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HomeMy WebLinkAbout1976-0077.CUPE.77-11-1677/76 CROWN EMPLOYEES 416/964 6426 Suite 405 GRIEVANCE SETTLEMENT 7j BZoor Street West BOARD TORONTO, Ontario M5S IMP? IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Housing Corporation Employees Union Local 767 CUPE And Ontario Housing Corporation Before: K. P. Swan Vice&Chairman E. J. Orsini Member 0. Anderson Member For the Grievor: * Mr. P. J. O'Keefe,, Assistant Regional Director, Canadian Union of Public Employees For the Employer: Hearing: Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Toronto, Ontario September 30th, 1977 Suite 405, 77 Bloor St. W. Toronto, Ontario P 2. This grievance, filed by the union and alleging a contravention of the agreement affecting employees of the Corporation outside Metropolitan Toronto, deals with the proper method of payment of wages expressed as an annual wage in the agreement. At the present time, the employer pays the wages, apparently in accordance with article 23.01, on a bi-weekly basis. It is necessary for this process to calculate a weekly rate, and the employer has done so, for some time, as follows: 1. In a leap year, there are 366 days which, divided by 7, yields 52.285Jl.weeks 2. In a normal year, there are 365 days which, divided by 7, yields 52.14285 weeks 3. Therefore, over a four year cycle, the average number of weeks per year is 52.17857. To calculate weekly wages, therefore, the employer has always divided the annual wage by 52.17857, and has paid twice this amount on a bi-weekly basis. The union now objects to this practice, and submits, with a great deal of common sense, that there are 52 weeks in a year, and that should be the divisor to calculate a weekly wage. Indeed, it says, it can hardly be expected that parties would have negotiated a collective agreement with any other figure in mind - the commonly accepted number of weeks in one year is 52, and anyone claiming that the intention was otherwise bears the onus to establish the unusual meaning. With respect, although we can see the logic behind each of their positions, we do not think either party is correct in its 3. proposed interpretation. The agreement has very little to say about this subject, but what it does say, it seems to us, is perfectly clear and unambiguous. Article 23.01 requires bi-weekly payments, but offers. no assistance in calculating the amounts to be paid. Article 14 says simply that, for employees in certain categories they are to be paid certain amounts as an annual m. The collecti've agreement runs from January 1, 1976 to December 31, 1976 - for one year exactly (although it now continues in effect by virtue! of SeCtiOn 21(z) of the crown Employees Collective Bargaining dct.). It therefore follows that each employee on an annual wage is entitled to be paid (in respect of wages only), during the course of the year, exactly that annual wage - no more and no less. That amount must be paid in bi-weekly instalments, but the agreement is silent on the precise method of calculation. Therefore, in our view, any payment mechanism which yielded precisely the correct amount over the calendar year and came reasonably close to equal bi-weekly instalments would not be a breach of the collective agreement. Even the union's proposal to pay 2/52 of the annual salary every two weeks is not objectionable, but the employees would have exhausted all of their pay credits after 52 weeks, and would not be entitled to payment for the last day (or two days, in a leap year) of the year. The problem with the employer's calculation, however, is that whereas it would apparently overpay the employees during a leap year, it would probably underpay them slightly during a normal year. 4. In our view, the union might properly bring a grievance at the end of a normal year for under-payment of its members if the employer's formula were applied. As luck would have it, however, 1976 (the year on which this grievance is based) was a leap year, and therefore the grievance applies to a period during which the employees concerned were probably overpaid (in respect of wages) in relation to their entitlement under the agreement. Although they are now likely being slightly underpaid in 1977 in relation to the contractual provisions, they would not actually ever repay the over-payment in 1976 were wage rates to remain steady, since the employer's formula actually works out to be slightly advantageous to these employees. We stress that no evidence was before us of exact sums actually paid to individuals, and we are thus only drawing what appear to be reasonable inferences. In the result, therefore, the union is correct in saying that the employer's system is not in strict accordance with the collective agreement, but no remedy apart from a declaration would likely be available since,employees may well have been overpaid as a result of the contravention. We therefore declare that the employer's calculation is contrary to the collective agreement, and that weekly wages should be so calculated so as to yield the annual wage, no more and no less, over the term of the one-year collective agreement. In a leap year, division by 52.28571 would yield this result; in other years, division by 52.14285 would be appropriate. Division by 52 would also be possible except that there would be unpaid time at the end of the year. With great respect, we suggest to the parties that this is 5. a matter which ought to be resolved in negotiations, which we understand are now taking place. There is nothing wrong with the employer's method if both can live with it, nor with any of the other methods discussed. It is also perfectly easy to put all employees on a weekly wage, if that would end,the sense of injustice which the union says is perpetuated by the present system. In any event, we have no juris- diction to do anything except interpret the collective agreement, and that we have done. The task of removing the cause of this dispute must be left with the parties. Dated at Toronto this 16th day of November 1977. K. P. Swan Vice-Chairman (I concur) E. J. Orsini Member (I concur) D. Anderson. Member