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HomeMy WebLinkAboutUnion 24-07-03IN THE MATTER OF AN ARBITRATION BETWEEN: THE CORPORATION OF THE COUNTY OF NORTHUMBERLAND (the “Employer”) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 381 (the “Union”) AND IN THE MATTER OF A UNION GRIEVANCE CONCERNING THE RATE OF PAY FOR PARAMEDICS, #2018-0381-0002 ARBITRATOR ROBERT J. HERMAN APPEARANCES FOR THE UNION ANDREW MINDSZENTHY JOEL USHER FOR THE EMPLOYER MARK H. MASON LISA AINSWORTH JOAN DOUCET SUSAN BROWN A HEARING INTO THIS MATTER WAS HELD BY ZOOM ON JUNE 24, 2024 AWARD 1. In a decision dated September 7, 2023 (the “Award”), I determined the appropriate pay rate for a Primary Care Paramedic trained in Autonomous Intravenous procedures (a “PCP AIV”). The parties are in dispute over the meaning of certain statements or directions in that Award, and they have referred this matter back to me. 2. The Award stated: 1. This is a Union policy grievance challenging the rate of pay of a Primary Care Paramedic (“PCP”) who becomes trained in Autonomous Intravenous (“AIV”) procedures, referred to herein as a “PCP AIV”. The Employer, the County of Northumberland (the “County”), did not increase the wage rate of PCP AIV’s when they were trained in and began performing AIV’s. The Union, OPSEU Local 381, asserts that the rate of pay should have been increased. The issue of the appropriate wage rate for a PCP AIV was referred to me for determination. . . . . 33. . . . the Union asserts that an increase of 1.5% for the PCP AIV is justified and should be awarded, to be retroactive to the first shift worked by a PCP after certification as a PCP. . . . . 44. . . . The issue referred to arbitration is the determination of the appropriate wage rate, not whether the Employer’s decision was reasonable. . . . . 2 57. Based on the evidence before me, I conclude that the additional responsibilities and skills that are acquired and applied when one becomes a PCP AIV with the County merit some wage increase, and that the increase should be an increase of .5% of the current PCP rate. 58. It is appropriate that the increase be payable from when a PCP AIV began to work as such, since s/he should have been paid the increased rate as of that time. The increase shall accordingly be retroactively applicable to all shifts worked by a PCP AIV from the date of the PCP’s certification as a PCP AIV. (emphasis added) 3. The Union submits that the Award concluded that the new wage rate should be applied from when a PCP became AIV qualified, and that the new wage rate should be applied to all circumstances where it is to be applied under the Collective Agreement, including wages for hours worked, sick leave, vacation pay, and numerous other types of compensation covered by the Collective Agreement. The Employer submits that the new wage rate is only applicable to when “wages” are paid, whether for regular time or overtime work, which it asserts is for hours or shifts an employee works, and that the new rate does not apply to the calculation of other types of compensation, such as sick pay, vacation pay, compensation during leaves of absence, and so on. It bases this submission in significant part on the words used in paragraph 58 of the Award, where the last sentence states that the increase is to be retroactively applicable “to all shifts worked by a PCP AIV”. 3 4. Although I have not set out the full submissions of the parties, in essence, each relies upon a different interpretation of certain statements in the Award, and both seek clarification of the meaning of the initial Award in this respect. 5. The issue placed before me for determination in the Award, pursuant to Article 15.05 of the Collective Agreement, was the appropriate “wage rate” for PCP AIV’s, as is evidenced by the bolded passages set out above from the Award. I was not asked to consider whether any new wage rate would be limited to hours worked, nor to consider the impact of setting a new wage rate on other matters covered by the Collective Agreement, such as vacation or sick pay, nor did the parties make any submissions on such issues. Nor was I asked to create, nor did I create, a new classification under the Collective Agreement. The Award determined, rather, that it was appropriate that there be a new wage rate for PCP AIV’s. 6. I was also asked to determine whether the new wage rate would apply retroactively. The Union asserted in its submissions at the initial hearing that the wage rate increase should be “retroactive to the first shift worked by a PCP after certification as a PCP AIV” (cf. para. 33 of the Award). I concluded that the new wage rate should apply retroactively, and I used similar language in determining the point in time from which the wage rate increase should be retroactive. For this reason, paragraph 58 of the Award states that the new rate is to be applied to “all shifts worked by a PCP AIV from the date of the PCP’s certification”. I did not intend to find, nor did I find, that the new wage rate would apply only to hours worked. 4 7. That I made no finding limiting the application of the new wage rate to hours or shifts worked should be clear from the issue that was put before me, to determine the new wage rate, if any, pursuant to Article 15.05 of the Collective Agreement, and not to determine the circumstances in which any new wage rate would have application. 8. The findings made in the Award are also evident from a reading of the entire Award, the context in which paragraphs 57 and 58 are found, and the actual wording of those paragraphs. Paragraph 57 concludes that the current wage rate was to be increased by .5%, it says nothing about imposing the circumstances in which it was to be used or applied. Paragraph 58 also confirms that the wage rate was to be increased, and finds that the new wage rate would be retroactive as from the shifts worked by each PCP AIV after their certification for AIV. The Award did not decide that the new wage rate would be limited in application to hours worked. 9. However, the new wage rate was not directed to be retroactive from the date of certification of a PCP for AIV, as is asserted by the Union, but from the first shift worked after certification, as the Union had initially requested. 10. The Union asks now for a declaration that the rate of pay of a PCP AIV is applicable to all remuneration or compensation determined by the rate of pay under the Collective Agreement. I so declare. The particular circumstances where the Collective Agreement requires that the wage rate be used to calculate compensation are not before me for determination. 5 11. It asks also for an order to implement the new rate retroactively for all PCP AIV’s from the date of their certification. As noted above, the Award indicated (para. 58, first sentence), that the retroactive order for implementation was to run from the date a PCP AIV began to work after certification, not from the date of certification, and I confirm that direction. 12. The Union also requests that interest be directed to be paid on retroactive amounts owed that have not yet been paid, to be applicable and payable from the date of the instant hearing, which was June 24, 2024. It is not clear what the rationale is for interest to be owed from the date of the instant hearing. Rather, it is more appropriate that post-judgement interest, according to the customary calculation, be owed as of the date of the instant Award, and I so order. 13. I believe this resolves the remaining remedial issues, but if this is incorrect, I remain seized for any remaining remedial issues. Dated at Toronto this 3rd day of July, 2024 Robert J. Herman - Arbitrator