HomeMy WebLinkAbout1983-0613.Jensen.84-08-20IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Doreen M. Jensen)
Grievor
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, The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
Before: P. Draper Vice Chairman
P. Craven Member
W. A. Lobraico ~Member
For the Grievor: N. Luczay
Grievance Officer
Ontario Public Service Employees Union
For the Employer: W. J. Hayter, Counsel
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
Hearing: May 9, 1984
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, i
DECISION -------- .====z==---__--_
The Grievor, Doreen Jensen, grieves that she has
been denied the maternity leave allowance to which she is
entitled under Article 49.3.2(b) of the "working conditions"
collective agreement and requests payment of allowance owing,
with interest. The Employer consenting, the grievance was
amended at the outset of the hearing to include reference to
Article 49.3.2(a).
The Grievor went on maternity leave on January 31,
1983. The ~allowance she received was based on her then current
salary. In the early months of 1983, the Employer and the
Union were negotiating the renewal of the wage agreements that
had expired on December 31, 1982.. (Employee rights are found
in a number of documents having the force of collective
agreements and which togetherconstitute a "master'agreement.O
See Sysiuk et al, 191179.) The new wage agreements were
concluded in March, 1983, and provided for a wage increase
retroactive to January 1, 1983. The retroactive wage increase
was not applied to the Grievor's maternity leave allowance,
hence the present grievance.
Under both paragraphs (a) and (b) of Article 49.3.2,
the maternity leave allowance to which an employee is entitled
under the Supplementary Unemployment Benefit Plan is stated to
be the equivalent of 93 per cent "of the actual weekly rate
of pay for her classification, which she was receiving on the
last day worked prior to the commencement of the maternity
leave."
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c, ,. In Re Salvation Army Grace General Hospital, Ottawa,
25 L.A.C.(Zd) 235(Carter, 19801. the arbitrator notes the trend
of arbitral interpretation to consider retroactive duration
clauses to apply to the collective agreement as a whole except
where to do so would lead to absurd, impractical or unintended
results, and goes on to state: "This assumption of retroactiv
however, is not all-embracing. Obviously, it does not apply
ity,
in the presence of clear and specific language in the collective
agreement to the contrary." This seems to us to be an eminently
sensible ru 1’
can 'be made
for another
appropriate
e of construction. A collective agreement provision
to apply retroactively for one purpose but not
its application_can be excluded by the use of
language.
It would be difficu
more clearly and specifically
It to choose language that would
bar the appl ication of a retro-
active wage increase to the calculation of a maternity leave
allowance than does that found in Article 49.3.2. That
language, we conclude, expresses the intention of the parties
to the collective agreement that a maternity leave allowance
the employee
in time
will be based on the wage or salary being paid to
("which she was receiving")
("on the last day worked pr
maternity leave").
at a particular. point
ior to the commencement of the
We are satisfied that the effect of the words of
Article 49.3.2, given their plain and ordinary meaning, is
that the retroactive wage increase to which the Grievor
became entitled cannot be taken into account in the calculation
of her maternity leave allowance. ,
-
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x. - , In the view we take of the case, it becomes
unnecessary to make reference to the Unemployment Insurance
Act and Regulations for purposes of interpretation of
Article 49.3.2.
The grievance is dismissed.
DATED at Consecon, Ontario, this 20th day
of August , 1984.
P. Draper, Vice Chairman
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f ~
\,/p. Craven, Member---'~
" W. A. Lb~bCaico, Member
ISC