HomeMy WebLinkAbout1988-0915.Union.90-07-04 ONT*ARtO EMP&O¥E$ DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTAR~O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
DUNDAS. STREET WEST, TORONTO, ONTARIO. MSG 1Z.8~ ,.c;tJITE 2100 TELEPHC/NE/T~-I~-PHONE
RUE DUNDAS OUE3T, TORONTO. (ONTARIO) MSG 1Z8- BUREAU 2~.'O0 (416) 598.0688
915/88
iN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD'
BETWEEN:
OPSEU (Union Grievance)
Grievor
- and -
The Crown in Right of 'Ontario
(Management Board of Cab'inet)
Employer
- and -
'~BEFORE:' -- T.H. Wilson Vice-Chairperson
P. Klym Member
H. Knight Member
FOR THE C. Dassios
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE E. Hipfner
EMPLOYER: Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet
HEARING: January 23, 1989
DECISION
The Union grieves that the employer is violating Article 3
of the Collective Agreement by not allowing employees in
seasonally recurring positions to maintain their short term
sickness credits during their layoff period. The Settlement
desired is that provision'be made throughout all Ministries to
allow ~easonaily recurring unclassified staff to accumulate their
.earned short te~m sickness entitlement from one,contract to the
next.
The relevant provision of the Collective Agreement is
Article 3 - Unclassified Employees and in particular the parts
thereof dealing with Seasonal Employees.; being Sections 3.16 to
3 35. The specific provision relating to the issue raised is
Section 3.31.1 which provides:
ATTENDANCE CREDITS~AND SICK LEAVE
3.31.1 A seasonal employee shall earn attendance credits
of one and one-quarter (1 1/4) days for each
calendar month of~ full attendance. Attendance
credits may only be used for income protection
purposes in the event that an employee is unable
to attend to his duties by reason of illness or
injury.
In'support of its position that these credits are cumulative
from season to season, the Union submitted that the Collective
Agreement sets up a regime creating permanency of employment.
Counsel for the Union referred us to the following pr~visions:
2
3.16 Sections 3,17 to 3.35 apply only to seasonal
employee s
DEFINITION
3.17 A seasonal employee is an employee appointed for a
period of at least eight (8) consecutive weeks to
an annually recurring full-time position in the
unclassified service in a ministry. For purposes
of this definition full-time means a minimum of
thirty-six and one-quarter (36 1/4) or'forty.(40)
hours per week, as applicable.
PROBATIONARY PERIOD
3.18 The probationary period for a seasonal employee
shall be two (2) full periods of seasonal
employment of at least eight (8) consecutive weeks
each, worked in consecutive years in the same
position in the same ministry.
SENIORITY
3.19.1 A seasonal employee"s seniority within a ministry
will accumulate Upon completion of his
probationary period and shall include:
(a) all.hours worked as .a seasonal employee at
the straight-line rate;
(b) periods of authorized paid leave in
accordance with Section 3.31,. attendance
credits and Sick Leave.
3.19.2 A seasonal employee will lose his seniority when:
(a) he voluntarily terminates his employment
(b) he is dismissed (unless such dismissal is
reversed through the grievance procedure)
(c) he is absent without leave in excess of ten
(10) consecutive working days
(d) he is unavailable for or declines an offer
for re-employment as provided in Section 3.20
(Job Security), or
3
(e) he ceases to be in the employ of the ministry
for a period of more than twelve (12) months.
JOB SECURITY
3.20.1 Seasonal employees who have completed their
probationary period shall be offered employment in
their former positions in the following season on
the basis of seniority.
3.20.2 Where the Employer reduces the number of seasonal
employees prior to the expiry date of employment.
specified in the contracts of employment seasonal
employees in the same position shall be laid off
in reverse order of seniority
SEASONAL EMPLOYEE BENEFITS GENERAL
3.23.1 Salary shall mean only those earnings fr~m
scheduled straight-time hours during the contract
period.
3.23.2 Coverage for Basic Life~. Supplementary Health and
Hospital (including ViSion Care and Hearing Aid
benefits) and Dental Plan benefits shall commence
on the first of the month coinciding with or
immediately following two months of continuous
employment, except that' on subsequent consecutive
periods of seasonal employment which qualify the
employee for those benefits, coverage shall
commence on the first of the month coinciding with
or immediately following the start of the period
of employment
3.23.3 All coverage.under the Basic Life Insurance Plan,
the Supplementary Health and Hospital Plan
(including Vision Care and Hearing Aid benefits)
and the Dental Plan will cease at the end of the
month in which the contract of employment
terminates, except that an employee may continue
the coverage at his own expense during the periods
between seasonal employment by arranging to pay
the full premiums at least one (1) week in advance
of the first of the month in which the coverage is
to take effect through his ministry personnel or
payroll branch. Failure by the employee to pay
the full premiums as specified will disentitle the
employee to any further benefits under this sub-
section. There is a thirty-one (31) day grace
period following the month in which employment
terminates during which the Basic. 'Life Insurance
remains in force
3.23.4 During leaves-of-absence without pay during
periods of seasonal employment employees may
continue participating in Basic Life, Supple-
mentary Health and Hospital (including Vision Care
and Hearing Aid benefits), O.H.I.P. and the Dental
Plan by arranging to pay full premiums at least
one (1) week in advance of the first of the month
in which coverage is to take effect through their
ministry personnel or payroll branchl
3.23.5 Notwithstanding sub-section 3.23.3, all benefits
coverage under any of the provisions of this
Article shall cease at the end of the month in
which a seasonal employee's employment terminates:
(a) for any of the reasons set out in subsection
3.19.2, whether or not the employee has
completed his probationary period, or
(b) as a rssult of termination0f employment
under Section 3.33
In the Union's view these provisions recognize an on-going
relationship between the employer and the seasonal employee as
for example in 3.23.3 where a seasonal may continue his benefits
coverage. The Union submits that Section 3.31.'1 provides for
earning attendance credits and does not take them away.. This
contrasts with Article 13 especially Sections 13.4 and 13.5 which _
specifically restrict the accumulation of overtime credits.
%~ere the parties do not agree (Schedule 3 and 4 employees)
mutually on the time of compensating leave the Ministry "shall
reasonably determine the time of compensating leave". (Section
13.4) and specifically Section 13.6
13.6 Compensating leave accumulated in a calendar year
5
which is not used before March 31 of the following
year, shall· be paid at the rate it was earned.
Effective March 1, 1978, the March 31 date may be
extended by agreement at the local or ministry
level.
Similarly, Section 19.5 relating to Holiday Payment is
limited.
19.5 Any compensating leave accumulated, under sections
19.2 and 19.3 in a calendar year which £s not used
before March 31 of the following year shall be
paid at the rate it was earned. Effective March
1, 1978, the March 31 date may be extended by
agreement at the local or ministry level.
Again with respect to regular par~t-time Civil Servants and
their Article 64 overtime rights a similar type restriction
appears·in section 64.5.
64.5 Compensating leave accumulated in a calendar Year
which is not used before March 31 of the following
year, shall be paid at the rate it was earned.
The March 31 date may be extended by' mutual'
agreement.
The Union submits that where the parties sought to restrict
the use of accumulated benefits they have also·so provided. It
referred the Board to Schedule A in. Appendix 3 of the Collective
Agreement.
EXCESSIVE BUILDUP OF HOURS WORKED
When an employee's buildup of hours worked is becoming
excessive, he:
- may be required to take time off on an hour-for-hour
basis, in order to bring his hours accumulation into line
with the hours requirement for the averaging period, and
- will be given reasonable notice, where circumstances
permit, of any such time off.
Another e:~ample referred to was the "cap" on vacations set
out in section A7.5.
47.5 An employee may accumulate vacation to a maximum
of twice his annual accrual, but shall be required
to reduce his accumulation to a maximum of one (!)
year's accrual by December 31 of each year.
The Union points out that that differs from sections 3.23.3
and 3.23.5 which are set out at pages 3 and 4 of this Decision.
There is on the other hand no accumulation where seniority is
lost or notice given. The Union poses the question: does
section 3.23'.5 apply to attendance credits? Are attendance
cred~t~ (~ick ,days) "ben,fits coverage"? In the Union's view
credit3 which are earned should not be stripped away without
e~press contract language: see Sears and Ministry of Community
and Social' Services (G.S.B.) 1129/86) quoting from Re: Joseph
3rant ~lemorial Hospital of the Burlington-Nelsop Hospital and
Canadian Union of Public Employees, Local 1065, (1975) 5 L.A.C.
(2d !5 at PP 19-20.
,o.,~p_oy~ in its turn refers the Board to section 9 of
the Public Service Act.
9 A person who is appointed to a position in the public
service for a specified period ceases to be a public
servant at the e:-'piration of that period
7
The employer's Counsel submits that therefore upon the expiration
of the contract of employment, the employment relationship ends.
It is not just a gap. Seasonal work is recurring. Furthermore
section 3.31.1 speaks ,only of attendance credits. There is no
pay-out and therefore when the contract expires the rights cease.
Any rights under the Collective Agreement of employment expire at
the end of employment unless the Collective Agreement stipulates
that they continue. Furthermore because accumulation is
inconsistent with fixed term seasonal employment, the parties
have specifically so provided for their continuation and
accumulation in Article 3 where they so agreed. In this respect .
the employer refers specifically'to sections 3.19.1, 3.21.3 and
3.23.2. As for section 3.23.5 when the parties there speak of
benefits coverage they are talking about the payment of premiums
and 3.23.3 is also excepted under its terms. The benefits
coverage referred to in 3.23.5 includes therefore those in
sections 3.2~, 3.25, 3.26 and 3.27.
The Union in reply submitted that sections 3.19 and 3.21.3
are not benefits but are just.an advantage, so 3.23.2 is an
advantage, a qualification provision but has no accumulation.
Finally the Union submitted that the employer's position would
not ma]ce ~mployment sense since it would encourage employees to
use the sick leave credits up rather than lose them.
There are a number of points that need to be noted with
respect to these various submissions by the parties:
With respect to 3.129.1, that seniority provision gains
significance as a result of 3.20.1 and 3.20.2 - the job security
provisions. Furthermore, the accumulation claimed in 3.31.1 by
the Union is~claimed only as accumulation into the next contract
period, i.e. it is so to speak banked during lay-off and of
course by its terms relates only to its. use for income
protection. It is Of course true that the continuation of a
benefit beyond the~empl0yment period must find its source in the
Collective Agreement. But that only in turn poses the question
~hat does the Collective Agreement say about it. Sectf0n 3.23.5
is irrelevant to our inquiry since it is dealing only with
.unusual interruptions or non-renewals of the seasonal employee
status by which I mean where a seasonal contract is-not completed
or a new contract is not given to or accepted by the employee for
any of the reasons set out in 3.19.2 or pursuant to 3.33.
The basic issue is not an easy one to determine. It is not
in my vie~ correct for the Ministry to say that the employment
relationship is ended when a contract expires because section 3
has created seniority recall rights and those are not just
"benefits" that survive, they are inchoate rights to employment.
Furthermore, I do not find sections 3.21.3 and 3.23.2 as shedding
any light on the issue. 3.23.3 is more relevant in that it does
show that the issue of continuing the benefits therein has been
specifically addressed although they are of a different type
from attendance credits accumulation. References to sections
outside Article 3 which do not.apply to seasonal employees.are of
little value such as.47.5 which deals only with classified staff.
Seasonal ~mployees have a differen~ employment relationship from
that of classified staff: Article 3 has created a special code
for them %~ith a .specific type of job security and benefits
entitlement. It is virtually a collective agreement within a
collective agreement,
~uch of Article 3 in its present form is derived from the
interest Arbitration chaired by Mr. Swan whose award was released
on ~4ay 23, 1985. 'It seems to me that even though there is a
right under certain conditions to re-employment for .seasonals _
that'where' the benefits and conditions are either carried forward
past the end of an employment contract period or'banked as is
a~gued in the case of attendance credits that if that-is the
intention in the Collective Agreement it would be expected to be
explicitly set out in the Collective Agreement. It is not
specifically analogous to a continuing employment situation.
· Accordingly, I do not find that the Collective Agreement provides
for the banking of attendance credits beyond the expiry of a
10
seasonal con'cract of employment. Accordingly, the grievance is
dismisseci.
DaZed at Toronto this 4th day of July . 1990.
'~01~ ~'~:<l~'Sn vice-Chairperson
"I Dissent" (Dissent attached)
P. -Klym .Member
H. Knigl3t r. lembe r
DISSENT
915/88 OPSEU (UNION GRIEVANCE)
HANAGE~ENT BOAI~D OF CABINET
With great respect to the decision of the majority in this
case, I find that I must dissent from their conclusion.
However, it is clear that Attendance Credits and-Sick
Leave, spelled out in Article 3.31.1, are a "benefit". Besides a
common sense approach· that payment for sick leave is a benefit,
the parties themselves have confirmed this by including the
various payments for sickness absence for classified employees
under Part B of the Collective Agreement, entitled "Employee
Benefits".
These sick leave credits for seasonal employees are an
earned benefit for work performed - earned at the rate of '1 1/4
days for each calendar month of full attendance at work.
The Collective Agreement with respect to seasonal
employees does nog contain a pay' out provision for unused
attendance credits for sick leave at the end of a seasonal period
of work, as is true in other parts of the agreement regarding
earned compensating leave.
So what should happen to any. remaining attendance credits
for such leave?
To simply wipe them out at the end of a season of work is
not only unfair but I submit incorrect according to the C011e~tive
To~ simply wipe them out at the end of a season of work is
not only unfair but I submit incorrect according to the Collective
Agreement.
Arbitral jurisprudence, generally -is agreed that-it is
improper to wipe out an earned benefit unless the Collective
Agreement specifically provides f~r this.
Nowhere ~in this Collective Agreement is there such a
provision. Only Article 3.23.5 specifically, refers to the
cessation of all benefits, but, it only covers situations when
there is a termination and the employment relationship respecting
future recall is severed. It is the only provision specifically
dealing with a cessation of benefits and it clearly does not refer
to a situation of anticipated future recall.
In' addition, in my opinion, carrying over attendance
credits for s'ick leave makes good labour relations sense. If
these benefits are not carried over, this pe~rceived unfairness
could create a tendency to.use-up.remaining credits before the e~d
of the season for less than serious illness. This would hardly be
beneficial to the parties. Carrying over these credits would
allow for.. the 'reduction in financial hardships that'seasonal
employees could suffer from being unable to work due 'to genuine
illness with no significant additional duress on the employer.
Peter Klym._~ ~