Loading...
HomeMy WebLinkAbout1993-1514.Policy.94-11-29 " ~ ~ \ - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT i BOARD DES GRIEFS 180 OUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG lZ8 - TELEPHONEITELEPHONE(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE (416) 326-1396 - - 1,514/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ) THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Policy Grievance) - Grievor - and - The Crown in Right of Ontario (Ministry of Health)Royal City Ambulance Serve I Employer I I BEFORE B. Kirkwood Vice-Chairperson " I. J. Thomson Member F. Collict Member FOR THE G. Adams GRIEVOR Grievance Officer Ontario Public Service Employees Union \... , -'-- FOR 'l'HE D. Daniels EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING April 27, 1994 . ~. . . J r. Page 2 '-. ,- -.. DECISION _~ .-. The employer froze all vacation credits for employees whose anniversary date fell after June 13, 1993 and who would normally have received additional vacation credits between June 13, 1993 and March 31, 1996 on the basis that it was acting in accordance to the Social Contract Act 1993, c.5 (hereinafter referred to as "the Act"). The freeze affected two employees this year. The union grieved the freeze and claimed that. the ( employer's actions violated the. vacation accrual provisions of \ article 22 of the collective agreement. The grievance sought rescission of the employer's notice that it was stopping progression through the vacation grid during the term of t.he Social Contract legislation, and sought full compensation with interest for any individual negatively affected. ~he employer ,defended its position by stating that it had no choice but to act in accordance with sections' 24, 25 and 26 of the Act. Employer's counsel argued that provided the employer's aqtions were according to section 24, by application of section 34 of the \ the Grievance Settlement Board has Act, no jurisdiction to hear th,is dispute. The union argued that the employer was not bound by section 24, and was seeking a declaration that the employer's actions were not in compliance with sections 24, 25, and 26 of the Act. ) \ . -- - -- - ~. -- -----. --,~~ .' - ..~ .:.; ;;". --; - , . . "';;E:'~~_~__-,---;'_ .,.:-'..:":"~~--~~'":"'~\~ ~---'- \ i' 1,\ Page 3 .- _ ____ _~he union agreed that if the employer's actions were in ~ -~-- _..- .-- ~-------- -- ~- - ~ccordance with section 24 that the union could not grieve the employer's actions and the grievance was inarbitrable. The parties therefore agreed that it was necessary for the Board to resolve the jurisdictional issue before the Board co~ld make any decision on the merits. \ Employer's counsel submitted that vacations are a benefit provided to the employees and are included in the definition of I'compensation" as set out io. section 2 of the Act The "rate of compensation" as set out in section 24 of the Act, and Regulation 589 of 1993, A Regulation to Amend Ontario Regulation 454, therefore encompasses the accrual of vacation benefits. Employer's counsel argued that the rate is then fixed at the rate as of June 14, 1993. Employer's counsel also argued that the rate of compensation in section 24(2) (c) prevents movement on I'any pay scale of other grid system" and includes , grids applicable to other benefits and is not applicable only to pay grids. Employer's counsel argued that the intention of the legislation is to save money and not to defer entitlements. This freeze is consistent with the purpose of the legislation as set out in section 1.3 of the Act, to provide an expenditure reduction for a three y~ar period and to achieve savings. Although provisions can be exempted by regulation, there have been no I i . . . \ Page 4 regulations exempting vacation entitlements as of yet. In any ~ eve!lt, the employer argued that what occurs with the vacation , - .- credits that would be accrued but for the Social Contract legislation does not have to be decided at this time. Furthermore, the employer has not set out its position on vacation credits as of March 31, 1996. The union's representative argued that vacation does not come within the definition of""compensation" as set out in section 2 of the Act and it is not governed by section 24. He submitted , i that the definition of "compensation" in section 2 refers to monetary value, take home money and not to a banked credit. He argued that vacation is only a paid benefit if it is a percentage of salary, but is not a paid benefit if it refers to the numbers 1 of days off. As salaries do not increase, the employer could increase the numb~r of days of vacation received or accrued. The union's representative argued that even if vacations were included within the definition of compensation, the employer could not freeze the number of days of vacation that were to be received by \ ( the employee, but can only freeze its value. Scheduling employees off for vacation does not save money as set out in section 1 and therefore does not fall within the purpose of the Act. The union's representative submitted t~at if legislation is capable of supporting two meanings, it should be interpreted in I favour of supporting vested rights (the unreported decision of victorian Order of Nurses - Simcoe County Branch and Ontario - . . ' _t'C._ ~ , ,. .---'-',-. ',~"''''I - < J Page 5 j Nurses' Association (November 26, 1993) (Kaufman). He argued that even if rate did apply to v~?ations, sections 24 (4) (5) (6) provided for a unilateral option by the bargaining agent. The Social Contract Act, 1993, c.5 received\.R9yal Assent on July 8, 1993. The relevant sections state: i , 2. "compensation" means all payments and benefits l paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount: ("retribution") " 24. (1) The rate of compensation of an employee - is, for the period beginning June 14, 1993 and " ending with March 31, 1996, fixed at the rate that was in effect immediately before June 14, - 1993. (2) For greater certainty, "compensation" in this section includes, (a) merit increases; (b) cost-of living increase or other similar movement of or through ranges; and (c) increases resulting from any movements on any pay scale or other grid system. (4) An increase in compensation after June 14, 1993 under a collective agreement existing on that date is void. (8) An employee is not entitled to any increase in compensation after March 31, 1996 by way of, \ (a) merit increases; (b) cost-of living increase or other similar movement of or through ranges; or (c) increases resulting from any movements on any pay scale or other grid system, except as prescribed by regulation, in respect of employment dur ing the per iod beginning June 14, 1993 and ending March 31, 1996. ) . .~,. '. .... ~... .';, _,,,,,' 1"' _"::",:,'" . '- . _... ~_.~--- " Page 6 ~ ,-, - -.- ---- -~-- 3_~.__t;D_ _ This Part prevails over any provision that relates- to holrdays, vacatioi1s~ notii:'s-of---'--- work or overtime pay in any other Act or the regulations thereunder or in any collective agreement. (4) '. of employer taken in Act~ons an accordance with section 24, 25 or 26 shall not be the subject of any proceeding brought by any person against an employer~ I (5) An employee has no right to grieve under the Public Service Act or any other Act or collective agreement in respect of actions taken by his" or her employer in accordance with J section 224, 25, or 26. Pursuant to s. 34 (3') of the Act, this Part of the Act / prevails over any provision in any collective agreement relating to vacations. Section 34(4) says that actions of the employer taken in\ accordance with sections 24, 2S or 26 shall not be the subject of any proceeding brought by any person against the employer. Section 34(5) sta~es that an employee has no right to grieve under any act or collective agreement in respect of actions taken by an employer in accordance with section 24, 25, and 26. , Therefore, if the actions of the ~mployer are in accordance with sections 24, 25 or 29 of the Act, even if they are inconsistent -- with the collective agreement, we do not have jurisdiction to determine the dispute. However, if it can be shown that the employer's actiops are not governed by section 24 of the Act, then we have jurisdiction to interpret the collective agreement and make a determination. / i { . - -- ,-,...._..... # ,. ...-.,~.- -- -:,......r~.~-..'~:' '1'-" \ - .) Page 7 The issue is, does the rate of compensation as referred '_'~_ ~~ in sec_t!.on_ 2.!~,__enco!llpass the ac:crual of vacation credits, and I if so, is it fixed at the rate accrued as of June 14, 1993. Section 2 of the Act has defined "compensation" and it specifically includes Ilbenefi ts paid or provided to. . . " an employee. Inrour view, vacation is a benefit, that may be "paid - to" an employee as a percentage of gross earnings or is "provided to" an employee as days off with pay, and therefore vacations are benefits that fall within the definition of compensation as set I out in section 2 of the Act. \ As section 2 prefaces the definitions by stating "in this Act", we find that, the definitions in section 2 of the Act are to be used in interpreting section 24 of the Act. Section 24 does not exclude the definition of Ilcompensation" nor does it modify it. We do not accept the union's argument that the list of types of compensation in section 24(2) is exhaustive and therefore excludes benefits, such as vacations. We interpret "for greater ( certainty" in section 24 as clarifying certain ~nclusions. Any doubt as to whether "compensation" includes benefits, has been erased by Regulation 589 of 1993, A Regulation to Amend Ontario Regulation 454, which uses the same wording as found in section 2 and states: 4. In section 24 of the Act, "rate of compensation" includes, in addition to wages and salary, all benefit.s paid or provided t.o an employee for t.he performance of his or her dut.ies as an employee ( ou r . _ .- _ _ ,..~,..~.. . .:.:;.,.'t~L":.!:.Z'~"":~.I'-:;;L..",' -- ~ _' ~. _".' ,_. r..::..~ _ : ,;.:..,::. _ _ ~_ _ ..... _. _ . -- __________'----"----._---------.c_ Page 8 ) emphasis) . - --- --- ----- ~- Therefore we conclude that vacations are benefits that fall within the ambit of section 24 of the Act. We interpret "rate of compen~ation" in section 24, as referring to the terms of reference that the parties use in their respective situations in determining the level of compensation or benefit, as 'rate' is as individual as each parties' agreements. In this case the level of the vacation benefit, the number of days 1\ off with pay, was determined by the number of years of accredited I seniority the employee had obtained. For those with less than one year seniority, however, it was a payment of 4% of gross earnings. Section 24 freezes "the rate of compensation" of an employee for the period from June 14, 1993 to March 31, 1996 and sect'ion 24 ( 3 ) voids any increase in the resulting compensation after June 14, 1993. We cannot agree with the union's submission that as the salary does not increase, the days off with pay can increase, as ., . is defined broadly and as st'ated above includes Ifcompens,at~on " benefits. Therefore; the vacation benefits are fixed as of June 14, 1993. The union suggested that the union could makes its () election as set out in section 24(5)(6)(7). However, this issue is not before us. There was no suggestion that such an election had been made and there was no argument on the application and results of these sections. As a result of section 34(3), this Part of the Act'l J . -- ------- ..,...,..",,,,,,-1 if. -" - ~ f Page 9 \ l i ! which incl!1des sections 24 and 34, prevails over any provision --- that r~lates to vacations in any collective agreement. Therefore - - --. -_. "-_."-- sections 24 and 34 of the Act prevafl over the rights conferred in the parties' collective agreement. We do not, disagree with Arbitrator Kaufman when she states: In interpreting a statute, there is a presumption against the statute interfering with vested rights: Spooner oils Ltd. v. Turner Valley Gas - Conservation Board [1933] S.C.R. 629, cited in E. A. Dreidger, The Construction of Statutes. Toronto: Buttersworths, 1974 at p. 137. That presumption does not apply where the language is clear. However, where the provisions can reasonably bear two meanings, in the absence of any qther conclusive indication of parliamentary intent, it may be assumed that the legislature did not intend to disturb existing rights: Dreidger, ibid., p. 138-139. However, the Act does deprive employees of vested rights, and in this case by the enactment of the supporting regulation clearly includes benefits in its definition of compensation and therefore we find that in this case the employees vacation benefits are frozen as of June 14, 1993 as a r~sult of I section 24. Therefore, although freezing the accrual of vacation benefits is in violation of the collective agreement, it is in accordance with section 24 of the Act, and is therefore inarbitrable pursuant to section 34 of the Act. We do not have to rule on what occurs after March 31, 1996, as we do not know how the employer will act, and if there is a violation at that time, and if the Act and its regulations remain in the current form. \ ) (' .I < . .I ",'r", ;- -- -..- --"-- - - ~ ," page 10 Therefore, this grievance is dismissed. Dated at North York, this 29th day of November 1994. . , ~~ ~ 9'. Member :.;. /' . ( "I. J. Thomson w:lth addendum" , " Membe!:' "- '\ . -- -- --""'~7"r' <: ( G S.B # 1514/93 OPSEU and -, ...--~- Ministry of Health (Royal City Ambulance) ~? ADDENDUM \. As the Award states on Page 9, the Social Contract Act depnves employees of certain rights mcludmg vacation credits. \ When this Act expires in March 1996, the Government should allow retroactive accrual of the vacatiOn cre(hts. ~~~~ j I J Thomson I - ( \ / \ . -.. -----