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HomeMy WebLinkAbout1995-2298.LIGHTFOOT-UNION.99-04-14 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2298/95 2299/95 0124/96,0191/96,0228/960232/96 0572/97 OPSEU # 96B221, 96B222, 96B426, 96B440, 96B489, 96B492, 97B611 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (LIghtfoot et allUmon Gnevance) Grievor - and - The Crown m RIght of Ontario (Brant County Ambulance ServIce LImIted, MInIstry of Health) Employer BEFORE Loretta MIkus V Ice-ChaIr FOR THE Ed Holmes GRIEVOR Counsel, Ryder Wnght Blau & Doyle Barnsters & SolICItors FOR THE Steve Wilson EMPLOYER Counsel, Mathews, DInsdale & Clark Barnsters & SolICItors HEARING March 23, 1999 2 ThIs award deals wIth SIX mdIvldual gnevances and one polIcy gnevance all allegIng that the Employer has vIolated the collectIve agreement by denYIng the gnevors an addItIOnal week of vacatIOn. The relevant prOVISIOn of the collectIve agreement reads as follows ARTICLE 13 - VACATIONS WITH PAY 13 01 Employees WIll receIve vacatIOn wIth pay m accordance wIth credIted servIce WIth the Emplover as of Apnl1 of each vear as follows (a) Employees WIth less than one (1) year's contmuous servIce WIth the Employer shall receIve four (4) percent of earnmgs as vacatIOn pav (b) Employees who have attaIned one (l) year's contmuous servIce WIth the Employer shall be entItled to two (2) weeks vacatIOn WIth pay to be based on the normal work week. (c) Employees who have attamed two (2) year's contmuous service WIth the Employer shall be entItled to three (3) weeks vacatIon WIth pay to be based on the normal work week. (d) Employees who have attamed ten (10) year's contmuous servIce WIth the Employer shall be entitled to four (4) weeks vacation WIth pay to be based on the normal work week. (e) Employees who have attaIned fifteen (15) year's contInUOUS servIce with the Employer shall be entItled to five (5) weeks vacatIOn with pay to be based on the normal work week. (t) Employees who have attaIned twenty (20) year's contmuous servIce WIth the Employer shall be entitled to SIX (6) weeks vacatIOn with pay to be based on the normal work week. The gnevances all anse from the fact that durIng the hfe of the Social Contract Act, S 0 1993, C5 (hereInafter referred to as the "Act") all compensatIOn, mcludmg vacatIOn Improvements, were frozen from June 14,1993 to March 31,1996 All of the gnevors claIm that, accordIng to the collectIve agreement, they have attaIned the reqUISIte servIce to be entItled to an addItIonal week of vacatIOn, whIch has been demed. The Employer takes the pOSItIOn that It has comphed With the Act, wruch supersedes any obligatIOns It has under the collectIve agreement. The questIOn for thIS Board to determIne then IS the effect, If any, the 3 SOCIal Contract contmues to have on on vacatIOn entitlement after March 31, 1996 The relevant provIsIons under the Act are as follows Preamble In order to achieve slgmficant savings m public sector expenditures 10 a fair and eqUItable manner, the Government IS committed to faCilitatIng negotiations between representatIves of public sector employers and their employees for the purpose of maIntamIng effectIve and effiCient pubhc service Purpose The purposes of this Act are as follows. I To encourage employers, bargaining agents and employees to achieve savmgs through agreements at the sectoral and local levels primanly through adjustments m compensation arrangements 2 To maXImize the preservatIOn of pubhe sector Jobs and servIces through improvements III productivIty, Includmg the elimmation of waste and mefficience 3 To prOVIde for expendIture reductIon for a three year period and to proVIde cnteria and mechamsms for achlevmg the reductIons PART 1- GENERAL Definitions 2 In thIS Act, "compensation" means all payments and benefits paid or prOVIded to or for the benefit of a person who performs functIons that entitle the person to be paId a fixed or ascertamable amount: P ART VII - WHERE NO AGREEMENT OR PLAN 23 (I) ThIS part applIes to (a) those bargammg umt employees m respect of whom there IS no local agreement that meets the cntena set out III paragraphs I, 3, and 4 of subsectIOn 14 (1); and (b) those non-bargaInmg umt employees whose employer has not Implemented a non-bargammg unIt plan under sectIOn 16 by August 1 1993 (2) This Part does not apply to employees who earn less than $30,000 annually 4 excludmg overtime pay 24 (1) The rate of compensatIon of an employee 1S, for the penod begmmng June 14, 1993 and endmg 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 mcludes, (a) ment mcreases, (b) cost-of-hvmg Increases or other sImIlar movement of or through ranges, and (c ) mcreases resulting from any movements on any pay scale or other gnd system. (8) An employee is not entitled to any mcreases m compensatIOn after March 31 1996 by way If, (a) ment mcreases (b) cost-of-hvmg mcreases or other SImIlar movement of or through ranges, or (c ) increases resultmg from any movements on any pay scale or other grid system except as prescribed by regulation, in respect of employment dunng the penod begmnmg June 14, 1993 and endmg March 31, 1996 52. The proVISIons of thIS Act and the regulatIons prevaIl over the prOV1SIons of any other Act and the regulatIons thereunder but only to the extent necessary to carry out the mtent and purposes of thIS Act. Mr Holmes, counsel for the Umon, agreed that Increases In vacatiOn entitlement were frozen dunng the lIfe of the Act. He also made It clear that the Umon was not seekIng to recoup vacatIons lost durIng the Social Contract Act However, It argued, the Act dId not make any reference to servIce and semonty The Employer's InterpretatIOn would read mto the Act a hIatus or freeze III the accumulatIOn of semonty and, more speCIfically servIce that would continue long after the Act itself has ended. According to the Employer s mterpretation, an - 5 .. employee would never be credIted wIth servIce for the period of the Act. The Umon submItted that Its InterpretatIOn IS more consIstent WIth the purpose of the Act. SectIOn 52 states that the Act and Its regulatIOns take precedent over any other acts but only to the extent necessary to achIeve the purposes ofthe Act. The purpose ofthe Act, and sectIOn 24(8) m partIcular, was to encourage expendIture reductIOn for a specIfied penod of tIme that IS from June 14, 1993 to March 31, 1996 Clearly, sectIOn 24 (8) was mtended to apply only to that tIme The Act does not contemplate savmgs beyond March of 1996 The effect of the Employer's mterpretatIOn IS to contmue those enforced savmgs beyond the tIme specIfied m the Act. ThIS Board should reqUIre very clear language before It would take away an employee s nghts under a collectIve agreement. It asked the Board to follow the declSlon of ArbItrator R. Brown In Re Sudbury & District Ambulance Services and CUPE, Local 2412 (February 5,1998) (unreported). In that case the Board was asked the same questIOn as thIS Board, that IS what happens after March 31, 1996 regardmg vacatIOn entItlement. It read sectIOn 24(8) to restnct the applIcatIOn of the Act to the penod set out m the Act, that IS June 14, 1993 to March 31, 1996 The Umon also suggested that the mterest award of ArbItrator Mitchmck (Re York Region Board of Education and Ontario Secondary School Teachers' Federation (August 31, 1994) unreported) supports Its pOSItIon. In the alternatIve the Umon asked the Board to follow the reasomng m Re Kitchener and Waterloo RegIOnal Ambulance (1987) Inc. and CanadIan Umon of Pubhc Employees (Apnl 7,1997), unreported (Raynor) m whIch the Board took a mIddle ground and found that employees who had not moved from one pOSItIon to another on the gnd durmg the term of 6 the Act were not affected by Its terms but those who had moved were Mr Wilson, counsel for the Employer, took the pOSItIOn that sectIon 24 must be conSIdered m the larger context of the entIre Act. At the tIme It was enacted the provmcIaI figures showed that the Government was approxImately 72 bIllIon dollars m debt. The Act was to proVIde a mechamsm to force employers, employees and Unions to help the government control the provmcIal debt by lImltmg the compensatIOn paId to ItS employees for a penod of tIme and by reducmg expendItures. The Act proVIded two methods to reach Its expendIture reductIOn targets, by agreement or by the legIslated "faIl safe" method set out III Part VII. In thIS case the partIes dId not reach an agreement and are governed by the fall safe method. The result IS that all compensatIOn, mcludmg vacation mcrements, were frozen and that, the Employer mamtaIns, means that employees are not entItled to credIt for servIce for purposes of vacatIOn entItlement from June of 1993 to March of 1996 That mterpretatIOn IS entIrely conSIstent WIth the purpose of the Act. In fact, submitted the Employer, sectIOn 34(3) states clearly that Part VII preVaIls over any proVISIOn that relates to holIdays, vacatIOns, hours of work or overtIme pay In any other Act or regulatIons thereunder or m any collectIve agreement. It IS arguable whether any actIOns of the Employer concernmg these Issues can be challenged gIven that clear language In any event, what that sectIOn does IS hIghlIght the Importance of thIS Issue The Issue before thIS Board IS whether s.24(8) prevents what has been described as a balloomng of benefits. The Employer pomted out that there has been no gnevance from the 7 Umon or Its members about the lost servIce credIts for purposes of wages. If the Umon IS correct m Its mterpretatIOn about vacatIon credIts, It ought to have pursued lost wages Increments as well. The Employer submItted that the JUrIsprudence IS more conSIstent WIth Its pOSItIOn and that the Brown declSlon stands alone It referred the Board to the follOWIng cases Re The Government of Ontario (Ministry of Finance) and Ontario Public School Boards Association and Ontario Separate School Trustees' Association and Ontario Teachers' Federation and its five Affiliates (August 22, 1995) unreported (Shlme), Re Participating Ambulance Services and Ontario Public Service Employees Union (AdVISOry Opimon Award) (May 9, 1997), unreported (Knopf) Re Toronto Board of Education and Canadian Union of Public Employees, Local 134 (Plant Operation and Maintenance) (November 4, 1997), unreported (Knopf) and Re Victorian Order of Nurses and Ontario Nurses' Association May 11, 1998) unreported (Kaplan) I, i DECISION Before conSIderIng the merIts of thIS case, a reVIew of the apparently conflIctIng JurIsprudence IS necessary The Shlme award seems to be the startmg pOInt for many of the awards that followed. One of the questIOns put to hIm was whether a teacher at level two when the freeze began would go to level five when the SOCIal contract penod was over m other words, was balloomng allowed. He assumed that the fall safe provlSlons under the Act prohibIted balloomng and came to the conclUSIOn that the sectoral agreement between the 8 partIes must be gIven the same meanIng. He determIned that the school boards would not have agreed to a plan that allowed for substantIal future mcreases when It could have SImply relied on the fall safe measures under the Act to aVOId that result. The next deCISIOn relIed on by the Employer IS an advIsorv opmlOn of ArbItrator Knopf Involvmg 44 ambulance servIces, mcludmg thIS one, and OPSEU One of the questIOn before her was what an employee's vacatIOn entItlement would be after Apnll, 1996 On page 10, she stated the followmg' Section 24(8) of the Act dictates to the parties what wIll happen after March 31, 1996 It speCifies that an employee IS not entitled to "any ITIcreases ITI compensatIon by way of (e) Increases resultmg m any movement on any pay scale or other gnd structure With respect to employment under the SOCial Contract penod Therefore, as of AprIl 1, 1996, employees are not entitled to any increases that would have accrued by way of theIr employment or servIce for purposes of calculatmg their rates of payor vacation. The Emp loyer's charactenzatIOn of thIS as creatmg a hiatus IS appropnate The Social Contract Act has Imposed a hiatus m types of compensatIon dUrIng the SOCial Contract penod. The hiatus created ITI sectIons 24( 1) and (3) means that no credIt IS given dUrIng the SOCIal Contract perIod. Then, Section 24(8) dictates that the hiatus remain effectIve after March 31, 1996 But for Section 24 (8), it would be appropnate to assume that effective Apnl 1, 1996 employees would revert to the pomt m the wage or vacation grId that would be determmed purely by their collective agreement. In that case, the effect of the SOCial Contract would have been to depnve them of their entItlements by wav of gnd movement solely dUrIng the Social contract period. However, Section 24(8) goes further and means that employees cannot revert to a readmg ofthelr collective agreements on Apnl I 1996 WIthout regard to the Social Contract Act The partIes then must calculate grId placement for compensation items speCIfied m Section 24(8), (a) through (c), Without regard to any employment dUrIng the SOCial Contract period. F or greater clarIty the Board went on, at page 11 to say' Similarly the collective agreement creates a vacation entitlement based on contmuous service. The collective agreement would credit employees for every year of service. However, the parties agree that their vacatIOn entitlement IS calculated bv way of a "grid 9 system" and whIch amounts to compensation which IS affected by SectIOn 24 of the Act. GIven that agreement, but for the Social Contract Act, an employees who commenced employment on January 1, 1980 would be entttled to five weeks vacation after more than 15 years' service on Apnl 1, 1996 But the Social Contract Act dictates no mcreases m movement on the vacation grid in respect of employment for the June 14 1993 to March 31 1996 penod. Therefore, those employees entItlement to move to the five week category must be calculated by glvmg a hiatus m credIt for the specIfic SOCIal contract penod. Those employees wIll move to the next catcgOly when their employment amounts to greater than the reqUired number of years service Without regard to the tIme worker between June 14, 1993 and March 31, 1996 That same arbItrator when faced With a SImIlar questIOn concernmg the nghts of a probatlOnary employee to an mcrease m compensatIon after Apnl 1, 1996 but due durIng the SOCIal contract penod, came to the same concluslOn for the same reasons. The last case, the YON case (supra), concerned a questIOn of whether vacatIOn entItlement under a gnd or servIce dnven collective agreement was to be calculated as if service accrued durIng the SOCIal Contract penod or as If the day after June 14, 1993 was Apnl 1, 1996 At page 4, It referred to the Knopf award as follows In our View, the above award case IS dlSposlttve of the Issue for we too read sectIon 24(8) as prec1udmg, on eXit, the commg mto effect of any mcrease in compensatIOn resultmg from movement on a grid or scale - the very scheme established in the collectIve agreement before us WIth respect to vacatIon entItlement. As Arbitrator Knopf noted In another award" .Section 24 operates to prevent an employee from accumulatmg any credIt dUrIng the SOCIal contract years. In other words, It assumes that the Social Contract Act prevents balloon mg. In my VIew, these cases are also dISpOSItive of the matter I also read the Act to mean that employees are not entItled any Increase In compensatIon resultmg from movement on a gnd with respect to employment during the Social Contract. I am of the VIew that the Brown award come to a different conclUSIOn because It read out the words "WIth respect to employment" With respect, I dIsagree If the leglslators had mtended the Act to lImIt mcreases in compensation only between June 124, 1993 and March 31, 1996, It would not 10 have specIfically prohIbited Increases In compensatIOn with respect to employment after March 31 1996 A lIteral and purpOSIve readmg of the Act leads to the mescapable conclusIOn that the Employer's mterpretatlOn IS correct. The gnevance IS therefore dIsmIssed. Dated thIS 14th day of Apnl, 1999 ,.... /wI4 )d~~ Loretta Mikus, Vice ChaIr