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Home My WebLink About1997-1337.Ashley & Policy.98-02-18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE800, TORONTOONM5G 1Z8 TELEPHONE/TELEPHONE (4M) 32~-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (41~) 326-13~ GSB # 1337/97,2078/97 CUPE 2487 # 03,04 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETfLEMENT BOARD BETWEEN CUPE 2487 (Ashley/Pohcy Gnevance) Grievor - and - The Crown m RIght of Ontano (Mamtoulm Ambulance ServIce) Employer BEFORE R. Brown Vice-Chair FOR THE R. Carnovale UNION NatIOnal RepresentatIve Canadian Umon ofPubhc Employees Local 2487 FOR THE D Robmson, Q C EMPLOYER Counsel Mathews, Dmsdale & Clark HEARING February 3, 1998 DECISION V ACA TION ENTITLEMENT AND THE SOCIAL CONTRACT ACT (GSB file 1337/97) TIllS gnevance concerns the effect of the Social Contract Act on vacation entitlement after March 31, 1996 Under thIS collectIve agreement, as tmder most others, the amount of paId vacatIon accruIng to an employee Increases wIth length of servIce The partIes agree that the Social Contract Act froze vacatIOn entItlement from June 14, 1993 until March 31, 1996, notwIthstandmg the accnIaI of servIce In the mtenm The freeze was Imposed by s 24(1) The rate of compensatIOn of an employee IS, for the penod begmmng June 14, 1993 and endmg March 31, 1996, fixed at the rate that was m effect lllunedlately before June 14, 1993 As s 2 defines compensatIon to mclude "all payments and benefits", the effect of s 24(1) was to freeze vacatton entttlement from June 14, 1993 until March 31, 1996 The dIspute concerns what happens after March 31, 1996 and anses from s -1- 24(8) of the legIslatIon An employee IS not entItled to any Increases m compensatlOn after March 31, 1996 by way of, (a) ment Increases, (b) cost-of-hvIng Increases or other SImilar movement of or through ranges, or (c) Increases resultIng from any movements on any pay scale or other gnd system, except as prescribed by regulatlOn, In respect of employment dunng the penod begInmng J tIDe 14, 1993 and endIng March 31, 1996 The employer has Interpreted thIS provISIon to mean employees will never receIve any credIt for the penod between June 14, 1993 and March 31, 1996 In other words, the employer has subtracted thIS penod from each employee's servIce for the purpose of calculatIng vacatIon entitlement. The umon contends s 24(8) has no applIcatIon to vacatlOn entitlement relatmg to employment after March 31, 1996 AccordIng to tlllS lIne of argument, s 24(8) merely prevents an employee from -2- claImmg, after March 31, 1996, vacatIon entItlement for the penod between June 14, 1993 and March 31, 1996, where such entItlement IS based upon servIce between these two dates VIewed 10 thIs way, s 24(8) merely ensures an employee does not receIve after March 31, 1996 compensatIon for the penod between June 14, 1993 and March 31, 1996, where s.24(1) precluded the employee from recelvmg such compensatIon before the end of tIllS penod. I accept the umon' s constmctIOn of s. 24(8) for the followmg reasons On a hteral constructIOn, thIS subsectIon does what the umon says SectIon 24(8) addresses "mcreases m compensation m respect of employment during the period beginning June 1-1, 1993 and ending March 31, 1996" (emphasIs added) The focus IS upon compensatlOn for employment dunng the specIfied penod SectlOn 24(8) ensures there IS no retroactIve mcrease m compensatlOn for thIs penod. ThIS subsectIon does not address compensatlOn for employment after March 31, 1996 In other words, the legtslatIOn says notlung about an employee's vacatlOn entItlement flowmg from employment after this date ThIS mterpretatlOn IS also consIstent WIth the purpose of the Social Contract Act set out m paragraph 2 of s 1 To proVIde for expendIture reductIOn for a three-year penod and to proVIde cntena and mechamsms for achlevmg the reductIons (emphasIs added) -3- On the umon's readmg ofs 24(8), the legIslatIOn achIeves Its purpose by reducmg the costs assocIated wIth vacatIOns dunng the three-year penod endmg March 31, 1996 As the employer's mterpretatIon would reduce costs forever, not Just for three years, It IS not supported by the purpose of the legIslatIOn I note the mterpretatlOn adopted m thIS award conforms to the approach taken by ArbItrator Mltchmck m an mterest award, dated August 31, 1994 York RegIOn Board of Education and Ontario Secondary School Teachers' Federation Mr Mitchmck dIrected that as of May 1,1996 all teachers should be returned to the pOSItIOn on the salary gnd WhICh they would have occupIed but for the Social Contract Act I declme to follow the maJonty award m Kitchener Waterloo Regional Ambulance and CanadlGn Union of Public Employees, unreported award dated April 7, 1997 (Rayner) ArbItrator Rayner embraced a mIddle ground fallmg between the pOSItIOns outlmed above Accordmgly, we award that s 24(8) does not apply to those employees who dId not move from one pOSItIOn to another on the [vacatIon] gnd dunng the tIme penod m questIon [1 e June 13, 1993 to March 31, 1996] but does apply to those who dId. -4- The gnevance IS allowed and the employer IS directed to comply With the tenus of the coIlectIve agreement In respect of employment after March 31, 1996 PENSIONS AND PERCENTAGE IN LIEU FOR PART-TIMERS (GSB 2078/97) ThIS gnevance concerns the amount of the percentage m heu payment owmg to part- bme employees who JOIn the penSIOn plan The amount of thIs payment for these employees has been reduced by the amount of the employer's contributlOn to the penSIOn plan The unIOn clanTIs tIns reductIon contravenes the collectIve agreement ArtIcle 21 04 of the agreement, entItled "Payment m LieU of Benefits (Part- Time Employees Only) states A part-tIme employee shaIl receIve m heu of all fnnge benefits (bemg those benefits to an employee, paId m whole or part by the employer, as part of dIrect compensatIOn or othelWlse, mcludmg holiday pay, save and except salary, vacatIon pay, call back pay, reportmg pay, responsibihty allowance, Jury and WItness duty, bereavement pay, maternity supplement unemployment benefits) an amount equal to fourteen per cent (140/0) of hIs/her regular -5- stratght tune hourly rate for all straIght tune hours paId. The percentage m heu was reduced from 140/0 to 11 % by a letter of understandmg dated March 15, 1994 PensIons are the subject of artIcle 21 03, enhtled "PensIOn (Full-Tune Employees Only) All present employees enrolled m the employer's penSIOn plan shall mamtam theIr enrollment m the plan subject to Its tenns and condItIons New employees and employees not yet elIgible for enrollment m the plan shall, as a condItIon of employment, enroll m the plan when ehgible m accordance wIth Its tenns and condItIOns ArtIcle 21 03 contemplates that only full-tIme employees wIll Jom the penSIon plan. The percentage m heu payment under artIcle 21 04 IS prOVIded m the place of "all frmge benefits" While the penSIOn plan IS not speCIfically mentIOned, It obVIOusly IS a frmge benefit These artIcles leave httle doubt some part of the percentage ill heu was mtended to compensate part-tIme employees for bemg excluded from the penSIOn plan These artIcles appear to have been negotIated before the 1988 amendments to -6- the Pension Benefits Act requmng partIcIpatIOn m all pensIon plans be open to part- tIme employees who meet certam cntena of elIgibilIty TillS legIslatIon alters the premIse upon whIch the collectIve agreement was based Once part-tIme employees were allowed to enroll 10 the pensIOn plan, the employer could be expected to seek a reductIon 10 the percentage 10 heu for those employees who Jomed the plan. The questIOn posed by the gnevance IS whether the collectIve agreement allows the employer to unilaterally reduce payment by way of percentage 10 heu of benefits ThIs questIOn must be answered m the negatIve The amount of the percentage 10 heu payment IS fixed by a letter of understand10g between the partIes and can be altered only by agreement of the partIes Some collectIve agreements have been amended smce 1988 to proVlde a lesser percentage 10 heu for employees who enroll 10 a penSIOn plan than for those who do not The partIes to tIus agreement have not negotIated such an amendment Part-tIme employees who Jom the pensIOn plan are entItled to the full amount of the percentage 10 heu speCIfied In the collectIve agreement ThIS conclUSIOn IS conSIstent WIth the awards m two other cases dealmg WIth the same Issue City of Thunder Bay and Service Employees International Union, unreported award dated September 29, 1989 (Burkett) and Hawkesbury and Distrlct General Hospital and Canadwn Union of Public Employees, unreported award dated March 2, 1992 (R -7- Canadian UnIOn of Publtc Employees, unreported award dated March 2, 1992 (R Brown) The gnevance IS allowed ? /~ RIchard M. Brown, VIce ChaIr Ottawa, Ontano February 18, 1998 -8-