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Home My WebLink About2019-1594.Mills et al.21-06-08 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2019-1594; 2019-2155 UNION# 2019-0234-0215; 2019-0999-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mills et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING May 6, 2021 -2- DECISION Introduction [1] This decision resolves a difference between the parties, raised in a policy grievance filed by the Union, as to whether the term “regular salary” in Article 41.3 of the Collective Agreement includes the Across the Board (ATB) salary increases and Special Adjustments in an interest arbitration award by Arbitrator William Kaplan dated April 1, 2019. Evidence [2] The parties presented an Agreed Statement of Facts and Joint Book of Documents prior to the hearing on May 6, 2021. At the hearing, additional documents were admitted into evidence and additional facts were stipulated on consent. I will briefly summarize the relevant facts, which are not in dispute. [3] Where a bargaining unit member will be absent from work by reason of an occupational injury or disease for which an award is made under the Workplace Safety and Health Insurance Act (WSIA) for a period greater than three consecutive months, or 65 working days where absences are intermittent, the Employer sends an election letter and election form to the employee. The letter explains two options with respect to receipt of income after the period in question elapses. The form records the employee’s choice between the two options. [4] The letter and form received by Mr. Doug Mills were presented in evidence. The Parties agreed that these documents are standard form and typical of those received by other bargaining unit members. The two options offered to the employee on these documents are: (1) to continue to receive regular salary while drawing down on accumulated time credits, pursuant to Article 41.3 of the Collective Agreement; or (2) to receive only benefits paid by the Workplace Safety and Insurance Board, pursuant to the award made under the WSIA. The letter states that under the first option “you will remain on active payroll and receive your regular pay, part of which is considered WSIB benefit of 85% of your net pay.” The letter then adds that “You will be required to “top up” the WSIB benefit portion using your accumulated credits at a rate of 0.321 per day.” It then explains that if the employee’s absence continues beyond the date when accumulated credits expire, the employee will be removed from active payroll. It notes however that when the employee qualifies for new credits on January 1 of the following year, the employee will be returned to active payroll. The form allows the employee to choose the order in which various types of accumulated time credit will be used up under Option 1, or to exclude particular types of credit from being drawn down. The sources of time credit include overtime, vacation, and travel time, among others. [5] The parties presented the following agreed facts regarding the bargaining history for the 2018-2021 Corrections Collective Agreement: -3- 1. For the 2018 – 2021 round of bargaining, the Parties agreed that the corrections bargaining unit would no longer be captured under the Central Agreement. Instead, the corrections bargaining unit would bargain a stand‐alone Corrections Collective Agreement. 2. The Parties were able to resolve all issues except for a number of outstanding issues which were referred to Arbitrator Kaplan in an interest arbitration. 3. Arbitrator Kaplan rendered his award on the outstanding issues on April 1, 2019. He found the following: Wage/ATB – all employees January 1, 2018: 1.5% January 1, 2019: 1% July 1, 2019: 1% January 1, 2020: 1% July 1, 2020: 1% January 1, 2021: 1% July 1, 2021: 1% Special Adjustment – Correction Officers/Youth Workers Classifications January 1, 2018: 1.75% January 1, 2019: 1.75% January 1, 2020: 1.75% January 1, 2021: 1.75% 4. The above‐noted across the board increases for the correctional bargaining unit are set out at Article COR 17 of the collective agreement. 5. The above‐noted special wage adjustments for the correctional bargaining unit are set out at Appendix COR 39 of the collective agreement. Arguments Union Arguments [6] The Union submits that in Article 41.3 the term “regular salary” must include wage adjustments made to the salary scale following the date of an award under the WSIA. The Union directs attention to the following features of the Collective Agreement. -4- [7] First, the Union points to Article 41.6 which, effective January 1, 2016, capped the amount of benefits payable under Article 41.2 so that an employee’s net earnings would equal no more than 100% of their net earnings prior to the commencement of their absence by reason of injury or illness for which a WSIA award is made. The Union notes that this cap applies only to article 41.2 benefits, that the parties are sophisticated, and that had they intended to similarly cap Article 41.3 benefits they could have included them within the scope of the Article 41.6 cap. The Union says that Article 41.3 has been in the collective agreement since 1989, and that the only way to give meaning to the parties’ decision to limit Article 41.2 benefits but not Article 41.3 benefits through the operation of Article 41.6 is to treat the regular salary and accumulated credits referred to in Article 41.3 as including salary increases negotiated at the bargaining table or provided through interest arbitration awards, such as the Kaplan award. [8] Second, the Union notes that the parties used the term “regular salary” in Article 41.3, a term which it submits includes wage adjustments. The Union maintains that the parties could have used the term “benefit” or similar language if they had intended to provide for an income replacement benefit the value of which was fixed at a point in time. [9] Third, the Union directs attention to Article 42, which provides long term income protection as a fixed percentage of gross salary at the time of disability, and then provides for negotiated increases to benefits taking effect at subsequent times. The Union submits that had the parties intended the amounts provided under Article 43.1 to be fixed at a point in time, they would have used language similar to that of Article 42 to tie the value of the benefit to a particular point in time. The Union also contends that the parties would have negotiated for specific increases from time to time, as they did with respect to Long Term Income Protection (LTIP) benefits under Article 42. [10] Fourth, the Union points out that an employee’s decision to opt for benefits under Article 41.3 lasts for the life of a claim, which in some cases can be many years. It would not make sense, in the Union’s submission, for the value of the benefit to be eroded over that period by failing to include salary increases. The Union submits, pointing to Article 42, that the parties know what they are doing when they are bargaining and have consistently made agreements which see employees receiving increases in the value of benefits. [11] The Union concludes that “regular salary” in Article 41.3 can only mean the salary that flows along the Collective Agreement and includes regular increases. Employer arguments [12] The Employer’s position is that Article 41.3 provides employees with an ability to use any existing accumulated credits to top up their salary at a point in time, based on the salary that they were earning when they go on WSIB benefits. -5- [13] The Employer maintains that to confer a monetary benefit the Collective Agreement must use clear and unequivocal language: Ontario Public Service Employees’ Union (Union grievance) and the Crown in Right of Ontario (Ministry of Government Services), February 8, 2012, GSB# 2010-0405 (Abramsky). It submits that the language of Article 41.3 is not clear in that it does not expressly provide for negotiated increases to be factored into the amounts payable. The Employer points to other language in the Collective Agreement, in Articles 50.3.2 and 51.5.2, that expressly ensures that employees do get negotiated increases including progression on the wage grid. The Employer says that the parties know how to use this kind of language when they intend to include the value of wage increases in the value of benefit payments. [14] The Employer submits that Article 41.2 benefits are payable only for a short period of time, and are therefore not relevant beyond the first few months of an employee’s leave due to occupational injury or disease. It is unlikely that there would be a significant increase in salary during that short period of time. The impact of Article 41.6 is therefore, in the Employer’s submission, not on salary increases but rather on net salary, ensuring that the value of payments does not exceed 100 per cent the net salary that the employee is receiving at the time. Therefore, the Employer contends, the fact that Article 41.6 does not refer to Article 41.3 does not indicate anything about the meaning of “regular salary” in Article 41.3. [15] The Employer argues that Article 41 should be interpreted in the context of the WSIA, and that under the WSIA the calculation of benefits is clearly tied to a point in time. The Employer concludes that in this context the regular salary referenced in Article 41.3 should be understood to refer to a point in time as well, given that it does not specifically provide for an increase. Union Reply [16] The Union responds that Articles 50 and 51 does not speak to salary, but rather to payments that are equivalent to a certain percentage of salary. The Union says that a “payment” is not the same thing as a salary. The Union submits that fact that the parties negotiated wage increases for those payments does not mean that this is clear and explicit language that is absent in Article 41.3. The Union maintains that article 50 and 51 payments are different from Article 41.3 payments. The latter are a salary, and the former are payments while on leave. [17] The Union submits further that the WSIA scheme is not relevant. It maintains that in Article 41 the parties have negotiated an additional benefit on top of WSIA benefits, one that improves the benefits available to employees. There is no implication, the Union argues, that the parties adopted the principles of how compensation should be calculated under the WSIA. In any event, the Union adds, if there were any relationship to the calculation of WSIA benefits, it would apply only to benefits under Article 41.2 because the parties stipulated net benefits in Article 41.6 and chose not to do this for Article 41.3. -6- Decision [18] Having carefully considered the arguments of the parties, I have concluded that the grievance must be allowed. [19] Article 41.3 provides that: Where an award is made under the Workplace Safety and Insurance Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in Article 41.2 and the employee has accumulated credits, their regular salary may be paid and the difference between the regular salary paid after the period set out in Article 41.2 and the compensation awarded shall be converted to its equivalent time and deducted from their accumulated credits. Article 35.1 labels the provisions of Part 1B of the Collective Agreement, in which Article 41.3 is found, “Employee Benefits for Full Time Regular Employees”. The benefit provided by Article 41.3 might be described as the continuation of payment of regular salary by topping up amounts that would have been paid as WSIA benefits using the employee’s accumulated credits. [20] The only issue before me is whether “regular salary” in Article 43.1 includes the ATB increases and Special Adjustments provided under the Kaplan award. The ATB increases are reflected in Article COR 17.1 of the Collective Agreement, which reads as follows: All salary rates to be increased across the board as follows: January 1, 2018 – 1.5% January 1, 2019 – 1% July 1, 2019 – 1% January 1, 2020 – 1% July 1, 2020 – 1% January 1, 2021 – 1% July 1, 2021 – 1% The salary rates in effect are contained in the Salary Schedule attached. The Special Adjustments are reflected in Appendix COR 39, which provides that: Special adjustments shall be as follows: The following are special wage adjustments. These increases will be applied to existing rates following any across the board increases, and a special wage adjustment on the same date will be compounded on the across the board increase… -7- Appendix COR 39 then goes on to list in detail the Special Adjustments to be made to the salary rates of different groups of employees. [21] The Salary Schedule attached to the Collective Agreement and referenced in Article COR 17 sets out salary rates applicable to each classification of employee in the bargaining unit. Like that of most collective agreements, it provides that employee salary rates will change by specific amounts at specific times over the duration of the Agreement. In this context, the ordinary meaning of the “regular salary” of an employee would be the salary rate associated at a given time with the employee’s classification and position on the salary grid set out in the Salary Schedule. On this ordinary meaning, since Article COR 17 and Appendix COR 39 increase rates in the Salary Schedule, those increases would also be reflected in the regular salary of employees for the purposes of Article 41.3. The parties’ evident intent is that salary rates will generally change over the course of the Agreement in accordance with the Salary Schedule, Article COR 17 and Appendix COR 39. [22] I can see no basis in the Agreement’s express terms for departing from this general intent by fixing indefinitely the value of an employee’s regular salary for the purposes of Article 41.3, whether at the date of an award under the WSIA or at any other point in time. There is no language in or applying to Article 41.3 that does so, directly or indirectly. By contrast, where the parties have chosen to fix or ascertain at a particular point in time the value of “gross salary” (in Article 42), “weekly rate of pay” (in Articles 50 and 51) or “net earnings” (in Article 41.6) for the purposes of calculating the value of a benefit, they have used specific Agreement terms to do so. (See the Collective Agreement excerpts annexed to this decision.) I also note that in Articles 42, 50 and 51 the parties have then provided for adjustments to the fixed salary or rate of pay amount, indicating that they turn their minds to the consequences of fixing such amounts for more than brief periods. In this context, I do not think that the silence of Article 43.1 both with respect to fixing “regular salary” at a point in time and with respect to subsequent adjustments reflects an intent that it should stay the same indefinitely for the purposes of determining payments under Article 43.1. Rather, it confirms an intent that the term “regular salary” should carry its ordinary meaning, discussed above. [23] The Employer submits that Article 41.3 should be interpreted in light of the approach to benefits adopted in the WSIA, under which benefits are calculated as a percentage of salary at a particular point in time. However, as the Union points out, the intent of the parties in Article 41.3 was to supplement WSIA benefits, and the parties were free to do so as they saw fit. There is nothing about supplementing WSIA benefits that requires that the method of benefit determination used in the Act be mirrored in the Collective Agreement. In any event, the Employer’s appeal to the WSIA context is somewhat selective. Unlike WSIA benefits, which increase in line with a price index, the construction proposed by the Employer would leave Article 41.3 benefits fixed for potentially long periods of time, and thus exposed to erosion by inflation. On the whole, I -8- find the context of the WSIA’s scheme for determining the value of benefits to be of little assistance in understanding the meaning of the term “regular salary” in Article 41.3. [24] I therefore conclude that the term “regular salary” in Article 41.3 includes the wage adjustments made by the ATB increases in Article COR 17.1 and the Special Adjustments in Appendix COR 39. Disposition [25] The grievance is allowed. I remain seized with respect to the implementation of this award. Dated at Toronto, Ontario this 8th day of June, 2021. “Kevin Banks” ______________________ Kevin Banks, Arbitrator -9- Annex Collective Agreement Excerpts 41.6 Effective January 1, 2016, salary payments under Article 41.2 shall be reduced to the extent necessary to provide that an employee’s net earnings equals one hundred percent (100%) of their net earnings prior to the commencement of their absence. 42.2.1 (a) Effective January 1, 1992 and until December 31, 2009, the L.T.I.P benefit is sixty-six and two-thirds percent (66 2/3%) of an employee’s gross salary at the date of disability, including any retroactive salary adjustment to which the employee is entitled. Effective January 1, 2010, the L.T.I.P. benefit is sixty-six and two thirds percent (66 2/3%) of the employee’s gross salary at the first date of eligibility to receive L.T.I.P. benefits, including any retroactive salary adjustment to which the employee is entitled. [Article 42 then goes on to list a series of negotiated adjustments to the LTIP benefit.] 50.3.2 In respect of the period of pregnancy leave, payments made according to the Supplementary Unemployment Benefit Plan will consist of the following: (a) for the first two (2) weeks, payments equivalent to ninety-three percent (93%) of the actual weekly rate of pay for their classification, which the employee was receiving on the last day worked prior to the commencement of the pregnancy leave, but which shall also include their progression on the wage grid and any negotiated or amended wage rates for their classification as they are implemented, and (b) up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the sum of the weekly EI benefits the employee is eligible to receive and any other earnings received by the employee, and ninety-three percent (93%) of the actual weekly rate of pay for their classification, which they were receiving on the last day worked prior to the commencement of the pregnancy leave, but which shall also include their progression on the wage grid and any negotiated or amended wage rates for their classification as they are implemented. 51.5.2 -10- In respect of the period of parental leave, payments made according to the Supplementary Unemployment Benefit Plan will consist of the following: (a) where an employee elects to serve the two (2) week waiting period under the Employment Insurance Act, (Canada) before receiving benefits under that Act, for the first two (2) weeks, payments equivalent to ninety-three percent (93%) of the actual weekly rate of pay for their classification, which they were receiving on the last day worked prior to the commencement of the leave, which shall also include their progression on the wage grid and any negotiated or amended wage rates for their classification as they are implemented. (b) up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the sum of the weekly EI benefits the employee is eligible to receive and any other earnings received by the employee, and ninety-three percent (93%) of the actual weekly rate of pay for their classification, which they were receiving on the last day worked prior to the commencement of the leave, which shall also include their progression on the wage grid and any negotiated or amended wage rates for their classification as they are implemented. [Emphases added]