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HomeMy WebLinkAbout1976-0074.Cupe.77-10-2774/76 CROWN EKPLOYEES 416/964 6426 GRIEVANCE SETTLEMENT GOARD Suite 005 77 Bloor Street Vest TORONTO, Gntario ;45s 1M2 IN THE MATTER OF AN ARB~ITRATION Under The ~. -. ~~ -~~ CROWN EMPLOYEES COL:ECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Housing Corporation Employees Union Local 767 CUPE And Ontario Housing Corporation Before: K. P. Swan Vice-Chairman E. J. Orsini Member D. Anderson Memb.er For the Grievor: Mr. P. J. O'Keefe Assistant Regional Director Canadian Union of Public Employees For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Suite 200 85 Richmond St. W., Toronto, Ontario Hearing: September 30th, lg77 Suite 405, 77 Bloor St. W. Toronto, Ontario 2. This grievance poses two questions about the correct interpretation of the vacation provisions of the agreement which was in effect at the time at which.the grievance was filed, namely the agreement effective from January 1, 1975 to December 31, 1975, which continued in effect beyond the latter date by virtue of s. 21(2) of the crown employees collective Bargaining Act. Those questions are: ',. 1. Does the expression "total e&nings for the vacation year,"upon which- vacation pay is --.". calculated, include, any vacation pay received during that year? i 2. IWes an employee have to receive his vacation pay at the time of taking vacation leave, or may the pay be claimed as soon as it accrues? The collective agreement provisions from which these questions arise are as follows: ARTICLE 17 - VACATIONS 17.01 For the purpose of calculating vacation leave and vacation pay service years will be computed from July 1 in each year to June 30 of the following year inclusive. 17.02 Vacation and vacation pay will accrue on the following basis: i) for less than one year of continuous service as of June 30ti.01~ day of vacation leave for each full completed calendar month of servi’ce up to a maximum of ten (10) days and the employee shall be entitled to receive as vacation pay an amount equal to four percent (4%) of his total earnings for the vacation year. ii) for one (1) year but less than two (2) years of continuous service~.as of June 30th, ten (10) days of vacation leave and four iii) iv) 3. percent (4%) of his total earnings for the vacation year. for two (2) years but less than fifteen (15) years of continuous service as of June 30th fifteen (15) days of vacation leave and six percent (6%) of his total earnings for the vacation year. for fifteen (15) or nvre.yea?s'of continuous service as of June 30th twenty (20) days of vacation leave and eight percent (8%) of his total earnings for the vacation year. v) :; \ 17.03 Vacation leave and vacation pay as accrued in accordance In the administration and imple&ntation of -.~ the provisions of this, article, no employee shall receive less va&tion leave or entitlement that-he would receive~if the- provisions of the collective agreement which expires on December 31, 1974 were in effect. with Section 02 above must be taken within ten (10) calendar months after the end of the vacation year in which the vacation was accrued unless the Employer and the employee mutually agree to extend the period during which vacation may be taken. In any event, vacation leave and vacation pay must be taken before the end of the second vacation year immediately after the vacation has accrued. Vacations~.will normally be taken in an unbroken period. ARTICLE 21 - PAYMENT OF WAGES 21.01 Wages one week in'arreai-s shall be paid on a two-weekly basis. Where the regular pay day falls on a designated holiday the employees shall be paid on the day preceding the holiday. An employee will be provided each pay day with an itemized statement of wages and deductions therefrom. 21.02 VACATION PAY Employees may, upon giving at least ten (10) working days notice, receive on the last office day preceding commence- ment of their annual vacation any~cheques which may fall due during the period of their vacation. 4. 21.03 PAY DURING TEMPORARY ASSIGNMENT When an employee is required to perform the duties of any higher position than that previously occupied by such employee for a period in excess of fifteen .(lS) gnutes in one (1) day, the corresponding rate of pay for such higher position shall be paid for the who& period during which time duties at the higher level were performed. If +n,employee is required to substitute for an employee is receiving a lower rate of pay than the substituting employee, then the pay of such substitute shall not be changed .~ provided that the substitution is of'.not nore than three (3) wee.& duration. ~, i; \ -., ? .'.. The first issue is one which has arisen in a number of arbitration decisions in the private sector, and there is thus some jurisprudence available on the subject. The union submitted, and we agree, that this jurisprudence indicates a growing trend towards an interpretation of such expressions as "total earnings" which would find them clear and unambiguous, and which would include within their scope any vacation pay received during the period over which earnings are calculated. The rationale.for this approach is perhaps best stated in the award in me Pilkington BOOS. (Canada) Ltd. (1966)‘ 17 L.A.C. 146 (Arthurs), at page 1jO: What the union obtains in.the area of vacation pay is usually "purchased" by the sacrifice of some other monetary demand, such as an additional statutory holiday, a fringe benefit, or wages. All of these - - - are "earned"; together they represek the total compensation which an employee expects to receive, and the employer expects to pay, as the labour cost of production. Therefore, fromthis reasoning (which we respectfully adopt), the word "earnings" would normally include vacation pay received during the period over which earnings dare calculated; the expression'kotal earnings' 6. vacation year" must relate to the time at which some right accrues to an employee rather than the time at which the "earnings" are actually received. In fact, the accrual apparently depends entirely upon completion of the vacation year, that is, it occurs at the completion of work on June 30th. Given tha~t, it is:% considerable extension of the meaning of the word "earnings for the.vacation year" to,:~.say that vacation pay must necessarily refer to the-twelve month period before >: \. -~~ the accrual rather than to the twelve month period after the accrual ; -: during which the money was actually rec~eived. We are therefore of the view that the union's position is correct, and that vacation pay should be calculated on all sums received as earnings in the vacation year on which the pay is based. As to the second question, the union's argument is that, because the words "vacation leave and vacation pay" set out leave and pay as two separate items, employees ought to be able to take the two aspects of vacation separately. They ought, for example, to be able to claim vacation pay forthwith as of each July 1, while re- serving vacation leave until some later suitable time. We are convinced by the employer's arguments on this matter, and consider that on an ordinary reading of.the expression "vacation leave and vacation pay" the clear meaning is that they should be concurrent. The adjective "vacation".would hardly be appropriate to define pay if it were merely a service bonus accruing each year. In using the words together, we are satisfied that the parties intended the two benefits to be taken together. In this result we are supported 5. would, a fortiori, also include such amounts. There are, however, certain cases which identify language which can create exceptions to this general principle, and it is the employer's position that the present._c_ase is also an exception. Mr. Tarasuk advanced a number of foundations on which, he submitted, we could base such a conclusion. First, the expression set out in-Article 17.02 is "total -b -~earnings~for the-vacation @' -- ,. ind then vacation year, defined as a period "from July 1 in each year to June.30 in the following year inclusive" in Article 17.02 must clearly have ended (see Article 17.03)before the vacation may be taken. Thus vacation taken (and vacation pay received)during one vacation year, as defined, will always have been earned in the previous vacation year rather than in the year in which it was actually taken, and ought not therefore to be considered to be earnings "for the vacation year". As authority for the proposition that.vacation vests (and is thus fully "earned") at the end of the qualifying period, Re Falconbridge Nickel Mines Ltd.(1973), 3 L.A.C. (2d) 409 (Weatherill) was cited. The second - and third arguments,, based on the interpretation of the word "earnings" and on inferences to be drawn from the calculation of vacation pay based on years of service, appear to us to be much less tenable than the submission set out above. Although we consider it to be a borderline case, we are unable to accept the employer's position that "earnings for the 7. by the award in Re Northern Electric Co. Ltd. (1975), 8 L.A.C. (2d) 385 (Palmer). In the result, therefore, the grievance is allowed as to the first question and denied as to the second. The union i,ndicated that some consequent relief would flow to individuals from an affirmative answer to.t.he-first question. Ne are *i\ ,. informed that the parties can settle thisLj<sue and we therefore leave. -~- .it to them for calculation, retaining jurisdiction only to the extent that may be necessary to resolve any issue as to compensation. Dated at Toronto this 27th day of October 1977. K. P. Swan Vice-Chairman E. J. Orsini Member I conc".r D. Anderson Member