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HomeMy WebLinkAbout1981-0348.Hooey.83-01-17IN TIiE MATTER OF AN ARBITRATION TRE CROWN E!dPLOYEES COLLECTIVE BARGAINING ACT Before 2.. Te GRIEVANCE SETTLEMENT BOARD Between : OPSEU (Mrs. Jane M. Hooey) Before: For the Grievor: For the Employer: Grievor ,' - And - The Crown in Right of Ontario (Ministry of Health) Employer J.F.W. Weatherill P. Craven A. Reistetter Chairman Member Member G. Richards Grievance Officer Ontario Public Service Employees Union W. Gorchinsky, Chief Staff Relations Officer Civil Service Commission IIearing: Sovember 15, 1982 lc * ,-’ -2- DECISION In this grievance, dated April 24, 1981, the grievor protests the termination of long term income protection benefits. The employer raised the preliminary objection that the matter was not arbitrable, as it did not involve a complaint relating to the interpretation, application, administration or alleged contravention of the collective agreement. There was no dispute as to the facts:material to the objection, and following argument thereonL and after taking time for considera- tion, the board made the following ruling as to the procedure then to be followed: Where there is a substantial objection raierd to the BoarB's jurisdiction, and ubere a reasoned decision thereon is necessary, it is generally preferable that such decision be made before the proceedings continue. In the instant case, there is no agreement between the parties that the Board should proceed under reserve, receiving evidence and arguments on the merits without having determined that it has jurisdiction to consider them, and without such agreement we think it is best - again, as a general matter - not to force an unwilling party to proceed. In this case, the evidence the employer may seek to adduce would be obtain- able only through a third party, and it is reasonable that such evidence not be compelled until the jurisdiction of the Board to consider it has been determined. In the instant case, we consider that if it is determined that this Board has jurisdic- tion, and if the employer does intend to proceed with evidence obtained from the insurer, it shouid provide the union with copies of any documents received in that connection before any continuation of the hearing. -3- The matter was then adjourned. We now give our decision on the matter of the arbitrability of the grievance. The claim is for payment of long term income protection benefits. The collective agreement provides for certain "insured benefits plans" and, in particular, for the provision of insurance to provide "long term income protection". The material provisions of the collective agreement are the following: ARTICLE 41 - LONGTERM INCOME PROTECTION 41 .l The Employer ehall pay eighty-five percent (85%) of the monthly pre- mium of the-Long Term Income Protec- tion Plan. 41.2 (a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66-2/3%) of the employee's gross salary at the date of dis- ability, including any retroactive salary adjustment to which the employee is entitled, reduced by the total of other disability or retirement benefits payable under ' any other plan toward which the Employer makes a contribution except for Workmen's Compensation benefits paid for an unrelated disability and such benefits are payable until recovery, death or the end of the month in which the employee reaches age 65. -4- (b) (cl --- Long Term Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day-to-day basis after the six (6) month period. Total disability means the continuous inability as -the result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and there- after during the balance of the -benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he ie mimsonably fitted by education, training or experience. ARTICLE 44 - INSURED BENEFITS PLANS - GENERAL COMMENCEMENT OF COVENAGE 44.1 Employees will be insured for Basic Life, Supplementary and Dependent Life (when elected), Long Term Income Protection, and Supplementary Health and Hospital benefits effective the first of the month immediately following two (2) months continuous service. Monthly premiums for O.H.I.P. are paid by the Employer commencing with the month the employee is appointed to staff for coverage which starts three (3) months later. -5- 44.2 COVERAGE DURING LEAVE-OF-ABSENCE WITHOUT PAY Durting leaves-of-absence without pay, employees may continue participating in Basic Life, Supplementary Life, Dependent Life, Supplementary Health and Hospital, Long Term Income Pro- tection, O.H.I.P. and the Dental Plan by arranging to pay full premiums through their ministry personnel or payroll branch. DAYS OF GRACE 44.3 There is a thirty-one (31) day of grace period following termination during which the insurance remains in force for Basic, Supplementary and Dependent Life Insurance. AP.TICLE 45 - JOIBT IWSURANCE BENEFITS BEVIEW COMMITTEE 45.1 The parties agree to continue the Joint Insurance Benefits RevieW Committee. The terms of reference are set out in Appendix 6 attached. -6- The Joint Insurance Benefits Review Commitee's role is to "facilitate communications", and to make recommendation; with respect to insurance coverage. It cannot, however, affect the obligations:entered into from time to~time as between the parties and embodied in the collective agreement. I,t *is clear that among the employee benefits provided for-under the collective~agreement is to be a long term income protection plan. It is implicit in the collective agreenmn t that the employer is to arrange for such a plan, and its express obligation is to pay eighty-five per cent of the monthly premium therefor. It is acknowledged that the employer has arranged for such a policy of insurance, and that it has paid its share of the premium cost. There is no issue in this case as to the appropriateness of the policy provided, nor of its providing the benefits called for by the collective agreement. The essence of this grievance is that a claim under the policy has not been met or, more precisely, that the insurer has terminated the payment to the grievor of certain benefit payments. The employer's objection to the arbitrability of this matter is that the grievance involves a claim against the insurcir, and that it does not involve a claim of a violation of the collective agreement. In our view/the employer's objection is well- founded. The employer's obligation under the collective agreement is to arrange for a policy of long term income protection insurance meeting certain criteria, and to pay eighty-five per cent of the premiixathereof. Such a policy has been arranged and as we have noted it appears to provide the benefits which the collective agreement requires be provided 'in such a-policy. The employer has paid its share of tbe premiums for such insurance. That being the case, the employer has met its obligations. under the collective agreement in respect of this benefit. The benefit, that is, is insurance. The employer is not the insurer, and is not itself responsible for the provision of the benefits - although it might well be so responsible if, for example, it had failed to meetits obligations by not providing the insurance. ,' It was argued for the union that the collective agreement incorporates the policy of insurance, to -8- the extent at least of making claims for benefits under the policy claims which could be the subject of grievance. We are unable to accept this argu- w ment. Certainly the collective agreement refers to "the Long Term Income Protection Plan". It contemplates the existence of such a plan, it implicitly requires fhe'employer to provide or to continue to provide such a plan, and it expressly requires payment of a portion of the premiums. It is natural-that there be reference to the insurance with respect to which such obligations arise. That does not mean, however, that such reference "incor- porates" the plan in the collective agreement, in the sense that it skaehow makes the provisions of the policy itself terms of the collecti,ve agreement and obligations of the employer. The collective agreement requires that a policy of insurance be provided. It is not itself a policy of insurance. In the instant case the employer has provided an appropriate policy of insurance. . The grievor's claim for payment of benefits under that policy is not a claim arising under the collective agreement, but is rather one under the policy. It is the insurer's obligation to pay proper claims, and that obligation will be enforceable at law. It is -9- not the employer's obligation to meet claims for benefits where it has, as the collective agreement requires, provided -insurance to cover such claims. Disputes, such as that in the instant case, relating to claims for benefits under the policy are not matters relating to the interpretation, application, administration or alleged contravention of the collective agreement itself, and are not arbitrable. _'- For the foregoing reasons the preliminary objection is stistained and the grievance must be dismissed. DATED AT TDROWTD, thisI'M dry of January, 1983. ' J.F.W. Weatherill Chairman "I dissent" (see attached) P. Craven Member A. Reistetter Member 3:2100 4:1400 4:zooo - DISSENT Article 41 of the Coiiective Agreement contains two sort5 oc ;wcvi si 01-1s. Article 4;. I provides for tF;e pa;mentl b:,~ the en- pl oyer cf its share of the premiums due Ic the Insc.rer. The rema: nder of the artic?e, 41.2.tht-cuqh 4:.lQ, estab1 i shes 5.i.c terms of the beneii+ -- This is n-t a case wherein the co?lective agreement merely obl isates the ernpioyer to contract for and pay a share oi an insurance pian. The parties have negotiated and set out in the collect&e agceetnent what benefits are to be paid to whi =h employees under what circumstances. Moreover t they have explicitly provided in Appendi:: 6 that, ” ._. the Grcup insurance benefits to br provided to rlpplo ysrs and the cost sharing arrangement between the Employer and its employees shall be as set out in any applicable collective agreement . . . ” <my empha- sis. 1 Thus the parties have determined that the explicit ahli- get i on5 of the collective agreement include not only the payment of ‘premiums, but the specific benefits as well. It is not &levant to the question of jurisdiction whether c:r not the policy is incorporated into the colIective agreement, for the griever is seeking to enforce not the terms of the poiicy but the terms of the collective agreement itself. This co1 1 ec- tive agreement clearly goes beyond simply requiring the payment of premiums: to determine otherwise is to nullify the provisions cf Articles 41.2 through 41.10 and Appendix 6. The parties have incorporated a set of terms and conditions tinder which a benefit is to be paid into the body of the agreement. It is of secondary relevance to the union whether that benefit is paid by the em- ployer or by the insurer. Indeed, were it necessary in adjudi- cating the dispute to choose between the words of the collective .agreement and the words of the insurance policy, it would surely be incclmhent upon the board of arbitration to give effect to the language of the collective agreement. This may be clari+ied by an example. I note that the deii - nition of "Total disability" in article 41.2c is not in ai? respects identica1 to the definition of "Totally disabled” at page 2 of the insurance pal ic>y. It could occur, therefore. that an emplo:.:ee who fits the definition in the cciiectiLe agreene. t might not fit the definition in the insurance po!ic:/. and ,aou! c accordingly be denied the benefit by the insurer. I3v the terms of its contract. the insurer would not be at iault. The emp! cl’er