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HomeMy WebLinkAbout1983-0345.Oldnall.84-02-27IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Griever: For the Employer: Hearing: November 18, 1983 OPSEU (Donna Oldnall) Griever - and - The Crown in Right of Ontario (Ministry of Revenue) Employer E.J. Jolliffe, Q.C. T.J. Kearney H. Roberts R. Anand, Counsel Laskin, Jack and Harris Barristers & Solicitors Vice-Chairman Member Member R.M. Gordon L&our Relations Advisor Personnel Services Branch Ministry of Revenue .S~ .,c: -2- Dire C I S I 0 N The issue in this unusual, perhaps unique, case is whether the grievor,.Ms. Donna Oldnall, was entitled to vacation credits in respect of all or only part of the period during which she was absent on maternity leave in the summer of 1982. The parties presented to the Board an agreed "State- ment of Facts," Exhibit 4, which will be quoted hereafter. Before doing so, however, it may be well to draw attention to the difference between Article 49, Exhibit 1 in Part B (Employee Benefits) of the collective agreement between the parties (signed on July 28, 1980) and the amended Article 49, Exhibit 2, in Part B (Employee Benefits) of the next collective agreement between the parties. The latter is stated on the cover page to be for the period from January 1, 1982, to December 31, 1983, but it was signed on December 17, 1982, and,it contains in Article 57 (Term of Agreement) the following important provision: 57.1 This Agreement covers the period from January 1, 1982 until December 31, 1983. The effective date of any changes to the terms of this Agreement from the previous Agreement, unless otherwise indicated, shall be July 28, 1982. The Agreement shall continue automatically thereafter for annual periods of one (1) year each unless either party notifies the other in writing that it wishes to amend this Agreement, in accordance with section 22 of The Crown Employees Collective Bargaining Act, Revised Statutes of Ontario, 1980, Chapter 108. - 3 - It is now necessary to examine the language of Article 49 'as it was in ef,fect (pursuant to the provision quoted above) until July 27, 1982. It was then as follows: ARTICLE 49 - MATERNITY LEAVE 49.1 A Deputy Minister shall grant leave-of-absence without pay and without accumulation of credits for the purpose of childbirth to a female employee who has served more than one (1) year including service as a Crown employee immediately prior to her appointment to the civil service. 49.2 The leave-of-absence shall be in accordance with the provisions of The Employment Standards Act. 49.3 A female employee returning from a leave-of-absence under section 49.1 to the ministry in which she was employed immediately prior to such leave shall be assigned to her former classification and be paid at the step in the salary range that she had attained when the leave-of-absence was granted. The new language of Article 49 agreed upon in 1982 --- and made effective July 28, 1982 --- omitting three irrel- evant clauses --- is as follows: 49.1 A Deputy Minister shall grant leave-of-absence without pay and without accumulation of credits for the purpose of childbirth to.a female employee who has served more than one (1) year including service as a Crown employee immediately prior to her appointment to the civil service. 49.2 The leave-of-absence shall be in accordance with the provisions of The Employment Standards Act. 49.3.1 An employee entitled to maternity leave under this Article, who provides the Employer with proof that she has applied for and is eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment Insurance Act, 1971, shall be paid an allowance in accordance with the Supplementary Unemployment Benefit Plan. -4- 49.3.2 In respect of the period of maternity 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 her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave, and (b) up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the sum of the weekly UIC 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 her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave. . . . . . 49.4 Notwithstanding Article 44~2 (Insured Benefits Plans - General), an employee receiving the maternity leave allowance under the Supplementary Unemployment Benefit Plan shall have her benefits coverage continued during the period she receives the maternity leave allowance. . . . . . 49.6.1 A female employee returning from a leave-of-absence under section 49.1 or 49.5 to the ministry in which she was employed immediately prior to such leave shall be assigned to her former classification and be paid at the step in the salary range that she had attained when the leave-of-absence was granted. The significant changes in Article 49, are of course embodied in 49.3.1, 49.3.2 and 49.4 above. As provided in Article 57 (quoted earlier) these changes became effective on July 28, 1982. That date happened to fall almost midway in the griever's period of maternity leave, which commenced on June 10, 1982, and ended with her return to work on October 4. -5- The facts agreed to by the parties were stated as follows, Exhibit 4: 2. 3. 4. 5. 6. 7. a. 9. 10. 11. 12. This grievance involves an interpretation of the working conditions and employee benefits agreement and is properly before the Grievance Settlement Board. Mrs. Oldnall commenced employment with the Ministry of Re- venue on December 17, 1979, as a Clerk Typist 2. Mrs. Oldnall was promoted to her present Clerk 3, General level on April 4, 1981. Mrs. Oldnall was on Maternity Leave in accordance with Article 49 from June 10, 1982, to October 3, 1982, and returned to work October 4, 1982. Her original maternity leave was scheduled for the period July 5, 1982, to Octob,er 29, 1982, but was amended due to the birth of her child on June'lO, 1982. Her claim for U.I.C. maternity benefit was established effective June 13, 1982. After serving a two-week waiting period, she received 14 weeks of maternity benefit at a gross weekly rate of $169.00. She received payments according to the Supplementary Unemploy- ment Benefit Plan effective from July 28, 1982, to October 2, 1982, at a rate of $113.53 per week. These payments commenced that date as it was the effective date of a new agreement between the parties. During her maternity leave, unemployment insurance premiums (normally 1.65 per cent of gross earnings) were not deducted. Her weekly rate of pay on the last day worked prior to the commencement of maternity leave was $303.80. She received vacation credits for the months of June and October, 1982, at a rate of 1% days per month. She did not receive vacation credits for July, August and September 1982. The Ministry's position regarding maternity leaves of absence is set out in the annexed document, which was provided to the griever during the grievance procedure. Attached to the statement (as.mentioned in paragraph 12 above) is a recital of "the. Ministry's position regarding maternity leaves of absence" which, however, is not a position agreed to by the Union. It will be noted that in this document, most of which is quoted below, many references' to "benefits" appear, but the sole mention of vacation credits is in the following words: "vacation credits do not accumulate for any full calendar month that you are absent on leave without pay." The Ministry's position in full, as conveyed to the griever (during the grievance procedure) is as follows, Exhibit 5: Tbs following information will beof assistance to you in planning for your maternity leave and your eventual return to work. The previous Maternity Leave benefit of 17 weeks leave with- out pay is still in effect. However, as a result of changes to the Working Conditions ,and Benefits Agreement, the Mater- nity Leave article has been amended to include the provisions of a Supplementary UnemplOyment Benefit Allowance. In order to qualify for the maternity SUB allowance, you must ba eligible, apply for and receive Unemployment Insurance maternity benefits. Please, therefore, forward all of your U. I. cheque stubs, which you will receive from the Unemployment Insurance Commission, to the undersigned aa proof of your eligibility. The SUB allowance is paid in accordance with the following schedule: a) coinciding with your two week waiting period for U.I. maternity benefits, you will be entitled to.an amount equal to 93% of pay at the rate you actually received on your last day at work AND . each additional week you continue to receive U.I. maternity benefits, to a maximum of 15 weeks, you will be entitled to an amount equal to the difference between,93% of pay (as cal- culated in (a) above) and the total of your U.I. weekly maternity benefit plus any other income you may earn. b) During the period when you are receiving your maternity S&I allowance, the following,insured benefit coverage, i.e. OHIP, Supplementary Health, and Hospital, Dental Plan, Basic Life Insurance and Long Term Income Protection, will be maintained. Hence, deductions are made and premiums paid on yourbehalf as though you were receiving full pay. With respect to Supplementary Life Insurance and Dependent Life Insurance, you may opt out of these coverages during this period, with the benefits being reinstated effective the first of the,calendar month coinciding with or following your return to work. Also, you have the option to continue to have made from your mater- nity SUB allowance any personal deductions, e.g. credit union assignments, parking, charitable donations, etc. that had been made in the past. For this period of leave, you have the option to continue your contributions to the pension plan (Public Service Superannuation Fund) if you so wish. This option may be exercised as follows: a) elect to pay through your SUB allowance b) elect to contribute and pay within six months after your Maternity Leave expires NOTE Should you select either a) or b) listed above, the amount of your pension contribution will be equal to the amount which would have been con- tributed if the leave had not been taken. cl elect to contribute at any later date, however the amount of your pension contri- butionwill be based on your salary at the time of election d) decline the option to contribute, thus resulting in your pension credit date being adjusted by the period of your absence YOU should also be aware that: al b) cl d) %) f) vacation credits do.not accumulate for any full calendar month that you are absent on leave without pay maternity leave in excess of 60 consecutive calendar days defers your anniversary date, if applicable, for merit increment purposes by the total period of absence income tax a CPP deductions will be made based on the actual.amount of your maternity SUB allowance no UIC deductions will be made from the allowance union dues are not deducted from the allowance - in addition to maternity leave, you are entitled to a further leave of, absence without pay and without benefits, of up to six (6) months (such leave must be requested in writing, at least two weeks prior to then expiry of your maternity leave) YOU are requested to please complete the enclosed "Benefit Continuance Election" form and return it promptly to the undersigned before YOU commence your maternity leave. If you have any questions on the above or wish to discuss any aspect of your maternity leave, please do not hesitate to' contact me. Annexed to the above was the "Benefit Continuance Election" form required to be completed.by the employee. For the purposes of this case these documents --- Exhibit 5 and the -9- election form --- have a very limited significance, if any, because they were given to the griever during the grievance procedure. They were not yet appropriate on June 10, when her maternity leave commenced. Nevertheless, they reflect correctly the Ministry's interpretation of the amendments in Article 49, which came into force on July 28. The election form states: While on Maternity Leave of Absence without pay, normal insured benefit coverage is maintained while you are in receipt of maternity SUB allowance. Hence deductions are made and premiums paid on your behalf as though you were receiving full pay. The form then sets out five benefits for which the employee was registered! noting that in respect of the Long Term Income Protection Plan and the Supplementary Health & HOS- pita1 Plan "deductions will be made as though you were receiving full pay." The form also listed several benefits which were optional and required an election by the employee "within the first two weeks of your maternity leave." The election form makes no reference whatever .to vacation credits. Had she been at work throughout the period of her maternity leave, there is no doubt vacation credits (she being in her first 10 years of service) would have accrued at ;3 & - 10 - the rate of one and one-quarter days per month, as required by Article 46.1 of both collective agreements which is as follows: 46.1 Effective January 1, 1982, an employee shall earn vacation credits at the following rates: (a) One and one-quarter (l-14) days per month during the first ten (10) years of continuous service; (b) One and two-thirds (l-2/3) days per month after ten (10) years of continuous service; (c) Two and one-twelfth (2-l/12) days per month after eighteen (18) years of continuous service. Also relevant are 46.2 and 46.3: 46.2 An employee is entitled to vacation credits under section 46.1 in respect of a month or part thereof in which he is at work or on leave with pay. 46.3 An employee is not entitled to vacation credits under section 46.1 in respect of a whole month in which he is absent from duty for any reason other than vacation leaye-of-absence, or leave-of-absence with pay. The grievor was at work from June 1 to 9 and from October 4 to 31. Thus she received vacation credits in respect of those two months, as required by 46.2 above. She did not, however, receive vacation credits in respect of the months of July, August and September because, in the employer's view she was absent from duty by reason of being on maternity leave, a ‘.. s - 11 - reason "other than vacation leave-of-absence or leave-of-absence with pay," the words used in 46.3. The employer considers that maternity leave, as stated in Article 49.1 (both in the former agreement and the more recent agreement) is a "leave-of-absence without pay," not a "leave-of-absence with pay." The distinction just mentioned is crucial because the principal thrust of the argument made on behalf of the griever is that the effect of the new benefits provided by 49.3.1 and 49.3.2 is to assure payment during most of the maternity lea;e period at 93 per cent of "the actual weekly rate of pay for her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave." Indeed, Mr. Anand argued that her pay (while on leave) was "close to 95 per cent of her former pay." She continued to be protected by certain insured benefits at the expense of the employer. Mr. Anand also drew attention to Article 44.2, as follows: COVERAGE DURING LEAVE-OF-ABSmCE WITHOLK PAY 44.2 During leaves-of-absence without pay, employees may continue participating in Basic Life, Supplementary Life, Dependent Life, Supplementary Health and Hospital, Long Term Income Protection, O.H.I.P. and the Dental Plan by arranging to pay full premiums through their ministry personnel or payroll branch. - 12 - In other words, in an ordinary leave-of-absence without pay, the absent employee is made responsible for the premium cost of certain benefits. By way of contrast, the new Article 49.4 (already quoted) makes a special case of maternity leave by providing that (notwithstanding 44.2) an employee on maternity leave allowance under the S.U.B., Plan "shall have her benefits coverage continued." Mr. Anand further suggested that since vacation credits are provided for by Article 46, which is in Part B of the agreement --- headed Employee benefits --- it follows that the vacation credit system should be considered a "benefit" in the true sense of the term. For the employer, Mr. Gordon submitted that: (1) Maternity leave is still clearly defined in 49.1 as"leave-of-absence without pay and without accumulation of credits." (2) Payments made under the Unemployment Insurance Act and the S.U.B. Plan are not "pay" from the employer for services rendered. (3) The specific provision in 49.4 for the continu- ation of insured benefits relates only to insured benefits and must be distinguished from "earned credits" such as vacation credits. .* c+ - 13 - (4) If indeed the employee was on "leave-of-absence with pay" then 49~.4 would be redundant. (5) There would be no entitlement under the Unem- ployment Insurance Act if the employee were on leave with pay. (6) If the parties had intended maternity leave to be considered as leave with pay, the parties would have said so, as the parties did in Article 51, which provides expressly for "leave-of-absence with pay' for six days under the "Short Term Sickness Plan," and at 75 per cent for 124 days thereafter. Reference was made to three cases: Northern Electric (1974) 6 L.A.C. (2d) 181 (Johnston); Northern Electric (1975) 8 L.A.C. (2d) 385 (Palmer.); Canada Safeway (1981) 30 L.A.C. (2d) .' 273 (H.D. Brown). In the Board's view, the unusual language appearing in the two agreements applicable here make other cases not very helpful, however interesting they may be. We find it impossible, having regard to the language of Article 49.1, to accept the contention that the griever was at any time on leave with pay, or the equivalent thereof. When the parties amended Article 49 they let 49.1 stand exactly as before --- expressly stating that "A Deputy Minister shall grant leave-of-absence without pay and without accumulation of credits..." Later in the same Article, as amended, the parties agreed on special arrangements to assure an eligible employee of allow- ances under the Unemployment Insurance Act and the SUB Plan. Such allowances cannot be considered "pay" by the employer,for services rendered. The parties also agreed in 49.4 to continue the protection of Insured Benefits, which would certainly be at the expense of the employer for some of them. In our view 49.4 represents a particular negotiated concession, an exception to the general statement in 49.1, and does not negative the effect of that general statement. Of course it is always open to an employer to make an agreement whereby an. employee receives maternity leave with It seems clear that in this case the employer did not .' pay. agree to do so: instead the employer agreed to implement an arrangement whereby the employee--- in lieu of being paid a salary --- would be assured an income from the U.I.C. and the S.U.B. totalling slightly less than what her full pay would have been at work. To agree on arrangements for income from other sources is not at all the same thing as agreeing that the employee shall remain on the payroll while on maternity le.ave. The employer agreed to the former, not the latter. Moreover, in the second agreement nothing whatever was done to alter the effect of 46.2 and 46.3, under which the griever was entitled to vacation credits for June and October (during parts of which she was at work) but not for July, August and September, during all of which she was absent from work. For the reasons aforesaid the conclusion must be that the employer did not misinterpret the applicable provisions of the two collective agreements, at least not in the griever's case. Thus it is necessary to dismiss her grievance. Dated at Toronto this 27th day of February, 1984. Member EBJ:sol H. Roberts