Loading...
HomeMy WebLinkAbout1983-0613.Jensen.84-08-20IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Doreen M. Jensen) Grievor - and - , The Crown in Right of Ontario (Ministry of the Attorney General) Employer Before: P. Draper Vice Chairman P. Craven Member W. A. Lobraico ~Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: W. J. Hayter, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing: May 9, 1984 - 2 - , i DECISION -------- .====z==---__--_ The Grievor, Doreen Jensen, grieves that she has been denied the maternity leave allowance to which she is entitled under Article 49.3.2(b) of the "working conditions" collective agreement and requests payment of allowance owing, with interest. The Employer consenting, the grievance was amended at the outset of the hearing to include reference to Article 49.3.2(a). The Grievor went on maternity leave on January 31, 1983. The ~allowance she received was based on her then current salary. In the early months of 1983, the Employer and the Union were negotiating the renewal of the wage agreements that had expired on December 31, 1982.. (Employee rights are found in a number of documents having the force of collective agreements and which togetherconstitute a "master'agreement.O See Sysiuk et al, 191179.) The new wage agreements were concluded in March, 1983, and provided for a wage increase retroactive to January 1, 1983. The retroactive wage increase was not applied to the Grievor's maternity leave allowance, hence the present grievance. Under both paragraphs (a) and (b) of Article 49.3.2, the maternity leave allowance to which an employee is entitled under the Supplementary Unemployment Benefit Plan is stated to be the equivalent of 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." - 3 - c, ,. In Re Salvation Army Grace General Hospital, Ottawa, 25 L.A.C.(Zd) 235(Carter, 19801. the arbitrator notes the trend of arbitral interpretation to consider retroactive duration clauses to apply to the collective agreement as a whole except where to do so would lead to absurd, impractical or unintended results, and goes on to state: "This assumption of retroactiv however, is not all-embracing. Obviously, it does not apply ity, in the presence of clear and specific language in the collective agreement to the contrary." This seems to us to be an eminently sensible ru 1’ can 'be made for another appropriate e of construction. A collective agreement provision to apply retroactively for one purpose but not its application_can be excluded by the use of language. It would be difficu more clearly and specifically It to choose language that would bar the appl ication of a retro- active wage increase to the calculation of a maternity leave allowance than does that found in Article 49.3.2. That language, we conclude, expresses the intention of the parties to the collective agreement that a maternity leave allowance the employee in time will be based on the wage or salary being paid to ("which she was receiving") ("on the last day worked pr maternity leave"). at a particular. point ior to the commencement of the We are satisfied that the effect of the words of Article 49.3.2, given their plain and ordinary meaning, is that the retroactive wage increase to which the Grievor became entitled cannot be taken into account in the calculation of her maternity leave allowance. , - - 4 - x. - , In the view we take of the case, it becomes unnecessary to make reference to the Unemployment Insurance Act and Regulations for purposes of interpretation of Article 49.3.2. The grievance is dismissed. DATED at Consecon, Ontario, this 20th day of August , 1984. P. Draper, Vice Chairman --. f ~ \,/p. Craven, Member---'~ " W. A. Lb~bCaico, Member ISC