The URL can be used to link to this page

Home My WebLink About1983-0684.Vig.85-01-22Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Shamin Viq) Grievor - and '- The Crown in Right of Ontario (Ministry of Energy) Employer J. W. Samuels Vice Chairman G. A. Nabi Member L. D. Foreman Member For the Grievor: A. Millard Barrister & Solicitor For the Employer: R.B. Itenson Senior Staff Relations Officer Staff Relations Branch Civil Service Commission Hearing: November 27, 1984 The grievor was on maternity leave from January 17 to May 13, 1983. During that period she received an a1 lowance under the Supplementary Unemployment Benefit Plan, pursuant to Article 49.3.2 of the Collective Agreement with respect to Working Conditions and Employee Benefits. She claims that she did not receive all the monies to which she was entitled under this Plan. Article 49.3.2 reads: 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) 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. In short, the Plan enables an employee to have 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" for up to 17 weeks of maternity leave. This money will come either from UIC or from the Employer. The problem arises because, when the grievor left for her leave, the 1983 agreement between the parties (the Union and the Management Board of Cabinet) for wages and benefits had not yet been signed, and her allowance was based on her rate of pay for 1982. The new agreement (which is separate from the one dealing with -3- working conditions and employee benefits) was reached on March 18, 1983, and provided for a wage increase retroactive to January 1, 1983. She received pay at the 1983 rate for the first few weeks in January when she was at work, but her allowance under Article 49.3.2 remained as calculated on her 1982 rate of pay. Is Article 49.3.2 to be read so as to provide for calculation of the allowance under the Supplementary Unemployment Benefit Plan on the basis of the retroactive 1983 rates of pay? This Board has already decided the matter in favour of the Employer in Jensen, 613/83. The Board said (at pages 3-4): In Re Salvation Army Grace General Hospital, Ottawa, 25 L.A.C. (2d) 235 (Carter, IWO) 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 retroactivity, however, is not all-embracing. Obviously, it does not apply in the presence of clear and specific language in the collective agree- ment to the contrary." This seems to us to be an eminently sensible rule of construction. A collective agreement provision can be made to apply retroactively for one purpose but not for another; its application can be excluded by the use of appropriate language. It would be difficult to choose language that would more clearly and specifically bar the application of a retroactive wage in- crease to the calculation of a maternity leave allowance than does that found in Article 49.3.2. That language, we conclude, ex- presses the intention of the parties to the collective agreement that a maternity leave allowance will be based on the wage or salary being paid to the employee ("which she was receiving”) at a particular point in time ("on the last day worked prior to the commencement of the .maternity leave"). 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. f -2- . The griever was on maternity leave from January 17 to May 13, 1983. During that period she received an allowance under the Supplementary Unemployment Benefit Plan, pursuant to Article 49.3.2 of the Collective Agreement with respect to Working Conditions and Employee Benefits. She claims that she did not receive all the monies to which she was entitled under this Plan. Article 49.3.2 reads: 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) 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. In short, the Plan enables an employee to have 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" for up to 17 weeks~of maternity leave. This money will come either from UIC or from the Employer. The problem arises because, when the grievor left for her leave, the 1983 agreement between the parties (the Union and the Management Board of Cabinet) for wages and benefits had not yet been signed, and her aliowance was based on her rate of pay for 1982. The new agreement (which is separate from the one dealing with I 5 : -4- In the view we take of the case, it becomes unnecessary to make reference to the Unemployment Insurance Act and Regu- lations for purposes of interpretation of Article 49.3.2. At our hearing, the Employer argued that the matter was res judicata, - because we were faced with the same question, between the same parties, and the previous decision was final and binding. This is similar to the estoppel which operated in Battams, 545/81 (see pages 4-6), and in Tkach, 479/82, 64/83, 65/83, 299/83, and 300/83 (see pages 7-8). If the Union was unhappy with Jensen, it could have applied for judicial review. The Union argued that we had the power to overturn Jensen if we found the decision to be "manifestly wrong". We agree. But is the decision manifestly wrong? We think not. The interpretation placed on the language by the Board in Jensen is one which the language can bear. There is no doubt that, on her last day worked prior to the commencement of her maternity leave, the grievor was receiving pay at the 1982 rate of pay... This was her "actual weekly rate of pay for her classification" at that time. It was not until later that the parties changed the rates retto- actively. Furthermore, the Board in Jensen considered the matter in light of a proper view of the law. At our hearing, counsel for the Union reviewed extensively and ably the jurisprudence concerning retroactivity. It can be neatly summed up as it was in the Salvation Army Grace Hospital case, cited and applied by the Board in Jensen. The Union's case before us was that the previous Board wrongly applied the principles, and as we have said we think that the Board's conclusion is one which the language can bear. -5- . : It is interesting to note that the parties have provided elsewhere in their Collective Agreement with respect to Working Conditions and Employee Benefits for the application of retroactivity and non-application of retroactivity. For example, Article 39.3 makes it clear that retroactivity will not apply: - "The amount of basic life insurance will be adjusted with changes in the employee's salary from the date of approval of the increase or the effective date,.whichever is later." (emphasis added) Whereas, Article 41.2.1(a) makes it clear that retroactjvity will apply: "The Long Term Income Protection benefit is sixty-six and two-thirds percent (66-Z/3%) of the employee's gross salary at the date of disability, including any retro- active salary adjustment to which the employee 1s entitled." Iemphasis added) .In sum, we find that there is no manifest error in the Board's decision in Jensen, and the grievance is dismissed. Done at London, Ontario, this 22nd day of January , 1985 . _,’ (I --‘~ ‘3 ,_,.” 1 ,’ 3-W. Samuels, Vice Chairman G.A. Nabi, Member L.D. Foreman, Member