GSB#2009-1293, 2009-1750

UNION#2009-0523-0001, 2009-0635-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vitorino et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

HEARING

November 18, 2010.

Decision

1At issue is whether Article 33.3 of the collective agreement creates an explicit, or at least implicit, substantive right to “pay in lieu” (PIL) payments that have historically been paid to students. Article 33.3 provides: “A ‘student position… is an unclassified position with terms and conditions specifically applicable to students.”

Facts:

2The parties proceeded by way of an Agreed Statement of Facts. It provides:

Grievances Before the GSB

1. The following Grievances are before the GSB:

• Ontario Place Group Grievance (257 Grievors)

• Restoule Provincial Park Grievance (one Grievor)

• Ontario Travel Centre Grievances (four individual Grievors)

Collective Bargaining Between the Parties

2. On or about November 4, 2008, the parties exchanged proposals for the purpose of bargaining a new Collective Agreement. The matter of the Student pay-in-lieu (“PIL”) was not raised at that time. Bargaining continued daily thereafter.

3. On or about December 3 or 4, 2008, the Employer presented the Union with a letter addressed to Mr. Brian Gould, OPSEU Chief Negotiator, from David Logan, Assistant Deputy Minister, Employee Relations Division, HR Ontario, MGS. In his letter, Mr. Logan stated:

I am writing to advise you that the Employer provided students (as defined in Article 33.1) with pay-in-lieu of benefits, vacation and statutory holidays in error, and that the Employer will proceed to conform to the Collective Agreement in the future.

4. Article 33.1 of the Collective Agreement, under the heading “Student Employees”, states:

A student is a fixed-term employee occupying a “student position” during his or her regular school, college or university vacation period, or in an OPS Special Youth and/or Student Employment Program during his or her regular school, college or university session or vacation period or occupying a “co-operative education student position” under a cooperative education program.

5. Article 33.3 states:

A “student position” or “co-operative education student position” is a fixed-term position with terms and conditions specifically applicable to students.

6. Article 33.5 establishes the student wages during the term of the agreement.

7. Article 33.6 states:

The following articles shall apply to students employees as defined in Article 33.3: 1 [Recognition], 2 [Management Rights], 3 [No-Discrimination/Employment Equity], 4 [Check-Off of Union Dues], 22 [Grievance Procedure] and 80 [Term of Agreement]. No other articles shall apply.

8. After receiving Mr. Logan’s letter, bargaining between the parties continued. No proposal was tabled to amend the Collective Agreement and the matter of the Student PIL payments was not discussed.

9. On or about December 24, 2008, the parties achieved a Memorandum of Settlement (MOS)

10. On or about January 30, 2009, OPSEU ratified the MOS.

11. On or about February 26, 2009, the Employer ratified the MOS.

Student PIL Cessation

12. On or about April 30, 2009, Mr. Logan wrote to Mr. Gould in a letter entitled “re Student Pay in Lieu”. Mr. Logan stated:

Further to the letter provided to you on December 3, 2008, which advised you that the Employer provided students (as defined in Article 33.1) with pay-in-lieu of benefits, vacation and statutory holidays in error, I am writing to advise you that this practice will end effective May 4, 2009. The Employer will not seek to recover any payments made to students up to this dates.

13. On May 4, 2009, Mr. Kevin Sawicki, Acting Director of the Union Management Relations, MGS, wrote to the HROntario Leadership Team. Mr. Sawicki concluded his letter by stating:

Effective May 4, 2009, Student employees (as defined in Article 33.1) will no longer be provided with pay-in-lieu of benefits, vacation and statutory holidays. This change will be processed for the May 28, 2009 pay date. Any payment previously provided to students will not be recovered. A communication regarding this change will be sent to ministry managers via MyOPS and OPSEU has been notified of same.

14. On May 22, 2009, Mr. Sawicki wrote another memorandum to the HROntario Leadership Team. Mr. Sawicki attached messaging for OPS managers to use in conveying the cessation of Students Pills to his memorandum.

15. On Pay Date May 28, 2009, students who had worked full shifts during the May 4 to May 17, 2009 pay period received pay cheque Schedule 872. Similarly, on Pay Date May 28, 2009, Ontario Place Students who had worked full shifts during the Ontario Place pay period April 27 to May 10, 2009 pay period received pay cheque Schedule 872. The Schedule 872 pay cheque (whether “OPS” or Ontario Place” did not include any PIL payments (nor did any subsequent Schedule).

16. On June 2, 2009, Union Management Relations provided OPSE managers with a “Questions and Answers” document to further assist managers in responding to questions from student employees.

17. On or about June 4, 2009, OPSEU issued a news release, quoting OPSEU President Mr. Smokey Thomas.

18. Until the May 28, 2009 Pay Date, the Employer had included PIL payments on pay cheques for many (20+) years. A number of student contracts in certain previous years contained a PIL percentage. For example, WEAR form revision 2008/04 attached at Tab 8.

19. On May 16, 2009, Ontario Place officially opened for Summer 2009 (for weekends only in May).

20. Accordingly, the large majority of the Ontario Place Student Grievors commenced their regular shifts on or after May 16, 2009.

21. Starting on or about February 18, 2009, some Ontario Place Grievors had executed Unclassified Service Contracts, Group 1-Students (hereinafter “OP Student Contracts”).

22. Of the 256 OP Student Contracts, 215 were on a form marked “rev. 2009-1(02/16/2009)”.

23. 18 of the 256 OP Student Contracts made no referenced to any PIL percentage on the contract (on a form marked rev. 2009-2 (04/29/2009).

24. 237 of the 256 OP Service Contracts made reference to a PIL percentage on the Contract.

25. No Ontario Place Student Grievor received any PIL payment after Mr. David Logan’s letter dated April 30, 2009 to Mr. Gould of OPSEU. More specifically, for the 256 Ontario Place Grievors:

(a) 18 Student Grievors who signed pre-employment contracts that never made any reference to any PIL percentage on the contract also never in fact received any pay cheque from Ontario Place that included any PIL payment post-employment. More specifically, because these Student Grievors worked their first shifts and were paid after May 4, 2009 (certainly after April 27, 2009), their first pay cheque was issued on Pay Date May 28, 2009 (per Schedule 872) or on Pay Date June 11, 2009 (Schedule 873) or thereafter.

(b) 209 Student Grievors who signed pre-employment contracts that made reference to some PIL percentage never in fact received any pay cheque from Ontario Place that included any PIL payment post-employment. More specifically, because these Student Grievors worked their first shifts and were paid after May 4, 2009 (certainly after April 27, 2009), they received their first pay cheque on Pay Date May 28, 2009 (per Schedule 872) or on Pay Date June 11, 2009 (Schedule 873) or thereafter (see payroll attachment for details).

(c) 29 Student Grievors who signed pre-employment contracts that made reference to some PIL percentage, can that they received their first pay check before Schedule 872 because they had worked a shift(s) before April 27, 2009 (i.e., they were covered by Schedule 871 which did include PIL: see the Schedule 871 payroll summary for these 29 Student Grievors). However, these Student Grievors ceased receiving any PIL as per the subsequent Schedule 872 pay cheque.

26. On or about May 28, 2009, Mr. John Tracogna, Ontario Place General Manager, sent an email memorandum to all Ontario Place Students in OPSE Classifications. Mr. Tracogna also instructed all Ontario Place Managers to share his email with all Students who did not receive Ontario Place email. Mr. Tracogna stated, inter alia, that “you will no longer be provided with pay-in-lieu- of vacation and statutory holidays in addition to your hourly rate. This is reflected on the May 28, 2009 pay.” The memorandum was coped to the OPSEU Local President.

27. 119 of the 256 pre-employment contracts also stated that the Student Grievor would receive a wage rate for Summer 2009 that fell below the minimum applicable wage rate established by the collective agreement for work performed after March 31, 2009.

28. There is no dispute between the Employer and the Union that Ontario Place Student employees were paid at the wage rate established by the Collective Agreement.

Ontario Travel Centre Student PIL Grievances (4 Grievors)

29. Of the students employed at the various Ontario Travel Centres (“OTC”) in the Province, a total of four filed grievances (in late June 2009).

30. Three of the four OTC Student Grievors (Catherine Bedard, Melanie Couture and Cassandra Joly) signed pre-employment WEAR Forms [rev.2009/04] that did not make any reference to any PIL percentage.

31. Grievors’ Bedard, Joly and Couture started work on June 22, 2009.

32. Grievor Diotte signed pre-employment WEAR Form [rev.2008/04] that did make a reference to PIL percentage.

33. Grievor Diotte started work on May 4, 2009.

34. None of the four Grievors in fact received any pay cheque from OTC that included any PIL payment post-employment.

Restoule Provincial Park Grievance (one Grievor).

35. On August 27, 2009, the Grievor, Ms. Jacobs, filed a grievance.

36. Grievor Jacobs started work on May 4, 2009.

37. Grievor Jacobs never in fact received any pay cheque from Restoule Provincial Park that included any PIL Payment post-employment. Grievor Jacobs’ first pay cheque was the Schedule 872 pay cheque issued on or about May 28, 2009.

Reasons for Decision

3The Union asserts that student PIL is a “term and condition” of employment specifically applicable to students under Article 33.3, and that the Employer violated that provision when it unilaterally ceased its payment of PIL to students. The Employer contends that student PIL payments are not provided for in the collective agreement, were paid by mistake, and that the Employer properly gave notice and ceased payment of student PIL. Article 33.3 provides:

A “student position” or “co-operative education student position” is a fixed term position with terms and conditions specifically applicable to students.

4To interpret the meaning of Article 33.3, it is important to look at the collective agreement as a whole. Under the collective agreement, students are not the only “fixed-term” employees in the bargaining unit. There are general fixed-term employees (governed by Article 31A), seasonal employees (governed by Article 32), student employees (governed by Article 33) and GO-Temp employees (governed by Article 34). Article 31, entitled “Fixed-Term Employee”, is applicable to all of them, and states: “The only terms of this Agreement that apply to employees who are not regular employees are those that are set out in Articles 31A, 32, 33 and 34.”

5The collective agreement provisions applicable to general fixed-term employees (Article 31A) and seasonal employees (Article 32) are significantly more extensive than the provisions applicable to students or GO-temp employees. Further, both have specific terms related to pay-in-lieu of benefits. General fixed-term employees, under Article 31A.5.1, are specifically provided with “four and six tenths percent (4.6%) of gross pay, not including vacation pay,… to compensate for the holidays defined in Article 47 (Holidays).” Similarly, Article 31A.6.1, Vacation Pay, provides: “[f]our percent (4%) of gross pay shall be added to the employee’s regular pay in lieu of vacation leave with pay.” Finally, in lieu of benefits, general fixed-term employees are paid “an amount equal to six percent (6%) of their basic hourly rate for all hours worked exclusive of overtime.” That provision then continues:

Such in lieu payment shall not apply to seasonal employees as defined in Article 32.2 (Definition) who qualify for coverage pursuant to Article 32.8 (Season Employee Benefits – General).

6For Seasonal Employees, Article 32.13.1 provides that “[f]ive and three-quarters percent (5.75%) of gross pay shall be added to the employee’s regular pay in lieu of vacation leave with pay.” Article 32.14.1 provides that “[f]our and six tenths percent (4.6%) of gross pay…shall be added to the employee’s regular pay to compensate for the holidays as defined in Article 47 (Holidays). There are no similar provisions in Article 33 in relation to students.

7The provisions in both Article 31A and 32 are far more extensive than the provisions in Article 33, covering such areas as overtime, reporting pay, attendance credits and sick leave, pregnancy and parental leave, bereavement leave, health and safety, termination of employment, conversion to positions in the regular service, among others. Both also contain a significant list of other applicable articles. Article 31A.16.1 and 31A.16.2 provide:

31A.16.1

The following articles of the Central Collective Agreement shall also apply to fixed-term employees other than seasonal, student and GO temp employees: 1, 2, 3, 4, 5, 6.1, 6.3, 6.4, 8, 9, 10.1, 13, 14, 15, 16, 18, 21, 22, 23, 24, 27, 28, 45, 48.3, 49, and 80.

31A.16.2

The following articles of the Bargaining Unit Collective Agreement shall also apply to fixed-term employees other than seasonal, student and GO Temp employees: UN4, UN6, UN7, UN10, UN11, UN 12; or COR5, COR6, COR7, COR10, COR11, COR12, COR14.

A similar list, though not as extensive, applies to Seasonal Employees as set out in Articles 32.21.1 and 32.21.2 and apply only to seasonal employees.

8In regard to student employees, Article 33.6 states: “The following articles shall apply to student employees as defined in Article 33.1: 1, 2, 3, 4, 22 and 80. No other articles shall apply.” Finally, Article 33.7 provides: “A student who has completed three (3) consecutive months of work will be eligible for bereavement leave pursuant to Article 32.15.1.”

9In this case, the Board is being asked to interpret the meaning of Article 33.3 – specifically whether it explicitly, or implicitly, makes student PIL a “term and condition of employment specifically applicable to students”, particularly given the extensive history (20+ years) of the Employer paying such benefits to student employees. At this juncture, the parties’ are putting aside any issues of estoppel and are focusing solely on the meaning of Article 33.3.

10The principles that guide an arbitrator in construing a collective agreement are well-established. The fundamental objective is to determine the intent of the parties who agreed to the language. As stated in Brown and Beatty, Canadian Labour Arbitration, 3rd Ed, at par. 4:2100:

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.

The same excerpt continues that “arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense, unless that would lead to some absurdity or inconsistency with the rest of the collective agreement…” It further states that “where there is no ambiguity or lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive. …”

11In addition, when it comes to a monetary benefit – which PIL payments clearly are – it is generally agreed that “the onus is upon the union to establish that the employer has agreed in clear and unequivocal terms to provide a money benefit to the employees as part of the compensation that are to receive for their labour.” Re Noranda Mines Ltd. (Babine Division) and United Steelworkers of America, Local 898 [1982] 1 W.L.A.C. 246, 261 (Hope). As the arbitrator explained at p. 262: “I find it inherently unlikely that the employer would express an intention to confer substantial monetary benefits on employees in language from which that intention emerges obliquely or by inference.”

12Having considered the arguments of the parties in light of the collective agreement as a whole, I cannot conclude that Article 33.3 may be read to include PIL payments as a “term and condition of employment specifically applicable to students”, either explicitly or implicitly.

13Certainly, there is nothing explicit in Article 33.3 which relates to PIL payments. This stands in stark contrast to the provisions in Articles 31A and 32 where the parties’ specifically include pay-in-lieu provisions for regular fixed-term and seasonal employees. Nor can I conclude that PIL payments are implicitly part of Article 33.3.

14First, when considering Article 33 as a whole, Article 33.3 is fundamentally definitional, not substantive. Articles 33.1 to 33.4 are all definitional. Article 33.1 provides the basic definition of a student employee, then Articles 33.2, 33.3 and 33.4 provide clarity to the terms used in Article 33.1. Article 33.2 clarifies a “regular vacation period”; Article 33.3 clarifies a “student position” and “co-operative education student position”; and Article 33. 4 clarifies a “co-operative educational training program.”

15Article 33 then provides specific terms and benefits applicable to student employees, beginning with Article 33.5, which sets out student wage rates. Article 33.6 states which articles of the collective agreement “shall apply to student employees.” Significantly, it enumerates the applicable articles, then states: “[n]o other articles shall apply.” Given this language and structure of Article 33, an interpretation of Article 33.3 to include a monetary benefit such as PIL payments is not a construction it may reasonably bear.

16The Union argues, however, that the language “terms and conditions of employment applicable to students” in Article 33.3 is ambiguous and that not all such terms and conditions are set out in the collective agreement. It asserts that the consistent practice of paying students PIL must be considered in interpreting the meaning of the provision. In support it cites to Re OPSEU (Union/Barrow et al.) and St. Lawrence Parks Commission, GSB No. 0561/99 (Abramsky), at p. 30, where the Board recognized that the words “ ‘terms and conditions of employment’ are broad and include matters such as job duties which are not set out in the collective agreement.” It also cites to Re Borough of Scarborough and Scarborough Fire-fighters Association, Local 626, International Association of Fire-fighters et al. (1979), 1979 CanLII 1832 (ON HCJ), 26 O.R. (2d) 298 (Ont. Div. Ct.), and Re Liquor Control Board of Ontario and Ontario Liquor Board Employees’ Union et al. (1980), 1980 CanLII 1857 (ON HCJ), 29 O.R. (2d) 705 (Ont. Div. Ct.).

17The Union also argues that to interpret Article 33.6 as “all-inclusive” would lead to an absurd result. It notes that it does not refer to Article 33.5 as applicable, nor does it include some basic provisions such as health and safety, which clearly apply to all employees. It argues that Article 33.6 does not use limiting words, such as “the following terms and conditions” or the “terms and conditions as outlined below.” It submits that the parties could have used such limiting language, but did not.

18The Union is correct when it asserts that the words “terms and conditions of employment specifically applicable to students” are broad and include matters not specifically included in the collective agreement. Re OPSEU (Union/Barrows), supra. As stated in Re Isidore Garon Itee and Tremblay 2006 SCC 2, [2006] S.C.J. No. 3 (S.C.C.), cited by the Employer, at par. 28, “[n]ot everything is set out in the collective agreement….” But that does not mean that the words are ambiguous, sufficient to allow the introduction of extrinsic evidence of past practice as an aid to interpretation.

19Where the language of a collective agreement is clear on a consideration of the document alone and can be applied without difficulty to the facts of a case, there is no patent or latent ambiguity. That is the situation here.

20When one considers the entire collective agreement, particularly as it applies to fixed-term employees, the agreement is clear – the parties’ were very specific when it came to determining what terms and conditions of the agreement would apply to students – and they did not include PIL payments.

21The principle of construction of “inclusio unius est exclusio alterius” – the inclusion of the one excludes the other - applies here. Under that principle, when the parties specifically include a benefit for one (or more) groups of employees, but do not do so for others, the inference is that the parties did not intend to provide that benefit to the excluded groups. In this case, not only did the parties’ specifically include PIL payments for general fixed-term employees and seasonal employees – and fail to include it for student employees or GO-Temp employees – the parties’ explicitly limited the applicable provisions of the collective agreement to students, by stating “[n]o other article shall apply.” That is an echo of Article 31 which states: “The only terms of this Agreement that apply to employees who are not regular employees are those that are set out in Articles 31A, 32, 33 and 34.” Further, where the parties list the articles applicable to general fixed-term employees in Article 31A.16.1 they state that “[t]he following articles of the Central Collective Agreement shall also apply to fixed-term employees other than seasonal, student and GO temp employees….” (emphasis added). The parties could not have been more clear – the fixed-term employees receive the benefits of the provisions stated in their respective provisions – and no others.

22In my view, the parties used very limiting language in Article 33. Given the words “no other articles shall apply”, there would be nothing gained by using the words suggested by the Union – “the following terms and conditions” or “terms and conditions as outlined. …” The provision lists the articles that “shall apply” and states that “no other articles shall apply.” The language used clearly limits the articles that apply to students.

23The case of Re OPSEU (McGann) and Ministry of the Attorney General (2001), GSB No. 0789/98 (Harris) is instructive. In that case, the grievor was an unclassified Civil Court Registrar (CCR) working irregular hours as required up to 36.25 per week. The Union argued that the grievor was entitled to the benefits of Article OAD 2.1, which defined the “normal hours of work” for employees as 36¼ per week and 7¼ per day. That provision, however, did not apply to unclassified employees pursuant to then Article 31.16.2, which set out a specific list of articles that “shall also apply to unclassified employees” but did not include Article OAD 2.1. The Employer opposed the Union’s contention, arguing at p. 17 that “[i]t would simply be incompatible with the collective agreement to give the grievor the benefit of OAD 2.1 when it is specifically not applicable to the unclassified staff.” The Board agreed, concluding that to accept the Union’s position would violate Article 22.14.6 which states that the “GSB shall have no jurisdiction to alter, change amend or enlarge any provision of the collective agreement.” The same provision still exists in the current collective agreement. The Board, at p. 18, stated:

For the Union to be successful, the Board must find that the grievor is covered by OAD 2.1, notwithstanding that Article 31.15.2 does not include OAD 2.1 in the list of articles applicable to unclassified employees. To make OAD 2.1 applicable the Board would in effect be adding it to Article 31.16.2 contrary to Article 22.14.16. …

In effect, the Union is attempting to do indirectly what the list in Article 31.16.2 expressly denies it.

24The same is true here. The Union is attempting to include PIL benefits for student employees under Article 33.3, notwithstanding that Article 33.6 does not include it in the list of articles applicable to student employees. To make PIL payments applicable to students, the Board would, in effect, be adding it to Article 33.6, which would be contrary to Article 22.14.6. Article 33.6 is very clear – it lists the articles that apply to student employees and states “no other articles shall apply.” The intent of the parties to limit the collective agreement terms applicable to student employees to the ones listed could not be clearer.

25Nor do I believe that viewing Article 33.6 as “all-inclusive” of contractual entitlements leads to an absurd result. There is no question that other terms and conditions of employment apply to students. Not everything applicable to the students is contained in the collective agreement. For example, employment-related statutes apply, and there are other conditions of employment that are not found in the four-corners of the collective agreement. But the Union is asserting that PIL payments are a monetary entitlement under the collective agreement – specifically Article 33.3. For the reasons stated in this decision, that interpretation is not supported by the provisions of the agreement when considered as a whole.

26Further, given the structure of Article 33 – definitional followed by substantive terms – it is not “absurd” that Article 33.6 does not refer to Article 33.5. Article 33, after setting out the definitions applicable to students, lays out the substantive terms that apply to students – including wages, and in certain cases, bereavement leave, plus the specific articles that the parties’ have agreed apply to students. All of the provisions set out in Article 33 apply to students.

27Consideration of Article 33.7 also supports the conclusion that the parties were very specific when it came to the terms of employment applicable to student employees, and that those terms do not include PIL. Article 33.7 states that “[a] student who has completed three (3) consecutive months of work will be eligible for bereavement leave pursuant to Article 32.15.1.” This provision clearly indicates that when the parties wanted to include a benefit given to a fixed-term or seasonal employee for students, they knew how to do so and did so explicitly. There is no similar provision for PIL payments.

28In so ruling, I am not unmindful of the significance of PIL payments to student employees. Historically, it has been a significant percentage of their earnings. As the Union asserts, PIL payments may be more than a “gratuitous payment” to the students. But the question presented here is whether they are an entitlement under the collective agreement. To be an entitlement there must be relatively clear language that the parties intended to provide students with this benefit – language which is not present in Article 33.

Conclusion:

29For the reasons set forth above, I cannot conclude that student PIL payments are a “term and condition of employment specifically applicable to students” under Article 33.3. The matter is to be set for hearing on the remaining issues.