Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Government Services), 2011 CanLII 36422

GSB#2010-0405

UNION#2010-0999-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry and Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

May 3, 2011.

DECISION

1On March 11, 2010, the Union filed a policy grievance asserting that the Employer violated Appendix COR7 of the collective agreement in regard to the payment of attendance incentives. A number of issues are contained within that grievance, including whether the Employer violated Appendix COR7 by failing to pay the incentive to fixed term employees. A Group grievance and at least two individual grievances, from two fixed-term Correctional Officers, John Manes and Stephen Baynham, alleging the same violation have also been filed. The Employer has moved to dismiss these claims on the basis that the grievances, on their face and on the particulars provided by the union, do not disclose a prima facie case for a violation of Appendix COR7. This decision determines that motion.

Facts

2The parties agreed, for the purpose of this motion, to accept as true all of the factual assertions set forth in the Union’s particulars. Only those particulars with relevance to the Employer’s preliminary motion will be stated here:

1. As is particularized below, these grievances claim that the Employer has violated the collective agreement by improperly denying, or improperly calculating entitlement to, incentive pay under Appendix COR7.

Union Grievance – 2010-0999-0010

2. OPSEU grieves that the manner in which the employer has implemented Appendix COR7 to the Correctional Bargaining Unit collective agreement is in violation of the collective agreement.

3. The Union claims that by denying incentive pay to unclassified employees as well as failing to properly calculate incentive pay entitlements for classified Correctional Officer (CO)2s … the Employer has breached the collective agreement.

4. On various dates throughout the first half of 2010, COs and YSOs were paid their incentive pay in accordance with Appendix COR7. However, some employees did not receive this pay or did not receive their full entitlements to this pay. …

5. Unclassified correctional officers were denied any incentive pay.

Individual Grievances

Classification

6. At least two grievances have been filed regarding employees who were denied incentive pay due to their status as unclassified workers.

7. John Manes is, and was throughout 2009 and 2010, an unclassified correctional officer. He works at the Toronto West Detention centre. Mr. Manes has been employed by the Employer since September 28, 2008. On May 13, 2010, Mr. Manes was not paid incentive pay by the Employer on the basis that unclassified employees are not entitled to COR7 incentive pay. Mr. Manes’ grievance was filed on May 12, 2010.

8. Steven Baynham is, and was throughout 2009 and 2010, an unclassified correctional officer at Toronto West Detention Centre. Mr. Baynham has been employed with the Employer since September 28, 2008. On May 13, 2010, Mr. Baynham was not paid incentive pay by the Employer on the basis that unclassified employees are not entitled to COR& incentive pay. Mr. Baynham’s grievance was filed on May 12, 2010.

9. Both grievors seek payment of the improperly denied incentive pay.

Appendix COR7 provides, in pertinent part, as follows:

ABSENTEEISM TARGET INCENTIVES

15. If the average annual absences for Correctional Officers and Youth Workers in the Regular Service is less than or equal to the absenteeism targets set out in article COR15.1(a) through COR 15.1IdO and COR 18.1(a) through COR18.1(d), the Employer shall provide lump sum payments to regular Correctional Officers and regular Youth Workers as follows:

a. In the first year of the collective agreement:

i. 2% of the employee’s straight time hourly rate as of December 31, 2009, for all hours worked in the period from the date of ratification to December 31, 2009, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(a) and CORR 18.1 (a); or…

ii. …

Also relevant is Part A, Working Conditions, as follows:

Index of Acronyms

For ease of reference acronyms have been added to visually indicate the applicability of an article to the following employee groups.

FXT – Fixed Term Employee

SE – Seasonal Employee

ST – Student Employee

FPT – Flexible Part Time Employee

RPT – Regular Part Time Employee

GO – GO Temp

These acronyms are not intended to substitute for the language of the Collective Agreement. Reliance should only be placed on the actual text of the Collective Agreement.

DEFINITIONS

1.1 A “regular employee” is a public servant appointed under section 32 of the Public Service Act of Ontario, 2006 other than for a fixed term.

1.2 “Regular Service” is that part of the Public Service composed of regular employees.

1.3 A “fixed term employee” is a public servant appointed under Part III of the Public Service of Ontario Act, 2006 for a fixed term.

1.4 “Fixed Term Service” is that part of the Public Service composed of fixed term employees.

1.5 A “Regular part-time employee” is a regular part-time employee who has been appointed to the Regular Service.

3These definitions mirror terminology changes that were made in the Public Service Act of Ontario, 2006(PSOA). The PSOA uses different words and phrases for some of the terms included in the former Public Service Act (PSA). The term “classified employee”, for example, is now a “regular employee” – a public servant appointed under PSOA s. 32 other than for a fixed term. An “unclassified employee” is now a “fixed-term employee” – a public servant appointed under PSOA s. 32 or s.47 for a fixed term. These changes were further agreed upon by the parties in a “Housekeeping” agreement in relation to the Correctional Collective Agreement in April 2009.

ARTICLE 31 – FIXED-TERM EMPLOYEES

31. 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.

ARTICLE 31A – FIXED-TERM EMPLOYEES OTHER THAN SEASONAL, STUDENT AND GO TEMP EMPLOYEES (FXT)

31A.1 Articles 31A.2 to 31A.16 apply only to fixed term employees other than season, student and GO Temp employees.

31A.2 WAGES

31A.2.1 The rate of the equivalent Regular Service classification shall apply. If there is no equivalent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations.

31A.2.2. A fixed-term employee covered by Article 31A shall be entitled to the same provisions regarding progression through the salary range and retroactivity of salary revisions as those agreed upon for the Bargaining Unit to which they correspond.

31A.16 OTHER APPLICABLE ARTICLES

31.A.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.

31.A.16.2 The following articles of the Bargaining Unit Collective Agreements shall also apply to fixed-term employees other than seasonal, student and GO Temp employees: UN4, UN6, UN7, UN10, UN11, UN12; or COR4, COR6, COR7, COR 10, COR 11, COR 12, COR 14.

COR 15 – REGULAR CORRECTIONAL OFFICER AND YOUTH WORKERS ABSENTEEISM TARGETS

COR15.1 a) In the event that the average absences from the date of ratification to December 31, 2009 due to non-work related illness or injury for Correctional Officers and Youth Workers in the Regular Service is greater than one hundred and ninety-two (192) hours in the first calendar year of the collective agreement (to be pro-rated to reflect the period from the date of ratification to December 31, 2009 is less than one (1) calendar year), ARTICLE COR8.2.3 shall be null and void and Article COR 8.2.3A shall be implemented effective January 1, 2010 until December 31, 2010. …

Arguments of the Parties

For the Employer

4The Employer asserts that the Union’s claim that the Employer violated Appendix COR7 by failing to pay absenteeism target incentive payments to fixed term employees does not disclose a prima facie case for a violation of that provision. It asserts that, by its explicit terms, the provision applies only to “regular” Correctional Officers or Youth Workers, which is defined in the collective agreement to mean a “public servant appointed under section 32 of the Public Service of Ontario Act, 2006other than for a fixed term.” (emphasis added). It further relies on the fact that the incentive is based on the “average annual absences for Correctional Officers and Youth Workers in the Regular Service…” It submits that, by its terms, Appendix COR7 applies only to “regular” Correctional Officer and Youth Workers, and does not included fixed-term employees.

5It further notes that Appendix COR7 was not included by the parties among the applicable collective agreement provisions that apply to fixed term employees under Article 31A.16.2

6The Employer further relies on the labour relations purpose of the provision – to reward regular employees for improved attendance. It submits that the costs of absenteeism of regular employees to the Employer includes their entitlement to sick pay under Article 44 (at either 100% or 75%) for a maximum of 130 days, plus the cost of a replacement employee. The same costs are not incurred for fixed-term employees.

7Further, the absenteeism incentive payment is based on the absenteeism of regular Correctional Officers and Youth Workers – not fixed term employees. The Employer submits that fixed-term employee attendance does not impact whether the attendance targets are met or not, so it makes no sense to pay them this incentive where they played no role in achieving the results.

8The Employer argues that under the clear language of the collective agreement as well as a contextual, purposive approach to interpretation – the outcome is the same: the absenteeism target incentive does not apply to fixed-term employees. It submits that the grievances – which allege that the Employer violated Appendix COR7 by not paying the incentive to fixed-term employees, therefore fails to establish a prima facie case, and must be dismissed. In support it cites to Re OPSEU (Couture et al.) and Ministry of Government Services (2011), GSB No. 2008-3329 (Dissanayake). The Employer also cites to Brown and Beatty, Canadian Labour Arbitration, par. 4:2000 and 4:2100.

9The Employer submits that any other interpretation would lead to an absurd result and improperly amend the collective agreement, which is prohibited by Article 22.14.6 of the agreement.

For the Union

10The Union acknowledges the language of Appendix COR7 and the definitions contained in Part A of the collective agreement. It submits, however, that Article 31A.16.2, which lists the additional collective agreement provisions applicable to fixed-term employees is silent in terms of the Appendices. It submits that the non-inclusion of Appendix COR7 does not mean that it does not apply to fixed term employees.

11Substantively, the Union relies on Article 31A.2.1, in regard to wages, which states that the “rate of the equivalent Regular Service classification shall apply…” to fixed term employees. It submits that the absenteeism target incentive, which gives employees a percentage of their straight time hourly rate, is tantamount to an increase in the regular employees’ wage rate to which the fixed term employees are entitled. It submits that under Article 31A.2.1, the fixed term employees should be paid the equivalent of what the regular service is paid.

Employer Reply

12The Employer asserts that Article 31A.2.1 does not entitle fixed term employees to receive absenteeism target incentives under Appendix COR7. It points out that the incentive is a “lump sum payment” – not an increase in the wage rate.

13It further contends that where a party is claiming a monetary benefit, the onus is on the Union to establish that the Employer has agreed “in clear and unequivocal terms”, citing Re OPSEU (Vittorino et al.) and Ministry of Government Services (2010), GSB No. 2009-1293 (Abramsky), at par. 11.

Reasons for Decision

14As set out in Re OPSEU (Couture et al.) supra at par. 6, a motion to dismiss on the basis that there is no prima facie case succeeds “if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.” In assessing that criteria, the Board may interpret provisions of the collective agreement and decide legal issues. Re OPSEU (Couture et al.), supra at par. 13.

15Applying that standard here, I conclude that the Employer’s motion to dismiss must be granted. The facts, as they pertained to the fixed term employees, were undisputed. The only issue is one of interpretation – whether or not the attendance target incentive in Appendix COR7 applies to fixed-term employees. Based on the clear language of the provision, the definitions set out in the collective agreement as well as the Housekeeping agreement and the purpose of the incentive, I conclude that the provision does not apply to fixed-term employees.

16As stated in Brown and Beatty, Canadian Labour Arbitration at par. 4:2100, “the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it.” In determining that intention, “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.”

17In Appendix COR7, the parties agreed, based on the average annual absences for Correctional Officers and Youth Workers “in the Regular Service”, that if certain targets were met, “the Employer shall provide lump sum payments to regular Correctional Officers and regular Youth Workers…” The terms “Regular Service” and “regular” Correctional Officers and Youth Workers, have defined meanings, as set out in Part A of the collective agreement. A “regular employee” is a public servant appointed under section 32 of the Public Service Act of Ontario, 2006 other than for a fixed term.” (emphasis added). Clearly and unequivocally it excludes fixed term employees. “Regular Service” is defined as “that part of the Public Service composed of regular employees.” Again, it does not include fixed term employees. To rule otherwise would clearly be an improper amendment to the collective agreement.

18Further, the purpose of the provision is to reduce absenteeism (and then reward) regular Correctional Officers and Youth Workers if they meet absenteeism targets. Only the attendance of regular employees is considered in making this assessment and calculation. As the Employer argued, the fixed term employees’ attendance (or lack thereof) plays no role in determining whether the targets are met, and it makes no sense to include them in an incentive program aimed at regular staff.

19In so ruling, I cannot accept the Union’s contention that the fixed term employees are entitled to the absenteeism target incentive payment under Article 31A.2, Wages. That provision states that “[t]he rate of the equivalent Regular Service classification shall apply” to fixed term employees. Fixed term Correctional Officers are paid the rate of the equivalent regular Correctional Officer. This does not include, however, any lump sum payment under Appendix COR7, if absenteeism targets are met. A lump sum payment does not become part of the wage rate. It is a one-time payment, paid if the absenteeism target is met.

20As stated in Re OPSEU (Vittorino et al.), supra, payment of a monetary benefit to an employee must be based on “clear and unequivocal terms.” Article 31A.2 falls significantly short in relation to absenteeism target incentive payments.

21Further, even if Article 31A.2 could possibly be construed in the manner suggested by the Union, that interpretation could not stand in light of the clear language of Appendix COR7 limiting its terms to “regular” employees, nor the failure of the parties to include Appendix COR7 as a provision applicable to fixed term employees. Re OPSEU (Vittorino et al.) supra at pars. 20-24. The Union is seeking to include fixed term employees within the ambit of Appendix COR7, notwithstanding that the provision did not include fixed terms employees, and was not included by Article 31A.16.

Conclusion:

22For all of the reasons set forth above, the Employer’s motion to dismiss is allowed insofar as the grievances allege that the Employer violated Appendix COR7 in relation to fixed term employees.