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

January 16 and January 30, 2012.

Decision

1The grievance alleges that the Employer has violated Appendix COR-7 by failing to include time that employees spend on approved leaves of absence, or on acting assignments, in the calculation of “hours worked” under this provision. Appendix COR 7 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 15.11(d) and COR 18.1(a) through COR 18.1(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 COR 18.1(a); or

ii. 3% of the employee’s straight time hourly rate….; or

iii. 4% of the employee’s straight time hourly rate…; or

iv. 5% of the employee’s straight time hourly rate…

FACTS

The parties proceeded by way of agreed facts, as follows:

2. There are approximately 2900 Regular Correctional Officers and approximately 760 Fixed-Term Correctional Officers in the Ministry of Corrections.

3. There are approximately 520 Regular Youth Services Officers and approximately 280 Fixed-Term Youth Services Officers in the Ministry of Children and Youth Services.

4. All Correctional Officers and Youth Services Officers are in the Correctional Bargaining Unit.

5. Reducing the costs associated with Regular Correctional Officer sick time was a central issue for the Employer during the round of collective bargaining for the 2009-2012 Collective Agreement.

6. During bargaining the Annual Report of the Auditor General of Ontario was released which relying on Ministry records identified that the average number of sick days per Regular Correctional Officer was 32.5 days based on an equivalent eight hour day.

7. The Employer negotiating team for the COR Bargaining Unit was Mark Dittenhoffer, Cassandra Burt-Gerrans, Rose Buhagiar, Barry Thomas, Dave Sheen, Don Chillman and Gary Hogarth.

8. Employer proposals to amend the sick time provisions for Correctional Officers and Youth Workers were rejected by the Union.

9. The Parties agreed to other measures to address the Regular Correctional Officer sick time.

10. The Union negotiating team for the COR Bargaining Unit was Paul Johnstone, Richard Cunningham, Tom O’Neill, John Mearini, David Graves, Peter Wright, David Kerr and Robert Field. The Union negotiating team originally requested an incentive program.

11. The Employer’s negotiating team returned a proposal to the Union in late February 2009. The Employer’s proposal provided that the incentive payment would be provided based on classified Correctional Officers and classified Youth Service Officers hitting an attendance target.

12. The payout was a percentage payable on all hours worked for Regular Correctional Officers and Regular Youth Services Officers.

13. The Union’s negotiating team was all verbally advised of the Employer’s proposal.

14. The Parties agreed to Absenteeism Target Incentives during the round of collective bargaining for the 2009-2012 Collective Agreement. It was the Employer’s position that this would assist in addressing the high rate of absenteeism within the Correctional Bargaining Unit.

15. The Parties agreed to new overtime provisions should the Absenteeism Target not be met in any of the years between 2009-2012.

16. It was and continues to be the Employers position that the Absenteeism Target Incentives agreed to during the round of collective bargaining for the 2009-2012 Collective Agreement would assist in addressing the high rate of absenteeism within the Correctional Bargaining Unit for each year if the Absenteeism Target was met in the respective year.

17. In 2009, Correctional Officers and Youth Service Workers met the absenteeism target set out in COR 15.1(a) and COR 18.1(a).

18. The Employer paid every Regular Correctional Officer and Regular Youth Services Officer 2% of his or her straight time hourly rate as of December 31, 2009 for all hours worked form March 12, 2009 to December 31, 2009.

19. The Employer did not pay the Absenteeism Target Incentive for any hours that the employee was on leave. This includes any WSIB leave, STSP leave, LTIP leave, maternity/parental leave, union leave, or bereavement leave.

20. The Employer did not pay the Absenteeism Target Incentive for any hours spent on acting assignments outside of the Correctional Bargaining Unit.

21. The Employer did not pay the Absenteeism Target Incentive for any hours worked by Fixed-Term Correctional Officers and Youth Services Officers.

2It is common ground between the parties that regular Correctional Officers and Youth Services Officers qualify for the Absenteeism Target Incentive based on the collective attendance of the employees as a group, ranging from 2% to 5% depending on the absenteeism target met, but that the amount received by an individual employee is based on that individual’s “hours worked” during the specified time period, within the meaning of Appendix COR 7. Their dispute centres on whether time off work while on approved leave, or acting assignment, should be included in the calculation of “hours worked”.

3The Attendance Target Incentive payment, as noted in the agreed facts, was part of a more comprehensive program to reduce absenteeism. The parties also agreed to changes to the overtime provisions in COR 8.2.3A as follows:

Upon the failure to meet the target in any given year pursuant to Article COR 15.1, COR 8.2.3 will not apply and the following shall apply. In this article, “overtime” means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a schedule day(s) off, calculated over a period of two (2) pay period by reducing total overtime hours worked during such period by the sum of scheduled hours less hours worked.

4They also agreed, in Appendix COR 13 to a new Joint Attendance Strategy and Implementation Committee, with the “joint objective of establishing and maintaining a consistent level of improved attendance.” The Committee is to review attendance and evaluate the new program.

POSITIONS OF THE PARTIES

For the Union:

5The Union’s central argument is that the “lump sum payment” in Appendix COR 7 can only be viewed as a retroactive wage increase for the year. The incentive payment, the Union submits, effectively increased the employees’ actual wage rate by 2% in 2009.

6In support, the Union points to Article COR-6, Shift Premiums, which provides for a $1.00 per hour premium for certain hours of work and specifically states, in COR 6.3, that the shift premium “shall not be considered as part of the basic hourly rate.” No similar language is found in Appendix COR-7, which implies that the 2% incentive is included in the basic hourly rate.

7The Union also relies on the definition of “wages” found in Part I of the Employment Standards Act. It defines “wages” to mean “monetary remuneration payable by an employer to an employee under the terms of an employment contract” but does not include “any sums paid as…bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency.” The Absenteeism Target Incentive, the Union submits, is not dependent on the Employer’s discretion – it is mandatory if the absenteeism target is met - and is related to hours and efficiency; it therefore is part of the employees’ “wages.”

8It further relies on Part XVIII, Reprisal, which states in Section 74 that “[n]o employer…shall…penalize an employee” who “is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV…” Leaves under Part XIV include maternity and parental leave, among others. The Union contends that by failing to include the 2% wage increase for the time that an employee is away from work on such leaves effectively “penalizes” them for taking the leave. Had they remained at work they would have been paid the 2% but by availing themselves on the statutory leave, they do not. In the Union’s view, this creates an economic disincentive to an employee which can be, depending on the length of the leave, substantial. In support, the Union relies on Re Fleetwood Canadian Ltd. and U.N.I.T.E., H.E.R.E, Local 1381 (2005), 2005 CanLII 94082 (ON LA), 138 L.A.C. (4th) 194 (Knopf).

9The Union also contends that the Employer’s failure to pay the 2% is a violation of Article 50.3.2, which states that employees, under the Supplementary Unemployment Benefit Plan are to receive “payments equivalent to ninety-three percent (93%) of the actual weekly rate of pay for her classified” for the first two weeks of pregnancy leave. By excluding the hours an employee is on maternity or parental leave, the Union asserts that the Employer is paying employees 91%, which violates the collective agreement.

10In regard to Union leaves, it submits that Article 3 of the collective agreement prohibits discrimination on the basis of Union activity or membership. It notes that the collective agreement provides varying entitlements depending on the type of union leave – some with no loss of pay, some without pay – but all “without loss of credits.” This means, the Union submits, that employees while on those leaves are credited as if they were working during the leave. They are not penalized in terms of vacation credits, sick credits, service or seniority. Re OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB 2875/96 (Dissanayake). In the Union’s submission, the “without loss of credits” language compels the conclusion that their time while on leave should also be counted for the 2% Absenteeism Target Incentive.

11The Union submits that this is even clearer with respect to Union leaves that are “with no loss of pay.” Given that the 2% is an effective increase in the wage rate, by failing to pay that 2%, the Employer is violating the collective agreement. It is, in effect, paying such employees 98% of their pay, not 100% as required.

12Finally, in regard to Article 23.2.1, union leave for collective bargaining, the agreement requires that employees “shall be paid as if the employee worked full time in the appropriate schedule (not to exceed eight (8) hours per day” during the days from Monday to Friday…” The Union submits that this language clearly indicates that the time away from work while on this leave must be regarded as if they “worked full time” for Appendix COR 7.

13The Union makes the same argument for bereavement leave, Article 48, which provides for up to three days leave “with pay” in the event of the death of certain relatives, as well as Special and Compassionate Leave under Article 49. In those provisions, the Employer agreed to pay 100% of the employee’s pay, not 98%. It submits that under these provisions, the employee is effectively deemed to be working and the time should be treated as time “worked” under Appendix COR 7.

14Likewise, for STSP (short term sick payments), employees are to receive 100% of their “regular pay” for the first six days of absence, and 75% of their “regular pay” thereafter for 130 days. By not including the 2%, the Employer is paying 98% and 73% respectively. The Union points to the conclusion of Vice Chair Dissanayake in Re OPSEU (Union), supra at p. 11, where he concluded that, in contrast to Go Temp employees, when an unclassified employee uses “an earned sick credit on a day of absence, they are deemed to be at work and are paid their wages as if they were at work.”

15The same approach, it submits, applies to employees on LTIP who are paid 66 2/3% of their “gross salary, at the date of disability, including any retroactive salary adjustment.” This includes, it asserts, the Absenteeism Target Incentive. Similarly, for employees off on WSIB, their salary is continued by the Employer for up to 30 days. Their “salary”, the Union submits, includes the extra 2%.

16In terms of acting assignments, the Union submits that the employees acting as OM-16s are actively working for the Employer, and should not lose out on the Absenteeism Target Incentive.

17Finally, the Union submits that certain types of leave may implicate the protections of the Ontario Human Rights Code – maternity leave, some STSP, some LTIP and WSIB (depending on whether the absence is caused by a disability). The Union recognizes the jurisprudence in this area based on Re Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital 1999 CanLII 3687 (ON CA), [1999] 42 O.R. (3d) 692 (Ont. C.A.), but asserts that clarification is still needed. It contends that exclusion of such leaves from the 2% creates a decided unfairness: “but for” the disability or pregnancy, the employee would be actively at work and receive the 2% payment.

For the Employer

18The Employer asserts that the Union’s basic premise – that the Absenteeism Target Incentive is a retroactive wage increase – is wrong and cannot be supported by the language of Appendix COR 7. It submits that the agreement clearly establishes that the incentive is a “lump sum payment”, not a “wage” increase. It points out that this Board has already concluded that issue in an earlier decision, Re OPSEU (Union Grievance) and Ministry of Government Service, GSB No. 2010-0405 (Abramsky, May 10, 2011).

19The Employer submits that under generally accepted principles of contract interpretation, the Union’s contention that the lump sum payment is a retroactive wage increase and must be paid for hours “not” worked cannot be sustained. It submits that the role of an arbitrator in a contract interpretation case is to determine the intention of the parties, based on the language they used, that the ordinary meaning of the language must be given effect, that clear language is required to confer a monetary benefit, and that the purpose of the provision must guide its interpretation. In support, it cites to the following authorities, Brown and Beatty, Canadian Labour Arbitration, pars., 4:2000 and 4:2100; Re Brandon General Hospital and Brandon Nurses Local 4 (1996), 1996 CanLII 20249 (MB LA), 56 L.A.C. (4th) 174 (J. Chapman); Re AMAPCEO (Union Grievance) and Ministry of Government Services, GSB No. 2004-0050(Nairn, Nov. 4, 2005); Re OPSEU (Union), supra.

20The Employer argues that what the parties did during the 2009 bargaining was develop a “carrot and stick” plan to address employee absenteeism. If the absenteeism target collectively was achieved, the employees would be paid a “carrot” – a lump sum bonus (the % of which depended on the target met, from 2% to 5%), paid to employees, individually, for their actual “hours worked.” If the targets are not met, there is a “stick” - changes to the overtime provisions. The goal, the Employer asserts, was to reduce absenteeism by rewarding employees who attend at work, which is why the provision pays the incentive to employees for “all hours worked.”

21The Employer submits that “hours worked” means just that – hours worked, not “deemed” work. Nor does it mean “hours paid.” In support it cites to Re Brookfield Foods Ltd. and Bakery, Confectionery & Tobacco Workers’ International Union, Local 446 (1987), 1987 CanLII 8809 (NS LA), 28 L.A.C. (3d) 1(Outhouse); Re Lundy Steel Ltd. and United Steelworkers, Local 4140(1975), 1975 CanLII 2143 (ON LA), 9 L.A.C. (2d) 105 (H.D. Brown); Re Sudbury General Workers, Local 101 and M. Loeb Ltd. (1963), 1963 CanLII 1013 (ON LA), 14 L.A.C. 97(Little); Re Brewers’ Warehousing Provincial Board and Brewers’ Warehousing Co. Ltd. (1957), 8 L.A.C. 35 (McCombs).

22Similarly, the Employer submits that the parties agreed to a “lump sum payment”, not a wage increase. They did not negotiate a 2% increase in the wage rate, or a 2% increase to annual pay in Appendix COR 7. If they had, the agreement would so state.

23The Employer asserts that clear language is required if a financial benefit is to be found in the collective agreement. It contends that there is no clear language conferring the Attendance Target Incentive for hours “not” worked. On the contrary, the benefit is limited to actual “hours worked” and to rule otherwise would effectively turn the agreement on its head and defeat the goal of rewarding actual attendance at work. In support, it cites to Re OPSEU (Schmidt) and Ministry of Community Safety and Correctional Services, GSB No. 2000-0983 (Petryshen, March 20, 2006); Re OPSEU (Gray et al.) and Ministry of Community Safety and Correctional Services), GSB No. 2005-2333 (Fisher, Nov. 14, 2011); Re OPSEU (Vitorino et al.) and Ministry of Government Services, GSB No. 2009-1293(Abramsky, Nov. 18, 2010); Re Wexford Inc. and Canadian Union of Public Employees, Local 3791 (Education Leave Grievance) (2001), 2001 CanLII 33933 (ON LA), 96 L.A.C. (4th) 153 (Albertyn); Re Cardinal Transportation B.C. Inc. and Canadian Union of Public Employees, Local 561 (1997), 82 L.A.C. (4th) 230 (Devine); Re Coast Hotels Ltd. and Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40 (1995), 1995 CanLII 18389 (BC LA), 50 L.A.C. (4th) 1(Chertkow)

24Instead, the Employer agreed to pay the bonus for “all hours worked.” Hours worked, the Employer submits, when interpreted in an ordinary and normal manner in regard to premium payments, means hours actually worked. It cannot mean the opposite, especially when considered in context – a plan to reduce absenteeism. To so rule, the Employer argues, would change the collective agreement, which arbitrators are not permitted to do under Article 22.14.6 of the parties’ agreement.

25The Employer argues that acceptance of the Union’s interpretation would make the “stick” part of the plan to reduce absenteeism – the potential change to overtime – redundant and meaningless. The overtime provision reduces overtime pay for scheduled hours not worked in a two week period. Thus, the Employer submits that the Union is asking that time scheduled, but not worked, be counted as time “worked” for the Absenteeism Target Incentive” even though the parties agreed to discount such time for overtime purposes – if the target was not met.

26The Employer further asserts that the Union’s interpretation that the lump sum incentive payment is, in reality a wage increase, would lead to unintended and significant financial consequences – essentially requiring the Employer to pay another 2% for STSP, LTIP, WSIB, all leaves with pay, pension payments, termination payments and so forth. Administratively it would create havoc where a maternity or parental leave, or sickness or disability leave crosses the calendar year, which would require a readjustment to the calculation. Re Health Employers Association of British Columbia and Hospital Employees’ Union [2002] B.C.C.A.A.A. No. 13) (J. Gordon)

27It further submits that it would be absurd for the Employer to pay an attendance bonus to employees for hours not worked. This especially true, it submits, in relation to STSP absences. If included, the Employer would be paying employees a bonus for not attending work, when the goal of the bonus payment is to reward attendance. It also contends that rewarding employees for hours actually worked is not improper or uncommon. It does so in shift premiums, overtime, holiday payments, and the case law supports limiting such payments to actual work. Re Western Concord Manufacturing (New West) Ltd. and Communications, Energy and Paper Workers Union of Canada, Local 601 (Juettner Grievance) [2003] B.C.C.A.A.A. No. 321 (Dorsey); Re Cambridge Memorial Hospital and Ontario Nurses’ Association (Lump Sum Payment Grievance) [2010] O.L.A.A. No. 482 (Burkett).

28In terms of the language relied on by the Union in regard to the various leave provisions, the Employer asserts that there is nothing in those provisions that overrides the clear method of calculation that requires that hours be “worked.” It submits that the Union’s argument is premised on the faulty view that the payment is a wage increase, not a one-time lump sum payment.

29The Employer also submits that there is no “reprisal” under the Employment Standards Act to prorate an attendance payment based on hours worked, citing the Employment Standards Act 2000: Policy & Interpretation Manual, regarding “Perfect Attendance Bonuses”. The Manual distinguishes between disqualification which “would likely be found to a penalty” and the proration of the bonus, which is permissible. The Employer points out that Appendix COR 7 does not disqualify an employee for the bonus; it prorates it based on hours worked. This, it submits, distinguishes the decision of Arbitrator Knopf in Re Fleetwood Canada Ltd., supra, relied on by the Union.

30The Employer further submits that the Employment Standards Act does not require an employer to pay wages while an employee is on leave. Rather, it protects the wage rate upon the employee’s return to work. Re AMAPCEO (Union Grievance) and Management Board Secretariat), GSB No. 2002-2235 (Briggs, Feb. 23, 2004); Re TRG Customer Solutions Inc. and Aimerance Kabongo[2010] OLRB Rep. Jan/Feb 190 (Kelly, Vice-Chair).

31Finally, the Employer asserts that excluding time away from work on leaves – whether STSP, LTIP, WSIB or other leaves – due to disability or other basis protected under the Ontario Human Rights Code – does not constitute unlawful discrimination. The case law recognizes, it suggests, that a work driven benefit may be tied to work, citing Re Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital [1999] O.R. (3d) 692 (Ont. C.A.); Re Messier-Dowty Inc. and I.A.M.A.W., Local 905 (Kingston Grievance (1999), 1999 CanLII 35842 (ON LA), 80 L.A.C. (4th) 87 (Knopf); Re Canadian National Railway Co. and U.T.U. (1999), 1999 CanLII 35850 (CA LA), 82 L.A.C. (4th) 88 (M. Picher); OPSEU and George Brown College (Richmond Grievance), [2002] O.L.A.A. No. 377 (Mitchnick); Re OLBEU ( Pound) and Ontario Liquor Control Board, GSB No. 3278/92 (Briggs); Re OPSEU (Donoghue) and Ministry of Transportation, GSB No. 0725/95 (Brown); Re OPSEU (McNally) and Ministry of Transportation, GSB No. 2000-0306 (Brown); Re OPSEU (Eveleigh) and Liquor Control Board of Ontario, GSB No. 2008-2134 (Gray); Re Domtar Inc. and C.E.P.U. of Canada, Local 31-X (2005), 2005 CanLII 41378 (ON SCDC), 145 L.A.C. (4th) 129 (Ont. S.C.J.); Re Pharma Plus Drugmarts Ltd. and U.F.C.W., Local 175 (Crannie Grievance) [2001] O.L.A.A. No. 362 (Slotnick); Re St. Clair Technologies Inc. and U.A.W., Local 251 (2002), 2002 CanLII 79056 (ON LA), 114 L.A.C. (4th) 97 (Williamson); Re Real Canadian Superstore and U.F.C.W., Local 1400 1999 SKQB 196, [1999] S.J. No. 777 (Sask C.Q.B.)

REASONS FOR DECISION

32Having carefully considered the facts, the language of the collective agreement and the arguments and submissions of the parties, I conclude that the Appendix COR 7 cannot be read to include hours away from work while on leaves or secondments.

33As noted in many arbitral decisions, as well as Brown and Beatty, Canadian Labour Arbitration, at par. 4:2100, the object of construing a provision in a collective agreement is “to discover the intention of the parties who agreed to it.” It continues:

[I]n 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.

In this case, the words used by the parties in Appendix COR 7 are clear and unambiguous. The parties agreed to provide a “lump sum payment” – not a wage increase, or an increase in salary – if certain attendance targets were met.

34In Re OPSEU (Union), supra, an earlier decision involving this same grievance, the Union argued that the incentive payment had to be paid to fixed-term Correctional Officers and Youth Service Officers. It argued, in part, that the Employer was required to pay the incentive payment because the payment was “tantamount to an increase in the regular employees’ wage rate to which the fixed term employees are entitled.” Under Article 31A.2.1, fixed term employees are to be paid the equivalent of what the regular service is paid. At par. 9, I concluded as follows:

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 COR 7, 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.

I reach the same conclusion here.

35The parties here are very knowledgeable and sophisticated bargainers. They know how to negotiate a wage increase – and indeed they did so in the 2009-2012 collective agreement. The wage rate for Correctional Officers and Youth Service Workers, as set out at pp. 482 and 485 of the collective agreement, increased on January 1, 2009, January 1, 2010, January 11, 2011 and again, on January 1, 2012. The parties did not, in Appendix COR 7, agree to an additional retroactive 2% (or more) increase to the wage rate. They agreed to “provide a lump sum payment” based on a percentage “of the employee’s straight time hourly rate as of December 31, 2009.”That is a “one-time payment, paid if the absenteeism target is met.”

36Much of the Union’s argument is tied to its view that the lump sum payment is, in reality, a retroactive wage increase of 2%. It is on that basis that it argues that the Employer’s failure to pay the 2% to employees on various leaves – maternity, parental, certain union leaves, STSP, bereavement, and LTIP – short changes them by 2%. Their basic “pay” or “wage rate”, however, does not include premium payments, nor does it include the Absenteeism Incentive Payment. Again, had the parties wanted to include such payments, they could easily have done so.

37The case law, as cited in some of the numerous cases relied on by the Employer, is clear that payment of a monetary benefit to an employee must be based on “clear and unequivocal terms.” E.g., Re OPSEU (Vitorino et al.), supra; Re Cardinal Transportation, supra; Re Coast Hotel, supra. The Absenteeism Incentive Bonus, at 2% of all hours worked, can be a significant monetary benefit. The language here is clear – it is a lump sum payment, not a retroactive wage increase.

38Appendix COR 7 is also clear that the calculation of an individual’s absenteeism incentive payment is based on “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.” The calculation is personal to the employee – based on his or her straight time hourly rate and “all hours worked” in the specified period. The parties chose the words “all hours worked.” They did not choose “all hours paid”, or “all hours deemed to have worked”, which would arguably include time on paid leaves, vacation, statutory holidays and so forth. Re Cambridge Memorial Hospital and Ontario Nurses’ Association (Lump Sum Payment Grievance), supra at par. 10.

39In Re Brookfield Foods Ltd., supra, the issue was whether paid sick time was “hours worked” for the purposes of overtime calculation. As a matter of interpretation, the arbitrator ruled at par. 15 that “the expression ‘hours worked’ does not include paid sick leave or, for that matter, statutory holidays.” He continued, at par. 16: “[W]hile the question was once a subject of debate, it is now well settled that ‘hours worked’ and similar expressions denote hours actually worked and do not include paid sick leave or statutory holidays. Simply put, ‘hours worked’ and ‘hours paid’ are not equivalent expressions.”

40In the case of Re OPSEU (Schmidt et al.) and Ministry of Community Safety and Correctional Services, supra, the Board was dealing with the same issue of whether a sick day, for which the employee used a sick credit, should be counted as hours worked in relation to overtime. The Board held, at p. 11 that “explicit language” is required if the parties “intended that the payment for a shift not worked meant that an employee is deemed to have worked the shift.” The Board found no such language, stating: “If the parties had intended that the use of an attendance credit turned a day of absence into a day worked, it would have been easy enough to express such an intention clearly.” The “absence of clearer language in these circumstances is telling.” Likewise, here, there is no language that explicitly states that hours paid, or while on approved leave, is a day “worked” under Appendix COR 7.

41The only possible exception to this is Article 23.2.1, where union members of the collective bargaining team are to be “paid as if the employee worked full time in the appropriate schedule…” But that provision, like other leave provisions with “no loss of pay”, does not include premium payments, such as the Absenteeism Incentive Payment, which are tied to actual work.

42The Absenteeism Incentive Payment clearly is “work driven” – the more hours an employee attends at work, the more hours for which s/he receives the incentive payment. The decision by Vice-Chair Briggs in Re AMAPCEO (Union Grievance) and Management Board Secretariat, supra, is analogous. That case involved whether employees who had earned the maximum salary for at least twelve months should receive a full annually applied bonus for performance or whether the bonus should be prorated taking into account the period of pregnancy and parental leave. She concluded that it should be prorated because performance pay was tied to attendance at work. At page 21 she stated:

A bonus that is awarded for performance requires attendance in the workplace. Absent employees cannot be rewarded for a full year’s performance irrespective of whether their absence resulted from a pregnancy leave or due to another type of leave. Pay for Performance, is, in the words of Arbitrator Burkett, a “work driven” bonus. Therefore, the prorating of the Pay for Performance is not discriminatory.

Finally, a consideration of this matter based on a purely pragmatic and simple approach buttresses my view. In order to be paid a bonus for performance, ongoing performance of work is necessary. It makes no sense that an employee would be rewarded for twelve months of satisfactory or superior performance if they had actually been at work for only two months of that year. Once cannot be rewarded with a bonus for work not performed irrespective of the reasons for the absence from the workplace….

The same is clearly true of an attendance bonus. A bonus for attendance at the workplace requires attendance at work. It is tied to actual “hours worked”, not to “hours paid.” One simply cannot be rewarded with a bonus for attendance when not attending at work.

43In light of the purpose of Appendix COR 7, which is to reduce the incidence of and costs associated with absenteeism among regular Correctional Officers and Youth Service Officers, it makes sense to reward employees for their actual attendance at work. To include time not at work, though paid in whole or in part - for which the Employer has to pay another employee to backfill – undermines that purpose. This is especially so in regard to STSP absences – the exact thing that Appendix COR 7 is designed to address. To include it would, in effect, require the Employer to pay the attendance bonus for hours “not” worked. Although clearest for absences under STSP, the same is true for absences due to other leaves, or secondments. The goal is to reward attendance and it is based on “hours worked”, regardless of the reason for the absence. Re Western Concord Manufacturing (New West) Ltd., supra.

44The parties, in collective bargaining, were trying to deal with a very serious absenteeism problem – an average absenteeism rate of 32.5 days among the Correctional Officers. Together, the parties developed quite a bold, creative, and multi-faceted approach – a “carrot” (the Absenteeism Incentive Payment) if the attendance targets were met, a “stick” – the revisions to the overtime provisions if the targets were not met, a revised Attendance Management Program and a Joint Committee to review attendance and the new program. The clear goal was to improve attendance and reduce the costs associated with absenteeism. When the purpose of these provisions are considered, it supports the conclusion that the incentive payment is based on hours actually worked as a reward for actual attendance.

45In terms of secondments, particularly to OM-16 positions, the employee is “working” but they are not working as Correctional Officers. They are working and paid as OM-16s. Consequently they are not entitled to benefits negotiated for Correctional Officers for the hours they worked as OM-16s. As stated in Re OPSEU (Cartwright) and Ministry of Community Safety and Correctional Services, GSB No. 2002-1457 (Abramsky, Oct. 11, 2005), at par. 30:

Essentially, when the grievors were temporarily assigned to acting operational manager positions, they were not working as CO2s, and were not entitled to receive the negotiated wage increases for CO2 work under Article COR 16. Even though the collective agreement continued to apply to them, they were not entitled to benefit from the provision since they did not perform CO2 work.

Further, as found at par. 33, when the employees returned to their home position, they get the benefit of the negotiated increase but were not entitled to retroactive payments for the time period that they worked in the acting position. The employee’s “pay is tied to the classification of the work they are performing.” The same is true in this situation.

46I also conclude that the Employer’s decision to exclude the time employees are away from work on maternity or parental leave does not constitute a “reprisal” under the Employment Standards Act. Unlike the situation in Re Fleetwood Canada Ltd., supra, where an employee was disqualified from the attendance bonus if they used an Emergency Leave day, employees who take maternity or parental leave are not disqualified. Their entitlement is prorated based on their hours worked, which approach is approved in the Employment Standard Act 2000: Policy & Interpretation Manual. While not a binding document, that approach is consistent with the arbitral jurisprudence which ties a “work driven” benefit to work and an attendance bonus to actual attendance.

47In Re Fleetwood Canada Ltd. supra at par. 28, the arbitrator determined that a “penalty” under Section 74 of the Employment Standards Act “is deemed to be imposed when a right, privilege or benefit is removed as a result of accessing leaves available under the Act.” The disqualification for accessing an Emergency Leave day was therefore a “penalty.” She contrasted that situation with a proration approach. As the arbitrator stated at pars. 25-26:

[W]hat we are dealing with is the loss of a right to participate in the Bonus Plan that is being improperly removed by the Employer simply because an Emergency Leave Day has been taken. However, this is not a claim for time not worked. The claim is simply that an employee be continued to be considered eligible for the bonus and that the bonus be calculated as a percentage of the hours actually worked. ….

If the Employer’s argument were to prevail in this case, the effect would be that an employee’s accessing their statutory right to Emergency Leave Days would have their eligibility for the bonus removed. As As such, they would be penalized for the exercise of their statutory right. The Act does not allow this.

48In this case, employees who access maternity or parental leave are not disqualified from the Absenteeism Incentive Payment. The hours they are away from work while on such leaves do not count toward the calculation of their payment, but that is not a “penalty.” To include such time, moreover, would pay them a bonus for time not worked.

49Finally, the exclusion of time away from work on leaves that might be based on a disability (potentially STSP, LTIP, WSIB) or a protected basis (maternity leave) is not a violation of the Ontario Human Rights Code. It is well-established in the judicial and arbitral jurisprudence that a “work driven” benefit may be based on hours worked, and an employer does not discriminate against an employee when it withholds a work-driven benefit from an employee who is absent due to maternity, paternity, illness or another protected category. In Re Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA), [1999], 42 O.R. (3d) 692 (Ont. CA), at par. 58, it was recognized that “[r]equiring work in exchange for compensation is a reasonable and bona fide requirement.” Re OPSEU (Lucan Grievance) and Ministry of Community and Correctional Services, GSB No. 2003-0167 (Abramsky); Re Real Canadian Superstore and U.F.C.W., Local 14001999 SKQB 196, [1999], 182 D.L.R. (4th) 223 (Sask. Q.B) This is so even though “but for” the employee’s disability or pregnancy, they would be actively at work. The Union does not argue otherwise.

Conclusion:

50For all of the reason above, the Employer did not violate Appendix COR 7.