GSB#2011-0714
Union#G-20-11
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587 (Union)
Union
- and -
The Crown in Right of Ontario (Metrolinx - GO Transit)
Employer
BEFORE
Barry Fisher
Vice-Chair
FOR THE UNION
Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel
FOR THE EMPLOYER
Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel
HEARING
March 12, 2012.
Decision
1This case involves the issue of accrual of vacation credits to employees who are on WSIB. In particular the parties agree that vacation credits accrue in months 1 to 3 and do not accrue after 9 months. The dispute relates to whether or not vacation credits accrue during the months 4 to 9 when an employee is on WSIB.
The relevant provisions of the Collective Agreement are as follows:
Article 7: Seniority
7.1(1) Important Dates
The following dates may apply in any combination thereof to permanent full-time and permanent employees covered by this agreement unless mutually agreed otherwise or as stipulated in the Article which covers the subject.
7.1(8): Vacation Entitlement Adjusted Date
All permanent employees are entitled to vacation credits in respect of a month or part thereof, in which they are at work or on leave of absence with pay.
However, the vacation entitlement date may be adjusted (retarded) due to any or multiples of the following:
(b) after the first nine (9) months that the employee receives benefits under the Workplace Safety and Insurance Act, then such days after the nine (9) months will be used to adjust the date.
Article 32 Vacation Entitlement
32.1 For the purposes of this Article, a permanent employee is entitled to vacation credits in respect of each calendar month of employment or part thereof in which he is at work, or on a leave of absence with pay.
32.2 For the purpose of this Article, continuous service shall not include:
- After the first nine (9) months that he is receiving benefits pursuant to an award under the Workplace and Safety Insurance Act.
32.3 An employee shall earn vacation credits computed on the following basis according to the individual employee’s length of continuous service as of his anniversary date:
(b) An employee who reaches eight (8) years of continuous service on his anniversary date shall be entitled to an annual vacation of up to four (4) weeks computed on the basis of thirteen and on-third (13 1/3) hours for each calendar month or part thereof.
Article B1.0 Benefits
B10.01 Where an employee is absent by reason of an injury or an industrial disease for which a claim is made under the Workplace Safety and Insurance Act and is supported by an acceptable medical certificate (Article B6) then the Employee’s age at the Workplace Safety and Insurance Act rate shall continue to be paid by the Employer for a period not exceeding three (3) consecutive months, or a total of sixty-five (65) working days where such absences are intermittent. Any absence in respect of such substantiated injury or industrial disease shall not be charged against his vacation credits.
There are two concepts at play here:
Continuous Service: This concept determines simply the amount of seniority that you need to move up to the next vacation entitlement and how much you accrue at that time. Thus where an employee moves from the 14th to the 15th year of continuous employment, he or she is entitled to 5 weeks vacation instead of 4 weeks. In other words a 9 year employee earns vacation credits at the rate of 13 1/3 hours per month while a 26 year employee would earn 20 hours vacation credit per month.
Vacation Credits determines how many vacation hours you actually have in your vacation bank.
2The Employers’ argument is that to qualify for vacation pay credits you must be either working or on a leave of absence with pay (Article 7.1(8) and 32.1). For the first three months of WSIB, because Article B10.01 requires the Employer to make the payment directly, you are on a leave of absence with pay. However after the first three months, as you are being paid directly by someone other than the Employer (WSIB) you are no longer on a leave of absence with pay and therefore are not entitled to earn vacation credits. However because of 7.1(8) (b) and 32.2(4) your Continuous Service is not adversely affected until after you have been on WSIB for more than 9 months.
3The Union’s argument is that the fact that both Articles 7.1(8) (b) and 32.1(4) refer to a disentitlement after 9 months on WSIB must logically mean that where an employee is on WSIB for less than 9 months, the employee is entitled to earn vacation credits for that period.
4The parties agree that the consistent past practice of the parties has been to administer this issue as set out in the Employer’s argument, which is that an employee on WSIB does not accrue vacation credits after month 3 but does accrue Continuous Service up to month 9.
5I find the Employer’s argument more persuasive for the following reasons:
- The parties have chosen to negotiate a rather complex vacation pay system which distinguishes between Continuous Service dates and vacation credit dates. Along the way they also use the terms “Vacation Entitlement Date” and “Vacation Entitlement Adjusted Date”.
It is therefore difficult at times to distinguish between when the Collective Agreement is referring to the concept of how many vacation hours you earn when you are working (aka “ Continuous Service) and how do you put actual hours in your vacation bank ( aka “ Vacation Credits”).
However both Articles 7.1(8) and 32.1 make it clear that you only earn vacation credits in a specific month if you actually work any time during that month or you are on a paid leave of absence. From month 4 to 9 an employee on WSIB is being paid by WSIB, not the Employer, and thus they are not on a leave of absence and thus they do not earn vacation credits for that month. They do however continue to accrue Continuous Service because that is what Articles 7.1(8) and 32.1 says.
- The consistent past practice is also a factor in favour of the Employer’s argument. The parties know best how to administer their own Collective Agreement, and if one of them wants to change a long-standing and open practice or interpretation, then that should be the subject of collective bargaining.
6The Union has also raised a human rights argument. They argue that it is discriminatory to treat people on WSIB differently based on the length of time that they are on WSIB. Under this agreement, an employee who is on WSIB for 2 months is treated differently than an employee who is on WSIB for 5 months. However all the cases cited by the Union dealt with different benefits for people with different types of disabilities, not people with different periods of disability.
7However the Employer points out that it is not discriminatory to provide different financial benefits to persons on WSIB for different times because these are not two different groups of people, they are one group, namely people on WSIB. Each group gets the same benefit, which is vacation credit accrual for only 3 months.
8In any event, if the Union’s position was correct then there would be a number of other discriminatory features of this agreement, just in respect to WSIB. For instance, employees on WSIB for more than 9 months are treated differently than those on for less than 9 months, in that the former group loses their entitlement to accrue Continuous Service. Moreover, with the new provisions of the Collective Agreement, employees receive 100% of their wages for the first three months on WSIB, but the payment is reduced once they are on WSIB more than 3 months.
9The real comparator is between employees who are working and those who are not. The case of Ontario Nurses’ Association v Orillia Soldiers Memorial Hospital 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 makes it clear that it is not discriminatory to differentiate on compensation items as between working employees and non working employees who are off due to illness. Thus the comparator to the employee on WSIB for 5 months is the employee who is working. It is not discriminatory to provide different compensation to those who are working as opposed to those who are not working due to illness.
10I note that the Union did not argue that persons off work for more than 3 months on WSIB were being treated differently than other employees off work for more than 3 months who were not on a paid leave of absence. I have therefore not compared this group to those other non-working groups.
11I agree with the Employer’s argument. The Orillia Memorial Hospital case is a complete answer to the Union’s argument.
12The grievance is therefore dismissed.
Dated at Toronto this 30th day of May 2012.