GSB#2011-2144
UNION#2010-0290-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Harris et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Tim Mulhall Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Karen Martin Ministry of Government Services Centre for Employee Relations Employee Relations Advisor
CONFERENCE CALL
June 19, 2012.
Decision
1On November 8, 2011, the parties negotiated a Memorandum of Settlement that included the following provisions:
Whereas the parties wish to resolve the matters raised in OPSEU Grievance
2010-0290-0023 Harris et al
Now therefore the parties agree to the full and final settlement of the above-noted grievance without precedent and without prejudice to any future and/or similar matter(s), on the following terms:
The parties agree that the YSO officers listed in Appendix A of this Agreement will be considered Regular employees effective August 16, 2010.
These employees listed in Appendix A will be credited with 40 hour work weeks for the purposes of Pay and Seniority back to the effective date of August 16, 2010.
In terms of all other benefits, vacation entitlements, Statutory Holiday pay the grievors will have a choice to be provided with these entitlements and pay back to the employer all in lieu payments received since the appointment to Regular service (August 16, 2010) or sign the attached Appendix C waiving these entitlements and any other retroactive Collective Agreement entitlements except those listed in Paragraph 2 up until their start date of November 28, 2011.
2It was also agreed that I would remain seized of any implementation issues that arose from the terms of the Memorandum.
3Two issues have arisen since the signing of this agreement. It was agreed that the two disputes would be argued by way of conference call on June 19, 2012 and that a short “bottom-line” decision should be issued.
4The first dispute was a claim from the grievors that they are entitled to the Attendance Bonus in accordance with Appendix COR 7 of the Collective Agreement. Mr. Mulhall, on behalf of the Union argued that the grievors should have been treated as regular employees for all purposes and this would include payment of the attendance bonus.
5Ms. Martin, for the Employer, took issue with the Union’s view and noted that it was been determined by the Board in Re The Crown in Right of Ontario (Ministry of Government Services) & OPSEU GSB #2010-0405 (Abramsky) that the Attendance Bonus is to be paid on the basis of hours worked and not hours paid. That renders these grievors ineligible for the payment.
6Appendix COR7 states, at Article 15(c):
In the third year of the collective agreement:
i. 2% of the employee’s straight time hourly rate as of December 31st, 2011, for all hours worked in the period of January, 1, 2011 to December 31, 2011, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(c) and COR 18 (c); or
ii. 3% of the employee’s straight time hourly rate as of December 31, 2011, for all hours worked in the period of January 1, 2011 to December 31, 2011, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(d) and COR 18.1 (d).
7I agree with the Employer on this issue. The grievors were credited with 40 hours per week for the purposes of pay and seniority retroactively back to August 16, 2011. However, the parties did not agree that the grievors would be treated, for all purposes, as if they worked 40 hours per week since August 16, 2011.
8In her decision referred to above, Vice Chair Abramsky commented that these parties are sophisticated bargainers and had they meant for the absenteeism bonus be paid for all hours worked or “all hours deemed worked” they could have and would have said so. They did not. Rather, they said that the bonus would be paid on the basis of hours worked and accordingly non-worked hours are not included in the calculation of the absenteeism bonus. I agree with her decision and it applies equally in this case.
9The second issue raised is whether the grievors are entitled to be paid for forty hours each week effective August 16, 2011. The Employer argued that in some cases the grievors did not actually work forty hours. To pay them for forty hours when they did not work a full week would constitute a windfall.
10It was said by Ms. Martin that remediating grievances is usually done on the basis of making the grievors whole. In this instance the benefit of paying grievors for forty hours per week will actually provide a greater benefit for some if not all of the grievors. Some of the grievors took time off and now will be paid for that time. This could not have been the result anticipated by the parties.
11Finally, Ms. Martin said that if any grievor was disciplined by way of suspension it would be particularly inappropriate to now pay them for that time.
12The Union’s view of the issue generally was that the Memorandum is clear and unambiguous. It unequivocally states that grievors will be credited with forty hours for the purposes of pay and seniority. The Employer is attempting to change the terms of this agreement.
13Mr. Mulhall conceded that in the event that a grievor was suspended without pay, the period of suspension should not now be paid. To be clear, it was agreed that any period of unpaid suspension would now be altered as the result of this Memorandum of Agreement.
14After considering the submissions I am of the view that the Union’s position regarding this second issue must prevail. The language used by the parties in paragraph 2 of the Memorandum is clear. There are no qualifications or restrictions set out. The parties agreed that all grievors are to be credited with forty hours for the purposes of pay and seniority. The Memorandum does not say they will be so credited only in the event that they worked forty hours. Further, nothing in paragraph 3 of the Memorandum would lead me to find for the Employer regarding this issue. Paragraph 3 does not qualify or alter the terms set out in Paragraph 2.
15Accordingly, with the exception of any hours missed due to a disciplinary suspension, the grievors are to be paid the difference between what they were actually paid and forty hours for each week retroactive to August 16, 2010.
16I remain seized in the event of further implementation issues.
Dated at Toronto this 26th day of June 2012.