GSB#2018-3909

UNION# 2018-0378-0111

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Rockburn)

Union

• and -

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Alex Zamfir

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Adrienne Couto

Liquor Control Board of Ontario

Counsel

HEARING DATE

February 22, 2022

Decision

1This matter is a grievance filed by Ontario Public Service Employees Union (the “Union”) on behalf of Perry Rockburn who holds the position of permanent full-time Clerk Grade 3 in the Quality Assurance Department (“QA Clerk”). The grievance alleges that the Liquor Control Board of Ontario (the “Employer”) violated the terms of the collective agreement when it refused to consider Mr. Rockburn’s application in response to a job posting for the position of Logistics Operations Clerk Grade 3 (“Operations Clerk”). The collective agreement provides that logistics employees can only apply for positions for the purpose of promotion or demotion; a logistics employee cannot apply for a transfer. The Employer asserts the Operations Clerk position would be a transfer and hence, Mr. Rockburn was not eligible to apply. The Union argues the position of Operations Clerk would be a promotion. The issue arises as a result of a disagreement between the parties as to the meaning of the language in article 22.4(b)(i) of the collective agreement.

2The parties set out their agreement as to the facts in an Agreed Statement of Facts (“ASF”) and thus no oral evidence was called. Neither party argued that the language of the collective agreement is ambiguous and hence no extrinsic evidence, such as past practice or collective bargaining history, was relied upon by either party. The determination in this matter is made solely on the basis of the language set out in the collective agreement.

3The starting point is a Letter of Agreement Re: Post and Fill found at page 235 of the collective agreement (the “Post and Fill LOA”) under which the Operations Clerk position was posted by the Logistics Department. The Post and Fill LOA allows employees in the Logistics Department to apply only for the purposes of promotion or demotion and not for the purposes of a transfer.

4The term “promotion” is defined in Article 22.4(b) of the collective agreement as follows:

(b) For the purpose of Article 22.5(a), a promotion shall be deemed to include:

(i) the assignment of a permanent full-time employee to another permanent full-time position in a class with a higher maximum salary rate than the class of his/her former position; or

(ii) the assignment of a permanent part-time employee to a permanent full-time position if there was no permanent full-time employee eligible and qualified for the position; or

(iii) the assignment of a permanent part-time employee to another permanent part-time position with a higher weekly salary than his/her former position; or

(iv) the assignment of a casual to a permanent part-time position in accordance with the provisions of Article 32.4.

(v) in Logistics, the assignment of a seasonal employee to an entry level permanent full-time position.

[emphasis in bold added]

5According to article 22.4(b)(i), as a permanent full-time employee (“PFT”), a promotion for Mr. Rockburn is an assignment to another PFT position “in a class with a higher maximum salary rate.” It is here that the issue crystalizes. Nowhere in the collective agreement is “maximum salary rate” defined.

6The position of QA Clerk is in class 608 with maximum hourly earnings of $30.46 and maximum annual earnings of $57,614. The QA Clerk position works 36.25 hours a week. The following wage grid for classification 608 is set out in the collective agreement.

608

CLERK GRADE 3

36.25

(Annual Increases)

4/1/2017

Hourly

$26.40

$27.11

$27.82

$28.55

Annual

$49,935

$51,278

$52,621

$54,002

10/1/2017

Hourly

$26.53

$27.25

$27.96

$28.69

Annual

$50,181

$51,543

$52,886

$54,266

4/1/2018

Hourly

$26.80

$27.52

$28.24

$28.98

Annual

$50,691

$52,053

$53,415

$54,815

10/1/2018

Hourly

$27.07

$27.80

$28.52

$29.27

Annual

$51,202

$52,583

$53,945

$55,363

4/1/2019

Hourly

$27.34

$28.08

$28.81

$29.56

Annual

$51,713

$53,113

$54,493

$55,912

10/1/2019

Hourly

$27.61

$28.36

$29.10

$29.86

Annual

$52,224

$53,642

$55,042

$56,479

4/1/2020

Hourly

$27.89

$28.64

$29.39

$30.16

Annual

$52,753

$54,172

$55,590

$57,047

10/1/2020

Hourly

$28.17

$28.93

$29.68

$30.46

Annual

$53,283

$54,720

$56,139

$57,614

7The position of Operations Clerk is in classification 056 with the same maximum hourly earnings of $30.46, and, because the position works 37.5 hours a week, has maximum annual earnings of $59,600. The following wage grid for classification 056 is set out in the collective agreement.

056

CLERK GRADE 3 (Logistics Operations Clerks Only)

37.5

(Annual Increases)

4/1/2017

Hourly

$26.40

$27.11

$27.83

$28.55

Annual

$51,657

$53,046

$54,455

$55,864

10/1/2017

Hourly

$26.53

$27.25

$27.97

$28.69

Annual

$51,911

$53,320

$54,729

$56,138

4/1/2018

Hourly

$26.80

$27.52

$28.25

$28.98

Annual

$52,439

$53,848

$55,277

$56,705

10/1/2018

Hourly

$27.07

$27.80

$28.53

$29.27

Annual

$52,968

$54,396

$55,825

$57,273

4/1/2019

Hourly

$27.34

$28.08

$28.82

$29.56

Annual

$53,496

$54,944

$56,392

$57,840

10/1/2019

Hourly

$27.61

$28.36

$29.11

$29.86

Annual

$54,024

$55,492

$56,959

$58,427

4/1/2020

Hourly

$27.89

$28.64

$29.40

$30.16

Annual

$54,572

$56,040

$57,527

$59,014

10/1/2020

Hourly

$28.17

$28.93

$29.69

$30.46

Annual

$55,120

$56,607

$58,094

$59,60

Union Submissions

8The Union argues, the fact that the Operations Clerk position works 1.25 more hours each week, means, notwithstanding the Operation Clerk position has the same maximum hourly rate as the QC Clerk position, the Operations Clerk position has a “higher maximum salary rate.” As “promotion” is defined in article 22(4)(b)(i) as the assignment to a position in a class with a “higher maximum salary rate,” the move from the QC Clerk position to the Operations Clerk position is a promotion.

9The Union argues the objective is to determine the mutual intentions of the parties and the primary resource for doing so is the collective agreement itself. A harmonious interpretation is to be preferred rather than one that places provisions of the agreement in conflict. All words are to be given meaning and, where an agreement uses different words, it is to be presumed that the parties intended different meanings. Words should be given their plain and ordinary meaning. The Union submits the parties to this agreement are sophisticated and developed specific language as to what constitutes a promotion, and that language supports Mr. Rockburn.

10Anticipating the Employer’s argument that “higher maximum salary rate” is a reference to the maximum hourly rate, the Union points out that the term does make any reference to hourly.

11In order to ensure an interpretation that is harmonious with other provisions of the collective agreement, the Union argues that definitions of “weekly salary” and “annual salary,” that appear elsewhere in the collective agreement, should apply.

12The Union points to definitions contained within Article 36 entitled “ARTICLE 36 - Definitions – Permanent Part-Time Positions” and argues Article 22.4(b)(i) must be interpreted harmoniously. The Union relies on the following provisions of Article 36:

36.2 The “basic hourly rate” of pay for permanent part-time employees is the basic hourly rate for the class.

36.3 The “weekly salary” of a permanent part-time employee is the basic hourly rate times the applicable weekly hours of work.

36.4 “Weekly hours of work” shall be the average of the regularly scheduled weekly hours of a position calculated over a period of four (4) consecutive weeks.

36.5 “Annual salary” shall be the weekly salary multiplied by 52.17857.

13The Union notes that the “annual” amount, set out in the wage grids for classifications 608 and 056, was arrived at by multiplying the hourly amount by the number of hours the respective position works each week and then multiplying the result by 52.17857, the multiplier set out in article 36.5. The definition of “annual salary” set out in article 36.5 has thus been applied elsewhere in the collective agreement. The Union further submits that, adopting the above definition of “weekly salary” and “annual salary” the Operations Clerk position has a higher “weekly salary” and a higher “annual salary” than the QA Clerk position. Regardless of whether one considers the higher weekly or annual “salary” as defined in article 36, the Operations Clerk position has a “higher maximum salary” than the QA clerk position. The Union argues, in light of these definitions, to find that “salary” means “hourly wage rate” would be a distorted interpretation, resulting in “salary” having many meanings and, absent a clear indication that the parties intended the same word to have multiple meanings, such a conclusion is to be avoided.

14To accept the Employer’s argument, the Union submits, would effectively replace the word “salary” with “hourly” and amount to amending the collective agreement.

15The Union points to the use of the definition of “weekly overtime” in article 22.4(b)(iii) as a further demonstration of the definitions set out in article 36.5 being used throughout the collective agreement.

16The Union relies on article 22.10(c) to support its argument that, where the parties intended to compare hourly rates, they used the term “wage rate” and not “salary rate.” Article 22.10(c) deals with the demotion of a full-time retail store employee and specifies that they will receive the “wage rate” closest to, but not greater than, the employee’s current “wage rate.”

17The Union further relies on article 6.3 as a further example of the parties using the term “maximum salary” and not “wage rate.” Article 6.3 addresses job protection for employees identified as surplus. It provides as follows:

(a) Where an employee is identified as surplus, he/she shall be assigned on the basis of his/her seniority to a vacancy in his/her work area, provided he/ she is qualified to perform the work and the salary maximum of the vacancy is not greater than two percent (2%) above nor sixteen percent (16%) below the maximum salary of his/her class in the following sequence: a vacancy which is in the same class or position as the employee’s class or position; a vacancy in a class or position in which the employee has served since his/her appointment date; another vacancy.

(b) Where an employee is assigned under (a) above to a position in a class with a lower maximum salary than the maximum salary for the class of the position from which he/she was assigned, he/she shall continue to be entitled to salary progression in accordance with Article 22.1 to the maximum salary of the higher classification, including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the assignment takes effect.

18The Union argues the parties, who are very sophisticated, chose the words they used; the same words should be given the same meaning and different words different meanings. The Union submits that such a presumption is rebuttable but there is nothing in this collective agreement that would do so. In the Union’s submission the parties have used the term “salary” to refer to either weekly or annual earnings and not the hourly wage rate. The Union also refers to the language of articles 7.12 and 12.1 and argues the term “salary” is used in those two articles in a way that is consistent with the manner in which the Union argues it is to be interpreted.

19Anticipating the Employer’s reliance on a chart it produced detailing the use of the various terms in the collective agreement, the Union argues each term must be read and interpreted in the context within which it is used. In fact, the Union argues the chart is evidence that, when the parties mean to refer to hourly wage rates, that is the term they use. When the parties intend to refer to weekly or annual earnings, they use the term “salary.” The two terms cannot be collapsed as to do so would be to deny their intended different meanings and offend the established canons of interpretation that are to be applied. The Union argues the chart indicates that the word “rate” is primarily used for calculating various premiums. The Union notes that, in such provisions, the hourly rate is used to calculate the premium but argues such is evidence that, where the parties intended to make a reference to “hourly rates” they knew how to do so. Collapsing “salary” and “hourly rates” would offend the presumption that, when different words are used, they were intended to have different meanings.

20The Union relies on AMAPCEO (Association) and Ontario, 2017 CanLll 30335 (ON GSB); Ontario Power Generation and Society of Energy Professionals (Severance Pay for Temporary Employees), 2012 CanLII 81972 (ON LA), 2012 CarswellOnt 16996; Rothsay, a Member of Maple Leaf Foods, Inc. and UNIFOR, Local 38-X (Hale), 2014 CarswellOnt 10645; Pacific Press v. G.C.I.U., Local 25-C, 1995 CarswelllBC 3177; and OPSEU (Sin) v. LCBO, 2008 CanLII 4249 (ON GSB) as well as several dictionary definitions of “salary” and “wages.”

21The AMAPCEO decision, cited above, contains the following guidance as to the principles to be followed when interpreting a collective agreement:

14It is trite to state that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it. The parties referred to the summary of the cannons of collective agreement interpretation arbitrators utilize in achieving that objective, set out in Re Ontario Power Generation 2012 CanLII 81972 (ON LA), 2012 Carswell Ont. 16996 (Surdykowski) as follows:

17. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings and specific provisions prevail over general provisions. Both the words that are there and the words that are not there are significant.

18. Although as a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. Although much has been written about purpose, fairness, internal anomalies, administrative cost or feasibility, and what “should be”, such considerations only come into play when the language is truly ambiguous and the arbitrator must apply established labour relations principles in order to choose between two or more equally plausible interpretations. The rights arbitrator’s task is to determine what the collective agreement provides or requires, not what he or either party thinks it should say. If the language is sufficiently clear it must be applied as written regardless of any associated costs or administrative difficulties, or any apparent fairness of the effect on either party or the bargaining unit employees. …

19. More to the point is the decision in Golden Giant Mine [[2004] O.L.A.A. No. 600 (Ont. Arb.)] which is representative of the line of arbitral authority which stands for the proposition that entitlement to a monetary benefit must be derived from clear collective agreement language, and that such an entitlement cannot be inferred or implied. …

22In Rothsay, cited above, Arbitrator Luborsky provided the following set of rules of contract interpretation, listed by Arbitrator Bird in Pacific Press v. G.C.I.U., Local 25-C, [1995] B.C.C.A.A.A. No. 637 (B.C. Arb.):

1. The object of interpretation is to discover the mutual intention of the parties.

2. The primary resource for an interpretation is the collective agreement.

3. Extrinsic evidence (evidence outside of the official record of agreement, being the written collective agreement itself) is only helpful when it reveals the mutual intention.

4. Extrinsic evidence may clarify but not contradict a collective agreement.

5. A very important promise is likely to be clearly and unequivocally expressed.

6. In construing two provisions a harmonious interpretation is preferred rather than one which places them in conflict.

7. All clauses and words in a collective agreement should be given meaning, if possible.

8. When an agreement uses different words one presumes that the parties intended different meanings.

9. Ordinarily words in a collective agreement should be given their plain meaning.

10. Parties are presumed to know about relevant jurisprudence.

23The case of OPSEU (Sin), cited above, deals with a casual employee who applied for the position of Product Consultant and was unsuccessful. The collective agreement provision in issue provided that casual employees had the right to have qualifications and ability considered, with seniority as the determining factor where such factors are relatively equal, when applying for “permanent full-time vacancies at the entry level.” At issue in the case was whether the position being applied for had to be the lowest ranked position with the lowest rate of pay, or whether the phrase means the employee will be placed at the first step of the wage scale. Arbitrator Dissanayake finds “entry level” is a reference to the lowest ranked position and then goes on to examine whether the Product Consultant position was the lowest ranked position. Relying on the definition of “promotion” in what was then 21.5(a), and finding the Product Consultant position had a higher maximum salary rate than the Customer Service Representative position, Arbitrator Dissanayake found the Product Consultant position was not an entry level position.

24The definitions of “salary” and “wage” relied upon by the Union suggest the term salary is something paid weekly, biweekly, or monthly but calculated on an annual basis. In contrast “wage” generally refers to a payment on an hourly, daily or piecework basis.

Employer Submissions

25The Employer joins issue with the Union as to the issue in dispute turning on the meaning of the term “salary rate” in article 22.4(b)(i). The Employer submits when the parties used the term “salary rate” they were referring to hourly salary and not annual salary. The hourly rates of the two positions are identical, and hence, what Mr. Rockburn seeks, is a transfer, and not a promotion.

26The Employer relies on the following excerpt from Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53;

Regarding the first development, the interpretation of contracts has evolved towards a practical common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744 (S.C.C.), at para. 27 per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), 2010 SCC 4, [2010] 1 S.C.R. 69 (S.C.C.), at paras. 64-65 per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed.... In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.

(Reardon Smith Line, at p. 574, per Lord Wilberforce)

27The following paragraphs from Arbitrator Surdykowski’s decision in Petro Canada Lubricants Inc. and Unifor Local 593 (Thornton), 2019 CarswellOnt 10685 is cited for its articulation of the principles of collective agreement interpretation:

The grievance arbitrator is tasked with determining what the collective agreement provides or requires, regardless of the effect on either party or on bargaining unit employees. Subject to considerations of ambiguity or estoppel (or perhaps waiver) the employer, the union, and bargaining unit employees are entitled to no more or less than the benefit of the bargain made in the collective agreement as described by the words used. It is no part of a grievance arbitrator’s job to save the parties or either of them from the consequences of the agreement they have written. It is up to a party that is dissatisfied with the consequences of the collective agreement bargain as determined by a grievance arbitrator to seek a collective bargaining solution.

22 The fundamental collective agreement interpretation presumption is that the parties to a collective agreement purposely chose the language they have used to express their shared intention. That is, it must be presumed that the parties wrote what they meant and meant what they wrote.

23 Therefore, the fundamental (rebuttable) presumptive rules of collective agreement interpretation are:

• The words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd.

• All words must be given meaning, with the same word having the same meaning wherever it is used, and different words having different meanings.

• Specific provisions prevail over general provisions.

• Words or phrases cannot be either inferred or ignored unless it is essential to the purposive operation of the collective agreement.

24 Collective agreements are not negotiated or written by linguistic experts, and the Supreme Court of Canada’s decision in Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633, 2014 SCC 53 (S.C.C.) makes it clear that an arbitrator tasked with interpreting a collective agreement must not act as a mere linguistic technician. On the contrary, the arbitrator’s job is to take a practical approach to interpretation in order to determine the objective contextual labour relations meaning of the collective agreement provision(s) in dispute.

28The final case relied upon by the Employer for the principles of collective agreement interpretation is Ontario Power Generation and Society of Energy Professionals, 2013 CarswellOnt 17912, also relied upon by the Union above.

29The Employer begins with the principle that all words must be given meaning and words cannot be ignored or inferred. The Employer emphasizes that the parties chose to use the words “salary rate” not “salary” alone. The Employer argues the distinction is significant as the parties have not used “salary” alone to refer to annual salary. Looking at the Salary and Classification Schedule of the collective agreement at page 139, the Employer notes that it contains both “hourly” and “annual” earnings but for one classification, that of Liquor Store Clerk Grade 3, only the hourly earnings are set out; there is no row for “annual” earnings. The Schedule of Casual Hourly Wage Rates beginning at page 133, contains columns headed “salary” with the hourly rates only. Under many of the schedules there is the notation “Employees may be allowed to progress though the salary range on the employee’s anniversary date…” The Employer asserts the parties have used the word “salary” and the term “wage rate” interchangeably. The word “salary” has been used to refer to both hourly earnings and annual earnings and, as such, the word “salary,” on its own, does not tell us what the parties intended. To accept the Union’s position, the Employer submits, would be to write in the word “annual” before “salary.” This is inconsistent with the fact that, “annual salary” is a defined term as per article 36.5 and, in other articles of the collective agreement, where the parties have intended to refer to “annual salary” they have in fact used this term, not the word “salary” alone. The word “annual” cannot be inferred in these circumstances.

30Similarly, the Employer argues, the word “rate” cannot be ignored. The term in issue is “higher maximum salary rate” not “higher maximum annual salary.” In interpreting the word “rate”, the Employer submits the collective agreement must be read as a whole; with the same word having the same meaning wherever it is used. In the Employer’s submission, the term “rate” is used almost synonymously with “hourly rate” the two terms go hand in hand as “hourly” earnings are expressed as “hourly rate” many times in the collective agreement.

31The Employer submits that the parties negotiate hourly rates not annual rates, and all bargaining unit employees are paid by the hour. A bargaining unit employee’s annual rate is not likely to be the amount that appears in the “annual” row set out in the wage grid as it will depend on the number of hours worked and does not account for aberrations such as a leap year.

32The Employer produced charts setting out the articles of the collective agreement that, with noted exceptions, refer to “rate” and “salary.” Having regard to the findings set out in the charts, the Employer submits as follows.

33Article 1.3 of the collective agreement provides, if the Employer introduces a new classification during the life of the collective agreement, it shall notify the Union of the proposed “rate.” The article then sets out a method for resolving any dispute as to the “rate.” The Employer emphasized that the parties only negotiate hourly rates and thus the word “rate” in article 1.3 must mean “hourly rate.”

34Article 4.4 requires the Employer to provide the Union with the names and “rates of pay” for any seasonal employees. Given seasonal employees are only paid hourly, the term “rates to pay” means hourly rates.

35Next, article 11.3(b) deals with how to calculate an attendance bonus. It provides that it is to be calculated at the “rate of salary” the employee was receiving on the 31^st day of December in the attendance year. Under article 10, employees receive an attendance credit of 15 days a year. Pursuant to article 11, at the end of the year, employees can bank their credits or get a portion of them paid out as an attendance bonus. The Employer submits “rate of salary” is obviously a reference to the employee’s hourly wage rate resulting in outstanding attendance credits being simply calculated by multiplying the hours of outstanding credits by the employee’s hourly wage rate. To find “rate of salary” to be a reference to annual salary would lead to the absurdity of taking the employee’s annual salary divided by the number of workdays, divided by the number of hours and multiplying the result by the number of credits.

36Article 4.4(b) requires the Employer to provide the Union with the “rates of pay” for seasonal employees. Seasonal employees are paid by the hour. Thus, “rate of pay” means “hourly rate of pay.”

37Under Article 6, full-time employees in logistics are entitled to displace seasonal employees. Article 6.16 provides that an employee, who is assigned to a different position with a different “maximum salary,” shall be paid at the “rate” closest to but not greater than their prior “rate.” The term “salary” and “rate” are used interchangeably.

38Article 7.6, dealing with overtime, uses the term “rate” to refer to payments calculated from the employee’s hourly rate. Article 7.19, dealing with travel time, similarly uses the term “rate of pay” in reference to a payment to be made based on the employee’s hourly rate. Article 11.3(b), setting out how to calculate the attendance bonus, uses the term “rate of salary” to refer to hourly rate.

39Article 21.5 deals with the Long Term Income Protection Plan (LTIP). Article 21.5(d)(iii) specifies that, when an employee receiving LTIP benefits is able to return to work, they are to be paid at the same step in “the salary range” as prior to their leave for six months. At the end of that period, they are to be assigned to the rate “within the salary range” of the classification of the position to which they are been assigned. This article, pursuant to Appendix 4, applies to seasonal employees who are only paid hourly and thus “salary range” must be a reference to hourly earnings. The Employer argues, in the context of a collective agreement that has classifications that only have an hourly wage rate, the parties must, when they used the term “salary range” have been referring to hourly wages. The two terms mean the same thing.

40Article 22.8(b) provides that, where an employee is demoted, they shall be assigned to a step in the new “salary range” closest to but no less than the rate they were receiving at the time of demotion. Within a collective agreement that has classifications that only have an hourly rate, the Employer argues “salary range” must be a reference to hourly rates of pay. Salary range and hourly rates of pay are thus synonymous.

41Article 22.10(c) applies to retail employees including Customer Service Representatives (“CSR”) who only have an hourly rate. It specifies that an employee who is the successful candidate for a position that constitutes a demotion, the demoted employee will receive the “wage rate,” closest to, but not greater than the employee’s current “wage rate.” An assistant manager who is the successful applicant in job competition for a CSR will receive the hourly wage rate closest to their prior rate. As the comparison can only be made to similar units, “wage rate” must mean hourly rate.

42Article 32 applies to casual employees. Article 32.1 sets out entitlement to over-time pay and how it is to be calculated. It uses both the term “hourly rate” and “regular rate of pay” interchangeably. It is clear that “regular rate of pay” in article 32 refers to “hourly rate” as casuals only have an hourly rate.

43Appendix 4 applies to seasonal employees. Article 4-10.14 provides that a seasonal employee who loses their seasonal status shall have the option to be paid out their vacation credits at the “rate in effect” at that time. Seasonal employees only receive an hourly wage such that “rate in effect” must be a reference to their hourly wage rate. The term “rate in effect” is also used in article 4-11.7 dealing with attendance credits and, again, must be a reference to hourly wage rate. Article 4-14.1 sets a season employee “hourly wage rate” based on an increasing percentage of the “salary range” of the full-time position of Warehouse Worker 3 “wage rate.” The article then provides that “salary increases” will be dependent on performance and supervisor recommendation. As the Appendix relates only to seasonal employees, the word “salary” can only be a reference to increases in hourly wages. Within this one article, the parties are using both “wage” and “salary” to refer to the hourly wage rate.

44In addition, when one turns to the wage grid for Warehouse Worker 3 in the collective agreement, one sees that there is no row entitled “salary.” The rows are headed “hourly” and “annual.” We know, because seasonal employees are only paid hourly, that it must be the row entitled “hourly” that applies. Thus, in Appendix 4 article 4-14.1, “salary range” and “salary increases” are references to what, in the Warehouse Worker 3 wage grid, is referred to as “hourly” rates of pay. Again, “wage rate” and “salary” are being used synonymously to refer to the “hourly” rates.

45The Employer argues that the second chart it has prepared, denoting those articles of the collective agreement that contain the word “salary,” with noted exceptions, shows that, where the word “salary” is used alone, the parties are referring to an aggregate amount such as total salary paid to an employee during a period of time. But what does not appear anywhere in the collective agreement is the term “annual rate” or the word “rate” being used in conjunction with the word annual to denote a yearly amount.

46Turning to the article in question, article 22.4(b)(i), the Employer argues that, had the parties provided that a promotion is an assignment to a position with a higher maximum salary, the Union’s argument may have been stronger. However, the parties used the term “salary rate” and, words have meaning. The existence of the word “rate” cannot be ignored. Throughout the collective agreement it is clear that the parties used the term “rate” to mean “hourly rate.”

47Words must be given their plain and ordinary meaning unless the result would be absurd. The Employer submits the plain and ordinary meaning of salary rate being hourly rate does not create any absurdity. Simply, in this collective agreement, “salary rate” is used interchangeably with hourly rate. The parties have not, as the Union advances, adopted dictionary definitions of terms. These employees do not receive an annual salary, they have to work the prescribed hours in a week to receive the amount that they are paid by the hour. In fact, each calendar year does not have 52.17 weeks, the calendar is not precise and there are leap years. The number of work days in a year vary so there are years when the annual amount will not be received. The annual amount is not accurate but the hourly rate is accurate. A movement between two positions with the same hourly rate but different total annual earnings would constitute a transfer not a promotion.

48The Employer relies on Atlas Steel Co. v. U.S.W.A., 1975 CarswellOnt 1417; Re Ascolectric Ltd. and International Union of Electrical Radio and Machine Workers, Local 553, [1980] O.L.A.A. No. 68; and Sault Ste. Marie (City) v. C.U.P.E., Local 67, 2011 CarswellOnt 9263, in support of its position that having to work more hours to earn more money is not a promotion. The Employer relies on the cases in support of its assertion that finding the move to a job that pays the same hourly rate but works more hours not to be a promotion is not absurd.

49In Atlas Steel, cited above, the grievor was a billing clerk and applied for the job of shipping clerk. The shipping clerk job involved a 40-hour work week while the billing clerk job involved a 36.25 hour work week. It was only as a result of the additional work hours that the shipping clerk earned more than the billing clerk. The collective agreement provided, in the event of a promotional opportunity, preference will be given according to seniority. The arbitrator concluded that increased pay as a result of increased hours does not, by itself, constitute a promotion.

50In Ascolectric Ltd., cited above, the grievor, who worked as a coil assembler applied for the position of valve assembler. Both jobs paid the same rate. The collective agreement restricted applications to where the new job would represent a promotion. The grievor was not awarded the position on the basis that she was not entitled to apply. The grievance was dismissed on the basis that the valve assembler job would involve a lateral transfer and not a promotion.

51In Sault Ste. Marie, cited above, the grievor, who was a temporary, on-call and as required cleaner, applied for a permanent full-time cleaner vacancy. The parties disagreed as to whether a provision of the collective agreement, triggered by “promotion to a higher job class,” had been triggered. The arbitrator concluded that the two job classes paid the same hourly rate of pay and, as such, the full-time cleaner position did not constitute a “promotion to a higher job class.”

52Having regard to the language of the collective agreement, the Employer submits that the salary rate of the QA Clerk and Operations Clerk positions are identical and hence the assignment from the former position to the latter would not result in any change in salary rate. That is a transfer. These parties specifically provided that a Logistics employee cannot, unlike Retail Operations and Head Office employees, apply for a transfer. To find a move from one job to another, that pays the exact same hourly rate, is not a transfer would be to deny the intentions of the parties. The word transfer cannot be ignored.

Union Submissions in Reply

53In reply, the Union states the thrust of the Employer’s argument is that the phrase “higher maximum salary rate” is synonymous with “maximum hourly rate.” The Union argues that would involve replacing the operative definition in article 22.4(b)(i) with one more convenient to the Employer’s argument. The Union submits that the words of the collective agreement are to be given primacy and it is the words as written that are to be interpreted not a different phrase more convenient to one party of the other. The Union submits that the word “rate” takes its meaning from the context and the words used in each article. By way of example, article 7.6, which deals with the payment of overtime, uses both the term “rate” and “normal hourly rate.” The context is vital to establishing that “rate” is referring to “hourly rate.” Further this provision demonstrates that, where the parties intended to refer to “hourly rate” they did so clearly. Similarly, in article 8.4 and 8.6 the term “hourly rate” is used. In those instances, where both terms appear, “rate” takes its meaning from “hourly rate” but it is not appropriate to collapse the two to say “rate” always means “hourly rate.” While there may not be complete uniformity in the collective agreement there are sufficient instances to find that “rate” takes its meaning from the context and language of the provision in which it appears and does not uniformly mean “hourly rate.”

54The Union refers to the termination payments provision in article 12 of the collective agreement and notes that it makes specific reference to “weekly salary.”

55The Union submits that it must be recognized that the article in issue in this matter, operates in a specific circumstance; The movement of one full-time employee from their current position to another full-time position with a higher maximum salary rate. The Employer relies on numerous articles that apply to casual and seasonal employees. Some of the articles the Employer relies upon, such as article 32, contain the phrase “hourly rate” and “hourly rate of pay” such that there is a very strong context within which to determine “rate” means “hourly rate.” That does not mean that “rate” and “hourly rate” are synonymous; it does not mean that, in so far as PFTs are concerned, the same logic would apply. Further we know that casuals operate on a very different model than PFT employees. Casuals have no fixed hours of work and no guarantee of hours of work. It only makes sense, contextually, for “rate” in those circumstances to be a reference to “hourly rate.” But that does not displace the meaning of “salary” as used in article 22.4 of the collective agreement.

56The employees to whom article 22.4(b)(i) applies do have fixed hours of work. The Union disputes that it is asking for the word “annual” to be read into article 22.4(b)(i). It is asking that salary be interpreted harmoniously with article 36 which sets out definitions for PPT positions. Salary, the Union submits, according to article 36 is based on hours worked not on the hourly rate.

57The Union notes the number of instances in the collective agreement when the term “hourly rate” is used and submits that the parties clearly knew to use the term when it was intended. But the parties did not use the term “hourly rate” they used the term “salary” and different words should be given different meanings. The Union is not asking that the word “rate” be ignored it is asking that it be recognized that it is modified by the word “salary.” Rate, the Union argues, does not have its own meaning, rather it takes its meaning for the context of the articles in which it appears.

58The Union argues that the Employer’s submissions fail to recognize how salary is calculated in other provisions of the collective agreement including article 36. The Employer has invited an interpretation that is not harmonious but rather is discordant.

59The Union distinguishes Atlas Steel, cited above, on the basis that it did not contain a definition of “promotion” and did not consider the definition of promotion in issue in this case. The determination to be made in this case must be made based on the specific language negotiated and cannot be displaced by the general arbitral definition. The same comments are made in respect of Ascolectric Ltd., and Sault Ste. Marie cases cited above.

60In the Union’s submission, “salary” means exactly what you would expect it to mean especially given its usage in other provisions of the collective agreement.

Analysis and Decision

61The thorough and detailed analysis conducted by both parties is to be commended. A very difficult issue of collective agreement interpretation was argued very efficiently and effectively. What appears on its face to be rather simple language turned out to be very difficult to interpret.

62The Union’s argument that the application of the definitions in article 36.5 mean the annual amounts set out in the wage grids are “annual salary” serves to have the “annual” amounts in the wage grids recognized as “annual salary.” Similarly, applying the commonly understood meaning of “salary” would have the “annual amounts” in the wage grids recognized as “annual salary.” The difficulty is, however, that the term in need of interpretation is “salary rate” and not “annual salary.” Further, in this collective agreement, the term “annual salary” is used frequently, as is “weekly salary,” making the absence of the word “annual” worthy of note. The presence of the word “annual” in the term “salary rate” cannot be inferred or implied through the application of article 36.5. Further the word “salary” appears alone many times in this collective agreement and, in many instances, is not a reference to “annual salary.” Thus, it is not the case, in this collective agreement, that “salary,” in article 22.4(b)(i) can be assumed to mean “annual salary.”

63The Union relies on the language of article 6.3, 7.12 and 12.1 and argues the word “salary” is used in each of these articles consistent with the manner in which it argues “salary” should be interpreted. Article 7.12 provides for “Acting Pay.” An employee who replaces an employee in a higher classification receives a premium of $2.00 an hour for each hour such duties are performed provided it does “not exceed the maximum of the salary range of the higher classification.” Given the premium is an hourly amount based on hours worked, “salary range” is more likely to be a reference to hourly amounts than annual amounts. Article 12.1 uses the terms “annual salary” and “weekly salary” not “salary” alone and the same argument the parties are making in this case could arise in connection with article 6.3. Thus, I do not read article 6.3, 7.12 and 12.1 as supportive of the Union’s position.

64There are instances in the collective agreement where the word “salary” alone is used to refer to payments made to an employee over a period of time. Article 21.3 provides that PFT are entitled to life insurance equal to “100% of salary or twenty thousand dollars ($20,000.00) whichever is greater.” Article 9.2 provides that, where a PFT leaves after less than six months of service, they will get vacation pay at the rate of “four percent (4%) of salary paid to the employee during this period.” Article 25 provides that, in the event of death “salary due and salary for vacation and overtime credits” will be paid. These are the only instances of which I am aware where the word “salary,” used alone, refers to earnings over a period of time. There is only one instance where the word “salary” is used to mean “annual salary.”

65There are a greater number of instances in the collective agreement where “salary” appears alone and is used to refer to hourly amounts. The most obvious example is in the Schedule of Casual Hourly Wage Rates where each of the columns setting out the hourly rates paid to casual employees are headed “Salary.” Further, beneath each column is a note that reads: “Employees may be allowed to progress through the salary range on the employee’s anniversary date….” Next is Article 11.3(b), wherein the attendance bonus, a payment of one-fifth, one-quarter, or one-third of unused attendance credits, is to be calculated “at the rate of salary the employee was receiving on the 31^st day of December in the attendance year.” To calculate such a bonus by the hourly rate would be simple. To calculate it backwards from an annual rate would be cumbersome. It is simply logical that “rate of salary” in article 11.3(b) is a reference to the hourly amount on the wage grid.¹ A further example is Appendix 4-14.1. This provision states that seasonal employee “hourly wage rates shall be based on the first step of the salary range of the Warehouse Worker 3 wage rate.” It then provides that “salary increases” will be dependent upon satisfactory performance and recommendation from [the] supervisor.” The hourly wage rate of the Warehouse Worker 3 forms the “salary range” for the casual employees and increases to that hourly rate are “salary increases.” As discussed above, it is very likely that “salary range” in article 7.2, dealing with Acting Pay, is a reference to hourly rates.

66There are many provisions in the collective agreement that apply to employees who are covered by a wage grid with a row that sets out “annual” amounts and employees who have no such row in their wage grid but rather have only an “hourly” amount. I will refer to the first group as the “Annual Group” and the second group as the “Hourly Group.” Many of these provisions refer to “salary” without distinction as between the two sets of employees. Article 26.1 is entitled “Salaries” and provides as follows:

The Employer agrees to pay, and the Union agrees to accept the salaries for the classifications herein set forth in the Salary and Classification Schedule [all except one classification has a row setting out annual amounts beneath the row setting out hourly amounts] and the Schedule of Casual Hourly Wage Rates [none of the wage grids for any of the classifications have a row with annual amounts] attached hereto.

Article 26.3 then directs that all employees shall be required “to receive his/her salary in the form of a direct deposit.” Article 26.3 covers both the Annual Group and the Hourly Group and thus “salary” cannot, in this instance, be intended to be a reference to annual amounts. Article 1.5(b) requires the Employer to provide a leave of absence without pay for Union representatives and during such leave the “salary” of the union representative is to be maintained. Again, this provision applies to both the Annual Group and the Hourly Group and thus “salary” cannot a synonym for “annual salary.” In these articles, salary appears to be used without distinction, simply a word to broadly signify amounts to be paid by the Employer.

67Amongst the provisions of the collective agreement that cover both the Annual Group and the Hourly Group, some of them could require a comparison be made as between the “salary” of a member of the Annual Group and the “salary” of a member of the Hourly Group. For example, article 6.16 provides that, where an employee who was laid off is assigned to a position with a classification having a different maximum salary the employee shall be paid the rate they were receiving prior to the assignment or lay-off. If the employee concerned were laid off from a position with a wage scale that has a row setting out annual amounts and assigned to a position in a classification without annual amounts, the only way to compare the two positions’ “maximum salary” is to compare their hourly rates. The same is true with respect to article 21.5(d)(iii) concerning an employee returning from LTIP and assigned to a different position. In fact, the very provision under consideration, article 22.4(b) could, depending on who is applying, and what position they are applying for, require a comparison between positions that have a row in their wage grid setting out annual amounts and a CSR position that does not. As the Employer argues, the only way to compare the salary of two such employees is to compare the hourly amount set out in the wage grid of each.

68The foregoing establishes that where “salary” is used alone in this collective agreement, unmodified by “annual” or “weekly”, there are very few instances where “salary” is used to refer to money paid over a period of time and, in only one of those instances, was the intention to refer to annual salary. There are instances in this collective agreement where “salary” is used alone to clearly refer to the hourly amounts set out in a wage grid. Finally, there are provisions in the collective agreement that require a comparison be made between the maximum of the “salary range” of employees and such comparison could have to be made between an employee in the Annual Group and an employee in the Hourly Group where the only common rate of pay would be the hourly rate.

69Having examined the use of the word “salary” I turn to the significance of the second word in the term: “rate.” The Employer argues the word “rate” is synonymous with “hourly rate.”

70The word “rate” is used in this collective agreement in two ways. It is used to describe how to calculate a premium or a benefit such as overtime, travel time and vacation and it is used to refer to the hourly rate.

71As argued by the Employer, there are instances in the collective agreement where “rate” is used as a short form for the frequently used term “wage rate.” Article 1.3 provides that, in the event the Employer introduces a new classification, it shall notify the Union of the proposed “rate.” The Employer stated, and it was not contested or disputed by the Union, that the parties only negotiate hourly wage rates and hence the word “rate” is being used as a short form for “hourly wage rate.” Article 22.8, reviewed above, also uses the word “rate” to mean “hourly wage rate.”

72Unlike “salary”, which is modified in the collective agreement as “hourly salary,” “weekly salary” and “annual salary,” each of which is quite different and leaves the meaning of “salary,” when it appears alone, in doubt, the modifiers applied to “rate,” such as hourly rate, wage rate, basic rate, normal hourly rate, regular straight time hourly rate, basic hourly rate, rates of pay, regular rate of pay, all give “rate” the same meaning. “Rate,” where not used in connection with a premium payment, is always modified to mean hourly rate. As such, when the word “rate” appears it can reasonably be assumed the parties intended the word to refer to hourly rates.

73I return to the article at the centre of this dispute to consider the language in light of the foregoing ways in which the words “salary” and “rate” are used in this collective agreement.

(b) For the purpose of Article 22.5(a), a promotion shall be deemed to include:

(i) the assignment of a permanent full-time employee to another permanent full-time position in a class with a higher maximum salary rate than the class of his/her former position;

74The parties did not, as they have done in numerous other articles of this collective agreement, use the term “annual salary.” The word “annual” ought not to be assumed. Further, if “salary rate” is interpreted to mean “annual salary” the word “rate” is not given any meaning. Thus, if “salary rate” is found to mean “annual salary” the word “annual” would be written in and the word “rate” ignored.

75In contrast, the word “salary” is used, on its own, a number of times in this collective agreement to refer to hourly rates. Interpreting salary to mean “hourly rates” would be consistent with how it is used in other provisions of the agreement. The word “rate” is only used in two ways in this agreement; when describing now to calculate benefits, which is obviously not the case in article 22.4(b)(i), and as a short form for “wage rate.” Interpreting “rate” to mean hourly rate would be consistent with how it is used in this agreement. Interpreting “salary rate” to mean “hourly rate” recognizes the existence of both words.

76Article 22.4(b)(i) could require the “salary” of a position that has a wage grid with a row setting out annual amounts to be compared with that of a position that does not. If “salary rate” is interpreted to mean “annual salary” such a comparison would be impossible. The only way such a comparison could be made is if “salary rate” means the hourly rate. Interpreting “salary rate” to mean “hourly rate” allows the provision to function consistently in all of its applications.

77For these reasons, I find “salary rate” is a reference to the amounts in the wage grid in the row labelled “hourly” and not to the amounts set out in the wage grid labelled “annual.”

78The QA Clerk and Operations Clerk positions have the identical maximum hourly amount set out in the wage grids. As such, the assignment of Mr. Rockburn from the QA Clerk position to the Operations Clerk position would not be a promotion.

79For the foregoing reasons the grievance is dismissed.

Footnotes

1. 1I note that article 12.1(a)(i), which deals with the payout of attendance credits in the event of termination is different as it uses the term “annual salary” and not “rate of salary.” The distinction appears to be the result of the fact that, in article 12.1(a)(i), no partial days are to be paid out; only full days are paid out and thus the calculation from the annual rate is much easier. In fact, in article 12.1(a)(i) a divisor to determine a daily rate from the annual rate is specifically provided.