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September Labour Update

Below are summaries of two recent arbitration decisions and a breakdown of salary enhancements achieved through recent collective bargaining. Members with questions may contact, Michael Duffy, for more information.   

Strathroy-Caradoc Police Association v. Strathroy-Caradoc Police Services Board (Payroll, Anticipatory Breach)

The Strathroy-Caradoc Police Association (SCPA) succeeded in obtaining a grievance award preventing the employer from implementing a new payroll framework without first bargaining a change to the collective agreement. Though the payroll framework change had not yet taken effect when the grievance was filed, the association successfully demonstrated that a breach was anticipated. The employer should thereby be enjoined from instituting its published policy. 

Before issuing the new payroll framework policy, members of the SCPA “were paid on an “up-to-date” basis, meaning that on the day a member’s pay was issued, it accounted for the 14 days of work up to and including payday. Members would be paid five days in arrears under the new framework, which was to be rolled out across the entire municipality. The nature of the transition to the new framework meant that members would receive less pay in 2023 than had been called for in the collective agreement.  

Notably, in 2010, the association and employer reached a settlement regarding how members would be paid. That settlement called for an up-to-date payment system. The employer refused an association request to provide an additional payday in 2023 to cover the five days missing, thereby bringing the association members onto the desired payment schedule without prejudice to their 2023 pay. The employer noted that no member would be unpaid for hours worked as the final paycheque received by the member upon their departure from the service would make the member whole.  

The association conceded that the employer had the right to alter the payment structure but based the grievance on the contention that the alteration would violate the salary amounts called for in the collective agreement. 

The arbitrator closely examined both the collective agreement and the 2010 minutes of settlement and concluded that the employer is obligated to pay each member a-twenty-sixth of their annual salary bi-weekly. On this basis, the arbitrator concluded that, despite the employer’s intention to eventually make members whole, the employer could not escape the fact that it intended to pay members less in 2023 than the amount the association had bargained. The arbitrator declared that there was an anticipatory breach of the collective agreement and remained empanelled to determine what, if any, remedy would be available to the association if, on January 1st, 2024, a breach of the agreement, in fact, occurred. 

This case makes clear the broad ability of an association to enforce its rights even before an actual breach of the collective agreement. A policy that is announced but not yet implemented that is, on its face, a violation of accrued rights may be grieved and an arbitrator may make a declaration of anticipatory breach. Associations are advised to review the decision and ensure that their employer is aware of it as well.  

Ontario Provincial Police Association v. Ontario Provincial Police (Vacation Cancellation) 

At the outset of the COVID-19 pandemic in March 2020 the employer issued a memo announcing that all scheduled annual leave was cancelled, and no new leave would be approved until at least May 30th of that same year. A few days later, the employer issued a further directive clarifying that members who were then on annual leave were only required to return to the workplace after such leave period had concluded. The employer also asserted that those members whose vacation was cancelled would not be entitled to overtime during the period where they would otherwise have been on vacation. The association immediately indicated its disagreement with the employer that impacted members were not entitled to overtime pay.  

By the middle of April, the employer had determined that staffing availability was such that members who had had their vacation cancelled were entitled to have such vacation reinstated. The association grieved the employer’s determination that it would not compensate overtime pay to members who ended up working during their vacation period. 

The case turned on the interpretation of the following provision: 

Overtime shall be paid at the rate of two and one-half (2 1/2) times the hourly rate when an employee is required to report for any period of work on or during the vacation leave period, with a minimum payment of sixteen (16) hours. In addition, the employee shall be granted a compensating day off. 

The association asserted that it was irrelevant that the impacted members had yet to begin any scheduled vacation when the directive was issued. The association claimed that the provision applied so long as the member performed work during a time that would otherwise have been their vacation leave period. The employer asserted that the provision was only intended to apply to members whose vacation was interrupted by a call back from the employer. Any entitlements arising from this circumstance should be dealt with under the shift change provisions of the collective agreement. 

The arbitrator found that the collective agreement language was “inelegant,” but there was no dispute that the parties established a significant vacation cancellation premium in the collective agreement. After rejecting the employers’ arguments that the vacation cancellation was a “shift change,” the arbitrator found that if the parties intended that the vacation cancellation premium was only to apply to members who were already on vacation at the time their vacation was cancelled such intention would have been expressed in clear language.  

The arbitrator found that the phrase “on or during” did not refer to the day when the employee was informed that their vacation was cancelled but rather referred to the period during which the employee is required to work, given that the arbitrator agreed with the association’s interpretation of the agreement the grievance was upheld. Specific compensation was not laid out in the decision. However, the arbitrator remained seized. 

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