IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO POWER GENERATION ("the Employer") AND: THE SOCIETY OF ENERGY PROFESSIONALS ("the Society") IN THE MATTER OF: RENEWAL COLLECTIVE AGREEMENT SOLE ARBITRATOR: Kevin M. Burkett APPEARANCES FOR THE EMPLOYER: John West - Counsel Brian Gottheil - Counsel Associate Scott Martin - Vice President – Labour Relations, Safety, Wellness and Corp Security Glenn Zavitz - Director – Labour Relations Joe Kennedy - Manager – Labour Relations Carissa Nowak - Senior Staff Relations Officer Connie Hergert - Manager – Labour Relations, Safety, Wellness and Corp Security Brian Duncan - Deputy Site Vice President – Darlington Nuclear Mike Martelli - Plant Manager – Niagara Plant Group Tom Christensen - Director – Thermal Supply Chain Eric McCarthy - Director – Fuels Jean Beharrell - Human Resources Manager
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IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO POWER GENERATION
("the Employer") AND: THE SOCIETY OF ENERGY PROFESSIONALS
("the Society") IN THE MATTER OF: RENEWAL COLLECTIVE AGREEMENT SOLE ARBITRATOR: Kevin M. Burkett APPEARANCES FOR THE EMPLOYER: John West - Counsel Brian Gottheil - Counsel Associate Scott Martin - Vice President – Labour Relations, Safety, Wellness and Corp Security Glenn Zavitz - Director – Labour Relations Joe Kennedy - Manager – Labour Relations Carissa Nowak - Senior Staff Relations Officer Connie Hergert - Manager – Labour Relations, Safety, Wellness and Corp Security Brian Duncan - Deputy Site Vice President – Darlington Nuclear Mike Martelli - Plant Manager – Niagara Plant Group Tom Christensen - Director – Thermal Supply Chain Eric McCarthy - Director – Fuels Jean Beharrell - Human Resources Manager
APPEARANCES FOR THE SOCIETY: Joe Fierro - Local Vice-President Victor Chetcuti - Unit 2 Director Peter Tien - Unit 8 Director Tony Kokus - Unit 9 Director Alex Saba - Unit 16 Director Andre Kolompar - Staff Officer Elizabeth Traicus - Staff Officer Joe Lesperance - Staff Officer Hearing in this matter was held in Toronto, Ontario on January 17, 2011.
The Society of Energy Professionals (Society) has had a longstanding
collective bargaining relationship with Ontario Power Generation (OPG) and its
predecessor, Ontario Hydro. The Society and OPG were party to a collective
agreement that expired December 31, 2010. Pursuant to article 15 of that collective
agreement, "Future contract negotiations disputes shall be resolved by binding
arbitration (and further that) the dispute resolution process shall be mediation-
arbitration using the same individual as both the mediator and arbitrator." I have been
appointed under article 15 as the mediator-arbitrator in respect of the renegotiation of
the collective agreement between the parties that expired December 31, 2010. There is
no dispute with respect to my jurisdiction in this regard. Mediation/arbitration briefs
were submitted by both parties in advance of the mediation that took place on January
15 and 16, 2011, followed by a formal arbitration hearing on January 17, 2011.
By way of background, OPG was incorporated on December 1, 1998 as one of
five successor companies to the predecessor Ontario Hydro. OPG is charged with
generating electric power and in this regard operates three nuclear stations (Pickering
A, Pickering B and Darlington), five fossil fuel stations and 65 hydroelectric stations.
OPG employs some 11,900 employees, located at various sites across the province, of
whom approximately 3,724 are represented by the Society and 6,917 by the Power
Workers' Union (PWU), an affiliate of the Canadian Union of Public Employees. The
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Society membership is comprised of engineers, scientists and other professional staff,
including those in supervisory, administrative and engineering services.
Because Society members oversee and supervise the work of PWU members,
the differentials between these two groups of employees come to the fore in collective
bargaining. Further, given the education, training and responsibilities of Society
members, they earn sizeable incomes. The maximum for the lowest salary band
(MP2) exceeds $90,000 per annum and then, moving from MP3 to MP6, the
maximum salary ranges from $98,113 to $118,924 per annum. Six hundred twenty-
seven of the 966 professional engineers employed by OPG earn in excess of $100,000
per annum. However, as I made clear in Bruce Power LP and Society (2004) 126 LAC
(4th) 144, also an interest dispute involving the Society, "absent comparative analysis
of duties and responsibilities as between these and other similarly educated and
trained persons ... there is no basis upon which to conclude that the members of this
bargaining unit enjoy an absolute salary advantage that should act to moderate future
salary increases."
The background also requires a brief overview of the statutory regime under
which OPG operates. As part of the restructuring of the predecessor Ontario Hydro,
OPG was incorporated under the Ontario Business Corporations Act to perform the
electricity generation functions of the predecessor Ontario Hydro. Its sole shareholder
is the Province of Ontario who appoints its 12-member board of directors. This
ownership structure is especially important in this round of bargaining, given the
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passage of the Public Sector Compensation Restraint to Protect Public Services Act
(Bill 16) and the provincial government's accompanying restraint policy, about which
I will have more to say.
The restructuring of the predecessor Ontario Hydro was designed to introduce
competition into the electricity market. As a result, OPG now faces competitive
pressure from other electricity producers that has been statutorily arranged and
encouraged. The Green Energy Act, enacted in 2009, enables the Ontario Power
Authority (OPA) to implement the "feed-in tariff (FIT)" program. Under this program,
OPA offers guaranteed contracts to producers of electricity from renewable sources
(wind, solar). These contracts offer significantly higher rates than the rates OPG is
able to charge. They also ensure that electricity is purchased from renewable sources
before it is purchased from OPG. The OPA has also entered into a number of other
generation supply contracts pursuant to ministerial directives with natural gas
generators, nuclear generators and hydroelectric generators. In the result, OPG,
because it, in effect, stands last in line, has not been able to sell all of its available
generation even though responsible for operating and maintaining the assets necessary
to supply the base power load for the province of Ontario.
OPG also faces greater regulatory pressures than did Ontario Hydro. The
Ontario Energy Board (OEB) is an independent, quasi-judicial energy industry
regulator with a statutory obligation to protect the interests of consumers with respect
to electricity prices. Given the recent spike in consumer electricity prices, for reasons
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related to the higher price of "green" energy, it can be expected that the OEB will be
seeking to moderate these price increases, including any price increase sought by
OPG. OEB determines the rates that OPG can charge for its nuclear-generated
electricity and its regulated hydroelectric plants (70% of OPG's energy production and
45% of its generating capacity). The OEB exercises its mandate in this regard through
a public hearing process under which OPG has a legal onus to demonstrate that its
costs are just and reasonable. The OEB decision on 2011-12 rates is expected in
February 2011. Because the Province has announced that it intends to eliminate coal-
fired generation, the proportion of OPG's revenues that it derives from regulated
production will increase in the future.
While OPG develops its own business strategies and business plans, these plans
must be approved by the Government of Ontario as its sole shareholder. More
generally, the Government of Ontario also controls OPG's overall mandate and, in this
regard, ensures that OPG provides a consistent level of base power and, at the same
time, restrains OPG from pursuing certain investment opportunities, including
investments in renewable electricity generation. In addition, the Province of Ontario,
as sole shareholder, has required OPG to make significant capital investments to
upgrade and refurbish its nuclear generation facilities. The Government of Ontario
must also approve any decisions on new generation, such that OPG asserts that it
lacks control over its ability to invest in activities that it believes might increase its
revenue.
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All of the foregoing has informed OPG's bargaining position in this round.
Notwithstanding the foregoing, however, OPG had a net income of $623 million in
2009 and $447 million for the first three quarters of 2010 (the most recent reporting
period). Over the 2012 to 2015 period, OPG's return on investment is forecast at the
5% to 6% range which would produce net income of between $440 million and $480
million annually throughout the period.
In this round, the influence of the Government of Ontario extends beyond the
statutory, regulatory and administrative parameters already identified. In March 2010,
the Government of Ontario enacted the Public Sector Compensation Restraint to
Protect Public Services Act 2010 (Bill 16) in response to a ballooning provincial
deficit. The bill freezes the compensation of non-unionized government employees
and non-union employees of its transfer partners. Although it does not apply to the
unionized employees of these employers, the Government of Ontario made a number
of related pronouncements having to do with wage restraint for unionized employees
and the withholding of funding for collectively bargained compensation increases that
had not already been finalized. The budget speech cautioned that there would be "no
funding for incremental compensation increases for any future collective agreements."
As recently as January 12, 2011, the week before this mediation/arbitration, the
Government of Ontario, over the signatures of both the Minister of Energy and the
Minister of Finance, wrote to remind OPG that "as an agency of the Province (it) is
subject to these obligations and expectations." Consistent with the direction of the
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Government of Ontario, the bargaining position of OPG and the position it has taken
throughout is that there should be a zero net compensation increase over a two-year
term.
It should come as no surprise that the parties made very little progress in direct
two-party negotiation. Once OPG made it known that it was seeking a zero net
compensation agreement and that it would be maintaining that position throughout,
there was no reason for the Society to moderate its position or to seriously consider
the OPG demands designed to improve the efficiency of its operations. The effect of
the Government pronouncement and its direction to OPG was to "freeze" the
bargaining and thereby to prevent the parties from either moving to an agreement or at
least prioritizing their respective bargaining positions. In the result, an inordinate
number of issues have been put into dispute before me. These are:
Society Items
• Term
• Wages
• Cost of Living Allowance (COLA)
• Practice of Terminating Employees' Sick Leave Entitlements While Employee
has Medical Certification for Sick Leave and the Requirement for Independent
Medical Examinations
• Employee Choice on Payment Methods for Overtime Worked
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• Modify Article 5 to Collect Dues from Society Members in Management
Rotations Beyond 90 Days
• Incorporate Vacation Carryover Language
• Improvements to Shift Change/Lack of Notice Payments
• Parties to Agree to any Changes to an Employee's Normal/Standard Hours of
Work
• Move Band N LOU (174) into Collective Agreement
• Add Additional Arbitrators to List of Arbitrators
• Improved Work Boot Allowance
• Clarify Posting of Vacancies
• Increase Eyeglasses Coverage
• Reinstate Coverage for Over-the-Counter Drugs
• Improve Coverage for Dental Implants
• Increase Retirement Bonus
• Amend Funeral Leave Provisions
• Expedited Release of Persons Selected to Vacancies and No Loss Suffered by
Them for any Delays in Release
• Remove Relief Pay 15-Day Waiting Period
• Update Language to Pay for Training Time Beyond Normal Working Hours
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OPG Items
• Article 16 – Complaint and Grievance/Arbitration Process and Article 19 – Job
Challenges
• Article 64(b) – Non-Surplus Redeployment of Staff and Article 105 – Change
of Work Headquarters
• Article 67 – Purchased Services Agreement
• Article 65.3 – Advanced Planning
• Article 65.6.3 – Selections for Assignments Other Than Relief or Rotations
• Articles 59.3 and 60.4 – Shift Allowances
• Hours of Work and Averaging
• Article 9 – Collective Agreement Term
• Article 24 – Escalator Clause
• General Administrative Points – Review of LOUs and Midterms; Correcting
Article 59.7
OPG served the Society with notice of its intent to alter a number of practices
that it maintains, although beneficial to Society members, are not required under the
collective agreement. The Society responded with corresponding contractual demands
that are incorporated within the Society issues that are in dispute. Further, it must be
noted at this point that OPG has also moved to cancel the Award for Performance
(AFP) program that existed outside the collective agreement. The AFP program
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provided Society members with, on average, an annual salary adjustment of about
2.5%.
The collective agreement under which I have been appointed is explicit with
respect to the factors that I am to consider in rendering an award. Article 15 stipulates
that I must weigh the following:
(a) A balanced assessment of internal relativities, general economic conditions, external relativities;
(b) OPG's need to retain, motivate and recruit qualified staff; (c) The cost of changes and their impact on total compensation; (d) The financial soundness of OPG and its ability to pay.
I have assessed the respective positions of the parties having regard to the factors
identified in article 15 above, together with the long accepted interest arbitration
criteria of demonstrated need and replication.
What account then is to be taken of the Government's compensation restraint
pronouncements and their application here? Absent legislative confirmation, these
pronouncements are of no binding force or effect and, given the specific factors under
article 15 that must govern my deliberation, they can be of no practical effect either.
Except to the extent that I must take account under article 15(a) of "general economic
conditions," that might support the Government's restraint pronouncements, these
pronouncements cannot be taken into account. To find otherwise would make the
article 15 factors irrelevant and thereby undermine the acceptability of my award and
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raise grounds upon which to challenge its enforceability. The interest arbitration
awards that have spoken with respect to the application of the Government of
Ontario's restraint pronouncements are consistent with the conclusion that I am bound
by the contractual factors set out at article 15 and by the longstanding criteria used in
interest arbitration that must be implied as binding under language that establishes
interest arbitration as the final dispute resolution mechanism. These include:
• Science Centre and SEIU (August 19, 2010) unreported (McDowell)
• Participating Hospitals and SEIU (November 5, 2010) unreported (Burkett)
• University of Toronto and Faculty Association (October 5, 2010) unreported
(Teplitsky)
• Participating Nursing Homes and SEIU (September 15, 2010) unreported
(Jessin)
• Brain Injury Services of Hamilton, etc. and United Steel, Paper, etc. Workers
International Union, Local 1-500 2010 OLAA No. 581 (Albertyn)
I have decided on an application of the contractual factors set out at article 15
that a two-year term is appropriate with an across-the-board wage increase of 3%
effective January 1, 2011 and further across-the-board wage increases of 2% effective
January 1, 2012 and 1% effective April 1, 2012.
Factor (a), a balanced assessment of internal relativities, general economic
conditions and external relativities, supports these increases. The PWU, in voluntary
two-party negotiations, settled with OPG for 2011 for 3% effective January 1, 2011
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(with the continuation of its goal sharing program) and has tentatively settled with
Bruce Power for 2.75% effective January 1, 2011, 2.75% effective January 1, 2012
and 3.5% effective January 1, 2013. Arbitrator Herman has awarded 3% increases for
Society members employed by the Electrical Safety Association for both 2010 and
2011. Further, the Society and Kinectrics have in place a two-party settlement that
increases wages by 3% per annum for 2011, 2012 and 2013. Inflation is projected to
exceed 2% for both 2011 and 2012, with the evidence establishing that historically
average wage settlements across Ontario (2005 to 2009 inclusive) have consistently
exceeded the increases in the CPI for the comparable periods by amounts ranging
from .3% to 1.2% per annum. The evidence further establishes that the wage increases
for Society members at OPG during this period have outstripped average Ontario
wage settlements by amounts ranging from 0% to .6% per annum.
Turning to factor (b), OPG, in its submissions to the OEB, has estimated that
20-25% of its employees will need to be replaced by 2014 due to a rapidly aging
workforce demographic. The turnover estimate for engineering staff (represented by
the Society) ranges from 25-50% in this period. In regard to the difficulties that this
presents, OPG advised the OEB as follows:
In order to support the diverse mix of generation technologies within OPG, staff must be highly skilled, and must possess a wider array of skills than employees in many other utilities. OPG's workforce is comprised of engineers, scientists, other professional staff, and skilled trades people. Approximately 8,760 employees (73 per cent of the OPG population) require post secondary education to perform their jobs. For the majority of these, two or more years of community college or a
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university degree is required, and this education ranges from skilled technical or technologist training, to advanced university degrees in fields such as engineering and finance. The highly skilled staff are in demand across the country, and OPG must compete for these employees with Bruce Power and other private generators and energy service organizations as well as the general marketplace.
Given the foregoing, the 75th percentile link to the external market does not seem out
of line.
Factor (c) requires an assessment of the "cost of changes and their impact on
total compensation." Under this factor, account must be taken of OPG's unilateral
discontinuance of the Award for Performance program – a program that existed
outside the collective agreement. This plan had, on average, provided Society-
represented employees with an annual increase of approximately 2.5% in pay. OPG
served notice of its intent to discontinue this plan effective December 31, 2010, in
conjunction with the negotiation of this renewal collective agreement. It follows that
the cost savings to OPG, which directly impact the total compensation of these
employees, must be taken into account under factor (c). When reference is had to the
approximate 2.5% annual savings to OPG and the corresponding approximate 2.5%
decrease in the total compensation of these employees, it must be found that on any
objective assessment, the cost impact of this award is reasonable.
Finally, under factor (d), "the financial soundness of OPG and its ability to
pay," it must be found that even though being forced to operate, in effect, with one
arm tied behind its back, OPG is a profitable enterprise. OPG had a net income of
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$623 million in 2009 and a net income of $447 million for the first three quarters of
2010 (the last available reporting period). The projections are for net income
approaching $500 million per annum going forward. While there may be an element
of financial uncertainty caused by the strict parameters that apply to the scope of
OPG's operations and by the favoured treatment afforded producers of renewable
energy, the fact remains that OPG is charged with producing the base load power that
the renewable producers cannot guarantee. It follows that OPG, absent a significant
recession, will remain a profitable enterprise capable of maintaining the relative
compensation position of its employees.
When reference is had to the foregoing analysis of the article 15 factors, salary
increases of the magnitude that are to be awarded over a two-year term (3% effective
January 1, 2010, 2% effective January 1, 2012 and 1% effective April 1, 2012),
coupled with minimal other compensation improvements (see below), are both
supportable and necessary.
It became clear that the priority benefit improvement sought by the Society is
the inclusion of coverage for dental implants in circumstances where the treating
dentist advises that dental implants are the effective treatment choice. Presently,
coverage is provided where dental implants are the least costly alternative. OPG
estimates the cost of this benefit improvement at .05% of base payroll or $210,000 per
year. The Society asserts that these figures are inflated because they are based on an
estimated cost of $4,500 per implant when, in fact, dental implants range from $1,500
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to $4,500 depending upon the tooth that is being replaced. Even on OPG's cost
analysis, this is not an overly expensive item in the context of the two-year agreement
sought by OPG, especially where there are no other benefit improvements, where it is
awarded in the second year and where there has been a 2.5% takeaway. Accordingly,
while I acknowledge that this is a "breakthrough" item, I am prepared to award it as
the Society's priority benefit item commencing in the second year and as the only
benefit improvement that is awarded.
OPG served the Society with notice of intent to alter a number of practices that
it considers as providing benefits and/or entitlements that are beyond the requirements
of the collective agreement. One of these concerned the ability to carry over from one
year to the next a portion of one's vacation credits. There has been a practice of
allowing such carryover. Indeed, there is a form designed for the purpose of recording
and facilitating such requests. I am of the view that professionals should be able to
carry over a specified number of vacation days per year where to do so would not
interfere with the employer's operation. Indeed, as noted, this has been the practice.
The notice of intent was filed for the purposes of allowing OPG to discontinue the
practice. This would amount to another takeaway. In the context of negotiations where
there has already been a major takeaway (albeit outside the collective agreement) in
the form of the discontinuation of the AFP plan, I am not prepared to have this
practice discontinued. Accordingly, I am awarding the Society demand, which strikes
an appropriate balance between employee convenience and operating imperatives. As
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for the remaining notice of intent items, I am awarding that, going forward, the parties
will rely on their respective interpretations of the relevant language without regard to
the past practice under that language. In other words, the practice is not to inform the
interpretation nor is it to form the basis of an estoppel.
Turning to the Employer items, I have attempted to discern where there is real
operational need and to balance that need against the need to protect essential
employee interests from arbitrary or unreasonable Employer actions. I have attempted
to identify compromises that may have resulted had these parties been faced with
strike or lockout and thereby to apply the principle of replication. In this regard, I
have proceeded on the basis that within the confines of the Society having to protect
the essential interests of its members, both parties share a common interest in the
efficient operation of the enterprise.
In addition to a number of other issues, OPG has identified the need for greater
flexibility in assigning and/or moving individuals between various worksites in its
nuclear division, especially within Durham Region. I am satisfied that OPG has a
legitimate business interest in such flexibility and that to a meaningful extent such
flexibility can be achieved without unduly impinging upon employee interests. I refer
specifically to the OPG request to redefine the Darlington work headquarters as
including a 10-kilometre radius around the station (from 5 kilometres) under article
105 and the OPG request to amend the definition of "incumbent" under article 64(B).
However, whereas I see no difficulty in amending the definition of incumbent to
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include volunteers, I am uncomfortable with expanding the definition to include
anyone not eligible for relocation assistance. I am uncomfortable because the degree
of employee protection under article 64(B) would then be determined by where an
employee resides. Where an employee resides is a matter of an individual choice that
involves a host of family, personal and economic considerations that ought not to
determine whether an employee is entitled to avail him/herself of the article 64(B)
process. Having said this, the current application of article 64(B) is overly expansive.
I intend to remit this narrow issue back to the parties for the purpose of having them
negotiate a definition of incumbency that includes not only volunteers but also
employees subject to work location changes of less than a stipulated distance and to
remain seized.
Having regard to the foregoing, I will be awarding that, under article 105, the
Darlington site be defined as including a 10-kilometre radius around the station
(provided there is no change to the administration of the relocation assistance); the
definition of incumbents in article 64(B) be expanded to include volunteers and those
subject to a work location change of less than a stipulated distance (this issue to be
remitted back for determination by the parties with the arbitrator remaining seized);
article 65.3 be amended to make the clause applicable to work arrangements of greater
than five working days' duration; and finally, I will be awarding the incorporation of
an LOU confirming the Society agreement to averaging hours of work under the
Employment Standards Act.
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The Society argues that I am without jurisdiction to award a letter of
understanding confirming its agreement to averaging of hours of work beyond that
stipulated under the Employment Standards Act. Subsection 22(2) of the ESA states
that in order to average an employee's hours for overtime purposes, the employer must
have both an agreement with the employee and a permit from the Director. An interest
arbitrator imposes whole collective agreements. Indeed, these parties have clothed me
with the jurisdiction to make an award with respect to any and all disputes arising out
of the renegotiation of their collective agreement. The parties are free to include an
averaging provision, confirming employee agreement, within a collective agreement.
The question of an averaging agreement was the subject matter of negotiation between
these parties and ultimately a disagreement. It follows, therefore, that it is within my
jurisdiction to award where the parties are in dispute with respect to the averaging
specifics. Further, the Society's policy argument that an averaging agreement should
not be imposed because it will not be subject to ratification ignores the essential
function of the interest arbitrator – to award a collective agreement that itself is not
subject to ratification. If the issue of an averaging agreement is a legitimate matter for
collective bargaining, which it is, and if the parties are in disagreement, which they
are, it falls to the interest arbitrator to decide the issue as part of his overall award –
which is not subject to ratification by either side.
In circumstances where the parties have agreed to 74 arbitration dates for 2011,
where the parties have agreed between themselves in this round to add three
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arbitrators to the list of mutually acceptable arbitrators and where the transformative
amendments sought by OPG have not been the subject of extensive discussion and
analysis between the parties, I have not awarded the OPG proposals under article 16,
Grievance and Arbitration. This is not to say that the even-handed and efficient
operation of the grievance and arbitration procedure should not be the subject matter
of ongoing monitoring and discussion between the parties.
The parties tendered extensive briefs and made oral submissions dealing with
all the issues in dispute. I have given full consideration to these submissions. Having
regard to these submissions and to the foregoing commentary, I hereby award as
follows.
A W A R D
The parties are hereby directed to enter into a renewal collective agreement for
the term January 1, 2011 to December 31, 2012 that contains all the terms and
conditions of the predecessor collective agreement save and except that it is amended
to incorporate the following:
1. All matters agreed between the parties prior to the date hereof.
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2. Across-the-board salary increases applicable to all salary schedules as follows:
Effective January 1, 2011 3%
Effective January 1, 2012 2%
Effective April 1, 2012 1%
3. Maintain article 24, escalator clause, unchanged except for updating to reflect
the January 1, 2011 to December 31, 2012 term.
4. Effective January 1, 2012, amend dental coverage to provide for coverage for
dental implants where dental implants are recommended by the treating dentist
as the most effective treatment choice.
5. Amend article 5.1.2 to provide that dues shall be deducted and remitted to the
Society for the entire period of a temporary assignment of a Society member to
perform work outside the bargaining unit.
6. Add a new article 39.3, Leave with Pay for Remembrance Day Observation, to
read as at pgs. 57-58 of the Society's mediation/arbitration brief.
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7. Amend article 38.13 by adding the following regarding vacation carryover:
Employees will be allowed to carry over two (2) weeks of
vacation per year with the approval of the manager. Any such
request will not be unreasonably withheld.
8. Insert a clause into the collective agreement to provide that with respect to the
"notice of intent" practices identified by the Employer as part of its bargaining
agenda, except with respect to vacation carryover that has been awarded upon,
the parties agree to be bound by their respective interpretations of the collective
agreement language and not to rely upon the past practice.
9. Effective April 1, 2011, amend article 59.2, Shift Workers, to insert the
following:
Management shall provide an opportunity for input from
employees prior to establishing shift schedules.
Management will provide a minimum of seven (7) days' notice
for shift workers and non-shift workers working on shift,
when their hours of work, as shown on their shift schedule,
are to be changed. Failure to provide appropriate notice will
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require payment at the appropriate overtime rate for all
hours worked during the notice period.
In the case of a forced unit outage or for reasons of equipment
failure or safety, employees can be shift changed effective
immediately and overtime rates apply for all hours worked
during the first three (3) days.
Where a PWU represented employee working on shift receives
"Penalty" payment for insufficient notice of a shift change,
their direct shift supervisor will be entitled to the equivalent
"Penalty" treatment. For clarity, where both the Society
represented shift supervisor and the PWU represented crew
member(s) have received insufficient notice of the shift
change, the Society represented shift supervisor shall receive
the equivalent premium rates as the PWU represented
employee for work performed on shift until the notice has
expired.
Written notification, such as email, shall be provided. In
situations where the employee is absent from their regular
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work location, verbal notice shall be given and will be
followed by written notice.
Management will use reasonable efforts in revising the regular
schedule so as to provide the following minimum hours off
between shifts:
10. Amend article 66.4 to provide that a Society member will receive the increase
in salary resulting from a temporary assignment to a higher rated job from the
first day of such assignment.
11. Amend article 57.7 to read as follows:
Where management directs an employee to attend a training
course, he/she will receive overtime payment for all hours spent in
training beyond his/her standard hours of work. Management
agreement to an employee request for training does not constitute
a management direction to attend.
12. Amend article 105.2 to read:
Darlington, including a 10-kilometre radius around the station and
including the following location – 1908 Colonel Sam Drive.
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Note: Relocation assistance under Part XI of the collective
agreement will continue to be applied as if a 5-kilometre radius is
in effect.
13. Amend article 64(B) to include in the definition of incumbent "volunteers." The
parties are directed to negotiate a further amendment to article 64(B) to include
within the definition of incumbent any employee subject to a move of less than
a stipulated distance.
14. Amend article 65.3 to make the clause applicable to work assignments of
greater than five working days' duration.
15. Effective April 1, 2011, incorporate an LOU dealing with ESA averaging hours
of work approval, to read as follows:
1. In accordance with the ESA the Society consents to
employees working schedules that average hours over a
period of greater than two weeks. Specifically, the Society
agrees to average employees' hours over a period of five
weeks for A-E crews and over a period of 52 weeks for
project crews.
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2. This letter of understanding will come into effect April 1,
2011 and shall form part of the collective agreement
between the parties and shall continue in effect until March
31, 2016.
16. Retroactivity – Wage retroactivity based on all paid hours is to be paid to all
bargaining unit employees employed since the expiry of the predecessor
collective agreement within sixty (60) days of the date hereof. Any bargaining
unit employee who has left the employ of the Employer since the expiry of the
predecessor collective agreement is to be notified in writing at the address on
file within thirty (30) days of the date hereof. The retroactive payment to a
former employee is to be made within thirty (30) days of receipt of notice of
entitlement.
I remain seized to deal with any errors or omissions and with respect to the
implementation of this award. I am also seized in the event the parties are unable to
agree upon the expanded definition of incumbent under article 64(B).
Dated this 3rd day of February 2011 in the City of Toronto.