Canadian Labour Reporter

November 21, 2016

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2016 November 21, 2016 ARBITRATION AWARDS the Ontario Public Sector Em- ployees Union (OPSEU) and Ca- nadian Union of Public Employ- ees (CUPE). After the merger, OPSEU took over management of the nine members of its bargain- ing unit. In April 2014, a new collective agreement was reached, and a clause was agreed upon that read "health and dental coverage for disabled employees will terminate at the earlier of 12 months from the date of any disability or the date they cease to be eligible un- der the benefits plan." On Jan. 15, 2015, five employ- ees who had been permanently disabled before the merger were advised their benefits would be terminated on June 30, 2015. The five workers all were on long-term disability under the terms of the previous agreement and were paying premiums for health and dental coverage. The workers had been permanently disabled from a range of eight to 23 years. OPSEU argued that these five employees should be considered vested under the old agreement and should continue to receive benefits. But the employer said the plain wording of the new contract and the word "disabled" meant the five would have to lose coverage. It argued the clause was based on a "go forward" basis and when any affected employees become dis- abled was irrelevant in terms of the agreed-upon language. NEOFACS contended the union should have insisted upon grandfathering in the five employ- ees to the new agreement, but it wasn't brought up by either side during negotiations. But the arbitrator ruled in fa- vour of four employees, insisting "grandparenting" was not re- quired in this case. "In my view, the right contin- ues; it was not erased by the clause in question. I come to this conclu- sion as a matter of basic collective agreement interpretation," said Russell Goodfellow. The time that the former em- ployees became disabled was under the previous contract, he said, and thus its definition did not apply to the current contract which said benefits would cease "12 months from the date of any disability." "The union was entitled to as- sume that the benefits coverage would continue. Clear and spe- cific language is required to termi- nate a monetary benefit that em- ployees have long enjoyed," said Goodfellow. The grievance was upheld for four workers but dismissed for a fifth who had resigned from the company in 2016 and was there- fore not entitled to continuing benefits coverage, said Goodfel- low. Reference: North Eastern Ontario Family and Children's Services and Ontario Public Services Employees Union, Local 665. Russell Goodfellow — arbitrator. Michelle Henry for the employer. Jennifer Micallef for the employees. Nov. 3, 2016. Attendance tracking system unfair, arbitrary: Union A point-based attendance system that required employees to pro- duce doctor's notes for every ab- sence was unfair, grieved a union. Kawneer Company Canada in Lethbridge, Alta., instituted a lateness policy after numerous attempts to craft one in tandem with the union fell short. The issue was first addressed in 2009 but de- spite multiple meetings and dis- cussions, both sides couldn't agree on one policy. So, in 2015, it implemented its own system in an attempt to ad- dress a continuing problem with its workforce being late too many times. The aluminum extrusion plant operated two eight-hours–per- day shifts and each Wednesday, managers met to plan the follow- ing week's production schedule. When workers called in sick, per- sonnel had to be shifted around to account for the absent staff mem- bers. If accommodations couldn't be properly handled, the plant was in danger of shutting down for the day, which could have cost the company $30,000 in lost produc- tion, according to Kawneer. It argued the plant atten- dance record was often spotty, especially on Fridays before long weekends. But in 2009 and 2010, Unifor grieved the attendance documenting system: "The union demands that the company pro- duce an absenteeism or atten- dance policy that's fair and equal to all members of Local 99." The company then came up with a points-based system that would give points to employees based on whether or not their missing days were properly ex- plained via doctor's note for sick- ness, or police reports if a vehicle accident was the cause of absen- teeism. It also gave points to work- ers who punched in late or failed to provide enough lead time for absences. In 2010, the union again grieved the policy and both sides promised to keep working toward a unified policy. Finally, in 2013, the company put forward a new policy that would call for progressive disci- pline to begin once a worker had amassed seven points all the way up to dismissal at 19 points. Points were automatically given for any lateness or absences, with the onus falling on the employees to convince the company to remove any assessed points. Again, in 2014, the union grieved the attendance system. A simplified points policy was is- sued in 2015 and this led to the lat- est grievance. The current system uses an automated phone-in system, Morningstar, which is tied into its Kronos swipe-card punch clock system. Absences are tracked via a phone-in system and punctuality with the punch-clock method. The union argued the Morn- ingstar system automatically as- sumed an absence was inexcus- able and it logged the employee as accumulating penalty points. The requirement that even for small sicknesses , which did not require a doctor's treatment, would necessitate the worker to obtain a note explaining the ab- sence would tax an already-over- loaded Canadian medical system, it said. "The CMA believes such an ab- sence does not require physician confirmation of illness and repre- sents an inefficient use of scarce health-care resources," the union submitted from the Canadian Medical Association's policy on short-term illness certificates. The grievance was upheld by arbitrator Andrew Sims. "The reasons given above lead me to conclude that this policy is suf- ficiently flawed to be unreason- able and needs to be replaced. Its chosen reverse-onus mechanism is the antithesis of a just cause sys- tem." "Unjustified absenteeism af- fects productivity and it is pro- ductivity that gives a unionized workforce its power and cred- ibility in negotiations. Because of that, abuse by a few can serve to disadvantage everyone in the bargaining unit. Notwithstanding that concern, this policy contains too many flaws and is, as a whole, unreasonable, and therefore con- trary to (the agreement)," said Sims. Reference: Kawneer Company Canada and Unifor, Local 99. Andrew Sims — arbitrator. William Armstrong, Patricia MacIver for the employer. Yvon Seveny for the employees. Nov. 1, 2016. < Disabled pg. 1 "Its chosen reverse-onus mechanism is the antithesis of a just cause system."

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