Canadian Labour Reporter

May 15, 2017

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 2017 ARBITRATION AWARDS May 15, 2017 in 2015. But they were all made permanent employees between February and May of that year. Svoboda's employment was ter- minated at the time of the hearing. During its 2013 and 2014 col- lective bargaining period, the company decided it wanted to change the DB pension plan it of- fered employees to a defined con- tribution (DC) scheme. All em- ployees who were covered under the DB plan saw no change, but as of Jan. 1, 2015, all new hires were enrolled into the DC plan. As well, the agreement said: "Temporary employees are not eligible to participate in the pen- sion plan." The union — International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths Forgers and Helpers, Cement, Lime, Gypsum and Allied Work- ers Division, Local Lodge D331 — grieved the treatment of the workers on Aug. 31, 2015, after they were refused acceptance into the DB plan. It argued that all of the workers were hired before the new eligi- bility kicked in, even though they were not considered full-time. If there was a disagreement between the wording of the collective bar- gaining agreement (CBA) and the pension plan, the CBA should prevail, said the union. Lafarge disagreed and said tem- porary employees were not enti- tled to any benefits and were only given hourly pay for working. It said the definition of the word "hired" meant — according to the CBA wording— "hired as a per- manent employee." The day a worker was hired was only to establish a seniority date, according to Lafarge. Arbitrator A. Robson Garden dismissed the grievance. "The union's argument that the grievors are eligible to participate in the DC plan must fail because, as of Dec. 31, 2014, the grievors were not 'regular full-time em- ployees' within the meaning of the DC plan. At that time, the grievors were still temporary employees. The grievors did not become per- manent employees until February, March and May of 2015." But the arbitrator admitted he had trouble understanding the language of the contracts. "The CBA is very difficult to in- terpret. When I first read the CBA following the reading of the state- ment of facts, I had to repeatedly return to the statement of facts as it often seemed that the two docu- ments were at odds with each other. It was easy to see how the parties could come to a disagree- ment over the meaning of the provisions of the CBA. Trying to distill mutual intent was not easy," said Garden. DB eligibility was not only gov- erned by the CBA wording, said Garden, but it was "subject to the terms and provisions of the plan," according to the CBA language. "Eligibility to participate in the DB plan is based upon the employee's 'hire date' and not on his 'seniority date,' " he said. "If section 19.01 of the CBA was the only section to be considered in analyzing the disagreement between the parties, the grievors would be entitled to participate in the DB plan as their dates of hire as temporary employees are all prior to Dec. 31, 2014. However, it is not the only relevant section of the collective agreement," said Garden. Reference: Lafarge Canada and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths Forgers and Helpers, Cement, Lime, Gypsum and Allied Workers Division, Local Lodge D331. A. Robson Garden — arbitrator. Tim Mitchell, Danielle Emmett for the employer. Clayton Cook for the employee. April 3, 2017. Greyhound bus driver refused work after 65th birthday AFTER HE took early retire- ment, a London, Ont., Greyhound bus driver wanted to continue working summers only. John Massecar had worked at the company since 1975 and took an early retirement package in 2010. As part of a letter of un- derstanding #4 (LOU) attached to the collective agreement, driv- ers had the option of bidding for summer routes "until attaining the age of 65." Because a lot of full-time drivers preferred to take vacations dur- ing summer months — which was also a busy time for the company — Greyhound instituted a policy whereby early-retired drivers could drive during summers only. Massecar exercised his option to "return to a driving position with full seniority at retirement date in the division from which (the driver) retired, for the sum- mer bid only each year" in the summers of 2011, 2012 and 2013. But when he again applied in 2014, Massecar's request was denied because he would have turned 65 in June. The union, Amalgamated Transit Union Local 1415, grieved the decision and argued it was a violation of Massecar's human rights and therefore discrimina- tory with respect to his age. Greyhound countered and said the company did not force Masse- car to retire early. If he remained on the job full-time, he could have continued to work past age 65. It said that Massecar was still free to bid on summer shifts, but he could only do so without retaining his seniority. When summer routes were offered to workers, attractive options existed for those with seniority — such as those who re- tired early like Massecar. Arbitrator Lyle Kanee upheld the grievance and ordered Masse- car to receive damages for being refused work during the summers of 2014, 2015 and 2016. "Greyhound did not assert that the age restriction was a bona fide occupational requirement. Therefore, in the absence of any statutory defences, I declare that the age restriction in LOU #4 violates the (Canadian Human Rights) Act and is of no effect. Massecar was entitled to partici- pate in the summer bids after he reached the age of 65 with his full seniority," said Kanee. "LOU #4 has the effect of with- holding or limiting access to opportunities from retired op- erators who are 65 years of age or older that retired operators under the age of 65 have avail- able to them. The distinction is made strictly on the basis of age. The early retirees are employed as seasonal operators and their employment is terminated when they reach the age of 65. Accord- ingly, the age restriction con- tained in LOU #4 is prima facie discriminatory," said Kanee. The company did have an argu- ment to offer Massecar work only during summer months — as per the LOU — but it could only go so far in its management rights to re- strict his workload. "From a strictly contractual perspective, I am sympathetic to the arguments of Greyhound. Massecar was not forced to take early retirement. If he wished to continue to work full-time past the age of 65, Greyhound would have let him," said Kanee. "Seniority is of fundamental importance in this workplace. LOU #4 bestows a valuable ben- efit on early retirees by permitting them to exercise seniority earned to the date of their retirement on future summer bids. It is discrimi- natory to strip that benefit away from early retirees strictly be- cause they have reached the age of 65," he said. Reference: Greyhound Canada Transportation and Amalgamated Transit Union, Local 1415. Lyle Kanee — arbitrator. Michael Ford for the employer. John McLuckie for the employee. April 24, 2017. < DB pension pg. 1 'Greyhound did not assert that the age restriction was a bona fide occupational requirement.'

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