IN THE MATTER OF AN INTEREST ARBITRATION CHILDREN S AID SOCIETY OF TORONTO. and CANADIAN UNION OF PUBLIC EMPLOYEES

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1 IN THE MATTER OF AN INTEREST ARBITRATION BETWEEN CHILDREN S AID SOCIETY OF TORONTO and ( CAST ) CANADIAN UNION OF PUBLIC EMPLOYEES ( CUPE ) SOLE ARBITRATOR: John Stout APPEARANCES: For CAST: Mark Mason, Hicks Morley Andrea Lyttle, Manager Labour Relations David Fleming, Director Intake Services Mark McDermid, Child Welfare Supervisor For CUPE: Sarah Ryan, Presenter Paul Edwards, National Representative Aubrey Gonsalves, President Local Ricardo Theoduloz Harry Carter HEARING HELD IN TORONTO, ONTARIO ON JANUARY 21, 2016

2 INTRODUCTION [1] I was appointed by the parties to resolve all issues remaining in dispute between them with respect to a first collective agreement. [2] The parties filed extensive and well organized briefs presenting their positions on the issues remaining in dispute. The hearing took place on the evening of January 21, FACTUAL BACKGROUND [3] The CAST is the largest organization providing child protection services in the province of Ontario. CUPE has long represented approximately 600 daytime employees employed by CAST. [4] On April 6, 2010, CUPE was certified to represent all employees of CAST known as Emergency After Hours Service Workers (EAHS). Generally, EAHS workers respond to all after hours calls and provide necessary services to ensure the safety and wellbeing of children, under CAST s mandate, until day staff are available the next business day. [5] Prior to certification, the EAHS workers were not considered employees of CAST. Rather, the employment relationship was akin to a dependant contractor relationship based on a fee for service. This fee for service relationship continues due to the statutory freeze provisions of the Labour Relations Act, 1995 (as amended). Once the first collective agreement is entered into, the EAHS workers shall become employees. [6] Currently, there are 22 individuals in the bargaining unit and it is agreed that the nature of their employment is casual. The EAHS workers are scheduled based on their availability. 2

3 [7] The negotiations between the parties has been long and drawn out. The parties commenced negotiations back in 2011 and conciliation was filed for in December The parties negotiated on 27 dates and while they were able to agree to many items, they were unable to resolve all issues in dispute. A No Board report was issued and CUPE took the EAHS workers out on strike on July 27, [8] On August 29, 2015, the parties signed a Memorandum of Settlement (MOS). CUPE agreed to neutrally put the MOS to a ratification vote. The EAHS workers voted against accepting the MOS terms. [9] On October 7, 2015, CAST applied to the Ontario Labour Relations Board, seeking first contract arbitration. On October 26, 2015 the parties signed a back to work protocol, agreeing to refer all outstanding issues to me for resolution. [10] At the hearing on January 21, 2016, the parties agreed that I could exercise discretion and provide for a term that is longer than two years from the date on which it is settled. [11] In making my decision, I have carefully considered the parties submissions. Keeping in mind that this is a first collective agreement, I have applied the well accepted general principle of interest arbitration that an arbitrator s award should replicate the results the parties would have reached had they freely negotiated a collective agreement. I have also applied the generally accepted principles of total compensation and demonstrated need. AWARD [12] I hereby direct the parties to enter into a first collective agreement that contains all items previously agreed as well as the following: 3

4 A. DISCIPLINE AND DISCHARGE: A claim by a worker than s/he has been unjustly discharged or suspended without pay shall be treated as a grievance if a written grievance is filed with the Employer at Step #2 of the grievance procedure within ten (10) days after the date of discharge or suspension without pay At any meeting where the Employer intends to suspend without pay or discharge an employee, the Employer will advise the employee of his/her right of union representation by any of the five individuals identified in Article (names will be provided to the employee). The Employer will confirm the time and location of the meeting after considering the employee s availability and the employee will be paid for time meeting with the Employer if he/she is brought in during off duty hours. The Employer will follow up with this right of union representation in writing as appropriate Any letters of discipline shall be placed on the personnel file for eighteen (18) months. It shall be removed in the event there are not any further incidents of discipline. Copies of such letters shall be provided to the Union. This eighteen (18) month period shall be extended by the length of any leaves of absence in accordance with Article 11 for up to six (6) additional months. B. LEGAL LIABILITY: The Employer shall provide protection to employees for all reasonable costs and expenses incurred directly in the defence of charges of a criminal nature (excepting the Highway Traffic Act), civil lawsuit and proceedings before the OCSWSSW arising directly out of or during the performance of authorized Employer duties provided that: (a) The employee is acquitted/exonerated of the charges; (b) The incident leading to charges occurred during the course of the employee s job duties; (c) The limit of the legal expense liability is one hundred thousand dollars ($100,000) per person; (d) The employee has carried out the Employer s mandate to provide child welfare and/or service in good faith and in a professional manner; and following relevant statutes, standards and/or the direction of the Employer; and (e) The employee has not committed a serious breach of dereliction of said duties and/or responsibilities. 4

5 C. LETTER OF UNDERSTANDING RE: WORKLOAD: Any issues related to immediate excessive workload shall be discussed with the duty supervisor. In cases of general workload concerns, the employee shall document (a form may be developed to facilitate this process) and identify these concerns in advance of meeting with his/her supervisor to discuss same. D. LETTER OF UNDERSTANDING RE: WORK SCHEDULE/MASTER SCHEDULE Three (3) months following ratification of the Collective Agreement, and every year thereafter, there shall be a team meeting arranged for the purpose of discussing the master schedule in order to collect feedback from the team and for the Employer to determine whether any changes to the master schedule are appropriate. E. WAGES: Date of award Working $31.82/hr and Backup $12.00 October 1, 2016 Working $32.00 and Backup $12.50 April 1, 2017 Working $32.50 and Backup $13.00 October 1, 2017 Working $33.00 and Backup $13.50 October 1, 2018 Working $33.50 and Backup $13.75 F. RETROACTIVITY: The Employer will pay $1,500 per employee as of the date of this award, less all deductions required at law, in lieu of all retroactivity. Payment to be made within 30 days. G. DURATION: This Agreement shall remain in full force and effect from the date of the award until the 31st day of March, 2019, and shall automatically continue in effect thereafter for annual periods of one (1) year unless either party notifies the other in writing within the period of ninety (90) days prior to the expiration date of its desire to amend or terminate the Agreement. 5

6 [13] Unless specifically addressed in this award, all outstanding proposals are dismissed. I remain seized to deal with any errors or omissions and the implementation of this award until the parties execute a collective agreement. Dated at Toronto, Ontario this 21st day of February, John Stout Arbitrator 6

7 IN THE MATTER OF AN INTEREST ARBITRATION BETWEEN CHILDREN S AID SOCIETY OF TORONTO and ( CAST ) CANADIAN UNION OF PUBLIC EMPLOYEES ( CUPE ) SOLE ARBITRATOR: John Stout APPEARANCES: For CAST: Mark Mason, Hicks Morley For CUPE: Sarah Ryan, Presenter Paul Edwards, National Representative

8 SUPPLEMENTARY AWARD [1] I was appointed by the parties to resolve all issues remaining in dispute between them with respect to their first collective agreement. My appointment is in accordance with a Back to Work Protocol, agreed upon by the parties on October 26, The Back to Work Protocol ended a strike by the Union s members (EAHS workers). [2] A hearing was held on January 21, The parties filed comprehensive briefs and made submissions on all the issues in dispute. [3] On February 21, 2016, I issued an Award. [4] On March 18, 2016, I was contacted by the Union requesting clarification of my Award with respect to retroactivity. This Supplementary Award addresses the Union s request for clarification. [5] In my February 21, 2016 Award, I indicated the following with respect to retroactive payments: RETROACTIVITY: The Employer will pay $1,500 per employee as of the date of this award, less all deductions required at law, in lieu of all retroactivity. Payment to be made within 30 days. [6] The Union requested that I clarify whether my Award with respect to retroactivity was in addition to any amounts that might be payable under paragraph 6 of the Back to Work Protocol. Paragraph 6 of the Back to Work Protocol provides as follows: 6. Without prejudice to any positions the Parties may take during the arbitration process, the Employer agrees that any agreement on wages (sic) rates will be retroactive to the date of the return to work for those member of Local who remain with the Employer as of the date of the arbitrator s award. For greater certainty, it is understood and agreed that it is open to the Union to argue that retroactivity should reach back to 2

9 a date that pre-dates the return to work after the work stoppage, and it is open to the Employer to argue that retroactivity should be for a shorter period than any proposed by the Union at arbitration, or not commence until the date of the return to work after the end of the work stoppage, i.e. the Employer cannot ask the arbitrator to vacate the agreement that retroactivity will begin no later than the return to work date. [7] Also relevant to this matter is paragraph 7 of the Back to Work Protocol, which provides as follows: 7. If the parties are unable to agree on how to apply the agreement on retroactivity to actual monies paid to the members of Local , this question will be submitted to the arbitrator. [8] At this point, it should be noted that prior to certification, the EAHS workers were not considered employees of CAST. Rather, the employment relationship was akin to a dependant contractor relationship based on a fee for service. This fee for service relationship continued during the statutory freeze provisions of the Labour Relations Act, 1995 (as amended). It was agreed that once the first collective agreement is entered into, the EAHS workers would become employees and be paid an hourly wage rate. [9] At the hearing, the parties made full submissions on the issue of retroactivity. The Union sought retroactive payments back to January 22, 2013, for all EAHS workers and argued for individual calculations. The Employer argued that no retroactivity should be paid to any EAHS workers. The Employer submitted that retroactive pay should not be granted due the the length of negotiations. The Employer took the position that it would be difficult, if not impossible, to calculate any retroactive payment based on the fact that the prior system of remuneration was not hourly. In the alternative, the Employer suggested a lump sum payment of $ payable to each employee. [10] As indicated above, I awarded a lump sum payment of $1, per employee. To be clear, my Award encompasses any and all retroactive amounts that may have been payable to EAHS workers, both before and after the work stoppage. 3

10 My Award resolved the dispute between the parties under both paragraphs 6 and 7 of the Back to Work Protocol regarding the payment of retroactive wages and the actual amount of monies to be paid to EAHS workers. [11] I remain seized to deal with any errors or omissions and the implementation of this award until the parties execute a collective agreement. Dated at Toronto, Ontario this 7 th day of April, John Stout Arbitrator 4