OPSEU LOCAL 702
Pension Plan Is Not Incorporated Into Collective Agreement But The Board Still Finds It Arbitrable Based On Non Discrimination Clause In Collective Agreement
Union (Union & Harasemchuk) v Kenora Association for Community Living Award dated 23 May 2003 (R.J. Roberts)
Eligibility requirements of the employer’s pension Plan required an employee to work a minimum of 700 hours in consecutive years. The Grievor did not have consecutive years solely because of her maternity leave and how it fell in the calendar year. The only mention of the pension plan in the collective agreement is that the current
plan be maintained. The collective agreement also contains a standard no discrimination clause.
The Union grieved that the pension plan was discriminatory. The case was presented at arbitration by regional grievance officer Jim Gilbert.
The Employer raised preliminary objections. First, it was claimed the pension plan was not incorporated into the collective agreement therefore any dispute was between the grievor and the insurance company, and was not grievable. The second objection essentially was that since the plan was not in the collective agreement there was no
arbitral jurisdiction to address discrimination.
The Board allowed the first objection. The Board found the Pension Plan was not incorporated into the collective agreement. However, the second objection was dismissed. The Board found that it had, by virtue of the no discrimination clause, jurisdiction to decide if the Grievor was discriminated against on the basis of sex or marital
status “even though the inquiry would necessarily involve reviewing the interpretation of those terms of the pension plan”
The Board stated :
I find that I have jurisdiction to decide whether the employer discriminated against the Grievor (contrary to the collective agreement) by entering into a pension plan with eligibility requirements that allegedly discriminated against the Grievor on the basis of her sex or family status. My jurisdiction over the alleged
breach of article 3.01 originates in the collective agreement. My jurisdiction to review the insurer’s interpretation and application of the eligibility requirements of the pension plan arises as an ancillary matter to jurisdiction. Otherwise it would be impossible to resolve the Grievor’s article 3.01 claim.
The Board directed both parties to advise Sun Life in writing of the issue and that they will be granted intervenor status should they request it should either party request a hearing on the merits.
The case is an affirmation of a union’s ability to use a grievance to enforce a non-discrimination clause against employer pension and benefit plans, whether or not the terms of those plans are incorporated into the collective agreement.
Click here for full text of decision
Attached is a headnote and accompanying decision of Roberts dated January 17, 2004.
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