Employees hired first as temporary, then permanent
A disagreement about when seven workers were hired saw them turned down for participation in a company’s defined benefit (DB) pension plan.
The workers were originally hired on a temporary basis in 2014 at Lafarge Canada’s cement plant in Exshaw, Alta.
Paul Svoboda, Paul Vargas, Luke Poirer, Norbert Wroblewski, Matthew Duggan, Andrew Palmer and John Lott were employed for a fixed term that was to expire in 2015. But they were all made permanent employees between February and May of that year. Svoboda’s employment was terminated at the time of the hearing.
During its 2013 and 2014 collective bargaining period, the company decided it wanted to change the DB pension plan it offered employees to a defined contribution (DC) scheme. All employees 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 pension plan.”
The union — International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths Forgers and Helpers, Cement, Lime, Gypsum and Allied Workers 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 eligibility kicked in, even though they were not considered full-time. If there was a disagreement between the wording of the collective bargaining agreement (CBA) and the pension plan, the CBA should prevail, said the union.
Lafarge disagreed and said temporary employees were not entitled 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 permanent 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 employees’ within the meaning of the DC plan. At that time, the grievors were still temporary employees. The grievors did not become permanent 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 interpret. When I first read the CBA following the reading of the statement of facts, I had to repeatedly return to the statement of facts as it often seemed that the two documents were at odds with each other. It was easy to see how the parties could come to a disagreement over the meaning of the provisions of the CBA. Trying to distill mutual intent was not easy,” said Garden.
DB eligibility was not only governed 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.
