Employer claimed third-party refused to ante up
Security guards working at a mining site in Newfoundland and Labrador were not given bonus payments, despite promises in the collective agreement saying payments “up to eight per cent” would be given.
The employer, Atlantic Safety Centre (ASC), had provided security services to Vale at Long Harbour, N.L., since 2014. Twelve full-time and eight part-time workers were responsible for patrolling the nickel processing plant.
The three-year collective agreement was implemented on July 28, 2015, and included a bonus statement written just below the wage schedule. The contract would not have been signed without the bonus clause included, testified Allan Moulton, union representative.
The bonus payment was to be made once each year, on the proviso that it would be paid if employees achieved a certain standard — although the details were not agreed upon at the time of signing.
But, after the first year, no payments were made.
Moulton and Mona Saunders, president and COO of ASC, discussed how best to secure the bonus wording in July 2016. However, Saunders eventually notified Moulton that because Vale had not approved of the bonus, no payments would be made.
Saunders testified that ASC and Vale eventually agreed that bonuses would be paid based on a key-performance-indicators (KPIs) scale implemented by Vale.
A change was made to the contract between ASC and Vale that settled the terms of payments based on hours worked, after the agreement was signed. But there was no such language in the new contract that mentioned the bonus payments.
Saunders sent an email to Vale on Aug. 19 that finalized the details on how the KPI would work and how the payments would be made.
Jeff Brown, senior contracts coordinator at Vale, sent a letter Oct. 24 that said: “After careful consideration of your request, unfortunately, we will not be approving bonus payment.”
The union, Fish, Food and Allied Workers/Unifor, grieved the decision on Sept. 27. It argued ASC agreed to a bonus and the fact that Vale didn’t approve it should have no bearing because it wasn’t a party to the collective agreement negotiations.
ASC countered and said because there were no express statements about how the payments would be made, or how much it would represent, the bonus was discretionary and completely up to the company to decide.
Arbitrator James Oakley upheld the grievance. “ASC is required to pay a bonus under schedule A of the collective agreement, for the period July 28, 2015, to July 28, 2016. The amount of the bonus is required to be based on performance by employees of jointly set goals of Vale and ASC. ASC is required to pay the bonus to employees whether or not Vale approves the bonus.”
Saunders’ actions negotiating the deal with Vale contributed to the confusion, according to Oakley.
“However, (Saunders) also testified that she questioned whether the bonus should be based on the workers doing their jobs or based on the workers doing work over and above their jobs. Also, when she completed the KPI form, she did not know the meaning of certain parts of the form. She did not know how the SHE (safety, health and environmental) portion of the form was to be completed. She did not know the meaning of lagging indicators and leading indicators,” said Oakley.
And despite ASC contending it could not pay the bonuses, the collective agreement’s wording had to be honoured. “There was no evidence of any discussion that payment of the bonus would be subject to financial circumstances or subject to any condition other than performance of the jointly set goals,” said Oakley.
Reference: Atlantic Safety Centre and Fish, Food and Allied Workers/Unifor. James Oakley — arbitrator. Rodney Zdebiak for the employer. Greg Pretty for the employee. Feb. 2, 2017.
