Board backs workers on seniors’ benefits

End of mandatory retirement raised other issues

An Ontario arbitration award made by Brian Etherington has ruled in favour of five city workers in London, Ontario who were denied full benefits after they turned 65.

The union that represents them, CUPE, Local 107, filed a grievance against the city after the employees were told they were no longer entitled to certain dental, vision, disability and life insurance benefits. The issue stemmed from the abolition of mandatory retirement at 65 under amendments made to the Ontario Human Rights Code in December 2005 (the amendments came into effect in 2006).

Although the changes make it illegal for employers to terminate senior workers on the basis of age, they do allow employers latitude to provide lesser benefits to workers over 65.

“We were flabbergasted,” said CUPE national staff representative, Fred Blake. “Why is one a form of discrimination but not the other?”

The City of London argued its insurance policy would not cover extended benefits for senior workers. The union countered that the language of the collective agreement did not distinguish between employees on the basis of age. The agreement, ratified several months before the amendments came into effect, provides substantive benefits for “all employees” and “permanent employees.”

The board agreed that the amendments cannot override the “plain, ordinary meaning of the language” used in the collective agreement.

“The amendments to the Human Rights Code may enable employers and unions to make distinctions that disadvantage senior workers in their entitlement to benefits,” the panel wrote. “But it does not mandate it or require use to read such a limitation into existing general contract language,”

The collective agreement did, however, spell out limitations for other benefits, such as long-term disability.

The panel ordered the city to compensate two of the senior workers who had been forced to pay out of pocket when their benefits were cut off. Blake says this was a significant decision for the union.

“An employee is an employee is an employee,” he said. “After 65, why are they being treated as second class citizens?”

Sue Miller, manager of rewards and recognition for the City of London, said she can’t comment on the decision because the award is being finalized and implemented. Neither side will say how much is owed.

Blake said most employers and unions in Ontario have managed to reach agreement on benefits for senior workers, but not without some struggles.

“It’s been an issue with all workplaces since the legislation came about, though it’s now dying down a bit,” he said.

Still, with an “upward spiral” of senior workers either staying in the workforce, or being recruited back into it, Blake said the issue is not going away.

“It would seem to me that when you look at the overall cost, it’s not a big one in the grand scheme,” he said. “We represent about 1,400 inside and outside workers, and the amount of people past the age of 64 is not even one per cent.”

Blake said the decision could influence the language of future collective agreements, but notes non-unionized workers, or those without a contract, are still vulnerable under the amendments to the Human Rights Code.

In July 2009, Nova Scotia was the last province to enact legislation to end mandatory retirement. Like Ontario, many provinces do allow for age-based distinction for some benefits. Only about six per cent of workers in Canada stay on the job after 65, with 62 as the average retirement age.

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