Vacation Proration Arbitration Award, Members in City and Parks

Wednesday, October 14, 2020

To All CUPE 15 City and Parks Members:

RE: Vacation Proration Arbitration Award, Members in City and Parks

City and Parks members of CUPE Local 15 who have recently had their 2020 vacation entitlement prorated due to Maternity Leave, Parental Leave, or Unpaid Sick Leave should be keeping a close eye on their next pay advice!

The practice of prorating vacation for these types of leaves has ceased effective immediately and is retroactive to January 1, 2020. The City and Park Board are making the necessary adjustments to your vacation bank to reinstate any vacation that may have been prorated in the current year for these types of leaves. This does not apply to any requested unpaid General Leave of Absence you may have taken.

How did this come about?

As many of you are aware, your annual vacation entitlement has been subject to proration for maternity and parental leaves for a number of years. It has also been routinely prorated for those on an unpaid sick leave for a similar period of time.

With respect to maternity and parental leaves, this flows from very old collective agreement language specifically as follow:

10.9 Maternity and Parental Leave
(c)…………Vacation pay shall be prorated in accordance with the duration of the leave and an employee may elect not to take that portion of vacation which is unpaid.

In a 2015 arbitration award Burnaby (City) v. Canadian Union of Public Employees, Local 23 (Vacation Pro-Rating Grievance) [2015] BCCAAA No. 136 Arbitrator John Hall found that similar language was in violation of Human Rights legislation, effectively striking the offending language from the impugned collective agreement.

Upon commencement of collective bargaining in April of 2016, CUPE Local 15 filed a Policy Grievance demanding that the City and Park Board cease prorating vacation for Maternity, Parental, and unpaid sick leaves. When bargaining concluded in December of the same year, the parties referred the question of vacation proration to Arbitrator David McPhillips.

In July of 2018, Arbitrator McPhillips heard the Policy Grievance and in September he rendered his decision allowing the union’s grievance. The parties were ordered to meet to discuss potential remedies. The full text of the Award can be found here http://canlii.ca/t/j0vt4

What took so long?

The City of Vancouver and Vancouver Board of Parks and Recreation appealed the decision of the Arbitrator to the BC Labour Relations Board (BCLRB). In June of 2019, the Board overturned Arbitrator McPhillips’ award and ordered the grievance be heard by a different arbitrator.

CUPE Local 15 subsequently applied to the BCLRB for a Leave for Reconsideration that is seeking to reinstate the original Award. In January of this year, the Board determined that there was no basis for overturning Arbitrator McPhillips’ decision and reinstated the original Arbitration Award allowing the grievance. Vacation could no longer be pro-rated for the identified types of leaves.

What about members who took similar leaves prior to 2020?

While the employers and the union have had continued discussions regarding additional remedies prior to 2020, we have been unable to come to a mutually agreeable settlement. The union has secured dates for later this year to approach Arbitrator McPhillips to seek a remedy but nothing is set in stone.

We will endeavor to keep you updated on future developments. And please remember to check the vacation balance on your pay advice October 16!

In solidarity,

Warren Williams, President
John Geppert, Staff Representative
Steve Salsman, Staff Representative
Joy Tullos, Staff Representative