����ֱ��

Saskatchewan’s appeal court has ruled in favour of the International Brotherhood of Electrical Workers (IBEW) Local 2067 that supports an arbitrator’s decision in a dispute that reaches back more than a decade and saw IBEW members lose out on vacation pay.  

The dispute is rooted in a 2013 collective bargaining agreement (CBA) where a memorandum note moved the way that vacation pay was paid on extra work done by IBEW members working for Saskatchewan Power (SaskPower) projects from bi-monthly payments to an annual payment system.  However, SaskPower took the note to mean it paid for less extra work. 

Extra work, according to court records, is any work over and above what is normally performed by an employee and includes such items as overtime, substitution, height pay, insufficient notice, helicopter pay, Saturday night shifts, temporary instructor duties, travel time and other items.  

The March decision by the Saskatchewan Court of Appeal is the third ruling favouring the union’s position in what has become a long drawn out battle.

SaskPower issued a statement through its media relations department which said: “SaskPower has no comment at this time as the matter is still before the arbitrator.”

The union, which did not respond to requests for an interview, lauded the ruling on its website.

“This means members at SaskPower should begin getting paid for all ‘extra work’ they performed and some may receive retroactive payments covering the period from January 2015 to now,” the news posting said. “SaskPower should now be returning to paying members as it did before 2013.”

Both sides have interpreted the 2013 CBA note differently. The union maintained it only altered when vacation payment on extra work should be paid out.  SaskPower saw it broader in scope.

“It took the stance that the note reduced the amount of vacation pay for many of its employees and that Article 17.0-1 represented the union’s concession in exchange for SaskPower agreeing to a new classification scheme and pay system for the affected employees,” appeal court records state.

According to the union, that equated to one or two days pay for affected members per year. In January 2015, it filed a grievance with SaskPower for underpaying members for extra work. Mediation and other consensual bargaining methods failed and mid-2021 seasoned arbitrator William F.J. Hood was appointed.

However, before the arbitration, the parties agreed to bifurcate or divide the dispute.

“It is common ground that no evidence was adduced at the hearing concerning damages or the appropriate monetary remedy,” the court documents said. 

At issue was the note’s meaning and whose interpretation was correct.   

Hood’s ruling was not made until two years later in 2023 and it came down in favour of the union but parties were left to determine the monetary remedy with some key considerations such as how far back the ruling should apply, the timing of the reimbursement, whether former employees are included and the impact of the delay up to the time of the arbitrator’s decision.

The arbitrator was available if needed to help settle these issues.

When the arbitrator’s decision landed in favour of the union, SaskPower applied to the King’s Bench Supreme Court to have a judicial review. The union applied to have the motion tossed out on the grounds it was premature to review as final discussions with the stakeholders had not concluded on the remedy.

The King’s Bench Chambers judge agreed with the union’s position that it was too premature to do a review, but SaskPower took the lower court decision to the province’s highest court on appeal.  

The Saskatchewan Appeal Court upheld the lower court decision and dismissed SaskPower’s appeal in March. In the ruling the appeal justices sided with the Supreme Court’s Chambers judge, who maintained while the judicial review was premature, other factors came into play.

The Chambers judge ruled it was better to let the process run to its conclusion than quashing the arbitrator’s decision and restarting the process, which was not in the best interest of either party.

The Chambers judge also noted it had taken two years to come to a finding after arbitration had started and that the arbitrator was possibly retiring and a new arbitrator would have to come up to speed on the proceedings.

“Also relevant to the Chambers judge was the undisputed fact that the parties had agreed to bifurcate the proceedings and that they need to respect the grievance process,” the appeal court reasoned.

The Chambers judge also rejected SaskPower’s argument their agreement to bifurcate reflected an implied or tacit agreement for judicial review to take place following the liability phase.  

The Chambers judge noted when the bifurcate agreement was concluded, there was still time for a judicial review if needed.

“The court of appeal directed the parties to return to arbitrator Hood to decide on a remedy,” the local said on its website. “We know that our CBA was breached and SaskPower owes many members some money.”