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_271) HearinaDURHAM REGION
Date of Award
Nov. 12, 1985
95'-031..IN THE MATTER OF THE POLICE ACT,R.S.O. 1980 CHAPTER 381 AS AMENDEDAND IN THE MATTER OF AN ARBITRATION
BET WEE N:THE DURHAM REGIONAL POLICE ASSOCIATION
(The Association)
- and -
THE DURHAM REGIONAL BOARD OF COMMISSIONERSOF POLICE
(The Board)
RE: 1985 Contract Bargaining
BEFORE: Peter G. BartonArbitrator
PLACE: Bowmanville, Ontario
DATE: November 4, 1985
APPEARANCES:
For the Association:
Dale AllanPhil AllenTom CameronTerry DelvesJohn Wilson
Aleksandr G. Bolotenko -
;
PresidentVice-PresidentDirectorDirectorDirectorSolicitor
For the Board:
Jon M. JenkinsWalter BeathDonald HouckR. AttersleyR. C. DowsettWilliam M. MercerJohn Kay
Chief of PolicePolice CommissionerConsultantChairman
Inspector
AWARD
On September 30, 1985 I was appointed by the Solicitor-
General, Ken Keyes, under s.32(1) of the Police Act to deal with
the 1985 uniform agreement between the parties. At the time
of the hearing five issues remained unresolved. The parties
requested that an Award be issued fairly quickly. Although I
have given the issues considerable thought, my reasons may be
a bit abbreviated.
The Durham Regional police force has a complement of
approximately 374 uniform members including staff sergeants and
five cadets. Of this number approximately 260 are first class
constables with an average age close to 40 years. The force
was set up on January 1, 1974 when the Regional Municipality
of Durham was created. At that time the various forces which
were then in existence in the area were merged and a single agreement
covered all officers. The municipality is a large one, stretching
from Thorah township on the shores of Lake Simcoe to Pickering,
Ajax, Whitby, Oshawa and Newcastle on the shores of Lake Ontario.
For the purposes of police administration, the municipality is
divided into at least five divisions with separate stations.
The courts which the officers attend in connection with their
business are all in the southern regions of the municipality.
Because of its proximity to the Metropolitan Toronto area, the.
municipality has seen a large increase in population in the last
few years as well as a significant increase in residential and
industrial development.
The factors relevant to matters of this sort have been
most recently considered by me in the 1985 Meaford award. I
will not specifically deal with them again except where one seems
of particular significance. As with most other police arbitrations,
2
the question of police-police comparability and the choice of forces
with which to compare the Durham Regional force was raised. It seems
to me comparisons to other regions which have similar problems of
administration and coverage is perhaps most apt.
I was aided at the hearing and in my resolution of the
matters by the able presentations of Dale Allan, President of the
Association and Donald Houck of Houck Associates. Thoroughly professional
briefs were filed and requests were kept to a realistic number.
The first Association request is for an Article to provide
for a survivor's allowance. The request of the Association is that
the spouse and family of an officer killed in the line of duty should
continue to receive the salary and benefits of that officer until
that spouse remarries or until her or she dies or until the time
at which the officer would have normally retired. This is a type
of top-up provision which the Association suggests would complement
Workers' Compensation, Canada Pension Plan and any OMERS benefits.
This is not a common benefit in that it appears to exist
in only one police agreement in Ontario the present provision for
insurance is two times annual salary, or approximately $60,000.
Fortunately, no officers in the Durham Region have been
killed in the line of duty. There is always a risk that this will
happen and wherever it happens it is a tragic occurrence. There
are only so many contingencies that a collective agreement can provide
for.My own view is that protection for a widowed spouse is better
obtained through insurance than through an open-ended liability
of this sort. It is open to individual officers to take some respon-
sibility for providing for contingencies, and one would hope that
they would do so. In the result I decline to grant this request.
3
The second Association request concens court attendance
on days off. The present Article 12 of the agreement provides
a four and one-half hour guarantee for appearance in court on a
day off. Should the officer be required to attend an afternoon
or evening session, each of these attendances carries an additional
four and one-half hour minimum guarantee. Court is widely defined
ln Article 12.4, and there is an option of time in lieu. The request
of the Association is that the first appearance guarantee be increased
to six hours. It appears that in Ontario approximately 48 forces
have a minimum six hour guarantee. The other regions are York,
Peel, Halton, Hamilton-Wentworth, Waterloo and Niagara. Of these
the common guarantee is four and one-half hours at straight time
which is the Durham guarantee. The exception to this seems to
be York which appears to have a six hour guarantee.
On balance, I do not think that the Durham provision
is out of line and I decline to grant the request.
The third association request is for a provision which
would pay mileage to officers required to attend court on their
days off. The reason for this request is that a number of officers
are stationed in the northern area of the municipality. On approximately
nine times each year, these officers are required to attend court
in the southern divisions where the courts are situated, off duty.
In addition to travel time for which no compensation is received,
there are certain mileage costs incurred. Clearly these expenses
cut into the minimum guarantees provided in Article 12. The request
is that if officers are required to travel off duty to court in
another division more than ten kilometers away, they receive .2SC
per kilometer.
4
The issue of obtaining witness fees and mileage from the
court itself was raised with the then Attorney-General, R. McMurtry
in 1984 and it was his position that there was no statutory require-
ment that the court itself pay these amounts.
The position of the Board is that there is only one Region,
i.e., Peel which does have a provision such as the one requested. It
also suggests that it would be more appropriate to calculate mileage
from the station from which the officers normally work than from their
homes.
I have considerable sympathy with this request. It seems
to me to be an appropriate one but the mechanics of it are not
particularly clear. In addition, I am not clear as to the approximate
cost of implementing such a request. Because of this, I feel it is
appropriate that I direct the parties to meet and try to negotiate
an appropriate provision. I remained seized of that issue should they
be unable to do so.
The final two requests of the Association are the most
significant. One relates to the provision of optional service in
the Type 3 Pension. The other relates to salaries. Because of the
significance of the principle of total compensation, the two requests
are inter-related in the sense that the question of the appropriate
salary will in part be determined by whether or not I grant the
optional service request. I will deal with that request first.
In 1974 when the municipality was set up, a number of police
forces were merged. At that time members of the Oshawa police force
were covered by OMERS Type 1 and Type 3 (early retirement) . The same
benefit was extended to the members of all of the other amalgamated
forces and thus from 1974 all service in predecessor~ forces and in
5
the Durham Regional force counts toward the OMERS Type I and Type 3.
The request of the Association is that the Type 3 benefit be extended
to cover optional service. 'Under the OMERS Type I Supplementary
Benefit Program, optional service can include both war service in
World War II or Korea and other government service, which includes
service in other police forces or in the military in a non-war period.
The mechanics of the provision of such a benefit is that basically
both the employer and the employee are required to buy up that past
service. What this means is that for each year of optional service
the employee must pay a certain percentage of the salary he or she
was then making with compound interest to the date at which the
service is purchased. If such an agreement is entered into, this
must be done within one year. This can amount to a substantial cost
to an individual employee, which the employee can amortize over fifteen
years. Should he or she reach retirement age before that date, of
course, the full amount must be paid up.
In addition to cost to the employee, the employer has certain
costs. These include the balance of the cost of accrued benefits to
date plus any future liabilities resulting from salary increases. The
employer cost also varies for each employee covered but a lump sum can
be calculated and the employer has the option of amortizing the amount
over fifteen years.
In the various regional municipalities, Peel, Halton and
Niagara have war service coverage. In Waterloo all optional service
is covered and there is a hybrid provision in Hamilton-Wentworth which
does cover war service and unbroken city or regional service. Thus
there is some optional service provided in 5 of the 7 regions and
none in Durham Region or York Region. This optional service has
6
normally been obtained as a result of negotiations although in 1979
this arbitrator granted war service to the Niagara Region.
There are other effects associated with the granting of optional
service. One is that past service can be purchased, as explained
above. The second is that the years for which past service is
bought up are counted as years of service for the purposes of early
retirement. Thus if a person is able to buy up 5 years of war
service for example, those 5 years count toward retirement and the
person is able to retire 5 years earlier than if such a purchase is
not possible.
The position of the Association is that a number of its
officers were either not covered by pensions in some of their earlier
employment or if covered, were not able to transfer those pension
benefits to the police force which they joined. In some cases they
were able to take out their own contribution, paying the usual tax,
but the employer contribution remained with their previous employers.
I was assured by Mr. Allan that none of the members for which this
request is made are in the position of sitting on deferred pensions
from previous employers. Thus, to grant the request, would not put
a person in the position of having double pension coverage. There
are approximately 72 people on the Durham Regional force with relevant
prior service. At the date of hearing 52 indicated that they wished
to purchase some or all of the prior service should it become available.
A list was filed and the Association undertook that if the request
was granted, only those persons on the list plus possibly Mr. Graham
would be allowed to take advantage of the benefit.
Early retirement for police officers is undoubtedly a useful
and necessary benefit. The problems of burnout, inefficiency, and needec
7
recruitment of younger officers have been well documented. Given
that the average age of police officers in this Region is now approx-
imately 40, it is understandable that they are turning their minds
to the question of retirement benefits.
A similar request was made in Sudbury last year. At that
time Professor McLaren denied the reques~ primarily because of the
existence of a restraint year, reasonably good sa~aries, and the
breadth of past service covered. He pointed out in that award that
a similar request was made in.Durham in 1980 and rejected.
The primary concern of the Board relates to cost and the
ripple effect. In terms of the latter concern, there a number of
senior officers covered by a separate agreement with the Board and
it is undoubted that if uniform officers obtained the benefit the
senior officers would request it. In terms of cost, for the uniform
officers alone, assuming the employees pay amortization costs of their
own benefits, the cost to the employer would be close to $90,000 a year
over 15 years or a lump sum of approximately $750,000.00. with the
addition of this benefit to the senior officer agreement, a matter
which is not within my jurisdiction, the cost would be a lump sum of
approximately $1,000.000.00.
In terms of cost to individual officers, it is clear that
as of January 1, 1985 at least, the cost can be quite high. One officer
for example who would be in a position to purchase 21 years of service,
would do so at a lump sum cost of approximately $60,000.00. The
employer cost would be $66,000.00. In all cases the employer cost
exceeds the employee cost.
It is apparent to me that the provision of this benefit
has been the.matter of considerable acrimony between the parties.
8
Indeed, the focus of negotiations this year was the optional service
benefit. I draw from this the conclusion that the Association has
made its own political decision to seek a benefit for 20% of its
members at some cost to the remaining 80%. Although OMERS offers
an option of purchase of war service only, the Association did not
request a partial Award.
As is no doubt apparent from past history, I have considerable
sympathy with requests for war service supplements. I do have some
difficulty with the theory that peace time military service can be
equated with police service from the point of view of stress and
the need for early retirement. Thus in terms of years counted towards
retirement, I have some resistance to including this time, given
that individual officers chose to change jobs. In terms of other
police service in forces other than those which became part of the
region, I am reasonably sympathetic toward crediting those years
toward retirement.
The other difficulty I have with this request is that although
the amortized cost is approximately 1/2 of 1% of salary, the employer
would be locked into that amount for 15 years. To grant the request
this year would be to depress salaries by at least that much and I
have absolute assurance that a few years down the road, that 1/2 of
1% would be forgotten and an argument would be made by the Association
for catch-up on salaries. In reality therefore, a significant cost
to the municipality is involved. Given those views, particulary the
former, I deny the Association request.
In terms of salary, the Association requests an increase
from the first class constable rate of $32,850.00 to a final 1985
rate of $35,222.00. A comparison is made to other forces in the
9
province with the strength of 200 or more. The request is a 4.2%-2.9%
split amounting to 5.7% increase. The actual increase would be 7.1%.
The Board, on the other hand, compares salaries with various regional
municipalities and suggests a 4%-1% - 1.287% increase to a final salary
of $34,950.00 with an actual increase of 6.287%. It is pointed out
that in terms of other benefits, with of course the exception of
optional service, Durham is highly competitive with forces in other
regions.
At this time both Halton and Waterloo are in the process
of arbitration. I do not know what the result in those matters will
be. I do agree that in terms of salary, a comparison with other
Regions is most appropriate and that a final salary in the range of
$35,000.00 is most fair. Looking at the increases in the various
regions, it is clear that Peel, Niagara, Hamilton-Wentworth and
York all come in just over $35,000.00. It is my award that a
percentage increase across the board of 4% as of January 1, 1985 and
2.5% compounded as of July 1, 1985 be implemented.
The parties were able to resolve a number of issues and a
list of these appears on page 12 of the Association's brief. These
agreed issues are part of this Award. I remained seized of problems
that might arise concerning implementation and particularly concerning
the issue of court mileage.
DATED AT London, Ontario
this \1- day of November, 1985.
Pete~G. BartonArbitrator
Recommended