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LCBO human rights settlement arbitration award: Backgrounder and answers to common questions

We the North
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Table of Contents

Overview

Today's announcement of an arbitration award handed down February 10, 2017 is the result of the November 1, 2016 settlement of OPSEU’s 2013 complaint to the Human Rights Tribunal of Ontario. The complaint raised concerns that the LCBO’s pay structure discriminated against retail workers in the female-dominated “casual” classification, which represents 84 per cent of all Customer Service Representatives (CSRs).

The settlement in November set out several issues to be negotiated by the parties, with the final decision going to a sole arbitrator if the two parties were unable to reach agreement. Following negotiations, the two parties went through mediation and then arbitration with a sole arbitrator, William Kaplan, on February 4, 2017.

The arbitrator’s award includes the creation of a single wage grid for both full-time and casual retail workers effective November 1, 2016. The new grid is a compromise between the positions taken by the union and employer, and moving to the new grid will mean an immediate average increase of 9.5 per cent for 4,224, or just over three-quarters, of the 5,509 CSRs classified as casual workers. It will also result in an immediate average raise of 7.7 per cent for the 220 Permanent Full-Time (PFT) CSRs who are not yet at the top of the grid.

Under the award, all workers will be migrated to the new grid based on their lifetime hours worked, and will then progress through the grid to the top rate as they work more hours.

The award also gives casual workers a new guarantee of hours, which will ensure that a minimum of 50 per cent of casuals will work more than 1000 hours a year. As well, the employer will post and fill 200 new PFT CSR positions, in addition to the existing post-and-fill grievances that will continue through the normal grievance process. In addition, the Permanent Vacancy Review (PVR) process is eliminated, effective January 1, 2017, though the 2016 review will still be completed. A new post-and-fill process for all classifications will be negotiated through the upcoming collective bargaining.

During the arbitration process, the employer attempted to win significant changes to Sunday work and the ability to close retail stores and replace them with agency stores. The union resisted this in the arbitration hearing, and in the end the arbitrator gave the LCBO only a limited part of what it was after. As of April 1, 2017, retail workers will lose their shift premium for working Sundays. Additional terms for Sunday work will need to be negotiated.

When it comes to store closures and new agency stores, the arbitrator’s ruling represents a win for LCBO workers as it is significantly more limited than what the employer had sought. The final award does not lift restrictions on store closures, as the employer had asked. It does, however, set new limitations on the employer around agency stores that will significantly impact their ability to privatize alcohol sales through the agency store program. These new limits restrict them to opening a single new agency store for each existing agency store that is repatriated, or made into a real LCBO store staffed by OPSEU members.

It is important to note that the employer’s interest in increasing the number of agency stores suggests a significant shift in how the government is approaching these stores. Prior to this the Liberals had made great efforts to highlight the fact that they had not opened new agency stores since their election in 2003. This is further indication of the government’s push for the back-door privatization of alcohol sales.

The full arbitration award is available online. The key details of this award, as well as the answers to many commonly-asked questions, can be found below. Additional questions can be sent directly to OPSEU Supervisor Steve Nield by email at snield@opseu.org or by calling our hotline for LCBO members at 1-866-811-7274.

Award details

Update – May 2: the nine steps in the grid shown below have been updated to run from 1 to 9, rather than 0 to 8, since this was originally published. The grid below has the correct rates, but moving forward the first step (shows as Step 0 below) will be referred to as Step 1, and all following steps will be moved up one number, so that the last step (shown as Step 8) becomes Step 9.

New single wage grid

  • All Customer Service Representatives (CSRs), including Permanent Full-Time (PFT), Permanent Part-Time (PPT), and Casual will be placed on a single nine-step wage grid.
  • This removes the previous barrier that limited how far up the wage grid casual workers could move, and allows all CSRs to reach the same top wage rate.
  • The grid steps are as follows:

Step 0: $15.08

Step 1: $16.26

Step 2: $17.53

Step 3: $18.90

Step 4: $20.37

Step 5: $21.97

Step 6: $23.68

Step 7: $25.53

Step 8: $27.53

Placement on the new grid will be determined by hours worked.

  • All CSRs will be placed on the grid based on the lifetime number of hours worked.
  • The union was successful in arguing that CSRs should migrate to the new grid based on a calculation of 2080 hours seniority for each step, with the exception of step 0 to step 1, which will only require 1040 hours worked. The table below shows the range of hours worked to qualify for each step.

Step 0: 0 – 1,039

Step 1: 1,040 – 3,119

Step 2: 3,120 – 5,199

Step 3: 5,200 – 7,279

Step 4: 7,280 – 9,359

Step 5: 9,360 – 11,439

Step 6: 11,440 – 13,519

Step 7: 13,520 – 15,599

Step 8: 15,600 +

  • No CSR will see a decrease in seniority or hourly rate under the new grid.
  • With this new grid, approximately 77 per cent of casuals (4,224 of 5,509) will see a wage increase, with an immediate average raise of 9.5 per cent. This includes 554 long-serving casuals who will move immediately to the top of the new grid based on their lifetime hours worked.
  • As well, the 220 PFT CSRs who are not currently at the top of the grid would receive raises, with an average increase of 7.7 per cent.
  • The union was also successful in achieving the right for CSRs who disagree with their placement on the grid to challenge that placement under this agreement.

Progression up the grid will be the same for PFT, PPT and casual CSRs.

  • The union succeeded in ensuring that all workers will move from Step 0 to Step 1 after six months worked.
  • Following this, workers will move up a step either after 1750 hours worked, or every two years, whichever comes first, until Step 5.
  • From Step 5 to the top of the grid, workers will move up a step for each 2080 hours worked.

Core hours

  • The union was successful at arguing that the award needed to take into consideration precarious work, and put in place some guarantees of hours to ensure that any gain in wages wasn’t lost through a loss of hours.
  • Under this award, the employer will have to ensure that at least 50 per cent of the total number of casual employees will work more than 1000 hours each year.
  • This is close to the current average of 1,083 hours worked by casuals last year.
  • If the number falls short of this, the employer will have to increase the percentage that work at least 1000 hours the next year by the amount that they were short in the previous year.

Full-time positions

  • Under this agreement, 100 new PFT CSR positions will be posted and filled by August 1, 2017. A further 100 new PFT CSR positions will be posted by January 1, 2018 and filled by April 30, 2018.
  • The union was successful in arguing that these are new positions and should not eliminate the existing outstanding grievances, and those grievances will continue to move forward.
  • The Permanent Vacancy Review (PVR) process is eliminated, effective January 1, 2017. However, the 2016 review still needs to be completed, which may identify more PFT positions to be posted.
  • A new post-and-fill process for all classifications will be negotiated through the upcoming collective bargaining.

Sunday premium

  • The Sunday premium is eliminated effective April 1, 2017 for all CSRs.
  • The language around Sunday work will need to be negotiated between the two sides, but the award does not specifically address the employer’s request to include Sunday as a regular day of work.
  • The award does state that PFT CSR and Retail POS/Help Desk employees that do work on Sundays will be scheduled on a rotation, with none of these workers having to work more than one Sunday out of each four, to a maximum of 13 in a year.
  • These employees will not be scheduled to work a Sunday after a Saturday that is their day off, and will have two consecutive days off in the week they work a Sunday.

Agency stores

  • The award sets new limitations on the employer around agency stores, which will mean that the number of agency stores cannot increase. Under these limits, the employer can only open one new agency store for every agency store that is repatriated (replaced with an LCBO retail store staffed by OPSEU members).
  • While the employer had requested that the restriction on closing retail stores due to the operation or opening of an agency store be lifted, the arbitrator’s award did not change the rules around store closures.

Answers to commonly-asked questions

Pay and hours

Following this award, is there any difference between what PFT and casual CSRs make?

No. As a result of this award, all CSRs will be on the same wage grid. The only difference between wage rates will be based on the hours they have worked, and all CSRs will be able to reach the highest wage rate.

How many people will benefit from this new grid?

The new grid will be of benefit to all casual CSRs, who currently make up 84 per cent of all CSRs. As a result of this award, all casuals will now have the ability to reach the top wage rate of $27.53. Until now, casual CSRs were only able to reach an hourly rate of $21.07, which was the top wage rate on their separate grid.

Under the new grid, 77.5 per cent of casuals will receive a raise, with an average increase of 9.5 per cent. As well, the 220 PFT CSRs that are not currently at the top of the grid will see an increase, with an average increase of 7.7 per cent.

Does this new grid mean that there will be no wage increase on the table in bargaining?

No. As part of the settlement of the human rights complaint, the LCBO agreed that the upcoming round of negotiations is not subject to net zeroes, including any negotiations around general wage increases, in addition to the new grid.

When will I get my retroactive pay?

Retroactive pay must be paid to all workers within 90 days of the date of this award, which was issued on February 10. That means that all workers must receive retroactive pay to November 1, 2016 for all hours worked by no later than May 11, 2017. We will update members if we get further details about when these retroactive payments will be made.

What about former employees who left after November 1 – do they get retroactive pay?

Yes. All current and former employees who worked after November 1, 2016 will receive retroactive pay at the appropriate wage rate for their hours worked since that date.

Are there any changes to benefits or leave for casual CSRs?

There are no changes to these provisions as part of this award. These issues may be raised at the bargaining table through the normal collective bargaining process.

Placement on the new grid

How do I find out what my new wage rate will be?

Your new wage rate will be based on the total number of hours you have worked at the LCBO. The table above outlines the range of hours for each step. The only exception to this is that no worker can end up at a lower wage rate than the one they had before. If the wage rate that you qualify for based on this table is lower than your current pay, you will be placed at the step that is at, or above, your current pay.

What do I do if my new rate is wrong?

The union and CSRs have 30 days to challenge placement on the grid. If you believe that your new rate is not correct, based on the table above, please let us know right away by contacting OPSEU Supervisor Steve Nield by email at snield@opseu.org or by calling our hotline for LCBO members at 1-866-811-7274.

What if my new pay rate according to the migration rules is less than what I make right now?

No worker will be paid a lower wage as a result of this award. If an error has been made and you have been moved to a lower wage rate, please let us know right away by contacting OPSEU Supervisor Steve Nield by email at snield@opseu.org or by calling our hotline for LCBO members at 1-866-811-7274.

Progression on the new grid

How do I know when I will move up on the grid?

If you are migrated to Step 0, you will move up on the grid after six months worked. If you are migrated to Step 1 to 4, you will move up the grid after you work 1750 hours, or after two years, whichever comes first. Once you are at Step 5 and higher, you will move up the grid after 2080 hours worked, until you reach the top wage rate of $27.53.

Under the current agreement, progression up the grid happens on my anniversary date and is based on satisfactory work performance and attendance. How does this change?

There is no reference to satisfactory work performance or attendance in the award, and so for all full-time and casual CSRs, progression will now be based only on hours worked. Other classifications that are not affected by this award will still progress on their anniversary date and will be subject to satisfactory work performance and attendance.

Does migration “reset” the clock for earning progression on the grid? For example, if I’m at Step 0 and I’ve worked five months on November 1, 2016, do I move up to Step 1 after one more month, or do I need to work another six months?

Placement on the grid will be based on lifetime hours worked as of November 1, 2016. The clock starts again after you are placed on the new grid. That means that you need to work the time required, or hours worked required, after November 1, 2016 to move up to the next step. In the case of the example given, you would need to work an additional six months (after November 1, 2016) to move up to the next step. Once you do reach the six months worked, however, Step 1 on the new grid represents a substantial improvement over Step 1 on the old grid ($16.26/hour rather than $15.53/hour). No member will see a decrease in their wage rate as a result of this award.

Core hours

What will stop the employer from hiring hundreds of new casuals to keep existing employees from getting enough hours to move up on the grid?

The “core hours” part of the award clearly states that the employer must continue to schedule according to existing practices, and that at least 50 per cent of casual employees will receive more than 1000 hours of work annually. This is close to the existing average number of hours worked by a casual each year, which was 1,083 last year.

These two provisions will limit the employer’s ability to “flood the stores” with new casuals, and mean that casual employees should not notice a significant change in the number of hours they work.

As a casual, will this change the number of hours I get each year?

The addition of 200 new PFT CSRs may lead to some change in the number of hours available for casuals, but the rule requiring scheduling practices to continue as in the past means that casuals should not see a significant change in the number of hours they work.

Full-time positions

If the PVR process is eliminated effective January 1, what happens to PVR hours from 2016?

The PVR review for 2016 still needs to be completed. This may identify more PFT positions that will need to be posted.

What does it mean that “the parties are to negotiate a new post and fill process?”

One of the issues to be discussed at the bargaining table will be a new process to follow for posting and filling PFT positions in all classifications. With the elimination of the PVR process, the bargaining team will need to negotiate a new agreement with the employer to ensure that the employer is not simply using casuals when there is enough work for a permanent position.

Where will the 200 new PFT positions be located? Will they all be CSRs?

Yes, the 200 new PFT positions mentioned in the arbitration award will be for retail only. These are new positions, not existing vacancies. At this time we don’t know where the new positions will be located.

There were grievances already under way about unfilled PFT positions. What happens to those now?

Those grievances continue. The employer had asked the arbitrator to accept the 200 new positions and rule all the existing grievances settled, but your team argued strongly that these were two separate issues. The grievances will continue through the normal process at the Grievance Settlement Board (GSB).

Sunday work

I’m a PFT who has never worked Sundays. Does this mean that I now have to?

The award does not change the current language around the regular work week for retail employees, which continues to be Monday to Saturday. Under the terms of the award, the union and the employer will need to negotiate new language for Article 7 that will include the rotational limits (no more than one Sunday out of four) for PFT CSRs and POS/Help Desk employees. We will oppose language that would make this a required regular work day, but the outcome will depend on negotiations.

As it stands under the existing language, the available hours on Sundays would be offered to workers on the basis of seniority (PFT, PPT and then casuals), but with no premium for the work. Should there not be sufficient volunteers for the hours, the existing language states that the hours would be assigned to the least senior qualified employee.

Does this mean that all CSRs (PFT and casual) will have to work one out of every four Sundays?

No. The language is a limitation that sets the maximum limit. No PFT CSRs or POS/Help Desk employees can be scheduled to work more than one Sunday in every four, to a maximum of 13 in a fiscal year. There is no limit on the number of Sundays that a casual CSR can work.

The award says that a PFT CSR will have two consecutive scheduled days off in the week they work a Sunday. Does that mean that Sunday shifts will be full eight-hour shifts?

Under the terms of the award, the union and employer need to negotiate new language for Article 7. Through these negotiations the terms of Sunday work will need to be determined.

Agency stores

Will the employer’s right to open a new agency store if they repatriate an existing one mean they will close existing stores?

The employer has always maintained the right to close their existing stores. Under the collective agreement, however, this cannot be due to the operation or opening of an agency store. This award sets new limits and represents a win against the privatization push by the government. Under these limits, the employer can only open one new agency store for every agency store that is repatriated (replaced with an LCBO retail store staffed by OPSEU members). This means there will be no net increase in agency stores. The award did not remove the limitation on closing retail stores.

Does the fact this is in here mean the employer wanted to be able to close stores?

Yes. The union is very concerned about the employer’s expressed intention to look at closing existing retail stores. The LCBO is a socially-responsible alcohol retailer that provides significant public benefits to the people of Ontario, including providing the province with revenue from the annual dividend and taxes on sales. The government’s back-door attempts to privatize the LCBO by moving ahead with the expansion of beer, wine and cider sales through grocery stores represent the wrong direction for the province, and one that will end up costing the people of Ontario.

The expressed interest in opening new agency stores also suggests a change in how the government sees the agency store program. Until recently, the Liberals had been highlighting the fact that they had not opened new agency stores since their election in 2003. The employer’s request here suggests that they may be looking at attempting to expand the program again, which would lead to a further shift of revenue away from the public system and toward private profits.

General

How some of these items will be implemented still seems to need to be finalized by the union and the employer. What happens if the two sides can’t reach agreement?

The arbitrator remains seized on all matters that the parties deem to be in dispute. This means that either side can ask the arbitrator to rule on issues that they can’t agree on. These might be cases where the two sides disagree on the meaning of something in the award, or disagreements about how to actually implement the award. The arbitrator has also specifically included that he can rule on any challenges to where workers are placed on the new grid, and any issues around the new full-time positions.

Can we still discuss these issues at the bargaining table? If we don’t agree with some of them, can they be demands and/or strike issues?

Yes. These rulings represent the new “starting point” for negotiations on these issues, but this does not prevent the union (or the employer) from raising these issues in the course of negotiations. That will be a decision for the bargaining team to make. As with any issue raised at the table, if agreement is not reached on a new collective agreement, the union is able to strike and the employer is able to lock workers out.

We filed a human rights case about the pay of casual CSRs. Why were the Sunday premium and agency stores even discussed as part of this?

As part of the settlement, the two sides agreed to discuss the fiscal and operational challenges posed by the government’s back-door privatization of alcohol sales by allowing grocery stores to sell beer, wine and cider. The union agreed to look at the employer’s disclosures on these matters and to hear their arguments as part of the negotiations.

After reviewing the documents provided, the union took a firm position that the employer had not shown the need to eliminate Sunday premiums or the restriction on closing retail stores and replacing them with agency stores.

 Unfortunately, the arbitrator accepted the employer’s arguments on Sunday premiums, though without making Sunday a regular work day. The arbitrator also ruled that the employer had the right to open new agency stores, but only at a rate of one new store for every existing agency store that is repatriated. As noted above, we are very concerned about the employer’s expressed intentions to look at closing stores, and will continue to fight to save the LCBO as an important source of revenue for the people of Ontario.

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Download a copy of the November 1 Minutes of Settlement