N ov gy-Ol7 - Police Arbitrationpolicearbitration.on.ca/search/documents/awards/84-017.pdfI -23CZ)...
Transcript of N ov gy-Ol7 - Police Arbitrationpolicearbitration.on.ca/search/documents/awards/84-017.pdfI -23CZ)...
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-23CZ) Hearing Date of award .. - WATERLOO Nov .24 ,1984 .
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IN THE MATTER OF AN ARBITRATION HEARINGI
BET WEE N :.
WATERLOO REGIONAL POLICE ASSOCIATION
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(Hereinafter referred to as the "Association")I
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WATERLOO REGIONAL BOARD OF COMMISSIONERS OFI
POLICE
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I SOLE ARBITRATOR: Richard H. McLaren
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COUNSEL ON BEHALF OFI THE ASSOCIATION: R. Van Dalen
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COUNSEL FOR THE BOARD: E. L. MooreI
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A HEARING IN RELATION TO THIS MATTER WAS HELD AT WATERLOO, ONTARIOON SEPTEMBER 28TH, 1984.
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AWARD
Following the Notice of Intention to Bargain the parties
met to negotiate a new contract on April 2nd, 1984. It was not
until May 10th that briefs were exchanged and preliminary
discussions held between the parties. The total extent of the
negotiations between the parties entailed three short meetings.
Two were held in May with a bargaining session on June 26th after
which these binding arbi tration proceedings under the Police Act
R.S.O. 1980, c. 381 were commenced.
The hearing in connection with this interest arbitration
was held at Waterloo, On tar io on September 28th, 1984. At that
time the parties agreed the arbitrator had jurisdiction to
determine the matter. There were no preliminary objections as to
proceeding at that time.
There are a number of issues remaining in dispute. They
are:
Salaries; Established Complement, Acting Ranks;
Court-Time Pay; Hours of Work; Statutory Holidays; Association
Meetings; Vacations with Pay; Exemption from Foot Patrol Duty;
Layoff and the Complaint and Grievance Procedure. Each issue is
dealt with under separate heading below.I
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SALARIES - Article 4.01
'The Association is requesting a 6.5 percent increase
across the Board for salaries. The Board has offered a 5 percent
increase across the Board.
Both negotiated and arbitrated wage rates in 1984 for
police have clustered around the 5 percent mark. The Association
puts no compelling case forward for an increase which ought to be
above that rate. Negotiated settlements for 1984 with the City of
London, the Ontario Provincial Police, the Hamilton-Wentworth
Police and a number of smaller police associations have resulted
in settlements at or below 5 percent. It is determined that there
is no justification for .an increase in salaries in the case of the
Waterloo Regional Police of greater than 5 percent. It is ordered
that a 5 percent across the Board increase be applied for the 1984
contract.
There is a related issue under article 4.01 involving
salaries. The Association requests that officers assigned to the
youth bureau be included in article 4.01. The inclusion would
qualify them for the bonus pay that is provided for other officers
who work in the plain clothes divisions.
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In the mid-seventies as a result of collective bargaining
the former juvenile officers (now known as youth officers) were
removed from the scope of article 4.01. The request to reinsert
them in the article is based on the desire of the Association to
recognize the investigative work which they perform.
Considerable viva voce evidence was called on the point.
That evidence reveals that in substantial measure the youth
officers do the same work as detectives except for the fact that
the age of the offenders is younger. The forthcoming
implementation of the Youth Offenders Act in April of 1985 will
enhance the comparability of the work.
The data provided by the Board indicates that the
addition of the youth bureau to article 4.01 would affect 13
officers. In 1984 it would cost $28,821.00 for a total
compensation increase of .18 percent.
The distinction between the plain clothes constables and
the youth bureau is at present obscure. It will tend to be
obliterated in the near future with the introduction of the new
youth legislation. In recogni tion of these facts it is ordered
that the request of the Association be granted.
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ESTABLISHED COMPLEMENT, ACTING RANKS - Article 6.02
The Board requests that arlticle 6.02 be redrafted to
limit its operation. A redrafted article would limit acting rank
pay to those who make immediate decisions. Those who do
housekeeping duties during the absence of more senior officers
would not obtaip benefits of acting pay at the higher rank.
It is a widely recognized principle that when an employee
steps into another employees job which is paid at a higher rate;
the substitute employee receives the higher rate of pay while
doing the job. For this reason the request of the Board is
rejected. There is to be no change in,article 6.02
New Article 6.03
The Association requests the insertion of a new provision
dealing with the calculation of pay where an officer is relieving
a more senior officer because of the absence of that officer. It
is the desire of the Association that such payment be applied for
the whole day for those officers who fill-in on an acting basis
for only part of the day.
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It is the argument of the Association that the acting
rank's responsibility does not stop ab the overlap of shifts. The
responsibility continues but the acting pay ceases. There is some
continuing effect when the individujl returns to perform normal
duties. However, it does not seem to justify the additional pay
associated with the acting rank. Whln the responsibility .ceases
the pay should also end. The request of the Association is denied.
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COURT TIME PAY - Article 10.01
It is the submission of th1 Association that the time
paid to a member for appearance in Court ought to be changed from
the current four hours at straight tile to three hours at time and
one-half. The effect is to change the provisions of the
Collective Agreement to 4 1/2 hours 10f straight time versus the
present four hours.
It -is the position of the Association that Court
l .hours constltu es burden
disruption to the private life of members. It is something which
is unique to the police occupation ln being required to forego
leisure hours to satisfy the requirements of their vocation.
appearance on off-duty t a maJor and
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It appears to the arbitratbr that this provision has
worked adequately between the parties. It has caused no major
difficulties which have been in the brief of theident~fied
Association. The argument must be that 3 hours at time and one
half equalling 4 1/2 hours of straight time is consistent with a
large number of other police COllelctive Agreements. This is
demonstrated in the data provided on page 82 of the Association's
brief. For this reason the of the Association isrequ~st
accepted. Article 10.01 should be altered to read that officers
and cadets attending Court on off hours will recei ve a minimum
credit of 3 hours at time and one halfl
Article 10.03
The second aspect of the cdurt time issue between the
parties is associated with article 10.03. Article 10.03 provides
that an officer who is required to attend Court during annualI
leave be paid 16 hours Court-time for any day in which he appears
to do it. It is the request of the As~ociation to add to this
provision a reference to days off prior to or immediately after
annual vacation. In effect the thrust is to treat those days as
being part of the annual leave for fhe purposes of calculatingcompensation when attending court on those days. This request is
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being prompted by the implementation of the. compressed work week.
Prior to its introduction all annual leave was signed by the week
based on a Sunday to Saturday period. The compressed work week
requires that officers take off the full working block of time.
They cannot I therefore, protect themselves against Court
appearances immediately prior to or f6110wing vacations.
The submission of the Board is that the problem rarely
arises and is not one which ought to be dealt with by the
arbitrator.
The Board has also made a request in respect of Article
10.03 that the payment for Court tim~ during annual leave be
restricted to the first day wi th subsequent days to be paid at
straight time. The thrust of that argument is to the effect that
a major disruption occurs on the filrst day and subsequent days
ought to be simply treated as pay at straight time.
The arbitrator finds that the article has worked well
between the parties and there is no significant reason for a
change. The request of both the Association and the Board in
connection with article 10.03 are rejected. It is to remain
unchanged.
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HOURS OF WORK - Article 12.01
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The present hours of work provision provides that the
I work week is to consist of 5 days at 40 hours per week. Days of f
are to be granted consecutively except in the case of an emergency.I
The Association proposes that there be only one shiftI
change per fortnight. The arbitrator notes that such a request is
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was considerable viva voce evidence on this particular matter. ItI
reveals that members working in the detective, identification and
youth bureaus are required to change shifts as often as four timesI
in a two week period. Frequently these officers are required to
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evidence of the expert witness, Mr . J. C. Shearer, on behalf of
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the Association indicates that the nature of the shift aspect of
police work takes a toll in terms of personal fatigue and familyI
relations.
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A provision in the Collective Agreement which will
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encourage management to try to schedule in such a fashion as to
prevent these shi ft changes is desirable from both parties pointI
of view. The request of the Association will provide a financial
disincentive to deter such scheduling practices. The officersI
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and cadets should only have one shi ft change schedule per work
week aside from emergencies. Overtime rates shall be applied for
the additional shifts worked in a scheduled period. It is ordered
that the Association I s request be granted. The two sentences to
be added to the existing wording of Article 12.01 should read:
"Officers and Cadets shall only have one shiftchange scheduled per fortnight.
Due the the exigencies of the service, shouldmore shift changes be required, overtime rateshall be applied for the following shiftworked."
STATUTORY HOLIDAYS - New Provision to the Article 20.03
The Association requested that a new provision be
inserted in the Collecti ve Agreement dealing with the payment to
be received by an officer who is required to perform his duties on
a statutory holiday. The request is for premium rates on
statutory holidays.
The Association brief makes the point that most other
types of occupations provide for premium pay when an employee is
required to work on a statutory holiday. In addition there are 68
police departments in the province in which there is premium pay
for working on a statutory holiday.
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It is the Board's position that under article 20.01 each
officer receives 12 days holiday per year in lieu of statutory
holidays. The typical pattern is a one week winter vacation and
seven days pay. The present scheduling is such that most officers
ordinarily work about 8 of the 12 statutory holidays in a year.
Pol ice of ficers have an occupation which requires that
there be 24 hour police coverage through out the 365 days of the
year. They knew the obligations of that occupation at the time of
becoming a police officer. It is, therefore, somewhat unrealistic
to cite that others get premi urn pay for working on statutory
holidays. Others have an expectation of having statutory holidays
off. Police from the time of entering' the occupation never had
such an expectation.
The cost of implementing such a scheme is in the vicinity
of $180,000.00 representing a total compensation cost of
approximately 1.4 percent. Such a request would be a significant
addi tion to the salary and related increases already awarded by
this award. There is no justification for the change. The
request of the Association is rejected.
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ASSOCIATION MEETINGS - Article 21.01
It is the request of the Board that article 21.01 be
redrafted so as to make it clear that members cannot reschedule
days off which happen to occur during a convention. The
Association in its rebuttal makes a request that the provision be
amended so that each member be permitted to have two days off one
prior to and one immediately after the convention.
The article has worked satisfactorily in the past. There
has been an administrative interpretation placed on the article
which has enabled it to work. The request of both parties is
rejected. Article 21.01 is to remain unchanged in the new
Collective Agreement.
VACATIONS WITH PAY - Article 27.01
It is the request of the Association that article 27.01
be changed to permi t a 5th week of vacation after 16 years of
service rather than the current 19 years of service. The primary
justification is based upon the need of older officers to find
relief from the rigors of law enforcement and the stress, strain
and fatigue associated with the work. Once again, the expert
testimony of Mr. Shearer is of assistance on this point.
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The request for an increase of vacation enti tlements is
consistent with a number of other police agreements in the
province as indicated in the Association's brief on page 101.
However, in reviewing data on the larger forces having regional
police departments the norm seems to be somewhat closer to that of
the present Collective Agreement.
It is the finding of the arbitrator that the reduction
ought to occur at 17 years which is consistent with the
Hamilton-Wentworth Regional Force as well as the Metropolitan
Toronto Force. Therefore, it is ordered that article 27.01 be
amended to permi t the 5th week of vacation enti tlement to occur
after 17 years of service.
EXEMPTION FROM FOOT PATROL DUTY - Article 28
The Board requests that the provision dealing with
assigning a member foot patrol duty be deleted. It is the
position of the Board that the number of officers who have some
disability is such that it is increasingly difficult to find light
duties for all of them.
One of the consequences of a layoff and seniority clause
is that layoff may occur due to lack of work. An employee who is
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unable or unwilling to do work may be laid off. Therefore, there
is no need for the deletion of Article 28. It does not
specifically deal with light duties. It precludes the assigning
of disabled members to foot patrol duty without their consent if
the individual has attained the 50th birthday. The request of the
Board is denied.
LAYOFF - A new provision to be Article 32.01
It is the request of the Association that a new provision
be inserted into the Collective Agreement providing for protection
of employment on the basis of seniority in the event that there is
a layoff. The recent layoffs at the City of Calgary and Edmonton
police force are cited as examples of the need for such a
protection.
In a recent decision by this arbitrator involving the
Sarnia Township police such a proposal was accepted by the
arbitrator as being an appropriate provision for insertion into a
Collective Agreement. In that case there was perhaps more
immediacy to the problem. The City of Sarnia is considering
expanding to include some of the Township thereby altering the
balance of policing between the Sarnia Township and the Ci ty of
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Sarnia police forces. Despite the absence of such a circumstance
here, the principle is a fundamental one of labour relations. ItI
is a clause which ought to be inserted in Collective Agreements.
This arbitrator in arriving at the decision to do so in the Sarnia
Township Award was concerned about the quality of the clause to be
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inserted. The arbitrator has a similar concern with the proposed
clause to be inserted at the suggestion of the Association. ItI
reads:
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"In the event of a layoff the last employeeI hired shall be the first laid off and the first
employee laid off shall be the first requestedto return."
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The Board takes the position that such a clause is in
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violation of Section 27 (b) of the Regulations to the Police Act.
The arbitrator has already dealt with that argument in the SarniaI
Township award. There is no need to repeat the arbitrator's views
in this Award.I
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The Board also made a number of submissions regarding the
quali ty of the clause proposed by the Association. It takes noI
account of availability to do the work, how long the laid off
employees are to remain employees and so on. The Board as an
alternate position proposes a clause to deal with layoff which is
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proposed by the Association. It reads as follows:I
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"In the event of a layoff of one or morecadets or of one or more officers who havecompleted the probationary period prescribed by.thePolice Act, the following shall apply:
(a) The employee with the least seniorityshall be the first laid off provided that thesenior employee retained has the necessaryskills, qualifications, abilities andcompetence to perform the work available.
(b) Subject to (c) below employees on layoff,possessing the necessary skills,qualifications, abilities and competence toperform the work available, shall have right ofrecall for cadet or police officer jobopenings, as the case may be, occuring duringlayoff in reverse order of layoff.
(c) Right of recall shall cease six (6) monthsafter layoff and employment shall then ceasefor all purposes.
(d) The Board will not participate in the costof an employee's benefi ts after the month inwhich the employee is laid off, provided that,subject to the conditions of the carriers, theemployee may arrange to have benefits continuedat the employee Is expense until recall or theexpiry of the period mentioned in (c),whichever first occurs, and
(e) Seniority shall be calculated from date ofthe last hire."
The arbi trator accepts that the proposed clause by the
Association is inadequate. The clause proposed by the Board is a
more traditional form of seniority and lay off clause. The
Arbitrator orders that the clause be inserted as proposed and
drafted by the Board save for the fact that in provision (c)
dealing with the length of the right of recall that right shall
cease after 18 months rather than the 6 months proposed by the
Board.
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COMPLAINT AND GRIEVANCE PROCEDURE - Appendix "B"I
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It is the request of the Board that the provision dealing
with the launching of a grievance be added to by the followingI
proposal:I
I "No complaint or grievance will be entertainedwhich does not relate to an alleged violationof this agreement."
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It is the submission of the Board that the proposedI
addition to the agreement merely states the law as found in
I Sections 15, 29(2) and 33(1) of the Police Act.
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The Police Act governs relations between the Board and
I the Association and in part the contents of the Collective
Agreement. If the Board submission is correct then the additionalI
portion merely underscores the existing legal obligations. It is
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unnecessary to add it to the Collective Agreement. However, the
provision goes further. It restricts access to the grievanceI
procedure by enabling the Board to make jurisdictional argumentsI
to a grievance arbitrator. The argument being that there is no
I grievance because there is no alleged violation of a particular
provision of the agreement. The additional language may well goI
beyond both the law as stated in the Police Act and the thrust of
I the provision as proposed by the Board. Therefore, the request of
the Board is rejected.I
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CONCLUSION
In arriving at the foregoing determinations the
arbitrator has had regard to the employer's ability to pay and the
total impact of the cost associated with this award as required to
be done under the provisions of the Public Sector Prices and
Compensation Act, (1983 Ont.). ~e provisions of the previous
Collective Agreement are to be amended and changed in accordance
with the terms of this award. The parties are to enter into a new
Collective Agreement in accordance with this award immediately
upon receipt of it.
The arbitrator retains jurisdiction to make any
determinations as to the implementation of this award should any
dispute arise between the parties.
iiDated at London, Ontario this A 1f day of November, 1984.
Richard H. McLaren
Sole Arbitrator
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- .'. ,'" ".,t~; ;':jo"~~~ . ("" . . ",,-";,:.t:t(ej";;;;':...
.-f35) Hearing Date of award -
Michipicoten Nov.19,1984
IN THE MATTER OF THE POLICE ACT, R.S.O. 1970 c. 351 AS AMENDED
AND IN THE MATTER OF AN ARBITRATION
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BET WEE N:
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ARBITRATOR:
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APPEARING FOR THEBOARD:
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APPEARING FOR THEASSOCIATION:
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THE BOARD OF COMMISSIONERS OF POLICEFOR THE TOWNSHIP OF MICHIPICOTEN
(hereinafter called the "Board")
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THE MICHIPICOTEN TOWNSHIP POLICEASSOCIATION
(hereinafter called the "Association")
B. WelLlng
J. Lynett
F. Smith
A HEARING IN THIS MATTER WAS HELD IN SAULT STE. MARIE, ONTARIO,
ON 15 NOVEMBER, 1984
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3.
I have the power to impose a 1984 contract. The obvious
.starting point is to order (i) and (ii) above, which I do. I
trust that the parties, having essentially agreed to this format
and those terms, will have no difficulty in setting them out
in a formal agreement. Consequently, I see no purpose in my
reproducing those details in this award.
As to the rate of pay, there was substantial discussion
at the hearing concerning the particular working environment
in this Northern Ontario township. Comparisons were made with
a substantial number of other municipalities which already have
1984 contracts; further comparisons were made by focussing on
other Northern Ontario forces. This is not a rights hearing
and there seems little purpose in reciting the evidence and the
"arguments as if they had precedent value. The statistics tell
the story, and this Award will be but a small contribution to
those statistics. A pattern seems to have emerged throughout
Ontario in 1984 whereby 5% wage increases can be regarded as,
within the norm. These increases in the 5% range do not include
costed benefits, though presumably they have an impact on the
benefits packages and are locally costed by police administrators.
The Association's request for a 5% increase falls within the
1984 Ontario norm.
I impose a 5% wage increase as a term of the 1984
contract.
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5.
The present method of deducting sick days is asfollows. For the first 2 days off work due to illness,1 1/2 days per day are deducted from the officer'sbank. This is due to the officers working 12 hoursper day rather than eight. This first 2 days of illnessis not covered by'the Board's insurance carrier. Thepolice officers have experienced many difficultieswith this method of deduction and feel it is necessaryto amend the method of deduction to coincide with the12 hour shift schedule incorporated in the agreement.The police officers request an amendment under clause6(b) of the Income Protection Plan to read as per page15.
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The problem is created by the fact that all employees of the
municipality are covered by a common, insured sick leave plan.
It works fine on the credit side. On the debit side, its application
to police officers is complicated by the fact that they are the
only municipal employees who work 12 hour shifts.
From the Association's point of view, the administration
of the plan would operate equally for all municipal employees
if one day missed through sickness were debited as precisely
that - one day. It is not difficult to understand their point
of view. Individuals suffer from illness primarily on a daily
(or longer) basis, not by the hour. Thus, to the individual,
6 sick leave credits per year intuitively suggests that 6 days,
not 4, can be taken off without loss.
On the other hand, the Commissioners are likely to
view the problem of sick leave quite differently. Assuming,
for purposes of illustration, an average projected work week
of 40 hours for each municipal employee, one sick day by an employee
working 8 hour days may be seen from the employer's side as the
loss of 8/40 of a week. The corresponding work loss in the event
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I shall retain jurisdiction concerning that matter for only 60
I days following any decision that the Association has her bargaining
rights. That should give the parties adequate time to meet andI
settle this matter without my intervention.
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The final matter is the legislative requirement that
I I include some comment concerning the municipality's liability
to pay". I shall not reprodpce all the comments I made on thisI
issue in my Timmins award, dated Nov 84, but I remain convinced
that this is fundamentally a political issue and that my politicalI
opinions are of no interest to the parties. That is all I have
I to say on liability to pay".
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In closing, I congratulate the parties on what appears
to be a good working relationship which bodes well for the negotiationI
of a 1985 agreement. I shall retain jurisdiction until 15 Jan
I 85 on matters dealt with in this award (other than the civilian
employee's contract, dealt with above) against the unlikely eventI
that the parties have some difficulty in putting this award into
effect.I
DATED at London, Ontario, this 19th da I
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