HomeMy WebLinkAbout1987-1623.Union.89-06-14IN TEE MATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Union Grievance)
Fot the Grievor:
For the Employer:
Bearings:
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
J.W. Samuels H. O'Regan
M. Wood
Vice-Chairperson
Member
Member
M. Ruby
Counsel
Gowling & Henderson
Barristes & Solicitors
P. Thorup
Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
May 23, 1989
.I
AWARD -.--.-_ 2
The Union seeks a declaration that employees classified as “weigher”,
“checker” and “technician 1 survey” be designated as seasonal employees.
Let us explain this grievance.
During the spring, summer and fall months, the Ministry undertakes
various road, bridge and other construction projects. Additional staff is
engaged to assist in this work. Among this additional staff, there are
weighers, checkers, and technicians 1 survey. These employees are
designated simply as unclassified staff. If they were designated instead as
seasonal employees, according to the definition set out in Article 3.17 of
the collective agreement, they would be entitled to a measure of job
security and additional benefits which they do not enjoy as simple
unclassified staff.
Article 3.17 provides that:
A seasonal employee is an employee appointed for
a period of at least eight (8) consecutive weeks to
an annually recurring full-time position in the
unclassified service in a ministry. For purposes
of this definition full-time means a minimum of
thirty-six and one-quarter (36 l/4) or forty (40)
hours per week, as applicable.
The issue in this case is whether the weighers, checkers and
technicians 1 survey are appointed to an “annually recurring full-time
position”.
The Ministry engages outside contractors to do the construction
‘projects. The contractors choose their sources of aggregate supply.
A weigher works at the gravel pit from which the contractor gets his
aggregate, and is responsible for weighing and recording the amount of
aggregate taken. A checker works at the construction site, and is
responsible for measuring the amount of aggregate dumped at the site. In
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this way, the Ministry is able to confirm the amount of aggregate used in
the construction project.
A technician 1 survey assists a survey crew by holding rods,
pounding stakes, and doing other similar tasks.
It has been the Ministry’s practice for years to engage people who
live near the construction projects to act as weighers, checkers and
technicians 1 survey. Each employee is hired pursuant to a contract which
relates to a specific construction project. Over the course of a year, any
particular employee may work under one or more contracts, depending on
the construction going on in his locality. And the employee may serve as
weigher, checker, or technician 1 survey, depending on the Ministry’s
needs on that project. Some of these employees have been hired year after
year for many years. Their periods of employment will be long or short,
continuous or discontinuous, depending on the work available. At the end
of one year, there is no certainty that there will be work the next year. It
all depends on the construction projects which are needed and funded.
Sometimes a project will extend over several years, in which case an
employee may be engaged for this period on the project, if the work
continues near the employee’s place of residence.
In these circumstances, can it be said that one of these employees is
appointed to an “annually recurring full-time position”?
This expression appears to have been considered by this Board only
once before. In Furniss, 602/86 @lone), the Board dealt with the case of a
park warden who moved from park to park from year to year. The Board
decided that, wherever the grievor worked, he was in the same “position”,
that of a park warden. Therefore he was a seasonal employee.
It is significant that, in Furniss, the grievor’s job functions and
period of employment were pretty much the same year after year,’ and it
was very likely that there would be park warden work year after year.
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In our view, the essential message of the words “annually recurring
full-time position” is that there is a foreseeable regularity and
repetitiveness involved in the employee’s appointments. The work is full-
time. It does not go on all year, but an identifiable position recurs each
year. This notion of regularity is echoed in the job security provision for
seasonal employees. Article 3.20.1 provides that ‘Seasonal employees who
have completed their probationary period shall be offered employment in
their former positions in the following season on the basis of seniority”. It
is contemplated that the same position will be there in the following season.
The seasonal employee is not simply rehired year after year, but returns to
his or her “former position”.
The work patterns of weighers, checkers and technicians 1 survey do
not have the necessary repetitiveness and regularity to fall within the
definition of “seasonal employee” established in Article 3.17. These
employees are engaged for particular projects which happen to be
undertaken close to their places of residence. The projects are done all
over the map. There is never any certainty that there will be work for a
particular employee in any’ season, or, if there is work, how much there
will be. An employee may work one contract as a weigher, another as a
checker, and a third as a technician 1 survey.
Within any one locality, there may be several projects going on of
differing duration, from a few weeks to several months. If a weigher was
considered to be a seasonal employee, having a seniority claim to his
“former position”, which project would be considered to be the employee’s
“former position”? The longest project? The project which was approved
and funded first? The project closest to the employee’s place of residence?
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In our view, it is simply not possible to identify any particular work
or position as an “annually recurring full-time position” with respect to any
particular weigher, checker or technician 1 survey.
For these reasons, we dismiss the grievance.
Done at London, Ontario, this I 4 t h day of JUII~ , , 1989.
/,L-
H. O’Regan, Member::
M. Wood, Member