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HomeMy WebLinkAbout1987-1624.Union.89-07-13tc ONTAR, EMPLOY~SDEL4 COURONNE CROWN EMPLOYEES OE“OONT*R,O 5 ~? GRIEVANCE CQMMISSION DE I ;ET&;MENT REGLEMENT DES GRIEFS IN TBE MATTER OF AN ARBITRATION Under THE CROWN EMPMYEES COLLECTIVE BARGAINING ACT Between: OPSEU (Union Grievance) Before THE GRIEVANCE SETTLEMENT BOARD - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Before: APPEARING FOR THE GRIEVOR: APPEARING FOR THE EMPLOYER: Hearins: Grievor Employer N.V. Dissanayake J. McManus H. Roberts Vice-Chairperson Member Member R. Wells Counsel Gowling & Henderson Barristers br Solicitors D. Costen Counsel Ministry of ComIIIUnity & Social Services March 6, 1989 i i 2 The essential facts relevant to this union grievanc? are not in drspute and the case was presented to the Board without either party adducing any viva vote evidence. This dispute arises out of the decision by the Empioyer in December 1986 to privatize one of its facilities, the Surrey Place Centre. As a result, a number of Surrey Place Centre employees were declared surplus. Articie 24.2.1 of the collective agreement reads: Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kiiometre radius of his headquarters provided he is qualified t0 perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above *Or twenty percent (20%) below the maximum salary of his classification, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. (emphasis added) 3 This grievance reiates to a dispute as to whether four surpius employees had a right under article 24.2.1. to be considered for assignment to three vacancies that arose. The vacancies, which were advertised in the government publication "Topical", sometime in ?-lay 1567, were for two positions as Adoption Disclosure Counseilcr 4 and one position as Investigator 3. -ihe positions in question were advertised as being in the ciassification Of AM-18, which was a ciassification within the Management Compensation Pian traditionaily reserved for persons excluded from the bargaining unit. The four employees in question expressed an interest in being assigned to those positions under articie 24.2.1.. but were not considered because the positions were classified as excluded positions. T 5, e union objected to the classification and took the position that the vacancies in question should not have been exciuded from the bargaining unit. Nevertheless, the positions were filled as advertised. In March of 1988, the Employer recognised that it had made an error and that the positions shouid have been advertised as positions within the bargaining unit. To remedy the error, the incumbents in the position were placed in the bargaining unit retroactive to November, i : 4 1987. To refiect this change, instead of the excluded classification of AN-18, the counseilor positions were assigned :he ciassification of Executive Officer Ii and the investigator position was assigned Executive ifficer I. These new ciassifications are usually bargaining unit ciassifications. At the time they became surplus, the employees in question were classified as Nurse ii Public Heaith and had a weekiy wage of 6 815.56. The advertised maximum weekly wage for the vacant positions was 5 839.42, which is a difference of less than 3 percent. Thus if the positions had been advertised as bargaining unit positions, the grievers would have been entitled to be considered for assignment under article 24.2.1. However, when the positions were re-classified after the Employer realized its mistake, new wage rates were assigned. The Executive Officer 2 had a maximum weekly salary of 9 851.39, and the Executive Officer I a maximum weekly salary of $ 720.10. As far as the Investigator position is concerned, the Employer accepts that even after the reclassification as Executive Officer I. the maximum weekly wage rate still has a difference of iess than 3 5 percent when compared to the grievers' previous wage as Nurse Ii Pubiic Health. Accordingly, the Empioyer is willing to consider the grievers for assignment to that position under articie 24.2.:. However, the wage rate for AdJption Disclosure Counselior, after reciassification as Executive Officer II, represents an increase of more than 3 percent over the Nurse II Public Health wage rate. Therefore, the Employer argues that the requirements of article 24.2.1. have not been met. The dispute boils down to this. When caiculating the 3 percent, should the grievors' Nurse Ii wage rate be compared, (a) with the rate initially advertised in the "Topical" under the excluded classification, or' (b) with the rate for Executive Officer II after the Employer reclassified the positions. If the former is done, the difference in the maximum weekly wage rate is iess than 3 percent and article 24.2.1 applies. if the latter is done the difference is more than 3 percent and the grievor-s have no rights under article 24.2.i. The union points out that the only requirement is that "the salary maximum of the vacancy is not greater than three percent." The vacancy was advertised with a specified wage rate. Employees were appointed to the vacancies in May, 1987 and were paid that rate untii 6 March 1988. in March 1988, the positions were reclassified and brought into the bargaining wit retroactive to November, 1967. COUinSei submits that in deciding the application of articie 24.2.; the relevant time is when the vacancy arose in May 19Sl. AL ieasc from May to November 1987, the oniy wage rat+ ti.ai; existed, on paper or in reaiity, was that adver-Listd. Accordingly counsei submits that the Board has no other wage rate to compare. Counsel for the Zmpioyer submits tha: the term "vacancy" in articie 24.2.1 can oniy refer to a vacancy in the bargaining unit. He points out that the union is inviting the Board to compare the surpius empioyees' salary with the salary assigned by the Employer to an excluded classification and urges the Hoard not to compare "apples and oranges". In support of r;his argument counsel points out that the wages for exciuded positions' are not negotiated in the collective agreement. The union relied on Re D.W. Cannina st al, 558784 (Brent), a classification decision of this~ Board. There, the grievers had claimed that they were improperly ciassified. and by way of remedy claimed an exciuded ciassification within the Management / Compensation Pian. Ihe Zmpioyer argued that bargaining unit employees do not have access to LYCP classifications as a remedy in a classification grievance. In accepting the union's submission that there is a distinction between a person's job classification on the one hand and inclusion/exclusion in the bargaining unit on the hand, the Board observed: Cieariy the Employer has the discretion to create a system of job ciassification which is reserved exclusively for persons who are exciuded from the bargaining unit. The fact that d person does a job which is classified according to that classification system does not mean that the person is by reason of that fact alone excluded from the bargaining unit. If the person's status were to be chailenged. the Tribunal would still have to examine the situation and determine status. Should the Tribunai determine chat the person was an employee under :he Act, the Zmpioyer would then have to determine how it was going to react to a situation where it had an employee whose job was classified according to a system which it wanted to reserve for those who were not considered to be employees. The Employer here has recognized that the duties and responsibiiities in the Adoption Disclosure Counsellor position are such that the incumbents would not be, and should never have been, excluded from the bargaining unit. However, through an error, - the Employer assigned a classification intended for exciudad positions to a bargaining unit position. Whatever, thz 8 classification was, ic is clear now that the -vacancyU that arose for purposes of artlcie 24.2.1 was for a bargaining uilit position. in our view, the fact that the Employer arrived at a wage rate by erroneously using a wrong ciassification does not make artlcie i4.2.~ inapplicabis. Our conciusion wouid have been different if at the time the vacancy arose the duties were such chat the position was outside the bargaining unit and it was as a result of subsequent changes in the duties that the position was included in the bargaining unit. Here there was no change whatsoever in the duties and therefore in the "employee" status for the purposes of the Act. Aii that changed was the classification and the corresponding wage rate. Even thoilgh the positions were classified in the Management Compensation Blan, ic is beyond dispute that they were throughout bargaining unit positions. The fact that the Employer assigned an excluded classification did not result in converting these bargaining unit positions into excluded positions. What is important in article 24.2.1 is the word "vacancy". A vacancy is for a position and not for a classification. Since the vacancy'was for a position within the bargaining unit, the Board is not being asked to compare "appies and oranges". 9 For the foregoing reasons, the Board is satisfied that the grievors are entitled to their rights under arcicie 24.2.i. Despite die classification, the vacancies that arose were within zhe bal-gtlining uni L ( and the wage rate applicabie to those positions was that advertised in the topical. Since that wage rate did not represent a difference of more than 3 percent when compared to the grievers' wage rate, that requirement in article 24.i.i has been satisfied. The grievance is ailowed and the Znployer is directed to consider the grievors Joanne Sommers I Carmelina De Carlo, Celestine Chan and Cynthia O'Beine, for. assignment under article 24.2.1 to the positions in question, and if qualified, to place them in the positions retroactive to the time the positions were filled. The Board remains seized in the event the par:ies have difficulty in implementing this award. Dated this 13th day of July, 1989 at Hamilton, Ontario. filsz-- Nimal V. Dissanayake Vice-Chairperson H. Roberts