HomeMy WebLinkAbout1987-1657.Ball.88-08-10IN TRR MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLl!.&%lT BOARD
Between:
OPSEU (Clara Ball)
Grievor.
-
and
The Crown in Right of Ontario
(Ministry of Transportation & Communications)
Employer
Before: R.J. Roberts Vice-Chairman
H. O'Regan, Member
M.F. O'Toole Member
For the Grievor: .L.,Trachuk
Counsel
Cornish & Associates
Barristers and Solicitors
For the Employer: D. Francis
Counsel
Winkler, Filion'& Wakely
Barristers and Solicitors
Hearin= February 23, 1988
DECISION .
This case involves certain alleged deficiencies in Article
25 of the Collective Agreement. Article 25 reads, in pertinent
part, as follows:
ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25.1 An employee's length of continuous service will
accumulate upon completion of a probationary period of
not more than one (1) year and shall commence:
(a) from the date of appointment to the Classified
Service for those employees with no prior service
in the Ontario Public Service; or
-
.k
(b) from the date on which an employee commences a
period of unbroken, full-time service in the
public service, immediately prior to appointment
to the Classified Service: or
) for a regular part-time civil servant, from
January 1, 1984 or from the date on which he
commenced a period of unbroken, part-time service
in the public service, immediately prior to
appointment to a regular part-time.position in the
civil service, whichever-is later.
"Unbroken service" is that which is not interrupted by
separation from the public service: "full-time" is
continuous employment as set out in the hours of work
schedules for the appropriate classifications: and
"part-time" is continuous employment in accordance with
the hours of work specified in Ar~ticle 60.1.
25.2 Notwithstanding Article 25.1, where a regular part-
time civil servant within the meaning of Part C of the
Collective Agreement becomes a full-time civil servant
covered by Parts A (Working Conditions) and B
(Employment Benefits) of the Agreement, any service as
a regular part-time civil servant which forms part of
his unbroken service in the classified service shall be
calculated according to the following formula:
2
Weekly Hours of Work as a Years of Continuous
Regular Part-time x Service as a Part-Time
Civil Servant Civil Servant
Full-time hours of wor.k for
class (weekly)
Changes in the employee's weekly hours of work shall be
taken into account.
Example:
- weekly hours of work as a regular part-time civil
servant = 6 years at 20 hours per week, and
2.5 years at 16 hours per week
- Full-time hours of work for class (weekly) = 40
(Schedule 4)
- Seniority (Length of Continuous Service) on becoming a
full-time civil servant = (20 X 6 years) + (& x 2.5
years)
- 40 40
= 3 years + 1 year = 4 years
The grievor joined the full-time classified service on May 1,
1985, after having been a part-time civil employee in the
unclassified service for a number of years. When the Ministry
refused to recognize under Article 25 any seniority in the
grievor prior to May, 1985, she filed the grievance leading to
the present proceeding.
At the hearing the parties agreed that if the grievor had
become a member of the regular part-time service before going
full-time, she- would have received some recognition of her
seniority. Under Article 25.1 (cl, above, it was agreed. the
grievor would have kept all her seniority back to January 1, 1984
--..-~. . . . . .._ -- __.. .,,. _~.
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in moving from the unclassified to the regular (or classified)
part-time civil service.
Under Article 25.2, above, the parties also agreed, this
seniority would have been retained on a pro-rated basis when the
grievor became a full-time civil servant. It was only because
the grievor did not have the opportunity of taking the
intermediate step of becoming a classified part-timer that she
was denied recognition of any seniority at all.
This seemingly anomalous result, counsel for the Union
'submitted,-came about because the interest arbitration award
which established for the first time a classified part-time civil
service as~sumed incorrectly that thereafter,. all "regular" part-
timers would .become classified. As a result, Article 25 did not
provide for the preservation of
seniority of unclassified
"regular" part-time employees~ who entered the full-time
classified service. Because of this mistake, it was submitted,
it was appropriate for this Board to give the grievor the benefit
of Article 25.1 and 25.2,despite the fact that she never was a
member of the classified regular part-time service.
The award to which counsel referred was the Swan Award, R>
Crown in ricrht of Ontario and OPSEU (May
23, 1985). This Award
resolved all outstanding issues between the parties regarding the
.terms and conditions of the 1984-85 Collective Agreement. With
4
respect to the then unclassified staff, the Award stated, in
pertinent part, as follows:
2. UNCLASSIFIED STAFF
The issue of working conditions and employee benefits
for members of the unclassified staff is a long-standing
matter of dispute between the parties. Article 3 of the
collective agreement now provides certain limited rights to
unclassified employees, who fit into three categories-
regular part-time, seasonal and casual employees.
Predictably, the collective agreement provides for greater
rights for the first two types; casual employees are covered
only by certain wage and benefit provisions specifically set
out in Article 3. The Union's position is that Article 3
should simply be deleted from the collective agreement, and
that unclassified staff should obtain all of the benefits,
pro-rata, that are provided to classified staff. . . .
Jn principle, the Employer did not oppose this
proposal, and indeed the Employer prepared an extensive and
comprehensive draft clause for the collective agreement,
setting out its approach to the problem. In the Employer's
submission, employees in the unclassified service are not a
homogeneous group. and the Union's approach of simply extending all full-time working conditions and benefits to
unclassified employees would not be responsive to the
material differences in the way in which these employees
work.
In the result, the Employer proposed two separate
schemes for seasonal employees and regular part-time
employees, and proposed no changes to the situation for
casual employees. While the Employer's proposals do not go
as far as the Union would like, we are of the view that they
constitute a very significant improvement in the terms and
conditions of employment for this group of employees, one
which is agreed on all sides to be overdue. We have therefore decided to adopt the Employer's proposals,. subject
to requiring certain amendments to address problems,
identified either by the Union, or by members of the board
during the course of the hearings, in the otherwise helpful
and comprehensive drafts supplied by the Employer. . . .
The second part of the Employer's response to the
problem of unclassified employees relates to. regular part-
time employees. The Public Service Superannuation Amendment
Act, 1984, makes it possible to appoint part-time civil
servants, as classified employees. This change makes
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necessary a different approach to working conditions for
these employees than was the case for the seasonal
employees, and the continuous nature of their employment.
albeit for less than full-time hours, argues for a different
approach. Once again, .we accept the Employer's proposals,
subject only to amendments to remedy deficiencies which were
identified either by the Union or by members of the
board during the course of the hearing. . . . id. at pp. 13-
19.
We are not convinced that these passages from the Swan award
indicate that the Board mistakenly assumed that thereafter all
former "regular" part-timers would become classified part-time
employees. From the outset, the Board made it clear that it was
accepting, with certain amendments, the proposals of the Employer
and re jetting the Union's position "that unclassified staff -
should obtain all of the benefits, pro-rata, that are provided to
classified staff." u. at p. 3. The Board merely
spoke of
recent legislation making "it possible to appoint part-time civil
servants, as classified employees. ” @. at p. 19. And the
Employer proposal which became Article 60.1 of the Collective
Agreement made it clear that thenceforth, the term "regular part-
time civil servant" specifically meant a classified part-time
employee. It did not embrance all employees who used to be
referred.to as "regular" part-timers. Moreover, the Board noted
that it had made amendments to the Employer's proposals "to
remedy deficiencies which were identified by either the Union or
by members of the board during the course of the hearing."
Apparently, the preservation of the category of unclassified
part-timers was not considered to be a deficiency.
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We say this because it seems apparent from examining Article
25, which derived from the Employer's proposals, that the
category of unclassified part-time employees was retained. In
particular, Article 25.1 Cc) carries this inference. It provides
that the seniority of a part-timer who is appointed to a
classified part-time position shall commence "from January 1,
1984 or from the date on which he commenced a period of unbroken,
part-time service . . . immediately prior to appointment . . .
whichever is later." As worded, this ~provision applies equally
to two part-timers who commenced continuous employment in, e.g.,
1983 and 1986. If in 1987, they both were appointed to the
classified part-time. service Article 25.1 (cJ would make the
seniority date of the first January 1. 1984 and that of the
second 1986: The .point is, Article 25.1 (c) contemplates the
transfer of seniority credits from ~the unclassified to the
classified part-time service long after the date of
implementation of the Swan Award. We do not think that Professor
Swan or the members of his Board would have failed to amend
Article 25.1 (c) to excise this "deficiency" if they considered,
as counsel for the Union submitted, that from the date of
implementation of their award an unclassified "regular" part-time
service would no longer exist.
Accordingly, we must conclude that the Swan Award did not
proceed upon a mistaken assumption when it awarded what
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ultimately became Article 25 of the Collective Agreement. The
grievor cannot take advantage of the provisions of either Article
25.1 (c) or25.2 to claim a seniority date earlier than her date
of commencement of employment in the full-time classified service
because she was not a member of the classified part-time staff
immediately prior to her full-time appointment. In light of this
conclusion, we have no alternative but to dismiss her grievance.
Before concluding our award, however, we would like to
express our strong recommendation to the parties that they meet
to consider and resolve the plight of employees in the position
of the grievor. It does seem anomalous and inequitable that the
grievor should be deprived of seniority credits merely because
she accepted a full-time appointment without first becoming a
member of the classified part-time staff. It seems likely, as
counsel for the Ministry suggested, that the parties simply did
not turn their minds to the question of the seniority of
unclassified part-timers who obtained direct appointments to the
full-time classified service. In view of this, we considered in
our, deliberations whether implication of a term might be an
appropriate remedy; however, we declined to take this action
because it fell outside the scope of the submissions of counsel
and as a result .we did not have the benefit of their assistance
upon this issue.
The grievance is dismissed.
DATED at London, Ontario, this 10th day
. . 6'Toole, Member