Loading...
HomeMy WebLinkAbout1987-1682.Bressette et al.89-06-29CROWNEMPLOYEES GRIEVANCE SETTLEMEN BOARD CQMMISSION DE T REGLEMENT DES GRIEFS Between: IN THE MATTER OF AN ARBITRATION \r 1 Under TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEHENT BOARD Before: For the Grievor: For the Employer: Hearings: OPSEU. (Bressette et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer T.H. Wilson Vice-Chairperson F. Taylor Member P. Camp Member H. Sharpe P. Chapman Counsel Gowling & Henderson Barristers & Solicitors C. Slater Senior Counsel Management Board of Cabinet L. Pettigrew Counsel Human Resources Secretariat February 1, 1988 at Toronto December 6, 1988 at Midland P- DNCISION The grievances arise out of a job posting at the Oak Ridge Unit of the Mental Health Centre at Penetanguishene. There were 23 vacancies in the classified service for Attendants at the Oak Ridge Unit. At the time of the job posting the griavors, Bressette, Desroches, Dunn and Donaldson were employed in the unclassified public service pursuant to contracts signed by i the grievors and the employer. The grievors applied in the posting and were unsuccessful. The employer contends that since they were unclassified staff they could not rely on Article 4.1 (Job Posting) of the Collective Agreement. The union relies on the Board's decision in Beresford a Nlnistrv of Government Services (GSB 1429/86) and the Ministry relies on Hicks and m Ministrv of Communitv Services (GSB 2563/87). Originally, this case came on for hearing on February 1, 1988 at which time the Ministry proposed to argue a preliminary issue. However, none of the incumbents had received notice of hearing. The Ministry argued that notice was not necessary for the purposes of the argument on the preliminary i objection. However, it was the Board's view that they were entitled to receive notice so that they could decide whether or not they wished to participate. Because of the number of incumbents involved, it was decided tc hold the hearing In Midland, Ontario and that hearing was held on December 6, 1988. A number of incumbents did attend but did not participate in the presentation of evidence or argument although afforded the opportunity to do so. Subsequently, further written arguments were received by the Board from both the union and the Ministry. -. I - 2 - A further point that should be noted: both Beresford and Hicks * are the subject of applications to the Courts. No one in the case before me requested an adjournment of the dispute pending the outcome of those Court proceedings. Since , :&n Tsiotsikas~ and Ministry of Skill Develonment (GSB 0907/88) the apparent conflict between Beresford and Hicks was again raised by the union, and the $inistry requested an adjournment sine die pending the couti determinations. That panel also chaired by this Chair-person sitting i with different board members refused an adjournment, after receiving argument in a written preliminary decision issued on the 20th of April, 1989. I will D& under the circumstances adjourn this case on mv own motion. Furthermore, another board decision la pending on this same issue in McClelland w Ministrv of Labour (GSB 865/88). The grievances 'of Donaldson, Desroches and Bressette were all dated August 16, 1987 and presented to the employer about that time. The grievance of Dunn was dated September 3, 1987 and presented on September 8, 1987. The employment status of the grievers was as follows: Donaldson was employed on a contract with a term from July 1, 1987 to September 30. 1987. c, Ms. Desroches was employed on a contract with 'a term from July 1, 1987 to September 30, 1987. Bressette's Contract ran from June 30, 1987 to September 30, 1987. Dunn was employed on a contract with a term from March 31, 1987 to September 30, 1987. Furthermore, Donaldson, Desroches and Bressette were employed in the unclassified public service at the time of their grievances in August * On Monday June 26, 1989, the Court of Appeal dismissed an Application for leave for appeal to the Court of Appeal from the decision of the Divisional Court dismissing judicial review of the Grievance Settlement Board's decision in Beresford. - 3 - 1987. Dunn, however was later successful in another competition for a position of Psychiatric Nursing Assistant and was appointed to the probationary staff in the classified service on August 24, 1987. Accordingly, Dunn was in the classified service when he filed the grievance but not when the subject matter of the grievance arose. Dunn also filed a grievance on September 25, 1987 (GSB 1913/87) claiming a violation of subsection 27.3.3 of the collective agreement: Carol Desroches gave evidence for the union. i She started work at the Penetanguishene facility on September 9, 1985 as a security attendant. At all relevant times she was on contract until on 21 September 1987 she was appointed to the classified staff at the hospital as a Psychiatric' Nursing Assistant II. When at Oakridge, she was successively employed on three month contracts and later six month contracts without m gaps. She worked alongside classified attendants. She did the same work as classified attendants. She worked 40 hours a week. It was stipulated by counsel that her evidence would stand for all four grievors. The union's principal argument was that the grievors were not properly unclassified employees and therefore Article 3 of the collective agreement does not apply to them. They should be considered therefore as having the right to rely on section 4.1 of the collective agreement. The union relies on the Beresford Decision. The Ministry relies on Hicks -. In Beresford, the grievor claimed that she was dismissed in violation of clause 18(2)(c) of the Crown Emolovees Barqainins Act and Article 27 of the collective agreement. The employer took the position in that case that Linda Beresford had not been terminated, but rather that her contract had simply not been renewed at the end of its term. The grievor had been an & .i - 4 - unclassified employee on a term contract. At the time the end of her last contract she had been one of 28 telephone consul operators, half of whom were classified and half of whom were unclassified staff (i.e. contract or GO-Temp employees). In May 1985, the grievor had gone on contract for six months following which she signed a further contract for 11 months. When it expired her employment was not renewed. The consul operators collectively staffed 20 consuls, placed around circular modules in groups of five, and there was no i difference in either the work assignments, duties, or selection of work stations or shifts between the classified and unclassified staff. As well, in the case of the grievor at least, the number of hours worked was 7 l/4 a day and 36 l/4 a week. “Classified service” under the Public Service Act pursuant to section 1 means: (bl “the part of the public service to which civil servants are appointed. ” And a civil servant is defined under section l(a) as: (al “civil servant” means a person appointed to the service of the Crown by the Lieutenant Governor in council on the certificate of the Commission or by the Commission, and “civil service" has a corresponding meaning; * Unclassified means: (i) “unclassified service ” means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act. ” Appointment to the civil service or classified service is made pursuant to sections 6 and 7 of the Public Service Act. 6- (1) When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy exists shall nominate in writing from the list of eligibles of the Commission a person to fill the vacancy. - 5 - (2) The Commission shall sppoin t the person nominated under subsection (I) to a position on the probationary staff of the classified service for not more than one year at a time. The Commission shall, if requested in writing by the deputy minister, recommended to the Lieutenant General in Council the appointment of a person on the probationary staff of the classified service to the regular staff of the classified service, and the recommendation shall be a’ccom&nied by the certificate of qualification and assignment of the Commission. The unclassified staff are appointed under section 8. 8- (1) 9 A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appoln tnen t a person to a position in the unclassified service in any ministry over which he presides. A person who is appointed to a position in the public service ceases fo be a public servant at the expiration of that period. In Beresford the union contended that the structure of subsection 8-(l) indicated that the Minister’s power to appoint to the unclassified staff was not unfettered. It was argued that such interpretation is borne out by Regulation 881 section 6 enacted pursuant to the Public Service Act. 6- (1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out & & divided a, (al Group 1, consisting of employees who are empl eyed, (i) on a project of a non-recurring kind, (ii) in a professional or other special capacity - 6 - ic) (iii) on a temporary work assignment arranged by the commission in accordance with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days ln four consecutive weeks or on an irregular or on-call basis, L (v) during their regular school, college or university vacation period or under a co-operative educational training program; lb) Group 2, consisting of employees who ars employed on a project of a recurring kind, (i) for fewer than twelve consecutive months and for fewer than, (A) 36 - l/4 hours per week where the position, if filled by a civil servant, would he classified as a position requiring 36 - l/4 hours of work per week, 181 40 hours per week where the posf tion, if filled by a civil servant, would be classified as a position reguirfng 40 hours of work per week, (ii) for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36 - l/4 hours per week or 40 hours per week; Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive weeks to an annually recurring position where the contract provides that the employee is to work either 36 - l/4 hours per week or 40 hours per. For the union, Alick Ryder, in Beresford, argued that "the situations contemplated by the temporary appointment power given to a minister - 7 - under section 8 are in fact defined and limited by the express terms of the government's Regulation 881. . . ." In interpreting the scope of section 8 of the Public Service Act in the Decision issued on November 12, 1987, the vice- chairperson Mitchnick (now Chairperson of the Ontario Labour Relations Board) wrote at page 14: "The section [B.] is in fact curiously worded to the extent that it does raise theLquestion why the Legislature would limit the term of the initial appointment to one year, but then go on to permit any extension of that term on an indefinite basis. That wording would therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term basis, there must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the classified service. More important to us, however, is the wording adopted by the Civil Service Commission itself in enacting, on the approval of the Lieutenant Governor in Council, section 6 of Regulation 881 under the Public Service Act. We note, first of all, that section 30 of the Act expressly empowers the Commission to make regulations.' I . . . (w) respecting any matter necessary or advisable to carry on effectively the intent and purpose of [the] Act." "Section 6 of Regulation 661, as pointed out above, provides that "the unclassified service consists of "contract employees" and "is divided into" 3 groups, which are set out in detail in the remainder of the section. That languaqe is cast in a way that is "exhaustive" (as opposed to "inclusive"), and appears to provide, in a way expressly authorised by section 30 of the Act, a definition of the kind of situation contemplated by inclusion of a power of appointment to the lr@lassified service by way of section 8 of the Act. Those 3 "Groups" set out in the Regulation, on the other hand, cover a very wide range of situations, and obviously create a broad degree of discretion in a minister when considering a fixed-tens appointment to the unclassified service, rather than an open-ended appointment to the classified. In fact, the bulk of the appointment to the unclassified staff would in all likelihood "speak for themselves," in the sense that they would by their very nature, fall within the terms of section 6. It may well be that in such cases no further evidence from the employer will be needed. It is only, in other words, where the evidence pertaining to the position suggests on its face that the positlon fits into - a - Ee of the cateqories of employment set out in section 6 of the Regulations that an onus will arise upon the employer to present evidence of its own which would demonstrate that the appointment did in fact fall within one of the specified categories. “This is one of those cases. The position to which the qrievor was appointed clearly was not “seasonal, ” had no different hours or other conditions of employment than the similar position to which persons had been appointed to the classified service, and all of the evidence we have as to the temporal nature of the position pointsLto the contrary of it being of a “non-recurring” or “temporary”b kind of posl tion. Yet, as discussed, we are compelled to wnclude that section 6 of the RegulaCions, by its very tents, requires an appointment to the unclassified service under section 8 to fall within one of the cateqories set out in the Regulations. Counsel for the employer, in light of the fact that no evidence of the employer’s intentions or perceptions with respect to the qrievor’s position was called, urged the Board to assume that the limited - term appointment would not have been made without the kind of “good reason” which section 6 of the Regulations itself sets out. “We are not prepared to do that. Accordingly, we must find on the evidence that we do have that the position to which the qrievor was appointed was not one which falls within any of the various situations encompassed by the 3 Groups set out in the Regulations, and as contemplated by section 8 of the Public Service Act. We find, therefore, that the purported appointment of the grievor to the “unclassified” as opposed to the “classified” service was improper. . . . ” This Decision was reviewed by the Divisional Court and that application dismissed. The Ministry has since filed for leave to appeal to the Court of Appeal. At the time of the writing of this Preliminary Award that motion is pending. **In the Decision of the Divisional Court, which related to Beresford and the subsequent Board decision in Milley and Ministry of Revenue (GSB 1972/87) which followed Beresford, Mr. Justice Osler for the court wrote: The attack upon the Board has been made on the basis that section 6 of Ontario Regulation 881 of the Public Service Act is in conflict with section 8 thereof. . . . **See Footnote at page 2. ‘_. e .: - 9 - It was submitted that these two enactments are in conflict. That is not the view of this Court and we see Regulation 6 aa elaborating upon and, perhaps defining the unclassified service to which section 8 refers. AS no conflict exists, we see no error in the finding of the Board or in the methods by which they proceeded and, accordingly, both applications will be dismissed." Supreme Court of Ontario, Divisional Court (Court file No. 1195/87). That brings us ‘to the subsequent decision of this Board in Hm. The I decision in that matter was issued on November 7, 1988 by a differently constituted panel chaired by D., Fraser. On a review of the Beresford doctrine, the Board was faced with a new and different argument not referred to in Mr. Mitchnick's decision: namely, the application of subsection 30(3) of the Public Service Act to an alleged conflict between section 3.4 of the collective agreement between the parties, and section 6 of Regulation 881 under that same statute. Hugh Hicks had been employed as a Residential Counsellors' Assistant in the Ministry of Community and Social Services at the time of his termination. He had served in that capacity in a series of fixed term contracts since 1981. When his last contract expired on November 30, 1987 he was not given another contract. Under that last contract he worked 40 hours per week. He grieved under the Beresford doctrine that he was perforce a classified employee and entitled to grieve the purported termination under clause 18(2)(c)of the Crown Nmplovees Collective Barsainino Act which deals with unjust dismissal. The Hicks dispute proceeded on the grounds that that grievor's employment was unlike either Group 1 or Group 3 of subsection 6(l) of Regulation 881 but that it was similar to Group 2 in clause 6(1)(b) with one exception: Hugh Hicks worked 40 hours per week, - not "fewer than 40 hours - 10 - per week." The rest of Group 2 requirements were met by his employment contract. Mr. Ryder again argued the union's case in Hm. Christopher Riggs appearing for the Ministry proposed that an overtime provision of the collective agreement which contemplates an unclassified employee working a 40 hour week, must overede the anomaly of the grievor's employment not falling squarely within section. 6 of Regulation 881. He referred the Board to subsection 30(3) of the Public Service Act: 30. - (3) Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the Regulation. The provision of the collective agreement that Ministry counsel cited was section 3.4: 3.4 One and one-half (l/2) times the basic hourly rate shall be paid for authorlred hours of work performed: (a) fbl IC) fd) in excess of seven and one-garter (7 l/4) or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one- quarter (36 l/4) or forty (40) hour work week, es applicable, or in excess of the scheduled hours for employees who work on a regularly scheduled work day exceedinq eight (8) hours, or in excess of the employees' regularly scheduled work week, or in excess if thirty-six and one-quarter (36 l/4) or forty (40) hours per week where employees do not have regularly scheduled work days. Vice-chairperson Fraser concluded that Beresford and Ml4 were correct insofar as they went and were applicable. He then went on to rule at page 18 of the Decision that there was an apparent conflict between the provision of overtime in subsection 3.4(a) for employees who work a regular 36 l/J or 40 hour week pd the requirement in section 6 of Regulation 881 that Group 2 employees work fewer than 40 hours per week. In one case, a regular 40 hour week is recognized for unclassified staff; in the other it is not. Vice-chairperson Fraser then found that the alternative in subsection 3.4(a) which contemplates a regular 36 l/J or 40 hour work week can only apply to Group 2. He then applied subsection 30(3) of the Public Service A& to bring the provision of subsection 6(l), clause (b) of Regulation 881 into conformity with his interpretation of the provisions of section 3.4 of the collective agreement by reading into it the words "or equal to" at the end of subclause (i) of clause 6(l)(b) so that it is interpreted to read: (1) for fewer than twelve consecutive months and for fewer than or eoual to lB) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week, The approach brought the grievor within the description of Group 2 employees and accordingly a duly appointed member of the unclassified service. The union in the subject case challenged the reasoning pf this Board in Hicks -- In a written submission, it referred us to a decision of the Supreme Court of Canada Multiple Access v. NcCutcheon (1982), 138 D.L.R.(3d)2. Analogizing the issue of conflict between the terms of the collective - 12 - agreement and the provisions of Regulation 881 and the application of subsection 30(3) of the Public Service Act with the issue of conflict between valid federal and valid provincial laws, it argued that there is no conflict unless provisions overlap in the sense that compliance with one law involves breach of the other. Counsel for the union quotes Chief Justice Dickson at D.L.R. p. 23-24: L I . ..there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says yes and the other said no; "the same citizens are being told to do inconsistent things:" compliance with one is defiance of the other." In union counsel's submission, in our case we do not have such a conflict: the collective. agreement does not say the employer must pay overtime in a situation where the Regulations prohibit paying overtime. As one provision deals with the circumstances under which an employee may be appointed to the unclassified service, and the other deals with the payment of overtime, it is not impossible to obey both. Furthermore, section 6 does not require that all Group 2 employees on contract work fewer than 40 hours per week. The first category in Group 2 contains two sub-categories of employees: while the first relates to those employees for fewer than twelve consecutive months and for less than full time hours, the second category of employee (clause 6(l)(b)(ii)) consists of employees who are employed on a project of a recurring kind, "for fewer than eight consecutive weeks per year" on a contract of 36 l/J or 40 hours per week. Therefore the Regulation does have a category of employees who work 40 hours per week and do comply with the collective agreement. - 13 - Counsel for the Ministry responds that the doctrine set out in the Multiple Access case and the meaning of "conflict" within that doctrine, have no applicability to subsection 30(3) of the Public Service Act. That provision is not a "paramountcy clause," like the constitutional doctrine analyzed in Multiple Media in relation to purportedly conflicting federal and provincial legislation~which are both otherwise validly enacted. Mr. Slater distinguished the paramountcy doctrine from the subsection 30(3) situation as follows: the parties to the collective agreement have no exclusive jurisdiction over the terms and conditions of employment. The collective agreement will be subject to law and the parties cannot by agreement opt out of a statute. There can be no concurrency between a collective agreement and a statute. The basis for the paramountcy doctrine, i.e. the ability of the respective levels of government to operate independently of each other in their respective spheres of exclusive jurisdiction, does not exist in the case of statute law and a collective agreement. The Ministry Counsel referred the Board to a court decision dealing with sections 4 and 5 of the Emplovment Standards Act, namely Fanaken v. Bell, Temple (1984) 46 OR (2d) 255 (Divisional Court). In that case the Court according to counsel, adopts a broader concept of conflict than in the federal paramountcy doctrine. The Court found that by giving oral notice of termination of greater length than the requirement for written notice of termination under the Emulovment Standards Act, the employer had conferred a greater benefit as part of the employment contract and that therefore that notice prevailed over the provision of the Act. Comparing that with the paramountcy doctrine counsel submits that the union approach would allow the - 14 - two notices to co-exist. The Ministry argues that the standard of conflict in Fanaken is similar to that applied by this Board in Hicks to subsection 30(3) to the Regulations and the collective agreement. With respect to the union's submission that there is no conflict between the collective agreement and the Regulations, the Ministry counsel submits that there &‘a conflict namely because the only Group 2 employees to which subsection 3.'4(a)' of the collective agreement can apply are those described in clause 6(l)(b)(i). The Board in Ha was correct because subsection 3.4(a) cannot apply to the other Group 2 employees (i.e. under clause C(l)(b)(ii)) because they do not fall within the definition of employee in the Crown Nmulovees Collective Bargaininq Act: they are specifically excluded by the definition of employee by clause 1-(l)(f)(vi) of that Act. The collective agreement also excludes such persons under Article 1. In the alternative, Ministry counsel argued that there is a conflict between section 6 of the Regulations and section 3.8 of the collective agreement. Section 3.8 contemplates unclassified employees working regular 40 hour weeks in excess of eight consecution weeks a year. Subsection 3.8.1 extends benefits to unclassified employees who work 40 hours a week on a continuous unbroken, full-time basis, commencing before April 1, 1978. The reasoning of this board in Hicks at page 16.20 applies similarly to this conflict" The first issue I examine is the interpretation that subsection 30(3) of the Public Service Act properly bears. It is an unusual statutory provision. Normally, a collective agreement would need to comply with applicable legislative law, be it statute or regulation. Subsection 30(3) reverses the usual rule that an Order-in-Council takes precedent over the - 15 - conflicting contractual term. In this respect, however, it is important to note that one of the contracting parties is in fact the Management Board of Cabinet. In yet another relevant collective agreement the employers are the Liquor Control Board of Ontario and the Liquor Licence Board of Ontario which are both appointed by the Lieutenant Governor in Council. In this regard I find the Fanaken decimion significantly different. The Emplovment Standards As for the most part sets minimum standards for private sector employment but l permits provisions more generous to employees than these standards to be contracted between the employer and the employee. That is in fact what happened in Fanaken. The law firm Bell, Temple gave more notice to its employee than was required under the Act. Therefore, the employee could not enforce the statutorily mandated minimum. It is conceptually a different issue from subsection 30(3) and the lanuuace of sections 4 and 5 of the Emolovment Standards Act is not all like that of subsection 30(3) of the Public Service Act. Furthermore, it exists in an entirely different context. In the employment standards situation, both the statutory provision and consensual contractual terms deal with the same matter: i.e. notice; one may 0 be more generous than the other. Turning then to Hicks we examine the nature of the apparent -, conflict which the Board identified. The conflict was one between the apparent recognition in collective agreement subsection 3.4(a) of a regular 40 hour work week, which could only be for Group 2 employees if it is to be given any force and effect, and the requirement in section 6 that Group 2 employees work fewer than 40 hours per week. Therefore, that panel of the Board stated, there is a conflict because the collective agreement provides for the payment of overtime for employees who under the Beresford doctrine could not be l - 16 - appointed properly or legally under Regulation 881 for the time period and work period of their active appointment: namely fewer than twelve consecutive months and [equal to] 40 hours per week. No real factual background was laid for this analysis. We are not told whether when subsection 3.4(a) was added to the collective agreement, persons in the Hm situation were actually employed at the time. There is no history of the background of the negotiations leading'to subsection 3.4(a). In any event, I find it difficult to understand w& the Board characterizes this as a conflict. If subsection 3.4(a) does apply only to someone in H&@' position and if &&g' appointment to the unclassified service is not proper under Regulation 881 under the Beresford doctrine, why is there any conflict? Even if Hicks was improperly appointed if he actually works overtime, he would still be paid in accordance with the terms of the collective agreement. The collective agreement is the standard under which he is in fact paid: the government would pay him that rate even if his terms of appointment to the unclassified service are' in violation of the Regulation (or indeed the Act). Having so appointed him, the Ministry could not be heard to say that he could not be paid for overtime he actually worked. But more importantly, the collective agreement does not purport to legitimatize his appointment - it only stipulates that if be works overtime within its terms he must be paid overtime. The only w theoretical possibility would be, in my opinion, that Hicks is therefore not covered by the collective agreement & a. In this regard, it is important to note that the Board in Beresford actually remitted 'the matter back to the parties as they had agreed. If Hicks is not covered by the collective agreement, and if his category & the g&y one covered by subsection 3.4-(a) but his appointment is illegal or improper under - 17 - Regulation 881, then subsection 3.4-(a) has no other group of employees to which it can apply. The Board in Hicks did feel required accordingly to rewrite the Regulation. but if that is the theory and such is the conflict perceived, then there are several very serious problems with it. The first problem is the one that I have outlined above: I cannot read subsection 3.4-(h) of the collective agreement as intending to increase the range of possibie appointments under the Regulation nor do I see it by necessary implication doing such. Even assuming that the Hicks situation ias the only type of unclassified employment existing at the time the parties negotiated 3.4-(a) which fell within its terms, it is nevertheless inconceivable and impossible that either party contemplated that the H&& type appointment was illegal and that they were remedying that situation by adding 3.4-(a) to the collective agreement. If they merely dealt with a & facto situation then the terms negotiated would not go beyond the factual reality with which they dealt at the time, i.e. some persons were in fact working on these terms. There is ~g reason for finding that subsection 3.4- (a) was ever 'intended by the parties to breathe life into an "improper appointment" to the unclassified service. there is, therefore, no basis on which subsection 30(3) become available to rewrite the Regulation in the manner in which the H&& panel purported to do. If subsection 3.4-(a) now has no group to which it can apply, it is spent. The second issue is a broader and more serious one than that of interpreting the collective agreement. The authority of the deputy minister to appoint to the unclassified service exists in the Public Service Act section 8. The Beresford panel found that it is not an unlimited power. At page 14 it interprets section 8: - - 18 - "That wording would, therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited - term basis, there must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the unclassified source." The limitation therefore appears to find its source in section 8 of the Public Service. Act itself -- The Regulation appears only to flesh out the terms of that l'imited power. There does not seem to be any open-ended l residue of power of appointment remaining in section 8. The existing regulation at the time of Beresford appears to exhaust the general SCONE of the appointment power. However, the panel in Hicks in fact used subsection 3013) to "read" Regulation 881 in such a way as to substantially change the appointment power in section 8 of the Act as it had been defined by the Beresford panel. Obviously, subsection 30(3) cannot be used to expand the appointment power beyond the statutory mandate in the Public Service Act. The Beresford language defines the statutom power to appoint to the unclassified service as something "distinguished . . . from the "normal" "permanent" position in the classified source." Apart from the question of the proper 0 techniques for "reading down" of statutes or regulations - a constitutional law doctrine, - there is m legal authority for the Board to use subsection 30(3) to expand the statutory authority of the deputy minister. Furthermore, I add that the bargaining parties cannot through the collective agreement expand those statutory powers of appointment. Only the Legislature can change the Public Service Act. Counsel argued for different interpretations of subsection 30(31 as I have set out above. Although given what I have written above, it may not be entirely necessary to deal exhaustively with the scope of subsection 30(3), - - 19 - I would note that it should be read narrowly. It is an unusual provision. It is there to allow the parties to negotiate terms and conditions of employment without having to amend the Regulation to allow the collective agreement to operate. It requires an interpretation of the purpose and effect of the applicable provisions of m the collective agreement and the Regulation first to decide wheth&r there is a conflict. Where both are valid but cannot both operate together the collective agreement applies. But in Hm and in the case before us there was no proper appointment under the Act or the Regulation and there & no conflict between the collective agreement and the Regulation. The Regulation was not complied with at all and'the collective agreement does not intend to create something which does not already legally exist. Is there in fact any subject matter to which subsection 3.4(a) of the collective agreement can apply? The union argued in favour of Group 2 (clause C-(l)(b(ii)) of Regulation 881. Literally subsection 3.4-(a) would apply to an employee hired on a 6-l(b)(U) contract - he would work a 40 hour week regularly during the term of the contract and if he should work over the 40 hour week would be entitled to overtime pay. Mr. Slater argued that they are not Crown employees under clause l-(l)(f)(vi) of the CxCsA Act. It provides: l- (1) In this Act ff) "employee" means a Crown employee as defined in the Public Service Act but does not include, . . . (vi) a person not ordinarily required to work more than one-third of the normal period for persons performing similar work except where the person works on a regular and continuing basis. - 20 - No case law was cited interpreting that provision. There was no discussion of what the "normal period" in that provision refers to. A person contracted under clause 6-(l)(b)(ii) by definition works on a project of a recurring kind and 40 hours per week, but fewer than eight consecutive weeks per year. There doestiot seem to be anything inherent in that contract which excludes it from the' bargaining unit pursuant to l-(l)(f). Certain types of employees may in fact not work more than eight consecutive weeks in a year but clearly are in the bargaining unit. I do not read the definition section as excluding from the bargaining unit short term unclassified employees who nevertheless work 40 hours a week from and accordingly subsection 3.4-O would in fact apply to them if they worked overtime. Mr. Slater also referred to an alleged conflict with section 3.8 of the collective agreement and the Regulation. This is the sick leave provision. It requires only one month of continuous work at a 36 l/4 or'40 hours work per week to accumulate (1 l/4) days for each calendar month. Someone in the clause 6-(l)(b)(H) category of Group 2 could fall within this term. (Group 3 employee also can accumulate sick leave after a month's employment under the similar provision subsection 3.8.1). There is no requirement of eight consecutive weeks to qualify for sick leave under subsection 3.8-1J.t only requires one month. If a person worked on a seven week contract, 40 hours per week, he would have available 1 l/4 days accumulated sick leave available after the first month in case of illness during the balance of his seven week contract. As for the reference to accumulation re April 1, 1978 in that provision,it does not refer specifically to "eight weeks." There may have been in fact various unclassified service - 21 - employees who were on a series of term contracts of different types COntiIIUOUsly unbroken and full-time prior to April 1, 1978. We have no historical background before us. The provision would now appear of historical significance only and I have no factual basis on which to conclude that it never had any appointments under Regulation 881 to which it could apply. In any event, even if Wat should be the case, it then encounters the same problems discussed above, as does section 3.4-(a) analysis under the Ha l approach. It does not and it cannot expand the power of appointment or go beyond its own intent. For all of these reasons I conclude with all due respect that the panel in Hicks wrongly declined to apply Beresford to the facts before it. In my opinion Beresford is correct and ought to have been applied in Hm, and properly applies to the appointments of the grievors in our case - their situation being the same as those in Beresford and Hm. In Tsiotsikas and the Hinistrv of Skills Development (GSB 907j88) in a preliminary award, dated April 20, 1989, this Board refused an adjournment of the same issue before us. The continuation of that case is pending. In that case, I examined the decision of the Board in Ba and Amalsamated Transit Union and Toronto Area Transit Oueratinu Authority (GSB 1276/87) in which the Chairperson of the Board held that it would be exceptional circumstances in which one panel of the Board would refuse to follow the decision of another panel of this Board. I fully agree with the @&l-c= doctrine. 'One of those exceptional circumstances however is where there is a conflict between two decisions of this Board (Tsiotsikas). Furthermore, the parties in this case did not want a postponement pending the court decisions. Such is the present situation. In my opinion Beresford and Hicks - 22 - cannot co-exist; and Beresford is manifestly correct and Hicks is manifestly m. Accordingly, I will follow and apply Beresford. Having found that the grievors were not properly appointed to the unclassified service, this Board now turns to the question of whether the grievors are entitled to rely on section 4.1 of the collective agreement. In Beresford by agreemenf of the parties, once the Board had determined that the grievor was improperly' appointed to the unclassified service the Board remitted the matter to the parties to attempt to fashion a remedy while the Board remained seised in the event the matter could not be resolved between them. To this date, presumably because of several applications for judicial review, that issue still remains outstanding. In my view, the Beresford approach is the proper one at this stage. The issues are complex and novel: the parties are the people who will be affected by the result. They should try to fashion their own solution before this Board intervenes. Accordingly, the matter is remitted to the parties to fashion an appropriate solution, failing which this Board remains seised of the grievances. The union also argued an estoppel but in light of our decision above, we ought not deal with il) that. Another grievance filed by Jeffrey Dunn (GSB 1912/87) complains that the Ministry refused to conduct a second stage grievance hearing under subsection 27.3.3 of the collective agreement. The union relied on OB (Union Grievance) & Hinistrf of Correctional Services (GSB 0435/87) a decision of a panel chaired by vice-chairperson Ian Springate. I certainly agree with that decision. In that case, Vice-chairperson Springate required that the employer hold the stage two meeting. Inasmuch as we have already remitted this matter to the parties to fashion a solution resulting from the - 23 - application of the Beresford decision, we further direct that a step two grievance meeting also be held as part of that process. At the time of the second stage of the grievance, it may not have been as clear to the Ministry as it now is that the second stage grievance meeting is compulsory. At this point, I feel this is a sufficient remedy for that error. r The union\has requested and the Ministry does not oppose that this Board direct the Ministry to produce the documents relating to the job competition should that become necessary. The incumbents do not object. We so order subject to any objections which might be raised at any continuation of the hearing on any issues of admissibility. IlAm at Toronto this 29th : day of .1~ne,1989. ,- (g-Y- &km& ' T.H. WilSOn,Vice-Chairperson, "I dissent" (written dissent P. Camp, Member to follow)