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HomeMy WebLinkAbout1987-2422.Meszaros.88-08-08-b Tr. I 0 w ONTARlO EMPLOYES OELA COURONNE CROWNEMPLcwEES DEL’ONTARIO I GRIEVANCE CS)MMISS!ON DE tXTl&MENT REGLEMENT. ,. DESGRIEFS 2422/8'1 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: N.A. Luczay Grievance Officer Ontario Public Service Employees Union For the Emdover: L. Pettigrew Counsel Human Reeources Secretariat Hearings: May 25, 1988 OPSEU (Meszaros) - and - The Crown in Right of Ontario (Ministry of Transportation) M.W. Wright, Q.C J. McManus D. Anderson Grievor Employer Vice-Chairman Member Member l -2- DECISION The Grievance is for acting pay. There is no dispute whatever as to the facts; in fact, counsel for both sides did not call viva vote evidence since there was total agreement between them as to the facts of the case. On November 19, 1987 the Grievor's supervisor wrote a letter to the Grievor confirming the arrangements for a femporary assignment of the Grievor to substitute for Mr. D. Rodger while he was on vacation from November 30, 1987 to December 31, 1987. Mr., Kodger is a Party Chief in the Ministry of Transportation. The position of Party Chief is a management position and is not covered by the Collective Agreement. For that reason, the Grievor's supervisor stated in his letter to the Grievor: "As you are aware, acting pay under Article 6 of the Collective Agreement does not apply in this instance". For his part, the Grievor agreed in writing to take the temporary assignment but he expressed his disagreement with the Employer's interpretation that the Grievor was not entitled to acting pay stating: "I still oelieve that I am entitled to acting pay and I must re-emphasize that I don't concur with the interpretation of Article 6 in your letter of November 19/87". Thus, in agreeing to take on the temporary assignment the Grievor did not waive his rights to claim temporary pay and the Employer re-stated his position that temporary pay was not payable in the circumstances of this case. The parties disagree as to the proper interpretation to be given to article 6 of the Collective Agreement. ,- 3 - The relevant portions of article 6 of the Collective Agreement are as follows: 6.1.1 Where a” employee is assigned temporarily to per- form lhedutiesofa p~~itioninaclassificatipn with a higher salary maximum for a period in excess Of live (5) consecutive working days. he shall be pald acting pay from the day he commenced to Perform thedutiesof the higherclassifitiation in accordance with the next higher rate in the higher classification. provided that where such a change resultt in a” increase of less than three~percent (3%). h6 Shall receive the next higher saaly rate again. 6.4 This Article shall not apply to tempPrarY aSSIgn- ments where an employee is temporarily assigned toperform thedutiesand responsibilitiesof another employee who is on vacabon. 6.5 Where a” employee is temp’xarily assigned to per- form thedutiesandresponsibilitiesof a POSitiOn not covered by thisCollective Agreement. he shall retain his rights and obligations under the Collective Ag- reement. (underlining added) The parties agree that the position of Party Chief is excluded from the Collective Agreement. There is no doubt that the Party Chief is not an "employee" within tne meaning of the Crown Employees Collective Bargaining Act since he is a person who is employed in a managerial capacity. In fact, counsel for the Grievor brought to our attention a majority decision of the Ontario Public Service Labour Relations Tribunal presided over by Mr. 0. B. Shime, Q.C. dated February 2. 1983 (OPSEU (T. Cairns et al), Applicant and The Crown in Right of Ontario, Respondent, T/31/81) whicn held that: II . ..it is our view that all the senior Party Chiefs examined in these. proceedings, although their roles, somewhat varied, exercised a super- visory role with respect to the survey crew and, accordingly, we determine that in view of their complete role, they spent a significant portion of their time in the supervision of employees and are, therefore, employed in a managerial capacity within the meaning of the Act and are not employees". Article 6.4 provides that article 6 does not apply where temporary assignment 1 involves the performance of tne duties the and responsibilities "... of another employee who ,is on vacation". Pointing to the decision of the Ontario Public Service Labour Relations Tribunal that a Party Chief is not an "employee" within the meaning of the Crown Employees Collective Bargaining Act it is contended on behalf of the Grievor that the use of the word "employee" in article 6.4 must refer only to a person who iis covered by the bargaining unit encompassed by the .Collective Agreement. We do not agree since if that were the case there would be no sense whatever in providing for the situation contemplated by article 6.5 which deals specifically with a situation involving a temporary assignment to "a position not covered by this Collective Agreement". The identical issue before us arose in Bisaillon and Beauchamp (GSB 130/77) presided over by Mr. George Adams. That panel dealt with the problem in the following manner: "The issue is whether the collective agreement requires that the grievors be paid the appropriate rate of pay of the higher classification assumed during the temporary assignment in accordance with article 6.1 (presently article 6.1.1) when the assignment was for a management employee who was on vacation. 1 The employer relies on article 6.4 (still article 614) which provides' that the entire article does not apply when the temporary assignment is for the purpose of replacing another employee on vacation and on article 6.5 '(still article 6.5) which stipulates that an employee temporarily assigned to perform the duties and responsibilities of a position not covered bythecollective agreement, retains his rights and obligations under the agreement. It is the Employer's position that, while article 6.1 is a "right" within the meaning of article 6.5, article 6.4 is an "obligation" and one that precludes the application of article 6.1 where a vacation is the occasion giving rise to the temporary assignment. I In support of the grievances, the Union argues that the reference to "another" employee who is on vacation" in article 6.4 cannot be inter- preted to mean a person outside the ambit of the collective agreement or, more specifically, a person employed in a managerial capacity. This being the case, the Union submits that article 6.4 is not an obligation under the collective agreement for bargaining unit employees. In support Of this position, the Union took the Board through the various provisions of The Crown Employees Collective Bargaining Act and The Public Sning of the term ervice "employee" for the purposes of The Crown Employees Collecti rrom an analysis of these provisions, the Union concluded that it, as an "employee" organization, lacked authority to negotiate a collective agreement providing for any other meaning to be given to the term "employee". It is the Board's decision that these grievances should be dismissed. In our view the Union sub- missions are without merit. Article 6.5 makes it very clear that an employee retains his rights and obligations under the agreement. Surely the parties did not intend that employees were to have the benefit of this provision without also assuming its burdens. One such burden is article 6.4. Therefore, to give efficacy to article 6.5, not only are the references to assigned positions in articles 6.1, 6.2 and 6.3 to be interpreted to mean positions not covered by the collective agreement where applicable, but also the reference in article 6.4 to "another employee who is on vacation" must be interpreted to include a person employed in a managerial capacity who is on vacation. In our view, this is the only comnon sense result that can flow from the application of article 6.5". - 6 - We agree with the foregoing disposition of the case. We are of the view that gjving "employee" the restricted meaning urged upon us by the Grievor would result in an obvious inconsistency between article 6.4 and article 6.5. The Union's submission to us was essentially the same as it argued in Bisaillon and Beauchampexcept that stronger emphasis was placed on the point that "employee" in articl~e 6.4 does not refer to a person employed outside thebargaining unit. Whichever way one approaches the subject the issue is the same. We agree with the disposition of the issue in Eisaillon and Beauchamp. We cannot improve on the elucidation by Mr. Adams in Bisaillon and Beauchamp and we, therefore, adopt that reasoning as our own in holding against the merits of the Grievance. We are nevertheless constrained to add, albeit gratuitously, that it seems illogical that an emoloyee should be deprived of acting pay when performing the duties of a higher paid position which is outside the bargaining unit but that is a matter which must be left for the parties to settle at the bargaining table. For the foregoing reasons, however, the Grievance must be denied. DATED AT OTTAWA this 8th day of August, 1988. < Lk-4 -, i-. td ” ,- MAURICt W. WRIGHT, Q.C.,,,Chairman I,