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HomeMy WebLinkAboutUnion 96-03-1994D390 DURHAM COLLEGE VS OPSEU IN THE MATTER OF AN ARBITRATION BETWEEN: DURHAM COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION POLICY GRIEVANCE BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR JACQUELINE G. CAMPBELL COLLEGE NOMINEE SHERRIL MURRAY UNION NOMINEE APPEARANCES FOR THE COLLEGE: PETER J. THORUP ROBERT A.J. LANDRY DON SINCLAIR APPEARANCES FOR THE UNION: NINA MORITSUGU PETER McKERACHER OPSEU FILE NOS.: 94D390 & 94D391 HEARING DATE: February 9, 1996 This issue in this case is whether Employees are entitled to step increases on, the salary schedule prior to the end of the Social Contract, upon enrolment or completion of the In-Service Teacher Training Certificate Program ("ISTTP"). The ISTTP is dealt with in a Letter of Understanding between the parties dated June 3, 1992 which is appended to the collective agreement and provides as follows: Re: Access to the Salary Scheduled Maximum The parties reaffirm their on-going commitment to the quality of teaching in the CAAT system. The parties have agreed to the establishment of an In-Service Teacher Training Certificate Program in a modularized format which provides accessibility to the employees at each college. The program will be offered by one or more institutions, and an agreement to that effect will be entered into by the Council, OPSEU and the institutions. The objectives, curriculum delivery and length of the program will be developed by the task force (established under the previous Agreement), and shall have regard for the accrued experience of CAAT teachers including teacher training courses and programs completed. Employees who have 15 years or more of service and whose maximum Step is currently below the maximum on the salary schedule and who enroll and participate in the program shall receive (once only) an immediate one step salary progression, to a maximum of the salary schedule, and shall maintain that Step upon maintaining satisfactory performance in the program. Employees who successfully complete the program shall be entitled to progress to the maximum of the salary schedule. For purposes of determining the issue in dispute, the parties provided the Board with an Agreed Statement of Fact which is as follows: STATEMENT OF AGREED FACTS 1. In order to make the arbitration process more expedient, the parties have agreed that the facts in this case are as follows. 2. The Collective Agreement in force between the parties stipulates that with respect to salary schedules, the Agreement was effective as of January 1, l 991. New salary schedules were to become effective September 1, 1992 and September 1, 1993. 3. The Social Contract Act, 1993 (the "Act") came into force in June of 1993, after the 1992 salary schedule increases, but prior to the increases which were to be become effective on September 1, 1993. 4. The parties failed to implement a Local Agreement, as contemplated by the Act, with respect to Academic positions. Accordingly, the compensation for Academic employees was governed by the "fail-safe" provisions of the Act. 5. The most relevant provisions of the Act with respect to compensation are as follows: "24. (1) The rate of compensation of an employee is, for the period beginning June 14, 1993 and ending with March 31, 1996, fixed at the rate that was in effect immediately before June 14, 1993. (2) For greater certainty, 'compensation' in this section includes, (a) merit increases; (b) cost of living increases or other similar movement of or (c) increases resulting from any movements on any pay scale or (3) Nothing in this section prevents increases in compensation as a result of a promotion or acting promotion of an employee to a different position." 6. The parties have agreed that the issue to be addressed in this matter is as follows: (1) Are employees entitled to step increases on the salary schedule prior to the end of the Social Contract, upon enrolment or completion of the In-Service Teacher Training Certificate Program ("ISTTP")? 7. Pursuant to the Letter of Understanding dated June 3, 1992, an In-Service Teacher Training Certificate Program ("ISTTP") was established. Under this program, employees who have completed fifteen or more years of service and whose maximum step is currently below the maximum on the salary schedule (because they do not have the required educational qualifications) and who enroll and participate in the ISTTP shall receive an immediate one step salary progression. The Letter of Understanding further provides that employees who successfully complete the program shall be entitled to progress through the grid up to the maximum of the salary schedule (See page 108 of the Collective Agreement.) 8. The duties and responsibilities of teachers do not change as a result of completing the ISTTP. 9. With respect to the first matter, the parties have agreed to use the situation of Mr. Vic Towell as an example of the issue in dispute. Mr. Towell is classified as a Professor and teaches in the Machine Shop Department at Durham College. He is currently at step 14 on the 1992 salary schedule. (See Article 14.03A of the Collective Agreement.) 10. Mr. Towell enrolled in the ISTTP on or about June l 8, 1990. At that time, he had not accumulated the necessary fifteen years of service in order to qualify for the one step increase pursuant to the Letter of Understanding. 11. In January of 1995, Mr. Towell completed fifteen years of service. 12. Under normal circumstances, Mr. Towell would have been entitled to a one step increase in January of 1995 as a result of attaining fifteen years of service. Mr. Towell would normally also have been entitled to progress to the maximum step on the salary schedule upon completion of the ISTTP in May of 1995. 13. It is the position of the Union that employees who meet the requirements of the ISTTP are entitled to immediately receive the step increase(s). 14. The College takes the position that any such increases on the salary schedule are prohibited pursuant to the Social Contract Act. It was the submission of the Union that the ISTTP was designed to improve the quality of teaching and that a teacher who meets the requirements of the Program is entitled to an increase in compensation in recognition of higher qualifications which constitutes a promotion. In this regard, the Union maintained that a promotion is not limited to a change in classification, particularly where the collective agreement does not contain a diversity of job classifications. Moreover, it was contended that increases in compensation as a result of a promotion are expressly permitted under section 24(3) of the Social Contract Act, 1993. In the result, the Union asked the Board to find that the College breached the collective agreement by failing to grant step increases to employees in accordance with the Letter of Understanding of June 3, 1992. It was the submission of the College that section 24( 1 ) of the Social Contract Act. 1993 fixes the rate of compensation of an employee for the period covered by the Act and expressly precludes increases resulting from movement on any pay scale or other grid system. Moreover, although section 24(3) of the Act contains an exception to this prohibition, that exception is limited to increases in compensation as a result of a promotion to a different position. The College contended that a promotion involves more than an increase in pay and entails, among other matters, a change in duties and responsibilities. In this case, however, it was conceded that there is no change in duties and responsibilities as a result of participation in the ISTTP, nor is there any change in position and, accordingly, section 24(3) has no application. In the result, the College asked the Board to find that step increases provided for in the Letter of Understanding of June 3, 1992 are prohibited by the Social Contract Act, 1993. DECISION As set out above, the Letter of Understanding provides for the establishment of the ISTTP, with matters such as program objectives and curriculum delivery to be developed by a task force constituted under the prior collective agreement. The Letter of Understanding further provides that employees with 15 or more years of service who are below the maximum step on the salary schedule who enroll and participate in the Program are entitled to an immediate one step increase. Employees who successfully complete the Program are entitled to progress to the maximum step of the salary schedule. The issue, then, is whether the Social Contract Act, 1993 precludes step increases provided for in the Letter of Understanding. In this regard, section 24(1) of the Act specifies that for the period from June 14, 1993 to March 31, 1996, the rate of compensation of an employee is filed at the rate in effect immediately prior to June 14, 1993. Section 24(2) provides that compensation includes, (a) merit increases; (b) cost of living increases or other similar movement of or through ranges; and (c) increases resulting from movement on any pay scale or other grid system. Nevertheless, as pointed out by the Union, the proscription against increases in compensation is not absolute and section 24(3) of the Act provides that nothing in section 24 prevents increases in compensation as a result of a promotion or acting promotion of an employee to a different position. As pointed out by counsel for both parties, the term "promotion" has been considered in a number of awards, frequently in the context of job postings. These awards indicate that a promotion generally involves a higher rate of pay or the potential for increased earnings: see Re Kendall Canada Ltd. and United Steelworkers, Local 8905 (1977), 17 L.A.C.(2d) 172 ( Weatherill) and Re Metropolitan Stores (M.T.S.) Ltd. and Retail, Wholesale and Department Store Union. Local 1065 (1979), 22 L.A.C.(2d) 186 (Yeoman). Other indicia of promotion include increased responsibility, different job requirements and the opportunity for further promotion: see Re United Steelworkers. Local 1005 and Steel Co. Of Canada Ltd. (1963), 13 L.A.C. 390 (Little) and Re Metropolitan Stores Ltd. and Retail, Commercial and Industrial Union, Local 206 (1983), 9 L.A.C.(3d) 47 ( Saltman). Moreover, in some circumstances, a promotion may include an assignment to a higher rated job within the same classification: see Re Town of Dieppe and Canadian Union of Public Employees. Local 51 (1982), 9 L.A.C.(3d) 76 (Stanley). In this case, although enrolment and participation in the LTTP result in a higher rate of pay, it was acknowledged that there is no change in job duties and responsibilities. There is also no change in position and as section 24(3) of the Social Contract Act, 1993 is limited to promotions to a "different position", we find that the section has no application. Instead, the Board is of the view that step increases provided for in the Letter of Understanding involve increases resulting from movement on a pay scale or other grid system which are prohibited under section 24(1) of the Act. Moreover, we find that the award in The Corporation of the City of Brantford and Brantford Professional Firefighters' Association July 11, 1994 ( Tacon (unreported)), which was relied on by the Union, is distinguishable. In that case, the Arbitrator found that progression through each of the ranks from 4th to 1st class firefighter constituted a promotion to a different position within the meaning of the Social Contract Act, 1993. In reaching this conclusion, she commented as follows: When one applies the accepted meanings of the term, it is difficult to conclude that movement through the ranks is other than a "promotion". The scheme in place in the collective agreement for the movement through the ranks is explicit and detailed. Firefighters are required to undergo examinations of various types (oral, written and practical) and must achieve a grade of at least 60% on each section. The penalty for failure to attain that standard, at the probationary levels is dismissal and, at the higher levels, dismissal if the individual is unsuccessful at the second attempt. The material is complex and of considerable volume. There are training sessions conducted regularly throughout the year and firefighters undoubtedly gain valuable on-the-job experience. However, given the frequency of the training sessions and the period of time needed to cover the entire syllabus at least once, and even including the opportunities to gain on-the- job experience, there is no doubt that much of the knowledge must be mastered on the firefighter's own time. The examination system and the body of material which must be assimilated underscore the finding that it is not merely the increased experience which is expected to accumulate through performance of one's job which is rewarded financially. In contrast to the other classifications, the salary increase for the various ranks of firefighter are tied to success in the examinations, not the passage of time. That is firefighters who are successful in the examinations on the second attempt receive the salary increase only from that date. The examination system is distinct from the yearly assessments which are conducted of all firefighters regardless of rank. Notwithstanding the able arguments of employer counsel, I am not persuaded that all firefighters constitute a single classification in a sense that would vitiate a finding that movement through the ranks is a promotion. In a colloquial sense, all are "firefighters" and "suppress fires". The evidence demonstrates, though, that the expectations and responsibilities of the various ranks differ significantly. The fact that the City Bylaw only speaks of "firefighter (first class)" reflects the expectation that all firefighters will reach the rank (although, in fact, not all do); the Bylaw does not establish a single classification in which the ranks of 4th to 1st class are merged. In short, I am satisfied that the progress through the ranks from 4th to 1st class firefighter bear the usual indicia of a "promotion" as elaborated in the jurisprudence. There is advancement to a position which carries with it increased responsibilities as well as increased salary. This is a permanent change in status (subject to the scheme of progression to 1 st class firefighter). There are increased job opportunities for further promotion, including for 1st class firefighters. I am satisfied that the parties regard the various ranks of 4th to 1st class as "different positions" within the meaning of the case law and the use of different titles reflects that perception. It is apparent, therefore, that in the City of Brantford award, the Arbitrator found that progression from one rank to another bore the usual indicia of promotion in that it entailed advancement to a position with increased responsibilities, a higher rate of pay and greater opportunities for promotion. The Arbitrator also found that the parties considered each of the ranks to constitute a different position and on this basis, concluded that firefighters who progressed from 4th to 1st class were entitled to the increases in salary stipulated in the collective agreement. In this case, in contrast, participation in the ISTTP does not involve any change in duties or responsibilities, nor does it involve advancement to a different position. Accordingly, for the reasons set out, the Board finds that section 24(3) of the Social Contract Act, 1993 has no application. By virtue of section 24(1) of the Act, therefore, employees are not entitled to step increases upon enrolment or completion of the ISTTP prior to the end of the Social Contract. In the result, the grievance is dismissed. DATED AT TORONTO, this 19th day of March, 1996. Jane Devlin, Chair "Jacqueline G. Campbell", College Nominee "I Dissent", Union Nominee