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HomeMy WebLinkAbout2015-1394.Association.16-08-29 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-1394 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Association) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING April 8, August 17, 2016 - 2 - Decision [1] The Board is seized with an association dispute dated May 22, 2015. The material part of the dispute is as follows: AMAPCEO hereby files an Association dispute pursuant to Articles 15.7.2. of the Collective Agreement. AMAPCEO asserts that the way in which the Employer has implemented the Letter of Understanding re: Reclassification of Certain Positions (the ‘LoU”), a copy of which is attached, is a violation of the LoU, Article 3 (Management Rights) of the Collective Agreement, and any other applicable articles of the Collective Agreement or other legislative Act or regulation. AMAPCEO asserts that the LoU obligates the Employer to reclassify positions which share job description numbers (JDNs”) with those originally set out in the appendices to the LoU. On April 2, 2015 AMAPCEO was notified that the Employer refuses to reclassify a series of positions which have JDNs that match those originally set out in the appendices to the LoU. A list of the positions AMAPCEO knows to be in question, and their current incumbents, is enclosed. AMAPCEO reserves the right to amend this list should new positions requiring reclassification come to the Association’s attention. The remedies AMAPCEO seeks include: . The retroactive reclassification of any positions sharing a JDN with those listed on Appendices A, B or C to the appropriate salary level and effective date; . A communication to impacted employees regarding the Employer’s violation of the Collective Agreement and any remedy ordered as a result of this dispute; . Any other redress, monetary or otherwise, that may be necessary to make individual employees and the Association whole for the breach of the Collective Agreement. [2] The relevant facts are substantially not in dispute and were presented by counsel orally. No viva voce evidence was tendered. The parties had been engaged in an on-going review and revision of the classification structure for a number of years predating the current 2014-2018 collective agreement. However, all classification issues had not been resolved at the time the current agreement - 3 - was concluded. At that time the parties entered into a “Letter of Understand” (“LoU”) as follows: Letter of Understanding re: Reclassification of Certain Positions (a) The Parties agree that the job description associated with the job description numbers set out in Appendix A and B will be replaced with the “Senior Architect Job Description” and the “Senior Project Manager Job Description”, respectively. These positions will be classified at Level 7 effective date of ratification. Further, the job description numbers set out in Appendix C will be reclassified, as described in Appendix C, effective date of ratification. (b) The Association acknowledges that no new regular positions have been created as result of this Letter of Understanding. The Association agrees that Article 18 (Posting and Filling of Positions in the Regular Service) does not apply to the reclassification of the positions referenced in Appendix A and B. Further, the Association agrees that the Pay Administration Rules in Paragraph 10 of the Memorandum of Agreement re: Implementation of New Job Evaluation System applies to the impacted employees in Appendix A, B and C. (c) Nothing in this Letter of Understanding limits the Employer’s right to evaluate and classify positions. (d) Nothing in the letter limits the rights of employees in any of the positions referred to above or the right of AMAPCEO to pursue all applicable claims filed in the dispute resolution process filed pursuant to the Memorandum of Agreement Regarding Implementation of the New Job Evaluation System (e) This letter does not form part of the Collective Agreement. (letters for paragraphs added for convenience) [3] Attached to the LoU were the following three appendices: Appendix A: Job Description Numbers that will be encompassed in the New Senior Architect Position. Appendix B: Job Description Numbers that will be encompassed in the New Senior Project Manager Position. Appendix C: Non-Architect and Project Manager Jobs. - 4 - Each Appendix consists of six columns: Employee ID, Name, Position Number, Job Description Number, Current Classification; and Proposed Classification. Under each column there is a listing of the applicable information for each named employee. Each position occupied by the incumbents named in Appendix and B is classified higher in the “proposed classification” column, from a lower “current classification” of level 6 to level 7. [4] All positions in the appendices are IT positions from across the Ontario Public Service. The dispute arises from the different interpretations of paragraph (a) of the LoU, as it applies to appendices A and B. That paragraph provides for two things. First, job descriptions of the impacted positions are replaced with the new job descriptions “Senior Architect” (for Appendix A), and “Senior Project Manager” (for Appendix B). Secondly, these positions are then reclassified at level 7. In implementing the LoU, the employer determined which positions would be reclassified up to level 7 under the LoU. The incumbents of the positions listed in the appendices are the only individuals that benefitted. [5] AMAPCEO counsel argues that under para (a) of the LoU, positions that get their job descriptions replaced with the new job descriptions are those with a “job description associated with the job description numbers set out in Appendix A and B”. Based on these words, counsel submits that any position that has a job description number corresponding to a job description number that appears on Appendix A or B must be reclassified up to level 7, regardless of the duties and responsibilities of the position. She submitted that this was a one-time monetary benefit agreed to. It benefits only a small number of employees who at that moment of time held positions with job description numbers listed in the appendices. The benefit has no on-going effect. She submitted that when seen in the context of the background of an on-going attempt by the parties to revise the classification system, AMAPCEO’s interpretation does not lead to an absurdity, and the clear language in the LoU must be given effect to. - 5 - [6] Counsel submitted that if the employer had a different understanding of what the language meant, that would be irrelevant because there is no evidence that there was any discussion between the parties about what the agreed to language meant. Nor did the employer communicate to AMAPCEO its intent when it agreed to the language. As written, the determining factor is the job description number. To uphold the employer’s position would be to ignore the clear language giving primacy to the job description number in determining which positions are to be reclassified. She requested that the Board uphold AMAPCEO’s interpretation, allow the dispute, and remain seized. [7] Counsel for the employer pointed out that the LoU was part of an on-going review of classifications. The purpose of the Lou was to standardize numerous Information Technology job descriptions that prevailed across the OPS. To achieve that goal, fifteen IT directors from across the OPS developed four standard job descriptions, namely, Architect, Senior Architect, Project Manager and Senior Project Manager. Local managers evaluated the current duties and responsibilities of each employee against the new job descriptions. Those found to be performing at a sufficiently senior level were identified and listed in appendices A and B. They had their job descriptions replaced, and their positions were reclassified up to level 7. [8] Counsel points out that if the intention of the parties was to reclassify positions solely on the basis of the job description number, it would have been simple for them to have included a “catch all” provision to the effect that any position with the specified job description numbers shall have its job description replaced and shall be reclassified at level 7. Instead, they included appendices which, in addition to the job description number, identify jobs with a particular employee ID number, employee name, and position number. He submitted that if the sole determinator was the job description number, the parties would not have had any reason to set out all that detailed information relating to particular positions in the appendices. He submitted that the reference in para. (a) to “the job description numbers set out in Appendix A and B” is merely descriptive. It does not indicate - 6 - an intention that every position bearing the job description number would be reclassified. [9] In support of his interpretation, he pointed out that in Appendix A, multiple positions with the identical position description number are listed. For each of those positions, information on employee ID number, employee name and position number is also set out. For example five incumbents of positions with different position numbers, but all with the job description number 11076, are listed along with all of the other information. If AMAPCEO’s interpretation was intended, the parties would have achieved that intention with certainty by simply stating that all positions with the following job description numbers including 11076 will be reclassified. It would have been completely unnecessary to provide all of the other detailed information relating only to some positions with that job description number. [10] Counsel pointed out further that in Appendix A, the parties have listed four positions for which the employee ID number, employee name and position number are set out. However, no job description number is set out for any of those four positions. There is no dispute between the parties that despite the absence of a job description number in the appendix, those positions were intended to be and were reclassified up as part the LoU. Counsel submitted that this is a clear indication that job description numbers had nothing to do with the determination of the positions that would be reclassified under the LoU. The only positions to be reclassified were those listed in the appendices based on the duties and responsibilities of each position. Counsel for the employer urged the Board to find that the intention of the parties was that only the positions listed in the appendices A and B would be reclassified up. [11] In reply, counsel for AMAPCEO submitted that the facts set out by employer counsel about how the directors developed standard job descriptions, and how managers determined the positions to be reclassified, are not agreed facts. She noted that there is no suggestion that the employer gave notice to AMAPCEO - 7 - that only some, and not all, positions with job description numbers included in the appendices would be reclassified. She submitted that in the circumstances, the Board should not rely on those facts to alter the clear meaning of the actual language used by the parties in the LoU. [12] Counsel further argued that there is no evidence as to why the employer included other detailed information in addition to the job description/numbers in the appendices. Similarly while it is correct that some of the positions listed in the appendices do not have job description numbers, and that multiple positions listed have the same job description number, one could only speculate the reason for that. In the absence of evidence about the reason, the Board should not draw a conclusion which is contrary to the clear language of the LoU. DECISION [13] I have reviewed the documentation filed and the jurisprudence on cannons of interpretation relied upon by the parties, as well as their submissions. The employer’s position was that when the language is read in the context of the LoU as a whole, its interpretation must prevail. AMAPCEO’s contention essentially was that the language is clearly in its favour, and that no cannon of interpretation should lead the Board to depart from the plain meaning of that language. [14] It is trite to state that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it. The parties referred to the summary of the cannons of collective agreement interpretation arbitrators utilize in achieving that objective, set out in Re Ontario Power Generation 2012 Carswell Ont. 16996 (Surdykowski) as follows: 17. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings and specific provisions - 8 - prevail over general provisions. Both the words that are there and the words that are not there are significant. 18. Although as a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. Although much has been written about purpose, fairness, internal anomalies, administrative cost or feasibility, and what “should be”, such considerations only come into play when the language is truly ambiguous and the arbitrator must apply established labour relations principles in order to choose between two or more equally plausible interpretations. The rights arbitrator’s task is to determine what the collective agreement provides or requires, not what he or either party thinks it should say. If the language is sufficiently clear it must be applied as written regardless of any associated costs or administrative difficulties, or any apparent fairness of the effect on either party or the bargaining unit employees. … 20. More to the point is the decision in Golden Giant Mine [[2004] O.L.A.A. No. 600 (Ont. Arb.)] which is representative of the line of arbitral authority which stands for the proposition that entitlement to a monetary benefit must be derived from clear collective agreement language, and that such an entitlement cannot be inferred or implied. … [15] AMAPCEO focuses on “the fundamental rule” at para. 17 that “words used must be given their plain and ordinary meaning”. The employer places emphasis on para. 20 which refers to “a line of arbitral authority which stands for the proposition that entitlement to a monetary benefit must be derived from clear collective agreement language”. [16] The “clear language” AMAPCEO relies on states that “the job description numbers set out in Appendix A and B” will be replaced with the new job descriptions and that “these positions will be classified at level 7”. Counsel submits that when read literally that language is clear and supports its interpretation. However, in my view, it is not in accordance with established - 9 - cannons of interpretation to read those words in isolation. In Brown & Beatty, Canadian Labour Arbitration, at 4:2110, the authors have set out a number of exceptions to the “plain or literal meaning” rule AMAPCEO relies on. It includes the following, “In searching for the parties’ intention with respect to a particular provision in the collective agreement, arbitrators have generally assumed that the language before them should be viewed in its normal and ordinary sense, … unless the context reveals that the words were used in some other sense”. In Ontario Power Generation, (supra) itself, arbitrator Surdykowski also recognizes this exception. He wrote, “the fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended …” He also notes that “all words must be given meaning”. [17] AMAPCEO agrees that under its interpretation a monetary benefit would flow to employees, and that therefore, there has to be clear language to support such a claim. The Board is required to read the provision AMAPCEO relied on in context. A significant component of the “context” is the other provisions of the document to be interpreted. Brown and Beatty, (supra) at 4:2150 write, “Thus, it is said that the words under consideration should be read in the context of the sentence, section and agreement as a whole”. The issue therefore, is whether the language in para. (a) has that level of clarity in favour of AMAPCEO’s interpretation, when seen in the context of the whole LoU. After careful consideration, I conclude that it does not. The language “the job description associated with the job description numbers set out in Appendix A and B”, must not to be read literally in isolation. The parties certainly could have used more detailed language in para. (a) to the effect that “positions held by employees named in the Appendix A & B, with the employee identification numbers, and position numbers set out in the appendices”. However, even in the absence of that detail, the LoU as a whole clearly indicates that they did not intend to reclassify every position that bears a job description number that matches a job description number that appears in the appendices. - 10 - [18] As employer counsel pointed out, the appendices set out more information than the job description number. They identify particular employees by name and employee ID number. They specify the position number of the position held by each employee. It is not in dispute that there are multiple positions with different position numbers that share a common job description number. In fact, as reviewed earlier in this decision, examples of this are listed in the appendices themselves. Moreover, some of the positions listed in Appendix A, and are therefore to be reclassified, do not even have a job description number listed. As arbitrator Surdykowski stated in Re Ontario Power Generation (supra), all words in the agreement must be given meaning and words that are not there, (in this case the absence of job description numbers) are also significant. [19] Counsel for AMAPCEO correctly pointed out that no evidence was led as to the reason why the additional details of employee names, their employee ID numbers, and position numbers have been set out in Appendix A and B. However, what that means is that the Board is left with the task of interpreting the LoU language without the benefit of any extrinsic evidence. [20] In interpreting the LoU, it is not appropriate to read the one phrase in para. (a) in isolation as AMAPCEO counsel does. Similarly, the rule is that all words used must be deemed to have meaning and not treated as mere superfluous or meaningless verbiage. See, AMAPCEO and MGS, 2011-0995 (Dissanayake) at para 7. If the intention was to reclassify all positions with a particular job description number, the only relevant information would have been job description numbers. The inclusion of additional identifiers, and the inclusion of that detail with respect to several positions with the identical job description number, indicates an intention that not all positions with a particular job description number would be reclassified. [21] To support the claim for a reclassification and resulting monetary benefit, clear language is required. While AMAPCEO’s position is supported if that portion of - 11 - the language in para. (a) is read literally in isolation, when read in the context of the provisions of the appendices, it is revealed that the parties made reference to “job description numbers” in para. (a) as they did, only as a means of linking the paragraph to appendices A and B, and not to indicate that any and all positions with a job description number which appears in an appendix would be reclassified. Normally, in any system of classification, the level of classification and thereby the level of remuneration, is based on the job requirements of a particular position including the level of skills, responsibilities and qualifications. The interpretation advanced by the employer, results in different positions being upgraded to a higher classification merely because they share a common job description number, without any consideration of the job requirements of the positions. That also reinforces my conclusion that the parties did not intend that unusual result. [22] For all of those reasons, I uphold the interpretation of para (a) of the LoU advanced by the employer, and this dispute is hereby dismissed. Dated at Toronto, Ontario this 29th day of August 2016 Nimal Dissanayake, Vice Chair