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HomeMy WebLinkAbout1991-2884.Bennett et al.97-05-13 ONTARIO EMPt. OY~=$ DE LA COURONNE CROWN EMPLOYEES DE ['ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RI~GLEMENT , BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 'IZ,9 TELEPHONE/T~i..~'PHONE : (410) 320-1388 180, FlUE DUNDAS OUEST, BUREAU 2'100, TOBONTO (ON) MSG 1Ze FAC$1MILEtTLtI.~COPIE : [410) 320-1390 GSB # 2884/91 OPSEU ~ 92B514-524 IN THE MATTER OF AN ARBITRATIO~ Un,er THE C~OWN EMPLOYEES COLLECTIVE BARGaiNING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bennett et al) ~rievor - an~ - The Crown in Right of Ontario (Ministry of Tourism & Recreation) St. Lawrence Parks Commission Employer BEFORE~ D. Leighton Vice-Chairperson T. Browes-Bugden Member F. Collict Member FOR THE K. waddingham GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors' FOR THE L. Brossard EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING' October 24, 1996 Mr. Mark Bennett, an employee of the St. Lawrence Parks Commission, Ministry of Culture, Tourism and Recreation, who works at Fort Henry in Kingston, filed a grievance with the Grievance Settlement Board (the Board) on November 26, 1991 alleging that his employer had been in continuing violation of the collective agreemen~ in designating him as a seasonal employee. Mr. Bennett asked that he be designated properly as a classified employee, and reimbursed for any and all losses which resulted from the violation of the collective agreement. Ten other grievers filed similar grievances in November 1991 and since they were substantively the same they were consolidated for the purposes of the hearing. The matter was set for hearing on November 16, I992, but was adjourned. I~ was not set for hearing again until November 16, 1994, whereupon a differently constituted panel of the Board heard a preliminary objection by the Employer as to the Board's jurisdiction. The decision, dated October 12, 1995, was issued holding that nothing precludes the union from submitting a request to the Chair of the Grievance Settlement Board to have the case reactivated. If that is done, the case is reactivated and notice of reactivation is given to the Employer, then the case m~r/' be brought on as any other case, an the jurisdictional question of whether or net the case is alive and properly before this panel should not be an issue." Thus this panel rejected the Employer's argument that the Board had no jurisdiction to hear the case because the case had been put on an inactive list. On October 24, 1996 this case came forward again for hearing. The parties agreed that each Griever was appointed as an unclassifie~ staff of the Ministry. The Grievers have all been employed under a series of fixed term contracts of various duration. The contracts of employment of the Grievers specify that they are in the Group 3 Seasonal category. None of the Grievers' first contracts extended beyond twelve months. The Employer's counsel made an objection to jurisdiction arguing that this Board could not grant the remedy ~hat has been requested by the Grievers, which is to appoint them to the classified service. Ms. Brossard argued for the Employer that all the grievers had been properly appointed under section 8 of the Public Service Act (the Act), which provides: 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 appointment, a person to a position in the unclassified service in any ministry over which he presides. Regulation 881, passed pursuant to the Act, further provides at: S6(1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into ... S6(1)(c) Group Three, consisting of employees appointed on a seasonal basis for a period of at leas! eight consecutive weeks, but less than twelve consecutive months, to an annually recurring position where the contract provides that the employee is to work either 36.25 hours per week or 40 hours per week semi. Counsel for the Employer argues that all the criteria required under the _Act and the · '- Regulation have been satisfied. Counsel further noted that the collective agreement at 3.18 defines a seasonal employee as follows: A seasonal employee is an employee appointed for a period of at least (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition, full- time means a minimum of (36.25) or (40) hours per week as applicable. She further argued that the collective agreement provides for a conversion of :-~ unclassified positions to classified positions if certain criteria are met, but the grievors did not satisfy the requirements in her view. Article 3.15. I Effective April 1, 1991, where the same work has been performed by an employee in the unclassified service for a period of at least (2) consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the classified service to perform that work, and shall post a vacancy in accordance with Article 4 (posting and filling of vacancies or new positions). Article 3.15.2 For the purpose of this section, (full-time) shall mean a minimum of (1,732.75) straight time hours or (1,912) straight time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by an unclassified employee while he is replacing a classified employee who is on an authorized leave of absence shall not be included in computing the annual hours worked by the unclassified employee. Counsel argued that the Divisional Court decision regarding ~, ~ and Singh (1993) settled the issue of appointmSnts to the unclassified service of an ongoing or permanent nature. Although these cases involved Group 4 employees, counsel argued that the case was still applicable. In Porter, Parry, and ._$]ngh, the union c~rgued that Section 8 of the Act provided "temporary" appointments to the unclassified service as distinct from appointments to the "permanent" classified service. The argument put forward in those cases was that any regulation that permits appointments to the unclassified service that are essentially permanent is not consistent with the Act. and therefore not valid. The panels in these cases disagreed with the submissions of the union and in the ~o~er case it was held: The question is whether or not, of necessity, the groups identified must reflect an appointment of a temporary character. We do not believe that to be the case. Section 8 itself, while it contemplates an initial appointment for no longer than one year, is completely open-ended in terms of any subsequent appointments. Such appointments can be made for any period or any subsequent appointment. Thus, there is no limit to either the number of appointments or the duration of each appointment. It is impossible to read into Section 8 a requirement that appointments be for jobs that are limited in duration. The Divisional Court upheld this decision and the ~ and ~ decisions. In Lavoi a decision of the Board on the same issues agreeing with the union's argument, the Divisionai Court overturned the decision as wrong. Thus, in summary, the Employer's counsel argues that the powers to appoint pursuant to Section 8 of the Ac_it have been properly exercised regarding these grievors and that the Employer has complied with the Regulation which allows these employees as Group 3 seasonal workers to be appointed from year to year. Counsel for the Union made two alternate arguments. Counsel argued that these grievors are Group 3, and that they have not been appoinIed properly. She relied on Beresford (1429/86) which held that this Board has the power to inquire into the propriety of an appointment. Union counsel argued that there is a clear distinction between the Group 4 and Group 3 empIoyees. She argued that before Group 4 was introduced there was a clear intention that the unclassified service do tempo~'ary work. She argued further that the collective agreement and the definition of seasonal · employee at Article 3.18 that the appointment be for at least eight (8) weeks indicates that appointments are meant to be of a short-term nature. Counsel argued that the work that the grievors performed in this case is work that goes on all year. Where several of the grievors work forty-seven (47) weeks and then have five weeks vacation, somebne else replaces them and does the work for the balance of the year. In the case of Mr. Neff Kelly, counsel po/nfs out that he worked between 1987 and 1992 forty- seven (47) weeks in each year. In summc~ry, she argued that these employees are not seasonal because they are working forty-seven (47) weeks out of the year, every year, .¥:~. and asks us for a declaration that the employees are classified in order to have the jobs posted per the collective agreement. The alternate argument is that because of the forty-seven (47) weeks per year, the grievors should be accorded classified status under Article 3.15.1 of the collective agreement. Counsel argued that Employer's counsel was wrong in her position that this article did not apply to seasonc~l workers. Counsel for the union argued that these grievors have worked the requisite number of hours and, therefore, should be ~:~ considered classified pursuant to Article 3.15.1. Counsel argued in conclusion that we should not dismiss the grievances without hearing evidence as to whether Article 3.15 is applicable. There was clearly no agreement on facts here. Having reviewed the submissions of the parties and the cases submitted to the ~ Board, we are of the view that these grievors are correctly appointed pursuant to Section 8 of the Act and Regulation 881, s.6. In the first argument, the union is essentially making the same argument that is made in Porter, ~ and Sin_in_~h, that the appointments here are not of a temporary "-' nature. However, this is. sue has been decided by the Divisional Court, and we are bound to follow that decision. As long as the initial appointment is no longer than a year, as the Board in P_orte~: held, section 8 "is completely open-ended in terms of any subsequent appointments." Although this Board has the power to inquire into the propriety of an appointment, there is no evidence to support a finding that the appointments did not meet the technical requirements of the Act and the Regulation. However, the Board feels that it is unabie to make the decision as to whether or not A~rticle 3.15 of the collective agreement is applicable since there was no evidence provided nor agreement as to the facts on how long each particular grievor has worked and in what capacity after the initial appointments, and if there was a determination of a continuing need by the Employer. Therefore the parties should contact the Registrar regarding further dates, in the event that they wish to pursue the matter. Dated at Toronto this'.~3 day of M~, ,1997. T. Browes-Budgen, Member