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HomeMy WebLinkAbout1992-1869.Ballak.93-11-02 , ~f' ~; t> 'i1. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326- 1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G'1Z8 FACS/MILE'TEUicOPIE (416) 326-1396 1869(92 IN THE MATTER OF AN ARBITRATION ) Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ;- OPSEU (Ballak) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) I Employer BEFORE: P Knopf Vice-Chairperson H. O'Regan Member D Montrose Member FOR THE G Leeb UNION Grievance Officer Ontario Public Service Employees Union FOR THE M. Failes EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING October 7, 1993 ) r , ~ - - - .. -- - --- - - ---------- - - --~_.- (~, _1 - "\ This case involves a grievance over a job competition The issue is unusual and important. The grievor is a "Group 3 Employee" under the terms of the Collective Agreement The job compe~ition was open to all classified and unclassified "employees" of the Ministry The parties agree th~t during the course of the seasonal contract, the grievor would be entitled to apply for the vacancy However, the vacancy was posted at a time between seasonal contracts The Employer takes the position that during this "hiatus" the grievor is an employee and is , therefore not entitled to make application for jobs such as these. The Union asserts that the grievor is entitled to make such an application under the collective agreement The facts are not in dispute The grievor has held positions with this Ministry for two consecutive seasons At the end of his second season, he had completed the probationary period as a. seasonal It is also of interest to , note that he had worked seasons past for the Ministry. Under the terms of this collective agreement, employees can elect to receive benefit coverage at their own expense at the end of each season. The grievor made such elections. He also elected to contribute to the pension plan until it became clear to him that he would not be rehirerd for a consecutive season. ) I The issue in this case is volhether a person \'lho is a seasonal employee and whose seasonal contract has exPired is e nti tIed to apply for a job posted under Article 4 of the collective agreement The competition in this case was (restricted to current employees Therefore, the question that must be decided is whether the grievor remains an employee during the periods between contracts. The relevant provisions of the collective agreement are as follows --~~ .~- r t'~H- ., " or. .{~j.i' ) - 2 - SEASONAL EMPLOYEES 3.17 Sections 3.18 to 3 37 apply only to seasonal employees DEFINITION 3.18 A seasonal employee is an employee appointed for a period of at l~ast eight ( 8 ) consecutive weeks to an annually recurring fu~l-time position in the unclassified service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36-1/4) or forty ('40) hours per week, as applicable . SENIORITY . , I 3.20 2(a) A seasonal employee will lose his seniority when ( i) he voluntarily terminates his employment, ( i i ) he is dismissed (unless such dismiss-al is reversed through the grievance procedure), (i1i) he is absent without leave in excess of ten (10) consecutive working days (iv) he is unavailable for or declines an offer for reemployment as provided in Section 3.21 (Job Securi ty) , or (v) he ceases to be in the employ of the ministry for a period of more than twelve ( 12) months . . JOB SECURITY 3.21 1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority c~ -'<: '" 1l,"; - 3 - . . SEASONAL EMPLOYEE BENEFITS - GENERAL 3.24.3 All coverage under the Basic Life Insurance plan, the Supplementary Health and Hospital plan (including Vision Care and Hearing Aid benefits) and the Dental Plan will cease at the end of the month in which the contract of employment terminates, except that an employee may continue the coverage at his own expense during the periods between seasonal employment by arranging to pay the full premiums at least one (1) week in advance of the first of the month in which the coverage is to take effect through his ministry personnel or payroll branch . . . . ATTENDANCE CREDITS AND SICK LEAVE 3.32 l(b) Effective June 15, 1990, an employee shall accumulate unused attendance credits earned from period to period of seasonal employment within the same ministry OTHER APPLICABLE ARTICLES 3.37 The following A~ticles shall also apply to ~easonal employees Articles A, 1, 4 1, 4.4, 6, 9, 11, 12, 15, 16, 17, 18.5, 21, 22, 23, 27, 29, 32, 33, 34, 35, 36, and 86. ARTICLE 4 - POSTING AND FILLING OF VACANCIES FOR NEW POSITIONS 4 1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the establishe9 closing date when advertised service-wide All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. /- 6 ( '.,,': ."\ ~ - 4 - . . . RECALL 24 16.1 Effedtive January 1, 1992, a person who, prior to release has completed at least nine ( 9 ) months of continuous service, may be reappointed to his forme r position if the position is re-established within his ministry within eighteen ( 18) months of his , release and if there is no eligible surplus employee who is qualified to perform the work 24.16 2 Effective J~nuary 1, 1992, where a person who, prior to release, had completed at least nine ( 9 ) months of continuous service, has been released and a position becomes vacant in his former ministry within a forty (40) kilometer radius of his former headquarters within eighteen (18) months after his release, notice of the vacancy shall be forwarded to the person at least fourteen (14) days prior to the closing date of the competition and he shall be appointed to the vacancy if ( a ) he applies therefor within the fourteen ( 14 ) days, and (b) he is qualified to perform the required duties, and ( c) no other person who is qualified to perform the required duties and who has a greater length of continuous service applies for the vacancy pursuant to this sub-section. The relevant provisions of the Crown Employees Collective Bargaining Act are as follows 1 ---(1) In this Act, ( f ) "employee" means a Crown employee as defined in the Public Service Act - r- " -"-- I '; ., - 5 - . . 7. Upon being graQted representation rights, the employee organization is authorized to bargain with the employer on terms and conditions of employment, except as to matters that are exclusively the function of the employer under subsection 18(1), and, wit~out limiting th~ generality ,of the foregoing, including rates of remuneration, hours of work, overtime and other premium allowance for work performed, the mileage rate payable to an employee fo~ miles travelled ') when he is required to use his own automobile on the employer's business, benefits pertaining to ! time not worked by employees including paid holidays, paid vacations, group life insurance, health in su-rance and long-term income protection insurance, promotions, demotions, transfers, lay-offs or reappointments of employees, the procedures applicable to the processing of grievances, the classification and job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office or political activities or training and development. [emphasis added] , The relevant provisions of the Public Service Act are as follows 1- In this Act, . . (g) "public servant" means a person appointed under this Act to the service of the Crown by the Lieuten~nt Governor in Council, by the Commission or by a minister, and "public service" has a corresponding meaning; 9. A person who is appointed to a position in the public service for a specified period ceases to be a public servant at the expiration of that period ( " - - - (: (- \.;:;, - 6 - Argument of the Parties ~ I The Union argues that Articles 3 17 to 3 37 set up a s'cheme of rights for seasonal employees that ought to be read so that they are considered employees even once the seasonal contract has expired It was pointed out that the Collective Agreement gives seasonal employees recail rights to obtain jobs without having to apply for them and that the ir seniority can only be lost in the specified manner set out in Article 3 20 2(a) It was argued that these provi,sions imply that seasonal employees are considered to be employees for the 12 months following the expiry of each seasonal contract. This argument i$ also reinforced, in the Qnion's opinion, by the fact that seasonals are allowed to maintain benefits and accumulate sick credits in between contracts. Further, it was argued that the Employer's actions have essentially given the grievor a relationship with the Ministry through the documentation which the Ministry maintains to ensure that benefits are made available to the grievor in the months between seasonal contracts It was argued that the grievor would not be able to maintain his benefit coverage provided by the Ministry and not still be an "employee" Thus, it was argued that the language of the collective agreement and "common sense" dictate that the -' grievor is an employee for up to 12 months after the expiry of the seasonal contract Further, the Union relied heavily upon the case of Copeman and Ministry of Health, GSB File 62/89, decision of Gorsky dated October 31, 1989 The Union argued that this decision is a precedent directly in favour of the Union and ought to be followed The Union also made reference to the cases of Union Grievance and Management Board of Cabinet, GSB File 915/88, unreported decision of Wilson dated July 4, 1990 and Ministry of Natural Resources v Ministry of Labour, decision of an Employment Standards \ Act Referee, Dana Randall, dated March 5, 1993 and Norland --- . -- -- ~ -- -- f C;~. G,. ~. (. ,.~ ~. ;. '('~ ".. o. .I~~~" - 7 - and Ministry of Correctional Services, GSB File 3160/92, decision of Gorsky dated September 21, 1993 Counsel for the Employer stressed that the case turns on whether or not the grievor was an employee at all relevant times It was argued that the grievor; as a seasonal, was at all relevant times a public servant who is subject to Section 9 of the Public Service Act and who ought to be considered as no longer a public servant and hence no longer an employee ~t the expiry of each seasonal contract Further, it was argued that the collective agreement is I i I I consistent with the Public Service Act in that it! sets oud a distinction between the "re-employmentD of seasonals as l I / opposed to the "reappointment" of Crown employees or the classified staff. C<;>unsel for the Employer drew the " : distinction between the operation of Article 3 21 of the I i collective agreement and Article 24 which deals with i , ! reappointment and re-employment of the two classification~ of workers This was said to indicate that the parties I j understood in the collective agreement that once a seasonal contract expired, the person no longer retained the i statu~ of an "employee" during the hiatus between contracts. It was I stressed that if the parties had meant to continue an ! employee relationship with seasonals and a Ministry durin~ th~ hiatus between contracts, this could have been specified ~ as the parties have specified the continuing entitlement to specifi'c items such as benefits and attendance credits j The Employer referred to the following cases in support of its position Haley Industries Ltd. (1970), 21 L A.C i (Palmer) 346 and Erhardt and Niagara Park~ Commissionj GSB File i 576/90, decision of Dissanayake dated January 4, 1991 I. I f i \ I - ~.. f~~ .f"".~-)f:'''l- '. :",.". ~~:' ~ - 8 - ( The Decision The parties aglae that seasonal employees have the \ right to apply for posted vacancies in the classified service during the term of their seasonal contracts. The question in this case is whether such a right exists during a hiatus I between seasonal contracts This question has not been addressed squarely by the GSB to date. The caJes cited to us by both parties have not dealt with the point ditettly The Erhardt decision is of no assistance because it deals with different parties and a different collective agreement. The Union grievance, supra, dealt with seasonAls' entitlement to maintain sick I credits during layoff. That issue has now been resolved by I the parties in their new collective agreement The Norland decision, supra, dealt with an unclassified candidate's right to bid for a vacancy cre~ted by making her work into a I 1 fQll-time classified posrtion. The Ministry of Natural Resources and Ministry of Labour case deals with the interpretation of a diff~rent statute and specifically disclaims any applicatioh to the rights or the obligations of I employers under the Public Service Act or the Crown Employees Collective Bargainin'g Ach. Finally, the Haley decision, supra, is simply an illuktration of the private sector's t "1 ' I , response 0 Slm1 ar sltuat10ns The 6nly case bited to us that warrants any further , . h f I h . attention 1S tat 0 Copeman. In that case t e gr1evor was a seasonal employee for fo~r seasons. At the end of his last season he was notified t~at he would not be "recalled" because of disciplinary boncerns His grievance was filed outside the time provisions in the collective agreement for filing. The employer took the position that the grievor ceased to have any rights once his seasonal contract ended G r L_ ; - 9 - except those that could be specifically found in the collective agreement Hence, the employer argued that the grievor could not avail himself of any attempt to go behind the time limits in the collective agreement for filing a - grievance over the discharge. The employer relied heavily on Section 9 of the Public Service Act The situation was analyzed as follows at pages 4 to 6 of the decision If the argument submitted by counsel for the employer is developed to its logical conclusion, it must mean that after the conclusion of the season of employment (August 28, 1988, in this case) the grievor was not only not an employee for the purposes of the CECBA, but was also not an employee under the collective agreement, as the recognition article (1) only applies to persons who are employees under the provisions of the CECBA ( s. l(l)(f)). This interpretation would have the effect of making articles in the collective agreement that usually operate after the end of the seasonal employment precatory and incapable of being enforced by a person in the position of the grievor once the season employment had ended for the year Seasonal employees, unlike many other kinds of _unclassified service employees, are defined as lIemployeesll under the CECBA. Having achieved ~mployment status for the purposes of the CECBA, \ the significance and duration of that status is ( expanded upon in other sections of the Act Section 7 of the CECBA deals with permitted areas of bargaining which include the right to bargain over "reappointments of employeesllj The section does not refer to the reappointment of persons . The parties did, in fact negotiate and come to agreement wtth respect to seasonal employees, in art 3 20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority Thus, a seasonal employee remains an employee, under the CECBA for the purposes of reappointment even after the end of the period of his seasonal (' employment -'-- ~ -~ r- .- -- I c , - 10 - I This conclusion is reinforced by the provisions of art 3.19 2(d) of the collective agreement which provides for the loss of seniority by seasonal employees in certain named circumstances, including where the seasonal employee is " unavailable . . for or declines an offer for re-employment as provided in Section 3 20 (Job Securi ty) . . " Art 3.19 2(e) provides that seniority will be lost where the seasonal employee "ceases to be in the employ of the ministry for a period of more than twelve (12) months " The use of the term "employee", in the context of the CECBA treats a seasonal employee as an employee for the purposes of the Act even after the end of the seasonal period of work. The submission made on behalf of the employer was that employment status under the CECBA ended after the completion of the seasonal period of employment. This would also mean that the employee's seniority was also lost. Such an interpretation would fly in the face of the clear language of the CECBA Under the article negotiated in accordance with the provisions of s 7 of the CECBA, a seasonal employee loses seniority (art. 3 19.2(d) and ( e ) ) in certain circumstances This must apply to situations occurring after the end of the period of seasonal employment. In the Case of the grievor, we are not dealing ~ith a situation cont~mplated by s. 9 of the PSA, where the language refer s to the appointment of a person to the public service Here we are, by acknowledgement, ~ealing with an employee who has been reappointed pursuant to a provision in the collective agreement the negotiation of which is permitted in the CECBA In the cases cited to us, where it was indicataed that s. 9 of the PSA applied, the Board was dealing with facts where it was not possible to view the grievors as being entitled to the status of an employee who has been reappointed rather than appointed for a specified period. In the circumstances, the grievor having failed to meet the mandatory time limits for filing a grievance (art 27.13), the grievance would be deemed to have been withdra~n. Because I have found the grievor to be an employee within the meaning of the CECBA, and, therefore, able to avail himself of the right of grievance provided for under s 18(2)(c) of that Act, his grievance may be processed in accordance with the grievance procedure provided for in the collective agreement, " -------- (,- ~~ .. " - 11 - notwithstanding the failure to meet the mandatory time limits contained in the collective agreement I With the greatest of respect to the decision in the Copeman case, we are forced to conclude that that decision should be confined in its application to the factual situation of the seasonal employee seeking to avail himself of the right to grieve a d ismis sal under section 13 2(c) of the Crown i Employees Collective Bargaining Act beyond the time limits for filing grievances under the collective agr~ement The / Copeman decision language dealing with the broad proposition of rights of seasonal employees "for the purposes of the Act even after the end of the seasonal period of ,"ork" should be read as obiter dicta and therefore not determinative of the dispute before us in this case The case at hand deals specifically with the rights of the seasonal employees to post for a vacancy after the end of the seasonal period of work \ve shall deal \'1i th that issue directly We must ~tart with the Public Service Act As a seasonal employee, the grievor was appointed to a position in the Public Service for a specific period of time. Section 9 of the Act provides that a persoh appointed to a position in the Public Service for a specified period ceases to be a . public servant at the en~ of that period. Once a person ceases to be a public servant it must necessarily follow that he ceases to be an employee. I Under the Crown Employees Collective Bargaining Act an employee is defined in Section ~(l)(f) as a Crown employee as defined in the Public Service Act. A public servant is defined in section l(l)(m) as having a meaning corresponding to that in the Public Service Act. Under the Public Service Act a Crown employee is d ef ined in section l( e) as a person employed in the service of the Crown' All persons employed by the Crown are Crown ------------ C~.~r r-- ... -, -- ,:;.:.... - 12 - employees A public servant is someone appointed under the Public Service Act. Thus, while all public servants are Crown employees, not ~ll Crown employees are 8ublic servants. It must therefore follow that during the term of the seasonal contract, a person is a public servant and thus a Crown employee. However, section 9 of the Public Service Act operates so that at thl expiration of the contract such a , person ceases to be a public servant and thus ceases to be a Crown employee This would seem to end the matter, except the Union has strongly and ably argued that the parties exercised their rights under the Crown Employees Collective Bargaining Act to bargain regarding the "reappointment of employeesW and have, under the collective agreement, contracted to give the seasonal employees the rights to post for jobs even after their contracts end It is said that this recognizes or confers employment status on seasonals in the time between I contracts. However, an analysis of the collective agreement does not support this argument. Instead, the collective I agreement has been drafted to comply with the concept that I ( there are distinctions between the rights of seasonals once their contracts expire and the rights of Crown employees First of all, the rights of seasonal employees are designated in Articles 3.11 to 3.37. As ably described in C\ \ the Union grievance, supra, at page 9 , Seasonal employees have a different employment relationship from that of classified staff Article 3 has created a special code for them with a specific type of job security and benefits entitlement. It is virtually a collective agreement within a collective agreement. This separate collection of rights gives seasonal employees various speqific rights to job security, seniority, benefits coverage and attendance credits accumulation Throughout c-- t:"'c~" \':.,7;..;' - 13 - I this section of the collective agreement, the parties have specifically designated seasonal rights that should or can continue beyond the term of the seasonal contract. For example; 1 People could continue benefits coverage afte~ "the contract of employment terminates" under Article 3 24.3 2. Attendanqe credits can be accumulated under the collective agreement by virtue of article 3.32 l(c) 3. Job security provisions exist to give seasonals the righ t to be "offered employment in their former positions" following the season of their contract on the basis of seniority under Article 3.21-1- Therefore, it can be seen that the collective agreement has been negotiated to give seasonal employees rights that go beyond the time strictures of their seasonal contracts. This \ indicates that where the par.ties have intended seasonal employees to have rights during the hiatus between cOntracts, the parties have specifically turned their minds to that issue and drafted language to ensure those rights. There is language in the collective agreement that specifies that , no seasonal employees can bid for a vacancy "during the period between its seasonal employment" which is the language used to create the kinds of rights which are cited above The only way the Union can succeed in this case is to convince us that the collective agreement as a whole must be read so as seasonal employees retain the statu~ of employees between contracts under this collective agreement. ( It may be true that section 7 of the CECBA would seem to give "\ - - c~ ,. (7-: ., \;.,;/ I - 14 - the parties the right to negotiate such a provision, so long as they do not offend section 9 of the Public Service Act~ One can only speculate on how that may be done But the relevant consideration is that the language of this collective agreement is consistent with section 9 of the Public Service Act in that it specifically differentiates between the employment status and rights of seasonal employees vis-a-vis classified staff, and indeed other unclassified staff. Article 3 20.2(a) specifies that a seasonal employee looses seniority when he declines an offer for "re-employment" The term "re-employment" is distinct from the term "recall" which is used in Article 24.16 which speaks of "release" and "reappointment" to positions for classified staf f. The classified staff's rights to recall and their concepts of release and reappointment are in sharp - contrast to the seasonal employees' rights to be "of fered employment in their former positions" under Article 3.21.1 The former clearly implies an ongoing employment connection that is being reaffirmed upon reappointment. The latter implies only the consecutive recreation of an employment relationship. This is confirmed by Article 3.20.2(a) which also speaks of a loss of seniority if a person "ceases to be in the employ of the Ministry for a period of greater than 12 months " This again leads to the conclusion that the parties anticipated that a person "ceases to be an employee" of the Ministry once the seasonal contract ends, but his/her J seniority remains alive for only 12 months from that date. It is also clear that the parties have said that the person "ceases to be in the employ of the Ministry" within that l2-month protection period. Taking all these factors/into consideration, the inescapable conclusion is that the Public Service Act has dictated that a person ceases to be a public servant at( the / c.- v.,.. I . (' 'i.,\.~ ~:.,~... - 15 - end of the time of their specified period in their contract Therefore, a seasonal employee, hired for a season, ceases to be a public servant at the end of that season. If the parties could have defined a provision so that a person in that circumstance could remain as an employee under the collective agreement, they have not done so for purposes of a \ person's right to bid on job vacancies under Article 4 of the collective agreement While the parties have negotiated several specific rights for seasonal employees to continue d ur i ng the periods between seasonal employment ( i e benefit coverage, job, securi ty to be of fered to be rehired and attendance credits), the parties have not negotiated to give seasonals the right to bid on vacancies between seasons Further, the language of the collective agreement is consistent with section 9 of the Public Service Act in that it contempla.tes that seasonals cease to be in the employ of a Ministry between contracts (Article 3 20 2(a) ) and are offered employment (Article 3.21 1 ) consecutively as opposed to the relationship between the Ministry and civil servants who are reappointed to positions after "release". Thus, we must conclude that the parties have chosen to negotiate their collectivel agreement to be consistent with the Public Service Act and to recognize that the employment status of a seasonal employee ceases upon the expiry of the seasonal contract But the fact that the parties have also negotiated that such seasonals will re ta i n limited rights between contracts does not confer employment status on these people during those hiatus periods It simply means that only those\specified ~ rights can be asserted and enforced under this collective ) -.- __ _'S.~ .' ~ f I A"~ ~ ~ ,-..... \. . \:."--'..... "''' - 16 - agreement For all these reasons, the grievance is dismissed. DATED at Toronto, Ontario, this 2nd day of November, 1993. ) 1/3) (\ '/ G\ ! ~ (i - 0 / ' bL. ~ . D.ve>-, CJ--y- H. OlRegan(j Member v d " ~ ~ . D. Ho rose - Member l )