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HomeMy WebLinkAbout1992-2476.Barker et al.97-01-08 {Of-' --~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSO IZ8 TELEPHONE ITtU;PHONE (4 16) 326-'388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M50 lZ8 FACSIMILE ITELECOPIE (416) 326-1396 GSB # 2476/92 OPSEU # 92G572-600 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Barker et al) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE H. Finley Vice-Chairperson J.C Laniel Member F Collict Member FOR THE N Coleman GR:IEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Zarudny EMPLOYER Law Officer Crown Law Office civil Ministry of the Attoney General HEAR:ING September 26, 1995 January 22, 1996 February 1, 8, 1996 .. .~ 2476/92 ETC. DECISION Gnevances were filed m thIS matter on June 28, 1992, July 29, 1992, and July 2, 1992, by 29 Courtroom ServIces Officers. They are unclassIfied employees of the Ministry of the Attorney General. One gnevance has smce been withdrawn. The Gnevors ask to be "properly - compensated at proper wages" and 3 Issues have emerged as possibly determmatIve of that: . the identificatIOn of the equivalent classificatIOn to establish the Gnevors' appropnate wage rate, . the basis for overtime payment, and . the Gnevors' placement and movement on the wage gnd and the tIm10g and retroactivIty associated with that. These grievances came on for hearing initially on June 2, 1993, before a Panel of the Grievance Settlement Board chaired by Vice-chaIr W Kaplan and includ10g Members J-C Laniel and M. O'Toole. That Panel heard and ruled on 2 initial preliminary objections brought by the Employer The first was that the grievances were classification grievances and that as unclassIfied employees, the Court Constables had no right to file classification grievances, the second was that the grievances were premature and, as they were filed prior to the occurrence of the complained-of matters, the Board should decline Jurisdiction. The Board ruled 10 Its declSlon of July 12, 1993 that .these grievances are clearly arbitrable, [as] [t]hese grievors are not challenging their classification, What they are doing is seeking the review of the compensation, which is determined by management selecting an "equivalent" classification. .in no way can they be described as classification grievances of the kind that frequently come before this Board. The grievors are entitled, under Article 3.3 I of the Collective Agreement, to be paid the wage rate assigned to an equivalent classification, and that entitlement carries with it a corresponding entitlement to grieve the comparator classification assigned to them for the determination of wages where the allegation is made that it is not equivalent The matter of equivalence is an issue for the Board to decide. Obviously, the grievors have every right to file grievances pertaining to the overtime provision of the Collective Agreement and that [t]he grievances in this case are not premature because they were filed after the employer 1 ,.,r' ..1 announced the two changes and it is these changes that are the matter in dispute. Pnor to the next hearmg date of March 30, 1995, the eqUivalent classIficatIOn was settled and agreed to be "Usher and Messenger", following a pay eqmty adjustment of the Usher and Messenger wage rate whIch elevated It above the OAG 2 wage rate On this day of the hearing, the overhme Issue was also resolved. It was then decIded to place the remaimng Issue before another Panel This Panel, consistmg ofH. Finley, Vice~chaIr and Members F Collict and J~C Lamel, convened Imhally on September 26, 1995 The declSlon on the first two prelimmary matters notes that "there is very little dIsagreement between the parties about the factual background to this case" and sets out that background as follows. The grievors used to be known as Court Constables and most of them are employed at 361 University Avenue, 145 Queen S~eet West and several other locations in Toronto, The grievors are all unclassified employees working under limited-term contracts of employment. Typically, these contracts run from April 1 st of one year to March 31 st of the next. Until August 1992, the grievors were paid at the OAG 2 rate. It is useful to set out Article 3.3 1 of the Collective Agreement It provides. The rate of the equivalent civil service classification shall apply If there is no equivalent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations. At one point, and for a period of approximately six years, the parties were agreed that the OAG 2 rate was the "equivalent civil service classification" for computing thegrievors' pay In February 1992, the grievors entered into new contracts of employment again providing for payment at the OAG 2 rate. As was customary, these contracts were scheduled to begin on April 1st and continue until the end of the Ministry's fiscal year However, in early March 1992, after these contracts were signed, the employer posted a notice indicating that effective August 1, 1992, the Court Constables would no longer be paid at the OAG 2 rate, but would, henceforth, be paid at the Usher and Messenger classification rate. The stated reason for this change was that the passage of Bill 187 and its implementation on January 1, 1990 had changed the grievors' duties and responsibilities. The principal change made by this legislation was that the grievors, and some 500 other Court Constables located throughout the Province were no longer responsible for court security After reviewing the grievors' duties and responsibilities, the employer determined that the class allocation that most correctly reflected their duties and responsibilities for the determination of the proper compensation, was that of Usher and Messenger One important effect of this change was to reduce the hourly wage paid to the grievors by approximately one dollar New contracts were subsequently signed by all of the grievors, and these new contracts clearly indicate the change in the comparator classification and attendant reduction in wages. 2 " Another change was subsequently introduced with respect to overtime Prior to July I, 1992, it was the employer's practice to pay the grievors overtime on any day in which they worked more than 7 1/4 hours, A change to that practice was announced. Instead of paying the grievors overtime every day in which they worked more than 7 114 hours, effective July 1, 1992 the employer advised the grievors that it would only pay overtime if they worked "in excess of thirty- six and one-quarter (36 1/4) or forty (40) hours per week where employees do not have regularly scheduled work days." In brief, the employer took the position that because the grievors did not have regularly scheduled work days, their overtime entitlement was governed by Article 3 4 (d) of the Collective Agreement, while the grievors took the position that, as past practice indicated, their overtime entitlement was governed by Article 3 4 (a) of the Collective Agreement. Article 3 4 (a) provides that overtime will be paid for work "in excess of seven and one-quarter (7 1/4) or eight (8) hours per day, as applicable where employees work a regular thirty-six and one-quarter (36 1/4) or forty (40) hour work week, as applicable." The grievances now before the Board were filed after the announcement respecting the change in overtime policy was announced, which followed soon after the announcement of the change in the classification used to determine wage rates. Now that the overtime and the equivalency Issues have been settled, the remaIning Issue to be consIdered by the new Panel IS placement and movement on the wage grid for years of service from each grievor's start date. The issue IS two-fold. . whether or not the grievors as unclassified employees, once placed on the grid, were entitled to move on the wage grid for every year of service commencing with their individual start dates, . if they are entitled to move, then what retroactiVIty are they entItled to in view of the dates of the grievances, years of service, and other relevant factors. Mr Coleman acknowledged that the Social Contract (Bill 48) would have an impact on the Gnevors' movement on the gnd as of June 14, 1993 The Usher and Messenger ClassificatIOn has a S-level wage gnd and a claSSIfied employee In that claSSIfication moves up one level each year, unless hIS or her performance is unsatIsfactory Pnor to the agreement to the Usher and Messenger ClaSSIficatIOn equivalency, the Gnevors were always paId at the first or the lowest level and dId not move on the wage gnd. A 3 1 memorandum dated October 22, 1992, from Gregory GledhIll, Staff RelatIOns Officer, to D G Henderson, RegIOnal DIrector, Central West RegIOn, and copIed to "all other RegIOnal DIrectors" clarified the Employer's mtended practice as of August 7, 1992, when It had been mdICated verbally at a meetmg WIth the Umon that: [t)he difference in hourly rate at the minimum ofthe salary range is $1 16 between the Usher and Messenger and OAG 2, and $071 between the Senior Usher and Messenger and OAG 4 We indicated that provided these employees met the minimum requirement of 6 months service for the Usher and Messenger level, and 12 months service for the Senior Usher and Messenger level they would be placed at the second step of the salary range. This would reduce the negative impact to $0.92 and $0 44 respectively Subject to acceptable performance, employees will continue to progress through the salary ranges in accordance with pay administration guidelines. At the outset of the September 26, 1995 hearing day the Employer's Counsel, John Zarudny, submitted that movement on the wage grid was not an arbItrable issue and alleged this was an Introduction of a new aspect to the grievances on June 2, 1993 that of movement on the wage grid which is not specifically referred to In the wordIng of the grievance. In other words, the Union had amended the grievances. Nick Coleman, Counsel for the Union, argued that movement on the wage grid was encompassed in the wording of the grievances in which the Gnevors asked to be "properly compensated at proper wages" He submitted that there were several Grievance Settlement Board cases which had recognized the issue of movement on the wage gnd for unclassified employees as arbitrable and lIsted the following OPSEU (Williams, Barber et al) and The Crown in Right of Ontario (Ministry of Correctional Services) (Samuels), February 5, 1991, GSB 1448/90 OPSEU (Kidd) and The Crown in Right of Ontario (Ministry of Revenue), (VerIty), December 12, 1991, GSB 2501190 OPSEU (Watts) and The Crown in Right of Ontario (Ministry of Community & Social Services), (Stewart), May 21, 1991, GSB 1340/90 OPSEU (Hammond, Maier et al) and The Crown in Right of Ontario (Ministry of Correctional Services), (Fmley), March 3, 1994, GSB 2426/90 Mr Zarudny went on to ralse a further prelimmary objectIOn, respectmg the Impact of the Social Contract Act, 1993 on the abllIty of the Grievance Settlement Board to entertaIn the Issue 4 , He submitted, with respect to the Social-Contract grievance, that there IS a very "clear and unambiguous statement by the Legislature that no arbitratIOn decisIOn after June 14, 1993 (and we are clearly after that, he pomted out), may award any mcrease in compensatIOn to any of the Gnevors" He grounded his argument m sectIOn 48 (1) No increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993 (2) Despite subsection (I), if one or more days of hearings have been held before June 14, 1993 in an arbitration, but the award or decision is not made until on or after that date, any increase in compensation awarded to take effect before June 14, 1993 is valid, but any increase to take effect on or after that date is suspended. (3) Despite subsection (I), an arbitration award or decision may increase the annual earnings of employees to a maximum of $30,000 (4) Despite subsection (1), an arbitration award or decision may increase compensation to an employee to the extent required to redress any improper denial of a promotion or improper classification. (5) Subsection (I) does not apply to an arbitration award or decision that settles a first collective agreement applicable to employees represented by a bargaining agent that, (a) was certified or recognized as the employees' bargaining agent before June 14, 1993, or (b) applied for certification as the employees' bargaining agent before June 14, 1993 (6) For greater certainty, "Compensation" in this section includes, (a) merit increases; (b) cost-of-living increase or other similar movement of or through ranges, and (c) increases resulting from any movements on any pay scale or other grid system. Mr Coleman, stated that It was the Umon's posItion that there was nothmg m the Social 5 - Contract Act, 1993, whIch lImIts the Board's junsdIctIon to make an award In this case and that SectIOn 48, In partIcular, does not lImIt the Board's JurisdIctIOn to make such an award SInce what IS requested is not an Increase m compensatIOn wIthm the meanIng of SectIon 48 (I) He submItted that even if Mr Zarudny IS nght on SectIon 48 (I) , he IS not on Section 48 (2) since the first day ofthe hearIng was June 2, 1993, which brIngs the matter WIthIn SectIOn 48 (2) that gIves the Board the authority to make an award concerning an increase In compensatIon. He stated that the Umon IS only seeking movement on the grid prior to June 14, 1993, and that It accepts that under the Social Contract Act, 1993, movement on the wage grId after that date would not take place. Mr Zarudny replied that Section 48 (2), in partIcular the phrase "days of hearing" must be interpreted to mean the hearing on the merits, "not something taking up prelIminary matters" He submItted that the prior panel was not seized on the merits and this case did not have any hearmg days prior to June 14, 1993, and it is not caught by this prOVIsion. Even if the Union's argument was correct, and Section 48 (2) is applIcable, it would only apply to the gnevance of I Mr Barker, because at that tIme there was no agreement that the grievances would be treated the same way before thIS Board. Further, Mr Zarudny submitted in the alternatIve, there can be no I remedy after June 14, 1993, and the grievance which is dated June 29, 1992, is future OrIented and makes no claim for anything in the past. Mr Zarudny referred the Panel to the Social Contract Act, 1993, SectIOn 15 2 The provisions of a local agreement prevail over the provisions of a collective agreement. and SectIOn 40 .2 The provisions of a local agreement entered into under section 37 prevail over the provisions ofa collective agreement SectIOn 37 reads as follows (I) Despite subsection 13 (I), one or more bargaining agents may, after August 1, 1993 and not later than March 1, 1994, 6 -- '~; enter into a local agreement with an employer (2) A local agreement under this section shall apply to the period beginning April I, ] 994 and ending with March 31, ]996. (3) Subsection (I) does not apply to a bargaining agent and employer who entered into a local agreement under section 13 (4) Despite subsection (I), a local agreement may be entered into under this section not later than March 10, 1994 if a sectoral framework is designated under section 36 that relates to the sector of the employer and the Minister directs that this subsection applies to the sector Mr Zarudny then went to the relevant Sectoral Framework Agreement, in particular Sections 7 5 and76 7.5 No merit increase, movement in salary step, progress through the range or salary grid shall be granted for three years from June 14, 1993 There will be no service catch up for merit increase or grid movement purposes after the expiry of the social contract. 7.6 There will be no wage or salary increases before April 1, 1996 for any employee. However this will not prevent increases in compensation as a result ofa promotion or acting promotion of an employee to a different position. He submItted that Section 7.5 would capture this grievance failing any other reason on the ments and smce the Issue does not mvolve the promotIOn ofMr Barker, Section 76 would apply Mr Coleman addressed the second issue, that of the alleged amendment of the grievances and submItted that the wordmg used "not being properly compensated" states the grievance in broad terms, as does the remedy sought, "to be "properly compensated at proper wages" He made the pomt that thIS IS not a questIOn of changmg the nature or the grounds of the gnevances. Dunng the gnevance procedure, he mamtained, even without regard to what was dIscussed, the Employer was put on notice that the whole issue of appropnate compensation was on the table. As well, he stated, that there could be absolutely no doubt as of March 18, 1992, the date of the Williams/Barber JudICial reVIew deciSIOn, that the Employer had not been paymg unclassified 7 I I staff proper wage rates. This case, he explained, stands for the propOSItion that unclassIfied staff are entitled to move up the wage grid as classified staff do, and that is part of being properly paId. Mr Coleman also referred the Panel to the earlter prelImmary decision by the Kaplan Panel dated July, 1993 One other matter should be noted. It was the union's contention in this case that the grievors were being kept at the lowest level of the comparator classification. Whatever the appropriate comparator classification was ultimately detennined by the Board to be, the union took the position that the Board should, if it took jurisdiction over this case, also direct that the grievors be assigned to the proper grid of the wage rate attached to that classification reflecting their seniority in the position. [At page 8] and It is not necessary at this time to decide whether the grievors are entitled to be paid at the different wage grids within the equivalent comparator classification. That matter can be addressed along with the merits of this case. A fmal observation is in order While it is undoubtedly correct that jurisdictional matters can be raised at any time, where one party is aware of objections of this kind, surely there is some obligation to bring those objections to the other side's attention where failure to do so will seriously prejudice the other party If, for example, we had upheld the employer's objection in this case, the resulting delay caused by requiring the grievors to now refile their grievances would, if their grievances proved ultimately successful, deny them their entitlement for an extended period during which the employer was well aware of the issue in dispute, That would be quite unfair Mr Coleman went on to say that if Mr Zarudny WIshed to raise this objectIOn, he could have done so at the hearing in June, 1993, and it is now too late to do so Mr Zarudny stated that he was "outraged on June 2, 1993" when he thought he was dealmg WIth "Improper claSSIficatIOn" and "overtime" and heard for the first time, on that date, about movement on the wage grid and Article 3.3 1 He went on to say that he had raised an objection which was noted on the record and at that time reserved the nght to raise the questIOn of the substantive change in the grievances. The Panel, at that time, he stated, noted hIS reservatIOn. Mr Zarudny called Ms. Susonna Rodella who came to the MInIstry of the Attorney General as 8 -- an Employee RelatIOns Consultant in December 1992. When referrmg her to Mr Coleman's letter to hIm dated May 27, 1993, he asked her about her understandmg of what the grievance involved. The letter reads as follows Further to your correspondence dated May 27 and 28, 1993, I am writing to confirm that the above-noted grievances involve claims for compensation of the equivalent civil service classification and overtime for authorized hours of work performed in excess of 7.25 hours, per day As you know, the grievors were paid at the rate of Office Administration 2 until August 1, 1992. The OA 2 rate was confirmed in a position specification for the grievors effective January 1, 1990 and the duties and responsibilities ofthe grievors have not changed since that date. The grievors were always paid overtime for any hours worked in excess of 7.25 hours per day until August, 1992. At that time, the Ministry advised the grievors that they would be pai~ only for hours worked in excess of 36.25 hours per week. . We take the position that the OA2 rate and overtime for hours in excess of 7.25 hours per day should have been paid after August 1, 1992. I look forward to receiving the documents I requested in my correspondence dated May 27, 1993 Please ensure that the documentation includes the position specification or the grievors' position effective January 1, 1990 I propose to present the evidence of Cliff Barker at the hearing on June 2, 1993 I understand that all contracts of employment were unilaterally revised by the Ministry effective August I, 1992. All grievors, including Mr Barker, have, on occasions, worked in excess of 7.25 hours per week [sic] and not been paid any overtime for those additional hours. In the circumstances, I can see no point in presenting the evidence of more than one grievor Please advise me of your position on this issue. She rephed that she understood the grievance to mvolve the Grievors wishmg "to be paid at the rate m the OAG 2 classificatIOn rather than Usher and Messenger claSSIfication" and that they WIshed to return to the earlier practIce of overtIme payment dependent on eIther dally or weekly tIme (ArtIcle 3 4 (a)) from the post August 1, 1992 change, to overtime being dependent on weekly time only (ArtIcle 3 4 (d)) She was asked to review the above letter and stated that there was no mention of the issue of movement WIthin the wage gnd, therem. She was also asked that If such a statement had been included therem, how she would have reacted at the time. She rephed that she would have mdicated that movement on the wage gnd was not raised at the prehearing. It was her behefthat the "whole issue was whether they should be paId as OAG 2 or as Ushers and Messengers" and there is a dIstinction between OAG 2 and movement wIthm" arid that the first tIme that she heard that the Issue was not "whether [it was] GAG 2 but whether 9 they should be m a particular salary range" was on June 2, 1993, when the Employer stated that placement m the salary range was a new matter, not preVIOusly raised. Ms. Rodella testified that she had been present at all proceedmgs m the matter and she dId not beheve that the Issue of the Umon changing Its gnevance had been argued before the Board. She noted that on June 2, 1993, she had drawn Mr Zarudny's attention to what she consIdered was a new matter, that IS, the movement through the wage grid. It was her opimon that It should not proceed smce the Employer had not been gIven an opportumty to go through Stages I and II, and that had it had that OppOrtunIty, that It mIght have resolved the matter Ms. Rodella agreed that up to the first day ofheanng (June 2, 1993) It was the Employer's position that the Gnevors could not dispute the change from OAG 2 to Usher and Messenger be<;ause that was a classification issue, and stated that under the Crown Employees Collective Bargaining Act and the Public Service Act, they dId not have the nght to challenge It. As well, she agreed that the word "claSsIficatIOn" does not appear in the grievances but she pointed out that, as had been preVIOusly noted by the Umon, the grievances were broadly worded. She also acknowledged that during .the course of the Stage I and II meetings and the Preheanng all of which she attended, "the Issue of appropriate salary was not resolved to the satisfactIOn of the Gnevors" As well, she admitted that when it IS saId that an unclaSSIfied employee IS "claSSIfied as Usher and Messenger", the phrase is, m effect "a short reference to [hIS or her] rate of pay" She further acknowledged that the Employer's positIOn this was a claSSIficatIOn Issue under ArtIcle 5 rather than a compensation issue under Article 3 3 1 WhICh had been determined to be mcorrect at arbitratlOn. Ms. Rodella testIfied in cross-exammatIOn that she was of the view that the Panel should refuse to hear thIS case on labour relatIons prmciples, and that, If the Gnevors WIshed to proceed, they should have to file new gnevances. Mr Zarudny stated that he recogmzed that If the Gnevors were to file new grievances, they might then have a tImelmess problem, and If they were successful on the ments, they mIght be affected by a hmIt on retroactive compensatIOn. 10 DECISION ON THIRD AND FOURTH PRELIMINARY MATTERS RAISED BY THE EMPLOYER The followmg dates are relevant: . February 5, 1991 Williams/Barber Issued which says that unclassified employees are entitled, as are classified employees to move up the eqUivalent grId. . March *, 1992 Notice of pay change from OAG 2 scale to Usher and Messenger scale posted by Employer . March 4, 1992 Memorandum from Court Services Manager to Courtroom Services Officers 1 and others, that the contracts from April 1, 1992 to March 31, 1993, were "to be adjusted by Human Resources Branch to read from April 1, 1992 to July 31, 199211 and that "[ n Jew contracts [would] be issued in July 1992 to reflect the change" The change referred to was a reductlon in duties and responsibilities. There was a concoIhitant reduction in wage rates. . March 18, 1992 Williams/Barber decIsion upheld at judicial review . June 28, 29 GrIevances re compensatIOn filed July 2, 1992 . August 1, 1992 Effective date of change for Court Services Workers to Usher and Messenger scale . August 7, 1992 Meeting of Employer and Union (Gregory GledhIll and Mary Ann Kuntz, and others) to "follow up on some outstanding concerns. .regarding the Courtroom ServIces Officers" and at which "progress through the salary ranges" was discussed. . October 22, 1992 Follow-up memorandum to meetmg of August 7, 1992, to Regional Directors from Staff RelatIOns re grid placement on Usher and Messenger gnd for Courtroom ServIce Officers . November 2, 1992 Stage II deCISIOn - no violatIOn, demed 11 ----- - . ??? Prehearmg . June 2, 1993 ImtIal heanng date - first and second Prehminary Objections of Employer heard. . June 14, 1993 Effective date of compensation freeze under Social Contract Act, 1993 . August 1, 1993 Effective date of Sectoral Agreement . August 2, 1994 Request of Umon to Gnevance Settlement Board to confirm rescheduling under Kaplan panel noting "appropriate placement on the wage gnd" as one of the issues remaimng in dIspute. . March 30, 1995 Hearing date # 2 before Kaplan Panel Settlement of overtime issue . September 26, 1995 Initial hearmg date before Finley Panel Third and fourth Prehminary Objections of Employer raised. . February 1, 1996 Last heanng date before Finley Panel, still hearing thud and fourth Preliminary Objections of Employer . March 31, 1996 End of compensation freeze imposed under the Social Contract Act, 1993 Certain events have occurred smce the Gnevors, in response to the employer~imposed changes which affected them, filed indiVIdual grievances m the summer of 1992 The prevIOus Panel rendered a declSlon and noted in the mtroductIOn that by and large the grievors allege that they are not being properly paid and request that the employer properly pay them. The partIes have been able to settle 2 parts of the Issue namely the equivalency and the overtIme The Social Contract has come and gone, although It cannot be Ignored in retrospect. In summary, the Employer has presented the Panel with the followmg arguments as to why the 12 ----- Panel should not hear the placement, movement and retroactIvIty Issue. . Placement and movement on the gnd and retroactIvIty are not part of the ongmal grievances and were introduced at a later stage by the Union, . SectIOn 48 (1) of the Social Contract Act, 1993 does not permIt thIS Panel to consider the issue of placement and movement on the grid and retroaCtivIty; and SectIon 48 (2) of the Social Contract Act, 1993 does not permit this Panel to consIder the Issue smce, although the Initial hearmg day occurred pnor to June 14, 1993, only prehmmary matters were heard. . Section 7.5 and 7 6 of the Sectoral Agreement under the Social Contract Act, 1993, would apply . The issue of placement, movement and retroactivity was not considered at Stages I and II, thereby depriving the Employer of the opportunity of settling the gnevance. Placement and movement on the grid and retroactivity are not part of the original grievances and were introduced at a later stage by the Union Mr Zarudny's allegation that the issue of placement, movement on the wage gnd and retroactIvity resulting from that are not encompassed by the wording "properly compensated" and "at proper wages", and that the Union has introduced these as new issues is not supported by the eVIdence. A review of the relevant dates and events shows that the issue of movement on the grid for unclassIfied employees was decIded by the Grievance Settlement Board in February 1991 and confirmed by the *** Court m March, 1992. Both the origmal decision and the confirmation had ImplicatIOns for every mimstry These gnevances were filed in the context or aftermath of the Williams/Barber deCISIon and judicial reVIew and the issue of movement on the gnd would have been well known to both the Employer and the Union. There IS no eVIdence that pnor to the time the gnevances were filed the Employer had gIven any mdIcatIOn that the transfer to the Usher and Messenger gnd would be carned out followmg the rulings of the Williams/Barber JudICIally-upheld deCISIOn. One week after the effective date of the change from the OAG 2 eqUivalent classificatIOn to the Usher and Messenger eqUivalent classIfication, a 13 meetmg was held between the Employer and the Umon and "progress through the salary ranges", was, according to the Employer's letter, dIscussed. The fact that the Employer chose to mterpret the gnevances WhICh do not use the word "classification" m setting out the "Statement of Gnevance" and the "Settlement DeSIred" as a classificatIOn grievance at Stages I and II and chose to focus on the marbItrabIhty of classificatIOn for unclassified staff, in November 1992, does not mean that placement and movement on the grid and retroactivity arising from that are not included in "proper compensation" It is difficult to accept that the Employer was not aware early on that "placement and movement on the grid and retroactivity arIsing from that when on August 7, 1992, "progress through the salary ranges" was identified as an outstandmg issue by the Employer Nor IS the fact that Ms. Rodella understood the "whole issue" to be whether "they should be paid as GAG 2 or as Ushers and Messenger" and only "heard" that the issue included "whether they should be paid m a particular salary range" on the initial day of hearing necessarily indicative of a change or broademng of the substance of the grievances by the Umon. It could rather indicate the Employer's narrow and ultimately ruled incorrect view of "proper compensation" and "proper wages" As It IS noted in the deCIsion of the preVIOUS Panel [t]hese grievors are not challenging their classification. What they are doing is seeking the review of their compensation, which is determined by management selecting an equivalent classification. Placement on the grid for the mdIvIdual and the timing of that placement and adjustments flowmg from that, are, m the opmIOn of thIS Panel, part and parcel of determming proper compensatIOn and proper wages. The allegation ofMr Zarudny that the Gnevors and the Umon have altered the substance of the grievances by mtroducing placement on the wage gnd m the middle of the arbItratIOn process, IS not one which the Panel accepts. The pay of the Gnevors IS estabhshed by their placement on a gnd equivalent to the Usher and Messenger claSSIficatIOn gnd. That equivalent classification, the broad pIcture, so to speak, has been agreed to, that is, Usher and Messenger The part which must follow IS to deal WIth the mdIvIduals. Each has asked to be properly compensated and whether or not that wIll be the same has yet to be 14 determmed. As it was noted by Vice-chair Kaplan It is not necessary at this time to decide whether the grievors are entitled to be paid at the different wages grids within the equivalent comparator classification. That matter can be addressed along with the merits of this case. Further, m that award, the assignment of Gnevors to the wage gnd was noted as follows. One other matter should be noted. It was the union's contention in this case that the grievors were being kept at the lowest level of the comparator classification. Whatever the appropriate comparator classification was ultimately determined by the Board to be, the union took the position that the Board should, if it took jurisdiction over this case, also direct that the grievors be assigned to the proper grid of the wage rate attached to that classification reflecting their seniority in the position. For the above reasons, this preliminary objection is dismissed. Section 48 (1) of the Social Contract Act, 1993 does not permit this Panel to consider the issue of placement and movement on the grid and retroactivity; and, Section 48 (2) of the Social Contract Act, 1993 does not permit this Panel to consider the issue since, although the initial hearing day occurred prior to June 14, 1993, only preliminary matters were heard. One of the purposes of the Social Contract Act was (to) provide for expenditure reduction for a three-year period and to provide criteria and mechanisms for achieving the reductions. (Section I (3), [Emphasis added] One of the methods chosen to achIeve that IS set out in SectIOn 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 "CompensatIOn" IS defined m the Social Contract Act as all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount. This mcludes ment and cost-of-hving increases, or "similar movement of or through ranges", as well as "increases resulting from any movement on any pay scale or other grid system" Increases resulting from promotIOn or acting promotion of an employee to a different posItion are exempt. In the case of "Salary ArbItratIOn", which is the termmology used m the margm 15 headmg of the Act, Section 48.-- (l) No increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993 The partIes presented the following cases to us wIth respect to the Social Contract Act, 1993 argument: Re Victorian Order of Nurses - Simcoe County Branch and Ontario Nurses' Association (1993) 38 L.A.C (4th) 257, (Kaufman) Re The Victorian Order of Nurses, Metropolitan Toronto Branch, and the Ontario Nurses' Association, (1993) (Unreported) (Fisher) and the August 4, 1995 Endorsement with reasons of the Divisional Court in the matters of City of Windsor v. Ontario Nurses Association and WCA/Parkwood Hospital and others In the "Simcoe County" case, the Employer, finding itself in financial difficulties and following unsuccessful negotiations, implemented a freeze on movement on the salary grid on April 1, 1993, WIthout the agreement of the Union and did not pay the increment which was dependent on length of service only, to the Gnevor on her anmversary date. Arbitrator Kaufman conSIdered the mtent of the legislation and looked in depth at the questIOn of the effect of the Social Contract Act, 1993 on the vested nghts of employers and employees both prospectively and retrospectIvely She found that The preamble and statement of purpose neither directly state or imply that the legislature intended to authorize employers to institute freezes on salary schedules or grids which had been negotiated prior to the enactment of the Social Contract Act, 1993 before the freeze period stipulated in s. 24 in the absence of mutual agreement between the parties. Nor do they state or imply that the legislature intended to prohibit arbitrators from rectifying actions taken by employers prior to June 14, 1993, which are found to be contrary to the pay provisions in the collective agreements, which would result in an employee receiving his or her correct rate of compensation effective, prior to June 14, 1993 16 She wrote I find it significant that the Act "catches" increases in compensation which were due and payable prior to June 14, 1993, and which had not been paid or given by the employer, only indirectly, where an arbitration award or decision is made on or after June 14, 1993 Section 48 (2) of the Act specifically validates increases in compensation awarded to "take effect" before June 14, 1993, if one or more days of hearing were held before June 14, 1993 but "suspends" any increase "to take effect" on or after June 14, 1993 It is clear that the legislature intended that increases in compensation which were "to take effect" from a date prior to the s. 24 freeze period were not to be prohibited, in these circumstances. The reason the legislature did not specifically speak to the matter of increases in compensation which were to take effect from a date prior to June 14, 1993, and which became the subject of a hearing and an award dated on or after June 14, 1993 is not clear It is doubtful that the legislature intended to deprive employees denied their correct rate of compensation under the collective agreement prior to June 14, 1993, of an arbitral remedy To do so would arbitrarily "fix" employees who are at the same levels of seniority at both correct and incorrect rates of pay under the same collective agreement immediately before June 14, 1993 for a period of about 33 months without a remedy and would not only perpetuate an unfairness, but would also leave some employees without means of enforcing their rights under the agreement while others were not so precluded and/or received their correct rate of pay It is difficult to imagine how such a result would give effect to the purposes stated in the preamble and s. 1 of the Act. She concluded that clearer words than those present in the preamble and ss. 1,24, and 48 of the Act as a whole must be present to oust the jurisdiction of an arbitrator to award a remedy for a violation of the compensation provisions in the collective agreement which occurred prior to June 14, 1993 and which remedy is intended [to] take effect prior to June 14, 1993. [Emphasis added] The result of the conclUSIOns made above was that the Arbitrator found that she was unable to conclude the provisions of the Social Contract Act, 1993 retroactively validate[d] the pre-June 14, 1993 actions of the employer in respect of pay provisions under the collective agreement that would otherwise constitute a clear and unauthorized breach of the agreement. Arbitrator Fisher dealt with the same Situation m the Metropolitan Toronto Branch case, m which the Employer submItted that Section 48 (1) provides that you cannot issue an award increasing compensation as this Board held its first day of hearings on or after June 14, 1993, specifically on August 4, 1993 The Umon argued that 17 [w]hen section 48 of the Act refers to "increases" in compensation", it can only refer to an increase in the proper rate of compensation, that is, an order to increase the,employee's previous correct rate to a new correct rate. Thus, if an employee is receiving the correct rate of pay, an arbitrator cannot, after June 13, 1993 order a further increase in that rate. If, however, an employer is paying an employee incorrectly, nothing in the Act prevents an arbitrator from ordering the Employer to comply with the collective agreement, and to pay that employee the correct rate of pay The Employer replied that The Union refers to your jurisdiction to declare that the Employer has violated the collective agreement. This issue is not whether you have or have not been deprived of that jurisdiction but rather, whether you can award a remedy that represents an increase in compensation, We submit that the Union is attempting to put forward a definition of "compensation" that is not clearly apparent in the Act. To interpret the defmition by adding concepts would be inappropriate. Further, the Union refers on page I to a violation that occurred prior to June 14, 1993 and is, therefore, outside of the scope of the Act. However, Section 48 (1) of the Act does not differentiate on the basis of when the increase in compensation is to take place. It refers only to the date of the arbitration award or decision followed by some specific exceptions. In conclusion, therefore, we reiterate our submission that the doctrine of expressio unius, exclusio alterius applies to this matter and that you are without jurisdiction to issue an award that increases compensation. ArbItrator FIsher arrIved at the followmg conclusions I accept the argument of the Union that the Social Contract Act, 1993 does not prevent me from finding that there has been a violation in that the annual increments provided for in the Collective Agreement during the period from April 1, 1993 to June 14, 1993 for those individuals whose annual earnings are more than $30,000.00 Of course for those individuals whose annual earnings are less than $30,000, there is no prohibition against moving up the grid even after June 14, 1993 I accept the Union's argument that I am not being asked to award an "increase in compensation", rather, 1 am simply enforcing the existing Collective Agreement to ensure that the wages [ot] the employees as of June 14, 1993 are the correct wages according to the existing Collective Agreement. The scope of SectIon 48 of the Social Contract Act, 1993 was put to the Divisional Court durmg the mId-summer of 1995 m the matter of City of Windsor v. Ontario Nurses Association and m ten other cases deahng WIth the same Issue. In Its Endorsement, Issued at the same time, the Court noted that the apphcatIOns It had before It turned on "the impact of the SOCIal Contract 18 Act S 0 1993 c. 5 on the JunsdIction of an interest arbitration board to award compensation mcreases after June 14, 1993 ," [EmphasIs added] and then referred to "several other apphcatIOns for JudIcIal review of arbItrations that turn on the power ofthe arbitrator to award increases m compensatIOn" The Court, m consIdering the standard of reVIew, stated that Section 48 (1) is a controlling provision in an external statute, a general public enactment which expressly limits the arbitrator's jurisdiction In its conclusIOns, the Court stated that In our view the words of s. 24 (1) and (9) and S. 48 (1) are clear and unambiguous prohibitions which freeze compensation and prevent increases of the kind given here. [Emphasis added] In our view, an award giving increases is inconsistent with the overall intent and purpose of the Social Contract Act and in particular with s. 48 (I). and The majority of the Boards in both decisions [interest awards] erred in concluding they had jurisdiction to award increases for bargaining periods excluded by the Social Contract AcL [Emphasis added] In deahng with compensatIOn, it noted that "the effectIve period of the Social Contract Act [was] from June 14, 1993 to March 31, 199611 The DIviSIOnal Court dId not address the issue of the enforcement or correction of compensation in the administration of a collective agreement in eXistence prior to June 14, 1993 This was the Issue dealt With by ArbItrators Kaufman and Fisher However, the Court did deterrmne that the language of Section 48 (1) is unambiguous and dictates that no increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993 [Emphasis added] The Kaufman heanng was held on July 14, 1993 and a deCISIOn rendered on November 26,1993, whIle the FIsher hearing was held on August 4, 1993 and a decIsion rendered on November 19, 1993, and therefore, neIther case fell wIthm the parameters of the exemptIOn set out m SectIOn 48 (2) Both ratIOnahzed that it was not the mtention of the Legislature to prevent employees whose 19 compensatIOn IS to be fixed for the penod of the freeze to enter the freeze penod and remaIn throughout the penod wIth compensatIOn whIch IS Incorrect or In vIOlatIOn of the collective agreement In effect at the commencement of the freeze penod. Both ruled that they had JunsdICtIOn to order the Employer to correct a vIOlatIOn whIch occurred pnor to June 14, 1993 and WhICh would result In a remedy taking place at a pOInt In time pnor to June 14, 1993 GIven the DIVIsIonal Court rulIng concernIng the lack of ambigmty In SectIOn 48 1 as set out above, and the fact that no evidence was presented to us that either case had been judIcIally revIewed, It IS sIgmficant therefore, that they appear to stand as established Junsprudence. In the case at hand the initial hearIng day occurred on June 2, 1993 The Union submItted that, gIven the imtial hearIng date, the situatIOn at hand fell withIn the exemption set out In Article 48 (2), The Employer argued that SectIOn 48 (2) of the Social Contract Act, 1993 does not permIt this Panel to conSIder the issue since, although the initIal hearIng day occurred pnor to June 14, 1993, only prelimInary matters were heard. Mr Zarudny submItted first that the InItIal Panel was not seized with the merits of the case having dealt only with prelIminary matters and that therefore, the Grievors would not be covered by Section 48 (2) which states that (2) Despite subsection (1), if one or more days of hearings have been held before June 14, 1993 in an arbitration, but the award or decision is not made until on or after that date, any increase in compensation awarded to take effect before June 14, 1993 is valid, but any increase to take effect on or after that date is suspended. The Panel IS of the opInion that "one or more days of heanngs" refers to the movement of process Into the formal arbitral process. The sectIon does not differentiate between prelImInary matters and the ments. In thIS Panel's OpInIOn, such a dIfferentiatIOn as the Employer has put forward would need to be clearly spelled out In the wordIng of the statute before one could find thIS further refinement. One of the problems WIth such a readIng of the sectIOn, IS that one of the partIes could delay the proceedIngs SImply by.bnngIng forward prelImInary ObjectIOns to forestall the conSIderation of the ments, thereby gaInIng an unfair advantage and, subvertIng the "faIr and eqmtable manner" Intent referred to In the Preamble to the legIslatIOn. For the above 20 reasons, the Panel dIsmIsses thIS objection. The Panel finds that Its jUnSdIction has been establIshed by date of the mItial heanng day of June 2, 1993 under the exemptIOn set out m Section 48 (2) of the Social Contract Act, 1993 It IS not, therefore, necessary for the Panel to reach a declSlon with respect to ItS junsdIctIOn under SectIOn 48 (1) Section 7.5 and 7.6 ofthe Sectoral Agreement under the Social Contract Act, 1993, would apply The Panel mterprets Sections 7.5 and 7 6 (at page 7) within the context of the Social Contract Act, 1993, and concludes that neither IS applIcable to the period pnor to June 14, 1993 The Panel does not consIder thIS a valid argument agalJ:lst our assummg JUrISdIctIOn. The issue of placement, movement and retroactivity was not considered at Stages I and II, thereby depriving the-Employer ofthe opportunity of settling the grievance. The letter from the Deputy Minister's designate to Mr Barker, Leslie Slater, identified the substance of the grievance as "not being properly compensated for the duties I am performmg as a Court Constable" and the settlement deSIred as "that the employer compensate me by paymg the proper wages and overtIme" At the same time, she charactenzed the gnevance as a "claSSIfication grievance" and noted that the issue of classification is not arbitrable for unclassified staff Compensation (Le. the establishment of a salary range for a particular classification) is bargained at salary negotiations, and is not dealt with through the grievance process as described under Article 27 The charactenzatIOn by the Employer of the Issue as a classIfication Issue and therefore marbItrable for unclassified employees, m effect "shut the door" on consIdermg the substance of the gnevance. The Panel IS of the opmIOn that the Employer at that stage was not open to dIscussmg the issue of compensatIOn, and that whIle Stage I and Stage II dId offer an opportumty for such dIScussIon the Employer had closed the door For thIS reason, the Panel does not accept 21 '- ~ thIS reasonmg put forward by the Employer Moreover, thIS matter has already been determmed by V Ice-chair Kaplan m the mltIal prelImmary decIsIon. The Umon argued that the Employer had waived ItS nght to present thIS objectIon before the current Panel. GIven the above rulIngs, It IS not necessary for the Panel to consider thIS argument. The Employer submItted that there was no agreement or rulIng to consolidate the gnevances and that this should affect our Junsdlction to hear and determme the remammg Issue. The indIvIdual gnevances have been consolidated admmistratlvely by the Grievance Settlement Board, With or without the agreement of the parties, and tlus sItuatIOn has prevaIled for some time. There is no eVIdence of an objection to tlus arrangement at the tIme or before the previous Panel. This Panel IS prepared to entertaIn argument on whether the gnevances should be heard Individually, m groupmgs, or through the use of a representanve grievor, Mr Barker, at the next hearing date, if the partIes fall to agree on a method of proceeding on the ments prior to that date. In the result, the prelimmary objections of the Employer are dismissed. The Panel has concluded that the objectIOns raised by the Employer are not obstacles to its jurisdictIOn over the remaining Issue of placement and movement of the Gnevors on the equivalent grid, and the consequent retroactivIty The hearing on the ments wIll commence on a date set by the Registrar of the Grievance Settlement Board. The Panel belIeves that It IS in the best Interests of the partIes, from a labour relatIOns perspectIve, to have the merits of the remaining Issue heard WIthout further delay and a deciSIOn rendered. However, the Panel also mVltes the partIes to partICIpate m settlement dIScussIons pnor to the hearIng date. The Panel would also be WIllIng to aSSIst the partIes for a penod not to exceed one heanng-day in a medIatIOn/arbItratIOn process prOVIded that both partIes consent to the process. 22 ~ ;; .'. '?~ Dated at KIngston H,S FInley, VIce-cha'r ~ 't".t"j"j1 Q~ F T Colhct, Member J-C Laniel, Member I I I 23