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HomeMy WebLinkAbout1996-0459UNION96_07_15 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO ,.r 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE(J;ELECOPfE (416) 326-1396 GSB # 459/ 6 OPSEU # 96U058 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Management Board Secretariat) Employer BEFORE F Briggs Vice-Chairperson FOR THE G. Leeh GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 21, 1996 ..- A Memorandum of Settlement was sIgned by the parnes on March 29, 1996, wluch contamed a number of new proVlslons regardmg the lay-off procedure, dIsplacement, redeployment and recall. The Slgrung of the Memorandum of Settlement ended a five and one half week pubhc servIce strike wluch began, m large measure, due to the dIfferences between the parnes regardmg these parncular proVlsIons. The Employer IS proceedmg WIth a large provmce Wlde lay-off that covers all nurustnes However, the parnes are at odds about the meamng of some of the new terms of the memorandum. They have agreed that these matters of d1spute proceed qUlckly to arbItration m an effort to faclhtate as httle dlsrupnon as possible The mstant gnevance IS a Dmon gnevance and states The Mimstnes are viOlatmg Article 24 m that unclassIfied contract Jobs are bemg treated as pOSItions for the purposes of Article 24.2.4 and 24.2.5 A declaratIon by the Board that the Employer's mterpretatlon IS contrary to ArtIcle 24, any negatIve consequences resultIng from the mcorrect interpretatIon be remedted, any other remedy the Umon advIses and/or the Board deems Just and eqwtable m the crrcumstances. ArtIcle 24 2 IS tItled "NotIce and Pay m LIeu" and the two clauses at Issue state 24.24 Where an employee accepts pay m lieu of notIce and IS re-appomted to a pOSItiOn m the OntarIo PublIc ServIce pnor to the ongmally projected lay-off date, the employee will repay to the MinIstry a sum of money equal to the amount paId for the penod between the date of reappomtment and the ongmal projected lay-off date In addttIOn, the employee will repay to the Mirustry all momes, excludmg tuItiOn fees, receIved under SectIon 24.3, and/or paragraph 4 of Appendtx 14 The employee's contmuous serVIce date, for all purposes except ArtIcle 53 or 81 (TermmatiOn Pay), shall be deemed to mclude both servIce up to the last day of active work and the accumulatiOn of servIce after the date of re-appomtment. The new servIce date for purposes of termmation pay shall be the date on whIch the employee recommences work 25 2.5 Where an employee who accepts pay m heu of notIce IS appomted to a pOSItion m the Ontano Pubhc ServIce after the ongmally projected lay-off date, a..l1d pnor to the expIratIon of a further twenty-four (24) months, the employee will pay to the Mirustry all momes, excludmg tuItIon fees, receIved under SectiOn 243, and/or paragraph 4 of Appendix 14 The employee's contInuous servIce date for all purposes except ArtIcle 53 or 81 (TennmatIon Pay), shall be deemed to mclude both servIce up to the last day of actIve work and the accwnuIatIon of servIce after the date of reappomtment. The new servIce date for purposes of tennmatiOn pay shall be the date on whIch the 1 - ~ 2 employee recommences work. Other relevant provIsIOns of the collectIve agreement are as follows 3 1 The only terms of tlus Agreement that apply to employees who are not cIvil servants are those that are set out m the Article. 3.2 SectIOns 3.3 to 3 16 apply only to unclassified staff other than seasonal employees. 3 15 11 - CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS 3 16 The following artIcles shall also apply to unclassified staff other than seasonal employees: A, 1,2,4 1,44,6, 7 7, 9, 11, 12, 15, 16, 17 18,21,22,23 25, 26A, 27, 28,29,32,33,34,35,36 and 86. 3 17 SectiOns 3 18 to 3.37 apply only to seasonal employees. 3.37 The followmg artIcles shall also apply to seasonal employees. A, 1,2,4 1,44, 6,9, 11, 12, 15, 16, 17, 18,21,22,23, 26A, 27, 28, 29, 32, 33, 34, 35, 36, and 86 25.3 Where an employee has been released m accordance With Article 24 (Employment Stability) and rehtred Wlthm two (2) years, the penod of absence shall not be computed m detennmmg the length of contmuous ServIce. However, penod of contmuous servIce before and after such absence shall be considered contmuous and are mcluded ill determmmg the length of contmuous service. 538 NotWIthstanding section 537, an employee who has been released m accordance WIth ArtIcle 24 (Employment Stability) and who IS subsequently reappomted m accordance WIth sectIon 253 of ArtIcle 25 (Semonty) may, at lus option, repay any termmatIon payments received under tlus Article to the Treasurer of Ontano, and thereby, restore ternunatlOn pay entitlements for the penod of contmuous service represented by the payment. The partIes were agreed that I had the junsdICtIOn to hear and determme the gnevance and that there were no prelImmary matters. It was the Umon' s subInlsslOn that the task of the Board IS to mterpret the word "posItIon" as set out m the two proVISIOns above "PosItion", as contemplated m ArtIcle 24 must be found to mean jobs for classIfied staff only The Employer's VIew was that the Issue at hand IS the phrase "posItIon m the Ontano PublIc SefVIce" and therefore, people returnIng to any job, mcludmg unclassIfied pOSItIOns, would be oblIged to repay momes m accordance WIth the agreement of the partIes. ThIs would dtsallow people from "double dlppmg", that IS to say that employees who received momes -".- /' , ~ 3 m heu of notIce would not be able to be employed by the Employer dunng theIr already paId for penod of notIce UNION SUBMISSIONS Mr Leeb, for the Umon, began by suggestIng that the language IS not clear and, accordmgly, the Board must look at the collectIve agreement as a whole to assIst WIth ItS mterpretatIon. Arttcle 3 proVIdes the terms and condItIons for unclassIfied employees Arttcle 3 1 states 3 1 The only terms of tins Agreement that apply to employees who are not civil servants are those that are set out m tins article. That artIcle IS separated mto sectIons, one for seasonal employees and the other for unclassIfied employees who do not work on a seasonal baSIS. For both groups, there IS a lIst of other proVIsIons of the collectIve agreement wlnch apply and ArtIcle 24 IS not on that lIst. There are many dIfferences between classIfied and unclassIfied staff and the partIes pomtedly dId not mtermmgle the nghts of these two groups of employees For example, unclassIfied employees do not get surplus notices and classIfied employees cannot bump mto unclassIfied pOSItIons. It was conceded by the Umon that "posItIon" has vanous meamngs throughout the collecove agreement. The meamng ascribed to "poSItIon" m Arttcle 3 IS not necessarIly the same as Its meanmg m ArtIcle 24 In Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Young) (March 23, 1993), unreported (Kaplan), the Board conSIdered the meamng of "former posIoon" as that term was apphed to an employee returmng from maternIty leave It was stated on page 20 In general, we agree With employer counsel that the rules of statutory mterpretatIOn favour asslgmng the same meanmg to the same word used m the same statute. In general, tins pnnclple undoubtedly applIes to the constructIon of collectIve agreements. We do not, however, fmd that It applIes m tins case because a review of the use of the word "pOSitIOn" throughout the Collective Agreement leads one mescapably to the conclUSIOn that IS used to mean dtfferent thIngs m different sections. Tlus IS hardly surpnsmg gIven the SIZe of the bargammg umt, and the countless posItions throughout the Ontano PublIc Service. - ,- 4 Moreover, It IS hardly surpnsmg that the word should mean one thIng to an employee returnmg to her Job from maternIty leave and another thmg to a seasonal employee relymg on hIS or her semonty nghts to return to work at the start of another season, In that matter, the Ontano Manual of AdrmrustratIon was mtroduced mto eVIdence whIch defmed "pOSItIon" as A groupmg of dutIes and responsibihties. *estabhshed by management; and *performed by an mwvIdual or group of mdlVlduals WIth a specIfic orgaruzatlOnal urnt; and *estabhshed m the IPPEBS Mr Leeb argued that "pOSItIon" has a conSIstent meamng Wlthm Arttcle 24 and It means only classIfied pOSItIOns. In both ArtIcle 24 2 4 and 24 2 5, the partIes put theIr mmds to what occurs m the event that a severed employee returns to work after receIVIng pay m lIeu of notIce The last two sentences of each artIcle proVIdes that the employee's contInuous semce date IS adjusted, takmg mto account the penod of any absence ThIs IS unportant to note because contInuous serVIce date effects the level of benefits of only classIfied employees Therefore, It makes no logIcal sense to suggest that unclassified pOSItIons are consIdered under the fIrst sentence of these prOVIsIOns Further, the Umon drew attentIon to the reference m the ArtIcle 24.2 4 and 24.2.5 to ArtIcle 53 whIch proVIdes for "TemunatIon Payments" Seasonal and non-seasonal non-classIfied employees are specrlically d1sentJ.tled to the proVISIOns of tlns artIcle accordmg to ArtIcle 3 Therefore, only people who receIved temunatIon pay, that IS, classIfied employees, are addressed m the two artIcles at Issue The same argument must prevaIl for the reference to ArtIcle 25 3 whIch prOVIdes for adjustments to an employee's semonty UnclassIfied employees are not entItled to any nghts set out m ArtIcle 25 The Umon urged that the collectIve agreement must be read as a whole and hannomous docwnent so as not to render any proVISIons meamngless or absurd. In thIS regard, Mr Leeb rehed upon Re F A. Tucker (Atlantic) Ltd. and International Brotherhood of Electrical - , 5 Workers, Local 1928 (1985), 20 L.A.C (3d) 33 (Outhouse) For the Employer's VIew to be accepted, a further sub-section would be reqwred m each artIcle settIng out the condItIons wluch apply to unclassIfied employees Such language would not mclude qualIfiers for the relunng of unclassIfied employees. The Dmon conceded that the language IS poorly crafted and the words "m the publIc semce" nught confuse the Issue somewhat. However, If the Board fmds a confhct m the wordmg of the artIcles at Issue, It must read out whatever IS necessary to have the agreement make sense m total Regardmg the Employer's assertIon that the language was drafted to aVOId a problem WIth "double dIppmg", the Dmon subnutted that tlns IS not a sItuation where double dIppmg can occur Double dIppmg occurs when an employee IS paId twIce for the same pmpose Employees are entitled to termmat10n pay That IS a benefit that they have earned over therr years of semce. If they go back mto a classIfied posItion they wIll be paId for the work that they are domg. The Employer IS concerned that the Issue of double dIppmg mIght be raIsed by the medIa and embarrass the government. Mr Leeb argued that accordmg to ArtIcle 24.2 4 there could be no double dIppmg even If the Employer was correct m Its mterpretat1on. However, WIth ArtIcle 24 2 5, people would be paymg back the enhanced severance Tlus makes sense because they would be entitled to It at the conclusIOn of therr new penod of employment. If an employee returns to work In an unclassIfied posItIOn It IS not necessary to gIve back severance because unclassIfied employees do not get severance ill the fIrst mstance If there IS a contmumg need for work to be done, then the Employer can keep employees and not lay them off. EMPLOYER SUBMISSION Mr Patterson subnutted that the Employer has a legItunate mterest m savrng money and tlns ~ /' -- 6 can only be aclueved by a substantIal reductIon m the workforce The goal IS to have fewer classIfied and fewer unclassIfied employees The Umon suggested that there IS only a downsIzmg m the classIfied workforce and tlus SImply IS not the case. IrrespectIve of any argument put forward by the Umon, the Employer asserted that "m the pubhc seTVlce" follows the word "pOSItIon" and tlus Board cannot amve at an mterpretatIOn wInch effectIvely reads out those words. It IS very sIgmficant to note that WIth the exceptIOn of ArtIcle 25 l(a), there IS no other reference m the collectIve agreement to the "Ontano Pubhc ServIce" The Employer agreed that "pOSItIons" takes on dIfferent meanmgs m vanous sectIons of the collectIve agreement. There are classIfied pOSItIons and unclassIfied pOSItIons. One need not look any further than ArtIcle 3 15 11 for confmnatIon of that fact. Mr Patterson sublIDtted that the appropnate startIng pomt for tlus Board IS WIth the Public Service Act, R.S 0 1990, c.P 47 (heremafter referred to as the "Act") Tlus IS the statutory authonty by wluch the Crown employs people Tlus IS confmned m Re The Crown in Right of Ontario (Ministry of Revenue) and OPSEU (Beresford/MilIey) (November 29, 1989), mrreported (Samuels) Secoon I of the Act proVides defimoons wluch are relevant for tlus Board. "classified servIce" means the part of the pubhc servIce to wluch clVll servants are appomted, unclassrlied servIce" means the part of the pubhc servtce that is composed of pOSItIOns to wluch persons are appomted by a Illimster under thIS Act. It IS clear from the Act that "unclassIfied seTVlce" IS part of the "pubhc seTVlce" and IS composed of VarIOUS "posIoons" There are two methods of appomtment to publIc servIce under SectI.on 6 and 8 of the Act. Hence, It IS statutonly proVided that the "Ontano PublIc Semce" IS made up of both clasSIfied pOSItIOns and unclassIfied posIoons. It IS WIth tlus m mmd that ArtJ.cle 24 of the collectIve agreement should be conSIdered. Indeed, Mr Patterson suggested that the artIcles at Issue are crystal clear when conSIdered m tlus context. That IS ~ - 7 buttressed by the decIsIOn IS BeresfordlMilley (supra) GIven the extensIve case law, the partles knew precIsely what was meant when they mcluded the words "m the Ontano Pubhc SefVlce" after "posItion" m the two artIcles at hand. RegardIng the Umon's VIew that the Employer IS askmg the Board to "read out" the last two sentences of ArtIcle 24 2 4 and 24.25, Mr Patterson submItted that those are necessary to clanfy the nghts of employees who return to a posIoon m the Ontano Pubhc ServIce In accordance WIth artIcle 3 15 11, language was requrred to clanfy condItIons for employees returnIng to unclassIfied posIoons and that IS precIsely what the last two sentences of ArtIcle 24.2.4 and 24.2.5 proVIde That IS, 1fthe employees hold a posIoon for more than two years the posIoon will be converted to classified status. The same IS true for seasonal employees In approxunately 1991, the Mimstry of Natural Resources employees were rolled over from unclassIfied to classIfied, for example Therefore, clanficatIon of semonty nghts IS rmportant. ArtIcle 25 speCIfically proVIdes that people convertmg from unclassIfied to claSSIfied sefVlce get some credIt for the penod of tIme spent as an unclassIfied employee If an employee returns to unclassIfied sefVlce and does not move on to claSSIfied sefVlce, therr nghts are It would have been redundant to set out those nghts m ArtIcle 24 2 4 and 2425 However, If an employee retwns to unclassIfied sefVlce .and holds several unclassIfied pOSItions and then reverts to the status of a clasSIfied employees, language IS needed for that converSIOn. Tills IS the purpose of the last two sentences The Umon has suggested that the word "pOSItion" be mterpreted conSIstently wIthm ArtIcle 24 Mr Patterson asserted that srmply to do so makes no sense because the word "pOSItIOn" IS followed by the phrase "m the Ontano Pubhc SefVlce" wluch IS clearly dIfferent than any else m ArtIcle 24 The Employer candIdly admItted that these proVISIOns are mtended a dIsmcentive to -- /' /' 8 classIfied employees to return to work m the pubhc sefVlce m any capacIty, be It classIfied or unclassIfied. The Employer's mtenbon IS to sIgmficantly downsIze, not merely to go through an exerCIse of gIvmg employees nobce and severance pay The Employer was equally candId that It had concerns of pubhc percepbon WIth respect to "double dIppmg" The purpose of severance IS to proVIde money to allow employees to look for other work. NObonally, they are paId for a penod oftrme after the actual layoff. It would be dIfficult for the government to defend to the publIc the payment to an employee of 6 months of severance and 26 weeks of enhanced severance and then re-employmg that same employee after SIX weeks It IS exactly for tlus reason that the Employer built m the msmcentlve to return to any form of work WIth the Ontano Pubhc ServIce In reply, the Umon argued that there IS no reference m the collecbve agreement to the Act. Therefore It IS not clear that reference to the Act IS what the partIes mtended. The collecbve agreement does not say "posIoon m the Ontano Pubhc ServIce as defmed m the Public Service Act." If the partJ.es mtended such an mterpretabon they could have and would have saId that. Mr Leeb urged that because the language IS unclear, the entIre artIcle and collecove agreement must be consIdered m amvmg at a determmaoon. Regardmg the Employer's assertIOn that language was requIred to prOVIde for unclassIfied employees after two years, why dId the partIes not set out what IS to happen for the first twenty four months of such servIce? It IS not a co-mcIdence that all of the proVISIOns winch apply to those retunung, m accordance WIth these artJ.cles, are those to wInch only clasSIfied employees are enotled. All of these proVISIons apply on the first day back to work and that IS because It IS only classIfied employees that are consIdered. -... , ..-' 9 DECISION The Beresford decIsIOn IS helpful m that It mvolved a deCISIOn of the Board Without clear language to assIst m the mterpretatIon of the collectIve agreement. In the mstant case, to suggest that the wordmg IS not a model of clanty understates the matter As the Uruon pomted out, the partIes were mconsIstent m theIr use of partIcular words F or example, throughout ArtIcle 24 reference IS made to appomtment, re-appomtment and re-hrre when they were seem to conSIder the same actIVIty GIven the situatIon that the partIes found themselves m dunng the negotIatIng of the memorandum of settlement, It IS not surpnsmg that occasIOnal mconsIstencIes rmght occur However, such mconsIstency and lack of clanty make It most drlficult for an mdependent thrrd party to later assess what the partIes mtended. After much conSIderatIon, I am of the VIew that the Employer's VIew must prevaIl. The presence of the words "m the Ontano Pubhc SelVlce" must have some mearung and purpose I cannot fmd that "a pOSItIon" and "a pOSItIOn m the Ontano PublIc Semce"have the same meanmg wluch IS, effectIvely, what the Uruon IS suggestIng, The partIes elected to add a defmmg phrase to the word "posItIon" m ArtIcle 24 2.4 and 24.2 5 The Uruon argued that the collectIve agreement does not refer to the Act and therefore It does not apply I dIsagree The Public Service Act IS the govemmg statute m tlus matter llTespectIve of whether the partIes refer to It specmcally Moreover, I cannot belIeve that the Umon would agree to add the phrase "m the Ontano PublIc SerVIce" to defIne "posItIon" m ArtIcle 24 2.4 and 24.25 (and no other artIcles) WIthOut an appreCIatIon for the affect of that addItIon. I was sympathetIc to the Umon's argwnent that It was unlikely that the Employer would put roadblocks m the way for claSSIfied staffwho rmght be lughly tramed WIth speCialIzed skIlls ~ ,/ ~ 10 to retwn to work. However, I accept the Employer's response that the whole pomt of artIcles 24.2 4 and 24.2.5 IS to act as a msmcentlve for employees returmng to work. The Employer IS undergomg a substantIal downsIzmg. It wants to permanently dIvest Itself of a large number of employees and does not want to encourage theIr return. I accept that explanatIOn. The Dmon would have me completely read out the phrase "m the Ontano Pubhc SefVlce" I cannot do that. The Employer argued that the last two sentences of the artIcles are necessary because they clanfy the nghts of some employees who return to a pOSItIOn m the Ontano Pubhc SefVlce If the employee does not move beyond an unclaSSIfied posItlon theIr nghts are set out m other sectIons of the collectIve agreement and to reproduce them m Artlcle 24 would be redundant. The last two sentences explam what occurs to employees who retwn to a number of unclaSSIfied pOSItIons and eventually return to claSSIfied sefVlce I accept tlus explanatIon because It IS neIther mternally mconsIstent nor requITes me to read out any words from the collectIve agreement. It IS a canon of mterpretatlon that words are to be gIven theIr plam meamng. "In the Ontano Pubhc SefVlce" IS a fauly broad phrase wlu.ch I would have dIfficulty restrIctIng to mean only claSSIfied Jobs. Moreover, the partIes must have meant posItlons to mean somethmg other than claSSIfied pOSItIOns as set out m other sectIons of Artlcle 24 because they expressly and speCIfically added "m the Ontano Pubhc SefVlce" There can be no doubt that tlu.s mterpretatIon will act as a dIsmcentIve to claSSIfied employees who rmght otherwIse have conSIdered returnmg to an unclaSSIfied pOSItIon. I understand the Dmon's VIew that It mIght proVIde some orgamzatIOnal dIfficulties for the Employer when a pOSItIOn thought to be surplus IS, m fact necessary and reqUIres lu.gh1y tramed people WIth specIahzed skIlls The dIsmcentIve mIght create as many problems as It cures. ObVIously tlus IS a chance that the Employer IS wlllmg to take and, m fact, deCIded ~~....; - 11 to take at the tune It negotIated Article 24 2 4 and Article 24.2 5 F or all of those r asons, the gnevance is dIsmIssed. Dated ill Toronto, tlus 15th day of July, 1996 I Fe lClty D Bnggs Vice Charr