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HomeMy WebLinkAbout1996-0823BURNS96_07_23 ONrARIO ElrlPLOY;'S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 823/96 OPSEU # 96E799 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Burns) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional services) Employer BEFORE R J Roberts vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 18, 1996 1 AWARD In thIS arbItratIon, the gnevor clatmed reImbursement under the collectIve agreement for dental expenses that were mcurred on February 27, 1996, the day after the commencement of the recent strike It was clatmed on behalf of the gnevor that he nevertheless was covered by the collectIve agreement because at the time, he had been "deemed" to be emergency servIce personnel under the December 15, 1995 EssentIal ServIces Umbrella Agreement for the CorrectIOnal SerVIces Ul11t (heremafter referred to as the "umbrella agreement") For reasons WhICh follow, the gnevance IS dIsmIssed. The umbrella agreement was dIrected toward governmg the operatIOn of the correctIOnal serVIces bargammg umt m the event of a stnke It dIVIded mto groups the correctIOnal officers at each mstItutIOn and prOVIded that each group would perform on a two-week rotatIOnal baSIS the essentIal servIces III theIr IllstItutIOns. Dunng the two-week penod III WhICh the correctIOnal 2 officers m a group were reqUIred to perform essentIal serVIces, they were covered by the collectIve agreement. The umbrella agreement further prOVIded as follows 21 (c) Essential ServIces Worker DesIgnatIOn It IS understood that employees are only deemed to be essentIal for the rotatIOnal penod durmg WhICh they are reqUIred to work. It IS also understood that at all other tImes they are deemed to be emergency servIce personnel. Dunng the pen ods m WhICh the correctIOnal officers III a group were not reqUIred to work as essentIal workers, they were "deemed" to be emergency servIce personnel The umbrella agreement dId not define whether the collectIve agreement applIed to correctIOnal officers dunng the penod m WhICh they were "deemed" to be emergency serVIce personnel Another agreement, however, the CorrectIOnal ServIces Bargammg Umt Emergency ServIces Agreement, dated November 8, 1995 (heremafter the "emergency serVIces agreement"), prOVIded as follows 6 All provISIOns of the collectIve agreement shall apply to bargammg umt employees desIgnated to prOVIde emergency serVIces under thIS agreement, or as agreed to by the partIes at the central table 3 The collectIve agreement was Said to apply to "bargammg umt employees desIgnated to provIde emergency servIces." At the heanng, It was submItted on behalf of the gnevor that whenever the December 15, 1995 umbrella agreement "deemed" correctIOnal officers to be emergency serVIces personnel, It "deSIgnated " them to provIde emergency servIces wIthm the meamng of sectIOn 6 of the emergency servIces agreement. It followed, the submIssIOn went on, that whenever correctIOnal officers were "deemed" to be emergency serVIces personnel sectIOn 6 of the emergency serVIces agreement reqUIred the collectIve agreement to be applIed to them. Because the gnevor was deemed to be emergency servIces personnel at the tIme he mcurred hIS dental expense, the submISSIOn concluded, thIS meant that the collectIve agreement applIed to hIm and he was entItled to claim reImbursement under the dental benefits plan of the agreement. In an oral award at the heanng I rejected thIS submISSIOn. It seemed to me that It reached too far Equatmg "deSIgnated" under sectIOn 6 of the emergency serVIces agreement WIth "deemed" under sectIOn 21 (c) of the umbrella agreement would lead to the conclUSIOn that the partIes mtended the collectIve agreement to apply to all correctIOnal officers m the bargammg umt throughout the entIre penod of the stnke Throughout thIS penod, correctIOnal officers were deemed under the umbrella agreement to be eIther essentIal workers or emergency serVIces personnel Accordmg to the submISSIOn of the umon, the collectIve agreement would apply to them regardless of WhICh they were deemed to be It would not matter If a correctIOnal officer were ever called m to perform emergency serVIces work. It would not matter If the correctIOnal 4 officer spent all of hIS or her non-essential work rotatIOn on the pIcket lme To ascnbe so far-reachmg an mtentIOn to the parties -- and m partIcular, the employer -- would be unreasonable It seems to me that the more reasonable mterpretatIOn of "desIgnated" under sectIOn 6 of the emergency serVIces agreement would be to equate It to "scheduled" or "called m" by the employer to provIde emergency serVIce Schedulmg or callmg m an employee for thIS purpose would seem to be an appropnate pomt at whIch to tngger apphcatIOn of the collectIve agreement to an otherwIse-stnkmg employee It IS then that the nghts and responsibIlItles of the employer and employee under the emergency serVIces agreement crystalhze The employer expects to receIve emergencv serVIces at a specIfic tIme from a specIfic employee The employee IS reqmred to provIde them. In return, the employee reasonably expects to receIVe the benefit of the colleCtlve agreement. In the present case, the gnevor 1l1curred hIS dental expense on the day after the commencement of the stnke A.t that tIme, he was deemed to be emergency serVIces personnel under the umbrella agreement but had not been scheduled or called m by the employer to perform emergency serVIces In the case of the gnevor, he was not called In to perform emegency servIces untIl the final week of the strIke Untll he was called Ill, the grIevor was not "deSIgnated" to perform emergency serVIces wIthm the meanmg of sectIOn 6 of the emergency serVIces agreement Accordmgly the collectIve agreement dId not apply to the gnevor at the tIme of hIS dental expense and he cannot clalm reImbursement under the dental benefit plan of the agreement. The 5 gnevance must be dIsmIssed. Dated at Toronto, OntarIo thIS? 3~ay of July, 1996 ---------- "- '\ / . Jack Roberts, VIce ChaIr