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HomeMy WebLinkAbout1996-2875.UNION97_04_16 owrARIO EMPWYES DE LA COURONNE CROWN EMPLOYEES DE L'OwrARIO 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) M5G 1Z8 FACS/MILEfTELECOPJE (416) 326-1396 GSB # 2875/96 OPSEU # 97U036 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 N. Dissanayake Vice-Chair FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 2, 1997 2 DECISION This is a policy grievance wherein the union alleges that the employer is contravening the collective agreement in the manner it calculates the seniority of employees with prior Go-Temp service, who are subsequently appointed to the classified service The collective agreement contains, inter alia, the following provision for establishing the seniority (or continuous service date) of an employee who is appointed to the classified service, after a period of employment in the unclassified service 18 (1) SENIORITY (LENGTH OF CONTINUOUS SERVICE) An employee's length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence (b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his full-time employment back to the first break in employment which is greater than thirteen (13) weeks; Article 18 1 also includes the following definition "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications; The Go-Temp service is a temporary employment agency operated by the Ontario Government as a source of filling its temporary employment requirements As temporary vacancies arise, the employer draws from a roster of employees in the Go-Temp Service These vacancies can be short- term, as when filling in during a short-term illness, or long-term, as when 3 replacing an employee on maternity leave or extended leave of absence One of the key differences between the unclassified status and Go-Temp status is that while the former employees enter into a formal contract with a definite duration, the latter do not have contracts for a fixed term Although the entitlement of unclassified employees under the collective agreement is not as extensive as that of employees in the classified service, article 31 confers many benefits on unclassified employees incl uding different types of leaves of absence such as pregnancy and parental leave, bereavement leave and sick leave Article 34 1 defines a Go-Temp employee as follows A Go Temp is an unclassified employee who is on a temporary work assignment arranged by the Civil Service Commission under the Go Temp Services Program A Go Temp ceases to be an employee upon completion or termination for any reason, of the temporary work assignment Article 34 proceeds to provide for wage rates for Go Temp employees and in Article 34 4 stipulates as follows 34 4 The following articles shall apply to Go Temp employees 1, 2, 3, 4, 22 and 80 No other articles shall apply The articles that do apply deal with Recognition (Art 1), Management Rights (Art 2), No Discrimination/Employment Equity (Art 3), Check off of Union Dues (Art 4), Grievance Procedure (Art 22) and Term of Agreement (Art 80) It is apparent that under the collective agreement, none of the benefits, including sick leave, are available to Go Temp employees Since article 18 1 (and its predecessor provision article 25 1) was ~.~ 4 not applicable to Go Temp employees, it meant that a Go Temp employee subsequently joining the classified service got no credit for his/her Go Temp Service when establishing the seniority date However, this situation was changed when on May 23, 1996, the parties entered into a Memorandum of Agreement, which provided as follows 1 The parties agree that the principles of Article 25 1 (b) shall apply in cases of Go-Temp employees appointed to the classified staff 2 The parties agree that Article 25 l(b) applies to all employees irrespective of date of appointment to the classified service In effect this memorandum now provides for consideration of service with the Go Temp Service, for purposes of calculating the seniority date of an employee who is subsequently appointed to the classified service, in accordance with article 18 l(b) The dispute underlying this grievance is about the calculation of the period of service in the Go Temp Service which is to be taken into account in establishing the seniority date, in circumstances where an employee had absences due to sickness during his/her Go Temp assignments In applying article 18 1 to Go Temp employees, the employer has taken the position that absences due to sickness during a work assignment of a Go Temp employee has the effect of diminishing that employee's accumulation of service for purposes of article 18 1 Moreover, where an employee is absent due to sickness even for a single day, the employer debits that employee's accumulation of Go Temp service by a whole week 5 The employer's contention is that while the Memorandum of Agreement dated May 23, 1996 extended the application of article 18 1 to Go Temp employees, it in no way amended or varied the requirements in 18 1 as it applied to Go Temp employees In other words, a Go Temp employee gets the benefit of article 18 1, only to the extent that he/she is able to meet the requirements of that article The employer points out that what is taken into account under the terms of article 18 1 (b) is "the actual number of full time weeks worked by" a Go Temp employee "Full-time" is defined as "continuous employment as set out in the hours of work schedules for the appropriate classification" Thus, the employer contends that to be considered a "full-time week", the employee must have worked the number of hours specified in the schedule, which could be anywhere from 36-1/4 to 40 hours per week depending on the particular classification (See, s 9 of Reg 977 under the Public Service Act) According to the employer what is added under article 18 l(b) are full-time weeks actually worked Where due to an absence, the hours worked are less than the full-time hours specified for that classification in the schedule, that week cannot be added under article 18 l(b) The employer concedes that it treats an employee joining the classified service from prior unclassified service differently than an employee joining after a period of employment in the unclassified service Thus an absence due to sickness during the period of employment in the unclassified service does not result in the diminishing of the calculation of the period of service The employer argues that this different result for unclassified employees, in contrast to Go Temp employees, floVls from the nature of the rights of the two groups under the collective agreement The employer points out that unclassified employees, under article 31 are 6 entitled to accumulate sick leave credits to be used when sickness prevents them from attending work An unclassified employee using sick leave credits is paid regular wages despite the absence Thus, the argument goes, despite the absence due to sickness, the employee in effect is deemed to have actually worked on the day in question Therefore that absence does not result in the employee working less than full-time hours during the week In contrast, Go Temp employees who do not actually work due to sickness, are not deemed to have worked on those days They are not entitled under the collective agreement to earn any sick leave credits and are not entitled to be paid on days they are absent due to sickness Therefore, when a Go Temp is absent due to sickness even on a single day his weekly hours fall below the full-time level and that week is not eligible for consideration under article 18 l(b) In his opening remarks, union counsel asserted that by penalizing Go Temp employees with regard to their seniority due to absences resulting from sickness, the employer was discriminating on the grounds of "handicap" contrary to the ontario Human Rights Code However, this assertion was not pursued during final argument The union's case therefore focussed on the proper interpretation of article 18 1 (b) as it applies to Go Temp employees Counsel argues that the Memorandum of Agreement dated May 23, 1996, clearly extended the rights under article 18 1 (b) , which hitherto had been only available to unclassified employees, to Go Temp employees In so doing it drew no distinction between unclassified and Go Temp employees In other words, ~ 7 it extended the same rights to Go Temp employees as those previously enjoyed only by unclassified employees Thus, he argues, there is no rationale for the differential treatment of the two groups Counsel stresses the importance of seniority rights Re Tung-Sol of Canada, (1964) , 15 LAC 161 (Reville) Counsel submits that when article 18 1 (b) is applied to Go Temp employees as required by the Memorandum, the result should not be any different than as it applies to unclassified employees In other words, just like unclassified employees, Go Temp employees should not have their service diminished on account of absences due to sickness In the alternative, counsel argues that a Go Temp employee should not be penalized in terms of weeks for absences of less than a week It is quite evident that at the root of this grievance is the union's concern about the perceived unfairness of the differential treatment by the employer, in applying the same provision of the collective agreement, to unclassified employees absent due to sickness and Go Temp employees absent for similar reasons While this feeling of a sense of unfairness is understandable, it is not unusual under collective agreements generally, and under this collective agreement particularly, to accord varying levels of rights and benefits to employees depending on the employment status or category of the employee Under this collective agreement, classified employees have the greatest rights and benefits Unclassified employees have more limited rights Go Temp employees previously had no coverage under the collective agreement In 1994 they were included in the coverage, but with extremely limited rights The great majority of provisions granting benefits are explicitly made inapplicable to Go Temp employees (see article 34 4 ) Therefore, it is quite conceivable that three employees (one classified, one unclassified and one Go Temp) covered 8 by the same agreement, could be working side-by-side performing similar duties, but their respective rights and benefits entitlements would be very different Unfair as it may seem on the face of it, if that is the result of the collective agreement, this Board must apply it as such He Parent, 1207/89 (Knopf) at p 7-8 Therefore this grievance must turn on the proper interpretation of the collective agreement as the Board finds it There is no dispute that a former Go Temp employee, no less than an former unclassified employee, must meet the requirements of article 18 1(b) in order to have their prior service considered in establishing a seniority date Modified as it applies to a Go Temp employee, article 18 1(b) should be read "an employee's length of continuous service shall commence from the date established by adding the actual number of full-time weeks worked by a full-time Go Temp employee during his full-time employment back to the first break in employment which is greater than thirteen (13) weeks " The phrase that requires interpretation for the purpose of determining this grievance is "the actual number of full-time weeks worked" The Board in Re Pitfield et aI, 2564/91 (Verity) had occasion to interpret the predecessor of the present article 18 1(b) at a time when subsection (b) read "from the date on which an employee commences a period of unbroken, full-time service in the public service immediately prior to appointment to the classified service" The union had grieved on behalf of 10 classified Correctional Officers claiming that they should be credited with back service to their first contract in the unclassified serVlce, regardless of the number of hours actually worked in a particular weeJ< At pp 6-8, the Board held 9 The dispute would appear to focus on the meaning of "full-time serVlce in the public serviceH in Article 25 lIb) "Full-timeH is defined later in Article 25 1 as "continuous employment as set out in the hours of work schedules for the appropriate classificationsH These words are not inserted into the clause for ornamental reasons The Union contends that the words "appropriate classificationsH in Article 25 l(b) must have a different meaning from the words "equivalent civil service classificationH in Article 3 3 1 which establishes the wage rate for unclassified staff other than seasonal employees, and in the definition of a seasonal employee contained in Article 3 18 The question is not whether these words are different, but whether there is significance in the difference The significance of the words used in Article 25 1 that "full-time is continuous employment as set out in the hours of work schedules for the appropriate classificationsH simply stated is this there are a number of different work schedules specified in Article 7 for full-time classified employees; for example, Schedule 3 and 3 7 employees who are required to work 36-1/4 hours per week, 7-1/4 hours per day and Schedule 4 and 4 7 employee who work 40 hours per week, 8 hours per day In the instant matter, the "appropriate classificationH referred to in Article 25 1 is that of Correctional Officer 1 in the classified service; namely, a Schedule 4 7 employee who works 40 hours a week, 8 hours a day The aim of Article 25 l(b) of the collective agreement is to equate full-time employment in the unclassified service with the regular hours of work of a classified employee in order to determine length of continuous service It is an equitable concession, we think, to equate full-time unclassified employees, in this case those working 40 hours per week, with full- time classified employees for the purposes of seniority If the parties had intended to include any employee, regardless of hours worked in the unclassified service, they could have said it in a sentence The drafting of a collective agreement involves the drawing of lines In this case, we are of the opinion that, for the purposes of length of continuous service, the line is drawn from the date that an employee "commences a period of unbroken, full-time serVlce in the public service, immediately prior to appointment to the Classified ServiceH Unfortunately for the representative grievor, he didn't come within the line inasmuch as he worked 32 hours during the weev prior to his appointment to the classified - 10 service, which, of course, does not constitute full- time service To read Article 25 1 (b) otherwise is, in our vi ew I an attempted addition to the collective agreement which is not there (Emphasis added) While the language of article 18 l(b) is different to that of article 25 1 (b) considered in Re Pitfield the Board's observations about the definition of "Full-time" are still valid because that definition remains unchanged Article 18 1 (b) contemplates the addition only of "full-time weeks worked" in order to establish a seniority date The definition of "Full-time" means that a week can be considered "full-time" only where the employee has worked the number of hours specified for the particular classification in the hours of work schedules In a recent decision, the Board in Re Scott et al recognizes, albeit by way of obiter, that an employee must work full-time hours, whether it be 36-1/4 or 40 hours per week, before he or she gets the benefit of that weeks service for purposes of calculating seniority under article 18 1 (b) See p 7) Indeed, it appears that the union in that case did not dispute that Thus at p 17 the Board notes that "The parties agree that "full- time weeks" are weeks in which the employee works full-time hours" Indeed in the present case the union did not argue that Go Temp employees are somehow exempt from the requirement to work full-time hours before a week could be considered "a full-time week" eligible to be added in the calculation of a seniority date under article 18 l(b) The -- 11 argument, on the other hand, focuses on the "differential treatment" of unclassified employees and Go-Temp employees In the Board's view, seen in the context of the whole collective agreement, the different results that flow when article 18 l(b) is applied to unclassified employees and Go Temp employees respectively, as it governs absences due to sickness, are warranted by the language A Go Temp employee does not accumulate sick leave credits and is not paid during an absence due to sickness Therefore, there is no room for deeming, even notionally, that the employee worked on such a day In contrast, unclassified employees are situated differently under the collective agreement They do accumulate sick leave credits and when they use an earned sick credit on a day of absence, they are deemed to be at work and are paid their wages as if they were at work Thus despite an absence due to sickness, the employee's hours for the week do not get reduced below full-time hours The Board concludes that this difference in result on an application of article 18 l(b) is one dictated by the collective agreement and that the employer has not contravened the collective agreement The union's alternate argument, in my opinion, must also fail Article 18 l(b) contemplates the addition of weeks The calculation is to be done in terms of weeks and not of days Only "full-time weeks", i e weeks in which the employee works full-time hours, are to be added Thus where an employee does not work full-time hours In a particular week, either in fact or notionally, that week may not be added in calculating the seniority date under article 18 1 (b) - 12 For all of the foregoing reasons therefore, this grievance is hereby dismissed Dated in Hamilton, Ontario on this 16th day of April, 1997. ~~~~:7~ vi ~- ~ ~/' - f ~ N Diss~naY~-ke l -~ Vice-Chairperson