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Home My WebLink About1998-1741.Bennett.99-05-1 Decision OIYTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OIYTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1ZB TELEPHONEfTELEPHONE (415) 325-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1ZB FACSIMILEfTELECOPIE (415) 325-13g() GSB # 1741/98 OPSEU # 90C039 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ... THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntaTIo PublIc SerVIce Employees Umon (Bennett et al) Grievors - and - The Crown In RIght of OntarIo (MInIstry of the Attorney General) Employer BEFORE WillIam Kaplan VIce-Chair FOR THE Donald K. Eady GRIEVORS GowlIng, Strathy & Henderson Bamsters & SolIcItors FOR THE DavId Strang EMPLOYER Semor Counsel, Legal ServIces Branch Management Board SecretarIat HEARING May 4,1999 2 Introduction On December 7, 1998 a group gnevance was filed on behalf of a number of arhchng students allegmg a breach of ArtIcle 16 l(a) of the Collernve Agreement. That arhcle provIdes Effective January 1, 1994, salary rates in effect December 31, 1993, will be maintained to December 31, 1998 Oassifications with an effective date later than January 1, 1994, shall maintain the salary rate of that date until December 31, 1998 In bnef, the UnIon takes the posItIon that the grIevors are, under a proper mterpretatIon of thIS provIsIOn, entItled to be paId at a hIgher salary rate than IS currently the case. For its part, the employer takes the posItIon that the gnevance should be dIsmissed on the basIs that thIS very Issue was earlIer gneved and resolved by Mmutes of Settlement. When the case proceeded to a heanng m Toronto the submIssIOns were, by agreement of counsel, lImIted to thIS prelImmary Issue. The Employer's Case As noted above, the employer takes the posItion that the matter complamed about, namely the rate of pay for arhclmg students, was earlIer gneved and resolved by Mmutes of Settlement In that regard, employer counsel revIewed some of the background to thIS case begmrung WIth the agreement, on April 28, 1995, to move the artIclmg students from the AMAPCEO bargammg urut to the OPSEU bargamlllg unIt. Under thIS agreement, the artIclmg students condItIons of employment, m partIcular wages, remamed the same An order-m-counol, however, was subsequently passed WIth an effectIve date of May 8, 1995 TIllS order-m-councIl prOVIded for a pay rate whIch was m excess of the amount already m effect. From management's pomt of VIew, the pay rate, whIch mcluded a salary range, was nothmg more than a "dummy class code," establIshed for admInIstratIve ease m the payroll system because the entry level salary was close to the eXIshng rate. \.. In any event, some arhclmg students, learned about the order-m-councIl and took the pOSITIOn, through the filmg of gnevances, that they should receIve payment m . 3 accordance WIth the order-In-councll. Gnevances to that effect were filed In September 1995 That thIS was a matter In dIspute between the partIes, employer counsel observed, was made perfectly clear In an OLRB decIsIon, filed WIth the Board, dated December 19, 1995 In that deasIOn the OLRB made some Important observatIons Articling students are part of the unclassified service under the Public Service M due to the temporary nature of their employment. Assigning the AGA 14 class to articling students was, according to the Crown, a "dummy class code, essentially for payroll purposes. Further, the duties and responsibilities of positions falling within the AGA 14 class code do not reflect the duties and responsibilities of articling students. In the aftermath of thIS OLRB proceedIng, the parnes entered Into negotIatIons WIth a VIew to resolvIng the outstandIng gnevances On August 9, 1996, Minutes of Settlement were entered mto As IS customary, the Mmutes of Settlement provIded that they were WIthout prejUdICe or precedent. The Minutes of Settlement also provIded for a cash settlement for the gnevors, and further contaIned the follOWIng statement: The parties have discussed and are agreed that the rate of pay for the classification of Articling Student, effective May 8, 1995, shall be $717.92 per week and will be so reflected in the Salary Schedule of the Administrative Bargaining Unit Collective Agreement. In the meantIme, OPSEU had engaged m a legal strike whIch was eventually settled when the parnes achIeved a collectIve agreement, whIch was put Into effect by way of order-In-councll dated August 14, 1996 That collectIve agreement provIded for artIclmg students to be paId at the rate of $717.92 per week. In all of these arcwnstances, employer counsel argued, the matter between the parnes could not proceed for a nwnber of reasons. Frrst, the very Issue In dIspute had been resolved by the express terms of Minutes of Settlement. The partIes must, counsel noted, be able to rely on theu settlements beIng gIVen effect. ThIS settlement was clear and to the pOInt, and should, In management's VIew, lead to the grIevance beIng 4 dIsmIssed. AlternaTIvely, the employer took the pOSItIon that eIther or both of the doctnnes of res JudIcata or Issue estoppel applIed, and hkewIse led to the conclusIOn that the grIevance should be dIsmIssed. Moreover, and resolvll1g any doubt about the proper mSpOSItIon of thIs case was seCTIon 29(3) of the Publzc ServIce Act whIch provIdes. "Any provIsIOn 111 a collechve agreement that IS 111 COnflIct wIth a provIsIOn of a regulaTIon as It effects the employees of a bargall1mg urut covered by the collectIve agreement prevaus over the provIsIOn of the regulatIon." Not only dId the MInutes of Settlement resolvIng the earlIer gnevance set out the agreed-upon salary rate, so too, counsel observed, dId the colleCTIve agreement. For all of these reasons, the ern pI oyer asked that the grIevance be msmIssed. ... The Umon's Case The uruon dId not take Issue WIth the fact that certaIn matters had earlIer been resolved by MInutes of Settlement. In the uruon's VIew, however, those Minutes of Settlement dId not resolve the matter now before me whIch was whether the May 1995 order-m-councu had been, or should have been, mcorporated Into the colleCTIve agreement. Referrmg to some of the exhibIts, the unIOn took the positIon that the matter resolved by the MInutes of Settlement had to do WIth the downward readJusbnent of the salarIes of artIclll1g students employed at the Court of Appeal, not WIth whether the students were bell1g paId the appropnate rate of pay as per the order-ll1-council. It was also noteworthy, 111 the unIOn's submISSIOn, that the Mmutes of Settlement were WIthOUt prejUdICe or precedent. What that meant, counsel argued, was that they could not be relIed on 111 thIS case to prevent a gnevance about the appropnate pay rate from proceedll1g It made sense that the rate set out 111 the order-ll1-councu be applIed for, as the attachment to the ll1stant gnevance made clear, It was necessary 111 order to mall1tall1 compeTITIveness WIth the rates pay prOVIded to artIclll1g students 111 the pnvate sector For all of these reasons, and others, uruon counsel urged me to take JurIsdIchon WIth respect to thIS grIevance and schedule a heanng on the ments. 5 Decision Havmg carefully consIdered the submIssIons of the partIes, I am of the VIew that the employer's prelImmary objectIon must be allowed and the gnevance dlsilllssed In my VIew, the eVIdence makes It qUIte clear that the May 1995 order-m-council provldmg for a salary range was passed as a matter of adnurnstratIve convernence not to provIde major salary mcreases for artIclmg students Whatever the motIvatIon, however, what matters now is the fact that gnevances about the salary rate were filed and one of the speCIfic terms of the Mmutes of Settlement resolvmg those gnevances was a speCIfic acknowledgement by the partIes about the appropnate rate of pay effectIve, SIgnIficantly, to the very same effectIve date of the May 1995 order-m-council Any doubt about that rate - although It IS hard to see any baSIS for doubt - was resolved by the collectIve agreement whIch subsequently came mto force Very sunply, the very Issue now before me was the subject of a gnevance, Minutes of Settlement, and a further collectIve agreement. The partIes have agreed what the rate of pay should be, that rate IS set out m the collectIve agreement, and by VIrtue of the prOVIsIOn of the Publlc Sermce Act CIted above, that collectIve agreement trumps any order-m-council even assummg for the sake of argument that there was an order-m-council of relevance to thIS matter Settlements between the partIes must be gIven effect and, m any event, as a matter of law, the very Issue havmg been determmed - and It IS worth stressmg that the gnevance m thIS case, like the earlIer one, seeks exactly the same thmg, namely the salary range - thIS grIevance cannot proceed. While It IS true enough that the Mmutes of Settlement were WIthout prejUdICe or precedent, that does not mean that one party to a settlement can rely on that to CIrcumvent the clear and unambIguous terms of theIr Minutes of Settlement. Accordmgly, and for the foregomg reasons, the employer's prelunmary motIon IS granted and the gnevance IS dIsmIssed 6 DATED at Toronto tills II th day of May, 1999 V/~ WillIam Kaplan V Ice-ChaIT' ... \.