Loading...
HomeMy WebLinkAbout1999-0561.Barrow et al, Union.00-12-01 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #0561/99 0562/99 OPSEU#99U034 99B629 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Umon Gnevance/Barrow et al.) Gnevor - and - The Crown m RIght of Ontano (St. Lawrence Parks CommIsSIOn) Employer BEFORE RandI H. Abramsk" V Ice Chair FOR THE Ed Holmes, Counsel GRlEVOR Ryder Wnght, BlaIr & Doyle FOR THE Kelh Burke EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING November 29 1999 March 23-24 2000 m Kmgston, Ma, 3 2000 m Toronto August 15 2000 m Kmgston, October 19 2000 m Toronto 1 AWARD ThIs matter mvolves the mdIvIdual grIevances of thIrteen students employed by St. Lawrence Parks CommIssIon at ItS Fort Henry facIhty who allege that they "are not bemg paid at the proper rate", as well as a Umon pohcy grIevance whIch asserts that "the Employer IS vIOlatmg the collectIve agreement by mIsapphcatIOn of wage rates to students employed WIthm ItS JUrISdIctIOn," Facts AppendIx 12 of the 1994-98 collectIve agreement provIded, among other thmgs, that the partIes would form a subcommIttee to "[r]evIew the rates proVIded to bargammg umt students m all mmIstrIeS and m all programs operated and dehvered by the OntarIo Government" and "[r]ecommend government-Wide rates for students," Under ArtIcle 33 5 of the 1994-98 collectIve agreement, wage rates for students were eIther "speCIfied m the schedules for each Bargammg Umt CollectIve Agreement" or, where the rates were not speCIfied, students assIgned to a pOSItIOn were "paid at the eqwvalent rate for the pOSItIOn based upon the 1995 rate of pay for that student pOSItIOn" or, If there was no eqwvalent 1995 rate for a pOSItIOn, the rate was to be set by the mmIstry subject to negotiatIOn With the Umon dUrIng salary negotiatIOns, As stated by Tom Wood, the chIef negotIator for the Umon concernmg student wages, student wages 2 were "all over the map" and there was a desIre by both sIdes to adopt a standardIzed wage rate for students Although the subcommIttee concernmg student wages was estabhshed earher, senous negotiatIOns pursuant to AppendIx 12 dId not take place untIl mId-November 1998 On November 14, 15 and 16, 1998, negotiators for the Government and OPSEU met to dIscuss student wages, At the end of that tIme, the partIes reached a Memorandum of Agreement That agreement was effectIve upon sIgmng for the remammg penod of the 1994-98 collectIve agreement and, after further dISCUSSIOn m the negotiatIOns for a new agreement, was adopted as wrItten mto the new collectIve agreement as AppendIX 12, MEMORANDUM OF AGREEMENT Between MANAGEMENT BOARD OF CABINET (Hereinafter called "the Employer") And THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU) Appendix 12 - Student Wage Rates 1 ThIS Memorandum of Agreement IS based on negotiatIOns held pursuant to AppendIX 12 of the CollectIve Agreement between the partIes, expmng December 31, 1998, and IS subj ect to the defimtIOns, pnncIples and terms set out m the CollectIve Agreement. 3 2, ThIs Memorandum of Agreement Will become effectIve upon bemg sIgned by the partIes As per AppendIx 12 of the CollectIve Agreement, thIS agreement Will be presented to the CERC so that recommendatIOns can be appended mto the CollectIve Agreement and Implemented for the remammg penod of the collectIve agreement. 3 The provIsIons of thIS Memorandum of Agreement Will ensure that student wage rates are standardIzed across the Ontano Pubhc ServIce for those covered by the CollectIve Agreement between the partIes 4 Students m post secondary Co-operatIve Programs Will be paid a percentage of the entry level of the appropnate classIfIcatIOn speCIfied m the CollectIve Agreement, as follows Work Term Percentage 1 60% 2 64 3 68 4 72 5 76 6 80 5 Students m SpeCial Employment Programs shall be paid at the mmImum wage rate of $6 85 per hour 6 Students m the Ontano/Quebec Summer Student Job Exchange Program shall be paid the rate negotIated With OPSEU pnor to negotiatIOns between the Ontano and Quebec Governments (currently $8 25 per hour) 7 Students hIred mto student pOSItIOns shall be paid accordmg to a two level job eval uatIOn system, The framework for thIS system forms AppendIX "A" to thIS agreement. 8 A student hIred mto a pOSItIOn estabhshed m the claSSIfied servIce shall be paid accordmg to the claSSIficatIOn range for that pOSItIOn, For greater clanty, thIS mcludes students backfillmg a claSSIfied pOSItIOn dunng the mcumbent S leave of absence and students fillmg a vacant claSSIfied pOSItIOn for a hmIted duratIOn, 9 ThIS agreement Will represent settlement of any claims and gnevances respectmg student wages rates, save and except the mdIvIdual gnevances currently on file Dated thIS 16h day of November, 1998 AppendIX "A" of AppendIX 12 states as follows 4 Appendix A - Framework for Students Wage Rates 1 ThIs framewrrk Will be submItted to the Jomt System Sub-CommIttee for ItS use m developmg a Student Job EvaluatIOn System for all student posItIOns to present to CERC for agreement m accordance With AppendIX 12 of the CollectIve Agreement expmng on December 31, 1998 2, The pnmary factors underpmnmg the Student Job EvaluatIOn System are CompleXIty, SkIllslKnowledge and SupervIsIon, The Employer shall be gUIded by the factors prescribed by the pay EqUIty Act m the development of the job evaluatIOn system and shall adhere to all legIslatIve reqUIrements, The prOVISIOns Will also recogmze the dIfferent skIll levels reqUIred and types of employment OpportunItIes for students m then employment WIthm the Ontano Pubhc ServIce LEVEL 1 Jobs under classIfIcatIOn Level 1 Will reflect work whIch IS routme and hmIted m compleXIty These jobs may reqUIred addItIOnal supervISIon (e g, tem lead) and do not reqUIre a speCial skIll level. LEVEL 2 Jobs claSSIfied at Level 2 Will mvolve work that IS more vaned and complex m nature The jobs typIcally reqUIre knowledge form a related area of study and an mcreased level of skIlls These jobs reqUIred hmIted supervISIOn as students are reqUIred to work mdependently If the job reqUIres a hcense of certIficate (e,g" first aid certIficate, eqUIpment operator s hcense/certIficate), It IS automatIcally aSSIgned to classIficatIOn level 2 3 Rates for these two levels are Level 1 $685 per hour Level 2 $ 8 50 per hour 4 It IS understood that the job evaluatIOn system and accompanymg pay rates are not arbItrable, pursuant to the Crown Employees CollectIve Bargammg Act. Paragraph 1 of AppendIx 12 states that It "IS subject to the defimnons, pnncIples and terms set out m the CollectIve Agreement." Artde 33 of the collectIve agreement prOVIdes as follows ARTICLE 33 - STUDENT EMPLOYEES 5 33 1 A student IS an unclassIfied employee occupymg a "student posItIOn" dUrIng hIS or her regular school, college or unIversIty vacatIOn perIod, or m an OPS SpeCial Youth and/or Student Employment Program dUrIng hIS or her regular school, college or unIversIty seSSIOn or vacatIOn perIod or occupymg a "co-operatIve educatIOn student posItIOn" under a co-operatIve educatIOn program, 332 A "regular vacatIOn perIod" WIthm the me anmg of a student posItIOn mcludes summer vacation, mter -semester breaks, academIc breaks, December Hohdays, the hohdays m ArtIcle 47 (Hohdays) and a perIod of tIme of SIX (6) months follOWing completIOn of the reqUIrements for graduatIOn from an ed1catIOnal mstItutIOn, 333 A "student pOSItIOn" or "co-operatIve educatIOn student pOSItIOn" IS an unclasSIfied pOSItIOn With terms and condItIOns speCIfically apphcable to students 334 A co-operatIve educatIOnal trammg program WIthm the meanmg of "co-operatIve educatIOn student pOSItIOn" IS a co-operatIve educatIOn trammg program m a college, unIverSIty or other post secondary mstItutIOn, 33.5 WAGE RATES 33 5 1 Student rates m effect on the expIry of the 1994-98 collectIve agreement, as reflected m the Memorandum of Agreement dated November 16, 1998, shall remam m effect for the duratIOn of the new collectIve agreements, save and except students employed at OntarIO Place, who shall, for the years 1999 and 2000, be paid at the same rates as were paid m 1998 336 The follOWing artIcles shall apply to student employees as defined m ArtIcle 33 1 1,2,3,4,22 and 80 No other artIcles shall apply The partIes agreed to present eVIdence concernmg the negotIatmg hIStOry of the Memorandum of Agreement, subject to the Employer S ObjectIOn that such eVIdence was madmIssible Tom Wood, the Umon S chIef negotiator, and Murray Baker, a member of the Umon S bargammg team, testIfied on behalf of the Umon regardmg the negotiatIOns, Nancy FIsher, the Employer S chIef negotiator, testIfied on behalf of the Employer Accordmg to Mr Wood and Mr Baker, there was dISCUSSIon at the bargammg table concernmg the term "student posItIOn," It was the Umon S VIew that If a student was 6 hIred for a posItIOn mcluded m tre collectIve agreement, eIther a clasSIfied or unclasSIfied posItIOn, then the student was entItled to all the rIghts and entItlements of that posItIOn under the collectIve agreement, mcludmg wages The Employer could not, m ItS VIew, place a student n a posItIOn WIthm the bargammg unIt, add the term "student" onto It, and pay student wage rates It was theIr posItIOn that If a student was hIred to perform a Job WIthm the claSSIfied or unclaSSIfied unIt, It was not a "student posItIOn," Only posItIOns not mcluded m the collectIve agreement were "student posItIOns" subject to student rates Mr Murray stated that he explamed, dUrIng bargammg, that the Employer could not Just put the label "student" on a posItIOn m the bargammg unIt and pay them less, He testIfied, as dId Mr Wood, that the Umon negotiators expressed concern regardmg erOSIOn of the bargammg unIt, both as to claSSIfied and unclaSSIfied posItIOns, Mr Murray agreed, on both dIrect and cross-exammatIOn, that the term "student" m the Memorandum of Agreement mcorporates to the defimtIOn of "student" under ArtIcle 33 of the collectIve agreement. He agreed that If a student was hIred mto a "student posItIOn" they must be paid m accordance With Level lor Level 2 and no other rate He also acknowledged that paragraph 8 was "speCIfic to deal With claSSIfied employees, full- tIme or regular part-tIme versus unclasSIfied," He explamed that If someone was hIred as a student, domg a claSSIfied Job or most of It, they should be paid the claSSIfied rate In Mr Murray S VIew, If a student occupied a posItIOn for whIch there was a correspondmg claSSIfied posItIOn, the student was entItled to the claSSIfied rate of pay He acknowledged, however, that the language of paragraph 8 dId not speCIfically state that. He testIfied that the Umon saw claSSIfied pOSItIOns becommg unclaSSIfied ones and theIr 7 concern was that the next step would be changIng unclasSIfied seasonal posItIOns Into student posItIOns Nancy FIsher, the Employer S chIef negotiator, testIfied that the Employer S pnmary obJectIve was to standardIze wage rates for students across the Ontano pubhc servIce Usmg the partIes bargammg proposals, she went through the hIStOry of the negotiatIOns, begmnmg With the Employer s ImtIaI proposal Paragraph 6 of that proposal stated as follows 6, Students hIred mto student posItIOns, l.e, those not covered by the above and those not estabhshed WithIn the claSSIfied or unclaSSIfied servIce, shall be paid mmImum wage (currently $6 85 per hour) She testIfied that thIS provISIon meant that an employee hIred mto a student posItIOn would be paid $6 85 per hour and that It clanfied that by "student posItIOn" the Employer was not talkmg about co-op students, students n speCial programs, Quebec exchange students "or claSSIfied posItIOns posted on a temporary baSIS for whIch a student Just happens to be hIred mto that posItIOn," She stated that "students hIred mto student posItIOns" meant a "body of work IdentIfied as SUItable for student employment by a mImstry, With a recrUItment effort aimed at students," Conversely, If a student was hued for a posted, temporary claSSIfied posItIOn, they would be paid the claSSIfied rate The Umon s first proposal, at paragraphs 5 and 6, proVIded, 5 Students hIred mto student posItIOns, l.e, those not covered by the above and those not estabhshed WIthm the collectIve agreement, shall be paid mmImum wage plus $1 55 per hours, but shall not be less than $8 40 per hour 8 6, Stude nts employed In pOSI tI ons/ cl as sIf'i catIOns IdentIfied m the collectIve agreement shall be paid at the rate for that pOSI tIOn/ classIf'i catIOn, Ms, FIsher testIfied that the Umon stated, at the bargammg table, that thIS language meant that If the pOSItIOn had a pOSItIOn tItle/claSSIficatIOn m the collectIve agreement, It would not be covered by the student wage prOVISIon, She stated that the Employer dId not agree to that language Management S next proposal ConcernIng thIS Issue was as follows 7 Students hued mto student pOSItIOns (1.e those not covered by the above and those not estabhshed WIthm the clasSIfied or unclaSSIfied servIce) shall be paid accordmg to the folloWing claSSIficatIOn system accordmg to a "best fit" determmatIOn Factor ClaSSIficatIOn Level 1 ClaSSIficatIOn Level 2 (A) ComplexIty hmIted m complexIty substantially more complex: largely routme vaned dutIes (B) Sklllslknowledge no speCIal skIlls/ mcreased level of skIlls/ knowledge knowledge, generally from related studIes (C) SupervISIon addItIOnal supervISIon no addItIOnal supervISIon e g, team lead Note If the Job reqUIres a hcense or certIficate (e g, first aid certIficate, eqUIpment operator S hcense/certIficate) It IS automatIcally aSSIgned to claSSIficatIOn level 2 Wages Level 1 MinImum wage Level 2 T.B.N 7 If a student IS not hIred mto a cooperatIve educatIOn program, a speCIal employment program or a regular student pOSItIOn (as IdentIfied above) but hIred mto a pOSItIOn estabhshed In the claSSIfied servIce, he/she shall be paid WIthm the range for that pOSItIOn, 9 Ms, Fisher testIfied that paragraph 7 meant that If a posItIOn was posted m the clasSIfied servIce then anyone who gets the Job, even If a student, would be paid the clasSIfied rate At that pomt, they would not be conSIdered a student m a "student posItIOn," She explamed that It stems from how the Job IS recrUIted, If the employer IS recrUItmg for a student, the posItIOn IS a student one If It IS recrUItmg for a temporary clasSIfied posItIOn, the posItIOn IS a temporary clasSIfied posItIOn whether It IS filled by a student or not. The Employer S counterproposal deleted the Umon S proposal that "Students employed m posItIOns/classIficatIOns IdentIfied m the collectIve agreement shall be paid at the rate for that posItIOn," The Umon S second proposal also dropped thIS prOVISIon, Instead, It mcluded the followmg: 6, If a student IS not hIred mto a cooperatIve educatIOn program or regular student posItIOn but hIred mto a claSSIficatIOn estabhshed m the claSSIfied servIce, he/she shall be paid WIthm the range for that claSSIficatIOn, The Employer S thIrd proposal was substantially sImIlar to ItS second one It prOVIded that "[s]tudents hIred mto student posItIOns (i,e those not covered by the above and those not estabhshed WIthm the claSSIfied or unclaSSIfied servIce) shall be paid accordmg to a two-step claSSIficatIOns system on a "best fit" baSIS " It further prOVIded, 10 If a student IS not hIred mto a cooperatIve educatIOn program, a speCial employment program or regular student pOSItIOn but IS hIred mto a claSSIficatIOn estabhshed m the claSSIfied servIce, he/she shall be paid WIthm the range for that claSSIficatIOn, The Umon S thIrd proposal stated, m pertment part, as follows 10 7 Students hIred mto student posItIOns shall be paid accordmg to a three level Job evaluatIOn system, The framework for thIS system forms AppendIX "A" to thIS agreement 8, A student hued mto a posItIOn estabhshed m the clasSIfied servIce shall be paid accordmg to the classIficatIOn range for that posItIOn, The thIrd level m the evaluatIOn system prOVIded for wages at "70% of the clasSIfied rate" Ms Fisher testIfied that the Umon explamed thIS level was for a Job posted temporarIly m the clasSIfied servIce whIch a student gets, but for whIch they cannot perform the full dutIes It would allow the manager to underfill the posItIOn With a student and pay them 70% of the claSSIfied rate Ms, FIsher stated that the Umon expressed concern that the dutIes of a claSSIfied posItIOn could be manIpulated If a student apphed so that the posItIOn would no longer be a claSSIfied posItIOn, but a student posItIOn, SO as to pay the lesser rate She testIfied that she responded to the Umon negotiators that It would go agamst government hmng practIces to pay based on who gets the Job It must be based on the pOSTIng partIculars, She stated that If a manager hIres for a claSSIfied posItIOn, whether filled by a student or not, the employer must pay WIthm the claSSIfied range The Employer S fourth proposal mamtamed the two-level evaluatIOn system. It mcluded the folloWing prOVISIons 9 Students hued mto student posItIOns (1.e those not covered by the above and those not estabhshed WIthm the claSSIfied or unclaSSIfied servIce) shall be paid accordmg to a two level Job evaluatIOn system. The framework for hIS system forms AppendIX "A" to thIS agreement. 10 Pay for ClaSSIficatIOn level 1 shall be $6 85 per hour and pay for ClaSSIficatIOn Level 2 shall be $7 85 per hour It IS understood that the 11 Job evaluatIOn system and accompanymg pay rates are not arbItrable, pursuant to the Crown Employees CollectIve Bargammg Act. 11 A student hued mto a pOSItIOn estabhshed m the clasSIfied servIce shall be paid accordmg to thIS classIficatIOn rate for that pOSItIOn, Ms FIsher testIfied that she explamed that If a Job IS posted as eIther a student or temporary clasSIfied Job, It IS paid accordmgly If a student IS hued m a clasSIfied pOSItIOn, they are paid the clasSIfied rate She stated that the Umon agreed With thIS and dropped theIr level three proposal She also testIfied that the Umon S concern that a manager could erode the dutIes of a claSSIfied pOSItIOn or Just pay less because It was filled by a student was further addressed by the Employer by addmg the follOWing words to paragraph 10 "For greater clarIty, thIS mcludes students backfillmg a claSSIfied pOSItIOn dUrIng the mcumbent S leave of absence and students filhng a vacant claSSIfied pOSItIOn for a hmIted duratIOn," ThIS language was adopted m the final Memorandum of Agreement and, m her VIew, It was "all mclusIve" language and that was communIcated to the Umon, Mr Murray and Mr Baker took the OppOSIte VIew - that It was not "all- mclusIve" language Ms Fisher dId not recall the Umon expressmg a concern regardmg eroSIOn of the bargaInmg unIt - only a concem that the employer would pay a lower rate to a claSSIfied pOSItIOn filled by a student. She also dId not recall the Umon expressmg a concern that management could take a seasonal Job, add m brackets the term "student" and then pay the student wage rate She could not, however, refute theIr testImony that these concerns were raised On cross-exammatIOn, Ms, Fisher agreed that the Memorandum of Agreement mcorporated the term "student pOSItIOn" as defined m ArtIcle 33 and that a student must 12 be on a "regular vacatIOn penod" as defined m that prOVISIon, She agreed that If the student had retumed to school and contmued to work dUrIng the school year, they would not fit the defimtIOn of a student under ArtIcle 33, although It was mdIvIdual to the employee and exceptIOns applIed, She further testIfied that It was not the work performed that mattered but how the posItIOn was posted and recrwted, In her VIew, If a posItIOn had been a seasonal Job for the past five years and a manager deCIded to post It as a student posItIOn, he could do that. The pOSItIOn would then be a student pOSItIOn, She testIfied that a seasonal employee and student employee may perform the same dutIes, day m and day out, With the seasonal employee receIvmg the claSSIfied rate under ArtIcle 32 and the student receIvmg the approprIate student wage under AppendIX 12 In her VIew, It all depended on what Job was posted, not who was hIred, Nor, m her VieW, was It relevant If the actual dutIes dIffered from the posted ones, Mr PIerre Pmet, Human Resources Consultant at furt Henry, also testIfied on cross-exammatIOn that the dutIes and responsibIlIties of a seasonal and student employee could be IdentIcal. He agreed that the Employer could reduce the number of seasonal employees performmg a Job whIle retammg the stude nts performmg the same work. In hIS VIew, moreover, the dutIes of a student could go beyond those set out m the pOSItIOn speCIficatIOn because of the mclusIOn of the words "other dutIes as assIgned," As he explamed, If a student knows how to operate a cham saw, the employer may ask the student to use one even though use of a cham saw IS speCIfically hsted m the seasonal manual worker pOSItIOn speCIficatIOn but IS not hsted m the student one 13 There was almost no testImony concemmg the meanmg of paragraph 4 of AppendIx A whIch states "It IS understood that the Job evaluatIOn system and accompanymg pay rates are not arbItrable, pursuant to the Crown Employees CollectIve Bargammg Act." The only testImony was from Mr Murray who stated that the "rates are not arbItrable" The Umon presented the testImony of four students whIch the partIes agreed would be representatIve of the other gnevors m the same pOSItIOns Each SIgned an "Appomtment To Staff' contract hstmg the "Group Type" as "Student" and settmg forth theIr "Student Level" as 1 or 2, With the rate of pay of eIther $6 75 or $8 50 per hour In the "Remarks" sectIOn, each mcluded the words "Regular Student - Vanable Hours per day to a max, of 3625 per week." The "benefits enrollment" sectIOn m each student contract was left blank. 1 Peter Moyse, Peter was hIred as a student Manual Worker at Fort Henry, at student level 2, $8 50 per hour He was a second year student at St. Lawrence College He began work at Fort Henry m May 1999 and worked untIl the end of August. He was shown the pOSItIOn speCIficatIOn for the seasonal pOSItIOn of Manual Worker and testIfied that he, as well as hIS fellow student Manual Workers, performed all of the same dutIes With the exceptIOn of operatmg a snow blower and cleanng snow He also dId not use a chamsaw, but another student dId, The students, he testIfied, worked sIde-by-sIde and performed the 14 same dutIes as the seasonal Manual Worker They also worked 36 25 hours per week. In terms of supervISIon, he testIfied that "99%" of the tIme, they worked on theIr own, 2, Ryan DZIermelko Ryan was also hIred as a student Manual Worker at Fort Henry, receIvmg $8 50 per hour He was hued m early May 1999, worked throughout the summer, and then m weekends untIl the end of September or early October It IS unclear m the record where he attended school or hIS status as of the Fall. He testIfied that the SIX student Manual Workers and the seasonal Manual Worker performed "baSIcally IdentIcal" work and all worked together He was shown the seasonal Manual Worker pOSItIOn speCIficatIOn and stated that he performed most of those dutIes In terms of supervIsIon, he testIfied that there was "not much at all" generally and on weekends, no supervIsors were present. He estImated that "90 to 95%" of the tIme, he and the other manual workers worked mdependently 3 Laune Miller Laune worked at Fort Henry durmg the summers of 1998 and 1999 as a student AdmISSIons Sales & ServIce RepresentatIve In 1999, she was a fourth year student at Queen s UmversIty, and was plannmg to contmue her studIes there She contmued workmg at the Fort, on weekends, throughout September She was paid at the rate of $6 85 per hour, both pnor to and after Labour Day Her hours were "vanable to 36" but she always receIved her full hours She receIved "very, very httle" supervIsIon, 15 Laune testIfied that the posItIOn specIfIcatIOn for her posItIOn hsted some, but not all, of the dutIes she was reqUIred to perform. She testIfied that the dutIes she performed were IdentIcal to that performed by the other students as well as a seasonal employee 4 Brooke Bradlev Brooke testIfied that 1999 was the fifth summer that she had worked at Fort Henry She had held vanous pOSItIOns, mcludmg Sales Clerk, SWItchboard/ReceptIon and ReservatIOns ASSIstant. In 1999, she worked as a ReservatIOns ASSIstant, reCeIVIng $6 85 per hour and her Job, m her VIew, was a lot more than what was hsted m the pOSItIOn speCIficatIOn, A number of her dutIes were the same as those performed by seasonal employees, although some were dIfferent as well. She began m February 1999 and worked untIl the end of August. At the tIme, she was a student. She testIfied that she was not supervIsed on a regular baSIS although she dId have a supervIsor and If a questIOn arose, she would go to her for dIrectIOn, The pOSItIOn speCIficatIOns for all student pOSItIOns at Fort Henry were reVIsed m 1999 and evaluated pursuant to the two level system set out m AppendIX "A" of AppendIX 12 The pOSItIOn speCIficatIOn for the student Manual Worker pOSItIOn, student level 1, superseded the pOSItIOn tItle of Manual Worker In the class tItle of Manual Worker and tItle code of 18608 SImIlarly, the pOSItIOn speCIficatIOn for the student Manual Worker, student level 2, superseded the Manual Worker 18608 pOSItIOn, In the 1994-98 collectIve agreement, there were two wage prOVISIOns for a student "Manual Worker" One for tItle code 18608 whIch apphed to "employees With an appomtment 16 status of clasSIfied, unclasSIfied and student" the other for Manual Worker, class code GT506 for "employees With an appomtment status of student and GO Temp" Accordmg to Mr PIerre Pmet, Human Resources Consultant at Fort Henry, no student Manual Worker had ever been claSSIfied as a Manual Worker GT506 or paid the rate set forth for that pOSITIOn, $1205 per hour In the 1999-2001 collectIve agreement, the pOSItIOn of Manual Worker 18608 apphes to "employees With an appomtment status of claSSIfied and unclasSIfied," The words "and student" from the 1994-98 agreement were dropped, SImIlarly, m the new collectIve agreement, the pOSItIOn of Manual Worker GT506 apphes only "to employees With an appomtment status of GO Temp" The new pOSItIOn speCIficatIOns for the student Manual Worker pOSItIOns were effeCTIve May 7, 1999 for the student level 1 pOSItIOn and May 3, 1999 for the student level 2 pOSItIOn, although neIther was SIgned off by the General Manager untIl September 1, 1999 The pOSItIOn speCIficatIOn for the student Retail Sales RepresentatIve, a student level 1 pOSItIOn, was effectIve January 1, 1999 but not SIgned by the General Manager untIl September 1, 1999 It superseded the pOSItIOn of Retail Sales RepresentatIve m the class tItle MerchandIser 2, SImIlarly, the pOSItIOn of student AdmISSIon Sales and ServIce RepresentatIve, a student level 1 pOSItIOn, superseded the pOSItIOn of AdmISSIOn Sales and ServIce RepresentatIve m the class tItle MerchandIser 2 In the 1999-2001 collectIve agreement, the claSSIficatIOn MerchandIser 2, U0130, apphes to 17 "classIfi catIOns m the unclassIfied servIce, for whIch there are no eqUIvalent classIfIcatIOns m the CIvIl ServIce " For the pOSItIOn of Fort Henry Guards, both seasonal, Group 3 pOSItIOns under the Public SenJice Act, and student pOSItIOns, Group 1 under the Public SenJice Act, were created m 1999, although students filled all of the pOSItIOns The pOSItIOn speCIficatIOns for Mihtary Interpreter 4, Mihtary Interpreter 5 and Mihtary Interpreter 6 superseded pOSItIOns of the same tItle under class tItle Ammator 4, Ammator 5 and Ammator 6, all With class code U0070 Under the 1994-98 collectIve agreement, the pOSItIOn of Fort Henry Guard, U0070, was for "employees With an appomtment status of unclaSSIfied and student" In the 1999-2001 collectIve agreement, the pOSItIOn of Fort Henry Guard, U0070, was for "employees With an appomtment status of unclaSSIfied" The rates, effectIve 01/01/99 were $ 821, $878, $905 and $10 90 The eVIdence showed, however, that one employee, the Captam of the Guard, was paid at $1090, five were paid at $905 (plus one at $896 whIch, accordmg to Mr Pmet, was a typo), and four employees were paid the rate of $10 31, a rate whIch does not appear m the collectIve agreement. Accordmg to Mr Pmet thIS was done so as to retam the students who had worked the pnor years m order to tram the newer employees None of the gnevors were from among thIS group The remamder of the Fort Henry Guards were employed at student level 2 TheIr pOSItIOn speCIficatIOns, effectIve January 1, 1999, hsted the pOSItIOn as MilItary 18 Interpreter 1, 2 or 3, supersedmg the posItIOn With the same Job tItle, m the class tItle of Ammator 1,2 or 3, U0070 There was no posItIOn specIfIcatIOn mtroduced for Ms Bradley S posItIOn, but m her Appomtment to Staff agreement, the box "rate comparable to (enter class tItle)" was hsted as "Office Admm,5" and the "Job class" was "050AD " In the 1999-2001 collectIve agreement, the pOSItIOn Offi ce AdmmIstratIOn 5, 050AD, apphes to "employees With an appomtment status of claSSIfied and unclaSSIfied," Arguments of the Parties A. The Union The Umon contends that because the gnevors occupied posItIOns estabhshed m the collectIve agreement, whether claSSIfied or unclaSSIfied, they dId not occupy a "student pOSItIOn" WIthm the meanmg of ArtIcle 33 or AppendIx 12, Accordmgly, smce they were paid a student wage rate, It asserts that they were paid Improperly Instead, It contends that they should have been paid the appropnate claSSIfied/unclasSIfied rate The Umon submIts that the negotIatmg hIStOry whIch led to the Memorandum of Agreement, AppendIX 12, clearly demonstrates that pOSItIOns estabhshed WIthm the claSSIfied or unclaSSIfied servIce were not to be conSIdered "student posItIOns" It submIts that such eVIdence should be admIssible m thIS case because the term "student pOSITIOn" IS ambIguous and the eVIdence Will aSSIst m mterpretmg that ambIgUIty It IS also admIssible, the Umon asserts, because the eVIdence IS useful m terms of mterpretmg 19 the collectIve agreement as a whole Finally, It asserts that the eVIdence IS admIssIble at the dIscretIOn of the Board, In suppm: of ItS contentIOns, the Umon cItes to Lietch Gold Mines Ltd. et al v Texas Gulf Sulphur Co Inc et al. [1969] 1 Q,R. 469 (High Ct. JustIce) The Umon argues that the term "student posItIOn" IS both patently and latently ambIguous, It pomts out that under ArtIcle 33 1, a "student IS an unclasSIfied employee occupymg a student posItIOn dunng hIS or her regular school, college or unIverSIty vacatIOn penod," It submIts that thIS defimtIOn IS CIrcular and unclear Nor, m ItS VIew, IS thIS uncertamly clanfied by ArtIcle 33 3, whIch states that a "student posItIOn" IS an unclasSIfied posItIOn With terms and condItIOns speCIfically apphcable to students" It does not assIst, It contends, because what IS meant by "terms and condItIOns speCIfically apphcable to students" IS Itself unclear The Umon contends that "terms and condItIOns of employment" IS a very broad concept and mcludes what employees do on a day-to-day baSIS, In support of thIS posItIOn, the Umon cItes to Re Borough of Scarborough and Scarborough Firefighters Association, Local 626 I.A,F.F et al. [1979] 26 Q,R. (2d) 298 (DIV Ct.) and Re Liquor Contol Board of Ontario et al and Ontario Liquor Board Employees Union et al. [1980] 29 Q,R. (2d) 705 (DIV Ct.) GIven the students eVIdence that they perform IdentIcal work to seasonal employees, It submIts that theIr "terms and condItIOns of employment" are not "speCIfically apphcable to students" WIthm the meanmg of ArtIcle 33 3 20 The Umon also submIts that the term "regular vacatIOn penod" IS ambIguous, partIcularly as It has been apphed, It notes that Ms FIsher acknowledged that a student workmg outSIde of theIr "regular vacatIOn penod" would not meet the defimtIOn of student, yet a number of the students who testIfied stated that they worked m September and October or as early as February The Umon argues that there IS suffiCIent ambIgUIty concernmg the term "student pOSItIOn", both patent and latent, to allow the eVIdence concernmg negotIatmg hIStOry mto the record and to rely on It m mterpretmg what was meant by the term, The negotIatmg hIStOry, It argues, demonstrates that the defimtIOn of "student pOSItIOn" supphed by the Employer dunng negotiatIOns IS the proper meanmg of the term, It submIts that throughout the negotiatIOns, the Employer defined "student pOSItIOn" as "1. e those not covered by the above and those not estab fished 11 ithin the class~fied or unclass~fied sen1ice" (emphasIs added) Based on thIS defimtIOn, whIch It asserts was accepted by both SIdes, the Umon argues where a pOSItIOn IS estabhshed m the claSSIfied or unclaSSIfied servIce, It cannot be a "student pOSItIOn" subJect to AppendIX 12 It contends that all of the gnevors "pOSI tIOns" - Manual Worker, MerchandIser 2, Office AdmmIstratIOn 5, Ammator - were "estabhshed Wlthm the claSSIfied or unclaSSIfied servIce" and thus were not, and could not be, "student pOSItIOns, " It submIts that based on thIS defimtIOn, It IS the Job tItle or pOSItIOn whIch govems and the fact that a student filled the pOSItIOn IS lITelevant. 21 The negotIatmg hIstOry, It argues, also demonstrates that the Umon s concern about erOSIOn of the bargammg umt was dIscussed and addressed, It argues that the eVIdence of Mr Wood and Mr Baker, who clearly recollect dIscussmg thIS concern With the Employer, should be preferred over the eVIdence of Ms FIsher who could not recall It but could not refute theIr assertIOn, It contends that Mr Wood and Mr Baker both addressed the Umon s concern that the Employer could take a posItIOn estabhshed m the collectIve agreement, slap a label of "student" on It, and then pay the reduced student rate Yet, It submIts that thIS IS precIsely what the Employer dId m thIS case, creatmg the potential for erOSIOn of the bargammg umt. The Umon asserts that the Employer s domg so vIolates the collectIve agreement by Improperly paymg the grIevors the student wage rate mstead of the rate reqUIred for the pOSItIOn m the collectIve agreement. The Umon argues that under the Employer s approach, the rIghts of seasonal employees to recall are put at rIsk. The eVIdence, It submIts, showed that the Employer took the VIew that It has the rIght to deCIde that a pOSItIOn should no longer be a seasonal one but a student Job As long as It was posted as a "student pOSItIOn", a student could be hIred and paid the student rate GIven the sIgmficant dIfference m pay between a seasonal pOSItIOn and student one, and that IdentIcal work performed by the students, the Umon contends that the recall rIghts of seasonal employees Will be undermmed If the Employer IS allowed to place the label "student" on Jobs estabhshed WIthm the claSSIfied or unclaSSIfied servIce 22 Its submIts that of all the employees m the bargammg umt, students and seasonal employees are clearly the most vulnerable It argues that thIS Employer has, m the past, blatantly Ignored the collectIve agreement as It pertams to student wages by paymg rates that do not appear m the collectIve agreement. It asserts that the Employer takes a "catch me If you can" approach to student wages whIch should not be allowed, In the alternatIve, the Umon asserts that the rates paid to some of the students were Improper under the two level Job evaluatIOn system based on the compleXIty of the work performed and the fact that the students work With httle or no supervISIon, Based on these facts, the Umon submIts that they should be paid at the hIgher, Level 2, student rate It argues that Paragraph 4 of AppendIx A, whIch states that "the Job evaluatIOn system and accompanymg pay rates are not arbItrable, pursuant to the Crown Employees CollectIve Bargammg Act" does not depnve mdIvIdual students from gnevmg the wage rate aSSIgned to them. It also asserts that they are entItled to addItIOnal wages for theIr work while not on a "regular vacatIOn penod," B The Employer The Employer first contends that the gnevances, although phrased m terms of Improper wage rates, are actually dIsgUIsed claSSIficatIOn gnevances over whIch the Board no longer has JurIsdIctIOn, It submIts that the Umon s contentIOn that the gnevors perform all of the same tasks as set out m the pOSItIOn speCIficatIOn of the seasonal employees but are Improperly paid for theIr work, demonstrates that what IS truly at Issue 23 here IS a classIfIcatIOn Issue As such, It contends that the Board has no authonty or JunsdIctIOn over these gnevances The Employer next contends that the gnevances should be dIsmIssed because there IS no vIOlatIOn of the collectIve agreement. It asserts that what the Umon IS seekmg IS to change the student wage rate prOVISIons of the collectIve agreement, somethmg whIch the Board cannot do The Employer contends that the purpose of AppendIX 12 was to standardIze wage rates for students across the Ontano pubhc servIce and that the Memorandum of Agreement accomphshed that goal. Instead of student rates bemg set out m each mdIvIdual bargammg umt, or bemg paid the 1995 rate for the studmt posItIOn, or bemg set by a Mimstry, students hIred mto "student posItIOns" cross the government were to be paid one of two rates based on the cntena set forth m AppendIx A of AppendIx 12 All of the contractual language contamed m the 1994-98 collectIve agreement that led to confUSIOn was removed and what was agreed to was AppendIX 12 In ItS submIssIon, the language of AppendIX 12 IS clear on ItS face and the eVIdence presented concernmg the negotIatmg hIStOry IS madmIssible The Employer asserts that there IS no patent or latent ambIgUIty m relatIOn to the term "student posItIOn" or the meanmg of AppendIX 12 and consequently no reason to resort to extnnsIC eVIdence In support of ItS contentIOn, the Employer CItes to OPSEU (Craig Grimes) and Ministl} of Transportation, GSB No 2252/91 et al. (DIssanayake) 24 The Employer further argues that even If the negotIatmg hIstOry IS admItted mto eVIdence, It supports the Employer S posItIOn, The Employer contends that the mterpretatIOn now espoused by the Umon - that students employed m posItIOns/classIfIcatIOns IdentIfied m the collectIve agreement shall be paid at the rate for that posItIOn/classIficatIOn - was dropped by the Umon dUrIng negotiatIOns and does not appear m AppendIx 12 Instead, what was agreed to was paragraph 8, whIch states as follows 8 A student hIred mto a posItIOn estabhshed m the claSSIfied servIce shall be paid accordmg to the claSSIficatIOn range for that posItIOn, For greater clarIty, thIS mcludes students backfillmg a claSSIfied pOSItIOn dUrIng the mcumbent S leave of absence and students fillmg a vacant claSSIfied pOSItIOn for a hmIted duratIOn, ThIS language, the Employer argues, speCIfically hmIts the tImes that students hIred mto a pOSItIOn estabhshed m the claSSIfied servIce IS to be paid the claSSIfied rate It submIts that the language was drafted by the Employer to address the Umon S concerns and was speCIfically stated to be hmIted, It further argues that where the partIes mtended that other matters mIght be mcluded, they used language to that effect such as m ArtIcle 1 2, whIch states "For greater certamty, such employees mclude claSSIfied and unclaSSIfied employees, students, GO Temps and such other employees as may be mutually agreed" (emphasIs added) It asserts that SImIlar, potential expanSIOn language was not mcluded m AppendIx 12, paragraph 8 It also asserts that the Umon had the OppOrtunIty, durmg negotiatIOns, to add further examples to thIS language but dId not. lnstead, the Umon agreed to language as WrItten, 25 The Employer also asserts that negotiatIOns show that the term "student posItIOn" was to be defined by ArtIcle 33, meanmg an unclasSIfied posItIOn With "terms and condItIOns speCIfically apphcable to students" It argues that there IS nothmg unclear about that term. Student pOSItIOns are Group 1 hIres, under the Public Sen1ice Act, With terms set out m theIr mdIVIdual contracts of employment. They must be a student, on a regular vacatIOn perIod, and they may work up to a maXImum of 36 25 hours per week. There IS no guarantee of hours and they cannot work overtIme In contrast, the Employer asserts that seasonal employees have terms and condItIOns set out m the collectIve agreement, m ArtIcle 32, mcludmg recall rIghts and benefits They also, m the Employer S submISSIon, have terms and condItIOns of employment whIch apply only to seasonal employees, LIkeWise, ArtIcle 31 apphes to unclaSSIfied employees other than seasonal, student or GO temp employees, In the Employer s VIew, the Umon IS askmg the Board to rewrIte AppendIX 12 to state that "a student hIred mto a pOSItIOn tItle IdentIcal to a pOSItIOn m the claSSIfied or unclaSSIfied servIce shall be paid per the claSSIficatIOn range of that pOSItIOn," It argues that thIS was not the language agreed to, nor can It reasonably bear that mterpretatIOn, It submIts that wages m the pubhc servIce are not based on tItle Instead, It asserts that It IS the nature of the hmng that determmes the employee s status and whIch terms and condItIOns apply The Employer contends that If a student IS hued mto a "student pOSItIOn", they are governed by ArtIcle 33, regardless of theu pOSItIOn tItle or Job dutIes Conversely, It 26 asserts that f a student IS hIred mto a classIfied posItIOn, then they are a classIfied employee The Employer submIts that each of the gnevors was hued mto a student posItIOn. In support of ItS contentIOn, the Employer cItes OPSEU (McConnell) and Ministl) of Natural Resources, GSB No 587/94 (Dlssanayake) It submIts that It IS for the Employer, pursuant to the management nghts clause, to determme the kmds of posItIOns reqUIred to meet ItS operatIOnal reqUIrements The Employer takes Issue With the Umon s charactenzatIOn of ItS conduct as a "blatant dIsregard" of the collectIve agreement. It submIts that there had been substantial confusIOn regardmg student wage rates and that It was for that reasons that the partIes entered mto negotiatIOns to standardize student wage rates. In ItS VIew, acceptance of the Umon s posItIOn would lead dIrectly back to confusIOn and lack of umformlty m regard to student wages. It asserts that the gnevors were properly paid under AppendIx 12 and the gnevances should re dIsmIssed. Fmally, as the Umon s claim that some of the gnevors should have been paid at the Level 2 rate, rather than at Levell, the Employer submIts that such gnevances are precluded by vIrtue of Paragraph 4 of AppendIx A. 27 Decision A. Is this a classification grievance in disguise? I conclude that the gnevances m thIS matter are not claSSIficatIOn gnevances m dIsgUIse Instead, the mdlvldual and Umon pohcy gnevances raIse a questIOn of mterpretatIOn of AppendIx 12 and whether the gnevors were properly paid as students The eVIdence led by the Umon concernmg the dutIes of the gnevors - that they performed the same dutIes as the seasonal employees - was pnmanly to support one of the Umon S argument of Improper payment, viz. that the students dId not have "terms and condItIOns of employment" apphcable only to students under ArtIcle 33 3 so they cannot, by defimtIOn, be m a "student posItIOn" It does not and dId not change the nature of the claim mto a classIficatIOn gnevance Nor can these gnevances be vIewed as classIficatIOn gnevances because the Umon IS assertmg that the gnevors should be paid the classIfied or unclassIfied rate, rather than the student rate The Umon s posItIOn IS based on an mterpretatIOn of AppendIx 12, not on the posItIOn that the gnevors were Improperly classIfied, and that matter IS clearly arbItrable B Were the grievors improperly paid? The gnevors were all paid at student wage rates, eIther Level 1 or Level 2 Whether or not the gnevors were properly paid depends on the meanmg of AppendIx 12, partIcularly paragraphs 7 and 8 Those prOVISIons state as follows 7 Students hIred mto student posItIOns shall be paid accordmg to a two level Job evaluatIOn system. The framework for thIS system forms AppendIx "A" to thIS agreement. 28 8 A student hued mto a posItIOn estabhshed m the classIfied servIce shall be paid accordmg to the classIficatIOn range for that posItIOn. For greater clanty, thIS mcludes students backfillmg a classIfied posItIOn dunng the mcumbent S leave of absence and students filhng a vacant classIfied posItIOn for a tIme hmlted duratIOn. Under the Umon S mterpretatIOn, the gnevors were not hIred mto "student posItIOns" but were hIred mto posItIOns "estabhshed m the classIfied servIce" and must be paid accordmg to the classIficatIOn range for that posItIOn. Under the Employer S mterpretatIOn, they were hIred mto "student posItIOns" and properly paid a student wage rate. The first questIOn that must be answered IS whether the language of AppendIx 12 IS ambIguous. The general rule IS that where the terms of a collectIve agreement are clear and unambIguous on theIr face, arbItrators should not consIder extnnslc eVIdence m order to decIde the actual mtent of the partIes As set forth m OPSEU (Craig Grimes) and Ministl) of Transportation (1993), GSB No 2662/91 et al (Dlssanayake), at p 8, eVIdence of negotIatmg hIStOry "may only be used by the Board as an aid to mterpretmg the language of he settlement, If the Board finds the language used to be patently or latently ambIguous" It contmued at pp 8-10 Patent ambIgUIty IS where the language used IS on ItS face ambIguous ThIs would be the case where partIcular words or phrases used have dIfferent possible meanmgs. Latent ambIgUIty IS where the language, though clear on ItS face, creates ambIgUIty m apphcatIOn and m practIce In our VIew, for there to be a findmg of latent ambIgUIty m terms of ambIgUIty m apphcatIOn, the party allegmg ambIgUIty must not only 29 estabhsh that the language leads to matIOnal or mconslstent results, but that such matIOnahty and mconslstency was such that It IS reasonable to conclude that the partIes could not possIbly have mtended such rESults Applymg the above-defimtIOns, I conclude that AppendIx 12 IS not patently ambIguous The words "students hIred mto student posItIOns" and "students hued mto classIfied posItIOns" are not ambIguous on theIr face, but mstead, when consIdered n hght of ArtIcle 33 and the collectIve agreement as a whole, they a clear meanmg. Paragraph 1 of AppendIx 12 states that the Memorandum of Agreement IS subJ ect to the "defimtIOns, prmclples and terms set out m the CollectIve Agreement." ArtIcle 33 1 states that "[a] student IS an unclassIfied employee occupymg a student posItIOn dunng hIS or her regular school, college or unIversIty vacatIOn penod. ArtIcle 33 3 states "A student posItIOn IS an unclassIfied posItIOn With terms and condItIOns specIfically apphcable to students" Although the words "terms and condItIOns of employment" are broad and mclude, as the Umon contends, an employee's Job dutIes, there clearly eXIst terms and condItIOns of employment whIch apply only to students. FIrst and foremost, they must be students. In addItIOn, theIr hours of work are vanable, up to a maXImum of 3625 per week. They are not ehglble for overtIme They receIve no benefits, no semonty and no nght to recall as do seasonal employees or other unc lasslfied employees pursuant to ArtIcles 32 and 31 of the collectIve agreement. Thus, although there IS overlap m the terms and condItIOns of student employees and other unclassIfied employees m terms of what they do, a "student m a student posItIOn" IS m "an unclassIfied posItIOn With terms and condItIOns specIfically apphcable to students" Accordmgly, the words "student 30 hIred mto a student posItIOn", when consIdered m hght of ArtIcle 33, IS not ambIguous on ItS face LIkeWise, the words "student hued mto a posItIOn estabhshed m the classIfied servIce " are also not ambIguous Under the collectIve agreement, an employee hIred mto a "posItIOn estabhshed m the classIfied servIce" IS a classIfied employee subJect to all of the nghts set out m the collectIve agreement. A classIfied employee, m the collectIve agreement, IS dlstmgUIshed from unclassIfied employees, students and GO- Temps and enJoys far greater nghts under the agreement. Nor, under the defimtIOn of latent ambIgUIty set forth m OPSEU (Craig Grimes) supra, IS there a latent ambIgUIty I cannot conclude that the language adopted m AppendIx 12 leads not only to an "matIOnal or mconslstent result, but that such matIOnahty and mconslstency was such that IS reasonable to conclude that the partIes could not possibly have mtended such results" Although the Umon dId not argue thIS precIsely, It dId argue that It was unfair that student employees performmg exactly the same Job receIve dIfferent wage rates sImply recause they are students and that students and seasonal employees are the most vulnerable employees m the bargammg unIt. Assummg, for the moment, that It IS matIOnal or at least mconslstent to pay student employees performmg the same work as seasonal or classIfied employees substantIally dIfferent wages, I cannot conclude that the partIes could not have possibly mtended such a result. Ever smce students have been covered by the Crown Employees 31 Collective Bargaining Act, and surely long before that, students have been paid dIfferent and lesser rates than other unclassIfied or classIfied employees. The November 1998 negotiatIOns were to standardIze student wage rates and the rates negotIated were substantially less than the wage rates provIded to classIfied employees and other unclassIfied employees under ArtIcles 31 and 32 The rates negotiated were more than the Employer ongmally wanted to pay but they were far less than the rates paid to other classes of employees Consequently, I cannot cmclude that the partIes "could not possibly have mtended such [a] result." Accordmgly, because the meanmg of "student posItIOns" and "classIfied posItIOns" IS not ambIguous, the eVIdence concernmg bargammg hIStOry should not be admItted. However, even If! am wrong and AppendIx 12 may be consIdered ambIguous, eIther patently or latently, the negotIatmg hIStOry does not aid the Umon. ThIs IS because the mterpretatIOn sought by the Umon was raised dunng the negotiatIOns but was not adopted m the Memorandum of Agreement. In ItS first proposal, the Umon mcluded the folloWing two provIsIons 5 Students hIred mto student posItIOns, l.e those not covered by the above and those not estabhshed WIthm the collectIve agreements, shall be paid mmlmum wage plus $1 55 per hour, but shall not be less than $8 40 per hour 6. Students employed m pOSI tI ons/ classlfi catIons IdentIfied m the collectIve agreement shall be paid at the rate for that pOSI tIOn/ classlfi catIOn. 32 These prOVISIOns, partIcularly paragraph 6, IS precIsely the mterpretatIOn the Umon contends should be gIven to AppendIx 12 If a posItIOn/clasSIficatIOn IS IdentIfied m the collectIve agreement, students employed m those posItIOns/classIficatIOns must be paid the rate for It - not the student rate These provIsIons, however, were not adopted. Instead, the partIes agreed that "[s]tudents hued mto student posItIOns shall be paid accordmg to a two level Job evaluatIOn framework " whIch, through paragraph 1, mcorporates the defimtIOns mcluded m ArtIcle 33 They also agreed to paragraph 8 A student hIred mto a posItIOn estabhshed m the classIfied servIce shall be paid accordmg to the classIficatIOn range for that posItIOn. For greater clanty, thIS mcludes students backfillmg a classIfied posItIOn dunng the mcumbents leave of absence and students filhng a vacant classIfied posItIOn for a hmlted duratIOn. In my VIew, It IS very sIgmficant that the partIes used the words "hIred mto" m both paragraphs 7 and 8 of AppendIx 12 ThIs wordIng mdIcates that It IS the posItIOn for whIch the student IS hued that matters If a student IS "hIred mto" a student posItIOn, they are paid the student rate If they are "hIred mto" a posItIOn estabhshed m the classIfied servIce, they are paid the classIfied rate ThIs language IS qUIte dIfferent than that found m the Umon S mltIaI proposal whIch used the words "students employed m posItIOns/classIficatIOns IdentIfied m the collectIve agreement" That language mdlcates that the determmatlve factor IS whether the posItIOn/classIficatIOn tItle IS one IdentIfied m the collectIve agreement - not the nature of the posItIOn whIch they were "hIred mto " The words "hIred mto" are also consIstent With the partIes approach to wages m the collectIve agreement as a whole and m the pubhc servIce In the collectIve 33 agreement, wages or salary levels apply "to employees With an appomtment status of classIfied or unclassIfied." It IS based on the employee S appomtment status - classIfied or unclassIfied. In the Ontano pubhc servIce, the nghts and entItlements of an employee are based on the status of theIr posItIOn for whIch they are hIred, be It classIfied, unclassIfied, seasonal or student. Thus, a student hIred mto a classIfied posItIOn should receIve the classIfied rate and all apphcable benefits under the collectIve agreement. A student hIred mto a seasonal posItIOn should receIve, pursuant to ArtIcle 32, the classIfied rate and contractual benefits A student hIred mto a student posItIOn IS paid per ArtIcle 33 5 - AppendIx A of AppendIx 12 ConsIstent With thIS approach IS the fact that the words found m the wage provIsIOns m the 1994-1998 collectIve agreement whIch stated that the wage scales "apply to employees With an appomtment status of classIfied, unclassIfied and student' were changed m the new collectIve agreement to delete the words "and student." In addItIOn, the wordmg of paragraph 8 of AppendIx 12 was expanded to mclude the words "[f]or greater clanty, thIS mcludes students backfillmg a classIfied posItIOn dunng the mcumbent S leave of absence and students fillmg a vacant classIfied posItIOn for a hmlted duratIOn." The Umon, dunng negotiatIOns, had the OppOrtunIty to add addItIOnal examples or mclude potentIal expansIOn language but dId not. Further, the mterpretatIOn sought by the Umon would, m effect, change the agreement of the partIes as well as, to a sIgmficant degree, defeat the mtent of the partIes to standardIze student wage rates Instead of paymg students one of two wage rates as set 34 out m AppendIx "A", students hued mto a posItIOn tItle that eXIsts m the classIfied or unclassIfied servIce would be paid the classIfied rate That would, m effect, adopt language, whIch was dropped from the bargammg table It would also be a throw back to the manner m whIch student wage rates were determmed m the pnor collectIve agreement - based on the posItIOn tItle hsted m the collectIve agreement. The partIes, m the new agreement, moved away from that approach and adopted, mstead, a two-level framework m order to standardIze wages for students across the Ontano pubhc servIce In the mstant case, I conclude that the gnevors were students hIred mto "student posItIons" WIthm the meanmg of paragraph 7 of AppendIx 12 and were appropnately paid at student wage rates. They were not hIred mto "posItIOns estabhshed WIthm the classIfied servIce" WIthm the meanmg of paragraph 8 of AppendIx 12 My conclusIOns here are not meant to mmlmlze or tnvIahze the concerns of the Umon regardmg potential erOSIOn of the bargammg unIt. The testImony of Ms FIsher and Mr Pmet was that the employer has the unfettered nght to determme that mstead of employmg ten seasonal manual workers next year and ten student manual workers, It Will hIre five seasonal employees and fifteen student ones. That, m my VIew, would be an erOSIOn of the bargammg unIt as the Umon fears The Employer argued that there IS no hmltatIOn on ItS nght to do thIS smce the Umon could have, but dId not, negotiate language protectmg agamst erOSIOn of the bargammg unIt. I cannot agree Clearly management s nght to act under ArtIcle 2 IS subJect to nghts estabhshed m the collectIve agreement, mcludmg the recall nghts of seasonal employees In hght of the recall nghts 35 of seasonal employees, the Employer would have to have a legItImate, bona fide reason for Its deCIsIon to abohsh seasonal Jobs and replace them With student ones I also have some genume concerns about the Employer s VIew that the dutIes hsted m the posItIOn specIficatIOn are Irrelevant, that students and seasonal employees may perform exactly the same dutIes regardless of the posItIOn specIficatIOn and that the phrase "other duties as assIgned" may be all encompassmg. In my VieW, It IS not proper to hIre a student mto a student posItIOn, With specIfied lesser dutIes and pay, and then assIgn them, m fact, to a more complex and responsible posItIOn. Just hke a postmg, the Employer IS bound to the posItIOn specIficatIOn for whIch the employee IS "hIred mto" and the words "other dutIes as assIgned" cannot be all encompassmg. To allow that would enable the Employer to mampulate a "student posItIOn" m the \\UY the Employer agreed, dunng negotiatIOns, would not happen. Accordmg to Ms. FIsher, the Employer IS bound by ItS postmg. LIkeWise, the Employer IS bound by the "student posItIOn" mto whIch the student IS hIred. The testlmomal eVIdence presented on thIS Issue, however, was not conclusIve Some of the dutIes performed by the students were IdentIcal to those performed by seasonal employees (and the eVIdence was strongest m regard to the manual workers), but some dutIes and responslblhtIes were dIfferent. Fmally, I am also troubled by the Employer s unIlaterally paymg a wage rate for Fort Henry Guards whIch IS not found m the collectIve agreement. That Issue IS not 36 before me, but It does mdIcate, as the Umon argued, a surpnsmg dIsregard of the collectIve agreement. Although I can sympathIze With the Employer s need to retam expenenced staff, It cannot unIlaterally Ignore the negotiated wage rates If the negotiated wage rates create a problem, the matter should be dIscussed With the Umon to determme If a negotiated solutIOn IS possible If not, the Employer must stIll operate WIthm the reqUIrements of the collectIve agreement. C. May students grieve the student rate they are assigned? In the alternatIve, the Umon argues that several of the gnevors, mcludmg Ms. Bradley and Ms Miller, should have been paid at the Level 2 student rate, partIcularly m hght of the complex nature of theIr responsiblhtIes and the mlmmal supervIsIOn exercIsed. It submIts that paragraph 4 of AppendIx A whIch states that "It IS understood that the Job evaluatIOn system and accompanymg pay rates are not arbItrable, pursuant to the Crown Employees CollectIve Bargammg Act" does not mean that mdIVIdual students may not challenge the rate assIgned. Instead, It asserts that It means that the system and the two negotiated rates are not arbItrable The Employer contends that the paragraph 4 means that mdlvldual student employees cannot arbItrate the assIgned rates and, accordmgly, thIS argument must fall. It IS somewhat Iromc that so much negotIatmg hIStOry was proVIded as to the meanmg of AppendIx 12, whIch I conclude IS not ambIguous, and almost no hIStOry was presented concernmg paragraph 4 of AppendIx A whIch I find IS patently ambIguous. It 37 easIly gIves nse to two mterpretatIOns - the one espoused by the Umon and the one espoused by the Employer The only negotIatmg hIstOry on thIS provIsIon was supphed by Mr Murray who testIfied that It meant that the "rates are not arbItrable" whIch I do not find partIcularly helpful. A basIc rule of mterpretatIon of contracts IS that partIes are presumed to have mtended that negotiated provIsIons have some meanmg. Relymg on thIS basIc rule, I conclude that the mterpretatIOn proposed by the Employer IS the appropnate one because It gIves meanmg to paragraph 4 of AppendIx A. The partIes Jomtly negotIated both "the Job eval uatIOn system and the accompanymg pay rates" set forth m AppendIx A. They also agreed that neIther the Job evaluatIOn system nor the pay rates would be subJect to arbItratIOn under CECBA. That prOVISIon can only mean that mdlvldual students cannot arbItrate the rate assIgned. Without such language, students would have the nght to gneve the assIgned rate under ArtIcle 22, one of the few collectIve agreement proVISIons that apply to students It makes sense that gIven the hmlted duratIOn of student posItIOns and the relatIvely small dIfference m the two wage levels, that both sIdes would exclude such matters from arbItratIon. In contrast, the more hmlted mterpretatIOn proposed by the Umon would render the prOVISIon VIrtually meanmgless ThIs IS because havmg Just negotiated the Job evaluatIOn system and the rates, they would not be submlttmg such matters to arbItratIOn. Nor would they reqUIre contractual language to achIeve that end. As a result, no purpose 38 would be served by mcludIng thIS language unless It was meant to preclude mdIvldual gnevances Once agam, however, even If I am wrong, the eVIdence falls short of estabhshmg, on a balance of probablhtIes, that Ms. Bradley or Ms Miller should have been paid at Level 2 Although the work they dId was sIgmficant and responsible work, It IS not clear that It was complex or that they worked Without supervIs Ion. D Work beyond Regular Vacation Periods. The eVIdence suggests that Ms. Miller and Ms Bradley, as well as Mr DzremeJko, worked beyond the "regular vacatIOn penod" I use the term "suggests" because the exact vacatIOn dates of theIr respectIve schools was not m the record. It seems hkely, however, that Queen s Umverslty, attended by Ms Miller, dId not have a "regular vacatIOn penod", as defined m ArtIcle 33 2, m September It also seems hkely that the educatIOnal mstltutIOn attended by Ms Bradley dId not have an on- gomg "regular vacatIOn penod" between February and May, 1999 As noted preVIously, It IS unclear where Mr DzremeJko attended school or hIS status as of the Fall of 1999 Yet they worked and were paid as "students" m "student posItIOns" dunng that tIme By defimtIOn, a "student" IS "an unclassIfied employee occupymg a student posItIOn dunng hIS or her regular school, college or unIversIty vacatIOn penod. " The words "regular vacatIOn penod" are defined m ArtIcle 332 to mclude "summer vacatIOn, mter- semester breaks, academIc breaks, December Hohdays, the hohdays m ArtIcle 47 39 (Hohdays) and a penod of tIme of SIX (6) months folloWing completIOn of the reqUIrements for graduatIOn from an educatIOnal mstltutIOn It does not mcl ude weekends dunng a semester The only students who may work m "student posItIOns" dunng the regular semester are students m "an OPS Special Youth and/or Student Employment Program." OtherWise, a student cannot occupy a "student posItIOn" dunng penods outsIde a "regular vacatIOn penod" ThIs does not mean, however, that the posItIOn automatIcally converts to a seasonal or classIfied posItIon. What It means IS that the partIes Will have to negotiate thIS Issue - theIr status for work outsIde the "regular vacatIOn penod" and the rate of pay E. Other Alleged Violations The Umon alleges that untIl the posItIOn specIficatIOns for the students were revIsed m September 1999, they were workmg under the pnor posItIOn specIficatIOns and should have receIved the rates set forth m the 1994-98 for Fort Henry Guard and for student Manual Worker GT506 Under the specIfic facts of thIS case, I cannot agree The new student rates set out m AppendIx 12 were effectIve ImmedIately upon the sIgnmg of the Memorandum of Agreement on November 16, 1999 They were mcluded, unchanged, m the new collectIve agreement. The new agreement, although not sIgned untIl June 25, 1999, states that the agreement "covers the penod from January 1, 1999 untIl December 31, 2001" and that "the effectIve date of any changes to the term of 40 thIS Central CollectIve Agreement from the preVIOUS Central Agreement, unless otherWise mdlcated, shall be March 27, 1999" The new AppendIx 12 dId not change the pnor agreement, as amended by the November 16, 1999 Memorandum of Agreement. Further, the effectIve date of the revIsed posItIOn specIficatIOns was January 1, 1999 The fact that they dId not receIve final approval untIl September IS melevant. Accordmgly, at all relevant tImes, the gnevors worked under the revIsed student posItIOn specIficatIOns and were not entItled to the rates set out m the 1994-98 collectIve agreement. Conclusion For all of the reasons set forth above, I conclude that the gnevors were "hIred mto student posItIOns" WIthm the meanmg of AppendIx 12 and properly paid. The only exceptIOn to thIS IS for the penods outsIde of the students "regular vacatIOn penod." As to that Issue, the partIes are dIrected to negotIate I slnll remam seIzed. Dated at Toronto, thIS 1st day of December, 2000 , 1-1. i'bnntE1(- RandI Hammer Abramsky, Vice-Chair 41