HomeMy WebLinkAbout2004-0310.Herries et al.06-05-29 Decision
Crown Employees Commission de Nj
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2004-0310 2004-0903 2004-2186 2005-3009
UNION# 2004-0313-0005 2004-0212-0001 2004-0212-0004 2004-0313-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(HerrIes et al ) Union
- and -
The Crown In RIght of Ontano
(Mimstry of Natural Resources) Employer
BEFORE Jamce Johnston Vice-Chair
FOR THE UNION Mark Barclay
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Jamce Campbell
Counsel
Mimstry of Government ServIces
HEARING May 17 2006
2
DeCISIon
ThIS deCISIOn deals wIth gnevances filed on behalf of four IndIVIduals All four
gnevances are sImIlarly worded and allege a vIOlatIOn of ArtIcle 8 of the CollectIve Agreement.
The dIspute concerns the manner In whIch the rate of pay to whIch the gnevors were entItled
dunng theIr respectIve temporary placements should be calculated.
The partIes agree that when the IndIVIduals commenced theIr temporary assIgnments,
they properly receIved the Increase they were entItled to under ArtIcle 8 1 1 of the collectIve
agreement. That provIsIOn states
Where an employee IS assIgned temporanly to perform the dutIes of a posItIOn In
a classIficatIOn WIth a hIgher salary maXImum for a penod In excess of five (5)
consecutIve workIng days, he or she shall be paid actIng pay from the day he or
she commenced to perform the dutIes of the hIgher classIficatIOn In accordance
wIth the next hIgher rate In the hIgher classIficatIOn, provIded that where such a
change results In an Increase ofless than three percent (3%) he or she shall
receIve the next hIgher salary rate agaIn.
At the heanng scheduled to deal wIth thIS matter the partIes agreed that It was to be dealt
wIth pursuant to the expedIted arbItratIOn process set out In ArtIcle 22 of the CollectIve
Agreement. That process provIdes In part
22 16 1 Except for gnevances concermng dIsmIssal, sexual harassment, and/or
human nghts, and Umon gnevances wIth corporate polIcy ImplIcatIOns, all
gnevances shall proceed through the GSB to a sIngle mediator/arbItrator for the
purpose of resolvIng the gnevance In an expedItIOus and Informal manner
22 16.2 The medIator/arbItrator shall endeavour to assIst the partIes to settle the
gnevance by medIatIOn. If the partIes are unable to settle the gnevance by
medIatIOn, the medIator/arbItrator shall determIne the gnevance by arbItratIOn.
When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt
the nature and extent of the eVIdence and may Impose such condItIOns as he or she
consIders appropnate The medIator/arbItrator shall gIve a SUCCInct decIsIOn
wIthIn five (5) days after completIng proceedIngs, unless the partIes agree
otherwIse
3
22 16 7 DecIsIOns reached through the medIatIOn/arbItratIOn process shall have no
precedentIal value unless the partIes agree otherwIse
The partIes provIded me wIth an agreed Statement of Facts It reads as follows
1 The statements below related to the facts of the folloWIng gnevances 1) Dan
Hemes (GSB #2004-0310 OPSEU # 2004-0313-0005) Nelson Denyes (GSB #
2004-0903 OPSEU # 2004-0212-0001) RIchard DupUIs (GSB # 2004-2186
OPSEU # 2004-0212-0004) and Randy Brooks (GSB # 2005-3009 OPSEU #
2004-0313-0013)
Herries/Brooks
2 In 2003 Hernes and Brooks were In the posItIOn of ConservatIOn Officer and
classIfied as a Resource TechmcIan 4 - ConservatIOn Officer
3 Both Hernes and Brooks were at the maXImum of the Resource TechmcIan 4 -
ConservatIOn Officer classIficatIOn at the rate of $27 81/hour The Resource
TechmcIan - ConservatIOn Officer 4 classIficatIOn IS In Schedule 4-7 Under
ArtIcle UN2 the normal hours of work for posItIOns In Schedule 4-7 IS 40
hours/week, 8 hours/day Both Hernes and Brooks pnor to October 6 2003 were
paid for a normal week, $1 11240
4 EffectIve October 6 2003 Hernes and Brooks accepted actIng assIgnments In
the posItIOn of Agncultural InvestIgator classIfied at the ExecutIve Officer 2 level
The ExecutIve Officer 2 classIficatIOn IS In Schedule 6 Under UN 23 employees
In Schedule 6 are paid on a weekly basIs, and the mImmum hours of work for
employees In Schedule 6 IS 36-1/4 hours per week.
5 EffectIve October 6 2003 the Temporary AssIgnment rules set out In ArtIcle
8 1 1 were applIed [$1 11240 x 3% = $1 145 77] and Hernes and Brooks moved
to the 4th Step In the ExecutIve Officer 2 classIficatIOn and were paid at the rate of
$1 14696/ week.
6 EffectIve January 1 2004 all OPSEU classIficatIOns receIved an across the
board Increase of 2 5% As the regular hours of work for the posItIOn In the
ExecutIve Officer 2 classIficatIOn IS based on a weekly rate, the 2 5% IS added to
the weekly rate as set out In the collectIve agreement, and effectIve January 1
2004 Hemes and Brooks were paid $1 17563 (4th Step ofE02 ClaSSIficatIOn)
7 EffectIve Apnl 1 2004 Hemes and Brooks returned to theIr home posItIOn of
ConservatIOn Officer classIfied as Resource TechmcIan 4 - ConservatIOn Officer
and were paid at the 2004 rate for the Resource TechmcIan 4 - ConservatIOn
Officer classIficatIOn, $28 78/hour
4
8 Hemes and Brooks gneve that theIr temporary assIgnment pay should have
been recalculated effectIve January 1 2004 and argue that due to the across the
board Increase, they were reCeIVIng a less than 3% Increase effectIve January 1
2004
9 The Employer maIntaInS that Hernes and Brooks receIved theIr Increase In
accordance wIth ArtIcle 8 of the collectIve agreement and MGS compensatIOn
polIcIes
Denyes
10 In 2003 Denyes was In the posItIOn of ConservatIOn Officer and classIfied as a
Resource TechmcIan 4 - ConservatIOn Officer
11 Denyes was at the maXImum of the Resource TechmcIan 4 - ConservatIOn
Officer classIficatIOn at the rate of $27 81 / hour The Resource TechmcIan -
ConservatIOn Officer 4 classIficatIOn IS In Schedule 4-7 Under ArtIcle UN2 the
normal hours of work for posItIOns In Schedule 4-7 In 40 hours/week, 8
hours/day Denyes pnor to February 2003 was paid $1 11240 for a normal week.
12 EffectIve February 2,2003 Denyes accepted an actIng assIgnment In the
posItIOn of Agncultural InvestIgator classIfied at the ExecutIve Officer 2 level
The ExecutIve Officer 2 classIficatIOn IS In Schedule 6 Under UN 23 employees
In Schedule 6 are paid on a weekly basIs, and the mImmum hours of work for
employees In Schedule 6 IS 36-1/4 hours per week.
13 EffectIve October 6 2003 the Temporary AssIgnment rules set out In ArtIcle
8 1 1 were applIed [$1 112 40 x 3% = $1 145 77] and Denyes was paid at the 4th
Step In the ExecutIve Officer 2 classIficatIOn at the rate of $1 146 96/week.
14 EffectIve January 1 2004 all OPSEU classIficatIOns receIved an across the
board Increase of 2 5% As the regular hours of work for the posItIOn In the
ExecutIve Officer 2 classIficatIOn IS based on a weekly rate, the 2 5% IS added to
the weekly rate as set out In the collectIve agreement, and effectIve January 1
2004 Denyes was paid $1 175 63/week.
15 EffectIve February 1 2004 Denyes receIved a ment Increase and was moved
to the 5th step In the ExecutIve Officer 2 classIficatIOn and paid at the rate of
$1,23494
16 EffectIve Apnl 1 2004 Denyes competed for and was successful In the
competItIOn for Agncultural InvestIgator and In accordance wIth ArtIcle 7 paid
at the rate of $1,234 94/week.
17 Denyes gneves that hIS temporary assIgnment pay should have been
recalculated effectIve January 1 2004 and argues that due to the across the board
Increase, he was reCeIVIng a less than 3% Increase effectIve January 1 2004
5
18 The Employer maIntaInS that Denyes receIved the Increase In accordance wIth
ArtIcle 8 of the collectIve agreement and MGS compensatIOn polIcIes
Dupuis
19 On September 1 2003 DupUIs was In the posItIOn of ConservatIOn Officer and
classIfied as a Resource TechmcIan 4 - ConservatIOn Officer
20 DupUIs was at the maXImum of the Resource TechmcIan 4 - ConservatIOn
Officer classIficatIOn of the rate of $27 81/hour The Resource TechmcIan -
ConservatIOn Officer 4 classIficatIOn IS In Schedule 4-7 Under ArtIcle UN2 the
normal hours of work for posItIOns In Schedule 4-7 In 40 hours/week, 8
hours/day DupUIs pnor to September 1 2003 was paid $1 11240 for a normal
week.
21 EffectIve September 2, 2003 DupUIs competed for and was successful In the
IntellIgence/InvestIgatIOns SpecIalIst (Resource TechmcIan, Semor 3)
competItIOn. The Resource TechmcIan, Semor 3 classIficatIOn IS In Schedule 6
Under UN 2 3 employees In Schedule 6 are paid on a weekly basIs, and the
mImmum hours of work for employees In Schedule 6 IS 36-1/4 hours per week.
The maXImum of the Resource TechmcIan, Semor 3 level In 2003 was
$1 101 41/week. DupUIs accepted a voluntary demotIOn to the posItIOn of
IntellIgence/InvestIgatIOns SpecIalIst and effectIve September 3 2003 DupUIs was
placed at the max of the Resources TechmcIan Semor 3 classIficatIOn,
$1 101 41/week.
22 EffectIve January 1 2004 all OPSEU classIficatIOns receIved an across the
board Increase of 2 5% As the regular hours of work for the posItIOn In the
Resource TechmcIan Semor 3 classIficatIOn IS based on a weekly rate, the 2 5% IS
added to the weekly rate, as set out In the collectIve agreement, and effectIve
January 1 2004 DupUIs was paid $1 14001/week.
23 In May 2004 the posItIOn of IntellIgence/InvestIgatIOns SpecIalIst was
reclassIfied from Resource TechmcIan Semor 3 to Resource TechmcIan 5
effectIve January 1 2002
24 DupUIs' salary was adjusted to $1 146 96 retroactIve effectIve September 2,
2003 to reflect the reclassIficatIOn to Resource TechmcIan 5 and further adjusted
to $1 17563 effectIve January 1 2004 when all OPSEU classIficatIOns receIved
an across the board Increase of 2 5%
At the heanng, the three gnevors who were present were afforded the opportumty to
make addItIOnal submIssIOns and dId so I have taken those submIssIOns Into account In comIng
to the conclusIOns set out In thIS decIsIOn.
6
On January 1 2004 the gnevors were entItled to a 25% pay Increase The Mimstry
applIed thIS 2 5% Increase to the wages the gnevors were reCeIVIng at the tIme They therefore
remaIned at the 4th step of the classIficatIOn the actIng assIgnment was In, but got a 2 5 %
Increase In theIr wages
The umon dIsagrees wIth the manner In whIch the negotIated annual pay Increase, whIch
occurred on January 1 2004 was applIed In thIS case It IS the umon's posItIOn that In calculatIng
the rate of pay to whIch the gnevors were entItled after January 1 2004 that the Mimstry should
have, In effect, returned the gnevors for a moment In tIme to theIr old posItIOn, whIch now had a
hIgher rate of pay and recalculated the 3 per cent Increase (to whIch the gnevor's are entItled
under artIcle 8 1 1) based on the new rate In effect after January 1 2004
Counsel for the Mimstry pOInted out that there IS nothIng In the provIsIOns of ArtIcle 8
that reqUIre the employer to recalculate the wages beIng paid to an employee on a temporary
assIgnment when an annual wage Increase takes effect. The 3% Increase IS calculated when an
employee moves Into the temporary assIgnment and nothIng In ArtIcle 8 suggests that the
employee IS entItled to any subsequent re-adJustments In support of thIS posItIOn, counsel
referred me to the decIsIOn of the Gnevance Settlement Board In Ontario Public Service Union
v Ontario (Ministry of Community Safety and Correctional Services) GSB #2002-1457
(Abramsky) (the Cartwnght case) She argued that It was dIrectly on pOInt and that I should
follow It.
In that case the umon argued that employees who were on temporary assIgnments
outsIde the bargaInIng umt were entItled to receIve negotIated pay Increases to theIr home
posItIOns plus the addItIOnal 3% provIded for In ArtIcle 8 The employer took the posItIOn that
the employee's home posItIOn salary IS Important only for determInIng theIr salary In the actIng
assIgnment. Once the actIng assIgnment starts, the employee's salary IS tIed to the actIng
posItIOn. Vice-Chair Abramsky dIsmIssed the posItIOn of the umon and concluded startIng at
paragraph 28
28 The collectIve agreement establIshes wage rates for work performed In a
classIficatIOn. One must perform work In the classIficatIOn In order to receIve pay
7
for that work. When an employee IS on a temporary assIgnment, they are no
longer performIng work In theIr home posItIOn, but are workIng In another
classIficatIOn, and theIr pay IS tIed to that classIficatIOn. ThIS IS clearly eVIdent
from ArtI cl e 8
31 But that provIsIOn [ArtIcle 8 1 1] deals only wIth determInIng the level of
pay at the commencement of the actIng assIgnment. Under thIS provIsIOn, the
employee's home posItIOn salary IS compared to the "next hIgher rate In the
hIgher classIficatIOn." If that results In at least a three percent Increase, he or she
IS paid that next hIgher rate ThIS provIsIOn, however does not thereafter tIe the
actIng employee's salary to theIr home posItIOn, plus three percent, for the
duratIOn of the actIng assIgnment.
32 By ItS terms, ArtIcle 8 1 1 does not provIde for that, nor does the partIes' past
practIce support such an InterpretatIOn. On the contrary the partIes' past practIce
clearly demonstrates that an actIng employee's salary whIle In the temporary
assIgnment, IS tIed to the actIng posItIOn.
Mimstry counsel also relIed upon the Blake decIsIOn - Amalgamated Transit Union
(Blake et al) and the Toronto Area Transit Operating Authority GSB #1276/87 (ShIme) -
and argued that, as the Issues raised In the case before me had been dealt wIth by the Board In the
Cartwnght Case, unless I concluded that the Vice Chair had made a mamfest error I was bound
by the earlIer decIsIOn.
Counsel for the umon dIsagreed wIth the posItIOn of the employer that the Cartwnght
Case dealt wIth the same sItuatIOn before me He sought to dIStIngUISh It on the basIs that the
IndIVIduals In Cartwnght were In temporary assIgnments to managenal posItIOns outsIde the
bargaInIng umt. As such, he urged me to conclude that the Cartwnght Case was not on pOInt as
the facts were fundamentally dIfferent.
As IS apparent from the Agreed Statement of Facts, the sItuatIOn whIch gave nse to each
IndIVIdual's gnevance (other than Mr Hemes/Brookes) In thIS case are somewhat dIfferent.
However the Issue at the heart of thIS case IS the same for each.
I completely agree wIth the conclusIOns reached by Vice-Chair Abramsky In the
Cartwnght decIsIOn and I am also of the VIew that her remarks are equally applIcable to the facts
In the case before me
8
After havIng carefully consIdered the eVIdence before me, the submIssIOns of counsel and
the comments of the gnevors, I have reached the conclusIOn that the gnevances must fall
Although I understand and am sympathetIc to the frustratIOn of the gnevors and theIr sense of
IneqUIty wIth the fact that someone mOVIng Into the same actIng assIgnment that they were In
after January 1 2004 (i e whIle they were stIll In the actIng assIgnment) could potentIally
receIve a hIgher wage the language of the collectIve agreement IS clear There IS nothIng In
ArtIcle 8 that reqUIres the 3% Increase on an actIng assIgnment to be adjusted In the face of
annual or any other type of Increases
The employer's InterpretatIOn of the collectIve agreement language IS correct and the
gnevances are dIsmIssed.
Dated In Toronto thIS 29th day of May 2006