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HomeMy WebLinkAboutUNION-1989-07-06 (1) IN THE MATTER OF AN ARBITRATION BET WEE N: THE OTTAWA-CARLETON REGIONAL BOARD OF HEALTH The Emp10yer '.\ 'I JI: ' - and - THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO The Union And in the matter of a p01icy grievance concerning the ca1cu1ation of c1aims for re1ated experience. ARBITRATOR: I.G. Thorne APPEARANCES FOR THE EMPLOYER: Dona1d W. Wi1son, Counse1 A1an R. Mongraw, Director of Administration, Hea1th Dept. APPEARANCES FOR THE UNION: Susan McCu110ch, Labour Re1ations Officer A hearing in this matter took p1ace at Ottawa on May 17th, 1989. I, '.,. . .., (2 ) AWARD Thi s is a p01icy grievance in which the association asserts that the emp10yer has been incorrect1y ca1cu1ating the c1aim for,,\re1ated experience ,9': new emp10yees. Under the co11ective agreement re1ated experience is recognized both as a qua1ification for emp10yment and as a basis for p1acement on the sa1ary grid. '> The emp10yees covered by the agreement are physiotherapists, occupationa1 therapists and socia1 workers, who work in the Home Care Program operated by the Ottawa-Car1eton Regiona1 Hea1th Unit. The reasons for the recognition of prior experience are not expressed in the agreement. However, the fact that such experience is recognized suggests that the parties have a common understanding that the responsibi1ities of those inv01ved in the Home Care Program are such that related experience is a necessary qualification and shou1d be recognized as one of the determinants of placement on the salary grid. The parties agreed on the re1evant facts, which are not comp1icated. The dispute is about the way in which the emp10yer has app1ied the f0110wing provisions of the agreement: I, ~RTICLE,~ ~.Sa1aries 21.01 (a) Sa1ari~esto be paidto emp16yees and the c1assification of emp10yees sha11 be contafned in Schedu1e "A" attached hereto and forming part of this Agreement; (3 ) (b) Starting sa1aries: 1. A11 emp10yees require a mlnlmum of two years of related experience to start. ,\ 2. (a) The Employer sha1l recognize for re1ated experience with another health unit on a one for one basis to the maximum of~e~i~ incremental step above start. II, I (b) The Emp10yer sha11 recognize for re1ated experience other than hea1th unit experience on a one for one and a ha1f basis to the maximum Ofthethirdlncrementa1 step above start. '> By way of examp1e, the sa1ary schedu1e for physiotherapists and occupationa1 therapists consists of a "start" rate f0110wed by , four annua1 increment 1eve1s entit1ed "after one year", and so on. In the past, the emp10yer has applied Artic1e 21.01 in the following manner: a new employee with two years of re1ated experience with another hea1th unit is p1aced at the start rate on the grid; a new emp10yee with two years related experience e1sewhere than in a hea1th unit is also p1aced at the start rate; a new employee with three years of hea1th unit re1ated experience starts at the "after one year" step on the grid, whi1e one with three years of non-hea1th unit re1ated experience starts at the start rate. In p1acing such I emp10yees in this manner, the emp10yer purports to be recognizing re1ated experience on the one-for-one and one-for-one-and-a-ha1f bases s&t out in Artic1e 21.~1{b). Extrapolating,1 a new emp10yee with four years of hea1th unit e;xperience is p1aced at the "after' two years" 1eve1, and one with five years at the "after three years" 1evel. No (4) matter how many years of related experience a new employee brings to the job, the third incremental step above the start rate is the highest level at which he or she may start. To complete the picture, a new employee with four years of non-health unit experience will have that experience recognized as two and three quarter years and will be pl~ced at the start level1y one with five yejars (equivalent to three and a half years), at "after one year"; and one with six years with eight years experience achieves the maximum starting rate of (equivalent to four years), at "after two years". Such an employee "after three years". 21.01. sets out a level of qualification which an employee must posses in order to be hired, no more and no less. Once hired, an employee is to The association t'akes issue with this application of Article In the association's submission Article 21.01 (b) 1 simply be placed on the grid in accordance with sub-article 2 (a) or (b). That is, a new employee with two years of related experience with another hea1th unit should be placed at the "after two years" level rather than at the start level. Similarly, an employee with three years of related experience should start at "after three years" and so on. Employees with non-health unit related experience would likewise start at the level indicated by the number of years of their experience (recognized on a one_for-one-and-a-half basis). must have two years 6f related experience in order to start in the The employerJ'upported its positiOnl by pointing out that one I, (5 ) job. The effect of Article 21.01 (b) 2 must, in the employer's submission, be to permit an employee who can show experience additional to the two year requirement to start further along the grid; implicit in this view was that a new employee would otherwise start at the start rate. The association considered that this aPFoach might have mer; HI if sub-article 2(la) spoke ,of "additional" related experience, but it did not. In any ~ase, in the association's view the agreement did not, by requiring certain experience to start, require that an" employee start at the start r.ate. The employer saw two possible difficu1ties with' the association's position. One was that no employee would start at the start or one-year level: all would start at least at the two-year level. To this the association responded that the start and "after one year" steps would still be applicable to employees starting with less than two years of related experience, as had happened on occasion. The other difficulty visualized by the employer was the possibility that discriminatory treatment of employees might resu1t: if in fact the start rate had significance as a rate actua11y paid to some starting employees, and if such an employee was one who had the minimum required experience of two years, it would be unfair to place a new employee with three years experience at the "after three years" level. However the association emphasized that its position was consistent: for placement on 1 the grid, what should be recognized were actual years of related experience I, (necessarily adjusted " ~' .' for non-health unit experience). I i Counsel for the employer also referred to the submissions of (6 ) the association to the interest board of arbitration (chaired by the chairman of the present hearing) which was to determine the issues in dispute in negotiations for a new collective agreement to commence January 1st, 1988. Hi s poi nt in maki ng thi s reference was wi th a view to showing that the association appeared to find no difficulty in in,~erpreting Article 21.01: at that time. Th~ association's view was that its submissions simply had the affect of asserting that the job was more valuable than a similar position with another employer. * * * The parties have' made reference to the employer's past practice in administering the related experience provisions. However it is not appropriate to use the evidence of past practice as a basis for interpretation, as might be possible if the language of the agreement were ambi guous. In fact, neither party regards Article 21.01 as ambiguous. I therefore accept the evidence of past practice simply as an i11ustration of the employer's position. Similarly, the association's submissions to the interest board wi 11 not be determinative, a1though they do assist in understanding the contrasting positions the parties now take. The 1 anguage of the agreement itself, and the implications to be drawn from it, must be I the source of the interpretation. '~o' e' s I Article 21.01 cr not stand entirely alone, as sub-article (a) refers to the sal~ry schedule attached to the agreement. The I, (7) schedule sets out a "start" rate, an "after one year" rate, and so on, for each classification. If nothi ng more were said, it woul d appear that a new employee would start at the "start" rate, moving to the "after one year" rate after a year in the position, and so forth. If the situation is to be different, it will be as the resu1t of the operation of Article 21.0ilJ, (b). Sub-article (b) purports to deal with , "starting salaries" and paragraph one states that employees require a Up to that mi nimum of two years of related experience "to start". point in the article there is nothing t oi n d i cat e that "starting salaries" to those who "start" are anything other than those paid at the "start" rate. More precisely in terms of the present dispute, there is nothing in Articl~ 21.01 (b) 1 which requires the payment to a new employee with two years of related experience of a starting salary at the two year level. Paragraph 2 appears to serve three purposeS in determi ni ng It entitles those possessing greater the level of starting salaries. experience to start at a higher level on the grid. It places a limit on starting salary at the "after three years" level. And it sets out the type and amount of related experience which are necessary in order for such experience to be recognized. That recognition is as relevant to the determination of the two years experience which an employee I must have to "start" as it is to the determination of the higher level a new employee with more experience is to be paid. What it I do, in my view~ is to require payment to a new employee with So far as the at whi ch I, 'does not two years' experience h other that the start rate. (8) starting salary of an employee with two years' experience is concerned, it does nothing more than to stipulate how the two years of experience are to be determined. Given that starting point, it would hardly be logical to permit a person with three years' experience to start at the 'after three years" rate. '.\ II On this reading of Article 21.01(b) the recognition of related experience is straightforward. A person with the minimum required experience of two years (according to the formula) starts at the "start" rate. A person with three years' experience starts at the "after one year" rate, and a person with five years' experience starts . at the "after three years" rate, that being the maximum permitted. This reading is, in my opinion, quite supportable on the wording of the relevant provisions of Article 21.01 and the salary schedule. By contrast, certain implications of the position advanced by the association render that position the less reasonable. If the association's interpretation were the correct one, and if the employer hired only those with at least the minimum required experience of two years, no one would ever be paid at the "start" or "after one year" level. This would be a somewhat surprising result given the existence of those levels on a grid which, in the case of lsenior physiotherapists, consists only of the "start", "after one year" and "start" employer has sometimes hired employees who lack the minimum required rate has levels. " ~I relevance, The association has suggested that I under its interpretation, because the "q,\ter two year" the (g) experience. However it would be unreasonable to base an interpretation on that assumption in view of the express requirement in the agreement for a minimum of two years of experience. Further, and while one should give relatively less weight to the point, the association's submission to the interest board was at least consistent with' the apumption that the stalr;~ rate has signifidance as a real rate which employees receive: the association argued that the start rate should be equivalent to the after two year rate at public hospitals in order to take account of the fact that two years of experience were required in order to to start with this employer; the implication was that those who start with two years' experience receive the start rate and so must be compensated' at the (hospital) two year level for the experience they bring to the job. If that submission were borne out, a person with three years' experience would be paid at the "after one year rate" and so forth. In assessing the association's position, one must also consider the fact that "after three years" is the maximum rate at which an employee can start, whatever his or her experience. If the association's interpretation were the correct one, and again if the employer hired only employees with at least two years' experience, then no employee would start at a rate lower than "after two years" or hi gher than "after three years". Thi s seems a rather narrower range than the words "to the maximum of the third inc~emental step above start" would lead one to expect. I For the forego~ng reasons, the association's challenge to, the employer's calculatioJ of recent related experience in placing new I, (10 ) employees on the sal ary gri d cannot succeed. dismissed. The gri evance must be 'I DATED AT KINGSTO~lthis 7th day of Jun' 1989 ............. . ........... . I.G. Thorne, Arbitrator \., , ~I .