HomeMy WebLinkAboutBegley et al 11-1-11
IN THE MATTER OF AN ARBITRATION UNDER SECTION 48
OF THE LABOUR RELATIONS ACT, 1995 (AS AMENDED)
BETWEEN
Ontario Public Service Emp16Ye"es
Union (lithe Union")
AND
The Municipal Property Assessment
Corporation (IIrvIP AC"t)
And in the matter of a claim that certain employees have been improperly
classified, or altelnatively, that they have been doing the work of a higher rated
classification and have not been properly paid for that work;
And in the matter of a further claim that following an organizational change,
c;ertain employees are entitled to "retroactive" wage payments back to the date of
ratification/commencement of the new collective agreement.
BEFORE:
R.O. MacDowell
(Sole Arbitrator)
APPEARANCES:
For the Union:
Ed Holmes
Gary Cooper
David Lynch
(Counsel)
F or the Employer:
John Saunders
Jack Julien
Ed Broderick
(Counsel)
The hearing in these matters was held in Toronto, Ontario, on vanous dates
scheduled on the agreement of the p31;ties.
Award
1. This decision deals with two different disputes that have arisen between the parties. For
convenience, I will call them: (1) "the reclassification disputc" and (2) "thc orl!allizatiollfll
rCalil!llmellt dispute", Both disputes generated a number of grievances; and, failing r~solution,
both sets of grievances made their way to arbitration before me.
*
2. The parties were agreed that I have been properly appointed under the terms of the
relevant collective agreements and that I have jurisdiction to hear and determine the matters in
dispute between them. However in order to make this decision easier to understand, it may be
useful to briefly describe what each case was about.
*
3. The "rcclassification dispute' was an amalgam of more than 120 individual grievances,
involving roughly 120 different employees. In each case, the grieving employee contended either
(a) that slhe had been routinely doing the work of a higher classification and should therefore be
"reclassified" into that higher-rated position; or, alternatively, (b) that from time to time slhe did
the work of the higheH'ated classification and should therefore receive the higher rate for the
period(s) of time that slhe performed those job functions. Accordingly, each grievance required a
detailed examination of the work pattern of the employee, over a numoer of years, in order to see
whether one or other of these claims could be substantiated on the evidence.
4. To be clear: insofar as the "reclassification grievances" were concerned, there was no
dispute that if the employee really was doing the work of a higher rated classification then s/he
2
should get the appropriate wage rate - either pelmanently, or at least for the period(s) when s/he
was perfOlming the work. There was no issue of "contractual interpretation", as such. Rather, .the
question in each case was a factual one: whether the employee's claim could be substantiated on
the eyidence - and in a context where the relevant classification descriptions had a degree of
'.
overlap, so that the positions were not "watertight compartments".
*
5. A hearing on the "reclassification dispute" began in early 2009, and continued thereafter
on a number of hearing days scheduled on the agreement of the parties. The purpose of those
hearings was to receive the parties' evidence concerning one of the Grievors whom the union
believed had a particularly compelling argument; moreover it was hoped that his case might set
the stage for a more expeditious resolution of the many individual grievances that were to follow.
On the other hand, while it seemed likely that subsequent grievances could be dealt with more
quickly than the earlier ones, the number of grievances requiring individual consideration meant
that it would take many months (probably years) to complete the case.
*
7. During the most rccent round of bargaining the parties made efforts to resolve the
"reclassification dispute;'; and while they made some progress in that regard, a final settlement
eluded them.
*
8. The "ol'l!anizational realignment dispute" involves (basically) the same employee
grouping, but a rather different issue. It is unnecessary to go into the details here. It suffices to
say that during the most recent round of bargaining, the parties discusscd an 'torganizational
realignment" which would be implemented somctime after the ratification of a new collective
3
agreement and would change the title, status, and salary of approximately 135 employees. The
"organizational realignment disputetl is about whether the new salary, so created, was intended to
be "retroactive" to the commencement of the new collective agreement [i.e. retroactive to the
date of ratification of the agreementJ or, alternatively, would run from the creation of the new
position flowing from the organizational realignment [see Letter of Understanding # 17J.
*
9. In summary then, although the two disputes were different, th~y both involved (roughly)
the same group of employees, and they both involved monetary claims by individuals who
believed that they had not been properly paid.
*
10. These matters came on for hearing on January II, 2011; and given thc nature of the two
disputes, the parties invoked the dispute resolution mechanism found in section 48(14) of the
Labour Relations Act. In the course of that exercise, I had the opportunity to review the
documentation upon which the t1organizational realignment" grievanccs werc based, including:
the language of the Memorandum of Agreement dealing with retroactivity to the date of
ratification "unless otherwise stated in the collective agreement"; Letter of Understanding # 17;
and certain rclated correspondence, I also had the opportunity to receive the 'paliies'
representations with respect to the meaning of the new collective agreement language. And of
course, having already spent a number of hearing days on the "reclassification dispute1' (with the
prospect of many more) I had an appreciation of the nature and dimensions of that dispute.
14. With that background, then, I made recommendations to the parties on a "global
settlement", which would fully and finally resolve all of the matters in dispute between them.
4
15. It seemed to me to be quite unfortunate that the "reclassification grievances" might
percolate along, for years, without delivering any tangible results for the vast majority of the
employees affected; while the t1organizational realignment dispute", while simpler in concept,
had an "all or nothing", "win/lose" quality about it, that was unlikely to enhance the parties'
relationship regardless of its disposition. In the circumstances (and having considered the
"practicalities" of the situation, the parties' representations, and the ostensible strength of their
positions) I reconullended a single "global resolution" for the two disputes - which, in the result,
the parties accepted.
*
16. Having regard to the foregoing, I direct that MPAC pay the sum of $475,000.00, (less
deductions required by law), in full and final resolution of all issues and grievances arising in
cOlmection with these two disputes.
17. These monies will be distributed in the manner prescribed by the Union; and MP AC will
facilitate that distribution within 60 days of receiving the Union's detailed directions.
18, I will remain seized in the event that there is any dispute concerning the interpretation or
implementation of these terms.
Dated at Toronto this 1] th day on January, 2011
BR.O. MacDowell"
RO. MacDowell, Sole Arbitrator
5