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Home My WebLink About2007-3897.Mackay.11-07-11 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO Fax (416) 326-1396 7pOpF IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Union - and - Employer BEFOREVice-Chair FOR THE UNION FOR THE EMPLOYER HEARING - 2 - Decision [1] In July of 2009 an award issued in this matter in which the Board found that the employer, by failing to create and fill a single P03 position, was in violation of its obligations under Appendix COR5 of the collective agreement. [2] After a sojourn in the Divisional Court, hearing in this matter resumed before me to deal with the issue of remedy flowing from the award. [3] As outlined in the prior award, the 2002-2004 collective agreement between the parties included Appendix COR5 ( hereinafter "CORS") to the correctional bargaining unit collective agreement. The material portion for our purposes reads: The Employer shall undertake a review and update of the Probation Officer class standards and shall establish a Probation Officer 3 classification effective January 1,2002. [4] As of the date of the initial hearing in this matter (July 9, 2009), the employer had yet to create, let alone fill, a single position within the P03 classification. [5] For the reasons set out in my prior award, I found that failure to be a breach of the collective agreement and, in particular, COR5 thereof. [6] Almost two years later, when the parties appeared before me for the second time on this matter, the employer was still yet to create, let alone fill, a single P03 position. [7] Employer counsel advised, however, and this was not disputed by the union, that it now had an intention (no specific timetable was disclosed) to create, post and thereby fill a total of eight P03 positions - one per Ministry in each of the four Regions served by the two Ministries that employ probation officers. It asserted that the implementation of this plan would bring it into compliance with the terms of the collective agreement and the prior award in this matter. - 3 - [8] The union disagreed. Indeed, it was quickly obvious that the parties could not have more diverging views regarding the origin ofP03 species, or, more specifically, how it is that P03 positions ought to be created and filled. [9] The employer's view, consistent with its intention to create and fill eight new positions, is fairly conventional, depending upon the well known "post and fill" process outlined in the collective agreement. Essentially, the employer (subject, of course, to its collective agreement obligations) determines its operational needs and, to the extent that necessitates the creation of new positions, those positions are posted and filled in accordance with the job competition provisions of the collective agreement. [10] The union posits a much more automatic process for the creation ofP03 positions. Essentially, in its view, all that separates P02s from P03s is time. The former simply and seamlessly evolve into the latter over time. No process of identifying operational needs or job posting is required. [11] It is not only the parties' theoretical conceptions that diverge so dramatically. If the initial decision in this matter might be seen to have affirmatively answered the question as to whether not creating or filling a single P03 position was a breach of the employer's collective agreement obligations, this decision may be seen to be addressing the question of how many P03 positions is/was the employer obliged to fill. The employer's answer, as we have seen, is eight. For its part, the union clung to its view that progression from P02 to P03 is automatic. Although it posited no specific number, I note that, in the prior hearing, it asserted that some 500 of the then complement of some 800 P02s ought properly to have advanced to the P03 level. There is no reason to believe the number woul d have dimini shed since then (on the contrary). [12] But while the gulf between the parties' positions may be substantial, the union made an important concession. Not only did it not advance any alternative position, it also accepted (subject to one caveat) that, ifits position regarding the manner of progression from P02 to P03 is rejected, the employer's proposal to post and fill eight P03 positions would bring it into compliance with its obligations and with the terms of ttached job posting The Policy is attached. The CO class standard job spec attachedBurrell decision sample postings attached) - 5 - [15] The union's argument, elusive though it may be, appears to hinge on the assertion that the creation of the P03 is, at least effectively, the creation ofa new level on the wage grid for a single unified classification of PO. In this view pals, P02s and P03s represented little more than transition points on the salary grid. [16] The agreed facts, as amplified by the parties' largely undisputed submissions on the point, disclose that movement from PO 1 to P02 is typically automatic. And while there may be individual variations, it appears that the typical scenario involves commencing as a POI (at least for salary purposes and, in some cases, for both salary and classification purposes) and progressing to the P02 level after completing the requisite training and service requirements. Thus, typically, the move from POI to P02 occurs two years after commencement of employment. It is a seamless move and not one which is effected under the posting provisions. The union seeks a similar type of automatic transition from P02 to P03. [17] One might encounter significant difficulty in any attempt to find an explicit collective agreement blueprint for the PO 1 to P02 process just described. Notwithstanding this, the parties have explicitly agreed that this is and has been the practice. In addition, it also appears to be rooted (though perhaps not to quite the extent or with the same level of clarity asserted by the employer) in the terms of the Class Standards. These clearly identify the PO 1 as the "entry and training" level position, which progresses to the P02, which, in turn, is identified as the "working level" position. Thus, the undisputed manner in which PO 1 s become P02s is built upon an artifice of practice and adherence to the employer generated Class Standards. [18] There is, of course, no practice to point to with respect to the movement from P02 to P03. And neither do the Class Standards assist the union in that regard. For while they specifically identify PO 1 sand P02s as training and full working level positions respectively, and explicitly contemplate the progression from one to the other, no such terms are found in relation to P03s. P03s are described as "team leader positions" and nothing in the Class Standards contemplates a progression from P02 to P03 or how that would be effected. - 6 - [19] Indeed, it is in relation to this last point where the frailty of the union's position is most evident. Even assuming one could find some basis for some sort of automatic progression from P02 to P03, it is impossible, perhaps apart from creating schemes out of whole cloth, to see how that would be effected. The union argues that the P02 to P03 progression should mirror the PO 1 to P02 progression. It argued, however, that the transition should occur one year after the P02 reaches the top of the P02 salary level. While there may be some intuitive attraction to the submission, it does not mirror the PO 1 to P02 transition. [20] The salary structure for the PO classifications is curious. The collective agreement identifies a start rate and seven subsequent semi-annual increases for pals. (One might wonder why such a protracted grid is required if pals typically move to P02 after 2 years.) P02s have a start rate followed by 5 annual increases. It is at that point, i.e. one year following attaining the maximum P02 level that the union argues P02s should automatically become P03s. (P03s are provided with a start rate followed by 4 annual increases to progress to the maximum salary.) In any event and whether the transition point is identified as 2 years (like the POI to P02 progression) or the end of the P02 grid, there is absolutely nothing in practice or in writing anywhere to support such a result. [21] The union's argument to justify the automatic progression (even apart from the mechanics of any such progression) is no more convincing. It is built on the assumption that all pas constitute a single classification and that PO 1 s, P02s and P03 s are just steps along the salary grid. Indeed, the union went so far as to argue that the P03 is nothing more than a new level added to the salary grid for what it asserts is the single classification of PO. [22] While the union may well wish it to be so, that is not enough to effect the task. It is clear from the collective agreement and the salary rates contained therein, as well as the Class Standards, that there are 3 different Probation Officer classifications. The mere fact that they share some common nomenclature does not transform them into a unitary classification. There are an impressive number of classifications under the collective a