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HomeMy WebLinkAbout1977-0130.Bisaillon and Beauchamp.78-07-17Between: - 130177 IN THE MATTER OF AN ARBiTRATION Under The . CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Messrs. Carl Bisaillon and R. Beauchamp And Ministry of the Environment Before: Professor George W. Adams Mr. J. W. Henley Mr. A. Riseley Chairman Member Member for the Grievor: Mr. R. Nabi, Grievance Officer Ontario Public Service Employees Union ,1901 Yonge Street Toronto, Cntario For the Employer: Mr. G. .4. Berry, Supervisor Employee Relations Ministry of the Environment -Personnel Services Branch, 7th Floor 135 St. Clair Ave. W., Toronto, Ontario Hearing: Suite 2100 180 Dundas St. W. Toronto, Ontario May 18th, 1978 -2- In this case the grievors claim Acting Pay at the rate applicable to the position of Plant Superintendentfor the periods of time they were temporarily assigned to that position. Mr. Bisail~lon was temporarily assigned from a Waste and Water Project Operators 2 position to a Waste and Water Project Supervisor 4 position during the period July 10, 1977, to August 1, 1977, for a total of fifteen work shifts. Mr. Beauchamp was temporarily assigned from a Waste and Water Project Operator 1 position to a Waste and Water Supervisor 3 position during the period July 4, 1977 to July 14, 1977, a total of 11 shifts. Both positions to which the grievors were temporarily assigned are management positions and the'occasion of each assignment related to the absence of the Superintendent for the purposes of vacation. A Plant Superintendent is a person who is employed on a regular and full-time basis by the Ministry of the Environment,but, who is excluded from the bargaining unit. The Plant Superintendent has a higher maximum salary than either of the grievors. The relevant provision of the collective agreement provides: 6.1 Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in.excess of ten (10) consecutive working days he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next highest rate in the higher classification provided that such acting pay shell not be less than three percent (3%) above his current rate. 6.2 When an employee is temporarily assigned to the duties and responsibilities of d position in d classification with a lower salary maximum where there is not work reason- dbly available for him in the position from which he was assigned, he shall be paid the lower applicable claSSif- ication rate to which he was assigned, after the expiration of ten (10) consecutive working days in such lower clas- sification. -3- 6.3 When an employee is temporarily assigned to the duties and responsibilities of a position in a classification with a lower maximum salary where there is work reasonably available for him in. the position from which he was assigned, he shall continue to be paid'at the rate applicable to the classification from which he was assigned. 6.4 This Article shall not apply to temporary assignments where an employee is temporarily assigned to perform the duties and responsibilities of another employee who is on vacation. 6.5 Where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement, he shall retain his rights and obligations under the Collective Agreement. The issue is whether the collective agreement requires that the - grievors be paid the appropriate rate of pay of the higher classification assumed during the temporary assignment in accordance with article 6.1 when the assignment was for a management employee who was on vacation. The Employer relies on article 6.4 which provides that the entire article does not apply when the temporary assignment is for the purpose of replacing another employee on vacation and on article 6.5 which stipulates that an employee temporarily assigned to perform the duties and responsibilities of a position not covered by the collective agreement, retains his rights and obligations under the agreement. It is the Employer's position that, while article 6.1 is a "right" within the meaning of article 6.5, article 6.4 is an"obligation"and one that precludes the application of article 6.1 where a vacation is the occasion giving rise to the temporary assignment. In support of the grievances, the Unionargues that the reference - a - to "another employee who is on vacation" in article 6.4 cannot be interpreted to mean a person outside the ambit of the collective agreement or, more specifically, a person employed in a managerial capacity. This ~being the case, the Union submits that article 6.4 is not an obligation under the collective agreement for bargaining unit employees. In support of this position, the Union took the Board through the various provisions of The Crown employees Collective Bargaining Act and The Public Service Act which define the meaning of the term "employee" for the purposes of The - Crown employees Collective Bargaining Act:From an analysis of these provisions, the.Union concluded that it, as an "employee organization", lacked authority to negotiate a collective agreement providing for any other meaning to be given to the term "employee". It is the Board's decision that these grievances should be dismissed. In our view the Union submissions are without merit. Article 6.5 makes it very clear that an employee retains his rights and obligations under the agreement. Surely the parties did not intend that employees were to have the benefit of this provision without also assuming its burdens~. One such burden is article 6.4. Therefore, to give efficacy to article 6.5, not only are the references to assigned positions in articles 6.1, 6.2 and 6.3 to be interpreted to mean positions not covered by the collective agreement where applicable, but also the reference in article 6.4 to "another employee who is on vacation" must be interpreted to include a person employed in a managerial capacity who is on vacation. In our view, this is the only common sense result that can flow from the application of article 6.5. Finally, contrary to the Union's submissions, we are of the r -5- opinion that the negotiation of this result was well within the Union's statutory authority. The grievances are-dismissed: : Dated at Toronto this 17th day of July, 1978. G. W. Adams, Chairman I concur J. W. Henley, Member A. Riseley, Member