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HomeMy WebLinkAbout1978-0041.Broadley.81-06-24 Decision\ 1 - -- , I__ . . . . . . . . . . I’ ONTARIO CROWN EMPLOYEES :‘I ;I GRIEVANCE ’ SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2700 41/78 Telephone 416/598- 0686 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before ThE GRIEVANCE SETTLEMENT BOARD Mr. E. Broadley and Grievor The Crown in Right of Ontario Ministry of Transportation & Communications Before: Mrs. Maureen Saltman - Vice-chairman Mr. A. Reistetter - Member - Member Mr. B. Switzman For the Grievor: Mr. M. Pratt, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. N. Pettifor, Staff Relations Supervisor Ministry of Transportation & Communications Hearing: August 14th, 1980 . -2- In this grievance, the Grievor, Edward Broadley, complains that the Employer filled a vacancy within the bargaining unit without complying. with Article 4.1 of the collective agreement. The parties agreed to the following facts. On December 30, 1977, Mr. R. McGregor, the incumbent of a position, classified as Highway Equipment Operator 4, in the Owen Sound District of the Ministry of Transportation and Communications, retired. Mr. McGregor's position was included in the bargaining unit. Some eight months earlier, the position of Vehicle and Construction Equipment Supervisor, classified as Highway General Foreman 2, which was excluded from the Bargaining unit, had been abolished and the incumbent of this position, Mr. W. Ross Waymouth, had been declared to be surplus and was, therefore, subject to layoff. Accordingly, the Employer appointed Mr. Waymouth without competition to the Highway Equipment Operator position formerly occupied by Mr. McGregor. There is no question that Mr. Waymouth consented to the appointment to this position, a lower-rated job. The Grievor claims that the Highway Equipment Operator 4 job should have been posted. -- -- - -_ _- -_--- c- The relevant provisions of the collective agreement are as follows: 1.1 In accordance with The Crown Employees Collective Bargaining Act, the Ontario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of clause 9 of subsection 1 of Section 1 of the Crown Employees Collective Bargaining Act. -3- Article 4 - Posting and Filling of Vacancies or New Positions 4.1 When a vacancy occurs or a new position is created in the bargaining unit, it shall be advertised for at least five (5) working days prior to the established dosing date when advertised within a Ministry, or it shall be advertised for at least ten (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. Article 24 - Job Security 24.1.1 position or other material change in organization, the employee shall, where possible, be transferred to another vacancy or work assignment in the Ministry having the Same classification or, with the consent of the employee, having a classification with a lower maximum salary as per section 5 of Artide 5. Where it is proposed to release an employee by reason of shortage of work or funds or the abolition of a The following are the relevant statutory and regularory provisions: The Crown Employees Collective Bargaining Act, 1972 Paragraph 1(1)(g): (g) "employee" means a Crown employee as defined in The . Public Service Act but does not include, ..... (iii) a person employed in a managerial or confidential capacity The Public Service Act subsection 1(g): "public servant" means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Council, by the Commission or by a minister and "public service" has a corresponding meaning; Subsection 29(3): Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation- .. . -4- Regulation 749 under The Public Service Act section 32: (Release From Employment) (1) In this section, "release'' means release from employment pursuant to subsection 4 of section 22 of the Act. 0. Reg 398/77, s.1 (2), part, (2) Where it is proposed to release a civil servant and in any ministry to which he applies there is a vacant position, (a) for which he is quaiified; (b) for which he is acceptable to the deputy minister of the ministry: arid (c) in the Same class as or in a class with a maximum salary not greater than that of the position occupied by the civil servant, the deputy minister of the ministry shall transfer the civil servant to the vacant position. In our view, Article 24 of the collective agreement is not relevant ', 1 \ to this case since it applies to "employees" which would exclude Mr. Waymouth who, as a person employed in a managerial capacity at the time of his transfer, was not an employee under The Crown Employees Collective Bargaining Act, 1972 ("C.E.C.B.A.") and, therefore, under the "collective agreement (Article I; Para. 1(1)(g), C.E.C.B.A.). He was, however, a civil servant within the meaning of Subsection l(a) of The Public Service Act. Therefore, Section 32 of Regulation 749 under the Public Service Act, (P.S.A.), which applies to civil servants is relevant. Section 32 requires the Deputy Minister to transfer a civil servant who has been declared surplus to a position within the Ministry for which the civil servant is qualified. In this case, Mr. Waymouth was transferred to the Highway Equipment Operator 4 position, apparently pursuant to the authority under Section 32. The conflict arises because the Grievor claims that the Highway Equipment Operator job should have Seen posted in * accordance with the provisions of Article 4 oi the collective agreement which stipulates that jobs must be posted where There is a vacancy. -5- In this case, there was a vacancy in the Highway Equipment Operator 4 job, which the Employer saw fit to fill, and which had to be posted. The Employer argued that, since it was required by Regulation 749 (Section 32) to transfer the surplus employee, Mr. Waymouth, there was no vacancy to which Article 4 could apply. In our view, this interpretation is incorrect, as it ignores Subsection 29(3) of The Public Service Act which in effect requires the Employer to apply Article 4 of the collective agreement before Section 32 of Regulation 749, since the two provisions are in conflict with respect to filling a vacancy and since that conflict aff ects employees in the bargaining unit. Therefore, we find that the Employer should have posted the Highway Equipment Operator job in Owen Sound, thereby allowing the Grievor to apply for the job, and, in failing to do so, violated Article 4 of the collective agreement. The grievor did not request relief other than a declaration, which we have given, that the Employer breached the collective agreement. Accordingly, the grievance is allowed. Dated at Toronto this 24th day of June 1981. Maureen Saltman Maureen Saltman - Vice-chairman "I concur" A. reistetter - Member "I concur" B. Switzman - Member