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Home My WebLink About1978-0078.Broadley.81-06-24IN THE MATTER OF AN ARBITRATION Under The I CROWN EMPLOYEES COLLECTIVE BARGAINING’ACT Before TiiE GRIEVANCE SETTLEMENT BOARi Crievcr The Crown in Right of Cntario Ministry .of Transportation EC Comnunicarions Sefore: For the Griever: Mrs. Maureeri Saltman - Vice-Chairman 1Wr. A. Reistetter - Llernber Mr. 6. Switzman - ,Member [Mr. M. Tratt, Grievance Officer Ontario Pcblic Service Employees Union For the Employer: Mr. IN. Peflifor, Stzff Relarions Supervisor Minisay of Transpor?atior: k Communicarions Hearing: August 14th, 1980 -2- In this grievance, then Crievor, 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 Minisuy of Transportation and Communications, retired. :Mr. McGregor’s position was included in the bargaining unit. Some eight months earlier, the position of Vehide and Construction Equipmenr Supervisor, classified as Highway General Foreman 2, whi& was excluded from the Bargaining unit, had been abolished and the incumbent of this position,,LIr. W. Ross Waymouth, had been declared to be surplus and was, :Lerefore, subject to layoff. Accordingly, the Employer appointed Mr._Way~rnouth..withautcornperition _~.~_,~~~~. 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 Griever claims that ___. ~.~.~._.~ -~ the Highway Equipment Operator 4 job shouldhave been posted. -. The relevant provisions of the collective, agreement are as foIlows: Article 1 - Recognition 1.1 In accordance with The Crown Employees Collective Bargaining Act, the Ontario public Service Employees Union is recognized as the exdtivk colkctlve bargaining agent for aJf public servants other than persons who are not employees within the meaning of clause 9 of subsection I of Section 1 of the Cm* Employees Collective Bargaining Act. -3- Article 4 - Posting and Filling of Vacancies or New Positions 4.1 When a vacancy occurs or a new p3sition is ueated in the bargaining unit, it shall be advertised for at least five (5) working days prior to the established closing date when advertised within a Minisuy, or it shall be advertised for at least ten (10) working days prior to the established dming date when advertised service-wide. All applications will be adcrowledged. Where practicable, notice of vacancies shall be posted on bulletin tnmrds. Article 24 - ~Job Security 24.1.1 Where it is proposed to release an employee by reaSon of shortage of work or funds or the abolition of a position or 0th~ material change in organization, the employee shall, where possible, be transferred to another vacancy or work assignment in the CMinistry having the same dassification or, with the c-t of the employee, having a danification with a lower maximum salary as per section 5 of Article 5. The following are the reievanr statutory and reguiarory provisions: The Crown Employees Collective &rgaining Act, 1972 P-graph l(lxg): ,k) l’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 ~P~ty, The Public Service Act subsectial IO: “public servant” means a person appointed under this Act m the service of the Crown by the Lieut-t Governor in Council, by the Commission or by a mi@ster, and “p&tic service” has a c-pending meaning; Subsection 2%3): Any provision in a collective agreement tit is in conflict with a provision of a regulation as it affect5 the employees of a bargaining mit covered by the collective agreement prevails over the provision ‘of the regulation. -4- Regulation 749 under The PubIiC SeWiCe Act Section 32~ (Release From Employment) (1) In this se&ion, r’release’~ means release from employment pursuant to subsection 4 of section 22 of the Act. 0. Reg 39X/77, s.1 (2% part (2) Where it is proposed to release a dti se-t and in any ministry’ to which he apples there is a vacant psitial, (a) for which he is qualified, (b) for which he is acceptable to the deputy minister of the ministry: a&d (cl in the same class as or in a chss with a maximum salary not greater than that of the position occupied by the civil servant, the deputy minister of the minimy shalI transfer the civil servant to the vacant position. In our view, Article 24 of the collective agreement is not relevant 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 Collecrive Ba,rgaining’ Act, 1972 (“C.E.C.B.A.“) and, therefore, under the ‘:colIective agreement (Article 1; Para. I(Ixg), C.E.C.B.A.). He was, however, a civil servant within the meaning of Subsection l(a) of E Public Service Act. Therefore, Section 32 of Regulation 749 under the Public Service Act, (“P.S.A.“), .which apphes 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 me authority under Section 32. The conflict arises because the Crievor claims that the Highway Equipment Operator job should have been. posted in accordance with the provisions of Article 4 of the collective agreement which stipulates that jobs must be posted where there is a VaCXCy. * -5- In this case, there was a vacancy in rhe Highway Equipment Operator 4 job, which the Employer saw fit to fill, and w.hich had TO be posted. The Employer argued thar, since it was required by Regularion 749 (Section 32) to transfer the surplus employee, Mr. Waymouth, there was no vacancy to which Article 4 could apply. In our view, this,interpreration is incorrect, as it ignores Subsecrion ZY(3) of The Public Service Act which in effect requires the Employer to apply ;\ryicle, 4 of rhe collective agreement before Section 32 of Regulation 749, since rhe iwo provisions are in conflict with respect to filling a vacancy eland since rhat conflict : affecrs employees in the bargaicing unit. Therefore, we find rhat the Employer should have psted the Highway Equipment Operator job in Owen Sound, thereby allowing the Crievor to apply for the job, and, in failing io do so, violated <Article 4 of the collective agreement. The Grievw did not request relief other than a declaration, which we have given, that tie Employer breached the cbllective agreement. Accordingly, the grievance is allowed. Dated at Toronto this 2flti day of June, 1981. ,Maureen Saltman - Vice-Chairman “I l2oncur” A. Reistetter - Member “I concur” 6. Swirzman - llember