HomeMy WebLinkAbout1979-0090.Bickerstaff.80-02-12Between:
Before:
For the Grievor:
For the Employer:
Hearina:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLFCTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. George.Bickerstaff
Mr. Harold Turner (alternative)
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The Crown in Right of Ontario
Ministry of Government Services- :~
Professor K. Swinton ! Vice-Chairman
Mr. G. Griffin - Member
Mr. H.- Weisbach- - Member
Mrs.- L; Stevens-l- .--
Grievance Officer
Cntario Public Service Employees Union
Mr. R. Shepherd
Assistant Director
Personnel Branch
Ministry of Government Services
December lOth, lg7g
Toronto, Ontario
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This is a grievance in which George Bickerstaff and Harold
Turner claim that the employer, the Ministry of Government Services,
has incorrectly interpreted Article 14 of the Benefits Agreement
(October 1, 1977 to.September 30, 1978 - Ex. l), with the result
that they have received an incorrect amount as termination payment.
Mr. Bickerstaff,a painter by.trade, was hired-by-the Ministry
on June G, 1958 as a casual employee - that is, as part of the
unclassified service. He worked continuously, with a few short,
intermittent layoffs, until April 4, 1972. Mr. Turner, a Maintenance
Carpenter, was hired on May 16, 1957 on contract in Group I of the
unclassified service, and he worked on a series of person&l contracts
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until March 31, 1972. During that period, the~.employees-were-not--~
entitled to bank attendance credits.
In 1972, both men were offered positions in the classified
service (Ex. 4), and they filled out applications. They were accepted ~. .~~~~
and joined the civil service in April, 1972. ,. _
The impetus for the change in status arose from a downturn
in the construction industry. Prior to 1972, the government had employed
skilled tradesmen like the grievors on contract, paying them premium
rates above those paid to civil servants, in order to obtain skilled
services. After 1972, there was no need for premium rates in order
to obtain employees.'
The grievors continued as members of the classified service
until they retired in 1979, at which time a dispute arose as to the
proper method for calculating termination pay.
The outcome of their grievances depends upon the interpretation
of two subsections of Article 14, which read as follows:
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14.1 An employee who was appointed before the 1st day of
January, 1970 and who ceases to be an employee is
entitled to be paid an amount in respect of his accumulated
attendance credit for continuous service up to and including
the 31st day of March, 1978 in an amount computed by multiplying
half of the number of days of his accumulated attendance credits
at the date he ceases to be an employee by his annual salary at
the date he ceases to be an employee and dividing the product by
261. For the period from.April 1, 1978, the benefits described
under Article 14.4 shall apply.
14.3 An employee who is appointed on or after the 1st day of
January, 1970 is entitled to severance pay for each year
of continuous service up to and including the 31st day of
march, 1978.
(a) where the employee has completed one year of
continuous service and ceases to be an emp{oyee because
of,
(i) death,
(ii) retirement pursuant to,
1. section 17 of The Public Service Act, or
2. section 12 or 18 of The Public Service
Superannuation A&,~ or. ~~~~ - ~~~ ~_~ - -~~~- _,l;~__ .~_.~
(iii) release from employment under subsection 4 of
section 22 of The Public Service Act,
in an anmunt equal to one week of salary for each year of ,
service; or (b) where the employee has completed five years of
continuous service and ceases to be-an employee~for any
reason other than,
(i) dismissal for pause under section 22 of the Act, or
(ii) abandonment of position under section 20.of the- -~ -------.-
Act, -- ,.
in an amount equal to one week of salary for each year of service.
For the period from April 1, 1978, the benefits described
under Article 14.4 shall apply.
The Ministry argues that Article 14.1 applies, as Bickerstaff
and Turner were appointed prior to January lst, 1970 (that is, in
1957 and 1958). The union argues that Article 14.3 applies, as
the grievors were appointed after January Ist, 1970. The source
of their disagreement is the change in the grievors' status in
April, 1972 from the unclassified service to the classified service:
does "appointment" in Article 14 refer to appointment to the classified
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service or to appointment to the "public service" (as defined in the
Public Service Act, R.S.O. 1970, c.386, as am.S.0. 1972, c.1; 1972,
c.1; 2972,‘ C. 96; 1973, c. 85, s. l(g))?
To resolve this problem, it is necessary to look at the
interaction of various provisions of the Public Service Act, The -
Crown Employees' Collective Bargaining Act (S.O. 1972, c.67, as aZ*h
and the Working Conditions and Benefits Agreements (Ex.1). The Board ~.
has had occasion to do so on other occa~sions, in Mahmood and Corkectional
Services, 115/76; OPSEV and Ministry of The Attorney General (FitzsirimIons
and Vice), ,1/77; and Harris and
75/77. Unfortunately, these cases provide little assistance here, except
to help explain the interaction of the legislation and collective agreements.
The Benefits Agreement, in which Article 14 is found, is restriyted-d
in its application. Article 1.1 states:
ThP benefits ~described herein apply to all '~ ~~~ ~~~~~~~ --.'-
civil servants in the public service
bargaining unit represented by The Ontario
Public Service Employees union.(emphasis added)
The term "civil servant" is one which has.a technical meaning.
It iS defined in s. l(a) of The Public Service Act as follows:
"civil servants means a person appointed to the service
of The Crown by the Lieutenant Governor in CoUnCil On
the certificate of the Comission or by the Commission,
and "civil service" has a corresponding meaning.
Only "civil servants" can be appointed to the "Classified service",
which is defined in s.l(b) of the Act as follows:
"classified service" means the part of the public service to which civil servants
are appointed.
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In contrast to civil servants, there is another group of
government employees who are employed within the "unclassified
service". That term covers "the part of the public service composed
of positions to which persons are appointed by a minister under
this Act" (s.l(i)). The "public service" referred to in s.l(i)
encompasses both the classified and unclassified service (s. l(g)).
Since the grievors were only-appointed to the "civil-service!!.
as of 1972, the union has argued that Article 14.3 applies, and a
decision shouldbe rendered in their favour. If we were to agree to
such, an argument, it would be necessary to consider another important
aspect of Article 14: that is, the significance of the phrase
"continuous service" therein, a phrase also used in other provisions of
the Benefits Agreement,~ such as Article 8, Vacations~and Vacation--.~
Credit. It was mentioned in argument that the grievors received
vacation credits in accordance with that article as'if their continuous
service dated back to 1957 and 1958 respectively. While this practice
does not bind the Board in determining the meaning of Article 14, i,t
does vindicate the importance of considering the meaning of both the
phrase "continuous service" and appointment in Article 14. Specifically,
it is important to decide whether employees like the grievors can
receive benefits which are based on periods of service in the unclassified
service. Many members of the unclassified service, including the
grievors at one time, are not "employees" for purposes of The cro~r,
Employees' Collective Bargaining Act (s.1 (1) (g)(v) and (vi)). It is
necessary to .determine if they can acquire benefits (such as seniority credit)
for a period when they were not "employees". It is the Ministry's
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contention that they can do so under Article 14.1.
In order to understand the respective positions, it is necessary
to quote further from the l.egislation and the collective agreement.
The definition of "employee" under the crown Employees'
Collective Bargaining Act is'found in s. I(I)(g) and reads:
"employee" means a Crown employee as defined in The -
Public Service Act but doe% not include,
(v) a student employed during the student's
regular vacation period or on a co-operative
educational training program or a person not
ordinarily required to work more than one-third'
of the normal period for persons performing
similar work except where the person works on
a regular and continuing basis,
(vi) a person engaged under contract in a
professional or other special capacity,
or-for a project of-z non-recurring kind,
or~on~~a~temperary work assi@ment arranged ~~ .L
by the Civil Service Commission in
accordance with its program for providing
temporary help.
Thus, individuals such as the grievors,at one time, when employed on
special contract in Group 1 of the unclassified service (Public Service- --
Act, R.R.O. 1970, Reg. 749, as am.O.Reg. 870/77, S.S(l)), are not -
"employees"under The Crown Employees collective Bargaining Act
because of .s.l(l) (9) (vi).
'The grievers, at the time of their grievance had become "emp7oyees"
under the Act, and it will be necessary to consider the period of their
seniority. "Continuous service" is not defined in the Benefits Agreement.
It is defined, however, in Article.25.1 of the Working Conditions
Agreement in the following terms:
in employee's length of continuous service will
accumulate upon completion of a probationary period
of not more than one year and shall commence from:
(a) the date of appointment to the classified
service for those employees with no prior service
in the Ontario Public Service;.or
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(b) the date on which an employee commences a period
of unbroken full-time service in the public service,
immediately prior to appointment to the classified
service. "Unbroken service" is that which is not
interrupted by separation from the public service;
and "full-time" is continuous employment as set
out in the hours of work schedules for the appropriate
classifications.
It was argued by the union that "continuous service" in
Article 25.1 of the Working Conditions Agreement should not apply
to the Benefits Agreement, and should be,limited in its application
to job security, lay-off and promotion situations. Counsel argued
that continucus service in Article 14 referred only to service as a
civil servant-thatiis, from 1972 for the grievers.
Counsel for the employer did not focus on Article 25, but
~instead~referred to s.68(d) of.the Regulations under The Public
.service Act (R.R.o. 197O,Reg.749, as am.O.Reg. 870/77). There,
"continuous service" is defined as-follows:
"continuous service" includes exy unbroken
- period of full-time service in the public
service immediately before last appointment
as a civil servant.
That provision must be read with caution, however, for s.29(3) of
The Public Service Act provides that a provision in a collective
agreement which conflicts with the provisions of a regulation
wills override the regulation. Section 68(d) is found in a definition
section under Part VI of the Regulation, entitled "Benefits". That
part deals with many of the same items as those found in the Benefits
Agreement, for example, termination payments in s.89. Therefore, in
light of s. 29(3) of the Act, it is necessary to read the definition
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in s. 68(d) in context, as well as to look at the collective agreement,
to see whether there is any conflicting provision regarding continuous
service which is appli,cable to the Benefits Agreement and so overrides
s.68(d).
It is difficult to accept the union's argument that Article 25.1
of the Working Conditions Agreement should not affect the interpretation
of Article 14. The Board was referred to Article 1.1 of the Working
Conditions Agreement by the union for an explanation of the scope
of the "public service bargaining unit" mentioned in Article 1.1
(Application) of the Benefits Agreement, thus showing the interrelationship
of the agreements. The unit in the Benefits Agreement is determinable
from the Recognition Article (l.L) in the~~Working Conditions Agreement:
1.1 In accordance with The Crown Employees Collective
Bargaining Act, the &tario 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 g of subsection
. . 1 oft Section-l-of The-Crown Employees~Collective~Bargaining
Ad.
The Benefits Agreement does cover a smaller group than does
the Working. Conditions Agreement (i.e., only civil servants and not
the limited number of seasonal or temporary employees in the
unclassified service covered by Article 3 of the Working Conditions
Agreement). Nevertheless, the two agreements should be read together,
since they are drafted by the same parties to cover largely the same
group of employees. Therefore, Article 25.1 of the Working Conditions
Agreement.should assist in the interpretation of Article 14 of the
Benefits Agreement.
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With that conclusion, it is necessary to determine the meaning
of both the term "appointed" and the term "continuous service" in
Article 14 of the Benefits Agreement. That article contains different
methods for calculating termination payments depending on the date of
appointment of the employee. Those appointed prior to 1970 use a
method based on attendance credits, because members of the classified
service were then allowed to bank attendance credits. After 1970,
this system apparently changed and consequently, so has the method
for calculating termination payments.
The grievors, while member,? of the unclassified service, did
not bank attendance credits,.and the.union argues that it would be
inequitable now to reduce their termination payment by treating them
under-Article 14.1. The Board would-agree that the grievors fall within
Article 14.3, rather than Article 14.1. The Benefits Agreement
applies only to civil servants, and significance must therefore be given
to the word "appointed" in Article.14. This must mean appointment to the
civil service, which in the grievor"s case is April, 1972. OPSEU does
not bargain for many of those in the unclassified service, for they are
not "employees" within the meaning of "employee" in The Crown Employeei
Collective Bargaining Act (s.l(l)(y) (v) and (vi)). TO Comply with that.
Act and with Article 1 of the Benefits Agreement, the phrase, "an employee
who is appointed", must refer to an employee within the meaning of the
crown Employees Collective Bargaining Act and only one who is appointed
to the civil service.
This interpretation is harmonious with the apparent purpose of
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Article 14, which is designed to benefit long service civil servants
who have established a bank of sick credits, treating them differently
from those who were appointed under a different system. It would be
inequitable to include the grievors under Article 14.1 when they were
not accumulating sick credits for the period referred to in
Article 14.1.
The employer has mentioned that the grievers. received vacation
credits dated back to their period in the unclassified service. This
may suggest that the grievers are adopting a "supermarket approach"
to ,the collective agreement, seeking to interpret clauses in the most
advantageous way. The Eoard need not determine the grievors' entitle-
ment to vacation&edits.-here?Two points-must be explored; however;
First, it should be noted that Article 14 specifically deals with
appointment date, unlike Article 8 dealing with vacation leave. As
mentioned above, this must mean appointment to the classified service
because of the structure of Article 14.
Secondly, a determination must still be made as to the meaning
of continuous service in Article 14.3. It was concluded earlier that
the definition in Article 25.1 of the Working Conditions Agreement
should govern (quoted su[?ra, p. 6). This leaves the problem whether
the union can bargain for seniority provisions which include a period
of service outside the bargaining unit and, if so, whether the union
has bargained to achieve that end under the collective agreement.
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The Board has never dealt directly with this issue. In the
case of Mahmood end i?inistry of Correctlonal Services (115/76),
Professor Beatty discussed a related issue concerning the ability of
an employee to credit a period of service in the unclassified service
(when the grievor had not been an "employee" under the Act) to the
-'period of probation in the classified service. In deciding that the
grievor could not do so, Professor Beatty focussed on the purpose
of a probation period as a time of assessment, as well as the particular
wording of !I?IO Public Service AC t and the collective agreement at the
time. He rejected an analogy to cases in the private sector in which
managerial employees are allowed to.accumulate seniority for the period
in which they are outside a bargainingnicnoting that such decisions
turn on the wording of the collective agreement (p.15).
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The grievors here are in a position-where they are now "employees"
and in the bargaining unit, and they are seeking to draw on their
service outside the bargaining unit to obtain benefits. Article
25.1(b) allows individuals to obtain seniority credit for at least
some periods in the unclassified service, referring to "unbroken,
full-time service in the public service, immediately prior to
appointment to the classified service." There are two possible
interpretations of these words. First, one could argue that this
clause refers to full-time service as an "employee" (under s.l(1)(g)
of The Crown Employees' Collective Bargaining Act). Thus, it would
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be restricted to service in the bargaining unit and would not include
those outside the definition of "employee", such as the grievors, who
were excluded by s.~(I) (91 (vi). Alternatively, it could be argued that
the phrase refers to any period of unbroken, full.-time employment in
the public service, whether or not the individual was then in-the
1 bargaining unit or eligible for collective bargaining.
Cases are of.jittle assistance in determining this question.
In Re Espanola General Hospital. am? CUPE (19?5), 9 L.A.C. (2dl 36 lO'Com~t,
a managerial employee transferred to the bargaining unit was held to
retain his seniority and was not required to undergo a prcbationary 1
period. Professor Beatty~in the M.&XTTJO~ case has shown the inapplicability
of the ~spanola case under this collective agreement because of the specific.
wording regarding probation.
Of.more assistance is the Gabriel of Canada Ltd. case (1967),
18 L.A.C. 373, in which Professor Palmermade an effort to harmonize
the cases dealing with acquisition of.seniority by employees outside of
the bargaining unit. Noting that the parties can give credit to
individuals for their service outside the bargaining unit, he emphasized
that the issue turns on the terms of the collective agreement, with
ambiguities determined in favour of the individual's rights rather
than the group's rights (at 380).
A final case which may provide some assistance is the westeel -
ROSCO Ltd. case (1969), 20 L.A.C. 202 (Weatherill), in which employees
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whose seniority "shall date back to his last date of hire" acquired
seniority for service to the employer in another plant outside the
bargaining unit (at 209).
The Westeel-Rosco case is the closest one to the present case,
for here the grievors also seek credit for continuous service to the
employer for a period in which they were not members of the bargaining
unit. As the Gabriel case shows, the parties can give credit for
service outside the bargaining unit. In interpreting a collective
agreement, it is to be assumed that parties take into account the
trend in arbitral awards and 'are aware that arbitrators do recognize
efforts to give credit for service outside the bargaining unit, as -.-.- ~--: ~~
we13 as treat ambiguities in language in the employee's favour
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rather than that of the group. The.present Article 25.1(b) has two
possible interpretations, mentioned-earlier. To conclude that con-
tinuous service refers to full-time service in the unclassified service,
even outside the bargaining unit, would be consistent with the
direction of most arbitral awards. It would also give significance to
the change in wording in the seniority provisions in Article 25.1 since
the mhmood case (supra). The parties have now explicitly referred
to acquisition of seniority by those employed in the public service,
whereas in the 1976-1977 collective agreement, certain public
servants in the bargaining unit (those exempted from the s.l(l)(g)(v)
exclusion in the Act) were explicitly denied seniority for their
period in the public service (Article 3.4.3.). Other public
servants in the bargaining.unit were not mentioned. Eoth groups of
public,servants in the unit are now explicitly covered by Article 3, and
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Article 3.6 makes the seniority provisions in Article 25 applicable to
them. If they work full-time and in unbroken service, they can acquire
seniority based on their period in the public service. <
Therefore, in light of past cases and the change in the collective
agreement, it can be concluded that the parties intended that employees
like the grievors should be able to backdate their continuous service,
for purposes of calculating termination payment, even though this period
was served outside th,e bargaining unit. As in the Gabriel case, any
ambiguity in Article 25.1 is interpreted in the individual's favour.
It was noted in argument that this decision will affect a
relatively small group of employees, since many of the employees in
the unclassified service were allowed to bank attendance credits during
that period.
We would conclude that the grievances should be allowed. The
termination payment is to be calculated according to Article 14.3 of
the Benefits Agreement because the grievors were appointed to the
civil service after January lst, 1970. Their "continuous service"
will include any period of full-time,,unbroken service in the unclassified
service prior to their appointment to the classified service in
April, 1972. The Board will retain jurisdiction to determine any . .
prcblems in calculating the compensation due pursuant to this award.
Dated at Toronto this 12th day of February, 1930.
i%oressor Katherine Swlnton-Vice-Chalnnan
I concur
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