Loading...
HomeMy WebLinkAbout1979-0191.Sysiuk et al.80-05-20File No. 191/79 THE CROW4 EMPLOYEES COLLECTIVP BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BO.ARD IN THE MATTER OF AN ARBITRATION BETWEEM: W.T. SYSIUK, S.W. POWELL AND D. MILLER, Grievors THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF NATURAL RESOURSES), Employer BEFORE: '3.F.W. Weatherill, Chairman E.R. O'Kelly, Member J. Smith, Member For the Grievors: L. Stevens,counsel, Ontario Public Service Employees Union For the.Employer: C.G. Riggs, counsel Heard at Toronto, April 1, 1980. ._ DECISION There are before the Board three grievances, each dated July 9, 1979, claiming payment of retroactive salary increases. The grievances are similar in form although varying somewhat as to the periods of time for which payment is claimed. There is no dispute as to the facts. Messrs. Miller and Sysiuk are classified as Resource Technician 1, and Mr. Powell's grievance states that he is a Biological Technician. All are employed in the Fish and Wildlife section of the Ministry and are on the "unclassified staff". They have worked for the Ministry from time to time on a "contract" basis. They are Crown employees, but they are not civil servants. They are employed in the Technical Services category, or at least their work is equivalent thereto. On April 24, 1979, an agreement was entered into between Management Board of Cabinet, representing the Crown (that is, the employer) and the union. This agreement was in respect of employees in the Technical Services category. The agreement was for a term of one year, from October 1, 1978 to September 30, 1979. Article 2(a) of theagreem.entprovided for a salary increase for "all classifications in this category", effective -3- October 1, 1978. Article 3 of the agreement provided as follows: The salary increase set out in 2(a) above shall be retroactive and payable from October 1, 1978, on a full or pro rata basis, to all employees who are or were in this category and shall apply to all overtime worked. Each of the grievors had been in theemployee of the ministry during the period from October 1, 1978 until April 27, 1979, although none of them had been employed throughout that period. In each case, there had been a "break in service" and the employee had then been re-hired subsequently, always on the "unclassified" staff. It would appear that, from and after April 24, 1979, they were paid the increased rate applicable to the classification in which they worked. That would, we think, be proper, pursuant to article 3.2.1 of the "working conditions" collective aqree- ment. It also appears that a retroactive payment was made to each of the qrievors in respect of the time worked from his most recent hiring until April 24. No retrOa.Ctive pay- ment was made to the qrievors, however, in respect of previous employment in the period following October 1, 1978. It is such payment that is now claimed. -4- The employer's position is that no retroactive payment at all is owing to the qrievors pursuant to the agreement of April 24, 1979. Indeed the payment made to them in respect of the period since their most recent hiring and April 24 was ex gratia, and need not have been made at all. - The agreement, it is said, makes no mention of the unclassified staff, and so simply does not apply to them. We are unable to accept this contention. The rights negotiated for employees are incorporated in a number of documents having the force of collective agreements. The union is bargaining agent for employees in, amonq others, the Technical Services cateqory, and represents both classified and unclassified staff. The collective agreementsapply to the unclassified staff, although there is no doubt that such application is limited. Thus, article 3.1 of the "working condition" collective agreement provides as follows: 3.1 The only terms of this Agreement that apply to employees who are not civil servants are .those that are set out in this Article. Article 3 then makes certain provisions relating to wages, -5- holidays, vacation pay, attendance credits and sick leave, overtime, health and safety, O.H.I.P., bereavement leave and union dues. It also incorporates by reference a number of other articles including, inter alia, the -- grievance procedure and the article ;elating to the term of the agreement. The article relating to wages is as follows: 3.2.1 Wages The rate of the equivalent civil service classi- fication shall apply. If there is no equivalent classification, the rate shall be set by the Ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations. In the instant case there is no suggestion of any difficulty in determining the "equivalent" rate to which the qrievors were entitled. The only question is as to the ret,&-oactive application to the grievors of the rate negotiated and set out in the April 24, 1979 agreement. It may be added that no question was raised as to the "appropriateness" of the salary negotiations and that there was no suggestion that there had been any other -6- negotiations with respect to the salaries of persons in the I qrievors' position. Indeed, there would appear to be no scope for such negotiations without a specific agreement in that respect. The collective agreement applies to "all public servants" subject to certain exclusions which are not material here. There are in fact somewhat different sets of substantive provisions applying to those employees who are civil servants and to those who, like the grievors, are not. The salary provisions affecting those who are not civil servants are, as we have seen, related to those for civil servants by way of "equivalence". Reference must, therefore, be made to the "Technical Services" agreement, which sets out the salary rates for the various classifications in that category, in order to determine the salaries payable not only to classified personnel, but also to unclassified staff. The salaries negotiated for the classified were, thus, negotiated for the unclassified staff as well: that is clear from the structure of the group of agreements to which we have referred. There is a "master agreement" covering "all public servants" (including those on the unclassified staff, and subject to certain exceptions not here material, as we have noted), and whose substance is simply the incorporation by reference of -7- certain other agreements, notablv (for the purposes of this case) the "working conditions" agreement and the "Technical Services Category" agreement, which sets out the salaries for the various classifications in that category but which in effect (by virtue,of article 3.2.1 of the "working conditions" agreement), establishes the salaries for the unclassified staff as well. When, on April 24, 1979 the parties agreed to certain terms "in respect of the Technical Services Category" they agreed, as we have seen, to a general salary increase "to all classifications" and (in article 3, set out above), to the retroactive payment of such increase "to all employees who are or were in this category". In our view, the parties must be taken to have been harqaininq in respect of all employees in that category of the bargaining unit. Those are the persons who had been covered by the agreement, and there is nothing to suggest any agreement to exclude any group which had up until those negotiations took place, been included. Article 3 of the new agreement does not provide expressly for retroactivity to either the classified or the unclassified staff: it provides for retroactivity to employees in the category. Naturally, the increases provided -8- for in article 2(a) of the agreement are increases to the "classifications" in the cateqoiy, because that is what the system of salary payment - both to classified and un- classified staff -requires. There is, however, no limitation of scope, either express or implied, in the retroactivity provision set out in article 3 of the agreement. In our view, the benefit of that provision applies as much in the case of the unclassified as the classified staff. In the instant case, it is our conclusion that the grievors were entitled to retroactive salary increases in accordance with article 3 of the agreement of April 24, 1979, as claimed. The grievances are therefore allowed. DATED AT TOROMTO, this ,('! ,','j(rlay of May, 1980. Member.