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HomeMy WebLinkAbout1982-0412.Holwerda.82-10-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: Before THE GRIEVANCE SETTLEMENT,BOARU OPSEU (Amelia J. Holwerda) For the Grievor: For the Employer: Hearing: Grievor - And - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer J. W. Samuels Vice Chairman B. Switzman Member E. R. O'Kelly Member A. E. Golden,! Q.C. Counsel Golden, Levinson Barristers & Solicitors N. Robinson Staff Relations Officer Staff Relations Section Civil Service Commission October 7, 1982 . .i -2- Th’is grievance concerns the rate of pay of the griever when she was reclassified from a managerial position outside the bargaining unit back to .a Clerk 4 General within the bargaining unit. This occurred on March 17, 1982. At that .time, the salary range for the managerial classification (CCL 11) was $16,550 i $19,300, and the grievor was being paid $18,300. On March 17, 1982, the salaryrange for Clerk 4 General was $16,791-$19,100. When she’was moved to the managerial position in 198i, the grievor L was at the,maximum for Clerk 4 General. Now, she claims that, upon her return, to Clerk 4 General, she should again be paid at the maximum for this classification. Y In .fact, the grievor remained at $18,300 until May 1, ich is her anniversary date), when she received a merit and her salary became $18,925. On July 1, 1982, the sa 1982 (wh increase lary range’for Clerk 4 General moved to $17,274-$19,583. The grievor was moved to $19,583, the maximum. The Ministry paid the grievor as it did because of its interpretation of Article 5.4 in the Collective Agreement. This .\ article provid’es: Where a position is,reassessed and-is reclassi- fied to a class with a lower maximum salary, any employee who occupies the position at the time of the reclassification shall continue to be entitled to saiary progression based on merit to the maximum salary of the higher classification, including any revision of the maxinum salary of the higher classification that takes effec’c during .~ the salary cycle in which the ‘reclassification takes place. ’ 1 i . -’ 3 - As can be seen, the article provides for “red circling” the salary of an em:ployee when there is a reclassification to a class with a lower maximum salary. Thesalarythen moves within the range of the higher classification for an unspecified period of time. In the Ont,ario Manual of Administration, this situation is dealt with as follows in the Policy on Pay Administration: A civil servant is afforded-salary protection as follows where he is occupying a position: i) wherein duties are changed due to re- organization, ii). wherein duties are changed due to re- / assignment of duties; or iii) which is re-assessed, with the result of re-classificationtoa class with a lowerayalary maximum than his previous classification: Such a civil servant: - Will retain his existing rate of p.ay - Will retain his existing anniversary date, - Shall continue to be entitled to salary progression based onmerit, to the maximum salary of the higher classification, including any revision of the maximum salary of the higher classification.that takes effect during the salary cycle in which there-classificationtakes,place. - Will not be eligible for further salary progression until such time as the maximum rate of the new classification exc.eeds his sal~ary rate. - May then proceed to the’new‘maximum rate effective the date of the change to the salary range. (Emphasis Added) Based on the underlined language, the Ministry moved the griever’s rate of pay out of the salary range of the higher/ classi- fication only when the salary maximum for Clerk 4 General moved above the maximum for CCL 11. It is clear that the “red-circling” provision was meant to protect .employees against a drop in pay when they are reclassified .i to a lower classification. That is why the policy. speaks of ‘“‘salary protection.” The issue is whether the mechanism in Article 5.4 must be applie,d even where to do so would reduce the salary which / might otherwise be paid. In our case, the grievo.r was at the maximum for Clerk 4 General when she was moved into management. Apart from the Ministry’s application of Article 5.4, it seems reasonable to expect that she would have: returned to the maximum for Clerk 4 General upon her return to the classification.. However, based on its interpretation of Article 5.4, the Ministry retained the grievor in the salary scheme for CCL 11 until the maximum salary in Clerk 4 General moved higher than the maximum for CCL 11. In my view, the Ministry’s application of Article 5.4 was incorrect. The provision is meant to protect employees from a dr.op in salary when they are reclassified to lower positions. In suchacase, an employee is “entitled” to be red-circled. It is notmandatory for the employee. If it is not advantageous to be red-circled (that is, if the ~employee is not in need.of the pro- tection afforded by the provi,sion)~, then the provision does not apply. ,It will be the rare case when ti reclassification to a lower position will mean the possibility of a higher ~salary. But in such a case, and we have one here, the red-circling provision should not be applied. . . _ -5- In the result, the grievance is allowed. From March 17, .1982, the grievorshould have been paid as a Clerk 4 General at the maximum. We reserve our jurisdiction to deal with the precise compensation to be paid to the qrievor, if the parties are unable to agree on this themselves. Done at Lond,on, Ontario, this “day of oG&A, 1982.. B. Switzman, Memb%r (see attached dissent) E.R. .O’Kelly, Member 8: 1200 5: 2440 DISSENT RE: A. Holwerda 412/82 I find I am unable to agree with the.Chairman's award in this case. In my view,, the transfer on March 17, 1982 was correct. .The grievor retained her salary rate of $18.300 per annum which was within the salary range for a CCL II, the higher classi- fication, and it was also within the salary range for the Clerk IV General. There was no obligation on the employer to consider an increase prior to the grievor's anniversary date of May 1, 1982. Effective May 1, 1982, the grievor's salary was increased to $18 925, based on the employer's view of the correct position she was entitled to in the rate range for.a CCL II. However, at 'this review I feel the employer could also have considered where she should be in the rate range for a Clerk IV General and should have placed her at the maximum for that range-- $19 100, per annum. She would then move to the new maximum of $19 583 for Clerk IV General on July 1, 1982, as in fact happened. E. R. O'KELLY .'