HomeMy WebLinkAbout1983-0089.Roy.83-12-30‘\
ONTARIO \ CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OPSEU (Miles M. H. Roy)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
_ Employer
P. J. Brunner Vice Chairman
T. Traves ,Member; .
G. Peckham Member
P. A. Sheppard Grievance Officer
Ontario Publics Service Employees Union
J. F. Benedict
Manager, Staff Relations
Personnel Branch Ministry of Correctional Services
October 28, 1983
.
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DECISIOH
-This is a grievance dated January 10, 1983, brought by
Miles M. H. Roy, who is employed as a Correctional Officer (Level 2)
by the Ministry of Correctional Services (hereinafter referred to
as the Employer) at the Toronto West Detention Centre, in which
he alleges that the Employer contravened Article 46.7 of the
Collective Agreement with the Ontario Public Service Employees
Union (hereinafter referred to as the Union) in refusing his
request for vacation for a period commencing in the month of
March, 1983.
At the opening of the hearing the Employer raised a
preliminary objection as to the jurisdiction of the Board,
submitting that the matter of scheduling of vacations was an
exclusive Employer function and accordingly not arbitrable
under either the Cnown Emp.toyeen CO.!k2ctiue Bahgaining kk,
R.S.O. 1980, ch. 108, or the Collective Agreement between
the Employer and the Union.
We are all of the opinion that the preliminary objection
fails and that we have jurisdiction to hear and determine the
subject grievance.
Article 46.7 of the Collective Agreement reads as follows:
"46.7 An employee vlth over six (6) montha of
continuous service may. with the approval of the Deputy Minister, take vacation to
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the extent of his vacation entitlement
and his vacation cradite shall be reduced
by any such vacation taken. For thi.6 purpose,
an employee may include any continuous service
as an employee in the Public Service Of Ontario
immediately prior to his appointment to the
civil eervica.”
It is agreed that Roy is an employee with over six
months of continuous service and it is further common ground
that the Deputy Minister did not give his approval that Roy
take his vacation during the requested period in March, 1983.
The position of theEmployer is-that the matter of
scheduling vacations, is an exclusive Employer function and
that the Deputy Minister has the right to give or withold
approval as he may deem proper in the given circumstances.
The Union on the other hand contends that while the
matter of approval is one within the discretion of the Deputy
'Minister, it is a discretion which is not unfettered but one
that must be exercised Within reasonable limits.
In our view, these opposing views of the parties
constitute a difference “arising from the interpretation,
application, administration or alleged contravention of the
Collective Agreement" within the meaning of Article 27.1 Of the
Collective Agreement and accordingly the grievance, having been
prJperly.processed under Article 27 , is one that falls within the
jurisdiction of the Board. In this connection,. reference was
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made to the decision of the Board in Debotih A. Rivead, 310/82,
where theBoard, under the aegis of Professor R. J. Roberts,
reached a similar conclusion with respect to the difference
between the parties as to the proper interpretation of Article
46.5 of the Collective Agreement. However, in that case, the
Board expressed the opinion that the scheduling Of vacations
was an exclusive Employer function under the CXown EmpfOyeeh
Co.t.Lec.tive Eahgaining k2.t.
With the greatest of respect for the panel of the Roard
which dealt wit> that case, this view is contrary to the express
provisions of both Section 7 and subsection 18(l) of the Act. Sesction -
7 authorizes the Union to bargain with the Employer, inter alia, .snd
excepting therefrom matters that iire exclusively a function of the
Employer under rrlbsection 18(l), with respect to "paid
vacations".
Subsection 18(l) on the other hand, stipulates
that every Collective Agreement shall be deemed to provide that
it is the exclusive function of the Employer to manage, which
function, without limiting the generality of the foregoing,
includes the right to determine a number of matters, but not,
even on a broad view, "paid vacations". In any event, the
matter having been expressly covered by Section 7, cannot 'fall with-
in subsection 18(l) and is not an exclusive Employer function
in view of the absence of such a provision in the Collective
Agreement.
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There being no exclusive management rights.clause in
the Collective Agreement before us, cases such as Re Uuniciripz fieity
06 Me.tkopotiaiIn To&onto and Tohonto Civic Emp.!oyeeA fhion,
Lccae 43 et ok!, (1975) 62 D.L.R. (3d) 53 (Div.,Ct.) and decisions
of the Grievance Settlement Board , such as the Su&&van case,
578/81, are not relevant and need not be considered.
.For these brief reasons, the preliminary objection is
dismissed and the Registrar is requested to list the matter for
hearing on its merits; which in accordance with the request Of
the parties, was not dealt with at the hearing on October 28,
1983.
DATED at Toronto this 30th day of December, 1983.
p . J. rRmN.P , VICE CHAIRMAN
/ G ECKHAJ4, MEMBER