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HomeMy WebLinkAbout1985-0438.Haley.87-10-20IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOY&ES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Dawn Haley) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: For the Employer: Hearing: I.C. Springate Vice-Chairman J. Solberg Member G.J. Milley Member N. Roland Counsel Cornish & Associates Barristers & Solicitors J. Hannah Senior Staff Relations Officer Ministry of Correctional SerViCeS nay 4, 1987 -l- DECISION This case deals with the proper calculation of the grievor's salary following her pranotion. The collective agreemant ensures that an enployee who has been prmoted will receive a salary rate at least three percent hi&er than she received in her previous position. The employer calculated the grievor's new rate ufilizing hcurly rates of pay. In that the grievor was nmf working fewer hours than before , she suffered an actual reduction in her weekly salary. At the tine she was pramted, 'managerrent advised the grievor that her new salary wculd be readjusted once an expected retroactive wage increase was inplenmted. When the increase was inplenented, ho.?ever, the employer recalculated the grievor's wage and'concluded that she had been overpaid. In the result, the ~grievor suffered yet another reduction in her weekly salary. The grievor alleges that the manner in which the employer calculated her salary was in violation of the collective agreesent and that at the tine of her prmotion she was entitled to receive an actual increase in her weekly salary. Prior to the events giving rise to these proceedings, the grievor was employed as a Ccrrections Officer' .2 at the Metropolitan Toronto East Detention Centre. In this position she was paid at the hourly rate of $12.94 for a 40 hour work week, resulting in a regular weekly salary of $517.60. On October 1, -2- 1984 the employer posted a bulletin inviting applications for 'the position of Coordinator, Temporary Absence Program. The successful applicant would ba classified as a Rehabilitation Officer 2. The Mlletin contained the follmihg information with respect to the successful applicant's salary and working hours: Salary: $465.73 - $532.19 par week under review Schedule: 3.7 The reference to schedule 3.7 indicated that then successful applicant wcxlld be working 36 and a quarter hours per week. The grievor applied for the position and on November 2, 1984 was advised that she was the successful candidate. The Rehabilitation Officer 2 classification has a higher mximm salary than does the Corrections Officer 2 classification. Having regard to Article 5.2.1 of the collective agreemantr which is set out bslcw, the grievor's new position clearly involved a prcmvtion for her: 5.2.1 h-emotion occurs when the incusbent of a classified position is assigned to another position in a class with a hi&er neximm salary than the class of his former position. r3- Article 5.2.2 deals with the salary of enployees who have been PromSted as follms: 5.2.2 An errploy+? who.is pranoted shall receive that rate of pay in the salary range of the new classification which is the next hi#er to his present rate of pay, except that: - where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again, which amount will be considered as a oneSteP increase. - a prmotional increase shall not result in the eaployee's new salary rate exceeding the maxim of the new salary range except where permitted by salary note. T& grievor's nsw salary was calculated by Mr. Peter Bud, at the tins an assistant regional personnel a&ninistrator with the Ministry of Correctional Services. He performad his calculations using only hourly wage rates. Althou& the grievor was being paid pursuant to the 1984 rates for enployees in the Corrections Officer 2 classification, the 1984 rates for euployees in the Rehabilitation Officer 2 classification had hot yet been set. Accordingly, Mr. Buds utilized the 1983 Rehabilitation Officer 2 rates in his calculations. Mr. Buck curarenced his calculations by adding 3 percent to the grievor's $12.94 hcurly rate as a Corrections Officer 2, which produced a figure of $13.32. He then canpared this figure to the 1983 wage schedule for exployess in the Rehabilitation Officer 2 classification. The lowest hourly wage -4- step in the schedule which exceeded $13.32, was step 3 tiich paid $13.73. Mr. Buck concluded that this was the anount the grievor should be paid on an hourly basis. He then calculated her weekly salary at $497.85, which was $19.75 lclxrer than her previous salary of $517.60. Mr. Buck telephoned the grievor on November 13, 1984 and advised her that effective iarnadiately she was being reclassified as a Rehabilitation Officer 2 with a weekly salary of $497.85. The grievor was also advised that once the 1984 rates for the Rehabilitation Officer 2 classification were established, her salary would bs readjusted. The grievor testified that she was not pleased to learn that her weekly salary wculd be decreased, tut nevertheless accepted the pronotion, in part because the Rehabilitation bfficer 2 rates were due to be increased. For a tine the grievor continued to be paid her previous salary. Sutseguently, hmever, she was required to reimhrrse the excess to the emplayer. In February 1985 the new rates ware set for the Rehabilitation Officer 2 classification. The new rates were nsde retroactive to 1984. The first step in the Rehabilitation Officer 2 wage schedule new paid $13.49 per hour. This was greater than the $13.32 figure Mr. Buck had obtained by adding 3 percent to the grievor's salary as a Corrections Officer 2, but less than the $13.73 rate he had calculated that she was entitled to receive on the basis of the -5- 1983 wage schedule. In the result, Mr. Buck concluded that the grievor's hcurly rate should drop to $13.49, and her weekly salary to $489.02. When this change was inplensnted, the grievor suffered the second reduction in her weekly salary since her praaction. She was again required to reimburse the enployer for the excess amwnts she had already received. Mr. Buck testified that in performing the calculations set out above, he followed what he understood to be the procedures required by the Ontario Manual of Administration. The governing documnt in these matters, however, rust be the collective agreenent between the parties. There is nothing in the evidence to indicate that the union expressly or by iaplication agreed to interpret the collective agreemant in accordance with the provisions of the Manual of Administration. We are not aware of any Board cases directly on point with the issue before us. There are, hmever, two Board awards which deal with sonswhat analcgous situations. The first is Lee 103/85 - (Sarmels). That case dealt with an wloyee whose position had teen abolished, in consequence of which she was assigned to a new -6- position pursuant to the provisions of Article 24 of the collective agreemnt. Whereas in her fonm- position she had worked 40 hours per week, her new position involved a 36 and a quarter hour work week. Article 5.5.1 of the Collective Agreemnt provides for the "red circling" of employee wages in this type of situation: 5.5.1 Where, because of the abolition of a position, an enployee is assigned: (a) fran one position in a ministry to another position in the sama ministry, or (b) frm a position in one ministry to a position in another ministry, and the position to which he is assigned is in a class with a lmer mxinum salary than the maxima salary for the class of the position frm which he was assigned, he shall continue to be entitled to salary progression based on nrarit to the mximnn salary of the higher classification including any revision of the maxim salary of the higher classification that takes effect during the salary cycle in which the assigrment takes place. The exployer paid the employee her previous hourly wage rate, hit only for 36 and a quarter hours, resulting in her receiving a lower weekly salary. The enployee claimad that she was entitled to receive the sam weekly salary as when she worked 40 hours per week. The Board agreed, reasoning as follows: In cur view, one aqht to read Articles 5.5.1 and 24 literally. What is being preserved is the enplayee's "salary", not the "rate of salary". The Parties have demonstrated their acknmledgemnt of the difference between these two terms, by using the words "hcurly rate" -7- elsewhere in the agreement--for instance, Articles 3.2.1, 3.3, 3.4.1 and 7.7. This latter provision is important for us: where the Enployer intends to transfer enployees or anenplayee franone Schedule to another schedule, the Enployer will discuss the transfer With the Union prior to Such transfer. When the transfer occurs, the enplcyee's weekly salary based on his basic harly rate shall be adjusted accordingly. Here the parties speak of the "weekly Salary based on his basic hcurly rate". In Articles 5.5.1 and 24, the parties speak sinply of "salary". "5alaW" mans "fixed payment made by e@oyer at re lar intervals" (The Concise Oxford Dictionary (New %tion 1982)). We conclude that, under Article 5.5.1 of the collective agreerrent, the grievor was entitled to have her "paynmt made by explcyer at regular intervals" red-circled. It is the payment itself which is protected, not the hourly rate used to calculate that payment. The second award dealing with a somewhat analcgous situation is OFSEU 1383/85 (Verity). That case involved a number of arployees who had been declared surplus. Article 24 of the collective agreement provides that a qualified surplus errployee is to be assigned to a vacancy provided the maxim salary for the vacancy is not greater than 3 percent above, nor 20 percent telcw, the maxim salary of his current classification. The emplayer utilized the relevant hourly wage rates to conclude that the employees were not entitled to be considered for certain vacancies. Had the calculations been performad utilizing weekly salaries, hmever, the employees wmld have teen entitled to be considered -8- for the vacancies. The Board was of the view that this latter approach was the one the enployer should in fact have utilized, reasoning as follcnus: In cur apinion, the term salary is enplayed by the Parties in 24.2.1 in the ordinary maaning of salary as a fixed paymnt made by the Enployer at regular intervals - be those intervals weekly, mnthly, quarterly or annually. Basic hourly rate is not a salary. Rather, it is a conponent of salary as are hcurs of work. These two ccsponents cmbine to establish a salary over a regular pay period. It is fmn salary that deductions for such items as incoma tax, pension benefits and other deductions are taken. Clearly, deductions are not taken fran a basic hourly rate. In numrous provisions of the Collective Agreement, the Parties have specifically ezplqed the phrase "basic hourly rate". See for example Article 11 (Shift Premium); Article 13 (krtkre); Article 14 (Call Back); Article 15 (Stand-By Tire); and Article 19 (Holiday Paymant). Had the Parties intended that salary as specified in Article 24.2.1 meant "basic hourly rate", they wculdhave so stated. In Article 7 entitled "Hairs of Work", the Parties use the terminology "the enplayee's weekly salary based on his basic hourly rate" in Article 7.5. The same wording is used again to in Article 7.7. Bad the Parties intended that concept to apply to the provisions of Article 24.2.1, similar if not identical,lahguage would have been inserted. In the result this Grievance mst succeed on the central issue. In the circumstances, we find that the Employer erred when it failed to consider Residential Life Camsellors for vacancies at the Clerk 3 General level fran the standpoint of salary eligibility. The Board shall remin seized of all other issues in dispute failing resolution by the Parties. -9- In both of the awards referred to above, the Board concluded that weekly salaries, and not hourly wage rates, were the relevant criteria to be utilized when interpreting collective agreensnt provisions designed to protect enployee inm and job security. The purpose of Article 5.2.2 is not sinply to protect an employee's inccma, but to ensure that an employee who has been prawted receives a financial reward. In cur view, this objective is best achieved by ensuring that there is an increase to the arployee's weekly salary, as opposed to her hourly pay rate. The actual terns used in Article 5.2.2 are "rate of pay in the salary range" and "salary rate". As noted in the OPSEU case, an &ployee's hourly rate of pay is not her salary, ixt rather along with her hours of work it is one of the factors that determines her salary. Roberts' Dictionary of Industrial Relations (The Rureau of National Affairs Inc., 1971) defines the term "salary rate" as "The actual annual, monthly or weekly rate for a particular type of salaried errploynmt." Given these considerations, as well as the purpose of Article 5.2.2, namaly to ensure that a prmoted employee receives a financial reward, Article 5.2.2 logically refers to the salary received by an enployee on a weekly basis. It follcm that at the tima of her pranotion the grievor was entitled to an actual increase in her weekly salary. Raving regard to this conclusion, we direct the enployer to recalculate the amount of the grievor's pay, and to cgnpensate her for any shortfall. - 10 - The Board will remin seized of this rratter in the event the parties experience diffimlties with the inplemntation of this award or disagree as to the ammnt of cmpeffiation payable to the grievor. Dated at Mississauga this 20th day of October, 1987. I.C. Spr'ingate Vice-Chairman J. Solberg Member G.J. Mi;uey: Member