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HomeMy WebLinkAbout1985-1006.Union.86-10-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) - and - The Crown in Right of Ontario (Management Board of Cabinet; G. J. Brandt Vice-Chairman M. Perrin Member A. M. McCuaig Member For the Grievor: k&d;r Gowling & Henderson Barristers h Solicitors For the Employer: L. Horton Counsel Staff Relations Officer ' Staff Relations Branch h Civii Service Commission Date of Hearing March 10, 1986 Grievor Employer Tfiis is a 1:nion grievance filed by Local 500 of OPSEU. The grievance foim i!:e!f clairr.: !hat “the Emp!c)*er is vio!z::ing .4rlicle 6 Of the ‘??crl:icg Cx,r’i::r,:r.r !,g:eezc~ni a~.:: the %h!ic S~::ice Act in desying the \“.zr.zgvr?lent Compensa!ion Option to bxgzizing unit employees on rcm?~:rxy assignment to mar!agement po!:itions.” Subsequently. du:ir.g the cc:::rce LIT the grievance procedure. the griet’ance ~‘2s enended by the Lrnion $0 2s tr.: be based on an allege.2 der.ial of *l-~1 ,-;.. mixagenent compenszttcn wption tc Schedule 6 bargair.ir.g wit employees temporarily assigned to mixzgement posltlons. .%t the OUIC~I of the proceedings COL. ~sel for the Employer advised the Board ol a pre!ininary objection going to the Board’s jurisdiction to hear the m~t!e:, In order that this objection be understood it is neceswy KO set out briefly the nature of the issue rai?ed by the Linion Thai ixu e coxerns the scope or the ec:itlene?t cozferred cron bzr:zinir.g unit members under the provisions of .4r:icle 6.1 of the collec!ive 2greez:ent. .4rtic!e 6.1 provides as fo!!ou::: W’heie an employee is arsigned lempo:aii!y to perform the dut:?s of a pwi:;~z: in a classificat’ion uiih a higher salarv maximum for a period in excess 0: eiphl 16 ! consecuti\ye xorking days, he sha:J he paid mi~~g ~5) from the day he mc:menced to perform tke lziie: of the higher c!zsification ir: arcordznce n3th the ner! highest ra!e ir: il’le higher claezificz!!on pro\-ided that FUC,‘: a:!i~g pa)- cha;l not h? ;ec? ihan three pe:cent I j “. AI\ e hi: xi-ien: r;i:e 3. This entitlement to “acting pay” is, by the provisions of Article 6.5 of the collective agreement. applicable a-here an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by the collective agreement. It is common ground b.etVeen the parties that. in generzl. the effect of krticie 6.5 is IO render .4r:icle 6.1 applicable where a bargaining unit emplo:i-ee has been assigned the but/es of a management position. ‘Kha! is in dispute, hox~ever. is the meaning :of “acting ,pay’ in these circumstances. The inion takes : .he position thar the term is referable to the complete remuneration package payable in respecl of the management position. The dispute on its merits is over whether the management compensation option can be properly said to be “pa)!” for the purposes of determining the scope of application of .rirticle 6.1. I I The preliminary objectjon of the Employer is that an issue as to the entitlement of bargaining unil employees to the management compensation opiion. provision for which is made in the Regulation’s under the Public Service .:;a and cr,ncerning which the collective agreement itself is silent, is .i not an issue relating to the interpretztion or applicatton of the collective agreement and is therefore, beyond the jurisdiction of the Board. --. L ‘. the hearing the Board ruled against the Employer’s pre!iminar) ohjec;ion. Clear!)- the Cnion has raised an issue as to~the meaning of ,a phrase in thecollective agreement. viz. “acting pay”.1 In view of the prr!\-isinns of Article 6.5 which contempiate the application of the concept of actlngpay” where-a bargaining unit member is temporarily assigned to peiiilrm duties in,a management position it is not un[earonab:e to conclude th:‘, one basis for determining the meaning Iof “ac:ing pai'" in ;his context is iri rxalr,!ne ihe management comr!ensaticln scheme. In so doing the Board 4. \\,ould not be acting outside the scope of its jurisdiction. Rather it would be attempting to Rive an interpretation to a phrase in the collective agreement. Such an exercise falls clearly wilhin the scope of the Board’s aUthourity. Ke turn no% to the merits of the grievance. As indicated above the issue involves a determination of Which items in the remuneration package referable to the management position a!iach to rhe temporary “transfer” into such a position, or to characterize it as the EmpJo!‘er uwld. to the temporary “assignment to perform duties” in the management position. Jklore sJxcifically the issue is whether or not the management compensation option can be considered as “pay” for these ptkpuces. The management compensation option is dealt n:ith by Regulation 661. c. 15 under the Public Service Act. It is limited to employees in classifications set out in Schedule 6 to the Public Service Act. Section 15(Z) provides that employees (entitled to the management compensation option) are entitled to “compensation option credits at the rate of S/12 of one credit per month.“. Section I Si7j provides that with the approval of his deputy minic’:er. an employee may take leave of absence n?th pay in the year in respect of his compensation option credits at the rate of one day of ieave of absence with nay for each compensation option credit received in the year. II is furiher piovided that the credits are iO be reduced for each leave of Csence :aJ;en. by section 151FJ at the end of each year the empioyee shall be paid for an)’ of his compensation option credits in respect of which he has T;CI! taken lea\-e of absence with pay in the year. Evide,nce was led with respect to how the Office of the Treasury deals ._ x:i? ihe macigenieni comnensatiw c;pt~on from an accounting standpoint. ‘l??i evidsnce indicated that the management compensation option is treated accounilnp r,urposes Iike reau:ar sakr~s and n’apes. Considerzb!e 5. argument was directed to the question as to whether the management compensation option should be seen as time off with pay. livhich is only received in the form of a monetary payment if the time OJ’f is not talten). or whether it should be regarded 2s essentially a monetary benefit. .It was submitted by counsel for the Lnion that the better view, consistenl Vith the genera: stream of arbitral jurisprudence, is that the total remuneration package should be examined n-hen interpreiing vords like “earnings”or. as in this case. “acting pay”. On this basis the management COQpenSaliOn option uiuld be regarded as a part of t!Iat total package and therefore to be included among the items to which bargaining unil employees temporarily assigned IO perform duties in a management position xould be entitled. It is unnecessary for the Board to choose between these differing characterizations of the management compensation option. The issue has been espressl!: dealt Vilh under Regulaiion SS I under the Public Service .4a. That regulation provides as foIlok’s: 1 i I) In thic Regulation, “pay” or “salary” means remunerzrion in respect of scheduled hour? of a’ork but does not include any amount paid that is, a j a cash payment for a benefit; b) cl ? A. Fx r:ie purpose2 of silbsection ! I I 3.1 “cash payment for a benefit” includes arm). payment under the managemen compensation option.... The linion has taken the position ihat it is appropriate and necessary to co~;suIt the Public Service hct a2d regulations passed thereunder for the purposec of.determing the scope of the entitlement under .4rticle 6. I IO ._ xmg >a!“‘. Clearly,u;hen tba! i$ done it becomes evident that the cl3nagement compensiition option is not regxded as “piy” roi thz p~rpos2s 6. of the Public Service Act and regulations. A fortiori it cannot be a part or the entitlement of bargaining unit employees temporarily assigned to ~. management positions. Counsel for the Union rook the position that Seciion 3Ol3) of the Public Service ic: is an answer to lhis argument. II provides ihat in lhe event of a con:l;c: between 2 provision or a collective agreement and that of a regu!aiion the provision of the collective agreement prevails. Ke aie unable to see how that section applies here. The provisions of the regulation to ahich rererence has been made do not “conflict” with the collective agreement. The collective agreement is> silent as to the matter of the entitlement to the management compensation oplion as an aspect 0r “acting pay”. The relexlance of the regulation is that it provides a basis l’or interpreting the meaning of that phrase in the contest or its application to * the kind of siluation which has arisen in this case. Indeed,the Union took the position throughout that Regulation FF i established the standard upon n-hich the scope or the phrase “acting pay” for persons temporarily assigned iO a managemeni positions was to be deiermined. Given Thai posjtion we do not believe the !‘nion can then claim that. n-here that exercise leads to a finding a?hich gi\les a narrow interpretation to the collective agreement provision. s. 30!3 i of the Xct can be used to reiieve against that result. Ccnceqtwnii!:. for the reasons set out above. the grie\Tancc is dismissed. ^ i 7. DATED at London, Ontario this lsthday~of October A6 G. J. Brandt, Vice-Chairman "I dissent" (see attached) M. Perrin, Member A. M. McCuaiq, Member GSB 1006/SS OPSEU (Union Grievance) - and - The Crown in Right of Ontario (Management Board of Cabinet) DISSENT While I am in agreement with :the majority's decision with respect to the Employer's preliminary objection in this matter, I dissent on the majority's decision on the merits. In interpreting the words "acting pay", the purpose of Article 6.1 should be examined. The purpose of such a provision is to ensure equal pay for equal work; i.e. whatever compensation management personnel gets for performing a particular job, so does a bargaining unit member*when performing that job. In this member's view, that must include the compensation option credit: "5/12 of one credit per month". The effect of the majority's interpretation of i I'actinq pay" is clear -- it defeats the purpose of Article 6.1. If "acting pay" was intended to be given the narrow definition the majority has given that language, surely the language of the collective agreement would have reflected such an intention. As noted on page four of the decision, the man- agement compensation option is treated by the Office of the Treasury the same as regular salaries and wages. In my view, this strengthens the Union's position that this - 2 - is a monetary benefit and as such is part of the total remuneration included in the interpretation Of "acting Pay". As Union counsel argued, if the interpretation put forward by the Union (and in this dissent) is in con- flict with Regulation 881 of the Public Service Act, then, by virtue of Section 30 (3) of the Public Service Act, the collective agreement prevails. In conclusion, the purpose of Article 6.1 is the starting point in any analysis/interpretation of "acting pay". The effect of the interpretation must be such as to not defeat that purpose -- which is equal pay for equal work. The narrow interpretation given to that language by the majority defeats the purpose of Article 6.1. I would have allowed the grievance and interpreted "acting pay" to include the management compensation option.