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HomeMy WebLinkAbout1987-1143.Brown.88-06-02Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (M. Brown) and The Crown in Right of Ontario (Ministry of Community & Social Services) Before: J. Forbes-Roberts Vice-Chairman F. Taylor Member P. Camp Member For the Grievor: P. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors For the Employer: D. Costen Legal Services Branch Ministry of Community & Social Services Hearing: February 5, 1988 Grievor Employer 1 DECISION This is a preliminary ruling in a classification grievance. At all relevant times, the grievor was a member of the unclassified public service with the Ministry of Community and Social Services ("the Employer"). Following two unsuc- cessful bids in job competitions, the grievor filed three grievances, two alleging being improperly denied promotions, and the third alleging discriminatory hiring pracitices by the Employer. By letter dated January 29, 1988, Employer counsel notified Union counsel that he would be objecting to the arbitrability of the grievances. The bases for the objection were that, in the circumstances, neither under the Crown Employees Collective Bargaining Act (C.E.C.B.A.) nor the collective agreement did,a member of the unclassified staff have recourse to arbitration. It was argued that this Board lacked jurisdiction to hear these grievances. We will deal first with section 18 (2) of C.E.C.B.A.. In certain circumstances, this section creates an absolute right for an individual grievor to proceed to arbitration. Failure to be awarded a posted job(s), or an objection to the interview process(es) are not amongst them. Therefore, for relief, the grievor must rely upon the terms of the collective agreement. Article 3 of the collective agreement states: . 2 -, /--GY-ARTICLE-3--YINCLASSIFIED EMPLOYEES 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 The Article then lists a comprehensive code of terms and working conditions for the unclassified service. Finally, Article 3.15 is entitled and states: OTHER APPLICABLE ARTICLES 3.15 The following Articles shall also apply to unclassified staff other than seasonal employees: Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36, and 65. 'The Article dealing with then posting and fil linq of vacancies is Article 4. Article 4 is not accessed through Article 3.15. How then does the grievor gain access to arbitration under Article 4, and how does this Board acquire jurisdiciton to deal with the. matter? Employer counsel argued that Article 3 in its entirety codified the right of unclassified employees. Through Article..3;15~,certain rights under the "master agreement" are incorporated, others are specifically excluded. Because Article 4 is not included, through the'neqotiation process; it has been specifically excluded from access to the unclassified staff. Counsel argued that for this Board to read in a right to arbitration would be to amend the collective agreement in contravention of Article 27.16. Union counsel argued that Article 4 of the agreement dealt with the Employer's obligations, not an employee's rights. Because an Employer did not restrict applications to the lenqes to the classified service, it cannot restrict chal propriety of the selection system. In the alternative, the Union argued that to uphold the Employer's objection, would create a “position of qrea~t unfairness" for unclassified staff members. Dealing with the Union's first arquement, we respectfully disagree. To grieve a failed bid in a job posting, the 'employee must have access to a specific substantive Article of the agreement (le. Article 4). We find that Article 3 does create a codification of rights for unclassified employees. In the form of Article 3.15, the parties deliberately turned their minds to the Articles of the "master agreement" which would apply to unclassified staff members. Article 4 was not one of t.hem. To open this door would clearly be an excess of jurisidiciton by this Board. With respect to the Union's second arquement, we agree that unclassified staff find themselves in a position unequal to their classified counterparts. This is however a matter for the bargaining table, not this Board. The G.S.B. is charged with interpreting the document negotiated by the parties. The document in question (the collective agreement) does not allow the interpretation urged by the Union. The grievance is hereby dismissed. Dated ate Toronto this &id. day of June, 1988 !Q3fY D.J. Forbes - Roberts, Vice-Chairman w . F. Taylor, Membe &.L\p P. Camp, Member