Loading...
HomeMy WebLinkAbout1987-1657.Ball.88-08-10IN TRR MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLl!.&%lT BOARD Between: OPSEU (Clara Ball) Grievor. - and The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer Before: R.J. Roberts Vice-Chairman H. O'Regan, Member M.F. O'Toole Member For the Grievor: .L.,Trachuk Counsel Cornish & Associates Barristers and Solicitors For the Employer: D. Francis Counsel Winkler, Filion'& Wakely Barristers and Solicitors Hearin= February 23, 1988 DECISION . This case involves certain alleged deficiencies in Article 25 of the Collective Agreement. Article 25 reads, in pertinent part, as follows: ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25.1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or - .k (b) from the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service: or ) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time service in the public service, immediately prior to appointment to a regular part-time.position in the civil service, whichever-is later. "Unbroken service" is that which is not interrupted by separation from the public service: "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications: and "part-time" is continuous employment in accordance with the hours of work specified in Ar~ticle 60.1. 25.2 Notwithstanding Article 25.1, where a regular part- time civil servant within the meaning of Part C of the Collective Agreement becomes a full-time civil servant covered by Parts A (Working Conditions) and B (Employment Benefits) of the Agreement, any service as a regular part-time civil servant which forms part of his unbroken service in the classified service shall be calculated according to the following formula: 2 Weekly Hours of Work as a Years of Continuous Regular Part-time x Service as a Part-Time Civil Servant Civil Servant Full-time hours of wor.k for class (weekly) Changes in the employee's weekly hours of work shall be taken into account. Example: - weekly hours of work as a regular part-time civil servant = 6 years at 20 hours per week, and 2.5 years at 16 hours per week - Full-time hours of work for class (weekly) = 40 (Schedule 4) - Seniority (Length of Continuous Service) on becoming a full-time civil servant = (20 X 6 years) + (& x 2.5 years) - 40 40 = 3 years + 1 year = 4 years The grievor joined the full-time classified service on May 1, 1985, after having been a part-time civil employee in the unclassified service for a number of years. When the Ministry refused to recognize under Article 25 any seniority in the grievor prior to May, 1985, she filed the grievance leading to the present proceeding. At the hearing the parties agreed that if the grievor had become a member of the regular part-time service before going full-time, she- would have received some recognition of her seniority. Under Article 25.1 (cl, above, it was agreed. the grievor would have kept all her seniority back to January 1, 1984 --..-~. . . . . .._ -- __.. .,,. _~. . 3 in moving from the unclassified to the regular (or classified) part-time civil service. Under Article 25.2, above, the parties also agreed, this seniority would have been retained on a pro-rated basis when the grievor became a full-time civil servant. It was only because the grievor did not have the opportunity of taking the intermediate step of becoming a classified part-timer that she was denied recognition of any seniority at all. This seemingly anomalous result, counsel for the Union 'submitted,-came about because the interest arbitration award which established for the first time a classified part-time civil service as~sumed incorrectly that thereafter,. all "regular" part- timers would .become classified. As a result, Article 25 did not provide for the preservation of seniority of unclassified "regular" part-time employees~ who entered the full-time classified service. Because of this mistake, it was submitted, it was appropriate for this Board to give the grievor the benefit of Article 25.1 and 25.2,despite the fact that she never was a member of the classified regular part-time service. The award to which counsel referred was the Swan Award, R> Crown in ricrht of Ontario and OPSEU (May 23, 1985). This Award resolved all outstanding issues between the parties regarding the .terms and conditions of the 1984-85 Collective Agreement. With 4 respect to the then unclassified staff, the Award stated, in pertinent part, as follows: 2. UNCLASSIFIED STAFF The issue of working conditions and employee benefits for members of the unclassified staff is a long-standing matter of dispute between the parties. Article 3 of the collective agreement now provides certain limited rights to unclassified employees, who fit into three categories- regular part-time, seasonal and casual employees. Predictably, the collective agreement provides for greater rights for the first two types; casual employees are covered only by certain wage and benefit provisions specifically set out in Article 3. The Union's position is that Article 3 should simply be deleted from the collective agreement, and that unclassified staff should obtain all of the benefits, pro-rata, that are provided to classified staff. . . . Jn principle, the Employer did not oppose this proposal, and indeed the Employer prepared an extensive and comprehensive draft clause for the collective agreement, setting out its approach to the problem. In the Employer's submission, employees in the unclassified service are not a homogeneous group. and the Union's approach of simply extending all full-time working conditions and benefits to unclassified employees would not be responsive to the material differences in the way in which these employees work. In the result, the Employer proposed two separate schemes for seasonal employees and regular part-time employees, and proposed no changes to the situation for casual employees. While the Employer's proposals do not go as far as the Union would like, we are of the view that they constitute a very significant improvement in the terms and conditions of employment for this group of employees, one which is agreed on all sides to be overdue. We have therefore decided to adopt the Employer's proposals,. subject to requiring certain amendments to address problems, identified either by the Union, or by members of the board during the course of the hearings, in the otherwise helpful and comprehensive drafts supplied by the Employer. . . . The second part of the Employer's response to the problem of unclassified employees relates to. regular part- time employees. The Public Service Superannuation Amendment Act, 1984, makes it possible to appoint part-time civil servants, as classified employees. This change makes 5 . necessary a different approach to working conditions for these employees than was the case for the seasonal employees, and the continuous nature of their employment. albeit for less than full-time hours, argues for a different approach. Once again, .we accept the Employer's proposals, subject only to amendments to remedy deficiencies which were identified either by the Union or by members of the board during the course of the hearing. . . . id. at pp. 13- 19. We are not convinced that these passages from the Swan award indicate that the Board mistakenly assumed that thereafter all former "regular" part-timers would become classified part-time employees. From the outset, the Board made it clear that it was accepting, with certain amendments, the proposals of the Employer and re jetting the Union's position "that unclassified staff - should obtain all of the benefits, pro-rata, that are provided to classified staff." u. at p. 3. The Board merely spoke of recent legislation making "it possible to appoint part-time civil servants, as classified employees. ” @. at p. 19. And the Employer proposal which became Article 60.1 of the Collective Agreement made it clear that thenceforth, the term "regular part- time civil servant" specifically meant a classified part-time employee. It did not embrance all employees who used to be referred.to as "regular" part-timers. Moreover, the Board noted that it had made amendments to the Employer's proposals "to remedy deficiencies which were identified by either the Union or by members of the board during the course of the hearing." Apparently, the preservation of the category of unclassified part-timers was not considered to be a deficiency. 6 We say this because it seems apparent from examining Article 25, which derived from the Employer's proposals, that the category of unclassified part-time employees was retained. In particular, Article 25.1 Cc) carries this inference. It provides that the seniority of a part-timer who is appointed to a classified part-time position shall commence "from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time service . . . immediately prior to appointment . . . whichever is later." As worded, this ~provision applies equally to two part-timers who commenced continuous employment in, e.g., 1983 and 1986. If in 1987, they both were appointed to the classified part-time. service Article 25.1 (cJ would make the seniority date of the first January 1. 1984 and that of the second 1986: The .point is, Article 25.1 (c) contemplates the transfer of seniority credits from ~the unclassified to the classified part-time service long after the date of implementation of the Swan Award. We do not think that Professor Swan or the members of his Board would have failed to amend Article 25.1 (c) to excise this "deficiency" if they considered, as counsel for the Union submitted, that from the date of implementation of their award an unclassified "regular" part-time service would no longer exist. Accordingly, we must conclude that the Swan Award did not proceed upon a mistaken assumption when it awarded what 7 ultimately became Article 25 of the Collective Agreement. The grievor cannot take advantage of the provisions of either Article 25.1 (c) or25.2 to claim a seniority date earlier than her date of commencement of employment in the full-time classified service because she was not a member of the classified part-time staff immediately prior to her full-time appointment. In light of this conclusion, we have no alternative but to dismiss her grievance. Before concluding our award, however, we would like to express our strong recommendation to the parties that they meet to consider and resolve the plight of employees in the position of the grievor. It does seem anomalous and inequitable that the grievor should be deprived of seniority credits merely because she accepted a full-time appointment without first becoming a member of the classified part-time staff. It seems likely, as counsel for the Ministry suggested, that the parties simply did not turn their minds to the question of the seniority of unclassified part-timers who obtained direct appointments to the full-time classified service. In view of this, we considered in our, deliberations whether implication of a term might be an appropriate remedy; however, we declined to take this action because it fell outside the scope of the submissions of counsel and as a result .we did not have the benefit of their assistance upon this issue. The grievance is dismissed. DATED at London, Ontario, this 10th day . . 6'Toole, Member