HomeMy WebLinkAbout1988-1101.O'Breza.90-02-19 . .:L.,.,~ <:. ~.. .~ ~ .' ONTARIO EMPLOYES DE LA COURONNE
~' ~ CROWN EMPLOYEES DE L 'ONTARIO
' GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS ,STREET WEST, TORONTO, ONTARIO. MSG 1Z8 . SUITE 2100 TELEPHONE/Tf:L~PNONE
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3.101/88
IN THE RATTER OF AN ARBITRATION
Under
THE CROWN FJ~PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEHENT BOARD
/
BetweeN=
OPSEU. (O'Breza)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Agriculture and Food)'
Employer
Before=
B.B. Fisher 'Vice-Chairperson
J. McManus Member
F. 'Collict Member'
For the Grfevor: A. Ryder
Counsel
Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
For the Employer: $. Currie
Staff Relations Officer
Human Resources Secretariat
Management Board of Cabinet
'Hearing: September 27, 198.9
Interim Decision
Introduction
Th/s ease in/tially involves a determination of whether or not the g~ievor
was properly appointed to the unclassified service pursuant to Sect/on'6(1)(fi)(i) of
the Regulation 881 of the Public Service Act, which reads as follows:
6(1) The unclass~fi_ed service consists of ernpl~ees wh° . ~
" areemp!oyed under individual contracts tn which tt~e
.' terms bf employment are set out and is divided into,
a) Group 1, consi~,ting o/ dnployees who are employe~ ' i) on a project of a non-recurring kind.
Facts '-'
The only witness for the Union w~ the grie~or. H~ w. as employed on a
series of nlne term contracts c0mm~ndng October 7, i985 to September 30, 1988~'
Throughout this period of time'he worked ih ihe'Farm ASsistance Programs Branch
of The Ontario Family Farm lntei'~s't Rate Red~ction Program CO.F.F.I:R.R."). This
program offered interest rebates on farm loan'q'to qualified farmers in' Ontario/
The organization of the O.F.F.I.R.R. project was as follows:
Norman MacLeod, a member of the classified staff, was the Director of Farm , -
Assistance Programs Branch.: He had o-~'eiall responsibility fo~' the O.F.F.I:R.R. and
a host of otb. er pr. ograms. Repor~ting to him was Sharon Vanson, Program Co-
ordinator for Q.F.F.I.R.R., aiso a classified posit}on. The grievOr and the other
staff members reposed to Ms. V&'~son. The grievor's duiies started'off being of a
generalized nature involving'all stages of the pmce'ssing of ~ipplications. l_~ter on
When the volume of work'increased and the program was e~tended, his ddties
became more specialized. At one point'he became aGroup Leader, Wh~e'n the
grievor first joined he bel. ieved his employment to be 6f a tempoi'ary nature.
-2-
At first the program was scheduled to stop accepting applicatio, ns in
January, 1986. This was extended at first to March 15, 1986 and then it was
further extended for another three years with a possibte further one year extension
to cover weather problems. This last extension was announced just prior to March
15, 1986. At this point the grievor's tasks became more specialized.
The only witness for the employer was Norman MacMod. He 'was
responsible for the O.F.F.I.R.R. program from its inception in 1985.
The curreni status of the O.F.F.I.R.R. program is that the last application
was received May 18, 1989 and the processing of flaese claims will be completed by
December, 1989. The level of staff involved in the O.F.F.I.R.R. program has varied
considerably over the 4 years of the program depending on the volume of
applications. The O.F.F.I.R.R, program will not be continuing.
When the grievor was first hired he was put on excluded contracts, in
other words, he was not made part of the bargaining unit. On September 13, 1986
the grievor was put into the bargaining unit as a result of an OPSEU complaint.
The dec/sion to extend the program for another three years was made prior to the
decision to put the grievor in the bargaining unit.
The administration of programs like O.F.F.I.R.R. is pan of the ongoing
nature of this Ministry. There are just under 100 separate programs in the Ministry
at any time, with about 35 of these being under the Farm Assistance Programs
V
Branch. These programs vary in duration, some are for indefinite periods and some
have a pre-determined life span, subject to extensions. It is not unusual for the
life of a program to be extended. Occasionally a staff pers6n from OiF.F.I.R.R.
would work on other programs as sometimes these sldlls are transferable.
Programs like O.F.F.I.R.R. are continually being started, stopped,
-3-
adjusted and replaced. Management decides on whether or not io hire classified or
unclassified staff based on the length of the program and the avai/ability of other
'people already ia the Branch. It is not always necessary to use unclassified persons
on short term projects as they sometimes use classified staff. '
Ai~gument'Of Union ~ " ' ,-
Section l(1)(O(~ii) of C.E.C.B.A' contains a Provision which closely
parallels Section 6(1)(,a)(i) of Regulation' 881 under the Pitblic Service Act. The '
section speaks of persons who. are excluded from the bargaining unit and reads as
follows:
f) "e.mplo3~ee" means a Crq. ~v'd e. mpl°Y ee ~ d.efined in the Public Service Act t~ut noes not incluae,
vii) a £erson engaged under contract in a professional or'
otlter speCia7 capacity, or for a project of a non '
-recurring kind, or on a temporary work a4. signment
arranged by the. Civil Service Commission in
aCcoraance with its program f .or providing temporary
hel ,.
Insofar as the grievor was m,4de a m~mb'er of-file bargaining unit on
September 13, 1986 th, e..employer itself acknowledged that the project was no longer
of a non-recurring kind.and therefore it ~annot now rely. on the argument that the
gr/evor was employed on a p[oject of ~ non-reCUrring kind."
Alternatively, the Union says that tIie project was not of a non-recurring
nature as it is the regular work of this Ministry. and more specifically of the Farm
Assistance Programs Branch to administer these'programs. 'The "proje~:t" then that
one should consider is not the O.F.F.I.R,R. project but rather' the Farm Assistance
Programs Branch, which is clearly an Ongoing efitity without a pre-determ/ned
expiry date.
In addition, the Union submits that the project became of a re~rring
nature when it was extended by.three years. _
Argument of Management
The employer relies heavily on the case Lamey (Ontario Public Service
Labour Relations Tribunal - T/19/77, Chairman Shime). This cas~ i~volved an
application by the Union for a declaration that Mrs. Lamey was a member of the
bargaining unit. The sole issue was whether or not Mrs. Lamey was employed on
project of a non-recurring nature within the meaning of Section l(1)(g)(vi) of
C.E.C.B.A.
Mrs. l_amey was appointed on contract to provide nursing services to a
section of a hospital that was being phased out over a m~rnber of years. She
worked alongside classified staff performing the same duties as them. in fact, one
day a month she even'worked in the regular part of the hospital..She voluntarily
paid union dues and the employer agreed to deduct and remit the Uues f.rorn her
wages. Mxs. Lamey knew at all times that her employment was of a temporary
nature and would cease no later than when the unit had been phased out. The
reasons of the Chairmaxt were as follows;
After consideri:n, g the evidence ~ the arg~.ments ?e a~'e
s.-.a?s, fi. ed that the p?asing out qt. the Mental Retaraation
unii was a bona'fide uriderta~ing by the employer
that Mrs. Lamey was hired with the full'understanaing
th. at she was to be employed on a temporary basis while
the unit was being phased out.
· We are further satisfied that the scheme'orpl'art to phase
ou.t the service was Of.a non-re~g nature regard, less
o_t. the fact that there i.~'not a definite t.ermination aate. .
~ lite experience to date coupled with tne. projlectio, ns ana
t. he ver21 .nature of the scheme indicate tl~at there ~. a
Oona frae attemt~t to terminate the Mental Retaraation
Unit and that there is no e4c_pectation that the unit will
be resurrected at a future date.
-5-
T~.e'.rem '.atning '.ts~u. e that we are confronted.wit. h is.
wn. etl~er tttept~asing out was a project witl~in tt~e m_ eaning
o! the/lct. I,_n Mmp?e dictionary terms a project is a
'~lan' or a acheme" or a "plahned undertaldng". Clearly,
. m context, this attempt tophase out the Mental -
Retardation Unit fel£ witMn the plain meaning of the
term. The ph~in-g out operation was a plan'or a scheme
o_r an .und. drt..a~_~. -to plaize th'e residents Of the M. ental
Ret .ard~. 'on .Unii in other sutroundings_.where t. ttey ·
·rec, e, ivea m. ore a_.ppropri.ate treatment. ~l.'tte pr, oje~
additio, ncu stajy, or supp!ernent.ary st.af] in oraer that tt ve
carried out. I£ is not relevant tttat the work is similar to
work.performed by other permanent or c.!/~'fied staff;
c. lear_ty there are numerous projects which ~may be required
Oy the government from time to time where the work is
the same or similai' to work being performed by ·
gqvernment or classified emp. lovees. 'Thus in the example
'"" ~i(__ed by the union of a_.Roy~l Commission,. there could be
offic_e and clerical s(aJ~_pe'rforming work ttu~t is
pbrformed_by 6lassifi~ gOvemment, employees. The
£ur~ose o,t' ttte section i~ to allow the ernpt~oyqr some
latt?ude qrfl.exibiIity in dealing wit. h spec-'~uzl ~. 'ons
without -~hdving persons appotntecl to wor/c in those
~,matt~ons.. become, emplSyees for .all. relevant £.uiposes:
· c~'te.arty tttat.was the situation in this case ana~t was
unaerstancling of both Mrs: Larn~ and the employer. '.
It is noteworthy that the Lame), decision is not Of the Grievance
Settlement Board but of the Tribunal. This simply confirms the~fact ~that .the
question of whether or not a pers6n is wo?king on a project of,a non-recurring
kind is one that goes solely to the"question of whether 6r not one' is a member of
the bargaining unit. Given that one cannot be in the bargaining anit if their. Work
is on a project of a non-reCtirring kind, it makes no sense to ihen consider whether
a bargaining unit person is wo~kin~ on a project of a non-recurring kind as this is
not possible within the statutory scheme... I'n essence, the employer determined that
question when they put the grievor in the bargaining unit in Se. ptember, 1985, It is
interesting to note that this decision to put the grievor in the bargaining unit came
-6-
just after the O.F.F.I.R.R. program had been extended for aLfurther three year
period. It is reasonabie to infer from this that the employer agreed to put the
grievor into the bargaining unit at that time because the original reason for his
exclusion (project of a non-i'ecurring kind), no longer existed. ~
Furthermore, to now make a mling that the grievor was, in fact,
employed on a project of a non-recurring kind would'mean that the Gr/evance
Settlement Board would be determining whether or not a person was.properly a
member of the bargaining unit as that is the only logical result that could flow
from such a finding. The Grievance Settlement Board has no authority to determine
such a question as only the Tribunal has this power, under Section 40(1) of
' C.E.C.B.A.
It therefore flows that it is not necessary to determine on the facts of
tMs case whether or not the grievor was WOrking on a project Of a non-recurring
kind for the following reasons:
a) the parties, through their own actions, have already determined that the
grievor is not such.an employee by virtue of including'him in the
bargaining unit in September, 1985; and
b) a determination of this issue would, in effect, be an. infr~.'_ ~ement on the
exclusive authority of the Tribunal to determine whether or not someone
is in the bargaining unit.
Insofar as the only basis put forth by the employer to justify the
grievor's unclassified status has failed, it follows that the grievo,.r iS declared to
have been improperly appointed to the unclassified service as of..September I3, 1986.
This panel of the Boai'd will remain seized of this matter. The parties
are to request the Registrar to set up the appropriate additional dates for the
\
continuation of this case.
Dated at Toronto, this 19th. day of ,February,.,, 1990.
(Addend. um attached)
~.. colhct,
ADDENDUM RE G.S.B. ~1101/88 (O'BREZA) ~
The following addendu~ is not a dissent relative to the
decision reached in this award. This addendum reaches the same
conclusion but the reasoning is entirely different. Moreover,
this Member would find that grievor -U'Breza was improperly
appointed to the unclassified service from the date he was
initially hired on contract in October of ~985, as opposed to the
award conclusion of September 13, ~986.
In the opinion of this Member, this case turns~upon whether-or
not the grievor was appointed to a position of a non-recurring
kind; and not the question of whether or not he paid union dues
and was designated as being in .the bargaining unit.
At page 5 of the award, the following statement-is.made:
is noteworthy that the LAMEY decision is not of the
Grievance settlement Board but of th~ Tribunal. This simply
confirms the fact that the question of whether or not aLperson
is working on a project of a non-recurring kind is one that
goes solely to the question'of whether or not one is a member
of a bargaining unit ...."
With the greatest respect, this Member cannot support this
conclusion.- The LAMEY case (T/19/77) was an application t'o the
Tribunal by the Union pursuant to Section 38(1) of C.E.C.B.A. for
a determination as to whether L. LAMEY was an employee within the
meaning of the Act; for it was the Union's contention that L.
LAMEY was performing bargaining unit work normally performed by
other emptoyeers and that she was payin~ union dues.
However, ~s stated at pages 6 and 7 of the LAMEY award,
- 2 -
'!After considering the evidence,and the arguments we are
-satisfied that 'the phasing out of the,:Mental Retardation
Unit was a bona fide undertaking by ~he employer and that
Mrs. Lamey was hired with the full understanding that she
was to be employed on a temporary b~sis ~while the ~nit
was being phased out".
."We are further satisfied that the scheme or-Dian to
Dhase out the service was of a non-r~curring nature
regardless of the fact that there is not a definite
-' termination date ...
In effect, the' case turned upon whether or not L. LAMEY.was
employed on a project of a non-recurring niture within the meaning
of Section. 1. (i}..(g) .(vi) of.C.E.C.B.A. (now Section 1 (i) (f)
(vii)); and not whether or not L. LAHEY.was. paying union dues.
it follows from the above, that thiS' Member cannot .pgree with
the-next conclusion set .-out in the subjectawa~d 'at page 5, %s
"Given tha~ one 9annot be in the bargaining.Unit if their
work is on a project of a non-recurring kind, it makes no
sens~ to then consider whether a bargaining unit person
is working on a project of a non-recurring kind. as this
is not possible within the statutory scheme".
- page 3 -
Counsel for the Union, in cross-examination of employer
witness Norman McLeod adduced evidence to the effect that the
Ministry non-recurring· projects may be performed by either
classified or unclassified.employees; and that in some 6ases it is
not necessary at all to recruit additional staff ('temporary or
otherwise) to handle ~ew programs.
Accordingly it i_~s possible within the statutory scheme to have
bargaining unit personnel working upon.·projects o~ 'a non-recurring
kind. ~
In the view of this Member, 'therefore, the fact that the
griever commenced to pay Union dues in September of 1985 is not
the determinative factor in this case.'
It is true that the unclassified agreements signed by the
griever from September 13th 1986 made reference·to~"bargaining
unit", and that he paid dues from that date. However, it is also'
true that each one of these contracts,
1. was titled "Terminable Employment", or "Terminable
Unclassified (Casual) Employment Agreement";
2. was signed by Mr. O'Breza on each occasion;
3. had a specific commencement and termination date;
4. was Coded 121000 (Normal Casual Employee);
5. was designated with a~position code of 01-7200-90,. with
the 90' being defined on. the reverse side' of the contract
"Position for employees working on a project of,a non-recurring
kind which has a stated objective and timeframe, not normally over
3 years, unless approved by the Human Resources S~cretariat or
Management Board approved programs such as Red Meat or OPIIP".
Moreover, E~ibits 4 and 5 and 6 submitted by the" Uni°n. on
behalf of the grtevor in direct evidence made reference to his
"contracts"; and in Exhibit 6, grievor O'Breza himself, in a memo
to N, McLeod, Program Manager, refers specifically to "my
contract";, and he states'that it should be replaced "with a Review
Officer-contract".
It would seem clear from the above, therefore, -that the
grievor .had a full understanding that he was employed on Contracts
on a limited term basis.
Finally, it is the' position 05' this Member that the fact of
paying union dues and "ticking off" a box 'on a "Terminable
Unclassified (casual). Employment Agreement" are 'not determini~ive
matters that override the Public 'serVice Act an~~ the C.E.C.B.A,
\
The Public Service' Act. empowers the employer to appoint
individuals to .either the classified or unclassified service.
C.E.C.B.A. provides · that the right to,so appoint employees will
not be the subject" of collective bargaining nor come within the
jurisdiction of the Board.
In the subject case, griever O'Breza was appointed to the
unclassified service and had full knowledg9 and understanding that
he was hired on limited term contracts. The fact that Union dues
were paid in no way changed the method of his appointment nor the
nature of the non-recurring farm assistance program, (which indeed
was extended and renewed over a long period of time), to which he
was assigned.
In the view of this Member, and following the Beresford
decision (G.S.B. #1429/86), this Board should conclude that the
appointment of the griever does not fall within the regulations
applicable to unclassified employees as set out in Regulation 881,
Section 6 (i) (a); and conciude that the griever therefore has
been improperly appointed to the unclassified service. However,
this improper appointment would obtain from the first day of the
griever's appointment from October 5, 1985, at which time-he 'was
appointed to the unclassified service to a .project of a
non-recurring kind, working 36-1/4 hours per week, and thus not
meeting the definition for unclassified employees as set out in
Section 6 (i)(a) of the regulations of the Public Service Act.
To. put the matte'r very succinctly, the griever was appointed
to the unclassified service to work of a non-recurring kind. 'The
fact that he paid union' dues and was "ticked off" on a form as
being in the bargaining unit does not override the employer's
right of appointment as set out in the Public service'Act; nor
does it change the nature of the non-recurring program on which
the griever worked; nor does it, of itself, re-classify an
individual to the status of "employee" as set out in Section 1 (i)
(f) o~ C.E.C.B.A.
F. T. COLLICT, MEMBER