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HomeMy WebLinkAbout1990-1798.Wray,Houston&Campbel.92-02-18 ONTARIO EMPL OYES DE I.~ COURONNE CROWN EMPL 0 YEE$ DE L 'ONTA RIO GRIEVANCE . C,OMMISSlON DE SE'I'FLEMENT REGLEMENT BOARD DES GRIEFS 780 OUNDAS STREET WEST, SUITE 2100, TOROhtTO. O~TARrO, M5G 1Z8 TELEPHOt~E/T~-L~PH©~E: (4 ~6;' 326-7355 180, RUE OUNOAS O~JEST, BUREA~J 2100. TORONTO (ONTAI~IO). M5G '~Z8 FACS/MILE/TE,[EcOPlE : (a 16) 326~ ~396 1798/90, [799/90, 1803/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING' ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wray/Houston/Campbell) Griever - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R; Verity Vice-Chairperson G. Majesky 'Member D, Clark Member FOR THE D.-Wright GRIEVER Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING February 22, 1991 March 25, 1991 2 DECISION Brenda Wray, Paul Houston and David Campbell worked as unclassified Correctional Officers at Metro Toronto East Detention Centre under a series of fixed term contracts. All three employees grieved the non-renewal of term contracts that expired on September 30, 1990 and, in effect, maintained that they were discharged without just cause contrary to s.18(2)(c) of the Crown Employees Collective Bargaininq Act. In the case of Brenda Wray, we were advised that there is an additional allegation that her termination is void on the basis of discrimination. However, this panel was not asked to determine that issue. The Employer maintains that the Board is without jurisdiction as the grievors had been properly appointed to the unclassified service working "on an irregular or on-call basis" within the meaning of Group 1 of the classified service as defined in s.6(1)(a)(iv) of Regulation 881 to the ~'ublic Service Act. The Union contends that the grievors were.employed on a regular basis. However, the Union acknowledged that, based on the Board's jurisprudence in Beresford (1429/86) and }{illev (1972/87), for the Board to have jurisdiction we must find, on the evidence, that an appointment to the unclassified service was improper. The parties agreed that the sole issue before us is whether each of the grievors was properly appointed to the unclassified service. The Union acknowledged that if the Board finds that a particular grievor works "on an irregular basis", then the appointment to the unclassified staff is proper. Metro Toronto East Detention Centre is a maximum security facility which accommodates approximately 440 adult male inmates. There are 138 classified Correctional Officers at Metro East who at one time were scheduled to work 40 hours a week, 8 hours per day pursuant to Article 7.2 of the collective agreement. There is, however, a compressed work week agreement in effect at Metro East whereby regular hours of work for both classified and unclassified staff are either 12 or 8 hours per 'day or a combination of those hours. The evidence established that of 138 classified staff, 84 Correctional Officers work 12 hour shifts, 20 Officers w6rk 8 hour shifts and 34 work a combination of both. For classified staff, shift schedules are posted six months in advance. In addition, there are 47 unclassified Correctional Officers as Metro East who are used to replace regularly scheduled classified staff absent for a variety of reasons including illness, vacation or lieu days, Workers' Compensation Benefits or on special assignment. Some 14 unclassified Correctional Officers are designated as "slotted casuals" who work the same schedule as classified employees absent for lengthy periods of time. Thirty- three "unslotted casuals" are available to be scheduled to "the roster" on a weekly basis. 4 The last contracts of employment for the grievors Wray and Houston were for the period April 1, 1990 to September 30, 1990 and for the grievor Campbell from May 28, i990 to September 30, 1990. Each individual contract specified app~intr~ent to the unclassified service under Group I and contained the following terms and conditions - "authorized hours of part-time work as required up to 40 hours per week" and "casual, irregularly scheduled part-time employees who may be required to work up to 40 hours during their work week". Exhibits were filed by the Employer showing hours worked on a weekly basis by each of the grievors during the final contracts. For the grievor, David Campbell, the evidence of hours worked extended to April 24, 1989. (See Schedules B, C, D attached hereto). James Stevens is currently schedulinq[ officer at Metro East. He testified that the number of classified staff is inadequate to operate the facility and that on Monday of each week, he reviews staffing "shortfalls" for the week commencing the following Friday to determine the need for additional hours of work. According to his evidence, "unslotted casuals" are then allotted shifts "based on equal distribution of work". Mr. Stevens testified that unlike classified employees, for "unslotted casuals" there is no guarantee of the number of hours of work per week and no regular days off. Further, he stated that while unslotted casuals are expected to be "readily available" for work, such an employee has the option to refuse a work assignment. He did note, however, that where an un$1otted casual refuses a work assignment, the attendance record 5 is marked accordingly. The scheduling of classified staff at M~tro East has remained unchanged through the years with the sole exception that scheduling is now computerized. Finally, Mr. Stevens testified that all thr~e grievors were unslotted casuals during their final six month Contract expiring on September 30, 1990 although he acknowledged that David Campbell had been a slotted casual from October 21, 1989 to November 20~ 1989 and from January 15, 1990 to May 27, 1990. The grievor, Brenda Wray, was the only witness called by the Union. She was first appointed to the unclassified staff on a fixed term contract commencing September 14, 1987. According to her evidence, she continued to be employed under a Series of 10 term contracts. She testified that she was in regular attendance at the University of Toronto in a criminology course and for that reason "wasn't available" two days a week in the first year, three days a week in the second year and four days a week in the third year. Her evidence was to the effect.that during the second and third years of employment "I basically worked weekends during the school year" and was "slotted" for the majority of the summer in 1988 and 1989. However, because of a back injury she was not slotted in the summer of 1990. She testified that essentially there was no difference in the ~ature of the work performed by Correctional Officers whether classified or unclassified. In this case, the legislative framework is the Ontario Public 6 Service Act. The Act, in relevant parts, reads: 1. In this Act, (a) "civil servant" .means a person appointed to the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Commission, and "civil service" has a corresponding meaning;' (b) "classified service" means the part of the pdblic service to which civil servants are appointed; (c) "Commission" means the Civil Service Commission; (f) "Minister" means the member of the Executive Council who is designated by the Lieutenant Governor in Council as the minister to whom the Commission is responsible for the administration of this Act; (g) "public servant" means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Council, by the commission or by a minister, and "public service" has a corresponding meaning; (h) "regulations" means the regulations made under this Act; (i) "unclassified service'"means the part of the public service that is composed[ of positions to which Persons are appointed by a minister under this Act. As can be seen, there is a distinction between the "classified" or "civil service" and the "unclassified service". Appointment to the "classified service" is provided for in ss.6 and 7 of the Public Service Act: 6. (1) When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy exists 7 shall ~ominate in writing from the list of eligibles of the Commission a person to fill the vacancy. (2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year at a time. 7. The Commissioh shall, if requested in writing by the deputy minister, recommend to the Lieutenant Governor in Council the appointment of a person on the probationary staff of the classified service to the regular staff of the classified service, and the recommendation shall be accompanied by the certificate of qualification and assignment of the Commission. Appointment to the unclassified service is provided in s. 8 as follows: 8'. (1) A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides. (2) Any appointment made by a designee under the subsection (1) shall be deemed to have been made by his minister. Section 9 of the Act provides for the termination of appointment to the unclassified service as follows: 9. A person who is appointed to a position in the public service for a specified period ceases to be a public seruant at the expiration of that period. Section 6 of Regulation 881 to the Public Service Act, as presently written, provides a description of the unclassified service: 6. (1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into, (a) Group 1, consisting of employees who are employed, (i) on a project of a non-recurring kind, (ii) in a professional or other special capacity, (iii) on a temporary work assignment arranged by the commission in accordance with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis, (v) during their regular school, college or university vacation period or under a co- operative educationa2 training program; (b) Group 2, consisting of employees who are employed on a project of a recurring kind, (i) for fewer than twelve consecutive months and for fewer than, : (A) 36-1/4 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36-1/4 hours of work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week;, (ii) for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36-1/4 hours per week or 40 hours per week; (c) Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36-1/4 hours per week or 40 hours per week; 9 (d) Group 4, consisting of employees, (i) who are appointed pursuant to section 8 of the Act, whether or not the duties performed by them are, or are.similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2 or 3. It should here be stated that the provision in respect of "Group 4" was added to s.6 of Regulation 881 in March of 1989. The Employer relied upon Article 3 of the collective agreement and s.30(3) of the Public Service Act. ARTICLE 3 - is set out in Schedule "A" attached hereto. s.30(3) Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees 'of a bargaining unit covered by the collective agreement prevails over the provision of the regulation. R.S.O. 1980, c. 418, s.30. For the Employer, Mr. Benedict argued that all grievors were properly appointed to the unclassified service as Group 1 employees who work "on an irregular or on-call basis" within the meaning of s.6(1)(a)(iv) of Regulation 881 to the Public Service Act. In particular, he was critical of the rationale of Vice-Chairperson Springate in Carson and Vice-Chairperson Wilson in Rohrer in the interpretation of the phrase "employed .... on an irregular basis". Mr. Benedict conte'nded that the word "irregular" must be interpreted on a comparison to regular classified employees as 10 contained in the collective agreement. On that comparison, he concludes that in the absence of predetermined shift schedules under Article 10 and no regular days off under Article 8, and other provisions of the collective agreement relating to classified employees, the grievors are employed on an irregular basis. In the alternative, the Employer argues that the Beresford and Milley analysis is incomplete and that there is a conflict between the provisions of the collective agreement and the Regulations to the Public Service Act and that under, s.30(3) of that Act, the provisions of the collective agreement must prevail. The conflict is said to exist in that the collective agreement created two groups of unclassified bargainingI unit employees; namely, unclassified staff other than seasonal employees (Article 3.2 - 3.16) and seasonal employees (Article 3.17 - 3.36). Mr. Benedict contends that the terms of the collective agreement creating two groups of unclassified bargaining unit employees is not reconcilable with the terms of s.6 of Regulgtion 881 and that accordingly the Regulations are of. no effect. The Employer referred the panel to the following authorities: David Kerr and Ministry of Community and Social Services 362/80 (Jolliffe); OPSEU (Willis/0'Connell/Cameron et al) and Ministry of Correctional Services 1115/89, 1122/89 (Verity); OPSEU (Rohrer) and Ministry of Correctional Services 1/89 (Wilson); OPSEU (L. Cripps) and Ministry of Correctional Services 660/86 (Verity); OPSEU (Carson et al) and Ministry of Health 88/88 (Springate); Bon~ and Ministry of Natural Resources 173/78 (Adams); OPSEU (Johnson and SzDakowski) and 11 Ministry of Culture and Recreation 72/76 (Swan); OPSEU (Skalesk¥) and Ministry of Natural Resources 429/81 (Draper); and Ferquson and ~Ministr¥ of Industry and Tourism 35/76 (Beatty). The Union maintains that all grievors are employed on a regular basis, and that the test. in Carson being a factual determination is a proper approach. Mr. Wright m~intains that both Employer arguments in this case are flawed. On the first submission, the Union advances a three-fold position; namely, (1) the Employer is wrongly attempting to use the collective agreement to define the appointment power contained in $.8 of the Public Service Act; (2) the Employer's comparison to classified service employees is improper; and (3) the Employer is wrongly focusing on the hours of work or schedules of work rather than the regularity of employment. Mr. Wright contends that the Employer's second argument is an attempt to reargue the Hicks decision (1429/86) and that there is no conflict between.s.6 of Regulation 881 and Article 3 of the collective agreement, because the collective agreement does not purport to create' an ~ppointment power. The Union referred us to the following authorities: OPSEU (Beresford) and Ministry of Government Services 1429/86 (Mitchnick); OPSEU (Milley~ and Ministry of Revenue 1972/87 (Mitchnick); and OPSEU (Bressette et al) and Ministry of Natural Resources 1682/87 (Wilson). The first GSB decision to examine in any depth the relationship between s.8 of the Public Service Act and s.6 of 12 Regulation 881 thereunder was the Beresford case, supra. After quoting S.8 of the Public Service Act Mr. Mitchnick offered the following rationale at pp. 14 - 15: The section is in fact curiously 'worded, to the extent that it does raise the question why the Lec3islature would limit the term of the initial appointment to one year, but then go on to permit any extension of tlhat term on an indefinite basis. That wording would, therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term basis, there must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the classified service. More important to us, however, is the wording adopted by the Civil Service Commission itself in enacting, on the approval of the Lieutenant Governor in Council, section 6 of Regulation 881 under the Public Service Act. 'We note, first of all, that section 30 of the Act exp:~essly empowers the Commission to make regulations (w) respecting .any matte.r necessary or advisable to carry on effectively the intent and purpose of [the] Act." Section 6 of Regulation 881, as pointed out above, provides that "the unclassified serwice consists of" contract employees and "is divided into" 3 groups, which are set out in detail in the remainder of the section. That language is cast in a way that is "exhaustive" (as opposed to "inclusive"), and appears to provide, in a way expressly authorized by section 30 of the Act, a definition of the kind of s~ituation contemplated by inclusion of a power of appointment to the unclassified service by way of section ~ of the Act. Those 3 "Groups" set out in the regulation, on the other hand, cover a very wide range of situations, and obviously create a broad degree of discretion in a minister when considering a fixed-term appointment to the unclassified service, rather than an open- ended appointment to the classified. In fact, the bulk of the appointments to the unclassified staff would in all likelihood "speak for themselves", in the sense that they would, by their very nature, fall within the terms of section 6. It may well be that in such cases no further evidence from the employer will be needed. It is' only,~ in other words, where the evidence pertaining to the position suggests on its face that the position fits into none of the categories of employment set out in section 6 of the regulations that an onus will arise upon the employer to present evidence of its own which would demonstrate that the appointment did in fact fall within one of the specified categories. The panel in Beresford found that the purported appointment of the grievor to the unclassified service was improper because, "the position to which the grievor was appointed was not one which falls within any of the various situations encompassed by the three groups set out in the Regulations, and as contemplated by~ section 8 of the Public Service Act" In a second decision, Miller and Ministry of Revenue, supra, Mr. Mitchnick elaborated upon his rationale in Beresford. In Mille¥, the Employer acknowledged that the ~rievor's work was indistinguishable from the work performed by classified staff and that the position did not fall within any of the three groups then. specified ~in s.6 of Regulation 881 to the Public Service Act. At p. 5 of the Mille¥ decision, Mr. Mitchnick stated: In simplified terms, for the purposes material here, the "classified" staff are the regular or "permanent" employees of the government, and the "unclassified" staff are the employees hired on fixed-term contracts. Those latter contracts, by their own terms, "self-destruct" on their expiry date .... And again, at pp. 11-12: .... section 6 of Regulation 881 which the government had found it appropriate to pass thus served %o inform as to the intent and purpose of section 8 of the Act, and that the government was required to satisfy the Board that an appointment to the 14 "unclassified service" fell within one of the categories stipulated by the government itself in its Regulation. The Beresford and Mille¥ decisions were taken to Judicial Review. In dismissing the applications, Mr. Justice Osler of the Ontario Divisional Court gave the following oral judgment on December 6, 1988: The attack upon the Board has been made on the basis that Section 6 of Ontario Regulation 881 of the Public Service Act is in conflict with Section 8 thereof ..... That is not the view of this Court and we see Regulation 6 as elaborating upon and, perhaps defining the unclassified service to which Section 8 refers. As no conflict exists, we see no error in the finding of the Boards or in the methods by which they proceeded and, accordingly, both applications will be dismissed. Imperative are those words of thelCourt to this panel insofar as Group 1 employees are concerned. It is noteworthy that the Beresford and Miller decisions preceded the amendment to s.6 of Regulation 881 whereby Group .4 employees were added to the descriptions of the unclassified service. it is a fair inference, we think, that the amendment to s.6 of Regulation 881 had its genesis in the Beresford and Mille¥ decisions, and presumably "a catch-all" provision. However, Regulations cannot put into Legislation something that is not there. A Regulation must be in harmony with the intent and purpose of the Legislation. It remains to be determined whether the Court will find that the addition of Group 4 is in conformity with the 15 intent and purpose of s.8 of the Public Service Act. For reasons later stated, this panel leaves that question open to future argument. We read s.6 of Regulation 881 in the belief that it prescribes the ambit of the Ministerial power of appointment to the unclassified service. In the matter before us, the Employer took the position that the grievors had been properly appointed to the unclassified service as they were employed "on an irregular or on-call basis" within the meaning of s.6(1)(a)(iv) of Regulation 881 to the Public ~ Service Act. Further, the Employer offered no evidence that the grievors were other than Group 1 unclassified employees, although the grievances were filed after the amendment to the Regulations which created the Group 4 category. The Employer cited two cases where the GSB dealt with grievors purportedly appointed to Group 1 (iv) of' s.6(1)(a) of Regulation 881 - Carson (Springate), supra, and Rohrer (Wilson), supra. In Rohrer, Vice-Chairperson Wilson referred to the Carson case at pp. 4-5: ...In that case there were four grievors who worked for a number of years as ambulance officers with the Ottawa-Carleton Regional Ambulance Service. They were employed in a series of fixed term contracts. At that time, the ambulance service employed between 18 and 24 unclassified officers, whom it referred to as part-time officers. Because of absences from time to time of full-time ambulance officers for the reasons of vacations, illness, etc., this part-time officers' service~ 16 was required. In 1982, however, the employer in the Carson case adopted a system in which none of ~he part-timers worked set hours. Every Wednesday morning the part-timers would telephone in their availability for the following week and full-time staff indicated how much overtime they could give. On the Wednesday afternoons the employer would call the part-timers to inform them of their hours of work for the following week. Part- timers also got additional hours later by agreeing to fill in on short notice for full-time officers who on short notice had indicated they would be off work. As a result, some of the part-timers could be put on a full-week of work. Mr. Springate commented at page 5: "When they did so, they were not really working on a part-time basis at all. The major difference between them and the regular full-time staff was that they were not working regularly scheduled shifts." With respect to Carson~ for the 32 weeks between March 1987 and January 1988, there was no pattern to the hours. During seven of the weeks he did not work at all. When he did work, it was for anywhere from 5 to 32-1/2 hours. For only 12 weeks did he work in excess of 14 hours. For Chouinard, over a 46 week period he did not work 4 weeks; he worked varying amounts of time during the remaining weeks, between 12 to 45 hours, and he worked more than 14 hours per week during 30 weeks, although only more than 24 hours for 16 weeks. Phillips and Lake generally worked a relatively full work week. Phillips, in a 44 week period worked 36 or more hours per week during 26 weeks; he worked fewer than 14 hours on 3 occasions and took 3 weeks vacation. Lake, in a 46 week period worked for at least 36 hours per week during 26 weeks and fewer than 14 hours for only 2 weeks and one week off on vacation. At pages 9 - 10, Mr. Springate concluded as follows: "Group l(iv) of the unclassified service was described in Regulation 881 as consisting of employees working fewer than 14 hours per week or fewer than nine full days in four consecutive weeks, as well those working on an irregular or on-call basis. As indicated above, Mr. Carson worked less -than 14 hours during 20 of 32 weeks during ~he period of March 1987 to January 1988. His work was i~regular in the sense that the number of hours he worked varied considerably from week to week. In these circumstances we conclude that Mr. Carson generally worked ,on an irregular'basis. It follows that Mr. Carson did come within one of the groups listed in Regulation 881 as 'comprising the unclassified service. The situation with respect to Mr. Chouinard is somewhat more difficult. Mr. Chouinard ' generally worked in excess of 14 hours per week, although less than 24. The hours he worked were irregular not only in terms of when he worked but the number of hours worked each week. On balance, we are satisfied that the term "irregular" accurately describes Mr. Chouinard's employment. It follows that he also came within Group l(iv) of the unclassified service. This brings us to Mr. Phillips and Mr. Lake. The times that they worked were irregular in the sense that the two of them were not scheduled to work on a regular basis. Nevertheless, on an on-going basis both Mr. Phillips and Mr. Lake generally worked a full work week. They did so over five years. In these circumstances it cannot reasonably be said that they were employed on an irregular basis. Given this conclusion, we are satisfied that neither Mr. Phillips nor Mr. Lake fit within one of the groups which according to Regulation 881 constituted the unclassified service." Counsel for the Employer in the Rohrer case was critical of the reasoning in Carson and contended that Mr. Springate had made the interpretive error of applying Group 2 analysis to Group 1 employees. Counsel for the Union in that case submitted that there were no extraordinary circumstances justifying a departure from Mr. Shime's decision in Blake v. Toronto Area Transit O~eratinq Authority 1276/87 concerning the "manifestly wrong" rule and the 18 "exceptional circumstances" test. HoWever, Mr. Wilson found that the grievor Rohrer's work schedule (36 or more hours per week for 32 weeks out of 90) established "a totally random work pattern" and "by any conceivable definition, it was irregular". In the instant matter, Mr. Benedict. argued that the Wilson rationale in Rohrer, like that of Mr. Springate's in Carson, is seriously flawed and that the interpretation of s.6(1)(a)(iv) of Regulation 881 'cannot be determined on the subjective view of various panels of the Board. In our view, the words in s.6(1)(al;(iv) "employed .... on an irregular or on-call basis" must be given their common everyday usage. There is, of course, no definition in Regulation 881 of "irregular" or "on-call" Regular employment is generally understood as steady or uniform in practice, conformable to a rule of work at recurring or stated times or uniform intervals. Irregular employment means work which is done under conditions contrary to regular employment in that it is governed by its own particular incidence as to hours and times of work without reference to a fixed basis such as governs regular employment. The word irregular implies, we think, that there are significant gaps in times in which an employee is called to work. The distinction is defined not so much by the character of the work but by the nature or character of the employment~ 19 In the absence of any definition of "irregular" or "on-call" in s.6 of Regulation 881, whether an employee is employed on an "irregular" basis is a matter of factual determination 'in the context Of s.6(1)(a)(iv) of Regulation 881. Each case must be determined on the basis of its own particular facts. Assuming, for example, that an employee generally works six hours a day, five days a week for a sustained period, we think that it would be an abuse of the word "'irregular" as used in s.6(1)(a)(iv) to characterize the Work as irregular. It is not without significance that reference t~ "irregular or on-call basis" in s.6(1)(a)(iv) is put in the same group as employees who work "for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks" It would seem to indicate that it is not altogether futiie to look at the regularity and the hours of employment. For Brenda Wray, over a period of 26 weeks, she did not work for three weeks and although she worked 19 weeks between 24 hours and 40 hours, the number of hours worked varied significantly from week to week. According to her evidence, her University course effectively prevented her from working in most cases other than weekend assignments, except during the summer months. In our view, she was employed on an i~regular basis. For Paul Houston, the ana'lysis is somewhat more difficult. On the evidence adduced, he worked an average of 30.2 hours a week for 26 weeks during the final contract of his employment. The number 20 of previous term contracts is unknown.to 'the panel although we do know that he was employed from October 23, 1989. We deal with Mr. Houston's situation on.the basis of evidence of the only contract put before this panel. On the evidence, we are led to the conclusion that the grievor Houston was employed on a regular basis during the term of the contract in issue. David Campbell had been employed under a series of consecutive term contracts. For the purposes of the present hearing, the evidence was confined to the period from Miay 28, 1990 to September 30, 1990. Prior to that time he worked as "slotted casual" from October 21, 1989 to November 20, 1989 and from January 15, 1990 to May 27, 1990. During those periods he worked on a regular basis by working the schedule of a classified employee. In addition to his work as a "slotted casual", the grievor Campbell worked an average of 33.8 hours a week between April 24, 1989 and September 30, 1990. To be more specific, we direct, our attention to the regularity of employment during Mr. Campbell's final term contract. Between May 28, 1990 and September 30, 1990, an 18 week period, Mr. Campbell worked an average of 32 hours a week.. In our view, it cannot be said tha% David Campbell works on an:irregular basis within the context of s.6(1)(a)(iv) of Regulation 881. The Employer's second argument is that Article 3 of the collective agreement and s.6 of Regulation 881 are in conflict. The Employer maintains that the two categories of unclassified 21 employees specified in Article 3 of the collective agreement cannot be reconciled with the four groups of unclassified e~ployees specified in the Regulation. Mr. Benedict maintains that under s.30(3) of the Public Service Act, the provisions of the collective agreement prevail and s.6 of Regulation 881 is of no effect. In Bressette and Ministry of Natural Resources, supra, Vice- Chairperson Wilson was faced with a similar argument based largely on the decision in Hicks that there was a conflict between Article 3.4(a) and 3.8 of ~he collective agreement with s.6 of the Regulations. After a critical review of the rationale in Hicks, Vice-Chairperson Wilson reasoned at p. 17: ...I cannot read subsection 344-(a) Of the collective agreement as intending to increase the range of possible appointments under the Regulation nor do I see it by necessary .implication doing such ..... There is no reason for finding that subsection 3.4-(a) was ever intended by the parties to breathe life into an "improper appointment" to the unclassified service. There is, therefore, no basis on which subsection 30(3) become available to rewrite the Regula%ion in the manner in which the Hicks panel purported to do. And again, at p. 18: ...Obviously, subsection 30(3) cannot be used to expand the appointment power beyond the statutory mandate in the Public Service Act. The Beresford language defines the statutory power to.appoint to the unclassified service as something "distinguished ... from the "normal" "permanent" position in the classified source." Apart from the question of the DroDer techniques for "reading down" of statutes or regulations - a constitutional law doctrine, - there is no legal authority for the Board to use subsection 30(3.) to expand the statutory authority of the deputy minister. Furthermore, I add that the bargaining parties cannot through the.collective agreement expand those statutory powers of appointment. Only the 22 Legislature can change the Public Service Act. In our view, the Wilson rationale in ]~ressette disposes of the Employer's second argument. It may well be that a provision in 'the collective agreement ~that is in conflict with a provision of a regulation "as it affects the employees of a bargaining unit.covered by the collective agreement prevails over the provision of the regulation" as stated in s.30(3) of the Public Service Act. However, the power to appoint to the unclassified service is guided by s.6 of Regulation 881. Briefly stated, the Minister can derive no power from the provision of a collective agreement to make appointments to the unclassified service. That power of appointment must be conferred by s.8 of the Public Service Act. In the instant matter, Mr. Benedict did not suggest that the grievors' appointments were intended' to be anything other than Group 1 appointments. At this stage we return to the question of the applicability of Group 4 which was put into this case not by the parties but by the panel. Following final argument, the current vice-Chairperson requested submissions as to the possible applicability of Group 4 to the facts of this case. Subsequently, submissions were made by the parties following the final hearing date. We infer no criticism of either Counsel; however, the submissions were brief. This is perhaps understandable given that 23 Group 4 had not been part of the initial submissions of either party. In our view, the question of applicability of Group 4 deserves a greater explanation than was accorded to it in the course of this case. As earlier indicated, we leave the matter to another occasion. The moral here is that a Vice-Chairperson should be slow to put into a hearing a matter that was not put there by Counsel. On the evidence, we are persuaded that the appointment of Brenda Wray falls within Group 1 of s.6 of Regulation 881 of the Public Service Act. However, we find that the purported appointments of Paul Houston and David Campbell under s.6(1)(a)(iv) were improper. Since the matter of remedy was not argued before us, the issue is remitted to the parties to fashion an appropriate remedy with the Board retaining ·jurisdiction. Prudence suggests that it would not be amiss to recall the words of Vice-Chairperson Samuels in the remedial hearing of Beresford/Millev where he stated at p. 9: However, in our view, we do not have the authority to turn the grievors into classified employees. "Appointment" is within the exclusive domain of the employer, pursuant to section 18(1) of the Crown Employees Collective Bargaining Act." We would add, as did Mr. Samuels, that consideration must also be given to s.6 of the Public Service Act and Articles 4.1 to 4.3 of the collective agreement which provide for posting of vacancies 24 and a competition among applicants. It is open to the parties to bring the matter of remedy to the attention of the Commission under s.6 of the Public Service Act in light of this ruling and the provisions of the collective agreement. DATED at Brantford, Ontario, this 18 day of February, ~2. R~ L. VERITY, Q.C. - VICE-CHAIRPERSON D. CLARK - MEMBER ADDENDUM GSB'#1798/90, 1799/90, 1803/90 OPSEU (Wray/Houston/Campbell) and The Crown in Right of Ontario (Ministry of Correctional Services) I would like to emphasize that my concurrence with this award is based solely on the fact that during the course of the hearing it was the position of the Employer that the grievors were properly appointed to the unclassified service as Group 1 employees who work "on an irregular or on-call basis" within the meaning of s. 6(1)(a)(iv) of Regulation 881 to the Public Service Act. The Employer's evidence and subsequent argument was that the grievors were Group 1 employees even though the grievances were filed after the March 1989 amendment to the Regulation which created the Group 4 category. With respect to the issue of written submissions concerning the possible applicability of Group 4 to the facts in this case, I must agree with the Vice-Chair's comments and the conclusion reached. As such, the Group 4 matter will have to be left to another occasion. Don ~. Clark SCIiEDULE "A" A~TICLE 3 -- L'NCLASSIFIED EI",I PLOYEI'2~; 3.1 The only terms of this Agrctmcnt :h~t apply to emplo.~ees v,'ho are not cb, ii servants ,,re those that are set out in this Article. {.~NC{,ARSl F{£L) .~TA Fl" OTIIER THAN $£ASONAL EMPLLi~,'EI:iS 3.2 Sections 3.3 to .I. 16 apply only to un¢:lassified staff other than seasonal emplo.ve~s. WAG£5 .1_1. I The rate of the equivalent civil'service classification shall appiy. If there is no equivalent classification. ihe rate shaft ~ set t,)' the ministry involved and the Union ,~hail ha,,e thc right to negotiate the ratc during {he appropriate salary negotiations. .t.3.2 Employees coYered by this Section shall be entilled to the same provisions regarding rctroacfivily of salary revisions as those agreed upon for the Civil Servi'ce Salary Category to which lbey correspond. OVERTIME 3.4 One and one-half I I '/:) !.imes the basic hourly rate shall be paid for authorized hoars of work performed: tn) in excess of s~.':ven and one-queer(er {7%) or eight {~) hours per da.v, as appticable~ where employees work a r,'~u~ar thirty-six and one-quarter (36%) or forty (40) hour work week. as applicable, or {b) in excess of the scheduled hours for employees w~o work on ;, regu~arl.v sched~,led work day exceeding eight (8) hours, or tel,in e~cess o[ thc employees' regul.~rly scheduled work week. or (d) ir+ exce~s of (hire?six and one-quarter { 36~/~) or forty {40~ hours per week where ernplo~.~es do nOl have regularly scheduled work da?s. REPORTING PA',' 3..5.1 Where an emplo.~ee report's for work at his scheduled starting time and work is not available, he shall receive two {2) hours' pay al his basic hourty Nmwi{hstanding sub-~¢c{ioo .t.5.1. ,~her¢ an employee has hcen scheduled Id work for tes~ than two(2) hours, he shall {eccive puymerz~ for ~he hours scheduled, 3.5.3 This section shall not apply where th{~ emplo)'ee has been notilqed, at least one (I) hour prior to his scbedu{ed starting time. nol to report for work. HOLIDAY'S 3.6 Four percent (4%1 of gross pay. not including vacation pay, shall be added to tt{e employee's regular pay Id compensale for the holidays as defined in Article 48 (Holidays).-When employee is required to work on any of these holidays, fie shall be paid two (2) times his basic hourly rate for ail hours worked in addition to the four percent {4%). I'{owever, where the employee's equivalent civil service classification is in Schedule 6. th,. employee sh,nll receive his regular day's pay when required to work on such a holiday in add,lion Id the four percent (4=~o). VACATIO~ PAY '" 3.7 Four percent (,~%) of gross pa)' shall he added Io ~mpioyc~'s te~u~ar pay m ]i~u of vacation leave with pay. A~NDANC~ CREDITS AND SICK LEAV~ 3.8.1 Employees who work thirty-slx and one~ua~er (3fi%) or for~y ~40) hours per week shall attendance credils of one and one-quarter (I ~)days for-each c~lendar month of full atlendan~. A~tendance er~dils may ~ used for purposes only in the event that an ~mployee is unable to attend Io his official duties by re,on of illness or ~jury, Howevet, aCcumulated ~¢ndance c~dils earned prior to Ap~l I, 1978 ma~ ~ransferred Io Ihe Classified Service whe~ Ihe appoin~men~ {o ~he Classified Servi~e is mad~ from cominuous, unbroken, full-~ime Unclassifi~ Ser- via. 3.8.2 After ~ve (5) days' absence c~used by sickn~, no leave with pay shall be allowed unless a certificate of a legally quaIified medical practitioner is Io the aeputy minister ol the ministry, certllySng 1~31 Ihe ~mployee is unable to attend ~o his officlal Notwithstandin~ sub-section 3.8.2. where it suspected Ihal l~er~ may ~ an abuse of sick leave. the deputy minister or his designee may require an employee to submil ~ medical certificale for i of absence of Jess Ihsn five 15) days. O.H.I.P. ~.9 One hundred percenl (I~%) of the Onlario Heallh Insurance Pla~ monthly prcmium shall ~ paid for ~mployees who work a regular thi~)'-six and one-quarler (36%) or forty ~40) hour work wetl and who have been so employed for three (3) calendar BEREAVeMeNT LEAVE ~.10 An employee who is scheduled ~o work mor~ than twenty-four (24) hours during a week and who would otherwise have been al work,shall ~ allowed up to Ihree (3) days of leave.oLabsence wilh pay in the event or,he death of his spouse, molher, faiher, mother-ln-law, father-in.law, son. ~aughter. brother, sister, ward or guardian. However, in the evem of lhe death of his sis~er-in~law, son-in-law. daughler-in-law, bro~her-in-law, grandparent or grandchild, he shall ~ allowed only one (I)day's leave-of-absence wilh pay. HEALTH AND SAtiETY 3.11 The Employer shall continue to make reasonable provisions for Ihe safely and health of ks employees during thc houri o[ lheir tmploymem. It is agreed that both the Employer and Ihe Union shall co-opera~e Io ~he fulles~ exten~ possible in the prevention of accidents and in ibc re~onabte promotion of safety and heallh of all employes. TERMINATION OF EMPLOYMENT 3.12 Employmenl m~y be ~erminaled by ~he Employer any time with one ~ I) week's nolice, or pay in lieu thereof. APPOINTM ENT'TO TH E CLASSIFIED SERVICE Where an employee is a@polnted to thc Classified Service and has warkcd mote than tv, cnt)'-four (24] hours per week on a continuous basis prior to appointmcni ~o thc Classifi~:d Service. ~hc time he ac~uatly worked within I~e previous may ~e considere~ Io be pan of his probationary period to a maximum o[ si~ (6) months, ],13.2 Notwilhstanding 3.13.1. where an employee a~poinled Io th~ classi~ed service as a regular part-time c~vi~ str~an~ an~ h~ worked a~ 1cast minimum hours specified in Article 61.I on a continuous b~is imm~dialely p~ior to appointment ~o the classified se~ice, the time he actually worked within Ihe previous y~ar may ~ co~sid~red to pa~t of bis p~obationary ptri~ to a m aximum of six (6) momhs. Union dues shall be deducled [~om an employ~ covered b~ this Section. These du~s shall be remi~cd to t~t Union quarterly, accompanied by tbt name. social insurance number, minislry and where applicabi~, ~e civil service classification u~d tslablish Iht wage ~ate of lh¢ ~mploy~e on who~ behalf the deduclions have bc~n made. Appendix 2, atlached. 14.2 The Union mus~ advise the Employer in writln$ the amoum olios dues for employees covered by Ihis Section. The amount so advised shali conlinue ~o be deducted u~ti~ changed by a further written notice to thc Employer signed by authorized officials of the Union. 3,14,3 The Union agrees to indemnify and save the Employer harmless ~rom any {iabitlty atlsiag out the operation of S¢clioa 3.14 of this Arlicle~ CONVERSIOH OF UMCLASStFIED POSIT~ONS TO CLASSIFIED POSITIONS Effective April L 1991. where the sanq¢ work has been performed by an employ~ in thc Unclassified Servic~ for a ptd~ of at least ~wo ~2) consecutive years, and where ihe ministry has de.ermined that Ihere is a cont~nulng need for that work ~o be performed on a ~ull-~im, basis. Ihe ministry shall eslablish a position within 1he Classi6ed Se~ice to ~rfot~ ~hat work. and shaft post a vacancy in accordanc~ with Anicl~ 4 (~osllng and Filling Vacancies or N~w Positions). ].t~.2 For the purpos~ of ~his section. "full..time~ shall mean a minimum of one ~housaed scv~ and Ihirly-two and Ih~t quarter (1,7~2%) slraight- time hours or one thousand nine hundred and t~e~ve (I.912) s~raigh~,~ime hours in each year, as applicable, including authorized' leaves or absence. However, all hours worked by an employee while h~ is r~placing a classified employee who is on an amhoriz~d leave of absence shall nol be included in computing ~e annual hours worked Ihe unclassiGed employee. OTHER APPLICABLE ARTICLES The fo~tow~n8 A~ides shall atso apply unclassified slaff olher than ~aso~al employees: Articles A, 1.9. II, 12. ~5, f6. 17,21.22. 2~. 2~, 27, 32, ~6 and 8~. SEASONAL EbtPLOYEES ,.,. Y17 Sections 3. lC to 3.36 apply only to seasonal employees. DEFINITION 3.18 A seasonal employee is an employee appointed for a period of at least eight {gl consecutive weeks to an annually recurring full-time position in the unci'assitSed service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36F,) or forty (40) hours per week, as applicable. PROBATIONAR. Y PERIOD 3.19 The probationary period for a seasonal employ'ce shall be two (2) full periods of seasonal employment a(at/east eight (81 consecutive week~ each. wo~rked in consecutive years in the same position in the same SENiORiTY 3.20.1 A seasonal empLoyee's seniority within a ministry witl accumulate upon completion of his probation- ary period and shall include: (al all hours worked as a seasonal employee ri[ the st ralght-time rate; (b) periods of authorized paid leave in accordance' with Section 3.32. Attendance Credits and Sick Leave. 3.20.2{a) A seasonal employee will lose his seniority when: (i) he voluntarily terminates his employment. (ii) he is dismissed (unless such dismissal is reversed through the grievance procedure), (iii) he is absent without leave in excess of ten (10) consecutive work lng days. {iv) hc is unavailable for or declines an offer for re-emp[oyment as provided in Sect:,on 3.21 (Job Security), or (v) he ceases to be in the employ of the ministry for a period of more than twelve (12) months. .~.20.2(b} Notwithstanding subsections 3.20.2(ay(iv) and iv). a seasonal employee shall nol lose his or her seniority, nor acquire additional seniority, where he or she is ' unavailable for or declines an offer for re- employment for the reason that: fi) she is pregnam and is expected to give birth on a date which/ails within thc contract period for which she is offered rc-employmem. (ii) thc employee or thc employee's spouse is expected to give birth or has given b~nh within s~venteen ( I 7) weeks of the commencement of the contract period for which the employee is offered re-.employment, or (iff) a chiJd has been placed for adoplJon in Ihe employee's home within seventeen (17)weeks of thc commencement of the contract period for which the employee is offered re- employment, and the employee submits a ctrt:d'~cate from a ~egal~y qua{i/3ed medical practitioner verifying the antici- pated or actual date of birlh, or documentation establishing the date of placement of a child in the employee's home, as ~pplicable. JOB S~CURITY J21.1 Seasonal employees who have completed their probationary period shall be offered emp[oymenl in their [ormer positions in the follo~ving season on the basis of seniorit:r'. 3.21.2 W~re ~t E~p~o~tr ~educts I~c number of seasonal employees prior to ~h~ expi~ dat~ ment, ~asona~ employees in the same position shall ~ laid off in ~v,trse order of senic~rity, 3.21.3 A scasonal employee is r~sponsible for advising his m~nist~, in thc manner eslablished by his minisl~, of his currcn~ phone number and address and responsible for ~he accuracy and complezeness of the information provided. WAGES 3.22. I The rate of the cquivaJcnl civil service classification s~aIt apply, tf ther~ is no equivalent cI~si~cation. Iht rate shall be set by the m~nistry an~ the Union appropriate salary negotialions. 3.22.2 Seasonal employees shall ~ entitled to (he same provisions regarding retroacfivi~y of sa~a~ sions as ~hose agreed upon for ~bc Civil Sec'ice Sala~ Category to which they correspond. 3.22.3 S~asonal employees shall ~ eJiglble, ba~d upon merit, to progress ~hrough the salary range al ~he start of each period o[ seasonal employmtm in lhe same position ~n thc same minJst~' after they have completed their p~obationary pcri~. OVERTIME 3.23.1 The overtime rale shall ~ one and times Ihe employees basic hourly rare. 3.23.2 In th~s Section. "overtime" means an authorized period of work catculaeed ~o the near,si half-hour an~ ~efformed on a scheduled working day in addition Io Iht regular working period or ~fformed on a scheduled day~s) off. O~trximt shaU be paid within two (2'1 monlhs of pay period wilhin which the overtime was actually worked, 3.23.4 ~mployecs who are in positions ~ho~e correspond- mg classifications are assigned to Schedule 6 shall not qualify Mr overtime off a norma, workiag When tequlred lo work on a day off they shall receive eqalvalcnt lime of L Notwithslanding sub-~ctlon 3.23.4. ~onal employees who are in positions whose corr~pond- lng classifications are assigned ~o Schedu~ 6 and w~O a~e assigned to fores~ fire ~ghlmg or rela~ed dulies shaU ~ paid one and one-ha[fi I~) limes ~he employcc'S b~sic ~o~fIy rate. robe cal,:ulat~d on ihe basis of Ihirty-s~x and one~uaner (3(~) hou~ ~r week, for all such work after e~ht tS) ~oun twenty-four (24) hour ~rJ~. SEASONAL EMPLOYEE BENEFITS - 'GENERAL 3.24.1 Sa[ar), shall mean only those earnings from scheduled straight-time hours during the contract period, 3.24.2 Coverage for Basic Life, Supplementary Health and Hospital (including Vision Care and Hearing Aid benefits), and Dental Plan benefits shall commence on the first of the month coinciding wilh or immediately following two months of continuous emplo,vment, except Ihal on subsequenl consecutive periods ot' seasonal employmenl which qualify employee for these benefits, coverage shall commence on Ihe flrsl of the month coinciding with or immediately folio.wing the start of ~he period of employment. 3.24.3 All coverage under the Basic Life Insurance Plan, the Supplementary Health and Hospital Plan (including Vision Care anct Hearing Aid benefits) and the Dental Plan will cease al the end of the month in which the contract of employment terminates, except that an employee may continue the coverage at his own expense during the periods between seasonal employment by arranging to pay the full premiums at least one (I) week in advance of thc first of the month in which the coverage is to take effect through his ministry personnel or payroll branch. Failure by the employee to pay the full premiums as specified will disentille the employee to any further benefits under lh[s sub-section. There is a thirty-one (3t) day grace period following thc month in which employment terminates during which the Basic Life insurance remains in t'orce. ,1.24.4 During Je,a~,'es-of-absence whhoul pay during periods of seasonal employment, employees may continue participating in Basic Life, Supplementary Health and Hospital (including Vision Care and Hearing Aid benefits), O.H.I.P., and the Dental Plan by arranging to pay full premiums at least one (I) week'in advance of the first of the month in which coverage is to lake cffecl lhrough their ministry per. sonnel or payroll branch. 3.24.5 Notwithstanding sub-section 3.24.3, all benefits coveraffc under any ot'lhe provisions of'this Article shall cease al the end of Ihe month in which a seasonal emplo)'ee's employment terminates: (a) for any of the reasons set out in sub-section 3.20.2, whether or not the employee has completed his probationary period, or (b) as a result of termination of employment under Section 3.34. BASIC LIFE ~,25.1 The Employer shatl pay on,: hundred percent (100%) o( thc monthly premium o1' [he gas~c.Lit'c plan. 3.25,2 Thc Basic Li, fc [r~surance'Plan sl'~[i provide: (a)coverage of I'ive thousand dollars ($5,00~) during Iht: period ut'employment, (b) a conversion option on termination insurance coverage may b~', exercised without evidence ol' insurability and providing cover- age up to the amounl [or which the employee was insured prior to ter,'ninalion (less the amount ol'coveragc provid~:d by lhe Employer in the case ut' retirement). The premium of such policy shall be at the currenl rates of the insuring company. Application must be made within thirty-one (3~) days oi' the date of termination or insurance. 'rhe Employer will advise terminaling cmploy,:es or this conver- sion privilege, The minimum amount that may be converted is two thousand dollars ($2,000). The conversion options shall be: I. Any s~andard lil'e or ~mdowment p[ans (without cqsability or doub[e-indemn{qf berte- flts) issued by the insurance carrier. 2. A one (I) year term insurance p}an which is con'~ertlb~c to the standard ]Jl'e or endowment plans referred to in I, above, 3. A term to age slxty-~¥c (6.5) insurance plan. SUPPLEMENTARY HEALTH AND HOSP~,TAL (I"4CLUDING VISION CARE AND HEARING AiD) 3.26.1 The Employer shall pay one hundred percent (IOOf. t) o1' the monlhly premium of the Supplemen- tary H~atth and Hospital plan. and ~fty percenl (50~c) of the momhty premium I'or the Vision Care and Hearing Aid pJan. The employee shall pay the balance of the premium for the ~ision Care'and Hearing Aid plan through ~ayrol] deduction. 3.26.2 Bene~ts provided under the Supplementary Hca[th and Hospital plan. including Vision Care and Hearing Aid benefits, shah be the same as those provided for full-time civil servant.~ and described in ArticJe 44. DENTAL PLAN The Employer shalt pay one hundred percent (100~.c) of the monthly premium for ~he Dental Plan. 3.27.2 B~neiSIs provided under ~he Dental Plan shall be the same as those provided for rull-tir.'~e civil servants and described in Article 57, except that there shall be a limit of one thousand dollars ($I.000) ;,n benefits payable t'or expenses incuned in a calendar year. unless the employee mair~tains coverage during the whole period between seasonat employ- ment. pursuant to sub-section 3.24.3, in whi~'h case there shall be no limit on bcnefils payable in a calendar year. ,' ONTARIO HEALTH INSURANCE PLAN .t.2g Thc Employer shah pay one hundred percent (100%) of each seasonal employee's Ontario Health lhsurancc Plan monthly premium. Benefits will be as provided by Ihe O. H.I, P, plan. VACATION PAY' 3.29 Five and three-quarters percent (S.7S%) or'gross pay shall be added Io the employee's regular pay in lieu of vacation leave with pay. HOLIDAYS Four percent (4%} of gross pay. not including vacation pay, shall bc added to the employee's regular pay to compensate [or the holidays as defined in Article 48 (Holidays). When thc employee is requi~ecl to work on any of these holidays, he shall be paid two (2) times his basic hourly rate [or all hours worked in addition Id the four percent (4%). However. where the employee's equivalent civil service classification is in Schedule 6, thc employer sha~l receive his regular day's pay when required to work on such a holiday in addition to thc four percent BEREAVEMENT LEAVE A scasonat employee who would otherwise have been at work shall be allowed up to three (3) days leave-of-absence with pay in thc event of the death of his spouse, mother, father, molher-in-Jaw. father-in.law, son, daughter, brother, sister, son-in- law. daughter-in-law, sister-indaw, brothcrdndaw, grandparent, grandchild, ward or guardlan, ATTENDANC~E CREDITS AND SICK LEAVE 3,$2.1(a) A seasonal employee shall earn attendance credits orone and one-quarter month of full attendance. Attendance credits may only bc used for income proteclion purposes in the event ~hat an employee is unable to attcs~d to his duties by r~ason of illness'or injury. 3.32.1(b) An employee shall accumulate unused attendance credits carried after thc date of ratiiqcation of this collective ~,grccment fr~m peck. od to period' of seasonal employment within the same minislry. 3.32.1(c) Attendance credits earned and accumulated by an employee pursuant to Article 3.32. ~(a) may be used only during the employee's per{ods of ~asonat employment within a ministry. 3.32.1(d1 An employee shall'lose his or her accumulated attendance credits where: (il the employee loses his or her seniority for any reason s~t out in Article 3.20.2; (ii) the employee's employment is terminated pursuarrt to Ar~ick 3.34; or (iii) the employee is appointed to thc classified service. 3.32.2 After five (5) days' absence caused by sickness or injury, no leave withe pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to thc deputy minister of the ministry, certifying that the employee is unable to attend to his duti~. 3..t2.3 Notwithstanding sub-section ~.32.2, the deputy minister or his designee may, at his discretion, require an employee to submit a medical certificate for a period of absence of :,ess than five ($) days. HEALTH AND SAFETY ¢ 3,.13 The Employer shall continue to make reasonable provisions for ihe sal.ely and health o;' its employees during the hours or iheir emp[oymerlt. It is agreed Ihat both the Employer and the Union shall co-operate to the fullest extenl possible in thc prevention of accldcnts and in the reasonable promotion of safety and hcahh of all c:mployccs, TERMINATION OF EMPLOYMENT 3.34 Seasonal employees who have not ¢c, mpletcd their probationary peri~ may be terminated by Employer at an)' tirne with one ([) we,..k's notice, or pay in lieu thereof. UNION DUES 3.3S.I Union dues shall be deducted from an employee covered by this Section,These dues shall be remitted to the Union quarterly, accompanied by the name, social insurance number, ministry, and where appticablc, thc civil service classification used to establish the wage rate of the employee on whose behalf the deduction is made. See Appendix attached. 3.35.2 The Union must advise the Employer in writing of the amoun! of its dues for employees covered by this Section. The amount so advised shall be deducted until changed by a further written notice to the Employer signed by authorized officials of the Union, 3.35.3 The Union agrees to indemnify and save the Employer harmless from any ~iabili[y arising out of the operation of section 3.35 of this Article, OTHER APPLICABLE ART['CLES 3.36 The following Articl..-s shall also apply to seasonal · employees: Articles A. 1,9, It. 12, I:~. 16, 17.21,22. 23, 27.32, 36, and 85. SCHEDULE SCHEDULE 'C' [ RFC£IV£O OZ/U? 11:3El 1991 AT 5 '.G~SSZ P~' I Irxr~IcD PnGE ] FEB ? '~1 12:34 FR~'~ MTEDC SUPT, OFFICE PAGE.881 FEB 15 91 15:d0 FROM MT[DC SUPT. O~FICE PAGE.003