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HomeMy WebLinkAbout1991-0803.Union.96-11-12 ONTARIO EMPLOYES DE LA COURONNE C RO WN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2;'00. TORONTO, ONTARIO, M5G lZ6 TELEPHONE/T~L£PHONE: (416J 326- ~80, RUE ~)UNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G ;'Z8 FAC$1M~LE/T~*LECOP.~E ; [4;'6) 326-;'396 GSB # 803/91 OPSEU # MCS-U432 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grlevor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFOREs N. Dissanayake Vice-Chairperson T. Browes-Bugden Member D. Montrose Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J. Benedict EMPLOYER J.F. Benedict Dispute Resolution Services Inc. HEARING August 13, 1996 2" DECISION This decision deals with an implementation issue. By decision dated December 19, 1994, the Board determined a policy grievance wherein the union had alleged that the employer had contravened article 3.15.1 of the collective agreement by failing to convert unclassified positions to classified positions at the Whitby Jail. The parties had a number of disputes as to the interpretation of article 3.15.1, as it applied to the particular fact situation. Having considered the evidence and submissions, the Board (with Board Member Montrose dissenting) provided its interpretation of the disputed provisions of the article and went on to make the following findings and directions: On an application of the foregoing interpretations to the evidence before us, we make the following findings: (a) The hours performed by any unclassified officer in carrying out the duties relied on by the union in terms 1, 3 and 4 (supra p. 3) are to be included in the computation of the hours for purposes of article 3.15.2. (b) We find that by continuing to assign unclassified employees to perform the work in question, the employer has determined that there is a continuing need, as of the time of the grievance, for the performance of that work. Therefore, that requirement of article 3.15.1 has been met. (c) The hours of work performed by unclassified officers, while replacing classified officers who were at work in any capacity are to be included in the computation for purposes of article 3.15.2. Those hours are not excluded because the classified officers are not "on an authorized leave of absence" within the meaning of article 3.15.2. 3 Taking into consideration the Board's interpretations and findings set out above, the parties are directed to endeavour to agree upon the number of hours of work (items 1, 3 and 4 at p. 3 supra) and consequently the number of positions, if any, that are required to be converted pursuant to article 3.15.1. The Board remains seized in the event the parties are unable to reach agreement on those issues. Subsequently the parties came to an agreement that as a result of the Board's interpretation of article 3.15.1, four unclassified positions had to be converted. However, they had a number of disputes as to how and when those positions were to be filled. The union requested that the Board reconvene to deal with that issue. Functus Officio Mr. Benedict for the employer takes the position that the Board has no jurisdiction to deal with issues relating to the filling of the converted positions and that the Board is functus officio for those purposes. This position is based on the specific wording this Board used in its decision in retaining jurisdiction. Mr. Benedict points out that the Board directed the parties to endeavour to agree upon (a) the hours of work and (b) the number of positions, required to be converted. Then the Board wrote: "The Board remains seized in the event the parties are unable to reach agreement on those issues". Counsel therefore argues that the Board remained seized only with regard to "those issues", namely, the number of hours and the number of positions, since the parties had reached agreement on both issues over which the Board expressly 4 retained jurisdiction, it is submitted that the Board is functus officio with regard to everything else. The Board strongly disagrees with the employer's contention. In our view, with or without an express reservation, the Board has jurisdiction to complete its mandate under the legislation and the collective agreement. The Crown Employees Collective Barqaining Act in section 19(1) stipulates that after giving the parties full opportunity to present their evidence and to make their submissions, the Board "shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement". The "matter" to be decided here was the grievance alleging a violation of article 3.15.1. That article envisages not only a paper conversion of positions but the filling of those positions through a posting of a vacancy in accordance with article 4. Therefore the Board's work is not complete until the positions are converted, and posted as mandated by article 3.15.1. In the initial decision, the Board did not go even so far as to decide if article 3.15.1 had been violated, let alone the question of filling of vacancies. The Board gave certain interpretations of the article and directed the parties to determine if any positions were required to be converted. The parties by agreeing that four positions were required to be converted, have in effect agreed that article 3.15.1 was breached and have now come before the Board. The Board has jurisdiction, 5 with or without an express reservation, to direct the parties as to what ought to be done in order to rectify the breach. Furthermore, when the Board expressly retained jurisdiction with regard to the two calculation issues there was no intention thereby to decline any further jurisdiction with regard to everything else. In our view, it would have been a reviewable error if the Board had attempted to decline jurisdiction without having completed its task of fully deciding the grievance. The application of the doctrine of "Functus Officio" to administrative tribunals was examined by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, (1989) 62 D.L.R. (4th) 577. Mr. Justice Sopinka for the majority reviewed the traditional doctrine of "Functus Officio" and concluded that the doctrine should be applied less vigorously to administrative tribunals. At p. 596, Mr. Justice Sopinka wrote: I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra. 6 Furthermore, if the tribunal has failed to dispose of an issue which is fairly rai~ed by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute: See Huneault v. Central Mortgage & Housing Corp. (1981), 41 N.R. 214 (F.C.A.). For those reasons, the Board concludes that it is not functus officio and that it has jurisdiction to deal with the issues raised. The effect of the freeze on hiring on article 3.15.1 This grievance was filed on May 1, 1991. The Board's decision was issued on December 19, 1994. It is common ground that subsequent to this, the Assistant Deputy Minister of Correctional Services by a directive dated July 24, 1995 ordered "a freeze on all recruitment for positions in all institutions throughout the Correctional Service Division", and that "competitions that are in process are to be frozen, unless a job offer has been made to the successful candidate in writing as of this date". By a further memorandum dated August 2, 1995 the ADM announced inter alia, that "Effective immediately Senior Management Committee has decided to freeze the staffing of all Ministry vacancies, lateral transfers and temporary assignments". 7 Employer counsel pointed out that the "freeze" was applied across the Ministry. The freeze was imposed in good faith as part of the government's policy of down-sizing the Ontario Public Service. It was therefore submitted that the employer's obligations in implementing the Board's decision and complying with article 3.15.1 should be seen in the context of "the reality of down-sizing in the Ontario Public Service". The effect of this same "freeze" on this same employer's obligations under article 3.15.1 was considered by the Board in R~e OPSEU Union Grievance, 1106/92 (Kaufman). There the parties had settled a policy grievance alleging that the employer had violated article 3.15.1 by failing to convert and post certain positions at the Quinte Detention Centre. As a term of the Minutes of Settlement, dated May 11, 1995 the parties agreed inter alia to create and post certain classified positions, within 60 days of May 8, 1995, after the surplus list was cleared. The employer did not identify any surplus employees as eligible for the created classified positions and therefore in accordance with the Minutes of Settlement they were posted and applications were received. The freeze on filling vacancies referred to earlier in this decision was imposed by the ADM at this stage of the competition. In purported compliance with the freeze directive, the employer decided to hold the posted competitions in abeyance and reserve the 8 positions indefinitely for surplus employees who may get on the list in the future. The Board recognized that the employer acted with the best of intentions, in the belief that it was acting in compliance with the freeze directive issued by the ADM. Nevertheless, it was held that the employer was bound by the terms it had agreed to in the Minutes of Settlement. The Board held at p. 16-17: Memoranda of Settlement are binding contracts between the parties. They are as binding as Collective Agreements. As such, their terms and provisions can only be set aside by further agreement of the parties or by superseding legislation or regulation, or impossibility or frustration as it is enunciated in the common law of contract. An arbitrator's authority is drawn from legislation and the parties' Agreements, including their Settlements. In the absence of a further agreement, or overriding legislation, or impossibility or frustration, an arbitrator is obliged to give force and effect to the parties' expressed intentions as s/he interprets them, as of the time they drafted and signed their settlement or agreement. Article 3.15.1 clearly contemplates that once established the positions will be posted. It says "... the Ministry shall establish a position within the Classified Service to perform that work and shall Dost a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions)". (emphasis added). The parties would not have agreed that a posting was required, without also intending that the posting will be completed by filling the vacancy posted. 9 Just as much as the Board in Re Union Grievance (Kaufman) (supra) held that the administrative directive imposing a freeze on filling vacancies cannot override the terms of the minutes of settlement, such a directive did not have that effect on a provision of the collective agreement itself or an order issued by this Board. The government's policy of down-sizing the Ontario Public Service notwithstanding, the employer must conform with the terms of the collective agreement and the decision of the Board interpreting the same. Article 3.15.1 clearly envisages the creation and posting of positions where certain conditions are met. The parties having agreed that four positions were required to be established, article 3.15.1 is fully complied with only when those positions are filled pursuant to a posting under article 4. This Board's jurisdiction is not exhausted until that process is completed. How and when are the positions created pursuant to article 3.15.1 to be filled: The union's primary position is that the four positions created must be filled through a competition limited to unclassified employees at the Whitby Jail. The employer argues that article 3.15.1 does not limit it to competitions and that it is free to fill the four positions through any of the methods of filling a vacancy allowed under article 4. It is particularly argued that the employer is entitled to fill the positions by deploying employees on the surplus list. Although there were no 10 eligible employees on the surplus list at the time of the grievance, or at the time of the hearing, the employer takes the position that, in view of the "extra-ordinary times of Ontario Public Service down-sizing and the freeze on hiring in the Ontario Public Service", it should be allowed to reserve the four positions indefinitely for employees who may be put on the surplus list in the future. It is further submitted that if a posting is made, the employer should have its usual right to determine the area of research. In resolving these issues one must refer back to article 3.15.1 and its purpose. Article 3.15.1 reads: 3.15.1 Effective April 1, 1991, where the same work has been performed by an employee in the Unclassified Service for a period of least two (2) consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions). In its earlier decision in this matter, the Board concluded that the purpose of article 3.15.1 was not to confer any rights on individual employees but to add classified positions to the bargaining unit. Thus at p. 7 it wrote: It must be remembered that the provision is about conversion of "positions" and not about converting the status of individuals from unclassified to classified. Even if one employee performed all of the work relied upon by the union, it is clear that article 3.15.1 does not envisage that that particular employee's status would 11 be changed from unclassified to classified. Instead, a position in the classified service is to be posted, and filled according to the provisions of the collective agreement. Article 3.15.1 does not confer any individual rights, but envisages the addition of classified positions to the bargaining unit. In our view, article 3.15.1 is an attempt by the parties to stipulate some guidelines to limit the employer's right to use unclassified employees to perform work for which there is a regular and continuing need. In Re Norland, 3160/92 (Gorsky) the Board recognized that article 3.15.1 was "clearly intended to increase the rights of unclassified staff other than seasonal employees". (p.30). In that case, an unclassified employee had unsuccessfully applied for a position created and posted in accordance with article 3.15.1. He filed a grievance alleging a breach of article 4.3.1. The employer made a preliminary objection based on the generally accepted proposition that while they may apply for postings under article 4, members of the unclassified service were not entitled. under the collective agreement to grieve under article 4.3.1. The issue before the Board was whether the fact that the posting was one made pursuant to article 3.15.1 gave unclassified employees a right to grieve under article 4 - a right which'they generally did not have. Following from the recognition that article 3.15.1 was intended to benefit unclassified staff other than seasonal employees, the Board held that the qrievor was entitled to grieve 12 in the particular circumstances. At pp. 30-31, the Board reasoned as follows: Art. 3.15.1 applies to unclassified staff other than seasonal employees. If it is to be interpreted as suggested by counsel for the Employer, then all it means is that any non-seasonal position in the unclassified service that fulfils the "when" test identified by counsel for the Union has to be posted. The reason why art. 3.15.1 deals only with positions held by employees in the unclassified service other than seasonal employees is because the "when" is identified in relation to positions where "there is a continuing need for that work to be performed on a full-time basis" and this has been the case "for a period of at least two (2) consecutive years .... " The situation would not arise in the case of positions associated with seasonal employment. Nevertheless, given the literal meaning suggested by counsel for the Employer, all the Employer would have to do to comply with art. 3.15.1 would be to post the vacancy. If counsel for the Employer is correct, neither seasonal or non-seasonal unclassified employees would have a right to grieve an alleged violation of art. 4.3.1 after they applied for a position posted pursuant to art. 3.15.1. That is, their rights in this regard would not have changed as a result of the introduction of art. 3.15.1. At the same time, there would be a definite disadvantage to unclassified staff other than seasonal employees, such as the Grievor, whose positions were converted from unclassified to classified ones pursuant to the application of art. 3.15.1. They would risk losing their jobs without recourse to arbitration based on an alleged violation of art. 4.3.1. Other unclassified employees who apply for the position and are unsuccessful undertake no such risk. In our view, the combined effect of this Board's earlier decision in this matter and its decision in Re Norland is that the Board has recognized that while article 3.15.1 was not intended to confer rights on individual employees, it was intended that it 13 would increase the rights of unclassified staff (other than seasonal employees) generally as a group. With that purpose of article 3.15.1 as the foundation, the Board now turns to the specific issues between the parties. The method of fillinq a position established under article 3.15.1 The first issue is whether in filling the positions created pursuant to article 3.15.1, the employer is entitled to resort to the surplus employee list under article 24. It is to be noted that article 3.15.1 states "shall post". Generally a posting is understood to involve a competition process. Filling of a vacancy through the surplus list does not involve any "posting" or competition. Surplus employees are redeployed through an "assignment". See, article 24.6. Therefore it is difficult to conclude that an assignment of a surplus employee meets the requirement "to post". This conclusion is also consistent with the purpose of article 3.15.1 discussed above. If a position created under article 3.15.1 is filled through the surplus list, that does not benefit or increase the rights of unclassified staff. For all those reasons, the Board is of the view that resorting to the surplus list is not an acceptable means of complying with article 3.15.1. 14 The next issue is whether the employer is restricted to a competition as the only means of filling a position created pursuant to article 3.15.1 or whether it could resort to any of the methods included in article 4. While the title of article 4 refers to "Posting and Filling" of vacancies, the subsections separately deal with "postings" on the one hand and other methods of filling a vacancy on the other. Article 4.6.1 and 4.6.2 deal specifically with filling of vacancies or new positions through assignment, as opposed to a posting. The article draws a distinction between "Postings" and other ways of filling a position, namely by various types of assignment. None of the methods of filling a vacancy by assignment recognized in article 4 involve a posting of a vacancy. Therefore, the better interpretation is that when the parties, rather than stating "fill in accordance.with article 4", stipulated "Shall Dost a vacancy in accordance with article 4", they envisaged a job posting and a competition for the positions established under the article. Again, this interpretation is buttressed by the purpose of article 3.15.1 discussed above. As with assignment of surplus employees, the filling of vacancy established under article 3.15.1 through any of the other types of assignments, eg: employees returning from long term disability or workers compensation, does not in any way work to the benefit of unclassified employees. On the contrary, as discussed by Vice-Chair Gorsky in Re Norland 15 ($DDra) they stand to be disadvantaged by being bumped by one of these assigned employees. The parties could not have intended such a result, It follows from the above that article 3.15.1 requires a posting and a competition as the means of filling positions established thereunder. Filling of those positions through any of the other types of assignments is not an option available under article 3.15.1. The Board recognizes that a different interpretation would have been more helpful to the employer in view of the government's policy of down-sizing the Ontario Public Service. Nevertheless just as the Board held in Re union Grievance (~), that such an administrative policy cannot alter or supersede the employer's obligations under a memorandum of settlement it had entered into, an administrative directive regardless of how reasonable and bona fide its motivation may be, cannot have that effect on the obligations of the employer under the collective agreement. The nature of the competition required under article 3.15.1 Finally, having determined that the employer was bound to post the four positions established, the issue still remains as to how and when those postings are to be held. Again it is appropriate to seek guidance from the purpose of article 3.15.1. In the Board's view, the ultimate beneficiary of article 3.15.1 is the union. The union benefits by the increased rights of unclassified employees-as 16 a class. The increased right, ie. to compete for the posted positions and upgrade their employment status, accrues to the class of unclassified employees covered by article 3.15.1 ie., non- seasonal unclassified employees. It is not reasonable to interpret article 3.15.1 as limiting that increased right to unclassified employees of a particular workplace. The intention is to confer a benefit' to the union, by having unclassified positions in the bargaining unit converted into classified positions, which carry greater rights and benefits under the collective agreement. Therefore, the Board finds that while the employer is required to limit the competition to non-seasonal unclassified employees, there is no obligation to limit it to unclassified employees at the Whitby Jail. In determining the scope of the competition, the employer still retains its usual discretion with regard to the area of search. When the postings are to be made pursuant to article 3.15.1 It was noted by the employer counsel that since article 3.15.1 does not explicitly stipulate when the postings are to made, the employer should be able to hold the competitions in abeyance for an indefinite period, having regard to the freeze imposed on the Ministry. As decided by Vice Chair Kaufman in Re Union Grievance (~) and as discussed above in this decision, the "freeze" cannot have any impact on the obligations of the parties. No specific time limits are specified as to when the employer must 17 post a vacancy under article 4 either. Nevertheless, the parties must have intended that a vacancy, whether arising under article 4 or article 3.15.1, will be posted and filled within a reasonable period after the condition~ of article 3.15.1 are met. That period is the time reasonably required for the employer to carry out the various administrative and clerical functions necessary to put a posting into place, to conduct interviews and to appoint the successful candidates in th~ particular circumstances. In summary (a) The Board is not functus officio and is entitled to deal with these issues in dispute. (b) Article 3.15.1 envisages the filling of positions created thereunder through postings and competitions in accordance with article 4. (c) These competitions must be restricted to non- seasonal unclassified employees but need not be limited to such employees at the Whitby Jail. (d) Despite the freeze on filling of vacancies generally imposed by administrative directive, the employer is required to fully comply with article 3.15.1 within a reasonable period after the conditions in that article are met. 18 In view of the fact that there were legitimate issues between the parties in this case as to the nature of their obligations, the employer ought not to be penalized for the delay to date in complying with article 3.15.1. The employer is diracted to comply with article 3.15.1 within a reasonable time from the date of receipt of this decision. The Board remains seized in the event the parties have further disagreements relating to implementation of this Board's decision. Dated this l2th day of November, 1996 at Hamilton, Ontario. N. Dissanayake ~ ,~~person ~ T. Browes-Dug Member D. Montrose Member