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HomeMy WebLinkAbout1991-1681.Union.94-11-01 ·; .', · "= ONTARIO EMPLOY~SDELA COUROIVNE ...;.-..-._~ .... ~"' ": '~i: .;'! ; CROWNEMPLQYEES - OEL'O/~TARJO '~ ~-; -~ ...... GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ?$0 DUNDAS ST,REET WEST, SUITE 2100, TOPONTO, Oh. tTARrO, tvfSG 1Z8 TELEPHOfVE,'TELEPHONE: (4 ~6] 326-~38~ 180, RUE DUNDAS OUEST, BUREAU 2r~, TORITO (O~TAR/O). MSG IZ8 FACSIM/LE/T~L~COP~E : (416) 326-~396 1681/91 IN THE MATTER OF AN ARBITRATION Un,er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) . Employer BEFORE M. Watters Vice-Chairperson P. Klym Member F. Collict Member FOR THE D. Wright GRIEVOR Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE J, Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HE~RING April 27, 1992 July 20, 1992 June 2, 1994 This proceeding arises from the grievance of the Union dated August 13, 1991, the material part of which reads: "STATEMENT OF GRIEVANCE The Ministry of ~orrectional Services is violating the collective agreement in failing to post and fill numerous positions within the classified service that are presently within the unclassified service. SETTLEMENT DESIRED That the employer post and fill these vacancies immediately ................................... " The grievance focuses on staffing of the Guelph Correctional Centre. This facility houses approximately six hundred (600) medium and high security male inmates. It also serves as an assessment and treatment centre. The facility employs, inter alia, Correctional Officers, Registered Nurses, Recreational Officers, and Office and Clerical support staff. As is outlined in greater detail below, the Employer regularly utilizes a · significant number of unclassified employees in the aforementioned positions in order to maintain appropriate staffing levels during the absence of classified staff. The Employer also resorts to both classified and unclassified overtime to satisfy this need. Simply put, the issue before this Board is whether the work performed by the unclassified employees amounts to vacancies which must be posted under article 4.1 of the collective agreement. The Union asserts that this question should be answered in the affirmative given the fact that such work is virtually identical to that performed by classified staff 1 and is requi~ed so as to meet an on-going and continuing staffing need. In contrast, the Employer maintains that it possesses the right to decide whether classified or unclassified employees will perf.orm the work. Its representative argued that the nature and duration of the work is irrelevant to the resolution of the issue. Instead, we were urged to find that the work assigned to unclassified employees cannot trigger or create a. vacancy in the classified service for purposes of article 4.1. Both parties here agree that the unclassified employees were properly appointed pursuant to the provisions of the Public Service act. The sole witness, called on behalf of the Union, was Mr. Barry Scanlon. Mr. Scanlon has been employed with the Ministry of Correctional Services since 1984. He has been a classified Correctional Officer since 1985 and has worked at the Guelph Correctional Centre since March, 1988. As of the date of grievance, Mr. Scanlon.was the President of OPSEU, Local 233[_ As of the date of hearing, he was a member of the Union's central ERC Team. Mr. Doug Dagleish was the 'sole~witness presented on behalf Of the Employer~ Mr. Dagleish has been the Deputy Superintendent of the Guelph Correctional Centre since 1990. He had been employed by this Ministry for some thirteen (13) years as of the date of hearing. The complement of classified Correctional Officers. at the Guelph Correctional Centre is two hundred and thirty-five (235). The actual complement is, in fact, two hundred and thirty-three (233) as two (2) of the positions are permanently used for a six (6) month deve'lopmental secondment. One hundred and seventy six {176) of the Correctional Officers work a basic twelve (12) hour schedule. These Officers are divided into four (4) flights, each comprised of forty-four (44) persons. The remaining fifty-seven (57) classified Correctional Officers work an eight '(8) hour schedule. As of the date of the grievance, thirty-seven (37) unclassified Correctional Officers were employed at the Guelph Correctional Centre. Of this number, nine (9) were considered as "scheduled" Officers in the sense that they were actually incorporated into the schedule to replace a classified employee who was away on an extended absence, We were told that such an absence might encompass military or maternity leave or an.absence due to a compensable injury. The remaining twenty-eight (28) unclassified Officers were referred to as being "unscheduled". They would generally be given aDproximately one (1) days notice that they were required to fill in for an absence on the schedule. This latter group of unclassified employees'were also subject to being called-in on the actual day of absence. 3 Mr. Scanlon testified that the "scheduled" unclassified Correctional Officers worked forty (40) hours per .week~ This assertion was not Seriously disputed by the Employer. Mr.. Scanlon further stated that most of the "unscheduled" Officers worked at least forty (40) hours per week for the bulk of the fiscal year. He also noted that this latter group worked overtime hours on a regular basis. It was Mr. Scanlon's evidence that the unclassified Officers were required to fill an on-going operational shortage within the 'facility. More specifically, h~ stated that they would be utilized to replace classified employees absent, or unavailable, for any bf 'the fo21owinq reasons: (i) illness or injury; (ii) statutory holidays or lieu time; (iii)vacations; (iv) staff-training (v)' maternity or military leave; (vi) classified Officers acting as ICIT Coordinators. Mr. Scanlon testified that the unclassified Cor'rectional Officers, subject to two (2) exceptions, performed virtually the same duties as their classified colleagues. He indicated, in this regard, that unclassified personnel did not work in the con'roi area nor did they serv~ as outside escorts. 4 ~r. Scanlon, ultimately, expressed the opinion that the classified complement is insufficient to meet the on-going staffing .~equirements of the institution. He suggested that the short~fall is covered through the use of unclassified Officers, as described above, and through the assignment of classified and unclassified overtime. It was his view that forty-nine and one- half (49.5) additional full-time classified Correctional Officers are needed to satisfy the ongoing needs of the facility. This opinion was supDorted by a series of premises and calculations which were filed with us as exhibit 12. In closing argument', the Union revised its estimate of ~he extent of the shortfall to' thirty-seven (37) Officers. This estimate was premised in large part on a review of unclassified and overtime hours utilized over the period material to this diapute. Mr. Dagleish disputed several of the premises and assumptions contained within e~hibit 12. Generally, he disagreed with the Union's suggestion that many of the absences were predictable and could, as a consequence, be planned for. He referenced short-term illness and vacations taken on short notice as examples of situations that could not necessarily be anticipated in advance. Further, Mr. Dag]eish doubted the validity of extrapolating figures applicable to a given flight to the institution as a whole, as was done by Mr.. Scanlon in the aforementioned exhibit. 5 Mr. Dagleish testified that, from an operational perspective, there are many advantages in utilizing unclassified Correctional Officers. He noted that such'Officers can be scheduled on short notice to cover absences of between two (2) and twelve (12) hours without attracting overtime. He also indicated that no specific period of notice is required for a call-in of an unclassified staff. The data prpvided to the Board ~n exhibit 13 discloses a consistent increase in unclassified hours worked over the period 1988 to 1992. Mr. Dagleish attributed such increase to three (3) factors. Firstly, additional living units were oPened.in the 1989 to 1991 period. Secondly, as a result of the Askov decision, eleven (11) additional unclassified Officers were hired. Lastly, he noted that a concerted effort began in 1990 to reduee the amount of overtime. This effort led directly to an increase in the number of unclassified hours. It was the thrust of Mr. Dagteish's evidence that the schedule at the Guelph Correctional Centre delivers sufficient staff to meet the number of posts required. The Health Care Unit at the Cuelph Correctional centre employs fourteen (14) classified Registered Nurses who work as Nurse 2's or as Nurse 3's. Nurses at the former level work a combination of eight (8) and twelve (12) hour shifts. Nurses at the latter level work eight (8)hour day shifts. There are nurses on site twenty-~our (24) hours per day, seven (7) days per week. As o~ the date of grievance, four (4) unclassified nurses 6 were employed in the unit. Three (3) of the four (4) worked forty (40) hours each week. The fourth nurse worked twenty-four (24)'hours per week. -The unclassified nurses filled in for vacations, statutory holidays, sickness, injuries, and staff training. Additionall.y, they filled in for Nurse 2's who themselves were acting as Nurse 3's. Apparently, at the time material to this dispute, Nurse 3's were filling in for the Health Care Coordinator. In this regard, Mr. Dagleish advised that there is considerable staff turnover in the Health Care Unit as a result, of resignations, promotions,.and transfers. He seemed .to agree that ~the unclassified nurses are used, in part, to combat this problem. Mr. Scanlon indicated that unclassified nurses'also work overtime hours. From the evidence presented, it appears that classified a~d unclassified nurses perform 'the same duties. The unclassified staff are generally given about one (1) weeks notice of the shift they will work. Mr. Scanlon testified that there is a need for a minimum of four (4) additional classified Nurse 2's in order to meet the on- going needs of ~he Health Care Unit. This estimate was adjusted' .to three (3) in closing argument. Mr. Scanlon asserted that the shortfall is currently met through unclassified nurses working regular and overtime hours and by way of overtime onrthe part of the classified nurses. The Recreational Services Area is staffed by a Manager, eight (8) classified Recreation Officer 2's and eight (8) unclassified!Recreation officers. Recreation Officers ~upervise inmate recreational activity; maintain equipment; and provide instruction ~ith respect to the safe use of equipment. Coverage is provided seven (7) days per week. The B~ard was told that there is at least one (1) Recreation Officer on-site each day between 8:00 a.m. and 9:00 p.m. Most of the classified Officers work on an eight (8) hour schedule, although some d© work twelve (12)· hour shifts. Mr. Scanlon testified that there is "always" one (1) unclassified !Recreation Officer working in conjunction with a classified c~lleague. He sated that unclassified Officers are required to ~eet on-going shortages occasioned through vacations, lieu time, sickness or injury, and staff training. It was his evidence that the unclassified Recreation Officers regularly work close to forty (40) hours each week. He added that they work overtime, on ~ccasion. Mr. Scanlon stated that the unclassified officers engage, in the same range'of duties as the classified staff. It was his .ultimate assessment that the eight (8) ! . classified Re reation Officers do not meet the on-going operational n!eds' . of the institution He maintained that one (1) additional cl Lssified Officer is required, to correct the short~all, ~ Between thirty (30) and forty (40) classified employees provide'office and clerical support. These employees, in the administrative area of the facility, work eight (8) hour day shifts, Monday through Friday.. At the date of t~e grievance three (3) unclassified employees, hired initially through Go Temp, also provided office and clerical services.~ The Board was advised that these employees by and large are used to cover for extended absences of ~classified personnel. They are not gener~ll~ utilized for shor%-term absences. The unclassified staff engage in the same duties, and work the same hours, as their classified colleagues. It was Mr. Scanlon's opinion that the. existing complement of clerical staff is unable to meet the on-going operational needs of the institution. He suggested that at least three (3) more classified positions are needed to meet such needs. This figure ,was amended to two (2) in closing argument. The relevant provisions of the collec, tive agreement read: CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS 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. at '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 mhd Filling of Vacancies or New Positions). 9 3.15,2 For the purpose of this section, "full-time" shall mean a minimum of one thousand seven hundred.and thirty-two and three quarter (1,732 3/4) straight-time hours or one thousand nine hundred and twelve (1,912) straight-time hours in each ~ear, as applicable, i~cluding authorized leaves of absence. However, all hours worked by an unclassified employee while he is replacing a classified employee who is on an authorized leave of absence ~hall not be included in computing the annual hours worked by the unclassified employee. ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or 'a new classified position is created in the bargaining unit,, it shall be advertised for 'at least ten (10) working days prior to the established closing date when advertised Within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service- wide. All'applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. ARTICLE 6 - TEMPORARY ASSIGNMENTS 6.6.1 Where an employee is assigned temporarily to a position, Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply except where: (i) the term Of a temporary assignment is greater than six (6) months' duration, and (ii) the specific da'tes of the term are established at least two (2) months in advance of the , commencement of the temporary assignment. The Union argued the evidence'demonstrates that unclassified staff in each of the four (4) areas work on a regUlar and on- going basis in order to meet the operational needs of the Guelph Correctional. Centre, as determined by the Employer. Counsel 10 stressed that the classified and unclassified personnel engage in basically the same duties and work virtually the same number of hours. In almost all instances, the hours worked approximate what may be described 8§ full-time hours. It was suggested that, in the circumstances of this case, the Employer is utilizing unclassified employees'and overtime hours to. compensate for a shortage in the classified complement. More specifically, counsel maintained that such complement does not accomodmte the fact that replacement employees are always needed to cover for classified staff who are absent for the reasons outlined in the evidence. It was the position of the Union that a vacancy .exists for purposes of-article 4.1 where, as here, the Employer requires work t~ be performed on a regular and on-going basis in order to satisfy its operational requirements. Counsel submitted that the structure of the collective agreement contemplates that classified employees will be used to fill jobs of an on-going and continuing nature, especially in situations where such jobs may be aptly characterized as full-time. Reference in this regard was made to article 3.15.1 and 6.6.1, as cited above. Briefly, stated, this Board was urged to conclude that the'Employer has been avoiding its obligations under article 4.1 of,the collective agreement through the improper utilization o{ unclassified staff. We were asked to remedy the situation by way of an order d~recting the Employer to initiate postings in respect of thirty- 11 · seven (37) Correctional Officer vacancies; three (3) Nurse 2 vacancies; one (1) Recreation Officer vacancy; and two (2) office and clerical vacancies. .L _ The Union re]ie~ on the following awards in support of its position: Beresford, Milley, 1429/86, 1972/87 (Samuels); OPSEU (Union), 1775/89 (Kirkwood); OPSEU (Union), 582/90 (Kennedy); OPSEU (Union), 0534/88 (Wright); OPSEU (Union), 1760/89 (Roberts); Fox 663/90 (Wright); OPSEU (U~i0n), 311/88 (Watters)~ - The Employer, in response, argued that the union had failed to establish a violation of article 4.1 of the collective agreement. More specifically, we were told that the Union had not demonstrated a single instance where the Employer neglected to post in respect of a c~lassified vacancy arising as a. result of the incumbent's promotion, transfer, reassignment, resignation or retirement. An identical submission was advanced with.respect to the posting of new Classified positions created within the bargaining unit. In substance, it was the Employer's position that the conditions set out in article 4.1 had not been triggered so as to require a posting. The Employer's representative asserted thst neither the duties performed by unclmssified employees nor the hours they work can serve as the ~oundation for the creation of ~ classified vacancy. Indeed, he suggested that the evidence relating to 12 these points is largely irrelevant to the issue before the Board. It was the Employer's submission that the creation of classified vacancies requires a deliberate decision on the part o~ management as to which category o~ ~employee will perform the work. From the Employer's perspective, such a vacancy should not be implied from the mere existence of work to be performed. In a similar vein, it was argued'that the Union cannot use article 4.1 to create a classified vacancy where none existed previousl'y. As' stated, it was the Employer"s position that the work performed, nature of position, or hours worked do not serve to distinguish classified from unclassified employees. The representative of the Employer submitted that the aforementioned features cannot transform unclassified staff in th% public service into classified staff in the civil service. Rather, it was.asserted that the real difference rests' in the nature of the respective appointments under the Public Service Act. The Employer maintained that the .validity o[ this position is evidenced by the amendment to section 6(1) of Regulation 881 under the Public Service Act. That amendment, which created the fourth group of unclassified employees, expressly provides for the appointment of'unclassified staff "whether or not the duties performed by them are, or are similar to, duties performed by civil servants,..." The Employer's representative suggested that the grievance, · in substance, is about the mix of classified and unclassified employees working at the Guelph Correctional Centre. He further suggested that the Union simply wanted to effect an increase in the clazsified complement. It was the Employer's ultimate submission that this Board could not grant the remedy sought as the question of mix and complement are exclusive management rights under the provisions of the Crown Employees Collective Bargaining Act. It was argued that,' in the absenc~ of bad faith, there is no jurisdiction ~o review the Employer's decision, taken for valid buainess reasons, to use unclassified staff to Perform the work here in issue. The Employer relied on the following awards in support, of its position: Haladav, 94/78 (Swan); CriDps, 660/86 (Verity); Simpson, 694/85' (Kennedy); OPSEU (Union~, '498/85 (Verity); Dohert.y, 43/76 (Beatty)'; Porter, 428/90 et al. (Brandt); Sin~h, Mohamed, 721, 730/89 (Kirkwood); Sin__~h, 333/91 (Dissanayake); Lavoie, 441/.91 (Keller); ~rrY, 23'7/91 (Low); and OPSEU (Union), 1140/91 (Stewart). As noted above, Regulation 881/89 was amended, effective March 13, 1989, the effect of which was to add a fourth group of unclassified employees who may be appointed pursuant to section 8 of the ~ublic Service Act. This additional group is ~efined therein as employees: 14 (i) who are appointed pursuant.to s.8 of the Act, whethe'r or not the duties perzormea by them are, or are similar to, duties performed by c/vi] servants, and (ii) who are not employees that belong to group 1, 2, or 3. It is apparent from a reading of the jurisprudence_following the amendment, including the awards in Porter; Parry; and Sin__~_~h, that unclassified employees may now be appointed to positions having hours and duties similar to classified positions. In Porter, the grievor worked as a Clerk Typist between October 1, 1986 and August 31, 1990 under a series of thirteen (13) successive contracts. She grieved her status as an unclassified emplo3e~ when her last contract was not renewed. Her position was described, at page 8 of the award, as "The position in question was in existence at the time that the grievor was appointed to'it and, throughout her tenure in the position, she continued~to serve the onGoinq needs of. apprentices at Durham ColleGe. To all intents and PurPoses the terms and conditions o{ her employment were such that her position could not be distinguished from a position in the classified service. Her hours of work and assiqnments received were similar to those of a classified civil servant. Thus, the foundation appears to have been established for the application of Beresford." (emphasis ours) The Board, ultimately, found that the grievor was pr%perly ~appointed to the unclassified service notwithstanding the nature of her position. This decision was premised on the conclusion that the Beresford approach is no longer applicable'as a result of the above-mentioned mmendment to section 6 of Regulation 88 /89. 15 ~In Parry the grievor, Who was an unclassified employee, worked as an Assistant Registration Officer at the Ontario Securities Commission between April 24, 1989 and March 31, 1991 under a series of fixed term contracts. He grieved that he was dismissed without j~st cause when his last contract was not renewed. The Board, after reviewing the amendment to Regulation 881, commented as follows at page 5 of its award: "The provisions of section 6(1~ (d) defining Group 4 of the unclassified service is unambiguous in that it appears to catch all employees who.do not belong to Groups 1, 2, or 3, and includes employees whether or not their duties are similar to those performed by civil servants.(i.e., classified employees~ provided that the appointment was pursuant to section 8 of the Act which requires that the first appointment be for no more than a one year term. (emphasis ours) In the'final analysis,' the Board found that the grievor had been properly appointed to his position in the unclassified service and that he ceased to be a public servant upon the expiry of 'his final contract. An identical result was reached, on similar facts, in Singh. The Board provided the ~ollowing interpretation of section 6 (i) (d) of Regulation 881/89: " The effect of the addition of the new category.is dramatic, Whereas earlier groups (a) (b} and contemplated temporary, non-recurring or seasonal types of employment, now it is expressly stated that there can be an appointment to the unclassified service even .if the employee is performing the same work as classified employees. Since classified employees in the public ~ervice perform permanent work, it follows that an employee performing similar permanent work can also be appointed to the unclassified service. The employer can ~ppoint an employee to do the same or similar work as the 16 .employees in the classified service, regardless of whether or not the employee is doing temporary, non-recurring or seasonal~ work as contemplated by the first three groups in section 6(1), provided only that the appointment is made pursuant to and in compliance with, section 8 of the Public Service Act." (pages 15-16, emphasis ours) The Board recognizes that the last three (3) awards focus on the propriety of the appointment of unclassified employees under the Public Service Act and not on whether a classified vacancy exists Which ought to be filled pursuant to article 4.1 of the collective agreement. Nevertheless, we think Ghat the reasoning contained-therein militates against acceptance of the Union's position in this case. More specifically,' the referenced awards all suggest that an appointment of unclassified staff cannot be challenged simply because they perform permanent work in a manner similar to classified employees. In our judgment, the instant case is remarkabl~ similar to the circumstances presented in OPSEU (Union), 1140/91 (Stewart). There, the Union alleged that the Employer had violated article 4.1 by its failure to post two (2) nursing positions at the Metro East D~tention Centre. The Health Care Department of that faci]'ity employed'eight (8) classified and four (4) unclassified nurses. Its regular operation required three hundred and eighty- four (384) hours ~f nurses work per week. ~The evidence disclosed that, apart from absences due to illness, vacation etc., the eight (8) classified nurses were able to provide three hundred 17 and twent3 (320) of the hours of work on the schedule. The regular shortfall, and the absences that had to be filled because of vacation or illness, was met through employment of the four (4) unclassified nurses. The.~issue before the Board was whether the Employer was obligated to fill the permanent and on-going shortfall of hours with classified staff. The Union claimed, as here, that the use of unclassified personnel to perform the shortfall in hours constituted a violation of article 4.1. More particularly, it submitted that a valcancy for one (1) or more classified positions existed and that the Employer was obligated to post and fill such vacancies. It is very clear'that the issue presented in this case was also before the panel chaired by Vice- Chairperson Stewart. In that instance, the Union also advanced the argument that the appointment of unclassified employees to perform the work in question represented an improper use of the power of appointment. After a lengthy review of the jurisprudence which followed the amendment to the Regulation, the Board stated as follows: "In the case before us, the narrow issue~is whether the Employer is obligated to have the permanent ongoing work of registered nurses in its health care department performed by classified employees or whether it can have this work performed by unclassified employees. For the reasons set out above, it is our conclusion that there is nothing in the provisions of the Collective Agreement or the pr~visions of the Public Service Act that compels the Employer to establish a vacancy or vacancies to be filled by classified staff in this instance. The Employer is, of course, required to comply with the provisions of s. 8 with respec~ to the term o~ appointment of unclassified staff, however there was no 18 evidence that this did not take place. As welt, of · course, the Employer is obligated to comply with the provisions of Article 3,t5.1 of the Collective Agreement. H°wever, .this provision was not directly in _ _ issue in this.proceeding. For these reasons'it is our conclusion that this gri'evance must be dismissed." (pages 18-19~ This Board agrees fully wi-th the reasoning e~pressed above and finds that it is directly applicable to the circumstances existing at the Guelph Correctional Centre, as outlined earlier. We accept that vacancies, for purposes of article 4.1, are not created as a consequence of the Employer's elecCion to utilize unclassified staff to meet its permanent and on-going needs. Similarly, the fact that such employees work at, or close to, forty (40) hours per week is not a determinative factor. The above-stated Conclusion is sub3ect to three (3) caveats. Firstly, it assumes that the unclassified employees were properly appointed. Secondly, it also presupposes that article 3.15.1 has been complied with. Here, the Union did not rely on this article other than in aid of interpretation. Lastly, we wish tO emphasize that.for purposes of this dispute, -it is unnecessary to address the Employer's assertion that management may abolish classified positions and, thereafter, use unclassified employees to perform the same work previously engaged in by classified' personnel. There is no evidence of this ever having occurred in .: this case. 19 " On the evidence, the Board finds that the preconditions for the applicability of article 4.1 have not been established.. We have not been persuaded.that vacancies occurred in the classified service for bargaining unit positions or that new classified positions were created. In our judgment, the award in OPSEU (Union)~ 311/88 (Watters) is distinguishable. The decision to order a posting in that instance was premised on a finding that the unclassified Correctional Officers were not properly appointed under the Public Service Act. For ali off the above reasons~ the g.rievance is denied. Dated at ~~C ,Ontario this.lst day of November ,1994. M.V. Watters, Vice-Chairperson F. Col lict, Member 2O GSB 1681/91 UNION GRIEVANCE DISSENT OF UNION NOMINEE I have 'carefully studied and considered the detailed and thorough decision of the majority and find that I cannot concur with.them in the final result. I do not propose to re-argue~all aspects of the issue of Group 4 appointments to the unclassified service. That issue has been thoroughly canvassed and ruled upon in numerous GSB decisions. ' · My concern is-that I do not believe the Collective Agreement envisages or provides a situation where ongoing permanent work can be performed' by unclassified persons forever if the employer so ~ wishes. The effect of the decision of the majority could lead to the employer interpreting that it has the sole, unchallengable right to decide that any work' may be done by unclassified employees. Jobs or positions would only fall into the classified category if the employer felt like Putting them there, regardless of the ,nature of the work or its duration. I do not believe the creation of Group 4 gives this right to the emPloyer. I would point out that the Group 4 category' is on, ly part of a regulation under the Public Service Act and, if it is in conflict with ~ provision of the Collective Agreement, the Collective Agree- ment shall prevail. Surely, it is not a stretch to say that, even if there is no explicit conflict, the Group~4 regulation should not be allowed to undercut the intended provisions of the Collective' Agreement and 'normal arbitral jurisprudence in enterpreting a Collective Agreement. The danger in the decision of the majority is that, in focussing on the Group 4 issue, they are opening up a complete disregard to the intent and purpose of the Collective Agreement provisions such as Articles 4, 6 and 3.15 and even the surplus and redeployment provisions of Article 24. GSB 1681/91 UNION GRIEVANCE ..... 2 - My concernJ is increased by an assertion made by the employer that management may abolish classified positions and, thereafter, use unclassified employees to perform the same work previously engaged.in by classified employees. Certainly, I do not believe that the creation of a. Group 4 category gives this right to the employer. In my. opinion, exercising such a "right" would be a violation of the Collective Agreement. I note the majority referred to this assertion by the Employer but found it unnecessary to rule upon it because, of the other grounds used to arrive at their decision. In this ease, I would have allowed the grievance and determined which vacancies were to be posted. Peter Klym.