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HomeMy WebLinkAbout1992-2476.Barker et al.93-07-12 I ) 1'1tf1 '(f~<;~;;;' <; ONTAhn" EMPLOYES DE LA COURONNE .' ',>' .~-- CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE , SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSO 1Z8 TELEPHONE /TtLtPHONE (416)326-1388 180, RUE DUNDAS OUIfST BUREAU 2100, TORONTO (ONTARIO) MSO lZ8 FACSIMILE /TELl~COPIE (416) 326-1396 2476/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Barker et al) Gri,evor - and - The Crown in Right of ontario (Ministry of The Attorney Gener&l) Employer - BEFORE: W Kaplan Vice-Chairperson J. Laniel Member M. O'Toble Member -,. FOR THE N. Coleman UNION Counsel Gowling, Strathy & Henderson Barristers & solicitors FOR THE J. Zarudny EMPLOYER Law Officer Ministry of ~he Attorney General HEARING June 2, 1993 ~---_._-_.- -- ~_.~-~--- r_____.__~_.._~______~_~___.~_~_~__ ~____ _.'_ ) -) I 2 r, - Introduction This case, involving some 29 grievances filed by Court Cons~ables employed by the Ministry of the Attorney General, proceeded to a hearing before the Board Two of the grievances are dated June 28, 1992, one of the grievances is dated July 2, 1992, and the remainder ,are dated June 29, 1992 While there are some slight variations in the wording of the grievances, and in the remedy requested, by and large the gnevors allege that they are not being properly paid and request that the employer properly pay them One of the gnevances states that the employer expects the grievor to accept a lower rate of pay for performing the same Job, and \ seeks the continuatIon of longstanding wage and overtirlle rates Before the ments of the matter in dispute could be addressed, the employer raised two preliminary objections, and counsel requested that the Board - hear the parties' submissions and argument with respect to those objections In brief, the employer argued that the grievances related to - classification, and that as all of the grievors were unclassified employees, they had no nght to file, classification gnevances The employer also took the position that the gnevances were premature, and that the Board should decline jurisdiction with respect to them because they were filed in advance of the matters being complained about actually taking effect Before presenting argument on these objections, counsel for both parties set out some of the background to the case, and it was agreed that these \. submissions were only for the purpose of determining the preliminary objections There IS very little disagreement between the parties about the factual background to this case - ._._~ -- --_.~- -~---..,.,--,-- ~ - ---~.- ~--~_.- ----,--- ,~-- ----~-------------...,____~_r__. ~___'_.______._____~__~ -) ~ 3 ) The grievors used to be known as Court Constables, and most of them are employed at 361 University Avenue, 145 Queen Street West and several other locations in Toronto The grievors are all unclassified employees working under limited-term contracts of employment. Typically, these contracts run from April 1 st of one year to March 31 st of the next. UntIl August 1992, the grievors were paid at the OAG 2 rate it is useful to set out Article 3 3 1 of the Collective Agreement. It provides The rate of the equivalent civil service classification I shall apply If there is no equivalent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations At one point, and for a period of approximately six years, the parties were - agreed that the OAG 2 rate was the "equivalent cIvil service classification" for computing the gnevors' pay -- In February 1992, the grievors entered intoriew contracts of employment, again providing for payment at the OAG 2 rate As was customary, these contracts were scheduled to begin on Apnll st and continue until the end of tne Ministry's fiscal year How~ver, in early March 1992, after these contracts were signed, the employer posted a notice indicating that effective August 1, 1992, the Court Constables' would no longer be paId at (, the OAG 2 rate, but would, henceforth, be paid at the Usher and Messenger classification rate The stated reason for this change was that the passage of Bill 187 and its implementation on January 1, 1990 had changed the grievors' duties and responsibilities The principal change made by thIS ~--- -~- ~ -----.....---;-~ ._~-~-- --~~ .~--._-- ---._-~._----,.-----~--_._--'--~~-'._.------,~----~----~------- -- - ,;:) 4 --~ legislatIon was that the grievors, and some 500 other Court Constables located throughout the Province, were no longer responsible for court security After reviewing the grievors' duties and responsibilities, the employer determined that the class allocation that most correctly' reflected their duties and responsibilities, for the determinatIon of their proper compensation, was that of Usher and Messenger One important effect of this change was to reduce the hourly wage paid to the gnevors by approximately one dollar New contracts were subsequently signed by all of I the grievors, and these new contracts clearly indIcate the change in the comparator classification and attendant reduction in wages Another change was subsequently introduced With respect to overtime Prior to July 1, 1992, it was the employer's practice to pay the grievors overtime on any day In which they worked more than 7 1/4 hours A change to that practice w~s announced Instead of paying the grievors overtime - every day in which they worked more than 7 1/4 hours, effective July 1, 1992 the employer advised the grievors that it would only pay overtime if they worked "in excess of thirty-six and \ one-quarter (36 1/4) or forty (40) hours per week where employees do not have regularly scheduled work days. " In brief, the employer took the position that because the grievors did not have regularly scheduled work days, their overtime entitlement was governed by Article 3 4(d) of the Collective Agreement, while the gnevors took the positl9n that, as pas( practice indicated, their overtime entitlement was governed by Article 3 4(a) of the Collective Agreement. Article 3 4(a) provides that overtime will be paid for work "in excess of seven and one-quarter (7 1/4) or eight (8) hours per day, as applicable, I - -- - - -- -- --.. ._---~-----~---- ~ - --- --- --.-- --~ I ~--~- ----- ------~---~~~. ~------~-----_.~._---- "j 5 ~) where employees work a regular thirty-six and one-quarter (36 1/4) or forty (40) hour work week, as applicable " The grievances now before the Boa~d were filed after the announcement respecting the change in overtime policy was announced, which followed soon after the announcement of the change in the classification used to determine wage rates Employer Argument As already noted, employer counsel raised two preliminary objections first, that the grievances were inarbitrable in that they purported to ) challenge classification, and as unclassified employees the grievors were not entitled to do so, and second, that the grievances were premature In that they were filed pnor to both the new overtime poHcy and the new comparator class standard coming into effect. Counsel argued that there - must be some violation of the Collective Agreement before the Board can take jurisdiction, and as there was no violation in this case, the gnevances should be dismissed Turning to his second preliminary objection first, employer counsel referred to a number of authonties including Glenny 586/80 (Swinton), Hawley 2592/87 (Dissanayake), Rethe Queen in right of Ontario and Ontario ( Public Service Employees Union, 33 0 L.R (4th) 299 (Div Ct.), and Re Beachvilime Ltd. and Energy & Chemical Workers Union. Local 3264, 7 L.A C (4th) 409 (Hinnegan) Thegederal principle established in all of these cases is that an arbitration board should not take jurisdiction over a grievance until the alleged violation of the Collective Agreement has actually occurred Likewise, counsel argued in the instant case, the Board should I } ---~ ---.---- --..-- ---~ -----. ---. _._--~ --~----_._--. --~-----...-._-- ----- ~ ---~._---_. -----~~------ :>.- ) \ -) \ 6 decline(to hear the grievances before it because they were all filed (with one limited exception) in advance of the announced changes coming into effect. Counsel also argued that the grievors in this case were attempting to challenge their classification, and that it was settled law that they did not have the right to do so Accordmgly, counsel urged, on these two grounds, that the grievances b~ dismissed Union Argument Union counsel began his submissions by briefly reviewing the facts in dispute He noted that in March 1992 the grievors were advised that on a specified date their cont~acts would be amended and that they would be paid a lower wage rate This change occurred exactly as announced, and Dew contracts were negotiated with the grlevors In May 1992 The new contracts provided for the lower wage rate to come Into effect on August 1, 1992 Subsequently, the employer announced a unilateral change in the - calculation of overtime pay This policy was slated to come Into effect on July 1, 1992 Both changes were implemented-.-as announced Counsel argued, with respect to the employer's contention that the grievances were premature, that the authorities relied on by the employer were distinguishable from the mstant case because in those cases, unlike this one, there was uncertainty, about whether an alleged violation of the Collective Agreement would ever occur In the Beachvilime case, for Instance, counsel pointed out, the Board properly declined jurisdiction because a grievance alleging a violation of the layoff provision was filed when there was some question as to whether anyone would actually be laid off This was, in counsel's argument, a different situation than the instant one because there was absolutely no uncertainty that the changes announced -~ - -~..- -_. ~- -- ---- ~'---- -- ~ -~. -.- ~- -- - - ~ -~- --- ---~~---~-- -- - ---~..........._-_._._--------~---- ,) "'~) r;, '. 7 t:- , "- by the employer would be implemented on the scheduled dates There was, accordingly, nothing premature about the grievances In this case Counsel argued that all of the supporting facts, such as the renegotiation of existing contracts, supported the union's contention that ther~, was a difference between the parties when the grievances were filed, and that 6 difference arose when the employer announced the forthcoming unilateral implementation of wage and overtime calculation changes Counsel also referred to the Canadian Union of Public Employees, Metropolitan Toronto Civic Employees' Union, Local 43 v. Metropolitan Toronto (Municipality) 1990, 74 0 R. (2d) (CA) decision, also known as the "lights and sirens" case Counsel noted that the scope of the Divisional Court's decision Re the Queen in right of Ontario and Ontario Public Service / i 1 Employees Union, relied on by the employer, was circumscribed by the Court of Appeal (at 249-250), and that the court went on to find that employees - could, having been issued a management directive, grieve (prospective discipline for the violation of that directIve LIkewise, counsel argued in the instant case, employees could grieve the announced wage and overtime changes , With respect to the employer's assertion that the grievances were inarbitrable because they pertained to classification, counsel argued that this assertion misstated the character of the grievances, which counsel argued was about compensation, not classification. Counsel noted that the .t< Collective Agreement specifically provides that unclassified employees will be paid the rate of the equivalent civil service classification Counsel submitted that it was p~rfectly proper for unclassifIed employees to fIle grievances alleging that they were not being paid the proper wage rate, and ------------------- I ---~----:------~-- -- -_. - ~ -~~------ --- ---~-~--~-- ---'--~---~~---- ~ ~--- ''1 ) 8 that the matter of compensation was clearly different than that of classification, which counsel agreed was beyond the scope of the Board in the case of unclassified employees Counsel argued that the Board had ! jurisdiction to determine a grievance alleging that the Qrievors were not receiving the wage rate of the equivalent civil service classification, and urged that this objection also be dismissed One other matter should be noted It was the union's contention in thiS case that the grievors were being kept at the lowest level of the comparator classification Whatever the appropriate comparator classification was ultimately determined by the Board to be, the union took the position that the Board should, if i~ took jurisdiction over thiS case, also direct that the grievors be assigned to the proper gnd of the wage rate attached to that classification reflecting their seniority in the position - In closing, counsel urged the Board to consider the Industnal relations implications of declining to hear these grievances Counsel noted that the changes were made, and that the employer has known from the outset that theSe grievors and their union take issue with them To decline Junsdlctlon and to require the gnevors to resubmit their gnevances would not, in counsel's view, serve the Industrial relations Interests .at stake In thiS case Counsel argued that ther~ was no prejudice to the employer to proceed with these grievances, and counsel noted that the prematurity obJection of the employer was only communicated to the union two days before the hearing_Qf this case Had the employer communicated this objection in a timely manner the grievors could have refiled their grievances Counsel suggested that it would hardly be fair, in these circumstances, to sustain the employer's objection -- - ,.--- - .-..... - - --,- - .~- -~ -- ~_. -- --~- .------ - - ----'..,.. ._-- -,.---- -~_._- -.----- ---~-----_.- I~ .~) ~t:"~j 9 ; Employer Reply In reply, employer counsel argued that the grievors did not have to sign the new contracts providing for changed terms if they did not wish. to do so, and suggested that as they had freely and willingly signed these new contracts it was hardly appropriate for them to subsequently challenge their terms Counsel also reiterated his earlier argument that this matter aside, the time to file the grievances was after the changes came into effect, and he suggested that there was no way of knowing whether or not these changes / would ever come into effect as other changes might be introduced Counsel also suggested that the "lights and sirens" case did not apply In thIs fact situation because there was no possibility of discipline arismg out of the implementation of the employer's directive There was, moreover, in counsel's view, no disadvantage to the grievers In waiting until the actual moment that an alleged breach could be said to have occurred before filing grievances with respect to it - Counsel also made some submissions about th_~ industrial relatIons aspects of thiS case In counsel's View, the situation before the Board was potentially of enormous significance If employees could fire a grievance whenever they feared the consequences of a potential management action, the grievance procedure would soon, in counsel's submission, be overrun and chaos would result. Counsel ag~eed that he did not notify the union of his jurisdictional obJections until two days prior to the hearing of this case, but argued that thIS was immaterial because issues of Jurisdiction were so fundamental that they could be raIsed at any time, even at the end of a hearing after all the evidence has been heard and final arguments made In Q response toa question from the Board, counsel argued that prejudice to the other side was irrelevant where jurisdiction was concerned, and whether - -------- ~~.- --- ".--- --~---_. ---,.-....;~-- --- ---~------ ':- ._,,-- ----....,---~ -~- ---~-~--"~--------,-....,...---_._-----'"'-,----,.-..._.~----- -- - ----- .......--'l. ') , I 10 the result of ignorance, bad luck or bad advice; the grievors must now live with the consequences of their decision to file premature and inarbltrable grievances Decision Having carefully considered the submissions and arguments of the parties, we have come to the conclusion that the employer's two preliminary objections cannot be maintained, they are, accordingly, dismissed The grievances in this case are not premature because they were filed after the employer announced the two changes; and it is these changes that are the matter in dispute This is not a case where grievances are filed in advance of an anticipated change that mayor may not materialize If that were so, we would have upheld the employer's objections and declined jurisdiction The situation in this case IS quite different, because the - employer announced two changes, and then took a number of steps to implement them For example, after advising the grievors that the decIsion had been made to change the comparator classification, new contracts were drafted and entered uito This took place in advance of the actual Implementation of the change, but the fact that the change was commg was ( hardly hypothetical There is no reason, In these circumstances, to require the grievors to wait until thp change IS actually implemented In order to file grievances taking issue with it. The new contracts, as well as the published and distributed announcement about the forthcoming change in overtime compensation, gave rise to a difference between the parties, and that being so, the grievances In this case are not premature ~--- ~ -- .,--- --- --- -- - --- -- ~--~- --:- --~--_._--,---_.-..... --- -~~~'-----~--_._~----'- -_.-.."- (~ -, . ;-1~.... " 11 ) We also find that these grievances are clearly arbitrable, and that the employer's second objection must also be dismissed These grievors are not challenging their classification What they are doing is seeking the review of their compensation, which is determined by management selecting an "equivalent" classification This is the only sense In which the gnevances pertain to classification, and in no way can they be described as e \' classification grievances of the kind that frequently come before this Board The grievors are entitled, under Article 3 3 1 of the Collective Agreement, to be paid the wage rate assigned to an equivalent I classification, and that entitlement carries with it a corresponding entitlement to grieve the comparator classification assigned to them for the determination of wages where the allegation is made that it is not equivalent. The matter of equivalence is an issue for the Board to decide. Obviously, the grievors have every right to file grievances pertaining to the overtime provision of the Collective Agreement. I - I I Some additional observations are In order Whjle we have taken Jurisdiction In thiS case based on our factual determination that there was an issue in dispute between the parties given that the employer announced and then took steps to 'Implement changes to the wage rates and the calculation of overtime, the review of which is arbitrable under the Collective Agreement, it is hard so see, notwithstanding employer' counsel's submissions on this point, what industrial relations purpose is served by the two preliminary objections in this case The employer knew as of the date of the grievances that the grievors took issue with these changes, and that they would be contesting them in the grievance procedure and possibly before the Board The employer also knew that these gnevances were not about some hypothetical event that might or might not occur, but were filed ---- .-----,-- ~-,-- -- -~--_.~....... ---- -~~---~----~-- --- ---,-~----------~~~-------- ~-~-~~ -- - -_.~ .- ~\ -") . 12 in response to changes it announced it would be implementing, and which it in fact implemented as scheduled This is clearly not a case where employees have filed speculative grievances concerning conceivable violations of the Collective Agreement If that were so, we would have declined jurisdiction based on the cases submitted by employer counsel and arbitral principles considered more generally There clearly is no prejudice " whatsoever to the employer in the circumstances of this particular case It is not necessary at this time to decide whether the grievors are entitled to be paid at the different wage grids within the equivalent comparator classification That matter can be addressed along with the merits of this case. A final observation is in order While it is undoubtedly correct that \ jurisdictional matters can be raised at any time, where one party is aware - of obJections of this kind, surely there is some obligation to bnng those objections to the other side's attention where_failure to do so Will seriously prejudice the other party If, for example, we had upheld the employer's objection in this case, the resulting delay caused by requiring the grievors to now refile their grievances would, if their grievances proved ultimately successful, deny them their entitlement for an extended period dunng which the employer was well aware of the Issue In dispute That would be quite unfair -.-- -~ -- - -- --- ~---- ~-+. -~._- -- ,- - ----- ----...---- ~-- ---~ ---~--- -~-- -- - ---- ') \ "! L" 13 \ This case will reconvene on a date to be set by the Re'gistrar \ DATED at Toronto this 12th day of July, 1993 \ m1--Q7~ M O'Toole Member - \ -- \ I 1 I I I I -- -- -- ---- ~---- --. -----------------.- --------~._-- ~--~~---~--~ ---.-- - -. I