HomeMy WebLinkAbout1996-2449.Brousseau.99-11-17 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARW
GRIEVANCE COMMISSION DE
1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE (416) 326-1396
GSB # 2448/96, 2449/96 2557/96 2472/96
OPSEU # 97B093 97B091 97B139 97B1l3
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Uruon
(Brousseau et aD
GIievor
- and -
The Crown III RIght of Ontano
(Mirustn of Transportatlon)
Employer
BEFORE Ken Petn'shen Vice ChaIr
FOR THE Peggy Srmth
GRIEVOR Counsel, ElIot, Srmth
Bamsters & SolIcItors
FOR THE Jonathon Cocker
EMPLOYER Counsel, Legal SerYICeS Branch
Management Board Secretanat
HEARING September 30 1999
October 26, 1999
2
DECISION
ThIS matter concerns gnevances filed by employees classIfied as Highway
EqUIpment Operator 3 ("HE03") who were assIgned to perform the work of a Winter
ShIft SupervIsor covered by the Highway General ForemanIWoman 1 classIficatIOn
("HGFIW1") The Issue m dIspute IS the rate of pay the Employer IS reqUIred to pay the
gnevors for the work they performed as Winter ShIft SupervIsors dunng the 1996-97
wmter season and subsequent wmter seasons The gnevances whIch raise thIS Issue were
filed by J Brousseau - October 29 1996 GSB #2448/96 S Gauvm - October 29 1996
GSB # 2449/96 A. Villeneuve - October 21 1996 A. Loubert - October 21 1996 a
Group Gnevance (DIbb et al ) - November 27 1996 GSB # 2557/96 and T Stephenson
- December 4 1996 GSB # 2472/96 The partIes agreed that the GSB has JunsdIctIOn to
deal wIth these gnevances
The Umon wIthdrew the followmg gnevances C Bussmeau - June, 1994 GSB #
0729/94 L MacGIllIvray - June 17 1994 GSB # 0730/94 J Hayward - May 27 1994
GSB # 1231/94 J Lankmen - May 27 1994 GSB # 1231/94 B Findlay - June 14 1994
GSB # 0674/94 J Cam - June 14 1994 GSB # 0674/94 E BullIed et al - June 21 1994
GSB # 1186/94 1187/94 1188/94 1224/94 J Edwards - June 14 1994 GSB # 0728/94
C Adams - June 23 1994 GSB # 1184/94 and, N BacskaI - July 6 1994 GSB #
1189/94 In essence, these gnevances claimed a ment mcrease for HE03s who were
assIgned wmter ShIft supervIsIOn dutIes dunng the first year of the SocIal Contract. The
SocIal Contract Act precluded the payment of ment mcreases The Employer agreed that
It would not recover an overpayment made to the above gnevors dunng the 1993 - 94
3
wInter season. On the agreement of the partIes, I wIll remaIn seIzed of these 1994
gnevances to deal wIth any dIspute whIch may anse concernIng them
The gnevances were filed under the CollectIve Agreement executed on August
30 1996 whIch covered the penod from January 1 1994 to December 31 1998 Dunng
the WInter season, a number ofHE03s are assIgned certaIn supervIsory dutIes whIch fall
wIthIn the hIgher paid HGF/W1 classIficatIOn. The UnIon claims that the gnevors have
been assIgned to perform the Winter ShIft SupervIsor dutIes year after year for a number
of years Although the Employer could not agree to thIS fact, I wIll assume that the
UnIon's assertIOn In thIS regard IS true for purposes of dealIng wIth these gnevances
In 1990 the Employer expenenced dIfficulty In attractIng employees to perform
the WInter ShIft supervIsor dutIes In order to attract employees to perform the dutIes of
the hIgher classIficatIOn, the UnIon and the Employer entered Into a Memorandum of
Agreement ("the Agreement") In December 1990 pursuant to whIch the Employer
agreed to pay employees performIng the WInter ShIft supervIsIOn dutIes at the top of the
wage scale for the HGF/W1 classIficatIOn for the 1990-91 WInter season. At the end of
that WInter season, the employees reverted to theIr pre-wInter classIficatIOn and rate of
pay In September 1991 the MinIstry notIfied the UnIon that It would contInue the terms
of the Agreeement for the 1991-92 WInter season. At that tIme, It also advIsed the UnIon
that It would not contInue the terms of the Agreement beyond the 1991-92 WInter season.
In a memorandum dated September 27 1991 to RegIOnal DIrectors and DIstnct
4
EngIneers, the ADM explaIned that the folloWIng procedure would apply for the WInter
seasons subsequent to the 1991-92 WInter season
Other permanent patrol staff who are temporanly reclassIfied to HGF-1 as
Winter ShIft SupervIsors, should be compensated In accordance wIth the
CollectIve Agreement and wIth due consIderatIOn to progressIOn through
the salary range based on ment. ThIS means that If a permanent employee
has operated competently as a WInter ShIft supervIsor for a least one
season, he/she should be consIdered for a ment Increase In the folloWIng
season, 1 e paid at the second level In the pay scale for that classIficatIOn.
With contInued competent servIce, progressIOn to the top of the pay scale
for the classIficatIOn should be consIdered for the subsequent year
Dunng the three year SocIal Contract penod, employees assIgned to the Winter
ShIft SupervIsor posItIOn were paid at the same rate that they had receIved for the 1992-
93 WInter season. AccordIngly If an employee had been paid at the hIghest rate of the
HGF/W1 classIficatIOn for the 1992-93 WInter season, that employee would have been
paid at the same rate If assIgned to the Winter ShIft SupervIsor posItIOn for the 1992-93
1994-95 and the 1995-96 WInter seasons
In October 1995 pnor to the executIOn of the CollectIve Agreement, the Mimstry
advIsed the Umon that It would cease paYIng ment Increases to employees who act In
temporary assIgnments Dunng the 1996-97 WInter season, the first WInter season after
the SocIal Contract penod and the first one under the newly executed CollectIve
Agreement, HE03s who were assIgned to fill the Winter ShIft SupervIsor posItIOn were
paid at the lowest rate of the HGF/W1 classIficatIOn ($16 19 per hour) even though they
may have been paid at the hIghest rate ($16 98 per hour) dunng pnor WInter seasons
5
ThIS development resulted m the filIng of the SIX gnevances m 1996 whIch gave nse to
thIS dIspute
I was referred to the followmg CollectIve Agreement provIsIOns
8 1 1 Where an employee IS assIgned temporanly to perform the
dutIes of a posItIOn m a classIficatIOn WIth a hIgher salary
maXImum for a penod m excess of five (5) consecutIve
workmg days, he or she shall be paid actmg pay from the
day he or she commenced to perform the dutIes of the
hIgher classIficatIOn m accordance wIth the next hIgher rate
m the hIgher classIficatIOn, provIded that where such a
change results m an mcrease of less than three percent
(3%), he or she shall receIve the next hIgher salary rate
agam.
OPM16-Salary
OPM16 l(d) EffectIve Apnl 1 1996 the practIce of ment mcreases wIll
resume on the employee's normal anmversary date
subsequent to March 31 1996
I was also referred to the polIcy statement whIch governs the payment of ment
mcreases The relevant sectIOns of thIS polIcy are as follows
EntItlement A publIc servant, provldmg hIS work has been
satIsfactory shall be granted an mcrease m salary
annually or semI-annually as prescribed m the
applIcable salary schedule, from hIS eXlstmg rate to
the next hIgher rate m the salary range
Salary Increase GENERAL POLICY - One Step salary mcreases
ProvIsIOns - May be granted annually or semI-annually as
prescnbed by the applIcable salary schedule
- Will take effect on the employee's anmversary
date
ANNUAL INCREASES - An employee whose
posItIOn IS allocated to a classIficatIOn for whIch
annual mcreases are stIpulated wIll
6
- Have one anmversary date per year
- Be elIgIble for salary Increases at Intervals of
twelve months from the anmversary date
establIshed at the tIme of assIgnment to the
classIficatIOn.
ActIng AppoIntments An employee fillIng a posItIOn on an actIng
appoIntment IS elIgible to receIve a salary
Increase wIthIn the salary range of the
classIficatIOn for that posItIOn. His anmversary
date IS establIshed from the date he undertakes
the actIng appoIntment, In accordance wIth
promotIOnal rules
REVERSION TO FORMER POSITION -
Where an employee who has held an actIng
appoIntment reverts to hIS former posItIOn hIS
former anmversary date wIll be restored.
The Employer argued that the CollectIve Agreement clearly prescnbes what IS to
occur when an employee IS temporanly assIgned to a hIgher rated classIficatIOn. In ItS
vIew ArtIcle 8 1 1 proVIdes that a RE03 who IS paid the top rate of $15 71 per hour for
that classIficatIOn would receIve the actIng rate of $16 19 per hour the lowest rate for the
HGF/W1 classIficatIOn, when temporanly assIgned to the Winter ShIft SupervIsor
posItIOn. The Employer argued that the RE03 who was temporanly assIgned to the
Winter ShIft SupervIsor posItIOn would never receIve a ment Increase because the RE03
would never be In the temporary posItIOn for more than a year from the date he or she
undertook the temporary assIgnment. Counsel noted that the hIStOry of how actIng
Winter ShIft SupervIsors were paid for the WInter seasons from1990-91 to 1995-96 IS
Irrelevant because the Employer had advIsed the Umon pnor to the CollectIve Agreement
that It would cease paYIng ment Increases to employees actIng In temporary posItIOns
7
The Umon took the posItIOn that an RE03 who had prevIOusly enjoyed a ment
Increase whIle In the posItIOn of Winter ShIft SupervIsor should contInue to benefit from
the ment Increase dunng the 1996-97 WInter season and subsequent WInter seasons
Counsel submItted that It IS sIgmficant that the same employees would be assIgned the
Winter ShIft SupervIsor posItIOns and then revert to the RE03 classIficatIOn at the end of
the WInter season. Counsel submItted that the regulanty of the WInter assIgnment for the
gnevors took thIS sItuatIOn outsIde of the scope of ArtIcle 8 1 1 The regulanty of the
assIgnment, In her submIssIOn, meant that the employees were not "assIgned
temporanly" Counsel submItted that an analogy could be made between seasonal
employees, who are entItled to receIve ment Increases, and the RE03s who perform the
Winter ShIft SupervIsor dutIes In counsel's submIssIOn, the partIes could not have
Intended seasonal employees to receIve ment Increases whIle the actIng Winter ShIft
SupervIsors who perform the dutIes of that posItIOn every wInter would not receIve them
Counsel submItted that, gIven the umque CIrcumstances here, the partIes Intended actIng
Winter ShIft SupervIsors to receIve ment Increases, as they had In the past.
In my VIew the Employer IS correct In ItS assertIOn that thIS dIspute IS governed
by ArtIcle 8 1 1 of the CollectIve Agreement. In that provIsIOn, the partIes have
specIfically addressed what IS to transpIre when an employee IS assIgned the dutIes of a
posItIOn In a classIficatIOn WIth a hIgher salary maXImum for a temporary penod In
excess of five workIng days In such an Instance, the employee IS to be paid actIng pay In
accordance wIth the next hIgher rate In the hIgher classIficatIOn. When the gnevors are
assIgned the dutIes of a Winter ShIft SupervIsor they occupy the hIgher classIficatIOn for
8
a few months dunng the WInter season and then return to theIr HE03 posItIOns ThIS
assIgnment to the Winter ShIft SupervIsor posItIOn IS clearly a temporary assIgnment
WIthIn the meamng of ArtIcle 8 1 1 The effect of thIS provIsIOn IS that the gnevors are to
be paid $16 19 per hour when performIng dutIes that fall wIthIn the HGF/W1
classIficatIOn. The fact that the gnevors obtaIn the same assIgnment year after year does
not change the character of the assIgnment. There IS no provIsIOn In the CollectIve
Agreement whIch provIdes that a temporary assIgnment whIch occurs wIth regulanty
falls outsIde of the scope of ArtIcle 8 1 1 The analogy between seasonal employees and
the gnevors put forward by the Umon IS not a true analogy Seasonal employees who
return for consecutIve seasons are dealt wIth specIfically In the CollectIve Agreement.
The Issue for the gnevors, who do receIve ment Increases as HE03s, IS what are they to
be paid when they move from theIr classIficatIOn on a temporary basIs to a hIgher paYIng
classIficatIOn, a matter whIch IS addressed by ArtIcle 8 1 1
As prevIOusly noted, the Employer gave notIce to the Umon pnor to the executIOn
of the CollectIve Agreement that It would no longer provIde ment Increases to employees
who acted temporanly In the Winter ShIft SupervIsor posItIOn. Therefore, the Umon was
not In a posItIOn to advance an estoppel argument. In order to succeed, the gnevors must
find support for theIr posItIOn In the language of the CollectIve Agreement. I was
referred to only one provIsIOn In the CollectIve Agreement whIch deals wIth ment
Increases In essence that provIsIOn provIdes that the practIce of ment Increases wIll
resume at the end of the SocIal Contract penod on an employee's normal anmversary
date The detaIls of how ment Increases are to be granted are not set out In the CollectIve
9
Agreement. A reVIew of the Employer's wntten polIcy on ment Increases dIscloses that
employees on an actIng assIgnment of the sort the gnevors engaged In can only receIve a
ment Increase If the assIgnment lasts more than one year SInce the gnevors are never In
theIr actIng assIgnment for more than a few months, they would not be entItled to a ment
Increase whIle performIng WInter shIft supervIsIOn dutIes WhIle the polIcy does not
appear to address a sItuatIOn In whIch an employee resumes an actIng assIgnment for
whIch the employee had receIved a ment Increase prevIOusly It cannot be vIewed as
specIfically contemplatIng the payment of ment Increases In these CIrcumstances
For the foregoIng reasons, It IS my conclusIOn that the Umon has not establIshed
that the Employer has contravened the CollectIve Agreement as alleged. AccordIngly
the gnevances referred to In the first paragraph of thIS decIsIOn are dIsmIssed.
Dated at Toronto thIS 17th day of November 1999
11
Ken Petryshen - Vice-Chair