Loading...
HomeMy WebLinkAbout1997-1873.McPhail et al.03-05-05 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1873/97 1735/01 1796/01 0362/02,0363/02,0364/02 UNION# 98B028 02B198 02B207 02B364 02B365 02B366 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uillon (McPhaIl et al ) Grievor - and - The Crown III RIght of Ontano (Miillstry of the Attorney General) Employer BEFORE FelIcIty Bnggs Vice-Chair FOR THE UNION Mark Barclay Gnevance Officer Ontano PublIc ServIce Employees Uillon - and - John BrewIll Counsel Ryder Wnght Blair & Doyle FOR THE EMPLOYER Carol Ann Witt and Mary Pat Moore Counsel Management Board Secretanat HEARING January 29 2003 2 DECISION There were dozens of gnevances filed by unclassIfied employees who work m the courts around the provmce assertmg that they have been Improperly demed converSIOn to full tune status Most of the gnevors are workmg eIther as court reporters or court clerks Dunng the course of mediatIOn It became apparent that the Issues would not be resolved between the partIes and It was agreed to expedIte the lItIgatIOn of outstandmg matters Rather than puttmg mdIvIdual fact sItuatIOns before me the partIes elected to submIt three questIOns for determmatIOn It IS hoped that the answer to these questIOns wIll allow the partIes to ascertam whether the gnevors are entItled to be converted to full tune status For the purposes of tlllS decIsIOn It IS understood that "unclassIfied" means those unclassIfied employees who are on-call as reqUIred employees It was common ground that many of the gnevors have worked as unclassIfied employees for many years WhIle It IS true that the Mimstry of the Attorney General has some full tIme classIfied court reporters, the vast maJonty are unclassIfied. The relevant prOVISIOns of the collectIve agreement are as follows CONVERSION OF UNCLASSIFIED POSITIONS TO CLAS SIFIED POSITIONS 31 15 1 1 Where the same work has been performed by an employee m the UnclassIfied ServIce for a penod of at least two (2) consecutIve years, except for sItuatIOns where the unclassIfied employee IS replacmg a classIfied employee on a leave of absence authonzed by the Employer or as provIded for under the Central Agreement, and where the mmIstry has detennmed that there IS a contmumg need for that work to be performed on a full-tIme basIs, the mmIstry shall establIsh a posItIOn wIthm the ClassIfied ServIce to perform that work 31 15 1 2 Where the mmIstry has determmed that It wIll convert a posItIOn m accordance wIth ArtIcle 31 15 1 1, the status of the mcumbent m the posItIOn wIll 3 be converted from unclassIfied to classIfied, provIded that the mcumbent has been m the posItIOn m questIOns for at least two (2) years 31 15 2 For the purpose of artIcle 31 15, "full-tune" shall mean a mmunum of one thousand seven hundred and thIrty-twO and three quarter (1,732 75) straIght- tIme hours or one thousand nme hundred and twelve (1,912) straight-tIme hours m each year, as applIcable, mcludmg authonzed leaves of absence However, all hours worked by an unclassIfied employee whIle he or she IS replacmg a classIfied employee who IS on an authonzed leave of absence shall not be mcluded m computmg the annual hours worked by the unclassIfied employee QUESTION # 1 Without prejudice to the Employer's right to object to that the Issue IS marbItrable, IS the Employer required to pool the hours of unclassified employees to fulfill the requirements of Article 311 5.11? It was the Umon's posItIOn that the Employer should be oblIged to pool the total number hours of the unclassIfied employees m tlus context The most straightforward method to apply would have the Employer total all of the work hours of unclassIfied employees who are performmg the same work under a umfied admmIstratIOn, for example, m the London courts The hours of the leaves of absence contemplated m the tlurd questIOn should be added to tlus amount and then the total would be dIvIded by the number of hours of a full tIme employee, that IS, 1732 75 hours The answer to thIS equatIOn wIll provIde the number of full tIme posItIOns that the Employer IS oblIged to convert A more complex method of poolIng would reqUIre an analysIs of vanous courtroom staffing by unclassIfied staff over a two years penod and dIvIde that figure by 1732 75 The core work of these employees performed m a courtroom That work and vanous other tasks wItlun the office settmg IS the "same work" as consIdered under the collectIve agreement There can be no doubt that there IS a contmumg need for the work and therefore the employees should be converted. 4 The UnIon suggested that the MInIstry of CorrectIOns and the UnIon negotIated a Memorandum of Agreement that allows for poohng of hours for converSIOn That agreement IS an IllustratIOn of how the partIes can elect to deal wIth the complexItIes of converSIOn In the face of a workforce that has comphcated scheduhng It was the Employer's posItIOn that the first questIOn IS InarbItrable because there IS no consIderatIOn of the poolIng of hours under any prOVISIOn of the collectIve agreement In order for me to find for the UnIon I would have to alter, amend or otherwIse rectIfy the collectIve agreement and that IS, sImply put, beyond my jUnSdIctIOn Ms WItt, for the Employer, stated that the Memorandum of Agreement referred to by the UnIon was not ordered by a Board of ArbItratIOn but was an agreement between the partIes WhIle those partIes were free to provIde for condItIons that were beyond the terms of the collectIve agreement, It IS not aVailable to thIS Board to Impose that one- tune exceptIOn upon these partIes In the event I find I have jUnSdIctIOn to deal wIth thIS questIOn, the Employer asserted that there IS notlllng In artIcle 31 15 1 1 that reqUIres the poohng of hours as suggested by the UnIon Indeed, artIcle 31 15 1 1 consIders "an employee" or "an Incumbent" ObvIOusly It cannot be apphed to a group of employees The UnIon has asked that I lump together any and all work performed by all these employees IrrespectIve of theIr posItIOn or classIficatIOn and find It to be the "same work" as consIdered under artIcle 31 15 1 1 That cannot be done gIven the language of the collectIve agreement RegardIng the Issue of "contInuIng need", the Employer contended that It has determIned that there IS no need for work on a full tIme basIs because the work at Issue IS subject to the vaganes of the court It would not be dIsputed that heanngs adjourn wIth httle, If any, notIce and that type of uncertaInty does not lend Itself to a large full 5 tIme workforce The Employer cannot predIct the work that wIll actually be done on any partIcular day In tlllS regard the Employer rehed upon The Crown III Right of Ontario (Ministry of Attorney General) and OPSEU (Group Grievance) (February 12,2002), unreported (Abram sky) GSB#0683/99 In reply, the UnIon dIsputed that Its suggested InterpretatIOn reqUIres an addItIon of words to the collectIve agreement Mr BrewIn stated that there are words that are Imphed by vIrtue of the words actually used by the partIes For Instance, artIcle 31 15 1 1 contemplates "authonzed" leaves of absence Surely the plaIn meanIng of authonzed leaves means leaves of absence that are acceptable to the Employer and not only those leaves expressly consIdered under the collectIve agreement Therefore, If the Employer has allowed employees to be unavailable for the purposes of vacatIOn or sIck leave they should be consIdered to be on an authonzed leave of absence Further, VIce Chair DIssanayake stated In Re GSB#803 (~,'upra) that the collectIve agreement specIfically Instructs that the use of the sIngular means and Includes the plural and VIce versa and any changes that have occurred In the language of the collectIve agreement SInce hIS decIsIOn are not determInatIve for the purposes of thIS dIspute After consIderatIOn of tlllS matter I cannot find for the UnIon IrrespectIve of my VIew of the Issue of JunsdIctIOn, the collectIve agreement sImply does not provIde the benefit suggested by the UnIon Poohng of entIre bargaInIng UnIt's collectIve hours IS not congruent WIth the prOVISIOns of artIcle 31 15 1 1 ArtI cle 31 15 1 1 provIdes converSIOn to full-tIme status for an employee who has met certaIn specIfied cntena. It was asserted by the UnIon that the decIsIOn of VIce Chair DIssanayake In Re GSB #803/91 should prevail and be apphed In these CIrcumstances I dIsagree Indeed, gIven the language of the present collectIve agreement, It cannot VIce Chair DIssanayake's decIsIOn was Issued In 1994 when the entItlement to converSIOn was consIderably 6 dIfferent that It IS m the present collectIve agreement Indeed, there was no mdIvIdual nght to converSIOn Under that collectIve agreement It was "posItIOns" that were converted to full tune, not employees As suggested by the Umon, there was a specIfic consIderatIOn of whether the smgular "employee" mcluded the plural "employees" m the converSIOn artIcle It was detennmed that If the same work was bemg perfonned by a group of employees rather than by one employee so as to aVOId a full tune posItIOn bemg estabhshed, the collectIve agreement was bemg vIOlated. Indeed, It was Said at page 7 of that decIsIOn, "It must be remembered that the prOVISIOn IS about converSIOn of "posItIOns" and not about convertmg the status of mdIvIduals from unclassIfied to classIfied" It was m that context that he was consIdenng whether the word "employee" as stated m the collectIve agreement mcluded the plural ObvIOusly, he found that It would be wrong to dIsmIss the gnevance m that mstance If the Employer could CIrcumvent ItS obhgatIOns under the collectIve agreement by schedulmg more than one employee to do the work m questIOn However, the prOVISIOns of thIS collectIve agreement are vastly dIfferent Now, mdIvIdual employees are converted to full tune status, not merely the posItIOn Accordmgly, collectIve hours spent domg a type of work IS not determmatIve for the purposes of thIS matter In consIdenng the first questIOn It IS not necessary for me to detennme whether there IS a "contmumg need" for thIS work. ConversIOn to full tIme status for employees reqUIres both a findmg that the same work has been performed by an employee for eIghteen months and that there IS a contmumg need for the work to be done Havmg found that poolmg of hours as suggested by the Umon IS not sufficIent for the purposes of artIcle 31 15 1 1, It IS not necessary to address the Issue of contmumg need. 7 QUESTION #2 Do the followmg quahfy as "same work" for purposes of quahfymg unclassified employees for conversIOn under article 3115.11 1 Same job, same classificatIOn, more than 1 contract [multiple locatIOns] 2 Same job, same classificatIOn, one contract, multiple locatIOns 3 Different job, different classificatIOns, a contract for each 4 Different jobs different classificatIOns, different locatIOns different contracts. Mr BrewIn asserted that It there was no dIspute that In some Instances employees IncludIng the gnevors are employed on more than one contract at anyone tIme The contract mIght be locatIOn specIfic, for example famIly court It was the Umon's posItIOn that the eXIstence of more than one contract at the same tune IS Irrelevant to the analysIs that should be applIed. It IS appropnate for tlus Board to look past the specIfics of any IndIVIdual contracts and see the realIty of the Employer's overall work assIgnment and define that body of work as "same work" If, on a regular basIs, the Employer assIgns a body of work to a group of unclassIfied employees for a two year penod then the prOVISIOns of artIcle 31 13 1 1 have been met Not surpnsIngly, the Employer took a dIfferent VIew None of the examples set out meet the necessary defimtIOn of "same work" as needed for the purposes of converSIOn It does not make sense that "same work" would extend over more than one work locatIOn for these purposes The fact that the employee works In more than one locatIOn IS IndIcatIve of there beIng InsufficIent full tIme work In one locatIOn Indeed, If for some reason thIS Board found there was an employee who should be converted to a full tune posItIOn, where would the locatIOn of that posItIOn be? In tlus regard the Employer relIed upon Re The Crown m Right of Ontano (Ontano Human Rights CommissIOn) and OPSEU (Mistry) (Febnmry 10, 1998), unreported (Venty) GSB#0569/96 8 In Re Mistry (supra), VIce Chair Venty stated at page 10 The matter of the same work IS not an absolute concept It must be gIven a meanIng that takes Into account the purpose of artIcle 31 15 1 1 and yet be wIthIn the hmIts of fairness and reason In tlus connectIOn, It IS not entIrely wIthout sIgnIficance that any dIversIOn from the same work Imphes some affirmatIve act of dIrectIOn on the part of the employer eIther expressed or Imphed. Would an unclassIfied employee's work lose It (~,'[c) charactenstIc of sameness because IncIdentally or In a very hmIted way he or she dId other work? There IS a famIhar maXIm that common sense often makes good law It IS In my vIew apphcable In tlus case I tlunk the real questIOn before me IS whether the work of the gnevor taken as a whole was the same throughout the penod of two succeSSIve years such as to meet the purpose of artIcle 31 15 1 1 In that case, the Employer was tryIng to conVInce the Board that the same work has to be performed "In a sIngle posItIOn" In thIS regard, VIce Chair Venty stated, at page 7 I read the two artIcles In vaIn for any IndIcatIOn of an IntentIOn to convert only certaIn unclassIfied Incumbents to classIfied status Nor do I find any reason of sIgnIficance or fairness to draw a dIVIdIng hne between the employee who performed the same work for a penod of at least two consecutIve years In a sIngle posItIOn and the employee who performed the same work for a penod of at least two consecutIve years In more than one posItIOn To my mInd, "the same work" IS the controlhng ImperatIve wIthout regard to a sIngle posItIOn If the partIes had Intended the same work to be performed In a sIngle posItIOn they could have so stated Instead of leavIng It In the mystIfYIng sIlence of constructIon .I have already construed artIcle 31 15 1 1 to mean that the sameness of the work IS the controlhng factor rather than the same work In a sIngle posItIOn For that reason, In my VIew, a change In the geographIcal locatIOn of the workplace does not sever the contInUIty of the same work. The questIOn In respect to the "sameness" of the work IS one of fact In my VIew, VIce Chair Venty has answered much of tlus questIOn In Re Mistry, he consIdered partIcular facts and attempted to apply the prOVISIOns of artIcle 31 15 1 1 accordIngly He found that work locatIOn dId not sever "same work", that same work does not mean same posItIOn, and that In the facts before hun, the nature of the gnevor's work changed from one classIficatIOn to another and at that pOInt she was no longer dOIng the same work. KeepIng hIS comments and specIfic findIng In mInd, It 9 seems to me that the matter of the number of contracts IS not, m and of Itself, detennmatIve Further, locatIOn IS not, m and of Itself, sufficIent for a findmg that the work IS not the same However, generally speakmg because dIfferent classIficatIOns have dIfferent work dutIes and responsIbIhtIes, a dIfferent classIficatIOn would, probably m most mstances, bnng a findmg that the work IS not the same QUESTION #3 Without prejudice to the Employer's right to object that the Issue IS marbItrable, do the circumstances, listed below from 1 to 9, qualify as leaves of absence for unclassified employees for purposes of artIcle 3115.2 1 VacatIOn and statutory holidays 2 UnIOn activIties (as per Article 23) 3 SpecIal Leave (as per Article 25) 4 Jury Duty (as per Article 27) 5. Sick leave/WSIB leave 6. Bereavement Leave (as per Article 3110) 7 Pregnancy Leave (as per Article 31 9 1) 8. Parental Leave (as per Article 31 9.2) 9 Canadian Forces/Military Leave (as per /Artlcle 28) It qUIckly became apparent dunng the course of the heanng that there was no dIspute that Umon Leave, Jury Duty Leave, Bereavement Leave, Pregnancy Leave, Parental Leave and MIhtary Leave are authonzed leaves under the collectIve agreement to whIch unclassIfied employees are entItled. Further, those leaves of absence quahfy as leaves of absence for unclassIfied employees for the purposes of artIcle 31 15.2 However, the Umon's posItIOn went beyond that agreement It submItted that "authonzed leaves of absence" as contemplated m artIcles 31 15 1.2 and 31 15 2 are, sImply put, those leaves that have been authonzed by the Employer and not only those leaves set out m the collectIve agreement Therefore, all of the hours of any leave of absence that has been approved by the Employer should be taken mto account for the purposes of artIcle 31 15.2 If, for whatever reason, the Employer granted an 10 unclassIfied employee a Special Leave of absence, those hours would be mcluded m the detennmatIOn of hours SpecIfically addressmg the Issue of vacatIOn or hohday leaves, specIal leave and leaves for sIckness, It was the UnIon's assertIOn that IrrespectIve of whether there IS an express approval for such penods, the Employer's allowmg tune off for these purposes constItutes authonzatIOn of such a leave Ms Moore, for the Employer, conceded that UnIon Leave, Jury Duty Leave, Bereavement Leave, Pregnancy Leave, Parental Leave and MIhtary Leave are authonzed leaves under the collectIve agreement to whIch unclassIfied employees are entItled. However, It was asserted that unclassIfied employees are not entItled to other hsted leaves There IS a hst of leaves of absence that unclassIfied employees are entItled to at artIcle 31 16 1 VacatIOn and statutory hohday leave, sIck leave and special leaves are not mcluded m that hst and It would be beyond the JunsdIctIOn of tlllS Board to grant the UnIon's request m tlllS regard. I begm by saymg that although the Employer can grant leaves of absences for purposes other than those hsted m artIcle 31 16 1 to unclassIfied employees, there IS no contractual entItlement to those leaves NeIther IS there any entItlement to any hours of such leaves bemg mcluded m calculatIOn of straight tIme hours for the purposes of detennmmg nghts to converSIOn I cannot find that there IS such a nght m the absence an express prOVISIOn m the collectIve agreement Further, I cannot agree wIth the UnIon that an Imphed or express agreement from the Employer for non collectIve agreement leaves of absence IS sufficIent for those leaves to be consIdered for these purposes In Re GSB#1571/97 I was asked to determme whether authonzed leaves of absence taken by unclassIfied employees were to be mcluded when calculatmg straight tune 11 hours toward the qualIfYIng penod for converSIOn set out In artIcle 31 15 2 At page 3 I found that "the plaIn meanIng of the words lead to the conclusIOn that authonzed leaves of absence are to be Included when calculatIng straight tune hours" As stated above, I am of the VIew that "authonzed leaves" are those leaves set out at artIcle 31 16 1 I have not been persuaded to add to or detract from that detennInatIOn It IS my hope that the partIes wIll find thIS decIsIOn to be of assIstance In the event that there are dIfficultIes wIth the outstandIng gnevances, I remaIn seIzed. Dated In Toronto, thIS 5th day of May, 2003 I . FelIcIty D Bnggs VIce Chair