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Home My WebLink About1997-1571UNION97_12_18 " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 1571/97 OPSEU #97U146 IN THE MA ITER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Grievor - and - The Crown III Right of Ontario (Management Board Secretanat) Em ployer BEFORE F Bnggs Vice-ChaIr FOR THE K. Lawrence UNION GrIevance Officer Ontano Public Service Employees Umon FOR THE D Chlro EMPLOYER Coordinator CollectIve Agreements Management Board SecretarIat HEARING November 19,1997 , Subsequent to the ratificatIOn of the most recent collective agreement. It became apparent through the f1lmg of hundreds of gnevClnces. that there were ma.ny dIsputes between the pal11es "\1th reSpt('t to ~c1e 31 15, regardmg the converSiOn of unclasslt1ed pOSIllons to classIfied pOSIhons Accordmgly the p,u1Ies agrttd to an expedIted process \\, here gnevan\.es \\ ert heard and a number of decl"lons have been rendered to date As hoped by the parties the Issues brought before tillS Board ha\e been sufficlentl) broad so as to 8110\\ the parties to apply the declSlons to mcU1~ outstandmg gnevances obVlatmg the need fOf doz~l1s of heanng days Article 31 15 states CO~VERSI01\ OF CNCLASSIFIED POSITIO\!S TO CLASSIFIED POSITIOKS 311"'11 Effectn,e upon the date of r3tlficatlon. where the same \york. has bee,} pertorrned b\ an empiovee 111 the l nclasslfied SerVICe for a penod of at least two (2) C011secutIYe vears, except for SItuatIons where the Iwclasslfied emplovQe IS replacmg a classlt'ied emplovee on a leave of absence auth0r17.ed m the Emplover or as pro\'lded for tmder the collectl\'e agreemel!t, and 'where the mltllstr, has determined that there IS a contll1Ulllf, need for that v,wk to be perfoDlled on a full-tune baSIS. the mll:J.sm shall estabhsh a posltIon Wlthm the Classltied Service to peJi'iYt11 that worl-.. :; I 1'; 1 2 \\'here the mll~lstf\ has determmed that it will comert a pOSitIOn In accordance \nth ArtIcle ~ 1 1" 1 1 the status of the l11cmnbent 111 the posItlOn \\111 be COllyertoo from unclaSSified to classltied, proytded that the Il1cumbent has been ill the posltlon 111 questIon for at least two t~ ) years, :; 1 1 ~ ,2 For the purpose of ArtIcle 31 15 full tune shall man a nUl11l11tIDl of one thousand seven hundred and thll1\ -two and three quarter (] n 2 (5) stralbht time hours or one thousand Ulne Inmdred und twelve (1 y 12) strmght-tane hours 111 each vear as applicable ll1cludmg :mthorlzed lem es (,f :lbsence HoweH~r all hour" worked b'\ an undasslfied employee whlle he IS replacmg a classlfied en:pio\ee who IS on an authorJ7ed lea\e of absence shall not b~ mc1uded 111 comput1l1g the annual hours worked b, the lUldasslfied employee The 1!l5tam polle,> grIevance states the Employer has Violated the colJectJ'\e agreement because autllOnzed lea",es of absence tak.en by uncla::,slfleJ employees are not mduded when calculatlllg straight time hours to\.\llrd the consecutrve two \ ear penod (ArtIc:e 31 IS 2) The parties agreed that a jec ~lor; on thiS pohc) question \\'111 J:fD\ Ide a remech for nUl11erou::. II1chVIdual gne\ance~ 1 2 It '....as the lTmon s pOSItion that Article 31 15.2 should be gn en It~ plam meanmg thereb\, al10\\ mg unclassdied emplovees to have anv authonzed leaves of absence accounted for when calculatll1g the con:>ecutJ\ e twO year perlOu" The leaves of abSe!1Ce contemplated In this provIsion wOLl]..l be to Game a fev" bereavement leave, vacatIOn. parental leave and \vorkers compensatIOn .1b~ences F lrlbeI' the: t :lIOn ~ubmltted that It;, view In thIS matter IS l.OnsIst~nt vvlth other collectl\ e agreement prO\!S;lmS For example. Cbsslfied ernplo\ ees maintaIn seI1lorm whIle on :mous authoflzed leaves ofabs~nC:i;: \1s Lawrence, for the Umon remmded the Board that the calculatIOn of the Il1cumbent s t\H) penod IS oni) one of the ,~pects of the many f~lctors to be met m detenn1111l1g v,hether an unclassIfied emplovee wl11 be comerted to a c1asslfied pOSItIon, Those other tactors have been the subJect of earlier de' I stOm between these partIes, The Umon asserted that m mam lllstances Unc1a:iSlfied employee:. ha, e \""orked d sene:, of contracts over nla:;\ veaTS and vet have not met the munber of hours reqUlred 111 ArtIcle ~ 1 1" 2 becallse the Emplover is not l11c1udmg authonzed lea\ es of absence Such a result IS not reasonable The Omon ask.ed the Board 101' a declaratIon upholdIng the gne\'anc~ In the altemat1\ e, It was contended that t'1e Emplover 5 pOSltIon \Vas contrarY to the Human Rights (ode because of adverse ImpaCt dlscnnunatJon, ~,1J Chuo, for the Employer took Issue \;ll1th the Lmon s altemauve argument and suggested that It ",'as no\\ attemptmg to expand the sc,ope of the brrIevance, Further It v,,-as submltted that eVldence v'otdci he req Ulred to make a findmg of adverse Impact diSCnmInatIon and the Board had no such e\ idence befare 1t The Employer submJtted that under thiS collective agreement, nghts are gl'ven to unclass1fied mcumbents to convert to classIfied status whereas pre\'loush oni) a pOSitIon would be converted .nd incumbents had 3n mereh an opportunltv to apply for the new vacant claSSIfied pOSltlOn A.rtlcle 31 l'i:'; defines those fullllme pOSItIOns It \'vas the EmjJlover s contentlOI1 that Junsprudence has enshnned thn empJovees rntl5 ha'...: actuall \ worked the time at Issue 111 order to have those hours conSidered for vanous calculation purrose-, It J rehed on Re- The- ('''0''11 in Right of Ont.lrio (Ministrv (If ( omnnmity and ~odaJ Se:'vu'es) and OPS.El (~cott ('t all (Apnl 2 19(7) unreported (0 \ Gra'y) Re The (ro'''''l) in RIght of Ontario C'llOlstl; of Correctional SenlCes) & OPSEl CPltfield et all (December 14 199:) unreported (Vent\) Further the parties ha\'e taken this concept mto account Hi \'anOLLS :;ectlOns of the collectn"e agreement .\11lcle 18 I provides fox semont\ and the len~>1h of cont!nllOLLS 5en ICe and throughout that 3111c1e rdl:rence 15 made III actual number or +'Ull-tulle weeL \\oi'hd \emphr1s1s rmnel Cleath emplOyee5 must have \vor!...ed lfsllCh till1e J5 1'1 hI" taken Din 5ccount f:)[ the Calcl!latJDn oh,anou) benefits The reference to lea\ es uf absence III Article' 1 1":: IS not fnr thl; person but for the pO:.it10n, the Emplo\er a rb'1led , ~uch an mterpretatlon ehm1l13tes potentIal abuse Tfthe Union IS correct 111 ItS vlev..,- then It IS possible that a person \vho has been absent from the \.\/orkplace for years could be comelied to a classltied posItlon and that IS not \:vha+ the panICS 111tended DEC1SIO~ I begll1 b\ statlllg that the collective agreement IS somewhat confUSing, no doubt leadmg to tillS matter 113V11Jg to be hlIgared, 1t IS ImpOnat1t to recall that the purpose of ArtIcle 31 l"i 15 to pro\ ide unclasslfied employees who meet certam cntena WIth classlf!ed pOSItions provldmg the Mmlstfl has dete -mIned there IS a contmumg need for that work to be petformed on a lull-tune baSIS ~iter conslderatlon,l am of the Vlev, that the UnlOll 5 \'Ie\\" must preyall The Employer sugs~sted that the leaves orabsence refelTed to In Article:; 1 l'i 2 goes to the position, not the emplayee T dIsagree Positions. do not have lea\ es of absence The people \'iho hold p03Hlons have lea\ es of absence tor vanous reasons, T accept the suhmlSSlon of the 1. l110n that the plain meanl11g of the words lead to the conclu51on that authonzed lea\ es of absence are to be Included wb~ 1 ca~C~:i3t1l1g straIght llme hours The Emp10ver suggt:Sted that the coUectIve agreement as a \\"hoie h2,S enshrined the c::mcept that tune . 4 must be worked to be considered for the calculation of vanOllS benefits and accordmgly the gne\ance mus, fall 1 thmk not. It 15 correct that certam sections of the collectI"e agreement specd'icalh provIde phra~e:, ~lIch as, wt'eks work.ed' Thu:> 1t IS apparent that the pmtlfs tool the t1me to llldllde a speclfi..:: reference to tlIne worked \vhere the) agreed It was appropnate to do so 'Such words are nor found 111 ~J1lcle 31 15 To tIne! tor the Employer viould have me read 1I1tu the collectIve agreement a quahtic3tIOn that sImplv does not eXIst. <\ccordlllgh the grievance IS upheld, 1 remalll seIzed ltl the ewnt that the parties b."1\ e difficult\ 1l11plementll1~ tll1~ deCISIOn Dated at Plcton, thiS 18th of December 1997 ') --. 1 / 1/ / / ( lyj) j/ " i /" 'Ji!:~y4fY Fe . city D. Brig~ \ Ice Chalf I l i