HomeMy WebLinkAbout1999-1977.Anthony et al.05-03-08 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 1999-1977 2000-1013 2000-1302,2000-1610 2001-0969 2001-0970
UNION# 00D159 00D390 00D461 01C066 01B311 01B312
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Anthony et al) Union
- and -
The Crown In RIght of Ontano
(Mimstry of Labour) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Richard Blair
Ryder Wnght, Blair & Doyle
Barnsters and SOlICItorS
FOR THE EMPLOYER Andrew Baker
Counsel
Management Board Secretanat
HEARING February 28 2005
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Award
The partIes' dIspute the proper InterpretatIOn of the Letter of UnderstandIng entered Into
on June 25 1999 regardIng "CertaIn ClassIficatIOn AdJustments under the AdmInIstratIve
BargaInIng Umt CollectIve Agreement." The partIes dIspute the rate of pay assIgned to the
gnevors, Employment Standards AudItor 2's, by the Mimstry of Labour pursuant to thIS
agreement.
Facts
For the purposes of thIS Award only a number of facts were agreed to by the partIes The
gnevors are all Employment Standard AudItor 2's (ESA 2s) Pnor to the 1999-2001 collectIve
agreement, most of the gnevors were at the fifth step (out of SIX) In the salary progressIOn for
that posItIOn, earnIng $991 75 weekly Some of these IndIVIduals were qUIte adversely Impacted
by the Social Contract Act, whIch froze theIr salanes for a number of years
Dunng collectIve bargaInIng for the 1999-2001 agreement, the partIes agreed to create
new class standards and establIsh a new pay framework for a number of classIficatIOns In the
admInIstratIve bargaInIng umt, IncludIng the ESA 2's That agreement provIdes, In relevant part,
as follows
The partIes agree to certaIn classIficatIOn adJustments as reflected In the attached.
The adJustments wIll be effectIve January 1 1999
The partIes agree that these classIficatIOn adJustments shall not be challenged by
eIther party under the Pay Equity Act because they reflect adJustments to address
skIlls shortages as contemplated by SectIOn 81 (1) (e) of the Pay Equity Act
SIgned thIS 25th day of June, 1999 In Toronto Ontano
3
ADM
Tax Auditors
ADM
Systems Officer Series
ADM
Ins pectors/Investigators
It IS agreed that the employer wIll undertake a reVIew of the folloWIng classes,
wIth a VIew to updatIng/reVISIng class standards and establIshIng a new pay
framework for the IdentIfied InVestIgator classes
The pay framework shall have 3 to 4 salary ranges
The mImmum and maXImum of the two hIghest ranges shall be as follows
2nd hIghest salary range
mImmum $1000 per week maXImum $1158 per week
hIghest salary range
mImmum $1080 per week maXImum $1242 per week
The lowest salary ranges as well as steps between the mImmum and the maXImum
shall be establIshed upon completIOn of the new class standards
Highest salary range: Populations
EnvIronmental Officer 5 InVestIgator Jobs 66 (approx)
FIre ServIces InvestIgator 2 10
2nd highest salary range:
Employment Standards AudItor 2 104
EnvIronmental Officer 4 InVestIgator Jobs 195 (approx)
FIre ServIces InvestIgator 1 32
Human RIghts Officer 2 45
OccupatIOnal Health & Safety Inspector 2 202
The lower salary range(s)
Employment Standards AudItor 1 29
PublIc Health Inspector 3 1
Safety InstructIOn Officer 2 7
Safety InstructIOn Officer 3 3
FIeld Worker 1 Homes for specIal care 4
Total 689
Employees whose current salanes are below the mImmum of the new range for
theIr revIsed class, shall move to the new mImmum
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Employees whose currently salanes are equal to or between the mImmum and
maXImum of the new range for theIr revIsed class shall move to the step that IS
closest to but not less than theIr eXIstIng rate of pay
Employees shall retaIn theIr current hours of work schedule and overtIme
entItlements
The 1999 general wage Increase wIll be applIed to the above ranges
The Employer agrees there wIll be no wage decrease as a result of the
updatIng/reVISIng class standards and establIshIng a new pay framework for the
IdentIfied InVestIgator classes
The collectIve agreement for the AdmInIstratIve BargaInIng Umt was also sIgned off by
the partIes on June 25 1999 In ArtIcle ADM17 1 the partIes agreed that "[t]he effectIve date of
any changes to the terms of thIS Agreement from the prevIOUS Agreement, unless otherwIse
IndIcated, shall be March 27 1999 " In ArtIcle ADM 16 1 the partIes agreed as follows In
regard to salary
ADM 16 1 (a) EffectIve January 1 1999 salary rates shall be Increased as follows
January 1 1999 100%
January 1 2000 135%
January 1 2001 195%
In ImplementIng the January 1 1999 wage Increase of 1%, the partIes agreed that It was
Implemented In May 1999 retroactIvely to January 1 1999 ThIS 1 % wage Increase, when
applIed to the gnevors' salary of $991 75 led to a new weekly salary of $1001 67 Also dunng
the penod of January 1 1999 to June 25 1999 some employees had anmversary dates and
moved to the final, sIxth step of the salary progressIOn for ESA 2's, or $103889 (includIng the
1 % January 1 1999 Increase)
Thus, It can be seen that as of December 31 1998 - the last effectIve day of the pnor
collectIve agreement - the gnevors' were earmng $991 75 That places them wIthIn the
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paragraph of the Letter of UnderstandIng whIch reads "Employees whose current salanes are
below the mImmum of the new range for theIr revIsed class, shall move to the new mImmum "
The new mImmum for the ESA 2 posItIOn was $1000 00 per week.
Conversely as of June 25 1999 the gnevors' salary after the ImplementatIOn of the 1 %,
was $1001 67 or hIgher If they had an Intervemng anmversary date That would place them
wIthIn the sentence that reads "Employees whose current salanes are equal to or between the
mImmum and maXImum of the new range for theIr revIsed class shall move to the step that IS
closest to but not less than theIr eXIstIng rate of pay"
At some pOInt - and the date IS not contaIned In the record - the steps between the
mImmum and maXImum were Included In the collectIve agreement. A new classIficatIOn number
was created for ESA 2's, 05523 wIth the folloWIng salary progressIOn
05523 EMPLOYMENT STANDARDS AUDITOR 2
Pre 1999 1 % 01/01/99 1000 00 103971 107942 1119 00 115800
With 1 % 01/01/99 1010 00 1050 11 1090 21 113019 116958
With 1 35% 01/01/00 1023 64 1064.29 110493 1145 45 1185 37
With 1 95% 01/01/01 1043 60 1085 04 1126 48 116779 120848
The partIes' dIspute centres on when - what date - the gnevors' placement Into the new
class senes should have been determIned. The Employer relYIng on the sentence In the Letter of
UnderstandIng that reads "The adJustments wIll be effectIve January 1 1999" determIned that
the gnevors' salary as of December 31 1998 should be used to determIne placement.
AccordIngly the gnevors who were at the fifth step of the old salary progressIOn, earmng
$991 75 per week, were placed at the new mImmum of $1000 per week, then gIven the 1%
adJustment to the range, for $1010 00 per week.
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In the Umon's VIew that approach was In error Instead, gIven that the date of the Letter
of UnderstandIng IS June 25 1999 and the language of the Letter of UnderstandIng that
placement IS to be determIned by the employees' "current salanes" the Umon submIts that the
gnevors' placement should be based on theIr salary current as of June 25 1999 whIch would
Include the 1 % general salary Increase and any Intenm progressIOn on the salary schedule
Under thIS approach, the gnevors' salanes were "between the mImmum and maXImum of the
new range for theIr revIsed class [and] shall move to the step that IS closest to but not less than
theIr eXIstIng rate of pay" In the Umon's VIew the gnevors' should have been placed at the
$103971 step and, wIth the 1% added to that range, been paid at $105000 per week. It also
relIes on the language that "there wIll be no wage decrease as a result of the updatIng/reVISIng
class standards "
Decision
In my VIew the June 25 1999 Letter of UnderstandIng IS qUIte ambIguous In regard to
the date for determInIng employee placement In the new salary range One could read It as the
Umon does - that the employees' "current salary" as of June 25 1999 IS the date Or one could
read It as the Employer dId - that you compare the employees' "current salary" under the old
system to the range set forth In the new system, based on the language that the "adJustments wIll
be effectIve January 1 1999"
For the reasons set forth below I conclude that the Employer dId not vIOlate the Letter of
UnderstandIng when It determIned the gnevors' placement on the new salary range
FIrst, although the Letter of UnderstandIng was agreed to on June 25 1999 there IS no
IndIcatIOn that thIS date would be determInatIve of anythIng. The collectIve agreement for the
7
AdmInIstratIve BargaInIng Umt was also agreed to on that date, but the partIes' specIfically
agreed that "[t]he effectIve date of any changes to the terms of thIS Agreement from the prevIOUS
Agreement, unless otherwIse IndIcated, shall be March 27 1999" Thus, June 25 1999 was not
the "effectIve date" of changes to the agreement - IncludIng the Letter of UnderstandIng, whIch
IS part of the collectIve agreement. Rather the effectIve date IS March 27 1999 "unless
otherwIse IndIcated." No one contends that the effectIve date of the Letter of UnderstandIng IS
March 27 1999 Instead, the Employer argues that the date of January 1 1999 IS "otherwIse
IndIcated" Consequently despIte the words "current salary" In the Letter of UnderstandIng, It IS
not at all clear that the partIes' meant "current salary" as of June 25 1999 - although that It
certaInly one possIbIlIty
Another possIbIlIty IS that the words "current salary" means the employees' salary at the
tIme of the changeover to the new system When one consIders what the partIes were dOIng -
creatIng a new class standard and pay framework - wIth a new sIgmficantly hIgher mImmum
and maXImum, It makes sense to compare, based on the employees' salary under the old system,
where the IndIVIdual would land on the new system, for ImtIal placement. That IS what the
Employer dId.
In my VIew moreover the Umon's posItIOn IS not consIstent In relatIOn to the 1 % general
wage Increase The Umon seeks to have the 1 % Increase count towards the employees' "current
salary" for placement on the new salary range but not apply It to the range Itself It asserts that
the 1 % IS added later prospectIvely for future collectIve bargaInIng purposes I cannot agree If
the 1 % IS added to the gnevors' salary for placement purposes, but not for determInIng
placement on the salary range, the salary range should also be adJusted by the 1 % so that both
are" current" as of June 25 1999 I see no basIs to Include It for one purpose but not the other
8
The agreement states "The 1999 general wage Increase wIll be applIed to the above ranges" It
seems selectIve to Include It for calculatIng the employees' "current salary" for placement
purposes, but not to adJust the range In my VIew absent some clearer IndIcatIOn of that selectIve
Intent, If It IS used for one purpose, It must be used for the other as well
I agree, as the Umon contends, that the agreement dId not provIde for a new salary range
of $1010 to $1169 58 The "new range" IS $1000 to $1158 But I do not agree that the language
companng the employees' "current salary" or" eXIstIng rate of pay" to the "new range" means
that you Include the 1 % general Increase and any Intenm ment Increases to determIne placement
but not Include the Increase for determInIng the new range Although that IS one possible
InterpretatIOn, I am not persuaded that IS what the partIes' meant.
In contrast, the Employer's treatment of the 1 % IS Internally consIstent. It dId not Include
It eIther In calculatIng the employees' salary or the salary range for placement purposes Rather
It compared the employees' "current salary" and "exIstIng rate of pay" under the old system to
the new mImmum and maXImum, and once placement was determIned, ImmedIately adJusted the
salary ranges by 1 %
The new salary schedule contaIned In the collectIve agreement comports WIth the
Employer's approach. It first lIsts the salary schedule "pre 1999 1 %" lIstIng $1000 as the
mImmum and $1158 as the maXImum. It also Includes five steps In the progresSIOn. These
amounts were then used to determIne employees' placement In the new progressIOn, wIth the
actual salary to be paid Increased by the 1% salary adJustment to the range effectIve January 1
1999 The steps, and range, are then Increased by 1 35% on January 1 2000 and by 1 95% on
January 1 2001
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The Employer's approach, as the Umon contends, does lead to salary compreSSIOn among
employees wIth dIfferent semonty The Umon submIts that It IS IllogIcal to pay expenenced
people the same as Jumor ones GIven the scope of the compreSSIOn, however It must be taken as
antIcIpated by the partIes LookIng at a number of the other groups Impacted by the Letter of
UnderstandIng, the agreement led to sIgmficant wage compreSSIOn among employees wIth
dIfferent semonty dates For example, all of the approxImately 195 EnvIronmental Officer 4's,
at any of the five levels pre-1999 earned under the $1000 new mImmum Consequently all of
them - regardless of theIr semonty - would be makIng the exact same amount on January 1
1999 under the new system. All of them would be paid at the new mImmum. SImIlarly all of the
OccupatIOnal Health and Safety Inspectors would be placed at the new mImmum, regardless of
theIr semonty ThIS also IS true for employees placed In the "hIghest salary range" Employees
In four of the five salary steps for EnvIronmental Officer 5' s would be placed at the new
mImmum of that group ThIS salary compreSSIOn among employees wIth dIfferent semonty had
to have been antIcIpated by the partIes Clearly that was a trade-off for mOVIng the employees
Into a new substantIally hIgher wage progressIOn.
In contrast, the Letter of UnderstandIng In regard to tax audItors provIdes for stated
percentage Increases, and states that "[s]teps wIll move by the same percentages, and employees
wIll remaIn at theIr current step " Thus, In relatIOn to the Tax AudItors, the partIes prevented
wage compreSSIOn by maIntaInIng them at theIr "current step" They dId not sImIlarly provIde
thIS for "Inspectors/investIgators" Consequently the fact that the Employer's approach leads
more semor ESA 2's to earn the same amount as more Jumor ESA 2's IS not a basIs to conclude
that the Employer vIOlated the Letter of UnderstandIng. Such wage compreSSIOn among
employees wIth varyIng semonty was clearly antIcIpated by thIS agreement.
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I also conclude that the employees dId not suffer a "wage decrease" as a result of the
Employer's approach. All of the employees were provIded wIth a wage Increase
It appears that only a small group of the ESA 2's IS adversely Impacted by the
Employer's approach. Only employees at the fifth step of the former ESA 2 wage progressIOn,
earmng $991 67 moved to above $1000 - the new mImmum - because of the 1% general wage
Increase effectIve January 1 1999 These same employees had been adversely Impacted by the
SocIal Contract Act. TheIr frustratIOn at makIng the same amount as sIgmficantly less semor
employees and not mOVIng hIgher up on the new salary progressIOn IS understandable But what
IS at Issue In thIS case IS a legal Issue - whether the Employer vIOlated the Letter of
UnderstandIng. Although the Umon's InterpretatIOn regardIng placement IS possIble I find, on
the balance of probabIlItIes, that the Employer dId not vIOlate the Letter of UnderstandIng. I
conclude on the balance of probabIlItIes, that the Employer properly compared the employees'
"current salary" under the old system to the negotIated new salary range, then applIed the 1%
Increase
Conclusion
AccordIngly for the above reasons, I conclude that the Employer dId not vIOlate the
Letter of UnderstandIng and the gnevances must therefore be dIsmIssed. Based on the eVIdence
presented, the only possIble exceptIOn may be Mr DePhrofetIs, who had an anmversary date on
March 17 1999 The record IS a bIt unclear regardIng what he was paid. In my VIew for the
penod of January 1 1999 to March 17 1999 he should have been paid at the $1010 per week
rate On March 17 1999 however he had an anmversary date and ment Increase to the next
level That should have placed hIm at $1050 11 as of that date If thIS was how he was paid, that
11
was proper If not, It should be corrected by the Employer I wIll remaIn seIzed should there be
any sImIlar ImplementatIOn Issues
Issued at Toronto thIS 8th day of March, 2005