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HomeMy WebLinkAbout1999-2115.Hannah.02-08-14 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#2115/99 UNION#OOD 178 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Hannah) Grievor -and- The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Dan Hams Vice-Chair FOR THE UNION RobIn Gordon Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER MeredIth Brown Counsel Management Board Secretanat HEARING July 31 2002 2 DECISION The Proceedings In thIS matter the Umon gneves on behalf of Tim Hannah. Mr Hannah IS a CorrectIOnal Officer who successfully bId on a J ob postIng for the posItIOn of Dnver ExamIner wIth the Mimstry of TransportatIOn. The Dnver ExamIner posItIOn has a top step wage of $755 13 per week, more than $100 00 per week less than Mr Hannah earned as a CorrectIOnal Officer The Umon says that Mr Hannah should have contInued to be paid at the CorrectIOnal Officer rate whIle he worked as a Dnver ExamIner by vIrtue of ArtIcle 8 3 of the collectIve agreement. The Mimstry said It IS absurd to apply the wage protectIOn scheme of ArtIcle 8 3 to an employee who voluntanly applIes for and IS thereby temporanly assIgned to a lower rated posItIOn. The Facts The partIes submItted the folloWIng Agreed Statement of Pact 1 Tim Hannah IS a full tIme classIfied CorrectIOnal Officer 2 at Millbrook CorrectIOnal Centre 2 The Mimstn of TransportatIOn posted competItIOn MTSR/99-06T on October 20 1999 for 9 temporan Dnver Exammer pOSItIOns, vanous locatIOns, each 18 months duratIOn. 3 Mr Hannah submItted hIS apphcatIOn for the Dnver Exammer pOSItIOn b, fax November 2, 1999 4 Mr Hannah was awarded the pOSItIOn, confirmed b, letter from the Mimstn of TransportatIOn dated December 29 1999 5 Mr Hannah worked as a Dnver Exammer from Januan 10 2000 to March 27 2000 3 6 For the penod he worked as a Dnver Exammer the Mimstn of TransportatIOn paId Mr Hannah $755 13 per week, the top step of the Dnver Exammer classificatIOn. 7 The salan m Mr Hannah's home pOSItIOn, the top step of the CorrectIOnal Officer 2 classIficatIOn, for the same penod was $21 89 per hour (x 40 hour week = $87560 per week) 8 For the penod he worked as a Dnver Exammer work was reasonabh avaIlable for Mr Hannah m hIS home pOSItIOn of CorrectIOnal Officer 2 9 Mr Hannah filed agnevance Februan 16 2000 The Submissions of the Parties The Umon submItted that ArtIcle 8 3 IS clear on ItS face The artIcle contaInS four precondItIOns to tngger ItS applIcatIOn. One must be an employee, who IS temporanly assIgned, In a classificatIOn WIth a lower maXImum salary when there IS work avaIlable In the pOSItIOn from whIch the employee was assIgned. If those condItIOns are met, the Employer IS oblIged to pay the employee the rate applIcable to the classificatIOn from whIch he or she was assIgned. The Umon Said that ArtIcle 8 does not dIStIngUISh between temporary aSSIgnments made dIrectly by the Employer or those made as the result of a Job competItIOn. AccordIngly ArtIcle 8 3 ought to apply to the gnevor The Umon also revIewed the proVISIOns of ArtIcle 7 the general Pay AdmInIstratIOn proVISIOns, to lIke effect. The Employer submItted that the rules of constructIOn provIde that the IntentIOn of the partIes IS to be determIned by the language chosen to express that IntentIOn. However when the language leads to an absurd result, It cannot be that the partIes Intended such absurdIty In the current context, It IS absurd that an employee could voluntanly apply for a posted pOSItIOn at a lower pay rate WIn the competItIOn and have theIr hIgher home 4 posItIOn rate maIntaIned. It was submItted that ArtIcle 8 3 IS meant to protect the wage rate of an employee who IS reqUIred by the Employer to perform lower-rated work, when work IS avaIlable for that employee In theIr home posItIOn. The Employer urged the Board to take a purpOSIve approach and determIne the meamng of ArtIcle 8 3 In the context of the entIre collectIve agreement, IncludIng ArtIcles 7 and 24 The Employer relIed on the folloWIng authontIes Massey-Harris-Ferguson and UAW(l955) 5 L.AC 2123 (MacRae) Belleville Police Services Board and Belleville Police Association (2000),91 LAC (4th) 99 (Goodfellow) Weyerhauser Chapleau and I WA. - Canada (2001),98 L AC (4th) 150 (Tacon) In reply the Umon submItted that a plaIn readIng of ArtIcle 8 3 dId not lead to an absurd result In these CIrcumstances When the Employer chooses to fill a vacancy temporanly and an employee chooses to apply the partIes have agreed that theIr wage rate wIll be protected. It was said that there IS a mutual benefit In havIng employees broaden theIr expenence Further even If the result mIght be seen as IneqUItable for the Employer that IS not the same as absurdIty There IS no ambIgUIty In the language and It ought to be applIed. The Umon relIed on OPSEU (Ireson) andMinistlY of Attorney General GSB 69/05 (Gray) Reasons for Decision ArtIcle 8 3 reads as follows When an employee IS temporanh assIgned to the dutIes and responsibIhtIes of a posItIOn m a classificatIOn wIth a lower maXImum salan where there IS work reasonabh avaIlable for hIm or her m the posItIOn from whIch he or she was assIgned, he or she shall contmue to be paId at the rate apphcable to the classificatIOn from whIch he or she was assIgned. 5 It IS well establIshed that the IntentIOn of partIes to a collectIve agreement, or other wntten contract, IS to be ascertaIned from the words In the wntten agreement. It IS also well establIshed that the words of the agreement are to be taken In the context of the provIsIOn at Issue and the agreement as a whole In the exerCIse of the latter consIderatIOn, one may look to the purpose of the provIsIOn at Issue Here the partIes are essentIally agreed that the purpose of ArtIcle 8 IS to provIde a means of ascertaInIng the wages to be paid to an employee who IS temporanly assIgned to perform the dutIes of a posItIOn that IS not theIr home posItIOn. The Issue that IS JOIned In thIS matter IS whether the temporary assIgnments covered by ArtIcle 8 Include the performance of the dutIes of a posItIOn whIch the employee has sought out and been awarded by way of a J ob competItIOn. FIrst, readIng ArtIcle 8 3 on ItS own leads me to the conclusIOn that the gnevor does not meet all of ItS reqUIrements In order to contInue to be paid as a CorrectIOnal Officer there must be "work reasonably avaIlable for hIm In the posItIOnfi'om yt,hich he yt,as assigned" AgaIn, the preserved wage rate IS the "rate applIcable to the classIficatIOn fi'om yt,hich he yt,as assigned" The gnevor was not assIgned from the classIficatIOn of CorrectIOnal Officer to the posItIOn of dnver-examIner He took a temporary assIgnment. There IS an actIve, two-step component to the meamng of "assIgned" that anses from the very language of ArtIcle 8 3 The actIve component IS the Employer assIgmng an employee from one posItIOn to another Here, the Employer has permItted the employee to leave the CorrectIOnal Officer posItIOn to take the Dnver ExamIner posItIOn. That IS not an assIgnment "from" one posItIOn "to" another The gnevor certaInly was 6 temporanly assIgned "to" the Dnver ExamIner posItIOn, but he was not assIgned "from" the CorrectIOnal Officer posItIOn. He was permItted to take hIS leave Second, the plaIn meanIng I take from the words of ArtIcle 8 IS entIrely consIstent WIth, and supported by the context of ArtIcle 8 and other provIsIOns of the collectIve agreement. Taken as a whole, ArtIcle 8 lays out a scheme for determInIng the applIcable wage rates when an employee IS assIgned to perform, on a temporary basIs, the dutIes and responsIbIlItIes of a posItIOn other than theIr own. Each of the paragraphs of ArtIcle 8 carnes expressly or by ImplIcatIOn the notIOn of the assIgnment beIng from one posItIOn to another that IS, an actIve InterventIOn by management that IS outsIde of the Job competItIOn process Indeed, ArtIcle 8 6 1 buttresses that meanIng by settIng out when ArtIcle 6 the Job postIng provIsIOns, must be followed. ArtIcle 8 6 1 puts lImIts on the Employer's nght to make the dIrect assIgnments that are the subject matter of ArtIcle 8 as a whole TurnIng to ArtIcle 6 It IS an express lImItatIOn on the Employer's nght to make dIrect assIgnments and IS InstructIve as to what the partIes Intended when they use the word "assIgn" ArtIcles 6 6 1 and 6 6 2 provIde for permanent "assIgnments" to posItIOns, rather than postIng to posItIOns They read as follows 66 1 With the agreement ofthe Umon, the employee and the Employer an employee ma, be assIgned to a vacanc, where (a) the vacant posItIOn IS IdentIcal to the posItIOn occupIed b, the employee and (b) the vacant pOSItIOn IS m the same mmIstn as the pOSItIOn occupIed b, the employee and the proVISIOns of ArtIcles 6 1 6.2, 6.3 6 4 and 6.5 shall not apph 7 66.2 The assIgnment of an employee to a vacanc, m accordance WIth ArtIcles 7 (Pa, AdmmIstratlOn) 20 (Employment StabIht,) 25 (Leave - SpeCIal) 42 (Long Term Income ProtectIOn) 50 (Pregnanc, Leave) and 51 (Parental Leave) shall have pnonn over an assIgnment under ArtIcle 6 6 1 AccordIngly "assIgnments" are exceptIOns to Job postIngs ArtIcle 6 6 2 sets out examples In the collectIve agreement of permanent assIgnments, all of whIch are exceptIOns to the reqUIrement to post the Job ArtIcle 7 provIdes for the wages to be paid In such permanent assIgnments, whIle ArtIcle 8 does the same for temporary assIgnments Those "assIgnments" are dIrect assIgnments by the Employer outsIde of the Job postIng process Here, the Gnevor posted to the Job He was not "assIgned" as that term IS understood between the partIes FInally when one posts to aJob one posts to all of ItS terms and condItIOns IncludIng the rate of pay negotIated by the Umon for that posItIOn. ArtIcle 8 was not Intended to cover CIrcumstances such as those before the Board In thIS matter The Decision The gnevance IS demed. DATED AT TORONTO thIS 14th day of August, 2002 , :\ ,.. ''I Damel A. Hams, Vice Chair