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HomeMy WebLinkAbout1990-2181.Union.93-02-25 Decision 1111 ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L'ONTARIO GRIEVANCE SETTLEMENT BOARD CpMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G IZ8 BETWEEN BEFORE FOR THE GRIEVOR FOR THE RESPONDENT HEARING TELEPHONE/TELEPHONE (~76) ]26-' ]88 FACSiMILEITELECOPIE (..1. !6) 326-1396 2181/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer A. Barrett P. Klym J. Campbell Vice-Chairperson Member Member G. Leeb Grievance Officer Ontario Public Service Employees Union w. Kenny Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors October 30, 1992 D E CIS ION This grievance concerns the interpretation of a Memorandum of Settlement reached by the parties in response to a grievance dated October 30, 1990. The grievance was framed as follows: "The Union grieves that the Ministry is improperly treating a number of year round positions as seasonal positions". After much negotiation during the grievance process, the parties settled the grievance and asked that the settlement be made an order of this Board, which it was. The Memorandum of Settlement is set out below: " MEMORANDUM OF SETTLEMENT BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION ('THE UNION') AND: CROWN IN RIGHT OF ONTARIO - MINISTRY OF NATURAL RESOURCES ('THE MINISTRY' ) RE: UNION GRIEVANCE - GSB #2181/90 In full and final settlement of the above-captioned grievance, the parties agree as follows: 1. The Ministry shall identify to the Union all Group 3 positions of at least 43 week duration and shall also identify any and all current incumbents. 2. The Ministry shall appoint all of the current incumbents of positions of 43 weeks or longer duration, provided they have completed at least two seasons of employment as a seasonal unclassified employee, or have been incumbent in the position for the last 52 weeks of active employment, to the classified civil service effective the date of this settlement. 3. The Ministry shall calculate each incumbent's length of continuous service as a classified civil servant by crediting 2 each incumbent with seniority accumulated under article 3.20.1 of the collective agreement, to be pro-rated as calendar rather than hourly service, thus providing a calendar date of continuous service, based upon hours per day on the appropriate schedule. 4. The Ministry shall, upon having implemented paragraphs 2 and 3 above, apply article 24 of the collective agreement to all incumbents identified under paragraph 2 and these incumbents shall also have the benefit of the job security guarantees provided by the Ministry pursuant to the Deputy Minister's bulletin dated May 21, 1991. 5. The Ministry agrees that positions identified as 43 weeks or longer, but which have no incumbent who shall be appointed to the civil service pursuant to paragraph 2, shall be posted in accordance with article 4 of the collective agreement or staffed in accordance with other procedures agreed to by the parties or deleted. Posted positions will contain an area of search allowing applications only from current classified and unclassified staff within the Ministry. 6. The Ministry and the Union agree to appoint an equal number of representatives to a joint committee to resolve anomalies flowing from this settlement where the duration of the position or tenure of the incumbent is unclear or in dispute. The parties further agree that there shall be full disclosure of all relevant information to facilitate this committee's operation. 7. Any dispute that is not resolved by the joint committee under paragraph 6, above, may be advanced by the Union directly to step 3 of the grievance procedure as a means of speeding resolution. 8. The Ministry agrees that seasonal unclassified positions shall not be of 43 weeks or more duration followed by nine or less weeks inactive employment in any twelve-month period. The Union agrees that the positions below 43 weeks per year are properly characterized as seasonal in nature. 9. In the event that the Ministry does not adhere to paragraph 8 above, the provisions of this settlement shall apply. However the parties may agree mutually to alternative remedies. 10. The Ministry and the Union agree that this settlement shall be communicated to Ministry staff by way of simultaneous communications. 11. This settlement shall be made an order of the Grievance Settlement Board after the issuance of the communications in paragraph 10 above. 3 12. The grievance is withdrawn. Dated at Toronto this 13th day of June, 1991." Both parties agree that we have jurisdiction to interpret this Memorandum of Settlement. A great number of individual cases were covered by this settlement which resolved a long-standing dispute between the parties about the recurring use of seasonal employees to fill what were allegedly full- time positions. The settlement resulted in the roll-over of more than 900 seasonal employees into the classified service. The joint labour- management committee then considered informal appeals from many other employees and approximately 100 more were rolled over into the classified service. There are still 411 claims outstanding which the union has categorized into groups based on employment profiles and histories. The parties have not agreed on the precise make-up of anyone group, nor therefore have the individual grievors agreed to be bound by the decision on the policy grievance. It is agreed that we remain seized of all 411 individual cases covered by the union policy grievance, but not the individual grievances themselves, which have been adjourned sine die awaiting the outcome of the policy grievance. We received agreed- upon evidence relating to two groups of employees and have been asked to rule upon the effect of the Memorandum of Settlement on their cases, before proceeding with further groups or individuals. It is hoped that the parties will be able to settle most or all of the outstanding grievances subsequent to this interim decision. 4 The parties agreed at the outset of the hearing that one employee, Irene Wehrstedt, should be rolled over into the classified service. The issue in dispute centres on the interpretation of paragraph 2 of the Memorandum of Settlement, wherein "all of the current incumbents of positions of 43 weeks or longer duration" are to be appointed to the classified service provided they have passed one of the probationary periods stipulated in the collective agreement. The union says this provision requires the Ministry to rollover into the classified service any incumbent of a seasonal position as of June 13, 1991, who had occupied a position for 43 weeks or longer in the 52-week period which included June, 13, 1991. The Ministry says that the 43-week period must comprise consecutive weeks encompassing June 13, 1991. Counsel argues that the definition of Group 3 positions as set out in Regulation 977 to the Public Service Act requires seasonal positions to consist of consecutive weeks. The Regulation describes Group 3 employees as follows: "Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36 1/4 hours per week or 40 hours per week". The employer says paragraph 1 of the Memorandum of Settlement sets out the parameters for the Group 3 positions that were turned into classified positions. The positions must have endured for 43 consecutive weeks encompassing June 13, 1991. It is only after the 43-week 5 positions have been identified that one turns to remedies for the incumbents of those positions in paragraph 2. In identifying a Group 3 position, one is required to look at the number of consecutive weeks of work. Therefore, employees who have worked on seasonal contracts in the same position for 43 weeks out of the immediately preceding 52 weeks but who experienced any break in service do not qualify for a roll-over pursuant to the Memorandum of Settlement. The employer concedes that paragraph 8 of the Memorandum would provide that in future (that is, after June 13, 1991), the consecutive nature of the 43-week position is not necessary and that a position working 43 weeks out of 52, even with short breaks of nine weeks or less, should become a classified position. However, says the employer, paragraph 8 speaks to the future, while paragraph 2 deals with current incumbents and treats them differently. We have difficulty accepting a construction of the Memorandum of Settlement which would give superior benefits to "future" grievors than to the people who were affected by the settlement at the time the grievance arose and was settled. We do not think that the use of the word "consecutive" in the definition of Group 3 employees is dispositive of the issue. Eight consecutive weeks' work is a minimum pre-condition for a valid seasonal contract. A person could work under as many as five or six valid seasonal contracts in any given year, with just a few days or weeks off between contracts, and still be considered a seasonal employee for the purposes of Regulation 977. It was this practice that led to the'original grievance. 6 In framing their settlement the parties obviously agreed that a position which was filled 43 weeks a year should really be categorized as a full-time position rather than a seasonal position. To this extent the parties agreed upon an operational interpretation of Regulation 977 which is not mandated in the wording. It is clear from paragraph 8 of the Memorandum of Settlement that the 43-week period chosen by the parties is to be placed in the context of a 52-week period. Why then would the same 43-week period not be placed in the same context for the purposes of paragraph 2? We also note that the "consecutive weeks" mandated in Regulation 977 refer to a minimum term for appointments of employees. The phrase does not relate to the duration of the position which must only be "annually recurring". Thus when the parties agreed in paragraph 1 of their Memorandum to identify "all Group 3 positions of at least 43 week duration", they were agreeing to identify annually recurring positions that lasted 43 weeks annually. Then in paragraph 2 the parties agreed that current incumbents of a 43 out of 52-week position should be rolled over into the classified service if they have passed their probationary period. We infer from the context that the current incumbent himself or herself must have held the 43-week position throughout its duration in order to qualify for a roll- over. This is not specifically spelled out in paragraph 2, but we infer it from the purpose and intent of the Memorandum which is to give classified status to employees who have been working virtually full time for the past year in an annually recurring job. Paragraph 5 lends 7 strength to this interpretation because it deals with 43-week positions whose incumbents have not passed probation and cannot therefore be rolled over. Those positions must be posted. Similarly, it is conceivable that an annually recurring 43-week position may have been filled by several incumbents during the year preceding the settlement. It could not have been the intent of the parties that the short-term incumbent who happened to be filling the position on June 13, 1991, would be rolled over even though he or she had only held the position for a few weeks that year, although having previously passed probation. Neither counsel at the hearing took that position. Thus we conclude that a fair and reasonable interpretation of the Memorandum, in accordance with its purpose and intent, is to provide that all incumbents of a 43 out of 52-week position, who alone have held the position during the year preceding or encompassing the settlement, should have the benefit of paragraph 2 of the Memorandum. The first group of employees, as characterized by the union in three specific example cases of Charbonneau, Gabrie and Klatt, should be rolled over into the classified service pursuant to the interpretation we have given the Memorandum. They had all passed probation. They all held the same position for at least 43 of the preceding 52-week period under a group 3 contract, although there was a break or breaks in their service which meant the 43 weeks were not consecutive. 8 The second group of 1 emp oyees, as characterized by the un' . three ' f ' lon ln specl lC example cases of Benner Hibbard d , an Dubosq, worked 43 or more weeks ' th . , ln e lmmedlately preceding 52 k wee s on group 3 contracts, but not in the same position throughout. For instance, one employee worked as a park 'warden part of the conservation officer for another part of the the word "position" ln the Memorandum of Settlement should be interpreted broadly to mean "work", and should not be restricted to a year, and a deputy year. The union argues that specific job title. The union cites Furniss, for the proposition that a "position" is not GSB #602/86, as authority necessarily equivalent to a job title. Employer counsel also relies on Furniss which further elucidates that the term "position" relates to the substance of the job and the nature of the duties performed. If they are sufficiently similar to another job they may well be considered the same position. Furniss does not help the members of group 2 in the union's examples. The different positions held by these employees were quite different in substance and in fact. The positions not only had different job titles but different job descriptions and duties as well. We cannot conclude that the use of the word "position" in the Memorandum of Settlement was meant to include anything other than a single defined job. Referring again to the purpose and intent of the settlement, it was intended to cover situations where certain positions were called seasonal, but in fact were virtually full-time. It was not intended to group truly seasonal jobs together to make one whole job just because certain people could fill more than one position in sequence. Accordingly the group 2 example of the union is not covered by paragraph 9 2 of the Memorandum of Settlement. We say this with the reservation that the case of Dubosq appears more readily to fall into group 1 than group 2. We did not hear full argument on that issue so decline to make an award directly related to Mr. Dubosq. If in light of this decision the parties are unable to resolve that case, we will hear argument on it when we re-convene for the continuation of the hearing, as previously scheduled. Dated at Toronto this 25th day of February 1993. ~~5F A. Barrett, Vice-Chairperson "7---' elL ~l~ P. Klym, Member / \ L' ~~U{