HomeMy WebLinkAbout1976-0126.Krznaric.77-10-18; Ontario
CROWN EMPLOYEES 416 9644426 Suite 405
GRIEVANCE SETTLEMENT
BOAR0
77 moor street vest
TORON!TO, Ontario
MS.5 IMZ
IN THE,!#TTER OF AN ARBITRATION
Under The
CROWN EMPLOYEESCI:;ECTIVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
,
Between: Ms. Sharon Krznaric
And
Ministry of Correctional Services
Before: K. P. Swan
A. Fortier
I. K. Levack
Vice-Chairman
Member
Member
For the Grievor:
Mr. George Richards, !\epresentative
Ontario~Public Servic!: Employees Union
Toronto, Ontario
.,~: ,~ For the Employer:
' 1' Mr. W. Gorchinsky, Serfior Staff Relations Officer
Staff Relations Branclj
.T Civil Service Commiss.on
Hearing:
April 12th, 1977
Suite 405, 77 Bloor S-:. W.
Toronto, Ontario
This grievance presents a camp
agreement interpretation, related tc
if any, of settlements reached betwc
hearing, the Board requested writter
activity issue from the parties, ant
Gorchinsky kindly obliged us in this
express our thanksfor the thorough
set out in the written submissions.
jle x problem in collective
1 t he retroactive effect,
?t:n the parties. At the
I a rguments on the retro-
IM r. Richards and Mr.
; r equest. We wish to
En d most helpful analysis
Ms. Sharon Krznaric, the grieb cc r
Service Trainee B on August 18,'197E i a
annum ($210.81 per week) based on tl- IE
Policy developed by the Civil Servic :E
qualifications, which included the c leg
On October 1, 1975 then classif
Trainee B was abolished, and the gri
'~effective October 1 as a Probation C
$211.15 per week. This was the thir
in the collective agreement which h;
parties until its expiration date, t
'.1975 and which, by the provisions of
Bargaining Act, 5. 21(Z) "continueik
agreement entered into pursuant to t
in operation". This transfer was ac
accordance with the relevant policy,
Administration 9-30-l dated June 1,
'ic
!evs
)ff
d
IC
: e
: t
i
11
:he
I Ipa
,a
19
2.
, was hired as a Public
t a salary of Sll,OOO per
Graduate Staffing and Pay
Commission, and on her
ree of M.A. in Psychology.
ation of Public Service
or was reclassified
icer 1 at a salary of
step.in the P.O. 1 scale .-;,
been in effect between the
previous day, September 30,
he Crown Employees Collective'e
to operate until a new
provisions of this Act <was>
rently properly done in
document. entitled Pay
76 (Exhibit 6) which~ deals
3.
with promotion and requires that upon promotion an employee receives
"that rate of pay in the salary range of the new classification which
is the next higher to his present rate of pay", subject to certain
exceptions not here applied. Indeed, Mr. E. T. Cole, Senior Pay
Policy Officer of the Civil Service Commission, who appeared as a
witness for the employer, characterized the transaction as a
"promotion", although we think it would more properly be cal1ed.a
case of 'an employee occupying a position assigned to a clas-
sification which is deleted and subsequently aliocated to a new or
re-established classification having a higher maximum salary rate",
a case to which, by Policy g-30-2, the same rules apply.
Because of delays in the collective bargaining process, the
old agreement remained in operation by virtue of s. 21(Z) for a
long time. It was still in operation on March 1, 1976 when the
grievor became entitled to and was awarded a one-step merit
increase, which moved her to the fourth step .on the P.O. 1 scale,
$219.48 per week. On.August 13, 1976, after the parties had been
to arbitration to ,resolve the salary dispute for the Administrative
Services Category and after the award of the board of arbitration
had been amended by the Anti-Inflation Goard, new salary scales
were promulgated as a result of a final agreement of the parties.
A retroactivity provision (originally awarded by the board of
arbitration) was incorporated into the agreement. It provided,
insofar as persons in the P.O. 1 classification are concerned, that
"The increase in salary shall be retroactive to October 1, 1975".
At this time, the employer took the position that Ms.
4.
Krznaric's transfer to the P.O. 1 scale had been "a temporary
measure transacted for administrative reasons only" and that
"effective October 1, 1975, the proper salary range to transact
Probation Officer 1 salaries did not technically exist". Thus,
the Employer re-worked the calculations, and re-applied the
provisions of Policy 9-30-I to move the grievor from her salary.
of $210.81~per week on September 30, 1975 to $221.39, the
minimum for Probation Officer 1 on the scales set out in the
new collective agreement "since this {was) the rate she would
have gone to had the new salary rates been known at the time the
transaction originally occurred". (All quotations~ are from
Exhibit 4, a letter dated November 4, 1976 setting out the
employer's position as of that date).. The grievor once again
qualified for, and was awarded, a merit increase in September,
1976.
The Union claims that the grievor is entitled to be treated
as follows:. she was placed on the third step of the P.O. 1 scale
effective October 1, 1975, granted a one-step merit increase in
March, 1976 and a one-step increase in September, 1976. She is
~therefore entitled to be paid, the Union says, as of September, 1976,
at the fifth step of the P.O. 1 scale, at the rate set out in the ~
new collective agreement, and retroactive (at the applicable step)
to October 1, 1975,
The employer's argument is two-fold, and begins with a challenge
to our jurisdiction to hear this matter. The preliminary submission
5.
is that the merit system is a matter expressly made non-
bargainable under s.17(1) of the crown Employees collective
Bargaining Act, and it is therefore something which cannot be,
and is not, a part of the applicable collective agreement;
it therefore cannot fall within our jurisdiction under s.18
of the Act, and clearly does not.fal.1 under s.17(1). Mr.
Gorchinsky invited us at the hearing to dismiss the grievance
on this preliminary point without hearing the merits of the case,
but we declined, making instead the following oral interim
award:
We will proceed to hear the merits of the
present grievance. The problem is clearly
intertwined with the interpretation of the
retroactive effects of the collective
agreement and the application of the salary
administration policy. We clearly have
jurisdiction over the former, and we will
not be able finally to characterize the
dispute until we have heard the parties on
the merits.
We are once again invited,in the written argument, to dismiss
this grievance on the basis of the jurisdictional submissions. Once
again, with respect, we decline to do so. This dispute simply does
not hinge on salary administrative policy or on the application of
the merit principle. We agree that we cannot quarrel, given our
jurisdiction under ss.17 and 18 of the Act, with the provisions of
Policy 4-30-l. Nor can we, nor shall we attempt to determine
whether.the grievor was or was not entitled to merit increases at any
given time. On the other hand, however, the question of the specific
salary scales applicable under the collective agreement is very-much
?..-
6.
a matter for collective bargaining,'is decidedly a part of the
collective agreement, and is entirely within our purview. Since
the employer's position is basically that it moved the grievor,
in accordance with its otin incontestable procedures, onto the
appropriate (that is, the contractually binding) scale, we are
certainly clothed with jurisdiction to determine the validity
of that assertion insofar as it relates to the question of whether
a given scale was binding or not.
Briefly put, then, the issue before us is whether the grievor
ought to have been placed at the next highest step of the "old
scale" for the P.O. 1 classification (the scale in effect in the
agreement which expired September 30, 1975) or on the "new scale"
for that classification (the one finally resolved on P.ugust 13,
1976 and expressed to be retroactive to October 1, 1975). At
first glance, the employer's argument is a powerful one, and
appears to be logical and just. On closer examination, however,
it simply cannot prevail.
As both parties have noted in their written submissions,
the usual rule as to the effective date of a collective agreement
iS that Set OU'C in Re United Association of slumbers &.eipefitters,
LK~cal 593 2nd London LabOur B~led~ (1961). 11 L.A.C. 306 (Reville)
at p.309:
It is a well known principle of lw
that a contract or agreement speaks as of the
date of its execution unless the operation of
the agreement is deferred to a specific date
or‘ time set forth in the agreement-itself.
The same principle would a.pply where the operation is not deferred
7.
but is accelerated, as by a retroactivity clause. In other words,
in the absence of any retroactivity clause, the new collective
agreement would have been in effect from August 13, 1976 and
would have had no earlier effect whatsoever, despite the fact
that, but for s.21(2) of the Act, the old agreement had expired
the previous September 30. To what extent is that general .,
presumption altered.by the retroactivity clause? The precise
words used in the agreement are:
The increase in salary shall be
retroactive to {October 1, 19751.
(emphasis added)
This is a very limited statement on its face, and it can
hardly be reasonably expected that the parties would have intended
it to be extended by inference so far as to encompass the employer's
assertion that, despite the plain words of s.21(2), no salary
scales "technically exist". Those scales certainly existed, and'
they were, by force of law, those of the expiring collective
agreement. The August 13 agreement had the effect merely of
adjusting, after the fact, the amount payable for hours worked.
The Union written argument exhaustively .views the arbitral
jurisprudence on retroactivity, for which we are very grateful
and. indebted. Although the temptation to incorporate all of.that.
learning on the subject~into thisaward is a strong one, we have
decided on reflection that one simple hypothetical example will
better serve to illustrate the flaw in the employer's position.
a.
consider the possibility that the arbitration board might
not have awarded a retroactivity clause. Although such clauses
normally are intended to benefit employees, the grievor would actually
be better off under the employer's interpretation if the clause had
never been included. The provisions of s.21(2) of the Act would
then have frozen the pay scales until August 13, 1976, and the
employer would have no scope to argue that there were technically
no scales in existence. The old scales would remain until August,
the grievor would then have been at the 'fourth level of the P.0. 1
classification, and would then have received the general increase.
We cannot believe that the board of arbitration or the parties
could have intended a result in which Ms. Krznaric would be better
off without retroactivity than with it.
In the result, we are of the view that the grievance succeeds.
The grievor is entitled to be paid on the following basis:
1. She was moved onto the P.O. 1 scale by the application
of Policy 9-30-l on October 1, 1975 at a time when the "old"
scales were in effect. Shewas then to be paid at $211.15
per week at that time, at the third step.
2. She received a merit increase in March which entitles her to the
fourth step.
3. She .is entitled to the‘general increase and retroactivity set
out in the agreement of August 13, 1976 as a person on the third
and fourth steps of the P.O. 1 scale at the relevant times.
4. Her salary thereafter is to be adjusted in accordance with merit
increases as awarded by the employer.
9.
For greater certainty, we note again that we do not question
the employer's application of Policy 9-30-I nor the correctness
of that policy, nor do we presume to question either the merit
system $or its application to Ms. Krznaric. We do, however,'
consider ourselves clothed with jurisdiction to determine the
effect of collective agreements on pay scales and to give a
remedy to a grievor who complains that the proper amount of
. salary is not being paid, based upon the collective agreement
and the result of the exercise of the management prerogative
(which may not be reviewed by us) to grant merit increases.
If we do not have at least that authority, the collective agreement
between the parties would be virtually useless.
We expect that the parties will be able to implement this
decision, but in the event that they experience difficulty, we
shall retain jurisdiction to resolve any problems which may arise.
Dated at Toronto this eighteenth day of October, 1977.
K. P. Swan
Vice-Chairman
I concur
A. Fortier
Member
I concur
I. K. Levack
Member