HomeMy WebLinkAbout1977-0001.Union.77-08-30~“)’ .GR~EVANCE SETTLEMENT
&OARlJ ., ,a’:
.~..~ : .s 77 BZoor Street
TORONTO, Omkzrit
.’ ‘/VI MSS lM2
<IN THE MATTER OFAN ARBITRATION"‘ . . ._ -
Under The
.:, i
,-: CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
_.
.;,..
For the Employer:. 2 ,~ ,. _
'~ Mr. W. J;Gorchinsky, Senior Staff
Relations Officer, Staff Relations Branch
Civil Service ,Commission ', &
Hearing: ,.
January 25, 1977
Suite 405, 77 Bloor Street West
',, Toronto,.Ontario
,:. -? Before
THE GRIEVANCE SETTLEMENT .BOARD
I ' ~..'. i,; ,I t;,.
. . ..~
Between: -' t ...~~
Ontario Public Service Employees Union 2,.
._ \ And I_ ,. .'
Ministry of the Attorney General
' . (Fitzsimmotis and Vice)
Before: - ,'k:P. ‘Swan i.ha,i'man' .
J. W. Henley Member
,. .H: E. Weisbach Member
_, '. '. ,.,I :..
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' Fork the Grievor:
.,.
,Mr: Geor&‘Richards' ' :'
0ntario:Public Service Employees Union
i
The present grievance involves an intricate problem
in the interpretation of contractual and statutory language,
and requires careful consideration of various provisions of
the Public Service Act, R.S.O. 1970, c.386, as amended; the
Crown Employees Collective Bargaining Act, S.O. 1972, c.67.
as amended; and the Working Conditions Collective Agreement
binding the parties.
Mr. R. Fitrsimnons and Mr. A. Vice hold the position
of Relief Clerk 3 in the Ministry of the Attorney General;
both are employed in the Defaulted Fines Control Centre
2.
and are engaged 4n the administration of certain sections
of.the Highway Trafffc Act. The precise employment status
of these individuals has been the subject of some dispute
between the parties, and the matter was at one time referred
to the Ontario Public Servjce Labour Relations Tribunal for
determination pursuant to s.38(1) of the Crown Employees
Collective Baigaininq Act. That matter was settled between
! the parties by a letter dated November 2. 1976 from J. R. Scott,
the Executive Director of Staff Relations for the employer, to
the Registrar of the Tribunal (Exhibit 3). The material parts
of that letter are as follows:
The per8On8 in @~?8ti‘7l, &. R. Fit&8*mmns cmd
bfr. A. vice, m-8 pubziC 8e!W.mt8 appointed to Group .I
Of the WU?k88ifi8d 8eIVice pIUWI&mt to SeCfZbI 8
of the public Service Act and me emptoyed by the
h?i7,‘,8tZ’9 of the Attorney Ge?IeI%Z. a
It is the hnpZoyer’8 position that these persons
are, indeed, empZoyee8 for the purpose of the CI+JLVI
B?pl.oyeea ColZective Bargaining Act, Section l(l)(g).
Further, these employeee me included in
the public,
Service Bargaining Unit (defined in section I1 of the
3.
Re$ations zmder,:the C;E.C;B.‘A. I and are
subject to applicable 8eCtia8 Of the agreement
a.Working Coiz&tions. Therefore, a hearing
to detezwtine whether ,these.‘persons are emptoyees
for the purpose of the Crown Dnployees ColZective ‘I Bargaining Act,,fSection 36(1,II would aem to be
~ lUl?l8C888clPy.- . .
ShouZd the COnRnent8 raitied in,the Union's
letter to the l+ibunaZ relate to the manner in
which .the ‘agreement on Working Condition8 ha8
. 1 been applied tc~these employees, we believe the
” correct fonrm-for resolution to be the Grievazce
Settlement Board, in accordance with Section 1811)
of the-crown EmpZoyee8 CoZZective Eurgaining Act
_ and the rezeiht provistiras of the agreement on
I Wqrk<v Condi$ioy, inazuding Article 3 (Employees
Categories)“& Article 30 IGrXevanoe*Procedure).
As a consequence, the Union.filed the present grievance ( ,.
on November 8, .._ I 1976 (kxhjblt 1). As the grievance and *tie .L ^ .", I reply thereto cieer$ set out the .issue bepee?, the,parties, ~~." I. .,..
1 we reproduce them here for reference, insofar as they are _~ .
materlal. The grievan$e is: ', .~' !.
!Re Union herSby grieve8 the vioZ&ion of -. &use 2.1 of ‘the Working ConditiOne CoZlective
Agreement in that due8 have not been deducted
from the pq’ of Mee8$8.-R; Fitisimnons a?ad A.
Viae, Clerks 3, General in the Management Audit
i ,‘._
Branch of,. the Ministry..
. . r;
The unia .contends that ?he above-ncmred qtoyees _. .do not come within the awpe of ArticZe 3 of the
CoZZective Agreement, and.are therefore de facto
‘. ,. on th8 regdar staff of the Ministry. and a8 such
subject to dues check-off. . I .’
&e Vn&‘theref&e requests that dues check-off
of the above employees comnence &mnediateZy and
that they also be advised that they are subject to
‘all &her benefits ,inder the ,Working Condition8
CoZZective Agreeme+
.:
The reply (Exhibit 4) 4s in the following terms: ,/,- ,, ~.
The Union Griev&ce outzined in your Zetter
of November 6, ~1976, ha8 been considered and I
would advise that, in as much as Messrs. R.
Fitzsinnnons and A. Vice. ar8 e!Zoued under
4.
contract and have not .been appointed to the
Regular Staff of the Classified Civil Service,
we are not in viol&ion of CZuu8e 2.1 of Article 2
of the Working Comiitione Cotlective Agreement.
We would be pZeased, of cowBe, to deduct Union
due8 upon reaeipt of written authorization from
M888r8. Fitzeimms and Vice in accordance oith
Clause 3.4.4 of Article 3.
There ha8 not been any violation of the
CoZZective Agreement, inctuding Article 3, and
your grievance is, therefore, denied.
The statement quoted above from the employer's letter
to the Registrar of the Tribunal (Exhibit 3) was treated by
the parties as, in effect, an admission that the two individuals
concerned are indeed "employees" as that term is defined in s. l(l)(g)
of the Crown Employees Co<lectfve Bargaining Act, and that they
are therefore members of the Bargaining Unit and subject to the
Collective'Agreement. That agreement, however, makes certain
distinctions among employees in different circumstances. The
follOWing provisions are particularly relevant to this proceeding:
ARTICLE 2 - RECOGRITION
1 .I In accordance with the pmvi&one of Section 11
of the Regulation8 w&r !l’he Cram Dnployees
ColZective Bargaining Act, Ontario AcbZic Service
Employee8 hhn is recognized ae the exclueive
COzlectiVe bargaining agent for all pub%2 8enXZ?It8
other than pereon who are not employees within
the meaning of Clause g of~eubsectim 1 of Section 1
of The Crown EmpZoyees ColZective Eurgaining Act,
a22 a8 mre particularly set out in Schedule 1 c “. ‘: .
attached hereto.
ARTICLE 2 - CBECK-OFF OF UNION DUES
2.1 There 8haZZ be deducted from the regular bi-
weekty pay of every employee appointed to the
regular Stiff of the CivzZ Service on or after
October 26, 1969, a 8wn in lieu of membership
dues equivclent to the bi-weekty dues of the
Ontario PubZic Service Enployee8 Union.
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ARTICLE ~3,: EtG’LOYEB : CATEGORIES ‘ .r:, :
*i 3.1 Persons, 0theF thf&civiZ~ servants as defined
&I The PuElic~ Servicje Acti”who become employees
pumaimt to Sectioti.Ll(l)- (ql (vl of The Cram
‘. hhplo~eks ‘C6lJective B&g&ining Act, 1972 as ,. ciinended, .shull have’ their Working Condition8 . . ,_ arid term8 of ‘kinplo~t+nt a8 follqw: .a, .” .
1;~
3.3.1 Category B. .’
‘% :
,’ +.” Th&’ &&A;;’ who wor$ more than
thirteen ,(13i .hours per week.
,-
tie equivalent civil. service classification
:rate on an hourly basis. If such rate is not I, . in ,fffec.t, .then the z&e is to be set by the
Minzstry involved and the Onion shall have the
right $o negotiate:the rate &.r,-ing @ appropriate _ .
salary negotiations.’
I.,’ 3,j*3 TX., * . _‘.a.
R01iaay8
2 :
&0&t& ti the hoti -i@guhly wrked by
the employee provi&ng that the employee haa
earned wage.3 for at Zea8t fifteen 1151 working
“days &ring the thirty’ (30) calmoh day8
imnediatsly pr&di* the holiday.
-\ 3.3.4 Vacation Pay ~.
Four percent (4%) of gross pay added
to the emp@gee ‘$ r+ilur pay.
3.3.5 Overtime
..;. Ok and hi&half (1%) times- the employee’8
baeic hourly rate’?& hokre performed in excess
of the employee’s tiegularly S&?eduled work week.
3.4.1 ~- Iti addition’ &,'the foregoing, then following
conditions shall ap$ly to both Category A and
Category B employees:
‘3.4.2 Employment may be terminated by the Employer
at any time with O&z (1) week's notice, or pay
in lieu thereof and the employee shall not have
.recourse to the grievance procedure, ticept in
rkpect to the-terms 2 to 5 as set out in each of
the separate. categories .liste& above.
5.
6.
3.4.3 Bnployment in either category shall not
be considered continuous service. An employee
in.either category who is appointed to the
probationary status of the Civil. Servioe shall
be considered to be a new employee. Provided
however, that if such a position becomes penmznent
then the .time the empkyee actually worked Shall
be deducted from the empbyee ‘s probationary
period, if the employee has worked within the year
prior to the appointment to probationary stuff.
3.4.4 Union dues shall not be’ deducted fmm
employees in either Category A or Category B
~72~8 such employee authorize8 the Ministry
involved in uriting, that he I&he8 to have ths
dues akluccions mde in accordance with Article 2
of the Collective Agreement.
The definition of "employee", upon which this
categorization of persons depends, is that of the Crown
Employees Collective Bargaining Act, s. l(1) (9):
"s?qloyee" man+ a Crown eqbyee as definsd in
The Publio Se&e Act but does not include,
(il a m0nber of the Onturio ProvincGil
Police ‘Fo+ce,
(ii) an employes of a college of ,applied arts
and. t8ch?lolQgy,
i (iii) a person employed in a manageriaZ or
confidential capacity,
(iv) a person who is a member of the architectural,
dental, engineering, legal or medical profes-
sion entitled to practise in On&&o and
employed in a professbnal capacity,
fV) a Student GTIpzOyed &Ping the 8timt'S
regular vacation period or on a co-operative
educational training program or a person not
ordinarily required to work more than one-third
of the normal period for persons performing
similar work except where the person uork8 on
a regu&zr and continuing basis,
(vi) a person engaged wzder contract in a profes-
sional or other special capacity, or for a project of a non-recurring kir*l, or on a teTormy work aseigment arrmtged by tire Civil Service
Connission in accorohme Lth its progm for
provil’,ng temyxmzq help,
' '~ - I&i) .a' person 'qgag,ed,%pnd employed OUtSide
omqio, : ' ,,
.._
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(viii) a person e;;ipt&ea Zn the office of the
(~'~ : Provir@al Auditor, br
'. (ixl a person *loyea by or under the lkibuna2
or the Grievance Se,ttlement Board; ',I. ,:. _ i
To complete this picture of the stptutory and
contractual framework underlying the employment status of
the .two employees ,concerned, it is necessary to-turn to the
Public Service Act. Several provisions of that statute
., are relgvant: ",
*2; In this Act, : '~:. . _'
,(a) "civil -sqxznt" meanw a person appointed
to the service of the Crown by. the
Lieutenant Governor in Cow~&l on the
certificate of the Conmrission or by the
Ccmmi8s~,~.anc~!'civil service" ha8 a
correspondmg meaning;
6) %lawwified service" ineunw the part of
the public-service to which civil servants
are appbinted;
(e.l 'Trown employwk~ meqw a person employed
in the service of the Crow or any agency
‘of the Gbmm, but&es notincluds an
employee of Ontario Eydrc dr thw Ontin
Northlund Transport&ion Comniwwion;
fg) 'public -servant" mgma a person appointed
wder this Act to the service of the Crown
by. the lieutenant Governor in Council, by
the Con@wa<on or ~by a minister, and "public
service" has a corresponding mennhg; ,.~ " :
-(il. -%xcZussified service" means the part of the
public serv-ice that is COrnpOSed of positionw
td which persons are.appointed by a minister
under this Act.
..
7.
8.
8. - (1) A minister or any public servant who is
designated in writing for the purpose by
him may appoint for a period of not more
than one year on the first appointment and
for any period on any subsequent appointment
a person to a position in the wacZussified
service in any Ministry over which he presides.
(2) Any appointment mad8 by a designee under
subsection 1 shall be deemed to have been
made by his minister.
9. A person who is appointed to a position in I
the public service for a specified period
ceases to be a public servant at the expiration
.of that period.
In addition, R.R.O. 1970, Reg. 749. as amended, passed
under the Public Service Act, also bears on this grievance:
5. - 111 The unclus‘eified service is divided into the
fO%Vi~ fJ.RTqS:
1. Group I, cmisting of empZoyees who are
employwd zmder ind&SuaZ contracts in
which the tens of employment are set out
qd who are emptoyea,
la) on a project of a non-recurring kind;
tb) in a professional or other wpeciul
cWty;
(cl on a tempormy oork assignment arranged
by the Comriswion in accordance WCth its
progmm for providing temporary help;
(a) for twenty-f0m ~OWW or less during
a week; or
(e) during their regular school, college ':
or university vacation period or
under a co-operative educational
trahing program.
2. Grou;, 2, con&sting of emplo_ueew employed
on a project of a seasonal or recurring
kind that does not require the employees
to be employed on a full-time, year rozmd
basis.
9.
4 .""T ,, '._,i
(2) Every person who is an employee in ,: ', the’iolclassified: wervick at the time
this section comes into force . .,\,, ,‘.. ,: .
(al shall be appointed to Group 1 <
, d _” ! or Group .2 of then waolaswified
service as determined by the .T _ ,. 1 tern8 bf emplo*ent specified
in paragraph 1 or 2 of subsection
.I; nor ‘-
i (b). SF&Z, if qualified; ‘be assigned
to a vacant position in ‘the classified
,~ ,, .: (‘. service..
k _
-'LThe‘?ssue.before us for determination is quite a
.;, ~';‘. *. simple one, although it involves the interpretation of the
ma&of provisions set out above. 'We are required only to
.' determine whether the Union is entitled.to a check-off of dues
.-
under Article 2.i ~of-the Working Conditions 'Agreement in respect
of Fitzsimnons and Vice; although the grievance also asks for
" notification to'the employees that "they are-subject to all "
'C - other benefits.underthe'Working Conditions Collective Agreement",
- then parties'did not present any specific'aigument in respect
of that issue. Moreover; we consider the protection of an.
., ”
-.individual'sright under the Agreement to be better enforced by
an individual grievance alleging a specific vioiation and, in
,the absence of any express difference; we would hesitate to
try to-present a compendious descrfption of the employment
: relationships of these two persons.
I.
The Union's position, reduced to its'simplest form, is
that the words l'every~dmbloyee aipbinted to the regular staff
of.'the Civil Service" in Article 2.1 of~theigreement are
sufficiently wide to cover Fitzsimmons and Vice; there is no
. .
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10.
doubt that the two were appointed subsequent to October 26,
1969. The employer's position is that the two employees are
Category B employees a; defined in Article 3.3.1 and that
they are thereforqcovered. in respect of's dues check-off,
by Article 3.4.4, which requires a written authorization.
For the purpose of our analysis, we shall begin with
the employer's submission. There is no question that
Fitrsimnons and Vice are "employees" as that word is used
in Article 1.1 and in the Crown Employees Collective Bargaining
Act, s.l(l)(g).. Their work week is 3& hours per week, and -
they must therefore be Category B employees if they are
covered by Article 3 at all. They are not~"civi1 servants
as defined in the Public Service Act". since they were
appointed by the designee of the Attorney General (see
Exhibit 2) and not "by the Lieutenant Governor in Council
on the certificate of the @vi1 Servica Consnfssfon" as
required by s. J(a) of that Act. It remains only to be
determined, therefore, whether they became employees "pursuant
to.Section l(l)(g)(v) of~the Crown Employees Collective
Bargaininq Act".
That provision Is a particularly convoluted one. The
basic principle of s. l(l)(g) is that anyone is an "employee"
who is a "Crown employee" as defined in the Public Service Act,
s. l(e); the parties are agreed that Fittsinmons and Vice fit
that definition. From that basic principle, s. l(l)(g) excludes
certain categories of persons. including, in s. l(l)(g)(v), “a
student" . .._ or a person not ordinarily required to work
,.
i .1
._
_’
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13.
We turn finallyto a consideration of Article 2.1. This
Article would provide'for a compulsorydues check-off only if
Fitzsirimons and Vice could 'be'said to be appointed to "the regular
staff of the Civil"Service". The words "civil service" are defined
in s. l(a) of the Public ~Service Act, and theparties have stipulated
that these persons‘do;)ot fit within the definition. Nevertheless,
the Union suggests that we should ignore the technical definitions "
set out in the legislation and use instead the ordinary meaning
of the words. In the Union's submission, any other approach would
lead to the result~that there.would be a category of employees not
covered by Article 2, and thus not eligible for dues check-off.
?.
In any other circumstances, we would be sympathetic to
the Union's submission. The general rule of collective agreement
interpretation is that the words used by the parties are to be taken
at,their ordinary meani,ng, ,and that, special or technical meanings ,
are to be ascribed only whe&clearly required. In ordinary.
parlance we have little doubt that the words "regular staff of
the Civil Service" might be considered to include Fitzsimmons and
Vice. In this case, however, we are unable'to accept this approach.
The present parties bargain collectively under a scheme
which is entirely statutory. The statutes have created a
professional public service, and have thus abrogated the Crown
prerogative to appoint and dismiss,Crown servants. The ~statutes
establish a status, standards of.appointment and tenure, and ~basic
terms and conditions of employment for Crown employees. In addition,
they establish a collective bargaining system with provisions which
bind the Crown and give the Union rights not available apart from
14.
statute. Central to the operation of the statutes are the definitions
of the categories of persons who are covered by them: "employees",
"Crown employees", "public servants" and "civil servants". All four
of these expressions, and their appropriate cognates, are used
throughout the Collective Agreement, and they are nowhere defined
therein. In these circumstances, we consider the inference compelling
that the words are intended to have specific and technical meanings,
so that they wtll properly relate the working conditions of employees'
to the statutory framework governing their employment. In
Article 2.1, the words "Civil Service" are capitalized, a form in
which they do not appear, for example, in Article 3.2.2. Nevertheless,
we are not persuaded by that simple fact that the parties thereby
intended the words to revert, as it were, to the public domain. On
balance, therefore, we find that Article 2.1 does not cover the
employment status of Fitzsimnons and Vice. and that no dues need be
deducted thereunder. It may be that Article 2.3 is wide enough to
cover a voluntary check-off in respect of these employees. but
that matter is not really before us.
In the result, the grievance is dismissed. Although we
have determined, in coming to this conclusion, that Fitzsimmons
and Vice are "employees", but are not covered by Article 3, we
wish to state expressly that our determination goes no further
than that. In particular, we do not wish to be considered to have
made any determination in respect of some of the consequences which
Mr. Richards asserted, at the hearing, would flow from such a result.
Such a determination will have to await a hearing in which it is
clearly required for a resolution of the matters there in issue.
Dated at Toronto this 30th day~of August 157 ‘7.
K. P Swan
Vicekhairman
.
I concur
J. W. Henley
Member
I concur
H. E. Weisbach
Member