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HomeMy WebLinkAbout1979-0090.Bickerstaff.80-02-12Between: Before: For the Grievor: For the Employer: Hearina: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLFCTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. George.Bickerstaff Mr. Harold Turner (alternative) - and - The Crown in Right of Ontario Ministry of Government Services- :~ Professor K. Swinton ! Vice-Chairman Mr. G. Griffin - Member Mr. H.- Weisbach- - Member Mrs.- L; Stevens-l- .-- Grievance Officer Cntario Public Service Employees Union Mr. R. Shepherd Assistant Director Personnel Branch Ministry of Government Services December lOth, lg7g Toronto, Ontario ” ‘6 -2- This is a grievance in which George Bickerstaff and Harold Turner claim that the employer, the Ministry of Government Services, has incorrectly interpreted Article 14 of the Benefits Agreement (October 1, 1977 to.September 30, 1978 - Ex. l), with the result that they have received an incorrect amount as termination payment. Mr. Bickerstaff,a painter by.trade, was hired-by-the Ministry on June G, 1958 as a casual employee - that is, as part of the unclassified service. He worked continuously, with a few short, intermittent layoffs, until April 4, 1972. Mr. Turner, a Maintenance Carpenter, was hired on May 16, 1957 on contract in Group I of the unclassified service, and he worked on a series of person&l contracts .~. until March 31, 1972. During that period, the~.employees-were-not--~ entitled to bank attendance credits. In 1972, both men were offered positions in the classified service (Ex. 4), and they filled out applications. They were accepted ~. .~~~~ and joined the civil service in April, 1972. ,. _ The impetus for the change in status arose from a downturn in the construction industry. Prior to 1972, the government had employed skilled tradesmen like the grievors on contract, paying them premium rates above those paid to civil servants, in order to obtain skilled services. After 1972, there was no need for premium rates in order to obtain employees.' The grievors continued as members of the classified service until they retired in 1979, at which time a dispute arose as to the proper method for calculating termination pay. The outcome of their grievances depends upon the interpretation of two subsections of Article 14, which read as follows: ‘i F -3- 14.1 An employee who was appointed before the 1st day of January, 1970 and who ceases to be an employee is entitled to be paid an amount in respect of his accumulated attendance credit for continuous service up to and including the 31st day of March, 1978 in an amount computed by multiplying half of the number of days of his accumulated attendance credits at the date he ceases to be an employee by his annual salary at the date he ceases to be an employee and dividing the product by 261. For the period from.April 1, 1978, the benefits described under Article 14.4 shall apply. 14.3 An employee who is appointed on or after the 1st day of January, 1970 is entitled to severance pay for each year of continuous service up to and including the 31st day of march, 1978. (a) where the employee has completed one year of continuous service and ceases to be an emp{oyee because of, (i) death, (ii) retirement pursuant to, 1. section 17 of The Public Service Act, or 2. section 12 or 18 of The Public Service Superannuation A&,~ or. ~~~~ - ~~~ ~_~ - -~~~- _,l;~__ .~_.~ (iii) release from employment under subsection 4 of section 22 of The Public Service Act, in an anmunt equal to one week of salary for each year of , service; or (b) where the employee has completed five years of continuous service and ceases to be-an employee~for any reason other than, (i) dismissal for pause under section 22 of the Act, or (ii) abandonment of position under section 20.of the- -~ -------.- Act, -- ,. in an amount equal to one week of salary for each year of service. For the period from April 1, 1978, the benefits described under Article 14.4 shall apply. The Ministry argues that Article 14.1 applies, as Bickerstaff and Turner were appointed prior to January lst, 1970 (that is, in 1957 and 1958). The union argues that Article 14.3 applies, as the grievors were appointed after January Ist, 1970. The source of their disagreement is the change in the grievors' status in April, 1972 from the unclassified service to the classified service: does "appointment" in Article 14 refer to appointment to the classified 4 7 -4- service or to appointment to the "public service" (as defined in the Public Service Act, R.S.O. 1970, c.386, as am.S.0. 1972, c.1; 1972, c.1; 2972,‘ C. 96; 1973, c. 85, s. l(g))? To resolve this problem, it is necessary to look at the interaction of various provisions of the Public Service Act, The - Crown Employees' Collective Bargaining Act (S.O. 1972, c.67, as aZ*h and the Working Conditions and Benefits Agreements (Ex.1). The Board ~. has had occasion to do so on other occa~sions, in Mahmood and Corkectional Services, 115/76; OPSEV and Ministry of The Attorney General (FitzsirimIons and Vice), ,1/77; and Harris and 75/77. Unfortunately, these cases provide little assistance here, except to help explain the interaction of the legislation and collective agreements. The Benefits Agreement, in which Article 14 is found, is restriyted-d in its application. Article 1.1 states: ThP benefits ~described herein apply to all '~ ~~~ ~~~~~~~ --.'- civil servants in the public service bargaining unit represented by The Ontario Public Service Employees union.(emphasis added) The term "civil servant" is one which has.a technical meaning. It iS defined in s. l(a) of The Public Service Act as follows: "civil servants means a person appointed to the service of The Crown by the Lieutenant Governor in CoUnCil On the certificate of the Comission or by the Commission, and "civil service" has a corresponding meaning. Only "civil servants" can be appointed to the "Classified service", which is defined in s.l(b) of the Act as follows: "classified service" means the part of the public service to which civil servants are appointed. -5- In contrast to civil servants, there is another group of government employees who are employed within the "unclassified service". That term covers "the part of the public service composed of positions to which persons are appointed by a minister under this Act" (s.l(i)). The "public service" referred to in s.l(i) encompasses both the classified and unclassified service (s. l(g)). Since the grievors were only-appointed to the "civil-service!!. as of 1972, the union has argued that Article 14.3 applies, and a decision shouldbe rendered in their favour. If we were to agree to such, an argument, it would be necessary to consider another important aspect of Article 14: that is, the significance of the phrase "continuous service" therein, a phrase also used in other provisions of the Benefits Agreement,~ such as Article 8, Vacations~and Vacation--.~ Credit. It was mentioned in argument that the grievors received vacation credits in accordance with that article as'if their continuous service dated back to 1957 and 1958 respectively. While this practice does not bind the Board in determining the meaning of Article 14, i,t does vindicate the importance of considering the meaning of both the phrase "continuous service" and appointment in Article 14. Specifically, it is important to decide whether employees like the grievors can receive benefits which are based on periods of service in the unclassified service. Many members of the unclassified service, including the grievors at one time, are not "employees" for purposes of The cro~r, Employees' Collective Bargaining Act (s.1 (1) (g)(v) and (vi)). It is necessary to .determine if they can acquire benefits (such as seniority credit) for a period when they were not "employees". It is the Ministry's -6- ‘i contention that they can do so under Article 14.1. In order to understand the respective positions, it is necessary to quote further from the l.egislation and the collective agreement. The definition of "employee" under the crown Employees' Collective Bargaining Act is'found in s. I(I)(g) and reads: "employee" means a Crown employee as defined in The - Public Service Act but doe% not include, (v) a student employed during the student'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 works on a regular and continuing basis, (vi) a person engaged under contract in a professional or other special capacity, or-for a project of-z non-recurring kind, or~on~~a~temperary work assi@ment arranged ~~ .L by the Civil Service Commission in accordance with its program for providing temporary help. Thus, individuals such as the grievors,at one time, when employed on special contract in Group 1 of the unclassified service (Public Service- -- Act, R.R.O. 1970, Reg. 749, as am.O.Reg. 870/77, S.S(l)), are not - "employees"under The Crown Employees collective Bargaining Act because of .s.l(l) (9) (vi). 'The grievers, at the time of their grievance had become "emp7oyees" under the Act, and it will be necessary to consider the period of their seniority. "Continuous service" is not defined in the Benefits Agreement. It is defined, however, in Article.25.1 of the Working Conditions Agreement in the following terms: in employee's length of continuous service will accumulate upon completion of a probationary period of not more than one year and shall commence from: (a) the date of appointment to the classified service for those employees with no prior service in the Ontario Public Service;.or -7- (b) the date on which an employee commences a period of unbroken full-time service in the public service, immediately prior to appointment to the classified service. "Unbroken service" is that which is not interrupted by separation from the public service; and "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications. It was argued by the union that "continuous service" in Article 25.1 of the Working Conditions Agreement should not apply to the Benefits Agreement, and should be,limited in its application to job security, lay-off and promotion situations. Counsel argued that continucus service in Article 14 referred only to service as a civil servant-thatiis, from 1972 for the grievers. Counsel for the employer did not focus on Article 25, but ~instead~referred to s.68(d) of.the Regulations under The Public .service Act (R.R.o. 197O,Reg.749, as am.O.Reg. 870/77). There, "continuous service" is defined as-follows: "continuous service" includes exy unbroken - period of full-time service in the public service immediately before last appointment as a civil servant. That provision must be read with caution, however, for s.29(3) of The Public Service Act provides that a provision in a collective agreement which conflicts with the provisions of a regulation wills override the regulation. Section 68(d) is found in a definition section under Part VI of the Regulation, entitled "Benefits". That part deals with many of the same items as those found in the Benefits Agreement, for example, termination payments in s.89. Therefore, in light of s. 29(3) of the Act, it is necessary to read the definition i -7 -8- . - in s. 68(d) in context, as well as to look at the collective agreement, to see whether there is any conflicting provision regarding continuous service which is appli,cable to the Benefits Agreement and so overrides s.68(d). It is difficult to accept the union's argument that Article 25.1 of the Working Conditions Agreement should not affect the interpretation of Article 14. The Board was referred to Article 1.1 of the Working Conditions Agreement by the union for an explanation of the scope of the "public service bargaining unit" mentioned in Article 1.1 (Application) of the Benefits Agreement, thus showing the interrelationship of the agreements. The unit in the Benefits Agreement is determinable from the Recognition Article (l.L) in the~~Working Conditions Agreement: 1.1 In accordance with The Crown Employees Collective Bargaining Act, the &tario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning'of clause g of subsection . . 1 oft Section-l-of The-Crown Employees~Collective~Bargaining Ad. The Benefits Agreement does cover a smaller group than does the Working. Conditions Agreement (i.e., only civil servants and not the limited number of seasonal or temporary employees in the unclassified service covered by Article 3 of the Working Conditions Agreement). Nevertheless, the two agreements should be read together, since they are drafted by the same parties to cover largely the same group of employees. Therefore, Article 25.1 of the Working Conditions Agreement.should assist in the interpretation of Article 14 of the Benefits Agreement. -g- ’ With that conclusion, it is necessary to determine the meaning of both the term "appointed" and the term "continuous service" in Article 14 of the Benefits Agreement. That article contains different methods for calculating termination payments depending on the date of appointment of the employee. Those appointed prior to 1970 use a method based on attendance credits, because members of the classified service were then allowed to bank attendance credits. After 1970, this system apparently changed and consequently, so has the method for calculating termination payments. The grievors, while member,? of the unclassified service, did not bank attendance credits,.and the.union argues that it would be inequitable now to reduce their termination payment by treating them under-Article 14.1. The Board would-agree that the grievors fall within Article 14.3, rather than Article 14.1. The Benefits Agreement applies only to civil servants, and significance must therefore be given to the word "appointed" in Article.14. This must mean appointment to the civil service, which in the grievor"s case is April, 1972. OPSEU does not bargain for many of those in the unclassified service, for they are not "employees" within the meaning of "employee" in The Crown Employeei Collective Bargaining Act (s.l(l)(y) (v) and (vi)). TO Comply with that. Act and with Article 1 of the Benefits Agreement, the phrase, "an employee who is appointed", must refer to an employee within the meaning of the crown Employees Collective Bargaining Act and only one who is appointed to the civil service. This interpretation is harmonious with the apparent purpose of - 10 - . . Article 14, which is designed to benefit long service civil servants who have established a bank of sick credits, treating them differently from those who were appointed under a different system. It would be inequitable to include the grievors under Article 14.1 when they were not accumulating sick credits for the period referred to in Article 14.1. The employer has mentioned that the grievers. received vacation credits dated back to their period in the unclassified service. This may suggest that the grievers are adopting a "supermarket approach" to ,the collective agreement, seeking to interpret clauses in the most advantageous way. The Eoard need not determine the grievors' entitle- ment to vacation&edits.-here?Two points-must be explored; however; First, it should be noted that Article 14 specifically deals with appointment date, unlike Article 8 dealing with vacation leave. As mentioned above, this must mean appointment to the classified service because of the structure of Article 14. Secondly, a determination must still be made as to the meaning of continuous service in Article 14.3. It was concluded earlier that the definition in Article 25.1 of the Working Conditions Agreement should govern (quoted su[?ra, p. 6). This leaves the problem whether the union can bargain for seniority provisions which include a period of service outside the bargaining unit and, if so, whether the union has bargained to achieve that end under the collective agreement. J -* - 11 - ,..r: The Board has never dealt directly with this issue. In the case of Mahmood end i?inistry of Correctlonal Services (115/76), Professor Beatty discussed a related issue concerning the ability of an employee to credit a period of service in the unclassified service (when the grievor had not been an "employee" under the Act) to the -'period of probation in the classified service. In deciding that the grievor could not do so, Professor Beatty focussed on the purpose of a probation period as a time of assessment, as well as the particular wording of !I?IO Public Service AC t and the collective agreement at the time. He rejected an analogy to cases in the private sector in which managerial employees are allowed to.accumulate seniority for the period in which they are outside a bargainingnicnoting that such decisions turn on the wording of the collective agreement (p.15). .~~ The grievors here are in a position-where they are now "employees" and in the bargaining unit, and they are seeking to draw on their service outside the bargaining unit to obtain benefits. Article 25.1(b) allows individuals to obtain seniority credit for at least some periods in the unclassified service, referring to "unbroken, full-time service in the public service, immediately prior to appointment to the classified service." There are two possible interpretations of these words. First, one could argue that this clause refers to full-time service as an "employee" (under s.l(1)(g) of The Crown Employees' Collective Bargaining Act). Thus, it would :, ‘L .L - 12 - be restricted to service in the bargaining unit and would not include those outside the definition of "employee", such as the grievors, who were excluded by s.~(I) (91 (vi). Alternatively, it could be argued that the phrase refers to any period of unbroken, full.-time employment in the public service, whether or not the individual was then in-the 1 bargaining unit or eligible for collective bargaining. Cases are of.jittle assistance in determining this question. In Re Espanola General Hospital. am? CUPE (19?5), 9 L.A.C. (2dl 36 lO'Com~t, a managerial employee transferred to the bargaining unit was held to retain his seniority and was not required to undergo a prcbationary 1 period. Professor Beatty~in the M.&XTTJO~ case has shown the inapplicability of the ~spanola case under this collective agreement because of the specific. wording regarding probation. Of.more assistance is the Gabriel of Canada Ltd. case (1967), 18 L.A.C. 373, in which Professor Palmermade an effort to harmonize the cases dealing with acquisition of.seniority by employees outside of the bargaining unit. Noting that the parties can give credit to individuals for their service outside the bargaining unit, he emphasized that the issue turns on the terms of the collective agreement, with ambiguities determined in favour of the individual's rights rather than the group's rights (at 380). A final case which may provide some assistance is the westeel - ROSCO Ltd. case (1969), 20 L.A.C. 202 (Weatherill), in which employees ,I -, i - 13 - whose seniority "shall date back to his last date of hire" acquired seniority for service to the employer in another plant outside the bargaining unit (at 209). The Westeel-Rosco case is the closest one to the present case, for here the grievors also seek credit for continuous service to the employer for a period in which they were not members of the bargaining unit. As the Gabriel case shows, the parties can give credit for service outside the bargaining unit. In interpreting a collective agreement, it is to be assumed that parties take into account the trend in arbitral awards and 'are aware that arbitrators do recognize efforts to give credit for service outside the bargaining unit, as -.-.- ~--: ~~ we13 as treat ambiguities in language in the employee's favour i rather than that of the group. The.present Article 25.1(b) has two possible interpretations, mentioned-earlier. To conclude that con- tinuous service refers to full-time service in the unclassified service, even outside the bargaining unit, would be consistent with the direction of most arbitral awards. It would also give significance to the change in wording in the seniority provisions in Article 25.1 since the mhmood case (supra). The parties have now explicitly referred to acquisition of seniority by those employed in the public service, whereas in the 1976-1977 collective agreement, certain public servants in the bargaining unit (those exempted from the s.l(l)(g)(v) exclusion in the Act) were explicitly denied seniority for their period in the public service (Article 3.4.3.). Other public servants in the bargaining.unit were not mentioned. Eoth groups of public,servants in the unit are now explicitly covered by Article 3, and -14-' Article 3.6 makes the seniority provisions in Article 25 applicable to them. If they work full-time and in unbroken service, they can acquire seniority based on their period in the public service. < Therefore, in light of past cases and the change in the collective agreement, it can be concluded that the parties intended that employees like the grievors should be able to backdate their continuous service, for purposes of calculating termination payment, even though this period was served outside th,e bargaining unit. As in the Gabriel case, any ambiguity in Article 25.1 is interpreted in the individual's favour. It was noted in argument that this decision will affect a relatively small group of employees, since many of the employees in the unclassified service were allowed to bank attendance credits during that period. We would conclude that the grievances should be allowed. The termination payment is to be calculated according to Article 14.3 of the Benefits Agreement because the grievors were appointed to the civil service after January lst, 1970. Their "continuous service" will include any period of full-time,,unbroken service in the unclassified service prior to their appointment to the classified service in April, 1972. The Board will retain jurisdiction to determine any . . prcblems in calculating the compensation due pursuant to this award. Dated at Toronto this 12th day of February, 1930. i%oressor Katherine Swlnton-Vice-Chalnnan I concur I