Loading...
HomeMy WebLinkAbout1980-0458.Wilson et al.81-07-02458/8O 525180 526180 IN THE MATTER OF AN ARBITRATION Under The CROWN EMpLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Mr. Robert Wilson, Mrs. Hilary Robinson, Mr . Frank Gleadhill Grievbrs - And - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Prof. R. H. McLaren Vice Chairman Ml- , I. S. liIacGregor Member Mr. S. Schachter Member For the Grievors: Xr. R. .4nand, Counsel Cameron, Brewin & Scott For the Employer: Mr. W. J. Gorchinsky Staff Relations Officer Civil Service Commission Hearing: June 4, 1981 There are three different grievances involved in this award all of which raise a similar issue as to the inteqretaticn of the collective agreement between the parties. On the day of the hearing there was no objection to the Soard's jurisdiction to hear the matter and the parties proceeded to present to the Board an agreed statement of fact. The three Grievors have been employed by the Ministry 05 Nat'Aral Resources for varyiilq numbers of years on a new contract eac.h year to perform jobs at different provincial oarks. TSey are not members of the civil service but are within the category known as the unclassified service. Art icle 3.2.1 of the collective agreement provides: "3.2-l. WAGES The rate of the equivalent civil service classification shall apply. If there is no equiva- lent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations." \ It is from this article that the grievances arise. Employees ' in the unclassified service are employed on a new contractural arrangement each year. In this particular grievance the employees are all members of what is known as Group 2 of Cne unclassified service, that is, employees who are employeed on a seasonal or recurring job that permits them to be employed up to a maximum~of nine months out of any twelve month period. The policy of the Ministry of Natural Resources is to sign persons within group II to a contract without regard to the previous occasions on which the particular individual may have .been employed in similar employment with the Employer. The net effect of this is that meri,t increases which can accrue to the equivalent civil service classification are not necessarily extended to an individual who.is hired as an employee in the unclassified service. Each of the Grievors has been employed by Us Ministry for a number of years on these yearly contractural arrangements. In each case, the Grievor"s work is related to an equivalent civil service classification and then a rate of pay is determined. The rate of pay will usually be the first 'step of the equivalent civil service.classification. But on occasion, each of the Grievors has been paid at some higher or stepped up figure and, in one case, in a particular year, an employee was moved from a third step backwards to the first. There is no obligation to rehire any person hired on the basis of these contractural arrangements and they accumulate no seniority while employed as Group II employees of the unclassified service. The thrust of the grievances relates to the fact that these particular Grievors feel that their service over the years has not been properly recognized by having their wage rates moved up to steps beyond step 1 o'f the equivalent civil service classification. In other .dords, they claim an entitlement to the merit increases of the equiva- Lent civil service classification. The obligation of Article 3.2.1 of the collective ; agreement is one which exists between the Employer and the Union. It is an obligation on the Employer that they enter into these yearly contracts at “a rate of equivalent civil' service classification". There is no promise or obligation axtending 'to the employees themselves. If an individual were employed in a previous year by the Employer when the contractural arrangement came to an end the Employer would owe nopFurther obligations to.that particular employee and the employee srould / have no continuing rights under the collective agreement. The employee/employer relationship has come to an end. If the Employer then decides to re-hire the individual in a subsequent yea: there is an obligation extending from the Zmployer to the Union in the form of Article 3.2.1. The contract entered into with the individual is to be on the basis that they will receive a rate of pay equivalent to a civil service classification. That simply means that the particular Group II .job must be examined and an equivalent civil , service classification identified. Once that has been done then the Employer is obligated to pay a rate equivalent to the scale of rates for that classification found in the civil service agreement. There is no restriction on the Employer such as the recognition of previous service to determine a particular rate 5. at which an employee is to be hired. It is entirely withi;? She Employer's discretion to determine whether the first steo or any subsequent step is to be the rate at which the eqloyee, when hired, will be paid. The only constraint on the Employer is that a particular rate in the range of rates for the equivalent civil service classification is the one selected. In other words, if there were five steps to the classification the employee being hired for the seasonal contract would have to be ?aid at one of the rates of the five steps. No new rate could be established between the Employer and the individual being signed to the contract. The agreed statement of facts indicate Chat on occasion the Employer has used its discretion to sign up these particular Grievors at rates which were not at the first step rate for the equivalent civil service classification. The foregoing must be the correct interpretation of Cuticle 3.2.1. To find otherwise would require this Board to try and adopt rules not found in Article 3 to determine how and at what time period individuals might be conSidered as being eligible to be considered for movement from one step to the next in the equivalent civil service classification. To so hold would involve this Board in the writing and creating of contractual terms where the parties had provided none and none jiere intended. This Board having found that there is no obligation u?on the Employer to recognize previous service when re-hiring former employees must conclude that there can be no srell founded allega- tion of discrimination. The evidence does not go so far as to suggest that the Employer has behaved.in an arbitrary fashion towards any of the Grievors in establishing the particular rates of pay for the contracts in 1980 to which the grievances relate. 6. Foi all~of the foregoing reasons, it is found that, there is no merit in the grievances and tkkey are hereby dismissed. DATED AT LONCON, ONTARIO, this 2nd day of Duly, 1331. ' _- ,. _’ _. i ._ _;._~ _, -..~ -_ R. H. McLaren, Vice-Chairman I concur/b;=2.c;it I -r/dissent "R. I. MacGregor" R. I. MacGregor, Xeker “S. Schachter" S. Schachter, I'!ember Re: 458/80, 525180 & 526180 OPSEU (Mr. Robert Wilson, Mrs. Hilary Robinson & Mr. Frank Gleadhill) and Crown/Ontario (Ministry of Natural Resources) DISSENT The facts of this case are not in dispute, and the grievances really concern the reading and interpreta- tion of the collective agreement. The grievors are all unclassified as seasonal public servants. This arrangement permits the employer to layoff staff during slack seasons without having to comply with usual notice and bumping procedures. The employer regularly re-employs such staff even if not under an obligation to do so and benefits from the greater efficiency the experienced staff are capable of producing. In order for the collective agreement to give recognition to the special arrangements the employer requires for seasonal workers, a special all exclusive article is' included in the agreement covering these workers. The only subsection of relevance to this grievance is Article '3.2.1 quoted in full in the majority award. It states that the (wage) rate of the equivalent civil service classifica- tion shall apply. The question before this Board is to interpret the above sentence and to determine what is included in the term "equivalent". In practical terms the question becomes whether seasonal employees are entitled to be considered for merit -+ -2- increases in the same way classified public servants are. The employer's position is.that such employees are to be treated as new employees. The employer that argued that new employees are to be paid, at the first step of the 5 step range. Nevertheless the admitted facts indicate that on occasion the employer has paid a higher rate in thee range. The majority of this Board has adopted a position that was not put forward by either of the parties. The Board ruled that the Union has permitted the employer to pay seasonal workers any rate within the five-step range in its absolute discretion. The majority position does not conform to/the language of the collective agreement. Article 3.2.1 refers to a single rate not to a choice of rates within a range. Aside from this misreading of the language of the collective agreement the majority position proposes an interpretation that is out of touch with the industrial reiations reality. A Union is most unlikely to give management such an un- bridled discretion. Such a discretion lends itself to abuse by a management that could be motivated by a desire .to weaken the Union by giving merit increases to anti-union workers and withholding them from Union supporters. The +nterpretation of Article 3.2.1 has been previously considered by Mr. Weatheriil in a decision of this Board, Sysiuk, ,PoIJ~ZZ and Miller (191/79). The case r -3-’ concerned the entitlement to retroactive pay prior to the inclusion of Article 3.2.2 in the collective agreement. Just as there was nothing in that agreement to exclude retroactive pay from the rate for unclassified staff so too there is nothing in this agreement to exclude merit increases from the rate for seasonal employees. The majority believe that to entitle seasonal employees to merit increases would involve the Board in- corporating rules into the agreement on when seasonal workers would be eligible for the increases. The Board overlooks the fact that the parties have already agreed on time periods that must be served before classified employees become eligible for these increases. The language of the collect- ive agreement in Article 3.2.1 incorporates these time periods in the word "equivalent" and there is no other term in the agreement to exclude seasonal employees from eligibility for merit increases. ,I am supported in my view by the provisions of section 17(2') of the Crown Employees Colle.ctive aarqaining_ Act. - This section applies to all public servants including seasonal workers. It allows seasonal employees to grieve improper appraisals. By implication seasonal employees are entitled to appraisals and to the regular consequences of a good appraisal, the main one being a merit increase. In the result, I would allow the grievances and order that management appraise the grievers in accordance with regular,practice and pay merit increase to those of the grievors that qualify. pL&$ -4- DATED at Toronto., Ontario this 2nd day of July, 1981. AT!- Shalom Schachter