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HomeMy WebLinkAbout1983-0089.Roy.83-12-30‘\ ONTARIO \ CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Miles M. H. Roy) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) _ Employer P. J. Brunner Vice Chairman T. Traves ,Member; . G. Peckham Member P. A. Sheppard Grievance Officer Ontario Publics Service Employees Union J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services October 28, 1983 . - 2 -. DECISIOH -This is a grievance dated January 10, 1983, brought by Miles M. H. Roy, who is employed as a Correctional Officer (Level 2) by the Ministry of Correctional Services (hereinafter referred to as the Employer) at the Toronto West Detention Centre, in which he alleges that the Employer contravened Article 46.7 of the Collective Agreement with the Ontario Public Service Employees Union (hereinafter referred to as the Union) in refusing his request for vacation for a period commencing in the month of March, 1983. At the opening of the hearing the Employer raised a preliminary objection as to the jurisdiction of the Board, submitting that the matter of scheduling of vacations was an exclusive Employer function and accordingly not arbitrable under either the Cnown Emp.toyeen CO.!k2ctiue Bahgaining kk, R.S.O. 1980, ch. 108, or the Collective Agreement between the Employer and the Union. We are all of the opinion that the preliminary objection fails and that we have jurisdiction to hear and determine the subject grievance. Article 46.7 of the Collective Agreement reads as follows: "46.7 An employee vlth over six (6) montha of continuous service may. with the approval of the Deputy Minister, take vacation to : ;- -3- the extent of his vacation entitlement and his vacation cradite shall be reduced by any such vacation taken. For thi.6 purpose, an employee may include any continuous service as an employee in the Public Service Of Ontario immediately prior to his appointment to the civil eervica.” It is agreed that Roy is an employee with over six months of continuous service and it is further common ground that the Deputy Minister did not give his approval that Roy take his vacation during the requested period in March, 1983. The position of theEmployer is-that the matter of scheduling vacations, is an exclusive Employer function and that the Deputy Minister has the right to give or withold approval as he may deem proper in the given circumstances. The Union on the other hand contends that while the matter of approval is one within the discretion of the Deputy 'Minister, it is a discretion which is not unfettered but one that must be exercised Within reasonable limits. In our view, these opposing views of the parties constitute a difference “arising from the interpretation, application, administration or alleged contravention of the Collective Agreement" within the meaning of Article 27.1 Of the Collective Agreement and accordingly the grievance, having been prJperly.processed under Article 27 , is one that falls within the jurisdiction of the Board. In this connection,. reference was c -4- _. . made to the decision of the Board in Debotih A. Rivead, 310/82, where theBoard, under the aegis of Professor R. J. Roberts, reached a similar conclusion with respect to the difference between the parties as to the proper interpretation of Article 46.5 of the Collective Agreement. However, in that case, the Board expressed the opinion that the scheduling Of vacations was an exclusive Employer function under the CXown EmpfOyeeh Co.t.Lec.tive Eahgaining k2.t. With the greatest of respect for the panel of the Roard which dealt wit> that case, this view is contrary to the express provisions of both Section 7 and subsection 18(l) of the Act. Sesction - 7 authorizes the Union to bargain with the Employer, inter alia, .snd excepting therefrom matters that iire exclusively a function of the Employer under rrlbsection 18(l), with respect to "paid vacations". Subsection 18(l) on the other hand, stipulates that every Collective Agreement shall be deemed to provide that it is the exclusive function of the Employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine a number of matters, but not, even on a broad view, "paid vacations". In any event, the matter having been expressly covered by Section 7, cannot 'fall with- in subsection 18(l) and is not an exclusive Employer function in view of the absence of such a provision in the Collective Agreement. ^.~ ..- __._~ .__ -5- There being no exclusive management rights.clause in the Collective Agreement before us, cases such as Re Uuniciripz fieity 06 Me.tkopotiaiIn To&onto and Tohonto Civic Emp.!oyeeA fhion, Lccae 43 et ok!, (1975) 62 D.L.R. (3d) 53 (Div.,Ct.) and decisions of the Grievance Settlement Board , such as the Su&&van case, 578/81, are not relevant and need not be considered. .For these brief reasons, the preliminary objection is dismissed and the Registrar is requested to list the matter for hearing on its merits; which in accordance with the request Of the parties, was not dealt with at the hearing on October 28, 1983. DATED at Toronto this 30th day of December, 1983. p . J. rRmN.P , VICE CHAIRMAN / G ECKHAJ4, MEMBER