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HomeMy WebLinkAbout1985-0856.Union.86-03-10i IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor -.and - The Crown in Right of Ontario (Management Board of Cabinet) Employer Before: R. L. Kennedy - Vice-Chairman - M. Perrin - Member A. M. McCuaig - Member For the Grievor: C. G. Paliare .Counsel Gowling C-Henderson Barristers & Solicitors For the Employer: M. Milich Staff Relations Officer Civil Service Commission ,.... . Hearing: February'Q; 1986 - 2- DECISION The grievance in this matter was filed by the Union-as a Union Policy Grievance on August 30, 1985. The grievance 'provides-ias .follows: The Union grieves that employees in all Ministries who received a promotional pay increase that took effect in 1984 from "Office" to "Clerical Service" category have not been paid the correct salary as set forth in the Collective Agreement. Settlement Desired 7., That the said employees be paid the correct salary as of and from the date it became due, and further that interest at the rate permitted in the Supreme Court of Ontario accrue to any sum currently outstanding but not paid before as well as after an award in this matter. The particular provision in the Collective Agreement which was referred to by the parties reads as follows: 5.2.2. : An employee tiho is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his present rate of pay, except t.hat: where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again, which amount will be .'~ considered as a one-step increase: a promotional increase shall not result in the employee's new salary rate exceeding the maximum of the new salary range except where permitted by..salary note. Most of the fol the material facts were agreed to by the parties, and .lowing is a Statement of Fact filed on the hearing: - 3 - 1. 2. 3. 4. 5. 6. 7. 8. 9. The parties negotiate separately the Working Conditions and Employee Benefits Agreement and the nine wage categories. The example.being.used in this case involves the two wage categories of Clerical Services and the Office Services. The Collective ~Aqreement for both wage categories ended December 31, 1983. In 1984, both categories were referred to arbitration for resolution. The awards were handed down on December 13, 1984 for the Clerical Services Category and on December 19, 1984 for the Office Services Category. The rates of pay flowing from these awards were implemented on February 7, 1985. and February 21, 1985 respectively. The rates of pay for the Office Services Category were 'increased by 5% and for.the'Clerical Services Cateqory.by 6.5%. The increases to the rates.were awarded retroactively to January 1, 1984, and the terms of the agreements covered by the awards were established for one year from January 1, 1984 to December 31, 1984, inclusive. During 1984, a number of employees received promotions from one category to another. The precise number of these emp~loyees is not currently'known. The rates of pay resulting from these promotions were~.. calculated in accordance with Article 5, specifically Subsection 5~2.2. of the Working Conditions and .Employee Benefits Agreement. Since the rates of pay for the classifications within these two wage categories were being negotiated at the time that these promotions occurred, the rates of pay~resulting from these promotions were calculated. on the basis of the rates of pay in effect for 1983. When ~implementing the arbitration awards, the employer recalculated the rates of pay that employees had received as a result of their promotions on the basis of the rates established for the classes for 1984 by the awards. - 4 - 10. This recalculation resulted in some employees who had received promotions being assigned to a level lower in the salary range of the classification to which they had been promoted than the level to~which they had oriqinally~ been assigned at the time of their promotion. 11 ., Appendix 1 is an example of the application'of the employer's policy to Ms. C. Mutimer. 12. "Old .Rate" in the examples denotes the rates in effect for 1983. 13. On March 5, 1984, Ms. Mutimer was promoted from Clerical Stenographer 3 ~to Clerk 4, General. 14. At the time,~ she was at the maximum rate for the -Clerical Stenographer 3. 15. The 1983 rates were used to calculate her promqtional increase under Article 5.2.2. .+.* 16. As a result, she was'assigned to'the third step of the salary r.anqe for Clerk 4, General. 17. When the revisions for the categories were implemented, Ms. Mutimer's promotional increase was recalculated. 18. Her rate of pay as Clerical Stenographer 3 was adjusted to reflect the 1984 rate, and then the promotional formula under Article 5.2.2. was applied to the new rate. She was assigned to the second step of the range for Clerk 4, General since it was the next higher rate and was not less than 3% of the maximum rate for Clerical Stenographer 3. . 19. Appendices 1 and 2 show.the wage rates for both.1983 and 1984 for the two categories: 1983 rate is shown as 'the "Old Rate". We do not propose to reproduce in this award the Appendices that were attached to thee Agreed Statement of Fact. -The situation may be summarized. in narrative form. Ms. Mutimer - 5 - was employed as a Clerical Stenographer 3 in the Office Services Category and was-at the maximum 1983 rate for that position of $354.74. She was a successful applicant for a job .~ as a Clerk 4 General in the Clerical Category. Her promotion was effective as of March 5, 1984. On that date, and based upon. the application of Article 5.2.2 of the Collective Agreement applied to the 1983 rates, the next highest rate for a Clerk 4, General was the Level 2 rate of $359.85; That rate, . however, would not have constituted an increase of.more than 3%, and accordingly, based on the 1983 rates, Ms. Mutimer was entitled to the Level 3 rate for a Clerk 4, General of $370.92. However, when the actual 1984 salary rates were determined, the maximum rate for a Clerical Stenographer 3 was increased to $372.40. Ms. Mutimer thereupon became entitled to retroactive payment based on that salary rate from January 1, <984 until the date of her promotion. With reference to the Clerk 4, General position, the new Level 2 rate for 1984 became $383.99, and -that rate did, in fact, exceed the 1984 maximum rate for Clerical Stenographer 3 by more than 3%, and accordingly, in computing the balance of Ms. Mutimer's retroactive entitlement, the Empioyer putt her at Level 2 in the Clerk 4, General salary range and compensated her for the period from the date of promotion to the end of the year 1984 at the Level 2 rate. - 6 - In her oral ~evidence, MS. Miitimer confirmed the factual matters relating to her promotion as set out in the Agreed Statement of Fact and made reference to her discussions with representatives of Management at the time she accepted the promotion. It was explained to her that in her new position her salary had to increase by at least 3%,.-and that therefore she would,%-be placed at the third level of the new job. The discussion was confirmed in a letter from the Employer to Ms. Mutimer, dated February 21, 1984, in the following terms: We are confirming our offer and your acceptance of a promotion as Senior Regional Clerk with the HumanRights Branch Toronto West office.of the Ministry of Labour, effective March 5, 1984. On the effective date of promotion, your salary will be increased to $370.92 per week ($19,354.-per annum), which is the third step in a Clerk 4 General salary range. Increments occur annually; and you will be eligible for a merit increase April 1, 1985. Congratulations on your success in the competition and best of luck in your new position. ..:~, MS. Mutimer indicated that at no time in her 'discussions with the Employer had anything been mentioned as to what would happen when retroactive wage i.ncreases came in. It was her expectation that the increase awa,rded would be given to her for the balance of 1984 and that in the normal course she would be increased to the next step in the salary -level-as. of April 1, 1985.. When she received the pay which reflected the - 7 - retroactivity, the amount she received was less than she had expected by approximately $500.00, and also the basic pay for the current period was again less than she had expected. For the Employer, the Manager of the Pay Policy Section was called to testify. She outlined the policies. of the Employer in dealing with circumstance.s of this nature and filed extracts from the Employer's Manual of Administration setting out how these matters were supposed to have been,handled over-' the past several years., Those policies accorded with the treatment applied to Ms. Mutimer's promotion in- 1984. Counsel for the Union objected to the evidence of past.policies, on the basis that there was no ambiguity in the language of the Collective Agreement, and therefore extrinsic evidence was not appropriate as an aid to interpretation in these circumstances. Since we have concluded that this issue can be resolved within the clear, unambiguous language of the Collective Agreement, we do not consider that the extrinsic evidence is material and:we will not review it in any detail. It was also pointed out in f-.-- the Employer's evidence that in some circumstances, an employee ,_. could move up a level in the new classification to which he or.: she had been appointed. This would. occur through the same .~ ~ process of applying the retroactivity based on actual 1984 rates, where the rate of increase awarded to the category to. ~' which the individual was promoted,was,~ in fact , less than the - 8- rate of increase awarded to the category from which the promotion had taken place. It is our view that the purpose and intent of a retroactive entitlement is to place the parties.as closely as possible in the position they would have been in had the Collective Agreement terms and conditions been resolved prior to the commencement of the term. Section 23 (2) of the The - Crown Employees Collective Bargaining Act continues a Collective Agreement in force during a period of time wherein the parties are bargaining or pursuing arbhtration to obtain the renewal of that agreement or a new agreement. That is what happened in this situation, and as at the date of the promotion, the freeze~~.was in force, and the parties were obliged to follow. all of the terms and conditions of the 1983 agreement. That was done at the time of the promotion of Ms. Mutimer. Once a new agreement is reached, however, the freeze is off, and in this situation the arbitration award that go.verned the renewal provisionscontained a provision for retroactivity to January 1, 1984. As a result, the salary entitlements of employees and the salary obligations of the Employer must be recalculated in. light of the rates that have been awarded, but otherwise in accordance with the terms. and conditions of the Collective Agreement. That is effectively what was done by the Employer in the factual circumstances I I i - 9 - . outlined to us. The parties are bound by the provisions of Article 5.2.2 in situations of promotion, and'the effects of that section depend entirely on the particular salary rates which are in force. If those salary rates are altered effective on a date prior to the date of the promotion with a provision that entitlemen.ts be- retr~oactive to that date, we consider that it is a necessary aspect of the application of retroactivity that whatever entitlements there are under Article 5.2.2 be recalculated in light of the new rates that are made effective prior to the date of the promotion. This will have the result for some employees, such as Ms. Mutimer; of placing them in a lower salary level in the new classification than .they'would otherwise have been placed as of the date of promotion based on the old rates. Similarly for others, it will have the effect of placing them in a higher salary level in the new position than they achieved at the time ,__. of promotion based on the old rates. We think ~there is a;~.further practical consideration in favouring the Employer's approach in these circumstances. The ;.effect of accepting the Union position would be that an individual who received a promotion shortly before a new set of wage rates became retroactively effective could be in a dtfferent;salary situation than an employee who received an - 10 - identical promotion subsequent to the date upon which the rates were determined. The second of those employees would have a salary~increase based on actual rates for the contract year being considered. The first employee could have a different salary level, either higher or lower, depending solely on the .,~ .~. specific mathematics of an expired wage schedule and the differing quantum of increases awarded to different wage categories. On the Employer's method both those employees will receive the same effective increase for the period during which they occupy the new position. In interpreting and applying a Collective Agreement, we would have a strong preference for the method which results in equal,application to all employees. With reference to the letter sent from the Employer to ,the Grievor';'which was set out previously in this award; it can of itself give no specific entitlement to a higher level of salary than that provided -for in the Collective Agreement. Separate deals cannot be made with individual employees. It is regrettable that the letter did not contain a reference to the potential effects of a retroactive salary increase, but we do not consider that the omission of such a statement can result in chang~ing the contractual obligations of the parties. ; - 11 - ,. In the result, it is our conclusion that this grievance must-be dismissed. DATED this .lOth day of Vice Chairman (Fartial ) %-Ah p& (attached) Idissent ) Member A. M. McCuaiq \ Member ..I.. GSB 0856/85 IN THE MATTER OF AN ARBITRATION BETWEEN: OPSEU (Union Grievanc~e) - and - ~The Crown in Right of Ontario (Management Boards of Cabinet) .PARTIAL DISSENT Although I agree with the practical outcome of the Board's decision, I wish to make the following points: 1. There is no language in the collective agreement or in the retroactive provisions that allows for recalculation of previously set salary levels: this is an employer I:i practice/policy that should have been brought to the negotiations table by the employer, as until this grievance was filed, the union was unaware of this practice. 2. I would go further than the Chair's comments at page ten ("It is regrettable that the letter did not contain a reference to the potential effects of, a retroactive salary increase...") and state that the letter received by Constance Mutimer should have clearly stated the effects of retroactive salary increases on her-.salary level pursuant to the employer's policy. Marion M. Perrin