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HomeMy WebLinkAbout1985-1383.Union.86-07-08SETTLEMENT Between Before: For the Grievor: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) GrieVOr - and - The Crown in Right of Ontario (Ministry of Community and Social Services) R.L. Verity, Q.C. J. McManus W.A. Lobraico Stephen Goudge, Q.C. Counsel Gowling & Henderson Barristers & Solicitors For the Employer: Michael Milich Staff Relations Officer Management Board of Cabinet Hearing: AGril 10, 1986 Employer Vice-Chairman Member Member -2 - DECISION A Union Grievance dated December 17, 1985 was filed by OPSEUProvincial President games Clancy which alleged that in closing a Provincial facility at Whitby, the Ministry had violated “several articles of the Collective Agreement”, including in particular Articles 24 and 5. The settlement requested was as follows: “That the Ministry of Community and Socia.1 Services cease and desist and declare that their application of Articles 24 and 5 was contrary to the provisions of the Collective Agreement. Further, that any assignment or lost opportunity as a result of these contraventions be redressed by the assignment of staff to classifications that are in accordance with the Collective Agreement and that. all monies, with interest, be paid retroactive to the date of the improper assignment, or denial of ,.assignment, in accordance with the Collective Agreement.” This Grievance raises a number of issues which~ arise from the closing of the Durham Centre (a facility for the developmentally handicapped) and the manner in which surplus .employees are to be dealt with. At the Hearing on April 10, 1986, the Parties addressed only’one issue (referred to as the central issue), and requested that the Soard remain seized of all other matters in dispute. / -3 - The Article in contention reads as follows: “24.2.1 Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification, as follows: - a vacancy which is in the same class or position as the employee,‘s class. or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy.” , Thus far, the facts are not in dispute. A .number of employees at the Durham Centre c.lassified as “Counsellor 2 (Residential Life)” were declared surplus pursuant to Article 24 of the Collective Agreement. The Ministry refused to consider these employees for’ vacancies in the Clerk 3 General classification because in its opinion the maximum salary of that classification did not fall within the salary eligibility requirements set’forth in Article 24.2.1: The Union maintained that “Residential ‘Life Counsellors.“, as they are commonly referred to, met the salary eligibility requirements and should have been considered for vacancies at the Clerk 3 level. The Parties’ dispute centres on the interpretation of the .phrase “the salary maximum of the vacancy” used ‘in Art’1cl.e 24.2.1. The Employer interpreted the phrase to mean hourly rated salary. The Union contended that the provision meant weekly salary. The Cou.n’sellor 2 (Residential Life) classification is an hourly rated job paying a maximum rate of pay of $10.67 per hour. The position involves a 40 hour work week. On the other hand, the Clerk 3 General classification is a weekly rated job (maximum $403.81 per week). Incumbents classified as Clerk 3 General work a 36-I/4 hour work week. Different results are obtained for salary el .gibflity under Article 24.2.1 if “salary maximum” is calculated on an hourly basis rather Counse 1 salary than a weekly basis. On an hourly basis Residential Life lors would be disqualified ($10.67 and $ll.T4 on the 3% above I factor) while on a weekly salary basis Residential Life Counsellors-would qualify,($426.80 and $403.81 on the 20% below salary factor). The Employer sought leave to introduce evidence of past practice alleging that the phrase “salary maximum” in Art icle 24.2.1 was ambiguous. The Union objected to the introduction of any such evidence on the basis that there was no ambiguity. The Board permitted the Employer to introduce evidence of past practice while reserving on the issue of relevance. Two witnesses testified on behalf of the Employer. Mrs. Margaret Bury is Relocation’ Officer in the Relocation Unit of the Recruitment Branch of the Civil Service Commission. The function of ,. -5 - ister the surplus program and to place employees that Unit is to admin into vacant positions Collective Agreement. within the parameters of Article 24.2.3 of the Mrs. Bury outlined the procedures involved in the placement of surplus employees. Her testimony was to the effect that salary eligibility was determined by an employee’s hourly rate and that “employees are listed by seniority by their hourly rate”. She testified that the basic hourly rate formula had been utilized by the Ministry to calculate salary maximum since she assumed her current responsibilities in 1980. Mrs. Tanis Gillings is administrator and surplus co-ordinator of the Ministry of Community and Social Services. Since 1979 she has been involved with closures and divestments in two Ministries - the Ministry of Community’and Social Services and the Ministry of Revenue. Mrs. Gillings role with the CurrentMinistry is to facilitate the placement of surplus employees pursuant to the provisions of Articles 24.2.1 and 24.2.2. Mrs. Cillings is responsible for the creation of an eligibility list in the Ministry based on salary criteria of 3% above and 20% below. She testified that most closures 1nvolve.d eniployees,working 40 hours per week and 36-l/4 hours per week. She noted that some employees are paid on a. we.ekly basis, while some are paid on a basic hourly rate.. It was her evidence that “salary rates are reduced to hourly rates for, comparison purposes”. In cross-examination, Mrs. Gillings acknowledged~that she had not been questioned by the Union as to the salary calculation. -6 - One witness testified on behalf of the Union. Donald Stewart is an OPSEU Representative who was actively invol ved in the Durham closure in the fall of 1985. He testified that in late 1985 he first became aware of the methods used by the Employer to calculate salary maximum. His evidence was to the effect that in previous closures there had been no discussion of calculation methods of salary maximum. The Union argued that past practice was an irrelevant consideration, and even if found to be admissible was of no assistance to the Board. Mr. Goudge contended that the Collective Agreement made a clear~distinction between basic hourly rate and salary as terms of art. He maintained that the Employer’s calculation was improper as there was no such concept as hourly salary. Further he argued that from a ,policy’ standpoint, it was difficult .to’understand the Employer’s concept. The Employer contended that the Parties recognized two basic rates of pay in Schedule “A” of the Collective Agreement and four schedules of hours of work in Article 7. Mr. Milich contended that the basic’hourly rate was the only common denominator for appropriate comparison purposes. A determination of the central issue has presented some difficulty in the absence of any arbitral precedent by either Party. Initially., the Board was attracted by the relative simplicity of the Employer’s argument. However, in our opinion, that approach does not withstand closer scrutiny. -7 - Article 24.1 provides for the identification of a surplus employee and the subsequent assignment of that employee where there has been a lay-off, the abolition of a position or a material change in organization. Article 24 is designed to provide limited job protection and income protection for a surplus employee for entitlement to a vacancy “where the salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (26%) below the maximum salary of this classification”. The assignment provisions of Articles 24.2.1, 24.2.2 and 24.2.3 all contain the requirement that a surplus employee is. qualified to perform the work of the classification in which there is a vacancy. .In addition, each of these Articles contain geographical constraints. Articles 24.2.1 and 24.2.3 provide that a surplus employee can be assigned on the basis of seniority to a vacancy in his Ministry or .another Ministry within a 40 kilometre radius of his headquarters. Article 24.2.2 provides~ that mutual consent is required to assign a surplus employee to a vacancy, in his own Ministry beyond a 40 kilometre radius. The &ard finds that the phrase “salary maximum of the vacancy” contains no ambiguity, and accordingly it is unnecessary to resort to evidence of past practice as an aid to interpretation. The evidence established that there was no shared understanding between -8 - the Parties as to the Employer’s method of calculation until shortly before the filing of the Grievance. In our opinion, the term salary is employed by the Parties in 24.2.1 in the ordinary meaning of salary as a fixed payment made by the Employer at regular intervals - be those intervals weekly, monthly, quarterly or annually. “Basic hourly rate is not a salary. Rather, it is a component of.salary as are hours of work. These two components combine to establish a salary over a regular pay period. It is from salary that deductions for such items as income ‘tax, pension benefits and other deductions are ta’ken. Clearly, deductions are not taken from a basic hourly rate. In numerous provisions of the Collective Agreement, the Parties have specifically employed the phrase “basic hourly rate”. See for example Article 11 (Shift Premium); Article 13 (Overtime); Article 14. (Call Back) ; Article 15 (Stand-By Time); and Article, 19 (Holiday Payment). Had the Parties intended that salary as specified in Article 24.2.1 meant “basic hourly rate”, they would have so stated. In Article 7 entitled “Hours of Work”, the Parties use the terminology “the employee’s weekly salary based on his basic hourly rate” in Article 7.5. The same wording is used again to in ,Article < 1 ,: ; -9 - 7.7. Had the Parties intended that concept to apply to the provisions of Article 24.2.1, similar if not identical language would have been inserted. In the result this Grievance must succeed on the central issue. In the circumstances, we’ find that .the Employer erred when it failed to consider Residential Life Counsellors foe vacancies. at the Clerk 3 General level from the standpoint of salary eligibility. The Board shall remain seized of all other issues in dispute failing _ resolution by the Parties. DATED at Brantford, Ontario, this 8th.Day of July, 1986. 1 ,>A.- -5. L n. L. Verity, Q.C. - Vice-Chairman ‘W. A. Lobraico \