GSB #0561/99, 0562/99

OPSEU#99U034, 99B629

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance/Barrow, et al.)

Grievor

• and -

The Crown in Right of Ontario

(St. Lawrence Parks Commission)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE Ed Holmes, Counsel

GRIEVOR Ryder, Wright, Blair & Doyle

FOR THE Kelly Burke

EMPLOYER Counsel, Legal Services Branch

Management Board Secretariat

HEARING November 29, 1999, March 23-24, 2000 in Kingston; May 3, 2000 in Toronto; August 15, 2000 in Kingston; October 19, 2000 in Toronto.

AWARD

This matter involves the individual grievances of thirteen students employed by St. Lawrence Parks Commission at its Fort Henry facility who allege that they “are not being paid at the proper rate”, as well as a Union policy grievance which asserts that “the Employer is violating the collective agreement by misapplication of wage rates to students employed within its jurisdiction.”

Facts

Appendix 12 of the 1994-98 collective agreement provided, among other things, that the parties would form a subcommittee to “[r]eview the rates provided to bargaining unit students in all ministries and in all programs operated and delivered by the Ontario Government” and “[r]ecommend government-wide rates for students.”

Under Article 33.5 of the 1994-98 collective agreement, wage rates for students were either “specified in the schedules for each Bargaining Unit Collective Agreement” or, where the rates were not specified, students assigned to a position were “paid at the equivalent rate for the position based upon the 1995 rate of pay for that student position” or, if there was no equivalent 1995 rate for a position, the rate was to be set by the ministry subject to negotiation with the Union during salary negotiations. As stated by Tom Wood, the chief negotiator for the Union concerning student wages, student wages were “all over the map” and there was a desire by both sides to adopt a standardized wage rate for students.

Although the subcommittee concerning student wages was established earlier, serious negotiations pursuant to Appendix 12 did not take place until mid-November 1998. On November 14, 15 and 16, 1998, negotiators for the Government and OPSEU met to discuss student wages. At the end of that time, the parties reached a Memorandum of Agreement. That agreement was effective upon signing for the remaining period of the 1994-98 collective agreement and, after further discussion in the negotiations for a new agreement, was adopted as written into the new collective agreement as Appendix 12.

MEMORANDUM OF AGREEMENT

Between

MANAGEMENT BOARD OF CABINET

(Hereinafter called “the Employer”)

And

THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU)

Appendix 12 – Student Wage Rates

1. This Memorandum of Agreement is based on negotiations held pursuant to Appendix 12 of the Collective Agreement between the parties, expiring December 31, 1998, and is subject to the definitions, principles and terms set out in the Collective Agreement.

2. This Memorandum of Agreement will become effective upon being signed by the parties. As per Appendix 12 of the Collective Agreement, this agreement will be presented to the CERC so that recommendations can be appended into the Collective Agreement and implemented for the remaining period of the collective agreement.

3. The provisions of this Memorandum of Agreement will ensure that student wage rates are standardized across the Ontario Public Service for those covered by the Collective Agreement between the parties.

4. Students in post secondary Co-operative Programs will be paid a percentage of the entry level of the appropriate classification specified in the Collective Agreement, as follows:

Work Term Percentage

1 60%

2 64

3 68

4 72

5 76

6 80

5. Students in Special Employment Programs shall be paid at the minimum wage rate of $6.85 per hour.

6. Students in the Ontario/Quebec Summer Student Job Exchange Program shall be paid the rate negotiated with OPSEU prior to negotiations between the Ontario and Quebec Governments (currently $8.25 per hour).

7. Students hired into student positions shall be paid according to a two level job evaluation system. The framework for this system forms Appendix “A” to this agreement.

8. A student hired into a position established in the classified service shall be paid according to the classification range for that position. For greater clarity, this includes students backfilling a classified position during the incumbent’s leave of absence and students filling a vacant classified position for a limited duration.

9. This agreement will represent settlement of any claims and grievances respecting student wages rates, save and except the individual grievances currently on file.

Dated this 16th day of November, 1998.

Appendix “A” of Appendix 12 states as follows:

Appendix A – Framework for Students Wage Rates

1. This framework will be submitted to the Joint System Sub-Committee for its use in developing a Student Job Evaluation System for all student positions to present to CERC for agreement in accordance with Appendix 12 of the Collective Agreement expiring on December 31, 1998.

2. The primary factors underpinning the Student Job Evaluation System are Complexity, Skills/Knowledge and Supervision.

The Employer shall be guided by the factors prescribed by the pay Equity Act in the development of the job evaluation system and shall adhere to all legislative requirements.

The provisions will also recognize the different skill levels required and types of employment opportunities for students in their employment within the Ontario Public Service.

LEVEL 1

Jobs under classification Level 1 will reflect work which is routine and limited in complexity. These jobs may required additional supervision (e.g. tem lead) and do not require a special skill level.

LEVEL 2

Jobs classified at Level 2 will involve work that is more varied and complex in nature. The jobs typically require knowledge form a related area of study and an increased level of skills. These jobs required limited supervision as students are required to work independently. If the job requires a license of certificate (e.g., first aid certificate, equipment operator’s license/certificate), it is automatically assigned to classification level 2.

3. Rates for these two levels are: Level 1: $6.85 per hour

Level 2: $ 8.50 per hour

4 It is understood that the job evaluation system and accompanying pay rates are not arbitrable, pursuant to the Crown Employees Collective Bargaining Act.

Paragraph 1 of Appendix 12 states that it “is subject to the definitions, principles and terms set out in the Collective Agreement.” Article 33 of the collective agreement provides as follows:

ARTICLE 33 – STUDENT EMPLOYEES

33.1 A student is an unclassified employee occupying a “student position” during his or her regular school, college or university vacation period, or in an OPS Special Youth and/or Student Employment Program during his or her regular school, college or university session or vacation period or occupying a “co-operative education student position” under a co-operative education program.

33.2 A “regular vacation period” within the meaning of a student position includes summer vacation, inter-semester breaks, academic breaks, December Holidays, the holidays in Article 47 (Holidays) and a period of time of six (6) months following completion of the requirements for graduation from an educational institution.

33.3 A “student position” or “co-operative education student position” is an unclassified position with terms and conditions specifically applicable to students.

33.4 A co-operative educational training program within the meaning of “co-operative education student position” is a co-operative education training program in a college, university or other post secondary institution.

33.5 WAGE RATES

33.5.1 Student rates in effect on the expiry of the 1994-98 collective agreement, as reflected in the Memorandum of Agreement dated November 16, 1998, shall remain in effect for the duration of the new collective agreements, save and except students employed at Ontario Place, who shall, for the years 1999 and 2000, be paid at the same rates as were paid in 1998.

33.6 The following articles shall apply to student employees as defined in Article 33.1: 1,2,3,4,22 and 80. No other articles shall apply.

The parties agreed to present evidence concerning the negotiating history of the Memorandum of Agreement, subject to the Employer’s objection that such evidence was inadmissible. Tom Wood, the Union’s chief negotiator, and Murray Baker, a member of the Union’s bargaining team, testified on behalf of the Union regarding the negotiations. Nancy Fisher, the Employer’s chief negotiator, testified on behalf of the Employer.

According to Mr. Wood and Mr. Baker, there was discussion at the bargaining table concerning the term “student position.” It was the Union’s view that if a student was hired for a position included in the collective agreement, either a classified or unclassified position, then the student was entitled to all the rights and entitlements of that position under the collective agreement, including wages. The Employer could not, in its view, place a student in a position within the bargaining unit, add the term “student” onto it, and pay student wage rates. It was their position that if a student was hired to perform a job within the classified or unclassified unit, it was not a “student position.” Only positions not included in the collective agreement were “student positions” subject to student rates. Mr. Murray stated that he explained, during bargaining, that the Employer could not just put the label “student” on a position in the bargaining unit and pay them less. He testified, as did Mr. Wood, that the Union negotiators expressed concern regarding erosion of the bargaining unit, both as to classified and unclassified positions.

Mr. Murray agreed, on both direct and cross-examination, that the term “student” in the Memorandum of Agreement incorporates to the definition of “student” under Article 33 of the collective agreement. He agreed that if a student was hired into a “student position” they must be paid in accordance with Level 1or Level 2 and no other rate. He also acknowledged that paragraph 8 was “specific to deal with classified employees, full-time or regular part-time versus unclassified.” He explained that if someone was hired as a student, doing a classified job or most of it, they should be paid the classified rate. In Mr. Murray’s view, if a student occupied a position for which there was a corresponding classified position, the student was entitled to the classified rate of pay. He acknowledged, however, that the language of paragraph 8 did not specifically state that. He testified that the Union saw classified positions becoming unclassified ones and their concern was that the next step would be changing unclassified seasonal positions into student positions.

Nancy Fisher, the Employer’s chief negotiator, testified that the Employer’s primary objective was to standardize wage rates for students across the Ontario public service. Using the parties’ bargaining proposals, she went through the history of the negotiations, beginning with the Employer’s initial proposal. Paragraph 6 of that proposal stated as follows:

6. Students hired into student positions, i.e., those not covered by the above and those not established within the classified or unclassified service, shall be paid minimum wage (currently $6.85 per hour).

She testified that this provision meant that an employee hired into a student position would be paid $6.85 per hour and that it clarified that by “student position” the Employer was not talking about co-op students, students in special programs, Quebec exchange students “or classified positions posted on a temporary basis for which a student just happens to be hired into that position.” She stated that “students hired into student positions” meant a “body of work identified as suitable for student employment by a ministry, with a recruitment effort aimed at students.” Conversely, if a student was hired for a posted, temporary classified position, they would be paid the classified rate.

The Union’s first proposal, at paragraphs 5 and 6, provided:

5. Students hired into student positions, i.e., those not covered by the above and those not established within the collective agreement, shall be paid minimum wage plus $1.55 per hours, but shall not be less than $8.40 per hour.

6. Students employed in positions/classifications identified in the collective agreement shall be paid at the rate for that position/classification.

Ms. Fisher testified that the Union stated, at the bargaining table, that this language meant that if the position had a position title/classification in the collective agreement, it would not be covered by the student wage provision. She stated that the Employer did not agree to that language.

Management’s next proposal concerning this issue was as follows:

7. Students hired into student positions (i.e. those not covered by the above and those not established within the classified or unclassified service) shall be paid according to the following classification system according to a “best fit” determination:

Factor Classification Level 1 Classification Level 2

(A) Complexity limited in complexity substantially more complex:

largely routine varied duties

(B) Skills/knowledge no special skills/ increased level of skills/

knowledge knowledge, generally from

related studies

(C) Supervision additional supervision no additional supervision e.g. team lead

Note: If the job requires a license or certificate (e.g. first aid certificate, equipment operator’s license/certificate). It is automatically assigned to classification level 2.

Wages:

Level 1: Minimum wage

Level 2: T.B.N.

7. If a student is not hired into a cooperative education program, a special employment program or a regular student position (as identified above) but hired into a position established in the classified service, he/she shall be paid within the range for that position.

Ms. Fisher testified that paragraph 7 meant that if a position was posted in the classified service then anyone who gets the job, even if a student, would be paid the classified rate. At that point, they would not be considered a student in a “student position.” She explained that it stems from how the job is recruited. If the employer is recruiting for a student, the position is a student one; if it is recruiting for a temporary classified position, the position is a temporary classified position whether it is filled by a student or not.

The Employer’s counterproposal deleted the Union’s proposal that “Students employed in positions/classifications identified in the collective agreement shall be paid at the rate for that position.” The Union’s second proposal also dropped this provision. Instead, it included the following:

6. If a student is not hired into a cooperative education program or regular student position but hired into a classification established in the classified service, he/she shall be paid within the range for that classification.

The Employer’s third proposal was substantially similar to its second one. It provided that “[s]tudents hired into student positions (i.e. those not covered by the above and those not established within the classified or unclassified service) shall be paid according to a two-step classifications system on a “best fit” basis…. “ It further provided:

10. If a student is not hired into a cooperative education program, a special employment program or regular student position but is hired into a classification established in the classified service, he/she shall be paid within the range for that classification.

The Union’s third proposal stated, in pertinent part, as follows:

7. Students hired into student positions shall be paid according to a three level job evaluation system. The framework for this system forms Appendix “A” to this agreement

8. A student hired into a position established in the classified service shall be paid according to the classification range for that position.

The third level in the evaluation system provided for wages at “70% of the classified rate.” Ms. Fisher testified that the Union explained this level was for a job posted temporarily in the classified service which a student gets, but for which they cannot perform the full duties. It would allow the manager to underfill the position with a student and pay them 70% of the classified rate. Ms. Fisher stated that the Union expressed concern that the duties of a classified position could be manipulated if a student applied so that the position would no longer be a classified position, but a student position, so as to pay the lesser rate. She testified that she responded to the Union negotiators that it would go against government hiring practices to pay based on who gets the job; it must be based on the posting particulars. She stated that if a manager hires for a classified position, whether filled by a student or not, the employer must pay within the classified range.

The Employer’s fourth proposal maintained the two-level evaluation system. It included the following provisions:

9. Students hired into student positions (i.e. those not covered by the above and those not established within the classified or unclassified service) shall be paid according to a two level job evaluation system. The framework for his system forms Appendix “A” to this agreement.

10. Pay for Classification level 1 shall be $6.85 per hour and pay for Classification Level 2 shall be $7.85 per hour. It is understood that the job evaluation system and accompanying pay rates are not arbitrable, pursuant to the Crown Employees Collective Bargaining Act.

11. A student hired into a position established in the classified service shall be paid according to this classification rate for that position.

Ms. Fisher testified that she explained that if a job is posted as either a student or temporary classified job, it is paid accordingly. If a student is hired in a classified position, they are paid the classified rate. She stated that the Union agreed with this and dropped their level three proposal. She also testified that the Union’s concern that a manager could erode the duties of a classified position or just pay less because it was filled by a student was further addressed by the Employer by adding the following words to paragraph 10: “For greater clarity, this includes students backfilling a classified position during the incumbent’s leave of absence and students filling a vacant classified position for a limited duration.” This language was adopted in the final Memorandum of Agreement and, in her view, it was “all inclusive” language and that was communicated to the Union. Mr. Murray and Mr. Baker took the opposite view – that it was not “all-inclusive” language. Ms. Fisher did not recall the Union expressing a concern regarding erosion of the bargaining unit – only a concern that the employer would pay a lower rate to a classified position filled by a student. She also did not recall the Union expressing a concern that management could take a seasonal job, add in brackets the term “student” and then pay the student wage rate. She could not, however, refute their testimony that these concerns were raised

On cross-examination, Ms. Fisher agreed that the Memorandum of Agreement incorporated the term “student position” as defined in Article 33 and that a student must be on a “regular vacation period” as defined in that provision. She agreed that if the student had returned to school and continued to work during the school year, they would not fit the definition of a student under Article 33, although it was individual to the employee and exceptions applied. She further testified that it was not the work performed that mattered but how the position was posted and recruited. In her view, if a position had been a seasonal job for the past five years and a manager decided to post it as a student position, he could do that. The position would then be a student position. She testified that a seasonal employee and student employee may perform the same duties, day in and day out, with the seasonal employee receiving the classified rate under Article 32 and the student receiving the appropriate student wage under Appendix 12. In her view, it all depended on what job was posted, not who was hired. Nor, in her view, was it relevant if the actual duties differed from the posted ones.

Mr. Pierre Pinet, Human Resources Consultant at Fort Henry, also testified on cross-examination that the duties and responsibilities of a seasonal and student employee could be identical. He agreed that the Employer could reduce the number of seasonal employees performing a job while retaining the students performing the same work. In his view, moreover, the duties of a student could go beyond those set out in the position specification because of the inclusion of the words “other duties as assigned.” As he explained, if a student knows how to operate a chain saw, the employer may ask the student to use one even though use of a chain saw is specifically listed in the seasonal manual worker position specification but is not listed in the student one.

There was almost no testimony concerning the meaning of paragraph 4 of Appendix A which states: “It is understood that the job evaluation system and accompanying pay rates are not arbitrable, pursuant to the Crown Employees Collective Bargaining Act.” The only testimony was from Mr. Murray who stated that the “rates are not arbitrable.”

The Union presented the testimony of four students which the parties agreed would be representative of the other grievors in the same positions. Each signed an “Appointment To Staff” contract listing the “Group Type” as “Student” and setting forth their “Student Level” as 1 or 2, with the rate of pay of either $6.75 or $8.50 per hour. In the “Remarks” section, each included the words “Regular Student – Variable Hours per day to a max. of 36.25 per week.” The “benefits enrollment” section in each student contract was left blank.

1. Peter Moyse.

Peter was hired as a student Manual Worker at Fort Henry, at student level 2, $8.50 per hour. He was a second year student at St. Lawrence College. He began work at Fort Henry in May 1999 and worked until the end of August. He was shown the position specification for the seasonal position of Manual Worker and testified that he, as well as his fellow student Manual Workers, performed all of the same duties with the exception of operating a snow blower and clearing snow. He also did not use a chainsaw, but another student did. The students, he testified, worked side-by-side and performed the same duties as the seasonal Manual Worker. They also worked 36.25 hours per week. In terms of supervision, he testified that “99%” of the time, they worked on their own.

2. Ryan Dzierniejko

Ryan was also hired as a student Manual Worker at Fort Henry, receiving $8.50 per hour. He was hired in early May 1999, worked throughout the summer, and then on weekends until the end of September or early October. It is unclear in the record where he attended school or his status as of the Fall. He testified that the six student Manual Workers and the seasonal Manual Worker performed “basically identical” work and all worked together. He was shown the seasonal Manual Worker position specification and stated that he performed most of those duties. In terms of supervision, he testified that there was “not much at all” generally and on weekends, no supervisors were present. He estimated that “90 to 95%” of the time, he and the other manual workers worked independently.

3. Laurie Miller

Laurie worked at Fort Henry during the summers of 1998 and 1999 as a student Admissions Sales & Service Representative. In 1999, she was a fourth year student at Queen’s University, and was planning to continue her studies there. She continued working at the Fort, on weekends, throughout September. She was paid at the rate of $6.85 per hour, both prior to and after Labour Day. Her hours were “variable to 36” but she always received her full hours. She received “very, very little” supervision.

Laurie testified that the position specification for her position listed some, but not all, of the duties she was required to perform. She testified that the duties she performed were identical to that performed by the other students as well as a seasonal employee.

4. Brooke Bradley

Brooke testified that 1999 was the fifth summer that she had worked at Fort Henry. She had held various positions, including Sales Clerk, Switchboard/Reception and Reservations Assistant. In 1999, she worked as a Reservations Assistant, receiving $6.85 per hour and her job, in her view, was a lot more than what was listed in the position specification. A number of her duties were the same as those performed by seasonal employees, although some were different as well. She began in February 1999 and worked until the end of August. At the time, she was a student. She testified that she was not supervised on a regular basis although she did have a supervisor and if a question arose, she would go to her for direction.

The position specifications for all student positions at Fort Henry were revised in 1999 and evaluated pursuant to the two level system set out in Appendix “A” of Appendix 12. The position specification for the student Manual Worker position, student level 1, superseded the position title of Manual Worker in the class title of Manual Worker and title code of 18608. Similarly, the position specification for the student Manual Worker, student level 2, superseded the Manual Worker 18608 position. In the 1994-98 collective agreement, there were two wage provisions for a student “Manual Worker”. One for title code 18608 which applied to “employees with an appointment status of classified, unclassified and student”; the other for Manual Worker, class code GT506 for “employees with an appointment status of student and GO Temp.” According to Mr. Pierre Pinet, Human Resources Consultant at Fort Henry, no student Manual Worker had ever been classified as a Manual Worker GT506 or paid the rate set forth for that position, $12.05 per hour. In the 1999-2001 collective agreement, the position of Manual Worker 18608 applies to “employees with an appointment status of classified and unclassified.” The words “and student” from the 1994-98 agreement were dropped. Similarly, in the new collective agreement, the position of Manual Worker GT506 applies only “to employees with an appointment status of GO Temp.”

The new position specifications for the student Manual Worker positions were effective May 7, 1999 for the student level 1 position and May 3, 1999 for the student level 2 position, although neither was signed off by the General Manager until September 1, 1999.

The position specification for the student Retail Sales Representative, a student level 1 position, was effective January 1, 1999 but not signed by the General Manager until September 1, 1999. It superseded the position of Retail Sales Representative in the class title Merchandiser 2. Similarly, the position of student Admission Sales and Service Representative, a student level 1 position, superseded the position of Admission Sales and Service Representative in the class title Merchandiser 2. In the 1999-2001 collective agreement, the classification Merchandiser 2, UO130, applies to “classifications in the unclassified service, for which there are no equivalent classifications in the Civil Service…”

For the position of Fort Henry Guards, both seasonal, Group 3 positions under the Public Service Act, and student positions, Group 1 under the Public Service Act, were created in 1999, although students filled all of the positions. The position specifications for Military Interpreter 4, Military Interpreter 5 and Military Interpreter 6 superseded positions of the same title under class title Animator 4, Animator 5 and Animator 6, all with class code U0070. Under the 1994-98 collective agreement, the position of Fort Henry Guard, U0070, was for “employees with an appointment status of unclassified and student”. In the 1999-2001 collective agreement, the position of Fort Henry Guard, U0070, was for “employees with an appointment status of unclassified”. The rates, effective 01/01/99 were $ 8.21, $8.78, $9.05 and $10.90.

The evidence showed, however, that one employee, the Captain of the Guard, was paid at $10.90, five were paid at $9.05 (plus one at $8.96 which, according to Mr. Pinet, was a typo), and four employees were paid the rate of $10.31, a rate which does not appear in the collective agreement. According to Mr. Pinet this was done so as to retain the students who had worked the prior years in order to train the newer employees. None of the grievors were from among this group.

The remainder of the Fort Henry Guards were employed at student level 2. Their position specifications, effective January 1, 1999, listed the position as Military Interpreter 1, 2 or 3, superseding the position with the same job title, in the class title of Animator 1,2 or 3, U0070.

There was no position specification introduced for Ms. Bradley’s position, but in her Appointment to Staff agreement, the box “rate comparable to (enter class title)” was listed as “Office Admin.5” and the “job class” was “050AD.” In the 1999-2001 collective agreement, the position Office Administration 5, 05OAD, applies to “employees with an appointment status of classified and unclassified.”

Arguments of the Parties

A. The Union

The Union contends that because the grievors occupied positions established in the collective agreement, whether classified or unclassified, they did not occupy a “student position” within the meaning of Article 33 or Appendix 12. Accordingly, since they were paid a student wage rate, it asserts that they were paid improperly. Instead, it contends that they should have been paid the appropriate classified/unclassified rate.

The Union submits that the negotiating history which led to the Memorandum of Agreement, Appendix 12, clearly demonstrates that positions established within the classified or unclassified service were not to be considered “student positions.” It submits that such evidence should be admissible in this case because the term “student position” is ambiguous and the evidence will assist in interpreting that ambiguity. It is also admissible, the Union asserts, because the evidence is useful in terms of interpreting the collective agreement as a whole. Finally, it asserts that the evidence is admissible at the discretion of the Board. In support of its contentions, the Union cites to Lietch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. Inc. et al. 1968 CanLII 405 (ON HCJ), [1969] 1 O.R. 469 (High Ct. Justice).

The Union argues that the term “student position” is both patently and latently ambiguous. It points out that under Article 33.1, a “student is an unclassified employee occupying a ‘student position’ during his or her regular school, college or university vacation period.” It submits that this definition is circular and unclear. Nor, in its view, is this uncertainly clarified by Article 33.3, which states that a ‘”student position”…is an unclassified position with terms and conditions specifically applicable to students." It does not assist, it contends, because what is meant by “terms and conditions specifically applicable to students” is itself unclear.

The Union contends that “terms and conditions of employment” is a very broad concept and includes what employees do on a day-to-day basis. In support of this position, the Union cites to Re Borough of Scarborough and Scarborough Firefighters’ Association, Local 626, I.A.F.F. et al. 1979 CanLII 1832 (ON HCJ), [1979] 26 O.R. (2d) 298 (Div. Ct.) and Re Liquor Contol Board of Ontario et al. and Ontario Liquor Board Employees’ Union et al. 1980 CanLII 1857 (ON HCJ), [1980] 29 O.R. (2d) 705 (Div. Ct.). Given the students’ evidence that they perform identical work to seasonal employees, it submits that their “terms and conditions of employment” are not “specifically applicable to students” within the meaning of Article 33.3.

The Union also submits that the term “regular vacation period” is ambiguous, particularly as it has been applied. It notes that Ms. Fisher acknowledged that a student working outside of their “regular vacation period” would not meet the definition of student, yet a number of the students who testified stated that they worked in September and October or as early as February.

The Union argues that there is sufficient ambiguity concerning the term “student position”, both patent and latent, to allow the evidence concerning negotiating history into the record and to rely on it in interpreting what was meant by the term.

The negotiating history, it argues, demonstrates that the definition of “student position” supplied by the Employer during negotiations is the proper meaning of the term. It submits that throughout the negotiations, the Employer defined “student position” as “i.e. those not covered by the above and those not established within the classified or unclassified service.” (emphasis added) Based on this definition, which it asserts was accepted by both sides, the Union argues where a position is established in the classified or unclassified service, it cannot be a “student position” subject to Appendix 12. It contends that all of the grievors’ “positions” - Manual Worker, Merchandiser 2, Office Administration 5, Animator - were “established within the classified or unclassified service” and thus were not, and could not be, “student positions.” It submits that based on this definition, it is the job title or position which governs and the fact that a student filled the position is irrelevant.

The negotiating history, it argues, also demonstrates that the Union’s concern about erosion of the bargaining unit was discussed and addressed. It argues that the evidence of Mr. Wood and Mr. Baker, who clearly recollect discussing this concern with the Employer, should be preferred over the evidence of Ms. Fisher who could not recall it but could not refute their assertion. It contends that Mr. Wood and Mr. Baker both addressed the Union’s concern that the Employer could take a position established in the collective agreement, slap a label of “student” on it, and then pay the reduced student rate. Yet, it submits that this is precisely what the Employer did in this case, creating the potential for erosion of the bargaining unit. The Union asserts that the Employer’s doing so violates the collective agreement by improperly paying the grievors the student wage rate instead of the rate required for the position in the collective agreement.

The Union argues that under the Employer’s approach, the rights of seasonal employees to recall are put at risk. The evidence, it submits, showed that the Employer took the view that it has the right to decide that a position should no longer be a seasonal one but a student job. As long as it was posted as a “student position”, a student could be hired and paid the student rate. Given the significant difference in pay between a seasonal position and student one, and that identical work performed by the students, the Union contends that the recall rights of seasonal employees will be undermined if the Employer is allowed to place the label “student” on jobs established within the classified or unclassified service.

Its submits that of all the employees in the bargaining unit, students and seasonal employees are clearly the most vulnerable. It argues that this Employer has, in the past, blatantly ignored the collective agreement as it pertains to student wages by paying rates that do not appear in the collective agreement. It asserts that the Employer takes a “catch me if you can” approach to student wages which should not be allowed.

In the alternative, the Union asserts that the rates paid to some of the students were improper under the two level job evaluation system based on the complexity of the work performed and the fact that the students work with little or no supervision. Based on these facts, the Union submits that they should be paid at the higher, Level 2, student rate. It argues that Paragraph 4 of Appendix A, which states that “the job evaluation system and accompanying pay rates are not arbitrable, pursuant to the Crown Employees Collective Bargaining Act” does not deprive individual students from grieving the wage rate assigned to them. It also asserts that they are entitled to additional wages for their work while not on a “regular vacation period.”

B. The Employer

The Employer first contends that the grievances, although phrased in terms of improper wage rates, are actually disguised classification grievances over which the Board no longer has jurisdiction. It submits that the Union’s contention that the grievors perform all of the same tasks as set out in the position specification of the seasonal employees but are improperly paid for their work, demonstrates that what is truly at issue here is a classification issue. As such, it contends that the Board has no authority or jurisdiction over these grievances.

The Employer next contends that the grievances should be dismissed because there is no violation of the collective agreement. It asserts that what the Union is seeking is to change the student wage rate provisions of the collective agreement, something which the Board cannot do.

The Employer contends that the purpose of Appendix 12 was to standardize wage rates for students across the Ontario public service and that the Memorandum of Agreement accomplished that goal. Instead of student rates being set out in each individual bargaining unit, or being paid the 1995 rate for the student position, or being set by a Ministry, students hired into “student positions” cross the government were to be paid one of two rates based on the criteria set forth in Appendix A of Appendix 12. All of the contractual language contained in the 1994-98 collective agreement that led to confusion was removed and what was agreed to was Appendix 12.

In its submission, the language of Appendix 12 is clear on its face and the evidence presented concerning the negotiating history is inadmissible. The Employer asserts that there is no patent or latent ambiguity in relation to the term “student position” or the meaning of Appendix 12 and consequently no reason to resort to extrinsic evidence. In support of its contention, the Employer cites to OPSEU (Craig/Grimes) and Ministry of Transportation, GSB No. 2252/91 et al. (Dissanayake).

The Employer further argues that even if the negotiating history is admitted into evidence, it supports the Employer’s position. The Employer contends that the interpretation now espoused by the Union – that students employed in positions/classifications identified in the collective agreement shall be paid at the rate for that position/classification – was dropped by the Union during negotiations and does not appear in Appendix 12. Instead, what was agreed to was paragraph 8, which states as follows:

8. A student hired into a position established in the classified service shall be paid according to the classification range for that position. For greater clarity, this includes students backfilling a classified position during the incumbent’s leave of absence and students filling a vacant classified position for a limited duration.

This language, the Employer argues, specifically limits the times that students hired into a position established in the classified service is to be paid the classified rate. It submits that the language was drafted by the Employer to address the Union’s concerns and was specifically stated to be limited. It further argues that where the parties intended that other matters might be included, they used language to that effect such as in Article 1.2, which states: “For greater certainty, such employees include classified and unclassified employees, students, GO Temps and such other employees as may be mutually agreed.” (emphasis added) It asserts that similar, potential expansion language was not included in Appendix 12, paragraph 8. It also asserts that the Union had the opportunity, during negotiations, to add further examples to this language but did not. Instead, the Union agreed to language as written.

The Employer also asserts that negotiations show that the term “student position” was to be defined by Article 33, meaning an unclassified position with “terms and conditions specifically applicable to students.” It argues that there is nothing unclear about that term. Student positions are Group 1 hires, under the Public Service Act, with terms set out in their individual contracts of employment. They must be a student, on a regular vacation period, and they may work up to a maximum of 36.25 hours per week. There is no guarantee of hours and they cannot work overtime. In contrast, the Employer asserts that seasonal employees have terms and conditions set out in the collective agreement, in Article 32, including recall rights and benefits. They also, in the Employer’s submission, have terms and conditions of employment which apply only to seasonal employees. Likewise, Article 31 applies to unclassified employees other than seasonal, student or GO temp employees.

In the Employer’s view, the Union is asking the Board to rewrite Appendix 12 to state that “a student hired into a position title identical to a position in the classified or unclassified service shall be paid per the classification range of that position.” It argues that this was not the language agreed to, nor can it reasonably bear that interpretation. It submits that wages in the public service are not based on title. Instead, it asserts that it is the nature of the hiring that determines the employee’s status and which terms and conditions apply.

The Employer contends that if a student is hired into a “student position”, they are governed by Article 33, regardless of their position title or job duties. Conversely, it asserts that if a student is hired into a classified position, then they are a classified employee. The Employer submits that each of the grievors was hired into a student position. In support of its contention, the Employer cites OPSEU (McConnell) and Ministry of Natural Resources, GSB No. 587/94 (Dissanayake). It submits that it is for the Employer, pursuant to the management rights clause, to determine the kinds of positions required to meet its operational requirements.

The Employer takes issue with the Union’s characterization of its conduct as a “blatant disregard” of the collective agreement. It submits that there had been substantial confusion regarding student wage rates and that it was for that reasons that the parties entered into negotiations to standardize student wage rates. In its view, acceptance of the Union’s position would lead directly back to confusion and lack of uniformity in regard to student wages. It asserts that the grievors were properly paid under Appendix 12 and the grievances should be dismissed.

Finally, as the Union’s claim that some of the grievors should have been paid at the Level 2 rate, rather than at Level 1, the Employer submits that such grievances are precluded by virtue of Paragraph 4 of Appendix A.

Decision

A. Is this a classification grievance in disguise?

I conclude that the grievances in this matter are not classification grievances in disguise. Instead, the individual and Union policy grievances raise a question of interpretation of Appendix 12 and whether the grievors were properly paid as students. The evidence led by the Union concerning the duties of the grievors – that they performed the same duties as the seasonal employees – was primarily to support one of the Union’s argument of improper payment, viz., that the students did not have “terms and conditions of employment” applicable only to students under Article 33.3 so they cannot, by definition, be in a “student position”. It does not and did not change the nature of the claim into a classification grievance. Nor can these grievances be viewed as classification grievances because the Union is asserting that the grievors should be paid the classified or unclassified rate, rather than the student rate. The Union’s position is based on an interpretation of Appendix 12, not on the position that the grievors were improperly classified, and that matter is clearly arbitrable.

B. Were the grievors improperly paid?

The grievors were all paid at student wage rates, either Level 1 or Level 2. Whether or not the grievors were properly paid depends on the meaning of Appendix 12, particularly paragraphs 7 and 8. Those provisions state as follows:

7. Students hired into student positions shall be paid according to a two level job evaluation system. The framework for this system forms Appendix “A” to this agreement.

8. A student hired into a position established in the classified service shall be paid according to the classification range for that position. For greater clarity, this includes students backfilling a classified position during the incumbent’s leave of absence and students filling a vacant classified position for a time limited duration.

Under the Union’s interpretation, the grievors were not hired into “student positions” but were hired into positions “established in the classified service” and must be paid according to the classification range for that position. Under the Employer’s interpretation, they were hired into “student positions” and properly paid a student wage rate.

The first question that must be answered is whether the language of Appendix 12 is ambiguous. The general rule is that where the terms of a collective agreement are clear and unambiguous on their face, arbitrators should not consider extrinsic evidence in order to decide the actual intent of the parties. As set forth in OPSEU (Craig/Grimes) and Ministry of Transportation (1993), GSB No. 2662/91 et al. (Dissanayake), at p. 8, evidence of negotiating history “may only be used by the Board as an aid to interpreting the language of the settlement, if the Board finds the language used to be patently or latently ambiguous.” It continued at pp. 8-10:

Patent ambiguity is where the language used is on its face ambiguous. This would be the case where particular words or phrases used have different possible meanings. …

Latent ambiguity is where the language, though clear on its face, creates ambiguity in application and in practice. …

In our view, for there to be a finding of latent ambiguity in terms of ambiguity in application, the party alleging ambiguity must not only establish that the language leads to irrational or inconsistent results, but that such irrationality and inconsistency was such that it is reasonable to conclude that the parties could not possibly have intended such results.

Applying the above-definitions, I conclude that Appendix 12 is not patently ambiguous. The words “students hired into student positions” and “students hired into classified positions” are not ambiguous on their face, but instead, when considered in light of Article 33 and the collective agreement as a whole, they a clear meaning.

Paragraph 1 of Appendix 12 states that the Memorandum of Agreement is subject to the “definitions, principles and terms set out in the Collective Agreement.” Article 33.1 states that “[a] student is an unclassified employee occupying a ‘student position’ during his or her regular school, college or university vacation period. Article 33.3 states: “A ‘student position’…is an unclassified position with terms and conditions specifically applicable to students.” Although the words “terms and conditions of employment” are broad and include, as the Union contends, an employee's job duties, there clearly exist terms and conditions of employment which apply only to students. First and foremost, they must be students. In addition, their hours of work are variable, up to a maximum of 36.25 per week. They are not eligible for overtime. They receive no benefits, no seniority and no right to recall as do seasonal employees or other unclassified employees pursuant to Articles 32 and 31 of the collective agreement. Thus, although there is overlap in the terms and conditions of student employees and other unclassified employees in terms of what they do, a “student in a student position” is in “an unclassified position with terms and conditions specifically applicable to students.” Accordingly, the words “student hired into a student position”, when considered in light of Article 33, is not ambiguous on its face.

Likewise, the words “student hired into a position established in the classified service…” are also not ambiguous. Under the collective agreement, an employee hired into a “position established in the classified service” is a classified employee subject to all of the rights set out in the collective agreement. A classified employee, in the collective agreement, is distinguished from unclassified employees, students and GO-Temps and enjoys far greater rights under the agreement.

Nor, under the definition of latent ambiguity set forth in OPSEU (Craig/Grimes), supra, is there a latent ambiguity. I cannot conclude that the language adopted in Appendix 12 leads not only to an “irrational or inconsistent result, but that such irrationality and inconsistency was such that is reasonable to conclude that the parties could not possibly have intended such results.” Although the Union did not argue this precisely, it did argue that it was unfair that student employees performing exactly the same job receive different wage rates simply because they are students and that students and seasonal employees are the most vulnerable employees in the bargaining unit.

Assuming, for the moment, that it is irrational or at least inconsistent to pay student employees performing the same work as seasonal or classified employees substantially different wages, I cannot conclude that the parties could not have possibly intended such a result. Ever since students have been covered by the Crown Employees Collective Bargaining Act, and surely long before that, students have been paid different and lesser rates than other unclassified or classified employees. The November 1998 negotiations were to standardize student wage rates and the rates negotiated were substantially less than the wage rates provided to classified employees and other unclassified employees under Articles 31 and 32. The rates negotiated were more than the Employer originally wanted to pay but they were far less than the rates paid to other classes of employees. Consequently, I cannot conclude that the parties “could not possibly have intended such [a] result.”

Accordingly, because the meaning of “student positions” and “classified positions” is not ambiguous, the evidence concerning bargaining history should not be admitted. However, even if I am wrong and Appendix 12 may be considered ambiguous, either patently or latently, the negotiating history does not aid the Union. This is because the interpretation sought by the Union was raised during the negotiations but was not adopted in the Memorandum of Agreement.

In its first proposal, the Union included the following two provisions:

5. Students hired into student positions, i.e. those not covered by the above and those not established within the collective agreements, shall be paid minimum wage plus $1.55 per hour, but shall not be less than $8.40 per hour.

6. Students employed in positions/classifications identified in the collective agreement shall be paid at the rate for that position/classification.

These provisions, particularly paragraph 6, is precisely the interpretation the Union contends should be given to Appendix 12: if a position/classification is identified in the collective agreement, students employed in those positions/classifications must be paid the rate for it – not the student rate. These provisions, however, were not adopted.

Instead, the parties agreed that “[s]tudents hired into student positions shall be paid according to a two level job evaluation framework…” which, through paragraph 1, incorporates the definitions included in Article 33. They also agreed to paragraph 8:

A student hired into a position established in the classified service shall be paid according to the classification range for that position. For greater clarity, this includes students backfilling a classified position during the incumbents’ leave of absence and students filling a vacant classified position for a limited duration.

In my view, it is very significant that the parties used the words “hired into” in both paragraphs 7 and 8 of Appendix 12. This wording indicates that it is the position for which the student is hired that matters. If a student is “hired into” a student position, they are paid the student rate. If they are “hired into” a position established in the classified service, they are paid the classified rate. This language is quite different than that found in the Union’s initial proposal which used the words “students employed in positions/classifications identified in the collective agreement” That language indicates that the determinative factor is whether the position/classification title is one identified in the collective agreement – not the nature of the position which they were “hired into.”

The words “hired into” are also consistent with the parties’ approach to wages in the collective agreement as a whole and in the public service. In the collective agreement, wages or salary levels apply “to employees with an appointment status of classified or unclassified.” It is based on the employee’s appointment status – classified or unclassified. In the Ontario public service, the rights and entitlements of an employee are based on the status of their position for which they are hired, be it classified, unclassified, seasonal or student. Thus, a student hired into a classified position should receive the classified rate and all applicable benefits under the collective agreement. A student hired into a seasonal position should receive, pursuant to Article 32, the classified rate and contractual benefits. A student hired into a student position is paid per Article 33.5 – Appendix A of Appendix 12. Consistent with this approach is the fact that the words found in the wage provisions in the 1994-1998 collective agreement which stated that the wage scales “apply to employees with an appointment status of classified, unclassified and student” were changed in the new collective agreement to delete the words “and student.”

In addition, the wording of paragraph 8 of Appendix 12 was expanded to include the words “[f]or greater clarity, this includes students backfilling a classified position during the incumbent’s leave of absence and students filling a vacant classified position for a limited duration.” The Union, during negotiations, had the opportunity to add additional examples or include potential expansion language but did not.

Further, the interpretation sought by the Union would, in effect, change the agreement of the parties as well as, to a significant degree, defeat the intent of the parties to standardize student wage rates. Instead of paying students one of two wage rates as set out in Appendix “A”, students hired into a position title that exists in the classified or unclassified service would be paid the classified rate. That would, in effect, adopt language, which was dropped from the bargaining table. It would also be a throw back to the manner in which student wage rates were determined in the prior collective agreement – based on the position title listed in the collective agreement. The parties, in the new agreement, moved away from that approach and adopted, instead, a two-level framework in order to standardize wages for students across the Ontario public service.

In the instant case, I conclude that the grievors were students hired into “student positions” within the meaning of paragraph 7 of Appendix 12 and were appropriately paid at student wage rates. They were not hired into “positions established within the classified service” within the meaning of paragraph 8 of Appendix 12.

My conclusions here are not meant to minimize or trivialize the concerns of the Union regarding potential erosion of the bargaining unit. The testimony of Ms. Fisher and Mr. Pinet was that the employer has the unfettered right to determine that instead of employing ten seasonal manual workers next year and ten student manual workers, it will hire five seasonal employees and fifteen student ones. That, in my view, would be an erosion of the bargaining unit as the Union fears. The Employer argued that there is no limitation on its right to do this since the Union could have, but did not, negotiate language protecting against erosion of the bargaining unit. I cannot agree. Clearly management’s right to act under Article 2 is subject to rights established in the collective agreement, including the recall rights of seasonal employees. In light of the recall rights of seasonal employees, the Employer would have to have a legitimate, bona fide reason for its decision to abolish seasonal jobs and replace them with student ones.

I also have some genuine concerns about the Employer’s view that the duties listed in the position specification are irrelevant, that students and seasonal employees may perform exactly the same duties regardless of the position specification and that the phrase “other duties as assigned” may be all encompassing. In my view, it is not proper to hire a student into a student position, with specified lesser duties and pay, and then assign them, in fact, to a more complex and responsible position. Just like a posting, the Employer is bound to the position specification for which the employee is “hired into” and the words “other duties as assigned” cannot be all encompassing. To allow that would enable the Employer to manipulate a “student position” in the way the Employer agreed, during negotiations, would not happen. According to Ms. Fisher, the Employer is bound by its posting. Likewise, the Employer is bound by the “student position” into which the student is hired.

The testimonial evidence presented on this issue, however, was not conclusive. Some of the duties performed by the students were identical to those performed by seasonal employees (and the evidence was strongest in regard to the manual workers), but some duties and responsibilities were different.

Finally, I am also troubled by the Employer’s unilaterally paying a wage rate for Fort Henry Guards which is not found in the collective agreement. That issue is not before me, but it does indicate, as the Union argued, a surprising disregard of the collective agreement. Although I can sympathize with the Employer’s need to retain experienced staff, it cannot unilaterally ignore the negotiated wage rates. If the negotiated wage rates create a problem, the matter should be discussed with the Union to determine if a negotiated solution is possible. If not, the Employer must still operate within the requirements of the collective agreement.

C. May students grieve the student rate they are assigned?

In the alternative, the Union argues that several of the grievors, including Ms. Bradley and Ms Miller, should have been paid at the Level 2 student rate, particularly in light of the complex nature of their responsibilities and the minimal supervision exercised. It submits that paragraph 4 of Appendix A which states that “it is understood that the job evaluation system and accompanying pay rates are not arbitrable, pursuant to the Crown Employees Collective Bargaining Act” does not mean that individual students may not challenge the rate assigned. Instead, it asserts that it means that the system and the two negotiated rates are not arbitrable.

The Employer contends that the paragraph 4 means that individual student employees cannot arbitrate the assigned rates and, accordingly, this argument must fail.

It is somewhat ironic that so much negotiating history was provided as to the meaning of Appendix 12, which I conclude is not ambiguous, and almost no history was presented concerning paragraph 4 of Appendix A which I find is patently ambiguous. It easily gives rise to two interpretations – the one espoused by the Union and the one espoused by the Employer. The only negotiating history on this provision was supplied by Mr. Murray who testified that it meant that the “rates are not arbitrable” which I do not find particularly helpful.

A basic rule of interpretation of contracts is that parties are presumed to have intended that negotiated provisions have some meaning. Relying on this basic rule, I conclude that the interpretation proposed by the Employer is the appropriate one because it gives meaning to paragraph 4 of Appendix A.

The parties jointly negotiated both “the job evaluation system and the accompanying pay rates” set forth in Appendix A. They also agreed that neither the job evaluation system nor the pay rates would be subject to arbitration under CECBA. That provision can only mean that individual students cannot arbitrate the rate assigned. Without such language, students would have the right to grieve the assigned rate under Article 22, one of the few collective agreement provisions that apply to students. It makes sense that given the limited duration of student positions and the relatively small difference in the two wage levels, that both sides would exclude such matters from arbitration. In contrast, the more limited interpretation proposed by the Union would render the provision virtually meaningless. This is because having just negotiated the job evaluation system and the rates, they would not be submitting such matters to arbitration. Nor would they require contractual language to achieve that end. As a result, no purpose would be served by including this language unless it was meant to preclude individual grievances.

Once again, however, even if I am wrong, the evidence falls short of establishing, on a balance of probabilities, that Ms. Bradley or Ms. Miller should have been paid at Level 2. Although the work they did was significant and responsible work, it is not clear that it was complex or that they worked without supervision.

D. Work beyond Regular Vacation Periods.

The evidence suggests that Ms. Miller and Ms. Bradley, as well as Mr. Dzremejko, worked beyond the “regular vacation period”. I use the term “suggests” because the exact vacation dates of their respective schools was not in the record. It seems likely, however, that Queen’s University, attended by Ms. Miller, did not have a “regular vacation period”, as defined in Article 33.2, in September. It also seems likely that the educational institution attended by Ms. Bradley did not have an on-going “regular vacation period” between February and May, 1999. As noted previously, it is unclear where Mr. Dzremejko attended school or his status as of the Fall of 1999. Yet they worked and were paid as “students” in “student positions” during that time.

By definition, a “student” is “an unclassified employee occupying a ‘student position’ during his or her regular school, college or university vacation period…” The words “regular vacation period” are defined in Article 33.2 to include “summer vacation, inter-semester breaks, academic breaks, December Holidays, the holidays in Article 47 (Holidays) and a period of time of six (6) months following completion of the requirements for graduation from an educational institution.’ It does not include weekends during a semester. The only students who may work in “student positions” during the regular semester are students in “an OPS Special Youth and/or Student Employment Program.” Otherwise, a student cannot occupy a “student position” during periods outside a “regular vacation period”.

This does not mean, however, that the position automatically converts to a seasonal or classified position. What it means is that the parties will have to negotiate this issue – their status for work outside the “regular vacation period” and the rate of pay.

E. Other Alleged Violations

The Union alleges that until the position specifications for the students were revised in September 1999, they were working under the prior position specifications and should have received the rates set forth in the 1994-98 for Fort Henry Guard and for student Manual Worker GT506. Under the specific facts of this case, I cannot agree.

The new student rates set out in Appendix 12 were effective immediately upon the signing of the Memorandum of Agreement on November 16, 1999. They were included, unchanged, in the new collective agreement. The new agreement, although not signed until June 25, 1999, states that the agreement “covers the period from January 1, 1999 until December 31, 2001”and that “the effective date of any changes to the term of this Central Collective Agreement from the previous Central Agreement, unless otherwise indicated, shall be March 27, 1999.” The new Appendix 12 did not change the prior agreement, as amended by the November 16, 1999 Memorandum of Agreement. Further, the effective date of the revised position specifications was January 1, 1999. The fact that they did not receive final approval until September is irrelevant. Accordingly, at all relevant times, the grievors worked under the revised student position specifications and were not entitled to the rates set out in the 1994-98 collective agreement.

Conclusion:

For all of the reasons set forth above, I conclude that the grievors were “hired into student positions” within the meaning of Appendix 12 and properly paid. The only exception to this is for the periods outside of the students’ “regular vacation period.” As to that issue, the parties are directed to negotiate. I shall remain seized.

Dated at Toronto, this 1st day of December, 2000.