Ontario Public Service Employees Union (Hannah) v. The Crown in Right of Ontario (Ministry of Transportation), 2002 CanLII 45778

GSB#2115/99

UNION#00D178

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Hannah)

Grievor

-and-

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE Dan Harris Vice-Chair

FOR THE UNION Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER Meredith Brown Counsel Management Board Secretariat

HEARING July 31, 2002.

DECISION

The Proceedings

In this matter the Union grieves on behalf of Tim Hannah. Mr. Hannah is a Correctional Officer who successfully bid on a job posting for the position of Driver Examiner with the Ministry of Transportation. The Driver Examiner position has a top step wage of $755.13 per week, more than $100.00 per week less than Mr. Hannah earned as a Correctional Officer. The Union says that Mr. Hannah should have continued to be paid at the Correctional Officer rate while he worked as a Driver Examiner by virtue of Article 8.3 of the collective agreement. The Ministry said it is absurd to apply the wage protection scheme of Article 8.3 to an employee who voluntarily applies for and is thereby temporarily assigned to a lower rated position.

The Facts

The parties submitted the following Agreed Statement of Fact:

1. Tim Hannah is a full time classified Correctional Officer 2 at Millbrook Correctional Centre.

2. The Ministry of Transportation posted competition MTSR/99-06T on October 20, 1999, for 9 temporary Driver Examiner positions, various locations, each 18 months duration.

3. Mr. Hannah submitted his application for the Driver Examiner position by fax November 2, 1999.

4. Mr. Hannah was awarded the position, confirmed by letter from the Ministry of Transportation dated December 29, 1999.

5. Mr. Hannah worked as a Driver Examiner from January 10, 2000 to March 27, 2000.

6. For the period he worked as a Driver Examiner, the Ministry of Transportation paid Mr. Hannah $755.13 per week, the top step of the Driver Examiner classification.

7. The salary in Mr. Hannah's home position, the top step of the Correctional Officer 2 classification, for the same period was $21.89 per hour (x 40 hour week = $875.60 per week).

8. For the period he worked as a Driver Examiner, work was reasonably available for Mr. Hannah in his home position of Correctional Officer 2.

9. Mr. Hannah filed a grievance February 16, 2000.

The Submissions of the Parties

The Union submitted that Article 8.3 is clear on its face. The article contains four preconditions to trigger its application. One must be an employee, who is temporarily assigned, in a classification with a lower maximum salary, when there is work available in the position from which the employee was assigned. If those conditions are met, the Employer is obliged to pay the employee the rate applicable to the classification from which he or she was assigned. The Union said that Article 8 does not distinguish between temporary assignments made directly by the Employer or those made as the result of a job competition. Accordingly, Article 8.3 ought to apply to the grievor. The Union also reviewed the provisions of Article 7, the general Pay Administration provisions, to like effect.

The Employer submitted that the rules of construction provide that the intention of the parties is to be determined by the language chosen to express that intention. However, when the language leads to an absurd result, it cannot be that the parties intended such absurdity. In the current context, it is absurd that an employee could voluntarily apply for a posted position at a lower pay rate, win the competition and have their higher, home position rate maintained. It was submitted that Article 8.3 is meant to protect the wage rate of an employee who is required by the Employer to perform lower-rated work, when work is available for that employee in their home position. The Employer urged the Board to take a purposive approach and determine the meaning of Article 8.3 in the context of the entire collective agreement, including Articles 7 and 24. The Employer relied on the following authorities: Massey-Harris-Ferguson and UAW (1955), 5 L.A.C. 2123 (MacRae); Belleville Police Services Board and Belleville Police Association (2000), 2000 CanLII 29512 (ON LA), 91 L.A.C. (4^th) 99 (Goodfellow); Weyerhauser Chapleau and I.W.A. - Canada (2001), 2001 CanLII 62056 (ON LA), 98 L.A.C. (4^th) 150, (Tacon).

In reply, the Union submitted that a plain reading of Article 8.3 did not lead to an absurd result in these circumstances. When the Employer chooses to fill a vacancy temporarily and an employee chooses to apply, the parties have agreed that their wage rate will be protected. It was said that there is a mutual benefit in having employees broaden their experience. Further, even if the result might be seen as inequitable for the Employer, that is not the same as absurdity. There is no ambiguity in the language and it ought to be applied. The Union relied on: OPSEU (Ireson) and Ministry of Attorney General, GSB 69/05 (Gray).

Reasons for Decision

Article 8.3 reads as follows:

When an employee is temporarily assigned to the duties and responsibilities of a position in a classification with a lower maximum salary where there is work reasonably available for him or her in the position from which he or she was assigned, he or she shall continue to be paid at the rate applicable to the classification from which he or she was assigned.

It is well established that the intention of parties to a collective agreement, or other written contract, is to be ascertained from the words in the written agreement. It is also well established that the words of the agreement are to be taken in the context of the provision at issue and the agreement as a whole. In the exercise of the latter consideration, one may look to the purpose of the provision at issue. Here, the parties are essentially agreed that the purpose of Article 8 is to provide a means of ascertaining the wages to be paid to an employee who is temporarily assigned to perform the duties of a position that is not their home position. The issue that is joined in this matter is whether the temporary assignments covered by Article 8 include the performance of the duties of a position which the employee has sought out and been awarded by way of a job competition.

First, reading Article 8.3 on its own leads me to the conclusion that the grievor does not meet all of its requirements. In order to continue to be paid as a Correctional Officer, there must be "work reasonably available for him in the position from which he was assigned." Again, the preserved wage rate is the "rate applicable to the classification from which he was assigned." The grievor was not assigned from the classification of Correctional Officer to the position of driver-examiner. He took a temporary assignment. There is an active, two-step component to the meaning of "assigned" that arises from the very language of Article 8.3. The active component is the Employer assigning an employee from one position to another. Here, the Employer has permitted the employee to leave the Correctional Officer position to take the Driver Examiner position. That is not an assignment "from" one position "to" another. The grievor certainly was temporarily assigned "to" the Driver Examiner position, but he was not assigned "from" the Correctional Officer position. He was permitted to take his leave.

Second, the plain meaning I take from the words of Article 8 is entirely consistent with, and supported by, the context of Article 8 and other provisions of the collective agreement. Taken as a whole, Article 8 lays out a scheme for determining the applicable wage rates when an employee is assigned to perform, on a temporary basis, the duties and responsibilities of a position other than their own. Each of the paragraphs of Article 8 carries expressly or by implication the notion of the assignment being from one position to another; that is, an active intervention by management that is outside of the job competition process. Indeed, Article 8.6.1 buttresses that meaning by setting out when Article 6, the job posting provisions, must be followed. Article 8.6.1 puts limits on the Employer's right to make the direct assignments that are the subject matter of Article 8 as a whole.

Turning to Article 6, it is an express limitation on the Employer's right to make direct assignments and is instructive as to what the parties intended when they use the word "assign". Articles 6.6.1 and 6.6.2 provide for permanent "assignments" to positions, rather than posting to positions. They read as follows:

6.6.1 With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where:

(a) the vacant position is identical to the position occupied by the employee, and

(b) the vacant position is in the same ministry as the position occupied by the employee, and the provisions of Articles 6.1, 6.2, 6.3, 6.4 and 6.5 shall not apply

6.6.2 The assignment of an employee to a vacancy in accordance with Articles 7 (Pay Administration), 20 (Employment Stability), 25 (Leave – Special), 42 (Long Term Income Protection), 50 (Pregnancy Leave) and 51 (Parental Leave) shall have priority over an assignment under Article 6.6.1

Accordingly, "assignments" are exceptions to job postings. Article 6.6.2 sets out examples in the collective agreement of permanent assignments, all of which are exceptions to the requirement to post the job. Article 7 provides for the wages to be paid in such permanent assignments, while Article 8 does the same for temporary assignments. Those "assignments" are direct assignments by the Employer outside of the job posting process. Here, the Grievor posted to the job. He was not "assigned" as that term is understood between the parties.

Finally, when one posts to a job, one posts to all of its terms and conditions including the rate of pay negotiated by the Union for that position. Article 8 was not intended to cover circumstances such as those before the Board in this matter.

The Decision

The grievance is denied.

DATED AT TORONTO this 14^th day of August, 2002.