GSB# 1873/97, 1735/01, 1796/01, 0362/02, 0363/02, 0364/02

UNION# 98B028, 02B198, 02B207, 02B364, 02B365, 02B366

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(McPhail et al.)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of the Attorney General)

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

Mark Barclay

Grievance Officer

Ontario Public Service Employees Union

• and -

John Brewin

Counsel

Ryder Wright Blair & Doyle

FOR THE EMPLOYER

Carol Ann Witt and Mary Pat Moore

Counsel

Management Board Secretariat

HEARING

January 29, 2003.

DECISION

There were dozens of grievances filed by unclassified employees who work in the courts around the province asserting that they have been improperly denied conversion to full time status. Most of the grievors are working either as court reporters or court clerks. During the course of mediation it became apparent that the issues would not be resolved between the parties and it was agreed to expedite the litigation of outstanding matters. Rather than putting individual fact situations before me the parties elected to submit three questions for determination. It is hoped that the answer to these questions will allow the parties to ascertain whether the grievors are entitled to be converted to full time status. For the purposes of this decision it is understood that “unclassified” means those unclassified employees who are on-call as required employees.

It was common ground that many of the grievors have worked as unclassified employees for many years. While it is true that the Ministry of the Attorney General has some full time classified court reporters, the vast majority are unclassified.

The relevant provisions of the collective agreement are as follows:

CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS

31.15.1.1 Where the same work has been performed by an employee in the Unclassified Service for a period of at least two (2) consecutive years, except for situations where the unclassified employee is replacing a classified employee on a leave of absence authorized by the Employer or as provided for under the Central Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work.

31.15.1.2 Where the ministry has determined that it will convert a position in accordance with Article 31.15.1.1, the status of the incumbent in the position will be converted from unclassified to classified, provided that the incumbent has been in the position in questions for at least two (2) years.

31.15.2 For the purpose of article 31.15, “full-time” shall mean a minimum of one thousand seven hundred and thirty-two and three quarter (1,732.75) straight-time hours or one thousand nine hundred and twelve (1,912) straight-time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by an unclassified employee while he or she is replacing a classified employee who is on an authorized leave of absence shall not be included in computing the annual hours worked by the unclassified employee.

QUESTION # 1

Without prejudice to the Employer’s right to object to that the issue is inarbitrable, is the Employer required to pool the hours of unclassified employees to fulfill the requirements of Article 31.1.5.1.1?

It was the Union’s position that the Employer should be obliged to pool the total number hours of the unclassified employees in this context. The most straightforward method to apply would have the Employer total all of the work hours of unclassified employees who are performing the same work under a unified administration, for example, in the London courts. The hours of the leaves of absence contemplated in the third question should be added to this amount and then the total would be divided by the number of hours of a full time employee, that is, 1732.75 hours. The answer to this equation will provide the number of full time positions that the Employer is obliged to convert. A more complex method of pooling would require an analysis of various courtroom staffing by unclassified staff over a two years period and divide that figure by 1732.75. The core work of these employees performed in a courtroom. That work and various other tasks within the office setting is the “same work” as considered under the collective agreement. There can be no doubt that there is a continuing need for the work and therefore the employees should be converted.

The Union suggested that the Ministry of Corrections and the Union negotiated a Memorandum of Agreement that allows for pooling of hours for conversion. That agreement is an illustration of how the parties can elect to deal with the complexities of conversion in the face of a workforce that has complicated scheduling.

It was the Employer’s position that the first question is inarbitrable because there is no consideration of the pooling of hours under any provision of the collective agreement. In order for me to find for the Union I would have to alter, amend or otherwise rectify the collective agreement and that is, simply put, beyond my jurisdiction.

Ms. Witt, for the Employer, stated that the Memorandum of Agreement referred to by the Union was not ordered by a Board of Arbitration but was an agreement between the parties. While those parties were free to provide for conditions that were beyond the terms of the collective agreement, it is not available to this Board to impose that one-time exception upon these parties.

In the event I find I have jurisdiction to deal with this question, the Employer asserted that there is nothing in article 31.15.1.1 that requires the pooling of hours as suggested by the Union. Indeed, article 31.15.1.1 considers “an employee” or “an incumbent”. Obviously it cannot be applied to a group of employees. The Union has asked that I lump together any and all work performed by all these employees irrespective of their position or classification and find it to be the “same work” as considered under article 31.15.1.1. That cannot be done given the language of the collective agreement.

Regarding the issue of “continuing need”, the Employer contended that it has determined that there is no need for work on a full time basis because the work at issue is subject to the vagaries of the court. It would not be disputed that hearings adjourn with little, if any, notice and that type of uncertainty does not lend itself to a large full time workforce. The Employer cannot predict the work that will actually be done on any particular day. In this regard the Employer relied upon The Crown in Right of Ontario (Ministry of Attorney General) and OPSEU (Group Grievance) (February 12, 2002), unreported (Abramsky) GSB#0683/99.

In reply, the Union disputed that its suggested interpretation requires an addition of words to the collective agreement. Mr. Brewin stated that there are words that are implied by virtue of the words actually used by the parties. For instance, article 31.15.1.1 contemplates “authorized” leaves of absence. Surely the plain meaning of authorized leaves means leaves of absence that are acceptable to the Employer and not only those leaves expressly considered under the collective agreement. Therefore, if the Employer has allowed employees to be unavailable for the purposes of vacation or sick leave they should be considered to be on an authorized leave of absence. Further, Vice Chair Dissanayake stated in Re GSB#803 (supra) that the collective agreement specifically instructs that the use of the singular means and includes the plural and vice versa and any changes that have occurred in the language of the collective agreement since his decision are not determinative for the purposes of this dispute.

After consideration of this matter I cannot find for the Union. Irrespective of my view of the issue of jurisdiction, the collective agreement simply does not provide the benefit suggested by the Union. Pooling of entire bargaining unit’s collective hours is not congruent with the provisions of article 31.15.1.1. Article 31.15.1.1 provides conversion to full-time status for an employee who has met certain specified criteria.

It was asserted by the Union that the decision of Vice Chair Dissanayake in Re GSB #803/91 should prevail and be applied in these circumstances. I disagree. Indeed, given the language of the present collective agreement, it cannot. Vice Chair Dissanayake’s decision was issued in 1994 when the entitlement to conversion was considerably different that it is in the present collective agreement. Indeed, there was no individual right to conversion. Under that collective agreement it was “positions” that were converted to full time, not employees. As suggested by the Union, there was a specific consideration of whether the singular “employee” included the plural “employees” in the conversion article. It was determined that if the same work was being performed by a group of employees rather than by one employee so as to avoid a full time position being established, the collective agreement was being violated. Indeed, it was said at page 7 of that decision, “it must be remembered that the provision is about conversion of “positions” and not about converting the status of individuals from unclassified to classified”. It was in that context that he was considering whether the word “employee” as stated in the collective agreement included the plural. Obviously, he found that it would be wrong to dismiss the grievance in that instance if the Employer could circumvent its obligations under the collective agreement by scheduling more than one employee to do the work in question. However, the provisions of this collective agreement are vastly different. Now, individual employees are converted to full time status, not merely the position. Accordingly, collective hours spent doing a type of work is not determinative for the purposes of this matter.

In considering the first question it is not necessary for me to determine whether there is a “continuing need” for this work. Conversion to full time status for employees requires both a finding that the same work has been performed by an employee for eighteen months and that there is a continuing need for the work to be done. Having found that pooling of hours as suggested by the Union is not sufficient for the purposes of article 31.15.1.1, it is not necessary to address the issue of continuing need.

QUESTION #2

Do the following qualify as “same work” for purposes of qualifying unclassified employees for conversion under article 31.15.1.1:

1. Same job, same classification, more than 1 contract [multiple locations]

2. Same job, same classification, one contract, multiple locations

3. Different job, different classifications, a contract for each

4. Different jobs different classifications, different locations different contracts.

Mr. Brewin asserted that it there was no dispute that in some instances employees including the grievors are employed on more than one contract at any one time. The contract might be location specific, for example family court. It was the Union’s position that the existence of more than one contract at the same time is irrelevant to the analysis that should be applied. It is appropriate for this Board to look past the specifics of any individual contracts and see the reality of the Employer’s overall work assignment and define that body of work as “same work”. If, on a regular basis, the Employer assigns a body of work to a group of unclassified employees for a two year period then the provisions of article 31.13.1.1 have been met.

Not surprisingly, the Employer took a different view. None of the examples set out meet the necessary definition of “same work” as needed for the purposes of conversion. It does not make sense that “same work” would extend over more than one work location for these purposes. The fact that the employee works in more than one location is indicative of there being insufficient full time work in one location. Indeed, if for some reason this Board found there was an employee who should be converted to a full time position, where would the location of that position be? In this regard the Employer relied upon Re The Crown in Right of Ontario (Ontario Human Rights Commission) and OPSEU (Mistry) (February 10, 1998), unreported (Verity) GSB#0569/96.

In Re Mistry (supra), Vice Chair Verity stated at page 10:

The matter of the same work is not an absolute concept. It must be given a meaning that takes into account the purpose of article 31.15.1.1 and yet be within the limits of fairness and reason. In this connection, it is not entirely without significance that any diversion from the same work implies some affirmative act of direction on the part of the employer either expressed or implied. Would an unclassified employee’s work lose it (sic) characteristic of sameness because incidentally or in a very limited way he or she did other work? There is a familiar maxim that common sense often makes good law. It is in my view applicable in this case. I think the real question before me is whether the work of the grievor taken as a whole was the same throughout the period of two successive years such as to meet the purpose of article 31.15.1.1.

In that case, the Employer was trying to convince the Board that the same work has to be performed “in a single position”. In this regard, Vice Chair Verity stated, at page 7:

I read the two articles in vain for any indication of an intention to convert only certain unclassified incumbents to classified status. Nor do I find any reason of significance or fairness to draw a dividing line between the employee who performed the same work for a period of at least two consecutive years in a single position and the employee who performed the same work for a period of at least two consecutive years in more than one position. To my mind, “the same work” is the controlling imperative without regard to a single position.

If the parties had intended the same work to be performed in a single position they could have so stated instead of leaving it in the mystifying silence of construction.

…..I have already construed article 31.15.1.1 to mean that the sameness of the work is the controlling factor rather than the same work in a single position. For that reason, in my view, a change in the geographical location of the workplace does not sever the continuity of the same work.

…..The question in respect to the “sameness” of the work is one of fact.

In my view, Vice Chair Verity has answered much of this question. In Re Mistry, he considered particular facts and attempted to apply the provisions of article 31.15.1.1 accordingly. He found that work location did not sever “same work”; that same work does not mean same position; and that in the facts before him, the nature of the grievor’s work changed from one classification to another and at that point she was no longer doing the same work. Keeping his comments and specific finding in mind, it seems to me that the matter of the number of contracts is not, in and of itself, determinative. Further, location is not, in and of itself, sufficient for a finding that the work is not the same. However, generally speaking because different classifications have different work duties and responsibilities, a different classification would, probably in most instances, bring a finding that the work is not the same.

QUESTION #3

Without prejudice to the Employer’s right to object that the issue is inarbitrable, do the circumstances, listed below from 1 to 9, qualify as leaves of absence for unclassified employees for purposes of article 31.15.2:

1. Vacation and statutory holidays

2. Union activities (as per Article 23)

3. Special Leave (as per Article 25)

4. Jury Duty (as per Article 27)

5. Sick leave/WSIB leave

6. Bereavement Leave (as per Article 31.10)

7. Pregnancy Leave (as per Article 31.9.1)

8. Parental Leave (as per Article 31.9.2)

9. Canadian Forces/Military Leave (as per /Article 28)

It quickly became apparent during the course of the hearing that there was no dispute that Union Leave, Jury Duty Leave, Bereavement Leave, Pregnancy Leave, Parental Leave and Military Leave are authorized leaves under the collective agreement to which unclassified employees are entitled. Further, those leaves of absence qualify as leaves of absence for unclassified employees for the purposes of article 31.15.2.

However, the Union’s position went beyond that agreement. It submitted that “authorized leaves of absence” as contemplated in articles 31.15.1.2 and 31.15.2 are, simply put, those leaves that have been authorized by the Employer and not only those leaves set out in the collective agreement. Therefore, all of the hours of any leave of absence that has been approved by the Employer should be taken into account for the purposes of article 31.15.2. If, for whatever reason, the Employer granted an unclassified employee a Special Leave of absence, those hours would be included in the determination of hours.

Specifically addressing the issue of vacation or holiday leaves, special leave and leaves for sickness, it was the Union’s assertion that irrespective of whether there is an express approval for such periods, the Employer’s allowing time off for these purposes constitutes authorization of such a leave.

Ms. Moore, for the Employer, conceded that Union Leave, Jury Duty Leave, Bereavement Leave, Pregnancy Leave, Parental Leave and Military Leave are authorized leaves under the collective agreement to which unclassified employees are entitled. However, it was asserted that unclassified employees are not entitled to other listed leaves. There is a list of leaves of absence that unclassified employees are entitled to at article 31.16.1. Vacation and statutory holiday leave, sick leave and special leaves are not included in that list and it would be beyond the jurisdiction of this Board to grant the Union’s request in this regard.

I begin by saying that although the Employer can grant leaves of absences for purposes other than those listed in article 31.16.1 to unclassified employees, there is no contractual entitlement to those leaves. Neither is there any entitlement to any hours of such leaves being included in calculation of straight time hours for the purposes of determining rights to conversion. I cannot find that there is such a right in the absence an express provision in the collective agreement. Further, I cannot agree with the Union that an implied or express agreement from the Employer for non collective agreement leaves of absence is sufficient for those leaves to be considered for these purposes.

In Re GSB#1571/97 I was asked to determine whether authorized leaves of absence taken by unclassified employees were to be included when calculating straight time hours toward the qualifying period for conversion set out in article 31.15.2. At page 3 I found that “the plain meaning of the words lead to the conclusion that authorized leaves of absence are to be included when calculating straight time hours”. As stated above, I am of the view that “authorized leaves” are those leaves set out at article 31.16.1. I have not been persuaded to add to or detract from that determination.

It is my hope that the parties will find this decision to be of assistance. In the event that there are difficulties with the outstanding grievances, I remain seized.

Dated in Toronto, this 5^th day of May, 2003.