GSB# 2004-0310, 2004-0903, 2004-2186, 2005-3009
UNION# 2004-0313-0005, 2004-0212-0001, 2004-0212-0004, 2004-0313-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Herries et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Janice Johnston
Vice-Chair
FOR THE UNION
Mark Barclay Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Janice Campbell Counsel Ministry of Government Services
HEARING
May 17, 2006.
Decision
This decision deals with grievances filed on behalf of four individuals. All four grievances are similarly worded and allege a violation of Article 8 of the Collective Agreement. The dispute concerns the manner in which the rate of pay to which the grievors were entitled during their respective temporary placements should be calculated.
The parties agree that when the individuals commenced their temporary assignments, they properly received the increase they were entitled to under Article 8.1.1 of the collective agreement. That provision states:
Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he or she shall be paid acting pay from the day he or she commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he or she shall receive the next higher salary rate again.
At the hearing scheduled to deal with this matter, the parties agreed that it was to be dealt with pursuant to the expedited arbitration process set out in Article 22 of the Collective Agreement. That process provides in part:
22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner.
22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.
22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.
The parties provided me with an agreed Statement of Facts. It reads as follows:
- The statements below related to the facts of the following grievances: 1) Dan Herries (GSB #2004-0310; OPSEU # 2004-0313-0005); Nelson Denyes (GSB # 2004-0903; OPSEU # 2004-0212-0001); Richard Dupuis (GSB # 2004-2186; OPSEU # 2004-0212-0004); and Randy Brooks (GSB # 2005-3009; OPSEU # 2004-0313-0013).
Herries/Brooks
In 2003 Herries and Brooks were in the position of Conservation Officer and classified as a Resource Technician 4 - Conservation Officer.
Both Herries and Brooks were at the maximum of the Resource Technician 4 - Conservation Officer classification at the rate of $27.81/hour. The Resource Technician - Conservation Officer 4 classification is in Schedule 4-7. Under Article UN2 the normal hours of work for positions in Schedule 4-7 is 40 hours/week, 8 hours/day. Both Herries and Brooks prior to October 6, 2003 were paid for a normal week, $1,112.40.
Effective October 6, 2003 Herries and Brooks accepted acting assignments in the position of Agricultural Investigator classified at the Executive Officer 2 level. The Executive Officer 2 classification is in Schedule 6. Under UN 2.3 employees in Schedule 6 are paid on a weekly basis, and the minimum hours of work for employees in Schedule 6 is 36-1/4 hours per week.
Effective October 6, 2003 the Temporary Assignment rules set out in Article 8.1.1 were applied [$1,112.40 x 3% = $1,145.77] and Herries and Brooks moved to the 4th Step in the Executive Officer 2 classification and were paid at the rate of $1,146.96 / week.
Effective January 1, 2004 all OPSEU classifications received an across the board increase of 2.5%. As the regular hours of work for the position in the Executive Officer 2 classification is based on a weekly rate, the 2.5% is added to the weekly rate, as set out in the collective agreement, and effective January 1, 2004 Herries and Brooks were paid $1,175.63 (4th Step of EO2 Classification).
Effective April 1, 2004 Herries and Brooks returned to their home position of Conservation Officer classified as Resource Technician 4 - Conservation Officer and were paid at the 2004 rate for the Resource Technician 4 - Conservation Officer classification, $28.78/hour.
Herries and Brooks grieve that their temporary assignment pay should have been recalculated effective January 1, 2004 and argue that due to the across the board increase, they were receiving a less than 3% increase effective January 1, 2004.
The Employer maintains that Herries and Brooks received their increase in accordance with Article 8 of the collective agreement and MGS compensation policies.
Denyes
In 2003 Denyes was in the position of Conservation Officer and classified as a Resource Technician 4 - Conservation Officer.
Denyes was at the maximum of the Resource Technician 4 - Conservation Officer classification at the rate of $27.81 / hour. The Resource Technician - Conservation Officer 4 classification is in Schedule 4-7. Under Article UN2 the normal hours of work for positions in Schedule 4-7 in 40 hours/week, 8 hours/day. Denyes prior to February 2003 was paid $1,112.40 for a normal week.
Effective February 2, 2003 Denyes accepted an acting assignment in the position of Agricultural Investigator classified at the Executive Officer 2 level. The Executive Officer 2 classification is in Schedule 6. Under UN 2.3 employees in Schedule 6 are paid on a weekly basis, and the minimum hours of work for employees in Schedule 6 is 36-1/4 hours per week.
Effective October 6, 2003 the Temporary Assignment rules set out in Article 8.1.1 were applied [$1,112.40 x 3% = $1,145.77] and Denyes was paid at the 4th Step in the Executive Officer 2 classification at the rate of $1,146.96/week.
Effective January 1, 2004 all OPSEU classifications received an across the board increase of 2.5%. As the regular hours of work for the position in the Executive Officer 2 classification is based on a weekly rate, the 2.5% is added to the weekly rate, as set out in the collective agreement, and effective January 1, 2004 Denyes was paid $1,175.63/week.
Effective February 1, 2004 Denyes received a merit increase and was moved to the 5th step in the Executive Officer 2 classification and paid at the rate of $1,234.94.
Effective April 1, 2004 Denyes competed for and was successful in the competition for Agricultural Investigator, and in accordance with Article 7, paid at the rate of $1,234.94/week.
Denyes grieves that his temporary assignment pay should have been recalculated effective January 1, 2004 and argues that due to the across the board increase, he was receiving a less than 3% increase effective January 1, 2004.
The Employer maintains that Denyes received the increase in accordance with Article 8 of the collective agreement and MGS compensation policies.
Dupuis
On September 1, 2003 Dupuis was in the position of Conservation Officer and classified as a Resource Technician 4 - Conservation Officer.
Dupuis was at the maximum of the Resource Technician 4 - Conservation Officer classification of the rate of $27.81/hour. The Resource Technician - Conservation Officer 4 classification is in Schedule 4-7. Under Article UN2 the normal hours of work for positions in Schedule 4-7 in 40 hours/week, 8 hours/day. Dupuis prior to September 1, 2003 was paid $1,112.40 for a normal week.
Effective September 2, 2003 Dupuis competed for and was successful in the Intelligence/Investigations Specialist (Resource Technician, Senior 3) competition. The Resource Technician, Senior 3 classification is in Schedule 6. Under UN 2.3 employees in Schedule 6 are paid on a weekly basis, and the minimum hours of work for employees in Schedule 6 is 36-1/4 hours per week. The maximum of the Resource Technician, Senior 3 level in 2003 was $1,101.41/week. Dupuis accepted a voluntary demotion to the position of Intelligence/Investigations Specialist and effective September 3, 2003 Dupuis was placed at the max of the Resources Technician Senior 3 classification, $1,101.41/week.
Effective January 1, 2004 all OPSEU classifications received an across the board increase of 2.5%. As the regular hours of work for the position in the Resource Technician Senior 3 classification is based on a weekly rate, the 2.5% is added to the weekly rate, as set out in the collective agreement, and effective January 1, 2004 Dupuis was paid $1,140.01/week.
In May, 2004 the position of Intelligence/Investigations Specialist was reclassified from Resource Technician Senior 3 to Resource Technician 5, effective January 1, 2002.
Dupuis’ salary was adjusted to $1,146.96 retroactive effective September 2, 2003 to reflect the reclassification to Resource Technician 5 and further adjusted to $1,175.63 effective January 1, 2004 when all OPSEU classifications received an across the board increase of 2.5%.
At the hearing, the three grievors who were present were afforded the opportunity to make additional submissions and did so. I have taken those submissions into account in coming to the conclusions set out in this decision.
On January 1, 2004, the grievors were entitled to a 2.5% pay increase. The Ministry applied this 2.5% increase to the wages the grievors were receiving at the time. They therefore remained at the 4th step of the classification the acting assignment was in, but got a 2.5 % increase in their wages.
The union disagrees with the manner in which the negotiated annual pay increase, which occurred on January 1, 2004, was applied in this case. It is the union’s position that in calculating the rate of pay to which the grievors were entitled after January 1, 2004, that the Ministry should have, in effect, returned the grievors for a moment in time to their old position, which now had a higher rate of pay and recalculated the 3 per cent increase (to which the grievor’s are entitled under article 8.1.1) based on the new rate in effect after January 1, 2004.
Counsel for the Ministry pointed out that there is nothing in the provisions of Article 8 that require the employer to recalculate the wages being paid to an employee on a temporary assignment when an annual wage increase takes effect. The 3% increase is calculated when an employee moves into the temporary assignment and nothing in Article 8 suggests that the employee is entitled to any subsequent re-adjustments. In support of this position, counsel referred me to the decision of the Grievance Settlement Board in Ontario Public Service Union v. Ontario (Ministry of Community Safety and Correctional Services) GSB #2002-1457 (Abramsky) (the Cartwright case). She argued that it was directly on point and that I should follow it.
In that case, the union argued that employees who were on temporary assignments outside the bargaining unit were entitled to receive negotiated pay increases to their home positions plus the additional 3% provided for in Article 8. The employer took the position that the employee’s home position salary is important only for determining their salary in the acting assignment. Once the acting assignment starts, the employee’s salary is tied to the acting position. Vice-Chair Abramsky dismissed the position of the union and concluded starting at paragraph 28:
28 The collective agreement establishes wage rates for work performed in a classification. One must perform work in the classification in order to receive pay for that work. When an employee is on a temporary assignment, they are no longer performing work in their home position, but are working in another classification, and their pay is tied to that classification. This is clearly evident from Article 8.
31 ... But that provision [Article 8.1.1] deals only with determining the level of pay at the commencement of the acting assignment. Under this provision, the employee’s home position salary is compared to the “next higher rate in the higher classification.” If that results in at least a three percent increase, he or she is paid that next higher rate. ... This provision, however, does not thereafter tie the acting employee’s salary to their home position, plus three percent, for the duration of the acting assignment.
32 By its terms, Article 8.1.1 does not provide for that, nor does the parties’ past practice support such an interpretation. On the contrary, the parties’ past practice clearly demonstrates that an acting employee’s salary, while in the temporary assignment, is tied to the acting position.
Ministry counsel also relied upon the Blake decision - Amalgamated Transit Union (Blake et al) and the Toronto Area Transit Operating Authority GSB #1276/87 (Shime) - and argued that, as the issues raised in the case before me had been dealt with by the Board in the Cartwright Case, unless I concluded that the Vice Chair had made a manifest error I was bound by the earlier decision.
Counsel for the union disagreed with the position of the employer that the Cartwright Case dealt with the same situation before me. He sought to distinguish it on the basis that the individuals in Cartwright were in temporary assignments to managerial positions outside the bargaining unit. As such, he urged me to conclude that the Cartwright Case was not on point as the facts were fundamentally different.
As is apparent from the Agreed Statement of Facts, the situation which gave rise to each individual’s grievance (other than Mr Herries/Brookes) in this case are somewhat different. However, the issue at the heart of this case is the same for each.
I completely agree with the conclusions reached by Vice-Chair Abramsky in the Cartwright decision and I am also of the view that her remarks are equally applicable to the facts in the case before me.
After having carefully considered the evidence before me, the submissions of counsel and the comments of the grievors, I have reached the conclusion that the grievances must fail. Although I understand and am sympathetic to the frustration of the grievors and their sense of inequity with the fact that someone moving into the same acting assignment that they were in after January 1, 2004 (i.e. while they were still in the acting assignment), could potentially receive a higher wage, the language of the collective agreement is clear. There is nothing in Article 8 that requires the 3% increase on an acting assignment to be adjusted in the face of annual or any other type of increases.
The employer’s interpretation of the collective agreement language is correct and the grievances are dismissed.
Dated in Toronto this 29th day of May, 2006