GSB# 2007-0355
UNION# 06-46
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750 (Policy Grievance)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Ian Thompson National Representative Canadian Union of Public Employees - Local 1750
FOR THE EMPLOYER
Gurjit Brar Counsel Workplace Safety and Insurance Board
HEARING
July 12, 2007.
Decision
The Proceedings
This is a Union policy grievance regarding the wage rates to be paid to the members of the bargaining unit employed as "Workwell Evaluators". That position was moved up one salary grade as a result of being evaluated in accordance with the job evaluation system. This dispute centres on which step on the new grid the employees were placed. The previous grid had eight steps, with the maximum wage rate reached in 4.5 years. The new grid has four steps, with the maximum wage rate reached in 2.5 years. Salary rule 6 requires that such reclassified employees have their salary "adjusted to the same step in the new range." It is the determination of what is the "same step" that is in dispute in these proceedings.
The Facts
This matter proceeded by way of an agreed statement of facts which is as follows:
AGREED STATEMENT OF FACTS
I. Introduction
The Employer is a statutory corporation continued under the Workplace Safety and Insurance Act, 1997 (the "Act"). It is responsible for administering the Act and claims for benefits filed by injured workers in Ontario. It employs approximately 4400 employees, a majority of whom are represented by the Union as exclusive bargaining agent.
The Employer and Union are parties to a collective agreement (the "Agreement") which took effect April 1, 2005 and expires on March 31, 2008.
The Agreement contains a "Job Listing" that sets out the jobs covered and their associated salary grade. The salary grades begin at 815 and end at 890 [Collective Agreement, page 213]. The Agreement provides for two additional salary grades (805 & 810), however, at present, no jobs are included therein.
II. Classification of employees
Every employee covered by the Agreement is classified according to a salary grade or level, job title and/or job description appropriate to their occupation.
The salary grades for all jobs are set out in Schedule "A" of the Agreement [Collective Agreement, Page 195].
Jobs may be reclassified to different salary grades through an agreed upon joint job evaluation system.
When a job is reclassified, the "Salary Rules" and, in particular, Salary Rule #6 is applied to adjust salaries paid to employees [Collective Agreement, Page 08].
III. Joint Job Evaluation System
The parties have implemented a Job Evaluation System (JES) [Collective Agreement, Article 18].
The JES includes the job description process, job evaluation process, the maintenance process, communication of results and dispute resolution.
The Joint Job Evaluation Committee (the "Committee") evaluates all bargaining unit jobs using the Job Evaluation Plan ("JEP").
Job evaluation is the process the parties have agreed to for measuring the relative value of jobs. This process uses the factors of skill, responsibility, effort and working conditions, which are further subdivided into 18 sub-factors, as they are defined in the JEP.
The Committee reviews all new and revised job descriptions. The Committee then meets to evaluate the new/revised job description. After the meeting, the evaluation results are communicated in writing to the line Manager who then advises the job incumbent(s) of the result, in writing
Each of the 18 sub-factors is given a numerical or alphanumerical rating level which is used to evaluate the extent to which a particular sub-factor is utilized in a job.
When the classification of a job is changed resulting from job evaluation, the effective date of the reclassification is either the date when it is agreed that a change in job duties occurred or, in the absence of an agreement, twenty (20) days prior to the date the submission for review was submitted in writing.
IV. Salary rules
- The current Collective Agreement contains the following salary rules [salary rule 6] that apply to reclassified jobs:
"Reclassified Jobs
If a job is reclassified one salary grade higher than the existing grade, the incumbent's job start date will not change and the salary will be adjusted to the same step in the new range.
If the job is reclassified more than one salary grade higher than the existing grade, the incumbent's job start date will not change.
If the salary is at minimum of the current salary grade, the salary will be adjusted to the minimum of the new grade, otherwise the salary will be adjusted to one step back in the new grade.
Where an employee's job is reclassified upward and where application of the above salary rule results in the employee's salary moving downward, the employee will be placed at the next higher step of the new salary grade.
If a job is reclassified to a lower salary grade, the employee will be afforded Income Protection rights only, under Article 6.07." [Page 208]
- The predecessor collective agreement (April 1, 2002 to March 31, 2005) contained the following salary rules applicable to reclassified jobs:
"Reclassified Jobs
If a job is reclassified one salary grade higher than the existing grade, the incumbent's job start date will not change and the salary will be adjusted to the same step in the new range.
Exceptions
*An employee at Step 2 of salary grade 855 who has their job reclassified to salary 860 will have their salary adjusted to Step 3 of salary grade 860.
**An employee at Step 3 of salary grade 855 who has their job reclassified to salary grade 860 will have their salary adjusted to Step 5 of salary grade 860.
If the job is reclassified more than one salary grade higher than the existing grade, the incumbent's job start date will not change. If the salary is at minimum of the current salary grade, the salary will be adjusted to the minimum of the new grade, otherwise the salary will be adjusted to one step back in the new grade.
Exceptions
***An employee at Step 3 of salary grade 850 who has their job reclassified to salary grade 860 will have their salary adjusted to Step 3 of salary grade 860.
If a job is reclassified to a lower salary grade, the employee will be afforded Income Protection rights only, under Article 6.07."
- The collective agreement in effect from April 1, 1999 to March 31, 2002 set out the following salary rules applicable to reclassified jobs:
"Reclassified Jobs
If a job is reclassified one salary grade higher than the existing grade, the incumbent's job start date will not change and the salary will be adjusted to the same step in the new range.
Exceptions
*An employee at Step 2 of salary grade 855 who has their job reclassified to salary grade 860 will have their salary adjusted to Step 3 of salary grade 860.
**An employee at Step 3 of salary grade 855 who has their job reclassified to salary grade 860 will have their salary adjusted to Step 5 of salary grade 860.
If the job is reclassified more than one salary grade higher than the existing grade, the incumbent's job start date will not change. If the salary grade is at minimum of the current salary grade, the salary will be adjusted to the minimum of the new grade, otherwise the salary will be adjusted to one step back in the new grade.
Exceptions
***An employee at Step 3 of salary grade 850 who has their job reclassified to salary grade 860 will have their salary adjusted to Step 3 of salary grade 860.
If a job is reclassified to a lower salary grade, the employee will be afforded Income Protection rights only, under Article 6.07."
V. Present Dispute
In or around 2006, the position of Workwell Evaluator was evaluated in accordance with the job evaluation system. Prior to evaluation, the position was classified at salary grade 870. After the evaluation, the position was raised one salary grader higher to salary grade 875.
The reclassification of the Workwell Evaluator position affected twenty (20) employees.
All employees received a salary increase resulting from the reclassification.
Salary grade 870 has eight (8) salary step progressions represented as follows:
| Salary Grade | Step | Annual Salary | Months to Next Step |
|---|---|---|---|
| 870 | 1 | 57,596.17 | 6 |
| 870 | 2 | 59,653.01 | 6 |
| 870 | 3 | 61,709.84 | 6 |
| 870 | 4 | 63,766.68 | 6 |
| 870 | 5 | 65,824.71 | 6 |
| 870 | 6 | 67,881.54 | 12 |
| 870 | 7 | 69,938.37 | 12 |
| 870 | 8 | 71,995.23 | Max |
- Salary grade 875 has four (4) salary step progressions represented as follows:
| Salary Grade | Step | Annual Salary | Months to Next Step |
|---|---|---|---|
| 875 | 1 | 65,567.60 | 6 |
| 875 | 2 | 69,424.15 | 12 |
| 875 | 3 | 73,281.92 | 12 |
| 875 | 4 | 77,138.50 | Max |
When a job is reclassified one salary grade higher, paragraph 1 of Salary Rule #6 is applied to implement the reclassification.
When the Workwell Evaluator job was reclassified, the Employer applied paragraph 1 of Salary Rule #6 according to its terms in respect of six (6) of the twenty (20) affected employees.
The Employer was unable to apply this provision to the remaining fourteen (14) employees because there was no "same step in the new range". Thirteen of these employees were at Step 8 and one was at Step 6 in salary grade 870 prior to reclassification and they could not be placed into Step 8 of salary grade 875 because the same step in 875 does not exist.
The Employer reclassified the remaining fourteen (14) employees by reference to their salary prior to reclassification and placed them into the step with the next higher salary amount. For example, an employee at Step 8 of salary grade 870 with a salary of $71,996.23 was placed into Step 3 of salary grade 875 because that step provided an increase in salary (i.e. $73,281.92).
The date on which all twenty (20) employees started in the job of Workwell Evaluator did not change. The Employer utilized an effective date of reclassification for the purpose of determining retroactive compensation.
The present grievance concerns the interpretation of paragraph 1 of Salary Rule #6 and its application to the reclassification of Workwell Evaluators from salary grade 870 to salary grade 875 and specifically to the fourteen (14) employees in respect of whom the Employer was unable to the apply the specific rule.
It is the Union's position that the remaining employees should be reclassified to Step 4 in salary grade 875 effective the date of the implementation of the reclassification by reference to their time in the position at salary grade 870.
If the Union's interpretation of the salary rule is applied, it would result in an estimated $32,000.00 in additional aggregate compensation to the fourteen Workwell Evaluators.
In addition to Workwell Evaluators, the dispute between the parties extends to five(5) other positions that have been, or will in the near future be, reclassified.
The parties agree that the facts relating to the Workwell Evaluator grievance are substantially similar to the additional five positions and that this grievance serves as an accurate representation of the issues in dispute between the parties.
In addition to the foregoing, the following, other salary rules are significant:
SALARY RULES - SCHEDULE "A"
The Employer will pay salaries in accordance with this Schedule and this Schedule will apply to all employees in the classifications listed herein. An employee will receive notice of at least one month if, due to performance, the incremental increase is not to be received.
The job start date is the date the employee commenced the current permanent job. When an employee in a temporary assignment is permanently confirmed in the same job, their job start date will be the date they began the temporary assignment.
When a contract employee becomes a probationary employee in the same job, their job start date will be the date they began their uninterrupted contract employment in that job. Interruptions of 3 weeks or less will be considered as continuous service.
The time periods set out at the top of the columns are reflections of the job start date set out in (1). Notwithstanding paragraph one, where an employee is transferred to a new position in the same salary grade, the job start date will not be changed.
An employee who is promoted will have their salary adjusted to the next highest salary amount in the new salary grade, and their future salary progression will thereafter be governed by the time interval for the new salary grade.
An employee who is the successful applicant to a position in a lower salary grade will be placed in the next lowest amount in the new grade.
The Submissions of the Parties
The Union submitted that the job evaluation of the Workwell Evaluator position resulted in the salary grade increase because of changes in the job that had taken place over time. The purpose of the joint job evaluation system is to ensure that pay rates properly reflect the work being performed. The Union said that this process is not a promotion, to which salary rule 4 would apply. Clearly, salary rule 6 is applicable in these circumstances. It submitted that the employer, in essence, treated the reclassification as a promotion, by slotting employees into the new grid at the first step that resulted in a wage increase. The Union submitted that that approach ignored the employees' start date, thereby, in effect, changing the start date. The Union reviewed a number of examples where the employees' step placements following this reclassification resulted in shorter service employees reaching the subsequent step before longer service employees.
The Union proposed two alternatives that it said would be consistent with the collective agreement. First, anyone at the first or last step on the 870 salary grade should be moved to the corresponding step, first or last, on the 875 salary grade. Anyone at an in-between step should be placed on the 875 salary grade based on their length of service in the position, calculated from their job start date. The Union's alternative proposal was that each employee should be placed based on their length of service in the position, calculated from their job start date. The Union relied on the following authorities: Ottawa Citizen and Ottawa Newspaper Guild, Local 205 (1977), 1977 CanLII 2860 (ON LA), 14 L.A.C. (2d) 172 (Weatherill); Valbay Hotel Ltd. and UFCW, Local 175 (1994), 1994 CanLII 18743 (ON LA), 44 L.A.C. (4th) 8 (Springate); Fanshawe College and OPSEU (1982), 1982 CanLII 5044 (ON LA), 4 L.A.C. (3d) 10 (Swinton); Capital Region District and BCNU, [1993] B.C.C.A.A.A. No. 68 Award no. A-66/93 (Bird).
The Employer submitted first that this grievance seeks to obtain a greater monetary benefit for the bargaining unit. Accordingly, the Union bears the onus of proving that their interpretation of the collective agreement is correct and it has not discharged that onus. No provisions of the collective agreement specifically require that an employee be placed on the new grid based on time in the position. Second, the employer submitted that there is a gap in salary rule 6. The parties did not contemplate an increase of one salary grade where the higher salary grade had fewer steps than the lower salary grade. In such circumstances it is not possible to place them on the "same step on the new range." The Employer's response to this gap was reasonable since it preserved each employee's salary and, indeed, gave each employee an increase. It said that the collective agreement should be considered as a whole, and other provisions were consistent with the principle of salary preservation. In that regard, it referred to articles 17.05, 6.07(a) and (b) and 18.02, paragraph 7. The employer also reviewed Schedule "A" and noted the number of times an increase of one salary grade might fall into the instant situation. Finally, the Employer submitted that such a significant financial impact on it could only result from clear language. The Employer relied upon the following authorities: Brown and Beatty, Canadian Labour Arbitration 4:2000; Canadian Linen Supply Co. and Teamsters Union, Local 213 (1997), 1997 CanLII 25121 (BC LA), 61 L.A.C. (4th) 274 (Moore); Golden Giant Mine and USWA Local 9364, [2004] O.L.A.A. No. 600 (Marcotte).
In reply, the Union submitted that it had discharged its onus by demonstrating that the Employer's actions are not supported by any provision of the collective agreement and by relying on salary rules 1, 3 and 6 which support the principle that employees move through the grid based on their time in the job, calculated from their job start date. Further, if financial impact is relevant, then the relative financial impact favours the bargaining unit employees.
Reasons for Decision
The Employer is correct that a recurring theme in the collective agreement is the preservation of an employee's salary in situations of transition. However, here we are dealing squarely with the application of salary rule 6, which specifically deals with placement on the new grid when "a job is reclassified one salary grade higher than the existing grade". The general thrust of salary preservation, which is evident in the articles referred to is not of great significance in a situation such as this. They each deal with specific, other, workplace transitions.
In the simplest applications of rule 6 there will be a reclassification one grade higher and both the higher and existing salary grades will have the same number of steps reached over the same time periods. Applying the rule, each employee will slide into the same step on the new salary grade because they will keep their start date and their "salary will be adjusted to the same step in the new range".
In order to give full effect to rule 6, the parties' use of the conjunction "and" must be given its ordinary and plain meaning. That requires that each employee's start date be used to adjust his or her salary to the level required by the new salary grade's timelines. The "sameness" is the employee's position in the new salary grade's spectrum, relative to their position in the previous salary grade. That position is governed by the new salary grade itself, as agreed upon by the parties. The application of the new salary grade's step timelines will place the employee in the same step they enjoyed previously.
The result is the same if, as the Employer submitted, there is a gap in rule 6 in situations such as this where the steps are not identical. Although the "first" step and the "last" step might be seen as "the same", as submitted by the union, the purpose of the rule is to treat employees equally. To have a different framework for dealing with those on intermediate steps may result in differential treatment and lacks the necessary requirement of equal treatment.
Even if there is a gap in rule 6, the placement of reclassified employees on the new salary grade should be accomplished in the same manner as the placement of any employee on any of the salary grades. That is, by application of the salary rules. The first requirement is to determine the employee's start date in accordance with rule 1. By virtue of rule 3, the calculation of the correct step is achieved by considering and aggregating the time intervals from step to step commencing with the job start date. To do otherwise would be to ignore the start date. The Union is correct that to ignore the start date is tantamount to changing it, contrary to rule 6. Rule 6 essentially requires that effect continue to be given to the job start date, which can only be done by applying each employee's start date to the step time frames of the new salary grade's grid.
This approach is entirely consistent with the purpose of reclassification through the job evaluation process. The point of the job evaluation process is to ensure that the wage scales paid are reflective of the value of the job. The Workwell Evaluator position was reclassified from salary grade 870 to salary grade 875. The latter has fewer steps and a more compressed minimum to maximum time frame. This is because the parties have agreed upon those terms for those salary grades. An employee in salary grade 875 is to be given the benefit of both the increased wages and decreased length of time to reach the maximum. This is achieved by considering the passage of time since each employee's job start date and placing him or her accordingly, relying on the time frames of salary grade 875. It is my Order that the reclassified Workwell Evaluators be placed on the 875 salary grade, effective January 6, 2004, in the foregoing fashion.
One final matter needs to be addressed. The Employer initially declared August 8, 2005 the effective date of the new salary grade. It subsequently agreed to roll back the effective date to January 6, 2004. One employee transferred into the job in that interval. Accordingly, he was placed into the 870 salary grade in accordance with the applicable rules. His wages were subsequently adjusted using the Employer's interpretation of rule 6. Given that there was agreement to roll back the effective date to a date prior to his move into the Workwell Evaluator position, he should be placed on the 875 salary grade, in accordance with the applicable rules, effective with his move into the position. To do otherwise would not be consistent with the parties' agreement that January 6, 2004 is the effective date of the increase to salary grade 875 for the Workwell Evaluator position.
I remain seised of any implementation issues.
Dated at Toronto this 16th day of July 2007