GSB#2007-3897, 2007-3898, 2007-3899, 2007-3900, 2007-3901, 2007-3902, 2007-3903, 2007-3904, 2008-0008, 2008-0009, 2008-1410, 2008-1444, 2008-1481
UNION#2007-0546-0046, 2007-0546-0047, 2007-0546-0048, 2007-0546-0049, 2007-0338-0001, 2007-0338-0002, 2007-0338-0003, 2007-0338-0004, 2007-0546-0051, 2007-0546-0052,
2007-0310-0043, 2007-0310-0044, 2007-0546-0056
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Mackay et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Val Patrick Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Michelle Dobranowski Ministry of Government Services Counsel
HEARING
July 9, 2009.
DECISION
1In the round of collective bargaining that resulted, on September 13, 2002, in the 2002-2004 collective agreement, the parties negotiated Appendix COR5 (which I will henceforward refer to as “COR5”) to the correctional bargaining unit collective agreement. It consists of three paragraphs and a Note. Only the first paragraph is of direct relevance here. It reads:
The Employer shall undertake a review and update of the Probation Officer class standards and shall establish a Probation Officer 3 classification effective January 1, 2002. The salary rates for the Probation Officer 3 level shall be:
01/01/02: $978.70 $1,009.87 $1,041.98 $1,075.99 $1,111.83
2COR5 first appeared in the 2002-2004 collective agreement and continues to be found in more current agreements. The salary rate outlined above was (subject to negotiated increases) incorporated into the collective agreement Salary Schedule, commencing with the next collective agreement, i.e. the 2005-2008 agreement. The Probation Officer 3 (“PO3”) was initially and continues to be a higher rated classification than either of the pre-existing PO1 or PO2.
3As contemplated and required by COR5, a new classification of PO3 was established in or about June 2004, effective January 1, 2002. Despite that, the employer has yet, even as of the hearing date in this matter, to create, let alone fill a single position within the PO3 classification.
4The parties have asked that I answer what they view as a threshold question – does the employer’s failure to create and fill a single position in the PO3 classification amount to a violation of the terms of COR5?
5By way of background, I was told that there are some 120 different locations at which Probation Officers – employed either by the current Ministry or by the Ministry of Community Safety and Correctional Services – work across the province. The union further advised that there are some 400 PO1s and some 800 PO2s so employed. There are, of course, no PO3s.
6The union’s ultimate position is that some 500 of the 800 PO2s either are eligible to be or ought to be PO3s. The union’s view is that the chief factor which determines the movement from PO2 to PO3 is time, i.e. length of service as a PO2. This issue is not (at least yet) before me.
7For the purpose of the instant decision, the union’s position may be summarised and perhaps only slightly distorted as follows. The parties agreed to restructure the world of PO classifications. While the work of Probation Officers formerly fell within 2 classifications, it now extends over three, including the new and higher rated PO3 classification. It could not have been within the contemplation of the parties that, as a practical matter, after the restructuring there would still only be 2 PO classifications. The only reasonable conclusion to draw from COR5 is that the new PO3 classification would be established and new PO3 positions would be created and filled. Whatever the proper number of PO3s which should have resulted, none is simply not enough.
8For its part, the employer challenges the union to identify any language in COR5 which requires the employer to create or fill any positions. COR5 obliged the employer to review and update the Probation Officer class standards and to establish a PO3 classification. There is no dispute that the employer has done both of those things and, the employer submits, it has thereby complied with its COR5 obligations.
9The parties chose to call no viva voce evidence in the case. Some limited and uncontroversial factual background, as set out earlier, was provided by the parties’ representatives. The only other evidence was provided by the employer. It filed Order in Council 1361/2004 effected pursuant to the Public Service Act. The relevant portions of the OIC read as follows:
Approval is given for the establishment by the Civil Service Commission of three new classifications including qualifications and duties for the Probation Officer 1, 2 and 3, effective January 1, 2002 (attached as Appendix 1).
The classifications including qualifications and duties for Probation Officer 1 and 2 as they stood on December 31, 2001 cease to exist on January 1, 2002.
The salary rates payable in respect of the classification of Probation Officer 3 shall be those set out in Appendix 2, in accordance with the Collective Agreement between the Crown in Right of Ontario as represented by the Chair of Management Board of Cabinet and the Ontario Public Service Employees Union (OPSEU)…
10As suggested in the OIC, Appendix 1 sets out the class standards, including the qualifications and duties for the 3 Probation Officer classifications; Appendix 2 sets out the salary schedule for the PO3 (which appears to be consistent with the terms of COR5). (There were, it should be noted, no changes in salary levels as between the “old” and the “new” PO1 and PO2 classifications.)
11These two appendices were forwarded from the employer’s Corporate Labour Relations/Negotiations Secretariat to the employer’s Human Resources Directors in July 2004 attached to a memorandum titled “New Class Standards and Salary Schedules OPSEU Correctional Bargaining Unit – Probation Officer 1, 2 and 3”.
12The net effect of the OIC is that effective January 1, 2002, the previously existing Probation Officer classifications (i.e. PO1 and PO2) were eliminated and a new series of Probation Officer classifications (i.e. PO1, PO2 and PO3) were created in their stead.
13While the “new” class standards were placed before me (Appendix 1), the parties chose not to file or refer to the previous equivalent documentation in relation to the PO1 and PO2 classifications as they existed prior to January 2002.
14In any event, the employer points to the correspondence filed and, more importantly, to the OIC and its Appendices as proof that it has fulfilled the obligations it undertook pursuant to COR5.
15The interpretive dispute between the parties can be simply stated. The employer asserts it has complied with the relevant obligations set out in COR5 and that nothing therein requires it to create or fill any positions. The union says it would be an utter mockery to conclude that the parties did not intend their negotiated agreement to result in, indeed require, the creation and filling of (at least some number of) positions in the newly negotiated PO3 classification.
16For the reasons which follow, I prefer the union’s interpretive view.
17It is true that a bare literal reading of COR5 makes the employer’s approach a plausible one. In my view, however, that approach is incorrect.
18The employer’s approach makes it difficult to divine any sensible purpose to the parties’ agreement. Indeed, the employer finds itself in the less than enviable position of asserting that the parties agreed to the creation of a new classification with no legitimate and certainly no enforceable expectation that the new classification would ever be populated. That position might have been more tenable had all that COR5 required was the creation of a single new classification.
19But COR5 does more than that. And the acuity of the union’s description is clearly echoed in the terms of the OIC filed by the employer. All existing PO classifications were abolished. Three new PO classifications were created by the OIC. The universe of OPS Probation Officers formerly comprised 2 classifications. Overnight there were three. The union basically asserts that all of the incumbent Probation Officers at the time of the change ought to have been placed, redistributed as it were, into one of the three classifications (essentially, on the basis of service). I do not need to go that far in order to accept the union’s view, as I do, on the threshold issue. The employer’s approach means that it would have negotiated the creation of a new classification and yet, at the end of the day, restricted its complement of Probation Officers to PO1s and PO2s, a result difficult to reconcile with parties’ bargain. No reason was proffered as to why the parties would negotiate an agreement to create a new classification absent any expectation or agreement that positions would be created within it. And as I have already indicated, that curiosity is magnified where, as here, the parties’ agreement results in the elimination of all classifications within the existing class standards for the series and their replacement with a new set of classifications within the series.
20Neither do I believe that the employer can properly rely on its management rights to defend this aspect of the grievance. It is true that both the evaluation and classification of positions as well as the determination of staffing levels are within the province of the employer (see Article 2 of the Central Collective Agreement). But those rights are ones the employer is obviously free to negotiate away and they are equally clearly subject to the terms of those negotiations. The parties agreed that a new classification be established – obviously the employer cannot and does not retreat from that agreement by referencing its management rights. I am satisfied that the parties’ agreement implies and necessitates the creation and filling of (at least some) positions in the newly negotiated classification. In that context, the employer similarly cannot rely on its management rights to never create and fill a single PO3 position.
21(I note as well, parenthetically because the question was not addressed in the course of the hearing, that no explanation was offered as to why, absent any expectation or requirement to create and fill any new PO3 positions, the parties would agree, in September 2002, to create a new classification, establish a new wage rate for it and to make both effective January 1, 2002.)
22Having regard to the foregoing I am satisfied that the employer, by failing to create and fill a single PO3 position is in violation of its obligations under COR5.
23I shall remain seized of the matter but I hereby remit it to the parties so that they may discuss a final resolution. Alternatively, the parties should contact the Registrar should further hearing dates be required.
Dated at Toronto this 16th day of July 2009.