GSB#2011-2819
UNION#2011-0999-0049
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union)
Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Billeh Hamud
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Omar Shahab
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
October 22, 2014
Decision
1The instant policy grievance dated September 19, 2011 came before the Board under the mediation-arbitration provisions of the collective agreement, article 22.16. It alleges that the employer contravened salary note G 29 of the collective agreement by not applying its terms to certain employees working for the Aviation and Forest Fire Management Branch. (“Fire Branch”). The parties requested that the Board rule on liability and remain seized with regard to remedy if the grievance succeeds. They also agreed to extend the five-day time limit for the issuance of the decision.
2Salary note G29 reads:
All steps in the salary rates for positions classified at the Resource Technician 1, 2 and 3 levels and Resource Technician Senior 1, 2 3 and 4 levels in the Aviation and Forest Fire Management Branch of the Ministry of Natural Resources will be increased as follows:
i. 2% on January 1, 2009
ii. 1% on January 1, 2010
3Employer counsel presented the following agreed statement of facts:
The Fire Branch in the Ministry of Natural Resources is tasked with front line fire suppression.
April 1st to October 31st of each calendar year is legislatively defined as “fire season”.
During fire season the Fire Branch offers opportunity of work to OPS employees not employed in the Fire Branch.
Nine individuals (“the employees”) who performed such work during the 2011 fire season are the subject of the instant policy grievance. They are Tony Elders, Fred Zroback, Laureen Parsons, James Bonang, John Myshrall, Christine Apostolov, Mark Kerr, Merrill Collins and Albert Gauthier.
The employees were at all material times employed by the Ministry of Natural Resources, but not at the Fire Branch.
They all had home positions classified at the Resource Technician 1, 2 or 3 level or at the Resource Technician Senior 1, 2, 3 or 4 level. However, their home positions were not in the Fire Branch.
The employees performed discreet tasks for the Fire Branch during the 2011 fire season. They did not perform any front line fire suppression tasks.
The Fire Branch has positions classified at the Resource Technician 1, 2, 3 and Resource Technician Senior 1, 2, 3, 4 levels. All these positions have core duties that involve front line fire suppression.
4The disposition of the grievance turns upon the interpretation of the language in salary note G29. The parties disagree on the meaning of that provision. The union argued that salary note G29 does not state that only employees holding home positions in the Fire Branch classified at the specified classifications are entitled to the increases. Therefore, any employee holding a position classified at one of the specified classifications and performs work in the Fire Branch, is entitled to the increases under the salary note, regardless of where in the Ministry his/her home position is. The employer submitted that the language is clear that the increases specified in salary note G29 are applicable only to positions within the fire branch. In the alternative, employer counsel submitted that these employees are not entitled to the increases in the salary note in any event, because they did not perform the core duties of a Resource Technician in the Fire Branch, which is front line fire suppression.
5In interpreting the salary note I shall have regard to the following observation made by the Board in Re AMAPCEO and MGS, 2011-0995 (Dissanayake) at para. 7, following a review of the law:
It follows from the foregoing that there is a presumption that the parties intend what they have expressed. Where there is no ambiguity in what the parties have expressed, effect must be given to that notwithstanding any unfairness or inefficiencies that may result. A related principle is that in interpreting collective agreements, it must be presumed that all of the words used are intended to have some meaning and are not intended to be mere verbiage without significance. (See generally, Brown & Beatty, Canadian Labour Arbitration, at 4:2000).
6I also note that this is a grievance claiming a monetary benefit. That, therefore, brings into play the well-established principle that “the onus is upon the union to establish that the employer has agreed in clear and unequivocal terms to provide a money benefit to employees as part of the compensation they are to receive for their labour”. Re Noranda Mines Ltd. [1982] 1 W.L.A.C. 246 at p. 261 (Hope).
7With these principles in mind I turn to the language in salary note G29. By the way that language is structured, the stipulated increases are attached to “positions” and not to employees. To be eligible the position must be classified at the RT 1, 2, 3, or RTS 1, 2, 3, 4 levels. It is agreed that positions classified at those levels exist in the Fire Branch as well as other areas within the Ministry of Natural Resources. In salary note G29 the parties have stipulated that salary rates of positions within those classifications “in the Aviation and Forest Fire Management Branch of the Ministry of Natural Resources” will be increased. If the intention was to grant the wage increases to all positions classified as RT 1, 2, 3, and RTS 1, 2, 3, 4, the parties would not have used the words “in the Aviation and Forest Fire Management Branch” of the Ministry. They would have simply stated positions classified at etc. “in the Ministry of Natural Resources”. To accept the union’s interpretation would be to treat those words as mere verbiage without meaning or significance. That would be contrary to the principle set out in Re AMAPCEO and MGS (supra). For those reasons, the Board prefers the interpretation advocated by the employer that salary note G29 benefits only those employees holding a position in the Fire Branch classified at the RT 1, 2, 3 level or the RTS 1, 2, 3, 4 level.
8Since none of the subject employees held such positions in the Fire Branch, they do not benefit from the pay increases set out in salary note G29.
9The grievance is therefore dismissed.
Dated at Toronto, Ontario this 31st day of October 2014.