GSB#2014-4308

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Association)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Gail Misra Vice-Chair

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Labour Practice Group Counsel

HEARING

December 1, 2015

Decision

1On December 19, 2014 the Association filed a dispute pursuant to Article 15.7.2 of the Collective Agreement claiming that the Employer has violated the terms of the Letter of Understanding re: Reclassification of Certain Positions (the “Reclassification LOU”). In particular, the Association asserts that the Employer has incorrectly retroactively reclassified employees in positions in Appendices A, B and C of the Reclassification LOU to August 28, 2014, and that it should have applied the pay administration rules set out at para. 10 of the Memorandum of Agreement re: Implementation of New Job Evaluation System. Had the Employer applied para. 10, the Association asserts that the affected employees whose current salary was either below the minimum of their new salary range, or below or equal to the new maximum of their new salary range, would have been moved into their respective ranges retroactive to October 1, 2013. The Association asserts that as a result of the Employer’s violation of the agreements, affected employees have not been paid their respective appropriate salaries retroactively, and may also have lost entitlement to salary adjustments, including merit increases.

2By way of remedy, the Association seeks retroactive adjustments in salary for any impacted employees in Appendices A, B or C of the Reclassification LOU; and seeks any other redress, monetary or otherwise, that may be necessary to make affected individual employees and the Association whole.

3No evidence was called in this case, and the parties made their submissions and arguments based on certain documents and two collective agreements, as well as a generally accepted version of the history of how the parties developed a job evaluation scheme for the members of the Association.

4In the 2012 to 2014 Collective Agreement, the parties agreed to a Memorandum of Agreement re: Implementation of New Job Evaluation System (the “Job Evaluation MOA”). As the Association described it, the job evaluation system that the parties use was ‘born’ in that Collective Agreement.

5The introductory paragraphs of the 2012 Job Evaluation MOA outlined the history of how the parties had reached that point, and indicated that in the collective agreement that expired on March 31, 2004, the parties had agreed that they would discuss the possibility of a new job classification/evaluation system.

6Subsequent to that, the parties had signed Memoranda of Agreement on November 26, 2003; April 5, 2005; March 27, 2007; and April 27, 2009, wherein they agreed to processes for the completion of the job evaluation project, including the negotiation of rates, salaries, and other monetary consequences of the implementation of the new job evaluation and classification system.

7The 2012 Job Evaluation MOA indicates that the parties had by that juncture reached agreement on the implementation of the new ‘Job Evaluation/ Classification System’, and outlined in detail how the system would become operational. It appears from the text of the MOA that the parties had agreed on the classification levels and salary ranges for jobs that they included in Appendix A to that MOA. However, there still remained positions in other attached Appendices that had not yet been evaluated, and as such the Joint Working Group and the Joint Steering Committee were mandated to continue with job evaluation until all remaining positions had been evaluated and agreed upon.

8At para. 4 of the MOA it was noted that Appendix C to the MOA contained all positions that had been jointly evaluated by the parties up until October 18, 2012, and whose new levels had been agreed upon; Appendix D to the MOA contained positions created prior to September 30, 2010, which had not yet been described and/or evaluated jointly by the parties; Appendix E to the MOA contained positions that the Employer had identified from Appendix C as potentially having changed significantly since they were initially described and evaluated; and, at Appendix F were positions that had been created between October 1, 2010 and the date of ratification of the 2012 Collective Agreement.

9At para. 5 of the 2012 Job Evaluation MOA the parties agreed as follows:

5. Date of Implementation

The date of implementation of the new classification levels and salary ranges resulting from implementation of the new Job Evaluation/Classification system shall be effective October 1, 2013.

10The parties agreed at para. 6 of the MOA to a multi-layered dispute resolution mechanism to address issues where there was no consensus, with the final level of resolution resting with the Deputy Minister or his or her designate.

11Para. 7 addressed the dispute resolution process for individual employees who may have a complaint arising out of the implementation of the new job evaluation system. For the purposes of this decision the dispute resolution steps are not material, except to note that at para. 7 (vii) the parties agreed that where the review process resulted in a position being assigned to a higher classification level, the resulting adjustment to the employee’s salary, if any, would be effective the date of implementation.

12The parties agreed that for jobs created on or after the date of ratification of the 2012 Collective Agreement, subject to the terms of the Collective Agreement and the terms of the MOA, the Employer retained the right to classify employees in positions, and to manage and maintain the job classification and the job classification/evaluation system on an ongoing basis following the completion of the job evaluation/classification project (at para. 8).

13Para. 10 of the MOA dealt with Pay Administration and stated as follows:

10. Pay Administration

The following Pay Administration rules pertain only to employees moving from the old job classification into the new job evaluation/classification system and have no application to other reclassifications under the collective agreement.

(a) An employee whose current salary is below the minimum of the new range for his/her position will be moved to the new minimum effective the date of implementation.

(b) an employee whose current salary is above the new minimum and below or equal to the new maximum of the new salary range for his/her position will move into the new salary range at his/her current salary effective the date of implementation.

(c) An employee whose current salary is above the maximum of the new salary range for his/her position shall maintain his/her current salary until the maximum of the new salary range exceeds their salary, at which time he or she may progress in the new range in accordance with Article 45. For clarity the employee will not be entitled to receive across the board increases, if any, while his/her salary is above the new maximum of the new salary range.

(d) The anniversary date of an employee covered by this paragraph shall remain unaffected by the movement to the new level.

(e) For clarity, Article 19 shall not apply to the movement in this paragraph.

The Association agrees that it will not initiate, pursue or support any pay equity complaint that is inconsistent with this pay administration paragraph.

14The 2012 Collective Agreement was ratified by the Association members on October 18, 2012, and became effective as of that date. Nonetheless, there is no dispute that for the purposes of the job evaluation system, the implementation date was as agreed by the parties, and outlined above, October 1, 2013, almost one year later.

15On August 3, 2014 the parties reached a new collective agreement through the signing of a Memorandum of Settlement, which comprised a cover page and an appended document that contained all the terms upon which the parties had agreed regarding the new collective agreement (the “August 2014 MOS”). The term of the new collective agreement was to commence from the date of ratification by both parties, and would expire on March 31, 2018. The 2014 Collective Agreement was ratified on August 28, 2014.

16In the August 2014 MOS the parties agreed, subject to ratification, “to the terms and conditions of the Collective Agreement as amended by the following agreed to terms”. The parties further agreed at para. 4 of the cover page of the August 2014 MOS that “except as provided otherwise in the terms of the Memorandum of Settlement, all other changes to the most recently expired Collective Agreement shall be effective on the date of ratification by both parties”.

17At para. 5 of the cover page of the August 2014 MOS the parties agreed that “the renewal Collective Agreement shall be in the form of the most recently expired Collective Agreement, as amended by the attached”, which comprised of the specific terms that had been agreed upon.

18Item 15 of the terms of the August 2014 MOU contained the “Letter of Understanding – Reclassification of Certain Positions” (as noted earlier, the “Reclassification LOU”), which states as follows:

Letter of Understanding re: Reclassification of Certain Positions

The Parties agree that the job description associated with the job description numbers set out in Appendix A and B will be replaced with the “Senior Architect Job Description” and the “Senior Project Manager Job Description”, respectively. These positions will be classified at Level 7 effective date of ratification. Further, the job description numbers set out in Appendix C will be reclassified, as described in Appendix C, effective date of ratification.

The Association acknowledges that no new regular positions have been created as a result of this Letter of Understanding. The Association agrees that Article 18 (Posting and Filling of Positions in the Regular Service) does not apply to the reclassification of the positions referenced in Appendix A and B. Further, the Association agrees that the Pay Administration Rules in Paragraph 10 of the Memorandum of Agreement re: Implementation of New Job Evaluation System applies to the impacted employees in Appendix A, B and C.

Nothing in this Letter of Understanding limits the Employer’s right to evaluate and classify positions.

Nothing in this letter limits the rights of employees in any of the positions referred to above or the rights of AMAPCEO to pursue all applicable claims filed in the dispute resolution process filed pursuant to the Memorandum of Agreement Regarding Implementation of the New Job Evaluation System.

This letter does not form part of the Collective Agreement.

Dated at Toronto, this xx day of 2014.

Dianne Colville Marc Rondeau

Chair, AMAPCEO Bargaining Team Director, Negotiations & Security Branch

Ministry of Government Services

APPENDIX A: Attached; APPENDIX B: Attached; APPENDIX C: Attached

[Letter not attached to the Collective Agreement]

(Emphasis added)

19While the parties agreed that the above-noted Reclassification LOU did not form part of the Collective Agreement, the original 2012 Job Evaluation MOA from the 2012 Collective Agreement continues to form part of the current 2014 Collective Agreement.

20The parties agree that all individual appeals arising since the new collective agreement was ratified have been resolved under the dispute resolution process in the Job Evaluation MOA, the last one having settled in September 2015.

21The Association argues that despite the parties’ agreement in the August 2014 MOS that except as provided otherwise in the terms of the MOS, all other changes to the most recently expired Collective Agreement would be effective on the date of ratification (August 28, 2014), the date of implementation as outlined in the original 2012 Job Evaluation MOA, from the 2012 Collective Agreement, continued to be the implementation date for job evaluation purposes because that MOA continues to reside in the current Collective Agreement.

22In particular, the Association states that while Item 15 of the August 2014 MOS states that the positions referred to in the three appendices to the Reclassification LOU would be classified at a certain level, or that certain job description numbers would be reclassified, “effective date of ratification”, nonetheless, since the parties had also agreed therein that the Pay Administration Rules in para. 10 of the original Job Evaluation MOA would apply to the impacted employees, therefore the implementation date should be October 1, 2013, as it was in the 2012 Collective Agreement. It urges the Board to find that the Employer violated the terms of the 2014 Collective Agreement when it maintained that the employees affected were only entitled to monies that may flow effective August 28, 2014, the date of ratification, rather than back to October 1, 2013, the implementation date.

23According to the Association, date of ratification and implementation date are two completely different concepts. To illustrate the difference, the Association points out that in Article 27, the surplusing provision, an effected employee may be considered for positions based on their level or grade at the relevant time. As such, that addresses the concept of level to which an employee was reclassified, which may be determined as of the date of ratification. However, in the job evaluation process, and for pay purposes, the Association argues that under the Pay Administration para. 10, the effected employee should have been paid back to the date of implementation, which was October 1, 2013, as that job evaluation process had not yet been completed at the time that the parties ratified the current collective agreement.

24In the alternative, the Association argues that if the Board accepts that job evaluation was over, then the Reclassification LOU, which the parties agreed to in the August 2014 MOS, makes specific reference to para. 10 of the original Job Evaluation MOA, and as that paragraph refers to the date of implementation, a defined term, the employees affected should receive retroactive pay back to October 1, 2013.

25The Employer argues that the Reclassification LOU that the parties agreed to was completely outside the job evaluation process. Reclassification and job evaluation are two different processes, and while the parties agreed in 2014 that they would utilize some aspects of the Job Evaluation MOA, they did not import all aspects into their LOU regarding specific positions that they were agreeing would be reclassified.

26The Employer states that Appendices A, B and C, referred to in the Reclassification LOU, contained positions that were still in dispute, and that in the course of settling the 2014 Collective Agreement, the parties agreed on a common classification and a change in remuneration for those groups of AMAPCEO members. They specified that certain job description numbers in Appendices A and B would be classified as either Senior Architect positions, or Senior Project Management positions, and that they would all be reclassified from a Level 6 to a Level 7 effective the date of ratification. An assortment of non-architect and project manager jobs in Appendix C were to be reclassified from their respective various levels to one level higher, again, effective the date of ratification.

27The Employer argues that since the positions in Appendices A, B and C had been disputed by the Association, they could have remained in the job evaluation process, and could have continued on in the dispute resolution process outlined therein in order to get to the Deputy Minister decision-making level. However, the Association decided to carve them out and address them in bargaining, and as such, they were no longer part of the job evaluation scheme. That was why the parties had to agree specifically about how they would be addressed. According to the Employer, it was the Association which wanted to protect the rights of individual members to dispute the reclassification, and the parties therefore agreed to import the dispute resolution process that had been agreed upon for the job evaluation process.

28According to the Employer, the Association knew that if it wanted a wage increase to be effective on a date other than the date of ratification, it had to negotiate that specifically. As an example, it points out that in Item 12 of the August 2014 MOS the parties agreed that salary rates would increase on specific dates, rather than on the date of ratification.

29The Employer states that when the parties referred to para. 10 of the Job Evaluation MOA applying to the impacted employees in Appendices A, B and C, it was to ensure that Article 19 (the regular Pay Administration provision of the collective agreement) would not apply to these reclassifications. In the normal course, Article 19.7 applies to reclassification, which would have had significant implications for the Employer. Furthermore, the Employer wanted to ensure that the posting provisions would not apply for all the positions covered by the Appendices.

30Since the parties clearly agreed that the reclassifications were to be effective the date of ratification, the Employer argues that the Board would have to go beyond the words that the parties had agreed upon in the Reclassification LOU in order to find that the implementation date should be applicable. Para. 5 of the Job Evaluation MOA addressed the date of implementation for new classification levels and salary ranges resulting from implementation of the new Job Evaluation/Classification system.

31The Employer relied on jurisprudence to the effect that in order for the Association to successfully argue for a monetary benefit flowing from the language of the August 2014 MOS, the language must be clear that the parties had negotiated the Reclassification LOU as part of the job evaluation project. Since no mention was made to that effect, the Employer argues that the Board cannot read it in.

Decision

32In reaching a decision in this case I have reviewed all of the parties’ submissions, documents submitted, and the jurisprudence relied upon by the Employer. Neither party raised any objection to my consideration of the Reclassification LOU even though the parties had agreed in the August 2014 MOS that it does not form part of the Collective Agreement. Rather, both parties argued that the issue to be decided arose squarely out of that LOU.

33It is noteworthy that Article 15.7.2 of the Collective Agreement contemplates that in the event of any dispute between the Employer and the Association, the Association has the right to file a dispute provided it does so within sixty days after the circumstances giving rise to the dispute have occurred, or have come or ought reasonably to have come to the attention of the Association. As such, it appears that there is no requirement that a dispute arise only out of the terms of the Collective Agreement.

34As was noted earlier, no evidence was called in this case and neither party has asserted that there is any ambiguity in the language of the LOU or MOS at issue. This is a case in which the issue is one of collective agreement interpretation, or more properly, the interpretation of the Memorandum of Settlement reached between the parties settling the 2014 to 2018 Collective Agreement, including the Letter of Understanding re: Reclassification of Certain Positions, which formed a part of that Memorandum.

35In Ontario Power Generation and Society of Energy Professionals, 2012 CanLII 81972 (ON LA), 2012 CarswellOnt 16996 (G. Surdykowski), in discussing the rules of collective agreement interpretation, the arbitrator wrote as follows:

17. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. Both the words that are there and the words that are not there are significant.

18. Although as a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. Although much has been written about purpose, fairness, internal anomalies, administrative cost or feasibility, and what “should be”, such considerations only come into play when the language is truly ambiguous and the arbitrator must apply established labour relations principles in order to choose between two or more equally plausible interpretations. The rights arbitrator’s task is to determine what the collective agreement provides or requires, not what he or either party thinks it should say. If the language is sufficiently clear it must be applied as written regardless of any associated costs or administrative difficulties, or any apparent fairness of the effect on either party or the bargaining unit employees. …

19. More to the point is the decision in Golden Giant Mine [[2004] O.L.A.A. No. 600 (Ont. Arb.)] which is representative of the line of arbitral authority which stands for the proposition that entitlement to a monetary benefit must be derived from clear collective agreement language, and that such an entitlement cannot be inferred or implied. …

36For the purposes of this case, the principles outlined above are equally applicable to my consideration of the language of the August 2014 MOS and the Reclassification LOU that formed part of that Settlement.

37The parties clearly agreed at para. 4 of the August 2014 MOS that except as otherwise provided in the terms of the MOS, all other changes to the most recently expired collective agreement should be effective on the date of ratification by both parties. At Item 15 of the agreed-to terms that formed a part of the MOS, the parties agreed repeatedly and specifically in the Reclassification LOU that all the positions referred to therein would be classified to their new levels effective the date of ratification.

38In the absence of any evidence to the contrary, and giving the language its plain and ordinary meaning, it is obvious that as of August 3, 2014 when they signed the Memorandum of Settlement, the parties meant for the reclassification of the various jobs to be effective on ratification, which was ultimately August 28, 2014.

39I note that the parties did not describe the Reclassification LOU as an addendum to the Job Evaluation MOA, which continued to be attached to the 2014 Collective Agreement. To the contrary, they agreed that the Reclassification LOU would not form a part of the 2014 Collective Agreement. Based on the language of the Reclassification LOU, it seems apparent that the reclassifications that were agreed to in that LOU were not a result of the implementation of the new Job Evaluation/Classification system, but rather were the product of collective bargaining in 2014. As such, I accept the Employer’s argument that the parties agreed that the date of ratification was the effective date, not the date of implementation which applied to the job evaluation process. Had the parties wanted to ensure that para. 5 of the Job Evaluation MOA applied, they could have so specified. They specified other aspects of that MOA that they wanted to be applicable, like the pay administration and dispute resolution provisions. However, rather than making any reference to the ‘implementation date’, they specified that the reclassifications would be effective from the ‘date of ratification’.

40The Association’s argument is that by importing para. 10 of the job evaluation regime into the LOU, the parties must have meant to ensure retroactivity to the date of implementation, October 1, 2013. It is worth reproducing again a part of the Reclassification LOU to see where the reference to para. 10 arises:

The Association acknowledges that no new regular positions have been created as a result of this Letter of Understanding. The Association agrees that Article 18 (Posting and Filling of Positions in the Regular Service) does not apply to the reclassification of the positions referenced in Appendix A and B. Further, the Association agrees that the Pay Administration Rules in Paragraph 10 of the Memorandum of Agreement re: Implementation of New Job Evaluation System applies to the impacted employees in Appendix A, B and C.

Nothing in this Letter of Understanding limits the Employer’s right to evaluate and classify positions.

41In the absence of evidence, there is no guidance as to what the parties meant by the language in the LOU that “further, the Association agrees that the Pay Administration Rules in Paragraph 10 of the Memorandum of Agreement re: Implementation of New Job Evaluation System applies to the impacted employees in Appendix A, B and C”, but to the extent that anything was meant, it appears from a reading of the provision as though the Association was conceding something rather than getting from the Employer a commitment that there would be retroactivity to a date 11 months before the parties were agreeing on a new collective agreement. The sentence comes in a paragraph in which the Association acknowledges that no new regular positions have been created as a result of this LOU; the Association further agrees that the posting and filling provisions of the collective agreement do not apply to the positions in the appendices to the LOU; and then it agrees that the para. 10 Pay Administration rules apply to all the impacted employees in the appendices. The next paragraph continues in a vein that suggests that there is reinforcement of the understanding that the Employer’s right to evaluate and classify positions remains unaffected by the LOU.

42It seems more likely than not that in documenting the Association’s agreement regarding para. 10 of the Job Evaluation MOA, the Employer was seeking to ensure that the special Pay Administration rules would apply to the affected employees, rather than Article 19 of the Collective Agreement, and that the Association would be committing not to initiate, pursue or support any pay equity complaint that would be inconsistent with the special pay administration regime in para. 10.

43In this instance, in light of the language of the August 2014 MOS and the Reclassification LOU, I am not faced with two equally plausible competing interpretations: What I have before me is a clear express agreement that the effective date of the Reclassification LOU is the date of ratification, and an argument that I should imply that inclusion of para. 10 of the Job Evaluation MOA meant that the parties had agreed that the date of implementation, October 1, 2013, would govern the reclassifications that had been bargained.

44In the absence of a specific commitment made by the Employer that it was agreeing to pay the reclassified employees referred to in the Reclassification LOU back to the date of implementation, October 1, 2013, I cannot infer or imply such a monetary benefit.

45What the parties appear to have been doing in reaching the Reclassification LOU was short-circuiting the job evaluation scheme and its dispute resolution mechanism (which would have left the ultimate decision in the hands of the Employer) in order to clear the decks of a large number of outstanding Association disputes. Every employee on the three appendices referred to in the Reclassification LOU was moved up by one level as a result of those negotiations so that the Association successfully negotiated increases for all the affected employees. However, from the language of the LOU, it is clear that such reclassification was only to be effective as of the date of ratification. By articulating the effective date as date of ratification, the parties in essence overrode the implementation date that had been referred to in Para. 10 of the Job Evaluation MOA.

46Furthermore, I cannot infer retroactivity to October 1, 2013, when these parties had agreed on the face of the August 2014 MOS that all changes to the collective agreement were to be effective on the date of ratification unless provided otherwise “in the terms of the Memorandum of Settlement”. Nothing in the Memorandum of Settlement states that the reclassification of the affected positions was to occur as of October 1, 2013. To the extent that this interpretation creates a conflict between two provisions within the Reclassification LOU, I am of the view that the specific language of the Reclassification LOU takes precedence over the reference to para. 10 of the Job Evaluation MOA on the interpretive principle that the specific provision must prevail over the general provision.

47For all of the reasons outlined above, this dispute is dismissed.