GSB# 2018-2587; 2018-2588; 2018-2589; 2018-2590; 2018-2591; 2018-2592; 2018-2593; 2018-2594 2018-2595; 2018-2596; 2018-2597; 2018-2598; 2018-2599; 2018-2600; 2018-2601; 2018-2602; 2018-2603; 2018-2604; 2018-2605; 2018-2606; 2018-2607; 2018-2608; 2019-1134

UNION# 2018-0112-0013; 2018-0112-0014; 2018-0112-0015; 2018-0112-0016; 2018-0112-0017; 2018-0112-0018; 2018-0112-0019; 2018-0112-0020; 2018-0112-0021; 2018-0112-0022; 2018-0112-0023; 2018-0112-0024; 2018-0112-0025; 2018-0112-0026; 2018-0112-0027; 2018-0112-0028; 2018-0112-0029; 2018-0112-0030; 2018-0112-0031; 2018-0112-0032; 2018-0112-0033; 2018-0112-0034;

2019-0112-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Baxter et al)

Union

and -

The Crown in Right of Ontario

(Ministry of Children, Community and Social Services)

Employer

BEFORE

Joseph Carrier

Arbitrator

FOR THE UNION

Richard Blair

Ryder Wright Blair & Holmes LLP

Counsel

FOR THE EMPLOYER

Regina Wong

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

October 23, 2019

Decision

1In the case presently before me at the Grievance Settlement Board, 23 members of the Union, OPSEU, grieve that their respective pay rates were improperly established by the Employer in its implementation of an agreement between the parties to promote the group to a higher classification. The employees in question occupied the position of Community Behaviour Consultant which position, prior to the Agreement, was within the Childcare Worker 3-09512 classification at the Ministry of Children, Community and Social Services. On April 5, 2018 through a Joint System Sub-Committee of the CERC, the Parties agreed that the group should be promoted to the Case Worker, Mental Health and Social Services-05509 class effective retroactively to January 1, 2017. That reclassification would have been a simple matter pursuant to the terms of the Collective Agreement with respect to promotions but for the fact that the CCW3 classification as set out in the Wage Schedule to the Collective Agreement was based upon a 40 hour week and a five step Schedule whereas the new classification of Case Worker Mental Health and Social Services-5509 was based upon a 36 ¼ hour work week and a seven step grid. The relevant provisions of the Collective Agreement with respect to promotion appear in Article 7 of the Collective Agreement as follows:

ARTICLE 7 – PAY ADMINISTRATION

7.1.1 Promotion occurs when the incumbent of a regular position is assigned to another position in a class with a higher maximum salary than the class of his or her former position.

7.1.2 An employee who is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his or her present rate of pay, except that:

(a) 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, which amount will be considered as a one-step increase;

(b) a promotional increase shall not result in the employee’s new salary rate exceeding the maximum of the new salary range except where permitted by salary note.

2The parties agreement with respect to the implementation of the proposed promotion of this group was reflected in a Memorandum of Agreement dated April 5^th, 2018. Attached to this Decision is a copy of the Memorandum of Agreement together with Appendix ‘A’ to it, identifying 27 Community Behaviour Consultants (CBR’S), 22 of those 27 CBR’s are Grievors in this matter. Additionally, of the 27 on the MOA list, Taunya Stevens grieved in 2019 (see GSB #2019-1134 and OPSEU #2019-0112-0002) and was added as the 23^rd individual Grievor here on agreement of the parties.

3Counsel agreed that, of the seven paragraphs set out in the Memorandum of Agreement, for the current purposes paragraphs numbered 3, 4, and 5 could be disregarded. Accordingly, the following extract from that Memorandum are relevant here:

WHEREAS the Parties reviewed the classification of the Community Behaviour Consultant (Child Care Worker 3 – 09512) positions at the Ministry of Children and Youth as part of the Joint System Subcommittee (JSSC) of the CERC pursuant to Appendix 7 of the 2015-2017 OPSEU Collective Agreement;

The Parties now agree to the following on a without precedent and prejudice basis as a final resolution to any and all claims with respect to the classification and compensation level for the positions outlined in the attached Appendix A:

The Employer agrees to reclassify the positions listed in ‘Appendix A’ of this agreement to the Case Worker, Mental Health and Social Services (05519) class, effective January 1, 2017.
Employees in the position as outlined in ‘Appendix A’ will receive a promotional increase effective January 1, 2017. For clarity, the new salary rate for the affected employees is in accordance with the salary schedule outlined for the Case Worker, Mental Health and Social Services (05519) class in the OPSEU Collective Agreement.
The Community Behaviour Consultant positions will remain on a 4-7 schedule (40 hour week), notwithstanding the fact that the Case Worker, Mental Health and Social Services (05519) class is on schedule 3-7 (36 ¼ hour week). For clarity, all current and future incumbents in this position will be paid at an hourly rate based on the appropriate Case Worker, Mental Health and Social Services (05519) rate, and calculated for a 40-hour week.
The Employer agrees to implement the reclassification as set out above within three (3) months of the signing of this agreement.

4It is important to note that the authors of the Memorandum of Agreement (the MOA) inadvertently identified the Case Worker, Mental Health and Social Services (CWMHSS) class as 05519 whereas the correct class is 05509.

5The salary schedule for the two relevant classifications as at January 1, 2017 are reflected in the then current Collective Agreement as follows:

09512 CHILD CARE WORKER 3

1/1/2017

1,069.38

1,102.46

1,127.97

1,153.54

1,188.13

05509 CASE WORKER, MENTAL HEALTH AND SOCIAL SERVICES SA

1/1/2017

970.96

1,000.98

1,045.32

1,091.68

1,140.08

1,190.67

1,226.40

6In addition to the difference with respect to the 40 hour week versus the 36 ¼ hour week it will be seen that the matter is further complicated by the fact that the rates in the Collective Agreement are weekly rates as opposed to hourly rates and it is in part that discrepancy and the manner in which the parties set out their agreement in the memorandum which has led to the current dispute.

THE POSITION OF THE PARTIES

7Mr. Richard Blair, counsel for the Union, took the position that the Memorandum of Settlement should be followed as written with respect to the implementation of its terms. From the Union’s standpoint the agreement should be implemented one provision at a time starting with paragraph 1 in the following way:

Paragraph 1 of the agreement requires the reclassification of the Community Behaviour Consultants (CCW3) to the Case Worker Mental Health and Social Services class effective January 1, 2017.
Paragraph 2 stipulates that those employees should receive a promotional increase at that time. Mr. Blair submits that this is the first step in implementing the new Memorandum, that is, the individual employees should be placed on the higher grid in accordance with Article 7 (supra) noted above. Accordingly, the employee should be placed in the new class in the grid position which is no less than 3% above his then current rate without regard to the discrepancy in hours between the two grids. Accordingly, an employee at Step 2 of the CCW3 grid receiving a weekly rate of $1,102.46 for 40 hours of work would graduate to the 5^th step on the CWMHSS grid being $1,140.08 weekly. Again, the discrepancy in weekly hours has not yet been taken into consideration. Since most of the affected employees are at the highest rate in the CCW3 class, the Union’s position would take them from a weekly rate of $1,188.13 on the CCW3 grid to the final step in the CWMHSS grid being $1,226.40.

8Having implemented the promotional increase it was the Union’s position that the next step in the Memorandum as described in paragraph 6 required a conversion from the 36 ¼ hours per week to the 40 hour week. This would entail the following with respect to the two groups of employees in question, the first at Step 2 of the CCW3 rate and the second at the fifth step of the CCW3 rate. On the CWMHSS grid the weekly rate based on 36 ¼ hours for the second step employee upon promotion would be $1,140.08. That means $31.45 per hour which when converted to 40 hours per week would result in a weekly salary of $1,258.02.

9For an employee at the top of the CCW3 rate, his new weekly rate upon promotion to the CWMHSS grid would be $1,226.40. Based on 36 ¼ hours that would result in $33.80 per hour which then converts to a weekly salary of $1,353.27 for 40 hours of work.

10According to Mr. Blair this is the proper application of the Memorandum of Agreement. It entails a three step process:

Apply the promotional increase on the new grid in accordance with Article 7 of the Collective Agreement.
Extrapolate from that the hourly rate for the employee.
Calculate the new weekly salary by multiplying the hourly rate by 40 hours.

11According to Mr. Blair, the Employer’s implementation involved the establishment of a new grid for this group of employees which was not indicated or required pursuant to the Memorandum of Agreement. Furthermore, on implementing the settlement in that way, the Employer failed to follow in order the three step procedure as stipulated in paragraph 1, 2 and 6 of the Memorandum of Agreement.

12Ms. Regina Wong counsel for the Employer took the position that the Memorandum of Agreement must be read as a whole and not applied as a step 1, 2, 3 process as proposed by the Union. Rather, the weekly rates set out in the Collective Agreement for the CWMHSS classification are premised on 36 ¼ hours. In order to make a reasonable comparison with the weekly rates for the former CCW3 member one must first ascertain the hourly rates for the purposes of a proper comparison. Paragraph 6 of the Memorandum is quite clear in stipulating that the rate to be paid in the new classification is an hourly rate calculated for a 40 hour week rather than the existing 36 ¼ hours. Accordingly, the proper approach is to determine first the hourly rates at the various seven steps in the promotional classification. In a similar fashion the hourly rate for the CCW3 class should be extrapolated from the weekly rates described in the salary grid. In this way a proper comparison can be made on the basis of 40 hours to 40 hours rather than 40 hours to 36 ¼ hours. To apply the second paragraph of the Memorandum of Agreement as the first step in the process is to disregard or rather read that paragraph in isolation of the rest of the terms agreed upon. In interpreting and applying contractual terms it is appropriate to read them in the context of the entire agreement rather than in isolation. Here a conversion must be made in the new classification from 36 ¼ hours weekly to 40 hours weekly. In that way a reasonable comparison of rates can be made and the agreement can be applied in its totality rather than piece by piece as proposed by the Union.

13According to the Employer, then, the following hourly rate comparisons should be made between the two classifications as follows:

09512 CHILD CARE WORKER 3 – HOURLY RATE STEP 1 2 3 4 5

1/1/17 $26.73 $27.56 $28.20 $28.84 $29.70

05509 / 055 CASE WORKER, MENTAL HEALTH AND SOCIAL SERVICES – HOURLY RATE STEP

1 2 3 4 5 6 7

1/1/17 $26.79 $27.61 $28.84 $30.12 $31.45 $32.85 $33.83

14Based upon this comparison of hourly rates, a Child Care Worker 3 at Step 2 whose rate was $27.56 hourly would be placed on the promotional grid at no less than three percent (3%) above his then current hourly rate. That employee would therefore go from $27.56 per hour to a promotional rate of $28.84 per hour on the existing Case Worker Mental Health and Social Services grid. In effect the Employee’s weekly rate would go from $1,102.46 for 40 hours to $1,153.60 for 40 hours.

15With respect to an employee at the top rate as a Child Care Worker 3 his hourly rate upon promotion would go from $29.70 per hour to $31.45 per hour. His weekly rate will have increased from $1,188.13 to $1,258.00 for a 40 hour week.

16In order to demonstrate the results of the respective approaches by the Employer and the Union, Ms. Wong prepared and provided the following charts which demonstrate the comparison between the two and the resulting percentage increase in salary for employees previously at Steps 1 to 5 in the CCW3 class when moved to the new class pursuant to the Employer’s position and the Union’s position. Ms. Wong pointed out that the increases pursuant to the Employer’s application of the Memorandum resulted in promotional increases on a weekly basis consistent with the provisions of Article 7 of the Collective Agreement that is no less than three percent (3%) and in most cases a reasonable percentage more than the base three percent (3%). Whereas, pursuant to the Union’s proposal all employees moving from the CCW3 class to the new CWMHSS class would receive exceptional increases of roughly fourteen percent (14%) and more. That discrepancy is, of course, the result of the relatively low weekly rates in the new classification compared to those in the CCW3 classification since those in the new CWMHSS grid reflect only 36 ¼ hours work per week.

17The following charts illustrate the different impact of the two positions:

Effective January 1, 2017

Employer’s Position

Child Care Worker 3 Case Worker, Mental Health and Social Services

Old Step Weekly salary New Step in Weekly Salary Increase in

05509 Salary

Step 1 $1,069.38 Step 2 $1,104.53 3.3% Step 2 $1.102.46 Step 3 $1,153.46 4.6% Step 3 $1,127.97 Step 4 $1,204.61 6.8% Step 4 $1,153.54 Step 4 $1,204.61 4.4% Step 5 $1,188.13 Step 5 $1,258.02 5.9%

Union’s Position

Child Care Worker 3 Case Worker, Mental Heath and Social Services

Old Step Weekly salary New Step in Weekly Salary Increase in

05509 Salary

Step 1 $1,069.38 Step 5 $1,258.02 17.6% Step 2 $1.102.46 Step 5 $1,258.02 14.1% Step 3 $1,127.97 Step 6 $1,313.84 16.5% Step 4 $1,153.54 Step 6 $1,313.84 13.9% Step 5 $1,188.13 Step 7 $1,353.27 13.9%

18It was essentially the Employer’s position that one must consider the entire Memorandum of Agreement and apply all provisions simultaneously rather than in progression as suggested by the Union. That the parties would have meant in their agreement to provide such significant increases to this group of employees is unreasonable considering that Article 7 of the Collective Agreement points to promotional increases which relate to three percent (3%) rather than those well in excess of thirteen percent (13%) as proposed by the Union. The Employer’s position does not give rise to anomalies or unfairness with respect to other employees enjoying promotions whereas the Union’s creates exceptional increases. Here, the Parties’ agreement in paragraph 2 referred only to “a promotional increase” for the group of employees from one class to another. It did not speak to any increase greater than a regular promotional increase.

19In support of their respective positions the parties referred to the following authorities:

Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, 2014 CarswellBC 2267.
Ontario Public Service Employees Union, Local 380 v Muskoka Algonquin Healthcare, 2019 CanLII 78845 (ON LA).
Brown & Beatty, Canadian Labour Arbitration at 4:200 – The Object of Construction: Intention of the Parties.
Lac du Bonnet (Town) and IUOE, Local 9887 (Thompson), Re, 2012 CarswellMan 605.
Ontario Public Service Employees Union (Gilchrist) and Ontario (Northern Development and Mines), GSB No. 2010-1064 (February 24, 2015).
Toronto District School Board v CUPE, Local 4400, 2009 CanLII 66991 (ON LA).
OPSEU (Williams/Barber) and Ontario (Ministry of Correctional Services), GSB No. 1990-1448, 1449, 1466 (February 5, 1991).
Ontario Power Generation and Society of Energy Professionals, 2012 CanLII 81972 (ON LA), 2012 CarswellOnt 16996 (Ont. Arb.) (G. Surdykowski).
AMAPCEO and Ontario (Treasury Board Secretariat), 2015 CarswellOnt 20167, 125 C.L.A.S. 221 (Gail Misra).
Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Treasury Board Secretariat), 2017 CanLII 30335 (ON GSB), G.S.B. No. 2016-0619 (N. Dissanayake).

DISCUSSION AND DECISION

20In my resolution of this matter I have taken into consideration counsels submissions, the documents provided including wage grids for the two relevant classifications as well as speculative grids based on the parties respective positions together with the jurisprudence introduced and relied upon by the parties with respect to the principles of interpretation. Typically in labour arbitration those principles have to do with the interpretation and application of provisions of Collective Agreements. However, the case at hand turns on the interpretation and application of a Memorandum of Agreement between the parties dealing with the promotion of a group of employees from one classification to a higher classification. There was no dispute between the parties that in the interpretation and application of that Memorandum the arbitral jurisprudence respecting Collective Agreements should be applied in my determinations.

21In respect to the principles of interpretation in cases such as this, decisions of this Grievance Settlement Board have in recent years often relied on and cited the principles enunciated by arbitrator Surdykowski in the Ontario Power Generation case (supra). Indeed, arbitrator Misra in her 2015 Treasury Board Secretariat case (supra) was dealing with the interpretation of a Letter of Understanding regarding the reclassification of certain positions in the bargaining unit. In doing so she referred and relied upon, as do I in this case, the principles enunciated by arbitrator Surdykowski in that case. In her reasoning, arbitrator Misra refers to that case and the principles enunciated there in the following terms at paragraphs 35 and 36 of her decision as follows:

35 In Ontario Power Generation and Society of Energy Professionals (Severance Pay for Temporary Employees), Re, 2012 CanLII 81972 (ON LA), 2012 CarswellOnt 16996 (Ont. Arb.) (G. Surdykowski), in discussing the rules of Collective Agreement interpretation, the arbitrator wrote as follows:

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.
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…
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…
For 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.

22As indicated earlier, it is my view that the principles set out in the Ontario Power Generation case (supra) apply equally to the matter before me. For purposes here, it is important to note the principle that words are to be given their ordinary meaning unless doing so would lead to an illegal or absurd result. On the other hand, the words used or to be interpreted must be read in the context of the entire agreement and, as arbitrator Surdykowski specified “which preserves the spirit and intent of the” agreement. Finally, as noted in that decision, if the issue involves a monetary benefit such an entitlement “must be derived from clear Collective Agreement language, and that such an entitlement cannot be inferred or implied…”.

23In the case at hand, the competing interpretations or applications asserted by the Union and the Employer result in significant differences in pay rates for each of the employees who are Grievors in this matter. Accordingly, for the Union’s interpretation to apply the language of the Memorandum of Agreement must be clear and unambiguous to support that interpretation. Furthermore, a proper interpretation of the challenged agreement must take into consideration the entirety of that agreement read in the context of the Collective Agreement, in particular Article 7, which deals specifically with promotions and must be applied here in order to give life to the April 5^th, 2018 agreement.

24Considering those principles, it is my view that the Union’s position must fail for the following reasons:

The Memorandum of Agreement must be read in its entirety. It is not appropriate in my view to isolate paragraph #2 and apply it as first in a series of provisions to be implemented. Rather, the entire agreement must be considered in order to properly ascertain the intention of the parties.
Here, although appearing near the end of the Memorandum of Agreement, the parties have clearly stated that employees are to be “paid at an hourly rate based on the appropriate Case Worker, Mental Health and Social Services (05519) (read 05509) rate and calculated for a 40 hour week”. That provision specifically referring to hourly rates clarifies the parties intention to compare apples to apples rather than apples to oranges. More specifically, in applying the promotion provisions of Article 7 of the Collective Agreement which dictates pay rates on promotion to the next higher rate that is no less than three percent (3%) in the new class, the comparison must be to hourly rates rather than weekly rates since that is the rate referred to in para. 6 of their MOA.
Recognizing that it is the existing hourly rates that must be compared between the two classes in determining the next higher step which is not less than three percent (3%) carries out the intent of paragraph 6 of the MOA and Article 7 of the Collective Agreement. To blindly apply the promotion provision to a classification which is premised on a 36 ¼ hour week defeats any reasonable comparison of the two grids. Clearly, the latter that is the 36 ¼ hour weekly grid will be relatively lower than the weekly rates for 40 hours of work represented in the CCW3 grid.
Having made the appropriate comparison for the hourly rates and then slotting employees on the new grid with increases of no less than three percent (3%) hourly, their weekly rates of pay can easily then be calculated by multiplying each individual rate by forty.
I recognize that Mr. Blair did refer me to a provision of the Operating Policy regarding Assignments. After first outlining provisions respecting initial assignments for new employees, the policy goes on to deal with Subsequent Assignments. Provisions there to determine whether or not a subsequent assignment is a promotion state:

“7.2 Subsequent Assignments

Whether a subsequent assignment is a promotion, demotion or lateral assignment, pay is determined by comparing the salary range maximums of the employee’s current and new class.

To determine whether an employee’s assignment is a promotion, demotion, or a lateral assignment, class salary maximums must be compared:

For full-time employees in classes with open ranges, comparison must be based on annual salary maximums;

For full-time employees in classes with steps in the salary range, comparison must be based on either the weekly or hourly maximums.

When the subsequent assignment involves a move from a 40 hours-per-week class to a 36 ¼ hours-per-week class, weekly rates must be compared to determine pay.”

There was no other evidence offered respecting when and how the parties applied that policy, however, it is clear that in the case of such assignments from a 40 hour to a 36 ¼ hour classification it is clear that the employee will be assuming the lower weekly hours that apply for his new classification. That, however, is not the case before me where the parties have specifically provided that these Community Behaviour Consultants, formerly CCW3s, will continue to work 40 hour weeks. In the circumstances, the policy provision referred to is not helpful in the application of the Memorandum of Agreement before me.

With respect to the application of the Memorandum of Agreement implemented by the Employer, Mr. Blair on behalf of the Union took exception to the creation of a new grid with weekly rates premised on the Employer’s recalculation of the 05509 grid converted from a 36 ¼ hours week to 40 hours weekly. While it is true that the agreement did not specifically require the creation of a new grid to reflect the 40 hour work week, in doing so the Employer did not violate that agreement but simply provided a basis upon which staff and employees alike both current and future might easily identify where they stood in relation to future increments. It did not in itself affect the proper implementation of the Memorandum of Agreement.
It will be seen that once the comparison of the two grids is made with hourly rates the promotional increases on an hourly basis received by each employee are within the parameters of the promotional increases contemplated in Article 7 of the Collective Agreement, that is, they moved to the next higher weekly rate in the new class which was no less than three percent (3%) above their earlier rate in the former class. That in my view is a reasonable result which was contemplated and intended by the parties.
It would in my view be unreasonable to have implemented the Union’s proposal which would entail applying promotional increases from one class premised at 40 hours weekly to another class premised on 36 ¼ hours weekly. Clearly the weekly rates in the 36 ¼ hour grid will be relatively lower than the weekly rates for employees working 40 hours weekly. Implementing the promotional provision comparing 36 ¼ hour weekly rates to 40 hour weekly rates as proposed by the Union would create unusually higher promotional increases than the three percent (3%) guidelines stipulated in Article 7 of the Collective Agreement. Indeed, the Union’s proposal would result in increases for the entire group at the lowest end being no less than 13.9 percent higher than the weekly rate they had been paid in the CCW3 classification. Should that have been the Parties’ intention, as indicated in the Ontario Power Generation case, the Memorandum of Agreement ought to have more clearly stipulated such a result. I am not satisfied that that was the Parties’ intention. Indeed taking the agreement as a whole I am satisfied that the parties intended that the promotional increases received by this group of employees should be consistent with the increases contemplated by Article 7 of the Collective Agreement.
Indeed, paragraph 2 itself which the Union relies upon clearly states that the Employees involved “will receive a promotional increase effective January 1, 2017”. That in my view, reinforces the Parties’ intent in the MOA to provide an increase consistent with the promotional provisions of Article 7 and not the exceptional increases which would result from the union’s view of the MOA.
In all of the circumstances it is my view that the Parties here intended in their Memorandum of Agreement to provide a promotion to this group of employees to a higher classification. In so doing it was intended to ensure that they received promotional increases commensurate with those to which they would otherwise be entitled under Article 7 of the agreement. Finally, it is my view that the Employer’s application and implementation of the Memorandum and its comparison of rates between the two classes based on hourly rates as opposed to weekly salaries to determine their promotional weekly rates in the CWHMSS 05509 class was appropriate and commensurate with the Parties’ MOA and Article 7 of the Collective Agreement.

25In the circumstances, the grievance must be dismissed.

Dated at Toronto, Ontario this 12^th day of December, 2019.

MEMORANDUM OF AGREEMENT

Between:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU)

(“the Union”)

-and-

THE CROWN IN RIGHT OF ONTARIO as represented by the

Treasury Board Secretariat

(“the Employer”)

WHEREAS, the Parties reviewed the classification of the Community Behaviour Consultant (Child Care Worker 3 – 09512) positions at the Ministry of Children and Youth as part of the Joint System Subcommittee (JSSC) of the CERC pursuant to Appendix 7 of the 2015 - 2017 OPSEU collective agreement:

The Employer agrees to reclassify the positions listed in ‘Appendix A’ of this agreement to the Case Worker, Mental Health and Social Services (05519) class, effective January 1, 2017.
Employees in the positions as outlined in ‘Appendix A’ will receive a promotional increase effective January 1, 2017. For clarity, the new salary rate for the affected employees is in accordance with the salary schedule outlined for the Case Worker, Mental Health and Social Services (05519) class in the OPSEU collective agreement.
The parties agree that, for the employees listed in ‘Appendix A’, who were at the maximum of the Child Care Worker 3 - 09512 salary range and have been promoted will have a new anniversary date of January 1, 2017 for the purpose of merit increases as provided for in Article 7.1.3(a) of the OPSEU collective agreement.
The parties agree that, for the employees listed in ‘Appendix A’, who were at a rate less than the maximum of the Child Care Worker 3 – 09512 salary range and have been promoted will retain their current anniversary date for the purpose of merit increases as provided for in Article 7.1.3(b)(2) of the OPSEU collective agreement.
For clarity, employees listed in ‘Appendix A’ who were on temporary assignment on the effective date of the reclassification will have their home salary adjusted upon reassignment to their position in accordance with the Pay on Assignment Operating Policy.
The Community Behaviour Consultant positions will remain on a 4-7 schedule (40 hour week), notwithstanding the fact that the Case Worker, Mental Health and Social Services (05519) class is on a schedule 3-7 (36.25 hour week). For clarity, all current and future incumbents in this position will be paid at an hourly rate based on the appropriate Case Worker, Mental Health and Social Services (05519) rate, and calculated for a 40-hour week.
The Employer agrees to implement the reclassification as set out above within three (3) months of this agreement.

Dated at Toronto, this 5th day of April, 2018

For the Union: For the Employer:

April 5, 2018

Appendix A- Community Behaviour Consultants - MCYS

POSITION NBR.

DESCR

JOBCODE

NAME

Job Code Retro January 2017

00057854