P/0006/01

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Group Grievance

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Mike Barton, Mike Bishop, Sue Boles, Liz Coccia, Jim Craig, Nelson Decosta, Rick Dejonge, Dennis Dutkus, Carmen Fraser, Neil Graham, Jim Hogan, Phill James, Roger Long, Debbie O’Donnell, Joe Piedl, George Serpa, Sam Swain, Scott Stewart, Sheila Zub

FOR THE EMPLOYER

Doug Campbell, Staff Relations Officer Human Resources Branch Ministry of Correctional Services

HEARING

November 22, 2001.

Decision

The grievors are all employed as Operational Managers (OM-16, Schedule 5) at Hamilton-Wentworth Detention Centre within the Ministry of Correctional Services (Ministry). On April 19, 2001, they grieved that they should be paid shift premium in addition to overtime payments because members of Ontario Public Service Employee's Union (OPSEU) are entitled under their collective agreement to be paid both where applicable. The central argument was that it was an unfair labour practice to allow OPSEU members "pyramid" payments, that is both overtime and shift premium, when managers were not paid the same way. Managers are receiving overtime but not shift premium. The grievors argued that it was unfair for an acting OM16 to be paid at the rate of the manager, but benefit from shift premium as well, because of the terms of the collective agreement. The acting OM16 could end up being paid more than a permanent manager. Further, the maximum pay for a CO2 is $22.32 per hour and the minimum pay for an OM16 is the same, so a CO2 could end up being paid more with both overtime and shift premium.

The grievors submitted further that although the Public Service Act was amended to prohibit pyramid payments to managers in April 1999 and made effective in April 2000, the managers were not notified of the change. They only became aware that they were not receiving shift premium on April 12, 2001. Finally, the grievors argued that the past practice of paying both, obliged the employer to continue and that the legislation itself was unjust.

Mr. Campbell, argued for the Ministry that the board should dismiss the grievance. He submitted that previous decisions of the board had held that managers are not entitled to rely on terms of the OPSEU collective agreement, and the employer's past practice of paying managers similarly to the bargaining unit, to claim entitlements. Mr Campbell submitted that the grievors were being paid properly according to the provisions of the Public Service Act, and there was no evidence of bad faith or discrimination before the board. Finally, he agreed that here was no longer a "compression policy" in effect so the claim that the grievors should be paid shift premium so as to maintain a pay gap between he CO2s and OM16s files must fail. Mr. Campbell cited the following cases to the board: Blakney et al (P/0144/96); Smith (P/0028/99); Armstrong et al (P/0024/99); Easto et al (P/0025/99); Johnson, Smith (P/0001/99); Newman et al (P/0003/98).

Decision

Having carefully considered the submissions of the parties, I find that I must dismiss the grievances. The board has held consistently that a claim by managers, based on the argument that bargaining unit members receive the benefit and therefore OM-16s should likewise be entitled, must fail. The board held in Newman et al:

. . . management employees have no legal entitlement based on terms and condition of employment accorded to bargaining unit members as a result of the negotiation of a collective agreement.

The parties agreed to the facts as presented for the purposes of the employer's motion to dismiss. As to the argument by the grievors that the current method of paying managers and bargaining unit members may lead to the bargaining unit member, when earning overtime and shift premium, being paid more, there is no evidence to support a breach of the grievors' working conditions and terms of employment. The representative of the employer stipulated that the Ministry no longer has a "compression" policy or practice of ensuring a pay gap between management and the bargaining unit. And certainly the wage rates make that clear. An OM16 at the minimum end of the pay scale earns the same as the CO2 at the maximum.

Finally there was no evidence of bad faith, arbitrariness or discriminations. Given these reasons, the grievances are hereby dismissed.

Dated at Toronto, this 14^th day of January 2002.