IN THE MATTER OF AN ARBITRATION BETWEEN: CORPORATION OF THE COUNTY OF GREY (GREY COUNTY SOCIAL SERVICES) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION POLICY GRIEVANCE JOB POSTING BEFORE: S.L. STEWART ARBITRATOR FOR THE UNION: FOR THE EMPLOYER: M. BEVAN D. WAKELY THE HEARING IN THIS MATTER WAS HELD IN OWEN SOUND, ONTARIO, ON NOVEMBER 19, 2013
AWARD 1. The grievance before me is dated March 13. 2013. The grievance concerns a dispute between the parties regarding the interpretation of Article 10.01(c) of the Collective Agreement, a provision relating to temporary vacancies. The dispute arises from a posting for the position of Training and Policy Worker. The parties were in agreement that the outcome of the grievance would not affect the successful incumbent. However, the parties remain in dispute about the interpretation of Article 10.01(c) and, accordingly, seek a resolution of this dispute to assist in addressing how future temporary vacancies will be approached. It is the Union s position that the senior qualified applicant is entitled to the vacancy while it is the Employer s position that it is entitled to award the position to the best qualified applicant, with seniority coming into play only in the event of the applicants possessing relatively equal qualifications. 2. The job competition provision of the Collective Agreement was altered in the round of collective bargaining for the January 1, 2011 to December 31, 2012 Collective Agreement. Article 10.01(c) had provided that temporary vacancies will be posted for competition among interested members of the bargaining unit. It was amended by the inclusion of the phrase and awarded by seniority from a list of qualified bargaining unit members who have expressed an interest as indicated 2
below. It was common ground that the Employer had proposed an amendment to the language, however given that the language that ultimately found its way into the Collective Agreement does not reflect the Employer s original proposal, I agree with Mr. Wakely that no inference can be drawn from the fact that it was the Employer that proposed an amendment. 3. The amended language is reflected in the bolded portion of the provisions reproduced below: Article 10 Job Competitions 10:01 (a) Posting of Permanent Vacancies: Vacancies for permanent bargaining unit positions shall be posted on bulletin boards in all work areas frequented by bargaining unit employees for a period of not less than five (5) working days. (b) Temporary vacancies are defined as new positions with a definite term of twelve (12) months or less or permanent positions temporarily vacated by an incumbent for a period of twelve (12) months or less. These twelve (12) month periods can be extended by mutual agreement of the Parties, such mutual agreement not [sic] be unreasonably withheld by either Party. (c) Posting of Temporary Vacancies: The parties are agreed that all temporary vacancies in excess of one (1) month, for which advanced planning can take place, will be posted for competition and awarded by seniority from a list of qualified bargaining unit members who have expressed an interest. (d) Trial Period: Within 30 days of starting a new position within the Corporation of Grey, an employee can voluntarily return to the position formerly occupied, without loss of 3
seniority. Within 30 days of starting in a new position within the Corporation of the County of Grey, if in the employer s opinion, the employee is unable to perform the core duties of the position, the employee shall be returned to the position formerly occupied, without loss of seniority. The vacancy resulting from the posting may be filled on a temporary basis until this thirty (30) day trial period is completed. 10.02 A posting of vacancy shall occur as soon as is practicable following notice of termination by an incumbent or the last day of employement of an incumbent should no notice be given. 10.03 Postings shall include the following information: name and description of position; qualifications required; hours of work; salary range; deadline for receipt of applications. A copy of all postings shall be sent to the unit steward. 10.04 Bargaining Unit First Consideration: The Employer shall receive and consider applications by members of the bargaining unit prior to requesting and considering applications from anyone outside the bargaining unit. 10.05 Selection Factors: In assessing the applicants for any vacancy the employer shall consider the following factors: (a) the skills, qualifications and abilities of the applicant(s); then (b) the seniority of the applicants. 10.06 Information to Applicant: Upon request a member of 4
the selection panel shall meet with any unsuccessful candidate to explain the reasons why he/she was unsuccessful. 10.07 Successive Vacancies: Vacancies resulting from a successful application by an employee in the bargaining unit for another position shall be filled in the same manner as set out above. 10.08 Filling of Vacancies: All vacancies shall be filled as soon as practicable following the posting date. 4. The essence of the Union s position is that the plain language of Article 10.01(c) supports its position and must be given effect. In Mr. Bevan s submission, the phrase awarded by seniority from a list of qualified bargaining unit members clearly reflects a threshold, as opposed to a competitive clause. He referred me to Re Rexcan Circuits Inc. and C.A.W. 61 C.L.A.S. 135 (Knopf), wherein the clause in dispute provided that: postings for technical job vacancies will be awarded to the most senior applicant who possesses the skills, qualifications and experience for the job vacancy and who can perform the job within the normal familiarization period of the job. In that case the arbitrator rejected the Union s argument that the best qualified applicant was entitled to the position, concluding at p. 3 of the award that: In this contract the language is quite clear. The Article directs the Employer to award the technical job to the senior applicant who possesses the skills, qualifications and experience for the position. This means that the Employer must assess the senior 5
candidates against the relevant job duties and select the most senior person who has the skills, qualifications and experience for the job. That person may not be the best person for the job. S/he may not be the best candidate for any number of reasons. Nevertheless, the Collective Agreement obligates the Employer to select the most senior candidate who meets the threshold level of skills, qualifications and experience and who can perform the job within the normal familiarization period. 5. Mr. Bevan urges the same result in this case. He argues that the plain language of 10:01(c) constitutes a clear expression of the intent of the parties to have temporary vacancies treated on an exceptional basis from the general approach expressed in 10:05, with the position awarded to the senior qualified applicant. In his submission, the change in the language can have no other reasonable interpretation. With respect to the reference to the word competition in that clause, he submits that the phrase is simply indicative of the fact that applicants will be competing for the position in the broad sense of the word, in terms of recognition as being qualified for the position, at which point seniority will govern. 6. In his submissions, Mr. Wakely emphasized that the provisions of the Collective Agreement must be read as a whole. He referred me to the decision of the Supreme Court of Canada Bow Valley Husky (Bermuda) Ltd. v. St. John Shipbuilding Ltd. [1997] S.C.J. No. 111 where it is noted at paragraph 28 that: it is necessary to ascertain the intention of the 6
parties with respect to the particular issue from the contract documents as a whole. He referred me to Article 5 of the Management Rights clause, containing both specific and broad language retaining the right to manage the operation, including their retention, except as expressly limited by the clear and explicit language of some other provision of this agreement. Mr. Wakely emphasized that Article 10:01(c) does not contain a specific exemption from the operation of the Article 10:05, which, under the heading Selection Factors, refers to any vacancy and, in his submission, clearly contemplates the Employer s ability to assess the skills and abilities of the applicants in order to determine the best candidate for all positions, with seniority governing only in instances of relative equality. Mr. Wakely submitted that the phrase posted for competition reflects the parties intention that the Employer retain the right to consider applicants on a competitive basis, with seniority coming into play only in instances of relative equality. Mr. Wakely made reference to Re Children s Aid Society of Ottawa-Carleton and OPSEU (Laugher) [1996] O.L.A.A. No. 717 (Mitchnick) in support of his position that a posting, as contemplated by the language of Article 10.01(c), contemplates a competition. He also referred me to a Letter or Understanding between the parties, wherein the parties have agreed that developmental assignments will be considered for those who have competed for a temporary position but would not meet the qualifications for a permanent position. This Letter of Understanding goes on to 7
contain a reference to job performance being an additional factor to the selection factors specified in Article 10.05 for selection of employees who wish to compete for developmental assignments. Mr. Wakely suggested that meaning could be given to all of the relevant language of the Collective Agreement by interpreting Article 10.01(c) to provide for the awarding of the position to the best candidate who is also the most senior. 7. Mr. Wakely is clearly correct in his submission that the provisions of the Collective Agreement must be read together as a whole. However, notwithstanding the management rights clause, the fact that Article 10:05 does not exempt temporary vacancies and the reference to developmental opportunities in the Letter of Understanding, I am compelled to the conclusion that the interpretation of the language of Article 10.01(c) that Mr. Bevan urges upon me is correct. The parties specifically altered the language of Article 10 to provide for the awarding of temporary vacancies to qualified applicants on the basis of seniority. The clear implication of this specific change is that the parties agreed that temporary vacancies would be carved out of the general provisions relating to vacancies. That specific amendment, applying only to temporary vacancies, implicitly excludes the application of the any vacancy language of Article 10.05. The existence of special rules relating to developmental assignments cannot undermine this specific 8
amendment. The existence of a posting for a temporary vacancy does not compel the conclusion that the Employer is entitled to select the best qualified applicant, rather than the senior qualified applicant. It can simply be viewed as a matter of notice. The fact that some qualifications may be difficult to assess on the basis of a written application cannot be viewed as a basis for not giving the amended language its obvious meaning. The existence of a threshold clause does not preclude the possibility of the Employer assessing the candidates to determine whether they have the qualifications for the position. Indeed, this is a necessary step. The phrase for competition, while consistent with a competitive selection process, must be interpreted in light of the newly added phrase and awarded by seniority from a list of qualified bargaining unit members who have expressed an interest. The suggestion of Mr. Bevan, that the phrase for competition in context is properly viewed as in contemplation of an assessment of the applicants to determine who is qualified and as a competition between individuals in that respect, provides a manner of interpreting the newly added phrase in accordance with the natural meaning flowing from the language chosen, in accordance with the directive of the Court in Bow Valley Husky (Bermuda Ltd., supra, at paragraph 118 that: one should examine the contract as a whole with a view to searching for the intention of the parties by recognizing the natural meaning that flows from the language chosen. Here, where the parties chose to amend 9
existing language relating to temporary vacancies by inserting language that is clearly threshold language, it is my view that the position of the Union must prevail and that Article 10.01 (c) must be interpreted as requiring temporary vacancies to be awarded to the most senior qualified applicant. I so declare. I remain seized in connection with any issues arising between the parties in connection with the implementation of this award. Dated at Toronto, this 10th day of December, 2013 S.L. Stewart Arbitrator 10