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REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD (the Board) NIAGARA REGION POLICE ASSOCIATION AND IN THE MATTER OF THE GRIEVANCE OF TOM CRAIG

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IN*>H; MATTER 'DE AN ARBITRATION B E T W E E N :

REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD (the Board)

NIAGARA REGION POLICE ASSOCIATION

(the Association) AND IN THE MATTER OF THE GRIEVANCE OF TOM CRAIG

BOARD OF ARBITRATION

Eva E. Marszewski - Sole Arbitrator

APPEARANCES:

For the Board:

W.B. McKaig

Michael DrAmico

For the Association:

Mike Pratt Peter Ruch Richard Frayne Gord Horne Ma1 Connolly Tom Craig

Counsel

Personnel Supervisor

- Administrator, Niagara Region Police Association - President, Niagara

Region Police Association

- Administrator, PIAO - Grievor

A hearing was held in St. Catherines, Ontario, on December 13, 1994.

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The Grievor, Tom Craig, grieved the Board's failure to select him for the position of apprentice mechanic, a position which was posted on November 23, 1993. The Grievance, which was dated February 9, 1994, specified that the Board had violated Articles 24.12, 24.13 and 24.15 of the civilian employees Collective Agreement and read as follows:

The position of Apprentice Mechanic was posted with a closing date of December 3, 1993. I applied for the position. I am presently a temporary employee performing the duties of the posted position.

On February 5, 1994, the employer advertised the position to the general public.

It is my claim that the employer is obliged by the collective agreement to consider full-time applicants first, then temps, then non-service personnel. As there were no full time applicants, and as I was the only temp to apply, and as I am qualified for the position, I should have been awarded the job.

As a remedy, I ask that I be awarded the position retroactive to December 4, 1993.

I ask that the Association support and represent me in this grievance.

At the time of the posting on November 23, 1993, the Grievor was a temporary employee. No full-time employee had applied for the posted position and the Grievor was the only temporary employee who applied. The Employer agrees that the Grievor has the knowledge and ability to perform the posted job.

Furthermore, the Employer also agrees that prior to the passage of the Em~lovment Equity Act, pursuant the provisions the Collective Agreement and the past practice between the parties, the Grievor would have been selected as the successful candidate.

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However, the Employer expressed the concern at the hearing thatif the Grievor was selected as the successful candidate, then the Employer might be in breach of the provisions of the Em~lovment Esuitv Act.

The parties were able to reduce much of the necessary evidence to an Agreed Statement of Facts which reads as follows:

Tom Craig was hired as a co-op student and worked as such from January 7th, 1992 to May 29th, 1992.

He then was hired as a temporary apprentice mechanic and worked from June lst, 1992 to November 13th 1992 and then from February lst, 1993 to date.

The position of apprentice mechanic was posted on November 23rd, 1993 with a closing date of December

3rd, 1993.

No full time employees applied.

Mr. Craig was the only temporary employee who applied

Mr. Craig has the knowledge and ability to perform the job as posted.

The Service advertised the job for external applicants (advertised Feb. 5, 1994, closing date Feb. 18, 1994)

The Association filed a grievance.

The Service suspended the consideration of external applicants.

Mr. Craig has continued as a temporary apprentice mechanic.

In response to the external advertisement in respect of this position, over 100 applications were received, Includinq 8 female applicants.

Twenty-four of those ~pplicants, including 3 females, were sufficiently qualified to warrant interviews which were scheduled but subsequently cancelled.

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[the Agreed Statement of Facts did not contain a paragraph 111

12) A hiring goal of one female apprentice mechanic was set by staff in November of 1993 and approved by the Board at the December 9th, 1993 meeting.

13) The agreed evidence of Lynn Pay is as follows:

I am the director of Human Resource Services with the Niagara Regional Police Service and have been so employed since September 1989.

In 1993, I acted on the bargaining committee for the Police Services Board. Initially, I acted in the capacity of an advisor to the Board Committee.

Towards the conclusion of negotiations, I acted as Chief Spokesperson, in the absence of my boss, Mr.

Jim Inman, C.A.O.

Negotiations commenced in the spring of 1993. The Social Contract legislation was pending, and, as a result, the parties went into negotiations without a clear understanding of what that legislation's impact would be on monetary issues. In order to get negotiations underway, the parties agreed to attempt to resolve non-monetary issues only, at least until such time as clearer direction was provided by the provincial government.

The Board's chief spokesperson (at that time) was Mr. Inman. He and Mr. Pratt, chief spokesperson for the N.R.P.A., agreed that Mr. Pratt and I would form a sub-committee to address the non-monetary proposals. The mandate was that the two of us would meet and attempt to reach some agreement as between ourselves, and then to bring that tentative agreement back to our respective principals for their review and final decision.

Mr. Pratt and I did meet for that purpose at the office of the N.R.P.A. One of the proposals tabled by the Association was a request to amend Article 24.15. At that time, the Article read as follows:

In the event that no applications are received from Full Time Staff, or if none of the applicants are properly qualified, then the board may consider applications from Temporary or Part-Time employees or non-force personnel.

The change proposed by the Association was subsequently agreed to and incorporated into the

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collective agreement.

At the time of commencement of my employment with the Service, Article 24.15 was in place and, to my knowledge, had been for some time. The practice which had been adopted with respect to the administration of that language was that, in the event of a job posting, full time applicants would be considered in the first instance. If there were no full-time applicants, or if there were no qualified full-time applicants, Human Resources would then look to applicants from the temporary pool. In the event that there were no temporary applicants, or there were no qualified temporary applicants, then the Service would advertise externally.

In speaking with Mr. Pratt about the proposed change to Article 24-15, I specifically inquired as to the purpose of the association's request, given that, to my knowledge, the language had been in place for a very long period of time and had been administered consistently throughout. He indicated, as I recall, that Human Resources had recently adopted a practice whereby, in the event that only temporary employees applied for a position, external personnel would be called in to be interviewed at the same time. I indicated to Mr. Pratt that this process was directed only at allowing Human Resources the opportunity to review external applicants for possible future placement on the temporary list, and was not intended to usurp the established language or practice. Given the Association's concerns, however, I agreed to recommend the proposed change to my principals.

I subsequently did recommend agreement to the change, when I met with my full bargaining committee. I saw the language as nothing more than

"housekeepingu and explained it to my Committee in that context.

Both bargaining Committees subsequently formally agreed to the change and it was incorporated into the collective agreement.

In drafting this statement, Mr. Pratt had asked how the "newu Article 24.15 'would be administered by Human Resources .in circumstances such as those presented before this tribunal (as I understand it). consistent with past practice, and given that there was no intent to change such practice as a

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result of the 1993 language change, Mr. Craig, as the only "internalt1 applicant for the position, would be offered the position (so long as he met the qualifications) . If Mr. Craig was not qualified, the Service would look to external applicants.

Finally, to the best of my recollection, employment equity issues were not discussed at the time this language was changed in 1993. At that time, my understanding was that employers were required to exercise their best efforts to change the face of the workplace, to better reflect the composition of the community served. Despite the fact that I had participated in the employment equity exercise since 1991, initially as a participant at focus group discussions prior to the drafting of the regulation, and throughout as the Service's employment equity co-ordinator, I had never received and indication or direction from Ministry representatives regarding the issue of the relationship between the employment equity regulation and employment equity plans, and collective agreements.

To my knowledge, no comment with respect to this issue was ever made by the Ministry to Service staff, and certainly not to myself, until late Spring of 1994 when Service, Board and N.R.P.A.

representatives met with senior Ministry personnel in the Chief's boardroom. Given that the subject matter being heard at this hearing had developed into a problem at that time, several participants at that meeting sought specific clarification from Ministry staff with respect to a resolution of this problem. Other than acknowledging that the collective agreement language did appear to give rise to a "barrier", no specific direction was provided with respect to a short or long term resolution of the problem. From my perspective, as a result, I would certainly be most appreciative of receiving a determination as to how to proceed with this issue, and in the future.

The Agreed Statement of Facts made reference to Article 24.15 of the Collective Agreement applicable to the events in question, which Article reads as follows:

24.15 (a) In the event that no applications are received from Full Time staff , or staff enqaqed in Job Sharinq, or if none of the applicants are properly

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qualified, then the board may consider additional applications in the followins order: Temporarv or Part Time Employees, then non-Service personnel.

(b) Qualified Temporary employees who are actively working on assignment with the Service at the time a full time position is posted may make application for that position, even if such temporary employee is no longer on assignment at the time interviews for that posting are conducted.

[The underlining is added to highlight the amendments to Article 24.15 (a) from the previous yearr s collective agreement, as set out in paragraph 13 of the parties' Agreed Statement of Facts]

The narrow issue to be resolved is whether the Employment Equity Act overrides or renders null and void provisions of Article 24.15 of the Collective Agreement, a provision which has been consistently upheld and applied by the parties for many years. It should be noted that the Association took the position throughout that the Association and its members were clearly committed to the goals underlying the Employment Equity Act. fact, the Association had been actively involved in designing the Employment Equity Plan for the workplace and recognized the importance of designing a level playing field for applicants of targeted groups.

However, the Associaiotn took issue with the Employer's position in the instant case submitting that there is nothing in the Act or the guidelines suggesting that the provisions of a Collective Agreement ought to be overridden if in conflict with provisions of the Act.

In addition to the Agreed Statement of Facts, evidence was heard from two witnesses on behalf of the Association; Michael DIAmico, Acting Research ~ n a i ~ s t and Lynn Davidson, Employment Equity Manager in the Race Relations and Policing Unit of the

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Solicitor General's office. The evidence disclosed that various reports had been prepared by the Solicitor General to set out the results that had been achieved based on the employment equity goals that been established at the workplace. The goals were established in an effort to have the workplace reflect the face of the community with respect to four groups, visible minorities, aboriginal peoples, those with disabilities, and women. The reports were prepared pursuant to the provisions of the ~egulations made under the Police Service Act, 1990 (See Section 8(i)).

The pertinent Regulations made under the Police Services Act, 1990, read as follows:

( 6 ) For the purpose of his Regulation, an employee's

appointment type is one of the following:

1. Permanent full-time, if the employee is employed on a permanent, regular basis for thirty-five hours or more every week, or seventy hours or more every two weeks.

2. Permanent part-time, if the employee is employed on a permanent, regular basis for less than seventy hours every two weeks.

3. Contract, if the employee is employed on non-permanent basis for twenty-six weeks or more.

Barrier Elimination

8.- (1) The employment equity plan of every police force shall establish goals and timetables for taking the measures referred to in subsection ( 3 ) to eliminate systemic barriers to the recruitment, selection, promotion and retention of persons who are members of the prescribed groups.

(2) The goals and timetables shall be established,

(a) for the period from

. . .

the 1st day of January, 1993 to the 31st day of December, 1993, in the case of an employment equity plan required under

subsection 12(1) to be submitted to the Solicitor General before the 1st day of May, 1992; and

(b) in any other case, for each year of the plan

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period.

( 3 ) The measures referred to in subsection (1) are:

. . .

1. Implementing barrier-free recruitment policies and practices.

2. Implementing barrier-free interview and selection policies and practices.

4. Implementing barrier-free promotion policies and practices.

Consultation

11. The employment equity plan of every police force shall set out a description of consultations with police associations, unions, community groups and other interested persons that took place with respect to the development of the plan.

The Ontario Police Services Act,c. P.15 R.S.O. 1990 provides that

48. (1) Every police force shall have an employment equity plan prepared in accordance with this section and the regulations.

(2) An employment equity plan shall provide for, (a) the elimination of systemic barriers to the recruitment and promotion of persons who are members of prescribed groups;

(b) the implementation of positive measures with respect to the recruitment and promotion of those persons, so as to make the police force more representative of the community or communities it serves;

and

(c) specific goals and timetables with respect to the elimination of systemic barriers, the implementation of positive measures and the composition of the police force

.

The Ministry of the Solicitor General also released, on a periodic basis various Barrier Elimination Guidelines, among which the following provisions are of assistance in this case:

Barrier elimination gbals are measures taken to help eliminate systemic barriers to the recruitment, selection, promotion and retention of prescribed group members (racial minorities, aboriginal peoples, women and

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persons with disabilities).

Systemic barriers in employment are discriminatory policies and practices which are "built inu to employment systems and working environments. They have existed for a long time and while we have never thought of them as discriminatory, they may have an adverse impact on prescribed group members.

All promotion policies and procedures should be developed and approved prior to beginning the selection process.

The "rulesu should not be changed part way through.

All promotion tools and criteria should be analyzed against the same criteria used to analyze the selection process.

. . .

Police services will have to determine if the processes and timing of the development of these processes are consistent with the Regulation, s.8.

The evidence adduced at this hearing indicated that the thrust of the Employment Equity Act was to create a plan at the workplace which had hiring goals for the four disadvantaged groups.

However, the hiring goals were to be seen as quotas. The problem in the instant case arose because full-time employees for this type of position were generally hired from the pool of temporary employees, a pool which in this case was admittedly stagnant. In other words, the temporary employee pool had become a "feeder system" for the ultimate hiring of full-time employees. Thus trying to hire an outside applicant from one of the designated groups, pursuant to the provisions of the Employment Equitv Act, directly into a full-time position would constitute a road block for the temporary employee pool and override the provision of the Collective Agreement.

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In this particular case, there were four full-time maintenance employees, two mechanics and two radio repair technicians. The goal which the Employer created for purposes of the Em~lovment Equity Act with respect to the maintenance area was to hire one member from one of the designated groups. Accordingly, the Employer by-passed the Grievor and tried to hire a qualified woman. As was pointed out by both witnesses, the achievement of the goals under the Em~lovment Esuitv Act is mandatory and therefore goes beyond merely requiring reasonable effort to ensure compliance. The Employer argued that the provisions of the Employment Equity Act were mandatory and therefore took precedence over the provisions of the Collective Agreement.

Moreover, the Employer argued that a job opportunity was not being taken away from the Grievor, but rather that he would now have to compete with members of the targeted groups.

After a careful review of the facts, the exhibits, and the provisions of the Employment Equity Act and upon careful consideration of the submissions of counsel, I find that neither the specific provisions of the Collective Agreement cited to me in this case, nor the creation of a temporary pool of labour is, per se, a barrier to the hiring of one of the designated groups.

Moreover, I also find that the provision of the Collective Agreement, as interpreted by the parties over the years, is clear and unequivocal. ~lthough the wording of the Emplovment Ecruitv Act uses the word ushallu throughout most of the Act, it is also clear

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that there are no mandatory quotas that must be achieved. Finally, the Act does not specify that it must be applied retroactively, and therefore, using the accepted standards of statutory interpretation, its provisions are to be applied prospectively.

This principle of statutory interpretation is reflected in the Ministry's March, 1992 barrier elimination guidelines which specify that "rulesI1 should not be changed part way through. " .

Consequently, if the parties wish to fulfil the purposes of the Act and implement measures to eliminate barriers, they could develop a proceedure to change the composition of the temporary employee pool in order to conform with the provisions of the Act.

In the context of this case, and on the facts as presented to me, the job in question should have been awarded to the Grievor and I so declare. I remain seized of this matter for the purposes of dealing with any problems that may arise with respect to the implementation of this Award.

Dated at Toronto, Ontario, this 4;(1September, 1995.

Eva E. Marszewski, Sole Arbitrator

References

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