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HomeMy WebLinkAboutGroup 95-02-1794D254 OPSEU VS NORTHERN COLLEGE IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (hereinafter referred to as "the Union") - and - NORTHERN COLLEGE (hereinafter referred to as "the Employer") GROUP GRIEVANCE BEFORE: M.G. Mitchnick- Chairman J. McManus- Union Nominee P. Hetz- Employer Nominee FOR THE UNION: D. Eady- Counsel L. Francis- Union Steward FOR THE EMPLOYER: D. Gray- Counsel R. Bryan- Human Resources Offic er Hearing held in Timmins, on October 18, 1994 A W A R D This matter arises out of the requirements of the College to schedule 6 unpaid leave days for all of its staff in 1993-94 to meet the financial savings targets of the Social Contract Act. The Union did in fact challenge the need to impose those days off through the office of the Social Contract Adjudicator, Graeme McKechnie, but the College was upheld (see decision issued July 13, 1994). The only issue the Union raises here, therefore, is whether the College properly implemented that requirement in the case of the 6 Counsellors who work in its "Futures" Program: that is, whether the College really did grant these employees the requisite "time off", commensurate with their loss in pay. The grievance in fact reads: This is a grievance under Section 33(1) of Bill 48 -- The Social Contract Act. The grievors disagree with the College's application and administration of the program developed by the employer, and Article 11.04C of the Collective Agreement. SETTLEMENT DESIRED 1. That the unpaid leave days affixed to this complaint will be nullified. 2. That unpaid leave days, if any, be accompanied by an equivalent reduction in workload. 3. That the grievors be properly compensated. Article 11.04c provides: The appropriate legal principles applicable to this matter are not really difficult to identify. In Trent University, a decision of David Starkman issued Nay 16, 1994, the arbitrator explained the principle of "no pay, no work" contemplated by the Social Contract Act's unpaid leave provisions as follows, commencing at page 17: ... I agree that the thrust of the legislation is to allow an employer to require employees to take unpaid leaves of absence and that such leaves were to be arranged on an employee's regular work day. In this way, an employer would not be able to entirely continue business as usual, and would suffer some interruption in its programme or its production as a result of requiring employees to take unpaid leaves of absence. If an employer were permitted to schedule unpaid leave days on days that an employee was not otherwise scheduled to work, then an employer could schedule these days on weekends, statutory holidays, regularly scheduled vacations or plant shutdowns with the result that employees would receive less money on an annual basis, but would still be required to do the same amount of work. In my opinion, by giving an employer the power to force employees to take unpaid leaves of absence, it was not the intention of the legislature to allow employers to continue business as usual. Rather, it was contemplated that there would be some reduction in the amount of work being performed by employees commensurate with the number of unpaid leave days such employees were required to take. Thus while employees would receive less money, less work would be performed. This was the trade-off for allowing employers to meet expenditure reduction targets by imposing unpaid leave days on employees many of whom may have previously negotiated rates of pay set out in collective bargaining agreements. The more difficult question is whether, in any given case, the employer really has provided for " some reduction in the amount of work being performed by employees, commensurate with the [reduction in pay]", and that, here at least, is strictly a question of fact. The grievors are all Counsellors employed in the Province's "Futures" program being delivered at Northern College. That program is designed to provide difficult-to-employ youth aged 1624 with the skills necessary to acquire and maintain a job, as well as to assist in matching their technical skills to an employer on graduation. Each counsellor will service approximately 10 clients for an initial 6-12 week period, depending on the client's degree of readiness, after which the client moves on to a four-week session with a job-search counsellor. The program includes an actual job placement or field component as well, which is coordinated and monitored by employees who fall within the "support staff" bargaining unit of the College. With respect to the initial session referred to, the counsellors are present with their clients in a classroom setting at the Learning Centre from 9 to 4 on Mondays, Tuesdays and Thursdays, as well as on Wednesday afternoons. At those times the counsellors present various Workshops or other group sessions, or the clients may be working, individually or in a group, on pre-designed "skill modules". Individualized career counselling also takes place in the course of these times as well. On Wednesday mornings the full staff meet with their supervisors on case conferencing, while Fridays are essentially free for planning and preparation, telephone contacts, and a variety of other administrative tasks which counsellors in the normal course have to perform. There having been no agreement reached with the Union or individual counsellors on the scheduling of the Social Contract Act's unpaid leave days, the College designated a series of Fridays "off" for these counsellors, and it is upon their Friday duties that the case is therefore focused. Testifying on behalf of the grievors was the Union Steward Liliane Francis. Ms. Francis has been in the Northern College "Futures" program for eight years, and since 1992 as a counsellor. Ms. Francis testified that the program demands very strict and detailed program plans and documentation, as set out in the Province's mandatory "Guidelines & Standards" under which the program is run. Those Guidelines with respect to the Preemployment portion (PEP) of the Program provide, for example: 2. Principles for Delivery _ FUTURES program options are participant driven and not limited to a "straight line" process. Training meets individual client needs rather than reflecting fixed, standardized programming. _ Program design remains flexible, practical and sensitive to individual participant, community and regional needs. _ PEP will include the following four elements: - Skills Inventory Profile - Personal Development Plan - Workshops/Activities - Tracking _ Flexible programming is based on individual assessment and the creation of individual Personal Development Plans and Skills Inventory Profiles. Client participation must form an integral part of all program options. 6. Participant Human Resources Attendance and payment of stipend: While participating in PEP, youth with full attendance receive a stipend of $125. per week. Records of attendance must be maintained and the stipend reduced if a participant is absent. ... II. PROGRAM ACTIVITIES ... 2. Skills Inventory Profile A Skills Inventory Profile is a compilation of information about a PEP participant which identifies the individual's skills and abilities at a particular point in time. A Skills Inventory Profile: - is initiated with the participant during the intake process to confirm appropriate referral. - is produced using concrete language in a format which is useful to the participant. - formally identifies the individual's current status in the areas of education/academic, life and Employment skills as well as occupational skills training. - contributes to clear, concise goals allowing both participant and counsellor to assess outcomes and quality. - is a living document which is reviewed bi-weekly with the participant to monitor progress and provide support. 3. Personal Development Plan The process of creating a Personal Development Plan assists participants in determining where they are and where they want to go, and shows how they will achieve their goals. A Personal Development Plan is: - begun on completion of an initial Skills Inventory Profile. - initiated collaboratively between the participant and the counsellor. - divided into three sections: - Life Skills to focu s on building self-esteem and address attitudes and motivation as well as practical living skills. - Vocational Skills to relate to work and the workplace. - Life-Long Learning Skills to provide an orientation to the training culture and a redirection to educational opportunities. - in a format that is meaningful and practical to the participant (diary, personal planner, journal, traveller's diary, record jacket, life-timer, etc.). - reviewed and updated by staff and participant on a regular basis. - a living document allowing for continual changes, additions and alternatives as the client progresses through PEP. Within this context, goal setting must be concrete and realistic. The participant must be able to follow through with these goals and to adapt to changing needs and circumstances. File documentation of the Personal Development Plan includes: - documentation of immediate goals, short-term goals (to be accomplished during PEP) and long-term goals. - goals identified on a regular basis by the participant and an assessment of progress made toward achieving these goals. 4. Workshops/Activities The PEP program will provide the following menu of group activities/workshops and information. Selection for individual delivery will be based on client needs as identified during the FUTURES intake process and supportive referral into PEP. The materials, activities and resources used in PEP are intended to implement steps in the Personal Development Plan and will respond to individually assessed participant needs in the areas of vocational skills, life skills, and life-long learning skills. - Vocational Skills Vocational skills provide an orientation to work and workplace training . Within this component, activities/workshops and information will be provided on the following topics: - workplace safety - employment standards - non-traditional occupations - apprenticeship - introduction to technology - introductory work experience* - career exploration - basic business skills - language of the workplace - labour market expectations/standards - computer literacy - workplace "survival" (e.g. keeping a job, dealing with harassment) ... 5. Tracking Materials Tracking Materials are those systems used to record significant information. This information may document the activities of an individual client or the activity of a program during a period of time. Tracking materials may be used by an employment counsellor involved in case management or by a program manager who is involved in strategic planning or program evaluation. Every program must have systems in place to meet the requirements of the Ministry for summary information. Most organizations collect additional information which may relate to the needs of their community or a particular approach to program management or evaluation. Some systems are very sophisticated and involve computerized data bases which can manipulate information easily. Others are simple and concrete and can be used without training or special equipment. Given the requirement above to document all activities of each of the clients in the program, the College has developed a "Daily Tracking Form" to record all such activities or meetings engaged in by the various clients Monday to Thursday, as well as any telephone calls or other recordable activities performed by the counsellor on their behalf. Ms. Francis testified that she normally fills this form out for the week on Fridays, splitting it into mornings and afternoons, so that there are eight documents in all to complete. The individual client Personal Development Plans also have to be updated regularly to show the progress, and this is another typical Friday task for Ms. Francis. As well, Ms. Francis testified, it is the responsibility of the counsellor to submit the week's Attendance Report by Monday, or the client won't get paid, and these Reports, she indicated, tend to get filled out by her on the Friday. The skill modules also have to be marked for completeness, and Ms. Francis normally does this on Friday, with a possible range of 40-80 work sheets coming to her each week. Friday planning time is also required for making any needed revisions to a Workshop Ms. Francis may be presenting in the next week, as well as for setting up an agenda, including one-to-one meetings, for that week. In addition, Fridays normally include a staff meeting of about an hour at the start of the day, as well as an opportunity to liaise or meet with outside agencies. Ms. Francis went on in her examination-in-chief to indicate that she was told, when advised of the six specific Fridays she would be scheduled off, that she was not to do any work on those days - and that if any of the staff did decide to come in, they would not be paid. Ms. Francis testified that she did not come in, but rather used the time for her own personal affairs. However, it was her view that the work had to get done, because documentation in the file must be complete, including the Daily Tracking Form and the Personal Development Plan, and that the Attendance Report has to be in by Monday morning. Accordingly, she testified, she performed all of this work on her own time, be it evenings or week-ends. Asked, with respect to this normal Friday work, whether she had any understanding of what management expected, Ms. Francis indicated: "None whatsoever", adding that management said nothing to her about not having to do any of the types of work that she normally would do on Fridays. Once again Ms. Francis noted that in her view the work had to be done because the completion of the Daily Activity Form and the Personal Development Plan is required by the Ministry and without that the individual cannot move on into Job Search. Ms. Francis' immediate supervisor is the Co-ordinator (a member of management), Johanne Recoskie, and above her is the Director Debra Petrus. On cross-examination Ms. Francis was questioned in some detail about the discussions with the College leading up to management's designation of the Fridays as the 6 days off. Ms. Francis indicated that, while she was aware that there were higher-level meetings taking place between the College and the Union on this whole issue, she was not aware that the Union had taken the position that it would not agree to the scheduling of any days off. Ms. Francis later clarified this to say that she was not aware of that being the Union's position across the College. Ms. Francis did, however, acknowledge that she had stated to Ms. Recoskie at a meeting where the staff were being asked to indicate their preferred days off that, "None of us are going to agree on the scheduling of the days". Once again Ms. Francis acknowledged that it was stated by management that "no work was to be done, and there'd be no make-up". Ms. Francis went on to say, however, that it was made clear at the same time that the Program was not to be affected. That meant, Ms. Francis testified, that if one of the 'client' days were scheduled off for her, she would have to prepare the day and a fellow counsellor would have to take two groups. Ms. Francis did not recall the specifics of a conversation that took place in the staff-room about a week later, when another of the counsellors asked how she could go about scheduling the unpaid day, but Ms. Francis did acknowledge that she might at that time have said "that she'd been directed to inform the members not to co-operate with management on this." Ms. Francis acknowledged that she herself ultimately asked management to move one of her off days to a different Friday, because she had a P.D. Day in Ottawa scheduled for the initial day. She agreed as well that she specifically requested that the replacement date also be a Friday, in order, once again, to avoid one of her colleagues having to take her group for her. She also acknowledged that she did from time to time request other days off in order to attend other functions, and that management has normally permitted that without loss of pay. Ms. Francis also conceded that upon being given the "good news" by Ms. Recoskie in 1994 that it had been determined that no unpaid leave days would be required for the next school year, she "may" have replied that, while that was a good thing, she had enjoyed the time off they'd provided. Ms. Francis' supervisor, Ms. Recoskie, was the witness called by the College to give the management perspective in this matter, and commented on the 'Friday duties' as testified to by Ms. Francis. Ms. Recoskie testified that the Skill Modules had been developed by a consortium of northern colleges to make the one-on-one work in the program much easier, and that the counsellors, by the time in question, were entirely familiar with them and could just pull them off the shelf. Ms. Recoskie acknowledged that it was the practice of Ms. Francis to review those on Fridays, but that other counsellors did not, and that at a meeting expressly raising this, she had spoken to the counsellors about the benefit of making time to go over the Module with the client at the time, while the client's work on the Module was still fresh. Ms. Recoskie added that the absenteeism rate is quite high, given the client group, and that there would be few weeks when the number of modules to be looked at would reach a maximum of 40. Similarly, Ms. Recoskie noted, the Personal Development Plans are always prepared in duplicate so that the client can follow along, and the method of updating she again recommends to the staff is with the client, either weekly or bi-weekly. The first half-hour of the work-day, Ms. Recoskie went on, is the counsellor's for use for telephone contacts or whatever, prior to the arrival of the clients at 9:00, and similarly the last half-hour of the day can be used to complete the Attendance Log, and possibly a good part of the Daily Activity Forms as well. Ms. Recoskie adds that there are also opportunities for doing that during the contact sessions, because the clients are often busy working on their modules individually. All of this, Ms. Recoskie testified, is what she constantly stresses with the staff as part of good time- management. However, Ms. Recoskie at the same time acknowledged that it can get "pretty hectic" during the week, and that Friday is often a time for "catch-up". And further on that point, Ms. Recoskie agrees that the prior practice of having the clients in on all five of the days was changed to the present system, as a consequence in part of the pressures adverted to by the staff, as well as of the extremely high absentee rate on Fridays in any event. With respect to the matter of scheduling the unpaid leave days, Ms. Recoskie testified that the Support-Staff group did come forward and ask to have input into their scheduling, and it was carried out in that manner accordingly. With respect to the counsellors, Ms. Recoskie testified that while the scheduling of Fridays off was seen as the least disruptive to the clients, management had discussed the matter and was prepared to talk to the staff about an arrangement whereby each counsellor could have three Fridays off and three Mondays. However, matters never got that far, because with that group (being part of the Academic unit), Ms. Recoskie testified that there was no preparedness to discuss the matter at all. In fact, as noted above, when one of the counsellors did approach Ms. Recoskie in the staff-room about expressing her preferences, Ms. Francis interceded to stop her, advising the group that she had been instructed that the counsellors weren't supposed to negotiate any days off with the College, but rather were to await their assigned days and then grieve, and hopefully get both the days off and the money, if they were right (and the grievance was in fact filed in advance of the days off). For her part, Ms. Recoskie testified that she made it clear to the staff that there was to be no work on those days, and no make-up work, and that she put a lot of thought into how she scheduled the days with that in mind. Ms. Recoskie testified that new "Intake" assignments are normally done by a counsellor on the Fridays, so that if one of them were scheduled off on the Friday, she would not start any new clients the following Monday - which meant the counsellor would end up having a smaller group to work with for that week. She also never scheduled any counsellor off on two successive Fridays. Beyond that, Ms. Recoskie testified that the counsellors were aware of the days they were scheduled off well ahead of time, from an advance-planning point of view, and that she also moved the Friday staff meeting to the Wednesday morning, to allow more time to the staff on the Fridays they were in. Ms. Recoskie testified that the Daily Tracking Forms are supposed to be filled out daily, as is the Attendance Log, and that for the Friday, the Activity Sheet would simply have to be left blank - as it was for days a counsellor was absent even before the Social Contract. Most of the Friday functions she felt could be made up during the week, and things like photocopying, for example, she noticed now being done in the half-hour period from 8:30 to 9:00 a.m. Monday to Thursdays. The one exception was perhaps with respect to the Friday "networking" with other agencies, which now simply would not get done. Overall, Ms. Recoskie testified, while she was committed to dealing with whatever problems for the staff the reduction in Friday work-time created, the only complaint that was ever really brought to her was around the module-marking, as referred to earlier, and that at that meeting she explained why she considered it preferable to try to schedule one's time in such a way that the modules could be gone over in the presence of the clients themselves. She added that the discussion at the meeting disclosed that some of the counsellors were doing it that way already, and that others changed to that practice subsequent to the meeting. The argument of the Union in this matter boils down essentially to this: management did have the right to schedule unpaid days off, but with that reduction in pay it was incumbent on them to ensure that the staff could enjoy a diminution in work. Here, critically, there was no diminution in the client load, and so the designation of Fridays as days "off" was a false reduction in workload: having that same number of clients to deal with during the other days of the week means the same amount of attendant work has to get done, and management failed to specify any such work that didn't have to be done. The net result of that, the Union argues on behalf of the grievors, is that employees had no choice but to make up the work on their own time - work for which they did not get paid. The thrust of the Union's argument, one can see from the submissions, is essentially to equate the situation of the counsellors with that of the College's "teaching" staff. In the Trent University case, for example, a part-time instructor apparently was scheduled for his "Social Contract" days on nonteaching days, and that was held to be a violation of the requirements for unpaid "leave". More to the point, in another case involving these parties, Northern College, a workloaddispute-resolution decision by James Morrison, dated September 28, 1994, the arbitrator noted, at page 7: In all cases where unpaid leave has been assigned during teaching periods, the College has chosen days of half-days on which individual professors were not scheduled to teach. As noted earlier, management instructed the complainants not to undertake any work related duties on the days in question. As the arbitrator correctly pointed out, however, teachers for each "contact" hour have certain attributed hours credited to them by formula negotiated under the collective agreement for preparation, evaluation and the like. Thus, as the arbitrator concluded, commencing at page 9: Articles 11.01 D 1 and 11.01 E 1 set out mathematical ratios of assigned teaching contact hours to attributed hours for preparation, evaluation and feedback to students. These ratios are a product of the collective bargaining process and represent a mean. In some cases, professors will spend more time on preparation, evaluation and feedback than is allotted to them by the formula, in other cases less. In all cases, if a teaching contact hour is assigned by the College, then professors have to prepare for it, and they have to perform evaluation and feedback to students. For the College simply to direct professors not to perform such activities, yet still assign them teaching contact hours, would be to unilaterally revise downward the formulas stipulated in 11.01D 1 and 11.01E 1. The net effect, in most if not all instances, would be an increase in workload ... That analysis, for "teachers", is undoubtedly correct. For counsellors, however, there is no such concept as an "attributed" workload: counsellors got paid for the actual work that they do. Thus a direction to that group, "not to make up work", cannot be said to be meaningless in the same fashion at all. The question is whether management in fact ought fairly to have been taken by employees to have been sincere in that direction, and perhaps more importantly, whether options truly did exist for employees to allow them to comply with that direction in reality. As arbitrator Starkman noted, if one assumes that management has the level of staffing in place that is normally appropriate to its "business" requirements, and the Social Contract Act mandates a cut-back in paid staffing days, as a necessary method of "saving money", it has to be recognized by the employer that that reduced funding and staffing is going to result in reduced service to the clients or public. That is, less paid hours are going to result in less work, and less work is going to result in less service. But we do not on the evidence before us here conclude other than that the management of the program did recognize and accept that, and that they were prepared, and made it clear that they were prepared, in the end to take the responsibility for that. It is true that, given the lack of staff input or participation, management made the unilateral decision to schedule only Fridays off, as a way of minimizing the impact on the clients. Clearly it was in that sense, that there would be no days on which service at the Centre would actually be interrupted, that management said that "the program was not going to be affected", as Ms. Francis understood. But management also made a number of scheduling decisions, as well as suggestions, with a view to accommodating or at least minimizing the impact of the reduced work-time for the staff as well. And implicit in those scheduling decisions and the suggestions was a recognition that some of the ways in which service had previously been provided would have to be reduced or consolidated, and some things, like agency liaising, would not get done at all. We also note that when staff did have to make an election, in situations where a day off had to be moved to avoid a scheduling conflict, their day of choice as the fairest one to all was the Friday as well. Obviously the concern and conscientiousness of the individual staff members like Ms. Francis is unreservedly commendable; but a decision had been made outside the control of either the staff or the management of the Program that service had to be cut back. And management appears to have made it as clear as they could that there was expected to be a reduction in work and service to the clients, to the extent other measures could not compensate for the loss in work-time, and that management was ultimately prepared to be answerable for that if necessary. And perhaps more importantly, the evidence indicates that, if specific problems or concerns did still exist, management was wholly disposed to discuss and deal with them -and to the extent they were raised, appears to have done so. Given the decision on the Union side, in light of its fundamental difficulty with the whole process, not to engage in any dialogue on it at all, it is difficult to see what more of the Program management ought to have been expected. Rather, as set out in the similar Workload Dispute Resolution matter before arbitrator Kathleen O'Neil (decision issued June 13th, 1994), quoting the College, the employees were "entitled to take the College at its word and perform no work for the College [as directed]". We find that the grievors were in a position to do that here as well, and that any additional or "make-up" work some may have decided to perform was not work "required" by management or the job itself, and was work for which they were expressly cautioned they would not be paid. On the specific facts before the board in this case, therefore, the complaint of failure to provide an unpaid day without additional work must be denied. Dated at Toronto this 17th day of February, 1995 M. G. Mitchnick I dissent"J. McManus" (Attached) J. McManus I concur"P. Hetz" (See Addendum) P. Hetz -20- ADDENDUM OF P. HETZ I have reviewed the award and agree with the fin ding. However, I think that the matter can be dealt with in a more simple manner by reference to Regulation 590/93, Section 5 of which states: In Part VII of the Act, "unpaid leave" and "unpaid leave of absence" mean a leave of absence without pay that is, (a) the whole of an employee's regular work day, or (b) half of an employee's regular work day, if the half day of leave begins at the beginning of the employee's regular work day or ends at the end of the employee's regular work day. O Reg. 590/93, s.5. In my respectful view, once it is demonstrated that an unpaid leave day was scheduled on a regular work day as contemplated in the Regulations, that is all that is required. Since the unpaid leave days were clearly scheduled on regular work days in this case, no further inquiry is necessary and the grievance should be dismissed simply on that basis. DISSENT I dissent. In my view, the central point behind the Social Contract Act leaves of absence is "no pay, no work". The futures counsellors job is very similar to that of a College professor. They essentially teach young people marketable job skills. They do so in a classroom like setting and by working one on one with the students. During the entire period, the counsellors had the same number of students and had to do the same amount of work. The only thing that changed was that they received six days less pay for that same amount of work. In fact, there was evidence led at the hearing that Management specifically stated that the students were not to be affected in any way by the workings of the Social Contract. While teaching contact hours and attributed hours for preparation, evaluation and feedback, and complementary functions are not outlined with mathematical precision like with respect to College professors, there is no doubt that counsellors are required to so the same types of non- teaching duties. The evidence indicates that they mark, prepare, evaluate and give feedback. Most of these tasks are done when they are not in class. The work schedule indicates that these are done on Fridays. The "non-teaching" duties of the counsellors includes filling out Daily tracking forms, pay sheets, marking of instructional modules, and other "paperwork" which is required to be filled out by the College and by the Provincial Government. These duties were normally done the by the counsellors on fridays because the rest of the week was taken up with their teaching duties. Furthermore, it was clear on the evidence that counsellors used the Fridays to prepare their material for the following week. In my view all of these duties were required to be done and the evidence given by the witnesses for the College that they didn't expect the counsellors to do this word or prepare their materials because of the Social contract is simply not believable. To suggest that one of the counsellors could have not handed in the pay sheets because he or she was on a Social Contract leave on a given Friday which may have resulted in the clients not getting their "pay" is simply not realistic. Nobody that cared about the job and the clients would have done such a thing and for management to say that this would have been satisfactory is just not believable. Thus in my view management simply expected that the counsellors would do the same amount of work or their own time but receive less pay. This is in clear violation of the Social Contract Act and the concept of "no pay, no work." At the very least, the College should have issued very specific directions to the counsellors on what work was NOT to be done. The college should no expect the grievors to make up the necessary work or face potential discipline for not completing certain critical functions. The majority points out that his was "implicitly done by management". In my view the College should have been required to do so explicitly. They clearly did not. Therefore, I would have allowed the grievances and awarded the appropriate compensation. John McManus