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HomeMy WebLinkAboutUnion 94-12-01IN THE MATTER OF AN ARBITRATION B E T W E E N: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF GEORGE BROWN COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") UNION POLICY GRIEVANCE OPSEU FILE NO. 94B617 BOARD OF ARBITRATION: Richard H. McLaren, C. Arb. Sherril Murray, Union Nominee Bob Gallivan, College Nominee COUNSEL FOR THE COLLEGE: D.K. Gray COUNSEL FOR THE UNION: D. Wright A HEARING IN RELATION TO THIS MATTER WAS HELD AT TORONTO, ONTARIO, ON NOVEMBER 30, 1994. AWARD The facts giving rise to the grievance in this matter are not in dispute. The College is one of a number of employers represented by the Ontario Council of Regents for the Colleges of Applied Arts and Technology, who is the Party who entered into a Collective Agreement with the Union. The Collective Agreement was to be effective from September 1, 1991 until August 31,1994 (Exhibit 2). On July 8, 1993 an act, the short title of which is the Social Contract Act, 1993 ("the Act") came into force. At issue in these proceedings is the interplay between this legislation and the parties collective bargaining agreement. By the social contract legislation the Government of the Province of Ontario established certain target dollar reductions, which various public and quasi-public sector employers had to achieve in order to flatten the public expenditure curve. In order to achieve the purposes of the legislation, the quasi public service was divided into a number of sectors, one of which includes the Community Colleges. The Act sets out a number of ways in which the purposes of the legislation could be achieved. Part IV of the legislation provided for the development of a sectorial framework which for this particular sector was never achieved. Part V permitted the parties to achieve the purposes of the legislation by negotiating and agreeing to a local agreement; or, alternatively by a plan under Section 16 of the Act, which is not applicable in this case. If none of the foregoing methods of achieving the purposes of the Act could be used then Part Vll, the fail-safe provisions applied. The employer is in the fail-safe provisions by virtue of Section 23(1)(a) of the Act. In Part VII section 24 of the Act operates to deny any increases in compensation to an employee who earns $30,000.00 or more annually, not including overtime pay, from the period beginning June 14, 1993 and ending on March 31, 1996. The rate of pay which the employee is to receive is prescribed in Section 24(1) to be that which was in effect immediately before June 14, 1993. Exhibit 4 which is the Minutes of the College Work Load Monitoring Committee (hereafter the "College WLMC") meeting held on December 9, 1993, reflect that the Union had taken the position that if the Government of Ontario required a reduction in salary of 4.8 % then the workload of academic employees at the College ought to be reduced by an equivalent percentage. It is this broad proposition which gives rise to the dispute between the parties. In order to understand the precise nature of that dispute it is necessary to examine the methods by which the Act provides for achieving the expenditure target reductions required for this sector. When an employer is unable to meet its reduction target by merely freezing compensation as discussed above then Section 25 of the Act provides that an employer may require employees to take unpaid leaves of absence to a maximum of twelve days or their equivalent in each of three periods commencing June 14, 1993 and ending on the 31st day of March in each of the next three years, concluding on March 31, 1996. The Act goes on to provide for special leaves in Section 26 which has no application to the present grievance. Section 27(1) provides that if the fixing of compensation under Section 24 does not result in achieving the expenditure reduction target then under clause (a) the use of leaves of absence under Section 25 or special leaves under Section 26 are to be implemented, failing which other actions available to an employer by law are to be taken. Section 27(1)(b) requires that the employer develop a program setting out the manner in which leaves are to be implemented. The sector fail-safe program developed by the Council of Regents was filed as Exhibit 6. By its provisions in paragraph 4.1 it required that six unpaid leave days be taken in the first period in which the Act applies, which ended March 31, 1994. Paragraph 5 of the program provides for the scheduling of the unpaid leaves by mutual consent, but failing which the College management has the right to assign the unpaid leave days. What the College has proposed in this case is to assign those leave days to non- teaching days for its academic teaching employees. Therefore, the scheduling of the leave days is something which flows directly from the program in paragraph 5. An objection may be taken to the fail-safe program by Section 29(3) and was done in this case. Under Section 30 the adjudicator reviewed the program and recommended modifications which have no application to the present circumstances after which the program was approved as being in conformity with the legislation. There is no dispute between the parties that this program has been properly developed and complies with the requirements of Section 28 and 29 of the Act. At issue between the parties in this proceeding is the interpretation and application of Sections 31 and 33 of the Act and its interplay with the Collective Agreement.Section 31 and 33 of the Act read as follows: (1) Subject to the regulations, if any, the adjudicator may establish procedures for carrying out the review. (2) The adjudicator shall review the program and shall: (a) confirm the program if it meets the criteria set out in section 27; or (b) amend the program so that, in the opinion of the adjudicator, it is consistent with the criteria set out in section (3) The adjudicator may make the decision based on the written submissions of the employer, bargaining agent, if any, and employees and is not required to hold a hearing. (4) The adjudicator shall make only one decision on the program irrespective of the number of requests made for a review. (5) The decision of the adjudicator is final. An employee to whom a collective agreement applies may use the grievance or arbitration procedures under the collective agreement to decide any difference between the employee and his or her employer arising out of the interpretation, application, adminstration or allege contravention of a program developed by the employer under this Part. In a grievance or arbitration under subsection (1), the arbitrator or board of arbitration shall not make any decision that an adjudicator is entitled to make under subsection 31. Section 5 of the Regulations to the Act provides that an unpaid leave day is to be either the whole of an employee's regular work day, or half of such a day. Exhibit 4, which is the minutes of the College WLMC meeting on December 9, 1993 reveal that there was general dissatisfaction amongst the faculty with the leave of absence days and the way in which they were being reflected on the Standard Work Load form (hereafter referred to as a "S.W.F.'s"). The Union, therefore, brought the matter to the College WLMC. The College had the previous day provided a memo from its co-chair indicating that it was their position that the College WLMC was not the proper forum for the discussion of social contract issues (Exhibit 3). This background frames the issue from which the grievance was filed which alleges: "Statement of Grievance Management violated Articles 4 & 6 of the Collective Agreement by their failure to enforce Article 11. Settlement Desired Article 11 to be recognized as the proper forum for any/all workload issues." The difference between the parties is whether these matters may flow through the dispute resolution procedure provided by Article 11 of the Collective Agreement, or, must go through the procedure provided by Article 32. It is this latter procedure under which this proceeding is being conducted. The Collective Agreement contains three dispute resolution processes. There is the workload process provided for by Article 11, the details of which will be returned to. There is the employment stability reserve fund dispute procedure found in Article 28 and there is the procedure in Article 32. A copy of all of these provisions is attached as an Appendix to this Award together with other related relevant provisions of the Collective Agreement. The issue which arises between the parties is the interpretation, application and interface between the Act in Section 33(1) and the dispute resolution procedures of the Collective Agreement in Articles 11 and 32. It is the position of Counsel for the Union that the proper forum for the arbitration of grievances involving workload is through Article 11 of the Collective Agreement and that in the absence of a provision in the Social Contract Act amending the Collective Agreement, that procedure must be applied to the disputes being raised by faculty. The Union provided three Workload Resolution Arbitrator ("W.R.A.") decisions which touched on the issues before this Board. They were a decision of W.R.A. Morrisson dated September 28, 1994 involving the Union and Northern College, a decision of W.R.A. Guptill dated June 9, 1994 between the Union and Humber College, and finally a decision of W.R.A. Lord following a hearing on May 6, 1994. It was the submission of Counsel for the College that the issue is not one of the amendment of the Collective Agreement by the Act, but rather the interpretation of Section 33(1) of the Act to determine which procedure Is the one referred to. It is the subrnission of the College that the procedure referred to is, and can only be, Article 32 of the Collective Agreement. In support of its position reference was made to the discussion of the nature of the arbitral process found in Canadian Labour Arbitration, by Brown & Beatty at paragraph 1 :2000 at page 1-9 and subsequent. The matter was very thoroughly and comprehensively argued by both Counsel. It is extremely difficult to summarize the very well presented and argued technicalities of the approach of both Counsel. The Board has elected not, in contradistinction to its usual practice, to set out even in overview summary form the arguments of the parties. The Board has been guided by the parties arguments in arriving at this interpretation of the Act and its interrelationship with the Collective Agreement. It would like to thank both Counsel for a very thorough and well argued presentation on each of their client's behalves. Both parties seek a declaration by this Board as to the interplay between Section 33 of the Act and the Collective Agreement. The difference between them is in the contents of the declaration as to which is the dispute resolution procedure contemplated by Section 33. The Union asserts it has to be Article 11 because the Collective Agreement is not amended. The College asserts it is Article 32 because it is the only complete and comprehensive provision contemplated by Section 33 of the Act. The differing impacts of these arguments are central in Section 33 of the Act. The Board turns first to a interpretation of that section. The Chair person of this Board of Arbitration had a prior occasion on which to consider the meaning and effect of that section. In a decision dated October 19, 1994 at page 5 of the Sault Ste. Marie Public District Roman Catholic Separate School Board and Canadian Union of Public Employees and its Local 3152 (PLANT GROUP) as stated: Section 33(1) is an enabling section which permits an employee who has a dispute arising out of "the interpretation, application, administration or alleged contravention of a program developed by the employer" under the Act to use the grievance and arbitration procedures of a collective agreement. Programs referred to in this section include ones such as the one imposed by this Employer, which require that the employees take a temporary lay-off of one-half hour each week. Section 33(1) does not preclude an employee from using a collective agreement grievance procedure, but rather permits and enables an employee to deal with an employer's plan by utilization of this grievance procedure. In other words, it is a new type of grievance process not contemplated by a collective agreement but made inchoate by the Act which could be applied to a dispute dealing with a program established by an employer. Section 33(1) grafts into the existing Collective Agreement dispute resolution procedure between the parties a new form of grievance whose origins are wholly within the Act as opposed to being within the Collective Agreement. Therefore there are two streams of grievances those which arise under the Collective Agreement and those which arise through the Act under s. 33(1). " The employer's fail-safe program requires unpaid leaves of absence to be taken in the first year of the Act's application. The dispute between the parties involves the taking of the unpaid leave of absence in the way in which the College has scheduled them which is in the non-teaching contact periods of the academic working year referred to in Article 11.01 B 1 as that part of the year reserved for "complementary functions and professional development". It is the application of the program to this particular portion of the academic year which gives rise to the dispute between the parties. As was indicated earlier by the broad general statement quoted from Exhibit 4, the Union believes that a reduction in salary by way of leave of absence of 4.6 % ought to be reflected in a reduction of an equivalent percentage of teaching time which would translate on the S.W.F.'s into contact hours. The Union submits that the parties have crafted for themselves a very sophisticated and highly specialized procedure in Article 11 to deal with workload issues and that is the forum in which such matters ought to be resolved through the College WLMC committee, which the Collective Agreement in Article 11.02 B 1 provides that each College is to have. Then if it is not resolved through that process the next step would be to move to the workload resolution arbitrator "WRA". The individual teacher has the right in Article 11.02 E 1 to refer the matter from the College WLMC to the WRA. That dispute resolution process is wholly governed by mutual agreement at the local College level as to who those WRA individuals are and the procedures which they will follow are only broadly outlined in subsequent provisions in Article 11.02. The Board of Arbitration finds that Section 33(1) of the Act establishes in essence a new grievance right by way of the Act. This was the conclusion which the present Chairman found to be the case in the previous decision quoted above in the Sault Ste. Marie Board of Education. At issue in the Sault Ste. Marie case was whether the dispute was within the jurisdiction of the Arbitration Board under Section 33 or within that of the adjudicator as provided for in subsection 2 of 33 which refers one back to the adjudicators review powers in Section 31(2) of the Act. Having noted this it was said by the present Chairman in that Award at page 7: this Board of Arbitration might hear a grievance under s. 33(1) and interpret me Employer's program; examine how it has been applied or administered; or, review the Employer's conduct with respect to what it has purported to do or not do, but the Board is not to impinge upon any jurisdiction which the adjudicator may have in the course of carrying out a review of the program. " This Board of Arbitration finds that there is nothing in section 33(1) which would restrict a grievance relating to matters under the Act to being processed through a single grievance and arbitration procedure under the Collective Agreement. The Act is drafted so as to permit a number of different dispute resolution processes which the parties might have provided for in a collective bargaining agreement to be utilized. All that section 33 does is create a new right of grievance which is outside the confines of the Collective Agreement but is to utilize the dispute resolution processes of the Collective Agreement for its solution. In so utilizing those processes the legislation can contemplate a single resolution mechanism, as was the case in the Sault Ste. Marie Board of Education; or, there could be a multiple variety of resolution mechanisms within any collective agreement, as there is in the rather elaborate and sophisticated collective bargaining provisions which exist between the Council of Regents and the Union. The essence of the issue between the Union and the local College is the scheduling of the unpaid leave days in the non-teaching contact days of the academic working year. The fail-safe program provides that as far as possible, unpaid leave days will be scheduled with mutual consent, but in the absence of that the College has the right to assign the unpaid leave days. In that event the College would be exercising its management rights under the Collective Agreement and would be empowered by the Act as paragraph 5.3 of the fail-safe program provides for scheduling a shutdown for a work unit. Such an action would be founded under the Act and the program filed to comply with the Act and not within the four corners of the Collective Agreement. A11 of the foregoing illustrates that there is in essence a entirely independent complaint which can arise by virtue of the Act and the program. It is not a work load and its even distribution issue directed at maintaining a complement of faculty. It is forcing people not to work. It is the development of that particular dispute in the absence of its satisfactory resolution by consent which is at issue in this proceeding. Must this go through the work load procedures of the dispute resolution process of Article 11 or the process of Article 32. Counsel for the parties directed a great deal of technical, analytical argument with respect to how to make that determination between the interplay of the Act grievance process and the appropriate dispute resolution process under the Collective Agreement. Indeed what the Act does is add a whole range of disputes which could not be found within the four corners of the Collective Agreement, and extends a right of grievance to employees "arising out of the interpretation, application, administration or alleged contravention of the program developed by the employer". On occasions that complaint may be one which ought to proceed through the parties processes of dispute resolution as set out in Article 11. On other occasions it may be entirely appropriate for that dispute to proceed through the process in the party's Collective Agreement contemplated by Article 32. To which dispute resolution process ought this particular grievance to proceed. At issue between the parties is the challenge to the local College's action of assigning unpaid leave days to the non-teaching contact portion of the academic work year. That decision by the College to not permit work on certain days and the carrying out of it in action does manifest itself eventually on the S.W.F.'s which are designed to be dealt with through the Article 11 procedure. However, that begs the question that has to be answered. It is not the S.W.F. and individual faculty workload it is the administration and application of the program which provides for management to have the final scheduling right to be exercised in accordance with all of the provisions of the Collective Agreement; and, in particular with the management rights provisions thereof together with any restrictions on scheduling contained therein which is in dispute. That broad issue is much broader in scope than an individual faculty member's S.W.F. S.W.F.'s reflect individual employees workloads. That is not what is involved here. It is scheduling time off work in certain portions of the teaching year. The broad issue ought to be arbitrated in this instance through the process of Article 32 of the Collective Agreement. Having resolved the broader issue then the application of it to any particular workload of any particular faculty member may well give rise to another grievance which could be considered to have its origins not in Article 32 but under which the dispute resolution process ought to be that of Article 11 of the Collective Agreement. Section 33 of the Act would, on those different facts than those of this case, embrace a different dispute resolution process. The particular dispute at the broad Union policy level is not an appropriate one for which to go through the Article 11 process. that process is not intended to be set up to embrace broad issues such as the present one. Therefore, the Board finds and declares that Section 33 of the Act can contemplate more than a single grievance and arbitration procedure under the Collective Agreement where the it has multiple processes by which to resolve various types of disputes. In order to ascertain which process ought to be applied in any given instance, the facts must be examined to ascertain whether it is an individual workload based issue which may have to proceed, depending upon the facts, through the Section 11 process. However, as found and declared by this Award, the facts in this particular matter are at the broad policy level of managements' right of scheduling under the program, and that is not a matter dealing with individual faculty's workloads and the accompanying S.W.F.'s. Therefore, this dispute is declared to be one which ought to, and must, proceed through the process of arbitration which the parties have provided for under Article 32 of the Collective Agreement and is so declared by this Award. DATED AT LONDON, ONTARIO THIS DAY OF DECEMBER, 1994. Richard H. McLaren, C. Arb. I concur/dissent"signed" Bob Gallivan, College NomineeSherril Murray, Union Nominee