Loading...
HomeMy WebLinkAboutO'Neil 94-02-25K.G. O'Neil c/o OLRB 400 University Ave., 4th floor Toronto, Ontario M7A lV4 (416) 326-7501 Fax: (416) 326-7531 February 25, 1994 Ms. Zonya Johnstone Director, Human Resources and Professor Doug Brandy President, OPSEU Local 415 Room B449 Algonquin College of Applied Arts and Technology 1385 Woodroffe Avenue Nepean, Ontario K2G lV8 Dear Mr. Brandy and Ms. Johnstone: Re: Social Contract Workload Resolution Arbitration Preliminary decision Enclosed please find my decision on the preliminary issue. Yours Truly, K.G. O'Neil cc:W.M. Kenny Gavin Leeb Between:Algonquin College and OPSEU Local 415 Re:Preliminary issue/ Social Contract Workload Complaints Before:K. G. O'Neil Hearing:February 18, 1994 Present:Gavin Leeb, Mary Evans Merrill, Stan Goldner, Doug Brandy and Marylou Annable for the Union. W. M. Kenny, Chris Warburton and Zonya Johnstone for the College. PRELIMINARY DECISION Some 147 professors have filed workload complaints said to arise from conditions associated with the Social Contract. The College objected to my jurisdiction to hear them, and on agreement, the parties engaged counsel and addressed me on the preliminary matter, because of the unusual nature of the circumstances. Neither party intended this to set any precedent. I viewed it as a practical departure from the usual informal WRA process, which has not traditionally included counsel. Having carefully considered the helpful submissions of both parties, I have come to the conclusion that my jurisdiction to hear these complaints has not been ousted by The Social Contract Act, or otherwise. It may be that certain aspects of specific complaints may be outside my jurisdiction, but that cannot be stated on a global basis. My brief reasons for this conclusion and my observations on the resulting practicalities follow. Jurisdiction To start with, the intent of the parties as to the nature of the WRA process, and the WMG process which precedes it, seems quite clear from the plain language of sections 11.01 and 11.02. The parties wished an especially expeditious process to handle workload complaints and other more general matters dealing with workload, which would be separate from, but complementary to the general grievance and arbitration process under Article 32 of the collective agreement. The fact that it is a Workload Resolution Arbitrator who is to resolve matters, if the WMG cannot, indicates that the parties intended it to be in the nature of an arbitration procedure, albeit more informal, more limited in jurisdiction and less cumbersome than the more standard grievance and arbitration procedure. Article 11.02 F 8 reinforces this, as it makes the decision of the WRA of the same force and effect as a decision of a Board of Arbitration under Article 32. Thus, for the purposes of the argument as to the effect of section 33(1) of The Social Contract Act on my jurisdiction, I am of the view that the WRA process is one of the "grievance or arbitration procedures" referred to in that section. Even if a workload complaint is not a grievance per se, a question I need not decide, it is clear to me that a process presided over by an arbitrator is an arbitration process. I am therefore of the view that there is nothing in s. 33(1) which ousts my jurisdiction, although s. 33(2) makes it clear that I am not to make any decision that an adjudicator is entitled to make. However, that is somewhat redundant in the face of the clear intention of the parties in Articles 11.01 and 11.02 of the collective agreement. Not only am I not entitled to make a decision an adjudicator would make; in my capacity as a WRA, I am only entitled to make decisions within the confines of Articles 11.01 and 11.02. And whatever may be the overlapping authority of an arbitrator sitting under Article 32 of the collective agreement, if any, a question which it is not necessary to answer, it is clear that the collective agreement gives me jurisdiction to adjudicate within the confines of the workload formula. We are then left with the core question: are these complaints somehow outside the confines of the workload formula because of their subject matter? The union has made clear that it is not asking for any determination as to the validity of the "fail-safe" program, or anything relating to compliance with the program or the provisions of The Social Contract Act. And I agree with the employer that I am without jurisdiction to determine questions relating to the validity of the program, or compliance with it. However, it is my view that the effect of management directives on the SWF's in question is something I am entitled to hear, regardless of the fact that the directives are related to the program. Section 33(1) appears to specifically contemplate such a result. At the same time, it should then be clear that a remedy requested which affects the program is not one I am likely to grant, unless I can be convinced that it is within my jurisdiction and appropriate. As well, section 34(3) explicitly refers to the prevalence of The Social Contract Act over provisions in the collective agreement relating to hours of work and overtime pay. It is my view, however, that this does not mean these provisions are written out, but that the Act prevails in case of conflict. Ir. any event, there are many potential remedies within the workload formula that would not likely run afoul of section 34(3). The main point in this regard is that the fact that some remedies may be unavailable does not deprive me of jurisdiction to entertain the workload complaints. In my view the legislature would have had to use much different language than sections 33 and 34 to achieve that result. I would observe that s. 52 of The Social Contract Act also supports my view of the matter. The collective agreement arbitration provisions exist in the legislative context of sections 45, 46 and 46.1 of The Labour Relations Act. Section 52 provides that The Social Contract Act would only prevail over those statutory provisions to the extent necessary to carry out the intent and purposes of The Social Contract Act. I am not persuaded that suspending the operation of the workload resolution process is necessary to that end, although, as I have said, it may have an impact on my remedial options, if any of the complaints are successful. There is also the additional question as to whether the vast bulk of the complaints, the 124 which deal with the professors who have had their unpaid time assigned in non-contact (non-teaching) time, are outside my jurisdiction because of Article 11.08. I am of the view that Article 11.08 does not oust my jurisdiction to hear these, although it does make it clear that my focus on those may not be activities taking place in non-teaching time. What is left is the impact on the SWF, if any, of duties that are then required to be done in the teaching time. The Practicalities Having found above that I have jurisdiction, I feel it appropriate to make some observations about the practicalities of the matter. In this context, the College asked me to adjourn these complaints until the review of the plan was finished, because of the eventuality of their being amendments to the plan. Although this is tempting, I do not find it appropriate because there is no provision that the current work configuration which is the result of the College's implementation of the plan is stayed while that process goes on, nor would that be practical. There is no indication of how long that would take in any event, and the intent of the workload clause was to resolve workload complaints before or during the semester to which they relate. Deferral would not solve the problems to the extent that they have merit, and would render many of them moot, which appears specifically contrary to the intent of the workload formula. However, given the number of the complaints, and the similarities among them, it is my view that certain steps should now be taken to streamline the process of resolution, in keeping with the obvious intent of the WRA process. I have the discretion under Article 11.02 F5 to determine what I consider to be appropriate procedure. With this in mind, before this matter proceeds any further I would suggest the following steps be taken: 1. Individual complainants should be asked by the union to indicate as soon as possible whether they wish to proceed further. It is possible that some complaints have been effectively resolved as a result of subsequent discussions with supervisors. As well, the union and the complainants might well reflect on the profitability of continuing with any which are likely to run afoul either of the remedial limitations I referred to above or Article 11.08. 2. The union should attempt to determine how many remaining complaints contain issues different from, or in addition to the form complaint. Those issues should be dealt with by the WMG as soon as possible to see if they can be resolved, if they have not already been resolved between professors and their supervisors. 3. For the standard portion of the complaints, I note that there are certain assumptions or principles underlying the two paragraphs. I would articulate these as follows: For paragraph a: A professor who has been given six unpaid leave days in teaching time, is entitled under the workload formula to a new SWF which distributes the total workload hours for the semester concerned over the shorter period of contact, to specific direction as to what job duties not to perform, and to payment for any ensuing overtime. For paragraph b: A professor who has been given six unpaid leave days in non-teaching time is entitled to a new SWF to reduce total workload by 52.8 hours for the semester, to direction as to what work should not be done, and to overtime for six days in the alternative. On their face, there is nothing individual about those assumptions, and therefore considerations of expedition and cost would indicate that some preliminary ruling on those principles might assist the parties. I would suggest then that the parties address me, in writing, on whether the workload formula provides a basis for entitlement to revised SWF's, further direction from management and/or overtime in the general circumstances of these complaints. I would then schedule a conference call to ask questions if I had any, after which I would render a further award limited to my view of the meaning of the workload formula in that regard. Following that, I would give the parties an opportunity to attempt to resolve the complaints in view of my interpretation, failing which I would determine procedure for dealing with any outstanding complaints. I would ask the parties to indicate if this procedure is agreeable, and if not, to consult with each other to see if they can agree on a procedure. Failing that, the parties are to identify their preferences as to procedure as soon as possible, and no later than March 7, 1994, in writing to me, with copies to the other side. I will then determine a time table for submissions on the general question outlined above, and/or an alternative procedure under Article 11.02 F 5. Dated this 25th day of February, 1994 K. G. O'Neil