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HomeMy WebLinkAbout1993-1948.O'Brien.00-11-14 Decision 2 o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #1948/93 0179/94 0236/94 OPSEU #93F955 94A574 94A608 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (O'Brien) Gnevor - and - The Crown ill RIght of Ontano (Mimsm of CorrectIOnal ServIces) Employer BEFORE DJ.D LeIghton Vice Chair FOR THE Tim Hadwen, Counsel GRIEVOR Ontano PublIc ServIce Employees Umon FOR THE Len Mam Counsel EMPLOYER Legal ServIces Branch Management Board SecretarIat HEARING October 12, 2000 1 IntroductIOn The grievances were settled by Memorandum of Settlement, which was made an order of the Grievance Settlement Board (the board) on August 1, 1995 On December 22, 1999 the union asked the board to reconvene to address issues relating to the implementation of the settlement The parties agreed to further minutes of settlement on March 13, 2000 As part of those minutes, the parties agreed that certain issues would proceed to arbitration and others to mediation and arbitration The outstanding issues relate to the "Systemic Change Programme" which the parties have been jointly developing over the last several years The1995 Settlement includes the following provisions 7 The parties acknowledge that resolution of these grievances requires redressing the discrimination and improper conduct specifically faced by Ms O'Brien and addressirg issues of a systemic nature in the Ministry 2 1 The parties recognize that eliminating sexual harassment and discrimination requires a systemic approach aimed at changing the culture, policies and practices of the Ministry, which have allowed such discrimi nation to exist 2 2 The Ministry agrees to work with OPSEU in developing and implementing a Systemic Change Programme which shall be designed to eliminate the barriers to full workplace participation of women correctional officers in the Ministry generally and in particular at the Windsor Jail Such a programme would design and implement positive and supportive measures to promote the equality of women correctional officers including a accommodating staff with family responsibilities As a first step in negotiating the Systemic Change Programme, the parties agreed to Terms of Reference, setting out their joint objectives which include in part the following 2 ?? To support and encourage full participation of male and female employees in the workplace as permitted by but not limited to the provisions of legislation and existing policy ?? To develop and implement a framework for resolution of accommodation issues with respect to family responsibilities and other areas covered by the Human Rights Code as required to achieve the objectives of the Systemic Change Programme The Terms of Reference established two working groups composed of management and OPSEU members The Design and Implementation Working group produced a draft report on October 27, 1998 after lengthy negotiations It included amongst other provisions a comprehensive set of solutions to the issue of accommodating employees' family responsibilities The provisions were designed to eliminate barriers to employment and advancement because of family status Although the draft report for the Systemic Change Programme was completed on March 31,1998, there was significant delay in finalising the programme and in early 1999 the union asked for a hearing before the board The Minutes of Settlement of March 13, 2000, referred to above, outline the parties obligations to finalise and implement the original settlement agreement In these minutes the parties agreed to strict time lines for the ratification of the final report, and to a method of resolving outstanding issues Clause 12 of the agreement provides S 14, compensation for mediators and accommodation for child care issues will proceed to arbitration in front of Arbitrator Leighton This agreement is without prejudice to any and all arguments the employer wishes to make about the jurisdiction of the arbitrator to deal with S 14 of the Code, compensation for mediators and accommodation for child care issues and its argument, that should these matters require arbitration, that the issue (or issues) is (are) beyond the scope of the minutes of settlement and is (are) therefore inarbitratable This decision addresses the issue of child-care The Employer's Submission 3 The employer acknowledged that pursuant to the original Memorandum of Settlement the board had the jurisdiction to decide the child care issue The employer submitted that in order to meet the obligation of the agreement "to design and implement positive and supportive measures to promote equality of women correctional officers including accommodating staff with family responsibilities," it must adhere to the Code and the case law on "family status" The employer took the position that an employee may make a claim for accommodation based on family status Further, given the sparcity of law on the issue and because the authorities have not enunciated criteria to evaluate such a request, the employer submitted that it is premature to set out a substantive policy for accommodation of employees because of family status The employer proposed to set up a corporate human resources mechanism as part of the Systemic Change Programme to review requests for accommodation based on family status, which were not resolved at the local level Employer counsel argued that the case law requires employers, employees and unions to take a flexible, realistic, practical, fact specific approach to the issue of accommodating for family status The Union's Submission In union counsel's submission the issue before the board is what is required to implement the board order of August 1, 1995 It was the union's position that the parties agreed to design and implement a Systemic Change Programme specifically addressing the accommodation of employees with family responsibilities Counsel argued that the employer and the trade union acknowledged in the original settlement of the grievance that there is a systemic problem in the Ministry, which requires a systemic solution Individual assessment based on a request for accommodation is not enough Positive and supporti ve measures to accommodate employees with family responsibilities is required under the 4 settlement agreement Counsel argued that the working group's solution as detailed in the draft report of October 27, 1998 should be ordered by the board Employer's Alternate Submission Employer counsel argued in reply that the working group's proposals on this issue were not accepted by the employer's principals Further, the draft report recommended is, in essence, a process of working out accommodation And this process, in counsel's submission, is best developed as part of the employer's, union's and employee's ongoing duties to address the issue as they arise Employer counsel submitted that I could consider an alternate solution to deciding this issue He proposed that I could send the parties back to the table to negotiate further on this issue There should be a time limit on reaching an agreement If an agreement was not reached the parties would put the issue before me again as a "quasi -interest" arbitration The union opposed this alternative proposition However, the union argued that if I could not make an order that the draft policy should be implemented, then it agreed to proceed with further negotiations Union Counsel submitted guidelines for discussions should be included in the order, including a direction that the parties build on what has already been done by the working group Union counsel agreed strict time limits should be set by the board The union agreed to the "quasi interest" arbitration on the policy should the parties fail to reach agreement Decision The language of the Memorandum of Settlement ordered by the board on August 1, 1995 requires the parties to negotiate positive, supportive measures to 5 promote the equality of women correctional officers These measures must include provisions to accommodate staff with family responsibilities What the employer proposes here is no more than what is required by law What it proposes is a case by case assessment of employee requests for accommodation This is in accord with its duties under the Human Rights Code But it does not satisfy its obligation under the memorandum The settlement clearly requires the employer to do more than the status quo Further, in the Terms of Reference the parties agreed that in order to encourage full participation of male and female employees in the workplace they would not limit themselves by the existing legislation and existing policy But this board is presently not in the position to order that the Draft report on the Systemic Change Programme on child care accommodation be implemented The parties set up a process which included ratification by their principals The section of the report on the accommodation of child care was not ratified by the employer's principals However, not ratifying what the working group proposed does not end the employer's obligation under the settlement agreement It would be best if the parties crafted their own policy on this issue However, if that is not possible, justice requires a resolution Thus if the parties are not able to negotiate a policy which is acceptable to their principals, within eight weeks of the date of this decision, then - as they have agreed - the board shall proceed with a quasi- interest arbitration The parties agreed that in such a hearing they would each present proposals to satisfy their obligations under the Memorandum of Settlement Ultimately, I would decide on the language of the policy Thus having carefully considered the submission of the parties, and for the reasons noted above, I hereby order the parties to proceed with negotiations on the child care issue A hearing date shall be set in January by the Registrar Should the parties not reach agreement on the matter, the hearing shall proceed 6 0 0 0 N ~ Q,) ..c E Q,) > r- 0 Z - 0 >- Ctl "'C l.... ..c Ctl -- ...r ..c ...... 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