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HomeMy WebLinkAbout1993-1948.O'Brien.03-09-24 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1948/93 0179/94 0236/94 UNION# 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) Grievor - and - The Crown III RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE D LeIghton Vice-Chair FOR THE UNION Tim Hadwen General Counsel Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER DavId Strang Semor Counsel Management Board Secretanat HEARING January 20 27 February 19 & 25 March 25 SubmIssIOns receIved Apnl 2 and 15 2003 2 DECISION The partIes In thIS case have been workIng toward develoPIng a SystemIc Change PolIcy for the mImstry SInce the ongInal settlement of the case on August 1 1995 (the O'Bnen award) SInce that tIme the partIes have achIeved many mInutes of settlement and thIS board has Issued decIsIOns as necessary to assIst In the process Part one of thIS decIsIOn addresses the final outstandIng Issues on gender balance, to be decIded wIthout reasons In a quaSI-Interest arbItratIOn format. Part two deals wIth the final outstandIng Issues on the short-term assIgnments polIcy also to be decIded by quaSI-Interest arbItratIOn wIthout reasons Part three concerns Issues of ImplementatIOn of the SystemIc Change PolIcy PART ONE - GENDER BALANCE ISSUES On December 4 2001 the board held that the Issue of gender balance belonged on the final lIst of Issues for resolutIOn between the partIes The partIes have been able to settle a number of Issues ansIng under the tOpIC of gender balance but other Issues remaIn outstandIng and therefore must be decIded under the quaSI-Interest arbItratIOn format that the partIes agreed to some months ago There are five general areas under the Issue of gender balance that need to be addressed. These are goals, InformatIOn, strategIes, commumcatIOn and that the board remaInS seIzed. SInce thIS part of the decIsIOn IS to be made wIthout reasons, no summary of the submIssIOn IS Included. I have consIdered all the submIssIOns carefully In comIng to a decIsIOn. The folloWIng lIst of proposals are made by the umon and It was agreed by the partIes that It would provIde the framework for the Issues In dIspute Where the employer 3 agreed to partIcular proposals It IS noted. Where not specIfically noted, the employer dIsagrees wIth the proposed language beIng Included In the SystemIc Change PolIcy and dId not propose alternatIve language The decIsIOn of the board IS noted dIrectly after each proposal where necessary 1) GOALS FOR ACHIEVING GENDER BALANCE IN THE CORRECTIONAL OFFICER WORKFORCE - UNION'S PROPOSALS 1 1 EXTENT OF REQUIREMENT TO IMPLEMENT GOALS Goals shall be reassessed annually and If not beIng met, addItIOnal measures to facIlItate the reachIng of the goal would be consIdered. Decision The proposal is granted. 1.2 LONG- TERM NUMERICAL GOAL The percentage of female employees In the classIfied CorrectIOnal Officer workforce should be the same as the percentage of female employees In the general workforce populatIOn In Ontano Decision The proposal is granted in part as follows The percentage of female employees in the Classified Correctional Officer workforce should be within 10% plus or minus the percentage of female employees in the general workforce population in Ontario. The percentage of female employees employed as managers by the Mimstry should be the same as the percentage of female employees In the general workplace populatIOn In Ontano Decision The proposal is denied. 4 1.3 SHORT-TERM NUMERICAL GOALS FOR BARGAINING UNIT POSITIONS There should be some Improvement each year In the rate of female partIcIpatIOn In the workforce There should be a 60% hmng goal for classIfied full tIme officer vacanCIes annually untIl 2005) Decision The proposal is granted in part as follows There should be some increase each year in the rate of female participation in the classified correctional officer workforce until the long-term numerical goal is reached. 14 SHORT-TERM NUMERICAL GOALS FOR SUPERVISORY POSITIONS There should be a further hmng goal for the fillIng of vacanCIes for front lIne supervIsory (OMI6) posItIOns The proposed goal IS fillIng 75% of the posItIOns WIth women annually untIl 2005 Decision The proposal is denied. 1.5 GOALS SHOULD APPLY INSTITUTION BY INSTITUTION The goals noted above should be applIed on an InstItutIOn by InstItutIOn basIs Each InstItutIOn should be responsIble for seekIng to reach the goals wIthIn the InstItutIOns workforce, and may apply for specIfically taIlored goals to be set. Decision The proposal is denied. 5 2) INFORMA TION REQUIRED TO MEASURE PROGRESS OF ACHIEVING GENDER BALANCE 2.1 TO WHOM INFORMATION SHOULD BE SUPPLIED a) InformatIOn shall be provIded quarterly to the SystemIC Change Steenng CommIttee, so long as It operates and thereafter quarterly to the Mimstry Employee RelatIOns CommIttee, or as specIfied. Agreed by parties. b) Each InstItutIOn's commIttee wIll also receIve the relevant InformatIOn. Decision The proposal is granted. 2.2 NA TURE OF INFORMATION TO BE SUPPLIED BY THE MINISTRY ON AN ONGOING BASIS a) The Mimstry's best contInUOUS servIce date lIst for all bargaInIng umt employees Agreed by parties. b) The Budget AllocatIOn Model posItIOn Inventory of all vacanCIes Decision The proposal is denied. c) All seconded posItIOns, both those occupIed and those funded but not occupIed Decision The proposal is denied. 6 d) All Job trades as per current practIce Agreed by parties. e) All voluntary eXIt optIOn opportumtIes, and partIcIpants, and all lateral transfer opportumtIes and partIcIpants as per current practIce Agreed by parties. f) Temporary assIgnments longer than five weeks that can be reasonably antIcIpated Decision The proposal is granted. g) SIte specIfic gender composItIOns of each InstItutIOn's workforce by cost center for classIfied and unclassIfied bargaInIng umt (and management) posItIOns Agreed by the parties except for management information. Decision The proposal is granted. h) The female workforce at each InstItutIOn that IS converted from unclassIfied to classIfied posItIOns and workplace data concermng the numbers of employees promoted from the bargaInIng umt to management. Agreed by parties in November 7, 2002 Minutes of Settlement. 2.3 OTHER INFORMATION MEASURES a) Gender balance shall be regular tOpIC for systemIc Change Steenng CommIttee and, after It ceases to operate, for the MERC Agreed by parties. 7 b) Gender balance to be addressed In the external audIt At the InstItutIOnal or regIOnal level, the LERC or RERC or an agreed sub- commIttee thereof, shall meet regularly to reVIew progress on the SystemIc Change Programme, IncludIng gender balance In the absence of a functIOmng RERC/LERC the Issues shall be dealt wIth of the MERC The MERC shall provIde appropnate gUIdance regardIng specIfic Issues The LERC shall report back on progress Agreed by parties in the November 7, 2002 Minutes of Settlement. 3) STRATEGIES TO ADVANCE THE PROGRESS OF ACHIEVING GENDER BALANCE 31 DISCUSSIONS TO ADVANCE USE OF STRATEGIES Agreed by parties that proposals under this heading are redundant. 3.2 HIRING AND PROMOTION a) HIRING CLASSIFIED BARGAINING UNIT POSITIONS BasIc traInIng (COSTART) wIll be made avaIlable as a duty assIgnment WIth expenses and tUItIOn for any otherwIse qualIfied female employee who does not have that traInIng, to a maXImum of 20 traInIng opportumtIes (20 people) Decision The proposal is denied. Where there IS any IdentIfied shortage of candIdates for posItIOns at an InstItutIOn as IndIcated by a below Mimstry average percentage of female partIcIpatIOn In the workforce at that InstItutIOn, the area of search for vacanCIes wIll be wIdened as necessary to produce a reasonable pool of female candIdates Decision The proposal is granted. 8 The partIes wIll make use of the Enhanced RecruItment ImtIatIves Programme Agreed by parties. b) HIRING FOR MANAGEMENT POSITIONS Mimstry to table a plan for succeSSIOn planmng for semor management posItIOns a) The area of search for OM16 posItIOns wIll be broadened as necessary to ensure sufficIent female candIdates b) Managenal posItIOns ImmedIately above OM16 wIll be open for applIcatIOn by both OM16 and CorrectIOnal Officers 2 c) Management vacanCIes wIll be posted and not filled by reclassIficatIOn d) Management vacanCIes wIll be filled In a tImely fashIOn, and, In any event, wIthIn 3 months Decision The proposal is denied. c) IMPROVING SUITABILITY FOR ADVANCEMENT INTO MANAGEMENT POSITIONS a) For management Jobs In InstItutIOns, all applIcants who have not receIved basIc OM16 traInIng wIll be able to receIve It on request and wIthout cost. Decision The proposal is denied. b) Full Informal/formal mentonng Programme to be put In place by end of 2003 for all CorrectIOnal Officers, but wIth a focus on women CorrectIOnal Officers 9 Decision Agreed by parties except for implementation date. The proposal of a mentoring Programme, agreed by the parties shall be fully operational by January 31, 2004 3.3 UNCLASSIFIED CONVERSION a) Increased mentonng of unclassIfied. Decision Unclassified staff shall be included in the mentoring Programme by April 1, 2004 b) StandardIzatIOn of ShIft dIstnbutIOn and schedulIng. Decision The proposal is denied. c) UnclassIfied contracts are currently SIX months and are renewed as a matter of course unless there IS reason not to The mImstry wIll provIde twelve-month annual contracts begInmng at the end of the first sIx-month contract provIded that a twelve-month contract IS consIstent WIth the mImstry's antIcIpated reqUIrements at the facIlIty concerned. Agreed by parties. d) TraInIng unclassIfieds to work In both young offender facIlItIes and adult facIlItIes so they wIll be able to access Jobs In both locatIOns Decision The proposal is denied. 10 34 DOWNSIZING Use of temporary classIfied assIgnments, and Increased use oflateral transfers, Job trades, relocatIOn allowances and traInIng to provIde employees wIth temporary employment opportumtIes whIle bndgIng to new employment. Decision The proposal is granted in part as follows Where operationally feasible use of temporary classified assignments, lateral transfers and job trades shall provide employees with temporary employment opportunities while bridging to new employment. 4) COMMUNICA TION The partIes shall contInue the current JOInt commumcatIOn process and ensure all Interested partIes receIve tImely commumcatIOn of specIfic ImtIatIves Agreed by parties. 5) THE BOARD REMAINING SEIZED a) The Gnevance Settlement Board shall remaIn seIzed wIth respect to any dIsagreement that mIght anse about the goals, the extent of ImplementatIOn or manner of use of any of these strategIes, or the provIsIOn of related InformatIOn. Agreed by parties. b) Should there be any other sIgmficant matenal change, the arbItrator shall accept submIssIOns concermng alteratIOn of the gender balance portIOn of the SystemIc Change Programme Decision The proposal is denied. 11 PART TWO- SHORT TERM ASSIGNMENTS Under the terms of the O'Bnen award the partIes agreed to negotIate a polIcy on short term assIgnments The scope of the polIcy and other Issues were decIded by the board on May 10 2002 The partIes then went on to wnte the polIcy on short-term assIgnments In wntIng the final draft the partIes dIsagreed on language for several provIsIOns The partIes agreed that these Issues are to be decIded by the board, pursuant to the quaSI-Interest arbItratIOn format, wIthout reasons I have Included only the language of the polIcy dIsputed by the partIes 1 DEFINITION OF SHORT TERM ASSIGNMENT UNION'S PROPOSED LANGUAGE A short-term developmental opportumty IS any of the non-OMl6 posItIOns In a correctIOnal facIlIty that would be of a career benefit to correctIOnal officers and Includes AdmIssIOn and DIscharge, Control, Industnal Officer RecreatIOn Officer Volunteer CoordInator Office Manager RehabIlItatIOn Officer BailIff Records Clerk, Staff TraInIng Officer Staff Secunty Officer InstItutIOnal LIaiSOn Officer Electromc SurveIlance Officer Dnver Grounds Keeper/MaIntenance Stores Clerk. EMPLOYER'S PROPOSED LANGUAGE A short-term developmental opportumty IS a non-OMl6 posItIOn In a correctIOnal officer's facIlIty that would be of a career benefit to the correctIOnal officer and Includes AdmIssIOn and DIscharge, Control, Industnal Officer RecreatIOn Officer but does not include a position classified lower than Correctional Officer DECISION A short-term developmental opportunity is a non-OMl6 position in a correctional facility that would be of career benefit to correctional officers and includes positions that are classified at or higher than a correctional officer, such as, but not limited to, Admission and Discharge, Control, Industrial Officer, Recreation Officer 12 2. THE SELECTION PROCESS UNION'S PROPOSED LANGUAGE SelectIOn from ElIgIbIlIty LIsts When a short-term assIgnment becomes avaIlable the supenntendent or desIgnee wIll subJect to demonstrated operatIOnal necessIty draw from each qualIfied lIst of candIdates to fill each type of short-term assIgnment untIl the lIst IS exhausted. EMPLOYER'S PROPOSED LANGUAGE SelectIOn from ElIgIbIlIty LIStS When a short-term assIgnment becomes avaIlable the supenntendent or desIgnee wIll, as a general rule draw from each qualIfied lIst of candIdates to fill each type of short-term assIgnment untIl the lIst IS exhausted. DECISION Selection from Eligibility Lists When a short-term assignment becomes available, the superintendent or designee will subject to demonstrated operational necessity, draw from each qualified list of candidates to fill each type of short-term assignment until the list is exhausted. 3 THE SELECTION PROCESS AFTER FIRST AND SECOND PREFERENCE UNION'S PROPOSED LANGUAGE ThIrd preference shall be gIven to all correctIOnal officers on the qualIfied lIst for short-term actIng OM16 posItIOns or short-term developmental opportumtIes, wIth the assIgnment beIng gIven to the officer who has least recently had such an assIgnment. 13 EMPLOYER'S PROPOSED LANGUAGE The remaining assignments shall be made on the basis of management's assessment of the suitability of persons for the assignment based on skill, knowledge, qualifications and experience. DECISION Third preference shall be given to all correctional officers on the qualified list for short-term acting OM16 positions or short-term developmental opportunities, with the assignment being given to the officer who has least recently had such an assignment. 14 PART THREE - IMPLEMENTATION The umon requested a heanng before the board to argue that the ImplementatIOn of prevIOUS awards and mInutes of settlement has been sIgmficantly delayed and requested orders from the board In some cases settIng specIfic tImelInes for complIance The umon IS also seekIng specIfic orders to generally assIst In the ImplementatIOn of the SystemIc Change PolIcy developed under the O'Bnen award. The umon takes the posItIOn that these orders are necessary gIven the hIStOry of what It consIders exceSSIve delay on the part of the employer In thIS case Counsel submItted that the process stalled In 1998 when after several years of negotIatIOns and dIscussIOns between the partIes, whIch led to substantIal agreement on a SystemIc Change PolIcy by the commIttee members, the polIcy was not ratIfied by the employer The umon's posItIOn In aChIeVIng a polIcy moved forward agaIn In 2000 but noted that aChIeVIng resolutIOn has been generally a lItIgatIOn dnven process The employer takes the posItIOn that the process In thIS case, begun In 1995 IS umque, that ImplementatIOn of such an extensIve programme as the SystemIc Change PolIcy does take tIme and that often people do not see the work that has been done untIl It IS actually finally fimshed. Thus the employer opposes the requested orders SUBMISSION OF THE UNION Mr Hadwen, Counsel for the umon, noted that there are two categones of orders that the umon IS requestIng the board to make The first category IS the request for orders to complete aspects of the SystemIc Change Programme wIth deadlInes The second IS a request for orders to assIst In the ImplementatIOn generally of the SystemIc Change PolIcy 15 1 INTEGRA TION OF THE SYSTEMIC CHANGE POLICY INTO TRAINING COURSES Counsel stated that on June 15 2000 the partIes agreed that "core elements of and/or an onentatIOn to antI-harassment, antI-dISCnmInatIOn, antI-racIsm, and other areas of the Ontano Human Rights Code" be applIed to specIfic courses and everyday learmng, wIth a clear and conSIstent message Examples of courses to be addressed Include . FIrst AId . CPR . Mine Safety Apparatus (MSA) . Workplace Hazard Matenal InformatIOn System (WHMIS) . Commumcable DIseases . CorrectIOnal StudIes Programme (COSTART) . Incremental Exams for ProbatIOn and Parole Officers . Spousal Assault Programme . P&P ServIce DelIvery Model (includIng core Programme traInIng) . LeadershIp 2000 . Level of SupervIsIOn Inventory - Ontano RevIsIOn (LSI-OR) . Local Access Networks System TraInIng (LAN) . InstItutIOnal CnsIs InterventIOn Team (ICIT) . CnsIs InterventIOn NegotIatIOn TraInIng . CntIcal IncIdents Stress Debnefing . Commumty Escort TraInIng . Cell ExtractIOn Team TraInIng . Volunteer TraInIng Programme . Integrated JustIce (IJ) . Locally ImtIated and mImstry sponsored traInIng . All other mandatory mImstry traInIng, current and future Counsel for the umon argued that thIS agreement between the partIes was ratIfied by the umon and by the employer Counsel said the umon notIfied the employer that there has not been complIance wIth thIS agreement: some courses have been addressed but there has been no ImplementatIOn of the concepts noted above Into the courses lIsted. It has 16 been two and a half years SInce the agreement, thus, the umon IS seekIng an order requmng complIance 2. SPECIALIZED TRAINING ThIS Item was also agreed to In the June 15 2000 agreement. The mImstry agreed to provIde specIalIzed traInIng at ItS own expense to management/supervIsory staff IncludIng bargaInIng umt supervIsor and human resources teams The specIalIzed traInIng was desIgned to traIn leaders In the SystemIc Change PolIcy's pnncIples Counsel argued that It IS Important because If you traIn the leadershIp you can effect cultural change SInce thIS traInIng has not been done, the umon requests an order from the board requmng the mImstry to table an ImplementatIOn plan for specIalIzed traInIng forthwIth. 3 TRACKING PROTOCOL The partIes agreed to a "trackIng protocol" In June 2000 and several outstandIng Issues regardIng the programme were settled In mInutes of settlement dated September 22,2000 and October 12, 2000 whIch IS a regIster of those found to have dIscnmInated. The umon requests an order requmng ImplementatIOn effectIve ImmedIately 4 WEB SITE The umon noted that the web sIte that was agreed to by the partIes was to be up and runmng by Apnl 30 2002 except If there was a work stoppage then the deadlIne was to be July 9 2002 One Issue ImtIally raised by the umon was access to sIgmng up for courses and the need for a WIN number and thIS Issue was resolved at the heanng the employer agreed to provIde InformatIOn on the web sIte for how employees would access WIN numbers 17 The other Issue raised by the UnIon at the heanng was that the web sIte was not complete By the end of the day the employer was able to confirm for the UnIon, that the famIly accommodatIOn polIcy was on the web Thus, the only outstandIng Issue WIth regard to the web sIte IS that the mInIstry has yet to establIsh certaIn lInks on the web sIte to related InfOrmatIOn. 5. COMPUTER KIOSKS The partIes agreed In January 23 2000 to provIde each correctIOnal InstItutIOn WIth a computer kIosk so that employees could access InformatIOn readIly Counsel noted that there was no tIme lImIt for ImplementatIOn of thIS measure but that the understandIng was that It would be done wIthIn a reasonable tIme frame Computer kIosks are not onlIne yet because there are sIxteen InstItutIOns that stIll need the hardware Counsel for the UnIon requested an order that the remaInIng InstItutIOns be provIded wIth hardware and the polIcy be brought onlIne Counsel also requested an order that InstItutIOns WIth kIosks be gIven the permISSIOn to go ahead and use those kIosks ImmedIately Thus, counsel asked the board to reqUIre the employer to have supenntendents of each InstItutIOn Issue a letter to employees InformIng them that the kIosks are up and runnIng and avaIlable for theIr use 6. LEARNING PLAN The partIes agreed to Implement learnIng plans for the employees on January 23 2000 to be Implemented by September 30 2002 The employer's current posItIOn on thIS IS that the traInIng of ItS managers was completed December 2002 and that the managers are now In a posItIOn to begIn USIng the new format. The UnIon takes the posItIOn that 18 many InstItutIOns are not USIng the new format yet. And It requests an order that progressIve use of the new format begIn ImmedIately 7 JOB PO STINGS The board ordered Job postIngs In a decIsIOn dated May 10 2002 requmng avaIlable Jobs be posted In each InstItutIOn so that employees are aware of Job openIngs A lIst of those responsIble for dOIng the Job postIngs In each InstItutIOn has been provIded to the UnIon. The first Issue of concern IS that In some InstItutIOns the person wIth operatIOnal responsIbIlIty for ensunng that the postIng IS done IS IdentIfied but In other cases the person IdentIfied IS a secretary or a clerk wIthout any operatIOnal responsIbIlIty Some locatIOns actually desIgnate an area manager as the one responsIble for the postIngs but thIS IS a mInonty WhIle the board's decIsIOn on May 10 2002 dId not IdentIfy that managers should be In charge, It dId IndIcate that someone In a posItIOn of responsIbIlIty should be desIgnated by the employer Thus, the UnIon argues that In each InstItutIOn someone senIor enough to have authonty must be desIgnated responsIble for postIng. The second Issue of concern to the UnIon IS that a staffing gUIde or manual has been cIrculated for comments from human resources staff and thIS IS not enough In the unIon's submIssIOn. Thus, the UnIon requests an order that persons wIth the appropnate level of responsIbIlIty be IdentIfied and that a manual be Issued wIth the dIrectIve to apply It forthWIth. 8. ORIENTATION Counsel for the UnIon noted that the Idea of requmng onentatIOn for new employees IS a very old Idea. Counsel submItted that the board's decIsIOn of May 10 19 2002 reqUIred a consIstent InfOrmatIOn package to be provIded to new employees by July 2002 It IS the unIon's submIssIOn that an order IS necessary requmng the employer to commence wIth onentatIOn ImmedIately 9 EXIT INTERVIEWS The decIsIOn of May 10 2002 of the board ordered that eXIt IntervIews be done for departIng female bargaInIng UnIt staff The employer has noted that eXIt IntervIews are beIng done for nurses and professIOnal staff It IS the unIon's submIssIOn that eXIt IntervIews should be beIng done now for correctIOnal officers leavIng the servIce and therefore requests an order requmng that eXIt IntervIews begIn forthwIth. 10 NETWORKING In May 2002, the mInIstry made a commItment to provIde networkIng opportUnItIes for women. The board ordered that It should be formally announced to employees and that one networkIng opportUnIty per year per female correctIOnal officer should be provIded. No specIfic tIme frame was IdentIfied. The UnIon recognIzes that someone has been appoInted by the employer to carry out thIS InItIatIve and IS to meet WIth the steenng commIttee shortly However the UnIon pOInts out that there IS stIll no complIance wIth thIS measure Thus, the UnIon seeks an order that a plan for network opportUnItIes be tabled forthwIth and that the networkIng opportUnIty would be provIded In 2003 11 MANAGERS SELF MONITORING CHECKLIST Counsel for the UnIon noted that thIS measure was agreed to June 23 2000 and the form Itself was approved by the partIes In June of2000 However counsel argues that the 20 ImplementatIOn of thIS measure IS "shaky" Thus, the UnIon requests an order for complIance as Intended ongInally REQUEST FOR GENERAL ORDERS TO ASSIST IN THE IMPLEMENTATION OF THE SYSTEMIC CHANGE PROGRAMME Under thIS category the UnIon IS requestIng three specIfic orders The UnIon seeks an order from the board makIng the deputy mInIsters and the assIstant deputy mInIsters of CorrectIOnal ServIces part of the MinIstry of PublIc ProtectIOn and Safety accountable for the ImplementatIOn of the SystemIC Change PolIcy The UnIon also seeks a sImIlar order makIng supenntendents responsIble for ImplementatIOn of the polIcy at the correctIOnal facIlIty that they head. The second request IS that the board order that the government create a new branch wIthIn the mInIstry charged wIth the responsIbIlIty of admInIstenng the SystemIC Change PolIcy Workplace DISCnmInatIOn and Harassment PolIcy and AntIraCIsm alternate dIspute resolutIOn. The thIrd request IS for an order that the SystemIC Change Steenng CommIttee meet regularly untIl ItS successor takes over responsIbIlIty FInally the UnIon seeks clanficatIOn of ItS oblIgatIOn under the O'Bnen award to make JOInt announcements regardIng ImplementatIOn of the polIcy Counsel for the UnIon relIed on case law and statutes, the SystemIC Change PolIcy and the hIStOry of negotIatIOns of the partIes In support of hIS argument for orders under thIS category He noted for the board that the ongInal O'Bnen award establIshed an unusual process, a JOInt InItIatIve of UnIon and management, to develop and Implement a SystemIC Change PolIcy In counsel's submIssIOn the board's JunsdIctIOn flows from the ongInal memorandum of settlement sIgned In 1995 Paragraph 21 of the mInutes of settlement provIdes as follows 21 The partIes recognIze that elImInatIng sexual harassment and dISCnmInatIOn reqUIres a systemIc approach aimed at changIng the culture polIcIes and practIces of the MinIstry whIch have allowed dISCnmInatIOn to eXISt. In the ongInal agreement the partIes also recognIzed that the "negotiatIOns and the ImplementatIOn are a pnonty " They agreed to keep a vIce-chair of the board seIzed to ensure that the terms of the agreement and subsequent orders were enforced and to deal wIth any dIsputes that mIght anse regardIng whether there had been complIance wIth the order Thus, In counsel's submIssIOn the board has clear authonty to make orders to ensure that the SystemIc Change PolIcy IS Implemented. In counsel's submIssIOn, arbItrators also generally have the JunsdIctIOn to fashIOn a remedy to gIve effect to an award. Counsel submItted that the UnIon was not seekIng for the board to make an order dISCIplInIng a manager rather the UnIon was askIng for was an order that reqUIred management to take responsIbIlIty for the SystemIc Change Programme ThIS order could be enforced In court or the UnIon could come back to the board. Counsel for the UnIon argued that the board had the JunsdIctIOn to fashIOn a remedy to gIve effect to an award even If the order reqUIred management to do somethIng normally wIthIn management nghts Counsel cIted, amongst other cases, a decIsIOn of the board In support of thIS submIssIOn OPSEU (Naumenko) and the CroYf,n in Right of Ontario (Ministry of the Solicitor General & Correctional Services) (1997) 613/94 (MIKUS) Thus In counsel's submIssIOn, all the UnIon was askIng for was for senIor management to take responsIbIlIty for what they ought to be dOIng already Counsel for the UnIon also noted the broad JunsdIctIOn under the Ontano Human Rights Code that arbItrators have pursuant to s 48 of the Ontano Labour Relations Act to fashIOn remedIal orders 22 Counsel for the UnIon argued that the O'Bnen award Itself provIded the authonty to make the requested orders Counsel also referred to the agreement of the partIes dated June 15 2000 specIfically notIng one of the obJectIves of the SystemIc Change PolIcy whIch was "to ensure accountabIlIty of both management and staff for a workplace free from dISCnmInatIOn and harassment" Counsel noted that throughout the systemIc change documents accountabIlIty IS specIfically referenced. Under "key themes" at page 8 the partIes agreed to the folloWIng language "AccountabIlItv eXIsts when all employees are held responsIble for theIr actIOn or InactIOn and managers consIstently fulfill theIr role of ensunng effectIve, tImely and fair InterventIOn to correct unprofessIOnal behavIOur and/or endorse acceptable behavIOur" Throughout thIS document there are specIfic references to the Deputy MinIster and the presIdent of OPSEU havIng certaIn responsIbIlItIes Thus, counsel argued that In the ongInal SystemIC Change document, by agreement of the partIes, IndIVIduals were reqUIred to take responsIbIlIty for ImplementatIOn of the polIcy FInally counsel for the UnIon noted that the mInIstry Itself had IdentIfied problems wIth lack of accountabIlIty for forwardIng cultural change In the mInIstry Counsel cIted the letter of Deputy SOlICItor General and Deputy MinIster of CorrectIOnal ServIces, Tim Millard, In hIS open letter to all employees of the mInIstry dated May 29 1998 IdentIfYIng the lack of accountabIlIty and the need for change Deputy MinIster Millard stated In hIS letter "As the Deputy SOlICItor General and Deputy MinIster of CorrectIOnal ServIces I take these findIngs very senously I accept the report and ItS findIngs and concur wIth the recommendatIOns of Coopers and Lybrand that leadershIp commUnICatIOns, and human resource polIcIes and practIce are pnonty areas for Improvement. With these recommendatIOns as a framework for actIOn, I am gOIng to oversee all aspects of the process for change wIthIn the correctIOnal servIces dIVIsIOn" 23 The Coopers and Lybrand culture reVIew was InItIated In 1996 The reVIew was done through questIOnnaireS and focus groups In vanous locatIOns across the proVInce Another mInIstry document dated November 2001 "Report on the EvolutIOn of Culture RevIew" also acknowledges the need for commItted leadershIp In order to Improve the culture of the mInIstry Counsel noted that the deputy mInIster has the delegated authonty from the mInIster pursuant to the MinistlY of Corrections Act, s.20 And therefore the UnIon had IdentIfied the nght people to be held accountable to Implement the SystemIC Change PolIcy Counsel argued In support of the unIon's request from the board to order that a new branch be created to Implement the SystemIC Change PolIcy that the mInIstry had agreed wIth thIS proposal Counsel cIted Ontano Human Rights Commission and Michael McKinnon and MinistlY of Correctional Services et al a board of InqUIry decIsIOn whIch summanzed eVIdence of the mInIstry that It had accepted a recommendatIOn In the DevlIn Report that recommended that such a branch be establIshed. The mInIstry's decIsIOn In response to thIS recommendatIOn, as summanzed In the McKinnon case IS as follows "MinIstry DecIsIOn The mInIstry supports and Integrated approach to conflIct resolutIOn. The mInIstry wIll go forward to EDC for approval to create a new branch that wIll Incorporate WDHP sexual Impropnety and other InVestIgatIOns as assIgned, systemIC change antIracIsm, alternatIve dIspute resolutIOn/medIatIOn." WhIle counsel for the UnIon noted that the McKinnon case was beIng appealed, he also submItted that he was not puttIng the case forward to be relIed upon by the board. He merely put the case before the board to IndIcate that the mInIstry Itself accepted and 24 supported the creatIOn of a branch that would be dedIcated In part to supportIng the SystemIc Change PolIcy The fourth request of the UnIon IS that the SystemIc Change Steenng CommIttee be ordered to meet regularly untIl the responsIbIlIty passes to the successor commIttee There should also be regular local meetIngs to ensure that the SystemIc Change Programme has local Impact and the partIes have agreed to local meetIngs GIven the hIStOry of complIance and ImplementatIOn, counsel argued that an addItIOnal push was reqUIred to ensure that the polIcy IS Implemented. Further counsel argued that the UnIon must be In the posItIOn to publIcly cntIcIze the government for lack of ImplementatIOn of the polIcy Counsel argued that whIle the employer takes the posItIOn that the UnIon cannot cntIcIze the government publIcly the UnIon IS of the VIew that It can be part of the ImplementatIOn but also be cntIcal of the tIme It has taken to Implement the polIcy Thus the UnIon IS seekIng to clanfy ItS oblIgatIOn under the polIcy that It make JOInt announcements wIth the employer on the ImplementatIOn process Counsel argued that there IS nothIng In the polIcy that prevents the UnIon from such dIrect commUnICatIOn to ItS members and that there IS a need for open and frank comment. SUBMISSION OF THE EMPLOYER - AGAINST THE GENERAL ORDERS Counsel for the employer argued first agaInst the unIon's request for orders requmng senIor management to be accountable for the SystemIc Change PolIcy and that a new branch be ordered by the board. Counsel submItted that thIS IS a proceedIng of the UnIon and the employer and that the JunsdIctIOn of the board flows from the agreements, that IS the mInutes of settlement of the partIes He also noted that the JunsdIctIOn of the 25 board IS cIrcumscnbed by the powers of the board. He argued therefore SInce no IndIVIdual was named In the case, no order could be made agaInst an IndIVIdual Counsel submItted that the Idea that the board could make an order agaInst an IndIVIdual In thIS case was contrary to admInIstratIve law and natural JustIce He contended that the Naumenko case IS dIstIngUIshable In that the thIrd party manager In that case had notIce and a chance to respond to the allegatIOns made Counsel submItted generally that thIS process began In 1995 and that It IS unIque He submItted that the O'Bnen award should never have been made SInce the order IS so general that It IS unenforceable GIven the ongInal mInutes of settlements whIch was made an order IS "broad and vague" counsel argued that the board should exerCIse restraInt, and even If the board has JunsdIctIOn to make the orders requested, It should not do so Counsel argued that the unIon's submIssIOn for a new branch IS based on the InfOrmatIOn that the executIve of the mInIstry has decIded to establIsh a branch charged wIth the responsIbIlIty of amongst other thIngs, ImplementIng the SystemIc Change PolIcy But counsel noted that thIS proposal must go to Management Board Secretanat for approval Counsel contended that It was not appropnate for the gnevance settlement board to order the creatIOn of a branch gIven the clear authonty to create a branch rested wIth Management Board of CabInet, as provIded In the Management Board of Cabinet Act With regard to the request for an order that the SystemIc Change Steenng CommIttee meet regularly counsel for the employer submItted that the commIttee currently meets approxImately every SIX weeks He noted that these dates are set by 26 agreement, that there IS a reason to meet to reVIew or report on Issues Counsel submItted that more frequent meetIngs would potentIally detract from the actual work of ImplementIng the polIcy To the request that local commIttees also meet more regularly counsel submItted that thIS request IS a monetary demand that IS more appropnately dealt wIth In collectIve bargaInIng. Finally counsel argued that JOInt commUnICatIOns between the partIes IS essentIal to the ImplementatIOn of the SystemIc Change PolIcy In counsel's VIew the UnIon cannot be both part of the ImplementatIOn process and cntIc EMPLOYER'S SUBMISSION WITH REGARD TO PARTICULAR ORDERS SOUGHT BY THE UNION In counsel's submIssIOn, the employer has moved forward steadIly wIth the ImplementatIOn of the SystemIc Change PolIcy He noted that often the employer's work only becomes clear upon the substantIal completIOn of part of the polIcy Counsel argued that the SystemIc Change PolIcy had to be Implemented lIke any other programme wIthIn the mInIstry In such a large organIZatIOn It has to be determIned how each task wIll be accomplIshed, In thIS case across thIrtY-SIX InstItutIOns of varyIng sIzes and It must be done In a manner that IS consIstent. Further In thIS case the polIcy must be Implemented whIle the mInIstry stIll ensures that reqUIrements for keepIng Inmates both secure and properly cared for IS maIntaIned. Thus, wIth all thIS In mInd counsel submItted that ImplementatIOn of the SystemIc Change PolIcy must follow a realIstIc tImetable He argued that arbItrary deadlInes would be counterproductIve 1 Integration Of Systemic Change Policy Content In Ministry Courses Counsel argued that the COSTART Programme Includes a four-hour traInIng UnIt on human nghts Counsel noted other programmes desIgned to focus on human nghts Issues IncludIng a programme for probatIOn and parole officers, the "Level of ServIce 27 Inventory - Ontano reVISIOn course" (LSI-OR) and a workshop that was conducted In Apnl 2000 on the pnncIples and process of effectIve antI-dISCnmInatIOn conducted for staff at Bell Cairn. Counsel noted there had been specIalIzed traInIng for the new learnIng plans and parts of the polIcy such as the famIly responsibIlIty leave In summary counsel submItted that If the UnIon had speCIfic concerns about the lIst of courses IdentIfied and why they were Inadequate these should be addressed speCIfically course by course and through the Steenng CommIttee 2. Special Training Counsel submItted that specIalIzed traInIng for managers had been done In 1999 2000 and 2001 on the SystemIc Change PolIcy WDHP and the duty to accommodate employees under the Ontano Human Rights Code 3 Tracking Protocol Counsel noted that full ImplementatIOn of the trackIng protocol was antICIpated shortly Counsel consented to have the trackIng system In place by Apnl 1 2003 4 Web Site With Information On Training Counsel noted that the web sIte IS up and runnIng although It was late In meetIng ItS ImplementatIOn date 5. Computer Kiosks Counsel submItted that the government has ordered hardware but does not have a delIvery date for It at thIS pOInt. Counsel noted that the mInIstry was prepared to have the sItes WIth kIosks up and runnIng by Apnl 1 2003 The order for the new hardware went out In early January 28 6. Learning Plans The traInIng of managers on performance development plans or PDPs was completed In December of 2002 In counsel's submIssIOn, the employer has Instructed managers to use the new format, whIch replaces the former performance appraisal system Counsel also noted that the mInIstry IS begInnIng to check on the completIOn of these PDPs 7 Orientation Counsel noted that the preparatIOn of the onentatIOn manual was a lengthy and tIme-cOnsumIng task and that the employer had not been cavalIer about complIance Counsel stated that hard copIes of the onentatIOn manual would be sent to managers by Apnl 1 2003 8. Job Po stings The chIef complaInt of the UnIon under thIS Issue IS who IS responsIble at each InstItutIOn for the postIng of Jobs In counsel's submIssIOn, the lIst of IndIVIduals IdentIfied by the UnIon IS the mInIstry's lIst of people who actually put up the Job postIng as opposed to the one wIth the responsIbIlIty for postIng. 9 Exit Interviews Counsel for the employers stated that there IS a senous problem In the mInIstry WIth retaInIng nurses and professIOnals Thus, the employer IS dOIng eXIt IntervIews WIth nurses and professIOnal staff SInce there was no tIme constraInt other Issues have been gIven greater pnonty but counsel noted that the employer was hopIng to have a programme In place by Mayor June of 2003 29 10 Networking Counsel noted that the IntentIOn of the mInIstry was to have opportunItIes avaIlable for all female correctIOns officers to have a networkIng expenence wIthIn 2003 11 Managers Self Monitoring Checklist Counsel noted that standard checklIst forms were developed In 2001 These forms are now part of the operatIng procedure and have been so SInce 2002 The employer IS aware of one case where a manager dId not use the proper form, but argued that substantIal complIance has been met. Summary Counsel for the employer argued In summary that the mInIstry has been workIng hard to Integrate the SystemIc Change PolIcy Into ItS operatIng procedures He submItted that the polIcy was beIng Implemented wIth dIlIgence and so that It was Inappropnate to make specIfic complIance orders Counsel also remInded the board of the context In whIch the polIcy IS beIng Implemented, specIfically that there have been two maJor labour dIsputes In the last eIght years and a maJor restructunng of the CorrectIOnal ServIces In Ontano Counsel submItted In conclusIOn that no orders are appropnate here, although he noted that the employer has agreed to Implement the trackIng protocol by Apnll 2003 and to delIver the hard copy of the onentatIOn manuals by that same date DECISION - The General Orders HavIng carefully consIdered the submIssIOns of the partIes, I have concluded that my JunsdIctIOn to decIde the unIon's request for orders to Implement the O'Bnen award flow from the award Itself My powers here then are to enforce a settlement. There IS nothIng In the ongInal award that contemplated creatIng a new branch. The agreement of the 30 partIes was to develop a polIcy to effect systemIc change for women correctIOnal officers The mInIstry acknowledged It has dIscnmInated agaInst Ms O'Bnen because of her gender by managIng the workplace In such a manner as to create a workplace pOIsoned by gender hostIlIty and dISCnmInatIOn both through the dIrect actIOns of managers and through management condonatIOn of dISCnmInatory employee and Inmate behavIOur The agreement In the award was to work wIth the UnIon to ensure that such dISCnmInatIOn dId not occur In the future Thus the mInIstry IS oblIged to effect change under the O'Bnen award. It IS also oblIgated by the Ontano Human Rights Code to all ItS employees provIde, to the best of ItS abIlIty a workplace free of harassment and dISCnmInatIOn. ThIS IS an ongoIng duty of due dIlIgence under the Code I have concluded that thIS board does not have the JunsdIctIOn to order the creatIOn of a new branch to effect the SystemIc Change PolIcy but It would be WIse for the mInIstry to take all reasonable steps to ensure that they satIsfy the reqUIrements under the Code It would seem that the creatIOn of a new branch IS a sensIble approach to meetIng the duty of due dIlIgence Counsel for the employer acknowledged that the executIve of the mInIstry has decIded It wants a new branch to be responsIble for systemIc change and now It IS up to Management Board of CabInet. As to the order requested that senIor management be held accountable for ImplementatIOn of the SystemIc Change PolIcy I am not convInced In thIS case that a specIfic order IS necessary or appropnate OPSEU and The Crown In Right of Ontano - MinIstry of CorrectIOnal ServIces agreed In the ongInal O'Bnen award to develop and Implement a SystemIc Change PolIcy That agreement bound OPSEU and the government to development and Implement the polIcy It IS too late to argue as the 31 employer dId here that the settlement made an order of the board In 1995 IS too broad and vague, and should not have been made at all The partIes made a bIndIng agreement and thus the senIor managers of the mInIstry are already charged wIth the responsIbIlIty of complYIng wIth the O'Bnen award, and specIfically the SystemIc Change PolIcy The UnIon asked for an order requmng the SystemIc Change Steenng commIttee to meet regularly and the employer opposes thIS request. The management and UnIon members of thIS commIttee have worked hard to achIeve systemIc change They would not meet to waste tIme Thus the steenng commIttee IS hereby ordered to meet, as has been theIr practIce every SIX weeks, unless both the UnIon and management members agree that there IS no need for a meetIng. With regard to the fourth and last request under general orders, and after careful reVIew of the O'Bnen award, I am persuaded that nothIng In the award prevents the UnIon from beIng cntIcal of the process or the problems wIth aChIeVIng systemIc change as the UnIon VIews It. CntIcIZIng the process IS not InCOnsIstent WIth also makIng JOInt unIon/management announcements on development of the programme The employer may also be nght that open cntIcIsm of management may not foster cooperatIOn. However I am convInced that It IS the unIon's nght to commUnIcate to ItS members as It sees fit. Specific Orders 1) Integration of the Systemic Change Programme into Training Courses The partIes agreed on June 15 2000 that "core elements of and/or an onentatIOn to antI-harassment, antI-dISCnmInatIOn, antI-racIsm and other areas of the OntanoHuman 32 Rights Code" be applIed to certaIn courses already In eXIstence WIthIn the mInIstry A lIst of courses IS found at page 15 of thIS decIsIOn. The employer's chIef obJectIOn seemed to be that the MinIstry had developed other courses covenng the above noted elements regardIng human nghts However havIng agreed on June 15 2000 to Integrate the concepts of antI-harassment and dISCnmInatIOn Into specIfic courses then the partIes are oblIged to do so Thus, the board orders the employer to comply wIth ItS own agreement on June 15 2000 and Integrate the SystemIc Change PolIcy Into the courses IdentIfied above ThIS exerCIse must begIn thIrty days after the release of thIS deCIsIOn, and be concluded by June 30 2004 2) Specialized Training Counsel for the UnIon noted that thIS Item was agreed to by the partIes on June 15 2000 The mInIstry agreed to proVIde specIalIzed traInIng at ItS own expense to management and supervIsory staff, IncludIng bargaInIng UnIt supervIsors and human resources teams Counsel for the employer noted that some specIalIzed traInIng has occurred for management and that a consultant has been selected to help delIver thIS part of the programme GIven thIS Item was agreed to by the partIes on June 15 2000 the board hereby orders the mInIstry to table an ImplementatIOn plan for specIalIzed traInIng by December 1 2003 3) Tracking Protocol There IS no need for an order of the board SInce the mInIstry agreed to Implement the trackIng protocol by Apnl 1 2003 4) Web Site 33 The ImplementatIOn Issues under thIS sectIOn were agreed to and resolved at the heanng except for the unIon's complaInt that certaIn lInks had not been establIshed on the web sIte The board hereby orders that any InformatIOn lInks, whIch the partIes have agreed to must be on the web sIte WIthIn thIrty days of the Issuance of thIS decIsIOn. 5) Computer Kiosks The partIes agreed In January 23 2000 that each correctIOnal InstItutIOn would have a computer kIosk so that employees could access InfOrmatIOn. The mInIstry noted that the order for addItIOnal hardware went out In early January 2003 There are stIll sIxteen InstItutIOns that need hardware The board hereby orders that supenntendents notIfy employees as soon as the new hardware arnves and the kIosks are up and avaIlable for use 6) Learning Plan The UnIon IS askIng for an order that the new learnIng plan format be used ImmedIately Counsel for the employer noted that thIS new PDP replaces performance appraisals and as people reqUIre a performance appraisal the new format IS beIng used. No order IS appropnate under the CIrcumstances 7) Job Po stings The board ordered Job postIngs In a decIsIOn dated May 10 2002 requmng that avaIlable Jobs be posted In each InstItutIOn so that employees are notIfied of employment opportUnItIes The unIon's complaInt here IS that IndIVIduals wIthout authonty are reqUIred In some InstItutIOn to do the postIngs and thIS IS Inappropnate The employer's submIssIOn was that thIS lIst was only a lIst of those who actually had the J ob of puttIng up the postIngs The board hereby orders that a lIst of IndIVIduals who are responsible for 34 postIngs at each InstItutIOn, as opposed to those who have the Job of pInnIng up the postIng, be IdentIfied and provIded to the UnIon wIth the staffing gUIde no later than thIrty days after the Issuance of thIS decIsIOn. 8) Orientation In a decIsIOn of the board dated May 10 2002, the employer was ordered to provIde an InformatIOn package to new employees by July 2002 Counsel for the employer made It clear at the heanng that hard copIes of the onentatIOn package and a manual would be sent to managers by Apnl 1 2003 GIven the delay In ImplementatIOn of thIS order the employer must commence wIth onentatIOn of new employees upon Issuance of thIS decIsIOn. 9) Exit Interviews In a decIsIOn of the board dated May 10 2002, the employer was ordered to conduct eXIt IntervIews of female staff who were not termInated, surplused or retmng. ThIS order covered more than nurses and professIOnals Thus, the board hereby orders that eXIt IntervIews begIn forthwIth of all departIng female staff, except as noted above 10) Networking The UnIon seeks an order for a plan for a network opportUnIty that wIll be provIded by the end of 2003 for female bargaInIng UnIt staff The mInIstry IS In agreement to provIde such a networkIng opportUnIty by the end of 2003 Thus, the board hereby orders that a networkIng opportUnIty be provIded for female correctIOnal officers by the end of 2003 11) Managers Self-Monitoring Check List 35 Counsel for the UnIon noted that thIS checklIst was agreed to by the partIes on June 23 2000 but was of the VIew that not all managers were USIng the form Thus, the UnIon seeks an order requmng that all managers use the new form Counsel for the employer noted that they were aware of only one case where the form was not used and otherwIse were of the VIew that they were complYIng wIth thIS part of the programme I am not convInced that an order IS reqUIred here I remaIn seIzed of thIS matter at the request of the partIes Dated at Toronto thIS 24th day of September 2003