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HomeMy WebLinkAbout2017-1169.Gell.19-12-18 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-1169; 2017-1245; 2017-1791 UNION# 2017-5112-0185; 2017-5112-0191; 2017-5112-0228 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gell) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION John Brewin / Manprit Singh Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING SUBMISSIONS August 29, 2019 October 1, 2019 -2- DECISION [1] This is a referral of three grievances under Article 22.16 of the Central Collective Agreement between the parties. [2] Article 22.16 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings. [3] Attempts to resolve this matter through mediation were unsuccessful. A case management decision was issued on February 21, 2019. The parties filed materials in accordance with that decision. A hearing was held on August 29, 2019. The parties agreed to waive the five day time limit specified in Article 22.16 for the issuance of a decision. Post hearing submissions were completed on October 1, 2019. [4] The material facts may be briefly stated. [5] The grievances arise from a local Compressed Workweek Agreement (“CWWA”) entered into by the parties on December 17, 2013 with respect to the Toronto South Detention Centre (“TSDC”). The CWWA is attached as an Appendix to the decision. The numbered paragraphs in the CWWA are referred to as “sections”. [6] An initial “post pick” was done in accordance with the CWWA in or around 2014. A second post pick selection process was conducted in accordance with the CWWA in April, 2016. The Grievor is a Correctional Officer (“CO”) at TSDC and participated in the post pick process. In the April, 2016 round, the Grievor obtained his sixth pick, a post in the Admitting & Discharge Unit (the schedule contemplated 30 COs in this post). His fourth pick was a post in Health Care/Infirmary (22 COs). [7] Different posts have different shift lines associated with them, which the COs in the post rotate through. The shift lines are designated by letter and number, for example T7, E8 or X19. The letter refers to the length of a shift: “T” means a 12 -3- hour shift; “E” means an eight hour shift; and “X” means a 10 hour shift. The number refers to the starting time of the shift based on a 24 hour clock. So, a “T7” shift is a twelve hour shift commencing at 7:00 AM, while an “X19” shift is a ten hour shift commencing at 7:00 PM. The Grievor has some accommodation needs with respect to which hours he can work. The parties agreed those needs have no impact on the post awarded under the CWWA. That is, a CO is placed into a post in accordance with the CWWA even if the CO’s accommodation needs will result in variation of scheduled hours of that post. [8] Without prejudice to its position in any other matter, the Employer agrees that as a result of permanent vacancies, the Grievor would have been placed in his fourth pick, the post in the Health Care / Infirmary, on July 1, 2017 if the process in section 10 of the CWWA had been followed, and that he would have remained in that post until March 4, 2018 (after which he transferred to another institution). Instead, the Grievor remained in the Admitting and Discharge post. [9] The Admitting and Discharge post consisted of ten shifts, eight hours in length over a two week period. The Health Care / Infirmary post consisted on average of seven shifts, twelve hours in length over a two week period. [10] The Grievor claims damages for the loss of the opportunity to work overtime on the three additional shifts every two weeks he would have had available if he had been placed in the Health Care / Infirmary position. In addition or in the alternative, the Grievor claims damages for the cost of commuting to and from work six additional times every two weeks as a result of continuing to be in the Admitting and Discharge post. [11] The Employer argues there is no breach of the collective agreement. In particular, it argues the collective agreement affords COs no right to a particular post. Rather assignment of a post falls exclusively within the purview of management rights and is not subject to arbitral review. [12] The Employer submits the CWWA does not change this result. It acknowledges the CWWA was made pursuant to Article 16 of the Central Collective Agreement and COR2 of the Correctional Bargaining Unit Collective Agreement. The Employer argues, however, that where the parties want the terms of such an agreement to be enforceable by arbitration they say so, citing Ontario Public Service Employees Union (Dvorak) v Ontario (Community Safety and Correctional Services), unreported, GSB File Nos. 2006-0762 and 2006-2062, June 4, 2009 (Briggs). By contrast, in this case, section 28 of the CWWA -4- provides disputes will be referred to the co-Chairs of the MERC for resolution. If the co-Chairs of the MERC are unable to reach an agreement, the Employer argues there is no recourse to arbitration. Rather the Union, if it wishes, may give written notice terminating the CWWA in 90 days. [13] In Dvorak, the agreement in question contained a paragraph which stated: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. Vice Chair Briggs referenced this paragraph and then stated: “It is this agreement that provides me with jurisdiction to resolve the outstanding matters.” [14] In my view, Vice Chair Briggs was commenting on the fact the agreement seized specifically her with determination of disputes. She did not determine that an agreement must contain some sort of arbitration provision in order for it to be enforced through arbitration at all. [15] Section 28 of the CWWA states that “disputes arising out of staffing decisions from this agreement will be referred to the MERC employer and union Co-Chairs for resolution.” The term “staffing decisions” is not defined in the CWWA, nor is it necessary to comprehensively define it for the purposes of this award. Rather, the issue which arises in the case before me is whether a breach of section 10 of the CWWA constitutes a “staffing decision”. This does require some discussion of the parameters of what could constitute a “staffing decision”. [16] “Staffing decisions” may relate to the size of the overall staff complement (which is referenced expressly or implicitly in sections 21, 22, 25 and 27 of the CWWA). This clearly is an issue at the core of the right of the Employer to manage the workplace. Further, section 25 states the Employer “maintains its management rights … and the parties agree that this agreement does not fetter the employer’s right in any way to … hire any number of staff as may be operationally required”. While the interplay between section 25 and section 28 need not be determined in this decision, disputes arising out of the overall staffing complement may be the kind of “staffing decision” the parties agreed would be “referred to the MERC employer and union Co-Chairs” for resolution. [17] For similar reasons, “staffing decisions” may relate to the adoption of new schedules (referenced in sections 18 and 27, and perhaps implicitly in sections 21 and 25 of the CWWA), which set out the various posts. -5- [18] By contrast, the post to which a particular CO is assigned as a result of the post selection process has no necessary impact on the overall size of the staff complement nor the manner in which a schedule is created for the assignment of that staff. A decision with respect to the assignment of a CO to a particular post is not of the same nature as a decision about overall staff complement or the overall schedule of COs for TSDC. I note as well that section 7 of the CWWA removes certain positions from the post pick selection process. It appears to me that the assignment of a CO to the remaining posts is not a “staffing decision” within the meaning of section 28. [19] In addition and in the alternative, I do not agree the fact that section 28 states disputes arising from staffing decisions will be referred to the MERC Co-Chairs for resolution precludes arbitral review of such disputes. Section 26 of the CWWA expressly preserves the Union’s right to grieve under Article 22 of the collective agreement. The extent, nature and substance of arbitral review in relation to disputes about staff complement or the schedule is not immediately apparent and need not be determined for the purposes of this decision. I note, however, that the CWWA does not appear to contain a set of criteria the application of which would result in a unique answer as to the overall staffing complement or the schedule of posts. By contrast, the CWWA does contain a set of criteria the application of which results in a unique answer as to the post to which a particular CO is assigned as a result of the process. In essence, the COs complete and submit post selection forms which are then used to assign them to posts in order of seniority. More particularly, with respect to the issue in this case, in the event of a subsequent permanent vacancy section 10 provides: When permanent vacancies occur in the compressed work week schedule, efforts will be made to fill the vacancy within 14 days of the permanent vacancy as per the post selection form submitted as per number 4 above. Efforts will be made to fill the vacancy based on seniority (continuous service date) within 30 days of the vacancy. This process will be reviewed by Local 5112. [20] The Employer relies upon Ontario Public Service Employees Union (Kolmann) v Ontario (Community Safety and Correctional Services), 2018 CanLII 102762 (ON GSB) (Abramsky) as authority for the proposition that where an agreement provides that disputes are to be referred to the MERC for resolution, there is no recourse to arbitration. I do not agree that Kolmann is authority for that proposition. In Kolmann, Arbitrator Abramsky assumed jurisdiction to determine that there was no breach of an agreement relating to the use of video surveillance in the workplace set out in an appendix to the Correctional -6- Bargaining Unit Collective Agreement. Having done so, she then concluded her decision by observing: I note, however, that the last sentence of Appendix COR10 states: “Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution.” The Union may have some legitimate points that in a WSIA investigation, both parties would benefit from a review of the tapes. In this case, the Grievor was adamant that an accident occurred which caused her significant injury. She disputed the Employer’s summary which found that nothing could be seen. The parties, through the appropriate MERC, should explore whether video surveillance should be provided to employees in these limited circumstances. That is, the provision in the agreement providing for the referral of disputes to the MERC gave rise to an additional forum for discussion and resolution of disputes, not one which displaced the jurisdiction of the arbitrator. [21] For all of the foregoing reasons, I do not accept the Employer’s argument that section 28 of the CWWA serves to remove access to arbitration with respect to a dispute arising from section 10 of the CWWA. [22] I turn now to the Employer’s argument that in any event the assignment of posts falls within management rights and therefore is not subject to arbitral review and further that section 10 of the CWWA does not constitute a fetter on management rights. [23] It is important to note at the outset that section 10 governs only the assignment of a post. Post selection is relevant primarily to the hours a CO is scheduled to work: see section 13. It does not govern the work a CO may be assigned to do on a given day: see section 25 which expressly reserves the right of the Employer to “assign work”. [24] In support of its argument that the CWWA in general, and section 10 in particular, does not constitute a fetter on management rights, the Employer relies primarily upon the discussion of arbitrability of the exercise of management rights in three cases. [25] In Ontario Public Service Employees Union (Sutherland) v. Ontario (Labour), 2008 CanLII 70535 (ON GSB) (Dissanayake), occupational health and safety inspectors based in the Employer’s Kitchener-Waterloo, Mississauga and London offices grieved the Employer’s refusal to enter into compressed workweek agreements covering their offices. The collective agreement permitted the -7- Employer to negotiate local compressed workweek agreements but did not require it to do so. The Employer had negotiated local compressed workweek agreements covering other offices. The grievance was dismissed. Arbitrator Dissanayake noted the decision not to negotiate a CWW agreement was an exercise of management rights. [26] In Ontario Public Service Employees Union (Dobroff et al.) v. Ontario (Environment), 2008 CanLII 19779 (ON GSB) (Dissanayake), the issue again was about the exercise of management rights under Article 3.1 of the collective agreement with respect to the assignment of work. [27] Ontario Public Service Employees Union (Union) v Ontario (Community Safety and Correctional Services), 2012 CanLII 29894 (ON GSB) (Harris) is concerned with a decision by the Employer to withdraw from local agreements providing for compensatory time off in lieu of pay for overtime worked. The decision affirmed that the decision to withdraw from such agreements was a matter within the discretion of the Employer under the management rights clause. [28] I do not find these cases to be of assistance. The issue before me is not whether the Employer was entitled to exercise its discretion under management rights and decline to enter into a CWW agreement with the Union Local covering TSDC: the Employer decided to exercise its discretion to do so. Further, the issue is not whether the Employer is entitled to exercise its discretion to withdraw from the CWW Agreement: the Employer has not purported to do so. Rather, the issue is the Employer’s failure to comply with the terms of the CWW agreement it reached with the Union Local while that agreement is in place. [29] Do the terms of the CWWA, and specifically section 10, constitute a fetter on management rights? There is no dispute that the CWWA was negotiated pursuant to Article 16.1 of the Central Collective Agreement. That Article reads: It is agreed that all ministries may enter into local and ministry employee relations negotiations such that are appropriate as not being excluded by the provisions of the Crown Employees Collective Bargaining Act, 1993. Such negotiations shall not be subject to the mediation and arbitration procedures under the Act, provided however, that nothing shall preclude a grievance alleging a violation of the Central Collective Agreement, as provided in the said Act. [30] The last sentence of Article 16.1 provides the “negotiations” of a local agreement are not subject to the mediation and arbitration procedures under CECBA. There is nothing, however, stating any local agreement which is reached is not subject -8- to mediation or arbitration. Indeed, in my view, Article 16.1 must contemplate the opposite. What would be the point of providing for the negotiation of an agreement under Article 16.1 if the Employer was free to ignore the terms of the agreement reached? Giving notice of termination of the agreement does not constitute a remedy for a breach prior to termination. Accordingly, I reject the Employer’s argument that the CWWA does not constitute a limit on its management rights with respect to the assignment of posts. [31] In this respect, I note Ontario Public Service Employees Union (Pinkney et al) v. Ontario (Solicitor General) (Petryshen), 2019 CanLII 97259 (ON GSB) is a decision concerned with whether or not the Employer had breached the terms of a CWW agreement applicable to the Elgin Middlesex Detention Centre. There is no suggestion in that decision that the terms of the agreement were not arbitrable or did not constitute a constraint on the exercise of management rights. In fairness, as pointed out by the Employer in this case, there is also no suggestion those arguments were made and further it is not clear whether the agreement in that case contained anything similar to sections 25 to 28 of the CWWA. [32] The Employer argues that in any event the assignment of overtime is also a matter of management rights. It relies on Ontario Public Service Employees Union (Conry) v. Ontario (Community Safety and Correctional Services), 2018 CanLII 55863 (ON GSB) (Williamson), OPSEU (Mills) v. Ontario (Transportation), GSB Decision No. 112/89 (Low) and OLBEU (Cruz) v. Ontario (Correctional Services), GSB Decision No. 1735/86 (Draper). [33] I do not find these cases to be of assistance. These were all cases holding that the determination of whether overtime is required is a matter which falls within the discretion of the Employer in the exercise of its management rights. In this case, there is no question the Employer determined that overtime was required: other COs worked it. The issue in this case is whether the Grievor lost the opportunity to work that available overtime because of the Employer’s failure to comply with section 10 of the CWWA. If so, he is entitled to be compensated for that loss: OPSEU (Boucher) v. Ontario (Correctional Services), GSB Decision No. 465/81 and 76/82 (Verity). [34] There is no dispute that during the relevant period of time there was so much overtime at TSDC that if a CO made him or herself available, they would be assigned a shift. -9- [35] During the relevant period of time, as a result of being assigned to the Admitting and Discharge post, the Grievor had 101 regular days off (“RDOs”). On these RDOs, he was available for and worked an additional 70 shifts as overtime. Had he been placed on the schedule for the Health Care/Infirmary post during that period he would have had 130 RDOs. The difference is 29 RDOs. The Grievor claims as a result he is entitled to 29 additional shifts of overtime. [36] This claim assumes the Grievor would have made himself available for overtime on all additional RDOs if placed in the Health Care/Infirmary post. As conceded by counsel for the Union during argument, some discounting should be applied to reflect the fact that the Grievor did not make himself available for all of his RDOs while in the Admitting and Discharge Post. I note that the Grievor made himself available for 70% of those RDOs. I would apply the same discount rate to any additional RDOs which would have arisen had the Grievor been placed on the schedule for the Health Care / Infirmary post. [37] The Employer’s written representations include the following statement: 40. The Employer disputes that a position in Health Care/Infirmary would have resulted in fewer shifts. The Grievor’s accommodation requirements do not align with clinic hours and the department’s operational requirements and so the Grievor would likely have to be posted elsewhere or if he had worked in Health Care/Infirmary, he may have been required to work additional shifts based on his accommodation requirements and shift schedule modifications. [38] The statement that the Grievor’s accommodation requirements do not align with clinic hours and operational needs is factual. The degree to which this would have resulted in his being posted elsewhere or working additional shifts in order to make up his regular hours (thereby reducing the number of RDOs available to work additional overtime shifts) is uncertain. However, some further discounting of the 29 “additional” RDOs arising from a simple comparison of the shifts worked by the Grievor in the Admitting and Discharge post and the schedule of the Health Care/Infirmary post is required. [39] The Union’s assertion that a 12 hour overtime shift was the “most common shift length” was unchallenged. Further, I note the Union’s evidence was the Grievor worked 1,037.24 hours of overtime during the relevant period while assigned to Admitting and Discharge. This suggests the average length of the overtime shifts he worked was: 1,037.24 / 70 = 14.81 hours. The 12 hours of work per additional shift of overtime claimed by the Union is therefore a reasonable number. -10- [40] I remit to the parties the question of how much compensation, if any, the Grievor is entitled to receive for lost overtime opportunities as a result of the failure to comply with section 10 of the CWWA. The preceding paragraphs are intended to assist them in their discussions. I retain jurisdiction should they be unable to resolve that issue. [41] The Employer argues that if the Grievor lost the opportunity to work overtime because of the failure of the Employer to comply with section 10 of the CWWA, responsibility lies in part with the Union. In this respect it relies upon the last sentence of section 10, which provides the process under section 10 “will be reviewed by Local 5112.” The parties agreed this issue would be addressed at a later date if necessary. Accordingly, I also remit this issue to the parties, and retain jurisdiction should they be unable to resolve it. [42] The Union’s alternative claim is that the Grievor is entitled to damages for the cost of commuting to and from work in relation to the 29 additional regular shifts worked in Admitting and Discharge compared to the regular shifts scheduled in Health Care / Infirmary. This claim, the Union concedes, would be reduced to the extent the Grievor is deemed to have worked overtime on any of those shifts. The Union argues this loss was reasonably foreseeable as a result of the breach of section 10 and is therefore compensable. [43] I do not agree. Damages in contract are paid for losses which were within the reasonable contemplation of the parties at the time they entered into the contract. The CWWA related to 675 regular CO positions to be filled at TSDC: see section 11. Who those COs would be was unknown. There is nothing to suggest that the individual choice as to where to live by any of those COs was within the reasonable contemplation of the parties. Accordingly, the alternative claim is dismissed. [44] Finally, I note the Union argued that any agreement reached between the Union and the Employer is subject to arbitration. Given my conclusions stated above, I need not address that argument. For clarity, I would note, however, that my decision is not based on that premise. Rather, my decision is based upon the fact the agreement in question was reached pursuant to Article 16.1 of the Central Collective Agreement. -11- [45] In summary, the grievances are allowed. The question of whether any damages are payable to the Grievor as a result is remitted to the parties. I remain seized should they be unable to resolve that issue. Dated at Toronto, Ontario this 18th day of December, 2019. “Ian Anderson” ______________________ Ian Anderson, Arbitrator -12- MEMORANDUM OF UNDERSTANDING BETWEEN THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES (Toronto South Detention Centre) AND THE ONTARIO PUBLIC SERVICE EMPLOYEE UNION (LOCAL 5112) RE: COMPRESSED WORK WEEK SCHEDULES, VACATION PROTOCOL, AND POST SELECTION PROCESS FOR CORRECTIONAL OFFICERS ASSIGNED TO THE TORONTO SOUTH DETENTION CENTRE. This compressed work week agreement is made in accordance with Article 16 (Local and Ministry Negotiations) of the Central Collective Agreement and Article COR2 (Hours of Work) of the Correctional Bargaining Unit Collective Agreement, between the Ontario Public Service Employees Union and the Crown in right of Ontario, represented by Management Board of Cabinet. Whereas the parties are desirous of ensuring that staffing needs are met And whereas it is the mutual goal of the parties to deliver a smooth transition of the Toronto South Detention Centre commissioning, recognising the importance of a cohesive and respectful labour relations environment. Unless otherwise specified in the Agreement, all articles of the Central and Correctional Bargaining Unit Agreements apply to employees covered by this agreement. 1. All approved Correctional Officer compressed workweek schedules for the institution shall end on Sunday January 26, 2014 and new approved schedules shall take effect on Monday January 27, 2014. 2. Approved schedules shall be posted by December 19, 2013 3. OPSEU Local 5112 shall notify the employer of the results of the Local vote on TSDC compressed work week schedules, which will take place at OPSEU local 517, and 5112 on January 02 and 03, 2014. 4. Platoon (Area schedules) selection forms shall be submitted to the scheduling department and shall be accepted until January 10, 2014. 5. Post selection shall be done based on seniority (continuous service dates). Best efforts will be made to accommodate line selection requests. 6. Notices to Correctional Officers of post assignments shall be distributed no later than January 13, 2014. -13- 7. All correctional officer positions shall be available for line selections with the following exceptions: a) The three (3) Correctional Officer Bargaining Unit Scheduling Assistant positions which will continue to be filled according to the HPRO agreement. b) The ten (10) Correctional Officer Institutional Security Team positions which will be filled through an expression of interest by the TSDC and in consultation with local 5112. c) The ten (10) program Department/Correctional Officer positions which will be filled through and expression of interest by the TSDC and in consultation with local 5112. d) The twelve (12) Correctional Officer Community Escort positions which require Correctional Officers to be Community Escort trained. 8. Those failing to make a selection will be assigned a platoon and post schedule by the Scheduling Manager. 9. Local 5112 shall review the Platoon and Post selection process. 10. When permanent vacancies occur in the compressed work week schedule, efforts will be made to fill the vacancy within 14 days of the permanent vacancy as per the post selection form submitted as per number 4 above. Efforts will be made to fill the vacancy based on seniority (continuous service date) within 30 days of the vacancy. This process shall be reviewed by Local 5112. 11. This agreement and the attached schedule is based on the Budget Allocation Model (BAM) of Six Hundred and Seventy Five (675) Regular (classified) Correctional Officer positions at the Toronto South Detention Center, when fully open and fully operational. 12. This agreement does not prejudice the parties in any way in relation to the total level of Correctional Officer positions at the Toronto South Detention Centre. 13. Correctional Officers will follow the schedule of the post to which they are assigned unless otherwise precluded. (e.g. If selected for a temporary assignment correctional officers will follow the Temporary Assignment schedule regardless of the Post Pick). 14. Each 12 hour or 8 hour shift will contain one thirty (30) minute unpaid meal break. Each 12 hour shift will contain two fifteen (15) minute paid rest periods. These fifteen (15) minute paid rest periods may be taken as a second paid meal break for the 12 hour shift. Each 8 hour shift will contain one fifteen (15) minute paid rest period. 15. The attached schedules (Appendix A) shall be a rotating shift schedule. -14- 16. Should a lateral transfer be accepted at Toronto South Detention Centre, the lateral will go into an existing vacant line. 17. Correctional Officers interested in working temporary lines must submit a letter of interest to the Scheduling Manager. As temporary lines become available, Correctional Officers that have submitted letters of interest will be offered these lines according to seniority (continuous service date). 18. The two parties will jointly review the schedules following four months in an effort to enhance schedules, reflect changes to operational needs, etc. 19. PLATOON AND POST SELECTION PROCESS FORM a) Indicate the order from one (1) to sixteen (16) of the area schedule of preference. (see attached Appendix B form) b) Platoon Selection picks will be assigned based on seniority and all Regular (classified) Correctional Officers will make their selection noting first, second, third, fourth and fifth etc. c) Correctional Officers currently in temporary assignments must submit schedule picks. d) Those failing to make a selection will be assigned a platoon schedule and post by the Scheduling Manager. 20. Annual Vacation Selection Process a) Annual vacation selection shall be based on the principle of seniority and will be done in “rounds” of selection consisting of a two (2) week selection opportunity. Weeks will be considered as Mondays to Sundays inclusive. One day in a week would constitute a “week” during the two (2) week selection process. b) Vacation selection for the year 2014, will begin with the first set of picks starting on Monday, January 27, 2014, based on the number of regular Correctional Officers assigned at the TSDC as of January 20, 2014. c) There shall be enough “rounds” in order that each Correctional Officer shall have had the opportunity to use their annual vacation credit entitlement. d) A group selection format shall be used. Each group will be given seven (7) days to select and submit their picks. In the event that none of the vacation choices are available, the Scheduling Office will contact the individual, who will then have 24 hours within which to resubmit vacation selections. e) Vacation selections must be done in writing, by email, or use of the vacation selection form. (see attached Appendix C). In the event that an -15- individual cannot complete a written request during their allotted dates, a telephone “pick” may be left with the Scheduling Office (ext. 1108) (within the allotted times), to be followed up in writing within twenty-four (24) hours. f) Weeks/Daily Hours available for vacation selection will be posted on HPRO. Vacation hours determine as to how many staff shall be off each day. g) After the completion of the group selection format, individual [illegible word] selections may take place on a regular basis. In the event of multiple submissions for the same dates(s), on any given day, seniority shall be the guiding factor in vacation requests approvals. h) The Scheduling Office may be contacted in the event individuals are unable to ascertain vacation availability on their own. i) All reasonable attempts will be made to resolve any disputes should they occur. RE: Backfilling of Posts on the Master Schedule The parties agree to the following understanding relating to backfilling of Posts on the Toronto South Detention Centre Compressed Work Week Agreement schedule. (see Appendix A) 21. This backfill agreement, and the attached schedules, is based on the following identified correctional officer positions at the TSDC worksite: a) This agreement and the attached schedules is based on the Budget Allocation Model (BAM) of Six Hundred and Seventy Five (675) Regular (classified) correctional officer positions at the Toronto South Detention Center, when fully open and fully operational. b) The Employer shall notify the local executive committee of any operational changes, which shall have impact on the daily operational routine, and daily staffing compliment. c) Any significant changes to the staffing compliment shall trigger a review of the Compressed Work Week Agreement. 22. When the Employer does not hire an additional Correctional officer under section 21; the Employer will advise and discuss, both the reasons and potential future alternative hiring plans with a local union executive. In the event of a dispute between the parties at this time, sections 27, 28 shall apply. 23. If it is deemed to be necessary by the Employer to fill the specific post then the Employer will: a) determine if a scheduled Correctional Officer can be reassigned to a vacant post on the master schedule; or -16- b) if none available, hire a fixed- term Correctional Officer and assign him/her to work the vacant post or another post on the master schedule; or c) if none available, hire a regular Correctional Officer to work and assign him/her to work the vacant post or another post on the master schedule. 24. When a Correctional Officer is hired under 23, (b) or (c) above, existing local protocols for the hiring of fixed-term staff and/or the provincial HPRO protocol will apply. 25. The Employer maintains its management rights under Article 2 of the Collective Agreement and the parties agree that this agreement does not fetter the employer’s right in any way to assign work or hire any number of staff as may be operationally required. 26. The Union maintains full rights and entitlements of the collective agreement specifically but not exclusively Article 9, Article 22, Article 16 and COR2. 27. The parties agree and commit that staffing schedules and any concerns regarding staffing should first be discussed at the Local Employee Relations Committee. 28. The parties agree that disputes arising out of staffing decisions from this agreement will be referred to the MERC employer and union Co-Chairs for resolution. 29. Either party may, on written notice of 90 days to the other party, terminate this Memorandum of Understanding. Dated the 17 day of December 2013. For the Ontario Public Service For the Ministry of Community Employees Employees Union Safety and Correctional Services