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Home My WebLink About2009-2689.Union.10-08-12 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2009-2689 UNION#2010-0999-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFOREFelicity D. Briggs Vice-Chair FOR THE UNIONStephens Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERPeter Dailleboust Ministry of Government Services Legal Services Branch Counsel HEARING March 18, July 30, 2010. - 2 - Decision [1]In the collective bargaining negotiations that took place in 2005, the parties agreed to insert a new Appendix 32 into the Collective Agreement. That provision provided for a change of status for a number of employees from fixed term to the new category of ?flexible part time? (hereinafter referred to as ?FPT?). At the outset the Employer referred to this initiative as the ?Revitalized Workforce Project? (?RWP?). As of January 1, 2008 it has been commonly known as ?Integrated Labour Relations Strategy? or ?ILRS?. [2]This change brought about many employee questions and ultimately, a number of disputes/grievances. [3]By all accounts, there were a number of areas in the initial language of Appendix 32 that required clarification. Accordingly, in an effort to continue to work together through many of the identified problem areas, the parties negotiated a series of agreements regarding the various matters needing to be addressed. Additionally, in an ongoing effort to resolve outstanding issues that continued to arise, amendments were made to Appendix 32 in the next (and now current) Collective Agreement. [4]On September 13, 2007, the parties agreed to a number of amendments in a fairly comprehensive Memorandum of Agreement. This Agreement resolved the identified disputes that had been outstanding and further recognized that future grievances might arise. In large measure, the amendments agreed upon in the September 13, 2007 Memorandum of Agreement were incorporated into Appendix 32 of the current Collective Agreement. [5]Since September of 2007, approximately two hundred grievances have been filed. In an effort to resolve these matters efficiently, the parties - 3 - worked together to create a process for the efficient litigation of all outstanding issues. To that end, a number of grievances have been heard and decided by the Board. Those decisions have resolved a number of outstanding matters. [6]Given the passage of time and the number of grievances that had yet to be determined, the parties agreed that it was in their collective interest to further streamline the litigation process. In considering various options, it was agreed to investigate the possibility of adopting a process similar to that utilized by the Union and the Ministry of Community Safety and Correctional Services regarding ?transition grievances?. Those grievances, which were many hundred in number, were filed as the result of the major re-organization within that Ministry. Given my experience in that process my assistance was sought in this matter. [7]At our hearing held on January 18, 2010, the parties agreed to a number of issues including: All grievances outstanding as of January 18, 2010 and those o filed in the foreseeable future flowing from the interpretation, application and administration of Appendix 32 will be referred to me for determination. While it is understood that all decisions under this process will o be consistent, they are without precedent or prejudice in accordance with Article 22.16.2. I will determine the process to be followed for the litigation of o these matters. [8] The process for the litigation of the remaining grievances should be efficient and provide a timely and appropriate final resolution. In arriving at my decision in this regard, consideration was given to Article 22.16.2 which states: - 4 - The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [9] As was the case in the ?transition? process, there are a large number of grievances to determine and the parties are agreed that ?traditional arbitration? will not serve their purpose. Therefore, in accordance with my jurisdiction to so determine, these matters will be litigated on the following basis: Grievances are to be presented by way of each party presenting a statement of the facts with appropriate documents, if any, and accompanying submissions. I understand that in many cases, particulars have been provided and documents exchanged. That preparatory work should further assist efficiency. I recognize that some grievors and managerial employees may wish to attend and provide oral evidence. However, given the task at hand and the time by which to do it, I order only the committee members from each party will attend. It may be that in a few instances some confusion might arise regarding certain facts. It might also happen that I will find that insufficient evidence has been provided. In those instances, should they arise, I will direct the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In the event I find there is still uncertainty regarding facts, I reserve the right to ask for viva voce evidence. It is my hope that this need shall never arise. - 5 - Hopefully decisions can be issued within a relatively short period of time following submissions. My decisions will contain brief reasons and sufficient rationale so as to provide the parties with an interpretation thereby allowing them to move forward. [10] A number of grievances have been filed alleging various breaches of the Collective Agreement because ?the Employer distributes hours of work unfairly and unreasonably?, and because the Employer is not ?maintaining a consistency in the working hours between the 1000 hour and the 1500 hour FPT employees?. [11] The Union asserted scheduling should be fair. Specifically it was stated that the two categories of FPT are being treated differently in their scheduling. The result of that differential treatment is that the 1000 hour FPT employees are put into a position of earning overtime as of November of each year while the 1500 hour FPTs work only their minimum hours plus ten percent thereby earning no overtime. [12] Additionally, work is being assigned over a period of seven days for those who work bail courts while others have work assigned for only five days per week. It was suggested that those who agree to work on the weekend are being improperly advantaged in their ability to accrue overtime. The Union contended that the Employer should resort to its past practice of have a separate group of employees to do the weekend work. [13] Finally, the Union submitted that the Employer is using more fixed term employees and are ?not reducing the use of unclassified staff?. The - 6 - majority of newly hired employees are fixed term and no new FPT positions are being created. [14] The Employer denied allegations of mischief with respect to the scheduling of FPTs. It was stated that work assignments are developed taking into account the category of employee, the operational needs and the ?skill sets? of employees. Given this criteria, it might happen that some FPTs get to overage hours more quickly than others. [15] The Employer contended that there is no Collective Agreement provision that states that scheduling must be done ?fairly?. However, it is not adverse to the concept of fair scheduling but underscores that there will always be operational requirements that have to be paramount. [16] I am sympathetic to the frustrations of the grievors. Why one employee receives more hours than another might appear to be a mystery at times. However, I accept that there is a myriad of factors to take into account in the assignment of this work. I am of the view that the Employer has the right to schedule the work in accordance with its needs so long as it does not do so in a fashion that violates the Collective Agreement. I had no evidence before me that would lead me to find for the grievors. [17] For those reasons, the grievances are denied. Dated at Toronto this 12 day of August 2010. th Felicity D. Briggs, Vice-Chair