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HomeMy WebLinkAboutHunter/West 10-12-27 IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION BETWEEN: COLLEGES OF APPLIED ARTS AND TECHNOLOGY (Algonquin College) ("the Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the Union") COMPLAINTS OF NEIL HUNTER AND PAUL WEST AWARD ARBITRATOR: BARRY STEPHENS FOR THE EMPLOYER: PETER MCKERACHER AND OTHERS FOR THE UNION: JP LAMARCHE AND OTHERS Hearing held in Ottawa, Ontario, on December 10, 2010 AWARD FACTS [1) The two complainants work as teachers in the Animation Department. Both have worked as coordinators within the department Mr. West for ten years and ML Hunter for more than seven years. Both were originally assigned to act as coordinators for the Fall 10 semester. However, both were called to a meeting with the employer on October 7, 2010 and advised that the College had decided to remove them from the coordinator positions and terminate the premium that goes along with the assignment The change was made effective October 18, 201 o~ New coordinators were appointed to replace both complainants. The complainants seek payment of the coordinator allowance for the entire semester in recognition of the work they performed up to the point when they were removed from the position. Union Submissions [2] The union argues that the employer's actions contravened Art. 11.02 A 1 A, which requires uconsultatlon" before a SWF is amended. In addition, the union argues that the complainants were owed compensation because many of the tasks they performed involved planning for the future and that created outcomes that benefitted the department after they were removed. including during the remainder of the Fall 10 semester. In this regardJ the complainants provided detail about the tasks they have undertaken as coordinators) and the employer did not take issue with those details. The complainants also suggested that they worked hours beyond those required by the SWF's~ The union argued that the two complainants were entitled to payment of the coordinator's premium throughout the entire Fall 10 semester in recognition of the work they performed up to the point when they were removed from the coordinator's status. Employer Submissions [3] The employer responds that the complainants were properly notified about the termination of their coordinator duties, and that the amendment to the SWFJs was carried out properly. The employer further argues thatJ although there was no dispute the complainants had performed the work in question, the unionJs arguments arose from the complainants' status as coordinators under Article 14, which is outside the jurisdiction of the WRA. The employer also submitted that the planning and work of coordinators normally precedes the implementation of objectives or projects, but teachers are paid for the hours worked not the outcomes. Decision [4] The complainants raise two issues. First. they allege there was no proper consultation about the change to their SWF's. Second, they submit that they completed sufficient work prior to being removed as coordinators that they should be paid the coordinators allowance for the entire Fall 201 0 semester~ 2 [5] Turning to the first issueJ I have little evidence to go on with respect to the "consultation", save that a meeting was held between the employer and the complainants on October 7. The union asserted that there was no consultation but that the employer had made the decision) and had essentially called the meeting to issue a "command" to implement the decision. The complainants did not refer to the meeting in their comments during the WRA hearing. [6] The onus is on the union to demonstrate that the employer failed to provide consuftationa The requirement for consultation generally means that the employer must provide an opportunity for input from the teacher prior to making a change to the SWFI Holding a meeting with the teacher prior to the implementation of the change is evidence of such an opportunity. Since it is the employer's initiative to ma~e a change, it is to be expected that the employer might attend such a meeting with a plan as to what the change will bet Consultation does not require that the employer abandon or amend its plan~ In these clrcumstancesJ I find the opportunity for consultation was provided as required by the collective agreement, and that part of the complaint is dismissed. [7] The second issue, and the main argument put forth by the union, was that the complainants had performed sufficient coordinator duties to qualify for payment of the coordinator's allowance for the entire Fall 201 0 semester~ In my view~ this claim must be dismissed. 3 [8] Fi rst it shou Id be stated that it is gene rally true that com pensation is paid for the hours of work performed, not for the outcomes of the work performed. Work is often performed in the present, such as the preparation for a conference, which may not bear fruit until weeks or months in the future. This is a normal feature of many if not most jobs. The fact that the work performed may not actually lead to any benefit to the department until some future date. however, does not affect compensation. The employer pays the employee for his or her hours of work on the job, not for or at the time of the outcomes arising from the work. [9] Moreover, I agree with the employer's main submission that Art. 14.03 A3 determines the amount and duration of compensation for coordinator duties, as follows: Those em ployees who are deslgna ted as coo rdin ators will rece ive a n allowance equal to one or two steps on the appropriate salary schedule. Such allowance will be in addition to the individual's annual base salary. [10] This clause must be read to mean that the person in the coordinator's position receives the allowance for such period' of time that he or she is actually "designated" in the coordinator's position. I n other words, the allowance commences when the teacher is "designated as coordinatorJJ and terminates once the teacher is no longer UdesignatedU as coordinator. [llJ The remedy claimed by the unIon cannot be successfU1 given that Art. 14.03 A3 does not allow for any room to manoeuver. In Art. 14.03 A3 the parties 4 have agreed on a specific formula for coordinator compensation) and there is no flexibility in the formula for the WRA to vary the application of the allowance~ The allowance is either one or two steps on the salary schedulet (Neither party made submission about the import of the uone or twoU step option.) It is to be paid when the individual is UdesignatedU in the position. If I were to order that the allowance should be extended beyond the time the complainants were "designated" in the position) I would be varying the terms of the collective agreement, something I am clearly not empowered to do. [12] As a result, it is my view that I do not have the jurisdiction to grant the remedy sought by the union. I wish to add that none of the above reflects upon the two complainants, who both have considerable experience and evinced a strong commitment to their work. l13] Given all of the above, the complaints must be dismissed. Barry Stepha J Workload Resolution Arbitrator December 27, 2010 L 'I 5