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HomeMy WebLinkAbout1984-0400.Ropars.85-07-022 400184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Andre Ropers) and Grievor The Crown in Right of Ontario (Ministry of Government Services) Employer Before: ‘For the Criwor: For the Employer: Hearing: October 16, 1984 E.B. Jolliffe, Q.C. I.J. Thomson L.R. Turtle Vice-Chairman Member Member M.I. Rotman, Counsel Barrister EC Solicitor P. Van Horne, iManager Staff Relations -2 - DECISION The'grievor, Mr..Andre Sopars, has been employed as a Translator 3 with the Ministry of Government Services. His grievance, dated apparently on March 22, 1984, was as follows: That Glenn Thompson, Deputy Minister and David Ferguson, Director of Information Services, Ministry of Government Services are not complying with the intent of Article 7.6 of the Collective Agreement, inthatthey willnotmcxlifythe hours of mrk as provided for under ti-e said Article 7.6. The settlement required was the following: That variable work hours be introduced in the Information Section, 6th Floor, Thompson Block, 77 Wellesley Street Kest, Toronto. In the collective agreement between Management Board of Cabinet and OPSEU, Article 7 sets out "the normal hours of work" for various classes of employees. A special provision appears in Article 7.6: It is understood that other arrangements regarding hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The Model agreement with respect to compressed work week arrangements is attached as Append~ix 4. Immediately after Mr. Ropars' grievance was referred to arbitration, Mr. P.D. Van Home, the Ministry's Manager, Staff Relations, gave notice of a preliminary obj.ection. His letter to Mr. N. Luczay, the Union's Grievance Officer, was as follows: On May 29, 1984, notification was received at this office, that the &xv-mentioned grievance has teen referred to the Grievance Settlement Board for arbitration. The Employer takes the position that the Board lacks jurisdiction to entertain the merits of this case. ,This view was upheld in the recent decision of the Board in O.P.S.E.U. (James GleMy) and the Crown in Right of Ontario (Ministry of Government Services) G.S.B. 317/83. Therefore if this matter is scheduled for a hearing date, please be advised that the Employer will make a preliminary objection to the Board's jurisdiction following in part the reasoning adopted in the Glenny decision. The only matter considered at the Board's hearing was the preliminary objection. The grievor did not appear but was represented by the Union's counsel, Mr. M. Rotman. Representing the employer, Mr. Van Horne submitted that the issue had already been decided by the Board in G.lenny 317/83, where the grievance arose in the same Ministry of Government Services. In substance the grievance made the same claim as is made in this case and the preliminary objection to jurisdiction was upheld by the Board, Vice-Chairman Roberts and Messrs. Craven and Coupey being the panel. After quoting Article 7.6.it was said: - 4 - The Union essentially contended that under this provision management was obligated to exercise a discretion to enter into compressed work week arrangements with the Union, and that any dispute between the parties regarding the manner of exercise of that discretion was arbitrable. It seemsto us that this contention might have been well founded if the Union's characterization of the nature of Article 7.6 were appropriate; however, it seems to us that Article 7.6, when fairly construed, falls far short of obligating management to exercise any discretion. particle 7.6seems to provide no more than a consensual framework to enable individual locals and Ministries mutually to agree to institute compressed work week arrangements. Article 7.6 does not compel an unwilling party to enter into negotiations regarding the establishment of compressed work weeks. Both parties have to be willing to take advantage of the option that Article 7.6 makes available. . . . . . The Article merely provides an option. It does not obligate either party to negotiate, let alone reach f inalagreement. Where there is no mutuality, in the sense of a desire on the part of both parties to agree withy respect to compressed work weeks, Article 7.06 of the collective agreement does not cane into play. We fully agree with the foregoing statements. Entirely apart from any doctrine of stare decisis or the reasons given in Bateman 2/77 for respecting previous decisions of this Board, it seems obvious to us that Article 7.6 is purely permissive and creates no obligation in either party; it merely provides an option whereby the parties, “on a local or ministry level” may by mutual agreement arrange “variable work days or variable work weeks." Thus it does not give any individual employee the right i . ,. -5- to complain that some such arrangement has not been unilaterally instituted by the Ministry. Unless the arrangement is mutually agreed upon, no obligation comes into existence. Evidence is lacking that the grievor or any of his fellow-employees in Information Services have ever had the benefit of a mutual agreement "modifying" their hours of work. For the reasons aforesaid, this Board has no juris- diction to enter into the merits of the case, if any, and the grievance must be dismissed. Dated at Toronto this 2nd day of- July, 1985 EBJ:sol I.J. Thomson - Member 2 L.R. Turtle - Member