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HomeMy WebLinkAbout1993-1948.O'Brien.01-06-06 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT 'l1li__11'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (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 Ontario Public Service Employees Union (O'Brien) Grievor -and- The Crown In Right of Ontario (Ministry of Correctional Services) Employer BEFORE Deborah J D Leighton Vice-Chair FOR THE GRIEVOR Tim Hadwen Counsel Ontario Public Service Employees Union FOR THE EMPLOYER Len Marvy Counsel Legal Services Branch Management Board Secretariat HEARING October 13, 2000 and March 21, 2001 Introduction ThIS IS the fourth decIsIOn made pursuant to the Mmutes of Settlement, dated March 13,2000 agreed to by the partIes to finahse the outstandmg Issues relatmg to the ImplementatIOn of the Memorandum of Settlement, made on order of the board on August 1, 1995 (the O'Bnen award) The partIes recognIsed m the ongmal decIsIOn made on consent that m order to elllnmate sexual harassment and dlscnmmatIOn m the Mmlstry a systemIc approach was reqUIred. To that end they have developed a SystemIc Change Programme, desIgned to elllnmate workplace barrIers to women correctIOnal officers As part of that programme the partIes specIfically agreed to Implement "a speedy and effectIve resolutIOn of dlscnmmatIOn complamts" Pursuant to thIS agreement the partIes have Jomtly developed a detailed mediatIOn process The subject of tlllS decIsIOn IS what compensatIOn, If any, should be paid to mediators The Union's Position It IS the UnIon's posItIOn that medIators should be compensated at the wage rate of the Human RIghts Officer II classIficatIOn, wIllIe they are workmg as medIators Accordmg to the UnIon's submIssIOn there IS a precedent for ItS posItIOn As an earher part of the SystemIc Change Programme, one-day trammg seSSIOns on human nghts were conducted by faclhtators (management and unIon) m every workplace m the Mmlstry These faclhtators worked full tIme for nme months The partIes agreed to pay the faclhtators on the basIs of the bargammg UnIt posItIOn that was most like the work that they were domg, that of InfonnatIOn Officer III The salary of InformatIOn Office III was paid to all faclhtators, except those who were makmg more m theIr home posItIOn In the UnIon's submIssIOn the posItIOn of Human RIghts Officer II IS the most like the posItIOn of medIator and therefore correctIOns officers actmg as 2 medIators should be paid accordmgly Counsel for the UnIon argued that It IS Important that the posItIOn of mediator be respected. Further employees should be gIven an mcentIve to take on the responsibIhty of the posItIOn Failure to adequately compensate mediators may result m skIlled, talented people not partIcIpatmg m the program In sum, Counsel argued that the separate rate for all medIators would sIgnal respect for the posItIOn and support the prmcIple that each medIator was valued equally for work done as mediators The Employer's Position It IS the Employer's posItIOn that all medIators selected for the SystemIc Change Programme should be paid at theIr regular rate of pay In the Employer's submIssIOn, the work as medIator IS a "duty assIgnment" The partIes have agreed that mediators wIll work on an ad hoc, as needed basIs They would be neIther part nor full-tIme posItIOns Counsel for the Employer argued that the facIhtator's sItuatIOn was completely dIfferent, smce they were workmg full tIme on thIS special project Counsel also argued that the questIOn of compensatIOn for mediators IS beyond the scope of the ongmal award, and therefore not arbItrable In the Mmutes of Settlement of March 13,2000 the Employer reserved ItS nght to object to the board's jUnSdIctIOn m tlllS matter, should the matter ultImately reqUIre arbItratIOn Counsel argued that nothmg m the ongmal award supports an mterpretatIOn that mediators be paid more for theIr work as mediators, and what the UnIon was askmg for was that the board amend the collectIve agreement as It pertams to duty assIgnments Counsel argued that the UnIon was askmg the board for "an mterest arbItratIOn" and that thIS result could not have been the mtentIOn of the partIes m agreemg to the O'Bnen award. 3 Counsel submItted that the board's JunsdIctIOn flows from the March 13, 2000 mmutes of settlement that reqUIres the board to mterpret the O'Bnen award. In Counsel's submIssIOn no reasonable mterpretatIOn of the 0 'Bnen award leads to the conclusIOn that the partIes agreed to a new way to pay for duty assIgnments Further, Counsel argued that there are strong polIcy reasons to pay medIators for theIr work as a duty assIgnment It would be consIstent WIth past practIce CorrectIOnal officers act on an ad hoc basIs m, for example, InstItutIOnal CnsIs InterventIOns Teams, Cell ExtractIOn Teams, as Hostage NegotIators and as W.D.H.P AdvIsors When actmg m these roles they are paid at theIr regular rate of pay ThIS mterpretatIOn IS also consIstent WIth the collectIve agreement whIch, at Art 8 1 1 provIdes Where an employee IS assIgned temporanly to perform the dutIes of a posItIOn m a classIficatIOn wIth a hIgher salary maXImum for a penod m excess of five ( 5) consecutIve days, he or she wIll be paid actmg pay from the day he or she commenced to perform the dutIes of the hIgher classIficatIOn m accordance wIth the hIgher rate m the hIgher classIficatIOn provIded that where such a change results m an mcrease of less than three percent, he or she shall receIve the next hIgher salary rate agam (emphasIs added) It was the Employer's submIssIOn on thIS that It IS not the employer's posItIOn that an OPSEU mediator who may work m excess of five consecutIve days (whIch would be extremely unlikely, If at all) would necessanly be entItled to the nghts under artIcle 8 1 1 (thIS would have to be determmed on the specIfic facts of the sItuatIOn), the artIcle clearly and explIcItly sets out a threshold (m excess of five consecutIve days) whIch the partIes have bargamed for, whIch must be met before any 4 "actmg pay" at a hIgher rate would be paid. The umon's proposal flIes dIrectly m the face of past practIce and the collectIve agreement The Employer also took the posItIOn that paymg mediators at dIfferent rates was consIstent WIth the marketplace and would not dIscourage good apphcants It would also be a sIgmficant admmlstratIve challenge to Implement the Umon's proposal The Union's Reply Argument The Umon argued m reply that systemIc change m the Mmlstry would not be accomphshed by treatmg medIatIOn as a duty assIgnment Counsel argued that there IS nothmg m the O'Bnen award that hmlts compensatIOn for mediators At the tune of tlllS settlement the partIes had not decIded on a conflIct resolutIOn system whIch rehed on bargammg umt mediators Counsel also argued that ArtIcle 8 1 1 of the collectIve agreement between the partIes does not apply to the work of mediators the work of mediatIOn IS not an assIgnment that anses out of the employee's workplace dutIes The role of the medIator anses from the Jomt Umon-Management mltIatIve, whIch resulted m the SystemIc Change Programme, and more specIfically the "MediatIOn Model" As a result, Counsel argued the board's authonty IS not fettered by the duty assIgnment language m the collectIve agreement In the alternatIve, Counsel argued that the board has the power to amend a collectIve agreement when there has been a breach of the Human RIghts Code R.S 0 1990, c.H 19 (as aInended) Counsel cIted Board of School Trustees, School Dlstnct No 23 (Central Okanagan) et al v Renaud et al (1993) 95 D.L.R. (4th) 577 (SCC) and Re Board of Governors of the Umverslty of Ottawa and ASSOCiatIOn of Professors of the Umverslty of Ottawa, 85 L.A.C (4th) 214 (Adams) 5 Counsel specIfically addressed the role of WDHP AdvIsor argumg that It was a voluntary posItIOn WIth no specIfic expenence, skIll or abIhty reqUIred. The role IS done largely on the telephone, and IS mfrequent Counsel concluded by argumg that all mternal mediators should be paid the same rate m part to be fair and m part so they are all accorded the same respect He argued that the pay admmIstratIOn Issue dId not JustIfy denymg mediators compensatIOn And finally appropnate compensatIOn was the best way to guarantee appropnate apphcants, who must engage m systemIc change from wIthm the MmIstry Decision The partIes have agreed to Implement a peer mediatIOn model as part of the conflIct resolutIOn protocol of the SystemIc Change Programme m the MmIstry Quahfied candIdates wIll be selected and appomted accordmg to regIOnal needs All employees wIthm the MmIstry are ehgible to apply to be peer medIators The partIes have agreed that the appomted medIators wIll work on an ad hoc, as needed, basIs and that the assIgnment to the hst IS not a full or part-tIme posItIOn The assIgnments are to be for three years, wIth a reVIew m the second year MediatIOn IS aVailable for partIes allegmg dIscnmmatIOn harassment on both prohibIted grounds under the Code and "non-grounds based conflIcts" (see p 24 MediatIOn Model) Peer medIators wIll be gIven trammg to develop the skIlls of a medIator When they work as mediators any travel costs and expenses wIll be reImbursed. The Issue before me IS whether the peer mediators should receIve special compensatIOn, over and above theIr regular pay, when they work as mediators The onus here IS on the Umon WhIle there IS nothmg m the O'Bnen Award that 6 prohibIts compensatIOn, there IS also nothmg m the award that reqUIres It The first reason gIven by the UnIon to pay mediators was that facIlItators provIded a precedent of how the partIes have paid those who work wItlun the SystemIc Change Programme FacIlItators were paid the rate of a comparable posItIOn -- InformatIOn Officer III However, facIlItators worked full-tIme m theIr posItIOns The peer mediators are to work on an ad hoc basIs Thus, tlus ratIOnale IS not persuasIve The second ratIOnale for paymg medIators m addItIon to theIr regular salary IS that the role of mediator should be vIewed as a desIrable and respected posItIOn The UnIon IS concerned that the result of failIng to properly compensate the posItIOn could mean the loss of skIlled and talented people There IS no eVIdence before me to suggest that the partIes wIll have dIfficulty recnlltmg peer mediators for tlus special assIgnment There IS no reason or eVIdence whIch supports a conclusIOn that peer mediators wIll not be respected If they are not specially compensated. Indeed the successful applIcant wIll receIve special trammg m medIatIOn skIlls and have the opportUnIty to gam expenence m a field that IS becommg more and more respected wItlun our socIety I am therefore not convmced by the reasons gIven by the UnIon that pay over and above the normal pay rate IS reqUIred to attract applIcants or to ensure that they are respected. Further, I am persuaded that the ad hoc nature of the work as a mediator IS more properly vIewed as a duty assIgnment Employees workmg on a duty assIgnment are not paid above theIr nonnal rate of pay Thus, after careful consIderatIOn of the submIssIOns of the partIes, I find that I am not persuaded that mediators m the SystemIc Change Programme should be paid at the rate of Human RIghts Officer II when medIatmg Havmg decIded that the UnIon's argument does not support an order of thIS board that peer mediators 7 should receIve such compensatIOn for work as medIators, I do not need to address the Employer's JUrISdIctIOnal argument Dated at Toronto, tlllS 6th day of June, 2001 Deborah J.D LeIghton, VIce-Chair 8