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HomeMy WebLinkAbout1999-0105.Union.00-09-27 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILEfTELECOPIE. (416) 326-1396 GSB #0105/99 OPSEU #99U019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Employees Umon (OPSEU Gneyance) Grievor - and - The Crown 111 Right of Ontano (Management Board Secretanat) Emplover BEFORE Loretta Mikus Vice Charr FOR THE DaVId Wnght GRIEVOR Ryder Wnght BlaIr & Dovle Bamsters & SohcItors FOR THE Len M~ Counsel EMPLOYER Legal ServIces Branch Management Board SecretarIat HEARING June 22 2000 2 There are two pohcy gnevances before me mvolvmg a new Illinanve of the government to set up mformanonal kiosks m government buildings that would allow the pubhc to ask general quesnons about government or mIllistry servIces Without havmg to go to that mIllistry office personally The posInon specIficanon described Its maJor duty as follows ProvIdmg access to government InfOrmatIOn, servIces and programs from one of several mformanon counters offenng mtegrated muln-mIllistry counter servIces to the general pubhc and government chents by responding to a full range of mqUIres and/or mformanon requests regardmg government servIces, programs and resource matenals (e g. forms, brochures) through vanous sources (e g. In person, phone, email, fax, mail) These Government Informanon Centres (GICos) or Common Counters as they are referred to by the partIes, are compnsed of employees from vanous mIllistnes who, at the tIme of the gnevance, contmued, for employment purposes, to be attached the theIr home mIllistry The Ullion takes the posInon that the collecnve agreement, the Public Service Act and It regulanons are structured to provIde for an attachment to a specIfic ffillliStry for all employment purposes, mcluding promonons, discIphne and lay-off and recall. The employees m these mformanon kiosks do not fit WithIn that structure. The other gnevance deals With the alleganon that some of these common counters are bemg operated m partnershIp With pnvate Industry or other pubhc servIce enntIes such as mumcIpalInes. The first day of heanng was devoted to the exchange of documents and mformanon m the hopes that a c1anficanon of the Issues mIght facihtate settlement talks. Although thIs IS an mtenm award deahng With a specIfic Issue, It IS necessary to set out background to the dIspute m order to understand the nature of thIS prehffilnary Issue and whIch will be helpful m the event that addinonal heanng days are reqUIred on the ments. BACKGROUND In November of 1998 Ceha Fairclough, the RegIOnal DIrector of the RegIOnal Dehvery Restructunng 3 (RDR) team cIrculated a memo contaImng a gUIde to selectmg and recruITIng staff for these new pOSITIOns. ThIS gUIde set out the expectaTIons of the pOSITIOnS, wmch had been developed WIth the assIstance of the Common Counter Leads, the Management Board Human Resources Plan Group and an external consultant, and consIsted of seven competencIes, such as knowledge, skIll and behavIOur that would contribute to the Job As well there was a hst of sample quesTIons for the mteMew to ascertam whether the applIcant possessed those competencIes. In April of 1999 a memo was cIrculated by Ms. FaIrclough to the GIC Commumty Leads suggesTIng that, smce most of the GIC staff were .on board. performance contracts should be developed for each employee, ImTIated by the home mImstry but With mput from the counter supervIsor She stated, m part: In tms fiscal year the 4 RegIOnal Leads Mimstnes contmue to provIde leadersmp and mamtaIn governance of the counters for one more year Staff contmue to report to theIr home ffilmstry for personnel/human resource matters. Hence, the performance contract and performance reVIew process adhered to by the staff-s home mImstry should be followed. Input mto the process from the Site Lead concernmg responsibihty and performance at the counter should be ensured. A follow-up memo m June from GabIJa Petrauskas, the Change Management Lead for the RDR Corporate ProJect Team to Ms. FaIrclough and others confirmed a need to provIde standardizatIOn of GIC Job descnpTIons and classIficaTIon levels and contaIned the results of a survey of current Job functIons of the GIC staff that had been prepared With that goal m mmd. The survey concluded the folloWing: 1 POSITIONS In total, there are 84 customer servIce representatIves posItIons at the GICos across the prov111ce 105 of the 184 GIC customer rep posItIOns are 111 the north. The home base m111Istnes for these posItIons are MNDM and MNR. Tills accounts for 57% of the GIC front-hne posItIons across the prov111ce 2 CLASSIFICATION LEVELS Of these 184 posItIons, - 132 are OAG8 (over 72%) - 30 are OAG 9 (16%) - 7 are OAG6 (5%) - 2 are OAG 10 - 1 IS an FO 1 4 The north has the greatest 111cIdence of classIficatIon vanances. With the odd exceptIon, the other three RegIOns have classIfied theIr customer servIce representatIve pOSItIons as the OAG 8 level. 3 CLASSIFIED V S UNCLASSIFIED POSITIONS 65% or 120 pOSItIons are classIfied 30% or 55 pOSItIons are wIclassIfied There IS a mIX of classIfied and unclassIfied pOSItIons WIth111 all four regIOns. The North has the greatest number of unclassIfied pOSItIOns. 4 POSITION TITLE The most frequenth used pOSItIon tItle IS "Customer ServIce RepresentatIve" "Chent ServIces AdvIsor" IS also used, most often for pOSItIons contributed b, MNDM and MNR, closeh followed b, "InfonnatIon Access Officer" used 111 Ottawa and Peterborough. 5 FILLED V S VACANT POSITIONS A companson of filled versus unfilled pOSItIons 111dIcates that most RegIOns have filled theIr customer servIce representatIve pOSItIons. Onh a few (5) pOSItIons are still vacant. 6 CONTRACT TERMINATION DATES A surve, of contract end or tenmnatIon dates for the filled pOSItIons shows that - 53 55 % of the contracts end 111 March, 2000 - 12 8% end 111 Juh 1999 - 9.3% end 111 September 1999 Most of the contracts end111g 111 March, 2000 are 111 the North and 111 the Southwest regIOns Most of the contracts end111g 111 Juh 1999 are 111 the GT A, Southeast and a few 111 the Southwest regIOns. Most of the contracts end111g 111 September 1999 are 111 the Southwest and the Southeast regIOns. 7 MINISTRIES CONTRIBUTING STAFF In tenns of contributIons of staff to the GICs b, nll111strIes the hIghest nwnbers of staff are contributed b, MNDM, closeh followed b, MNR. Most of the staff contributed b, MNDM are 111 the North. Staff contributed b, MNR are also mosth 111 the North, but WIth a substantIal number 111 the Southeast RegIOn. The next hIghest contributors of staff to the GICs are OMAFRA, MOL, MBS MCSS and MTO The report concluded that there was httle vanatlOn m the Job classIficanons, a lligh conformIty of Job ntles and approXimately · of the contracts for GIC staffwould be endmg m March of2000 5 A subsequent staff analysIs for the GICs for 1999/2000 based on esnmates provIded by the regIOns about the mImmum FTEs that would be reqUIred, suggested that the total number ofFTE.s reqUIred by all regIOns was 134 or an average of 2 31 FTE-s per sIte, based on a total number of 58 sItes. On a regIOnal basIs It was estImated as follows. GTA- 2.25 staff for each sIte or 11.25 FTEs North- 6258 for all sItes or an average of 2.25 over 28 northern sItes. SE - 275m total or an average of 2.29 FTEs over the 12 southeastern sItes. SW- a total of 32.7 or an average of 2 52 over the 13 sItes As well, It was noted that 74 78 of the total FTEs bemg provIded were deployments and 59.25 were new posItIOns. In September of 1999 the RegIOnal Dehvery Restructunng ProJect team prepared a proJect status on the Implementanon of the GICs. It noted that the proJect connnued to be on track and that 12 pilot sItes, WIth the cooperanon of sIgmficant Inter-mImstry planmng, had developed 58 counters by March 31 1999 and that three more were bemg revIewed based on dehvery partnershIps With the local commumnes. Final agreements had been executed wIth Windsor SImcoe, Chatham and SarnIa. It was expected that agreements would be finalIzed With Kitchener and Hamilton m the near future. At the nme no decIsIon had been made about the permanent governance of these counters and MBS connnued to provIde directIon on broad human resource Issues. As part of the cooperanve exchange of documents, the Umon was provIded With several memos that gave nse to the Issue before me In partIcular a memo from Ms. FaIrclough dated January 28 2000 to Mr Len Marvy counsel for MBS, contamed the results of a recent survey shoWing that the front lme posInons were operanonal m all 57 sItes. As of January of 2000 there were 181 CSR posItIOns, 123 full-tIme posItIOns and 50 back-up or part-tIme posItIOns of whIch 123 were occupIed, and 8 were vacant. Forty-two percent of those assIgnments were to end In March 2000 Over 80 % of the posItIOns were classIfied as OAG 8 (64%) and OAG 6 (22%) Forty percent of the staff were attached to MNDM and 18% to MNR 6 MCSS and OMAFRA and other mImstnes were paymg for 8%. More sIgmficantly 34% of the pOSITIOnS were filled by compeTITIon, 38% by direct assIgnment and 21 % on a contractual basIs. POSITIOnS were advertIsed In 48% of the cases, 23% advertIsed Internally WithIn the OPS The next memo relaTIng to these matters was dated March 29 2000 and was addressed to all new MCCR staff from Sandra D Land, the Deputy Mimster of the Mimstry of Consumer and Corporate RelaTIons. She advIsed them that, effectIve April 3 2000 overall responsibihty for the GIC os across the proVInce was beIng transferred to MCCR but that the Mimstry of Northern Development and Mines would be responsible for the admImstraTIOn and operaTIon of the GIC.s located m the north. On a practIcal level, that meant that the RDR Corporate ProJect Team was transferred Immediately to MCCR, but the actual operaTIon and supervIsIon of the GICos and theIr staffwould remam the responsibihty of the local program managers and leads until the tranSITIOnal plannmg was completed. The GIC pOSITIOnS were to be filled as they expIred and contracts were to be renewed on a case by case basIs. The questIOn of a permanent management structure and funding arrangement had not been finahsed at that stage. It was thIs change m status from a temporary pilot program to a permanent program that raIsed the Umonos concerns. Mr Wnght, counsel for the Umon, argued that these GIC pOSITIOnS are now permanent bargmmng umt pOSITIOnS that must be posted and filled m accordance With the collectIve agreement. Even more sIgmficantly It contended, the Employeros failure to classIfy these pOSITIOnS as permanent bargmmng umt pOSITIOnS means that they are not available to employees who are bemg surplus sed and can be offered to unclassIfied people over classIfied employees With lay-off and recall nghts under the collectIve agreement. It asked for an ruhng that these pOSITIOnS are permanent bargmmng umt pOSITIOnS and a directIon to the partIes to deal WIth the pOSTIng reqUIrements and the surplussmg Issue If necessary Mr Marvy counsel for MBS, advIsed the Board that the partIes had made efforts to finalIze the Issues concemmg the GIC os WIth government but that, because there were so many Items on the agenda, they were asked to return on August 8 2000 to finahze the funding and permanency of the GIC os 7 It was submItted by the Umon that the Issue before thIs Board IS whether It IS permIssible under the collectIve agreement for the Employer to create and operate temporary posItIOns over a prolonged penod of tIme thereby aVOldmg the postmg reqUIrements of the collectIve agreement. It takes the pOSItIons that artIcle 6 of the collectIve agreement reqUIres the Employer to post all vacanCIes and new posItIOns m the classIfied servIce so that all OPSEU bargmmng umt members can apply for them and be consIdered. ArtIcle 8 IS entItled TEMPORARY ASSIGNMENTS but actually deals WIth how a bargmmng umt employee IS to be pmd In the event he/she IS transferred to a temporary posItIOn. It does state, however that where an employee IS assIgned to a temporary pOSItIOn, art:lcle 6 only apphes If the term of the temporary assIgnment IS more than 6 months. It IS clear that the partIes consIdered temporary pOSItIons when they negotIated the collectIve agreement and agreed that the Employer could have 6 months before It had to make up ItS mmd about the permanency of the pOSItIon. ArtIcle 20 EMPLOYMENT STABILITY sets out the bargmnmg umt members. lay-off and recall nghts and, subsectIOn 204m partIcular sets out theIr nght to bump another bargmmng umt employee If they are surplussed. All of these nghts have been demed to the Umon members because of the Employer-s refusal to desIgnate these GIC pOSItIons as permanent. ArtIcle 31 IS further proof that the partIes understood the dIfference In nature between a temporary and permanent posItIOn. They recogmsed that temporary unclassIfied pOSItIons eXisted but agreed that, If an unclassIfied pOSItIon contInued In excess of two years, that pOSItIon was to be converted to a permanent pOSItIon so long as the need for the work contInued. That art:lcle does not reqUIre the Employer to wmt the two years before convertIng a pOSItIon. If It IS clear as m the mstant case, that the dutIes of a pOSItIon are gomg to be reqUIred for a consIderable tIme m the future, the Employer IS obhged to make the pOSItIon available to bargmmng umt members. The loss to these members IS real and tangible. Employees who are bemg surplus sed are demed a bump Into a pOSItIon that could save theIr employment. The Employer-s refusal to offer these Jobs to bargmmng umt members means that the pool of available pOSItIons to bump mto IS smaller People have lost theIr Jobs who mIght otherwIse have been able to bump mto a GIC pOSItIon. Employees are also beIng demed the nght to apply for these pOSItIons under the pOStIng provIsIon 8 of the collectIve agreement, makmg theIr semonty meamngless. The Umon rehed on several cases In support of Its pOSITIOn. In the Re OPSEU and Ministry of Transportation(October 16 1998), GSB # 3094/91 dealt With posTIngs for two pOSITIOnS m Thunder Bay that were subsequently cancelled because of a lack of funding. The pOSITIOnS conTInued on the orgamsaTIonal chart but remamed unfilled. The Board did not have enough facts before It to determme whether the work conTInued to be reqUIred on a regular and ongomg basIs but commented, on page 3 as follows The test for detenllnung whether or not ArtIcle 4 of the collectIve agreement has been vIOlated IS whether or not the Employer beheves It IS necessm to fill the posItIon, and the hnchp111 111 detenllllung tlus Issue IS whether the work contmued to be done on a penllanent and on-gomg baSIS. The Umon does not senoush dIspute that the Employer has a nght to detenmne complement and to assIgn and dIstribute workload. In Re OPSEU and Ministry of Correctional Services (January 16 1991) GSB# 582/90 (Kennedy), the umon had gneved that the employer was m breach of the collecTIve agreement because of ItS failure to fill the vacanCIes at the correctIonal facihty to bnng the staff complement mime With an employer document wmch set the approved complement at 52 The employer took the pOSITIOn that the document the umon was relYIng on was outdated and mcorrect. In dismIssmg the gnevance the board stated, at page 10 There IS an addItIonal flaw m tile argument asserted b, the muon. The eXistence of an approved complement does not of Itself estabhsh the eXistence of a vacanc, The vacanc, eXIsts onh If 111 the reasonable op111IOn of the Employer the work IS reqUIred, and notIonal staffing levels are b, no means conclusIve that there eXIsts a vacant that should be filled. The Umon also rehed on the follOWing cases. Re OPSEU and Ministry of Transportation and Communications (November 7 1986) GSB# 672/87 (palmer) regarding temporary traInmg and development pOSITIOnS, Re OPSEU and Ministry of Correctional Services (March 17 1986) GSB# 498/85 (Venty) regarding failure to post a temporary vacancy created by a matennty leave, Re OPSEU and Ministry of Correctional Services (December 19 1994) GSB# 803/91 (DIssanayake) regardIng the converSIOn of unclassIfied pOSITIOnS under artIcle 3 15 1 and Re OPSEU and Ministry of Transportation and Management Board Secretariat (May 14 1997) GSB#2670/96 (RJ Roberts) regarding the Withholding of -threatened- pOSITIOnS for the purposes of bump mg. 9 In summary the Urnon submItted that these pOSITIOnS are permanent and must be filled m accordance With the terms of the collectIve agreement. The government has determIned that the GIC os are to be the responsibihty of the MCCR and the number of pOSITIOnS has been set. There IS no reason for the delay m classIfymg these pOSITIOnS and offenng them to the bargaIrnng urnt members. Mr Marvy for the Employer asserted that there has been no vIOlaTIon of the collecTIve agreement and asked that thIs aspect of the gnevance be dismIssed. The Urn on, It was Said, cannot pomt to any provIsIon of the collecTIve agreement that has been breached and has not made any allegaTIons of bad faith. Until the government decIdes about the funding to be allocated to thIs endeavour and until the classIficaTIon of these pOSITIOnS has been firmly estabhshed It cannot open them to the bargaIrnng urnt members. The Urnon has asked you to remIt these decIsIOns to the partIes but they are for the government to make, not the Umon. It was said that the provIsIons of the collecTIve agreement rehed on by the Urnon are of lIttle assIstance to thIs Board. ArtIcle 6 deals With permanent pOSITIOnS or new pOSITIOns. These pOSITIOnS are neIther at thIs stage of the process. ArtIcle 31 reqUIres the employer to convert unclassIfied posItIOns to part-TIme pOSITIOnS If the dUTIes of the pOSITIOn have conTInued for more than two years and If there IS an ongomg need for the work III the future. In thIs case It has not yet been two years and the employer IS under no obhgaTIon to convert these pOSITIOnS until then. It was said again that thIs IS an Issue ofTImmg more than anythIng else. For example, until the classificaTIon of these pOSITIOnS IS finally determmed, how can the partIes agree on who can bump mto these pOSITIOns. While the Employer acknowledged that thIS mIght be unfair to some employees, nevertheless, that, It submItted, IS not a breach of the collectIve agreement. There has been no bad faith on the Employeros part. Since the mcepTIon If the GIC os, the Employer has been open and frank about the process. There have been no secrets about the mtenTIons and development of these posItIOns. 10 In support of Its pOSITIOn the Employer rehed on the followmg cases RE OPSEU and Ministry of Transportation (November 5 1992) GSB#3094/91 (Low) Re OPSEU and Ministry of Health (March 16 1988), GSB#1439/86 (Knopf); Re OPSEU (Fox) and Ministry of Correctional Services (December 17 1990), GSB# 663/90 (M. Wnght); Re OPSEU (Radford) and Ministry of Natural Resources (June 12, 1997), GSB# 1426/96 (Knopf) and Re OPSEU and Ministry of the Attorney General (Apnl 24 1996), GSB# 1118/93 (Mikus) DECISION The facts of thIs case are not m dispute The GIC pOSITIOnS created by the government are now operaTIonal and have been SInce at least November of 1998 SInce April of 2000 the responsibIhty for the admImstraTIOn of these GIC pOSITIOnS has been assIgned to the Mimstry of Corporate and CommercIal RelaTIons. There IS no dispute that these pOSITIOnS are to become a permanent feature of the government"S servIce to the publIc, and In many are ways are so today However there are some sIgmficant aspect of these pOSITIOnS that have not yet been finalIsed, namely the funding and classIficaTIon desIgnaTIOn. Does the Employer have a contractual obhgaTIon to desIgnate these pOSITIOnS as permanent bargmmng umt pOSITIOnS now m hght of what has been finally determmed. The Employer has the exclusIve Junsdict10n to determme whether a vacancy eXists and the classIficaTIon of that pOSITIOn If It does eXISt. However It IS clear from the Junsprudence that nght IS not unfettered and IS to be exercIsed on an obJecTIve assessment of the available work. That hmItaTIOn on the Employer"S discreTIon has been specIfically expressed m artIcle 31 While the Employer can, m the first Instance, create a temporary or unclassIfied pOSITIOn, there IS a temporal hmItaTIOn on how long that pOSITIOn can eXist outsIde of the provIsIOns of the collecTIve agreement. After two years, If the need for the dutIes of the pOSITIOn conTInues, the Employer must convert It to a classIfied pOSITIOn wmch would then be subJect to the pOSTIng reqUIrements of the collectIve agreement. 11 However absent any allegaTIons of bad faIth, I fail to see any reqUIrement under the agreement for the Employer to convert an unclassIfied pOSITIOn to a classIfied pOSITIOn before that two year penod. ImphCItly artIcle 31 gIves the Employer to nght to WaIt two years until It decIdes whether It wants the dutIes of a pOSITIOn to conTInue Unless It could be shown that a delay m makmg that decIsIon was really an attempt to CIrcumvent or avoId the provIsIons of the collectIve agreement, the Employer IS enTItled to take the full two years before actually convertIng GIC pOSITIOnS mto bargaImng umt pOSITIOns. In the mstant case, there are also practIcal and reasonable grounds for the Employer"S delay m proclaImmg these pOSITIOn to be permanent. The funding IS still outstanding. The amount of money to be allocated to thIs endeavour mIght affect the total number of pOSITIOns. As well, the classIficaTIon of these pOSITIOn have not been establIshed. Some of them are presently OAG8's, some OAG9's and one IS an FOI. On a pracTIcal level how can the Umon know With any degree of certamty who IS ehgible to bump mto these pOSITIOns. Once an employee IS handed a surplus nOTIce, he/she IS enTItled to bump an employee With lesser semonty WithIn ms/her own classIficaTIon. Since the GIC pOSITIOnS are not defimTIvely classIfied, It could be that some OAG8's are allowed Into some posItIOns, some OAG9's m others and so on. It IS possible that an employee could be unfaIrly demed a bump because of a classIficaTIon hmItaTIOn that subsequently IS altered. The Umon"S submIssIons concernIng the unfaIrness caused by the delay are real. It IS possible that an employee who IS beIng surplus sed will be demed access to a pOSITIOn that may become available m the future but too late to save hIs/her employment. But that mherent unfaIrness cannot be cured by replacmg one sItuaTIOn WIth another that IS susceptible to the same charges of unfaIrness for dIfferent reasons. For the reasons stated above, there has been no breach of the collecTIve agreement and thIS prehmInary Issue IS dismIssed. 12 Dated at Toronto, thIS 27th of September 2000 Loretta Mikus, Vice-Chmr