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HomeMy WebLinkAbout2006-2034.Union.07-06-13 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2006-2034 UNION# 2006-0999-0016 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Union Grievance) - and - The Crown in Right of Ontario (Ministry of the Attorney General) Owen V. Gray Stacey Zafiriadis Grievance Officer Ontario Public Service Employees Union Len Hatzis Counsel Ministry of Government Services June 5, 2007. Union Employer Vice-Chair 2 Decision [1] The dispute of Lise Levasseur was referred to me for resolution under Appendix 32 of the parties' collective agreement. The parties' representatives agreed on the material facts on which they relied. After hearing argument based on those facts, I dismissed the dispute orally. This decision confirms that result and records the reasons for it. Appendix 32 [2] Appendix 32 was added to the parties' collective agreement in the last round of bargaining. It provided for the conversion of irregularly scheduled, unclassified court support staff to a newly created "flexible part-time" or "FPT" status as classified employees. In particular, Section 1 of the Appendix provided that those who worked for between 720 and 1500 hours in the twelve months preceding the ratification of the agreement in June of 2005 and who still remained on staff were to be converted to one of several FPT categories, as provided in sections 2 and 3 of the Appendix: SECTION 2 - AVERAGING HOURS MODELS Categories of Annual Hours: Employees shall be assigned to one of the following categories of annual hours. However, these annual hours categories have been established based on historical data and may need to be revised in consultation with the Union as a result of implementation. Category 1: a minimum of 720 hours per annum; Category 2: a minimum of 1000 hours per annum; Category 3: a minimum of 1200 hours per annum; Category 4: a minimum of 1400 hours per annum; Category 5: a minimum of 1500 hours per annum. Note: It is agreed that Category 1 shall, in any event, not be altered. Hours Worked Over Annual Requirement: In addition to the minimum number of hours provided in an employee's assigned annual hours category, the Ministry may assign additional overage hours up to 10 percent (10%) of employees' assigned annual hours category. All hours worked prior to reaching the ten percent (10%) above threshold will be paid at straight time. At the end of the averaging period, any excess hours standing to the employee's credit over and above the 10% overage will be considered overtime. 3 SECTION 3 - ASSIGNMENT TO ANNUAL HOURS CATEGORIES It is understood that assignment of employees to annual hours categories shall be determined by the Ministry, by taking into account factors such as courtroom utilization hours, employees' historical unclassified hours of work (exclusive of training hours) and employer's operational needs. An employee's total number of recorded unclassified hours shall be taken into account by the Employer as a factor when an employee is transferred to a different annual hours category. The first year of implementation will require a joint review that may give rise to minor staffing adjustments. The parties shall establish a joint committee consisting of four representatives from each of the Employer and the Union. This committee is established for the sole purpose of assisting the Ministry in assigning employees to the hours tiers and the consultations contemplated under Section 2. [3] Appendix 32 provides for a mediation/arbitration dispute resolution process: SECTION 6 - DISPUTE RESOLUTION PROCESS The Ministry and the Union agree to appoint an equal number of representatives to a joint committee to facilitate the conversion and to resolve disputes stemming from the implementation or administration of the FPT model. If the parties are unable to settle the dispute at the joint committee level, the dispute shall be resolved in mediation/arbitration in an expeditious and informal manner without prejudice. The mediator/arbitrator shall have all powers of an arbitrator under the Crown Employees Collective Bargaining Act. The mediator/arbitrator shall have no power to act as an interest arbitrator or to alter or amend any provision of this agreement. If the parties are unable to settle the dispute in mediation, the mediator/arbitrator shall endeavour to assist the parties to agree upon the material facts in dispute and then shall determine the dispute by arbitration. When determining the dispute, the mediator/arbitrator may limit the nature and the extent of evidence and submissions and may impose such conditions that he or she considers appropriate. The mediator/arbitrator shall be requested to make a decision within five (5) days, but no later than ten (10) days after completing proceedings on the dispute submitted to arbitration. Since agreeing to the prOVISIOns of Appendix 32 the parties have made several subsequent agreements about the terms and conditions of employment of FPT employees, the conversion process, the dispute resolution process and other matters relating to Appendix 32 and its implementation. An agreement dated January 12, 2006 concerning the Joint Dispute Resolution Committee provides that Article 22 (Grievance Procedure) of the Collective Agreement will not apply to a dispute concerning the implementation or administration of the FPT model, unless the parties otherwise agree. If an employee's complaint concerning the implementation or administration of the FPT 4 model is not resolved after the employee notifies his/her superVIsor about it, the agreement provides that "the employee may file a dispute in writing" on a prescribed form. That dispute is then addressed in the process contemplated by section 6 of Appendix 32 and subsequent agreements of the parties. Lise Levasseur's Dispute [4] Lise Levasseur ("the disputant") worked just under 1000 hours during the review period contemplated by Section 1 of Appendix 32. The employer assigned her to Category 2, the "minimum of 1000 hours" category. She filed a written dispute. The union initially told me that her dispute raised two issues. One was whether for purposes of her category assignment the disputant should have been treated as having worked more hours during the review period than she actually did work because, the union alleged, her training had not been completed until after the review period began and this would have affected the amount of work she could have been assigned. The other issue was that the disputant had been assigned to work considerably more than 1000 hours during the 12 month period following the review period, which the union said demonstrated that the employer had failed to adequately or reasonably consider its operational needs when determining the category to which the disputant was assigned. [5] During the attempt to reach agreement on the material facts in dispute, the union chose not to pursue the allegations (which the employer disputed) with respect to the duration of the disputant's training period and any alleged impact that should have had on the proper calculation of hours worked in the review period. As for the hours worked in the twelve months following the review period, the union said the disputant claimed to have worked 1325 hours, while the employer said she had worked 1287 hours exclusive of training hours and travel time. The union and the employer agreed that their positions were the same whether she worked 1287 or 1325 hours in that period. The issue for determination, therefore, was whether the grievor's having been asked to work for between 1287 and 1325 hours in the twelve months after the review period showed that the employer's assignment of her to Category 2 was a breach of Appendix 32. 5 [6] The union argued that the employer's having put the disputant in Category 2 when the hours she subsequently worked "indicated that she should have been placed in a higher category" showed that it had been unreasonable in assessing its operational needs and had failed to take into account factors that it was obliged to take into account in making the category assignment. [7] Employer counsel observed that the hours worked that it is to consider when making a category assignment under Appendix 32 are the hours worked during the review period specified in the appendix. He noted that the annual hours associated with each category are expressed as minimum hours. The Appendix expressly contemplates that FPT employees may be assigned more hours than the minimum for their category: up to 10 percent more at straight time rates, and beyond that at overtime rates. Accordingly, the fact that an employee worked more than the minimum for her category was not proof, in his submission, of breach of the Appendix. [8] Employer counsel further submitted that the requirement that it make its assignment by taking into account factors "such as" the ones expressly identified in the first sentence of Section 3 of Appendix 32, including operational needs, does not actually oblige it to consider its operational needs. It cited University of Manitoba v. CA.lMA. WJ Local 9 (1990), 68 D.L.R. (4th) 412 (Man. C.A.) for this proposition. Even if the provision does require that operation needs be taken into account, he observed, neither it nor anything else in Appendix 32 requires that operational needs be taken into account in any particular way or with any particular result. In any event, he argued, the fact that an employee works more than the minimum number of hours associated with the category to which she has been assigned does not establish either that the employer failed to consider operational needs or that it did so in an unreasonable way. Reasons For Decision [9] I was not and am not persuaded that the case cited by employer counsel supports the proposition that the employer can completely ignore one of the factors expressly enumerated in the first sentence of Section 3. I found, however, that it was unnecessary 6 in this case to determine whether the employer is obliged to consider its operational needs when making category assignments. (Before coming to any final view on that issue I would want to have the benefit of the parties' full submissions on the implications for it, if any, of the language of paragraph l(b) of section 6 of the parties' agreement of January 12, 2006 concerning the Assignment to Annual Hours Categories Committee.) [10] Assuming, without deciding, that Appendix 32 does oblige the employer to consider its operational needs when it makes a category assignment, I am not persuaded that a breach of that obligation has been established in this dispute. The fact that during the twelve months following the review period an employee worked more, even one-third more, than the minimum number of hours for the Category to which she was assigned does not, as a matter of logic, prove that the employer failed to consider its operational needs, or that it failed to do so reasonably, when making the assignment. As a matter of interpretation of Appendix 32, that fact does not "indicate", as the union put it, that she should have been placed in a higher category. Dated at Toronto this 12th day of June 2007.