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 Minutes of Settlement, dated March 13, 2000 agreed to by the parties to finalise the outstanding issues relating to the implementation of the Memorandum of Settlement, made on order of the board on August 1, 1995 (the O’Brien award).

The parties recognised in the original decision made on consent that in order to eliminate sexual harassment and discrimination in the Ministry a systemic approach was required. To that end they have developed a Systemic Change Programme, designed to eliminate workplace barriers to women correctional officers. As part of that programme the parties specifically agreed to implement “a speedy and effective resolution of discrimination complaints.” Pursuant to this agreement the parties have jointly developed a detailed mediation process. The subject of this 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, while they are working as mediators. According to the Union’s submission there is a precedent for its position. As an earlier part of the Systemic Change Programme, one-day training sessions on human rights were conducted by facilitators (management and union) in every workplace in the Ministry. These facilitators worked full time for nine months. The parties agreed to pay the facilitators on the basis of the bargaining unit position that was most like the work that they were doing, that of Information Officer III. The salary of Information Office III was paid to all facilitators, except those who were making more in 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 acting as mediators should be paid accordingly. Counsel for the Union argued that it is important that the position of mediator be respected. Further employees should be given an incentive to take on the responsibility of the position. Failure to adequately compensate mediators may result in skilled, talented people not participating in the program. In sum, Counsel argued that the separate rate for all mediators would signal respect for the position and support the principle 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 facilitator’s situation was completely different, since they were working full time on this special project.

Counsel also argued that the question of compensation for mediators is beyond the scope of the original award, and therefore not arbitrable. In the Minutes of Settlement of March 13, 2000 the Employer reserved its right to object to the board’s jurisdiction in this matter, should the matter ultimately require arbitration. Counsel argued that nothing in the original award supports an interpretation that mediators be paid more for their work as mediators, and what the Union was asking for was that the board amend the collective agreement as it pertains to duty assignments. Counsel argued that the Union was asking the board for “an interest arbitration” and that this result could not have been the intention of the parties in agreeing to the O’Brien award.

Counsel submitted that the board’s jurisdiction flows from the March 13, 2000 minutes of settlement that requires the board to interpret the O’Brien award. In Counsel’s submission no reasonable interpretation of the O’Brien 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 in, for example, Institutional Crisis Interventions Teams, Cell Extraction Teams, as Hostage Negotiators and as W.D.H.P Advisors. When acting in these roles they are paid at their regular rate of pay. This interpretation is also consistent with the collective agreement which, at Art 8.1.1. provides:

Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive days, he or she will be paid acting pay from the day he or she commenced to perform the duties of the higher classification in accordance with the higher rate in the higher classification provided that where such a change results in an increase of less than three percent, he or she shall receive the next higher salary rate again (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 in excess of five consecutive days (which would be extremely unlikely, if at all) would necessarily be entitled to the rights under article 8.1.1 (this would have to be determined on the specific facts of the situation), the article clearly and explicitly sets out a threshold (in excess of five consecutive days) which the parties have bargained for, which must be met before any “acting pay” at a higher rate would be paid. The union’s proposal flies directly in the face of past practice and the collective agreement.

The Employer also took the position that paying mediators at different rates was consistent with the marketplace and would not discourage good applicants. It would also be a significant administrative challenge to implement the Union’s proposal.

The Union’s Reply Argument

The Union argued in reply that systemic change in the Ministry would not be accomplished by treating mediation as a duty assignment. Counsel argued that there is nothing in the O’Brien award that limits compensation for mediators. At the time of this settlement the parties had not decided on a conflict resolution system which relied on bargaining unit 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 arises out of the employee’s workplace duties. The role of the mediator arises from the joint Union-Management initiative, which resulted in the Systemic Change Programme, and more specifically the “Mediation Model.” As a result, Counsel argued the board’s authority is not fettered by the duty assignment language in 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.O. 1990, c.H.19 (as amended). Counsel cited Board of School Trustees, School District No. 23 (Central Okanagan) et al v. Renaud et al (1993) 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 (SCC) and Re Board of Governors of the University of Ottawa and Association of Professors of the University of Ottawa, 1999 CanLII 35971 (ON LA), 85 L.A.C. (4th) 214 (Adams).

Counsel specifically addressed the role of WDHP Advisor arguing that it was a voluntary position with no specific experience, skill or ability required. The role is done largely on the telephone, and is infrequent.

Counsel concluded by arguing that all internal mediators should be paid the same rate in part to be fair and in part so they are all accorded the same respect. He argued that the pay administration issue did not justify denying mediators compensation. And finally appropriate compensation was the best way to guarantee appropriate applicants, who must engage in systemic change from within the Ministry.

Decision

The parties have agreed to implement a peer mediation model as part of the conflict resolution protocol of the Systemic Change Programme in the Ministry. Qualified candidates will be selected and appointed according to regional needs. All employees within the Ministry are eligible to apply to be peer mediators. The parties have agreed that the appointed mediators will work on an ad hoc, as needed, basis and that the assignment to the list is not a full or part-time position. The assignments are to be for three years, with a review in the second year. Mediation is available for parties alleging discrimination harassment on both prohibited grounds under the Code and “non-grounds based conflicts” (see p. 24 Mediation Model). Peer mediators will be given training 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 Union. While there is nothing in the O’Brien Award that prohibits compensation, there is also nothing in 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 within the Systemic Change Programme. Facilitators were paid the rate of a comparable position -- Information Officer III. However, facilitators worked full-time in their positions. The peer mediators are to work on an ad hoc basis. Thus, this rationale is not persuasive.

The second rationale for paying mediators in 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 recruiting peer mediators for this 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 training in mediation skills and have the opportunity to gain experience in a field that is becoming more and more respected within our society. I am therefore not convinced 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 working on a duty assignment are not paid above their normal rate of pay.

Thus, after careful consideration of the submissions of the parties, I find that I am not persuaded that mediators in the Systemic Change Programme should be paid at the rate of Human Rights Officer II when mediating. Having decided that the Union’s argument does not support an order of this board that peer mediators should receive such compensation for work as mediators, I do not need to address the Employer’s jurisdictional argument.

Dated at Toronto, this 6th day of June, 2001.