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

Senior Counsel

Legal Services Branch

Management Board Secretariat

HEARING December 4, 2001.

INTERIM DECISION

In Minutes of Settlement dated March 13, 2000, the parties agreed to a method of resolving their outstanding issues in order to finalise and implement the original Memorandum of Settlement, made an order of the board on August 1, 1995 (the original settlement). The outstanding issues relate to the Systemic Change Programme, which the parties have been jointly developing over the last several years.

One of the issues identified by the parties in the March 13 settlement has been labelled the section 14 issue. The employer specifically reserved the right in these minutes to argue that this issue was beyond the original minutes of settlement and therefore the jurisdiction of this board. This issue also referred to as "Gender Balance," and the scope of the application of the remaining items to be arbitrated on January 23, 2002, are the subject of this decision.

Gender Balance

It is clear from a careful review of all my notes in this matter and the correspondence and documents that the parties used section 14 of the Human Rights Code as a short form for issues which relate to and arise as a result of language included in the original minutes. Paragraph 22 states:

The Ministry agrees to work with OPSEU in developing and implementing a Systemic Change Programme which shall be designed to eliminate the barriers to full workplace participation of women correctional officers in the Ministry generally and in particular at the Windsor Jail. Such a Programme would design and implement positive and supportive measures to promote the quality of women correctional officers including… b) reducing the current imbalance between men and women in its Correctional Officer workforce and the lack of women in supervisory positions… (emphasis added)

Section 14 of the Code permits "special programs" or what have come to be known as affirmative action programs. It is clear from the employer's position that it understands this section 14 issue to mean hiring and promoting by quotas. It is therefore the employer's position that the board has no jurisdiction to order "quotas," and the employer has consistently refused to discuss anything under this issue.

The union takes the position that the parties agreed in the original minutes to implement measures which would "reduce the current imbalance between men and women in its correctional officer work force." It argues that measures that address numerical balancing should be considered. The union has also taken the position -- "quotas if necessary but not necessarily quotas."

After careful consideration of the submissions by the parties on this issue, I have concluded that if the parties had intended quotas to be imposed in the original minutes, they would have included specific language to require it. They did not. However, affirmative action does not merely include hiring or promoting by quotas. The employer clearly recognised this when it said on the record that the whole Systemic Change Program is designed to redress the balance and remove barriers for women Correctional Officers in the ministry. Thus, while I agree with the employer that ordering hiring by quotas is outside the original minutes of settlement, I agree with the union that issues or proposals addressing gender balance short of certain quota programs are squarely within the original minutes. But while I am not prepared at this time to order the parties back to the table to discuss the issue (as requested by the Union), it is in the interest of both parties that they do discuss these issues before having them arbitrated.

In further Minutes of Settlement signed on October 12, 2000, the parties agreed to identify a final list of outstanding issues, which would either be settled through mediation or arbitrated. The parties agreed in paragraph 5 of these minutes that should there be a disagreement about which items should be on the list, the disagreement would be resolved by the board. Thus the issue of "gender balance" must be added to the final list. The parties have agreed that items on this list not resolved by agreement will be put to the board in a quasi-interest arbitration.

If the parties wish to proceed to an interest arbitration on the gender balance issue, a further hearing date or dates may be requested to be set by the Registrar.

The Scope Issue

This issue relates to who will benefit by the final proposed items on the list to be arbitrated. The employer takes the position that the original minutes were agreed to for the benefit of female correctional officers in the ministry, and that this is the central goal of the Systemic Change Program. The employer submitted that while it could agree for some items to broaden the scope of the provision in the policy to all staff or all female staff, there was no obligation to do so.

The Union's position on this issue is that an item by item analysis is necessary. Sometimes a targeted approach is needed to assist women and sometimes a wider application will accomplish the goal of systemic change.

Having carefully considered the written and oral submissions of the parties on this issue, I have decided that an item by item analysis makes more practical sense here. It is clear that the parties have agreed to many measures which will impact the whole ministry and not just women correctional officers. These measures would not be feasible directed only at women correctional officers. The employer is of the view that all the items on the final list should be restricted in scope to female correctional officers only. This may be correct in the context of the original minutes, however, without further submissions to decide the appropriate scope for each proposed measure, I am not at this time prepared to make those decisions.

Dated at Toronto, this 24th day of December 2001.