Grievance Settlement Board
GSB # 0147/01 UNION#01F405
IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance: Emmett et al.) Grievor
-and-
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care) Employer
BEFORE: Janice Johnston, Vice-Chair
FOR THE UNION: David Wright – Counsel Ryder Wright Blair & Doyle Barristers and Solicitors Joan Gates - Local Union President Yvonne Lewis - Grievor Susan Young - Grievor M. Janice Fanning - Grievor
FOR THE EMPLOYER: Len Hatzis – Counsel Management Board Secretariat Wayne Casey - Manager Debbie Bisset - HR Consultant
HEARING: February 27 & 28; June 18 & 28, 2002.
INTERIM AWARD
This decision deals with a preliminary motion made by counsel for the employer to dismiss the grievances before me on the basis that I do not have jurisdiction to entertain them.
There are nine individual grievances which the employer and union have agreed to have dealt with on a consolidated basis before me. All of the grievances deal with the same issue. The grievors are employed in the Forensic Assessment Unit (“FAU”) at Whitby Mental Health Centre (“WMHC”) as either Registered Nurses, Registered Practical Nurses or Patient Care Attendants. The FAU is one branch of the Forensic Assessment and Consultation Treatment Program (“FACT”). The other two branches of FACT are the Forensic Rehabilitation Unit and the Forensic Transition Unit.
The grievors allege that the employer has violated the collective agreement in that it is failing to manage in a fair and equitable manner. Specifically, the grievances allege that the failure of management to consider compressed work week schedules (“CWWS”) for their unit violates the collective agreement.
All of the grievances are similarly worded and read as follows:
I grieve that W.M.H.C. administration is in violation of the C.A. in that the employer does not manage in a fair and equitable manner and does not make reasonable rules. This inequity results in further C.A. violations and cumulatively these violations suggest systemic discrimination.
The relief claimed is:
That the employer manage in a fair and equitable manner and make reasonable rules. That the employer will follow C.A. protocol by considering proposed CWWA schedules for FAU/FACT program within the C.A. time constraints. Failing the successful development of a new CWWA schedule FAU staff reserve the right to institute existing CWWA schedules in use at WMHC.
The grievors are currently working eight hour days and would like to adjust that. Management has refused to enter into a CWWS with this group of employees or even to sit down with the employees and attempt to negotiate one.
The relevant articles in the collective agreement are:
Article 2 - Management Rights
2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations, shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of the Central Collective Agreement and any other Collective Agreement to which the parties are subject.
Article 3 - No Discrimination/Employment Equity
3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).
Article 9 - Health and Safety and Video Display Terminals
9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.
Article 10 - Work Arrangements
Compressed Work Week Arrangements
10.1 It is understood that other arrangements regarding hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model agreement with respect to compressed work week arrangements is set out below.
Counsel for the employer argued that although the union was attempting to characterize the grievances before me as alleging a violation of the management’s rights clause, that this was not accurate. He suggested that the real and ostensible grievance between the parties pertained to article 10 and management’s refusal to negotiate a CWWS. In his view, article 10 does not create any obligation on the part of the employer to sit down and negotiate anything. Counsel stated that there is nothing in article 10 that compels the employer to negotiate CWWS with employees. Should management agree to do so, then article 10 merely provides a model CWWS for the parties to consider. In support of his position, counsel provided me with three cases