GSB#2009-2689

UNION#2010-0999-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles & Anastasios Zafiriadis Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Counsel

HEARING

February 19, 2010.

Decision

1In the collective bargaining negotiations that took place in 2005, the parties agreed to insert a new Appendix 32 into the Collective Agreement. That provision provided for a change of status for a number of employees from fixed term to the new category of “flexible part time” (hereinafter referred to as “FPT”). At the outset the Employer referred to this initiative as the “Revitalized Workforce Project” (“RWP”). As of January 1, 2008 it has been commonly known as “Integrated Labour Relations Strategy” or “ILRS”.

2This change brought about many employee questions and ultimately, a number of disputes/grievances.

3By all accounts, there were a number of areas in the initial language of Appendix 32 that required clarification. Accordingly, in an effort to continue to work together through many of the identified problem areas, the parties negotiated a series of agreements regarding the various matters needing to be addressed. Additionally, in an ongoing effort to resolve outstanding issues that continued to arise, amendments were made to Appendix 32 in the next (and now current) Collective Agreement.

4Prior to negotiating the most recent Collective Agreement changes, the parties agreed to a fairly comprehensive Memorandum of Agreement dated September 13, 2007. This Agreement resolved the identified disputes that had been outstanding and further recognized that future grievances might arise. In large measure, the amendments agreed upon in the September 13, 2007 Memorandum of Agreement were incorporated into Appendix 32 of the current Collective Agreement.

5Since September of 2007, approximately two hundred grievances have been filed. In an effort to resolve these matters efficiently, the parties worked together to create a process for the efficient litigation of all outstanding issues. To that end, a number of grievances have been heard and decided by the Board. Those decisions have resolved a number of outstanding matters.

6Given the passage of time and the number of grievances that had yet to be determined, the parties agreed that it was in their collective interest to further streamline the litigation process. In considering various options, it was agreed to investigate the possibility of adopting a process similar to that utilized by the Union and the Ministry of Community Safety and Correctional Services regarding “transition grievances”. Those grievances were filed as the result of the major re-organization within that Ministry. My assistance was sought in this regard.

7At our hearing held on January 18, 2010, the parties agreed to a number of issues including:

o All grievances outstanding as of January 18, 2010 and those filed in the foreseeable future flowing from the interpretation, application and administration of Appendix 32 will be referred to me for determination.

o While it is understood that all decisions under this process will be consistent, they are without precedent or prejudice in accordance with Article 22.16.2.

o I will determine the process to be followed for the litigation of these matters.

8The process for the litigation of the remaining grievances should be efficient and provide a timely and appropriate final resolution. In arriving at my decision in this regard, consideration was given to Article 22.16.2 which states:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

9As was the case in the “transition” process, there are a large number of grievances to determine and the parties are agreed that “traditional arbitration” will not serve their purpose. Therefore, in accordance with my jurisdiction to so determine, these matters will be litigated on the following basis:

• Grievances are to be presented by way of each party presenting a statement of the facts with appropriate documents, if any, and accompanying submissions. I understand that in many cases, particulars have been provided and documents exchanged. That preparatory work should further assist efficiency.

• I recognize that some grievors and managerial employees may wish to attend and provide oral evidence. However, given the task at hand and the time by which to do it, I order only the committee members from each party will attend.

• It may be that in a few instances some confusion might arise regarding certain facts. It might also happen that I will find that insufficient evidence has been provided. In those instances, should they arise, I will direct the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In the event I find there is still uncertainty regarding facts, I reserve the right to ask for viva voce evidence. It is my hope that this need shall never arise.

• Hopefully decisions can be issued within a relatively short period of time following submissions. My decisions will contain brief reasons and sufficient rationale so as to provide the parties with an interpretation thereby allowing them to move forward.

10This is the first decision under this process. A number of grievances filed by Flexible Part-Time employees allege improper scheduling of certain hours of work. The parties have agreed to pose two questions to this Board. It is my intention that the answers will resolve a number of the outstanding grievances.

11The relevant provisions of paragraph 3 of Appendix 32 state:

a) Flexible Part-time (FPT) employees shall be assigned to one of two minimum annual hours categories as follows:

Category 1: a minimum of 1000 hours per annum

Category 2: a minimum of 1500 hours per annum

b) The employer maintains the right to schedule employees beyond the minimum hours for category 1 and 2 above.

c) For each annual hours category, each FPT employee will receive consistent bi-weekly pay based on the minimum weekly hours for their category. In addition, pay for hours worked in excess of the minimum weekly hours up to 36.25 hour per week will be paid on the bi-weekly pay at the regular hourly rate. For clarity, all hours worked by employees regardless of pay rate, shall be counted as hours worked toward the accrual of minimum category hours.

d) all authorized hours worked by flexible part-time employees in excess of 36 ¼ hours per week will be paid at the time one half (1 ½) rate within two months of the pay period within which the overtime was actually worked.

e) In addition to the minimum number of hours provided in an employee’s assigned annual hours category, any authorized hours worked up to ten percent (10%) above the employee’s assigned annual hours category (“overage hours”) will be paid at straight time rates. FPT employees will received additional compensation at one-half (1/2) the Employee’s straight time rate for authorized hours worked in excess of the assigned annual hours category plus 10 percent (10%) overage, less any hours already paid at the overtime rate per paragraph 3(d) above. For clarification, calculations for the purpose of determining additional compensation in accordance with this section will be based on the calendar year for the hours worked and be done at the end of the averaging period. For example:

• 1000 hour category FPT employee works a total of 1300 hours in a year;

• Of those 1300 hours, 100 (or 10% of 1000) are overage hours and therefore will have been paid at straight time rate;

• Of the remaining 200 hours, 70 were already paid at the overtime rates as they were hours worked in excess of 36 ¼ hours in a week per 3(d) above;

• Of the remaining 130 hours which were already paid at the straight time rate, the employee would receive an additional 50% of their hours rate for those 130 hours.

12The first question posed is whether there is any requirement in the Collective Agreement or any other applicable Memorandum of Agreement for the Employer to schedule FPT court support employees before fixed term employees.

13Article 2(a) of Appendix 32 states:

The parties agree that:

(a) Employees will be assigned work as follows:

(i) The employer recognizes that the primary work of courtroom staff will be working in the courtroom as described in their job specifications.

(ii) In accordance with Article 2 of the Collective Agreement recognizing management’s right to assign work, the employer will assign work to courtroom staff that supports the overall administration of the courts. This work will be both inside and outside the courtroom as needed. Such assignment of work will have no adverse impact on full-time regular court office staff.

(b) Subject only to the specific provisions in the Collective Agreement, the Ministry may continue to hire and use fixed-term employees in the courts as required in accordance with operational needs. The parties further agree that the contents of this Memorandum are not in any way intended to alter the commitments in the Collective Agreement with respect to the reduction of the fixed-term workforce. Further, the Employer agrees that the contents of this Memorandum are not intended to result in increased usage of fixed-term employees nor to reduce the work of regular employees.

14It was the Employer’s view that the answer to this question must be “no”. In an effort to fully set out its position in this regard, the Employer provided a Memo sent July 10, 2009 to its managers regarding the scheduling of FPTs. It stated, in part:

…I am writing to highlight these three recommendations with the request that they be implemented in all court locations in your respective region as soon as possible so that we may start to realize savings immediately:

• Rounding of Hours – Flexible part-time (FPT) employees should be schedule to their minimum weekly hours of 19.6 hours and 28.75 hours in accordance with their annual hours category, whenever possible. Where the rounds of hours is required, it should be limited to 20 hours for the 1000 hr FPT and 29 hours for the 1500 FPT.

• FPT Usage – in accordance with the ILRS agreement, FPT employees must be scheduled to meet their minimum weekly hours each and every week where operationally feasible based on their annual category of hours. This may result in fixed-term/unclassified (FXT) staff being removed from the schedule and asked not to report for work on a day that they were previously scheduled. FPT staff will only be assigned to administrative work to meet but not to surpass their minimum weekly hours threshold, where operationally feasible.

15The Union presented their argument by way of example. It was contended that in a case where an FPT is scheduled to work on a Wednesday, Thursday and Friday in any given week, no fixed term employee should be offered hours on the Monday or Tuesday of that week because the FPT has not yet worked their minimum number of hours. It might be that the work being done on the Monday and Tuesday is courtroom work that would more likely result in full days of work. Further, the work being assigned on Wednesday, Thursday and Friday to the FPT might be office work that would only bring about their minimum hours. The FPT should have the first opportunity at courtroom work.

16In reply, the Employer asserted that there are a number of operational needs that drive the scheduling of employees such as the need for continuity, court schedules and case specific requirements. The Employer also contended that if there are insufficient hours assigned to fixed term employees they may be less inclined to continue employment with the Ministry. Further, they would have less opportunity for their skills to be maintained. To find for the Union in this matter would allow FPTs first right of refusal of all available work and that was not the intention of the parties when they negotiated the September 13, 2007 Memorandum of Agreement which was incorporated into Appendix 32 of the current Collective Agreement.

17After consideration, I must agree with the Employer. While it is clear from Appendix 32 that FPTs may well work in excess of their minimum hours, there is nothing that states they have a right to hours in excess of their category. I have no hesitation in finding that if the parties intended for the FPT employees to have a right to be scheduled work in excess of their stated minimum before any work could be offered to fixed term employees they could have and would have stated it clearly. There is no such provision in the Collective Agreement. Further, I could find nothing in any Memorandum of Agreement that mandates such a method of the scheduling of work. Accordingly, I must find for the Employer in this regard.

18The second question posed is somewhat similar. The parties asked if there is any obligation upon the Employer to schedule FPT employees any hours in excess of their minimum annual hours.

19A review of Appendix 32 reveals, at paragraph (b) that “the employer maintains the right to schedule employees beyond the minimum hours for category 1 and 2 above”. It further sets out how additional hours worked will be compensated. However, it provides no Employer obligation to schedule hours beyond “the minimum hours for category 1 and 2”. Again, I could find nothing in the Collective Agreement or any Memorandum of Agreement that provides a right of the FPT to work beyond their minimum annual hours.

20I remain seized in the event there are implementation difficulties resulting from this decision.