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 23, 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.

4On September 13, 2007, the parties agreed to a number of amendments in a fairly comprehensive Memorandum of Agreement. 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, which were many hundred in number, were filed as the result of the major re-organization within that Ministry. Given my experience in that process my assistance was sought in this matter.

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.

10Since the parties negotiated the rights provided in Appendix 32 there have been grievances filed regarding certain assignments of work. For example, a grievance was filed alleging an improper work assignment because the grievor has been assigned “administrative duties which are the work of OAG 8 employees” who are compensated at a higher rate. Twenty days were cited over a six month period wherein this type of work assignment took place. In the fact situation provided, the requested remedy was that “the Employer should stop assigning administrative duties that are not Court Reporter 1 work” in addition to compensation and damages.

11Paragraph 2(a)(ii) of Appendix 32 states:

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.

12It is apparent that the bargain struck by the parties in the comprehensive document found at Appendix 32 is predicated on a fairly simple agreement. The Employer will guarantee a minimum number of hours (which the FPTs certainly did not enjoy when they held the status of unclassified employee) and in order to make that possible, the FPT will perform work in and out of the courtroom that “supports the overall administration of the courts”. The very remedy contemplated in the above noted grievance is completely contrary to the rationale behind, the spirit of and the express provisions of Appendix 32.

13In my view, there is nothing in Appendix 32 that prohibits the Employer from assigning the work of another classification to an employee in its effort to meet its obligation to provide the minimum number of hours. That is not to say that the Employer can operate its workplace with impunity.

14I understand that the Union and its members have concerns that there will be abuses of work assignment. While I appreciate that worry, there are express restrictions in the Collective Agreement to minimize that risk. For instance, Appendix 32 itself provides that the assignment of work such as this “will have no adverse impact on full-time regular court office staff”. Further, this arrangement is “not intended to result in the increased usage of fixed term employees nor to reduce the work of regular employees.” Moreover, Article 8 (Temporary Assignments) of the Collective Agreement is included in the list of articles that apply to FPTs.

15The Employer stated that in order for Article 8 to apply which would result in an employee receiving the compensation of a higher classification, the following conditions must be met:

• The employee must have been assigned and actually perform the core duties of that position;

• The position has been assigned for a period in excess of five consecutive days;

• The position being assigned is not as the result of backfilling for an employee on vacation

16I agree. Indeed, I cannot perceive how the Employer could meet its obligations if precluded from doing so.