GSB#2009-2681

UNION#2009-0551-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hogue et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Frank Inglis Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARING

June 26, 2013

Decision

1By agreement of the parties, this decision is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent.

2This grievance relates to the application of COR 8.1.2, which deals with the distribution of overtime, and reads as follows:

COR 8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

3The grievance also alleges a breach of COR 11, relating to on-call duty and the premium associated with such duty.

4The grievors all work as Electronic Supervision Resource Officers (ESRO) in the Ministry’s Electronic Supervision Program (ESP), which monitors individuals who have been sentenced by the courts to home supervision through the use of electronic devices such as affixed anklets. The grievance allege that the employer is in breach of COR 8.2.1 and COR 11 as a result of the fact that the employer has not established a method for the equal distribution of overtime, and that the ESRO’s no longer have access to on-call duty pay.

5The facts behind the dispute are not complex and not in dispute. The ESRO’s work out of different communities spread across the province. At one point there were approximately twelve, but the current number of active ESRO’s is nine. Prior to 2008, the ESRO’s performed the bulk of the work associated with the ESP, which meant, in addition to their regular duties, they worked significant amounts of overtime to cover for their colleagues and also regularly worked a set on-call schedule to cover after-hour alerts. Both the overtime work and on-call duty attracted premium pay under the collective agreement.

6In 2008, the Ministry advised the ESRO’s that a new monitoring centre would be created in Mississauga. This centre is staffed on a 24/7 basis. The employer created nine Monitoring Centre Officer (MCO) positions. These positions were posted but none of the grievors applied to move to the new jobs in Mississauga. There is considerable overlap in the job duties of the MCO and the ESRO, as reflected in the Positions Description Reports (PDR). However, the MCO PDR stipulates that those working at the monitoring Centre in Mississauga are required to work rotating shifts on a “24 / 7 / 365 basis.” There is no similar requirement for the ESRO position, and the grievors are not required to work shifts.

7The employer argues that the purpose for establishing the Monitoring Centre was to centralize a large portion of the ESP work. Since the Ministry uses an external contractor to do home inspections and installations, all of the related tasks can now be performed by use of computer monitoring software and telephone communication with key stakeholders, such as clients, collateral contacts, parole officers and, ultimately, the police. The employer stated that it prefers to have all of the shift work, and any related overtime, performed at a single, secure location, as this obviates the concerns related to employees in the field working alone after hours at local parole offices. Also, electronic systems are centralized at the location, which assists with the process of installation and troubleshooting. In addition, stakeholders access the ESP resources through one toll-free number, and it is preferable to channel all such calls to a single location for processing. Moreover, the physical files related to each offender are located at the Mississauga Centre and centralization of the work improves access to such information. Finally, the Centre contains a backup system in the event that there is a disruption of regular servers or government Internet services. For all of these reasons, the employer argues, the restructuring of the work serves a legitimate business need. More importantly, these factors also differentiate the MCO positions from those of the ESRO’s, such that there is clearly a separate “local workplace” at the Mississauga Centre. There is a system in place at the Centre for the fair and equitable distribution of overtime, and there is no basis for a grievance related to the overtime claims made by the grievors.

8The union argues that they perform the work in question during the day shift, they have performed the same work in the past, and there is no technical impediment to the employer treating the ESRO’s and the MCO’s as working in the same “local workplace” for the purposes of distribution of overtime.

9The union asserts that the PDR’s for the two positions are “virtually identical”, aside from the stipulation that the MOC position are said to require work rotating shifts, whereas there is no such stipulation for the ESRO’s. However, the union relies on the fact that the ESRO’s were required to work shifts in the past, and when they did so, they performed precisely the same role as the MOC’s now perform. Both positions, however, are classified at Rehab Officer 2, and the purpose, duties and knowledge aspects for both jobs are, according to the PDR’s, essentially the same. The union argues that the only significant effect of the establishment of the Centre is that the senior employees performing the same job have now been deprived of overtime and on-call work.

Decision

10The employer is not required to establish a system for the fair distribution of overtime across a given classification or even across a group of employees performing the same job. Overtime opportunities do not have to be equally distributed between all correctional officers across the province, for example, but only within each institution. This follows from the collective agreement language, in which the obligation is restricted to the “local workplace.” Therefore, this dispute is not to be determined on the basis of a finding that the duties of the MCO’s and the ESRO’s are “virtually identical.” Even if I found that the jobs were identical, such a finding would not require a system for the fair distribution of overtime. The question is whether the two groups form a “local workplace” for the purposes of COR 8.2.1.

11The problem for the grievors is that the collective agreement contains a specific reference to the “local workplace” as the defining group of employees among whom overtime opportunities must be distributed. This phrase is, in my mind, unambiguous and it clearly refers to a physical geographic location. It is difficult to see how widely distributed workplaces can be considered to be “local”. To be sure, the language does not seem to take into account the fact that there might be positions which may constitute “virtual” workplaces, in that all of the employees are interconnected via the internet and are required to assist and cover off for each other, as was the case for the ESRO’s prior to the creation of the MCO positions and the Mississauga Centre. However, the fact that the parties may not have accounted for all types of work in the collective agreement does not alter the meaning of the phrase in question.

12The issue before me is whether the MCO’s at the Mississauga Centre and the ESRO’s working out of their various local probation offices across the province constitute a “local workplace” for the purposes of COR 8.2.1. It is my conclusion that the language cannot be stretched so far. First, it is clear that the grievors do not work in the same physical location, and none of them works at the same physical location as the MCO’s. I do not agree that COR 8.2.1 was intended to capture a circumstance in which one group of employee’s works at the same location, while a number of others perform similar work at different locations across the province. I do not see how such an arrangement can be seen to constitute a “local workplace” in any sense.

13Moreover, the employer has clearly decided to concentrate all shift work at the Mississauga location, while the ESRO’s are now only required to work day shifts. In my view, this was an exercise of management rights with respect to the organization of the workplace, and the evidence does not support a conclusion that the decision was made in a manner that was arbitrary, discriminatory or in bad faith. While the union offers a number of suggestions as to how the work could be re-distributed with changes in practice and technology, the collective agreement does not require the employer to make such changes or to take positive steps to maintain or create overtime opportunities for any group of employees, other than those within a “local workplace.” Indeed, with respect to the on-call work, the collective agreement contains no control over the assignment of such work. The loss of such work, properly reassigned to a separate workplace, is not evidence of the breach of a collective agreement right.

14As a result, the grievance is dismissed.