GSB#2014-2260

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Professional Engineers Government of Ontario (Policy)

Association

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE ASSOCIATION

Larry Robbins Labour Consultant

FOR THE EMPLOYER

Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 31, October 19, 22 and 30, 2015.

Decision

Background

1Two grievances have been referred to this Board for determination. Both arise as a result of the Employer’s decision to discontinue the Compressed Work Week schedules (hereinafter the “CWW”) previously enjoyed by a large number of bargaining unit employees. The first is an Association grievance; the second is a group grievance filed on behalf of more than 100 named employees. While I am seized with both matters, the parties agreed to proceed initially with the Association grievance and to defer further consideration or litigation of the group grievance pending the instant award. This award is therefore confined to the Association grievance.

2The grievance arises out of the Provincial Highways Management Division (“PHM”) of the Ministry of Transportation. Some 300 bargaining unit engineers are employed in PHM (this represents roughly half of the bargaining unit employees across the entire public service, the full bargaining unit). Approximately 40% of those 300 engineers in PHM were, until the events giving rise to the grievance, working under a CWW arrangement. While there may have been individual variations, the typical terms of these CWW arrangements involved extending the hours of the workday in conjunction with establishing a regular “flex day” off once every two weeks. In other words, employees on the CWW arrangement would work fewer days (i.e. nine rather than ten) over a two-week period, but would work more hours on the days they did work. Thus, there would be no alteration to the total number of hours worked. Those hours, however, would be distributed over a smaller number of days.

3This type of CWW had been in place for a substantial period of time. While no discrete point of inception was identified, the evidence establishes that such arrangements had been in place for at least 10 years and likely much longer.

4By letter dated February 18, 2014 the Employer advised the Association, in a “Confidential Disclosure”, that it had taken a decision (which it would soon be communicating to bargaining unit members) to cancel all CWW arrangements across the entire PHM division (subject to two minor exceptions – areas in which no employees in the instant bargaining unit work). The letter read, in part:

The decision to cancel the compressed work week arrangements is a direct result of the division’s changing business needs and service delivery expectations and requirements. Public expectations and business needs continue to be more demanding and delivery standards must be met to meet those needs. The availability of knowledgeable staff to handle detailed requests and meet critical business deadlines is essential. In order to ensure timely and effective service, PHM needs to align its hours of operation with both partner and client office hours to ensure effective support oversight. This change will maintain optimum staff levels throughout the entire business week.

5Approximately a month later, by memorandum dated March 24, 2014, all staff (including those in both the instant and other bargaining units) were advised of the pending demise of CWWs. The memo included the following:

After a review of our requirements and to ensure we are able to provide the best services to the public, it was determined that the compressed work week was no longer feasible for the Division. Please note that effective September 2, 2014, Compressed Work Week (CWW) arrangements in the Division will no longer be available…

6As is evident, both the letter to the Association and the subsequent memo to staff announced a firm decision. There was no consultation with the Association either before or after the decision was taken (apart, of course, from what may have transpired subsequent to the filing of the grievances). (In fairness, no collective agreement provision requiring such consultation was referred to.) Similarly, (although this perhaps begins to tread on the ground of the second grievance) neither was there any Employer consideration (subject to a singular exception to which we shall come) of individual employee circumstances, needs, or abilities to continue a CWW, with or without modifications, in a fashion which might satisfy Employer concerns regarding operational requirements. The prohibition on CWW was, for all intents and purposes, full, complete and irrevocable within PHM. And, as indicated, CWWs ceased as of September 2, 2014 (employees were provided some five months advance notice of the change).

7The case turns on the interpretation and application of Article 9.2 of the collective agreement (in the Employer’s view, one need not consider more than the last four words):

Work arrangements including compressed work weeks, staggered hours, flexible hours, and employees working at home (telework) or at locations other than headquarters, may be entered into by mutual agreement in accordance with current practices. The Employer will make every effort to accommodate the employee’s request, subject to operational requirements.

The evidence

8We heard the evidence of one Employer witness, Peter Verok, the Regional Director of the Central Region of the PHM Division. We also heard the evidence, tendered by the Association, of three bargaining unit engineers who have seen their CWWs eliminated.

9Before proceeding to consider it in the detail necessary for our purposes, it may be helpful to offer a general characterization of the evidence. While there can be little doubt (and there was no issue) as to the relevance of all of the evidence proffered, it stands in stark contrast, though not necessarily in contradiction. The focus of the evidence presented by each party was remarkably different, such that there was little, if any, clear overlap of subject matter, or at least focus, covered (and hence, little, if any, direct conflict). The broad description may well be something of a caricature, but the Employer’s primary focus was on theory; the Association’s on practice. The Employer focused its analysis at an organizational macro level; the Association’s evidence was far more specific in its particularity.

10Mr. Verok provided an outline of the work performed within the PHM Division. It is responsible for 16,000 kilometres of roads, some