Key Aspects of OPSEU/MBS Collective Agreement, as Interpreted by the GSB
| Author | Timothy Hadwen - David Strang - Leonard Marvy - Don Eady |
| Profession | Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP |
| Pages | 572-652 |
Key Aes of OPSEU/MBS Colleive
Agreement, as Interpreted by the GSB
e aspects of the OPSEU/MBS Col lective Agreement selected for discussion in
this chapter form a signi cant and integra l part of the dist inct employment re-
ality of Ontar io Public Servic e Employees Union (OPSEU) represented public
servants. es e collective agreement rights supplement the employees’ statutory
rights under the Public Service Act (PSA), and must be understood in order to
fully appreciate the employment entitlements t hat are unique to the public ser-
vice environment.
Obviously, there are simila r collective agreement rig hts contained in the
collective agreements of other bargai ning agents who represent public servants.
However, those rights have not been the subject of the same body of case law as
the OPSEU/MBS collective ag reement.
A. REASONABLE E XERCISE OF MANAGEMENT RIGHTS
Crown Employees Collective Bargaining Act, (CECBA) reform ended both
guaranteed management rights, and guaranteed employee rights to grieve cen-
tral issues. Subjec t to a few specic continuing statutory except ions, the scope of
management rights under CECBA collective agreements is as negotiated by the
parties. Gener ally, OPSEU and Management Board Secreta riat (MBS) have le
traditional ma nagement rights intact; Article . of the – OPSEU /MBS
Collective Agreement is a t raditional management-rights clause, w ith the addi-
tion of the statement that management has the ri ght to make “reasonable rules
and regulations.” Under this clause, ma nagement has the right to determine the
“timing a nd manner in which it opts to get its work done.” Yet, the Grievance
OPSEU (Balanchandran) and Ministry of Consumer and Business Service s, GSB/,
April , (Herlic h) at .
Chapter : Key Aspec ts of OPSEU/MBS Collective Agre ement
Settlement Board (GSB) has stated that cert ain limits on the exercise of manage-
ment rights.
) Avoidance of Bad Faith
Where the exercise of a management right wi ll have an impact on a collective
agreement right, the ma nagement action must be carried out in pu rsuit of a le-
gitimate government objective and must be rat ional.
Bousquet,the leading GSB cas e on management rights, sets out the basi s
for limiting the exerci se of a management right. ere must be a provision in the
collective agreement that would either be negated or unduly limited by applica-
tion of the right. If the exercise of t he management right has such an impact,
then it must meet two inter-related tests. First, it must be carried out in good
faith, which requi res that an employer have “a genuine intention to carr y out a
legitimate government objective … .” e dec ision cannot be a “disguis ed means
of achieving imperm issible ends based on discri mination or other grounds u n-
related to the making of genui ne management decisions.” Secondly, it must meet
the test of reasonableness, which only requires that there be “a rational relation-
ship between the fact s leading to the mak ing of the decision and the dec ision
itself.” Where it can be seen that t he decision follows logical ly from the facts,
the reasonableness test will be met. e GSB has stressed that it “will hesitate to
substitute its view for that of t he employer as long as [these] minimum tests are
met…. Management … need not be correct.”
While it has been obser ved by the GSB that the Bousquet test is not die rent
in substance from the private sec tor jurisprudence, the GSB has shown a pa r-
ticular wi llingness to review the exercis e of management rights.
OPSEU (Bousquet) and Ministr y of Natural Resources, GSB /, March , (Gor-
sky) at . e case occ urred under the pre- CECBA, when the st atute itself reserved
certain r ights to management, but the c ase concludes the statutor y provision makes no
dierence when det ermining the implie d limits on the exercise of ma nagement rights.
Ibid. at . For an exa mple of alleged bad faith, na mely reprisal for union ac tivity, see
OPSEU (Dobro) and Mini stry of the Environment, GSB /, January , (Dis-
sanayake) at .
OPSEU (Boulet) and Ministry of Commu nity and Social Service s, GSB/, August ,
(Brown) at .
e leading GSB cas es are OPSEU (McIntosh) and Ministry of Governme nt Services,
GSB/, December , (Dissa nayake); Boulet, GSB/, August , ,
above note ; OPSEU (Pilon et al .) and Ministry of Community and Social S ervices,
GSB/, November , at –, a nd June , (Brown); OPSEU (Young et
al.) and Ministry of the At torney General, GSB /, July , (Abramsky); OP-
SEU (Emmett et al.) and Minist ry of Health and Long-Term Care, GSB/, Aug ust
, (Johnston) at . See a lso OPSEU (Ashley) and Ministry of Communit y, Family
and Children’s Serv ices, GSB/, November , (Abramsky).
e GSB has never actual ly found that a general reorgani zation, budgetary
or stang measure wa s an unreasonable exercise of ma nagement rights. Some
management decisions that have been reviewed using the Bousquet test, but not
overturned, i nclude: the establishment of new workload levels; t he use of tempo-
rary, rather than permanent, positions for stang; the denia l of training and de-
velopmental opportunitie s to unclassieds; a refus al on the part of management
to meet and negotiate a compressed work week agreement; the reassignment of
duties and backlogg ing of work; and the conduct of a voluntary competit ion for
temporary assignments .
ere are also case s where the GSB has found that employer decisions had
no possible impact on a collective ag reement right. Management has “unfettered
discretion” when it is acting “on its own i nitiative and in its own interest withi n
its exclusive sphere.” erefore, where management so acts, employee s should
seek their remedy at the barga ining table, not at the GSB. Instances where man-
agement rights have been found by the GSB to be non-reviewable include:
• the allocation of overt ime, where the releva nt Article of t he collective
agreement did not mention the dist ribution of overtime, but merely pro-
vided for overtime pay once overtime was awa rded and performed;
• the authorization of travel expenses;
• the indemnicat ion of legal fees i ncurred by a g rievor in t he course of
defending him self against alle gations relating to the workplace , although
the GSB le open the question of whet her it would take jurisdiction con-
cerning an a llegation that the policy had been admi nistered in a bad faith
manner;
• the payment of professional fe es; and
Boulet, GSB/, August , , above note .
OPSEU (Lonsdale) and Minist ry of Correctional Ser vices, GSB /, March ,
(Fisher) at .
Youn g, GSB /, July , , above note .
Emmett, GSB/, August , , above note at .
Pilon, above note at .
OPSEU (Perez) and Ministry of Community a nd Social Services , GSB/, January
, (Abramsky) at .
OPSEU (Drew) and Ministry of Cor rectional Service s, GSB/, December ,
(Slone) at .
OPSEU (Carter et al.) and Minist ry of Correctional Ser vices, GSB/, Jul y ,
(Knopf).
OPSEU (Bott/Prosser) and Minist ry of Revenue, GSB/, June , (Dissanayake).
OPSEU (Sindall) and Ministr y of Solicitor General and Cor rectional Servic es, GSB/,
February , (Fisher).
OPSEU (Cherwonogrodzk y et al.) and Ministry of Finance, GSB /, April ,
(Gray) .
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