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 Aes of OPSEU/MBS Colleive

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 integral part of the distinct employment re-

ality of Ontario Public Service 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 that are unique to the public ser-

vice environment.

Obviously, there are similar collective agreement rights 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 EXERCISE 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 specic continuing statutory except ions, the scope of

management rights under CECBA collective agreements is as negotiated by the

parties. Generally, OPSEU and Management Board Secretariat (MBS) have le

traditional ma nagement rights intact; Article . of the  – OPSEU /MBS

Collective Agreement is a traditional management-rights clause, with the addi-

tion of the statement that management has the right to make “reasonable rules

and regulations.” Under this clause, ma nagement has the right to determine the

“timing and 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 Agreement

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 will have an impact on a collective

agreement right, the management action must be carried out in pursuit of a le-

gitimate government objective and must be rat ional.

Bousquet,the leading GSB case on management rights, sets out the basis

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 the management right has such an impact,

then it must meet two inter-related tests. First, it must be carried out in good

faith, which requires 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 impermissible ends based on discrimination or other grounds un-

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 facts leading to the making of the decision and the decision

itself.” Where it can be seen that the decision follows logically from the facts,

the reasonableness test will be met. e GSB has stressed that it “will hesitate to

substitute its view for that of the 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 die rent

in substance from the private sector jurisprudence, the GSB has shown a par-

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

dierence 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 actually found that a general reorganization, budgetary

or stang measure was an unreasonable exercise of management 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 stang; the denia l of training and de-

velopmental opportunitie s to unclassieds; 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 cases 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, employees 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 overtime, where the relevant Article of the 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 indemnication of legal fees incurred by a grievor in the 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 .

Young, 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) .