Key Aspects of the OPSEU/MBC Collective Agreements, as Interpreted by the GSB

• Author: Timothy Hadwen/David Strang
• Pages: 635-686

635

 

Key Aspects of the OPSEU/MBC

Collective Agreements, as

Interpreted by the GSB

Statutory and collectively bargained rights together make up the full

range of the employment entitlements of unionized employees. The

key aspects of the Ontario Public Service Employees Union (OPSEU)/

Management Board of Cabinet (MBC) collective agreement selected for

discussion in this chapter form a major part of the distinct employment

regime governing OPSEU represented Public Service of Ontario Act,

2006 (PSOA)1 Part III appointed government employees working in the

Ontario Public Service (OPS). Those provisions:

• require management rights to be exercised reasonably if they

have an impact on collective agreement rights

• limit assigning bargaining unit work to non-bargaining unit

employees

• require that, in job competitions “where qualif‌ications and abil-

ity are relatively equal, seniority shall be the deciding factor”

• require ongoing work to be staed permanently rather than with

term contracts

• provide ongoing seniority to seasonal employees

• require just cause for discipline and dismissal, as discussed in

particular detail concerning conduct expectations and correc-

tional ocers

1 SO 2006, c 35, Sch A [PSOA].

636 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

Other important collective agreement rights, those applying in the

event of divestment and layo, are discussed under “reasonable eorts”

and “job security” in Chapter 9.

Security of employment and giving eect to seniority are key union

bargaining priorities. The resultant collective agreement provisions rep-

resent perhaps the fundamental dierence between the rights of union-

ized and non-unionized employees in the OPS.

All these collective agreement rights supplement

• rights and obligations under the PSOA, as discussed in chapters 2

and 3

• rights under general employment related legislation and the closely

related collective agreement provisions discussed in Chapter 6

Similar collective agreement rights to those discussed in this chapter

are contained in the MBC collective agreement with the Association of

Management, Administrative and Professional Crown Employees of

Ontario (AMAPCEO), the bargaining agent for government employees

most similar to those represented by OPSEU.2 However, those rights

have not been the subject of the same body of caselaw as the OPSEU

entitlements discussed below.

A. REASONABLE EXERCISE OF MANAGEMENT RIGHTS

Prior to the Crown Employees Collective Bargaining Act, 1993

(CECBA), bargaining about an extensive range of management rights

was prohibited by statute, including provisions dealing with promotions,

demotions, transfers, and layos.3 Now, the only remaining prohibitions

are on bargaining the arbitrability of classif‌ications4 and the prohibition

against an interest arbitrator ordering a “job oer guarantee.”5 Other-

wise, management rights are now fully bargainable by the parties.

OPSEU and the MBC have bargained a fairly standard manage-

ment rights clause stating that the “right and authority to manage the

business and direct the workforce . . . shall be vested exclusively in the

2 For a discussion of the bargaining agents of the employees of government, see

Chapter 7.

3 In CECBA 1972, s 17(1), which preceded the Crown Employees Collective Bar-

gaining Act, 1993, SO 1993, c 38 [CECBA].

4 See ibid, s 52(1), as discussed in Chapter 11.

5 See ibid, s 5(5), as discussed in Chapter 9.

Key Aspects of the OPSEU/MBC Collective Agreements, as Interpreted by the GSB | 637

Employer,” with the addition of the statement that management has the

right to make “reasonable rules and regulations,” all “subject only to

the provisions” of the collective agreement.6 Under this clause, manage-

ment has the right to determine the “timing and manner in which it opts

to get its work done,”7 subject to the contractual limits on management

rights as articulated by the Grievance Settlement Board (GSB).

) 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 legitimate government objective and must be rational.

OPSEU (Bousquet) and Ministry of Natural Resources,8 the lead-

ing GSB case on management rights, sets out the basis for limiting the

exercise of a management right. There must be a provision in the col-

lective agreement that would be undermined or aected. If the exercise

of the management right has such an eect, 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 carry out a legitimate

government objective.”9 The decision cannot be a “disguised means of

achieving impermissible ends based on discrimination or other grounds

6 OPSEU/MBC Unif‌ied Bargaining Unit Collective Agreement, 2022–2024 and

OPSEU/MBC Correctional Bargaining Unit Collective Agreement, 2018–2021,

online: https://opseu.org/information/general/f‌ind-your-collective-agreement,

Art2.1 [OPSEU/MBC Unif‌ied and Correctional Collective Agreements]. The

MBC collective agreements with AMAPCEO and PEGO have similar language.

7 OPSEU (Balanchandran) and Ministry of Consumer and Business Services,

GSB#0884/01, 18 April 2003 (Herlich) at 10.

8 GSB#541/90, 1 March 1991 (Gorsky) at 35–36 and 64 [Bousquet]. The case

occurred under the pre-1993 CECBA, when the statute itself reserved certain rights

to management, but the case concludes the statutory provision makes no dierence

when determining the implied limits on the exercise of management rights.

9 Ibid at 61. For an example of alleged bad faith, namely reprisal for union activity,

see OPSEU (Dobro) and Ministry of the Environment, GSB#905/03, 31January

2005 (Dissanayake) at 15 [Dobro, 2005]. It is recognized that it is bad faith to

“deliberately tilt the f‌ield with a view to preferring one employee over another,”

but it is acceptable to “tilt the f‌ield” for the genuine government purpose of utiliz-

ing a keen, good, and trained employee for a temporary assignment: Ontario Pub-

lic Service Employees Union (Fitzpatrick et al) v Ontario (Community Safety and

Correctional Services), 2016 CanLII 7450 (ON GSB) (Anderson) at 4–5, citing

Ontario Public Service Employees Union (Perez) v Ontario (Ministry of Commun-

ity and Social Services), 2003 CanLII 52894 (ON GSB) (Abramsky) [Perez].