Numéro de sentence arbitrale 16-007

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Award Date:	2016-09-07
Arbitre:	Albertyn, Christopher Voir les prix par Albertyn, Christopher
Municipalité:	Ontario Provincial Police Voir les prix а partir de Ontario Provincial Police
Région:	Central Voir les prix а partir de Central
Classifications:	ARBITRABILITY - Jurisdiction of arbitrator, ARBITRABILITY - Collective agreement limitations, Management Rights, Transfer
Plaignant:	S/Sgt. K. Webb
Comparutions:	J. Martin and others, for the Association, pour l'Association C. Phan and others, for the Employer, pour l'employeur
Longueur:	17 pp
Référence conventions collective	Article 33
Référence législative	Ontario Provincial Police Collective Bargaining Act, SO 2006, c. 35, Sch B

Sommaire

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ARBITRABILITY - Jurisdiction of arbitrator   Uniform members - Grievance challenging denial of lateral transfer following completion of “duration posting” - Whether grievance arbitrable in light of statutory restrictions on scope of collective bargaining - Collective agreement provided a method of effecting lateral transfers - Collective agreement provision did not violate s. 2(3) of OPP Collective Bargaining Act - Grievance arbitrable.

ARBITRABILITY - Collective agreement limitations   Matters outside agreement - Uniform members - Grievance challenging denial of lateral transfer following completion of “duration posting” - Association not relying on management policy concerning procedure for reassignments - Association relying on provision in collective agreement for a method of effecting lateral transfers - Grievance arbitrable.

Management Rights   Scope of arbitral review - Uniform members - Grievance challenging denial of lateral transfer following completion of “duration posting” - Grievance grounded in provision of collective agreement concerning method of effecting lateral transfers - Even in the absence of an explicit provision in collective agreement, arbitrator has jurisdiction to hear a grievance alleging an improper exercise of management rights - Grievance arbitrable.

Transfer   Uniform members - Grievance challenging denial of lateral transfer following completion of “duration posting” - Essential character of the dispute fell within ambit of collective agreement and not exclusively within employer’s prerogative under OPP Collective Bargaining Act - Association relying on provision in collective agreement rather than unilateral management policy - In any event, exercise of management discretion subject to arbitral review on standard of reasonableness and good faith - Grievance arbitrable.

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Réalités

This award determined a jurisdictional challenge brought by the employer. The grievor was a staff sergeant and the detachment commander in Manitowaning, Manitoulin Island, a “duration posting” for a fixed term. On June 27, 2015 he completed his Manitowaning assignment. On January 14, 2015 he requested a transfer to Sudbury once the Manitowaning assignment ended. The grievor’s name was placed on the lateral transfer list under the Standard Operating Procedure Clearance Process- Uniform Positions (SOP). Although there was a detachment commander vacancy in Sudbury, the employer posted the position. The grievor applied but was not successful. The association then filed a grievance on his behalf. The purpose of Article 33 of the collective agreement, entitled “Duration Postings”, was to encourage uniform members to accept remote area assignments for a specified duration by providing monetary incentives. Article 33.09 stated: “To the extent that it does not interfere with the Commissioner’s right to reassign personnel, the Employer undertakes to reassign an employee at the expiration of the term of the employee’s duration posting consistent with the operational requirements of the OPP and the expressed area of preference of the employee.” Section III of the SOP described a “clearing” process for vacancies. Specifically, the SOP gave eligibility priority to members who had completed their duration assignments. When the grievance was filed on October 15, 201, s. 2(3) of the Ontario Provincial Police Collective Bargaining Act, 2006, SO 2006, c 35, Sch B applied; it was subsequently repealed on December 20, 2015. Subsection 2(3) stated that exclusive management rights, including the right of “assignment”, were not negotiable. Subsection 2(2) described the association as the exclusive bargaining agent authorized to represent employees in a bargaining unit and to bargain terms and conditions of employment not proscribed under s. 2(3). Pursuant to s. 2(2), the association’s exclusive bargaining agency included “methods of effecting…transfers”.

Argument

The employer argued that the arbitrator lacked jurisdiction to determine the grievance. For purposes of the jurisdictional argument, the employer conceded that the grievor was eligible and qualified for direct assignment in accordance with the SOP, and that instead of posting the position, under the SOP the grievor should have been placed directly in the vacancy. However, the employer argued that the association’s claim rested on an alleged misapplication of the SOP – a unilateral policy which was not part of the collective agreement and which thus fell entirely within management’s discretion to alter or apply as the employer chose. The employer also relied on s. 2(3) of the Act, arguing that since this section still applied when the grievance was filed, the arbitrator had no jurisdiction to decide a matter that fell within the employer’s exclusive prerogative, namely “assignment”. In addition, the employer argued that Article 33 conferred merely a preference to be reassigned; it gave officers no right to reassignment; and nothing in the job posting provisions of the collective agreement required the employer to reassign rather than post a position. The association argued that the employer’s undertaking in Article 33.09 was enforceable. The association contended that the SOP was consistent with Article 33 and the two should be read together. In accordance with the SOP, before posting a position, the employer was obligated to reassign an employee who accepted and completed an assignment under Article 33. The association relied on s. 2(2) of the Act, contending that its agreement with the employer – to have reassignments take priority over job postings – fell within its bargaining authority, specifically, the right to bargain “methods of effecting…transfers”. Alternatively, if the reassignment fell within management’s exclusive rights, the employer still had an obligation to exercise those rights reasonably, in good faith, and not arbitrarily. The association maintained, therefore, that an arbitrary or unreasonable exercise of management rights was an arbitrable issue.

# de sentence arbirale

Contrary to the employer’s argument, Article 33.09 gave an employee more than a right to express a preference to be reassigned, since it contained an undertaking by the employer to reassign employees to their expressed area of preference upon the expiry of a duration posting. The association thus had a claim which appeared to be grounded in the collective agreement; it was not relying on a policy, the SOP, to found its grievance. Rather, the reference to the SOP was by way of explanation in terms of procedure – viz. the SOP provided the procedure by which the undertaking in Article 33.09 was to be accomplished in relation to the employer’s obligation to post vacancies. As to the employer’s reliance on the Act, it was necessary to identify the essential character of the dispute in order to determine whether it fell within the ambit of the collective agreement or, as the employer contended, within management’s exclusive prerogative under s. 2(3). The essential character of this dispute concerned whether a member, upon completion of a duration posting, had a right to reassignment to the member’s expressed area of preference – a matter which clearly fell within Article 33.09. In Article 33 the parties agreed to a particular method for effecting the transfer of members who had completed a duration posting – an agreement which fell within the subject matter of negotiable terms pursuant to s. 2(2) of the Act. Article 33.09 did not violate s. 2(3) of the Act because the parties were entitled to bargain and to agree upon the subject matter of that article. Therefore the association was entitled to rely on Article 33.09; and the issue in the grievance was one that the association could legitimately pursue to arbitration. As to whether an arbitrator had jurisdiction over the exercise of management rights in the absence of an explicit provision in the collective agreement covering the claim, the jurisprudence in this area was conflicting. Nevertheless, the arbitrator preferred and adopted the views expressed by Arbitrator Surdykowski in Bell Canada [infra], who, citing earlier case law as well as the Supreme Court of Canada’s recent decision in Bhasin v. Hrynew, [2014] 3 SCR 494, found that the exercise of management rights, being fundamental to the operation of a collective agreement, was subject to challenge or abitral review on the basis of reasonableness and good faith.

Autorités cité

• The Crown in Right of Ontario (Ontario Provincial Police) and Ontario Provincial Police Assn. (Richardson), unreported, Dec. 15, 2011 (Abramsky) • Ontario (Provincial Police) v. Ontario Provincial Police Assn. (Policy Grievance), [2012] O.L.A.A. No. 660 (Johnston) • Ontario Public Service Employees Union v. Ontario (Ministry of Labour), 2008 CanLII 70535 (ON GSB) (Dissanayake) • Ottawa Police Services Board v. Ottawa Police Assn., 2013 CanLII 6049 (ON LA) (Marcotte) • Bell Canada v. Unifor, Local 34-0, 2016 CanLII 11573 (ON LA) (Surdykowski) • Regina Police Association Inc. v. City of Regina Board of Police Commissioners, [2000] 1 SCR 360 (SCC)

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