| 12 |
NO DISCRIMINATION |
| 12.1 |
Human Rights |
|
Every employee has a right to be free of harassment and discrimination in the workplace on the basis of prohibited grounds, as outlined in the OPG Human Rights Policy. An employee who has a harassment or discrimination complaint on the basis of these grounds will have access to OPG Human Rights and Complaints resolution process. |
|
Any Society-represented employee involved in OPG Human Rights and Complaints process may consult with and be accompanied by a Society representative if he/she chooses to do so. No record of a complaint will be maintained in an employee's personnel file, except in the case of individuals who have received disciplinary action. Any person against whom a formal complaint is filed must be given particulars of the complaint. |
|
As long as an employee has an active complaint of discrimination or harassment on the basis of prohibited grounds, either under OPG's Human Rights and Complaints process or with the Human Rights Commission, The Society will not make such a complaint or OPG process the subject of a grievance on the employee's behalf. |
| 12.2 |
Union Activity |
|
OPG shall not discriminate against an employee on the basis of membership or activity in The Society. An employee who has a complaint of such discrimination shall have the right to seek redress under the Grievance and Arbitration Procedure.
|
| 13 |
EMPLOYEE INDEMNIFICATION |
| 13.1 |
OPG will provide assistance and financial indemnification to an employee who, as a consequence of performing the normal duties of his/her job for OPG, is made, or threatened to be made, a party to a civil action or a criminal proceeding (other than for offenses under the Criminal Code of Canada) or quasi-criminal proceeding, or other administrative proceeding (such as formal complaint filed with the Human Rights Commission), or is subject to a threat of discipline or actual discipline from an association that is empowered by statute to regulate professional standards. |
|
Notwithstanding the above paragraph, OPG will not provide financial indemnification to an employee considered by OPG to have acted with dishonesty, bad faith, or with intentional or reckless disregard for the best interests of OPG. |
|
An employee who is subject to prosecution under criminal law (Criminal Code of Canada) as a consequence of performing the normal duties of his/her job and found to be not guilty, or against whom charges have been dropped, may receive financial indemnification. More details are found in the OPG policy.
|
| 14 |
VOLUNTARY RECOGNITION AGREEMENT DISPUTES |
| 14.1 |
Enforcement |
|
The primary method of enforcement of the Voluntary Recognition Agreement shall be pursuant to the grievance and arbitration provision in this Collective Agreement. However, should the Collective Agreement not be in operation or applicable to the dispute, either party shall have the right to refer to final and binding arbitration any differences between the parties arising from the interpretation, application, administration or alleged violation of the Voluntary Recognition Agreement, including any question as to whether a matter is arbitrable. |
|
Subject to the conditions of this Agreement, if a mediator or arbitrator is not appointed within 30 days of a matter being referred to mediation and/or arbitration, either The Society or OPG shall have the right to refer the matter to the Minister of Labour (provincial or federal) or the Chief Justice of the Ontario Court of Justice and the Minister or Chief Justice shall appoint a mediator and/or arbitrator. The arbitrator will have the power accorded under the Ontario Labour Relations Act and the Canada Labour Code. |
| 14.2 |
Selection of Mediators and Arbitrators |
|
Mediators and arbitrators shall be selected from the list of mutually acceptable persons which include those set out below and the costs of using them will be shared equally by OPG and The Society. |
|
List of Mediators and Arbitrators (incomplete) |
|
The parties submit the following individuals to be used as mediators/arbitrators if mutually agreed to:
Kevin Burkett
Pamela Picher
Michel Picher
Robert Howe |
Professor Ken Swan
George Adams
Jane Devlin
|
|
| 15 |
COLLECTIVE AGREEMENT NEGOTIATION DISPUTES |
| Future contract negotiations disputes shall be resolved by binding arbitration. |
| The dispute resolution process shall be mediation-arbitration using the same individual as both the mediator and arbitrator. The negotiating process is set out in full in Appendix VII. |
| The mediator-arbitrator shall consider the following issues as relevant to the determination of the award on monetary issues: |
| a) |
a balanced assessment of internal relativities, general economic conditions, external relativities; |
| b) |
OPG need to retain, motivate and recruit qualified staff; |
| c) |
the cost of changes and their impact on total compensation; |
| d) |
the financial soundness of OPG and its ability to pay. |
A mediator-arbitrator shall have the power to settle or decide such matters as are referred to mediation-arbitration in any way he/she deems fair and reasonable based on the evidence presented by representatives of OPG or The Society in light of the criteria in items (a) to (d) and his/her decision shall be final and binding.
|
| 16 |
COMPLAINT AND GRIEVANCE/ARBITRATION PROCEDURE |
| 16.1 |
Preamble and Principles of Operation |
|
The following dispute resolution procedure consists of three steps: a complaint process (Step 1), a Joint Grievance Resolution Committee (JGRC) (Step 2) and an expedited or regular arbitration (Step 3A or 3B). These processes will be used by the Parties in order to resolve complaints and grievances submitted by Society-represented staff, The Society, or OPG unless the parties have expressly agreed elsewhere in this Agreement on alternate dispute resolution processes to limit the scope of the grievance/arbitration procedure. |
|
Early discussions and resolutions at the lowest level possible are encouraged because this leads to addressing issues before a grievance is lodged, and are key to maintaining a positive working relationship. |
|
The Parties recognize the need to share information and openly discuss options for resolution at all levels of the complaint and grievance process. This is to ensure a common understanding of all the facts and will enhance the chance of a mutually acceptable resolution. It is understood that proposals for settlement discussed during Steps 1 and 2, or during attempts at mediated resolutions, will not prejudice either party at the arbitration stage. |
|
This process should have the flexibility to respond to the advantages gained through a problem-solving approach to dispute resolution. |
|
This process is designed to be simple, efficient, and understandable for all parties involved. |
| 16.2 |
Definitions |
|
a) |
Employee Complaint |
|
|
An employee complaint is a claim of unfair treatment that an employee has requested The Society to present on the employee's behalf. An employee complaint, which does not meet the criteria of an employee grievance, shall not be subject for the grievance/arbitration procedure. |
|
b) |
Employee Grievance |
|
|
An employee grievance is defined as any dispute between OPG and The Society arising from the application, administration, interpretation or alleged violation of the Collective Agreement, or unreasonable exercise of Management discretion in the administration and application of the Collective Agreement. An employee grievance shall be filed at Step 2, normally following consideration of an employee complaint at Step 1. |
|
c) |
Group Grievance |
|
|
A Group grievance is defined as any dispute between OPG and The Society arising from the application, administration or alleged violation of the Collective Agreement, or unreasonable exercise of Management discretion in the administration and application of the Collective Agreement relating to the same dispute by more than one employee. A Group grievance shall be filed at Step 2. Grouped complaints will normally be considered at the Complaint Step if the employees report to a single supervisor. |
|
d) |
Policy Grievance |
|
|
A Policy grievance is defined as any dispute between OPG and The Society arising from matters of application, administration, interpretation, or alleged violation of the Collective Agreement. A policy grievance shall be filed at Step 2, and must be filed within 60 days after the circumstances giving rise to the grievance have come or ought to have reasonably come to the attention of The Society. |
|
e) |
Management Grievance |
|
|
OPG may present to the Joint Society-Management Committee any complaint with respect to the conduct of The Society. If such a complaint is not resolved, it may be treated as a grievance and referred to arbitration under the provisions of this Article. |
| 16.3 |
Scope Notes |
|
Grievances concerning the Performance Pay Plan will be processed in accordance with Article 20. |
|
Job evaluation complaints shall be processed in accordance with this Article. |
|
Disputes concerning Article 90 relating to the Occupational Health and Safety Act or Part II of the Canada Labour Code will normally be referred to the Ministry of Labour consistent with Article 91. |
|
The scope of the Complaint and Grievance/Arbitration process includes policies listed in Article 97. |
|
The grievance/arbitration procedure may be used to challenge any unreasonable, arbitrary or bad faith action taken by OPG which results in the exclusion of any employee or position from the bargaining unit. The Parties will attempt to resolve disputes expeditiously. The Society may initiate an unresolved dispute as a Policy Grievance. |
| 16.4 |
Timeliness |
|
The grievance procedure shall proceed without unnecessary delay. It is recognized that in some cases strictly enforced time limitations may interfere with a mutually acceptable process of fact finding or problem resolution. However, either Party may invoke a time limitation upon five (5) days' written notice to the other Party. Except by mutual agreement, time limits for initiating a complaint/grievance, however, must be adhered to. |
| 16.5 |
Step 1: Employee Complaint |
|
a) |
A Society Unit Director or Delegate must file an employee's complaint with the complainant's supervisor within 30 working days of the date the employee should reasonably have been aware of the action or decision-giving rise to the complaint. The Society Office will provide a form outlining the grievor's complaint, proposed resolution and identifying the employee's Society representative. Management's representative will be identified by the local Human Resources Office. |
|
b) |
Employee complaints must normally be raised with the employee's supervisor and/or Society Delegate and every effort should be made to resolve it informally. OPG will provide independent facilitation where the Parties agree that this is a reasonable approach to resolving the complaint. |
|
c) |
Where mutually agreeable, The Society may initiate an employee grievance arising from disciplinary suspension or discharge directly at Step 2. Benefits grievances shall be initiated at Step 2. |
|
d) |
Local management and The Society representative will meet to attempt resolution within ten (10) working days of the date that the complaint is filed. Where mutually agreeable, the employee may attend the Step 1 meeting. Any resolution at Step 1 will be without prejudice and will not constitute a precedent in any other matter between the Parties except by written agreement. |
| 16.6 |
Step 2: Meetings of the Joint Grievance Resolution Committee |
|
a) |
The Society may file an employee grievance at Step 2, within ten (10) working days of the Step 1 meeting. A Policy grievance shall be initiated at Step 2. A grievance must be filed by letter from a Vice-President of The Society, or designate, to a management designate. This letter will outline the grievance and proposed resolution. Management will keep The Society apprised at all times as to the management designates for the purposes of receiving Step 2 letters. |
|
b) |
Prior to 2nd Step the Parties will use their best efforts to identify the issue(s), the basis of the grievance and areas of agreement and disagreement. One week before each Step 2 meeting, the parties will exchange briefs outlining the issues, providing the facts and information relevant to the grievance, and containing proposals for settlement of the grievances scheduled for the meeting. |
|
c) |
The parties will form a standing Joint Grievance Resolution Committee that will meet on a pre-booked, bi-monthly basis. Each party will appoint two standing members to this Committee. These appointees must be representatives with decision-making authority. |
|
d) |
A Step 2 grievance may be resolved by written agreement of the JGRC. Such resolution shall be final and binding on the Parties. The JGRC may, on consensus, refer a grievance back to local parties for resolution with additional guidance and/or information. Nevertheless, if resolution is not achieved before the date of the next Step 3A meeting, the grievance will be automatically referred to arbitration. |
| 16.7 |
Step 3 Grievance Mediation and/or Arbitration |
|
a) |
Where resolution is not achieved at Step 2, grievance will automatically advance to Step 3A (expedited arbitration) or Step 3B (regular arbitration) unless withdrawn by The Society. |
|
b) |
Grievances will advance to expedited mediation/arbitration (Step 3A) unless based on:
- Termination or Discipline
- Harassment or discrimination
- Policy Grievances
Grievances excluded per the above will proceed to regular Arbitration unless both parties agree that the expedited process is appropriate. |
|
c) |
In all cases a single Mediator and/or Arbitrator will be used. The parties will agree, on an annual basis, to arbitrators for both the expedited (Step 3A) and regular (Step 3B) arbitration procedures, and may on joint agreement engage other arbitrators on a case by case basis. A back up arbitrator will be agreed on for the Step 3A process. |
|
d) |
The parties will agree on a special arbitrator to hear all grievances related to benefits. |
|
e) |
Dates will be arranged as follows:
- expedited mediation/arbitration will be scheduled, in advance, bi-monthly
- regular arbitration hearings will be scheduled, in advance, tri-monthly
|
|
f) |
For expedited Arbitration, the parties will exchange briefs one week prior to the Hearing, with a copy to the Arbitrator, outlining their respective positions and proposed resolution. Normally no witnesses will be called unless the Arbitrator so directs. The parties may submit a joint statement of facts. The arbitrator's award shall be delivered within 10 working days following the hearing. Each Party shall assume its own costs of the arbitration proceedings and shall share equally the cost of the arbitrator. |
|
g) |
If either party requests an arbitrated outcome at Step 3A, this will be the joint direction to the mediator/arbitrator. Failure to achieve a mediated settlement will not be a consideration in any way at the subsequent arbitration. |
|
h) |
An arbitrator shall consider any difference which arises between the parties relating to the interpretation, application or administration of this Agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this Agreement has been violated. An arbitrator shall also consider any matter of interpretation, application, and administration of policy and practice as may be referred to him/her by employee grievance. An arbitrator shall consider only such evidence as is presented to him/her by representatives of OPG or The Society. |
|
i) |
The arbitrator shall have the power to settle or decide such matters as are referred to him/her in a fair and equitable manner, and the arbitrator's decision shall be final and binding. An arbitrator shall not have the power to amend or terminate this Agreement, policies, or procedures save only any policies and procedures which may conflict with the terms of this Agreement. |
| 16.8 |
Employment File |
|
a) |
Documents communicating discipline and discharge will be maintained in the employee's official employment file (normally 901 file). |
|
b) |
Unless otherwise agreed to, after documents communicating discipline have been on an employee's file for a maximum of two years, and there have been no further disciplinary occurrences, then the documents communicating discipline will be removed. |
| 16.9 |
Society Representatives |
|
A Society representative will be granted reasonable time off from normal duties and have normal base earnings maintained while acting as a Society representative in any of the steps of the grievance procedure or when required by Management to be a participant in arbitration proceedings under Articles 16, 19, 20, 64 and 102. Requests for time off will be made to the employee's supervisor. |
| 16.10 |
Mediators/Arbitrators |
|
The following are Mediators/Arbitrators under Article 16:
Expedited Arbitration
Jules Bloch
William Kaplan
Owen Shime |
Regular Arbitration
Owen Shime
Ken Swan
Louisa Davie
Pamela Picher
Jane Devlin |
|
| 17 |
DISCIPLINE AND DISCHARGE |
| 17.1 |
No employee, except as noted below, shall be disciplined or discharged without just cause. |
|
When disciplining or discharging probationary employees for just cause, it is recognized that the probationary period is an extension of the selection process and that these employees have short service. Therefore, the threshold for discipline and discharge may be less than that of a regular employee in similar circumstances. |
| 17.2 |
|
17.2.1 |
Prior to the imposition of any disciplinary penalty, the employer shall conduct a disciplinary interview. |
|
17.2.2 |
Where an employee is required to participate in an interview in circumstances where discipline is likely to follow for such employee, the employee shall be advised of his/her right to have a Society representative present, and to have such a representative present during the interview if he/she chooses. |
| 17.3 |
The employer shall provide the Society Unit Director and the employee with an email or written notice two (2) business days in advance of any interview where discipline is likely to follow for such employee. Such notice shall indicate: |
|
(i) |
his/her right to be accompanied by a Society representative; |
|
(ii) |
the purpose of the meeting including a general outline of the issues; |
|
An email notice will be sent to the Society Office. This shall be considered a confirmation of receipt of the notice above. |
| 17.4 |
Disciplinary penalties resulting in a suspension without pay will not be imposed until a final decision (agreement between the Society and Management, or an arbitrator's decision) has been reached. |
|
The above is contingent upon the following:
- The case is heard at the next JGRC, respecting timelines for brief exchange
- If unresolved, heard at the next available arbitration date
|
| 18 |
PRINCIPLE AND PROCESS OF PRIOR INVOLVEMENT IN JURISDICTIONAL ISSUES/DISPUTES |
| 18.1 |
OPG should advise The Society and provide an opportunity for its involvement at the appropriate organizational level (e.g., OPG, Business Unit, Division, Station) prior to making any final decision which could adversely affect The Society's jurisdiction. |
|
The Society's jurisdiction may be adversely impacted by an organizational or operational changes, including technological changes, workload changes, and business process re-engineering. The Society's jurisdiction is adversely impacted by any assignment of functions customarily done by Society-represented employees to persons or employees outside of its bargaining unit and/or reduces the proportion of work customarily performed by Society-represented employees relative to that done by persons or employees outside of its jurisdiction. |
| 18.2 |
Prior to making a final decision that could adversely impact The Society's jurisdiction, at the request of either party, OPG will establish a joint team with The Society which will review relevant facts and issues. In the event that the jurisdiction of another union is affected by this decision, The Society and OPG will strive to include a representative of this union in the review team. The criteria considered by the joint or tripartite review team will include the following:
- representational rights
- skill and training
- safety
- economy and efficiency
- past practice
|
| 18.3 |
The parties agree to make their best efforts to reach consensus on issues affecting The Society's jurisdiction which will form the basis of recommendations to Senior Management. |
| 18.4 |
In the event that consensus is not reached on issues affecting The Society's jurisdiction or Senior Management rejects the joint/tripartite team's recommendation(s), OPG will make the final decision and will provide written rationale for the decision to The Society. |
| 18.5 |
The principle and process set out in 18.1 to 18.4 are not grievable with the exception of OPG final decision. The recommendations of joint tripartite teams are without prejudice and cannot be relied upon at grievance/arbitration or before any labour relations board.
|
| 19 |
JOB CHALLENGES |
Job Challenge disputes not resolved through the normal process or through the process outlined in LOU#112 will be subject to the Arbitration provisions (Step 3) of Article 16 of the Collective Agreement, for final and binding resolution.
|
| 20 |
PERFORMANCE PAY COMPLAINTS |
| 20.1 |
The following complaints may be processed through the grievance/arbitration procedure in accordance with Article 16. These are: |
|
a) |
complaints concerning the interpretation or application of Article 21 ("Performance Appraisal Feedback and Advanced Warning of Reduced Performance Pay Standing"); |
|
b) |
complaints from employees whose performance standing is below the reference point (100%) of the job and who have been held at the same level, in the same position, for two consecutive annual performance appraisals.; |
|
c) |
complaints from The Society on policy matters concerning the interpretation, application and administration of the Performance Pay Plan. |
| 20.2 |
In the situation where an employee submits a grievance in accordance with Section 20.1(b) above which ends up going to arbitration, the powers of the arbitrator will be as follows: |
|
An arbitrator appointed to hear a performance appraisal grievance shall have the remedial authority to either remit the matter back for reappraisal or make an award that conforms to the norms of the Performance Pay Plan as applied for the year in question. |
| 20.3 |
All other complaints concerning an employee's performance appraisal will be heard through an internal resolution process. This process consists of the following three consecutive steps: |
|
Step 1: After a 24 to 48 hour buffer period of receiving the assessment, an employee who disagrees with the assessment should meet with his/her supervisor to attempt to resolve the disagreement. |
|
Step 2: Failing resolution at Step 1, the employee should meet with his/her supervisor, the second-level supervisor and the Human Resources Officer. The Society Delegate (or his/her alternate) may attend this meeting if the employee wishes. |
|
Step 3: Failing resolution at Step 2, if the employee wishes to continue the process, he/she and his/her direct supervisor will make a presentation to the Line Director and The Society Unit Director (or his/her alternate). The Line Director and The Society Unit Director will make every effort to resolve the problem within five (5) working days of the presentation. If a joint resolution cannot be reached, the performance assessment, which includes the employee's comments, will stand as a record of that year's appraisal. |
|
The parties shall endeavour to resolve issues at the lowest possible level.
|
| 21 |
PERFORMANCE APPRAISAL FEEDBACK AND ADVANCED WARNING OF REDUCED PERFORMANCE PAY STANDING |
| 21.1 |
Principles |
|
21.1.1 |
Supervisors are expected to ensure all employees understand what is expected of them, encourage ambitious goal setting, stress accountability for results, and tolerate honest mistakes but not poor performance. |
|
21.1.2 |
The Performance Appraisal process will be conducted in an atmosphere of mutual respect and empathy to encourage a positive two-way communication session. The employee should be given adequate notice and time to prepare. |
|
21.1.3 |
The supervisor will endeavour to provide recognition to employees commensurate with contribution and performance. Performance expectations should be guided by the job document, work program of the unit and the employee's length of service in the job. |
|
21.1.4 |
The supervisor should communicate on an ongoing basis and counsel the employee toward improved performance. Also, opportunities for improvement, training, performance counseling, assistance and sufficient opportunity and time to raise performance to the level required, should be part of the building blocks for the future. |
|
21.1.5 |
The employee is responsible for recognizing that a problem exists and making a joint commitment to improve performance, or to jointly look at other alternatives, such as job skill match, etc. |
| 21.2 |
Every employee has the right to an annual assessment with written feedback of his/her work over the preceding twelve (12) months. |
| 21.3 |
Employee must be provided with a written record of the performance appraisal. Employees should receive written confirmation that the performance appraisal has taken place, and a statement of the employee's performance pay standing as of the next performance pay adjustment date. |
| 21.4 |
If an employee's performance level may result in a reduction in performance pay standing, the employee will be given written notice at least six (6) months in advance of any contemplated action, setting out as precisely as possible: |
|
a) |
the unsatisfactory performance; |
|
b) |
what is required to rectify the unsatisfactory performance; |
|
c) |
the actions that may be taken if improvement does not occur.
|
| 22 |
ROLE OF SUPERVISORS |
| 22.1 |
As members of OPG managerial staff, supervisory employees have a role to play in the resolution of disputes in their work units before they reach the grievance/arbitration procedure. In the event that a dispute reaches the grievance/arbitration procedure, The Society agrees not to discriminate against supervisors who represent Management in Society grievances. |
| 22.2 |
The Society will exclude supervisors directly involved in a particular grievance from the decisions on the referral of the grievance through the grievance/arbitration procedure. Supervisors will not act on behalf of The Society in matters associated with a particular grievance where the grievance has been lodged by another member(s) who reports to the particular supervisor. |
