An arbitrator ruled this week that an addendum that the RPL began adding to some job postings a year ago is contrary to the collective agreement and therefore invalid.
In a decision released August 19, 2014, Arbitrator Daniel Ish, Q.C., upheld a CUPE Local 1594 grievance that was filed in July 2013 when the RPL posted two competitions for three part-time (term) Public Service Clerks that included the following italicized and bolded addendum:
“Application to this competition will be considered as consent to be scheduled in excess of three (3) Saturdays and/or Sundays in four (4) as described in Article 21.05 (d) of the Collective Agreement.”
In reaching this decision, Mr. Ish wrote, “The purpose of Article 21.05(d) is clearly to give part-time employees the benefit of having one weekend per month when they do not have to be scheduled to work. It is generally recognized that most employees, perhaps not all, would prefer not to work weekends or at least prefer not to work all weekends. Article 21.05(d) was negotiated by the parties to place a fetter on the management’s right and ability to schedule part-time employees…The addendum placed in the job postings…in effect overrides the clear and unambiguous right given to individual employees in Article 21.05(d).”
Mr. Ish continued, “The addendum deems that an application for a posted position is consent under Article 21.05(d). The effect of the addendum is to only hire employees into these part-time positions that agree to consent. In my view this pre-condition (to even being considered for the job in question) directly circumvents the purpose and intent of Article 21.05(d).”
“In addition I agree with the Union argument that consent obtained through the application process is not really a voluntary consent or agreement. There is no doubt that Article 21.05(d) contemplates an individual employee’s consent without the involvement of the Union but to require consent as a condition of making a job application removes the ability to consent free and clear of any consequences. The consequence of not providing “consent” in this manner (ie. as part of the application for the job) is not to be considered for the position which obviously removes an employee’s ability to obtain the position. There is nothing in Article 21.05(d) that suggests the Employer can impose conditions on an employee’s right not to work four weekends in four and the attempt to link the ability to obtain the position with the consent is in my view an unwarranted condition attached to Article 21.05(d), as well as a removal of the voluntariness or freedom for an employee to give consent.”
The arbitrator also found that the RPL’s actions violated other provisions of the collective agreement. Mr. Ish found merit in the union’s argument that the addendum in the job posting undermined CUPE Local 1594’s role as the sole bargaining agent of employees and concluded that “to place on a job posting consent as a necessary pre-condition to obtaining the job is in effect negotiating with the individual employee. The imposition of the pre-condition to obtaining employment goes well beyond the consent contemplated by Article 21.05(d) to in effect add a term and condition of employment for part-time employees.”
In upholding the grievance, Mr. Ish ruled that “The addendum contained on the three job postings in question is invalid and the Employer must cease from using it again in future similar postings. The result is that the three successful applicants who obtained the positions which are the subject of this grievance are able to exercise their collective agreement rights under Article 21.05(d)…”
To view the complete arbitration decision click here.