An arbitrator has dismissed a union grievance challenging the Ontario Clean Water Agency’s decision to assign Transmission Maintenance Employees (TMEs) to a five-day, eight-hour schedule (5 x 8), rather than the four-day, 10-hour arrangement (4 x 10) sought by some workers.
The decision underscores how management rights and collective agreement provisions on work arrangements may interact when disputes arise over compressed work week (CWW) scheduling.
The dispute centred on whether the employer contravened Articles 2, 3 and 10 of a collective agreement. Article 2 deals with management rights, Article 3 addresses “no discrimination/employment equity” and Article 10 governs “work arrangements,” including the possibility of alternative schedules. An existing Memorandum of Agreement (MOA) mandated a 5 x 8 schedule for TMEs, although a small number of legacy employees had historically continued to work a 4 x 10 shift.
According to the ruling, the union sought a remedy directing the employer to grant TMEs the option of working four 10-hour days per week. Those who filed the grievance argued they should not be required to follow the MOA’s 5 x 8 provisions. The union presented two main claims. First, it asserted the employer was “estopped” from compelling TMEs to move to the 5 x 8 schedule, alleging a local manager had previously told C.E., one of the grievors, “we will not change the shift.” Second, the union argued the new schedule had been introduced as a “reprisal” against negotiations that resulted in a compressed work arrangement for a different group (operations) in March 2023.
Details lacking
The arbitrator noted, however, that the union did not provide sufficient details about the alleged conversation with the local manager. In particular, no date, location or other specifics were given to verify the comment, and the employer denied it was ever made. Similarly, the union supplied no particulars supporting a claim of reprisal, offering no evidence to establish that the employer had intended to punish the TMEs for the negotiations.
During the hearing, it emerged that a relevant MOA concerning compressed work week arrangements came up for renewal around the same time the union had raised concerns about different scheduling for TMEs. In 2014, TMEs generally worked a 4 x 10 schedule. By about 2019, an MOA required new TMEs to be placed on a 5 x 8 schedule while some legacy employees continued on 4 x 10. In March 2023, the union told the employer it believed having TMEs on two separate schedules was causing workplace friction. The employer then proposed that all TMEs move to a 5 x 8 arrangement. After discussions, the employer signed the renewal MOA in early April 2023, including the 5 x 8 term, and notified the union that legacy employees would be required to switch. C.E. signed the MOA for the union later that same month, and the shift change took effect in late May 2023.
Management right
In assessing the union’s arguments, the arbitrator cited a decision in OPSEU (Sutherland) and Ontario (Ministry of Labour), (2008), 179 L.A.C. (4th) 387. That earlier ruling explained that Article 10 of the collective agreement “does not impose any obligation on the employer to enter into a CWW arrangement” but instead sets out “a mechanism for the parties to mutually arrive at ‘other arrangements’ … vis a vis a variable week.” In other words, the employer has a management right to negotiate or decline a CWW. The arbitrator stated, “I have no power to order the Employer to enter into a memorandum of agreement concerning a compressed work week schedule unless there is an allegation that the Employer’s exercise of its management right affected a right set out in the Collective Agreement.”
On the issue of estoppel, the arbitrator found it “not sustainable in the face of the fact that the Union signed the renewal MOA on April 23, 2023, after the date on which it was put on notice by the Employer that the legacy employees would be required to work the 5 x 8 shift.” That notice, provided on April 20, meant union officials were aware of the proposed change before finalizing the MOA. This undercut the union’s claim that any earlier verbal commitment by local management could prevent the employer from moving all TMEs to the 5 x 8 schedule.
Regarding reprisal, the arbitrator observed that “the reprisal argument is not particularized and there is no basis on which a reprisal could be found.” While the union claimed the schedule change was punitive, it failed to produce evidence demonstrating intent or causation linking the March 2023 negotiations to the employer’s scheduling decision.
After reviewing the submissions, the arbitrator dismissed the grievance in its entirety, noting that no violation of the collective agreement had been established. The decision underscored that the employer remains within its rights to negotiate CWW arrangements or decline to continue them, so long as there is no improper motive or breach of rights protected by the collective agreement.
For more information, see Ontario Public Service Employees Union (Eckert et al) v Ontario (Ontario Clean Water Agency), 2024 CanLII 129651 (ON GSB).
