Canadian Labour Reporter

June 29, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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include CRC information along with non-conviction information about sexual or violent offences for which an individual has received a record suspension or pardon. VSCs were created to protect chil- dren and vulnerable persons. Barrie didn't enforce this re- quirement until 2018, when it in- dicated its intention to do so. On Feb. 21, 2018, MVT sent a policy notice to all staff that said employees hired on or before July 1, 2017 had to renew their VSC or CRC by March 21. Going forward, non-driver po- sitions had to get a CRC prior to hiring and renew it every five years with an annual declaration, while driver positions had to get a VSC prior to being hired, with a CRC every three years and an annual declaration. The union grieved the policy, arguing that any criminal back- ground check was "an unjusti- fied invasion of privacy." MVT countered that employees were involved with the protection and security of people and assets, and bus drivers had significant contact with vulnerable people. The collective agreement ac- knowledged that MVT had the right to change "any policies, rules and regulations governing employees" if such changes were needed to comply with the con- tract with the city. The arbitrator noted that MVT's new policy didn't have any controls over how the informa- tion gained from the background checks could be used or protection from misuse of it. This was a sig- nificant consideration in assessing the privacy issue. MVT used contact with vul- nerable people as reason for re- quiring VSCs for bus drivers, but the arbitrator found that public transportation was not a vulner- able sector. The Criminal Records Act's provision for VSCs defines "vulnerable person" as someone who is in a position of dependency on others and the act only allows those responsible for the well- being of a child or vulnerable per- son to request a VSC. While some of MVT's specialty services may transport vulnerable persons, the need for VSCs should be evaluated on a case-by-case basis rather than subjecting all drivers to an "overly broad and wholly unreasonable" requirement," said the arbitrator. "While it is arguable that there are drivers who, on occasion, find themselves on a bus with a vulner- able person, there is nothing to suggest that such a circumstance is common or, more importantly, that such a circumstance places the vulnerable person 'in a posi- tion of dependency' on the driver," said the arbitrator. The arbitrator also found that requiring CRCs for existing em- ployees was problematic and could be "a very significant" pri- vacy rights violation without indi- vidual allegations of criminal con- duct. As for requiring CRCs for job candidates, the arbitrator made no finding, noting that "the act of hir- ing employees does not fall within the purview of an arbitrator unless the collective agreement expressly deals with same." Based on the requirements for VSCs for drivers and CRCs for existing employees, the arbitrator declared the policy to be in breach of the collective agreement. Reference: MVT and ATU (Vulnerable Sector Checks). Dana Randall — arbitrator. Lisa Stam for employer. Riley Palmer for union. April 21, 2020. 2020 CarswellOnt 6995 Transit operator didn't show checks worth privacy invasion Recognition scheme done without union consultation used a third-party information technology platform with various forms of recognition and rewards. The most common type of award involved points called "Steelies" that employees could receive from their direct supervi- sors. Each supervisor had a budget of Steelies based on the number of direct reports they had and could award points at their discretion. Steelies weren't redeemable for cash but could be exchanged for merchandise on an online plat- form, including prepaid credit cards. The points didn't expire but could only be redeemed by some- one who was an Algoma employ- ee. Awards obtained by redeeming points were reported as taxable benefits. Before long, the program be- gan to be abused, as some people traded or sold the points to other employees. Algoma didn't moni- tor the system for suspect redemp- tions and the system didn't flag discriminatory behaviour. The union filed a grievance re- lated to the Tapping In program, claiming Algoma's unilateral im- plementation of it was a breach of the company's obligation to rec- ognize the union as the sole bar- gaining agent for employees and a breach of its profit-sharing obli- gation under the collective agree- ment. The union argued that its col- lective bargaining emphasized equality among all Algoma em- ployees. The collective agree- ment standardized hourly wage scales and classifications, along with cost-of-living adjustments and other non-wage aspects of compensation such as credits for workers who didn't need safety boots that were equivalent to the safety boot allowance. Introduc- ing the Tapping In program and the awarding of Steelies at supervi- sors' discretion "undermined the equality principle in the collective agreement and resulted in some members receiving greater com- pensation than others for doing the same work," said the union. The union also argued that the cost of the program detracted from the pool available for distri- bution to its members through the profit-sharing plan, as the collective agreement set out a formula based on the annual in- come from Algoma's Sault Ste. Marie operations. The union said the program's cost should be ex- cluded from the calculation of net income. The arbitrator noted that the collective agreement's general ar- ticle stated that Algoma and the union were committed to "a mu- tually respectful, consultative and participative relationship," but the unilateral introduction of the Tap- ping In program "might under- standably appear from the union perspective to have added insult to injury." However, the arbitrator also noted that the collective agree- ment didn't expressly forbid the introduction of a recognition and rewards program and it allowed Algoma the right to manage em- ployees as it saw fit unless specifi- cally outlined in the agreement. This included "an unfettered dis- cretion to make decisions, includ- ing bad decisions" that could affect total revenue, regardless of the profit-sharing arrangement. With that in mind, the arbitra- tor found that the Steelies were a form of compensation beyond what was provided for in the col- lective agreement, particularly since rewards were taxable ben- efits. Ultimately, the arbitrator deter- mined that Algoma breached its obligation to consult or negotiate the introduction of the program with the union, as well as the com- pensation provisions of the collec- tive agreement. The arbitrator declared that Algoma's Tapping In program breached the union's representa- tion rights and ordered the com- pany to end the program, cancel any outstanding Steelies that hadn't been redeemed, and ne- gotiate with the union to deter- mine a monetary remedy — the arbitrator suggested adjusting the profit-sharing pool by adding the total value of Steelie redemptions, then reducing individual entitle- ments by any redemptions they had made. Reference: Algoma Steel and USW, Local 2251 (19-0431). Paul Craven — arbitrator. Jennifer Hodgins for employer. March 23, 2020. 2020 CarswellOnt 4265

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