Thursday, January 11, 2024
AMAPCEO is pleased to report that the union has successfully challenged the Ontario Public Service (OPS) employer’s use of the Secretary of Cabinet (SoC)’s March 2022 Return to Office memos as the sole rationale for declining a request to work remotely for more days than are permitted under the memos.
The arbitrator did not award a set number of days of remote work; however, he found that restricting remote work to two days per week because of the memos was a violation of the Collective Agreement. This decision has precedential impact on all other cases that explicitly involve the SoC’s March 2022 memo.
In this specific case, AMAPCEO members at the Toronto Regional Office of the Ministry of Children, Community and Social Services—22 of whom participated in this grievance—were already working remotely prior to the covid-19 pandemic. At the time of the pandemic outbreak, these members were working remotely three days per week, with an agreed upon plan to increase to four days when employees returned to the office. However, the planned increase to four days of remote work did not occur because of the Secretary of Cabinet’s memos, which require more frequent attendance at the office.
The decision
In his decision on this specific case, the arbitrator of the challenge stated:
“I am satisfied the evidence establishes that following the SOC’s Memos, the Employer had adopted a rigid policy of not agreeing to AWAs for more than three days per week of remote work.”
The arbitrator also found that the “rigid policy” the employer adopted following the SOC memos violated the AMAPCEO Collective Agreement:
“I am satisfied that the evidence establishes that the TRO’s post pandemic office standard of three days per week of remote work also in general removed the obligation of managers to consider in good faith requests for an AWA which provided for more days of remote work. To the extent that it did so, I find it was inconsistent with and in breach of Article 47 of the Collective Agreement.”
The arbitrator stated that the employer cannot issue a directive that removes a manager’s obligation under Article 47 of the Collective Agreement to consider each AWA request in good faith.
He described a “good faith” consideration as one that rejects all irrelevant circumstances and considers all relevant circumstances—the latter including the employee’s individual circumstances and the operational viability of the worksite. He acknowledged that OPS-wide factors, including directives from the SOC, may be relevant to the operational viability of a worksite, but said that they cannot “trump” the other relevant factors.
You can read the arbitrator’s decision in full here (sign-in required) »
Going forward
We do not anticipate that this recent decision means that the employer will suddenly stop denying AWA requests. However, this finding will remove what has, until now, been the most frequently used grounds for limiting or denying AWA requests. Under Article 47.1 of the Collective Agreement, the employer must consider, in good faith, both the request and the operational viability of the workplace.
We are currently arguing another case in which there is evidence that the SOC memos lead to the denial of an employee’s AWA request. There are many other similar disputes underway with several cases in the early stages of the arbitration process.
AMAPCEO and our legal team will continue to carefully examine each dispute, moving forward with the strongest cases to establish precedents that elaborate on members’ rights under Article 47.
“Within Article 47 of our Collective Agreement, the OPS employer purports to supporting flexible work arrangements and the building of a flexible work culture, in an effort to respond to changing workplace expectations of employees, to boost employee engagement, to retain high-performing employees, and to further demonstrate their commitment to being a modern employer,” said President Dave Bulmer.
“AMAPCEO intends to hold them to that commitment. Our goal is to persevere until all illegitimate forms of denial have been overturned.”
As always, AMAPCEO will continue to keep members informed as these cases progress. We encourage to keep an eye on your inbox and on the AMAPCEO website.
Finally, in the coming weeks, AMAPCEO staff will be proactively reaching out to any additional members whose AWA requests may be impacted by this arbitration’s finding.