The 95/20 rule is retiring... a new single limit will apply.
If you're a retiree now, or you're thinking about retirement, you'll want to pay close attention to the changes in the rules regarding post-retirement work. More information is available by reading the OTF Communique at this link:
http://www.otffeo.on.ca/english/media_room/communique/commvol15no6.pdf
Or, you can visit the Ontario Teachers' Pension Plan website at www.otpp.com
Monday, May 10, 2010
Monday, May 3, 2010
Attendance Program Update
What follows is a synopsis of the attendance program update that was shared with Workplace Stewards at their training session on April 22nd. The current attendance management program has elicited feelings of fear and frustration for members, particularly those who have been flagged under the program. Correspondence from the local throughout this year has been aimed at making members more aware of their rights and responsibilities.
Attendance Program Update
The Ministry of Education audited school boards last year and is under the belief that cost savings are available through attendance programs, and that any additional funds that can be accessed are especially useful in a time of recession and fiscal restraint. Attendance programs are commonplace in many employment sectors and have been around for at least 20 years. A number of ETFO locals have had attendance programs in place for several years. However, with the memo from the ministry asking school boards to consider the program more boards, including ours, have decided to implement the program this school year.
The attendance program was officially announced by the DDSB in December and rolled out in January. Certain members began receiving phone calls that their attendance pattern was questionable and they were invited to a meeting.
Calls started to come in to the office requesting union representation. Our initial position was that these meetings should only be held during the instructional day and booked using a similar system to the disability management program (via a Lotus Notes invitation). The Board vigorously resisted these two points and insisted meetings be booked directly with the teacher, who would then contact the union for representation, and that meetings would be held outside the instructional day.
This standoff caused a great deal of stress for the members who were initially flagged. Further complicating our initial stand was that both CUPE and OSSTF had made no issue with how meetings were being booked or at what time they were being held. Their position unfortunately undermined our local’s position with the DDSB.
The board notified me that some of our colleagues had met with them regarding their attendance, and they had chosen of their own accord to do so without union representation. Their reasoning being that they did not want to get caught in a tug of war between the board and union.
This information combined with a new threat that members who refused to be present at an attendance program meeting would ultimately receive letters of insubordination, meant a decision had to be made – a decision that would require legal counsel’s input to protect members.
I conferred at length with both our ETFO staff officer and legal counsel on the matter - it was determined that we should alter our position on meeting times and adopt a time frame of 20-30 minutes on either side of the instructional day or during the additional 20 minutes at lunch. This decision was shared with the DDSB, and attendance meetings began with members in February.
Our policy grievance with respect to the attendance program (filed in January) was strongly worded – this is common practice for all grievances. While ETFO’s grievance sought to have the program nullified, another employee group’s grievance unfortunately asked only for consultation to improve the attendance program.
As your president and grievance officer, I once again had discussions with legal counsel and our provincial ETFO staff officer to decide whether to put the grievance on hold in order to have discussions with the Board, or whether to proceed with a referral to arbitration.
This is the same process and strategy that has been followed for every grievance when deciding how to proceed. These decisions have always been, and continue to be, reported to executive members through executive meetings and to the membership during general meetings and through e-updates.
Discussions were held with the Board in March to provide input for revisions to the program. Your three released officers (president and two VPs) attended two meetings with board personnel. The first meeting was to discuss concerns with the program and the process overall. This mirrored discussions from the initial grievance meeting. The second meeting provided specific suggestions to improve the program - input was sought from your vice-presidents and incorporated into the submission that was given to the Board.
All employee groups have now met with the DDSB to provide feedback on revising the attendance program. The DDSB has indicated it will revise the program and provide a draft document to the employee groups this spring for review and further input. It is the DDSB’s intention to introduce the revised program for September 2010.
Based on the content of the revised attendance program document, the Local will once again confer with provincial ETFO and legal counsel regarding the status of the grievance.
At the Steward training, we were fortunate to have Howard Goldblatt as our guest speaker. Howard Goldblatt is a founding partner of Sack Goldblatt Mitchell LLP, the leading labour law firm in Canada. Mr. Goldblatt has practiced labour law for over 30 years and is our legal counsel for this grievance. Mr. Goldblatt answered the following questions during the Steward training:
1. If the collective agreement provides for 20 sick days per year (plus banking any unused days), how can the board "limit" the number of days used by members to 15 , or whatever the threshold might be? Doesn't this violate our collective agreement?
The Board is not “limiting” the number of days that can be used but is, rather, establishing thresholds which will trigger the attendance management program. Legally, sick leave is not a “right”, it is a benefit to be used to provide for income replacement in the event of illness. The fact that there are 20 days under the collective agreement does not give the employee the right to take those days, absent a bona fide illness, or remove from the employer the right to inquire appropriately as to the use of sick days.
2. Why are we having talks with the Board about improving the attendance program, if the original remedy in our grievance was to have the attendance program thrown out?
Arbitrators have almost consistently upheld the right of employers to introduce attendance management programs, absent specific language in the collective agreement that prohibits it. The issues, therefore, usually at arbitration relate to the appropriateness of the program in areas such as (i) intrusion into medical confidentiality; (ii) whether the thresholds are reasonable; (iii) whether the requirement to produce medical certificates violates the collective agreement; (iv) whether the plan is disciplinary or non-disciplinary etc. It is extremely unusual for an arbitrator to throw out the program. In most cases, the arbitrator will order development of an appropriate program involving discussions with the union.
3. Why can't we just move the grievance forward, whether or not we're having discussions with the Board?
There is nothing to stop the grievance from moving forward while discussions occur, but to what end. The grievance could be referred to arbitration but, if the hearing date comes up too rapidly, we would likely be where we are now. At some point the employer may well say “this is it” and that program is the one that would be before an arbitrator for consideration. There is little use, practically, in taking a program to arbitration which may well be revised (by agreement or unilaterally) before you get there. We may need to decide to go to arbitration, depending on how the discussions resolve themselves.
4. How have similar grievances on attendance programs (in ETFO and beyond) been settled? Have there been favorable awards in arbitration? Do many grievances even make it to arbitration?
My experience is that even where cases do make it to arbitration, the argument is around the edges rather than as to the existence of the program. I have a number of cases in many sectors, private and public, that involve attendance management. Most recently, my experience has been that the parties do reach an agreement; the do’s and don’ts of these plans are fairly well developed by now. I know of only one case where the entire plan has been tossed out (City of London) but, even there, the arbitrator did not preclude the employer from introducing a new plan and they are now working on the details of that plan with the unions.
Bottomline: It’s better to get a plan that’s fair to employees, rather than leave it to others to decide our fate.
Attendance Program Update
The Ministry of Education audited school boards last year and is under the belief that cost savings are available through attendance programs, and that any additional funds that can be accessed are especially useful in a time of recession and fiscal restraint. Attendance programs are commonplace in many employment sectors and have been around for at least 20 years. A number of ETFO locals have had attendance programs in place for several years. However, with the memo from the ministry asking school boards to consider the program more boards, including ours, have decided to implement the program this school year.
The attendance program was officially announced by the DDSB in December and rolled out in January. Certain members began receiving phone calls that their attendance pattern was questionable and they were invited to a meeting.
Calls started to come in to the office requesting union representation. Our initial position was that these meetings should only be held during the instructional day and booked using a similar system to the disability management program (via a Lotus Notes invitation). The Board vigorously resisted these two points and insisted meetings be booked directly with the teacher, who would then contact the union for representation, and that meetings would be held outside the instructional day.
This standoff caused a great deal of stress for the members who were initially flagged. Further complicating our initial stand was that both CUPE and OSSTF had made no issue with how meetings were being booked or at what time they were being held. Their position unfortunately undermined our local’s position with the DDSB.
The board notified me that some of our colleagues had met with them regarding their attendance, and they had chosen of their own accord to do so without union representation. Their reasoning being that they did not want to get caught in a tug of war between the board and union.
This information combined with a new threat that members who refused to be present at an attendance program meeting would ultimately receive letters of insubordination, meant a decision had to be made – a decision that would require legal counsel’s input to protect members.
I conferred at length with both our ETFO staff officer and legal counsel on the matter - it was determined that we should alter our position on meeting times and adopt a time frame of 20-30 minutes on either side of the instructional day or during the additional 20 minutes at lunch. This decision was shared with the DDSB, and attendance meetings began with members in February.
Our policy grievance with respect to the attendance program (filed in January) was strongly worded – this is common practice for all grievances. While ETFO’s grievance sought to have the program nullified, another employee group’s grievance unfortunately asked only for consultation to improve the attendance program.
As your president and grievance officer, I once again had discussions with legal counsel and our provincial ETFO staff officer to decide whether to put the grievance on hold in order to have discussions with the Board, or whether to proceed with a referral to arbitration.
This is the same process and strategy that has been followed for every grievance when deciding how to proceed. These decisions have always been, and continue to be, reported to executive members through executive meetings and to the membership during general meetings and through e-updates.
Discussions were held with the Board in March to provide input for revisions to the program. Your three released officers (president and two VPs) attended two meetings with board personnel. The first meeting was to discuss concerns with the program and the process overall. This mirrored discussions from the initial grievance meeting. The second meeting provided specific suggestions to improve the program - input was sought from your vice-presidents and incorporated into the submission that was given to the Board.
All employee groups have now met with the DDSB to provide feedback on revising the attendance program. The DDSB has indicated it will revise the program and provide a draft document to the employee groups this spring for review and further input. It is the DDSB’s intention to introduce the revised program for September 2010.
Based on the content of the revised attendance program document, the Local will once again confer with provincial ETFO and legal counsel regarding the status of the grievance.
At the Steward training, we were fortunate to have Howard Goldblatt as our guest speaker. Howard Goldblatt is a founding partner of Sack Goldblatt Mitchell LLP, the leading labour law firm in Canada. Mr. Goldblatt has practiced labour law for over 30 years and is our legal counsel for this grievance. Mr. Goldblatt answered the following questions during the Steward training:
1. If the collective agreement provides for 20 sick days per year (plus banking any unused days), how can the board "limit" the number of days used by members to 15 , or whatever the threshold might be? Doesn't this violate our collective agreement?
The Board is not “limiting” the number of days that can be used but is, rather, establishing thresholds which will trigger the attendance management program. Legally, sick leave is not a “right”, it is a benefit to be used to provide for income replacement in the event of illness. The fact that there are 20 days under the collective agreement does not give the employee the right to take those days, absent a bona fide illness, or remove from the employer the right to inquire appropriately as to the use of sick days.
2. Why are we having talks with the Board about improving the attendance program, if the original remedy in our grievance was to have the attendance program thrown out?
Arbitrators have almost consistently upheld the right of employers to introduce attendance management programs, absent specific language in the collective agreement that prohibits it. The issues, therefore, usually at arbitration relate to the appropriateness of the program in areas such as (i) intrusion into medical confidentiality; (ii) whether the thresholds are reasonable; (iii) whether the requirement to produce medical certificates violates the collective agreement; (iv) whether the plan is disciplinary or non-disciplinary etc. It is extremely unusual for an arbitrator to throw out the program. In most cases, the arbitrator will order development of an appropriate program involving discussions with the union.
3. Why can't we just move the grievance forward, whether or not we're having discussions with the Board?
There is nothing to stop the grievance from moving forward while discussions occur, but to what end. The grievance could be referred to arbitration but, if the hearing date comes up too rapidly, we would likely be where we are now. At some point the employer may well say “this is it” and that program is the one that would be before an arbitrator for consideration. There is little use, practically, in taking a program to arbitration which may well be revised (by agreement or unilaterally) before you get there. We may need to decide to go to arbitration, depending on how the discussions resolve themselves.
4. How have similar grievances on attendance programs (in ETFO and beyond) been settled? Have there been favorable awards in arbitration? Do many grievances even make it to arbitration?
My experience is that even where cases do make it to arbitration, the argument is around the edges rather than as to the existence of the program. I have a number of cases in many sectors, private and public, that involve attendance management. Most recently, my experience has been that the parties do reach an agreement; the do’s and don’ts of these plans are fairly well developed by now. I know of only one case where the entire plan has been tossed out (City of London) but, even there, the arbitrator did not preclude the employer from introducing a new plan and they are now working on the details of that plan with the unions.
Bottomline: It’s better to get a plan that’s fair to employees, rather than leave it to others to decide our fate.
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