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HomeMy WebLinkAbout2000-0447.Union.01-03-21 Decision ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE: (416) 326-1396 GSB #0447/00, 1042/00 OPSEU#00U072, 00U130 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE D. J. D. Leighton Vice Chair FOR THE Richard Blair, Counsel GRIEVOR Ryder, Wright, Blair & Doyle Barristers and Solicitors FOR THE Len Marvy, Senior Counsel EMPLOYER John Smith, Senior Counsel Legal Services Branch Management Board Secretariat HEARING March 9, 2001. 2 DECISION The Union has grieved that the Employer breached section 5.3 of Appendix 18 of the collective agreement between the parties in forwarding RFP’s (Request for Proposal) for three detention centres – Genest, Project Dare and Syl Apps. The parties agreed that in each case the receiving employers do not recognise seniority rights for the purposes of lay-off and job competitions. The Union’s view was that this breaches section 5.3 which provides: For Employees electing to be included in the RFP, the Employer shall include, in the RFP, the mandatory requirement that proponents must commit in their proposal to make job offers to all of the identified classified OPSEU employees. Such job offers shall be at a salary of at least 85% of the respective employee's weekly salary at the time of the issuance of the RFP and recognise the service and seniority in the Ontario Public Service (OPS) of each employee for the purpose of qualification for vacation, benefits (except pension), layoff, job competition, severance and termination payments to the extent that they are provided in the proponent's work place. The Employer took the position that employees were entitled to recognition of their OPS seniority for vacation, benefits (except pension) lay-off and job competition, severance and termination payments only to the extent that they are provided in the receiving employer’s workplace. The Union’s view was that the phrase “to the extent that they are provided in the proponent’s work place” modifies only the last two items on the list, i.e. severance and termination. On December 6, 2000, the Board rendered a decision that the qualifying clause only applied to the last two items on the list, i.e. severance and termination payments The parties have now asked for a further interpretation of section 5.3. The Employer takes the position that without the modifying clause, there is no clarity as to what the Employer must include in the RFP, and that it must have a specific answer to what the terms of section 5.3 require. The Union takes the position that the collective agreement provides the answer – that 3 core protections are clear for both lay-off and job competition. The parties themselves have been unable to reach an agreement on how it is to be understood, and therefore have asked the Board to interpret section 5.3. The Union’s Submission Mr. Blair argued for the Union that detailed provisions on lay-off and job competition exist in the collective agreement between the parties, but it is the “core” protections that section 5.3 requires the Employer to include in RFP’s. The core protection for job competitions is Article 6 of the collective agreement and specifically Article 6.3.1 which provides that if candidates in a job competition are relatively equal, then the most senior person gets the job. The core protection for lay-off based on seniority gives protection and preference to an employee depending on the date of hire. Provided that the individual can do the work the first hired is the last one laid off. The Union argued further that seniority is a concept that is recognised not only in the unionised workplace, but also in the non-unionised workplace. The concept of protection and benefit rooted in the date of hire is something, which can be included in a contract of employment. Counsel cited the Employment Standards Act, R.S.O. 1990, c.E.14 (as amended) as an example of legislative recognition of the concept of seniority outside the unionised workplace. Section 1 provides a definition of inter alia “establishment:” Means a location at which the employer carries on business but, whenever the employers carries on business at more than one location, separate locations constitute one establishment if, (a) the separate locations are located within the same municipality, or (b) one or more employees at a location have seniority rights that extend to the other location by virtue of a collective agreement or written contract of employment whereby the employee or employees may displace another employee of the same employer. (Emphasis added) Sections 32(1) and 43 of the ESA also refer to seniority outside a collective agreement. In Counsel’s submission, this is clear recognition that the concept of seniority can exist outside a collective agreement. 4 Counsel for the Union also argued that the concept of lay-off exists outside of an unionised workplace. In Girling v. Crown Cork and Seal Canada Inc. [1995] B.C.J. No. 1873 the B.C. Court of Appeal approved a lower court’s decision which found that lay-off in a non- unionised setting, without express provisions in an employment contract or legislative protection for recall meant loss of employment. It is a “euphemism which connotes loss of employment without attribution of wronging doing to the employee.” Mr. Blair argued that since lay-off is a concept which exists outside of collective bargaining then there is no impediment to requiring protections against lay-off based on seniority to be included in the RFP. The Employer’s Submission Counsel for the Employer, Mr. Marvy, argued that the issue before the Board was what rights should be imported into section 5.3 of Appendix 18. Counsel did not disagree with Union Counsel's argument that recognition of seniority for the purposes of job competitions and lay-off may and does exist outside the unionised workplace. But Mr. Marvy was of the view that since the Union provided the Board with no concrete meaning of seniority as it relates to job competition or lay-off, then I have to choose between the Employer’s interpretation or my own. Counsel emphasised that this issue is before the Board in a rights based dispute – not as interest arbitration, and that it has no jurisdiction to alter or amend the collective agreement. The Parties were clear on what was required for salary – the job offer had to be at least 85% of the employee’s OPS salary. Thus in Counsel’s submission the Board must provide detailed specification of the remaining terms of section 5.3. There must be "real meaning to the terms" of section 5.3. Counsel contended that the Board had little choice, given the Union’s submission, except to choose one of the Employer’s alternatives. With regard to job competitions Counsel submitted that I have two choices. 1) Where there is a job competition, which requires the applicant to have, for example, two years of experience, then the new employer has to count the applicant’s OPS service; or 5 2) that a relatively equal clause apply in job competitions only to the OPSEU candidates who were part of the group who opted-in for the RFP. Thus the most senior ex-OPSEU employee, who was relatively equal in ability to another ex-OPSEU person, would get the job. With regard to lay-off the Board was also given two choices in Counsel’s submission. 1) Ex-OPSEU employees who opted in to the RFP would be added to the bottom of the new employer’s seniority list or 2) Years of service of Ex-OPSEU employees who opted in to the RFP would count only in respect to other Ex-OPSEU employees who also opted in. Counsel noted that the parties are not asking the Board to make an order which purports to effect the new employers. He argued that only those ex-OPSEU employees who opted in can be effected. The Board’s jurisdiction would be exceeded if an order was made purporting to effect private employees of the new employer. Counsel cited Re Upper Lakes Shipping 42 L.A.C. (4th) 129 (Kaplan) as authority for the principle of adding the ex-OPSEU employees to the bottom of the new employee’s seniority list. Counsel for the Employer also asked the Board to consider the context of Appendix 18, which was in his submission an attempt by the parties to go from the uncertainty of Appendix 9 to certainty in Appendix 18. This was done so the Employer would be clear about what should be included in the RFP. Thus Mr. Marvy argued that I must “determine the exact right that should be in the job offer” under the terms of section 5.3. He stated further that it was a “cop- out” by the Union to argue that there was a core protection attached to these terms – and that section 5 was not a negotiated transfer. In conclusion, Counsel argued that the Employer needs to be specific when it issued RFP’s and therefore the Board must be specific as to what section 5.3 means. He stated that I cannot direct the parties to figure it out themselves. 6 Counsel asked the Board to render its decision before proceeding to hear evidence on the issue of remedy and no later than March 27, 2001. The Union’s Reply Argument Counsel for the Union argued in reply that the Employer had presented the Board with a false choice. Mr. Blair submitted that in interpreting a collective agreement, an arbitrator was not required to give an answer that specifies the provision in full detail. A requirement of full specificity, as demanded by Employer, presupposes that the present process be an interest arbitration – which it is not. In Counsel’s view it was not the Board’s task to choose between the Employer’s alternatives. The proposal to add the ex-OPSEU employees to the bottom of the new Employer’s seniority list made seniority protection under section 5.3 meaningless in Counsel’s view. Further, responding to the job competition years of service alternative, Counsel distinguished experience in a job from seniority. In his submission, this view of service as seniority was rejected by the Board in OPSEU (Union Grievance) and the Ministry of Finance 0976/98 (Dissanayake). Indeed, had the parties intended only to protect experience, they could have used that term, not seniority. Counsel for the Union also argued that the Board’s decision in this case is of no retrospective effect on the new employers. Section 5.3 imposes mandatory requirements on the Government to include seniority protection in the RFP. The prospective private employer may choose to bid for the work as provided in the RFP or not. In summary Counsel for the Union argued that section 5.3 of Appendix 18 provided core protection of seniority for the purpose of job competitions and lay-off, which can be understood without going beyond the collective agreement of the parties. Counsel acknowledged that detailed provisions, such as some of those included in Article 20 only have application to the Government. But Counsel maintained that the core protection of seniority must be included in RFP. 7 The first issue to be addressed is the effect of this decision. The parties have asked for an interpretation of section 5.3 of Appendix 18 to evaluate the remedy for the affected employees of Syl Apps, Genest and Project Dare, who the parties agreed got no recognition of seniority for the purposes of lay-off and job competitions, when their work was transferred to their respective new employers pursuant to section 5 of Appendix 18. The Board’s decision in this case has no retrospective or other effect on their new employers. Under section 5 transfers and the RFP process, the Government has the power to require new employers to provide seniority protection in their job offers to OPSEU employees who opt- in to the RFP. I am persuaded that the Government is obligated under section 5.3 to require that new employers provide such protection. Employees are entitled to a job offer at 85% of their OPS salary and the protection of their OPS seniority for the purposes as listed in section 5.3. This may well affect or have an impact on a prospective private employer’s current employees. But it is up to the new employer to figure out how its own employees are impacted. It is up to the Government to ensure that its exiting employees get proper job offers as required by section 5.3 of Appendix 18. And if they do not, then the Government is liable for a breach of the collective agreement. The next question is what is required to meet the obligation under section 5.3. The Employer wants a specific interpretation with concrete terms. They have an understandable need for clarity. The Employer’s need for clarity does not give this Board the power to write the provisions which the parties failed to specify. Further, I am not persuaded that the Union’s interpretation was so wanting that the only choices before the Board are as outlined in the Employer’s submission. I am of the opinion that the choices as advanced by the Employer do not offer protection to transferring employees for OPS seniority as required by section 5.3. For section 5.3 to have any meaning as OPS seniority protection, it cannot mean protection only vis- à-vis other OPSEU employees. 8 After careful consideration of the submissions and arguments of the parties, I am persuaded that the parties intended to preserve the core protections of seniority for lay-off and job competition. These core protections as identified by the Union from the collective agreement are specific and clear. For job competitions the Government must include a requirement in the RFP that a “relatively equal” clause be included in the job offer of the employment. That is, all employees opting into the RFP would get a job offer which included as part of their conditions of employment a clause with language like Article 6.3.1 of the parties’ collective agreement. With regard to lay-off the Union recognised that Article 20 details referred to what was reasonable for a large public employer but wanted the following basic protection included in the RFP. Employees who opt in would get a provision in their new contract that specified the most junior person is laid off first – provided the more senior person can do the work. Counsel for the Union acknowledged that not all the details of the protection for lay-offs and job competition afforded employees in the OPS would be included in the RFP. The Union wanted the core protection as outlined earlier. This position is consistent with an earlier decision of this Board, which addresses the sufficiency of a new employer’s seniority system compared to the OPS, OPSEU (Union Grievance) and the Ministry of Health 1615/99 (Brown). In this case the Board was considering a transfer of work under Schedule B or Negotiated transfer. In considering Appendix 18 the Board held: How does Appendix 18 treat differing seniority systems? In my view, the authors of Appendix 18 almost certainly did not intend entitlement to surplus benefits to turn upon a detailed comparison of the OPS seniority system with the system of the receiving employer. The contrary conclusion would give rise to extensive litigation positing a number of questions for which Appendix 18 offers no answers. How is the degree of protection afforded by any aspect of a seniority system to be measured? For example, should the yardstick be the number of classifications into which bumping is permitted or the total number of employees in those classifications? If one aspect of a new employer’s seniority system provides less job security than the system in OPS, but another aspect offers more, how are these two components to be weighted relative to one another in arriving at an overall comparison of protection under these two systems. The absence of any reference to these very complex issues in Appendix strongly suggests negotiators viewed them as matters that should be ignored. 9 In a negotiated transfer, the Employer has less power to ensure terms of employment in the job offer than under Schedule A, or section 5 of the Appendix which gives the Employer (the Government) the most control through the tendering or RFP process to ensure that new employers offer seniority protection. But the analysis in the Schedule B case is also important to a transfer under Schedule A. The authors of Appendix 18, as the Union recognised in their submission to this Board, could not have intended the detailed protection of seniority that is provided in the OPS. That said they must have meant something at least as meaningful as a core protection, as outlined above. Having interpreted section 5.3 of Appendix 18 at the request of the parties, the hearing may proceed. Dated at Toronto, this 21st day of March, 2001 Deborah J.D. Leighton, Vice-Chair.