Loading...
HomeMy WebLinkAbout2013-3291.Association.16-09-28 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-3291, 2015-1003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Association) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE ASSOCIATION Marisa Pollock (Counsel) Ryan Newell (Counsel) Goldblatt Partners LLP FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Labour Practice Group Counsel HEARING February 4, 17; March 4, 9; July 11, 2016 - 2 - Decision [1] The Board is seized with two policy disputes relating to the interpretation and application of the recognition clause, article 1.2 of the collective agreement. That article is unusually detailed and complex. For purposes of this decision it suffices to note that one of the exclusions specified therein is “those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR units.” (“The HRO exclusion”) [2] The first dispute (File 2013-3291) claims that the employer violated the collective agreement when it moved certain individuals, who hitherto had been included in the bargaining unit, to HRO, and relying on the HRO exclusion, has treated them as excluded. The parties agreed to defer this dispute and proceed first with the dispute in file 2015-1003. [3] In a nut-shell, the dispute in file 2015-1003 is as follows. HRO came into existence in 2008. At that time, the parties agreed to the HRO exclusion. That resulted in the exclusion of in excess of one hundred individuals from the bargaining unit. In 2014 the employer undertook a restructuring of its human resources function. The Ministry of Government Services (“MGS”) and HRO were eliminated. The human resources function was now shared between two newly created ministries, the Ministry of Government and Consumer Services (“MGCS”), and the Treasury Board Secretariat (“TBS”). Certain individuals who had been previously excluded under the HRO exclusion were moved to the TBS. The employer continues to treat those individuals as excluded from the bargaining unit relying on the HRO exclusion in the recognition clause, which still continues in the collective agreement. [4] AMAPCEO takes the position that the individuals in question are no longer “employed in HR Ontario”. Since HRO no longer exists, no one could be employed in HRO and there could be no exclusions under the HRO - 3 - exclusion. Any exclusions must be based on the Crown Employees Collective Bargaining Act or some other exclusion in the recognition clause. [5] The parties jointly stipulated the following facts: (1) That during negotiations leading up to the 2014-2018 collective agreement neither party raised any issue relating to the HRO exclusion in the recognition clause and there was no discussion about that exclusion. (2) That AMAPCEO received the letter of disclosure from the employer “Re: Establishment of the Treasury Board Secretariat and the Ministry of Government and Consumer Services”, dated July 14, 2014. EMPLOYER’S EVIDENCE [6] As directed by the Board, the employer proceeded first with its evidence. It called two witnesses, Ms. Janet O’Grady and Ms. Judy Hartman. AMAPCEO called no evidence. Ms. O’Grady has been employed in the Ontario Public Service since 1987 in various human resources positions, including the positions of Director, Employee Health Safety and Wellness, Ministry of Government and Consumer Services – 2007-2015); and Director, Human Resource Policy and Planning (Temporary Assignment, TBS -2015- Present) Ms. Hartman also has been employed in the OPS in a number of management positions since 1992. In December 2012, she assumed the position of Director of the Corporate Leadership and Learning Branch at the Centre of Leadership and Learning, a division of TBS. [7] Neither of the employer’s two witnesses were involved in the negotiations that led to the initial inclusion of the HRO exclusion in the 2008 Minutes of Agreement (“MOA”) or its subsequent inclusion in the 2014-2018 collective agreement. However, they testified about previous collective agreements and - 4 - the numerous organizational changes that took place over the years since HRO came into existence as an entity within the organizational structure, and the impact of the demise of HRO in 2014, with the creation of TBS and MGCS. Ms. O’Grady testified in great detail over two hearing days about the evolution of the government organizational structure, particularly as it impacted the human resources function. She referred to so many documents and organizational charts, it seemed like a continuous movement of pieces in a massive jigsaw puzzle. Fortunately, it is not necessary to review that detail. I shall only review the salient points that came out of her testimony. [8] From Ms. O’Grady’s testimony it is clear that in the 1980’s the delivery of the government’s human resources services was largely decentralized, and located within individual ministries. Only a few HR functions, such as policy and collective bargaining, were centralized and located in the Ministry of Government Services. Other services including labour relations, training, payroll and health and safety were delivered through HR branches within the various ministries. [9] The centralized HR services moved from MGS to other ministries as MGS was replaced by new ministries. By the mid-1990s, MGS was no more, and the centralized HR services were delivered through a new ministry called Management Board Secretariat (“MBS”). Ms. O’Grady testified that in March 2005, an initiative called “the HR Service Delivery Transformation Project” was launched to modernize the government’s approach to HR service delivery. This included consultations with bargaining agents including AMAPCEO. A report summarising the results of the project records that “AMAPCEO advocated the benefits of “centralizing” specialized HR functions”. [10] The next significant event was the development of a 2005-2008 three year plan with a new model consisting of three elements for HR service delivery, which Ms. O’Grady called “the 3 bubbles”, namely, (A) Strategic Ministry HR Services, (B) Centre for Expertise and (C) Common HR Services. By June 2005 MBS - 5 - was no more, and MGS was back again. Centralized HR Services were again located in MGS. Ms. O’Grady testified that under this new model, bubble (A) provided strategic HR support within the MGS. Bubble (B) handled specialist areas such as labour relations, classification and health and safety. Bubble (C) provided HR advisory support of a general nature to managers and employees, with the objective that the advice received was consistent. This new model envisaged that only the services provided within bubble (A) would remain with individual ministries, while those in bubbles (B) and (C) would be centralized. As a result, the HR delivery service component left within individual ministries became much smaller than it was previously. By May 2007, the changes were put into place. Four divisions, each with its own Assistant Deputy Minister, were established under the Centre for Leadership/Human Resources Management of MGS. The divisions were (1) Centre for Leadership and Learning (2) HR Management and Corporate Policy (3) Employee Relations (4) HR Service Delivery. [11] In July 2008, the four above noted human resources divisions were consolidated under the umbrella of a unit called “HR Ontario”. This was announced by a memorandum dated July 9, 2008 from the Deputy Minister for MGS addressed to all staff. It stated, inter alia: Within MGS, Angela Coke has been appointed Associate Deputy Minister for what will be called HR Ontario, a consolidation of the four Human Resources divisions. The four divisions themselves will remain unchanged (HR Management & Corporate Policy Division, Centre for Leadership and Learning, Employee Relations Division and the HR Service Delivery Division). In addition, the Modernization Division will be moved into this organization. [12] Subsequently, more consolidation of HR services within HRO occurred with the transfer of the services provided by strategic business units to HRO. In the collective agreement in place at the time, the recognition clause included the typical exclusion of “persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations”. Ms. O’Grady testified that at this time while all labour relations advisors were excluded from - 6 - the bargaining unit, there was no consistency among ministries in relation to exclusion of other persons involved in human resources related duties. The government decided to address that concern. Discussions between AMAPCEO and the employer took place culminating in the execution on September 10, 2008 of a MOA. Its preamble reads: “Whereas AMAPCEO and the Employer have engaged in consultations regarding modernizing labour relations in the Ontario Public Service;” [13] In section (1) of the MOA, the parties agreed that “the bargaining units should be reconfigured as follows:” Subsection (1) C recognized AMAPCEO as exclusive bargaining agent for a bargaining unit described therein. The exclusions were described as follows: Save and except persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations, or lawyers and engineers who are employed in their professional capacity, or those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR Units, or persons employed in the Correctional Bargaining Unit or persons employed at the Ontario Police College, the Ontario Provincial Police Academy, or under the supervision of the Commissioner of the OPP or the Chief Firearms Officer for Ontario. (underlining added) [14] The execution of this 2008 MOA is fairly described as the genesis of the HRO exclusion. As a result of the consolidation of HR services under the HRO, the four Regional HR Service Delivery Centers, including their Recruitment Centres, which hitherto had been within individual ministries became part of HRO. Pursuant to the HRO exclusion, individuals who had been previously included in the bargaining unit within the ministries were excluded from it. [15] An excerpt from the Annual Report 2009, describes the mission of HRO as follows: To ensure the OPS has the right people, in the right place, at the right time to achieve government priorities and ministry business results by: - 7 -  Developing and delivering modern enterprise human resource strategies, policies, programs and services that support the OPS as an employer of choice.  Establishing corporate management policies to ensure an accountable, professional public service  Building OPS transformation capacity and promoting organizational and service excellence It describes the composition of HRO as follows: HR Ontario (HRO) comprises 5 divisions:  Centre for Leadership and Learning  HR Management and Corporate Policy Division  Employee Relations Division  HR Service Delivery Division  Modernization Division [16] Ms. O’Grady testified that in 2012 further organizational changes were announced. By memorandum dated October 11, 2012, to all MGS staff, the MGS Deputy Minister outlined the changes. One of the goals, he stated, was to bring similar services and functions together, which will help reduce duplication, simplify processes and offer better services to clients. The changes set out included the following: The positions of Associate DM, HROntario, and ADM, Centre for Organizational Excellence, will be permanently eliminated. HROntairo will continue as an organization within MGS, and its ADMs will continue to report directly to me. With the announcement of Neil Sentance’s retirement, the ADM position will be eliminated. Green Office staff will join the new Employee Engagement and Foundation programs Branch in HROntario in January. [17] On July 14, 2014, the employer sent a memorandum of disclosure about the creation of two new ministries, TBS and MGCS. The disclosure delineates the division of HR services between the two ministries. There is no reference at all to the HRO in the memorandum, except that it is signed by Mr. Michael Villenevue, whose title appear as “Director Centre for Employee Relations, Employee Relations Division, HROntairo, Ministry of Government Services.” The organizational changes are stated to be effective July 15, 2014. An - 8 - organizational chart dated October 2014 under the heading “Enterprise HR Community” sets out the components of the TBS and MGCS. The organizational chart does not depict HRO under either ministry. A subsequent organizational chart in 2015, also under the title “Enterprise HR Community”, shows HR function areas reporting to TBS, MGCS, and Ministries. Under it, Strategic Business Units have a dual reporting, to MGCS as previously, and also to Ministries. Ms. O’Grady testified that this was the “current” organizational chart. She testified that following this reorganization, TBS was responsible for HR policy, while MGCS was responsible for service delivery. She testified that despite the separation, ie. Three HR divisions going to TBS and one going to MGCS, all HR divisions continued to work together as before. There was no significant change in the manner of delivery of HR services, and the three bubble approach was largely continued. [18] In cross-examination, Ms. O’Grady reiterated that prior to the creation of HRO, more HR services were decentralized, but there always were some centralized functions such as collective bargaining and policy. She agreed that she had no involvement in the decisions that led to the organizational changes she testified about, including the creation of the HRO, except that she had a consultative role in relation to the impact of the changes on her own area, the Centre for Employee Health Safety and Wellness. [19] Ms. O’Grady testified that she was unable to speak about consultations that may have taken place with bargaining agents in relation to the 3 year plan in June 2005, because she had no involvement in that. She agreed that in the announcement the changes are described as “structural”. Under that plan, consumer services were carved out and sent to a separate ministry, and MGS replaced MGCS. The creation of HRO was also announced at that time. She testified that when HR services were moved into HRO there was no physical movement of staff. The change was that staff was reporting to a new entity. - 9 - [20] Ms. O’Grady confirmed that she was not involved in any discussions pertaining to changing the recognition clause in the AMAPCEO collective agreement. She testified that while some divisions no longer appeared on organizational charts, the functions largely continued. She confirmed that subsequent to the creation of the HRO in 2008, organizational changes did not cease. In 2014 a newly formed cabinet undid the HR structure and created TBS, and MGCS was back again. The rationale was that the “employer function” would reside in TBS, while service delivery would be the responsibility of MGCS. She stated that she had no direct knowledge of the July 14, 2014 disclosure letter to AMAPCEO announcing the creation of TBS and MGCS. Asked whether she recalled reading any document announcing that the HRO title is no longer in use or that HRO is no longer an entity, she replied “no”. [21] Under questioning, Ms. O’Grady confirmed that following the July 2014 reorganization, the following was true: MGCS had managers who did no HR duties; AMAPCEO members worked in both TBS and MGCS; TBS was made up of key functions previously held by other ministries including certain divisions of MGS and the Ministry of Finance; TBS also included staff from the Ministry of Economic Development, Employment and Infrastructure; MGCS was made up of functions previously held by ministries such as MGS and Ministry of Consumer Services. Ms. O’Grady agreed that in 2008 HRO was formed by consolidating five HR divisions. Then in 2014 MGS was split up into TBS and MGCS, and steps were taken to rebrand TBS and MGCS as distinct. [22] Ms. Judy Hartman, testified that in January 2013, the Employee Engagement and Foundations Program Branch (“EEFP”) was created. At the time the Centre for Organizational Excellence (“COE”) was a division of MGS outside HRO, and included as part of it, the Centre for Employee Engagement and Client Satisfaction, the Centre for Innovation and Workplace Culture, the Youth and New Professionals Secretariat (“YNPS”) and the OPS Green Office (“Green Office”). Most staff from the two first named centres came over to EEFP. Those positions that did not come over to EEFP went over to the HR Service Delivery - 10 - Division. In addition, a number of positions from the YNPS, as well as all its staff came over to EEFP. Ms. Hartman testified that at this time COE itself ceased to exist. Prior to joining EEFP, staff at YNPS had been excluded from the bargaining unit. However, after joining EEFP all non-management staff was included in the bargaining units. One position was in the OPSEU unit and the rest in the AMAPCEO unit. [23] Ms. Hartman referred to a letter of disclosure to AMAPCEO dated September 26, 2012 from Mr. Michael Villeneuve, Director, Centre for Employee Relations, Employee Relations Division, HR Ontario, MGS, about the creation of EEFP in January 2013. It included the following: As part of the first phase of changes, a new Employee Engagement and Foundations Program (“EEFP”) Branch in the Centre for Leadership and Learning will be created effective January 2013 to streamline culture work being delivered by different program areas of the ministry. The Ministry of Government Services is responsible for the development, delivery and oversight of a number of corporate activities intended to build and promote the OPS as an employer of choice, and for ensuring the OPS’ corporate values and behaviours reflect those of the communities we serve. While this work has continued, it has been delivered through a structure of separate teams. The Green Office, along with existing functions responsible for employee engagement, innovation and spirit, and targeted new professionals programs, will be merged within the new EEFP branch. The ministry will be transferring the Green Office functions and staff to the new EEFP branch effective January 2013. The transfer of the Green Office will result in reporting relationship changes for some staff. Details will be disclosed once decisions are finalized. There will not be any other change in the terms and working conditions of AMAPCEO-represented staff. Ms. Hartman commented that by stating that there “will not be any changes in the terms and working conditions of AMAPCEO represented staff”, the employer disclosed to AMAPCEO that there would be no change in the exclusions from its bargaining unit. She testified that the creation of EEFP resulted in a change in reporting relationships. The management structure changed from two managers - 11 - plus Special Advisor, to one manager. Therefore, all staff now reported to one manager who reported to her. [24] In March 2013, EEFP became the Corporate and Leadership Branch. In October 2013, further organizational changes were implemented, going from four teams to three, and the Green Office was no more. The letter of disclosure to AMAPCEO dated September 30, 2013, included the following: Currently the Branch is comprised of four program-based units, one of which is the OPS Green Office. As part of the second phase of structural transformation EEFP completed a review of current branch structures and functions in an effort to explore opportunities for greater efficiencies and for the redesign of a more effective, functionally-based service delivery model to improve client service. As a result, the four units currently within the Branch will be merged into three units which will now align with three main functions in which the Branch specializes: Research and Outreach, Service Delivery, and Business Intelligence. The Green Office will be eliminated and the position functions from the Green Office will be fully integrated with the other functions of the Branch within HROntario. The Branch will also change its name to the Corporate Leadership Branch, which is reflective of the functions for which the Branch provides leadership across the OPS. As a result of the changes, the job descriptions for the seven AMAPCEO-represented positions have been updated to reflect the new structure and integrated functions of the Branch. Upon evaluation by the Enterprise Classification Unit (ECU) it has been determined that these positions are properly within HROntario and therefore excluded from the bargaining unit and will be reclassified to classifications falling within the Management Compensation Plan (MCP). [25] Ms. Hartman confirmed that from October 2013, the Green Office no longer existed as a team. The staff of the former Green Office went to the Research and Outreach section and the Business Intelligence Section of the Corporate Leadership Branch within HRO. She testified that she reviewed and revised the job descriptions of the positions that came over from the Green Office. As a result of the revision, the positions were found to be part of HRO, and therefore excluded from the bargaining unit. - 12 - [26] Ms. Hartman testified that between the reorganization in October 2013, and the creation of TBS and MGCS in July 2014, two of the three teams in the Corporate Leadership Branch underwent name changes, but there was no change in functions. Similarly, following the creation of TBS and MGCS in July 2014 and the transfer of CFLL to TBS, there was no change in the core functions of the CFLL. [27] Ms. Hartman testified that following the July 2014 creation of TBS and MGCS, the HR Service Delivery component went to MGCS, and the other constituent parts of HRO went to TBS. HRO no longer continued on organizational charts “as a grouping”. However, she testified that the functions of the constituent parts of the former HRO did not change. She specifically stated that the fact that her branch was no longer shown on the organizational chart within a grouping called HRO did not change the functions of the branch. She stated that since the creation of TBS and MGCS in July 2014 the name of her branch changed to Centre for Corporate Leadership and Learning, and there was some internal reorganization. However, that also did not result in any change in its functions. [28] Under cross-examination, Ms. Hartman confirmed her testimony in chief that an organizational chart is a tool used to communicate to internal and external parties the work done by various individuals, how that relates to work done by others, and the link between various positions within the organization. Counsel referred to the post July 2014 organizational chart, and suggested that the links between various positions changed as a result of the reorganization. She replied that the people did not change and that the only change was in who they reported to. Counsel put to Ms. Hartman that since the organizational chart has no reference to HRO, it communicates that employees in the Centre for Corporate Leadership and Learning, which included employees who came over from HRO, no longer work in HRO. Ms. Hartman agreed that the organizational chart had the heading “The HR Enterprise Community” rather than “HRO”, but - 13 - added that “what it is called makes no difference”. She testified that there were still people who refer to “the HR Enterprise Community” as the “HRO”. [29] In re-direct, Ms. Hartman testified that while the reorganization resulted in changes in reporting relationships and some changes in the approval protocol, that had no impact on the responsibilities at the staff level. SUBMISSIONS Employer Submissions [30] Employer counsel submitted that the task of the Board in this dispute is to interpret the words, “those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR units”, in the recognition clause. Since the collective agreement does not set out a definition of “HR Ontario”, and its meaning is not clearly discernable on the face of the collective agreement, the Board must interpret the words by applying established principles of collective agreement interpretation to the facts before it. Counsel referred to the following excerpt from Brown & Beatty, Canadian Labour Arbitration, at 4:2100: It has often been stated that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it. As one arbitrator, quoting from Halsbury’s Laws of England, stated in an early award: The object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit. And further: But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, - 14 - the expressed meaning being, for the purpose of interpretation, equivalent to the intention. A more recent articulation of the proper approach has been as follows: The modern Canadian approach to interpreting agreements (including collective agreements) and legislation is encompassed by the modern principle of interpretation which, for collective agreement, is: In the interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object and the intention of the parties. [31] Counsel cited Re AMAPCEO and MGS, 2011-0995 (Dissanayake) where the Board referred to the above noted excerpt and stated at para. 7: It follows from the foregoing that there is a presumption that the parties intend what they have expressed. Where there is no ambiguity in what the parties have expressed, effect must be given to that notwithstanding any unfairness or inefficiencies that may result. A related principle is that in interpreting collective agreements, it must be presumed that all of the words used are intended to have some meaning and are not intended to be mere verbiage without significance. (See generally, Brown Beatty, Canadian Labour Arbitration, at 4:2000). He further relied on paragraph 9 of this Board’s decision in Re Amalgamated Transit Union, Local 1587 and Metrolinx – Go Transit, 2010-2210 (Dissanayake): Therefore, the Board’s task is to apply the foregoing principles to ascertain the intention of the parties when they added the words “as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9”. In doing so, the language must be read in its entirety, and must be viewed in its normal and ordinary sense, unless that leads to an absurdity. Moreover, where there is no ambiguity in meaning, the language must be given effect to, regardless of the Board’s opinion on the fairness of the result. The initial obligation on the Board is to see if meaning could be given to the expressed language in article 2.1. If that is possible, it must be assumed that the parties intended what they have agreed to. - 15 - [32] Counsel cited Brown & Beatty (supra) at 4:2250 to the effect, “Where the context of the agreement or subject matter is sought to be established, extrinsic evidence may be received for that purpose”. He also relied on the following excerpt at 4:2300: In construing collective agreements, arbitrators look to the purpose of the particular provision in the collective agreement as an aid to determining the meaning intended by the parties. In this regard, they have recognized that collective agreements are not negotiated in a vacuum, but rather are settled in the context of general industrial relations practices, within a specific negotiating context and against a vast history of judicial and arbitral jurisprudence which will affect the parties expectations and understandings. In the result, arbitrators give effect to this general contextual climate by requiring clear statements to alter such general expectations. [33] Finally, counsel brought to the Board’s attention the following statement by the Ontario Supreme Court in Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. et al [1969] 1 O.R. 409 at p. 524, which was cited with approval in a labour arbitration context in Re Noranda Metal Industries Ltd, (1983) 440 O.R. (2d) 529 (Ont. C.A.): Extrinsic evidence may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and also to resolve it, but it is to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it. Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties. [34] Employer counsel reviewed the detailed testimony of Ms. O’Grady, and pointed out that from about 1990, the government started a process of centralizing its human resources functions, and that when reorganizing the structure in order to achieve this goal various parties, including bargaining agents, were consulted. He noted particularly that AMAPCEO was in favour of this centralizing initiative. [35] Counsel referred to a MOU dated March 27, 2007, between the Management Board of Cabinet and AMAPCEO which included a recognition clause with the typical exclusion of “persons who exercise managerial functions or who are - 16 - employed in a confidential capacity relating to labour relations”. He contrasted that clause with the recognition clause in the MOA dated September 10, 2008. In addition to the “managerial/confidential” exclusions, for the first time it also excluded “those employed in HR Ontario, including Regional Service Delivery Centres and Strategic HR units”. Counsel described this HRO exclusion as “an agreement to exclude anyone involved in the delivery of HR services”, in addition to those employed in a confidential capacity relating to labour relations. This new HRO exclusion language was incorporated into the 2012-2014 collective agreement and the new recognition clause was made effective from October 1, 2013. [36] Counsel reviewed the evidence relating to organizational changes and name changes that followed. Then in July 2014, the critical organizational change occurred. MGS was eliminated. Two new ministries, TBS and MGCS were created. HR functions were moved to the two new ministries. Counsel submitted that following this organizational change “HRO no longer existed as part of the organizational structure”. He stressed that both Ms. O’Grady and Ms. Hartman testified that following the creation of TBS and MCGS and the elimination of HRO, there was no change in the way the Centre for Leadership and Learning or the Corporate Leadership Branch functioned. The only change was in the reporting relationships and the approval process. [37] The dispute arose because the HRO exclusion that appeared in the 2012-2014 collective agreement was included in the collective agreement executed on August 3, 2014. Counsel stated that as of August 3, 2014, HRO had ceased to exist “in the sense of a consolidation of four divisions”, and was no longer depicted in organizational charts. AMAPCEO had received disclosure prior to August 2014 that MGS is dissolved, that TBS and MGCS were created, that positions in the Employee Relations Division, the Centre for Leadership and Learning and the HR Policy Division would be transferred to TBS, and that positions in the HR Service Delivery Division would be transferred to MGCS. - 17 - [38] Counsel stated that it is not known whether or not AMAPCEO was aware at the time it executed the collective agreement on August 3, 2014, that HRO no longer existed. AMAPCEO called no evidence in that regard. He invited the Board to draw an adverse inference against AMAPCEO in the circumstances. Counsel noted the stipulation by the parties that during negotiations for the 2014-2018 collective agreement there was no reference to or discussion about the HRO exclusion, or about whether or not HRO continued to exist. However, he submitted that the evidence indicates that when the HRO exclusion was first negotiated in 2008, there was an agreement that the typical exclusion language “persons employed in a confidential capacity relating to labour relations” ought to be expanded to exclude “anyone engaged in the delivery of HR services”. It is against that backdrop that the Board must attempt to ascertain what the parties intended when they continued the HRO exclusion language in the 2014- 2018 collective agreement, although the HRO itself had ceased to exist. [39] Employer counsel submitted that in circumstances where there is no longer a HRO, but the HRO exclusion language continues in the collective agreement, it is appropriate and necessary to resort to extrinsic evidence to ascertain why the parties did that. He submitted that AMAPCEO’s position that no one is excluded under the HRO exclusion because no one is employed in HRO, goes against the cannon of interpretation that requires the Board to presume that all words and phrases in a collective agreement are intended to have meaning. AMAPCEO’s interpretation renders the HRO exclusion language in the collective agreement utterly superfluous. In the words of the Board in Re AMAPCEO and MGS (supra), it must be presumed that the HRO exclusion language was “not intended to be mere verbiage without significance”. [40] Counsel submitted that the only way to give meaning to the HRO exclusion language in the particular circumstances is to conclude that the parties intended thereby to “continue the status quo”, which he said, was to exclude anyone involved in the delivery of HR services. That would result in the exclusion of all positions within the divisions which had formed part of the former HRO. He - 18 - submitted that accepting AMAPCEO’s position would lead to an absurd conclusion that without any discussion at all, the parties intended to take away from the employer the expanded exclusion which was bargained in 2008, and then was enshrined in later collective agreements. AMAPCEO Submissions [41] The submission on behalf of AMAPCEO was divided between Mr. Ryan Newell, who made submissions based on the evidence, and Ms. Marisa Pollock, who made the legal submissions. Mr. Newell reviewed the evidence of Ms. O’Grady and Ms. Hartman. He stated that while much of that evidence is uncontested, very little of it is of any assistance. Employer counsel on one occasion stated that after July 2014 HRO did not exist “as an organizational structure”. Later he stated that it did not exist as “a consolidation of the four divisions”. Mr. Newell argued that whichever way one looks at it, the point is that after the July 2014 reorganization there was no HRO in existence, and therefore, no one could possibly be “employed in HRO” to be captured by the HRO exclusion language. [42] Mr. Newell referred to employer counsel’s submission that when the HRO exclusion was first negotiated in 2008 the parties intended to exclude “anyone involved in the delivery of HR services”. Under that interpretation the employer would be free to unilaterally make organizational changes and exclude individuals who end up in any future successors to HRO or any of its former constituent parts, regardless of where they are employed in the OPS. Counsel submitted that to justify such an interpretation, clear evidence is required on several fronts. He pointed out that there is no evidence as to what was discussed during the initial negotiation of the HRO exclusion in 2008. There is no evidence whatsoever that there was any common understanding that “HRO” was used as a term of art to refer to anyone involved in the delivery of HR services, no matter what changes take place in the future in the organizational structure and the nomenclature used to describe the workplaces they are located in. - 19 - [43] Mr. Newell submitted that there is also no evidence that in July 2014 AMAPCEO became aware that HRO had ceased to exist, or that either party was even alive to the issue. He submitted that the agreement in 2008 was to exclude persons employed in HRO, and those words are clear. There is no evidence that the parties intended anything different than what they have stated in the collective agreement. He argued that the employer counsel’s assertion of a common understanding that “anyone involved in the delivery of HR services would be excluded” is nothing more than his assertion. It is not supported by any evidence. [44] Counsel submitted that both employer witnesses testified that between 2008 and 2014 there was constant change in the organizational structure and names of the constituent parts of government. It is very important to keep in mind that the 2014-2018 collective agreement was concluded in that labour relations context of constant fluidity and change in the organizational structure. When seen in that context, it is simply implausible that AMAPCEO would agree to give the employer complete latitude to define the scope of the bargaining unit by using its authority to change the organizational structure. That is the necessary result that flows from the employer’s interpretation. [45] Mr. Newell stated that the employer attempted to trivialize the organizational changes in July 2014, as simply a change in reporting relationships and approval processes. He submitted that to the contrary, the evidence of Ms. O’Grady was that the abolition of MGS and creation of TBS and MGCS were the result of a political decision. She testified that TBS was created as a ministry separate from other ministries to perform particular functions. In the announcements of the restructuring, it was emphasized that TBS and MGCS were created to carry out different mandates. The restructuring involved several ministries. TBS was created out of parts of MGS, the Ministry of Finance and the Ministry of Economic Development and Trade. MGCS was comprised of parts of Service Ontario, the Ministry of Consumer Services and MGS. Ms. O’Grady testified to that effect. The announcement to all MGS staff dated July - 20 - 15, 2014 set out the different functions of TBS and MGCS. Thus the restructuring was of substance and of significant consequences, not a mere change in reporting relationships and approval processes. [46] Counsel stated that while AMAPCEO received the July 14, 2014 disclosure letter, it does not in any way communicate that HRO had ceased to exist. There is no evidence that such a communication was ever made to AMAPCEO or to anyone else. In fact, Ms. O’Grady, the employer’s own witness, testified under cross-examination that even she, as a senior manager, did not recall seeing any document stating that HRO no longer exists as an entity. Counsel pointed out that there is no reference whatsoever to “HRO” in the body of the letter of disclosure to AMAPCEO. The only mention of HRO is in the title of the signatory to the letter, who is described as “Director, Centre for Employee Relations, Employee Relations Division, HR Ontario, Ministry of Government Services”. Counsel argued that this reference to HRO in fact conveys to AMAPCEO that as of the date of the letter, July 14, 2014, HRO continues to exist as an organization. [47] Ms. Pollock stated that while the cannons of interpretation of collective agreements are well established in applying them it must be kept in mind that the Board’s jurisdiction is to interpret the language as written by the parties. No words or concepts not specified in the provision can be inferred, unless there is compelling evidence that requires the Board to do so. She submitted that there is no such evidence before the Board. In her view, the only evidence led by the employer that is useful to the Board in interpreting the relevant language is that about the context in which it must be interpreted. [48] Ms. Pollock argued that where fundamental rights are involved, arbitrators have strictly interpreted collective agreement provisions against the party seeking to exclude such a right. Reliance was placed on Re Bridgepoint Health, [2003] 119 L.A.C. (4th) 33 (Armstrong). There the employer had moved for dismissal of a discharge grievance on the grounds that it had not been referred to arbitration - 21 - within the time limits in the collective agreement. At paragraph 18, the arbitrator wrote: It is my view that a contrary principle of interpretation applies in these circumstances. One of the core, fundamental principles of collective bargaining legislation in Ontario – indeed, in all of Canada – is that there is no right to strike during the operation of a collective agreement. Instead, the legislature has provided that disputes under collective agreements shall be decided by final and binding arbitration, without resort to strikes or lock outs. To be sure, the right to arbitrate is not absolute and is subject to defeat under certain circumstances, including, in some cases, the failure to meet mandatory time limits. But if the right to arbitrate is to be defeated, without leaving an arbitrator with discretionary power to relieve against procedural defects, the collective agreement provision defeating that right must, in my view, permit no other conclusion. [49] Counsel relied on Re Queen’s University, [1987] 6 C.L.A.S. 118 (Saltman) as illustrative of the arbitral approach specifically with respect to exclusions from the bargaining unit. At para 23 the majority wrote: In the absence of a reliable past practice or evidence of negotiating history, the collective agreement must be interpreted on its face. On its face, the agreement provides that employees whose salary is “paid primarily from research grants” will be excluded from the bargaining unit. The Employer takes the position that the term “research grants” ought to be interpreted to mean all research funds, including monies received from recovery accounts, whereas the Union takes the position that the term ought to be narrowly construed to cover monies received from research grants only. In our view, as the term “research grants” is used to describe an exclusion from the bargaining unit, it ought to be strictly construed: see Halsbury’s Laws of England, 4th ed., Vol 44, para. 882, p. 538. [50] Ms. Pollock took the primary position that there is no ambiguity in the words “those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR units”. However, if the Board finds that the language is not clear, it must be strictly interpreted against the employer who is seeking to exclude employees from the bargaining unit, thereby denying them the benefits and protections under the collective agreement. They would be denied the right to collective bargaining. - 22 - [51] Counsel urged the Board not to depart from the literal meaning of the parties’ language by inferring language not found in the agreement. The Board was urged to use its expert knowledge of how parties negotiate exclusions from the bargaining unit. Re Columbia Forest Products (MacDowell) unreported award dated January 27, 2009 was cited as an example of arbitrators doing that. There the policy grievance concerned the calculation of overtime when an employee is off work on vacation for part of the week in which overtime is claimed. The collective agreement provided that time off due to holidays shall be considered as time worked in computing overtime hours in excess of 40 hours. The union argued that the word “holidays” in the provision should be read elastically so as to include “vacation days off”, and not just the various holidays set out in the collective agreement. The arbitrator took into account the context in which the negotiations took place and dismissed the grievance, stating at pp. 29-30 as follows: In my view, under this collective agreement, a “vacation” is not subsumed under the term “holiday”, they are different notions and constructs; and if the parties had intended vacations to be included in Article 11.04(a) they would have said so specifically. Put it differently, I do not think the colloquial meaning of the word “holiday”, which might include “vacations”, is what was meant when the word “holidays” was inserted in Article 11.04(a). What the parties meant by the word “holidays”, was the holidays per Article 7 of the Agreement, and not vacations per Article 6. Finally, while I reject the Company’s suggestion that the Union’s proposed interpretation of the agreement is either “absurd” or “unworkable”, I think that it is mildly unlikely that, in the context of economic crisis and concession bargaining, the parties would have agreed to a formula that substantially and quite artificially increases the Employer’s likelihood of paying overtime premiums, based upon large periods of vacation time off (as many as 35 or 40 days for some long service employees) – at least without saying so specifically. [52] Counsel urged the Board to follow a similar approach by recognizing that a union is unlikely to grant an employer the unfettered ability to restrict the scope of the bargaining unit as it deems fit, by changing the organizational structure. - 23 - In the absence of compelling evidence, the Board should not infer that any union would do that. [53] Ms. Pollock noted that the employer has explicitly stated that it was not raising an estoppel argument. Yet, it seeks a result similar to estoppel by asserting that AMAPCEO was aware when the 2014-2018 collective agreement was signed, that HRO was no longer in existence. An estoppel would generally last only for the term of the collective agreement. If the employer’s position is upheld, as long as the HRO exclusion is in collective agreement, the employer would be able to control the scope of the bargaining unit by changing the organizational structure. Intention to create such an unusual result should not be inferred in the absence of compelling evidence. Reliance was placed on Re Stock Transportation, 2008 CanLII 87662, (Johnston). [54] Counsel pointed out that where the parties intended to include or exclude “similar” positions from the bargaining unit, they have indicated that by including generic language. Thus, in the same MOA concluded in 2008, which first inserted the HRO exclusion, at para.1(c), they set out a recognition clause naming a number of specific classifications which fall within the bargaining unit. However, at the end of the provision they have used generic language, “and all employees in any newly established classification that is subsequently agreed, or determined by the OLRB, to be materially similar to a classification in the unit”. Counsel submitted that if the parties intended to exclude persons employed in HRO as well as “anyone involved in the delivery of HR services” as employer counsel suggests, they would have used some similar generic language to indicate that intention. EMPLOYER Reply Submissions [55] Employer counsel took issue with AMAPCEO’s contention that there is no evidence of any common understanding about the meaning of “persons employed in HRO”. He submitted that it ignores the extensive evidence relating to the history leading up to the execution of the 2008 MOA. The evidence was - 24 - that the employer defined HRO as a consolidation of the four divisions, and that later a fifth division was added. The union called no evidence that it had a different understanding of what HRO means. Therefore, the Board can fairly infer that “there was a common understanding that it meant the consolidation of the four divisions and the Regional Strategic Delivery Centres and the remnants of the old HR branches in various ministries”. In other words, they were excluding “anyone engaged in delivery of HR services”. [56] Counsel reiterated that the term “HRO” was used by the parties as a label to refer to persons delivering HR services, and not as a reference to a legal entity. He agreed that where the organization is not static, there is potential for disputes. However, it does not mean that the employer’s interpretation, if accepted, would give the employer unfettered power to decide who would be excluded from the bargaining unit. He pointed to AMAPCEO’s first grievance which was deferred on agreement, as an example of AMAPCEO challenging the employer’s ability to move individuals and exclude them under the HRO exclusion. [57] Employer counsel submitted that there are only two possibilities as to why the HRO exclusion was continued when the HRO itself had ceased to exist. The first is that AMAPCEO was fully aware at the time the 2014-2018 collective agreement was negotiated that HRO did not exist, and that there would be consequences flowing from that, but decided to “lay in the weeds”. The second possibility is that at the time the parties were not alive to the implications of leaving the HRO exclusion in the collective agreement at a time when HRO itself did not exist. He submitted that he was not suggesting the first possibility. The second scenario is what probably happened, he submitted. He submitted that in those circumstances, the Board is required to give some meaning to the HRO exclusion language, which still forms part of the recognition clause. He submitted that the Board should conclude that the parties must have intended that the “status quo” would continue, namely, all employees who had been excluded under the HRO exclusion would continue to be excluded. - 25 - [58] Counsel distinguished the decision in Re Simcoe Muskoka District Health Unit (supra) on the grounds that there the position explicitly excluded, namely “program manager”, had not ceased to exist, whereas here HRO no longer exists. He submitted that Re Fairhaven Home for Senior Citizens, (1992) 25 L.A.C. (4th) 345 (Knopf) is more relevant to the present dispute before the Board. In that case the scope clause excluded from a nursing bargaining unit, “the Director of Nursing and persons above the rank of Director of Nursing”. The material facts and the issue for determination is set out at paragraphs 15 and 16: 15. That brings us to the case at hand. The determining facts are simple. At the time of certification, O.N.A. sought to exclude the position of the director of nursing and those above that rank. A certificate was issued on that basis. In the 1980s the director of nursing was the direct supervisor of nurses and herself performed several nursing functions, such as filling in for staff nurses on shifts and attending on doctors’ rounds. With the growth of the home over the 1980s and increased demands on administration and nursing staff, the home responded to these needs by creating two positions of assistant director of nursing. The evidence shows that these assistant directors of nursing became the first-line supervisors of the nurses, performed little, if any, direct nursing care and reported in turn to the director of nursing. 16 The question for this board thus becomes whether the parties’ collective agreement excludes or includes the position of assistant director of nursing from the bargaining unit. The case is factually unique from the ones cited to us. No other case deals with the position that the union admits to be managerial in a labour relations sense and which would be excluded from the bargaining unit by the Ontario labour Relations Board at the time of certification because of a conflict of interest with the rest of the bargaining unit arising out of the collective bargaining responsibilities on behalf management and the disciplinary and evaluative responsibilities over what could be fellow bargaining unit members. [59] Following a review of the judgement of the Divisional Court in Re Miller and Algoma Steelworkers Credit Union Ltd. (1974), 53 D.L.R. (3f) 669, arbitrator Knopf wrote at para. 16 as follows: - 26 - Two important principles emerge from this case. First, the arbitration board considering a scope clause is not to be governed by questions of whether or not the incumbents are “employees” within the meaning of the Labour Relations Act. Indeed, some collective agreements do accept managerial employees within their units. But secondly, and more importantly, boards of arbitration are told to look at the positions and not merely the titles of the positions to determine whether or not they fall within the exclusions from the bargaining unit. [60] Employer counsel stressed the second principle, that is, arbitrators should look at the positions themselves and not merely at titles. He urged the Board also to not simply look at the title “HRO”, but focus on the functions performed by the individuals. He cited the observation by arbitrator Knopf at para.19, that “It is the essence and the functions of the positions that boards of arbitration should look at, and not what titles management has decided to apply to the positions”. AMAPCEO Re-Reply [61] Ms. Pollock noted that in Re Fairhaven (supra), the position of Director of Nursing had been excluded on the basis of the exercise of managerial functions. The issue was whether a newly created position with a different title, but performing duties substantially similar to duties of the Director of Nursing, would also be excluded from the unit. In those circumstances, the arbitrator looked not at the title, but the duties of the new position. The arbitrator was able to conclude that the parties intended to exclude those exercising management functions when they excluded the Director of Nursing and those above. Therefore, she looked at the duties of the new positions, and concluded that they also exercised management authority, and therefore were also excluded from the bargaining unit. In contrast, the HRO exclusion is not based on performance of managerial or confidential duties. It was in addition to the “managerial and confidential” exclusion, which also was part of the recognition clause. The HRO exclusion was based on where individuals are employed, and not dependent on duties they performed. Therefore the reasoning in Re Fairhaven does not apply here. - 27 - [62] DECISION In this proceeding the employer took the position that there was a patent ambiguity in the language to be interpreted. AMAPCEO’s primary position was that there was no ambiguity in the language. Nevertheless, AMAPCEO counsel did not object to the use of the extrinsic evidence led by the employer. In fact, AMAPCEO referred to and relied upon that same evidence during submissions. In the circumstances, it is not necessary for me to decide whether or not there was a patent or even latent ambiguity in the language. I have used extrinsic evidence to the extent it aids in the task the Board has. This is a case where “the facts” as presented through the witnesses called by the employer, and contained in the exhibits filed are not in dispute in any significant way. The task of the Board is to construe the language of the collective agreement as it is found, giving the words and phrases their plain and ordinary meaning. That is the fundamental rule which an arbitrator must follow, unless there is compelling evidence that leads to a conclusion that the parties intended something different than what the plain meaning of the words convey. The whole exercise is to discover the intention of the parties when they used the words that appear in the collective agreement. [63] AMAPCEO argues that there is nothing ambiguous about the language “those employed in HRO”. If a person is employed in HRO he or she is excluded. It follows that a person who is not employed in HRO is not excluded under the HRO exclusion. From July 2014 HRO itself did not exist. Therefore, no one could possibly be employed in HRO after that. [64] The foregoing argument is very logical if the HRO exclusion language is read literally. However, as employer counsel correctly asserted, collective agreement language is not to be read in isolation. As stated in Brown & Beatty (see supra para.30), “In the interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object and the intention of the parties.” Therefore, the Board must consider whether the entire context, the - 28 - scheme of the agreement, and its object, would cause it to read the HRO language differently to indicate something other than what it conveys when read literally. (See the recent decision of this Board in Re AMAPCEO and TBS, 2015- 1394 (Dissanayake) as an example of the Board refusing to read particular words in the collective agreement in isolation. [65] The “context” that caused the Board in Re AMAPCEO and TBS (supra) to depart from the literal meaning came from other provisions of the agreement which it found revealed a different intention. In the present case there are no other provisions in the collective agreement that could possibly shed any light on the intention of the parties. Neither party suggested otherwise. The “context” the employer relies on comes from the “extrinsic evidence” adduced through its two witnesses. Counsel argued that both witnesses testified that they understood “HRO” to mean “a consolidation of the four divisions”, and that the HRO exclusion meant that “anyone involved in the delivery of HR services would be excluded”. He pointed out that AMAPCEO did not call any evidence to the effect that it had a different understanding. On that basis, the Board was asked to draw an adverse inference that AMAPCEO also had the same understanding as employer representatives did. [66] With respect, that reasoning is fundamentally flawed. In interpreting the collective agreement the Board’s task is to discover what the two parties intended the words to mean at the time those words were negotiated and agreed to. Employer counsel asserted repeatedly that when the HRO exclusion was agreed to in 2008 the parties intended to exclude anyone involved in the delivery of HR Services, and that by including the HRO exclusion in the 2014- 2018 collective agreement, the parties intended to continue the “status quo”. However, there is no evidence to support those assertions. Ms. O’Grady and Ms. Hartman candidly admitted that they had no involvement in the negotiations that led to the addition of the HRO exclusion in the 2008 MOA, its subsequent incorporation in the 2012-2014 collective agreement or the negotiation of the 2014-2018 collective agreement. No one involved in any of those negotiations - 29 - testified from either party. The Board also had no relevant documentary evidence, such as bargaining proposals, notes or minutes on discussions that took place during negotiations that led to the insertion of the HRO exclusion in 2008. The testimony of the two employer witnesses was only about what they, as managers, understood the HRO exclusion language in the collective agreement meant. This evidence, however, is not helpful and is not relevant, in discovering what the parties intended at the time the language was negotiated. [67] The employer’s evidence was about the historical context leading up to the 2008 negotiation of the HRO exclusion language. The thrust of it is to the effect that it was negotiated in a climate of a policy decision by the employer to centralize HR services, which had previously been largely decentralized within the various ministries. The goal was to ensure consistency and therefore, more efficient HR services across the OPS. That policy was supported by bargaining agents including AMAPCEO. The evidence was also that despite the constant organizational changes and changes in names, the HR functions of the divisions and branches did not change. [68] Employer counsel submitted that the Board should conclude that “employed in HRO” is not a reference to a legal entity but to a group of people performing duties related to delivery of HR Services. He urged the Board to have regard to the purpose of the provision and the extensive extrinsic evidence tendered through the two management witnesses. He relied on case law as supporting the proposition that the Board should not focus on the label or title of ‘HRO”, but should instead look at the functions of the persons who were excluded under the HRO exclusion. [69] As already noted, the extrinsic evidence is not useful to the extent that it in no way speaks to the intention, - a common understanding – of the parties when they agreed to the HRO exclusion language. As for the purpose of the HRO exclusion, it can reasonably be inferred from the evidence that there was agreement that the typical exclusion of “persons employed in a confidential - 30 - capacity in relation to labour relations” must be expanded. That typical “confidential” exclusion had been in the scope clause of collective agreements prior to the first appearance of the HRO exclusion language and continued thereafter. The HRO exclusion did not replace the “confidential” exclusion, but was in addition to it. [70] In crafting language to expand the exclusions, however, the parties did not proceed on the basis of duties or functions. Instead, they chose language based on where persons are employed. In the absence of any evidence, one can only speculate why they proceeded in that manner. However, it is clear that in the organizational structure, the HRO was a distinct unit with its own management and employees. The HRO was clearly depicted in organizational charts as a separate entity with its own “box” showing who formed part of it, and the chain of command up to the senior management. There was an identifiable group of individuals who were “employed in HRO”. The evidence is that those individuals included some who had been in the AMAPCEO and OPSEU bargaining units. Therefore, presumably those union members who had not been excluded pursuant to the “confidential exclusion” based on their job functions were nevertheless excluded because they were “employed in HRO”. With the advent of the HRO exclusion, they were excluded regardless of their job functions, because they were “employed in the HRO”. It may well be that the agreement was motivated by administrative convenience. That is, rather than scrutinize the duties and responsibilities of each individual working in HRO, to exclude everyone employed in HRO, whether or not they would be excluded under any other exclusionary language in the recognition clause. As noted, we have no evidence at all as to why the parties chose the particular HRO exclusion language. [71] The employer’s interpretation is very broad. It contends that the intention of the HRO exclusion in the current collective agreement is to exclude anyone involved in the delivery of HR Services. Such an interpretation has significant implications. If the employer is correct, every person who is involved in the - 31 - delivery of HR services to any degree, and in any manner, would be excluded no matter where the person is working at any given time. After the dissolution of the HRO, the reference to “HRO” in the language, as well the words “employed in” would be rendered redundant because it does not matter where the person is employed in. What matters is job functions. It would change the exclusion from one based on work location to one based on job functions, namely “involvement in delivery of HR services.” [72] The phrase “anyone involved in the delivery of HR services”, or words to that effect are not found anywhere in the collective agreement. There is no evidence whatsoever that there was any discussion, leave alone agreement, that the language would have such meaning. Employer counsel was advancing that interpretation based on testimony of two managers as to what they understood the exclusion to mean after it appeared in the collective agreement. As noted, that could not, and has nothing to do with, the intention of the parties at the time the language was negotiated. [73] In Re. Muskoka District Health Unit, (2009)100 C.L.A.S. 149 ( MacDowell ) at para.38, the arbitrator wrote “… Where it is said that the words mean something different than what they seem to mean on the surface … then we think that it is legitimate to ask whether there is anything in the context (the other words in the agreement, the bargaining history, the past practice etc.) which indicates that this is what the parties “must have intended”, even if they have not said so explicitly.” In the instant case, I have not been directed to any other provision of the collective agreement indicating that the parties did not mean what the words say. Indeed, employer counsel did not assert that there was any such provision. Any evidence of negotiation history, to be of assistance and relevance in the interpretation, must shed light on what the parties intended at the time the words at issue were negotiated. There is no such evidence, viva voce or documentary, before the Board. Similarly, there is no evidence of any past practice relevant to the intention of the parties when they added the HRO exclusion. - 32 - [74] Employer counsel’s reliance on a “functional approach” would be appropriate where, as in the cases he cited, the exclusion at issue was based on duties and responsibilities of the individuals. In Simcoe Muskoka District Health Unit (supra) at para. 248, the Board wrote: Given the history of the clause, and the way in which it is framed, it seems to us that it is very difficult to notionally “read in”, by inference, an additional unmentioned lower level classification, based upon some synthetic or constructive agreement of the parties, for which there is no evidence, and which is, intrinsically, very unlikely. Not to put too fine a point on it: in the absence of any evidence that additional excluded classifications were ever within the parties’ contemplation, and in the absence of any determination that they are “managerial” in a statutory sense, and in the shadow of Article 9.02 of the Agreement which discourages “inferences”, it is simply not plausible to read Article 2 as if it contained the phrase “… or such other equivalent or similar classifications as the Employer may unilaterally choose to create from time to time, below the level of program manager”. Similarly here, it is not plausible to notionally read the recognition clause as if it contained the phrase “and anyone involved in the delivery of HR Services wherever in the OPS they may be working in”. [75] In Re Simcoe Muskoka (supra), at least there was evidence that the Program Manager exclusion perimeter was based on the exercise of managerial functions. The employer sought to exclude the new supervisor positions on the basis that they also had similar managerial duties. In the present case there is no evidence that the HRO exclusion language was based on an agreement to exclude anyone involved in the delivery of HR services, as the employer asserts. Indeed, the evidence is that even after HR services were centralized within HRO, some HR functions, albeit a small portion, remained outside HRO, including in various ministries. The HRO exclusion would not have excluded anyone who at the time was “involved in the delivery of HR services”, but was not employed in the HRO. It is logical that when the parties crafted the language “employed in the HRO”, they would not have expected any staff other than those working in HRO would be excluded under that language. There is no - 33 - evidence that anyone employed outside HRO was ever excluded under the HRO exclusion. On the flip side, those employed in HRO would be excluded whether or not they were employed in a confidential capacity relating to labour relations or were involved in the delivery of HR services. That would not have been the test. The test in the language is, is the person employed in the HRO. In short, it is not appropriate to interpret the exclusionary language on an analysis of functions, when the exclusion itself is stated to be based on where persons are employed, and there is no evidence to indicate that the parties intended anything different than what the words say. To do so would be to amend or add to the recognition clause, which the Board is not empowered to do. [76] Employer counsel submitted that the Board “must give some meaning” to the HRO exclusion language still found in the collective agreement, and that it would be contrary to established cannons of interpretation to treat that language as mere verbiage without significance. While the presumption is that all words in a collective agreement are intended to have meaning, here the Board is faced with a most unique situation where the words refer to “persons employed in HRO”, but there is no HRO in existence. In the circumstances, the Board must still determine the probable intention or reason why the language was continued. [77] AMAPCEO was notified about the creation of two new ministries and the transfer of component parts of HRO to the two new ministries. However, there is no evidence that there was an announcement to AMAPCEO, to staff or even to management that HRO had ceased to exist, although it was explicitly disclosed that MGS was no more. While HRO no longer was depicted in the organizational chart, the Director who signed the letter of disclosure to AMAPCEO had “HRO” as part of his position title. Even assuming, however, that both parties were aware at the time the current collective agreement was executed that HRO had ceased to exist, it is an unreasonable leap to infer from that knowledge, that the parties, without any discussion, reached a common - 34 - understanding that the HRO exclusion language should be continued and that it would henceforth mean “anyone involved in the delivery of HR services”. [78] One possibility is that the parties, at least AMAPCEO, did not consider it important that the reference to HRO be deleted from the 2014-2018 collective agreement, because the presence of the HRO exclusion in the clause would no longer have any practical effect on anyone, since HRO itself did not exist anymore. The other possibility, the one that necessarily flows from the employer’s interpretation, is that AMAPCEO and the employer decided to continue with the HRO exclusion language on the common understanding that, since HRO was gone, anyone engaged in the delivery of HR services would now be excluded under the HRO exclusion, regardless of where they work. The parties have stipulated that during the negotiation of the 2014-2018 collective agreement, there was no discussion at all about the HRO exclusion or the recognition clause. It is simply not plausible that with no discussion whatsoever, the parties would come to a silent understanding that since the HRO had been dissolved, any individual involved in the delivery of HR services would be excluded wherever they end up working as the organizational structure is changed from time to time in the future by the employer’s exercise of its management rights. [79] Employer counsel argued that it would be absurd to think that the employer, without any discussion, would give up the expansion to exclusions it had obtained when it negotiated the HRO exclusion in 2008. While that argument makes sense, AMAPCEO’s opposite submission also makes equal sense. As AMAPCEO counsel argued, it is not conceivable that with no discussion whatsoever, AMAPCEO would confer on the employer the ability to unilaterally control exclusions from the bargaining unit through reorganizations of the workplace. It is indeed very strange that neither party raised the issue of what happens with the HRO exclusion during the negotiations, because at least the employer would have been clearly aware that the HRO itself was no more. However, that is the reality, we are faced with. The Board, nevertheless is -35 - required to ascertain the intention of the parties, without the aid of any extrinsic evidence relating to discussions at the bargaining table. [80]This has been an unusual case and the task of the Board was not easy. However, in all of the circumstances, the Board is persuaded that there is simply no evidence, explicit or implicit from the context, that could reasonably lead to a conclusion that there was a consensus or a common understanding between the parties that in the current collective agreement the HRO exclusion language would mean something other than what the words say plainly and literally. Those words have meaning. They convey that persons to be excluded under it are “those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR units”. As long as that exclusion remains in the Collective Agreement, and there is no HR Ontario, it will be of no practical effect. Any exclusions from the bargaining unit would have to be under some other provision in the collective agreement or statute, unless and until the parties address through negotiation, what appears to be an anomalous situation. [81]As a result of the foregoing conclusion, the dispute filed by AMAPCEO is upheld. I remain seized with the dispute in GSB file No. 2013-3291. Dated at Toronto, Ontario this 28th day of September 2016. Nimal Dissanayake, Vice Chair