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HomeMy WebLinkAboutUnion 16-02-181 IN THE MATTER OF AN ARBITRATION Between: CARILLION CANADA INC. ("Carillion") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("OPSEU") and in the matter of Policy Grievance 2012-0317-0013 Russell Goodfellow — Sole Arbitrator APPEARANCES FOR CARILLION: Michael Torrance, counsel Robert Oddson Katherine Harrington Alex Mercer APPEARANCES FOR OPSEU: Ed Holmes, counsel Sean Wilson. Roy McKinnon A hearing was held in this matter on October 19, 2015 and February 9, 2016 1. Pursuant to section 33(1) of the Public Transportation and Highway Improvement Act, the Ministry of Transportation ("Ministry") maintains certain highways and keeps them in good repair in the Province of Ontario. The Ministry achieves this mandate, in part, through third party service providers. 2. On March 23, 2011 the Ministry advised OPSEU that it would be issuing a Request for Proposal ("RFP") on April 8, 2011 to obtain a third party service provider for the Huntsville area. The contract would commence on May 1, 2012. 3. The RFP for the Huntsville Area Maintenance Contract (AMC 2011-10) (the "AMC") was issued. Carillion Canada Inc. submitted a proposal and was ultimately awarded the AMC. 4. Prior to Carillion assuming responsibility for the AMC, the services were the responsibility of the Ministry. The employees that performed the work were directly employed by the Ministry and were represented by OPSEU. Once Carillion assumed responsibility for the AMC, C a r i 11 i o n employees were engaged in the performance of services under the AMC. 5. One of the elements of the AMC was to provide winter maintenance including salting, sanding and ploughing roads_ For this work, Carillion has hired additional employees for the winter season._ Carillion did hire additional employees for the winter 2012-2013 season. Carillion did not offer employment for the 2012-2013 season to all former employees that had previously performed these services for the Ministry. 6_ OPSEU filed a grievance dated November 12, 2012 claiming that Carillion violated the collective agreement by not hiring all of the employees previously employed by the Ministry. Carillion denies that it had an obligation to hire these employees. The material question at 2 issue in this arbitration is whether in the circumstances of this case Carillion had an obligation to hire the employees that previously worked for the Ministry. 7. The Parties presented a number of documents on consent and called some additional viva voce evidence. In the circumstances of this case they agreed to an expedited process and to have a brief decision issued to resolve this dispute. I have carefully considered all of the evidence including the terms of the RFP and documents exchanged relevant to the terms of the RFP in arriving at the decision in this matter. S. The RFP and much of the accompanying documentation provided that the successful contractor, Carillion in our case, would treat the transfer of work as a sale of business/transfer of an undertaking for the purposes of the sale of business (successor rights) provisions of the Labour Relations Act, 1995 ("LRA, 1995") as modified by Section 10 of the Crown Employees Collective Bargaining Act, 1993 (CECBA, 1993). The documents also provide that Carillion was to advise the Ministry which of the Ministry employees it offered continued employment and which it did not offer continued employment_ The RFP also provided that OPSEU would continue to represent employees of the contractor pursuant to the successor rights provisions of the LRA, 1995. 9. In a letter issued by the Ministry to Carillion dated April 17, 2012 the Ministry advised Carillion that, "the Crown will be responsible for all severance entitlements for employees that do not receive a job offer from the successor employer". It does not appear that OPSEU was copied on this correspondence. 10. I have carefully considered all of the evidence including the terms of the RFP and the documents exchanged relevant to the terms of the RFP in arriving at my decision in this matter_ In keeping with the Parties` request to issue a brief decision and in light of the very specific and unique circumstances of this case I find as follows: 3 a) It was agreed between the Ministry and Carillion in the AMC that the transfer of the work is a sale of business/transfer of an undertaking for the purpose of the sale of business (successor rights) provisions of the LRA, 1995 as modified by Section 10 of CECBA, 1993. In making this finding I take note of the Order of the Ontario Labour Relations Board, OLRB File No. 2848-12--R, further to an application filed under sections 69 and 1(4) of the LRA, 1995; b) Carillion was not obligated to offer continued employment to Ministry employees; c) I note that the Ministry advised Carillion that the Crown would be responsible for all severance entitlements for the employees not offered continued employment by Carillion. 11. The parties did not pursue any jurisdictional objections for the purposes of this specific grievance. DATED at Toronto this 18th day of February 2016. Russell Goodfellow — Sole Arbitrator