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HomeMy WebLinkAbout1992-1106.Union.95-12-18 .0- r, , ONTARIO EMPLOyES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 'J, \$ \ \:; '\ cP"\ 1111 GRIEVANCE COMMISSION DE , ar~ .\ SETTLEMENT REGLEMENT BOARD DES GRIEFS 1 180 DUNDAS STREET WEST SUITE 2100. TORONTO, ONTARIO. M5G lZ8 TELEPHONEITELEPHONE (416) 326-1388 , 180 RUEDUNDAS.OtJES'T~fj(jREAU21oo, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 ''''' , GSB # 1106/92 i , OPSEU # MCS-U572 ! }, "l r> 1'"'(")~ ~ (,.. ;.....'... /. '~~j IN THE MATTER OF AN ARBITRATION I .1 i. -- Under , ~ . -..... .- I. r , ! ') .-.. ~H~ CROWN EMPLOYEES COLLECTIVE BARGAINING ACT \ Befor~ THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE S Kaufman Vice-Chairperson FOR THE A Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Officer Ministry of the Solicitor General & Correctional Services \ HEARING December 1, 1995 \ '-. I .1 ~ .. ., 1 DECISION \ I Jurisdiction: The merits of this grievance were originally scheduled to be heard on July 15, 1994 before a panel composed of Vice- Chairperson Roberts, Mr. Carruthers and Mr. Collict. The parties believed that the merits of the grievance before that board would by and large be determined by the decision of another panel chaired by Mr. Dissanayake concerning the Whit- by facility. Consequently, on July 15, 1994 they agreed to adjourn to await that decision. In granting the adjournment, the Roberts board indicated that it would remain seised of the matter, and that should any matters come to the parties' attention which might change the decision to adjourn and move the panel to go forward the panel would, upon request,' con- sider reconvening. The panel so indicated to ensure that the individual employees who might be affected by the adjournment and u~timate outcome of the grievance were not deprived of any rights as a result of the adjournment. The grievance before the Roberts panel then concerned certain unclassified positions at the Quite Detention Centre which had not been converted to classified positions, allegedly contrary to Art. 3.15 and Art. 4. The grievance was scheduled again for hearing on May 11, 1995 The Dissanayake decision had been released and as a result of its determinations, the parties signed a Memo- randum of Settlement dated May 8, 1995. As a result, the hearing scheduled for May 11, 1995 did not proceed. That Memorandum provides: MEMORANDUM OF SETTLEMENT IN THE MATTER OF A GRIEVANCE OF union Grievance Quinte Detention Centre GSB File 1106/92 Date and subject of Grievance May 5, 1992 - Unclassified .1 2 BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) -AND- THE CROWN IN RIGHT OF ONTARIO (Ministry of the Solicitqr General and Correctional Services) (The Ministry) The parties agree to a full and final settlement of the above-noted grievance without precedent and without prejudice to any future and/or (similar matter on the following terms: 1 Management at the Quinte Detention Centre ('Management') agrees to create ten (10) clas- I sified positions for Correctional Officers at the Qilinte Detention Centre. 2. Management agrees to create one ( 1) cHassi- fied position for a Cook at the Quinte Deten- tion Centre. 3. The parties agre~ that the positions created pursuant to paragraphs 1 and 2 will be filled in accordance with Article 24 of the Collec- tive Agreement. Any positions remaining after placements under Article 24 have been exhausted will be filled in accordance with the Collective Agreement. ( 4. Management agrees that any postings of posi- tions arising out of paragraph 3 will be pos- ted no more than sixty (60) days after the signing of thi~ Memorandum of Settlement. 5 The parties agree that the issue of the use of unclassified Nurses is the sole issue remain- ing outstanding by virtue of this Memorandum of Settlement. As such, the parties agree to adjourn the outstanding matter sine die in the expectation that a review of the use of unclassified Nurses will be completed in a reasonable time. 6 Subject to the terms of paragraph 5, the Union agrees to withdraw the above-noted grievance. Dated this 8th day of May, 1995 (signature) (signature) (signature) For the Union For the Ministry " 3 The issues in dispute arising frb~ the implementation of the above Memorandum of Settlement in G.S.B. 1106/92 have come before me as a single arbitrator. Th~-RoPerts panel was scheduled to hear this grievance y IS:. . on JUru94 CECBAr 1993, S O. 1993, c. 38 came lnto force 0 ruary 14, 1994 and some time thereafter, under the authority of s. 6 (3) and s. 49 thereof, matters which were formerly required to be heard by tripartite panels were scheduleq before single Vice-Chairs of the GSB. r Notwithstanding the legislative amendments which permit- I ted disputes to be decided by a single Vice-Chair, a panel which indicates it will remain seised of a grievance will ordinarily r~tain jurisdiction over it until a full and final resoiution is reached. The Roberts panel did not hear evi- I dence. The parties resolved the dispute by means ot their Memorandum of Settlement without reconvening before the Roberts panel. They advised me that they were both agreeable tq proceeding with their dispute as to implementation before a single arbitrator, and before me. In view of all the fore- going, I determined that it was appropriate to accept juris- diction over this matter, and proceeded to hear the evidence regarding the disputes arising from implementation of the parties' settlement. The Merits: Quinte Detention Centre (QDC) Local 467 President and CO Thomas John O'Neill and Eastern Regional Manager Deborah Newman gave evidence concerning the implementation of the Memorandum. It was not in qispute that the purpose of the original May 2, 1992 grievance was to obtain recognition that certain unclassified positions should be classified, and posted, to enable unclassified QDC employees to apply, and to maximize the number of unclassified QDC employees who ultimately might be succes~flll to~ thp ~J~~~ifipd pn~itions. It was agreed "- ----.-------- 4 \ that OPSEU '.s intentions are to minimize the effect of down- sizing on classified as well as qnclassified employees. It was also agreed that as a general principle employees on the surplus list have a greater claim to classified positions than those who are not on the surplus list. It was common ground t~at within 60 days of May 8, 1995, 10 classified positions of General Duty Officer (Correctional Officer 2) and 2 classified positions of Food Service Officer (Cook 2) [an additional vacancy arose for a Cook 2] were cre- ated, cleared the surplus list, were assigned clearance num- bers, and were posted. Between May 8, 1995 and the dates ot posting, the Corporate Redeployment Unit did not identify any surplus employees eligible for the newly-created vacancies. i It was not in dispute that employees who are placed on the ( surplus list under Art. 24 remain on the list for 6 months and th~t if surplus employees had been identified as -eligible for each of the positions during the 60 days, the terms of the Memorandum would not have obliged the employer to have posted them. The provincial elections were he~d in June, 1995, and the government changed. The General Duty Officer positions were posted on July 7, 1995, with a closing date of July 20, 1995. The Food Service Officer position was posted on July 4, 1995, with a closing date of July 24, 1995. The clear- /" ances were discussed at an Employee Relations Committee (ERC) meeting on July 17, 1995. The Minutes of the July 17 ERC meeting indicate with reference to C02 positions "This com- petition is not expected to be completed until-the end of August" . The Ministry received applications until July 20, 1995 for the Cook 2 positions and until July 24, 1995 for the CO positions It has retained those applications. On July 24, 1995, Assistant Deputy Minister, Correction- al Services Division Neil T. McKerrell wrote the following memorandum to Regional Directors, Regional Managers, Superin- ~ -. 5 tendents, and Regional Personnel and Regional Business Admi- nistrators: SUBJECT INSTITUTIONAL RECRUITMENT PREEZE Effective immediately, I am ordering a freeze on all recruitment for positions in all institutions throughout the Correctional Services Division The current postings for superintendent positions at the Quinte Detention Centr~ and the Sudbury and Windsor Jai1s will be exempt from this freeze and recruitment may continue. \ Employees who are currently redeployed and those who are in receipt of notice of layoff, or who are returning from Workers' Compensation where the reinstatement obligation exists for the ministry, may continue to be directly assigned to vacancies across the division. Competitions that are in process are to be frozen, unless a job offer has been made to the -successful candidate in writing prior to. this date. Neil T. McKerrell It was received on or about July 2'4, 1995. Because the I memorandum did not exempt postings and competitions being held pursuant to Memoranda of Settlement, the employer did not proceed with the interview and selection process for those positions. On August 2, 1995, Mr. McKerrell issued the following Memorandum: MEMORANDUM TO: Distribution List FROM: Neil T. McKerrell Acting Deputy Solicitor General and Deputy Minister of Correctonal Services DATE: August 2, 1995 SUBJECT: STAFFING FREEZE Effective immediately Senior Management Committee has decided to freeze the staffing of all Ministry vacancies, lateral transfers and temporary assign- ments. This action is being taken to ensure that I .j 6 this Ministry is responding in a fiscally respon- sible way to the budgetary issues facing Govern- ment The freeze will continue until further notice. ) For any exception to the restriction on hiring, a business case must be prepared and submitted to the Division Head. This business case should include cost implications to the ministry. The authoriza- tion to approv~ .such a request will rest with each Division Head. Each (illegible) should be reviewed on a case. by case basis to ensure that only those of a critical or essential nature are approved. Authorization for exemptions are not to be delegated. I Unclassified Correctional Officers, Nurses, ... may - be renewed without requesting an exemption to the freeze. However, full time contracts or temporary assignments must be cleared through the Ministry and Corporate Redeployment. New unclassified con- tracts require the approval of the Division Head. " There is no change to the external hiring restric- tions that have been in place since December 1993. Exemptions to external restrictions may be autho- rizedby the Deputy Minister. Exemptions for Senior Management Group vacancies.... Seni~r Management has given special consideration to those situations where recruitment was in prog- ress. Therefore, where a verbal offer has been made and a start date arranged, no exemption is required. Likewise, those situations where the vacancy was created directly as part of a re-orga- nization and will be used to redeploy existing internal surplus staff, no exemption is required. ( The Consulting Section in the Human Resources Branch will record and consolidate all exemp~ions to the staffing freeze. As well, the consultants will report on the number of exemptions processed and will provide as required the ~M's rationaliza- tion for the decision to hire employees. Further information on staffing issues will be provided as they become available. Thank you for your cooperation in this matter. Neil T McKerrell Ms. Newman advised that as a result of ongoing discus- Sl.ons regardl.ng the new government's restral.nt l.nl.tl.atl.ves, 7 management became aware of the possibility that 7 of 12 jails in the Eastern Region would be closed The 'memo of July 24, 1995 notified the Ministry's senior administrators to freeze \ recruitment. As a result, existing vacant positions were frozen, in order to facilitate the placement of surplus staff, including staff who were anticipated to become surplus in the event of the closure of the region's smaller jails. The July 24 memo directed her to freeze any competition in process unless a written offer had been made. When she received Mr. McKerrell's August 2, 1995, he was then the Acting Assistant Deputy Minister with control over the entire Ministry. Mr. McKerrell extended the freeze that had been imposed on Correctional Services to the entire Mini- stry and "that r~ally clinched the freeze". When his July 24, 1995 Memorandum was received, Human Resources was in the process of reviewing the applications for both competitions. That memo stopped the competition. The May 8, 1995 Memoran- dum of Settlement was considered in light of the July 24 and August 2 Memoranda. Management concluded that the circum- stances of the competition for the 12 positions at QDC did not meet the exceptions in the McKer~ell Memoranda, and the competition therefore cou~d not proceed. The employer intends to retain the vacancies until it has satisfied its obligations to place surplus staff, which may arise from the government's restraint initiatives. It will e~ther staff the positions with surplus employees, or, if the path is cleared, which is anticipated to be unlikely, and if some positions remain vacant, the employer will consider the competition process. The Ministry records these positions as vacancies available for surplus staff with the Ministry. ~ Ms. Newman and the QDC interim Deputy Superintendent discussed Mr. McKerrell's July 24, 1995 Memo shortly after "- she received it. The interim Deputy Superintendent advised her at that time that the existing unclassified staff were covering for classified staff on vacations and were working to their maximum, and that more unclassified staff were need- 8 ed. with the permission of the Assistant Deputy Minister, in about late August, 1995, 5 additional unclassified CDs were hired for QDC QDC currently has an allotment of 23 plus 5 unclassified CO positions. If surplus employees fill all 10 classif~ed positions, the last 5 current unclassified em- ployees, subject to attrition among them, would not be re- appointed. This would return the unclassified allotment to 23. The original grievance included a claim that some un- classified nursing positions should also be classified under Art. 3.15. In their May 8, 1995 Memorandum ,of Settle~ent the parties agreed to adjourn that claim pending a review by the employer. until December 1, 1995 the Union remained uninfor- med as to the results of the review and whether the Ministry would create any classified Nurse positions at QDC. Ms Newman said that she requested a review probably in May, 1995, as a result of which a formal report was issued in september of 1995, containing recommendations regarding full- time staffing and indicating the existence of a shortage of classified staff in the QDC Health Care Unit and problems arising from an inefficient schedule. QDC received a new Superintendent and Deputy Superintendent in September, 1995. It was necessary to allow the new QDC heads of administration time to familiarize themselves with the operations of the Health Care Unit and review the report. They reviewed the report and around the beginning of November, met with Ms. ~ Newman about it. In the last week of November, 1995, she asked QDC administration to prepare a "business case" for forwarding to the Assistant Deputy Minister for an increase in the classified staff in the Unit. As of December 1, 1995, the business case was not yet complete and she expected to receive it by December 15, 1995. She and the Regional Direc- tor intend to review it and forward it to the Assistant Depu- ty Minister for a decision. The report and/or its recommen- ( "" "- 9 dations had not been disclosed to the Union pending the ADM's decis ion,. ( ( Mr. O'Neill said that in the past, because of the "with- in 40 kIp." provisions in Art. 24, Rideau Correctional Centre e~ployees had moved into QDC vacancies, in order to c~eate vacancies into which Perth jail employees could transfer. He also understood that the employer's practice has been to cancel or withdraw competitions only before a job has been offered, but that once a job was offered as a result of a competition, it carried the competition to completion. (Mr. Mously advised 'that once an offer has been made, rather than accepted, by agreement of the parties, the Ministry's prac- tice is to fill the position from, the competition results.) Ms. Newman said that in 1993 the Provincial Auditor's report noted that newer jails, such as QDC, were more cost- effective per diem, especially when the cost of administering the older Jails was factored out. The Ministry closed the Perth Jail in October of 1994, at which time 19 bargaining unit staff, some of who were classified, were identified as surplus. Through a combination of good luck and good manage- ment, she said, the entire classified staff of the Perth Jail was placed in existing vacancies in other insti tutions-, including QDC. Management had for some time beep holding vacancies as they arose, some for several months, for Perth staff. As a responsible employer, the Ministry must hold va- cant positions for surplus employees, she advised. \ The Arg'uments: For the Employer: The employer proposes to hold the applications for the competition in abeyance, and reserve the positions for an in- determinate period of time for surplus employees. In so do- ing, it is not in breach of the Memorandum of Settlement. The words "will be filled in accordance with the Collective 10 Agreement" in para. 3 of the Memorandum were intended to mean in accordance with Art 4 Para. 3 of the Memorandum speaks to compliance with Art 24 and indicates that the parties in- tended that the requirements of Art. 24 be met before the va- cancies were filled under Art 4. The employer has conducted itself in conformity with the spirit as well as the letter of '\ the Memorandum and the Collective Agreement, which recognize that surplus employees have priority, within the terms of I Art. 24, to vacancies,. It is not relying on the doctrines of frustration or impossibility. This case should determine a) whether the employer may delay the posting of a position; b) whether it may cancel a competition once posted, as long as it does so in good faith; and c) whether the claims of surplus employees to vacan- cies end when the vacancy passes the clearance process. ( Art. 24 contains no restrictions as to the claims of surplus employees to any vacancy. Art. 24 says an employee "- meeting that article'ls requirements can have a position any / time it is vacant. Art. 24.6 regarding assignments to vacan- cies does not specify that' the assignment ocqur within the first 30 days of the vacancy. The vacancy exists until some- one is placed in it. As Magliocco (213/93) indicates that the employer .can cancel a competition after tentative job 1 offers have been made, and not be in violation of Art. 4, the employer did not violate Art. 4 in this case. As GSB 3094/ 91, cited at p 11 in Mag'~iocco, supra, indicated that ma- nagement has the right to determine comple~ent, the non-fill- ing of a vacancy is not within the jurisdiction of the GSB. Magliocco extended management's rig~t to cancel a competition from.a situation where the position no longer existed to a situation where lack of funding delayed the completion of the facility where the position was to be taken up. The prin- ciple in Magliocco applies to management's right to fill vacancies with surplus employees ) 1 I ! I The employer's obligation under para. S of the Memoran- dum was a review of the nurses and the use of their time in a reasonable period of time. It has complied with that obliga- tion within a reasonable period of time The review is still in process. There is no indication that the process has bro- ken down. The Memorandum contains no obl~gation to share the findings of the review. In the absence of a breach of the \ Memorandum, such as the exceeding of a reasonable time limit or a finding that the employer is attempting to delay a reso- lution, no reason exists for the setting of a time limit for compliance. The employer requests a finding that it has acted in compliance with the spirit of the Memorandum of Settlement. For the Union: The union submitted that Art. 4.6.2 gives priority to Art. 24 in the filling of vacancies, and that in para. 3 of the Memorandum of Settlement the parties contemplated the priority of Art. 24 over Art. 4 by stipulating a 60-day clearance period, after which the vacancies "will be" posted Once the clearance numbers had been obtained, the Art. 24 priority was satisfied. If the priority of Art. 24 is not determined on a once and for all basis, it entirely displaces l the rights of posting and completion of the competition the parties contemplated in their Memorandum. Art. 4.6.2 and Art. 24 justify an administrative delay for a position to clear the surplus list, but not an indefinite delay. The only issue to be decided is whether the Memorandum of Settle- ment and the Collective Agreement required the employer to proceed with the competition. As the staff complement had been determined by the Memorandum of Settlement and the em- ployer is not proposing to reduce the complement of classi- fied employe~s, the employer's case and submissions on that topic have no bearing on this dispute. The union requested a direction that the employer com- plete the competition with the candidates who applied. in the 12 ~ original competition, and not a new compet~tion, so that the results would reflect what would have occurred had the em- ployer complied with the terms of Memorandum of Settlement after the closing date for receipt of applications, and an interim order directing the employer not to fill the posi- tions before a final decision is rendered. It further requested that a time limit of two weeks to one month be established within which the ,employer is requir- ed to declare the number of nurses' positions that will be converted. It argued that in view of the grievance having commenced in 1994 and the matter now being heard at December, 1995, such a time limit is essential in order to bring a resolution to the grievance. It submitted that the union is entitled to finality and to have the matter taken out of the employer's discretion. Considerations: Counsel for both parties agreed that a Vice-Chair of the GSB has the authority to enforce the settlements of the par- ties to the Collective Agreement. This dispute brings into issue the status of Memoranda of Settlement in relation to subsequent Ministerial direc- tives. It also brings into conflict the compelling policy reasons behind boards of arbitration giving effect to par- ties' settlements and the compelling policy reasons behind the employer's reasonable intention to give priority over vacancies to employees 'on the surplus list. The July 24 and August 2 Memoranda address the require- ments and policy of the Ministry as of those dates. In view of the Ministry's policy regarding withdrawal of competitions prior to making a job qffer, the Memoranda have potential retrospective application. They do not address pre-existing \ agreements between Ministry and the Union, in this cas~ to convert unclassified positions to classified, and, if any positions remain after Art. 24 placements have been ( \ 13 exhausted, to post t'he vacanC1.es and to fill them within 60 days of May 8, 1995. The July 24 and August 2 memoranda represent reasonable, responsible fiscal and administrative interests and policies. In Edgett,et al (2476/90) at pp. 10 - 11, Arbitrator Dissanayake noted that both private arbitrators and the OLRB recognize the importance of supporting the settlement pro- cess, and that that support serves sound industrial relations purposes Those purposes include the prompt and informal resolution of disputes, and the avoidance of the expense and delay of arbitration as we~l as the avoidance of the imposi- \ tion on the parties of a resolution by a third party, which is generally recognized as less desirable and less satisfac- tory from the point of view of business efficacy than a reso- lution the parties have fashioned for themselves. If arbi- trators do not uphold the parties' settlements, or set them aside on technicalities or for less than very serious rea- sons, the purposes behind such settlements and the .certainty of the settlements are defeated. That discoura,ges settle- ments, and more parties will proceed to arbitration than would otherwise., and the system of pispute tesolution would slow down, leaving disputes unresolved fo~ longer periods. Thus, the consequences of not upholding negotiated settle- ments are not in tne interest of either partX' In view of these consequences, arbitrators, the OLRB, and this Board will assume jurisdiction over the implementation and enforce- ment of the terms of the parties' pre-arbitration settlements and will only decline to enforce them for very compelling reasons. This case turns on. its specific .facts and the parties' intentions when they drafted the May 8, 1995 Memorandum of Settlement. The terms of the Memorandum of Settlement must be construed by the parties' shared intention at the time they entered into it. It was not in dispute that the employer had complied W] t-h pArA_ 1 And-2 af t-hp- MAY 8, 1995 Mp-morandum in convert- 14 ing ten C02 positions and one Cook 2 position to the classi- I fied service ! , i The employer acknowledged that the phrase in para. 3 "will be filled in accordance with the Collective Agreement" was a reference to Art. 4. Thus, by the statement in para. 3 "Any positions remaining after placements under Article 24 have been exhausted will be filled accordance with the Col- lective Agreement" the parties ~xpressed the intention that I after pl~cements under Art. 24 were "exhausted", if any of the vacancies were not yet filled, the employer would post them in accordance with Art. 4. If the terms in para 3, The parties agree that the positions created pursu- ant to paragraphs 1 and 2 will be filled in accor- dance with Article 24 of the Collective Agreement. and Any positions remaining after placements under Article 24 have been exhausted... are read in isolation from para. 4 of the Memorandum of Set- tlement, they may be construed as meaning that at any time before any of the newly-created vacancies in the cla~sified service have been ,filled, a surplus employee has a prior claim on it, such that there is no obligation to complete a competition, provided no offer has been made. It is possible to construe those terms, in isolation from para. 4, and in view of the absence of clearly stated time limits in Art. 4 \ and 24 of ~he collective agreement, as meaning that there are no time limits within which placements under Art. 24 "have been exhausted". One of the consequence of the employer's interpretation wouid be that the placements under Art. 24 into the positions created pursuant to paragraphs 1 and 2 of the Memorandum would only be "exhausted" when all the posi- tions were filled under Art. 24. Aside from the apparent circUlarity of that interpretation, the interpretation ad- vanced by the employer would also result in para. 4 having no meaning .1 1 5 In para 4 of the Memorandum of Settlement, management specifically agreed to post the remaining positions which had cleared the surplus ~ist, within 60 days of May 8, 1995 The employer's interpretation is premised upon it having implicitly reserved the right to withhold the remaining posi- tions from posting after clearance numbers were obtained. I am unable to find that implicit reservation in the language of the Memorandum of Settlement or in the language of the Collective Agreem~nt, despite the alleged policy or practice of the employer regarding the withdrawal of competitions or posted positions before a job has been offered. Having re- gard to the very specific time frame stipulated in para. 4, and reading para. 3 together with para. 4, I conclude that the language agreed to by these parties supports another interpretation, that the parties intended the obtaining of clearance numbers to signify the "exhaustion" of the Art. 24 placements in para. 3 for the purpose of these competitions, The canons of construction require that an agreement be read in its entirety to construe the parties' intended mean- ( ing and that an interpretation which results in an absurdity be avoided if another interpretation can be found which dOes ~ hot have that result. As stated, the employer's interpreta- tion would render one of the provisions of the parties' ag- reement meaningless, i.e. absurd. It is doubtful that that was their intention, and for the foregoing reasons, that in- terpretation must be rejected. I conclude that on May 8, 1995 and until the July 24, 1995 memo, the partie~shared the intention that the terms of paras. 3 and 4 of the Memorandum of Settlement, read in con- junction with one another, gave the employer 60 days from May I ) 8, 1995 to determine if there were any surplus employees who might have a claim under Art. 24 to the newly created and vacant classified positions, and that once the clearance numbers were obtained, up to 10 C02 positions and 1 Cook 2 position which had not been filled under Art 24 would be posted, within 60 days of May 8, 1995, and that thereafter 1,6 the postings would be filled by competition, free and clear of any-claims of surplus employees I conclude that the parties intended the words "will be/posted" in para. 3 of the Memorandum to be read as mandatory, i.e. as compelling the \ I employer to post the vacancies within 60 days of May 8, 1995, I provided the conditions in para. 3 had been.met. I find that once the clearance numbers were assigned to the positions, the condition, in para. 3 was met. I find that on May 8, 1995, the parties shared that view of both the spirit and the I letter of their Memorandum of Settlement. \ I conclude that on July 24, 1995 or shortly th~reafter, owing to Mr. McKerrell's memos, management interpreted its obligations under the May 8, 1995 Memorandum in a manner that departed from the former shared view of the spirit and the letter of the Memorandum. I find that it did so with the best of intention$, in the belief that it was doing so a) in compliance with two Ministerial directives, b) in compliance with its past practice in the cancellation of competitions in progress, c) in compliance with the spi~it of the Memoran- dum of Settlement, which contemplated, within certain limits, giving priority to surplus employees, and d) in the interest of reserving as many vacancies as possible for employees it was anticipati~g would be declared surplus in future. Memoranda of Settlement are binding contracts between the parties. They are as binding as Collective Agreements As such, their terms and provisions can only be set aside by \ further agreement of the parties or by superceding legisla- tion or regulation, or impossibility or frustration as it is enunciated in the common law of contract An arbitrator's authority is drawn from legislation and the parties' Agree- ments, including their Settlements In the absence of a fur- ther agreement, or overriding legislation, or impossibility or frustration, an arbitrator is obliged to give force and ( \ 1 7 effect to the parties' expressed intentions as s/he inter- prets them, as of the time they drafted and signed their set- tlement or agreement. Decision: "- The union's dispute regarding implementation succeeds for the reasons stated. The issue of remedy remains. Where the terms of a contract or settlement have not been fulfilled, the purpose of a remedy is to put the parties / in the position they would have been if the agreed-to terms had been met. The fact that this is a union grievance does not alter the obligation to fashion a remedy of that nature. The employer is therefore directed to forthwith complete the competitions as between the Applicants who applied for the posted positions (EX. 3a and 3b) prior to or by the closing dates in the postings, and to refrain from applying the tenus of Art. 24 to the positions., i.e. from filling the positions from the surplus list, before the completion of the competitions herein directed and before the filling of those positions through the competitions. The union's complaint regarding para. 5 of the May 8 Memorandum of Settlement arises in part from a lack of commu- nication until the date of the hearing as to the status of the review and in part from the fact that this grievance originated in 1992. On balance, the employer has endeavour- ed to adv~nce the review within a reasonable period of time since May 8, 1995. It is apparent, however, that events such as the change in government in June, 1995 and the change in the administration of QDC in September, 1995 overtook its ef- forts to move the review along more quickly About 6 months h~ve passed since Ms Newman requested the review contempla- ted in para. 5. The intervening evento appear to have slowed ~ . . 1 R the process by about 2 months There is no suggestion that r' the employer is deliberately delaying its decision with res- pect to the nursing positions. It would be premature, in these circumstances, to set or direct a time frame within which the employer is compelled to state its intentions as to whether it will convert any of the nursing positions to the classified service. However, the union is entitled to know the employer's intentions at the earliest date that the Ministry's adminis- trative requirements will permit, and the interests of im- proved relations between the parties ~ill likely be furthered if the employer's inte~tion is communicated to the Union sooner rather than later. I will remain seised with respect to any further issues which may arise from the grievance and the implementation of the parties' May 8, 1995 Memorandum of Settlement. Dated at Toronto this 18th day of December, 1995. Susan D. Kaufma vice-Chair