The URL can be used to link to this page

Home My WebLink About1992-3380.McManus.93-10-18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO r", ~ GRIEVANCE COMMISSION DE - -- 1111 , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPfE (416) 326-1396 3380/92 IN THE MATTER OF AN ARBITRATION Under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McManus) Grievor - and - The Crown in Right of ontario (Ministry of the Environment) Employer BEFORE o. Gray Vice-Chairperson M Lyons Member F. Collict Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Strang EMPLOYER Counsel Legal Services Branch ~ Management Board Secretariat HEARING september 8, 1993 "\ f'-- (-- \~~~-;. ~ AWARD On October 1, 1992, the grievor received a letter from the employ~r advising him that his position would be eliminated at the end of that year He was then a regular part-time employee ("RPT"). At the time of the letter, an RPrin an eliminated position had no right to any minimum period of notice of ter-mination, nor to maintain employment by "bumping" into another position occupied by a less senior RPT The grievor's employment came to an end at the end of 1992 He grieved. The gri~vance raises a number of issues. The parties have asked us. to deal first with one of those issues. whether an agreement made on December 4, 1992 applied to the grievor thereafter One of the other questions which may be in dispute is whether the action which brought the grievor's employment to an end was a lay-off, as the employer claims. For the purpose of dealing with this first issue, however, we are to assume that thegrievor was laid off. OPSEUand Management Board of Cabinet made an agreement in writing which (the parties agree) came into force on December 4, 1992, when it was signed on behalf of Management Board (having earlier been signed by representatives of OPSEU). The agreement provided that when regular part-time employees (RPl"S) cannot be placed in other RPT positions within 40 Ion in the same Ministry and consequently are to be laid off, the RPl' positions and the incumbents shall be converted to full time positions and, at the same time, the positions declared surplus. The affected RPI' employees shall be assigned to those full time positions on a job sharing basis in accordance with Article 7.8 of the Collective Agreement and will have full access of [sic] the provisions of Article 24 of the Collective Agreement. , For ease of reference, we will refer to this agreement as the "Surplus RPT's agreement." '-- ) The parties agree that the employer was not entitled to simply place a surplus RPT in another RPr position within 40 kilometers in the same Ministry before the ~ "" r~- C. '.:;'.:',:. . "'A - 2 Surplus RPT's agreement was made, and that this agreement gave the employer both the right and some obligation to do so. They also agree that the reference to job sharing in accordance with Article 7.8 accomodates having someone whose position is converted to a "full-time" position continue to work less than full-time hours. Article 24 of the collective agreement .gives certain rights to full-time employees whose positions are declared surplus. Article 24 is not listed in Article 59, which lists the provisions of the collective agreement applicable to RPT's. From the arguments we heard, it appears that the parties may be in dispute r about whether the obligation to transfer an RPT from a surplus position to another RPT position continues after the position is conv~rted to a full-time one, so as to require transfer from the newly created, newly surplus full-time position to any suitable RPT position which becomes available at any time before lay-off occurs. The parties may also be in dispute about whether the conversion has to be delayed until the lay-off from the part-time position would otherwise have occurred. We are not I asked to and do not have to resolve those disputes at this stage I The parties agree that the Surplus RPT's agreement did not and does not apply to an RPT who was laid off prior to December 4, 1992 They agree that it did and does apply to an RPI' who had not received notice of the termination of his/her position before December 4, 1992 They disagree about whether it did or does apply to someone who, like the grievor, received such a notice before December 4, 1992 but had not been laid-off prior to that date. That is the disagreement we have been asked to resolve at this point. - dounsel for the union argues that an agreement speaks as of the date of execution unless it expressly provides otherwise The Surplus RPT's agreement speaks about RPI"s. It does not distinguish between RPT's who have been given notice that they will be laid-off and those who have not. The grievor was an RPT when the agreement began speaking on December 4, 1992 Hence, the agreement spoke about and applied to him on and after that date. t-+~ (~-~. ~. - 3 - Employer counsel's argument focuses on the notice provisions of Article 24 ARTICLE 24 JOB SECURITY 24.1 Where a lay-off may occur by reasQn of shortage of work or funds or the abolition of a position or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or .other such work area and the subsequent assign- ment, displacement or lay-off shall be in accordance with seniority / subject to the conditions set out in this Article. NOTICE I 24.2.1 An employee shall receive six (6) months' notice of lay-off or pay in lieu thereof. 24.2.2 The notice period will begin when the employee receives official written notice. Copies of all such notices shall be provided to the Management Board Secretariat and to the Union. He argues that if the Surplu,s RPT's agreement applies to someone whose position is to be eliminated as of a date less than six months from the date that agreement became effective (as the employer had earlier decided the grievor's position would be), then the agreement retroactively puts the employer in breach of the notice require- ment of article 24 He cites Unwn Gnevance, 2507/86 (August 26, 1988, Samuels) in support of the proposition that article 24 is invoked as soon as there is a likelihood that a lay-off will occur He argues that agreements are not to be given retroactive effect except on the clearest language, citing Brown and Beatty, Canadian Labour / Arbitration (3rd ed.) at '4 1610, Re Central Potash Co. Ltd. and United Steelworkers, LocaZ7656 (1975), 10 L.A.C (2d) 29 (Norman) and Re Government of Northwest Territories and Union of Northern Workers (1989), 5 L.A.C (4th) 353 (Chertkow). 'Phe employer's retroactivity argument mischaracterizes the Surplus RPI"s l:).greement. That agreement does not make Article 24 directly applicable, either retroactively or at all, to circumstances in which a lay-off of a part-time employee becomes likely as a result of the elimination of a part-time position. Article 24 - continues to apply only to full-time positions. What the Surplus RPI"s agreement does is impose on the employer a new obligation to transfer the incumbent of the part-time --- --- ) ~i ~ ~, U - 4 - position being eliminated to another RTP position if it can and, if it cannot do that, a further obligation to convert the part-time position into a full-time one and declare that newly created full-time job surplus. Article 24 only comes into play if and when the obligation to convert and declare does. The obligation under that article to either give notice of lay-off (from the full-time position) or make payment in lieu of notice cannot have arisen any earlier than the date on w~ich the Surplus RPT's agreement came into effect. The provisions of the Surplus RPT's agreement were not imposed on the employer without warning by some third party The employer agreed on December 4, 1992, while the existing collective agreement was still in force, to assume new obligations with respect to its regular part-time employees. The grievor was then a regular part-time employee. On the plain language of the agreement, he was entitled to the benefit of its provisions. The fact that those provisions may have required that the employer do more for the grievor than it had planned to do before it agreed to those provisions is no reason to read into them sQme limitation which the parties did not expressly include. Accordingly, we find that the provisions of the agreement in question did apply to the grievor when they came into force on December 4,1' 9 2 '. We remain seised with all other issues in this grievance. Dated at Toronto this 1 sday of October, 1993 , ~~q~ V - - ~ Owen V Gray, r' Co em er Vice-Chair ------