HomeMy WebLinkAboutUnion 05-01-17.1 '
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE ART GALLERY OF ONTARIO
(the "Gallery")
- and —
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 535
(the "Union")
(Various Issues Concerning Impending Layoffs )
Before: William Kaplan,
Sole Arbitrator
Appearances
For the Employer: John Brooks
Heenan Blaikie
Barristers & Solicitors
For the Union: Don Martin
Grievance Officer
OPSEU
This case proceeded to a hearing in Toronto on January 11 & 13, 2005.
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Introduction
As part of the Transformation AGO Expansion Project, a large number of layoffs are anticipated
at the AGO. The parties jointly agreed to refer to me various issues of interpretation related to
the layoff and recall provisions of both the full- and part-time collective agreements in the
context of these impending layoffs The parties filed detailed written submissions about the
issues in dispute and about the proper interpretation of the collective agreements. Further
submissions were made at the hearing. Moreover, various authorities were put before me. Having
considered the arguments and written materials, I direct as follows:
The Interpretation Issues.
1. Notice to the Union under Article 18.02 of the full-time collective agreement and 7.02 of the
part-time collective agreement and notice to employees under Article 18.03 of the full-time
collective agreement and 7.04 of the part-time collective agreement can be given and can run
concurrently in whole or in part.
2. The posting in the workplace of a notice contemplated by section 5 of Regulation 288/01 of
the Employment Standards Act is and shall be deemed to be sufficient notice of layoff under the
full-time collective agreement to any individual employees who face displacement or are
displaced from their position and/or laid off as a result of the exercise of displacement rights by
other bargaining unit employees.
3. The job posting provisions of the full-time and part-time collective agreements with respect to
both full-time and part-time temporary and/or permanent positions prevail over the recall
provisions in both the full-time and part-time collective agreements. Employees on recall who
successfully post into temporary part-time or temporary full-time positions or who are otherwise
recalled for temporary work pursuant to the relevant recall provisions of the collective
agreements will not be entitled to new or fresh notice of layoff under either collective agreement
in connection with the end of their temporary work nor will their recall rights under Article
16.04(f) to (i) or Article 3.04(f) to (i) of the full-time or part-time collective agreements be
affected or adjusted.
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4. Article 18.05(f) of the full-time collective agreement provides that any employee who is
displaced as a result of the displacement process shall be covered by the provisions of Article 18
including that employee's rights, if any, to displace another employee with less seniority
pursuant to the provisions of Article 18.05. The Gallery has confirmed that no employee in the
full-time bargaining unit who is displaced and themselves has displacement rights under the
collective agreement will lose those rights by the mere passage of time.
5. Article 18.04 of the full-time collective agreement and Article 7.06 of the part-time collective
agreement provide that if employees choose to retain recall rights under the relevant collective
agreement that severance pay will be paid to the Director of Employment Standards and will be
paid out to employees when recall rights expire. Section 67(7) of the Employment Standards
Act, 2000 provides as follows:
67(7) If an employee, who is represented by a trade union elects
to retain the right to be recalled or fails to make an election,
(a) The employer and the trade union shall attempt to
negotiate an arrangement for holding the money in trust, and if the
negotiations are successful, the money shall be held in trust in
accordance with the arrangement agreed upon; and
(b) If the trade union advises the Director and the employer in
writing that efforts to negotiate such an arrangement have been
unsuccessful, the employer shall pay the termination pay and
severance pay to which the employee is entitled to the Director In
Trust.
The Union has indicated its willingness to attempt to negotiate an arrangement for holding the
money in trust which does not involve paying the money in trust to the Director of Employment
Standards.
Notice of Job Postings During the Transformation AGO Expansion Project
6. In addition to the job posting requirements set out in the collective agreements, the Gallery has
confirmed that throughout the period of the Transformation AGO Expansion Project the Gallery
will provide notice of job postings under the full-time and part-time collective agreements to
persons indefinitely laid off and on recall. For employees who provide an email address this
notice will be by way of email to them on or about the date the opportunity is posted in the
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workplace. Any other laid off employees can contact the Gallery's job posting hotline at (416-
979-6641).
Return to Employment Opportunity
7. In their submissions, both parties indicated a willingness to allow me to issue directions on an
issue that would otherwise be outside my jurisdiction. Thus, in connection with staffing up
directly related to the end of the Transformation AGO Expansion Project and the re -opening of
the transformed AGO, currently anticipated to be no earlier than 2008 (the "Re -Opening"), the
Gallery is prepared to make available Return To Employment Opportunities ("RTEO") to
employees in the full-time and part-time bargaining units who are indefinitely laid off as a result
of the Transformation AGO Project on the following terms and conditions:
(a) RTEO will only be available to persons whose recall rights expire under Articles 16.05(f)
to (i) of the full-time collective agreement or 3.04(f) to (i) of the part-time collective agreement
(e.g. RTEO will not be available to any person who elects to receive severance pay prior to the
expiry of their recall rights under the Articles referred to).
(b) The Gallery will notify persons eligible for RTEO of positions posted under the full-time
or part-time collective agreements directly related to Re -opening. For employees who provide an
email address this notice will be by way of email to them on or about the date the opportunity is
posted in the workplace. Any other employees can contact the Gallery's job posting hotline at
(416-979-6641). Email to the last known email address or identifying the opportunity on the
Gallery's job posting hotline will be considered sufficient notice for all purposes with respect to
RTEO.
(c) Persons eligible for RTEO will then be required to express an interest in writing by the
closing date of the job posting to the Director of Staff and Volunteer Resources of the Gallery in
being considered for RTEO, including identifying the position in which the person has an
interest.
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(d) The order of consideration for positions posted which are directly related to the Re-
opening will be as follows:
In Respect of Positions Under the Full -Time Collective Agreement
(i) Employees in the full-time bargaining unit (e.g. employees actively at work or
persons on recall whose recall rights have not been terminated).
(ii) Persons formerly in the full-time bargaining unit eligible for RTEO.
(iii) Employees in the part-time bargaining unit pursuant to Article 6.02 of the part-
time collective agreement.
(iv) Any person not covered by (i) to (iii) above such as an applicant "off the street".
In Respect of Positions Under the Part -Time Collective Agreement
(i) Employees in the part-time bargaining unit (e.g. employees actively at work or
persons on recall whose recall rights have not been terminated).
(ii) Persons formerly in the part-time bargaining unit eligible for RTEO.
(iii) Persons formerly in the full-time bargaining unit eligible for RTEO.
(iv) Any person not covered by (i) to (iii) above such as an applicant "off the street".
(e) The Gallery will give consideration to re -hiring persons eligible for RTEO in accordance
with the above. In the event a person eligible for RTEO is re -hired they will for all purposes
under a collective agreement be considered as a new hire save only that (i) they will be credited
with prior service for the purpose of vacation entitlement only and (ii) if they are rehired to the
same position they held at the time of layoff, the probationary period under Article 16.01 of the
full-time and Article 3.01 of the part-time collective agreements shall not apply to them. It is
understood and agreed that any decision not to re -hire a person eligible for RTEO does not and
shall not constitute an issue or difference between the parties arising from the interpretation,
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application, administration or alleged violation of either the full-time or part-time collective
agreements and the parties agree that an arbitrator does not have any jurisdiction to appoint any
person eligible for RTEO to a position.
(f) Any RTEO opportunities will be at an end upon the official Re -Opening of the
transformed AGO.
8. I remain seized of any issues concerning the interpretation, application, administration or
alleged violation of this Memorandum of Agreement and the provisions herein and/or future
issues related to layoffs or recalls related to the Transformation AGO Project.
DATED at Toronto this 17`h day of January 2005.
William Kaplan, Sole Arbitrator
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