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HomeMy WebLinkAbout1995-1513UNION95_11_10 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-7388 180 RUE DUNDAS OUEST 8UREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMilE /TELEcOPIE (4161326-1396 GSB # 1513/95 OPSEU # 95U104 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Citizenship & Culture) Employer BEFORE W Kaplan Vice-Chairperson FOR THE C Walker GRIEVOR Job Security Officer ontario Public Service Employees Union FOR THE M Wilson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING October 28, 1995 --- 2 Introduction This case concerns an August 18, 1995 grievance filed by the union arising out of the closure of the Employment Equity Commission The case proceeded to a hearing in Toronto, at which time the parties introduced an agreed statement of fact. It is useful to reproduce that document In Its entirety 1 The Employment Equity Act ("Act") proclaimed in September 1994, has as its object the amelioration of conditions in employment for Aboriginal people, people with disabilities, members of racial minorities and women in all workplaces in Ontario and the provision of the opportunity for people in these groups to fulfil their potential in employment. To accomplish this the Act establishes: - a process for the development and implementation of an employment equity plan to remove workplace barriers, initiate positive and supportive measures and progress towards equality in the workplace for the above mentioned four beneficiary groups. . an Employment Equity Commission ("EEC") to administer and enforce the Act and an Employment Equity Tribunal to adjudicate disputes. 2 The EEC's legislated functions as set out in section 46( 1) of the Act are. - further the principles of Employment Equity - monitor implementation of employment equity and the effectiveness of the Act - conduct research and develop policy in relation to employment equity - assist employers, employees and bargaining agents in complying with the Act - educate the public about employment equity 3 The Ontario Public Service as an employer has always had and continues to have obligations under the Human Rights Code and these obligations which include: - investigation of discrimination and harassment complaints - individual accommodation support for persons with disabilities - identification and removal of systemic barriers in the workplace have been carried out by the government in the past and will continue to be performed by the government in the future. 4 The EEC, a schedule 1 agency of the Ministry of Citizenship, Culture and Recreation was comprised of' . The Commissioner who is appointed by Order-in-Council - Legal Services - Communications Unit - An Executive Director 3 5 The Executive Director had three sections reporting to him which are as follows: - Client Services - Compliance* - Corporate Affairs *The Compliance section of the EEC was not staffed at the time of the layoffs due to the fact that the time table set out in the Employment Equity Act for the preparation of employment equity plans had not become due. 6 On July 19, 1995 the Premier announced that the government will introduce legislation to repeal the Employment Equity Act. 7 On July 21, 1 995 the Minister of Finance announced a $1 9 billion spending cut. 8 The Minister announced that due to the fiscal situation the government had decided to cut funding to a number of government programmes and projects. The EEC was one such programme and funding was cut back for the EEC and for the implementation of the Employment Equity Act in the civil service 9 On the same date, the Minister of Finance also announced that funding for the EEC will be cut back pending the repeal of the Employment Equity Act and that planned additional funding to implement employment equity legislation within the Ontario Public Service would be eliminated. These measures were to save $8 million this year 10 Specifically, the EEC was cut back by $6 million and the Employment Equity fund at Management Board Secretariat was cut back by $2 million. 11 On July 25, 1995 the 24 OPSEU bargaining staff at the Commission were given six months notice under Article 24 1 of the Collective Agreement due to the government's announced decision to repeal the Employment Equity Act and the corresponding withdrawal of funding support to the EEC. 12 All non OPSEU staff have also been provided With notice In accordance with their entitlements. By the end of January 1996 all staff at the EEC would have been released. 13 On October 11, 1995 the Minister of Citizenship, Culture and Recreation tabled legislation referred to as "An Act to repeal job Quota's and to restore merit-based employment practices in Ontario" This legislation repealed the Employment Equity Act. 14 This Act also repeals provisions of the Education Act, the Human Rights Code and the Police Services Act which relate to employment equity thereby rendering any activities in connection with the functions of employment equity illegal 15 This Act also decrees as follows: - All orders and policy directives from the EEC and Employment Equity - 4 Tribunal are of no force or effect - All agreements entered into under section 26(2) of the Employment Equity Act are of no force or effect - All proceedings before the EEC and the Tribunal are discontinued - Information collected exclusively for the purposes of the Employment Equity Act is to be destroyed 19 In a document released on October 11, 1995 the government stated that the Equal Opportunity plan will not be legislated and will have three mam components which are: - support for education and training on equal opportunity - support for removal and prevention of barriers - support for partnerships 20 An Equal Opportunity plan will not have the four beneficiary groups mentioned in the Employment Equity Act and will be for the benefit of all Ontarians. 21 An Equal Opportunity plan will be a merit based system. 22. An Equal Opportunity plan has not been developed nor approved and no organizational structure to implement it is contemplated. 24 The Employment Equity Commission is located in leased space on the 10th floor at 77 Bloor St. West. In addition to this agreed statement of fact, a large number of documents were introduced on consent. This dispute rn this case can be SImply stated As a result of the events outlined above, 24 members of the bargarning unit were declared surplus on July 25, 1995 Twenty-three of these employees filed indiVidual grievances, and a union grievance was also filed The parties have agreed to hold the indiVidual grievances in abeyance pending the determrnatlon of the union grievance The employees were declared surplus pursuant to Article 24 1 of the Collective Agreement. The union does not take Issue With that. What the union does take issue With, and underlyrng the union grievance, was the failure of the employer to abide by Article 26 That proVISion reads as follows - 5 26 1 Where a reorganization, or the closure of a facility, or the divestment, relocation or contracting out of an operation in whole or in part will result in twenty (20) or more surplus employees in a location, (a) affected employees shall receive as much notice as possible, but in any case shall be notified of the imminent reorganization, closure, relocation or contracting-out not later than nine (9) months in advance of the proposed reorganization, closure, divestment, relocation or contracting-out, and (b) the President of the Union shall be notified of the reorganization, closure, divestment, relocation or contracting-out at least sixty (60) days prior to notification to affected employees, and ( c) a committee shall be formed by the parties at the affected location to provide for consultation and cooperation in order to minimize the adverse effects upon employees who have been identified as surplus to requirements. 26.2 The Union may be represented on the committee by a Union staff representative and up to three (3) employees at the location involved and the ministry agrees to grant leave with no loss of pay and with no loss of credits to attend committee meetings. 26 3 With mutual agreement, the Union and the Employer (as represented by Management Board of Cabinet) shall meet to discuss system-wide matters concerning closures, divestments, relocations or contracting-out. Union Submissions There were two prerequIsites, In the union's submission, for Article 26 to apply First, more than twenty employees must be affected Mr Walker noted that the partIes were agreed that more than twenty employees were affected in this case Second, a facility must be reorganized or closed, the union conceding that this case did not involve relocation or contracting out. In the union's view, both requirements of the provISion had been met, and that being the case, the union and the employees had been wrongfully depnved of the benefits of the provision There was very little doubt, in the union's view, but that the EEC was a facIlity and that It was being either closed or, In the alternative, being reorganized as some of its functions were, In the agreed-upon evidence, arguably being referred to the Human Rights Commission, or would be - 6 t , shortly After reviewing the use of vanous terms In the Collective Agreement, Mr Walker observed that the term "facility" appears only In Article 26, and he took the position that it should be given a broad and purposive meaning Such an interpretation, in the union's submission, was supported by the redeployment rights of employees of Schedule 1 agencies considered generally, not to mention by the actual organization of the EEC which established that It was a self-contained operation with a specific and wide-ranging statutory mandate, not to mention its own complement of administrative personnel Mr Walker noted that Article 26 had been negotiated for a reason, and that reason, obviously, was to involve the trade union in far-reaching decisions affecting the employment security of large numbers of employees This very Involvement, through the notification requirements and committee work contemplated in the provision, could result in the development of proactive steps aimed at ameliorating the impact of a closure or reorganization decision Moreover, these steps, given the nature of the surplus process, had the potential of affecting other employees as actions taken with respect to employees surplused as a result of a closure or reorganization could, and likely would, affect the status of other surplused public servants This was yet another reason to ensure that employees and the union obtained the benefits provided for in Article 26, benefits In terms of notice, Mr Walker pointed out, which were much better than those provided by Article 24 MOVing precipitously, and denYing employees the benefits of Article 26 could also, in the union's View, result in unfair and unintended consequences given the way in which government policy is developed and Implemented By 7 way of illustration, Mr Walker noted that at the same time that the EEC was abolished and the bargaining unit members declared surplus, the employer was reaffirming Its commitment to some of the goals previously found within the EEC's statutory mandate In the union's view, there was some prospect of the job functions of at least some of the grievors, and perhaps even some of their specific jobs, being performed elsewhere within the public service, and If this turned out to be the case that would arguably obviate the need to surplus the positions of all the former EEC employees The fact of the matter is that Article 26, In the union's submission, was Intended to provide a mechanism for issues of this kind to be addressed, and Mr Walker, referring to Whiteside/Stewart 330/92 (Kaplan), argued that It IS absolutely essential, in cases of this kind, to ensure that the provisions of Article 26, which provide for a significant degree of union representation in circumstances of this kind, are given effect. In conclusion, the union asked me to issue a declaration that Article 26 had been breached, and to remain seized Employer Submissions Employer counsel began her submissions by noting that the government decided to repeal the Employment Equity Act As a result of that decision, there was no legislative mandate for the continuation of the EEC's goals, and no funds to support the achievement of its objectives. Accordingly, there was no need for the bargaining unit positions at issue In this case and they were, therefore, abolished This abolition fell squarely, in counsel's View, within Article 24 1 which referred, among other things, to the "abolition of a position" or layoffs resulting from a shortage of work or funds That is all that had taken place in this case and that being so, the employer argued, there had been no Article 26 breach - 8 i In the employer's view, Article 26 applied in cases of mass layoff resulting from the closure of a facility, and in counsel's submission, the term "facility" must be given a very narrow reading Counsel pointed out that It is used in a restrictive away in the Crown Employees Collective Bargaining Act, (although she conceded that its use there must be read In proper context, namely with respect to a decision by the Grievance Settlement Board to reinstate an employee following a finding that he or she has applied force to a resident in a "facility" or has sexually molested a resident in a "facility," a term which is then specifically defined) Attnbuting a restrictive meaning to the term also found support In at least one dictionary definition of the term which counsel provided Indeed, counsel argued that the term must be read as meaning a building with bricks and a geographical address, and only when such a building with a particular function was closed down would, the employer argued, the applicable part of Article 26 come Into effect There were also, counsel observed, some other statutes that used the word "facIlity", one way or another, and counsel argued that these different uses bolstered her claim that the term should be restrictively interpreted In fact, counsel argued that It was doubtful whether the closure of an entire Ministry would constitute the closure of a "facIlity" for the purposes of applYing Article 26 If Article 26 was Intended to cover every type of closure, counsel argued, it would have said so Significantly, it did not. While there was one GSB decision that was arguably related to the issue raised in the Instant case, that decision, Union Grievance 231 1/94 (Finley) should, counsel argued be distinguished as the comments therein were obiter and must, therefore, be accorded little weight. 9 Counsel also made some submissions with respect to the union's alternative argument, namely that some of the functions of the EEC had been reorganized and that this provided another basis for Article 26 bemg mvoked There was, in the employer's view, absolutely no evidence supporting any assertion that a reorganization had taken place What eVidence there was, counsel argued, Indicated that the government had decided to get out of the employment equity business The complete withdrawal from this field of activity could be seen, counsel suggested, by the terms of the abolition legislation requiring the destruction of records created for employment equity purposes While there were references to an Equal Opportunity Plan, no funds had been allocated to that plan, and no action had been taken with respect to it. The fact of the matter was that there had been no "reorganization" of the work, and no such reorganization was mtended in the foreseeable future Accordingly, and for the foregoing reasons, counsel, while reiterating the government's commitment to the enforcement of human rights, asked that the union grievance be dismissed Union Reply In reply, Mr Walker observed that to uphold the employer's limited definition of the term "facility" would be to effectively gut Article 26 by limiting Its application to those occasions when a building, used for a specific governmental purpose was closed down and the purpose or function eliminated That, he argued, was surely not the intention of the parties, nor was it a construction that Article 26 could bear He again asked me to issue a declaration that Article 26 had been breached, and to remain seized with respect to the implementation of my award 10 Decision Having carefully considered the eVidence and arguments of the parties, I have come to the conclusion that the facts agreed to by the parties, and outlined In this award, constitute the closure of a facility and I therefore find that the union was wrongfully depnved of the benefits of Article 26 It IS clear that the term "facility" cannot be given the narrow interpretation suggested by employer counsel Such an interpretation would render Article 26 meaningless The use of the term "facility" in the Crown Employees Collective Bargaining Act is extremely specific and limited by the context of the provision in which that particular definition appears While employer counsel provided some dictionary definitions of the term, they are are of limited assistance The Black's Law Dictionary definition, for example, arguably incorporating bricks and mortar as an Integral ingredient of the term, but referencing some old Amencan case in support, is far from persuasive In contrast, the Webster's definition, namely "a place or office equipped to fulfill a special functIon, a government facility" comes closer to describing the EEC There IS little doubt but that the EEC was a government "facIlity" and it was one designed to fulfill certain government functions To reqUire that a "facility" be a specific building that must be closed down and the function terminated would be to ignore the fact that specific government functions are carried out in a variety of ways and that a decision to terminate a certain function, or as In thiS case, a facility, will not necessarily, and only perhaps exceptionally, Involve the actual closure of a building The fact that the EEC was located in leased premises, as opposed to occupying a particular building, hardly makes it any less a facility for the purposes of 1 1 applying Article 26 In this case, very simply, the decision was made to close a specific and Identifiable operation of government - one with its own statute, mandate, organizational structure, leased premises with a specific geographic address, lengthy listing in the government directory, albeit under the Ministry umbrella but with its individuality recognized through an Introductory descnptlon of Its responsibilities and activities, and status as a Schedule 1 agency It was known to be fulfilling important and discrete actIvities on behalf of government and was treated as such It was, applying simple common sense, a facility, and it was closed down, As a result, Article 26 should, given the number of employees involved, been applied While the observations in Union Grievance 231 1/94 (Finley) are perhaps obiter, they nevertheless support the result reached in this case as does the consideration, more generally, of the characteristics of Schedule 1 agencies While the union made some alternative arguments that Article 26 should be applied because a reorganization had taken place, It is not necessary, haVing found for the union on its primary submission, to make any findings In this respect. It may, however, be useful to observe that the evidence is far from clear that any of the functions formerly carried on by the EEC, while referred to in the different exhibits, will continue, at least in the near future, to be carried on by some other body in anything remotely resembling the duties and planned activities of the EEC Finally, It IS worth noting that the language of Article 26 IS clear, and given that language the provision should be given a purposive reading The 12 purpose of the provision is to the involve the trade union when large numbers (over twenty) of employees of a particular facility will be affected by a number of events including its closure In the instant case, such a group of employees was affected by the decIsion of the government, to quote employer counsel, to get out of the employment equity business It was within the government's power to make that decision However, It is obligated, when making decisions of this kind, to abide by the provisions of Article 26 This provision requires the involvement of the trade union, and the purpose of that provision is, among other things, to provide the union with an opportunity to ameliorate the impact of the reorganization or closure of a facility, or the divestment, relocation or contracting out of an operation, and to do so dUring the prescribed notice penods set out In the provision The parties have chosen, in their collective agreement, to create a process that involves the trade union when certain government decIsions are taken That process was not followed in thiS case, and I so declare Accordingly, and for the foregoing reasons, I am issuing a declaration that Article 26 was breached The effective date of that breach was July 25, , 995, the date on which the individual grievors were notified that their positions were being abolished However, and at the request of the parties, I remain seized with respect to the implementation of any remedy arising from the breach should the parties prove unable to agree DATED at Toronto this' Oth day of November' 995 ;/;// !~ , ---------------- William Kaplan Vice-Cha irpe rson