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HomeMy WebLinkAbout1997-1196UNION98_05_19 ONTARIO EMPLOYES DE LA COURONNE ( CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) MSG 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 1196/97 OPSEU #97U123, 97U124 IN THE MATTER OF AN ARBITRATION Under ! THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Unton Gnevance) Grievor - and - The Crown to RIght of Ontano (Management Board Secretanat) Employer BEFORE K.M. Petryshen Vice-Chair FOR THE G Leeb UNION Gnevance Officer Ontano PublIc ServIce Employees Unton FOR THE M. Wilson EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING April 30, 1998 ~ May 1, 1998 May 6, 1998 DECISION The Employer has determined that it will outsource the work performed by bargaining unit employees at the Central Collection Services Branch of the Management Board Secretariat ( II CCS II ) To this end it issued a Request For Proposals ("RFpII) in September, 1997 The Union filed two Union grievances dated September 29, 1997, relating to this RFP One of these grievances alleges that the Employer failed to comply with its reasonable efforts obligations The Union applied to the Grievance Settlement Board (lithe Board ") for interim relief and in a decision dated October 29, 1997, the Board directed that the Employer not close the RFP until the merits of the grievance were heard See, Re OPSEU and Manaqement Board Secretariat, #1196/97 (Dissanayake) The Employer, however, did not seek a determination of the merits of the original RFP Instead, it significantly amended the RFP and claimed, at a hearing which concluded on May 6, 1998, that the amended RFP satisfies its reasonable efforts obligations under the collective agreement The Union disagreed The Employer has not issued the RPF The hearing of the second grievance, which concerns employee bidding, is scheduled to commence on May 20, 1998 In order to accommodate a request of the parties that they be provided with a decision on the reasonable efforts issue prior to the commencement of the hearing on employee bidding, my reasons I 2 for this decision are brief The issue for determination in this case is whether the Employer has complied with section l(a) of Appendix 9 of the collective agreement More specifically, the issue raised is whether the Employer has made "reasonable efforts to ensure that employees in the bargaining unit are offered positions with the new employer on terms and conditions that are as close as possible to the then existing terms and conditions of employment of the employees in the bargaining unit " The original RFP contained a Human Resources Factor ("HRF" ) which has been deleted in the amended version It is a mandatory requirement of the amended RFP that proponents must commit to make job offers to all CCS bargaining unit employees and that such job offers consist of at least 85% of the employees' current salary and recognition of service for purposes of vacation and benefits Job offers shall not include a probationary period The RFP provides that the Employer will award the work to the five highest ranked proponents Therefore, the amended RFP is structured so that all 14 CCS employees will < receive job offers from five proponents offering them at least 85% of their current salary and recognition of their OPS service for purposes of vacation and benefits Following the closing of the RFP, the RFP provides that the Ministry may enter into negotiations with the five proponents in order to fulfill its 3 reasonable efforts obligations As part of the negotiations, a financial incentive (Human Resources Incentive Fund), up to a maximum of $179,553 21, may be available to the five proponents to enhance salary and other terms and conditions of employment The amount of the Fund is equal to enhanced severance savings Having carefully considered the particular facts of this case and the submissions of the parties, I am of the view that the amended RFP does not satisfy the Employer's obligation ln Appendix 9 to make reasonable efforts The Union attacked the amended RFP on a number of grounds, however I found only one of its submissions to have merit Mr Leeb pointed out that by deleting the HRF contained in the original RFP, the Employer will not give some preference to bidders who are prepared to offer employees terms and conditions similar to those that currently exist The Union argued that reasonable efforts have not been made when the Employer does not attempt to encourage bidders to make job offers which match some or all of the terms and conditions which currently exist Appendix 9 obliges the Employer to make reasonable efforts to ensure that bargaining unit employees are offered jobs Since job offers are a mandatory requirment of this RFP, there is no doubt that the Employer has made reasonable efforts to secure jobs for the employees Appendix 9 also obliges the Employer to make reasonable efforts to ensure that the offers of 4 employment are on terms and conditions that are as close as possible to the existing terms and conditions of employment It is this latter obligation which is at issue in this case Once the five proponents are selected, the Employer plans to use the money in the Fund to negotiate enhanced terms and conditions of employment based on the wishes of the employees The Union suggests that the negotiations are more likely to be successful if the selection of the five proponents is based on giving some preference to bidders who are prepared to match or come close to matching some of the existing terms and conditions of employment It is my view that the absence in this amended RFP of some preference to bidders who are prepared to make job offers that contain terms and conditions of employment which are similar to those currently enjoyed by CCS employees demonstrates a failure to make reasonable efforts It is only reasonable, in these circumstances, for the Employer to give points to bidders who are prepared to pay OPS employees more than 85% of their salary, to give them 6 months notice if terminated, to offer them 11 or more paid holidays per year, to give them 1 1/4 days of paid vacation per month and to offer them the opportunity to work only on government accounts The amended RFP would not give any credit to a bidder who might be inclined to incorporate any of these terms in an offer to employees In these circumstances, such a bidder may not achieve preferred proponent status while another bidder may achieve that position without offering any of 5 these important terms An RFP which fails to differentiate between the quality of bids on relevant matters is not reasonable and does not constitute reasonable efforts as required by Appendix 9 of the collective agreement Accordingly, the Board declares that the Employer has not complied with its obligation to make reasonable efforts ln connection with the amended RPF The Employer is directed to amend the RPF in a manner consistent with the foregoing determination I retain jurisdiction to deal with any difficulties that the parties may experience in the implementation of this decision Dated at Toronto, this 19th day of May, 1998 1/ \~~ , ."'^- , K M Petryshen - Vice-Chair "