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HomeMy WebLinkAbout1997-1859UNION98_08_04 . , ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (415) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 32/5-1396 GSB #1859/97 OPSEU #97U149 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRlliVANCE SETTLEMENT BOARD BETWEEN OPSEU (Uruon GrIevance) Grievor - and - The Crown m Right of Ontano (Mirustry of Commuruty and SOCIal ServIces) Employer BEFORE Richard M. Brown Vice-Chair FOR THE G Leeb UNION GrIevance Officer - Ontano Public ServIce Employees Uruon FOR THE D Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING June 11, 12,23 and 25, 1998 July 2, 3 and 7, 1998 - Tl11s IS a polIcy gnevance allegmg the Mmlstry of Commumty and SocIal SefVlces has not fulfilled ItS reasonable efforts" obhgatlOl1s under AppendIx 9 of the collectlve agreement The grIevance IS prompted by the nnpendmg transfer of sole-support parent and foster care files from the Mmlstry to mUlllclpal delIvery agents pursuant to the Socwl As 'lis/once Reform Act, 1997 This decIsion relates exclusIvely to till. MUllor;llldlllll or Understandmg on Human Resources Transltlon Planmng, dated JUlle 26, 1998, between the Kmgston Area Office of the Mmlstry and the County of Hastmgs I The files to be transferred to Hastmgs County are now adl11l11lstered by Mmlstry staff at Its office m BelleVIlle WhICh falls under the junSdlctlOn of the Kmgston Area Office In her capacity as TransltlOn Manager for the Kmgston area, Mane RIchardson served as the Mlmstry s chief negotlator mlts dealmgs wIth Hastmgs County Ms Richardson testlfied approxunately twelve employees Will be displaced from the BelleVIlle office as a result of the transfer of about seventeen hUlldred lllv... to till. ( (Hlllly or H;lstlllgS The County also WIll receIve a very small number of files now admmlstered by the Mmlstry's Peterborough Area Office As a result of the transfer of files from these two sources, Hastmgs County plans to create an addItional thIrty-five jobs m Its SOCial ServIces Department The reason more jobs Will be created at the County than Will be lost at the MI11lStry IS the transfer of files wIll comclde WIth a change m the way welfare cases are adml11lstered and a correspondmg decrease m the number of files aSSigned to each employee Accordmg to Ms RIchardson, each County employee IS expected to handle 2 115 files under the new Ontano Works program, whereas each Mmlstry employee has 350 files under the old FamIly Benefits program The Hastmgs agreement deals wIth both the hmng of Mll1lstry employees by the County and the tenns and condItIons of employment under WhICh they wIll work once hIred On both fronts, the af,JTeement reflects the presence of Local 1665 of the CanadIan Ul1lon of Pubhc Employees (CUPE) as bargammg agent for employees of the County holdlllg the pOSitIOns to whIch the files will bc asslgllcd ,Ilkr thc tr,lll\lCr 111\01:11' ,1\ UlllOlllzcd Jobs are concerned, vacanCIes wIll first be posted III accordance with the County's collective agreement wIth CUPE Local 1665, gIvmg members of that bargammg Ul1lt first claim on Jobs whIch they are quahfied to perfonn Openll1gs not filled by eXIstmg CUPE members are to be posted at the MmIstry's Kmgston and Peterborough offices before bemg offered to non- ul1lol1lzed employees of the County Insofar as non-unIonIzed Jobs are concerned, vacanCIes wIll be posted simultaneously for employees of the County and MmIstry staff For all Jobs, external candIdates--I e those not employed by the County or the Mll1lstry--wIll not be conSidered unless there IS no qualified applicant from the County or MlIllc;try Employees who apply for a posted .lob 11111\( pdrt IClp<lte III a selection process The followll1g prOVISIOns relatmg to thiS process are contall1ed m the agreement SelectIOn WIll be based on the County's selectIOn process whIch mcludes mtervIews and reference check( s) Job offers to MmIstry staff wIll first be made to qualIfied staff of the Kmgston Area Office and then to quahfied staff of the Peterborough 3 , Area Office Where MmIstry starr arc cOIl"I<.krul by the COllnty to be relatIvely equal, the Job offer WIll be made on the basIs of OPS [I e Ontano PublIc ServIce] semonty m accordance wIth the afore- mentIOned sequence EqUIvalencIes for credentIals WIll be accepted for postmgs under thIs agreement Ontano PublIc ServIce employees' related Job specIfic expenence wIll be accepted as the reqmred eqUlvalency for County Jobs where specIfic credentIals are IdentIfied For example, an IMO wIth a mU111num of one year's casework expenence wIll be consIdered as possessmg the required credCl1tl,ll'.. I'm thL C ;l"Lworker II posItIon on the condItIon the)' undertak.e to SLlCCL~sllllly LOlllplLte the reqLl1red credentIals wlthm three (3) years of acceptmg employment wIth the County Travel expenses to attend mtervlews wIth the County wIll be the responsibIlIty of the MmIstry and WIll be m accordance wIth the current kllometnc rate The selectIon panel wIll be compnsed of the County SocIal ServIce DIrector, DIrector of Human Resources, or desIgnates and for those competItIons where there arc OP~ ;lppIILdllh, ;1 M 1l1I'..try SocIal AssIstance Manager or HR manager ThL Mllllstry Manager partlclpatmg on the selectIOn panel wIll act as a resource rather than as a full selectIOn panel member wIth ratmg and rankmg responsibIlItIes 4- . Other provIsIons of the Hastmgs agreement address the tenns and conditions of employment for MmIstry staff who are hIred by the County- Successful OPS applIcants WIll be placed on the County's salary grId based on recOf:,'lll(lon ofye<lrs of "crvlcc 111 ,111 Ullllvdlcn( OPS positIOn Examples of salary treatment on appol11tment Income Mamtenance Officer, OPS WIth two year's expenence selected for Caseworker II pOSition wIll be placed at the 24 month level of the County's salary f:,'Tld Income Mamtenance Clencal staff at the OAG 7 or 8 level WIth two years expenence selected for a Clerk IV pOSItIon wIll be placed at the 24 month level of the COllnty s salary gnd Service of OPS employees WIll be recoglllzed III estabhshl11g entitlements of eamed and msured benefits for both ul11ol11zed and non- ul11ol11zed employees of the County The County agrees to Waive the reqUIred waJtmg penods to proVIde benefit entItlements to the County pOSitIOn Sel110nty IS defined m Article lO of the collective agreement of CUPE, Local 1665 Locally the parties have been unable to obtal11 recogl11tlOn of OPS staff S selllonty as defined 111 ^rt IC]C 18 of the OPSEU Collective Agreement, Appendl\. [) \hollld rccoglll(lon of selllonty 5 fonn part of any central agreements between the provmclal or federal govenunents, CUPE, Local1665 and OPSEU, such agreement wIll fonn part of thIs agreement The only financIal mcentlve relates to the cost of onentatIOn and trammg The agreement states In recog1l1tlon of the onent<ltlon :lnd tr;llnlllg co"t" rcl:lted to thIs agreement, the M1111stry agrees to provl<.1c the Lounty wIth prov111clal fundmg for each employee to complete reqll1red tra111111g as outlmed m the budget No eVIdence was adduced as to the amount to be paId by the Mmlstry The Hastmgs agreement allows MInIstry employees a penod of three years, after bemg hIred by the County, to obtam the educatIonal credentlals nonnally reqmred for a Job Before the agreement was concluded, the Kmgston Area Office made arrangements WIth LoyalIst College m BellevIlle for employees to complete ItS SOCIal ServIce Worker Prof,rram Employees tak111g advantage of thIs opportunity P;lY their own tUltlOI1 but the Mmlstry pays them for one-half of the tIme they spend III e"I\~ Ms RIchardson testIfied the recognItIon of OPS servIce by the Hastmgs agreement would place Mmlstry employees lured by the County at the top of ItS 24-month salary grId Clencal employees lured by the County would receIve approxImately 85% of theIr eammgs WIth the M111IStry Income mamtenance officers lured to work m the Caseworker II claSSIficatIOn would be paId 79 6% of theIr fonner hourly eammgs They would eam 76% of theIr fonner weekly eammgs, as they would work 1 25 hours per week less As the 6 pOSItion of parental support worker IS undergolllg (1 c1as~illcatIon review at the County, a meanmgful companson of earnlllgs for thIS posItIOn IS not possible To mItigate the reductIOn III earnlllgs, the MlllIStry offered a "one-tune" grant which would enable Hastlllgs to "top-up" the earnmgs of fonner MlllIStry employees for a lImIted tune The amount offered was $378,500, but Ms RIchardson testIfied It turned out to be SIX tllnes higher than It should have been The MlllIStry'S offer was declllled Accordll1g to Ms RIchardson, the County was not ll1terested III "one-tnne" money and was not ll1clll1ed to pay fonner Mmlstry employees more than others dOIllg the same Job There was no dIScussion of the MlIllstry providIng ollgolng funding to the County III order to enhance earnll1gs The County dId IndIcate It had no objectIon to the Mll1IStry Itself tOppll1g up the earnlllgs of ItS fonner employees No eVIdence was led as to the detaIls of benefits or penSions, but employer counsel dId not contest the umon s assertion that the benefit plans and pensIOn avaIlable to County employees fall short of those avaIlable to employees of the MllllStry Accordlllg to the umon, for example, the MlllIStry has a relatively generous dental plan whereas the County has none In negotiatIOns, the MlllIStry lllltIally proposed that semonty lIsts be dove-taIled so that ItS employees would receive full credit for OPS semonty LikeWIse, a plea for semonty recogl11tlon wac; made by Kevm Con stante, AssIstant Deputy MIllIster for Program M;lll;lgCIlIUlt, 011 JUlle 13, 1998 at a Toronto meetlllg of CUPE representatives from across the provlllce Semonty recogmtlOn was dIscussed at meetlllgs of MllllStry and County offiCIals Jun Duffin, DIrector of Human Resources for the County, raised thIS matter wIth 7 CUPE representatIves on May 13 and June 4 and then reported to the MmIstry that their posItIOn was "semonty was not open for discussion" The MImstry had no dIrect dealIngs wIth CUrE representatIves at Hastlllgs County Ms RIchardson tcstIlILd the C oUl1ty W,IS told the II1Centlve fundmg on offer was avaIlable for use as It saw fit Accordlllg to her, the County was free to offer some or all of thIS money to CUPE 1665 m exchange for recogmtIOn of OPS senIOnty There was some dIscussIOn between M111lstry and Connty officials about offenng to pay CUPE umon dues for a penod eqUlvalent to the amount of semonty be111g sought Ms Richardson testified tIns matter was dropped because of concems such an arrangement would constItute an unfaIr labour practIce Malcolm Smeaton, Co-ordmator of Broader PublIc Sector Labour RelatIons with Management <- Board Secretanat, was asked 111 cross-examlllatlon about his VIew of a bargamll1g agent b"Tantll1g selllonty for ')crVILC out,)ldc thc bargcllnll1g unIt 111 exchange for benefits offered to eXlstll1g b,lrg,1I11111g Ul1lt mcmbers Faced wIth the assertIon that the legalIty of such an arrangement depends on how they do It," Mr Smeaton agreed The Hastlllgs agreement allows for the recog111tIOn of OPS semonty If OPSEU and CUPE reach an accord on thIS matter Ms RIchardson testIfied she was mfonned 111 May by a representatIve of the County that CUPE and OPSEU representatives were scheduled to meet 111 Toronto 111 June to address semonty and other Issues She conceded no effort was made to venfy tl11s mfonnatlon The employer now concedes no such meetmg ever occurred The County succeeded III negotIatIng some arrangements wIth CUPE ; Local] 665 for the benefit of Mlnl')try L111ployLL,) who Illlght be hIred by It The CUPE collectIve ab'Teement was open for rLllcw,ll ,It the same tllne as the 8 County was negotlatmg wIth the Mmlstry In a letter of understandmg between Hastmgs and CUPE Local 1665, dated June 25, 1998, the partIes agreed, among other thmgs, to 1 Grant full recogmtIOn of OPS sefVIce for the purpose of vacatIOn and benefits, 2 Replace the sl'\-month prob;l! 1011;11)1 period Wit h ;1 three-month tnal penod m the case of OPS employees 3 Recogmze recent and related OPS servIce for the purpose of placement on the salary gnd, and 4 Allow OPS employees WIth expenence m a related pOSItIOn three years to obtam reqUIred educatIonal credentIals ThIS letter of understandmg provIded the basIs for several of the tenns found m the agreement between Hastmgs County and the Mlmstry II The grIevance alleges a VIOlatIOn of paragraph I (a) of Appendix 9 The Employer WIll make reasonable efforts to ensure that, where there IS a dISpOSItIOn or any other transfer ofbargammg umt functIOns or Jobs to the pnvate or broader publIc sectors, employees m the bargammg umt are offered pOSItIons WIth the new employer on tenns and condItIOns that are as close as possIble to the then eXIstmg tenns and condltlons of employment of the employees m the bargammg umt, and, <) , where less than the full complement of employees IS offered pOSItIOns, to ensure that offers are made on the baSIS of se11l0nty When an employee has been transferred to a new employer he or she wIll be deemed to have resIgned and no other proVIsions of the CollectIve Agreement wIll apply except for artIcle 53 or 78 (TermmatIOn Pay) Dunng the course of argument, reference was made to paragraph 1 (b) as an aId to mterpretatIOn Paragraph 1 (b) states Where the salary of the Job offered by the new employer IS less than eighty-five percent (85%) of the cmployee'" current salary, or If the employee's serVIce or semont) Me 110t eMned over to the new employer, the employee may declme the offer In such a case, the employee may exerCIse the nghts prescnbed by ArtIcle 20 (Employment StabIlIty) and/or paragraphs 2 to 5 of thIS Appendix The employee must elect whether or not to accept employment WIth the new employer wIthm three (3) days of receIvmg an offer In default of electIon, the employee shall be deemed to have accepted the offer The employer's obligatIOn under paragraph 1 (a) has two branches Reasonable efforts must be made to find Jobs for displaced employees and, where there are not enough Jobs for ~lll, to 1.I1\Ure hIrIng Ie; done on the baSIS of semonty Reasonable efforts also lllllst be 111.ldc to obtain tenns and condItIOns of employment as close as possible to those prevIOusly enjoyed The general nature of thIS oblIgatIOn was described by Mr Kaplan m Mmlstry of Transport and OPSEU, GSB #1344/97, dated June 9, 1997 He emphaSIzed the SIgnificance of the employer's undertakmg" 10 . ThIs oblIgatlon IS an extremely Important one, and It IS one that cannot be taken lIghtly (page 29) Mr Kaplan went on to note the undertakll1g ,'-' 110t without IlImt [R]easonable efforts does not mean' all efforts" It does not mean "efforts to the pomt of undue hardshIp" It does not mean' every effort." What It means IS efforts that are reasonable m the CIrCUlllstances all thmgs consIdered (page 30) As one of the specIfic efforts reqUIred, Mr Kaplan dIrected the employer 'to make full use of savmgs on enhanced severance costs m find111g pnvate sector Jobs for publIc servants' (page 34) ThIS decIsion was upheld by the DIvIsIOnal Court III a decIsIon dated December 1, 1997 In MInistry ql( 0ll11l1W7/ty 0/7(/ \()( /{/I \( n'/( C\ ond ()J>\'J l! GSB #2779/96 & 141/97, dated June 2,1997, Mr Kaplalllllore fully addressed the use of a financIallllcentlve as part of makmg reasonable efforts The stmcture of AppendiX 9 111dIcates, and thIS purpose does not appear to be fundamentally 111 dIspute between the parties, that It was developed to create a financIal 111centlve for the employer to place publIc servants 111 Jobs that met certam tenns WIth aVOIdance of enl1anced costs, and possibly more, the benefit to the particular m111Istnes At a mlllunum--and, ObVIOusly each case wIll dIffer-- amounts up to the aVOIded costs should be used as an 111centIve to secure Jobs for publIc servants, m<lY of whom, AppendIX 9 beg111s, "served for a lengthy penod ' (p.lgc 20) 11 , t Mr Kaplan also stated what IS reasonable In one settIng may dIffer from what IS reasonable In another. ObvIOusly, each case WIll dIffer and In each case the employer will have to carefully consIder what It IS about that case whIch IS dIstmctIve and whIch therefore calls for a new or dIfferent approach The fact IS that the pnvatIzatIon program wll] be c~rned out III dIfferent mInlstnes In dIfferent ways and the words' r<...:l-;OIl.1blc elTort~ must be mterpreted m a way that makes sense (page] 8) One of the umon's compla111ts about the HastIngs af:,rreement IS that It provIdes less protectIon to employees than has been achIeved 111 recent cases where a m111Istry has tendered work by ISSUlllg a request for proposals (RFP) For example, 111 MInistry of Natural Resources and OPSEU GSB #0252/98, dated June 18, 1998, the RFP reqUIred those submIttlllg a bid to make Job offers to all affected employees, to offer them at least 85% of theIr prevIOus salary and to recogmze theIr servIce for the purpose of vacatIons and benefits In additIOn, the use of a probatIOnary pCrlod W.1\ prohIbited Other provIsIons 111 the RFP encouraged those submlttlllg lml\ to c\eccd these mandatory reqUIrements The umon contends employees affected by the negotIated transfer WIth the County of Hastmgs are entlt]ed to tenns and condItions of employment eqUIvalent to those of employees subject to an RFP ThIS argument IS not supported by the general structure of AppendIx 9 It does not guarantee that all dIsplaced employees WIll fare equally well By requmng Job offers to be made on the basIs of se1110nty when there are not enough Jobs for all dIsplaced employees, paragraph 1 (a) acknowledges '. some WIll get Jobs and some WIll not By allow111g employees to refuse a Job 12 . and to collect enhanced severance when the salary on offer falls below 85% of prevIOus earn1l1gs, or when servIce and semonty are not recogmzed, paragraph 1 (b) acknowledges that such shortfalls wIll occur for some employees WhIle oblIgmg the employer to use reasonable efforts to obtam a Job for all, wIth the smallest possible reductIOn 111 wages and benefits, AppendIx 9 does not guarantee equally favourable results wIll be achIeved for all employees Just as what efforts are reasonable WIll vary from case to case, what reasonable eff0l1s are able to accompl1sh will vary dependmg upon the CIrcumstances The latter pOlllt W(lS ll1.Jdc by Mr Roberts III A11111\/rv (?! Consumer and Commercial Relalwn\ G~n 11055<);<)7, decIsIon dated May 26, 1998 At the outset of my consIderatIOn of the Issue of scope, I recogmze that 111 the CIrcumstances of thIS case the employer had httle m the way of barga1l1mg power AGCO [Alcohol and Gammg COITIlTIlsslOn of Ontano] was a monopoly It was not a bIdder m a competltlOn WIth others to take over the lIcensmg and regulatory functIons of the Gammg Control CommIssIOn It had an exclusIve statutory mandate to take over these functlOns Part of the AGCO' s statutory mandate was to set ItS own tenns and condltlOns of employment WIthout any consIderation or "reLtsoll(lble cl Tor 1 " wllll,h It did before Ilegotlatlons WIth the employer even commenced III short, from the start the deck was stacked III favour of AGCO (page 14) As Mr Roberts suggested, reasonable efforts are likely to produce better results where several entltles compete for work m response to an RFP 13 than where the law reqmres work to be transferred to a partIcular entIty In a competItIve settmg, the employer can refuse to deal wIth those not wIllmg to meet mml1num reqll1rements, at IC<1"t '\0 IOl1g ;1'\ olher'\ arc wll1111g to do so In thIS way, the employer can take advantage of competItion among bidders to Improve the lot of employees ThIS strategy IS not possible when there are no competItors The transfer of certam files from the Mll1lstry to the County of Hastmgs IS reqmred by a regulatIOn made under s 37(1) of the SoclOl A,~,\ Istance Reform Act, 1997 The umon expressly refra111ed from contendmg the collectIve agreement reqUIres the govemment to use ItS law mal-..mg powers to regulate the tenns and condItIons of employment at the County of Hastll1gs Other than regulatory Il1struments, persuasIon and financlalll1centJves are the only mechamsms avaIlable to the M1111"try It C<1111l0t rcfuse to transfer files to the County unless ItS demands are met III The first branch of the employer's oblIgatIon IS to make reasonable efforts to find Jobs for dIsplaced employees and, where there are not enough Jobs for all, to ensure hmng IS done on the basIs of semonty The ul1lon contends thIS oblIgatIOn IS breached by the provIsIon of the Hastmgs agreement statll1g the selectIOn of employees wIll be based on 111tervlews and reference checks The Import of thIs provIsIon 1" b<...\1 ,I\~c\\cd In thc context of the rest of the agreement Another provIsIon say\ <...\IUIl,d hlrll1g will occur only If there IS not a "qualIfied" applIcant from the County or Mll1lstry Tllls suggests 14 . I the purpose of IntervIews and reference checks IS to detenmne whether a candIdate IS qualIfied In the sense that he or she possesses the mInllnUm qualIficatIOns for a Job The purpose IS not to detenmne whether an employee's qualIficatIOns surpass the m111unum and, If so, to what extent The employer IS not oblIged to make any efforts to have employees hIred WIthout regard to m11111llUm C]w1Iilie;1(I0I1<:; bec;llIse sllch effOlis would not be reasonable ParabTfaph I (a) refCrs to CIllployees bUl1g hIred "on the baSIS of semonty" and makes no mentIon of qualIficatIons However, I subscribe to the VIew expressed by Mr Gray 111 A1mlstry of Agriculture, Food and Rural AffOlrs and OPSEU GSB #1747/96, deCISIOn dated May 8, 1997 I agree WIth the employer that It would not have been senSIble for the employer to have sought to have offers made solely on the baSIS of semonty It would have made no sense, for example, to seek to ensure that a bll1ldll1g caretaker at the agrIcultural college In KemptvIlle be offered a lecturer's Job at the agrIcultural college 111 Rldgetown merely because the caretaker was sel1lor to the lecturer I agree there must be IlJmts on what the employer C<ll1 be e \IKetul to seek III cIrcumstances lIke those 111 thIS case In my View, the operative IlJmts are those wluch flow from the use of the word "reasonable" to descnbe the efforts the employer IS oblIged to make (pages 8 and 9) A process of InterVIews and reference checks IS one way to detenmne whether a candIdate IS qualIfied, but not the only way Where an applIcant has worked 111 a Job snnIlar to the one applIed for, he or she mIght be found to be qualIfied based upon that expenence In effect, the lImon claIms I~ I qualIficatIOns should be assessed on the baSIS of work expenence m the OPS, WIthout further screemng Is the employer oblIged to attempt to preclude the use of mtervlews and reference checks? Paragraph l(a) reqUIres the employer to make reasonable efforts to ensure employees are "offered pOSItIOns," not to ensure they are offered mtervlews or screened m some other way When thIS proVIsIOn was negotIated, the partIes probably had m mmd the typIcal case of an employee WIth substantIal, recent expenence domg the worh. bemg transferred For such an employee, the wording of pClra!:,'faph 1 (a) 1I1dlcates the employer IS obl1ged to make ITd<;ol1dhlc erlml<, 10 rcmove any slgl1lficant barrIer to a Job bemg offered, 1I1clud1l1g Il1tervlCWS and reference checks The RFP described m Ministry of Natural Resources and OPSEU suggests, when work IS bemg tendered, the employer has acknowledged thIS oblIgatIOn by mandatmg Job offers, not mtervlews The same oblIgatIOn to use reasonable efforts to remove barrIers to Jobs eXIsts III the context of a negotIated transfer of work, although there IS no guarantee reasonable efforts WIll be equally successful m aVOld1l1g screenlllg III these two settlllgs For an employee WIthout suffiCIent, recent expenence m a Job WIthout sIgmficant dIfferences from the one be1l1g sought, It would not be reasonable for the employer to seek to prevent 1IllCrVlew<; dlld reference checks, Just as It IS would not be reasonable to suggesl qll,d died! 1011<; be Ignored The eVIdence mdlcates the MII1lStry made no effort to persuade the County to 111mt the use of thIS sort of screenmg to employees wIthout appropnate work expenence There IS no mentIon of any such effort m the testImony of Ms RIchardson or m the notes of meetmgs attended by 16 representatIves of the MmIstry and County The absence of any such effort IS a vIOlatIOn of paraf,Tfaph 1 (a) IV The second branch of the employer's obl1gatIon IS to make reasonable efforts to ensure tenns and condltlons of employment are as close as possIble to those prevIOusly enjoyed The umon contends the MmIstry contravened paragraph l(a) by not domg more to secure greater compensatIOn for employees who transfer to Hastmgs County The salanes to be paId by the County of Hastmgs are sIgmficantly less than those paId by the Ml11IStry For the posItJOn of Caseworker 11, the one for whIch the largest number of people wIll be lured t he County salary IS not even 85% of the salary for the correspondlllg pO"lt 1011 (It the Ml11IStry There IS also a substantlal shortfall m benefits The Ml11IStry offered one-tnne fundmg 111 the amount of $378,500 to Hastmgs County The offer was refused partly because the County was not wIllmg to 111crease salanes for employees com111g from the OPS and not for others The County's unwIllmgness to have dIfferent wage scales for employees domg the same work IS entIrely understandable and not likely to be overcome Even If all twelve of the employees expected to be dIsplaced at the M111IStry are hIred by the County, they wIll constItute only about one- eIghth of the projected staff of about one hundred 111 the County's Department of SOCIal ServIces GIven thcse llulllbu" ,llld the Coullty s rCjectIon of a two- tler approach to earnmgs, approxImately Clght doll,lrs would be requIred to 1 mcrease the earnmgs of a fonner OPS employee by one dollar ThIS may be i i i i 17 I why the mcentIve offered by the Mmlstry proved msufficlent to persuade the County to Improve salanes and benefits The umon dId not dIrectly challenge the amount of money offered by the MmIstry In partIcular, there IS no eVIdence to mdIcate thIs amount fell short of the "avOIded costs" mentIoned by M r Kaplan III MInistry of Community and SoclOl ,SerVICe\ The 1I111011 '-. ollly speclllL cntlclsm of the mcentIve proposal relatIng to salanes IS th,lt rUlldlllg should have been offered on an ongomg baSIS when one-tune fundmg was rejected There IS no reason to thmk offenng to pay the same amount over a longer penod would have produced a more favourable response As the amount of money on offer bas not been shown to be madequate, I cannot conclude the financIalmcentIve offered by the employer was In contraventIon of ItS oblIgatIOn to make reasonable efforts The unIon contends the MI111Stry Itself should top-up the salanes of any fonner employees hIred by the County of Hastmgs, at least to the level of 85% of theIr fonner eamlllgs ThIs mglllllcnt ,11~o finds no support III the collectIve agreement The employer 1'-. ohllged hy p;lI';lgr;lph I (a) to make reasonable efforts to ensure employees Z1rc "ofrered pOSItIons WIth the new employer on tenns and condItIOns that are as close as pOSSIble" to those prevIOusly enjoyed TIlls language does not readily lend Itself to the InterpretatIOn that the employer IS oblIged to top-up salanes by makmg payments dIrectly to fonner employees workmg for someone else Any doubt on thIS mater IS resolved by paragraph 1 (b) deallllg WIth the sItuatIOn where a job offer entaIls a sIgnIficant reductIon 111 tenns and condItIons of employment If the salary falls below 85% of prevIOUS eammgs, or If servIce or semonty are not recogmzed, the employee may refuse the offer and collect 1'\ . the payments set out 111 paragraph 1 (b) Tn other words, when the partIes turned theIr m111ds to the scenano of an mfenor Job offer, they listed certam entItlements The absence from thIS lIst of any nght to collect a top-up payment from the employer mdIcates no such nght eXIsts V Apart from wages and benefIts, thc only tUlll or cOIH.lttlon of employment contested by the umon IS senlonty Clllployu_\ 11Ircd by the County of Hastmgs wIll not be granted recogmtlon of seniorIty acqUIred whIle employed by the prov111ce For purposes oflayoff, recall and promotIon, theIr sel110nty date WIll be the date they beg111 workmg for the County Sel110nty IS not expressly mentIoned m parabrraph l(a), but the Ul110n contends sel110nty IS one of the "tenns and condItIons of employment" to whIch that paragraph refers, and the employer does not suggest othef\VISe In MInistry of Consumer and COl71l71ercral RelatlOn5;, Mr Roberts held the factors mentIoned 111 paragraph 1 (b )--salary, servIce and sel11onty-- 'were uppennost 111 the partIes' mmds when they negotIated the reasonable efforts proVISIon" found m the preccdlllg p;lr;lgr;lph (p;lge 20) The employer dlsabrrees WIth the 1I1l101l d\ to how AppendIX 9 applIes to the loss of OPS sel110nty 111 the partIcular CIrcumstances of thIS case Employer counsel submIts It should be noted that as a practIcal matter, those OPSEU members dIsplaced by the transfer to Hastlllgs WIll have a level of sel110nty protectIOn whIch may, 111 some Important respects, be greater than the 19 I semonty they currently enJoy The Mlllllclpal1ty has agreed to hIre quahfied OPS staff III respcct or dppro\.1I11atcly thrce tImes as many posItIOns as WIll be lost In the OP<'" due to the tral1sfer Once hIred the twelve OPS staff WIll become part of a hundred person SOCIal servIces department at the County of HastIllgs The balance of the thIrty-five staff needed WIll be hIred after the twelve OPS staff Presumably, the OPS staff wIll move from the bottom of the BelleVIlle County office semonty lIst to a posItlOn a fifth of the way up the HastIngs County sel1lonty lIst The employer's argument rests upon the premIse that the degree of protectIOn afforded by selllonty depend') 110t upon the absolute amount of semonty possessed by an employee, bill r;llher IlpOI1 how that amount compares to the semonty of others III the b;lrgall1lng lllllt wIth whom the IndIVIdual must compete Semonty IS a relatIve matter 111 the sense the employer suggests Does AppendIX 9 obhge the employer to make reasonable efforts to preserve absolute semonty? Or IS the employer's obhgatlon fulfilled If reasonable efforts are made to ensure there IS no dl1TIIllutlOn III the degree of protectIOn afforded by selllonty, regardless of the amount of selllonty accorded to an employee? These questIons gIve nse to some practIcal conSIderatIOns An employee's absolute amount of selllonty can be readily quantIfied--m years, months and days--but there IS no ObVIOII"ly l.orrl.ct y;lrcl')tlck for measunng relatIve semonty Should It be mca<:;urul by the l1umber or people below an employee on the semonty lIst, or by the fractlol1 of the bargammg umt WhICh they compnse') And how should account be taken of the qua!Jficatlons of 20 . those people, a factor whIch has a major beanng upon the value of the employee's placement on the semonty lIst? AppendIx 9 does not address any of the Issues posed by treatmg semonty as a relatIve concept In addItIon, paral:,Tfaph I (b) speaks of "servIce and semonty" bemg "carned over", trC<1t Ing ",cnlonty In the same way as servIce wInch IS not a relatIve conccplln ,lny \l.Il",l. ^rtlclc 18 of the collectIve agreement defines semonty as "Icngth of contllluous servIce", and there IS nothmg to suggest the partIes mtended some other meamng m AppendIx 9 These observatIons led me to conclude the partIes llltended the reasonable efforts oblIgatIOn to apply to the preservatIOn of semonty III the absolute sense, measured 111 years, months and days I note the employer's conduct IS conSIstent WIth thIS mterpretatIon, as the Mmlstry 11l1tla]]y proposed semonty under artIcle 18 the OPSEU collectIve agreement be recognIzed by the County The lll1IOn contends the employer vIOIClted Its oblIgatIon under paragraph l(a) by not makIng grc,ltcr 1I\1. or Illldnclallncclltlves to mduce CUPE Local 1665 to consent to thc rl.Coglllt lOll 01 OPS scnlonty ThIS contentIOn assumes the employer IS obliged to make fundmg avaIlable to proVIde an mducement to employees, such as those represented by CUPE Local 1665, who may be adversely affected by the preservatIOn of OPS semonty In my VIew, thIS assumptIon IS correct The "aVOIded costs to WhICh Mr Kaplan referred m Mmlstry qlCol77l77umty and SoclOl ServIces should be used for thIS purpose DId the employer fulfill ItS oblIgatIon WIth respect to semonty preservatIon? Rather than dealmg dIrectly wlth the localumon, the Mll1IStry endeavoured to have the County obtmn the barg,l1111ng agent s consent As ! 21 . ~ . there were no stnngs attached to the mcentlve fundmg offered to the County, the employer contends these funds could have been used by the County to WIll over Local 1665 Yet the Mmlstry dId not carry thIS matter very far m ItS dealmgs WIth the County No real effort was made by the MlI1lstry to ensure the use of mcentIves was canvassed by the County wIth CUFE Local 1665 The only concrete proposal dIscussed by MlI1lstry and County representatIves mvolved paymg dues to the local umon for the penod for whIch an employee's OPS semonty would be recognized Ms RIchardson testIfied even thIS matter was dropped beC;lll\C oj C()llcU"n It would constItute an unfaIr labour practIce There IS no eVIdence to ~lIggc\1 M~ Rlchdrdson, or anyone else at the Mll1IStry, obtall1ed a legal Op1l110n Mr Smeaton agreed wIth umon counsel's suggestIOn that the use of a financ13l111centlve to obtall1 semonty credIt would be lawful If done m the appropnate way I conclude the employer dId not fulfill ItS reasonable efforts oblIgatIon WIth respect to semonty recogmtlon The M1111Stry faIled to carry out an adequate exploratIOn of thIS matter, eIther by offenng an mcentlve dIrectly to CUFE or by attemptmg to ensure the County dId so The subject was dropped out of concems over legalIty for whIch the eVIdence reveals no solId foundatIOn In the event reasonable errort" provc 1I1l,lhlc to c;ccure full recogmtlon of OPS semonty, the umon contends P8[8g[;lph 1(8) reqll1res the employer to attempt to secure a "secondary" semonty I1st Under such a lIst, the rankmg of fonner OPS employees relatIve to one another, but not relatIve to other members of a mUnIcIpal barga1l11l1g umt, would be detenn1l1ed by semonty acqUIred m the OPS I agree WIth thIS argument 22 ;. . ~ VI The umon also contends the employer VIOLllullh re;l\Ol1dble efforts oblIgatIOn by not allowmg local OPSEU reprcSCl1tatlves a sufficIent opportumty for "mput" concernmg the MmIstry's negotIatIons WIth Hastmgs County The only speCIfic matter addressed 111 eVIdence concerns the allegatIOn that the MmIstry's mtenm abrreement wIth the County was not gIven to umon representatIves Ms RIchardson testIfied they were mfonned of the contents of thIS agreement Faced 111 cross-exam111atIOn wIth the assertIOn that umon offiCIals were not gIven a copy of the document, Ms RIchardson neIther agreed nor dIsagreed She sImply SaId there was no reason why they would not have been gIven a copy Based on thIS eVIdence, 1 conclude the UTIlon has not proven 11\ ;lllLgdllol1 VII The relIef sought by the uTIlon IS a declaratIOn that the employer has contravened paragraph 1 (a) of Append!'. 9 111 certam respects T have concluded the employer breached thIS provIsIon by (1) not makmg reasonable efforts to preclude the of LIse an 111tervIew and reference checks for an employee wIth substantial, recent expenence m a Job not slg1l1ficantlv , dIfferent than the one bemg sought, (2) not makmg reasonable efforts to f utIlIze financIal mcentIves to obtam the approval of CUPE Local 1665 for recogmtIOn of OPS se1l10nty, and (3) not Illak Il1g reasonable efforts to obtalll a secondary se1110nty I1st, when I'll I I recoglllt 1011 01' OPS <;;elllonty was not achIeved n /?~ RIchard M Brown Ottawa, OntarIo August 4, 1998 2-l