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HomeMy WebLinkAbout1998-0320.Union.99-11-10 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 0320/98 OPSEU # 98U073 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SElTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Emplovees Umon (Umon Gnevance) Grievor - and - The Crown 111 RIght of Ontano (Mimsm of TransportatIOn) Emplover BEFORE Loretta Mikus Vice Charr FOR THE RIchard BlaIr GRIEVOR Counsel, Ryder Wnght, BlaIr & Dovle Barnsters & SohcItors FOR THE SWIil Kapur EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARING November 4 1999 These gnevances anse from the MiillStIy of Transportanonos decIsIon to outsource some of ItS work at the New LIskeard locanon. The background for these gnevances was set out In an earher decIsIon of thIs Board dated October 12, 1999 concernmg several prelImmary matters. Those prehmInary matters arose out of the Uillon gnevance (GSB # 0320/98) wmch was resolved by the followmg Minutes Of Settlement and Release THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (oOPSEUo) AND THE CROWN IN THE RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF TRANSPORTATION (oMINISTRYo) MINUTES OF SETTLEMENT AND RELEASE The PartIes agree to resolve all matters ans111g out of the gnevances referred to b, GSB # 0320/98 and OPSEU #98U073 on a wIthout prejUdICe and precedence basIs as follows. 1 The Milllsm will be penllltted to close ItS call for tender and/or RFPos, evaluate, announce the preferred bIdder and beg111 Implementation wIth regard to the follow111g Area Ma111tenance Contracts. These AMCos will close on the dates specIfied below' ( a) AMC 98-10 Juh 8th, 1998 ( b) AMC 98-02 Juh 8th, 1998 ( c ) AMC 98-03 Juh 8th, 1998 ( d ) AMC 98-04 Juh 8th, 1998 ( g) AMC 98-05 Juh 22, 1998 (f ) AMC 98-06 Juh 22, 1998 2 OPSEU agrees that the mandatory cntena and the HRIF evaluation cntena 111cluded 111 the AMCos are suffiCIent to meet the Milllsm'os reasonableness efforts up to that part of the process and releases the Milllsm from all habihh 111 relations thereto 3 The partIes agree that thIS Milllsm rema111S obhgated to negotiate WIth regard to the HRIF as stipulated 111 the RFP Therefore, the partIes agree to the follow111g process 111 relation thereto With regard to AMCos ( a ) to ( d) OPSEU will be provIded WIth a 5 day penod between August 10 and 31 1998 wIth111 whIch to reVIew the efforts that the Milllsm has undertaken 111 relations to the HRIP If OPSEU has an, concerns WIth regard to the Milllsm'os efforts 111 2 3 relatIons thereto, OPSEU may refer the matter to mediatIon/arbItratIon wltlun that 5 day penod and the matter must be dealt wIth and completed wltlun tlus tune frame WitlI regard to AMOs ( e ) and ( f), OPSEU will be provIded wIth a 3 day penod between August 24 and September 11 1998 wltlun whIch to reVIew the efforts tllat tlle Mimsm has undertaken m relatIon the HRIF If OPSEU has an, concerns wIth regard to the Mimsm'os efforts 111 relatIon thereto OPSEU may refer the matter to mediatIon/arbItratIon wlthm that 5 day tIme penod and the matter must be dealt wIth and completed wltlun the tIme frame 4 The partIes agree that the follow111g emplovees shall receIve theIr surplus notIces on or about the start date of the contract. Those are emplovees who have penSIOn optIons on the start date of the contract. Peter Jackson Bruce Kydd H.J McMillan Ra, Dillabough N.R. Clark. Wendall Webster 5 The partIes agree that the emplovees set out 111 paragraph 4 shall be removed from tlle RFPos and further agree that an, other sImilarh ehgible emplovees, If an, shall be treated 111 the same manner as specIfied 111 thIS paragraph and 1 above 6 The emplovees hsted 111 paragraph 4 and other snnilarh SItuated emplovees If an, as referred to 111 paragraph 5 shall forthwIth elect to retIre or penSIOn bndge, pursuant to paragraph 2 or 3 of AppendIx 9 whIch ever artIcle IS apphcable to that emplovee and will exerCIse no otller nghts wIder ArtIcle 20 except as provIded 111 paragraph 2 or 3 of AppendIx 9 7 OPSEU releases tlle Mllnsm from all habihty WltlI regard to tlle provIsIOns of paragraph 5 of AppendIx 9 8 An, dIspute WIth regard to the nnplementatIon of thIS agreement shall be referred to the GSB The one Issue remaIillng IS whether these Minutes of Settlement resolve all of the mdivIdual and group gnevances of the employees affected by the outsourcmg of work. The mdIvIdual and group gnevances allege that some employees were Improperly placed on the RFP.s because theIr work contmues to be 3 4 performed by the MOT The Uillon takes the pOSITIOn that Issue has not been resolved by the Minutes of Settlement and Release. The Employer on the other hand, submItted that all matters relatmg to tills outsourcmg of work have been resolved and the gnevances are not arbItrable Havmg revIewed the Minutes of Settlement and Release and consIdered that the submIssIons of the partIes, I am of the VIew that the gnevances must be dismIssed. The ongInal gnevance, dated May 31 1998 was a Uillon gnevance allegIng a vIOlaTIon of Appendix 9 (Reasonable Efforts) and askmg that all mdivIduals detnmenta1ly affected be made whole. The partIes reached an agreement respectmg that gnevance m willch the Uillon agreed that the Employer had met ItS oblIgaTIons under AppendIx 9 It released the Employer from any lIabihty m that regard. It was Important at the tIme that there be an agreement otherwIse the Employer would have been unable to fulfill ItS objectIve oftransfemng thIs work to the pnvate sector The agreement freed the Employer from any concems about accepTIng bIds from pnvate comparues and aCTIng on them. These Minutes of Settlement and Release were clearly mtended to apply to all aspects of the transfer of work. The agreement sets out the elements of the reasonable efforts reqUIrements and Includes an appeal process m the case of a disagreement. The partIes specIfically turned theIr mmds to the quesTIon of whIch employees should be surplussed because of penSIOn consIderaTIons. The partIes, m draftIng the agreement, used very strong language to mdicate theIr mtenTIons. The agreement IS not sImply an agreement to resolve certaIn Issues. The partIes stated that the agreement was to resolve -all matters arising out of the 4 5 grievance referred to by GSB # 032099" As well, the Uillon specIfically -released- the Employer from all habihty ansmg from the mandatory cntena and the HRlP evaluanons. The Uillon also released the Employer from any habihty under paragraph 5 of Appendix 9 whIch deals WIth the nght of employees to tender bIds on tenders The mdivIdual gnevances allege a breach of Appendix 9 The partIes have agreed that the Employer has fulfilled Its obhganons under that Appendix and the Uillon has released the Employer from any habihty thereof. That Issue and all related Issues anSIng from that ongInal gnevance have been resolved. The gnevances are therefore dIsmIssed. Dated at Toronto, Ontano thIS 10th day of November 1999 Loretta Mikus, Vice-Chair 5