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HomeMy WebLinkAbout2000-1252.Union Grievance.01-02-08 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L "ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1252/00 OPSEU#OOU 148 OOU 149 OOU 150 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Gnevor - and - The Crown m RIght of Ontano (Mimsm of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE RIchard Brown V Ice Chair FOR THE DavId Wnght, Counsel GRlEVOR Ryder Wnght, BlaIr & Doyle BarrIsters and SolIcItors FOR THE Len Mam Semor Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING Januan 22,2001,Janu~ 25 2001 2 DECISION TIllS umon polIcy gnevance anses out of the unpendmg opemng of the Central North CorrectIOnal Centre (CNCC) m Penetangmshene The property and buildmgs at tlllS sIte are owned by the provrnCIal government. TIle government's mtentIOn IS to find a pnvate-sector contractor to operate the facilIty Some or all of tlle employees at each of four mstItutIons now operated by tlle Mimstry of SohcItor General and Correctional ServIces have receIved notices, under AppendIx 18 of tlle collectIve agreement, mfonnmg tllem tllat tllerr Jobs will be mcluded m tlle request for proposals (RFP) to operate CNCC TIle four facilIties are (1) Barne Jail, (2) Pany Sound Jail, (3) Burtch CorrectIOnal Centre, and (4) Guelph Correctional Centre The gnevance poses a nmnber of Issues TIllS decIsIOn deals exclusIVely With employees whose work will be pnvatIzed at the SaIne tIme as It IS moved to CNCC and With the question whether they are entitled, tmder AppendIx 13, to be reImbursed for the cost of relocating. I AppendIx 13 IS entitled ''Relocation of Operation Beyond 40 Kilometre RadIus" It states The Employer and Umon hereWith agree that, when a m1ll1stry decIdes to change an operatIOn's headquarters to a locatIOn outsIde a forty (40) kilometre radms of that operation's current headquarters, the followmg terms and condItions will apply- (1) affected employees will be notified, m wntmg, of the m1ll1stry's decIsIOn to change the operation's headquarters location and the date when such change will take place, 3 (2) (a) employees may accept the change m headquarters locatIOn, m whIch case they will be ehgible for reImbursement of relocation costs m accordance With the Employer's relocation polIcy; or (b) employees may reJect the change m headquarters location, m whIch case they will be gIVen SIX (6) Imnths' notice of lay-off pursuant to ArtIcle 20.2 1 (NotIce and Pay m LIeu) and have full access to the proVIsIOns of ArtIcle 20 (Employment Stabihty) and AppendIx 9 (Employment StabilIty) of the Central Collective Agreement. (3) If several employees hold the same posItion and fewer oftherr posItIons are requrred m the new headquarters locatIOn, the employees With the greatest semonty will be gIVen the opportunIty to go to the new headquarters locatIOn first. (4) It IS understood that when an employee accepts the change m headquarters location m accordance With tlllS Memorandum of Agreement, the proVIsIOns of ArtIcle 6 (postIng and Fillmg of VacanCIes or New PosItions) shall not apply Some or all of the four mstItutIOns lIsted above are more than forty kilometres from Penetangmshene For employees at sItes fallmg WithIn thIs category, the employer conceded that AppendIx 13 would apply If the Mimstry of SohcItor General and Correctional ServIces were to operate CNCC upon ItS opemng. The government's mtentIOn IS to have the Mimstry nm tms facihty only If a smtable contractor cannot be found. The employer contended AppendIx 13 would not apply If CNCC opens tmder pnvate-sector management. AccordIng to the umon, AppendIx 13 applIes regardless of who 1ll1tIally manages the sIte It IS common grOlmd that the collective agreement creates three sets of nghts. (1) surplussmg nghts tmder artIcle 20 wmch apply when work formerly done by employees m the pubhc servIce ceases to be done, (2) nghts tmder 4 AppendIx 13 whIch apply when work IS relocated from one sIte to another; (3) and nghts under AppendIx 18 whIch apply when work IS moved from the OPS to the pnvate sector The crux of the dIspute IS whether the latter two sets of nghts are mutually exclusIvely Umon counsel submItted employees are entitled to exerCIse botll sets of nghts when tllerr work IS relocated and pnvatIzed at the same tune Accordmg to counsel for the employer, AppendIx 13 applIes only to tlle movement of work WItl11ll the pubhc servIce, not to a transfer of work from tlle publIc servIce to tlle pnvate sector Counsel for tlle umon noted tlle property and buildmgs at CNCC will continue to be owned by the provmCIal government, regardless of who manages the sIte, and the locatIOn of thIs correctIOnal centre was determmed by the government. COlmsel also argued the applIcation of AppendIx 13 should not depend upon whether the work to be performed at CNCC IS 1ll1tIally done WithIn the publIc servIce and later pnvatIzed or thIs work IS pnvatIzed at the saIne tIme as It IS moved to CNCC Tummg to the language of AppendIx 13, umon cOlmsel contended the reference m paragraph 2(b) to AppendIx 9 mdIcates the partIes mtended relocation costs to be reImbursed where work IS both relocated and pnvatIzed. Accordmg to thIs lme of argument, If thIs was not the mtentIon, there would be no reason to refer to AppendIx 9 wmch deals With pnvatIzatIon. In tms regard, counsel noted paragraph 2(b) does not refer to only part of AppendIx 9, but rather confers "full access to the proVIsIOns of AppendIx 9 " COlmsel for the employer argued "relocatIOn" m AppendIx 13 means relocation WithIn the publIc servIce NotIng AppendIx 13 makes no mention of pnvatIzatIon, cOlmsel drew my attention to AppendIx 18 wmch deals With pnvatIzatIon m detail but does not confer any entitlement to reImbursement for 5 movmg expenses. As to the reference to AppendIx 9 m paragraph 2(b) of AppendIx 13, employer counsel contended tlllS paragraph does no more tllan create an entItlement to monetary benefits, those described m paragraphs 2, 3 and 4 of AppendIx 9, on the part of an employee who decIdes not to relocate WItl11ll tlle publIc servIce Employer counsel also contended the umon's mterpretatIOn of AppendIx 13 creates a number of COnflICts between It and AppendIx 18 For present purposes, only one need be recounted. Counsel submItted employees who reJect a relocatIOn under paragraph 2(b) of AppendIx 13, are entItled to exerCIse all nghts tmder artIcle 20, mcludIng those wmch allow a person to obtaIn another Job WIthm the publIc servIce through dIsplacement or recall, whereas employees who elect not to move to a pnvate employer, tmder paragraph 6C.2 of AppendIx 18, have no nght to remaIn m the pubhc servIce Based upon tms readIng of the collectIve agreement, cOlmsel argued there would be a COnflICt between AppendIx 13 and AppendIx 18 If both apply to an employee whose work IS relocated and pnvatIzed. In reply, counsel for the umon advanced an mterpretatIOn of paragraph 2(b) of AppendIx 13 wmch avOIds any COnflICt With AppendIx 18 AccordIng to thIS understandIng, the entItlements of an employee who reJects a change m headquarters, tmder paragraph 2(b), depend upon whether the person's work IS pnvatIzed when It IS moved. When the relocated work IS transferred to the pnvate sector, the employee has nghts tmder AppendIx 18 but no entItlements tmder artIcle 20 When the relocated work remaInS WithIn the publIc servIce, the employee has artIcle 20 nghts but no entItlements tmder AppendIx 18 II 6 AppendIx 13 apphes when the headquarters of an operatIOn IS moved more than forty kilometres and the operatIOn remains WIthm the publIc servIce Does tlllS appendIx also apply when tlle headquarters of an operation moves the same dIstance m the course of bemg pnvatIzed? In answenng tlllS question, I begm WItll tlle wordIng of AppendIx 13 The title refers to the "relocatIOn of an operation." LikeWise, the openmg sentence speaks of a "change" m the "location" of an operatIOn's headquarters In both places, the language addresses a change m locatIOn. Nowhere m tlllS appendIx IS tllere any explIcIt reference to pnvatIzatIon or to a change of employer In otller words, AppendIx 13 does not expressly mdIcate that It applIes when a change m locatIOn comcIdes With the transfer of work to a pnvate-sector employer Nor does thIs appendIx contam any express mdIcatIon that ItS does not apply m thIs sort of scenarIO In decIdIng what to make of thIs silence about a change of employer, one should bear m mmd the nature of the entitlements created by AppendIx 13 An employee to whom thIs appendIx applIes IS entItled to reImbursement of expenses mcurred m the course of relocatIng. If accepted, the umon' s mterpretatIon would mean employees would be entitled to be reImbursed by the Mimstry for the cost of movmg to take a Job With a new employer As collective agreements typIcally do not entitle employees to reImbursement for the cost ofmovmg from one employer to another, even when someone'sJob moves between the two, clear language would be requITed to create such an entitlement. The absence of language of thIs sort m AppendIx 13 suggests the partIes dId not mtend the entitlement to reImbursement of relocation costs to apply m the context of a change of employers 7 Further support for tlns mterpretatIOn IS found m AppendIx 18 It deals exphcItly and extensIvely WItll tlle entitlements of employees who move to a pnvate sector employer, but says noting about movrng expenses InterpretIng AppendIx 13 as not applymg to a change of employer also aVOIds any need to read mto paragraph 2(b) a InnItatIon winch IS not supported by tlle language of tlns proVIsIOn but IS necessary to render It consIstent WItll AppendIx 18 On ItS face, paragraph 2(b) preserves all artIcle 20 nghts, mcludmg tllose relatIng to dIsplacement and recall, for all employees fallmg under AppendIx 13 who elect not to relocate While argumg AppendIx 13 applIes m the context of pnvatIzatIon, umon cOlmsel conceded paragraph 2(b) does not preserve dIsplacement and recall nghts m the case of an employee who declmes to relocate to a pnvate employer ThIs conceSSIOn IS necessary to render AppendIx 13 consIstent With AppendIx 18 Yet there IS nothIng m the language of paragraph 2(b) to suggest any employee governed by AppendIx 13, who elects not to relocate, IS demed dIsplacement and recall nghts To the contrary, thIs paragraph expressly preserves all artIcle 20 nghts for all employees fallmg tmder tills appendIx who do not relocate The umon's tortuous readmg of paragraph 2(b) IS rendered unnecessary by mterpretmg AppendIx 13 as the employer suggested. Accordmg to thIs mterpretatIon, thIs appendIx applIes only to employees whose work IS relocated WithIn the publIc servIce, and paragraph 2(b) preserves artIcle 20 nghts for any such employee who decIdes not to relocate The reference to AppendIx 9 m AppendIx 13 does not assIst the umon. Paragraph 2( a) of AppendIx 13, cbalmg With reImbursement for relocation costs, does not mention AppendIx 9 It IS mentioned m paragraph 2(b) By allowmg access to the proVIsIOns of AppendIx 9, paragraph 2(b) merely entitles 8 employees, who declme to follow theIr work WIthm the OPS, to the same monetary benefits as are available, under some cIrcumstances, to employees whose work IS pnvatIzed. TIus analysIs leads me to conclude AppendIx 13 does not apply to employees whose work IS pnvatIzed. When work IS relocated at the same tune as It IS transferred to the pnvate sector, artIcle 6C of AppendIx 18 allows the employees affected to claim the Jobs resultIng With the new employer, but to do so they must be able and willmg to bear any cost of relocatIng. AppendIx 13 does not entItle such employees to be reImbursed for relocation costs From the umon's pomt of VIew, thIs mterpretatIOn IdentIfies a gap m the protection afforded to employees by the collective agreement. The decIsIOn whether to fill thIS gap rests With the partIes to the agreement and not With an arbItrator If they determme greater protection IS warranted, It IS for them to decIde whether to create an entitlement to reImbursement for relocation costs, an entItlement to remaIn WithIn the OPS or some other form or relIef. 9 TIns part of the gnevance IS dIsmIssed. Dated at Toronto, tlns 8th day of February, 2001 Richard Brown, Vice-Charr