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HomeMy WebLinkAbout2002-0211.Union Grievance.02-10-24 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0211/02 UNION#02UOI0 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) Grievor -and- The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION DavId Wnght Counsel Ryder Wnght, Blair & Doyle FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING July 2, September 17 October 7 2002 2 DECISION The UnIon gneves the employer's refusal to convert to classIfied status a number of unclassIfied dnver exammers who have worked full-tIme for more than two years The only Issue between the partIes IS whether "the mmIstry has determmed that there IS a contmumg need for that work to performed" wIthm the meanIng of the collectIve agreement I The gnevance anses agamst the backdrop of the Impendmg pnvatIzatIOn of dnver exammatIOn servIces The process began m November of 2000 when the MmIstry Issued a Request for QuahficatIOns and ExpressIOns of Interest (RFQ) wIth the objectIve of IdentIfymg quahfied bIdders The enabhng legIslatIOn, The Improvzng Customer Servlce for Road [J,sers Act, receIved Royal Assent on November 2,2001 Also m November of2001, the UnIon receIved formal notIficatIOn of the MmIstry's mtent to pnvatIze dnver exammatIOn serVIces and classIfied employees were asked to elect whether they wIshed to follow theIr Jobs to the receIvmg employer or to take an enhanced severance package under AppendIx 18 of the collectIve agreement The enabhng legIslatIOn was proclaimed m force on December 14,2001 On December 18,2001, a ConfidentIal InformatIOn Memorandum (CIM) was Issued to quahfied bIdders The CIM contams a tImetable mdIcatmg the successful bIdder would be selected on Apnl 1, 2002 and would begm provIdmg servIces sometIme between August and October of that year 3 AppendIx F to the CIM hsts the contmuous serVIce date, senIonty, salary and locatIOn of each of the 31 classIfied employees who had elected to transfer to a new servIce provIder The MmIstry converted unclassIfied dnver exammers who reached the two-year mark before the Issuance of the CIM, but has refused to convert anyone who reached tlus mark at a later date Requests for converSIOn m such CIrcumstances were tWIce denIed by Warren Blackmore, RegIOnal Manager for the Southwest RegIOn, first on January 14,2002 and agam on February 1,2002 On both occaSIOns, Mr Blackmore wrote "However It should be noted that If the date of the transfer were to ShIft sIgnIficantly, the MmIstry may reassess ItS posItIOn WIth respect to contmumg need." The gnevance was filed on January 25, 2002 The remedy sought was "full redress" mcludmg "that the mmIstry convert all ehgible employees" A revIsed CIM, dated June 25, 2001, mdIcates the successful bIdder would be selected by October 31, 2002 and describes the antIcIpated transfer date as "end 2002" An "update" Issued to employees on June 26,2002 states "a transfer of the busmess could happen as early as the end of 2002" (page 3, emphasIs added) At the tune of the heanng, the MmIstry antIcIpated a bIdder would be selected m December of 2002 and would begm provIdmg serVIces by the end of March, 2003 Paul Dunseth IS unIon chair of the MmIstry Employee RelatIOns CommIttee (MERC) He IdentIfied aJob postmg, dated November 16,2001, for tlurteen posItIOns WIth contract tenns of five-months and twenty-nme days Mr Dunseth testIfied the MinIstry contmued to lure unclassIfied employees after December of 2001 He also testIfied that m June of 2002 a number of unclassIfied employees had theIr contracts extended untIl 4 December of 2002 Two such employees are DavId Seebach m London and Stuart Cottenll m St Cathennes, both of whom reached the two-year mark on January 10,2002 A letter dated June 19,2002, from the MmIstry to Mr Seebach, states Ius contract was bemg extended untIl December 27, 2002 ThIS represented an extensIOn of five months and twenty-nme days, the standard term for MmIstry contracts On June 24, 2002, Mr Cottenll sIgned a contract wIth a tenn runnIng from July 1 to December 30, 2002 Paragraph 4 of the contract states "As you know the MmIstry of TransportatIOn IS seekmg to outsource Dnver ExammatIOn ServIces and as a result your contract wIll be extended for 5 months and 29 days" A summary prepared by the MinIstry hsts twenty-two employees, Mr Seebach bemg one, who had reached the two-year mark before the gnevance was filed and whose contracts have smce been extended to December 27, 2002 In cross- exammatIOn, Mr Dunseth conceded not all contract employees were renewed. Blake Forrest IS ExecutIve Lead for the Dnver ExammatIOn Project and has been mvolved m the pnvatIzatIOn process smce ItS mceptIOn Asked m exammatIOn-m-cluef why no employees have been converted smce the Issuance of the mItIal CIM, Mr Forrest answered tlus was when the data room was opened to potentIal bIdders and they lured lawyers and accountants and began makmg other mvestments m the preparatIOn of a bId. He also noted that the number of employees hsted m the CIM IS one of the components factored mto bId preparatIOns Accordmg to Mr Forrest, the revIsed CIM changed only "secondary" factors, such as perfonnance reqUIrements and mventory to be transferred, and made no changes to the human resources part of the deal In cross-exammatIOn, Mr Forrest 5 conceded that It was stIll possible for the MmIstry to change the CIM. He also admItted that the mfonnatIOn refreshed m the data room, between January and June of 2002, affected the "costs and revenues" mvolved m provIdmg servIces and, therefore, would "bear upon the pncmg of a bId" Asked m re-exammatIOn what type of amendment to the CIM would be possible today, Mr Forrest rephed "ones that dId not sIgmficantly affect the scope of the deal as outhned m the RFQ" He went on to sayan amendment whIch mcreased the number of employees bemg transferred would "sIgmficantly change the deal" Mr Forest also testIfied two reasons why the process took longer than mItIally planned are the recent OPSEU stnke and the unexpectedly large number of comments made by bIdders about the draft transfer agreement Commencmg m November of 2000, the mmIstry sent to employees a senes of "updates" appraIsmg them of the progress of the pnvatIzatIOn process The first, dated November 9, 2000 speaks of the ''posslble transfer of the MTO dnver exammatIOn servIce to another servIce provIder" (page 1, emphasIs added) ThIS update states that an RFP (request for proposals) would be Issued "If quahfied bIdders are found" as the result of the Issuance of an RFQ and that servIces would be transferred "If a successful bIdder IS found" as a result of the Issuance of an RFP Almost all subsequent updates also refer to a "possible transfer" The most recent one, dated June 26, 2002, contams the followmg questIOn and answer Q3 When wIll a serVIce provIder be selected? A3 If a successful bldder lsfound, the recommended bIdder's proposal and a finahzed busmess case wIll be presented for the government's for consIderatIOn (emphasIs added) 6 II The gnevance was filed under the 1999-2002 collectIve agreement ArtIcle 31 15 1 of that agreement states 31 15 1 1 Where the same work has been perfonned by an employee m the UnclassIfied ServIce for a penod of at least two (2) consecutIve years, except for sItuatIOns where the unclassIfied employee IS replacmg a classIfied employee on leave of absence authonzed by the Employer or as provIded for under the Central CollectIve Agreement, and where the mlnzstry has determzned that there lS a contznuzng need for that work to be performed on afull-tlme basls, the mmIstry shall estabhsh a posItIOn wIthm the ClassIfied ServIce to perform that work. (emphaSIS added) 31 15 1 2 Where the mmIstry has determmed that It wIll convert a posItIOn m accordance wIth 31 15 1 1, the status of the mcumbent m the posItIOn wIll be converted from unclassIfied to classIfied, provIded that the mcumbent has been m the posItIOn m questIOn for at least two (2) years The current agreement has reduced the tIme penod reqUIred for converSIOn of both a posItIOn and an employee from twenty-four months to eIghteen months I was referred to four decIsIOns deahng wIth the subject of contmumg need m the context of downsIzmg or pnvatIzatIOn In chronologIcal order, they are (1) Ontarzo Publzc Servlce Employees' Unzon (Lynch-Burrw.) and Mlnzstry ofCommunzty and Soczal Servlces, dated Feb 8, 1995, GSB FIle No 1078/92 (DIssanayake), (2) Ontarzo Publzc Servlce Employees' Unzon (Burdltt) andMlnzstry o.fHealth, dated May 16, 1997, GSB FIle No 1179/96 (Bnggs), (3) Ontarzo Publzc Servlce Employees' Unzon (MlStry) 7 and Ontarzo Human Rlghts Commlsszon, dated Feb 10, 1998, GSB FIle No 0569/96 (V enty), (4) Ontarzo Puhlzc Servlce Employees' Unzon and Mlnzstry of Fznance, dated Dec 11, 1998, GSB FIle No 1237/98 (Bnggs) The Lynch-Burros case was decIded under the 1992-93 collectIve agreement, whereas the latter three cases were decIded under the 1994-98 agreement Under both contracts, there were two cntena for the converSIOn of an unclassIfied posItIOn to a classIfied one (1) that "the same work has been performed by an employee m the UnclassIfied ServIce for a penod of at least two (2) consecutIve years", and (2) that "the mmIstry has detennmed that there IS a contmumg need for that work to be perfonned on a full-tIme basIs" Under the 1992-93 agreement, when an unclassIfied posItIOn was converted to a classIfied one, It was posted so that unclassIfied employees could compete for It There was no prOVISIOn for the dIrect converSIOn of an employee In contrast, the 1994-98 agreement provIded for the converSIOn of not only posItIOns but also employees, as does the 1999-2001 agreement The gnevor m Lynch-Burrus worked at the Huroma RegIOnal Centre, a resIdentIal facIlIty for the developmentally handIcapped, whIch had adopted a "downsIzmg" and "zero-admIssIOns" polIcy m 1987, wIth the "ultImate goal" of closmg by 2015 (page 8) Ms Lynch-Burros was employed there as an unclassIfied employee from Apnl 28, 1989 untIl May 30,1992, a penod of Just over 37 months In Apnl of 1991, when she reached the two-year mark, she mqUIred about converSIOn and was told by her manager not to "rock the boat" because "her posItIOn was safe" (page 4) She gneved after bemg tennmated some thIrteen months later VIce-Chair DIssanayake began wIth some general comments In the Unzon Grzevance (supra) the Board had occaSIOn to mterpret the phrase "Where the MmIstry has detennmed that there IS a 8 contInuIng need for the work to be perfonned", In artIcle 3 15 The majorzty of the Board held that for that condltzon to be met the determlmngfactor was not the employer's declszon to not post a vacancy In other word~, the fact that an employer decldes not to apply artlcle 3 15 zn a partlcular sltuatzon, lS not necessarzly conclUSlve proof that the employer had not determzned that there was a contznuzng need. Thls condltzon rather must be assessed on the basls of the objectlve facts as to what the employer dld wlth the work zn questzon We relterate that reasomng To do otherwIse would be to allow the employer to CIrcmnvent artIcle 3 15 by merely aVOIdIng makIng a formal decIsIOn or by statIng that It had not decIded that there was a contInuIng need for the work, when the objectIve facts pOInt clearly to the contrary, that the employer contInued to have that work performed In the regular course That would be tantamount to allowIng the employer to aVOId ItS oblIgatIOns by sImply decIdIng that artIcle 3 15 does not apply to, a partIcular sItuatIOn (page 6, emphasIs added) TurnIng to the facts at hand, the VIce-chair wrote Based on thIS eVIdence, the Board cannot reasonably conclude that as of May 1991, the employer had determIned that there was a contInuIng need for the performance of the work the gnevor was performIng The eVIdence IndIcates that at that tIme her contract was extended specIfically for the purpose of dOIng a reVIew to find out whether there has such a contInuIng need. Her contract was extended untIl the reVIew was complete At the end of the reVIew, by decIdIng that the employer could manage wIthout the gnevor's servIces, In the capacIty of an unclassIfied or classIfied employee, the employer In effect determIned that there was no contInued need for her work to be performed beyond that date UnIon counsel further argued that If the Board allows the employer to carry on performIng regular work through the use of unclassIfied employees beyond two years under any cIrcumstances, wIthout tnggenng artIcle 3 15, that would permIt the employer to CIrcumvent the converSIOn reqmrement by commenCIng a reVIew at the end of two years and carrYIng on such reVIew IndefinItely That would render the two year lImIt In artIcle 3 15 meanIngless WhIle we understand counsel's concern, we are satIsfied that In those cIrcumstances, If the Board finds that the reVIew was not a bona fide 9 exerCIse but merely a pretext to get around the collectIve agreement, the Board would have the power to deal wIth that In the present case there IS no suggestIOn that the reVIew was anytlung but a legItnnate busmess undertakmg resultmg from a mmIstry wIde operatIOnal reVIew, whIch had been contmumg for several years In our Vlew where the work zn questlOn contznues to be performed by unclassffied employees It lS generally reasonable to presume that that work was contznuzng zn that manner because the employer had determzned that there was a needfor the contznued performance of that work. However, that would only be a rebuttable presumptlOn Once It lS estab!Zshed that the work contznued, the onus shffts to the employer to explazn why that was happemng, ff It had not declded that there was a contznuzng needed for the work to be performed. An explanatlOn whlch lS merely a scheme to Clrcumvent the collectlve agreement obvlOusly wlll not suffice to rebut the presumptlOn In the case at hand the employer, has met that onus by leadmg specIfic eVIdence to explam legItnnate reasons for extendmg the gnevor's contract beyond the two year penod. (pages 11 to 14, emphasIs added) Based upon tlus reasonmg, the panel chaired by Mr DIssanayake unanImously dIsmIssed the gnevance The gnevor m Burdltt was employed m the Adolescent Cluldren's UnIt, as an unclassIfied employee On Apnl 3, 1996, the gnevor asked to be converted to the status of a classIfied employee ThIS request was made nnmedmtely after the strike resultmg m the 1994-98 collectIve agreement whIch first provIded for the converSIOn of employees and not Just posItIOns Two weeks after her request, employees were mfonned that the UnIt would be transferred to a communIty-based servIce provIder As of May of 1996, the employer expected the transfer to occur m Apnl of 1997 and advIsed "people m the communIty" that "It was busmess as usual" untIl the transfer date (page 12) The gnevor contmued to work as an unclassIfied employee 10 untIl March 31, 1997, some eleven months after she had requested converSIOn Allowmg her gnevance, VIce-Chair Bnggs wrote [T]he Employer knew or thought It likely that there would be a contmumg need for the work of the gnevor to be done for at least the next eleven months Indeed, the Employer conceded that the gnevor's work had to be done dunng m the "transItIOn penod" UnclassIfied employees must work for a two year penod pnor to requestmg converSIOn Two years IS not an mSIgmficant penod of tune In tlus case, the gnevor asked for converSIOn vIrtually upon returnmg to work after the pubhc sector strike Shortly after her request, the Employer mfonned staff that m approxImately a year, the agency would probably be transferred to the broader pubhc servIce The affect of the Employer's posltzon zn th,s case lS that It can refuse to convert the grzevor to classffied status and yet contznue to asslgn her to work as an unclassified employee for a perzod of tlme whlch lS approxlmately equal to fifty percent of the tllne It took her to qualffy for converszon zn the .first znstance I cannot agree that merely because there was a known date or an approxlmate date for the work to be przvatlzed, that there lS no "contznuzng need"for the work In th,s case, It was thought that the work would be tran~ferred to an outslde servlce provlder zn the broader publzc serVlce afull year after the grzevor asked to be converted. In my Vlew, a year lS sufficlent to .find a "contznuzng need"for the work as consldered zn artlcle 31 15 1 1 (page 12, emphasIs added) In Mlstry, the gnevor was an unclassIfied employee at the Ontano Human RIghts CommIssIOn whIch decIded m 1995 to elunmate unclassIfied staff m stages She too sought converSIOn unmedmtely after the 1996 stnke whIch produced the 1994-98 collectIve agreement mtroducmg the nght of employees to be converted She was tennmated approxImately five weeks later VIce-Chair Venty wrote ArtIcle 31 15 1 1 confers the power of detennmatIOn regardmg "a contmumg need for that work" upon the employer I do not read It as an mtentIOn to confer absolute power, but rather sometlung m the nature of a dIscretIOn to be exercIsed m a bona fide manner m the 11 context of artIcle 31 15 1 1 The detennmatIOn IS a questIOn of fact and must be done wIth at least a show of reason related to the facts and the surroundmg CIrcumstances (page 16) The most recent decIsIOn cIted by counsel IS Mlnzstry of Fznance mvolvmg the transfer of work from the provmce to the Ontano Property Assessment CorporatIOn effectIve December 31, 1998 The umon filed a polIcy gnevance seekmg the converSIOn of 133 unclassIfied assessors In September of 1997, they had been told that, "pendmg the passage of legIslatIOn", the mmIstry would cease perfonnmg assessment work m 1998 (page 3) As of the transfer date, the length of tune they had worked beyond the two-year mark ranged "from a matter of days to SIX months" (page 5) DIsmIssmg the gnevance, VIce-Chair Bnggs wrote In Re Burdltt, the Employer argued that It knew shortly after the gnevor's request for converSIOn that there was no ongomg need for the work because all of the work of the bargammg umt was gomg to be transferred to a successful bIdder m the broader publIc serVIce It was suggested that where pnvatIzatIOn IS a forgone conclusIOn, there IS no contmumg need for the work. I dId not agree wIth that submIssIOn as It related to the facts m the Re Burdltt matter Indeed, I found that the fact that pnvatIzatIOn would occur was not, m and of Itself, detennmatIve However, the facts of tlus polIcy gnevance are substantIally dIfferent The Employer knew and znformed the unclassified employees vlrtually from the begznnzng of thelr employment that the work would be tran~rerred to the przvate sector Certamly the employees knew no later than September of 1997, that theIr tune wIth the MmIstry was lImIted. Indeed, many would have had that knowledge wItlun months of the begmnmg of theIr employment Sundar to the fact sItuatIOn m Re Burdltt, the Employer's estImate of when the work would be transferred proved to be optImIstIc However, unlike Ms BurdItt, none of the gnevors had been unclassIfied for two or three years at the pomt when the fact that the work was about to be pnvatIzed was first mentIOned. (pages 11, emphasIs added) 12 In the ItahcIzed passage, Ms Bnggs finds that employees were told that theIr work "would be transferred" to a crown corporatIOn, not that a transfer was possible She appears to have treated as a forgone conclusIOn the passage of enabhng legIslatIOn creatIng the new serVIce provIder Counsel for the employer urges me to conclude that the converSIOn of employees after the Issuance of a CIM would be InCOnsIstent WIth the "reasonable efforts" prOVISIOns found In AppendIx 18 of the collectIve agreement AccordIng to artIcle 5 1 of that AppendIx, before a request for proposals (RFP) IS Issued, the employees affected by It must be gIven "the opportumty to elect" whether or not they wIll be Included In It ArtIcle 5 2 states that an RFP must contaIn "the mandatory reqUIrement" that bIdders offer Jobs to all employees Included In the RFP on terms and condItIons set out In the artIcle Counsel notes that tune and money IS spent prepanng bIds based upon the number of employees hsted In the RFP In short, counsel submIts that artIcle 31 15 1 does not reqUIre the converSIOn of an employee who reaches the two-year mark after the Issuance of an RFP, or after the Issuance of a CIM, whIch IS the functIOnal eqUIvalent of an RFP RespondIng to tlllS argument, umon counsel notes that AppendIx 18 exphcItly states that transfers governed by It are not covered by certaIn prOVISIOns In the collectIve agreement, but tlllS AppendIx makes no mentIOn of converSIOn ContendIng the employer's InterpretatIOn of the collectIve agreement negates entItlements under artIcle 31 15 1, counsel for the umon suggested there are two other InterpretatIve paths open whIch would allow tlllS artIcle and AppendIx 18 "to hve together" The umon's pnmary argument IS that the employer should Issue an RFP IndIcatIng the maXImum number of employees who could be ehgible for converSIOn before the 13 transfer date and that management should allow employees converted before tlllS date to elect whether to be mcluded m the RFP In the alternatIve, counsel suggested AppendIx 18 could be mterpreted as not applymg to employees converted after the Issuance of an RFP Accordmg to tlllS argument, such employees would have the surplus nghts set out m the mam body of the collectIve agreement III I begm my analysIs wIth the wordmg of artIcle 31 15 1 1 It says "where the mlnzstry has determzned that there IS a contmumg need for that work to be performed on a full-tIme basIs" (emphasIs added) What IS meant by the ItahcIzed reference to a detennmatIOn by the employer? Exactly what IS It that management IS pennItted to detennme? The most ObVIOUS answer IS that a mmIstry IS free eIther to decIde to stop domg the work prevIOusly done by unclassIfied employees or to decIde to carry on wIth the work but on some basIs other than full-tnne These types of detennmatIOns about contmumg need are the sort of decIsIOns tYPIcally reserved to management under a collectIve agreement What the employer actually has detennmed IS a questIOn of fact to be answered by an arbItrator weIglllng all of the relevant CIrcumstances The most Important lesson to emerge from the cases revIewed above IS that substance prevails over form m the conduct of such an mqUIry As VIce- Chair DIssanayake noted m Lynch-Burrus, what matters IS the "objectIve facts" not whether the employer has fonnally acknowledged the eXIstence of a contmumg need. The same message IS nnphcIt m VIce-Chair Bnggs' detennmatIOn m Burdltt that the employment of the gnevor for almost a year 14 after she had reached the two-year mark was "sufficIent" to estabhsh a contmumg need" notwIthstandmg the employer's contentIOn to the contrary LikewIse, VIce-Chair Venty mMlstry stated the employer's detennmatIOn about contmumg need must be made wIth "a show of reason related to the facts " Employer counsel argued an arbItrator revIewmg a mmIstry's detennmatIOn about contmumg need should not apply a standard of correctness but rather a more deferentIal one In my VIew, tlllS argument mIsses the pomt The task of an arbItrator applymg artIcle 31 15 1 lIS not to reVIew a detennmatIOn made by the employer The task IS to decIde what detennmatIOn the employer has made ThIS arbItral decIsIOn must be made by weIglllng the facts, not by rubber stampmg a mmIstry' s fonnal pronouncements, as has been repeatedly stated m ear her decIsIOns of tlllS board. The awards revIewed above also demonstrate that the perfonnance of work for a substantIal penod IS an Important factor m decIdmg what a mmIstry has detennmed. In Lynch-Burrus, Mr DIssanayake stated that the extended perfonnance of work created a "rebuttable presumptIOn" that the employer had detennmed there was a contmumg need for the work to be done The presumptIOn was rebutted m that case because, when the gnevor apphed for the converSIOn of her posItIOn, the employer embarked upon a reVIew to detennme whether her serVIces were redundant and eventually decIded they were In other words, there was never a decIsIOn to contmue employmg her for any defined penod. The scenano was dIfferent m Burdltt, where the gnevor sought converSIOn at a tune when the employer's plans called for her to work untIl her Job was pnvatIzed eleven months m the 15 future, and Ms Bnggs concluded her contmued employment for tlus long demonstrated that there was a contmumg need for her servIces The decIsIOn m Mlstry shows that utIlIzmg a person's serVIces for a penod as short as five weeks does not amount to a detennmatIOn of contmumg need. The case law contams mIxed messages about the relevance of what management tells employees about the secunty of theIr employment In Mlnzstry of Fznance, VIce-Chair Bnggs denIed a claim for converSIOn by employees who had passed the two-year mark by between four and SIX months, because they had been told by the employer, soon after bemg lured, that that theIr work would be leavmg the publIc servIce ThIS rulIng appears to stand for the proposItIOn that a claim for converSIOn can be defeated by management mfonnmg employees that theIr Jobs m the publIc serVIce wIll end m the not too dIstant future A logIcal corollary of tlus proposItIOn IS that an employee bemg told by management that her Job IS secure would support a claim for converSIOn Yet tlus corollary appears not to have been applIed m Lynch-Burrus, where converSIOn was denIed despIte the gnevor workmg for tlurteen months after havmg been told by her manager that "her posItIOn was safe" In the case at hand, the CIM Issued m December of 2001 mdIcated that the mmIstry would contmue to provIde dnver exammatIOn serVIces untIl sometIme between August and October of 2002 A sIgnIficant number of dnver exammers reached the two-year mark before the gnevance was filed on January 25, 2002 As of that date, the employer planned to contmue provIdmg dnver eXaInmatIOn servIces for a penod of between SIX months (endmg m early August) to nIne months (endmg m late October) 16 SIX months or more IS longer than the comparable penod In Mlnzstry of Fznance whIch was up to SIX months There IS another sIgmficant dIfference between that case and tlllS one There assessors were told theIr work "would be transferred" to another servIce provIder In the near future Here dnver examIners were told a transfer was "possible" but contIngent first on findIng quahfied bIdders and then on findIng a successful bIdder SIX months or more IS a substantIal length of tune relatIve to the penod of twenty-four months that unclassIfied employees always had to Wait under the 1999-2001 agreement before beIng ehgIble for converSIOn The mInIstry's plans for the contInued employment of unclassIfied employees lead me to conclude It had detennIned there was a contInuIng need for the servIces of dnver examIners I have not overlooked AppendIx 18 In comIng to tlllS conclusIOn The cntena In artIcle 31 15 1 1 for the converSIOn of a posItIOn have remaIned unchanged for at least a decade These cntena predate AppendIx 18 and ItS predecessor, AppendIx 9 NeIther of these appendIces makes any mentIOn of converSIOn ThIS sIlence probably IndIcates that negotIators dId not turn theIr mInds to the InteractIOn of these appendIces wIth artIcle 31 15 1 1 Whatever the explanatIOn for sIlence on tlllS pOInt, neIther appendIx exphcItly hmIts the nght to converSIOn In the absence of any clear abndgement of tlllS pre- eXIstIng nght, I conclude It was not dunImshed by addIng AppendIx 9 and AppendIx 18 to the collectIve agreement It remaInS to be detennIned whether dnver examIners converted after the Issuance of the CIM have surplus nghts under the two appendIces or under the maIn body of the collectIve agreement 17 Employer counsel submItted my ruhng should be hmIted to the facts eXIstmg when the gnevance was filed m January, whereas counsel for the umon urged me to rule on the facts that eXIsted when the eVIdence was heard on September 17 In my VIew, to do as suggested by the employer would be to adopt an unduly narrow constructIOn of a pohcy gnevance like the mstant one ThIS approach would reqUIre the umon to file a senes of gnevances m order to resolve all aspects of a smgle dIspute as It developed over tune That would not serve any legItImate purpose How does artIcle 31 15 1 apply to developments after the umon gneved? There IS a remarkable sunllanty between the sItuatIOn m January of 2002 and the one that prevailed both m June, when the revIsed CIM was Issued, and m September, when eVIdence was heard. Upon revIsmg the CIM, the mmIstry told employees the transfer could occur "as early as the end of 2002", mdIcatmg unclassIfied dnver exammers would contmue to be employed for a mmunum of SIX months At the heanng on September 17, counsel for mmIstry stated the transfer of servIces was expected to occur at the end of March of2003, SIX and one-half months m the future In short, the mmIstry m January, June and September of 2002 planned to provIde serVIces for at least SIX months These plans amounted to a detennmatIOn of contmumg need. 18 The gnevance IS allowed. The employer IS dIrected to convert all dnver exammers who completed two years of servIce before September 17, 2002 I rem am seIzed to address any Issues ansmg m the llnplementatlOn of tlllS award. Dated at Toronto tlllS 24th day of October 2002 ~ ,,/" /1 !./~ RIchard Brown VIce-Chair