HomeMy WebLinkAbout2002-1479.Policy Grievance and Lysiak.03-02-11 Decision
Crown Employees Commission de ~~
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GSB#1479/02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
ProfessIOnal EngIneers, Government of Ontano
(PolIcy Gnevance & LysIak) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of MumcIpal MfaIrs and HOUSIng) Employer
BEFORE Manlyn A. Nairn Vice-Chair
FOR THE UNION Larry RobbIns
Labour Consultant
FOR THE EMPLOYER DavId Strang
Counsel
Management Board Secretanat
HEARING January 28 2003
2
AWARD
ThIS award deals wIth a polIcy gnevance filed on July 15 2002 and an IndIVIdual gnevance
brought by the ProfessIOnal EngIneers, Government of Ontano ("PEGO") on behalf of Mr LysIak
dated July 26 2002 The gnevances are In respect of IndIVIduals employed by the Crown at the
Mimstry of MumcIpal Affairs and HOUSIng (the "employer") Three members of PEGO were affected
and remedIes are beIng sought on behalf of two of those IndIVIduals Mr LysIak and Mr Levesque
are both engIneers responsible for the desIgn, constructIOn, and maIntenance of mechamcal and
electncal systems for the former Ontano HOUSIng CorporatIOn. Both IndIVIduals were hIred In 1987
The gnevances anse from the employer's decIsIOn to dIvest Itself of socIal hOUSIng functIOns
and to transfer those functIOns to mumcIpalItIes and regIOnal local governments across Ontano They
allege that the employer faIled to comply wIth ItS oblIgatIOns to make reasonable efforts In respect of
contInuIng employment, In partIcular that the employer faIled to comply wIth the reqUIrements of
paragraph 5(1)(a) of AppendIx "A" of the collectIve agreement. PEGO asserts that these employees
ought to have been offered Jobs wIth the new employer at, among other thIngs, no less than 85% of
theIr then salary and that the employer faIled In ItS oblIgatIOn to ensure that such an offer was made
PEGO argues as a SubsIdIary Issue that the employer faIled to meet ItS "reasonable efforts" oblIgatIOn
In other respects, but thIS award, by the agreement of the partIes, IS lImIted to the argument on ItS
pnmary posItIOn.
It IS the posItIOn of the employer that paragraph 5(1)(a) does not apply In the CIrcumstances as It
contaIns a deemIng provIsIOn only In those CIrcumstances where the transfer IS by a request for
proposal ("RFP') or tender That dId not occur here The employer acknowledges that It IS caught by
paragraph 1 of AppendIx "A" but asserts that If the matter proceeds, ItS posItIOn wIll be that It has met
that oblIgatIOn In the case of these employees
The relevant provIsIOns of the collectIve agreement provIde
APPENDIX A. EMPLOYMENT STABILITY
The Government of Ontario is aware that its restructuring initiatives over the next three years could have a
significant effect on employees, some of whom have served for a lengthy period. Accordingly the
Employer undertakes the following:
3
1 The Employer will make reasonable efforts to ensure that, where there is a disposition or any
other transfer of bargaining unit functions or jobs to the private or broader public sector,
employees in the bargaining unit are offered positions with the new employer on tenus and
conditions that are as close as possible to the then existing tenus and conditions of employment of
the employees in the bargaining unit, and, where less than the full complement of employees is
offered positions, to ensure that offers are made on the basis of seniority
2 When an employee has been transferred to a new employer he/she will be deemed to have
resigned and no other provisions of the collective agreement will apply except for Article 45
(Tennination Payments)
3 The employee must elect whether or not to accept employment with the new Employer within
five (5) working days of receiving an offer In default of election, the employee shall be deemed
to have accepted the offer
4 Where an operation or part thereof is being disposed of, and the Employer has detennined that an
opportunity for tendering or bidding is warranted, employees shall be given the opportunity to
submit a tender or bid on the same basis as others.
5. The obligations of the employer concerning reasonable efforts and employee bidding set out
in paragraphs 1 through 4 shall be deemed to have been satisfied provided that:
(emphasis in original)
(1) (a) In respect of the transfers of bargaining unit jobs or functions as a
result of transfers listed in schedule "A" to this memorandum the Employer shall include
in all the Requests for Proposal (RFP) or tenders, relating to those transfers a mandatory
requirement that proponents must connuit in their proposals to make job offers to all of
the classified PEGO employees who will be declared surplus as a result of the
disposition or transfer of their jobs under the RFP or tender Suchjob offers shall be at a
salary of at least 85% of the respective employee's salary at the time of the RFP or tender
and recognize the service in the Ontario Public Service of each employee for the
purposes of qualification for vacation, benefits entitlements and other tenus of
employment except for pension to the extent that they are provided in the proponent's
workplace Job offers shall not include any probationary period. Proposals that do not
satisfy the above mandatory requirement will be disqualified. Upon the inclusion of the
foresaid terms in an RFP or tender in respect of a project listed in schedule "A" the
Employer will be deemed to have satisfied all the requirements of this Appendix A in
relation to the transfer of bargaining unit jobs or functions under the RFP or tender
(b) The Employer shall detennine the PEGO employees whose work will be
directly transferred by the RFP or tender prior to the release of an RFP or tender and this
detennination shall be final for purposes of the requirement to require job offers in
subsection (1)
(c) The parties may add transfers to schedule 'A' by mutual agreement only
(2) In respect of the disposition or transfer of bargaining unit jobs or functions not listed in
schedule "A" the Employer's obligations under Appendix A will be satisfied by the Employer
offering the prospective new employer an incentive, equal to the amount that would be payable as
enllanced severance pay to a classified employee in order to either secure or improve a job offer
for that employee.
(3) Classified employees declared smplus as a result of the disposition or transfer of
bargaining unit jobs or functions to the private or broader public sector will have the right to turn
down any job offer under Appendix A and exercise their rights prescribed by paragraphs "6" to
"9" of Appendix A and Article 14 excluding 14 5 of the Collective Agreement.
4
(4)[sic] The employer shall include in the RFP or tender the statement that employees may bid on the
same basis as others. The forgoing [sic] will be deemed to satisfy all the Employer's obligations in respect
of employee bidding under Appendix A.
Schedule A
Labour - Material Testing Laboratory
Municipal Affairs and Housing - Social Housing
The heanng proceeded on the basIs of agreed facts There IS no dIspute that Schedule A to thIS
AppendIx refers to and Includes MumcIpal Affairs and HOUSIng, SocIal HOUSIng. There IS also no
dIspute that there has been a dISposItIOn or transfer of bargaInIng umt functIOns or Jobs, so as to tngger
the operatIOn of AppendIx "A" A consIderable number of employees represented by other umons
were affected by the transfer
The umon was advIsed on June 5 2002 that the three affected employees would receIve a formal
notIce of lay-off on June 27 2002 None of these employees were offered a posItIOn at a new
employer on any terms Mr Levesque took hIS payment In lIeu optIOn and Mr LysIak worked through
hIS notIce penod hopIng to be redeployed. To date, those efforts have been unsuccessful
There was no eVIdence of the partIes' negotIatIOns The partIes dId refer to earlIer collectIve
agreements to show the IntroductIOn and development of AppendIx "A" The provIsIOns at Issue are
essentIally the same as those found In the predecessor collectIve agreement (1999-2000) The 1996-
1998 collectIve agreement contaIned only paragraphs 1 through 4 However negotIatIOns toward the
end of that collectIve agreement In early 1998 resulted In the addItIOn of paragraph 5 There IS no
dIspute that paragraph 5(1) provIdes better secunty to those employees comIng wIthIn those areas
IdentIfied In Schedule A to the AppendIx. The lIstIngs In Schedule A have become progressIvely
shorter over each collectIve agreement. There IS also no dIspute that paragraph 5 IS exclusIve to the
PEGO collectIve agreement and IS not found In other OPS collectIve agreements where the oblIgatIOns
of the employer essentIally reflect the language In paragraph 1 of AppendIx "A"
On March 6 2001 a representatIve of Management Board Secretanat ("MBS") wrote to the
PresIdent of PEGO notIng that the transfer of socIal hOUSIng was lIsted on Schedule A of AppendIx
"A" to the collectIve agreement. That letter goes on to state
5
Schedule "A" describes transfers through requests for proposals or tenders and is not compatible with
negotiated transfers such as the devolution of social housing. Weare writing to formally request your
agreement to remove this transfer from schedule "A" and deal with it under paragraph 5 (2) of Appendix
"A" instead.
The umon responded, adVISIng that It would not agree to remove the transfer of socIal hOUSIng
from Schedule A. That letter notes that It was Important for PEGO to "have as many of the subJect
areas for dIvestment lIsted In Schedule "A" as possIble, as the Reasonable Efforts protectIOn In
paragraph 5(1) IS supenor to that In 5(2)" The umon recommended that the matter be dealt wIth at the
bargaInIng table There IS no eVIdence of any further dIscussIOns The collectIve agreement In Issue
was subsequently sIgned on October 29 2001 wIthout any amendment to the language of paragraphs
1-5
The dIvestment of socIal hOUSIng functIOns dId not take place pursuant to a request for proposal
or tender process The transfer occurred by operatIOn of law pursuant to the provIsIOns of the Social
Housing Reform Act, 2000 SO 2000 c 27 The BIll passed thIrd readIng on December 12, 2000
pnor to the letter beIng sent from MBS to PEGO That statute was enacted specIfically to deal wIth the
magmtude of Issues ansIng from the complex transfer from the Ontano HOUSIng CorporatIOn, the
Crown, (includIng as represented by the Mimster of MumcIpal Affairs and the Mimster of HOUSIng) to
the vanous local authontIes, of the real estate and other assets and the lIabIlItIes and other
responsIbIlItIes assocIated wIth provIdIng and maIntaInIng socIal hOUSIng. SectIOn 34(1) of the
legIslatIOn provIdes authonty to the LIeutenant Governor In CouncIl to make "transfer orders"
"transfernng employees of a local hOUSIng authonty" to the new employer That provIsIOn does not
provIde authonty to deal wIth Mimstry staff who may be affected. It was suggested by the employer In
argument that employees of Ontano HOUSIng CorporatIOn were protected by the statute In that they
were transferred to the new employers, whereas Mimstry staff were not. However no eVIdence of any
regulatIOns or transfer orders made pursuant to thIS sectIOn was filed. SectIOn 52 of the statute
provIdes detaIled provIsIOns that take effect In respect of transferred employees
The umon argues that paragraph 5(1)(a) IS tnggered by the transfer of bargaInIng umt functIOns
or Jobs lIsted In Schedule A. It argues that If restncted to sItuatIOns where there IS an RFP/tender
process the entItlements under paragraph 5 are meamngless, as the transfer of a Schedule A entIty
6
would then fall under neIther paragraphs 5(1) nor 5(2) It pOInts out that paragraph 5 does not say that
It applIes only If there IS an RFP/tender The umon argues that an InterpretatIOn that would render the
provIsIOn meamngless at the complete dIscretIOn of the employer (should It merely chose not to hold a
competItIve process) would be unreasonable and that the better VIew IS one that Interprets the
provIsIOn as a mandatory reqUIrement whIch merely assumes that the employer wIll use an RFP/tender
process to bnng It about. If the employer VIew of paragraph 5(1) IS correct, the umon argues, there
would be another provIsIOn dealIng wIth the dIrect transfer of a Schedule A entIty AlternatIvely there
would be an InclUSIOn In paragraph 5(2) to cover those sItuatIOns where the transfer was not caught by
Schedule A and where the transfer was not by way of RFP/tender FInally the umon argues,
paragraphs 5(1) and (2) were Intended to "cover the waterfront" so that the partIes would not have to
fall back on paragraph 1 to aVOId havIng to reVIew In detaIl any efforts made by the employer
The employer argues that paragraph 5(1)(a) IS specIfic to sItuatIOns where there IS an RFP/tender
process and IS consIstent WIth the need for clanty In the RFP or tender document. PotentIal bIdders
need be aware of the reqUIrements of the tender and If the tender document or RFP falls to clearly
dIsclose the level of potentIal oblIgatIOn on the bIdder then dIfficultIes may ensue between the
employer and the bIdders That, asserts the employer dnves the need for the deemIng provISIOn. It
argues that In paragraph 5(1)(a) the umon got a good offer of contInued employment on a mandatory
basIs and the employer got certaInty for purposes of draftIng the RFP/tender However It argues that
the notIOn of makIng RFPs/tenders mandatory IS not found In the language nor can It be assumed that
thIS specIfic oblIgatIOn under paragraph 5(1)(a) anses where there has been no RFP/tender Just
because the entIty transferred IS found on Schedule A.
DECISION
The task IS to determIne the partIes' IntentIOn by InterpretIng the language of AppendIx "A"
Paragraph 1 creates an oblIgatIOn on the employer to make reasonable efforts In the described
CIrcumstances If paragraph 5 were to provIde a complete code regardIng the employer's reasonable
efforts oblIgatIOns, paragraph 1 would arguably be redundant. It IS an accepted pnncIple of
InterpretatIOn that all words have meamng. More to the pOInt, paragraph 5 on ItS own, does not create
any oblIgatIOn on the part of the employer to make reasonable efforts It IdentIfies what constItutes
7
reasonable efforts In partIcular cIrcumstances Its opemng words refer to the basIc oblIgatIOn created
by paragraph 1
Paragraph 1 eXIsted In the predecessor collectIve agreement and created the oblIgatIOn on the
employer to make reasonable efforts In the event of a dISposItIOn or other transfer of bargaInIng umt
functIOns or Jobs to the pnvate or broader publIc sector As both partIes noted, that type of language
has been found to create a substantIal onus on the employer (See for example, Crown in Right of
Ontario (MBS) v OPSEU (Union Grievance) decIsIOn of Vice-Chair Petryshen, May 19 1998 GSB#
1196/97 or Crown in Right of Ontario v OPSEU (Union Grievance) decIsIOn of Vice-Chair Roberts,
May 26 1998 GSB# 0559/97)
The umon argues that paragraph 5(1)(a) supports a conclusIOn that the partIes assumed that all
transfers of functIOns or Jobs lIsted In Schedule A would occur as a result of an RFP or tender (the
reference to the words "In all the Requests for Proposal or tenders") However the umon dId not go so
far as to say that the employer was reqUIred by thIS language to use a competItIve process Nor IS It the
case that the partIes can be said to have understood that all transfers would occur by way of RFP or
tender gIven the wordIng of paragraph 3 It uses the conJunctIve "and" to refer to a decIsIOn by the
employer to create an opportumty to tender or bId In respect of a dISposItIOn. That language reqUIres
two thIngs One, that there be a dISposItIOn and two that the employer determIne that a tender
opportumty IS warranted. It IS necessanly ImplIcIt In that language that there may be a dISposItIOn
wIthout an RFP/tender process
The umon's argument that the partIes assumed all dISposItIOns would go by way of
RFP/transfer and that the mandatory oblIgatIOn flows even If that assumptIOn proves to be Incorrect,
rests entIrely on the use of the word "all" In the first sentence of paragraph 5(1)(a) Had the phrase
read "In any Request for Proposal" It would leave open the ImplIcIt conclusIOn that not all transfers
lIsted In Schedule A would necessanly be dealt wIth by RFP/tender Is the use of that word sufficIent
to adopt the umon's argument? I am not so persuaded. FIrstly It IS not the only reasonable readIng of
that phrase The reference to "all" may also be read as "all" the RFPs or tenders that may anse
relatIng to a transfer of a Schedule A lIstIng. Secondly and perhaps more InstructIve, on a revIew of
paragraphs 5(1)(a) and 5(1)(b) there are also two references to "an RFP or tender" In CIrcumstances
where one would, on the umon's argument, expect the reference to be to "the RFP or tender"
8
In addItIOn It would be Inappropnate to read paragraph 5 In IsolatIOn from the rest of AppendIx
"A" As noted, It IS paragraph 1 not paragraph 5 whIch creates the oblIgatIOn. The hIghlIghted
preamble to paragraph 5 states that the employer's oblIgatIOn to make reasonable efforts IS deemed to
have been satIsfied In certaIn cIrcumstances However paragraph 5 contaInS not only deemIng
provIsIOns Paragraph 5(3) confirms that employees may turn down an offer from a new employer and
exerCIse other nghts under AppendIx A and most of ArtIcle 14 of the collectIve agreement. ThIS flows
wIth paragraph 3 of AppendIx "A" Paragraph 5(3) comes Into play when the employee chooses to
remaIn wIthIn the OPS and exerCIse hIs/her nghts as an employee subJect to lay-off It bears lIttle on
whether the employer has satIsfied ItS reasonable efforts oblIgatIOn, whIch contemplates a transfer to a
new employer It IS also Independent of any Schedule A or RFP/tender Issue Paragraph 5(4) IS
dIrectly referable to paragraph 4 of AppendIx "A" If the employer Includes a statement on an RFP or
tender that employees may bId on the same basIs as others, ItS reasonable efforts oblIgatIOn under
paragraph 4 IS deemed to have been satIsfied. However as noted earlIer that presupposes that the
employer has decIded that an RFP/tender process IS warranted.
An InterpretatIOn that the mandatory oblIgatIOn In paragraph 5(1)(a) only anses In
CIrcumstances of an RFP/tender process does not render the paragraph meamngless It provIdes extra
value to the umon In CIrcumstances where there IS an RFP/tender process In the absence of the
RFP/tender process, the employer remaInS subJect to the oblIgatIOn In paragraph 1 whIch, the umon
acknowledges, has gIven nse to a substantIal burden on the employer to make reasonable efforts to
ensure that where there IS a dISposItIOn, employees are offered posItIOns WIth the new employer
Thus, havIng regard to the clear language of AppendIx "A" I find that the reqUIrements of
paragraph 5(1)(a) do not anse In CIrcumstances where the transfer occurs by means other than an RFP
or tender
However even If one were to conclude that paragraph 5(1)(a) IS ambIguous then the avaIlable
extnnsIC eVIdence supports the employer's InterpretatIOn of AppendIx "A" The umon argues that the
employer recogmzed that It had a problem when It wrote the March, 2001 letter However that letter IS
more consIstent WIth a conclusIOn that MBS belIeved that paragraph 5(1)(a) dId not apply In the
CIrcumstances and that It was seekIng to otherwIse lImIt ItS oblIgatIOn to that spelled out In paragraph
5(2) The oblIgatIOn In paragraph 5(2) IS potentIally less onerous and certaInly clearer than the
undefined oblIgatIOn set out In paragraph 1 of AppendIx "A" PEGO's response dId not take Issue
9
wIth the proposItIOn that "Schedule A descnbes transfers through RFPs/tenders" and the language of
the collectIve agreement contInued In the same form after thIS exchange
Thus, In the CIrcumstances gIVIng nse to these gnevances, where the transfer of the socIal
hOUSIng functIOns or Jobs dId not occur pursuant to an RFP or tender process, I find that the employer
was not reqUIred to ensure that the three IndIVIduals affected were offered a posItIOn WIth the new
employer on the terms set out In paragraph 5(1)(a) of AppendIx "A" to the collectIve agreement. The
umon's argument on that pOInt falls
The employer IS however by ItS own admISSIOn, stIll subJect to the reasonable efforts
oblIgatIOn set out In paragraph 1 of AppendIx "A" These matters are hereby remItted to the partIes to
determIne whether or not there are any remaInIng Issues In dIspute The umon IS to advIse the
RegIstrar should these matters reqUIre reschedulIng.
Dated at Toronto Ontano thIS 11th day of February 2003