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HomeMy WebLinkAbout2003-0337.Union Grievance.04-03-08 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0337 UNION# 2003-0720-0004 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 III RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER John SmIth Semor Counsel Management Board Secretanat HEARING June 11 2003 2 DeCISIon In a gnevance dated May 1 2003 the Umon claims that "the revIsed schedules to the transfer agreement between the Crown and St. Joseph's Care Group does not comply wIth the CollectIve Agreement IncludIng AppendIx 18" The gnevance concerns the transfer of the Lakehead PsychIatnc HospItal ("LPH") to the St. Joseph's Care Group ("St. Joseph's") ThIS decIsIOn addresses only the Employer's prelImInary ObjectIOn that the gnevance IS untImely and therefore should be dIsmIssed. Counsel made theIr submIssIOns on the basIs of exhIbIts entered on consent and an agreed factual context. St. Joseph's, the reCeIVIng hospItal, appeared at the heanng wIth counsel as an observer and reserved the nght to argue the Issue of standIng should the gnevance proceed to a heanng on ItS ments There was no challenge to my jUnSdIctIOn to hear and determIne the Employer's prelImInary ObjectIOn. The oblIgatIOns of the Employer when It transfers bargaInIng umt functIOns or jobs to the pnvate or broader publIc sectors are set out In AppendIx 9 and, more partIcularly In AppendIx 18 of the CollectIve Agreement. All nghts and oblIgatIOns contaIned In paragraph 1 the reasonable efforts provIsIOn, and paragraphs 4 and 5 of AppendIx 9 are governed by the provIsIOns In AppendIx 18 The Employer's oblIgatIOn IS to make reasonable efforts to obtaIn job offers for affected employees from the new employer wIth terms and condItIOns of employment whIch are as close as possIble to the then eXIstIng terms and condItIOns of employment of the employees In the Ontano PublIc ServIce ("OPS") bargaInIng umt. AppendIx 18 makes reference to four types of transfers, one of them beIng a negotIated transfer The transfer of the LPH to St. Joseph's IS a negotIated transfer whIch IS subject to 3 ArtIcle 60 of AppendIx 18 For our purposes It IS necessary to refer only to SectIOns 6 1 1 and 6 2 1 of ArtIcle 6 6.0 Schedule B Transfers - Negotiated Transfer 6 1 1 For all Schedule B transfers, excludmg those covered by ArtIcle 63 the employer wIll propose m negotIatIOns WIth the receIvmg employer that Job offers shall be at a salary of at least 100% of the respectIve employee's weekly salary at the tIme of the transfer and recogmze the servIce and semonty m the Ontano PublIc ServIce (OPS) of each employee for the purpose of qualIficatIOn for vacatIOn, benefits (except pensIOn) layoff and Job competItIOn, severance and termmatIOn payments to the extent that they are provIded m the proponent's workplace or If none, the OPS Any pay- ments made under ArtIcle 53 or 78 of the CollectIve Agreement shall be set off agamst any calculatIOn of severance pay under a collectIve agreement or term of employment wIth the receIvmg employer m respect of OPS servIce Such payments under artIcles 53 and 78 may be set off agamst severance payments under the Employment Standards Act 2000 m accordance wIth that Act. 621 In the event that a receIvmg employer does not fully agree to the request m m artIcle 6 1 1 mcludmg the matter of a probatIOnary penod, the employer may offer the receIvmg employer a financIal mcentIve up to the amount that would have been payable as enhanced severance pay (calculated as provIded m paragraph 4 of AppendIx 9) to each employee affected by the transfer that the employer determmes wIll be declared surplus, m order to secure or Improve a J ob offer to the employee eqUIvalent to a Job offer as descnbed m ArtIcle 6 1 1 above or to ensure where Job offers are receIved from the receIvmg employer for less than the full complement of employees IdentIfied by the employer that the receIvmg employer offer employees Jobs on the basIs of semonty The partIes agree m no case wIll the employer be reqUIred to pay a financIal mcentIve m excess of the maXImum of enhanced severance for the affected employees The general oblIgatIOn on the Employer to make reasonable efforts to obtamJob offers and terms and condItIOns of employment whIch mIrror those of OPS employees are contamed m ArtIcle 6 for a negotIated transfer ThIS general oblIgatIOn must be consIdered m lIght of AppendIx 9 AppendIx 18 generally and the case law dealIng wIth reasonable efforts Issues SectIOn 6 1 1 refers specIfically to the recogmtIOn of OPS servIce and semonty m relatIOn to layoff and severance SectIOn 6 2 1 provIdes that the Employer may offer the receIvmg employer a financIal mcentIve based on an enhanced severance calculatIOn should the receIvmg employer not fully agree to mIrror the OPS terms and condItIOns of employment. ThIS 4 provIsIOn makes It clear that the InCentIve payment IS dIrectly lInked to the Employer's efforts to obtaIn the Items referred to In sectIOn 6 1 1 AppendIx 18 makes reference to two dIspute resolutIOn processes CertaIn dIsputes must be determIned under ArtIcle 80 and other dIsputes that anse concermng AppendIx 18 proceed under ArtIcle 4.2 For dIsputes whIch need not be determIned pursuant to ArtIcle 8 0 the tIme lImIt for filIng a Umon gnevance IS contaIned In ArtIcle 22 of the CollectIve Agreement. SectIOn 22 13 1 of that ArtIcle provIdes that "the Umon shall be entItled to file a gnevance at the second stage of the gnevance procedure provIded It does so wIthIn thIrty (30) days folloWIng the occurrence or ongInatIOn of the CIrcumstances gIVIng nse to the gnevance" As ArtIcle 8 0 makes clear dIsputes about ArtIcle 6 0 of AppendIx 18 are governed by the tIme lImIt In sectIOn 8 3 SectIOns 8 1 and 8 3 read as follows 8.0 Agreement and RFP Review 8 1 All dIsputes ansIng out of ArtIcle 5 0 60 or 6C 0 must be determIned pursuant to ArtIcle 8 0 Any other gnevances under thIS agreement wIll go through the dIspute resolutIOn process In ArtIcle 4.2 8 3 When the employer sIgns a transfer agreement wIth a hospItal, mumcIpalIty or other employer In respect to transfers under Schedule B the employer agrees that OPSEU wIll be provIded wIth a copy of the transfer agreement that the employer has sIgned wIth the mumcIpalIty hospItal or other reCeIVIng employer If OPSEU belIeves that the transfer agreement IS not In complIance wIth ArtIcle 6 0 OPSEU may refer the matter to medIatIOn/arbItratIOn wIthIn a seven (7) calendar day tIme penod and the matter must be resolved wIthIn that tIme penod. The Memorandum of Agreement In whIch the Crown agreed to transfer the governance and management of the LPH to St. Joseph's IS dated February 8 2000 ("the Transfer Agreement") Attached to the Transfer Agreement IS a Schedule B dealIng wIth benefits and a Schedule C dealIng wIth workIng condItIOns The Transfer Agreement was provIded to OPSEU 5 wIthIn a week of February 8 2000 OPSEU dId not raise an Issue about the Transfer Agreement wIthIn seven calendar days of havIng receIved It. The transfer of the LPH to St. Joseph's occurred on June 23 2003 approxImately three years and four months after the executIOn of the Transfer Agreement. The LPH notIfied Its staff of the transfer date In a wntten commumcatIOn dIstnbuted on March 21 2003 In 2002, after the Crown had entered Into the Transfer Agreement, the Crown and OPSEU negotIated a new CollectIve Agreement covenng the penod from January 1 2002 untIl December 31 2004 It therefore became necessary for the Employer and St. Joseph's to update the terms of the schedules attached to the Transfer Agreement to reflect the relevant terms of the current CollectIve Agreement between OPSEU and the Crown. OPSEU filed a gnevance dated January 7 2003 whIch referred to the Employer's faIlure to update the Transfer Agreement. The Crown and St. Joseph's dId reVIse the Transfer Agreement by updatIng the terms and condItIOns of employment contaIned In the schedules and OPSEU was provIded wIth the final verSIOn of these schedules on Apnl 23 2003 On Apnl 23 2003 OPSEU and St. Joseph's entered Into a voluntary recogmtIOn agreement covenng certaIn employees employed at the LPH sIte ThIS agreement was ratIfied on May 6 2003 On or about Apnl 22 or 23 2003 OPSEU was advIsed that the Crown dId not pay the financIal InCentIve to St. Joseph's and that If It receIved the InCentIve payment St. Joseph's would share It accordIngly It appears that the first tIme OPSEU raised a concern about the substance of the Transfer Agreement was In two letters dated March 27 2003 from the PresIdent of OPSEU to the Deputy Mimster of Management Board Secretanat. In response to a request for partIculars, counsel for 6 the Umon provIded partIculars of the May 1 2003 gnevance In a letter dated May 22,2003 At the heanng, counsel for the Umon IndIcated what Issues were stIll of concern to the Umon and he stated that they related to the faIlure of the Employer to make reasonable efforts to mIrror the OPS terms and condItIOns In two areas In partIcular he referred to the absence In the Transfer Agreement of a penSIOn bndgIng provIsIOn and the absence of certaIn terms protectIng employee's nghts upon layoff or termInatIOn. For convemence, I wIll refer to the dIspute about these absent terms as the SectIOn 6 1 1 Issues The Umon belIeves that the absence of the layoff and termInatIOn terms are Important sInce very few of the programs offered at LPH wIll remaIn at St. Joseph's, thereby potentIally affectIng the Job secunty of the transferred employees Counsel submItted that the faIlure of the Employer to make reasonable efforts to secure these provIsIOns for the transferred employees constItutes a contraventIOn of ArtIcle 6 0 of AppendIx 18 Counsel also argued that the faIlure of the Employer to provIde St. Joseph's wIth the financIal InCentIve IS a vIOlatIOn of SectIOn 6.2 1 of AppendIx 18 If successful In proVIng these vIOlatIOns, the Umon wIll seek an order dIrectIng the Employer to attempt to negotIate WIth St. Joseph's to obtaIn the penSIOn bndgIng provIsIOn and the terms relatIng to layoff and termInatIOn. The Umon wIll also seek an order dIrectIng the Employer to offer St. Joseph's the financIal InCentIve referred to In SectIOn 6.2 1 of AppendIx 18 The Employer's posItIOn on the ments of the gnevance IS that It complIed wIth ItS reasonable efforts oblIgatIOn In thIS Instance and that It dId not contravene SectIOns 6 1 1 and 6 2 1 of AppendIx 18 With respect to ItS tImelIness obJ ectIOn, counsel for the Employer noted that the gnevance IS based on alleged vIOlatIOns of ArtIcle 6 0 of AppendIx 18 and he argued that the appropnate tIme lImIt for thIS type of dIspute IS set out In SectIOn 8 3 Counsel submItted that the seven calendar day tIme penod began to run when OPSEU was provIded wIth the Transfer Agreement In February 2000 He argued that the SectIOn 6 1 1 Issues whIch the Umon 7 IS now raiSIng would have been ObVIOUS to the Umon In February 2000 and that the updatIng process whIch resulted In reVISIOns to the schedules dId not create any new Issues Counsel submItted that a concern about the faIlure to pay the financIal InCentIve referenced In SectIOn 6 2 1 should have been addressed by the Umon wIthIn the seven calendar day tIme penod. Counsel argued that, gIven the structure agreed to by the partIes for raiSIng a challenge to a transfer agreement, a gnevance filed more than three years after the Umon was provIded wIth a copy of the Transfer Agreement IS grossly out of tIme The Umon concedes that the gnevance IS untImely If It does not have the nght to gneve In 2003 and counsel IndIcated that the Umon IS not requestIng an order extendIng the tIme In excess of three years so as to make the filIng of the gnevance tImely The Umon takes the posItIOn that the event whIch gIves It the nght to gneve In 2003 IS when It was advIsed In Apnl 2003 that the Employer dId not provIde St. Joseph's wIth the financIal InCentIve Counsel noted that It was provIded wIth thIS InformatIOn at about the same tIme that It receIved the final verSIOn of the updated schedules whIch are attached to the Transfer Agreement. Counsel noted that there IS no IndIcatIOn on the face of the Transfer Agreement as to whether the financIal InCentIve was paid or not and he argued that a breach dId not crystallIze In thIS Instance untIl the Umon was advIsed In Apnl 2003 that the financIal InCentIve had not been paid. Counsel for the Umon also argued that the general dIspute resolutIOn process under ArtIcle 4 2 IS applIcable In thIS case SInce the vIOlatIOn of SectIOn 6 2 1 relates to the applIcatIOn of the Transfer Agreement and not to ItS substance Counsel submItted that the gnevance IS tImely because It was filed about eIght days after the Umon was told that the financIal InCentIve had not been paid, well wIthIn the thIrty day tIme penod contaIned In SectIOn 22 13 1 for filIng a Umon gnevance If the tIme frame In SectIOn 8 3 IS applIcable, counsel argued I should exerCIse 8 my dIscretIOn to extend the tIme for dealIng wIth thIS dIspute to the heanng date, havIng regard to the Importance of the Issues for the transferred employees, the relatIvely short delay and the absence of any preJudIce to the Employer In MinistlY of Health and Long-Term Care and OPSEU GSB FIle 1495/00 Vice-Chair Brown dealt wIth a tImelIness obJectIOn by the Employer wIth respect to Umon gnevances relatIng to the transfer of four psychIatnc facIlItIes to hospItals The essence of OPSEU' s posItIOn was that the Crown dId not make sufficIent efforts to persuade the reCeIVIng hospItals to leave transferred employees In the OPSEU PenSIOn Trust ("OPT") OPSEU advanced three grounds In support of ItS posItIOn, IncludIng one based on ArtIcle 6 0 of AppendIX 18 OPSEU argued that the tIme lImIt In SectIOn 83 whIch reqUIres a gnevance to be resolved wIthIn seven days of the Umon' s receIpt of a transfer agreement, dId not apply In the CIrcumstances because the provISIOn only addressed complaInts relatIng to the contents of a transfer agreement and dId not concern matters of ImplementatIOn. Vice-Chair Brown concluded that the essence of the Umon's posItIOn was that the transfer agreements themselves contravened ArtIcle 6 0 and that the tIme lImIt In SectIOn 8 3 applIed to the gnevances Insofar as they were based on ArtIcle 6 GIven that the tIme begIns to run under SectIOn 8 3 when the Umon receIved the transfer agreements and that the gnevances were filed at least ten months late, Vice-Chair Brown decIded not to extend the tIme for the filIng of the gnevances wIth respect to the ArtIcle 6 0 allegatIOn. The central Issue to be determIned relatIng to the Employer's tImelIness obJectIOn IS when In these CIrcumstances does the tIme for filIng a gnevance begIn to run. The Employer argues that the seven calendar day tIme penod began to run In February 2000 when OPSEU receIved a copy of the Transfer Agreement. I agree wIth the Employer's posItIOn that the Umon's receIpt of the revIsed schedules of the Transfer Agreement In Apnl2003 IS not a 9 relevant consIderatIOn In connectIOn wIth the tImelIness Issue The updatIng process whIch resulted In the revIsed schedules dId not result In any new SectIOn 6 1 1 Issues In other words, the penSIOn bndgIng Issue and the severance and layoff Issues whIch the Umon now relIes on as alleged deficIencIes In the Transfer Agreement eXIsted when the Umon receIved the Transfer Agreement In February 2000 In these cIrcumstances, the tIme for filIng a gnevance dId not start to run when the Umon receIved revIsed schedules to the Transfer Agreement In Apnl2003 The Umon takes the posItIOn that the tIme begIns to run when It was told on or about Apnl 22 or 23 2003 that the Employer dId not pay the financIal InCentIve referred to In SectIOn 621 The Umon submIts that It was not In a posItIOn to raise the Issue of the Employer's faIlure to pay the financIal InCentIve earlIer because the Transfer Agreement does not address the Issue an Issue In any event whIch relates to the admInIstratIOn of a transfer agreement and not to ItS substance As prevIOusly noted, there IS a dIrect connectIOn between SectIOn 6 2 1 the financIal provIsIOn, and SectIOn 6 1 1 The payment of the financIal InCentIve only becomes an Issue If the Employer IS unable to secure from the reCeIVIng hospItal the OPS terms and condItIOns of employment as reflected In SectIOn 6 1 1 The payment of the financIal InCentIve IS to assIst the Employer In obtaInIng Job offers that reflect as closely as possIble the OPS terms and condItIOns of employment. The remedy the Umon seeks In thIS Instance Illustrates the relatIOnshIp between SectIOns 6 1 1 and 6 2 1 In addItIOn to requestIng that the Employer be dIrected to offer the financIal InCentIve to St. Joseph's, the Umon seeks an order dIrectIng the Employer to attempt to negotIate WIth St. Joseph's to attaIn terms and condItIOns of employment In certaIn areas whIch mIrror the terms and condItIOns of the OPS agreement. In the absence of SectIOn 6 1 1 Issues, the payment of the financIal InCentIve IS Irrelevant. 10 A gnevance filed In 2003 whIch merely asserted that the Employer dId not make reasonable efforts to attaIn certaIn OPS terms and condItIOns of employment In a transfer agreement negotIated In 2000 would be clearly out of tIme The SectIOn 6 1 1 Issues whIch the Umon now wIshes to address eXIsted when It receIved the Transfer Agreement In 2000 and should have been pursued wIthIn the tIme frame prescnbed In SectIOn 8 3 Even If the Umon gnevance In 2003 were found to be otherwIse tImely and successful, an order dIrectIng the Employer to attempt to negotIate the SectIOn 6 1 1 Issues wIth St. Joseph's would lIkely be Inappropnate In the CIrcumstances The Umon IS attemptIng to obtaIn IndIrectly what It cannot obtaIn dIrectly gIven that a challenge to the Transfer Agreement only on the basIs of the SectIOn 6 1 1 Issues would be untImely In consIdenng the posItIOn of each party It IS my vIew that the Employer's posItIOn has consIderable ment. SectIOn 8 1 provIdes that all dIsputes ansIng out of ArtIcle 6 0 must be determIned pursuant to ArtIcle 8 0 whIch of course Includes SectIOn 8 3 and the stnngent tIme lImIts contaIned thereIn. The Umon's allegatIOn that the Employer dId not pay the financIal InCentIve IS a dIspute whIch anses out of ArtIcle 60 The fact that the Umon was told In Apnl 2003 of the Employer's faIlure to pay the financIal InCentIve does not mean that ItS oblIgatIOn to challenge the Transfer Agreement dId not anse In February 2000 wIthIn the tIme lImIt set out In SectIOn 8 3 Just as there are deficIencIes In the Transfer Agreement from the Umon's perspectIve because of the absence of some OPS terms and condItIOns of employment, there IS sImIlarly no reference In the Transfer Agreement to the payment of a financIal InCentIve The presence of certaIn SectIOn 6 1 1 Issues and the absence of an IndIcatIOn In the Transfer Agreement that a financIal InCentIve would be paid to St. Joseph's IS a reasonable basIs upon whIch the Umon could have concluded In February 2000 that no financIal InCentIve had been 11 paid to St. Joesph's and that the Transfer Agreement was not In complIance wIth ArtIcle 6 0 Even If the absence of any reference to the payment of a financIal InCentIve In the Transfer Agreement, by Itself, IS not a basIs for concludIng that there has been a potentIal contraventIOn of SectIOn 6.2 1 such an absence, In the face of certaIn SectIOn 6 1 1 Issues, should have caused the Umon to InqUIre about whether the financIal InCentIve had been offered to St. Joseph's Where certaIn SectIOn 6 1 1 Issues eXIst and gIven the dIrect relatIOnshIp between such Issues and the payment of the financIal InCentIve, the Umon IS at least oblIged to make the appropnate InqUIry In my VIew the Umon cannot rely on the fact that It was not told of the Employer's faIlure to pay the financIal InCentIve untIl Apnl 2003 when It dId not ask the ObVIOUS questIOn of the Employer at the relevant tIme, whIch IS when It receIved a copy of the Transfer Agreement In 2000 The tIme lImIt In SectIOn 8 3 IndIcates that these partIes Intended that dIsputes ansIng out of ArtIcle 60 are to be addressed and resolved qUIckly In thIS Instance the Umon dId not raise any Issues relatIng to SectIOn 6 1 1 In a tImely manner An Issue of the payment of the financIal InCentIve IS dIrectly related to the substance of the Transfer Agreement and accordIngly It must be addressed wIthIn the tIme frame set out In SectIOn 8 3 wIth the tIme for refernng the matter to medIatIOn/arbItratIOn startIng when the Umon receIved a copy of the Transfer Agreement. It IS my conclusIOn that the tIme for the Umon to challenge the Transfer Agreement and the Employer's faIlure to pay the financIal InCentIve arose In February 2000 and not In Apnl2003 when It was advIsed that the financIal payment had not been paid to St. Joseph's 12 For the foregoIng reasons, It IS my conclusIOn that the Umon gnevance dated May 1 2003 IS untImely AccordIngly thIS gnevance IS dIsmIssed. Dated at Toronto thIS 8th day of March, 2004 ~She~ - Vie