Loading...
HomeMy WebLinkAboutWilson 08-10-28 Nov, 5, 2008 1: 28PM No, 0779 p, 2/22 IN THE MATIER OF AN ARBITRATION BETWEEN: TRENT UNIVERSITY ~ THE E)MPLOYER AND OPSEU THE UNION GRIEVANCE OF E. WILSON - JOB EVALUATION BEFORE: 8.L. STEWART ~ ARBITRATOR APPEARANCES: FOR THE UNION: E. WILSON, GRIEVOR ASS1STED BY J. FERR, GRIEVANCE OFFICER FOR THE EMPLOYER: S. WILL1AMS THE HEARING IN THIS MATTER WAS HELD IN PETERBOROUGH~ ONTARIO, on September 19, 2008 Noy, 5, 2008 1: 28PM No, 0779 p, 3/22 2 AWARD The grievance" before me is dated June, 11, 2007 and is filed on behalf of Mr. E. Wilson. Mr. Wilson is employed as a Machine Shop Technician in the Science Complex at Trent University a.nd has held that position since September 30,2005. Mr. Wilson's grievance has arisen from his disagreement with the classification of his position by the Joint Job Evaluation Committee ((fJJEC"). There was no objection to my jurisdiction to hear and determine the grievance. The Collective Agreement provides for the existence of JJEC in Article 17.4. It is a joint Union Employer committee consisting of equal representatives of the partiesJ operating by consensus, with two representatives from each constituency required for a quorum and any decision requiring equal representatives from each being present, A Job Evaluation Manual sets out the principles of evaluation, the factors that are included in the categories of Responsibility, Skill, Effort and Working Conditions, and the: job evaluation process. The Manual contains the following under the heading "Purpose of Job Evaluation": The purpose of job evaluation is to systematically and objectively place a relative value on jobs within an organization, in order to form the rationales and basis for determining pay levels that are fair and equitable. A job evaluation system defines common job elements that exist in all jobs to varying degrees. Job evaluation requires measuring the amount, or degreeJ to which that element exists in a particular job. Each degree within Nov, 5, 2008 1: 28PM No, 0779 p, 4/22 3 each element is assigned a weighted point value that, when added together, provides a total value for each job, The value then determines the appropriate salary level for the job. The general principles of job evaluation contained in the manual include the principles that (1) it is the job and not the job incumbent that is being evaluated and (2) each job is evaluated in the context an organiz:ational structure. The Collective Agreement provides for an appeal from a decision of the JJEC, with an a.ppeal initially proceeding before JJEC and ultimately, if the incumbent is not satisfied with that decision, to an arbitrator. The arbitrator is limited to consideration of the relevant facts submitted fOr review to the JJEC. Mr. Wilson was the first incumbent in the newly created position of Machine Shop Technician. This position was rated by the JJEC and was awarded 373 points, placing it in Band 9 for salary purposes. Prior to the establishment of this position there were two incumbents performing work in the position of Apparatus Design Technician, which had been awarded 398 points, placing it in Band 10 and Technical Co" ordinator, which had been awarded 400 points, placing it also within Band 10. These two positions were declared redundant. In his submission, Mr. Wilson referred to his assumption of the duties of those positions and argued that his position should be assessed in a Noy, 5. 2008 1:28PM No, 0779 p, 5/22 4 comparable manner. However, the educational and experience requirements in the newly created position were at a lower level than that of the previous positions. There are two particular areas that were the focus of Mr. Wilson's arguments in the appeal process. It was his submission tha.t he has not been correctly evaluated in connection with the IIResponsibility for the Work of Others~~ and the "Job Knowledge" factors. With respect to the first matter, he referred to his involvement with the work of students and his role in relation to the work of electronics technician. With respect to experience, Mr. Wilson referred in his submission to the various and complex projects that he has been involved in, including his work on the Laser Stabilization Mount and Methane Gas Analyzer, which in his view required experience integrating many areas of expertise, e:xperience that wa.s not, in hi$ view, fully recognized in the evaluation of his job in relation to the Experience aspect of the Job Knowledge factor. In a submission dated April 17, 2007, a number of Science faculty members provided a rationale for a higher rating of the position in relation to various factors, particularly Impact, Responsibility for the Work of Others, Communication and Effort. There Were a number of letters provided by others with respect to Mr. Wilson's work, including commendations relating to the efficiency of the workshop, the thouf5htful No Y. 5, 2008 1: 28PM No. 0779 p, 6/22 5 and informed solutions that he provides, as well as his skill and expertise and co~ordination of activities. With respect to the issue of whether Mr. Wilson is responsible for the work of others, the Associate Dean of Science has confirmed that heJ and not Mr. Wilson, is the supervisor of the Electronics Technician. The work that Mr. Wilson performs in relation to students~ while supervisory in a sense, does not constitute the kind of employee supervision suoh as working in a lead capa.city with other bargaining unit members and having a role in hiring and firing that the job evaluation system contemplates. Mr. Wilson noted the complexity of communication in an academic environment, however it is within this environment that all positions are assessed. While it is readily apparent that Mr. Wilson provides dedicated and high quality service in his position, as was noted in the many thorough and thoughtful references that have been provided, it is not Mr. Wilson's performance, but rather his jobt that is being evaluated. The critical issue in a job evaluation system is relativity, It is the evaluation of the particular position in relation to other positions. In this regard, I note that the Job Evaluation Committee considered the particular comparator positions of Apparatus Design Technician, Technical Co-ordinator and Electronics Technician. In this contextt relativity has been assessed and the Machine Shop Technician has been allocated points on a ba.sis that is understandable and Noy, 5. 2008 1: 29PM No, 0779 p, 7/22 6 justifiable. 1 am thus compelled to the conclusion that the position has been properly by the Joint Job Evaluation Committee, notwithstanding the standard of excellence that Mr. Wilson brings to his duties and that he brought to the advocacy of his position before me. Accordingly, the grievance is dismissed. Dated at Toronto, this 29th day of September, 2008 m~k Susan L. Stewart - Arbitrator Nov. 5, 2008 1: 29PM No, 0779 p, 8/22 Hall, Kathleen ---" From: Sent: To: Subjoct: rblatr@rwbh.ca Tuesday, October 28, 2008 2:62 PM barbar@vianet.ca; Hall, Kathleen FW: Oecislon In Ml,Iskoka Algonquin Healthcare and OPSEU Muskoka Algonquin Healthoare and OPSEU Decision.pdf; ATT318227.lxt Attachments: ~ IJ'""~' ~... ,. ., Ml);skoka Algonquin ATT~18227,txt (l H ea Ithcare Q", K6) Barb and Kathleen, At:ached is th~ deoision of Christine Schmidt concerning the Community ~abs a~bi~ratio~ w~ioh took plaQ~ in Braceb~idge on Sept. 30, As I anticipated, we were r.ot Suc~essful. Please c~4l me if you have any questions regarding the decision. U,,:ortu~at~lYI arbitrator Schmidt followed th~ vast majority of cont~actin9~out case~aw a"d fou~d that the decision in issue was not, in fact, a violation of the coll~ctive agreemer:t. ~----Ori9i~al Message----- rrom: Christine 8chmidt (mailto:chriatin~@christinesohmidt.ca] Sent: Tue$d~YI October 28, 2008 2:43 PM To: ~ick; Christopher C. White Subject: Deoision in Muskoka Algonquin Healthcare and OPSEU M~, 31~ir and M~. White, A~tached is the decision in the above noted matter. A hardcopy together with my account w~ll be forwarded by regular mail. 1 Nov, 5, 2008 1: 29PM No. 0779 p, 9/22 IN tHE MATi"ER OF AN ARBITRATION BETWEEN: MUSKOKA ALGONQUIN HEAL THCA~E (the "Hospital'l) -and- ONTARIO PUBLIC SERVICE UNIONl LOCAL 380 (the uUnion") AND IN THE MATTER OF A UNION POLICY GRIEVANCE DATED AUGUST 22.~2008 ARBITRATOR: ChristIne Schmidt APPEARANCES: For the Union: RIchard Blair, Counsel Barbara Barry, Local President, Local 3$0 Judy Storey, staff representative Erika-Kristen Strok-McLellan, VP, Local 380 For the Hospital: Chris White, Counsel Harold Featherston, Chief Professional and Diagnostic Services Officer Robert Hughes, Human Resources Generalist This hearing was held at Bracebrldge on September 30, 2008. Noy, 5, 2008 1: 29PM No, 0779 p, 10/22 2 AWARD The hearing in this matter was held in Bracebridge, Ontario, on September 30, 2008. The arbitrator was appointed pursuant to a request made by the Union under subsection 49(4) of the Labour Relations Act, 1995. There Is no dispute that I have been properly appointed and had Jurisdiotlon to determine the matter In issue between the parties. The grievance, dated August 22, 2008, Is a policy grievance fried by the Union. It alleges a violation of article 22 of the collective agreement. The remedy sought is a declaration that the Hospital has violated the collective agreement. In the event that r so declare, the parties agree that I will remaIn seized to address the Issue of remedy. Article 22 i$ set out In its entirety below: ARTICLE 22~CONTRACTING OUT (The following olause wlll appear in all collective agreements replacing any provision relatIng to Contraotlng Out that existed In the Hospital's expiring Collective Agreement:) 22.01 The Hospital shall not contraot out work currently performed by members of the bargaining unit If, as a result of such contracting out, a layoff of bargaining unit employees occurs. This clause will not apply in circumstances where the Hospital no longer provides particular services as the result of the rationalization or sharing of services between Hospitals in a particular geographical distrlctl or as a result of the withdrawal of the Hospital's license to perform such services. Noy, 5, 2008 1: 29PM No. 0779 p, 11/22 3 Issue The issue to be determined Is whether there has been a "contracting out" of work by the Hospital. Facts The agreed facts Include the following Context for the Issue in dispute, At the time of the hearing. no layoffs had yet occurred although notice of the elimination of 5,9S FTE positions in the Hospital laboratories had been given by the HO$pital to the Union. The parties agree that the anticipated layoffs are a dIrect result of the work currently being performed by bargaining unit members being lImoved out" or "transitloned out" of the Hospital to Gamma-Dynacare Medical Laboratories Services Limited (GDL, previously known as Dynacare G~mma Institutional Laboratory Services Limited, or DG1), This grievance arises out of the manner [n which "community laboratory services" are performed and the "transitloning" of the delivery Of such services from a "pilot projeot model" to a "provincial model" of servIce delivery, In essence, "community laboratory services" entails two components: the collection of community laboratory work (including transportation of specimens and reporting functions), and the testing of such laboratory work. A brief Chronology of the way communIty laboratory services have been delivered is in order. Historically, what were then the Huntsville District Memorial Hospital (HDMH) and the South Muskoka Memorial Hospital (SMMH) carried out both the collection and testing of community laboratory services. Thereafter, and as a result of a Toronto~based hospitallnltlatlve, a not-for-profit entity, Hospitals In"Common Laboratories (HICL). was created, HICL began to operate licensed collection sites for community laboratory work across Ontario. The testlng of community laboratory samples continued to be carried out in the hospitals. In the 1990s, the provIncial government initiated the restructuring of health services in Ontario. In or about 1997, under a new model, HICL was made to Noy. 5, 2008 1: 29PM No, 0779 P,12/22 4 compete with private heath care companies to retain the community laboratory collection work. It was at that time the Ministry of Health and Long-Term Care (MOHL rC) initiated 12 pilot projects, which changed the business modal for the delivery of community laboratory servIces. HDMH and SMMH were two of the hospitals where the pilot project model was implemented. DGI was the successful bidder on the contract with the hO$pltals and became a "co-venturer" with them to provide community laboratory services. The pilot prOJeot model dictated that "co~venture$.' were formed to enter Into agreements with the MOHL Te, referred to as MQH agreements. The Ministry provided "fixed envelope funding," the amount of which was stipulated In the agreements, and DGI and the hospitals negotiated the divIsion of those funds between them, DGI carried out the collection of community laboratory work and the hospItalS continued to perform the testing component. When the two hospitals (and other sites) merged in 2005 to become Muskoka Algonquin Healthcare, the pllot project model for the provision of community laboratory services was maintained. In or about the fall of 2006, the Hospital commissioned a review of laboratory services. A number of recommendations stemmed from that review, Including a recommendation to terminate the pilot project. In response to this recommendation, the Hospital's response 1$ set out as fOllOws; We have contacted the Ministry of Health, Lab Branch, and requested financial assistance to support our ongoing participation in the Pilot project. If this is not forthcoming, we will be recommendIng termlnation of the Pilot project. To date the MinIstry has indloated that they wlll not provide additional finanOlal assistance at this time but that they will be conducting a review of the Pilots "soon." The Ministry has Indicated that any future decisions will be based on the recommendations of this review. We contInue to work with the Ministry towards a mutually agreeable solution. The MOHL TC review, undertaken by RPM Management consultants, completed its final report in March 2008. A key finding in the report suggested "that the Nov, 5, 2008 1: 29PM No, 0779 p, 13/22 5 envelope funding level is not sustainable in pilot projects where wOrkload has increased substantially. If remaining pilots were to continue, fundIng levels would llkely need to be redistributed or increased to address existing issues," In the end, the report recommended moving to the "provincial model" for community laboratory services delivery. The provincial model entails community laboratory services providers (such as GDL) bidding on contracts for both components of community laboratory servIces. The bidding and negotiations relating thereto take place directly with the MOHL re. The report also recommended that the pilot hospitals and community laboratory providers "have input Into the decision making process for the future state of each pilot project." The Hospital, provided its input in response to the report. It cited what it believed were the 11m any benefits" to the pilot project service delivery model. Oonslstent with correspondence sent to the MOHL TC by the Hospital, the Hospital's stated position was that the major drawback in the pilot project model was the insufficiency of funds provided by the funding model in place. The Hospital's response indicated that since the Implementation of the pilot project service delivery model for community laboratory services In 1997, workloads had increased across the Hospital'$ two sites by 150%. The Hospital proposed two solutions to address its deficit position in response to the report. The Hospital's preferred option was to have the MOHL TC provide the existing funding for community laboratory services to the Hospital and allow it to deliver community laboratory services. Alternatively, the Hospital proposed that the hospital/private partnership arrangement continue, with the caveat that the funding model allow the program to operate C05t~neutrally. In this context, the MOHL TC sent to the Hospital and GDl a "Letter of Intent," whloh It requested the Hospital and GOl sign and return to the MOHL TC if they agreed with the provisions set out as follow$: This letter is to confirm that, as a result of a series of discussions to exchange and review Information with respect to the pilot projects, the Ministry of Health and Long~Term Noy, 5, 2008 1: 29PM No, 0779 p, 14/22 a Care, Muskoka Algonquin Healthcare and Gamma-Dynacare Medical Laboratories, have together determined that the most viable option to ensure sustainability and accessIbility to the community laboratory services for Muskoka- Algonquin and Burk'e Falls, is to accept the recommendation for the Laboratory Pilots Projects Review report that the services be moved to the p~ovincial model of community lab services. This 1$ also to confirm that all the parties have agreed to work together to develop and implement a transition and communication plan to move from the pilot model to the provincial model and to continue to plan collaboratively as the transition takes place. All parties will work together to ensure that community laboratory services are accessible through the provincial model upon the effective termination of the pilot projects agreements. The MQHL TC provided notice to the Hospital of the pilot project agreements' terminations on August 14, 2008, whioh terminations (in respect of the two sites) is effective 180 days from that date. The Ministry funds which have heretofore been provided by the MOHL TC to the Co"Venture, will, thereafter remain with the MOHL TC, As explained abovel the provinCial model dictates that the MOHL TC negotiate and contract directly with private accredited companies for the provision of community laboratory services. In thIs model) the Hospital Is not engaged In this latter process and at no time did it partICipate In any discussions between the MOHL TC and GDl for the prOViSion of community testing services. Shortly after the Hospital and GDl signed the letter of Intent, the Urolling out" of the new model was undertaken in the press and in the Hospital. The press release Issued by the Hospital and GDl makes clear that GDL will be performing the testIng and collection of community laboratory work, There is every Indication in the press release that the Hospital Is BOnnboard." The press release states in part: The decision to transition from the pilots to the provincial model is the outcome of collaborative discussIons amongst MAHC, Gamma..Dynacare. the North Simcoe Muskoka Local Health Integration Network and the Ministry of Health and Noy, 5, 2008 1: 29PM No, 0779 p, 15/22 7 LongN Term CarElI and is in keeping with the recommendation of the Provincial Laboratory Pilot Projects Review for maintaining long"term sustalnability of lab services. On August 22, 2008, the Hospital provided formal nOtlfication of layoff to the Union and the processes establlshed in the collective agreement in the circumstances of an Impending layoff are currently unfoldIng. Union's Position The Union t~kes the position that the 10$S of the community laboratory testing work from the Hospital within the context referenced above falls within the deftnltlon of "contracting out" in article 22.01, Anticipating the HospItal's argument regardIng the absence of a contract between the Hospital and GDL for the provision of community laboratory testing services, the Union argues that the "Letter of Intent" referenced above, together with the press release Issued by the Hospital ~nd GDL, is evidence of the Hospital entering Into a Itthree party agreement" to transfer work from the pilot project model of community laboratory services to the provincial model, where GDL will be t~king over the testIng of community laboratory work. The UnIon oharacterizes the Hospital as a "willing partner In the transference of work to its co-venture partner Dynacare." The Union's posltlon Is that article 22.01 is Intended to provide protection ag~lnst the "seamless transltlonlng" out of the community laboratory testrng work. The Union relies on the second sentence of article 22,01 In support of its contention that the "no contracting out" clause Is Intended to preclude the movement of bargaining unlt work out of the Hospital and is to be interpreted more broadly than what has traditionany been understood as "contracting out", Specifically, the second sentence sets out exceptrons to the applicability of the "no contracting out" clause and provides Insight Into its intended meaning- The exceptions are indicators that the parties recognIze there may be changes in the health c~re sector, which are beyond the Hospltalfs control, and have the effeot of transferring work out of the bargaIning unit and causing layoffs, It follows, the Union argues, that the parties have turned their minds to the Issue, and that only Noy, 5, 2008 1: 29PM No. 0779 p, 16/22 8 in the two enumerated circumstances will the prohibition against "contractIng out," not apply. The exceptions imply the parties' intent to interpret "contracting out" broadly so as to preserve bargaIning unit work beyond the two exceptions set out in the second sentence of the article. Hospital's position The Hospital argues that the circumstances described above, whereby bargaining unit work Is being moved out of the Hospital to GOL, Is not r'contracting out." The Hospital states that the term "contracting outll carries Its traditional meaning in the collective agreement context, whereby an employer enters Into a contact to have bargaining unit work performed by a contractor, The Hospital pOints out that there is no contraot or agreement by the Hospital to have the testing of community laboratory work done by GDL. There Is no offer from the Hospital to GDL to take over the testing of community laboratory servIces, nor any invitations by the Hospital to entertain bids for the testing of community laboratory work. There is no acceptance by GDL of any such Hospital offer, and no consideration will fiow between the Hospital and GDL as it takes over the community testing work, The fundamental elements of a contract, namely an offer, acceptance and consideration are nowhere to be found. The Hospital elaborates that the contracts, which provided for the HospItal's provision of oommunity laboratory testing services, are being termInated pursuant to the notice requirements set out In those contraots. It points out that the Hospital is not mandated to do the community testing work and that once the termination of the contracts is effective. the Hospital community testlng work Is discontinued. The Hospital reiterates that It is not continuing to have the work done by a third party, but rather is losing It entirely, together with those funds it had previously reoelved to undertake it. The Hospital argues that it Is not properly Inferred that the second sentence in article 22.01 leads one to Interpret "contracting out" as prohibiting any movement of work done by bargaining unit members to another party, with the exception of Noy, 5, 2008 1: 30PM No. 0779 p, 17/22 9 those two circumstances set out In the second sentence. Rather. the second sentence simply stipulates two circumstances, in which the "no contracting out" clause will not apply even when they result is the layoff of bargaIning unit employees, The two enumerated exceptions are not an exhaustive list which by Implication alters the meaning of "contracting out" in the first sentence of the clause. Implicit in the Hospital1s argument 1$ that the exceptions are set out In an abundance of caution because they have the same outward manifestations as contracting out, namely the loss of work and resulting layoffs. The Hospital relies on the case of Re ottawa-Carleton (regional MunicIpality) and C,UP,E., Loc 503 (1994),46 L.A.C. (41h) 251 (Michnick). Decision There is no dispute that the testing component of community laboratory services currently performed by members of the bargaining unit in the HospItal laborator1es, is "transitioning out" or Ilmovlngll to GDl as a result of the implementatIon of the provincial model for the delivery of communIty laboratory services, Likewise, there Is no d1spute that the "transltloning out" of work is resulting in the layoff of bargaining unit employees. At issue as stated above, Is whether or not the Iltransltloning out" of work, as contextualized ~bovef falls within the definition of "contractlng out" as set out in article 22.01 of the collective agreement. I have reviewed the numerous exhibits that provided the documentary foundation for the factual context agreed between the parties and outlined above. I have also thoroughly reviewed the case on which the Hospital relies, For the reasons set out below, the community teSting laboratory work which will soon be undertaken by GDl, is not properly construed as the "contracting out" of bargaining unit work by the Hospital as set out in article 22.01. WIthout question, the transfer of work from a bargaining unit, whatever the manner of such transfer, raises I$Sues of fundamental importance to the parties to any Collective bargaining relationship. The case before me is no exception, Noy, 5, 2008 1: 30PM No, 0779 p, 18/22 10 Such transfers bring into conflict an employer's ongoing efforts to improve efficiencies, in this case within the context of what has been fixed envelope government funding, and a Union's goal of protecting both the Job security of its members and the Integrity of the bargaIning unit. For some time, parties to collective bargaining have to sought to balance these competing Interests. In so doing, they have produced a body of relevant arbitral Jur1sprudence against which collective agreements are negotiated and interpreted. Parties to collectIve bargaining are presumed to understand the arbitral jurisprudence as it now stands. and are also presumed to understand commonly used definitions such that any attempt to depart from the Jurisprudence or such definitions requires clear and express language, The starting pOint with respect to the law on "contracting out" 1$ the now firmly entrenched arbitral presumption that absent express language In the colfectlve agreement to the contrary, a bona fide contraoting out of work Is a management right: see A$ u.s, W,A. and Rvsse/steel Ltd. (1966), 17 L.AC. 253 (Arthurs). Not surprisingly, various clauses have been devised to address the issue In this context, Including standard clauses such as the one set out in the first sentence of artiCle 22.01. Similarly, in negotiating restrictions on contraotIng out, It is crucial that parties express themselves in clear language. In A/can Smelters & ChemIcals Ltd. and C.AS.A. W.! Local 1 (1987),28 LAC. (3d) 353, Arbitrator Hope writes: In the contemporary context, one can say that unions mu:;;t continue to accept the reality that they must negotiate any limitation on contracting out in collectiVe bargaining and have the limitation set out in specific terms in the collective agreement. "., The result is that neither side can expeot their intentions to arise by implication aa opposed to expressing those Intentions In clear language. ;'Contracting out'l is not defined In the collective agreement before me. The definition of "contracting ouf' in the coUeotlve agreement setting is canvassed in Re Va/co Furniture Ltd. and U,S, W.A., Loc. 9315 (2000),86 L.A.C, (4th) 309 (Roach). The discourse in the jurisprudence, however, for the most part relates to Noy, 5, 2008 1: 30PM No, 0779 p, 19/22 11 what constitutes an independent contractor or a third party contractor. There Is no dispute that "contracting out" is an employer practice whereby it enters into an agreement with a third party contractor to do the work which up to that point had been undertaken by members of the bargaining unit. There Is no dispute that It Is the employer to the collective agreement who "arranges" or Uasslgns" or Ucontracts out" the bargaIning unit work. The employer party to the collective agreement has effective control over the movement of work out of the bargaining unit and this is a defining characteristic of a "contracting outll, As set out above, the Hospital and the Union are presumed to know all of the forgoing and to negotiate the language of the collective agreement against the backdrop of this arbitral jurisprudence, In order for the Union to succeed in this case, therefore, there must clear langu~ge In the collective agreement that expands the meaning of "contracting outlt to capture what has transpired in this case, There Is not, and therefore the Union cannot succeed. At the hearing, two conflicting interpretations were offered as to the meaning of contacting out under this collective agreement. The Hospital maintains that the term means what It usually means in a collective agreement. namely that the employer must enter into contract to have bargainIng unit work performed by a contractor. It is submitted that the second sentence of article 22.01 n under which the rationalization or sharing of services between hospitals, or the withdrawal of the HospItal's license to perform such services are dealt with ~ Is there simply out of an abundance of caution in the context of a health care system being restruotured. These initiatives may have the same impact as a contracting outl however, It Is argued that there is no intention to expand the meaning under "contracting out." On the other hand, the Union's interpretation seeks to depart from the usual meaning of "contracting out" as established in the jurisprudence. It seeks to have the term interpreted more broadly. The Union would have the "contracting out" clause protect against the loss of bargainIng unIt work occasioned by its movement out of the Hospital for any reason save and except In those two No v. 5, 2008 1: 30PM No, 0779 p, 20/22 12 circumstances enumerated in the second sentence. The Union submits that this latter sentence, which exempts from the clause's application situations which are not usually within the meaning of contracting out, and over which the Hospital may have little control, by implication dIrects the arbitrator to the parties' inferred intent to interpret contracting out more broadly than Is otherwise understood by the term. At its height, the Union's argument was that the Hospital entered into a "three party agreement" with the MOHL TC and GDl to contract out the community testing work. The Hospital's assignment of testing work to GDL is evidenced by the Hospital having signed the "Letter of Intent" referenced above. combined with a press release Issued by the Hospital and GDl shortly thereafter. Despite the argument, these two documents, situated in the factual context agreed by the parties, does not constitute "contracting out" of bargaining unit work by the Hospital as understood In the arbitral Jurisprudence. The Hospital had no effective control over th$ movement out of the Hospital of community testing work to GDL. Similarly, and with reference to the second sentence of article 22.01, I agree with Arbitrator Hope when he expressed the view that neither party to a collective agreement "can expect their intentions to arise by Implication as opposed to expressing those Intentions ln clear language." The Union here has submitted that I should Infer a broader meaning to contracting out than that which Is normally ascribed to It. It would be imprudent to do so based on the Union's argument of Implied Intent of the parties. The case of Re OttawanCarleton (regional Muniolpallfy) and C.UP.E., Loc 503 (1994),46 L.AC, (4tl1) 261 (Miohnlck) was relied on by the Hospital and reinforces my decision that what has taken place In this case is not "contracting out." In the circumstances of that case, the Ministry of Community and Social Services (Mess) evaluated the manner In which "special needs" presohool children were to be serviced within the regional municipality, The resource Noy, 5, 2008 1: 30PM No. 0779 p, 21/22 1::3 teacher position In the bargaining unit was eliminated by the region as a result of their "work" being moved to an exfsting agency, named Andrew Fleck. Despite the then community request that management of the program be taken away from the province, the MeSS view and ultimate decision was to have Andrew Fleck manage the Services (as well as the funds associated with the provision of the services), The funding for what had been resource teachers under the old model provided to the region moved to Andrew Fleck, Arbitrator Michnick, on behalf of the board, and in reference to the Re Ottaw8- Carleton (regIonal MuniOlp$lIty) and C.UP.E., Loe 503 (1989)19 L.A.C, (4th) 201 (Thorne) case, writes: Unlike the Thorne case, the present the union all but concedes! is not really concerned with tlcontracting out" at all. What the present case Is about is a decision by the next level of government, the provInce, to have certaIn work for which It provIdes the funds performed in a manner other than by the region. While in this case the region clearly was a willing partner in the initiative to find a method of service delivery that would respond to the concerns that had been expressed. Such cooperation ought not to blur the fact that control of where that work goes lies ultimately with the province. That is the simple reality In a case like the present, and it is not plausible to read the Brown award as imposing on these lower tiers of government employers (the city and the region) a prohibition against divesting themselves of work in circumstances where that decision is not within theIr control. The Michnick case Is analogous to the case before me. The language of article 22.3 of that agreement is the traditional form of "contracting out" protection language contained in artIcle 22.01 of the collective agreement before me. The Hospital here, like the region in the Michnlck case, has not "contracted our' anything. What has transpired here Is that contrary to the Hospital's proposals to keep the community laboratory testing work in the Hospital, the MOHL Te, which provides and controls the funding for community laboratory services, has decided to have it done according to a provincial modeL In deciding to change models for Noy. 5, 2008 1: 30PM No, 0779 p, 22/22 14 the delivery of community laboratory services. the MOHL TC termInated its contracts (for two sites) for the pilot projects, and will be discontinuing the funding for community testing in the Hospital entirely1, In the provincial model, the MOHL TC and it alone, negotiates with third party contractors in their bids to perform the testing work. The Hospital "agreeing" to "develop and implement a transition and Communication plan to move from the pilot project model to the provincial mOdel and to contrnue to plan as the transition takes place" Is not Indloatlve that the Hospital has assigned the work QUe, Article 22.01 of the collective agreement, and in particular the word "contracting QUf' has a clear meaning reflected in the arbitral jurisprudence referred to above. There Is no violation of article 22.01 where the work Is being dlsoontlnued by the Hospital by virtue of a decision not within Its effective control and for which 1t has lost all funding. In such circumstances, and at Its foundation. the Hospital oannot be found to have IIcontraoted out" bargaining unit work, The grievance Is dIsmissed. DATED AT TORONTO, ONTARIO this 28th day of October, 2008, ( "1 ". ........;~.~.,.... ,,~' ~"""::.'.' /1~..("".,. ChristIne Schmidt, ArbItrator 1 There may be exceptions to this, as pointed oul In raspect of stat tests ordered In the oommunlty and performed at the Hospital, However, My such exceptrons have no bearing on the 1$$l,le before me. 2 I should state that had the Hospital given notice pursul:lnt either the Co-Venture agreements or the MQH agreements to terminate such agreements, and the documentation before me suggests that it was the Hospital's lntentlOl'l to do so were additional fUl'lds not forthoomlng to address the Hospital's deficit positIon attributable to the pilot projects, this in no way changes the applicable analysis to the "contracting out" provision set out herein, The Hospital is &r'ltitled, under the language of article 22.01, to "give up th~ work" entirely,