HomeMy WebLinkAboutUNION-1996-28-02
Before:
Appearances:
In the Hatter of an Arbitration
Between
Bruce-Grey-owen Sound Health Unit
Association of ontario Nurses Association
Allied Health Professionals: Ontario
(Applicants)
~d
the
and
The Crown in Right of ontario
(Respondent)
in the Hatter of an Interpretation of
Sectoral Framework Agreement for the
Broader Health Sector.
H. Brian Keller, Arbitrator
Christopher Eames for Bruce-Grey-owen Sound
Health Unit
Paul Cavalluzzo for the ontario Nurses
Association and Allied Health Professionals
Neal Sommer and Stewart Saxe for The Crown in
Right of ontario
Hearing in Toronto, February 13, 22 and 23, 1996.
2
AWARD
This matter was heard by agreement of the parties pursuant to
Section 8 of the Sectoral Framework Agreement for the Broader
Health Sector. The parties agreed the arbitrator was properly
seized and had the necessary jurisdiction to hear and determine
this issue.
In July 1993 an Act known as the Social Contract Act became law.
On July 15, 1993, the Government of Ontario and representatives of
employers and unions in the broader health sector entered into the
Sectoral Framework Agreement as provided in the Social Contract
Act. The Sectoral Framework Agreement was later designated, in
accordance with ~~e provisions of the Social Contract Act, by the
Minister of Finance.
In August, the Bruce-Grey-Owen Sound Health Unit entered into Local
Agreements with Ontario Nurses Association (ONA), the Association
of Allied Health Professionals: Ontario (AABP:O), as well as one
applying to non-bargaining unit employees.
As a result of the above, Bruce-Grey-Owen Sound Health Unit avoided
the "fail-safe" provisions of the Social Contract Act and its need
to find savings was reduced in accordance with that Act.
In February 1994 Bruce-Grey-Owen Sound Health Unit received a
document from the Ministry of Health acknowledging that Bruce-Grey-
3
Owen Sound Health Unit was eligible for the target reduction and
providing a social contract reduction target of $227,805. The
amount was broken down reflecting each of Bruce-Grey-Owen Sound
Health Unit's programmes and providing a 4.40% reduction for each
programme individually. That is, each programme funded by Ministry
of Health had its own specific monetary reduction target even
though the percentage reduction was the same for each.
On February 14, 1994, Bruce-Grey-owen Sound Health Unit wrote to
the Deputy Minister of the Ministery of Health seeking
clarification of the apparent multiple target approach. The letter
stated in part that:
"We believe that the result of such an interpretation...
[multiple targets] ... would result in the implementation
of widely varying savings measures throughout our agency
and that fair and equitable treatment of all employees
could not be achieved ..."
No reply was forthcoming so on December 17, 1994 Bruce-Grey-Owen
Sound Health Unit again wrote to the Deputy Minister, seeking a
reply to their earlier letter.
The Deputy Minister replied on January 30, 1995. In her letter she
wrote:
"I am not able to agree with your view that agencies
delivering several Ministry funded programs should be
permitted to move social contract savings targets across
program lines. Fundamentally, this is because of the
4
responsibility that
that public funds
consistent with the
Treasury Board.
transfer ministries have to ensure
are expended in ways that are
intent of the Legislature and
Each year the Legislature directs provincial funds for
specific programs in specific amounts in accordance with
overall government priorities and policies. In turn,
provincial ministries and the agencies they fund are
responsible for spending within approved funding levels
for approved programs. The Social Contract Act does not
override this fiscal and program accountability for
providing service within approved program budget levels.
Consequently, the Ministry cannot permit agencies to blur
program lines in their effort to meet social contract
savings targets.
On February 9, 1995 the applicants commenced proceeding under the
dispute resolution process as described in Section 8 of the
Sectoral Framework Agreement.
Bruce-Grey-Owen Sound Health Unit receives its funding for
programmes on a programme by programme basis. Monies received for
a programme must be spent on that programme; they can not be used
to fund another programme.
In the instant case according to the evidence of Mr. Peter Muir,
Director of Administration of Administration and Finance, the
savings target of $227,805 was met pursuant to the work and
recommendations of the Joint Workplace Committee.
The Joint
Workplace Committee is specifically provided for in the Sectoral
Framework Agreement and tasked with the responsibility of carrying
out the establishment based implementation of the Social Contract
obligations.
The Joint Workplace Committee is comprised of
5
representatives of the bargaining agents, non-union non-management
representatives as well as management.
Mr. Muir's further evidence was that the mandated savings were met
on an establishment-wide basis and not by simply reducing each
programme by 4.4%. He also testified that no funds for a programme
were spent on any other. The result was that the total dollars
amount of savings was realized as well as the integrity of
programme by programme funding.
The dispute arises because Ministry of Health has taken the
position that Bruce-Grey-Owen Sound Health Unit has over spent in
some programmes. This situation arises because Ministry of Health
purported to reduce the allocated budget for each programme by
4.40%. By achieving savings on a global basis, Bruce-Grey-Owen
Sound Health Unit did not achieve savings of 4,40% for each
programme and was considered to have over-spent in those
programmes. Ministry of Health reduced the next years' authorized
budget by the amount they considered Bruce-Grey-Owen Sound Health
Unit to have over-spent.
Mr. Muir also testified that he has not been told by anyone in
government that the expenditures are being questioned, just the
authorized budget. He stated that the Joint Workplace Committee
discussed how to implement the social contract savings and
identified savings in accordance with the Social Contract Act and
6
Sectoral Framework Agreement as, for example,
unfulfilled vacation, leave without pay, etc.
attrition,
Finally, not all Bruce-Grey-Owen Sound Health Unit programmes are
funded by Ministry of Health. All programmes, regardless of the
funding Ministry, were targeted for a 4.40% savings.
The issue, as articulated by the applicants, was whether the
respondent had the power to set multiple targets for an
establishment. I was asked to make a declaration that they can not
and remain seized to deal with any further remedy, as required.
The applicants argument is that first, nothing in the Sectoral
Framework Agreement or social Contract Act contains even a whisper
that permits the respondent to set targets on a programme basis.
Reference was made to a number of provisions in the Social Contract
Act that provide for a single establishment target. For example,
Social Contract Act, Section 7(4); 11(3)2; 14(2); 16(3)1; 25(1);
27(1), etc.
It was also submitted that the purpose of the Social Contract Act
has to be considered when looking at what the respondent wishes to
do. The purpose of the Social Contract Act is to foster local
cooperation and initiative. It has an express purpose as stated at
Section 1 of the Social Contract Act.
7
"To encourage employers, bargaining agents and employees
to achieve savings through agreements at the sectoral and
local levels primarily through adjustments in
compensation arrangements.
To maximize the preservation of public sector jobs and
services through improvements in productivity, including
the elimination of waste and inefficiency.
To provide for expenditure reduction for a three-year
period and to provide criteria and mechanisms for
achieving the reductions.
To provide for a job security fund.
If the government had wished to simply roll programmes back by
4.40% there would have been no need for the elaborate framework
established by the social Contract Act. The government could have
just cut its au~l1orized budget by whatever amount it wished by
fiat.
It was further submitted that the Social Contract Act and the
Sectoral Framework Agreement both provide that savings are to be
achieved in a fair and equitable manner.
That was why the
framework of the Joint Workplace Committee was established; to
determine how, within each establishment the savings could be
achieved, taking into consideration the particularities of that
establishment. A programme by programme cut hamstrings the ability
of the Joint workplace committee to do that.
The respondent suggests that no issue has been articulated by the
applicants and that if one has been, it is not a violation of the
Sectoral Framework Agreement. It further agrees that Bruce-Grey-
8
Owen Sound Health Unit has met its social contract obligations.
with reference to the Social Contract Act, it agrees that multiple
targets is specifically provided for .in Section 7 (2); 28 (2) (b) ;
38(1), etc., and in the Sectoral Framework Agreement at section
4.3.8.
"There will be savings targets for each establishment in
the health sector. These targets will be distributed
within each establishment by the Joint workplace
Committee in a fair and equitable manner. There will
also be a target based on the Clinical Education budget."
with reference to this last provision, it was argued that it is the
only section referring to setting of targets and it is clear that
it is the government that has that responsibility.
It was
suggested that there is no way to read the first sentence of that
section and conclude that a single target was contemplated.
It was acknowledged that there are references in the Social
Contract Act to a single target and, as a result, the most the
applicants can argue is that the issue is unclear.
The respondent also argued that establishing programme by programme
targets is consistent with the budgetary process which is allocated
on a programme basis. It was submitted that it is within the sole
purview of government to determine how, and where, money is to be
spent and a decision in favour of the applicants would have the
9
result of modifying the governments programme allocation. In
support of this proposition, reference was made to the supply Act,
1994 and the estimates made thereunder which indicates that monies
are allocated pursuant to specific votes.
The respondent also made reference to Section 1 (1) 6 of ontario
Regulation 714/93 made under the Social contract Act, 1993.
"The expenditure reduction target or targets established
under subsection 7(1) or (2) or 38(1) of the Act by the
Minister for the employer."
This, it was suggested, is further evidence of its position that
multiple targets can be established.
The respondent made reference to what it called "equitable issues".
It suggested that the way the applicants had proceeded was an
attempt to create illusory savings without the need to cut
spending. It further submitted that its approach assures that all
programmes are subjected to social contract savings and residents
of the Province are treated equally, no matter where they live.
The applicants approach; it was argued, would reduce over-all
social contract savings and fragment the delivery of services.
Finally, in responding to questions from the arbitrator as to how
the savings could be achieved on a programme basis, the respondent
acknowledged that significant difficulties would be created which
10
might not arise if savings were allocated on an establishment-wide
basis.
A useful starting point in analyzing. the issues raised by the
parties is to repeat what was said by counsel for the respondent in
his argument: "The arbitration must be decided solely on the basis
of the evidence presented". In that regard it must be noted that
the respondent chose not to call any evidence. What evidence there
is is the uncontradicted evidence of Mr. Muir. Ms. Diane McArthur,
a signatory on behalf of the Government of Ontario to a document
entitled "Memorandum Re Interpretation of the Broader Health Sector
Framework Agreement for Local Official Health Agencies" was present
throughout the arbitration but was not called on to testify.
The salient ele!!l~~ts of the evidence were:
1) The respondent was a party to the sectoral Framework
Agreement.
2) Budgets are allocated on a programme basis.
3) Monies allocated to one budget may not be spent in another.
4) The applicant achieved its social contract savings
obligations.
5) Bruce-Grey-Owen Sound Health Unit did not transfer money
between programmes to achieve its savings.
6) The Joint Workplace Committee identified and implemented
savings on an establishment basis following the hierarchy for
savings provided for in the social contract Act and
11
specifically section 4.1.2 sub-section of the Sectoral
Framework Agreement.
7) The government approved the plan to achieve savings as set out
in the Sectoral Framework Agreement by designating the plan as
a Sectoral Framework Agreement pursuant to Section 11(3) of
the Social Contract Act.
8) Bruce-Grey-Owen Sound Health unit did not over-spend its
allocated budget for any programme except one. That programme
was over-spent by approximately $300.
9) It is more difficult to accomplish savings on a programme
basis than an establishment-wide basis.
with this evidentiary background in mind, let us examine the
statutory framework. The social contract Act was enacted "to
preserve jobs and services while managing reductions in
expenditures..."
The above quotation is extracted from the title of the Social
Contract Act.
The government did not proceed to achieve those objectives
unilaterally. It co-opted the parties to take part in the process.
It did this by encouraging the parties to enter into sectoral and
local agreements in order to avoid the fail-safe provisions of the
Social Contract Act thus reducing the amount of savings they would
have to achieve.
12
The social Contract Act contains a preamble and a purpose section.
Both underline the thrust of the legislation - management and
unions are to act cooperatively to achieve the aims of the
Government.
"Preamble:
In order to ac~ieve significant savings in public sector
expenditures ~n a fair and equitable manner, the
Government is committed to facilitating negotiations
between representatives of public sector employers and
their employees for the purpose of maintaining effective
and efficient public services.
To this end, the Government invited public sector
employer and employee representatives and representatives
of independent health practitioners to negotiate a Social
Contract with the Government. During the negotiations,
which took place in April, May and June of 1993, the
Government tabled a framework agreement that included
provisions for:
savings through unpaid leaves of absence while
protecting public services and accommodating the
preference of individual employees.
job security including redeployment and training
and adjustment for employees.
the encouragement of efficiency and productivity
savings in the public .sector.
access to a fund to supplement une~ployment
insurance benefits or to permit the extension of
notice periods or to allow for retrainin~.
protection for those earning less than. $30,000. a
year.
It is desirable that legiSlation be enacted that carries
out the general intent of the framework social Contract
by encouraging negotiated settlements while recognizing
that a resolution is essential so that the nec~ssary
savings in public expenditures may be realized in a fair
and equitable manner.
Therefore, Her Majesty, by and with the advice and
13
consent of the Legislative Assembly of the province of
ontario , enacts as follows:
1. The purposes of this Act are as follows:
1. To encourage employers, bargaining agents and
employees to achieve savings through
agreements at the sectoral and local levels
primarily through adjustments in compensation
arrangements.
2. To maximize the preservation of public sector
jobs and services through improvements in
productivity, including the elimination of
waste and inefficiency.
3. To provide for expenditure. reduction for a
three-year period and to provide criteria and
mechanisms for achieving the reductions.
4. To provide for a job security fund.
The Sectoral Framework Agreement, to which Government was a party,
contains a purpose clause which seeks to achieve the same ends.
"Purnose:
It is the intention of the parties that this ~greement
embraces the following principles and objectives:
. the protection of services and programs;
. maximum job protection for current employees;
. the integrity of existing collective agreements
within the sector;
. full protection of existing pension righta and pay
equity obligations; and
. consistency and coordination with the reform of
Ontario's health care system which is ClU"rently
under way."
14
In Section 12 of the Social Contract Act the Government provided
specific direction on what it considered should be a part of each
sectoral framework agreement.
"12. In addition to the provisions referred to in
subsection 11 (3), persons seeking to negotiate the
contents of a sectoral framework may consider
including the following provisions in the
framework:
1. provisions relating to organizational
restructuring, including early retirement
options and labour adjustment programs.
2.
provisions relating to
productivity, including
waste and inefficiency.
improvements
the elimination
in
of
3.
Provisions relating
arrangements.
to
alternate
work
4. Provisions relating to the binding resolution
of disputes.
5. Provisions relating to the sharing of
information and decision-making by employers
and employee representatives, including the
sharing of financial and planning information.
6. provisions relating to sectoral bargaining.
7. provisions relating to the establishment of
joint committees at the sectoral and local
level.
8. Provisions relating to pensions, including the
joint trusteeship of pension funds.
9.
Any other provisions proposed by a party to
the negotiations.
The parties (including the Government) did not stop with a
statement of purpose.
They put in place a mechanism to achieve
15
those aims. The Joint Workplace Committee, referred to above in
this award and provided for in Section 12 of the Social Contract
Act, is fleshed out in the Sectoral Framework Agreement. It is to
ensure that savings are to be carried out as provided in Section
4.1.2. of the Sectoral Framework Agreement.
"The parties agree that the
realized for all the health
which this Agreement applies.
be accomplished in ways that:
targeted savings must be
sector establishments to
They commit that this will
. minimize disruption of both services and jobs;
. maximize opportunities for voluntary actions by
individuals and organizations;
. treat all employees in a fair and equitable manner;
and
. conform to the sequence for identifying savings
measures described herein.
The Joint Workplace Committee in Section 4.2 of the Sectoral
Framework Agreement, under the heading "Productivity Savings",
"will examine the opportunities through measures that eliminate
inefficiencies and promote increased prOductivity",
Compensation is another area the Joint Workplace Committee is to
identify savings and Section 4.3.2 of the Sectoral Framework
Agreement indicates where the savings are to be fo~nd:
"The Joint Workplace Committee will attempt to identify
compensation savings from the following measures:
16
(a) measurable savings from attrition, unfilled
vacancies and unreplaced leaves to the extent that
these exceed amounts already budgeted for;
(b) voluntary measures including, but not restricted to
unpaid leaves of absence, alternate work
arrangements, or voluntary exists;
(c) freeze wage/salary rates until March 31, 1996. If
this freeze commences later than June 14, 1993, and
where this delay results in an increase in total
compensation for the employees benefitting from it,
offsetting savings measures applicable to the
employees must be implemented;
(d) deferring or moderating merit adjustments or
movement through the salary grid for experience ~y
agreement of the bargaining agent. Where there ~s
no agreement and movement through the salary grid
is continued, which results in an increase in total
compensation for the employees benefitting from
these adjustments, offsetting savings provisions
applicable to those employees must be implemented;
(e) deferring insured benefit improvements which entail
additional costs, except for the purpose of
encouraging restructuring and adjustment;
(f) notwithstanding the above, nothing in this
agreement prevents a bargaining agent and an
employer from agreeing to compensation savings
applicable to employees in its bargaining ~it.
Section 5 of the Sectoral Framework Agreement speaks specifically
of rationalization of the work place and provides that to the
extent possible it should be carried out in way", to minimize
permanent employment loss.
It talks of ear~y retirement
incentives, the review of contracting out / in activities of the
establishment and retraining.
An appendix to the Sectoral Framework Agreement provides the
mandate of the Sectoral Framework Agreement.
17
"Joint Workplace Committee
Joint Workplace Committees will be established with
employer and employee representatives. Within the health
sector the mandate of the JWC will include the following
responsibilities.
· developing the implementation strategy for, or
subsequent revision of, the financial package;
. identifying, monitoring and implementing efficiency
and cost saving measures;
. with the agreement of the parties, carrying out the
duties of other joint committees including
budgetary and planning committees;
. developing workplace training and adjustment
strategies;
. reviewing the cost-effectiveness of contracting
in/out activity on a case by case basis;
. identifying opportunities for work restructuring;
. resolving disputes regarding local application of
the Social Contract;
. preparing and signing off on Social Contract
report(s);
· developing options for encouraging early retirement
and other voluntary exit incentives.
A review of all the above establishes, in my view, the context
Government sought with the Social Contract Act.
It is one of
cooperation between employers and unions. It is O~e in which the
parties are to look at establishments, as a whole, and identify
areas where savings can be achieved while minimizing the impact on
employees and services to the public. It is, to quote Section 1.2
of the Social Contract Act once again " to improve propuctivity and
eliminate waste and inefficiency". The whole thrust of the Social
18
Contract Act and Sectoral Framework Agreement is to have the
parties, employers and unions, look at the way to achieve savings
in as broad a context as possible. As the applicants point out,
there is no "whisper" of programmes; on the contrary, the review of
the Social Contract Act and Sectoral Framework Agreement indicates
the Government wished the parties to proceed and look at all
aspects of their establishment operations and, where possible,
rationalize them - find areas where productivity could be improved
and waste and inefficiency eliminated.
This runs contrary to the position taken by the respondents in this
case because if their arguments prevail none of the above would be
required.
Let us now turn to where there is reference to target or targets in
the Sectoral Fr2.lllework Agreement and Social Contract Act. In their
submissions, both parties pointed out that this was not a numbers
game - the one with the most "targets" or "target" would not
necessarily win. That did not stop them, however, from making
those references most advantageous to their position. Most of the
reference to target or targets has been referred to above in this
award and there is no need to repeat them.
In reviewing the references it is evident that where there is
reference to a single target that reference is unambiguous. The
reference is to a single target. As well, the word target is
19
always preceded by, or most often followed by the words
"established by the Minister".
It is the Minister that has
established a single target.
By comparison, the references to "targets" are less clear and in
some cases capable of more than one interpretation. Section 7 (1)
(2) of the Social Contract Act uses the word "targets" but it
precedes the phrase "every employer".
This section can be
interpreted to mean that multiple targets is used because the
reference is to more than one employer; it is to every employer in
the sector.
The respondent relied heavily on Section 4.3.8 of the Sectoral
Framework Agreement in support of its position. To repeat, Section
4.3.8 reads:
"There will be savings targets for each establishment in
the health sector. These targets will be distributed
within each establishment by the Joint Workplace
Committee in a fair and equitable manner. There will
also be a target based on the Clinical Education budget."
The employer argued it could bear only one interpretation. The
applicants responded that it is ambiguous because, ~~ain, there is
more than one establishment referred to in sentence one. They also
pointed out that the word targets could reflect the fact that there
is more than one Ministry funding Bruce-Grey-Owen SOQnd Health unit
programmes (the Ministry of the Environment as well as the Ministry
20
of Health) and this explains the reference to multiple targets.
Finally, they submitted that the third sentence of Section 4.3.8 is
pivotal. It is the only reference to a programme budget in either
the Social Contract Act or the Sectoral Framework Agreement. It
was submitted that the legal maxim exoressio unius est exclusio
alterius, which provides that the expression of one thing is the
exclusion of the other should be followed. So, having mentioned a
target for only one specific budget, it can be assumed that there
was no contemplation by the parties to the Sectoral Framework
Agreement, which includes Government, of specific and individual
targets applying to other budgets.
After reviewing ~~e references to target and targets it is my view
that the clearer interpretation is to a single target established
by the Minister for the Ministry of Health budget component in each
establishment. Those references are clear and unambiguous.
If it should be found that there is ambiguity, however, the
interpretation has to be made in light of the preamble and purpose
of the Social Contract Act and Sectoral Framework Agreement.
To find that multiple targets can be established frustrates the
preamble and purpose. The thrust of the preamble and purpose is to
allow the Joint Workplace Committee to perform its function and
look at each establishment to determine ways to increase
productivity and eliminate waste and inefficiency. The ability to
21
accomplish that purpose is rendered virtually impossible under the
multiple-target scheme. The task becomes too fragmented, there is
no way to look at an establishment at the macro level. The same
situation prevails with respect to the hierarchy that the Joint
Workplace Committee has to look at in accomplishing its work.
For example, do you establish an early retirement incentive
programme for the five employees in one programme but not the three
in another. Can this even be done practically speaking if the
hours of employees are divided among various programmes. Do you
say to an employee whose time is divided among different programmes
(receptionists, clerks, nurses, shippers) that to meet the
objective in one programme they have to take one-fifth of a Rae
day. The ridiculousness of the latter was acknowledged by counsel
for the respondent who stated that you would send the employee for
the day but pay that employee for four-fifths of the day not paying
them only for that portion of their day that they WQQld work in the
programme for which the Rae day was required.
More importantly, however, is that if the Government had wished to
proceed in the manner they did they could simply ~ave dictated a
4.40% roll-back and would not have required the SociAl Contract and
the infrastructure created by it. Why tell partie$ you have a say
in the manner in which savings will result and indicate what they
have to look at if you don't allow them to do it. ~hat would be
the result of multiple targets and that is why the ~ocial Contract
22
Act and the Sectoral Framework Agreement can not be interpreted in
that way, it would frustrate the intent and purpose of the Social
Contract Act and Sectoral Framework Agreement.
still dealing with this point, it was submitted by the respondent
that a determination of a single target would have the effect of
interfering wit!:. the prerogatives of the legislature and Government
in voting separate funds for each programme. There is no evidence
of that. The Q~contradicted evidence of Mr. Muir is that Bruce-
Grey-Owen Sound Health Unit lived within the programme by programme
budget.
At no time were any funds transferred from one budget
vote, or progr~e, to another.
Lastly, in dealing with this point, reference must be made to
Section 52 of the Social Contract Act.
"The provisions of this Act and the regulations prevail
over the provisions of any other Act and the regulations
thereunder but only to the extent necessary to carry out
the intent and purpose of this Act."
Thus, to the extent necessary, the Social Contract Act would
prevail over the Supply Act.
The submission of the respondent that Bruce-Grey-Owen Sound Health
Unit exceeded its budgetary allocation in those programmes where it
did not adhere to the 4.40% reduction is, in my view, a boot-strap
argument.
It can only succeed if they are correct with their
23
position of multiple targets in which case, in fact, programmes
were over-spent.
If they are wrong then there is only one
establishment-wide target. And if there is only one target for the
establishment, it didn't matter if Bruce-Grey-Owen Sound Health
Unit spent up to its limit in each programme i.e. beyond the 4.40%
individual programme reduction as long as the establishment-wide
target was met because the 4.40% individual programme reduction was
not permitted. It could not be said, therefore, if there is only
one establishment-wide target that Bruce-Grey-Owen Sound Health
Unit exceeded its allocated budget except in the one program where
its budget was exceeded by approximately $300.
The last point to be dealt with is the issue of equity raised by
the respondent. On a review of the evidence, it would appear that
the equities favour the respondents and not the applicants. First,
because the task of treating employees in "a fair and equitable" as
provided in the Social Contract Act (Section 11 (3) 5)-becomes that
much more difficult if not impossible as stated earlier in this
award.
"The plan will be fair and equitable in its application
to all employees."
Second, because the Government reaps a windfall with its
interpretation.
Mr. Muir testified that Bruce-Grey-Owen Sound
Health Unit met its target of $227,805. and that thi~ was achieved
in the manner provided for in the Sectoral Framework Agreement.
24
The Government, claiming that Bruce-Grey-owen Sound Health Unit did
not meet its programme by programme targets, reduced its allocated
budget to Bruce-Grey-Owen Sound Health Unit in those programmes by
the amount it claims was over-spent.
The result is that the
Government has benefitted from the initial savings of $227,805. and
will benefit f=t!'ler by whatever amount it claims was over-spent in
each programme by reducing its allocated budget.
The affect is
savings in excess of the $227,805.
That would breach the
provisions of Section 4.3.1 of the Sectoral Framework Agreement to
which the Government is a party.
liThe sum of the compensation savings achieved for the
purposes of this agreement through the measures
identified in this section will not exceed the targeted
savings for establishments."
Third, the decrease in funding will likely result in further
dislocation to employees of Bruce-Grey-Owen Sound Health Unit as
that establishment attempts to deal with the decre~sed funding.
Four, there may also be an affect on the way programmes are
delivered to the public thus adversely affecting the 'patients,
clients and users of Bruce-Grey-Owen Sound Health Unit services.
Thus, the equities favour the applicants and not th~ respondents.
In summary, I find that if the Government was simply interested in
reducing expenditures on an across the board basis by 4.40% as they
purported to do at Bruce-Grey-Owen Sound Health Unit, there would
25
be little if any need for the Social Contract Act, The Sectoral
Framework Agreement and the elaborate mechanisms established by the
two documents. A simple budgetary reduction of 4.40% would have
sufficed.
Instead the Social Contract Act was enacted.
Its
purpose goes beyond mere savings of dollars. It is to save dollars
through improve!:lents in productivity, including the elimination of
waste and inefficiency.
The Joint Workplace Committee was
established to accomplish that. Their ability to save dollars as
required in keeping with the purpose as well as ensuring that their
plan must, in the words of the Social Contract Act.
"be fair and equitable in its application to all
employees"
If the respondent is correct, the ability of the Joint Workplace
Committee to be fair and equitable is problematic and, according to
the respondent, the task is, at the very least, that much more
complicated and difficult.
There was no impingement of any Ministerial or legislative
prerogatives.
No budget was exceeded with the exception of one
budget by approximately $300., and no money was spent in other than
the programme for which it was allocated.
~avings were
accomplished in accordance with the provisions of the Sectoral
Framework Act.
Finally, to the extent that there is any ambiguity in the Sectoral
26
Framework Agreement or Social Contract Act, the interpretation
relied on by the applicants concords with the preamble and purpose
of the Social Contract Act.
The application succeeds. The declaration sought by the applicant
is granted. The Minister may not establish more than one Ministry
of Health social contract target for Bruce-Grey-OWen Sound Health
Unit. Multiple targets are a violation of the Sectoral Framework
Agreement.
I remain seized to deal with any further matter, including remedy,
that might arise from this award.
Signed in Nepean, this 28th day of February, 1996.
\~\\
M.B. Keller, Arbitrator