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HomeMy WebLinkAbout2002-1928.Policy.09-06-24 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2002-1928 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Policy) Association - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFOREVice-Chair Richard Brown FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell Barristers and Solicitors FOR THE EMPLOYER David Strang Ministry of Government Services Senior Counsel HEARING May 25 and June 1, 2009. - 2 - Decision [1]This dispute is about the legal status of minutes of settlement relating to education officers. AMAPCEO contends those minutes remain in force in their entirety. The employer claims part of the settlement is no longer enforceable, having been superseded by a later memorandum of agreement. [2]The relevant facts are not contested. No witnesses were called. Seventy-two documents were entered as exhibits.Two days of hearing were devoted to argument. Having carefully reviewed all of the evidence and submissions, I will not attempt to summarize them here. Instead, my comments are limited to the facts and arguments most pertinent to the issue at hand. I [3]The settlement for education officers was negotiated as a partial resolution of a policy grievance challenging the employer?s engagement of a large number of people to provide services to the provincial government. The contested individuals were treated as independent contractors or as employees of some entity other than the government. AMAPCEO contended they were actually employed by the government and had been engaged by it in contravention of the collective agreement. In the alternative, if they were not government employees, AMAPCEO contended their engagement contravened an implied term of the collective agreement. [4]Among those in dispute were teachers ?seconded? primarily from school boards to work for the Ministry of Education, typically for a number of years. AMAPCEO contended most of them, if not all, did the same sort of - 3 - work as employees classified as education officers. The Ministry did not apply the collective agreement to these teachers. They continued to be paid by their home boards, with the Ministry reimbursing the boards for this expense. The dispute about these teachers consumed numerous days before the Grievance Settlement Board, some devoted to mediation and others to fashioning an agreed statement of fact in preparation for adjudication. [5]A tentative settlement between AMAPCEO and the Ministry of Education was reached in October of 2007 and ratified by Management Board of Cabinet in late January or early February of 2008. The settlement reflected concessions on both sides. The employer agreed to create 58 new full-time education officer positions to be filled in accordance with the collective agreement. The employer also agreed that ?all persons working in education officer positions? were subject to the collective agreement, unless otherwise stated, and that ?non-AMAPCEO personnel? would not perform the functions of education officers. AMAPCEO agreed a specified number of teachers could be employed for a maximum of two years. These teachers would be governed by the collective agreement in most respects but would keep the benefit, pension and vacation entitlements offered by their home boards. The minutes of settlement are attached as Appendix ?A? to this decision. [6]In the summer of 2008, the employer initiated a consultation process with AMAPCEO and other bargaining agents about ?modernizing labour relations in the OPS.? At the outset, the employer identified several ?barriers? to modernization including: no stable and effective delineation of - 4 - jurisdiction? between AMAPCEO and OPSEU; and a ?lack of flexibility in the use of fee for service consultants and public sector secondees.? [7]In a written communication to the employer, dated August 22, AMAPCEO suggested using the education officer settlement as a model for dealing with secondees in general: AMAPCEO is also prepared to commit that, in respect of the broader public sector secondees issues, the principles of the Educational Officers settlement, voluntarily agreed to, could be applied, varying in detail in particular cases, to meet the employer?s particular needs. [8]On or about August 26 the employer issued two documents. The use of secondees was addressed in an undated document entitled ?Employer?s Response to Document entitled AMAPCEO Response ?August 22, 2008?: We recognize that you have suggested that the Educational Officers settlement that resulted from litigation be used as the basis of an agreement to permit the continued use of secondees. However, we simply cannot accept that such a settlement could be appropriately used as the foundation for a global resolution of the issues relating to the utilization of secondees. It continues to be the Employer?s position that it is necessary to ensure that the Government retains flexibility to use fee for service consultants and secondees from the broader public sector to ensure that the Employer can meet operational requirements when the Employer deems necessary. The aforementioned Educational Officers settlement would not satisfy that requirement on a go-forward basis and was a best-case negotiated result particular to that specific situation. [9]Also issued by the employer on or about August 26 was a second undated document entitled ?Update to Bargaining Agents about the Status of Bilateral Discussions.? In this document the employer expressed its desire to have ?full flexibility? to use secondees from the broader public sector. Another update, issued on August 31, included a detailed proposal about secondees that is substantially the same as the one found in the memorandum of agreement signed at the end of the consultation process. - 5 - On September 2, AMAPCEO posted on its website a critique of this update, noting the employer wanted to use secondees on a ?carte blanche? basis. [10]The employer presented a draft memorandum of agreement on September 9. Article 1(c) of the draft, dealing with the scope of the AMAPCEO bargaining unit, contained the following override clause relating to earlier settlements: The parties agree that this agreement amending the AMAPCEO recognition clause overrides and replaces all prior agreements and settlements between the parties concerning the recognition of AMAPCEO and the scope of the AMAPCEO bargaining unit and also, in respect of the seventh unit, OIC 243/94. The employer?s detailed proposal about secondees, first made on August 31, reappeared in the September 9 draft as article 3. [11] Negotiations continued throughout the night. There was no discussion between the parties about the relationship between the draft agreement and the settlement for education officers. AMAPCEO proposed a number of changes to the employer?s draft, including alterations to the override clause and the secondee proposal. The memorandum of agreement was signed the next day, September 10. It is reproduced as Appendix ?B? to this decision. [12] The override wording initially proposed by the employer was rewritten at AMAPCEO?s suggestion. The first sentence of the final version of article 1(c) states: The parties agree that this agreement amending the AMAPCEO recognition clause overrides and replaces all prior agreements and settlements between the parties concerning the recognition, treatment and scope of AMAPCEO as a tag-end bargaining unit, as well as replacing, in respect of the seventh unit, OIC 243/94. - 6 - Article 3 of the agreement deals with secondees from the broader public sector. The final version of this article states: The following shall apply until December 31, 2012: a.For the purposes of this section, the Broader Public Sector consists of any Government or other public entity. b.While in the workplace, secondees from the Broader Public Sector shall not perform duties normally performed by employees in the bargaining unit if it directly results in the lay-off of a bargaining unit employee. c.The Employer's use of secondees from the Broader Public Sector to perform bargaining unit work does not constitute a violation of the Collective Agreement provided that, unless the parties agree otherwise, the secondee from the Broader Public Sector is not seconded for a period of greater than 3 years. d.The Employer shall provide the union every six (6) months with a data file on secondees who perform AMAPCEO bargaining unit work, which shall include the following information fields: Ministry; work location; secondee name; start date; institution seconded from; and anticipated termination date. This article reflects two minor changes suggested by AMAPCEO, neither of which is relevant for present purposes: (1) the time limit in article 3(c) is 3 years, not 3 consecutive years as initially proposed; and (2) the words ?institution seconded from? were added to article 3(d). [13] The employer contends article 3 supersedes the provision in the settlement for education officers saying that ?non-AMAPCEO personnel? shall not perform the functions of education officers. AMAPCEO claims this provision remains in force, operating as an exception to the general rule about secondees found in the memorandum of agreement. [14] In support of this interpretation, AMAPCEO relies upon events preceding the agreement, which are recounted above, and also upon the employer?s conduct after September 10. On October 8, David Doherty, employee - 7 - relations advisor with the ministry, sent information to AMAPCEO in accordance with reporting requirements set out in the settlement for education officers. On November 22, Lisa Sherin, director of the ministry?s strategic business unit, advised AMAPCEO that a new full-time ?rotational? position would be filled in accordance with the settlement. (?Rotational? was the term used by the ministry to describe a position held by a teacher for less than two years.) It was not until December 20 that Ms. Sherin told AMAPCEO the memorandum would supersede the settlement for education officers as of December 31. In short, representatives of the Ministry of Education acted as if the settlement for education officers remained in effect during the months after the memorandum of agreement was signed on September 10. This conduct occurred in the context of a dispute about the effective date of the agreement, with the employer taking the position it was effective December 31. Given this dispute, I conclude the Ministry?s conduct in the fall of 2008 sheds no light on the relationship between the settlement and the September 10 agreement. [15] AMAPCEO also drew my attention to a proposal made by the employer to alter the configuration of bargaining units to the detriment of the bargaining agent. During the consultation process, the employer outlined a ?leading option? for the reform of bargaining structure whereby AMAPCEO would lose approximately 7,500 members and be left representing only about 2,500 supervisors. This tentative plan to cut AMAPCEO?s membership was put forward by the employer at the same time as it sought greater flexibility in the use of secondees and consultants. The plan was not implemented; the September 10 agreement made only minor changes to AMAPCEO?s bargaining unit. I recount the ?leading option? only because it was - 8 - addressed in argument. I do not intend to dwell on it. Whatever one might think about the propriety of the employer?s conduct, it is not relevant to the interpretative task before me. II [16] AMAPCEO cited the following decisions : Stelco Inc. (Hilton Works) and th (1989), 5 L.A.C. (4) 284 (Haefling); United Steelworkers of America (1998), 75 Toronto Transit Commission and Amalgamated Transit Union th L.A.C. (4) 180 (Davie); (2007) Ministry of the Environment and Younger 90 C.L.A.S. 109 (O?Neil); Ministry of Health and Long-Term Care and [2002] CANLII 45755 Ontario Public Service Employees Union (Abramsky); BG Checo International Ltd. v. British Columbia Hydro and , [1993] 1 S.C.R. 12; Lavin Agency Ltd. v. Blackhall & Co. Power Authority (2004), 185 O.A.C. 48; , [1971] Mechanical Pin Resetter v. Canadian Acme S.C.R. 228; (2008), 239 3869130 Canada Inc. v. I.C.B. Distribution Inc. O.A.C. 137; (2008), 236 O.A.C. 140; Burke v. Hudson?s Bay Company Ministry of Natural Resources and Ontario Public Service Employees Union [2003] CANLII 52916 (Kirkwood); Ottawa Hospital and Ontario Public th (2002), 105 L.A.C. (4) 134 (Kaplan); Service Employees UnionEurocan Pulp & Paper Co. and Communications, Energy and Paperworkers of th (1998), 72 L.A.C. (4) 153 (Munroe); CanadaQuaker Oats Co. of Canada th (2000), 91 L.A.C. (4) 1 (Emrich); and and Service Employees Union (2003), 75 National Press Club and Hospitality and Service Trades Union C.L.A.S. 295 (Grenville-Wood). [17] I was referred to several cases by the employer: Windsor Board of Education (1991), 52 O.A.C. 98; v. Windsor Women Teachers? Association Canada - 9 - th (1993) 34 L.A.C. (4) Post Corp. and Canadian Union of Postal Workers 139 (Swan); Cargill Ltd. and United Food and Commercial Workers Union th (1996), 54 L.A.C. (4) 76 (Koshman); Laurentian Hospital and Ontario th (1997), 69 L.A.C. (4 Nurses? Association) 234 (Stanley); Canada Post (2001), 99 L.A.C. (4th) 98 Corp. and Public Service Alliance of Canada (Frumkin). [18] I have carefully reviewed all of the cases cited. For present purposes, the most relevant are those involving the interpretation of a later contract which appears to contradict an earlier one.I limit my analysis to those cases. [19] AMAPCEO relies upon the decision of the Supreme Court of Canada in . The Court was called upon to interpret a contract Mechanical Pin Resetter between Acme and Mechanical. Mechanical held patents for automatic pinsetters used in bowling alleys.The contested contract, negotiated in 1963, granted to Acme the sole license to manufacture and sell the pinsetter, for the duration of the patents, ?throughout the world except Japan.? Based on a literal reading of this agreement, Acme claimed the exclusive right to sell the pinsetter in Canada. Mechanical contended the agreement applied only to the export market and not to Canada, saying the right to sell in Canada was vested in a third party, Brunswick. This contention rested on two earlier agreements, one between Mechanical and Brunswick and the other between Brunswick and Acme. In 1957 Mechanical had granted Brunswick the exclusive right to sell the pinsetter in Canada for the life of the patents. (Mechanical licensed Acme to serve as the manufacturer for pinsetters to be sold by Brunswick.) Brunswick and Acme then agreed all of the pinsetters made by Acme would be sold to Brunswick for a term of 15 - 10 - years. Construing the 1963 contract between Mechanical and Acme, Mr. Justice Judson wrote: The basis of the decision in the Court of Appeal ... was that there was no ambiguity in the new agreement and the words ?throughout the world except Japan? must be taken to mean what they say. The fallacy of this ratio is that these words do not stand alone. The new agreement has to be interpreted side by side with agreement 1 between Mechanical and Brunswick and agreement 2 between Brunswick and Acme. If this is done there is an argument and even a preponderance that the words cannot apply to the Canadian situation and Canadian sales. The real question in this appeal is as to the scope of the application of the new agreement, what it applies to not in isolation but when considered along with the other agreements and with the known situation of the parties themselves and one other party, who would undoubtedly be affected. (page 636; emphasis added) The word ?known? is a clear reference to what Acme knew about the previous agreements involving Brunswick. Admonishing the Court of Appeal for viewing the last contract in isolation, and then concluding it was unambiguous, the Supreme Court held that agreement should have been read together with the earlier ones. The Court went on to conclude the reference in the most recent contract to the ?world except Japan,? while not ambiguous on its face, really meant the world except Japan and Canada. [20] The employer contends the outcome in hinged on Mechanical Pin Resetter the participation of Brunswick, the third party, in the earlier contracts. In my view, it is more accurate to say the decision turned on what one party to the contested contract knew about the other contracting party?s expectation, knowledge that was based on the third party?s involvement in prior dealings. As the Court noted in the passage quoted above, when entering into the last agreement, Acme was aware Mechanical had already granted Canadian rights to Brunswick for the life of the patent. Indeed, Acme had agreed to produce pinsetters for Brunswick to sell in Canada. Based upon what had gone before, Acme should have realized Mechanical did not intend to give - 11 - Acme any claim to the Canadian market, even though their agreement appeared to grant rights to the whole world save for Japan. The Court ruled in favour of Mechanical to protect its legitimate contractual expectation, not to safeguard the third party. Awarding damages to Acme, based on its interpretation of the contract, would have undercut Mechanical?s reasonable expectation, but this sort of monetary remedy would have had no adverse affect on Brunswick. [21] The employer relies upon the decision in where the Laurentian Hospital settlement of a grievance was followed by an amendment to the collective agreement. The grievance had claimed the position of coordinator should be included in the bargaining unit. The parties settled their dispute by agreeing this position was a new classification in the unit, higher than the classification of registered nurse. The collective agreement in effect at the time did not allow bumping up and this contractual arrangement was referenced in the settlement: It is further acknowledged that only those currently in the same classification or a higher classification can bump into [coordinator] classification. The collective agreement was subsequently amended to allow bumping up. When nurses sought to bump up into the coordinator position, the employer argued the minutes of settlement precluded them from doing so. Rejecting this argument, Arbitrator Stanley wrote: Clearly, however, where the [amended] terms of a current collective agreement are inconsistent with Minutes of Settlement of a Grievance arising under a prior collective agreement the new collective agreement supersedes the prior Minutes of Settlement. If that were not the case, seeking to amend a collective agreement as a result of having had to settle a grievance would be a futile act. ? If there are particular elements of a grievance settlement that one party wants to preserve in the face of a newly negotiated collective agreement clause which would otherwise be inconsistent with that settlement, then the party seeking to preserve those elements of the settlement ought to bear the onus of doing that. (para. 28 to 30) - 12 - The arbitrator concluded the parties intended the amended collective agreement to supersede their settlement, because nothing had transpired between them to suggest the employer intended to preserve the earlier agreement. This decision was cited with approval and applied by Arbitrator Frumkin in Canada Post. [22] AMAPCEO cited as a case where the opposite result was Ottawa Hospital reached on analogous facts. The grievor there held an HRA position. Having lost a job competition for the higher-rated position of analyst, she settled the resulting grievance while involved in a second competition for the same job. Under the settlement, the grievor received back pay, based on the difference between the rates for the two jobs. She won the analyst job in the second round. The employer later ?promulgated? a wage standardization program that had retroactive effect. The start date for this program fell within the period for which the grievor had received back pay reflecting the analyst rate. The employer calculated her retroactive payment, for the purpose of wage standardization, based on the analyst rate. She would have received a larger retroactive payment if the employer had used the rate for the HRA job which she was actually performing on the effective date. The grievor claimed the larger amount. Arbitrator Kaplan rejected her claim because he saw it as an attempt to renege on the settlement. [23] I do not view this decision as being out of step with the approach taken in . The question in was whether the Laurentian HospitalOttawa Hospital settlement was binding in relation to the grievor?s rate of pay during a period that preceded the resolution of the grievance. Moreover, wage standardization was a unilateral management initiative and did not result - 13 - from an agreement between the employer and union. In this context, Arbitrator Kaplan was not required to consider whether the prospective application of a settlement was terminated by another understanding between the parties to the collective agreement. ( I note this issue also did not arise in , another cased cited by AMAPCEO.) That National Press Club was precisely the issue in . Laurentian Hospital III [24] What general principles emerge from the cases reviewed, about whether a settlement is superseded by a later accord between the same parties, where a literal reading of a general provision in the second agreement contradicts a specific provision found in the first? [25] As stated in , the most recent agreement trumps the Laurentian Hospital previous one if there is no good reason to conclude the parties intended otherwise. When the parties there amended their collective agreement, nothing happened between them to suggest the employer did not intend the amendment to prevail over the prior settlement. In the absence of any such suggestion, Arbitrator Stanley sustained the union?s argument that the amended collective agreement prevailed over the settlement. [26] An earlier agreement is not superseded by a later one negotiated in circumstances indicating the parties intended the two contracts to operate together. This is the lesson of That case did not Mechanical Pin Resetter. involve successive agreements between the same parties, but its implications for such a scenario can be illustrated by considering how the ruling would apply to a hypothetical situation that is a variation on the facts at hand. - 14 - Assume the following exchange occurred after the employer had tabled its detailed proposal about secondees: AMAPCEO asked whether it was intended to supersede any part of the settlement relating to education officers and the employer answered in the negative. Assume the memorandum of agreement was signed after this discussion. The Supreme Court?s reasoning in would preclude a literal reading of the Mechanical Pin Resetter memorandum of agreement in these hypothetical circumstances. The employer would have entered into the agreement knowing AMAPCEO did not intend it to supersede the settlement, just as Acme knew Mechanical did not mean to grant distribution rights for Canada. In this setting, the memorandum of agreement would have to be read with an eye to what was said about the settlement during negotiations and to the settlement itself. The most recent agreement would be read as establishing a general rule about secondees that was subject to an exception found in the settlement. This interpretative approach would be the proper one even though the last agreement, like the contested contract in , is not the Mechanical Pin Resetter least ambiguous on its face. [27] How do these principles apply to the facts at hand? In the run-up to the memorandum of agreement, the parties did not discuss what effect it would have on the settlement for education officers. Did anything else transpire between them that sheds light on the proper interpretation of the September agreement? AMAPCEO relies upon two things that happened: (1) the employer?s reply to the bargaining agent?s suggestion about using the settlement as a model for dealing with secondees in general; and (2) AMAPCEO?S response to the employer?s proposal for an override clause. The import of these events is addressed below. - 15 - IV [28] I will consider first the evolution of the override clause in article 1(c) of the memorandum of agreement. If the employer?s initial proposal had prevailed, the agreement would have overridden all settlements concerning ?the recognition of AMAPCEO and the scope of the AMAPCEO bargaining unit.? At the suggestion of the bargaining agent, the reach of this clause was narrowed to settlements relating to ?the recognition, treatment and scope of AMAPCEO ? (emphasis added). as a tag-end bargaining unit [29] The education officer settlement is not affected by the final version of article 1(c) because the settlement does not concern ?a tag-end bargaining unit.? AMAPCEO contends the wording first proposed by the employer would have overridden this settlement because it relates to ?the recognition of AMAPCEO and the scope of the AMAPCEO bargaining unit.? The bargaining agent contends the change made to the wording of article 1(c) indicates the parties intended to leave the settlement in place. [30] The logic of this argument has ramifications beyond the settlement for education officers, as the employer noted. Numerous other settlements, reached in the course of addressing the policy grievance, preclude the employer from having certain work performed by ?non-AMAPCEO personnel.? This term is sufficiently broad to include secondees from the broader public sector. If the change made to the wording of article 1(c) preserves the settlement for education officers, the same change also preserves the other settlements and, thereby, precludes the use of a secondee to do work governed by them. - 16 - [31] The employer takes issue with the characterization of any of these settlements as relating to recognition and bargaining-unit scope. As suggested by the employer, the purest example of a dispute about the recognition of a bargaining agent and the scope of its unit relates to the type of work performed by employees within the unit. (I note this was the sort of dispute resolved by yet another settlement, unrelated to the policy grievance, that AMAPCEO views as saved by the reworking or article 1(c), the ?Tier II? settlement dated September 8, 2004.). [32] The crux of the dispute underlying the policy grievance was not whether AMAPCEO would represent public servants doing the sort of work in question. If that was an issue at all, it was a peripheral one. The central issue was whether the utilization of non-public servants violated the collective agreement. Characterizing the use of non-public servants as ?contracting in,? AMAPCEO argued their engagement was prohibited by an implied term of the collective agreement. The argument in favour of implying such a prohibition is that it is necessary to prevent the employer from undermining the express terms of the agreement, including not only those relating to recognition and scope of the unit but also those fixing remuneration and governing job competitions. In this sense, the policy grievance could be seen as indirectly related to matters of recognition and unit scope. [33] Does this indirect relationship, coupled with the rewording of article 1(c) so as to override only ?tag-end? settlements about recognition and scope, indicate the parties intended to preserve any settlements arising out of the policy grievance? If that was AMAPCEO?s intention, it was not disclosed to - 17 - the employer. In my view, the indirect relationship is not sufficient to conclude that the employer, acting reasonably, should have deduced what the bargaining agent sought to accomplish by altering the override language. For these reasons, I do not view the change made to article 1(c) of the agreement as supporting AMAPCEO?s narrow reading of article 3 dealing with secondees. [34] AMAPCEO made another argument about the override clause, this one based solely upon its final version.Noting this clause expressly overrides some settlements, AMAPCEO contends the agreement?s silence about other settlements implies they are preserved. The essence of this argument is captured by the Latin maxim . The expressio unius est exclusio alterius override clause negates only settlements relating to ?the recognition, treatment and scope of AMAPCEO as a tag-end bargaining unit.? The ?tag- end qualifier in this formulation does suggest the parties intended to preserve other settlements, directly related to the recognition, treatment and scope of AMAPCEO?s unit, that have no ?tag-end? component. Nonetheless, I do not read the override clause as implicitly preserving the settlement for education officers because it?s relationship to matters of recognition and unit scope is indirect. V [35] Early in the consultation process, after the employer had expressed concern about a lack of flexibility in the use of secondees, AMAPCEO suggested using the settlement for education officers as a model for dealing with secondments in general. In its written response, the employer reiterated its need for ?flexibility? in the use of secondees and made the following remark: - 18 - The aforementioned Educational Officers settlement would not satisfy that requirement on a go-forward basis and was a best-case negotiated result particular to that specific situation. This reply expressly rejected the idea of using the settlement as a model for dealing with secondees on a global basis. In the course of doing so, the employer described the settlement as a ?best-case negotiated result? for the specific situation of education officers. In my view, a reasonable person would understand this description to mean the government remained satisfied with the settlement, which had been ratified by management board of cabinet just six months before, and was not seeking to limit its prospective application. The employer should have realized this is how its statement would be construed. [36] I do not read the comment posted on AMAPCEO?s website as indicating the bargaining agent had a different understanding of the employer?s intention. The statement about the employer wanting to use secondees on a ?carte blanche basis? was part of a message to employees designed to enlist their support. With this purpose in mind, one would not expect the website to provide a detailed account of everything that had transpired between the parties, including the exchange about education officers. [37] That discussion was the backdrop against which the employer made a detailed proposal about secondments and the parties signed the memorandum of agreement. On its face, the agreement permits unlimited use of secondees until the end of 2012, so long as layoffs do not result. Following the lead of the Supreme Court in , I Mechanical Pin Resetter conclude the agreement should not be read in isolation. Rather it should be construed with a view to the recent settlement and what was said about it - 19 - during the discussions leading up to the contested agreement. The employer?s statement, indicating it was not resiling from the settlement, is very significant. Based on this comment, I read article 3 of the memorandum of agreement as not applying to secondees governed by the settlement. [38] The minutes of settlement relating to education officers remain fully in force and are not superseded in any way by the September 10 memorandum of agreement. th Dated at Toronto this 24 day of June 2009. Richard Brown, Vice-Chair óîðó APPENDIX ?A? óîïó óîîó óîíó APPENDIX ?B? óîìó óîëó óîêó óîéó óîèó