HomeMy WebLinkAbout2011-0110.Union.12-07-17 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2011-0110
UNION#2011-0999-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
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The Crown in Right of Ontario
(Ministry of Government Services) Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Stewart McMahon
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
February 24 and May 23, 2012.
Decision
[1] The union has filed a policy grievance contesting, in a number of ways, the
manner in which the employer interprets and administers Article 20.8 of the collective
agreement. The employer has asked that certain portions of the union’s claim be dismissed on a
preliminary basis as, the employer asserts, the union has failed to establish a prima facie case in
those instances.
[2] Article 20 (in which Article 20.8 is of course found) is titled Employment
Stability and is comprised of some 14 pages of collective agreement provisions. It is an elaborate
and detailed set of job security provisions. As will be seen, it will not be necessary for me to set
out and consider this intricate scheme in elaborate detail for the purposes of the instant decision.
The parties, in their submissions before me, provided a summary analysis of the central workings
of these provisions and, again for the purposes of the instant decision, the broad central
parameters of the scheme are not in dispute.
[3] The instant grievance focuses on one aspect of the scheme which provides
employees who have been declared surplus with “eligibility for assignment into temporary
assignments in their own ministry in the last two (2) months of their notice.” It is the nature of
these opportunities and the manner in which they are made available which is at the heart of the
current dispute.
[4] While Article 20.8.1 is at the centre of the parties’ interpretive dispute, I set out
Article 20.8 in its entirety:
20.8.1 Surplus employees shall be eligible for assignment into temporary
assignments in their own ministry in the last two (2) months of their
notice. Such assignments are meant to provide additional employment
opportunities for surplus employees prior to lay-off. Where more than
one surplus employee matches the temporary assignment, the
employee with greater seniority shall be offered the temporary
assignment. It is understood that such assignment of a surplus
employee to a temporary vacancy has priority over Article 8
(Temporary Assignments).
20.8.2 A surplus employee shall retain his or her status in the Regular Service
and current salary entitlement while placed in a temporary assignment.
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Placement in a temporary assignment will not constitute a promotion
for pay purposes. Subject to Article 20.8.1, for placement into
temporary assignments, the employer shall use the same criteria and
rules as for assignment into vacancies under Article 20.3
(Redeployment).
20.8.3 An offer of temporary assignment to a surplus employee must be in
writing and must specify the duration of the temporary assignment.
The surplus employee shall have five (5) working days in which to
accept or reject the offer of a temporary assignment.
20.8.4 Surplus employees who are occupying a temporary assignment remain
eligible for assignment to permanent vacancies in accordance with the
provisions of Article 20.3 (Redeployment) throughout their temporary
assignment, but shall not continue to be matched to other temporary
assignments during the term of the temporary assignment; however,
the original temporary assignment may be extended by a maximum of
three (3) months.
20.8.5 Where an employee in a temporary assignment is assigned to a
permanent vacancy, the reporting date to the permanent position shall
be no later than one (1) month from the date of offer, unless otherwise
mutually agreed upon with the employee, the ministry with the
permanent vacancy and the ministry with the temporary assignment.
20.8.6 When a temporary assignment takes place, the employee shall not be
unreasonably denied the opportunity to complete any portion of
training already underway. Surplus employees who refuse a temporary
assignment shall continue to be considered for assignment into
permanent vacancies for the duration of the surplus notice period, but
not for further temporary assignments.
[5] In response to the employer’s request, the union filed particulars of its claim.
Included in those particulars (which blend asserted facts and legal argument) are the following:
1. Despite the requirements of article 20.8, the Employer has failed to
ensure that there is any means of tracking temporary vacancies for which
posting is not required by Article 8 of the Collective Agreement.
Furthermore, the Employer has failed to ensure a system of matching
such temporary vacancies with surplus employees, or to make any
arrangements for the tracking or matching. Article 20.8 entitles
employees in the last two months of their surplus notice period to
placement into temporary vacancies in their own Ministry. Appendix 40
requires the Employer to encourage Ministries to place employees who
are “Impacted Employees" within the meaning of Appendix 40 into
temporary vacancies within their own Ministries.
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2. The absence of any mechanism for identifying or tracking such
vacancies, and for matching such vacancies to surplus employees, is a
failure by the Employer to properly administer Article 20.8 of the
Collective Agreement.
…
6. The Employer is in violation of Article 20.8 by not considering
temporary positions occupied by Fixed Term Employees [“FXT”] which
are coming up for renewal. By failing to consider such positions, the
Employer is improperly subordinating the Article 20.8 rights of surplus
employees to Fixed Term employees. Neither the Ministries nor the
Redeployment Services Office of the Ministry of Government Service[s]
are considering existing assignments to FXT employees to determine
whether a viable vacancy exists for assignment to a surplus Regular
employee. Temporary positions occupied by Fixed Term [employees]
which are coming up for renewal should be considered for assignment to
surplus employees rather than being renewed.
7. The same is true of temporary positions occupied by FXT employees
which are not coming up for renewal. It is OPSEU’s position that surplus
employees should displace FXT employees in temporary assignments
and have the right to do so pursuant to Article 20.8 of the Collective
Agreement. Failure to assign such vacancies to surplus employees is a
violation of Article 20.8.
8. Furthermore, the Employer is failing to make available to surplus
employees temporary assignments filled on an acting basis by other
regular employees. The failure to return the acting employees to their
home positions and make the temporary assignments available to surplus
employees is a violation of Article 20.8.
[6] It is in respect of these portions of the union’s particulars that the employer asserts
that no prima facie case of a violation of the collective agreement has been made out. There are
essentially two issues (the latter involving three sub-categories):
[7] The union claims that the employer’s failure to implement any system for tracking
appropriate available vacancies and matching them for assignment to eligible surplus employees
is a violation of the collective agreement.
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[8] The union also claims that the employer’s failure to consider any of the following
as constituting appropriate opportunities for temporary assignments for surplus employees is also
a violation. Surplus employees, submits the union, ought to be offered temporary assignments in
the following circumstances:
• Where an FXT contract comes to an end and where there is an ongoing
(if time limited) need for the work to be done, a temporary assignment to
a surplus employee ought to prevail over any renewal of an expired or
expiring contract.
• Temporary assignments ought to be made available to surplus employees
by permitting them to displace:
a) FXT employees during the term of their FXT contracts
b) Regular employees in acting assignments (the
displaced employee to return to their home position)
[9] Before addressing the employer’s motion in relation to each of the concerns just
articulated, it will be useful to briefly consider a more general theme sounded frequently in the
employer’s submissions. It emerges primarily from the fact that the instant case involves a
policy and not an individual grievance. There is no claim that any specific individual employee
has been denied the right to any particular temporary assignment contrary to the collective
agreement. The employer suggests that if and when that happens, there will then be a more
appropriate moment to resolve the parties’ collective agreement interpretation dispute.
[10] This submission is not without merit. I am not persuaded, however, that it should
be permitted to afford the employer a complete defence to the instant grievance. While there
may be remedial difficulties – indeed any remedy, even if the union is ultimately successful in
the instant case, may, of necessity, be little more than declarative in nature. However, it is
abundantly clear that the parties have joined issue, even in the relatively factually limited context
of this policy grievance, with respect to the proper interpretation of the collective agreement.
And while it is not necessary for me to do so, I can also take notice of the fact that the current
workplace context is one in which the provisions of Article 20 (including Article 20.8) may be of
increasingly important practical application. I also take note that individual grievances regarding
the application of Article 20 – particularly in cases involving impugned job assignments – can
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generate complicated and protracted litigation and may give rise to remedial challenges affecting
employees well beyond those who merely file successful grievances. In that context and where
the parties are clearly able to identify interpretive disputes, the collective bargaining system and
the parties themselves are far better served by having those interpretive disputes resolved sooner
rather than later.
[11] I turn first to what the parties sometimes referred to as the “track & match” issue.
The employer accepts, for the purpose of the preliminary motion, that, notwithstanding the
provisions of Article 20.8 which confer some eligibility for temporary assignments on surplus
employees, there is no system in place to track the availability of such temporary assignments
and to match same with appropriate eligible surplus employees. The employer advances two
variations of its interpretive position.
[12] First, there is simply no explicit language to be found in Article 20.8, or anywhere
else in the collective agreement, requiring the employer to “track & match” possible temporary
assignments. Article 20 provides an elaborate and complete code of the parties’ rights and
obligations with respect to employment stability. If a right/obligation is not found within the
four corners of that complete code, that means the parties have failed to negotiate it. The union
simply cannot ask that this Board create and insert such an item into the collective agreement.
[13] In a variation on that submission, the employer points to other provisions of
Article 20, notably Articles 20.16 (Job Registry System) and 20.17 (Monitoring and Reporting).
It is not necessary to set these out in full; it is sufficient to note that these provide “track &
match” rights and obligations with respect to certain other vacancies. There is no dispute
between the parties, however, that these provisions are not applicable to the types of temporary
assignments which here concern us. And again, though perhaps with increased vigour, the
employer argues (merging its “complete code” submissions with an application of the classic
expessio unius principle), rights must be found in the parties’ bargain. Where they are not, and,
particularly when similar rights have been negotiated in other parts of the collective agreement
(and within those provisions that comprise the “code” with respect to employment stability), they
simply cannot be freshly manufactured by the union or by this Board.
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[14] For its part, the union acknowledges that Articles 20.16 and 20.17 do not apply to
the types of assignments here under consideration and that there is no explicit provision of the
agreement requiring any specific “track & match” system in respect of temporary assignments.
However, while the union would undoubtedly be pleased if the employer chose to apply Articles
20.16 and 20.17, mutatis mutandis, it acknowledges that the employer is under no obligation to
do so. But, the union argues, in what is perhaps a modified application of the principle that
rights without remedies or, perhaps more accurately, without any means of practical operation,
are thereby rendered nugatory. What might or might not constitute an adequate mechanism or
administrative practice in respect of temporary assignments to eligible surplus employees is, at
least in this stage of the proceedings, neither here nor there. To have no system or practice
whatsoever (a fact I must accept as true for the purposes of the employer’s motion) is to fail to
give effect to the rights conferred on eligible surplus employees.
[15] Having considered the positions of the parties, I am satisfied that this branch of
the employer’s preliminary motion must be dismissed. I note, although the parties did not refer to
it for this purpose, that the use of the word “matched” in Article 20.8.4 appears to be consistent
with the existence of some form of “track & match” requirement. In any event, simply accepting,
as I must for the present purposes, that the employer has no mechanism, system or practice in
place to operationalize the rights of surplus employees eligible for temporary assignments, the
employer has failed to persuade me that the union has failed to make out a prima facie case. This
conclusion is, of course, not a determination of the union’s claim. I am simply not persuaded that
the claim must be dismissed at this stage on the basis of the employer’s preliminary motion.
[16] The second branch of the employer’s motion relates to the types of temporary
assignments for which surplus employees are said to be eligible. The union asserts that under
Article 20.8 surplus employees ought to be afforded temporary assignments when the term of an
FXT employee’s contract ends (and would otherwise be renewed). Additionally, the union
asserts that temporary assignments should be conferred upon eligible surplus employees even to
the extent of permitting them to displace FXT employees from their existing contracts or regular
employees from their acting assignments (assuming the latter can then return to their home
positions).
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[17] The employer focuses on the centrality of the term “vacancies” in the operation of
Article 20.8, indeed, in the operation of Article 20 in its entirety. With a single exception all of
the mechanisms providing job security under Article 20 depend upon the existence of vacancies.
The only exception is Article 20.4 which permits, in the circumstances described therein, a
surplus employee to displace another bargaining unit employee. There is no dispute, however,
that Article 20.4 applies to the temporary assignments here under consideration – it does not.
[18] The provisions of Article 20.4 are elaborate and fine in their details. I have not
set them out here because, for our current purposes, it is sufficient to note (and the parties were
in agreement on the point), that the displacement provisions provide a surplus employee with a
single opportunity to exercise “bumping rights”. This has been referred to, in other contexts, as a
provision which provides “the best bump of the day”. The right only arises at a single moment
in time and if an appropriate “bump” cannot be found as of that point in time, the right is spent, it
does not continue.
[19] The union disputes the centrality of the term vacancy, at least in the operation of
Article 20.8. It points out that the provision speaks more often of “temporary assignments” than
it does of “vacancies” and asserts that a temporary assignment is just that and need not be tied to
the existence of a vacancy. Further and particularly in relation to the claim of permitting
displacements, the union reminds me that I ought to permit employees to enjoy the full benefit of
their seniority rights. From that perspective the rights of surplus employees on the brink of
layoff ought to prevail over those of FXT employees, who have limited seniority rights (or even
over the rights of regular employees in acting positions in respect of any claim to that position).
[20] There are, broadly speaking, two interpretive contests here. I am prepared, at this
stage in the proceedings to determine one but not the other.
[21] I am satisfied that, insofar as it advances a claim tantamount to displacement
rights, the union has, in this instance, failed to make out a prima facie case.
[22] While similar concerns regarding a “complete code” of collective agreement
provisions and the presence of a similar claimed right (in this case, displacement) in another
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express context, are present here, there is an additional factor which permits, indeed, in my view,
requires me to dispose of this aspect of the employer’s motion differently. This is not the union
asserting, as it did in its “track & match” argument, that the employer must have some manner of
operationalizing collective agreement rights. In this case, the union asserts that the bundle of
rights which are conferred on surplus employees must include the type of displacement rights
outlined earlier. I see no basis for this claim. The importance and significance of displacement
rights cannot be overstated. Here the parties have clearly outlined their nature and scope. There
is no mention whatsoever of displacement rights in the context of the rights of eligible
employees to temporary assignments. (I note, as well, that the rights under Article 20.8 – unlike
those under Article 20.4 which are frozen in a particular moment of time – are ongoing ones,
Thus, the displacement rights the union now advocates would potentially have a broader
temporal application than those the parties sought fit to explicitly include in their collective
agreement.) I see no basis upon which to conclude that the absence of express collective
agreement provisions conferring the asserted rights was either accidental or otherwise
insignificant. More importantly, the existence of such rights are not necessarily integral to the
proper functioning of the collective agreement. In other words, the claim that there must be
some system to operationalize rights is qualitatively different from a claim that those rights must
include displacement rights.
[23] I am satisfied that the union has failed to make out a prima facie case in respect of
its claim for the existence of displacement rights and that the employer’s motion must therefore
be allowed in respect of that claim.
[24] I am unable, however, to arrive at a similar conclusion with respect to the claim
that the employer’s uniform refusal (again, a fact I assume to be true for the purposes of this
decision) to consider the assignment of a surplus employee in lieu of the renewal of an FXT
contract, does not give rise to a prima facie case. I do not and need not resolve the parties
competing interpretive approaches and the relative importance of the terms “vacancy” and
“temporary assignment”. Even accepting without deciding that a “vacancy” is required before
any Article 20.8 right can operate, I am not persuaded that the union fails to make out a prima
facie case that the moment at which an FXT contract is renewed (perhaps even extended) might
be a time at which a vacancy exists within the meaning of the collective agreement. Whether or
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not that view ultimately prevails, it is not one that I am prepared to dismiss at the employer’s
behest on the basis of a preliminary motion.
[25] In summary, having regard to the foregoing, the employer’s motion is allowed in
respect of the union’s claims for displacement rights as set out above. In all other respects it is
dismissed.
Dated at Toronto this 17th day of July 2012.
Bram Herlich, Vice-Chair