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HomeMy WebLinkAbout2011-0111.Union.12-07-31 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-0111 UNION#2011-0999-0011 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 - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Paul Meier Ministry of Government Services Legal Services Counsel HEARING September 16 and November 1, 2011 Decision [1] In a grievance dated March 7, 2011, the Union claims that “the employer has violated the collective agreement, including Appendix 38, by retaining consultants while laying off surplus employees that should be considered for and matched to the opportunities.” There was no challenge to the Board’s jurisdiction to hear and decide this matter. [2] The grievance was filed in response to the Employer’s decision to lay-off System Officers (“SOs”) while at the same time retaining the services of IT Consultants to perform information and information technology work (“IT work”). An IT Consultant is a person who is not within the Union’s bargaining unit. There were two SOs who had moved through the lay-off process provided for in article 20 of the Collective Agreement to the point of being laid off. The Employer does not inquire as to whether an SO subject to lay-off can perform the IT work being performed by an IT Consultant prior to the SO being laid off. In this grievance, the central position advanced by the Union is that the Employer cannot lay-off an SO while retaining the services of an IT Consultant if the SO is capable of doing the work performed by the IT Consultant. The Union asserts that article 20 of the Collective Agreement requires the Employer in these circumstances to assign the relevant IT work to the SO, whether that work is permanent or temporary. The Union argues that the failure of the Employer to respond in this way constitutes a violation of section 5 of Appendix 38 and article 20 of the Collective Agreement. [3] The parties did not call viva voce evidence. Counsel provided me with an agreed statement of facts for the purpose of addressing the issues raised by the grievance. Counsel then made submissions relating to the interpretation of the relevant Collective Agreement provisions. - 2 - At this stage, the parties agreed that the task before me is to determine whether paragraph 5 of Appendix 38 and article 20 have the effect of requiring the Employer to review the work performed by IT Consultants to see if that work can be assigned to an SO before the actual lay- off of the SO takes effect. [4] Although the statement of facts makes reference to a number of SOs being issued a notice of lay-off, both before and after the grievance was filed, it is sufficient for our purposes to reference the two employees who were actually laid off from the bargaining unit. Ms. Kam was a Programmer, SO2, on the Ontario Clean Water Agency’s (“OCWA”) Application Development Team. In 2009, OCWA reviewed its operational requirements and decided that the SO2 Programmer position was no longer required. Rather, OCWA created a new Data Base Administrator position at the SO5 level based on its operational needs. It filled this higher Union classification in accordance with the job competition provisions of the Collective Agreement. On or about January 27, 2010, OCWA provided Ms. Kam with advance notice of her lay-off (projected to be August 10, 2010) in accordance with article 20.1.2.1 of the Collective Agreement. In its letter, OCWA outlined the following options available to Ms. Kam on receipt of her official written notice of lay-off: - to request pay in lieu of notice (article 20.2). - to remain available for redeployment during the six (6) month notice period to be considered for direct assignment to an applicable vacancy with the OPS if one becomes available (with the option to broaden her geographic parameters beyond 40 km and specify the locations to which she would locate) (article 20.3). - to remain on notice and, failing a direct assignment to a vacancy within the first five (5) months of her notice period, to be eligible to displace another employee (with the option to displace an employee outside a 40 km radius (article 20.4). - 3 - On or about February 10, 2010, Ms. Kam selected direct assignment to a vacancy (redeployment). In response to the question: “If we are unable to identify a vacancy for assignment within 40 km of your headquarters, do you wish to be considered for vacancies beyond 40 km?”, Ms. Kam responded “No”. In response to the question: “If a displacement opportunity is not available with the ministry, within 40 km of your headquarters, do you wish to be considered for displacement into a position within the ministry beyond 40 km?”, Ms. Kam indicated “No”. On or about February 11, 2010, Ms. Kam received her “official written notice of lay-off” effective February 11, 2010, with her projected lay-off date as August 10, 2010. The Redeployment Service Office of the Ministry of Government Services (“RSO”) reviewed 137 vacant positions across the OPS in accordance with Ms. Kam’s geographic and salary parameters (e.g., Service Desk Order Analyst, Application Support Analyst, Helpdesk Officer, Systems Officer). No redeployment match was found. This review of positions did not involve any review of work or duties being performed by IT Consultants. On or about October 15, 2010, Ms. Kam was laid off after OCWA extended her notice period to finalize the displacement search. [5] Mr. Robert Rheinheimer was a User Support Officer, SO2, providing IT support to staff in the Ministry of Municipal Affairs and Housing’s Landlord and Tenant Board (LTB) through the Community Services I&IT Cluster (“CSC”). He was the only employee in the User Support Officer position in the Branch. After reviewing this position, the CSC determined that there was insufficient work to justify a full-time position. The work Mr. Rheinheimer had been performing no longer existed. More specifically, the work of answering inquiries concerning the LTB’s Case Management System, and its transition from a legacy system to a new platform in 2009, had greatly diminished. The little work that was left had been absorbed by the I&IT Common Service Desk or by Branch staff (by Systems Analysts at the SO3 and SO4 level), if - 4 - required. The CSC provided Mr. Rheinheimer with advance notice of lay-off on or about October 7, 2009. From this point, the CSC followed the same steps as OCWA did with Ms. Kam. Mr. Rheinheimer was advised that his lay-off date would be April 26, 2010, and at the appropriate time he selected direct assignment to a vacancy (redeployment). The RSO reviewed 319 vacant positions across the OPS in accordance with Mr. Rheinheimer’s geographic and salary parameters (e.g. Application Support Analyst, IT Trainer Systems Officer, Service Desk Order Analyst, Helpdesk Officer). No redeployment match was found. This review of positions did not involve any review of work or duties being performed by IT Consultants. On or about April 29, 2011, Mr. Rheinheimer was laid off from the OPS. [6] Before highlighting the submissions of counsel, it is useful to briefly review some matters that provide the context for their submissions. These matters are the relevant terms of article 20 of the Collective Agreement, the bargaining unit integrity (“BUI”) jurisprudence and the terms of Appendix 38. [7] The heading for article 20 is “Employment Stability”. As the first section of the article indicates, it applies “Where a layoff may occur for any reason…” The lengthy article addresses the identification of a surplus employee, the issuing of a lay-off notice and the subjects of redeployment, displacement, lay-off and recall. Many of the sections of this article were referenced in the above descriptions of what happened to Ms. Kam and Mr. Rheinheimer. Once an employee has been declared surplus and made his or her election under 20.1.2.2, he or she will be issued a notice of lay-off pursuant to section 20.2. The employee is entitled to six months notice of lay-off. The sections that are particularly relevant to this case are those which address redeployment. Section 20.03 provides that the employee is entitled to be assigned to a vacant - 5 - position within certain parameters, one of them being “that the vacant position is within a range of classifications whose maximum rate is 5% above and 15% below the maximum rate of the employee’s own classification”. If redeployment does not occur four months after receiving the notice of lay-off, section 20.8 provides that the employee is entitled to be assigned to a temporary vacancy. As the facts disclose, no redeployment matches to vacant positions in the bargaining unit could be found for Ms. Kam and Mr. Rheinheimer. After actually being laid off from employment, the employee has a right to recall to vacant positions for 24 months under section 20.6. [8] A key GSB case which addresses the bargaining unit integrity issue is OPSEU (Union) and Ministry of Health and Long-Term Care (2002), GSB Nos. 1924/94 et al. (Fisher). The issue before the Board was whether the Employer had the right to use agency staff in the Trillium Drug Program. The Board found that there was no difference between the work performed by agency staff not in the bargaining unit and employees in the bargaining unit. The Board therefore concluded that the agency staff in the Program was performing bargaining unit work on a regular and/or seasonal basis. Following the logic and rational in OPSEU (Pilon) and Ministry of Community and Social Services and AMAPCEO (2001), GSB No. 1254/99 et al. (R. Brown), the Board concluded that there was an implied term in the collective agreement prohibiting the employer from using agency staff to perform bargaining unit work. Given that it did not have the jurisdiction to declare an agency employee to be a Crown employee because of certain provisions of the Public Service Act, the Board ordered the Employer to cease and desist from using the agency staff to perform bargaining unit work and to post jobs pursuant to the collective agreement. OPSEU and the Employer agreed to a protocol for addressing bargaining unit integrity disputes and there has been ongoing litigation about the application and scope of - 6 - the implied contracting in restriction. An area that frequently gave rise to BUI issues has been the Employer’s use of persons outside of the bargaining unit to perform IT work. [9] During the last round of bargaining, the parties addressed the concerns about IT Consultants performing bargaining unit work by adding Appendix 38 to the Collective Agreement. The relevant features of Appendix 38 – Information and Information Technology are as follows: 1. The purpose of this section, “Information & Information Technology” is defined as any activity which involves the investigation, analysis, planning, acquisition, design, development, implementation, operation and maintenance of information technology, the management of information including the security of that information and/or the automation of business processes. 2. For purposes of this section, a “non-public servant” is: - a person who has not been appointed by the Public Service Commission; and - who is engaged to perform work related to Information & Information Technology 3. Persons employed or engaged by a supplier of I and IT equipment, hardware or software who are performing work in relation to the installation, maintenance and support of that equipment, hardware or software shall not be considered “non-public servants” for the purposes of this section. There shall be no restriction regarding their use, and they shall not otherwise be covered by the terms of this section, nor the reporting requirements in paragraph 6. 4. The use of a non-public servant to perform bargaining unit work does not constitute a violation of the Collective Agreement. 5. Non-public servants, while in the workplace, 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. 6. Every six (6) months, the Employer will provide OPSEU with a report including the following data relating to all non-public servants as defined in paragraph 2 who perform OPSEU bargaining unit work requiring regular attendance at one or more sites controlled by the Employer: - The name of the non-public servant; - The workplace regularly attended by the non-public servant; - The role and level for which the non-public servant is engaged; - 7 - - The start date of the engagement of the non-public servant; - The end date or anticipated end date of engagement of the non-public servant; and - The number of days worked during the reporting period. 7. At the time of providing the report, and for the period of the report, the Employer shall pay to the Union a payment for each day of work performed by the non-public servant performing OPSEU bargaining unit work identified in the report. The formula for such payment shall be as follows: 1.4% of the daily average of the salary maximum for the System Officer series multiplied by the number of days worked set out at paragraph 6 of the report. … [10] Appendix 38 alters the general BUI rule with respect to the performance of IT work as defined in paragraph 1 when performed by an IT Consultant. As paragraph 4 in effect provides, the performance of IT work by an IT consultant no longer constitutes a contravention of the Collective Agreement. There is no longer an implied term in this context prohibiting the Employer from utilizing persons not in the bargaining unit from performing bargaining unit work. In return for the alteration of the general BUI rule, the Employer agreed to provide the Union with the report (“the Report”) referenced in paragraph 6 and to pay an amount equivalent to lost Union dues as provided for in paragraph 7. The Report for the period July 1 to December 31, 2010, discloses that there were 676 IT Consultants performing OPSEU bargaining unit work. Pursuant to the formula in paragraph 7, the Employer paid $191,622.05 to the Union for the use of these IT Consultants. In a section of Appendix 38 not reproduced above, the Employer agreed to create a minimum of 230 full-time bargaining unit positions to perform IT work. [11] There continues to be one circumstance under Appendix 38 where the Employer’s use of an IT Consultant is restricted. Paragraph 5 of Appendix 38 provides that the Employer cannot utilize the services of an IT Consultant to perform duties normally performed by bargaining unit employees “if it directly results in the lay-off of a bargaining unit employee”. - 8 - The Union takes the position that the Employer’s retention of IT Consultants may have directly resulted in the lay-off of Ms. Kam and Mr. Rheinheimer. Much of the focus of the submissions was on the interpretation of the words “directly results in a lay-off”. [12] Union counsel emphasized that the Union does not allege that the Employer contravened the Collective Agreement when it elected to surplus Ms. Kam and Mr. Rheinheimer or when it issued them lay-off notices. He argued that the focus in paragraph 5 of Appendix 38 is on when the actual lay-off of an employee is about to take place. After referencing the relevant words in article 20 of the Collective Agreement, counsel submitted that the parties meant different concepts when they used the words “surplus”, “notice of lay-off” and “lay-off”. In his submission, the prohibition in paragraph 5 does not arise when an employee is given either an advance surplus notice or a notice of lay-off, but arises when an employee is to be actually laid off, thereby creating the need to ask what caused the lay-off and not what caused the Employer to surplus the employee. Counsel argued that a breach of paragraph 5 occurs when an SO is actually laid off while an IT Consultant is retained to perform IT work that the SO is qualified to perform and when the parameters of the SO have been met. He submitted that a breach arises because it is in these circumstances that the performance of bargaining unit work by an IT Consultant has directly resulted in the lay-off of the SO. Counsel argued that there is a sufficient causal connection if the lay-off of the SO occurs when an IT Consultant is retained to perform IT work that the SO who is about to be laid off can perform. It is on this basis that he submitted the Employer is obliged to review the work performed by IT Consultants before laying off an SO. In this matter therefore, counsel maintained that it was incumbent on the OCWA in the case of Ms. Kam and on the CSC in the case of Mr. Rheinheimer to determine whether there - 9 - were any IT Consultants performing IT work that Ms. Kam and Mr. Rheinheimer could perform before they were laid off. [13] Union counsel also argued that there is a further obligation on the Employer to assign the IT work performed by the IT Consultant to the SO capable of doing that work before the lay-off takes effect. He submitted that the OPSEU bargaining unit work performed by an IT Consultant when there is a contravention of paragraph 5 of Appendix 38 constitutes a vacancy that ought to be filled by an SO subject to lay-off. He argued that there would be a vacancy but for the Employer’s use of an IT Consultant. Counsel argued that it is unnecessary for the Employer to declare a vacancy and that this approach would be consistent with the way in which a BUI breach is remedied. Counsel submitted that the Union’s interpretation of the relevant provisions provides the labour relations rationale which underlies the agreement of the parties as reflected in Appendix 38. He argued that the Union was prepared to permit the Employer to use IT Consultants to perform IT work, but only to the extent that their use did not cause the lay-off of bargaining unit employees. [14] Union counsel relied on the following decisions in support of his submissions: Sandvik Materials Technology Canada and National Automobile, Transportation and General Workers’ Union (CAW-Canada), Local 228, [2004] O.L.A.A. No. 238 (Roach); Re Central West Health Board v. Newfoundland Assn. of Public Employees (1977), 67 L.A.C. (4th) 129 (Cooper); Rothsay v. Communications, Energy and Paperworkers Union of Canada, Local 39X, [1999] O.L.A.A. No. 764 (Rayner); Re Cranbrook (City) and C.U.P.E. Loc. 2090 (1988), 35 L.A.C. (3d) 157 (Rella); Welland County General Hospital v. Ontario Public Service Employees Union, Local 214, [1999] O.L.A.A. No. 705 (Verity); FBI Brands Ltd. v. U.F.C.W., Local 1075, [1996] - 10 - O.L.A.A. No. 268 (Emrich); Re Dominion Stores Ltd. and Retail, Wholesale and Department Store Union, Local 414 (1981), 1 L.A.C. (3d) 436 (McLaren); Re Prudential Steel Ltd. and United Steelworkers, Local 7226 (2009), 188 L.A.C. (4th) 391 (A. Beattie); OPSEU (Union) and Ministry of Correctional Services (1991), GSB No. 311/88 (Watters); and, OPSEU (Burditt) and Ministry of Health (1997), GSB No. 1179/96 (Briggs). [15] Counsel for the Employer argued that there has not been a breach of paragraph 5 of Appendix 38 on these facts. He submitted that there needs to be a more direct causal connection between the lay-off of an SO and the IT work performed by an IT Consultant for there to be a violation of paragraph 5. He argued that the language used in this provision indicates that the Union must prove more than simply that an IT Consultant is engaged in some IT work that an SO about to be laid off can perform. Counsel submitted that it is clear in this case that Ms. Kam and Mr. Rheinheimer were not laid off as a result of the use of IT Consultants, but for other unrelated reasons. Counsel also submitted that even if the Union’s interpretation of paragraph 5 was correct, article 20 simply has no application in this case. He argued that remedy suggested by the Union ignores paragraph 4 of Appendix 38 which recognizes that the use of IT Consultants does not constitute a violation of the Collective Agreement. Counsel submitted that the use of IT Consultants to perform OPSEU bargaining unit work does not create vacant bargaining unit positions and that the deployment provisions in article 20 deal only with filling vacant bargaining unit positions. He argued that the relevant Collective Agreement provisions do not oblige the Employer to review the work performed by IT Consultants before actually laying off an SO. [16] Employer counsel referred me to the following decisions: Hi-Tech Group - 11 - Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97; Sodexho Marriott Services of Canada v. C.U.P.E., Local 895, [2001] O.L.A.A. No. 207 (Surdykowski); OPSEU (Pilon et al.) and Ministry of Community and Social Services and AMAPCEO, supra; OPSEU (Union) and Ministry of Health and Long-Term Care, supra; OPSEU (GIC Grievance) v. Ontario (Management Board Sectretariat), [2000] O.G.S.B.A. No. 68 (Mikus); Re Municipal Property Assessment Corporation and Ontario Public Service Employees Union (2002), 109 L.A.C. (4th) 385 (Howe); Re Central West Health Board v. Newfoundland Assn. of Public Employees (1997), 67 L.A.C. (4th) 129 (Cooper); International Brotherhood of Electrical Workers, Local 348 v. AGT Ltd., [1998] C.L.A.D. No 4 (Lucas); Rouge Valley Health System v. Canadian Union of Public Employees, Local 4365, [2007] O.L.A.A. No. 275 (M. Newman); OPSEU (Union) and Ministry of Community and Social Services (1998), GSB No. 2507/86 (Samuals); Re Rockwell International of Canada Ltd. and United Automobile Workers, Local 127 (1982), 6 L.A.C. (3d) 304 (Rayner); Boreal College v. O.P.S.E.U., [2000] O.L.A.A. No. 219 (Brent); International Simultaneous Translation Service Ltd. v. National Association of Broadcast Employees and Technicians, [1993] B.C.C.A.A.A. No 180 (Taylor); OPSEU (Dobroff et al.) and Ministry of the Environment (2005), GSB No. 2003-0905 et al. (Dissanayake); Re Northern & Central Gas Corp. Ltd. and United Steelworkers (1972), 1 L.A.C. (2d) 147 (Rayner); and, Re British Columbia Ferry Corporation and British Columbia Ferry and Marine Workers’ Union (2002), 115 L.A.C. (4th) 367 (Gordon). [17] In order to decide the main issue before me, it is necessary to determine the intention of the parties from the language they used in constructing Appendix 38, particularly paragraphs 4 and 5, and to determine whether they intended there to be some connection between paragraph 5 of Appendix 38 and article 20 of the Collective Agreement. I have considered the - 12 - issues in light of the agreed facts, the submissions of counsel and the decisions they relied on to support their submissions. [18] I agree with Employer counsel’s submission that it is important to consider the issues and to interpret the relevant Collective Agreement provisions in light of the context within which they arose. As noted previously, the context here includes a history of the Employer using the services of persons outside of the bargaining unit to perform bargaining unit work and the Union’s efforts to protect the integrity of its bargaining unit. The GSB has found that there is an implied term in the Collective Agreement prohibiting the Employer from using persons outside of the bargaining unit to perform bargaining unit work. In remedying a beach of this implied term, the GSB would include a direction to the Employer to establish the appropriate number of bargaining unit positions and to fill them by using the job competition process. Given the Employer’s view that it often requires persons outside of the bargaining unit to perform IT work, this was an area where BUI issues frequently occurred and it is not surprising that the parties would address this matter during collective bargaining. Appendix 38 is the result of the compromise they reached in the last round bargaining. The effect of this agreement is that the Employer’s use of IT Consultants no longer constitutes a violation of any part of the Collective Agreement. The only restriction in using IT Consultants is that their duties shall not directly result in the lay-off of a bargaining unit employee. [19] One of the central issues in this case is the meaning of the words “directly results in the lay-off of a bargaining unit employee” found in paragraph 5 of Appendix 38. It is not uncommon for this type of restriction on management rights to be included in a collective agreement, often with language similar to that used in paragraph 5. Although I have considered - 13 - the decisions referenced by counsel that have interpreted similar language, I find it unnecessary to refer to them here. The key words indicate that a violation of paragraph 5 can occur only if there is a casual connection between the lay-off of the SO and the duties performed by an IT Consultant. The disagreement between the parties is about the nature or the extent of the casual connection that is required. How direct must the causal connection be between the lay-off of Ms. Kam and Mr. Rheinheimer and the duties performed by IT Consultants for there to be a contravention of paragraph 5? [20] As noted previously, the Union takes the position that the lay-off of an SO when there is an IT Consultant performing IT work which the SO can perform is enough of a causal connection to contravene paragraph 5 of Appendix 38. It contends that one can conclude from such circumstances that the performance of that work by the IT Consultant directly resulted in the lay-off of the SO. I disagree that a casual connection of this sort is sufficient having regard to the language in paragraph 5. The words in paragraph 5 indicate that the parties intended that there be a stronger and a more direct link to the lay-off. The Union provides an interpretation of paragraph 5 which suggests that the restriction therein precludes a lay-off of an SO simply when the Employer is contracting out work that the SO can perform. In my view, the parties would have used different language if this had been their intention. To establish a violation of paragraph 5, there must be evidence a direct causal link between the specific work of the SO subject to lay-off and the IT work performed by an IT Consultant. [21] The facts establish that it was not the IT work performed by IT Consultants that directly resulted in the lay-offs of Ms. Kam and Mr. Rheinheimer. There is no direct link between the work they had performed and the work performed by IT Consultants. Ms. Kam’s - 14 - work at the OCWA was no longer required. No IT Consultants were engaged in performing the work Ms. Kam had performed. Indeed, the OCWA had not used IT Consultants for at least three years. The work which Mr. Rheinheimer had performed essentially no longer existed and what little work remained was absorbed by others in the bargaining unit. No IT Consultants were engaged in performing the work Mr. Rheinheimer had performed. The primary and direct reason for their lay-offs had nothing to do with the IT work performed by IT Consultants. Even when focusing on the time when these SOs were about to be laid off, the reasons for their actual lay-off are the same reasons the Employer had for issuing them notices of surplus and lay-off. Having regard to the circumstances and my conclusion that a violation of paragraph 5 of Appendix 38 requires a direct link between the work performed by IT Consultants and the lay-off of an SO, I am satisfied that the Employer did not contravene paragraph 5 when it actually laid off Ms. Kam and Mr. Rheinheimer. [22] The next issue is whether section 20 of the Collective Agreement has any application when a violation of paragraph 5 occurs. Again, the Union took the position that a violation of paragraph 5 would require the Employer to assign to the SO subject to lay-off the IT work performed by the IT Consultant if the SO is capable of performing the work. Even if there had been a violation of paragraph 5, I find that section 20 of the Collective Agreement would not have any application in providing a remedy for the violation. If the Employer had contravened paragraph 5, the appropriate remedy would consist of a declaration that the Employer had contravened paragraph 5, with a direction to the Employer to return the SO to active employment and to compensate the SO for any losses. This is precisely the response of the arbitrators who found a contravention of a similar provision in the decisions relied on by the Union. This remedial approach would be a sufficient response to a specific violation of paragraph 5. - 15 - Particularly given that paragraph 4 of Appendix 38 provides that the use of IT Consultants to perform bargaining unit work does not contravene the Collective Agreement, there would be no reason to remedy a breach of paragraph 5 by making any directions which would have an impact on the IT work performed by an IT Consultant. In addition, the terms of article 20 relating to redeployment provide for a right to be assigned to a vacant position. The vacant position referenced here is a classified job in the bargaining unit. I agree with counsel for the Employer’s submission that the IT work performed by IT Consultants does not constitute a vacancy in the bargaining unit within the meaning of article 20. The standard response to a BUI contravention is not relevant to the operation of article 20 of the Collective Agreement. [23] The foregoing analysis of the relevant provisions, particularly the determination concerning the meaning of the words “directly results in a lay-off” in paragraph 5 of Appendix 38 and the finding that section 20 of the Collective Agreement has no application when there is a contravention of paragraph 5, leads to the conclusion that there is no obligation on the Employer to ascertain whether an IT Consultant is performing IT work that can be performed by an SO who is about to be laid off. I am satisfied that such an obligation does not arise from the rights created by Appendix 38 and article 20 of the Collective Agreement. [24] Having regard to this conclusion, the Union’s grievance dated March 7, 2011, is hereby dismissed. Dated at Toronto, this 31st day of July 2012. Ken Petryshen, Vice-Chair