HomeMy WebLinkAbout1986-2507.Union.88-11-26Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Union Grievance)
2507186
Grievor
‘and
The Crown in Right of Ontario,
(Ministry of Community and Social Services)
Employer
J.W. Samuels Vice Chairman
P. Klym Member
P. camp Member
For the Grievor: R. Stowkewych
Counsel
Cavalluzzo, Hayes & Lennon
Barristers and Solicitors
For the Employer: D. Costen
Solicitor
Legal Services Branch
Ministry of Community and Social Services
Hearing: July 21, 1988
DECISION 2
On October 1, 1987, the Ministry divested itself of the Surrey Place
Centre, a multi-disciplinary direct service, teaching and research facility
for developmentally-handicapped people, located in Toronto. Until this
date, the Ministry had operated the Centre directly, and now the facihty
was being turned over to a newly-created, non-profit, community-based,
private corporation, Surrey Place Centre Inc.
There were some 100 bargaining unit members affected by the
divestment. Upon divestment, all would be laid-off from the public service
and would become surplus employees under the collective agreement.
Surplus empIoyees have a measure of job protection under Article 24 of
the agreement. This Article provides ‘for the possibihty of assignment to
vacancies within the public service, bumping of less senior employees,
retraining, and recall. The issue in this case is whether or not the Ministry
invoked the provisions of Article 24 early enough, once the divestment was
in the works.
In order to understand this issue, it is necessary to see some of the
background to October 1, 1987. .. ~...
The divestment had been in the air since December 1984, when Dr.
C. Rubino, the Director of. the Centre; told his staff that the Ministry was
considering divestment to a community-based corporation and that, if this
occurred, all employees then on staff would be offered employment with
the new agency. Through October 1985, the Centre management
circulated information bulletins to the staff, explaining the potential impact
of divestment on employees’ salaries, pensions; benefits, and so on. The
bargaining unit members were told that, if they chose tiot to continue
employment at the Centre, they would have access to the provisions of
‘Artike 24 of the collective agreement.
In the summer of 1986, a steering committee was formed under Mr.
M. Emiis, the Ministry’s Regional Director of its Central Region, to
examine the feasibility of divestment to a community-based corporation.
The Union was aware of this study, and the matter was discussed at
meetings of the Ministry employee relations committee. During 1986, the
Union wrote several letters to the Ministry and the Minister, making clear
.the Union’s concern about divestment to a private corporation, and
suggesting instead that a Crown agency be created to run the Centre. This
proposal was rejected by the Minister in a letter to the Union President,
Mr. J. Clancy, on December 3,1986.
On December 9, 1986, the Minister, Mr. J. Sweeney, issued the
following press release:
John Sweeney, Ontario’s Minister of Community and Social
-Services, today announced that as of September 30, 1987, the operation
of Surrey Place Centre will be turned over to an incorporated
community-based.board of directors.
disciplinary direct service,
Surrey Place Centre is a multi-
teaching and research facility for
developmentally handicapped people, located, i~n.Toronto.
Mr. Sweeney said ‘that a board of directors will be responsible
for directing the centre’s staff and current programs and that his
ministry will continue to provide operating funds currently valued at
$6.2 million annually. ..,
“I believe strongly in services and programs that are directly
operated by the community,” said Mr. Sweeney. “The partnership with
a board cf directors based in Metropolitan Toronto will nurture and
support the future development of services, training, education and
research for developmentally handicapped children.”
Included in the transfer is an agreement guaranteeing that the
centre‘s staff will be offered employment positions with the new
board. Mr. Sweeney said that the staff, under the agreement, have the
option of accepting positions with the board or exercising the job
security provisions of ‘their collective agreement.
“This is an extremely positive step in the evolution of the
centre and its services,“ said Dr. Carl Rubino, Director of Surrey
Place Centre. “It will bring us closer to the community and other
agencies. ”
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The transfer of operations from the ministry to the board will
increase the participation of the community in the development and
delivery of services for developmentally handicapped People in Metro.
Starting in Zanuary, interested community members will be
recruited to the board and it is expected that the board Will become
incorporated as a non-profit community group this spring.
Surrey Place Centre and the ministry will enter into a service
plan to form the agreement with.the board. The establishment of the
board will result in a new transfer payment agency in Metro. The
board, along with existing community agencies and the ministry, will
Participate in the on-going planning and development of quality
Programs and services for the developmentally handicapped.
The day before the Minister’s announcement, on December 8, 1986,
Ministry officials met with the Centre staff to inform them of the details of
the up-coming statement. At this meeting, the officials made clear a
critical part of the procedure which’would be followed &iring the process
of divestment---bargaining unit members would be given the option of
accepting positions with the new entity, or exercising their rights under
Article 24 of the cohective agreement. Thus, for any particular bargaining
unit employee, Article 24 would not be invoked unti1 an offer of
employment had been made by the new entity, and me employee had
rejected the offer. Ms. A. Manski of the Ministry’s Human Resources
Branch was introduced at this meeting as the on-site contact person for
employee inquiries concerning the divestment process.
It is important to understand here that the divestment would
necessarily take place within a pre-established legal context. Pursuant to
Section 2(l) of the Successor Rights (Crown Transfers) Act, RSO 1980,
c. 489, where an undertaking is transferred from the Crown to another
employer, and a bargaining agent has a collective agreement with the
Crown in respect of employees in the undertaking, the new employer is
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bound by the collective agreement as if a~party to the agreement, until the
Ontario Labour Relations Board declares otherwise. Thus, in this case,
there was never any doubt that, at least at the outset, the bargaining unit
employees who remained at the Centre would continue to be covered by the
collective agreement. As well, under the collective agreement, they would
be considered to have been laid off, and therefore be surplus employees,
and they could take advantage of the job protection machinery provided by
Article 24. In addition, in his press release, Mr. Sweeney refers to the fact
that the Ministry and the new entity would.have an agreement pursuant to
which the new entity would have to offer employment to all bargaining
unit members then on staff at the Centre.
From December 9, 1986 on, the process of divestment moved
forward remorselessly and was completed as scheduled on September 30,
1987.
At the time of Mr. Sweeney’s announcement, there was no
corporation in existence to take over the Centre. It had to be created.
Early in 1987, the Ministry recruited interested community members,
largely from associated .agencies, and on April24, 1987, the Ministry
announced that the founding board of directors of the new corporation had
been selected. In this announcement, the Centre staff were informed that
the incorporation would now be completed and offers of employment
would be forthcoming from the new entity. In fact, the new agency was
incorporated oriAugust 31, 1987; and the offers of employment were not
made until September 22, only eight days before the divestment took place.
Immediately after the Minister’s announcement in December 1986, a.
joint Union-Management committee was established at the Centre to
examine the issues concerning the impact of divestment on bargaining unit
employees. This committee met semi-monthly from mid-December 1986
through early October 1987.
In the first two weeks of January 1987, Ministry officials conducted
interviews with each staff member individually to discuss the divestment.
In particular, the bargaining unit employees were told once again that
Article 24 would be invoked after job offers had been made by the new
entity and an offer had been rejected by the employee.
On January 14, 1987, Mr. T. Moore, who was a Union Staff
Representative and a member of the joint Union-Management committee,
wrote to Mr. Ennis, the Ministry’s Regional Director, complaining about
the way in which the Ministry proposed to administer Article 24 in this
situation. Mr. Moore made it clear that, in the Union’s view, Article 24
should be invoked immediately for ti bargaining unit employees at the
Centre. Mr. Ennis responded on February 3 that it was premature to
identie any employee as surplus.
Thus, the Union filed the grievance before us on February 16.
Commencing in late February, the Ministry conducted a number of
information seminars for the ‘Centre employees. The first seminar, held on
February 25, dealt in. part with career planning, interview ski& and
resume writing for those employees who wished &stay with the Crown.
In April 1987, the steering committee, which was overseeing the.
divestment on behalf of the Ministry, decided that the delay in establishing
the’board of directors of the new entity required a change ‘m plans. Notice
of layoff and notice of surplus status would now be given to bargaining
unit members in April, effective May 1, 1987, and thereafter the
machinery provided in Article 24 would be available to the bargaining unit
employees.
The Article 24 process was initiated in early May.
The Union now says that a number of the bargaining unit employees
were disadvantaged because the Article 24 process was not commenced in
December 1986, immediately after the Minister’s announcement. Included
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in these disadvantaged employees are some eniployees who have continued
in the employ of the new entity. In an earlier award, a different panel of
the Grievance Settlement Board decided that Surrey Place Centre Inc. was
an interested party, and had the right to appear before the Board.
However, we were provided with a letter from counsel for the corporation
in which he says that, if all the Union is seeking is the right of its
employees to exercise their rights under Article 24, and no relief,
monetary or declaratory, is claimed against Surrey Place Centre Inc., then
the corporation is content not to intervene in the Board’s proceedings. The
Union has confiied that its claims are limited as suggested by counsel for
the corporation, and therefore we have proceeded without the intervention
of Surrey Place Centre Inc.
Our task at this stage is simply to determine whether or not the
Ministry violated Article 24 by failing to commence the job security
process earlier than May 1, 1987.
Article 24 commences as follows:
24.1 Where a lay-off may occui by reason of shortage of
work or funds or the abolition of a pwition or other
material change in organization. the identification
of asurpl~s employee in an administrative district or
unit. in&itution 0; other such work area and the
subsequentassignment, displacemenr orlay-off shall
be in accordance with seniority subject to thecondi-
tions set out in this Article.
24.2.1 Where an employee is identified as surplus he shall
beassignedonthe baSisofhissenioritytoavacancy
in his ministry within a forty (40) kilometre radius of
his headquarter!3 provided he isqualified to perform
the work and the salary maximum of the vacancy is
not greater than three percent (3%) above nor twenty
percent (20%) below the maximum salary of his
classification. as foll0ws:
- a vacancy which is in the same class or Position
as the employee’s class or position;
- a vacancy in a class or position in which the
employee has served during his current term of
continuous service: or
- another vacancy.
And it continues with a detailed procedure designed’to relocate the surplus
employee within the public service.
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When does Article 24 commence operation? Must there be a formal
“identification” of surplus employees before the process begins?
In our view, Article 24 is essentially self-executing. Article 24.1
commences “Where a lay-off may occur...“. This is the triggering event.
.‘l%e process established in Article 24 begins when a lay-off “may occur”.
What does “may occur” mean? Given the elaborate and
comprehensive machinery provided in Article 24, the parties could not
have intended to start up the machinery if there was only a vague
possibility that an employee might be laid off. In our view, there has to be
a clear likelihood that the lay-off will occur before an affected employee
can take advantage of Article 24.
But once the triggering event has taken place, once “a lay-off may
occur”, Article 24 is invoked.
Now what happens?
In some cases, it may not be clear who will be the affected
employees. For example, if there is a shortage of funds, or there will be
some material change in the organization, it may not be clear which
employees will have to be laid off. Then, according to Article 24.1, the
affected employees must be “identified”, and this must be done according to
seniority, subject to the conditions set out in Article 24.
Iri a case such as our divestment, it is clear from the outset who wiI.l
be affected---it will be & of the employees. Once the Centre is transferred
to a private corporation, all of the employees will necessarily be laid off as
public servants, even if some of the employees carry on in their
employment at the Centre. The Ministry’s process was predicated on the
view that an employee would only be surplus if he or she was not
continuing in employment at the Centre. But this view, while it makes
some practical sense, does not accord with the language of the collective
agreement. Under Article 24.1, an employee will be surplus if the
employee may be laid-off from the public service. Because divestment
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would necessarily mean that all employees of the new corporation would
no longer be employed in the public service, divestment clearly involved a
lay-off of&l of the bargaining unit employees.
In our view, Article 24.1 does not require a separate act of
“identification”, if the identification of the surplus employees is obvious in
the circumstances. Article 24.1 speaks of “the identification”. It does not
say that management must do the identifying. Once management has
decided upon the organizational change which necessitates the impending
‘lay-off, “the identification” will generally be a matter of course.
In this case, when the Minister made his announcement on December
9, 1986, could it have been said that “a lay-off may occur”? The answer is
“yes”, for a number of reasons. Firstly, there was no uncertainty in the
Mister’s language. The divestment of the Centre was going to take place
and it,would be done by September 30,1987. The plan was clearly laid out
in the Minister’s press release. Secondly, this was the culmination of a long.
process of planning and preparation for divestment, that had commenced in
December 1984. The move had been well thought. out. Thirdly,’ there was
never any doubt in Human Resources that the divestment would take place
on September 30, 1987. Immediately after the Minister’s announcement,
steps were taken at the Centre to prepare staff for the impending total lay-
off.
In these circumstances, the triggering event for the implementation
of Article 24 took place on December 9, 1986. From that day on,
bargaining unit employees at the Centre ought to have had access to the job
security procedure established in Article 24.
Having come to this conclusion, we will now let the parties attempt
to determine the remedy applicable to any particular employee, and we will
remain seized to hear and determine any issues which arise out of this
process. We might say at this point that the parties should take into account
the fact. that, even before May 1, 1987, when the Ministry formally
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“identified” the bargaining unit employees as surplus, the Mixiistry did
provide a measure of help, such as career counselling, etc., which could
really be considered to be part of the Article 24 process for some of the
employees.
Done at London, Ontario, this 26th day of *“gusty , 1988.
P. Klym, Member /