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Home My WebLink About2002-0610.OPSEU Union Grievance.02-09-04 DecisionONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396 GSB#0610/02 UNION#02U142 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 Grievance) Grievor -and- The Crown in Right of Ontario (Management Board Secretariat) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Donald Eady Counsel Paliare Roland Rosenberg Rothenstein LLP FOR THE EMPLOYER Stephen Patterson Associate Director Management Board Secretariat HEARING August 30, 2002. 2 DECISION This is an interim relief application by the Union which relates to a Union grievance dated June 27, 2002. In the grievance the Union claims that the Employer has failed to comply with three Memoranda of Settlement which were ratified on May 5, 2002. Paragraph 3 of each Memorandum provides that “retroactive adjustments shall be paid as soon as reasonably possible after ratification by both parties” and also provides that any adjustment to the wage rates shall be paid for all hours worked retroactive to January 1, 2002. The Union takes the position that the Employer has not paid the retroactive adjustments as soon as reasonably possible and it requests that the Employer promptly pay the retroactivity, with interest. The Union grievance signed by Ms. Casselman followed an announcement by the Employer that all OPSEU employees’ wage increases will be implemented and any retroactivity owing will be paid by October 10, 2002. A hearing on the merits was scheduled for July 31 and August 1, 2002. Prior to July 31, 2002, the Employer announced that OPSEU employees would receive on August 1, 2002, an interim retroactive payment of 3.5% of their regular earnings between January 1 and July 7, 2002. At the hearing on July 31, 2002, the Employer requested that the hearing be adjourned. After considering the parties’ submissions on the Employer’s motion to adjourn, I ruled orally at the hearing that it would not be appropriate to adjourn the hearing in the circumstances. After discussing procedural and other issues with counsel, 3 including the number of hearing days it would take to deal with the merits, it became apparent that the best course was to proceed with the matter on subsequent hearing dates. Five hearing dates were set, commencing with Monday, October 28, 2002. On August 26, 2002, the Employer announced that two additional installment payments would be paid effective September 12, 2002. On that date, all active OPSEU employees will receive an additional 3.5% of their regular earnings for the pay period from July 8 to August 18, 2002, and classified employees in the Correctional Bargaining Unit at the salary maximum for at least 12 months as of January 1, 2002, will receive 5% of their regular earnings from January 1 to August 18, 2002. At the interim relief hearing on August 30, 2002, the Union requested that the Employer be ordered to pay the negotiated rates and all retroactivity owing on September 12, 2002. Recognizing that such an order had the appearance of a final order, the Union advanced three alternative requests. It argued that additional OPSEU employees should receive a retroactivity payment on September 12, 2002. The Union also submitted that OPSEU employees should receive an additional retroactivity payment on September 26, 2002. And lastly, the Union argued that I should at least direct the Employer to pay the new rates and all retroactivity owing by October 10, 2002, which is consistent with the Employer’s undertaking. Given that OPSEU employees are entitled to the new rates and retroactivity, that the Employer appears to make additional payments in response to OPSEU taking a legal step and that the requested payments are not different in kind from the payments the Employer will be making on September 12, 2002, the Union argued that 4 the balance of convenience favoured the Union and its members. The Union referred me to the following two decisions: Ministry of Correctional Services and OPSEU (Sammy et al) 0224/01 (Harris) and Ontario Human Rights Commission and OPSEU (Fox et al) 0507/01 (Stewart). The Employer took the position that the Union was not entitled to interim relief in these circumstances. The Employer argued that the Union’s primary request amounted to a final order and, therefore, did not constitute appropriate interim relief. The Employer also submitted that since it could not accomplish the Union’s first two alternative requests, it would not be in the interests of good labour relations to grant these directions. The Employer noted that the October 10, 2002 date could be placed in jeopardy if it were compelled to devote resources to attempt to meet these requests. If I was inclined to grant the Union’s third alternative request, the Employer argued that I should make the direction to make retroactive payments on October 10, 2002, subject to unforeseen circumstances. The Employer argued that, given its payroll system, it was doing the best it could in the circumstances. Having regard to the timing of the interim relief application and the fact that the only possible remedy the Union could obtain if successful is damages in the form of interest, the Employer submitted that the balance of convenience did not favour the Union. The Employer referred me to Re Globe and Mail and Southern Ontario Newspaper Guild (Kelly) (1993), 39 L.A.C. (4th) 85 (P. Picher). In Ministry of Correctional services and OPSEU (Sammy et al), supra, Vice- Chair Harris referred to the two-fold test for interim relief. The first issue for 5 determination is whether there is an arguable case in the main proceeding. In the case at hand the Employer conceded that the Union has an arguable case and that its interim relief application is not frivolous or vexatious. The second issue for determination is whether the balance of harm or inconvenience favours one side or the other. In Re Globe and Mail and Southern Ontario Newspaper Guild (Kelly), supra, the arbitrator canvassed a number of factors relevant to the balance of harm issue, including labour relations considerations, the ability of the unsuccessful party to be compensated in damages, the expedition or lack thereof in bringing the application for interim relief and the extent of delay before the resolution of the grievance. As the decisions in this area suggest, the primary focus in an interim relief application is on whether the applicant has established that there are compelling reasons to alter the status quo. An alteration of the status quo may be appropriate if the harm to the applicant as a result of the alleged breach of the collective agreement cannot be adequately addressed with a remedial response at the conclusion of the proceeding. There appears to be a high probability that the new rates of pay and all retroactivity will be paid on October 10, 2002. In other words, the Employer’s obligation to make retroactive payments will most probably be satisfied on the third pay period from this date. The Employer advises that it will know for sure whether it will meet its objective on October 1, 2002. Apart from this relatively brief period of time, the only remedy the employees will be entitled to if the grievance succeeds is damages in the form of interest on earnings from the time the Employer should have paid all retroactivity to October 10, 2002. Given the circumstances of this case, it is my conclusion that the 6 balance of convenience does not favour the Union and its members. One can certainly understand why the Union’s members would want to have received all retroactivity sooner. However, there is no basis on the facts of this case to disturb the status quo. The alleged breach in this instance can be adequately addressed with damages at the conclusion of the proceeding. Accordingly, the Union’s interim relief application is dismissed. The parties agreed to two additional earlier hearing dates. The parties also agreed to a hearing later in the day on October 1, 2002, unless the Employer confirms during the course of that day that it will meet its October 10, 2002 objective. The hearing of this grievance will continue on Thursday, September 19, Tuesday, October 1 at 4:00 p.m., Tuesday, October 15, Monday, October 28, Monday, November 18, Friday, November 22, Friday, December 6, 2002, and Monday, January 27, 2003. Dated at Toronto, this 4th day of September, 2002. Ken Petryshen – Vice-Chair