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HomeMy WebLinkAbout1996-1747UNION97_05_08 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OI'lTARIO 1111 GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (41~) 32~-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (41($) 32tl-1396 GSB # 1747/96 OPSEU # 96U111 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - the Crown in Right of ontario (Ministry of Agriculture, Food and Rural Affairs) Employer BEFORE o V Gray Vice-Chair FOR THE G Leeb GRIEVOR Grievance Officer ontario Public service Employees Union FOR THE D strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 4 / 1997 Decision In late September 1996, the MmIstry of AgrIculture, Food and Rural Af- faIrs concluded an agreement wIth the UmversIty of Guelph concermng the transfer to the umversIty of the operatIOn and management of facIlItIes formerly operated and managed by the mmIstry's EducatIOn, Research and Laboratory DIVISIOn ("ERLD") Those facIlItIes mcluded three Colleges of AgrIcultural Tech- nology at Alfred, KemptvIlle and Rldgetown, the HortIcultural Research lnstI tute of OntarIo at Vineland, varIOUS research substatIOns, vetermary servIces laboratOries m KemptvIlle, Guelph and RIdgetown, and the Agriculture and Food Laboratory m Guelph. The mmIstry employed several hundred mdIVIduals m those facIlIties, in such posItIOns as clerk, analytical chemIst, secretary, bUlldmg caretaker, lecturer, agricultural worker, technologIst, librarIan, verncle operator and others. The agreement contemplated that the uruversIty would offer em. ployment to many, but not all, of those mmIstry employees. On October 1, 1996, the umon filed thIS gnevance. The MmIstry has failed to comply with Appendix 14 ill the transfer of em ployees to the UmversIty of Guelph, thereby defeatmg employee s [sic} ArtIcle 24 entItlements. What was then AppendIX 14 IS now AppendIX 9 to the partIes' collective agreement. The pertment pOrtIOns of AppendIX 9 read as follows. The Government IS aware that its restructuring mItIatIves over the next two fiscal years (1996/97 1997/98) could have a slgmficant effect on employees some of whom have served for a lengthy perIOd, Accordmgly, commencmg WIth the ratIficatIOn of the collectIVe agreement and endmg on December 31, 1998, the Employer undertakes the followmg' 1 (a) The Employer will make reasonable efforts to ensure that where there IS a msposItIOn or any other transfer of bargammg umt func tIOns or Jobs to the pnvate or broader pubhc sectors, employees m the bargammg umt are offered pOSItIOns WIth the new employer on terms and conmtIOns that are as close as possible to the then eXIstmg terms and conmtIOns of employment of the employees ill the bargammg umt, and, where less than the full complement of emplovees IS offered pOSItIOns to ensure that offers are made on the baSIS of semonty When an employee has been transferred to a new employer he/she 2 will be deemed to have resigned and no other prOViSions of the collec tlVe agreement wtll apply except for ArtIcle 53 or 78 (TermmatlOn Pay) (b) Where the salary of the Job offered by the new employer IS less than 85% of the employee's current salary, or if the employee's service or seOlonty are not earned over to the new employer, the employee may dechne the offer In such a case, the employee may exerCIse the nghts prescribed by ArtIcle 20 (Employment StabilIty) and/or paragraphs 2 to 5 of thIs letter The employee must elect whether or not to accept employment WIth the new employer wlthm three (3) days of reCelvmg an offer In default of electIOn, the employee shall be deemed to have accepted the offer The uruon complams that the employer has mIsmterpreted the reqmre- ment that offers be "made on the baSIS of seruorIty" and that, consequently, the umversIty's offers of employment were not "made on the baSIS of semorIty", as the uruon mterprets that phrase. The umon Illustrated Its concern by reference to the CIrcumstances of two mdlvIduals formerly employed by the mimstry at one of the Colleges of Agncultural Technology Francme Sarault-Lamarch was employed by the mirustry as a clerIcal stenographer at Alfred College. MIcheline LaframbOIse was employed there as an admImstratIve clerk. TheIr POSItiOns were both classIfied OAD-8 Ms. Sarault- Lamarch had greater semonty than Ms LaframbOIse The uruversIty offered Ms LaframbOIse a Job performmg the very duties she had been performmg for the mlmstry The terms and condItlOns of the offer met the CrIterIa m paragraph 1(b) of AppendIX 9, and she accepted It. The uruversIty dId not mtend to employ anyone to perform the duties Ms Sarault Lamarch had been performing for the mmIstry It offered her a dIfferent posItlOn on terms that dId not meet the CrIte- rIa m paragraph 1(b) of AppendIX 9 She rejected It, and the mmIstry later of fered her a pOSItIOn m the OntarIo Clean Water Agency ("OCWA"), whIch she ac- cepted. The umon's pOSItIOn IS that because Ms Sarault-Lamarch was semor to Ms LaframbOIse, paragraph lea) of AppendIX 9 reqmred that the mmIstry make reasonable efforts to ensure that the umversIty offered Ms Sarault Lamarch a Job before It offered Ms. LaframbOIse a Job In the CIrcumstances, It says, the 3 mmlstry should have asked that the umversIty offer Ms Sarault Lamarch the Job Ms LaframbOlse had been performmg It says that the language of para- graph lea) of AppendIX 9 reqmred thIS whether Ms Sarault-Lamarch was capa- ble of performing Ms. LaframbOIse's job or not. In the alternatIve, it argues that the duties of the job Ms Sarault-Lamarch was later offered at OCWA show that she was m fact capable of performmg a Job SImIlar to Ms LaframbOIse's ThIS, It says, meets any reqmrement of mImmum competence that may be ImplIed mto the prOVISIOn that offers be "made on the baSIS of semonty " The employer dId not seek what the umon says It ought to have sought. It thought that paragraph l(a) of AppendIX 9 only contemplated the applIcatIOn of senIonty "by pOSItion" - that IS, that the prescribed goal was only that seruonty should determme whIch of several persons whose POSItiOns were the same would be offered one of a reduced number of Jobs m that positlOn m the new employer's orgaruzatIon. Bruce Anderson became the UlllversIty's Manager of Employee RelatIOns m early 1996, shortly after the umversIty and the mlmstry began negotIatmg the possible transfer of ERLD operatIOns to the uruverslty He partICIpated m that negotiatIOn, WIth responsibIlIty for the labour relatIOns and employment rela- tions strategy for the umversIty Labour relatIOns was a critIcal and complex IS- sue The ERLD faCIlIties had to be mtegrated mto an eXIstmg orgaruzatIOnal structure m wruch there were 8 eXlstmg bargammg umts and 4 aSSOCIatIOns compnsmg 2500 full-time and 5000 temporary and part-tIme employees. In addI tIon to ItS negotiatIOns WIth the mmIstry, the umversIty had to negotIate WIth the bargaIrung agents for the uruts affected by the hInng of ERLD staff to make speCIal arrangements that would permIt that hlrmg Mr Anderson testIfied that before Job offers were made, the uruversIty looked at the pOSItIOns m the ERLD orgamzatIOn and applIed to them the um- versIty's system and what It conSIdered operatIOnally feasible The pOSItIOns m the resultmg orgaruzatlOnal structure were then evaluated based on the umver Slty'S evaluatIOn system. Mmlstry employees were reqmred to fill out profiles of 4 theIr educatIOn and experIence Managers on both sIdes (umverslty and mmlS try) then went through a Job matchmg process, matchmg affected mlmstry em ployees to new umverslty jobs based on their seniority and the Jobs that the mmIstry employees were currently m. Mr Anderson testIfied that the UnIVerSIty was not gomg to take the most semor person in KemptvIlle and offer them a po- SItIOn m Guelph. The person currently m a Job, or the most semor of the persons m the Job at the subJect locatIOn, was offered the correspondmg umversIty Job In a small number of mstances there was not an exact Job match, so a few people were offered a UnIVerSIty Job that was not exactly the same as the Job they had been performmg for the mlmstry ThIS Job matchmg process took about 4 months, resultmg m Job offers on September 30, 1996 Mr Anderson saId that If the UnIVerSIty had been asked to hIre on the ba- SIS of senIorIty wIthout restnctmg It to Jobs, the lIkelIhood of the umversIty slgmng the agreement would have been slIm to none In rus VIew, such an ap- proach would have been unworkable The uruversIty would not have entered mto anythmg It dId not trunk would succeed, and was not gomg to take on lIabIlIties He saId that the uruversIty had made It clear to the mlllIstry that It was not pre- pared to "move people around," as the uruon now argues the mlmstry should have sought. Rob Scouller IS the Manager of Staff RelatlOns for the mmlstry He was co-chaIr of the commIttee that worked through the Job matchmg process m nego- tiatIOns WIth the umverslty He testIfied that the mmlstry sought to have Job of- fers made to the maXImum number of employees m accordance WIth Its under standmg of AppendIX 14 He confirmed that the mlmstry felt the reference to of- fers m order of semonty meant "by pOSItIOn" He saId the mmIstry also sought a stagmg process for some pOSItIOns If the first offer of a Job were reJected, It would be offered to another affected mllllstry employee The first offer would be to the most senIor person performmg the subJect Job for the mmlstry If a Job of- fer was reJected by the only person performmg the Job, It would then be offered to the most semor person performmg SImIlar work at that locatIOn. That IS what led - 5 to the offer to Ms. Sarault Lamarch. The Job offered dId not meet the CrIterIa m paragraph 1(b) of AppendIx 9, he said, because It was for a term of only 7 months. Argument The umon's advocate submItted that the mmlstry should have suggested to the umverslty that it offer Ms. LaframbOIse's job to Ms Sarault Lamarch, be- cause Ms Sarault Lamarch had more semonty than Ms LaframbOIse He ac- knowledged that there would not have been much the UnIon could have done If the umversIty's response to that suggestIOn had been "no thanks, we want the mcumbent." Nevertheless, he saId, the employer's faIlure was that It dId not make the suggestlOn. Asked If that submISSIOn put m Issue whether the em- ployer's failure to make that suggestIOn amounted to a faIlure to make "reason able efforts," he replIed that the meamng of "on the baSIS of seniOrIty" was the only point that was III issue Asked what the uruon felt the language of paragraph lea) of AppendIX 9 contemplated m the CIrcumstances of tills case, the umon's advocate suggested the followmg process a) Get a lIst of all employees affected by the transfer, m order of sen- lOnty; b) Get a lIst of all Jobs avaIlable WIth the new employer as a result of the transfer c) Startmg at the top of the employee lIst WIth the most semor em ployee, for each employee i) see If the employee's Job shows up WIth the new employer If so, offer her that Job, If not Ii) see If there IS another Job the employee IS qualIfied to do If so, offer that Job As regards the offenng of Jobs other than the employee's own, the umon's advo- cate saId that the search for such Jobs should be lImIted to Jobs located wlthm a 40 kIlometre radIUS of the employee's headquarters He noted that a 40 kIlome- 6 tre Imut can be found m AppendIx 13 and m ArtIcle 20 4(c) of the collectIve agreement, and that the concept of headquarters IS addressed m ArtIcle 11 The employer's advocate argued that paragraph l(a) of AppendIX 9 IS fo- cused on the movement of Jobs and of functIons that constItute a Job The words m questIOn should be mterpreted from that perspectIve, he submItted, WIth "full complement" bemg taken to mean full complement m a pOSItIOn. On that mter pretatIOn, he SaId, the words can be applIed WIthout requlrmg the reader to look beyond them for approprIate lImIts on the effect of semonty With that mterpre- tatIOn there IS no need to Imply a qualIficatIOn reqUIrement, because semonty only applIes to the Job the employee IS already performmg The lllterpretatIOn IS conSIstent WIth an mtentIOn to allow employees to follow "theIr own Job" The employer's advocate observed that If the partIes had mtended to adopt an elabo- rate bumpmg system of the sort contemplated by ArtIcle 20, they could have m- corp orated It by reference. He argued that haVIng regard to the eVIdence about the mmIstry's dealmgs WIth the uruverslty, the mlmstry's mterpretatIOn was most lIkely to lead to the successful securmg of Job offers and fulfilment of the purpose of the clause generally Conclusion The prospect of transfers of government operatlOns and Job functIOns to the prIvate sector was eVIdent when the partIes bargamed the current collective agreement. The effects of such transfers on those employed m those operatIOns and performmg those functIOns was a major Issue m bargammg The partIes ad dressed that Issue m AppendIX 14, now AppenolX 9 In AppendIX 9, the employer took on an oblIgatIOn to advance certam em- ployee mterests m Its dealmgs WIth transferees of government operations and Job functIOns The prOVlSlOn defines certam goals m that regard, and oblIges the employer to make "reasonable efforts" to achIeve those goals The goals are de- fined m very general terms, as mIght be expected m a prOVISIOn mtended to cover a WIde vanety of possible SItuatIOns 7 The partIes have chosen to focus here on the meanmg of the words "on the baSIS of semority" In paragraph lea), rather than on whether what the employer dId satIsfied the employer's obligation to make reasonable efforts Read lIterally, the words m Issue contemplate the employer's seekmg an allocation of Job offers on the baSIS only of semorIty, WIthout regard to the loca tIOns of the Jobs or the semor employees' qualIficatIOns or abIlItIes to perform them. The employer argues that attemptmg to secure an allocatIOn of Job offers purely on the baSIS of semorIty would have been both unrealIstIC and counter productive m tills case, and that that fact supports the employer s narrower m. terpretatlOn of the words m questIOn. The umon's descnptIOn of the Job matchmg process It would have preferred reveals the umon's own recogmtIOn that Job offer allocatIOn purely on the baSIS of semonty would have been unrealistic m the CIr cumstances of tills case, even from the employees' perspectIve The employer responded to the umon's rather detaIled descnptIon of the process It favoured WIth the argument that the parties knew how to draft com- plex semonty proVlslOns whIch factor m qualIficatIOns, abIlIty and locatIOn, and that theIr haVlng not done so here mdIcated that that IS not what they mtended A SImIlar argument applIes to the mterpretatIOn that the employer proposes The partIes also knew how to draft a "by pOSItIOn" semonty prOVlSIOn. Tills IS eVIdent from the language of what IS now AppendIX 13, whIch the partIes negotI ated a few months after they agreed to AppendIX 9 AppendIX 13 addresses the rIghts of employees of an operatIOn when a mmIstry decIdes to change an opera- tIOn's headquarters to a locatIOn more than forty kIlometres away Paragraph 3 of that appendIX prOVIdes that (3) If several employees hold the same posItlOn and fewer of therr pOSItIOns are requrred ill the new headquarters locatlOn the employees WIth the great est seOlontv will be gIven the opportUOlty to go to the new headquarters loea tlOn first. The partIes knew how to qualIfy a prescnptIOn for allocatIOn "on the baSIS of semonty" m a detailed way, to prOVIde a partIcular balance of the employer and employee mterests that arIse m determmmg the baSIS on whIch some num 8 ber of opportumtIes wIll be allocated among a greater number of employees The partIes chose not to do that here ThIs IS not partIcularly surpflsmg The em- ployer's oblIgation was already quahfied It was not an oblIgatIOn to achIeve the goals set out. The employer was only oblIged to make "reasonable efforts" to achIeve the goals described. Makmg reasonable efforts to achIeve multIple goals m bargammg mvolves exerclsmg Judgement about how and to what extent partIcular goals WIll be pur- sued The goal of ensurmg that offers are made solely "on the baSIS of semorIty" may conflIct WIth the goal of ensurmg that the greatest number of affected em ployees are offered employment on favourable terms The mterests of the gov ernment and of the new employer WIll also weIgh m the balance m determmmg what It IS reasonable for the employer to pursue m satIsfactIOn of Its oblIgatIOn under paragraph lea) of AppendIX 9 The oblIgatIOn to make reasonable efforts may not only permIt but reqUire that the employer moderate what It seeks WIth respect to the applIcatIOn of semonty m order to advance other legItimate mter ests, mcludmg the affected employees' mterest m achlevmg the other goals set out m the prOVlSIOn. I agree WIth the umon that the words "on the baSIS of seruonty" m para- graph l(a) of AppendIX 9 do not mean "on the baSIS of semonty by pOSItIOn" or" by department." I do not agree that those words describe selectIOn m the manner described by the umon's advocate m argument. I agree WIth the em ployer that It would not have been sensible for the employer to have sought to have offers made solely on the baSIS of semorIty It would have made no sense, for example, to seek to ensure that a bUlldmg caretaker at the agrIcultural col lege m KemptVllle be offered a lecturer's Job at the agrIcultural college m Rldge- town mereoly because the caretaker was semor to the mcumbent lecturer I agree that there must be lImIts on what the employer can be expected to seek m Clr cumstances lIke those of thIS case. I do not agree that those lImIts must come from readmg more words of umversal apphcatlOn mto the language of the prOVl 9 Slon. In my VIew, the operative lImIts are those whIch flow from the use of the word "reasonable" to describe the efforts the employer IS oblIged to make In opemng, the uruon's advocate mdlcated that It was seekmg a declara- tIOn that "the employer was mcorrect to lImIt semonty by department or Job" In the course of the hearmg, he stated that the only Issue was the meamng of the words "on the basIs of semonty," that the reasonableness of the employer's ef forts was not somethmg I was to deCIde Post-hearmg WrItten submlsslOns con firm that neIther party conSIders It to have been m Issue whether the employer satisfied Its oblIgatlOn to make reasonable efforts. If the propOSItion that "the employer was mcorrect to lImIt semonty by department or job" refers to what the employer actually sought m ItS dealmgs WIth the uruversIty, then I cannot say whether that IS so wIthout addressmg the questlOn willch the partIes have wIthheld from conslderatlOn. whether the em- ployer's efforts were "reasonable efforts." The fact that a goal IS defined m terms of selectlOn by semorlty only does not mean that the employer IS bound to pro- pose that very tillng to a new employer without regard to what IS reasonable m the CIrcumstances, any more than a uruon bargammg for a first collectIve agreement would be bound to make that ItS opemng posltlOn before movmg to a proposal that reasonably takes other factors mto account. In answer to the narrow questlOn posed, I can only say that the employer was mIstaken when It saw m the words "on the baSIS of senIorIty" a umversally applIcable "by posltlOn" or "by department" lImItatIOn. Tills IS not a findmg that the employer failed to fulfil ItS oblIgatlOns under AppendIX 9 It does not neces sanly follow that what the employer actually dId m ItS dealmgs With the umver SIty was "wrong" If the parties need to have that or any other Issue determmed, they may ask the RegIstrar to relIst thIS matter for further hearmg Dated at Toronto tills 8th day of May, 1997 c-" (~ ~~\j W Owen V Gray, V Ice-Chair-