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HomeMy WebLinkAbout1997-1859UNION98_05_15 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB#1859/97 97U149 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Gnevor - and - The Crown m Right of Ontano (Mimstry ofCommumty and SOCial Services) Employer BEFORE W Kaplan Vice-Chair FOR THE G Leeb UNIO N GrIevance Officer Ontano PublIc ServIce Employees Umon FOR THE D Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING May 6 1998 - 2 IntroductIOn As IS well known, the Ontano government has embarked on a dIvestment program WIth many of ItS functIOns transferred to the pnvate sector, the broader publIc sector and munIcIpal governments Bill 142, whIch received Royal Assent on November 28, 1997, repeals certaIn acts, IncludIng the Family Benefits Act and enacts some new legIslation IncludIng the Ontarzo Works Act, In bnef, as a result of Bill 142, the provInce, as of January I, 1998, no longer accepts or processes new applIcatIons for soaal aSSIstance by and large dIrecting IndIVIduals In need to theIr murucIpalIty whIch IS now charged WIth prOVIdIng SOCIal aSSIstance under the Ontano Works Act In November 1997, the unIOn filed a gnevance allegIng that the employer was In vIOlation of Its reasonable efforts oblIgatIons under the collectIve agreement. That gnevance has not yet been scheduled for a hearIng on the ments However, on May 6, 1998, the uruon came before the Board and asked that the Board exerCIse Its power to Issue an Intenm order precludIng the transfer of any bargaInIng unIt work to muruapal governments until the gnevance had been heard on Its ments FollOWIng dIscussIOn WIth the partIes, It was agreed to bIfurcate the case hearIng submISSIOns first whether the Board had, g1Ven the prOVISIons of Bill 142 and the regulatIOns filed thereunder, the JUTIsdIctIOn to grant the requested relIef and, _ assumIng that the answer to that question was in the affirmative, to hold a subsequent heanng as to whether thIS was an appropnate case In whIch to exerCIse that JunsdIctIOn. Employer Argument In the employer s submIssIOn, the Board dId not have the JurIsdICtion to grant the requested relIef. Section 1 of Schedule D of Bill 142 prOVIdes. "DespIte the FamIly Benefits Act, on and after January 1, 1998, no applIcation for an allowance or benefits shall be accepted or processed under that Act. "In the employer's submIssIOn, thIS 3 provIsIOn made It perfectly clear that the OntarIo government as employer could no longer accept applIcahons for aSSIstance under what was the goverrung legIslahon. As a result, and the LegIslature havmg spoken, there was no baSIS for the Board to, m effect, Issue an order dIrectmg the employer to do somethmg that was statute barred Employer counsel also took the posIhon, however, that there was no JurIsdIchonal baSIS to mterfere WIth on-gomg dIvesbnent of thIS SOCIal assIstance functIon for that funchon was now governed by regulahons passed under the Ont!mo Works Act, the pIece of legrslahon that superseded the FamIly Benefits Act Accordmg to Regulation 137/98, as of April 30, 1998, "The DIrector under the Fmmly Benefits Act shall transfer the responsibilIty for provIdmg benefits to reCIpIents to the admll11strator m the appropnate geographIc area under the OntarIo Works Act, 1997 " In the employer's VIew, the use of the word "shall" was SIgnificant makmg mandatory the transfer of the functIOns. And that bemg the case, the employer took the pOSItIOn that there was no JurIsdIchonal baSIS for the Board to stay the transfer of - work pendmg the dISpOSItIOn of the gnevance Any such order, m the employer's submIssIOn, would have the effect of preventIng the DIrector from domg the Job mandated by regulahon. Moreover, the employer pomted out that hundreds of thousands of OntarIO reSIdents were affected by thIS legIslahon and that the hme frame for the transfer of files - a process set to begm in July and to conclude by the end of the year - should not be mterfered WIth by the Board exercIsmg a procedural power m the context of a gnevance arbItratIOn parhcularly smce the employer was enhtled under the collectIve agreement to dIvest bargall11ng unIt work. The uruon could, m the employer's VIew, as It dId here, take issue WIth whether the employer had used reasonable efforts, but even If It were found that the employer had not, the uruon could still obtam appropnate relIef. For all of these reasons, and others, the employer asked that the uruon request be dIsmIssed. 4 Union Argument In the unIOn's submIssIOn, there was no doubt but that the Board had the jUnsdIctIOn m appropnate cases to dIrect mtenm relIef, and a number of authontIes were referred to m support of thIS submISSIOn. The only questIOn whIch had to be addressed was whether there was any jUnSdIctIOnal bar m thIs partIcular case which would preclude heanng the umon's request And, not surpnsmgly, the umon took the posItIon that there was not. i In the union's submIssIOn, ItS request had to be consIdered m context begmnmg wIth the reasonable efforts prOVIsIOn of the collectIve agreement The employer had to make reasonable efforts to find work for bargammg unIt employees, and the unIOn took the posItIOn that m thIS case no such efforts had been made. Moreover, the unIOn argued, It'S applIcatIOn was both tImely and compellmg for It was clear that munICIpalItIes had begun hIrmg m order to meet theIr new statutory responsibilItIes. If jobs were filled before the grIevance was heard then they would not be available for bargarmng unIt members lllmtIng the relIef available to the unIon and ItS members should the grIevance prove successful. Havmg establIshed thIS framework, the umon took the posItIon that when Bill 142 was read as a whole It was clear that It contemplated a dIscretIonary transfer of work and furthermore that It was constramed by the prOVIsIOns of the collechve agreement: provisIOns that requIred the employer to make reasonable efforts It was also clear, when the prOVIsIOns of the legIslatIOn were carefully exammed, that the employer had a great deal of dIscretIon m deSIgnatIng "geographIc areas" for delIvery purposes and then determmmg the restrIctIOns and condItIons for the delIvery by the delIvery agent of SOCIal aSSIstance serVIces. Srmply put, the government, as employer, could, If It WIshed, set the terms and condItIons upon whIch the work was transferred and could, moreover, agam If It WIshed, pursuant to sectIOn 50, contInue to do the work Itself Indeed, in the unIon's submIssIOn, properly construed, there was nothmg 5 prohibItmg uruon members from contInumg to do thIs work or mandatIng ItS nnmedIate transfer - a transfer WIth ObVIOUS detnmental consequences for the uruon and ItS members. GIven the well-accepted prmciple that legIslatIon affectmg eXIstIng nghts must be StrIctly construed, and given the detnment to members of the bargaInIng urut If It IS determIned that reasonable efforts were not made but If that determInatIon takes place after the new Jobs have been filled, thIS was, m the uruon's Jiew, a case that cned out for relief. In the final analYSIS, m the uruon's submISSIOn, there was nothIng In the legIslatIon that mandated the nnmedIate dIvestment of the bargaInmg urut work. GIven that fact and gIVen the fact that the Board was set up preCIsely to hear and deCIde gnevances such as thIS one allegIng a VIOlatIOn of an Important collectIve agreement prOVISIOn, the Board should, the umon urged, hear ItS argument for a stay Decision HaVIng carefully conSIdered the submISSIOns of the partIes, I am of the VIew that the employer IS, In part, correct. BIll 142 clearly precludes the employer from acceptIng or processIng new applIcatIons after January I, 1998, and that work therefore, IS gone. By legIslatIve act, that work IS beyond the scope of any order for Intenm relIef. For good or for ill, the legIslature has spoken and establIshed a scheme for the muruCIpalItIes- WIth lImited exceptIons of no real relevance - to prOVIde SOCIal aSSIstance. There IS no baSIS for thIS Board to dIrect the employer to contInue acceptIng or processmg new applIcatIons when the legrslature has clearly prohibIted It from dOIng so I am, however, also of the VIew, WIth respect to the transfer of the existmg case load, that while the legIslature has made clear ItS mtentIOn that the eXIstmg case load be transferred to the new prOVIders of these servIces, It has not establIshed explICIt tIme lInes for so dOIng WhIle the DIrector "shall" transfer the responsibIlIty for prOVIdIng benefits, the regulatIons arguably allow for conSIderable dIscretIOn In gIvmg thIS effect. The regulatIon does not say, for Instance, that the work shall be transferred / -;?' 6 "rmmedlately" or"forthwrth" (although, It must be saId that It clearly contemplates that the transfers should begm after April 30/ 1998 upon the Ontano Works Act commg mto effect) This must, however, be consIdered alongsIde the fact that the umon and ItS members enJoy substantIal rIghts under the reasonable efforts provIsIon of the collechve agreement. ThIS entItlement IS a result of a bargam reached between the partIes. Applymg well-accepted canons of statutory mterpretatIon, one must mterpret the regulation m a way that does the mmlffium damage to eXIstIng vested rIghts. AccordIngly, and, haVIng consIdered all of these crrcumstances, I am of the VIew that the umon IS entItled to apply for a stay on the transfer of the eXlstmg case load pendmg the resolutIon of ItS grIevance. There IS nothIng In the legIslatIon or regulatIons passed thereunder that would preclude such an order from cornIng mto effect. All of thIS, of course, asswnes for the sake of argument that the unIOn IS able to satIsfy the Board that thIS IS, followmg an approprIate balanCIng of mterests and applicatIon of establIshed crlterIa, a proper case to exerCIse dIscretIon and grant a stay AccordIngly, the questIOn as to whether thIs IS an approprIate case to grant InterIm relIef WIth respect to the transfer of the eXlstmg case load may be brought back before me or any other chaIr of the Gnevance Settlement Board. ( !> u.. DATED at Toronto thIS y.ttl day of May 1998 f/ l---~ Wilham Kaplan V Ice-ChaIT i i i I I I I I I I I I ! ! ~ !