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HomeMy WebLinkAbout1997-2127UNION98_09_09 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 FACS/MILE/TELECOPIE (416) 326-139<5 GSB # 2127/97 OPSEU 98UO 1 0 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Uruon Gnevance) Grievor - and - The Crown ill Right of Ontano (Mirustry of Commuruty and SOCIal SefVlces) Employer BEFORE N Dlssanayake Vice-Charr FOR THE DaVId Wnght GRIEVOR Counsel Ryder Wnght Blarr & Doyle Bamsters & SoliCItors FOR THE DaVId Strang EMPLOYER Counsel, Legal SefVlces Branch Management Board SecretarIat HEARING August 3 1, 1998 2 PRELIMINARY DECISION This is a union grievance dated January 26, 1998 wherein it is alleged that the Ministry of Conununity and Social Services ("MCSS" ) failed to comply with its "reasonable efforts" obligation under Appendix 9 to the collective agreement, with regard to the divestment of its Vocational Rehabilitation Services (VRS) program While the grievance covers the whole VRS program, this decision deals with a preliminary objection by the employer confined to the arbitrability of the grievance as it pertains to one aspect of the program, namely the services provided to Post Secondary Students with disabilities (Hereinafter referred to as "student program") Some factual background presented to the Board on consent must be set out to put the employer's objection into context The government of ontario undertook a major reform of its Social Assistance Program by enacting the Social Assistance Reform Act, conunonly referred to as "Bill 142" Bill 142 replaces 3 pieces of legislation under which social assistance was provided hitherto in ontario Those are the Family Benefits Act, The General Welfare Act and the Vocational Rehabilitation Services Act (VRSA) The Family Benefits Act was repealed effective June 1998 and the General Welfare Act was repealed effective May 1998 The services previously provided under those 2 Acts are now provided under two new Acts, the ontario Disability Support Program Act and the Ontario Works Act Under Bill 142, the VRSA is slated to be repealed in March of 1999 As part of the resulting change, it is projected that by the fall of 1998 the whole VRS program currently administered by MCSS would be wound up and the functions and services transferred elsewhere It 3 is common ground between the parties that the student program constituted a significant portion of the VRS program and the work performed by VRS counsellors in the bargaining unit As part of the winding up of the VRS program, the student program ceased to be the responsibility of the VRS effective April 1, 1998 That responsibility was transferred to the Ministry of Education and Training (MET) As a part of this change, funds in the amount of $4 9 million were transferred from MCSS to MET This amount did not include any wages of OPS employees MET in turn transferred the responsibility for providing services under the student program to a number of Universities and Colleges and allocated $3 million out of the $4 9 million it received from MCSS to those institutions The remaining $1 9 million was to be allocated to a number of institutions in the united States providing specialized sign language education to ontario secondary School students with hearing impairment The present dispute is not concerned with the latter It is agreed that as of April 1, 1998 or thereabouts, the student program was transferred to various universities and colleges in ontario, and MCSS employees no longer performed any of their functions relating to that However, while that eliminated a significant portion of their normal duties, all bargaining unit employees have continued to be employed full-time to date, because there was a back-log of work in other areas of the VRS program No employee had received a notice of surplus as of the date of the hearing, August 31, 1998 4 The employer's position is that the "reasonable efforts" provision has no relevance or application as far as the transfer of the student program was concerned because it did not affect any OPS jobs The relevant portion of Appendix 9 is as follows The Government is aware that its restructuring initiatives over the next. two fiscal years (1996/97, 1997/98) could have a significant effect on employees, some of whom have served fro a lengthy period Accordingly, commencing with the ratification of the collective agreement and ending on December 31, 1998, the Employer undertakes the following 1 (a) The employer will make reasonable efforts to ensure that where there is a disposition or any other transfer of bargaining unit functions or jobs to the private or broader public sectors, employees in the bargaining unit are offered positions with the new employer on terms and conditions that are as close as possible to the then existing terms and conditions of employment of the employees in the bargaining unit, and where less than the full complement of employees is offered positions, to ensure that offers are made on the basis of seniority When an employee has been transferred to a new employer he/she will be deemed to have resigned and no other provisions of the collective agreement will apply except for Article 53 or 78 (Termination 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 seniority are not carried over to the new employer, the employee may decline the offer In such a case, the employee may exercise the rights prescribed by Article 20 (Employment Stability) and/or paragraphs 2 or 5 of this letter The employee must elect whether or not to accept employment with the new employer within three (3) days of receiving an offer In default of election, the employee shall be deemed to have accepted the offer The employer admits that when the planned winding up of the VRS program is completed in the fall of 1998, bargaining unit jobs will be affected and employees will have to be surplused However, he points out that even if surplus notices were issued on September 1, 1998 (the day after the hearing) , employees will remain on OPS payroll for at 5 least 6 more months - the period of notice required by the collective agreement Moreover, once identified as surplus, employees may have opportunity to be assigned or to displace less senior employees Others may opt to receive a severance package and retire At this point, none of this has happened because no one has even been identified as surplus All employees continue to be employed in the OPS on a full-time basis Thus, employer counsel argues, no reasonable efforts obligation exists because to date no OPS job has been impacted upon by this particular transfer of functions Counsel characterizes what occurred as a transfer of excess work, which has still left enough work to keep the bargaining unit employees fully employed Counsel recognized that the reasonable efforts obligation under Section l(a) of the Appendix is said to arise "where there is a disposition or any other transfer of bargaining unit functions or jobs" He admits that bargaining unit functions relating to the student program have been transferred to the "private or broader public sectors", i e universities and colleges However, he contends that the provision should not be literally interpreted Regard must be had to the purpose of the Appendix, which he submits, is to ensure that where OPS employees' jobs are lost as a result of a transfer of functions, the employer would make reasonable efforts to obtain job offers from the employer to whom the transfer is made The intent is to ensure that no OPS employee is left without a job In the present scenario, no employee has lost his or her job as a result of the transfer of the student program In those circumstances it makes no sense, he submits, to require that the employer must make reasonable efforts to obtain alternate job offers 6 Counsel for the union disagrees that what occurred was a transfer of excess work The transfer was a direct result and an integral part of government restructuring He submits that given the agreement that as of April 1998 a significant portion of the bargaining unit functions were transferred to the broader public sector, the reasonable efforts obligation is clearly triggered under Section l(b) He contends that if the employer's objection is successful, it means that where a divestment is made in stages, the reasonable efforts obligation will only be triggered at the tail-end of the divestment The union will not benefit from the Appendix as far as the bargaining unit functions which had been previously transferred in stages, as part of a government restructuring plan There is no disagreement that the ultimate goal of the Appendix is to require that the employer make reasonable efforts to ensure that any employee affected by a transfer of functions or jobs, continues to have a job with the new employer with terms as close as possible to the job he had in the OPS However, does that mean that the employer has no obligation under the Appendix until the point of time when an employee is left without a job? If the employer is correct in this regard, the reasonable efforts obligation would not be triggered even when an employee is identified as surplus because that does not necessarily mean the employee is without a job He may be entitled to an assignment or displacement under article 20 Clearly, the existing jurisprudence does not support a proposition that the employer is entitled to do nothing until employees are actually out of a job The Board has clearly recognized that the employer must act at a very early stage The reason 7 is that the earlier the employer acts, the better the chances that its reasonable efforts will produce successful results The need to act as early as reasonably possible, indeed, is part of the ~reasonableness" expected of the employer In Re OPSEU & MCSS, 2779/96 and 141/97 (Kaplan) the Board addressed the question of when the reasonable efforts obligation begins, and whether the obligation is confined solely to employees identified for surplus At p 19 Mr Kaplan wrote Having said that, it is my view that the reasonable efforts obligation begins as soon as the decision to divest is made It is not confined solely to employees who have been identified for surplus It applies to all employees in a facility for, as this case demonstrates, it is obvious that the obligation cannot be applied piecemeal when an entire facility is being closed down and the work transferred to the BPS Certainly, the obligation to make reasonable efforts does not arise only when specific employees are identified for surplus for that identification may take place at a time when no reasonable efforts can be made Moreover, as employees will be generally surplused by seniority, divestment plans must take that into account and ensure, inasmuch as possible, that senior employees are not effectively deprived of the benefits of the provision In Re OPSEU and MBS, 1712/97, I also considered the same issue at pp 14-15 In endorsing Mr Kaplan's view, I wrote While the foregoing is sufficient to dispose of this grievance, it will be useful to comment upon a dispute between the parties as to when the employer's reasonable efforts obligation is triggered The union took the position that the obligation is triggered as soon as a decision is made to embark upon a divesting process such as a decision to issue a RFP or a RFP/CPP The employer, on the contrary, was of the view that no obligation to make reasonable efforts came into play until the final vendor is identified and a Memorandum of Understanding executed with that vendor setting out the rules governing negotiations for the signing of a final agreement In the MCSS case (supra) at p 19, Mr Kaplan was of the view that ~the reasonable efforts obligation begins as soon as the 8 decision to divest is made" The employer reasoned that the commencement of a RFP or RFP/CPP process does not mean that the employer has decided to divest The employer is merely testing the market to see if it should proceed to divest Thus, if no suitable responses are received or if negotiations with the selected vendor are not successful, one of the options available to the employer is to decide not to proceed with the divestment . It is true that the final decision to divest is not made until an agreement is reached with respondent However, it is inconceivable that the parties would have intended that the reasonable efforts obligation would only commence after the final agreement is reached, because by then the employer is bound by the terms of that agreement and it would be too late to make any "reasonable efforts" for any purpose In my view, it makes much more sense to find that the parties intended the obligation to begin as soon as the employer decides to embark on a divestment process, e g by deciding to release a RFP From that point on, the employer must be guided by, in addition to its own business and other goals, the goal of obtaining job offers in compliance with Appendix 9 In the present case the employer has decided to divest itself of the whole VRS program The transfer of the student program functions is a part of that In fact the parties agree that the student program constituted a significant portion of the total VRS program to be divested If in a situation, as here, where the whole divestment is not carried out in one transaction the reasonable efforts obligation is not imposed until the final stages at which employees actually lose their jobs, that obligation would be meaningless By the time the jobs are finally lost, it will be too late to make any efforts with regard to portions of the operation that had already been transferred in stages To adapt Mr Kaplan's words to the facts of this case, the reasonable efforts obligation cannot be applied piecemeal when an entire program is being transferred to the broader public sector However, having concluded that the reasonable efforts obligation begins as soon as the 9 employer decides to embark on a divestment process, in the MBS case (supra) I went on to qualify that general finding as follows Having said that, it must be added that, just as much as what constitutes reasonable efforts will vary from case to case, what steps the employer is reasonably required to take pursuant to the obligation may vary during the various stages of the divestment process In some circumstances, there will be little the employer can do by way of reasonable efforts in the early stages of the process In other circumstances, there may be reasonable efforts the employer can make right from the beginning As the process progresses, for example with the identification of the positions to be surplused and the short- listing of the vendors etc , the employer will be expected to be increasingly proactive in pursuing its reasonable efforts obligation What constitutes reasonable efforts in any case at a given stage of the divestment process would obviously depend on the particular circumstances of each case I reiterate and confirm the general proposition, as well as the qualification I made in the MBS decision In the present case, MCSS had clearly made a decision to divest itself of the whole VRS Program The reasonable efforts obligation was triggered at that point At the relevant time, the divestment process had reached a particular stage Part of the VRS Program had already been transferred However, no employee had been identified as surplus and no jobs had been lost up to this point However, everyone agrees that job losses will be inevitable in the near future, when the whole VRS Program is transferred out of the MCSS What constitutes "reasonable efforts" in these particular circumstances is a matter to be decided on its merits In other words, the reasonable efforts obligation was triggered as soon as the decision was made to divest the VRS program The real dispute between the parties is as to what reasonable efforts, if any, were required of the employer given the manner in which the divestment occurred and the stage it had reached as of the time of the filing of the grievance 10 The result of the foregoing is that the Board rejects the employer's position that the reasonable efforts obligation did not apply to the transfer of the student program functions If the union so desires, it may seek a hearing on the merits I am not seized of this matter for that purpose Dated this 9th day of September, 1998 at Hamilton, ontario ~ey~ Nimal V Dissanayake Vice Chairperson