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Home My WebLink About1998-0893.Union.98-10-09 Decision ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO _II 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) 326-1396 GSB #0893/98 OPSEU 98U107 IN THE MATTER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN Ontano PublIc SefYlce Employees Uruon (Druon Gnevance) Grievor - and - The Crown m Right of Ontano (Mirustry of Community and SOCIal SefYlces) Employer BEFORE Loretta Mikus Vice-Charr FOR THE DaVid Wnght UNION Counsel Ryder Wnght Blarr & Doyle Bamsters & SolIcItors FOR THE DaVid Strang EMPLOYER Counsel, Legal SefYlces Branch Management Board Secretanat HEARING September 30, 1998 October 1, 1998 "- Tlus award concerns an application from the Umon for mtenm relief m the form of an order proInbltmg the Employer from proceeding WIth Its plan to transfer some 4600 SOCIal asSIstance files under the Family Benefits Act to the Regional Municipality of Ottawa-Carleton (RMOC) on October 1, 1998. The. applicatIon was made pursuant to an agreement reached m June of tIns year m wluch the Employer agreed to watt fifteen (15) days before transferring any files to allow the Umon to . challenge the reasonable efforts leading to the agreement. In order to hear full eVIdence and argument from the partIes, the heanng extended beyond that fifteen day tune linut. The Employer agreed to postpone any actIOn until ItS release. The Issues m tlus case anse out of the enactment of Bill 142. As the result of the Government's 1ll1tiatIves, chents formerly on the proVInCIal rolls as reCIpIents under Family Benefits Act will now become the responsibility of deSIgnated regional earners, one of wluch IS the RegIOnal MumcIpality of Ottawa-Carleton. That mvolves the transfer of approxunately 4600 files from the prOVInce to RMOC As well, pursuant to the Ontario Disability Support Program Act (ODSPA), persons WIth dIsabilItIes will be the responsibility of the proVInCIal government and any files currently m the MumcIpality will be transferred to the proVInCIal offices. As a result, the prOVInce, as of January 1, 1998, no longer accepted or processed new apphcatIons for SOCIal asSIstance and drrected those applicatIOns to the regIOnal camer The Board has dealt WIth the Issue of mtenm relief m sunilar SItuatIOns and has established the test to be applied m collSldenng whether It would be appropnate to make an order m the crrcumstances. That test requrres that the applicant prove that there IS an arguable case and that the balance of \ 1 2 potentIal harm or mconvenience warrants such an order In coIlSldenng that question, I have regard to a deCI.SIOn of a Board charred by ArbItrator Kaplan that was asked if It had the junsdictIOn to make an order for interim relief gIven the clear statutory order . prolnbrtmg the provmce from processmg new clauns for SOCIal asSIstance. (GSB # 1859/07, May 15, 1998) The Employer took the poSition that the Board could not direct the province to do something that was statute barred. The Board agreed that there was no basIS for It to dIrect the Employer to contmue to accept or process new applicatIOns when It was specdlcally prohibIted from domg so It determmed, however, that It dId have the jUnSdlctIOn to deal With the eXIstmg caseload because, while the government's mtentIOns were expressly stated to be a complete transfer offiles, It had not set any explicIt tIme linnt for that transfer In lIght of the substantIal nghts of the DIllon members under the collective agreement, that Board held It was entitled to consider the DIllon's request for mtenm relief m respect of those files. Assummg then that I have the junsdictJ.on to make an order m respect of the files presently under the control of the Employer, I need not address the question of whether the Vruon has an arguable case because, m my View, It has not established the balance of harm or mconveruence favours an order for mtenm relief Smce January of tlus year, the RMOC has accepted apphcations for SOCIal asSIstance that would have, under the old rules, been the responsibility of the provmce. The additIOnal workload was prenused on the additIOn of more staff, winch has been delayed because of the negotiatIOns between the Mirustry and RMOC and between RMOC and the CUPE locals affected by the change. That has had an lll1pact on ItS ability to proVide those sefYlces. 3 I accept the DIllon's subnnssions that, in considering the balance ofharm, I am to consider the harm to the parties to this agreement, that IS the DIllon and the Employer I also accept the DIllon's argument that the Employer cannot negotiate an agreement that breaches ItS dutIes under the collectIve agreement and then htde behInd that agreement by argumg that an order agamst It will have . a negatIve unpact upon ItS relationshtp WIth the other party to the negotiatIOns and jeopardise the agreement. Nevertheless, 10 tlus partIcular case before me, I am not persuaded that there would be Irreparable harm to the Uruon or Its members If the Employer were allowed to proceed WIth the transfer offiles. There are more pOSItIOns available than staff needing those posItIons. More than half of the Mirustry staffwill be retaIned to handle the applications under the ODSPA. It would appear from the number of poSItIOns available at RMOC that anyone from the Mirustry seekIng employment WIth the RMOC will be offered a Job It may be true that some of the terms of those offers are 10adequate or even Improper under the reasonable efforts obligations of the Employer F or example, under the agreement WIth the CUPE local and RMOC, the Ministry staffwill have to be 10terviewed for theIr new pOSItIons. They will have to serve a three month probatIOnary penod. Their seIllonty will be restncted 10 apphcatIon for a varymg length of tune depending on CIrcumstances. There are other aspects of the agreement that the DIllon takes exception to and may change after a heanng on the ments. All of those, 10 my VIew, can be addressed by a remedIal order tfthe DIllon succeeds 10 ItS gnevance. Tlus IS not a case where a deCISion to apply for a posItIon means a move to another City, as has been the case in other SItuatIOns. NeIther does It involve the Irrevocable dismantling of a program or sefV1ce that cannot be reconstructed tf the DIllon gnevance succeeds. The fact IS that thts I 4 work will ultunately be transferred and the employees will have to make appropriate adjustments m theIr personal cIrcumstances to accommodate those changes. A transfer to RMOC would require little, If any, disruptIon to the personal CIrcumstances of most employees. The work mvolved will be, for most of them, the same work they have been domg for the Mirustry If the Employer has . breached Its obligatIons under the collectIve agreement, the breaches will mvolve the terms and conditions of their work, which can be rectIfied if necessary On the other hand, the eVIdence before me suggests that a delay m the transfer of tills work will have consequences to the Mimstry as an agent of the government. They have been unable to provide some of the servtces It proIllised the people of Ontano because of delay and workload problems. People With disabilitIes are eligible for some additIonal serVIces through the provrnce. SmgIe support parents are eligible for trammg, resume wntmg and mtervtew support that has been derued them because theIr files are still With the provrnClal office. The harm or mconveruence to the Employer IS that It cannot meet ItS obligatIOns to these people. Its ultunate goals respectmg sole support parents and employment are not bemg met. The lost opporturutles to those people are, obVIously, nnpossible to assess WIth any certamty That IS the nature of an apphcatlOn for mtenm rehef In tills case, the Union's concerns are mamly about lost Opporturutles that cannot be replicated or replaced after the fact. In my VIew, the potentIal detnment to the Mirustry because ItS failure to meet the needs of the people it serves likely to be greater than any harm or mconveruence to the Union and ItS members if the transfer of files 15 further delayed. I note also the partIes are agreed that tlus matter will proceed on an expedIted basIS and that a 5 decISIon on the ments will be sought as qUlckIy as poSSIble. In the CIrcumstances, some of the general concerns of the Umon nnght be addressed before they can become indiVIdual gnevances. F or these reasons the application for mtenm relief IS demed. Signed thls 9th day of October, 1998 /~ );dZu--? Loretta Mikus, Vice-Charr