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HomeMy WebLinkAbout1999-0405.Union Grievance.01-05-09 Decision o NTARW EMPLOYES DE L4 COURONNE CROWIVEMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT 0nbIrI0 BOARD DES GRI EFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0405/99 UNION#99U026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Dmon (Dmon Gnevance) Gnevor - and - The Crown m RIght of Ontano (Management Board Secretanat) Employer BEFORE RandI Hammer Abramsk, Vice-Chair FOR THE Knstm A. ElIot, Counsel GRlEVOR ElIot, SmIth Bamsters and SolIcItors FOR THE Kelh Burke Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING Februan 28 2001 conference call March 30 2001 2 AWARD ThIS IS a polIcy gnevance contestmg the Employer's posItIOn that mdIvIduals who apply for restncted competItIOns under ArtIcle 20.2 3 are not entItled to gneve wIth respect to those competItIOns The Umon seeks a declaratIOn that such mdIvIduals do have recourse to the gnevance procedure m these CIrcumstances and that the standard of reVIew should be the same as for classIfied employees - to have theIr qualIficatIOns fully and fairly assessed and to partIcIpate m a competItIOn free of fatal flaws The relevant sectIOns of ArtIcle 20 Employment StabIlIty are set forth below' 20.2 NOTICE AND PAY IN LIEU 202 1 An employee IdentIfied as surplus shall receIve SIX (6) months notIce of lay-off or wIth mutual consent, an employee may resIgn and receIve eqUIvalent pay m lIeu of notIce 20 2.2 20 2 3 Where an employee accepts pay m lIeu of notIce pursuant to thIS artIcle any further entItlements under thIS Central CollectIve Agreement are forfeIted save and except any nghts under ArtIcle 53 or 78 (TermmatIOn Payments) and ArtIcle 203 (SeparatIOn Allowance) or paragraph 4 of AppendIx 9 (Employment StabIlIty) The employee wIll be elIgIble to apply for restncted competItIOns from the last day of work untIl twenty- four (24) months from the date on whIch lay-off would otherwIse have occurred, 2024 20 2 5 Where an employee who accepts pay m lIeu of notIce IS re-appomted to a posItIOn m the Ontano PublIc ServIce after the ongmally projected lay-off date, and pnor to the expIratIOn of a further twenty-four (24) months, the employee wIll repay to the mImstry all momes, excludmg tUItIOn fees, receIved under ArtIcle 20 3 (SeparatIOn Allowance) or paragraph 4 of AppendIx 9 (Employment StabIlIty) The employee's contmuous servIce 3 date for all purposes except ArtIcle 53 or 78 (TermInatIOn Payments) shall be deemed to Include both servIce up to the last day of actIve work and the accumulatIOn of servIce after the date of re-appoIntment. The new servIce date for purpose of termInatIOn pay shall be the date on whIch the employee recommences work. Also relevant IS ArtIcle 22, Gnevance Procedure In part, ArtIcle 22 provIdes as follows 22 1 It IS the Intent of thIS Agreement to adjust as qUIckly as possIble any complaInts or dIfferences between the partIes ansIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of thIS Agreement, IncludIng any questIOn as to whether a matter IS arbItrable Stage One 22 2 1 It IS the mutual desIre of the partIes that complaInts of employees be adjusted as qUIckly as possible and It IS understood that If an employee has a complaInt, the employee shall meet, where practIcal, and dISCUSS It WIth the employee's Immediate supervIsor Stage Two 22 3 1 If the complaInt or dIfference IS not resolved under Stage One, the employee may file a gnevance, In wntIng, through the Umon, wIth the semor human resources representatIve In the mImstry or hIS or her desIgnee Arguments of the Parties A. The Employer The Employer contends that under ArtIcle 20.2, an employee "may resIgn and receIve eqUIvalent pay In lIeu of notIce" In ItS vIew resIgnatIOn precedes the receIpt of pay In lIeu and once the employee resIgns, he or she IS no longer an "employee" of the Ontano publIc servIce entItled to utIlIze the gnevance arbItratIOn provIsIOns In the collectIve agreement. The gnevance arbItratIOn process, It submIts, IS specIfically lImIted to the Umon and "employees" It does not cover former employees, except for events that take place whIle the IndIVIdual IS employed (i e termInatIOn) It contends that events 4 whIch anse after an employee's resIgnatIOn cannot be challenged through the gnevance arbItratIOn process The Employer submIts that all potentIal gnevors under ArtIcle 20 2 3 no longer have "employee" status They are no longer part of the bargaInIng umt and have no access to the gnevance arbItratIOn procedure under the collectIve agreement. ThIS Board, It contends, has no jUnSdIctIOn over such IndIVIduals In support of ItS posItIOn, the Employer cItes to Re HoneJM'ell Ltd And United Automobile Workers Local 80 (1975) 10 LAC (2d) 446 (Hinnegan) In that case, a former employee alleged a vIOlatIOn of the long-term dIsabIlIty benefits provIsIOn In the collectIve agreement. She was not, at the tIme her claim arose or at the tIme her gnevance was filed, an employee of the company The board of arbItratIOn determIned that because she was not an employee covered by the collectIve agreement at the relevant tIme she had "no status whatsoever to file and pursue the gnevance procedure provIded In that collectIve agreement." The Employer contends that the fact that the Board does not have jUnSdIctIOn over such matters may lead to an IneqUIty IS not determInatIve In support, It cItes to OPSEU (Patricia Campbell) and Ministry of Health GSB No 1088/86 (1988) (Draper Vice-Chair) In that case, the Board ruled that It had no jUnSdIctIOn over an allegatIOn by an unclassIfied employee that the employer vIOlated ArtIcle 4 In the conduct of a job competItIOn, It noted that ItS rulIng left members of the unclassIfied servIce WIth no 5 recourse when they alleged that a competItIOn was Improperly conducted, but ruled at p 2 that "thIS seemIng IneqUIty IS for the partIes, not the Board, to address" The same, It argues, IS true In the Instant case The Employer further argues that under ArtIcle 20 2 3 an employee who elects pay In lIeu specIfically forfeIts "any further entItlements under thIS Central CollectIve Agreement" save and except for a lImIted number of specIfically lIsted nghts under ArtIcle 53 or 78 and ArtIcle 20 3 or paragraph 4 of AppendIx 9 It submIts that those lIsted nghts anse whIle the IndIVIduals are stIll employed, In contrast, It argues that theIr elIgIbIlIty to apply for restncted competItIOns anses after they are no longer "employees" of the government. The Employer asserts that an employee may gneve the specIfic entItlements set out In ArtIcle 20 2 3 but may not gneve any other matter The Employer contends that the last sentence of ArtIcle 20 2 3 that "[ t ]he employee wIll be elIgIble to apply for restncted competItIOns from the last day of work untIl twenty-four (24) months from the date on whIch lay-off would otherwIse have occurred" IS a gratUItous benefit offered to employees who had been In the publIc servIce for some tIme It allows them to apply for restncted competItIOns whIch, as a non- employee, would otherwIse be closed to them, It argues, however that It makes no sense from a practIcal pOInt of VIew to allow these non-employees to gneve such competItIOns Without semonty It submIts that they stand lIttle chance of successfully competIng agaInst employees wIth semonty because of the relatIve equalIty provIsIOn In ArtIcle 63 1 6 In support of thIS posItIOn, It cItes to OPSEU (Garrison) and Ministry of Transportation GSB No 1229/94 (1995) (Kaplan, Vice-Chair) In whIch the Board ruled, among other thIngs, Inter alIa, that where the successful candIdate In a job competItIOn was a classIfied employee wIth many long years of servIce he would have lIkely trumped the gnevor an unclassIfied employee, even If the gnevor had receIved a perfect score It also cItes to OPSEU (Norland) and Ministry of Correctional Services GSB No 3160/92 (1993) (Gorsky Vice-Chair) In whIch the Board ruled at p 22 that the rules of contract InterpretatIOn owe a good deal to common sense and must be applIed wIth a good deal of common sense The Employer contends that It makes lIttle sense to allow such gnevances, whIch would deplete the Umon's resources It submIts that allowIng such gnevances would open the floodgates SInce every restncted competItIOn that non-employees are allowed to partIcIpate In would be open to challenge The Employer further contends that under the specIfic terms of ArtIcle 20 2 3 IndIVIduals who elect pay In lIeu "forfeIt" "any further entItlements under thIS Central Agreement" whIch Includes the gnevance arbItratIOn provIsIOns of ArtIcle 22 It asserts that by excludIng the gnevance procedure the partIes expressed an Intent that the gnevance procedure would not apply "save and except" for the lIsted provIsIOns 7 In the alternatIve, the Employer argues that the "nght" surplus sed employees have to apply for restncted competItIOns should be lIterally Interpreted to mean that they are "elIgIble to apply for restncted competItIOns " penod, If they are precluded from applYIng, It submIts that may be gneved, but nothIng further ThIS lImIted "nght" It asserts, IS what the partIes agreed to In ArtIcle 20.2 3 and the Board has no power to alter or amend the collectIve agreement. Acceptance of the Umon's posItIOn, It asserts, would constItute an alteratIOn of the partIes' agreement. The Board, It argues, must gIve the language ItS "plaIn meamng" CItIng OPSEU (Norland) supra It contends that the fact that the gnevance procedure IS lImIted to "employees" further underscores that non- employees should not be allowed to gneve under ArtIcle 20.2 3 The Employer also cItes to OPSEU (AhluJ1,alia et al.) and Ministry of Transportation and Communications, GSB No 725/83 (l984)(Spnngate, Vice-Chair) In that case the Board ruled that the fact that unclassIfied employees could apply to competItIOns dId not gIve them the nght to gneve them, FInally the Employer submIts that If the Board determInes that such IndIVIduals may gneve under ArtIcle 20.2 3 the standard should be lImIted to "bad faith" The Employer argues that non-employees should not have greater nghts In terms of the arbItral standard of reVIew than unclassIfied employees 8 B. The Union The Umon submIts that the fundamental questIOn IS whether ArtIcle 20.2 3 creates a substantIve nght capable of gIVIng nse to a "dIfference between the partIes" If so the matter IS arbItrable under SectIOn 7(3) of the Crown Employees Collective Bargaining Act (CECBA) and the partIes cannot contract out of that statutory provIsIOn, The Umon contends that the fact that the surplus employees are no longer "employees" IS Irrelevant. The pIvotal Issue, It submIts, IS whether the collectIve agreement affords the surplussed employees a substantIve nght. It notes that even In Re HoneJl>>'ell Ltd and United Automobile Workers Union, Local 80 supra, cIted by the Employer It was noted that the Ontano Court of Appeal, In Re Blouin DrY)1,all Contractors Ltd And United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975) 8 O,R. (2d) 103 held that where the collectIve agreement In questIOn expressly confers benefits on non-employee members of the umon those benefits could be the subject of a gnevance and wIthIn the jUnSdIctIOn of a board of arbItratIOn under the agreement. The key the Umon submIts, IS whether the agreement confers a nght or benefit on a non-employee member The Umon asserts that ArtIcle 20 2 3 clearly confers a nght and benefit on surplus sed employees - the nght to apply to restncted competItIOns for a penod of twenty-four months It submIts that the language IS clear on ItS face, and that It IS one of the Inducements that was bargaIned for along wIth sIx-months pay In lIeu, severance pay and termInatIOn pay to encourage employees to elect the pay In lIeu optIOn rather than 9 seek to dIsplace another employee or seek redeployment. The rIght to apply to restrIcted competItIOns, It argues, IS a real benefit and provIdes surplussed employees wIth an opportumty to return to the publIc servIce Under ArtIcle 2025 If they apply to a competItIOn and are successful wIthIn the twenty-four month perIod, theIr contInuous servIce date Includes theIr prIor servIce It contends that thIS IS a sIgmficant substantIve rIght, not a gratUItous benefit, enforceable through the grIevance arbItratIOn procedure In support, It cItes to OPSEU (McIntosh) and Ministry of Government Services GSB No 3027/92 (1993)(DIssanayake, Vice-Chair) The Umon also submIts that the partIes dId not exclude such matters from grIevance arbItratIOn under ArtIcle 20.2 3 The fact that the grIevance procedure IS not specIfically exempted from forfeIture does not mean, It submIts, that the grIevance procedure was excluded, It contends that thIS provIsIOn does not read out the grIevance procedure It only reqUIres an employee to gIve up "entItlements" under the Central Agreement. The word "entItlements" It contends, refers to substantIve rIghts, not procedural rIghts In ItS vIew just as the employee's rIght to grIeve hIS or her entItlements under ArtIcle 53 or 78 and ArtIcle 203 or paragraph 4 of AppendIx 9 remaIn, so too does the rIght to grIeve the rIght to apply to restrIcted competItIOns In support the Umon cItes to OPSEU (Brown, Murdock Rogers) and Ministry of Municipal Affairs & Housing GSB No 1343 (1 997)(Kaplan, Vice-Chair) In whIch Vice-Chair Kaplan concluded at p 7 In dicta, that "the employer's submIssIOn that once an employee accepts the ArtIcle 20.2 3 optIOn he or she has no further rIghts to grIeve about anythIng IS a proposItIOn that seems dubIOus, at best." 10 Instead, the Umon contends that exclusIOn of a nght must be expressed In very clear terms and that the language of ArtIcle 20.2 3 and ArtIcle 22 falls short, The Umon contrasts the very clear exemptIOn from arbItratIOn of the dIscharge of probatIOnary employees found In ArtIcle 21.2 ("[f]or greater certaInty It IS understood that nothIng In ArtIcle 21 1 confers on a probatIOnary employee any nght to gneve or arbItrate hIS or her dIsmIssal) wIth the language In ArtIcle 20.2 3 It submIts that If the partIes Intended to exempt the nghts granted In ArtIcle 2023 from arbItratIOn, they would have done so USIng sImIlar contractual language In support of ItS contentIOn, the Umon cItes Re COlp of City of Windsor and International Assoc of Firefighters Local 455 (1975) 8 L.A>C (2d) 320 (Weathenll) and Re International Waxes Ltd and Oil, Chemical and Atomic Workers International Union (1977), 17 LAC (2d) 62 (SchIff) whIch hold that "clear language" would be reqUIred to bar a matter from arbItratIOn, If It IS possIble at all Further the Umon contends that even If ArtIcle 20.2 3 could be construed to read out the gnevance procedure, such a constructIOn would be vOId under SectIOn 7(3) of CECBA That provIsIOn reads follows Every collectIve agreement relatIng to Crown employees shall be deemed to provIde for the final and bIndIng settlement by arbItratIOn by the Gnevance Settlement Board, wIthout stoppage of work, of all dIfferences between the partIes an SIng from the InterpretatIon, applIcatIOn, admInIstratIOn, or alleged vIOlatIOn of the agreement, IncludIng any questIOn as to whether a matter IS arbItrable 11 In support of Its contentIOn that the partIes cannot contract out the arbItratIOn of substantIve rIghts under SectIOn 7(3) of CECBA, the Umon cItes to OPSEU (Pietroban) andMinistlY of Health, GSB NO 2257/95 (1997)(Mikus, Vice-Chair) OPSEU (Turcotte) and Ministry of the Solicitor General and Correctional Services GSB No 2196/97 (MarszewskI, Vice Chair) Re International Waxes Ltd And Oil, Chemical and Atomic Workers International Union supra Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. (1983) 147 D,L.R, (3d) 210 (Ont. C A) Re Consolidated- Bathurst Packaging Ltd (St. Thomas Division) and International Wooclliorkers of America, Local 2-337 (1981) 1 LAC (3d) 10 (Adams) The Umon argues that SInce the rIght to apply to restrIcted competItIOns creates a substantIve rIght, any provIsIOn whIch purports to take away the rIght to arbItrate a dIspute over that rIght IS VOId under SectIOn 7(3) of CECBA. AccordIngly It contends dIsputes over the rIght to apply to restrIcted competItIOns under ArtIcle 20.2 3 are arbItrable In terms of the standard of arbItral reVIew the Umon contends that the standard should be hIgher than the "bad faith" standard applIed to unclassIfied employees under OPSEU (McIntosh) supra It submIts that the language used In ArtIcle 20.2 3 - the rIght to apply to restrIcted competItIOns - IS broader than the lImIted rIghts unclassIfied employees have under ArtIcle 6 and would therefore encompass more of the prIncIples set out In ArtIcle 6 It contends that even though the surplus employees no longer have semorIty they are entItled to have theIr qualIficatIOns fully and fairly assessed and to partIcIpate In competItIOns free from fatal flaws It argues that when the purpose of the 12 provIsIOn IS consIdered - to provIde surplus employees wIth the opportumty to return to the publIc servIce and regaIn theIr semorIty - a broader standard of reVIew IS reqUIred, Decision 1 Arbitrability Based on the case law cIted, the questIOn of arbItrabIlIty of ArtIcle 20 2 3 depends on whether that provIsIOn creates a substantIve rIght on behalf of employees who elect pay In lIeu of notIce Whether the IndIVIdual IS an "employee" at the tIme of the grIevance or at the tIme the claim arose IS not determInatIve because a collectIve agreement may confer a rIght or a benefit on a non-employee that IS enforceable through the grIevance arbItratIOn procedure See Re Blouin DrJM'all Contractors Ltd and United Brotherhood of Carpenters and Joiners of America, Local 2486 supra cIted In Re HoneJM'ell Ltd And United Automobile Workers Local 80 supra. What matters IS whether the collectIve agreement creates a substantIve rIght and that IS a matter of contract InterpretatIOn, For a number of reasons, I conclude that the last sentence of ArtIcle 20.2 3 creates a substantIve rIght In surplus employees who elect pay In lIeu to apply to restrIcted competItIOns for a perIod of twenty-four months By ItS terms, ArtIcle 20.2 3 states that employees who elect pay In lIeu "wIll be elIgIble to apply for restrIcted competItIOns " By defimtIOn, a restrIcted competItIOn IS lImIted to current classIfied cIvIl servants or unclassIfied staff workIng In the OPS dUrIng 13 the postIng perIod, AccordIngly the abIlIty to apply to restrIcted competItIOns IS an abIlIty whIch non-employees do not enjoy It IS a real, tangIble, substantIve benefit. That the partIes Intended It to be meamngful, as opposed to gratUItous, IS eVIdent from the fact that It was bargaIned, It was a negotIated benefit. It was part of the package of benefits negotIated to encourage employees to accept pay In lIeu Instead of remaInIng to seek dIsplacement or redeployment opportumtIes It also takes on added meamng In lIght of ArtIcle 20.2 5 Under that provIsIOn, If an employee who accepted pay In lIeu successfully competes for a posItIOn WIthIn the twenty-four month perIod, hIS or her prIor contInUOUS servIce IS restored, GIven the Importance of an employee's contInUOUS servIce date under the collectIve agreement and In the OntarIo publIc servIce, the opportumty to compete and return to the publIc servIce WIthIn the twenty-four month perIod IS a substantIal and substantIve benefit. The fact that the words "elIgIble to apply" are used rather than "rIght to apply" makes no materIal dIfference StatIng that employees who elect pay In lIeu "wIll be elIgIble to apply" IS no dIfferent than statIng that they have the rIght to apply AccordIngly I conclude that the rIght to apply to restrIcted competItIOns contaIned In ArtIcle 20.2 3 IS a substantIve rIght In the employee who accepts pay In lIeu whIch may be asserted agaInst the Employer As such, a dIspute over It creates a "dIfference between the partIes arIsIng from the InterpretatIOn, applIcatIOn, admInIstratIOn 14 or alleged contraventIOn of thIS Agreement " as set forth In ArtIcle 22 and SectIOn 7(3) of CECBA I also conclude that the first sentence of ArtIcle 20.2 3 does not read out the grIevance procedure Counsel for the Employer acknowledged that an employee's claims under ArtIcle 53 or 78 and ArtIcle 20 3 or paragraph 4 of AppendIx 9 were subject to the grIevance arbItratIOn, but argued that the abIlIty to apply to restrIcted competItIOns was not. Counsel sought to dIStIngUISh the former benefits as arISIng whIle the IndIVIdual was stIll an actIve employee whIle the latter benefit arose thereafter She also argued that It was a gratUItous benefit. I cannot agree For the reasons already stated, the rIght to apply to restrIcted competItIOns IS a real, not a gratUItous, benefit. I also see no dIstInctIOn based on tImIng, Both separatIOn and termInatIOn benefits accrue upon resIgnatIOn, not before It. AccordIngly all of the benefits conferred In ArtIcle 2023 arIse after the employee resIgns I also conclude that far more explIcIt language would be needed to decIde that the partIes' meant to exempt grIevance arbItratIOn from the rIghts provIded under ArtIcle 2023 Re Corp of the City of Windsor and International Association of Firefighters, Local 455 supra, Re International Waxes Ltd And Oil, Chemical and Atomic Workers International Union, supra But even If ArtIcle 2023 could be read so as to exclude from arbItratIOn the rIghts provIded under ArtIcle 20.2 3 such an exclusIOn would be vOId under SectIOn 7(3) 15 of CECBA The case law cIted, IncludIng GSB case law clearly establIshes that where a collectIve agreement creates a substantIve, assertIble rIght agaInst the employer then "any provIsIOn In the agreement whIch blocks the resort to arbItratIOn to determIne the rIght would be vOId as contrary to [then]s 37(1) [of the Labour RelatIOns Act; now s 48(1)]" Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. supra at p.222 Then s 37(1) of the OntarIo Labour Relations Act IS substantIally sImIlar to s 7(3) of CECBA Accord, Re Toronto Hydro-Electric System and Canadian Union of Public Employees Local 1 (1980) 111 D,L.R. (3d) 693 (Ont. DIV Ct) Re C onsolidated- Bathurst Packaging Ltd (St. Thomas Division) and International Woocfu,orkers of America, Local 2-337 supra In OPSEU (Turcotte) supra, Vice-Chair MarszewskI determIned that the GSB had JUrISdIctIOn to determIne If a probatIOnary employee has been dIscharged for just cause or termInated due to a bona fide release, despIte provIsIOns In the collectIve agreement whIch read "[a]ny probatIOnary employee who IS dIsmIssed or released shall not be entItled to file a grIevance" and "[f]or greater certaInty It IS understood that nothIng In ArtIcle 2 1 1 [whIch reqUIres just cause for dIscIplIne and dIsmIssal of employees] confers on a probatIOnary employee any rIght to grIeve or arbItrate hIS or her dIsmIssal" Vice-Chair MarszewskI found that the collectIve agreement conferred on all employees an unqualIfied substantIve rIght not to be dIsmIssed wIthout just cause, and that a procedural provIsIOn regardIng access to the grIevance arbItratIOn procedure could not constItute a bar to and defeat a substantIve rIght. (p 22) 16 Vice-Chair Mikus In OPSEU (Pietroban) supra, made a sImIlar rulIng, In that case, the Employer argued that a Memorandum of Agreement In regard to GO-Temp employees dId not Include the grIevance arbItratIOn provIsIOn, Vice-Chair Mikus determIned that the Memorandum of Agreement, as a collectIve agreement, could not have excluded the grIevance arbItratIOn procedure She further ruled at pp 8-9 that "[e]ven If It was theIr IntentIOn to exclude the grIevance procedure from the Memorandum of Agreement, theIr IntentIOns cannot supersede the provIsIOns of the Act." AccordIngly In thIS case I conclude that ArtIcle 20 2 3 confers a substantIve rIght In employees who elect pay In lIeu to apply for restrIcted competItIOns for a perIod of twenty-four months, and that It IS a rIght assertIble agaInst the Employer I also conclude that neIther ArtIcle 20.2 3 nor ArtIcle 22 precludes the arbItratIOn of "dIfferences" over that rIght, but that even If they dId, they could not be enforced In lIght of SectIOn 7(3) of CECBA 2. Standard of Review For the reasons set forth below I conclude that the standard of reVIew should be the "bad faith" standard applIed to unclassIfied employees HistorIcally unclassIfied employees had no rIghts under then ArtIcle 4 PostIng and FIllIng of VacanCIes or New PosItIOns [now ArtIcle 6] Then, In the 1992-1993 collectIve agreement, unclassIfied employees were gIven lImIted rIghts under ArtIcle 4 1 and 4 4 specIfically the rIght to have theIr applIcatIOns acknowledged and tIme off wIth no loss 17 In pay for an IntervIew Vice Chair DIssanyake In OPSEU (McIntosh) supra at p 20 determIned that these provIsIOns "explIcItly recogmze that unclassIfied employees wIll have a rIght to partIcIpate Injob competItIOns under artIcle 4 " In my VIew the rIght of unclassIfied employees to partIcIpate In job competItIOns for unclassIfied employees and the rIght to apply to restrIcted competItIOns In ArtIcle 20 2 3 are substantIally sImIlar The "rIght" contaIned In ArtIcle 20.2 3 IS not lImIted, as the Employer contends, to the lIteral abIlIty to apply To so narrowly construe thIS provIsIOn would render the rIght to apply whIch IS a substantIve rIght, largely Illusory When the purpose of the provIsIOn IS consIdered - to provIde employees who are surplus sed and elect pay In lIeu the opportumty to apply for restrIcted competItIOns and possIbly return to the publIc servIce - then It must be determIned that the rIght Includes the rIght to partIcIpate In such competItIOns As wIth the unclassIfied employees, the rIght to apply to restrIcted competItIOns cannot be rendered meamngless by bad faith conduct by the employer As Vice-Chair DIssanayake concluded In McIntosh at pp 20-21 It IS not reasonable to conclude that the partIes would go to the trouble of amendIng the collectIve agreement to facIlItate, and Indeed encourage (by provIdIng for paid tIme off In ArtIcle 44), partIcIpatIOn by unclassIfied employees In job competItIOns and at the same tIme permIt the employer to render those provIsIOns meamngless by actIng In bad faith, The bad faith conduct of the employer would unduly lImIt, and Indeed negate, the rIghts of unclassIfied employees under artIcles 4 1 and 4 4 Those rIghts would be rendered meamngless HavIng facIlItated and encouraged partIcIpatIOn In job competItIOns, It must reasonably be Inferred that the partIes would have envIsaged at the very least that those unclassIfied employees who do partIcIpate wIll have theIr applIcatIOns consIdered by the employer In good faith, 18 LIkewIse here, I conclude that the partIes would not have Included such a rIght In the collectIve agreement and at the same tIme permIt the employer to render that rIght meamngless by actIng In bad faith, At the very least, as concluded In McIntosh those employees who elect pay In lIeu and apply to a restrIcted competItIOn dUrIng the twenty- four month perIod are entItled to have theIr applIcatIOns consIdered by the employer In good faith, Although I am sympathetIc to the sItuatIOn of those surplus employees who desIre to return to the publIc servIce, I do not belIeve theIr rIghts under ArtIcle 20.2 3 can be equated wIth the rIghts of classIfied staff under ArtIcle 6 Instead, theIr rIghts are akIn to those of unclassIfied employees and the same standard of reVIew should apply AccordIngly I conclude and declare as follows 1 ArtIcle 20 2 3 creates a substantIve rIght In employees who elect pay In lIeu to apply for restrIcted competItIOns for a perIod of twenty-four months 2 As a substantIve rIght, any "dIfferences between the partIes arIsIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn" of the Agreement are arbItrable under ArtIcle 22 and SectIOn 7(3) of CECBA 3 The arbItral standard of reVIew IS the "bad faith" standard applIed to unclassIfied employees Dated at Toronto thIS 8th day of May 2001 H'1/0rmtfJ( RandI Hammer Abramsky Vice-Chair