HomeMy WebLinkAbout1999-1466.Union Grievance.01-11-08 Decision
~M~ om~o EA1PLOYES DE LA COURONNE
_QJ_L ii~~~i~T DE L 'ONTARIO
COMMISSION DE
REGLEMENT
"IIIl__1I'" BOARD DES GRIEFS
Ontario
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB# 1466/99
UnIon # 99U085
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Befo re
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU
(UnIon Gnevance)
Gnevor
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The Crown III RIght of Ontano
(Management Board Secretariat)
Employer
BEFORE RIchard M. Brown Vice-Chair
FOR THE GRIEVOR RIchard Blair
Counsel
Ryder Wnght Blair & Doyle
BarrIsters & SohcItors
FOR THE EMPLOYER Len Marvy
SenIor Counsel, Legal SerVIces Branch
Management Board Secretariat
HEARING November 5, 2001
ThIS gnevance anses from the llnpendIng transfer of the Ontano
Realty CorporatIOn (ORC) from the Crown to the broader publIc sector The
transfer IS expected to happen on November 30, 2001 When It occurs, ORC
employees wIll cease to be publIc servants wIll no longer be represented by
the umon
Most persons In the employ of ORC before the transfer wIll receIve
offers of contInued employment by vIrtue of a recent, undated memorandum
of agreement between ORC and the Crown ThIS memorandum was
negotIated on behalf of the Crown by Management Board Secretanat (MBS)
In dIscharge of ItS oblIgatIOns under AppendIx 18 of the current collectIve
agreement Employees who do not receIve a Job offer wIll have surplus
nghts under the collectIve agreement
The gnevance alleges a vIOlatIOn of AppendIx 18, but the partIes have
now resolved all of the Issues concernIng the applIcatIOn of the collectIve
agreement to the facts at hand. The only outstandIng Issue concerns an
earlIer memorandum of understandIng, dated November 25, 1994, to whIch
OPSEU, ORC and the Crown are sIgnatones AccordIng to the umon, the
llnpendIng transfer wIll vIOlate aJob offer guarantee contaIned In the
memorandum The employer contends tlllS guarantee has no applIcatIOn to
the facts at hand
I
The 1994 memorandum was negotIated In the context of the Realty Group of
MBS beIng transfonned Into ORC Some employees of the Realty Group
transferred to ORC wIllIe others were laid off ThIS transfonnatIOn had no
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affect on the status of employees as a pubhc servants or on OPSEU's status
as theIr bargammg agent The relevant portIOns of the memorandum state
16 A pubhc servant whose posItIOn IS IdentIfied as surplus to the
reqUIrements of the Realty Group of the Mmlstry pnor to
assumptIOn of the operatIOns of the Realty Group by the
CorporatIOn IS entItled from the Mmlstry to 6 months notIce of
layoff, m accordance wIth the prOVISIOns of ArtIcle 24 or any
successor prOVISIOn
17 The PartIes agree the prOVISIOns of ArtIcle 24 17 do not apply to
the abohtIOn of the posItIOns of the pubhc servants named m
AppendIx 1
18 A pubhc servant who IS declared surplus, m accordance wIth
paragraph 16, may, wltllln 2 weeks of the surplus declaratIOn, opt
m wntmg for a No Employment Loss Guarantee wherem the
pubhc servant wIll be entItled, from the Mmlstry, to
(a) 6 months notIce of layoff and a guarantee of one Job offer
to a posItIOn for whIch the pubhc servant IS quahfied, and
(b) If the pubhc servant IS not offered a Job wltllln the month
notIce penod set out m subparagraph (a), addItIonal notIce
penods of SIX months wIll be provIded by the Mmlstry,
untIl an offer of employment for whIch the pubhc servant IS
quahfied, consIstent WIth the salary parameters as outhned
m artIcle 24 5(b) of the CollectIve Agreement, IS made The
Mmlstry wIll make ItS best effort to place the pubhc servant
wltllln a desIrable geographIc locatIOn
(c) The Mmlstry's obhgatIOn to offer the No Employment Loss
guarantee to a pubhc servant, on the attached AppendIx 1,
ends when the Mmlstry offers to the pubhc servant an
assIgnment to a posItIOn that IS not a temporary assIgnment
19 FaIhng wntten notIficatIOn pursuant to Paragraph 18, the
prOVISIOns of ArtIcle 24 2 1 or any successor prOVISIOn wIll
apply
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Paragraph 18 refers to artIcle 24 17 of the 1992-93 collectIve agreement
deahng wIth employees whose Jobs were elllnmated by "contractmg out,
dIvestment or comparable transfer" By vIrtue of tlus artIcle, such employees
were guaranteed an offer of another Job m the pubhc servIce Paragraph 18
of the 1994 memorandum provIded the same sort of protectIOn to employees,
but dIffered from artIcle 24 17 as to the details of the Job offer guaranteed.
The Job offer guarantee found m artIcle 24 17 was not carned over to
later collectIve agreements Both subsequent agreements have taken a
dIfferent approach to employees rendered surplus by the transfer of work
from the Crown to another employer In AppendIx 9 of the 1993-96
agreement, the Crown undertook to make "reasonable efforts" to ensure
surplus employees receIved an offer of employment from the employer to
whom work was transferred. AppendIx 18 of the current agreement added a
substantIal amount of flesh to the bare bones of AppendIx 9 m relatIOn to Job
offers from the receIvmg employer
II
The threshold questIOn IS whether the Job offer guarantee contamed m the
1994 memorandum governs the llnpendmg transfer of ORC from the Crown
to the broader pubhc sector A hteral readmg of the memorandum provIdes
ample support for the conclusIOn that the memorandum does not apply m
these CIrcumstances Accordmg to the wordmg of paragraph 18, the Job offer
guarantee extends to an employee declared surplus "m accordance wIth
paragraph 16 "Paragraph 16 speaks of an employee "whose posItIOn IS
IdentIfied as surplus to the reqUIrements of the Realty Group" In other
words, employees surplussed by the Realty Group m 1994 were entItled to
receIve aJob offer from ORC There IS notlung m the 1994 memorandum to
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mdIcate the Job offer guarantee contamed therem was mtended to extend to
employees who are now about to be laid off by ORC, some seven years and
two collectIve agreements later
Havmg decIded the threshold questIOn m the employer's favour, I
need not consIder the remedial consequences of a breach of the 1994
memorandum The gnevance IS dIsmIssed
Dated at Toronto, tlus gthday of November, 2001
RIchard Brown, VIce-Chair
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