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HomeMy WebLinkAbout1999-1615.Union.00-01-31 Decision Revised o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 1615/99 OPSEU # OOUO 1 7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown m RIght of Ontano (Mimsm of Health) Employer BEFORE RIchard Brown Vice ChaIr FOR THE D Wnght GRIEVOR Counsel Ryder, Wnght, BlaIr & Doyle Bamsters & SolIcItors FOR THE DaVId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING Januan 24 2000 ThIS gnevance IS brought by the umon on behalf of paramedIcs formerly employed by an ambulance servIce operated by the MImstl)' of Health m the Niagara regIOn. The umon claims they are entItled to enhanced severance pay and pay m lIeu of notIce under AppendIx 18 of the 1999-2001 collectIve agreement. By vIrtue of amendments to the Ambulance Act, responsibilIty for the provIsIOn of ambulance servIces m the area recently passed from the MImstry of Health to the RegIOnal MunICIpalIty of Niagara. The legIslatIOn permIts the regIOnal government eIther to operate the servIce or to contract WIth a servIce provIder The regIOn elected to do the latter, mVIted bIds and awarded a five- year contract to Hotel DIeu HOSpItal m St. Cathennes The mmIstl)' then negotiated wIth the hOSpItal a memorandum of agreement relatmg to human resource matters, dated December 6, 1999 Tms agreement reqUIres the hOSpItal to hIre all paramedIcs prevIOusly employed by the provmce The rate of pay specIfied m the agreement IS 100% of former earnmgs for paramedIc 1 and paramedIc 2 and at least 85% for group leaders In fact, all paramedIcs prevIOusly employed by the mmIstry were hIred by the hospItal, and others were hIred "off the street" ParamedIcs workmg at the hOSpItal receIve "VIrtually 100%" of the compensatIOn paid by the mImstry As to servIce and semonty, paragraph 5 of the memorandum of agreement states CredIt will be gIVen for full servIce and semonty, subject to any lImItatIOns mcorporated m the receIVmg employer's collectIVe agreement. As paramedIcs at Hotel DIeu fall wItmn the servIce and clencal bargammg unIt, the relevant agreement IS the servIce and clencal agreement between the hospItal and CanadIan Umon of PublIc Employees It was amended to 2 recogmze servIce and semonty acqUIred m the Ontano publIc servIce (OPS) WIth only one exceptIOn. ParamedIcs cannot utilIze such semonty to bump mto a job outsIde the paramedIc group m the event of a layoff No wItnesses were called to gIve testImony at the hearmg. A copy of the memorandum of agreement was entered m eVIdence and counsel helpfully provIded an uncontested summary of other relevant facts and the applIcable portIOns of the Ambulance Act I The umon's first argument IS that thIS transfer falls under Schedule D of AppendIx 18 Employees affected by such a transfer are entItled to the surplus payments claimed m tills gnevance, because they are deemed by sectIOn 7 1 to have been surpl ussed In respect to all other dISposItIOns or transfers ofbargammg umtjobs or functIOns mvolvmg transfers not mcluded m Schedule A, B and C, occurrmg dunng the term of thIS Agreement, affected employees will be surplussed as a result of the transfer or dISposItIOn subject to the terms of the collectIVe agreement. The date of the Issuance of the surplus notIce will be determmed by the Employer In the case of employees dIsplaced by a Schedule D transfer, the provmce has no oblIgatIOn to make reasonable efforts to obtamjobs wIth the new servIce provIder Accordmg to the employer, thIS transfer belongs on Schedule B Under that schedule, the provmce must make reasonable efforts to obtam jobs wIth the new employer An employee who declmes a job offer IS entItled to the payments claimed m thIS gnevance only If the offer does not meet the standard found m sectIOn 6 6 The applIcatIOn of that standard to the facts at hand IS consIdered m the last two parts of thIS decIsIOn. 3 Umon counsel contends Schedule B does not apply m the mstant case because sectIOn 6 1 1 contemplates negotiatIOns wIth "the receIVmg employer" m relatIOn to a schedule B transfer, and because there IS no "receIVmg employer" wIthm the meamng of sectIOn 1 0 ReceIVmg Employer - Any publIc or pnvate sector Employer who has been desIgnated m legIslatIOn or who IS selected m another manner by the Crown to delIver servIces WhIch were formerly delIvered by CIvil Servants Counsel argues Hotel DIeu HOSpItal does not meet thIS defimtIOn because It was selected by the regIOn rather than bemg desIgnated by legIslatIOn or selected by the Crown. Turnmg to Schedule D, umon counsel contends a transfer may come under thIS schedule because It belongs to eIther of two categones the first compnsed of transfers placed on the schedule at the optIOn of the provmce where less than eleven full-tIme Jobs are affected, and the second compnsed of transfers not mcluded on any other schedule As to the eXIstence of the second category, counsel relIes upon the opemng words of sectIOn 7 1 WhICh bear repetItIOn. In respect to all other dISposItIOns or transfers ofbargammg umtJobs or functIOns mvolvmg transfers not mcluded m Schedule A, Band C Umon counsel concedes thIS transfer does not belong to the first category because It affects far more than eleven people and the mmIstry has not elected to place It on Schedule D Counsel contends the transfer belongs to the second category of Schedule D transfers, as not bemg governed by any other schedule The umon's argument that the transfer does not fall under Schedule B already has been noted. It IS common ground that neIther Schedule A nor Schedule C apply 4 Counsel for the employer submIts the only transfers governed by Schedule D are those WhICh affect less than eleven employees and WhICh have been placed on thIS schedule by the provmce In the alternatIve, employer counsel contends thIS transfer does not belong on Schedule D because It IS "mcluded" on Schedule B wIthm the meamng of the opemng words of sectIOn 7 1 Here counsel relIes upon the lIst found m AppendIx 18 allocatmg certam types of transfer to specIfic schedules "MOH Land Ambulance" appears under Schedule B on thIS lIst. Employer counsel asserts the partIes negotiated thIS lIst fully aware land ambulance servIces mIght be transferred to eIther a munIcIpalIty or a contractor selected by a mumcIpalIty Dmon counsel dId not dIspute thIS assertIOn. Counsel for the employer also contends Hotel DIeu HOSpItal IS a receIVmg employer wIthm the meamng of sectIOn 10m the sense that It was chosen by the mumcIpalIty pursuant to a power conferred by legIslatIOn. In response to the employer's argument about the lIst allocatmg types of transfers to schedules, umon counsel urges me to read "MOH Land Ambulance" to encompass only those transfers of ambulance servIces where the responsible mumcIpalIty decIdes to be the servIce provIder rather than to contract wIth another party as occurred m thIS case Employer counsel notes the umon's argument about Schedule D IS a double-edged sword. In the present case, It cuts m favour of the affected employees by allowmg them to collect surplus benefits While the argument means the mmIstry would not be oblIged to help them obtamjobs wIth Hotel DIeu HOSpItal, they had lIttle need of such assIstance, gIven the state of the job market for paramedIcs However, the same argument applIed m future cases would mean other employees, unable to secure jobs on theIr own, 5 would be entItled to no assIstance from the provmce on thIS front. They would be left wIth surplus benefits but wIthout employment. Counsel for the umon conceded hIS argument would help some employees and hurt others II In my VIew, tms transfer belongs on Schedule B by VIrtue of the lIst m AppendIx 18 placmg land ambulance transfers on that schedule The lIst draws no dIstmctIOns between a transfer to a munIcIpalIty, WhIch Itself becomes a servIce provIder, and a transfer, Via a mumcIpalIty, to a contractor such as Hotel DIeu HOSpItal The lIst was constructed by negotiators who knew, or reasonably should have known, eIther type of transfer mIght occur The wordmg of the lIst and the context m WhICh It was negotiated lead me to conclude the partIes to the collectIVe agreement have determmed any transfer of land ambulance servIces falls under Schedule B I conclude Hotel DIeu HOSpItal IS a "receIVmg employer" wItmn the meamng of sectIOn 1 0, because the hospItal was chosen through a process set out m the Ambulance Act In other words, I read the words "desIgnated by legIslatIOn" m sectIOn 1 0 to mclude a desIgnatIOn made pursuant to a process determmed by legIslatIOn. I reject the narrower readmg of "receIVmg employer" advanced by the umon. ThIS mterpretatIOn would exclude not only a contractor chosen by a munIcIpalIty but also any mumcIpalIty WhICh Itself provIdes ambulance servIce When a mumcIpalIty delIvers servIces, It does so because It decIded not to utilIze a contractor, not because the mumcIpalIty IS 'desIgnated m legIslatIon or IS selected m any other manner by the Crown to delzver servlces" (emphasIs added) wIthm the meamng of sectIOn 1 0 Accordmgly, even a mumcIpal servIce provIder would not be a "receIvmg employer" on the 6 umon's mterpretatIOn. Tms readmg would remove all ambulance transfers from Schedule B, a result clearly mconsIstent wIth the lIst placmg such transfers on that schedule III Argumg m the alternatIve, the umon claims paramedIcs affected by the transfer are entItled to surplus benefits even If It belongs on Schedule B Accordmg to tms schedule, such benefits are payable If an employee declInes an offer of a job on terms and condItIOns wmch fall below the standard specIfied. Counsel for the employer does not contend the employees concerned are not entItled to surplus benefits because they actually accepted the jobs offered by Hotel DIeu. The gnevance was filed before the job offers were taken up, but the heanng was adjourned on consent and on the understandmg employees would not be prejudIced by the delay To aVOId any prejUdICe, the employer does not rely upon the subsequent acceptance of offers The standard WhICh determmes whether a job may be refused wIthout losmg a claim to surplus benefits IS found m the first sentence of sectIOn 6 6 Where the salaIY of the job offered by the receIVmg employer IS less than eIghty-five percent (85%) of the employee's current weekly salary, or if the employee's servlee or senlOnty are not earned over to the reeelvzng employer, the employee may declme the offer In such a case, the employee may exerCIse the nghts prescribed by ArtIcle 20 (Employment StabilIty) and/or paragraphs 2 to 5 of AppendIx 9 The employee must elect whether or not to accept employment wIth the receIVmg employer wItmn three (3) days ofreceIVmg an offer In default of electIOn, the employee shall be deemed to have accepted the offer (emphasIs added) The Issue between the partIes relates to semonty The partIes agree that sectIOn 6 6 speaks to semonty bemg carned over for the partIcular purpose 7 of layoff Indeed, sectIOns 6 1 1 and 6 5 elaborate on the meamng of semonty and specIfically mentIOn "layoff' There IS no reason to thmk semonty has a dIfferent meamng m sectIOn 6 6 The employer submIts semonty IS carned over for the purpose of layoff m the sense that OPS semonty can be used to bump wIthm the paramedIc group The umon contends semonty IS not carned over m the sense that a former employee of the mmIstl)' cannot utilIze OPS semonty to bump an employee holdmg a servIce and clencal Job outsIde the paramedIc group at Hotel DIeu. Umon counsel notes a paramedIc receIvmg a surplus notIce m the OPS could use semonty to bump mto not only another paramedIc posItIOn but also a non-paramedIc posItIOn prevIOusly held by the person facmg layoff See artIcles 20 4 lIto 20 4 1 5 At Hotel DIeu, OPS semonty cannot be used to bump mto any non-paramedIc Job m the servIce and clencal umt. Based upon these observatIOns, counsel for the umon concludes the employees concerned have less protectIOn agamst layoff at Hotel DIeu than they had m the OPS IV The unIOn's companson of the semonty system m the OPS wIth the one at Hotel DIeu rests upon the tacIt premIse that sectIOn 6 6 allows an employee to reject a Job offer, wIthout foregomg surplus benefits, whenever a recelVmg employer's semonty system provIdes less of a safeguard agamst layoff than the OPS system, even though semonty acqUIred by an employee m the OPS could be used to obtam whatever protectIOn generally eXIsts wIthm the new employer's semonty system. Is thIS premIse correct? Semonty systems dIffer m the degree of protectIOn afforded agamst layoff m a number of ways Under some systems, an employee may mvoke 8 semonty to bump mto any posItIOn m the bargammg umt wInch the mdlvldual IS qualIfied to hold. Other systems allow bumpmg mto only a subset of jobs m the umt, wIth one system excludmg more jobs than the next. Some systems Impose geograpIncal lImIts on bumpmg, WIth the seventy of the restnctIOn varymg from one system to the next, whereas others Impose no such lImIt at all. Some permIt unlmllted cham bumpmg, while others allow only a lmllted number of bumps Other vanatIOns also eXISt. How does AppendIx 18 treat dlffenng semonty systems? In my VIew, the authors of AppendIx 18 almost certainly dId not mtend entItlement to surplus benefits to turn upon a detailed companson of the OPS semonty system wIth the system of the recelvmg employer The contrary conclusIOn would gIVe nse to extensIve lItIgatIOn posmg a number of questIOns for wInch AppendIx 18 offers no answer How IS the degree of protectIOn afforded by any aspect of a semonty system to be measured? For example, should the yardstIck be the number of classIficatIOns mto WhIch bumpmg IS permItted or the total number of employees m those classIficatIOns? If one aspect of a new employer's semonty system provIdes less job secunty than the system m OPS, but another aspect offers more, how are these two components to be weIghted relatIve to one another m arnvmg at an overall companson of protectIOn under these two systems The absence of any reference to these very complex Issues m AppendIx 18 strongly suggests negotiators vIewed them as matters that should be Ignored. ThIS analysIs leads me to reject the umon's contentIOn that semonty has not been carrIed over wlthm the meamng of artIcle 6 6 because former employees of the mmlstry have less protectIOn agamst layoff than they enjoyed m the OPS The semonty system at Hotel Dleu cannot be called mto questIOn by comparmg It to the system m the OPS 9 One final feature of thIS case warrants comment. The bamer between paramedIcal jobs and other jobs at Hotel Dleu Impedes traffic m only one dIrectIOn. ParamedIcs cannot use theIr full semonty, mcludmg semonty accrued m the OPS, to claim other servIce and clencal posItIOns In contrast, employees m non-paramedIcal jobs are pernutted to use theIr full semonty to claim work as a paramedIc ThIS dlspanty wlthm the Hotel Dleu semonty system emerged m opemng statements m response to a questIOn I posed. At that tIme, employer and umon counsel agreed the pomt was of relatIvely lIttle practIcal sIgmficance, because lugWy skilled paramedIcs are unlikely to want any other servIce and clencal job, and because other servIce and clencal workers are not likely to be qualIfied for paramedIcal work. The matter was not addressed m argument. Accordmgly, I refram from determmmg whether such a dIsparIty has any beanng on the applIcatIOn of artIcle 6 6 The grIevance IS dIsmIssed. Dated at Toronto, OntarIO thIS 31 st day of January, 2000 RIchard Brown, V Ice-Chair 10