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HomeMy WebLinkAbout2000-0452.Gilliam.00-12-15 Decision o NTARl 0 EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L "ONTARIO .. GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #0452/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN AMAPCEO (GilhaIll) Gnevor - and - The Crown ill RIght of Ontano (Mimsm of TransportatIon) Employer BEFORE RandI HaIllmer Abramsk", Vice Chair FOR THE Steve Barrett, Counsel GRIEVOR Sack Goldblatt Mitchell Bamsters and Sohcltors FOR THE Len M~ Semor Couns el EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING November I, 2000 AWARD The mstant gnevance raises the questIOn of whether the gnevor, Kmgsley GIllIam, IS entItled to assert nghts under the Public Sen1ice Act to be conSIdered for a duect assIgnment Without competItIOn under s 14(4) of RegulatIOn 977 Fundamental to that Issue IS whether, under the speCIfic and hmIted facts of thIS case, the gnevor s nghts under the Public Sen1ice Act remam enforceable') Facts The partIes stIpulated the facts, as follows 1 Kmgsley GIlham was hIred as an 18 APL pnor to March 23, 1995 2. On March 23, 1995, the Management Board of Cabmet and AMAPCEO SIgned a Memorandum of Understandmg recogmzmg AMAPCEO as the bargammg agent for the proposed seventh unIt. 3 On May 23, 1995, Mr GIllIam was notIfied that untIl a collectIve agreement could be reached between AMAPCEO and the government, hIS pay, benefits and workmg condItIOns would contmue to be governed by management pohcIes and the Public Sen1ice Act (PSA) The letter also stated that Mr GIlham s posItIOn had been confirmed as ehgible for bargammg and belongmg to the seventh unIt. 4 On December 6, 1995, Mr GIlham was surplussed as an l8APL m accordance With the PSA and aSSIgned as a 16 APL Tramer m the Human Resources Branch on the same date 5 On March 6, 1996, a Memorandum of Agreement (Intenm Agreement) was SIgned recogmzmg AMAPCEO as the bargammg agent of all Crown employees as defined m seCTIon 1 of CECBA, 1993 who are Pubhc Servants, but who were not otherWIse mcluded m the SIX bargammg unItS described by the LIeutenant Governor m COunCIl. 6 On January 14, 1997 Mr GIlham was surplus sed at MOE as per ArtIcle 6 1 of AMAPCEO Intenm Agreement. 2 7 On January 23, 1997 Mr GIlham was assIgned as a l6AGA at the MCSS under ArtIcle 6 2 of the AMAPCEO Intenm Agreement. 8 On Apnl 7, 1997 Mr GIlham was surplussed as a l6AGA at the MCSS as per ArtIcle 6 1 of the AMAPCEO Intenm Agreement. 9 On August 5, 1997 Mr Gilham was surplussed as a l6AGA at the MTO m accordance With ArtIcle 6 1 of AMAPCEO Intenm Agreement. 10 On August 5, 1997, Mr GIlham was assIgned as a l5AGA at the MTO m accordance With ArtIcle 8 of the AMAPCEO Intenm Agreement. liOn May 27, 1998, the AMAPCEO CollectIve Agreement was ratIfied. 12. On July 7, 1999, Mr GIlham was surplus sed as a 15 AGA at MTO m accordance With ArtIcle 27 6 1 of the AMAPCEO CollectIve Agreement. 13 On July 14, 1999, Mr GIllIam was assIgned as a 16 PEC at MTO m accordance With ArtIcles 27 6 2 and 2784 of the AMAPCEO CollectIve Agreement. 14 On September 22, 1999, Mr GIllIam requests that he be assIgned Without competItIOn pursuant to ArtIcle 188 l(h) of the AMAPCEO CollectIve Agreement to the pOSItIOn of 18 APL as a Pohcy AdVIsor 15 On September 30, 1999, the request IS demed as Mr GIlham was not dIrectly assIgned under ArtIcle 27 of the AMAPCEO CollectIve Agreement or ItS predecessor ArtIcle 6 of the AMAPCEO Intenm Agreement, therefore the ArtIcles are not apphcable to the Clfcumstances 16 On February 29, 2000, AMAPCEO and the Mimstry concluded an Agreement estabhshmg the process and rules based on the agreed mterpretatIOn of ArtIcle 188 l(h) Under the February 29, 2000 agreement, the partIes agreed that ArtIcle 188 l(h) would apply when an employee IS surplussed under eIther ArtIcle 27 or the Interim Agreement The subject of employees who were surplussed pnor to the Intenm Agreement was not dIscussed. 3 On October 8, 1999, Mr GIlham gneved the demal of hIs request for a dIrect assIgnment as a vIOlatIOn of "ArtIcles 18 8 lh and any other prOVISIons of the CollectIve Agreement that are relevant." ArtIcle 188 l(h) prOVIdes as follows Exceptions from the Requirements to the Posting and Filling of Positions 18 8 1 Vacancies may be filled Without competItIOn upon cleanng surplus under the follOWing Clfcumstances (h) In addItIOn, any employee who IS dIrectly assIgned under ArtIcle 27 and who then apphes for a vacant pOSItIOn or whose dutIes are changed as a result of a reorganIzatIOn or reaSSIgnment of dutIes and the pOSItIOn IS reclassIfied to a lower claSSIficatIOn IS entItled to be appomted to the first vacant pOSItIOn whIch. * IS m hIs/her mmIstry as defined m ArtIcle 17 12, and * IS at a salary maXImum hIgher than that currently held, but not hIgher than ongmally held * he/she IS quahfied to perform * has cleared the surplus reqUIrements of ArtIcle 27 and the prOVISIons of ArtIcle 18 1 to 18 5 shall not apply unless otherWIse speCIfied. Although the gnevor S September 30, 1999 request for a dIrect aSSIgnment, as well as hIS gnevance, was based on ArtIcle 188 l(h), the Umon, at the heanng, dId not assert that the gnevor had entItlements under that prOVISIon. It agrees, and the facts clearly estabhsh, that the gnevor was ongmally surplussed on December 6, 1995 under the Public SenJice Act It IS also clear that ArtIcle 18 8 l(h) apphes only when an employee IS surplussed under ArtIcle 27, or based on the February 29, 2000 agreerrent of the partIes, when an employee was surplussed under the Intenm Agreement of March 23, 1996 It has no apphcabIlIty to the gnevor who was surplussed and assIgned to a lower 4 rated posItIOn under S 14(4) of Reg. 977 of the Public SenJice Act, four lIDnths before the Intenm Agreement took effect. The Employer submIts that the gnevance must be dIsmIssed on thIs basIs It submIts that the clear language of ArtIcle 188 l(h) hmIts ItS applIcatIOn to "any employee who IS dIrectly aSSIgned under ArtIcle 27" and thus does not apply to the gnevor Nor, It contends, was the gnevor dIrectly aSSIgned under the Intenm Agreement so as to tngger ArtIcle 188 l(h) under the February 29, 2000 agreement. It submIts that the partIes could have, but dId not, mclude language whIch mcluded dIrect aSSIgnments pnor to the Intenm Agreement, under the Public SenJice Act, even though both SIdes were well aware that such dIrect aSSIgnments had been made It acknowledges, however, that thIS Issue was not addressed m the February 29, 2000 agreement. In the Employer S VIew, for thIS Board to mterpret ArtIcle 188 l(h) to mclude employees dIrectly aSSIgned under the Public SenJice Act would constItute an Improper amendment of the collectIve agreement. Instead of ArtIcle 188 l(h), the Umon argues that the gnevor s nghts are based on s 14(4) of Reg. 977 of the Public SenJice Act whIch remam enforceable It contends that hIS nghts under s. 14 vested at the tIme he was surplussed and accepted a lower rated pOSItIon. He accepted thIS change, It contends, With the reasonable expectatIOn that s 14(4) would apply to enable hIm to return to hIS hIgher rated claSSIficatIOn. SectIOn l4( 4) of Reg. 977 states as follows 5 (4) Where a cIvIl servant accepts a transfer under subsectIOn (2) to a pOSItIOn WIth a lower maXImum salary and m any mmIstry to whIch he or she thereafter apphes there IS a vacant pOSItIOn, (a) for whIch he or she IS qualIfied, (b) for whIch he or she IS acceptable to the deputy mmIster of the mmIstry and (c) With a maXImum salary, (i) greater than that of the pOSItIOn to whIch the CIvIl servant accepted a transfer under subsectIOn (2), and (11) not greater than that to whIch he or she would have been entItled If It had not been proposed to release hIm or her and he or she had remamed m the pOSItIOn from whIch he or she accepted a transfer under subsectIOn (2), the deputy mmIster of the mmIstry shall transfer the CIvIl servant to the vacant pOSItIOn. Histoncally, the employees represented by AMAPCEO were exempt from collectIve bargammg and theIr terms and condItIOns of employment were governed by the Public Sen1ice Act and regulatIOns thereunder, as well as government pohcIes In 1993, the Crown Employees Collective Bargaining Act (CECBA) was amended to mclude employees such as Mr GIlham. In January 1995, AMAPCEO sought voluntary recogmtIOn from the govemment and filed an apphcatIOn for certIficatIOn With the Ontano Labour RelatIOns Board. That apphcatIOn tnggered s. 81 of the Labour Relations Act, statutonly freezmg all terms and condItIOns of employment. On March 6, 1995, the government and AMAPCEO SIgned a voluntary recogmtIOn agreement. Part VI of that agreement states as follows 17 The partIes agree that untIl a first collectIve agreement IS entered mto, the proVISIons of sectIOn 81 of the Labour RelatIOns Act apply to all pOSItIOns and persons hsted. For greater certamty, the partIes agree that the Government may reorgamze and restructure proVIded that employees affected receIve the benefits of the current transfer/surplus/redeployment prOVISIons and practIces as they apply to 6 employees m MCP classIficatIOns, or any supenor benefit(s) that may have been obtamed under the Social Contract, or agreements flOWing from It. Paragraph 20 of the Part VI prOVIded for a dIspute resolutIOn process, statmg that "[a]ny dIspute concernmg thIS Part shall be referred to a mediator/arbItrator agreed to m the order set out m the letter of understandmg dated March 23, 1995, whIch letter forms part of thIS Agreement, for bmdmg determmatIOn follOWing a heanng, whIch deCISIon shall be final and bmdmg on the parties. " On March 6, 1996, the partIes entered mto the Intenm Agreement whIch dealt almost exclUSIvely With Job secunty prOVISIons - layoff, notIce, pay-m-heu, dIrect aSSIgnment, bumpmg, severance, etc ArtIcle 2 of the Intenm Agreement noted, among other matters, that "Issues related to SectIOn 14(4) of the Pubhc ServIce Act and ItS apphcabIhty With respect to bumpmg, dIrect aSSIgnment and recall" would be subject to negotiatIOn m subsequent first contract negotiatIOns between the partIes. On May 5, 1998, the partIes SIgned theIr first collectIve agreement, With the exceptIOn of a few matters that were referred to mterest arbItratIOn. The collectIve agreement contams a "Letter of Understandmg re Part VI of the Voluntary RecogmtIOn Agreement" It states as follows May 5, 1998 The partIes agree that, despIte language to the contrary m the Voluntary RecogmtIOn Agreement, any dIspute m respect of an alleged VIOlatIOn of Part VI of the Voluntary RecogmtIOn Agreement Will be enforced under ArtIcle 15 of the CollectIve Agreement. ThIS letter of understandmg forms part of the collectIve agreement. 7 ArtIcle 15 of the collectIve agreement IS the "DIspute ResolutIOn Process" The Umon contends that under thIs Letter of Understandmg, the nghts of employees such as Mr GIlham under s. 14 (4) of Reg. 977 of the Public SenJice Act, as contmued by the statutory freeze, were mcorporated mto the collectIve agreement and made enforceable through the gnevance arbItratIOn process The Umon submIts that the partIes, both m the Intenm Agreement and ArtIcle 18, carned forward the pnncIples and baSIC structure of s. 14(4) of Reg. 977 m a seamless manner, albeIt With some mmor vanatIOns. It states that employees surplus sed after the Intenm Agreement or under the current collectIve agreement are bound by ArtIcle 188 l(h), whIle employees hke Mr GIlham mamtam then nghts under the Public SenJice Act. It argues that employees hke Mr GIlham should not lose theIr statutory nghts because the partIes mcluded the same protectIOns m then collectIve agreement. Instead, It asserts that such a loss of vested nghts may only be done through express contractual language and that no such language eXIsts m the agreement. It argues that nothmg m the collectIve agreement stnps employees of nghts accrued dunng the statutory freeze On the contrary, It argues that the May 5, 1988 letter of understandmg demonstrates that the partIes dId not extmgUIsh employee nghts whIch accrued pnor to the collectIve agreement, but prOVIded that they would contmue to be enforced through the gnevance arbItratIOn process. In support of ItS contentIOns, the Umon CItes to Re Canadian Canners Ltd. And International Association of Machinists (1973), 4 L.AC (2d) 59 (SchIff) Re Bell 8 Canada and Communications Workers of Canada (1984), 15 L.A.C (3d) 27 (M. PIcher) Re Bearskin Lake Air SenJice Ltd. and United Food & Commercial Workers International Union (1997), 69 L.A.C (4h) 421 (Bendel), AMAPCEO (Coltling) and Ministl} of Transportation, GSB No 2064/99 (DIssanayake, Vice-Chair), Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants Union No 10 et al. [1983] 42 O.R. (2d) 404 (Ct. App ), Re SEIU Local 204 and Broad1ta} Manor Nursing Home et al [1984] 48 O.R. (2d) 225 (Ct. App) The Employer raised a number of responses to the Umon s contentIOns Erst, It submIts that Part VI of the Voluntary RecogmtIOn Agreement speCIfically states that "[t]he partIes agree that until a first collective agreement is entered into, the prOVISIons of sectIOn 81 of the Labour RelatIOns Act apply " (emphaSIS added) It submIts that by ItS terms, once a collectIve agreement IS m place, that IS the law between the partIes The Employer argues that under the letter of understandmg, a dIspute about the freeze that arose between the tIme of voluntary recogmtIOn and the first collectIve agreement, nghts whIch are vested and dIsputed at that tIme, IS subject to arbItratIOn, but substantIvely, the freeze does not contmue m force after the first collectIve agreement IS SIgned. The letter of understandmg does not, It submIts, substantIvely contmue m force nghts under the Public SenJice Act It submIts that the gnevor cannot rely on s.14(4) m 1999 In 1999, there IS a collectIve agreement and s 14(4) of Reg. 977 no longer applIes The Employer also rehes on s 14(9) of Reg. 977 That prOVISIon states 9 (9) ThIs sectIOn does not apply to persons WIthm a umt of employees estabhshed for collectIve bargammg under the Crown Employees CollectIve Bargammg Act, 1993 0 Reg. 168/96, S 3 ThIs prOVIsIon, It contends, IS absolutely clear on ItS face that the sectIOn does not apply to persons WIthm a unIt of employees establIshed for collectIve bargammg under CECBA. It argues that the partIes were very aware of thIs prOVIsIon when they negotIated the collectIve agreement and dId not provIde for employee S surplussed and assIgned pnor to the Intenm Agreement. In ItS submISSIon, the partIes could have dealt With employees lIke Mr GIlham, but they dId not. It argues that m 1999, when Mr GIllIam seeks to enforce s.14 (4), he IS clearly WIthm the AMAPCEO bargammg unIt. It should be noted that a substantially SImIlar prOVISIon eXIsted m Reg. 977 before CECBA was amended to mclude the AMAPCEO bargammg unIt. PreVIously, s 14 (9) stated as follows (9) ThIS sectIOn does not apply to persons WIthm a unIt of employees estabhshed for collectIve bargammg under any Act. RRO 1980, Reg. 881, s.19 (8,9) It was changed to ItS present language m 1996 The Employer also rehes on s 29(3) of the Public Sen1ice Act. That proVISIon states Any prOVISIon m a collectIve agreement that IS m conflIct With a prOVISIon of a regulatIOn as It affects the employees of a bargammg unIt covered by the collectIve agreement preVails over the proVISIon of the regulatIOn. 10 The Employer contends that s.14( 4) IS m dlfect conflIct With ArtIcle 18 of the collectIve agreement. ArtIcle 18, entItled "RecrUItment - Postmg and FIlhng of POSItIOns", reqUIres, among other thmgs, the postmg of vacanCIes and that they be filled through competItIOns SectIOn 14(4) of Reg. 977, SImIlarly to ArtIcle 188 l(h), removes a vacancy from the competItIOn process and allows It to be filled by dlfect appomtment. In the Employer s VIew, s 14(4) would gIve the gnevor, substantIvely, a nght m conflIct With the nghts of other employees m the bargammg unIt to compete for vacant pOSItIOns In the Employer s submIssIon, the only exceptIOn to the postmg/ competItIOn reqUIrements m ArtIcle 18 IS found m ArtIcle 188 1 whIch the gnevor IS not ehgIble to mvoke In addItIOn, the Employer contends that s 14 (4) creates other conflIcts because of ItS dIfferences With ArtIcle 188 l(h) SpeCIfically, under ArtIcle 188 l(h), the vacant pOSItIOn must have cleared the surplus hst; the same IS not speCIfically reqUIred m s l4( 4) Under ArtIcle 188 l(h), the nght to a dIrect appomtment IS hmIted to a vacant pOSItIOn m the employee s mmIstry, not "any mmIstry" as m s 14(4) These dIfferences, m the Employer s submISSIOn, creates a conflIct between s l4( 4) and the collectIve agreement, and m those clfcumstances, under sectIOn 29(3) of the Public SenJice Act, the collectIve agreement preVails The Umon s response to thIS argument IS that there IS no conflIct between s 14(4) and the collectIve agreement because the two prOVISIons apply to dIstmct tIme penods - they are temporally dIstmct. It submIts that s 14(4) apphes to the penod before the 11 Intenm Agreement whIle the negotiated prOVISIons apply thereafter An employee s nghts, It asserts, depend upon when they were surplus sed. The Umon further argues that the collectIve agreement speCIfically allows for the enforcement of accrued nghts under the statutory freeze penod through the letter of understandmg. Therefore, It contends, that s l4( 4) does not conflIct With the collectIve agreement. Fmally, the Umon submIts that to the extent that there IS a conflIct between s 14(4) and ArtIcle 188 l(h), the Board should read s 14(4) m a manner consIstent With the collectIve agreement. In other words, It should be read so as to reqwre a vacant pOSItIOn to clear surplus and be hmIted to the employee s own mmIstry and thus aVOId any conflICt. In response to the Employer s contentIOns about s.14 (9), the Umon asserts that to the extent that thIS regulatIOn conflIcts With the collectIve agreement, the collectIve agreement preVails under s.29 (3) of the Public Sen1ice Act The collectIve agreement, m ItS VIew, mcorporates, through the letter of understandmg, the nghts vested by VIrtue of the statutory freeze In addItIOn, by law, as well as the Voluntary RecogmtIOn Agreement of the partIes, the employees nghts under the Public Sen1ice Act contmued to apply untIl the Intenm Agreement. Thus, the partIes at the tIme, It submIts, dId not VIew s 14(9), as elImmatmg the apphcabIlIty of s 14 AddItIOnally, from a purpOSIve approach, s 14(9) precludes s 14 from contmumg to apply where there IS a bargammg unIt and a collectIve 12 agreement. The collectIve agreement supersedes the regulatIOn. But untIl then, the regulatIOn contmues to apply and under the partIes collectIve agreement, employees nghts under the freeze may be arbItrated. Although not cIted by eIther party, SectIOns 30 and 31 of Reg. 977, Part V, Gnevance Procedure, provIde, m pertment part, as follows 30 In the Part, "gnevor" means a person who files a gnevance under thIS Part. 31 (1) The folloWing persons are not ehgIble to file a gnevance under thIS Part: 1 A person With a unIt of employees estabhshed for collectIve bargammg under the Crown Employees Collective Bargaining Act, 1993 2. (2) DespIte paragraph 1 of subsectIOn (1), a person who IS a member of a unIt represented by the ASSOCiatIOn of Management, AdmmIstratIve and ProfessIonal Crown Employees (AMAPCEO) for the purposes of collectIve bargammg under the CrOHn Employees Collective Bargaining Act, 1993 may file a gnevance under thIS Part untIl the Crown and AMAPCEO enter mto a collectIve agreement that prOVIdes a dIfferent gnevance process for the person. DECISION Factually, thIS case IS qUIte SImple Legally, however, It IS qUIte complex and raises questIOns mvolvmg a very unusual mIX of statutory and collectIve agreement nghts and regImes For the reasons set forth below, I conclude that the gnevance must be dIsmIssed. 13 At the tIme that the gnevor was surplussed and redeployed m December 1995, the gnevor s nghts were governed by s.14 of Reg. 977 of the Public SenJice Act Yet that was not the only statute at work. At that tIme, CECBA had been amended to mclude employees such as the gnevor AMAPCEO had been recogmzed as bargammg agent. The partIes were operatmg under the statutory freeze reqUIred by s 81 of the Labour Relations Act and as set out m the Voluntary RecogmtIOn Agreement. The partIes were, at that moment, m the process of negotIatmg prOVISIons concemmg Job securIty Consequently, although the gnevor, at the tIme he was declared surplus and offered a lower rated pOSItIOn m December 1995, may have had some expectatIOn that he would be able eventually to reclaim hIS former classIficatIOn through s 14 (4) or some SImIlar negotiated prOVISIOn, that expectatIOn IS sIgmficantly lessened by the surroundmg Clfcumstances. Indeed, the expectatIOn at the tIme was that nghts under the Public SenJice Act would gIve way to nghts under a collectIve agreement. A new collectIve bargammg regIme was to be Implemented for employees hke Mr GIlham. ThIS expectatIOn IS eVIdenced m Part VI of the Voluntary RecogmtIOn Agreement. That agreement was qUIte clear that "[t]he partIes agree that until a first collective agreement is entered into, the proVISIons of sectIOn 81 of the Labour RelatIOns Act apply " (emphasIs added) By ItS terms, It exphcItly hmIts the freeze (and the underlymg statutory terms) to the penod before a first collectIve agreement IS entered mto After the first collectIve agreement IS entered mto, the agreement governs the partIes 14 The same approach IS eVIdent m the Public SenJice Act - the Act governs untIl a collectIve agreement IS entered mto SectIOn 31 of Reg. 977 exempts "[a] person WIthm a unIt of employees estabhshed for collectIve bargammg under the Crown Employees Collective Bargaining Act 1993" from filmg a gnevance, but then specIfically states that "a person who IS a member of a unIt represented by (AMAPCEO) for the purposes of collectIve bargammg under the Crown Employees Collective Bargaining Act, 1993 may file a gnevance under thIS Part until the Crown and AMAPCEO enter into a collective agreement that provides a dtfferent grievance process for the person" (emphasIs added) SectIOn 14(9) of Reg. 977 states that "[t]hIs sectIOn does not apply to persons WIthm a unIt of employees establIshed for collectIve bargammg under the Crown Employees Collective Bargaining Act, 1993 0 Reg. 168/96, s.3 It dIstmgUIshes between employees exempt from bargammg and those governed by It. LIkeWise, SectIOn 29(3) of the Public SenJice Act provIdes that "[a]ny prOVISIon m a collectIve agreement that IS m conflIct With a prOVISIon of a regulatIOn as It affects the employees of a bargammg unIt covered by the collectIve agreement prevails over the prOVISIOn of the regulatIOn." Under thIS prOVISIOn, If there IS a conflIct between Reg. 977 and a collectIve agreement, the collectIve agreement prevails ThIS approach IS followed each tIme a collectIve bargammg regIme begms Usually, m the pnvate sector, the common law or mdIvIdual contracts of Employment govern the employment relatIOnshIp untIl a collectIve agreement IS entered mto Once the collectIve agreement IS m place, however, It governs and controls the relatIOns between the partIes and the common law or mdIvIdual contract no longer apphes. The 15 dIfference here IS that the employment relatIOnshIp, smce the Crown IS a pubhc body, was governed by statute, not the common law But the pnncIple IS the same The two regImes do not C(}eXIst to govern employee terms and condItIOns of employment. The collectIve bargammg regIme preVails That was the effect of the amendments to CECBA whIch authonzed collectIve bargammg for employees such as the gnevor The gnevor was clearly advIsed of thIs approach. A May 23, 1995 letter to Mr Gilham regardmg hIS "status and the Crown Employees CollectIve Bargammg Act" mformed hIm that hIS pOSItIOn "has been confirmed as ehgible for bargammg and belongmg WIthm the newly-represented seventh unIt." It contmues Your pay, benefits, penSIOn and workmg condItIOns contmue to be governed by management pohcIes and the Pubhc ServIce Act, untIl a collectIve agreement IS negotiated. Your pay, benefits, penSIOn and workmg condItIOns Will be governed by the first collectIve agreement. Thus, the gnevor, m December 1995, was well aware that hIS nghts under the Public Sen1ice Act would be changed and governed, mstead, by a collectIve agreement. What occurred here - the ImplementatIOn of a collectIve bargammg regIme - IS qwte dIfferent from the SItuatIOn m AMAPCEO (COlt ling) and Ministl) of Transportation, GSB No 2064/99 (DIssanayake) In that case, a statute, BIll 7, revoked the gnevor s mclusIOn m the AMAPCEO bargammg unIt under CECBA and the Employer, as a result, demed the gnevor nghts under ArtIcle 18 8 l(h) after that date, even though at the nme he had been surplussed, he was a member of the unIt and governed by the collectIve agreement. Vice-Chair DIssanayake, based on the 16 Interpretation Act and the common law pnncIple that It IS "presumed that legIslatIOn IS not mtended to mterfere With vested and accrued nghts" determmed that the gnevor retamed nghts under ArtIcle 18 8 l(h) He concluded at p 8 [A]n employee at the tIme of surplussmg may reasonably expect that he Will have a nght to a dIrect aSSIgnment under artIcle 27 and that as a result, he would have nghts under artIcle 188 l(h) folloWing a duect aSSIgnment, proVIded he meets the condItIOns therem. Smce BIll 7 dId not eXist at the tIme the gnevor was surplussed, he was reasonably entItled at that tIme to have such an expectatIOn. Those were the rules that would govern hIS future employment With the OPS It IS SImply unfair to change those rules as a result of subsequent legIslatIOn. In the present case, because of the advent of a collectIve bargammg regIme whIch predated hIS surplus, the gnevor could not reasonably expect that s 14(4) would contmue to govern hIS future employment With the OPS At the tIme he was surplussed and redeployed, the whole Issue of s. 14 was subject to negotiatIOn. There could be no reasonable expectatIOn that It would remam m ItS present form, as mdeed It dId not, or even m any form. It was a subject of collectIve bargammg and thus subject to change Further, the partIes speCIfically agreed, m the Voluntary RecogmtIOn Agreement, that the statutory prOVISIOns regardmg "the current transfer/surpl us/redeployment proVISIons and practIces" applIed only "untIl a first collectIve agreement IS entered mto " Employees would receIve the benefit of those prOVISIOns untIl the first collectIve agreement, not thereafter Thus, to the extent that clear language was needed to negate the contmuatIOn of the Public SenJice Act, the Voluntary RecogmtIOn Agreement prOVIdes such language 17 F or all of these reasons, I cannot conclude that the gnevor s nghts under s.14( 4) "vested" at the tIme he was surplussed, or that he had a reasonable expectatIOn that s 14(4) would contmue to govern hIS future employment With the OPS The reasonable expectatIOn of the partIes - as well as the gnevor - m the penod between recogmtIOn and the collectIve agreement was that s 14(4) would not contmue to govern the employment relatIOnshIp once the first collectIve agreement was entered mto I further conclude that the mclusIOn of Part VI m the partIes first collectIve agreement, through the May 5, 1998 letter of understandmg, does not change the substantIve effect of Part VI. That letter states as follows May 5, 1998 The partIes agree that, despIte language to the contrary m the Voluntary RecogmtIOn Agreement, any dIspute m respect of an alleged VIOlatIOn of Part VI of the Voluntary RecogmtIOn Agreement Will be enforced under ArtIcle 15 of the CollectIve Agreement. ThIS letter of understandmg forms part of the collectIve agreement. ThIS prOVISIon, when read m hght of Part VI of the Voluntary RecogmtIOn Agreement as a whole, does not serve to change the substantIve terms of Part VI, as the Umon suggests The words "despIte language to the contrary" do not change the words "untIl a first collectIve agreement IS entered mto" It changes only the enforcement mechanIsm. Instead of havmg dIsputes about an alleged VIOlatIOn govemed by the gnevance process set forth m Part VI of the Voluntary RecogmtIOn Agreement, dIsputes are to be enforced through ArtIcle 15 of the collectIve agreement. Accordmgly, the substantIve hmItatIOn m Part VI - that the current transfer/surplus/redeployment 18 prOVISIons apply only untIl a first collectIve agreement IS entered mto - contmues under the May 5, 1998 letter of understandmg. Without questIOn, the partIes turned theIr mmds to the Issues under s.14 (4) of Reg. 977 The Intenm Agreement deals extensIvely With Job securty prOVISIOns ArtIcle 2 of the Intenm Agreement noted that "Issues related to SectIOn 14(4) of the Pubhc SerVIce Act and ItS apphcabIlIty With respect to bumpmg, dIrect aSSIgnment and recall" would be subject to negotiatIOn m subsequent first contract negotiatIOns. The first contract dealt extensIvely With thIS Issue m ArtIcle 27 and ArtIcle 18 Then, on February 29, 2000, AMAPCEO and the Employer reached a further agreement that ArtIcle 188 l(h) would also apply when an employee was surplussed under the Intenm Agreement. The subject of employees who were suplussed pnor to the Intenm Agreement was not addressed. The result IS that the collectIve agreement, as It currently eXIsts and as amended by the February 29, 2000 agreement, does not apply to the gnevor ArtIcle 188 l(h) applIes only to employees who are "dIrectly aSSIgned under ArtIcle 27 [or the Intenm Agreement] " The gnevor was not dIrectly aSSIgned under ArtIcle 27 or the Intenm Agreement. The Umon asserts that It IS unfair and contrary to the mtent of the partIes that the gnevor should fall mto thIS "black hole" - depnved of hIS nghts under s. 14(4) by VIrtue of the negotiatIOn of SImIlar nghts under the collectIve agreement. It asserts that nghts under the Public Sen1ice Act flow seamlessly mto the nghts under the collectIve agreement. 19 I certamly agree that the gnevor IS m an untenable posItIOn. His sItuatIOn stnkes me as unfair to hIm. There does not appear to be any vahd reason why an mdIvIdual such as Mr GIlham has no OppOrtunIty to return to hIS ongmal classIficatIOn through a dIrect appomtment when sImIlarly sItuated employees, both before AMAPCEO was recogmzed and after the Intenm Agreement was SIgned have that OppOrtunIty It IS Just the group of employees who were surplussed pnor to the Intenm Agreement who fall mto what counsel so colourfully charactenzed as a "black hole" DespIte the meqUIty of thIs, I stIll cannot conclude that the gnevor may enforce nghts under the Public Sen1ice Act m 1999 ThIS IS because, even If I am wrong and the gnevor S nghts under s.14 (4) "vested" at the tIme of hIS surplus, enforcement of those nghts m 1999 would conflIct With the nghts of other employees under the collectIve agreement. With certam lImIted exceptIOns, employees have the nght to compete for vacant pOSItIOns AllOWing the gnevor to exerCIse nghts under s 14 (4) to transfer to a vacant pOSItIOn would conflIct With that nght. Under s. 29(3) of the Public Sen1ice Act, the collectIve agreement preVails over any conflIctmg regulatIOn. The fact that s 14 (4) was mcorporated mto the collectIve agreement by VIrtue of the May 5, 1998 letter of understandmg does not aVOId thIS result. Enforcement of the gnevor s nghts under s. 14(4) m 1999, even If mcorporated mto the collectIve agreement, conflIcts With the nght of other employees under the collectIve agreement to compete for vacant pOSItIOns ThIS SItuatIOn IS one of the reasons that the pre-collectIve bargammg and post-collectIve bargammg regImes cannot co-eXISt. 20 For thIs reason as well, I cannot accept the Umon s posItIOn that the gnevor s nghts under the Public SenJice Act apply to the penod before the first collectIve agreement was SIgned on March 6, 1996, but not thereafter, and that hIS nghts under s. 14(4) whIch vested at the tIme he was surplussed may be enforced m 1999 Although the Umon IS correct that the gnevor s nghts under the Public SenJice Act apply to the penod before the first collectIve agr eement was SIgned and not thereafter, even If they dId "vest" at the tIme they cannot be enforced m 1999 To enforce those nghts now would conflIct With the nghts of other employees m the collectIve agreement. Nor IS It possible, as the Umon suggests, to read the gnevor s nghts under s. 14(4) m a manner consIstent With the collectIve agreement. Accordmgly, despIte the eqUItIes of the SItuatIOn, for all the reasons set forth above I conclude that the gnevance must be dIsmIssed. Dated at Toronto, thIS 15th day of December, 2000 H. i.brmtElc RandI Hammer Abramsky, Vice-Chair 21