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Home My WebLink About2002-0610.OPSEU (Union Grievance).02-09-04 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~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#06l0/02 UNION#02Ul42 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 (Management Board Secretanat) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Donald Eady Counsel Paliare Roland Rosenberg Rothenstem LLP FOR THE EMPLOYER Stephen Patterson Associate Director Management Board Secretanat HEARING August 30 2002 2 DECISION This is an mtenm relief applicatiOn by the Umon which relates to a Umon gnevance dated June 27 2002 In the gnevance the Umon claims that the Employer has failed to comply with three Memoranda of Settlement which were ratified on May 5 2002 Paragraph 3 of each Memorandum provides that "retroactive adJustments shall be paid as soon as reasonably possible after ratificatiOn by both parties" and also provides that any adJustment to the wage rates shall be paid for all hours worked retroactive to January 1 2002 The Umon takes the positiOn that the Employer has not paid the retroactive adJustments as soon as reasonably possible and it requests that the Employer promptly pay the retroactivity With mterest. The Umon gnevance signed by Ms Casselman followed an announcement by the Employer that all OPSEU employees' wage mcreases will be implemented and any retroactivity owmg will be paid by October lO 2002 A heanng on the ments was scheduled for July 3l and August 1 2002 Pnor to July 3l 2002, the Employer announced that OPSEU employees would receive on August 1 2002, an mtenm retroactive payment of 3 5% of their regular earnmgs between January 1 and July 7 2002 At the heanng on July 3l 2002, the Employer requested that the heanng be adJourned. After considenng the parties' submissiOns on the Employer's motiOn to adJourn, I ruled orally at the heanng that it would not be appropnate to adJourn the heanng m the Circumstances After discussmg procedural and other issues With counsel, 3 mcludmg the number of heanng days it would take to deal with the ments, it became apparent that the best course was to proceed with the matter on subsequent heanng dates Five heanng dates were set, commencmg with Monday October 28 2002 On August 26 2002, the Employer announced that two additiOnal mstallment payments would be paid effective September l2, 2002 On that date, all active OPSEU employees will receive an additiOnal 3 5% of their regular earnmgs for the pay penod from July 8 to August l8 2002, and classified employees m the CorrectiOnal Bargammg Umt at the salary maXimum for at least l2 months as of January 1 2002, will receive 5% of their regular earmngs from January 1 to August l8 2002 At the mtenm reliefheanng on August 30 2002, the Umon requested that the Employer be ordered to pay the negotiated rates and all retroactivity owmg on September l2,2002 Recogmzmg that such an order had the appearance of a final order the Umon advanced three alternative requests It argued that additiOnal OPSEU employees should receive a retroactivity payment on September l2, 2002 The Umon also submitted that OPSEU employees should receive an additiOnal retroactivity payment on September 26 2002 And lastly the Umon argued that I should at least direct the Employer to pay the new rates and all retroactivity owmg by October lO 2002, which is consistent With the Employer's undertakmg. Given that OPSEU employees are entitled to the new rates and retroactivity that the Employer appears to make additiOnal payments m response to OPSEU takmg a legal step and that the requested payments are not different m kmd from the payments the Employer will be makmg on September l2, 2002, the Umon argued that 4 the balance of convemence favoured the Umon and its members The Umon referred me to the followmg two decisiOns Ministry of Correctional Services and OPSEU (Sammy et al) 0224/01 (Harns) and Ontario Human Rights Commission and OPSEU (Fox et al) 0507/01 (Stewart) The Employer took the positiOn that the Umon was not entitled to mtenm relief m these Circumstances The Employer argued that the Umon's pnmary request amounted to a final order and, therefore, did not constitute appropnate mtenm relief The Employer also submitted that smce it could not accomplish the Umon' s first two alternative requests, it would not be m the mterests of good labour relatiOns to grant these directiOns The Employer noted that the October 10 2002 date could be placed m Jeopardy if it were compelled to devote resources to attempt to meet these requests If! was mclined to grant the Umon' s third alternative request, the Employer argued that I should make the directiOn to make retroactive payments on October 10 2002, subJect to unforeseen Circumstances The Employer argued that, given itS payroll system, it was domg the best it could m the Circumstances Havmg regard to the timmg of the mtenm relief applicatiOn and the fact that the only possible remedy the Umon could obtam if successful is damages m the form of mterest, the Employer submitted that the balance of convemence did not favour the Umon. The Employer referred me to Re Globe and Mail and Southern Ontario NeYf,spaper Guild (Kelly) (1993), 39 L AC (4th) 85 (P Picher) In Ministry of Correctional services and OPSEU (Sammy et al) supra, Vice- Chair Harns referred to the two-fold test for mtenm relief The first issue for 5 determmatiOn is whether there is an arguable case m the mam proceedmg. In the case at hand the Employer conceded that the Umon has an arguable case and that itS mtenm relief applicatiOn is not fnvolous or vexatiOus The second issue for determmatiOn is whether the balance of harm or mconvemence favours one side or the other In Re Globe and Mail and Southern Ontario NeYf,spaper Guild (Kelly) supra, the arbitrator canvassed a number of factors relevant to the balance of harm issue, mcludmg labour relatiOns consideratiOns, the ability of the unsuccessful party to be compensated m damages, the expeditiOn or lack thereof m bnngmg the applicatiOn for mtenm relief and the extent of delay before the resolutiOn of the gnevance As the decisiOns m this area suggest, the pnmary focus m an mtenm relief applicatiOn is on whether the applicant has established that there are compelling reasons to alter the status quo An alteratiOn of the status quo may be appropnate if the harm to the applicant as a result of the alleged breach of the collective agreement cannot be adequately addressed with a remedial response at the conclusiOn of the proceedmg. There appears to be a high probability that the new rates of pay and all retroactivity will be paid on October 10 2002 In other words, the Employer's obligatiOn to make retroactive payments will most probably be satisfied on the third pay penod from this date The Employer advises that it will know for sure whether it will meet itS obJective on October 1 2002 Apart from this relatively bnef penod of time, the only remedy the employees will be entitled to if the gnevance succeeds is damages m the form of mterest on earmngs from the time the Employer should have paid all retroactivity to October 10 2002 Given the Circumstances of this case, it is my conclusiOn that the 6 balance of convemence does not favour the Umon and its members One can certamly understand why the Umon's members would want to have received all retroactivity sooner However there is no basis on the facts of this case to disturb the status quo The alleged breach m this mstance can be adequately addressed with damages at the conclusiOn of the proceedmg. Accordmgly the Umon's mtenm relief applicatiOn is dismissed. The parties agreed to two additiOnal earlier heanng dates The parties also agreed to a heanng later m the day on October 1 2002, unless the Employer confirms dunng the course of that day that it will meet itS October 10 2002 obJective The heanng of this gnevance will contmue on Thursday September 19 Tuesday October 1 at 4 00 P m. Tuesday October 15 Monday October 28 Monday November 18 Fnday November 22, Fnday December 6 2002, and Monday January 27 2003 Dated at Toronto this 4th day of September 2002 pC ~ .,= ~ Ken Petryshen - Vice-Chair