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HomeMy WebLinkAbout2002-0610.Union Grievance.04-03-25 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0610 UNION# 02U142 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 Paliare Roland Rosenberg Rothenstem LLP Barnsters and SOliCitorS FOR THE EMPLOYER Stephen Patterson Associate Director Labour Practice Group Management Board Secretanat HEARING October 15 28 November 18 22, December 6 2002 January 27 March 5 & Apnl30 2003 2 DeCISIon The Crown m Right of Ontano and the Ontano Public Service Employees Umon (herem after referred to as the "Umon" or "OPSEU") entered mto Memoranda of Settlement dated May 2, 2002, which were ratified on May 5 2002, settling the terms of renewal Collective Agreements The Umon filed a policy gnevance dated June 27 2002, m response to an announcement by the Employer that it planned to reconcile and implement retroactive adJustments on October 10 2002 In its gnevance, the Umon claims that the Employer is failmg to implement the Memoranda of Settlement m good faith and specifically that "the employer is failmg to pay the adJustment to the wage rates retroactively to January 1 2002, as soon as reasonably possible after ratificatiOn" and requests that the Employer promptly pay the retroactive adJustment with mterest. The Employer takes the positiOn that the retroactive adJustments were paid as soon as reasonably possible after ratificatiOn. There was no challenge to my JunsdictiOn to hear and determme this gnevance The Umon's request for mtenm relief was heard on August 30 2002 The Employer conceded that the Umon had an arguable case and that itS request for mtenm relief was not fnvolous or vexatiOus In a decisiOn dated September 4 2002, I addressed the issue of the balance of harm or mconvemence as follows " 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 3 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 earnmgs 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 balance of convemence does not favor 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 heanng on the ments commenced on October 15 2002, and reqUired 8 days of heanng. The parties agreed to some facts and the Employer called four witnesses to explam the implementatiOn process and why it took until October 10 2002 to implement the wage adJustments and the final retroactive payment. The four witnesses were Mr Bill Kent, Director ofHR Services Delivery Branch, Ms Laune Chnstensen, Manager of Busmess Support, Mr Ted Paradis, Manager of the ApplicatiOn Support Umt, and Ms Elizabeth McKmght, Director of Corporate Labour RelatiOns and NegotiatiOns Secretanat. In additiOn to the oral eVidence, there were thirty-one exhibits filed. QUite a number of these exhibits consisted of many documents, a number of which were techmcal m nature The facts agreed to by the parties are as follows The Employer employs approximately 60000 employees at admimstrative offices, correctiOnal facilities, hospitals and other locatiOns throughout the Provmce of Ontano The Umon represents employees m what were SiX separate bargammg umts Admimstrative, CorrectiOnal, InstitutiOnal & Health Care, Office AdmimstratiOn, OperatiOnal and Mamtenance and Techmcal The Umon represents m excess of 45000 Government ofOntano employees In December 2001 the parties agreed to consolidate five of the SiX bargammg umts mto a smgle Umfied bargammg umt. As a result, the parties negotiated Collective Agreements for two bargammg umts the Umfied bargammg umt 4 (previOusly consistmg of the Admimstrative, InstitutiOnal & Health Care, Office AdmimstratiOn, OperatiOnal & Mamtenance and Techmcal umts) and the CorrectiOns bargammg umt. The parties also negotiated a Central Collective Agreement covenng all employees represented by the Umon. The relevant collective agreements expired on December 31 2001 On March 13 2002, the Umon commenced a legal stnke The Work Force InformatiOn Network ("WIN") was not designated as an essential service dunng the stnke and therefore was not operatiOnal dunng the work stoppage On May 2,2002, the parties agreed, subJect to ratificatiOn by both parties, to a new Central Collective Agreement, a Umfied Collective Agreement and a CorrectiOnal Collective Agreement ("the 2002 Agreements") Article 3 of each Memorandum of Settlement provides as follows 3 Except as provided otherwise m the terms of the Collective Agreement, any adJustment to the wage rates shall be paid for all hours worked retroactive to January 1 2002 Retroactive adJustments shall be paid as soon as reasonably possible after ratificatiOn by both parties The 2002 Agreements make the followmg changes to wages and salanes requmng adJustments to January 1 2002 1 The Umfied and CorrectiOns Collective Agreements provide for across the board mcreases of 1 95%, 1 % for productiVity and effiCiency gams, and o 55% for a special adJustment, for a total of 3 5% 2 Special classificatiOn adJustments/salary notes amendmg the Umfied Collective Agreement a. Nurse related classificatiOns - an mcrease of 10% to each step m the range b SCientists 1 2, 3 and 4 - an mcrease of 8% to each step m the range c CommumcatiOns operator 1 2 and 3 - an mcrease of 8% to each step m the range d. Salary note for OCW A. e Resource Techmcian 4 - a 4% mcrease f TransportatiOn Enforcement Officer - a 4% mcrease g. Technologists and Laboratory Attendants related classificatiOns - a 4% mcrease h. Classroom Assistant and School Aide - a 4% mcrease 5 3 Special ClassificatiOn adJustments amendmg the CorrectiOns Collective Agreement a. ProbatiOn Officer 1 and 2 - an mcrease of 4% to all rates m the salary range 4 The Central Collective Agreement mcreasmg the percent m lieu of benefits for unclassified employees from 2% of basic hourly rate to 6% of basic hourly rate and expanSiOn to part-time unclassified employees 5 Student wage rate mcreases 6 Under the Umfied Collective Agreement, employees at the maXimum of their ranges are eligible for an mcrease to their pay of 1 % based on satisfactory performance Shift PremiUm mcrease and adJustment to manner m which it is paid (effective May 5 2002) 7 Under the CorrectiOns Collective Agreement, an additiOnal step on the gnd of all classificatiOns Each step is to be 5% above the current highest step The previOus collective agreements (January 1 1999 to December 31 2001) were negotiated without a work stoppage and ratified on March 27 1999 The wage adJustments were 1% effective January 1 1999 1 35% effective January 1 2000 and 1 95% effective January 1 2001 The first year wage reViSiOns and retroactive pay adJustments were implemented on the May 27 1999 pay date, approximately two months after ratificatiOn. Further adJustments were reflected on the June 10 1999 pay date The collective agreements for the term January 1 1994 to December 31 1998 were negotiated after a five-week stnke m 1996 and ratified on March 31 1996 There were no adJustments to salary rates dunng the life of these collective agreements Pay m lieu of benefits of 2% was negotiated for unclassified employees dunng that round of bargammg. ThiS provisiOn was implemented sometime after August 26th, 1996 SiX months after the stnke ended. 6 The AssociatiOn of Management, Admimstrative and ProfessiOnal Crown Employees of Ontano ("AMAPCEO") is the bargammg agent representmg approximately 6000 Crown employees The Employer and AMAPCEO agreed to the full and final settlement of their collective agreement (effective Apnl1 2001 to March 31 2004) on February 12,2002, with ratificatiOn occurnng on March 19 2002 The retroactive adJustments to AMAPCEO wages, which were to be effective March 31 2001 were delayed as a result of the stnke by the Umon. ProfessiOnal Engmeers Government of Ontano ("PEGO") is the bargammg agent representmg some 400 Crown employees who are professiOnal engmeers, land surveyors or engmeers m trammg. The Employer and PEGO agreed to a renewal collective agreement on August 11 2001 with ratificatiOn occurnng on August 31 2001 Just pnor to July 31 2002, the Employer announced on August 1 2002 that bargammg umt employees would receive an mtenm retroactive payment of 3 5% of their regular earmngs between January 1 and July 7 2002 The Employer advised that any additiOnal retroactivity owmg would be paid on October 10 2002, when the wage mcreases would be implemented. In a letter dated August 26 2002, the Employer advised the Umon that two additiOnal mstallment payments would be paid effective September 12, 2002 On that date, all active employees received an additiOnal 3 5% of their regular earmngs for the pay penod from July 8 2002 to August 18 2002, and classified employees m the CorrectiOnal bargammg umt at the salary maXimum for a least 12 months as of January 1 2002, received 5% of their regular earnmgs from January 1 to August 18 2002 The Employer witnesses testified m considerable detail about the way the 2002 Agreements were implemented and counsel for the Umon thoroughly cross-exammed each 7 Employer witness It is unnecessary to set out here their testimony m such detail I will summanze their eVidence takmg mto account those areas where the Umon focused itS attentiOn and will refer to some areas m more detail when addressmg some of the Umon' s submissiOns The implementatiOn process reqUires that changes be made to WIN and CORP A Y two systems owned and managed by the SSB WIN is a corporate applicatiOn to assist Human Resources and Payroll Management. CORP A Y is a centralized payroll system. An mterface between the two systems operates to carry data on employee status and changes to CORP A Y to ensure that an employee gets paid. Dunng the stnke, CORP A Y was operatmg to the extent necessary to pay those mdividuals who were still workmg. Makmg the necessary changes to the systems mvolves a fairly complicated process utilizmg the services of three groups of employees, usually workmg m teams One group of employees is m the HR Service Delivery Branch and they are classified as Busmess Process Consultants, Tier-2 Busmess Analysts, Data Quality Analysts and Testers Another group is the Payroll and Benefit Representatives (PBRs) The 270 PBRs employed withm the SSB are assigned a number of employees withm a particular Mimstry The other group is m the ApplicatiOn Support Umt and the employees here are classified as Busmess Systems Analysts, ApplicatiOn Support and Programmers For convemence, I will refer to thiS latter group of employees as the tech umt staff The general implementatiOn process begms with the details of the changes to a particular collective agreement bemg conveyed from NegotiatiOns Secretanat m order that the reqUired system changes can be ascertamed. Once the busmess analysis phase is completed, the busmess reqUirements are documented to form the baSiS of the system deSign. The tech umt staff 8 develops the techmcal reqUirements, documents them, and develops the programmmg code based on this documentatiOn. Once the programmmg is completed, the tech umt staff performs umt testmg which is reviewed by employees m the HR Service Delivery Branch. Integrated testmg is then performed to ensure that the changes m WIN translate correctly mto CORP A Y After testmg, the process moves on to the productiOn phase As part of the process staff must be tramed on the system changes and the new busmess processes Individuals responsible for implementmg the 2002 Agreements held meetmgs m Apnl 2002 to discuss post-stnke planmng issues The SSB and tech umt staff were not provided with the details of any possible settlement, nor were they consulted on how best to structure a settlement m order to provide for speedy implementatiOn. Followmg a meetmg on Apnl 9 2002, a draft post-stnke time line summary was prepared which set out the work which would be necessary to perform once the stnke was resolved. ThiS draft was a workmg document which underwent changes over time, particularly when the details of the OPSEU settlement were disclosed. The draft sets out the approximate time it will take to complete certam work under the responsibility of the SSB and when the work will commence after ratificatiOn. The essential features of thiS draft for our purposes are as follows WIN and CORP A Y ReconciliatiOn - to take two weeks startmg immediately after ratificatiOn. Post Stnke TransactiOn &ReconciliatiOn - to take four weeks startmg m the third week after ratificatiOn. AMAPCEO 2001 Collective Agreement - to take mne weeks startmg m the fourth week after ratificatiOn. PSA Changes - to take twelve weeks startmg m the fifth week after ratificatiOn. AMAPCEO 2002 Collective Agreement - to take eleven weeks startmg m the eighth week after ratificatiOn. OPSEU Collective Agreement - to take thirteen weeks startmg m the tenth week after ratificatiOn. MCP Salary RevisiOn - to take five weeks startmg m the twenty-third week after ratificatiOn. 9 MCP P4P SMG Incentive - to take SiX weeks startmg m the twenty-third week after ratificatiOn. PEGO P4P - to take three weeks startmg m the twenty- mnth week after ratificatiOn. There is no dispute that the WIN & CORP A Y ReconciliatiOn and the Post Stnke TransactiOn & ReconciliatiOn reqUired SiX weeks of work m order to get both systems up and runmng and synchromzed. It became eVident after ratificatiOn that it was unnecessary to perform the PSA work dunng the relevant penod. The 2001 AMAPCEO collective agreement was scheduled to be implemented on March 18 2002, with the Apnl 1 2002 mcreases scheduled for implementatiOn a short time later As noted previOusly thiS AMAPCEO implementatiOn work not completed due to the OPSEU stnke Given the length of the stnke, much of the work relatmg to the AMAPCEO collective agreement had to be redone, given there now was a longer retroactivity penod. Although the draft document mdicates otherwise, Ms Chnstensen testified that work on the OPSEU implementatiOn commenced withm the first two weeks after ratificatiOn. The documentary eVidence establishes that many of the proJects, mcludmg the OPSEU implementatiOn, were worked on simultaneously The busmess analySiS phase of the OPSEU implementatiOn mvolved a senes of meetmgs and phone calls With NegotiatiOns Secretanat to determme what changes were made m the 2002 Agreements The busmess analysts and tech umt staff exammed the details of these changes to determme what busmess processes should be established and what system changes were reqUired. Because some aspects of the work needed to be done before others and some components of the 2002 Agreements reqUired detailed attentiOn due to their complexity it was necessary to divide the work mto separate proJects ThiS resulted m the development of many documents dealing With system reqUirements The amount of time necessary to complete thiS 10 phase of the process is very dependent on the number of changes to a collective agreement and the complexity of the system changes Given the nature of the OPSEU implementatiOn and the desire to get the work done as soon as possible, the SSB received additiOnal fundmg. An amount of $675 000 was allocated for reconciliatiOn activity to pay for overtime for PBRs and busmess support staff The SSB and the Service Systems Branch, where the tech umt staff is located, received an additiOnal $613 000 to pay for added resources such as a Busmess Analyst, a Tester ApplicatiOn Consultants, twenty temporary PBRs and overtime for PBRs This latter budgeted amount was exceeded to a considerable degree Ms Chnstensen testified that she was able to secure temporary help for a number of positiOns to assist m the OPSEU implementatiOn. She mdicated that she was able to obtam the persons with the necessary skills and familianty with the systems that the Employer reqUired. Mr Kent testified that any proJect only reqUires a fimte number of participants and that the additiOn of persons m excess of that number could have the effect of slowmg down the process He and Ms Chnstensen mdicated that the timmg of the OPSEU implementatiOn was not affected by a lack of resources It was not long after it was adVised of the implementatiOn date that the Umon began to exert some pressure on the Employer to implement the 2002 Agreements sooner AdVised of the Umon's concerns near the end of May Ms Chnstensen was asked ifher Branch could do anythmg to advance the implementatiOn date After considenng the matter she concluded that there was no way to speed up the process Mr Kent testified that there were further requests from NegotiatiOns Secretanat to speed up the process and that each time they considered the issue they decided that the full implementatiOn of the 2002 Agreements could not be achieved before October 10 2002 Other optiOns were considered and by July it was decided that an 11 mtenm payment could be made without utilizmg resources that would Jeopardize the October 10 2002 obJective The Employer secured the services of some temporary employees who had expenence with CORP A Y m order to make an mtenm retroactive payment. These persons worked pnmanly on a weekend and only with CORP A Y Although payroll ran late, the Employer was able to make the first mtenm payment on August 1 2002 In response to further requests from NegotiatiOns Secretanat, the second mtenm payment was done m essentially the same way and was paid on September 12, 2002 The mtenm payments reqUired additiOnal programmmg to reconcile the payments with the final payment on October 10 2002 After refernng m considerable detail to the challenges and complexity of the OPSEU implementatiOn, Mr Kent, Ms Chnstensen and Mr Paradis testified that the full implementatiOn simply could not have been completed pnor to October 10 2002 Mr Kent mdicated m retrospect that perhaps the sequencmg of the work could have been different, but that thiS would not have altered the October 10 2002 completiOn date Mr Paradis testified that he imtially estimated that the OPSEU implementatiOn could not be completed until December 2002 and that he was surpnsed that it was accomplished by October 10 2002 Mr Paradis testified that there were 252,000 new pay related records that were processed due to the implementatiOn of the 2002 Agreements The parties agreed that the issue for determmatiOn is whether the payment of the wage mcreases and final retroactivity on October 10 2002 was reasonable m the Circumstances The Umon takes the positiOn that the standard of reasonableness for payment is 90 days after ratificatiOn, not the 157 days that it actually took, and that the retroactive payments should have been made by August 4 2002 It seeks a declaratiOn that the Employer contravened Article 3 of the Memoranda of Settlement and an order directmg the Employer to pay mterest on any amount 12 owmg after August 4 2002 In the Umon's View the mtenm retroactivity payments go to mitigatiOn of the damages and not to the ments of the case Counsel for the Umon submitted that one must be careful not to apply the reqUirement to pay retroactivity withm a reasonable time m a manner which simply allows the Employer to determme what reasonable means Counsel argued that there are two levels upon which one can examme the facts of this case one level consistmg of what the Employer and Umon knew pnor to executmg the Memoranda of Settlement and the other bemg how the Employer chose to implement the 2002 Agreements Counsel referred firstly to what he argued were certam cntical facts which eXisted pnor to the settlement and which, by themselves, should dispose of thiS matter m the Umon's favour Counsel submitted that there is a practice between these parties of implementmg the collective agreements m approximately mnety days, as eVidenced m particular by the implementatiOn of the 1999 collective agreement. Counsel argued that the Umon was therefore entitled to assume m 2002 that mnety days constitutes a reasonable implementatiOn penod, particularly if the Employer does not mdicate otherwise Counsel submitted that a number of the new provisiOns m the 2002 Agreements which contnbuted to the complexity of implementatiOn were a result of Employer demands Counsel argued that the complexity the Employer now relies upon to Justify the delay is a functiOn of the positiOns taken by the Employer dunng bargammg for which Umon members should not be penalized. 13 Counsel noted that the Employer drafted the language m the Memoranda of Settlement. He submitted that havmg drafted the relevant proVisiOns, particularly Article 3 that the language should be construed stnctly agamst the Employer such that it is not entitled to obtam any benefit from any unnecessary delay Counsel also noted that the Employer and Umon agreed to the change m bargammg structure to a Umfied bargammg umt m December 2001 However the Employer did not attempt to make changes to WIN and CORP A Y to reflect thiS new structure until the end of the work stoppage Counsel argued that the failure of the Employer to make these necessary changes before the stnke contnbuted to the delay m implementmg the 2002 Agreements Counsel further submitted that there was a lack of commumcatiOn between the negotiators for the Employer and the mdividuals responsible for implementmg the 2002 Agreements MBS did not share any details With the SSB as bargammg progressed, nor did it seek adVice as to how best to structure the settlement from a systems perspective The SSB and the tech umt staff were not adVised m advance about such matters as the 1 % max issue, the special cases and the pay m lieu of benefits issue for unclassified employees, all of which the Employer says contnbuted to the complexity of implementmg the 2002 Agreements Counsel argued that the disconnect m thiS respect between the Employer's representatives at the bargammg table and the staff responsible for implementatiOn contnbuted to an unreasonable delay m the implementatiOn process Counsel emphaSized that the Employer knew at the time of the settlement that it could not implement the mcreases and retroactivity until October 2002, or later and it did not tell the Umon. Counsel submitted that if the Umon had been adVised of the Employer's knowledge 14 about implementatiOn, the parties could have discussed the matter and addressed the issue m a way which may have contnbuted to an earlier implementatiOn date In addressmg the actual implementatiOn of the 2002 Agreements, the Umon did not suggest that mdividuals were not workmg hard enough or were not domg their best. However it took the positiOn that certam facts and mferences from these facts established that 157 days for implementatiOn was unreasonable Counsel noted that some of the facts relevant to thiS portiOn of the argument were related to some of the facts referred to the earlier submissiOns Counsel referred to Ms McKmght's testimony where she stated that a number of collective agreements came up for renewal begmmng m 2001 and that the Employer was confronted with "an olympiC year of bargammg" Counsel argued that there were no sigmficant resources allocated to the SSB or to the tech umt to effectively deal with the mcreased workload. Notmg that there was an exceSSive amount of work to be done at the same time counsel submitted that the Employer was reqUired to establish pnonties and stagger the work, and that it did so without any consultatiOn with the Umon. Although not suggestmg that the Employer should have implemented the 2002 Agreements before the AMAPCEO collective agreement, counsel submitted that msufficient resources were allocated to the AMAPCEO implementatiOn, which had the effect of delaymg the OPSEU implementatiOn. Counsel submitted that the decisiOn to give pnonty to vanous pieces of work should not preJudice OPSEU members and that the Employer should pay for the cost associated with any unreasonable delay attnbutable to these decisiOns 15 Counsel also submitted that the Employer paid some attentiOn to implementatiOn and made two mtenm retroactivity payments once the Umon complamed about the time lines and eventually filed its gnevance He noted that the amount of work associated with the mtenm payments was not considerable Counsel argued that the fact that the Employer made mtenm retroactivity payments m response to pressure from the Umon demonstrates that full implementatiOn could have been carned out sooner Counsel also submitted that the tech umt staff was not mstructed to speed up their part of the process Counsel further submitted that the delay m the implementatiOn process was not related to the programmmg and testmg phases and what came after but occurred because of the delay on the part of NegotiatiOns Secretanat m providmg clear mstructiOns about the nature of the changes to the 2002 Agreements and how to implement them Refernng to the timmg of the June 26 2002 OPSEU implementatiOn "kick-off' and the delivery of the busmess requests, counsel argued that the time it took to determme what the changes were and to whom they applied was unreasonable Counsel referred to the fact that the SSB and the tech support staff were often faced with optiOns when it came to implementmg changes to the 2002 Agreements At times, the chOice was between an optiOn that would take more time and improve the system m the long run and optiOns which would not take as much time Counsel argued that m the case of the 6% m lieu of benefits provisiOn the Employer chose the optiOn which took sigmficantly more time to implement. Counsel submitted that thiS was unreasonable m the Circumstances and that Umon members should not be expected to pay for the delay caused by thiS Employer decisiOn. 16 In support of the Umon's positiOn that anythmg more than approximately mnety days to implement the 2002 Agreements is unreasonable, counsel referred to Re Health Employers Association of BC and Health Services and Support Community Subsection Association of Bargaining Agents an unreported decisiOn of arbitrator V Ready dated Apnl 15 2002 ThiS case concerned the failure of a number of employers to pay wage mcreases which had been the subJect of a mediatiOn/arbitratiOn award dated July 17 2001 For the most part, the monetary changes were across the board mcreases and there was no provisiOn which specifically addressed implementatiOn. Some of the employer members of the AssociatiOn had implemented all the mcreases, while some had not. The umon took the positiOn that the employers should have implemented retroactivity no later than mnety days subsequent to the July 17 2001 award. Fmdmg m favor of the umon, the arbitrator concluded that mnety days constituted a reasonable amount of time m all of the Circumstances to implement the negotiated mcreases Notwithstandmg the employer's argument that the methodology reqUired to implement some of the mcreases was complex, the arbitrator concluded that the reqUired calculatiOns could have been made withm mnety days After notmg that a number of employers were able to implement the mcreases m less than mnety days, the arbitrator mdicated that "this begs the unanswered questiOn as to why other employers could not do so" Given my dispositiOn of thiS matter it is unnecessary to reiterate counsel for the Employer's response to each of the Umon's submissiOns Counsel for the Employer noted that the 2002 Agreements contamed a sigmficant number of additiOns and reViSiOns which translated mto a high degree of detail and complexity when it came to makmg the necessary changes to WIN and CORP A Y Counsel submitted that the Employer made all reasonable efforts m the Circumstances to implement the 2002 Agreements as soon as possible, while performmg the usual payroll functiOns He noted that the Employer provided a budget for the first time to 17 implement the 2002 Agreements and that it hired the necessary personnel possessmg the expertise to perform the reqUired tasks Although Mr Kent thought that the sequencmg of the work might have been done differently counsel emphasized that Mr Kent, Ms Chnstensen and Mr Paradis expressed the View that the final implementatiOn could not have occurred any sooner than October 10 2002, and that they thoroughly supported the basis for their Views Counsel submitted that the Umon has not raised any issues which should cause me reach a conclusiOn different from the one expressed by the Employer witnesses Counsel requested that I dismiss the Umon's gnevance In the Memoranda of Settlement, the parties specifically addressed the issue of implementatiOn by placmg an obligatiOn on the Employer to pay the retroactive adJustments as soon as reasonably possible after ratificatiOn. Although it agreed that the appropnate test mvolves a consideratiOn of what is appropnate m the Circumstances, some of the Umon's submiSSiOns appeared to suggest that the Employer was obliged to implement the 2002 Agreements withm approximately mnety days of ratificatiOn, regardless of the Circumstances The language m Article 3 of the Memoranda of Settlement makes it clear that the parties did not agree to a specific date for implementatiOn, which they obViOusly had the optiOn of domg. In my View the effect of the language is that the parties agreed that the Employer would implement the terms of the 2002 Agreements and pay retroactivity as soon as possible m the context of the particular Circumstances There are, of course vanous factors which could impact on the timmg of implementatiOn, mcludmg the number and nature of the changes, the complexity of the changes from a systems perspective, the resources available to the Employer and other work demands, some of which might also be time sensitive Given the thoroughness of the Umon's approach m thiS matter these factors and others were explored m considerable detail In my View the fact that particular Circumstances impact on itS ability to implement the changes does 18 not mean that the Employer has an unfettered nght to select an implementatiOn date The Employer could breach its obligatiOn under Article 3 if it did not implement the 2002 Agreements as soon as reasonably possible after ratificatiOn and it would be directed to pay damages to the extent that the delay is unreasonable The decisiOn the Umon relies upon is only helpful to the extent that it confirms that arbitrators will allow an employer a reasonable amount of time to implement negotiated mcreases m the absence of an agreement on implementatiOn. However I agree with counsel for the Employer that the decisiOn is not particularly helpful m the context of the case at hand. Although the arbitrator determmed that mnety days constitutes a reasonable amount of time for implementatiOn, it is unclear what Circumstances led to thiS conclusiOn. What appears to have been sigmficant for the arbitrator is the fact that some employers implemented the pay mcreases m less than mnety days and there was no explanatiOn as to why the other employers were unable to do so In the matter before me one is not able to make such a companson and the Employer has provided detailed explanatiOns for the timmg of implementatiOn. Before addressmg those factors relied on by the Umon which predated the Memoranda of Settlement, I would like to comment generally with respect to thiS aspect of the Umon's submissiOns When executmg the Memoranda of Settlement on May 2, 2002, the parties agreed as of that time to the Employer's implementatiOn obligatiOn. In my View an assessment of whether the Employer has met itS obligatiOn reqUires an exammatiOn of post ratificatiOn events and, as a general propositiOn, what occurred pnor to ratificatiOn is not particularly relevant. The Umon's positiOn that there is a past practice of implementmg OPSEU collective agreements m approximately mnety days is not supported by the eVidence While the 1999 19 collective agreements, With only simple across the board mcreases, were implemented m less than mnety days, it took at least five months to implement the 1996 collective agreements when the only relevant change was a 2% m lieu of benefits provisiOn for unclassified employees There is no eVidence about the implementatiOn of other collective agreements In additiOn to how long it takes to implement a collective agreement, it is necessary to consider what changes were implemented and m what Circumstances before one can conclude that there is a relevant practice It would not be reasonable on the baSiS of the eVidence for the Umon to expect that the 2002 Agreements would be implemented m approximately mnety days, given that the Circumstances m 2002 were sigmficantly different from those m 1999 and 1996 Although the Employer proposed many of the terms contnbutmg to the complexity of the 2002 Agreements, the Umon agreed to them The fact that the complexity is enhanced by proposals from one party or the other is not a relevant consideratiOn m circumstances where a settlement reqUires the agreement of both parties Counsel for the Employer conceded that the words m Article 3 might be stnctly construed agamst the Employer given that the Employer was responsible for draftmg the proviSiOn. I agree with counsel for the Employer's submissiOn that this rule of mterpretatiOn does not advance the analysis m this case smce one is still left to determme whether the time that Employer took to implement the 2002 Agreements is reasonable m the Circumstances The Employer was aware pnor to the stnke that some specific system changes would be reqUired once a settlement was reached. For example, changes would have to be made to reflect the eXistence of the new Umfied bargammg umt. Given that the Employer's obligatiOn under Article 3 only anses as of May 5 2002, it is difficult to View what the Employer could have 20 accomplished with respect to these matters pnor to the settlement as relevant. To give thiS factor some weight would be givmg retrospective applicatiOn to language which does not call for such an applicatiOn. There is also no eVidence to suggest that the final implementatiOn of the 2002 Agreements would have been completed sooner if the Employer had addressed these items pnor to the stnke A similar response can be made with respect to the Umon's reliance on the fact that there was little commumcatiOn between persons at the bargammg table and those responsible for implementatiOn. It is not surpnsmg that details related to collective bargammg would not be disclosed until the settlement is concluded. In any event, the failure to commumcate relied on by the Umon predates May 5 2002, the time when the Employer's obligatiOn anses As well, there is no mdicatiOn from the eVidence that the 2002 Agreements would have been implemented sooner if such commumcatiOn had occurred. It also stnkes me as unlikely that these parties would structure the terms of their collective agreements based on implementatiOn consideratiOns Although neither party called a witness to testify about what, if anythmg, was discussed at the bargammg table about the implementatiOn of the 2002 Agreements, it is likely that there were no specific diSCUSSiOns about implementatiOn. The implementatiOn language contamed m Article 3 is similar to the language used by these parties m previOus settlements The submissiOn that the Employer had knowledge about the timmg of implementatiOn and should have disclosed this to the Umon has the flavour of a bad faith bargammg complamt. Even if there were some ment to the Umon's submissiOn, it does not alter the fact that my task is to determme whether the Employer implemented the 2002 Agreements m a reasonable time m the Circumstances The fact that the Employer did not volunteer mformatiOn about implementatiOn to the Umon at the bargammg table is not relevant to this task. In retrospect, it may have been useful from a labour 21 relatiOns perspective for the Employer to disclose what it knew about the timmg of implementatiOn before the conclusiOn of bargammg. I also note that there was nothmg to prevent the Umon from mqumng about the timmg of implementatiOn at the bargammg table However it is not surpnsmg after a long stnke that the negotiators for each side would not be focused on implementatiOn. I turn now to deal with those factors raised by the Umon which concern the actual implementatiOn of the 2002 Agreements The Umon's submissiOn that the Employer did not contnbute sigmficant resources to the SSB and the tech umt m order to achieve implementatiOn sooner is not consistent With the eVidence The HR Service Delivery Branch budgeted an additiOnal $675 000 for post stnke reconciliatiOn to compensate PBRs and busmess support staff for overtime necessary to complete the proJect m a timely fashiOn. In additiOn, the SSB and the tech umt obtamed $613 000 for added resources to implement the 2002 Agreements The Employer met itS needs by secunng the services of temporary employees who had the skills necessary to perform the work. The Employer witnesses provided a credible response the Umon's contentiOn that the implementatiOn work could have been completed sooner if more people were assigned to the work. The Employer was successful m obtammg the fimte number of persons reqUired to work on the implementatiOn proJ ects On the basis of the eVidence before me, it has not been established that the implementatiOn of the 2002 Agreements took as long as it did because of a lack of resources The Employer did have a considerable amount of work to perform after the OPSEU stnke, some of which was time sensitive and it did make decisiOns to pnontize thiS work without consultmg the Umon. The AMAPCEO Collective Agreement was concluded pnor to the stnke and itS implementatiOn was delayed as a result of the stnke It was not unreasonable 22 for the Employer to give some pnonty to the AMAPCEO implementatiOn m the Circumstances The same can be said of the other work the Employer performed dunng the relevant penod to the extent that any of it was given pnonty over the OPSEU implementatiOn. The eVidence does not disclose that the Employer's decisiOns about balancmg the workload had any impact on the amount of time it took to implement the 2002 Agreements Although the imtial expectatiOn m mid-Apnl2002 was that work on the OPSEU implementatiOn would commence m the tenth week after the stnke ended, the Employer started on thiS work withm a couple weeks after ratificatiOn. Havmg regard to such factors as the nature of the work, the Employer's ability to secure the necessary resources for the OPSEU implementatiOn and the performance of a lot of the post-stnke work simultaneously it is difficult to conclude that OPSEU members were preJudiced as argued by the Umon I am also not satisfied that the Employer was obliged m these Circumstances to discuss with the Umon how it managed vanous implementatiOn issues With different bargammg agents It is apparent that the mtenm retroactivity payments were made m part as a response to pressure from the Umon. It appears as well that the NegotiatiOns Secretanat was exertmg mternal pressure to have the OPSEU implementatiOn process completed as soon as possible Each time the implementatiOn issue was raised, the consistent response from the SSB after it revisited the issue, was that it was not possible to complete the process pnor to October 10 2002 Although it was concerned about divertmg resources from and perhaps Jeopardizmg the completiOn date of October 10 2002, the Employer determmed that it could make two mtenm retroactivity payments It did so by usmg CORP A Y only and the services of temporary employees In my View the payment of mtenm retroactivity illustrates a willingness on the part of the Employer to get such payments m the hands of OPSEU members as soon as possible The 23 fact that these payments were made does not establish that the Employer could have completed the final implementatiOn before October 10 2002 The imtial part of the implementatiOn process, the busmess analysis phase, did take some time As noted previOusly this phase commenced withm a couple of weeks after ratificatiOn and reqUired numerous meetmgs mvolvmg busmess analysts and mdividuals from NegotiatiOns Secretanat. The number of additiOns and reViSiOns to the 2002 Agreements undoubtedly affected the time it would take to complete thiS work. The busmess analysts met with tech umt staff m order to determme the appropnate systems solutiOns Given the importance of thiS stage of the process, it is not unreasonable for the participants to ensure that the busmess reqUirements were properly formulated to provide for accurate and manageable solutiOns Havmg exammed the references made to the documentatiOn by counsel for the Umon, I am not convmced that the time spent on the imtial part of the process of implementmg the 2002 Agreements was unreasonable m the Circumstances In decidmg how to make changes to the systems with respect to many of the changes and reViSiOns, the Employer did consider a number of optiOns m many mstances On one occaSiOn m particular the Employer chose a solutiOn which was better from an overall systems perspective, even though it reqUired more time to implement than other optiOns Based on the eVidence m thiS respect, I am not prepared to conclude that decisiOns of thiS sort were mappropnate or unreasonable m the Circumstances Once agam, there is also no mdicatiOn m the eVidence that the selectiOn of different optiOns would have resulted overall m an earlier completiOn of the OPSEU implementatiOn 24 In summary it is my conclusiOn that the factors relied on by the Umon on both levels do not establish that the Employer failed to implement the 2002 Agreements as soon as reasonably possible The 2002 OPSEU settlement was qUite different from the previOUS two settlements m that it entailed a large number of changes and reViSiOns, many of which reqUired detailed and complex systems solutiOns As I noted m the mtenm relief decisiOn, it is entirely understandable that the Umon and itS members would want to obtam the monetary benefits of the settlement before October 10 2002, particularly after a long stnke However the eVidence before me establishes that the final implementatiOn of the 2002 Agreements by October 10 2002, was not unreasonable For the foregomg reasons, I find that the Employer did not contravene Article 3 of the Memoranda of Settlement dated May 2, 2002 The Umon's gnevance dated June 27 2002, is hereby dismissed. Dated at Toronto thiS 25th day of March 2004 ~he~ - Vice