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HomeMy WebLinkAbout2002-1479.Policy Grievance and Lysiak.03-07-10 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#1479/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ProfessIOnal EngIneers, Government of Ontano (PolIcy Gnevance & LysIak) Grievor - and - The Crown In RIght of Ontano (Mimstry of MumcIpal MfaIrs and HOUSIng) Employer BEFORE Manlyn A. Nairn Vice-Chair FOR THE UNION Larry RobbIns Labour Consultant FOR THE EMPLOYER DavId Strang Counsel Management Board Secretanat HEARING May 27 & 28 2003 2 AWARD Further to an Intenm award Issued on February 11 2003 these matters reconvened. That Intenm award had concluded that the employer was subJect to the reasonable efforts oblIgatIOn set out In paragraph 1 of AppendIx "A" to the collectIve agreement between the ProfessIOnal EngIneers, Government of Ontano ("PEGO") and the Crown (the "employer") FIve members of PEGO were employed across the proVInce In posItIOns related to socIal hOUSIng. Three members of PEGO receIved surplus notIces and remedIes are beIng sought on behalf of two of those IndIVIduals These engIneers were employed at the Mimstry of MumcIpal Affairs and HOUSIng, performIng work for the benefit of the former Ontano HOUSIng CorporatIOn. Mr LysIak was employed by the Mimstry as a MechamcallElectncal EngIneer for the Ontano HOUSIng CorporatIOn Support Branch. Mr Levesque was employed as a Mechamcal EngIneer In the Mimstry's Toronto RegIOnal Office They receIved surplus notIces on June 27 2002 The gnevances arose from the employer's decIsIOn to dIvest Itself of socIal hOUSIng functIOns and to transfer those functIOns to mumcIpalItIes and regIOnal local governments across Ontano The PEGO members were not offered employment wIth a new employer and the umon asserts that the employer faIled In ItS oblIgatIOn to make reasonable efforts to ensure contInuIng employment. The relevant provIsIOn of the collectIve agreement provIdes APPENDIX A. EMPLOYMENT STABILITY The Government of Ontario is aware that its restructuring initiatives over the next three years could have a significant effect on employees, some of whom have served for a lengthy period. Accordingly the Employer undertakes the following: I The Employer will make reasonable efforts to ensure that, where there is a disposition or any other transfer of bargaining unit functions or jobs to the private or broader public sector, employees in the bargaining unit are offered positions with the new employer on terms and conditions that are as close as possible to the then existing terms and conditions of employment of the employees in the bargaining unit, and, where less than the full complement of employees is offered positions, to ensure that offers are made on the basis of seniority The employer filed two volumes of documents concernIng ItS reasonable efforts to whIch the umon dId not obJect. The dIvestment of socIal hOUSIng functIOns dId not take place pursuant to a request for proposal or tender process The transfer occurred by operatIOn of law 3 pursuant to the provIsIOns of the Social Housing Reform Act, 2000 SO 2000 c.27 whIch statute was enacted In December 2000 The statute was drafted specIfically to deal wIth the magmtude of Issues ansIng from the complex transfer from the Ontano HOUSIng CorporatIOn and the Crown, (includIng as represented by the Mimster of MumcIpal MfaIrs and the Mimster of HOUSIng) to vanous local authontIes, of the real estate and other assets and the lIabIlItIes and other responsIbIlItIes assocIated wIth provIdIng and maIntaInIng socIal hOUSIng. SectIOn 34(1) of the legIslatIOn provIdes authonty to the LIeutenant Governor In CouncIl to make "transfer orders" "transferrIng employees of a local hOUSIng authonty" to a new employer referred to In the legIslatIOn as a "servIce manager" There were forty-seven servIce managers created as a result of the overall provIncial transfer of socIal hOUSIng functIOns ApproxImately thIrty percent of the total volume of the socIal hOUSIng portfolIo devolved to the CIty of Toronto as the largest servIce manager The SocIal HOUSIng ServIces CorporatIOn ("SHSC") was also created by regulatIOn under the Social Housing Reform Act, 2000 as a non-share capItal corporatIOn. Its role IS to provIde centralIzed servIces to the servIce managers That regulatIOn was pnnted In the Ontano Gazette on February 9 2002 Ms LIsa Alfien testIfied on behalf of the employer Ms Alfien was the Labour RelatIOns/Human Resources SpecIalIst assIgned to deal wIth the reasonable efforts oblIgatIOn for the Central Ontano and MetropolItan Toronto RegIOns She also had responsIbIlIty for Head Office functIOns whIch Included the OHC Support Branch where Mr LysIak was employed. Overall Ms Alfien was responsIble for approxImately 45 Mimstry employees affected by the transfer of socIal hOUSIng functIOns These Included members of OPSEU and AMAPCEO as well as the small percentage of PEGO members Five regIOns In the proVInce had a Labour RelatIOns/Human Resources SpecIalIst assIgned to deal wIth the reasonable efforts oblIgatIOn. Both gnevors fell wIthIn Ms Alfien' s areas of responsIbIlIty Ms Alfien was hIred In the summer of 2000 and began meetIng wIth servIce managers In the fall of 2000 The government made ItS announcement about the transfer of socIal hOUSIng In October 2000 and the legIslatIOn passed In December 2000 The Area TransItIOn Team Included Ms Alfien and three others The team began meetIng wIth each servIce manager dunng whIch Ms Alfien outlIned her role, the Mimstry's oblIgatIOns In respect of the 4 reasonable efforts commItment, and what she was lookIng for In a JOInt local transfer plan ("JL TP") wIth respect to the transItIOn of employees and Job offers A JL TP was reqUIred by the legIslatIOn to be sIgned by both partIes In order to effect the transfer of socIal hOUSIng. The plan was to demonstrate the servIce manager's capacIty to receIve and conduct the busIness The reasonable efforts component was a part of the plan, as were other human resource Issues Ms Alfien provIded copIes of all collectIve agreements, related benefit InformatIOn and matenals, penSIOn reqUIrements, and Job descnptIOns of all affected employees, IncludIng PEGO members, to the vanous servIce managers She outlIned what would constItute a good offer and what the employer was lookIng for ThIS InfOrmatIOn was dIsclosed dunng the planmng stages In the hope that the servIce managers would have a better understandIng of the functIOns performed at the Mimstry and the skIlls avaIlable Once the servIce managers had IdentIfied how they planned to orgamze and operate the transferred busIness and had created orgamzatIOnal charts, Ms Alfien receIved those orgamzatIOnal charts and any Job descnptIOns for planned posItIOns In order to attempt to match them to any Job descnptIOn of the affected employees, IncludIng the PEGO members Some orgamzatIOns, partIcularly the CIty of Toronto had pre-exIstIng structures and were seekIng to absorb the work Into those operatIOns InformatIOn was sought from managers regardIng Job dutIes and a reVIew of Mimstry Job descnptIOns was conducted to ensure that they accurately and adequately reflected the work beIng performed by affected employees It IS fair to say that of the Job offers receIved that reflected work performed by Mimstry employees, few If any reflected terms and condItIOns of employment outlIned by the cntena In paragraph 1 of AppendIx A. That provIsIOn eXIsts In sImIlar If not IdentIcal terms In the OPSEU and AMAPCEO collectIve agreements Offers were lImIted In dIfferent ways, for example, In theIr recogmtIOn of semonty level of wages, and reqUIrements for IntervIews and/or probatIOnary penods If there was no match of Job functIOns, the team contInued to meet wIth servIce managers and Ms Alfien outlIned the expenence and qualIficatIOns of the persons affected and attempted to persuade the servIce managers to make use of that expenence Throughout thIS process, Ms Alfien offered dIfferent Ideas and InCentIves In an attempt to enhance offers or the feasIbIlIty of makIng offers to employees, IncludIng shanng of personnel wIth other servIce managers or creatIng part-tIme opportumtIes In that transfers 5 were staggered she offered that the Mimstry would provIde secondments of Mimstry personnel to servIce managers untIl the busIness transferred In order that the servIce manager could gaIn the benefit of theIr expenence, arguIng that the longer the servIce managers waited to use that expenence, the less lIkely It was to be avaIlable Whether attemptIng to pursue Job offers or seekIng to enhance offers made, the employer offered financIal InCentIves In amounts equal to enhanced severance payments Amounts were IdentIfied to the servIce managers reflectIng the entItlements of the affected employees In each case where no Job offers were made there was a careful reVIew of Job descnptIOns and specIficatIOns to ensure that there was sufficIent staff capacIty for the servIce manager to perform the busIness In addItIOn the Area TransItIOn Team sought agreement from servIce managers to contInue negotIatIOns regardIng Job offers up to the pOInt of the transfer of the busIness In order not to prematurely foreclose the opportumty for negotIatIOns The transItIOn teams tned to meet WIth each servIce manager approxImately once a month. The CIty of Toronto delayed a number of theIr meetIngs wIth the team for reasons to do wIth ItS workload. At a MERC meetIng on Apnl 27 2001 PEGO was provIded wIth an update of the reasonable efforts process and was asked to provIde feedback wIth respect to the protocol for the reasonable efforts Job offer process Mr LysIak was the umon's representatIve on that commIttee No eVIdence about any feedback was tendered. Other than that the partIes are agreed that PEGO was not consulted about the reasonable efforts process or advIsed of ItS progress Ms Alfien had no dIrect role In meetIng wIth PEGO She was asked for updates whIch she belIeved were beIng passed on to umon representatIves on a regular basIs Reference was made by the employer to other transItIOn actIvItIes or programs In addItIOn to ItS reasonable efforts actIvIty Although that Included certaIn transItIOn supports such as a hotlIne for employees to call wIth questIOns regardIng the busIness change, that actIvIty IS separate and apart from the reasonable efforts oblIgatIOn under paragraph 1 of AppendIx A of the collectIve agreement. Very early In the process, Ms Alfien was told by servIce managers that there was not enough engIneenng work to JustIfy the creatIOn of a full-tIme engIneenng posItIOn. 6 AlternatIvely she was told that the servIce manager had eXIstIng maIntenance and/or techmcal staffwho could absorb any addItIOnal work normally performed by PEGO members, or that the servIce manager tYPIcally contracted out engIneenng work on an as-needed basIs There was nothIng the employer could do to dIssuade the smaller servIce managers from thIS VIew regardless of InCentIves They were sImply not Interested. The only two areas In the proVInce where there was any real prospect of work for engIneers were wIth the CIty of Toronto or the SHSC It was antIcIpated that many of the functIOns beIng performed by the OHC Support Branch where Mr LysIak was employed would be phased out. Any employees remaInIng In the Support Branch as of December 31 2001 were gOIng to be surplused. The employer was aware of the possIbIlIty that certaIn resIdual functIOns mIght be transferred to the SHSC It however had not yet been created, never mInd IdentIfied ItS needs Two employees were transferred In the hope that they could be later matched to a SHSC Job One was an AMAPCEO member The other was Mr LysIak. GIven the possIbIlIty of an opportumty for further negotIatIOns, Mr LysIak was transferred to the SocIal HOUSIng Branch of the Mimstry Mr LysIak receIved notIce of that change In reportIng structure by letter dated December 18 2001 It IS perhaps clearer to then reVIew the Mimstry' s efforts wIth each of the CIty of Toronto (the "CIty") and the SHSC In May 2001 the JLTP for the CIty was completed. The IntroductIOn to that plan makes It clear that the CIty was not welcomIng the responsIbIlIty for addItIOnal socIal hOUSIng functIOns and that It felt that InSUfficIent funds were avaIlable to meet the program needs The CIty'S ImtIal and contInuIng posItIOn regardIng recruItment was that ItS hmng polIcIes must take precedence for both bargaInIng umt and non-bargaInIng umt posItIOns WhIle It acknowledged that the Mimstry had a reasonable efforts oblIgatIOn It asserted ItS oblIgatIOns under ItS own collectIve agreements and polIcIes As of May 2001 the CIty provIded what was referred to as a "functIOnal" orgamzatIOnal chart. The actual transfer was not due to occur untIl May 2002 As of May 2001 It had not yet created posItIOn descnptIOns although It had determIned the number of antIcIpated staff and the 7 broad areas of functIOn. In response to reCeIVIng the CIty'S JLTP Ms Alfien wrote to the ProJect Manager representIng the CIty on May 18 2001 reIteratIng the Mimstry's posItIOn that It Intended to pursue Job offers for ItS employees and that It appeared that 19 posItIOns were beIng created by the CIty as a result of the transfer of socIal hOUSIng. The partIes met on May 23 2001 Ms Alfien's goal was to pursue Job offers for the 19 IdentIfied posItIOns The CIty'S posItIOn at that tIme and throughout was that It Intended to use ItS Internal postIng provIsIOns to fill both umon and non-umon posItIOns At vanous meetIngs the Mimstry representatIves requested Job descnptIOns and other documents to reVIew the CIty'S plans They requested and dId meet wIth the CIty'S human resources staff In order to better understand the CIty'S polICIes and collectIve agreement oblIgatIOns As of June 2001 the Mimstry had not receIved any Job offers from the CIty A Memorandum of UnderstandIng was sIgned by the CIty and the Mimstry on June 25 2001 whereIn the partIes agreed to contInue the reasonable efforts negotIatIOns untIl June 30 2002 It references and Includes the Mimstry's oblIgatIOn to affected employees, IncludIng PEGO members It does lIttle else other than to cIte the partIes' respectIve goals The Mimstry's goal was to obtaIn Job offers for ItS employees It IS apparent that the CIty'S goal was to staff the addItIOnal work pursuant to ItS Internal, eXIstIng oblIgatIOns A proposed agenda created by Ms Alfien and dated September 25 2001 sets out the dIfficultIes the Mimstry was havIng In aChIeVIng any success In ItS reasonable efforts negotIatIOns WIth the CIty and outlInes suggested negotIatIng strategIes for attemptIng to achIeve Job offers The CIty cancelled meetIngs scheduled for both September and October In mId-October 2001 the Mimstry receIved a copy of a Job specIficatIOn for the SocIal HOUSIng Consultant posItIOn The CIty sImultaneously proceeded wIth ItS Internal postIng process In order to fill the vacanCIes It represented 8 of the proposed 19 avaIlable posItIOns at the CIty It also agreed to meet wIth the Mimstry to dISCUSS a protocol were the posItIOns not all filled Internally The partIes met agaIn on October 23 2001 In order to attempt to obtaIn Job offers the Mimstry agaIn offered the possIbIlIty of USIng enhanced severance The Mimstry argued that the posItIOn matched ItS eXIstIng HOUSIng AdmInIstrator posItIOn (an AMAPCEO posItIOn) and 8 that the CIty could make good use of the skIlls of the Mimstry's employees The CIty noted that due to the mumcIpal amalgamatIOn and resultIng harmomzatIOn Issues, It would take longer before It could respond to the Mimstry reassertIng Its posItIOn that ItS Internal process was to proceed first. That process Included a second tIer In whIch applIcants from the CIty'S "specIal purpose bodIes" were consIdered. The CIty maIntaIned ItS posItIOn that Job offers would not be made untIl an external postIng process had been conducted. Eventually the Mimstry was able to persuade the CIty to consIder Mimstry employees at the same stage as employees from "specIal purpose bodIes" effectIvely treatIng Mimstry candIdates as second tIer CIty employees for purposes of Job competItIOn. At no tIme was the CIty prepared to make Job offers dIrectly to Mimstry employees regardless of skIlls or Job descnptIOn. The postIng process for the SocIal HOUSIng Consultant posItIOn was conducted In November 2001 The Mimstry agaIn made offers of enhanced severance dunng that process The same process occurred In respect of the posItIOn of SupervIsor TraInIng and Commumty LiaISOn and a FInanCIal Systems Analyst posItIOn. Dunng thIS penod the Mimstry contInued to pursue meetIngs wIth the CIty The next meetIng was January 22, 2002 The CIty was stIll evaluatIng ItS needs wIth respect to techmcal servIces There had been no suggestIOn that the CIty was contemplatIng any kInd of engIneenng posItIOn. By February 2002 the techmcal posItIOn had been IdentIfied to the extent of describIng It as a Human Resources posItIOn, to manage staff and oversee Requests for Proposals ("RFPs") In Apnl 2002 that posItIOn was IdentIfied as "Asset Management Consultant, SocIal HOUSIng" Ms Alfien had the posItIOn descnptIOn revIewed. Mr Horn, Techmcal ServIces Manager Metro RegIOnal Office, responded on Apnl 22, 2002 adVISIng that he dId not belIeve the Job to be subJect to reasonable efforts as It dId not reflect any eXIstIng Mimstry posItIOn Some of the dutIes were outsIde the scope of regIOnal techmcal staff and It Included sIgmficant other dutIes such as managenal/supervIsory dutIes and proJect management servIces However he descnbed It as a "good opportumty" and recommended that the posItIOn be brought to the attentIOn of techmcal staff when It was to be posted Ms Alfien testIfied that In her VIew reasonable efforts was not separate from the total effort to provIde opportumtIes to qualIfied staff where opemngs were thought relevant to theIr backgrounds On Apnl 22, 2002 she recommended to Mr 9 Johnson, her supervIsor that when the CIty'S postIng was ready It should be shared wIth "the techIes" Ms Alfien moved to a dIfferent posItIOn on May 18 2002 and left her role on the Area TransItIOn Team. On May 22, 2002, the Mimstry was notIfied of the postIng. On May 24 2002 Mr Johnson asked Mr Horn If he could say that the Asset Management Consultant posItIOn more accurately reflected the Mimstry's MaIntenance/ConstructIOn Inspector's posItIOn (an OPSEU posItIOn) than any other posItIOn at HOUSIng. He specIfically IdentIfied engIneenng. Ms Alfien testIfied that Mr Horn concluded that the Job was closer to the MaIntenance/ConstructIOn Inspector'sJob However a reVIew ofMr Horn's response to Mr Johnson does not specIfically draw that conclusIOn. Mr Horn's response was "I don't have a sImple answer" He revIewed dIfferent tasks and noted that the engIneenng qualIficatIOn had been removed from the Job specIficatIOn but drew no conclusIOn. He summanzed that the CIty Job encompassed an "exceptIOnally broad rangIng Job scope" On May 22, 2002 a memo from Mr Horn had been sent to those members of hIS staff who would fall wIthIn a descnptIOn of techmcal staff, adVISIng them of the opportumty to apply for the Asset Management Consultant posItIOn. Although a draft posItIOn descnptIOn had Included a reference to a professIOnal engIneenng qualIficatIOn, the final posItIOn descnptIOn dId not. However Mr Horn saw fit to Include Mr Levesque as a recIpIent of that memo Mr LysIak was not sent that memo as he was not employed by that office OPSEU was also advIsed of the opportumty PEGO was not. Mr LysIak dId not otherwIse learn of the opportumty The Mimstry began dIscussIOns wIth the SHSC In or around March 2002 Pnor to that tIme some planmng was done based on antIcIpated movement of resIdual functIOns and tryIng to match those wIth eXIstIng Mimstry Job specIficatIOns Ms Alfien and her team approached the negotIatIOns WIth the SHSC as wIth the servIce managers She provIded the SHSC wIth copIes of relevant documentatIOn IncludIng Job descnptIOns of affected Mimstry employees UnlIke the CIty the SHSC was more open to the Idea of consIdenng Mimstry personnel At a meetIng on March 11 2002 Ms Alfien was able to confirm the agreement of the SHSC's spokesperson (subJect to Board approval) to look at all vulnerable Mimstry staff, reasonable efforts oblIgatIOn or not, pnor to proceedIng to any competItIve process to fill posItIOns She 10 also receIved an orgamzatIOnal chart and five proposed Job descnptIOns Ms Alfien had those Job descnptIOns revIewed In companson to Mimstry work beIng performed by affected employees Most of those Job descnptIOns dId not reflect a Job beIng performed by Mimstry employees As a result no Job match was found except for a Board AdmInIstrator posItIOn. However the Mimstry IdentIfied SIX employees who performed vanous IdentIfied dutIes of the FInanCIal Analyst posItIOn, IncludIng Mr LysIak who had been engaged In bulk natural gas purchasIng. Ms Alfien was also told that of those employees It appeared that Mr LysIak was the only employee who was subJect to a reasonable efforts oblIgatIOn. In response to her InqUIres as to whether or not the Job descnptIOns accurately reflected the manner In whIch SHSC Intended to perform the dutIes and specIfically whether ItS Job descnptIOns properly captured those dutIes, Ms Alfien receIved three revIsed Job descnptIOns from the SHSC In May 2002, IncludIng the FInanCIal Analyst Job descnptIOn. She asked Mr Farley a DIrector to further reVIew the posItIOn descnptIOns In order to determIne whether anyone performed any of the functIOns descnbed even If not Included In that person's Mimstry Job descnptIOn. She was lookIng for any overlap In functIOn. She also requested that If more than one person performed a functIOn to IdentIfy who performed the greater percentage He responded and IdentIfied that no sIngle IndIVIdual performed all the dutIes outlIned In the FInanCIal Analyst Job specIficatIOn. He referred to five of the SIX persons IdentIfied earlIer He commented on Mr LysIak's role In bulk gas purchasIng. He noted that two other employees had no accountIng or budgetIng skIlls and that a number of the IdentIfied functIOns were not beIng performed by any of these employees The employer concluded that the bulk purchasIng component of the FInanCIal Analyst posItIOn was a small component of the Job and that the core work of the Job related to financIal analysIs of program delIvery Insurance analysIs, financIal management systems and the lIke areas In whIch Mr LysIak was belIeved to have no expenence or expertIse In late May 2002 Mr Johnson commumcated wIth an OPSEU representatIve regardIng the Board AdmInIstrator posItIOn and the FinancIal Analyst posItIOn. OPSEU took the posItIOn that both posItIOns represented opportumtIes rather than offers The Board AdmInIstrator posItIOn was matched to an eXIstIng Mimstry posItIOn but the terms of the offer lImIted any 11 recogmtIOn of semonty or servIce and It was not a permanent posItIOn. OPSEU treated the FInanCIal Analyst opemng as an opportumty rather than a Job offer because vanous dutIes of the posItIOn overlapped wIth functIOns found In dIfferent eXIstIng Mimstry posItIOns and because It too was not a permanent placement. OPSEU suggested that the FInanCIal Analyst posItIOn be posted on the Mimstry' s e-cruIter system On June 3 2002 Mr Johnson commumcated wIth the SHSC to advIse them of OPSEU's posItIOn that It would be fairer to post the FInanCIal Analyst posItIOn on the e-cruIter In order that anyone who was Interested could apply He further requested that the SHSC not staff the posItIOn pendIng the opportumty to post It and determIne If there was any response to the opportumty Mr Johnson asked the SHSC to confirm that It was not Interested In takIng advantage of financIal InCentIves Mr LysIak dId not receIve notIce of the posItIOn through the e-cruIter system PEGO was not Informed of the opportumty Although Mr Johnson apparently made further Inqumes to the SHSC regardIng the postIng of the FInanCIal Analyst posItIOn on June 13 2002, there was no eVIdence as to any response to that InqUIry WithIn a few weeks of the effectIve transfer to the SHSC the SHSC was oblIged to hIre a full-tIme employee responsIble for bulk gas purchasIng and to embark upon a tender process for a new gas broker and to reVIew the program and IdentIfy opportumtIes for Improved servIce and cost-recovery ThIS reflects work that Mr LysIak had performed. However the opportumty came after the transfer of the busIness and only as a result of lOSIng brokerage servIces whIch had been provIded by a SubsIdIary of Enron. The collapse of the brokerage servIces was unexpected and was unknown pnor to or at the tIme of the transfer of the busIness * * * The umon recogmzed that the employer has more abIlIty to procure Job offers for affected employees where the transfer anses through a tender or RFP process However the umon argued that the employer faIled to make sufficIent efforts to have the CIty bUY-In to the reasonable efforts oblIgatIOn, that It faIled to make appropnate use of financIal InCentIves, that It should have gone beyond enhanced severance amounts It suggested that the Interests of the PEGO members were not gIven adequate attentIOn as they compnsed only a small portIOn of the employees affected and that the employer faIled to make sufficIent efforts to have the new employers create engIneenng posItIOns The umon argued that there was a need for a gas 12 purchaser at the SHSC and that the employer faIled to use the FinancIal Analyst posItIOn descnptIOn as an opemng to find aJob for a PEGO member Nor was Mr LysIak advIsed of the FInanCIal Analyst posItIOn. SImIlarly WIth respect to the Asset Management Consultant posItIOn, the umon argued that managers were advIsed of the posItIOn WIth the understandIng that employees would be told, yet Mr LysIak was not. The umon also argued that the reasonable efforts oblIgatIOn went beyond the date of the transfer of the busIness The employer posed the questIOn as, on a balance of probabIlItIes was there somethIng that the employer ought reasonably to have done that would have generated a Job offer for a PEGO member? The employer argued that It attempted to achIeve sIgmficant conceSSIOns by negotIatIng as a group for all employees In the three affected bargaInIng umts The umon dId not suggest that It was Inappropnate for the employer to have a JOInt team It argued that wIthIn that team, one needed to make efforts specIfic to the members of thIS bargaInIng umt. The employer argued that thIS case was not about tryIng to Improve aJob It argued that thIS was a case where the employer dId not achIeve Job offers because engIneenng Jobs dId not eXIst In the new emploYIng entItIes The employer argued that the offer of financIal InCentIves dId not motIvate the new employers to create a Job It was not reCeIVIng Job offers to whIch It could assIgn a PEGO member The employer argued that It could not dIctate how the new employers were to conduct busIness The employer noted that the appropnate level of financIal InCentIves was In the order of 'avOIded costs' In thIS case enhanced severance amounts The employer noted that If Mr LysIak's functIOn at the tIme of the transfers was bulk gas purchasIng that would remove the mumcIpalItIes from the equatIOn as they were not performIng that functIOn. The employer argued that the reasonable efforts oblIgatIOn ends at the tIme of transfer because other entItlements flow from what remaInS once those efforts have concluded. The employer acknowledged that there may be an argument that It should pursue changes should It become aware of them pnor to the transfer but noted the need for finalIty and fairness to those who have made decIsIOns based on then current InfOrmatIOn as to theIr optIOns * * * 13 The approach to determInIng whether or not the employer has met the reasonable efforts oblIgatIOn has been reIterated In a number of decIsIOns It IS an obJectIve test. It does not mean "all efforts" or "efforts to the pOInt of undue hardshIp" It IS not "every effort" Efforts whIch could not reasonably be expected to advance the obJects contemplated by paragraph 1 are not 'reasonable efforts' that the employer IS oblIged to make What IS reasonable wIll depend on all of the CIrcumstances of each case The cases I was referred to InvolvIng transfers anSIng from a Request for Proposal or tender process are of assIstance only In respect of theIr general pnncIples That form of transfer ObvIOusly provIdes sIgmficantly greater control to the employer to ensure that employees enJoy consIderable employment secunty notwIthstandIng the transfer So In the Ministry of Transportation v OPSEU case (Kaplan, June 9 1997) when the employer revIewed the bIds and gave no credIt for a commItment to hIre employees, faIled to fully utIlIze saVIngs on enhanced severance costs, and restncted Itself from attemptIng to negotIate WIth the successful bIdder It was found to have faIled to make reasonable efforts In the absence of such a process the reasonable efforts oblIgatIOn remaInS sIgmficant and proactIve However results wIll also very much depend on the Interests and posItIOn of the transferee In the Ministry of Consumer and Commercial Relations v OP SEU case (Roberts, May 26 1998) It was determIned that the employer fell short of ItS reasonable efforts oblIgatIOns In that It faIled to pursue negotIatIOns regardIng semonty protectIOn. The employer accepted the Alcohol & GamIng Control CommIssIOn's posItIOn that semonty would only be recogmzed for vacatIOn and benefits and dId not attempt to pursue It further Thus the scope of the negotIatIOns was found wantIng. As well, the degree of effort In the negotIatIOns was also found lackIng as It related to semonty and attempts to achIeve 100% salary No financIal InCentIves had been offered and the Vice-Chair noted that both entItIes were creatures of the Crown. The case stands for the proposItIOn that the employer has an oblIgatIOn to contInue to attempt to bargaIn even In the face of obstacles In terms of competIng posItIOns of the Mimstry and the new employers thIS case more closely resembles the CIrcumstances In the MinistlY of Community and Social Services V 14 OPSEU case (Brown, August 4 1998) As the Vice-Chair there noted, "other than regulatory Instruments, persuaSIOn and financIal InCentIves are the only mechamsms avaIlable to the Mimstry" (page 14) That decIsIOn notes that reasonable efforts do not guarantee that equally favourable results wIll be achIeved for all employees I start from the premIse that the employer had no abIlIty to dIrect a new employer as to how to conduct ItS busIness These were arms-length transfers and, apart from satIsfYIng the reqUIrement that they be able to perform the busIness, there were few If any staffing restnctIOns on how that was to be accomplIshed. The umon suggested that the Mimster could have wIthheld approval of the JLTP If the new employer faIled to provIde Job offers or otherwIse reflect employment secunty for the affected employees Although the Mimster has the authonty to set cntena for a JL TP under the legIslatIOn the Mimster's recourse If that plan falls to meet the cntena IS to find a replacement servIce manager CertaInly as It related to the CIty of Toronto the downloadIng of socIal hOUSIng was not somethIng sought or desIred by the CIty Nor was the Mimster lIkely to be able to find a replacement servIce manager should the CIty not meet certaIn cntena Imposed by the Mimster In the result It was unlIkely that the Mimster was In any posItIOn to Impose oblIgatIOns on the CIty absent further legIslatIve InterventIOn. WhIle the legIslatIOn provIded for the makIng of transfer orders In relatIOn to employees of the Ontano HOUSIng CorporatIOn affected by the transfers, no such provIsIOn eXIsts In the legIslatIOn to deal wIth affected Mimstry employees In thIS case the employer put a team In place to deal wIth transItIOn Issues That Included Human Resources/Labour RelatIOns SpecIalIsts whose responsIbly It was to focus on the employer's reasonable efforts oblIgatIOn. The employer provIded the new employers wIth InformatIOn concermng the affected posItIOns and the terms and condItIOns of that employment. It acted to obtaIn orgamzatIOnal charts of the new employers to examIne them and to obtaIn Job specIficatIOns for the posItIOns represented In the orgamzatIOnal charts It examIned those Job specIficatIOns and fully revIewed the Job functIOns Involved In order to attempt to ensure that they reflected a capacIty on the part of the new employer to perform the busIness and to fulfill the dutIes contemplated. Throughout the process, whether seekIng to obtaIn Job offers or to enhance offers, It offered InCentIves, IncludIng part-tIme and/or shared servIce optIOns, financIal InCentIves, and secondment opportumtIes It dId not lImIt ItS opportumty to negotIate prematurely and transferred two employees, IncludIng one of the 15 gnevors, In the hope that subsequent negotIatIOns would produce a favourable outcome Even assumIng that enhanced severance payments dId not represent the aVOIded costs, on the eVIdence, there IS nothIng to suggest that the employer should have offered greater financIal InCentIves The new employers were not Interested. There was lIttle the employer could do In response to the smaller servIce managers who not surpnsIngly In the cIrcumstances, were sImply unable and unwIllIng to even consIder the creatIOn of an engIneenng posItIOn. It dId focus ItS efforts where It thought there was some lIkelIhood of success In ItS negotIatIOns WIth the CIty the employer was faced wIth solId resIstance to any prospect of Job offers It was not Interested In InCentIves It was concerned about ensunng that ItS Internal oblIgatIOns and polIcIes were met. The employer dId manage to negotIate the opportumty for Mimstry employees to be consIdered as second-tIer Internal candIdates WhIle not eVIdencIng a hIgh degree of success, the employer made dogged efforts to attempt to secure offers or opportumtIes for affected employees, IncludIng PEGO members Of relevance to PEGO members was the CIty'S posItIOn of Asset Management Consultant, SocIal HOUSIng. NotwIthstandIng Ms Alfien's recommendatIOn that the techmcal staff be notIfied of the opportumty and Mr Horn's memo dIrected to specIfic employees, IncludIng Mr Levesque, Mr Johnson dId not notIfy PEGO or Mr LysIak of that opportumty although OPSEU was notIfied. In negotIatIOns WIth the SHSC Ms Alfien pursued the same course as wIth the servIce managers and was agaIn dogged In her efforts to attempt to match the Job offers to the work of affected employees and to offer InCentIves Of Interest to PEGO members was the FInanCIal Analyst posItIOn The employer argued that the Job reflected functIOns and qualIficatIOns other than engIneenng. It represented a wIde cOmbInatIOn of functIOns The umon acknowledged that It was dIfficult to dIscern the bulk purchasIng component of the Job from readIng the Job specIficatIOn. However the employer dId elIcIt that InformatIOn. The employer was aware of SIX employees, IncludIng Mr LysIak, who performed some of the functIOns descnbed by the posItIOn. 16 Mr Johnson saw fit to share the Job offer wIth OPSEU and understood that OPSEU treated the posItIOn as an opportumty In that It dId not match wIth an eXIstIng Mimstry Job descnptIOn. The employer advanced OPSEU's suggestIOn to the SHSC that the posItIOn not be filled pendIng ItS postIng on the Mimstry e-crUIter system He also advIsed OPSEU that If anyone from the bargaInIng umt decIded to apply he antIcIpated further dIscussIOns between the Mimstry and SHSC at that tIme He dId not commumcate wIth PEGO concermng thIS opportumty I am not persuaded that the employer's reasonable efforts oblIgatIOn contInued after the transfer date so as to reqUIre It to respond to the hmng of a full-tIme gas purchaser a few weeks later There IS a need for finalIty and one would be hard-pressed to descnbe under what authonty the employer would have been able to affect the operatIOn of an arms-length entIty once It had transferred that operatIOn. However the employer dId suggest there would be further dIscussIOns wIth the SHSC should affected employees respond to the FInanCIal Analyst postIng. That Interest does not appear to have been commumcated to the SHSC These events occurred on the eve of the transfer and I have no eVIdence as to any outcome The employer posed the questIOn as, was there somethIng It ought reasonably to have done that would have generated a Job offer for a PEGO member It may be that the lIkelIhood of generatIng a Job offer for a PEGO member for eIther the Asset Management Consultant posItIOn or the FInanCIal Analyst posItIOn was slIm. At the CIty there was to be a competItIve process and It was not Interested In utIlIzIng financIal InCentIves Yet the employer saw fit to notIfy at least one PEGO member of the opportumty at the CIty and to notIfy OPSEU The employer also saw fit to consult wIth OPSEU regardIng the postIng of the SHSC FinancIal Analyst posItIOn. Other employees appear to have been no more partIcularly qualIfied for the FInanCIal Analyst posItIOn than Mr LysIak. The employer was aware that at least one PEGO member had skIlls and expenence reflected In the posItIOn descnptIOn, was also aware that of those wIth relevant expenence, hIS posItIOn was the only one lIkely to be surplus ed, and was unaware of whether other more qualIfied Mimstry employees mIght respond. There was no eVIdence from whIch to draw a conclusIOn that Mr LysIak ought not to have had the opportumty to reVIew and respond to thIS opportumty 17 Whether or not the employer has an oblIgatIOn to consult wIth the umon per se (compare Ministry of Transportation v OPSEU (Gray May 8 1997) and Ministry of Community and Social Services v OPSEU (Kaplan, June 2, 1997) ) It dId engage a process whereIn It contacted OPSEU for Input on Jobs that It knew could affect Its members and, more to the pOInt, In the case of both posItIOns relevant to PEGO advIsed OPSEU of opportumtIes that mIght be of Interest to ItS members It dId not do the same for PEGO although It was aware of affected PEGO members who mIght be sImIlarly Interested. The employer treated that advIce to OPSEU as part of ItS reasonable efforts oblIgatIOn. In the CIrcumstances I find that the employer faIled In ItS reasonable efforts oblIgatIOn and vIOlated the terms of paragraph 1 of AppendIx A of the collectIve agreement WIth PEGO by faIlIng to sImIlarly provIde that advIce to PEGO ThIS matter IS remItted to the partIes on the Issue of remedy I wIll remaIn seIzed should the partIes be unable to finally resolve thIS matter Dated at Toronto Ontano thIS 10th day of July 2003