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HomeMy WebLinkAbout2006-2241.Union.08-01-28 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-2241 UNION# 2006-0369-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Felicity D. Briggs FOR THE UNION Peter Shklanka Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Lucy Neal Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING October 25, 2007. 2 Decision As of November 1, 2001, The Government of Ontario contracted Management and Training Corporation Canada (?MTCC?) to operate a new correctional facility in Penetanguishene, Central North Correctional Centre (?CNCC?) for a period of five years. MTCC employed the majority of employees working at the jail. However, it did sub-contract out some of the work, such as nursing services to First Corrections Medical (?FCM?). When the Provincial government decided to transfer the operation of CNCC to the Ontario Public Service (?OPS?) in November of 2006 the parties negotiated a Memorandum of Agreement (?Transfer Agreement?) dated September 18, 2006 regarding the transfer of staff from MTCC to the OPS. In that document the parties agreed to a dispute resolution mechanism for mediation- arbitration. As a result of that provision I was asked to assist the parties with the few remaining disputes arising from the repatriation of CNCC into the Ontario Public Service. The parties were successful at mediating some of the issues. However, there remain a few outstanding matters. At our recent day of mediation/arbitration the parties agreed to pose a series of questions for this Board to answer. The questions were put before the Board in the absence of individual grievances for purposes of efficiency. Further, the parties agreed that all disputes that are similar in fact to the following situations would be applied to all individual grievances. The matters in dispute concerned appropriate pregnancy and parental leave entitlements at the time of the transfer of operations. There were a number of individuals who were on pregnancy or parental leave and in receipt of salary top-up on the day that the operation of the jail transferred from MTCC to the OPS. On the day of the transfer, each of these employees had already taken some period of leave with top up in accordance with the provisions of the 3 MTCC Collective Agreement. It was the Union?s contention that once those employees became members of the OPSEU bargaining unit they were entitled to begin afresh the period of the pregnancy or parental leave set out at Articles 50 and 51 of the Collective Agreement. It was the Employer?s view that these employees are entitled to a leave that is not greater than the leave entitlement set out in the Collective Agreement between these parties. It should be noted that the period of leave with salary top up is longer in the Collective Agreement between these parties than the period of leave contained in the MTCC Collective Agreement. After consideration, I must agree with the Employer. There is no rationale for these employees who happened to be on pregnancy or parental leave at the time of the transfer to receive a greater leave with top up than any other individual in the OPS. Further, there is nothing in the Transfer Agreement regarding the transfer of employment that would lead me to make such a finding. Therefore, the individuals at issue should receive, in total, a period of leave no greater than that set out in Articles 50 and 51 of the Collective Agreement. A number of individual grievances have been filed regarding the issue of appropriate Continuous Service Date. Prior to the opening of CNCC there were some OPS employees at various institutions surplussed and they elected to exercise their rights under Appendix 18 of the OPSEU Collective Agreement. Accordingly, they received various entitlements including enhanced severance and commenced employment with MTCC. Now that the operation of the facility is back within the OPS, these employees claim that they ought to be able to return their enhanced severance and have their employment status reflect no break in service from their original date of hire into the OPS. 4 After considering the submissions of the parties I am of the view that these grievances must be denied. Simply put, there is nothing in the OPSEU Collective Agreement or the Transfer Agreement that would allow these employees to return their enhanced severance and receive seniority earned prior to their termination of employment with the OPS. Another group of employees who were surplussed from various OPS correctional facilities before CNCC opened in 2001 exercised their rights under Article 20 of the applicable OPSEU Collective Agreement. They now claim that if they return to the OPS within a two year period they can return their termination pay and in doing so will be entitled to whatever seniority they earned with the OPS prior to their termination of employment and it will be credited toward their Continuous Service Date. Again, there is nothing in the Transfer Agreement or the OPSEU Collective Agreement that would provide these grievors with this right. There may be entitlement if there was an employee who had been surplussed under Article 20 and left the OPS within the 24 months directly before the transition date. A final group of employees resigned their employment at various OPS correctional facilities and found work with MTCC between 2001 and November of 2006 as a result of their own individual efforts. These grievors are of the view that, now that the OPS has taken control of CNCC their employment status should be bridged as if they had never left the OPS with the result of a change to their Continuous Service Date. I disagree. There are no such bridging rights for these employees. 5 For all these reasons, the grievances are denied. th Dated in Toronto this 28 day of January, 2008. Felicity D. Briggs Vice-Chair