ONTARIO
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT BOARD
EMPLOYES DE LA COURONNE DE L'ONTARIO
COMMISSION DE REGLEMENT DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACSIMILE/TELECOPIE: (416) 326-1396
BETWEEN
GSB # 2294/96
OPSEU # 960142
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance)
- and -
The Crown in Right of ontario
(Management Board Secretariat)
Grievor
Employer
BEFORE
FOR THE GRIEVOR
FOR THE EMPLOYER
HEARING
w. Kaplan Vice-Chairperson
G. Leeb
Grievance Officer
Ontario Public Service Employees Union
E.- Johnson
Employee Relations Officer
Management Board Secretariat
January 20, 1997
2
Introduction
As is well-known, the Government of Ontario, the employer in this case, has embarked on a privatization initiative. In November 1996, the decision was reached to substantially increase the purchase of translation from outside suppliers. A Request for Proposals was developed and translators currently employed in the Ontario Public Service were invited to bid to supply translation services. A November 1996 government memorandum provides, in part:
Employees will be allowed the opportunity to bid to supply these translation services on the same basis as other suppliers,providing they do not have a conflict of interest or unfair advantage gained through employment. If an employee is a successfulbidder, the employee must
resign from the Ontario Public Service on or before the commencement of the contract.
Since the employee must resign to take the contract, the employee is not entitled to the surplus provisions including enhanced severance. The employee will receive normal legislated severance.
On November 27, 1996, a grievance was filed taking issue with the policy set out above and alleging a violation of Article 24 and Appendix 14 of the collective agreement. On January 20, 1997, that grievance proceeded to a hearing in Toronto. At the request of the parties, I issued a verbal decision at the conclusion of the case. Written reasons were promised, and the following award sets out the background of the case, the evidence heard, the arguments of the parties and my reasons for decision.
Before turning to the evidence and arguments, it is useful to set out a number of the uncontested facts. Approximately twenty-eight employees are affected by this privatization initiative. To date, none of these employees have bid for the translation work. Acceptance of a bid does not
guarantee any work; all that it does is result in the placement of the individuals name on a roster which provides the hope, but absolutely no guarantees, of future contract employment. Initially, bids were to be made
by 3:00p.m. on January 23, 1997. That date has been subsequently extended by one week.
Union Submissions
In the union's submission, the employer's policy was unreasonable and was directly contrary to the terms of the collective agreement, most
particularly Article 24 and Appendix 14. Mr. Leeb noted that section 1(a) of Appendix 14 required the employer to make reasonable efforts to assist employees in securing employment when work was privatized. Directing employees to resign upon submission of an accepted bid that guaranteed no work was hardly, in the union's submission, a reasonable effort. Moreover, Mr. Leeb noted, paragraph 5 of Appendix 14 provided employees with the opportunity to bid or tender on the same basis as non-employees. The
effect of the employer's policy, however, was to put employees in a particularly disadvantageous position than non-employees by foisting upon them the requirement that they resign and lose important benefits in the collective agreement that had been negotiated on their behalf.
Not only was the employer's policy, in practice, an unreasonable one, it was also, in the union's view, directly contrary to the stated purpose of
Appendix 14 which was to assist employees in finding new work when their jobs were lost. The purpose of the provision was not, Mr. Leeb argued, to deprive employees of the benefits of the collective agreement most notably the severance and enhanced severance provisions.
Referring to the evidence of Ms. Eleanor Paul, one of the translators affected by the policy, Mr. Leeb argued that the Board should, in the exercise of its remedial powers, not only declare that the policy was of no force and effect, but should also extend the timelines for the submissions of bids. Mr. Leeb argued that until the merits of this matter had been addressed, none of the affected employees were in a position to submit a bid given the extremely negative consequences of doing so. Mr. Leeb concluded by asking me to remain seized with respect to the implementation of my award.
Employer Submissions
In the employer's submission, the Board was without jurisdiction to rule on the employer's policy, a policy which Mr. Johnson asserted, the employer was entitled to promulgate pursuant to its management rights. In the event that I concluded that I did have the jurisdiction to hear this case, the employer took the position that there had been no collective agreement
breach. Mr. Johnson argued that it made sense that an employee would have to resign his or her employment in order to take another job. Nothing in the collective agreement, Mr. Johnson observed, precluded the employer from requiring the resignation of an employee who decided to bid on government work. It was also arguable, to say the least, that in bidding for the work at issue, and in having a bid accepted, an employee was, in effect being transferred to another employer. The result of such a transfer, pursuant to section 1(a) of Appendix 14, was the loss of any collective agreement
rights other than severance pay. It may be true, the employer pointed out, that an affected employee was denied certain benefits by this policy, for example, enhanced severance. But it was equally true that the employee
gained something; namely the opportunity to provide services to the employer on a contractual basis. In that way, the purpose of Appendix 14
-assisting employees in gaining employment- was being given effect. For all these reasons and others, Mr. Johnson asked me to uphold the government's policy and to dismiss the grievance.
Union Reply
In reply, Mr. Leeb took the position that the promulgation of the policy requiring the resignation of successful bidders was nothing more than a tactic designed to preclude employees from enjoying their collective agreement rights. And, he argued, it was simply unfair to require employees to resign their jobs, and lose their benefits simply for the opportunity to have their names placed on a list of people who may or may not be offered government work. That, he submitted, was not what Appendix 14 was all about and that, he pointed out, was not the usual practice in other ministries where work was being contracted out. He
concluded his submissions by again asking me to find the policy in violation of the collective agreement, and by urging me to extend the deadline for the submission of bids in order to give the affected employees a real opportunity, assuming that the policy would be struck down, of submitting a bid.
Decision
At the conclusion of the hearing I advised the parties that the grievance was allowed. In particular, I found that the policy was in breach of Article
24 and Appendix 14 and, in the exercise of the Board's remedial powers, I
extended the deadline to February 14, 1997 for the submission of bids.
In my view, the policy violates the collective agreement for a number of reasons. First of all, the employer, in Appendix 14, makes it very clear that its restructuring initiatives could have a significant effect on employees, many of whom have served for a lengthy period. As a result of this recognition, the employer committed itself to making reasonable efforts to ensure that where there is a disposition or transfer of bargaining unit functions that employees in the bargaining unit obtain employment In this case, the most direct effect of the contested policy is not to assist the employees in obtaining employment but to deprive them of the rights provided for in the collective agreement that have been negotiated on their behalf. This, surely, cannot constitute a "reasonable effort." And this
reason alone would have been a sufficient one for finding for the union.
There are a number of other reasons, however, for doing so. The result of the policy is to place employees in a disadvantaged position as compared to individuals outside of government who bid for the work. Government employees whose bids are accepted lose their jobs, with none of the
benefits of surplused employees. Individuals from outside the public service whose bids are accepted do not lose their jobs. In this way, government employees are being treated differently, a violation I find of section 5 of Appendix 14.
A few other points are in order. The Board obviously has jurisdiction in a case of this kind as it directly involves the interpretation of the provisions
of the collective agreement That being said, I simply cannot accede to the employer's suggestion that successful bidders have obtained employment
and should by operation of Appendix 14 be deemed to have resigned. All that they have obtained is the right to be considered for work, and that is hardly
a transfer to a new employer. Whether the employer has the right by promulgation of policy to insist on the resignation of employees, as the employer suggested in its submissions, is a matter that need not be addressed in this award.
Accordingly, and for the foregoing reasons, the grievance is upheld. I find the policy set out above to be in conflict with the collective agreement and I so declare. I also. in the exercise of the Board's broad remedial powers, extend the deadline for the submission of bids to February 14, 1997. remain seized with the implementation of this award.
DATED at Toronto this 28th day of January 1997.
t William Kaplan Vice-Chairperson