OHT'AR/0
Cw:JWN EMPLOYEES
GRIEVANCE SETTLEMENT BOARD
EMPI.O'YSS DE LACOURDHNE
DEI.'ONTARIO
COMMISSION DE REGLEMENT DES GRIEFS
180 DUNDAS STREET WEST, SUfTE 2100, TORONTO ON MSG 1ZB TCLEPHONEtrELEPHONE: (41G) 325-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON} MSG 1ZB FACSfMtLEtTELECOPIE: (41tJ) 325-13
GSB # 2779/96, 141/97
OPSEU # 97UOOS, 97U056
BETWEEN
BEFORE FOR TRB
GRIEVOR
FOR TRE EMPLOYER
HEARING
IN 'l'HE MATTER OF AN ARBITRATJ:ON
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
'l'BE GRJ:EVANCE SETTLEMENT BOARD OPSEU (Union Grievance)
- and -
the crown in Riqht of ontario
(Ministry of Community & Social Services)
w. Kaplan Vice-Chair
G. Leeb
Grievance Officer
Ontario Public Service Employees Union
s. Patterson
Counsel
Legal Services Branch
Management Board Secretariat
May 26, 1997
Grievor
Employer
2
Introduction
On April16, 1997, a union grievance was filed alleging that:
...the Ministry has failed to comply with the Collective Agreement including but nat limited to Appendix 9,in respect to the transfer of bargaining unit functions from Rideau RegionalCentre, Huronia Regional Centre,Adult OccupationalCentre,Southwestern RegionalCentre and Midwestern Regional Centre.
As it happens. when this grievance was filed another and related grievance was already proceeding before the Board with respect to the closure of a facility called Prince Edward Heights (hereafter ..PEH"). Considerable evidence had been led in that case outlining the efforts made by the Ministry to comply with its reasonable efforts obligations in Appendix 9 of the collective agreement. That provision is as follows:
The Employer will make reasonable efforts to ensure that, where there is a disposition or other transfer of bargaining unit functions or jobs to the private or broader public sectors,employees in the bargaining unit are offered positions with the new employer on terms and conditions that are as cfose 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.When an employee has been transferred to a new employer he or she will be deemed to have resigned and no other provisions of the Collective Agreement will apply except for Article 53 or 78 (Termination Pay).
(b) Where the salary of the job offered by the new employer is less than eighty-five percent (85%) of the employee's current salary, or if the employee's service or seniority are not carried over to the new employer, the employee may decline the offer. In such a case, the employee may exercise the rights prescribed by Article 20 (Employment Stability)
and/or paragraphs 21a 5 of this Appendix. The employee must elect
whether or not to accept employment with the new employer within three
(3) days of receiving an offer.In default of an election, the employee shall be deemed to have accepted the offer.
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Like PEH, the facilities named in the grievance set out above provide residential and other services to adults with developmental handicaps. And like PEH, the government has announced that these facilities will be closed with the clients transferred to broader public service agencies in local communities.
It was agreed by the parties that the evidence about reasonable efforts already led in the PEH grievance would be the same in this case and, insofar as that evidence was concerned,. on this issue, it could be considered representative. Accordingly, it was decided, using this evidentiary
foundation, to directly proceed, in this case, to argument. Before setting out the positions of the parties,however, it is appropriate to briefly summarize that evidence.
The Evidence of Reasonable Efforts
The evidence with respect to reasonable efforts given in the PEH case is as follows:
Heather Wayte, a long-service employee with the Ministry of Community and Social Services working out of the Kingston Area Office, testified on behalf of the employer. As Administrative Manager, Ms. Wayte contracts with various transfer payment agencies who support developmentally disabled adults and children. From time to time, it is necessary to close a facility, transfer payment or otherwise, and the Ministry has developed a protocol to assist it in doing so. To make a somewhat long story short, a general service plan is developed for each affected individual under the general direction of a disinterested third party engaged under contract. The client, his or her parents, interested
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others, and employees responsible for the individual's care, are all consulted in an effort to determine the best possible placement. An appropriate agency or, in some cases, agencies, are then contacted and invited to submit a budget and plan for the care and support of the client. This process, generally speaking, has been followed in the closure of various facilities, and it was also the process which was followed for the closure of PEH.
With respect to the closure of PEH and, in particular, to Phase I of that closure, work began on the development of the general service plans in January 1997. {Steps had begun much earlier with respect to the closure of Hillier
Home and Fish Lake Farm; closures which were scheduled long before the complete closure of PEH was announced.)
The transfer payment agencies working in the Kingston area meet monthly at "focus group meetings," and in the fall of 1996, Ms. Wayte testified, a number of
discussions were held with these organizations with respect to them assuming responsibility for the care not only of residents in Hillier Home and Fish Lake Farm, but also PEH (in particular, residents of Wellington Home and Area D). In addition to discussing the transfer of clients, also raised for consideration was the hiring of PEH employees. Ms. Wayte was aware of managemenfs obligations under Appendix 9, and she outlined the steps she took to ensure compliance. It did not occur to Ms. Wayte to involve the local union in any of these discussions.
Ms. Wayte testified that she advised the various transfer payment agencies, at these focus group meetings and at other times, that they should consider hiring PEH employees. Not only were PEH employees experienced, in many cases they had developed productive working relationships with individuals in their care;
relationships that should, for the benefit of the client,
be fostered. Moreover, the decision was made to hold an information day at PEH, and this took place on January 9
& 10, 1997. The purpose of this event was to provide an opportunity for the transfer payment agencies to get to know PEH employees, and for PEH employees to become familiar with the transfer payment agencies. The event was not a job fair for, Ms. Wayte explained, the various transfer payment agenciest which she identified, had collective agreements specifying recruitment and job posting procedures. Those agencies made it clear to her that any hiring of PEH employees would have to be in conformity with existing collective agreements.
In addition to management sponsoring this information day, Ms. Wayte, on behalf of the employer, wrote the key transfer payment agencies in the area who would be receiving PEH clients. A representative example of one of her letters is as follows:
December 20,1996
Ms.Marilyn Lamb Executive Director Pathways to Independence
5-25 Dundas Street West Belleville,Ontario KBM3M7
Re: Prince Edward Heights Staff
Dear Marilyn:
The Kingston Area Office of MCSS will be contracting with your organization effective January 1,1997 to provide support to four former clients of Prince Edward Heights who have been living at Fish Lake Farm. Through the closure of the Fish Lake residence, some Prince Edward Heights staff will no longer have employment with the Ministry. At the same time, your organization may have need of additional staff in order to support the expansion in your services.
As you know, the Ministry is interested in pursuing employment opportunities for our staff. In addition, the Ministry has an obligation through our Collective Agreements with bargaining agents, where there is a disposition or any other transfer of functions or jobs to the private or broader public sector, to make reasonable efforts to have the selected service provider:
- offer employment to affected MCSS employees at terms and conditions
6
as close as possible to their current terms and conditions of employment,
and
- make job offers to affected MCSS staff In order of their seniority if the full complement of employees will not be offered employment.
1 would like to meet with a representative of the Board and you as soon as possible to explore these opportunities.
Thank you for your consideration of the employees from Prince Edward
Heights. Yours truly
Heather Wayte
Program Supervisor
Ms. Wayte followed up after sending this and other similar letters by arranging meetings with various executive directors and boards of directors at the relevant transfer payment agencies. At these meetings, and on other occasions as finalarrangements for the transfer of PEH clients in Phase I were being made, Ms.
Wayte informed the receiving transfer payment agencies
of the obligations PEH had on behalf of its staff and inquired whether PEH employees were being interviewed for vacant positions, and, if so, whether they were being hired. In addition, a document was developed setting out various speaking points or questions to be raised in discussions with receiving agencies. The purpose of this document is to ensure that the receiving agencies are informed of the employe,..s desire that they hire
displaced employees. Sample statements to that effect are as follows:
We would like you to hire the bargaining unit employees whose employment is being affected by the transfer of this/these client(s}
We would like you to offer them terms and conditions that are as close as possible to existing terms and conditions of employment.
If you do not make offers to all of the affected employees,we would like
you to make offers based on their seniority (highest seniority first}
Ministry staff were advised, if the answers to these questions was no, that they should inquire whether the receiving agency would be willing to hire Ministry employees on any other basis and, if so, to provide information about that to the Human Resource Manager of the facility concerned. Ms. Wayte testified that she has used this document as she has gone about making reasonable efforts to secure employment for PEH staff.
In fact, Ms. Wayte is of the view that her reasonable efforts obligations extend only to asking these questions and making the other inquiries described above. In her
view, the transfer payment agencies are not required to answer her questions; nor are they required to hire any PEH staff.
On February 4, 1997, a meeting was held with with the local union. Ms. Wayte described the various reasonable efforts that she had made and, in response to a question from the local union president, Carl Yates {who had requested the meeting), advised him that the Ministry
was not interested in increasing the number of transfer payment agencies as the area was already sufficiently served. Establishing new agencies would be problematic for a variety of reasons which Ms. Wayte explained. With respect to facilitating the hiring process at Kingston
area agencies, Ms. Wayte suggested that the local union
contact its counterparts and suggest the opening up of collective agreements so as to facilitate the employment of PEH employees. It was quite clear by this point, that the three transfer payment agencies who were to receive most of the PEH residents were not, to say the least,
giving any preference in hiring to PEH employees. It never occurred to Ms. Wayte to call a meeting with the transfer payment agencies and their bargaining units in order to discuss the placement of PEH employees. The relationship, she testified, was between the Ministry and the transfer payment agencies, not the Ministry and those bargaining units. Besides, the Ministry had never previously initiated discussions of this kind.
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By and large, the transfer payment agencies recruited for full-time positions from lists of on-call part-time employees. It was, accordingly, nece,ssary to acquire this status with one of the transfer payment agencies in
order to be eligible for a full-time position. A number of transfer payment agencies also informed Ms. Wayte that they did not offer salary and benefit packages equivalent to those enjoyed by PEH employees. The point was made that to do so, they would require additional funding from the Ministry. Ms. Wayte passed this observation on to her supervisor. Furthermore, the transfer payment agencies were not generally interested in hiring by seniority; they wanted to hire the "best" people.
According to Ms. Wayte, her reasonable efforts on behalf
of PEH employees began to have some unwanted effects. She reported in February 1997 that her efforts were
having a negative impact on the Ministry's positive relationship with the transfer payment agencies. Indeed, the agencies, Ms. Wayte wrote in a memorandum to her supervisor, were beginning to feel that if they did not
"hire PEH staff, there will be future repercussions from
the Ministry in this regard." David Morrow, Ms. Wayte's supervisor responded as follows:
There is no sanction if the agencies don't go along with our formal request per our obligation to ask for certain consideration for our MCSS staff as per Article 9.
T1 'I ..... " "'li;"lil"lo".ll';e..In edL•o undeJ rs\ •aII"dI•Ll '•"'at V•1•' .II,;;,'I"L'aY"e "Q'nl
are free to respond anyway they see fit.
"\Jb':Hg.,Q•L'ton •\ o ask - •li"iC''"::'Y
Ms. Wayte candidly acknowledged that no incentives were ever offered to the transfer payment agencies to hire
PEH staff other than the "positive feedback" she was
continually giving the transfer payment agencies about all of the PEH staff. Moreover, Ms. Wayte was of the view that the transfer payment agencies were interested in maintaining positive relations with the Ministry. However, that obviously did not extend to giving preference to PEH employees as was made clear by the
recruitment policies which those transfer payment agencies followed mandated, they advised her, by their collective agreement obligations. In one instance, it was made clear that a particular client benefited from a relationship with a PEH employee and the transfer payment agency hired that individual in order to ensure continuity of care. The Ministry, however, did nothing to assist in that process. Nor did it do anything with
respect to finding jobs for PEH employees with transfer payment agencies outside of the Kingston Area even though a significant number of PEH clients were transferred out of that area.
The Ministry's reasonable efforts were, as it turns out, conducted in something of a vacuum as Ms. Wayte and the senior administration at PEH did not learn which specific employees were to be surplused until shortly before the
surplusing in Phase 1 was to take effect in April1997. In
fact, individual PEH employees had no idea whether they were going to lose their jobs and whether they should be applying for the various part-time on-call and other positions which were being advertised. Ms. Wayte believed that her efforts should be most particularly directed to surplus employees, but as she did not know who the affected employees would be she could make no specific efforts to assist them. Ms. Wayte was also
aware that senior employees might face disproportionate difficulties in obtaining employment once surplused from PEH. However, no specific strategies were developed to deal with this. Certainly, the senior employees were not urged to apply for jobs as they arose; nor was this likelihood of diminishing employment opportunities brought to their attention in any formal way.
The Ministry has a reasonable efforts policy which states, in part:
The actual receipt of a surplus notlce is not the sole indicator that an employee is affected by a transfer or bargaining unit functions or jobs. In many cases of planned transfers, "reasonable efforts" discussions will begin before surplus notices are issued. However,in those cases, the
Ministry should be able to identity which employees would receive any surplus notices that result from the transfer of the bargaining functions or jobs involved.
Moreover, the MBS Guidelines on the Transfer of Employees with Their Jobor Function & Employee Bidding states, in part:
Negotiated Transfers to Established Broader Public Sector
Organizations and Existing Agencies
ln transferring programs to the Broader Public Sector or other existing public or not-for-profit organizations, the employer usually uses a process of negotiation rather than tendering. These principles would app!y equa!!y to any negotiated transfers to the private sector.
b) Transfer to established BPS Organizations,Schedule 2 or
3 agencies,or other Organizations
- Where the receiving organization needs additionalstaff, the use of the pool of affected OPS employees for recruitment purposes will be negotiated. The governmenrs obligation is to make "reasonable efforts" in negotiating employment of affected staff with the new host organization.
Ms. Wayte was aware of these policies and she described her discussions with the transfer payment agencies as a negotiation involving give and take. It was far from clear from her evidence, however, exactly what the Ministry
was getting in return. While there were no sanctions for
not hiring PEH employees. the relationship between the Ministry and the transfer payment agencies might, she suggested, have been damaged had no PEH employees been hired. Sanctions are only applied when the agencies fail
to meet established standards of care or fail to fulfil
their financial obligations. They are not imposed for failing to hire Ministry staff. Ms. Wayte described the relationship with the transfer payment agencies as a partnership and while the Ministry's "partners" were aware of the Ministry's desire that they hire PEH
employees, they wished to maintain their autonomy. A memorandum from Ms. Annette Chan, a Ministry employee, to Ms. Wayte's supervisor states, in part:
"From the outset a decision was made that the Facility
staff would be positively supported in the closure/downsizing initiative out of the Kingston Area Office. We understand clearly this is just a good will gesture, we know we cannot require the T.P agencies to hire staff...."
As it turns out, two of the three main transfer payment agencies receiving PEH clients in Phase I hired no PEH employees for full-time positions. With respect to
Phase II, Ms. Wayte stated, as the recruitment by the
transfer payment agencies is about to begin, that she
will "hopefully" have the names of employees scheduled for surplus so that she can make direct efforts on their behalf.
Finally, it is interesting to note that Ms. Wayte's evidence establishes that she made virtually all of the same efforts, described above, on behalf of the employees of a transfer payment agency that had been shut down by the Ministry where the Ministry had no reasonable efforts obligations. Indeed, there is evidence indicating that the Ministry went further with respect to this particular group of employees and obtained what was, in effect, a guarantee that the receiving transfer payment agencies would interview the affected employees. Ms. Wayte did not seek a similar guarantee for PEH employees as she assumed that they would be interviewed, although she also stated that given the
large numbers involved that it would not be practical for everyone to be interviewed. Ultimately, the focus of the Ministry's efforts was on the placement of PEH clients,
not PEH employees. Put another way, the evidence of Ms. Wayte makes clear that the placement of clients was the priority and, accordingly, came first. Reasonable
efforts, she testified, could not stand in the way of moving clients to transfer payment agencies.
Union Argument
In the union's submission, the evidence established that the employer had not made reasonable efforts to secure employment for PEH employees. Indeed, the evidence, in the union's view, demonstrated that the employer had made virtually no efforts, at least no efforts of any significance. What efforts it did make, Mr. Leeb argued, could hardly be called reasonable.
Referring to the evidence, the union took the position, simply put, that all that the employer did was send a letter, attend a few meetings and make some telephone calls. The various transfer payment agencies were asked if they would be interested in hiring PEH employees, but no negotiations with them ever took place; indeed, it was made clear to them that they could hire whomever they wanted. The transfer payment agencies were not even obligated to answer Ministry questions about their hiring plans.
To be sure, PEH held a job information day; what it did not do was use its enormous bargaining power, given that it was the funder for the transfer payment agencies, to actively encourage them to hire PEH employees. Moreover. the union argued that the evidence established, at the very least, that the Ministry made the same efforts on behalf of a group of employees where there was no reasonable efforts obligation as those it made for PEH employees. When faced with an obstacle, for example, the existence of unionized transfer payment agencies and the concomitant problems of integrating employees by seniority, identified by the transfer payment agencies as one of the main barriers to hiring PEH employees, the Ministry's response was to simply accept the situation, not deal with it in some
proactive way. Other examples, which counsel reviewed, confirmed that this was the Ministry's approach.
What was really remarkable about the evidence, in the union's submission, was that the employer purported to be making reasonable efforts on behalf of employees about to be surplused, but the members of management charged with this responsibility did not even know which individual employees would be receiving surplus notices until just days before those notices were scheduled to come into effect. Also indicating the complete failure of the employers approach, the union argued, was that management
was very well aware that senior employees, who should have been protected by Appendix 9, would actually be worse off by the manner in which the employer went about the closures because they would be the last ones left
at work and, as a result, would be least likely to be hired by the transfer payment agencies as their hiring processes arising out of the receipt of new clients would have already taken place. It was quite clear, at least to
the union, when all the evidence was collected, that the employer was going
through the motions, no more.
Indeed, when this case was compared with other cases, and some evidence was tendered with respect to the reasonable efforts made by the Ministry
of Agriculture and Food when hundreds of jobs were transferred to the
University of Guelph, it was clear how sorely lacking the Ministry's efforts really were. And in that regard, it was quite astonishing, the union suggested, that the employer did not bother to involve the union in any of its planning and only informed the union about those limited steps it was taking when it specifically requested some information. What was
required, in the union's view, was its involvement as soon as the divestment or closure decision was made • long before, in effect, specific employees were identified for surplus. Moreover, given that the evidence establishes how phasedi·n closures could detrimentally affect senior employees, it was necessary, the union suggested, for the parties to develop an overall framework or policy in order to anticipate and then prevent this result. It was also clear, the union suggested, that the Ministry needed a policy setting out its obligations in meeting the reasonable efforts requirements of the collective agieement.
The evidence also demonstrated, in the union's submission, the need for the employer, in negotiating the transfer of public servants, to provide some incentive to the transfer payment agencies. Given that Appendix 9 offered the employer the possibility of avoiding enhanced severance obligations if employees were placed in jobs that meet its terms, the amount of enhanced severance that would be saved was, the union suggested, the absolute minimum amount that could and should be used in the negotiation of placements for surplused public servants. Indeed, there would be occasions, Mr. Leeb observed, where the placement of an employee would save other costs. On those occasions the financial incentive could and should, the union believed, be increased to at least equal the saving realized by the government.
In conclusion, the union took the position that the evidence established a complete failure by management to meet its obligations under Appendix 9. This was, therefore, Mr. Leeb argued, an appropriate case for the Board to exercise its jurisdiction and direct a cessation of all further surplusing
until the government had complied with Appendix 9. It was neither right nor proper, in the union's view, to suggest that individuals detrimentally affected by a failure to make reasonable efforts could later, through a damages award, be made whole. The fact of the matter, in the union's view, was that the Ministry's lack of compliance with the provision had led and
was leading to great harm to individual employees who, but for this breach, might have been able to secure jobs in their communities. Because of this breach, that was not possible and an award of damages would not suffice.
Employer Argument
In the employer's submission, the proper basis for determining whether the employer had engaged in reasonable efforts as required by the collective agreement was to consider whether there was a logical connection between the actions it took and the obligations Appendix 9 imposed. In this case, counsel argued, the evidence demonstrated such a connection and that being the case, counsel argued that this grievance should be dismissed.
The fact of the matter, counsel argued, was that the employer did attempt to find jobs for the affected employees. A job information day was held.
The union's request for information was answered. Real efforts were made to ensure that the transfer payment agencies were kept fully informed
about the employees at PEH. Those transfer payment agencies were encouraged to hire those employees. Management wrote the transfer payment agencies, attended at meetings of their boards of directors, and followed up by telephone and otherwise in order to keep abreast of the status of their hiring decisions as clients were transferred out of PEH
These efforts were, counsel argued, by any measure, reasonable. There was
nothing in Appendix 9, counsel observed, that required the employer to offer financial incentives as part of its obligation. The employer's obligation
was to make reasonable efforts. The efforts in this case were rationally
connected to the employer's obligation. The employer had, in effect, done what it had agreed to do: make reasonable efforts to assist employees in finding jobs.
Reasonable efforts,counsel continued, were not "all efforts." They were not "every" effort." They were not successor rights. They were not efforts
to the point of undue hardship. The term did not mean that no stone should be left untumed.Giving effect to this clause did not impose on the employer the obligation of giving the union everything it asked, and more. None of this, counsel argued, is what the clause entailed. What was required was that the employer make efforts that were reasonable in the circumstances, and in this case, the efforts that were made, counsel submitted, more than met this test. The Ministry did try to get employees jobs, but, to give one
example, the transfer payment agencies had their own bargaining agents and
collective agreements, and as the receiving workplaces were unionized, the seniority of PEH employees could not be readily transferred. This affected managemenfs ability to secure for PEH employees BPS jobs. This did not mean, however, counsel argued, that what the employer did to assist the PEH employees was not reasonable. Placed properly in context, the employer took the position that its efforts were reasonable in this
particular case. For those reasons, the grievance should and must fail.
With respect to the various remedies requested by the union, the employer submitted, at the outset, that this is not a case that came close to
satisfying the legal requirements for what was in effect a request for an injunction prohibiting further facility closures or shutdowns, even
assuming for the sake of argument that the Board had the power to grant a remedy of that kind. First of all, there was simply no basis in the evidence to find that a failure to grant the request could lead to irreparable harm.
The employer was, counsel noted, explicitly entitled by the collective agreement and otherwise to close facilities. The only issue was whether it made reasonable efforts pursuant to Appendix 9 and if, for some reason, his argument on the merits was rejected, counsel took the position that the appropriate remedy was damages.
With respect to the various other remedies the union proposed, counsel suggested that rather than mandating the creation of some new committee structure to deal with divestments and closures, that any matters of this
kind should be referred to the ERCs, the establishment and running of which were already provided for in Article 16 of the collective agreement.
Insofar as it was considered appropriate to direct the parties to negotiate some framework arrangement for divestments and closures, the employer took the position that the timelines for the conclusion of such negotiations must be quite short as Ministry plans for the closure of facilities were
well under way.
Decision
Having carefully considered the evidence and arguments of the parties, I am of the view that the employer had not, as it is obligated to, made
reasonable efforts.
Little purpose would be served in these reasons for decision in providing an extensive review of the evidence. Suffice it to say that the evidence amply demonstrates that the efforts management made were de minimis, at best. Indeed, this conclusion is reinforced by that fact that there is evidence that the employer made the exact same efforts (if not more) for a group of employees to whom it owed no obligation whatsoever. By any measure, holding a job information day, writing letters, making telephone calls to
follow-up, and attending at meetings does not come close to complying with this provision of the coiiectlve agreement. These are the kinds of actions many employers would take absent a legal requirement that it do something proactive. Accordingly, Ican only conclude that this grievance must succeed and l so declare.
Having reached this conclusion and having made this declaration, this is an appropriate case, in my view. to set out a non exhaustive general list of some of the kinds of steps management should take in order to comply with Appendix 9, as well as direct some specific remedies to deal with the breach. Obviously, each case will differ and in each case the employer will have to carefully consider what it is about that case which is distinctive
and which therefore calls for a new or different approach. The fact is that the privatization program will be carried out in different ministries in different ways and the words reasonable efforts" must be interpreted in a way that makes sense.
Before turning to the specific relief being granted in this case, a number of general principles can be set out. First and foremost, as employer counsel argued, making reasonable efforts does not mean "every .. effort or "all
efforts." It means making efforts that are reasonable all things considered, and that wilt, given that this is a broadly worded clause of general application, depend on particular circumstances of individual cases.
Having said that, it is my view that the reasonable efforts obligation begins as soon as the decision to divest is made. It is not confined solely to employees who have been identified for surplus. It applies to all employees in a facility for, as this case demonstrates, it is obvious that the obligation cannot be applied piecemeal when an entire facility is being closed down and the work transferred to the BPS. Certainly, the obligation to make reasonable efforts does not arise only when specific employees are identified for surplus for that identification may take place at a time when
no reasonable efforts can be made. Moreover, as employees will be generally
surplused by seniority, divestment plans must take that into account and ensure, inasmuch as possible, that senior employees are not effectively deprived of the benefits of the provision.
Second, it is incumbent upon management to involve the union in discussions about how it proposes to meet its reasonable efforts obligations and to commence those discussions immediately following the
decision to divest. Obviously, these discussions cannot be pro forma. They
must be meaningful exchanges of relevant information and ideas directed at assisting the employer in discharging its obligations under the collective agreement. While employer counsel suggested, should a remedy of this kind be directed, that the discussions take place in the context of already established ERCs, it is my view, given the importance and singular nature of the reasonable efforts obligation, that meetings to discuss developments
and exchange information should be dedicated to this subject and not included on ERC agendas dealing with workplace issues much more generally.
Third,as the employers own policy with respect to transfers to the broader public service makes clear - as does this case - the employer must do more than simply inquire whether the receiving transfer payment agency is interested in hiring public servants. The transfer of work, the policy indicates, is a negotiated one. And negotiation means give and take, not a simple request without even the obligation - again this case - that
questions be answered.
The structure of Appendix 9 indicates, and this purpose does not appear to be fundamentally in dispute between the parties, that it was developed to create a financial incentive to the employer to place public servants in jobs that met certain terms with avoidance of enhanced severance costs, and possibly more, the benefit to the particular ministries. At a minimum-
and, obviously each case will differ - amounts up to avoided costs should be
used as an incentive to secure jobs for public servants, many of whom, Appendix 9 begins, "served for a lengthy period." It is quite conceivable that financial incentives could have been used to overcome some of the difficulties identified in this case that were said to make it difficult to
directly place PEH employees. The fact that the Ministry has not previously
had to enter into negotiations with a BPS transfer payment agency, and possibly its union, to give just one example of how it might give effect to this provision and its reasonable efforts obligation, does not mean that it should not do so if its efforts in doing so would, in all the circumstances,
be reasonable.
Fifth, in general, this type of case is not one that meets established legal tests for the granting of interlocutcry relief. However, it is imperative
that management keep careful records of its reasonable efforts and all surplus activity arising out of the disposition. These records will
determine whether entitlements were missed and the quantum of damages,
if any, that should flow in the result.
Turning now to this specific case, I make the following directions:
The Ministry is directed, in each of the facilities covered by this award, to hold bi-weekly meetings with the union to advise the union of its reasonable efforts and to enter into a dialogue with the union as to how to best meet its obligations. These meetings should commence immediately.
The Ministry and the union will meet forthwith in order to discuss how best to manage the closure of these facilities in light of the employer's obligations to make reasonable efforts and the requirement that employees be surplused on the basis of seniority. The parties may, if they wish, request from the Board the assistance of a mediator. Should the parties prove unable to agree on a framework within sixty days of the release of
this award, they may return to the Board on an expedited basis and jurisdiction is specifically retained to determine this issue.
- The Ministry is directed to negotiate with the transfer payment agencies the placement of public servants whose jobs will be lost as the
result of the facility closures and work transfers. These negotiations must include the offering of a financial incentive in accordance with the general principle set out earlier in this award.
- The Ministry is directed to keep careful records of all of its surplusing and divestment activities to date, and of all of its planned surplusing and divestment activities with respect to each of these facilities. The union is to be provided with copies of these records.
Finally, it should be noted that in this case I have found that the Ministry has failed to meet its obligations under Appendix 9, and have issued a declaration to that effect. Accordingly, the parties may schedule a hearing before any panel of the Board to deal with the question and quantum of damages to the union and to individual employees, if any, arising out of this breach.
DATED at Toronto this 2nd day of June 1997.
lA/./'--- .,
William Kaplan
Vice-Chairperson