GSB #0447/00, 1042/00

OPSEU#00U072, 00U130

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) Grievor

• and -

The Crown in Right of Ontario (Ministry of the Community and Social Services) Employer

BEFORE: Deborah J.D. Leighton, Vice Chair

FOR THE GRIEVOR: David Wright, Counsel, Ryder Wright Blair & Doyle, Barristers and Solicitors

FOR THE EMPLOYER: John Smith, Senior Counsel, Legal Services Branch, Management Board Secretariat

HEARING: October 17, 2000, November 16, 2000.

The union grieves that the Ministry violated Appendix 18 of the Collective Agreement by awarding RFP’s for three detention centres – Genest, Project Dare and Syl Apps. The parties have asked the Board for an interpretation of Section 5.3 and 5.2 of Appendix 18.

There is no dispute between the parties that in each case the receiving employers do not recognise seniority rights for the purposes of layoff and competitions. The union’s view is that this breaches section 5.3 of Appendix 18, which provides in part:

Such job offers shall be at a salary of at least 85% of the respective employee’s weekly salary at the time of the issuance of the RFP and recognise the service and seniority of the Ontario Public Service (OPS) of each employee for the purpose of qualification for vacation, benefits (except pension), layoff, job competition, severance and termination payments to the extent that they are provided in the proponent’s workplace.

The first issue before me is whether the words “to the extent that they are provided in the proponent’s workplace” modify only “severance and termination payments,” or the whole list.

The Employer takes the position that the modifying clause refers to the entire list. Counsel for the employer argued that section 5.3 of Appendix 18 is clear and unambiguous. He further argued that the language was intended to set limits on the transfer of seniority rights. In his submission the language of section 5.3 was intended to “overturn” the board’s decision in OPSEU (Union Policy Grievance and the Ministry of Finance 0976/98 (Dissanayake).

Union counsel argued that Appendix 9 and 18 require the employer to make reasonable efforts to secure jobs for bargaining unit employees whose work is being transferred out of the OPS. The four schedules in Appendix 18 provide varying control on what new employers will offer. Schedule A provides for the most control through the use of a tendering process-Requests for Proposal (RFP). The job offers to bargaining unit employees must meet the requirements under section 5.3 or they are entitled to decline the offer. Counsel cited Union Policy Grievance (supra) which decided that under para. 1(b) of Appendix 9 the employees of the OSC, whose service and seniority for the purpose of layoff and competitions was not carried over to the new employer, were entitled to decline the job offers. Counsel argued in summary that I should keep the context of the reasonable efforts provisions in mind when I interpret section 5.3 Further, to the argument that section 5.3 of Appendix 18 was written to overturn the Union Policy Grievance (OSC), counsel noted that there was no evidence to support this proposition. Severance and termination payments are unique provisions in the OPS and thus it is logical to conclude that without a comma after severance and termination payments, the modifying clause only applies to them.

Decision on Section 5.3

The sentence in question in section 5.3 is not as clear as it might be. Thus the parties have proposed two very different interpretations of the language. After careful consideration of the submissions of the parties I have decided that the more plausible interpretation is that the modifying clause only applies to “severance and termination payments”. I come to this conclusion for several reasons. Had the parties intended, as suggested by the employer, to overturn the decision in Union Policy Grievance (OSC), they needed to use very clear, explicit language. This they have not done. As noted at the beginning of Article 18, it represents a full and complete interpretation of matters arising, inter alia, under para 1 of Appendix 9, the subject at issue in the Union Policy Grievance (OSC).

The board in the OSC case had to decide whether employees of the OSC could decline the job offers of the new employer because the new job gave them no seniority for the purposes of layoff and job competitions. The board was interpreting para 1(b) of Appendix 9, which provides:

Where the salary of the job offered by the new employer is less than 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.

The board held that the employees were entitled to decline the job offers of the new employee. The board held that “seniority is one of the keys to job security in any collective agreement.” The board concluded that the parties did not intend that the words ‘service and seniority’ mean the same thing, the result of which would mean no seniority protection for employees going to the new jobs. The language of para 1(b) is clear that if seniority is not carried over, employees may decline the job offer.

The language of section 5.3, itself, while not as clear as it might be, does suggest that the better interpretation is that the clause only modifies severance and termination pay. The structure of the sentence includes a list of items and modifiers were added as needed on an item by item basis. Thus benefits is listed and modified by the words “except pension.” Likewise, severance and termination payments is modified by the clause “to the extent etc.” If the parties had intended to have the clause modify the whole list then it is also more likely that they would have put a comma after the last items on the list, i.e. severance and termination payments.

For the reasons noted above I find that the clause “… to the extent that they are provided in the proponent’s workplace,” modifies severance and termination payments only. The clause does not apply to “vacation, benefits (except pension), layoff, job competition.”

Decision on Section 5.2

A second issue arises under the transfer of workers from Syl Apps to the new employer. Employees at Syl Apps were advised by the Employer that if they opted out of the RFP under section 5.2 of Appendix 18 they were still eligible to apply for restricted competitions for 24 months from the date of lay-off. The union is of the view that this advice is wrong and that section 5.2 provides specifically only pay in lieu of notice under Article 20.2 and the greater of a) the separation allowance in accordance with Article 20.3 or b) enhanced severance in accordance with paragraph 4 of Appendix 9. I am persuaded on a plain reading of Section 5.2 that the parties explicitly restricted the rights under Article 20.2 by the following language in section 5.2: “Upon receipt of the surplus notice, the affected employee will exit the OPS immediately, these employees will receive only the benefits set out below:”

The only benefits provided are as noted above, pay in lieu of notice or either the separation allowance or enhanced severance whichever is greater. Had the parties intended to give exiting employees the full rights under Article 20.2 they would not have restricted the benefit of Article 20.2 by referring only to pay in lieu of notice and the separation allowance.

Dated at Toronto, this 6^th^ Day of December 2000.