AMAPCEO (Gilliam) v. The Crown in Right of Ontario (Ministry of Transportation), 2000 CanLII 20557

GSB #0452/00

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

AMAPCEO

(Gilliam)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE Randi Hammer Abramsky Vice Chair

FOR THE Steve Barrett, Counsel

GRIEVOR Sack Goldblatt Mitchell

Barristers and Solicitors

FOR THE Len Marvy, Senior Counsel

EMPLOYER Legal Services Branch

Management Board Secretariat

HEARING November 1, 2000.

AWARD

The instant grievance raises the question of whether the grievor, Kingsley Gilliam, is entitled to assert rights under the Public Service Act to be considered for a direct assignment without competition under s. 14(4) of Regulation 977. Fundamental to that issue is whether, under the specific and limited facts of this case, the grievor’s rights under the Public Service Act remain enforceable?

Facts

The parties stipulated the facts, as follows:

1. Kingsley Gilliam was hired as an 18 APL prior to March 23, 1995.

2. On March 23, 1995, the Management Board of Cabinet and AMAPCEO signed a Memorandum of Understanding recognizing AMAPCEO as the bargaining agent for the proposed seventh unit.

3. On May 23, 1995, Mr. Gilliam was notified that until a collective agreement could be reached between AMAPCEO and the government, his pay, benefits and working conditions would continue to be governed by management policies and the Public Service Act (PSA). The letter also stated that Mr. Gilliam’s position had been confirmed as eligible for bargaining and belonging to the seventh unit.

4. On December 6, 1995, Mr. Gilliam was surplussed as an 18APL in accordance with the PSA and assigned as a 16 APL Trainer in the Human Resources Branch on the same date.

5. On March 6, 1996, a Memorandum of Agreement (Interim Agreement) was signed recognizing AMAPCEO as the bargaining agent of all Crown employees as defined in section 1 of CECBA, 1993 who are Public Servants, but who were not otherwise included in the six bargaining units described by the Lieutenant Governor in Council.

6. On January 14, 1997 Mr. Gilliam was surplussed at MOE as per Article 6.1 of AMAPCEO Interim Agreement.

7. On January 23, 1997 Mr. Gilliam was assigned as a 16AGA at the MCSS under Article 6.2 of the AMAPCEO Interim Agreement.

8. On April 7, 1997 Mr. Gilliam was surplussed as a 16AGA at the MCSS as per Article 6.1 of the AMAPCEO Interim Agreement.

9. On August 5, 1997 Mr. Gilliam was surplussed as a 16AGA at the MTO in accordance with Article 6.1 of AMAPCEO Interim Agreement.

10. On August 5, 1997, Mr. Gilliam was assigned as a 15AGA at the MTO in accordance with Article 8 of the AMAPCEO Interim Agreement.

11. On May 27, 1998, the AMAPCEO Collective Agreement was ratified.

12. On July 7, 1999, Mr. Gilliam was surplussed as a 15 AGA at MTO in accordance with Article 27.6.1 of the AMAPCEO Collective Agreement.

13. On July 14, 1999, Mr. Gilliam was assigned as a 16 PEC at MTO in accordance with Articles 27.6.2 and 27.8.4 of the AMAPCEO Collective Agreement.

14. On September 22, 1999, Mr. Gilliam requests that he be assigned without competition pursuant to Article 18.8.1(h) of the AMAPCEO Collective Agreement to the position of 18 APL as a Policy Advisor.

15. On September 30, 1999, the request is denied as Mr. Gilliam was not directly assigned under Article 27 of the AMAPCEO Collective Agreement or its predecessor Article 6 of the AMAPCEO Interim Agreement, therefore the Articles are not applicable to the circumstances.

16. On February 29, 2000, AMAPCEO and the Ministry concluded an Agreement establishing the process and rules based on the agreed interpretation of Article 18.8.1(h).

Under the February 29, 2000 agreement, the parties agreed that Article 18.8.1(h) would apply when an employee is surplussed under either Article 27 or the Interim Agreement. The subject of employees who were surplussed prior to the Interim Agreement was not discussed.

On October 8, 1999, Mr. Gilliam grieved the denial of his request for a direct assignment as a violation of “Articles 18.8.1h and any other provisions of the Collective Agreement that are relevant.”

Article 18.8.1(h) provides as follows:

Exceptions from the Requirements to the Posting and Filling of Positions.

18.8.1 Vacancies may be filled without competition upon clearing surplus under the following circumstances:

(h) In addition, any employee who is directly assigned under Article 27 and who then applies for a vacant position or whose duties are changed as a result of a reorganization or reassignment of duties and the position is reclassified to a lower classification is entitled to be appointed to the first vacant position which:

• is in his/her ministry as defined in Article 17.12; and

• is at a salary maximum higher than that currently held, but not higher than originally held

• he/she is qualified to perform

• has cleared the surplus requirements of Article 27;

and the provisions of Article 18.1 to 18.5 shall not apply unless otherwise specified.

Although the grievor’s September 30, 1999 request for a direct assignment, as well as his grievance, was based on Article 18.8.1(h), the Union, at the hearing, did not assert that the grievor had entitlements under that provision. It agrees, and the facts clearly establish, that the grievor was originally surplussed on December 6, 1995 under the Public Service Act. It is also clear that Article 18.8.1(h) applies only when an employee is surplussed under Article 27, or based on the February 29, 2000 agreement of the parties, when an employee was surplussed under the Interim Agreement of March 23, 1996. It has no applicability to the grievor who was surplussed and assigned to a lower rated position under s.14(4) of Reg. 977 of the Public Service Act, four months before the Interim Agreement took effect.

The Employer submits that the grievance must be dismissed on this basis. It submits that the clear language of Article 18.8.1(h) limits its application to “any employee who is directly assigned under Article 27” and thus does not apply to the grievor. Nor, it contends, was the grievor directly assigned under the Interim Agreement so as to trigger Article 18.8.1(h) under the February 29, 2000 agreement. It submits that the parties could have, but did not, include language which included direct assignments prior to the Interim Agreement, under the Public Service Act, even though both sides were well aware that such direct assignments had been made. It acknowledges, however, that this issue was not addressed in the February 29, 2000 agreement. In the Employer’s view, for this Board to interpret Article 18.8.1(h) to include employees directly assigned under the Public Service Act would constitute an improper amendment of the collective agreement.

Instead of Article 18.8.1(h), the Union argues that the grievor’s rights are based on s.14(4) of Reg. 977 of the Public Service Act which remain enforceable. It contends that his rights under s. 14 vested at the time he was surplussed and accepted a lower rated position. He accepted this change, it contends, with the reasonable expectation that s.14(4) would apply to enable him to return to his higher rated classification. Section 14(4) of Reg. 977 states as follows:

(4) Where a civil servant accepts a transfer under subsection (2) to a position with a lower maximum salary and in any ministry to which he or she thereafter applies there is a vacant position,

(a) for which he or she is qualified;

(b) for which he or she is acceptable to the deputy minister of the ministry; and

(c) with a maximum salary,

(i) greater than that of the position to which the civil servant accepted a transfer under subsection (2), and

(ii) not greater than that to which he or she would have been entitled if it had not been proposed to release him or her and he or she had remained in the position from which he or she accepted a transfer under subsection (2),

the deputy minister of the ministry shall transfer the civil servant to the vacant position.

Historically, the employees represented by AMAPCEO were exempt from collective bargaining and their terms and conditions of employment were governed by the Public Service Act and regulations thereunder, as well as government policies. In 1993, the Crown Employees Collective Bargaining Act (CECBA) was amended to include employees such as Mr. Gilliam. In January 1995, AMAPCEO sought voluntary recognition from the government and filed an application for certification with the Ontario Labour Relations Board. That application triggered s. 81 of the Labour Relations Act, statutorily freezing all terms and conditions of employment.

On March 6, 1995, the government and AMAPCEO signed a voluntary recognition agreement. Part VI of that agreement states as follows:

17. The parties agree that until a first collective agreement is entered into, the provisions of section 81 of the Labour Relations Act apply to all positions and persons listed… For greater certainty, the parties agree that the Government may reorganize and restructure provided that employees affected receive the benefits of the current transfer/surplus/redeployment provisions and practices as they apply to employees in MCP classifications, or any superior benefit(s) that may have been obtained under the Social Contract, or agreements flowing from it.

Paragraph 20 of the Part VI provided for a dispute resolution process, stating that “[a]ny dispute concerning this Part shall be referred to a mediator/arbitrator agreed to in the order set out in the letter of understanding dated March 23, 1995, which letter forms part of this Agreement, for binding determination following a hearing, which decision shall be final and binding on the parties. …”

On March 6, 1996, the parties entered into the Interim Agreement which dealt almost exclusively with job security provisions – layoff, notice, pay-in-lieu, direct assignment, bumping, severance, etc. Article 2 of the Interim Agreement noted, among other matters, that “issues related to Section 14(4) of the Public Service Act and its applicability with respect to bumping, direct assignment and recall” would be subject to negotiation in subsequent first contract negotiations between the parties.

On May 5, 1998, the parties signed their first collective agreement, with the exception of a few matters that were referred to interest arbitration. The collective agreement contains a “Letter of Understanding re: Part VI of the Voluntary Recognition Agreement”. It states as follows:

May 5, 1998

The parties agree that, despite language to the contrary in the Voluntary Recognition Agreement, any dispute in respect of an alleged violation of Part VI of the Voluntary Recognition Agreement will be enforced under Article 15 of the Collective Agreement.

This letter of understanding forms part of the collective agreement.

Article 15 of the collective agreement is the “Dispute Resolution Process.”

The Union contends that under this Letter of Understanding, the rights of employees such as Mr. Gilliam under s. 14 (4) of Reg. 977 of the Public Service Act, as continued by the statutory freeze, were incorporated into the collective agreement and made enforceable through the grievance arbitration process. The Union submits that the parties, both in the Interim Agreement and Article 18, carried forward the principles and basic structure of s. 14(4) of Reg. 977 in a seamless manner, albeit with some minor variations. It states that employees surplussed after the Interim Agreement or under the current collective agreement are bound by Article 18.8.1(h), while employees like Mr. Gilliam maintain their rights under the Public Service Act. It argues that employees like Mr. Gilliam should not lose their statutory rights because the parties included the same protections in their collective agreement. Instead, it asserts that such a loss of vested rights may only be done through express contractual language and that no such language exists in the agreement. It argues that nothing in the collective agreement strips employees of rights accrued during the statutory freeze. On the contrary, it argues that the May 5, 1988 letter of understanding demonstrates that the parties did not extinguish employee rights which accrued prior to the collective agreement, but provided that they would continue to be enforced through the grievance arbitration process.

In support of its contentions, the Union cites to Re Canadian Canners Ltd. And International Association of Machinists (1973), 1973 CanLII 2023 (ON LA), 4 L.A.C. (2d) 59 (Schiff); Re Bell Canada and Communications Workers of Canada (1984), 1984 CanLII 5159 (CA LA), 15 L.A.C. (3d) 27 (M. Picher); Re Bearskin Lake Air Service Ltd. and United Food & Commercial Workers International Union (1997), 1997 CanLII 24971 (CA LA), 69 L.A.C. (4th) 421 (Bendel); AMAPCEO (Cowling) and Ministry of Transportation, GSB No. 2064/99 (Dissanayake, Vice-Chair); Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants’ Union No. 10 et al. 1983 CanLII 1638 (ON CA), [1983] 42 O.R. (2d) 404 (Ct. App.); Re SEIU, Local 204 and Broadway Manor Nursing Home et al. 1984 CanLII 2112 (ON CA), [1984] 48 O.R. (2d) 225 (Ct. App.)

The Employer raised a number of responses to the Union’s contentions. First, it submits that Part VI of the Voluntary Recognition Agreement specifically states that “[t]he parties agree that until a first collective agreement is entered into, the provisions of section 81 of the Labour Relations Act apply…” (emphasis added) It submits that by its terms, once a collective agreement is in place, that is the law between the parties. The Employer argues that under the letter of understanding, a dispute about the freeze that arose between the time of voluntary recognition and the first collective agreement, rights which are vested and disputed at that time, is subject to arbitration, but substantively, the freeze does not continue in force after the first collective agreement is signed. The letter of understanding does not, it submits, substantively continue in force rights under the Public Service Act. It submits that the grievor cannot rely on s.14(4) in 1999. In 1999, there is a collective agreement and s.14(4) of Reg. 977 no longer applies.

The Employer also relies on s. 14(9) of Reg. 977. That provision states:

(9) This section does not apply to… persons within a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993. O Reg. 168/96, s.3

This provision, it contends, is absolutely clear on its face that the section does not apply to persons within a unit of employees established for collective bargaining under CECBA. It argues that the parties were very aware of this provision when they negotiated the collective agreement and did not provide for employee’s surplussed and assigned prior to the Interim Agreement. In its submission, the parties could have dealt with employees like Mr. Gilliam, but they did not. It argues that in 1999, when Mr. Gilliam seeks to enforce s.14 (4), he is clearly within the AMAPCEO bargaining unit.

It should be noted that a substantially similar provision existed in Reg. 977 before CECBA was amended to include the AMAPCEO bargaining unit. Previously, s.14 (9) stated as follows:

(9) This section does not apply …to persons within a unit of employees established for collective bargaining under any Act. R.R.O. 1980, Reg. 881, s.19 (8,9)

It was changed to its present language in 1996.

The Employer also relies on s. 29(3) of the Public Service Act. That provision states:

Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation.

The Employer contends that s.14(4) is in direct conflict with Article 18 of the collective agreement. Article 18, entitled “Recruitment – Posting and Filling of Positions”, requires, among other things, the posting of vacancies and that they be filled through competitions. Section 14(4) of Reg. 977, similarly to Article 18.8.1(h), removes a vacancy from the competition process and allows it to be filled by direct appointment. In the Employer’s view, s.14(4) would give the grievor, substantively, a right in conflict with the rights of other employees in the bargaining unit to compete for vacant positions. In the Employer’s submission, the only exception to the posting/competition requirements in Article 18 is found in Article 18.8.1 which the grievor is not eligible to invoke.

In addition, the Employer contends that s.14 (4) creates other conflicts because of its differences with Article 18.8.1(h). Specifically, under Article 18.8.1(h), the vacant position must have cleared the surplus list; the same is not specifically required in s. 14(4). Under Article 18.8.1(h), the right to a direct appointment is limited to a vacant position in the employee’s ministry, not “any ministry” as in s. 14(4). These differences, in the Employer’s submission, creates a conflict between s. 14(4) and the collective agreement, and in those circumstances, under section 29(3) of the Public Service Act, the collective agreement prevails.

The Union’s response to this argument is that there is no conflict between s. 14(4) and the collective agreement because the two provisions apply to distinct time periods – they are temporally distinct. It submits that s. 14(4) applies to the period before the Interim Agreement while the negotiated provisions apply thereafter. An employee’s rights, it asserts, depend upon when they were surplussed.

The Union further argues that the collective agreement specifically allows for the enforcement of accrued rights under the statutory freeze period through the letter of understanding. Therefore, it contends, that s. 14(4) does not conflict with the collective agreement.

Finally, the Union submits that to the extent that there is a conflict between s. 14(4) and Article 18.8.1(h), the Board should read s.14(4) in a manner consistent with the collective agreement. In other words, it should be read so as to require a vacant position to clear surplus and be limited to the employee’s own ministry and thus avoid any conflict.

In response to the Employer’s contentions about s.14 (9), the Union asserts that to the extent that this regulation conflicts with the collective agreement, the collective agreement prevails under s.29 (3) of the Public Service Act. The collective agreement, in its view, incorporates, through the letter of understanding, the rights vested by virtue of the statutory freeze. In addition, by law, as well as the Voluntary Recognition Agreement of the parties, the employees’ rights under the Public Service Act continued to apply until the Interim Agreement. Thus, the parties at the time, it submits, did not view s. 14(9), as eliminating the applicability of s. 14. Additionally, from a purposive approach, s. 14(9) precludes s. 14 from continuing to apply where there is a bargaining unit and a collective agreement. The collective agreement supersedes the regulation. But until then, the regulation continues to apply and under the parties’ collective agreement, employees’ rights under the freeze may be arbitrated.

Although not cited by either party, Sections 30 and 31 of Reg. 977, Part V, Grievance Procedure, provide, in pertinent part, as follows:

30. In the Part,

“grievor” means a person who files a grievance under this Part.

31. (1) The following persons are not eligible to file a grievance under this Part:

32. A person with a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993.

33. …

(2) Despite paragraph 1 of subsection (1), a person who is a member of a unit represented by the Association of Management, Administrative and Professional Crown Employees (AMAPCEO) for the purposes of collective bargaining under the Crown Employees Collective Bargaining Act, 1993 may file a grievance under this Part until the Crown and AMAPCEO enter into a collective agreement that provides a different grievance process for the person.

DECISION

Factually, this case is quite simple. Legally, however, it is quite complex and raises questions involving a very unusual mix of statutory and collective agreement rights and regimes. For the reasons set forth below, I conclude that the grievance must be dismissed.

At the time that the grievor was surplussed and redeployed in December 1995, the grievor’s rights were governed by s.14 of Reg. 977 of the Public Service Act. Yet that was not the only statute at work. At that time, CECBA had been amended to include employees such as the grievor. AMAPCEO had been recognized as bargaining agent. The parties were operating under the statutory freeze required by s. 81 of the Labour Relations Act and as set out in the Voluntary Recognition Agreement. The parties were, at that moment, in the process of negotiating provisions concerning job security. Consequently, although the grievor, at the time he was declared surplus and offered a lower rated position in December 1995, may have had some expectation that he would be able eventually to reclaim his former classification through s.14 (4) or some similar negotiated provision, that expectation is significantly lessened by the surrounding circumstances.

Indeed, the expectation at the time was that rights under the Public Service Act would give way to rights under a collective agreement. A new collective bargaining regime was to be implemented for employees like Mr. Gilliam. This expectation is evidenced in Part VI of the Voluntary Recognition Agreement. That agreement was quite clear that “[t]he parties agree that until a first collective agreement is entered into, the provisions of section 81 of the Labour Relations Act apply…” (emphasis added) By its terms, it explicitly limits the freeze (and the underlying statutory terms) to the period before a first collective agreement is entered into. After the first collective agreement is entered into, the agreement governs the parties.

The same approach is evident in the Public Service Act – the Act governs until a collective agreement is entered into. Section 31 of Reg. 977 exempts “[a] person within a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993” from filing a grievance, but then specifically states that “a person who is a member of a unit represented by … (AMAPCEO) for the purposes of collective bargaining under the Crown Employees Collective Bargaining Act, 1993 may file a grievance under this Part until the Crown and AMAPCEO enter into a collective agreement that provides a different grievance process for the person.” (emphasis added) Section 14(9) of Reg. 977 states that “[t]his section does not apply to … persons within a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993. O. Reg. 168/96, s.3. It distinguishes between employees exempt from bargaining and those governed by it. Likewise, Section 29(3) of the Public Service Act provides that “[a]ny provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation.” Under this provision, if there is a conflict between Reg. 977 and a collective agreement, the collective agreement prevails.

This approach is followed each time a collective bargaining regime begins. Usually, in the private sector, the common law or individual contracts of employment govern the employment relationship until a collective agreement is entered into. Once the collective agreement is in place, however, it governs and controls the relations between the parties and the common law or individual contract no longer applies. The difference here is that the employment relationship, since the Crown is a public body, was governed by statute, not the common law. But the principle is the same. The two regimes do not co-exist to govern employee terms and conditions of employment. The collective bargaining regime prevails. That was the effect of the amendments to CECBA which authorized collective bargaining for employees such as the grievor.

The grievor was clearly advised of this approach. A May 23, 1995 letter to Mr. Gilliam regarding his “status and the Crown Employees Collective Bargaining Act” informed him that his position “has been confirmed as eligible for bargaining and belonging within the newly-represented seventh unit.” It continues:

Your pay, benefits, pension and working conditions continue to be governed by management policies and the Public Service Act, until a collective agreement is negotiated. Your pay, benefits, pension and working conditions will be governed by the first collective agreement. …

Thus, the grievor, in December 1995, was well aware that his rights under the Public Service Act would be changed and governed, instead, by a collective agreement.

What occurred here – the implementation of a collective bargaining regime – is quite different from the situation in AMAPCEO (Cowling) and Ministry of Transportation, GSB No. 2064/99 (Dissanayake). In that case, a statute, Bill 7, revoked the grievor’s inclusion in the AMAPCEO bargaining unit under CECBA and the Employer, as a result, denied the grievor rights under Article 18.8.1(h) after that date, even though at the time he had been surplussed, he was a member of the unit and governed by the collective agreement. Vice-Chair Dissanayake, based on the Interpretation Act and the common law principle that it is “presumed that legislation is not intended to interfere with vested and accrued rights” determined that the grievor retained rights under Article 18.8.1(h). He concluded at p. 8:

[A]n employee at the time of surplussing may reasonably expect that he will have a right to a direct assignment under article 27 and that as a result, he would have rights under article 18.8.1(h) following a direct assignment, provided he meets the conditions therein. Since Bill 7 did not exist at the time the grievor was surplussed, he was reasonably entitled at that time to have such an expectation. Those were the rules that would govern his future employment with the OPS. It is simply unfair to change those rules as a result of subsequent legislation.

In the present case, because of the advent of a collective bargaining regime which predated his surplus, the grievor could not reasonably expect that s. 14(4) would continue to govern his future employment with the OPS. At the time he was surplussed and redeployed, the whole issue of s. 14 was subject to negotiation. There could be no reasonable expectation that it would remain in its present form, as indeed it did not, or even in any form. It was a subject of collective bargaining and thus subject to change.

Further, the parties specifically agreed, in the Voluntary Recognition Agreement, that the statutory provisions regarding “the current transfer/surplus/redeployment provisions and practices” applied only “until a first collective agreement is entered into.” Employees would receive the benefit of those provisions until the first collective agreement, not thereafter. Thus, to the extent that clear language was needed to negate the continuation of the Public Service Act, the Voluntary Recognition Agreement provides such language.

For all of these reasons, I cannot conclude that the grievor’s rights under s.14(4) “vested” at the time he was surplussed, or that he had a reasonable expectation that s.14(4) would continue to govern his future employment with the OPS. The reasonable expectation of the parties – as well as the grievor – in the period between recognition and the collective agreement was that s.14(4) would not continue to govern the employment relationship once the first collective agreement was entered into.

I further conclude that the inclusion of Part VI in the parties’ first collective agreement, through the May 5, 1998 letter of understanding, does not change the substantive effect of Part VI. That letter states as follows:

May 5, 1998

The parties agree that, despite language to the contrary in the Voluntary Recognition Agreement, any dispute in respect of an alleged violation of Part VI of the Voluntary Recognition Agreement will be enforced under Article 15 of the Collective Agreement.

This letter of understanding forms part of the collective agreement.

This provision, when read in light of Part VI of the Voluntary Recognition Agreement as a whole, does not serve to change the substantive terms of Part VI, as the Union suggests. The words “despite language to the contrary” do not change the words “until a first collective agreement is entered into”; it changes only the enforcement mechanism. Instead of having disputes about an alleged violation governed by the grievance process set forth in Part VI of the Voluntary Recognition Agreement, disputes are to be enforced through Article 15 of the collective agreement. Accordingly, the substantive limitation in Part VI – that the current transfer/surplus/redeployment provisions apply only until a first collective agreement is entered into – continues under the May 5, 1998 letter of understanding.

Without question, the parties turned their minds to the issues under s.14 (4) of Reg. 977. The Interim Agreement deals extensively with job security provisions. Article 2 of the Interim Agreement noted that “issues related to Section 14(4) of the Public Service Act and its applicability with respect to bumping, direct assignment and recall” would be subject to negotiation in subsequent first contract negotiations. The first contract dealt extensively with this issue in Article 27 and Article 18. Then, on February 29, 2000, AMAPCEO and the Employer reached a further agreement that Article 18.8.1(h) would also apply when an employee was surplussed under the Interim Agreement. The subject of employees who were suplussed prior to the Interim Agreement was not addressed. The result is that the collective agreement, as it currently exists and as amended by the February 29, 2000 agreement, does not apply to the grievor. Article 18.8.1(h) applies only to employees who are “directly assigned under Article 27 [or the Interim Agreement]…” The grievor was not directly assigned under Article 27 or the Interim Agreement.

The Union asserts that it is unfair and contrary to the intent of the parties that the grievor should fall into this “black hole” – deprived of his rights under s. 14(4) by virtue of the negotiation of similar rights under the collective agreement. It asserts that rights under the Public Service Act flow seamlessly into the rights under the collective agreement.

I certainly agree that the grievor is in an untenable position. His situation strikes me as unfair to him. There does not appear to be any valid reason why an individual such as Mr. Gilliam has no opportunity to return to his original classification through a direct appointment when similarly situated employees, both before AMAPCEO was recognized and after the Interim Agreement was signed have that opportunity. It is just the group of employees who were surplussed prior to the Interim Agreement who fall into what counsel so colourfully characterized as a “black hole.” Despite the inequity of this, I still cannot conclude that the grievor may enforce rights under the Public Service Act in 1999.

This is because, even if I am wrong and the grievor’s rights under s.14 (4) “vested” at the time of his surplus, enforcement of those rights in 1999 would conflict with the rights of other employees under the collective agreement. With certain limited exceptions, employees have the right to compete for vacant positions. Allowing the grievor to exercise rights under s.14 (4) to transfer to a vacant position would conflict with that right. Under s. 29(3) of the Public Service Act, the collective agreement prevails over any conflicting regulation. The fact that s.14 (4) was incorporated into the collective agreement by virtue of the May 5, 1998 letter of understanding does not avoid this result. Enforcement of the grievor’s rights under s. 14(4) in 1999, even if incorporated into the collective agreement, conflicts with the right of other employees under the collective agreement to compete for vacant positions. This situation is one of the reasons that the pre-collective bargaining and post-collective bargaining regimes cannot co-exist.

For this reason as well, I cannot accept the Union’s position that the grievor’s rights under the Public Service Act apply to the period before the first collective agreement was signed on March 6, 1996, but not thereafter, and that his rights under s. 14(4) which vested at the time he was surplussed may be enforced in 1999. Although the Union is correct that the grievor’s rights under the Public Service Act apply to the period before the first collective agreement was signed and not thereafter, even if they did “vest” at the time they cannot be enforced in 1999. To enforce those rights now would conflict with the rights of other employees in the collective agreement. Nor is it possible, as the Union suggests, to read the grievor’s rights under s. 14(4) in a manner consistent with the collective agreement.

Accordingly, despite the equities of the situation, for all the reasons set forth above I conclude that the grievance must be dismissed.

Dated at Toronto, this 15th day of December, 2000.