GSB#1466/99
Union # 99U085
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Management Board Secretariat)
Employer
BEFORE Richard M. Brown Vice-Chair
FOR THE GRIEVOR Richard Blair
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Len Marvy
Senior Counsel, Legal Services Branch
Management Board Secretariat
HEARING November 5, 2001.
This grievance arises from the impending transfer of the Ontario Realty Corporation (ORC) from the Crown to the broader public sector. The transfer is expected to happen on November 30, 2001. When it occurs, ORC employees will cease to be public servants will no longer be represented by the union.
Most persons in the employ of ORC before the transfer will receive offers of continued employment by virtue of a recent, undated memorandum of agreement between ORC and the Crown. This memorandum was negotiated on behalf of the Crown by Management Board Secretariat (MBS) in discharge of its obligations under Appendix 18 of the current collective agreement. Employees who do not receive a job offer will have surplus rights under the collective agreement.
The grievance alleges a violation of Appendix 18, but the parties have now resolved all of the issues concerning the application of the collective agreement to the facts at hand. The only outstanding issue concerns an earlier memorandum of understanding, dated November 25, 1994, to which OPSEU, ORC and the Crown are signatories. According to the union, the impending transfer will violate a job offer guarantee contained in the memorandum. The employer contends this guarantee has no application to the facts at hand
I
The 1994 memorandum was negotiated in the context of the Realty Group of MBS being transformed into ORC. Some employees of the Realty Group transferred to ORC while others were laid off. This transformation had no affect on the status of employees as a public servants or on OPSEU’s status as their bargaining agent. The relevant portions of the memorandum state:
A public servant whose position is identified as surplus to the requirements of the Realty Group of the Ministry prior to assumption of the operations of the Realty Group by the Corporation is entitled from the Ministry to 6 months notice of layoff, in accordance with the provisions of Article 24 or any successor provision.
The Parties agree the provisions of Article 24.17 do not apply to the abolition of the positions of the public servants named in Appendix 1
A public servant who is declared surplus, in accordance with paragraph 16, may, within 2 weeks of the surplus declaration, opt in writing for a No Employment Loss Guarantee wherein the public servant will be entitled, from the Ministry, to:
(a) 6 months notice of layoff and a guarantee of one job offer to a position for which the public servant is qualified, and
(b) If the public servant is not offered a job within the month notice period set out in subparagraph (a), additional notice periods of six months will be provided by the Ministry, until an offer of employment for which the public servant is qualified, consistent with the salary parameters as outlined in article 24.5(b) of the Collective Agreement, is made. The Ministry will make its best effort to place the public servant within a desirable geographic location.
(c) The Ministry’s obligation to offer the No Employment Loss guarantee to a public servant, on the attached Appendix 1, ends when the Ministry offers to the public servant an assignment to a position that is not a temporary assignment.
- Failing written notification pursuant to Paragraph 18, the provisions of Article 24.2.1 or any successor provision will apply.
Paragraph 18 refers to article 24.17 of the 1992-93 collective agreement dealing with employees whose jobs were eliminated by “contracting out, divestment or comparable transfer.” By virtue of this article, such employees were guaranteed an offer of another job in the public service. Paragraph 18 of the 1994 memorandum provided the same sort of protection to employees, but differed from article 24.17 as to the details of the job offer guaranteed.
The job offer guarantee found in article 24.17 was not carried over to later collective agreements. Both subsequent agreements have taken a different approach to employees rendered surplus by the transfer of work from the Crown to another employer. In Appendix 9 of the 1993-96 agreement, the Crown undertook to make “reasonable efforts” to ensure surplus employees received an offer of employment from the employer to whom work was transferred. Appendix 18 of the current agreement added a substantial amount of flesh to the bare bones of Appendix 9 in relation to job offers from the receiving employer.
II
The threshold question is whether the job offer guarantee contained in the 1994 memorandum governs the impending transfer of ORC from the Crown to the broader public sector. A literal reading of the memorandum provides ample support for the conclusion that the memorandum does not apply in these circumstances. According to the wording of paragraph 18, the job offer guarantee extends to an employee declared surplus “in accordance with paragraph 16.” Paragraph 16 speaks of an employee “whose position is identified as surplus to the requirements of the Realty Group”. In other words, employees surplussed by the Realty Group in 1994 were entitled to receive a job offer from ORC. There is nothing in the 1994 memorandum to indicate the job offer guarantee contained therein was intended to extend to employees who are now about to be laid off by ORC, some seven years and two collective agreements later.
Having decided the threshold question in the employer’s favour, I need not consider the remedial consequences of a breach of the 1994 memorandum. The grievance is dismissed.
Dated at Toronto, this 8thday of November, 2001.