GSB #1252/00
OPSEU#00U148, 00U149, 00U150
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 Solicitor General and Correctional Services)
Employer
BEFORE Richard Brown Vice Chair
FOR THE David Wright, Counsel
GRIEVOR Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE Len Marvy, Senior Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING January 22, 2001, January 25, 2001.
DECISION
This union policy grievance arises out of the impending opening of the Central North Correctional Centre (CNCC) in Penetanguishene. The property and buildings at this site are owned by the provincial government. The government’s intention is to find a private-sector contractor to operate the facility. Some or all of the employees at each of four institutions now operated by the Ministry of Solicitor General and Correctional Services have received notices, under Appendix 18 of the collective agreement, informing them that their jobs will be included in the request for proposals (RFP) to operate CNCC. The four facilities are: (1) Barrie Jail; (2) Parry Sound Jail; (3) Burtch Correctional Centre; and (4) Guelph Correctional Centre.
The grievance poses a number of issues. This decision deals exclusively with employees whose work will be privatized at the same time as it is moved to CNCC and with the question whether they are entitled, under Appendix 13, to be reimbursed for the cost of relocating.
I
Appendix 13 is entitled “Relocation of Operation Beyond 40 Kilometre Radius.” It states:
The Employer and Union herewith agree that, when a ministry decides to change an operation’s headquarters to a location outside a forty (40) kilometre radius of that operation’s current headquarters, the following terms and conditions will apply:
(1) affected employees will be notified, in writing, of the ministry’s decision to change the operation’s headquarters location and the date when such change will take place;
(2) (a) employees may accept the change in headquarters location, in which case they will be eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy; or
(b) employees may reject the change in headquarters location, in which case they will be given six (6) months’ notice of lay-off pursuant to Article 20.2.1 (Notice and Pay in Lieu) and have full access to the provisions of Article 20 (Employment Stability) and Appendix 9 (Employment Stability) of the Central Collective Agreement.
(3) if several employees hold the same position and fewer of their positions are required in the new headquarters location, the employees with the greatest seniority will be given the opportunity to go to the new headquarters location first.
(4) it is understood that when an employee accepts the change in headquarters location in accordance with this Memorandum of Agreement, the provisions of Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply.
Some or all of the four institutions listed above are more than forty kilometres from Penetanguishene. For employees at sites falling within this category, the employer conceded that Appendix 13 would apply if the Ministry of Solicitor General and Correctional Services were to operate CNCC upon its opening. The government’s intention is to have the Ministry run this facility only if a suitable contractor cannot be found. The employer contended Appendix 13 would not apply if CNCC opens under private-sector management. According to the union, Appendix 13 applies regardless of who initially manages the site.
It is common ground that the collective agreement creates three sets of rights: (1) surplussing rights under article 20 which apply when work formerly done by employees in the public service ceases to be done; (2) rights under Appendix 13 which apply when work is relocated from one site to another; (3) and rights under Appendix 18 which apply when work is moved from the OPS to the private sector. The crux of the dispute is whether the latter two sets of rights are mutually exclusively. Union counsel submitted employees are entitled to exercise both sets of rights when their work is relocated and privatized at the same time. According to counsel for the employer, Appendix 13 applies only to the movement of work within the public service, not to a transfer of work from the public service to the private sector.
Counsel for the union noted the property and buildings at CNCC will continue to be owned by the provincial government, regardless of who manages the site, and the location of this correctional centre was determined by the government. Counsel also argued the application of Appendix 13 should not depend upon whether the work to be performed at CNCC is initially done within the public service and later privatized or this work is privatized at the same time as it is moved to CNCC.
Turning to the language of Appendix 13, union counsel contended the reference in paragraph 2(b) to Appendix 9 indicates the parties intended relocation costs to be reimbursed where work is both relocated and privatized. According to this line of argument, if this was not the intention, there would be no reason to refer to Appendix 9 which deals with privatization. In this regard, counsel noted paragraph 2(b) does not refer to only part of Appendix 9, but rather confers “full access to the provisions of ... Appendix 9.”
Counsel for the employer argued “relocation” in Appendix 13 means relocation within the public service. Noting Appendix 13 makes no mention of privatization, counsel drew my attention to Appendix 18 which deals with privatization in detail but does not confer any entitlement to reimbursement for moving expenses. As to the reference to Appendix 9 in paragraph 2(b) of Appendix 13, employer counsel contended this paragraph does no more than create an entitlement to monetary benefits, those described in paragraphs 2, 3 and 4 of Appendix 9, on the part of an employee who decides not to relocate within the public service.
Employer counsel also contended the union’s interpretation of Appendix 13 creates a number of conflicts between it and Appendix 18. For present purposes, only one need be recounted. Counsel submitted employees who reject a relocation under paragraph 2(b) of Appendix 13, are entitled to exercise all rights under article 20, including those which allow a person to obtain another job within the public service through displacement or recall, whereas employees who elect not to move to a private employer, under paragraph 6C.2 of Appendix 18, have no right to remain in the public service. Based upon this reading of the collective agreement, counsel argued there would be a conflict between Appendix 13 and Appendix 18 if both apply to an employee whose work is relocated and privatized.
In reply, counsel for the union advanced an interpretation of paragraph 2(b) of Appendix 13 which avoids any conflict with Appendix 18. According to this understanding, the entitlements of an employee who rejects a change in headquarters, under paragraph 2(b), depend upon whether the person’s work is privatized when it is moved. When the relocated work is transferred to the private sector, the employee has rights under Appendix 18 but no entitlements under article 20. When the relocated work remains within the public service, the employee has article 20 rights but no entitlements under Appendix 18.
II
Appendix 13 applies when the headquarters of an operation is moved more than forty kilometres and the operation remains within the public service. Does this appendix also apply when the headquarters of an operation moves the same distance in the course of being privatized?
In answering this question, I begin with the wording of Appendix 13. The title refers to the “relocation of an operation.” Likewise, the opening sentence speaks of a “change” in the “location” of an operation’s headquarters. In both places, the language addresses a change in location. Nowhere in this appendix is there any explicit reference to privatization or to a change of employer. In other words, Appendix 13 does not expressly indicate that it applies when a change in location coincides with the transfer of work to a private-sector employer. Nor does this appendix contain any express indication that its does not apply in this sort of scenario.
In deciding what to make of this silence about a change of employer, one should bear in mind the nature of the entitlements created by Appendix 13. An employee to whom this appendix applies is entitled to reimbursement of expenses incurred in the course of relocating. If accepted, the union’s interpretation would mean employees would be entitled to be reimbursed by the Ministry for the cost of moving to take a job with a new employer. As collective agreements typically do not entitle employees to reimbursement for the cost of moving from one employer to another, even when someone’s job moves between the two, clear language would be required to create such an entitlement. The absence of language of this sort in Appendix 13 suggests the parties did not intend the entitlement to reimbursement of relocation costs to apply in the context of a change of employers.
Further support for this interpretation is found in Appendix 18. It deals explicitly and extensively with the entitlements of employees who move to a private sector employer, but says noting about moving expenses.
Interpreting Appendix 13 as not applying to a change of employer also avoids any need to read into paragraph 2(b) a limitation which is not supported by the language of this provision but is necessary to render it consistent with Appendix 18. On its face, paragraph 2(b) preserves all article 20 rights, including those relating to displacement and recall, for all employees falling under Appendix 13 who elect not to relocate. While arguing Appendix 13 applies in the context of privatization, union counsel conceded paragraph 2(b) does not preserve displacement and recall rights in the case of an employee who declines to relocate to a private employer. This concession is necessary to render Appendix 13 consistent with Appendix 18. Yet there is nothing in the language of paragraph 2(b) to suggest any employee governed by Appendix 13, who elects not to relocate, is denied displacement and recall rights. To the contrary, this paragraph expressly preserves all article 20 rights for all employees falling under this appendix who do not relocate. The union’s tortuous reading of paragraph 2(b) is rendered unnecessary by interpreting Appendix 13 as the employer suggested. According to this interpretation, this appendix applies only to employees whose work is relocated within the public service, and paragraph 2(b) preserves article 20 rights for any such employee who decides not to relocate.
The reference to Appendix 9 in Appendix 13 does not assist the union. Paragraph 2(a) of Appendix 13, dealing with reimbursement for relocation costs, does not mention Appendix 9. It is mentioned in paragraph 2(b). By allowing access to the provisions of Appendix 9, paragraph 2(b) merely entitles employees, who decline to follow their work within the OPS, to the same monetary benefits as are available, under some circumstances, to employees whose work is privatized.
This analysis leads me to conclude Appendix 13 does not apply to employees whose work is privatized. When work is relocated at the same time as it is transferred to the private sector, article 6C of Appendix 18 allows the employees affected to claim the jobs resulting with the new employer, but to do so they must be able and willing to bear any cost of relocating. Appendix 13 does not entitle such employees to be reimbursed for relocation costs. From the union’s point of view, this interpretation identifies a gap in the protection afforded to employees by the collective agreement. The decision whether to fill this gap rests with the parties to the agreement and not with an arbitrator. If they determine greater protection is warranted, it is for them to decide whether to create an entitlement to reimbursement for relocation costs, an entitlement to remain within the OPS or some other form or relief.
This part of the grievance is dismissed.
Dated at Toronto, this 8th day of February, 2001.