GSB# 2002-0610

UNION# 02U142

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 (Management Board Secretariat)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Donald Eady Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Mr. Stephen Patterson Associate Director, Labour Practice Group Management Board Secretariat

HEARING

October 15, 28, November 18, 22, December 6, 2002; January 27, March 5 & April 30, 2003.

Decision

The Crown in Right of Ontario and the Ontario Public Service Employees Union (hereinafter referred to as the “Union” or “OPSEU”) entered into Memoranda of Settlement dated May 2, 2002, which were ratified on May 5, 2002, settling the terms of renewal Collective Agreements. The Union filed a policy grievance dated June 27, 2002, in response to an announcement by the Employer that it planned to reconcile and implement retroactive adjustments on October 10, 2002. In its grievance, the Union claims that the Employer is failing to implement the Memoranda of Settlement in good faith and specifically that “the employer is failing to pay the adjustment to the wage rates retroactively to January 1, 2002, as soon as reasonably possible after ratification” and requests that the Employer promptly pay the retroactive adjustment with interest. The Employer takes the position that the retroactive adjustments were paid as soon as reasonably possible after ratification. There was no challenge to my jurisdiction to hear and determine this grievance.

The Union’s request for interim relief was heard on August 30, 2002. The Employer conceded that the Union had an arguable case and that its request for interim relief was not frivolous or vexatious. In a decision dated September 4, 2002, I addressed the issue of the balance of harm or inconvenience as follows:

“…As the decisions in this area suggest, the primary focus in an interim relief application is on whether the applicant has established that there are compelling reasons to alter the status quo. An alteration of the status quo may be appropriate if the harm to the applicant as a result of the alleged breach of the collective agreement cannot be adequately addressed with a remedial response at the conclusion of the proceeding.

There appears to be a high probability that the new rates of pay and all retroactivity will be paid on October 10, 2002. In other words, the Employer’s obligation to make retroactive payments will most probably be satisfied on the third pay period from this date. The Employer advises that it will know for sure whether it will meet its objective on October 1, 2002. Apart from this relatively brief period of time, the only remedy the employees will be entitled to if the grievance succeeds is damages in the form of interest on earnings from the time the Employer should have paid all retroactivity to October 10, 2002. Given the circumstances of this case, it is my conclusion that the balance of convenience does not favor the Union and its members. One can certainly understand why the Union's members would want to have received all retroactivity sooner. However, there is no basis on the facts of this case to disturb the status quo. The alleged breach in this instance can be adequately addressed with damages at the conclusion of the proceeding. Accordingly, the Union’s interim relief application is dismissed.

The hearing on the merits commenced on October 15, 2002, and required 8 days of hearing. The parties agreed to some facts and the Employer called four witnesses to explain the implementation process and why it took until October 10, 2002 to implement the wage adjustments and the final retroactive payment. The four witnesses were Mr. Bill Kent, Director of HR Services Delivery Branch, Ms. Laurie Christensen, Manager of Business Support, Mr. Ted Paradis, Manager of the Application Support Unit, and Ms. Elizabeth McKnight, Director of Corporate Labour Relations and Negotiations Secretariat. In addition to the oral evidence, there were thirty-one exhibits filed. Quite a number of these exhibits consisted of many documents, a number of which were technical in nature.

The facts agreed to by the parties are as follows. The Employer employs approximately 60,000 employees at administrative offices, correctional facilities, hospitals and other locations throughout the Province of Ontario. The Union represents employees in what were six separate bargaining units: Administrative, Correctional, Institutional & Health Care, Office Administration, Operational and Maintenance and Technical. The Union represents in excess of 45,000 Government of Ontario employees. In December 2001, the parties agreed to consolidate five of the six bargaining units into a single Unified bargaining unit. As a result, the parties negotiated Collective Agreements for two bargaining units: the Unified bargaining unit (previously consisting of the Administrative, Institutional & Health Care, Office Administration, Operational & Maintenance and Technical units) and the Corrections bargaining unit. The parties also negotiated a Central Collective Agreement covering all employees represented by the Union.

The relevant collective agreements expired on December 31, 2001. On March 13, 2002, the Union commenced a legal strike. The Work Force Information Network (“WIN”) was not designated as an essential service during the strike and therefore was not operational during the work stoppage. On May 2, 2002, the parties agreed, subject to ratification by both parties, to a new Central Collective Agreement, a Unified Collective Agreement and a Correctional Collective Agreement (“the 2002 Agreements”). Article 3 of each Memorandum of Settlement provides as follows:

3. Except as provided otherwise in the terms of the Collective Agreement, any adjustment to the wage rates shall be paid for all hours worked retroactive to January 1, 2002. Retroactive adjustments shall be paid as soon as reasonably possible after ratification by both parties…

The 2002 Agreements make the following changes to wages and salaries requiring adjustments to January 1, 2002:

1. The Unified and Corrections Collective Agreements provide for across the board increases of 1.95%, 1% for productivity and efficiency gains, and 0.55% for a special adjustment, for a total of 3.5%.

2. Special classification adjustments/salary notes amending the Unified Collective Agreement:

a. Nurse related classifications – an increase of 10% to each step in the range.

b. Scientists 1, 2, 3 and 4 – an increase of 8% to each step in the range.

c. Communications operator 1, 2 and 3 – an increase of 8% to each step in the range.

d. Salary note for OCWA.

e. Resource Technician 4 – a 4% increase.

f. Transportation Enforcement Officer – a 4% increase.

g. Technologists and Laboratory Attendants related classifications – a 4% increase

h. Classroom Assistant and School Aide – a 4% increase.

3. Special Classification adjustments amending the Corrections Collective Agreement:

a. Probation Officer 1 and 2 – an increase of 4% to all rates in the salary range.

4. The Central Collective Agreement increasing the percent in lieu of benefits for unclassified employees from 2% of basic hourly rate to 6% of basic hourly rate and expansion to part-time unclassified employees.

5. Student wage rate increases.

6. Under the Unified Collective Agreement, employees at the maximum of their ranges are eligible for an increase to their pay of 1% based on satisfactory performance. Shift Premium increase and adjustment to manner in which it is paid (effective May 5, 2002).

7. Under the Corrections Collective Agreement, an additional step on the grid of all classifications. Each step is to be 5% above the current highest step.

The previous collective agreements (January 1, 1999 to December 31, 2001) were negotiated without a work stoppage and ratified on March 27, 1999. The wage adjustments were 1% effective January 1, 1999, 1.35% effective January 1, 2000 and 1.95% effective January 1, 2001. The first year wage revisions and retroactive pay adjustments were implemented on the May 27, 1999 pay date, approximately two months after ratification. Further adjustments were reflected on the June 10, 1999 pay date.

The collective agreements for the term January 1, 1994 to December 31, 1998 were negotiated after a five-week strike in 1996 and ratified on March 31, 1996. There were no adjustments to salary rates during the life of these collective agreements. Pay in lieu of benefits of 2% was negotiated for unclassified employees during that round of bargaining. This provision was implemented sometime after August 26th, 1996, six months after the strike ended.

The Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) is the bargaining agent representing approximately 6000 Crown employees. The Employer and AMAPCEO agreed to the full and final settlement of their collective agreement (effective April 1, 2001 to March 31, 2004) on February 12, 2002, with ratification occurring on March 19, 2002. The retroactive adjustments to AMAPCEO wages, which were to be effective March 31, 2001, were delayed as a result of the strike by the Union.

Professional Engineers Government of Ontario (“PEGO”) is the bargaining agent representing some 400 Crown employees who are professional engineers, land surveyors or engineers in training. The Employer and PEGO agreed to a renewal collective agreement on August 11, 2001, with ratification occurring on August 31, 2001.

Just prior to July 31, 2002, the Employer announced on August 1, 2002 that bargaining unit employees would receive an interim retroactive payment of 3.5% of their regular earnings between January 1 and July 7, 2002. The Employer advised that any additional retroactivity owing would be paid on October 10, 2002, when the wage increases would be implemented. In a letter dated August 26, 2002, the Employer advised the Union that two additional installment payments would be paid effective September 12, 2002. On that date, all active employees received an additional 3.5% of their regular earnings for the pay period from July 8, 2002 to August 18, 2002, and classified employees in the Correctional bargaining unit at the salary maximum for a least 12 months as of January 1, 2002, received 5% of their regular earnings from January 1 to August 18, 2002.

The Employer witnesses testified in considerable detail about the way the 2002 Agreements were implemented and counsel for the Union thoroughly cross-examined each Employer witness. It is unnecessary to set out here their testimony in such detail. I will summarize their evidence taking into account those areas where the Union focused its attention and will refer to some areas in more detail when addressing some of the Union’s submissions.

The implementation process requires that changes be made to WIN and CORPAY, two systems owned and managed by the SSB. WIN is a corporate application to assist Human Resources and Payroll Management. CORPAY is a centralized payroll system. An interface between the two systems operates to carry data on employee status and changes to CORPAY to ensure that an employee gets paid. During the strike, CORPAY was operating to the extent necessary to pay those individuals who were still working.

Making the necessary changes to the systems involves a fairly complicated process utilizing the services of three groups of employees, usually working in teams. One group of employees is in the HR Service Delivery Branch and they are classified as Business Process Consultants, Tier-2 Business Analysts, Data Quality Analysts and Testers. Another group is the Payroll and Benefit Representatives (PBRs). The 270 PBRs employed within the SSB are assigned a number of employees within a particular Ministry. The other group is in the Application Support Unit and the employees here are classified as Business Systems Analysts, Application Support and Programmers. For convenience, I will refer to this latter group of employees as the tech unit staff.

The general implementation process begins with the details of the changes to a particular collective agreement being conveyed from Negotiations Secretariat in order that the required system changes can be ascertained. Once the business analysis phase is completed, the business requirements are documented to form the basis of the system design. The tech unit staff develops the technical requirements, documents them, and develops the programming code based on this documentation. Once the programming is completed, the tech unit staff performs unit testing which is reviewed by employees in the HR Service Delivery Branch. Integrated testing is then performed to ensure that the changes in WIN translate correctly into CORPAY. After testing, the process moves on to the production phase. As part of the process staff must be trained on the system changes and the new business processes.

Individuals responsible for implementing the 2002 Agreements held meetings in April 2002 to discuss post-strike planning issues. The SSB and tech unit staff were not provided with the details of any possible settlement, nor were they consulted on how best to structure a settlement in order to provide for speedy implementation. Following a meeting on April 9, 2002, a draft post-strike time line summary was prepared which set out the work which would be necessary to perform once the strike was resolved. This draft was a working document which underwent changes over time, particularly when the details of the OPSEU settlement were disclosed. The draft sets out the approximate time it will take to complete certain work under the responsibility of the SSB and when the work will commence after ratification. The essential features of this draft for our purposes are as follows:

WIN and CORPAY Reconciliation – to take two weeks starting immediately after ratification.

Post Strike Transaction &Reconciliation – to take four weeks starting in the third week after ratification.

AMAPCEO 2001 Collective Agreement – to take nine weeks starting in the fourth week after ratification.

PSA Changes – to take twelve weeks starting in the fifth week after ratification.

AMAPCEO 2002 Collective Agreement – to take eleven weeks starting in the eighth week after ratification.

OPSEU Collective Agreement – to take thirteen weeks starting in the tenth week after ratification.

MCP Salary Revision – to take five weeks starting in the twenty-third week after ratification.

MCP P4P SMG Incentive – to take six weeks starting in the twenty-third week after ratification.

PEGO P4P – to take three weeks starting in the twenty-ninth week after ratification.

There is no dispute that the WIN & CORPAY Reconciliation and the Post Strike Transaction & Reconciliation required six weeks of work in order to get both systems up and running and synchronized. It became evident after ratification that it was unnecessary to perform the PSA work during the relevant period. The 2001 AMAPCEO collective agreement was scheduled to be implemented on March 18, 2002, with the April 1, 2002 increases scheduled for implementation a short time later. As noted previously, this AMAPCEO implementation work not completed due to the OPSEU strike. Given the length of the strike, much of the work relating to the AMAPCEO collective agreement had to be redone, given there now was a longer retroactivity period. Although the draft document indicates otherwise, Ms. Christensen testified that work on the OPSEU implementation commenced within the first two weeks after ratification. The documentary evidence establishes that many of the projects, including the OPSEU implementation, were worked on simultaneously.

The business analysis phase of the OPSEU implementation involved a series of meetings and phone calls with Negotiations Secretariat to determine what changes were made in the 2002 Agreements. The business analysts and tech unit staff examined the details of these changes to determine what business processes should be established and what system changes were required. Because some aspects of the work needed to be done before others and some components of the 2002 Agreements required detailed attention due to their complexity, it was necessary to divide the work into separate projects. This resulted in the development of many documents dealing with system requirements. The amount of time necessary to complete this phase of the process is very dependent on the number of changes to a collective agreement and the complexity of the system changes.

Given the nature of the OPSEU implementation and the desire to get the work done as soon as possible, the SSB received additional funding. An amount of $675,000 was allocated for reconciliation activity to pay for overtime for PBRs and business support staff. The SSB and the Service Systems Branch, where the tech unit staff is located, received an additional $613,000 to pay for added resources such as a Business Analyst, a Tester, Application Consultants, twenty temporary PBRs and overtime for PBRs. This latter budgeted amount was exceeded to a considerable degree. Ms. Christensen testified that she was able to secure temporary help for a number of positions to assist in the OPSEU implementation. She indicated that she was able to obtain the persons with the necessary skills and familiarity with the systems that the Employer required. Mr. Kent testified that any project only requires a finite number of participants and that the addition of persons in excess of that number could have the effect of slowing down the process. He and Ms. Christensen indicated that the timing of the OPSEU implementation was not affected by a lack of resources.

It was not long after it was advised of the implementation date that the Union began to exert some pressure on the Employer to implement the 2002 Agreements sooner. Advised of the Union's concerns near the end of May, Ms. Christensen was asked if her Branch could do anything to advance the implementation date. After considering the matter she concluded that there was no way to speed up the process. Mr. Kent testified that there were further requests from Negotiations Secretariat to speed up the process and that each time they considered the issue they decided that the full implementation of the 2002 Agreements could not be achieved before October 10, 2002. Other options were considered and by July it was decided that an interim payment could be made without utilizing resources that would jeopardize the October 10, 2002 objective. The Employer secured the services of some temporary employees who had experience with CORPAY in order to make an interim retroactive payment. These persons worked primarily on a weekend and only with CORPAY. Although payroll ran late, the Employer was able to make the first interim payment on August 1, 2002. In response to further requests from Negotiations Secretariat, the second interim payment was done in essentially the same way and was paid on September 12, 2002. The interim payments required additional programming to reconcile the payments with the final payment on October 10, 2002.

After referring in considerable detail to the challenges and complexity of the OPSEU implementation, Mr. Kent, Ms. Christensen and Mr. Paradis testified that the full implementation simply could not have been completed prior to October 10, 2002. Mr. Kent indicated in retrospect that perhaps the sequencing of the work could have been different, but that this would not have altered the October 10, 2002 completion date. Mr. Paradis testified that he initially estimated that the OPSEU implementation could not be completed until December 2002 and that he was surprised that it was accomplished by October 10, 2002. Mr. Paradis testified that there were 252,000 new pay related records that were processed due to the implementation of the 2002 Agreements.

The parties agreed that the issue for determination is whether the payment of the wage increases and final retroactivity on October 10, 2002 was reasonable in the circumstances. The Union takes the position that the standard of reasonableness for payment is 90 days after ratification, not the 157 days that it actually took, and that the retroactive payments should have been made by August 4, 2002. It seeks a declaration that the Employer contravened Article 3 of the Memoranda of Settlement and an order directing the Employer to pay interest on any amount owing after August 4, 2002. In the Union's view, the interim retroactivity payments go to mitigation of the damages and not to the merits of the case.

Counsel for the Union submitted that one must be careful not to apply the requirement to pay retroactivity within a reasonable time in a manner which simply allows the Employer to determine what reasonable means. Counsel argued that there are two levels upon which one can examine the facts of this case, one level consisting of what the Employer and Union knew prior to executing the Memoranda of Settlement and the other being how the Employer chose to implement the 2002 Agreements. Counsel referred firstly to what he argued were certain critical facts which existed prior to the settlement and which, by themselves, should dispose of this matter in the Union's favour.

Counsel submitted that there is a practice between these parties of implementing the collective agreements in approximately ninety days, as evidenced in particular by the implementation of the 1999 collective agreement. Counsel argued that the Union was therefore entitled to assume in 2002 that ninety days constitutes a reasonable implementation period, particularly if the Employer does not indicate otherwise.

Counsel submitted that a number of the new provisions in the 2002 Agreements which contributed to the complexity of implementation were a result of Employer demands. Counsel argued that the complexity the Employer now relies upon to justify the delay is a function of the positions taken by the Employer during bargaining for which Union members should not be penalized.

Counsel noted that the Employer drafted the language in the Memoranda of Settlement. He submitted that having drafted the relevant provisions, particularly Article 3, that the language should be construed strictly against the Employer such that it is not entitled to obtain any benefit from any unnecessary delay.

Counsel also noted that the Employer and Union agreed to the change in bargaining structure to a Unified bargaining unit in December 2001. However, the Employer did not attempt to make changes to WIN and CORPAY to reflect this new structure until the end of the work stoppage. Counsel argued that the failure of the Employer to make these necessary changes before the strike contributed to the delay in implementing the 2002 Agreements.

Counsel further submitted that there was a lack of communication between the negotiators for the Employer and the individuals responsible for implementing the 2002 Agreements. MBS did not share any details with the SSB as bargaining progressed, nor did it seek advice as to how best to structure the settlement from a systems perspective. The SSB and the tech unit staff were not advised in advance about such matters as the 1% max issue, the special cases and the pay in lieu of benefits issue for unclassified employees, all of which the Employer says contributed to the complexity of implementing the 2002 Agreements. Counsel argued that the disconnect in this respect between the Employer’s representatives at the bargaining table and the staff responsible for implementation contributed to an unreasonable delay in the implementation process.

Counsel emphasized that the Employer knew at the time of the settlement that it could not implement the increases and retroactivity until October 2002, or later, and it did not tell the Union. Counsel submitted that if the Union had been advised of the Employer's knowledge about implementation, the parties could have discussed the matter and addressed the issue in a way which may have contributed to an earlier implementation date.

In addressing the actual implementation of the 2002 Agreements, the Union did not suggest that individuals were not working hard enough or were not doing their best. However, it took the position that certain facts and inferences from these facts established that 157 days for implementation was unreasonable. Counsel noted that some of the facts relevant to this portion of the argument were related to some of the facts referred to the earlier submissions.

Counsel referred to Ms. McKnight’s testimony where she stated that a number of collective agreements came up for renewal beginning in 2001 and that the Employer was confronted with “an olympic year of bargaining”. Counsel argued that there were no significant resources allocated to the SSB or to the tech unit to effectively deal with the increased workload.

Noting that there was an excessive amount of work to be done at the same time, counsel submitted that the Employer was required to establish priorities and stagger the work, and that it did so without any consultation with the Union. Although not suggesting that the Employer should have implemented the 2002 Agreements before the AMAPCEO collective agreement, counsel submitted that insufficient resources were allocated to the AMAPCEO implementation, which had the effect of delaying the OPSEU implementation. Counsel submitted that the decision to give priority to various pieces of work should not prejudice OPSEU members and that the Employer should pay for the cost associated with any unreasonable delay attributable to these decisions.

Counsel also submitted that the Employer paid some attention to implementation and made two interim retroactivity payments once the Union complained about the time lines and eventually filed its grievance. He noted that the amount of work associated with the interim payments was not considerable. Counsel argued that the fact that the Employer made interim retroactivity payments in response to pressure from the Union demonstrates that full implementation could have been carried out sooner. Counsel also submitted that the tech unit staff was not instructed to speed up their part of the process.

Counsel further submitted that the delay in the implementation process was not related to the programming and testing phases and what came after, but occurred because of the delay on the part of Negotiations Secretariat in providing clear instructions about the nature of the changes to the 2002 Agreements and how to implement them. Referring to the timing of the June 26, 2002 OPSEU implementation “kick-off” and the delivery of the business requests, counsel argued that the time it took to determine what the changes were and to whom they applied was unreasonable.

Counsel referred to the fact that the SSB and the tech support staff were often faced with options when it came to implementing changes to the 2002 Agreements. At times, the choice was between an option that would take more time and improve the system in the long run and options which would not take as much time. Counsel argued that in the case of the 6% in lieu of benefits provision the Employer chose the option which took significantly more time to implement. Counsel submitted that this was unreasonable in the circumstances and that Union members should not be expected to pay for the delay caused by this Employer decision.

In support of the Union’s position that anything more than approximately ninety days to implement the 2002 Agreements is unreasonable, counsel referred to Re Health Employers Association of BC and Health Services and Support Community Subsection Association of Bargaining Agents, an unreported decision of arbitrator V. Ready dated April 15, 2002. This case concerned the failure of a number of employers to pay wage increases which had been the subject of a mediation/arbitration award dated July 17, 2001. For the most part, the monetary changes were across the board increases and there was no provision which specifically addressed implementation. Some of the employer members of the Association had implemented all the increases, while some had not. The union took the position that the employers should have implemented retroactivity no later than ninety days subsequent to the July 17, 2001 award. Finding in favor of the union, the arbitrator concluded that ninety days constitutes a reasonable amount of time in all of the circumstances to implement the negotiated increases. Notwithstanding the employer’s argument that the methodology required to implement some of the increases was complex, the arbitrator concluded that the required calculations could have been made within ninety days. After noting that a number of employers were able to implement the increases in less than ninety days, the arbitrator indicated that “this begs the unanswered question as to why other employers could not do so”.

Given my disposition of this matter, it is unnecessary to reiterate counsel for the Employer’s response to each of the Union's submissions. Counsel for the Employer noted that the 2002 Agreements contained a significant number of additions and revisions which translated into a high degree of detail and complexity when it came to making the necessary changes to WIN and CORPAY. Counsel submitted that the Employer made all reasonable efforts in the circumstances to implement the 2002 Agreements as soon as possible, while performing the usual payroll functions. He noted that the Employer provided a budget for the first time to implement the 2002 Agreements and that it hired the necessary personnel possessing the expertise to perform the required tasks. Although Mr. Kent thought that the sequencing of the work might have been done differently, counsel emphasized that Mr. Kent, Ms. Christensen and Mr. Paradis expressed the view that the final implementation could not have occurred any sooner than October 10, 2002, and that they thoroughly supported the basis for their views. Counsel submitted that the Union has not raised any issues which should cause me reach a conclusion different from the one expressed by the Employer witnesses. Counsel requested that I dismiss the Union's grievance.

In the Memoranda of Settlement, the parties specifically addressed the issue of implementation by placing an obligation on the Employer to pay the retroactive adjustments as soon as reasonably possible after ratification. Although it agreed that the appropriate test involves a consideration of what is appropriate in the circumstances, some of the Union's submissions appeared to suggest that the Employer was obliged to implement the 2002 Agreements within approximately ninety days of ratification, regardless of the circumstances. The language in Article 3 of the Memoranda of Settlement makes it clear that the parties did not agree to a specific date for implementation, which they obviously had the option of doing. In my view, the effect of the language is that the parties agreed that the Employer would implement the terms of the 2002 Agreements and pay retroactivity as soon as possible in the context of the particular circumstances. There are, of course, various factors which could impact on the timing of implementation, including the number and nature of the changes, the complexity of the changes from a systems perspective, the resources available to the Employer and other work demands, some of which might also be time sensitive. Given the thoroughness of the Union's approach in this matter, these factors and others were explored in considerable detail. In my view, the fact that particular circumstances impact on its ability to implement the changes does not mean that the Employer has an unfettered right to select an implementation date. The Employer could breach its obligation under Article 3 if it did not implement the 2002 Agreements as soon as reasonably possible after ratification and it would be directed to pay damages to the extent that the delay is unreasonable.

The decision the Union relies upon is only helpful to the extent that it confirms that arbitrators will allow an employer a reasonable amount of time to implement negotiated increases in the absence of an agreement on implementation. However, I agree with counsel for the Employer that the decision is not particularly helpful in the context of the case at hand. Although the arbitrator determined that ninety days constitutes a reasonable amount of time for implementation, it is unclear what circumstances led to this conclusion. What appears to have been significant for the arbitrator is the fact that some employers implemented the pay increases in less than ninety days and there was no explanation as to why the other employers were unable to do so. In the matter before me, one is not able to make such a comparison and the Employer has provided detailed explanations for the timing of implementation.

Before addressing those factors relied on by the Union which predated the Memoranda of Settlement, I would like to comment generally with respect to this aspect of the Union's submissions. When executing the Memoranda of Settlement on May 2, 2002, the parties agreed as of that time to the Employer’s implementation obligation. In my view, an assessment of whether the Employer has met its obligation requires an examination of post ratification events and, as a general proposition, what occurred prior to ratification is not particularly relevant.

The Union's position that there is a past practice of implementing OPSEU collective agreements in approximately ninety days is not supported by the evidence. While the 1999 collective agreements, with only simple across the board increases, were implemented in less than ninety days, it took at least five months to implement the 1996 collective agreements when the only relevant change was a 2% in lieu of benefits provision for unclassified employees. There is no evidence about the implementation of other collective agreements. In addition to how long it takes to implement a collective agreement, it is necessary to consider what changes were implemented and in what circumstances before one can conclude that there is a relevant practice. It would not be reasonable on the basis of the evidence for the Union to expect that the 2002 Agreements would be implemented in approximately ninety days, given that the circumstances in 2002 were significantly different from those in 1999 and 1996.

Although the Employer proposed many of the terms contributing to the complexity of the 2002 Agreements, the Union agreed to them. The fact that the complexity is enhanced by proposals from one party or the other is not a relevant consideration in circumstances where a settlement requires the agreement of both parties.

Counsel for the Employer conceded that the words in Article 3 might be strictly construed against the Employer, given that the Employer was responsible for drafting the provision. I agree with counsel for the Employer’s submission that this rule of interpretation does not advance the analysis in this case since one is still left to determine whether the time that Employer took to implement the 2002 Agreements is reasonable in the circumstances.

The Employer was aware prior to the strike that some specific system changes would be required once a settlement was reached. For example, changes would have to be made to reflect the existence of the new Unified bargaining unit. Given that the Employer’s obligation under Article 3 only arises as of May 5, 2002, it is difficult to view what the Employer could have accomplished with respect to these matters prior to the settlement as relevant. To give this factor some weight would be giving retrospective application to language which does not call for such an application. There is also no evidence to suggest that the final implementation of the 2002 Agreements would have been completed sooner if the Employer had addressed these items prior to the strike.

A similar response can be made with respect to the Union's reliance on the fact that there was little communication between persons at the bargaining table and those responsible for implementation. It is not surprising that details related to collective bargaining would not be disclosed until the settlement is concluded. In any event, the failure to communicate relied on by the Union predates May 5, 2002, the time when the Employer’s obligation arises. As well, there is no indication from the evidence that the 2002 Agreements would have been implemented sooner if such communication had occurred. It also strikes me as unlikely that these parties would structure the terms of their collective agreements based on implementation considerations.

Although neither party called a witness to testify about what, if anything, was discussed at the bargaining table about the implementation of the 2002 Agreements, it is likely that there were no specific discussions about implementation. The implementation language contained in Article 3 is similar to the language used by these parties in previous settlements. The submission that the Employer had knowledge about the timing of implementation and should have disclosed this to the Union has the flavour of a bad faith bargaining complaint. Even if there were some merit to the Union’s submission, it does not alter the fact that my task is to determine whether the Employer implemented the 2002 Agreements in a reasonable time in the circumstances. The fact that the Employer did not volunteer information about implementation to the Union at the bargaining table is not relevant to this task. In retrospect, it may have been useful from a labour relations perspective for the Employer to disclose what it knew about the timing of implementation before the conclusion of bargaining. I also note that there was nothing to prevent the Union from inquiring about the timing of implementation at the bargaining table. However, it is not surprising after a long strike that the negotiators for each side would not be focused on implementation.

I turn now to deal with those factors raised by the Union which concern the actual implementation of the 2002 Agreements. The Union's submission that the Employer did not contribute significant resources to the SSB and the tech unit in order to achieve implementation sooner is not consistent with the evidence. The HR Service Delivery Branch budgeted an additional $675,000 for post strike reconciliation to compensate PBRs and business support staff for overtime necessary to complete the project in a timely fashion. In addition, the SSB and the tech unit obtained $613,000 for added resources to implement the 2002 Agreements. The Employer met its needs by securing the services of temporary employees who had the skills necessary to perform the work. The Employer witnesses provided a credible response the Union’s contention that the implementation work could have been completed sooner if more people were assigned to the work. The Employer was successful in obtaining the finite number of persons required to work on the implementation projects. On the basis of the evidence before me, it has not been established that the implementation of the 2002 Agreements took as long as it did because of a lack of resources.

The Employer did have a considerable amount of work to perform after the OPSEU strike, some of which was time sensitive, and it did make decisions to prioritize this work without consulting the Union. The AMAPCEO Collective Agreement was concluded prior to the strike and its implementation was delayed as a result of the strike. It was not unreasonable for the Employer to give some priority to the AMAPCEO implementation in the circumstances. The same can be said of the other work the Employer performed during the relevant period to the extent that any of it was given priority over the OPSEU implementation. The evidence does not disclose that the Employer’s decisions about balancing the workload had any impact on the amount of time it took to implement the 2002 Agreements. Although the initial expectation in mid-April 2002 was that work on the OPSEU implementation would commence in the tenth week after the strike ended, the Employer started on this work within a couple weeks after ratification. Having regard to such factors as the nature of the work, the Employer’s ability to secure the necessary resources for the OPSEU implementation and the performance of a lot of the post-strike work simultaneously, it is difficult to conclude that OPSEU members were prejudiced as argued by the Union. I am also not satisfied that the Employer was obliged in these circumstances to discuss with the Union how it managed various implementation issues with different bargaining agents

It is apparent that the interim retroactivity payments were made in part as a response to pressure from the Union. It appears as well that the Negotiations Secretariat was exerting internal pressure to have the OPSEU implementation process completed as soon as possible. Each time the implementation issue was raised, the consistent response from the SSB, after it revisited the issue, was that it was not possible to complete the process prior to October 10, 2002. Although it was concerned about diverting resources from and perhaps jeopardizing the completion date of October 10, 2002, the Employer determined that it could make two interim retroactivity payments. It did so by using CORPAY only and the services of temporary employees. In my view, the payment of interim retroactivity illustrates a willingness on the part of the Employer to get such payments in the hands of OPSEU members as soonas possible. The fact that these payments were made does not establish that the Employer could have completed the final implementation before October 10, 2002.

The initial part of the implementation process, the business analysis phase, did take some time. As noted previously, this phase commenced within a couple of weeks after ratification and required numerous meetings involving business analysts and individuals from Negotiations Secretariat. The number of additions and revisions to the 2002 Agreements undoubtedly affected the time it would take to complete this work. The business analysts met with tech unit staff in order to determine the appropriate systems solutions. Given the importance of this stage of the process, it is not unreasonable for the participants to ensure that the business requirements were properly formulated to provide for accurate and manageable solutions. Having examined the references made to the documentation by counsel for the Union, I am not convinced that the time spent on the initial part of the process of implementing the 2002 Agreements was unreasonable in the circumstances.

In deciding how to make changes to the systems with respect to many of the changes and revisions, the Employer did consider a number of options in many instances. On one occasion in particular the Employer chose a solution which was better from an overall systems perspective, even though it required more time to implement than other options. Based on the evidence in this respect, I am not prepared to conclude that decisions of this sort were inappropriate or unreasonable in the circumstances. Once again, there is also no indication in the evidence that the selection of different options would have resulted overall in an earlier completion of the OPSEU implementation

In summary, it is my conclusion that the factors relied on by the Union on both levels do not establish that the Employer failed to implement the 2002 Agreements as soon as reasonably possible. The 2002 OPSEU settlement was quite different from the previous two settlements in that it entailed a large number of changes and revisions, many of which required detailed and complex systems solutions. As I noted in the interim relief decision, it is entirely understandable that the Union and its members would want to obtain the monetary benefits of the settlement before October 10, 2002, particularly after a long strike. However, the evidence before me establishes that the final implementation of the 2002 Agreements by October 10, 2002, was not unreasonable.

For the foregoing reasons, I find that the Employer did not contravene Article 3 of the Memoranda of Settlement dated May 2, 2002. The Union’s grievance dated June 27, 2002, is hereby dismissed.

Dated at Toronto, this 25th day of March 2004.