GSB# 2004-1760
UNION# 2004-0999-0017
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)
Union
- and -
The Crown in Right of Ontario (Management Board Secretariat)
Employer
BEFORE
Susan L. Stewart
Chair
FOR THE UNION
Richard Blair Ryder, Wright, Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
David Strang Acting Associate Director Management Board Secretariat
HEARING
September 20 and October 27, 2004.
Decision
The grievance before me is a policy grievance dated September 13, 2004. The issue raised in the grievance is the qualification for payment of relocation expenses in connection with a relocation of an operation’s headquarters. This issue arose in connection with a relocation of headquarters of the Shared Services Bureau. The parties were able to resolve the specific dispute on a without prejudice basis, however they have requested a ruling with respect to the interpretation of the Collective Agreement.
It is the position of the Union that the effect of Appendix 13 of the Collective Agreement is that employees are entitled to the benefits of the Relocation Expenses Directive where there is move in residence pursuant to a change of an operation’s headquarters outside a 40 kilometer radius of the current headquarters without further qualification. Specifically, it is the Union’s position that the move need not meet the distance requirement of 125 kilometers as set out in the Directive. It is the position of the Employer that in accordance with the terms of the Relocation Expenses Directive, entitlement is based on fulfilling the criteria of a move in residence of 125 kilometers.
The relevant provisions of the Collective Agreement read as follows:
Article 6 – Posting and Filling of Vacancies or New Positions
6.5 Relocation expenses shall be paid in accordance with the provisions of the Employer’s policy.
Article 11 – Headquarters
11.7 Employees who relocate their residences because of a change in headquarters, other than a temporary or seasonal change, in accordance with this article, shall be deemed to have been relocated for the purposes of the Employer’s policy on relocation expenses.
APPENDIX 13
RELOCATION OF OPERATION BEYOND
40 KILOMETRE RADIUS
MEMORANDUM OF AGREEMENT
BETWEEN
(MANAGEMENT BOARD OF CABINET)
“the Employer”
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
“the Union”
IN THE MATTER OF:
Relocation of an Operation Beyond a 40 Kilometre Radius
The Employer and the 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) shall not apply.
The parties were able to expedite this proceeding by agreeing to the following facts:
Prior to the commencement of collective bargaining – in March, 2000 – the Employer advised its bargaining agents, by letter dated March 24, 2000, of a change in the Relocation Expenses Directive “to provide reimbursement of eligible relocation expenses for moves of 125 Km or more”
During collective bargaining for the current collective agreement, specifically on December 18, 2001, the Employer negotiators provided the Union with a document entitled “Bargaining Agenda of the Government of Ontario for Negotiations With Ontario Public Service Employees Union”.
In that document, under “other issues”, the Employer specifically drew the attention of the parties to the “current policy on relocation expenses in light of this provision”, specifically in reference to Article 6.5 of the Collective Agreement.
On the following day, the Union advised the Employer that they had received prior notification regarding the policy, and the Union had no questions regarding this issue. The Union was also provided on that day with a copy of the then current (April 2000) Relocation Expenses Directive.
There were no further discussions during collective bargaining concerning the Relocation Expenses Directive in the context of Article 6.5, Appendix 13, or otherwise.
The April 1, 2000 Directive referred to in paragraph 4 notes at its commencement that all references to 40 kilometers have been changed to 125 kilometers and includes the following under the heading “Application and Scope”:
This directive applies to employees who are moving from the principal residence they own or rent to either a newly purchased residence or newly-rented accommodation.
This directive applies to relocations where the road distance, when measuring the shortest distance, between the new place of employment and the new residence is at least 125 kilometres less than the road distance between the new place of employment and the old residence.
There was no dispute that the Employer provided appropriate notice of change to the Relocation Directive, allowing the Union the opportunity to have the matter addressed at the bargaining table. The Union asserts, however, that employees who accepted a change in headquarters location pursuant to Appendix 13 were never subject to a requirement that the actual move be of a certain distance as a condition of reimbursement for moving expenses and that this situation remained after the change in the policy. The only restriction, in Mr. Blair’s submission, was that the new headquarters be beyond a 40 kilometer radius of the original headquarters, at which point the employee is entitled to relocation expenses outlined in the policy as long as the employee moves any distance closer to the new headquarters. He emphasized the use of the phrase “deemed to have been relocated for the purposes of the Employer’s policy” in Article 11.7 and the phrase “eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy” in Appendix 13, and contrasted that language with the language of Article 6.5 of the Collective Agreement, which simply provides for payment of relocation expenses “in accordance with the provisions of the Employer’s policy”. Mr. Blair argued that there is a basis in principle for different treatment of employees who claim relocation expenses pursuant to Article 6.5 and those who claim those expenses pursuant to 11.7 and Appendix 13. He noted that in the former case the employee has applied for a vacancy and thus there is a voluntary aspect to the ultimate move, while in the latter case the employee is moving as a result of the Employer’s decision to change the location of headquarters and submitted that it is not surprising that the employee who moves as a result of an Employer initiative would be treated more generously. Mr. Blair argued that this analysis is consistent with the approach taken by the Employer at negotiations, where specific reference was made to Article 6.5, while no reference was made to 11.7 or Appendix 13. Mr. Blair also noted that terms of a Collective Agreement prevail over a policy, a matter that is specifically referenced in the Relocation Directive.
In his submissions, Mr. Strang noted that Article 11.7 and Appendix 13 specifically make reference to the relocation policy. It was noted that Appendix 13 is triggered when there is a relocation of the headquarters of an operation beyond 40 kilometers but that acceptance of the relocation has the result only that an employee is entitled to the benefit of the terms of the policy, circumscribed specifically in that policy by the 125 km requirement. Mr. Strang emphasized the use of the phrase “eligibility for reimbursement” that is to be “in accordance with” the Employer’s relocation policy. He submitted that there is nothing inherent in the word “eligible” that suggests that the terms, specifically the qualification of 125 kilometers, would not apply and that, rather, the language suggested the contrary. Mr. Strang made further submissions, which included reference to certain decided cases, however I will not review those submissions, as it is unnecessary to do so to determine this matter.
The argument that Mr. Blair advanced on behalf of the Union was inventive, however I did not find it to be persuasive. In my view, if the parties had agreed that the policy would apply as the Union suggests, they would have employed different, more explicit language to express such an intention. Article 11.7 and Appendix 13 on their plain reading, simply provide for the application of the relocation policy where employees move as a result of the relocation of headquarters and Appendix 13 establishes 40 kilometers for the relocation of headquarters as a threshold for its application. While somewhat different language is employed in Article 11.7 and Appendix 13 than is utilized in Article 6.5, it is my view that the difference in language cannot support the conclusion that the distance requirement of the policy in relation to the move of residence was not intended to apply. The reference to “deemed to have been relocated for the purposes of the Employer’s policy on relocation expenses” in Article 11.7 and “eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy” and in Appendix 13 clearly contemplate the application of the policy. There is nothing in those provisions that addresses the distance of the residential move and thus there is no violation of the Collective Agreement in the application of the 125 kilometer requirement. While the language in those provisions differs somewhat from the language of Article 6.5 which provides “for payment in accordance with the Employer’s policy”, the difference does not suggest the conclusion urged upon me by Mr. Blair. That conclusion, in my view, goes beyond an interpretation that the plain words chosen by the parties can bear. I agree with Mr. Strang’s submission that the relevant language clearly and simply operates to bring employees to whom Appendix 13 applies and who elect to accept the change in headquarters location within the ambit of the policy, which includes a 125 km distance requirement as a basis for entitlement for reimbursement for residential moves. In my view, the negotiating history does not advance the Union’s case. The Employer first advised of the amendment to the policy in general terms prior to bargaining and again at the bargaining table. The Employer did not make reference to all of the places in the Collective Agreement where the Relocation policy is referred to when it again brought the matter to the Union’s attention at the bargaining table, however it clearly identified the policy and the application for other provisions of the Collective Agreement where the policy is specifically referenced is implicit. The application of Appendix 13 is triggered by a relocation of headquarters outside of a 40 kilometer radius, however, upon such a trigger and an employee electing under 2(a) to accept the change in headquarters location, the employee’s entitlement to benefits for moving expenses is limited by the term of the policy which establishes the 125 kilometer requirement in relation to a move of residence.
For the foregoing reasons it is my conclusion that a violation of the Collective Agreement has not been established and the grievance is therefore dismissed.
Dated at Toronto, this 17th day of December, 2004