GSB#2011-0758, 2011-0803, 2011-0830, 2011-0835, 2011-0836, 2011-1281, 2011-2112, 2011-2972

UNION#2011-0202-0005, 2011-0446-0003, 2011-0546-0006, 2011-0599-0002, 2011-0599-0003,

2011-0446-0004, 2011-0599-0009, 2011-0446-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Perretta et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Revenue)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

HEARING

February 15, 2012.

Decision

1I have before me seven group grievances that were signed by more than 200 employees at different locations and one individual grievance. The grievances were signed by Ministry employees affected by the Employer’s Sales Tax Reform Initiative (“the STR Initiative”) whereby Ontario converted to a single sales tax, the Harmonized Sales Tax (“HST”), to be administered by the Canada Revenue Agency (“CRA”). The grievances allege that the Employer contravened the management’s rights provision of the Collective Agreement. The “Statement of Grievance” provides as follows: “We grieve that the employer has violated Article 2.1 of the collective agreement by failing to provide incentive pay for staff divested through the sales tax reform project when they did provide it under the corporate sales act divestment. This change is an inconsistent, unfair and unjust use of management’s rights.” The remedy sought is “the payment of an incentive to impacted Retail Sales Tax Staff in the amount of 1 week for every completed year of service, on the same terms and conditions that it was provided to staff transferred under the Corporate Tax Act Redesign project.”

2Although the Employer has more than one objection to the grievances, the parties agreed to only address the Employer’s contention that the GSB has no jurisdiction over the subject matter of these grievances. The Employer’s motion to dismiss the grievances for lack of jurisdiction is based on the absence of a requirement in the Collective Agreement for it to provide incentive pay to Ministry employees affected by the STR Initiative who accepted job offers from the CRA. The Union argued that the subject matter of the grievances has a sufficient connection to the Collective Agreement to make the grievances arbitrable.

3Counsel made their submissions on the basis of an agreed statement of fact. For the purposes of this motion, the facts giving rise to the grievances and to the Employer’s motion are as follows.

4In October of 2006, Ontario and the federal government executed an agreement providing that the CRA would administer a single corporate tax on behalf of Ontario (“the CTR Initiative”). In July of 2007, the Ministry concluded a Human Resources Agreement (“CTR HRA”) with the federal government to obtain the best possible employment arrangements for its CTR Initiative –impacted employees. The CRA required a sufficient number of auditor positions to ensure the continuity of corporate tax knowledge and revenue generation, but did not require administrative and operational staff. As well, the auditors required by the CRA would have to make their job offer acceptance decisions in the face of a number of uncertainties, including geographic uncertainty, given that the CRA did not have Durham region offices and Ministry auditors worked at Pickering, Whitby and Oshawa, and financial uncertainty, given that legislation to provide CTR Initiative-impacted auditors with the option of transferring their pension assets was not tabled in the Legislature until just before their transfer date, on or about April 3, 2008.

5Following the efforts of a Ministry and OPSEU working group, the Ministry and OPSEU entered into a Memorandum of Agreement (“the 2007 Agreement”) to address the transfer of OPSEU employees to the CRA. The relevant provisions of the 2007 Agreement are as follows:

1. The parties agree that the Ministry of Revenue has made a reasonable attempt to conclude a Human Resources Agreement with the Canada Revenue Agency (CRA), in accordance with Appendix 18 and related articles of the OPSEU Collective Agreement.

2. The parties further agree that OPSEU-represented employees who are offered, and accept, employment with the Canada Revenue Agency pursuant to the Human Resources Agreement:

Will receive severance entitlements pursuant to Article 53 or 78 of the Collective Agreement, and

Will receive a job offer acceptance incentive in the amount of one week’s pay for every completed year of continuous service.

8. This agreement is made without prejudice or precedent.

[6] In November of 2007, the CRA offered jobs to 329 CTR Initiative-impacted employees under the CTR HRA. Ultimately, 304 of these employees did accept job offers from the CRA as of the transfer date. A total of 155 administrative and operational staff did not receive CRA job offers.

7As noted previously, the grievances before me arose out of the STR Initiative. On March 26, 2009, as part of the Budget, Minister Duncan announced that Ontario would convert to a single sales tax, the HST, to be administered by the CRA. The Legislature subsequently approved the introduction of the HST and established July 1, 2010, as the effective date for the new tax system. On or about November 9, 2009, the Ministry and the CRA entered into an agreement wherein the CRA assumed responsibility for various tax administration services formerly performed by the Ministry in relation to the Retail Sales Tax Act (“RSTA”). Notably, the STR Initiative did not involve the transfer of Ministry work to the CRA as the HST’s implementation involved increasing the percentage of tax that the CRA already collected as Goods and Services Tax.

8To understand the impact of the new tax system, the Ministry conducted an analysis of its RSTA-related work. It identified 1550 positions that performed varying percentages of RSTA-related work, spread across 13 Ontario communities. With respect to these positions, the Ministry estimated that the equivalent of 1253 full-time positions performed RSTA work. Therefore, the move to a federally administered single sales tax impacted approximately one-half of the full-time positions of the Ministry.

9In March of 2010, the Ministry entered into a Human Resources Agreement (“STR HRA”) with the federal government to obtain the best possible employment arrangements for its STR Initiative-impacted employees. Under this agreement, all 1253 STR Initiative-impacted employees received guaranteed CRA job offers. With respect to the OPSEU bargaining unit, the Ministry secured job offers with the CRA for a total of 744 employees. The CRA job offers contained benefits and terms and conditions of employment that were comparable to, or that in some instances exceeded, those that the employees had enjoyed with the OPS, including under the OPSEU Collective Agreement. As well, the CRA opened new offices in Whitby and Oshawa to accommodate oncoming STR Initiative-impacted staff.

10On or about March 9, 2010, the Ministry published a Q & A document which it distributed to all Ministry employees. This document included the following two questions and answers at pages 13-14:

41. Will there be any incentives offered to accept positions with the CRA?

There are no incentives being offered to employees. Senior Management is satisfied that the HRA negotiated kept the interests of our impacted employees first and foremost. One hundred job offers, in geographic regions that match ours, and with salary and job protection guarantees are notable achievements.

42. How does this agreement compare with the HRA negotiated for the ministry’s corporations tax employees?

Ontario was able to achieve 100 per cent job offers for all employees impacted by the HST implementation, which was not the case for the CTAR. This is significant given the current economic climate and the fact that the CRA is not assuming any of our work in progress as they did for corporations tax.

11CRA job offers for “Wave 1” STR Initiative-impacted employees were rolled out on or about June 25, 2010 and CRA job offers for “Wave 2” staff were rolled out on or about December 17, 2010. Employees who accepted job offers have commenced or will commence CRA employment on either November 25, 2010 (for Wave 1) or March 1, 2012 (for Wave 2).

12As a schedule B Negotiated Transfer, the circumstances of the STR Initiative and the affected employees are governed by Appendix 18 of the OPSEU Collective Agreement. Particular reference was made to the following:

6.4 Employees who accept a job offer in accordance with Article 6.1.1 with a receiving employer will be deemed to have resigned effective the date they commence employment with the new employer, and no other provisions of the Collective Agreement will apply except for Article 53 or 78 (Termination Pay).

6.6 Where the salary of the job offered by the receiving employer is less than eighty-five percent (85%) of the employee’s current weekly salary, or if the employee’s service or seniority are not carried over to the receiving employer, the employee may decline the offer. In such a case, the employee may exercise the rights prescribed by Article 20 (Employment Stability) and/or paragraphs 2 to 5 of Appendix 9. The employee must elect whether or not to accept employment with the receiving employer within three (3) days of receiving an offer. In default of election, the employee shall be deemed to have accepted the offer.

8.3 When an employer signs a transfer agreement with a hospital, municipality or other employer in respect to transfers under Schedule B, the employer agrees that OPSEU will be provided with a copy of the transfer agreement that the employer has signed with the municipality, hospital or other receiving employer. If OPSEU believes that the transfer agreement is not in compliance with Article 6.0, OPSEU may refer the matter to mediation/arbitration within a seven (7) calendar day time period and the matter must be resolved within that time period.

13With both the CTR Initiative and the STR Initiative, employees who accepted a CRA job offer did not carry over their seniority. The only rights they enjoyed upon accepting the CRA job offer were pursuant to 6.4 of Appendix 18 of the Collective Agreement. The Ministry and OPSEU did not enter into any Memorandum of Agreement in respect of the STR Initiative, let alone a provision that provided for a job offer acceptance incentive.

14In support of the Employer’s position that the GSB lacked jurisdiction to adjudicate these grievances, Employer counsel referred me to the following decisions: OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB Nos. 2003-0905 et al. (Dissanayake); OPSEU (Sutherland) and Ministry of Labour (2008), GSB No. 2006-0519 (Dissanayake); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2001-1151 (Abramsky); OPSEU (Nadeau et al.) and Ministry of Transportation (2009), GSB No. 2007-3497 (Gray); OPSEU (Vitorino et al. and Ministry of Government Services (2010), GSB Nos. 2009-1293 et al. (Abramsky); and, Re Cuddy Food Products and U.F.C.W., Locs. 175 & 633 (2003), 2003 CanLII 89628 (ON LA), 121 L.A.C. (4th) 56 (Etherington). Union counsel relied on the following decisions: Re United Electrical Workers , Local 512 and Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville); OPSEU (Union) and Ministry of Community, Family and Children’s Services (2004), GSB Nos. 2000-0447 et al. (Leighton); OPSEU (Union) and Ministry of Revenue (2010), GSB No. 2010-0045 (Leighton); OPSEU (Beek et al.) and Ministry of Community Safety and Correctional Services (2007), GSB Nos. 2004-1463 et al. (Petryshen); and, OPSEU (Williams/Barber) and Ministry of Correctional Services (1991), GSB Nos. 1448/90 et al. (Samuels).

15Having reviewed the facts and having considered the submissions, I am satisfied the grievances are problematic in a number of respects. Article 8.3 of Appendix 18 provides that a transfer agreement can be challenged by OPSEU within a narrow time frame. In this instance however there is no Union grievance challenging the transfer agreement that arose from the STR Initiative. The only challenge with respect to the transfer has been made by the grievances now before me. As well, the grievances before me rely on the incentive payment provision in the 2007 Agreement between the Ministry and OPSEU, even though that agreement was made “without prejudice or precedent”. Although unnecessary to decide whether one of these features would be fatal to these grievances, I mention them simply to illustrate that the grievances raise a number of challenges for the Union.

16I agree with the Employer’s contention that the GSB does not have jurisdiction to deal with the grievances. As Employer counsel argued, the basis of the monetary claim being made here is a classic “me too” argument. The employees affected by the STR Initiative claim entitlement to an incentive payment simply because employees affected by the CTR Initiative were offered an incentive payment. The key difference is that the incentive payment provided for in the circumstances of the CTR Initiative was a term of the 2007 Agreement and that there is no Collective Agreement provision which obliges the Employer to provide for an incentive payment to employees impacted by the STR Initiative. I disagree with Union counsel’s contention that there is a link between the claim advanced here and the Collective Agreement. The following comments at page 7 in OPSEU (Sutherland), supra, are applicable in this case: “…I agree with employer counsel that the union’s claim amounts to a “me too” argument, which this Board has repeatedly rejected in the absence of a link to a substantial right under the collective agreement, i.e. that it resulted in a violation or abridgement of a right under the collective agreement. The Board has held that it has no jurisdiction over a grievance which alleges that the employer had failed to treat equals in similar fashion when exercising its management rights.”

17It is arguable that incentive pay was warranted in the CTR Initiative but not in the STR Initiative having regard to the different circumstances in these Initiatives. Nonetheless, on one level, one can appreciate why some employees affected by the STR Initiative may feel unfairly treated. However, whatever the reasons for offering the incentive in one situation but not in the other, the absence of a Collective Agreement provision to base the monetary claim being advanced here leads me with no alternative but to conclude that the GSB has no jurisdiction to hear these grievances.

18For the forgoing reasons, these grievances are dismissed.