GSB#2011-0995
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and Professional Crown Employees of Ontario (Union)
Association
- and -
The Crown in Right of Ontario (Ministry of Government Services)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors
FOR THE EMPLOYER
Paul Meier Ministry of Government Services Labour Practice Group Counsel
HEARING
March 28, April 12 and May 17, 2012.
Decision
1The Board is seized with a policy dispute wherein the association alleges that the employer has contravened the collective agreement in a number of respects in carrying out surplussing of positions on August 2 and 30, 2011. The allegations are as follows:
That the employer failed to apply the memorandum of Agreement on “Transition of Employees Impacted by Transformations and Transfers” which is appended to the collective agreement to the affected employees.
That the employer failed to comply with article 12.12
That the employer failed to comply with article 27.5.2(a) and 27.5.3(a)
That the employer failed to provide pre-notices in compliance with the collective agreement by defining “work unit” and “job function” too narrowly.
That the employer violated article 27.5.2(a) by failing to give “as much notice as possible” when surplus is less than full complement.
That the employer contravened article 27.5.2 by failing to provide pre-notice in writing in less than full complement surplus situations.
That the employer is in violation of a September 2008 Memorandum of Agreement by employing fee for service consultants in work units or branches where employees had received pre-notice that their positions are being eliminated.
That the employer contravened article 27.14 and Interpretive bulletin No.4 dated June 14, 1996 by failing to provide accurate information to employees about job security entitlements.
That the employer violated article 27.14.1 by failing to provide complete information on (a) severance entitlements and (b) employment insurance eligibility at group training sessions.
2At the commencement of the hearing counsel for the Association advised that the Association was withdrawing allegations 7 and 8, on a without precedent and prejudice basis.
3Following submissions, I ruled that in order to maximize efficiency, the remaining allegations, except for allegation no.4, would be dealt with together, and that allegation no,. 4 would be heard separately on subsequent dates, once disclosure/particulars are completed. Accordingly, the hearing proceeded on allegations 1, 2, 3, 5, 6 and 9.
4Counsel stated that it was not the Association’s goal to have the surplussing process that it claims was not compliant set aside or voided. Rather, the intention was to have the Board rule on the employer’s obligations under the various provisions at issue, as guidance for the future. Therefore, the Association`s remedial request is limited to declarations of violation.
5In order to determine the disputes between the parties, the Board must interpret the relevant provisions of the collective agreement and apply them to the surplussing process that took place. The facts relating to that process was presented largely through documentary evidence. The only viva voce evidence was tendered by the Association through its Director of Dispute Resolution, Mr. Rob Smalley. Mr. Smalley testified about the employer`s process, and the difficulties that process posed to the affected employees and for the association in pursuing rights under the collective agreement.
6In undertaking the task at hand, the Board must and will have regard to some fundamental and well settled rules relating to interpretation of collective agreements. The ultimate goal in interpreting a provision of a collective agreement is to ascertain, as best as it can be done, the intention of the parties. In this regard, arbitrators have often cited and relied upon the following passage from Halsbury’s Laws of England relating to interpretation of written instruments:
The object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit.
But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written: to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation, equivalent to the intention.
7It follows from the foregoing that there is a presumption that the parties intend what they have expressed. Where there is no ambiguity in what the parties have expressed, effect must be given to that notwithstanding any unfairness or inefficiencies that may result. A related principle is that in interpreting collective agreements, it must be presumed that all of the words used are intended to have some meaning and are not intended to be mere verbiage without significance. (See generally, Brown & Beatty, Canadian Labour Arbitration, at 4:2000). With the foregoing principles in mind, I turn to the specific disputes.
8Allegation No: 1
A Memorandum of Agreement dated April 27, 2009 titled “Transition of Employees Impacted by Transformations and Transfers” (“MOA”) is appended to the collective agreement. Its preamble reads:
The parties have agreed to work collaboratively to facilitate the transition of employees who will be directly impacted by transformations and transfers. Pursuant to Article 27 of the Collective Agreement the parties have agreed to the following to facilitate the successful transition of AMAPCEO represented employees:
Thus the preamble indicates that the goal of the MOA is to make provision for the successful transition of employees “who will be directly impacted by transformations and transfers”.
Section 1 titled “Definitions.” defines “Impacted employee(s).” as follows:
Impacted Employee(s) shall mean AMAPCEO represented regular employees from Transformation Programs who will be declared surplus as a result of the transformation.
“Transformation program(s)” in turn is defined as follows:
Transformation program(s) refers to programs and/or services that will transform in such a way that 50 or more OPS employees, of which 10 or more are AMAPCEO represented employees, will be declared surplus, and disclosure identifying the Impacted Employees has been provided to AMAPCEO, and does not include a “sale of a business” pursuant to section