GSB#2011-0110
UNION#2011-0999-0004
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)
Union
- and -
The Crown in Right of Ontario (Ministry of Government Services)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Stewart McMahon Ministry of Government Services Labour Practice Group Counsel
HEARING
February 24 and May 23, 2012.
Decision
1The union has filed a policy grievance contesting, in a number of ways, the manner in which the employer interprets and administers Article 20.8 of the collective agreement. The employer has asked that certain portions of the union’s claim be dismissed on a preliminary basis as, the employer asserts, the union has failed to establish a prima facie case in those instances.
2Article 20 (in which Article 20.8 is of course found) is titled Employment Stability and is comprised of some 14 pages of collective agreement provisions. It is an elaborate and detailed set of job security provisions. As will be seen, it will not be necessary for me to set out and consider this intricate scheme in elaborate detail for the purposes of the instant decision. The parties, in their submissions before me, provided a summary analysis of the central workings of these provisions and, again for the purposes of the instant decision, the broad central parameters of the scheme are not in dispute.
3The instant grievance focuses on one aspect of the scheme which provides employees who have been declared surplus with “eligibility for assignment into temporary assignments in their own ministry in the last two (2) months of their notice.” It is the nature of these opportunities and the manner in which they are made available which is at the heart of the current dispute.
4While Article 20.8.1 is at the centre of the parties’ interpretive dispute, I set out Article 20.8 in its entirety:
20.8.1 Surplus employees shall be eligible for assignment into temporary assignments in their own ministry in the last two (2) months of their notice. Such assignments are meant to provide additional employment opportunities for surplus employees prior to lay-off. Where more than one surplus employee matches the temporary assignment, the employee with greater seniority shall be offered the temporary assignment. It is understood that such assignment of a surplus employee to a temporary vacancy has priority over Article 8 (Temporary Assignments).
20.8.2 A surplus employee shall retain his or her status in the Regular Service and current salary entitlement while placed in a temporary assignment. Placement in a temporary assignment will not constitute a promotion for pay purposes. Subject to Article 20.8.1, for placement into temporary assignments, the employer shall use the same criteria and rules as for assignment into vacancies under Article 20.3 (Redeployment).
20.8.3 An offer of temporary assignment to a surplus employee must be in writing and must specify the duration of the temporary assignment. The surplus employee shall have five (5) working days in which to accept or reject the offer of a temporary assignment.
20.8.4 Surplus employees who are occupying a temporary assignment remain eligible for assignment to permanent vacancies in accordance with the provisions of Article 20.3 (Redeployment) throughout their temporary assignment, but shall not continue to be matched to other temporary assignments during the term of the temporary assignment; however, the original temporary assignment may be extended by a maximum of three (3) months.
20.8.5 Where an employee in a temporary assignment is assigned to a permanent vacancy, the reporting date to the permanent position shall be no later than one (1) month from the date of offer, unless otherwise mutually agreed upon with the employee, the ministry with the permanent vacancy and the ministry with the temporary assignment.
20.8.6 When a temporary assignment takes place, the employee shall not be unreasonably denied the opportunity to complete any portion of training already underway. Surplus employees who refuse a temporary assignment shall continue to be considered for assignment into permanent vacancies for the duration of the surplus notice period, but not for further temporary assignments.
5In response to the employer’s request, the union filed particulars of its claim. Included in those particulars (which blend asserted facts and legal argument) are the following:
Despite the requirements of article 20.8, the Employer has failed to ensure that there is any means of tracking temporary vacancies for which posting is not required by Article 8 of the Collective Agreement. Furthermore, the Employer has failed to ensure a system of matching such temporary vacancies with surplus employees, or to make any arrangements for the tracking or matching. Article 20.8 entitles employees in the last two months of their surplus notice period to placement into temporary vacancies in their own Ministry. Appendix 40 requires the Employer to encourage Ministries to place employees who are “Impacted Employees" within the meaning of Appendix 40 into temporary vacancies within their own Ministries.
The absence of any mechanism for identifying or tracking such vacancies, and for matching such vacancies to surplus employees, is a failure by the Employer to properly administer Article 20.8 of the Collective Agreement.
The Employer is in violation of Article 20.8 by not considering temporary positions occupied by Fixed Term Employees [“FXT”] which are coming up for renewal. By failing to consider such positions, the Employer is improperly subordinating the Article 20.8 rights of surplus employees to Fixed Term employees. Neither the Ministries nor the Redeployment Services Office of the Ministry of Government Service[s] are considering existing assignments to FXT employees to determine whether a viable vacancy exists for assignment to a surplus Regular employee. Temporary positions occupied by Fixed Term [employees] which are coming up for renewal should be considered for assignment to surplus employees rather than being renewed.
The same is true of temporary positions occupied by FXT employees which are not coming up for renewal. It is OPSEU’s position that surplus employees should displace FXT employees in temporary assignments and have the right to do so pursuant to Article 20.8 of the Collective Agreement. Failure to assign such vacancies to surplus employees is a violation of Article 20.8.
Furthermore, the Employer is failing to make available to surplus employees temporary assignments filled on an acting basis by other regular employees. The failure to return the acting employees to their home positions and make the temporary assignments available to surplus employees is a violation of Article 20.8.
6It is in respect of these portions of the union’s particulars that the employer asserts that no prima facie case of a violation of the collective agreement has been made out. There are essentially two issues (the latter involving three sub-categories):
7The union claims that the employer’s failure to implement any system for tracking appropriate available vacancies and matching them for assignment to eligible surplus employees is a violation of the collective agreement.
8The union also claims that the employer’s failure to consider any of the following as constituting appropriate opportunities for temporary assignments for surplus employees is also a violation. Surplus employees, submits the union, ought to be offered temporary assignments in the following