In Ontario Public Service Employees Union and Ministry of
the Solicitor General and Correctional Services, GSB 1154/98, (Deborah J.D.
Leighton, Vice Chair), decision dated May 18, 2000, the GSB dealt with the
application of Appendix 13.
Appendix 13 applies when a ministry "decides to change
an operation’s headquarters". Employees get rights to notification,
relocation costs, optional surplussing, and seniority preference. The employer
wants Appendix 13 to apply to as few workplace closures as possible.
OPSEU filed a union grievance alleging that the employer had
violated the redeployment provisions of the collective agreement, including
Appendix 13, in its surplussing and assignment of staff after the closing of
three jails – Cobourg Jail, Haileybury Jail and L’Original Jail. The jails
were closed in July 1998.
The union’s position was that the operation or work of the
three jails was moved to other locations and therefore Appendix 13 applies.
The employer’s position was that Appendix 13 did not apply
because "operation’s headquarters" does not mean jobs and functions.
Appendix 13 only applies when a "functioning or cohesive unit" [i.e.
the jail itself] was moved to another location, according to the employer.
Article 13 does not apply when the operation is disbanded and the work is
assigned to several other pre-existing locations [i.e. other jails].
The GSB ruled:
‘Operation’ in this case includes the idea of an
organized system of activity or a process of productive activity. Productive
activity certainly suggests the idea of work. Putting the two ideas together I
am persuaded that an "operation’s headquarters" is best understood
as the location for productive activity.
I am not persuaded that "an operation’s
headquarters" refers only to a cohesive and distinct unit or particular
people. Nothing in the definitions suggests this interpretation.
The operation or productive activity of Cobourg, Haileybury
and L’Original Jails was to provide remand services to certain particular
courts, serving a particular catchment area. The evidence is clear that this
productive activity or work has not disappeared – the employer conceded that
there had been no drop in the crime rate for these areas and the work was
still being done. The evidence is clear that the work has simply been moved.
Moving the work of one headquarters in its entirety to a
larger institution, or splitting it between several new or old institutions
does not extinguish the rights under the Appendix. Further, the operation
of Appendix 13 cannot depend on whether the employer decides to transfer
employees to the new location or not.
This conclusion is consistent with other provisions in the
collective agreement. If there is no more work then Article 20 and all its
rights are triggered. If the employer decides to divest the work then Appendix
9 applies. And if the employer decides to move where the work will be done
beyond 40 kms then the rights under Appendix 13 must apply.
This ruling means that Appendix 13 can apply even when a
headquarters is closed, provided only that the work continues and is
headquartered at another location.
The same rationale was applied in OPSEU (Kerhanovich) and
Ministry of Transportation, GSB 2776/96 (Owen Gray Vice-Chair), dated May
18, 2000, where purchasing work for the Sault Ste. Marie area was consolidated
in Thunder Bay. The GSB found the operation of purchasing for the Sault had been
headquartered in the Sault but was now headquartered in Thunder Bay. The GSB was
also able to identify that at least one full time job of work had moved.
Therefore, Appendix 13 is applied.
