ANY AMBIGUITY IN
ANY JOB SECURITY AGREEMENT (INCLUDING THE OPS REASONABLE EFFORTS AGREEMENT)
SHOULD BE INTERPRETED TO MAXIMIZE JOB SECURITY
Ontario Public Service
Employees Union (Union Grievance) and The Crown in Right of Ontario (Ministry of Community
and Social Services), (Brown), March 4, 1999, GSB 1785/98
This is the first arbitration award under the reasonable efforts agreement, dated
December 14, 1998, which codified the employer’s "reasonable efforts"
obligations when transferring functions or employees from the OPS (Ontario Public Service)
to the broader public sector or the private sector.
The agreement divides transfers into four categories
referred to as Schedules A through D:
A - service transfers through tendering
B - negotiated transfers
C - transfers through restructuring
D - other transfers
The extent of the employer’s obligation varies
substantially across these categories. Under the first three schedules, the employees have
significant job security rights. Under schedule D, the employees are
surplussed.
The placement of a transfer on Schedule D is governed by
the following language (found in Article 8.4.2(ii) of the "reasonable efforts"
appendix to the OPS collective agreement):
The sole criterion for placing a transfer of a function
or work, from a specific program area, in Schedule D is whether, in the judgment of the
Ministry based on operational needs, a single receiving employer would create less than
eleven (11) full-time bargaining unit related jobs.
The first question before the arbitrator was whether a
management position in the receiving employer’s organization should be counted as a
"bargaining unit related" job. The union suggested an affirmative answer because
a manager’s position is related to the work of the bargaining unit. The employer
claimed managers are excluded from the count.
The arbitrator found the parties intended to count jobs
comparable to those done by members of the OPS unit. There was much less, if any, reason
to think the parties intended to count management jobs. The arbitrator found the
employer’s interpretation was supported by both the language of the memorandum of
settlement and its underlying objective.
The second interpretive issue was whether the jobs to be
counted include all positions necessary to perform the work transferred from the OPS unit
or include only the subset of such positions not to be filled by members of the receiving
employer’s existing workforce. This issue arose because municipal delivery agents
recently have experienced a substantial decrease in the number of cases administered and a
consequent reduction in the number of cases per employee. When cases are transferred from
the Ministry in the near future, the current staff of these delivery agents will be able
to absorb some of the additional work. Accordingly, the number of jobs available to new
hires will be less than the number required to handle all of the cases being transferred.
The arbitrator found the language governing placement on
Schedule D was ambiguous on this point, and went on to conclude the best way to resolve
this issue is by applying an approach analogous to the one taken in a long line of cases
dealing with seniority. The leading case in this line is Tung-Sol of Canada Ltd.
(1964), 15 L.A.C. 161 (Reville). In one of the most frequently cited passages ever penned
by an arbitrator, Judge Reville wrote:
…Arbitrators should construe the collective
agreement with utmost strictness whenever it is contended that an employee’s
seniority has been forfeited, truncated or abridged under the relevant sections of the
collective agreement.
The arbitrator then held as follows:
As job security is no less important than seniority,
arbitrators should take the same approach to job security as they have taken to seniority.
When a collective agreement creates a seniority system, conferring significant benefits
upon employees, arbitrators strictly construe any contractual limitation on an
employee’s seniority. Similarly, when an employer and union establish a scheme of
job security, an arbitrator should "construe" any exception "with the
utmost strictness", to borrow the language of Tung-Sol.
The arbitrator found that Schedules A, B and C, were
designed to enhance job security and Schedule D was an exception. The language which
determined the scope of the exception should be strictly construed. As neither the
language of the article nor the purpose underlying it resolved the ambiguity about the
meaning of "jobs", this word should be interpreted in the way more favourable to
job security. For this reason, the arbitrator read "jobs" to mean the number of
full-time jobs required to do the work transferred, regardless of how much of that work
initially is expected to be performed by the receiving employer’s existing workforce.
In sum, any exceptions to job security language should
be interpreted narrowly, so that job security protection is maximized.
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