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MAG changes prompt employee dispute

|Written By Kendyl Sebesta

The Ontario government is coming under fire for cutting several positions at the Ministry of the Attorney General as its various unions battle over a secret additional wage increase negotiated for some employees only.

The employees involved in the dispute over the government’s new positions worked in the accommodation services section at the Ministry of the Attorney General’s offices on Bay Street in Toronto. Photo: Laura Pedersen

Ten facilities management co-ordinators working in the accommodation services section lost their jobs in 2010 after the provincial government decided to scrap it and replace it with something else.

The move also included the addition of at least six new regional program and business advisers later that year.

But that ruffled the feathers of at least seven of the co-ordinators who lost their jobs.

They then went to the Ontario Labour Relations Board to file disputes arguing the provincial government violated terms of the collective agreement preventing job loss.

In another twist, six of the newly hired regional program and business advisers are also at the labour board where they’re arguing the Association of Management, Administrative, and Professional Crown Employees of Ontario (AMAPCEO) must provide them with fair representation in the termination dispute as well.

But AMAPCEO isn’t likely to budge on the matter any time soon.

Michael Mitchell, counsel for AMAPCEO and a partner at Sack Goldblatt Mitchell LLP, says the outcome of the ministry’s restructuring has created very real consequences for the union’s members that it’s unlikely to shy away from fighting against.

“There are much more dire consequences than people simply being shifted from union to union,” says Mitchell, who’s representing AMAPCEO in Novak v. Association of Management, Administrative, and Professional Crown Employees of Ontario.

“That doesn’t really happen. The real consequence here is that people lost their jobs. AMAPCEO is saying the people who originally lost their jobs shouldn’t have been let go.”

Such situations aren’t uncommon, according to Mitchell, who points to a lengthy history of cases involving both AMAPCEO and the Ontario Public Service Employees Union over the last several years.

“All of these cases arise because the provincial government creates a position in a new bargaining unit that eliminates an existing position in the original bargaining unit,” he says.

“That inevitably replaces employees who originally held those jobs. In the past, OPSEU has complained that all the new jobs should be in their bargaining unit. This is specifically where cases for jurisdictional disputes come into play.”

Currently, both AMAPCEO and OPSEU represent members based on where their jobs land in relation to the unions’ jurisdictional boundaries. When there’s a dispute about where those boundaries are, they enter into collective agreements with the provincial government.

Those agreements determine which jobs fall within which union and, ultimately, who may lose their job.

In the past, OPSEU has argued those jurisdictional boundaries are inherently flawed. In its view, the provincial government should create more jobs within its boundaries instead of passing more of them to AMAPCEO.

AMAPCEO, on the other hand, has argued that collective agreements with the provincial government are the real problem and points to a recent secret deal between OPSEU and the province as an example.

In that case, the Ontario Labour Relations Board ruled the provincial government had intentionally misrepresented a contract settlement with its biggest public-sector union in a “secret arrangement” that awarded employees an additional one-per-cent wage increase in a bid to keep labour costs down.

OPSEU appeared before the board last summer, where a hearing on the matter showed an “adjustment” to a scheduled wage increase of two per cent for this year that raised it by an additional one per cent in exchange for non-wage concessions among its 38,000 members.

AMAPCEO ultimately relied on the public portion of that OPSEU arrangement in negotiating its own wage deal in 2009.

AMAPCEO learned of the secret arrangement after the fact and is now accusing the government of bargaining in bad faith. It’s looking to get the additional one-per-cent increase for its 12,000 members.

If the government has to compensate AMAPCEO members, it could cost millions of dollars. The government is currently seeking judicial review of the ruling, according to Government Services Minister Harinder Takhar.

But Takhar has said any talk of penalty or financial compensation will be a matter for future labour board proceedings. “We will continue to make strong arguments to the [board] to try to prevent that from happening,” he said in a statement.

Until then, Edward Wren, president of the Association of Law Officers of the Crown (ALOC) that represents the government’s non-criminal lawyers, says public employees will have to “wait and see what will happen” in both the wage-increase and Novak matters.

“This is definitely an issue for us and something that we are looking at very carefully along with, I imagine, every other bargaining unit,” says Wren.

“In our negotiations with the employer, we relied on the same information that AMAPCEO did, so it has raised similar concerns for us.”

In terms of the Novak matter, Wren adds that ALOC has also seen similar issues with job loss and the movement of bargaining units to different jurisdictional boundaries in the past but will determine what steps to take after the labour board has reached its full decision in the wage-increase matter.

OPSEU’s Brian Gould, meanwhile, says that while the history between the unions may complicate issues such as the wage increase and cases like Novak, it’ll also serve to draw an important line between them.

“In cases like [Novak], what typically happens is people are put into new positions that may cost other employees their jobs. If those original employees were AMAPCEO members, for example, the union would essentially be saying that they never wanted the new members and aren’t required to represent them.

“That’s also a reason why we have the history that we do between us. We don’t think it’s right that they would do that to their members if that is in fact the case here.”

In the meantime, the labour board has ruled in favor of AMAPCEO in Novak after concluding it didn’t violate the rules on fair representation by declining to represent the ministry’s new hires.

The new hires include current ministry employees Richard Novak, Anne-Marie Long, John Ota, Tamaris Yakimishyn, Lori Hunt, and Valerie Tourikian.

For its part, the ministry declined to comment on the cases directly but did acknowledge it had terminated the section where the original employees had worked.

“In the spring of 2009, the facilities management branch of the Ministry of the Attorney General began a review of its operations, as the business requirements of the branch had changed substantially in previous years,” said spokesman Brendan Crawley in an e-mail.

“In September 2010, the employer informed AMAPCEO that the decision had been made to reorganize the work of the branch. As part of the reorganization, the accommodation services section was eliminated, and 10 facilities management co-ordinator positions were surplused.

“Those employees, who were represented by AMAPCEO, were informed of these decisions later that month, in September 2010. Seven of those employees have filed disputes with the grievance settlement board.

These grievances are currently being heard by a vice chair of that board. As these issues are currently being litigated, the ministry cannot comment further.”

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