Public Sector Restructuring John W. Saunders October 17, 2019 2019 OMAA Fall Workshop
Public Sector Labour Relations Transition Act, 1997 2019 OMAA Fall Workshop
Purpose of PSLRTA • To facilitate the establishment of effective and rationalized bargaining unit structures in restructured public sector organizations • To facilitate collective bargaining following restructuring • To foster prompt resolution of workplace disputes following restructuring 2019 OMAA Fall Workshop 3
Application of the PSLRTA • Has applied to the Municipal, Hospital and School Board sectors since 1997 • Extended to cover a broad range of heath care restructuring in 2006 under the LHSIA • s.10(1) of PSLRTA – Cabinet may, by regulation, extend application of the Act 2019 OMAA Fall Workshop 4
Application to Municipal Sector “This Act applies upon, the amalgamation of two or more municipalities or two or more local boards; a) the dissolution of two or more municipalities and the incorporation of their b) inhabitants into a new municipality; the dissolution of two or more local boards and the establishment of a new local c) board that assumes the powers and authority of the dissolved local boards; or the dissolution of an upper-tier municipality if, as part of that restructuring, two or d) more municipalities that form part of the upper-tier municipality for municipal purposes are amalgamated or are dissolved and their inhabitants incorporated into a new municipality.” 2019 OMAA Fall Workshop 5
Essential Features 2 1 The entity which performed the services If PSLRTA applies, before the integration is Labour Relations Act the predecessor “sale of business” employer; the entity provisions do not apply performing the services afterwards is the successor employer 2019 OMAA Fall Workshop 6
Essential Features 4 3 Any collective The union representing agreement that applied the bargaining unit(s) to employees of the before amalgamation predecessor employer acquires bargaining applies to those rights at the successor employed by the employer successor employer 2019 OMAA Fall Workshop 7
Essential Features 5 6 PSLRTA process PSLRTA provides for the determines the identification of a description and common grievance and composition of the arbitration process bargaining units and the pending the finalization bargaining agents at the of a common collective successor employer agreement 2019 OMAA Fall Workshop 8
Essential Features 7 PSLRTA also provides for the recognition and preservation of the seniority rights of the affected employees 2019 OMAA Fall Workshop 9
Essential Features PSLRTA does not require that a successor employer hire any of the employees of the predecessor employer PSLRTA cannot be used to unilaterally compel employees of a predecessor employer to transfer to a successor employer 2019 OMAA Fall Workshop 10
The Changeover • Substantive provisions of the PSLRTA take effect on or after the “Changeover Date” • Prudent to commence the process well in advance of the changeover date • Minimizes and sometimes resolves contentious issues • Immediately following the merger, all collective agreements of a predecessor municipality will continue to apply to those employed by the successor municipality 2019 OMAA Fall Workshop 11
The Changeover • How many bargaining units will there be for the amalgamated employer? • How will those bargaining units be structured? • Which unions will be a party to the process? • Will there be a vote? 2019 OMAA Fall Workshop 12
The Bargaining Unit “ …the Board’s approach in these sorts of cases appears to favour the bargaining unit structure that would result in relatively minimal disruption to the existing labour relations framework provided it is appropriate for the successor employer’s operation. ” 2019 OMAA Fall Workshop 13
The Bargaining Agent • Where two or more bargaining agents represent employees in the new bargaining unit, the issue of representation must be determined by agreement amongst the bargaining agents or by secret ballot vote administered by the OLRB • The determination of the bargaining agent can only formally occur after the changeover date 2019 OMAA Fall Workshop 14
The Bargaining Agent • The OLRB may change which employees are represented by which bargaining agent or create a larger bargaining unit that includes employees who previously were in different units or previously were unrepresented • Absent an agreement as to the bargaining agent, the OLRB orders a representation vote for each bargaining unit if the number of units or unit description has changed 2019 OMAA Fall Workshop 15
The Bargaining Agent • If one union represents 80% or more of the employees in the new bargaining unit, that union will become the bargaining agent and no vote will be held • If 40% or more of the employees in the new bargaining unit were non-union employees, then a “No Union” option must be included • The union that receives more than 50% of the ballots cast is declared the bargaining agent for all employees in the bargaining unit 2019 OMAA Fall Workshop 16
The Collective Agreement • The parties can agree to apply one of the prior collective agreements to all employees • If the parties cannot agree, a “composite” agreement will apply until a new agreement is negotiated • Each collective agreement is deemed to form part of a single collective agreement to which the bargaining agent, the bargaining unit and the successor employer are parties • Composite agreement operates for one year 2019 OMAA Fall Workshop 17
The Collective Agreement • During the PSLRTA process, the successor employer must administer several different collective agreements • Difficult or contentious issues include: • Harmonizing wages • Harmonizing job descriptions/positions • Application of benefits • Hours of work and overtime thresholds 2019 OMAA Fall Workshop 18
The Collective Agreement – Exceptions • The grievance procedure from the collective agreement between the successor employer and successful bargaining agent will apply to all employees in the bargaining unit 2019 OMAA Fall Workshop 19
The Collective Agreement – Exceptions • Presumptions re seniority: • All continuous service with the predecessor is recognized • Unit-wide seniority • Seniority list is “dovetailed” 2019 OMAA Fall Workshop 20
OLRB Process • Labour Relations Specialist (“LRS”) • Disclosure of all “arguably relevant documents” • Submissions with full legal argument • Consultation hearing in front of a Vice-Chair • After the OLRB makes its decision on bargaining units, any required votes will be scheduled 2019 OMAA Fall Workshop 21
PSLRTA Uncertainties • Outstanding Grievances • Not necessarily extinguished • Dual Employees • Should they be forced to relinquish one position? • Are they laid off or is this “frustration?” 2019 OMAA Fall Workshop 22
Preparing for a Merger – A Practical Guide Create Executive Planning Committee Consult stakeholders, the government and your legal advisors Establish sub-committees and roles Determine the new governance structure Determine the organizational structure Develop a management plan 2019 OMAA Fall Workshop 23
Human Resources • Gather basic employee data • Demographics: age, salaries, service, seniority • Employee status: LTD/STD, leaves of absence • Job classifications and the number of incumbent employees • Outstanding vacation, overtime • Outstanding grievances • Organizational chart with the new departmental structure/policies 2019 OMAA Fall Workshop 24
Labour Relations • Gather information regarding: • Bargaining units, agents and key contacts • Collective agreements and any ancillary documents • Status of collective bargaining • Settlements and awards • OLRB applications – e.g. ULPs, certification 2019 OMAA Fall Workshop 25
Labour Relations • Duty to notify bargaining agents of PSLRTA application • Consider potential union response • Layoff and job security provisions • Consultation requirements • Consider resolution of outstanding grievances 2019 OMAA Fall Workshop 26
Other Considerations • Any outstanding civil litigation • Human Rights Tribunal of Ontario applications • Ongoing internal investigations • File storage and record keeping 2019 OMAA Fall Workshop 27
Other Considerations • Integration of information systems and payroll • Effect of job security and other collective agreement language 2019 OMAA Fall Workshop 28
Other Considerations – Non-Union Staff • Termination governed by: • Employment contract, Employment Standards Act , common law • Constructive dismissal employment contract treated as terminated by substantial change to a fundamental term • Change in legal identity of the employer may trigger this 2019 OMAA Fall Workshop 29
Cybersecurity Attacks 2019 OMAA Fall Workshop
Municipalities are at risk of cybersecurity attacks • Municipalities are increasingly reliant on computer systems to deliver services as efficiently as possible, giving attackers more opportunity to engage in malicious behavior. 2019 OMAA Fall Workshop 31
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