Transfers and Downsizing

• Author: Timothy Hadwen/David Strang
• Pages: 586-634

586

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Transfers and Downsizing

A. CONTEXT

Following the 1995 election of a new Progressive Conservative govern-

ment, the structure of Ontario’s public service and the broader public

sector was rapidly rationalized.1 Municipalities, school boards, and hos-

pitals were consolidated.2 Consistent with the tenets of the “new public

management” philosophy popular at the time,3 the government divested

a wide range of programs and operations involved in direct service to the

public over to municipalities, public hospitals, and other public institu-

tions or agencies or contractors that could, in its view, more appropri-

ately manage these activities. This left ministries to focus more on policy

development, supervision, and regulation rather than direct service deliv-

ery. As functions were transferred out of government, and government

downsized, involved employees transferred with their work, moved to

new employment in government, or were laid o in large numbers.4

1 See the discussion of the labour relations impacts in Service Employees Inter-

national Union, Local 204 v Humber/Northwestern/York-Finch Hospital, 1997

CanLII 15494 (ON LRB) at para 27 and following.

2 Health Services Restructuring Commission, Looking Back, Looking Forward:

The Ontario Health Services Restructuring Commission. A Legacy Report (2000),

online: www.hhr-rhs.ca/en/?option=com_mtree&task=att_download&link_id=

5214&cf_id=68; Fewer School Boards Act, 1997, SO1997, c 3.

3 See the brief discussion of “new public management” in Chapter 1.

4 Graham White, “Revolutionary Change in the Ontario Public Service” in EvertA.

Lindquist ed, Government Restructuring and Career Public Service in Canada,

2000 (Toronto: Institute of Public Administration of Canada, 2000), ch 12, 310–45

Transfers and Downsizing | 587

These changes were unprecedented in Ontario and raised a num-

ber of employment and labour relations concerns. First, when func-

tions transfer out of government, will the employees move with their

work and what impact will there be on bargaining rights and key

terms of employment, wages, seniority, pension, and benef‌its? Second,

if an employee’s job in government disappears or is divested and the

employee is unable or unwilling to move to a new employer what are

the rights of the surplus employee? The legal framework developed

to address these questions form the basis of the current job security

provisions applicable to the Ontario Public Service (OPS). The current

statutory and collective agreement terms that answer those questions

are addressed in this chapter in the following order:

• Absence of the statutory right to treat the Crown and any other

employer as related or common employers

• Statutory successorship under:

1) Crown Employees Collective Bargaining Act, 1993 (CECBA)5

2) Public Sector Labour Relations Transition Act, 1997 (PSLRTA)6

3) A special purpose statute

• Negotiated transfer agreements:

1) Individual agreements between unions and receiving employers

2) the requirements for government to make “reasonable eorts”

on divestment of jobs to obtain oers of substantially similar

employment with the new employer, contained in the Ontario

Public Service Employees Union (OPSEU), Association of

Management, Administrative and Professional Crown Employ-

ees of Ontario (AMAPCEO), and Professional Engineers of the

Government of Ontario (PEGO) collective agreement

• Surplus employee rights, known in the Ontario government as

“job security” entitlements, to separation payments and redeploy-

ment within government.

at 315. See OPSEU/MBC Unif‌ied Bargaining Unit Collective Agreement, 2022–

2024 and OPSEU/MBC Correctional Bargaining Unit Collective Agreement,

2018–2021, online: https://opseu.org/information/general/f‌ind-your-collective-

agreement, Appendix 18 [OPSEU/MBC Unif‌ied and Correctional Collective

Agreements], listing transfers planned or underway at the end of 1998.

5 SO 1993, c 38 [CECBA].

6 SO 1997, c 21, Sch B [PSLRTA].

588 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

Transfers of employees into government have also occurred occa-

sionally. Those have tended to be handled through individual negoti-

ated transfer agreements.7

B. LEGISLATIVE AND COLLECTIVE BARGAINING HISTORY

A successor rights provision, providing for the transfer of bargaining

rights along with the transfer of ownership of a business, has formed

part of the Labour Relations Act, 1995 (LRA) since 1963.8 Substantially

the same provision was applied to the Crown by the Successor Rights

(Crown Transfers) Act, 1977,9 and brief‌ly under the CECBA 1993. In

1995, as the government began to implement its divestment agenda, the

successor rights provisions in CECBA 1993 were repealed.10

Not surprisingly, employee transfer and surplus rights were a dom-

inant issue in collective bargaining, leading to the 1996 OPSEU strike.11

The resultant changes to the OPSEU/MBC collective agreement featured

the requirement for the government to at least make “reasonable eorts”

to transfer public servants with their work on similar terms of employ-

ment, and signif‌icantly changed surplus or “job security” rights for

laid-o employees.12 Similar terms were subsequently included in the

7 For example, see the Memorandum of Agreement Between the Ministry of Com-

munity Safety and Correctional Services and OPSEU, 18 September 2006, online:

http://opseu.org/wpcontent/uploads/2014/04/cnccmoa_2006.pdf for the transfer

of employees from the private Central North Correctional Centre (CNCC) to

the ministry, which provided that the posting of Ontario Public Service (OPS)

vacancies would be waived and that service with CNCC would be treated as OPS

continuous service. The agreement was entered into by the Liberal government

following a Progressive Conservative f‌ive-year pilot project to determine if there

was any advantage to private operations to correctional services in Ontario:

“Central North Correctional Centre Transferring to Public Sector Operation,”

Ontario News Release, 27 April 2006, online: http://news.ontario.ca/en/release/

83436/central-north-correctional-centre-transferring-to-public-sector-operation.

8 SO 1995, c 1, Sch A, s 69 [LRA].

9 SO 1977, c 30 [SR(CT)A].

10 Labour Relations and Employment Statute Law Amendment Act, 1995, SO 1995,

c 1, s23(2).

11 OPSEU (Union) and Ministry of Agriculture, Food and Rural Aairs, GSB#1747/

96, 8 May 1997 (Gray) at 6 [Agriculture]. See the discussion of the 1996 OPSEU

strike in Chapter 8.

12 The pre-existing job oer guarantee for employees made surplus by the contract-

ing out or transfer out of the OPS of their work as contained in the OPSEU/

MBC Collective Agreement 1992-1993, Article 24.17.3, was deleted in the 1996