HomeMy WebLinkAbout2011-2563.Union.13-01-16 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2011-2563
UNION#2011-0999-0041
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Paul Meier
Ministry of Government Services
Labour Practice Group
Counsel
HEARING October 12 and December 10, 2012.
- 2 -
Decision
[1] In a grievance dated August 17, 2011, the Union claims that the Employer
contravened the Collective Agreement “by improperly surplussing members when their work is
remaining in the OPS.” The particulars filed by Union counsel claim an improper transfer of
work in a number of Ministries from the Union’s bargaining unit to persons in positions
outside the Union’s bargaining unit. Some of the circumstances covered by the grievance have
led to jurisdictional dispute proceedings at the Ontario Labour Relations Board. At this stage
of the proceeding, the parties agreed to focus on an area covered by the grievance not affected
by a jurisdictional dispute, namely the surplussing of certain employees in the Ministry of
Environment (“MOE”).
[2] In a letter dated June 28, 2011, the Employer notified the Union of the surplussing
of 57 OPSEU represented positions in the MOE. In particular, the Employer advised that the
total complement of 11 Human Resources Assistant (“HRA”) positions would be eliminated
because the MOE determined that “positions providing divisional HR support to managers are
now unnecessary due to streamlined HR procedures developed and implemented by the
Ministry of Government Services including a revised Workforce Information Network system
allowing managers to perform the majority of tasks themselves.” The Union takes the position
that these HRA positions should not have been eliminated since their duties have been assigned
to persons outside of the bargaining unit contrary to the implied restriction in the Collective
Agreement which precludes the Employer from assigning bargaining unit work in this manner.
The Union seeks a declaration that the Employer’s treatment of the HRAs and the assignment
of their work to persons outside the bargaining unit contravened the Collective Agreement and
it requests that I remain seized while the parties attempt to agree on an appropriate remedy.
- 3 -
The parties agree that the central issue before me is whether the MOE contravened the implied
restriction when it assigned work previously performed by HRAs to employees in the Ministry
excluded from the bargaining unit. For the purpose of addressing this issue, counsel provided
me with an agreed statement of fact, along with a number of exhibits. Electing not to call oral
testimony, counsel made their submissions based on the agreed statement of fact which, absent
the exhibits, provides as follows:
INTRODUCTION
On June 28, 2011, the Director for the Centre for Employee Relations, Employee
Relations Division, HROntario, Ministry of Government Services (“MGS”), advised
OPSEU President, Mr. Warren Thomas, of the surplussing of, inter alia, eleven (11)
Human Resources (“HR”) Assistant 09OAD level OPSEU represented positions in the
Ministry of Environment (“MOE”). (Operations Division: Central Region (2 positions),
Eastern Region (1 position), Southwestern Region (2 positions), Environmental
Assessment & Approvals Branch (2 positions), Investigations & Enforcement Branch (1
position) [note: this position was at the 08OAD level], Sector Compliance Branch (1
position). Integrated Environmental Policy Division: Assistant Deputy Minister’s Office
(2 positions).
The surplussed MOE HR Assistants positions had resided in the Regional/Branch offices
of the MOE’s Operations Division and in the Assistant Deputy Minister’s Office in the
Integrated Environmental Policy Division. Appendix “A” of the HROntario’s letter to
OPSEU dated June 28, 2011 provided a “Business Rationale for the Elimination of HR
Assistant Positions in the Ministry of the Environment”. [HROntario’s letter dated June
28, 2011 and relevant organization charts are attached as Exhibit “A” hereto].
FORMER MODEL
MOE HR Assistants had provided divisional “human resources services and
administrative support” to MOE Regional/Branch offices. The Position Description
Reports (“PDRs”) for each of the surplussed HR Assistants positions are attached as
Exhibit “B” hereto.
In providing these general services and administrative support to various MOE regions
and branches, MOE HR Assistants did not form part of the MOE’s Human Resources
Branch.
Within the MOE’s Human Resources Branch, MOE HR Consultants and MOE Client
Support Assistants had performed HR generalist functions for the MOE.
MOE HR Consultants (at the APL17 level) provided “a comprehensive range of strategic
human resources services including staffing, organizational design, position analysis and
- 4 -
evaluation, and staff relations” in support of MOE’s business goals [see the MOE HR
Consultant PDR attached as Exhibit “D”]. The salary level of MOE HR Consultants
(APL17) was significantly higher than the salary level of MOE HR Assistants. (For
example, in 2009, the salary level of MGS HR Advisors (APL17) was approximately 72
per cent higher than the salary level of MOE HR Assistants.)
MOE Client Support Assistants (at the OAD10 (excluded) level) provided “a full range
of human resources services in areas such as: employment transition; staffing;
classification; salary administration; [and] position administration (WIN)” [see the MOE
Client Support Assistant PDR attached as Exhibit “C”]. Both the MOE HR Consultants
and the MOE Client Support Assistant positions were excluded from all OPS bargaining
units, including the OPSEU bargaining unit.
MGS’ HROntario SERVICE DELIVERY MODEL
The MOE’s Human Resources Branch has been replaced by MGS’ OPS-wide HROntario
Service Delivery Model.
Starting in 2008, the Ministry of Government Services (“MGS”) implemented the
HROntario Service Delivery model. HROntario’s Service Delivery Model is attached as
Exhibit “E” hereto, encompassing (i) strategic Ministry HR Services, (ii) Enterprise
Centres of Expertise and (iii) common regionally-based HR Services.
HROntario’s Regional Recruitment Services
HROntario’s common regionally-based HR Services (item (iii) above) includes MGS’
Regional Recruitment Services.
By June 2008, MGS launched its Regional Recruitment Services with an established
organizational structure (e.g. management positions, MGS Recruitment Consultant
positions, MGS Recruitment Assistant positions and administrative positions) to provide
end-to-end recruitment services to hiring managers across the OPS for all line Ministries
in all regions [see the “Regional Recruitment Service Delivery Centres” slide attached as
Exhibit “F” hereto].
More specifically, MGS HR Recruitment professionals (i.e. Recruitment Consultants and
Recruitment Assistants) within the HROntario’s Regional HR Services Branch provide
end-to-end recruitment services to hiring managers (e.g. “planning”, “attraction”,
“selection”, “hiring” and “hiring tools”) for a portfolio of ministries, including the MOE,
(i.e. the “client group”) within five (5) large Recruitment Services regions (i.e. Toronto
Region, Central Region, West Region, East Region and North Region) [see documents
describing the general services and tasks performed by HROntario’s Recruitment
Services professionals attached as Exhibit “G” hereto].
These Recruitment professionals, dedicated to providing a suite of recruitment services,
are excluded from the OPSEU bargaining unit.
- 5 -
MGS Recruitment Consultants provide “consultation, strategic advice, expertise and
coordination in the delivery of end-to-end recruitment services to regional line managers”
[see the Recruitment Consultant PDR attached as Exhibit “H” hereto]. As part of those
services, Recruitment Consultants are responsible for, inter alia, drafting “effective job
advertisements and job information packages” and “screening incoming applications”.
The salary level of Recruitment Consultants (APL17) is significantly higher than the
salary level of MOE HR Assistants. (For example, in 2009, the salary level of
Recruitment Consultants was approximately 72 per cent higher than the salary level of
MOE HR Assistants.)
MGS Recruitment Assistants devote all of their time to assisting in the recruitment
functions carried out by the Recruitment Consultants (and the Manager of the applicable
Regional Recruitment Centre). For example, Recruitment Assistants assist Recruitment
Consultants by drafting Job Information Packages consisting of “comprehensive selection
criteria, vacancy skills assessments and innovative job advertisements” based on client
engagement meeting information. Further, Recruitment Assistants screen “incoming
applications to ensure eligibility and qualification criteria are met and make
recommendations to the Recruitment Consultant and/or the hiring manager on the
eligibility of applicants to proceed to the next stage of the recruitment process”.
Recruitment Assistants also prepare “draft interview questions and rating methods (i.e.
develops employment tests) for review by the consultant and/or hiring manager” and will
identify “recruitment issues through the course of daily work” [see the Recruitment
Assistant Job Specification and Job Ad attached as Exhibit “I” hereto].
MGS Recruitment Assistants usually assist three or four MGS Recruitment Consultants.
Since each MGS Recruitment Consultant will have a client group encompassing three or
four different ministries on average, the MGS Recruitment Assistant “attached” to those
Recruitment Consultants will be engaged in recruitment activities on behalf of 12 or more
ministries. The salary level of Recruitment Assistants (APL14) is significantly higher
than the salary level of MOE HR Assistants. (For example, in 2009, the salary level of
Recruitment Assistants (APL14) was approximately 42 per cent higher than the salary
level of MOE HR Assistants.)
Recruitment Services uses an on-line recruitment tool to collect resumes and to
automatically acknowledge receipt of resumes.
HROntario’s Regional HR Advisory Services
HROntario’s common regionally-based HR Services (see item (iii) at paragraph 9 above)
includes its Regional HR Advisory Services. By March 2009, MGS launched its
Regional HR Advisory Services with an established organizational structure (e.g.
management positions, MGS HR Advisors and MGS HR Assistants and administrative
positions etc.) to provide HR advisory services across the OPS for all line-Ministries in
all regions.
MGS HR Advisors are designated to provide first-point-of-contact HR Services for all
OPS staff including directors and managers within their client group of ministries. More
specifically, MGS HR Advisors provide Human Resources advisory/consultative and
- 6 -
direct expertise and support to their client group’s line managers in their assigned regions
and work collectively with other HR business partners to coordinate linkages and broker
services [see the MGS HR Advisor PDR attached as Exhibit “J”]. The salary level of
MGS HR Advisors (APL17) is significantly higher than the salary level of MOE HR
Assistants. (For example, in 2009, the salary level of MGS HR Advisors (APL17) was
approximately 72 per cent higher than the salary level of MOE HR Assistants.)
Within the HROntario’s Regional HR Services Branch, MGS HR Assistants devote all of
their time to assisting in the HR advisory functions carried out by the MGS HR Advisors
[see the MGS HR Assistant PDR attached as Exhibit “K”]. The salary level of MGS HR
Assistants (APL14) is significantly higher than the salary level of MOE HR Assistants.
(For example, in 2009, the salary level of MGS HR Assistants (APL14) was
approximately 42 per cent higher than the salary level of MOE HR Assistants.)
ANALYSIS OF WORK PREVIOUSLY PERFORMED BY MOE HR ASSISTANTS
(a) “Responding to Staffing and/or Competition Enquiries”
Pursuant to the MOE HR Assistants’ PDRs, their general administrative support had
included “providing staffing services by responding to staffing and/or competition
enquiries”. This support work had included “preparing Job Information packages by
retrieving information [from] previous competition packages”, “editing/typing”,
“preparation / distribution of job advertisements”, “acknowledging applications”,
“conducting preliminary screening according to established criteria (e.g. area of search
eligibility criteria, application deadlines)”, “typing interview questions and setting up
interviews”, completing hiring documentation (e.g., “ensuring documentation is properly
authorized and complete”) and “updating information in WIN” [see
“Duties/Responsibilities #1” of the PDRs attached as Exhibit “B” hereto].
For example, in the MOE’s Central, Eastern and Southwestern Regions, MOE HR
Assistants performed the following administrative support tasks: scheduled interviews,
provided electronic copies of the job specifications to managers, photocopied the
interview package for each panel member, set up the interview room, timed written tests,
courier competition packages and provided position data (i.e. the position number,
classification etc.) to the hiring manager.
The amount of administrative recruitment-related work performed by the MOE HR
Assistants would “ebb and flow” from region to region and branch to branch depending
on whether any given region or branch was engaged in recruitment activity. In the
MOE’s Central Region, the busiest regional office in the Operations Division because of
its geographic location, MOE HR Assistants assisted with 12-15 competitions per year,
amounting to up to 25 per cent of their time. For the purposes of this arbitration, the
Employer agrees that this 25 per cent maximum estimate in the Central Region is
comparable to other Regions.
Before the introduction of the HROntario Service Delivery Model, MOE Client Support
Assistants and, to a lesser extent, MOE HR Consultants had also performed these
administrative recruitment-related duties and responsibilities. Effective June 2008, MOE
- 7 -
Client Support Assistants and MOE HR Consultants ceased to perform these
administrative recruitment-related duties and responsibilities as a result of the
introduction of HROntario’s Regional Recruitment Services. (The MOE HR Consultant
and MOE Client Support Assistant positions were assumed by the launch of HROntario’s
Regional HR Advisory Services effective March 2009.)
With the introduction of HROntario’s Regional Recruitment Services, the MGS
Recruitment Consultants and MGS Recruitment Assistants commenced performing these
administrative recruitment-related duties and responsibilities as part of their delivery of
end-to-end recruitment services to regional line managers.
The Employer asserts that the quality of the recruitment-related work, now exclusively
performed by MGS Recruitment Consultants and MGS Recruitment Assistants, is of a
strategic nature. The Employer further asserts that the administrative recruitment-related
duties previously performed by the MOE HR Assistants for MOE Regional Office/
Branches does not constitute a significant part of the overall work of MGS Recruitment
professionals (e.g., as stated above, MGS Recruitment Assistants are engaged in
recruitment activities, including more administrative recruitment-related duties, on behalf
of 12 or more ministries). The Employer also asserts that some aspects of the MOE
Assistants’ administrative recruitment-related duties have been “automated” (e.g., as
stated above, Recruitment Services uses an on-line recruitment tool to collect resumes
and to automatically acknowledge receipt of resumes).
(b) “Producing and Updating Reports [and] Charts” and “Attendance Reporting”
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants’ general duties and
responsibilities had included producing and updating various human resource related
charts (e.g., dates that employees became eligible to obtain merit increases) and had
included “verifying human resource/payroll documentation, reconciling records and
entering data into appropriate computerized system e.g. attendance reporting…” [see
“Duties/Responsibilities #2” of the PDRs attached as Exhibit “B” hereto].
The MOE HR Assistants had devoted up to 25 per cent of their total time to these
administrative HR-related information reporting duties and responsibilities. For example,
in the MOE’s Central, Eastern Regions and Southwestern Regions, MOE HR Assistants
had spent up to 25 per cent of the total time producing and updating charts (e.g., related
to tracking merit increases or attendance).
Workforce Information Network (“WIN”) 2010 Upgrade
The recently upgraded enterprise-wide, internet-based Workforce Information Network
(“WIN”) system operated by MGS has stream-lined HR procedures. For example,
Managers perform merit increase and attendance reporting tasks themselves. More
specifically, Managers have direct access to the WIN application to directly manage and
track employee information (e.g. to enter and approve employee absences or enter merit
increases) with Ontario Shared Services (“OSS”) supporting the WIN application [See,
for example, documents instructing managers to enter and approve employee absences
attached at Exhibit “L” hereto]. (As stated in Appendix “A” of the HROntario’s letter to
- 8 -
OPSEU dated June 28, 2011, Business Rationale for the Elimination of HR Assistant
Positions in the Ministry of the Environment: “[T]he Ministry of the Environment has
determined that positions providing divisional support to managers are now unnecessary
due to streamlined HR procedures developed and implemented by the Ministry of
Government Services, including a revised Workforce Information Network system
allowing managers to perform the majority of tasks themselves”. [see HROntario’s letter
dated June 28, 2011 attached as Exhibit “A” hereto; emphasis added].)
This HR-related reporting work is incidental to the Managers’ job functions. For
example, if an employee has inquiries concerning attendance reporting issues, he or she
contacts OSS directly.
(c) WIN Employee Action Request (“WEAR”) Form Management
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants had also been responsible
for “reviewing, preparing for processing a variety of human resources and payroll
transactional documents (i.e., WIN Employee Action Request (“WEAR”) forms). These
WEAR form management duties related to “new hires, terminations, benefits, change in
status, transfers/secondments, unclassified time sheets, Workplace Safety and Insurance
Board (WSIB) …and leaves of absence” [see “Duties/Responsibilities #3” of the PDRs
attached as Exhibit “B” hereto].
In the MOE’s Central, Eastern and Southwestern Regions, WEAR form management
related duties and responsibilities for those Regions had accounted for about 15 per cent
of the MOE HR Assistants’ total time.
This WEAR form management related work is incidental to the Managers’ job functions.
A common practice at the MOE is for Administrative Assistants to manually complete
the WEAR forms for manager authorization. In the Central Region, managers complete
WEAR forms themselves.
With the introduction of HROntario’s Regional Recruitment Services, MGS Recruitment
Consultants and Recruitment Assistants commenced preparing HR related documents
(e.g. offer letters, temporary agreements, and WEAR forms) in respect of new hires for
competitive processes undertaken by Regional Recruitment Services as part of their
delivery of end-to-end recruitment services to regional line managers.
The Employer asserts that preparing HR related documents in respect of new hires for the
MOE does not constitute a significant part of their work (e.g., as stated above, MGS
Recruitment Assistants are engaged in recruitment activities, including preparing HR
related documents in respect of new hires, on behalf of 12 or more ministries).
(d) Other “Human Resources Services and Administrative Support”
Updating Position Administration Records
- 9 -
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants had been responsible for
“updating position administration records” in WIN [see “Duties/Responsibilities #2” of
the PDRs attached as Exhibit “B” hereto].
The MOE HR Assistants spent a minimal amount of their total time on the paperwork
related to “updating position administration records”. MOE HR Assistants only
completed the forms to submit to HR Ontario; they did not have access to change this
information in WIN.
Before the introduction of the HROntario Service Delivery Model, Ministry Client
Support Assistants and HR Consultants had also performed these tasks.
Due to streamlined HR procedures developed and implemented under the HROntario
Service Delivery Model, HR Advisors are designated as the first point of contact for any
given portfolio of ministries, including the MOE, and are responsible for updating
positions in WIN.
HR Advisors work with HR Assistants to update position data in WIN upon submission
of a “position data change form” from the accountable manager.
The Staff Planning & Forecasting Information System (“SPFIS”) database system
referenced in the HR Assistants’ PDRs is no longer in use.
Manager and Employee Inquiries
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants had also been responsible
for “responding to managers and employee enquiries regarding “payroll discrepancies /
errors; application of policy or collective agreement articles (e.g. overtime entitlements
for various salary schedules...); benefit package and entitlements (e.g., vacation, various
leave credits, pay dates, merits…)” [see “Duties/Responsibilities #4” of the PDRs
attached as Exhibit “B” hereto]. Accordingly, MOE HR Assistants provided general
information to managers and employees related to defined human resources issues that
were contained in the applicable policies and collective agreements. MOE HR Assistants
would relay this information to managers or employees, but did not provide any
interpretation of any applicable policies or collective agreements. Before the introduction
of the HROntario Service Delivery Model, Ministry Client Support Assistants and HR
Consultants had also performed these tasks as well as OSS pay and benefits staff (with
respect to payroll discrepancies/errors issues).
Due to streamlined HR procedures developed and implemented under the HROntario
Service Delivery Model, MGS HR Advisors are designated as the first point of contact
and are responsible for “interpretation and advice on the application of policy, legislation,
collective agreements, government directives and programs”. See, for example, the
Human Resource Advisory Services’ (Formerly called “Regional Service Delivery
Centres”) “Service Delivery Framework” as approved by the HRO Executive Committee
attached hereto as Exhibit “M”. Under this model, managers have direct access to MGS
HR Advisors regarding the application of policy or collective agreement entitlements.
- 10 -
Further, under the OSS Client Service Delivery Model, OSS Pay and Benefits staff
members are responsible for inquiries regarding pay and benefits and both employees and
managers have direct access to OSS Pay and Benefits via the OSS Contact Centre.
On average across the MOE Regions, the MOE HR Assistants would spend less than 10
per cent of their total time to responding to “payroll discrepancies/errors” inquiries.
Liaising with MOE HR and OSS
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants had also been responsible
for liaising with the MOE’s Human Resources Consultants and OSS pay and benefits
staff “to clarify information for employee's inquiries on the Collective Agreement,
ministry policies and procedures related to payroll and benefits administration, exchange
information and resolve discrepancies” [see “Duties/Responsibilities #5” of the PDRs
attached as Exhibit “B” hereto].
In all cases, MOE Assistants would only provide clarifying “information” related to
payroll and benefits administration after consulting with MOE’s Human Resources
Consultants and OSS pay and benefits staff or with the Business Services Manager.
Before the introduction of the HROntario Service Delivery Model, OSS pay and benefits
staff and Ministry HR Consultants had also performed these tasks directly.
Under the HROntario Service Delivery Model, employees (and managers) have direct
access to HROntario (i.e., HR Advisors) and OSS for pay and benefit related enquiries.
The MOE HR Assistants had devoted significantly less than 50% of their total time to
clarifying employee payroll and benefits administration inquiries with MOE HR
Consultants and others. For example, in the MOE Central Region, MOE HR Assistants
would spend up to 25 per cent of their time on these tasks.
Logistics regarding Staff Training
Pursuant to the MOE HR Assistants’ PDRs, the HR Assistants had also been responsible
for “facilitating the logistics of delivery and tracking staff training/development (e.g.
boardrooms, supplies)” [see “Duties/Responsibilities #6” of the PDRs attached as
Exhibit “B” hereto].
Under the HROntario Service Delivery Model, MGS has established the Centre for
Leadership and Learning (“CFLL”) to coordinate all OPS learning and development
programs. Managers and employees register with the CFLL directly for OPS learning
and development programs. The MOE HR Assistants’ time devoted to “facilitating the
logistics of delivery and tracking staff training/development (e.g. boardrooms, supplies)”
was minimal.
Reception Back-Up
Pursuant to the MOE HR Assistants’ PDRs, the MOE HR Assistants had also been
responsible for, “[o]n a rotational basis, providing back up to the receptionist by
- 11 -
operating a multi-line switchboard, maintaining daily log of staff whereabouts, receiving
visitors, answering general inquiries and processing incoming/outgoing mail” [see
“Duties/Responsibilities #7” of the PDRs attached as Exhibit “B” hereto].
The HR Assistants devoted significantly less than 50% of their total time to this rotational
(i.e. shared amongst other OPSEU staff) “back-up” reception functions.
Of the branches and regions that had surplussed HR Assistants, only the three regions
(Central, Eastern, and Southwestern) currently have a reception desk. The branches (the
Environmental Assessment & Approvals Branch, the Investigations & Enforcement
Branch and the Sector Compliance Branch) do not have reception desks.
Hiring in HROntario – MGS Recruitment Assistants
As stated above, MGS launched HROntario’s Regional Recruitment Services starting in
2008 with an established organizational structure (e.g. management positions, MGS
Recruitment Consultant positions, MGS Recruitment Assistant positions and
administrative positions) to provide end-to-end recruitment services to hiring managers
across the OPS.
The hiring of MGS Recruitment Assistants in the period June 2011 to July 2012 is related
to filling existing Regional Recruitment Services positions vacated through natural
attrition (e.g. filling vacancies created by secondments, promotions, pregnancy and
parental leaves etc.).
For example, on or about December 5, 2011, MGS posted a job ad for a permanent
Recruitment Assistant position in MGS’ West Recruitment Services Centre. This
permanent vacancy arose because the former incumbent Recruitment Assistant was
promoted to a Recruitment Consultant role and the position became permanently vacant
on the conclusion of a second development temporary assignment. The successful
candidate for the Recruitment Assistant position continues to provide recruitment
services to a client group that encompasses 15 ministries, including the MOE, in the
London catchment area.
[3] In support of the Union’s position that the Employer contravened the Collective
Agreement on these facts, Union counsel relied on the following decisions: OPSEU v. Ministry
of Community and Social Services (Pilon Grievances), [2001] O.G.S.B.A. No. 78 (R. Brown);
OPSEU v. Ministry of Community and Social Services (Pilon Grievances), [2003] O.G.S.B.A.
No. 38 (R. Brown); and, Sobey’s v. United Food and Commercial Workers International
Union, Local 175, [2003] O.L.A.A. No. 480 (Marcotte).
- 12 -
[4] To support the Employer’s position that the implied restriction has not been
triggered in the instant case, Employer counsel referred me to the following decisions: Re
Cabral Foods Inc. (Swiss Chalet Restaurant) and Hotel & Restaurant Employees Union, Loc.
88 (1990), 11 L.A.C. (4th) 370 (R. Blair); Re J.S. Jones Timber Ltd. and Industrial Wood and
Allied Workers of Canada, Local 1-3565 (2000), 93 L.A.C. (4th) 72 (Ready); Re Dickson’s
Food Services Co. (Division of General Foods Inc.) and U.F.C.W., Loc. 2000 (1989), L.A.C.
(4th) 241 (McColl); and, Guelph (City) v. Canadian Union of Public Employees, Local 973,
[2000] O.L.A.A. No. 567 (Brandt).
[5] The above referenced decisions deal with issues relating to the implied restriction
on the performance of bargaining unit work by employees outside the bargaining unit. The
Pilon decisions involve the same Collective Agreement that governs the dispute before me. It
is useful to review the Pilon decisions in some detail to appreciate the basis for the implied
restriction and how it is triggered.
[6] In the 2001 Pilon decision, the Union claimed that the surplussing of Personal
Support Workers (PSWs) arising from the assignment of their work to persons outside of the
bargaining unit contravened the implied restriction. Vice-Chair Brown addressed whether the
facts alleged by the Union constituted prima facie proof of a violation of the Collective
Agreement on this and other issues. He reviewed two decisions in which unions had objected
to a supervisor performing work of the bargaining unit, one of which was Re Irwin Toy and
United Steelworkers of America (1982), 6 L.A.C. (3rd) 328 (Burkett). Vice-Chair Brown
referenced the following two passages from the Irwin Toy decision:
We start by observing the absence of an express restriction upon the assignment
of bargaining unit work is not dispositive. The language of most collective
- 13 -
agreements which sets out the classifications covered by the agreement, creates
seniority and recall rights and establishes job posting procedures, gives rise to an
implied restriction upon a company’s right to assign bargaining unit work to
supervisors. This implied restriction has been universally recognized by
arbitrators. The recognition of this implied restriction forms a part of the arbitral
backdrop against which they must be interpreted.
…
When reference is had to the basis of the implied restriction upon management’s
right to assign bargaining unit work to supervisors we are of the view that the
amount of bargaining unit work assigned to a supervisor necessary to trigger the
implied restriction must be very close to, if not, an amount which would occupy a
bargaining unit employee for a full shift on an ongoing basis. The implied
restriction flows from the clauses in the collective agreement dealing with
seniority, job posting and lay-off and recall. These clauses give rise to rights in
connection with job bidding, bumping and recall in respect of certain jobs or job
vacancies. These rights, however, can only be exercised in respect of jobs which
would occupy a bargaining unit employee for most if not all of a full shift. It
follows that if the implied restriction flows from a balancing of management’s
right to assign bargaining unit work to supervisors and the employee’s right to
claim a job, the amount of work in issue must be sufficient to trigger the exercise
of the employee’s job bidding, bumping or recall rights.
After considering Arbitrator Burkett’s analysis and other awards, Vice-Chair Brown
noted that he had “no hesitation in concluding the collective agreement at hand contains
an implied restriction on the performance of bargaining unit work by all employees
outside the bargaining unit, regardless of whether they have managerial responsibility.”
He also noted that a determination as to whether the implied restriction had been violated
must await further facts and argument. After quoting from section 5:1400 in Brown and
Beatty’s Canadian Labour Arbitration, Vice-Chair Brown indicated that “…the quantity
of work in dispute, the quality of that work and whether the duties regularly assigned to
members of the bargaining unit overlap the regular duties of the other employees
concerned” are the relevant factors to consider in deciding whether the implied restriction
has been violated in any given case. The section of Brown and Beatty which summarizes
the relevant factors considered by arbitrators provides as follows:
Thus, generally employing a quantitative analysis, where the work is necessarily
incidental, or where the work assigned was no more than 15 to 20% of the [non-
- 14 -
unit] employee’s duties, it was held not to be sufficient to bring the assignee into
the bargaining unit. … Similarly, where there is an overlap between the duties
performed by two different bargaining units, it would be more difficult to
demonstrate that a reorganization resulting in a shift of some work from one
bargaining unit to another violated the collective agreement. Conversely, if the
assigned duties represented a substantial amount or greater proportion of [the non-
unit employee’s] work, or took up to one-third of the employee’s working hours,
in excess of 50&, or 90% of the employees time, the opposite conclusion was
reached. However, in these circumstances, arbitrators have also had regard to the
quality and nature of the work, as well as to the quantity assigned, in assessing the
impact of the assignment upon the bargaining unit. For example, where the
quantity of work performed was small and required a lesser skill content, an
assignment from the maintenance unit to a production unit was held not to be
contrary to the collective agreement. Indeed, one arbitrator has suggested that the
quality or skill content of the work ought to be the sole criterion in determining
whether or not the assignment brought the employee into the unit.
[7] In the 2003 Pilon decision, Vice-Chair Brown had the opportunity to apply the
relevant factors to the claim by the Union that some of the work done by PSWs had been
transferred to lawyers in the Ministry’s legal services branch. PSWs had assisted welfare
clients with obtaining court orders and responding to applications to reduce support payments
in provincial family court and unified family court. These court appearances and preparation
for them constituted a relatively small portion of the working hours of PSWs. They never
appeared in superior court. Lawyers in the legal services branch had defended arrears in
superior court, but had not appeared in family court. It was determined from the evidence that
the complement in the legal services branch increased by two lawyers due to the transfer of
family court work that had been previously performed by PSWs. After considering the
relevant factors, Vice-Chair Brown concluded that “…the use of lawyers to defend arrears in
family court contravenes the implied contractual prohibition against the assignment of
bargaining unit work to employees outside the unit. This work belongs to the union in the
sense it must be done by members of the bargaining unit if it is done at all.” The following
paragraphs illustrate how the relevant factors were applied to reach this result:
- 15 -
10. As to the quantity of work criterion, union counsel notes the amount of
arrears work in family court transferred from PSWs to three lawyers in the legal
services branch is sufficient to occupy two of them on a full-time basis, whereas
employer counsel notes this type of work consumed a very small part of the
working hours of each PSW. In the passage quoted above, Brown and Beatty
focus upon the time devoted to the contested work by those outside the bargaining
unit. Arbitrator Burkett on Irwin Toy adopted much the same focus, suggesting
there would be a breach of the collective agreement if the amount of the
bargaining unit work assigned to a supervisor was sufficient to occupy an
employee in the unit on a full-time basis. He came to this conclusion because the
purpose of the implied term protecting the work of the unit is to ensure an
employee’s job security, based upon seniority rights under the collective
agreement, is not undercut by transferring work outside the unit. I agree with this
analysis. As the amount of legal work transferred to the legal services branch is
sufficient to occupy two people, this factor weighs in favour of finding the
collective agreement has been violated.
11. As to the quality of the work criterion, union counsel notes there is no
evidence indicating PSWs lack the skills required to continue defending arrears in
family court, whereas employer counsel notes lawyers in the legal services branch
do not perform the vast majority of duties listed on the PSW position specification
which counsel characterized as “providing support to clients.” In the absence of
any evidence demonstrating a person called to the bar is better suited to defending
arrears in family court than is a PSW, I see no management interest in transferring
this work to lawyers which should over-ride the job security of members of the
bargaining unit in the context of determining the precise scope of the implied term
protecting the work of the unit.
12. The third criterion is the overlap in duties. Union counsel describes the
duties in issue as defending arrears in family court and notes this work was
performed exclusively by PSWs until they were laid off. Describing the pertinent
duties more broadly, as defending arrears in any level of court, employer counsel
notes such work was done by both PSWs and lawyers before the reorganization of
welfare services, even though these two types of employees appeared in different
levels of court. In support of the narrower description, union counsel argued an
overlap in duties is relevant only in a situation where it precludes separating the
work done by one group from that done by the other. An example of such a
scenario would be registered practical nurses and registered nurses both changing
dressings for patients on a particular ward in a hospital. According to this line of
argument, an overlap of this nature prevents both groups from claiming exclusive
ownership of their common task because there would be no basis for assigning it
to either. Counsel for the union contended the situation at hand is different
because PSWs defended arrears in a different level of court than did lawyers. I
agree. Until the reorganization of the welfare system, the defense of arrears in
family court was exclusively the function of PSWs. The claim of bargaining unit
employees to that work, as an enhancement to their job security, should not be
diminished by the defense of arrears by lawyers in superior court.
- 16 -
[8] The following principles can be distilled from the Pilon and other decisions
referenced previously. As a general rule, management can exercise its rights to assign work to
employees unless it is restricted from doing so by the Collective Agreement. In the absence of
an explicit restriction, there may be an implied restriction that impacts on management’s
transfer of work that exclusively belongs to the bargaining unit to persons excluded from the
bargaining unit. The lay-off of bargaining unit employees and the transfer of work performed
by these employees to persons outside the bargaining unit alone do not constitute a
contravention of the Collective Agreement. The integrity of the bargaining unit is affected and
a contravention of the implied restriction arises when the excluded persons are assigned
bargaining unit work to the extent that they spend close to the majority of their work day
performing that work. When this occurs, the excluded employees, in effect, become drawn
into the bargaining unit. In determining whether the implied restriction has been triggered in
any given case, it is necessary to consider the factors referenced in the Pilon decisions, i.e.
quantity of work, quality of work and overlap of duties. The focus when examining the
quantity of work is on the time devoted to the transferred work by those outside the unit. Apart
from the quality of the work, an overlap of duties may disclose that the transferred work did
not exclusively belong to the bargaining unit and may therefore not be protected by the implied
restriction. In making this observation about overlapping duties, I am mindful of the
comments made on this issue in the Sobey’s decision, supra, which Union counsel referenced
during his submissions.
[9] The agreed facts disclose that the HRAs performed clerical duties in the nature of
human resource services and administrative support in the regional and branch offices of the
MOE. Under the previous model, a significant amount of the duties performed by HRAs were
- 17 -
also performed by persons in excluded positions in the MOE’s Human Resources Branch,
namely HR Consultants and Client Support Assistants.
[10] Beginning in 2008, the government reorganized the delivery of human resources
services by centralizing them with the intent of establishing a more efficient way of delivering
these services to the Ministries. Within the new HROntario model, end-to-end recruitment
services to managers were provided by MGS Recruitment Consultants and Recruitment
Assistants. As of 2009, HR advisory services were provided to the Ministries by MGS HR
Advisors and HR Assistants. In addition to reorganizing the process for delivering human
resources services, technological changes, particularly the upgraded WIN system operated by
MGS, resulted in the streamlining of HR procedures.
[11] With a centralized human resources system, the MOE no longer required a Human
Resources Branch. The MOE also determined that it could eliminate its HRA positions. What
happened to the work performed by HRAs when these positions were eliminated is succinctly
captured by the agreed facts. Some of that work simply disappeared, in part due to
technological changes. Some of the work went to other bargaining unit members at Ontario
Shared Services. And some of the clerical work previously performed by HRAs was assigned
to employees outside the bargaining unit. The work that went outside the bargaining unit was
dispersed broadly to MOE Managers, MGS Recruitment Consultants and Assistants and MGS
HR Advisors and Assistants. Although the facts do not set out what percentage of the work
day the excluded employees spent performing the transferred duties, it is clear that these duties
constituted considerably less than 50% of their work day. The performance of the additional
clerical functions by the excluded employees did not alter the core features of their
- 18 -
classification. In other words, the MOE Managers continued to perform essentially managerial
duties in addition to some additional clerical functions and the MGS recruitment professionals
continued to perform the core functions of their positions in addition to some additional
transferred duties, etc. There is no indication from the agreed facts that the complement of
employees who received the transferred duties increased because of the assignment of HRA
duties, which distinguishes this case from the circumstances in the 2003 Pilon decision.
[12] When the principles that govern the implied restriction are applied to the agreed
facts, it is quite clear that the implied restriction is not triggered in the circumstances of this
case. The two factors that have particular relevance here are the overlap in duties and the
quantity of work in dispute.
[13] Turning first to the overlap in duties, Union counsel argued that the protection of
bargaining unit work by the implied restriction should not be diminished when the overlap
duties performed by non-bargaining unit members is so incidental to the core functions of their
positions. In my view, there is no support for this proposition. It is likely in most instances
that the duties performed by non-bargaining unit employees which overlap the work of the
bargaining unit will often be incidental to their main duties. The facts here demonstrate that
there was a fairly significant overlap in duties performed by bargaining unit members and
employees outside the unit. Given that the implied restriction protects work that exclusively
belongs to the bargaining unit, the overlap in duties in this instance compels the conclusion that
the functions performed by both bargaining unit and non-bargaining employees are not
protected. However, even if there was some merit to the Union’s position with respect to the
overlap in duties, the quantity of work criterion is determinative in this case.
- 19 -
[14] As the 2003 Pilon decision illustrates, the quantity of work factor focuses on the
time devoted to the transferred work by those outside the bargaining unit. As arbitrator Burkett
concluded in the Irwin Toy decision, the amount of bargaining unit work assigned to
individuals outside the bargaining unit required to trigger the implied restriction must be close
to an amount that would occupy an employee for a full shift. The transferred work performed
by an excluded employee in this instance, even if one included overlapping duties, does not
come close to occupying an employee for a full shift. The former duties of the HRAs that were
assigned to employees outside the bargaining unit are so incidental to their primary functions
that these transferred duties would not occupy a non-unit employee for even half a shift on an
ongoing basis. There is no basis then to conclude that the excluded employees who were
assigned some duties previously performed by the HRAs were brought into the bargaining unit.
[15] For the foregoing reasons, I am satisfied that the implied restriction was not
triggered on the basis of the agreed facts. The assignment of duties previously performed by
HRAs to excluded employees in the MOE represents a valid exercise of management’s right to
assign work. The disputed assignment in this case does not affect the integrity of the
bargaining unit as contemplated by the governing principles. Therefore, the grievance dated
August 17, 2011, is hereby dismissed with respect to the lay-off of the HRAs and the
assignment of some of their former duties to employees outside of the bargaining unit.
Dated at Toronto this 16th day of January 2013.
Ken Petryshen, Vice-Chair