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HomeMy WebLinkAbout1994-1942.Union Grievance.02-02-20 Decision ~ ~ ~ ONTARIO EMPWYEs DE LA COURONNE ~! ~<O;~~::~E ~;o::~SSION DE IDIlIIllIa. ~..oIImII1lIlI SETTLEMENT REGLEMENT 'lIl~'" BOARD DES GRIEFS Ontano 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE. (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1942/94, 0952/00 UNION#MOH-U978, 99U025 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 Grievance) Grievor -and- The Crown In Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Barry B Fisher Vice-Chair FOR THE GRIEVOR Richard Blair Counsel Ryder Wright Blair & Doyle Barnsters & Solicitors FOR THE EMPLOYER Mary Pat Moore and Stephen Patterson Legal Services Branch Management Board Secretariat HEARING July 11, October 18 and November 13, 2001 2 INTERIM AWARD IntroductIOn ThIS InterIm Award IS In respect to a number of legal Issues that arose In a serIes of grIevances In whIch OPSEU has alleged that the MInIstry has faIled to follow the CollectIve Agreement In that It has Improperly staffed the MInIstry by USIng a number of staffing methods, namely, fee for serVIce IndIvIduals, agency employees, transfer payment employees and unclassIfied staff. In order to get a handle on the depth of the grIevance, the partIes negotIated a comprehensIve protocol on InformatIOn gatherIng, all of whIch was Incorporated Into a Board order dated May 7, 2001 ThIS order set out In great detaIl the InformatIOn to be collected, the order of the InqUIry and the questIOns to be asked Then at the hearIng on July 11, 2001 the partIes adVIsed me that before we could proceed WIth the ImplementatIOn of the May 7th protocol, they wanted an award dealIng WIth the Issue as to whether or not the MInIstry had the rIght to use agency staff to do bargaInIng unIt work That questIOn IS the subJect matter of thIS grIevance The term "agency staff refers to IndIVIduals who are employed by a prIvate enterprIse staffing agency who perform work for the MInIstry at MInIstry locatIOns alongsIde MInIstry em ployees Tnllum Drug Program It was agreed that the legal Issues would be presented WIthIn the factual context of how the TrIllum Drug Program operates 3 The Issues to be decIded were twofold 1 The first Issue IS whether or not the agency employees were performIng work that IS normally performed by bargaInIng unIt members 2 The second Issue IS, If I find that the answer to QuestIOn #lIS "Yes", can the MInIstry legally have thIS bargaInIng unIt work done by agency employees? Are agency employees In the TrIlhum Drug Program performIng work that IS normally performed by bargaInIng unIt employees? The only wItness called was Mr Carl Marshall, who IS presently the AssocIate DIrector of the Drug Programs Branch and prIOr to that he was the ActIng DIrector of the Tnlhum Drug Program He has been wIth the MInIstry over 20 years The Tnllum Drug Program provIdes for the dIrect payment of prescnptIOn drugs for certaIn people that do not have full Insurance coverage and whose drug costs In rela tIon to theIr Income entItles them to coverage Apphcants not only apply InItIally but also must renew theIr apphcatIOns every year Most apphcatIOns are sent In by mall As the program year IS August 1st to July 31st, the renewal apphcatIOns are sent out In Apnl and receIved back untIl about September InItIal applIcatIOns come In all year round ThIs means that there IS a predIctable seasonalIty to the staffing requIrements, In that from about Apnl to September 9 (In other words for about half the year) there IS a greater demand for both FIle & Mall Clerks as well as for IPCPC, who process the applIcatIOns and renewals Agency staff IS used In two posItIOns, Mall & FIle Clerk and IPCSC (InformatIOn ProcessIng and Customer ServIce Clerk) Although more of these posItIOns are used dunng the busy season, the Program uses agency employees In both posItIOns throughout 4 the year AccordIng to Mr Marshall, there has never been a tIme w hen the Program has not used agency employees for both posItIOns There are also classIfied and unclassIfied IPCSC posItIOns All the Mall & FIle Clerk posItIOns are staffed by agency employees, however It IS admItted that the posItIOn of FIle & Mall Clerk IS a posItIOn wIthIn the OPS routInely staffed by both classIfied and unclassIfied staff. In other words thIS Program routInely uses agency employees to staff ItS core staffing needs as well as It predIctable seasonal needs The MInIstry IS not claImIng that there IS any economIc advantage to uSIng agency employees Rather the only reasons gIven as to why the Program uses agency employees over bargaInIng unIt employees IS as follows 1 The Program IS lImIted In the number of classIfied and unclassIfied posItIOns that are funded under the " Staffing" lIne In theIr budget However staffing through agencIes does not show up on the Staffing lIne, as It shows up on the "Other DIrect OperatIng Expenses" ("ODOE") lIne To move money from the ODOE lIne to the Staffing lIne requIres MBS approval In other words, thIS reason has nothIng whatsoever to do wIth actual cost to the MInIstry, rather It has to solely wIth the budgetIng process 2 There have been dIscussIOns about changIng the way In whIch the Program would delIver ItS servIces, whIch may affect the number of FIle and Mall Clerk and IPCSC posItIOns requIred as the whole mall functIOn could be outsourced However thIS dIscussIOn has been gOIng on for a faIr perIod of tIme and nothIng has been decIded to date In essence there IS no dIfference at all between the work beIng performed by bargaInIng unIt members and agency staff. 5 Based on thIS eVIdence there IS no doubt In my mInd that the agency staff In the Program are performIng bargaInIng unIt work on a regular and/or seasonal basIs Is the MInIstry entItled to have bargaInIng unIt work performed on a regular or seasonal basIs by agency employees? There IS no dIspute between the partIes that the agency employees are not Crown employees and that the GSB has no JUrISdIctIOn to declare such a person an employee of the Crown, so as to brIng them wIthIn the collectIve agreement ThIs IS a result largely of sectIOns 1, 8 1(3) and 8 1(10) of the PublIc ServIce Act, whIch read as follows Section 1 Crown employee means a person who is, (a) employed in the serVice of the Crown Section 8 1 (3) An individual who is employed in the serVice of the Crown is not considered to be a Crown employee unless the individual has been expressly appOinted as such by the Lieutenant Governor in Council, the Commission or the Minister Section 8 1 (J 0) In the absence of an express appOintment of an individual as a CiVil servant, public servant or Crown employee, the individuals appOintment shall not be inferred solely from the Circumstances of hiS or her employment In recognItIon of that statutory framework, OPSEU IS seekIng a remedy whIch would requIre the employer to post those posItIOns whIch represent classIfied posItIOns and requIre the MInIstry to cease and desIst uSIng agency employees for those posItIOns whIch should be staffed by unclassIfied seasonal employees The UnIOn's posItIOn IS that thIS award does not need to cover those employees truly performIng temporary work, as the eVIdence before me IS that none of the work performed by the agency employees IS of a temporary or unexpected nature 6 There IS no express prohIbItIon In the CollectIve Agreement for "contractIng In", that IS uSIng non bargaInIng unIt employees or non employees to perform bargaInIng unIt work However the UnIOn submIts that there IS already a GSB decIsIOn that stands for the proposItIOn that there IS an ImplIed restrIctIOn In thIS collectIve agreement agaInst contractIng In ThIS IS the decIsIOn of RIchard Brown In OPSEU (Pilon) and Ministry of Comm unity and Social Services and AMAPCEO, #1254/99 et al a decIsIOn released November 5th, 2001 ThIs case Involved the Issue of whether or not the MInIstry Improperly surplussed certaIn employees when the work was transferred to non bargaInIng unIt employees of the Crown. VIce ChaIr Brown, on page 20 of the award says as follows Based upon the numerous awards cited by Brown and Beatty, I have no hesitation in concluding that 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 ha ve managerial responsibilities The MInIstry says that the Pilon case only relates to the Issue of uSIng non bargaInIng unIt Crown employees to do OPSEU work, whIch IS not the case before me as here we have non Crown employees dOIng bargaInIng unIt work I agree that the Issue raIsed In the Pilon case IS dIfferent, however the real Issue IS whether the lOgIC and ratIOnale that lImIts thIS employer from uSIng Crown employees to perform bargaInIng unIt work should also not apply to lImIt thIS employer from uSIng non Crown employees from dOIng bargaInIng unIt work The labour relatIOns ratIOnale behInd thIS rule IS that wIthout such an 1m plIed restrIctIOn, the em ployer could undermIne the unIOn's collectIve agreement rIghts by assIgnIng most or all of the work performed by ItS members to other em ployees The same labour relatIOns mIschIef can also be 7 achIeved through the process of uSIng agency employees to perform bargaInIng unIt work TakIng the MInIstry's argument to ItS natural extreme, the MInIstry, Indeed the entIre ProvIncIal Government, could staff most or all of ItS OPSEU Job functIOns through the use of prIvate sector staffing agencIes The MInIstry also argued that the eVIdence shows that the Program has a long hIstory of uSIng agency employees to do bargaInIng unIt work, In fact as far back as 1995 when the Program started ThIs IS true, but what IS also true IS that one of the two grIevances beIng heard by me In thIS proceedIng IS GSB#1942/94, whIch tells me that the UnIOn filed a grIevance over the MInIstry's staffing practIces even before the Program was started Therefore, throughout the entIre lIfe of thIS Program, the MInIstry must be taken to have known that ItS staffing practIce of uSIng agency employees to do OPSEU work was under attack One cannot rely on a past practIce when that practIce has always been the subJect of an unresolved grIevance The MInIstry argues that OPSEU IS trYIng to do IndIrectly what It cannot do dIrectly, that IS have the GSB make these agency employees become Crown employees It may well be that the net effect of an award In favour of the UnIOn would force the MInIstry to change ItS staffing procedure, however I am requIred to Interpret and apply the language In the collectIve agreement and the relevant statutes as they presently eXIst and determIne the proper InterpretatIOn The fact that I may find that the eXIstIng language In the PublIc ServIce Act and the collectIve agreement does not prevent me from grantIng the remedy requested In no way prevents the employer from eIther trYIng to negotIate a change at the bargaInIng table or, as It has does In the past when faced wIth GSB awards that It strongly dIsagrees wIth, use ItS legIslatIve power to amend the statutory framework so as to allow the government to staff ItS workforce In an unfettered manner by uSIng prIvate agency employees to staff permanent and seasonal posItIOns 8 I note that the MInIstry In theIr argument refers to the persons In questIOn as " Temps", thereby ImplYIng that thIS case IS about whether or not the MInIstry can use non Crown employees to staff truly temporary posItIOns As I have saId before, that IS not the case before me as the eVIdence shows that all the posItIOns In questIOn would be eIther seasonal unclassIfied or classIfied employment If the persons performIng that Job were Crown em ployees Is there any statutory language whIch would prevent me from orderIng the remedy requested? In my opInIOn the sectIOns of the PublIc ServIce Act cIted above only prevent the GSB from transformIng the status of an IndIvIdual employed In the serVIce of the Crown, but In no way affects my JUrISdIctIOn to determIne whether the work performed by that IndIVIdual IS covered by the collectIve agreement Therefore I find that there IS no express statutory lImItatIOn upon my power to award the remedy requested The MInIstry also raIses an argument flowIng from the UnIOn recognItIon clause In ArtIcle 1 of the collectIve agreement The relevant prOVISIOns are as follows 11 The Ontario Public Service Employees Union (OPSEW for the purpose of thiS Central Collective Agreement is recognized as the exclusive bargaining agent for a bargaining unit consisting of all employees contained within the following bargaining units 1 2 For greater certainty, such employees include classified and unclassified employees, students, GO Temps, and such other employees as may be mutually agreed The MInIstry's argument IS that by lIstIng exactly those types of employees covered In ArtIcle 1 2 and by provIdIng that other employee groups could be expressly added to the lIst by 9 mutual agreement, thIS shows that the partIes understood that there were persons performIng OPSEU work who were not Included In the collectIve agreement SInce all the partIes knew that the MInIstrIeS used agency employees, It must be that they Intended to exclude the work performed by these IndIvIduals unless otherwIse agreed to As such, the partIes have not negotIated an "eIther/or" recognItIon clause, as In most collectIve agreements In the prIvate sector The UnIOn's response IS that all that ArtIcle 1 2 sImply means that the Issue of legItImate temporary employees IS stIll unresolved as to whether or not they are covered by the bargaInIng unIt, however that IS not the case before me, whIch Instead Involves the use of agency employees to staff classIfied and seasonal unclassIfied employees I find that the InclusIOn of ArtIcle 1 2 IS not sufficIent proof that the partIes agreed that agency employees fillIng permanent and seasonal posItIOns could eXIst ou tSIde the collectIve agreement Instead It seems that the partIes sImply recognIzed that there may be other groups, whIch may not even eXIst at the tIme the collectIve agreement was entered Into, whIch they could agree to add to the bargaInIng unIt at some future date In essence, If thIS employer were to be allowed an unfettered rIght to staff permanent and seasonal posItIOns by uSIng agency employees, It would serIOusly undermIne and perhaps destroy the entIre basIs of the UnIOn's bargaInIng rIghts For such a powerful rIght to eXIst, there would have to be clear and unambIguous language In eIther the collectIve agreement or the governIng legIslatIon I find that there IS no such clear and unambIguous language In eIther the collectIve agreement or the governIng legIslatIon In summary I find that (1) Based on the Pilon decIsIOn, there IS an ImplIed term In thIS collectIve agreement that prohIbIts the employer 10 from uSIng non bargaInIng unIt employees to perform bargaInIng unIt work (2) ApplYIng the lOgIC and reasonIng behInd the Pilon deCISIOn, the ImplIed term should be expanded to Include a prohIbItIon agaInst uSIng contracted In agency employees from performIng bargaInIng unIt work that would otherwIse be done by classIfied and/or seasonal unclassIfied employees (3) The PublIc ServIce Act does not lImIt the power of the GSB to order that the employer post Jobs pursuant to the collectIve agreement or to order that the employer cease and desIst from uSIng agency employees for work properly In the bargaInIng unIt (4) ThIs award IS not dealIng wIth the Issue of whether or not the MInIstry can use agency employees to staff truly temporary posItIOns (5) There IS no past practIce that the MInIstry can rely upon as thIS gnevance predates the start of the staffing practIce In questIOn In the Tnllum Drug Program I therefore find that agency employees were performIng work of the bargaInIng unIt In the Tnllum Drug Program and that the GSB has the JunsdIctIOn to both order the Employer to post classIfied posItIOns and to cease and desIst from staffing seasonal unclassIfied posItIOns WIth agency staff. 11 The partIes are to contact the RegIstrar to set up more heanng dates Dated at Toronto, thIS 20th day of February, 2002 Barry B FIsher, VIce ChaIr