HomeMy WebLinkAbout2002-1928.Policy Grievance.03-07-14 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 1928/02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
ASSOcIatIOn of Management AdmInIstratIve
and ProfessIOnal Crown Employees of Ontano
(PolIcy Gnevance) Grievor
- and -
The Crown In RIght of Ontano
(Management Board Secretanat) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Andrea Bowker
Sack Goldblatt Mitchel
Barnsters and SOlICItorS
FOR THE EMPLOYER DavId Strang
Counsel
Management Board Secretanat
HEARING July 7 2003
2
DECISION
The Instant dIspute concerns the performance ofbargaInIng-umt work by people who are not
members of the umt. The assocIatIOn contends such work IS beIng done by non-members who
would be charactenzed properly as employees of the provIncIal government but are beIng
treated as If not employees ThIS Intenm decIsIOns deals wIth the assocIatIOn's request for
productIOn of documents and other matenals
I
The dIspute IS dated October 28 2002 and states
The AssocIatIOn asserts that the Employer's practIce of USIng transfer payment and
other agency or thIrd party employees to perform bargaInIng umt work constItutes a
vIOlatIOn of the collectIve agreement. In partIcular the AssocIatIOn asserts that the
collectIve agreement restncts the Employer from assIgmng work normally performed
by members of the AMAPCEO bargaInIng umt to persons not part of that bargaInIng
umt.
Without restnctIng the generalIty of the foregoIng, the Employer has vIOlated the
collectIve agreement by among other thIngs,
. Entenng Into contracts wIth vanous outsIde agencIes, IncludIng transfer
payment agencIes to supply IndIVIduals,
. Entenng Into contracts wIth IndIVIduals, and
. HavIng IndIVIduals seconded from outsIde agencIes
to perform work normally performed by members of the AMAPCEO bargaInIng umt.
Although the extent and partIculars of the practIce beIng dIsputed hereIn IS fully wIthIn
the knowledge of the Employer by thIS gnevance AMAPCEO requests dIsclosure and
partIculars of all contracts and other arrangements wIth agencIes and IndIVIduals
performIng work of the AMAPCEO bargaInIng umt.
As a result the Employer has vIOlated ArtIcle 1 3 16 18 and all other relevant artIcles
and ImplIed restnctIOns contaIned In the collectIve agreement by fallIng to post and fill
vacanCIes In accordance wIth the collectIve agreement, and the collectIve agreement as
a whole by faIlIng to apply It to work and/or persons covered by the collectIve
agreement.
By way of redress, AMAPCEO seeks
. a declaratIOn that thIS practIce vIOlates the collectIve agreement;
. an order that the work currently beIng performed by non-members of the
bargaInIng umt as complaIned of In thIS dIspute be performed by members of
the bargaInIng umt;
3
. an order that the Employer post vacanCIes In accordance wIth the collectIve
agreement;
. an order that the Employer pay damages to the AssocIatIOn eqUIvalent to the
amount of AssocIatIOn dues that would have been remItted to the AssocIatIOn
had the collectIve agreement not been vIOlated,
. such further and other relIef as may be reqUIred to remedy the Employer's
vIOlatIOns of the collectIve agreement.
The aSSOCiatIOn's request for dIsclosure was first set out In a letter dated February 17
2003
The above-noted gnevance IS scheduled for heanng on March 27 2003 I wnte In
antIcIpatIOn of that heanng date, and In response to the Government's request for
partIculars dated November 28 2002
Needless to say AMAPCEO IS not In a posItIOn to know the partIculars of each and
every vIOlatIOn of the collectIve agreement resultIng from the use of temporary agency
or other non-bargaInIng umt members to perform work normally performed by
members of the AMAPCEO bargaInIng umt. In the dIspute filed October 28 2002,
AMAPCEO specIfically requested productIOn of documents detaIlIng the contractual
and other arrangements between the Government and other fee entItIes or IndIVIduals
performIng work normally performed by members of the AMAPCEO bargaInIng umt
IncludIng, but not lImIted to fee for servIce arrangements, arrangements WIth transfer
payment agencIes, secondments, and vendors of record. These documents and detaIls
are wIthIn the knowledge of the Government. We hereby renew our request for
productIOn and request that the necessary documents be provIded to us In a tImely
fashIOn. These documents would Include, but are not lImIted to
1 Internal documents pertaInIng or preparatory to arrangements wIth outsIde (i e
non-AMAPCEO) entItIes or IndIVIduals to perform work normally performed
by members of the AMAPCEO bargaInIng umt;
2 requests for proposals, requests for Interest, tender documents or any other type
of documents relatIng to the solIcItatIOn of outsIde entItIes or IndIVIduals to
perform work normally performed by members of the AMAPCEO bargaInIng
umt;
3 responses receIved by the Government to the documents set out In #2, above,
and all other expreSSIOns of Interest, whether In response to the documents set
out In #2 or not, In performIng work normally performed by members of the
AMAPCEO bargaInIng umt;
4 contracts, InVOICeS or any other type of documents govermng or pertaInIng to
the performance of work normally performed by members of the AMAPCEO
bargaInIng umt by outsIde entItIes or IndIVIduals, and
5 partIculars of the work performed by such IndIVIduals or entItIes and any
documents settIng out the scope of work performed
4
Please note that the term "documents" Includes, but IS not lImIted to correspondence,
contracts, memos, notes, data, InVOICeS and mInutes, In any form IncludIng, but not
lImIted to wntten, electromc and audIO vIsual commumcatIOns or InfOrmatIOn.
At the heanng, counsel for the assocIatIOn stated paragraph 5 Includes "work product" and also
noted her clIent was "Interested" In people dOIng bargaInIng umt work SIxty days before the
gnevance was filed. Counsel said the assocIatIOn would be happy to receIve ImtIally "some
sort of summary" of relevant InfOrmatIOn rather than sources documents and other matenals
The assocIatIOn's letter of February 17 also contaIned the folloWIng response to the
employer's request for partIculars
By way of partIculars of the dIspute, we provIde the folloWIng Instances as examples only
of whIch we understand that AMAPCEO work IS beIng performed by non-AMAPCEO
bargaInIng umt members, but expressly do not lImIt the dIspute to the folloWIng Instances
1 Semor FInanCIal Analyst, MOHL TC Health Care Programs DIvIsIOn, FInance
and InformatIOn Management
2 RegIOnal Program Consultant, A TG North RegIOn VictIm ServIces DIVIsIOn
Office
3 RegIOnal CoordInator (ActIng) MOHL TC Health Care Programs DIvIsIOn,
North RegIOn Branch, Planmng and Support
4 UAP ProJect Manager MOHLTC Health Care Programs DIvIsIOn, Under-
servIced Area Program, Northern Health Programs
5 FIC SpecIal ProJects, MOHLTC Finance and InformatIOn Management,
DIvIsIOnal Finance - HospItals
6 OIS SpecIalIst, MCFCS BusIness SolutIOns DIvIsIOn, ChIldren's Programs and
Corporate Systems I&IT
7 Consultant, METCU EducatIOn FInance Branch, FInanCIal ForecastIng and
ModellIng Umt
8 Consultant, METCU BusIness Planmng and ExpendIture Management Branch,
BusIness Planmng and FInancial Umt
9 RegIOnal TraInIng CoordInator MOHL TC Emergency Health ServIces\
10 Planner MMAH, ProvIncIal Planmng and EnvIronmental ServIces Branch,
LegIslatIOn and Research SectIOn
11 Consultant, MMAH, MumcIpal FInance Branch, Tax and Revenue PolIcy SectIOn
5
12 IFIS ImplementatIOn ProJect, BusIness Planmng and FinancIal Management,
MBS
- BusIness Process Analyst
- Systems Analyst
- IFIS IT Team Lead
- CommumcatIOn and TraInIng CoordInator
-BusIness Team Lead
13 AccommodatIOn CoordInator MBS BusIness Planmng and FinancIal
Management Branch AccommodatIOn ServIces
14 Consultant, MBS ApplIcatIOn Support ServIce Systems Branch, Corporate
BusIness SolutIOns
II
In support of the request for dIsclosure, counsel for the aSSOCiatIOn referred me to the 2002
Annual Report of the Provincial Auditor of Ontario Counsel submItted for my consIderatIOn
the portIOn of thIS report surveYIng the use by SIX mImstnes of consultIng servIces as defined In
the Management Board of CabInet DIrectIve on ConsultIng ServIces The audItor's report lIsts
the mImstnes Involved and descnbes the audIt procedure used
The scope of our audIt Included the folloWIng SIX mImstnes (the Mimstnes)
Management Board Secretanat and the mImstnes of the EnvIronment, Finance, Health
and Long-Term Care, Natural Resources, and PublIc Safety and Secunty (PublIc Safety
and PolIcIng ServIces DIVIsIOns only constItutIng the former Mimstry of the SOlICItor
General) Our audIt work Included IntervIews WIth appropnate staff at the Mimstnes, a
reVIew of the DIrectIve and other relevant admInIstratIve procedures, and an
eXamInatIOn of consultIng servIces contracts, InVOICeS, and other related documents
Pnor to the commencement of our audIt, we IdentIfied the audIt cntena that would be
used to conclude on our audIt obJectIves These were revIewed and agreed to by semor
management at the Mimstnes
Our audIt was performed In accordance wIth the standards for assurance engagements,
encompaSSIng value for money and complIance, establIshed by the CanadIan InstItute
of Chartered Accountants, and accordIngly Included such tests and other procedures as
we consIdered necessary In the CIrcumstances
The audItor reported these SIX mImstnes spent $293 mIllIon on consultIng servIces In
the 2001/02 fiscal year approxImately three tImes more than In 1997/98 (page 180) Under the
headIng "ContInUOUS RelIance on Consultants and AssIgnment DefimtIOn" the report states
6
We found numerous instances in lJ, hich Ministries did not comply lJ, ith the Directive
requirements that
. consultants must only be hired on a defined assignment
SpecIfically
. Many of the Mimstnes depended heavIly on the use of consultants, partIcularly
In the area of InformatIOn technology as the examples In the folloWIng table
Illustrate
Consultant Use at Ministries, 2001/02
Mimstry # of IT # of IT
Consultants Employees
Management Board Secretanat 170 540
Health and Long-Term Care (Human ServIces Cluster) 120 350
PublIc Safety and Secunty (Infrastructure ServIces) 100 90
Natural Resources 65 275
Sources of data Management Board Secretanat, Health and Long- Term Care, Natural
Resources, and PublIc Safety and Secunty
On average the per diem rates of these consultants lJ,ere tJ+o to three times the salaries
and benefits of comparable employees at the Ministries.
The Ministries acknolJ,ledged that many consultants lJ,ere engaged to perform day-to-
day operational duties rather than lJ,ork on defined assignments. According to the
Ministries the reason that they had to extensively rely on the use of consultants lJ,as
that, in recent years they had had more difficulty in obtaining approval and funding to
increase the number of their full-time staff and salaries ranges to the levels needed to
attract qualified candidates. However such use of consultants was not In complIance
WIth the reqUIrements of the DIrectIve that consultants only be hIred on a defined
aSSIgnment and that mImstnes must aVOId contInUOUS relIance on consultants
We also noted that, at the Ministry of Public Safety and Security more than 40
consultants lJ,ere former ministlY employees lJ,ho had left the Ministry in 2001 and lJ,ere
subsequently hired by consulting firms. They returned to the MinistlY as consultants to
perform their previous duties at per diem rates that lJ,ere much higher than their
salaries as ministry employees. The DIrectIve states that engagIng the servIces of
former employees must bear the closest publIc scrutInY to ensure that no unfair
advantage eXIsts CautIOn must be partIcularly exercIsed If less than one year has
passed SInce former staff left the employment of a mImstry In thIS case, we found that
the maJonty of the consultants came back WIthIn a few days of havIng left the Mimstry
(pages 181 and 182 emphasIs added)
AccordIng to counsel for the assocIatIOn, these passages from the audItor's report demonstrate
the practIce challenged by her clIent IS "rampant throughout the OPS "
7
F or posItIOns on the assocIatIOn's lIst of partIculars, counsel for the employer offered to
provIde most of the matenal sought. As to all other posItIOns, counsel descnbed the
assocIatIOn's request for productIOn as a "fishIng expedItIOn" conducted In the hope of
uncovenng vIOlatIOns of the collectIve agreement. Counsel argued the provIncial audItor's
report for 2002 provIdes no more support for the Instant productIOn request than a report
documentIng payroll errors would provIde for a request to produce all payroll records
In reply counsel for the assocIatIOn argued there IS a sIgmficant dIfference between a
dIspute about who IS performIng bargaInIng-umt work and one about pay AccordIng to thIS
lIne of argument, any employee who has been short changed knows, or ought reasonably to
know what has occurred and can provIde partIculars to the bargaInIng agent. In contrast, an
employee cannot easIly determIne whether someone dOIng work of the bargaInIng umt at the
next desk IS beIng treated as a consultant. The assocIatIOn also has no ready way to obtaIn the
InfOrmatIOn necessary to make thIS sort of determInatIOn. ThIS InfOrmatIOn IS not readIly
avaIlable to the aSSOCiatIOn or ItS members, but It IS possessed by the employer
In support of the argument that management IS reqUIred to dIsclose InformatIOn not
avaIlable to other dIsputants, counsel for the assocIatIOn relIes upon OLBEU and Liquor
Control Board of Ontario FIle No 0923/97 decIsIOn dated December 1 1997 (Knopf) where
the umon requested dIsclosure of all matenals relIed upon or produced by the selectIOn panel
conductIng aJob competItIOn. GrantIng thIS request over management's obJectIOn to a "fishIng
expedItIOn" Vice-Chair Knopf noted "the InformatIOn whIch IS beIng requested IS WIthIn the
sole control of the Employer" (page 6)
I do not VIew the assocIatIOn's request for productIOn as a "fishIng expedItIOn." The
report of the provIncial audItor provIdes reasonable grounds to suspect that bargaInIng-umt
work In SIX mImstnes IS beIng done by a substantIal number of people outsIde the umt who
would be charactenzed properly as employees In addItIOn, the dIspute at hand IS sIgmficantly
dIfferent than one about employees beIng underpaid, as the employer has ready access to
InfOrmatIOn, not accessIble to other dIsputants, about who IS performIng bargaInIng umt work.
For these reasons, I conclude the assocIatIOn IS entItled to some form of dIsclosure for at least
the SIX mImstnes mentIOned In the audItor's report.
8
III
DIsclosure should be taIlored wIth the folloWIng obJectIves In mInd
. to provIde InformatIOn arguably relevant to the IdentIficatIOn of people performIng
bargaInIng-umt work who are not members of the umt even though they would be
charactenzed properly as employees of the provIncIal government;
. to ensure the process of dIsclosure IS expedItIOus and does not entaIl undue cost; and
. to ensure the larger dIspute process also IS expedItIOus and does not entaIl undue cost.
Beanng these obJectIves In mInd, I Issue the folloWIng order for ImtIal dIsclosure
1 The employer shall provIde to the assocIatIOn a lIst of the names of all people, save
those expressly excluded by paragraph 5 below not formally desIgnated as employees,
who are engaged for a penod of more than mnety days, whIch penod Includes a
common baselIne date for all IndIVIduals, to perform work requmng regular attendance
at one or more sItes controlled by the employer
2 The lIst shall be accompamed by InformatIOn about each IndIVIdual IncludIng the start
and end dates of the engagement, the geographIc locatIOn, the type of work and the
current desIgnatIOn of the IndIVIdual's relatIOnshIp wIth the employer The precIse
scope of the InfOrmatIOn to be provIded may be determIned through agreement of the
partIes or by thIS board on the applIcatIOn of eIther party
3 The lIst and accompanYIng InfOrmatIOn shall be provIded by September 4 2003 one
week before the next heanng date, for one of the SIX mImstnes surveyed by the
provIncIal audItor That mImstry shall be selected through agreement of the partIes or
by thIS board on the applIcatIOn of eIther party
4 The baselIne date for dIsclosure under paragraph 3 above shall be the date of thIS order
unless vaned through agreement of the partIes or by thIS board on the applIcatIOn of
eIther party
5 The lIst described In paragraph 1 above shall not Include people In any category not
arguably InvolvIng work of the bargaInIng umt, such categones to be determIned
through agreement of the partIes or by thIS board on the applIcatIOn of eIther party
6 The date of September 4 2003 In paragraph 3 above may be vaned through agreement
of the partIes or by thIS board on the applIcatIOn of eIther party
7 The penod of mnety days and the reqUIrement for regular attendance In paragraph 1
above may be vaned through agreement of the partIes or by thIS board on the
applIcatIOn of eIther party
9
The Issue of dIsclosure for the remaInIng five mImstnes surveyed by the provIncIal audItor
and for all other mImstnes, wIll be consIdered later wIth the benefit of the lessons learned In
dealIng wIth the first mImstry
Dated at Toronto thIS 14th day of July 2003
R~~
/RIchard Brown, Vice-Chalf