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HomeMy WebLinkAbout2002-1928.Policy Grievance.03-12-19 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#2002-1928 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The 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 Mitchell Barnsters and SOlICItorS FOR THE EMPLOYER DavId Strang and Mary-Pat Moore Counsel Management Board Secretanat HEARING December 8 2003 2 DeCISIon The aSSOCiatIOn contends bargaInIng-umt work IS beIng done by persons who would be charactenzed properly as employees of the provIncIal government but are beIng treated as If they are not employees ThIS IS the fourth In a senes of Intenm decIsIOns dealIng wIth the assocIatIOn's request for dIsclosure An order for dIsclosure, Issued on July 14 2003 was amended In orders dated August 7 and September 11 The dIsclosure mandated by these orders was restncted to a sIngle mImstry eventually determIned to be Management Board Secretanat (MBS) The ImtIal order reqUIred dIsclosure of detaIls about "all people not formally desIgnated as employees, who are engaged for a penod of more than mnety days to perform work requmng regular attendance at one or more sItes controlled by the employer The order excluded "people In any category not arguably InvolvIng work of the bargaInIng umt" and stated such categones were to be "determIned through agreement of the partIes or by thIS board" In the end, no excluded categones were IdentIfied, probably because the process of determInIng them would have been more burdensome than was provIdIng dIsclosure MBS has made the reqUIred dIsclosure relatIng to 233 people The assocIatIOn now seeks an order for dIsclosure relatIng to the rest of the Ontano PublIc ServIce The proposal advanced dIvIdes mImstnes Into four groups It would reqUIre dIsclosure for the first group by March 15 2004 and for the last group by June 15 2004 OppOSIng an order of thIS scope, the employer proposes to provIde dIsclosure for the Mimstry of Health by Apnl 15 2004 I In determInIng the appropnate scope of dIsclosure at thIS tIme, I am gUIded by the same consIderatIOns whIch underlIe the order made on July 14 2003 In that decIsIOn, I wrote 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. 3 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. HavIng ordered productIOn relatIng to a sIngle mImstry I went on to say The Issue of dIsclosure for the remaInIng five mImstnes surveyed by the provIncIal audItor and for all other mImstnes, wIll be consIdered later lJ, ith the benefit of the lessons learned in dealing lJ, ith the first ministry (emphasIs added) The ImtIal dIsclosure order was based largely upon the report of the provIncIal audItor As the report provIded reasonable grounds to suspect the collectIve agreement was beIng vIOlated In a substantIal way by SIX mImstnes, I decIded the aSSOCiatIOn was entItled to dIsclosure, relatIng to those mImstnes, whIch would not had been reqUIred otherwIse Nonetheless, I determIned that the InItIal order would be lImIted to one such mImstry and that the Issue of dIsclosure for the remaInIng five would be "consIdered later wIth the benefit of the lessons learned In dealIng wIth the first mImstry " Should dIsclosure across the OPS be reqUIred at thIS stage In these proceedIngs? MBS has fulfilled ItS dIsclosure oblIgatIOn, but the substantIve Issues about people engaged by that mImstry have not been resolved. No determInatIOn has been made as to whether MBS or any other mImstry for that matter has vIOlated the collectIve agreement. In thIS context, I see no good reason to order dIsclosure by mImstnes not addressed In the report of the provIncIal audItor For these mImstnes, the assocIatIOn has not demonstrated there are reasonable grounds to suspect substantIal non-complIance wIth the collectIve agreement. SIX mImstnes come under SuspICIOn because of the provIncIal audItor's report. MBS and the Mimstry of Health are among them The employer does not obJect to provIdIng dIsclosure for the Mimstry of Health. In my VIew dIsclosure at thIS stage should be lImIted to these two mImstnes and not extend to the other four mentIOned by the provIncIal audItor I come to thIS conclusIOn for two reasons The first IS that SuspICIOn IS not the same thIng as proof no vIOlatIOns of the agreement by MBS have yet been proven. IfMBS has not contravened the agreement, one mIght reasonably wonder whether the same could be true of other mImstnes 4 cIted by the provIncIal audItor The second reason IS based upon learmng from expenence MBS makes wIdespread use of consultants The Mimstry of Health makes wIdespread use of staff seconded from transfer payment agencIes Consultants and seconded staff make up a large proportIOn of the people workIng for the provIncIal government who are not desIgnated as employees AccordIngly expenence gaIned In dealIng wIth MBS and the Mimstry of Health has the potentIal to grease the wheels of dIspute resolutIOn when attentIOn turns to the other mImstnes II The employer IS dIrected to provIde the same sort of dIsclosure for the Mimstry of Health as has been provIded for MBS Such dIsclosure shall be provIded by March 5 USIng a baselIne date of January 7 To facIlItate the process of dIspute resolutIOn, after the employer has provIded the reqUIred InfOrmatIOn about people not desIgnated as employees, I propose the folloWIng tImetable . The aSSOCiatIOn shall endeavour to Inform the employer by March 12 as to whIch people on the lIst are "claimed" by the assocIatIOn. . The employer shall endeavour to Inform the assocIatIOn, by March 26 as to whIch of the people claimed by It are not contested, and to provIde partIculars to the assocIatIOn about those dIsputed. . The aSSOCiatIOn shall endeavour to provIde, by Apnl 2, partIculars to the employer about the people claimed by It and dIsputed by the employer I declIne at thIS stage to make any orders about people engaged by the Mimstry of Health on the baselIne date but not the dIsclosure date or about people engaged by the mImstry on the dIsclosure date but not the baselIne date Dated at Toronto thIS 19th day of December 2003 ~~ chard Brown Vice-Chair