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HomeMy WebLinkAbout2003-0001.Union Grievance.03-04-17 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# 0001/03 UNION# 2003-0999-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown III RIght of Ontano (Management Board Secretanat) Employer BEFORE Susan L Stewart Chair FOR THE UNION Paul Cavalluzzo Cavalluzzo Haves Shllton McIntvre & CornIsh Bamsters and SolIcItors FOR THE EMPLOYER Chnstopher RIggs Hicks Morle, Hamilton Stewart Stone LLP Bamsters and SolIcItors FOR THE INTERVENOR Lome RIchmond Sack, Goldblatt Mitchell Bamsters and SolIcItors HEARING Apnl15 2003 2 DECISION ThIS decIsIOn deals wIth an apphcatIOn for mterlln rehef m relatIOn to the Employer's mtentIOn to Implement a process for employee secunty checks on Thursday, Apnll7, 2003 The apphcatIOn was made by OPSEU, m connectIOn wIth a UnIon gnevance dated Apnll, 2003 AMAPCEO mtervened m tlus proceedmg, m connectIOn wIth a gnevance dated Apnl 9, 2003 The UnIons seek an order prohIbItIng the Employer from proceedmg wIth thIS process untIl such tIme as the Gnevance Settlement Board has dIsposed of the gnevances on theIr ments The Employer opposes such an order I wIll deal wIth the CIrcumstances gIvmg nse to the gnevances m a summary manner On January 23, 2003, the Employer presented the CERC commIttee WIth a document entItled "Bargammg Agent ConsultatIOns Employee Secunty Checks", whIch IS descnbed as a "Proposal for DISCUSSIOn and ConsultatIOn Only" attached to whIch IS a document entItled "Employee Secunty Checks Operatmg Pohcy" whIch IS described as a "ConfidentIal W orkmg Draft for DISCUSSIOn Only" Ms M. SImmons, who testIfied on behalf on OPSEU m tlus proceedmg, and IS Co-Chair of the CERC commIttee, stated that tlus was the first fonnal notIficatIOn of tlus mItIatIve, although she was aware that the Employer had been consIdenng such an mItIatIve The UnIon 3 put the matter on the agenda for a subsequent MERC meetmg, however the Employer advIsed that It would not be dIscussed there Arrangements were made for a dIscussIOn of thIS matter between OPSEU's general counsel, Mr T Hadwen, and an Employer representatIve to be held on Apnl 9, 2003 At a multI bargammg agent mfonnatIOn seSSIOn on March 26, 2003, the OPS bargammg agents were presented wIth a document entItled "Personnel Secunty Checks Bargammg Agent DIsclosure" as well as a "QuestIOns and Answers" document, descnbed as a "ConfidentIal Draft" At tlus tllne the bargammg agents were advIsed that the process would commence wItlun two weeks, although the dIsclosure document mdIcates that "consultatIOn meetmg[ s] are planned for Apnl 2003 to dISCUSS bargammg agent feedback to proposed pohcy and ItS ImplementatIOn" Ms SImmons was unchallenged m her testImony that ImplementatIOn was presented on March 26, 2003, as a "fait accomph" Ms SImmons was also unchallenged m her testImony that a "final" operatmg pohcy has not been presented by the Employer Secunty checks of vanous kmds have been m place m certam mmIstnes for some tllne, partIcularly and most understandably m mmIstnes such as correctIOns The ratIOnale for expanSIOn IS expressed m some of the matenal prepared by the Employer and artIculated by Mr Riggs at the heanng as ansmg from heIghtened secunty conSCIOusness throughout the world, partIcularly m hght of the extent to whIch the busmess of the provmce IS conducted electronIcally and the Importance of protectmg 4 the mtegnty of IdentIty documentatIOn In connectIOn wIth the mtegnty of IdentIty documentatIOn, reference was made to "cross certIficatIOn", that IS provIdmg the same level of secunty certIficatIOn of employees as that eXIstmg federally m connectIOn wIth mfonnatIOn that IS exchanged between these levels of government The llnplementatIOn process m connectIOn wIth tlus mItIatIve IS scheduled to commence Apnll7, 2003, affectmg about 2,000 employees It IS to affect two groups m Management Board, those who operate and support the Pubhc Key Infrastructure system, the system that supports the electronIc dehvery of government serVIces and those m corporate systems secunty These employees wIll be subject to CPIC (CanadIan Pohce InformatIOn Centre) checks as well as a credIt check. It IS also to affect employees m the MmIstnes of Health and Long Term Care, Consumer and Busmess SerVIces and the MmIstry of TransportatIOn where IdentIty documents such as dnvers' hcences, bIrth certIficates and health cards are created. These employees are to be subject to CPIC checks, local pohce checks to "IdentIfy whether the employee IS known to the pohce", fingerpnnt checks, natIOnal secunty checks and credIt checks The ratIOnale for credIt checks IS expressed m the March 24, 2003 dIsclosure document as follows a satIsfactory credIt ratmg wIll mdIcate that employees/ prospectIve employees have no senous financIal CIrcumstance that mIght make them vulnerable to usmg sensItIve, pnvate IdentIty mformatIOn for personal financial gam or to be m a posItIOn to be coerced mto provIdmg confidentIal IdentIty mformatIOn 5 The first step m Implementmg thIS mItIatIve IS the executIOn of a consent form by the employee In the absence of the consent form the Employer would not be able to obtam the checks If an employee refuses to execute a consent form, the draft pohcy mdIcates that the employee wIll be removed from the posItIOn desIgnated as reqUInng a secunty clearance SllnIlarly, If the secunty clearance IS not granted, the employee wIll not be able to remam m the posItIOn The first matter to be addressed IS the Board's authonty to Issue the mterlln order requested. On behalf of the Employer, Mr RIggS argued that the Board has no such authonty ThIS argument was prevIOusly advanced before the Board m Ontano Human RIghts CommIssIOn & OPSEU (Fox et an 0507/01 (Stewart), m connectIOn wIth an analogous matter and was reJected In that decIsIOn, reference was made to the fact that the Board's authonty m thIS regard has been addressed m JudIcial reVIew The Board has estabhshed a consIstent body of Junspnldence m thIS regard, m accordance wIth the Court's nllmg, mcludmg an order for mtenm rehef m connectIOn wIth a maJor government pohcy mItIatIve relatmg to dIvestment The arguments advanced by Mr RIggS do not provIde a basIs for a departure from the estabhshed Junsprudence of tlus Board I do not VIew the order sought here as wItlun the realm of an "antIcIpated breach", referred to m MmIstry of Labour & OPSEU (NIeld), 1471/96, (Roberts), as suggested by Mr RIggS As of March 26,2003, the mItIatIve whIch gIves nse to the 6 gnevances was m effect, a "fait accomph" Accordmgly, I reJect the submIssIOn of the Employer that thIS Board IS wIthout JunsdIctIOn to Issue the order requested. GIven thIS conclusIOn there IS no need to address Mr RIchmond's submIssIOn m relatIOn to the Statutory Powers Procedure Act I turn now to the ments of the mterlln rehef apphcatIOn The grantmg of mtenm rehef reqUIres me to be satIsfied that the apphcant has an arguable case and that a balance of convenIence or hann favours the apphcant There are a number of bases upon whIch OPSEU and AMAPCEO take Issue WIth the Employer's mItIatIve These mclude the contentIOns that It does not meet the test of a reasonable rule pursuant to the management nghts prOVISIOns of the CollectIve Agreements, that It does not accord wIth the prOVISIOns of the Freedom of InformatIOn and Pnvacy Act, and that It vIOlates certam Charter nghts The Employer's posItIOn IS that the arguments raised by the UnIons are wIthout ment The ment of any and all posItIOns advanced by the UnIons IS, of course, to be determmed after full eVIdence and argument However, my reVIew of the authontIes and the submIssIOns of counsel thereon compel me to the conclusIOn that there IS an arguable case I turn now to the Issue of the balance of convenIence and potentIal hann The Employer has IdentIfied secunty consIderatIOns as the ratIOnale for ItS actIOns The 7 Employer IS clearly desIrous of proceedmg wIth dIspatch, to the extent that It decIded to proceed wIth the mItIatIve notwIthstandmg the fact that the level of consultatIOn contemplated m connectIOn wIth thIS mItIatIve had not transpIred and the pohcy pursuant to whIch these secunty checks remamed m draft form However, on the mfonnatIOn before me, concrete, Immediate concerns are not readIly apparent In partIcular, m relatIOn to the matter of "cross certIficatIOn", there was no mdIcatIOn the provmce's ongomg relatIOnslup wIth ItS federal counterparts IS m any way mJeopardy If the status quo that has eXIsted for many years m these MmIstnes contmues pendmg the resolutIOn of tlus dIspute In contrast, If the mItIatIve IS allowed to proceed, there IS potentIal harm that could not be remedIed by an award of damages, should the UnIons ultImately be successful There IS no way to actually reverse a fingerpnntmg exerCIse The dIsplacement of employees removed from theIr Jobs because of a refusal to consent to a secunty check or because of an unsatIsfactory secunty check can be remedIed on a gomg forward basIs but not retroactIvely The questIOned mtegnty of those who may be dIsplaced because of an unsatIsfactory credIt ratmg could not be undone It IS my conclusIOn, m balancmg the mterests m relatIOn to thIS branch of the test for mtenm rehef, that the pnvacy mterests of the employees represented by the UnIons clearly outweIgh the mterests of the Employer m the partIcular CIrcumstances of tlus case Accordmgly, It IS my conclusIOn that the apphcants are entItled to mtenm rehef and the Employer IS hereby dIrected to ref ram from proceedmg wIth ItS Personnel 8 Secunty Checks mItIatIve untIl such tIme as the gnevances have been dIsposed of by thIS Board The heanng on the ments wIll be scheduled by the RegIstrar m consultatIOn wIth the partIes Dated at Toronto, tlus 1 ih day of Apnl, 2003 ~:\ "- ," .. .. . ,,' , . ^. .. ~ ' . -.............-.. '. . ". '., . .,~...'".' . . ' ' ., ~ . ~ .-." '" .. - , : . . . ... ,. j' ". . ~ '.". . . '" ,~ . " ~ > . .. . S.L Stewart, Chair