HomeMy WebLinkAbout2003-0950.Union Grievance.03-09-02 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
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Fax (416) 326-1396 Telec. (416) 326-1396
GSB#0950/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
CanadIan Umon of PublIc Employees, Local 1750
(Umon Gnevance) Grievor
- and -
The Crown In RIght of Ontano
(Workplace Safety and Insurance Board) Employer
BEFORE Manlyn Nairn Vice-Chair
FOR THE UNION Ian Thompson
Counsel
CanadIan Umon of PublIc Employees
FOR THE EMPLOYER ElIzabeth KosmIdIs
SOlICItor
Workplace Safety and Insurance Board
HEARING June 20 2003
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AWARD
Further to a decIsIOn dated Juh 3 2003 the followmg sets out the reasons for reachmg the
conclusIOn that the persons m the posItIOn of Pnvac, Officer employed b, the Workplace Safet, and
Insurance Board (the 'WSIB ') are employees wlthm the bargammg umt represented b, CUPE Local
1750 That bargammg umt IS described as an all employee umt and the Pnvac, Officers are not
speclficalh excluded b, that descnptIOn of the bargammg umt. The employer asserted that the Pnvac,
Officers were proper!, excluded from the bargammg umt based on an alleged conflIct of mterest between
the work the, perform and theIr role as bargammg umt members were the, to be mcluded m the
bargammg umt. The partIes were agreed that I had the JunsdlctIOn to mterpret and apph not onh the
provIsIOns of the relevant collectIve agreement but also the relevant legIslatIOn, mcludmg the Labour
Relations Act 1995 and, more partlcularh the Cro>tn Emplovees Collective Bargaining Act
I wIll first reVIew the nature of the posItIOn. Then I wIll reVIew the applIcable law Fmalh I wIll
outlIne the reasons for m, earlIer conclusIOn m lIght ofthose facts and legal consIderatIOns
Ms Launsa Tkachenko testIfied as to the nature of the work performed b, the persons m the
posItIOn of Pnvac, Officer and to the Pnvac, Office as a whole Certam documents were also filed m
eVIdence The Pnvac, Office IS a relatlveh new component of the WSIB Advances m technology
changes to the Freedom of Information and Protection of Privacv Act ('FIPP A ') and Mimstn
expectatIOns and reqUIrements regardmg pnvac, of mformatIOn, have all resulted m substantlalh
mcreased attentIOn to pnvac, Issues Ms Tkachenko was mVlted m the fall of 2001 to put together a
pnvac, group WIth the mandate to develop a capaclt, wlthm the WSIB to perform pnvac, Impact
assessments She had been workmg m the WSIB mternal audIt department dealmg WIth systems
development Issues
That group qUIckh realIzed that a host of pnvac, Issues stemmed from the operatIOnal structure
and busmess of the WSIB In the course of ItS work recelvmg and determmmg claims on behalf of mJured
workers and m ItS necessan dealmgs WIth employers, the WSIB collects a vast arra, of personal and
busmess mformatIOn. A pIlot project was begun and approxlmateh SIX months later m Juh 2002, the
Pnvac, Office was establIshed as a new branch wlthm the WSIB The Office has become an Important
contributor to the effectIve work of the WSIB m lIght of thIS enhanced attentIOn to pnvac, concerns
Ms Tkachenko now DIrector of the Pnvac, Office IS responsible for strategIc and operatIOnal
leadershIp to ensure that the WSIB IS a pnvac, complIant organIzatIOn and to ensure that the Chair S
oblIgatIOns under FIPP A are fulfilled. Ms Tkachenko antICIpates two types of entItles provldmg further
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strategIc dIrectIOn and oversIght m respect of pnvac, management Issues Steenng CommIttees have been
estabhshed whIch typlcalh mclude a representatIve of management, a representatIve from CUPE, and
perhaps other members as well A Pnvac, CouncIl IS not yet m place
In terms of organIzatIOnal structure the Pnvac, Office falls wlthm the Legal ServIces DIVISIOn of
the WSIB and Ms Tkachenko reports dlrecth to the General Counsel of the WSIB who m turn, reports
to the Chair She also reports to the Pohc, & Regulaton CommIttee whIch IS responsible for the WSIB s
comphance WIth legIslatIOn. Ms Tkachenko testIfied that the Pnvac, Office reports to General Council m
order to mlmmlze an, perceIved conflIct of mterest ansmg from the fact that the office ma, have to report
on an operatIOnal area.
There IS no dIspute that Ms Tkachenko IS proper!, excluded from the bargammg umt. The partIes
have also agreed that the Freedom of InformatIOn (FOI) Coordmator also a member of the Pnvac,
Office IS proper!, excluded from the bargammg umt. FIve Pnvac, Officers have been workmg m the
pOSItIOn and Ms Tkachenko antIcIpates that more ma, be reqUIred. All report dlrecth to Ms Tkachenko
Three were recruIted from the bargammg umt and have remamed members of the bargammg umt dunng
theIr tenure m the pOSItIOn. Two were recruIted from outSIde the bargammg umt.
Imtmlh the pOSItIOn was tItled Pnvac, AdVIsor A recent Job descnptIOn, developed m
conJunctIOn WIth the persons workmg m the pOSItIOn, tItles the pOSItIOn Pnvac, Officer due accordmg to
Ms Tkachenko to the comphance component that IS mcluded m theIr dutIes
That Job descnptIOn summanzes the work of the Pnvac, Officer pOSItIOn as ensunng WSIB
comphance WIth apphcable pnvac, legIslated obhgatIOns and corporate pnvac, obJectIves and to provIde
proactIve leadershIp and servIce dehven m order to pOSItIOn and mamtam the WSIB as a recogmzed
leader m pnvac, management.
The maJor dutIes and responsiblhtles of the pOSItIOn are described as follows
1 Develop pnvacy corporate policy standards and gUldelllles to ensure orgamzatlOnal compliance With applicable
legislative reqUirements
2 Research authontJes and contidentlality proVISIOns III federal and provlllclal statutes, regulatIOns, codes and
agreements to ensure corporate policies and programs are consistent With these authontles.
3 Ensure new busllless programs and technology solutIOns are compliant With applicable pnvacy legislatIOn and
corporate pnvacy reqUirements through a review of legal authontles, contractual agreements, secunty
safeguards, data flows and busllless processes
4 Develop workable solutIOns that will overcome pnvacy-related barners III the l1nplementatlOn of electromc
service delivery strategies
5 Develop and deliver corporate pnvacy educatIOn and awareness programs to WSIB employees and external
stakeholders, such as but not l111uted to the SWA s, HSAs and pnvate sector busllless partners
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6 Lead and l1nplement pnvacy mtegratlOn activIties across the orgalllzatlOn, mcludmg entorcement of pnvacy
reqUirements while tocusmg on the long-term WSIB goals and objectives Provide appropnate directIOn to
program and project management.
7 Respond mdependenth to sensitive and contentIOus Issues ansmg trom employee complamts over pnvacy
matters while mamtal111ng contidentlality This may mclude
Provldmg a pnvacy advice to management on labour relatIOns Issues.
Take a positIOn m advocatmg change which may Impact employees wltll1n the WSIB
Defendmg the WSIB's positIOn and or the actIOns of ItS employees agamst pnvacy breach allegatIOns and
complamts be10re the IPC
8 Conduct pnvacy Impact assessments on key strategic projects mcludmg slglllticant mvestments m technology
and m support of Memoranda of Understandmg undertaken with other government mmlstnes and agencies
such as MORL TC MOL, CCRA and other data shanng l111twtlves reqUlnng approval by the Lieutenant
Governor m Councilor the IntormatlOn and Pnvacy CommlSSlOnerOntano [IPe]
9 Prepare tormal reports ultl1nately gomg to se1110r management and the Policy & Regulatory Comnl1ttee on
pnvacy compliance Issues, mcludmg WSIB employee workplace pnvacy with specJtic recommendatIOns to
senIOr management tor orga111zatlOnal adoptIOn.
10 Mamtam current knowledge of the Workplace Safety and Insurance Act, FIPPA and other applicable pnvacy
legislatIOn and objectives, mcludmg the IPC orders and Management Board directives. Mamtam awareness of
advancements m pnvacy enhancmg technologies and changes m legislatIOn or ItS mterpretatlOn through
ongomg research and networkmg.
11 Receive mvestlgate and resolve all pnvacy complamts concernmg the orga111zatlOn's policies and procedures
m coordmatlOn with other similar functIOns and, when necessary legal counsel This mcludes WSIB
management, employees, customers, clients and external stakeholders such as the IPC to ensure compliance
with the IPC's reqUirements and safeguardmg ofWSIB s public Image
12 Promote and model customer tocused relatIOnships throughout the orgalllzatlOn and with external customers
and stakeholders.
Ms Tkachenko described the work. Although some corporate confidentlahn pohcles have alread,
been developed, the Pnvac, Officers wIll contmue to develop and to reVIew pohcles m hght of new
CIrcumstances and on an ongomg basIs The, are to remam current wIth legIslatIOn and an, authontles m
order to assIst them m thIS ongomg reVIew and are to remam current wIth new technologIes that ma,
enhance pnvac, The Pnvac, Officers deal pnmanh WIth Issues surroundmg mamtammg the
confidentlahn of the mformatIOn collected b, or on behalf of the WSIB
B, contrast, and although the Issues are not exclusIve the FOI Coordmator tends to focus on Issues
of external access to that mformatIOn. She holds the delegated authont, from the Chair of the WSIB
under the FIPP A legIslatIOn to make deCISIOns regardmg access to mformatIOn. Regular requests for
mformatIOn have been IdentIfied and are dealt WIth b, bargammg umt employees However the FOI
Coordmator IS responsible for respondmg to unusual access requests ThIS work IS relatlveh reactIve
when compared to the more proactIve work of the Pnvac, Officer m seekmg to ensure that the
organIzatIOn works m a manner that IS pnvac, comphant. However the work IS complementan and the
members of the Pnvac, Office work as a team.
The Pnvac, Officers core work IS to perform pnvac, Impact assessments whIch reVIew
operatIOnal components of the WSIB and, workmg WIth staff, help to develop pnvac, solutIOns Ms
Tkachenko summanzes all pnvac, Impact assessments Followmg that, one or more assurance reports
Identlf\ whether the operatIOnal component of the busmess meets pnvac, needs and If not, the Pnvac,
Office makes recommendatIOns as to how systems or other operatIOnal tasks ma, be altered to meet the
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pnvac, concern. The, also reVIew contracts WIth external vendors or relatIOnshIps wIth other Mimstnes
regardmg, for example data shanng, m order to ensure that pnvac, Issues are appropnateh addressed.
The, provIde trammg to co-workers m the WSIB regardmg pnvac, Issues The goal of the Pnvac,
Officer s work IS to ensure on an ongomg basIs, that mformatIOn collected b, the WSIB whether It be
from mJured workers, employers, outsIde servIce provIders, or employees of the WSIB IS onh the
mformatIOn reqUIred and, that the mformatIOn collected remam confidentIal, even wlthm the WSIB
except as IS necessan to perform the busmess of the WSIB or as ma, otherwIse be appropnate Much of
thIS work mvolves detaIled analYSIS of mformatIOn flow through all areas of the WSIB and reqUIres a
thorough understandmg of the busmess, detailed knowledge of pnvac, Issues and legIslatIOn, and
substantIal expertIse m the use and functIOn of mformatIOn technology systems A common thread
underlymg the work mvolves changmg the workplace culture at all levels of the WSIB mcludmg semor
management, m order that ultlmateh all mstmctlveh respond to the pnvac, consIderatIOns at pia, m an,
operatIOnal task or strategIc declsIOn-makmg
A Pnvac, Officer IS responsible for Identlfymg an, data collectIOn Issues and bnngmg them
forward to the proJect team whIch mcludes operatIOns personnel for the area under reVIew The maJont,
of mformatIOn collected relates to mJured workers It mcludes, but IS not hmlted to personal mformatIOn,
claims hlston medIcal reports and payment records If the team mdlcates that the mformatIOn IS needed
for a partIcular purpose the Pnvac, Officer ma, adVIse on an, hmltatIOn on access that then ma, be
appropnate There was no suggestIOn that If there IS an, dIspute between an operatIOnal area and the
Pnvac, Officer as to whether certam mformatIOn IS reqUIred or how It IS to be mamtamed that the Pnvac,
Officer has the authont, to Impose an, deCISIOn on the operatIOnal area.
The Pnvac, Office IS currentl, workmg on Issues relatmg to Loss RetIrement Income electromc
bIll presentment and payment, and certam data shanng mltlatlves There was no suggestIOn that an, of
thIS mformatIOn related to collectIve bargammg and no other potentIal conflIct of mterest WIth bemg a
member of a bargammg unIt was IdentIfied regardmg the Pnvac, Officers mvolvement m thIS kmd of
work. The Pnvac, Officers are largeh although not excluslveh deahng WIth the mynad of pnvac, Issues
that the use of advanced technology raises For example one IS currentl, workmg on a process for
handhng a pnvac, breach. Once a set of gUIdehnes has been developed, Ms Tkachenko IS contemplatmg
a reVIew b, semor management and CUPE, and mput from the InformatIOn and Pnvac, CommIssIOner
(the "PC") the external arbIter of pnvac, Issues under FIPP A. An, deCISIOn would rest WIth semor
management.
It IS antICIpated that the Pnvac, Officers wIll mvestlgate complamts (referred to m pomt 11 of the
Job descnptIOn) Complamts that pnvac, has been mappropnateh breached are generalh complamts
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about mformatIOn relatmg to an mJured worker and typlcalh come from an mJured worker who asserts
that personal data has been mappropnateh collected, dIsclosed, or utlhzed. Ms Tkachenko testIfied that
wIth the number of claims that the WSIB handles, It IS expected that there wIll be a certam number of
mappropnate dIsclosures A complamt ma, go to the IPC under FIPP A. In that case a Pnvac, Officer
wIll mvestlgate and a report wIll be submItted to the IPC The Pnvac, Officer would typlcalh Identlf\
what steps management had taken m response to the complamt. If the complamt IS brought dlrecth to the
WSIB It IS mvestlgated and an mternal report would be prepared that would Identlf\ an, breach, the
reasons for the breach (for example whether It appears to have been caused b, an mdlvldual or IS
SystemIc to an operatIOnal component of the busmess) The report wIll analyze the SItuatIOn and make
recommendatIOns Although Ms Tkachenko testIfied that those reports could mclude recommendatIOns
regardmg dlsclplme to employees, to date no recommendatIOns regardmg an, consequences to an,
employee have been made Nor has Ms Tkachenko ever been adVIsed that she or the Pnvac, Officers
have an, authont, to make dlsclphnan recommendatIOns regardmg employees
Accordmg to Ms Tkachenko onh a ven ven small portIOn of the Pnvac, Officers tIme IS
actualh spent lookmg at pnvac, breaches At the moment one Officer receIves an, complamts That
person IS a member of the bargammg umt. Five dIsclosures have been logged smce the Office began.
None have led to an, dlsclplman actIOn agamst an employee There were two other examples of
mvestlgatIOns One related to a pnvac, reVIew of the operatIOn of an anonymous tIp hne used b, the
Regulaton ServIces DIVISIOn of the WSIB Its mandate IS to mvestlgate fraud actIVIt, Ms Tkachenko
assIgned that mvestlgatIOn to a Pnvac, Officer excluded from the bargammg umt. There was no
mdlcatIOn m the eVIdence that the actIVIt, or actIOns of an, employee of the WSIB were at Issue
SectIOn 181(1) of the Workplace S'afetv and Insurance Act SO 1997 c 16 as amended ('WSIA ')
provIdes that:
No member ofthe board of directors or employee ofthe Board and no person authonzed to make an 111qUln under
thiS Act shall disclose 111tormatlOn that has come to ll1S or her knowledge 111 the course of an exanl1natlOn,
mvestlgatlOn, mqUln or 111spectlOn under thiS Act. Nor shall he or she allow It to be disclosed. (emphasIs added)
WhIle there IS an exceptIOn for the authonzed release of mformatIOn, the WSIA makes It an offence
under sectIOn 150(2) for employees of the WSIB (among others) to contravene sectIOn 181(1) In the
second example one employee was mvestlgated under the WSIA for an alleged mappropnate dIsclosure
of mformatIOn. The FOI Coordmator conducted that mvestlgatIOn.
In describmg the first pomt under paragraph 7 of the Job descnptIOn (provldmg pnvac, adVIce to
management on labour relatIOns Issues) Ms Tkachenko IdentIfied that thIS has mcluded mappmg the
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collectIOn, usage and storage of employee personal mformatIOn. Accordmg to Ms Tkachenko It was
mtended as a proactIve report to hlghhght to semor management the areas needmg to be addressed m
order to be pnvac, comphant, that IS, to ensure that employee data was properl, kept confidentIal (also
noted m pomt 9 of the Job descnptIOn) The decIsIOn as to what mformatIOn IS collected and who and how
It ma, be accessed IS that of management although the Pnvac, Office eXIsts to provIde advIce m that
regard. The Pnvac, Office has also revIewed the e-Iearnmg system whIch allows for onlme tutonals Ms
Tkachenko antIcIpated reVIew of appropnate access to onhne employee performance reVIews She also
IdentIfied as a labour relatIOns Issue the trackmg of employees travels electromcalh Although It does
not appear that the Pnvac, Officers have performed thIS work yet, Ms Tkachenko antIcIpated that the
Pnvac, Office would have mput concernmg an appropnate balance between trackmg employee use of the
mternet (and presumabh e-maIl) and theIr pnvac, mterests
In Ms Tkachenko swords, advocatmg change whIch ma, Impact WSIB employees refers to the
notIOn of changmg the workplace culture to ask people whether bargammg umt or management, to do
thmgs dlfferenth WIth a focus on the collectIOn and use of mformatIOn on a need to know basIs That
mcludes mformatIOn m the human resources areas as well, such that employee data IS protected from
unnecessan dIsclosure
The Pnvac, Office has no mvolvement m collectIve bargammg. Ms Tkachenko IdentIfied that her
office dunng a pnvac, audIt, mIght Identlf\ staff who are accessmg mformatIOn not reqUIred for theIr Job
and that the, would report that. The Pnvac, Officers have not been mvolved m an, dlsclplman process,
collectIve bargammg, or an, mvestlgatIOn WIth the Regulaton ServIces DIVISIOn.
* * *
As noted at the outset the umon has bargammg nghts for all employees Unless speclficalh
excluded from the scope of that descnptIOn or otherwIse excluded b, operatIOn of law the Pnvac,
Officers properl, fall wlthm the bargammg umt. The onus IS on the employer to estabhsh such exclusIOn.
There IS no specIfic exclusIOn of Pnvac, Officer from the bargammg umt descnptIOn. That leaves
the Issue of whether or not the, are otherwIse excluded b, law The Crown Emplovees Collective
Bargaining Act ( 'CECBA ') IS the operatIve legIslatIOn and provIdes that persons ma, be excluded from
the bargammg umt where those persons have dutIes and responsiblhtles that constItute a conflIct of
mterest WIth theIr bemg members of a bargammg umt Histoncalh that proVIsIOn mIrrored what IS now
sectIOn 1(3) of the Labour Relations Act 1995 ( LRA ') whIch references conflIcts of mterest that are
described as ansmg from 1) the exerCIse of managenal functIOns or 2) bemg employed m a confidential
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capaclt, m matters relatmg to labour relatIOns The provIsIOn m CECBA now allows consIderatIOn of a
conflIct of mterest m a somewhat WIder context. However It IS not an, conflIct of mterest that wIll be
consIdered. It IS a conflIct of mterest relatmg to bemg a member of the bargammg umt.
Because hlstoncalh the Issues were the same under both pIeces of legIslatIOn, It IS useful to
reVIew some of the earher decIsIOns to understand the nature of the conflIct of mterest at Issue
The approach to determmmg whether someone exerCIses managenal functIOns has been described
m a number of decIsIOns but IS summanzed m The Corporation of the Citv of Thunder Bav a decIsIOn of
the Ontano Labour RelatIOns Board [1981] OLRB Rep Aug 1121 begmmng at paragraph 4
There IS no litmus test which IS umversally applicable and dictates the result m even situatIOn, and m assessmg each
case the Board must have regard to the nature of the mdustn the nature of the particular busmess, and [an]
mdlvldual employer s orgamzatlOnal scheme There must, of course be a ratIOnal relatlOnsll1p between the number of
supenors and subordmates, consultatIOn or 'mput" should not be confused with declslOn-makmg, and neither
techmcal expertise nor the Importance of an employee's functIOn can be automatically equated with managenal
status. On the other hand, there may be mdlvlduals whose nonl1nal authonty appears to be Iml1ted, and who have no
tormal managenal positIOn or title but who nevertheless make recommendatIOns atlectmg the economic destmy of
their tellow employees which are so trequenth torthcommg, and consistently toll owed by supenors, that It can be
Said that m fact the e1Iectlve decIsIOn IS made by the challenged mdlvldual. It IS this type of recommendatIOn which
the Board has charactenzed as an ettectl ve recommendatIOn and the mcluslOn of these persons m the bargammg
Ulllt would raise the ven kmd of conflict of mterest which sectIOn 1(3)(b) was designed to aVOid. Persons makmg
ettectlve recommendatIOns" of tll1S kmd are regarded as part of the 'management team and are excl uded trom the
bargalmng umt.
In each mstance the Board seeks to detenmne the nature and extent of the mdlvldual s authonty as well as the extent
to which that authonty IS actualh exercised. It IS not sut1iclent If an mdlvldual has only 'paper powers contamed m
a Job descnptlOn or a 'managenal Job title, If managenal functIOns are not actually exercised. Even the perlormance
of certam coordmatmg functIOns may not be determmatlve Where numbers of people work at a common enterpnse
(especlalh m the white collar service sector) many persons may be engaged m co-ordmatmg activities which are
largely routme carned out wlthm a pre-established tramework of rules and poliCies, and subject to real managenal
authonty which IS actualh exercised trom above In additIOn, persons who perlorm techlllcal functIOns or exercise
cratt skills which have been acqUired through years of trammg and expenence, will necessarily have a considerable
mfluence over unskilled employees or less expenenced 'IOUrneyman or techlllclans These expenenced personnel
will commonly supervise the work of those who are less expenenced, and It IS part of their normal Job functIOn to
tram and direct such persons and to mstill good work habits Otten, It IS only the most selllor or skilled employees
who will fully understand the techmcal reqUirements of the lob and the tools and matenal reqUired, and accordmgly,
It IS they who will allocate work between themselves and the other employees m order to accomplish the task m a
sate and et1iclent manner. In such circumstances, It IS mevltable that they will have a special place on the 'team and
will have a role to play m coordmatmg and dlrectmg the work of other employees: but this does not mean that the
exercise managenal functIOns m the sense contemplated by sectIOn 1(3)(b) and must there10re be excluded trom the
ambit of collective bargammg- espeCially when most of their tl1ne IS spent perlonmng functIOns sl1nilar to those of
other mdlvlduals and the bargammg Ulllt and there IS little or no eVidence ofthe kmd of conflict which sectIOn 1(3)(b)
IS designed to aVOid.
It should always be remembered that the Labour RelatIOns Act IS mtended to extend collective bargammg nghts to
employees, and It IS mcumbent upon any party seekmg to exclude employees trom the scheme of the Act, to come
torward With at1innatlve eVidence that they exercise managenal functIOns
'EffectIve recommendatIOns affectmg the economIC destm, of fellow employees mcorporates two
aspects It refers to the makmg of recommendatIOns, for example regardmg the nature of the dlsclplman
consequence whIch ought to flow for mappropnate workplace behavIOur or recommendatIOns as to who
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to hIre and secondh that those recommendatIOns are Implemented b, management wIthout further
scrutm,
In United Communitv Fund of Greater Toronto [1979] OLRB Rep Dec 1292 the second aspect of
the conflIct was described as follows
The purpose of sectIOn 1(3)(b) of the Act IS to ensure that persons who are wlthm a bargammg Ulllt do not lind
themselves faced with a conl11ct of mterest, as between their responsibilities and obligatIOns as persons who exercise
managenal functIOns or are employed m a conlidentlal capacity m matters relatmg to labour relatIOns and their
responsibilities and obligatIOns as members of the umt. Collective bargal111ng, by ItS ven nature reqUires an arm s
length relatIOnship between the 'two sides whose mterests, obJectives and pnontles are otten divergent. Persons
employed m a conlidentlal capacity relatmg to labour relatIOns are regularly mvolved with mlormatlOn m matters
which, If disclosed, would adversely alTect the collective bargal111ng mterests of the employer. SectIOn 1(3)(b)
ensures that the employer need not be concerned that such persons will have divided loyalties [SIC]
SectIOn 1(3)(b) mvolves three separate cntena. the disputed mdlvldual must be employed m a conlidentlal capacity,
the matenal with which that mdlvldual works must be conlidentlaL and the matenal must be related to labour
relatIOns.
The handlmg of collective bargammg mlormatlOn must be at the core of the disputed mdlvldual s Job functIOns
An occasIOnal or penpheralmvolvement IS msut1iclent to JustJ1\ hiS exclusIOn.
An employer cannot spnnkle dutIes or tasks that ma, mvolve the exerCIse of a managenal functIOn
or employment m a confidentIal capaclt, m matters relatmg to labour relatIOns or other conflIct of mterest
wIth bemg a member of a bargammg umt m order to JUStlf\ an exclusIOn from the bargammg umt. The
exclusIOn reqUIres
a regular and matenal mvolvement with sensItive labour relatIOns mlormatlOn which IS conlidentlal because ItS
disclosure would adversely alTect the collective bargammg mterests of the employer he will not be excluded under
sectIOn 1 (3 )(b ) One must remember that a demaioI' collective bargammg nghts IS somethmg the employer must
clearly sustam on the eVidence (Corporation of the Town ofDunnville unreported, deCISIOn ofthe OLRB dated May
27 1985)
The approach to these cntena was summanzed m a case under CECBA, York Universitv [1975]
OLRB Rep Dec 945 at page 951
The Board must be satlslied of a regular matenal mvolvement m matters relatmg to labour relatIOns to J ustJt\ a
lindmg excludmg a person lrom the operatIOn of the Act. .mere access to conlidentlalmlonnatlOn that may pertam
to labour relatIOns, standmg alone, IS no reason lor excludmg employees lrom the bargammg Ulllt.... nor IS mere
knowledge of matters that may be deemed conli dentlal m the sense that the employer would not approve of
disclosure of such mlormatlOn by hiS employees sut1iclent to JustJt\ a positive findmg under sectIOn 1(3)(b) the
Important test IS whether there IS a consistent exposure to conlidentlal mlonnatlOn on matters relatmg to labour
relatIOns so as to constitute such exposure an mtegral part ofthe employee s service to the employer's enterpnse
And m Fansha>te College of Applied Arts &Technology [1991] OLRB Rep Sept. 1044 another case
under CECBA, It was noted.
ThiS conlidentlal" exclUSIOn enables an employer to better ensure that knowledge of ItS conlidentlal mternal labour
relatIOns strategies or commumcatlOns IS restncted to persons whose loyalty IS more likeh to be undivided. A
person s mvolvement With such mlormatlOn must be more than an occasIOnal or a penpheral one to JustJt\ a lindmg
that s'he IS not an employee Sl1nilarly, access to mlormatlOn which may be sensitive or conlidentlal m some
busmess or general sense IS not by Itself sut1iclent to lustJt\ a lindmg that a person IS not an employee . In that
respect lor example, access to personnel mlonnatlOn IS to be dlstmgUlshed lrom access to conlidentlal labour
relatIOns mlormatlOn. It IS the labour relatIOns content or potential lor use rin 1 collective bargammg
See also Metropolitan Toronto Librarv Board [1991] OLRB Rep Mar 339 and To>tn of
10
Gananoque [1981] OLRB Rep Juh 1010 CollectIve bargammg or labour relatIOns mformatIOn
mcludes confidentIal budget matenal (for example how much mone, IS available for wage
mcreases and benefits) and mformatIOn concernmg what strategIes and pnontles the employer wIll
bnng to the bargammg table OpposIte the umon.
One example of the apphcatIOn of thIS test IS found m Frito-Lav Canada Ltd [1978] OLRB Rep
Sept. 831 whIch prompted the followmg conclusIOn.
While the eVidence mdlcates that the payroll clerks have regular access to a certam amount of conlidentwl
mlormatlOn, the Board IS not convmced that this type of mlormatlOn IS mtegral to the conduct of collective
bargalmng by the respondent. access to such mlormatlOn does not make them pnvy to the respondent s mdustnal
strategy, and the Board must conclude that these employees are not employed m a conlidentlal capacity m matters
relatmg to labour relatIOns
It IS also necessan that the mlormatlOn With which the disputed employee works IS conlidentlal so that ItS
disclosure would undenmne the employer's mdustnal relatIOns positIOn vis-a-vIs hiS employees. In Holophane Co.
Ltd. [1972] OLR B Rep Dec 999 the Board lound the sWitchboard operator who had access to the absenteeism and
dlsclplinan records of employees was not employed m a conlidentwl capacity because the employees knew or
should have known, the contents of those records. And m Daal Specialties Ltd. [1973] OLRB Rep Nov 592, the
Board concluded that a sWltchboard-receptlOmst who types replies to gnevances was not employed m a conlidentlal
capacity smce these replies were obvlOush known to trade Ulllon otIiclals to whom they were sent and were m no
sense conlidentwl
In Corporation of the To>tn ofInnisfil [1994] OLRB Rep Jan. 76 the OLRB concluded at paragraph
14
Slmilarh access to conlidentlalmlormatlOn relatmg to labour relatIOns must be dlstmgUlshed lrom access to other
mlonnatlOn that may well be conlidentwl to the employer but be Irrelevant lor collective bargammg purposes The
Board has also dlstmgUlshed between personnel mlormatlOn and mlormatlOn relatmg to labour relatIOns, particularly
where the personnelmlormatlOn IS known to the employee or IS mlormatlOn that would be reqUired to be disclosed m
bargammg. It seems necessan to say that bemg an employee wlthm the meamng of the Act does not dlmllllsh the
trust and loyalty of employees m the perlonnance ofthe work ofthe employer
That deCISIOn also described the nature of partIcIpatIOn m mvestlgatIOns or the makmg of
recommendatIOns and whether such constItuted the exerCIse of managenal functIOns and at paragraph 32
stated.
Sl1nilarly the lact that he raises mistakes m perlormance With the employees or With the Director m the absence of
eVidence of some greater mvolvement m a dlsclplman process,onh suggests that he IS conSCientIOus With respect to
the perlormance ofthe work m hiS department.
SImilarh m Bannerman Enterprises Inc O.L.R.D No 4056 deCISIOn dated November 8 1994
when Ms Rutetzk1made sure the last person out of the otIice balanced the cash when trvmg to track the cash t10at
of another employee, counsel argued these were mstructlOns which are the mark of a managenal employee We
consider It rather part of her cash trackmg duties which were essentially reportmg duties and not deCISIOn makmg or
e1Iectlve recommendatIOns As mdlcated above she had no discretIOn whether to report or not nor any control over
what happened as a result ofthe mlormatlOn she provided.
(emphasIs added throughout).
* * *
11
Thus, m approachmg the provIsIOn m CECBA one ma, ask, IS the person exerclsmg managenal
functIOns and/or IS the person employed m a confidentIal capaclt, m matters relatmg to labour relatIOns?
Both those matters have been found to constItute a conflIct of mterest wIth the person bemg a member of
a bargammg umt. An affirmatIve answer m eIther case wIll warrant the exclusIOn of that person from the
bargammg unIt. However If the answer to both IS m the negatIve one must further consIder whether there
IS some other conflIct of mterest that anses m the partIcular cIrcumstances that warrants a findmg that the
person IS properl, excluded from the bargammg umt.
The proVIsIOn m CECBA IS now as noted, somewhat broader It IS, however stIll modIfied. It IS
not an, conflIct of mterest that results m exclusIOn. It IS one that represents a conflIct of mterest WIth the
person bemg a member of the bargammg unIt. There must be clear eVIdence of a conflIct of mterest that
would JeopardIze the employee s ablht, to perform theIr dutIes for the employer because of confllctmg
lOyaltIes ansmg because of theIr membershIp m the bargammg umt. The reVIew of the case law mforms
the nature of that concern.
The employer rehed on thIS assertIOn that the persons m the pOSItIOn of Pnvac, Officer had dutIes
and responsiblhtles, the performance of whIch constItuted a conflIct of mterest WIth theIr bemg members
of the CUPE bargammg umt. It rehed on the eVIdence regardmg the Pnvac, Officers mvolvement m
those matters referred to m paragraph 7 of the Job descnptIOn and theIr mvolvement m mvestlgatIOns and
comphance
Certam of thIS eVIdence reflected an assertIOn of a conflIct of mterest that would be caught under
the narrower test, reflectmg on whether the Pnvac, Officers eIther exercIsed managenal functIOns or
were employed m a confidentIal capaclt, m matters relatmg to labour relatIOns For example Ms
Tkachenko suggested that mvestlgatIOn reports could mclude recommendatIOns as to dlsclphne However
there was no eVIdence that an, such recommendatIOns have been made nor had an, of the Pnvac,
Officers ever been told that the, had thIS kmd of authont, There was no eVIdence from whIch to properl,
conclude that the Pnvac, Officers are members of management, nor was that speclficalh asserted b, the
employer
SImIlarh It was not speclficalh asserted that the Pnvac, Officers were employed m a
confidentIal capaclt, m matters relatmg to labour relatIOns Notwlthstandmg that the Job descnptIOn
stIpulates that the Pnvac, Officers provIde pnvac, adVIce to management on labour relatIOns Issues, there
was no suggestIOn that the Pnvac, Officers had a regular and matenal mvolvement m matters affectmg
the employer s mdustnal strategy and collectIve bargammg efforts
12
Ms Tkachenko referred to a number of matters under the first bullet pomt under paragraph 7 of
the Job descnptIOn. Ms Tkachenko described that the Pnvac, Office has mapped the collectIOn, storage
and use of/access to employee personal data. The mappmg of that personnel mformatIOn does not gIve
nse to a conflIct of mterest wIth bemg a member of the bargammg umt. She antIcIpates reVIew of
appropnate access to onhne employee performance reVIews That too does not generate a conflIct. In both
cases the mformatIOn IS not confidentIal m the reqUIred labour relatIOns sense Ms Tkachenko also
antIcIpates that the Pnvac, Office wIll assess and make recommendatIOns regardmg momtonng of
employees through theIr technology use Trackmg or momtonng of employees through the use of the
employer s technology gIves nse to a potentlalh controversial Issue and one where the mterests of the
employer ma, dIverge from those of the umon and ItS members However there was no eVIdence that the
Pnvac, Officers have been mvolved m makmg an, recommendatIOns
In an, event, assessmg and makmg recommendatIOns does not equate to declsIOn-makmg In
each case Ms Tkachenko mdlcated that the role of the Pnvac, Office was to advIse management. There
was no eVIdence that the employer has adopted recommendatIOns of a Pnvac, Officer wIthout further
reVIew and conSIderatIOn b, management. There was no eVIdence to suggest that the Pnvac, Officers
would have an, role m formulatmg, or be aware of, the employer s collectIve bargammg strategy based
on an, assessment the, provIded. One must also dlstmgUIsh between what IS possible what ma, be
reqUIred b, law and what IS recommended The former IS a techmcal research functIOn. The second IS
an assessment and advIce based on speCIfic expertIse It IS the scope of the latter that ma, gIve nse to the
kmd of conflIct sought to be avoIded. Finalh m all these examples, an, report or recommendatIOns made
would be avaIlable to the umon m the event of a dIspute eIther m collectIve bargammg or m the course of
gnevance proceedmgs
Ms Tkachenko described advocatmg change whIch ma, Impact employees as reflectmg
potential changes to processes and, more broadh changes to the workplace culture to gIve more pnont,
to pnvac, Issues She sees the Pnvac, Office as a change agent havmg the potentIal to affect
employees and management alike Defendmg employees before the IPC creates no conflIct of mterest
wIth bemg a member of the bargammg umt. TheIr mterests are the same NeIther of these functIOns gIves
nse to an, conflIct of mterest WIth a Pnvac, Officer bemg a member of the bargammg umt.
All of thIS work relates to an assertIOn of a conflIct of mterest ansmg out of mvolvement m labour
relatIOns Issues An, asserted conflIct of mterest IS however eIther speculatIve does not mvolve
confidentIal labour relatIOns mformatIOn, does not relate to the employer s collectIve bargammg or labour
relatIOns mterests, or IS at best, onh penpheral to those mterests It does not represent eVIdence of dutIes
and responsibihtles that would warrant exclUSIOn under eIther a managenal exclUSIOn or bemg employed
13
m a confidentIal capacln m matters relatmg to labour relatIOns No other conflIct of mterest wIth bemg a
member of a bargammg umt was asserted. Such work cannot therefore found the basIs for concludmg that
It constItutes a conflIct of mterest for the Pnvac, Officer to be a member of the bargammg umt.
Ms Tkachenko s assertIOn that comphance plays a sIgmficant role m the work of the Pnvac,
Officer falls wlthm sImIlar consIderatIOns The eVIdence mdlcates that the Pnvac, Officers are not
responsible for ensunng comphance WhIle the, ma, provIde dIrectIOn and advIce the resolutIOn of an,
dIspute between an operatIOnal area and the Pnvac, Office regardmg the scope or ImplementatIOn of the
pnvac, concern remams the role of management.
The employer also focused attentIOn on the fact that the Pnvac, Officers wIll be reqUIred to
mvestlgate complamts of a pnvac, breach and m the course of those mvestlgatIOns ma, have to
mvestlgate members of the bargammg umt and report on theIr findmgs In fact the Pnvac, Officers ma,
be m the posItIOn of mvestlgatmg members of management as well
The first CIrcumstance that must be noted regardmg thIS Issue and thIS partIcular workplace IS the
eXIstence of sectIOn 181 (1) of the WSIA quoted earher The effect of that sectIOn IS to charge even
member ofthe bargammg umt and even member of management wIth the same obligation and interest as
the Pnvac, Officers the protectIOn of pnvac, mterests If an employee IS aware of a potentIal breach or
mappropnate dIsclosure s/he has a statuton obhgatIOn not to allow the dIsclosure Employees are
reqUIred to report breaches of confidentlaht, ThIS dut, extends to mformatIOn collected m the course of
the work of the WSIB In terms of complamts and resultmg mvestlgatIOns, most, If not all, relate to the
asserted mappropnate dIsclosure of that class ofmformatIOn.
The dIfference between the obhgatIOns IS that a Pnvac, Officer ma, have more mvolvement m
the mvestlgatIOn of a pnvac, breach. However as noted earher the, have no role m determmmg an,
consequence to an, employee and an, report of an, mvestlgatIOn would be avaIlable to and subJect to
scrutm, b, both the employer and the umon as part of an, gnevance proceedmg Conductmg an
mvestlgatIOn and/or reportmg as reqUIred reflect the conSCIentIOUS performance of one s responsiblhtles
It ma, become a matter of Issue as between the employer and the umon as to what to do wIth the
mformatIOn obtamed through the mvestlgatIOn but m the absence of further mvolvement It does not pose
a conflIct of mterest for the Pnvac, Officer to bemg a member of the bargammg umt. Man, classes of
employees (for example health care workers) have professIOnal responsiblhtles that ma, reqUIre them to
report mappropnate conduct on the part of a co-worker That reportmg functIOn has not precluded them
from bemg a member of a bargammg umt. The mterests of the bargammg umt are not m conflIct WIth the
mamtenance of professIOnal conduct.
14
Further the eVIdence dIscloses that of the mvestlgatIOns handled smce the Office began, five
dIsclosures were logged and none has led to dlsclplme The, were all dealt WIth b, one Pnvac, Officer
That Pnvac, Officer was a member of the bargammg umt and no dIfficultIes were IdentIfied from thIS
fact. One matter mvolvmg an employee charged under sectIOn 150(2) of the WSIA for breachmg sectIOn
181(1) of that Act was handled b, the FOI Coordmator Finalh thIS mvestlgatlve functIOn (m response to
complamts) does not represent a sIgmficant portIOn of the Pnvac, Officers tIme
Ms Tkachenko spoke of the need to be perceIved as unbiased. I understood thIS to refer both
mternalh and externalh Internalh havmg the Pnvac, Office report through Legal ServIces ma, reduce
a perceIved conflIct m an operatIOnal area bemg seen to mvestlgate ItSelf. From an organIzatIOnal pomt of
VIew the Pnvac, Office IS not responsible for an, partIcular operatIOnal area. It IS responsible for all
areas and has therefore been made responsible to the organIzatIOn as a whole The comphance component
of the Pnvac, Officers work IS dIrected at ensunng that the facets wlthm the WSIB are pnvac,
comphant. Those efforts are not dIrected at employee dlsclphne although that Issue ma, anse as a result
of the Pnvac, Officer s work. The comphance component of the Pnvac, Officer s work however does
not create a conflIct of mterest WIth theIr bemg a member of the bargammg umt absent theIr ablht, to
make those deCISIOns whIch have an economIC Impact on employees
Ms Tkachenko was also concerned that the Pnvac, Office be perceIved as unbIased to those
external to the WSIB m ItS handhng of complamts Imphclt m her concern IS agam the notIOn that one
ought not to be charged WIth mvestlgatmg ItSelf. But an, danger of such a perceptIOn anses not because a
Pnvac, Officer ma, be a member of a bargammg unIt but because the, are a member of that Office and,
more speclficalh because the, are employed b, the mstltutIOn under mvestlgatIOn. An, such potentIal
for perceIved bIas anses because the Pnvac, Office IS mternal to the WSIB
ThIS mqUIn reflects the work performed b, the persons employed m the pOSItIOn of Pnvac,
Officer Rehance on the pOSItIOn descnptIOn reflects an agreement that each of the Pnvac, Officers
performs essentIalh the same work. One does not consIder the Pnvac, Office m ItS entlret, There are
currentl, two persons employed m that office who are excluded from the bargammg umt. There must be
some ratIOnal relatIOnshIp between supenors and subordmates m a workmg group such as the Pnvac,
Office Workmg as a team and flat-Ime reportmg structures do not equate to managenal status, or b,
themselves, a conflIct of mterest WIth bemg a member of a bargammg umt. Access to mformatIOn whIch
ma, be partlcularh senSItIve from the employer s perspectIve and IS to remam confidentIal, but whIch IS
not mformatIOn whIch generates a conflIct for that person between hls/her obhgatIOns to the employer and
theIr lOyaltIes to the umon, does not warrant theIr exclusIOn. As noted m To>t n of Innisfil, supra, bemg a
15
member of a bargammg umt does not dlmmlsh the trust and loyalt, of employees m theIr performance of
the work of the employer The matters rehed on b, the employer do not gIve nse to the kmd of conflIct of
mterest that the legIslatIOn contemplates
There IS no doubt that the persons workmg m the posItIOn of Pnvac, Officer are hlghh skIlled
and have a vaned and substantIal expertIse The, are also able to work wIth httle dIrect supervIsIOn and
functIOn well as a team. The, provIde a valuable servIce to the organIzatIOn m an area of relatlveh new
concern. Bemg hlghh skilled, motIvated, and an mdependent worker however IS not mconslstent WIth
bemg a member of a bargammg umt.
Havmg regard to the eVIdence and submIssIOns of the partIes, It was m, findmg that the dutIes
and responsiblhtles of the persons workmg m the pOSItIOn of Pnvac, Officer do not constItute a conflIct
of mterest WIth theIr bemg members of a bargammg umt. I found therefore that the, are properl, mcluded
m the bargammg umt represented b, CUPE Local 1750
Dated at Toronto thIS 2nd da, of September 2003