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HomeMy WebLinkAbout2010-2045.Union.12-07-10 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2045 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 Ontario - and - Ontario Public Service Employees Union (Union) Association Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Susan L. Stewart Chair FOR THE UNION Kate Hughes Counsel for OPSEU Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Barristers and Solicitors Lorne Richmond Counsel for AMAPCEO Sack Goldblatt Mitchell LLP Barristers and Solicitors FOR THE EMPLOYER Benjamin Parry Ministry of Government Services Labour Practice Group Counsel HEARING June 28, 2012. - 2 - Decision [1] This decision follows upon a decision dated June 30, 2011, relating to the Phase 3 implementation of the Ontario Public Service Personnel Screening Checks Policy (“the Policy”). Phase 3, as set out in Appendix B of the Policy, provides for “Harmonization of screening check processes in areas of the OPS that currently conduct screening checks” and, in relation to the date of implementation, provides: “Following Cabinet Approval (To be phased-in by ministry after January 2006)”. [2] The position of AMAPCEO and OPSEU as described in the June 30, 2011 decision was that: “although a date for Phase 3 is not specifically prescribed, the fact that in late 2010 the harmonization of pre-existing security check processes has not commenced could not have been in the reasonable contemplation of the parties”. [3] I accepted the position of the bargaining agents with respect to the obligation of the Employer to commence harmonization, but concluded that it would be inappropriate for me to order further relief at that time, noting that the Employer had provided a plan to begin the harmonization process. At the commencement of the hearing on May 31, 2011, the Employer had presented the bargaining agents with a written plan for the commencement of harmonization. I rejected the request of the bargaining agents to establish an end date for harmonization and further rejected their position that I order that - 3 - any re-checks in areas of pre-existing security checks be conducted in accordance with the Policy, indicating in paragraph 6 that: “… the process that the Employer has commenced should be allowed to unfold”. I remained seized. At that time the process contemplated commencing the harmonization process with Enforcement/Investigation/Compliance positions. [4] The Board was subsequently asked to re-convene the hearing and a hearing date of March 26, 2012 was established. The Employer had undertaken an extensive review of its approach to security checks and shortly prior to the hearing date, it provided the bargaining agents with disclosure, including an audit relating to the Policy which was completed in March, 2012. In a decision dated March 26, 2012, I directed the Employer to provide full particulars in writing of the proposed harmonization plan to the bargaining agents by June 1, 2012. The Board set a further hearing date of June 28, 2012. [5] Particulars were provided on June 1, 2012, in accordance with my order. The particulars included a new draft Employment Screening Checks Policy, accompanied by new Operational Guidelines and a new Risk Assessment Tool. The implementation process contemplates that all legacy checks would stop no later than two years from September 1, 2012 and that the central focus of the plan would be on personnel screening checks at the recruitment stage. I was advised that the parties have had discussions regarding the new policy, however, no agreement has been reached. While its components were not - 4 - addressed in detail, the bargaining agents identified certain aspects of the new policy as fundamentally problematic. The bargaining agents indicated that they would challenge the policy if it were implemented in its current form. Mr. Richmond characterized the prospect of its implementation in relation to the legacy ministries as “disharmonization”, rather than harmonization. Although the Employer advised that the four tenets that the bargaining agents view as critical have been incorporated into the current draft of the new policy, the bargaining agents indicated that from their perspectives, these tenets have not been incorporated effectively. It was the Employer’s further position that while the Employer would like to have the agreement of the bargaining agents, its intention is to proceed with a new policy, which, in its view, accomplishes harmonization. [6] At the hearing on June 28, 2012, the bargaining agents sought specific orders prescribing the immediate commencement of harmonization in accordance with the March 2005 Policy and Guidelines in prescribed Ministries or by occupation, and that harmonization be completed in 18 months. As well, the bargaining agents sought orders requiring that any new legacy security checks be conducted in accordance with that Policy and that the bargaining agents be advised in writing every four months of the progress of harmonization. Counsel for AMAPCEO and OPSEU reviewed the history of this matter, noting in particular that it has now been over a year since the declaration and submitted that harmonization needed to be addressed by specific orders without further delay. Reference was made to the comments in - 5 - the audit report regarding the desirability of alignment of checks in legacy ministries with the Policy and it was submitted that the orders sought are consistent with the views of the auditors. On behalf of the Employer, Mr. Parry referred me back to the jurisdictional argument previously raised and further argued that it would be premature to make the orders requested, given the developments that have taken place and the current status of the matter. It was further argued that any such order could conflict with Cabinet’s statutory discretion to rescind the existing Policy and implement another. It was the Employer’s position that the Policy does not reflect a binding settlement on the part of the Employer and that even if it did, by its terms, the reference at p. 13 to the responsibility for policy development on the part of Cabinet Office contemplates the authority to develop a new policy. The Employer asked me to so conclude and to dismiss the requests for orders. If an order were to issue, it was suggested that I direct that the current Employer proposal proceed. It was the position of OPSEU and AMAPCEO that the Employer had committed to and was bound by the existing policy. Given that at this point there is in fact no policy in place that replaces the existing policy, it was submitted that it would be appropriate for me to issue the orders requested pursuant to the existing policy to ensure that the longstanding issue of harmonization is brought to a timely conclusion. [7] After considering the submissions of counsel, it is my view that the Board best serves the parties at this point by neither granting the orders requested by AMAPCEO and OPSEU, nor granting the Employer’s request for - 6 - what is essentially an advisory opinion in connection with its proposed course of action. The current circumstances are in a transitory state, with the Employer’s proposed approach in a draft form upon which further input from the bargaining agents is welcomed. The draft is recent, the documents are lengthy and complex, and they were provided in their current version only a few weeks before the hearing. While there have been some discussions in connection with the Employer’s draft policy, it is readily apparent that all of the concepts in the draft have not been fully explored. The draft presented is the 16th version of the new policy, which is perhaps indicative of the detail and complexity of the matter. It involves issues of considerable significance and sensitivity for the Employer and the bargaining agents. Aside from any issue as to my jurisdiction, it seems to me that the parties are best served by my deferring any consideration of orders pending an opportunity for the parties to thoroughly discuss and understand the respective interests and concerns and attempt to resolve them. I appreciate the legitimate concerns raised by the bargaining agents in connection with harmonization proceeding with some dispatch, however movement on the overall issue of security checks seems to have considerable current momentum. The Employer’s materials indicate a target date of September 21, 2012 for the approval of the new policy. Of course, the dispatch that AMAPCEO and OPSEU are seeking is in relation to harmonization with the existing policy, in relation to which I have made a declaration. However, the Employer has put forward a position on harmonization, albeit in a broader context and involving a departure from the - 7 - current policy, but with a view to bringing the issue of harmonization within legacy ministries to a conclusion. [8] The parties will or will not come to a mutually satisfactory resolution in relation to this entire matter, including in relation to harmonization of security checks in legacy ministries. I continue to remain seized with this matter and available to deal with it on an expedited basis if a resolution is not achieved. I refer all issues back to the parties for their review and their best efforts at resolution. Dated at Toronto this 10th day of July 2012. Susan L. Stewart, Chair