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Home My WebLink About2002-1928.Policy Grievance.07-01-16 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# 2002-1928 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 (Policy Grievance) Association - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors FOR THE EMPLOYER David Strang Senior Counsel Ministry of Government Services HEARING December 4, 2006. 2 Decision This order is made in the context of a series of decisions and orders respecting the process for the determination of this grievance wherein the Association contends that bargaining unit work is being done by persons who should be properly characterized as employees of the Provincial Government, but are being treated as if they are not employees. The Association has asked for the hearing process to be reinstituted because the lengthy disclosure and meeting process previously determined have not led to the resolution of issues between the parties to date. Having heard the representations of the parties with respect to this request, I order as follows: 1. Dates have been set aside by the Grievance Settlement Board for mediation/arbitration of specific BUI issues as outlined in Appendix A. Further dates will be scheduled as necessary, with three mediation/arbitration dates per month whenever possible. 2. AMAPCEO shall notify the Employer of the Division or Branch within a Ministry to be considered on each mediation/arbitration date. Such notice shall be served in accordance with the schedule set out in Appendix B. 3. Updated disclosure shall be provided by the Employer to AMAPCEO in electronic format where practicable. The schedule for disclosure is contained in Appendix B. The information to be disclosed is described in Appendix C. Such information shall be provided for persons identified in the previous disclosure who remain in dispute and any other person not formally designated as an employee, who have been engaged for a period of more than 90 days as of the date of AMAPCEO’s notice under paragraph 2, to perform work requiring regular attendance at one or more sites controlled by the Employer. The Employer is directed to provide the Grievance Settlement Board with a summary spreadsheet of the information disclosed to AMAPCEO. 4. At the time of disclosure, the Employer shall state its position as to whether the engagement of each a person named in the disclosure is a violation of the collective agreement and, if not, why not, including the facts upon which it relies. In particular, the Employer shall state its position as to whether the person: • is an employee of the Ministry 3 • is performing “AMAPCEO-type” work • is performing “excluded-type” work 5. For each person with respect to whom a violation of the collective agreement is denied by the Employer, AMAPCEO shall state it’s position as to whether the engagement of that person constitutes a violation. Such notice shall be given in accordance with the schedule in Appendix B. 6. In order to ensure that the mediation/arbitration process is as efficient as possible, the parties are directed to meet, either in person or by conference call, in accordance with the schedule in Appendix B, to attempt to resolve or narrow the issues in dispute and to prepare for mediation/arbitration. 7. If any procedural differences arise between the parties (including disputes about the branches or divisions to be reviewed, the adequacy of disclosure, or whether time limits have been met) they should discuss and attempt to resolve such issues, failing which the matter may be referred by either party to the Grievance Settlement Board to be dealt with in such expeditious manner as it may determine necessary, including conference calls or submissions in writing. 8. This order may be amended by agreement of the parties or, if necessary, by the Grievance Settlement Board after hearing submissions from them. Issued at Toronto this 16th day of January 2007 Richard Brown Vice-Chair 4 APPENDIX A MED/ARB DATES January 11, 23, 2007 – Ministry of Education – Education Officers February 19, 23, 2007 – Ministry of Health – Acute Services Division and Community Health Division March 1, 2007 – Ministry of Health – Health Systems Accountability and Performance Division March 26, 2007 – To be determined pursuant to paragraph 2 of the decision. April 5, 17, 27, 2007 – To be determined pursuant to paragraph 2 of the decision. May 7, 17, 28, 2007 – To be determined pursuant to paragraph 2 of the decision. 5 APPENDIX B NUMBER OF DAYS BEFORE MED/ARB WHEN STEPS TO BE TAKEN AMAPCEO to identify Division or Branch Employer to provide disclosure AMAPCEO to identify positions claimed Meeting or Teleconf. Feb. 19 n.a. 30 15 10 Feb. 23 n.a. 30 15 10 Mar. 1 n.a. 30 15 10 Mar. 26 & Apr. 5 All other dates 90* 45 15 10 For March 26 and April 5 med/arb dates, notice shall be given by January 18 6 APPENDIX C DISCLOSURE 1. The Employer shall provide to AMAPCEO an updated list of all persons not formally designated as employees, who have been engaged for a period of more than ninety days, as of the date of AMAPCEO’s notice under paragraph 2 of the decision, to perform work requiring regular attendance at one or more sites controlled by the Employer. 2. The updated list shall be accompanied by updated information about each person, 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 is set out below: a. Name of the individual and their contact information; b. Name, if one exists, of current position; c. Information as to the nature of the work performed (for example the job description if one exists, or if one does not exist, a task description or list); d. The contract or the agreement, if one exists; e. The name of the work unit and the project if applicable; f. The first date on which this individual commenced work on the task or tasks in question, and the length or expected length of the engagement; g. If the task or tasks have been performed by more than one individual in succession, the first date on which the task or tasks were performed, and the name of the individual or individuals who performed the work, and the date(s) on which he or she commenced performance of the work in question; h. Method of payment—hourly, daily, weekly, on a project basis, or any other compensation arrangement; i. The rate of pay per unit identified in subparagraph (h); j. The number of hours, days, weeks or other basis billed to the crown by or in relation to the individual in question; k. Work location. (Unless the Employer specifies, it is assumed that the individual works on the Employer’s premises); l. Name of ministry contact person or supervisor, where applicable; m. Equipment and tools used and whether these are supplied by the Employer; 7 n. The name of the agency, transfer payment agency, or firm through which the individual or the work is supplied, where applicable. 3. The employer must make all the disclosures set out above despite the fact that its position may be that the work in question involves work done by another bargaining unit (e.g. OPSEU). 4. The employer must make all the disclosure set out above despite the fact its position may be that the work in question ceased to be performed after AMAPCEO’s notice under paragraph 2 of the decision. 5. Where the person’s contract is for a definite term that has expired or is about to expire, the Employer shall indicate what the status of the person is and whether the work performed by that person is being performed or will be performed by someone who is not a public servant and if by a public servant which one(s). 6. Before excluding anyone on the ground he or she does not “perform work requiring regular attendance at one or more sites controlled by the employer,” the employer shall notify AMAPCEO of the proposed exclusion. Either party may refer any dispute about such an exclusion to the board for resolution.