GSB #0105/99
OPSEU #99U019
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(OPSEU Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Management Board Secretariat)
Employer
BEFORE Loretta Mikus Vice Chair
FOR THE David Wright GRIEVOR Ryder Wright Blair & Doyle Barristers & Solicitors
FOR THE Len Marvy, Counsel EMPLOYER Legal Services Branch Management Board Secretariat
HEARING June 22, 2000. There are two policy grievances before me involving a new initiative of the government to set up informational kiosks in government buildings that would allow the public to ask general questions about government or ministry services without having to go to that ministry office personally. The position specification described its major duty as follows:
Providing access to government information, services and programs from one of several information counters offering integrated multi-ministry counter services to the general public and government clients by responding to a full range of inquires and/or information requests regarding government services, programs and resource materials (e.g. forms, brochures) through various sources (e.g. in person, phone, email, fax, mail).
These Government Information Centres (GICs) or Common Counters as they are referred to by the parties, are comprised of employees from various ministries who, at the time of the grievance, continued, for employment purposes, to be attached the their home ministry. The Union takes the position that the collective agreement, the Public Service Act and it regulations are structured to provide for an attachment to a specific ministry for all employment purposes, including promotions, discipline and lay-off and recall. The employees in these information kiosks do not fit within that structure. The other grievance deals with the allegation that some of these common counters are being operated in partnership with private industry or other public service entities such as municipalities.
The first day of hearing was devoted to the exchange of documents and information in the hopes that a clarification of the issues might facilitate settlement talks. Although this is an interim award dealing with a specific issue, it is necessary to set out background to the dispute in order to understand the nature of this preliminary issue and which will be helpful in the event that additional hearing days are required on the merits.
BACKGROUND
In November of 1998, Celia Fairclough, the Regional Director of the Regional Delivery Restructuring (RDR) team circulated a memo containing a guide to selecting and recruiting staff for these new positions. This guide set out the expectations of the positions, which had been developed with the assistance of the Common Counter Leads, the Management Board Human Resources Plan Group and an external consultant, and consisted of seven competencies, such as knowledge, skill and behaviour, that would contribute to the job. As well there was a list of sample questions for the interview to ascertain whether the applicant possessed those competencies.
In April of 1999, a memo was circulated by Ms. Fairclough to the GIC Community Leads suggesting that, since most of the GIC staff were on board, performance contracts should be developed for each employee, initiated by the home ministry but with input from the counter supervisor. She stated, in part:
In this fiscal year, the 4 Regional Leads Ministries continue to provide leadership and maintain governance of the counters for one more year. Staff continue to report to their home ministry for personnel/human resource matters. Hence, the performance contract and performance review process adhered to by the staffs home ministry should be followed. Input into the process from the Site Lead concerning responsibility and performance at the counter should be ensured.
A follow-up memo in June from Gabija Petrauskas, the Change Management Lead for the RDR Corporate Project Team to Ms. Fairclough and others confirmed a need to provide standardization of GIC job descriptions and classification levels and contained the results of a survey of current job functions of the GIC staff that had been prepared with that goal in mind. The survey concluded the following:
- POSITIONS
In total, there are 84 customer service representatives’ positions at the GICs across the province. 105 of the 184 GIC customer rep. positions are in the north. The home base ministries for these positions are MNDM and MNR. This accounts for 57% of the GIC front-line positions across the province.
- CLASSIFICATION LEVELS
Of these 184 positions,
132 are OAG8 (over 72%)
30 are OAG 9 (16%)
7 are OAG6 (5%)
2 are OAG 10
1 is an FO1
The north has the greatest incidence of classification variances. With the odd exception, the other three Regions have classified their customer service representative positions as the OAG 8 level.
- CLASSIFIED V.S. UNCLASSIFIED POSITIONS:
65% or 120 positions are classified
30% or 55 positions are unclassified
There is a mix of classified and unclassified positions within all four regions. The North has the greatest number of unclassified positions.
- POSITION TITLE
The most frequently used position title is Customer Service Representative. Client Services Advisor is also used, most often for positions contributed by MNDM and MNR, closely followed by Information Access Officer used in Ottawa and Peterborough.
- FILLED V.S. VACANT POSITIONS
A comparison of filled versus unfilled positions indicates that most Regions have filled their customer service representative positions. Only a few (5) positions are still vacant.
- CONTRACT TERMINATION DATES
A survey of contract end or termination dates for the filled positions shows that
53.55 % of the contracts end in March, 2000
12.8% end in July, 1999
9.3% end in September, 1999
Most of the contracts ending in March, 2000 are in the North and in the Southwest regions.
Most of the contracts ending in July 1999 are in the GTA, Southeast and a few in the Southwest regions.
Most of the contracts ending in September, 1999 are in the Southwest and the Southeast regions.
- MINISTRIES CONTRIBUTING STAFF
In terms of contributions of staff to the GICs by ministries: the highest numbers of staff are contributed by MNDM, closely followed by MNR. Most of the staff contributed by MNDM are in the North. Staff contributed by MNR are also mostly in the North, but with a substantial number in the Southeast Region.
The next highest contributors of staff to the GICs are OMAFRA, MOL, MBS, MCSS and MTO.
The report concluded that there was little variation in the job classifications, a high conformity of
job titles and approximately of the contracts for GIC staff would be ending in March of 2000.
A subsequent staff analysis for the GICs for 1999/2000, based on estimates provided by the regions about the minimum FTEs that would be required, suggested that the total number of FTEs required by all regions was 134, or an average of 2.31 FTEs per site, based on a total number of 58 sites. On a regional basis it was estimated as follows:
GTA - 2.25 staff for each site or 11.25 FTEs.
North- 62.58 for all sites or an average of 2.25 over 28 northern sites.
SE - 27.5 in total or an average of 2.29 FTEs over the 12 southeastern sites.
SW- a total of 32.7 or an average of 2.52 over the 13 sites
As well, it was noted that 74.78 of the total FTEs being provided were deployments and 59.25 were new positions.
In September of 1999 the Regional Delivery Restructuring Project team prepared a project status on the implementation of the GICs. It noted that the project continued to be on track and that 12 pilot sites, with the cooperation of significant inter-ministry planning, had developed 58 counters by March 31, 1999 and that three more were being reviewed based on delivery partnerships with the local communities. Final agreements had been executed with Windsor, Simcoe, Chatham and Sarnia. It was expected that agreements would be finalized with Kitchener and Hamilton in the near future. At the time no decision had been made about the permanent governance of these counters and MBS continued to provide direction on broad human resource issues.
As part of the cooperative exchange of documents, the Union was provided with several memos that gave rise to the issue before me. In particular, a memo from Ms. Fairclough dated January 28, 2000, to Mr. Len Marvy, counsel for MBS, contained the results of a recent survey showing that the front line positions were operational in all 57 sites. As of January of 2000 there were 181 CSR positions, 123 full-time positions and 50 back-up or part-time positions of which 123 were occupied, and 8 were vacant. Forty-two percent of those assignments were to end in March 2000. Over 80 % of the positions were classified as OAG 8 (64%) and OAG 6 (22%). Forty percent of the staff were attached to MNDM and 18% to MNR, MCSS and OMAFRA and other ministries were paying for 8%. More significantly, 34% of the positions were filled by competition, 38% by direct assignment and 21 % on a contractual basis. Positions were advertised in 48% of the cases, 23% advertised internally within the OPS.
The next memo relating to these matters was dated March 29, 2000 and was addressed to all new MCCR staff from Sandra D. Land, the Deputy Minister of the Ministry of Consumer and Corporate Relations. She advised them that, effective April 3, 2000, overall responsibility for the GICs across the province was being transferred to MCCR but that the Ministry of Northern Development and Mines would be responsible for the administration and operation of the GICs located in the north. On a practical level, that meant that the RDR Corporate Project Team was transferred immediately to MCCR, but the actual operation and supervision of the GICs and their staff would remain the responsibility of the local program managers and leads until the transitional planning was completed. The GIC positions were to be filled as they expired and contracts were to be renewed on a case by case basis. The question of a permanent management structure and funding arrangement had not been finalised at that stage.
It was this change in status from a temporary pilot program to a permanent program that raised the Unions concerns. Mr. Wright, counsel for the Union, argued that these GIC positions are now permanent bargaining unit positions that must be posted and filled in accordance with the collective agreement. Even more significantly, it contended, the Employers failure to classify these positions as permanent bargaining unit positions means that they are not available to employees who are being surplussed and can be offered to unclassified people over classified employees with lay-off and recall rights under the collective agreement. It asked for an ruling that these positions are permanent bargaining unit positions and a direction to the parties to deal with the posting requirements and the surplussing issue if necessary.
Mr. Marvy, counsel for MBS, advised the Board that the parties had made efforts to finalize the issues concerning the GICs with government but that, because there were so many items on the agenda, they were asked to return on August 8, 2000 to finalize the funding and permanency of the GICs.
It was submitted by the Union that the issue before this Board is whether it is permissible under the collective agreement for the Employer to create and operate temporary positions over a prolonged period of time thereby avoiding the posting requirements of the collective agreement. It takes the positions that article 6 of the collective agreement requires the Employer to post all vacancies and new positions in the classified service so that all OPSEU bargaining unit members can apply for them and be considered. Article 8 is entitled TEMPORARY ASSIGNMENTS but actually deals with how a bargaining unit employee is to be paid in the event he/she is transferred to a temporary position. It does state, however, that where an employee is assigned to a temporary position, article 6 only applies if the term of the temporary assignment is more than 6 months. It is clear that the parties considered temporary positions when they negotiated the collective agreement and agreed that the Employer could have 6 months before it had to make up its mind about the permanency of the position. Article 20, EMPLOYMENT STABILITY sets out the bargaining unit members lay-off and recall rights and, subsection 20.4 in particular, sets out their right to bump another bargaining unit employee if they are surplussed. All of these rights have been denied to the Union members because of the Employers refusal to designate these GIC positions as permanent.
Article 31 is further proof that the parties understood the difference in nature between a temporary and permanent position. They recognised that temporary unclassified positions existed but agreed that, if an unclassified position continued in excess of two years, that position was to be converted to a permanent position so long as the need for the work continued. That article does not require the Employer to wait the two years before converting a position. If it is clear, as in the instant case, that the duties of a position are going to be required for a considerable time in the future, the Employer is obliged to make the position available to bargaining unit members. The loss to these members is real and tangible. Employees who are being surplussed are denied a bump into a position that could save their employment. The Employers refusal to offer these jobs to bargaining unit members means that the pool of available positions to bump into is smaller. People have lost their jobs who might otherwise have been able to bump into a GIC position. Employees are also being denied the right to apply for these positions under the posting provision of the collective agreement, making their seniority meaningless.
The Union relied on several cases in support of its position. In the Re OPSEU and Ministry of Transportation (October 16, 1998), GSB # 3094/91 dealt with postings for two positions in Thunder Bay that were subsequently cancelled because of a lack of funding. The positions continued on the organisational chart but remained unfilled. The Board did not have enough facts before it to determine whether the work continued to be required on a regular and ongoing basis but commented, on page 3, as follows:
The test for determining whether or not Article 4 of the collective agreement has been violated is whether or not the Employer believes it is necessary to fill the position, and the linchpin in determining this issue is whether the work continued to be done on a permanent and on-going basis. The Union does not seriously dispute that the Employer has a right to determine complement and to assign and distribute workload.
In Re OPSEU and Ministry of Correctional Services (January 16, 1991) GSB# 582/90 (Kennedy), the union had grieved that the employer was in breach of the collective agreement because of its failure to fill the vacancies at the correctional facility to bring the staff complement in line with an employer document which set the approved complement at 52. The employer took the position that the document the union was relying on was outdated and incorrect. In dismissing the grievance the board stated, at page 10:
There is an additional flaw in the argument asserted by the union. The existence of an approved complement does not of itself establish the existence of a vacancy. The vacancy exists only if in the reasonable opinion of the Employer the work is required, and notional staffing levels are by no means conclusive that there exists a vacant that should be filled.
The Union also relied on the following cases: Re OPSEU and Ministry of Transportation and Communications (November 7, 1986) GSB# 672/87 (Palmer) regarding temporary training and development positions; Re OPSEU and Ministry of Correctional Services (March 17, 1986) GSB# 498/85 (Verity) regarding failure to post a temporary vacancy created by a maternity leave; Re OPSEU and Ministry of Correctional Services (December 19, 1994) GSB# 803/91 (Dissanayake) regarding the conversion of unclassified positions under article 3.15.1 and Re OPSEU and Ministry of Transportation and Management Board Secretariat (May 14, 1997) GSB#2670/96 (R.J. Roberts) regarding the withholding of threatened positions for the purposes of bumping.
In summary, the Union submitted that these positions are permanent and must be filled in accordance with the terms of the collective agreement. The government has determined that the GICs are to be the responsibility of the MCCR and the number of positions has been set. There is no reason for the delay in classifying these positions and offering them to the bargaining unit members.
Mr. Marvy, for the Employer, asserted that there has been no violation of the collective agreement and asked that this aspect of the grievance be dismissed. The Union, it was said, cannot point to any provision of the collective agreement that has been breached and has not made any allegations of bad faith. Until the government decides about the funding to be allocated to this endeavour and until the classification of these positions has been firmly established it cannot open them to the bargaining unit members. The Union has asked you to remit these decisions to the parties but they are for the government to make, not the Union.
It was said that the provisions of the collective agreement relied on by the Union are of little assistance to this Board. Article 6 deals with permanent positions or new positions. These positions are neither at this stage of the process. Article 31 requires the employer to convert unclassified positions to part-time positions if the duties of the position have continued for more than two years and if there is an ongoing need for the work in the future. In this case it has not yet been two years and the employer is under no obligation to convert these positions until then.
It was said again that this is an issue of timing more than anything else. For example, until the classification of these positions is finally determined, how can the parties agree on who can bump into these positions. While the Employer acknowledged that this might be unfair to some employees, nevertheless, that, it submitted, is not a breach of the collective agreement. There has been no bad faith on the Employers part. Since the inception if the GICs, the Employer has been open and frank about the process. There have been no secrets about the intentions and development of these positions.
In support of its position the Employer relied on the following cases: RE OPSEU and Ministry of Transportation (November 5, 1992) GSB#3094/91 (Low); Re OPSEU and Ministry of Health (March 16, 1988), GSB#1439/86 (Knopf); Re OPSEU (Fox) and Ministry of Correctional Services (December 17, 1990), GSB# 663/90 (M. Wright); Re OPSEU (Radford) and Ministry of Natural Resources (June 12, 1997), GSB# 1426/96 (Knopf) and Re OPSEU and Ministry of the Attorney General (April 24, 1996), GSB#1118/93 (Mikus).
DECISION
The facts of this case are not in dispute. The GIC positions created by the government are now operational and have been since at least November of 1998. Since April of 2000, the responsibility for the administration of these GIC positions has been assigned to the Ministry of Corporate and Commercial Relations. There is no dispute that these positions are to become a permanent feature of the governments service to the public, and in many are ways are so today. However, there are some significant aspect of these positions that have not yet been finalised, namely the funding and classification designation. Does the Employer have a contractual obligation to designate these positions as permanent bargaining unit positions now, in light of what has been finally determined.
The Employer has the exclusive jurisdiction to determine whether a vacancy exists and the classification of that position if it does exist. However, it is clear from the jurisprudence that right is not unfettered and is to be exercised on an objective assessment of the available work. That limitation on the Employers discretion has been specifically expressed in article 31. While the Employer can, in the first instance, create a temporary or unclassified position, there is a temporal limitation on how long that position can exist outside of the provisions of the collective agreement. After two years, if the need for the duties of the position continues, the Employer must convert it to a classified position which would then be subject to the posting requirements of the collective agreement.
However, absent any allegations of bad faith, I fail to see any requirement under the agreement for the Employer to convert an unclassified position to a classified position before that two year period. Implicitly, article 31 gives the Employer to right to wait two years until it decides whether it wants the duties of a position to continue. Unless it could be shown that a delay in making that decision was really an attempt to circumvent or avoid the provisions of the collective agreement, the Employer is entitled to take the full two years before actually converting GIC positions into bargaining unit positions.
In the instant case, there are also practical and reasonable grounds for the Employers delay in proclaiming these position to be permanent. The funding is still outstanding. The amount of money to be allocated to this endeavour might affect the total number of positions. As well, the classification of these position have not been established. Some of them are presently OAG8's, some OAG9's and one is an FOI. On a practical level how can the Union know with any degree of certainty who is eligible to bump into these positions. Once an employee is handed a surplus notice, he/she is entitled to bump an employee with lesser seniority within his/her own classification. Since the GIC positions are not definitively classified, it could be that some OAG8's are allowed into some positions, some OAG9's in others and so on. It is possible that an employee could be unfairly denied a bump because of a classification limitation that subsequently is altered.
The Unions submissions concerning the unfairness caused by the delay are real. It is possible that an employee who is being surplussed will be denied access to a position that may become available in the future but too late to save his/her employment. But that inherent unfairness cannot be cured by replacing one situation with another that is susceptible to the same charges of unfairness for different reasons.
For the reasons stated above, there has been no breach of the collective agreement and this preliminary issue is dismissed.
Dated at Toronto, this 27th of September, 2000.