GSB#1942/94, 0952/00
UNION#MOH-U978, 99U025
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE GRIEVOR Richard Blair
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Mary Pat Moore and Stephen Patterson
Legal Services Branch
Management Board Secretariat
HEARING July 11, October 18 and November 13, 2001.
INTERIM AWARD
Introduction:
This Interim Award is in respect to a number of legal issues that arose in a series of grievances in which OPSEU has alleged that the Ministry has failed to follow the Collective Agreement in that it has improperly staffed the Ministry by using a number of staffing methods, namely, fee for service individuals, agency employees, transfer payment employees and unclassified staff.
In order to get a handle on the depth of the grievance, the parties negotiated a comprehensive protocol on information gathering, all of which was incorporated into a Board order dated May 7, 2001. This order set out in great detail the information to be collected, the order of the inquiry and the questions to be asked.
Then at the hearing on July 11, 2001 the parties advised me that before we could proceed with the implementation of the May 7th protocol, they wanted an award dealing with the issue as to whether or not the Ministry had the right to use agency staff to do bargaining unit work. That question is the subject matter of this grievance. The term “agency staff’ refers to individuals who are employed by a private enterprise staffing agency who perform work for the Ministry at Ministry locations alongside Ministry employees.
Trillum Drug Program:
It was agreed that the legal issues would be presented within the factual context of how the Trillum Drug Program operates.
The issues to be decided were twofold:
The first issue is whether or not the agency employees were performing work that is normally performed by bargaining unit members.
The second issue is, if I find that the answer to Question #1 is “Yes”, can the Ministry legally have this bargaining unit work done by agency employees?
Are agency employees in the Trillium Drug Program performing work that is normally performed by bargaining unit employees?
The only witness called was Mr. Carl Marshall, who is presently the Associate Director of the Drug Programs Branch and prior to that he was the Acting Director of the Trillium Drug Program. He has been with the Ministry over 20 years.
The Trillum Drug Program provides for the direct payment of prescription drugs for certain people that do not have full insurance coverage and whose drug costs in relation to their income entitles them to coverage. Applicants not only apply initially but also must renew their applications every year. Most applications are sent in by mail. As the program year is August 1st to July 31st, the renewal applications are sent out in April and received back until about September. Initial applications come in all year round. This means that there is a predictable seasonality to the staffing requirements, in that from about April to September 9 (in other words for about half the year) there is a greater demand for both File & Mail Clerks as well as for IPCPC, who process the applications and renewals.
Agency staff is used in two positions, Mail & File Clerk and IPCSC (Information Processing and Customer Service Clerk). Although more of these positions are used during the busy season, the Program uses agency employees in both positions throughout the year. According to Mr. Marshall, there has never been a time when the Program has not used agency employees for both positions. There are also classified and unclassified IPCSC positions. All the Mail & File Clerk positions are staffed by agency employees, however it is admitted that the position of File & Mail Clerk is a position within the OPS routinely staffed by both classified and unclassified staff.
In other words this Program routinely uses agency employees to staff its core staffing needs as well as it predictable seasonal needs.
The Ministry is not claiming that there is any economic advantage to using agency employees. Rather the only reasons given as to why the Program uses agency employees over bargaining unit employees is as follows:
The Program is limited in the number of classified and unclassified positions that are funded under the “Staffing” line in their budget. However staffing through agencies does not show up on the Staffing line, as it shows up on the “Other Direct Operating Expenses” (“ODOE”) line. To move money from the ODOE line to the Staffing line requires MBS approval. In other words, this reason has nothing whatsoever to do with actual cost to the Ministry, rather it has to solely with the budgeting process.
There have been discussions about changing the way in which the Program would deliver its services, which may affect the number of File and Mail Clerk and IPCSC positions required as the whole mail function could be outsourced. However this discussion has been going on for a fair period of time and nothing has been decided to date.
In essence there is no difference at all between the work being performed by bargaining unit members and agency staff.
Based on this evidence there is no doubt in my mind that the agency staff in the Program are performing bargaining unit work on a regular and/or seasonal basis.
Is the Ministry entitled to have bargaining unit work performed on a regular or seasonal basis by agency employees?
There is no dispute between the parties that the agency employees are not Crown employees and that the GSB has no jurisdiction to declare such a person an employee of the Crown, so as to bring them within the collective agreement. This is a result largely of sections 1, 8.1(3) and 8.1(