GSB# 0573/99, 1254/99, 1409/99, 1802/99, 1803/99, 0199/00, 0258/00, 0448/00, 1194/00, 1291/00, 1486/00, 1537/00, 0386/02

UNION# 99B661, 99B960, 99F025, 00B060, 00B061, 00B062, 00B157, 00A370, 00B216, 00C131, 00B408, 01B042, 01B043, 01B044, 01B054, 02B351

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pilon et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

• and -

The Association of Law Officers of the Crown

Intervenor

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Stephen Patterson Associate Director, Labour Practice Group Management Board Secretariat

FOR THE INTERVENOR

Kathleen J. Martin Sack Goldblatt Mitchell Barristers and Solicitors

HEARING

October 1, 2002.

DECISION

The Ontario Public Service Employees Union (OPSEU) has referred to arbitration a number of grievances contending the Ministry improperly surplussed one or more employees in the classification of Parental Support Worker (PSW). At this stage in the proceedings, OPSEU’s complaint is limited to the transfer of family court work from PSW’s to lawyers employed by the ministry. This interim decision deals exclusively with applications to intervene filed by the bargaining agent for the lawyers, the Association of Law Officers of the Crown (ALOC).

I

The factual backdrop for the grievances is summarized in my interim decision dated November 5, 2001:

In an attempt to minimize the time devoted to hearing evidence, the parties agreed to present legal argument based upon the facts alleged by the union which are contained in Appendix “A” to this decision. My only task at this stage is to determine whether such facts would constitute prima facie proof of a violation of the collective agreement

PSW’s worked in the Ministry’s local offices. Their primary function was to reduce the cost of benefits paid to welfare recipients by recovering monies to which they were entitled by way of spousal support or child support. The welfare beneficiaries with whom PSW’s worked were sole-support parents or disabled persons. This work occurred under the auspices of the Family Benefits Act (FBA).

The FBA was repealed along with the General Welfare Act which had been administered by municipalities. These two pieces of legislation were replaced by the Ontario Disability Support Program Act (ODSPA), administered by the Ministry, and the Ontario Works Act, administered by municipal delivery agents. Under the new legislative framework, disabled persons remain with the jurisdiction of the Ministry but sole-support parents fall under the jurisdiction of municipal delivery agents.

The introduction of a new welfare regime did not change the substantive law concerning the relationship between welfare benefits and support payments. The Ministry requires municipalities to employ Family Support Workers (FSW’s) who work with single parents and do the same tasks as PSW’s did. The ODSPA also provides for the appointment of FSW’s within the Ministry. At least some PSW’s were appointed as FSW’s by the Ministry during the transitional period between the old and new legislative regimes, but all PSW’s and FSW’s were surplussed when the files of sole-support parent were transferred to municipalities.

To some extent, the functions previously performed by PSW’s are now carried out by people holding other positions within the Ministry. Some of the work being done relates to closed cases involving sole-support parents. The rest of the work being done concerns ongoing matters related to disabled persons--i.e. matters which pre-date the ODSPA. Work arising from new matters under the ODSPA is being allowed to accumulate pending a decision on how it will be performed.

In relation to all of the work currently being done, the set of duties previously performed by PSW’s have been divided into three parts and each part has been assigned to a different component of the Ministry. The three components are: (1) the Legal Services Branch in Toronto; (2) the Ontario Works Support Services Arrangements (OWSAS) Office also in Toronto; and (3) local offices. In terms of the percentage of time PSW’s devoted to these duties, the largest component of their functions went to the Legal Services Branch and the smallest component remains in the local offices.

OPSEU alleges all family court work was done by PSW’s. According to this allegation, PSW’s spent between 35% to 40% of their time in court, excluding time they devoted to preparing for court appearances. All such work is now done by lawyers who are not part of OPSEU’s