GSB# 1928/02

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)

Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Andrea Bowker Sack Goldblatt Mitchel Barristers and Solicitors

FOR THE EMPLOYER

David Strang Counsel Management Board Secretariat

HEARING

July 7, 2003.

DECISION

The instant dispute concerns the performance of bargaining-unit work by people who are not members of the unit. The association contends such work is being done by non-members who would be characterized properly as employees of the provincial government but are being treated as if not employees. This interim decisions deals with the association’s request for production of documents and other materials.

I

The dispute is dated October 28, 2002 and states:

The Association asserts that the Employer’s practice of using transfer payment and other agency or third party employees to perform bargaining unit work constitutes a violation of the collective agreement. In particular, the Association asserts that the collective agreement restricts the Employer from assigning work normally performed by members of the AMAPCEO bargaining unit to persons not part of that bargaining unit.

Without restricting the generality of the foregoing, the Employer has violated the collective agreement by, among other things,

• Entering into contracts with various outside agencies, including transfer payment agencies to supply individuals,

• Entering into contracts with individuals, and

• Having individuals seconded from outside agencies

to perform work normally performed by members of the AMAPCEO bargaining unit.

Although the extent and particulars of the practice being disputed herein is fully within the knowledge of the Employer, by this grievance AMAPCEO requests disclosure and particulars of all contracts and other arrangements with agencies and individuals performing work of the AMAPCEO bargaining unit.

As a result the Employer has violated Article 1, 3, 16, 18 and all other relevant articles and implied restrictions contained in the collective agreement by falling to post and fill vacancies in accordance with the collective agreement, and the collective agreement as a whole by failing to apply it to work and/or persons covered by the collective agreement.

By way of redress, AMAPCEO seeks:

• a declaration that this practice violates the collective agreement;

• an order that the work currently being performed by non-members of the bargaining unit as complained of in this dispute be performed by members of the bargaining unit;

• an order that the Employer post vacancies in accordance with the collective agreement;

• an order that the Employer pay damages to the Association equivalent to the amount of Association dues that would have been remitted to the Association had the collective agreement not been violated;

• such further and other relief as may be required to remedy the Employer's violations of the collective agreement.

The association’s request for disclosure was first set out in a letter dated February 17, 2003:

The above-noted grievance is scheduled for hearing on March 27, 2003. I write in anticipation of that hearing date, and in response to the Government's request for particulars dated November 28, 2002.

Needless to say, AMAPCEO is not in a position to know the particulars of each and every violation of the collective agreement resulting from the use of temporary agency or other non-bargaining unit members to perform work normally performed by members of the AMAPCEO bargaining unit. In the dispute filed October 28, 2002, AMAPCEO specifically requested production of documents detailing the contractual and other arrangements between the Government and other fee entities or individuals performing work normally performed by members of the AMAPCEO bargaining unit including, but not limited to, fee for service arrangements, arrangements with transfer payment agencies, secondments, and vendors of record. These documents and details are within the knowledge of the Government. We hereby renew our request for production and request that the necessary documents be provided to us in a timely fashion. These documents would include, but are not limited to:

1. internal documents pertaining or preparatory to arrangements with outside (i.e., non-AMAPCEO) entities or individuals to perform work normally performed by members of the AMAPCEO bargaining unit;

2. requests for proposals, requests for interest, tender documents or any other type of documents relating to the solicitation of outside entities or individuals to perform work normally performed by members of the AMAPCEO bargaining unit;

3. responses received by the Government to the documents set out in #2, above, and all other expressions of interest, whether in response to the documents set out in #2 or not, in performing work normally performed by members of the AMAPCEO bargaining unit;

4. contracts, invoices or any other type of documents governing or pertaining to the performance of work normally performed by members of the AMAPCEO bargaining unit by outside entities or individuals; and

5. particulars of the work performed by such individuals or entities and any documents setting out the scope of work performed .

Please note that the term “documents" includes, but is not limited to, correspondence, contracts, memos, notes, data, invoices and minutes, in any form including, but not limited to, written, electronic and audio visual communications or information.

At the hearing, counsel for the association stated paragraph 5 includes “work product” and also noted her client was “interested” in people doing bargaining unit work sixty days before the grievance was filed. Counsel said the association would be happy to receive initially “some sort of summary” of relevant information rather than sources documents and other materials.

The association’s letter of February 17 also contained the following response to the employer’s request for particulars:

By way of particulars of the dispute, we provide the following instances as examples only of which we understand that AMAPCEO work is being performed by non-AMAPCEO bargaining unit members, but expressly do not limit the dispute to the following instances:

1. Senior Financial Analyst, MOHLTC, Health Care Programs Division, Finance and Information Management

2. Regional Program Consultant, A TG, North Region Victim Services Division Office

3. Regional Coordinator (Acting), MOHLTC, Health Care Programs Division, North Region Branch, Planning and Support

4. UAP Project Manager , MOHLTC, Health Care Programs Division, Under-serviced Area Program, Northern Health Programs

5. FIC Special Projects, MOHLTC, Finance and Information Management, Divisional Finance – Hospitals

6. OIS Specialist, MCFCS, Business Solutions Division, Children's Programs and Corporate Systems I&IT

7. Consultant, METCU, Education Finance Branch, Financial Forecasting and Modelling Unit

8. Consultant, METCU, Business Planning and Expenditure Management Branch, Business Planning and Financial Unit

9. Regional Training Coordinator , MOHLTC, Emergency Health Services\

10. Planner, MMAH, Provincial Planning and Environmental Services Branch, Legislation and Research Section

11. Consultant, MMAH, Municipal Finance Branch, Tax and Revenue Policy Section

12. IFIS Implementation Project, Business Planning and Financial Management, MBS:

• Business Process Analyst

• Systems Analyst

• IFIS IT Team Lead

• Communication and Training Coordinator

-Business Team Lead

13. Accommodation Coordinator, MBS, Business Planning and Financial Management Branch , Accommodation Services

14. Consultant, MBS, Application Support Service Systems Branch, Corporate Business Solutions

II

In support of the request for disclosure, counsel for the association referred me to the 2002 Annual Report of the Provincial Auditor of Ontario. Counsel submitted for my consideration the portion of this report surveying the use by six ministries of consulting services as defined in the Management Board of Cabinet Directive on Consulting Services. The auditor’s report lists the ministries involved and describes the audit procedure used:

The scope of our audit included the following six ministries (the Ministries): Management Board Secretariat and the ministries of the Environment, Finance, Health and Long-Term Care, Natural Resources, and Public Safety and Security (Public Safety and Policing Services Divisions only, constituting the former Ministry of the Solicitor General). Our audit work included interviews with appropriate staff at the Ministries, a review of the Directive and other relevant administrative procedures, and an examination of consulting services contracts, invoices, and other related documents.

Prior to the commencement of our audit, we identified the audit criteria that would be used to conclude on our audit objectives. These were reviewed and agreed to by senior management at the Ministries.

Our audit was performed in accordance with the standards for assurance engagements, encompassing value for money and compliance, established by the Canadian Institute of Chartered Accountants, and accordingly included such tests and other procedures as we considered necessary in the circumstances.

The auditor reported these six ministries spent $293 million on consulting services in the 2001/02 fiscal year, approximately three times more than in 1997/98 (page 180). Under the heading “Continuous Reliance on Consultants and Assignment Definition”, the report states:

We found numerous instances in which Ministries did not comply with the Directive requirements that:

• consultants must only be hired on a defined assignment; …

Specifically:

• Many of the Ministries depended heavily on the use of consultants, particularly in the area of information technology, as the examples in the following table illustrate.

Consultant Use at Ministries, 2001/02

Ministry

of IT

Consultants

of IT

Employees

Management Board Secretariat

170

540

Health and Long-Term Care (Human Services Cluster)

120

350

Public Safety and Security (Infrastructure Services)

100

90

Natural Resources

65

275

Sources of data: Management Board Secretariat, Health and Long- Term Care, Natural Resources, and Public Safety and Security

On average, the per diem rates of these consultants were two to three times the salaries and benefits of comparable employees at the Ministries. …

The Ministries acknowledged that many consultants were engaged to perform day-to-day operational duties rather than work on defined assignments. According to the Ministries, the reason that they had to extensively rely on the use of consultants was that, in recent years, they had had more difficulty in obtaining approval and funding to increase the number of their full-time staff and salaries ranges to the levels needed to attract qualified candidates. However, such use of consultants was not in compliance with the requirements of the Directive that consultants only be hired on a defined assignment and that ministries must avoid continuous reliance on consultants.

We also noted that, at the Ministry of Public Safety and Security, more than 40 consultants were former ministry employees who had left the Ministry in 2001 and were subsequently hired by consulting firms. They returned to the Ministry as consultants to perform their previous duties at per diem rates that were much higher than their salaries as ministry employees. The Directive states that engaging the services of former employees must bear the closest public scrutiny to ensure that no unfair advantage exists. Caution must be particularly exercised if less than one year has passed since former staff left the employment of a ministry. In this case, we found that the majority of the consultants came back within a few days of having left the Ministry. (pages 181 and 182; emphasis added)

According to counsel for the association, these passages from the auditor’s report demonstrate the practice challenged by her client is “rampant throughout the OPS.”

For positions on the association’s list of particulars, counsel for the employer offered to provide most of the material sought. As to all other positions, counsel described the association’s request for production as a “fishing expedition” conducted in the hope of uncovering violations of the collective agreement. Counsel argued the provincial auditor’s report for 2002 provides no more support for the instant production request than a report documenting payroll errors would provide for a request to produce all payroll records.

In reply, counsel for the association argued there is a significant difference between a dispute about who is performing bargaining-unit work and one about pay. According to this line of argument, any employee who has been short changed knows, or ought reasonably to know, what has occurred and can provide particulars to the bargaining agent. In contrast, an employee cannot easily determine whether someone doing work of the bargaining unit at the next desk is being treated as a consultant. The association also has no ready way to obtain the information necessary to make this sort of determination. This information is not readily available to the association or its members, but it is possessed by the employer.

In support of the argument that management is required to disclose information not available to other disputants, counsel for the association relies upon OLBEU and Liquor Control Board of Ontario, File No. 0923/97, decision dated December 1, 1997 (Knopf), where the union requested disclosure of all materials relied upon or produced by the selection panel conducting a job competition. Granting this request over management’s objection to a “fishing expedition”, Vice-Chair Knopf noted “the information which is being requested is within the sole control of the Employer” (page 6).

I do not view the association’s request for production as a “fishing expedition.” The report of the provincial auditor provides reasonable grounds to suspect that bargaining-unit work in six ministries is being done by a substantial number of people outside the unit who would be characterized properly as employees. In addition, the dispute at hand is significantly different than one about employees being underpaid, as the employer has ready access to information, not accessible to other disputants, about who is performing bargaining unit work. For these reasons, I conclude the association is entitled to some form of disclosure for at least the six ministries mentioned in the auditor’s report.

III

Disclosure should be tailored with the following objectives in mind:

• to provide information arguably relevant to the identification of people performing bargaining-unit work who are not members of the unit even though they would be characterized properly as employees of the provincial government;
• to ensure the process of disclosure is expeditious and does not entail undue cost; and
• to ensure the larger dispute process also is expeditious and does not entail undue cost.

Bearing these objectives in mind, I issue the following order for initial disclosure:

1. The employer shall provide to the association a list of the names of all people, save those expressly excluded by paragraph 5 below, not formally designated as employees, who are engaged for a period of more than ninety days, which period includes a common baseline date for all individuals, to perform work requiring regular attendance at one or more sites controlled by the employer.
2. The list shall be accompanied by information about each individual 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 to be provided may be determined through agreement of the parties or by this board on the application of either party.
3. The list and accompanying information shall be provided by September 4, 2003, one week before the next hearing date, for one of the six ministries surveyed by the provincial auditor. That ministry shall be selected through agreement of the parties or by this board on the application of either party.
4. The baseline date for disclosure under paragraph 3 above shall be the date of this order unless varied through agreement of the parties or by this board on the application of either party.
5. The list described in paragraph 1 above shall not include people in any category not arguably involving work of the bargaining unit, such categories to be determined through agreement of the parties or by this board on the application of either party.
6. The date of September 4, 2003 in paragraph 3 above may be varied through agreement of the parties or by this board on the application of either party.
7. The period of ninety days and the requirement for regular attendance in paragraph 1 above may be varied through agreement of the parties or by this board on the application of either party.

The issue of disclosure for the remaining five ministries surveyed by the provincial auditor, and for all other ministries, will be considered later with the benefit of the lessons learned in dealing with the first ministry.

Dated at Toronto this 14th day of July 2003.