GSB#2002-1928

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The 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 Mitchell Barristers and Solicitors

FOR THE EMPLOYER

David Strang and Mary-Pat Moore Counsel Management Board Secretariat

HEARING

December 9, 2003.

Decision

The association contends bargaining-unit work is being done by persons who would be characterized properly as employees of the provincial government but are being treated as if they are not employees. This is the fourth in a series of interim decisions dealing with the association’s request for disclosure. An order for disclosure, issued on July 14, 2003, was amended in orders dated August 7 and September 11.

The disclosure mandated by these orders was restricted to a single ministry, eventually determined to be Management Board Secretariat (MBS). The initial order required disclosure of details about “all people not formally designated as employees, who are engaged for a period of more than ninety days … to perform work requiring regular attendance at one or more sites controlled by the employer. The order excluded “people in any category not arguably involving work of the bargaining unit” and stated such categories were to be “determined through agreement of the parties or by this board” In the end, no excluded categories were identified, probably because the process of determining them would have been more burdensome than was providing disclosure. MBS has made the required disclosure relating to 233 people.

The association now seeks an order for disclosure relating to the rest of the Ontario Public Service. The proposal advanced divides ministries into four groups. It would require disclosure for the first group by March 15, 2004 and for the last group by June 15, 2004. Opposing an order of this scope, the employer proposes to provide disclosure for the Ministry of Health by April 15, 2004.

I

In determining the appropriate scope of disclosure at this time, I am guided by the same considerations which underlie the order made on July 14, 2003. In that decision, I wrote:

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.

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.

Having ordered production relating to a single ministry, I went on to say:

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. (emphasis added)

The initial disclosure order was based largely upon the report of the provincial auditor. As the report provided reasonable grounds to suspect the collective agreement was being violated in a substantial way by six ministries, I decided the association was entitled to disclosure, relating to those ministries, which would not had been required otherwise. Nonetheless, I determined that the initial order would be limited to one such ministry and that the issue of disclosure for the remaining five would be “considered later with the benefit of the lessons learned in dealing with the first ministry.”

Should disclosure across the OPS be required at this stage in these proceedings? MBS has fulfilled its disclosure obligation, but the substantive issues about people engaged by that ministry have not been resolved. No determination has been made as to whether MBS, or any other ministry for that matter, has violated the collective agreement. In this context, I see no good reason to order disclosure by ministries not addressed in the report of the provincial auditor. For these ministries, the association has not demonstrated there are reasonable grounds to suspect substantial non-compliance with the collective agreement.

Six ministries come under suspicion because of the provincial auditor’s report. MBS and the Ministry of Health are among them. The employer does not object to providing disclosure for the Ministry of Health. In my view, disclosure at this stage should be limited to these two ministries and not extend to the other four mentioned by the provincial auditor. I come to this conclusion for two reasons. The first is that suspicion is not the same thing as proof; no violations of the agreement by MBS have yet been proven. If MBS has not contravened the agreement, one might reasonably wonder whether the same could be true of other ministries cited by the provincial auditor. The second reason is based upon learning from experience. MBS makes widespread use of consultants. The Ministry of Health makes widespread use of staff seconded from transfer payment agencies. Consultants and seconded staff make up a large proportion of the people working for the provincial government who are not designated as employees. Accordingly, experience gained in dealing with MBS and the Ministry of Health has the potential to grease the wheels of dispute resolution when attention turns to the other ministries.

II

The employer is directed to provide the same sort of disclosure for the Ministry of Health as has been provided for MBS. Such disclosure shall be provided by March 5, using a baseline date of January 7.

To facilitate the process of dispute resolution, after the employer has provided the required information about people not designated as employees, I propose the following timetable:

• The association shall endeavour to inform the employer, by March 12, as to which people on the list are “claimed” by the association.

• The employer shall endeavour to inform the association, by March 26, as to which of the people claimed by it are not contested, and to provide particulars to the association about those disputed.

• The association shall endeavour to provide, by April 2, particulars to the employer about the people claimed by it and disputed by the employer.

I decline at this stage to make any orders about people engaged by the Ministry of Health on the baseline date but not the disclosure date or about people engaged by the ministry on the disclosure date but not the baseline date.

Dated at Toronto this 19^th day of December 2003.