GSB#2010-2045

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 (Union)

Association

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

Kate Hughes Counsel for OPSEU Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Barristers and Solicitors

Lorne Richmond Counsel for AMAPCEO Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Labour Practice Group Counsel

HEARING

May 5, and May 31, 2011.

Decision

1This decision relates to the implementation of the Ontario Public Service Personnel Screening Checks Policy (“the Policy”), and, in particular, to the Phase 3 harmonization aspect of the Policy. The Policy and Guidelines were finalized in 2005 and Appendix B of the Policy provides as follows under the heading “Implementation Phases”:

Implementation Phase

Ministry/Program Area

Date

Phase 1

Prospective employees in the identified six program areas

Immediately following Cabinet approval

Phase 2

Existing employees in the six programs areas identified in phase 1

Following Cabinet Approval (TBD based on operational capacity and an assessment of implementation requirements)

Phase 3

Harmonization of screening check processes in areas of the OPS that currently conduct screening checks

Following Cabinet Approval (To be phased-in by ministry after January 2006)

Phase 4

Prospective and Existing employees in other business areas as identified from time to time by ministries

To be determined based on business need in priority areas

2It is the position of AMAPCEO and OPSEU that although a date for Phase 3 is not specifically prescribed, the fact that in late 2010 the harmonization of pre-existing security check processes has not commenced could not have been in the reasonable contemplation of the parties. In AMAPCEO’s grievance of October 15, 2010, there is reference to the Board’s consent order of October 26, 2007, wherein there was reference to the need for the Employer’s security priorities “to be addressed in an efficient and timely manner”. The bargaining agents seek an order directing the Employer to commence the harmonization on a date certain and to complete it on a date certain. The bargaining agents further seek an order directing that all re-checks in Ministries with a pre-existing practice take place in accordance with the Policy. The bargaining agents also seek production relating to the Ministries with pre-existing practices. It is the position of the Employer, inter alia, that no violation of the Collective Agreement has been established and that the remedies sought go beyond the scope of the grievance. At the commencement of the hearing on May 31, 2011, the Employer presented the bargaining agents with a written plan in connection with the commencement of Phase 3 for certain positions with estimated time lines. The plan does not set out a specified end date. Understandably, the bargaining agents were not in a position to respond to the substance of this plan.

3In terms of the background, I would note that the implementation of the Policy has given rise to a number of issues between the parties, with a number of those issues resulting in proceedings before this Board. Some of those issues have been complex and time intensive for the parties. The parties have resolved many issues, including an agreement that Phase 4 would proceed. With respect to Phase 3, in 2008, the Employer conducted a survey of all Ministries to obtain information about existing screening check practices. That survey was distributed on April 2, 2008 with responses received May 6, 2008 and a report to the bargaining agents dated June 26, 2008. The June 26, 2008 report summarizes the results and sets out next steps which include consultations with key stakeholders, including bargaining agents, and the development of implementation plans to harmonize existing Ministry practices with the Policy. However, it appears that this matter has not proceeded with dispatch.

4While, as Ms. Compagnone emphasizes, there is no specific time prescribed in the Policy for the commencement and completion of Phase 3, I agree with counsel for AMAPCEO and OPSEU that the circumstances at the time of the grievance, when harmonization had not yet commenced, are not consistent with a reasonable interpretation of the obligation the Employer assumed under the Policy. Accordingly, whether the analysis is that the grievance is well founded or that the ability to make such a determination is an appropriate exercise of the jurisdiction that I have retained in connection with this matter, I so declare.

5The real issue, as I see the matter, is whether the remedy ought to extend beyond a declaration. In commencing the process and establishing time lines, the Employer has accepted its responsibility for harmonization. Aside from any issue as to jurisdiction, it is my view that it would be inappropriate for me to order any further remedial relief at this time. The bargaining agents have sought a commencement date and the Employer, as of May 31, 2011, has provided a plan to begin. With a commitment to the commencement of the process it can now be anticipated that harmonization will proceed with some dispatch and it is my view that it would be inappropriate for me to establish an end date, which may or may not be realistic. If the bargaining agents are of the view that the process is not proceeding in a reasonable manner, they will no doubt raise this matter with the Employer and, failing a mutually satisfactory resolution, can bring the matter back on before me.

6I turn now to the submission that I should order that any re-checks in the “unharmonized” Ministries be conducted strictly in accordance with the Policy, including the involvement of the Security Service and Contingency Planning Branch (SSCPB). The effect of such an order would be immediate harmonization. While that is the ultimate goal, a goal that the parties have endorsed and will inevitably be achieved, I agree with Ms. Compagnone that such an order would not give effect to the Policy’s contemplation that checks outside of the Policy would continue and that there would be some deference to the Employer’s need to prioritize and manage the process. Of course, there are obvious significant advantages to the Ministries to bringing their checks within the ambit of the SSCPB’s operations, given the safeguards and confidentiality that are provided, as well as the immunity from challenge, given the agreement of the bargaining agents to the Policy. While I would anticipate that these advantages would be recognized and that the Ministries will make every effort to bring themselves within the ambit of the Policy and the protection of the SSCPB as soon as possible, I am not persuaded that making such an order is appropriate at this point. Rather, it is my view that the process that the Employer has now commenced should be allowed to unfold.

7I turn now to the production requests. In this regard I note that while the Employer has characterized aspects of the requests as a fishing expedition and expressed concern about the need to create documents, the request has been clarified as encompassing information readily available to the Employer. The surveys that are the foundation for the June 26, 2008 report to the bargaining agents have been referred to. Employer counsel advised that she would seek instructions on this issue. If that information is provided, it would seem that it may provide a foundation for the bargaining agents to understand the factual parameters of the pre-existing practices and may obviate the necessity of the provision of other information. The need for the bargaining agents to have relevant information in order to engage in the discussion necessary for an expedient resolution of this issue is clear and that principle is in no way disputed by the Employer. At this point I am not persuaded that a formal production order is appropriate and once again, I leave this in the hands of the parties. As previously indicated, this process has now commenced and the focus of the parties will no doubt be on moving it forward as quickly as possible, with the Employer voluntarily providing information to the bargaining agents that they require to fulfill their obligation to fully understand the matter and to represent the interests of their members.

8In summary, while the grievance succeeds, and I so declare, I decline to make any further order. I remain seized of this matter and available to resolve any issues that the parties are unable to resolve themselves.