Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Correctional Services), 1993 CanLII 7817

[1993] OLRB Rep. January 56

2476-89-R; 2477-89-R; 2478-89-R; 2479-89-R; 2480-89-R Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario as represented by the Ministry of Correctional Services, and St. Leonard's Society of Metropolitan Toronto, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario as represented by the Ministry of Correctional Ser­vices, and Community Liaison Services, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario as represented by the Ministry of Correctional Services, and Black Inmates and Friends Assembly, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario as represented by the Ministry of Correctional Services, and Streetlink Incorporated, Respondents

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. H. Wightman and D. A. Patterson.

APPEARANCES: D. Wright for the applicant OPSEU; M. Fleishman for the Crown/Ministry of Correctional Services; P. J. Falzone for Streetlink incorporated; D. C. Daniels for the St. Leonard's Society; B. Loewen for the Black Inmates and Friends Assembly, no one appearing for Community Liaison Services.

DECISION OF R. O. MacDOWELL, ALTERNATE CHAIR, AND BOARD MEMBER W. H. WIGHTMAN; January 14, 1993

1. These are applications under the Successor Rights (Crown Transfers) Act which were scheduled for hearing together because they raise similar legal issues. They are part of a broader grouping of proceedings, all of which involve the application of the Crown Transfers Act to certain contractual relationships between the Crown and employers governed by the Ontario Labour Rela­tions Act. Because these cases involve similar legal themes, the Board's decisions in these matters are being released contemporaneously.

2. In each of the current cases, the Crown has entered into a contract with a community organization. In each case, the Crown buys services which the agency provides, with its own per­sonnel, in accordance with the terms of the contract. The parties to that agreement characterize their relationship as purely contractual: money passes from the Crown to the agency, and, in return, services are provided to the Crown by that agency. The relationship is economic and arms length. The agency does not draw its essence from the Crown, nor has it acquired from the Crown the elements or personnel necessary to fulfil the contract.

3. OPSEU contends that each of these contracts constitutes a transfer of part of the Crown's "undertaking" to the community agency - with the result that OPSEU's bargaining rights and collective agreement attach to the agency employees when they are doing the work contem­plated by the contract. OPSEU asserts that it represents those employees when they are doing that work, and that their terms and conditions of employment must be those prescribed in the civil ser­vice collective agreement. To illustrate: three employees of the respondent Black Inmates and Friends Assembly ("BIFA") spend, between them, some 16 hours at the Metro East Detention Centre providing services prescribed in the 1989 contract with the Crown. OPSEU asserts that while so engaged, they are represented by OPSEU, and their terms and conditions of employment must conform to the OPSEU collective agreement with the Crown. That agreement covers the civil servants whom OPSEU represents pursuant to the Crown Employees Collective Bargaining Act, and among those civil servants are Crown employees of the Ministry of Correctional Services ("MCS") working in correctional institutions.

4. OPSEU does not claim that any civil servant/OPSEU member has been "privatized", or has lost a job. Nor is there any evidence that any civil servant/OPSEU member has been otherwise disadvantaged because of the subcontract. Indeed, the "work" involved in some of these contracts does not always amount to a full-time job for a Crown employee, and is sometimes mixed with vol­unteer services beyond the scope of the contract. Nevertheless, OPSEU contends that "work" which is ordinarily done, or similar to that done, by civil servants is now being done by employees of the community agency. It is the alleged "movement" of this "work opportunity" from the Crown to the subcontractor that OPSEU argues is a "transfer" to which the Crown Transfers Act applies. In OPSEU's submission, a "part" of that Crown "undertaking" - the work opportunities - has been transferred to the subcontractor, and OPSEU's bargaining rights necessarily follow. None of the employees are members of OPSEU or have had any previous connection with OPSEU or the civil service.

5. The terms of the commercial arrangements will be set out in more detail below. At this stage, it may be useful to set out certain sections of the Crown Transfers Act:

1.-(1)(a) "bargaining agent" means an employee organization that has representation rights under the Crown Employees Collective Bargaining Act or a trade union or council of trade unions that is certified as a bargaining agent under the Labour Relations Act;

(f) "transfer" means a conveyance, disposition or sale;

(h) "undertaking" means a business, enterprise, institution, program, project, work or part of any of them;

2.-(1) Where an undertaking is transferred from the Crown to an employer and a bargaining agent has a collective agreement with the Crown in respect of employees employed in the undertaking, the employer is bound by the collective agreement as if a party to the collective agreement until the Board declares otherwise.

4.-( 1) Where an undertaking was transferred from the Crown to an employer or from an employer to the Crown and an employee organization, trade union or council of trade unions was the bargaining agent in respect of employees employed in the undertaking immediately before the transfer and,

(a) a question arises as to what constitutes a unit of employees that is appropri­ate for collective bargaining purposes in respect of the undertaking; or

(b) any person, employee organization, trade union or council of trade unions claims that by virtue of section 2 or 3, a conflict exists as to the bargaining rights of the employee organization, trade union or council of trade unions,

any person, employee organization, trade union or council of trade unions concerned may apply to the Board, in the case of the transfer of the undertaking to an employer, or to the Tribunal, in the case of the transfer of the undertaking to the Crown, and the Board or the Tribunal, as the case requires,

(c) may determine the composition of the unit of employees referred to in clause (a);

(d) may amend, to such extent as the Tribunal or the Board considers neces­sary,

(i) any bargaining unit in any certificate issued to any trade union or council of trade unions,

(ii) any bargaining unit defined in any collective agreement;

(iii) any unit of employees determined by the Tribunal to be appro­priate for collective bargaining purposes in respect of the under­taking, or

(iv) any unit of employees that is designated by the Lieutenant Gov­ernor in Council as an appropriate bargaining unit for collective

bargaining purposes in respect of the undertaking.

(2) Where an undertaking is transferred from the Crown to an employer or from an employer to the Crown, any person, employee organization, trade union or council of trade unions may apply to the Board, in the case of the transfer of the undertaking to an employer, or to the Tri­bunal, in the case of the transfer of the undertaking to the Crown,

(a) within sixty days after the transfer of the undertaking; or

(b) within sixty days after written notice is given by the employee organization, trade union or council of trade unions of desire to bargain to make or renew, with or without modifications, a collective agreement,

and the Board or the Tribunal, as the case requires, may terminate the bargaining rights of the employee organization, trade union or council of trade unions bound by a collective agreement in respect of employees employed in the undertaking or that has given notice, as the case may be if in the opinion of the Board or the Tribunal the transferee of the undertaking has changed the character of the undertaking so that it is substantially different from the undertaking as it was carried on immediately before the transfer.

5.-( 1) Notwithstanding section 2, where an undertaking is transferred from the Crown to an employer who intermingles the employees employed in the undertaking immediately before the transfer with employees employed in one or more other undertakings carried on by the employer or an undertaking is transferred from an employer to the Crown and employees employees employed in the undertaking immediately before the transfer are intermingled with employees employed in other undertakings of the Crown and an employee organization, trade union or council of trade unions that is the bargaining agent in respect of employees employed in any of the undertakings applies to the Board, in the case of the transfer of the undertaking to an employer, or to the Tribunal, in the case of the transfer of the undertaking to the Crown, the Board or the Tribunal, as the case requires,

(a) may declare that the employer or the Crown, as the case may be, is no longer bound by the collective agreement referred to in section 2 or 3;

(b) may determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) may declare which employee organization, trade union or council of trade unions shall be the bargaining agent in respect of each such bargaining unit; and

(d) may amend, to such extent as the Board or the Tribunal considers neces­sary,

(i) any certificate issued to any trade union or council of trade unions,

(ii) any bargaining unit defined in any collective agreement,

(iii) any unit of employees determined by the Tribunal to be appro­priate for collective bargaining purposes in respect of any of the undertakings, or

(iv) any unit of employees that is designated by the Lieutenant Gov­ernor in Council as an appropriate bargaining unit / or collective bargaining purposes in respect of any of the undertakings.

(2) Where an employee organization, trade union or council of trade unions is declared to be a bargaining agent under subsection (1) and it is not already bound by a collective agreement with the successor employer in respect of employees employed in the undertaking that was transfer­red, the employee organization, trade union or council of trade unions is entitled to give to the successor employer written notice of desire to bargain to make or renew, with or without modi­fications, a collective agreement.

6. Each of the contracts under review involves the Ministry of Correctional Services, and the inmates of a provincial correctional institution. The Ministry of Correctional Services Act pro­vides, in part:

7. The Minister is responsible for the administration of this Act and any Acts that are assigned to him by the Legislature or by the Lieutenant Governor in Council.

8. it is the function of the Ministry to supervise the detention and release of inmates, parolees and probationers and to create for such persons a social environment in which they may achieve changes in attitude by providing training, treatment and services designed to afford an inmate, parolee or probationer the opportunity for successful personal and social adjustment in the com­munity, and, without limiting the generality of the foregoing, the objects of the Ministry are to,

(a) provide for the secure custody of persons awaiting trial or convicted of an offence;

(b) establish, maintain and operate correctional institutions;

(c) provide programs and facilities designed to assist in the rehabilitation of inmates;

(d) establish and operate a system of parole;

(e) provide probation services; and

(f) provide programs for the prevention of crime.

8.-(2) The Minister, for and in the name of the Crown, may enter into any contract or agree­ment that he considers advisable for the purpose of carrying out the provisions of this Act.

(3) The employees of the Ministry under the direction of the Minister or the Deputy Minister may enter into contracts or agreements for and in the name of the Crown to carry out the responsibilities of the Ministry under this Act.

7. We should note that the issue before us is whether there has been a "transfer" of "part" of the Crown's "undertaking" within the meaning of the Crown Transfers Act, which extends OPSEU's bargaining rights to the employees of the respondent community organizations. If there has been, we must then define the nature and extent of those bargaining rights in the new organiza­tional setting. There is no allegation that the employees of the respondents are "Crown employ­ees", or that the nature of the economic relationship makes the respondents "Crown agents" while they are performing their obligations under the contract (i.e. that the OPSEU agreement applies because these workers are really employees of the Crown or a Crown agency).

8. It will be convenient to consider each of the contracts separately.

The BIFA Contract

9. The Black Inmates and Friends Assembly began in 1975 as a non-profit organization created and operated by inmates within Milhaven Penitentiary. Its primary purpose was, and remains, to address the special needs of the black inmate community.

10. Throughout the 1970's BIFA spread to a number of other federal institutions. Each prison created its own organization separately chartered by BIFA and run by the inmates them­selves. The various chapters address local concerns within the framework of the organization's gen­eral objectives.

11. Over the years BIFA has formed strategic alliances with other black community organi­zations such as the United African Improvement Association and the Jamaican Canadian Associa­tion. These groups have educational, cultural and advocacy functions which complement those of BIFA. BIFA has also forged links with black business organizations. Since 1985 BIFA has been an independent group.

12. The cultural and housing services provided by BIFA are delivered through volunteer members and part-time workers. Apparently, there is only a limited number of people who are able to provide these services effectively, and BIFA is believed to be the only group allowed to use the same personnel in various federal penal institutions. However, BIFA's activities are much broader than those undertaken in federal prisons, and include black community initiatives, com­munity organization, and advocacy.

13. Nevertheless, the major focus of BIFA's organization, and seventy-five per cent of its efforts, are directed to the operation of programs for federal institutions in respect of federal inmates (who, however, may be incarcerated from time to time in provincial jails). BIFA's work for MCS at the Metro East Detention Centre comprises a small proportion of its total activities, and a small proportion of its actual funding. However, the "work" that BIFA does for MCS can­not be easily measured in economic terms, because the "volunteer" component overlaps with activities that are subsidized in various ways. It is this flavour of "subsidy" rather than "fee for ser­vice" which makes it so difficult to analyze BIFA's activities.

14. What has happened over the years is that services initially organized on a self-help or volunteer basis came to be recognized as a valuable adjunct to institutional programs, and there­fore began to be subsidized or formally "contracted". But as Beverly Folkes, BIFA's Executive Director explained, the work components cannot be easily separated, nor does BIFA try to do so; and that makes it difficult to establish how many hours BIFA workers actually devote to provincial inmates. The contract is not an unfailing guide, and, of course, no-one complains if BIFA workers spend more hours than those specified in the contract. Ms. Folkes described the extra functions and the volunteer time as a "bonus", and pointed out that BIFA would be working in penal institu­tions regardless of the contracts with MCS. Similarly, although the contract with MCS refers to "discharge planning", that is a fairly elastic term, which in Ms. Folkes' opinion, covered almost any contribution to the pre-release rehabilitation process, and almost any kind of assistance that might facilitate the inmate's return to the community. Again, whatever purpose the contract defi­nition may serve, no one worries much about it in practice.

15. An additional complication is that BIFA workers at the Metro East Detention Centre also make contact with "federal" inmates who may be temporarily incarcerated there (for a parole violation, for example) and may be dealt with pursuant to BIFA's contractual arrangements with the Federal Government. BIFA workers may be in an institution for reasons other than the MCS contract, and, in fact, it was its federal activities which initially drew the organization to the atten­tion of MCS.

16. It is also difficult to divorce the counselling done inside the prison from the networking, follow-up and liaison done by BIFA in the community on behalf of black inmates. Indeed, it is the ability of BIFA to make these connections and build these bridges to the community which con­tribute to its effectiveness, and distinguish its functions from in-house counselling or rehabilitation programs which terminate upon the inmates' release. Ms. Folkes found it hard to specify how many of the hours mentioned in the MCS contract were spent inside the jail and how many were devoted to outside activities.

17. For present purposes, therefore, we should note that if OPSEU's bargaining rights and

collective agreement are restricted to the "work" done by BIFA workers pursuant to BIFA's con­tract with MCS, such workers would be constantly moving in and out of the OPSEU unit/agreement, depending upon whom s/he was seeing or what s/he was doing from time to time. The problem would be exacerbated if "volunteer" work had to be distinguished from work hours specified in the contract.

18. We will return to this practical problem later.

19. Ms. Folkes described BIFA's role as that of an intermediary or mediator between the inmate and the custodial caregiver. BIFA is a culturally-sensitive "go between", which helps the inmates cope with the prison environment and helps the custodians understand the special needs of these prisoners. According to Ms. Folkes, BIFA workers have knowledge and sensitivity which the MCS employees lack, so that BIFA may be able to identify irritants or rehabilitative opportunities which would not be apparent to a white correctional officer. Ms. Folkes gave such examples as: the special diet required for a Rastafarian; the newspapers, community bulletins or newsletters which might be of interest to black inmates; the range of communication problems associated with West Indian dialects; and an appreciation of more subtle, culturally-influenced forms of social behav­iour. As an example, she mentioned the way black men in the West Indies are conditioned to react to authority figures. They avert their eyes, which, to them, is intended to accord deference, but to a white observer, might be considered "shifty".

20. It is common ground that the goals of MCS and BIFA overlap, and that both organiza­tions hope to bring about rehabilitation, positive personal change, and successful reintegration into the community. In Ms. Folkes' submission, those goals can best be accomplished by understanding the needs of black inmates, and by building positive connections with the black community and its institutions.

21. In or about February 1987 BIFA submitted a formal proposal to the MCS for the provi­sion of cultural liaison, discharge planning, and post-release services, for black inmates at the Metro East Detention Centre. By this time, of course, BIFA had an established expertise and presence, not only in the black community, but in a number of penal institutions as well. BIFA's proposal was accepted as a pilot project, from November 1987 to March 1988, involving eight hours' service per week. Both parties were satisfied with the result, and subsequent contracts were concluded, increasing the number of hours per week from twelve in 1988 to sixteen in 1989.

22. The services provided by BIFA include "culturally-sensitive" discharge planning for members of the black and Caribbean inmate communities. This involves counselling, assessments and referrals in respect of accommodation, education (academic and vocational), employment, finances, personal life, substance abuse, and other areas deemed appropriate by the inmate, the institution or BIFA. In addition, BIFA provides assistance to inmates after their discharge from the institution. BIFA also provides assistance to families of inmates, both while the inmates are at the institution and after their discharge. Some of these functions could not be performed by MCS employees, whose focus is the inmate, not his family, and whose role is limited to the inmate's time in jail.

23. Much of the assistance provided by BIFA to the inmates or their families is from within the black community. This is facilitated by networks already established by BIFA. BIFA has also assumed an advocacy role for individuals who are or have been incarcerated. This includes obtain­ing assistance from government agencies and making representations on behalf of those individuals to embassies and tribunals.

24. As part of its discharge planning function, BIFA holds weekly seminars to provide assis­tance to inmates within the Metro East Detention Centre. These seminars identify and explain issues of ethnicity, race and culture so that inmates may make a smoother transition into society upon their release. BIFA also assists the MCS in the development and administration of its pro­grams. This too can involve BIFA in an advocacy role, making representations to the government regarding the needs of the black and Caribbean community.

25. BIFA's activities are reflected in the terms of its most recent contract with MCS. That contract includes these provisions:

Article 2:00 - Agency's Covenants

2:01 The Agency shall provide the Ministry with discharge planning services during the currency of this Agreement. It is understood that such services shall be of a quality acceptable to the Min­istry and be in accordance with the requirements of Schedule A to this Agreement.

2:02 It is understood that the Agency shall provide services to both clients within the Metro Toronto East Detention Centre and within the community.

2:03 The Agency agrees to accept all clients of Caribbean origin referred by the Ministry for dis­charge planning services.

2:08 The Agency Acknowledges that this Agreement is a contract for the purchase of services and is not meant or intended to create an employer-employee relationship.

2:09 For the purpose of this Agreement the Agency will liaise with institutional staff as desig­nated by the Social Program Administrator.

2:11 The Agency will provide Discharge Planning Services for selected Black inmates in the area of accommodation, employment, substance abuse, marital counseling, schooling/skills, train­ing, financial assistance, psychiatric assistance and other areas as specified by the institution.

2:12 The Agency may utilize volunteers to carry out some portion of the service such as intake information, community liaison and other services as agreed upon by the Ministry.

2:13 The Agency may “contract out” some portion of the service, such as intake, community liaison, and other services as agreed upon by the Ministry.

Article 14:00 - Not Exclusive

14:01 The Ministry has the right to grant rights privileges of the same or of a similar nature as the pres[ent] Agreement to any person, firm, corporation, or agency with restriction whatso­ever.

Schedule A referred to in Article 2:01 reads as follows:

SCHEDULE A

DISCHARGE PLANNING

The Agency will provide programme consultation in the form of discharge planning services to the Metro Toronto East Detention Centre and it will be responsible for implementing, evaluat­ing and monitoring a discharge planning programme that will be made available to inmates from the West Indian or Black community.

The Agency will be responsible for seeking out all inmates eligible for or in need of discharge planning assistance. Referrals may be made to the Discharge Planning Co-ordinator by the Metro Toronto East Detention Centre staff and by the community i.e. spouses, probation and parole, etc., or the inmates themselves.

The Agency also will be responsible for designing and operating special need programmes for West Indian/Black inmates in order to assist them in their re-integration to the community. Pro­fessionals and other members from the community with expertise in the area of Discharge Plan­ning will be recruited by the Agency as non-paid volunteers to assist with Discharge Planning for these inmates.

The Agency will assist inmates on a one to one basis through assessments and referrals by pro­viding them with Discharge Planning Services in the areas of accommodation, employment, sub­stance abuse treatment programmes, education, vocational assessment, training and counsel­ling, financial assistance, personal counselling, and any other areas deemed appropriate by the institution and the Agency.

This description is quite flexible, and, in practice BIFA does whatever it considers useful to help inmates cope with the prison environment or facilitate their successful return to the community.

26. As the contract provides, BIFA may use either volunteers or employees for its functions in such combination as it considers appropriate; moreover, BIFA is empowered to "contract out" certain portions of its "work" [Article 2:03]. However, the contract itself cannot be assigned. BIFA provides periodic reports, insurance coverage, and undertakes to maintain confidentiality. The contracts are for a one-year term, terminable on notice, and the Ministry reserves the right to grant rights of the same or similar nature to others. If MCS wants to involve others in the kind of work BIFA is doing, MCS is free to do so; BIFA does not have the exclusive right to perform work of this kind.

27. It is difficult to determine how many hours are spent by BIFA workers inside the insti­tution and how many hours are spent outside, doing follow-up work, establishing contacts in the community, and so on. Ms. Folkes estimated that 40% of BIFA's work is done on the inside and 60% is in the community - but these are only estimates. There will be considerable variability from week to week, depending upon the number of BIFA workers involved and the other demands on their time. The BIFA workers come and go as the needs require and their time permits. They do not have a fixed agenda, except as is necessary to facilitate their entry and exit from a secure facil­ity.

28. As we have already mentioned, one of the strengths of the arrangement - and an impor­tant difference from what MCS officers do - is that BIFA can make contact in the institution and provide continued service when the inmate is released back into the community. BIFA is able to draw upon resources and assist inmates in ways which are simply not open to MCS employees. From an inmate's perspective, BIFA is not part of "the system", but rather has its own indepen­dent roots in the black community, and is a self-help organization for inmates themselves. Ms. Folkes and her workers do not have formal social work or academic credentials; however, they are able to approach inmates in a non-threatening way, engender trust, and engage in mediation and "counselling" in ways which may not be open to institutional professionals. At the very least, there is something to be said for experience "in the trenches", garnered from the inmate's point of view.

29. The BIFA contract (as augmented by whatever voluntary activities are involved) is the only bundle of services specifically targeted to the needs of black inmates. No similar "program"

for black inmates has ever been provided by MCS at the Metro East Detention Centre, or else­where. In this respect, the BIFA arrangement is unique.

30. On the other hand, the BIFA agreement is not the only institutional recognition that inmates have needs specific to their particular language, culture or environment. English as a sec­ond language programs address the deficiencies of inmates from foreign language groups. There is a special "Francophone unit" attached to the Ottawa-Carleton Detention Centre, which is described in this agreed statement of fact:

FURTHER AGREED STATEMENT OF FACT

1. The Ministry of Correctional Services operates the Francophone Treatment Unit ("the Unit") at the Ottawa-Carleton Detention Centre. The Unit has been operating since March of 1990.

2. The Unit is a treatment unit designed to meet the needs of members of the Francophone inmate population in need of assistance with respect to alcohol and substance abuse. It offers services entirely in the French language and with a focus on the specific cultural and societal background of the francophone inmate.

3. The Unit is staffed by nine persons each of whom is an employee of the ministry. There are S Correctional Officers, a Psychologist, a Psychometrist, a Social Worker and a Nurse.

4. The Unit can house and serve up to 16 inmates or residents at one time. The Unit provides each resident with a three-month program.

5. The Unit is open to all inmates of a Francophone background across the province who have been sentenced and who are appropriately classified for the Unit. An inmate can come to the Unit at any point during his sentence. An inmate can either request admission to the program or be referred to it. Inmates must meet minimum security requirements. Thus medium, maximum and remand inmates are excluded from the program.

6. The Psychometrist operates a number of programs for the residents such as drug and alcohol counselling (individual and group). The Social worker conducts a mutual aid program which involves discussion with inmates which includes discussion of anger management, life-skills, family and domestic violence and discharge planning. Such discussion is not a treatment pro­gram. Each program is operated in French and designed to take into account issues particular to the francophone culture and background of the residents.

7. Discharge planning work with the residents is done by the social worker with assistance from the correctional officers. The Unit operates on a case management procedure with respect to discharge planning meaning that each resident begins a discharge planning program from the date they arrive in the Unit.

8. The discharge planning is done on a one to one basis and through groups. The precise nature of the planning offered varies from resident to resident and depends on the stage of sentence at which the resident enters the Unit.

9. When involved in discharge planning with a resident who is preparing for re-entry into society at the end of his stay in the Unit, Ministry staff will be involved in direct dealing with a variety of community agencies and services to prepare the resident for discharge. For example, staff will be in direct contact with halfway houses or group homes such as Maison Fraternite (a franco­phone only home), Serenity Renewal and a number of homes in Quebec in order to ensure that the resident will have housing upon his release. Ministry staff will also set up contact with agen­cies such as the John Howard Society or Catholic Family Services. In addition Ministry staff fre­quently have direct contact with Cite Collegial, a francophone community college, to make arrangements for continuing education for residents. Ministry staff will also contact employment services such as a Canada Employment Centre, Programme Avnir or the Futures Program and, very occasionally, will have direct contact with potential employers, identified by the inmate, to assist the resident in finding employment upon discharge. Ministry staff will also have contact with a number of treatment programs to make arrangements for the resident to continue treat­ment begun in the Unit for alcohol and substance abuse. When the resident will be returning to a community at a distance from the Centre, the contacts will normally be made through an inter­vening agency or correctional institution.

10. Staff follow up on the progress of the resident after the resident has left the Unit, is often done through a written contract by which the resident agrees to adhere to certain particular con­ditions upon their discharge.

11. Follow up will occur in a number of ways. There is often follow up which does not directly involve the resident where there will be a meeting between the social worker and an agency, such as a group home or treatment program, to which most of these inmates are assigned, to advise the agency as to the program followed by the resident in the Unit and the resident's pro­gress on such program and to establish or discuss the plan of action to follow such program.

12. While residents are at liberty to call the institution for advice, the Ministry has no jurisdic­tion over the inmates once they have left the institution. There will often be telephone contact between staff and the resident initiated by the resident when the resident confronts problems after his return to the community. Depending on the nature of the problem, the resident may be counselled as to how to attempt to resolve the problem on his own, or direct advice and assis­tance may be offered. The nature of the problems encountered ranges from the routine (how to obtain work boots needed for a particular job or bus tickets to get to an interview) to the quite serious (difficulties with relationships at home with a spouse where the spouse may be actively using alcohol or drugs).

13. Staff may also be alerted to problems by agencies (such as a halfway house) with whom the resident is now dealing. On rare occasions, where the nature of problems encountered so war­rants, a direct meeting between staff and resident may be held. Such meetings are very occa­sional and are unstructured. On such occasions the meeting will involve the intermediary agency with whom the residents is now dealing.

14. Most inmates are sent from the francophone Unit to a halfway house called Decision House. Decision House has no drug and alcohol program. When an inmate is given a temporary absence pass to Decision House, the Ministry staff write as a condition of that privilege the pro­gram that they want the inmate to participate in. Decision House staff arrange for treatment programs from community agencies like the Royal Ottawa Hospital. The arrangements are made by non-Ministry staff. Ministry staff then receive a monthly report from the halfway house outlining the inmates participation in the said program(s). Thus, while there is follow-up, in most cases it occurs as described above while the inmate is still serving his sentence.

15. Any work involving family members at the institution occurs while the inmate is still incar­cerated. Any follow-up at the halfway house is with staff of that facility and not with Ministry staff.

16. In addition, penal institutions in the North try to cope with the special circumstances of native inmates - although, of course, many of their problems (for example, substance abuse) are common for all inmates. According to Mr. Birks, the Chief of Social Work Services for the MCS, the local community organizations have been involved in some settings, and efforts have been made to recruit native employees who may be better able to relate to and address native needs. Thus, while there are no other contracts like the one with BIFA targeted for black inmates (at least none brought to the Board's attention), some MCS programs do have a cultural, ethnic or regional focus, some services have a cultural component, and other local community organizations have been drawn into the rehabilitative process.

The St. Leonard's Society Contract

32. The St. Leonard's Society of Metropolitan Toronto ("SLS") is a non-profit organization providing half-way houses and counselling services to inmates of federal penitentiaries. SLS also provides some counselling services to inmates currently incarcerated within provincial institutions. Its objectives include this one:

"To follow Christian teaching by the assistance, education and rehabilitation of juvenile and adult offenders and other needy offenders and to promote their integration and establishment in society".

33. Frank Sheward, the managing director of SLS, testified that the SLS' approach to serv­ing inmates grew out of its experience in half-way houses, which remain its principal focus. The counselling, employment assistance, life-style training, and so on, were ancillary services in sup­port of the broader objective of changing the residents' goals and maladaptive life-styles.

34. It was this experience with the half-way house residents that drew SLS into counselling activities. SLS workers were struck by the constant correlation between criminality and addiction, and that made SLS conclude that crime was itself a kind of "addiction" - a repetitive pattern of destructive behaviour which generated its own "high" or "psychological reward", and thus was dif­ficult for the ex-inmate to break. According to Mr. Sheward, this analysis of crime as an "addic­tion" makes the SLS approach unique. However, Mr. Sheward himself is no stranger to addiction counselling. He has worked for the Alcohol and Drug Addiction Research Foundation, the John Howard Society, and the Armed Services.

35. Like BIFA, the St. Leonard's Society was drawn into a more formal contractual arrangement with MCS as a result of its volunteer work in federal and provincial prisons, and its involvement with post-release agencies. An SLS worker was regularly in the provincial jails to see federal parole violators, and over time other inmates asked to see her. She responded, and eventu­ally the potential value of her work was recognized by MCS, which approached SLS to seek its assistance on a more formal basis.

36. SLS sees the "criminal addiction process" as a progressive one, drawing the offender into ever more serious and destructive behaviour, and moving him, inexorably, from provincial offences and institutions, into more serious crimes and federal incarceration. Since SLS was already heavily engaged in consultation in federal prisons, it welcomed the opportunity to move "downstream" into the provincial system where it was believed the prisoners originated, and where they might respond positively to early intervention. As in the case of BIFA, the objectives of SLS overlap with those of MCS.

37. The SLS program provided by its contract with MCS is a free-standing one - that is, it does not involve any systematic or regular liaison with other institutional counselling arrange­ments. There is no "interface" with correctional officers. There is a global report on the number of inmates seen, the number of sessions held, and the number of contact hours, but there is no shar­ing of its counselling role. Inmates approach SLS workers on the range, and indicate their desire for assistance with their substance abuse problems. According to Mr. Sheward, referrals come by word of mouth or inmate initiative. There was no routine referral from MCS employees - although SLS workers would not be in a position to know if the inmates were responding to recommenda­tions made to them by MCS employees.

38. The SLS program is strictly voluntary and its focus is solely on personal recovery. SLS provides no referral letters, or recommendations upon which the inmate may rely in court or for institutional purposes. As Mr. Sheward put it: the objective is recovery, not earning "brownie points"; and if SLS began to offer reference letters, inmates would enrol for the wrong reasons.

39. On the other hand, SLS' general objectives are consistent with those of MCS: recovery from alcohol, drug or criminal addictions; rehabilitation; positive personal change; and reintegra­tion into society. Like BIFA - but unlike MCS - SLS is able to follow its "clients" into the commu­nity, through its own half-way houses and its own network of contacts. As in the case of BIFA, MCS provides only a small proportion of SLS' overall funding/revenue, with the bulk of its funds and activities linked to the Federal Government. And, like BIFA, its services are available to both federal and provincial inmates, without rigid analysis of contract hours.

40. SLS has eight or nine employees, all of whom have formal training in social work, certi­fication in addiction counselling or comparable experience in the field. None of this expertise was derived from MCS; and, in fact, it was MCS' recognition of this pool of experience and a possible fresh approach which prompted MCS to formalize the contractual arrangements. The relationship evolved from one in which SLS provided a bundle of services on a voluntary basis, to one in which SLS provided the same kind of service, but received a subsidy. There was no basic change in the character of the work once it became subsidized. While in the provincial jails, the SLS workers perform a variety of functions, some of which are associated with the MCS contract, some of which are associated with federal contracts, and some of which remain volunteer work. There is no rigid separation or compartmentalization of these functions.

41. Susan Bouchard was the only SLS employee involved with the contract with MCS. Ms. Bouchard has a Bachelor's Degree in Social Work, is a certified addiction counsellor, and has about twelve years' experience in the field. She divided her time between the half-way house and the detention centre, with about sixty per cent of her effort devoted to activities at the house and forty per cent involved with the sixteen hours (and ancillary volunteer work) specified in the con­tract. Apparently, SLS subsequently concluded another contract with a further sixteen-month com­ponent so that Ms. Bouchard began to spend thirty-two hours in connection with those contracts, at different institutions, and about eight hours in the half-way house.

42. SLS is not involved in "Discharge Planning" as such. It is engaged in a specific program involving drug and alcohol rehabilitation which (it is said) has a novel perspective or approach. But, to the extent that a successful transition into the community involves recovery from these addictions, or establishing connections with outside help from other organizations (such as AA), the goals of SLS are consistent with those of MCS and coping with addictions will be an element of any discharge plan. However, SLS (unlike MCS) can be involved in the execution of the plan, and the follow-up of inmates in the community in a way that MCS employees cannot.

43. As of the completion of the hearings, SLS had no one working in the provincial jails. There was still a contract with MCS but SLS was looking for an employee to add to its staff to do that work (among other things).

The Contract with Community Liaison Services

44. The organization known as "Community Liaison Services" did not participate in the hearing. The evidence concerning its activity is derived from the terms of its contract with MCS and the testimony of Don Michael, an MCS official.

45. Discharge planning is a function performed across the corrections system, because, eventually, all inmates are released and MCS is obliged to do what it can to facilitate their re-entry into the community. These planning functions are performed by social workers and rehabilitation officers, who can organize referrals and may make contact with agencies in the community (e.g., John Howard Society) that can provide direct help, in areas such as accommodation, employment, or addiction counselling. However, the MCS employees do not follow the inmate into the commu­nity, nor does MCS have the same kind of community roots that an organization like BIFA, SLS, or CLS would have. The MCS employees are not involved in post-release services; moreover, because the inmate may be leaving a particular institution for an entirely different community, there are real limitations to the amount of direct liaison an MCS employee can do. We were told that they do not make appointments because ex-inmates often fail to follow through, so the dis­charge "plan" may in fact be limited to providing a list of community contacts, with the initiative remaining with the ex-inmate. According to Mr. Michael, client service can be better provided by community agencies with a base in the area where the ex-inmate expects to live. They can get to know the client while he is in the institution, then work with him, post-release, to help resolve any problems he might encounter.

46. The contract with Community Liaison Services was described as a "facilitator agree­ment" involving Shirley Ferguson and a group of part-time workers, student placements and vol­unteers whom Ms. Ferguson assembles and supervises. Ms. Ferguson lives in the Scarborough community and has developed a network of contacts with various local agencies. Exhibit 19 lists the "community resources" with which Ms. Ferguson maintains contact. Areas include: housing, employment, education, addiction, counselling (personal, family, culturally-specific), life-styles, clothing, applications (government bureaucracies) and miscellaneous (Revenue Canada, family benefits, John Howard Society, Salvation Army, External Affairs - Passport Office, etc.). After each general heading, there is a list of resources as diverse as welding schools, adult training pro­grams, learning centres, centres for Spanish-speaking persons, the Anishnabbe Health Centre and "Cocaine Anonymous". Ms. Ferguson and her group are intermediaries. Their participation in the development of a discharge plan is linked to their execution of that plan post-release, and that involves channelling the client into the community programs that are available and appropriate.

47. The agreement with Community Liaison Services contains these provisions:

Article 2:00 - Facilitator's Covenants

2:01 The Facilitator shall provide the Ministry with programme consultation and discharge plan­ning services during the currency of this Agreement. It is understood that such services shall be of a quality acceptable to the Ministry and be in accordance with the requirements of Schedules A-I and A-2 to this Agreement.

2:04 The Facilitator shall provide discharge planning services both within the Metro Toronto East Detention Centre and in the community.

2:06 For the purposes of this Agreement, the Facilitator will liaise with institutional staff as des­ignated by the Social Programs Administrator.

2:07 The Facilitator shall provide a maximum of thirty-five hours (35) discharge planning service per week.

2:11 The Facilitator will provide Discharge Planning for selected inmates in the areas of accom­modation, employment institutional behaviour for parole purposes, substance abuse, marital counselling, schooling/skills training, financial assistance, psychiatric assistance and other areas as specified by the Ministry.

2:12 The Facilitator may utilize volunteers to carry out some portion of the service such as intake information, community liaison and other services as agreed upon by the Ministry.

2:13 The Facilitator may "contract out" some portion of the service, such as intake, community liaison, and other services as agreed upon by the Ministry.

Article 11:00 - Not Exclusive

11:01 The Ministry has the right to grant rights and privileges of the same or of a similar nature as the present Agreement to any person, firm, agency, partnership, or corporation without restriction whatsoever.

Schedule A to the contract is a proposal from Ms. Ferguson which has been incorporated by refer­ence:

PROPOSAL

METHODOLOGY

Interview inmates prior to release to determine need for assistance in formulating post release plans.

EDUCATION

• Local school boards

• Alternative schools

• Community Colleges

• Ministry of Colleges and Universities.

SELF HELP GROUPS

• Alcoholics Anonymous

• Narcotics Anonymous

• Ex offenders Anonymous

• Gay community Centre.

As in the case of BIFA and SLS, the contract with Community Liaison Services contemplates con­fidentiality, requires insurance and involves the limited use of MCS facilities.

48. The fee prescribed in the contract is $65,000.00 which Ms. Ferguson is to allocate among herself, her fellow workers, and the costs of providing the prescribed services. The esti­mated budget attached to the contract indicates that eighty-five per cent of the funds are expended on salaries and benefits for the program coordinator, three intake workers, and a resource worker (five workers in all).

General Information

49. Apart from the specific contracts under review, the witnesses provided the Board with some general information about MCS programs and practices. In reviewing and summarizing this evidence, we have tried to avoid the labels which the witnesses placed on particular activities, or the "social work jargon" that occasionally surfaced. We do not think that these labels are particu­larly helpful in resolving the issues that we must decide.

50. From the time an inmate enters an institution until his eventual release, there is regular contact with MCS employees for the purpose of assessment and referral to appropriate people or programs that may be of assistance to his rehabilitation. This kind of communication takes a vari­ety of forms and will try to focus on the particular inmate's needs and problems. Counselling may touch on personal problems at home, emotional or psychological difficulties, addiction to various substances (more often than not in combination with one another), or anything else that may have contributed to the inmate's inappropriate behaviour or might discourage its repetition. All of these "programs" - be they social, recreational, educational, self-help or therapeutic - fall within the gen­eral umbrella of the goals listed in section 1 of the Ministry of Correctional Services Act (supra).

51. Some of the correctional officers, social workers or other "helping" professionals use "models" or techniques of which they may be advocates. They are adherents to particular "schools" which they claim are superior in analytical power or operational effectiveness. Other officers are more eclectic in their approach. However, according to Randy Scott, the Acting Chief of Social Work at the Guelph Correctional Centre (and an OPSEU witness), the "hands-on coun­selling is pretty much the same regardless of where you start".

52. It is recognized that inmates are incarcerated because of inappropriate and illegal behaviour, and that rehabilitation ultimately involves personal changes which make a recurrence less likely. Since inmates are only in custody for a limited period of time, a key objective of all of these approaches is to motivate the client so that he will pursue "treatment" after his release. For example, recovery from an addiction requires continuous efforts which must be maintained after the inmate leaves the institution or conditions may develop which will bring him back.

53. According to Mr. Scott, who was a discharge planner for about a year, discharge plan­ning, as such, does not involve "counselling" - merely the provision of information. But it is not clear where one ends and the other begins, since, presumably, the information involves options and one of the functions of a discharge planner is to set out and encourage sensible choices. Be that as it may, Mr. Scott distinguished "counselling" from "discharge planning", and he main­tained that parole officers don't do much counselling either. They are too preoccupied with moni­toring the inmate's compliance with his conditions of release.

54. All of the witnesses described in-house MCS programs provided by MCS employees which (to an outsider at least) seem similar to those provided by the subcontractors. We have already mentioned the services tailored by MCS to meet the needs of Francophone or native inmates. They resemble the efforts of BIFA to meet the needs of black inmates. In addition, MCS social workers or correction officers are involved in alcohol/drug counselling, which resembles - in goals and techniques if not in perspective or "model" - the activities of SLS. There are also pro­grams concerning literacy, life-skills, vocational training and so on. The key difference is that the subcontractors are linked to the community, can follow the inmate there, and can provide continu­ing assistance, while the MCS employees do not. The MCS employees are prohibited from any contact with the inmate after his release, and, on the evidence before us, the probation-parole offi­cers do not perform functions of this kind. This restriction is a matter of MCS policy.

55. It is evident from the evidence before us that, quite apart from the particular subcon­tracts with which we are here concerned, subcontracting is widely used by MCS to supplement the services provided by its own employees, or meet the needs of particular inmate groups. The involvement of outside organizations allows MCS to tap experience and expertise not readily avail­able within its own employee complement, or which cannot be accessed because existing MCS employees have other priorities. Mr. Michael testified that in some cases his staff are just too busy with their own work, and if the needs of inmates are to be met, subcontractors must be engaged. In other cases, the subcontractor provides a different perspective, expertise, or an outsider's view of things.

56. Subcontracts allow for experimentation, the testing of new rehabilitation models, or the evaluation of techniques developed outside MCS itself which may later be adapted for use within the organization. It permits access to acknowledged experts in the field, or professionals who would not be interested in government service, but whose talent can be tapped on a part-time or periodic basis. As Randy Scott put it: "It gives us flexibility ... we could not hire their expertise". For example, Mr. Scott testified that a professional social worker attached to a Hamilton hospital conducts an "anger group" which was very similar to one conducted by an MCS psychologist. In that case there is not much doubt that "the work" is pretty much the same.

57. Mr. Scott testified that experienced professionals like the one from Hamilton provide valuable adjunct services that would not otherwise have been available to the rehabilitation team on a longer term basis. Money can sometimes be found for "contract" work of this kind which is not available to hire more civil servants, and sometimes workers are available on this basis who have little interest in employment in the civil service. And sometimes, the particular institution simply does not have that component on staff, or its staff are too busy doing other things.

58. It should be noted, therefore, that the motive for the subcontracts is not necessarily economic or to obtain services more cheaply, but may reflect a desire to engage different people and different perspectives - albeit to do "work" which is generically similar or directed to estab­lished MCS goals. Mr. Michael testified that even if the "salary dollars" were available (which they are not these days), MCS could not replicate the services rendered by these professionals or com­munity-based agencies. In his submission, there is an independent value to drawing community groups like BIFA or the St. Leonard's Society into the rehabilitative process because they repre­sent the community to which the inmate is returning and can provide service which MCS cannot -in part because they are not regarded as part of "the system".

59. To illustrate the wide variety of subcontracting arrangements which arise in other areas, we might note that the MCS chaplaincy program involves a clergyman who is a civil servant employed by MCS, but, in addition, there are clergymen drawn from outside organizations who are engaged and provide pastoral services on a contract basis. In one sense, the "work" is the same - a clergyman is a clergyman and pastoral services all have a religious focus. But from the commu­nicant's point of view, the work of a priest is different from that of a rabbi, and the work of one cannot substitute for the other. And, as anyone who has encountered an exemplary "teacher" or "counsellor" will know, that label does not describe the process, and there are vast differences in approach or success.

60. When one closely examines the facts, it becomes much more difficult to place them in the neat pigeon holes envisaged by the formula OPSEU urges upon us. That formula sounds sim­ple enough. The Crown performs various kinds of "work". The performance of that "work" is a function of the Crown. If the opportunity to do "that work" is transferred to another employer, the OPSEU bargaining rights follow and attach to the employees who do the "work". To deter­mine what "the work" belonging to OPSEU is (i.e. the function which forms "part" of the Crown's "undertaking"), one must merely look to see whether civil servants somewhere are doing "work" of that kind: tree planting, salting roads, and so on. If so, then the performance of that work by anyone else constitutes the acquisition of a Crown function (defined as "work" similar to that which Crown employees do) which constitutes part of the Crown's "undertaking" for the pur­poses of the Crown Transfers Act.

61. But in trying to state the evidence fairly, these simple categories break down, making it difficult to use language that does not embody a legal conclusion. From OPSEU's perspective, "counselling is counselling" and "discharge planning is discharge planning", whether it is done by a social worker or a culturally-sensitive, experienced amateur. Mr. Michael can honestly say that "discharge planning", as such, wasn't done at the Metro East Detention Centre prior to the sub-contracts, and BIFA's role is unique, but discharge planning was done elsewhere and the label begs the question of what "discharge planning" is. If it involves assessing inmate needs or prob­lems, outlining post-release options and counselling sensible choices, then a wide variety of MCS activities are devoted to these goals, whether or not MCS labels the process "discharge planning". Similarly, even though what BIFA does is unique in some respects, it is not easy to differentiate these "Black" cultural initiatives from programs directed to Francophones or native persons. These programs have a distinct racial or cultural focus, just as the contract with BIFA does; and, in any case, it would demean the role of correctional officers to suggest that they ignore these inmate characteristics or do not incorporate a sensitivity to race and culture into their own rehabilitative approach. Whether they are able to do so as effectively as the outsiders can, is not for us to decide. The point is: it is difficult to distinguish what they do from what BIFA or SLS do inside the jails -although BIFA and SLS may have a different viewpoint or even be able to do "the work" better in some respects.

62. Just to round out the picture, we should reiterate that in provincial correctional institu­tions there is a whole host of volunteers providing counselling, discharge services, pastoral advice, substance abuse services (e.g., AA, NA, CA), help with future employment and accommodation, and so on. Some of these volunteers come from charitable organizations or agencies with a particu­lar focus - like the Native Canadian Centre or the John Howard Society. These agencies may even receive funding from one government source or another, even though they have no specific con­tractual relationship with the MCS like the present respondents do. Their "good works" receive a social subsidy, and the individuals working for these transfer agencies either as volunteers or on salary perform "work" in provincial correctional institutions which is similar to that which civil ser­vants do or could do, and might have to do if there was no one else to do it. These outsiders are doing this work (and are sometimes paid) even though there is no specific contract with the MCS, and if they receive some sort of subsidy from "government", it does not have the same fee for ser­vice quality as the funds provided to the subcontractors here. As an illustration: BIFA has received funds from the Human Rights Commission and the Ministry of Culture & Recreation.

63. Accordingly, to the extent that the test for a "Crown Transfer" is whether there are workers doing work which is similar to that which civil servants do or could do, there are literally thousands of workers who meet that test. Anytime the Crown engages an outside organization (a law firm, for example) to do "work" which could be done by Crown employees, it can be said that the Crown Transfers Act applies to that organization and its employees, who would perforce be represented by OPSEU when doing that work.

64. Having outlined the facts, we now turn to the legal and policy considerations which affect our decision.

[Paragraphs 65 to 208 have been omitted, see Parnell Foods Limited, [1992] OLRB Rep. Dec. 1164 at paragraphs 61 to 204: Editor]

Decision

209. In each of the contracts under review, the respondent agency and its employees perform "work" or "functions" similar to those found within the undertaking managed by MCS; moreover, those functions are undertaken within the statutory framework governing the operations of MCS, at an institution maintained by MCS, and under the over-riding control of MCS. The work is "dif­ferent" to the extent that it may involve a different focus, different techniques, and different coun­sellors, whose approach may not be quite the same as MCS employees and who may have more freedom of action than MCS employees (in particular, the ability to develop contracts and do "fol­low-up" in the outside community). In BIFA's case, it is "different" to the extent that the target group - black inmates - have characteristics which distinguish them from other inmates, the coun­selling agency shares those characteristics, and that may influence the way in which service is pro­vided. Nevertheless, if the functional test were controlling, it would be difficult to say, for exam­ple, that the counselling done by BIFA workers was analytically different from that done by MCS employees, or that the addiction counselling done by the St. Leonard's Society is materially differ­ent from that available elsewhere in MCS. No doubt the persons involved are different; but that does not change the nature of their "work" or the fact that the "functions" are generically similar, and similarly undertaken under the umbrella of Ministry of Correctional Services Act. In addition, the Crown closely controls the environment within which the functions are performed just as it does for its own employees, and in effect provides the "clients" who are the object of the respon­dents' attention - although on the evidence before us it is the inmate who effectively chooses whether or not to avail himself of the agency's services. But, in that regard, the situation may not be much different from the optional programs or opportunities provided by MCS's own employ­ees.

210. However, for the reasons outlined at length, we do not think that the "functional" approach is the correct, or determinative one. Rather, we think it is also appropriate to consider whether something tangible has been transferred from the Crown - equipment, know-how, employees, etc. - which permits the transferee to carry on the functions formerly done by the Crown: whether some portion of the Crown's organization, operation or delivery system has been transferred to the respondents, thereby permitting them to carry out the functions prescribed in the contract. And, in the instant case, not only are the functions (or "work") somewhat different, but the means to perform it resides entirely in the subcontractor's own organization, and is not trace­able to the Crown at all.

211. The subcontractor is using its own organization or "undertaking" to supply services to the specifications of the Crown; it has not acquired "part" of the Crown's "undertaking" within the meaning of the Crown Transfers Act. This is not a case like Beechgrove where an institution was "privatized", nor like Regional Municipality of Waterloo where an administrative unit, func­tions and a group of employees with accumulated skills was transferred to another organization cov­ered by the Labour Relations Act. Here the identity of the work is debatable; the body of work is narrow, fragmented and discreet; it is unclear whether any Crown employee actually "lost" this particular work; no Crown employee was privatized; and the organizational abilities, skill, exper­tise, experience and know-how necessary to do the work already resided in the respondent agencies' own undertakings which are operational independently of the Crown or these contracts. The inde­pendence of BIFA, for example, is underlined by the fact that it was performing similar functions on a volunteer basis, in prisons, with its own organization, before the particular subcontract which, it is said, constitute a Crown Transfer. BIFA does not derive its organization, undertaking, or employees, from the Crown or from anything that is traceable to the Crown.

212. In this context, it is very difficult to say that these agencies have acquired some severa­ble portion of the Crown's undertaking to which bargaining rights can meaningfully attach. What have they "acquired" other than access to the inmates (which BIFA and the St. Leonard's Society had before) and money for the services they provide? There may be a fine line between providing a venue where services are performed and transferring a "part" of MCS' "undertaking" to the con­trol of someone else; however, the respondents in this case do not approach that line. The fact that employees may do work in or for a Crown undertaking does not mean that their employer has "acquired" "part" of that Crown undertaking within the meaning of the Crown Transfers Act. A non-exclusive right to counsel inmates is no more a "part" of the "undertaking" within the mean­ing of the Crown Transfers Act than the "right" to repair the plumbing. Both may contribute to the inmate's welfare but neither, in itself, is a "part" of the Crown's undertaking to which bargaining rights sensibly attach.

213. In the circumstances of this case (following the Supreme Court's analysis in Bibeault) we are not persuaded that the right to perform particular services (but not exclusively) created by the subcontract is a "part" of the Crown's "undertaking" to which bargaining rights attach or which, on execution of the contract, creates a successorship - anymore than would thousands of other contracts for goods and services which are used in conjunction with one program or another. The fact that Crown employees, somewhere, may perform similar work is not determinative if the entity providing the service to the Crown does not acquire the means to do so from the Crown. If the functions/work are accomplished with its own employees and organization (i.e. its own undertaking), there is no acquisition of the Crown's undertaking and, therefore, no successorship. The situation might well be different if location was intrinsic to the employer's organizational abil­ity to deliver a service (rather than just the place employees worked), or if the employer acquired the use of some critical asset, or if counsellors found themselves "privatized" or left the Crown's employ while continuing to perform the same functions. In those circumstances, "something" would be traceable to the Crown other than a bare right to do work to the Crown's prescription, and it might be easier to say that the employer has "acquired" or taken over some pre-existing "part" of the Crown's undertaking. But those are not the facts in these cases.

214. In each of the subcontracting arrangements under review, the respondents have relied exclusively upon their own undertakings which existed independently of the Crown (before and after the subject contracts) and which did not derive the means to perform the contracts from the Crown. In our view, there has been no "transfer" of "part" of the Crown's "undertaking" to any of the respondents, and therefore no successorship or extension of OPSEU's bargaining rights to the respondents' employees.

215. For these reasons, these applications are dismissed, and it is unnecessary to consider how a bargaining unit might be defined under section 4 of the Crown Transfers Act or otherwise.

216. The Board notes that the application with respect to "Streetlink" was withdrawn.

DECISION OF BOARD MEMBER D.A. PATTERSON; January 14, 1993

1. 1 concur with the majority decision of the Board and offer this addendum to the deci­sion. In light of 2 previous decisions of this Board, KBM Forestry Consultants Inc. and Charmaine's Janitorial Services and expansion of the theory of the first 2 cases in a 3rd case called Dunning Paving Limited, I feel obligated to offer this addendum to this majority decision.

2. It is this Board Member's position that the fate of each case which comes before this Board is determined by its particular facts. I offer this addendum because of the facts in this partic­ular case and I make no judgement or comments on the previously mentioned cases.

3. I would however make the following observation about this case and labour relations realities underlying it.

4. If I felt there was a transfer of the undertaking by the Crown, then the applicant would succeed, but in this case I don't believe there was a transfer of this "undertaking". The work OPSEU claims within their bargaining unit is work I believe they never did. As the majority deci­sion succinctly puts the case, the service provided and contracted by the Ministry of Correctional Services or Crown does not interfere or take away from the "undertaking" of the Crown or the Ministry of Correctional Services. These agencies are providing a specialized service to inmates, whether it be of a cultural nature or ethnic or of substance abuse related programs. In this situation the end product is not a gadget made or a meal served but rather it is a service provided to quite frankly fill the void which Ministry of Correctional Services cannot or could not fill.

5. The success of these agencies and the service they provide is somewhat unique and totally voluntary. The inmate makes the crucial decision, whether to accept or solicit the assistance or guidance or rehabilitation work of these agencies. The same inmate is fully aware of the services provided by Ministry of correctional Services and the Crown, so actually the inmate has at his/her disposal the convenience of options of who to seek help or assistance from. It is not the same ser­vice or "work" provided by Crown employees.

6. I share the majority opinion on the question of the Crown and what it has granted its own employees in terms of rights under the Crown Employees Collective Bargaining Act. I agree the Crown did not intend by amending the Act to give its own employees more rights or freedoms than is presently enjoyed by the private and public sector employees. As a matter of fact, the Crown has restricted its own employees in many areas which would appear unfair to those of us not in the Civil Service, but the Crown has that leeway because it is the arm of the government and carries out the government's wishes.

7. I should also raise the question of similar issues heard and decided in other jurisdictions such as our sister Board, the Ontario Public Service Labour Relations Tribunal, the Canada Labour Relations Board and other Boards of Labour across Canada. The majority decision men­tions a number of cases which have held that bargaining rights attach only to a work function. The consequences of that approach were difficult to sort out from a labour relations point of view, but, in any case, the Supreme Court ruled in the Bibeault case that bargaining rights did not attach to work. In page 63 I quote the court:

"Each undertaking consists of a series of different components which together constitute an operational entity. It goes without saying that one of these components is the work done in the undertaking is also determined by its particular physical, intellectual, human, technical and legal components....

However, the court found that work, by itself, was not a "part" of an undertaking which, if trans­ferred, creates successor rights. The Bibeault case came out of Quebec, however, in Ontario similar cases have been decided in a similar way to this Board.