In OPSEU (Union) and Ministry of Health, (GSB #1942/94), by a decision of Vice-Chair Fisher, dated February 20, 2002, the Grievance Settlement Board addressed a grievance claiming in part, that temporary agency staff should not be used to fill ongoing permanent positions in the Ministry of Health Trillum Drug Plan.
On the facts, the Vice-Chair found:
…this Program routinely uses agency employees to staff its core staffing needs as well as it predictable seasonal needs.
The Ministry is not claiming that there is any economic advantage to using agency employees. Rather the only reasons given as to why the Program uses agency employees over bargaining unit employees is as follows:
1. The Program is limited in the number of classified and unclassified positions that are funded under the “Staffing” line in their budget. However staffing through agencies does not show up on the Staffing line, as it shows up on the “Other Direct Operating Expenses” (“ODOE”) line. To move money from the ODOE line to the Staffing line
requires MBS approval. In other words, this reason has nothing whatsoever to do with actual cost to the Ministry, rather it has to solely with the budgeting process.
On the OPS collective agreement, and the law, the Vice-Chair found:
…there is an implied term in this collective agreement that prohibits the employer from using non-bargaining unit employees to perform bargaining unit work….
…the implied term should be expanded to include a prohibition against using contracted in agency employees [to] perform bargaining unit work that would otherwise be done by classified and/or seasonal unclassified employees…
The Chair noted:
This award is not dealing with the issue of whether or not the Ministry can use agency employees to staff truly temporary positions.
The GSB ordered:
I therefore find that agency employees were performing work of the bargaining unit in the Trillum Drug Program and that the GSB has the jurisdiction to both order the Employer to post classified positions and to cease and desist from staffing seasonal unclassified positions with agency staff.