Public Sector Restructuring John W. Saunders October 17, 2019 2019 - - PowerPoint PPT Presentation

2019 OMAA Fall Workshop

Public Sector Restructuring

John W. Saunders

October 17, 2019

2019 OMAA Fall Workshop

Public Sector Labour Relations Transition Act, 1997

2019 OMAA Fall Workshop

Purpose of PSLRTA

• To facilitate the establishment of effective and

rationalized bargaining unit structures in restructured public sector organizations

• To facilitate collective bargaining following restructuring
• To foster prompt resolution of workplace disputes

following restructuring

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Application of the PSLRTA

• Has applied to the Municipal, Hospital and School

Board sectors since 1997

• Extended to cover a broad range of heath care

restructuring in 2006 under the LHSIA

• s.10(1) of PSLRTA – Cabinet may, by regulation,

extend application of the Act

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Application to Municipal Sector

“This Act applies upon,

a)

the amalgamation of two or more municipalities or two or more local boards;

b)

the dissolution of two or more municipalities and the incorporation of their inhabitants into a new municipality;

c)

the dissolution of two or more local boards and the establishment of a new local board that assumes the powers and authority of the dissolved local boards; or

d)

the dissolution of an upper-tier municipality if, as part of that restructuring, two or more municipalities that form part of the upper-tier municipality for municipal purposes are amalgamated or are dissolved and their inhabitants incorporated into a new municipality.”

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Essential Features

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If PSLRTA applies, Labour Relations Act “sale of business” provisions do not apply

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The entity which performed the services before the integration is the predecessor employer; the entity performing the services afterwards is the successor employer

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Essential Features

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The union representing the bargaining unit(s) before amalgamation acquires bargaining rights at the successor employer

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Any collective agreement that applied to employees of the predecessor employer applies to those employed by the successor employer

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Essential Features

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PSLRTA process determines the description and composition of the bargaining units and the bargaining agents at the successor employer

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PSLRTA provides for the identification of a common grievance and arbitration process pending the finalization

• f a common collective

agreement

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Essential Features

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PSLRTA also provides for the recognition and preservation of the seniority rights of the affected employees

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Essential Features

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PSLRTA does not require that a successor employer hire any of the employees of the predecessor employer PSLRTA cannot be used to unilaterally compel employees of a predecessor employer to transfer to a successor employer

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The Changeover

• Substantive provisions of the PSLRTA take effect on or

after the “Changeover Date”

• Prudent to commence the process well in advance of

the changeover date

• Minimizes and sometimes resolves contentious issues
• Immediately following the merger, all collective agreements
• f a predecessor municipality will continue to apply to those

employed by the successor municipality

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The Changeover

• How many bargaining units will there be for the

amalgamated employer?

• How will those bargaining units be structured?
• Which unions will be a party to the process?
• Will there be a vote?

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The Bargaining Unit

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“…the Board’s approach in these sorts of cases

appears to favour the bargaining unit structure that would result in relatively minimal disruption to the existing labour relations framework provided it is appropriate for the successor employer’s operation.”

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The Bargaining Agent

• Where two or more bargaining agents represent employees

in the new bargaining unit, the issue of representation must be determined by agreement amongst the bargaining agents

• r by secret ballot vote administered by the OLRB
• The determination of the bargaining agent can only formally
• ccur after the changeover date

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The Bargaining Agent

• The OLRB may change which employees are represented

by which bargaining agent or create a larger bargaining unit that includes employees who previously were in different units or previously were unrepresented

• Absent an agreement as to the bargaining agent, the OLRB
• rders a representation vote for each bargaining unit if the

number of units or unit description has changed

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The Bargaining Agent

• If one union represents 80% or more of the employees in the

new bargaining unit, that union will become the bargaining agent and no vote will be held

• If 40% or more of the employees in the new bargaining unit

were non-union employees, then a “No Union” option must be included

• The union that receives more than 50% of the ballots cast is

declared the bargaining agent for all employees in the bargaining unit

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The Collective Agreement

• The parties can agree to apply one of the prior collective

agreements to all employees

• If the parties cannot agree, a “composite” agreement will

apply until a new agreement is negotiated

• Each collective agreement is deemed to form part of a

single collective agreement to which the bargaining agent, the bargaining unit and the successor employer are parties

• Composite agreement operates for one year

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The Collective Agreement

• During the PSLRTA process, the successor employer must

administer several different collective agreements

• Difficult or contentious issues include:
• Harmonizing wages
• Harmonizing job descriptions/positions
• Application of benefits
• Hours of work and overtime thresholds

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The Collective Agreement – Exceptions

• The grievance procedure from the collective agreement

between the successor employer and successful bargaining agent will apply to all employees in the bargaining unit

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The Collective Agreement – Exceptions

• Presumptions re seniority:
• All continuous service with the predecessor is

recognized

• Unit-wide seniority
• Seniority list is “dovetailed”

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OLRB Process

• Labour Relations Specialist (“LRS”)
• Disclosure of all “arguably relevant documents”
• Submissions with full legal argument
• Consultation hearing in front of a Vice-Chair
• After the OLRB makes its decision on bargaining

units, any required votes will be scheduled

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PSLRTA Uncertainties

• Outstanding Grievances
• Not necessarily extinguished
• Dual Employees
• Should they be forced to relinquish one position?
• Are they laid off or is this “frustration?”

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Preparing for a Merger – A Practical Guide

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Create Executive Planning Committee Consult stakeholders, the government and your legal advisors Establish sub-committees and roles Determine the new governance structure Determine the organizational structure Develop a management plan

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Human Resources

• Gather basic employee data
• Demographics: age, salaries, service, seniority
• Employee status: LTD/STD, leaves of absence
• Job classifications and the number of incumbent employees
• Outstanding vacation, overtime
• Outstanding grievances
• Organizational chart with the new departmental structure/policies

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Labour Relations

• Gather information regarding:
• Bargaining units, agents and key contacts
• Collective agreements and any ancillary documents
• Status of collective bargaining
• Settlements and awards
• OLRB applications – e.g. ULPs, certification

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Labour Relations

• Duty to notify bargaining agents of PSLRTA application
• Consider potential union response
• Layoff and job security provisions
• Consultation requirements
• Consider resolution of outstanding grievances

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Other Considerations

• Any outstanding civil litigation
• Human Rights Tribunal of Ontario applications
• Ongoing internal investigations
• File storage and record keeping

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Other Considerations

• Integration of information systems and payroll
• Effect of job security and other collective agreement

language

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Other Considerations – Non-Union Staff

• Termination governed by:
• Employment contract, Employment Standards Act,

common law

• Constructive dismissal  employment contract treated as

terminated by substantial change to a fundamental term

• Change in legal identity of the employer may trigger this

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Cybersecurity Attacks

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Municipalities are at risk of cybersecurity attacks

• Municipalities are increasingly reliant on computer

systems to deliver services as efficiently as possible, giving attackers more opportunity to engage in malicious behavior.

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Municipalities are at risk of cybersecurity attacks

• Municipalities are reliant on computer systems
• Internal operations
• Council agendas
• Processing tax bills
• Hiring letters
• External operations
• Dispatch fire departments
• Communication with public

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2019 OMAA Fall Workshop

Municipalities are at risk of cybersecurity attacks

• Gives attackers more opportunity to engage in malicious

behaviour.

• Attackers are also getting more savvy.
• Ransomware isn't new but its proliferating.

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Municipalities are at risk of cybersecurity attacks

• Hacking community shares information.
• Allows even inexperienced hackers to gain knowledge

and access to very sophisticated attack techniques that are easy to use.

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Municipalities are attractive targets

• Municipalities operate a number of services for which they

accumulate valuable and attractive data that can be resold. They can hold detailed personal information as well as financial information such as credit cards.

• Ex: processing permits, parking tickets, and fees for

swimming lessons

• Even if your municipality doesn’t have much sensitive data,

the possibility that it does makes it attractive target.

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2019 OMAA Fall Workshop

Municipalities are generally vulnerable

• Municipalities, face financial constraints that limit just

how much they can spend on protecting themselves from attacks

• I.T. is often not a priority
• Are I.T. Managers paid enough to attract the best

candidates?

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Municipalities are generally vulnerable

• Municipalities often struggle to keep pace with

technology refresh cycles, which are growing shorter each year.

• Hackers understand this
• Hackers exploit this

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There are two main types of cybersecurity attacks

1.

Ransomware attacks: where the hacker shuts down access to key computer systems such as individual files, programs, or even servers and networks.

• Encryption is accompanied by a message demanding

payment in exchange for restoring access

• Payment is generally demanded in bit coin
• “Shake down” to get money

2019 OMAA Fall Workshop

There are two main types of cybersecurity attacks

2.

Data extraction attacks: where the hacker breaches an organization’s network to extract data.

• Blackmail
• Espionage
• Insider trading
• Competition advantage
• Selling the data to black market

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Public institutions are targeting in ransomware attacks

• The New York Times reported that over 40

municipalities in the United States have been hit with ransomware attacks already this year, including a simultaneous attack on over 20 municipalities in Texas.

• Municipalities in Canada are also emerging as targets –

with numerous recent attacks on Ontario municipalities,

• nly some of which have been covered in the news.

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Two primary types of “hacking”

1.

Phishing attack: occurs when an attacker, often masquerading as a trusted entity, dupes a victim into

• pening a malicious link.
• This loads a program onto your system
• Or gives the hacker login credentials

2.

Direct intrusion: occurs when an attacker finds a network vulnerability and exploits it to gain access into the network.

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Two things municipalities should ask themselves

1.

What steps can we take to protect against the risk of a cyber attack?

2.

Are we prepared to respond to cyber attacks?

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Key measures that lower your risk

• Limiting the users who have access to sensitive data
• Two-factor authentication for users [security question]
• An ongoing information security awareness program that

promotes strong phishing awareness

• Users are not running as administrative users
• Can’t change the system
• Ensure anti-viral software is up to date
• In place at end of points in system (work stations)

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Key measures that lower your risk

• Back-up systems in place
• Allows for files to be restored
• Ensure fire wall restrict access to back-up systems
• Cloud based back-ups might not work
• Don’t allow macros to run automatically
• Web filters
• Screens for malicious websites

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Key measures that lower your risk

• Hire Info & Security Analysts
• Support people
• Use them to answer questions
• Pay appropriate amount

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Are you prepared to respond to a cyber attack?

• A prepared municipality has:
• An incident response protocol that provides for timely and decisive

decision-making.

• Test back-up systems
• How long to get system up and running?
• Can you reimage the computers?

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Are you prepared to respond to a cyber attack?

• Assess its cybersecurity insurance needs and purchase appropriate

levels of insurance coverage.

• Business interruption insurance
• Probably does not cover it anymore
• Cyber security insurance can provide for costs associated with:
• Recovery
• Consultants/lawyers
• Rebuilding system
• Investigation into what went wrong

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Are you prepared to respond to a cyber attack?

• Pre-retain an incident response coach (and possibly other

service providers) who can provide immediate assistance in the event of an incident.

• Public relations expertise
• Communicate with public?
• Legal issues arising from disclosed information
• Do you have to inform the public that their data has been

compromised?

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2019 OMAA Fall Workshop

Public Sector Restructuring

John W. Saunders

October 17, 2019

2019 OMAA Fall Workshop

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