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HomeMy WebLinkAbout1994-1029.Policy.96-05-13CROWN EMPLOYEES EW?.OY& DE LA COURONNE DE L’o1vTARIO COMMISSION DE SElTLEMENT RkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ON k&G 128 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ahg h&G lZ8 TELEPHONElT&LkPHONE : (416) 326- 1388 FACShUlLEiT~Li%OPIE : (416)326- 1396 GSB # 1029/94' CUPE # 94-40 IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Eefore THE GRLEVAECE BETTLEMENT BOARD BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER CUPE 1750 [Policy Grievance) - and - Grievor The Crown in Right of Ontario (Workers' Compensation Board) Employer S. Kaufman T. Browes-Bugden M. Milich Vice-Chairperson Member Member S. Barrett Counsel Sack, Goldblatt & Mitchell Barristers h Solicitors P. Pasieka Counsel Filion, Wakely & Thorup Barristers Q Solicitors FOR THE S. McArthur 4 INTERVENOR Counsel McArhtur, Vereschagin Barristers 6t Solicitors FOR THE P. Leung INTERVENOR Workers' Compensation Board HEARING May 5, 31, 1995 June 2, 1995 DECISION This is a policy grievance brought by C.U.P.E., Local 1750, which claims: The employer has violated Article 1.01 of the Collective Agreement and other relevant Articles by not applying the Collective Agreement to a num-' ber of employees who have been improperly excluded from the bargaining unit. This includes, but is not necesssarily limited to, employees who have ceased to be "excluded" employees for the purposes of the Crown Employees Collective Bargaining Act, subsequent to the reform of said Act. The parties adopted the following Statement of Fact: In addition to the facts set out in Exhibits 1-16 filed on the first day of hearing, the parties agree to the‘following additional and supplementary background facts: 1. The grievance, which was filed on August 4, 1994, and is found at Exhibit 1, involves up to approximately 1,263 employees in the positions set out under the column "Employer Position - BU" (hereinafter the "dispu- ted positions") in the document prepared by the Employer in April 1995 entitled "List of all NBU Jobs", Exhibit 19. Of these employees, the largest group covered by this grievance (approximately 938) is comprised of employees formerly excluded by the old Crown Employees Collective Bargaining Act by virtue of the exclusion of a person who "adjudicate (sic) or determines claims for compensation which are made pursuant to the provisions of any statute" (the former "adjudicators" exclusion). This includes persons employed in the positions of Junior Entitlement Adjudicator, Junior Benefit Adjudica- tor, Primary Adjudicator, Health Care Benefit Adjudica- tor, Senior Entitlement Adjudicator, Pension Adjudica- tor, Senior Benefit Adjudicator, Senior Adjudicator FEL Adjudicator, Special Needs Adjudicator, Penalties Adju- dicator, Claims Allocation Control Adjudicator, Claims Adjudicator Industrial Disease, Hearings Officer-, Rein- statement Officer and Decision Review Specialist. 2. The parties have agreed that the grievance is res- tricted to the effect of amendments to the Crown Employees Collective Bargaining Act, contained in Bill 117, on the question of whether employees in the disput- ed positions are now included in the Local 1750 bargain- ing unit. These amendments removed certain previous 2 .; .i exclusions from the definitions of "employee" under CECBA . The parties also agree that employees in the "disputed positions" were excluded by the provisions of CECBA prior to Bill 117, but that as as result of Bill , 117, employees in the disputed positions are no longer excluded, i.e. the parties agree that they are now employees within the meaning of the Act. '3. The Employer's position is that employees in the r disputed positions do not fall within the scope of the recognition clause, and are not included in the bargain- ing unit on the basis that the reference in the recogni- tion clause contained in the Collective Agreement to CECBA is to the previous legislation. The Union's posi- tion is that employees in the disputed positions fall within the scope of the recognition clause, and are included in the bargaining unit, on the basis that em- ployees in the disputed positions are no longer "persons excluded by the provisions of the Crown Employees Collective Bargaining Act". 4. In November ,1970, the Government of the day intro- duced Bill 217 (Exhibit 2) which, while containing vari- ous special exclusions unique to government employees, did not contain an exclusion for adjudicating or deter- mining statutory compensation claims. 5. Bill 217 never received second reading. Instead, the Government introduced Bill 105 (Exhibit 3) which re- ceived first reading in May 1972. Bill 217, which be- came the Crown Employees Collective Bargaining Act, 1972 (Exhibit 4), excluded a "person employed in a managerial or confidential capacity" from the definition of "employee" (s. l(g)(iii)). In turn, the former term was . defined in s. l(m)(v) to include a person who "adjudi- cates or determines claims for compensation which are made pursuant to the provisions of any statute". These provisions remained in place until the new CECBA. 6. On October 3, 1973, CUPE National applied for cer- tification of WCB employees. This application was dis- missed in June 28, 1974 (Exhibit 6) by Judge Little, the Chair of the OPSLRT, on the basis that CUPE National was not a trade union within the meaning of the Act. 7. On July 26, 1974, Local 1750 applied for certifica- tion, and was found to be a trade union in September 1974. There was a dispute over the appropriate bargain- ing unit, which was decided February 3, 1975 (Exhibit 7). 8. On June 20, 1975, Judge Little ruled that "claims officers" were excluded from the definition of employee under s.l(m) (Exhibit 8), but that rehabilitation coun- sellors were included as "employees" and therefore pro- perly included in the bargaining unit. 9. After Judge Little's ruling that claims officers were excluded from the bargaining unit, Local 1750 and the Employer agreed to additional exclusions from the bargaining unit. 10. Following a representation vote in September 1975, Local 1750 was certified on October 30, 1975 as the ex- elusive bargaining agent for "all employees of the WCB, save and except supervisors and persons above the rank of supervisors, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act, 1972 (Exhibit 10). 11. Since then, there have been 13 Collective Agree- ments between the parties, beginning with the 1975-76 Collective Agreement (Exhibit ll), including the most recent 1993 Collective Agreement. In each of these Agreements, with one change, the parties maintained the same recognition language as was contained in the certi- fication order itself. The change was made in the 1984- 85 Collective Agreement (Exhibit 12), when the reference to "1972" was dropped, i.e. so that the recognition clause now read It . ..and persons excluded by virtue of the provisions of the Crown Employees Collective Bar- gaining Act". 12. In 1991, the Government announced its intention to amend CECBA, issuing a consultation paper on CECBA re- form in June, 1991, which raised, among other matters, reform of the CECBA exclusion provisions. On June 14, 1993, the Government introduced Bill 55, which proposed to amend CECBA in a number of areas, including the "adjudicator" exclusion by virtue of s. l(l)(e). 13. Bill 55 was withdrawn and a successor Bill 117 in- troduced, with first reading on November 4, 1993, second reading on December 2, 1993, third reading and Royal Assent on December 14, 1993, and proclamation on Febru- ary 14, 1994. The new CECBA (Exhibit 5) removed certain of the former exclusions, including the "adjudicator" exclusion. 4 14. On or about December 2, 1991, during negotiation meetings, the Employer raised concerns about what might happen in the future concerning seniority dates for those individuals outside of the bargaining unit who might be going into the bargaining unit. Orally lan- guage was presented to the Union. The Union responded with written language. Ultimately, the parties agreed to the language contained in Article 4.01(d), which 4 provides that "employees in positions currently excluded from the collective bargaining unit will receive senio- rity credit for all continuous services should their position be deemed suitable for inclusion in the bargai- ning unit" (Exhibit 14). 015. In the case of Ontario public servants employed directly by the Government of Ontario (OPS employees), ' Part III of Bill 117 contains provisions statutorily creating a separate bargaining unit for employees previ- ously excluded from the old CECBA, (with the exception of lawyers and engineers employed in their professional capacities, who were placed in their own separate bar- gaining units). These provisions were included in part in response to the concerns of OPS employees excluded under the provisons of the old CECBA that, if the exclu- sions were removed, they would be included as part of the pre-existing Ontario Public Service Employees' Union bargaining unit covering all OPS employees. 16. During negotiations for the 1993 Collective Agree- ment the Employer proposed a change to Article 4.01 of the Collective Agreement. The Union responded with lan- guage which was agreed upon in a Memorandum of Settle- ment on February 14, 1994. The amendment to Article 4.01 was as follows: 4.01(c) Subsequent to December 31, 1993, employees in positions currently excluded from the collective bargaining unit by virtue of the provisions of the Crown Employees Collective Bargaining Act shall re- ceive seniority credit for all continuous service with the Employer should their position be deemed suitable for inclusion in the bargaining unit. 17. The February 14, 1994 Memorandum of Settlement was not ratified by the Union's membership. On April 20, 1994, the parties entered into a second Memorandum of Settlement for the 1993 Collective Agreement, which, among other things, returned to the 1991-92 Collective Agreement seniority language in Article. 4.01, which the Union proposed with respect to the second Memoran- dum of Settlement. No oral evidence was given in this proceeding. The agreements applicable to the parties at the time the grievance was filed are the April 20, 1994 Memorandum of Set- tlement and from that Memorandum, the collective agreement 5 applicable to the period January 1, 1993 to December 31, 1993 (Ex. 15b). The relevant provisions of that agreement are: ARTICLE 1 RECOGNITION &l.Ol The Employer recognizes the Canadian Union of Pub-* lit Employees Local 1750 as the exclusive bargain- ing agent for all of its employees, save and except supervisors, persons above the rank of supervisor, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act. 1.03 Any question as to whether a person is an employee may be referred to the Ontario Public Service Labour Relations Tribunal, and its decision thereon is final and binding for all purposes. ARTICLE 4 . SENIORITY 4.01 Senioritv Definition (a) (b) (cl W For any employee appointed to a position in the bargaining unit after May 31, 1977, seniority as referred to in this Agreement, shall be defined as the length of service from the most recent date of appointment to the bargaining unit. Effective the Date of Ratification of this Agree- ment, for all employees in the bargaining unit as of May 31, 1977, seniority as referred to in this Agreement, shall be based upon and shall mean length of continuous service of the employee with the Employer. It is understood, however, that for the purposes of the application of this Article, any person who is a non-bargaining unit employee and not a manager or above who is appointed to a position in the bargaining unit and who was em- ployed in the bargaining unit as of May 31, 1977, shall be entitled to only that portion of their seniority, if any accumulated as an employee in the bargaining unit or a positi,on which would have been in the bargaining unit had the bargaining unit existed at that time. . . . Employees in positions currently excluded from the collective bargaining unit will receive seniority credit for all continuous service should their position be deemed suitable for inclusion in the bargaining unit. On February 20, 1995, Mr. Barrett's submissions on behalf of the union included the following: There are two branches to the union's position. The ' first is "the accretion branch", i.e. there has been an accretion of employees into the bargaining unit by virtue of the amendments to the Crown Emnlovees' Collective Baraaininq Act, R.S.O. 1990, c. 50, "the old CnA", which are found in Bill 117, S.O. 1993, c. 38 ("CRCBA, 1993"). The second is that there are positions and certain employees who fall with- in the bargaining unit regardless of CECBA, 1993. Under the old CECBA, the following definitions in the act applied to Workers: Compensation Board ("WCB") employees to exclude them from inclusion in the bargaining unit: 1. - (1) InthisAct "employee" means a Crown employee as defined in the Public Service Act but does not include, . . . . . . (c) a person employed in a managerial or confidential capacity, . . . "person employed in a managerial or confidential capacity" means a person who (a) (b) (Cl (d) (e) . ..the chief executive officer of any agency of the Crown, . . . is involved in the formulation of organiza- tion objectives and policy in relation to the development and administration of programs of . . . an agency of the Crown or in the formula- tion of budgets of... an agency of the Crown, 4 spends a significant portion of his or her time in the supervision of employees, . . . adjudicates or determines claims for compensa- tion which are made pursuant to the provisions of any statute, , i Mr. Barrett, Feb. 20. 1995 (cont'dl (f) is employed in a position confidential to any person described in clause (a), (b), (c), (d) or (e), (g) is employed in a confidential capacity in mat- .* ters relating to employee relations including a person employed in a clerical, stenographic' or secretarial position in...[an] agency of the Government of Ontario, (h) . ..not otherwise described...but who in the opinion of the Tribunal should not be included in a bargaining unit by reason of his or her duties and responsibilities to the employer; S. l(l)(a) above is "gone" but has been replaced, and s. W)(Wr (c)t (e), and (f) have been removed. S. l(l)(g) has been more narrowly defined. The union needs to identify the positions no longer excluded by the former s. l(l)(b) and (0 l In spite of the changes in the old CECBA, and CECBA, 1993, the recognition clause governs. The parties used the language in Judge Little's October 30, 1975 Grant of Repre- sentation Rights: to Canadian Union of Public Employees Local 1750 Employees of the Workmen's Compensation Board as the bargaining agent of all employees of the Work- men's Compensation Board, save and except super- visors and persons above the rank of supervisors, and persons excluded by virtue of the provisions of The Crown Employees Collective Bargaining Act, 1972. in the recognition clause of each successive collective ag- reement with the exception of the elimination of "1972" in the 1984-85 agreement. Art. 1.01 of the 1984-85 collective provides: The Employer recognizes the Canadian Union of Public Employees Local 1750 as the exclusive bargaining agent for all of its employees, save and except supervisors, p ersons above the rank of supervisor, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act. Mr. Barrett, Feb. 20, 1995 fcont'd) Employees formerly excluded under the old CECBA are now in- cluded in the bargaining unit, and Art. 1.01 should be read literally. It is consistent with the intent and scheme of the CECBA. 1993 amendments. The contrast between the treat- ment in CECBA. 1993 of regular Crown Employees, i.e. OPS or , public servants, and Workers' Compensation Board employees, will be relied on. S. 23(3) of CECBA, 1993 creates a seventh bargaining unit to prevent an accretion to the OPSEU bargain- ing unit of the employees not included in the other six bar- gaining units. In s. 23(3) the government specifically cre- ated an unrepresented seventh bargaining unit, which only ap- plied to public servants; no such provision was made regard- ing WCB employees. Because s. 23(3) does not apply to WCB employees, it can be safely assumed that membership in the Local 1750 bargaining unit is not restricted. Although OPSEU had not agreed, it had been resolved that excluded employees would enter with their seniority; that was why the government passed the provision creating the seventh bargaining unit. The parties modified the seniority language in Art. 4.01 after CECBA reform had been introduced, specifically in con- templation of the relaxation of the exclusions. The language of Art. 4.01 (d) in the 1991-92 agreement Employees in positions currently excluded from the collective bargaining unit will receive seniority credit for all continuous service should their po- sition be deemed suitable for inclusion in the bar- gaining unit. reflects the parties' intention that new inclusions to the unit would carry their seniority credits into the unit, as the seniority provisions of the previous agreements contain no reference to employees in positions currently excluded from the bargaining unit receiving seniority credit for all continuous service. The Memoranda of Settlement dated Febru- ary 14, 1994 and April 20, 1994 demonstrate that the employer acknowledged the effect of CECBA in the course of negotiating the 1993 agreement. Mr. Barrett. Feb. 20, 1995 (cont'd) The enactment of CECBA, 1993, the creation of the 7th bargaining unit, the parties' treatment of seniority in the collective agreement since 1991, contemplating the subsequent inclusion of those previously excluded, along with the inclu- sive rather than exclusive language in CECBA, 1993, leaves no doubt of the meaning of Art. 1.01 in relation to CECBA. The parties' reasonable expectations and intentions were to in- corporate the changes in the status of the employees who would be affected by the amendments to CECBA. Certain positions are neither supervisory within the meaning of Art. 1.01 or exclusions within the old CECBA or CECBA, 1993, but they are not being included in the bargain- ing unit. The employer's position is that the Local aban- doned some of the positions at certification and that others are newly created positions which the Local agreed not to in- clude. The parties have not identified those positions yet. Where the employer alleged abandonment of certain positions, the onus was upon the employer to prove that abandonment. On February 20, 1995, Mr. McArthur and Mr. Leung made brief submissions on the merits of the dispute. Mr. McArthur submitted that whoever represents the formerly excluded em- ployees is the choice of those employees and is not a matter of accretion. The imposition of a bargaining unit on the employees P.A.C.E. represents will have an adverse effect on them. Even if that had been the intent of the legislation, there is a Charter argument. Mr. McArthur advised he would be submitting Charter arguements. On May 5, 1995, Mr. Barrett advised4this board that the parties and intervenors were agreed that the employees/posi- tions indicated in Ex. 19 were excluded under the old CECBA, and are now "employees" under CECBA, 1993, and that they dis- agree as to the effect of them now being "employees". The parties and intervenors agree that if the union's interpreta- Mr. Barrett, Mav 5, 1995 [cont'd): tion of Art. 1.01 is correct, and the board is not persuaded .- of a Charter problem, then the employees are in the Local, but if either of the arguments does not persuade the board, the employees so identified are just "employees". We request the board to restrict itself to the issue of whether the formerly excluded positions are in the bargaining unit, and not to deal with the abandonment issues, which may be taken to another forum. Only the positions of 3 Branch Secretaries and 5 FAC Planners in the Information Services Division were in dispute for reasons related to the interpretation of Art. 1.01 and the CECBA amendments. The disputes regarding the balance of the positions in that Division claimed by the union for inclusion in the unit pertain to abandonment. The question the board is asked to address will not affect Mr. Leung or any of the people he represented. The Union and the Employer will inform Mr. Leung if a dispute arises that concerns him and those he represents, and the Union will give him notice under s. 108 of the Labour Relations Act, R.S.0, 1990, c. L.2. Mr. McArthur has asked me to put on record that he, representing employees granted intervenor status in the April 20, 1995 interim ruling, and I, have agreed that Mr. McArthur represents employees in each of the positions in Ex. 19, and that the panel does not need to concern itself about authori- zations. Ms. Pasieka's submissions, Mav 5, 1995: The board needs to look at only those positions identi- fied as "Employer position BU" in Ex. 19, The union can look at the remainder in another forum. As the employer goes through its reasons for exclusion from the bargaining unit, it may add some positions to those identified as "Employer position BU" in Ex. 19. Those addi- tions will not change the substance of the arguments. The J s . Pasieka, Mav 5, 1995 (cont'd!: positions which have been identified as NBU under Columns 2 and 3 as "abandoned" have eliminated a significant part of the evidence. The employer's concern is that its employees' individual, rights have not been compromised by an agreement it was not entitled to make with the union. The decision to determine that an excluded group should be swept into the bargaining unit without the usual protections before the Ontario Labour Relations Board should not be the employer's decision, alone, or with the union, moreso where an intervenor represents a significant number of employees who would be affected by such a decision. The employer wishes to ensure that the public's confidence in the collective agreement procedure and the existing collective bargaining relationship is not undermined by any decision it makes. The issue to be determined is whether CECBA. 1993 has changed the interpretation of the collective agreement. The onus is on the union to establish that its interpretation of the collective agreement is correct. Very clear language is required to so significantly alter individual rights without consultation, and the onus of so demonstrating is upon the union. Although this was suggested in Mr. Barrett's opening statement, the employer made no representations during nego- tiations. Even if it had, that should not be able to effect the individual rights of employees. The union's reliance on an employer's representation which would somehow compromise or limit the right of an individual outside of the bargaining unit would be wrong in law as well as in fact. Mr. McArthur. Mav 5. 1995: There is no need for evidence in this proceeding. We have agreed to written submissions regarding the Charter, and to oral submissions regarding statutory interpretation. P.A.C.E. has representatives throughout the bargaining unit. Its submissions will cross the spectrum of about 1200 positions. Mr. Leung, Mav 5. 1995: +I and the employees I represent would like a letter from , Local 1750 indicating our positions will not be affected by this grievance, and a written commitment from Local 1750 that if at a later date it appears that our positions will be af- fected, here or at another forum, it will provide me written notice of same. Ms. Pasieka, Mav 5, 1995: The employer will undertake that if, through agreements regarding the propriety of the employer's proposals to ex- clude certain positions from the bargaining unit, the posi- tions of Mr. Leung and those-he represents are to be included in the bargaining unit Mr. Leung will receive written notice, and further, that if the employer feels more people should be added before this adjudication is completed, it will notify those employees. The employer is anticipating changes regar- ding Columns 1 and 4 of Ex? 19. Neither Mr. Leung nor any of the people he represents are in the employer's BU column. The employer's undertaking is limited to these proceedings. Mr. Barrett, Mav 5, 1995: If the Local pursues the inclusion of the position occu- pied by Mr. Leung or the people he represents, the Local will provide notice to Mr. Leung. An Agreed Statement of Fact will be provided indicating whether the employer made repre- sentations or not. 4 The proceedings were adjourned to May 31, 1995, when the parties provided the Statement of Fact which appears at the beginning of this decision. Mr. Leung did not attend on May 31, 1995. Mr. Barrett, Ms. Pasieka, and Mr. McArthur made further submissions. Before beginning argument, Mr. Barrett advised the panel that all counsel agreed to the contents of the Statement of . Fact. He asked the panel to consider whether the positions identified in Ex. 19 as "Employer position BU" were included in the bargaining unit, and that the parties would deal with those designated therein as NBU positions. . Ms. Pasieka said that although the parties had submitted the Statement of Fact, she reserved her right to make submis- sions as to the weight to be given any of the facts, particu- larly para. 15, which the employer views as irrelevant to the determining issue. i.e. "interpretation". Mr. Barrett. Mav 31. 1995: This case turns on the interpretation of Art. 1.01: The Employer recognizes the Canadian Union of Pub- lic Employees Local 1750 as the exclusive bargain- ing agent of all of its employees, save and except supervisors, persons above the rank of supervisor, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act. On the plain language of Art. 1.01, and of CECBA. 1993, which omitted the adjudicator exclusion in the old CECBA, we all agree that the adjudicators are not excluded. That ends the issue. This is an all-employee unit, save and except for exclusions. The factual background lends support to the union's interpretation. The certificate (Grant of Representation Rights) issued by the OPSLRT repeats the language of Art. 1.01. In the initial application for certification brought by C.U.P.E., Local 1750, the Tribunal determined that "the appropriate bargaining unit [is] one comprised of all em- ployees of the respondent [WCB) except fof" certain statutory exclusions found in s. l(l)(g) of CECBA, 1972. The certifi- . cate does not refer to s. l(l)(g). It did not specifically exclude the positions that were subsequently found to be ex- cluded, nor did it specify categories of positions that were excluded. On June 20, 1975, the Tribunal held that adjudi- .s- 14 ‘f . arrett. Mav 31, 1995 (cont'd!: caters were excluded. The parties adopted the Tribunal's approach to defining the scope of the bargaining unit from that point on. Thirteen collective agreements have been negotiated over L the past 20 years. Rather than specifying who is included, i or incorporating specific exclusions, the parties continued to use the general language of Art. 1.01, i.e. save and ex- cept for those excluded by virtue of the provisions of CECBA. It is appropriate to infer that the parties' intention was that if CECBA was amended, the bargaining unit would include those persons who were no longer excluded. The parties made one change to the scope clause. There is no evidence as to their reason(s) for having done so. In the 1984-85 agree- ment, they dropped the'reference to 1972 after the name of the act. It should be inferred from that amendment that the parties intended the exclusions to be governed by CECBA, how- ever it read. In 1991 the government announced its intention to amend In December of 1991 CECBA, and issued a consultation paper. the employer raised concerns regarding the seniority dates of those in positions which might be going into the bargaining unit, and agreed to Art. 4.01(d) in the 91-92 agreement. On June 14, 1993, Bill 55 was introduced but was not proceeded with. In November 1993, Bill 117 was introduced. It removed a number of exclusionary descriptions.. In November, 1993, the parties were negotiating the 1993 agreement, which was resolved by a Memorandum of Settlement. On February 14, 1994 they agreed in a Memorandum to what was then Art. 4.01(c). That memo was not ratified and the parties reverted to the seniority language found in the 91-92 agreement. In -1993 the parties agreed to the language in Art. 4.01(c) of the 1993 agreement, which would give a seniority credit to those who they anticipated would go into the bargaining unit. On that language alone, the parties were clearly contemplating CECBA reform, that the former exclusions would be inclusions and Mr. Barrett, Mav 31, 1995 (cont'd): they would receive a full seniority credit. If the union's argument is accepted, the language of Art. 4.01(d) of the 91- ~. 92 and 93 agreement.means they would enter the bargaining unit with full credit for all previous continuous service. The union's position is consistent with "the Certifi- * cate" i.e. the Grant of Representation Rights. In all thirteen collective agreements and twenty years of collective bargaining, there has been no alteration of the approach in Art. 1.01, i.e. the reliance on CECBA to deter- mine the exclusions. Obviously, CECBA could be amended. The parties could have specified who they meant to ex- clude, but they did not. The union's position is consistent with the omission of "1972" in the collective agreement. It is also is consistent with the seniority language in the 91- 92 collective agreement. Two months after the proclamation on February 14, 1994 of Bill 117, the February 14, 1994 Memorandum of Settlement was rejected, and on April 20, 1994, the parties, in revised Minutes of Settlement, agreed to use the same language in the recognition clause, i.e. "all employees, . . . save and except for" those excluded by CECBA. However, by then, none of the old exclusions remained excluded. The current collective ag- reement was signed in February of 1995. This is compelling. The parties knew that if the CECBA exclusions became more or less restrictive, that would affect the Local 1750 bargaining anit. The fact that the parties knew in 1994 that if they used the same language in Art. 1.01, CECBA would govern and certain people would come into the bargaining unit lends fur- ther support to the union's position. The parties could have specified which exclusions would remain titer CECBA was amen- ded, but they did not. If CECBA had been amended during the period of a collec- tive agreement, the positions in the bargaining unit could have changed within that period. Further, the parties knew CECBA had been amended when they ratified the 1993 collective Mr. Barrett, Mav 31. 1995 (cont'db: agreement. As a result, the union rejects the suggestion ,A that the reference in Art. 1.01 to CECBA is a reference to CECBA as it stood at the time the parties entered into each agreement. -. This is an accretion to the unit. The following cases V support the union's position: Canadian Abpliance Mfq: Co. Ltd. and U.S.W. (1978), 20 L.A.C. (2d) 59 (Shime); Crown Cork 61 Seal Canada Inc. and U.S.W.A. (May 1, 1992) unreported (Shime); International Chemical Workers, Local 552, and Emerv Industries (Canada) Ltd. (1970), 21 L.A.C. 163 (Weatherill); Alliance Emplovees' Union v.. Public Service Alliance of Cana- da v. Ottawa Tvooaraahical Union, Local 102, OLRB 0460-84-R, February 10, 1987, MacDowell; C.U.P.E., Lot. 2046 and Cane Breton Develonment Cordoration, Coal Division, Svdnev, Nova Scotia, and John A. Maxner, et al., CLRB file 530-1297, Deci- sion 595, October 31, 1986; Smith v. South Wales Switchcear Ltd. [1978] 1 All E.R. 18 (H.L.); Bell Canada and C.T.E.A. (19941, 43 L.A.C. (4th) 172 (MacDowell). In Canadian Annliance the issue was whether pre-existing employees of the successor-owner were members of the bargain- ing unit. Since the recognition clause governs, this case recognizes accretion occurring by merger, hiring and by the acquisition of an additional location. Arbitrator Shime said that the function of the arbitrator is to interpret the col- lective agreement by looking at the plain language in the recognition clause. In Canadian Annliance pre-existing em- ployees fell within the recognition clause. The situation in this case is similar to the merger or sale of a business. Further, in this case the employer knew about the changes in CECBA and could have negotiated other language. Crown Cork and Seal was the successor owner of Continen- tal Can. The U.S.W.A. master agreement with Continental Can contained a recognition clause which indicated that "the em- ployees of any location of the Company at which metal cans are manufactured" were me,mbers of the bargaining unit. At Mr. Barrett, Mav 31, 1995 Icont'd): issue was whether office employees at a "combined office and manufacturing facility" where metal cans were manufactured were also included in the bargaining unit. The employer's arguments that the office was not included within the words >. "location of the Company at which metal cans are manufactur-i ed " and that "very clear and convincing language would be needed to sweep the office employees" at the combined faci- lity into the bargaining unit were unsuccessful. Arbitrator Burkett reviewed the practice of the OLRB "to describe a bar- gaining unit in terms of the employees of the employer in a designated geographic area". He stated the practice was . ..designed to strike a balance between the exer- cise of individual rights, on the one hand, and labour relations stability, on the other hand. The sweeping into the bargaining unit (under the geo- graphic scope of an existing collective agreement) of employees at a new or expanded operation within the designated municipality is commonly referred to as an 'accretion' to the bargaining unit. He concluded that the parties who negotiated the Master Agreement intended that it apply, by accretion, to both pro- duction and office employees "in any location of the company at which metal cans are manufactured", that the parties "chose to prospectively extend the scope of the agreement" without excluding any category of office employee, and that had Continental Can relocated its head office employees to a location where metal cans were manufactured, it would have been unable to exclude those office employees from the bar- gaining unit. He further stated . ..the concept of "accretion" to an existing bar- gaining unit under which employees with no prior connection or expressed preference for a connection are swept into a pre-existing bargaining unit is a long-standing tenet of labour relations policy de- signed to balance labour relations stability and individual rights. In circumstances where a com- pany opens a plant within the geographic scope of the union's bargaining rights employees are swept into the bargaining unit. . . . where the company un- reservedly agreed to be bound by a recognition IX r . Barrett, Mav 31. 1995 (cont'd!: clause, without any exclusions, expressly designed to sweep within the ambit of the agreement "the em- ployees of any location of the company at which me- tal cans are manufactured", it is difficult to un- derstand how it can be that employees at a location s where metal cans are manufactured, who are not re-, presented, are somehow excluded from the bargaining unit. The same principles apply, notwithstanding that the accretion in this case results from a change in legislation. In International Chemical the principle of accretion was again applied. In Alliance Emolovees' Union the scope clause and not the initial certificate was held to define the extent of the bargaining unit. The initial certificate was considered "spent" once the parties had produced a collective agreement containing a scope clause. Arbitrator MacDowell said that the jurisdiction of the Ontario Labour Relations Board was not parallel to that of the Canada Labour Relations Board, and that the Ontario approach is to describe a generic bar- gaining unit and limit it with a "save and except" clause. This is the approach taken in the certificate and Art. 1.01 of Local 1750 and WCB's collective agreement. The Ontario approach views the certificate as "spent" once the collective agreement is established. In contrast, the Canada Labour Relations Board views its certificates as lasting and that they can monitor them. The approach of the Canada Labour Relations Board is exemplified in CUPE. Lot. 2046 and Cape Breton Develonment. In that case, the Board indicated that where proposed altera- tions to a bargaining unit are consistent with the scope of the original unit, the Board will move employees into the unit without their consent, but where the proposed changes change the fundamental nature of the bargaining unit, the Board will consider the wishes of the employees. Even if we were under the jurisdiction of the Canada Labour Relations Board, the proposed changes would be consistent with the ori- Mr. Barrett, Mav 31. 1995 (cont'd): ginal certificate, and the wishes of the employees would not be relevant. However, in Ontario, the recognition clause, not the certificate, governs which employees fall within the bargaining unit. "In Smith v. South Wales, the parties to a private con- , tract imported certain terms into their agreement by refe- rence to 'General Conditions of Contract 24001, obtainable on request'. The issue before the House of Lords was whether the parties were referring to the current or prior terms of 'General Conditions of Contract 24001'. The court held that the incorporation of standard terms by reference is presumed to incorporate the standard terms which were current at the time at which the contract was signed. This was a "plain meaning", "contractual" approach to interpreting the inten- tion of the parties. In Bell Canada, the collective agreement prohibited "unlawful discrimination based on sexual orientation". Bell preceded Haia v. Canada (1992), 94 D.L.R. (4th) 1; 9 O.R. (3d) 495, in which the Ontario Court of Appeal held that sexual orientation was a proscribed ground of discrimination in the Canadian Human Rights Code. There was no appeal from the Ontario Court of Appeal's decision. The words "unlawful discrimination" were considered in Bell Canada. At p. 192, Arbitrator MacDowell said I do not accept the company's submission that the word "lawful" in art. 2.02 imports only the law as it was at the time that the collective agreement was concluded. Rather, I think the word takes its context from an evolving legal framework in which both courts and legislatures may play a part. What is "lawful" or "unlawful" is what is declared to be so by a competent legal authority from time to time; and it is this concept of "unlawfulness" that, in my view, is imported into the collective agreement. This dynamic notion is more consistent with the ordinary understanding of the words of art. 2.02, the inclusion in art. 2.02 of a term--"sexual ori- entation" --which was not the subject of legislative .i 20 Mr. Barrett. May 31, 1995 (cont'd): prescription at the time the collective agreement /. was concluded, and with art. 36.01 which contem- plates that the agreement would be amended to con- form with changing legal standards. For that is what has happened here. The law has changed--not by legislative amendment as the company's response contemplates, but by the judicial application of 1 the Charter. But it has changed none the less, and that change feeds the elastic term "unlawful" found in art. 2.02. This supports the union's first approach. In Bell, the law changed after the collective agreement was negotiated. In the instant case, CECBA changed and the parties retained the same language. In 1994, the parties made clear what they had always in- tended. In continuing their reference to CECBA in Art. 1.01, they knew what they were doing. S. 22 and 23 of Part III of CECBA, 1993 dealing with the establishment of a seventh bargaining unit refers only to Ontario Public Service employees. S. 23 refers to "Crown employees who are public servants as defined in the Public Service Act." S. 23(l) refers to the establishment by Order of the Lieutenant Governor in Council of seven bargaining units. The six units referred to in s. 23(2) are OPSEU bar- gaining units. The seventh bargaining unit is comprised of Crown employees not included in the other 6 bargaining units, with two stated exceptions. The seventh bargaining unit was provided for in the legislation in part due to concerns that if the old CECBA exclusions were removed, the employees in / those positions would fall into the OPSEU bargaining unit. This may be relevant. Mr. McArthur will submit,that the legislature did not intend the WCB employees to fall into the Local 1750 bargaining unit. The union submits that the legislature was clearly aware that if the exclusions under CECBA were changed, an inclusion in a pre-existing bargaining unit could result. That is a matter of policy. The legisla- / ture created a seventh separate bargaining unit for previous- ly excluded Ontario Public Service employees, but not others. ! I i 1 I 21 r . Barrett, Mav 31, 1995 (cont'd1: The board can infer that the legislature intended an accre- tion of those employees to C.U.P.E., Lot. 1750. The parties entered a collective agreement in 1994 after the amendments had been proclaimed. This is a simple case. , The context supports the meaning the union advocates. Ms. Pasieka, Mav 31, 1995: In interpreting the collective agreement it is useful to bear in mind the three Cg Acts that have applied to it: the first Act, CECBA, 1972, under which this bargaining unit was originally issued a cer- tificate; the second CECBA; and the third Act, proclaimed on February 14, 1994, identified as CECBA, 1993. The union says that on February 13, 1994, the WCB employees in question were excluded from the bargaining unit. Nothing changed about the parties' terms of employment. The only thing that changed was CECBA. The union's position is that the amendments to CECBA profoundly changed the relationship between those employees and the employer. The collective agreement does not refer to those employees. It contains no job titles, job descriptions or pay rates. It contains no obvious way of characterization of those employees. The only guidance in the agreement is Art. 1.01, which describes an "all employee" bargaining unit with an exception, i.e. the CECBA exclusions. The union's view of Art. 1.01 denies any right of ex- pression of a group of employees and eliminates any potential competition. The employer's view of the plain meaning of Art. 1.01 is dramatically different. At best, the collective agreement simply identifies the legislatibn which it incorpo- rates. If an ambiguity exists, the board can consider other material besides the words of the collective agreement. The parties do not agree that an ambiguity exists. They have not referred to CECBA, 1993 in Art. 1.01. If the union takes the position that there is an ambiguity, it was legislatively im- -c 22 0 Ms. Pasieka, Mav 31. 1995 (cont'd): posed. (At that point Mr. Barrett advised that the union does not take that position.) Further, CECBA, 1993 does not state that employees for- merly excluded from'the bargaining unit are now included. It simply says they are eligible for inclusion; it frees them or another union to organize. It also gives them the opportuni- ty not to be in a bargaining unit if that is their intention. S. 54 (1) and (2), the CECBA. 1993 transitional provi- sions: 54.-(l) A unit of employees that was a bargaining unit under the old Act immediately before the re- peal of that Act is an appropriate bargaining unit for the purposes of the Labour Relations Act until the description of the bargaining unit is altered under the Labour Relations Act. 54.-(2) Despite the Labour Relations Act, the des- cription of a bargaining unit referred to in sub- section (1) cannot be altered until after a collec- tive agreement is made following the coming into force of this section. contemplate that the parties must determine the bargaining unit. They constitute an argument against accretion. The parties have not agreed to any valid labour rela- tions principles supporting the accretion favoured by the union. The intervenors indicate large numbers of employees disagree with accretion. The potential elimination of compe- tition, and of the right of expression of a group of employ- ees should not be ignored in determining this dispute. Would the union's interpretation encourage collective bargaining or promote harmonious labour relations? The in- tervenors will say no. The union's interpretation will ac- commodate the union. It would serve the employer's purposes by avoiding having to deal with more than one bargaining unit. However, given the dissent expressed, the employer questions whether the union's interpretation would contribute to harmonious labour relations. The dissenters could contri- bute to dissent within the existing union. On balance, there 23 1, Ms. Pasieka, Mav 31. 1995 (cont'd): is no valid labour relations purpose in allowing the union's argument, though the employer admits it would advantage it, subject to the effect of dissent on harmonious labour rela- tions. The intervenor brings a difference to this dispute which the employer cannot represent. In interpreting the r collective agreement, the collective bargaining process, fairness, and the perception of fairness must be protected. Sweeping in thousands of employees without choice has the potential to denigrate the bargaining system. What these parties agreed to must be determined. The collective agreement is the only document to be considered, and it is very clear. However, beyond the words of the col- lective agreement, the certification and bargaining history can be considered. The original certificate refers to CECBA, 1972. The parties agreed to remove "1972". The agreement to remove "1972" indicates a pattern of sitting down and talking about changes in language, to reflect the current situation. The parties did not do that in this case. The union submits that when the parties took out "1972", the remaining reference to CECBA was not to CECBA as it ap- peared in the 1980 Revised Statutes of Ontario, but CECBA as amended from time to time. However, when the parties took out "1972", they clearly adverted to the legislated title of the Act as it then existed. The parties intended to refer to the existing CECBA in 1984-85, and used the words to express that intention, i.e. in 1984-85 they amended their agreement to the short title of the Act then in existence, the Crown Emnlovees Collective Baraainina Act. The current collective agreement was signed on April 20, 1994, after CECBA, 1993 was proclaimed in, force. The union's submissions ignore the fact that the Memorandum of Settlement signed on April 20, 1994 was for an agreement for the period January 1 to December 31, 1993, which had already expired. The parties made no specific reference to the new CECBA, pre- sumably because it was not in force as of December 31, 1993. ._- -- 24 .I Ms. Pasieka, Mav 31. 1995 (cont'd): No assistance can be drawn from the timing of the April 20, 1994 Memorandum of Settlement or the words in Art. 1.01 re- sulting from the Memorandum, because the contractual period dealt with ended before CECBA, 1993 came into force. L The question arises as to why the union would sign an l agreement which did not cover its employees, as it viewed them. Those employees were not in the salary schedule. The union was involved with the amendments to CECBA prior to April 20, 1994. The collective agreement the parties agreed to on April 20, 1994 covered a period which ended December 31, 1993, and applied retroactively. With respect to the cases submitted by the union, the collective agreement is not comparable to a contract between private parties, or a 'contract of insurance, and the rules of interpretation applicable to contracts of that nature. The union's cases are of no assistance in interpretting the par- ties' collective agreement. Canadian Appliances, supra, dealt with a merger, and is therefore not analagous to this case, in which the employer remains the same, and the legis- lation has changed. The following cases support the employer's position: Revelstoke Pre-Mix v. Chauffeurs, Teamsters and Helners, Local 395 and Labour Relations Board of Saskatchewan, [1977] 2 W.W.R. 39 (Sask. C.A.); Bulk Carriers Ltd. and General Truck Drivers (1972), 2 L.A.C. (2d) 413 (Egan); and Telecommunications Workers and B.C. Teleohone, [1978] 2 C.L.R.B.R. 387 (Dorsey). In Revelstoke, independent contractors were held to be excluded employees and were not covered by the certificate. After the certificate was issued, the definition of employee was amended in the act governing labour relations in Saskat- chewan. After the amendment, the parties bargained for an "all-employee" unit, to which they had previously agreed in the recognition clause. The union argued that owner-opera- tors came within the scope of the recognition clause. The Ms. Pasieka, Mav 31, 1995 [cont'd): Saskatchewan Labour Relations Board agreed, as did the Sas- katchewan Queen's Bench. The Court of Appeal overturned those decisions. At p. 47 the court concluded: If the union believed that owner-operators were *included in the appropriate unit, it would only have . needed to request the employer to comply with the provi- sion for union security as set out in the collective bargaining agreement. That the union did not do so leaves the inescapable inference that the union believed the employees classified as owner-operators had been excluded in the certification order of 5th January 1972. As a matter of fact, in these proceedings the union never denied this; it simply argued that as the certifi- cation order said "all employees", while that term may not have included owner-operators at the time the order was made, it did so now because of the 1972 Act. In my view, while the Labour Relations Board, after the 1972 Act became law, had the jurisdiction to desig- nate the independent contractors or owner-operators as employees for the purposes of that Act, that right had no retrospective application so as to alter the composi- tion of the appropriate unit as previously found and de- termined by the Labour Relations Board. I am satisfied that in finding the employer engaged in an unfair labour practice in respect to employees not included in the ap- propriate unit, as found and determined in the certifi- cation order, the board purported to exercise a juris- diction which it did not possess and therefore the order must be quashed. A superior court refused the union because the union's posi- tion would have ignored the parties' intentions in negotiat- ing their collective agreement. That is a parallel to this case. Bulk Carriers dealt with whether the hours of work in a collective agreement were automatically revised by an amend- ment to a regulation. The union viewed the amendment as less favourable than the collective agreement and argued that the collective agreement incorporated the regulations existing on the date of signing, for the duration of the collective ag- reement. The board of arbitration stated that had the par- ties intended to incorporate subsequent amendments of the Act and regulations into their agreement, they could have done so by appropriate additional language. All the parties in Bulk Ms. Pasieka, Mav 31. 1995 tcont'd): Carriers and in the instant case had to do to reflect such an intention, was add the words "as amended from time to time". Bulk Carriers was appealled and upheld without extensive reasons. Accretion is never entered into lightly. It applies , only in specific circumstances such as the creation of new positions, and in successorship. It does not apply in the circumstances of this case. It is a dramatic concept to ignore the wishes of the employees. In B.C. Telephone the union was certified in 1945. As time went on, the employer created new classifications which were not included in the recognition clause and the union grieved. The B.C. legislation was similar to the Canada Labour Code. The policy reasons at pp. 393 - 395 are appli- cable to the situation before this panel. On pp. 393 - 395 of B.C. Telephone the union argued that it should be permit- ted to return to the "all employee" description of the bar- gaining unit in the original certificate, despite having in subsequent agreements referred to listed classifications of employees in the scope clause. The board stated that the union's approach ran "counter to fundamental principles ex- pressed and incorporated in the Canada Labour Code", and that where the parties had specified a coherent and appropriate unit in a later agreement and "the union had not violated its duty of fair representation in negotiating it", the literal application of an original broad unit description would not be appropriate, for the following reasons: . ..the incorporation of employees previously unrep- resented into a bargaining structure izrithout refe- rence to their wishes places easily foreseeable strains upon the relationship bgtween the employer, the union and the employees. If a large number of employees is included against the union's wishes and at the behest of the employer, the union could find itself faced with an application for decerti- fication of the entire unit and lose representatio- nal rights for those it previously represented. The addition of employees to an established bargai- j 27 Ms. Pasieka. May 31. 1995 (cont'd): ning relationship without reference to their wishes creates immediate and foreseeable conflicts between them and employees in the established bargaining structure. This conflict can be expressed by em- ployees who are added to the unit refusing to par- ticipate in internal union affairs . . . The predic- 5 table results are industrial unrest and an under- , mining of the role of trade unions in industrial society. Secondly, an accretion to a bargaining unit of employees who have been hitherto excluded from the bargaining structure without reference to their wishes can result in a loss of society's perception of the integrity of the collective bargaining sys- tem and its fairness.... . . . . ..The tradition of collective bargaining legisla- tion in Canada, reflected in the provisions of the Code, contains the implicit understanding that a trade union becomes the bargaining agent for em- ployees only through an expression of a desire for representation by a majority of employees it has not represented. To run counter to that tradition, in this case, where the union relinquished the be- nefits of the "all employee" description in its bargaining unit, would create a hostility to col- lective bargaining by the employees added to the bargaining unit and the understandable impression that the collective bargaining system under the Code was designed or being administered for the benefits of trade unions as institutions and not for the interests of employees. This would be even more emphatically the case in the circumstances of this application where the Board has received ac- tive representation and express communication by a large number of persons in the classifications I sought to be added to the upit expressing a desire not to be represented by the applicant union. In view of all the previous submissions, the union has failed to make out its case. Art. 4.01(d) does not mean people are automatically r swept into the bargaining unit. It means that C.U.P:E. or another bargaining unit can organize the 'formerly excluded I t employees. Art. 4.01(d) was agreed to before CECBA was amen- 1 ded. Art. 4.01(d) does not speak to an agreement of the par- i ties that they were referring to CECBA, / 1993. The non-bar- gaining unit members could enter the bargaining unit some ( i 1 28 .I Ms. Pasieka, May 31. 1995 (cont'd): other way, for instance, by application to the Ontario Labour Relations Board or the Ontario Public Service Labour Rela- tions Tribunal. Art. 4.01(d) goes no further. It was inclu- ded in the collective agreement before the current agreement. h Mr. McArthur. June 2, 1995: 7 Mr. McArthur provided written submissions regarding the Charter prior to June 2, 1995 and made the following verbal submissions regarding interpretation on June 2, 1995. The essence of the grievance is that the union and em- ployer have agreed that these approximately 1,000 positions are within the scope clause. Additionally or alternatively, CECBA, 1993 compels their inclusion within the scope clause. From 1975 to 1984, the scope clause incorporated by reference the exclusions in CECBA, 1972. Since 1984, art. 1.01 of the collective agreement has incorporated by reference the exclu- sions in CECBA. The union has stated that the union and em- ployer have known the amendments would arise. Superficially, that is attractive, but it is too simplistic and is wrong on the facts. CECBA, 1993 removed the exclusions, not CECBA. The employer and the union agreed to maintain the exclusions in CECBA by retaining the reference to CECBA, rather than CECBA. 1993. If they had intended to incorporate the former exclusions, it would have referred to CECBA, 1993 when they signed the Memorandum in April of 1994. The agreement concluded in April, 1994 was the collec- tive agreement for 1993. S. 54(l) of CECBA, 1993 states: 54.-(l) A unit of employees that was a bargaining unit under the old Act immediately before the re- peal of that Act is an appropriate bargaining unit for the purposes of the Labour Relations Act until the description of the bargaining unit is altered under the Labour Relations Act. It provides that bargaining units predating the coming into force of CECBA, 1993 continue until dealt with under the Labour Relations Act. 25, .i Mr. McArthur, June 2. 1995 (cont'd): 54.-(2) Despite the Labour Relations Act, the des- cription of a bargaining unit referred to in sub- section (1) cannot be altered until after a collec- _- tive agreement is made following the coming into force of this section. S. 54(2) of CECBA. 1993 says that despite the Labour Rela- tions Act, the description of a bargaining unit cannot be altered until the making of a collective agreement after the section comes into force. CECBA. 1993 was proclaimed on February 14, 1994. No collective agreement has been effected since then. The Memorandum of Settlement signed April 20, 1994 was negotiated before CECBA, 1993 was proclaimed. s. 54 precludes any alteration of the bargaining unit until a col- lective agreement is reached which post-dates the date on which CECBA. 1993 was proclaimed. S. 54(l) and (2) are designed, along with the authority of the Ontario Labour Relations Board, to assess membership support and choice and votes, to preclude a sweeping-in to the bargaining unit of previously excluded positions. They provide an opportunity for the Ontario Labour Relations Board to assess the choices of employees affected by the CECBA, 1993 amendments. The intervenors have not taken part in the process of legislative change. Excerpts from the debates of the Legislative Assembly of Ontario for October 7, 1992, November 4 and 18, 1993, and December 2, 13 and 14, 1993 were prov,ided with regard to the intent of the legislature in enacting CECBA, 1993. On Novem- ber 18, 1993, at p. 4145 Mr. Mike Cooper (Kitchener-Wilmot) said About 9,000 civil servants who were previously excluded will be given the right to bargain collec- tively. That will reduce the level of exclusion from collective bargaining among Ontario Public servants from its current 25% down to 12%. Of those 9,000 workers I referred to, about 2,000 share a community of interest with an exis- ting bargaining unit represented by OPSEU. These employees will be assigned to that bargaining unit and will retain full seniority. The other 7,000 of the previously excluded will be free to unionize ..-.- Mr. McArthur, June 2. 1995 (cont'd): and choose their own bargaining agent, if it is their desire to do so. A limited number of public service positions will remain excluded from collective bargaining. These inc.lude judges, physicians, labour mediators, ministers' staff and employees who regularly give advice on public sector employment legislation. Under our CECBA reforms, employees who are ' eligible to bargain and who chose to organize will have the fullest range of labour rights, including the right to strike. However, the right to strike will be contingent on both parties reaching prior agreement to protect essential services. The pub- lic can therefore be assured that essential public services will not be threatened as a result of any strike or lockout. We are also proposing that some professional employees who currently have limited bargaining rights should be permitted to enjoy all of the pro- visions of the new act. These professional em- ployees will be guaranteed separate bargaining units and full bargaining rights under this bill, again, if it is their desire to organize. These passages place an emphasis on the right to orga- nize and the right of choice. In the debates of December 2, 1993, at p. 4530, Mr. Silipo (Minister of Community and Social Services) stated . . . I believe what's reflected in this legislations is not just the result of long discussions that in- volve, yes, the major union that now represents most of the people who work in the public service, all of the employee associations, and in fact sets out a framework which allows, I think, for the on- going question of representation in the civil ser- vice in this province to be addressed in both a simpler way than exists now and in a way that con- tinues to respect the rights of every individual employee to determine, by and large, how they should be represented in collective bargaining with the government of Ontario. This indicates that CECBA is still protecting the choice of employees as to representation, with the'exception of the OPS group. Approximately 1,000 people, this group of formerly ex- cluded employees, were not asked what they want. The union argues that accretion results in them becoming members of Mr. McArthur, June 2. 1995 (cont'd): C.U.P.E., Local 1750. Nothing in CECBA. compels member- ship in C.U.P.E., Local 1750. CECBA. 1993 clearly intends to provide this group with choice. The union relies on the original certification and the subsebuent amendment of the scope clause. The certificate is spent once the first collective agreement is reached. The parties are free to amend their scope clause. There is no evidence of intention to amend the scope clause except the dropping of "1972" in 1984. The intervenors hope to see their choice preserved. The statute clearly permits it, along with the transition provisions, until the Ontario Labour Relations Board considers it. However, the Grievance Settlement Board is obliged to deal with this interpretation dispute. The union's grievance should be dismissed. Mr. McArthur also submitted the following material on interpretation: Wall and Redekon Corooration v. C.J.A.. 27 Locals [1989] 1 W.W.R. 183 (B.C.C.A.), Lor-Wes Contractinq Ltd. v. The Oueen [1986] 1 F.C. 345; Ch. 19, and excerpts from ch. 18 of Dreidaer on the Construction of Statutes. Mr. Barrett, June 2. 1995: This case is easier than the cases of merger and succes- sorship which the employer attempted to distingish. The union interpretation will not result in the imposition of a new em- ployer who could not have considered ,the implications of a scope clause negotiated by a previous employer. Accretion involves an expansion of the bargaining unit through the application of the recognition clause to a change in circumstances, whatever the change may be. The Canada Labour Relations Board cases state the manner in which that Board uses accretion. .That Board includes em- ployees previously unrepresented for a variety of reasons, e.g. due to a change in technology, or it will move employees from one bargaining unit to another. Mr. Barrett, June 2, 1995 (cont'dl: In Canadian Pacific Limited (1984), 8 C.L.R.B.R. (N.S.) 378 (Johnson) the union's argument that movement from one union to another violated the Charter was rejected. Revelstoke, supra, was a complaint to the Saskatchewan Labour Relations Board about a violation of that Act. Essen- tially, the allegation was that the legislation was violated as a result of non-payment of dues, and the employer's refu- sal to bargain regarding disputed employees violated s. 11 of the legislation. The Saskatchewan Labour Relations Board's jurisdiction came from its original certification order. At issue was whether the disputed owner-operators were included in the original certificate. The Board concluded that the Act had been breached. The Court of Appeal found the Board had been in error in so concluding, and found that in 1972, the owner-operators were not covered by the legislation. At page 43, supra, the court stated that one of the grounds re- lied on was that the Board acted "either without or in excess of its jurisdiction" in concluding that an unfair labour practice had occurred in relation "to employees not included in the appropriate unit as determined by the certification order". At p. 45, the court determined that the certifica- tion order governs who are employees within the unit. In this case, the only issue is the interpretation of the col- lective agreement. Pages 45-46 of Revelstoke indicate that the Board could only enforce a certification order and that the Board did not direct its mind to which employees were included. The issues determined in Revelstoke have nothing to do with the issue before you. The collective agreement in Bulk Carrier, supra, was held to have referred only to those regulations in effect when the agreement was made. Smith v. South Wales, supra, took the same view. Bell Canada, supra, takes the opposite view. It says the parties are presumed to have intended the collective agreement to have incorporated subsequent legisla- tive changes, especially in view of their long-standing col- Mr. Barrett, June 2. 1995 (cont'd): lective bargaining relationship. Those cases require recon- ciliation. Arbitrator MacDowell's reasoning in Bell Canada is more persuasive. With reference-to B.C. Telenhone, in 1947 the Canada Labouk Relations Board certified an "all-employee unit" with, certain usual exclusions e.g. managerial. Unlike the instant case, the parties subsequently altered the scope clause so that it included specific classifications. Over time the em- ployer created new clasifications which it maintained were excluded because they were not specifically listed in the scope clause. The union in B.C. Telelshone knew that on the existing wording of the scope clause it could not win, and applied for a variance of the unit, on the basis that the al- teration it sought was,consistent with the scope of the ori- ginal unit. The Board held that because the union had nego- tiated the all-employee scope clause into an "only as listed" clause, it would not rescue the union. That is what the employer asks you to do in this case. The board should accept the unit as bargained. Altering or varying the scope of the bargaining unit exceeds your jur- isdiction. The board in B.C. Teleohone reviewed policy con- siderations. The employer took those considerations out of their context of the board declining to salvage the union, which had agreed to a contraction of its own unit. This has no application in this case. At issue before this board are the considerations of Arbitrator Shime in Canadian Aooliance and of Arbitrator Burkett in Crown Cork & Seal. The employ- er's remarks were made and rejected as irrelevant to the task in the accretion cases. The C.L.R.B. decided in Telealobe Canada, 119791 3 Can L.R.B.R. 86, 32 di 270, 80 C.L.L.C. 16,025, that policy con- siderations are of no interest where the variance sought is within the scope of the original certificate. In thirteen collective agreements between the parties since 1975 the language of Art. 1 .Ol has always meant that if “I.-- 3, 3 4 Mr. Barrett, June 2, 1995 Icont'dj: the provisions of CECBA were altered, the bargaining unit would be altered. In 1984, when the parties agreed to remove "1972" from Art. 1.91, CECBA had been enacted, and they knew what it meant. The intervenors and the employer argue that I by removing "1972" the parties evidenced an intention contrat ry to the union's submitted position. Whenever legislation is introduced, when the statutes are consolidated into the Revised Statutes of Ontario (R.S.O.), the reference to the date of the statute in its short title is dropped. The R.S.0.s were published before the parties negotiated the 1984 agreement. "1972" was deleted from Art. 1.01 for no other reason. No other reason has been suggested. CECBA had been amended when the parties signed the Memo- randum of Settlement on April 20, 1994, which lead to the agreement for the 1993 calendar year. In April of 1994 the parties were negotiating a collective agreement which had ex- pired December 31, 1993. They must have known that the terms and conditions would apply for a considerable time thereafter and that the freeze in the Social Contract Act would apply. As in Smith, supra, the issue is not the period of the agree- ment; the issue is what the parties had in mind. The following rhetorical question may be posed--if the parties intended to cover formerly-excluded employees, why did they not deal with it in their collective agreement? If that approach were applied, the decisions of Arbitrators Shime, Weatherill and Burkett would have been different. The parties knew CECBA had taken effect February 14, 1994 when they agreed to the terms of the 1993 agreement,, and knew that they would have to sort out the effect of their decisions. It is to be expected that the legislation does not say these employees are part of this bargaining unit. It is the collective agreement which states that. The G.S.B.'s func- tion is to interpret and apply the collective agreement. The legislation leaves the union and employer to determine what the scope clause will say. This legislation only provided <c- 35 ‘i r. Barrett, June 2, 1995 (cont'd!: choice to the 7,000 OPS employees who the legislature thought would be included in the bargaining unit. The government did not address WCB employees. On October 7, 1992, David S. Cooke (Chairman of the Management Board of Cabinet) stated during the debates of the Legislative Assembly of Ontario (at p. 2490) Changes to CECBA will extend bargaining rights to approximately 7,000 employees. These employees will be given the right to choose--and I repeat, those employees will be given the right to choose-- if they want to bargain collectively or join a union, and if so, who will represent them. Allow me to give these numbers some context. Of the approximately 90,000 employees working in the Ontario public service, about 18,000 of them do not have the right to bargain under the current act. We estimate that about 2,000 of those 18,000 should always have been allowed to bargain. Of the remai- ning 16,000, we estimate that changes to the act will extend bargaining rights to about 7,000 em- ployees. These employees will be given the right to choose who will represent them. That leaves 9,000 employees who will remain ex- cluded from the collective bargaining process. Among this number are individuals who supervise staff, hire, fire and approve merit. Also excluded are positions unique to the crown; for example, mi- nisters' staff, strategic policy advisers, judges and mediation staff at the Ministry of Labour. This makes the matter clear. The legislative history only supports the union's position. With respect to s. 54, the transitional provisions, the parties made no alteration to the bargaining unit when they signed the April 20, 1994 Memorandum. They renewed the col- lective agreement. The recognition clause was the same. The fact that the collective agreement pertained to, 1993 is irre- levant. Consequently, the effect of s. 54(2) must be deter- mined. 4 The Grievance Settlement Board cannot consider labour relations arguments in support of accretion. The fact that the intervenors do not want to be included in the bargaining unit and the elimination of competition with another.bargai- . . . . Mr. Barrett, June 2. 1995 (cont'd): ning unit are not relevant. These employees are not prison- ers. They are in an open period, and can make displacement ~ or decertification applications, or seek a carve-out. The following principles can apply to this determina- tion; a) give effect to the agreement of the parties, despite the Social Contract Act; b) determine the scope of the bargaining unit; c) agreed-to provisions should be upheld, even though the employer has policy reasons for not wanting to live up to them. The employer carefully acknowledged it would be more advantageous for it if there were one big unit to deal with. That constitutes a policy argument contrary to the employer's stated position. The principles that ought to be applied in a dispute involving the interpretation of a collective agreement, as opposed to a will or a private contract, must be determined. The courts have recognized the unique nature of collective agreements, which recognize an ongoing collective bargaining relationship. Collective agreements should be interpreted in a way which incorporates legislative change. Parties to such agreements should limit the effect of legislative changes, if they so desire, in the wording they choose. Art. 4.01(d) and the Memorandum,signed April 20, 1994 are relevant to the interpretation of Art. 1.01. Art. 4.01 (d) was negotiated in respect of the 91-92 agreement. It was negotiated because CECBA reform was being discussed and the parties anticipated that people would be moved' into the unit and they needed to be accorded seniority: The existence of Art. 4.01(d) supports the union's position. The employer says it was intended to enable those employees to seek what- ever status they wanted. The need to organize formerly ex- cluded employees is also a possibility, but Art. 1.01 pre- cludes that. Clearer language in Art. 4.01(d) would be re- Mr. Barrett, June 2. 1995 (cont'd): quired to mean that formerly excluded employees were now organizable but not members of this unit. In the event that the board finds for the union, it should remain seised with regard to implementation. * , The Board's Analvsis: al The Case Law: In 22, supra, Arbitrator Weatherill wrote: The question . . . is not whether Messrs. Brown and Mead ought to be included in the bargaining unit, but simply whether they do come within it as it is defined in the collective agreement (emphasis added). We think that this approach is the correct one to take in this case. The issue is one of interpretation of both the statute(s) and the language of the collective agreement and their impact on one another. In Bell Canada, supra, at p. 187, Arbitrator MacDowell stated that the parties' collective agreement contained the following art. 36.01: In the event of any provision of this Agreement or of any of the practices established hereby being or being held to be contrary to the provision of any applicable law now or hereafter enacted, this Agreement shall not be nor ,be deemed to be abroga- ted but shall be amended to [sic] as to make it conform to the requirements of any such law. Thus, in Bell Canada, the parties stated in another article of the Agreement their intention that the provisions of their collective agreement be construed in light of the law- as it stood at any given time. No such provisgon or express in- tention exists in the instant agreement or in the evidence before us. At p. 415 in Bulk Carriers, supra, the board noted the following article 71.1 in the collective agreement: Statute Precedence 71.1 In the event of legislation being enacted sub- sequent to the signing of this Agreement, invalida- ting the Application of any Article or Appendix hereto, the relative section only of this Agreement shall be nullified. It also noted, at p. 415, then s.28(1) of the Canada Labour - Code: 28(l) This Part applies notwithstanding any other law or any custom, contract or arrangement, whether made before or after the 1st day of July 1965, but nothing in this Part shall be construed as affec- ting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to him than his rights or benefits under this Part. It concluded that art. 71 obliged it to take the new legisla- tion and s. 28(l) thereof into account to properly dispose of the dispute. It concluded that art. 26 imported the regula- tions only as they stood at June 22, 1971, when agreed to, and not as they might become. It stated, at p. 415, It is of some importance to note that the imported regulations were not modified or changed, but were accepted by the parties as they had been issued. It stated that the purpose behind s. 28 of the Code and the regulations was the improvement of the situation of employees regarding hours of work and overtime, and intended to replace the previous enactment and regulations, and that since art. 26 of the agreement embodied the old regulations, art. 71 of the agreement nullified them. Close reading of this case discloses a dispute as to whether the new enactment and regu- lations did in fact improve the hours of work and overtime of the bargaining unit members affected by them and that the case turned on the absence of words in the collective, agree- ment to the effect that in the event of sctatutory amendment, the greater benefit will prevail. Words to that effect would have enabled the board to determine which was the greater benefit. In view of the emphasis placed upon art. 71 of the collective agreement, Bulk Carriers does not stand for the principle that in the absence of words to the contrary, the f parties are presumed to have intended statutory incorpora- tions to mean that the parties intended to incorporate only the statute and/or regulations as it or they read at the time the agreement was reached. The case turned on the literal meaning of the terms to which the parties had agreed. 3. The principle of accretion of employees to a bargaining unit is well-recognized in the jurisprudence of Ontario and other jurisdictions in which bargaining units are described as being comprised of all employees of a particular employer or within a particular geographic area, or of particular locations, "save and except" certain stipulated exclusions: Canadian ADoliance_, supra; Crown Cork & Seal, supra; Interna- tional Chemical Workers and Emerv Industries, supra; Alliance Emolovees' Union, supra. The principle of accretion is not diminished by the fact that a change in legislated exclusions may constitute the change in circumstances of formerly exclu- ded employees. The fact that the effect of the change may result in a sweeping-in to the bargaining unit of formerly excluded employees without canvassing their wishes, and the number of those possibly affected, does not necessarily pre- clude the application of the principle of accretion. An in- terpretation of the amendments to CECBA and the effect of them on the interpretation of the relevant provisions of the collective agreement will assist in determining this dispute. In Be Grev Countv Board of Education and O.S.S.T.F. (19831, 12 L.A.C. (3d) 412, Arbitrator Teplitsky considered the issue of "onus" in cases which turn on the construction of a collective agreement. He stated, at pp. 416-17: In my respectful opinion, onus has no role to play in the interpretation of collective agree- ments. The true meaning of any contract is a ques- tion of law and there. is no onus ordinarily applic- able in resolving questions of law. On the other hand, with respect to factual issues there is an onus of proof, ordinarily on a balance of probabi- lities. Some confusion has entered into this area because there can be factual questions arising in the context of interpretation of agreements in respect of which "onus" would be relevant. For 4 0 4 example, a party adducing evidence in aid of con- struing an ambiguous provision must satify the bur- den of proof with respect to the facts it seeks to prove in this connection. More fundamanetally, in the case of oral agreements, for example, the party asserting a particular term of such an agreement has the onus of proving that term. Older cases such as Adams v. Acheson (1916), 26 D.L.R. 633, IL which could be construed to support a contrary , proposition are, upon closer examination, cases of oral agreements where there was a dispute about what the terms of the agreement were. As I have already said once the "agreement" is ascertained (a question of fact), its interpretation raises a question of law in respect of which there is no onus. The matter may be tested by considering the absurdity that would result if the interpretation of a collective agreement could vary depending on whether the union or the employer happened to be grievor. As a practical matter, where there is a conflict between the parties on an issue of inter- pretation, each party is asserting its own inter- pretation, and there is no more reason to assign the onus to the one party as opposed to the other. In their ongoing relationships they have a shared interest in having the dispute concerning construc- tion of their collective agreement resolved. . ..arbitrator Dunn in Re Peter Austin Manufac- turing Co., A Division of Kelton Corp. Ltd. and Kelton Corp. Ltd. and Int'l Union of Doll & Toy Workers, Local 905 (1980), 24 L.A.C. (2d) 289 ap- pears to have reached the same conclusion in the following passage found at p. 291: Contending that the onus is on the union to persuade this board of its contention, the employer suggests that we should dismiss the grievance if we find that we cannot accept the interpretation offered by either party, but may modify one or the other according to what we consider to be the intention of the par- ties, garnered from a reading of the clause in question in the light of their whole agree- ment. The " onus " of a party urging a meaning to a contract clause is not the same as the onus of a claimant to provide a preponderance of evidence to prove a case when the evidence conflicts, or sufficient evidence to support its claim is not produced. Here the evidence is the contract itself, and the facts are not in dispute. It is up to us to make the best of the somewhat baffling wording of the amend- ment to the collective agreement. Only should , - _- *I I 41 we be forced to conclude that the article in question defies interpretation would we be obliged to simply dismiss the grievance. . . . in every instance management interprets the collective agreement in fashioning its course of action. Its opinion as to the meaning of the col- * lective agreement is no more nor less than its opinion. A board of arbitration must decide the ' true meaning of the collective agreement. It can- not, in cases where the meaning is uncertain or the provisions ambiguous, abdicate its responsibility to adjudicate by deferring to management's opinions and upholding its interpretation if it is reason- able. . . . Arbitrator Michel Picher followed the above reasoning in Re CN/CP Telecommunications and Communications Workers (1985) 18 L.A.C. (3d) 78, at pp. 92-93. He said, at p. 93 There are sound policy reasons to prefer the approach taken by the board of arbitration in the Grey County case. The need for stability in indus- trial relations is central to the statutory estab- lishment of a system of final and binding arbitra- tion. Stability would, however, be undermined if the outcome of a grievance dealing purely with the interpretation of an article must depend entirely and fortuitously on which party is the grievor.... There is some arbitral difference of opinion respecting onus in interpretation cases. Arbitrator Palmer did not share these views in Re Peterborouah Utilities Com'n and Int'l Brotherhood of Electrical Workers, Local 1965 (1973), 4 L.A.C. (2d) 383, and in Palmer & Palmer, Collective Aareement Arbitration in Canada (3rd Ed.), (Butterworths: Markham, Ont., 1991). This appears to be the first occasion in this province in which a legislative amendment had the potential to impact upon the composition of a bargaining unit and result in the automatic inclusion of previously excluded positions. Not unexpectedly in such a situation, there are no cases exactly on point, and those provided are of only general assistance. Further, no over-riding principle of interpretation or pre- sumption, that a bare reference to a statute in a collective v.e -.. 42 .f agreement or a contract includes all subsequent amendments to that statute, arises from case law. b\ The Statutorv Amendments As stated in argument, the exclusions from the defini- I tion of "employee" in the old CECBA, i.e. R.S.O. 1990, c. 50, were amended in CECBA. 1993, i.e. S.O. 1993, c. 38, which came into force on February 14, 1994. S. 24 of CECBA, 1993 provides: 24.-(l) The Lieutenant Governor in Council may designate the Ontario Public Service Employees Union as the bargaining agent for the six bargain- ing units referred to in subsections 23(2). (2) The Ontario Public Service Employees Union represents the employees in those bargaining units until it ceases, under the Labour Relations Act, to represent them. In these provisions the cabinet retains the discretion to de- signate OPSEU as the bargaining unit for six bargaining units of Crown employees who are public servants as defined in the Public Service Act. The balance of the provisions of CECBA, 1993 do not identify the bargaining unit(s), if any, in which formerly exciuded employees would be included, automatically or by any other method. The legislature's silence may be viewed as part of the deliberate structure of the statute and intention of the legislature. It is possible that by its silence as to the bargaining unit(s) of formerly excluded employees, the legis- lature intended, depending upon the precise wording of each scope clause of the applicable collective agreements and upon the "new exclusions", and upon other factors such as those indicated by the parties herein in Ex. 19, that the employees of Designated Agencies in O.Reg 57/95 under the Public Service Act might automatically become members of the Agency- applicable bargaining unit. The legislature's silence ren- ders its intention regarding WCB employees somewhat elusive. n The board is obliged to search for that intention bearing in mind the rules and conventions of statutory interpretation. One general rule of statutory interpretation is that Hansard and the debates of the provincial legislature are not to be consulted. Canadian courts have on occasion departed from that general rule where the debates gave a "clear indi-* cation of the evil sought to be remedied" and thereby streng- thened the court's interpretation of the statute: Lor-West Contracting, supra, at p. 355; Wall and Redekon, supra; Ruth Sullivan, Dreiduer on the Construction of Statutes, 3rd ed., ch. 18 and 19, (Markham: Butterworths Canada Ltd., 1994). There is a substantial debate as to the appropriateness and utility of consulting such debates, reliability being a par- ticular concern: Sullivan, supra, pp. 431 - 439. The relia- bility of the statements in the debates as a reflection of the legislature's intention depends upon many factors, inclu- ding the clarity, as well as the source, of the statement and the source's political affiliation. The debates must there- fore be approached with some caution. We have reviewed the statements in the Legislative As- sembly provided by the parties. The statements as a whole, viewed against the language of the old CECBA and CECBA, 1993, provide no clear indication of "the evil sought to be reme- died" by the amendments to s. 1 of the old CECBA, aside from the obvious intention to no longer exclude some employees from the collective bargaining process, nor do they reveal the scheme or intention of the legislature regarding the ef- fect that the amendments would have on this bargaining unit's composition. They are consequently of little help in resoiv- ing this dispute. In attempting to discern the legislature's intention, the preamble, section and marginal headings of a statute may be considered. CECBA, 1993 contains no preamble, and the section and marginal headings provide no guide as to the legislature's intention on this point. On the face of the amendments to s. 1 of CECBA, 1993, and the definition of Crown Employee in s. 1 of the Public Service Act, R.S.O. 1990, c. P.47, "Crown employee" means a person who is, (a) . . . (b) employed in the service of an agency of the Crown that is designated in the regulations; , and 0. Reg. 57/95, Schedule 2, the board can only conclude that by its amendments the legislature intended formerly excluded WCB employees to fall within the new definition of "Crown Employee", unless they fall within one of the exclu- sions in s. 1 (a - g) of CECBA.. There is no evidence establishing that the legislature or those directing the drafting of the statute considered or were aware of the effect of the amendments on the recognition clause in this or any other collective agreement. Aside from ss. 22 and 23, which do not deal with WCB employees, there is no evidence before this board to suggest that the legislature or those directing the drafting of the statute were aware of or considered the possible impact with respect to what bargaining unit, if any, formerly excluded employees might automatically belong as a result of the amendments in this and other recognition clauses. The amendments to s. 1 of CECBA, 1993 have these possible interpretations/outcomes: 1. formerly excluded WCB employees who do not fail within the exclusions from the CECBA, 1993 definition of "Crown employee" automatically fail into C.U.P.E. Local 1750 owing to the combined effect of the amendments in s. 1 of CECBA, 1993, the operation of the recognition clause in the collective agreement and the application of the principle of accretion; or 2. formerly excluded WCB employees who do not fall within the exclusions from the CECBA, 1993 definition of "Crown employee" are now Crown 45 4 employees who are recruitable into a bargain- ing unit (including C.U.P.E. Local 1750) or another bargaining unit or units or other rep- resentative organization or organization(s). Both interpretations would support solid labour reia- z tions principles which were presented in argument. The board acknowledges that the provisions of CECBA, 1993 respecting the exclusions are as consistent with the employer's view that formerly excluded employees are now simply "Crown em- ployees" who do not automatically fall into the bargaining unit, as they are with the union's view that formerly exclu- ded employees automatically fall into the unit. S. 54 (1) and (2), the transition provisions, (set out at p. 22, infra) are of no particular assistance, as the par- ties reached the terms of the 1993 agreement after CECBA. 1993 came into effect. The board is doubtful that if the union's interpretation is correct, an "alteration" of the bargaining unit within the meaning of s. 54(2) will have occurred. However, if the union's interpretation is correct and the bargaining unit was altered within the meaning of s. W2), it was altered by the combined effect of CECBA, 1993 and Art. 1.01. The board interprets s. 54(2) as permitting the alteration of a bargaining unit "after a collective agreement is made following the coming into force of this section". The section and the Act came into force on Feb- ruary 14, 1994. An alteration is permitted after a coliec- tive agreement is made after February 14, 1994. The parties arrived at a collective agreement for 1993 on April 20, 1994. Having done so, any prohibition as to the alteration of a bargaining unit in s. 54(2) has no application to these par- ties. S. 54(2) stipulates no requirement that the collective agreement reached after February 14, 1994 apply prospectively i.e. after February 14, 1994. We turn now to the parties' agreements with a view to determining the proper construction of the reference to CECBA in Art. 1.01. cl The Collective Agreement: The Statement of Fact and submissions reflect a dispute as to the parties' intentions as to the meaning of Arts. 1 and 4 of their collective agreement. This board must deter- L mine the probable intention of the parties with respect to 1 meaning of "CECBA" in Art. 1.01, on the language of the collective agreements and Memoranda of Settlement and the submissions and other documentary material. In the October 1, 1990 to September 30, 1991 agreement, and since the October 1, 1984 to September 30, 1985 agree- ment, if not earlier, Article 4 on seniority had provided: 4.01 Senioritv Definition For all.employees in the bargaining unit as of May 31, 1977, seniority as referred to in this Agreement shall be based upon and shall mean length of continuous service of the employee with the Employer. For all new employees after May 31, 1977, seniority, as referred to in the Agreement, shall be defined as the length of continuous service in the bargaining unit. Seniority is atttained on the successful com- pletion of the employee's probationary period, at which time his seniority shall be effective from the most recent date of employment with the Employer. In the 91-92 agreement, the parties amended Article 4 in both structure and content to provide: 4.01 Senioritv Definition (a) For any employee appointed to a,position in the bargaining unit after May 31, 1977, senio- rity, as referred to to in the Agreement shall be defined as the length 9f service from the most recent date of appointment to the bargaining unit. (b) Effective the Date of Ratification of this Agreeement, for all employees in the bargain- ing unit as of May 31, 1977, seniority as re- ferred to in this Agreement, shall be based .,-- upon and shall mean length of continuous ser- vice of the employee with the Employer. It is understood, however, that for the purposes of application of this Article, any person who is a non-bargaining unit employee and not a mana- '. ger or above who is appointed to a position in the bargaining unit and who was employed in the bargaining unit as of May 31, 1977, shall be entitled to only that portion of their , seniority, if any accumulated as an employee in the bargaining unit or a position which would have been in the bargaining unit had the bargaining unit existed at that time. (c) On the successful completion of the probation- ary period, an employee will be credited with seniority from the most recent date of employ- ment into the bargaining unit. (d) Employees in positions currently excluded from the collective bargaining unit will receive seniority credit for all continuous service should their position be deemed suitable for inclusion in the bargaining unit. The purpose of the introduction of the text of Art. 4.01(d) above is very much in contention. No evidence was presented as to the positions and intentions of the parties' negotiators in reaching the terms of the 91-92 and 1993 col- lective agreements. The parties were agreed that they were aware of a June, 1991 consultation paper regarding proposed amendments to CECBA. That paper does not form part of the evidence. This board does not know what specific amendments the parties' negotiators anticipated as a result of the con- sultation paper, and what, if any, discussions occurred about the amendments while negotiating the 91-92 agreement and the 1993 agreement. The entire agreement for 1993 is not in evidence. The board can conclude from the language of Art. 4.01(d) that for the 91-92 agreement, the parties, agreed that- if for any reason persons in positions formerly excluded from the Local 1750 bargaining unit entered the unit, their positions having been deemed suitable by unspecified authorities, they would carry their individual service dates with the WCB into the unit. Aside from the existence of the June, 1991 consul- I m-- 48 7, sultation paper there is no evidence before this board that during the 91-92 negotiations the parties considered and/or discussed bow and why formerly-excluded employees would enter the bargaining unit and no evidence as to their reasons for amending Art. 4.01(d) in the 91-92 agreement and not in any earlier agreement. . In view of the parties' awareness of the June, 1991 consultation paper which raised reform of the exclusion provisions in CECBA, and in view of the long negotiating history of the parties, the board concludes, on balance of probabilities, that the parties' decision to amend Art. 4.01(d) within several months of the June, 1991 consultation paper was not merely coincidental with the issuance of the paper and did not result solely from a desire to address the usual movement of employees from non-bargaining-unit to bar- gaining-unit positions. Within the parameters provided by the parties, in the absence of viva vote or any other docu- mentary evidence as to the parties' reasons for amending Art. 4.01(d) at that time, the existence of the consultation paper proposing amendments to the excluded groups in CECBA obliges the board to conclude that on balance of probabilities, Art. 4.01(d) was amended primarily in contemplation of the entry into the bargaining unit of employees in formerly excluded positions as a result of those anticipated statutory amend- ments. The board is obliged to conclude, on the Statement of , Fact, that both parties were aware of impending amendments to CECBA which would alter the identification/citation of the statute and which would alter the composition of the bar- [ gaining unit by repealing certain exclusions and amending others. It is obliged to conclude, on the Statement of Fact, that during the negotiations for the 91-92 agreement, the employer gave no indication that it intended to maintain the f exclusions in the old CECBA, R.S.O. 1990, c. 50 in relation to Art. 1.01, despite the parties' mutual anticipation of I amendments, which, given the wording of Art. 1.01, could amend the composition of the bargaining unit. r f i / ! i I ’ 49 . ..-- 4 On the Statement of Fact and submissions, the board concludes that during the negotiations for the 91-92 and 1993 agreements, the union anticipated that WCB employees formerly excluded from the bargaining unit by CECBA would automatical- ly fall within the bargaining unit because of the combined effect of the amendments to the exclusions and Art. 1.01, and that the union anticipated thatthe size of the unit would thereby increase. While there is no evidence that the union directly communicated that expectation to the employer, there is no evidence that during the negotiations for the 1993 agreement the employer communicated to the union the view that it advanced before this board. The absence of evidence as to what the parties intended and their ostensible silence with one another during negotiations as to the impact of CECBA, 1993 on the recognition clause provides a difficult basis for both parties' arguments as to their different intentions during negotiations. It is not uncommon for parties to a collective agreement to incorporate legislation into their agreement, with the in- tention that the legislation be read on an ongoing basis, in- corporating all subsequent amendments. However, where such an intention is found, the parties have either expressed that directly in the terms of their agreement, or other provisions in the agreement lead persuasively to the conclusion that that was their intention. There are no such provisions in the 91-92 and 1993 agreements or any,other agreements of the parties. In this case, both parties were free to seek agree- ment to additional language to clarify their intention and remove any doubt. The union does not rely upon an oral representation by the employer's representatives that they*anticipated that the amendments to CECBA, 1993 would result in an automatic accre- tion to the bargaining unit of some or all formerly excluded employees and that in reliance upon that statement its repre- sentatives concluded that no further wording was necessary to give effect to that shared intent. By the same token, the employer does not appear to have disclosed to the union its view that "CECBA" in Art. 1.01 would, after February 14, 1994, continue to refer to R.S.O. 1990, c. 50, or to have relied on an oral repr,esentation by or silence of the union indicating to the employer that the union agreed that after February 14, 1994, "CECBA" in Art. 1.01 would refer to R.S.O- 1990, c. 50. Having concluded that during the 91-92 negotiations the union and the employer were aware that the legislature was considering amendments to the exclusions, the board turns now to the negotiations for the 1993 agreement, bearing in mind that the language of Art. 1.01, giving C.U.P.E. Local 1750 the exclusive right to represent "all employees" of WCB, "save and except" exclusions in CECBA, remained unchanged. The board observes that had the amendments come into force during 1993, the issue as to whether previously statu- torily excluded positions fell automatically to be represen- ted by this bargaining unit would have crystallized with immediate impact upon the manner in which "CECBA" in Art. 1.01 was read. Although the last agreement reached expired December 31, 1993, before the amendments to the exclusions came into force, this board is obliged to determine the mean- ing the parties intended be given to "CECBA" in Art. 1.01, in light of the amendments in S.O. 1993, c. 38, in order to pro- vide the parties a final resolution of their dispute and pro- vide them some guidance as to how it will be interpreted in future if they do not agree to amend it. The parties are free to amend Art. 1.01 in their agreement covering the peri- od after December 31, 1993, if the interpretation reached by this board is not to their satisfaction. Although, since the dispute before this board arose under an agreement the effec- tive period of which expired prior to the coming into force of the subject amendments, the dispute may be characterized as premature, such was not argued. Nor was it argued that the OPSLRT (now the OLRB) was the more appropriate forum under Art. 1.03 for the determination of the issue(s) before this board. The board presumes that the union and employer were and are knowledgable and informed parties to their collective agreement negotiations. It is evident from the Statement of Fact that the parties knew during the negotiations for the 7 1993 agreement, and particularly on February 14, 1994 and thereafter, that CECBA, 1993 had come into effect. The board is therefore obliged to conclude that the parties were aware that as a practical matter, difficulties could and would arise in future as to which employees should be included in the bargaining unit after February 14, 1994 in the absence of mutuality between them as to what act "CECBA" in Art. 1.01 referred after February 14, 1994. This would have been self- evident to the parties'despite the fact that the agreement being negotiated in early 1994 applied to the already-expired period January 1 to December 31, 1993. On February 14, 1994 the parties negotiated a Memoran- dum of Settlement which was not ratified. That Memorandum contained an Art. 4.01(c) which contemplated what would occur after December 31, 1993 in respect of the seniority of for- merly excluded employees who might enter the bargaining unit. As there is no evidence as to why the Memorandum containing an amended Art. 4.01(c) was rejected, the board can draw no conclusion as to the reason the amended Art. 4.01(c) was not retained. In 1993-94, the parties had had a lengthy bargaining history of about 18 years. Art. 1.01 had been in the collec- tive agreement since 1975, with one modification in 1984-85, in which "1972" was deleted from the reference to CECBA. The board accepts the union's submissions as to the reason the parties deleted reference to "1972" in the recog- nition clause of the 84-85 agreement, i.e. to bring the sta- tutory reference into conformity with the short title of CECBA in the Revised Statutes of Ontario, 1980. . Since the 1984-85 agreement, Art. 1.01 has provided: ARTICLE 1 RECOGNITION 1.01 The Employer recognizes the Canadian Union of Pub- lic Employees Local 1750 as the exclusive bargain- L ing agent for all of its employees, save and except supervisors, persons above the rank of supervisor,' and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act. The board concludes that from 1984 until the publica- tion of the Revised Statutes of Ontario, 1990, by their refe- rence to CECBA in Art. 1.01, the parties intended to refer to R.S.O. 1980, c. 108, and that thereafter, until February 14, 1994, by that continued reference, they intended to refer to R.S.O. 1990, c. 50. Had either party been aware of any difference of opinion as to what "CECBA" in Art. 1.01 would refer to after February 14, 1994, the board is obliged to conclude that, as experien- ced and knowledgable parties with a long history of negotiat- ing, they would have discussed that difference of opinion. The submissions and the limited Statement of Fact imply that no such discussions occurred. Accepting that no such discus- sions occurred, the board is of the view that if other know- ledgable and experienced negotiators had objectively consi- dered the terms of the parties' 1993 collective agreement, and the fact that it was reached after February 14, 1994, the date upon which CECBA, 1993, S.O. 1993, c. 38 came into effect and the fact that for some 9 years since 1984 the par- ties had maintained the same generic reference to CECBA in Art. 1.01, they would have concluded that over that period the parties had silently and implicitly agreed'that whatever exclusions the legislature enacted during the life of their agreements as they existed from time to ;ime would determine, within the language of Art. 1.01, the composition of the bar- gaining unit, and they would have concluded that in the ab- sence of an amendment to Art. 1.01, the parties probably in- tended that the words "CECBA" in Art. 1.01 implicitly inclu- ded the words "and any other successor acts or amendments thereto" or words to that effect. This board so concludes. The absence of any indication in the Statement of Fact that during the negotiations for the 1993 agreement, or at any time prior, the employer explicitly or implicitly reserved a right to reject subsequent amendments to the statutory exclu- sions in R.S.O. 1990, c. 50, supports this view. The board therefore concludes in all the circumstances of this case, that at the time that the 1993 agreement was reached, which is the operative time for the determination of shared intention for the purposes of construing a collective agreement, on balance of probabilities the parties shared the intention that "CECBA" in Art. 1.01 was to be read as impli- citly including the words "and any other successor acts or amendments thereto" or "as amended from time to time" or words to that effect. This conclusion brings us to a consideration of the written Charter submissions of the intervenors and the union. Mr. McArthur provided: Retail, Wholesale and Deoartment Store Union, Local 544 et al. and Gov't of Sask., [1987] 1 S.C.R. 460, 87 C.L.L.C. 14,023; Public Service Alliance of Canada v. The Oueen in Riaht of Canada [1987] 1 S.C.R. 424, 87 C.L.L.C. 14, 022; Reference re Public Service Emolovee Relations Act (Alta.), [1987] 1 S.C.R. 313, 87 C.L.L.C. 14,021; Slaiaht Communications v. Davidson, [1989] 1 S.C.R. 1038, 80 C.L.L.C. 14,031; Professional Institute of the Pub- lic Service of Canada v. Northwest Territories, (Commisioner), [1990] 2 S.C.R. 367, 72 D.L.R. (4th) 1; Laviune v. OPSEU, [1991] 2 S.C.R. 211, 91 C.L.L.C. 14,029;rGustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), 66 D.L.R. (3d) 449, [1977] 1 S.C.R. 271; Hornbv Island Trust Committee v. Stormwell et al. (1988), 66 D.L.R. (3d) 449 (B.C.C.A.); Attornev General of Canada v. Laverv (1991), 76 D.L.R. (4th) 97 (B.C. C.A.); Cantor, Norman L., "Forced Payments to Ser- vice Institutions and Constitutional Interests in Ideological Non-Association", 36 Rutgers Law Rev. 3 (1983); Cavalluzzo, Paul J.J., "Freedom of Association and the Right to Bargain ~. Collectively" in Litiaatinu the Values of a Nation: The Canadian Charter of Riuhts and Freedoms, Winter 6, Elliott, 1 eds. (Carswell: Toronto, 1986); Emerson, Thomas I., "Freedom of Asociation and Freedom of Expression“, 74 Yale L.J. 1, No. 1 (1964); Etherington, Brian, "Freedom of Association and Compulsory Union Dues; Towards a Purposive Conception of a Freedom to Not Associate", 19 Ottawa L. Rev. 1 (1987); Mac- Farlane, L.J., "The Right to Freedom of Association and Assembly", Ch. 5,, Theorv and Practice of Human Riuhts (St. Martin's Press: New York, 1987). The union provided the following cases: Prime and Mani- toba Labour Board (1983), 3 D.L.R. (4th) 74 (Man. Q.B.); Pru- dent Bldu. Ltd. and Construction Workers' Union (1984), 13 D.L.R. (4th) 584 (Alta. Q.B.); 1 ries ICommissioner) (1988), 51 D.L.R. (4th) 292 (N.W.T.S.C.); Terminaux Portuaires v. Maritime Emplovers' Association WfW, 89 N.R. 278 (F.C.A.); Pinkerton's of Can. Ltd. and Cdn. Guards Assn. (1990), 8 C.L.R.B.R. (2d) 1 (Howe, O.L.R.B.); Arlington Crane Service v. Ont. (Min. of Labour) (1988), 56 D.L.R. (4th) 209 (O.H.J.). The board has carefully considered the above-mentioned written submissions and materials. No useful purpose would be served in setting out the written submissions in detail. While the board is not without reservations as to the wisdom of sweeping approximately 1200 people into this bargaining unit without consulting those people and without fashioning a means by which their wishes can be ascereained and accomoda- ted prior to C.U.P.E. Local 1750 exercising representation rights on their behalf, its function is not to second-guess the Ontario legislature. Its function is to interpret and apply the law to the terms of collective agreement as inten- ded by the parties. In respect of the Charter arguments, its function again is to consider, interpret and apply the current law to the collective agreement and to its effects. It is common ground that the Charter applies to CECBA .. and CECBA, 1993. The intervenors allege that the impact of CECBA. 1993 and the repeal and amendment therein of the ex- clusions contained in CECBA, as applied to Art. 1.01 of the V parties' collective agreement, will result in certain Charter breaches. Although Art. 1.01 is the ultimate cause of the alleged breach, the necessary reading of CECBA and CECBA, 1993 to determine the exclusions in Art. 1.01 before and after February 14, 1994, results in those statutes having a necessary and sufficient contribution to the circumstances the intervenors view as a breach of the Charter. The board therefore concludes that the Charter applies to this dispute. The intervenors alleged a breach of s. 7 of the Charter, as well as a breach of s. 2(d) "freedom of association". As the intervenors made no specific submissions regarding a breach of s. 7, this decision will not address such alleged breach, except to remark that a bare allegation of such a breach is insufficient to enable this board to conclude that a breach of s. 7 has occurred, and we decline to do so. In 1987, in Reference re Public Service Emolovee Rela- tions Act (Alta.), supra, the Supreme Court of Canada upheld provincial legislation which imposed a scheme of compulsory arbitration, which was challenged as a breach of freedom of association under s. 2(d) of the Charter. In P.S.A.C., sup- rat the same court upheld federal legislation which tempora- rily suspended compensation increases to salaries against the same challenge. In R.W.D.S.U. et.al. v. Gov't. of Sask., supra, it upheld provincial legislation which barred strikes and lock-outs in the dairy industry against the same chal- lenge. In each of these cases, known as "the trilogy", the majority of the Supreme Court of Canada consistently stated that "freedom of association" did not include the freedom to bargain collectively or to withhold services. .* 56 .c ‘i In 1990, in Professional Institute of the Public Service of Canada (PIPS1 v. Northwest Territories, supra, and in Miller, supra, the same court upheld a territorial legisla- tive scheme which gave one union which had been incorporated by the Territory the exclusive authority to represent nurses previously employed under federal authority whose employment had been transferred to the Territory, against a challenge as a breach of "freedom of association". The court did not explicitly recognize a freedom not to associate in that case. Sopinka, J. said, at p. 17, supra that no breach of the free- dom of association would be found where the legislative res- triction did not affect the establishment or existence of an association. He said that the "statutory monopoly" on repre- sentation of the nurses did not interefere with PIPS as an association or on the ability of the nurses to be members of PIPS. He said that collective bargaining, for which PIPS sought incorporation under the statute, is not a Charter- protected activity, and consequently, the legislated determi- nation of the bargaining agent was not a violation of Charter rights. The intervenors seek to rely upon a "freedom not to associate". That freedom was acknowledged to exist in 1991 in Laviune, supra, by one of the Judges participating in the decision of the majority, McLachlin, J., and by three minori- ty judges. Thus, four of the panel of seven in Laviune ac- knowledged to some extent the existence of a "freedom not to associatell within the "freedom of association" in s. 2(d) of the Charter. LaForest, J., speaking for the minority, cha- racterized it as a "freedom from compelled association" or "forced association". As McLachlin, J., did not so charac- terize the "freedom not to associate", and as LaForest, J. spoke for the minority in Laviune, the board is unable to concur with the intervenors' assertion that the right to choose with whom to associate for collective bargaining purposes (or avoidance of collective bargaining) is protected under s. 2(d) of the Charter, particularly in view of the decisions in PIPS and Miller, supra. Having ascertained that some members of the Supreme Court of Canada constituting a numerical majority in one case have acknowledged a- "freedom not to associate" or "negative freedom" , the board turns now to examine the intervenors' + allegations as to manner in which the amendments to the CECBA exclusions and Art. 1.01 interfere with that freedom. The intervenors assert that "the interpretation put for- ward on behalf of C.U.P.E., would foreclose the NBU employees from this very choice of forming or joining associations. . . . In this instance the NBU employees would not be free to asso- ciate with their peers, if they so choose, in the pursuit of their common goals." They also assert that The members of PACE have not participated in any organizing campaign where they were able to voice their views as to which organization and in what manner they would associate. Indeed, they were intentionally excluded from any such process. To sweep these people into an existing bargaining unit would foreclose any right of freedom of asso- ciation and, as will be argued, could not have been the intention of a democratically elected govern- ment. and "that their freedom to associate would be infringed by removing their right to choose at the initial juncture of their choice, during the formation of an association". In PIPS and Miller, supra, the Supreme Court of Canada expressed the view that the territorial legislative scheme which denied the nurses the right to choose which bargaining unit would represent them did not violate their freedom of association. In doing so, it implicitly concluded that this effect did not violate a freedom not to associate. The court was of the view that the scheme, which g&e the incorporated NWTPSA the exclusive right to represent the nurses in collec- tive bargaining did not violate s. 2(d) of the Charter be- cause it did not interfere with the nurses' rights to remain members of or associate with PIPS or any other organization or people with which they chose to affiliate. It must be borne in mind that the impact of the CECBA, 1993 amendments upon the composition of the C.U.P.E. Local 1750 bargaining unit by virtue of the language of Art. 1.01 -s and the interpretation this board has given to the reference to CECBA therein does not compel any of the employees in the formerly excluded positions to become members of the bargain- ing unit or to associate themselves with any of the goals of the unit against their will. Rather, it grants C.U.P.E. Lo- cal 1750 the exclusive right to represent their interests in collective bargaining. That authority is parallel to the authority in PIPS, supra, of the NWTPSA in relation to the nurses formerly represented by PIPS. The fact that the nurses were previously represented by another bargaining unit represents a factual difference from this case. However, that factual difference does not sufficiently differentiate this case from the application of the principles followed by the Supreme Court of Canada in that case. The formerly excluded employees are not precluded or foreclosed from seeking decertification of all or part of their numbers or of the C.U.P.E. Local 1750 bargaining unit as a whole, and/or forming an association or associations and seeking to have them certified as their bargaining agent or agents by the impact of CECBA, 1993 and this board's ruling. The impact of CECBA, 1993 and this board's interpretation of Art. 1.01 alters the status quo for the intervenors, and may behoove them to take positive action to alter their circum- stances. However, they remain free to participate in an organizing campaign or campaigns to seek their objectives, including non-representation. 4 In view of the Supreme Court of Canada's view in PIPS and Miller, supra, that a territorially imposed bargaining agent does not violate the freedom of association of a group of employees who express opposition to the imposition of that representation, and in view of the options for association and non-association which remain open to the intervenors, this board can find no violation of s.2(d) of the Charter resulting from the amendments to CECBA in S.O. 1993, c. 38 '- and their impact upon the composition of the bargaining unit by virtue of Art. 1.01. . * Decision For all the above reasons, the grievance succeeds. Unless amended, the reference to CECBA in Art. 1.01 is to be read as including the words "and all successor acts and amendments thereto" or "as amended from time to time" or words to that effect. Consequently, after February 14, 1994, unless Art. 1.01 is amended, C.U.P.E. Local 1750 is the exclusive bargaining a‘gent for the employees in the positions identified as "Employer Position -- BU" in Ex. 19, as well as for those employees it represented prior to this decision. The board will remain seised with respect to implementation. We would like to thank the parties' and intervenors' representatives for their excellent preparation and explora- tion of the issues. I . : Dated at Toronto this 13th day of May, 1996. "1 Dissent" (dissent to follow) Michael Milich Employer Nominee Union Nominee Dissent RE: Cupe, Local 1750 (Policy Grievance) and the WC6 GSB# 1029194 I cannot concur with my colleagues in their decision in the above matter. As 1 understand it, the jurisdiction of this panel flows out ot the collective agreement under which the grievance before was raised. In this instance, the grievance dated August 4,1994 was raised under the Collective Agreement between Cupe, Local 1750 and WCB effective from January 1, I993 to December 31, 1993. Apparently, although expired, it continues in force until such time as the parties negotiate a new collective agreement. Although the collective agreement for 1993. was settled and the grievance was lodged after CECBA, 1993 was implemented, it does not detract from the fact that the only collective agreement before this panel was the 1993 agreement. Our jurisdiction is limited to the interpretation of this agreement and no other within the context of the changes, to CECBA. CECBA, 1993 received Royal Assent on December 24,1993 and was proclaimed February 14, 1993. The transition provisions of Part VI of the Act have a direct impact on the meaning of “CECEA” incorporated in Article 1.01 of the Collective Agreement. We have no evidence what the parties intended by the reference to “CECBA” in Article I .Ol. The best that can be said is that the original inclusion of the reference referred to the changes brought about by the publication of the Revised Statutes of Ontario, 1980. As my colleagues have stated, it can be argued that both parties were cognizant of the legislation and its changes. I would funher argue that they were also aware of the possible impact of the transition provisions when they negotiated this agreement. Cognizance of the impact of these provisions would explain the parties continuing the reference to the Ontario Public Service Labour Relations / i Tribunal in Articles 1.03 and 1.04. With the exception to complete outstanding matters, the Tribunal was disbanded with the coming into force of CECBA, 1993. However, in my view, the intentions of the parties in incorporating the reference to “CECBA” in earlier collective agreements are immaterial to the interpretation of the Article 1 .Ol in the 1993 agreement because the transition provisions of CECBA, 1993 overtake them. Sections 53 to 60 (see attached) lay out the timing and the parameters under which the old or pre-1993 CECBA applied and when CECBA, 1993 would apply to the collective bargaining scheme under which these parties worked. The old Ad does not vanish upon its repeal. It continues to apply until the circumstances which arose under it have been resolved at which point CECBA, 1983 takes precedence. Section 56 (3) states that the Labour Relations Act applies only after the old Act is repealed. Section 56 (4) states that the old Act would apply to those collective agreements negotiated after the repeal of the old Act but which were made retroactive to a time before the repeal, or in circumstances where the old Act would have applied if it had not been repealed. The 1993 agreement between Cupe, Local 1750 and the WC8 falls wholly within the parameters of these provisions. Section 56 (5) anticipating the resolution of collective agreements with terms which cover both pre and post repeal periods states that the old Act applies only until the repeal. This section has no bearing on the collective agreement before us because its term is wholly within the time period prior to the repeal of the old Act. Section 57, which continues the application of the old Act until negotiations for which notice was given under it are completed, permits the parties to agree that the old Act does not apply to the period after CECBA, 1993 came into force. There is no evidence that the parties came to such an agreement before the collective agreement for 1993 was completed. Nor was there any evidence that such an agreement was reached while the negotiations for the 1994 collective agreement were underway. ln the normal course of events, notice to bargain for the 1994 collective agreement would have bean given while the old Act was still in effect. I submit that as long as the 1993 coilective agreement is in force and no other agreement is made, the old Act continues to apply. Under these provisions there can be no doubt that the reference to “CECBA” in Article 1 .Ol can only mean the Act in force before CECBA, 1gW was implemented. Under the old Act the employees in dispute before us were excluded from the bargaining unit. Since the Agreement was retroa&e to the period ending December 31,1993 and did not straddle both the pre and post repeal periods, Section 56 (5) does not apply and the employees remain excluded from the bargaining unit. Since the Agreement was for a period entirely predating the repeal of the old Act, I suggest that section 54 (2) bars any change to the bargaining unit until such time as a new agreement is negotiated. lt is not any agreement regardless of its effective detes that must be negotiated by the parties before the bargaining unit can be changed. I submit that the section refers to a colktive agreement with a term W with the application of Cm 1983, in 1994, otherwise the relationship betwe~ sections 56 and 57 would make no sense. The two pmvisions continue the application of the old Act until matters which started, of would have commenced, under its auspices are r9solved It may verywellhavebeenadifferentmatter~theagreement~inl994wasfor both1993andlW4. ltwasncrt. Although the parties neither questioned this panel’s jurisdiction nor argued that the grievance was premature, I would stilt have dismissed the grievance for the above reasons. The Charter would, therefore, have no bearing on this issue. i Cleatly,thepartiesmaystill~ateorpunueothera\fecluesforanew definition of the bargaining unit. Unfortunately, I do not b&k that this panel has the jurisdiction to address this grievance outside the terms of the 1993 colledive Agreement 1993 Same Agreement between the parties Effect of agreement Same Classtication grievances. restriction Committee for classi!ica~ rion issues Definition Bargaining units -7 . . . FONCTION PUULIUUE ET RELATIONS DE TRAVAIL Pr. de loi 117 (b) the parties consent. (4) The chair of the Grievance Settlement Board shall provide for a matter to be deter- mined by the chair or a vice-chair sitting alone following a request under subsection 6 (3). SO.-(l) An employer and trade union may make an agreement relating to matters that may be determined by the Grievance Settlement Board that provides for, (a) certain matters that arise between them to be determined by the chair or a vice-chair sitting alone; (b) the selection of the individuals who will determine certain matters; (c) time limits within which hearings of certain matters must commence. (2) Upon receiving notice of an agreement from a party, the Grievance. Settlement Board shall give effect to it to the extent that its schedule permits. (3) The Grievance Settlement Board shall cease to give effect to an agreement upon receiving notice from a parry that the party no longer wants the agreement to apply. 51. An order of the Grievance Settlement Board shall not require the creation of a new classification of employees or the alteration of an existing classification. PART VI MISCEUANEOUS GENERAL 52. If the parties to a collective agree- ment respecting Crown employees request it, the Minister may establish a committee for the discussion and resolution of classification disputes between the parties. TRANSITIONAL PROVISIONS 53. In sections 54 to 60, the “old Act” means the Crown Employees Collective Bar- gaining Act, being chapter C.50 of the Revised Statutes of Ontario, 1990. - “-.u 54.-(l) A unit of employees that was a bargaining unit under the old Act immedi- ately before the repeal of that Act is an appropriate bargaining unit for the purposes of the Labour Relations Act until the descrip tion of the bargaining unit is altered under the Labour Relations Act. retard indu ou un autre prcjudicc, il est opportun de proceder ainsi; b) les parties y conscntent. (4) Le president de la Commission de rtglement des griefs prtvoit que le president ou un vice-president siegeant seul statue sur une question Q la suite d’une demande pri- sentie en vertu du paragraphe 6 (3). 50 (1) L’employeur et un syndicat peu- vent conclure une entente concernant les questions sur lesquelles la Commission de reglement des griefs peut statuer, qui prevoit ce qui suit : a) certaines questions sur lesquelles ils ne sont pas d’accord et sur lesquelles le president ou un vice-president sitgeant seul doit statuer; b) le choix des particuliers qui statueront sur certaines questions; .- ._ c) les delais dans lesquels l’audition de cenaines questions doit dtbuter. (2) D&s qu’elle est avisee d’une entente par une pat-tie, la Commission de reglement des griefs y donne effet dans la mesure 06 son horaire le lui permet. (3) La Commission de reglement des griefs cesse de donner effet B une entente des qu’elle est avisee par une partie que celle-ci ne veut plus que I’entente s’applique. 51 Les ordonnances de la Commission de reglement des griefs ne doivent pas exiger la creation d’une nouvelle classification d’em- ploy& ni la modification d’une classification existante. PARTIE VI DISPOSITIONS DI-VERSES DISPOS~ONS &N&ALES 52 Si les parties g une convention collec- tive concemant des employ& de la Couronne le demandent, le ministre peut creer un comitt qui discute des differends entre les parties en matitre de classification et les rigle . DISPOSITIONS TRANSITOIRES 53 Aux articles 54 a 60, l’ccancienne loi* s’entend de la Loi SW la nbgociation collec- tive des empio$s de la Couronne, qui consti- tue le chapitre C.50 des Lois refondues de I’Ontario de 1990. 54 (1) L’unitt d’employts qui etait une unite de negotiation aux termes de l’an- cienne loi immidiatement avant l’abrogation de cette loi est une unit& de negotiation appropriee pour l’application de la Loi SW les relations de travail jusqu’8 ce que la dtfi- nition de I’unite de negotiation soit modifide 25 Entente cntre !cg partles Prise d’effet de I’entente Idem Griefs tou- chant la clas- sification. restriction ComitC res- ponsable des questions de classification Definition Unit&s de nkgociation 1 I : i i ! I 1’ I ii 26 Changes Exception Bargaining agents collectlvc agreements Bill 117 PUBLl RVICE AND Lt\BOUR RELATIONS STATUTE L aux termes de la Lor sur les relations de travail. IYYJ (2) Despite the Labour Relations Act, the description of a bargaining unit referred to in subsection (1) cannot be altered until after a collective agreement is made following the coming into force of this section. (3) This section does not apply with respect to a bargaining unit established under section 23. b 55. k bargaining agent that, immediately before the repeal of the old Act, represented employees in a bargaining unit to which sec- tion 54 applies continues to represent them, for the purposes of the Labour Relations Act, until the bargaining agent ceases, under that Act, to represent them. 56.-(l) A collective. agreement under the old Act that had not expired before the repeal of that Act is a collective agreement under the Labour Relations Act. Labour Rela- riom Act applies (2) All the provisions of the Labour Rela- tio&Acz that apply to a collective agreement apply to a collective agreement referred to in subsection (1) including provisions that deem collective agreements to contain specified terms. Same Retroactive collective agreements Same Effect of designation Bargaining (3) The Labour Relations Act applies under subsection (2) only with respect to periods after the repeal of the old Act. (4) The old Act applies, subject to subsec- tion (5), to a collective agreement if, (a) the agreement is made after the repeal of the old Act but is retroactive to a time before the repeal of that Act; and (b) the old Act would have applied to the agreement had that Act not been repealed. (5) The old Act applies under subsection (4) only with respect to periods before the repeal of that Act. (6) The establishment of bargaining units ’ under section 23. and the designation of a bargaining agent under section 24 does not affect the operation of a collective agreement in force at the time of the designation ma 57.-(l) If notice to bargain is given under subsection 8 (1) or 22 (1) of the old Act before this subsection comes into force but a collective agreement has not been (2) MalgrC la Loi sur les relations de MoJifications Iranvail, la definition de I’unitC de nkgociation viste au paragiaphe (1) ne peut pas Metre modifite avant qu’une convention collective n’ait Ctt conclue aprts l’entrie en vigueur du &sent article. . --1 (3) Le p&&t article ne s’applique pas B I’tgard d’une unitC de ntgociation foimte en vertu de Particle 23. 55 L’agent ntgociateur qui, immkdiate- ment avant l’abrogation de l’ancienne loi, reprtsentait des employ& compris dans une unit6 de n6gociation a laquelle s’applique l’article 54 continue de les rep&enter, pour l’application de la Loi sur les relations de travail, jusqu’8 ce qu’il cesse, aux termes de cette loi, de les rep&enter. 56 (1) La convention collective viste par l’ancienne loi qui n’avait pai expirt avant l’abrogation de cette loi est une convention collective aux termes de la Loi sur les rela- tions de travail. (2) Les dispositions de la Loi sur les rela- tions de travail qui s’appliquent g une con- vention collective s’appliquent 5 la conven- tion collective vi&e au paragraphe (l), y compris les dispositions selon lesquelies les conventions collectives sent rep&es contenir des conditions prkcises. (3) La Loi sur les relations de travail ne s’applique aux tennes du paragraphe (2) qu’8 l’tgard des pCriodes suivant l’abrogation de l’ancienne loi. (4) L’ancienne loi s’applique, sous reserve du paragraphe (5), a une convention collec- tive si les conditions suivantes sont rkunies : a) la convention est conclue aprks l’abro- gation de l’ancienne loi, mais elle est rtkoactive il une ptriode prCcedant l’abrogation de cette loi; b) l’ancienne loi se serait appliquke B la convention si elle n’avait pas &k abro- gee. (5) L’ancienne loi ne s’applique aux ter- mes du paragraphe (4) qu’8 1’Cgard des pkiodes prtct?dant l’abrogat!on de cette loi. (6) La formation d’unids de ntgociation en vertu de I’article 23 et la designation d’un agent nCgociateuf en vertu de I’article 24 n’ont aucun effet sur l’application d’une con- vention collective en vigueur au moment oti la dksignation a &tC affectde. 57 (1) Si un avis d’intention de nkgocier est don& en vertu du paragraphe 8 (1) ou 22 (1) de I’ancienne loi avant I’entrke en vigueur du prCsent paragraphe, mais qu’une convention collective n’a pas t% conclue, Exception Agents nCgo- ciateurs collectives Application de la Loi SW les rdacions de travail Idem Effet rhoac- tif des con- ventions collectives ldem Prise d’effet de la designa- tion Nkgociation 1993 Exception Exception Essential services agreements. ?egotiations Ontario Public !.ktViCC Labour Relations Tribunal Triiunal continued Dissolution of Triiunal Old Act amtinues to apply Reconsidera- tion Existing application if undertaking transferred Act of the Tribunal Grievance Settlement Board FONCTION PUBLICWE ET RELATIONS DE TRAVAIL Pr. dc loi 117 made, the old Act continues to apply until a collective agreement is made. (2) Despite subsection (l), the parties may agree that the old Act ceases to apply before the collective agreement is made. (3) This section does not apply with respect to a bargaining unit established under section 23. 58. If section 33 comes into force after an employer and trade union would have been required, under that section, to begin negoti- ating an essential services agreement, the employer and trade union shall begin to negotiate an essential services agreement as soon as possible unless they agree to begin negotiations later. 59.-(l) In this section, “Tribunal” means the Ontario Public Service Labour Relations Tniunal. (2) *The Tribunal is continued for the pur- poses of disposing of any matters in respect of which an application was made to the Tri- bunal before the repeal of the old Act. (3) The Tniunai is dissolved on the day it disposes of the last of the matters referred to in subsection (2) or on a later day named by proclamation of the Lieutenant Governor. (4) Despite its repeal, the provisions of the old Act that relate to the Tribunal con- tinue to apply with respect to the Tribunal and to the matters before it until the Tribu- nal is dissolved. (5) While the Tribunal is continued, it may reconsider anything under section 39 of the old Act and, after it is dissolved, the Ontario Labour Relations Board may recon- sider anything done by the Tribunal. (6) If an undertaking is transferred, within the meaning of section 10, while an applica- tion is before the Tribunal for representation rights in respect of the employees employed in the undertaking or for a declaration that a trade union no longer represents the employ- ees, the application shall be transferred to the Board and the employer to whom the undertaking is transferred is the employer for the purposes of the application. (7) Anything done by the Tribunal shall be deemed, after the old &-repealed, to have been done by the Ontario Labour Rela- tions Board. 60.-(l) Section 51 applies with respect to all matters referred for arbitration to the Grievance Settlement Board after June 14, 1993. I’ancienne loi continue de s’appliquer jusqu’8 ce qu’une convention collective soit conclue. (2) MalgrC le paragraphe (l), les parties peuvent convenir que I’anciennc loi cesse de s’appliquer avant que la convention collective ne soit conclue. (3) Le present article ne s’applique pas h I’egard d’une unit6 de rkgociation formee en vertu de I’article 23. 58 Si l’article 33 entre en vigueur apr& que l’employeur et un syndicat auraient et6 tenus, aux termes de cet article, de commen- cer it nkgocier une entente sur les services essentiels, l’employeur et le syndicat com- mencent B en ntgocier une le plus t6t possi- ble, B moins qu’ils ne conviennent de com- mencer plus tard les ntgociations. 59 (1) Dans le present article, s<Tri- bunal, s’entend du Tribunal des relations de travail de la fonciion publique de l’ontario. (2) Le Tribunal est maintenu afin de sta- tuer sur les questions B I’Cgard desquelles une reqdte lui a et6 presentee avant l’abro- gation de l’ancienne loi. (3) Le Tribunal est dissous le jour 06 il statue sur la demiere des questions vi&es au paragraphe (2) ou B la date ultkieure que Ie lieutenant-gouvemeur fme par proclamation. (4) Malgre l’abrogation de l’ancienne loi, les dispositions de celle-ci qui se rapportent au Tribunal continuent de s’appliquer B l’Cgard du Tribunal et des questions dont il est saisi jusqu’ti ce qu’il soit dissous. (5) Pendant qu’il est maintenu, le Tribunal peut &examiner tout ce qui est vi& g l’article 39 de l’ancienne loi et, apres sa dissolution, la Commission des relations de travail de I’Ontario peut &examiner tout ce qu’a fait le Tribunal. (6) Si une entreprise est cddte, au sens de l’article 10, aprts que le Tribunal a &t saisi d’une requOte selon Iaquelle il lui est demand6 d’accorder le droit de rep&enter les employ& qui sont employ& dans l’entre- prise ou de declarer qu’un syndicat ne reprkente plus les employ&, la requete est renvoyee B la Commission et l’employeur ZI qui l’entreprjse est cedte est l’employeur aux fins de la requCte. (7) Tout ce qu’a fait le Tribunal est rtputk, aprts l’abrogation de l’ancienne loi, avoir et6 fait par la Commission des relations de travail de I’Ontario. 60 (1) L’article 51 s’applique B I’tgard de toutes les questions soumises B I’arbitrage de la Commission de reglement des griefs apr& le 14 juin 1993. 27 I Exccpcwn ExceptIon Ententes sur les setvices cssentiels, nCgociations Tribunal des relations de travail de la fonction publique de I’Ontario Maintien du Tribunal Dissolution du Tribunal Application de I’ancienne loi RCexamen RequCte en fours si I’en- treprise esr cCdCe Acres du- Tribunal Commission de tkglement des griefs . 28 Bill 117 PUBLIC SERVICE AND LABOUR RELATIONS STATUTE L .( 1993 I / : : Erfect of reductions in size Termination of framc- work agrce- ments Same Amended agreements included (2) No reduction in the number of vice- chairs or members of the Grievance Settle- ment Board shall have any effect on a term of a vice-chair or a member if that term began before the repeal of the old Act. 61.-( 1) The agreements described in sub- section (2) and agreements made under them are terminated at the end of 1994. (2) The agreements referred to in subsec- tion (1) are the following: 1. The memorandum of agreement dated July 21, 1989 between the Government of Ontario and the Ontario Crown Attorneys’ Association and the Associ- ation of Law Officers of the Crown. 2. The memorandum of agreement dated October 5, 1990 between the Govem- ment of Ontario and the Association of Professional Engineers and Archi- tects of the Government of Ontario. (3) This section also applies with respect to an amended agreement that ‘replaces an agreement described in subsection (2). REPEALS 62.-(l) The Crown Empioyees Collective Bargaining Act is repealed. (2) Section 2 of the Public Service Statute Law Amendment Act, 1993 is repealed. PUBLIC SERVICE ACT 63. +l) The Public Service Act is amended by adding tbe following heading before section 1: PART I. GENERAL (2) Clause 4 (b) of the Act is amended by striking out “through bargaining pursuant to the Crown Employees Collective Bargaining Act” in the last three lines and substituting “through collective bargaining”. (3) Sections 11, 12,13, 14, 15 and 16 of the Act are repealed. (4) The Act is amended by adding the fol- lowing heading before section 26: PART II ONTARIO PROVINCIAL qQLICE (5) The Act is amended by adding the fol- lowing Part: (2) Nulle rCduction du nombre de vice- ~“$‘$~~ p&dents ou de membres de la Commission de rkglement des griefs n’a d’effet sur le mandat d’un vice-prbident ou d’un membre si le mandat en question a dCbutt! avant I’abrogation de I’ancienne loi. 61 (1) Les ententes mentionnkes au zz,:,“,:zs paragraphe42) et celles conclues aux termes de celles-ci prennent fin dts que se termine l’annie 1994. (2) Les ententes visCes au paragraphe (1) Idem, sont les suivantes : 1. Le protocole d’accord en date du 21 juillet 1989 entre le gouvernement de I’Ontario, 1’Ontario Crown Attorneys’ Association et 1’Association des avo- cats de la Couronne. 2. Le protocole d’accord en date du 5 octobre 1990 entre le gouvemement de l’ontario et 1’Association des ingk- nieurs et architectes du gouvemement de I’Ontario. (3) Le present article s’applique tgalement F$:z& & l’tgard d’une entente modifike qui rem- modjfi&es place une entente mentionnke au paragraphe (2). ABROGATIONS 62 (1) La L.oi SW &a nt?gociation collective Ab~t*onr des emphyks de la Courzmne est abrogke. (2) Varticle 2 de la Loi de 1993 modt@ht des lois en ce qui conceme la fonction publique est abrogk LO1 SUR LA FONCI’ION PUBLIQUE 63 (1) La Loi SW la fonction publique est modiflee par insertion de l’intertitre suivant avant Particle 1 : PARTIE I DISPOSITIONS G&NI&ALES (2) L’alinia 4 b) de la Loi est modiIi6 par substitution, B <<en vertu de la Loi SW la &go- ciation collective des employ&s de la Couronnen aux trois demikres lignes, de Eccollectivew (3) Les articles 11, 12, 13, 14, 15 et 16 de la Loi sont abrogt%. I (4) La I.& est moditike en outre par inser- tion de l’intertitp suivant avant I’article 26 : PARTIE II POLICE PROMNCJALE DE L’ONTARIO (5) La Loi est modifiee en outre par adjonction de la partie suivante :