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HomeMy WebLinkAbout2011-1335.Union.13-05-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-1335 UNION#2011-0999-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Len Hatzis Ministry of Government Services Labour Practice Group Counsel CONFERENCE CALL May 7, 2013. - 2 - Decision [1] On February 21, 2013 a policy grievance and numerous individual grievances came before the Board. The policy grievance alleged that “the employer is in violation of article 1 of the OPS collective agreement and any other articles and legislation by not applying the terms of the collective agreement to court reporters who prepare and certify transcripts”. The Board`s disposition of the policy grievance is reflected in the concluding paragraphs of its decision dated March 1, 2013 as follows: [36] …. Therefore, the Board orders as follows: (1) The employer shall forthwith cease its violation of the collective agreement by failing to apply the collective agreement to Court Reporters, who the Board has declared to be employees performing bargaining unit work when producing transcripts. (2) The employer shall forthwith apply the collective agreement to court reporters performing bargaining unit work of production of transcripts, and shall not treat them as independent contractors. [37] The Board remains seized with jurisdiction with regard to any disagreement between the parties as to the implementation of the orders made herein, and with respect to all of the other grievances before it. [2] A number of hearing dates are presently scheduled before the Board, commencing on November 1, 2013. In the meantime the Board received a request from the union for hearing on an urgent basis. It was asserted that the employer had failed to comply with the Board orders and an urgent hearing was requested to deal with the alleged non- compliance. The employer opposed the convening of a hearing on an urgent basis. The instant teleconference was held to receive submissions as to whether an urgent hearing – an evening or week-end hearing – ought to be held. [3] It is common ground that the union has registered the orders contained in the Board decision dated March 1, 2013 and a contempt proceeding is scheduled before the Superior Courts for March 17, 2014. Union counsel submitted that at the proposed hearing before the Board the union would be seeking a finding that the employer had not complied with the Board order to apply the collective agreement forthwith and that the employer’s planned contract out of the work of the court reporters does not constitute compliance, and an order that the employer disclose to the union the individual(s) - 3 - responsible for the non-compliance. The union submitted that if non-compliance is found, it would be seeking contempt orders from the Board against the individuals in question. [4] Employer counsel conceded that to date the employer had not applied the terms of the collective agreement to the court reporters. However, he was not prepared to concede that the employer was, at this point of time, non-compliant with the Board orders. Citing case law, he submitted that an order to do something “forthwith” does not necessarily mean “immediately” and that depending on the particular circumstances compliance within a reasonable period of time would satisfy the legal definition of “forthwith”. [5] It was submitted that for the following reasons an urgent hearing is unnecessary in any event: 1) Hearing dates are already scheduled. 2) The employer’s plan for a new model of transcription services does not give rise to any urgency. 3) No extraordinary harm arises from an orderly scheduling of this matter. 4) OPSEU’s conduct demonstrates that the matter is not urgent. 5) There is no urgency since the Board cannot grant the relief sought. a) The Board does not have enforcement powers. b) Bringing the contempt issue before the Board is an abuse of process. c) This matter is now before the courts which is seized of the contempt issue. d) The GSB has already decided the matter and is now functus officio. e) There can be no contempt against the Crown so there is no prima facie case before the Board. f) This matter is restricted to OPSEU and the Employer; as such, an order cannot be made against a particular individual. [6] Union counsel advised that the employer had notified the union that it plans to implement a new contract out model on December 31, 2013. An announcement of this planned - 4 - contract out would be made to the affected court reporters on May 31, 2013. Counsel submitted that upon the making of this announcement on May 31, 2013, there would be panic among some 700 court reporters in the province and there will be chaos. It was this impending announcement that creates the need for an urgent hearing. [7] The Board in its decision dated March 1, 2013, at para. 14, set out the union’s submissions in support of the orders it was seeking at the time, to include the following: [14] With regard to the employer’s assertion of exclusive management rights to determine on how to have the work of producing transcripts performed, counsel argued that the orders it seeks do not in any way restrict the employer’s management rights. The union was not seeking orders that would require the work in question be retained in the bargaining unit in the future. Nor is it requesting for any order that would prohibit the employer from contracting out that work in the future. The union simply wants to ensure that the collective agreement is complied with as long as the status quo continues, and the work in question remains within the bargaining unit. If and when a contract out is implemented, the union would have to assess the situation, and file a separate grievance if it is of the view that the contract out is not in compliance with the collective agreement. [8] In the December 4, 2009 decision in Re Hunt at para. 37, Vice-Chair Abramsky concluded: In the case before me, however, it is my conclusion that I do not have the jurisdiction to determine whether the Employer’s new proposed regulatory model is consistent with the collective agreement, or the Board’s decision in Hunt, as part of the remedial aspects of this case. The Employer’s plan raises new issues, new facts and new legal arguments and must be contested through a new grievance. At para. 53, the Board wrote: Further, as the case law demonstrates, the remedial power of the Board must be linked to the subject matter of the complaint and cannot address new issues. As well do broad remedial powers do not confer jurisdiction. It is my view that the Employer’s proposal in regard to transcript production raises new issues. It was developed well after the decision. Any challenge to it would be based on new facts and require a full hearing and determination. The question of whether that new proposal comports with the collective agreement or violates the Hunt decision does not “flow from” the Hunt grievances. The Board’s declaration in Hunt does not give the Board continuing jurisdiction to ensure compliance with the collective agreement in relation to transcript production. It - 5 - does not negate management’s rights under the collective agreement on a go-forward basis. [9] In its decision of March 1, 2013, the Board accepted the submissions of union counsel set out supra at para 7. The cumulative effect of the decisions in Re Hunt and the decision in this matter dated March 1, 2013 is that as long as the court reporters continue to retain the status of employee (as opposed to independent contractor), they are entitled to all of the rights under the collective agreement, and the union is entitled to the status as their exclusive bargaining agent. However, those decisions have no bearing on the employer’s entitlement to change the status quo by contracting out the work in question. As Vice- Chair Abramsky has very clearly stated, the legitimacy of any contract out raises new issues, which must be contested through a new grievance. [10] The urgency relied upon by the union for a hearing stems from its concerns about an impending announcement of the employer’s plans to contract out the work in question. This Board has held in Re Hunt, as well as in its earlier decision in this matter, that the propriety of the proposed contract out is outside its jurisdiction which is limited to matters arising out of the respective grievances submitted to it. In Re Hunt at para. 22 (supra), the Board concluded that it does not have jurisdiction “to determine whether the employer’s new proposed regulatory model is consistent with the collective agreement, or the Board’s decision in Re Hunt, as part of the remedial aspects of this case. The employers can raise new issues, new facts and new legal arguments and must be contested through a new grievance”. [11] The same reasoning applies here. The employer’s planned contract out is not within the Board’s jurisdiction stemming from the policy grievance submitted to it or its decision dated March 1, 2013. An “urgency” relating to a matter outside its jurisdiction is not an appropriate reason for the Board to convene a hearing in the manner suggested by the union. The jurisdiction retained by the Board is only with respect to disagreements regarding the orders it had made. If issues remain as to the implementation of the orders made in the March 1, 2013 decision, the union may, with appropriate notice, raise those when the hearing resumes as scheduled. - 6 - [12] Accordingly, the union’s request for an urgent hearing is denied. Dated at Toronto this 9th day of May 2013. Nimal Dissanayake, Vice-Chair