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HomeMy WebLinkAboutUnion 02-02-19IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 612 AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE #00D365 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR DAVID CAMELETTI, COLLEGE NOMINEE EDWARD SEYMOUR, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: DAVID W. BRADY FOR THE UNION: GAVIN LEEB AWARD The issue in this case is whether a student hired on a full-time basis to do office and clerical work during the summer vacation period ought to be covered by the collective agreement. The evidence indicates that in or around November or December, 1999, a Clerk General D in the Financial Aid Office was declared redundant. The grievance arises because some time thereafter, in the summer of 2000, a student was hired to work full-time in the same office. This student was hired pursuant to a job posting under the Summer Work Program, which is one of the means by which the College provides financial assistance to students. The Union claimed that the student hired in the Financial Aid Office, who was paid the minimum wage, was improperly denied coverage under the collective agreement. In the event that its claim is upheld, the Union reserved the right to argue that the student hired under the Summer Work Program performed the work of a Clerk General D. However, it was agreed between the parties that the Board deal with the first issue and remain seised with respect to the second. With regard to the first issue, the Registrar of the College, Jim Erb, testified that, as a result of tuition increases announced on November 30, 1995, the Ministry of Education issued guidelines on May 13, 1996 requiring that 10% of the additional tuition fee revenue collected from students be set aside and 2 reserved for student financial assistance (referred to as "tuition fee set aside funds"). Mr. Erb acknowledged, however, that there is nothing in the government guidelines which mandates that tuition fee set aside funds be expended on summer employment. In fact, a clarification issued on May 11, 1998 provides that "[i]nstitutions should plan to disburse funds during the academic year, and only funds which are residual at year end should be spent on summer employment programs". Mr. Erb acknowledged that there was no direction of any sort given as to the terms and conditions of summer employment. Mr. Erb also testified that, although the hiring of summer students varied from year to year depending on employment rates both in the province and the local community (there being more students hired in years of high unemployment), he could not recall a time in the past 20 or 30 years when summer employment was not offered as a means of providing financial assistance to students. In fact, proposals for the hiring of summer students under the government-initiated Student Employment and Experience ("SEED") Program, which has only recently ceased to exist, were always reviewed by the Support Staff Union/College Committee. Nevertheless, Mr. Erb acknowledged that concerns had been expressed that the hiring of students (although perhaps not specifically summer students) was not being brought to the attention of the Support Staff Union/College Committee. These concerns were expressed in the Minutes of the Support Staff Union/College Committee Meeting dated August 21, 1996 as follows: 3 9. OWSP (Ontario Work Study Pro.qram) and Other Pro.clrams Allison stated that in the past, the SSU/C committee has reviewed proposals for the SEED program only. There are a lot of other programs (OWSP, NORTOP, SEND, etc.) coming through the College at this time. The union feels that all of the programs should be brought to the union/college committee. There is a concern regarding the OWSP position and filing clerks in Financial Aid, which will have to be discussed at some point. The union feels that positions should come through this committee, subsequent to being posted. Notwithstanding these concerns, Mr. Erb claimed that there had been discussions regarding the use of students at the Support Staff Union/College Committee. It would appear that these discussions, which took place following a downsizing within the College in 1997, related to the hiring of students while full-time employees were on layoff. Although, in this context, the Union raised concerns respecting students doing bargaining unit work, according to Mr. Erb, at no time did the Union expressly state that summer students hired to work on a full-time basis ought to be included in the bargaining unit. In order to address the Union's concerns and provide guidance to management as to when students could be hired under the various government initiatives, a committee comprised of representatives of each of two Union locals and management was struck to come up with recommendations respecting the hiring of students. According to Mr. Erb, the committee's recommendations were presented to the senior management team and to the President of the College. 4 A number of changes were made to reflect the views of senior management and in 1997, a policy was promulgated respecting student employment and volunteerism. This policy, aptly entitled "Student EmploymentNolunteerism" and included in the College's Policy and Procedure Manual as Policy/Procedure No. P-S-9, provides, among other matters, that it is not intended that bargaining unit work will be replaced with student employment, but rather that students will be employed "as an enhancement to, or to assist a current position". In fact, Mr. Erb testified that given the nature of student employment as an enhancement, if a student were not hired, a bargaining unit position would not have been created. Mr. Erb further testified that, once approved, Policy No. P-S-9 was disseminated in the ordinary course to the College community, including the Union. At no time, however, did the Union ever assert that students hired pursuant to this policy came within the bargaining unit or were entitled to the protections of the collective agreement. In any event, Policy No. P-S-9 provides, in its material provisions: Policy and Procedure Manual Policy/Procedure No. P-S-9 Title STUDENT EM PLOYMENTNOLUNTEERISM Sault College supports the employment of students to financially help meet their educational costs and/or to gain valuable on the job experience. Student employment shall be scheduled around an individual's educational commitment and it is the intent of the College not to replace bargaining unit work with student employment. Students may be 5 employed through a variety of programs or may be employed as an enhancement to, or to assist a current position. Exceptions shall be reviewed with the appropriate employee group. In the case of student hires into positions not part of a specific Student Employment Program, a generic Student Employment Outline (attached) must be completed and submitted to Human Resource Services prior to hiring a student. Human Resource Services will notify the appropriate department or employing supervisor of the status of the request following consultation with the appropriate employee group. It is expected that students will have only one paid position at a time and hours of work, unless specified by program criteria, shall not exceed 15 hours per week. The following guidelines outline the various types of programs and the department responsible for administration: 1. Student Hires - no specific program. From time to time, students may be required to work in positions not covered in specific student employment programs and are funded through the College operating budget. Recruitment of students, once the positions have been reviewed by Human Resource Services and the appropriate employee group, will be carried out by the Student Placement Office. 2.a) Ontario Work Study Program. The aim of the Work Study Program is to financially help needy students meet their educational costs by working part-time during the school year without causing an excessive dependence on loan funding. Hiring of students is on a cost sharing basis - 75% paid by the Ontario Government and 25% paid by the employing departments or Student Assistance Fund. This program is administered by the Financial Aid Office. Financial Aid will forward applications for OWSP position to Human Resource Services. Human Resource Services will bring this to the appropriate employee group. Recruitment of students will be carried out by the Student Placement Office b) Student Assistance Fund - This program is similar in nature and purpose to the OWSP program and is funded through increased tuition fees. Recruitment of students will be carried out by the Student Placement Office. 6 According to Mr. Erb, the Student Assistance Fund in Paragraph 2(b) is a reference to the tuition fee set aside funds. Mr. Erb further testified that although the third introductory paragraph suggests that, unless specified by program criteria, Policy No. P-S-9 applies to positions of 15 hours per week or less, as a practical matter, the Summer Work Program has been applied to positions of 35 hours per week. Apart from Policy No. P-S-9, in 1998, the College (unilaterally, it would appear) developed guidelines, which were intended to deal with the disbursement of the tuition fee set aside funds to students in financial need under the auspices of a program entitled "Student Bursary Program". Included in these guidelines are different components (or "strategies") to assist with the distribution of tuition fee set aside funds, including student employment during the academic year (referred to as the "Sault College Work Study Program") and student employment during the College vacation period (the "Sault College Summer Work Program"). This document reads, in part: Sault College Of Applied Arts and Technology Student Bursary Program Approved February 5, 1998 Background: The Tuition Bursary Program was created by the provincial government as a result of tuition increases in 1996 and 1997. 7 In November of 1995 the Minister of Education announced the guidelines for tuition increase. The announcement stipulated that the College must reserve ten percent (10%) of the additional tuition fee revenue for student assistance. In 1997 the Ministry guidelines allowing institutions to increase tuition and ancillary fees carried the requirement that any increase in fees must reserve an additional thirty percent (30%) of the increase for student assistance. Each college was directed to disburse the funds to students in financial need. No clear guidelines were established as to how the funds could be distributed. Annual financial reports on the use of the funds are required. Tuition Fee Bursary Committee: The Sault College Student Bursary Committee was established in 1998· The committee is composed of the Director of Student Affairs, the Student Administrative Executive Committee and the Financial Aid Officer. The Committee is mandated to review and recommend the approval of programs and funding under the Student Bursary Program. Student Bursary Program: A student bursary is defined as a non-repayable award based on financial need. Student Bursary Program Fund Allocation: The Student Bursary Program is funded through the allocation of tuition fees as determined by the Ministry of Education guidelines. The Student Bursary Program is intended to assist students in financial need. At Sault College the fund is composed of seven distinct components. Presently the fund consists of: 1. A cash reserve 2. Food Vouchers and or transit vouchers 3. Student Bursary Funds 4. Sault College Work Study Program 5. Sault College Summer Work Program 6. Full Tuition Bursaries 7. Textbook/Supplies Allowance 8. Textbook deferrals 8 Student Bursary Fund Components: 4. Sault College Work Study Program. Student employment on-campus through the Sault College Work Study Program is an annual program and operated through the Placement Office and Financial Aid. This program is a complementary employment program to OWSP and is intended to create more employment opportunities on campus for student [sic] with financial need. To be eligible students must demonstrate financial need and be maintaining a 2.0 GPA. All positions are submitted through the Placement Office and processed according to College policy. The Committee will recommend an annual allocation of funds to the program and seek approval of the President's Executive Committee as part of the College budgeting process. 5. Sault College Summer Work Program. Summer employment on-campus through the Sault College Summer Work Program. Departments may receive funding for positions of 6 to 16 weeks in duration. This program is designed to help students in financial need, Students in order to be eligible must have confirmed enrollment with Sault College and be maintaining a 2.0 GPA. All positions are submitted through the Placement Office and processed according to College policy. The Committee will recommend an annual allocation of funds to the program and seek approval of the President's Executive Committee as part of the College budgeting process. College departments who wish to create employment opportunities on campus must submit a written job description to the Placement Office. This is a minimum wage subsidy program and funded at 80% with the employer covering 20% of the wages and mandatory employment related costs. According to Mr. Erb, Section 5 provides that summer jobs may extend from six to 16 weeks (whereas Policy No. P-S-9 makes no reference to the duration of summer employment). Although Section 5 is not limited to full- time employment, Mr. Erb testified that, as a practical matter, the only jobs which were approved by the committee reviewing these matters were full-time jobs. 9 Although Mr. Erb's evidence was unclear (as he does not deal with these matters on a day-to-day basis), he suggested that the government subsidy for summer employment might be 75%, rather than 80%, as indicated in the Student Bursary Program. He also suggested that the balance is paid either by the College or by tuition fee set aside funds. Further, although the Ontario Work Study Program ("OWSP"), referred to in Policy No. P-S-9, provides an 80% subsidy from tuition fee set aside funds with the College paying the balance (20%), Mr. Erb testified that this program is not designed for summer employment, but for employment up to 10 hours per week during the school year. Finally, Mr. Erb testified that prior to the introduction of tuition fee set aside funds, funding for student summer employment came from the provincial government. More importantly, funds for summer employment never came out of the College's operating budget. Submissions for the Union The Union submitted that the collective agreement covers a statutorily-defined bargaining unit, the scope of which includes all employees who are not specifically excluded. It was further submitted that there is no exclusion for temporary employees. In fact, temporary employees (being persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence) are specifically dealt with in Appendix D to the collective agreement. Accordingly, were summer students excluded from coverage under the collective agreement, 10 as the College suggests, the College could circumvent Appendix D by hiring summer students to replace bargaining unit employees, which could not have been the intention. Moreover, it was submitted that the Union has a statutory obligation to represent all employees in the bargaining unit, which would include summer students. Nevertheless, the Union acknowledged that it had agreed to exclude "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit. It was submitted, however, that the collective agreement predated the legislation and that, once the legislation came into effect in 1975, it superseded the parties' agreement as to the scope of the bargaining unit, as it is clear that the parties could not contract out of the statutory bargaining unit. Furthermore, although the College claimed that the legislative debates (known as "Hansard") demonstrate that the intent of the legislation was to maintain the bargaining unit as defined in the existing collective agreement, the Union claimed that the Hansard excerpt introduced in these proceedings does not support the College's claim with respect to the support staff bargaining unit. Furthermore, as Schedule 2 to the Act is clear on its face as to inclusions/exclusions from the scope of the bargaining unit, there is no reason to have reference to extrinsic evidence. In any event, the Union submitted that Hansard should be referred to as an aid to the interpretation of legislation only in exceptional circumstances, which do not include the circumstances of this case. 11 Submissions for the College The College submitted that as the parties to the collective agreement (being the Union and the Council of Regents) agreed to exclude "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit, there is no difference arising from the "interpretation, application, administration or alleged contravention" of the collective agreement, which can be the subject-matter of a grievance or a reference to arbitration. The College further submitted that the Union entered into the agreement respecting the scope of the bargaining unit with full knowledge of the law and cannot be allowed to resile from that agreement, which has been renewed on successive occasions over a 30-year period. Moreover, although the Union is only seeking a declaration that the summer student in the Financial Aid Office was covered by the collective agreement, the effect of that declaration would be that the wage rates under the collective agreement would apply to summer students. In the result, fewer summer students would be hired, which would lead to a substantial decrease in financial assistance to students in circumstances where there was never any intention that the collective agreement be applied to them. The College further submitted that in order to conclude that summer students are covered by the collective agreement, the Board would have 12 to find that the statute renders Article 1.1 of the collective agreement void. According to the College, such a conclusion is contrary to the principles of fairness, labour relations and collective bargaining, and is not a conclusion which is mandated by statute. With respect to the statute, the College submitted that the Colleges Collective Bargaining Act provides wide latitude in negotiations and allows for distinctions to be made between groups of employees, such as probationary employees, temporary employees and summer students, and for the parties to decline to negotiate terms and conditions of employment with respect to a particular group of employees, such as summer students. Accordingly, even if summer students come within the statutory bargaining unit, so long as it does not act in a manner which is arbitrary, discriminatory or in bad faith, the Union is permitted to exercise its representational rights by declining to negotiate terms and conditions of employment on their behalf. Moreover, although it might have been preferable had students been excluded from other provisions of the collective agreement, it was open to the parties to exclude them from the scope of the contractual bargaining unit. This is not to suggest that the parties could have agreed to change the statutory bargaining unit. However, the College submitted that the parties could have agreed (and indeed did agree) to a different bargaining unit for the purposes of the collective agreement. Moreover, the College submitted that the excerpt from Hansard which was introduced in evidence confirms that the statute was intended to replicate the scope of the bargaining unit that was already in place when the statute came into effect, which excluded summer students. 13 The College further submitted that in order for a board of arbitration to negate any provision of a collective agreement that conflicts with a statute, there must be a "contractual right" under the agreement. In this case, however, there is no contractual right, as the agreement expressly excludes students from the scope of the bargaining unit. In the alternative, if the recognition clause is found to be void as being contrary to statute, the College submitted that the Union is estopped from asserting that the summer student hired to work on a full-time basis in the Financial Aid Office was covered by the collective agreement, as the Union has not demonstrated that the exclusion of summer students from the scope of the bargaining unit would be contrary to public policy. More particularly, the College submitted that the public interest does not require that summer students be included in the support staff bargaining unit when the parties expressly agreed that they not be included. The College further submitted that the Council of Regents would not have negotiated the collective agreement in the manner in which it did, had it known that the recognition clause agreed to in successive collective agreements would have been found to be illegal. Accordingly, as estoppel is a doctrine based on fairness and, as it would manifestly unfair to allow the Union to resile from a contractual provision it has agreed to on successive occasions over a 30-year period, the College submitted that the Union should be estopped from taking the position that summer students are 14 covered by the collective agreement until the expiry of the current collective agreement in August, 2003. Reply Submissions for the Union The Union submitted in response that estoppel has no application to the interpretation of a statute. Furthermore, estoppel would not apply, as estoppel requires detrimental reliance, often in the form of a lost opportunity to bargain. In this case, there has been no lost opportunity, as bargaining was done, not by the College, but by the Council of Regents. In any event, it was submitted that the grievance was submitted well before the conclusion of the current collective agreement and, therefore, that the matter could have been addressed in bargaining. Supplementary Submissions Subsequent to the hearings in this matter, both parties made written submissions. For its part, the College submitted that arbitration is not the proper forum for the enforcement of a statute and that a statute cannot be the basis for a grievance under the terms of the collective agreement. The College further submitted that a board of arbitration has the authority to interpret statutes only if there is a nexus between the dispute under the collective agreement and the statute. In addition, it was submitted that the issue of (1) whether a person is 15 included in the support staff bargaining unit for the purposes of the Act and (2) whether a person is covered by the collective agreement are separate matters, the first being dealt with by the OLRB and the second, by a board of arbitration, and that a finding that a person is included in the bargaining unit for the purposes of the Act is not determinative of whether the person is covered by the collective agreement. The College further submitted that although Section 2 of the Act allows for students to be covered by the collective agreement, it does not require that they be covered. Moreover, whether or not a person is covered under the terms of the collective agreement is determined by the terms of the scope clause which was negotiated by the parties. It was further submitted that a statute cannot provide either the Union or a person with the right to grieve where the agreement excludes a person from coverage, as there would be no "difference" which could properly be the subject of a grievance under the collective agreement. Finally, although the College agreed that a board of arbitration may have the authority to "read down" a provision in a collective agreement that conflicts with the statute, it was submitted that in this case, there is no conflict between the scope clause of the collective agreement and the statute. In the alternative, it was submitted that a provision of a collective agreement cannot be voided, unless it both conflicts with the statute and is contrary to public policy. In this case, the College submitted that it is not contrary to public policy to exclude students who are employed temporarily during the College vacation periods. 16 For its part, the Union submitted that a board of arbitration has the authority and the duty to interpret statutes. Furthermore, although the Union agreed that a board of arbitration generally determines whether a person is an employee for the purposes of a collective agreement, whereas the OLRB determines whether a person is an employee for the purposes of the Act, as the bargaining unit is defined by statute, a person cannot be an employee for the purposes of the Colleges Collective Bargaining Act without also being a member of the bargaining unit. Accordingly, it was submitted that it was not open to the parties to exclude persons from coverage under the collective agreement who are members of the statutory bargaining unit. The Union further submitted that a board of arbitration has the authority to "read down" a provision of the collective agreement that conflicts with a statute, in this case, the exclusion in Article 1.1 for "persons employed temporarily during the College vacation periods", as it conflicts with Section 2 of the Act. Furthermore, although the Union did not dispute that (1) a board of arbitration is not the proper forum for statutory enforcement; and (2) there must be a nexus between the dispute under the collective agreement and the statute, as the bargaining unit is defined by statute, the Union contended that there is a nexus between the dispute in this case (namely, whether a student hired to work full-time during the summer of 2000 was properly excluded from coverage under the collective agreement) and Section 2 of the Colleges Collective Bargaining 17 Act. The Union further submitted that public policy is expressed in the statute. Accordingly, the public policy in Ontario is that students hired to work full-time during the summer vacation period are included within the bargaining unit. Moreover, the proviso that a benefit conferred by statute can be waived by the affected persons is inapplicable in this case as there was no evidence of students having waived their statutory rights. Decision The issue in this case whether the student hired to perform office and clerical work in the Financial Aid Office in the summer of 2000 ought to have been covered by the collective agreement. With respect to this issue, reference must be made to the following provisions of the collective agreement and Colleges Collective Bargaining Act ("CCBA"): Collective Agreement 1. RECOGNITION 1.1 Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: 18 - persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during the College vacation periods; Colleges Collective Bargaining Act PART I GENERAL 1. In this Act and in the Schedules, 'bargaining unit' means the academic staff bargaining unit of employees or the support staff bargaining unit of employees set out in Schedules 1 and 2; ... 'employee' means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit of employees set out in Schedules 1 and 2;... 'employee organization' means an organization of employees formed for the purpose of regulating relations between the employer and employees under the Act, but does not include such an organization of employees that discriminates against any employee because of age, sex, race, national origin, colour or religion; ... PART VI AGREEMENTS 48.-(2) Where a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails. 19 51. An agreement is binding upon the Council, the employers and the employee organization that is a party to it and upon the employees in the bargaining unit covered by the agreement. 52. Every agreement shall be deemed to provide that the employee organization that is a party thereto is recognized as the exclusive bargaining agent for the bargaining unit to which the agreement applies. PART IX REPRESENTATION RIGHTS 65. Every person is free to join an employee organization of his or her own choice and to participate in its lawful activities. 67. The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act. SCHEDULE 2 The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff but does not include, (vi) persons regularly employed for not more than twenty-four hours a week, Section 1 of the Colleges Collective Bargaining Act provides a definition of "bargaining unit" as including the support staff bargaining unit set out 20 in Schedule 2, and a complementary definition of "employee" as a person employed within the bargaining unit set out in Schedule 2. Schedule 2 defines the support staff bargaining unit as being "the employees of all boards of governors of colleges of applied arts and technology employed in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff", with certain specified exceptions, including an exception for "persons regularly employed for not more than twenty-four hours a week" (Para. vi). Although the recognition clause under the collective agreement includes an exception for "persons regularly employed for twenty-four (24) hours per week or less", it also provides an exclusion for "persons employed temporarily during the College vacation periods" (Art. 1.1) (generally referred to as "students"), which is not found in the statute. VVhile the parties to a collective agreement are generally free to determine the scope of the bargaining unit, where (as in this case), the bargaining unit is prescribed by statute (CCBA, S. 67), the parties cannot deviate from the statutory bargaining unit, as in this case, by agreeing to an additional exclusion: see Re La Cit~ Coll~giale and The Ontario Pubfic Service Employees Union; Ga~tanne Caron Grievance, February 10, 1997 (M.G. Picher (unreported)) ("La Cit~ (Caron)"); Waito v. La Cit~ Coll~giale Ottawa and Ontario Pubfic Service Employees Union [1998] OLRB Rep. 636 ("La Cit~ (Waito)"). Moreover, although the College seemed to suggest that the proscription against 21 deviating from the statutory bargaining unit does not prevent the parties from agreeing to a different bargaining unit for the purposes of the collective agreement, the Board cannot agree. As these cases confirm, where there is a statutory definition of the bargaining unit, the contractual bargaining unit must conform to that definition, and where there is a conflict between the definition of the statutory and contractual bargaining units, the statutory definition prevails (CCBA, Ss. 48(2)). In La Cit¢ (Caron), the grievor was hired on a series of successive contracts under which she was regularly employed for more than 24 hours per week over a period of almost three years. Although both parties accepted the grievor's exclusion from the bargaining unit, the board found that she could not be excluded, as she came within the general description of the bargaining unit and did not fall within any of the statutory exceptions (the relevant exception in that case being "persons regularly employed for not more than 24 hours per week"). The board's reasoning is set out, in part, at p. 9 of the decision as follows: To begin, we find it important to acknowledge that the legal framework in which the Collective Agreement is set. This is not a bargaining unit or a collective agreement that the parties can reconstruct or amend as they see fit. In the administration of their Collective Agreement, the College and the Union are bound to observe the provisions of the Colleges Collective Bargaining Act, R.S.O. 1990, Chap. C. 15. In particular, they cannot deviate from the provisions of the Act precisely defining the word 'employee' and clearly describing the bargaining unit. 22 It goes without saying that the parties may not, by their own practice or understanding, rescind the legal status granted to an individual by law .... A similar conclusion was reached in La Cit~ (Waito), which involved a complaint under the Labour Relations Act. The substance of the complaint, which was brought by Ms. Waito, was that the college and the union had breached the Colleges Collective Bargaining Act in treating her as a contract employee, rather than as a member of the bargaining unit, for the duration of her employment in the campus bookstore. The essential dispute centred around whether Ms. Waito, who had been hired on a series of successive contracts over a three-year period, ought to have been considered to be a member of the support staff bargaining unit represented by OPSEU when the college terminated her contract in June, 1994. After referring to the recognition clause in the collective agreement, as well as a number of statutory provisions (namely, the definition of "employee" in Section 1, Section 52, Section 67, and the description of the bargaining unit in Schedule 2 to the Colleges Collective Bargaining Act), the OLRB commented as follows: 59. Section 67 provides that the bargaining units set out in the statute are the bargaining units for collective bargaining: 67. The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act. 60. Read together these statutory provisions give OPSEU the right and obligation to represent employees in the described bargaining units and employees in those bargaining units have the right to be so represented. 23 62. The effect of the above statutory provisions, is that people working the number of hours at the kind of tasks that Ms. Waito did for three years are in the bargaining unit, and represented by OPSEU, by force of law. None of the listed exceptions apply [sic] to the facts of this case .... Employer counsel argued.., that the parties were free to treat positions as not in the bargaining unit, . . . That proposition may be valid in a situation where the parties are free to determine the scope of the bargaining unit between them. However, I am not persuaded that it has any validity where the statute prescribes the bargaining unit. It is trite law that the parties cannot contract out of a statute. The statute, not the parties' consent, gives rights to individual employees to be in the bargaining unit and to be represented by a bargaining agent, as well as to the union to represent those employees. Although the College submitted that the La Cit¢ decisions are distinguishable as the employees in those cases had statutory and contractual rights to representation, which the parties failed to recognize, whereas the student in this case had no contractual right to representation, in the Board's view, this is a distinction without a difference. VVhile different means were used, in this case, as well as the two La Cit¢ cases, employees were improperly denied their statutory rights (in this case, by means of a provision which was negotiated in the collective agreement and, in the La Cit~ cases, by applying the agreement in such a manner as to exclude the employees from coverage). In contrast, in the context of a finding that the parties never intended that continuing education teachers be covered by the collective agreement, the board in Re Ontario Pubfic Service Employees Union and George Brown College; Grievance of L.D. Benhaggai, February 16, 1993 24 (Mitchnick (unreported)) ("George Brown") held that it was not within its jurisdiction to determine whether the Colleges Collective Bargaining Act provided such coverage. It is generally recognized, however, that boards of arbitration have not only a duty, but an obligation, to construe and apply the relevant statute law to the terms of a collective agreement and, where a conflict is found between the terms of a collective agreement and a statute, to apply the statute: see McLeod v. Egan, [1975] 1 S.C.R. 517, 46 D.L.R.(3d)150 (S.C.C.). In addition, the Colleges Collective Bargaining Act expressly recognizes the primacy of the statute in Subsection 48(2) by providing that "[w]here a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails". Although the College submitted that in order for Subsection 48(2) to have application, there must be a "contractual right" which conflicts with a provision of a statute, Subsection 48(2), on its face, applies to "any provision of an agreement", irrespective of the nature of the provision and, in particular, whether it is a provision which confers or, in the case of the exclusions under Article 1.1 of the agreement, abrogates rights. To the extent the George Brown decision is inconsistent with the Board's obligation to consider the impact of public statutes in interpreting the provisions of the collective agreement and with the two La Cit¢ decisions, which considered the impact of the statute, the Board declines to follow it. The College suggested in its written submissions that arbitration is not the proper forum for the enforcement of a statute. However, this is not a 25 case of statutory enforcement where there is no connection to the collective agreement. Rather, the issue in this case concerns the interpretation of the collective agreement within the context of the statutory framework, which the Board is empowered to construe. Moreover, contrary to the assertion of the College, this is not a case in which the statute allows for membership within the bargaining unit, but rather requires membership with certain specified exclusions. Furthermore, as to the suggestion that the issue in this case comes within the jurisdiction of the OLRB, rather than a board of arbitration, where there is a statutory definition of the bargaining unit, as in this case, there can be no doubt as to the Board's jurisdiction, as a member of the statutory bargaining unit must be included within the contractual bargaining unit. Finally, as to the suggestion that there is no arbitrable "difference", which can properly be the subject of a grievance, the difference relates to the interpretation of Article 1.1 of the collective agreement, which must be construed in accordance with Schedule 2 to the Colleges Collective Bargaining Act. Put another way, Article 1.1 provides the necessary nexus to confer upon the Board jurisdiction to interpret the statute. Furthermore, the College suggested that Hansard confirms that the statutory bargaining unit was intended to conform to the bargaining unit as described in the collective agreement at the time the statute came into effect, which would exclude "persons employed temporarily during the College vacation periods". Although the Supreme Court of Canada has recognized that Hansard may be considered in ascertaining the purpose for which legislation was enacted, 26 it is not evidence of legislative intent (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783). Accordingly, notwithstanding the Government's professed intention in the excerpt submitted from Hansard to design legislation around the provisions of the collective agreement then in effect, the fact that the statute fails to exclude "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit must be taken as a clear indication of legislative intent that students be included. In the result, the Board finds that the purported exclusion of "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit is contrary to statute and cannot stand. Although the College submitted that a provision of a collective agreement cannot be voided unless it conflicts with the statute and, in addition, is contrary to public policy, in the present case, it seems clear that the statute is the expression of public policy. Although there may be circumstances in which a statutory provision may be waived by a class of persons for whose sole benefit the provision was intended, even assuming that the statutory protection for students was intended for their benefit alone, there was no indication of any student having waived this benefit. Furthermore, although an agent may waive a provision for the benefit of its principals, at the time the exclusion for "persons employed temporarily during the College vacation periods" was agreed to, there was no evidence that the Union 27 was acting as agent for any student. Accordingly, the Board finds the exclusion to be void. Nevertheless, the College claimed that the Union is estopped from asserting that the summer student hired to work on a full-time basis in the Financial Aid Office was included in the support staff bargaining unit. The doctrine of estoppel was enunciated by Denning L.J. in Combe v. Combe, [1951] 1 All E.R. 767 at p. 770 as follows: The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself had so introduced, even though it is not supported in point of law by any consideration, but only by his word. It would appear that, by negotiating a provision, which would exclude "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit, in successive collective agreements over a 30-year period, the Union made a representation to the College, which was intended to affect legal relations and to be acted upon by the College. Moreover, although it is at least arguable that, by hiring students at the minimum wage (rather than the wage set out in the collective agreement), the College relied on that representation to its detriment, the Union maintained that there can be no 28 detrimental reliance, as it was foregoing its claim to retroactive wages and, further, as there was no evidence of a lost bargaining opportunity. Certainly, it would seem fair, given the effluxion of time, to give effect to an estoppel argument. However, even aside from the issue of detrimental reliance, it is generally accepted that estoppel cannot be invoked where allowance of the estoppel would result in an illegality: see, e.g., Re Natrel Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Teamsters Loc. 647 (Pecchia) (2000), 91 L.A.C.(4th)438 (Charney). In this case, as has been found, the exclusion of "persons employed temporarily during the College vacation periods" from the scope of the bargaining unit is contrary to statute. Nevertheless, the College submitted that there is no impediment to allowing the estoppel as it was open to the Union to waive or contract out of the statute, as there is no public policy interest to be protected by having students included within the bargaining unit. In support of its position, the College relied on the decision of the OLRB in Ontario Hydro [1990] OLRB Rep. 305. In that case, the parties agreed that a number of agreements reached between them did not constitute a "collective agreement" to which the Labour Relations Act applied. When the union attempted to resile from that position, the OLRB found that there was no public interest in requiring that the agreements be treated as a collective agreement when the parties had expressly agreed otherwise, and applied the doctrine of estoppel to prevent the union from 29 asserting that the agreements were covered by the Labour Relations Act. In the Board's view, there are significant differences between this case and Ontario Hydro. In Ontario Hydro, in which there was a certification application pending, there was no statutory requirement that the parties enter into a collective agreement. Accordingly, the parties were able to agree not to have a collective agreement and their agreement was not contrary to public policy. In contrast, as has been found in this case, there is a statutory description of the bargaining unit, which does not exclude students and, therefore, the parties' agreement to exclude students from the scope of the bargaining unit is contrary to public policy, as expressed in the statute. This finding would appear to be consistent with the view of the OLRB in the La Cit¢ (Waito) decision, wherein it was stated at para. 116: ·.. whatever the parties may be free to agree on, or rely on estoppels for, where there is no statutory bargaining unit, I remain unpersuaded that such a route is open where there is a statutory bargaining unit. This is further supported by section 48(2) , which explicitly sets out the primacy of the statute over any agreement. Although this reasoning is obiter, as no finding was made as to whether the facts of that case would support an estoppel, it seems clear that the view expressed by the OLRB represents an accurate statement of the applicable law. It does not necessarily follow, however, that, because students are included in the bargaining unit, they are covered by the terms of the collective agreement. It seems clear that, having excluded students from the scope of the 30 bargaining unit (albeit improperly), the parties never intended that terms of the agreement would apply to them. In fact, students, who are hired for a specified term can be distinguished from regular full-time employees, who are hired on an indeterminate basis. In this respect, this case differs from the two La Cit~ cases. In those cases, once it was determined that the employees in question (Ms. Caron and Ms. Waito) were improperly excluded from the bargaining unit on the basis that they were hired on a series of successive contracts, they were indistinguishable from regular full-time employees and, therefore, covered by the terms of the collective agreement. In this case, however, there is a significant difference between students who are hired to work full-time during the College vacation period and regular full-time employees who are hired on an indeterminate basis. Accordingly, although it has been determined that students were improperly excluded from the bargaining unit, it is unclear as to the manner in which the collective agreement ought to be applied to them. It should be mentioned in this regard that it is not uncommon for special arrangements to be made in relation to students. Moreover, although students were not contemplated as being covered under this agreement, the parties have made separate arrangements for other groups of employees, most notably, temporary employees, who are dealt with under a separate Appendix to the collective agreement (Appendix D). In the result, as requested, the Board declares that students come within the scope of the support staff bargaining unit and, therefore, that the 31 exclusion for "persons employed temporarily during the College vacation periods" is void as being contrary to statute. However, the Board remits the matter of the terms and conditions applicable to these employees for the parties to deal with, and remains seised in the event they are unable to do so. As well, the Board remains seised to deal with matters of implementation and with any remedial or other issues that may arise in relation to this grievance. DATED AT TORONTO, this 19th day of February, 2002. "Maureen K. Saltman" Chair "1 concur- David Cameletti" College Nominee "1 concur- Edward Seymour" Union Nominee