Loading...
HomeMy WebLinkAbout1989-1694.Union.90-07-13 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS ST.~EET WEST, SUITE 2700, TORONTO, ONTARIr..3. I'~5G 1Z8 TELEPHONE/TELEP~ONE- 180, ~uE OUND~S OUEST, BUREAU 2~00, TORONTO [ONTARIO). M5G rZ8 ~ACSI~/~E,'TELEcoP~E . 1694/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOA/~D BETWEEN: OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer - and - BEFORE: B. Keller Vice-Chairperson J. C. Laniel Member. J. Scott Member FOR THE H. Law GRIEVOR: Grievance Officer Ontario Public Service EmPloyees Union FOR THE Mr. M. Failes EMPLOYER: Counsel Winkler, Fition and Wakely Barristers & Solicitors BEA-RINGi May 9, 1990 DEC~SION The union filed a policy grievance.alleging that the employer has failed to abide by the terms of the collectiwe agreement fairly by refusing to divulge to union officers the seniority list for seasonal employees. An order was sought "requiring the employer to provide this information upon demand in perpetuity". The employer raised a preliminary objection to the grievance and it was agreed that the Board would deal with the objection prior to any evidence being tendered on the merits of the issue. The objeCtion'of the employer, put in its Simplest fashion, is that the Board is without jurisdiction to deal with the merits of the grievance because there is no provision in the collective agreement dealing with the issue of seniority lists and to allow the grievance would be to add a new provision.to the collective agreement. In support of the objection, reference is made to section 12 of the Crown Employees Collective Bargaining Act, and s. 19 of the collective agreement between the parties both of which define the limits to the jurisdiction of the Board. - 3 Counsel for the employer.goes on to argue that there are specific provisions already Contained.in the collective agreement dealing with the obligation of the employer to provide information to the union. It is argued that to allow the grievance, the Board would be acting like an interest board not a rights board. Finally, reference is made to sections 27.1 and 27.16 of the collective agreement which provides that grievances and complaints must deal with the interpretation, application, administration or alleged violation of the agreement and that the Board has no jurisdiction to alter, change, amend or enlarge any provision of the Agreement. Counsel relied on the cases of G. Allin et al, 271/79 (Palmer); J. Carman CDle 1634/84 (Deliste) and Toronto TraDsit Commission and LOcal 113. Amalgamated Transit Union, unreported award dated February 14, 1990 (KNOPH). The union is in agreement that the collective agreement is silent on the issue of seniority lists for seasonal employees but argues that it is an implied provision in the agreement or, in the alternative, that the employer is not acting in a reasonable manner by refusing to supply a list as requested. Counsel agrees that if the Board is to order the employer to supply the -4- seniority list (which does not exist and would have to be compiled manually by the employer) the modalities of such things as frequency, cost, precise contents would have to be worked out between the parties. Two cases were cited in favor of the union's position that the Board should find an implied term in the agreement: Re Perth Countv Board of Education and London & District Service Workers' Union, Local 220, 2 L.A.C. (3d) 273 (Roberts); Re Dominion Store~ Ltd. (Sarnia) and United Steelworkers), 9 L.A.C. (3d) 238 (Roberts). In the view of the Board, the test relied on in Reijate v Union Manufacturing Co. (Ramsbottom} Ltd. [1918] 1 K.B. 592; [1918- 1919] All ER Rep. 143 is particularly useful in the instant case. The right of the Court to imply terms into a contract, except where such are to be implied by statute or custom, is extremely limited and has been outlined afresh by the House of Lords in Trolope .&Colls Ltd. v North West Metropolitan Regional Hospital Board, [1973] 2 All E.R. 260. At pp. 265-8, Lord Pearson said as follows: "In the High Court before Donaldson J the appellants relied on the plain meaning of the contract literally interpreted, and the respondents' argument - 5 - was, mainly at any rate, directed to the implication of a term. Donaldson J decided in favour of the appellants that no term could be implied. He cited a passage from the judgment of Scrutton LJ in Reigate v. Union Manufacturing Co. (Rambsbottom) Ltd. ([1918] 1 K.B. 592 at 605, [1918-19] All ER Rep. 143 at !49): 'A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is ... if at the time the contract was being negotiated some one had said to the parties, "What will happen in such a case," they would both have replied, "Of course, so and so will happen; we did not trouble to say that; it is too clear." Unless the Court comes to some such conclusion as that, it ought not to imply a term which the parties themselves have not expressed.'" We are satisfied that the list is not "necessary in the business sense to give efficacy to the contract". The seasonal employee provision in the collective agreement have been in place since they were awarded in an interest arbitration in 1985. There have been lay-offs and recalls since that date. It may be (and likely is) that the provision of a seniority list would be helpful to the union in enforcing its rights under the agreement, but it can not be said that it is necessary to give efficiency to the agreement. similarly, and in dealing with the question posed by the Court, the Board is satisfied that the response to the question lacks - b - t~e clarity necessary.to fulfill that test. Indeed, the. fact that the "hews and whats" of~the list as referred to above would still have to be agreed to by the parties if the Board orders the production of one shows the lack of clarity engendered in this matter. Thus, it is our determination that there is no implied term as suggested by the union. With regard to the issue of reasonableness we conclude that, without determining whether such an obligation exists in the instant case, the position of the employer is not unreasonable. The preliminary objection of the employer is upheld and the grievance is dismissed. Nepean this 13th day of July 1990. M.B. Keller, Vice Chairperson J.C. Laniel, Member 'J. Scott, Member