HomeMy WebLinkAbout1991-0802.Union.92-08-10 ONTA RIO EMPL 0 ¥I~$ DE £A COuRONNE
CROWN EMPLOYEES DE L'ONTAR/O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
fSO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M50 IZ8 TELEPHONE/TELEPHONE. (~ 15'/ 355- ~388
~80, RUE DUNDAS OUEST, BUREAU 2'100, TORONTO (ONTARIO), M5G ;Z8 FACSI~',.4tLE/TELEcoPlE (4.~5~ 32E.~ 1396
802/91
ZN THE I~TTER OF ~ ~RBITI~TION
Under
THE CRO~I~ EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV~CE SETTLEHENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
The Crown in Right of Ontario
(Ministry of Revenue)
Employer
BEFORE: M. Watters Vice-Chairperson
M. Lyons Member
C. Linton Member
FOR THE S. Goudge
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE P. Young
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING February 20, 1992
May 1, 1992
By grievance dated September 11, 1989, the Union claimed
that the Employer had violated the collective agreement by
improperly administering the provisions of Appendix 3, Schedule A
(Averaging of Hours of Work) in respect of a number of Assessors
working across the Province for the Ministry of Revenue. The
Union asked that "management immediately cease its restrictive
interpretation" of the provisions in issue and that" the
materially affected members be afforded the flexibility of work
hours." Subsequent to the filing of the grievance, discussions
occurred between the parties. This led to the Employer's
issuance of a series of guidelines dated March 14, 1990 in
respect of the accumulation and utilization of excess hours by
Schedule A employees of the Ministry of Revenue. The material
paragraph of these guidelines read:
"Employees will be allowed to accumulate excess
hours to a maximum of 14-1/2 hours in a fiscal year
without prior authorization from management to meet
work requirements, provided that no excess hours
will be accumulated without prior authorization in the
final week of the fiscal year."
The above-mentioned grievance (G.S.B. File No. 201/90) was
withdrawn pursuant to Minutes of Settlement dated March 8, ~991.
The relevant paragraphs of that document read:
" 2. The Employer will issue on April 15, 1991 a
memo from E. Farragher to management setting out
the March 14, 1990 guidelines re Schedule "A".
3. These guidelines will be in effect without change
from April 15, 199I until December 31, 1991.
4. Zf the Employer wishes to change the guidelines after
December 31, 1991 it will first discuss these changes
1
with the Union at an Employee Relations Committee
meeting. If the Union disagrees with the changes, the
Employer is free to implement the changes subject to
the Union reserving its right to grieve the matter to
arbitration.
5. At any arbitration concerning the guidelines the
parties reserve the right to take any position which
could have been taken in GSB file No. 20t/90 including,
but not limited to whether any settlement was reached
on March 14, !990 and/or whether that settlement was a
binding agreement on both parties. Moreover, at any
arbitration the Employer's issuance of the guidelines
in paragraph 2 will be deemed to have been without
prejudice."
These Minutes of Settlement were not made on Order of the
Grievance Settlement Board.
On April 15, 1991, Mr. E.C. Farragher, Director of the
Personnel Services Branch, issued the guidelines referred to in
paragraph number two (2) of the Minutes of Settlement. These
guidelines, in paragraph number four (4), contained the provision
reproduced earlier relating to the accumulation of excess hours
up to the 14-1/2 hour threshold. The parties at some point
engaged in a discussion of the interpretation to be accorded to
paragcaph number four (4). The Union contested the approach that
the'Employer intended to adopt. By letter of April 15, 1991, it
described the Employer's intentions as an "about turn in
position." More specifically, it viewed same as being
inconsistent with the intent of the material provision of the
guidelines. From the perspective of the Union, the Employer was
attempting "to narrow" the scope of what had been previously
agreed to by limiting its effect to "emergency circumstances." I
2
The aforementioned letter stated, in part-
'' it was ~d is our opinion that the agreed to
wording of Article 4 allows for the accumulation
of up to 14 1/2 hours as a running total that can
be 'topped up' but not exceeded without prior
authorization.
Mr. Farragher responded to the Union's concerns by letter of
April 18, 1991 which was forwarded to Mr. E.E. Faulknor, Chair of
the ODSEU Ministry E.R.C. Team. He addressed therein the intent
of the excess hours provision. The material part of this
correspondence stated'
"Paragraph 4 was developed and introduced to address
the fo]lowing issues/concerns that were articulated at
the Stage 2 grievance meeting.
" From time to time, assessors in the field
requiring an extra 1/2 hour to complete
an assignment could not do so on their own
authority without calling in to their manager for
permission. In the event the manager was not
available, the Assessor could not complete the
work required because the extra time would not be
recognized after the fact.
Assessors in the office receiving a phone call or
visit from a taxpayer at the end of the day or
needing to complete an assignment could not work
beyond the closing time and if they did, the extra
time would not be recognized by the managers after
the fact.
Note' The above-noted rigid management of
Assessors in a few regions was compared
to the much more flexible and trusting
management approach of the majority of
the regions.
Paragraph 4 was not intended to address-
The normal day to day work where no special
circumstances require the working of an extra
1/2 hour or hour to complete the work at
hand.
3 "
Working at home after the completion of a
regular day's work,
Given the nature of the issues and concerns being
addressed and the anticipated infrequent need to
use this provision, management proposed a 7 1/4
hour bank. Following receipt of the Union's
counter-proposal of 21 3/4 hour bank, the t4 1/2
hour bank was accepted as it was felt that this
would fully cover the anticipated occasions of
use. It was in this context that the management
representatives gave you and your team the
undertaking that the 14 t/2 hour bank could be
topped up, if necessary. This undertaking still
stands. "
Mr. Farragher described these comments as a "ctarificati'on'".
The parties were subsequently unable to resolve this impasse
and the Union, as a consequence, filed a second grievance dated
April 29, 1991. That grievance, which has resulted in the
instant proceeding, read:
" STATEMENT OF GRIEVANCE
Union grieves that management is violating Article
4 of the agreement made between the parties March 14, 1990
and circulated on April 15, 199t.
re: limiting the occasions where excess hours can be
accumulated, both originally and for purposes of topping-up.
SETTLEMENT DESIRED
Declaration to that effect and alt consequential relief.
Simply put, it was the position of the Union that the Employer
had breached the Minutes of Settlement of March 8, 199~ by
changing the guidelines prior to December 31, t991.
On the initial day of hearing, the Employer raised a
preliminary objection relating to the Board's jurisdiction to
entertain the grievance, Briefly stated, counsel advanced two
(2) grounds in support of this position. Firstly, it was
submitted that we lacked the requisite authority to interpret a
settlement. Counsel suggested that this was the very thing we
were being asked to do in this case. Secondly, it was further
submitted that the grievance was not premised on a breach of
specific articles in the collective agreement and was, therefore,
not arbitrable under section 19 (1) of the Crown Employees
Collective Bargainin~ Act. We were Provided with the awards in
Sim & Bain, 1387, 1388/86 (Draper) and Jansen, 888/89 (Watters)
in support of these arguments. After the presentation of
submissions, and ?oltowin9 discussions between counsel, the
parties agreed to an adjournment of the proceedings so that they
might have an opportunity to refine their respective positions.
On the second day of hearing, the parties presented more
comprehensive submissions on our jurisdiction to deal with the
grievance of April 29, 1991.
It was the position of the Union that the 8card possessed
the authority to adjudicate the grievance. Counsel commenced his
argument from the premise that sound labour relations demands
that parties be encouraged to settle grievances. He stated
further that as a corollary, parties should not be permitted to
withdraw from settlements as such would "debase the process." In
5
this regard, reference was made to the award in Jansen where the
Board concluded:
" A contrary finding would, in our judgment,
undermine the sanctity of settlements freely
concluded as it would permit parties to withdraw
from such agreements with impunity. For reasons
which are obvious, that result would not provide
for good labour relations. We are consequently
disinclined to adopt reasoning which could have
that effect.
(page 3)
Counsel suggested that our decision should be "fully informed" by
this "unassailable principle"
it was the submission of the Union that the Grievance
Settlement Board does possess the jurisdiction to interpret the
terms of a settlement where an issue of compliance has arisen.
This position was based on an analysis of Sim and Bain. That
case involved two (2) grievances relating to entitlement to shift
premium. Both grievances were settled during the grievance
process and the terms of settlement were reduced into writing.
The affected parties subsequently disagreed in their
understanding of the settlement. Indeed, as here, the Union
claimed that the Employer had failed to comply with same. As a
consequence, the 9rievors filed a new grievance alleging non-
compliance. Both parties appear to have asked the Board to
interpret the terms of the settlement for purposes of resolving
the dispute. Ultimately, the Board declined to act on this
request. It appeared to conclude that the matter did not fall
within the scope of jurisdiction bestowed on the Grievance
Settlement Board by sectqons 18 (2) and 19(t) of the Crown
Employees Collective Barmaininm Act. .More particularly, that
panel seemed to find that the dispute did not concern the
interpretation, application, administration or alleged
contravention of the collective agreement. Relying on the award
in Haladay, 94/78, the Board agreed that it did not have any
"inherent jurisdiction to do justice ....... or to provide
remedies, no matter how desperately a particular case might cry
out for relief." Zn summary, the majority of the Board.concluded
that it lacked the jurisdiction to proceed. The proceedings
were, accordingly, terminated at that stage.
The Union subsequently filed an Application For Judicial
Review dated October 14, ~988. The primary ground for asking for
the intervention of the Divisional Cour't was stated as follows'
" the Grievance Settlement Board errored in declining
to exercise its jurisdiction under Section 19 of the
Crown Employees Collective Bargainipq Act, R.S.O. 1980,
c. 108 to give a final and binding determination to the
grievances of Patricia Sim and Douglas Bain."
The Union asked for an Order quashing'the earlier decision of the
Board and for a further Order remitting the matter back for final
and binding determination. The endorsement of Mr. Justice Reid
on the Application Record read:
" Application is unopposed. The decision of the
Grievance Settlement Board i,s set aside and the
matter remitted to the Board for a hearing of the
grievance."
Counsel for the Union in the instant proceedings noted that the
above-mentioned Application was not ex parte, He submitted the
endorsement evidenced the Court's opinion that the Grievance
Settlement Board possessed the jurisdiction to hear the Sim and
Bain grievance and that it had made a jurisdictional error in
initially refusing to entertain same. Counsel suggested that the
Court would not have set aside the decision nor remitted it back
if it felt the Board lacked the requisite authority. This panel
of the Board was, therefore, urged to conclude that the
Bivisional Court has recognized the Board's power to interpret
settlements in the context of a dispute alleging non-compliance
with the terms of settlement. The Union, as a consequence, asked
that we determine whether the Employer had complied with the
Minutes of Settlement dated March 8, 1991, particularly paragraph
number three (3) thereof.
It was the further position of the Union that our
jurisdiction to hear this case could be found in section 19 '(1)
of the Crown EmploYees Collective Bar~ainin~ Act, which reads:
19. (t) Every collective agreement shall be deemed
to provide that in the event the parties are unable to
effect a settlement of any differences between them
arising from the interpretation, application,
administration or alleged contravention of the
agreement, including any question as to whether a
matter is arbitrable, such matter may be referred for
arbitration to the Grievance Settlement Board and the
8oard after giving full opportunity to the parties to
present their evidence and to make their submissions,
shall decide the matter and its decision is final and
binding upon the parties and the employees covered by
the agreement.
8
Course? noted that the Board is empowered to make a final and
binding decision in respect of grievances flowing from employees
covered by the legislation. He submitted that such jurisdiction
would include a grievance alleging a breach of the terms of
settlement.
Reference was also made to the practice in the private
sector. It was asserted tha~ Boards of Arbitration in that
'sector can adjudicate grievances relating to whether Minutes of
Settlement have been contravened. We were referred to Re Zehrs
Markets And Retail Clerks Union, Local 1977 (1984), 14 L.A.C.
(3d) 379 (Barton) and Re Canadian General-Tower Ltd. (Oakvil]e
Division) And United Rubber Workers, Local 292 (1990), ~2 L.A,C.
(4th) 153 (Craven) in support of that proposition.
It is clear from a reading of Re Zehrs Markets that the
arbitrator concluded he had the jurisdiction t~ determine whether
or not the Employer had abided by the terms of settlement. The
followin~ statement is found at page 380 of the award:
'" It is quite clear that it is a general principle
that settlements of grievances are to be
encouraged. It is also essential from the point
of view of the grievance p~ocedure, that
settlements be enforceable and enforced."
In Re Canadian General-Tower Ltd., the parties agreed that the
arbitrator had jurisdiction to decide whether the company had
complied with the terms of a grievance settlement. The
arbitrator in that case described the scope of this authority as
follows:
"It is generally accepted that boards of arbitration
have jurisdiction to enforce settlements reached during
the grievanc~ procedure, and that in exercising this
jurisdiction an arbitrator is to give effect to the
parties' agreement, without going behind the terms of
settlement to determine whether it was the 'right'
result in the circumstances .......................
... Nevertheless, if the grievance settlement is to be
enforced its terms must be interpreted. If, as the
company argues, the settlement is couched in ambiguous
language, then that ambiguity must be resolved so that
the real agreement can be given effect. In this regard
there is a crucial distinction to be drawn between
second-guessing the settlement in light of the original
dispute, which would constitute unwonted arbitral
interference in the grievance procedure, and
interpreting the terms of settlement to give effect to
the parties' mutual intention, which constitutes the
proper exercise of the arbitral ju/isdiction to enforce
private grievance settlements".
(pages 155-156)
summary, it was argued that the Board should adopt an
anatagous approach to the issue.
It was the position of the Employer that the grievance was
inarbitrable as it did not focus on a breach of a specific
provision of the collective agreement. Counsel submitted that
the Minutes of Settlement could not be treated as ~ collective
agreement for purposes of section 19(1) of the Crown Employees
Collective Barqaininq Act. Further, he argued that paragraph
five (5) of the settlement could not provide us with the
requisite jurisdiction as it was directed to changes in the
guidelines occurring after December 31, 1991. From the
perspective of the Employer, the case before us did not relate to
compliance with the terms of settlement. Indeed, it was
10
emphasized that the Employer had issued the guidelines as
required. Counsel suggested instead that the dispute, in
substance, called for an interpretation of the settlement. He
argued, on behalf of the Employer, that the Board could not
embark on such an exercise, in this regard, reliance was placed
on the Boards's decision in Sim and Bain. Counsel submitted that
the contrary result in the Divisional Court was premised largely
on the fact that both parties wanted a resolution to the impasse.
We were, therefore, cautioned not to give a broad reading to the
Court's endorsement.
The Employer also relied on the award in Neamtz,. 516 et
al./84 (Roberts). That case involved a Consent Order which
contained the terms of a settlement agreement. One of the
paragraphs of the Consent Order read: "This settlement shall be
made an Order of the Grievance Settlement Board only for the
purpose of the enforcement of the terms of this settlement". The
Union subsequently applied to the Board for clarification of' one
of the provisions in the settlement which was allegedly
ambiguous. In response, the Employer claimed that the Board was
functus officio and was, therefore, without jurisdiction to make
the determinations sought by the Union. The Board ultimately
sustained the position advanced by the Employer. It concluded
that the paragraph in the Consent Order, reproduced above, made
it clear that the settlement was made an order of the Board for
the sole purpose of obtaining enforcement under section 19 (6) of
11
the Crown Employees Collective Bar~aininq Act. That section
reads:
Where a party or an employee has failed to comply with
any of the terms of the decision of the Grievance
Settlement Board, any party or employee affected by the
decision may, after the expiration of fourteen days
from the date of the release of the decision or the
date provided in the decision for compliance, whichever
is later, file in the office of the Registrar of the
Supreme Court a copy of the decision, exclusive of the
reasons therefor, whereupon the decision shall be
entered in the same way as a judgment or order of that
court'and is enforceable as such.
The Board stressed that the parties did not agree that the
Minutes of Settlement would become a Board Order for all
purposes. It was not convinced that the act of issuing the
Consent Order transformed the settlement into an award of the
Board for all purposes, including the clarification of the
language in which the parties cast their agreement. The Board
suggested that ~he result did not leave the parties without a
remedy as it remained open to them to 9o to the Courts of general
jurisdiction to have resolved a dispute about competing
interpretations of ambiguities. It was the thrust of the
Employer's argument that the parties to this dispute should have
made the settlement an award of the Board, or used other
appropriate language, to reserve the Board's jurisdiction.
The dispute between the parties initially arose from a
complaint that the Employer had improperly administered the
provisions of Appendix 3, Schedule A of the collective agreement.
The grievance of September 11, 1989 was subsequently, resolved on
t2
March 8, 1991. The settlement reached on that date incorporated
earlier guidelines of March 14, 1990 that addressed, inter alia,
the accumulation and utilization of excess hours by Schedule A
employees. The Board, after reviewin9 the history of the
dispute, concludes that the threshold issue on the merits is
whether the Employer has complied with the aforementioned
settlement. More specifically, did it change the guidelines
prior to December 31, 1991 as alleged:. Such question, of
necessity, requires an interpretation of paragraph number four
(4) of the guidelines. In this regard, we do not accept the
Employer's assertion that the settlement was complied with as of
the issuance of the guidelines. Quite clearly, the settlement on
its face contemplated that these guidelines would be in effect
without change from April 15, 1991 to December 31, 1991. The
question of change cannot, therefore, be avoided.
The Board has been persuaded that the ultimate difference
between the parties is directly related to the application,
administration or alleged contraventi, on of the collective
agreement, particularly Appendix 3, Schedule A thereof. Section
19(1) of the Crown Emoloyees Collective Bargaininq Act makes the
Grievance Settlement Board the final arbiter of such disputes
between the parties. The Board by statute is authorized to make
a final and binding decision. There is no question that the
issue was properly before the Board by way of the grievance of
September 11, 1989. We have not been convinced that jurisdiction
13
was ousted on exhausted as a consequence of the subsequent
settlement. Rather, we think that jurisdiction over the matter
continues for purposes of ensuring that the settlement is, in
fact, complied with by both panties. This role may require us to
make a final and binding decision on the threshold issue, as
described above. To be clear, we find that the parties may
return to the Board in the event there is an allegation of non-
compliance.
Our decision on this aspect of the case promotes the labour
relations objective that settlement of grievances be encouraged.
Parties would not be inclined to enter settlements if they could
be breached with impunity without recourse to the Grievance
Settlement Board. In a matter such as this, the parties could
not resort to section 19 (6) of the Crown Em¢loyees Collective
Bargaining Act as the Board did not issue "a decision" that could
be filed in the Supreme Court. Further, in view of the
settlement, it is unlikely that the Union could proceed with a
fresh grievance on the identical issue. Were the Employer
correct, the Union here would be required to go to the courts of
general jurisdiction in order to seek enforcement. Quite apart
Yromthe possible effect of the Rights of Labour Act, R.S.O. 1980,
Chapter 456, it would seem preferable, as a matter of policy, to
have issues of the present type dealt with by administrative
tribunals having labour relations expertise. This is especially
so vis a vis the Grievance Settlement Board which initially
14
entertained the grievance and which by statute is compelled to
render a final and binding decision on outstanding differences
between these parties.
Our decision is also consistent with Sim and Bain. As
stated previously, that case raised an issue of compliance with a
settlement. That question, which was also before the Board by
way of a second grievance, called for an interpretation of the
settlement, The Board declined to entertain the dispute. In its
judgment, it lacked the requisite jurisdiction under the Crown
Employees Collective Bargaining Act. The basis for the decision
was placed squarely before the Divisional Court in the
Application For Judicial Review. We think it' highly unlikely
that the Court would have set aside the decision and remitted it
back to the Board were it not of the opinion the Board, in law,
possessed the jgrisdiction to undertake and complete the task.
It is obvious that the Grievance Settlement Board is a creature
of statute. Its jurisdiction cannot be enlarged by either the
Court or the consent of the parties. Ultimately, on our review
of Sim and Bain, we think the Divisional Court has determined
that this Board has the jurisdiction]to hear a compliance issue
requiring an interpretation of terms of settlement. This
Chairperson's comments in Jansen relating to Sim and Bain were
made without the benefit of the Divisional Court's endorsement.
Indeed, Jansen was heard and released prior to the release of
that endorsement.
On our reading of Neamtz, the decision turned largely on the
particular provision contained within the Consent Order which
provided that it was only an order of the Board for purposes of
enforcement. The panel, there accepted the Employer's
interpretation that the language was intended to allow for
enforcement under section 19(6) of the Crown Emoloyees Collective
Barqaining Act, We have not been persuaded that the existence of
this provision deprives us of the jurisdiction to entertain a
case such as this. As indicated earlier, we find that the Board, '
as part of its statutory jurisdiction, may address compliance
issues involving interpretation of the terms of a settlement. It
is not clear that the panel in Neamtz considered the effect of
the result in Sim and Bain. We also note that the former award
focused on the narrow issue of whether the Board could clarify an
allegedly ambiguous provision in the Consent Order.
For all of the above reasons, the Boardlconcludes that we
possess the jurisdiction to address the issue of compliance with
the terms of settlement. The matter will be rescheduled for
further hearings before this same panel.
Dated at Toronto ,Ontario this 10th day of August ,1992.
~ W~ter$, Vice~i~erso~
C. Linton, Employer Member
16