HomeMy WebLinkAbout1994-1029.Policy.96-05-13
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ONTARIO I EMPtOYES DE LA COURONNE
CROWN EMPLOYEES DELVNTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON AI5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (Cl'4M5G 1Z8 FACSIMILE/TELECOPIE (416) 326 -1396
GSB # 1029/94
CUPE # 94-40
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVABCB SETTLEMENT BOARD
BETWEEN
CUPE 1750 (Policy Grievance) Grievor
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The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
BEFORE: S. Kaufman Vice-Chairperson
T. Browes-Buqden Member
M. Milich Member
FOR THE S. Barrett
GRIEVOR Counsel
Sack, Goldblatt & Mitchell
Barristers & Solicitors
FOR THE P pasieka
EMPLOYER Counsel
Filion, Wakely & Thorup
Barristers & Solicitors
FOR THE S McArthur ~
INTERVENOR Counsel
McArhtur, Vereschagin
Barristers & Solicitors
FOR THE P Leung
INTERVENOR Workers' Compensation Board
HEARING May 5, 31, 1995
June 2, 1995
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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 PEL
Adjudicator, Special Needs Adjudicator, P~nalties 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
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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.
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3. The Employer's position is that employees in the
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 a~plied 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
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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-
clusive 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) .
II. Since then, there have been 13 Collective Agree-
ments between the parties, beginning with the 1975-76
Collective Agreement (Exhibit 11), 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 ". .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 1(1)(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.
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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
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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).
15. 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
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applicable to the period January 1, 1993 to December 31, 1993
(Ex 15b) . The relevant provisions of that agreement are
ARTICLE 1
RECOGNITION
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1.01 The Employer recognizes the Canadian union of Pub-.
lic 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 Seniority Definition
(a) 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.
(b) 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 posit~on which would have
been in the bargaining unit had the bargaining
unit existed at that time
(c) .
(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
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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 Employees' Collective Bargaining
Act, R s.o. 1990, c. 50, "the old CECBA", which are found in
Bill 117, 5.0. 1993, c 38 ("CECBA. 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 ) In this Act
"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) the chief executive officer of any agency
of the Crown,
(b) 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 ~rown,
"
(C) spends a significant portion of his or her
time in the supervision of employees,
(d)
(e) adjudicates or determines claims for compensa-
tion which are made pursuant to the provisions
of any statute,
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Mr. Barrett, FeQ. 20, 1995 (cont'd)
( 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;
5. l(l)(a) above is "gone" but has been replaced, and s.
1(1)(b), (c) , (e) , and (f) have been removed s. 1(1)(g) has
been more narrowly defined The union needs to identify the
positions no longer excluded by the former s l(l)(b) and
( f) .
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, persons above the rank of
supervisor, and persons excluded by virtue of the
provisions of the Crown Employees Collective
Bargaining Act
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Mr. Barrett, Feb. 20, 1995 (cont'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 CECBAr 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.
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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 advised this board that the
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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-
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Mr. Barrett, May 5. 1995 ( cont ' d ) :
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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 e~ployees so identified are just "employees"
We request the board to restrict itself to the issue o~
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.O, 1990, c
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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. May 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
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/' Ms. pasieka. May 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
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Mr. McArthur. May 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.
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,? Its submissions will cross the spectrum of about 1200
positions.
Mr. Leung. May 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. May 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. May 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
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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.
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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. May 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. UP. E. , Local 1750, the Tribunal determined that "the
appropriate bargaining unit [is] one comprised of all em-
ployees of the respondent [WCB] except fOE" certain statutory
exclusions found in s 1(1)(g) of CECBA. 1972. The certifi-
cate does not refer to s. 1(1)(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-
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Mr. Barrett, May 31. 1995 (cont 'd):
Ii'" cators 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
the past 20 years. Rather than specifying who is included,
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
CECBA, and issued a consultation paper. In December of 1991
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 Ar~ 4 01(c)
That memo was not ratified and the parties reverted to the
seniority language found in the 91-92 ag~ement 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
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Mr. Barrett. Ma y 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. I.Ol, 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
unit 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 ~ter 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
.-
16 .J
Mr. Barrett, May 31. 1995 ( cont ' d) :
agreement As a result, the union rejects the suggestion
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
support the union's position: Canadian Appliance Mfg. Co.
Ltd. and U.S.W. (1978), 20 L.A C. (2d) 59 ( Shime) ; Crown Cork
& Seal Canada Inc. and U.S.W.A. (May 1, 1992) unreported
( Shime ) ; International Chemical Workers. Local 552. and Emery
Industries (Canada) Ltd. (1970), 21 L.A C. 163 (Weatherill);
Alliance Employees' Union v. Public Service Alliance of Cana-
da v. ottawa Typographical Union, Local 102, OLRB 0460-84-R,
February 10, 1987, MacDowell; C.U.P.E., Loc. 2046 and Cape
Breton Development Corporation, Coal Division. Sydney. Nova
Scotia. and John A. Maxner, et al., CLRB file 530-1297, Deci-
sion 595, October 31, 1986; Smith v. South Wales Switchgear
Ltd. [1978] 1 All E R 18 (H.L ) ; Bell Canada and C.T.E.A.
(1994), 43 L A.C (4th) 172 (MacDowell).
In Canadian Appliance 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 Appliance 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 members of the bargaining unit At
.--
I 7 .J
Mr. Barrett. Ma y 31, 1995 (cont '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-
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
.J
I 8
Mr. Barrett. May 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
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 Employees' 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. Loc. 2046 and Cape Breton Development.
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-
~
19 .J
Mr. Barrett. May 31, 1995 (cont'd):
ginal certificate, and the wishes of the employees would not
v 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 Haig v. Canada (1992), 94 D.L.R. (4th) Ii 90.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 playa 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
.~
.;
20
Mr. Barrett. May 3 1 . 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
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 J;3ell, 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(1) 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 barga1ning 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
.J
21
Mr. Barrett, May 31. 1995 ( cont ' d) :
/ The board can infer that the legislature intended an accre-
tion of those employees to C.U P.E., Loc. 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, May 31, 1995:
In interpreting the collective agreement it is useful to
bear in mind the three Crown Employees Collective Bargaining
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
I.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 legislat~on 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-
.-
22 .J
Ms. pasieka. May 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.-(1) 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
...--"
21
Ms. Pasieka, May 31. 1995 ( cont I d) :
is no valid labour relations purpose in allowing the union's
if" 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
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
Employees Collective Bargaining Act
The current collective agreement was signed on April 20,
1994, after CECBA, 1993 was proclaimed i~ 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 .1
Ms. pasieka, Ma y 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.
~
The question arises as to why the union would sign an
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 ~ppliances, 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 Helpers.
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. Telephone, [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
-~
25 .J
Ms. pasieka, May 3 1 , 1995 (cont f 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
,-
26
Ms. pasieka, Ma y 31- 1995 ( cont ' 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 appeal led 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 without refe-
rence to their wishes places easily foreseeable
strains upon the relationship b~tween 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-
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-
, 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
sought to be added to the unit 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 Ol(d) does not mean people are automatically
swept into the bargaining unit It means that C U.P.E or
another bargaining unit can organize the formerly excluded
employees. Art 4.01(d) was agreed to before CECBA was amen-
ded Art 4 01(d) does not speak to an agreement of the par-
ties that they were referring to CECBA, 1993 The non-bar-
gaining unit members could enter the bargaining unit some
.--
2g J
Ms. Pasieka. Ma y 3 1 . 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
"-
Mr. McArthur. June 2, 1995:
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. 0 1 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(1) of CECBA, 1993 states
54 -(1) 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
..-...~
29 -J
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. CECBJ\. 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(1) 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 provided 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
---
30
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 include 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 rapresented 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
....--.
3 1 .J
Mr. McArthur. June 2. 1995 (cont ' d) :
C.U P E., Local 1750. Nothing in CECBA. 1993 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
subsequent 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 Redekop Corporation v. C.J.A.. 27
Locals [1989J 1 W.W R 183 (B C.C A ) , Lor-Wes Contracting
Ltd. v. The Oueen [1986] 1 F C 345; Ch 19, and excerpts
from ch 18 of Dreidger 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 claupe 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
-
12
Mr. Barrett, June 2. 1995 (cont' d) :
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-
.
13
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. Telephone, in 1947 the Canada
Labour 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. Telephone 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. Telephone 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 Appliance
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 Teleglobe Capada, [1979] 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 c~llective agreements between the parties
since 1975 the language of Art 1 01 has always meant that if
~-,-
.J
~4
Mr. Barrett. June 2. 1995 ( cont ' d) :
the provisions of CECBA were altered, the bargaining unit
would be altered. In 1984, when the parties agreed to remove
"1972" from Art 1.01, CECBA had been enacted, and they knew
what it meant The intervenors and the employer argue that
by removing "1972" the parties evidenced an intention contra:'
ry to the union's submitted position. Whenever legislation
is introduced, when the statutes are consolidated into the
Revised Statutes of Ontario (R S 0 ) , the reference to the
date of the statute in its short title is dropped. The
R.S.O.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 legistation 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
--
35 ~
Mr. 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. ..
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 el1mination of competition with another bargai-
.-
36 .J
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-
.._....~
37 .J
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 Analysis:
a) The Case Law:
In International Chemical, 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 provisron 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
-- ---
38
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(1) 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 9tatutory 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
.-
39 J
V 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
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 Appliance, supra; Crown Cork & Seal, supra; Interna-
tional Chemical Workers and Emery Industries, supra; Alliance
Employees' 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 Re Grey County Board of Education and O.S.S.T.F.
(1983), 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 pas 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 on~s 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
W.O'
4 () .J
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,
~ 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
-~-
~
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 LAC (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 Peterborough Utilities Com'n and
Int'l Brotherhood of Electrical Workers, Local 1965 (1973), 4
L.A.C. (2d) 383, and in Palmer & Palmer, Collective Agreement
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 exclud~d 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
.-
42 .J
agreement or a contract includes all subsequent amendments to
that statute, arises from case law.
b) The Statutory Amendments
As stated in argument, the exclusions from the defini-
tion of "employee" in the old CECBA, i.e R.S 0 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.-(1) 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 unites), if any, in which
formerly excluded 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 0 Reg 57/95 unaer 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.
.--
43 .,1
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 Redekop, supra; Ruth
Sullivan, Dreidger 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 resolv-
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
...--".~'
44 .J
Crown Employee in s 1 of the Public Service Act, R.S 0
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 O. 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. 1993.
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 fall
within the exclusions from the CECBA, 1993
definition of "Crown employee" automatically
fall 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 a!reement 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 .J
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 rela-
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
54(2), 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 collec-
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 requiremen~ that the collective
agreement reached after February 14, 1994 apply prospectively
]. 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
.--
46 .J
c) 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-
mine the probable intention of the parties with respect to
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 Seniority 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 Seniority 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 Agreem~nt 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
...--_.
47 .J
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 partie~ 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-
.--
48 ~
sultation paper there is no evidence before this board that
during the 91-92 negotiations the parties considered and/or
discussed how 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 voce 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-~2 agreement, the
employer gave no indication that it intended to maintain the
exclusions in the old CECBA, R.S.O 1990, c 50 in relation
to Art 1 01, despite the parties' mutual anticipation of
amendments, which, given the wording of Art 1 01, could
amend the composition of the bargaining unit
,..--
49 ./
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 that the 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
.-.
50 .J
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 0 1990, c 50, or to have
relied on an oral representation 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 I.Ol, giving CUP 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
,
5 I .J
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
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
..--.
52
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-
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 time 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-
.-
53 .J
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 Department
Store Union. Local 544 et ale 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 Right of Canada [1987] 1 S.C R. 424,
87 C.L.L C 14, 022; Reference re Public Service Employee
Relations Act (Alta.), [1987] 1 S C R 313, 87 C L L C
14,021; Slaight Communications V. Davidson, [1989] 1 S C R
1038, 80 C L L e 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 ; Lavigne v. OPSEU,
[1991J 2 S C R. 211, 91 C L L.C 14,029;~Gustavson Drilling
(1964) Ltd. V. Minister of National Revenue (1975), 66 D L.R
(3d) 449, [1977] 1 S.C R. 271, Hornby Island Trust Committee
V. Stormwell et ale (1988), 66 D L.R (3d) 449 (B.e C A );
Attorney General of Canada V. Lavery (1991), 76 D L R (4th)
97 (B C. C A ); Cantor, Norman L , "Forced Payments to Ser-
...----;
54
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 Litigating the Values of a Nation: The
Canadian Charter of Rights and Freedoms, winter & Elliott,
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, , Theory and Practice of Human Rights (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 Bldg. Ltd. and Construction Workers' Union (1984), 13
D.L.R. (4th) 584 (Alta. Q B.); Miller v. Northwest Territo-
ries (Commissioner) (1988), 51 D.L R. (4th) 292 (N.W T.S.C.),
Terminaux portuaires v. Maritime Employers' Association
(1988) , 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. Onto (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 ascer~ained 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
1_-
55 .J
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
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 Employee Rela-
tions Act ( Al ta. ) , 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-
ra, 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
In 1990, in Professional Institute of the Public Service
of Canada (PIPS) 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 Lavigne, 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 Lavigne ac-
knowledged to some extent the existence of a "freedom not to
associate" 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 9harac-
terize the "freedom not to associate", and as LaForest, J
spoke for the minority in Lavigne, 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
........'-.
57 ...
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
i any organizing campaign where they were able to
i voice their views as to which organization and in
I
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 gave 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
.....---.
( 58 .J
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
.,
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 CUP 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. ..
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
,,--~
59 .,
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 0 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 agent for the employees in the positions
i 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
..
-
60
Dated at Toronto this 13th day of May, 1996
"I Dissent" (dissent to follow)
Michael Milich
Employer Nominee
..
l
!
Dissent
RE: Cupe, Local 1750 (Policy Grievance) and the WCB
GSB# 1029/94
I cannot concur with my colleagues in their decision in the above matter
As I 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 1,1993 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 14, 1993 and was
proclaimed February 14, 1993. The transition provisions of Part VI of the Act
have a direct impact on the meaning of "CECBA" incorporated in Article 1 01 of
the Collective Agreement.
We have no evidence what the parties intended by the reference to "CECBA" in
Article 1 01 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 further 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
Tribunal in Articles 1 03 and 1 04 With the exception to compJete 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 01 in the 1993 agreement because the transition provisions of
CECBA, 1993 overtake them.
Sections 53 to 60 (see attached) layout 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,
1993 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 Ad. 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
Ad would have applied if it had not been repealed. The 1993 agreement
between Cupe, Local 1750 and the WCB falls wholly within the parameters of
these provisions.
Section 66 (5) anticipating the resolution of collective agreements with terms
which cover both pre and post repeal periods states that the old Ad 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
Ad.
Section 57, which continues the application of the old Ad until negotiations for
which notice was given under it are completed, pennits 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 In the normal course of events, notice to bargain for
the 1994 collective agreement would have been given while the old Pd. was still
in effect. I submit that as long as the 1993 collective agreement is in force and
no other agreement is made, the old Ad continues to apply
Under these provisions there can be no doubt that the reference to "CECBA" in
Article 1 01 can only mean the Ad in force before CECBA, 1913 was
implemented. Under the old Ad the employees in dispute before us were
excluded from the bargaining unit. Since the Agreement was retroactive 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 repeat 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. It is not any agreement regardless
of its effective dates that must be negotiated by the parties before the
bargaining unit can be changed. I submit that the section refers to a collective
agreement with a term concurrent with the application of CEC8A, 1113, in 1994,
otherwise the relationship between sections 56 and 57 would make no sense.
The two provisions continue the application of the old Pd until matters which
started, or would have commenced, under its auspices are resolved. It may
very well have been a different matter if the agreement reached in 1994 was for
both 1993 and 1994. It was not.
Although the parties neither questioned this panel's jurisdidion nor argued that
the grievance was premature, I would still have dismissed the grievance for the
above reasons. The Charter would, therefore, have no bearing on this issue.
Clearly, the parties may still negotiate or pursue other avenues for a new
definition of the bargaining unit Unfortunatefy. I do not believe that this panef
has the jurisdiction to address this grievance outside the terms of the 1993
Collective Agreement.
M~ Milich
, tt/c c:;fJ' ;Yvc ~
--..,
1993 FONCTION PUBLlQUE ET RELATIONS DE TRAVAIL Pr de 101 117 25
i
retard indu ou un autre prejudice, iI
est opportun de proccder ainsi;
(b) the parties consent. b) les parties y consentent.
Same (4) The chair of the Grievance Settlement (4) Le president de la Commission de Idem
Board shall provide for a matter to be deter- rcglement des griefs prevoit que Ie president
mined by the chair or a vice-chair sitting ou un vice-president siegeant seul statue sur
alone following a request under subsection une question a la suite d'une demande pre-
6 (3) sentee en vertu du paragraphe 6 (3)
Agreement SO. -( 1) An employer and trade union SO (1) L'employeur et un syndicat peu- Ententecnlre
between the may make an agreement relating to matters lc~ parties
panics vent eonclure une entente concernant les .
that may be determined by the Grievance questions sur lesquelles la Commission de
Settlement Board that provides for, reglement des griefs peut statuer, qui prevoit
ce qui suit
(a) certain matters that arise between a) certaines questions sur lesquelles its ne
them to be determined by the chair or sont pas d'accord et sur lesquelles Ie
a vice-chair sitting alone; president ou un vice-president siegeant
seul doit statuer;
(b) the selection of the individuals who b) Ie choix des particuliers qui statueront
will determine certain matters; sur certaines questions;
(c) time limits within which hearings of c) les dcHais dans lesquels l'audition de
certain matters must commence. certaines questions doit debuter
Effect of (2) Upon receiving notice of an agreement (2) Des qu'elle est avisee d'une entente Pris~ d'effct
agreement . I C .. d . gl de I entente
from a party, the Grievance Settlement par une partIe, a ommlsSlon e re ement
Board shall give effect to it to the extent that des griefs y donne effet dans la me sure ou
its schedule permits. son horaire Ie lui pennet.
Same (3) The Grievance Settlement Board shall (3) La Commission de reglement des Idem
cease to give effect to an agreement upon griefs cesse de donner effet a une entente des
receiving notice from a party that the party qu'elle est avisee par une partie que celJe-ci
no longer wants the agreement to apply ne veut plus que l'entente s'applique.
Classification 51. An order of the Grievance Settlement 5 1 Les ordonnances de la Commission de Griefs tou-
grievances, Board shall not require the creation of a new ' I d . f d' . I chant la clas-
restriction reg ement es gne s ne Olvent pas eXlger a sification.
classification of employees or the alteration creation d'une nouvelle classification d'em- restriction
of an existing classification. ployes ni la modification d'une classification
exist ante.
PART VI PARTIE VI
MISCELLANEOUS DISPOSmONS DIVERSES
GENERAL DISPosmONS GENERALES
Committee 52. If the parties to a collective agree- 52 Si les parties a une convention eollee- Comitc res.
for classifica. . , ponsable des
lion issues ment respecting Crown employees request it, hv~ concernant des employes de la Couronne questions de
the Minister may establish a committee for Ie demandent, Ie ministre peut creer un classification
the discussion and resolution of classification comite qui discute des differends entre les
disputes between the parties. parties en matiere de classification et les
regIe
TRANSmONAL PROVISIONS DISPOSITIONS TRANSITOIRES
Definition 53 In sections 54 to 60, the "old Act" 53 Aux articles 54 a 60, I' <<ancienne 10;') Definition
means the Crown Employees Collective Bar- s'entend de la Loi sur la negociation collec
gaining Act, being chapter C.50 of the live des employes de la Couronne, qui consti-
Revised Statutes of Ontario, 1990. tue Ie chapitre C.50 des Lois refondues de
~~ l'Ontario de 1990.
Bargaining 54.-(1) A unit of employees that was a 54 (1) L'unite d'employes qui etait une V,nites de
units bargaining unit under the old Act immedi- . 'd ' ., d I' negoclallon
uOlte e negoclatlon aux termes e an
ately before the repeal of that Act is an cienne loi immediatement avant I abrogation
appropriate bargaining unit for the purposes de cette loi est une unite de negociation
of the Labour Relations Act until the descrip- appropriee pour I'application de la Loi sur
tion of the bargaining unit is altered under les relations de travail jusqu'a ce que la defi-
the Labour Relations Act nition de l'unite de negociation soit modifiee
26 Bill 117 PUBU RYleE AND LABOUR RELATIONS STATUTE l 1'j~.)
aux termes de la Lot sur les relations de
travail
Changes (2) Despite the Labour Relations Act, the (2) Malgre la Loi sur les relations de Modificalions
description of a bargaining unit referred to in travail, la definition de I'unite de negociation
subsection (1) cannot be altered until after a visee au paragraphe (1) ne peut pas etre
collective agreement is made following the modifiee avant qu'une convention collective
coming into force of this section. n'ait ete conclue apres I'entree en vigueur du
present article.
Exception (3) This section does not apply with (3) Le pres~nt article ne s'applique pas it Exception
respect to a bargaining unit established under l'egard d'une unite de negociation formee en
section 23. . vertu de I'article 23
Bargaining 55. A bargaining agent that, immediately 55 L'agent negociateur qui, immediate- Agents nego-
agents before the repeal of the old Act, represented I' b . d I" 1 . clateurs
ment avant a rogation e anClenne 01,
employees in a bargaining unit to which sec- representait des employes compris dans une
tion 54 applies continues to represent them, unite de negociation a laquelle s'applique
for the purposes of the Labour Relations Act, l'article 54 continue de les representer, pour
until the bargaining agent ceases, under that l'application de la Loi sur les relations de
Act, to represent them. travail, jusqu'a ce qu'il cesse, awe termes de
cette loi, de les representer
ColIective 56.-(1) A collective agreement under 56 (1) La convention collective visee par Conve~tions
agreements the old Act that had not expired before the 1" I"" . ., collecl1ves
anclenne 01 qUI n avalt pas expIre avant
repeal of that Act is a collective agreement l'abrogation de cette loi est une convention
under the Labour Relations Act collective awe termes de la Loi sur /es rela-
tions de travail.
Labour Rela- (2) All the provisions of the Labour Rela- (2) Les dispositions de la Loi sur /es re/a- Applicati?n
rions Act tions Act that apply to a collective agreement . d ./., r a delaLolSur
applies tlOns e traval qUI S app Iquent une con- les relations
apply to a collective agreement referred to in vention collective s'appliquent it la conven- de travail
subsection (1) including provisions that deem tion collective visee au paragraphe (1), y
collective agreements to contain specified compris les dispositions selon lesquelles les
terms. conventions collectives sont reputees contenir
des conditions precises.
Same (3) The Labour Relations Act applies (3) La Lai sur /es relations de travail ne Idem
under subsection (2) only with respect to s'applique awe termes du paragraphe (2) qu'a
periods after the repeal of the old Act. regard des periodes suivant l'abrogation de
l'ancienne loi.
Retroactive (4) The old Act applies, subject to subsec (4) L'ancienne loi s'applique sous reserve ~fet retroac-
collective ' . tif des con-
agreements tion (5), to a collective agreement if, du paragraphe (5), a une conventIon collec- ventions
tive si les conditions suivantes sont reunies collectives
(a) the agreement is made after the repeal a) la convention est conclue apres l'abro-
of the old Act but is. retroactive to a gation de I'ancienne loi, mais elle est
time before the repeal of that Act; and retroactive a une periode precedant
I'abrogation de celte loi,
(b) the old Act would have applied to the b) l'ancienne loi se serait appliquee a la
agreement had that Act not been convention si elle n'avait pas ete abro-
repealed. gee.
Same (5) The old Act applies under subsection (5) L'ancienne loi ne s'applique aux ter- Idem
(4) only with respect to periods before the mes du paragraphe (4) qu'A I'egard des
repeal of that Act. periodes precedant I'abrogation de cette loi.
Effect of (6) The establishment of bargaining units (6) La formation d'unites de negociation Prise d'effct
designation . ". de la deslgna.
under section 23 and the designation of a en vertu de I'artlcle 23 et la deSignation d'un lion
bargaining agent under section 24 does not agent negociateu" en vertu de I'article 24
affect the operation of a collective agreement n'ont aucun effet sur I'application d'une con-
in force at the time of the designati5'.;.I1.. vention collective en vigueur au moment au
la designation a ete affectuee.
Bargaining 57 -(1) If notice to bargain is given 57 (1) Si un avis d'intention de negocier Negociation
i, under subsection 8 (1) or 22 (1) of the old est donne en vertu du paragraphe 8 (1) ou
1 Act before this subsection comes into force 22 (1) de I'ancienne loi avant I'entree en
but a collective agreement has not been vigueur du present paragraphe, mais qu'une
convention collective n a pas ete conc1ue,
-......
, -
1993 FONCTION PUBLlQUE ET RELATIONS DE TRAVAIL Pr de loi 117 27
made, the old Act continues to apply until a I'ancienne loi continue de s appliquer jusqu a
collective agreement is made ce qu'une convention collective soit conclue
Exception (2) Despite subsection (1). the parties may (2) Malgre Ie paragraphe (1), les parties Exccpllon
agree that the old Act ceases to apply before peuvent convenir que I'anciennc loi cesse de
the collective agreement is made. s'appliquer avant que la convention collective
ne soit conelue.
\ Exception (3) This section does not apply with (3) Le present article ne s'applique pas a Exception
respect to a bargaining unit established under I'egard d'une unite de negociation formee en
,section 23. vertu de l'article 23.
Essc:ntial 58. If section 33 comes into force after an 58 Si I'article 33 entre en vigueur apres Ententes sur
seMces I d d' Id h bid' " , les SCMces
agreements. emp oyer an tra e umon wou ave een que l'emp oyeur et un syn Icat auralent ete csscnliels.
negotialions required, under that section. to begin negoti- tenus. aux tennes de cet article. de commen- ncgociations
ating an essential services agreement. the eer a negocier une entente sur les services
employer and trade union shall begin to essentiels. I'employeur et Ie syndicat com-
negotiate an essential services agreement as mencent a en negocier une Ie plus t6t possi-
soon as possible unless they agree to begin ble. a mains qu'ils ne conviennent de com-
negotiations later meneer plus tard les negoeiations.
Ont~rio 59 -(1) 10 this section. "Tribunal" 59 (1) Dans Ie present article. "Tri- Tribunal des
Public: h 0 . P bl" S . L b b I' d d T'b I d I' d relauons de
Service means t C otano u Ie ervlce a our una>> senten u n una es re atlons e travail de la
Labour Relations TnDunal. travail de la fonc-tion publique de l'Ontario. fonClion
Relalions publique de
Tribunal l'Ontario
Tnb~al (2) The Tribunal is continued for the pur- (2) Le Tribunal est maintenu afin de sta- M~intien du
conltnued f d' . f" I' . I" d d II Tnbunal
poses 0 ISpOslng 0 any matters 10 respect tuer sur es questions a egar esque es
of which an application was made to the Tri- une requete lui a ete presentee avant l'abro-
bunal before the repeal of the old Act. gation de l'ancienne loi.
Dissolution (3) The Tnbunal is dissolved on the day it (3) Le Tribunal est dissous Ie jour OU il Dissol,ution
of Tnbunal" f I f h f did "' d . . , du Tnbunal
disposes 0 the ast 0 t e matters re erre to statue sur a ernlere es questions Vlsees au
in subsection (2) or on a later day named by paragraphe (2) ou it la date ulterieure que Ie
proclamation of the Lieutenant Governor lieutenant-gouverneur fIXe par proclamation.
Old ,Act (4) Despite its repeal, the provisions of (4) Malgre l'abrogation de I'ancienne loi, Ad PPI,lication
continues to h Id 1 h T"b lid- . " d 11 " - e anclenne
apply t e 0 Act that re ate to ten una con- es lSpOSltlOnS e ce e-CI qUI se rapportent loi
tinue to apply with respect to the Tribunal au Tribunal continuent de s'appliquer it
and to the matters before it until the Tribu- l'egard du Tribunal et des questions dont il
nal is dissolved. est saisi jusqu'a ce qu'il soit dissous.
Reconsidera- (5) While the Tribunal is continued. it (5) Pendant qu'll est maintenu. Ie Tribunal Reexamen
lion may reconsider anything under section 39 of peut reexaminer tout ee qui est vise it l'article
the old Act and. after it is dissolved. the 39 de l'ancienne loi et, apres sa dissolution,
Ontario Labour Relations Board may recon- la Commission des relations de travail de
sider anything done by the Tribunal. l'Ontario peut reexaminer tout ce qu'a fait Ie
Tribunal.
ExiSI!ing 'f (6) If an undertaking is transferred, within (6) Si une entreprise est cedee. au sens de Requet~ I~n
app Icallon 1 h . f . 10 h'l I' I" 1 10 . I T"b I .<:..<:. ., cours SI en-
undertaking t e meanmg 0 section . W I e an app lca- artlc e . apres que e n una a..t.. salSl treprise eSI
transferred tion is before the Tribunal for representation d'une requete selon laqueIle il lui est cedee
rights in respect of the employees employed demande d'accorder Ie droit de representer
in the undertaking or for a declaration that a les employes qui sont employes dans I'entre-
trade union no longer represents the employ- prise ou de declarer qu'un syndicat ne
ees, the application shall be transferred to represcnte plus les employes. la requete est
the Board and the employer to whom the renvoyee a la Commission et I'employeur a
\ undertaking is transferred is the employer for qui l'entrepQse est cedee est l'employeur aux
the purposes of the application. fins de la requete.
A~t of the (7) Anything done by the Tribunal shall (7) Tout ce qu'a fait Ie Tribunal est ACles du-
Tnbunal '~,.., . Tnbunal
be deemed. after the old Act"1s repealed, to repute. apres I'abrogatlon de I'anclenne 101,
have been done by the Ontario Labour Rela- avoir ete fait par la Commission des relations
tions Board. de travail de rOntario.
Grievance 60.-(1) Section 51 applies with respect 60 (1) L'article 51 s'applique a I'egard cdomm1ission
Settlement II dr' " d I . .. I' b' e reg ement
Board to a matters referre lor arbitration to the e toutes es questions soumlses a ar Itrage des griefs
Grievance Settlement Board after June 14, de la Commission de reglcment des griefs
1993. apres Ie 14 juin 1993
28 Bill 117 PUBLIC SERVICE AND LABOUR RELATIONS STATUTE L .J 1993
Effect of (2) No reduction in the number of vice (2) Nulle reduction du nombre de vice- Reductions
reductions in e . d d b d I C .. sans effet
size chairs or members of the Grievance Settle- pr SI ents ou e mem res e a ommlSSlon
ment Board shall have any effect on a term de reglement des griefs n'a d'effet sur Ie
of a vice-chair or a member if tbat term mandat d'un vice-president ou d'un membre
began before the repeal of the old Act. si Ie mandat en question a debute avant
I'abrogation de I'ancienne loi.
Termination 61 -(1) The agreements described in sub- 61 (1) Les ententes mentionnees au Fin des
of trame- ententes
work agree- section (2) and agreements made under them paragraphe...(2) et celles conclues aux termes
ments are terminated at the end of 1994 de celles-ci prennent fin des que se termine
I'annee 1994
.
Same (2) The agreements referred to in subsec (2) Les ententes vi sees au paragraphe (1) Idem
tion (1) are the following: sont les suivanles
1. The memorandum of agreement dated 1 Le protocole d'accord en date du 21
July 21, 1989 between the Government juillet 1989 entre Ie gouvernement de
of Ontario and the Ontario Crown l'Ontario, l'Ontario Crown Attorneys'
Attorneys' Association and the Associ. Association et I' Association des avo-
ation of Law Officers of the Crown. cats de la Couronne.
2. The memorandum of agreement dated 2. Le protocole d'accord en date du
October S. 1990 between tbe Govern- S octobre 1990 entre Ie gouvernement
ment of Ontario and tbe Association de l'Ontario et I' Association des inge-
of Professional Engineers and Arcbi- nieurs et architectes du gouvernement
tects of the Government of Ontario. de l'Ontario.
Amended (3) This section also applies with respect (3) Le present article s'applique egalement I~clusion
agreements to an amended agreement that replaces an 'I" d d' d'f" d ententes
included a egar une entente mo I lee qUI rem- modifiees
agreement described in subsection (2). place une entente mentionnee au paragraphe
(2).
REpEALS ABROGATIONS
Repeals 62.-(1) The Crown Employees CoUective 62 (1) La 1.0; sur ltz negociation coUective Abrogations
Bargaining A.ct is repealed. des employes de ID Couronne est abrogee.
(2) Section 2 of the Public Service Statute (2) L'article 2 de la 1.oi de 1993 modifiant
Law Amendment Act, 1993 is repealed. des Iois en ce qui concerne /Q fonction publique
est abroge.
PUBUC SERVICE ACT LOI SUR LA FONcrION PUBUQUE
63.-(1) The Public Service Act is 63 (1) La 1.oi sur ltz fonction publique est
amended by adding the following heading modiftee par insertion de I'intertitre suivant
before section 1: avant I'article 1
PART l PARTIE I
GENERAL DISPOSITIONS GENERALES
(2) Clause 4 (b) of the Act is amended by (2) Valinea 4 b) de la Loi est modifie par
striking out "through bargaining pursuant to substitution, a <<en vertu de la 1.oi sur La nego-
the Crown Employees Collective Bargaining dation collective des employes de La Couronne>>
Act" in the last three lines and substituting aux trois dernieres lignes, de <<collective>>.
"through collective bargaining"
(3) Sections 11, 12, 13, 14, 15 and 16 of the (3) us articles 11, 12, 13, 14, 15 et 16 de
Act are repealed. la Loi sont abroges.
(4) The Act is amended by adding the Col- (4) La Loi est modiliee en outre par inser-
I lowing heading beCore section 26: tion de I'intertiy-e suivant avant I'article 26
I PART II PARTIE II
I
I, ONTARIO PROVINCIAL PQLlCE POLICE PROVINCIALE DE L'ONTARIO
I (5) The Act is amended by adding the Col- (5) La Loi est modifiee en outre par
I. lowing Part: adjonction de la partie suivante
Ii
II!
'II
"
~
~I
:i i
c.l