Loading...
HomeMy WebLinkAbout1999-0573.Pilon et al.03-01-06 Decision Crown Employees Commission de ~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0573/99 1254/99 1409/99 1802/99 1803/99 0199/00 0258/00 0448/00 1194/00 1291/00 1486/00 1537/00 0386/02 UNION# 99B661 99B960 99F025 00B060 00B061 00B062,00B157 00A370 00B216 00C131 00B408 01B042,01B043 01B044 01B054 02B351 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (PIlon et al) Grievor - and - The Crown m RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer - and - The AssoclatlOn of Law Officers of the Crown Intervenor BEFORE Richard Brown Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght Blair & Doyle Barnsters and SOhCltorS FOR THE EMPLOYER Stephen Patterson AssocIate DIrector Labour PractIce Group Management Board Secretanat FOR THE Kathleen J Martm INTERVENOR Sack Goldblatt Mitchell Barnsters and SOhCltorS HEARING October 1 2002 2 DECISION The Ontano Pubhc ServIce Employees UnIon (OPSEU) has referred to arbItratIOn a number of gnevances contendIng the MInIstry Improperly surplussed one or more employees In the classIficatIOn of Parental Support Worker (PSW) At thIS stage In the proceedIngs, OPSEU's complaInt IS hmIted to the transfer of famIly court work from PSW's to lawyers employed by the mInIstry ThIS Intenm decIsIOn deals exclusIvely WIth apphcatIOns to Intervene filed by the bargaInIng agent for the lawyers, the ASSOCiatIOn of Law Officers of the Crown (ALOC) I The factual backdrop for the gnevances IS summanzed In my Intenm decISIOn dated November 5, 2001 In an attempt to mInnnIZe the tnne devoted to heanng eVIdence, the partIes agreed to present legal argument based upon the facts alleged by the UnIon whIch are contaIned In AppendIx "A" to tlus decIsIOn My only task at tlus stage IS to determIne whether such facts would constItute przmafacle proof of a vIOlatIOn of the collectIve agreement PSW's worked In the MinIstry's local offices TheIr pnmary functIOn was to reduce the cost of benefits paid to welfare recIpIents by recovenng mOnIes to whIch they were entItled by way of spousal support or cluld support The welfare beneficIanes wIth whom PSW's worked were sole-support parents or dIsabled persons ThIS work occurred under the auspIces of the Famzly Benefits Act (FBA) The FBA was repealed along wlth the General We((are Act whIch had been admInIstered by mUnIcIpahtIes These two pIeces of legIslatIOn were replaced by the OntarlO Dlsab llzty Support Program Act ( 0 DSP A), admInIstered by the MInIstry, and the OntarlO Works Act, admInIstered by mUnIcIpal dehvery agents Under the new legIslatIve framework, dIsabled persons remaIn wIth the JunsdIctIOn of the MInIStry but sole-support parents fall under the JunsdIctIOn of mUnIcIpal dehvery agents The IntroductIOn of a new welfare regIme dId not change the substantIve law concernIng the relatIOnshIp between welfare benefits and support payments The MInIStry reqUIres mUnIcIpahtIes to employ FamIly Support Workers 3 (FSW's) who work wIth sIngle parents and do the same tasks as PSW's dId. The ODSPA also provIdes for the appoIntment ofFSW's wItlun the MInIstry At least some PSW's were appoInted as FSW's by the MInIstry dunng the transItIOnal penod between the old and new legIslatIve regImes, but all PSW's and FSW's were surplussed when the files of sole-support parent were transferred to mUnIcIpahtIes To some extent, the functIOns prevIOusly performed by PSW's are now carrIed out by people holdIng other posItIOns WIthIn the MInIStry Some of the work beIng done relates to closed cases InvolvIng sole-support parents The rest of the work beIng done concerns ongOIng matters related to dIsabled persons--I e matters whIch pre-date the 0 DSP A Work arISIng from new matters under the ODSP A IS beIng allowed to accumulate pendIng a decIsIOn on how It wIll be performed. In relatIOn to all of the work currently beIng done, the set of dutIes prevIOusly performed by PSW's have been dIvIded Into three parts and each part has been assIgned to a dIfferent component of the MInIStry The three components are (1) the Legal ServIces Branch In Toronto, (2) the Ontano Works Support ServIces Arrangements (OWSAS) Office also In Toronto, and (3) local offices In terms of the percentage of tIme PSW's devoted to these dutIes, the largest component of theIr functIOns went to the Legal ServIces Branch and the smallest component remaInS In the local offices OPSEU alleges all famIly court work was done by PSW' s AccordIng to thIS allegatIOn, PSW's spent between 35% to 40% of theIr tIme In court, excludIng tune they devoted to prepanng for court appearances All such work IS now done by lawyers who are not part of OPSEU' s bargaInIng UnIt (pages 3 and 4) The Intenm decIsIOn also contaInS a summary of the claim InItIally advanced by OPSEU In tlus proceedIng, OPSEU makes no claim to the work whIch has been transferred to mUnIcIpal dehvery agents The claim asserted relates to work beIng done by MInIStry staffwItlun the bargaInIng UnIt, work beIng performed by MInIstry staff outsIde the bargaInIng UnIt, and work whIch has accumulated. OPSEU contends the number ofPSW's reqUIred to perform all such work should not have been surplussed. Instead, they should have been desIgnated as FSW's and allowed to contInue to perform the tasks they had done In the past The arguments advanced by counsel for OPSEU are threefold. (1) the layoff ofPSW's contravened artIcle 20 of the collectIve agreement Interpreted wIth reference to sectIOn 22(4) of the Puhlzc Servlce Act (PSA), (2) the transfer of work outsIde the bargaInIng UnIt contravened an Imphed term of the collectIve 4 agreement protectIng the work of the UnIt, and (3) allowIng work to accumulate willie PSW's were laid off was an Improper exercIse of management nghts (pages 5 and 6) PrelllnInary ruhngs on each of these arguments were set out In the Intenm decIsIOn Deahng wIth OPSEU's first argument, I wrote What has been decIded about the apphcatIOn of sectIOn 22(4) [of the P SA] In thIS case, and what remaInS to be decIded, can be bnefly summanzed. I have concluded thIS sectIOn does not preclude the employer from dIVIdIng the work of PSW's aInong three components of the MInIstry and does not confer upon the gnevors any entItlement to the relatIvely small part of theIr dutIes assIgned to others In local offices or to the OWSAS Office Whether sectIOn 22(4) entItles the gnevors to follow the largest part of theIr dutIes to the Legal ServIces Office remaInS to be detennIned. (page 16) The Intenm decIsIOn contaIns the folloWIng prehmInary nllIng about OPSEU's second argument Based upon the numerous awards cIted by Brown and Beatty [In (>anadzan Labour ArbltratlOn], I have no hesItatIOn In concludIng the collectIve agreement at hand contaInS an Imphed restnctIOn on the perfonnance of bargaInIng UnIt work by all employees outsIde the bargaInIng UnIt, regardless of whether they have managenal responsibIhtIes The determInatIOn of whether thIS restnctIOn has been vIOlated In the case at hand must aWait further factual stIpulatIOns or eVIdence and further argument (page 20) As to OPSEU's thIrd argument that the mInIstry's decIsIOn to backlog work was an Improper exercIse of management nghts, I wrote AccordIng to Boulet, an Improper exercIse of management nghts IS compnsed of two elements (1) actIOn not In pursUIt of a legItImate government obJectIve, and (2) a curtailment of nghts under the collectIve agreement resultIng from such Improper actIOn As to the first element, OPSEU alleged the mOnIes recovered by PSW's on behalf of the MInIstry exceeded the cost of emploYIng them Based upon tlllS factual assertIOn, counsel for OPSEU submItted the decIsIOn to allow work to accumulate undennInes the accomphshment of the government objectIve of conservIng pubhc funds If the facts alleged are tnle, the UnIon would have presented a przma facle case that the MInIstry dId not act In pursUIt of a 5 legItImate objectIve The employer would then be called upon to explaIn Its conduct As to the second element of the Boulet standard, the gnevors wIll meet It only If theIr nghts under the collectIve agreement have been negated or hmIted by the Impugned management conduct If the employer has backlogged work for an IllegItImate purpose, the gnevors' enjoyment of nghts under the collectIve agreement would not be adversely affected unless they would have contInued as PSW's but for the pursUIt of an Improper objectIve In other words, decIdIng whether the gnevors' nghts have been curtailed reqUIres a detennInatIOn of whether the collectIve agreement permItted the employer to assIgn the contested work eIther to other employees or to people outsIde the pubhc serVIce rather than to PSW's (pages 23 and 24) II The Intenm decIsIOn prompted OPSEU to abandon any claim based upon the transfer of work from PSW's to other mInIstry employees In local offices or the OWSAS office The claim now advanced IS hmIted to famIly court work fonnerly perfonned by PSW's and currently beIng done by lawyers In the mInIstry's legal branch The mInIstry notIfied ALOC of these proceedIngs after the Issuance of the Intenm award. ALOC apphes for standIng In ItS own nght as bargaInIng agent for the lawyers now perfonnIng the contested work In the alternatIve, ALOC contends standIng should be granted to the IndIVIduals whose Jobs are placed In Jeopardy by the gnevances ArtIcle 1 0 of the "framework agreement" between ALOC and the Crown, dated June 6, 2002, recognIzes ALOC as the exclusIve bargaInIng agent for "lawyers employed In theIr professIOnal capacIty" except those workIng In the CnmInal Law DIvIsIOn The framework agreement also regulates the process of collectIve bargaInIng The most recent collectIve agreement between ALOC and the Crown, for the years 2001-2004, contaInS a recognItIOn clause IdentIcal to the one In the framework document as well as terms and condItIons of employment for members of the bargaInIng UnIt, IncludIng prOVISIOns dealIng wIth Job secunty 6 ALOC concedes there was no overlap In the dutIes ofPSW's and lawyers before the reorganIZatIOn gIVIng nse to these gnevances In a letter dated December 16, 2002, counsel for the mInIstry stIpulated the relevant facts I am advIsed that the lawyers In the Legal ServIces Branch dId not, except In very exceptIOnal cIrcumstances, appear In FamIly Court The CIrcumstances I was advIsed of were hmIted to two sItuatIOns, over the collectIve memory of the Branch, In whIch counsel had argued certaIn Issues that had ProvInce-wIde ImphcatIOns In both sItuatIOns the lawyer appeared wIth a PSW, argued the sIngle pohcy Issue and left the rest of the proceedIng to the handhng of the PSW F or the purposes of tlus proceedIng I tlunk we can agree that the lawyers dId not appear In FamIly Court pnor to the ImplementatIOn of the ODSP By letter dated December 20,2002, counsel for ALOC agreed wIth these comments III I recently revIewed the law relatIng to the nght of a tlurd party to be notIfied of an arbItratIOn heanng and to partIcIpate In It My award In Mlnzstry of Health and Long- Term Care and OPSEU, dated December 20,2001, GSB FIle No 1495/00, contaInS the folloWIng reVIew of all decIsIOns of the Ontano Court of Appeal and the Supreme Court of Canada and a number of arbItratIOn awards on thIS subject In Hoogendoorn and Greenzng Metal Products & Screenzng EqUlpment Co (1967),65 D.L.R. (2d) 641 (S C C ), the arbItrator dIrected the employer to dIsmIss Hoogendoorn If he contInued to refuse to pay UnIon dues as reqUIred by the collectIve agreement When he challenged thIS nllIng on the ground he had not receIved notIce of the heanng, the Supreme Court of Canada ruled In Ius favour ChIef JustIce Cartwnght quoted wIth approval the folloWIng passage from the dIssentIng OpInIOn of Mr JustIce Judson To reqUIre that notIce and the nght to be present be gIven to each employee on any occaSIOn when a collectIve agreement havIng general apphcatIOn to all employees was beIng Interpreted would be to destroy the prIncIple of the bargaInIng agent and vItIate the purposes of the [Labour RelatlOns] Act (page 642) 7 AgreeIng an employee IS not entItled to notIce merely because a contractual prOVISIOn of general apphcatIOn IS beIng Interpreted, the ChIef JustIce emphasIzed the unusual posItIOn In whIch Hoogendoom found hImself The reason that I dIffer from the result at whIch [Mr JustIce Judson] arrIves IS that I am unable to regard the arbItratIOn whIch was held as anythIng other than an InqUIry as to a sIngle questIOn, that IS, whether or not the employer was bound to dIscharge [Hoogendoorn] (page 643) ChIef JustIce Cartwnght noted employees are not entItled to notIce of an arbItratIOn merely because It Involves the InterpretatIOn of a contractual prOVISIOn applYIng to the workforce at large, even though such a ruhng may benefit some members of the bargaInIng UnIt at the expense of others Hoogendoom was entItled to notIce because Ius UnIon sought an order havIng a dIrect and substantIal adverse Impact on hIm alone In Bradley, the UnIon challenged SIX promotIOns made under a collectIve agreement reqUInng such appoIntments to be based on the senIonty and efficIency of candIdates The arbItrator dIrected that five of the appoIntments be revoked. The Ontano Court of Appeal quashed the award because the employees dIsplaced by It had not receIved formal notIficatIOn that theIr jobs were In jeopardy Mr JustIce LaskIn wrote A collectlve agreement lS a unzque legal znstltutzon because, desplte the generalzty of ltS terms as part of a bargazn made between a representatlve unzon and an employer, ltS eXlstence and applzcatzon result zn personal benefits to the employees who are covered by It Once It lS accepted, as It must be, that the benefits runnzng to employees may d~frer accordzng to Job classificatzon or senzorzty rankzng (to take two lllustratzons), and that the representatlve unzon lS put to a chozce between employees who competed for the same preferment as to whlch It wlll support agaznst a different chozce made by the employer, substantlve employment benefits of partlcular employees are put zn lssue and they are entltled to protect them ~r the unzon wlll not It follows that they are entltled to notlce of arbltratzon proceedzngs taken to test thelr rzght to contznued enjoyment of the benefits The fact that partIcular prOVISIOn for notIce IS not made eIther In the statute or In the collectIve agreement IS of no moment The common law has been specially sensItIve to depnvatIOn of property or contractual advantages In proceedIngs of an adjudIcatIve character wIthout prevIOus notIce thereof to persons likely to be dIrectly affected, unless there IS a clear statutory exclusIOn of such notIce In the present case, there IS none (pages 381 and 382, emphasIs added) 8 The essence of the reasonIng In Bradley IS found In the ItahcIzed passage and warrants close eXamInatIOn It begIns wIth the premIse that a collectIve agreement IS a "unIque legal InstItutIOn", negotIated by an employer and UnIon, but governIng the workIng condItIons of all members of the bargaInIng UnIt, It goes on to note a UnIon sometImes IS "put to a chOIce between employees" competIng wIth one another, and It leads to the conclusIOn that an employee IS "entItled to notIce of arbItratIOn" when the UnIon dIrectly opposes the IndIVIdual's Interests ThIS conclusIOn and the basIs for It both precede any reference to the common law's protectIOn of "property or contractual advantages" The common law IS drawn upon for the sole purpose of rebuttIng the argument that there IS no entItlement to notIce because It IS not mandated by legIslatIOn In other words, the InstItutIOnal tool used to supply a reqUIrement of notIce IS the common law rather than statute, but the reason for reqUInng notIce In the first place remaInS the "unIque" legal character of a collectIve agreement and the posItIOn of a bargaInIng-unIt employee whose Interests are dIrectly JeopardIzed by a gnevance The Important pOInt, sometImes glossed over In subsequent cases, IS that Mr JustIce LaskIn's ratIOnale for demandIng notIce apphes only to employees governed by a collectIve agreement The specIfic Issue In Bradley and Hoogendoorn was notIficatIOn of a heanng, but the nllIngs In these two cases generally have been apphed by arbItrators as confernng upon employees not only an entItlement to be notIfied of a heanng, but also a nght to partIcIpate In one, In appropnate cIrcumstances Insofar as employees are concerned, no dIstInctIOn has been drawn between notIce and partIcIpatIOn ThIS may explaIn why the dIstInctIOn has not receIved sufficIent attentIOn In some later cases InvolvIng other types of tlurd partIes The law relatIng to thIrd-party UnIons developed agaInst the legal backdrop of Bradley The leadIng decIsIOn IS Canadzan Broadcastzng Corp (CBC) where an arbItrator Interpreted a collectIve agreement between CBC and IASTE and nlled stagIng and hghtIng work should be performed by employees governed by tlus agreement CBC employees represented by CUPE were dOIng the stagIng work and employees of the corporatIOn represented by NABET the hghtIng work. On JudIcial revIew, the two tlurd-party UnIons successfully challenged the arbItrator's award because they had not receIved notIce of the heanng SpeakIng for the Ontano Court of Appeal, Mr JustIce Carthy wrote My thznkzng starts wlth the practlcal common-sense compulslOn to put all of these partles zn one room, before one trzbunal, to obtazn one rulzng on thelr differences Upon analysIs I find that legal precedent supports that VIew 9 The practIcal ratIOnale cannot be better put than In the maJonty decIsIOn In Re Toronto (Munzclpalzty) and C u.p E, Local 43 (1989), 5 L.A.C (4th) 404 The gnevance was by Local 43 ofCUPE complaInIng that work to whIch they were entItled was beIng assIgned to Local 79 of CUPE Local 79 wanted status before the arbItratIOn board and Local 43 objected In theIr reasons, the maJonty said pp 410-1 Here we have one employer and two UnIons, each of whIch IS bound to such a system of dIspute settlement wIth the common employer It IS academIcally correct, but totally ImpractIcal to say that In dIsputes such as the one before us, the board should deny status to the other UnIon HavIng said that, It must also be said that It IS totally nnpractIcal to say that the IntervenIng UnIon, havIng sought and been gIven status, IS not bound by the award of thIS board. That sort of outcome, as well as beIng nnpractIcal, IS not fair to Local 43, who InItIated these proceedIngs, and It IS not fair to the employer who IS bound by our award. If Local 79 IS not bound, the employer mIght have to go the very same process In reverse, under the Local 79 collectIve agreement, and could possibly, although one would hope not, be subject to a completely contrary award from another board. Weare bound by the nlles of natural JustIce to gIve the prIncIpal partIes a fair heanng and to extend to affected partIes a sImIlar nght to be heard. It IS our ruhng that Local 79 does have a nght to appear before us and to have status as a party However, It IS our vIew that we can lmpose, as a condltzon to that partlclpatzon, that they accept the jurzsdlctzon of th,s board over the lssue before us and submlt to be bound by our declszon (pages 177 and 178, emphasIs added) After quotIng the sentence from Bradley about common law protectIOn of "property or contractual advantages", Mr JustIce Carthy turned to the facts at hand and ruled. In my VIew, It was unfair and constItuted a failure of natural JustIce to deal wIth the employment opportunItIes of the CUPE and NABET UnIon members, In the CIrcumstances of tlus case, In the absence of notIce and an opportUnIty to seek Involvement In the decIsIOn-makIng process (page 181) 10 The Court of Appeal held the thIrd-party UnIons were entItled to "notlce and an opportunzty to seek znvolvement zn the declslOn-makzng process", even though they would not be bound by an arbItratIOn award unless they agreed to abIde by It The court dId not say these UnIons, If they had receIved notIce, would have been entItled to be heard by the board of arbItratIOn Instead, Mr JustIce Carthy acknowledged a "practIcal common-sense compulsIOn" to resolve the dIsputes between UnIons by havIng all of those Involved heard by one tribunal whose nllIng would bInd all of them ThIS compulsIOn lead hIm to commend the decIsIOn In Metropolztan Toronto where ArbItrator Stanley granted standIng to a thIrd-party UnIon on the condItIon that It consent to be bound by hIS award. Mr JustIce Carthy's endorsement of tlus approach suggests he was of the OpInIOn that a thIrd-party UnIon would not be entItled to partIcIpate In a heanng unless It agreed to abIde by the resultIng decIsIOn The court's OpInIOn about partIcIpatIOn at the heanng IS oblter because the ruhng on notIce was sufficIent to dIspose of the matter at hand The Supreme Court of Canada sustaIned the judgement below whIch held the thIrd-party UnIons should have been notIfied of the arbItratIOn The court went on to say What transpIres once notIce of the arbItratIOn IS gIven wIll be up to the partIes For example, they may consent to submIt to the jUnSdIctIOn of the arbItrator so that the jUnSdIctIOnal dIsputes of the UnIon can be resolved. AlternatIvely, they may wIsh to take steps to attempt to have the matter detennIned by the Canada Labour RelatIOns Board Whatever steps may be taken by the partIes, the court cannot, sImply by ItS order, bestow upon the arbItrator jUnSdIctIOn that does not flow eIther from a statutory prOVISIOn or from the consent of the partIes The lmportant lssue resolved by th,s appealls that those slgnificantly affected by the arbltratlOn should recelve notlce of the proceedzngs Fazrness and naturaljustlce reqUlre no less No other judlczal dlSposltlOn should be made at th,s stage (page 768, emphasIs added) The ItahcIzed passage expressly restncts the nllIng to the Issue of notIce The court refraIned from expreSSIng any OpInIOn about tlurd-party standIng to partIcIpate In an arbItratIOn heanng As the court suggested In the first paragraph quoted, a nght to notIce IS valuable, even wIthout an accompanYIng nght to standIng, because notIce alone gIves a thIrd-party UnIon an opportunIty to refer a jUnSdIctIOnal dIspute to the labour relatIOns board or to submIt to the authonty of an arbItrator and then to seek to partIcIpate In the arbItratIOn on thIS footIng 11 On the subject of thIrd partIes beIng bound by an arbItral award, the Supreme Court said. In oblter comments the Court of Appeal went on to IndIcate that the arbItrator hearIng the appellant's gnevance would have jUnSdIctIOn, de5,plte the absence of consent of all partIes concerned, to determIne the jUnSdIctIOnal dIspute InvolvIng the three UnIons The respondents dId not seek to uphold that portIOn of the reasons of the Court of Appeal They were nght to take that posItIOn (page 768, emphasIs added) In my respectful VIew, tlus passage rests upon a mIsunderstandIng of the Court of Appeal's oblter remarks Mr JustIce Carthy's comments about the apphcatIOn of an award to tlurd partIes are quoted above As that quotatIOn demonstrates, he acknowledged a compulsIOn to fashIOn a process allowIng all concerned to appear before one decIsIOn-maker empowered to dIspose of the entIre dIspute, but he never said a thIrd party would be bound by an award wIthout ItS consent Rather, he endorsed the approach taken In Metropolztan Toronto where the thIrd- party unIon's partIcIpatIOn at arbItratIOn was made condItIonal on It abIdIng by the outcome The Supreme Court offered no OpInIOn on the propnety of treatIng standIng In tlus way The decIsIOns In Bradley and CBC provIded the legal context for recent developments In the law relatIng to tlurd-party employers In Fanshawe College and Canada Post These two cases have much In common ThIrd-party employers appeared before each board of arbItratIOn askIng to partIcIpate In the heanng, makIng the Issue one of partIcIpatIOn rather than notIce In both cases, the gnevance was double pronged one prong sought to tennInate the employer's contractual relatIOns wIth the thIrd partIes, and the other prong claimed persons nomInally employed by them were actually employees of the employer sIgnatory to the collectIve agreement at Issue In each case, the second prong of the gnevance led the arbItrator to allow the thIrd-party employers to take part In the heanng ArbItrator Brent In F anshawe College suggested Bradley could be read narrowly or broadly AccordIng to a narrow readIng, the Court of Appeal's decIsIOn would apply only to employees "In danger of lOSIng a benefit" under the collectIve agreement If theIr UnIon prevailed at arbItratIOn (page 166) Based on a broader readIng, apparently denved from Mr JustIce LaskIn's comments about the common law protectIng "property or contractual advantages", the ruhng would apply to anyone who "may be dIrectly affected" by an arbItral award (pages 166-167) In choOSIng between these dIvergent VIews of standIng, ArbItrator Brent rehed upon the Court of Appeal decIsIOn In CBC She took from tlus judgement the proposItIOn that "standIng IS not restncted to those wIth an 12 Interest under the collectIve agreement under whIch the gnevance arose" (page 167) ComIng to the same general conclusIOn about the state of the law, ArbItrator Emnch In Canada Post rehed upon the Supreme Court Judgement In CBC whIch was Issued after the F anshawe College award, she also adopted a broad apphcatIOn of Bradley (pages 49 and 50) By relYIng upon the CBC case to allow thIrd-party employers to partIcIpate In a heanng, the arbItrators In Fanshawe College and Canada Post faIled to recognIze the Important dIstInctIOn between notIce and partIcIpatIOn As the Supreme Court stated In CBC, notIce was the only Issue In that case reqUInng 'JudIcial dISposItIOn" The court said nothIng about the nght of a thIrd-party UnIon to take part In a heanng wIthout agreeIng to abIde by the award. SpeakIng for the Court of Appeal, Mr JustIce Carthy endorsed the nllIng In Metropo lz tan Toronto that a tlllrd-party UnIon has no nght to be heard unless It voluntanly submIts to the authonty of the arbItrator In short, neIther Judgement In CBC provIdes a foundatIOn for the proposItIOn that a tlllrd party IS entItled to partIcIpate In an arbItratIOn heanng absent consent to be bound by the resultIng award. Whatever the ments of the legal reasonIng In F anshawe College and Canada Post, the arbItrator In each of these cases clearly stated standIng would have been denIed to the tlllrd-partIes If the bargaInIng agent had sought only to termInate theIr contractual relatIOns wIth the employer bound by the collectIve agreement beIng apphed StandIng was granted In these cases exclusIvely because of the UnIon's attempt to treat persons nomInally employed by the thIrd- partIes as employees governed by ItS collectIve agreement In Fanshawe College, ArbItrator Brent wrote rr the only relzef requested were a cease and deslst order [relatIng to contractIng out] then we would be dlsposed to agree wlth the unlOn that the {thlrd-partyJ hmpltals have no standzng zn th,s case WhIle IS true that there IS a contractual relatIOnshIp of some sort between the college and the hospItals whIch may be affected If a cease and desIst order were granted, an award of thIS board could not affect the legal relatIOns between the hospItals and the college The employer cannot rely upon an award of the board of arbItratIOn as a defence to any SUIt for breach of contract or any actIOn for daInages Further, In the arbItratIOn proceedIngs the Interest of the outsIde contractor and the employer are IdentIcal because both would only want to see the collectIve agreement Interpreted to allow contractIng out of the dIsputed work. In th,s case though, the unlOn lS not slmply askzngfor a cease and deslst order It lS askzngfor relzefthat would affect the contract of employment whlch we are told eXlsts between the hmpltals and the 13 zndlvlduals Such an order, If granted, could potentIally remove someone from the employ of the hospItal and place that person under the dIrectIOn and control of another employer, or perhaps create a sItuatIOn where one employee IS employed by two employers In any event, It would change eXIstIng employment relatIOnslllps between the IndIVIduals and the hospItals The nature of the rebef requested therefore glves the hmpltals an znterest whlch lS different from the college's and whlch cannot reasonably be protected zn any anotherforum but th,s Therefore we find that, as In C.B C , supra, fairness and natural JustIce dIctate that the hospItals be recognIzed as partIes to these proceedIngs (pages 168 and 169) ThIS passage was quoted wIth approval and apphed by ArbItrator Emnch In Canada Post (pages 52 and 53) In saYIng a contractor IS not entItled to standIng at arbItratIOn merely because a gnevance objects to thIS thIrd party dOIng bargaInIng-unIt work, the arbItrators In Fanshawe (1011ege and (1anada Post fell Into step wIth the approach taken In two cases cIted by counsel for OPSEU In both A venor and Consumers Glass, standIng was denIed to a thIrd-party contractor who would lose busIness If a contractIng out gnevance was allowed. In Avenor, one of the reasons gIven by ArbItrator Bendel for denYIng standIng was that the contractor, Upsala, could pursue a claim agaInst the employer In court, whereas an employee In a case like Hoogendoorn or Bradley would have had "no effectIve recourse" If barred from arbItratIOn (page 78) The denIal of standIng was also based on the fact that the contractor was not attemptIng to defend any legal Interest "grounded In labour or employment law" (page 77) Here ArbItrator Bendel rehed upon the Supreme Court's decIsIOn In Canadzan RadlO- TelevlslOn and TelecommunzcatlOns CommlsslOn (CRTC) In that case, the CRTC granted Shaw Cable Systems the nght to Install cables on stnlctures owned by B C Tel As bargaInIng agent for B C Tel employees, the TWU complaIned It had not been notIfied of the heanng before the CR TC, even though ItS collectIve agreement gave UnIon members the nght to perform all work on the structures In questIOn Madame JustIce L'Heureux-Dube wrote The CR TC decIsIOn concerned questIOns of telecommUnICatIOns pohcy The CR TC was reqUIred to decIde on the best way to regulate a monopoly telephone company In order to preserve the pubhc Interest The purpose behInd the CRTC decIsIOn was totally unrelated to the "workJunsdIctIOn" of the TWU In fact, such a consIderatIOn would have been Irrelevant to the CRTC decIsIOn (page 482) 14 Just as the Supreme Court treated the TWU's entItlement under Its collectIve agreement as Irrelevant to the subject before the CRTC, ArbItrator Bendel treated Upsala's contract wIth the employer as havIng no beanng on the Issue to be arbItrated by hIm (pages 6 to 16) In Mlnzstry of Health and Long- Term Care, I went on to recount the lessons emergIng from the foregoIng cases about thIrd-party notIce and standIng The most Important lesson IS that not all categones of tlllrd partIes are the same The dIfferences between one type of thIrd party and another should not be Ignored. Employees covered by a collectIve agreement are thIrd partIes In a sense, because the agreement IS between the employer and the UnIon, but these employees have a connectIOn to the agreement whIch other thIrd partIes can never have As emphasIzed by Mr JustIce LaskIn In Bradley, a collectIve agreement IS "a unIque legal InstItutIOn", negotIated by representatIves of labour and management, but estabhshIng terms and condItIons for everyone In the bargaInIng UnIt An employee In the UnIt IS precluded by statute from negotIatIng and enforcIng a personal contract whIch IS InCOnsIstent WIth the collectIve agreement Most such agreements govern all of the Important aspects of the employment relatIOnshIp, leavIng httle room for IndIVIdual deahngs These features of our statutory regIme of collectIve bargaInIng underhe the decIsIOn In Bradley The employees at nsk of beIng dIsplaced If theIr unIon's argument was accepted by the arbItrator were entItled to be notIfied of the heanng because arbItratIOn was the only legal fonlm where they could defend theIr Interest In the contested jobs In stark contrast to employees governed by a collectIve agreement, other tlllrd-partIes have the legal capacIty to negotIate and enforce contracts desIgned to protect Interests whIch mIght be adversely affected by the outcome of an arbItratIOn As ArbItrator Bendel remarked In Avenor, the thIrd-party there had access to the courts to uphold any contract already negotIated wIth the employer party to the collectIve agreement Just as employees stand In a dIfferent posItIOn than all others, the remaInIng categones of thIrd partIes also dIffer The posItIOn of a contractor deahng wIth an employer bound by a collectIve agreement IS unlike both the sItuatIOn of a UnIon Involved In a jUnSdIctIOnal dIspute and the sItuatIOn of an outsIde employer whose nomInal employees are alleged by the gneVIng UnIon to fall under ItS collectIve agreement ThIS pOInt can be Illustrated by IdentIfYIng the factual sllnIlantIes between CBC and Fanshawe College and then contrastIng the scenarIO In these two cases wIth the settIng In Avenor 15 In CBC, the gneVIng UnIon claimed hghtIng work performed by members of one tlllrd-party UnIon and stagIng work perfonned by members of another As neIther type of work could belong to two bargaInIng agents, the claim asserted In the gnevance dIrectly contradIcted the one made by another UnIon The legal Issues ansIng from each of these competIng claims were matters of labour law If the jUnSdIctIOnal dIspute In CBC was tYPIcal, each UnIon rehed upon an ambIguous provIsIOn In ItS agreement, whIch dId not specIfically mentIOn all of the tasks In dIspute, and could not be Interpreted properly wIthout resortIng to the hIstory of members of each UnIon dOIng the contested work If the two UnIons pursued theIr claims In separate arbItratIOns, there would be a duphcatIOn of eVIdence of the common employer's past practIce In assIgnIng work. There also would be a potentIal for conflIctIng awards, wIth the first arbItrator ruhng future work should be assIgned to one unIon, and the second arbItrator awardIng the very same work to the other These charactenstIcs of jUnSdIctIOnal dIsputes are the source of the Court of Appeal's "practIcal common sense compulsIOn" to have the competIng UnIons and the employer heard by one tnbunal whose decIsIOn would bInd all of them The same charactenstIcs led the Supreme Court to remark that notIce mIght prompt a tlllrd-party UnIon eIther to refer ItS jUnSdIctIOnal dIsputes to the labour relatIOns board or to submIt voluntanly to the authonty of the arbItrator heanng another unIon's gnevance The factual settIng In CBC IS analogous to the sItuatIOn In F anshawe College In several ways The gnevance In that case alleged certaIn persons, nomInally In the employ of a thIrd party, actually were employed by the employer bound by a collectIve agreement wIth the gneVIng UnIon As a person cannot have two employers In relatIOn to the same work, the employment relatIOnslllP alleged by the UnIon contradIcted the one asserted by the tlllrd-party employer Each of these competIng claims Involved Issues of labour law The eVIdence relevant to one claim overlapped substantIally the eVIdence relevant to the other, because the vahdIty of each depended In large measure upon the context In whIch the contested employees dId the work In Issue There was also the potentIal for dual legal proceedIngs whIch would canvass much the same eVIdence and possIbly produce conflIctIng decIsIOns as to the IdentIty of the true employer Each of these features of F anshawe College has an analogue In CBC Almost all of the elements common to Fanshawe (1011ege and (1B(1 are mISSIng In Avenor where the UnIon sought only to recover work beIng perfonned by a contractor The unIon's contentIOn that ItS collectIve agreement prohibIted contractIng out would conflIct WIth any contract, between the employer and the thIrd party, assIgnIng the contested work to It To the extent the gnevance dId colhde wIth a legal entItlement asserted by the contractor, the case IS analogous to Fanshawe College and CBC, but the analogy ends there There are a number of sIgnIficant dIfferences FIrst, as noted by ArbItrator Bendel In Avenor, no Issue 16 of labour law would be posed by any nght the contractor mIght assert Second, the facts relevant to any legal claim made by the contractor would not be the same as those pertInent to the umon's gnevance ThIrd, there was no chance of IrreconcIlable decIsIOns about who should do the work In future If the arbItrator ruled that the dIsputed work could be done only by members of the bargaInIng umt, there would be no nsk of aJudge awardIng such work to the contractor, because the remedy aVailable In court would be damages rather than specIfic performance These three features dIStIngUISh Avenor from CBC and Fanshawe College The same features also explaIn why contractors have been treated less favourably In relatIOn to notIce and standIng than have thIrd-party umons and tlllrd-party employers A contractor seekIng standIng at arbItratIOn has a footIng no more secure than the umon demed notIce of a regulatory heanng by the Supreme Court In CRTC NeIther of these thIrd partIes have a legal claim whIch IS germane to the Issue beIng adJudIcated. They do have a financial stake In the outcome of the adJudIcatIOn, but thIS sort of Interest does not confer an entItlement to be notIfied of a hearIng or to partIcIpate In one (pages 16 to 20) IV ConcedIng a thIrd party IS not entItled to partIcIpate In a heanng unless It has "a sIgmficant legal Interest" In the matter beIng arbItrated, counsel for ALOC rehes upon two awards grantIng standIng to a thIrd-party umon (1) OntarlO Hydro and OntarlO Hydro Employees UnlOn (1990), 17 L.A.C (4th) 213 (P PIcher), and (2) Management Board Secretarzat and AssoczatlOn of Management, Admlnzstratlve and ProfesslOnal Crown Employees 0.( Ontarzo, decIsIOn dated Apn122, 2002, GSB FIle No 1357/00 (Knopf) In OntarlO Hydro, the board of arbItratIOn was asked to detennIne whether a tlllrd party umon was entItled to partIcIpate In a senes ofheanngs, known as "PW-31" arbItratIOns, held to determIne whether certaIn employees of Ontano Hydro were members of the bargaInIng umt represented by the Ontano Hydro Employees Umon (OHEU) The tlllrd-party umon, the SocIety of Ontano Hydro ProfessIOnal & AdmInIstratIve Employees, sought to Intervene The SocIety represented another 17 bargaInIng UnIt of Ontano Hydro employees, although It had not been certIfied and the Ontano Labour RelatIOns Board had ruled It was estopped from assertIng that Its master agreement WIth the employer was a collectIve agreement wIthIn the meanIng of the governIng labour relatIOns legIslatIOn In an award Issued before the Supreme Court of Canada's decIsIOn In CBC, ArbItrator PIcher wrote It IS clear from the recItatIOn of the facts In the O.L.R.B decIsIOn that the SocIety has had a long-standIng bargaInIng relatIOnshIp wIth Hydro whIch has evolved over numerous renewed agreements The bargaInIng relatIOnshIp IS In respect of a clearly defined bargaInIng UnIt, It covers negotIatIOn, tenns and condItIons of employment and bIndIng conflIct and gnevance resolutIOn The SocIety IS the representatIve of the members of the bargaInIng UnIt As noted In the O.L.R.B decIsIOn, the SocIety, absent certIficatIOn, does not have the nght to the status of an exclusIve and sole bargaInIng agent, another body could seek to become the representatIve As It stands now, though, It IS the representatIve of the members of the bargaInIng UnIt It IS undIsputed that at least some of the posItIOns that are In Issue In the PW-31 arbItratIOns arguably fall wItlun the bargaInIng UnIt defined In the SocIety's Master Agreement In such cases, If the OHEU IS successful In the PW- 31 arbItratIOn proceedIngs, the SocIety could lose posItIOns from ItS bargaInIng UnIt On the basIs of the eXIstence of ItS long-standIng bargaInIng relatIOnshIp wIth Hydro, ItS clearly definable nghts and obhgatIOns under the Master Agreement, In respect of the members of the clearly defined bargaInIng UnIt, thIS board IS satIsfied that the SocIety has a substantIal legal Interest under ItS contract WIth Hydro whIch may be put at nsk In a PW-31 arbItratIOn between Hydro and the OHEU AccordIngly, and drawIng on the decIsIOn of the Court of Appeal In CUPE v CBC, supra, tlus board concludes that the SocIety IS entItled to notIce of and to partIcIpate In those PW-31 arbItratIOns where the posItIOns In Issue arguably fall wItlun the SocIety's bargaInIng UnIt as defined In ItS Master Agreement wIth Hydro (pages 233 and 234, emphasIs added) In Management Board Secretarzat, the ASSOCiatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (AMAPCEO) sought a declaratIOn that It represented a "tag-end" UnIt compnsed of all crown employees, other 18 than lawyers and engIneers, who dId not belong to one of the SIX UnIts represented by OPSEU, the tlurd party VIce-Chair Knopf stated her understandIng of the decIsIOns of the Court of Appeal and the Supreme Court In CBC One should begIn wIth the legal analysIs of the standIng Issue The questIOn of tlurd party status In a gnevance arbItratIOn IS both a natural JustIce and a labour relatIOns Issue On a basIc level, gnevance arbItratIOn IS desIgned to resolve a dIspute under a collectIve contract However, If the detennInatIOn of that gnevance wIll have a sIgnIficant effect upon another party, natural JustIce demands that the thIrd party be gIven status and appear to be able to protect ItS posItIOn In those proceedIngs ThIS concept was set out In the CUPE and CBC case, supra. (pages 11 and 12) TurnIng to the facts at hand, Ms Knopf wrote [T]he basIs of OPSEU's nght to partIcIpate flows from the essence of AMAPCEO's gnevance It claims ItS bargaInIng UnIt covers anyone not Included In the SIX OPSEU bargaInIng UnIts The determInatIOn of that questIOn bnngs thIS arbItratIOn Into a dIrect analysIs of the OPSEU bargaInIng UnIts and theIr scope To make a decIsIOn about those Issues wIthout OPSEU present as a party would not only deny OPSEU natural JustIce, It would also create unnecessary labour relatIOns dIfficulty The recItal of Issues raised by AMAPCEO's gnevance shows some sIgnIficant dIfferences between AMAPCEO and OPSEU over certaIn groups of employees IncludIng OPSEU In these proceedIngs wIll resolve those questIOns for the Employer and these two UnIons ExcludIng OPSEU from the proceedIngs allows the possibIhty that It could launch a new case In the future that may well be greatly Influenced by these results, but would nonetheless engage the Employer In further protracted proceedIngs Therefore, for all these reasons, It makes labour relatIOns sense and IS consIstent WIth the concepts of natural JustIce to grant OPSEU tlurd party status In tlus case (page 16) OPSEU was allowed to partIcIpate In the heanng on the condItIon that It agreed to be bound by the resultIng award. In both OntarlO Hydro and Management Board Secretarzat, a nght to partIcIpate was afforded to the tlurd-party UnIon because the Issue In dIspute was whether the contested posItIOns belonged In ItS bargaInIng UnIt or the UnIt represented by the gneVIng UnIon In other words, the grant of standIng was based upon a legal Interest 19 ansIng from the thIrd party's collectIve agreement As a posItIOn must belong exclusIvely to a sIngle UnIt, the claim asserted In the gnevance contradIcted the one made by the Intervenor Each of these competIng claims Involved Issues of labour law There was a possibIhty of the thIrd party InItIatIng separate arbItratIOn proceedIngs whIch would Involve much the same eVIdence as the first heanng and could produce a conflIctIng decIsIOn Each of these features In Ontarzo Hydro and Management Board Secretarzat have an analogue In both CBC and Fanshawe College and some or all of these features explaIn why standIng was granted to a tlurd party ThIS analysIs leads me to conclude the decIsIOns In Ontarzo Hydro and Management Board Secretarzat are consIstent WIth my conclusIOns about the law of standIng as stated In Mlnzstry of Health and Long- Term Care V How do the general prIncIples estabhshed by the case law apply to the facts at hand? If thIS board allows the gnevances before It, the mInIstry could be ordered to reverse the challenged transfer of famIly court work from PSW's to lawyers represented by ALOC The loss of tlus work would adversely affect ALOC and some members of ItS bargaInIng UnIt NotwIthstandIng thIS potentIal harm, the lawyers In questIOn and theIr bargaInIng agent are In a dIfferent posItIOn than the tlurd-party employees In Hoogendoorn and Bradley They were at odds wIth theIr unIons, bound by the collectIve agreements beIng arbItrated and wIthout the legal capacIty to engage In deahngs InCOnsIstent WIth those agreements If barred from arbItratIOn, they had no legal recourse to protect Interests whIch mIght be abrogated by an award. ALOC does have the legal capacIty to negotIate and enforce a collectIve agreement wIth the mInIstry on behalf of ItS members In fact, ALOC's current collectIve agreement contaInS Job-secunty prOVISIOns reqUInng notIce of layoff and specIfYIng the order In whIch employees are to be laid off There IS 20 nothIng to suggest ALOC IS not prepared to enforce these prOVISIOns on behalf of any lawyers adversely affected by the outcome of tlus arbItratIOn The posItIOn of ALOC also dIffers from the sItuatIOn of the thIrd-party employer In Fanshawe College and the thIrd-party UnIons In CBC, OntarlO Hydro and Management Board Secretarzat, all of whom were held to be entItled to eIther notIce or standIng In those cases, a tlurd party asserted a legal claim whIch dIrectly contradIcted the one made In the gnevance The thIrd party's claim raised Issues of labour law and Involved facts largely overlappIng those relevant to the gnevance There was a potentIal for dual proceedIngs whIch would canvass the same facts and possIbly produce conflIctIng decIsIOns All of these features dIStIngUISh those cases from the one at hand because there IS no cogent argument that ALOC has any legal claim to the work fonnerly done by the gnevors Counsel for ALOC rehes upon the recognItIOn clause makIng her chent the bargaInIng agent for "lawyers employed In theIr professIOnal capacIty" I agree wIth counsel for OPSEU that thIS provIsIOn could not possibly be Interpreted as precludIng the return of the dIsputed work to PSW's who would not be employed as lawyers The Interest of ALOC and ItS members In the outcome of thIS case IS analogous to the stake of the tlurd-party contractor and ItS employees In Avenor TheIr financial Interests were placed In Jeopardy by an arbItratIOn over contractIng out, but they were denIed standIng The foregoIng analysIs demonstrates the case law concernIng tlurd-party partIcIpatIOn at arbItratIOn does not support ALOC's apphcatIOn for standIng for Itself or ItS members I also note theIr economIC Interest In thIS proceedIng IS analogous to the financial stake of the UnIon In CRTC, an Interest whIch the Supreme Court held dId not confer an entItlement to notIce of a regulatory proceedIng For these reasons, ALOC's apphcatIOns for standIng are denIed. 21 Issued at Toronto thIS 6th day of January 2003 ~ ;/ .!~ - ,I RIchard Brown VIce-Chair