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HomeMy WebLinkAbout1991-2109.Policy.92-06-24 - ~I' '; f (_ ONTARIO EMPLOYES DELA COURONNE CROWN eMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITe 2100 TORONTO, ONTARIO. M5G lZ8 TEtEPHONEITELE:PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2 rOO, TORONTO (ONTARIO) M5G lZ8 FACSIMILE TELECOPIE (416) 326-1396 2109/91 IN THB HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SBTTLEHBNT BOARD BETWEEN OPSEU (Union Policy Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: J. Samuels Vice-Chairperson P. Klym Member 0 Clark Member - FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE c. Slater EMPLOYER Senior counsel Legal Services Branch Management Board of Cabinet BEARING April 7, 1992 .\- 2 ~ In June 1991, the Ministry engaged the servIces of Ms. Cmdy Lucas in the Systems Urnt of Its Thunder Bay office. There was no postmg and the UnIOn grIeves that the Employer violated Article 4 of the collectIve - agreement by failmg to post the positIon filled by Ms. Lucas At the outset of our heanng, the Employer raIsed a prelImmary ObjectIon which wIll be the sole subject of tlus award. It was argued that Ms Lucas was not a member of the bargaming unIt and that the place she filled was not withm the bargaming unit and that tins Board ought to leave the determmatlon of these issues to the Public ServIce Labour RelatIOns Tnbunal. The legIslatIon and junsprndence concerning our junsdlctlon here IS not entirely WIthout confusion. The Crown Employees Collectlve Bargainzng Act establishes both the GrIevance Settlement Board and the Public Service Labour RelatIOns Tnbunal. Section 19(1) of the Act provIdes that thIS Board is to determme any - dnferences between the parties to the collectIve agreement concemmg the "mterpretatlon, applIcatIon, admmistratlon or alleged contraventIon of the agreement, mcludmg any question as to whether a matter IS arbitrable" In thIs case, the UnIon alleges a violatIon of the collecttve agreement, whIch suggests that tins IS a case within our junsdiction pursuant to section 19(1) And, if the partIes have a dIfference concernIng the arbItrablbty of the matter before tIus ..aoard, thIS issue too seems to be wlthm OUf junsdictlOU, because section 19(1) says that we may determine "any questIon as to whether a matter IS arbItrable" However, section 40(1) of the Act provIdes that "If, . dunng the penod of operation of a collective agreement, a questIon anses as to whether a person IS an employee, the question may be referred to the Tribunal and Its decIslOn thereon IS final and bmdIng for all purposes" ...;.i (, I 3 Then sectIOn 39 provides that "The Tribunal has exclUSIve JunsdIctIon to exerCIse the powers conferred upon It by this Act and to determme all questions of fact or law that arise In any matter before it, and, except as otherwIse prOVIded m this Act, the action or decisIOn of the Tribunal - ~ -thereon IS final and bindmg for all purposes " These prOVISIons suggest that It is the Tribunal, and the Tribunal alone, WhICh ought to determme any questIon concernmg the status of an employee. So the Act does not speak clearly concernmg the JunsdlctIOn of the Grievance Settlement Board in this case. And the Junsprudence IS not much clearer In OntarlO (Attorney-General) v Ontario Public Servlce Employees Umon et a1 (1986), 14 OAe 233 (DiVISIonal Court) {known generally at the GrIevance Settlement Board as The Queen In Rlght of OntarlO v OntarlO Public Servlce Employees Union (Canmng), and referred to hereafter as simply Cannlng}, the Court saId very clearly that "An unresolved dlspu~e WIth respect to the status of a partIcular employee IS determmed by the Labour RelatIons Tribunal establIshed under the Act. - Status IS separate and apart from claSSIficatIon. The Board has JurisdIctlOn to conSIder Job claSSIficatIon but not status." (at page 234) In Lasani, 147/84 (DelIsle), the Board concludes at the very outset that a matter of status ought to be reserved for the TrIbunal. The gnevance mvolved a clalffi to a positIon whIch the Employer argued was a managenal one At page 1, the board saId. - We deCIded that whIle one could argue that we mIght have the authonty to deCIde thIS Issue, see C./.L , [1972], 3 OR 63 (CA), such a matter should be reserved for the Labour RelatIOns Tribunal. The Board relIed on the DiVISIOnal Court's deciSIOn III Canmng In the C.I.L (Canadian Industries Limued) case, referred to by the Board, The 1 ~. I 4 1 Court of Appeal concluded that a board of arbItratIon had the junsdictlon to deal with an issue whether persons were employees, though thIS was an Issue which was also WIthin the jurisdIction of the OntarIo Labour Relations Board. - And a slffiilar clear positIon concerning the Grievance Settlement Board's junsdIctIon IS taken by this Board in O'Breza, 1101/88 (Fi$her), when the Board deCIded that It was not necessary for it to determine whether a particular employee was withm a group excluded from the bargaming unit, and commented that "a determmatlon of thIS issue would, m effect, be an mfnngement on the exclusive authority of the Tribunal to detennme whether or not someone IS in the bargaining umt" (at page 6) The issue becomes clouded WIth the Board's deCISIon In Union, 1257/86 .(Barrett), whereIn the Board deCIded that It had concurrent JunsdIctIOn with the Tribunal to determine an issue of status "If It anses WIthin the framework of a gnevance properly before It", but deCIded that the case before It related solely to status and therefore ought to. be referred to the Tribunal (at page 7) - ThIS approach was camed even further by the Board m Coones, 231 J./90 (Stewart), where the Board concluded that It had JunsdictlOD to detennme the Issue of status m the context of the gnevance before It (and status was not the only Issue m the case), but, nonetheless, referred the matter to the Tribunal for a determination of the issue of status because thIS was the Board's "consistent approach" (at pages 9 and 10). In our VIew, It is difficult to understand the Board's conclusion in Union and Coones that the Gnevance Settlement Board has concurrent jUnSdlctlOn to determme an issue of status, m face of the very clear statement by the Divlslon~ Court m the Canning case that the Board does not have this jUnSdlction. In Coones, the Board side~stepped Canning with the followmg argument (at pages 8 to 9-note that In Coones, the Cannzng .;. rl 5 decIsIOn was cited incorrectly as bemg at [1986] 14 OAC 223, rather than (1986), 14 OAe 233) I I The particular Issue of the JurisdIction of the I Tribunal in relation to the JurisdIction of the I Grievance Settlement Board to determine an Issue of status as It anses ill this case was not directly before the DivIsional court for determinatlOn m the Canning case.. The Canadian Industries Lzmzted decIsion was not addressed in Canning We do not . the comments of the VIew Court. dealIng WIth the detenninatIon of the issue of status, as detemnnatIve of the Issue of junsdlctlOn to deal with issues of status an sing under the Crown Employees Collective Bargazning Act as the Issue anses before us ill thIS mstance But, in our view, the DIviSIOnal Court In Canning was clear and unequIvocal. If the Court was wrong, it is up to the Court of Appeal to set the matter straIght. And the panels of tlus Board which heard O'Breza and ..... I Lasani had no doubt about the authonty of the statement of the DivISional I Court in Canning Whatever the dIfference of opInion among panels of thIS Board concernIng the authority of the DIviSIOnal Court's statement m Canmng, It seems clear that there has been an entirely consIstent practIce of thIS Board to refer Issues of status to the Tribunal-either because this Board has no junsdictlon to determme such issues (which IS the pOSItIOn we prefer, m light of the DIvIsIOnal Court's crystal clear deCIsion In Canning ), or because It IS appropnate to leave such matters to the Tribunal, even though the Board has concurrent junsdIctlon over such issues With respect to thiS latter pOSItion, the panels of the Board which prefer thIS position have~ m effect, made the Tribunal the exclUSIve deciSion-maker In Issues of status, by deferring always to the Tribunal on such matters . '- 6 .. In hIS argument, counsel for the Employer In tlus case accepted that the Gne'Vance Settlement Board had concurrent JurisdIctIon to determine issues of status, but he urged us to decline to exerCIse our JunsdICtlOn. If we thought that tlllS Board had concurrent JunsdictIOn, we would exerCIse it, rather than wastmg the partIes' time and the publIc purse by referring the matter elsewhere However, we have concluded that we ought to follow the Divisional Court's statement in Canmng Our result will be the same as m all previous sImIlar cases of thIS Board. Reluctantly, we fmd that this matter must be referred InItially to I the Tnbunal. The ultImate deCIsion in this case depends on the I charactenzation of the positron which is filled by Ms. Lucas. Is it wlthm I the bargaIning unIt? In our VIew, thIS 18 a questIon wluch falls exclUSIvely I wlthm the jurisdictIon of the Tribunal. Section 39 says that the Tribunal I has thIS exclusive JurisdictIOn, and the DIVIsional Court in Canning has confirmed thiS, and the DiVISIOnal Court's statement has been accepted by thIS Board m Lasani and 0 'Breza - If the pOSItion of Ms. Lucas is found by the Tribunal to be within the bargaining unit, then the matter will be returned to us and we wIll determIne whether the Employer violated the collectIve agreement, and what ought to be the result if there was a VIolatIOn of the collectIve agreement. J (4 7 We have already heard all the evidence necessary to determme the matter on its merits H the case is returned to us, we will establIsh hme limIts for wntten argument from counsel~ and wIll proceed to a final determination of the grievance. Done at London, Onlano, this 24th day of June , 1992 ~ "I Dissent" (dissent attached) P. Klym, UnIOn Member - ^~ ~~ ~ D Clark, Employer Member , J GSB File 2109/91 - Union Grievance DISSENT OF BOARD MEMBER P. KLYM I dissent from the decision of the Chair regarding the preliminary issue before us for two reasons. 1. I disagree that the issue of status is solely within the jurisdiction of the Tribunal and outside the jurisdiction of the GSB. 2. The issue in the grievance is whether there is a violation of Articles 4 and 6 of the Collective Agreement. The status of the person performing this work presently will not resolve the question before us. I. Jurisdiction of the GSB re Status The Chair's decision regarding this matter seems to be influenced by the opinion th~t the Divisional Court in the Canning case clearly decided the issue that status is an exclusive issue for the Tribunal. The direct issue before the Divisional Court in Canning was solely whether the Board could classify employees into a classification system designed for management. There was no dispute regarding the status of the persons involved and the ~ question of jurisdiction to determine status was not argued before the Court In my opinion, the Divisional Court's comments regarding status should not be treated as clear and determinative. They should be considered more in the area of obiter. Contrasted to the Canning decision is the Court of Appeal decision in the C.I.L. case. In this case, the Court of Appeal had before it the direct issue of whether an arbitration board under the Labour Relations Act had jurisdiction to determine whether the persons affected were employees and covered by the Collective Agreement. The Court of Appeal ruled that the word "may" was permissive and not mandatory and that the Ontario Labour Relations Board did not have exclusive jurisdiction to determine the status of an employee. The exclusive jurisdiction of the OLRB only came into effect if either party chose to refer the matter to the OLRB rather than to a board of arbitration. ,~ ~ - 2 - This is precisely the same issue before us and the same wording in the relevant CECBA sections. In analysing these court decisions, I find the C.I L case a preferable one to follow. Its comments clearly are - not obiter. Granted, it does not interpret directly the provisions of CECB~ but the wording in CECBA and the OLRA is identical In addition, this Court of Appeal decision was overruling a Divisional Court decision that had the same reasoning regarding jurisdiction to determine status as the comments in Canning The interpretation of the Cann~ng and the C.I.L. cases and their applicability to GSB jurisdiction is not something that has only arisen in our case. It is not as though Canning was a new discovery. It has been considered and ana lysed thoroughly by other panels. where it has been raised - e.g : Ministry of Trade & Technology & OPSEU (Union Grievance) 1257/86, Barrett and OLBEU (Coones) 2311/96, Stewart. Both these panels found they had concurrent jurisdiction with the Tribunal regarding status and the Canning case did not prevent this. ~ The effect of the Canning decision has been interpreted and ruled upon by these previous panels of the GSB I note that the panel in the O'Breza case did not have the Canning case nor the C.I.L. case before it and did not interpret their effect. I submit that the previous panels' interpretation of the effect of Canning is the correct one. However, using the test in Blake that was enumerated by Chairman O. Shime, even if they are manifestly wrong, we should follow this interpretation unless there are exceptional circumstances in our case - and no such circumstances exist. II. The Issue in the Grievance The grievance claims essentially that there was a normal vacancy for a permanent position and that it should have been posted under Article 4 The grievance does not say Ms. Lucas belongs in the bargaining unit. A ~erson could be outside the I bargaiRing unit for various reasons - management, Go Temp., etc I I I " - 3 - t Yet the work they are performing could be such that it should be considered a vacancy for a permanent position in the bargaining unit. - This is an issue that has to be determined regardless of the status of the person(s) presently doing the work. This is precisely the issue that was before the Board in Ministry of Transportation & Communications case 519/84 (Palmer) . In that case, there was no question that the persons doing the work in question were management and excluded from the bargaining unit In that case, the panel decided that the work was not training and development for managers but properly fell under the Collective Agreement. The determination of the employee status of Ms Lucas may assist us in our deliberations but in my opinion it will not resolve the issue in the grievance. There is nothing to be gained from referring the matter to the Tribunal - only a loss of time and a large waste of resourceso In conClusion, on the preliminary matter, I would rule that the GSB has concurrent jurisdiction to determine the status ~ of Ms Lucas (if the matter is relevant to the grievance before us) and we should proceed to rule on the merits. ~.1:Lr-- Peter Klym r\ 't, ,j, i , I Supplementary Comments by I , . J W Samuels, Vice-ChaIrman e,,,,,, m Umon2109/91 I have had the pleasure of readmg and considenng the dIssent by my colleague Klym, and I tlnnk It would be useful If I added several remarks to round out the prehmmary award m thIS matter Firstly, the DIVIsional Court ill Canmng rendered ItS deciSIon fourteen years after the Appeal Court deciSIOn in CIL. It IS hIghly unlikely that the Court ill Canning dId not take the elL deCIsion into account. Able and expenenced counsel represented the partIes ill Canmng and I prefer to thInk that the arguments would have canvassed such an obviously relevant case as the elL deciSIOn. But the fact of the matter IS that, in spite of thIS prevIOUS JUflsprudence, the DIVIsional Court m Canmng concluded that the Gnevance Settlement Board did not have Jurisdiction to determme status And I thmk there IS good reason for thIS As I point out In the award, though section ~ 40(1) of the Crown Employees Collectzve Bargaining Act says that questIons of status may be referred to the Tribunal (suggestmg that there IS somewhere else to whIch these questIons can also be referred), sectIon 39 of the Act says that the Tnbunal has exclUSIve Junsillction to exerCIse the powers conferred I upon It by the Act. There IS no "may" in sectIon 39-the Tnbunal has exclUSIve Junsdlctlon over these matters. In my view, the DIviSIOnal Court ill C annzng had sectIon 39 In mInd when it saId that the Gnevance Settlement Board does not have JunsdIctlon in matters of status. Secondly, I suggest that Mr Klym is not gIVing sufficient weIght to the comments by the Court in Canning While he charactenzes the questIon before the Court correctly, he ignores the place of the Court's comment concerning the JurisdICtion of the OSB I suggest that" a close readmg of the Court's entire deCISIon shows that paragraph 5 of the deCISIOn IS the heart of - ! I ~ 1 { the Court's reasoning From paragraph 5, all else flows InevItably Paragraph 5 reads ill full. In the Ontario Publrc ServIce, there is a distinctIOn between bargaIning unIt employees and non. bargainIng unIt employees The distinctiOn IS sometImes referred to as a questIon of status An unresolved dIspute with respect to the status of a partIcular employee is determined by the Labour Relations TnbunaI established under the Act. Status is separate and apart from classIfication. The board has JurisdIctIon to consider Job classIfication but not status. ThIS was not simply obJter dIcta. ThIS was the Court's clear VIew of the relatIOnshIp between the Tribunal and the GSB, and thIS VIew was the underIymg basis for the result reached by the Court. Finally, If Blake IS to be consIdered as Mr Klym suggests, then I pomt out that, whatever the earher panels have said about concurrent JunsdictlOn ill these cases, no panel has ever actually exercIsed thIS Jurisdiction. TheIr comments about the possibilIty of concurrent Junsdlctron have always been ~ followed by c;leferring to the Tribunal-which is precIsely what we are domg m the award. Mr Klym's dIssent would have us domg somethIng whIch has never been done before-whIch IS not what Blake mtended.