HomeMy WebLinkAboutUnion 18-07-23IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
OPSEU PENSION TRUST (the Employer)
POLICY GRIEVANCE RE: PERSONAL TRADING POLICY
Appearing for the Union: Tim Hannigan, Ryder Wright Blair and Holmes LLP
Appearing for the Employer: Michael G. Sherrard, Sherrard Kuzz LLP
Hearing Date: July 19, 2018
AWARD:
This decision deals with a preliminary objection by the Employer asserting that I do not
have jurisdiction to deal with the matters raised in the grievance. The facts giving rise to the
dispute which is the subject of grievance are set out below.
The Employer operates a pension benefit trust fund which manages and administers the
pension monies for all of the Union ’s members in all of its bargaining units in the Province of
Ontario. The Employer is required to comply with the requirements of the Ontario Securities Act
and the Pension Benefits Act. In furtherance of those requirements, the Employer has developed
a policy entitled “Personal Trading Policy” applicable to all employees. The stated goals of the
policy are to ensure that the Employer conducts its business “to the highest ethical standards”
and in a way “that protects against insider trading and any other legal liability that could result.”
In furtherance of these goals the policy generally requires all employees to disclose all
financial holdings and to pre-clear trade of any securities covered by the policy, with the
Employer to ensure that there is no risk of violation of insider trading rules. Employees who fail
to comply with the policy may be subject to discipline, although until now, employees have been
in compliance with the policy and there has been no discipline for breach of the policy.
The grievance alleges that the policy is arbitrary, unreasonable, in violation of Article 3 of
the collective agreement (the managements’ rights clause) as well as any other relevant provision
of the collective agreement, statute or past practice. By way of remedy the grievance seeks an
order that the Employer rescind the policy and replace it with a policy that applies only to those
employees who have access to sensitive non-public investment information.
The Employer’s objection is that the dispute over the policy is not a dispute arising from
the collective agreement, but is rather a dispute over the Employer’s administration of its
obligations arising from the Securities Act and the Pension Benefits Act. As such the dispute does
not raise an arbitrable matter and I am therefore without jurisdiction to consider the matter. The
Union asserts that any rule or policy unilaterally implemented by the Employer must meet a
standard of reasonableness under the collective agreement, particularly where discipline may
result from its breach.
The relevant portion of the managements’ rights provision of the collective agreement is
as follows:
3.01 The parties recognize that it is the exclusive right of the Employer to direct
it operations and its working forces, and without limiting the foregoing, it
is the Employer’s right to:
a) maintain order, discipline and efficiency and from time to time
make rules and regulations subject to the requirement that rules
which may be the basis of discipline must be reasonable.
According to counsel for the Employer my jurisdiction is restricted to determining matters
arising under the collective agreement. Counsel points to s. 48(1) of the Labour Relations Act,
1995, which requires every collective agreement to provide for arbitration of “all differences …
arising from the interpretation, application, administration or alleged violation of the
agreement”. In addition, counsel notes that Article 8.06.03 of the collective agreement states
that an arbitrator “shall have no jurisdiction to alter, change amend or enlarge any provision of
the Collective agreement”. Counsel submits that the policy at issue is not a matter arising under
the collective agreement but rather arises out of its efforts to comply with another regulatory
framework.
Counsel relied on a number of authorities in support of his submission including QBD
Cooling Systems, [1996] CarswellOnt 5760 (Newman); Ontario Ministry of Finance, [2004]
CarswellOnt 3674 (Gray); and Community Care Access Centre Niagara, [2000] CarswellOnt 9375
(Whitaker). In QBD, the arbitrator declined to take jurisdiction to consider the Employer ’s
unilateral decision to install video monitoring equipment. In reaching her decision the arbitrator
specifically noted at paragraph 29 that there was no provision in the collective agreement
requiring that the exercise of management’s rights be reasonable. In addition, she noted that
there was no evidence that the use of the cameras had resulted in discipline.
In Ministry of Finance, there was a government wide policy providing that the Employer
had the discretion to reimburse employees for fees to belong to professional associations where
membership in these associations was deemed by the Employer to be beneficial to the Employer.
The arbitrator refused to take jurisdiction to determine a grievanc e claiming reimbursement for
professional fees paid by certain employees on the ground that the matter was not covered by
the collective agreement. In CCAC Niagara, the Employer implemented a policy what it would
only tender commercial contracts to entities who would agree that they would also not employ
persons employed by the Employer. Again, the arbitrator determined that the policy was a matter
regulating its commercial relations with outside contractors and not a matter arising from the
collective agreement.
It is the Union’s position that the matter at hand clearly arises from the collective
agreement between the parties. First, counsel submits that the policy must meet the test for
“reasonableness” for all rules and regulations as expressly set out in the collective agreement. In
addition, counsel asserts that unlike the cases relied on by the Employer, breach of the rule in
this case results in disciplinary consequences. Counsel submits that where the breach of a rule
imposed by the Employer may result in discipline, the reasonableness of the rule is clearly a
matter which falls within an arbitrator’s jurisdiction to determine. For that proposition counsel
relied on a number of authorities, including KVP Co. Ltd., [1965] CarswellOnt 618 (Wren,
Robinson, Hicks); Rouge Valley Health System, [2015] CarswellOnt 16480 (Stout) McKellar
General Hospital, [1994] CarswellOnt 1336 (Harris, Kovacs, Brownlee); and Municipality of
Metropolitan Toronto, [1990] CarswellOnt 1088 (C.A.)
Having regard to the submission of the parties I am of the view that this dispute which is
the subject of the grievance before me does indeed arise from the collective agreement and that
I do indeed have jurisdiction to determine the reasonableness of the policy and of its application.
I am persuaded that that the collective agreement itself does provide that any rules the breach
of which may result in discipline, must meet a standard of reasonableness because of the express
requirement set out in Article 3.01 (a). That provision clearly states that any rules that may be
the basis of discipline must be reasonable. In this case the policy provides that if employees do
not comply with the policy they may be disciplined. As a result, the policy must adhere to the
requirements of Article 3.01 (a) and any dispute over the reasonableness of the policy and/or its
application is clearly arbitrable. In my view the authorities relied on by the Union clearly support
this proposition whereas the authorities relied on by the Employer are factually different in that
those cases do not deal with policies capable of being breached by employees. In any event, to
the extent there is any inconsistency in the authorities, I prefer the authorities relied on by the
Union. In that regard I agree with the comments of the Board in McKellar General Hospital at
paragraph 51 that where the breach of a rule may result in discipline, “it would be most unfair
and disruptive to the labour relations of these parties to only permit evaluation of the rule after
discipline has been imposed”.
For all of these reasons it is my conclusion that the grievance does raise a matter which
arises from the collective agreement and I do have jurisdiction therefore to consider and
determine the grievance. The matter will therefore be scheduled for hearing on the merits.
Dated at Toronto, this 23rd day of July, 2018.
______________________
Norm Jesin