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HomeMy WebLinkAbout1980-0481.Abbott.81-09-14 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE: 416/598- 0688 481/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ms. Dianne Abbott Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: Mr. J.F.W. Weatherill Vice Chairman Mr. I. Thomson Member Ms. H. J. Laing Member For the Grievor: For the Employer: Hearing: Mr. A. Milliken Heisev, Counsel Blake, Cassels & Graydon Mr. R. J. Drmaj, Counsel Hicks, Morley, Hamilton, Stewart & Stone July 30th, 1981 - 2 - DECISION This is an application purporting to be made under Section 11 (3) of The Crown Employees Collective Bargaining Act, 1972. The applicant requests the Board to vary its decision in this matter dated May 29, 1981, and to substitute the decision of the dissenting member for that of the majority.of the Board. A preliminary question arises as to the jurisdiction of this Board to amend, alter or vary a decision - or in any event a final decision - which it has made in a matter before it. In the instant case the grievance of Mr. Abbott was heard by a panel of the Board Oifferently constituted from that now sitting), on January 26, 1981. The decision of the majority of the Board, dismissing the grievance, was issued on May 29, 1981. Reasons were issued in support of the majority and minority opinions. There is no provision in The Crown Employees Collective Bargaining Act specifically empowering the Grievance Settlement Board, as such, to review, or to amend, alter or vary any final decision which it has issued. It seems clear that the decision issued in this matter on May 29, 1981, was a final decision. It is, accordingly, the employer's position, with respect to the present application, that the Board is functus officio, and that it has no jurisdiction to entertain the application. - 3 - Section 11 of The Crown Employees Collective Bargaining Act is as follows: " 11,—(l) The board shall examine into and decide on matters that are in dispute within the scope of collective bargaining under this Act. 1972, c. 67, s. 11(1). (2) In the conduct of proceedings before it and in rendering a decision in respect of a matter in dispute, the board shall consider any factor that to it appears to be relevant to the matter in dispute including, (a)the needs of the Crown and its agencies for qualified employees; (b)the conditions of employment in similar occupations outside the public service, including such geographic, industrial or other variations as the board may consider relevant; (c)the desirability to maintain appropriate relationships in the conditions of employment as between classifi- cations of employees; and (d)the need to establish terms and conditions of em- ployment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered. 1972, c. 67,3. 11(2); 1974, c. 135,s. 7. (3) The board may, upon application by either party to a decision within ten days after the release of the decision, subject to affording the parties the opportunity to make representations thereupon to the board, amend, alter or vary the decision where it is shown to the satisfaction of the boa-rd that it has failed to deal with any matter in dispute referred to it or that an error is apparent on the face of the decision. (4) The Arbitrations Act and The Statutory Powers Pro- cedure Act, 1971 do not apply to arbitrations under this Act. 1972, c. 67, s. 11(3, 4). ii - 4 - There is, plainly, a certain power of review conferred on a "board" by this provision. The question is whether or not the Grievance Settlement Board is a "board" within the meaning of Section 11 (3). In our view it is not. Sections 9 to 18a of the Act appear under the general heading "Arbitration". The Grievance Settlement Board is established by Section I8a (1), and by Section 18 (1), certain matters may be referred to it "for arbitration". It would, for some purposes, be appropriate to describe the Grievance Settlement Board as a "board of arbitration" or "arbitration board", such phrases - properly understood - being generally descriptive of the Board's essential function, which may be said to be that of hearing and deciding grievances or differences which arise between the parties (bargaining agent and employer), relating to the interpretation, application, administration or alleged contravention of a Collective Agreement. Section 18 (1) of the Act is as follows: " IS.—(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be refer- red for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement." 5 The arbitrations which the Grievance Settlement Board conduct involve disputes commonly known as "rights disputes". These may be contrasted with the disputes dealt with by a "board of arbitration" established under Section 9 of the Act. Such a board, appointed by or upon notice to the Ontario Public Service Labour Relations Tribunal may be said to have as its essential function the determination of an "interest dispute". As a result of its decision, a Collective Agreement is established which the parties may be required to execute. Such a board decides "all matters in dispute coming within the scope of collective bargaining". The nature of its task is quite different from that of the Grievance Settlement Board, and the "arbitration" which it conducts is jurisprudentially quite distinct from those conducted by this Board. Where, in Section 11, reference is made to "the board", it is clear that reference is made to any board of arbitration established under Section 9. There is no permanently-established tribunal comparable to the Grievance Settlement Board or the Ontario Public Service Labour Relations Tribunal, established under other provisions of the Act. By Section 1 (1) (d) of the Act, "board" means a board of arbitration established under the Act. It is only if the two - 6 - distinct uses of the term "arbitration" are confused that the Grievance Settlement Board could be taken to come within the scope of that definition. Sections 10 (12) and 10 (13) of the Act set out certain powers which may be exercised by "a board". Section 18 (2)_ provides that the Grievance Settlement Board "has the same powers as a board of arbitration under Subsection 12 and 13 of Section 10". In other respects, quite distinct provisions are made for the Board, and for a board of arbitration (and, in later provisions, for the Tribunal), in respect of jurisdiction, powers and procedures. From all of this we conclude that the Grievance Settlement Board is not "the board" referred to in Section 11 of the Act. There is, as we read The Crown Employees Collective Bargaining Act, no statutory power in the Grievance Settlement Board to rehear a matter already decided, or to amend, alter or vary a final decision which the Board has issued. In addition, it is our view that the provisions in Section 18 (a) (8) of the Act that the Grievance Settlement Board shall determine its own practice and procedure cannot properly read as conferring a power of review such as that sought to be invoked - 7 - here. Such a jurisdiction (expressly conferred on boards of arbitration by Section 11 (3) of the Act), is not created as a matter of "practice and procedure". Rather, practice and procedure are to be developed in aid of jurisdiction already conferred by the statute. Finally, we would note that there is not, in the instant case, any basis on which it could be said that this Board has any continuing or "equitable" jurisdiction which, as is suggested in the case of Grillas v. Minister of Manpower and Immigration (1971), 23 D.L.R. (3d) 1 (S.C.C.), might give us jurisdiction to reopen the hearing. In the instant case, the thrust of the application is that the Board's decision was wrong, and we are asked to come to a different conclusion. In our view, we have no jurisdiction to entertain such an application. The decision of the Board in this matter on May 29, 1981 was, by virtue of Section 18 (1) of the Act, final and binding. - 8 - For the foregoing reasons, the application is dismissed. DATED AT TORONTO THIS 14th DAY OF SEPTEMBER, 1981. ( . F. W. Weatherill, Chairman H. J. Laing, Member