HomeMy WebLinkAbout2092-06-U - Schacherl 07-01-12
ONTARIO LABOUR RELATIONS BOARD
2092-06-lJ Suzette Schacherl Applicant v. Ontario Public Service Employees Union
Responding Party and Ministry of the Attorney General, Intervenor.
BEFORE: Susan Serena, Vicc-Chair,
nECISION OF THE BOARD; January 12, 2007
l. This is an application under section 96 of the Labour Relations Act, J 995, S.O 1995,
c.1, as amended (the "Act") in which the applicant alleges that the responding party, Ontario
Public Service Employees Union ("OPSEU") violated section 74 of the Act.
2. The applicant is employed by the Ministry of the Attorney-General (the "employer")
and is a member of a bargaining unit represented by the OPSELJ.
3. The applicant alleges that the union breached section 74 of the Act when it negotiated
a collective agreement that contains provisions that are contrary to the Employment 5,'tandards Act
("ESA"). More particularly, the applicant complains that the collective agreement that was
negotiated in 2005 contravenes section 11 (Part V - Payment of Wages) and section 22 (Pari VIII
Overtime Pay) of the ESA. The applicant seeks the following remedy:
The Employment Standards Act to be applied in the workplace:
Overtime paid f()r hours in excess of 44 per week
Regular- time hours to be paid for in the week they arc worked,
as specified under subsection I] (1) of the Employment Standards Act.
4. Both OPSEU and the employer submit that the application should be dismissed
without a hearing or consultation on the basis that it does not disclose a prima facie violation of
section 74 of the Act because the provisions of the ESA that the applicant relies upon do not
apply to Crown employees. Further, these parties allege that the application is premature because
the applicant has not utilized the dispute resolution process set out in the collective agreement to
resolve her complaint.
5. Section 74 of the Act provides as follows:
74. A trade union or council of trade unions, so long as it continues to be
entitled to represent employees in a bargaining unit, shall not act in a
manner that is arbitrary, discriminatory or in bad faith in the representation
of any of the employees in the unit, whether or not members of the trade
union or of any constituent union of the council of trade unions, as the case
may be
6.. Rule 39. 1 of the Board's Rules of Procedure provides as follows:
39.1. Where the Board considers that an application does not make out a
case for the orders or remedies requested, even if all of the filcts stated in the
- 2 .
application are assumed to be tme, the Board may dismiss the application
without a hearing or consultation. In its decision, the Board will set out its
reasons.
7. Subsection 3(4) of the ESA provides as follows
(4) Only the following provisions of this Act apply with respect to
an employee and his or her employer if the employer is the Crown, a Crown
agency or an authority, board, commission or corporation all of whose
members are appointed by the Crown:
Part IV (Continuity of Employment).
2. Section 14
3. Part XII (Equal Pay for Equal Work).
4. Part XIII (Benefit Plans).
5. Part XIV (Leaves of Absence).
6. Part XV (Termination and Severance of Employment).
7. Part XVI (Lie Detectors)
8. Part XVIII (Reprisal), except for subclause 74 (1) (a) (vii) and
cIause 74 (1) (b).
8. There is no dispute that the applicant is an employee of the Crown. That being the
case, by virtue of subsection 3(4) of the ESA the applicant's employment is not subject to either
Part V (Payment of Wages) or Part VIII (Overtime Pay) of the ESA. Accordingly, there no basis
upon which the Board could conclude that the collective agreement contravenes section 11 ancI/or
section 22 of the ESA.
9. Furthermore, because sections II and 22 do not apply to the applicant's employment
by the Ministry of the Attorney General, the Board does not have the jurisdiction to grant the
remedies the applicant is seeking, even if all of the facts stated in the application are assumed to
be true and provable.
10. Accordingly, pursuant to Rule 39.1 of the Board's Rules of Procedure, this application
is dismissed because the applicant has not raised a prima facie violation of the Act.
"Susan Serena"
for the Board