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HomeMy WebLinkAbout2008-0647.Union.08-12-05 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0647 UNION#2008-0340-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFOREVice-Chair Bram Herlich FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Omar Shahab Counsel Ministry of Government Services HEARING November 25, 2008. 2 Decision [1]The union has filed a grievance asserting that the position of Administrative Coordinator located in the Office of the ADM in the Tax Revenue Division of the Ministry of Revenue located in Oshawa is one which ought properly to be included in its bargaining unit. The position was filled in April 2007 and is currently being treated by the employer as a position which is excluded from the bargaining unit. The instant grievance was filed in February 2008. In June 2008 the parties, following their normal scheduling practices, agreed to place the matter before me, in my capacity as Vice-Chair of the Grievance Settlement Board (?Board?), for mediation. A hearing for that purpose was scheduled for November 24, 2008. On November 12, 2008, the employer filed an application with the Ontario Labour Relations Board (?OLRB?) pursuant to Section 114(2) of the Labour Relations Act (?LRA?) seeking a declaration that the person filling the position in question is not an employee within the meaning of the Crown Employees Collective Bargaining Act (?CECBA?). When, as previously scheduled, the parties appeared before me some two weeks later, the employer moved that I defer the instant proceedings pending the determination of the OLRB. The union opposed the motion. [2]At the outset, I note that the parties agreed that there is a substantial identity in the issue either this Board or the OLRB would have to determine in this matter, at least with respect to what, for ease of description, may be referred to as the ?employee status? issue. While there might be differences in the modes and parameters of the determinations and the fashion in which the issue surfaces, the parties were in agreement that, given the employer?s position, the issue of employee status is one which would need to be determined in either forum. To be clear, the employer did not assert that this Board was without jurisdiction to make that determination, but rather, that, in the circumstances, the Board ought to defer to the OLRB. And both parties agreed that this Board has the discretion to defer to the OLRB. The issue, then, was whether and how this Board ought to exercise that discretion. [3]The employer takes the position that the person in question is not an employee within the meaning of CECBA. It relies on section 1.1(3)(9) of CECBA which provides: 3 This Act does not apply with respect to the following: ? 9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations. [4]As already indicated, the parties agree that the employee status issue placed before the OLRB by the employer is, at least effectively, the first issue this Board would have to determine in dealing with the grievance. Of course, the OLRB?s inquiry would be limited to that status issue and the parties appeared to agree that if the OLRB found in favour of the employer on that issue, that would, effectively, determine the grievance. However, the employer was not prepared to concede that if the individual in question is found to be an employee, that the position in question is necessarily included in the union?s bargaining unit. Thus, if the individual is an employee, a further issue would have to be dealt with in the context of the grievance and it would be this Board, not the OLRB, that would be charged with a final disposition of the remaining issue(s) in the grievance. [5]In support of its motion, the employer relied on a line of Board cases which, under predecessor versions of CECBA, have largely favoured the type of deferral sought by the employer in this case. The union raised some questions regarding the integrity of that line of cases. However, its main argument was that these cases are now largely of little more than archival interest given the statutory changes which have followed them. The union points out that, since the current statutory framework has been in place, but a single decision of this Board, AMAPCEO v Management Board Secretariat, GSB No. 2003- 2754, August 23, 2004 (Brown) has addressed the issue and, in circumstances remarkably similar to the instant ones, has declined to exercise its discretion to grant the deferral the employer sought in that case as well. [6]The line of authority relied on by the employer begins with a decision of the Ontario Court of Appeal which did not arise under CECBA. In Re Canadian Industries Ltd. and International Union of District 50, Allied and Technical Workers of United States and Canada, Local 13328, [1972] 3 O.R. 63 the decision of a Board of Arbitration on an employee status issue was the subject of judicial review in which the applicant asserted 4 exclusive that the issue was within the jurisdiction of the OLRB (to which no application had been made in the case). While the Court of Appeal rejected that assertion, it did, in an obiterstatement opine that if an employee status issue is referred to the OLRB, the OLRB?s jurisdiction would thereby be rendered exclusive. [7]This last observation has undoubtedly contributed to the formation of some of the Board case law which followed. [8]One of the first decisions of this Board to address the issue is found in OPSEU (Union Grievance) v Ministry of Industry Trade and Technology, GSB File No. 1986-1257, August 26, 1987 (Barrett). Much like the instant case, the union had grieved the employer?s failure to treat certain positions as within the bargaining unit. And like the instant case, the employer asserted that the persons in the positions in question were not employees under CECBA because they were employed in a managerial or confidential capacity. At the time of that case, the Ontario Public Service Labour Relations Tribunal (?Tribunal?), created when CECBA was first promulgated in 1972, was still operational. At the risk of oversimplification, the Tribunal was charged with performing, under CECBA, functions which resembled and reflected those performed more broadly, under the LRA,by the OLRB. Among the many legislative mandates conferred on the Tribunal was the following (from CECBA as it read at the time, ?old CECBA?): 40(1) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes. [9]Old CECBA also provided in section 1(1): (f) "employee" means a Crown employee as defined in the Public Service Actbut does not include, ? (iii) a person employed in a managerial or confidential capacity 5 [10]No application had been made to the Tribunal. The employer asserted, however, that the employee status issue was within the exclusive domain of the Tribunal. The union, apparently cleaving to the obiter dicta of the Court of Appeal, conceded that if the issue had been referred to the Tribunal, it would then have exclusive jurisdiction, but that section 40 was not a mandatory directive and, in the circumstances, the Board could retain jurisdiction over the issue. [11]The Board found that it did have concurrent jurisdiction over the employee status issue. But it also concluded that the employee status issue was really the only issue in the case and that the disposition of the grievance rested entirely on that finding. The Board also concluded that, looking at CECBA as a whole, the framers of the legislation contemplated that questions of employee status would arise frequently and that a specialized Tribunal should be established to deal with that issue on an ongoing basis. In that context the Board opted to refer the matter to the Tribunal. [12]Although the case law was by no means voluminous, by 1988, in its second decision following the Barrett award, the Board felt compelled to state that ?[i]t is the practice of the Board to defer to the jurisdiction of the ? Tribunal conferred by Section 40(1) of [CECBA].? (see Union Grievance GSB File No. 1986-2086, December 5, 1988, (Draper)) [13]Indeed, although the volume of caselaw continued to be relatively modest ? a further four cases (OPSEU (O?Breza) v Ministry of Agriculture and Food, GSB No. 1988-1101, February 19, 1990 (Fisher); OLBEU (Coones) v Liquor Control Board of Ontario, GSB No. 1990-2311, November 25, 1991 (Stewart); OPSEU (Union Grievance) v Ministry of Natural Resources, GSB No. 1991-2109, June 24, 1992, (Samuels) and OPSEU (Chamaillard) and Ministry of Attorney General, GSB No. 1992-1290, September 21, 1993 (Kaplan)) were cited to me which were decided between 1988 and the major revisions to CECBA in 1993, it would not be inaccurate to suggest some elements of consistency, at least in the results. In all but one of those cases, the Board opted to defer to the Tribunal on the employee status issue. However, the legal foundation for that result is not necessarily entirely consistent in the cases. Some have seen it as a matter of jurisdiction ? asserting that the Board has none in respect of a status issue which can be 6 the subject of an application under Section 40 of old CECBA. Other cases have accepted that issues of status might give rise to a concurrent jurisdiction of the Board and the Tribunal and, in that context, simply addressed the issue of how and when to exercise the discretion to defer. The exceptional case (Chamaillard, supra), at least in terms of result, was also the last and most recent decision to address the issue prior to CECBA reform in 1993. The case involved the discharge of a grievor claimed by the employer to be an independent contractor. In declining to defer the matter to the Tribunal for an employee status determination, the Board observed (at page 15): In the instant case, we find that while the determination of status by the Tribunal might end the matter by precluding the necessity of reviewing the merits, it might not. The issue of status is arguably intertwined with the merits, and it is implicated to a much greater extent than in any of the other cases in which this issue has previously been addressed. A referral to the Tribunal in this case would constitute an unnecessary division of decision-making, and, assuming that the grievor was found to be an employee, result in considerable delay in the determination of her grievance and in that way defeat one of the important purposes of arbitration. [14]Whatever efforts might be made to reconcile all of these cases (and they are fairly, but not entirely, uniform, at least in result) it may well be that they are now of little more than academic interest. The legislative landscape has shifted dramatically and, to cite but one resulting consequence, the question of deferral to the Tribunal can no longer arise, as the Tribunal is now defunct. [15]The changes to labour relations in the public sector effected by CECBA reform in 1993 were substantial. Among the many resulting changes were the first time inclusion of the right to strike; an incorporation, subject to some important exceptions and modifications, of the LRA into CECBA; the elimination of the Tribunal; and changes to the composition and administration of, as well as the appointment process to, this Board. [16]Some of these legislative changes are significant for our current purposes. [17]First and most obvious is the elimination of the Tribunal. The old Act contained Section 40(1) which permitted the reference of employee status issues to the Tribunal (as well as Section 1(1)(f)(iii) cited earlier). Under the current scheme, there is no specific provision 7 relating to the referral of status disputes in the public sector (by which, for current purposes, I mean the labour relations sector subject to CECBA). Rather, by virtue of the incorporation of the LRA and its Section 114(2) into CECBA, parties in the public sector, like those in the private sector, have access to the OLRB for employee status determinations. [18]There do appear, however, to be some curious differences in the statutory bases for Section 114(2) determinations. Under that section, the OLRB has the authority to determine whether a person is an employee under the Act. Of course, what separates employees from non-employees in the public sector is not necessarily identical to the private sector. The typical status dispute under the LRA will involve the interpretation and application of section 1(3) of the LRA which provides: ?for the purposes of this Act, no person shall be deemed to be an employee, (a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or (b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. 1995, c. 1, Sched. A, s. 1 (3). [19]In addition, Section 3 of the LRA provides that that Act does not apply: (a) to a domestic employed in a private home; (b) to a person employed in hunting or trapping; (b.1) to an employee within the meaning of the Agricultural Employees Protection Act, 2002; (c) to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture; 8 (d) to a member of a police force within the meaning of the Police Services Act; (e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 41 (1) of that Act; (f) to a member of a teachers? bargaining unit established by Part X.1 of theEducation Act, except as provided by that Part, or to a supervisory officer, a principal or a vice-principal; (g) Repealed: 2006, c. 35, Sched. C, s. 57 (2). (h) to an employee of a college of applied arts and technology; (i) to a provincial judge; or (j) to a person employed as a labour mediator or labour conciliator. 1995, c. 1, Sched. A, s. 3; 1997, c. 4, s. 83; 1997, c. 31, s. 151; 2002, c. 16, s. 20; 2006, c. 35, Sched. C, s. 57 (2). [20]These latter exclusions do not necessarily go to questions of employee status as such ? indeed some of the listed excluded persons are explicitly described as employees. One might expect that employee status issues would be resolved largely through a consideration of the application of section 1(3). Section 3, on the other hand, sets out exclusions from the application of the Act. While issues of such application may undoubtedly arise in OLRB proceedings, there does not appear to be any specific application available (like section 114(2)) for a declaration of non-application of the Act. [21]The scheme is somewhat different under CECBA. The incorporation of the LRA into CECBA is subject to certain exceptions and modifications. Among those, the two LRA not sections just referred to (Sections 1(3) and 3) are incorporated into CECBA. And neither do the provisions of CECBA reflect a parallel structure. There is no CECBA section equivalent to section 1(3) (or to Section 1(1)(f)(iii) of old CECBA) which would provide any statutory context for the definition of ?employee?. And neither is there any CECBA provision according importance (if not primacy) to the ?opinion of the Board [i.e. OLRB]? in the fashion that Section 1(3)(b) does under the LRA. Section 1.1(3) of CECBA, however, catalogues a list of some 15 classes of persons to whom the Act does not apply, namely: 9 1. Persons to whom the Ontario Provincial Police Collective Bargaining Act, 2006 applies. 2. Repealed: 2006, c. 35, Sched. C, s. 23 (4). 3. Architects employed in their professional capacity. 4. Dentists employed in their professional capacity. 5. Lawyers employed in their professional capacity. 6. Physicians employed in their professional capacity. 7. Provincial judges. 8. Persons employed as a labour mediator or labour conciliator. 9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations. 10. Persons employed in a minister?s office in a position confidential to a minister of the Crown. 11. Persons employed in the Office of the Premier or in Cabinet Office. 12. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, a minister or a deputy minister about employment- related legislation that directly affects the terms and conditions of employment of employees in the public sector as it is defined in subsection 1 (1) of the Pay Equity Act. 13. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, the Minister of Finance, the Chair of Management Board of Cabinet, a deputy minister in the Ministry of Finance or the Secretary of the Management Board of Cabinet on any matter within the powers or duties of Treasury Board under sections 6, 7, 8 or 9 of the Treasury Board Act, 1991. 14. Persons employed in the Ontario Financing Authority or in the Ministry of Finance who spend a significant portion of their time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the Consolidated Revenue Fund, including persons employed in the Authority or the Ministry to provide technical, specialized or clerical services necessary to those activities. 10 15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit. 1995, c. 1, s. 13; 2001, c. 7, s. 16; 2006, c. 35, Sched. C, s. 23 (4). [emphasis added] [22]It is, of course, the ninth listed exclusion upon which the employer relies in the instant case and upon which it indicates it intends to rely in its application to the OLRB. [23]To summarize the relevant relative statutory provisions, the LRA provides that a person ?who, in the opinion of the [OLRB], exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations? is not an employee for the purposes of the LRA. CECBA, on the other hand, without directly addressing the issue of employee status, provides that the Act does not apply to ?employees exercising managerial functions or employed in a confidential capacity in relation to labour relations.? [24]In that context there may be some difficulty in conceiving of the precise scope or parameters of the inquiry the OLRB might undertake in a case such as the present one. Nor was I presented with any decisions of the OLRB which might clarify the question. It may be, of course, that even if the OLRB did not directly address the employee status issue, it might need to make a determination as to whether the Act (in this case, CECBA) applies to persons set out in paragraph 9 of Section 1.1(3). And such a determination might, effectively, resolve the dispute between the parties. Such questions are of course for the OLRB not this Board to determine. And, in any event, I note once again, the explicit agreement of the parties before me, at least for the purposes of the instant case, that both tribunals have jurisdiction over the employee status issue which separates them. In that context, while my comments about these latter aspects of legislative structure may be of passing interest, I do not rely upon them as a basis for my ultimate decision on the issue currently before me. 11 [25]There are other aspects of the 1993 CECBA reform which are relevant to our inquiry. The public sector/non-public sector labour relations duality reflected in the previous discussion was achieved, in large measure, through the extinction (subject to some transitional provisions) of the Tribunal. The Tribunal, a body formerly created under CECBA to serve certain functions relating to the interpretation and application of its constituent statute has been discontinued. Many of its functions have now been effectively transferred to the OLRB, a tribunal which provides a broad range of provincial labour relations and employment adjudicative functions. There can be no doubt that the OLRB, at least relative to the former Tribunal, is a body with a broader and more general jurisdiction. The Tribunal exercised a much more narrow and specific adjudicative function. Its expertise, like that of this Board, was rooted in its constituent statute, CECBA. [26]CECBA reform also introduced significant changes with respect to this Board, which it continued. The new Act, however, provided for dramatic changes to both the composition and administration of this Board and, further, to the processes of appointment to this Board. I will refrain from setting out all of the statutory provisions in detail (cf. Section 20 of old CECBA and Sections 46 and 47 of CECBA). The changes reflect a shift from governance (with respect to composition, administration and appointment) which resided primarily in the Lieutenant Governor in Council (although charged with the obligation to consider the views of the bargaining agents in some cases) to a model where the presumptive mode of governance involves the agreement of the collective bargaining parties. Thus, while the Board continues to be an institutional statutory tribunal with very specific expertise and jurisdiction, changes in its structure and composition have made it more akin to consensual boards of arbitration established under the LRA. And unlike the OLRB, the selection of Board members is rooted in the consensus of the collective bargaining parties it serves. 12 [27]I have reviewed the above factors because I believe they provide a useful context for understanding the decision of this Board in the AMAPCEOcase,supra, the only decision cited to me in which this Board has considered the deferral issue before me in this case. [28]In that case, the Board offered the following, at page 8 and following: The remaining question is whether I should defer to the OLRB. It has assumed the role previously played by the LRT [i.e. the Tribunal] in the public sector. This change in the legal landscape requires me to decide whether this board?s past practice of deferring to the LRT warrants deferral to the OLRB. The only stated rationale for deferral to the LRT on questions of employee status was that they fell within that tribunal?s field of specialization. In other words, the LRT was viewed as having greater expertise than this board. Both agencies dealt exclusively with the public sector, but the specialty of this board was the interpretation of collective agreements, whereas the specialty of the LRT was the application of CECBA. With this division of labour in mind, Vice-Chair Barrett in Ministry of Industry, Trade and Technology concluded that the LRT had a comparative advantage in making determinations of employee status. The tacit premise underlying this conclusion appears to be that such issues arose more often before the LRT than before this board. Does the OLRB have greater expertise than the GSB in relation to employee status in the public sector? The OLRB no doubt has a wealth of experience in determining the status of employees in the private sector. The record in this case does not indicate how often, if ever, the OLRB has made a determination of employee status in the public sector since assuming the jurisdiction to do so in 1993?As pointed out by counsel for the association, this board?s vast experience with public-sector labour relations gives it a sound grasp of the context in which disputes over employee status arise in the public service. Weighing all of these considerations, I am unable to conclude the OLRB has more relevant expertise than this board. Two other factors favour this board over the OLRB. The first is the expeditious resolution of disputes. The grievance was filed in October of 2003 and scheduled to be heard by this board at the end of April of 2004. An application to the OLRB was not made by the employer until early April and proceedings there had not begun when I heard argument in July. In these circumstances, deferral to the OLRB would delay the resolution 13 of the dispute. I agree with the association counsel that justice delayed can amount to justice denied in labour relations. The other factor favouring this board is party control over dispute resolution procedures. The parties here play a significant role in the governance of this board in general and in the fashioning of procedure in particular. As noted by counsel for the association, that part allows them to use a process such as med-arb when they deem it appropriate. Bearing all these factors in mind, I conclude that deferral to the OLRB is not warranted. [29]I fully agree with and adopt the views set out by Vice-Chair Brown. [30]There can be no questioning the OLRB?s vast experience in the adjudication of employee status disputes. However, as in the case just cited, there is nothing before me to suggest the extent of the OLRB?s experience in adjudicating such disputes under CECBA (and how, for example, that experience, if any, might compare with the volume of employee status cases dealt with by the Tribunal). And I agree with Vice-Chair Brown?s observation that ?this board?s vast experience with public-sector labour relations gives it a sound grasp of the context in which disputes over employee status arise in the public service.? [31]Further, the union made reference to the OLRB?s well known approach to deferral to arbitration (see Valdi Inc., [1980] OLRB Rep. Aug. 1254) and highlighted the OLRB?s comments in that case (at page 1257), supporting a policy of giving full play to a process, like this Board?s, of dispute resolution manned and administered by the parties. But more importantly for our immediate purposes, the only case referred to me where the OLRB has dealt, in any fashion, with a public sector employee status issue was in an unreported decision involving AMAPCEO. In that case, the employer, in October 2007, filed an application under section 114(2) with respect to one or more ?Operational Managers? in the Ministry of Community Safety and Correctional Services. The responding party trade union asked that the OLRB defer to this Board. On June 11, 2008 The Chair of the OLRB issued a written decision, with reasons to follow, allowing the union?s deferral motion, likely thereby suggesting something about the OLRB?s view of this Board?s expertise in dealing with employee status issues at arbitration. 14 [32]In summary, the parties agree that this Board and the OLRB have a concurrent jurisdiction to deal with employee status issues in the public sector. When I consider the various factors which might inform the exercise of any discretion to defer to the OLRB, I, like Vice-Chair Brown, find few, if any, such factors favouring such a deferral in the instant case. In particular, I have considered the following: a.The employer filled the position in April 2007; the grievance was filed in February 2008; the employer did not file its application to the OLRB until November 2008, virtually on the eve of the scheduled hearing in this matter. To defer to the OLRB at this stage would undoubtedly result in significant delay. b. The statutory scheme has shifted the relevant assessment considerably. Old CECBA involved a choice between two adjudicative tribunals (this one and the Tribunal) created by and exercising a specific expertise under the terms of their (same) constituent statute. In that context, where a specific and explicit statutory mandate was conferred on one of those two tribunals, the inclination to defer is more comprehensible. Under the current scheme, the choice is between a specialized tribunal exercising its expertise under the terms of its constituent statute and an expert tribunal exercising a more general labour relations and employment mandate without the same specifically and explicitly articulated mandate old CECBA Section 40 previously conferred on the Tribunal. All other things being equal. I am not persuaded that deferral to the OLRB is warranted, let alone that it is the prima-facie or preferred approach. c.Depending on its ruling, an OLRB determination may, effectively, determine the grievance. Or it may not. Thus, the deferral being sought here runs the risk of the need for separate proceedings at separate tribunals. In this context (and particularly where the party seeking a deferral maintains a position which keeps the possibility of dual proceedings alive), the choice between a tribunal that may resolve the grievance and one which will, clearly favours the latter. 15 [33]There may well be cases in which this Board may opt to exercise its discretion to defer an issue of employee status to the OLRB. This is not such a case. [34]Having regard to all of the foregoing, the employer?s motion to defer these proceedings to an OLRB determination is hereby dismissed. th Dated at Toronto this 5 day of December 2008. Bram Herlich, Vice-Chair