HomeMy WebLinkAboutUnion 11-01-14
IN THE :MATTER OF AN ARBITRATION UNDER SECTION 48 OF
THE LABOUR RELATIONS ACT, 1995 (as amended)
BETWEEN
Ontario Public Service Employees Union, Local 464 ("the Union")
AND
Ottawa Hospital ('The Hospital" or "the Employer)
And in the matter of Union grievance # 2008 0464 0010, concerning the scope of
the "paramedical baro-ainin 0- unit"
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BEFORE:
R.O. MacDowell
(Sole Arbitrator)
APPEARANCES:
For the Union:
Chris Bryden
Linda O'Regan
Mike Donaldson
(Counsel)
For the Employer:
J. D. Sharp
Maureen Daly
Christine Clement
Mike Hackett
(Counsel)
A hearing in this matter began in Ottawa, Ontario, on January 13,2011, and will
continue on dates to be fIXed in consultation with the parties.
ENDORSEMENT
I - What this case is about
1. The Union and the Hospital have had a collective bargaining relationship for many years
and are bound by a Collective Agreement that applies to "all paramedical employees" (with
certain exceptions not here relevant). The "bargaining unit description" is found in Article 1.02
of the Collective Agreement under the heading "Scope and Recognition".
2. The issue in this case is whether the "OPSEU Collective Agreement" covers certain
individuals in the recently-created position of "Physician's Assistant". The Union asserts that
the Collective Agreement applies to these "Physician's Assistants", while the Hospital asserts
that the Collective Agreement does not apply to them.
4. If the Union is right, then the "Physician's Assistants" will be represented by the Union
for collective bargaining purposes and their terms and conditions of employment will be
governed by the provisions of the Collective Agreement (and also, of course, by any regulatory
standards to which they must adhere). If the Employer is right, then their terms and conditions of
employment will be determined by their individual contracts of employment; and they will not
be represented by OPSEU in their dealings with their employer.
5. So the outcome in this case turns, primarily, on the interpretation and/or application of
Article 1.02 of the Collective Agreement.
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II - Some Mechanics
6. A hearing in this matter began in Ottawa, Ontario, on January 13, 2011. The parties were
agreed that I have been properly appointed under the terms of the Collective Agreement and that
I have jurisdiction to hear and determine the matters in dispute between them. The parties were
further agreed that if I find that the Hospital has breached its legal obligations in some way, I
have the responsibility to fashion an appropriate remedy.
*
7. As noted, the issue in this case is whether the existing "paramedical bargaining unit"
embraces a new category a professional employee; moreover, it is not disputed that if the Union
is correct in its submissions, there will be a practical and legal impact on the "physician's
assistants", who have heretofore been treated as being outside the bargaining unit. Accordingly,
the parties agreed that it would be prudent to give these individuals a formal notice of this
proceeding - whether or not they are "legally" entitled to it, and whether or not they would have
any "legal right" (let alone appetite) to participate, as parties, in an arbitration proceeding
between the Union and the Hospital.
*
8. The institutional parties (and their lawyers) propose to marshal the facts in support of
their respective positions; and I am told that I will hear evidence from at least one
"representative" "physician's assistant", so that I will have a better understanding of their
professional role and work functions. I am further told that parties will put before me some
documentary evidence pertaining to the organizational background and how these individuals
relate to other employees at the Hospital - including some job descriptions and some information
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from a professional association. In the circumstances, it is not obvious what a particular
individual might have to add to this evidentiary mix; however, since the results of this
proceeding will take the form of a written decision, the institutional parties have undertaken to
make those results available to anyone who would be interested in the outcome.
*
9. It is common ground that <'the facts" are unlikely to be much in dispute, and that the
primary question before me is one of interpretation: whether the disputed individuals fall within
the scope of Article 1.02 of the Collective Agreement. In the circumstances, Counsel indicated
that if there were a fulsome pre-hearing exchange of documents, the number of witnesses (and
hence the length of the hearing), might be significantly reduced, and the parties might also be
able to conclude at least a partial "agreed statement of facts" - which would also shorten the
hearing. Accordingly, this proceeding is adjourned sine die, so that this exchange of documents
can take place. New hearing dates will be set in consultation with Counsel.
10. In accordance with the agreement of the parties, I will remain seized in the event that
there is any difficulty with respect to the prehearing exchange of arguably relevant information
or the setting of additional hearing dates; and, in that regard, (if necessary) I will receive the
parties' representations by conference call.
Dated at Toronto this 14th day of January, 2011
"R.O. MacDowell"
R.O. MacDowell (sole arbitrator)
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