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HomeMy WebLinkAbout1988-0738.Union.89-03-20 ' ONTARIO EMPLOYES DE LA COURONNE - ~ . ' ~i CROWN EMPL 0 YEE$ DE L 'ON TA RIO GRIEVANCE C,OMMlS$1ON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z.8. BUREAU2100 (416)598-0698 0738/88, 0739/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor and The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: M.G. Mitchnick Vice-Chairperson J. Solberg Member A. Stapleton I~ember For the Grievor: A. Ryder Counsel Gowling & Henderson Barristers and Solicitors For the Employer: No Appearance Hearing: December 22, 1988 738/88 AWARD This matter involves a grievance brought against two private-sector employers, one being Charmaine's Janitorial Services, and the other an individual by the name of ~arold Luckasavitch. The only issue before the Board at this stage is whether it has the jurisdiction to entertain the present grievance, or whether the matter falls to be dealt with through "private" arbitration, under the machinery of the Labour Relations Act. Mr. Barry Campbell has been acting as counsel for the two employers in these proceedings, but in view of the limited nature of the issue currently before us, advised the Board that the employers would not be appearing at the hearing to make submissions. The only appearance at the hearing therefore, was made by the Ontario Public Service Employees' Union, through its counsel, and the Union took the position that on the basis of the relevant statutory provisions, it would appear that the matter has become one for private arbitration, and not one falling within the jurisdiction of the Grievance Settlement Board established under the Crown Employees Collective Bargaining Act. we agree. The only background necessary to a determination of the issue before us can be found in a decision of the Ontario Labour Relations Board involving these parties, inter alia, and dated August 26, 1988. That decision emanated from proceedings brought by the Union under the Successor Rights - 2 - (Crown Transfers) Act, seeking a declaration that the Crown in Right of Ontario, as represented by the Ministry of Natural Resources, had transferred various undertakings, previously performed by it under the terms and conditions of the Union's collective agreement, to private employers, and that those private employers were accordingly bound by the terms of the said collective agreement. Section 2(1) of the Successor Rights (Crown Transfers) Act provides: where an undertaking is transferred from the Crown to an employer and a bargaining agent has a collective agreement with the Crown in respect of employees employed in the undertaking, the employer is bound by the collective agreement as if a party to the collective agreement until the Board declares otherwise. The proceedings before the Ontario Labour Relations Board involved a number of consolidated files, the undertakings (and alleged transfers) with respect to each of which are described at paragraph 5 of the Labour Board's decision: 5. The allegation in File No. 0815-88-R is that the Crown transferred "janitorial services for comfort stations, vault toilets, vault privies and garbage-disposal buildings" in Algonquin Provincial Park ("the Park") to Charmaine Olmstead c.o.b, as Charmaine's Janitorial Services ("Charmaine's"). In File No. 0848-88-R, OPSEU alleges that "the transplanting [of] black and white seedlings at the Dryden Nursery" has been transferred from MNR to Moose Creek Forestry Company ("Moose Creek") which, as part of the same transaction, transferred it to - 3 - Gullwing Forestry Ltd. ("Gullwing"). The ~ alleged transfer in File No. 0850-88-~ is of ~ "the concession to provide Algonquin Park ~ interior access point and campground services at Rock Lake Campground, Coon Lake Campground and Rock Lake Interior access point" from MNR to Hal Luckasavitch ("Luckasavitch"). The issue which the Labour Board had before it is then set out at paragraph 7: 7. In each case, whether transplanting seedlings, performing janitorial services or providing information and permits to Park users, the functions being performed by the employees of the private respondent (or by Luckasavitch and his wife) were previously carried out by employees of MNR. The questions to be determined by us are two: do these functions constitute an "undertaking" within the meaning of clause l(1)(h) of the Crown Transfers Act; and if they do, have they been "transferred" from the Crown to the private'respondents within the meaning of clause l(1)(f) of the Act? Counsel for the Crown contends that all these contracts constitute "sub-contracts" of the work involved and therefore do not fall within the meaning of "undertaking" in clause l(1.)(h) of the Act. The position of the Union prevailed with respect to all three of the applications, with the Labour Board finding in each case that there had been a transfer o~ a part of the ~inistry of Natural Resource's undertaking known as "Algonquin Park" to the private-sector respondent. The Labour Board's conclusions are set out in paragraphs 19 to 31, in the following terms: - 4 - 29. We declare that there has been a transfer to Moose Creek Forestry of the undertaking or part of an undertaking encompassed by the contract between the Crown and Moose Creek Forestry and that Moose Creek Forestry is bound by the collective agreement between the Crown and OPSEU. 30. We further declare that there has been a transfer to Luckasavitch of the undertaking or part of an undertaking encompassed by the contract between the Minister of Natural Resources and Luckasavitch and that Luckasavitch is bound by the collective agreement entered into by the Crown and OPSEU. 31. We further declare that there has been a transfer to Charmaine's of part of an undertaking encompassed by the contract between the Minister of Natural Resources and Charmaine's and that Charmaine's is bound by the collective agreement entered into by the Crown and OPSEU. The nature of the present g~ievances were not gone into before us in any detail, but we understand them to consist of allegations of violations of OPSEU's collective agreement which the Ontario Labour Relations Board. decided in the above-quoted decision is applicable at the present time to the private-sector employers to whom portions of the Crown undertaking were found to have been transferred. Had those portions of the undertaking remained in the hands of the Crown, any grievances under the collective agreement pertaining thereto would of course have been matters to be dealt with by the Grievance Settlement Board established for the Ontario public service under the terms of the Crown Employees Collective Bargaining Act. Section 19(1) of that Act provides: - 5 - 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 referred 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. The Act, as its title indicates of course, only applies to "Crown employees", and "parties" are in fact defined as: "party" means the employee organization that is the bargaining agent for a bargaining unit, on the one hand, and the employer, on the other hand, and "parties" means the two of them. "Employer", in turn, means only "employer" means the Crown in right of Ontario. And, in case any doubt still remains for anyone as to the scope of the Act, that same definition of "employer" applies to what for the purposes of this Act is meant by a "collective agreement", being: - 6 - "collective agreement" means an agreement in writing between the employer and an employee organization covering terms and conditions of employment. (emphasis added) From all of that it can be seen that the "Grievance Settlement Board" is a tribunal set up under the specific terms of the Crown Employees Collective Bargaining Act to arbitrate grievances arising out of the collective-bargaining relationship between the Crown in Right of Ontario and its employees. The term'"employee", we might simply add, is · defined in the Act as "a Crown employee as defined in the Public Service Act..."', in other words, an employee in the Ontario public service. The application of the Crown Employees Collective Bargaining Act (with its dispute-resolution mechanism, the Grievance Settlement Board), therefore, is not determined by who the bargaining agent is. It is not unusual for the present bargaining agent, for example, while identified as the "Ontario Public Service Employees Union", to maintain collective- bargaining relationships with employers who are not "the Crown", and'whose employees are not members of the Ontario "public service" (as defined by the Public Service Act). And those collective-bargaining relationships, we recognize, are in practice dealt with not by the terms of the Crown Employees - 7 - Collective Bargaining Act, but of the broader-based Labour Relations Act. What, then, happens when an undertaking or part thereof that was formerly operated by "the Crown" under the terms of the Crown Employees Collective Bargaining Act is transferred to an employer other than the Crown? Exactly what you would expect: section l(1)(e) of the Successor Rights (Crown Transfers) Act states that "employer" means an employer other than the Crown and section 6(2) provides: Except as otherwise provided in this Act, where an undertaking is transferred from the Crown to an employer, the Labour Relations Act applies to a bargaining agent that has representation rights in respect of the employees employed in the undertaking and to the employees and where an undertaking is transferred from an employer to the Crown, the Crown Employees Collective Bargaining Act applies to a bargaining agent that is certified as a bargaining agent in respect of the employees employed in the undertaking and to the employees. The section could, perhaps, have used broader terms in its drafting than the "bargaining agent" having representation rights, but it makes no sense to suggest that the new Act is made to apply to the "bargaining agent", but not to the various aspects of the bargaining relationship for which the bargaining - 8 - agent holds those representation rights. Rather, the intent of the section is obvious: when an undertaking is transferred from the Crown to a non-Crown employer, the Labour Relations Act thereafter applies, and not the Crown Employees Collective Bargaining Act; conversely, when an undertaking is transferred from a non-Crown employer to the Crown, the opposite occurs. Thus, in the present case, with the Ontario Labour Relations Board having declared a transfer of part of an undertaking to have taken place between the Crown and Charmaine's janitorial Service, and between the Crown and Harold Luckasavitch, the enforcement of the collective agreement thereby transferred to the two non-Crown employers becomes a matter governed by the provisions of the Labour Relations Act. That Act, we would note finally, has a provision which parallels section 19(1) of the Crown Employees Collective Bargaining Act, and which states: 44.-(1) Every collective agreement shall provide for the final and finding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as.to whether a matter is arbitrable. The remainder of section 44 (in the absence of a statutory and permanent Grievance Settlement Board) then deals with the -- 9 -- mechanics of the parties setting up an ad hoc tribunal to arbitrate any dispute they may have under the collective agreement, in the event that they themselves are unable or unwilling to do so on a mutually-agreed basis. The Board accordingly finds that it does not have jurisdiction in this matter, and the proceedings are hereby terminated. DATED AT TORONTO THIS 20th DAY OF March , 1989. M. G. Mitchnick, Vice-Chairman J. Sol'erg, Member~ / A. Sta~leton, Member