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HomeMy WebLinkAbout1990-1036.Ally et al.91-01-22 , - " . :.'"- - , , ONTAR(O EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO .11 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS . - -- ,. ~ ISO DUNDAS STREET'WEST. SUITE 2100, TORONTO. ONTARIO, MSG lZS TELEPHONEITÉLÉPHONE: (416) 326-1388 180, RUE DUND~S OUEST, BUREAU 2100, TORONTO (ONTARI~). M5G lZ8 FACSIMtLEITÉŒCOprE:, (416) 326-1396 , '. . ' - 1036/90 ,..., .~ , IN THE MATTER OF ·AN ARBITRATION Under , .- ~ THE CROWN BHPLOYBES COLLBCTIVE BARGAINING'ACT . Before' , , " - ~ THE GRIEVANCE SETTLEMENT BPAR» . . " BE~EN - L _ OPSEU (Ally et all j . Grievor , . . - and - The Crown in Right of Ontario ... (Ministry of Labour) 1 i , . - ··~t r -. i<~ Emp1oy~r . '. BBFORE: w. Kaplan - . Vice-Chàirperson , _ M. Vor-ster "- Member '. I " . . Member - _,A. G. Staple~on FOR TJIE . '. . S. McCormack EMPLOYEES Counsel .Stikeman, Elliott . : Barristers & Solicitors . - - , ..' I. Roiand - ~ - FOR ,THE ONIO~., ' Counsel - - - , , - Gowling~ Strathy & Henderson Barristers & Solicitors FOR THB c. Riggs EMPLOYER Counsel . Hicks Morley Hamilton stewart storie Barristers & Solicitors HEARING: November 15, 1990 . r . ¡ , ( . . 2 Introduction By a letter dated July 26, 1990 Mr. steven J. McCormack requested that "a hearing be scheduled before the Grievance Settlement , Board in respect of the ,matters addr,essed in our clients' grievance. II Attached to this letter wal:; a document containin9 . the foÌlowing: STATEMENT OF GRIEVANCE The . claim that they are" improperly included gr~evors ... within the bargaining unit pursuant to Article 1.1 of the collective agreement between thl¡a Management Board of Cabinet and the ontario Public Service Employees Union and that accordingly union due"s are being improperly deducted from their: bi--weekly pay. The grievors claim that they are perscms employed in a managerial or confidential capacity and therefore are excluded from the bargaining unit pursuant to clause f J of ~ubsection, 1 of The Crown Employees Collective Bargaining Act. 0 SETTLEMENT REQUESTED A declaration that the grievors are not and have never been within the ambit of the bargaini.ng unit ·set out in . the collective agreement as well ac:' full retroactive ..- pay and benefits in accordance with the management I compensation scheme. In addition, the grievors seek an order directing the employer to ceaSE! and desist in the improper deduction of union dues from the grievors bi- , weekly pay. ; Attached to the Statement of Grievance was a list of "grievors" . (hereinafter referred to as lithe employees,II). Subsequently, by a. letter dated November, 2, 1990, three additional names were added to the list. A hearing was held in Toronto, at which 1:ime both the union and the employer raised a preliminary issue as to the arbitrability of this matter. Argument was heard and the Board reserved its . l· ,0 , 3 f I ruling on this issue. I ! ','Backqrou~d to the Case ~ It'is not necessary to' review the background to' this case in detail. Suffice it-to say, from submissi6ns of counsel 'and :from -the -documents ,introduced - into evidence, : that' 'a group of Employment Standards Officers retained ,Mr. . McCorma'ck to file and process the above-noted complaint. ";... It is the view, of these .. employees that they are exempt from the application of The Crown , Employees Col~ective BarQaining Act because. they are persons I employed in a managerial capàci£y by virtue of the' fact that they ! -' exercise an -adjudicative fúnction. 'The Ministry'of Labour, (lithe I ! employer") agreed to discuss the matter in issue but in a letter, dated July' 2, 1990 stated' as follows: I , . " YOU' should, kllow,' however tha tit is the Ministry's ;';'-., position ,that your letter and the grievanc'e"attached to - , 'it' disclose no, violation of ,either the, collective agreement or the Cr..own Employees' Collective Baraaining ,I 'Act, and that the issues raised therefore do not come I .' ' within - the 'jurisdiction 'of the Crown Empioyees Grievance Settlement Board. Should the grievance i ", ' ~'proceedto· arbitration, i twill be the employer' s ~ ) position that the matter is not arbitrable. ' I Another letter, dated July 20, 1990 and addressed to a,ll the I Employment Standards Officers, observed that this type of dispute , - - was a matter falling within the jurisdiction of the Ontario Public Service Labour Relations Tribunal. At the request of Mr. McCormack, the R,egistrar, scheduled a hearing before the Grievance Settlement Board. , ' /~ I \ . . 4 The Argument Argument began by counsel for the employees making a number of preliminary observations, followed by submissions from union and em.ployer counsel, followed by a deta i. led argument from the counsel for the employees. All counsel w,ere then invited to ma}:e ,some concl udinq submissions. It, is convenient, however, to set out the argument of the union and empl'::>ye~ first, followed by that of counsel for the employees. " For the union, Mr. Roland argued that there was no grievance before the Board. According to counsel 1:here are two parties 1:0 the collective agreement, the union .and the employer. Article 27.1 states: It is the intent of this Agreem.ent tÖ adjust as qt¡ickly as possible any complaints or differences between the parties arising from the interpret~ltion, application, administration or alleged contravention of this Agreement, including any question as to whether a m.atter is arbitrable (emphasis ours). Mr. Roland advised the Board that there was no complaint or difference between the parties, and this positio~ was endorsed by Mr., Riggs on behalf of the Management Board of Cabinet. CounsE~l submitte¢l, in that there was no difference between -the partieE~, that there was no grievance properly before the Board. I. with respect to the Board's jurisdiction, union counsel referred the Board to relevant cases on point.: This issue was apparently considered first in- Francis (Brandt) 1528/86. In the Francis case . the union agreed that a grievancl9 claiming an imprOpE!r ., . "\ I 5 discharge would not be processed 'to arbitiâtion. The 'grievor, however, sought to arbi:trate and a hearing was sched,uled by, the Board. The union did ,not appear at this'hearing and the employer raised a preliminary objection as to arbitrability. The Board in Francis, decided that the grievance was not ::arbi tr~ble'. . , - . _ .....·..4 , This is the first occasion, to our knowledge, ·'where the Board has had to consider the extent of a griev,or's " ,statutory right _ to grieve where his' òwn union 'has, during ·the course of the grievance procedure 'settled qr , withdrawn the grievance. ' ',,' ;, --" The resolution of this question requires an analysis of - : ,the language of Section 18 (2)' wherein it is provided that the "matter may be processed in accordance with the procedure 'for final determination applicable under Section 19. The submission of counsel...is as follows. Section 19 of the Act provides that -a matter may' be 'referred to - the . Board n In the event the parties are - unable to " effect a' settlement of any differences between" them" . The "parties" to which reference is made, are those, >- referred to in S. 1 (1) (k), - viz. the employee .f organization, that is the bargaining, agent and the employer.- r, It is s\1bmitted, firstly that there has'been a settlement· of the matter, by the parties' and that consequently, the condition which must be satisfied before a matter can be referred to the Board, ,that is, _ ,that' the ,"parties" have been unable to' effect a settlement, is not satisfied. 0 . . . . ,- "" _ I" . i. We agree with, the 'submission that, by rea~on of. the settlement of this matter between thè Union and the Employer, the matter cannot be brought independeptly to the Board by the grievor (emphasis not ours). The Board in Francis went on to discuss 'some of the , considerations underlying the distinction between the' right to 'grieve and the right to arbitrate, and it: observed that section 30, setting out the union's, duty' 'of fair representation, protected the interests of individual employees. J ~ . \ 6 The Board in Francis went on to say: Section 18 (2) and Section 30 can thus be rea.d as establishing a code of individual employee rights within a collective bargainingregi.me. section 18 (2) has been held by this Board...to prevent the parties to collective bargaining from negotiating provisions which would have the effect of preventing employees from processing certain kinds of grievances through. the grievance procedure. It does not, however, contemplate an automatic right to carry a grievance to the Grievance Settlement Board. The c(:mcluding clause of Section. 18 (2) provides that wh~re a g·rievance is not resolved in the grievance procedure it may be processed ,to the Grievance Settlement Board in accordance with .., the procedure for final determinatÍl:m a~plicable under §ection 19. Under Section 1'9 the Board has jurisdiction where the IIpartiesll;, that is the employer and the union, have not been, ,able to effect a settlement of the matter (emphasis not ours). . . . i: Consequently, it is our conclusion that so long as the j' current IIsettlement" is in effect, we do not have 'juriscUction to hear the grievance. It is therefore, II our order that the matter be adjourned sine die. In the event that the grievor were to successfully pursue his claim and to obtain relief· of a kind which would permi t us to take jurisdiction 1:he matter may be . rescheduled for a hearing on its merits. I In Blake (Shime) 1276/87, the Board was called upon to consider I whether the individual employee or the \mion controls access to arbitration witl'! respect to those matters where an employee hêls the right to grieve under section 18 (2) of the Act. 'That, of course, was' the issue in the Franc;s case, as well as in the ! instant case where the employees are arguably raising an issue I I related to classification. The Board in Blake began its examination by drawing a distinctionbet~...een the right to grieve and the right to arbitrate: We note that the grievance procedure and arbitration j ';' '\ ( 7 are two separate and distinct processes and while the gr,ievance procedure may lead to arbitration it :1s preliminary to that process; the ,right to grieve is not .sy~onymous with the right to' arbitrate. The union is responsible for negotiating 'the collective agreement, and also for its 'administration including ,the administration of the arbitration process. In a4ministe~ing the agreement the union has the responsibility to consider' the needs of ~ll the , ., employeespf the collective, ~nd make decisions fo~ the benefit of, the group. Many factors will en'ter into a d union's decision when it considers the competing interests' within the bargaining,unit and the union will undoubtedly make, decisions whe~e the individual " ,interest is s~ordinated to that of the group, subj ect 0< only" to the union's duty under section' 30 of the Crown Em~loyees Collective Bargaining. Act-that it '''not act in a manner ~hat is arbitrary, ;,discriminatory or in bad . fa~th". - ,Thus it is importan~ that the'union which' is " responsible for the collective interests of the members , of the'bargaining unit contro~ access to arbitration. ; . - , . Section '19 o~ the Crown Employees Collective Bargaining Act reflects the theoretical' position' that it is the .union, al1d .not the - individual, that control's access' ·to.. " the arbitration process. For. convenience, Section 19(1) provides as follows: .,., . I 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 I : inte~retation, application, administration I or alleged contravention of the' agreement, I including any question as to whether a'matter I is arbitrable, such matt$r may be referred tol arþitration to the Grievancè Settlement Board and the Board after g1 ving full opportuni ty \ " 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 employer covered by the agreement. ' Thus it is apparent that the arbitration of disputes is ,·to resolve' IIdifferences" 'between the "parties". section 1 (l) (k) of the Act. defines a party -as the employee organization and the employer - an individual employee is not a party (at 1~2). _.. r The Board in Blake recognized that 'section 18(2) grants employees I ' ~ I . : 8 in limited circumstances a statutory righ.t to grieve and process the grievance through the grievance procedure. As Chairman Shim,e 11 f also noted, "what is not clear from section 18(2) is whether th'e grievor may also process matters to arbitration?" (at~ 3) . To answer this question, the Board in Blake thoroughly reviewed th<e . reasoning in the Francis case and It adopted that reasonißl:;J without qualification. The Board in BlakE~ wept on to say: Parenthetically, we note, that gra:mmatically Section '" 18(2) specifically grants the empl,:>yee the right to grieve in the active sense but that the employee's right does not continue throughout the Section. Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only lithe matterll that is entitled to proceed in accordance with the , \ arbitration procedure in Section 19. The employee while given the right to grieve . not specifically 1C' .., given the right to proceed to arbi tréltion (at 7). The Board in lllake accordingly dismissed t:he application. union counsel also drew the Board's attE!ntion to the flodqins 2~ TUrner (Weatherill) 425/80 decision. ' III Hodgins k Turner thla issue was raised whether the Board clould hear a grievancl~ relating to the transfer of two employees from managerial positions to the bargaining unit. This transfer was affected a$ a result of the -agreement between the e:mployer ,and the union. The Board made a number of observations about its jurisdiction I relevant to the instant case. This Board's jurisdiction to, hear and determine employee grievances is found in The Crown Employees Collective Bargaining Act, and in the collective agreement between Management Board of Cabinet and the Ontario Public Service Employees Union. In that collective agreement, and in accordance with the Act, the Union is recognized as the exc::lusive bargaining ""=' r'4o 9 agent for 'Ilall puþlic servants other tl1an persons who are. not employees" within the meaning ,of the Act~" The griev9rs are ,public servant~. The, parties to. the 'collective agreement -.. ,.the e~ployer ançl the '. union - I agree that they, are not .lIemployed_ in a managerial " capacityll,' and that they ~r~ employe~~ wi thin ' the meaning of the Act. ' . _ ' _ By'seètion 18 (2) ofth~, ',Àct, 'an êmpl.qyee., claiming improper classification,. apprai.§l.!ll, pontrary J to governing principles and standards- òr discipline or, dismissal without just cause, may process a grievance ,- in ·accordance with the collective' agreement and, eventually, proceed to arbitration before this Board. None of those grounds of, jurisdiction is asserted in .. this case. . , . Section 18(2) provides that the rights to grievance and arbi tration arising thereunder are II in addition ·to any other rights of grievance under a collective agreement", and section 19 (1) . of the Act provides that every collective agreement be deemed to contain, a provision for the arbitration of any differences, arising between' "the parties" as to the inter.pretation,· ",'" . application .administration or alleged contravention of. ,.- - . the collective agreement. The "partiesll are ,the employ~r and the union: see the.Act, . section 1(1) (k). The issue raised by these grievances is. not. Clne of, , classification as such, but is rather one of the status of the grievors as "employeesll within the meaning, of, -' '. " The, Crown Employees Collective Bargaining Act. In particular, the question- woulçi, appear to, be whether or "' not, with respect to each of the cases before us, the grievor is employed in a managerial- capacity. It may well be that in the course of deciding grievances properly before it this Board would need to make certain determinations as to whether or not certain - ,individuals are "employees". An individual's claim .to be recogniz"ed as an employee or otherwise,' or, to be recognized 'as employed in a managerial capacity or not,' is not the sort of claim for which, a right of grievance is, provided under the Act or under the Collective Agreement. Determinations of questions of that sort are of course, frequently made by the ontario Publ ic' Service Labour Relations Tribunal, but we express no opinion 'as to whether or not the Tribunal would have- jurisdiction to entertain individual applications with respect .to status as an "employee". ' , ,The question whether or not an indìv~dual is excluded from membership' in a bargaining unit by reason of' his · 10 I not being an "employee" may be i:hought to be one arising from the application or adnlinistration of the collective agreement binding on the bargaining unit. Such questions are arbitrable, ho,wever, only 'where there is a difference between "the parties", and where the parties are unable to effect a settlement of such difference. In the instant case, there is no difference between the parties.' They are agreed that the grievors are not employed in a managerial capacity and that they are "employees". The]::,e is therefore, no difference which may properly be brought before this Board for arbitration (at 3-5). In Mr. Roland's submission, the very l5~ame issue litigated i.n " Francis, Blake and nodgins k Turner was again before the Board. Union counsel submitted that even if, for the sake of argument, the complaint of the employees in this case were treated as a classification grievance, the jurisp~de][1ce is clear that the!:ie employe.es do not have an independent. ri~;ht to arbitrate. They " .. have certain rights to grieve, but it' is the union which decide!s the cases that will proceed to arbitration. The union has nelt only decided that this case will not pro1ceed to arbitration, i.t - has gone on record as saying that there is no matter in dispute I between the partie~ and therefore there i:; no issue that could be the basis of an arbitration. I I i Mr. Riggs, on behalf of the employez:, endorsed and adopted the arguments put forward by union counsel, and reiterated the fact that there was no difference, in this case, between the two I parties. On behalf of the employees Mr. MC,CorIllack made a number of submissions. In brief, Mr. Mccorniack argued that both the I ~ . 11 Collective .Agreement ,and~ the Act' could' be interpreted in'such a manner so as to support an. independent right to grîeve. . In addition, counsel, submitted that insofar as previous Boards, such , , . failed to ,recognize such, an indeperide~~ right, as in Blake, had , '. ,. , those decisions w~re wrong and/or.distingUishable:·" .! ! ,. Mr. McCormack", began his' , detailed submissions by drawing the Board's attention . to a 'decision' of ',the' Ontariò' ,Public Service .. " Labour . Relations'._ Tribunal, Leutz ånd . Ministry of ' Correctional Services T/18/77.~ ' In this case the Tribunal was called upon to , " determine whether or not individuals could bring applications' for , determination, ~ of' employee status to the Tribunal. -,' In the end, the, Tribunal,' decided_ that they could ,not. .- Mr'. McCormåck'èited this case, however, for the recognition tþat this decision gives -; to~the proposition that the parties can ,determine whether or not .. an individual has the ri9b~ to process ~ a ~rievancethrough to another,' way', the' ~eutz r relying' on j arbitratipn. Put decis'i:on, decisions pf the Supreme ,Cou,rt of Canada such as ' McGavin I Toastmaster (l975) 54 'D.L.R. (3d) stands for the proposition that I where there is a collective agreement in force the union is the \ I exclusive" repres.entative· of the employees. In the instant case, I , counsel argued, the union ' had negotiated with the - emplõyer an individual right to grieve and the Board ·should take cognizance of this. ; According to counsel, this independent right could be found in I . . , . ¡ '12" Article 27 of the Collective Agreement, in particular Article 27.4. This article provides that if a grievor is not satisfied with 'the decision of the Deputy Minister or his designee ()r if he does not receive the decision within the :specified time the grievor may apply to the Grievance Settlement Board for a h~aring of the grievance.... Counsel submitted that the t.¡ords "the grievor may apply" evidenced the intention of the parties to 'provide individuals with a right to arbitrate. In counsel's view, this argument was r" buttressed by Article 27.6, which states that lithe employee, at his option, may be accompanied and rep:resented by an emploYE~e representative at each stage of the grievance procedure," as well as by Article 27.6(1) , which speaks 0-£ an employee making an ì application for a hearing before the Griev'ance Settlement Board'. I Counsel argued that it is a commonplace of the law that where rights exist there must be a remedy. In his view, the abovE!- , I noted provisions of the Collective Agreem.ant gave individuals the right to arbitrate, and the' Board must therefore tak:e jurisdiction in this case. In this I req.ard, Counsel noted that Section 30 of the Act offered little to the employees in the instant case because the union could not he said to have acted in a manner that is arbitrary, discriminatol:Y or in bad faith. It would be very difficult, counsel sUbmitted, for the employees to maintain a section 30 complaint in thE~ circumstances of the instant case. I 0' r; . '\ 13 Counsel also cited the well-known decision of' the Divisional ~ Court in ·OPSEU and 'Berry' and MinLstrv of Community and 'Social . t..' services . (March 13, 1986), and 'argued that this decision stood for the proposition that if a right to grieve under seètion" '18 (2) of the Act cannot be restricted by the ColIective Agreement, then . there should also be a right to proceed to arbitration before the ,.' Board .- Moreover, counsel . šubmi tted that' the decisfon of' the Divisional Court in Ontario (Attornev General) v~ OPSEU et al, 14 ' , 9~A.C. 23·3 stood for the proposition that the Bo'ard has the power to òrder' ,reclassification outsid,e of the bargaining unit and , , should take jurisdiction'"·to -do so in, the instant case. . I . ._- - 'with'respect to the Blake decision, counsel" submitted that it was wrong because' it failed to give the employees any remedy for . their right. Moréclver, Blake was premised on an incorrect - interpretation~of Section 18(2) òf the Act. :', Counsel' pointed 'out that this section includes the phrase flirÌ' addition to any other I I rights , of grievance", and he argued, that the rights being referred' 'to noted - "in ,Article of the, were those ' above 27 Collective Agreement. Moreover, counsel argued that in providing a statutory' right of grievance in certain cases such as cla~sification disputès,' the Legislaturen did" not -intend to limit , " I that right to ,the grievånce procedure by only providing the union and the employer access .to arbit·ration. .'In addition, counsel I ! submitted that both Blake and Francis ,could be distinguished from I I the instant case becáuse in Blake and in' Francis the employees I ) ! I ( - . I . . ; 14 I 1 I , I were not effectively precluded from filing a section :10 , I I application. The employees in the insta:ot case were effecti ve:~y I I precluded because the union could not¡be said to have acted in an arbitrary manner in not bringing a case 'to arbitration where the result of doing so may be to weaken the bargaining unit. with respect to jurisdiction, counsel fClr t~e employees cited a decision of the ontario Court of Appeal,r Re Canadian Industries '" Ltd. , [1972] 3 o. R. 63, where the Court was called to determine whether a private board of arbitration had the jurisdiction 1:0 consider employee status. The Court concluded, in the process of construing provisions similar to those found in the Act, that the Ontario Labour Relations . Board was not granted exclusive jurisdiction with respect to this matter. Counsel argued that likewise, the Tribunal did not have exclusive juriSdiction with relation to the matter of status and that that issue could be I considered by the Board. The final case referred to by. counsel :for the employees is I~e Downing and Gravdon et aI, 21 O.R. (2d) 292. This decision ()f the Ontario court of Appeal finds thél t Employment Standards 1 ¡ I Officers have certain adjudicatory powers. This finding establishes, in counsel's view, a ~la facie case . that the employees in question should' be excluded as managerial employeE~s from the bargaining unit. I l . " '0, " " I ! I ' , 15 Finally,' counsel ~ r, . +. . .. ~ ¡ fo'r the employees 'submitted that :the Board was , obligated to act 'fairly and to-interpret the Collective Agreement ~ provîde -- - and the Act 'in such a way so as' to a remedy for the employees in this case~ ~ , . . , H, ~ " '. . 1 . pecision . . I . _ ~ ,- - .. In our view we have no jurisdiction~o hear this matter as it is, . u not properly before the Board .-'; While it is true that' employees .. . .. have certain statutory rights with respect to grievances; the Act ~ - is':' clear that the arbitratión ,process 'is one for the ... T" determination of disputes between the parties. . ' There is' no difference or matter in dispute in the ins~an~ case between the . r· " ". <. - .. " parties. In this regard, we adopt the reaso~ing and the rulings [j.:.~:J .: ..~ .. in both the Francis and Blake decisions. , .'.. . , - . " . ... --, ~ ..~ We are also of the vi~w that the matter of ,employee status is a r:.' '. . .' 1". ... . matter to be determined by' 'the ,Tribunal, not.by this Board. In ,. Ontario, tAttòr~ey, General) v. OPSEU et al; 14 O.A.C. 233, cited ^ by counsel for the employees, Mr. Justice Saunders found that: In the ontario PUblic Service, there is a distinction between 'bargaining unit employeês' and non-bargaining unit employees. The distinction is sometimes·referred to as a question of status. An unresolved dispute with - . respect to status', ofa partièular employee is determined by the Labour Relations Tribunal established under the Act. status 'is separate and apart from classification. The board has jurisdiction to consider 'job classification but not' status (at 234) 0 Quite clearly, this case is not one of classification but is one of'status, and that issue must ""bedetermin'ed by the TribunaL In ~ . . , . i - 16 his closing submission, counsel for the employees requested the Board to exercise its jurisdiction under section 40 and refer the matter of status to the Tribunal. section 40 reads as follows: (l)If, in the course of bargaining for a collective agreement or during the period ,of operation of a collective agreement, a question ari.ses as to whether a person is an employee, the question may be referr'ed to the Tribunal and its decision thoreon is final and binding for all purposes. (2)If, in the course of bargainihc;J for a collective agreement or during proceedings before a board of ,.. , arbitration, a question arises as t:o whether a matter comes within the scope of collective bargaining under this Act, either party or the board of arbitration may refer the question to the Tribuna:L and its decision thereon is final and binding for'all purposes. In our view, section 40 (1) doe.s not gi:ve us the authority t:o refer this matter to the Tribunal. In Leutz, the Tribunal was called upon to interpret section 38, now section 40, of the Act, and it reached the following conclusion ~oich we adopt: . . . and thus we interpret the intent of the section, as did the Ontario Labour Relations Board in similar circumstances, as granting an opportunity to the employer or the union to refer such questions to the Tribunal. It is an issue betw«~en them and the individuals, while they certainly nlay be affected by the outcome, are not directly involved. We adopt the same view with respect 'to similar questions that may arise during the operation of a collective agreement (at 8). With respect to subsection (2) , this provision refers to the question of status arising during 'the course of collecti via bargaining or during proceedings before él board of arbitration. I The "board of arbitration" referred to. in this provision is to bE~' I distinguished from the Grievance settlement Board. Accordingly j' a'" i' '. I I ' , I I I 17 we have no jurisdiction to make such a ~eferen¿e~ ., Counsel for the '-employees argued that if, - we did not assume jurisdiction - in ,this casè, . the emplóyees . would not receive a ,remedy for their right. With, respect,' we disagree. First of '. all, we are.not persuaded by any of the argumènts with respect to , . " .. , , 18 1 are distinguishable from the matter DE!fora the Board in the ~. 1 instant case. The decisions in Berrv, and Ontario ( A ttornEŒ. i I General) v. OPSEU et aI, and Re Canadian Industries Ltd.~ can be readily distinguished from the instant case. In the first t\liO cases, the Board was called upon to a,rbitrate classification 'grievances brought to it by the parties. In the third case, the arbitration board 'was called upon to consider an employee's status, in the course of determining a grievance brought to it by " the parties. All three cases é;lre, ~ccordinglY, very' different from the instant one( which is directed solely at determining employee status, and which is nc)t being brought by the parties. There is no difference between the parties. Therefore, as the . - Board said in Hodqins i Turner, there ·can be no arbitration. . Under collective bargaining individual i.nterests, with limited exceptions not pertinent to the instant case, are subordinated to collective ones. A statutory scheµle 'has been created to ensur4; f that these individual interests are not completely subsumed by , I the collectivity by prohibiting union conduct that is arbitrary, discriminatory or in bad faith. If th~ employees in this caSE~ believe that they have not been tre¡:ited fairly by their bargaining agent they have a statutory right, of remedy. It ie:· .. , embodied in section 30 of the Act. Counsel for the employee!:; I stated that such a complaint would be hard to maintain. We de> I ! not offer any opinion on that matter ~ 'rhe remedy exists, the employees apparently believe that 'they are acting as I ·' - .. . l 19 adjudicators, and they believe that they have a Court of Appeal decision on point. There. is nothing stopping them from filing a section 30 'complaint, just as there is nothing stopping them fr~m , / filing classification grievances. That is not what they have , done in this case. Rather they have asked the Board to determine , I their status, which is 'something the 19n9standing jurisprudence._ of this Board makes clear that we do not have the authority to do. We are in full agreement with the line of cases on point. ~ In the result, this matter is dismissed. I Dated at Ottawa this 22nd day of January 1Q9,.. LY(1 - illiam Kaplan Vice-Chairper~on I I ,~QJ~ M. Vorster Member (~ ' -4Cr fud-6 4 A. tap! on Member