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HomeMy WebLinkAbout1994-2354KLIPPEL__SWAIN__UN ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO __ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2354/94, 2355/94, 280/95 OPSEU # 95A302, 95A301, 95U019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Klippel/Swain/Union Greivance) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE S Kaufman Vice-Chairperson FOR THE R Davis GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Services Secretariat HEARING November 9, 1995 January 30, 31, 1996 1 INTERIM RULING This ruling concerns whether this board has the juris- diction to entertain the individual grievances of Lucilla Klippel and Bessie Swain and a Union/Policy grievance The grievances arose out of the following circumstances. OPSEU was certified as the bargaining agent for Versa Services employees, who, by a contract between the Ministry of the Solicitor General and Correctional Services, provided food services at the Metro Toronto East Detention Centre (MTEDC) . Ms Klippel and Ms. Swain were employees of Versa Services prioL to January 16, 1995 A collective agreement had not yet been reached between Versa Services and its employees. Effective January 16, 1995 the Ministry began to operate the food services functions at MTEDC. Earlier, it decided to reduce the staff complement that had been maintained by Versa Services, from 15 to 9. Ms Klippel and Ms. Swain each received a Notice of Lay-off from MTEDC Supt Carl DeGrandis dated January 13, 1995. On January 18 and 20, 1995 they grieved that management had violated Arts 24 and 25 of the collective agreement, had violated the Employment Standards Act, and had dismissed them without just cause. A union grievance was filed on February 1, 1995. Ms. Klippel was subsequently offered and accepted an unclassified Cook 2 position, effective March 7, 1995. Ms. Swain, who had been a Cashier until January 15, 1995, was not rehired. The Ministry's Ar9uments: The arbitrator's and this Board's jurisdiction flows from the collective agreement and the legislation giving rise to it. Article 1.1 indicates that OPSEU is the bargaining agent for "public servants". The Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50, as amended, (CECBA) 2 incorporates the definition of public servants found in the Public Service Act, R s.o. 1990, c. P.47 as amended (PSA) S 8 1(1) of the PSA states: An individual is not considered to be a public ser- vant unless he or she has been expressly appointed as such by the Lieutenant Governor in Council, the Commission, a minister or a designee of a minister S. 8.1(10) states: In the absence of an express appointment of an individual as a civil servant, public servant or Crown employee, the individual's appointment shall not be inferred solely from the circumstances of his or her employment. In view of the above provisions, an arbitrator cannot appoint someone to the public service, and therefore cannot assume jurisdiction of these disputes. This Board cannot assume jurisdiction over a dispute involving people who are not appointed public servants in accordance with the PSA. The collective agreement does not apply to Ms. Klippel and Ms. Swain's grievances because they were not public servants Ms. Klippel and Ms Swain are entitled to redress only under the Employment Standards Act, R.S 0 1990, c E 14, as amend- ed (the ESA). The grievors do not have access to Arts 24 and 24 unless they are public servants They were not public servants at the time of the transfer of the food services function and at the time of their grievances. Gallagher (493/94), determined that the Grievance Set- tlement Board cannot assume jurisdiction over people who have not been appointed public servants This board is required to follow the reasoning in Gallagher and the clear language in the Public Service Statute Law Amendment Act, 1993 Fur- ther, in Norfolk General Hospital and G.N.A (Knopf) unrepor- ted, February 24, 1994, the union asked the board to enforce a provision of the regulations under the Nursing Home Act. Arbitrator Knopf stated that she was unable to find a suffi- cient nexus between the regulation she was being asked to enforce and the collective agreement. There is insufficient " - '" .) nexus in this case, such that this board cannot accept juris- diction of the dispute. In Metropolitan Toronto Reference Library Board and C.U P.E., Loc. 1582 [1995] 46 L.A.C. (4th) 155, Arbitrator Burkett accepted jurisdiction over the dis- pute, but cited Norfolk with approval The Ministry has complied with the provisions of the Employment Standards Act. There is no distinction between the union's grievance and the individual grievances. It is a distinction without a difference. As the board will be un- able to effect the remedy the individual grievors are seeking in their grievances, no purpose would be served by proceeding with the union grievance The Union's Arguments: This Board has the jurisdiction, as part of its authori- ty to provide a remedy which has a final and binding effect, to order the employer to appoint a person as a public servant. The provisions of the ESA, as amended, made substantive and substantial modifications to the collective agreement, including appointments to the public service Those modifi- cations adversely effect the relative seniority of employees in Art. 24 and the employer's liability to lay employees off in order of seniority and rights to compete under Arts. 24 and 4. They provide benefits to non-public servants. These consequences give the grievors and the Union sufficient inte- rest to seek redress before this Board for the mistaken ap- plication, administration and violation of those provisions S. 7 (3) of CECBA, 1993, S.O. 1993, c 38 gives the GSB jurisdiction over all differences. S. 48 (12) j of the La- bour Relations Act, 1995, S.O. 1995, c. 1, [the LRA] (former- ly s. 45 (8) para. 3 of R.S.O. 1990, c. L.2, as amended) ap- plies to GSB boards of arbitrations and requires arbitrators ... 4 to apply the provisions of the ESA, and to harmonize the pro- visions of the collective agreement which conflict with it to the provisions of the ESA. In Metro Library, supra, Arbi- trator Burkett stated that s 45 ( 8 ) para 3 of the LRA extends rather than codifies the use that an arbitrator makes of an external statute in inter- preting and applying a collective agreement. In our view, s 45(8) codifies the existing practice in this regard. However, in addition to codifying the use that an arbitrator makes of an external statute and thereby, to act in the place of the body charged with its administration, the arbitra- tor can now order and enforce compliance with that statute. The effect is to reduce the duplication of hearings Furthermore, having been given the statutory authority to interpret and apply a sta- tute, the basis upon which an arbitrator's inter- pretation or application ot the statute may be overturned would be restricted to cases of "patent- ly unreasonable" constructions The effect, in ad- dition to reducing the duplication of hearings, is to bring greater finality to arbitration awards that interpret or apply an external statute From the above reasoning, this board should conclude that an arbitrator should cause the application of the collective agreement to harmonize rather than to contract the ESA, and to enforce the remedies under the ESA The collective agreement must be read in harmony with the ESA, and a remedy must be found The recognition clause is not the only basis of jurisdiction. Nothing prohibits a collective agreement from granting rights to non-employees to have their rights arbitrated at the instance of the union or the non-employee Arts 4.1, 4.2 and 4 3 1 require the employer to offer positions to the employees of a previous employer. Art 4 3.4 recogniz.es the employer's obligations under the Human Rights Code The employer has recognized an obligation under the ESA to offer positions to employees of the previous employer The employer must work in harmony with that law. 5 The Union addressed the Gallagher and Metro Library cases, supra, as well as the following cases: Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, and Weston Bakeries Ltd (1970) 21 L.A.C. 308 (Weiler); St Joseph's Hospital, London and 0 N.A. [1989] 8 L A.C. (4th) 144 (Burkett); O.P.S E.U. (Union Grievance), 2156/87 (Dissanayake); Steinberg Inc. and U.F C.W., Loc. 633 [1991] 24 L.A.C. (4th) 98 (O'Shea); Blouin Drywall Contrac- tors Ltd. v united Brotherhood of Carpenters (1975), 75 CLLC 14,295 (O.C.A.), Hotel-Dieu Grace Hospital and O.N.A. [1995] 47 LAC. (4th) 66 (Watters); Du Pont Canada Inc. and Kings- ton Independent Nylon Workers Union [1991] 19 L.A.C. (4th) 427 (Palmer); pinkerton's of Canada Limited and Intercon Security Limited and Ignatio Pinto and Ministry of Labour (unreported), June 22, 1995 (Muir) ESC 95-121; Raymond Brosko and Ministry of Labour and Intercon Security Limited (unre- ported) , January 10, 1995 (Randall) ESC 95-09; T.S.E. Manage- ment Services Inc and Ministry of Labour and Syed Ali (unre- ported), October 25, 1995 (Bradbury) ESC 95-199 Even if the employer's position that the board does not have the jurisidiction to hear the individual grievances is accepted, the union retains the right to grieve the manner of termination of the former Versa Services employees in respect of the terms of the collective agreement and the ESA. The terminations and the offer of the remaining positions of the former employees must be carried out in a manner that harmo- nizes the requirements of the collective agreement and the ESA. The union's policy grievance will address whether em- ployees in the position of the grievors are entitled to be laid off in order of seniority pursuant to s 56.7(1) of the ESA, whether they were entitled to be in a job competition, whether they were denied the right to return to their former positions and/or the right to surplus list rights, income protection rights, and rights to be assigned to employment on return from LTIP, under Arts. 42 and 46.2. 6 The board can infer the public servant status of the individual grievors from the need to harmonize the provisions of the ESA with those of the collective agreement. An arbitrator considering a policy grievance has a broad remedial jurisdiction and is not confined to issuing a decla- ration. The Grievance Settlement Board has always had the authority to order the appropriate person to do what was re- quired in order to remedy a breach of the collective agree- ment or the statute, which is confirmed in s 48(12) Conse- quently, the employer's submission, that under the PSA an arbitrator is precluded from appointing a person to the sta- tus of public servant, does not constitute a bar to an arbi- trator assuming jurisdiction. The thrust of this dispute is that the employer did not properly apply the ESA and the ESA affects rights under the collective agreement by modifying them The union has an interest in seeing that the ESA is properly applied and that the collective agreement is harmonized with the ESA to the extent that it has changed its terms The employer exercised its discretion to create new food service positions at MTEDC in the classified s~rvice, but having created them, the issue arose as to who was entitled to fill them, under the provi- sions of the ESA or the collective agreement Art 4 states that classified positions are to be posted, and confers upon bargaining unit members the right to compete for those posi- tions and the right that seniority will determine the outcome if the competitors are relatively equal. Such positions may also be made open for transfer under Art. 4.6.1, subject to the agreement of the union, the employer and the employee They can also be filled by employees under the provisions in Art. 5, by employees declared surplus under Art. 25, by em- ployees returning from Art 30 Special Leave and from LTIP, if able to perform some work under Art. 42, and from pregnan- cy and parental leave under Art. 50 and 51, if the work is comparable. The ESA provides that these new classified posi- . 7 tions must be given to the employees of the previous employ- er. The union, as party to the collective agreement which was affected by the ESA, and on behalf of its members whose rights were adversely affected, has an interest in ensuring that the employer correctly applied the ESA, and in ensuring that only those adverse effects that were required under the ESA were the ones that were imposed. S 56.7 ( 1 ) of the ESA deems a person who accepts an offer of employment from the successor employer "to have been been employed by the successor employer for the period during which he or she was employed by any previous employers", whereas Art. 25 l(a) states that an employee's seniority "will commence from the date of appointment to the Classified Service for those employees with no prior service in the On- tario Public Service". Seniority is applied in Art. 24 in determining who will be laid off and displaced. The ESA creates two groups of people, one with more seniority than the collective agreement accords them, which is dropped in the midst of other bargaining unit members, and this needs to be clarified Termination is always relative to other em- ployees. when seniority rights under the collective agree- ment are so fundamentally affected by a statute, the union has an interest in the statute being properly and legitimate- ly applied to the collective agreement. Some employees were not properly appointed and other former employees of Versa Services were not given the requi- site offer of employment required by the ESA. The union has an interest in ensuring that the right thing is done, and in demonstrating to its members that it will permit their rights to be affected only to the extent required by statute. There is no language in Art. 27 stipulating the union cannot file a grievance in circumstances where an individual can also file one. 8 The union is the only entity which can advance the inte- rests of the bargaining unit employees as a whole. The union has no standing before an adjudicator under the ESA. Though they may be similar, the interests of the individual grievors and the interests of the union are not the same The PSA amendment relied upon by the employer is an employment-related statute, which GSB arbitrators are obliged to interpret and apply It has no applicability except regarding the status of the individual grievors The employer's submission that the PSA amendment limits an arbitrator's remedial jurisdiction posits a conflict between two statutes, the remedial jurisdiction of arbitrators under CECBA, 1993 and the PSA amendment The Employer's Reply: The union has not established the necessary link between Art. 24 and 25 and the grievances; consequently this board is without the jurisdiction to hear them A person must be a classified employee in order to exercise bumping rights under Art. 24 and the individual grievors were not classified em- ployees. The union is asking the board to make the individu- al grievors public servants and the board does not have the jurisdiction to do so Art. 3 applies to unclassified employees. Art 3.12 states that the employer may terminate their employment on two weeks' notice. Art. 3.16 indicates that Art. 24 does not apply to unclassified employees, and that Art. 25 does apply to them Declaratory relief is issued to provide guidance to the parties. Declaratory relief would serve no purpose here. The union is seeking an individual remedy. If a declaration is issued, Gallagher, supra, will preclude any relief being sought, unless the union takes the position that the collec- tive agreement benefits override the provisions of the ESA. 9 The proper forum is under the ESA If the employer had been incorrect under s. 56 6 of the ESA, the adjudicator under the ESA would make his or her ruling. Pitirri, 2685/92 (Kaplan) and Niagara South Bd of Educ. and Teachers Federation [1980] 26 LAC. (2d) 332 (Kennedy) are examples of situations in which the boards saw no purpose in accepting jurisdiction, as, based on the facts, a declaration would serve the parties no purpose There is no appreciable difference or distinction be- tween the union's and the individuals' rights. The connec- tion or nexus between the collective agreement and the relief claimed under the ESA is not present in this case, preclud- ing this board from taking jurisdiction of the union grie- vance Oral Ruling: On January 31, 1996, I provided an oral ruling to the parties in which I concluded that this Board did not have the jurisdiction to hear the individual grievances of Ms Klippel and Ms Swain, but that it did have jurisdiction over the union grievance, and that I would assume jurisdiction over the union grievance. The following are my expanded reasons for my oral ruling. Review of Arbitral Jurisprudence: The article in the collective agreement in Blouin Dry- wall, supra, pertaining to how disputes were to be adjusted, was worded much more broadly than the recognition clause in this collective agreement. The Court of Appeal relied upon the broadness of the wording to conclude that the non-union members as well as the union were both entitled to grieve. As the language in the comparable articles in this agreement differs substantially from the language in Blouin Drywall, that case is of little assistance 10 In Steinberg, supra, art. 8.08 of the agreement entitled the grievor to revert to the bargaining unit after being discharged from a non-bargaining unit position, which enabled the board to find his grievance arbitrable The provisions of the collective agreement and the circumstances surrounding the termination of the employment of the individual grievors in this case differ substantially from those pertaining to the discharge of the grievor in Steinberg, supra. Conse- quently the reasoning in that decision is of little assis- tance in this matter In Du Pont, supra, former employees were affected by the employer's recalculation of their pension payment level The pension recipients were no longer in the bargaining unit. The union brought a policy or union grievance. The board of arbitration rejected the argument that the union was barred from arbitrating rights under the collective agreement rela- ting to former employees no longer actively employed. The decisions of the Adjudicators under the ESA may have some relevance to the merits of the grievance, but do not assist in the issue of jurisdiction before me The decision in Weston Bakeries, supra, turned on the specific language of the collective agreement in determining whether there was any limitation on the right of the union to bring a policy grievance or on the remedies available Wes- ton stands for the principle that the language of the agree- ment determines the rights of the parties and individuals to bring particular types of grievances. In St. Joseph's, supra, at p. 155, Arbitrator Burkett stated the circumstances under which a union could bring a union grievance and the remedies which the board could consider ...where there is a complaint that affects the bar- gaining unit generally which is properly of direct concern to the union, as is this case, such a com- plaint may be dealt with as a policy grievance un- 1 1 der art. 7.04. The filing of a policy grievance in these circumstances cannot be characterized as a "tactic" to avoid having to process a series of in- dividual or group grievances. Under this collec- tive agreement an individual or group grievance (which is not made mutually exclusive vis-a-vis a policy grievance under arts. 7.04 and 7.05) cannot be filed under the guise of a policy grievance with the effect of bypassing the carefully constructed hierarchy of dispute resolution However, where a true policy grievance (a complaint arising directly between the hospital and the association affecting the bargaining unit generally) is filed, as is the grievance in this case, there must be express lan- guage restricting the scope of the remedial relief that is available. It is clear on a reading of the jurisprudence that absent such express lan- guage the full panoply of remedies is available to make the union and its affected members whole should the grievance succeed In our view it would be straining the language of art 7.04 to read it as restricting the association's access to full remedial relief. Accordingly, we hereby find that we have the authority to make the association and the affected employees whole; including, if we deem it appropriate, the awarding of monetary relief to affected employees. The structure of the grievance provisions in the St. Joseph's collective agreement, though not the precise language, was somewhat similar to Art. 27 of the agreement in this case. As in St. Joseph's, the agreement in this case contains no express language restricting the scope of the remedial relief available on either a union or individual grievance. The instant agreement contains no language indicating the circum- stances under which a union grievance could not proceed. In Union Grievance (2156/87), supra, at p 14, vice- Chair Dissanayake expressed the view that the fact that a union grievance was before the board did not constitute a reason to deny compensation to the employees affected by the board's determinations. He pointed out that there was an interest in avoiding a multiplicity of individual grievances, which would not be supported if the board declined to award compensation on the union grievance. 12 Reasons: In 1994 and 1995 the individual grievors, Ms. Klippel and Ms Swain, were members of 0 P.S.E U , which was then the bargaining agent for Versa Services employees No collective agreement was reached between O.P.S.E.U. and Versa Services. Ms. Klippel was a kitchen helper employed by Versa Services until January 15, 1995. She became an unclassified Cook 2, and a public servant, on March 7, 1995. Ms. Swain was a ca- shier for Versa Services until January 15, 1995. She was not rehired The employer argues that the Grievance Settlement has no jurisdiction over both the individual grievances and the union grievance. Art. 1 1, the recognition clause, recognizes OPSEU as the exclusive bargaining agent for all "public servants" Public servants are not defined in CECBA, 1993. However, they are defined in the definition section and in s. 8.1 of the PSA, as amended. It is not in dispute that the individu- al grievors had not been expressly appointed to the service of the Crown by the Lieutenant Governor in Council, the Civil Service Commission or a minister, as required by the PSA's definition of "public servant", either when they grieved or at the time of the events giving rise to the grievance. S. 8.1 (10), which provides In the absence of an express appointment of an in- dividual as a . . . public servant . . . the indivi- dual's apppointment shall not be inferred solely from the circumstances of his or her employment. precludes me from infering "solely from the circumstances of" their "employment" that the grievors are or were public ser- vants. There is no evidence of other circumstances before me from which such an inference could be made. Consequently, I cannot infer that they are or were public servants. 13 Ms. Swain was never an employee of the Crown. Ms Klip- pel became one on March 7, 1995, well after the date of her grievance I agree with the employer's submissions with respect to the import of the reasons in Gallagher, supra, wherein vice- Chair Watters concluded that absent an appointment as a pub- lic servant, the Grievance Settlement Board "lacks jurisdic- tion to entertain the complaint" of such an individual grie- vor. I agree with the reasons in Gallagher and adopt them This case presents no exceptional circumstances that might persuade me to review that decision and distinguish it: Blake (1276/87 etc.) Shime. It is regrettable to decline jurisdiction or dismiss grievances for reasons which appear to be mere technicali- ties However, this is more than a mere technicality. It is a fundamental threshold issue which must be met before this board has the authority to address individual grievances on their merits. I therefore conclude that this board does not have the jurisdiction to entertain the individual grievances of Ms Klippel and Ms. Swain. The union grievance, however, requires further consideration In Pitirri, supra, at p. 14, Vice-Chair Kaplan stated ...In some cases, a declaration alone will be a meaningful remedy, and the fact that it is the only remedy sought, or available, will not, and should not, be a bar to proceeding. He also stated Declarations are important, provided there is some live issue between the parties, or, in another example, some issue relating to the interpretation or application of the Collective Agreement. He expressed the view that in such circumstances, a declara- tion serves a purpose. He declined to take jurisdiction in Pitirri because, he indicated . . such a declaration would have no consequences or 14 practical effect for the parties, and only limited value for the grievor. Thus, where a declaration will have consequences for or a practical effect on the parties, absent other impediments, jurisdiction will be assumed. In Niagara South Bd. of Educ. and Teachers Federation (1980), 26 L.A C (2d) 332, Arbitrator Kennedy considered 3 individual grievances, for which declaratory relief, and no specific relief, was being sought At p. 336, supra, he stated four tests to consider when and whether it is approp- riate to assume jurisdiction of a grievance where the only relief sought is declaratory: 1. whether "the fact situation being considered could readily arise again and it would be use- ful for the guidance of the parties that the matter be resolved and the issue of whether or not there had existed a violation of the col- lective agreement be settled" 2 "before proceeeding" toward declaratory relief only "the board should be very sure that there exists some positive benefit to the parties in proceeding" 3. "it is appropriate to proceed where the issue has become academic to the individual grievor, only where the issue has a real potentiality of arising again, and the award can therefore be of assistance to the parties in avoiding future conflict under the collective agree- ment" 4 jurisdiction should be declined where "there was no possible value in determining an alleg- ed dispute . which cannot affect an .employ- ment relationship in the future" The union grievance indicates that the remedy sought is the rescission of the lay-off notices to bargaining unit staff and the application of t~e collective agreement. It alleges a violation of the ESA and the LRA. Although the remedy claimed in the grievance does not conform to the thrust of the dispute stated thus far in this proceeding, the remedial scope of this board is not limited by the remedies 15 claimed in the grievance and the jurisdiction of this board to resolve this difference is not necessarily limited by the precise terms of the grievance. At this point in the proceeding, the effect, if any, of the ESA or the LRA on the collective agreement, and any ensu- ing effect on the rights and entitlements of the union and the bargaining unit members remains to be seen and will only emerge from as full hearing as to what occurred wben the food services function was brought in-house, and full argument as to the applicable terms of the agreement and the effect of the various legislative provisions on those terms. Art. 27 12.1, which provides UNION GRIEVANCE Where any difference between the Employer and the union arises from the interpretation, application, administration or alleged contravention of the Agreement, the union shall be entitled to file a gr1.evance. is the contractual basis of this Board's jurisdiction to hear a union grievance. S. 7 (3 ) ( 3 ) of CECBA, 1993 was neither repealed nor amended by Bill 7 (S.O. 1995, c. 1) and remains the legisla- tive basis of the jurisdiction of the Grievance Settlement Board It provides: Every collective agreement relating to Crown em- ployees shall be deemed to provide for the final and binding settlement by arbitration by the Grie- vance Settlement Board, 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. (em- phasis added) Language similar to the above in prior legislation has been construed by the courts of this province as conferring a very broad jurisdiction upon this board. In my view the above language obliges the GSB to assume jurisdiction over all 16 disputes, in the broadest sense, a+ising from the interpreta- tion, application, administration or alleged violation of the agreement That is a general statement of this board's jurisdiction Exceptions to that general rule will be estab- lished from time to time, e g. where the factual or statutory basis of the grievance clearly fails to meet a threshold re- quirement under the collective agreement as to status of the grievor to bring an individual grievance or where, as in Pitirri, no useful purpose would be served by proceeding At this point, neither the outcome of the union grie- vance nor the remedies, if any, that might resolve the dis- pute, are predictable with any certainty Consequently, they cannot form any basis upon which to restrict access to arbitration. The language of Art. 27 12 1 describing union grievances is similar to the broad language in s. 7 (3 ) ( 3 ) of CECBA, 1993, as amended As well, the provisions of the collective agreement contain no express limitation on the union's right to bring a union grievance. I therefore conclude that the statute and the agree~ent impose no limits on the union's right to advance its grievance. The fact that the rights of the individual grievors are lined up behind and may be determined by the outcome of the union's grievance and may benefit the individual grievors is incidental and tangential to the issue of whether this board has jurisdiction As such, it does not impact upon this board's jurisdiction to hear and determine the union grievance. Under the LRA and CECBA, 1993, as amended, GSB srbitra- tors have the power "to interpret and apply the requirements of employment-related statutes, despite any conflict between those requirements and the terms of the collective agreement" This power from time to time necessarily confers 17 upon arbitrators and boards of arbitration concurrent or to some extent overlapping jurisdiction with that of adjudica- tors under various employment-related statutes. The appear- ance to one party or the other that one legislated forum might be more appropriate than another is not a relevant factor in determining whether this board has jurisdiction. At this stage in this proceeding, and on the facts as presented to me to date, it wo~ld be premature for this board to determine that there will be no distinction between the remedy sought by the individual grievors and the remedy sought by the union, and it would therefore also be premature to conclude, on the assumption that there is no distinction between the remedies sought, that no useful purpose would be served by proceeding with the union grievance. It is useful to consider the text of some of the pro- visions in Part XIII.2 of the ESA which were in effect at the time this dispute arose: 56.4 (1) This Part applies if one employer ceases to provide particular services at a premises after the 4th day of June, 1992 and another employer be- gins to provide substantially similar services at the premises. 56.6 (1) If a successor employer replaces a previ- ous employer who is providing services at the pre- mises, the successor employer shall make reasonable offers of available positions to those persons, (a) who are in a continuing or a recurring and cyclical employment relationship with the previous employer immediately before the successor employer begins providing the services at the premises; and (b) whose principal place of work with the previous employer is the premises affec- ted by the change in the employer provid- ing the services. (2) The successor employer shall make offers to the persons employed by the previous employer in descending order of each person's seniority with 18 the previous employer until all positions are filled . . (4 ) The successor employer shall use every reasonable effort to fill all positions at the pre- mises with persons who were employed by the previ- ous employer before the successor employer offers a position to any other person. (5) The position offered must consist of per- forming, at the same premises, the same work that the person did for the previous employer, if such a position is available (6) If such a position is not available, the position offered must consist of alternative work that is comparable having regard to compensation, hours and schedule of work, perquisites, quality of working environment, degree of responsibility, job security and possibility of advancement 56 7 ( 1 ) For the purposes of Parts VII, VIII, XI and XIV, a person employed by the previous employer who accepts a position offered by the successor employer is deemed to have been employed by the successor employer for the period during which he or she was employed by any previous employers. ( 2 ) In subsection (1), "previous employers" includes only the employer who employs the employee on the 4th day of June, 1992 and any successor employers who employ him or her before the succes- sor employer referred to in subsection (1) 56.8 ( 1 ) A person who declines a position offered by the successor employer under section 56.6 and who ceases to be employed by the previous employer is deemed, for the purposes of this Act, to have resigned his or her position with the previous employer. (2 ) If the successor employer offers the per- son employment that does not begin immediately af- ter his or her employment with the previous employ- er ends and the person declines the offer, the per- son is not deemed to have resigned his or her em- ployment with the previous employer and the succes- sor employer shall comply with Part XIV Bill 7, supra, received Royal Assent on November 10, 1995. S. 73 of Bill 7 repealed Section XIII.2 of the ESA. 19 Thus the provisions of concern to the union are no longer in effect However short-lived the legislation, those provi- sions may have had an impact on the obligations of the em- ployer under the collective agreement at the time the provi- sions were in force, and on the subsequent rights of the members of the bargaining unit The impact of the provisions on relative seniority and other rights of bargaining unit members may remain despite the repeal of Section XIII.2. In my view, the above provisions of the ESA make very apparent the nexus or connection between the ESA and the pro- visions of the collective agreement It is evident that if the above provisions apply to this employer as a successor employer, they will impact upon, among other things, the relative seniority of members of the bargaining unit who have not been employed by "previous employers" within the meaning of the ESA and upon Art 24 and 25 displacement and other rights, which are posited upon relative seniority The ESA provisions may also impact upon the rights of bargaining unit members returning from various leaves and may override the obligation in Art. 4 regarding posting of classified posi- tions as well as the right of bargaining unit members to com- pete for such positions The parties negotiated these provi- sions/benefits through the collective bargaining process The union's interest in -seeking an adjudication as to the proper interpretation and application of statutory provisions which may affect the negotiated benefits in the collective agreement is honest and legitimate The union grievance does not appear to have been brought for the sole purpose of "sav- ing" the individual grievances, but rather, appears to have been brought for the benefit of the bargaining unit as a whole, to ensure that to the extent that the provisions of the ESA modified the entitlements of members of the bargain- ing unit under the collective agreement, the modifications were done in accordance with the legislation. 20 In view of the foregoing, the union grievance appears to be a "true policy grievance" within Arbitrator Burkett's de- finition in St Joseph's, supra, (infra, p. 11) Using the tests stated in Niagara South, supra, I con- clude that "it would be useful for the guidance of the par- ties that the matter [in this case, the union grievance] be resolved and the issue of whether or not there had .existed a violation of the collective agreement be settled", and al- though declaratory relief mayor may not be the only relief available, I am "very sure that there exists some positive benefit to the parties in proceeding" and that "an award can . . be of assistance to the parties in avoidLng future con- flict" . The union is seeking an interpretation of the effect of the ESA and the LRA on the rights of the bargaining unit members under the collective agreement, and a determination as to whether they were properly applied This will likely provide a positive benefit to the employer, the union and its membership which is not purely academic, notwithstanding the repeal of Section XIII.2. For all the foregoing reasons, the Grievance Settlement Board can and should hear and determine the union grievance. Accordingly, the individual grievances are dismissed and the union grievance will proceed before me on the dates agreed to by the parties. Dated at Toronto this 26th day of February, 19~ ----/ ~ / ~-\ d/<~ ./ -Chair