Loading...
HomeMy WebLinkAbout2000-1495.Union Grievance.04-06-23 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2000-1495 2000-1569 2000-1609 2000-1614 2001-0376 UNION#0IU008 01U017 0IU013 01U014 01F446 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION DavId Wnght Counsel Ryder Wnght Blair & Doyle FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING May 31 2004 2 DeCISIon These gnevances concernIng pensIOns anse out of the transfer of psychIatnc facIlItIes from the provIncIal government to hospItals In the broader publIc sector ThIS Intenm decIsIOn deals wIth three matters (1) the meamng of artIcle 2 1 of AppendIx 18 to the collectIve agreement; (2) whether artIcle 3 3(6) of the OPSEU PensIOn Plan was Incorporated Into the collectIve agreement at the relevant tIme so as to confer upon thIS board JunsdIctIOn to Interpret the plan, and (3) If there was such an InCorporatIOn, the meamng of artIcle 3 3(6) of the pensIOn plan. The gnevances Involve psychIatnc facIlItIes formerly operated by the Mimstry of Health at four locatIOns, but the current dIspute concerns only the InstItutIOns In London/St Thomas and BrockvIlle They were transferred to St. Joseph's Health Centre In London and the Royal Ottawa Health Care Group respectIvely The dIspute Involves all employees who were formerly employed by the proVInce and represented by the umon at these sItes, except nurses In BrockvIlle who now have a dIfferent bargaInIng agent. When psychIatnc facIlItIes were operated by the Mimstry employees there were represented by the umon and were members of the OPSEU PenSIOn Plan. SInce becomIng employees of the reCeIVIng hospItals, they have been covered by the HospItals of Ontano PenSIOn Plan. The umon contends the Crown, when negotIatIng transfer agreements wIth the reCeIVIng hospItals, vIOlated the collectIve agreement by not makIng sufficIent efforts to persuade them to leave transferred employees In the OPSEU PenSIOn Plan, pendIng a determInatIOn as to whIch bargaInIng agent would represent them and, for those who contInued to be represented by OPSEU untIl the umon had an opportumty to negotIate WIth the reCeIVIng hospItals The employer contends ItS was not oblIged to make any such efforts The umon ongInally alleged not only a breach of artIcle 3 3(6) of the OPSEU PensIOn Plan and artIcle 2 1 of AppendIx 18-the provIsIOns now under consIderatIOn-but also a contraventIOn of artIcle 6 of AppendIx 18 In a decIsIOn dated January 24 2002 I dIsmIssed the allegatIOn relatIng to artIcle 6 as untImely 3 I ArtIcle 2 1 of AppendIx 18 states Pursuant to paragraph 40 of the SponsorshIp Agreement between OPSEU and Ontano dated Apnl 18 1994 OPSEU and the Crown agree to amend the OPSEU PenSIOn Plan to provIde for contInued membershIp In the Plan of former publIc servants for employment wIth an employer ("Employer") who IS not the Crown or a Crown agency In the folloWIng CIrcumstances (a) The member of the OPSEU PenSIOn Plan was a former publIc servant In one of the SIX publIc servIce bargaInIng umts represented by OPSEU under the Crown Employees Collective Bargaining Act, 1993 ImmedIately pnor to termInatIng hIS or her publIc servIce employment, (b) The Plan member was employed at a psychIatnc hospItal operated by the Mimstry of Health or employed In the Property Assessment DIvIsIOn of the Mimstry of FInance ImmedIately pnor to termInatIng hIS or her publIc servIce employment, (c) The operatIOns of a psychIatnc hospItal or the Property Assessment DIvIsIOn are transferred from the Crown to a reCeIVIng employer (d) The eXIt of the Plan member from the OPS occurred as the result of the transfer of operatIOns, (e) The reCeIVIng employer employs the member In the provIsIOn of those transferred operatIOns, (0 The reCeIVIng employer agrees, pnor to sIgmng a first collectIve agreement WIth OPSEU after the transfer to become a PartIcIpatIng Employer In the Plan In respect of some or all of the class of members to whIch subparagraph (e) applIes, (g) The former publIc servant does not become a member of a bargaInIng umt whIch IS covered by another penSIOn plan/retIrement arrangement, and, (h) The former cIvIl servant's posItIOn IS not subsequently transferred to another employer that IS not the Crown. Umon counsel contends the only way "to gIve substance" to paragraph (0 IS to read It as requmng the Crown to use reasonable efforts to persuade a reCeIVIng hospItal to leave employees In the OPSEU PenSIOn Plan untIl the questIOn of whether the umon wIll contInue to represent them has been resolved. Employer counsel submIts the Crown's only oblIgatIOn under artIcle 2 1 IS to amend the penSIOn plan In the manner descnbed. 4 I am persuaded by the employer's argument. The opemng words of artIcle 2 1 record an agreement between the partIes to amend the penSIOn plan to allow contInued partIcIpatIOn by former crown employees In certaIn CIrcumstances Paragraph (f) does no more than descnbe one of those CIrcumstances The wordIng of that paragraph does not expressly place any oblIgatIOn on the employer In ItS dealIngs wIth reCeIVIng hospItals No such oblIgatIOn need to be ImplIed to gIve real meamng to the precedIng undertakIng to amend the penSIOn plan. In short, artIcle 2 1 does not regulate the employer's dealIngs wIth reCeIVIng hospItals What the employer IS oblIged to do In that context IS specIfied In artIcle 6 0 of AppendIx 18 II The partIes agree the JunsdIctIOn of thIS board to Interpret and apply the OPSEU PenSIOn Plan depends upon whether It was Incorporated by the collectIve agreement at the relevant tIme The relatIOnshIp between these two documents was consIdered by the courts In response to an applIcatIOn by the umon, agaInst the Crown and the Royal Ottawa Health Care Group prompted by the then ImpendIng transfer of the BrockvIlle InstItutIOn, one of the very transfers Involved In the case at hand. In thIS applIcatIOn, dated October 23 2000 the umon relIed upon "the reasonable effort provIsIOns" In AppendIx 9 and AppendIx 18 to the collectIve agreement as well as artIcle 33(6) of the pensIOn plan. (See paragraphs 12,14 and 24) The posItIOn then taken by the employer IS recorded In the Judgement of Madame JustIce KIteley dated November 28 2000 where she notes the employer argued "thIS matter ought not to be entertaIned by the court because the dIspute, vIewed wIth an eye to ItS essentIal character anses from the collectIve agreement and the exclusIve JunsdIctIOn lay wIth the labour tribunal" (paragraph 62) Madame JustIce KIteley reJected thIS argument and made a findIng of "probable Irreparable harm" In favour of the umon. She Issued an Intenm declaratIOn agaInst the employer and an Intenm InJunctIOn agaInst the Royal Ottawa Health Care Group Both of these partIes appealed her rulIng. The decIsIOn of the DIvIsIOnal Court, reported as Ontario Public Service Employees Union and Royal Ottffit,a Health Care Group [2002] 0 J No 446 was delIvered orally by two members of the bench and later reduced to wntIng. SpeakIng first, Mr JustIce O'Leary quashed the Intenm remedIes granted below because there was no basIs for a findIng of probable Irreparable harm As to the maIn applIcatIOn, he noted the JunsdIctIOnalIssue of whether the OPSEU PenSIOn Plan was Incorporated Into the collectIve agreement, saYIng 5 17 But there IS another Issue we must address, namely whether the court has the JunsdIctIOn to entertaIn the maIn applIcatIOn for If the court IS wIthout JunsdIctIOn, not Just the Intenm InJunctIOn must fall, but the maIn applIcatIOn as well 18 The appellants argue that the maIn applIcatIOn IS sImply a dIspute ansIng out of a collectIve agreement and so the court IS wIthout JunsdIctIOn to deal wIth the maIn applIcatIOn and lIkewIse wIth the request for an Intenm InJunctIOn. OPSEU argues that, the OPSEU PenSIOn Plan IS not part of the collectIve agreement and so any Issue over a breach of ItS terms may be brought to the court. 19 We deal firstly wIth the OPSEU PenSIOn Plan on the basIs that It IS dIStInct from the collectIve agreement. OPSEU says that the Crown dId not make ItS best effort to have Royal Ottawa adopt the OPSEU PenSIOn Plan, relYIng on sub-paragraph 3 3(6) of the Plan. [The court then quoted thIS sub-paragraph and dIscussed ItS meamng. ThIS portIOn of the Judgement IS reproduced below] 21 But IS the OPSEU penSIOn plan dIStInct from the collectIve agreement? HavIng flagged the questIOn of whether the penSIOn plan was Incorporated by the collectIve agreement, Mr JustIce O'Leary left thIS questIOn unanswered. The answer IS found In the ImmedIately folloWIng comments ofMr JustIce Cosgrove who said 22 Ms Ursel argued that, the O.P T IS not Incorporated Into the collectIve agreement and therefore not subJect to arbItratIOn. 23 We do not agree wIth thIS submIssIOn. In our VIew the O.P T IS Incorporated and closely Integrated wIth the collectIve agreement for the folloWIng reasons 1 In AppendIx 11 to the collectIve agreement the employer agrees to be bound by the O.P T and to negotIate any changes to It. 2 AppendIx 18 to the collectIve agreement Introduces amendments to the O.P T respectIng penSIOns 3 AppendIx 9 to the collectIve agreement, paragraphs 2(a) and (b) and 4 Introduce amendments to the O.P T by relatIng provIsIOns of the agreement, specIfically ArtIcles 53 and 78 to the O.P T relevant provIsIOns 4 The foregoIng amendments to the O.P T Incorporated by way of AppendIx to the agreement are referenced and cross-coordInated In subsequent amendment No 6 to the O.P T through the folloWIng Introductory paragraph "And whereas Ontano and OPSEU have entered Into a CollectIve Agreement on March 27 1999 whIch reqUIres that the OPSEU PenSIOn Plan be amended " 6 24 In our VIew the InCorporatIOn by reference of the O.P T In the collectIve agreement and the dIspute between the partIes whIch forms the subJect of the decIsIOn under appeal (KIteley J 's decIsIOn of November 28) connected thereto are Issues ansIng from the applIcatIOn and admInIstratIOn of the collectIve agreement between the partIes and are subJect to bIndIng arbItratIOn, pursuant to subsectIOn 7(3) of the Crown Employees CollectIve BargaInIng Act, 1993 25 The words of the Supreme Court in Weber v Ontario Hydro (1995) 125 D.L.R. (4th) 583 at pages 603 and 604 In our VIew govern the sItuatIOn gIVIng nse to the dIspute hereIn [54] [D]Isputes whIch expressly or InferentIally anse out of the collectIve agreement are foreclosed to the courts [58] To summanze, the exclusIve JunsdIctIOn model gIves full credIt to the language of s 45(1) of the Labour RelatIOns Act. It accords wIth thIS court's approach In St. Anne-NackawIc It satIsfies the concern that the dIspute resolutIOn process whIch the vanous labour statutes of thIS country have establIshed should not be duplIcated and undermIned by concurrent actIOns It conforms to a pattern of groWIng JudIcIal deference for the arbItratIOn and gnevance process and correlatIve restnctIOns on the nghts of partIes to proceed wIth parallel or overlappIng lItIgatIOn In the courts 26 How can It be maIntaIned In the face of the documented agreements that the Issue of the alleged breach of duty of best efforts or reasonable efforts, whether as a breach of contract or of a fiducIary responsIbIlIty do not eIther expressly or InferentIally anse out of the collectIve agreement between the partIes WIth the attendant complIcatIOns? 27 Moreover we are of the VIew that the Issues raised by KIteley J In paragraphs [62] [63] and [64] or her decIsIOn are InSUfficIent reasons to remove the dIspute Issue from arbItratIOn, especIally In lIght of examples of resolutIOn/dIspute arbItratIOn offered by Mr FilIon at Tabs 4 5 and 6 of hIS Book of AuthontIes In argument, whIch In essence deal wIth the exact Issues (breach of best efforts or undertakIngs by the employer) In sItuatIOns InvolVIng or affectIng thIrd party consIderatIOns In our VIew these decIsIOns amply demonstrate that the Gnevance Settlement Board has the expertIse and has been able fairly and competently to address Issues comparable to those In dIspute at bar These comments are the only ones delIvered by the court on the matter of IncorporatIOn and they are the sole basIs for the court refusIng to entertaIn the umon' s arguments based upon artIcle 3 3(6) of the pensIOn plan. Mr JustIce O'Leary then spoke agaIn, addressIng first the "reasonable efforts" provIsIOns found In appendIces to the collectIve agreement and then two labour adJustment agreements As to the appendIces to the collectIve agreement, he said 7 29 So far as the complaInt based on AppendIx 9 and AppendIx 18 of the collectIve agreement IS concerned, such must be dealt wIth by the arbItratIOn process contaIned In the collectIve agreement. [The court quoted from these two appendIces] 32 As to whether the Crown has fulfilled ItS oblIgatIOns under the above mentIOned provIsIOns of AppendIx 9 and AppendIx 18 IS somethIng that can be and must be decIded by an arbItrator 33 We reJect the argument that the arbItrator would not be able to take Into account the role that Royal Ottawa played In the decIsIOn not to adopt the OPSEU penSIOn plan. Witnesses from Royal Ottawa could be called to testIfy and to the extent that the arbItrator decIded the Crown was entenng Into a transfer that breached any fiducIary or other duty that the Crown or Royal Ottawa owed or would owe to the BPH employees, the arbItrator could have stayed the transfer to Royal Ottawa untIl such was corrected. TurnIng to the two labour adJustment agreements, bIndIng on both the Crown and the Royal Ottawa Health Care Group he went on to say 35 Further OPSEU could have sought arbItratIOn under the Labour AdJustment Agreements If It felt the Crown or Royal Ottawa or both had broken theIr oblIgatIOns under eIther Agreement. [The court quoted provIsIOns from these two agreements relatIng to pensIOns] 40 WhIle one mIght wonder how OPSEU could agree In the Labour AdJustment Agreements that "for servIce after transfer the PenSIOn Plan of the reCeIVIng employer/hospItal wIll be the operatIve plan" and then after the transfer takes place, allege that Royal Ottawa, by selectIng HOOPP whIch had been ItS plan for years, was In breach of ItS fiducIary duty towards the BPH employees Nevertheless, the Important fact IS that OPSEU must take the allegatIOn to arbItratIOn, not to the court. 41 Just because a party IS bound by a collectIve agreement and two contracts that reqUIre any dIspute to be resolved by arbItratIOn does not mean that the court becomes the proper forum to resolve the dIspute common to both the collectIve agreement and those contracts, sImply to aVOId the party havIng to go through several arbItratIOn processes 42 We conclude that OPSEU IS bound by the collectIve agreement and the two Labour AdJustments Agreements to take to arbItratIOn the Issues It raises In the applIcatIOn brought to the court, namely whether the Crown or Royal Ottawa has faIled In theIr oblIgatIOns to the employees represented by OPSEU and In partIcular whether they have faIled to fulfill any fiducIary dutIes owed to those employees ThIS means the court IS wIthout JunsdIctIOn In thIS matter and so not only IS the InJunctIOn dIssolved, but the applIcatIOn Itself IS dIsmIssed. Madame JustIce Dunnet concurred In the comments made by each of her fellow Judges It IS Important to note that the comments ofMr JustIce O'Leary deal wIth dIfferent matters than those addressed by Mr JustIce Cosgrove 8 For example, only the former dealt wIth the two appendIces to the collectIve agreement and only the latter wIth the IncorporatIOn of the penSIOn plan Into the agreement. NeIther of them dIsagreed wIth anythIng said by the other As noted by umon counsel, each of them made rulIngs USIng the plural pronoun "we" wIthout any lImItatIOn. These observatIOns lead me to conclude the court rendered a unammous Judgement on all Issues, wIth Mr JustIce O'Leary speakIng to some and Mr JustIce Cosgrove to the rest. ThIS explaIns why the former ended hIS ImtIaI remarks by pOSIng the IncorporatIOn questIOn and then left It to be answered by the latter On thIS readIng of the decIsIOn, Mr JustIce Cosgrove's rulIng, that the OPSEU PenSIOn Plan was Incorporated by the collectIve agreement, IS the unammous holdIng of the court. At a mImmum, he IS JOIned In thIS rulIng by Madame JustIce Dunnet and the two of them constItute a maJonty on thIS pOInt. III Counsel for the umon contends the employer IS barred from relItIgatIng the Issue of whether the OPSEU PenSIOn Plan IS Incorporated by the collectIve agreement, because the matter already has been decIded by the DIvIsIOnal Court. ThIS bar IS Said to anse from the law relatIng to Issue estoppel and abuse of process as recounted by the Supreme Court of Canada In City of Toronto and Canadian Union of Public Employees [2003] S C C 63 SpeakIng for the maJonty In that case, Madame JustIce Arbour lIsted the three elements reqUIred for the successful InVOcatIOn of Issue estoppel Issue estoppel IS a branch of res judicata (the other branch beIng cause of actIOn estoppel) whIch precludes the relItIgatIOn of Issues prevIOusly decIded In court In another proceedIng. For Issue estoppel to be successfully Invoked, three precondItIOns must be met (1) the Issue must be the same as the one decIded In the pnor decIsIOn, (2) the pnor JudIcIal decIsIOn must have been final and (3) the partIes to both proceedIngs must be the same, or theIr pnvIes (pages 94 and 95) Here the Issue relatIng to the IncorporatIOn of the OPSEU PenSIOn Plan Into the collectIve agreement IS a questIOn decIded by the DIvIsIOnal Court, the court's decIsIOn became final when It was not appealed and both of the partIes before thIS board were also partIes to the court proceedIng. In other words, the three pre-condItIOns lIsted by the Supreme Court In City of Toronto are met In the Instant case The employer relIes upon the decIsIOn In OPSEU and Ministry of Community Family and Children s Services (Ashley) decIsIOn dated November 5 2003 GSB No 2001-1700 (Abramsky) In that case, havIng ruled the collectIve agreement dId not Incorporate the OPSEU PenSIOn Plan, 9 thIS board held It had no JunsdIctIOn to entertaIn a gnevance concermng the employer's faIlure to Inform employees about 'theIr opportumty to "buy-back" servIce for whIch no pensIOn contnbutIOns had been made dunng the 1989-91 "buy-back" WIndow' (page 1 ) The facts In that case are readIly dIstIngUIshable from those at hand as they relate to the matter of InCorporatIOn. Vice-Chair Abramsky was dealIng wIth a claim about a penod whIch predates the addItIOn to the collectIve agreement of the three appendIces-9 11 and 18-upon whIch the DIvIsIOnal Court relIed In concludIng the agreement Incorporated the penSIOn plan. UnlIke her I am faced wIth the same penod as the court consIdered and wIth two transfers made dunng that penod, IncludIng the very one contested before the court. Vice-Chair Abramsky had good reason not to apply the DIvIsIOnal Court's decISIOn, because It was based upon appendIces added to the collectIve agreement after the events gIVIng nse to the gnevance before her AccordIngly she was not reqUIred to comment on the court's rulIng. Nonetheless, she wrote Although there IS language In the oral decIsIOn of JustIce Cosgrove to that effect [i e that the OPSEU PenSIOn Plan was Incorporated In the collectIve agreement] the decIsIOn of JustIce O'Leary appears to be more lImIted. The broader pronouncement of JustIce Cosgrove IS, In my VIew dIcta. (Page 10 and 11) I respectfully dIsagree wIth the charactenzatIOn of thIS pronouncement as dicta The court's dIsmIssal of the maIn applIcatIOn turned In part upon ItS conclusIOn that the collectIve agreement Incorporated artIcle 3 3(6) of the OPSEU PensIOn Plan. ThIS conclusIOn was the reason why the Judges declIned to entertaIn the umon' s argument based upon the plan. In other words, the pronouncement IS not obiter dicta because It IS central to the court's dIsmIssal of the umon's applIcatIOn on JunsdIctIOnal grounds SInce the transfer of the two psychIatnc hospItals In questIOn, the collectIve agreement has been amended by the addItIOn of AppendIx 20 statIng the penSIOn plan does not form part of the agreement. ThIS amendment cannot alter the conclusIOn reached by the DIvIsIOnal Court about the state of affairs when the dIsputed transfer agreements were negotIated. The foregoIng analysIs leads me to conclude the employer IS estopped from relItIgatIng the questIOn of whether the collectIve agreement Incorporated artIcle 3 3(6) of the pensIOn plan at the relevant tIme ThIS board IS bound by the court's affirmatIve answer to that questIOn. (I make no determInatIOn as to whether the collectIve agreement Incorporated provIsIOns In the penSIOn plan other than artIcle 3 3(6) whIch was the only provIsIOn In play before the court.) 10 HavIng ruled In the umon' s favour In relatIOn to Issue estoppel, I need not address the alternatIve argument about abuse of process Employer counsel submIts the exclusIve forum for any dIsputes ansIng out of the pensIOn plan IS arbItratIOn under the artIcle 65 of the SponsorshIp Agreement, dated Apnl18 1994 under whIch the plan was created. As applIed to the current dIspute, thIS argument flIes In the face of the DIvIsIOnal Court's decIsIOn. The court's rulIng, that artIcle 3 3(6) of the OPSEU PensIOn Plan IS Incorporated Into the collectIve agreement, means thIS board has JunsdIctIOn to Interpret and apply thIS artIcle, Just as It has JunsdIctIOn to Interpret and apply any provIsIOn In the agreement. Counsel for the employer also submIts the DIvIsIOnal Court ruled "OPSEU was bound by the Labour AdJustment Agreements to take to arbItratIOn [under those agreements] the Issues presently before the GSB " The court's comment on thIS matter are found at paragraph 35 of the Judgement and reproduced above The court said dIsputes ansIng under the labour adJustment agreements could be submItted to the arbItratIOn process created by them. ThIS comment has no applIcatIOn to the Instant dIspute whIch anses under artIcle 3 3(6) of the pensIOn plan, not under the labour adJustment agreements IV I now turn to the InterpretatIOn of artIcle 3 3(6) of the OPSEU PensIOn Plan whIch states DespIte subsectIOn (1), In the event that OPSEU has bargaInIng nghts wIth respect to employees of an orgamzatIOn that IS not a Crown Agency and such orgamzatIOn IS a successor employer to the Crown or a Crown Agency wIthIn the meamng of the Labour Relations Act, as modIfied by sectIOn 10 of the CroJ1,n Employees Collective Bargaining Act, 1993 and the employees were members of the Plan ImmedIately pnor to theIr transfer to the successor employer and the transfer to the successor employer occurred on or after January 1 1995 OPSEU may notIfy the Crown that the employees In the bargaInIng umt shall contInue as members of the OPSEU Plan untIl the expIry of the CollectIve Agreement whIch governed such employees as employees of the Crown or Crown Agency or the SubstItutIOn of a new CollectIve Agreement between the successor employer and OPSEU whIchever occurs first, and a) the Crown shall use ItS best effort to have the successor employer execute a partIcIpatIOn agreement In a form set by the Board for a penod whIch shall termInate on the expIry or SubstItutIOn of the CollectIve Agreement or on the date whIch IS agreed to by OPSEU and the successor employer whIchever occurs first (emphasIs added) The umon and employer take dIffenng VIews as to precIsely whIch statutory provIsIOns are referenced In thIS artIcle 11 The umon contends the reference IS to the legIslatIOn In force at the tIme artIcle 3 3(6) was added to the penSIOn plan, whereas the employer submIts the reference IS to the legIslatIOn as It stood at the tIme of the alleged vIOlatIOn gIVIng nse to the gnevance When artIcle 3 3(6) came Into beIng, the provIsIOns In the Labour Relations Act relatIng to the "sale of a busIness" were adopted by the Crown Employees Collective Bargaining Act, 1993 wIth only mInor modIficatIOns not here relevant. However by the tIme the transfer agreements relatIng to psychIatnc hospItals were negotIated, the Crown Employees Collective Bargaining Act had been amended to render these provIsIOns In the Labour Relations Act InapplIcable to crown transfers With thIS backdrop In mInd, the partIes agree the reCeIVIng hospItals would be successor employers wIthIn the meamng of the old legIslatIOn but not the new As to the proper InterpretatIOn of the statutory reference In artIcle 3 3(6), umon counsel relIes upon the decIsIOn In Bulk Carriers Ltd and General Truck Drivers Union (1973) 2 L.A.C (2d) 413 (Egan) The collectIve agreement In that case was sIgned In June of 1971 remaIned In force untIl October of 1974 and contaIned the folloWIng artIcles 26 The hours of work and overtIme condItIOns shall be In accordance wIth the Canada Labour Standards Code 71 1 In the event oflegIslatIOn beIng enacted subsequent to the sIgmng of thIS Agreement, InvalIdatIng the applIcatIOn of any ArtIcle of AppendIx hereto the relatIve sectIOn only on thIS Agreement shall be nullIfied. When new regulatIOns under the Code came Into effect In January of 1973 the partIes dIsagreed as to whether these amendments became part of theIr agreement. EmbracIng a statIc readIng of artIcle 26 the maJonty of the board held It IS plaIn to us that, gIven theIr plaIn and ordInary meamng, the words of art. 26 can only be Interpreted as IndIcatIve of the Intent of the partIes to embody Into the collectIve agreement the Code and ItS regulatIOns as they stood at the date the agreement was made It IS ObVIOUS that In order to provIde for the InclUSIOn of such amendments or alteratIOns to the regulatIOns as mIght be occur from tIme to tIme In the future, appropnate addItIOnal language would be reqUIred and could have been used by the partIes If such had been theIr Intent. To repeat then, we find that art. 26 Imports Into the collectIve agreement the regulatIOns only as they stood at June 22, 1971 and not as they mIght become (Page 415) HavIng determIned artIcle 26 dId not Incorporate any changes to the regulatIOns, the maJonty went on to rule artIcle 71 1 nullIfied artIcle 26 as soon as the new regulatIOns came Into force allowIng them to prevaIl In other words, the maJonty adopted a statIc InterpretatIOn of a 12 legIslatIve reference In one artIcle, then applIed another artIcle to VOId the first, and arnved at a dynamIc result In the end. DId those who drafted artIcle 3 3(6) of the pensIOn plan Intend the ImplementatIOn of thIS artIcle to reflect the legIslatIve backdrop eXIstIng when It was created, even If the cIted statutes changed, or was theIr IntentIOn to have any subsequent changes In legIslatIOn reflected In the way the artIcle would be Implemented? In my VIew the answer to thIS questIOn IS found In the wordIng of artIcle 3 3(6) Two thIngs should be noted about the language used. The opemng words make the eXIstence of any oblIgatIOn on the Crown contIngent upon the eXIstence of the folloWIng CIrcumstances "OPSEU has bargaInIng nghts wIth respect to employees of an orgamzatIOn that IS a successor to the Crown and the employees were members of the Plan ImmedIately pnor to theIr transfer to the successor employer " In other words, the oblIgatIOn IS contIngent, not only upon the there beIng a successor employer but also upon OPSEU havIng bargaInIng nghts for transferrIng employees as part of the successor's workforce In addItIOn, artIcle 3 3(6) defines the term of the partIcIpatIOn agreement based upon the assumptIOn that the successor employer would be bound by the collectIve agreement "whIch governed such employees as employees of the Crown." In these two ways, artIcle 3 3(6) was bUIlt upon the potentIal legal consequences of beIng a successor to the Crown under the old legal regIme When a crown enterpnse was transferred, the successor employer stood to Inhent from ItS predecessor both the bargaInIng agent representIng the workforce and the collectIve agreement In force There IS no such Inhentance under the new legal regIme The transfer of psychIatnc facIlItIes dId not subJ ect the reCeIVIng hospItals to any bargaInIng nghts held by OPSEU In relatIOn to transfernng employees Moreover the hospItals were not bound by the collectIve agreement OPSEU negotIated wIth the Crown. The manner In whIch the employer's oblIgatIOn under artIcle 3 3(6) IS tIed to the old statutory regIme leads me to conclude that oblIgatIOn ceased to eXIst when the Crown Employee s Collective Bargaining Act, 1993 was amended to exclude crown transfers from the provIsIOns In the Labour Relations Act relatIng to the sale of a busIness I dIgress to note thIS constructIOn of artIcle 3 3(6) accords wIth the comments made about It by Mr JustIce O'Leary 20 It IS ObVIOUS that the oblIgatIOn on the Crown to use ItS best effort to have a successor employer execute a partIcIpatIOn agreement IS predIcated on there beIng such a thIng as a successor employer WhIle such eXIsted at one tIme, It no longer eXIsts because the successor nghts provIsIOns have been removed from both the Labour RelatIOns Act and the Crown Employees CollectIve BargaInIng Act, 1993 13 21 Therefore, there IS no remaInIng oblIgatIOn under sub-paragraph 3 3 (6) and no longer any basIs for bnngIng to the court an argument based on that sub-paragraph. These remarks relate to a matter over whIch at least a maJonty of the court subsequently ruled It had no JunsdIctIOn-I e the meamng of a provIsIOn Incorporated Into a collectIve agreement. ThIS board IS not bound by the DIvIsIOnal Court's InterpretatIOn, because It was made wIthout JunsdIctIOn, but the court's comments buttress my confidence In the InterpretatIOn at whIch I have arnved Independently V In summary I have concluded 1 ArtIcle 2 1 dId not Impose any oblIgatIOn on the employer In ItS dealIngs wIth the reCeIVIng hospItals 2 ThIS board IS bound by the DIvIsIOnal Court's decIsIOn that artIcle 3 3(6) of the OPSEU PensIOn Plan IS Incorporated Into the collectIve agreement; and 3 ArtIcle 3 3(6) does not apply to the dIsputed transfers of psychIatnc hospItals Dated at Toronto thIS 23rd day of June 2004 b~ Richard Brown Vice Chair