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HomeMy WebLinkAbout2003-2754.Union Grievance.04-08-23 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# 2003-2754 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell BarrIsters and SOlICItorS FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING July 12, 2004 2 DeCISIon AMAPCEO gneves the exclusIOn from ItS bargaInIng UnIt of a posItIOn called admInIstratIve servIces manager and located In the customer relatIOns branch The employer contends the person holdIng thIS Job exerCIses managenal functIOns or IS employed In a confidentIal capacIty relatIng to labour relatIOns, wItlun the meanIng of the Crown Employees Collectlve Bargaznzng Act (CECBA) ThIS decIsIOn deals exclusIvely wIth the employer's prelImInary motIon contendIng eIther thIS board lacks JunsdIctIOn to detennIne whether the posItIOn IS properly excluded or, In the alternatIve, tlus board should defer to the Ontano Labour RelatIOns Board (OLRB) In relatIOn to thIS matter The gnevance IS dated October 14,2003 In a reply dated November 4, the employer "reserved the nght" to argue the matter should be heard by the OLRB The employer made applIcatIOn to that board on Apnl2, 2004, approxImately four weeks before the first day scheduled for heanng before thIS board ProceedIngs before the OLRB had not yet begun when argument was heard on July 12 I The employer relIes upon decIsIOns of tlus board, dealIng wIth JunsdIctIOnal obJectIOns and deferral requests, In a senes of cases InvolvIng a questIOn of employee status These cases were decIded agaInst the backdrop of two court cases The first IS Canadzan Industrzes Ltd. and Internatzonal Unzon of Allled and Technzcal Workers, [1972] 3 O.R. 63 (C.A.), where a board of arbItratIOn had purported to determIne whether the collectIve agreement between the partIes applIed to guards supplIed by a secunty company On JudIcIal revIew, the employer contended thIS matter lay wIthIn the exclusIve JunsdIctIOn of the OLRB 3 ThIS argument was based upon what was then s 95 of the Labour RelatlOns Act (LRA ) 95 (1) The Board has exclusIve JunsdIctIOn to exerCIse the powers conferred upon It by or under thIS Act and to determIne all questIOns of fact or law that anse In any matter before It, and the actIOn or decIsIOn of the Board thereon IS final and conclusIve for all purposes, but nevertheless the Board may at any tIme, If It consIders It advIsable to do so, reconsIder any decIsIOn, order, dIrectIOn, declaratIOn or rulIng made by It and vary or revoke any such decIsIOn, order, dIrectIOn, declaratIOn or nllIng (2) If In the course of bargaInIng for a collectIve agreement or dunng the penod of operatIOn of a collectIve agreement, a questIOn anses as to whether a person IS an employee or as to whether a person IS a guard, the questIOn may be referred to the Board and the decIsIOn of the Board thereon IS final and conclusIve for all purposes NotIng neIther party had referred the matter to the OLRB, the Court of Appeal sustaIned the JunsdIctIOn of the board of arbItratIOn, saYIng When the LegIslature wanted to gIve the Ontano Labour RelatIOns Board exclusIve JunsdIctIOn over a subJect-matter, It dId so In plaIn and uneqmvocallanguage Indeed, It used those very words In s-s (1) In s-s (2), on the other hand, the language used IS that the questIOns there referred to "may" -- and I emphasIze may -- "be referred to the Board" We hold that tlus language IS permISSIve and not mandatory If such a suggestIOn IS In fact referred to the Ontano Labour RelatIOns Board, ItS JunsdIctIOn would then be exclusIve by the same applIcatIOn of s- s (1) that Mr JustIce Osler gave It, but that dId not occur here NeIther party chose to refer the questIOn to the Ontano Labour RelatIOns Board. They chose to proceed by way of arbItratIOn under the collectIve agreement Had the matter been presented to the Board It would probably have been necessary for us to further construe s-s (2) of s 95 wIth respect to the phrase "final and conclusIve for all purposes" Does tlus mean "for all purposes of the Act and of any collectIve agreement" or sImply "for all purposes of the Act"? In other words, may such a findIng be confined to purposes wIthIn and anSIng under some specIfic sectIOn of the Act, makIng It necessary to stIll have an arbItratIOn as to whether a person IS an employee wIthIn the meanIng of the collectIve agreement, In whIch arbItratIOn the findIng of the Ontano Labour RelatIOns Board would be one fact, but not the only fact, relevant to the decIsIOn of the arbItrators? The decIsIOns of the 4 Ontano Labour RelatIOns Board and of vanous arbItrators would seem to IndIcate that tlus IS so We do not have to decIde tlus In the case before us because In fact, as I have already pOInted out, there was no reference to the Ontano Labour RelatIOns Board As the matter had not been referred to the OLRB, the court's suggestIOn that such a referral would depnve an arbItrator of JunsdIctIOn IS oblter dleta The other court case, Attorney General of OntarlO and OntarlO Publle Servlee Employees UnlOn (CannIng), [1986] 0 J No 237 (DIV Ct), arose In the context of CECBA, when that statute gave the now defunct Labour RelatIOns Tribunal (LR T) much the same role In the publIc sector as the OLRB played for an employer like Canadian Industnes In the pnvate sector SectIOn 40( 1) of CECBA then stated. If In the course of bargaInIng for a collectIve agreement or dunng the penod of operatIOn of a collectIve agreement, a questIOn anses as to whether a person IS an employee, the questIOn may be referred to the Trzbunal and ItS decIsIOn thereon IS final and bIndIng for all purposes ReVIeWIng a decIsIOn of thIS board, the DIvIsIOnal Court suggested the LR Thad the exclusIve JunsdIctIOn to rule on the "status" of an employee As there IS notlung In the court's Judgment to suggest the matter had been referred to the LR T , thIS suggestIOn IS at odds wIth the holdIng of the Court of Appeal In Canadzan Industrzes whIch was not cIted by the DIvIsIOnal Court There are seven reported decIsIOns of tlus board dealIng wIth questIOns of employee status In the first SIX, the board refraIned from makIng a determInatIOn of status The Issue In each was whether one or more posItIOns were excluded from the bargaInIng UnIt because of theIr "managenal" or "confidentIal" nature or because they Involved a "non-recurnng" proJect The DIvIsIOnal Court's comments In Cannzng were endorsed In two cases where thIS board held It was wIthout JunsdIctIOn OPSEU (0 'Breza) and Mlnzstry of Agrzeulture and Food, decIsIOn dated Feb, 19, 1990, GSB 1101/88 (FIsher), and OPSEU (Polley Grzevanee) and 5 Mlnzstry o.fNatural Resources, decIsIOn dated June 24, 1992, GSB No 2109/91 (Samuels) In the remaInIng four cases, the board held It had concurrent JunsdIctIOn, folloWIng the lead of the Court of Appeal In Canadzan Industrzes, but deferred to the LRT OPSEU (Lasanz) andMlnzstry o.fCommunzty and Soczal Servlces, decIsIOn dated May 15, 1987, GSB No 0147/84 (DelIsle), OPSEU (UnlOn Grzevance) and Mlnzstry of Industry, Trade and Technology, decIsIOn dated August 26,1987, GSB No 1257/86 (Barrett), OPSEU (UnlOn Grzevance) and Management Board o.fCabznet, decIsIOn dated December 5, 1988, GSB No 2086/86 (Draper), and OLBEU (Coones) and Llquor Control Board ofOntarlO, decIsIOn dated November 25, 1991, GSB No 2311/90 (Stewart) The ratIOnale for deferral was first stated by VIce-Chair Barrett In Mlnzstry of Industry, Trade and Technology When lookIng at the Crown Employees Collectlve Bargaznzng Act, as a whole one has to assume that the framers of the legIslatIOn contemplated that the questIOn of employee status would anse frequently, and accordIngly a specialIzed Tribunal should be establIshed to deal wIth that Issue on an ongoIng basIs (page 7) ThIS passage was cIted wIth approval by VIce-Chair Stewart In Coones A dIfferent approach was taken In the seventh and most recent case before tlus board InvolvIng employee status, OPSEU (Chamazllard) and Mlnzstry of Attorney General, decIsIOn dated September 21,1993, GSB No 1290/92 (Kaplan) In that case, a court reporter alleged she had been dIscharged wIthout Just cause and the employer contended she was not an employee and so had no protectIOn agaInst dIsmIssal It appears the employer vIewed the gnevor as an Independent contractor VIce-Chair Kaplan held he had JunsdIctIOn to decIde the Issue of employee status DeclInIng to defer to the LR T, he wrote In the Instant case, we find that whIle the determInatIOn of status by the Tribunal mIght end the matter by precludIng the necessIty of reVIeWIng the ments, It mIght not The Issue of status IS arguably IntertwIned wIth the ments, and It IS ImplIcated to a much greater extent than In any of the other 6 cases In whIch thIS Issue has prevIOusly been addressed A referral to the Tribunal In tlus case would constItute an unnecessary dIvIsIOn of decIsIOn- makIng, and, assumIng that the gnevor was found to be an employee, result In consIderable delay In the detennInatIOn of her gnevance and In that way defeat one of the Important purposes of arbItratIOn (page 15) All seven decIsIOns of tlus board were rendered when the LR T functIOned as a specialIzed labour relatIOns board for the publIc sector The LRT ceased to eXIst when CECBA was amended In 1993 SectIOn 2(1) of the statute now Incorporates the LRA wIth modIficatIOns not here relevant As a result of thIS IncorporatIOn, the role prevIOusly played by the LRT In matters of employee status was transferred to the OLRB The now operatIve prOVISIOn In the LRA, sectIOn 114, IS IdentIcal In all relevant respects to sectIOn 95 consIdered by the Court of Appeal In Canadzan Industrzes Counsel for the assocIatIOn contends the abolItIOn of the LR T, and the transfer of ItS role under CECBA to the OLRB, calls for a re-eXamInatIOn of thIS board's earlIer practIce of not decIdIng Issues of employee status II Employer counsel also relIes upon London Publzc Llbrary and Canadzan Unwn of Publzc Employees (1996),55 L.A.C (4th) 361 (M. PIcher) The Issue In that case, as stated by ArbItrator PIcher, was "whether a board of arbItratIOn can enforce a collectIve agreement prOVISIOn whIch would place persons InsIde a bargaInIng UnIt even though they may not be employees under the governIng labour relatIOns statute" (page 362) When the arbItratIOn heanng started, an applIcatIOn for a determInatIOn of employee status was pendIng before the OLRB ContendIng someone who was not an employee under the statute could not be part of the bargaInIng UnIt, the employer urged the board of arbItratIOn to defer to the OLRB on the matter of employee status The UnIon opposed deferral, argUIng a decIsIOn about employee status by the OLRB would have no beanng on the resolutIOn of 7 the gnevance RulIng that only employees under the statute could be members of a bargaInIng UnIt, ArbItrator PIcher adJourned the arbItratIOn pendIng a detennInatIOn by the OLRB on the questIOn of employee status, a questIOn not submItted to the board of arbItratIOn by the employer or the UnIon The Important pOInt for present purposes IS that ArbItrator PIcher was not requested by eIther party to detennIne whether the persons In dIspute were employees wIthIn the meanIng of the statute In my VIew, the absence of any request to answer thIS questIOn fully explaIns why the arbItrator declIned to address It III The aSSOCiatIOn relIes upon the practIce of the partIes over the last decade when dealIng wIth dIsputes of thIS sort In thIS regard, I was referred to the voluntary recognItIOn agreement, dated March 23, 1995, whereby the aSSOCiatIOn first acqUIred bargaInIng nghts That agreement created a mediatIOn/arbItratIOn process for resolvIng dIsagreements about the exclusIOn of thousands of posItIOns from the bargaInIng UnIt The contested posItIOns were dIvIded Into two groups known as "TIer 1" and "TIer 2" respectIvely The agreement reqUIred all dIsputes relatIng to the 1200 people In TIer 1 to be resolved before collectIve bargaInIng began, unless the partIes agreed to extend thIS deadlIne All of these matters have been resolved DIsputes about the 1600 people In TIer 2 were held In abeyance untIl a first collectIve agreement was negotIated and some of them have not yet been resolved. The lIst of posItIOns In both tIers Includes a huge number wIth tItles IncludIng the word "supervIsor", "manager", "head", "co-ordInator" or some like term, IndIcatIng that many of the dIsputes were about the exerCIse of managenal functIOns The aSSOCiatIOn also relIes upon thIS board's current role In the resolutIOn of an earlIer polIcy gnevance allegIng bargaInIng work IS beIng done across the OPS 8 by a large number of people, who would be charactenzed properly as employees of the provIncial government, but who are beIng treated as If they are not employees When that matter was referred to the board, the employer dId not questIOn Its JunsdIctIOn to determIne whether the dIsputed persons were employees and dId not suggest deferral to the OLRB IV Based upon the decIsIOn of the Court of Appeal In Canadzan Industrzes, I have no hesItatIOn In concludIng tlus board has JunsdIctIOn to detennIne an Issue of employee status whIch has not been referred to the OLRB The Court of Appeal's suggestIOn that sectIOn 95(1) of the LRA (now sectIOn 114( 1 )) meant arbItral JunsdIctIOn would be negated by a referral to the OLRB IS oblter dlcta and therefore not bIndIng on thIS board AccordIng to thIS provIsIOn, the OLRB has "exclusIve JunsdIctIOn to determIne all questIOns of fact or law that anse In any matter before It "I note the OLRB has not read tlus sectIOn to mean an applIcatIOn to that board lImIts the JunsdIctIOn of arbItrators Indeed, when faced wIth an Issue relatIng to a matter governed by both the statute and a collectIve agreement, the OLRB often defers to arbItratIOn, rather than cla11nIng exclusIve JunsdIctIOn The OLRB' s approach to deferral IS set out In Unzted Food and Commerczal Workers UnlOn and Valdl Inc, [1980] 3 C.L.R.B.R. 299 (Adams) ThIS analysIs leads me to conclude an applIcatIOn to the OLRB for a detennInatIOn of employee status does not depnve tlus board of JunsdIctIOn The remaInIng questIOn IS whether I should defer to the OLRB It has assumed the role prevIOusly played by the LRT In the publIc sector ThIS change In the legal landscape reqUIres me to decIde whether tlus board's past practIce of defernng to the LRT warrants deferral to the OLRB The only stated ratIOnale for deferral to the LR T on questIOns of employee status was that they fell wItlun that tribunal's field of speCialIzatIOn In other 9 words, the LR T was vIewed as havIng greater expertIse than thIS board. Both agencIes dealt exclusIvely wIth the publIc sector, but the specialty of tlus board was the InterpretatIOn of collectIve agreements, whereas the specialty of the LR T was the applIcatIOn of CECBA WIth thIS dIvIsIOn of labour In mInd, VIce-Chair Barrett In Mlnzstry of Industry, Trade and Technology concluded the LRT had a comparatIve advantage In makIng detennInatIOns of employee status The tacIt premIse underlYIng thIS conclusIOn appears to be that such Issues arose more often before the LR T than before thIS board. Does the OLRB have greater expertIse than the GSB In relatIOn to employee status In the publIc sector? The OLRB no doubt has a wealth of expenence In determInIng the status of employees In the pnvate sector The record In thIS case does not IndIcate how often, If ever, the OLRB has made a detennInatIOn of employee status In the publIc sector SInce assumIng the JunsdIctIOn to do so In 1993 The partIes have submItted such an Issue to thIS board In at least one recent case noted above As pOInted out by counsel for the aSSOCiatIOn, tlus board's vast expenence wIth publIc-sector labour relatIOns gIves It a sound grasp of the context In whIch dIsputes over employee status anse In the publIc servIce WeIghIng all of these consIderatIOns, I am unable to conclude the OLRB has more relevant expertIse than tlus board. Two other factors favour thIS board over the OLRB The first IS the expedItIOus resolutIOn of dIsputes The gnevance was filed In October of 2003 and scheduled to be heard by tlus board at the end of Apnl of 2004 An applIcatIOn to the OLRB was not made by the employer untIl early Apnl and proceedIngs there had not begun when I heard argument In July In these cIrcumstances, deferral to the OLRB would delay the resolutIOn of the dIspute I agree wIth aSSOCiatIOn counsel that JustIce delayed can amount to JustIce denIed In labour relatIOns The other factor favounng thIS board IS party control over dIspute resolutIOn procedures The partIes here playa sIgnIficant part In the governance of tlus board 10 In general and In the fashIOnIng of procedure In partIcular As noted by counsel for the aSSOCiatIOn, that part allows them to use a process such as med-arb when they deem It appropnate Beanng all of these factors In mInd, I conclude that deferral to the OLRB IS not warranted. V In summary, I have decIded. 1 JunsdIctIOn to decIde the Issue of employee status resIdes wIth tlus board, 2 ThIS board should not defer to the OLRB Dated at Toronto thIS 23rd day of August 2004 & ~ c...~ ~... .~___ RJch~d Brown VIce-Chair