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HomeMy WebLinkAbout1980-0481.Abbott.81-09-14Between: Ms. Dianr.e Abbott IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befor; THE GRIEVANCE SETTLZMENT BOARD Griever - And - The CJTOWF. in Right z~f Ontario (Liquor Co~ntrol Board of Ontario) En_olOyer Before: Mr. J.F.W. Weatherill Vice Chairman Mr. I. Thonson Xember MS. H. J. iaing Menber For the Griever: Mr. A. Xilliken Heisey, Counsel Blake. Cassels & Graydon For the Employer: - Mr. R. J. Drmaj, Counsel Hicks, Morley, Hamilton, stewart 4 storie Hear*: JU:~ 30th, 1981 - 2 - DECISION This is an application purporting to be made under Sectlon 11 ~(3) of The Crown Employees Collective Bargainlng Act, 1972. The applicant requests the Board to vary its decision in this matter dated May 29. 1981, and to substitute the decision of the dissenting member for that of the majority of the Board. A preliminary question arises as to the jurisdiction of this Board to amend, alter or vary a decision - or in any event a final decision - which it has made in a matter before it. In the instant case the grievance of Mr. Abbott was heard by a panel of the Board Differently constituted from that now sitting), on January.26, 1981. The decision of the majority of the Board, dismissing the grievance, was issued on May 29, 1981. Beasons were issued in support of the majority and minority opinions. There is no provision in The Crown Employees Collective Bargaining Act specifically empowering the Grievance Settlement Board, as such, to review, or to amend. alter or vary any final decision which it has issued. It seems clear that the decision issued in this matter on 'May 29, 1981, was a final decision. It is, accordingly, the employer's position, with respect to'the present application, that the Board is functus officio, and that it has no jurisdiction .tO entertain the application. - 3 - Section 11 of The Crown Employees Collective Bargaining Act is as follows: ” Il.-(l) TIE bard shall examine into and decide on matters that am in dispute wicbin :he scope of cok:ive bargaining under tbii Act. 1972, c. 67, s.. 1 I (I). (2) In the conduct of proceedings before i; and in rendering a decision in respect of a matter in dispute. the board sSaiI consider any factor that to it appears to be relevant to the matkr in dispute indud&, (a) the needa of the Crown and it; agencies for qualified employm : (6) tbc~conditioris of employment in similar occupations outside the public service, including such geographic: industrial or other variations as the board may consider rekvant: ‘. (c) the desirability to maintain appmpria:e relationship in the conditiom of employment as between claseifi- cations,of employees: and (d) ,the need to establish terms and conditions of em- plqyment that .a~ fair and reasonable in relation to the quaIifktions required. the work performed. the responsibility assumed and the nature of the services rendered. 1972. c. 67, S. 11 (2): 1974. c. 133. 3. T. (3) ‘The board may, upon application by either party to a ~decision within ten days after the release of the decision. subject to affording the parties the opporrunity to make representations thereupon to the board. amend. alter or tq the decision wberz it is shown to the satisiaction of the board that it has failed to ded with any matter in dispute referred to it or that M error is apparent 0x1 the faceoi the de&ion. (4) The Arbitrations ACL and Tile SkaWory Poem Pro- crdwr AC& 1971 do 'not apply to arbiratiqns under this Act. 1972. c. 67. s. 11 (3. 4). 11 .i c - 4 - There is, plainly, a certain power of review conferred on a "board" by this provision. The question is whether or not the Grievance Settlement Board is a "board" within the meaning of Section‘ 11 (5). In our view it is not. Sections 9 to 18a of the Act appear under the general heading "Arbitration". The Grievance Settlement Board is established by Section 18a (1). and by Section 18.(l), certain matters may be referred to it "for arbitration". It would, for some purposes, be aPproPriate to describe the Grievance Settlement Board as a "board of arbitration" or "arbitration board", such phrases - properly understood - being generally descriptive of the Board's essential function, which may be said to be that of hearing and deciding grievances or differences which arise between the parties (ba.rgaining agent and employer), relating to the interpretation, application, administration or alleged contravention of a Collective Agreement. Section 18 (1) of the Act is as follows: ” IS.-(I) Eveq collective agreement shaJl be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation. application. administration or alleged contravention of the agreement. including any qoestion as to whether a matter is arhitrable. such matter may be refer- red for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the partia to prnent their evidence and to make thur submissions. shall decide the matter and its decision is 6naf and binding upon the partice and tbe employea covered by the agreement.” - 5 - The arbitrations which the Grievance Settlement Board conduct involve disputes connsonly known as "rights disputes". These may be contrasted with the disputes dealt with by a "board of arbitration" established under Section 9 of the Act. Such a board, appointed by or upon notice to the Ontario ?ublic Service Labour Relations Tribunal may be said to have as its essential function the determination of an "interest dispute". As a result of its decision, a Collective Agreement is established which the parties may be required to execute. .Such a board decides "all matters in dispute coming withln the scope of collective bargaining". The nature of its task is quite different from that of the Grievance Settlement Board, and the "arbitration" which it conducts is jurisprudentially quite distinct from those conducted by this Board. Where, in Section 11. reference is made to "the board", it is clear that reference is made to any board of arbitration established under Section 9. There is no permanently-established tribunal comparable to the Grievance Settlement Board or the Ontario Public Service Labour Relations Tribunal, established under other provisions of the'Act. 8y Section 1 (1) (d) of the Act, "board" means a board of arbitration established under the Act. It is only if the two -6- distinct uses of the term "arbitration" are confused that the Grievance Settlement Board could be taken to come within the scope of that definition. Sections 10 (12) and 10 (13) of the Act set out certain powers which may be exercised by'"a board". Section 18 (2) provides that the Grievance Settlement Soard "has the same powers as a board of arbitration under Subsection 12 and 13 of Section 10". In other respects, quite distinct provisions are made for the Board, and for a board of arbitration (and. in later provisions, for the Tribunal), in respect of jurisdiction, powers and procedures. From all of this we conclude that the Grievance Settlement Board is not "the board" referred to in Section 11 of the Act. There is, as we read The Cr,own Employees Collective Bargaining Act, no statutory power in the Grievance Settlement Board to rehear a matter already decided, or to amend, alter or vary a final decision which the Board has issued. In addition, it is our view that the provisions,in Section 18 (a) (8) of the Act that the Grievance Settlement 3oard shall determine its own practice and procedure cannot pmperly read as conferring a power of review such as that sought to be invoked - 7 - here. Such a jurisdiction (expressly conferred on boards of arbitration by Section 11 (3) of the Act), is not created as a matter of "practice and procedure". Rather, practice and procedure are to be developed in aid of jurisdiction already conferred by the statute. Finally;we would note that there ,is not, in the instant case, any basis on which it could be said that this Board has any continuing or "equitable" jurisdiction which, as is suggested in . the case of Gmiv.tniSter of Nanno~b&r and &UX&U~ (1971), 23 D.L.R. (3d) 1 (S.C.C.), might give us jurisdiction to reopen the hearing. In the instant case, the thrust of the application is that the Board's decision was wrong, and we are asked to come to a different conclusion. In our view, we have no jurisdiction to entertain such an application. Thee decision of the'8oard in this matter on May 29, 1981 was, by virtue of Section 18 (1) of the Act, final and binding. -a- For the foregoing reasons, the application is dismissed. DATED AT TORONTO THIS 14th DAY OF SEPTEb!BER, 1981. 1. F. 'W. Weatherill, Chairman w I. Thomson, *tier H. J. Laing, *tier