The Canadian Union of Public Employees, Local 1474 v. The Doctors Hospital, 1983 CanLII 747

Ontario Labour Relations Board

[1983] OLRB Rep. April 500

1792-82-U The Canadian Union of Public Employees, Local 1474, Complainant, v. The Doctors Hospital, Respondent

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members B. K. Lee and I. M. Stamp.

APPEARANCES: G. Brian Atkinson, George Maingot and L. Hipson for the complainant; C. G. Riggs, G. F. Luborsky, P. A. Biggin and G. C. Sanchez for the respondent.

DECISION OF THE BOARD; April 28, 1983

1. This is a complaint filed under section 89 of the Labour Relations Act alleging that the respondent has violated section 79 of that Act. While section 89 of the Labour Relations Act is the one under which this complaint should be filed, the parties agree that the complaint is with respect to an alleged violation of the section 13 of The Hospital Labour Disputes Arbitration Act. That section provides as follows:

Notwithstanding subsection 1 of section 79 of the Labour Relations Act, where notice has been given under section 14 or 53 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of hospital employees to which this Act applies to or by the employer of such employees and no collective agreement is in operation, no such employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, and no such trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, until the right of the trade union to represent the employees has been terminated.

(emphasis added)

3. At the hearing scheduled for the complaint, the Board issued an oral ruling with respect to a preliminary objection and dismissed the complaint. In their submissions on the preliminary issue, the parties referred the Board to sections 9, 11, 13 and 15 of Bill 179 and, while the Board did not recite the text of those sections in its oral ruling, it is useful to set them out herein and they state as follows:

4. Every compensation plan that, but for this section, would have expired before the 1st day of October, 1982, shall be extended,

(a) where the compensation plan would have expired on or after the 1st day of October, 1981, for the twelve-month period immediately following the day the plan would have expired; and

(b) where the compensation plan would have expired before the 1st day of October, 1981, for the period commencing with the day immediately following the day the plan would have expired and ending with the day immediately preceding the plan's anniversary date next following the 1st day of October, 1982.

11. Every compensation plan that is in effect on the 21st day of September, 1982, to which this Part applies and that expires on or after the 1st day of October, 1982, including every compensation plan extended under section 9, shall,

(a) where the expiry date is scheduled to occur on or after the 1st day of October, 1982 and prior to the 1st day of October, 1983, be extended for the twelve-month period immediately following the scheduled expiry date; and

(b) where the expiry date is scheduled to occur on or after the 1st day of October, 1983, be subject to this Part for the twelve-month period commencing with the plan's anniversary date falling within the period beginning with the 2nd day of October, 1982 and ending with the 1st day of October, 1983.

13. Notwithstanding any other Act except the Human Rights Code, 1981 and section 33 of the Employment Standards Act, but subject to section 14, the terms and conditions of,

(a) every compensation plan that is extended or made subject to this Part under section 9 or 11; and

(b) every collective agreement that includes such a compensation plan, shall, subject to this Part, continue in force without change for the period for which the compensation plan is extended or made subject to this Part.

15. The parties to a collective agreement that includes a compensation plan that is extended under section 11 may, by agreement, amend any terms and conditions of the collective agreement other than compensation rates or other terms and conditions of the compensation plan.

The Board's ruling, which it hereby confirms, was as follows:

The issue before the Board raised by way of preliminary objection by the respondent relates to the Board determining whether, at the time giving rise to the complaint herein, the parties were bound by a collective agreement.

The parties were agreed that: they had been bound to a collective agreement with a stated term of September 29, 1980 to September 28th, 1982; on June 29th, 1982, the respondent received from the applicant notice to bargain a renewal of the agreement; and that the parties are subject to the Inflation Restraint Act, 1982, S.O. 1982, c.55 (Bill 179). The Board assumes that the parties consider themselves subject to Bill 179 because the respondent is a hospital pursuant to section 6(l)(d) of Bill 179.

If there was in law no collective agreement in operation, but rather the terms and conditions of the relationship between the parties were preserved pursuant to section 13 of The Hospital Labour Disputes Arbitration Act, which for our purposes is the same as section 79 of the Labour Relations Act, this Board would inquire into the complaint. However, if there was, in law, a collective agreement in existence between the parties at the relevant times, the conditions precedent for the application of section 13 of The Hospital Labour Disputes Arbitration Act would not be satisfied.

Having regard to section 13 of Bill 179 which, in our view, continues in force collective agreements which contain compensation plans extended by section 9 of Bill 179, and since the compensation plan in question here has been extended by virtue of section 9(a) of Bill 179, we must conclude that there was by operation of law a collective agreement in force between the parties at the relevant times. See the Board's decision in Broadway Manor Nursing Home, [1983] OLRB Rep. Jan. 26.

We cannot accept the complainant's argument that section 15 of Bill 179 envisages that the statutory freeze provisions of section 13 of The Hospital Labour Disputes Arbitration Act are applicable to the facts of this case because we find that Bill 179 suspends the right to resort to conciliation or interest arbitration under The Hospital Labour Disputes Arbitration Act. See paragraph 30 of the Broadway Manor decision, supra.

In any event, we are of the view that the statutory freeze provision is not part of the statutory mechanism for resolving collective bargaining disputes. That is, it is not part of the conciliation, mediation and interest arbitration scheme established by the Legislature. Rather the freeze exists in order to preserve the parties' rights when the operation of a collective agreement has ended, but they have not yet exhausted the disputes resolution process under the relevant statute.

For these reasons, the Board sustains the respondent's preliminary objection and dismisses the complaint.

ORAL RULING OF BOARD MEMBER B. K. LEE;

While I concur with my colleagues, in so doing I adopt the comments of Board Member B. L. Armstrong's dissent in the Broadway Manor decision, supra, where in major part he states: "..., I am reluctantly driven to the same conclusion as my colleagues as to the meaning of the Inflation Restraint Act and its impact on collective bargaining. The language of section 13, when read together with sections 15 and 14 has forced this Board to find that the Inflation Restraint Act has not only purported to reduce compensation but has suspended collective bargaining for all of those employees and their unions who have been, or who might be, by government fiat, swept under its coverage.".

4. For the foregoing reasons, this complaint is dismissed.