[1985] OLRB Rep. October 1543
1248-85-R; 1317-85-R The Regional Municipality of Waterloo, Canadian Union of Public Employees, and its Local 1883, Applicants, v. The Ontario Public Service Employees Union, and the Crown in Right of Ontario, Respondents
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.
APPEARANCES: Brian P. Smeenk, Paul A. Young, L. Lewis, G. Brillinger and P. Johnson for The Regional Municipality of Waterloo; Raj Anand and Ivor Oram for the Ontario Public Service Employees Union; C. M. Mitchell for the Canadian Union of Public Employees and its Local 1883; no one appearing for the Crown in Right of Ontario.
DECISION OF THE BOARD; October 8, 1985
These are two applications made under the Successor Rights (Crown Transfers) Act, R.S.O. 1980, c.489. At the hearing of this matter, the parties agreed and the Board directed that these two applications be consolidated, with the applicants being The Regional Municipality of Waterloo and the Canadian Union of Public Employees and its Local 1883 and the respondents being the Ontario Public Service Employees Union and the Crown in Right of Ontario.
The Board delivered the following oral decision at the conclusion of its hearing in this matter:
The central issue before the Board in this case is whether there has been a transfer of an undertaking from the Crown to the Regional Municipality of Waterloo. The parties agreed that the work now performed by the Regional Municipality of Waterloo that was formerly performed by the Crown was the administration of the Family Benefits Act, R.S.O. 1980 c. 151, in respect of employable sole support parents, and that such work is an undertaking within the meaning of section 1(1 )(h) of the Successor Rights (Crown Transfers) Act.
We are satisfied that the work in question is now performed by persons employed by the Regional Municipality of Waterloo. Six of those employees were formerly employed by the Crown and had accepted employment with the Regional Municipality of Waterloo.
Counsel for the respondent Ontario Public Service Employees Union forcefully argues that no transfer has occurred because the Crown did not have statutory authority to have this work performed by persons who are not crown employees. He submits that since no legal transfer could be made by the Crown without express legislative authority, no transfer within the meaning of the Successor Rights (Crown Transfers) Act could have occurred.
We do not agree. In the Corporation of the Regional Municipality of Sudbury decision, [1981] OLRB Rep. March 251, the transfer in question was subject to Ontario Municipal Board approval. We adopt the Board's approach in that case at paragraph 10 where the Board stated:
'It goes without saying that in this Province a municipality can do those things which it has the statutory power to do under The Municipal Act, R.S.O. 1970, c.284 as amended, subject to all of the conditions set out in that legislation. It appears that as a matter of municipal law the acquisition from the Crown of sewage and water works by a municipality is subject to the approval of the Ontario Municipal Board. It must be emphasized that we are not here concerned with whether there has been a ~transfer' within the technical sense of The Municipal Act. The threshold issue is whether there has been a ~transfer' for the purposes of The Successor Rights (Crown Transfers) Act, 1977. The meaning of the word 'transfer' within The Successor Rights (Crown Transfers) Act, 1977, must, like the words 'sale of a business' in section 5 of The Labour Relations Act, be construed having regard to the purposes of that legislation (cf Thorco Manufacturing Ltd. 65 CLLC 16,052). The Act is designed to quiet disputes about bargaining rights and provide relief to employers, employees and unions alike when there has been a change of employer as an undertaking passes from the public sector to the private or vice versa. It is in that sense that the word 'transfer' as defined in section i(l)(f) of the Act is to be construed."
While the legal authority of the Crown to effect a transfer may be a relevant consideration in determining whether a transfer within the meaning of the Successor Rights (Crown Transfers) Act, has occurred, it is not determinative of the issue. It is clear to us that the Crown has conveyed the administration of a part of its Family Benefits Act program to the Regional Municipality of Waterloo and we do not need to determine whether the Crown has done so legally. We do note however that the Divisional Court in the Ontario Public Service Employees Union and Margaret Meierhoff, unreported decision, January 28, 1985, leave to appeal denied, March 4, 1985, has opined that the Crown did have the legal authority to do so.
Since it is clear to us that there has been an intermingling of employees formerly employed by the Crown with employees of the Regional Municipality of Waterloo represented by the Canadian Union of Public Employees and its Local 1883 pursuant to its collective agreement with the Regional Municipality of Waterloo, and the employees in the bargaining unit represented by the Canadian Union of Public Employees and its Local 1883 far outnumber the six employees that are currently represented by the Ontario Public Service Employees Union, we hereby declare, pursuant to section 5 of the Successor Rights (Crown Transfers) Act that:
a) the Regional Municipality of Waterloo is no longer bound by the collective agreement between the Ontario Public Service Employees Union and the Crown and
b) the Canadian Union of Public Employees and its Local 1883 is the bargaining agent for all of the employees in the bargaining unit described in the collective agreement between the Canadian Union of Public Employees and its Local 1883 and the Regional Municipality of Waterloo, which of course, now includes those six employees who were formerly employees of the Crown.