Ontario Labour Relations Board
[1990] OLRB Rep. June 644
1887-88-R Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources and The Board of Governors of Algonquin College of Applied Arts and Technology, Respondents
BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: A. Ryder and Ivor Oram for the applicant; R. C. Filion for Crown in right of Ontario as represented by the Ministry of Natural Resources; Patricia G. Murray for the Board of Governors of Algonquin College of Applied Arts and Technology.
DECISION OF THE BOARD; June 18, 1990
This application under the Successor Rights (Crown Transfers) Act (the "C.T.A.") pertains to the operation and maintenance of Achray Campground and Sand Lake Gate Access Point in Algonquin Provincial Park. The application was filed after the Ministry of Natural Resources (the "M.N.R.") entered into an agreement in the Spring of 1988 with the Board of Governors of Algonquin College of Applied Arts and Technology (the "College") under which the M.N.R. contracted out to the College the operation and maintenance of that campground and access point.
At the commencement of the hearing of this application on June 11, 1990, counsel for the applicant advised the Board that, although he did not have instructions to withdraw the application, he had serious reservations about the Board's jurisdiction to grant it as he was unable to point to any statutory provision covering a transfer from the Crown to a community college.
In her submissions on behalf of the College, Ms. Murray contended that the Board has no jurisdiction in this case to issue a declaration under the C.T.A. because the College's collective bargaining relationships are governed exclusively by the Colleges Collective Bargaining Act (the "C.C.B.A."), and the C.T.A. does not apply. She also submitted, in the alternative, that if the Board does have jurisdiction under the C.T.A., in the circumstances of this case it should decline to issue a declaration.
Counsel for the Crown expressed complete support for the foregoing submissions.
In his reply, Mr. Ryder indicated that his only disagreement with Ms. Murray's submissions pertained to her alternative argument. It was his position that the Board has no jurisdiction to decline to issue a declaration if there has been a transfer of an undertaking within the meaning of the C.T.A.
Having regard to the submissions of counsel and to the pertinent legislative provisions, we are unanimously of the view that, in the circumstances of this case, the Board has no jurisdiction to grant a declaration under the C.T.A. The C.T.A. clearly contemplates that after there has been a transfer of an undertaking from the Crown to an employer within the meaning of that legislation, the Labour Relations Act will apply to the bargaining agent that has representation rights in respect of the employees employed in the undertaking. In this regard, section 6 of the C.T.A. provides, in part, as follows:
6.- (1) Notwithstanding any other provision of this Act,
(b) an employee organization shall not exercise representation rights or act as bargaining agent in respect of employees employed in an undertaking transferred from the Crown to an employer unless the employee organization qualifies as a trade union or council of trade unions under the Labour Relations Act.
(2) Except as otherwise provided in this Act, where an undertaking is transferred from the Crown to an employer, the Labour Relations Act applies to a bargaining agent that has representation rights in respect of the employees employed in the undertaking and to the employees and where an undertaking is transferred from an employer to the Crown, the Crown Employees Collective Bargaining Act applies to a bargaining agent that is certified as a bargaining agent in respect of the employees employed in the undertaking and to the employees.
The legislation that applies to the applicant in its capacity as bargaining agent for community college employees is the C.C.B.A., which contains extensive provisions regarding negotiations, fact finding, voluntary binding arbitration, final offer selection, agreements, the Colleges Relations Commission, strikes and lock-outs, and representation rights in the context of Ontario's community colleges. Of particular relevance to the instant case are the following provisions:
In this Act and in the Schedules,
(a) "agreement" means a written collective agreement between the Council on behalf of the employers and an employee organization covering terms and conditions of employment negotiable under this Act;
(b) "bargaining unit" means the academic staff bargaining unit of employees or the support staff bargaining unit of employees set out in Schedules 1 and 2;
(e) "Council" means the Ontario Council of Regents for Colleges of Applied Arts and Technology;
(f) "employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2;
(g) "employee organization" means an organization of employees formed for the purpose of regulating relations between the employer and employees under this Act, but does not include such an organization of employees that discriminates against any employee because of age, sex, race, national origin, colour or religion;
2.-(1) This Act applies to all collective negotiations concerning terms and conditions of employment of employees.
(2) No such collective negotiations shall be carried on except in accordance with this Act.
67.-(1) The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act.
(2) The employee organization that is party to the agreement covering the academic staff bargaining unit or the support staff bargaining unit on the 18th day of July, 1975 shall be deemed to have been granted bargaining rights in relation to such bargaining unit on the 18th day of July, 1975.
The Schedules to the C.C.B.A. contain descriptions of two statutorily mandated bargaining units. Schedule 1 describes the "academic staff bargaining unit", and Schedule 2 describes the "support staff bargaining unit". It is common ground among the parties that the work under the agreement in question was performed by "students" who fall within one of the eleven exclusions listed in Schedule 2, and who, therefore, were not covered by the "support staff" collective agreement. (If they had been employed by the M.N.R. to perform the work in question, they would similarly have been excluded from the collective agreement between the Crown and the applicant as a result of their student status.) However, if that work had been performed by College employees not excluded from Schedule 2 of the C.C.B.A., the "support staff" collective agreement would have applied to them. Thus, the Board's lack of jurisdiction under the C.T.A. in respect of transfers of undertakings from the Crown to community colleges does not create a collective bargaining void.
In view of our conclusion that we have no jurisdiction to grant a declaration under the C.T.A. in respect of this alleged transfer of an undertaking from the Crown to the College, it is unnecessary to deal with the alternative argument advanced on behalf of the College.
For the foregoing reasons, this application is hereby dismissed.