Ontario Nurses' Association v. George St. L. McCall Chronic Care Wing of the Queensway General Hospital

[1991] OLRB Rep. January 18

0332-90-U Ontario Nurses' Association, Complainant v. George St. L. McCall Chronic Care Wing of the Queensway General Hospital, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

DECISION OF THE BOARD; January 23, 1991

1. This is a complaint to the Board, under section 89 of the Labour Relations Act, in which the complainant trade union alleges that the respondent employer has acted in a manner contrary to the "freeze" provisions of section 13 of the Hospital Labour Disputes Arbitration Act (the "HLDAA") and section 79 of the Labour Relations Act (the "LRA"), and also contrary to section 66 of the LRA.

2. The respondent challenges the Board's jurisdiction to hear the complaint insofar as it alleges that the respondent has breached section 13 of the HLDAA and section 79 of the LRA. In the alternative, the respondent submits that the Board has no jurisdiction to grant the relief requested by the complainant. The complainant requests that the Board:

   1. Declare the Employer has violated the Labour Relations Act and the Hospital Labour Disputes Arbitration Act.

   2. Order the Employer to pay all members of the bargaining units the wage increases they should have received, retro active to April 1, 1990.

   3. Order the Employer to pay all members of the bargaining units a weekend premium of $0.45 per hour for all relevant hours worked since April 1, 1990, with interest.

   4. Order the Employer to comply with provisions of the Acts until such time as a collective agreement is in force.

   5. Such other reasonable remedies as the Union may advise an the Board considers appropriate.

3. The respondent submits that:

   (a) the remedy sought by the complainant, insofar as it seeks to alter the terms and conditions of employment, infringes the absolute jurisdiction of an interest arbitrator to set the terms and conditions of employment and to conclude a collective agreement between the parties and, as such, is beyond the remedial jurisdiction of the Board; and

   (b) the remedy sought by the complainant is beyond the jurisdiction of the Board because section 79 of the LRA is expressly overwritten by section 13 of the HLDAA and the Board is without jurisdiction to entertain complaints that section 13 of the HLDAA has been breached because there is nothing in that Act which confers such jurisdiction upon the Board.

The respondent alleges that a complaint alleging a breach of the freeze provisions of the HLDAA is properly dealt with by an interest board of arbitration constituted under the HLDAA to settle a collective agreement between the parties.

4. The complainant submits that it has alleged that the respondent has violated section 79(1) of the LRA as modified by section 13 of the HLDAA and that, pursuant to section 2(2) of the HLDAA, the Board has jurisdiction to hear such a complaint under section 89 of the LRA.

5. Other than to note that the parties have made lengthy written submissions with respect to the respondent's objection to the Board's jurisdiction, we do not propose to attempt to summarize them further.

6. Sections 1(2), 2, 3, 4, 9, 11, 12, 13 and 14 of the HLDAA provide that:

1-(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act.

2.-(1) This Act applies to any hospital employees to whom the Labour Relations Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(2) Except as modified by this Act, the Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

3. Where a conciliation officer appointed under section 16 of Labour Relations Act is unable to effect a collective agreement within the time allowed under section 18 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement, and sections 17 and 19 of the Labour Relations Act shall not apply.

4. Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters in dispute between the parties shall be decided by arbitration in accordance with this Act.

9.-(1) The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board necessary to be decided in order to conclude a collective agreement between the parties, but the board shall not decide any matters that come within the jurisdiction of the Ontario Labour Relations Board.

(2) The board of arbitration shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.

(3) The Arbitrations Act does not apply to arbitrations under this Act.

11.-(1) Notwithstanding anything in the Labour Relations Act, no hospital employees to whom this Act applies shall strike and no employer of such employees shall lock them out.

(2) Sections 74 and 75, subsection 76(1) and sections 77, 92, 93 and 95 of the Labour Relations Act as amended or re-enacted from time to time apply with necessary modifications under this Act as if such sections were enacted in and form part of this Act.

12.-(1) Notwithstanding section 61 of the Labour Relations Act, where a trade union that has been certified as bargaining agent for a bargaining unit of employees of a hospital has given to the employer of such employees notice under section 14 of that Act and the Minister has appointed a conciliation officer, an application for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate may be made only in accordance with subsection 57(2) of the Labour Relations Act.

(2) Notwithstanding section 61 of the Labour Relations Act, where notice has been given under section 53 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of employees of a hospital to or by the employer of such employees and the Minister has appointed a conciliation officer, an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement or an application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit defined in the agreement shall not be made after the day upon which the agreement ceased to operate or the day upon which the Minister appointed a conciliation officer, whichever is later, except in accordance with section 5 or subsection 57(2) of the Labour Relations Act, as the case may be.

13. Notwithstanding subsection 79(1) 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.

14. Except where inconsistent with this Act, sections 96, 97, 98, 99 and 101 of the Labour Relations Act, as amended or re-enacted from time to time, apply with necessary modifications under this Act as if such sections were enacted in and form part of this Act.

[emphasis added]

Section 79 of the LRA provides that:

79.-(1) where notice has been given under section 14 or section 53 and no collective agreement is in operation, no 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 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,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, 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 or the employees until,

(a) the trade union has given notice under section 14, in which case subsection (1) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

(3) Where notice has been given under section 53 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 44 applies with necessary modifications thereto.

Section 89 of the LRA is an enforcement section pursuant to which a complaint alleging an unfair labour practice is made to the Board.

7. The HLDAA is directed at the process of collective bargaining in "hospitals", as that term is defined in the Act. Otherwise, as section 2(2) of the HLDAA makes abundantly clear, the legislature intended that the provisions of the LRA apply to the employees, trade unions and employers to which the HLDAA applies, except to the extent that these maybe modified by the provisions of the HLDAA itself. There are several drafting techniques which have been used to accomplish this "modifying" effect. For example, in section 3 of the HLDAA it has been expressly stated that sections 17 and 19 of the LRA do not apply in the circumstances set out, sections 11(1), 12 and 13 of the HLDAA use the word "notwithstanding" to provide a modifying effect, and sections 11(2) and 14 of the HLDAA imply that specific provisions for the overall scheme of the HLDAA necessarily mean that certain provisions of the LRA may be modified. Other modifications occur by necessary implication. For example, section 73 of the LRA does not apply because no strike is lawful under the HLDAA, and the first contract provisions in section 40a of the LRA do not apply since the HLDAA provides a complete code for collective bargaining, including first agreement situations, in the hospitals sector.

8. The certification provisions of the LRA are unmodified by the HLDAA. The termination of bargaining rights provisions of the LRA apply as modified by section 12 of the HLDAA. Certain of the unfair labour practice sections of the LRA apply unmodified (see for example sections 64 through 70 of the LRA). Others, relating to unlawful strike or lock-out activity, apply with unspecified "necessary" modifications. Section 79 of the LRA has been modified, in part, by section 13 of the HLDAA.

9. Sections 13 of the HLDAA and 79 of the LRA prohibit an employer from altering working conditions in the circumstances set out therein. They are what are commonly known as "freeze" provisions. The purpose of such legislation is to facilitate the collective bargaining process by maintaining the totality of the employment relationship in the pattern existing at the time the freeze provisions came into effect, and thereby providing both a fixed point of departure and a period of stability for collective bargaining in which collective bargaining (see, for example, A. N. Shaw Restorations Ltd., [1978] OLRB Rep. June 479, Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859, Simpsons Limited, [1985] OLRB Rep. Apr. 594).

10. The LRA permits parties to a collective bargaining relationship to resort to the economic sanctions of a strike or lock-out, as the case may be, as part of the collective bargaining process, so long as they do so in a timely manner (namely, not during the term of a collective agreement and not before the conciliation process has been exhausted). The HLDAA does not. Section 11 of the HLDAA operates to modify the LRA in that respect by eliminating the distinction between the lawful and unlawful strikes and lock-outs and eliminates strikes and lock-outs from the collective bargaining process in the hospitals sector. Instead, the HLDAA stipulates that, where the parties are unable to effect a collective agreement between themselves, and the conciliation process has been exhausted, a collective agreement shall be settled between them by arbitration. As a sort of a quid pro quo, and in order to maintain the collective bargaining field as it was when notice to bargain was given, section 13 of the HLDAA has been implemented. It operates to modify section 79 of the LRA by stipulating that, once notice to bargain has been given, an employer may never alter any working conditions (except with the consent of the trade union which represents the employees in question) until the trade union's right to represent the employees has been terminated. In effect, clause 79(1)(a) of the LRA does not apply to employees, trade unions and employers covered by the HLDAA, or, to put it another way, the wording of section 13 replaces the wording of section 79(1) of the LRA. There is only one freeze provision which applies to employees, trade unions and employers covered by the HLDAA. Section 13 of the HLDAA and sections 79(2) and (3) of the LRA operate together as that provision.

11. The question of the Board's jurisdiction in complaints such as this one has never been challenged in quite the same way as it is by the respondent herein. The Board has, however, had occasion to consider whether an interest board of arbitration is the proper forum for such a complaint. Time and again the Board has dismissed such suggestions on the basis that the jurisdiction that an interest board of arbitration under the HLDAA and the jurisdiction of this Board are separate and distinct and that whether or not there has been a breach of the legislation is not a determination which can or should be made by an interest board of arbitration (see, for example, Scarborough Centenary Hospital Association, [1978] OLRB July 679, St. Joseph's General Hospital, Board File No. 0965-84-U(A), decision issued September 25, 1984, unreported, Ottawa General Hospital, Board File No. 0965-84-U(B) decision issued September 25, 1984, unreported, Oshawa General Hospital, [1985] OLRB Rep. Jan. 98).

12. In our view, the structure and provisions of the HLDAA indicate a legislative intention that there be a distinction drawn, as the Board has done, between the "interest" issues which are to be determined by a board of arbitration constituted under that legislation and the "rights" issues raised by unfair labour practice complaints, including complaints that working conditions have been wrongfully altered. We are satisfied that the Legislature intended that the Board hear and determine such unfair labour practice complaints in the hospital sector; that is, complaints concerning employees, trade unions and employers covered by the HLDAA.

13. We are satisfied that this Board, and not an interest board of arbitration constituted under the HLDAA, has the jurisdiction to hear the complaint herein.

14. In issue in this complaint is not whether the complainant is trying to gain some sort of advantage within the collective bargaining process established by the HLDAA. Nor is it the complainant which is seeking to alter the terms and conditions of employment. Rather, the issue is whether the respondent has wrongfully altered working conditions, regardless of its motive for doing so. The complainant alleges that the respondent has done so and seeks to have that situation remedied. The Board must necessarily also have the jurisdiction to fashion an appropriate remedy in cases in which an employer is shown to have wrongfully altered working conditions.

15. We find it neither necessary nor appropriate to comment further on the issue of remedy until we have had the benefit of the evidence and representations of the parties.

16. This proceeding will continue as previously scheduled.