Ontario Secondary School Teachers' Federation v. Kent County Board of Education, 1994 CanLII 9955

[1994] OLRB Rep. June 701

0316-94-JD Ontario Secondary School Teachers' Federation, Applicant v. Kent County Board of Education and The Canadian Union of Public Employees, Local Union No. 2214, Responding Parties

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members S. C. Laing and B. L. Armstrong.

APPEARANCES: Ian J. Fellows, Ken H. Post and George J. Lung for Ontario Secondary School Teachers' Federation; Marisa Pollock, Laura Moore and Liz Byatt for the Canadian Union of Public Employees, Local Union No. 2214; Timothy P. Liznick, Jennifer Wootton-Regan, Mac Leitch and Paul Sea grave for Kent County Board of Education.

DECISION OF THE BOARD; June 30, 1994

1The title of proceedings is amended to describe the second responding party as: "The Canadian Union of Public Employees, Local Union No. 2214".

2This is a complaint under section 93 of the Labour Relations Act.

3The applicant OSSTF represents a unit consisting of the Kent County Board of Education's occasional teachers. The applicant alleges that the employer is improperly assigning work of occasional teachers to persons represented by CUPE, Local 2214.

4The matter was scheduled for consultation in accordance with section 93(1.2) of the Labour Relations Act on June 14, 1994. At the outset of the consultation, the employer and CUPE made two arguments, both of which relate to the interpretation of the recognition clause of the OSSTF collective agreement and certain provisions of the Education Act, R.S.O., 1990 c. E.2.

5Pursuant to Article 1.1 of the collective agreement, the OSSTF is the exclusive bargaining agent "for all Occasional Teachers employed by the Board in the secondary panel". Article 1.2 of the agreement provides that "Occasional Teacher" shall have the meaning given to it in the Education Act. The definition of occasional teacher in the Education Act, in turn, brings into play the definition of "Teacher" in that Act. "Teacher" is defined as "... a person who holds a valid certificate of qualification or a letter of understanding as a teacher in an elementary or secondary school in Ontario". The Education Act and the Regulations thereto also list the "duties of a teacher". Finally, section 262(1) provides that no one shall be employed or act as a teacher unless the person is qualified as prescribed by the Regulations. There is no suggestion that the persons to whom the work has been assigned, "study room supervisors" in the CUPE bargaining unit, are so qualified.

6On the basis of the foregoing, the employer acknowledges that if study room supervisors are performing the statutory duties of a teacher, it would be in violation of the Act and would be required to terminate the work assignment. It is the employer's position however, that this is an issue which should be left to the Minister of Education to resolve through the exercise of the powers conferred by section 10 of the Education Act, which states:

The Minister may,

(a) appoint such advisory or consultative bodies as may be considered necessary by the Minister from time to time;

(b) appoint as a commission one or more persons, as the Minister considers expedient, to inquire into and report upon any school matter, and such commission has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to such inquiry as if it were an inquiry under that Act;

7CUPE relies on the same provision, but takes the argument a step further. It says that the real issue in this case is whether the employer is contravening the Education Act, and that this issue is within the exclusive jurisdiction of the Minister of Education to resolve.

8The Board rejects both of these submissions. Dealing with the latter argument first, the Board's jurisdiction to deal with work assignment disputes is conferred by section 93 of the Labour Relations Act. In the language of that provision, the issue in this case is whether the "employer is assigning work to persons in a particular trade union [i.e. CUPE] rather than to persons in another [i.e. the OSSTFI": section 93(1)(b). The fact that the assignment may also constitute a violation of another statute does not deprive the Board of the jurisdiction conferred by section 93. Nor is there anything in the Education Act that purports to take that jurisdiction away.

9With respect to the former argument, section 93(1.1) of the Labour Relations Act states:

93.-(1.1) The Board may consult with the parties affected by the complaint to resolve any matter raised by the complaint or may inquire into any matter raised by the complaint, or may do both.

Pursuant to this provision, the Board has a discretion as to whether to inquire into complaints concerning work assignments - Presumably, this discretion would include the right to decline to do so where, for example, the issues raised by the complaint may be more appropriately dealt with in another setting by another decision-maker with greater expertise.

10That is not the case here. Section 10 of the Education Act empowers the Minister of Education to appoint such advisory or consultative bodies or commissions as he/she considers necessary or expedient. The Minister may also submit a case to the Divisional Court. However, there is no standing tribunal to deal with issues under the Education Act and there is nothing to suggest that the Minister would consider it appropriate to exercise the powers conferred by section 10 in this case, even assuming a request were made.

11The issues raised by this complaint relate to the tasks being performed by a group of employees, and the relationship of those tasks to the work claimed by the OSSTF pursuant to the recognition clause of the collective agreement. These are the kinds of questions which the Board has both the authority and expertise to resolve under section 93 of the Labour Relations Act. The fact that this may require the Board to consider the provisions of another statute does not restrict its ability to resolve the jurisdictional dispute -

12In this case, the applicant takes the position that the work in dispute goes beyond the definition of "teaching duties" in the Education Act. It claims the right to perform not only those duties but also certain ancillary duties which it alleges its members have traditionally performed. The employer and CUPE dispute not only the applicant's right to claim these ancillary duties, but also whether those or any statutorily defined "teaching duties" are actually being performed by study room supervisors.

13Having regard to this factual dispute, the Board will inquire into all of the duties that the OSSTF claims the right to perform that it says are now being performed by the study room supervisors.

14The parties have tentatively indicated a desire to call between sixteen and twenty-two witnesses. Given the mutual concerns of the Board and the parties for the expeditious resolution of this matter, and the Board's powers to both consult and inquire into the complaint, the Board hereby directs the applicant to file with the Board and the other parties a list of the various tasks it claims that its members have the exclusive right to perform and which it says are currently being performed by study room supervisors, the relationship of each task to the provisions of the Education Act and the collective agreement, the witnesses it intends to call, and a detailed outline of the evidence they are expected to give, not later than two weeks prior to the continuation of this matter. CUPE and the employer are hereby directed to respond to these claims, and to provide their own lists, of witnesses and detailed outline of evidence to the Board and the other parties within one week thereafter. Upon receipt of this material, the Board may confer with the parties and make such determinations as it considers appropriate.

15The following dates are available for the continuation of this matter: July 25 through July 27, 1994; August 2 through August 4, 1994; August 8 through August 10, 1994. The parties are directed to advise the Registrar, in writing, on or before Thursday, July 7, 1994 as to their available dates.