Ontario Public Service Employees Union v. Oshawa General Hospital, 1995 CanLII 9976

Ontario Labour Relations Board

[1995] OLRB Rep. June 846

3829-94-R Ontario Public Service Employees Union, Applicant v. Oshawa General Hospital, Responding Party v. Canadian Union of Public Employees and its Local 45, Intervenor

BEFORE: Laura Trachuk, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

DECISION OF LAURA TRACHUK, VICE-CHAIR, AND BOARD MEMBER KAREN DAVIES; June 30, 1995

1. This is an application for certification. In a decision dated February 22, 1995 the Board (differently constituted) certified the applicant on an interim basis for a bargaining unit partially agreed upon by the parties. At that time, there was an outstanding issue with respect to whether or not individuals in the position of biomedical engineer exercise managerial functions and are there­fore excluded from the bargaining unit. A Labour Relations Officer was appointed to conduct examinations with respect to that issue. At the first meeting with the Officer, the responding party, Oshawa General Hospital (hereafter sometimes referred to as "the hospital") took the position that the individuals in the biomedical engineer positions are engineers for the purposes of section 6(4) of the Labour Relations Act. In a decision dated May 1, 1995 the Board held that the individu­als in question are not engineers for the purposes of section 6(4) of the Act. These are the reasons for that decision.

2. Section 6(4) of the Labour Relations Act provides as follows:

6.-(4) Subsections (4.1) and (4.2) apply with respect to employees who are entitled to practise one of the following professions in Ontario and who are employed in their professional capacity:

1. Architecture.

2. Dentistry.

3. Engineering.

4. Land Surveying.

5. Law.

(4.1) A bargaining unit consisting solely of employees who are members of the same profession shall be deemed by the Board to be a unit of employees appropriate for collective bargaining.

(4.2) Despite subsection (4.1), the Board may include the employees described in subsection (4.1) in a bargaining unit with other employees if the Board is satisfied that a majority of the employees described in subsection (4.1) wish to be included in the bargaining unit.

3. The parties have agreed that the individuals in question do not hold licences to engage in the practice of professional engineering pursuant to the Professional Engineers Act, R.S.O. 1990 c.P. 28. For at least thirty years, the Board has required that individuals be licensed engineers in order to be considered engineers for the purpose of section 6(4) and its predecessors. The respond­ing party argues, however, that the most recent amendments to the Act should be interpreted as applying to a broader category of persons who may be described as "engineers". Prior to the recent amendments to the Act which took effect on January 1, 1993, section 6(4) provided as fol­lows:

A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective bargaining, but, the Board may include profes­sional engineers in a bargaining unit with other employees if the Board is satisfied that a major­ity of the professional engineers wish to be included in the bargaining unit.

At that time, persons in the professions of architecture, dentistry, engineering, land surveying and law were excluded from the Labour Relations Act. However, as of January 1, 1993, persons in those professions are included in the same manner as engineers were previously included.

4. The hospital argues that the phrase "employees who are entitled to practise one of the following professions in Ontario and who are employed in their professional capacity" must refer to a category of persons which is broader than the category described in the prior legislation as "professional engineers" because the legislature changed the phrase in the 1993 amendments. The hospital argues further that the two individuals in question are, in fact, entitled to practise the pro­fession of engineering, because the Professional Engineers Act contemplates unlicensed persons performing certain work which is within the practice of engineering in their capacity as employees under the supervision of a licensed engineer. The hospital further submits that the two individuals are qualified engineers under the Professional Engineers Act, except that they have not written the examinations required to obtain a licence.

5. The applicant argued that as the individuals in question are not licensed engineers, they cannot be considered engineers for the purposes of section 6(4) of the Labour Relations Act. The applicant denies that the amendments to the Labour Relations Act have expanded the category of persons included under section 6(4) of the Act.

6. The majority of the Board held that the biomedical engineers in question are not engi­neers for the purposes of section 6(4) of the Labour Relations Act because they do not hold a licence to engage in the practice of engineering pursuant to the Professional Engineers Act. As noted above, it has been the Board's approach since the 1960's to include engineers under section 6(4) of the Act only if they are licensed to practise engineering in the Province of Ontario. The Board does not agree that the 1993 amendments to the Act have expanded the category of persons who should be considered engineers for the purposes of that section. It is not the case that every change in statutory language must be interpreted as a change in meaning. In this case, it is appar­ent that the change was an effort to make the language of the statute directly reflect the Board's previous interpretation.

7. The Board's approach historically has been to require that an individual who is subject to section 6(4) be a member of the engineering profession who is entitled to practise in Ontario and is employed in a professional capacity. (See Falconbridge Nickel Mines Limited, [1966] OLRB Rep. June 167.) Therefore, rather than expanding the category of persons formerly recognized by the Board, the amendments have merely confirmed the Board's former practices.

8. Furthermore, the Board continues to have the same concerns with respect to the approach advocated by the hospital in this case as it has previously articulated. The hospital requests that the Board hear evidence with respect to the qualifications of the disputed employees to determine whether they would, but for the examination, be licensed engineers. We are also asked to embark on the exercise of determining whether the kind of work the biomedical engineers are doing is, in fact, work which would be considered engineering work under the Professional Engineers Act. We are asked further to interpret the Professional Engineers Act to determine whether or not it contemplates that persons other than licensed engineers may perform some kinds of engineering work. In Falconbridge, supra, the Board did hear some expert evidence with respect to these matters. After having experienced that process, the Board stated as follows:

9. Dealing with the first test, we are of opinion that the members of the engineering profession who are referred to in section 1(3)(a) are members of the Association of Professional Engineers within the meaning of The Professional Engineers Act. To determine otherwise would be to place the Board in a virtually impossible position as is readily apparent from the evidence called by the respondent. Both Mr. Sentance and Professor Langford referred to members of the small "e" and small "p" engineering profession who are recognized by them, not only because of the academic training of the persons in question but also because of the nature and extent of their practical experience which tests are personal things which they are able to assess because of their own experience and knowledge which is considerable. The evidence was that there was no objective test to apply to such persons and even the acceptability of the University where they studied is subject to the approval of the Association which also must accredit the course which is taught. It would be asking the Board to perform a virtually impossible function if the Board is asked to determine who is a member of the engineering profession without permitting the Board to accept the guidance of the Professional Engineers Act in that regard.

10. The second factor to be considered is that the person must be entitled to practise in Ontario. The first question to be asked with respect to this test is entitled to practise what? To have any meaning this test must be - entitled to practise professional engineering in Ontario. The profes­sional engineering must be professional engineering as defined by section 1(1) of the Profes­sional Engineers Act which is the statute enacted for the guidance of everyone. It is readily apparent from the evidence of the respondent's witnesses and from the reading of section 30(c) above referred to, and the Board's findings as set out above, that any employees who perform engineering work pursuant to and by virtue of section 2(e) of the Professional Engineers Act are not engaged in the practice of professional engineering within the meaning of section 1(1).

11. The last test is that the person be employed in a professional capacity. Again to give mean­ing to this test the "professional capacity" with relation to members of the engineering profes­sion must be to be the capacity of a professional engineer. For the reasons outlined above per­sons employed under and by virtue of section 2(e) while perhaps employed in their capacity with respect to some other profession are not employed in the capacity of professional engineers even though a professional engineer who is a member of the Association could properly be employed to perform the work described by section 2(e). A professional engineer who is a mem­her of the Association would perform such work as part of professional engineering as described by section 1(1) rather than pursuant to and by virtue of section 2(e) of that Act.

12. We are therefore of opinion that only "professional engineers" within the meaning of sec­tion 1(h) of the Professional Engineers Act who are members of, or engineers who are licensed by, the Association of Professional Engineers of the Province of Ontario who are entitled to practise professional engineering in Ontario, within the meaning of section 1(1) of that Act and who are employed in the capacity of a professional engineer meet all the requirements of section 1(3)(a) of the Labour Relations Act.

13. For all of the above reasons, the Board found that the individuals in question are not engineers for the purposes of section 6(4) of the Labour Relations Act. This determination was made after considering the written materials filed by the parties. There was some suggestion in the parties' written submissions that the Board should hear evidence with respect to this matter. Given the majority's view that the factual question of whether or not the individuals are licensed engi­neers in the Province of Ontario is determinative and is not in dispute, the Board found it unneces­sary to hear viva voce evidence with respect to this matter.