Ontario Public Service Employees Union v. Regional Municipality of Hamilton-Wentworth, 2000 CanLII 13027

Ontario Public Service Employees Union et al v. Regional Municipality of Hamilton-Wentworth et al

1392-99-PS Ontario Public Service Employees Union et al, Applicants v. Regional Municipality of Hamilton-Wentworth, Responding Party v. Canadian Union of Public Employees and its Local 167, Intervenor.

1393-99-PS Ontario Public Service Employees Union et al, Applicants v. Regional Municipality of York, Responding Party v. Canadian Union of Public Employees and its Local 4900, Intervenor.

1395-99-PS Ontario Public Service Employees Union et al, Applicants v. Regional Municipality of Niagara, Responding Party v. Canadian Union of Public Employees and its Local 1287, Intervenor.

1397-99-PS Ontario Public Services Employees Union et al, Applicants v. Cochrane District Social Services Administration Board, Responding Party v. Canadian Union of Public Employees and its Local 4293, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: David Wright, Hilary Cook, Janet Holowka and Pam Smith for the applicants; no one appearing for Regional Municipality of Hamilton-Wentworth; Joy Hulton for the Regional Municipality of York; Daryn Jeffries for Regional Municipality of Niagara; Garry Bergeron for Cochrane District Social Services Administration Board; Brian Sheehan, Risa Pancer and Brian Atkinson for the intervenors.

DECISION OF THE BOARD; February 10, 2000

1These are four applications pursuant to subsection 37(10) the Public Sector Labour Relations Transition Act, 1997, (the “Act” or “PSLRT”) alleging violation of subsection 40(1) of the Act. Although the applications refer to subsection 40(1), the complaints are in fact about the alleged failure to comply with O. Reg. 10/99 made under that subsection. The complaint in each application is that the responding party violated the regulation by not giving former Crown employees seniority in accordance with the regulation.

2A consultation was held on December 9, 1999, and was confined to certain preliminary issues. The applications were heard together because they involve substantially similar issues.

3The applicant Ontario Public Service Employees Union (OPSEU) appeared on its own behalf and as a representative on behalf of individual applicants. The individual applicants are former employees of the Crown (and formerly represented by OPSEU as their bargaining agent) whose jobs were eliminated when responsibility for income maintenance (welfare) programs was transferred from the Ministry of Community and Social Services to the responding party employers. By agreement with OPSEU, the Crown was obligated to make reasonable efforts to help its employees find positions in the income maintenance programs of the municipal delivery agents. As a result of these efforts, some former Crown employees took positions with the responding parties. For convenience, these persons are referred to herein as “affected employees”. The style of cause in each application is hereby amended to add the individual applicants.

4This decision deals only with the preliminary issues. The parties agreed that factual determinations as to which individual applicants are actually entitled to the seniority protection in the regulation should be deferred pending resolution of the preliminary issues.

5In general terms, the two preliminary issues are as follows:

(a) Does the Board have jurisdiction to hear the applications?

(b) Do OPSEU or the individual applicants have legal standing to bring the applications?

6A third preliminary issue involves only the parties in Board File No. 1397-99-PS. The issue is whether or not the Cochrane District Social Services Administration Board is a “municipality”. If it is not a municipality, then O. Reg. 10/99 does not apply to the applicants in that application.

Statutory Provisions

7Subsection 40(1) of the Act is a regulation-making power. It states:

(1) The Lieutenant Governor in Council may make regulations,

(a) governing, in the case of a sale, lease or other disposition of all or part of a business by the Crown to a municipality, a local board of a municipality, a prescribed board with social service responsibilities, any band or person delivering social assistance, a person operating a hospital or to a school board, the determination of seniority for employees in a bargaining unit that includes employees employed by the Crown immediately before the sale, lease or disposition;

(b) governing how this Act applies with respect to employees of a predecessor employer who perform construction work and who, immediately before the changeover date, are in a bargaining unit with respect to which a construction union has bargaining rights;

(c) prescribing anything that must or may be prescribed under this Act;

(d) defining for the purposes of this Act or any part of it, any term or expression that is not defined in this Act;

(e) governing any matter necessary or advisable to carry out the purposes of this Act.

8Pursuant to clause 40(1)(a), the Lieutenant Governor in Council made O. Reg. 10/99. Section 1 of O. Reg. 10/99 states:

1. This regulation governs the determination of seniority for the following employees:

2. [employees of a person operating a hospital]

3. Employees in a bargaining unit of employees of a municipality if,

i. the Crown transferred all or part of a business to the municipality, and

ii. the bargaining unit includes an individual who, immediately before the transfer, was employed by the Crown in the transferred business and who, immediately after the transfer, was employed by the municipality in the transferred business.

9Section 2 of O. Reg. 10/99 states that each employee in a bargaining unit “shall be accorded seniority on the same basis as other employees in the bargaining unit” and then prescribes specific rules about the crediting of past periods of employment.

10The regulation was made by the Lieutenant Governor in Council following an agreement between OPSEU and the Crown dated January 20, 1999, which resolved a number of outstanding issues concerning Crown employees affected by the restructuring and privatization initiatives of the provincial government. Article 1.3.1 of the agreement states:

1.3.1 The Employer agrees to recommend to Cabinet that it make regulations pursuant to section 40(1) of the Public Sector Labour Relations Act 1997 [sic] providing that in the case of a sale, lease, or other disposition, of all or part of a business of the Crown to a municipality or hospital listed on Appendix A, where a bargaining unit at such municipality or hospital includes employees after the transfer, who were employed in the Ontario Public Service immediately before the sale, lease or disposition, those employees shall be accorded seniority on the same basis as other employees in the bargaining unit and, without restricting the generality of the foregoing,

a. If the Collective Agreement provides that seniority includes all periods of employment with the receiving employer, the employee’s seniority shall include all periods of employment with the receiving employer and all periods of employment in the Ontario Public Service.

b. If the Collective Agreement provides that seniority includes all periods of employment in the bargaining unit of the employer, the employee’s seniority shall include all periods of employment in the bargaining unit and all periods of employment in the Ontario Public Service in a position having duties, responsibilities and other attributes such that, if the employment were with the receiving employer, the employee would have been a member of the bargaining unit.

11The applicants submit that subsection 37(10) of the Act permits the Board to deal with a complaint respecting a violation of the regulation.

12Subsection 37(10) states as follows:

37. (10) Subsections 96(4), (6) and (7) and sections 122 and 123 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to proceedings before the Board and its decisions, determinations and orders.

13Subsection 96(4), (6) and (7) of the Labour Relations Act, 1995 state:

96. (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

(6) A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

14Sections 122 and 123 state:

122. (1) For the purposes of this Act and of any proceedings taken under it, any notice or communication sent through Her Majesty's mails shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail.

(2) A decision, determination, report, interim order, order, direction, declaration or ruling of the Board, a notice from the Minister that he or she does not consider it advisable to appoint a conciliation board, a notice from the Minister of a report of a conciliation board or of a mediator, or a decision of an arbitrator or of an arbitration board,

(a) if sent by mail and addressed to the person, employers' organization, trade union or council of trade unions concerned at his, her or its last‑known address, shall be deemed to have been released on the second day after the day on which it was so mailed; or

(b) if delivered to a person, employers' organization, trade union or council of trade unions concerned at his, her or its last‑known address, shall be deemed to have been released on the day next after the day on which it was so delivered.

(3) Proof by a person, employers' organization, trade union or council of trade unions of failure to receive a determination under section 96 or an interim order or direction under section 99 or a direction of the Board under section 100, 101 or 144, or a decision of an arbitrator or of an arbitration board including a decision under section 103 sent by mail and addressed to the person, employers' organization, trade union or council of trade unions at his, her or its last‑known address is a defence by the person, employers' organization, trade union or council of trade unions to an application for consent to institute a prosecution or to enforce as an order of the Ontario Court (General Division) the determination, interim order, direction or decision.

(4) Where a notice has been given under section 59 by registered mail and the addressee claims that he, she or it has not received the notice, the person, employers' organization, trade union or council of trade unions that gave the notice may give a second notice to the addressee forthwith after he, she or it ascertains that the first notice had not been received, but in no case may the second notice be given more than three months after the day on which the first notice was mailed, and the second notice has the same force and effect for the purposes of this Act as the first notice would have had if it had been received by the addressee.

123. No proceeding under this Act is invalid by reason of any defect of form or any technical irregularity and no proceeding shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

The Parties’ Submissions

15The intervenor Canadian Union of Public Employees (“CUPE”) submits that the Board does not have jurisdiction to decide these applications and that the applicants do not have legal standing.

16CUPE submits that only a trade union (with relevant bargaining rights) or an employer may apply to the Board for the determination of seniority-related issues. Such applications are made under specific sections (for example, sections 25, 29, and 35) that establish rights and obligations with respect to seniority, and the Board has the power to make specific kinds of orders or determinations. In CUPE’s view, the Act does not entitle an affected employee to apply to the Board. Counsel referred the Board to Central Park Lodges of Canada, [1990] OLRB Rep. Oct. 1373 (in which the Board determined that individual employees cannot bring “employee status” applications) and to The Canadian General Electric [1980] OLRB Rep.1179, (where the Board examined the exclusive role of a bargaining agent, and the relationship of individual rights to collective bargaining).

17CUPE also argues that the individual applicants would not have the right to intervene in an application under the Act by a trade union or employer (although there is no such issue in the present applications). Counsel referred to The Corporation of the City of Kingston [1999] OLRB Rep. Sept/Oct. 809 in which the Board refused individual employees the right to intervene in an application to determine whether certain employees were eligible to engage in a legal strike. (See also Beef Improvement Ontario Incorporated [1994] OLRB Rep. April 341)

18CUPE submits that an individual’s dispute about seniority should be resolved through the grievance process in the collective agreement. As the bargaining agent, CUPE would then determine how to handle the grievance.

19CUPE also submits that OPSEU is not the bargaining agent of the affected employees and therefore has no status to bring the application in its own name. OPSEU’s collective agreement with the Crown does not give it status.

20CUPE submits that subsection 37(10) only applies to proceedings over which the Board has jurisdiction. It argues that subsection 96(4) of the Labour Relations Act, 1995, (being cross-referenced in subsection 37(10) of the Act) does not give the Board jurisdiction because it is a procedural provision that does not create substantive rights. It argues that subsection 37(10) gives the Board power to provide relief in respect of proceedings before the Board but the Act does not give the Board broad remedial power to resolve other issues, such as the alleged violation of the regulation. Furthermore, it argues that the Board has no inherent jurisdiction to enforce the regulation.

21The responding party, Regional Municipality of Niagara (“Niagara”), argues that there is a “jurisdictional bar” because the Act and regulation only apply to certain events, as described in sections 3 to 9 and section 12, none of which pertains to the applicants. Although section 12 pertains to the “sale of business”, subsection 12(3) states that the seniority-related provisions in section 36 do not apply to a sale of business by the Crown. Niagara agrees with CUPE that neither section 40 nor subsection 37(10) gives the applicants the right to apply to the Board. The Act specifically identifies who may apply to the Board with respect to seniority issues, namely the bargaining agent and the employer.

22The responding party Regional Municipality of York asserts that the individual applicants are in the wrong forum. In its view, the grievance process under the collective agreement is the proper forum, and it submits that it would be open to a grievance arbitrator to interpret O. Reg. 10/99.

23OPSEU agrees that the facts in these applications are not an event described in sections 3 to 9 and section 12 of the Act. It submits that it is not necessary for the Board to find that there is a prescribed event under the Act. In essence, the regulation is a stand-alone provision. It argues that the Board has broad jurisdiction under the PSLRT and points to The Northwest GTA Hospital Corporation, Ontario [1999] OLRB Rep. March/April 293 as an example of where the Board made an order in the absence of express statutory provisions authorizing the order.

24In urging the Board to inquire into this matter, OPSEU relies on the fact that subsection 37(10) of the Act specifically incorporates subsection 96(4) of the Labour Relations Act, 1995, which deals with the filing of complaints and which is not restricted to trade unions and employers. OPSEU argues that the PSLRT names the Board (and not arbitrators or the Minister of Labour) as the overseeing body for the Act, and that it is not sensible to conclude that the trade union and employer can simply ignore the regulation. In OPSEU’s view, enforcement of the regulation by the Board is preferable to the grievance arbitration route which is dependant upon CUPE’s response and handling of the grievance and which could result in a “section 74 complaint” being filed with the Board. OPSEU argues that the individual applicants have standing because their seniority is affected by the employers’ alleged failure to comply with the regulation. OPSEU notes that “section 96” applications are not always restricted to employers and unions, and that individuals may complain about a violation of rights under, for example, section 72, 74 and 76 of the Labour Relations Act, 1995, although certain other complaints, such as the duty to bargain in good faith, are not available to individuals.

25OPSEU submits that the rights under O. Reg. 10/99 attach to individual employees, and notes that the regulation refers to “each employee”.

26OPSEU submits that it has standing to make these applications in its own name because of its interest, as the former bargaining agent for the affected employees, in ensuring compliance with O. Reg. 10/99. OPSEU negotiated the terms of exit from employment for the affected employees, along with the aforementioned Article 1.3.1. The regulation exists because OPSEU fought for it, and OPSEU wants to see it enforced.

Decision

27O. Reg. 10/99 governs, in part, the determination of seniority “of employees in a bargaining unit of employees of a municipality”. It states what seniority “shall be accorded” to the employees and prescribes certain rules for determining seniority. While it may be aimed at protecting transferred former Crown employees, the regulation appears to govern the seniority of all of the employees in the bargaining unit.

28Subsection 37(10) states that subsection 96(4) and certain other provisions of the Labour Relations Act, 1995 apply “with necessary modifications, with respect to proceedings before the Board and its decisions, determinations and orders.” The phrase “proceedings before the Board” refers to proceedings before the Board that are specifically contemplated and authorized by the Act, for example, an application under section 25, 29 or 35. In the Board’s view, subsection 37(10) applies to proceedings before the Board which exist by virtue of other substantive provisions of the Act. Subsection 37(10), just like subsection 96(4) of the Labour Relations Act, 1995, does not confer substantive rights. None of these applications is a proper proceeding before the Board simply by virtue of having been filed under subsection 37(10). Some other substantive and procedural mechanism must be identified to ground a proper proceeding before this Board.

29The Board’s interpretation is supported by the overall context provided by the other cross-references in subsection 37(10) to the Labour Relations Act, 1995. Subsections 96(6) and (7) deal with the enforceability of determinations and settlement agreements. Section 122 deals with notice-related matters and section 123 deals with technical irregularities. These cross-references deal with matters that are either procedural or relevant only to persons who have attained an outcome under the Act (that is, an order or settlement). They do not support the argument that subsection 37(10) is intended to be a vehicle for the provision of substantive rights in circumstances where there has been or is alleged to have been a violation of the Act.

30Although the seniority of individual employees is protected by the Act (in, for example, section 33 and O. Reg. 10/99), the Act does not give individual employees the right to apply to the Board for redress if a dispute arises. Nor does it provide any mechanism for this Board to (directly) enforce compliance with the regulation. Although the Board considers that the Act should be interpreted and applied in a liberal manner, to make it “work”, it has no inherent jurisdiction to inquire into and resolve the applicants’ complaints in the instant applications. It is not sufficient to argue, as OPSEU does, that the seniority rights in O. Reg.10/99 “attach” to individual employees, as opposed to an employer or bargaining agent. As the Board stated in Central Park Lodges (cited above), at paragraph 10: “Employee interest is not always sufficient to justify an independent right of action or review.”

31For the foregoing reasons, the Board has decided that the applications should be dismissed.

32In view of the foregoing, it is not necessary for the Board to decide the preliminary issue raised by the Cochrane District Social Services Administration Board in which it argues that O. Reg. 10/99 does not apply to its employees because it is not a municipality.

33The affected employees are not necessarily without recourse. Both CUPE and the Regional Municipality of York specifically alluded to the fact that the collective agreement grievance process may be available.

34The applications are dismissed.

“Anthony Brown”

for the Board