2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

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- 20 -Employer’s proposal which, in its view, “is seeking to transfer bargaining unit work toindividuals they [the Employer] believes to be third parties…..”, does not result in the partiesbeing back before the Board, once again arguing whether the persons doing this work areindependent contractors, dependent contractors or employees. It asserts that the Employer’sregulatory proposal involves only “slight modifications” from the situation that existed before.The Union is concerned that unless the Board acts through its remedial powers to prevent thissituation through a prospective order that transcript production is bargaining unit work, labourrelations mischief will ensue with a never-ending trip to the GSB to re-litigate essentially thesame issue, creating a vicious cycle of litigation , expense and frustration. The Union points tothe Employer’s proposal that the Court Reporters “will continue to function as independentcontractors” to demonstrate that the Employer’s proposal is simply a repetition of what existedbefore, and completely ignores the Board’s determination in Hunt that this was the work of theCourt Reporters as employees, not independent contractors.[49] The Union submits that it was exactly this type of situation that arose in the Andersoncase, supra, leading to the Court’s conclusion that “[t]he power to require management to createa proper classification includes the power to require management to get it right.” Likewise, here,the Union asserts that the Board has the remedial power to make sure the Employer gets it right.In support of its contention that, in appropriate cases, a board of arbitration may orderprospective relief, the Union also cites to Re Polax Tailoring Ltd. and Amalgamated ClothingWorkers of America (Collective Agreement Grievance) (1972), 24 L.A.C. 201 (Arthurs); SamuelCooper & Co. Ltd. and International Ladies’ Garment Workers’ Union et al. [1973] 2 O.R. 841(Ont. Div. Ct). It also cites to a number of cases where the GSB ordered the Employer to take
- 21 -affirmative action, including OPSEU (Union Grievance) and Ontario (Ministry of CommunitySafety and Correctional Services) (2004), GSB No. 2002-0163 (Briggs); OPSEU (ThompsonGrievance) and Ontario Ministry of Correctional Services [2002] O.G.S.B.A. No. 14 (Harris).[50] The Employer counters that the new model contains “major modifications” – not minorones - and that the Employer has learned from the factors considered in the Hunt decision indeveloping its plan. It contends that the facts would be entirely different and would requiresubstantial new evidence. It asserts that in that situation, a new grievance must be filed. Itcontends that it would be improper for the Board to rule, through its remedial power in Hunt, ona completely new fact situation. In support, it cites to Re Algonquin College and OPSEU Local415 (Workload Information Grievance) [2007] O.L.A.A. No. 621 (Slotnick); Re ImperialTobacco Canada Ltd. and Bakery, Confectionery, Tobacco Workers and Grain Millers, Local364T (Potvin Grievance)[2000] O.L.A.A. No. 779 (Keller); Re Elgin Abbey Nursing Home,supra; Re OPSEU (Ranger) and Ontario (Ministry of Community Safety and CorrectionalServices) (2006), 156 L.A.C. (4 th ) 282 (Leighton). In Colonial Furniture (Ottawa) Ltd. andRetail, Wholesale & Department Store Union, Local 414 (1995), 47 L.A.C. (4 th ) 165, 177(Lavery), the arbitrator, in considering the scope of his remedial authority, held that “there mustbe a clear link, an obvious nexus or a rational relationship between the breach of the collectiveagreement, its consequences and the remedy order by the arbitrator and, further, the remedy mustnot be punitive.”[51] The Employer’s statement in its proposal that Court Reporters would “continue tofunction as independent contractors” was a truly unfortunate choice of words. It certainly
Page 4 and 5: - 4 -prospective remedies. In parti
Page 6: - 6 -[13] I conclude that the July
Page 10 and 11: - 10 -[22] What this means - as req
Page 12 and 13: - 12 -the Divisional Court of Ontar
Page 14 and 15: - 14 -[32] Following Re Courtney, t
Page 16 and 17: - 16 -The Employer’s plan raises
Page 18 and 19: - 18 -[43] Similarly in Re Western
Page 22 and 23: - 22 -appears, as the Union asserts
Page 24: - 24 -[57] Accordingly, for the rea

2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

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