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June 14, 2017
ONTARIO COURT OF APPEAL CONFIRMS ONTARIO LABOUR RELATIONS BOARD MUST RESPECT LANGUAGE OF
COLLECTIVE AGREEMENT WHEN DETERMINING JURISDICITION
FILION.ON.CA/ONTARIO - COURT OF APPEAL CONFIRMS ONTARIO LABOUR RELATIONS BOARD MUST RESPECT
LANGUAGE OF COLLECTIVE AGREEMENT.
Greater Essex County District School Board and United Association of the Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, 2012 ONCA 482[i]
In a recent decision, the Ontario Court of Appeal determined that the Ontario Labour Relations Board (the "OLRB") cannot ignore the express terms of a collective agreement dealing with grievances and arbitration, including applicable timelines.
The grievance at issue began in July 2004 and involved an allegation that the employer school board had hired certain construction workers not covered by the Collective Agreement to do work within its schools. The union relied upon s. 133 of the Ontario Labour Relations Act (the "Act"), which allows a party to a collective agreement in the construction sector to refer a grievance to the OLRB for final and binding arbitration. However, the grievance was not referred to the OLRB until December 2004, more than four months beyond the 14-day time limit for referral of a matter to arbitration under the Collection Agreement. While the Collective Agreement provided for the extension of the timelines by mutual agreement of the parties, this had not occurred.
The OLRB Vice-Chair accepted the union’s submissions that the grievance referral mechanism in s. 133 of the Act constituted an entirely separate procedure from that of the normal grievance procedure within a collective agreement. Accordingly, the Vice-Chair held that the 14-day time limit within the Collective Agreement was directory only, and not mandatory. The Vice-Chair then concluded that he had the discretion to extend the timeline for the referral of the grievance to arbitration before the OLRB. He decided to exercise that discretion and hear the grievance. The Vice-Chair then decided the grievance in favour of the union.
The employer applied to the Ontario Divisional Court for a judicial review of, among other things, the Vice-Chair’s jurisdictional ruling. The Court concluded that the timelines within the Collective Agreement were mandatory, and took special note of the language of Articles 17.3 and 18.5 of the collective agreement between the parties. Article 17.3 provided:
any grievance … that has not been carried through Article 17-Grievance Procedure Clauses and in accordance with the time limits specified, or mutually agreed to, will be deemed to have been settled satisfactorily by the parties to the grievance.
The Divisional Court found that once this clause had been engaged, it effectively brought the grievance to a conclusion, leaving nothing to be referred to the OLRB. As a result, the Divisional Court reversed the Vice-Chair’s ruling. The union appealed this decision to the Ontario Court of Appeal.
Before the Court of Appeal, the union relied heavily on the language of s. 133 (1) of the Act, which provides that a grievance under a collective agreement may be referred to the OLRB "despite the grievance arbitration provisions in a collective agreement". The Court of Appeal rejected this argument, stating that it agreed without reservation with the Divisional Court’s conclusion that the Vice-Chair’s jurisdiction decision was unreasonable and could not stand.
The Court emphasized that s. 133 (1) of the Act exists to provide a useful forum for the prompt resolution of construction industry grievances, provided that there is, in fact, a grievance to arbitrate. The Court of Appeal cited past decisions of the OLRB, which held that where a collective agreement clearly provides that a grievance that is not processed in a timely fashion is deemed to be abandoned, the grievance effectively ceases to exist and is not therefore capable of referral to arbitration. The Court found that the Vice-Chair declined to follow this line of authority, and instead "invested the Labour Board with the wide open discretion to ignore or override the collective agreement". The Court continued at paragraph 58:
Thus, according to the Vice-Chair, the Labour Board has the authority to deal with any matters it likes, including past grievances deemed to have been settled under the collective agreement.
The Court found this departure from established OLRB jurisprudence was unreasonable, and concluded that there was no live grievance that could be referred to the OLRB under s. 133, pursuant to the terms of the Collective Agreement.
The decision of the Ontario Court of Appeal clearly establishes that s. 133 of the Act may not be used to disregard the established and agreed upon time limits contained within a Collective Agreement. Employers involved in the construction industry should take note and continue to follow the grievance referral time lines established within the applicable Collective Agreements.
When employers lose on a jurisdictional issue, they may be tempted to apply for judicial review immediately, prior to a decision on the merits. This decision reminds employers that frequently the better course is to wait for a final decision, and if it is unfavourable, to have all issues reviewed at the same time.
For further information, please contact Chris Sinal at 519-435-6006 or your regular lawyer at the firm.
Christopher A. Sinal
February 7, 2017
APCM Ontario Regulation AODA 429/07 send New Amendments Ontario Reg 165, New Accessibility, Ergonomics and AODA New Amendments compliance requirements are now law and mandatory - call to set up compliance meetings to reduce the risk of fines for non-compliance. APCM will offer on-line working at heights training starting April 15, 2017 which is mandatory. Working at heights training is also available onsite starting April 15, 2017. Mandatory fall arrest training is also available on-line 24/7 - mandatory sexual harassment training requirements available 24/7 on-line which meets the MOL requirements and is mandatory.
It is still winter, snow and ice can cause workplace injuries, ensure that snow and ice is removed from sidewalks, parking lots and entrances to all buildings.
It is a requirement in Ontario by the MOL mandatory under Section (11)
- A floor or other surface used by any worker shall,
(a) be kept free of,
(ii) hazards, and
(iii) accumulations of refuse, snow or ice and
(b) not have any finish or protective material used on it that is likely to make the surface slippery. R.0.1990, Reg 851, S 11.
APCM can also provide health and safety manuals with the necessary procedures to ensure the workplace is in compliance with the legal requirements set out by Governments across Canada. Call 905-891-3474 or email email@example.com. Call one of our health and safety representatives and ask to have free advice, and ask one of our resource people any question related tot he Ministry of Labour Industrial Construction Acts and Regulations.
IDEAS FOR PREVENTING HEAT STRESS
Heat stress can happen to us all
Hot temperatures combined with factors such as high humidity, hard physical work, loss of body fluids, fatigue or some medical conditions can put stress on the body’s cooling system. When this happens it can lead to a heat related illness or disability or even death.
Who’s at risk?
Heat stress can happen to anybody, even the young and fit, and heat exposure may occur in all kinds of workplaces. Industrial furnaces, bakeries, smelters, foundries and worksites with heavy equipment are significant sources of heat inside workplaces. For outdoor workers, direct sunlight is the main source of heat. In mines, geothermal gradients and equipment can contribute to exposure.
Controlling Heat Stress
Acclimatization – You should take a week or two to get used to the heat and allow your body to adjust. This is called "acclimatization". Be aware that if you are away from work for a week you may need to re-adjust to the heat.
Engineering Controls – Air-cooling systems, fans and insulating and reflective barriers around furnaces and machinery can help to reduce heat exposure and control workplace temperatures and humidity.
Administrative Controls – Ensure that there are appropriate monitoring and control strategies in place and be ready to take appropriate action for hot days and hot workplaces. To prevent heat stress, increase the frequency and the length of rest breaks and slow down the pace of work.
Don’t underestimate the hazards of heat stress. When it’s hot you need to drink a lot of fluids, dress appropriately and recognize the signs of heat stress. If heat exposure is an issue in your workplace you need to develop and implement policies to prevent heat-related illnesses.