Common use of Sched Clause in Contracts

Sched. A,, (the “LRA”) s. 48 mandates that every collective agreement must provide for final and binding settlement of all differences between the parties arising from the “interpretation, application, administration or alleged violation of the agreement.” This section of the LRA confers a rights arbitrator or rights arbitration board with exclusive jurisdiction to resolve all disputes between the parties, which in their essential character, arise under the collective agreement. [29] Article 7 of the central terms of the collective agreements between the Hospitals and ONA contains a “Grievance Procedure.” The language found in Article 7 provides for certain grievances to be resolved by arbitration before a sole arbitrator (Article 7.10). All other grievances, including those agreed to be “central rights issues,” are to be resolved by a three person Board of Arbitration (Article 7.11). The decision of the arbitrator or Board of Arbitration will be final and binding upon the parties and the nurse or nurses concerned (Article 7.14). [30] There can be no doubt that we are not functus officio. We remain seized of the dispute referred to us and we have the jurisdiction to complete our statutory and agreed upon task of resolving all central issue disputes referred to us that require resolution in order for the parties to finalize the document that shall form the central portion of the individual collective agreements, see paragraph 1(g) of the Memorandum. However, our retained jurisdiction is not without limitations. We do not have the jurisdiction to amend or alter our June 8, 2020 Award or our November 1, 2020 Supplementary Award, see Brockville Psychiatric Hospital v. OPSEU, Local 439, supra, at paragraph 41. [31] We are of the view that this new issue or dispute is not a matter that we have jurisdiction to resolve or decide. While the current dispute may be related to our June 8, 2020 Award, it is not a central issue in dispute that was referred to us for resolution pursuant to the Memorandum. The central issues in dispute referred to us are referenced in our June 8, 2020 Award. The only dispute with respect to Article 14.06 that was referred to us for resolution was the ONA proposal to increase the premium to double time, and we have resolved that central dispute. [32] This new issue, in its essential character, is a matter of interpreting the central collective agreement language and not a matter of determining the contents or crafting the central terms. The new issue is not a dispute that requires resolution in order to implement our June 8, 2020 Award. The parties have agreed upon the specific language to amend Article 14.06, which gives effect to our June 8, 2020 Award. In addition, we have already addressed the issue of retroactive payment by requiring such payments to be made in accordance with Article 19.10 of the collective agreements. The June 8, 2020 Award is clear and concise and there is no need to clarify our manifest intention or craft any additional language to give it effect. [33] We acknowledge that a number of grievances have been filed claiming payment of the call back premium provided for under Article 14.06. The resolution of those grievances falls within the exclusive jurisdiction of a rights arbitrator or rights arbitration board appointed under the collective agreements. [34] In our view all of the decisions relied upon by the Hospitals are distinguishable from the facts before us and none of them stand for the proposition that an interest arbitration board has the jurisdiction to interpret the language of the collective agreement in order to fulfill their statutory mandate or task. [35] The Ontario Divisional Court decision in Brockville Psychiatric Hospital, supra, is clearly distinguishable from the matter before us. The Brockville Psychiatric Hospital, supra, decision arose in the context of a restructuring of two psychiatric facilities, the Royal Ottawa Hospital (ROH) with the Brockville Psychiatric Hospital (BPH). The interest arbitration board was addressing the contents or terms of a collective agreement arising from the restructuring. The issue that arose, after the initial award, related to the payment of pension and benefit premiums for employees on long-term disability (LTD). A clarification was sought with respect to which “current long-term disability plan” was awarded by the interest arbitration board. This was important because at BPH the employer paid the pension and benefit amounts for employees on LTD, while at ROH the employees on LTD were responsible for payment of pension and benefit amounts. The interest arbitration board clarified their manifest intention in a supplemental award, which the Divisional Court found “protected and honoured the stated objectives of the original award: pursuing compatibility with the ROH proposals in the context of the merger of services, while also attempting to protect the superior conditions of enjoyment enjoyed by the transferred employees.” In other words, it was necessary for the interest arbitration board to clarify which “current long-term disability plan” was being awarded so that the parties could enter into a collective agreement. [36] We have not been provided with any authorities that would suggest that an interest arbitration board can go beyond their mandate of determining the contents or terms of a collective agreement and encroach upon the exclusive jurisdiction of a rights arbitrator or rights arbitration board to address a matter relating to the interpretation, application, administration or alleged violation of the collective agreement. [37] What the Hospitals are really asking us to do, is journey into the realm of a rights arbitrator or a rights arbitration board to interpret Article 14.06 and determine how it is to be applied in certain specific circumstances. Such a dispute is clearly a matter that falls within the exclusive jurisdiction of a rights arbitrator or rights arbitration board. A number of grievances have been filed under the collective agreements and Article 7 provides for how those grievances shall be resolved by a rights arbitrator or rights arbitration board. In our opinion, the Hospital is asking us to expand our interest arbitration jurisdiction and cross over into the exclusive jurisdiction of a rights arbitration board, which in our view is not within our jurisdiction. [38] In terms of the specific conferral of jurisdiction found in the Memorandum to deal with any “implementation issues,” we note that the context of that agreement is a central interest arbitration process. The Memorandum does not expand our jurisdiction to somehow clothe us with the jurisdiction of a rights arbitration board. Rather, the Memorandum reflects the agreement for joint bargaining and the jurisdiction of this Board to determine the central provisions of the collective agreements between the Hospitals and ONA. The central issues are defined in the first paragraph and attached as Appendix “C”. The reference in paragraph 1(h) of the Memorandum clarifies that the Central Board of Arbitration has the full jurisdiction to deal with “implementation issues arising out of its award”. Our June 8, 2020 Award is limited to resolving the central issues in dispute that will be included in a document, which shall form the central portion of the collective agreements between each individual hospital and ONA. Paragraph 1(h) of the Memorandum does not extend or grant this Board the jurisdiction to act in place of a rights arbitrator to resolve a matter of interpretation, application, administration or alleged violation of the separate collective agreements between the parties. That jurisdiction is reserved to a rights arbitrator or rights arbitration board that would be appointed under the individual local collective agreements. In our opinion it would take much clearer language to provide this Board with the jurisdiction to interpret the central collective agreement language in a manner proposed by the Hospitals. [39] We recognize that the parties have come back before previous Central Boards. However, the issues addressed by previous Central Boards were all clearly matters of implementation and both parties agreed that those issues were to be resolved by the Central Board. There does not appear to be any cases that mirror the present circumstances before this Board, where we are being asked to embark upon interpreting the central collective agreement language to determine when a nurse would be entitled to the payment of the premium provided for under Article 14.06. [40] It is noteworthy that in the November 14, 2005 supplemental award between these parties, Arbitrator Xxxxxx only addresses issues arising from the implementation of his original award. Arbitrator Xxxxxx specifically provides in paragraphs 8-10 of his supplemental award that individual grievances may be filed with respect to the implementation of the “25 year rate” and they are to be examined on a “case by case basis and a determination made on the basis of the best evidence available.” This is similar to the issue before us where it appears that some grievances have been filed at certain hospitals with respect to whether the individual circumstances require the payment of the call back premium provided for under Article 14.06. In our view, Arbitrator Xxxxxx’x November 14, 2005 supplemental award is an example that supports XXX’s position that jurisdiction to deal with implementation issues arising out of a central interest arbitration award does not extend to deciding matters that would be within the exclusive jurisdiction of a rights arbitrator or rights arbitration board appointed to resolve a grievance. [41] In terms of the Bill 124 issue, we note that we have decided that the compensation limitations apply in these circumstances. We have accepted the Hospital’s costing. In our June 8, 20202 Award, we awarded ONA’s call back premium proposal, which fell within the Bill 124 compensation limitations, according to the Hospital’s costing. In our view there is nothing left for us to decide with respect to the application of Bill 124, unless the legislation is declared unconstitutional by a court of competent jurisdiction, or the legislation is amended, repealed or an exemption is granted. [42] The Hospitals assertion that their costing of the amendment to Article 14.06, which we awarded, may be inaccurate if their interpretation of the language is not accepted is speculative. While we appreciate the Hospital’s concerns about the uncertainty of the situation, we are in no position to address an issue based on speculation and grounded on a conflicting interpretation of the central language. As indicated earlier, the interpretation of collective agreement language falls within the exclusive jurisdiction of a rights arbitrator or rights arbitration board. [43] We are of view that based on the costings we were provided and the fact that we awarded an increase to a premium that may be contained by the Hospitals through appropriate staffing, our June 8, 2020 Award currently complies with the compensation limitations found in Bill 124. There is nothing in Bill 124 that provides us with the basis to make any further inquiry. Instead, if the Hospitals disagree with our award, then they may access the process under section 26 of Bill 124, which provides the Minster with the ability to address situations where collective agreements and arbitration awards may be inconsistent with the legislation. [44] We acknowledge that from a practical viewpoint it may make sense for us to resolve this dispute. The parties are free to invite us to resolve this dispute if they are so inclined. However, jurisdiction to resolve a dispute under a collective agreement is not conferred by practicality, it is conferred by statute or agreement. As indicated earlier our jurisdiction flows from the HLDAA and the Memorandum that places all central issues in dispute before this Board. We only have the jurisdiction to resolve the central disputes and deal with implementation issues arising from our award. The parties did not agree in the Memorandum, or otherwise, that we have the jurisdiction to interpret the central language and determine rights under the collective agreements. The jurisdiction to interpret language and rights under the collective agreements is within the exclusive jurisdiction of a rights arbitrator or rights arbitration board. [45] Therefore, after carefully considering the parties’ submissions we find that we do not have jurisdiction to resolve the dispute with respect to the interpretation of Article