Rostrust Investments Inc. v. Canadian Union of Public Employees, Local 4266-05, Public Service Alliance of Canada and Treasury Board (Public Works and Government Services Canada)

Full Text

2005 PSSRB 1
Rostrust Investments Inc. v. Canadian Union of Public Employees, Local 4266-05, Public Service Alliance of Canada and Treasury Board (Public Works and Government Services Canada)

Before: Ian Mackenzie
Decision rendered: January 6, 2005

Successor rights — Sections 21, 41 and 49 — Contracting-in of maintenance services — Jurisdiction of the Board — General powers of the Board — Application alleged to have been made in bad faith and for improper purpose — No merger, amalgamation or transfer of jurisdiction — Whether employees had been employees of PWGSC all along — the applicant is the owner of an office complex and also provided management and maintenance services to the public servants working in the building until the tenant, PWGSC, advised that it would be taking over these services — for the purpose of providing these services to the building's tenants, the applicant employed various employees, including a group of unionized employees who were represented for the purposes of collective bargaining by CUPE — these employees had been certified under the Ontario Labour Relations Act (OLRA) — these employees were invited by PWGSC to apply for continued employment with PWGSC — many of the employees were hired by PWGSC pursuant to the Public Service Employment Act (PSEA) to perform either the same or similar duties — CUPE filed a grievance against Rostrust Investments Inc. pursuant to the collective agreement between it and Rostrust Investments Inc. — grievance claims notice, severance and termination pay — hearing was scheduled before an arbitrator appointed under the OLRA — hearing was adjourned pending the determination of this application — the adjudicator found that the "contracting-in" of maintenance services does not constitute a transfer of jurisdiction under the Public Service Staff Relations Act (PSSRA) — the employees in question were not employees of Treasury Board until such time as they were appointed pursuant to the PSEA — the Board is without jurisdiction to replace the applicant with PWGSC as the employer under the CUPE collective agreement, the Ontario Labour Relations Board certificate and the grievance as they are all governed by the OLRA — no jurisdiction to decide whether or not the maintenance operations were a "federal undertaking" as this jurisdiction belongs to the Canada Industrial Relations Board — Board unable to use its general powers under section 21 of the PSSRA to address the issues raised in the application as the Supreme Court of Canada has decided that similar provisions in other pieces of legislation do not confer autonomous powers on the Board to remedy situations for which there are specific powers prescribed elsewhere — lack of evidentiary foundation regarding allegation that the application was made in bad faith and for an improper purpose — employees in question had been treated as employees of Rostrust Investments Inc. and had been governed by a collective agreement negotiated by CUPE since 1993 — inappropriate for employer to wait for such an extended period before raising issue that goes to the very heart of the relationship between union and management — applicant without standing to make application under section 41 of the PSSRA — applicant also without standing to make application under section 49 of the PSSRA as there had been no merger, amalgamation or transfer of jurisdiction — PSSRA regime contains no provision for successor rights when a formerly provincial activity becomes governed by the PSSRA - no agreement or arrangement between the trade unions; therefore, the Board is without jurisdiction.

Application dismissed.