the other is three point ten what the lower deciders did here was focus on three point and to essentially give the arbitrator or the arbitrated took upon himself the that it would need to be exhausted this committee at least that was the arbitrary arbitrators determination and and if the arbitrator can determine our future ability which i think it can be by virtue of the fact that the arbitration rules or were incorporated into into the arbitration agreement why isn't why is that the end of that it isn't the end of the matter because what the arbitrator did was clearly wrong you just looked the rewrote the agreement by nullifying the effect of three point one zero zero one what the what south side did here was perth preserve its authority to make these kinds of decisions that are forwarded to one of the you're saying that south side has the right to preserve its right to force nurses to do non nursing duties but as i read the c b s they don't have to do that and they have an arbitration right to contest that's what the lower court said but the lower court was wrong because a lower court i know i know your view is it wrong that's where you were in that seat i'm going to explain why they're wrong your honor what what what judge saber did was overlook the rest of article three point zero one in subsection b which sets forth specific functions that the committee is  empowered to deal with so that the hospital can then make decisions about their recommendations what what's important right three point plan doesn't mean anything three point ten which is the thing that says you know nurses don't have t list the kinds of non duty for a non nursing functions then three point zero one can deal with as a remedy that's what three point turn was designed to do is indicate that the hospital does indeed recognise that there are no us no nursing functions that it should avoid assigning to the nurses but that's all it does is list those so what do you do you go to three point zero one to rectify whatever might be was hypothetically the nurses had not begun yet the had not made a committee recommendation but simply started a grievance with the arbitrator have had jurisdiction to not convened their committee and made the proposal with respect in our nursing duties to the to the to the management which rejected it if instead of doing that they had just started away his authority to decide the grievance if it's focused on no nursing duties as it was here but he went ahead and assumed that he did  non nursing duties and the nurses have a dispute they don't agree with management about non nursing duties so they go to an arbitrator which it seems we have a right to do and the arbitrator decides  both parties this issue is critical to both parties it's hotly contested in the in the health care industry the hospitals want to keep the power question the the three point zero one that you're you're painting your argument on talks about functions and it says that the committee's going to analyze factors that facilitator impede the practice of nursing and make recommendations with regard to the same for example ok and then  very broad categories but those are just illustrations so in other words the committee can opine just about anything that has to do with nursing it seems to me which would effectively make based on your reading make the arbitration ali right because as long as it's within the scope of what the committee can make recommendations about can't be arbitrated that's what the other side orders but i say that this is very discreet and specific three point zero one example well that's right but it's it's has to do with assignment of duties to nurses that's what three point ten and three point zero one are designed to deal with not anything else in the agreement it wouldn't had anything to do with wages for example it wouldn't have anything to do with since for example they can opine on whatever they want that's what do with nursing right no your honor just because it exemplifies something it means that that's what's important and it is important to the hospital to keep that authority prospectively to keep the authority to ultimately determine what kind of assignments it's going to make turner says in terms of their functions but what happened here was an arbitrator took over that function so we're going to have to if we that if that award is if the hospital has sovereign power to decide whether they need the committee of nurses  committee because the committee is comprised of nursing staff the hospital wanted to hear you know what the committee recommended that the hospital rejected it not in this case in this case the committee never went forward because the union instead ran to the arbitrator first the the the the union actually admitted that it is going to propose that they do not understand duties and that a mop the floor we don't know but that's what arbitration process recommendations of the nursing committee that's in fact it's only the director of nursing is response to those so this is an advisory committee made up entirely of nurses with management acting as a consultant and they're just job is to make a recommendation management's free to accept or reject it's not carte blanche to swallow anything else in the contract that happens to touch on any of these other subjects i would point out that three point zero five in the same section deals with staffing and has its own specific binding arbitration procedure with respect to staffing guidelines so it can't be the case that the reference to staffing in the three point zero one b two means that recommendation that the committee is the sole authority to deal with staffing in the arbitrator has no arbitrator found is a command nurses should not be required to do none or sing functions regularly that's a specific command that's simply in the joints there isn't there i mean isn't that professional question as to what would be nursing duties would not be using duties that could vary from hospital to hospital as well that's correct and that would be if the the arbitrator would have been within his rights to say for instance the word should here means this is advisory and that that this is not a binding command he would have been within his rights to say no is not the duties that you're showing you know going to the pharmacy i actually think those are nursing duties based on the evidence but he didn't he's interpreted in the contract that the parties agreed to says nurses should not be required to regularly there's all he could have said i don't think there regularly required to do that so that's that's what arbitrators that's their function is to deal with some of the play in the joints as your honor puts it and it's not the court's role respectfully to be reviewing the substance of the arbitrator's award so what south side has come up with is this argument that this was an arbitrary well under section three point zero one and i believe if you read the plain language there were the only things excluded is a recommend is a response of management to a recommendation from the committee that cannot be arbitrat that your honor i frankly do not know that you know presumably the examples listed here or there are the kind of things that they deal with but i would also add that it makes sense why the parties would agree that this should not be these recommendations should not be arbiter but because the committee is completely nies so if not as a nurses can come up with a recommendation to direct the administration says no we're run counter to the idea that they're making recommendations and not making recommendations they're insisting on something and then then that would have to go to arbitration and you know that so that runs against the concept of the committee correct you or that i agree your honor and that's that's why this specific process is not arbitrary but it does not swallow the remainder of the contract and so unless your honour's have further questions of rest of my papers this notion that three point zero one can resolve any old dispute under the rayment is doesn't make any sense because it specifically refers to nursing practices pacifica the hospital of concerned with a hospital including making recommendations with regard to nursing involvement in non responsibilities that is the precise issue before this court whether it was proper for the arbitrator to take that on or whether it was best to be left to the committee hospital process the way it was negotiated if if there were some other issue in front of the arbitrator other than non nursing care one could argue to an arbitrator look this is in orbit trouble here because it's not one of the items that relate to this is simon of nursing functions now if the union thinks and it's speculative what it means is that any old grievance could be therefor e sidestepped on this basis they can make that or you went to an arbitrator the arbitrator can decide i would suggest to your honor's as to what would be included in a nursing care and and what wouldn't be and i would say there it's awfully hard to give you a hypothetical the hospital asks the nurses to mop the floors their committee says this is really not right this is not this is a not nursing function the management says well no we don't agree we we think it is according to you they don't have any right to grieve that they don't have any right to seek an arbitrator's view the management you laterally recommend that the way we would actually happen here is the nurses would not be sought to mop the floor that wouldn't be very smart on the part there's a duty that's right but it's a it's a type of nursing degree that would never happen it's very speculative that it would and one would want and if the union doesn't like it if the unit now is being told to mop the floors the remedy is to go back to the bargaining table and make that impossible for the administration to order then they might floors that's right but that's the way the language is your honor that's what the parties are in  compromise bargain for and they didn't take care of the mopping the floor problem because they know it never happens thank you thank you we will reserve decision this time