Canadian Union of Public Employees et al. v. The Queen in right of New Brunswick, [1982] 2 SCR 587

Supreme Court of Canada

Canadian Union of Public Employees et al. v. The Queen in right of New Brunswick, [1982] 2 S.C.R. 587

Date: 1982-11-02

The Canadian Union of Public Employees and The New Brunswick Council of Provincial Institutional Unions (Local 1251) Appellants;

and

Her Majesty in Right of the Province of New Brunswick as represented by Treasury Board Respondent.

File No.: 16788.

1982: October 19; 1982: November 2.

Present: Laskin C.J. and Ritchie, Dickson, Estey, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Labour relations—Public service—Collective agreement—Applicability of certain contract clauses to summer students—Effect to be given words “employee” and “person” as used in those clauses—Effect of Public Service Labour Relations Act on agreement—Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, ss. 30, 32(c), 35.

The articles in a collective agreement dealing with union dues check-off and with the entitlement to wages for work as outlined in a schedule contained the word “person” and its plural. Appellant contended that those provisions applied to summer help because of the use of that word, even though it did not consider summer help to be “employees” as defined in the collective agreement and the Public Service Labour Relations Act. The summer help were neither members of the bargaining unit as represented by the union nor did prospective members of the union qualify as employees within it.

Held (Estey J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Dickson, McIntyre, Chouinard and Wilson JJ.: The word “person” used in the articles of the agreement under consideration referred to prospective employees and did not include those, like summer students, who did not or would not qualify as employees. Had “employee” or “employees” not been so precisely defined both in the Act and the agreement, there would have been more flexibility to subsume the summer help in the agreement. This flexibility is unavailable as the collective agreement “applies

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to and is binding on the Union, the employees, the Employer and its Agents”.

Per Estey J., dissenting: This agreement created rights that related to the performance of work by students under the collective agreement and that were enforceable by the bargaining agents. Hired on a casual basis and not eligible to become an “employee” until attached to the work force for a set length of time, students fell within the definition of “persons” and had entitlements, i.e. reflected rights in that those rights were subject to enforcement through action by the bargaining agent. The collective agreement so construed was authorized by the Public Service Labour Relations Act. It is the employer’s obligation to effect the mechanics of deducting and remitting union dues, given that that obligation is legal.

APPEAL from a judgment of the New Brunswick Court of Appeal (1981), D.L.R. (3d) 202, 36 N.B.R. (2d) 394, 94 A.P.R. 394, upholding in certiorari proceedings a decision of the Public Service Labour Relations Board. Appeal dismissed, Estey J. dissenting.

David Brown, for the appellants.

Richard Speight, for the respondent.

The judgment of Laskin C.J. and Ritchie, Dickson, McIntyre, Chouinard and Wilson JJ. was delivered by

THE CHIEF JUSTICE—The issue in this appeal, which is here by leave of this Court, is, whether the appellant Canadian Union of Public Employees, Local 1251, may apply art. 4.01(a) and art. 21.11 of its collective agreement with the respondent in respect of summer vacation relief staff, students engaged by the respondent to do work falling within the schedules listed in the collective agreement.

Article 4.01(a) deals with a deduction of Union dues in the following terms:

4.01 (a) The Employer shall deduct from the wages due to every employee or person covered by this Collective Agreement an amount equal to the dues of the Union

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commencing with the month following the month which he was employed.

Article 21.11 reads as follows:

21.11 Entitlement to Wages in Schedule “A”—All persons hired to perform the duties of positions listed in Schedule “A” of this agreement shall be entitled to the wages in Schedule “A”.

It is common ground that the summer vacation relief staff are not members of the bargaining unit represented by the Union nor, as I will point out later, are they prospective members of the bargaining unit who may qualify as employees within it. It is also common ground that nothing in the collective agreement precludes the respondent Treasury Board from engaging summer vacation relief help and, indeed, there is nothing in the collective agreement to preclude the Board from contracting out its work, this being envisaged as possible by s. 6(2) of the Act and art. 26.01 of the collective agreement.

Although the Union does not regard the summer help as “employees”, as that term is defined in the Public Service Labour Relations Act, R.S.N.B. 1973, s. P-25, and in the collective agreement, and does not regard such persons as entitled to invoke the general run of provisions of the collective agreement or to be protected in any general way by its terms, it does insist that the inclusion of the word “person” in art. 4.01(a) and in art. 21.11 supports the claim for a dues check-off and supports the Union’s right to oblige the Board to pay the collective agreement wage scale to the summer help. The Union regards this as a form of Union security to protect it from being undermined and attenuated if the Board can fix summer help wages outside of the collective agreement prescription.

I should say at once that if art. 4.01(a) and 21.11 are read alone, the Union should succeed and its appeal from an adverse decision of the New Brunswick Court of Appeal should be allowed. The difficulty that the collective agreement raises—and I may say that I find it a curious

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agreement in the dissociation of the two provisions relied on by the Union—is that it must be read in context, and that throws us back to the Public Service Labour Relations Act as well as to the collective agreement. On this assessment of the case, the Union must fail and this does not mean reading the word “person” out of the two articles upon which it relies. Clearly, there is no other reliance, and the question is whether they are themselves alone to carry the Union’s contentions. For the reasons which follow, I think not, however sympathetic I may feel to the Union’s position.

There was some suggestion by counsel for the Board that the Union was seeking to rely on the collective agreement as being a voluntary one but counsel for the Union disavowed such a construction. Being remitted, therefore, to regarding the collective agreement as one statutorily prescribed pursuant to the Public Service Labour Relations Act, the Union contended that there was nothing in the Act which precluded the inclusion in the collective agreement of “person” or “persons” in art. 4.01(a) and 21.11 and with the consequences upon which it founded its case and its appeal here. That would be well enough if the language of the collective agreement was in that respect and otherwise compatible with the Act.

I turn to a number of relevant terms of the Act. “Bargaining agent” and “bargaining unit” are in these terms:

“bargaining agent” means an employee organization

(a) that has been certified by the Board as bargaining agent for a bargaining unit, and

(b) the certification of which has not been revoked;

“bargaining unit” means a group of two or more employees that is determined, in accordance with this Act, to constitute a unit of employees appropriate for collective bargaining;

“collective agreement” is defined as follows:

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“collective agreement” means an agreement in writing entered into under this Act between the employer on the one hand, and a bargaining agent on the other hand, containing provisions respecting terms and conditions of employment and related matters;

Then we come to the definition of “employee” which, so far as relevant here, reads:

“employee” means a person employed in the Public Service, other than

…

(d) a person not ordinarily required to work more than one-third of the normal period for persons doing similar work,

(e) a person employed on a casual or temporary basis, unless he has been so employed for a continuous period of six months or more,

…

The collective agreement adopts the same definition of “employee” in art. 29.01 where it is in these words:

29.01 Employee—In the Agreement “Employee” means a person in the bargaining unit other than:

(a) a person not ordinarily required to work more than one-third (1/3) of the normal period for persons doing similar work.

(b) a person employed on a casual or temporary basis, unless he has been so employed for a continuous period of six months or more.

The Act authorizes an employee organization—a term defined in the Act—to apply for certification as bargaining agent for a unit of employees. The Act does not refer to a Union. Certification depends on the determination of the Public Service Labour Relations Board, pursuant to s. 30 of the Act, that a group of employees for which certification is sought constitutes a unit appropriate for collective bargaining. The Board must also be satisfied, pursuant to s. 32(c) of the Act, that at the date of the application a majority of employees in the bargaining unit wish to be represented by the employee organization. Under s. 35, upon certification the employee organization has the exclusive right to bargain collectively on behalf of the employees in the bargaining unit and to represent, in accordance with the Act, an employee in the

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presentation or reference of a grievance to adjudication relating to the interpretation or application of a collective agreement or arbitral award applying to the bargaining unit to which the employee belongs.

It is under these provisions that the Union obtained certification, as its concluded collective agreement with the Treasury Board states in art. 1.01 thereof. The process and its consummation are both geared to representation of employees.

The collective agreement recognizes the Union under art. 1.01 as the sole and exclusive bargaining agent for all employees for whom it has been certified under the Public Service Labour Relations Act. The terms and conditions of employment specified under the Act, as mentioned in the preamble are those “affecting employees covered by this Agreement”. If the word “employee” or “employees” had not been so precisely defined, both in the Act and in the agreement, there would be more flexibility in subsuming summer relief help within the agreement. As matters stand, such flexibility is unavailable when, as in art. 1.04, the collective agreement “applies to and is binding on the Union, the employees, the Employer and its Agents”. Awkwardness arises from the occasional reference to the word “person” and “persons” and this must be addressed; the word does not appear in the Act other than by way of definition and exclusion when defining “employee”.

Article 29.10 of the collective agreement defines “person”, but in a qualified way as follows:

29.10 Person—In this Agreement is any person who has been hired to do the work of a nature normally performed by members of the bargaining unit and who has not obtained the status of employees as defined in 29.01 of this Article.

Also relevant is art. 30.03 entitled “Status Employee” which is identified in these terms:

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30.03 Status Employee—A person who has attained the status of employee as defined under Article 29 shall receive all rights and benefits under this agreement retroactive to date of employment. The parties agree that the status of the aforementioned employee shall be equivalent to the status of employees covered by the foregoing Article 30.01(b).

It is also helpful to bring into account certain provisions respecting probationers as specified in art. 30.01(a) and (b), art. 30.02 (a) and (b) and art. 30.04 and 30.05. They read:

30.01 (a) An employee appointed to the Civil Service shall be on probation from the date of his appointment to the Civil Service for a minimum period of six months immediately following the date of appointment. The Probationary Period may be extended by the Deputy Minister of the appropriate department for two further periods of three months each but the total probationary period shall not exceed twelve months from the date of appointment.

(b) For all employees covered by this collective agreement and not subject to the Civil Service Act the probationary period shall be one hundred and twenty (120) working days from date of hiring. Such period may be extended by the Department Head for two further periods of sixty (60) working days each but the total probationary period shall not exceed two hundred and forty (240) working days from the date of hiring.

30.02 (a) The employment of an employee may be terminated at any time during the probation period without recourse to the Grievance Procedure except as provided under the Public Service Labour Relations Act.

(b) During their probationary period employees shall benefit from all of the provisions of this collective agreement with the exception of the grievance procedure in the case of termination as stated in 30.02(a).

…

30.04 When the probationary period of an employee covered by the foregoing Article 30.01(a) or 30.01(b) is extended beyond six months or one hundred and twenty (120) working days, he shall be notified in writing of such extension.

30.05 The effective date of any termination of employment during the probationary period shall not be a date that falls beyond the expiration of the probationary period.

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There is no doubt that the reference to persons as those who may become employees (on being so qualified) and who are then given retroactive recognition as employees is not very artistic but its meaning is plain. The definition of “employee” contemplates that there may be persons engaged who did not immediately qualify as employees because they must satisfy a probationary period. There are those who, like the summer relief staff here, are not considered to be even prospective employees because of the short duration of their work. However, those on temporary work will, if it continues for six months or more, be entitled to employee status and to retroactive benefits applicable to employees, as prescribed in the collective agreement. This helps to explain that provision of art. 4.01(a), so much relied on by the Union, which mentions “person” but the mention is in relation to “every employee or person covered by this Collective Agreement”. The concluding underlined words illuminate the meaning of “person” when taken in the context of art. 29.01, 29.10 and 30.03.

It follows, in my view, from the terms of the Act and from their translation into the collective agreement that the word “person”, in various articles of the collective agreement in which the word appears, refers to prospective employees and does not include those who, like the summer relief students in this case, do not and will not qualify as employees.

The appeal must, accordingly, be dismissed with costs.

The following are the reasons delivered by

ESTEY J. (dissenting)—This appeal originated in certiorari proceedings brought in the Court of Appeal of the Province of New Brunswick by the appellant-Union to quash a decision of the Public Service Labour Relations Board of the Province of New Brunswick. The appellant had applied to that Board for an order requiring the respondent-employer to pay scheduled wage rates to students employed by the respondent and to deduct therefrom union dues all as provided in a collective

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agreement entered into between the parties pursuant to the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25.

The arbitrator concluded that the applicable provisions of the collective agreement and the statute dictated that the respondent-employer pay the students on the same scale as other workers (to use a neutral term) doing the same work, and to effect deductions of union dues or the equivalent from such pay in the same manner as in the case of employees within the bargaining unit. He decided, however, that he was bound by an earlier decision of the New Brunswick court involving the same parties, facts and collective agreement, and accordingly ruled that the employer was not obligated to pay such wages or to deduct union dues with respect to students.

There is no issue between the parties as to the appropriateness of the remedy of certiorari as herein sought by the appellant, and it is agreed by the parties that the hiring of students by the employer is not contrary to either the collective agreement or the statute, and that ‘the students’ are not ‘employees’ within the meaning of the collective agreement.

Whether the order of the Board may be quashed must be determined in two stages: first, does the collective agreement require the employer to pay the students on the pay scale prescribed in the collective agreement; and second, if the answer to the first question is yes, are the terms of the collective agreement in question authorized by the statute?

The two articles of the collective agreement are:

21.11 Entitlement to Wages in Schedule “A”—All persons hired to perform the duties of positions listed in Schedule “A” of this agreement shall be entitled to the wages in Schedule “A”.

4.01 (a) The Employer shall deduct from the wages due to every employee or person covered by this Collective

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Agreement an amount equal to the dues of the Union commencing with the month following the month which he was employed.

As both provisions refer to payments to “persons”, art. 29.10 is relevant:

29.10 Person—In this Agreement is any person who has been hired to do the work of a nature normally performed by members of the bargaining unit and who has not obtained the status of employees as defined in 29.01 of this Article.

Because of the definition of “employee” it is clear that students are not included in that term:

29.01 Employee—In the Agreement “Employee’ means a person in the bargaining unit other than:

…

(b) a person employed on a casual or temporary basis, unless he has been so employed for a continuous period of six months or more.

The collective agreement expresses itself as applying to the parties in these terms:

1.04 Application of Agreement—This Agreement applies to and is binding on the Union, the employees, the Employer and its Agents.

No mention is made of “person” in this provision.

The principal submission of the appellant-Union is that art. 21.11 and 4.01 are provisions essential in the agreement to promote the security of the bargaining unit and the employment of the employees therein comprised without fear of erosion by the engagement of persons on a casual basis. It is urged that but for such a defensive provision it would be open to the employer to seriously erode the unit by replacing the regular work force by students who could be paid wages below those imposed on the employer in the case of regular employees. The bargaining agent could likewise be financially weakened were it to be required to represent the interests of the employees comprised in the bargaining unit but without financial support by way of union dues collected from temporary workers doing the work of the bargaining unit.

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The essence of this collective agreement as it relates to the engagement of students can be summarized as follows. Article 29.10, supra, defines a “person” as one who “has been hired to do the work of nature normally performed by members of the bargaining unit and who has not obtained the status of…” an employee. Obviously the definition contemplates an individual who is not an employee of the employer but who has some connection with the collective agreement. That connection must be at least two-fold: first, the individual must have been hired to do the work of a member of the bargaining unit; and second, the individual may not be included in the definition of employee. We can eliminate art. 30 relating to probation as an explanation of who this person may be who is not an employee because art. 30 in all its subdivisions describes the person hired on a probationary basis as an “employee”. Indeed, art. 30.02(a) provides that the “employment of an employee may be terminated at any time during the probation period….” Some guidance is given by art. 30.03 which provides that:

30.03 Status Employee—A person who has attained the status of employee as defined under Article 29 shall receive all rights and benefits under this agreement retroactive to date of employment. The parties agree that the status of the aforementioned employee shall be equivalent to the status of employees covered by the foregoing Article 30.01(b).

Since a worker who has been hired on a probationary basis is an “employee”, the only “person” who may attain the status of employee as defined under art. 29 is a worker who is employed “on a casual or temporary basis” for a continuous period of six months or more. Such a worker ceases to be a “person”, as that term is defined in art. 29.10, upon attaining the status of employee as defined in art. 29.01. Upon ceasing to be a “person” and becoming an employee, the worker is granted all rights and benefits under the agreement retroactive to the date of employment. This would not, of course, affect any rights or benefits under the agreement to which a “person” who has not become an employee was entitled. It merely supplements the rights and benefits to which a worker who ceases to be a “person” and becomes an employee is entitled in his status as an employee.

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That takes one to art. 21.11, supra, which says in part: “All persons hired to perform the duties of positions listed in Schedule “A”…” which relate to the positions of employees performing the work of the bargaining unit. Therefore, it is clear that whoever the individuals are who fall into the definition of “persons” they are entitled to payment of wages on the same scale as employees. Article 21.11 cannot refer to employees because their wage rates are prescribed in 21.01 and therefore the individuals mentioned in 21.11 are those defined in 29.10. Thus by the process of elimination, only those persons described in art. 4.01(a), supra, can be those falling into the definition of persons who are not disqualified therefrom by reason of being employees. This is so because 4.01(a) relates to both and provides: “The Employer shall deduct from the wages due to every employee or person….” Thus both classes of individuals are referred to in art. 4. The article then goes on to qualify these persons as being “covered by this Collective Agreement”. It is true that such an expression may be found in general commercial contracts, and carries there a connotation of being bound by the agreement. But bearing in mind that this collective agreement relates to persons who are not signatories and who have no agent who is a signatory, it is natural to infuse into the expression “covered by this Collective Agreement” a broader meaning than that assigned to traditional contracts.

This line of reasoning is supported by art. 1.04 of the agreement, supra which states that the agreement “applies to and is binding on the Union, the employees, the Employer….” In that provision the parties to the agreement have expressed themselves in the traditional words employed in the law of contracts. The parties are designated and are said to be bound by the agreement. Article 4.01(a) on the other hand expressly avoids the use of this terminology and adopts the broader expression “covered by this Collective Agreement”.

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From these rather unusual provisions I conclude that the proper interpretation of the agreement read as a whole is that it contemplates the engagement by the employer of students on a casual basis and who are not employees until their attachment to the work force exceeds the limits prescribed in art. 29.01. During this period while they are within the definition of “person” and are not “employees”, the students have entitlements which are reflected rights in the sense that they are subject to enforcement by the bargaining agent who has the contractual right to call upon the employer to perform the agreement wherever the bargaining agent in its determination wishes a clause of the contract enforced against the employer. Here it is in the interests of the bargaining agent to do so for the obvious reason that the aforementioned articles of the collective agreement, when read as a group, formulate a protective screen around the bargaining unit and the employees therein comprised.

The mode of enforcement is, of course, that of grievance and arbitration as prescribed by the agreement. We are not here concerned about the common law rules of third party entitlement and third party status of enforcement, but only with the rights of the parties to the agreement to assert that agreement as against other parties to it.

We turn then to the statute to determine whether or not these clauses are within the terms of the statute in the sense that the Treasurer of the Province of New Brunswick may enter into an agreement which embodies them. The only sections of the statute which might be said to strip the Treasury Board of any such capacity are the following:

61 The Treasury Board may, in such manner as may be provided for by any rules or procedures determined by it pursuant to section 62 of the Financial Administration Act, enter into a collective agreement with the bargaining agent for a bargaining unit, other than a bargaining unit comprised of employees of a separate employer, applicable to employees in that bargaining unit.

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1…

“collective agreement” means an agreement in writing entered into under this Act between the employer on the one hand, and a bargaining agent on the other hand, containing provisions respecting terms and conditions of employment and related matters;

…

65 A collective agreement is, subject to and for the purposes of this Act, binding on the employer, on the bargaining agent that is a party thereto and its constituent elements, and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and from the day on and from which it has effect pursuant to subsection 64(1).

The attention of the Court was not drawn to any authorities construing the meaning of the words used in the definition of collective agreement. Given their ordinary application, the words “containing provisions respecting terms and conditions of employment and related matters” did clearly, in my view, import the right to adopt a collective agreement which contains terms protecting the security of the work of employees engaged in the bargaining unit. Section 61 in the same way would, in my view, clearly support a collective agreement which contains terms for the benefit of employees “in that bargaining unit” in the sense that those terms protect the continuity and value of the work to be performed by the employees under the collective agreement. Section 65 is similar to art. 1.04 of the collective agreement, and confirms that the agreement reached between the employer and the bargaining agent under which, the employer agreed that the students were entitled to wages at the scheduled rate, is binding on the employer and enforceable by the bargaining agent.

There remains only to be mentioned the deduction of union dues or the equivalent from the moneys paid to the students on the scale prescribed in Schedule “A”. If there indeed be in law an obligation on the employer to pay contract-scale wages to the students pursuant to art. 21.11, supra, and if there be an obligation in the employer owed to the bargaining agent to make deduction therefrom of the equivalent to union dues pursuant to art. 4.01(a), supra, then there

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remains to be determined the right in the employer, in the discharge of his obligation, so to do. Again there is no question of enforceability by and entitlement in third parties standing in law outside the agreement. If the employer does in law have the obligation to effect this deduction and remittance to the bargaining agent, then it is the burden of the employer to so arrange his engagement of the students to include in that arrangement the performance by the employer to the bargaining agent of the obligations under the aforementioned articles in the collective agreement. Certainly the terminology in 4.01(a), “an amount equal to the dues of the Union”, embraces the idea that the employer is not actually deducting union dues for there are no dues payable by the students to the Union. Rather the section by its terminology contemplates the deduction of the equivalent and the transmission of the equivalent to the bargaining agent. It may be that the employer, if commercial circumstances dictate, could perform this obligation without taking the step of effecting deductions from the students’ wages but rather by making the payment from his own resources in equivalent amount to the bargaining agent. In any case, we are not faced in either the terms of the collective agreement or the practicalities revealed on the record with any such problem. Nor are we faced with the difficulty the employer might encounter in making these arrangements with the students or in proceeding without making such arrangements. In any case, it is to be noted that art. 4.05 of the collective agreement provides:

4.05… The Union agrees to indemnify and save the Employer harmless from any liability or action arising out of the operation of this Article.

I conclude, therefore, that this agreement creates rights relating to the performance of work under the collective agreement by students which are enforceable by the bargaining agents; and that the collective agreement when so construed is in law authorized by the Public Service Labour Relations Act, supra.

I therefore would allow the appeal, set aside the award of the Board of Arbitration and refer the matter to that Board for disposal in accordance

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with the terms hereof; all with costs to the appellant.

Appeal dismissed with costs, ESTEY J. dissenting.

Solicitors for the appellants: Byrne & Brown, St. John.

Solicitor for the respondent: Attorney General for the Province of New Brunswick, Fredericton, per Richard C. Speight.