Docket:
A-119-13
Citation: 2013 FCA 237
CORAM:
NOËL J.A.
DAWSON J.A.
MAINVILLE J.A.
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BETWEEN:
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LIBRARY OF PARLIAMENT
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Applicant
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and
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CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES
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Respondent
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REASONS
FOR JUDGMENT
MAINVILLE J.A.
[1]
These reasons concern an application for judicial review brought by the
Library of Parliament (Library) under section 28 of the Federal Courts Act,
R.S.C. 1985, c. F-7 with respect to a decision dated February 26, 2013 bearing
citation 2013 PSLRB 18 (Decision) rendered by a panel of the Public Service
Labour Relations Board (Board) declaring that the Library had violated section
39 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985,
c. 33 (2nd Supp.) (Act) by implementing a new Workforce Adjustment
Policy (WFA policy) after a notice to bargain collectively had been given (June
28, 2011) and before an arbitral award establishing terms and conditions of
employment had been made (February 1, 2013).
Factual Background
[2]
The facts are not in dispute. These are set out in a long agreed
statement of facts reproduced at paragraph 3 of the Board’s Decision. For the
purposes of this judicial review application, the salient facts may be briefly
set out as follows.
[3]
The Library of Parliament offers information, reference and research
services to Parliamentarians. It is an ‘employer’ under the meaning of the Act.
Some of its employees are represented for collective bargaining purposes by the
respondent Canadian Association of Professional Employees (CAPE).
[4]
The collective agreement negotiated between the Library and CAPE has contained for many years the following article 38:
ARTICLE 38
JOB SECURITY
38.01 The employer shall make every
reasonable effort not to lay off employees during the term of this Agreement
and to ensure that reductions in the work force are accomplished through
attrition. This is subject to the willingness and capacity of individual
employees, who would otherwise be laid off, to undergo retraining and accept
reassignment.
[5]
The Library also adopted guidelines known as the Redeployment of
Human Resources Surplus Employees (“Guidelines”), for the purpose of
minimizing the impact of surplus situations on indeterminate employees. Under
the Guidelines, this purpose was to be achieved “primarily through ensuring that
other employment opportunities are provided to employees who have been declared
surplus”: Guidelines, purpose provision, reproduced at p. 115 of the Application
Record (“AR”).
[6]
However, starting in January 2011, internal work was carried out by the
management of the Library to develop a new policy concerning employee layoffs.
[7]
The collective agreement between the Library and CAPE expired on June
15, 2011, and CAPE submitted a notice to bargain collectively
on June 28, 2011. At the end of August, 2011, the Library and CAPE exchanged
bargaining proposals. None of these proposals addressed any issues related to
work force adjustment or job security. Collective bargaining ensued until April
4, 2012, when CAPE filed a notice of request for arbitration pursuant to
section 50 of the Act.
[8]
On December 2, 2011, in light of possible lay-offs in the public
service, a CAPE representative inquired whether the Library had any mechanisms
to address budgetary constraints. In response, the Library provided a copy of
the Guidelines, but with the caveat that it was in the process of developing a
new WFA policy. For the first time on April 26, 2012, the Library forwarded to
CAPE a copy of the draft WFA policy, and requested consultations with CAPE on its content.
[9]
CAPE refused to discuss the draft WFA policy on the grounds that notice
to bargain collectively had been issued, the issue of workforce adjustment had
not been raised by either party in collective bargaining, and that a “statutory
freeze” applied.
[10]
The new WFA policy was nevertheless approved by the Library on May 29,
2012. On June 21, 2012 a reduction of 2.5% in the Library’s budget was also
approved by the Speakers of the House of Commons and of the Senate. Some 36
positions at the Library would eventually be affected by this budgetary
measure.
[11]
On August 3, 2012, CAPE brought a reference to the Board under section
70 of the Act alleging that by implementing the WFA policy, the Library had
violated section 39 of the Act known as the “statutory freeze” provision.
[12]
It later turned out that no employee covered by CAPE’s bargaining
certificate was in fact affected by the budgetary measure, and consequently the
WFA policy was not applied by the Library to positions held by CAPE members. The Library nevertheless maintains that the WFA policy is in force and that
it applies to the employees forming part of CAPE’s bargaining unit.
The Legislative Framework
[13]
In light of the exceptional constitutional position of
the House of Commons and the Senate, the Act provides for a special regime
governing labour relations for employees who work in these institutions and in
closely related institutions, such as the Library.
[14]
The collective bargaining process within the Library is
based on a system of good faith negotiation and conciliation. In the event of a
deadlock in negotiations, recourse to binding arbitration by the Board may be
sought, since the employees are precluded from striking.
[15]
The Act governs the collective bargaining process by setting out a
framework in which bargaining occurs. Notice to bargain may be provided within
specific timelines: section 37. Once notice is given, the parties are compelled
to “meet and commence to bargain collectively in good faith and make every
reasonable effort to conclude a collective agreement”: section 38. Where notice
to bargain collectively has been given, the terms or condition of employment
applicable to the employees that may be embodied in a collective agreement, and
that are then in force, must remain in force until the bargaining or arbitration
process has run its course: section 39 of the Act.
[16]
The precise terms of section 39 of the Act are as follows:
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39. Where
notice to bargain collectively has been given, any term or condition of
employment applicable to the employees in the bargaining unit in respect of
which the notice was given that may be embodied in a collective agreement and
that was in force on the day the notice was given shall remain in force and
shall be observed by the employer affected, the bargaining agent for the bargaining
unit and the employees in the bargaining unit, except as otherwise provided
by any agreement in that behalf that may be entered into by the employer and
the bargaining agent, until such time as
(a) a
collective agreement has been entered into by the parties and no request for
arbitration in respect of that term or condition of employment, or in respect
of any term or condition of employment proposed to be substituted therefor,
has been made in the manner and within the time prescribed therefor by this
Part; or
(b) a request for arbitration
in respect of that term or condition of employment, or in respect of any term
or condition of employment proposed to be substituted therefor, has been made
in accordance with this Part and a collective agreement has been entered into
or an arbitral award has been rendered in respect thereof.
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39. Sauf
entente à l’effet contraire entre l’employeur et l’agent négociateur, toute
condition d’emploi pouvant figurer dans une convention collective et encore
en vigueur au moment où l’avis de négocier a été donné continue de lier les
parties aux négociations, y compris les employés de l’unité de négociation :
a) soit jusqu’à la conclusion d’une
convention collective, si cette condition d’emploi ou une autre condition proposée
à sa place n’a pas fait l’objet d’une demande d’arbitrage dans les conditions
prévues par la présente partie;
b) soit,
si cette condition d’emploi ou une autre proposée à sa place fait l’objet
d’une demande d’arbitrage dans les conditions prévues par la présente partie,
jusqu’au règlement de la question par une convention collective ou une
décision arbitrale.
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[17]
Though the drafting of this provision is somewhat
deficient, both litigants agree that the contemplated duration of the
“statutory freeze” required by section 39 runs from the time the notice to
bargain collectively has been given until the time a new collective agreement,
or an arbitration award in lieu thereof, has come into force. I agree that this
is the correct reading.
The Decision of the Board
[18]
The Board found that even though the Guidelines and the WFA policy were
not embodied in the collective agreement, both nevertheless pertained to terms
and conditions of employment which could be embodied therein. It noted that “the
fact that arbitral awards cannot deal with layoff procedures or processes under
section 55 of the [Act] does not mean that layoff issues may not be embodied by
the parties in a collective agreement”, adding that “[i]n fact, it is quite
common to find similar WFA policies incorporated into collective agreements in
the public sector”: Decision at para. 14. The Board consequently concluded that
the terms and conditions set out in the Guidelines were contemplated by section
39 of the Act.
[19]
The Board also found that the WFA policy substantially and fundamentally
changed the terms and conditions of employment set out in the Guidelines:
Decision at para. 15. It reached that conclusion through a review of the terms
of both documents. It also found support for this in an internal memo from the
Library’s Chief of Employment Relations and Classification which recommended
that the Library’s Guidelines be reviewed and modified in light of the fact
that they practically made the concept of layoff inexistent.
[20]
The Board also concluded that the introduction of the WFA policy was not
the result of normal business practice or business as usual by the Library, but
rather amounted to a unilateral change in its employees’ terms and conditions
of employment in a manner prohibited by section 39 of the Act: Decision at
para. 16. Moreover, the Board did not accept the Library’s submission that the
absence of the WFA policy would paralyze its operations: Decision at para. 17.
[21]
The Board refused to consider the Library’s bona fide business
reasons for introducing the WFA policy on the ground that this was not material
to its determination. The Board justified this refusal as follows (Decision at
para. 18): “No matter how valid the reasons for introducing the WFA policy may
have been, it still amounted to a violation of section 39 that could not be
saved by the ‘business as usual’ or by the ‘reasonable expectation’ exception.
In these circumstances, it was simply not practical to infer that the concerned
employees or their bargaining agent should reasonably have expected the
implementation of a new WFA policy during the freeze.”
[22]
The Board noted that by the time its decision was made, the “statutory
freeze” provided by section 39 of the Act had expired. It also noted that none
of the employees represented by CAPE were affected by the introduction of the
WFA policy. It therefore concluded that “there are no practical consequences
that resulted from this violation”: Decision at para. 21. It consequently
limited the available remedy to a declaration that the Library violated section
39 of the Act when it implemented its WFA policy during the statutory freeze
period contemplated by that section, namely from June 28, 2011 (the date of the
notice to bargain collectively) to February 1, 2013 (the date of the arbitral award).
The Board added that its reasons “do not propose to address the issue of
whether or not the employer could or should reintroduce its WFA policy at a
later date, now that the statutory freeze is no longer in effect”: Decision
para. 22.
The Issues raised by the
Library’s application
[23]
The Library’s principal submission is that the
Board erred in finding that the Guidelines and the WFA policy were terms and
conditions of employment that may be embodied in a collective agreement as
contemplated by section 39 of the Act. It relies for this purpose on
subsections 5(3) and 55(2) of the Act. Subsection 5(3) seeks
to preserve the management rights of the Library, while subsection 55(2)
restricts the Board from dealing in arbitration with the lay-off or release of
employees. These subsections read as follows:
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5. (3) Nothing in this Part shall be construed to affect the right
or authority of an employer to determine the organization of the employer and
to assign duties and classify positions of employment.
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5. (3) La
présente partie n’a pas pour effet de porter atteinte au droit ou à
l’autorité de l’employeur quant à l’organisation de ses services, à
l’attribution des fonctions aux postes et à la classification de ces
derniers.
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55. (2) No arbitral award
shall deal with the standards, procedures or processes governing the
appointment, appraisal, promotion, demotion, transfer, lay-off or release of
employees, or with any term or condition of employment of employees that was
not a subject of negotiation between the parties during the period before
arbitration was requested in respect thereof.
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55.
(2) Sont exclues du champ des décisions arbitrales les normes,
procédures ou méthodes régissant la nomination, l’évaluation, l’avancement,
la rétrogradation, la mutation, la mise en disponibilité ou le renvoi
d’employés, ainsi que toute condition d’emploi n’ayant pas fait l’objet de
négociations entre les parties avant que ne soit demandé l’arbitrage à son
sujet.
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[24]
As subsidiary arguments, the Library first
submits that the Board unreasonably interpreted the Guidelines as being
substantially different from the WFA Policy; it should have rather found that
the WFA policy was simply “an enhanced and re-packaged version of the
pre-existing guidelines”: Library’s memorandum at para. 65. Somewhat in
contradiction with this first submission, the Library also adds that the Board
acted unreasonably and erred in law in the application of the business as usual
test by refusing to consider the special economic circumstances that prompted
the introduction of its new WFA policy and its bona fide business
reasons for doing so.
Standard of Review
[25]
The issues raised by the Library involve the interpretation and
application by the Board of the provisions of the Act, notably subsections 5(3)
and 55(2) and section 39, as well as the Board’s assessment of the contents of
the Guidelines and of the WFA policy.
[26]
In Public Service Alliance v. Senate of Canada, 2011 FCA 214, 336
D.L.R. (4th) 540 at paras. 18 to 31, this Court carried out a
full standard of review analysis with respect to the Board’s interpretation and
application of subsection 55(2) of the Act, and concluded that the applicable
standard of review was that of reasonableness. That same analysis applies to
the Board’s interpretation and application of subsection 5(3) and section 39 of
the Act. I will therefore apply that standard to all the issues raised by the
Library in its application.
Analysis
First Issue: Are
the Guidelines and the WFA policy contemplated by section 39 of the Act?
[27]
The Guidelines deal with the principles and processes the Library is to
apply when dealing with surplus employee situations. They notably set out the
principle that “[e]very surplus employee will be guaranteed an employment offer
in the Library of Parliament to a position where their skills, abilities and
potential will be used productively”: Guidelines s. 1.4. They also provide a
range of options that are available to the Library where a surplus employee
does not voluntarily leave, including redeployment, retraining, referrals,
salary protection, and other measures. The WFA policy deals with substantially
the same issues as the Guidelines, but provides for different principles and
options to deal with surplus employee situations.
[28]
I have no reservation finding that both the Guidelines and the WFA
policy include terms or conditions of employment. The question raised by the
Library is whether these terms or conditions of employment are precluded from
ever forming part of a collective agreement by the operation of subsections 5(3)
or 55(2) of the Act? In my view, the Board properly held that the answer is no.
[29]
Subsection 5(3) sets out that the provisions of the Act dealing with
staff relations do not affect the right or authority of the Library to
determine its organization, to assign duties and to classify positions of
employment. These management prerogatives are thus unaffected by the Act.
However, nothing precludes the Library from voluntarily restricting its
management rights over these matters by agreeing to include provisions in the
collective agreement which will have this effect. This is precisely what the
Library did when it agreed to include in the collective agreement Article 38
(reproduced above) which deals with job security.
[30]
As for subsection 55(2) of the Act, though it precludes the Board from
including in an arbitral award provisions relating to the lay-off or release of
employees, that statutory restriction does not extend to the terms of a
collective agreement freely negotiated by the Library.
[31]
Moreover, to be captured by section 39 of the Act, the terms or
conditions of employment themselves need not necessarily be embodied in a
collective agreement. Section 39 itself refers to terms or conditions of
employment that “may” be embodied in a collective agreement. As noted
by Justice Urie in The Queen v. Canadian Air Traffic Control Association,
[1982] 2 F.C. 80 at p. 89 when dealing with a similar statutory provision:
There
is no doubt that the policy of permitting air traffic controllers to refuse to
work overtime is one which might have been or "may be" in the future,
embodied in a collective agreement. I take it that the words "may be
embodied" as they appear in section 51 mean that the term or condition of
employment is "capable of being embodied" in the agreement. There is
equally no question, as I see it, that the policy, so long as it subsisted,
constituted, or resulted in, a term or condition of employment. Undoubtedly
during the term of the agreement that policy which was, in effect, an unwritten
amendment to article 15 could have been rescinded by the employer. (I leave
aside the question of whether the bargaining agent or the employees must be
consulted before such rescission.) However, at the time that notice to bargain
was given no such rescission had been made and the policy, which, as I have
said, effectively provided one of the terms or conditions of employment, was
"in force" at that time.
[32]
Since subsections 5(3) and 55(2) of the Act do not preclude the terms or
conditions of employment set out in the Guidelines from being embodied in a
collective agreement, these terms or conditions of employment are consequently contemplated
by section 39 of the Act.
[33]
The Library also submits that the Board’s reasons were inadequate in
that they failed to specifically address subsection 5(3) of the Act. The
Library’s submissions on the inadequacy of the Board’s reasons rest entirely on
this Court’s decision in Vancouver International Airport Authority v.
P.S.A.C., 2010 FCA 158, 320 D.L.R. (4th) 733. However, since
that decision was released, the Supreme Court of Canada has provided guidance
as to the adequacy of the reasons issued by administrative tribunals, most
notably in Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. As noted by a
unanimous Supreme Court of Canada in Construction Labour Relations v. Driver
Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405 at para. 3: “This Court has
strongly emphasized that administrative tribunals do not have to consider and
comment upon every issue raised by the parties in their reasons. For reviewing
courts, the issue remains whether the decision, viewed as a whole in the
context of the record, is reasonable.” This approach was again recently reiterated
in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013
SCC 36 at para. 53.
[34]
In this case, the Board implicitly dealt with subsection 5(3) of the Act
in its reasons by finding that the terms or conditions of employment set out in
the Guidelines could be embodied in a collective agreement. The Board’s
decision in that respect, when viewed as a whole, is reasonable even though it
did not explicitly refer to subsection 5(3).
Second Issue: Are the Guidelines substantially different from the
WFA Policy?
[35]
I have no hesitation in finding that the Board reasonably concluded that
the WFA policy was substantially and fundamentally different from the
Guidelines. The differences in both documents are abundant. I need only note
the following examples to illustrate that these differences are also
fundamental.
[36]
As noted above, the Guidelines set out the principle that every surplus
employee will be guaranteed an employment offer in the Library to a position
where their skills, abilities and potential will be used productively. This
undertaking has not been reiterated in the WFA policy. Moreover, under the
Guidelines, the onus is on the Library to actively seek employment
opportunities for surplus employees, while under the WFA policy, the onus is
placed on the surplus employee. These are substantial and fundamental
differences.
Third Issue: Did the Board err by refusing to consider special
economic circumstances?
[37]
The obligation for the employer to maintain the terms and conditions of
employment for the period during which negotiations to renew a collective
labour agreement must take place is a common statutory requirement: Canada
Labour Code, R.S.C. 1985, c. L-2 at s. 50; Public Service Labour
Relations Act, S.C. 2003, c. 22, s. 2, at s. 107. This legislated
requirement does not however impede the employer from continuing to make
changes to the working conditions which are not set out in a collective
agreement when it is its customary or established practice to do so. This is
known as the “business as usual” exception: see, inter alia, Public
Service Alliance of Canada v. BHP Billion Diamonds Inc., 2006 CIRB 353.
[38]
In this case, the Board found that the introduction of the WFA policy
“was not the result of normal business practice or business as usual on the
employer’s part”: Decision at para. 16. This was a reasonable finding of fact
by the Board which is amply supported by the evidence.
[39]
The Library however submits that the Board should have considered the
new and unforeseen circumstances resulting from the decision to reduce its
budget by 2.5%, which was in the Library’s view a bona fide business
reason for introducing the WFA policy: Library’s memorandum at paras. 68 to 71.
[40]
Though I would not necessarily exclude the possibility for an employer
to make changes to the terms and conditions of employment during a “statutory
freeze” period where very exceptional and extraordinary circumstances beyond
its control arise, I need not decide this issue in this case. Indeed, it is
abundantly clear from the evidence that no position subject to the bargaining
unit was affected by the budgetary reductions. In these circumstances, the
Library’s submissions lack a factual foundation with respect to the employees
in CAPE’s bargaining unit.
Conclusion
[41]
For the reasons set out above, I conclude that the Board’s decision was
reasonable. I would therefore dismiss the judicial review application with
costs in favour of the respondent.
"Robert M. Mainville"
“I agree
Marc Noël J.A.”
“I agree
Eleanor R. Dawson J.A."
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