Docket: A-354-15
Citation:
2016 FCA 184
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CORAM:
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STRATAS J.A.
NEAR J.A.
GLEASON J.A.
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BETWEEN:
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PUBLIC SERVICE
ALLIANCE OF CANADA
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on June 15, 2016).
GLEASON J.A.
[1]
The applicant seeks to set aside the July 15,
2015 decision of the Public Service Labour Relations and Employment Board
rendered by Adjudicator Olsen and reported as 2015 PSLREB 62. In the decision,
the adjudicator dismissed the applicant union’s grievance.
[2]
The grievance alleged that the employer’s
interpretation of the holiday pay provisions for employees who work variable
hours violated the collective agreement and, in particular, was contrary to
article 25.11 and paragraph 25.13(d) of the collective agreement. Under the
employer’s interpretation, employees who worked ten hours on a designated paid
holiday were paid premium pay for all hours worked but were only credited with
7.5 hours for purposes of averaging their regular hours of work under the
variable shift schedule. In the decision, the adjudicator upheld this
interpretation.
[3]
The parties concur that the reasonableness
standard of review applies to the adjudicator’s decision. We agree as it is firmly
settled that decisions made by labour adjudicators involving the interpretation
of a collective agreement are entitled to significant deference: Construction
Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, Canada
(A.G.) v. Delios, 2015 FCA 117 at paras 18-21, 472 N.R. 171.
[4]
The hallmarks of a reasonable decision are that
it is transparent, justified and intelligible and that the result reached falls
within the range of possible, acceptable outcomes defensible in light of the
facts and applicable law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 at para. 47.
[5]
We see nothing unreasonable in the adjudicator’s
decision in the present case. Both the reasons given and the result reached are
reasonable.
[6]
The adjudicator’s reasons are entirely adequate
as they fully set out why he dismissed the grievance and thoroughly canvass the
evidence, the parties’ arguments and the applicable case law. The decision is
therefore transparent and intelligible.
[7]
Similarly, we believe the result reached by the
adjudicator is justifiable and defensible as the interpretation the adjudicator
gave to the relevant collective agreement provisions is one that they can
reasonably bear. Contrary to what the applicant asserts, the collective
agreement provisions at issue in this case do not give rise to only a single possible
interpretation. Rather, in our view, they can be reasonably read either in the
way the employer asserted or in the way the union asserted, and it was
therefore open to the adjudicator to select one of these two options.
[8]
More specifically, we do not see that article
25.11 of the collective agreement has any bearing on the issue before the adjudicator.
As for paragraph 25.13(d) of the collective agreement, we believe that the
meaning ascribed to the paragraph by the adjudicator is a possible
interpretation of the paragraph. The averaging provisions in the collective agreement
provide for averaging the number of hours of non-overtime work over the period
of the schedule and the words in paragraph 25.13(d)(i) can be read as requiring
the crediting of 7.5 hours of non-overtime work for designated holidays to employees
on a variable schedule, regardless of whether they work or not. Paragraph 25.13(d)(i)
is not limited on its face to only those variable shift workers who do not work
on the holiday. It is thus possible to read paragraph 25.13(d)(i) of the
collective agreement as meaning that, for averaging purposes, all employees on
a variable schedule are to be credited with 7.5 non-overtime hours for a designated
holiday. Under this reading, it is paragraph 25.13(d)(ii) that provides for
extra compensation for the hours worked on a holiday, through payment of
premium pay (at time and a half) for all hours worked up to an employee’s usual
hours and double time thereafter.
[9]
The employer paid premium pay to the variable shift
workers who worked on designated paid holidays on this basis in the present
case. The present case may therefore be reasonably distinguished from the case
law relied upon by the applicant, where the employer sought to pay less and
made deductions from premium pay that were found to be unjustified. As the
employer did not make similar deductions in this case, the adjudicator’s
distinction of the prior awards was reasonable.
[10]
In sum, despite the able arguments advanced both
in writing and orally before us by counsel for the applicant, we cannot find
the adjudicator’s decision to be unreasonable as the reasons offered by the
adjudicator are adequate and the result reached is a possible defensible and
justifiable outcome, especially in view of the broad margin of appreciation to
be given in a case such as this. It therefore follows that this application for
judicial review will be dismissed. By agreement, there shall be no order as to
costs.
"Mary J.L. Gleason"
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