Date: 20060403
Docket: T-754-05
Citation: 2006
FC 428
Ottawa, Ontario, April 3, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
IAN HODGSON and JOHN KNIGHTON
Applicants
and
CANADA (ATTORNEY GENERAL)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, C. F-7 (the Act) of a decision rendered March 31,
2005, by Ian R. Mackenzie, a member of the Public Service Staff Relations Board
(the Board) which dismissed two individual grievances and a policy grievance
regarding the interpretation of a collective agreement.
RELEVANT FACTS
[2]
Regional
Safety Inspectors (RSIs) are federal public service employees with Transport Canada who are responsible for
safety and security at airports, railways and harbours. Ian Hodgson and John
Knighton (the applicants) are RSIs based at the airports in Edmonton and Vancouver respectively.
[3]
The Public
Service Alliance of Canada (PSAC) is the certified bargaining agent for RSIs
pursuant to the Public Service Staff Relations Act (PSSRA). The
work of RSIs is governed by the Technical Services Group collective agreement
(the collective agreement) between the PSAC and the Treasury Board of Canada.
[4]
Prior to
September 11, 2001, RSIs were considered “day workers” and worked 7.5 hours per
day between 6:00 am and 6:00 pm, Monday to Friday. Occasionally, RSIs were also
scheduled to work on weekends or evenings, for which they were paid overtime.
[5]
Shortly
after the tragic events of September 11, 2001, Transport Canada implemented shift work for
the RSIs in order to meet the needs for greater security and increased hours of
operation. Representatives of Transport Canada and PSAC met to discuss these changes on
numerous occasions.
[6]
The union
took the position that new employees could be hired as shift workers and that current
employees could choose to become shift workers. However, the union was adamant
that current employees who did not want to do shift work must not be required
to do so without the agreement of the union.
[7]
Transport Canada was of the opinion that it
was under an obligation to consult with the union but that an agreement on the
changes was not a requirement for implementing the shift work for all employees.
[8]
The
applicants Hodgson and Knighton were among approximately 14 RSIs who filed
grievances regarding the imposition of shift work. The Knighton and Hodgson
grievances, filed on March 27, 2002 and April 9, 2002 respectively, alleged
that the employer changed the hours of work in violation of clause 25.04 of the
collective agreement. The grievances also claimed for overtime and an end to
the unilateral imposition of shift work.
[9]
On June
10, 2003, the PSAC filed a reference under section 99 of the PSSRA alleging
that the employer failed to reach an agreement with the union, as per the
obligation found in clause 25.04(a) of the collective agreement.
DECISION OF THE BOARD
[10]
The Board
concluded that based on sections 7 and 11 of the Financial Administration
Act, “… the Treasury Board may do that which is not specifically or by
inference prohibited by the statute or the collective agreement.” Since the
PSAC was unable to persuade the adjudicator that the collective agreement
constrained the employer’s broad power to schedule hours of work, the
grievances and section 99 reference were dismissed.
ISSUES
[11]
1. What
is the appropriate standard of review in the present matter?
2. Did the Board
commit a reviewable error in determining that Transport Canada could change day
workers into shift workers without the consent of the bargaining agent?
ANALYSIS
[12]
Counsel
for the applicants raised a preliminary issue; given that one of the grievances
is in regard to the interpretation of a collective agreement, the adjudicator
is acting as the Board and the judicial review application should go directly
to the Court of Appeal.
[13]
As
a result, both parties have agreed that the PSAC be removed as an applicant in
this case. Therefore, this Court allows PSAC to be removed as an applicant and
the style of cause is amended to reflect this change.
1. What is the appropriate standard of
review in the present matter?
[14]
In Public
Service Alliance of Canada v. Canada (Canadian Food Inspection Agency)
2005 FCA 366,
[2005] F.C.J. No 1849, the Federal Court of Appeal stated the following
regarding the standard of review for the decisions of the Board:
It is generally
accepted that the interpretation and application of a collective agreement,
including references under the PSSRA alleging its violation fall within the
purview of the PSSRB's expertise and call for the highest degree of deference
known as patent unreasonableness (see for instance, Barry v. Treasury Board
(1997), 221 N.R. 237 (F.C.A.); Connors v. Canada (Revenue B Taxation), [2000]
F.C.J. No. 477 (T.D.), (Q.L.); Attorney General of Canada v. Social Science
Employees Assn. et al. 240 D.L.R. (4th) 335; White v. Canada (Treasury Board),
[2004] F.C.J. No. 1231, 2004 FC 1017).
[15]
In
Ryan v. Canada (Attorney General) [2005]
F.C.J. No. 110 (2005) FC 65 at paragraph 15, Justice Konrad von Finckenstein
commented on the purpose of the Board:
The purpose of the PSSRB is to allow
effective collective bargaining in the public service. Issues resolved before
the Board affect the entire public service and can have ripple effects for all
unions. The resolution of public service disputes, thus by their very nature,
are polycentric rather than bi-polar and warrant a greater degree of deference.
[16]
The
applicants argue, however, that the Supreme Court’s decision in Voice
Construction Ltd. v. Construction & General Workers' Union, Local 92,
[2004] 1 S.C.R. 609 has been interpreted by the Federal Court as calling for a
lower standard of review for decisions made by PSSRA adjudicators (see Oliver
v. Canada (Customs and Revenue Agency), [2004] F.C.J. No. 1769 at
paragraphs 7-9).
[17]
I disagree with the applicants’ position in light of the
Federal Court of Appeal’s reasoning in Public Service Alliance of Canada v. Canada (Canadian Food Inspection
Agency), above.
The Federal Court of Appeal
took issue with the assertion that the Supreme Court in Voice
Construction Ltd. v. Construction & General Workers' Union, Local 92,
above, changed the standard of review applicable in labour disputes to one that
was less deferential. The Court said the following at paragraphs 20-23:
The two decisions
relied upon have not been construed as the applicant suggests. Indeed, the
Ontario Court of Appeal specifically refused to adopt the approach proposed by
the applicant in Lakeport Beverages v. Teamsters Local Union 938 (2005), [2005]
O.J. No. 3488, as did the Federal Court in Currie et al. v. the Queen (CCRA),
[2005] F.C.J. No. 922, 2005 FC 733. I am aware of no decision in which the pronouncement
of the Supreme Court in Voice Construction and in Lethbridge Community College has
been applied as the applicant proposes.
In addition, unlike
the arbitrator in the Voice Construction decision, the Chairperson of the PSSRB
is not an ad hoc adjudicator appointed by the parties. The PSSRB is a statutory
tribunal created by Parliament by virtue of the PSSRA. In my view, this
institutional expertise favours a more deferential standard of review, which is
in stark contrast to the nature of the standard applied in Voice Construction.
Furthermore, the
question of whether the provisions of the collective agreement were triggered
on the facts of this case is one of mixed fact and law. This again
distinguishes the present application from the issue which arose in Voice
Construction.
[18]
The
present matter deals with the complaints of two individuals, but it is a test case
and as such it will have repercussions with the 12 or more other employees
involved. I am also informed that the hearing of the case including witnesses
and argument lasted for at least seven days.
[19]
I
cannot conclude that what is at issue in the case at bar is a pure question of
law. The present matter deals with how the collective agreement is to be
interpreted in light of a particular factual situation. Such
a determination is one of mixed-fact and law. In light of the findings of the
Court of Appeal and considering that the present matter deals with the
interpretation and application of a collective agreement, including references
under the PSSRA alleging its violation, I find that standard of review to be
patent unreasonableness.
2.
Did the Board commit a reviewable error in determining that Transport Canada could change day workers into
shift workers without the consent of the bargaining agent?
[20]
The
applicants were of the opinion that clause 25.04(a) should be interpreted to
mean that the respondent could not change day workers into shift workers
without the agreement of the union. The respondent was of the opinion that
clause 25.02 governed the transition from day work to shift work and that such
changes only needed to be discussed, as opposed to being agreed to, before they
could be implemented. The Board disagreed with both the applicants and the
respondent.
[21]
Clauses
25.04(a) and 25.02 state as follows:
|
25.04(a) Except as provided for in clause 25.09,
the normal work week shall be thirty-seven and one-half (37 1/2) hours
exclusive of lunch periods, comprising five (5) days of seven and one-half (7
1/2) hours each, Monday to Friday. The work day shall be scheduled to fall
within a nine (9)-hour period between the hours of 6:00 a.m. and 6:00 p.m.,
unless otherwise agreed in consultation between the Alliance and the
Employer at the appropriate level.
|
25.04a) Sous
réserve du paragraphe 25.09, la semaine de travail normale est de trente-sept
heures et demie (37 1/2), à l'exclusion des périodes de repas, réparties sur
cinq (5) jours de sept heures et demie (7 1/2) chacun, du lundi au vendredi.
La journée de travail est prévue à l'horaire au cours d'une période de neuf
(9) heures située entre 6 h 00 et 18 h 00, à moins qu'il n'en ait été convenu
autrement au cours de consultations au niveau approprié entre l'Alliance et
l'Employeur.
|
|
25.02 The Employer agrees that,
before a schedule of working hours is changed, the changes will be discussed
with the appropriate steward of the Alliance if the change will affect a majority of the employees governed
by the schedule.
|
25.02 L'Employeur convient, avant de modifier l'horaire des heures de
travail, de discuter des modifications avec le représentant approprié de
l'Alliance si la modification touche la majorité des employé-e-s assujettis à
cet horaire.
|
[22]
The applicants submit that the Board’s decision is unreasonable because
it dismissed the competing understandings of the two parties who negotiated,
drafted and signed the collective agreement. The applicants allege that by
constructing a meaning that was not intended by either party, the Board
departed from one of the basic goals of contract interpretation, namely,
determining the true intentions of the parties. Further, the applicants contend
that the Board’s decision is unreasonable because its interpretation of the
collective agreement renders clause 25.04(a) meaningless.
[23]
With
regards to clause 25.04(a), the Board concluded the following:
Clause 25.04(a) is subject to the broad
exception of clause 25.09, the clause that establishes the hours of work for
employees who work on an “irregular or rotating” basis. The clause goes on to
establish a “normal” work week of Monday to Friday, 7.5 hours per day. The next
sentence refers to core hours of work within a nine-hour period between the
hours of 6:00 a.m. and 6:00 p.m. with the important proviso that these core
hours can be changed on the agreement of the bargaining agent and the employer,
at the appropriate level. This requirement to agree refers solely to the core
hours of work, and not the average hours of work or the days of work. This
would allow for an earlier start time or a later finishing time, if the
bargaining agent agreed. However, it does not govern a change of hours of work
that has the effect of changing a day worker into a shift worker.
[24]
With
regards to clause 25.02, the Board concluded the following:
This clause does not refer to hours of
work, but “a schedule of working hours.” A schedule is the way that hours and
days of work are organized. As stated in Tornblom (supra), a schedule is
a written document. The Concise Oxford Dictionary (10th ed.)
defines “schedule” as “a usually written plan…for future procedure typically
indicating the objectives proposed, the time and sequence of each operation…” In French, the collective
agreement refers to “l’horaire du travail” as “répartition des heures de
travail à l’intérieur d’une période donnée: journée, semaine ou mois." A schedule can therefore be regarded as a
distribution of hours of work within a fixed period. The collective agreement
elsewhere reinforces this interpretation of a schedule as a fixed period by
referring to the “life of a schedule" (clause 25.12(b)). I conclude,
therefore, that this clause applies solely to proposed changes in the
allocation of hours and days of work over a fixed period. In other words,
discussion is required when the employer proposes to change a schedule of
shifts or days of rest. It does not cover the situation where employees are
transformed from “day workers” to “rotating or irregular” workers.
[25]
I find nothing wrong
with the reasoning of the Board in rejecting the parties’ interpretations of
the collective agreement. After dismissing such positions, the Board went
through a series of its past judgments dealing with an employer being permitted
to change day workers into shift workers. The Board emphasized that the
jurisprudence illustrated that the practice was allowed, however, it noted that
it was unclear as to where the employer received the authority to make such a
change. As such, the jurisprudence had only a limited use. Having disagreed
with the parties’ interpretations of the collective agreement in terms of granting
the authority to change day workers into shift workers, the Board had to look elsewhere
to find where such a power was conferred. The Board found the answer by making
reference to the Federal Court’s findings in Brescia
v. Canada (Treasury Board), 2004
FC 277, [2004] F.C.J. No. 418, regarding the scope of management rights under
the PSSRA:
The
Zirpdji (supra) decision and subsequent decisions under the PSSRA have
not clearly articulated the source of managements’ authority to change hours of
work from day work to shift work. The scope of management rights under the PSSRA
regime has been outlined by the Federal Court as follows: The Treasury
Board may do that which is not specifically or by inference prohibited by the
statute or the collective agreement (Brescia v. Canada (Treasury Board), 2004
FC 277).
[26]
The Board further
mentions that the scope of management rights under the PSSRA are
outlined in subsection 11(2) of the Financial Administrations Act (FAA):
I
find subsection 11(2) of the FAA to be more specific in its application
to this case:
(2) Subject to the
provisions of any enactment respecting the powers and functions of a separate
employer but notwithstanding any other provision contained in any enactment,
the Treasury Board may, in the exercise of its responsibilities in relation to
personnel management including its responsibilities in relation to employer and
employee relations in the public service, and without limiting the generality
of sections 7 to 10,
(a) determine the requirements of the public service with
respect to human resources and provide for the allocation and effective
utilization of human resources within the public service;
[…]
(d) determine and regulate the pay to which persons
employed in the public service are entitled for services rendered, the hours of
work and leave of those persons and any matters related thereto;
[27]
The Board has a
special role and expertise in the resolution of differences arising in labour
relations in the public sector. It does not, therefore, have to agree with
either the applicants or the respondent regarding their interpretation of the
collective agreement. I am convinced that the adjudicator considered the
appropriate provisions of the collective agreement and interpreted those in
accordance with normal principles of interpretation. The Board made use of
jurisprudence and interpretative provisions of other statutes to understand the
scope of managerial power with regards to changing day workers to shift
workers. The applicants have failed to demonstrate that the Board’s
interpretation was patently unreasonable.
JUDGMENT
THIS COURT ORDERS that
The application for judicial
review be dismissed.
“Pierre Blais”
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