Date: 20110628
Docket: A-301-10
Citation: 2011 FCA 214
CORAM: BLAIS
C.J.
SHARLOW
J.A.
MAINVILLE
J.A.
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
and
SENATE OF CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The Public
Service Alliance of Canada (the PSAC) is challenging by way of judicial review an
arbitral award of the Public Service Labour Relations Board (the Board)
rendered pursuant to the Parliamentary Employment and Staff Relations Act,
R.S.C. 1985, c. 33 (2nd Supp.) (the Act) which rejected its proposal
to incorporate into a collective agreement a provision requiring the Senate of
Canada to post bargaining unit vacancies. The Board found that it did not have jurisdiction
to consider such a proposal in light of subsection 55(2) of the Act which prohibits
arbitral awards from dealing with procedures or processes governing the
appointment, promotion or transfer of employees.
Background and context
[2]
The House
of Commons and the Senate of Canada are the two fundamental law making
institutions of Canada, and they hold a special
position within the Canadian constitutional framework. In light of their
exceptional position, the Act provides for a special regime governing the
labour relations of the employees who work within these institutions. Part 1 of
the Act provides for certification of employee organizations as bargaining
agents, negotiation of collective agreements, and the resolution of employee
grievances, while Parts 2 and 3 (which are not in force) govern respectively
certain minimum labour standards and occupational health and safety. Only the
provisions of Part 1 of the Act concerning the negotiation of collective
agreements are of interest for the purposes of this judicial review.
[3]
Section 73
of the Act states that no employee shall participate in a strike. The
collective bargaining process is consequently based on a system of good faith
negotiations and conciliation, and in the event of a deadlock in negotiations,
on binding arbitration by the Board. Certain limits are however set out in the
Act restricting the scope of what may be included in a collective agreement
through arbitration.
[4]
Subsection
5(3) of the Act protects the right of the House of Commons and of the Senate
“to determine the organization of the employer and to assign duties and
classify positions of employment” while subsection 55(2) prohibits the Board
from including in an arbitral award any matter dealing with the standards,
procedures or processes governing the appointment, promotion or transfer of
employees. Subsection 55(2) of the Act reads as follows:
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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.
|
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.
|
[5]
Staffing
and hiring in the House of Commons and the Senate have been governed by
employer policies rather than by collective agreements. The Clerk of the Senate
has approved a “Senate Staffing and Recruitment Policy” as well as an appendix
thereto which set out certain guiding principles, including the application of the
merit principle for appointments. Two appointment processes are provided for
under that policy, one is an “internal appointment process” in which only
Senate employees may be considered, and the other is an “external appointment
process” in which both employees and the general public may apply. The choice
of an “internal” or “external” appointment process is decided by management
based on certain factors.
[6]
The
Senate’s policy also provides that managers may choose either an “advertised”
or a “non-advertised” appointment process. In an “advertised” process, persons
in the area of selection are informed of a job opening and have an opportunity
to apply and to demonstrate their suitability based on the merit criteria. The
appointment process in such cases may be advertised in writing by notice,
posting or email, or announced verbally. In a “non-advertised” appointment
process, a manager need not solicit applications, but rather considers one or
more persons for the position. In the staffing policy, acting appointments,
reclassification of an employee in a unique position, and change of tenure are
given as examples of when a non-advertised process may be used.
[7]
Though not
required to do so under the policy, the administration of the Senate
nevertheless has followed the practice of advising members of the concerned
bargaining unit of its intention to appoint through a non-advertised
appointment process. However, under that practice, no notice of any vacant
position is given unless the Senate intends to fill that position and an
appointment process is consequently initiated.
[8]
The PSAC
has been certified to act as the bargaining agent for the “Operational Group”
of the Senate, comprising of approximately 101 employees engaged principally in
committee room support and mail services, installations and transport,
maintenance, printing and trades services. A prior collective agreement for
this group expired on September 30, 2007, and bargaining negotiations for the
renewal of this agreement were pursued by the parties. Many issues remained
outstanding in these negotiations, and on May 22, 2009 the PSAC sought binding
arbitration under the Act in order to have these outstanding matters resolved
by the Board.
[9]
After
receiving the parties’ representations and holding hearings, the Board issued
its arbitral award dated August 16, 2010 and bearing citation number 2010 PSLRB
87 in which it made determinations in a long series of outstanding collective
agreement issues. The PSAC takes exception with only one of these determinations
which concerns the posting of bargaining unit vacancies, hence this judicial
review.
[10]
The dispute
revolves around a proposal by the PSAC to include a new provision in the collective
agreement which would require the Senate to “post bargaining unit vacancies
when they occur.” The PSAC justified its proposal as follows in its
submissions to the Board (Applicant’s Application Record at p. 34):
Over the life of the current agreement
there have been instances where positions have become available at the Senate
and employees have been unaware of these vacancies and therefore missed the
opportunity to apply. Recently the Employer’s practice has been to provide
notification of vacancies via the Intranet, an internal system available to
Senate employees. The Union wishes to enshrine this practice in the parties’
collective agreement, so that all bargaining unit employees might be made aware
of bargaining unit vacancies when they occur. Clearly the Employer sees the
benefit of this, as it has been the Employer’s practice for over two years. The
Union is simply asking that it be
included in the agreement in order to ensure that it continues for the life of
the contract.
[11]
Before
the Board, the Senate objected to this proposal on the basis that subsection
55(2) of the Act, reproduced above, prohibits such a proposal from being considered,
and alternatively on the basis that its practice was not to post all vacancies,
but only those vacancies that are part of a staffing competition.
The Board’s decision
[12]
The Board’s
decision on the posting of vacancies is hereby reproduced in full:
A.
Article 11: Information (notification to bargaining unit regarding vacancies)
14 The bargaining agent
proposed the following new provision:
11.08 The Employer shall post
bargaining unit vacancies when they occur.
15 The
bargaining agent submitted that the current practice of the employer is to send
an email to all bargaining unit members when a vacancy occurs. The purpose of
the proposal is to enshrine that practice into the collective agreement.
16 The
employer submitted that the proposal was outside the jurisdiction of the Board
because it related to staffing. Subsection 55(2) of the PESRA states the
following:
No arbitral award shall deal
with the standards, procedures or processes governing the appointment,
appraisal, promotion, demotion, transfer, lay-off or release of employees...
17 The
employer relied on Public Service Alliance of Canada v. House of Commons,
Board File No. 485-H-12 (19910213), in which the Board determined that a
similar posting requirement was not within its jurisdiction.
18 The
Board has determined that it does not have the jurisdiction to consider this
proposal.
The position of the parties
[13]
The PSAC
argues that the question under review is whether the Board correctly concluded
that it did not have the jurisdiction to include the proposed provision on the
posting of vacant positions in the arbitral award. The PSAC asserts that this
question is one of “true” jurisdiction in the sense described in Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) and therefore reviewable by our
Court on a standard of correctness.
[14]
The PSAC
adds that that the simple posting of job vacancies cannot be described as
falling within the standards, procedures and processes governing the
appointment of employees captured by the prohibition set out under subsection
55(2) of the Act. The posting of a position does not affect the employer’s
prerogative to hire who it wishes for the position, nor does it interfere with
the employer’s discretion to establish processes or procedures for staffing positions.
The requirement to post simply seeks to ensure that the employees are notified
when bargaining unit vacancies occur.
[15]
The PSAC
added during the oral hearing before this Court that the Board’s decision also
lacked intelligibility since the reasoning used by the Board to reach its
conclusion on postings of vacant positions is not articulated in its decision.
[16]
The Senate
argues that the appropriate standard of review in this case is reasonableness,
not correctness. Relying principally on Dunsmuir, Nolan v. Kerry
(Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678 (Nolan) and Public
Service Alliance of Canada v. Canadian Federal Pilots Assn., 2009 FCA 223,
[2010] 3 F.C.R. 219 (Pilots Association), the Senate asserts that “true”
questions of jurisdiction reviewed on a standard of correctness are to be
narrowly construed.
[17]
The Senate
argues that a provision which requires the posting of vacancies deals with procedures
or processes governing the appointment, promotion or transfer of employees and
is thus precluded by subsection 55(2) of the Act, and it relies on Public
Service Alliance of Canada v. House of Commons, [1991] C.P.S.S.R.B. No. 36
(QL) to support its interpretation of that subsection. The Senate also argues
that the inclusion of a provision concerning posting within the collective
agreement would open the door to the grievance and arbitration process
determining the scope of the rights contained in that provision. Though PSAC
asserts that its proposal is purely informational, the Senate fears that an arbitrator
may well find otherwise. It relies for this proposition on various grievance
arbitration decisions interpreting analogous provisions in other collective
agreements as restricting an employer’s right to keep a position vacant or to
divide the duties of a vacant full time position into two or more part time
positions.
The standard of review
[18]
This is
the first application for judicial review of an arbitral award in which the
interpretation and application of subsection 52(2) of the Act has been in issue.
Consequently, the degree of deference to be accorded on that issue has not yet
been determined by this Court and must be determined in this case.
[19]
A
standard of review analysis must be contextual and is dependent on the
application of a number of factors, including: (1) the presence or absence of a
privative clause; (2) the purpose of the tribunal as determined by
interpretation of its enabling statute; (3) the nature of the question at
issue, and; (4) the expertise of the tribunal: Dunsmuir at para. 64.
Privative clause
[20]
Section 72
of the Act reads as follows:
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72. (1) Except as provided in this Part,
every order, award, direction, decision, declaration or ruling of the Board,
an arbitrator appointed under section 49 or an adjudicator is final and shall
not be questioned or reviewed in any court.
(2) No order shall be made or process entered, or
proceedings taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review, prohibit
or restrain the Board, an arbitrator appointed under section 49 or an
adjudicator in any of the proceedings of the Board, arbitrator or
adjudicator.
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72. (1) Sauf
exception dans la présente partie, toute ordonnance, décision arbitrale ou
autre, instruction ou déclaration de la Commission, d’un arbitre nommé en
vertu de l’article 49 ou d’un arbitre de griefs est définitive et non
susceptible de recours judiciaire.
(2) Il n’est admis
aucun recours ou décision judiciaire — notamment par voie d’injonction, de certiorari,
de prohibition ou de quo warranto — visant à contester, réviser,
empêcher ou limiter l’action de la Commission, d’un arbitre nommé en vertu de
l’article 49 ou d’un arbitre des griefs.
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Purposes of the
Board under the Act
[21]
Under
section 10 of the Act the Board is provided with wide authority to manage
labour relations involving the House of Commons and the Senate, including under
sections 50 to 61 of the Act, the extraordinary power to determine through
arbitration the binding conditions of employment which the parties must implement.
The purposes of the Act, as well as the purposes of the Board operating under
the Act, are clearly to facilitate the resolution of labour disputes involving
the Senate and the House of Commons expeditiously, inexpensively and with
relatively little formality.
Nature of the question
[22]
Deference
will usually result where a tribunal is interpreting its own statute or
statutes closely connected to its functions, and such deference has been found
particularly relevant in regard to adjudication in labour law: Dunsmuir at
para. 54. Barring a question beyond the tribunal’s jurisdiction, or outside the
tribunal’s expertise, or of central importance to the legal system, a
tribunal’s interpretation of its “home” statute will normally be reviewed on a
standard of reasonableness.
[23]
The
parties concede that the interpretation and application of subsection 55(2)
does not raise an issue of central importance to the legal system nor does it
delineate the Board’s authority in regard to another tribunal. Under the
criteria developed in Pilots Association at para. 50, this would be the
end of the standard of review inquiry. Moreover, it is clear that subsection
55(2) of the Act concerns matters closely related to labour relations which
fall under the core expertise of the Board. The PSAC nevertheless contends that
since this subsection limits the jurisdiction of the Board, its interpretation
and application consequently raise a “true” question of jurisdiction. The PSAC
relies on paragraph 59 of Dunsmuir where Bastarache and LeBel JJ. note
that “true jurisdiction questions arise where the tribunal must explicitly
determine whether its statutory grant of power gives it authority to decide a
particular matter” adding that “[t]he tribunal must interpret the grant of
authority correctly or its actions will be found to be ultra vires or to
constitute a wrongful decline of jurisdiction.”
[24]
Bastarache
and LeBel JJ. however also note in paragraph 59 of Dunsmuir that these
“true” questions of jurisdiction will be narrow, and they caution against
reviewing judges branding as jurisdictional questions that are doubtfully so.
Rothstein J. further clarified what is meant by a “true” question of
jurisdiction in Nolan at paragraphs 33 and 34:
[33] Administrative tribunals are creatures of statute and
questions that arise over a tribunal’s authority that engage the interpretation
of a tribunal’s constating statute might in one sense be characterized as
jurisdictional. However, the admonition of para. 59 of Dunsmuir is
that courts should be cautious in doing so for fear of returning “to the
jurisdiction/preliminary question doctrine that plagued the jurisprudence in
this area for many years”.
[34] The inference to be drawn from paras. 54 and 59 of Dunsmuir
is that courts should usually defer when the tribunal is interpreting its own
statute and will only exceptionally apply a correctness of standard when
interpretation of that statute raises a broad question of the tribunal’s
authority.
[25]
Subsection
55(2) of the Act does not raise “a broad question of the tribunal’s authority.”
It requires the Board to exclude from an arbitral award all matters dealing
with standards, procedures or processes governing the “appointment, appraisal,
promotion, demotion, transfer, lay-off or release of employees,” and in that
respect it is a provision that speaks to the Board’s jurisdiction. However, in
the context of a standard of review analysis, the more important point is that
it requires the Board to analyse a proposal from a party for inclusion in the
arbitral award in order to determine whether it falls under the scope of the
exclusion. The interpretative activities and processes carried on by the Board under
subsection 55(2) thus principally concern the wording of the proposals made to
it by a party in order to determine if a standard, procedure or process referred
to in that subsection would be impacted by these proposals. That determination is
fact specific, and necessarily engages the Board’s special expertise in
relation to the content, operation and enforcement of arbitral awards, as well
as its understanding of what acts or activities are contemplated by the phrase
“standards, procedures or processes governing the appointment, appraisal
promotion, demotion, transfer, lay-off or release of employees.”
[26]
Such an
inquiry is far from raising a broad question of jurisdiction. Consequently,
irrespective of whether the criteria developed in Pilots Association should
apply here, a matter on which I need not express an opinion, the nature of the
question at issue in this judicial review is not one of “true” jurisdiction.
Expertise of
the Board
[27]
The Board
is clearly a specialized tribunal with expertise in matters of labour relations
in the public sector. The composition of the Board is however different than
usual when reaching an arbitral award under the Act. Sections 47 and 48 of the
Act indeed provide that in addition to a member of the Board, two other persons
are selected to carry out the arbitration, of which one is selected from a
panel of persons representative of the interests of the employers and the other
is selected from a panel of persons representative of the interests of the
employees. These two additional persons are deemed to be members of the Board
for the period of the arbitration proceedings in respect of which they are
selected.
[28]
The PSCA
argues that these additional temporary members diminish the expertise of the
Board when it sits for the purposes of binding arbitration under the Act, and
consequently this Court should apply a lower standard of deference to decisions
resulting from such a process. I disagree.
[29]
Subsection
47(3) of the Act requires that the two additional members must be eligible as
members of the Board, with the consequential requirement that these persons
must have knowledge of or experience in labour relations as a condition of
eligibility pursuant to paragraph 18(1)(e) of the Public Service
Labour Relations Act. Consequently, all persons carrying out binding
arbitrations under the Act must have knowledge of or experience in labour
relations.
[30]
It is
common practice in many employee grievance processes to add employer and union
assessors to assist an arbitrator in reaching a decision, and I am aware of no
authority which has held that such a practice somehow reduces the expertise of
the arbitrator or otherwise detrimentally taints the process. In my view, on
the contrary, the addition of persons representing the interests of the
employers and of the employees may well improve the process and add expertise.
I see no reasons to find differently in the case of a binding arbitral award
under the Act.
Conclusion of the standard of
review
[31]
Based on
the above factors, I therefore conclude that the applicable standard of review
is reasonableness. This standard has been described as follows in Dunsmuir
at para. 47:
[47] Reasonableness is a deferential standard animated by
the principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may
give rise to a number of possible, reasonable conclusions. Tribunals have
a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Is the Board’s decision reasonable?
[32]
A
requirement to post bargaining unit vacancies when they occur appears prima
facie to be a requirement dealing with procedures or processes governing
the appointment, promotion or transfer of employees. The PSAC however asserts
that such a requirement would be purely informational in scope, and would not
affect any management prerogative; consequently it should not be contemplated
by the exclusions set out in subsection 55(2) of the Act. In light of the
current policies of the Senate, this assertion does not stand up to close
scrutiny.
[33]
The
Senate’s policies provide that a position may be staffed through either an
advertised or non-advertised appointment process. Consequently, whether or not a
notice of a vacant position is given will depend on which form of appointment
the Senate’s managing staff chooses to apply. The requirement to post
bargaining unit vacancies when they occur would negate the current Senate’s
hiring policy allowing for appointments to proceed without any advertisement in
appropriate circumstances.
[34]
Though the
Senate may indeed be currently informing employees of positions available under
a non-advertised appointment process, this is a matter of employer discretion and
courtesy which can be suspended or abandoned altogether. Including in an
arbitral award a requirement to post bargaining unit vacancies when they occur
would make this discretionary practice compulsory. There is a major difference
between a discretionary employer practice and a compulsory and binding legal
obligation set out in a collective agreement or in an arbitral award.
[35]
I
therefore find that the Board acted reasonably in concluding that it did not
have jurisdiction under subsection 55(2) of the Act to consider a proposal to
post bargaining unit vacancies when they occur. This outcome falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[36]
The PSAC
however adds that even if the outcome is found to be reasonable, the Board’s
award should nevertheless be quashed since it lacks intelligibility in that no
reasons are set out in the award explaining how this conclusion was reached.
Here again, I cannot accept the PSAC’s argument. The lack of detailed reasons
is the result of the Act and of the peculiarities associated with binding
arbitral awards. Subsection 56(1) of the Act specifically provides that no
report or observations are to be made by the two members appointed from the
panels representative of employer and employee interests, while subsection
56(4) adds that the award itself is to be made in a form susceptible of being
read and interpreted with, or annexed to and published with any collective
agreement dealing with the other terms and conditions of employment. These
provisions clearly limit the extent of the reasons required in drafting arbitral
awards.
[37]
Subsections
56(1) and (4) of the Act read as follows:
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56. (1) An arbitral award shall be signed
by the member of the Board who is not a member selected from a panel
appointed under section 47 and copies thereof shall be transmitted to the
parties to the dispute and no report or observations thereon shall be made or
given by either of the members selected from a panel appointed under section
47.
(4) An arbitral award shall, wherever possible, be made
in such form
(a) as will be susceptible of being read and
interpreted with, or annexed to and published with, any collective agreement
dealing with other terms and conditions of employment of the employees in the
bargaining unit in respect of which the arbitral award applies; and
(b) as will enable its incorporation into and
implementation by regulations, by-laws, directives or other instruments that
may be required to be made or issued by the employer or the relevant
bargaining agent in respect thereof.
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56. (1) La
décision arbitrale est signée par le commissaire attitré visé à l’article 47;
des exemplaires en sont transmis aux parties au différend et les deux commissaires
choisis au sein de chacun des groupes constitués en vertu de l’article 47 ne
peuvent faire, ni communiquer, de rapport ou d’observation à son sujet.
(4) La décision
arbitrale est rédigée, dans la mesure possible, de façon à :
a) pouvoir
être lue et interprétée par rapport à une convention collective statuant sur
d’autres conditions d’emploi des employés de l’unité de négociation à
laquelle elle s’applique, ou être jointe à une telle convention et publiée en
même temps;
b)
permettre son incorporation dans les règlements d’application, les règlements
administratifs, les instructions ou autres actes que l’employeur ou l’agent
négociateur compétent peuvent être tenus de prendre en l’espèce, ainsi que sa
mise en oeuvre au moyen de tous ces documents officiels.
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[38]
The existence of justification,
transparency and intelligibility within the decision-making process is to be
determined in light of the particular circumstances of each case. Here, the
Board has focussed on the relevant factors and evidence, has considered the
representations of the parties, and has not impeded an intelligent judicial
review of its decision. The Board accepted the Senate’s submissions on the
scope of subsection 55(2) of the Act, and its decision, though brief, is both
clear and cogent. The parties have had no difficulties whatsoever in
articulating their arguments in this judicial review, and the reasons
sustaining the Board’s decision are clearly intelligible in the circumstances
of this case.
[39]
I would
therefore dismiss this application for judicial review, with costs in favour of
the respondent.
"Robert M.
Mainville"
“I agree
Pierre
Blais C.J.”
“I agree
K.
Sharlow J.A.”
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