Date: 20031114
Docket: T-198-02
Citation: 2003 FC 1337
OTTAWA, ONTARIO, FRIDAY, THIS 14TH DAY OF NOVEMBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JACK JANVEAU
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Jack Janveau, has been an employee of the Earth Sciences Sector of Natural Resources Canada since 1971. Prior to April 1, 1999, his position was classified as part of the Computer Services Group (the "CS Group") and governed by the terms and conditions of the CS Group collective agreement, negotiated between the Treasury Board and the Professional Institute of the Public Service of Canada (the "PIPSC"). As an employee classified as CS-02, in addition to the rate of pay to which he was entitled, Appendix "E" to the collective agreement provided Mr. Janveau with a monthly allowance of $176 described as a "terminable allowance". The allowance was payable to "incumbents of positions at the CS-1 to CS-5 levels for performance of duties in the Computer Systems Group" in an "effort to resolve retention problems".
[2] Effective April 1, 1999, the Applicant's position was downwardly reclassified as EG-04, which is part of the Technical Services Group ("TS Group"). This group is represented by the Public Service Alliance of Canada (the "PSAC"), another certified bargaining agent. The EG-04 position in the TS Group has a lower attainable maximum rate of pay than the Applicant's former CS-02 position in the CS Group. Mr. Janveau was advised that he would "continue to have the same rate of pay as the CS-02 regardless of the new lower classification level of your position as long as you remain in your current position".
[3] Mr. Janveau continued to receive a terminable allowance until September 2000 when he was informed that payment of the allowance after his reclassification had been in error. Mr. Janveau commenced a grievance that was ultimately heard, pursuant to paragraph 92(1)(a) of the Public Service Staff Relations Act, R.S., c. P-35, s. 1("PSSRA"), by Deputy Chairperson Marguerite-Marie Galipeau ("Adjudicator") of the Public Service Staff Relations Board (the "PSSRB"). In her decision dated January 9, 2002, the Adjudicator denied the grievance for the following reasons:
· the CS Group collective agreement ceased to apply to Mr. Janveau upon reclassification as his position was no longer part of the CS Group bargaining unit;
· the Memorandum of Understanding ("MOU") dated July 21, 1982 between the Treasury Board and PIPSC (discussed below) is not applicable to Mr. Janveau, as he is no longer an employee whose bargaining agent is the PIPSC, as required by section 1 of the MOU; and
· even if the MOU did apply to Mr. Janveau, it would not protect his entitlement to the terminable allowance. This is because the MOU has to be read together with the collective agreement and (1) the MOU applies to "pay upon reclassification" and (2) the collective agreement is clear that the terminable allowance "does not form part of an employee's salary and, therefore, is not pay."
[4] Mr. Janveau seeks judicial review of that decision. In addition to the Respondent and Mr. Janveau, PSAC made submissions at this hearing, having been granted intervener status in this proceeding by Order of Beaudry J. dated April 4, 2002.
Issues
[5] The issues raised by this application may be stated as follows:
1. Did the Adjudicator err in concluding that the collective agreement and the MOU did not apply to Mr. Janveau after his reclassification to the EG-04 group?
2. Did the Adjudicator err in concluding that, even if the MOU applies, it does not protect the terminable allowance that was payable to Mr. Janveau while he was part of the CS group?
Memorandum of Understanding
[6] As the MOU is the key document to be interpreted, it is worthwhile to set out the relevant provisions.
General
1. This Memorandum of Understanding sets out conditions of employment respecting pay upon reclassification for all employees whose bargaining agent is the Professional Institute of the Public Service of Canada.
2. This Memorandum of Understanding shall remain in effect until amended or cancelled by mutual consent of the parties.
3. This Memorandum of Understanding supersedes the Regulations respecting Pay on Reclassification of Conversion where the Regulations are inconsistent with the Memorandum of Understanding.
4. Where the provisions of any collective agreement differ from those set out in the Memorandum of Understanding, the conditions set out in the Memorandum of Understanding shall prevail.
5. This Memorandum of Understanding will form part of all collective agreements to which the Professional Institute of the Public Service of Canada and Treasury Board are parties, with effect from December 13, 1983.
Part 1
Part 1 of this Memorandum of Understanding shall apply to the incumbents of positions which will be reclassified to a group and/or level having a lower attainable maximum rate of pay after the date this Memorandum of Understanding becomes effective.
***
2. Downward reclassification notwithstanding, an encumbered position shall be deemed to have retained for all purposes the former group and level. In respect to the pay of the incumbent, this may be cited as Salary Protection Status and subject to Section 3(b) below shall apply until the position is vacated or the attainable maximum of the reclassified level, as revised from time to time, becomes greater than that applicable, as revised from time to time, to the former classification level. Determination of the attainable maximum rates of pay shall be in accordance with the Retroactive Remuneration Regulations.
3. (a) The Employer will make a reasonable effort to transfer the incumbent to a position having a level equivalent to that of the former group and/or level of the position.
(b) In the event that an incumbent declines an offer of transfer to a position as in (a) above in the same geographic area, without good and sufficient reason, that incumbent shall be immediately paid at the rate of pay for the reclassified position.
***
[7] On December 22, 1987, the Treasury Board issued a Bulletin (the "Bulletin") clarifying the words "for all purposes" in the MOU. In the Bulletin, the Treasury Board stated that, if an individual is reclassified and represented by the same bargaining unit both before and after downgrading, the incumbent will "retain the rates of pay and all other terms and conditions of employment applicable to the higher group and/or level". In all other situations, upon reclassification, "the expression "for all purposes" is applicable to the rates of pay only".
Analysis
Preliminary Issue: What is the applicable standard of review?
[8] Mr. Janveau submits that the applicable standard of review for determining whether a collective agreement continues to exist or subsist for the purposes of a grievance has been established by the Supreme Court of Canada as correctness (Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230 at paras. 19, 29, 38). Accordingly, Mr. Janveau submits that, in respect of Issue #1, the Adjudicator in this case was required to be correct.
[9] With respect to the second issue, which involves interpretation of the MOU, parties are agreed that the most deferential standard of patent unreasonableness should apply to the decision of the Adjudicator.
[10] Since there is no substantial dispute as to the appropriate standard of review, for purposes of this judicial review, I have assumed that the standards of correctness for the first issue and patent unreasonableness for the second issue apply. I note, however, that a pragmatic and functional analysis for the first issue might lead to a conclusion that the standard ought to be one of reasonableness simpliciter.
Issue #1: Effect of reclassification
(a) Continuation of the CS Bargaining Unit Collective Agreement
[11] Mr. Janveau submits that, according to the clear and unambiguous terms of the MOU, upon downward reclassification, the Applicant was entitled to remain in the CS Group bargaining unit and continue to be covered by the terms and conditions of the CS Group collective agreement. In his submission, as long as Mr. Janveau's position remained encumbered, he retained, "for all purposes", the CS-02 classification. He argues that the Adjudicator erred in concluding that the Applicant's reclassification automatically meant that he came within the TS Group bargaining unit, represented by the PSAC and that the Adjudicator failed to give effect to the words "for all purposes" in the MOU.
[12] While agreeing with Mr. Janveau, PSAC further submits that the effect of the MOU is to delay a classification of a given position until such time as the new classification level parallels the old. In PSAC's view, this means that the position necessarily remains in the bargaining unit to which it had been assigned in the first place. Only when those conditions are met does the deeming of the former group and level cease, at which point the reclassified position is included in the other bargaining unit.
[13] In my view, Mr. Janveau ceased to be part of the CS collective agreement on April 1, 1999. Section 1 of the MOU indicates that its applicability is triggered upon reclassification, which is inconsistent with the position of Mr. Janveau and PSAC that reclassification does not become effective until the conditions in the MOU are fulfilled. Similarly, the preamble to Part 1 of the MOU states that it "shall apply to the incumbents for positions which will be reclassified".
[14] Second, Mr. Janveau and PSAC would have me read the words "for all purposes" in part 1, section 2 of the MOU as meaning that the reclassified position is not deemed effective until the conditions in this provision are met. However, this interpretation of part 1, section 2 of the MOU ignores the opening words of this provision, which are "Downward reclassification notwithstanding...". This suggests that the conditions that follow will be fulfilled in spite of the reclassification. Implicit in this is that the reclassification has occurred and is effective. In fact, the very provision that Mr. Janveau and PSAC rely upon contains a comparison that is drawn between the reclassified level and the former classification level. Such a comparison would be illogical if their argument is accepted.
[15] For these reasons, the Adjudicator's decision that Mr. Janveau was reclassified to the TS Group effective April 1, 1999 is correct.Mr. Janveau did not remain part of the CS Group bargaining unit after reclassification of his position. Nor did he remain a member of PIPSC. Thus, if Mr. Janveau is entitled to rely on certain rights that arose pursuant to the collective agreement, he must find his entitlement, if it applies, in the MOU.
(b) Applicability of the MOU
[16] The question that I now must consider is whether, as a result of the MOU, the right of Mr. Janveau to a terminable allowance continues even though Mr. Janveau transferred from the CS Group to the TS Group. Mr. Janveau and PSAC submit that the right to a terminable allowance continues to apply.
[17] It is important to understand the context in which the MOU exists. Within the large workforce of the federal public service, the need often arises to redeploy employees to new positions or to recognize changing job requirements. The Treasury Board has established policies and regulations to govern these evolving needs of the public service. For employees who, after such a change, would be entitled to lesser pay or benefits, the Treasury Board established the policy of "red circling", meaning that the rate of pay of the affected employee remains at the former level until he "catches up" or is assigned to another position. The policy is set out in Regulations Respecting Pay on Reclassification or Conversion (Treasury Board of Canada Secretariat, November 1, 1991) (the "Regulations"). In addition, Treasury Board has negotiated several different memoranda of understanding with its bargaining units that replaced or changed the Regulations for the members of the applicable bargaining unit. It is important to remember that a reclassified employee who is not a member of a bargaining unit that has entered into a memorandum of understanding will still be protected under theRegulations.
[18] There is no legal impediment to a bargaining agent negotiating benefits for its members that continue to apply after a member is no longer part of the bargaining unit (Dayco, supra at paras. 42, 43, 45, 55, 60, 88; Canadian Air Traffic Control Association v. The Queen, [1985] 2 F.C. 84 (C.A.) at pp. 91 and 93; The Queen v. Lavoie, [1978] 1 F.C. 778 (C.A.) at p. 783). This is not a novel concept. If it were otherwise, it would render meaningless the wide range of collective agreement benefits that might extend even after a collective agreement ceases to apply. However, in this case, I agree with the Adjudicator's conclusion that there was no extension of rights to the employees who were reclassified to a position represented by a different bargaining agent.
[19] Mr. Janveau argues that the only reasonable interpretation of paragraph 1 of the MOU, which states that this agreement protects "all employees whose bargaining agent is the [PIPSC]" is that it applies to all employees whose bargaining agent is the PIPSC at the time of reclassification. The substance of this argument is that, pursuant to the MOU, PIPSC negotiated continuing benefits for both those employees who stayed within one of its bargaining units after reclassification and those who moved to another bargaining unit. I do not agree.
[20] As noted, it would have been possible for the parties to the MOU to bargain for rights to continue to apply in situations where the reclassification resulted in a change in the member's bargaining agent. That was not done in this case. The words of the opening clause of the MOU make it clear, in my view, that the terms of the MOU apply to members of PIPSC who remain PIPSC members after the reclassification. It is silent on the impact of reclassification on those members who, upon reclassification, are no longer members of PIPSC. Thus, unless there is some other evidence that indicates a contrary intention, the MOU between the Treasury Board and the PIPSC only applies to employees who are governed by collective agreements to which the Treasury Board and PIPSC are parties.
[21] The only expert evidence before the Adjudicator was that of Mr. Bradbury, a Senior Compensation Policy Analyst. He pointed out that the interpretation that has been applied to the MOU by the Treasury Board is as set out in the Bulletin referred to above. His evidence was that the MOU only applies to the situation where the employee remains in the same bargaining unit. No further evidence was before the Adjudicator on the interpretation of the MOU or the intent of the parties who negotiated it.
[22] In addition to the evidence of Mr. Bradbury, we can also see that Treasury Board was consistent in its actions by the notice to Mr. Janveau of his reclassification. In a letter dated January 21, 1999, Mr. Janveau was advised of his reclassification. In that letter, it was stated that "It is the policy of the Treasury Board to provide Salary Protection to employees of a position reclassified to a group and level having a lower attainable maximum rate of pay." There is no reference to the MOU. In other words, the pay protection to Mr. Janveau did not arise out of the MOU but from a policy of the Treasury Board and from its regulations respecting pay on reclassification or conversion. It is the policy and the Regulations that would govern Mr. Janveau's rights upon reclassification and not the MOU. Mr. Janveau did not grieve his reclassification.
[23] Contrary to the submissions of Mr. Janveau and PSAC, I do not view the Bulletin as a unilateral attempt to amend the MOU. The intent of the Bulletin was "to clarify the application of the expression "deemed to have retained for all purposes the former group and level" as contained in paragraph 4, Part 1A of the [Regulations] and in many of the Memoranda of Understanding on the subject." The Bulletin was an effort to provide clarification to employees and managers within the complex framework of the Regulations and many MOUs that dealt with the same subject. As a matter of contract law, it would not have been possible for the Treasury Board to unilaterally amend any such MOU by the Bulletin. However, I see no attempt or effect that could amount to an attempted amendment of the MOU. The clarification provided was simply a confirmation of the words of the MOU and not an amendment.
[24] Mr. Janveau relies in particular on the Supreme Court of Canada decision in Dayco, supra. In that case, the employer had terminated benefits to retired employees after the shutdown of its plant, arguing that the benefits expired with the collective agreement. The Supreme Court of Canada determined that vested retirement rights of the aggrieved employees could survive the collective agreement and, therefore, could properly be the subject of a grievance before an arbitrator. I note that retirement benefits are, by their nature, rights that do not arise until some time in the future and that are not related to the particular job functions. The rights in the case before me are quite different in nature, in that they arise at the time of and because of the scope of the position within the CS Group. If the position changes and is, accordingly, reclassified, the duties that warrant the benefit - such as an allowance - no longer exist. As of the time of reclassification, there is a fundamental change in the job of the person affected. In this case, I note that there was no grievance of the actual reclassification, indicating that Mr. Janveau accepted that the job description had changed. As a result, Mr. Janveau was no longer performing in a position for which an allowance had been negotiated or ought to be paid.
[25] PSAC points out that, in the federal public service, it often occurs that an employee may perform functions associated with a position in one bargaining unit while remaining a member of another bargaining unit. Even in those cases, the parties may agree that the employee's terms and conditions of employment respecting pay, classification and the payment of union dues remain those associated with the employee's substantive bargaining unit position (Professional Institute of the Public Service of Canada v. Senate of Canada, [1992] C.P.S.S.R.B. No. 39, aff'd [1993] F.C.J. No. 1426 (C.A.) (Q.L)). I agree that it is possible for parties to agree on such terms and conditions. However, in this case, there was no express agreement to extend the benefits.
[26] PSAC also submits that the actions of the Respondent employer are an attempt to evade binding obligations, which were voluntarily assumed, and should not be allowed
((Public Service Alliance Canada v. Canada (Treasury Board) (1987), 76 N.R. 229 (F.C.A.) at 238 [hereinafter P.S.A.C. (1987a)]; Public Service Alliance Canada v. Canada (Treasury Board), [1987] 2 F.C. 471 (C.A.) at 475, 478, [1986] F.C.J. No. 819 (C.A.) (QL) [hereinafter P.S.A.C. (1987b)]; Eurocan Pulp & Paper Co. and C.E.P., Loc. 298 (First Aid Attendants) (Re) (1998), 72 L.A.C. (4th) 153)). The difficulty with this argument is that, under the terms of this particular MOU, the Respondent employer did not assume the obligations of continued benefits or even of a protected rate of pay for employees who left the bargaining unit upon reclassification. For those employees, such as Mr. Janveau, the protection arises from the Regulations and not the MOU.
[27] In conclusion on this question, the Adjudicator was, in my view, correct in her conclusion that the MOU did not apply to Mr. Janveau who, upon reclassification, was no longer a member of PIPSC bargaining unit.
Issue #2: Does the MOU only protect pay or does it also protect the terminable allowance?
[28] Since I have concluded that the MOU does not apply to Mr. Janveau's reclassification, it is not necessary to determine whether the MOU operates to protect the terminable allowance. Nevertheless, since both the Adjudicator and the parties to this proceeding addressed this issue, I will comment on it as well.
[29] The interpretation of the MOU falls within the Adjudicator's "home territory" and the conclusions will only be overturned if they are patently unreasonable or clearly illogical.
[30] Mr. Janveau submits is that the term "pay" as used in the MOU protects the terminable allowance.
[31] The terms "pay, "salary" and "allowance" are not defined in the MOU or the collective agreement. In the MOU, the word "pay" is used interchangeably with the term "salary". In light of the absence of definitions upon which the Adjudicator could rely, it was open to her to give these terms their ordinary and usual meaning in the context of the situation and the collective agreement.
[32] Article 47 of the CS Group collective agreement deals with "Pay Administration". This section refers to an employee's pay not only using the terms "pay" and "rate of pay" but also the term "salary". Given the ordinary meaning of the terms "pay", "salary" and "allowance", and the interchange of the terms "pay" and "salary" in the collective agreement, Appendix "E" of the collective agreement and the MOU itself, it is not patently unreasonable that the Adjudicator found that, even if the MOU applied to Mr. Janveau, he would not have qualified for a terminable allowance. The Adjudicator reasoned that, because the MOU deals with pay and salary and because clause 1(b) of Appendix "E" of the collective agreement states specifically that "The Terminable Allowance . . . does not form part of an employee's salary", the terms, as used in the MOU, did not include the allowance.
[33] Mr. Janveau submits alternative definitions of the terms in question. In effect, Mr. Janveau is arguing with the Adjudicator ought to have preferred the definitions he now puts forward rather than the clause in Appendix "E" to the collective agreement. This is, in essence, a disagreement with the weight that the Adjudicator gave to the evidence. It is not up to the court to interfere with that finding. This aspect of her decision was not patently unreasonable.
[34] Mr. Janveau also points to the clause in Part I of the MOU that states that "Downward reclassification notwithstanding, an encumbered position shall be deemed to have retained for all purposes the former group and level". Mr. Janveau submits that the MOU, therefore, protects not only "pay" associated with the former group but, rather, all terms and conditions of employment that attached to the former position.
[35] I find it troubling that the Adjudicator did not deal directly with two aspects of the issue of whether the MOU would operate to protect the terminable allowance. Firstly, she did not, in her reasons, address the inclusion of the words "for all purposes" in the MOU. Secondly, she did not consider that her interpretation of the MOU might be in conflict with the interpretation of the Treasury Board as set out in the Bulletin. Since I am of the view that her determination on Issue #1 was correct, my concerns need not be addressed.
Conclusion
[36] In conclusion, for these reasons, I am of the view that this application should not succeed. In his reclassified position, Mr. Janveau is not entitled to a continuation of the terminable allowance on the basis that he is not subject to the MOU.
[37] No costs were sought by the Respondent.
ORDER
This Court orders that the application is dismissed.
"Judith A. Snider"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-198-02
STYLE OF CAUSE: JACK JANVEAU v. ATTORNEY GENERAL
OF CANADA ET AL
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, November 10, 2003
REASONS FOR ORDER AND ORDER:
THE HONOURABLE MADAM JUSTICE SNIDER
DATED: Friday, November 14, 2003
APPEARANCES:
Christopher Rootham FOR APPLICANT
John G, Jaworksi FOR RESPONDENT
Andrew Raven FOR INTERVENER
SOLICITORS OF RECORD:
NELLIGAN O'BRIEN PAYNE LLP FOR APPLICANT
BARRISTERS & SOLICITORS
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO
RAVEN, ALLEN, CAMERON & BALLANTYNE FOR INTERVENER
BARRISTERS AND SOLICITORS
OTTAWA, ONTARIO