Date: 20040225
Docket: T-1135-02
BETWEEN:
RONALD BRESCIA, ROSA CARROLL, DEBRA JOLICOEUR
and TERRENCE MATSON
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD and
THE CANADIAN GRAIN COMMISSION
Respondents
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of Mr. Barry W. Senft, Chief Commissioner of the Canadian Grain Commission, dated June 18, 2000 which dismissed the applicants' grievances pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"). The applicants grieved the decision to place them, as full-time permanent employees, on "off-duty status" without pay for periods up to three months.
BACKGROUND
[2] The issue in this case is whether the government has the right to place its permanent employees on "off-duty status" without pay for three months due to a work shortage.
[3] The applicants state that there was no lawful authority to place them, and 65 other full-time employees, on "off-duty status" without pay. "Off-duty status" refers to the placement of employees in a no-work, no-pay situation, such that employees continue to be employed with benefits such as pension entitlement, but are temporarily not at work.
[4] The applicants bring this application on their own behalf since this Court has already determined that their bargaining agent, the Public Service Alliance of Canada ("PSAC"), does not have standing to challenge the decision of the Canadian Grain Commission. See the decision rendered by Tremblay-Lamer J., in Public Service Alliance of Canada v. Canada (Treasury Board) (2001), 205 F.T.R. 270, upheld by the Federal Court of Appeal (2002), 293 N.R. 325.
THE FACTS
[5] The applicants are full-time operational employees at the Canadian Grain Commission ("CGC") facility in Thunder Bay. That facility has approximately 105 non-seasonal employees who provide services to the grain industry at the port of Thunder Bay. Grain arrives by rail at the Thunder Bay facility ("TBF"), and is then transported by ship through the St. Lawrence Seaway system ("Seaway"). The services provided at the TBF include the inspection and weighing of grain shipments, checking shipments for infestation, managing the documentation of shipments, and conducting audits of terminal stocks.
[6] Although workers are continuously employed, work volumes decrease substantially in the winter months because the Seaway is closed for shipping. The work available depends on the rail program of the Canadian Wheat Board ("CWB"). In the winter of 1999-2000 the CWB decided not to move railcars of grain through Thunder Bay. The decision was communicated to the CGC on December 6, 1999. This was the first time, in at least twenty years, that the CWB did not have a winter rail program in Thunder Bay. As a direct result, the CGC made the decision to place three groups of employees on off-duty status: (1) primary products inspectors ("PI-CGC"); (2) engineering and scientific support ("EG"); and (3) general labour-grain handlers and weighpersons ("GL-GHW"). The total number of affected employees was 69.
[7] The decision was officially communicated to all affected employees by way of letter dated December 21, 1999, but employees had already been advised of the likelihood of being placed on off-duty status before the formal notice. All affected employees were formally advised that they would be placed on off-duty status effective January 10, 2000 for a period to end no later than April 3, 2000; all affected employees were actually returned to work by March 13, 2000. The off-duty status decision was implemented in the following manner:
(a) within a couple of weeks, certain employees were called back to work for one or two week blocks;
(b) employees were called back on the basis of alphabetical order;
(c) if an employee was not present to receive the call, the next name on the alphabetical list of employees would be contacted;
(d) employees were telephoned on the Thursday or Friday preceding the Monday on which they were requested to return to work;
(e) employees who had opted for a leave with income averaging ("LWIA") to lessen the effect of the off-duty status, were not telephoned for this work;
(f) one seasonal employee performed two weeks of work from January 17 to January 30; and
(g) all employees were returned to work by March 13, 2000.
Reasons for the Decision to Place the Employees on Off-Duty Status
[8] On December 9, 1999 all TBF employees received a memo from the Regional Director explaining the upcoming work shortage, and possible consequences. The memo states:
As you are all aware, terminal operations in the port this winter are going to be significantly reduced, even more so than in past years. As a consequence, some difficult decisions will have to be made with regard to staffing. Based on the information we have available at this time, we anticipate that we will be taking the following steps.
All term staff will be laid off as the handling volumes decrease. All seasonal staff will be placed on seasonal lay off, possibly as early as December 31, 1999. Seasonal staff will be returned to work as the work load warrants.
Most continuing staff at the PI-1, PI-3, EG-3 and GL-GHW-7 levels (including those paid at the GHW-7A1 level) will be placed on off-duty status. This could happen as early as January 10, 2000. It is anticipated that the off-duty status could last until early April 2000. [...] The commencement and return date for off-duty will be the same for all affected staff. [emphasis added]
[...]
Affected staff will be allowed to use earned leave credits to off-set the impact of seasonal lay off and off-duty status. Also, every consideration will be given to requests for alternative types of leave such as Leave With Income Averaging, Leave without Pay For Personal Needs, etc.
[...]
On December 20, an e-mail was sent to all TBF employees confirming the concerns identified in the December 9 memo. It states:
It now appears that the concerns identified in the memo of December 9, 1999 have now been confirmed. Work volumes this winter will be practically non-existent. [emphasis added]
All term and seasonal staff will be placed on lay off by the end of December. Off-duty status for identified staff will likely commence January 10, 2000. The classification levels are the same as those indicated in the earlier memo: PI-1, PI-3, GHW-7 levels (including those paid at the GHW-7A1 rate), and EG-3. Individual staff members will be advised of off-duty status by letter.
The Grievances
[9] On December 21, 1999 each affected employee received the following official notification of off-duty status:
Due to reduced volumes of grain expected through the port during the next three months, it has become necessary to place some employees on off-duty status. As a result of this decision, you will be placed on off-duty status beginning January 10, 2000. You will be recalled to work on or before April 3, 2000. It may be possible to provide you with some employment during this period depending on operational requirements, training and our ability to develop projects. We will endeavour to give you as much notice of recall as possible. [emphasis in original]
[...]
Due to the extent of the work volume reduction this winter, there are no feasible alternatives to off-duty status. We will continue to try and develop projects and reasonable training initiatives to reduce the impact of the off-duty period.
[10] The applicants then filed grievances pursuant to section 91 of the PSSRA, and requested that all monies and time lost during the off-duty period be reinstated to them. The Commissioner denied their grievances, and relief sought, by letter dated June 18, 2002, as follows:
[...]
Off-duty status was instituted as a result of a temporary lack of work. Article 25.01 of the Technical Services collective agreement specifies that "...scheduled hours of work shall not be construed as guaranteeing the employee minimum or maximum hours of work."
Managing work or lack of work does not constitute abuse of authority. Your grievance is therefore denied and your corrective action "all monies and/or lost time
be reinstated to me for the period of off-duty" is not granted.
[11] On June 24, 2002 the bargaining agent for the applicants, the Public Service Alliance of Canada (PSAC) requested clarification from the Commissioner as to the precise statutory authority relied on in placing employees in off-pay status. The Commissioner replied by letter dated June 28, 2002, that the authority was derived from the Financial Administration Act, R.S.C. 1985, c. F-11, ("FAA") and the jurisprudence of the Federal Court, as follows:
The CGC's authority to manage human resources flows from the Financial Administration Act (the "FAA"). The relevant provisions of the FAA are as follows:
7. (1) The Treasury Board may act for the Queen's Privy Council for Canada on all matters relating to:
(a) general administrative policy in the public service of Canada;
(b) the organization of the public service of Canada or any portion thereof, and the determination and control of establishments therein;
[...]
(e) personnel management in the public service of Canada, including the determination of the terms and conditions of employment of persons employed therein; and
(f) such other matters as may be referred to it by the Governor in Council.
11. (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;
[...]
(i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service.
In addition we note that the Federal Court of Canada has confirmed this right through P.S.A.C. v. Canada (Canadian Grain Commission). The Court found that the employer, in its managerial function, may do that which is not specifically prohibited by statute or collective agreement.
Based on the above we submit that the employer's authority it place employees on off-duty status has been recognized. Limitations to this managerial authority must be specifically located in either statute or collective agreement.
THE RELEVANT LEGISLATION
1. Public Service Staff Relations Act, R.S.C. 1985, c. P-35
| Definitions
2. (1) In this Act,
[...]
"employer" « employeur » "employer" means Her Majesty in right of Canada as represented by,
(a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and (b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned; [...]
Right to Present Grievances
Right of employee 91. (1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
Limitation
(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.
Right to be represented by employee organization
(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.
Idem
(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.
R.S., c. P-35, s. 90.
Adjudication of Grievances
Reference to Adjudication
Reference of grievance to adjudication
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
Approval of bargaining agent
(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.
Termination under P.S.E.A. not grievable
(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.
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Définitions
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
[...]
« employeur » "employer" « employeur » Sa Majesté du chef du Canada représentée :
a) par le Conseil du Trésor, dans le cas d'un secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I; b) par l'employeur distinct en cause, dans le cas d'un secteur de l'administration publique fédérale spécifié à la partie II de l'annexe I. [...]
Droit de déposer des griefs
Droit du fonctionnaire 91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé :
a) par l'interprétation ou l'application à son égard :
(i) soit d'une disposition législative, d'un règlement -- administratif ou autre --, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
Restrictions
(2) Le fonctionnaire n'est pas admis à présenter de grief portant sur une mesure prise en vertu d'une directive, d'une instruction ou d'un règlement conforme à l'article 113. Par ailleurs, il ne peut déposer de grief touchant à l'interprétation ou à l'application à son égard d'une disposition d'une convention collective ou d'une décision arbitrale qu'à condition d'avoir obtenu l'approbation de l'agent négociateur de l'unité de négociation à laquelle s'applique la convention collective ou la décision arbitrale et d'être représenté par cet agent.
Droit d'être représenté par une organisation syndicale
(3) Le fonctionnaire ne faisant pas partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée peut demander l'aide de n'importe quelle organisation syndicale et, s'il le désire, être représenté par celle-ci à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.
Idem
(4) Le fonctionnaire faisant partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée ne peut être représenté par une autre organisation syndicale à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.
S.R., ch. P-35, art. 90.
Arbitrage des griefs
Renvoi à l'arbitrage
Renvoi d'un grief à l'arbitrage
92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
Approbation de l'agent négociateur
(2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage.
Exclusion
(3) Le paragraphe (1) n'a pas pour effet de permettre le renvoi à l'arbitrage d'un grief portant sur le licenciement prévu sous le régime de la Loi sur l'emploi dans la fonction publique.
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2. Financial Administration Act, R.S.C. 1985, c. F-11
| Responsibilities of Treasury Board
7. (1) The Treasury Board may act for the Queen's Privy Council for Canada on all matters relating to
(a) general administrative policy in the public service of Canada;
(b) the organization of the public service of Canada or any portion thereof, and the determination and control of establishments therein; [...]
(e) personnel management in the public service of Canada, including the determination of the terms and conditions of employment of persons employed therein;
(e.1) the terms and conditions of employment of persons appointed by the Governor in Council that have not been established under this or any other Act of Parliament or order in council or by any other means; and (f) such other matters as may be referred to it by the Governor in Council.
Powers and functions of Treasury Board in relation to personnel management
11. (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;
[...]
(c) provide for the classification of positions and employees in 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;
[...]
(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
[...]
(i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service.
Limitation of powers and functions of Board in relation to matters expressly determined
(3) The powers and functions of the Treasury Board in relation to any of the matters specified in subsection (2) do not extend to any such matter that is expressly determined, fixed, provided for, regulated or established by any Act otherwise than by the conferring of powers or functions in relation thereto on any authority or person specified in that Act, and do not include or extend to any power or function specifically conferred on, or any process of personnel selection required or authorized to be employed by, the Public Service Commission by or under the authority of the Public Service Employment Act. |
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Attributions du Conseil du Trésor
7. (1) Le Conseil du Trésor peut agir au nom du Conseil privé de la Reine pour le Canada à l'égard des questions suivantes :
a) les grandes orientations applicables à l'administration publique fédérale;
b) l'organisation de l'administration publique fédérale ou de tel de ses secteurs ainsi que la détermination et le contrôle des établissements qui en font partie;
[...]
e) la gestion du personnel de l'administration publique fédérale, notamment la détermination de ses conditions d'emploi;
e.1) les conditions d'emploi des personnes nommées par le gouverneur en conseil qui ne sont pas prévues par la présente loi, toute autre loi fédérale, un décret ou tout autre moyen;
f) les autres questions que le gouverneur en conseil peut lui renvoyer.
Gestion du personnel
11. (2) Sous réserve des seules dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, le Conseil du Trésor peut, dans l'exercice de ses attributions en matière de gestion du personnel, notamment de relations entre employeur et employés dans la fonction publique :
a) déterminer les effectifs nécessaires à la fonction publique et assurer leur répartition et leur bonne utilisation;
[...]
c) assurer la classification des postes et des employés au sein de la fonction publique;
d) déterminer et réglementer les traitements auxquels ont droit les personnes employées dans la fonction publique, leurs horaires et leurs congés, ainsi que les questions connexes;
[...]
g) prévoir, pour des raisons autres qu'un manquement à la discipline ou une inconduite, le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur des personnes employées dans la fonction publique et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces mesures peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
[...]
i) réglementer les autres questions, notamment les conditions de travail non prévues de façon expresse par le présent paragraphe, dans la mesure où il l'estime nécessaire à la bonne gestion du personnel de la fonction publique. Pouvoirs limités du Conseil du Trésor
(3) Le Conseil du Trésor ne peut exercer ses pouvoirs et fonctions à l'égard des questions visées au paragraphe (2) et dans une autre loi lorsque celle-ci régit la matière expressément et non par simple attribution de pouvoirs et fonctions à une autorité ou à une personne déterminée; il ne peut non plus exercer des pouvoirs ou fonctions expressément conférés à la Commission de la fonction publique sous le régime de la Loi sur l'emploi dans la fonction publique, ni mettre en oeuvre des méthodes de sélection du personnel dont l'application relève, sous le régime de cette loi, de la Commission. |
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3. Public Service Employment Act, R.S.C. 1985, c. P-32
| Lay-Offs
Laying off employees 29. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside the Public Service, otherwise than where the employment of the employee is terminated in the circumstances referred to in paragraph 11(2)(g.1) of the Financial Administration Act, the deputy head, in accordance with the regulations of the Commission, may lay off the employee.
Effect of being laid off (2) An employee ceases to be an employee when the employee is laid off pursuant to subsection (1).
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Disponibilité
Mise en disponibilité 29. (1) L'administrateur général peut, en conformité avec les règlements de la Commission, mettre en disponibilité le fonctionnaire dont les services ne sont plus nécessaires faute de travail, par suite de la suppression d'une fonction ou à cause de la cession du travail ou de la fonction à l'extérieur de la fonction publique, sauf si le fonctionnaire a été licencié dans les circonstances prévues à l'alinéa 11(2)g.1) de la Loi sur la gestion des finances publiques.
Effet de la mise en disponibilité (2) Le fonctionnaire mis en disponibilité en vertu du paragraphe (1) perd sa qualité de fonctionnaire. |
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4. The Collective Agreement between the Treasury Board and the Public Service Alliance of Canada ("Technical Services collective agreement")
ARTICLE 6
MANAGERIAL RESPONSIBILITIES
6.01 Except to the extent provided herein, this agreement in no way restricts the authority of those charged with managerial responsibilities in the Public Service.
ARTICLE 25
HOURS OF WORK
[...]
25.01 An employee's scheduled hours of work shall not be construed as guaranteeing the employee minimum or maximum hours of work.
ISSUE
[12] The sole issue raised in this application is whether the CGC had the lawful authority to place the applicants on off-duty status without pay. Both parties agree that the standard of review is correctness.
Applicant's Position
[13] The applicants submit that there are no provisions in any legislation pertaining to employment in the Federal Public Service ("Public Service") which contemplate the right to place employees on off-duty status without pay. The applicants contend that nowhere in the FAA, PSSRA, PSEA, accompanying Regulations, or relevant collective agreements is the term "off-duty status", or an equivalent term defined, or even used. The applicants submit that the implied authority to impose "off-pay status" found by this Court in Public Service Alliance of Canada et al. v. Canadian Grain Commission and Canada (Treasury Board) et al. (1986), 5 F.T.R. 51 (hereinafter referred to as "P.S.A.C. v. Canadian Grain Commission") is no longer consistent with the jurisprudence, legislation, and directives governing employment in the public service.
[14] The applicants further submit that the authority of the Treasury Board as employer is restricted by subsections 11(3) and 11(4) of the FAA which expressly prohibits it from taking action on matters regulated by other Acts, including the PSEA, and restrict it's authority to sever employment, to only those circumstances where cause can be demonstrated. The applicants contend that these restrictions were enacted in 1992 and post-date the decision of this Court in P.S.A.C. v. Canadian Grain Commission, supra. The applicants therefore submit that Parliament must be taken to have expressly reserved all forms of severance of employment outside of terminations for cause to be regulated under the PSEA and under the supervision of the Public Service Commission.
[15] The applicants submit that the merit principle established in the PSEA applies to terminations due to a lack of work, and ought to have been applied by the respondents such that the least meritorious candidates were laid-off first, and the most meritorious candidates recalled to work first, rather than selections by alphabetical order. The applicants submit that the respondents do not have an unfettered authority to create or fill positions as it chooses, and that the PSEA together with the right of termination vested in the Treasury Board under the FAA, form a complete code by which a person may become separated from employment in the public service. The applicants rely on Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; Doré v. Canada, [1987] 2 S.C.R. 503; and Lucas v. Canada (Public Service Commission Appeal
Board), [1987] 3 F.C. 354 (C.A.)
[16] The applicants submit that Parliament could have provided, but deliberately chose not to provide for standards respecting temporary suspensions from employment without pay. The applicants contend that in 1978 Parliament specifically contemplated temporary suspensions, for lack of work, in Bill C-28, An Act To Amend the Public Service Staff Relations Act, which never received Final Reading or Royal Assent. The applicants submit that if the Treasury Board had the authority to temporarily suspend employees under the FAA, this proposed amendment to the PSSRA would have been unnecessary.
[17] Finally, the applicants submit that there is no express or implied authority conferred on the Treasury Board to cause employees to deplete accumulated benefits such as paid leave and vacation credits to lessen the financial impact of its decision. The applicants submit that their employment was unilaterally rendered seasonal in nature, and that this was a "scandalous and oppressive" interpretation of the FAA and the PSEA.
Respondent's Position
[18] The respondents submit that both arbitral labour relations jurisprudence and the jurisprudence of this Court have recognized the employer's authority to place employees on off-duty status. The respondents contend that limitations to the managerial authority must be specifically expressed in either statute or collective agreement. The respondents submit that the facts of this application do not present a lay-off situation , and as such the regulations and procedures under the PSEA do not apply.
[19] The respondents submit that the applicants are inviting this Court to ignore the relevant jurisprudence and the wording of the PSEA by reading "off-duty" status into the PSEA as being analogous to lay-off. The respondents contend that this approach strips the employer of its long recognized managerial authority to place employees on off-duty status, and imposes a burden not intended by Parliament.
[20] The respondents submit that the relevant collective agreements were negotiated after this Court's decision in P.S.A.C. v. Canadian Grain Commission, supra. The respondents submit that there is no limitation provided for in either of the relevant collective agreements, and that the applicants have made no reference to any such limitation. The respondents submit that the collective agreements preserve managerial authority and recognize the longstanding principle that where there is no work, there is no pay.
[21] The respondents submit that the application is an attempt by the applicants to achieve by judicial review what they were unable to achieve in collective bargaining, that is, guaranteed minimum hours of work. The respondents submit that since these benefits have been achieved recently at the negotiation table, this application should be denied.
[22] The respondents submit that 'off-duty status" is not a term of art, but a long recognized no work-no pay situation. Unlike seasonal workers, time spent on off-duty status is continuous employment, since affected employees continue to accrue pensionable service, and other benefits in the same manner as though they had been at work. The respondents contend that the applicants were clearly treated in a different manner from seasonal workers and laid-off employees.
[23] Finally, the respondents submit that the record reflects an employer who responded to a reduction in work volume, beyond its control, in an effective, efficient and compassionate manner. The respondents contend that the substance of the applicants' grievances relates to hours of work and pay which is covered in the applicants' collective agreements and as such, is not proper subject matter for judicial review. The respondents submit that this issue has already been the subject of adjudication which rejected the applicants' position. The respondents submit that the applicants are attempting to circumvent the grievance resolution process established by the PSSRA, and that there is no legitimate basis for this application.
ANALYSIS
[24] The applicants are employees of the Treasury Board because the CGC is listed in Part I of Schedule I of the PSSRA which defines employer as:
"employer" means Her Majesty in right of Canada as represented by,
(a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned;
Statutory Powers of the Treasury Board
[25] The powers of the Treasury Board to manage the public service are contained in the FAA, which provides inter alia:
(a) in subsection 7(1)(b) and (e):
· to manage public service personnel including the determination of terms and conditions of their employment;
(b) in subsections 11(2)(a), (d) and (i):
· to determine the requirements of the public service with respect to human resources;
· to provide for the allocation and effective utilization of human resources within the public service;
· to determine and regulate pay to which public service employees are entitled for services rendered, hours of work, and leave; and,
· to provide for other matters, including terms and conditions of employment not otherwise specifically provided for in subsection 11(2), as the Treasury Board considers necessary for effective personnel management.
[26] However, subsection 11(3) of the FAA states that the powers and functions of the Treasury Board do not extend to any matter expressly determined or provided for by any other Act. The PSSRA specifies a procedure for terminating or laying-off employees. The power of the respondent to lay-off the applicants is restricted by section 29 of the PSSRA. However, the applicants do not contend that they were laid-off because their employment relationship was not terminated, and they were given a fixed date to return to work.
[27] The applicants submit that it makes no sense that the employer can place seventy-five percent of its permanent employees on "off-duty status" with no pay for three months, when the same employer cannot legally lay-off or terminate these same employees without pay. Naturally a permanent employee is seriously prejudiced if told to go home without pay for three months.
[28] This Court has held in P.S.A.C. v. Canadian Grain Commission, supra. that placing employees on off-duty status without pay is not a de facto lay-off covered by section 29 of the Public Service Employment Act ("PSEA"). The applicants do not take issue on this point. They agree that a temporary lay-off is not a lay-off as defined in the PSEA for which they are entitled to benefits.
[29] The applicants contend in this case that the employer does not have the lawful authority under the FAA to place them on off-duty status without pay.
[30] This Court in P.S.A.C. v. Canadian Grain Commission, supra. has considered this issue, and held that:
(1) the general powers of the Treasury Board to manage personnel includes the authority to place employees in the situation of the applicants on "off-duty status" without pay. Justice Joyal held at paragraph 50:
[...] I would find no difficulty in concluding that the general authority of the Treasury Board to manage personnel as contained in sections 5 and 7 of the Financial Administration Act includes the authority to place certain employees in the circumstances described herein on off-pay status.
(2) the Treasury Board, as part of its management functions, may do that which is not specifically, or by inference, prohibited by statute or collective agreement and that this includes placing public servants on off-duty status. Justice Joyal held at paragraph 53:
I must therefore endorse the principle that the employer in its management functions may do that which is not specifically or by inference prohibited by Statute. Certain it is that the process of "off-pay status" does not do violence to either common sense or to the spirit and intent of the public Statutes affecting public servants. Particularly, would the scheme appear consonant with the exercise of the general power attributed to Treasury Board in paragraph 7(1)(i) of the Financial Administration Act "to provide for such other matters ... as the Treasury Board considers necessary for effective personnel management in the public service.
[31] Justice Joyal concluded at paragraph 71:
I must conclude that the scheme of "off-pay status" comes within the legislative field of authority conferred on the Treasury Board under the Financial Administration Act. I further conclude that the scheme is not in its essence a lay-off pursuant to section 29 of the Public Service Employment Act. I find also that in the absence of any prohibitory provision in the collective agreement, the scheme is not by necessary implications contrary to its terms and conditions or of a nature to do violence to the collective agreement's purposes and objects. I further find that the off-pay scheme strikes a proper balance between statutory provisions on the one hand and contractual provisions on the other, neither of them being offended by the scheme. I conclude that management's discretionary initiative to cope with short-term staff surplus or work shortage in the way intended has been exercized in a lawful manner. [emphasis added]
Amendments Subsequent to the Decision of Justice Joyal in 1986
[32] The applicants contend that legislative amendments to the FAA subsequent to 1986 warrant a different result. I cannot agree. I have reviewed the amendments and proposed amendments to the FAA. In my view, they do not restrict the employer from regulating the terms and conditions of employment, including the placement of permanent employees on temporary off-duty status without pay due to a lack of work.
[33] I was referred to Bill C-28, an Act to amend the PSSRA in 1978 which did not pass. This Bill stated that the employer has the right to suspend employees without pay during a strike. In my view, if passed, this law would not have affected the right of the employer, as found by Justice Joyal in 1986, to place regular employees on off-duty status for lack of work. In any event, Bill C-28 was not subsequent to Justice Joyal's decision in 1986. Moreover, this Bill was directly related to strike situations, not normal lack of work situations.
Labour Relations Jurisprudence
[34] The only other relevant Federal Court jurisprudence examining "off-duty status" is the decision of Canada (AG) v. Gray (1977), 18 N.R. 393 (F.C.A.) where Pratte J.A. held at paragraph 5:
The expression "lay-off" , in common parlance, does not necessarily imply a termination of employment. However, what is here in issue is not the usual or even the dictionary meaning of the expression but its meaning as used in the collective agreement. There is not doubt that, for one who is conversant with the legislation applicable to the Public Service, a public servant cannot be said to be laid off if his employment has not been terminated [See note 3 below]. I consider that the parties to the collective agreement here in question, which relates to the condition of work of public servants, must be deemed to have been familiar with the terminology of the Public Service Employment Act. Therefore, in my opinion, when they used the expression "lay-off" in the collective agreement, one is entitled to presume, in the absence of any indication of a contrary intention, that they intended to refer to a termination of employment. [emphasis added]
[35] The other relevant jurisprudence is labour arbitration and adjudication cases. These cases state that the employer has the authority to place employees on off-duty status as part of its general powers to determine the requirements of the public service with respect to human resources and the appropriate hours of work and pay for those employees.
[36] In G. Zadow et al. v. Treasury Board (Post Office Department), January 7, 1981 P.S.S.R.B. File No.: 166-2-9448 (1981) (unreported), at page 12, Adjudicator J.M. Cantin, Q.C. concludes:
The employer, I repeat, had every reason to conclude that on October 18, 1978, work was not available, the volume of mail being insignificant and clearly insufficient as compared with the usual volume. Nothing prevented the employer in the circumstances from advising the grievors not to report for duty. The employer simply acted as a good administrator and within it rights and it did not violate the agreement. [emphasis added]
[37] In Coopey v. Treasury Board (National Defence), PSSRB File No. 166-2-15355 (1986), [1986] C.P.S.S.R.B. No. 13 at page 4, Adjudicator J.M. Cantin, Q.C. states:
Article 30.08 which stipulates that "an officer's designated hours of work shall not be construed as guaranteeing the officer minimum or maximum hours of work" does exist with more or less the same wording in other collective agreements and the interpretation has always been as above-stated. Reference was made to Zadow et al (Board file 166-2-9448 and Huff et al (Board file 166-2-9456).
REASONS FOR DECISION
There is no doubt in my mind that the employer did not contravene the collective agreement. Nowhere in the agreement does it say that the grievor was guaranteed 40 hours of work per week. In fact, article 30.08 which I quoted above, is to the contrary. On the other hand, I find that the employer acted as a good administrator when it decided not to allow the grievor to work another eight hours after he had already worked 24 consecutive hours. The grievor, obviously, cannot ask to be paid if he did not work. The employer may have had another reason (relating to payment for a third period of overtime) when it decided to ask the grievor to "go home", but this does not change the situation.[emphasis added]
[38] And in Chevrette v. Treasury Board (Canadian Grain Commission), PSSRB File No. 166-2-25375 (1995), [1995] C.P.S.S.R.B. No. 49 at page 11, Adjudicator M.K. Wexler reviews the relevant jurisprudence in this area and states:
Prior to 1991, jurisprudence held that the employer had the right to declare employees temporarily off-duty. In my opinion, the Directive does not alter this right.
The Collective Agreements
[39] The appropriate compensation for employees of the CGC on off-duty status during no work periods is the proper subject matter of collective bargaining. Since this issue is not covered in the legislation and since the Treasury Board has the power, according to the jurisprudence, to place employees on "off-duty status", the union has negotiated "protocols" to be followed by the CGC in the event of a work slowdown. See Affidavit of Gerry Halabecki, Northern Ontario Regional Vice-President of the Agriculture Union, a component of the Public Service Alliance of Canada, paragraph 10.
[40] The applicants state that their placement on off-duty status without pay did not breach their respective collective agreements. For example, in reviewing the Technical Services collective agreement, it provides in the following two paragraphs that the employee has no guarantee of a minimum number of hours of work and that nothing in the collective agreement, except as expressly provided, restricts the authority of the Treasury Board to manage the public service:
6.01 Except to the extent provided herein, this agreement in no way restricts the authority of those charged with managerial responsibilities in the Public Service.
[...]
25.01 An employee's scheduled hours of work shall not be construed as guaranteeing the employee minimum or maximum hours of work.
Common Sense and Inequity
[41] The applicants submit that it does not make sense and it is inequitable, for the employer to be able to place permanent employees on off-duty status without pay. The PSEA governs the notice and compensation payable to employees who are either terminated without cause or laid-off. I agree with the applicant that this legislation does not govern permanent employees placed on off-duty status and I agree with the applicants that this gap in the legislation creates an inequity that needs to be addressed. However, this Court cannot fill this legislative gap. The Court has repeatedly expressed reluctance to provide an alternative form for the resolution of employment disputes in the face of the comprehensive scheme provided in legislation and the collective agreements for the determination of workplace disputes arising from the employment relationship in the federal public service. See Vaughan v. Canada (2003), 224 D.L.R. (4th) 640 per Evans J.A. at paragraphs 148 to 151.
[42] The problem of work shortages at the CGC have been ongoing for several years due to the inherent nature of the business. The closure of the Seaway in the winter naturally diminishes the work at the grain elevators. As a result, this same issue has been adjudicated by this Court in 1986 and by the Public Staff Relations Board in 1995. See Chevrette v. Treasury Board (Canadian Grain Commission), supra.
Evidence Regarding New Collective Agreements
[43] While it is not relevant to whether the Treasury Board had the lawful authority to place permanent employees on off-duty status without pay, the applicants' union has now negotiated, in some collective agreements involving the CGC employees, benefits payable to permanent employees who are placed on off-duty status as a result of a temporary shortage of work. This is the appropriate manner to address the continuing problem in view of the finding of this Court in 1986, with which I agree, that the Treasury Board does have the lawful authority to manage its personnel in this manner.
DISPOSITION
[44] For these reasons, this application for judicial review is dismissed with costs.
"Michael A. Kelen" _______________________________
JUDGE
OTTAWA, ONTARIO
February 25, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1135-02
STYLE OF CAUSE: Ronald Brescia and others
Applicants
- and -
Her Majesty the Queen and others
Respondents
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 5, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Kelen
DATED: February 25, 2004
APPEARANCES:
Mr. Andrew Raven For the Applicants
Mr. Richard Fader For the Respondents
SOLICITORS OF RECORD:
Mr. Andrew Raven For the Applicants
Ottawa, Ontario
Mr. Morris Rosenberg For the Respondents
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20040225
Docket: T-1135-02
BETWEEN:
RONALD BRESCIA ET AL.
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL.
Respondents
REASONS FOR ORDER