A-254-81
The Queen in right of Canada as represented by
the Treasury Board (Applicant)
v.
Canadian Air Traffic Control Association
(Respondent)
Court of Appeal, Heald, Urie and Le Dain JJ.—
Ottawa, September 21 and October 14, 1981.
Judicial review — Labour relations — Application to review
and set aside the decision of the Public Service Staff Relations
Board that Treasury Board, as employer of respondent's mem
bers, contravened s. 51 of the Public Service Staff Relations
Act — Section 51 provides that any term or condition of
employment which may be embodied in a collective agreement
and that was in force on the day the notice to bargain was
given, shall remain in force — Voluntary overtime policy
altered by the employer who imposed compulsory overtime
after notice to bargain collectively was given by the respondent
to the employer — Whether policy a term or condition of
employment in force when notice to bargain was given —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 2,
18, 51, 57(3) — Canada Labour Code, R.S.C. 1970, c. L-1, s.
148(6) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
This is an application to review and set aside a decision of the
Public Service Staff Relations Board holding that Treasury
Board, as the employer of the respondent's members, contra
vened section 51 of the Public Service Staff Relations Act by
altering a term or condition of employment after notice to
bargain collectively was given by the respondent to the employ
er. At the date of the notice to bargain and prior thereto, there
existed a voluntary overtime policy arrived at through consulta
tion between the employer and the respondent Association for
the benefit of air traffic controllers at the Montreal Control
Centre. After notice to bargain was given, however, the
employer altered the policy and imposed compulsory overtime.
Applicant argues that under the provisions of the collective
agreement dealing with overtime, the right of the employer to
determine the overtime work requirements continues after
notice to bargain has been given as the voluntary overtime
policy was not a term or condition of employment in force at
the time the notice to bargain was given although it was
capable of being so, which capability could only become
enforceable if the parties agreed in writing to amend the
collective agreement.
Held, (Heald J. dissenting) the application is dismissed. The
narrow view that the words "in force" in the context of the
wording of section 51 mean "enforceable in law" cannot be
adopted. They mean "in place", "existing", "operating" or
some word or words of similar import. One of the incidents in
the employer-employee relationship existing immediately prior
to the notice, though not embodied in the collective agreement,
was the mutual understanding that the right of the employer to
require overtime work within the limits specified in the collec
tive agreement, had been modified to permit the employees to
refuse to do so. While that might not have been a right or
privilege which could have been enforced as part of the collec
tive agreement, it certainly was one which existed or was "in
force" when the freeze imposed by section 51 came into play.
Per Heald J. dissenting: "Force" when speaking of a law
means "binding power, validity". Thus, it cannot be concluded
that the provisions dealing with overtime as embodied in the
collective agreement were capable of amendment by the simple
expedient of an oral arrangement whereby the employer had
allowed the employees to refuse overtime. It seems that the
parties, in entering into the collective agreement contemplated
that any amendment thereto should be by way of a formal
amendment to that agreement. Since that was not done in this
case, the conditions of employment in force on the critical date,
in so far as overtime is concerned, are those contained in the
articles of the agreement dealing with overtime. Furthermore,
pursuant to section 2 of the Public Service Staff Relations Act,
a collective agreement must be in writing. It thus follows that
section 57(3) of the Act necessarily implies that any amend
ment to a written collective agreement must also be in writing.
Le Syndicat catholique des employés de magasins de
Québec Inc. v. La Compagnie Paquet Ltée [1959] S.C.R.
206, referred to.
APPLICATION for judicial review.
COUNSEL:
Robert Cousineau for applicant.
J. Nelligan, Q.C. for respondent.
J. E. McCormick for the Public Service Staff
Relations Board.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Nelligan/Power, Ottawa, for respondent.
Public Service Staff Relations Board Legal
Services, Ottawa, for the Public Service Staff
Relations Board.
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): I have perused the rea
sons for judgment herein of my brother Urie J.
but, with deference, do not share his view that, on
the facts here present, the Public Service Staff
Relations Board correctly applied section 51 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35. Section 51 reads as follows:
51. Where notice to bargain collectively has been given, any
term or condition of employment applicable to the employees in
the bargaining unit in respect of which the notice was given
that may be embodied in a collective agreement and that was in
force on the day the notice was given, shall remain in force and
shall be observed by the employer, the bargaining agent for the
bargaining unit and the employees in the bargaining unit,
except as otherwise provided by any agreement in that behalf
that may be entered into by the employer and the bargaining
agent, until such time as
(a) in the case of a bargaining unit for which the process for
resolution of a dispute is by the referral thereof to
arbitration,
(i) a collective agreement has been entered into by the
parties and no request for arbitration in respect of that
term or condition of employment, or in respect of any term
or condition of employment proposed to be substituted
therefor, has been made in the manner and within the time
prescribed therefor by this Act, or
(ii) a request for arbitration in respect of that term or
condition of employment, or in respect of any term or
condition of employment proposed to be substituted there-
for, has been made in accordance with this Act and a
collective agreement has been entered into or an arbitral
award has been rendered in respect thereof; and
(b) in the case of a bargaining unit for which the process for
resolution of a dispute is by the referral thereof to a concilia
tion board,
(i) a collective agreement has been entered into by the
parties,
(ii) a conciliation board has been established in accordance
with this Act and seven days have elapsed from the receipt
by the Chairman of the report of the conciliation board, or
(iii) a request for the establishment of a conciliation board
has been made in accordance with this Act and the
Chairman has notified the parties pursuant to section 78 of
his intention not to establish such a board.
The relevant and determining facts of this case are
accurately summarized in the reasons of my broth
er Urie J. and need not be repeated. The central
issue is, in my view, the meaning of the words ".. .
any term or condition of employment ... that may
be embodied in a collective agreement and that
was in force on the day the notice was given, ..."
[the added emphasis is mine] as those words are
used in section 51 supra. In construing the words
"in force" Urie J. rejected the applicant's submis
sion that the proper meaning in the context of
section 51 was "enforceable in law." In his view,
those words in section 51 should be construed so as
to mean "in place", "existing", "operating" or
"some word or words of similar import." On this
basis, it was his opinion that the mutual under
standing between the employer and its employees
permitting the employees to refuse to work over
time, while not being a right or privilege which
was enforceable as part of the collective agree
ment, was, nevertheless, a right or privilege which
"existed" and was thus "in force" when the freeze
imposed by section 51 came into play.
I do not concur in that approach to the matter.
The Shorter Oxford English Dictionary states
that "force" when speaking of a law means "Bind-
ing power, validity". Applying that definition to
the facts of this case, I cannot conclude that the
provisions dealing with overtime as embodied in
the collective agreement (articles 15.01, 15.03 and
15.04) were capable of amendment by the simple
expedient of an oral arrangement whereby the
employer had allowed the employees to refuse
overtime. It seems to me that the parties, in enter
ing into the collective agreement, contemplated
that any amendment thereto should be by way of a
formal amendment to that agreement. Since that
was not done in this case, it is my opinion that the
conditions of employment in force on the critical
date, in so far as overtime is concerned, are those
contained in articles 15.01, 15.03 and 15.04. In the
case of Le Syndicat catholique des employés de
magasins de Québec Inc. v. La Compagnie Paquet
Ltée', Judson J. writing the judgment of the
majority of the Court, expressed the view that
when a collective agreement becomes operative,
"There is no room left for private negotiation
between employer and employee" so as to retain
particular benefits relating to conditions of
employment for a particular employee. It is my
opinion that when section 51 refers to conditions of
employment, the necessary implication from the
language used is that it is intended to refer to the
conditions of employment as set out in the collec
tive agreement. This becomes even clearer, in my
view, when the terminology of section 51 supra is
compared with a similar provision in the Canada
Labour Code, R.S.C. 1970, c. L-1. That section is
paragraph 148(b) in Part V, Division IV, of the
Code and provides:
148. Where notice to bargain collectively has been given
under this Part,
I [1959] S.C.R. 206 at page 212.
(b) the employer shall not alter the rates of pay or any other
term or condition of employment or any right or privilege of
the employees in the bargaining unit, or any right or privilege
of the bargaining agent, until the requirements of paragraphs
180(1)(a) to (d) have been met, unless the bargaining agent
consents to the alteration of such a term or condition, or such
a right or privilege.
Thus, in the Canada Labour Code, the words "in
force" do not appear in relation to terms or condi
tions of employment. The Canada Labour Code
appears to freeze all terms or conditions of
employment, not just those "in force", i.e. those
detailed in the collective agreement. If Parliament
had intended to freeze all terms or conditions of
employment in section 51, it could easily have
adopted language identical or similar to that used
in the Canada Labour Code.
My brother Urie J. also characterized the policy
of voluntary overtime as being an unwritten
amendment to article 15 of the collective agree
ment. With respect, I am unable to agree, having
regard to the provisions of the Public Service Staff
Relations Act. In section 2 of the Act, "collective
agreement" means ".. . an agreement in writing
entered into under this Act between the employer,
on the one hand, and a bargaining agent, on the
other hand, containing provisions respecting terms
and conditions of employment and related mat
ters;" [emphasis mine]. Thus, under the Act, a
collective agreement must be in writing. Likewise,
in my view, subsection (3) of section 57 of the Act
which permits "amendment or revision of any
provision of a collective agreement ..." necessarily
implies that any amendment to a written collective
agreement must also be in writing.
I have thus concluded, for the foregoing reasons,
that the Board erred in law in deciding that by
changing its policy regarding overtime, the
employer contravened section 51 of the Public
Service Staff Relations Act. I would therefore
allow the section 28 application and set aside the
decision dated May 4, 1981 of David H. Kates, the
Deputy Chairman of the Public Service Staff
Relations Board.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the Public
Service Staff Relations Board made pursuant to
section 18 of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35 (the Act) after a hearing
arising from a complaint alleging that the Trea
sury Board as the employer of the members of the
respondent, contrary to section 51 of the Act,
altered a term or condition of employment. While
counsel said that an agreed statement of facts had
been filed at the hearing before the Board it does
not appear in the record in this Court so that the
factual background leading to the allegation is
derived from the reasons of the Board and the
memoranda of fact and law filed by the parties.
That background may be briefly summarized in
the following way.
Notice to bargain with respect to the existing
collective agreement between the respondent and
the Treasury Board which was due to expire on
December 31, 1980, was given by the respondent
on October 6, 1980. Since that date no new collec
tive agreement has been entered into and no report
of a conciliation board has been issued. Thus, the
parties to the agreement were and are still at the
bargaining stage. It was agreed that until March
6, 1981 the policy relating to overtime work at the
Montreal Control Centre had been that it was not
compulsory to accept overtime duty. That policy
had, apparently, been arrived at through consulta
tion between the parties.
On March 6, 1981 the employer issued the
following directive in respect of the policy permit
ting controllers scheduled to work overtime to
cancel or refuse such duty.
Effective immediately upon issuance on March 6, 1981, in
order to meet our operational needs, it has become imperative
to impose compulsory overtime. Refusal to work any scheduled
overtime will be considered to be in contravention to interlocu
tory injunction T-4640-80 issued by the Federal Court of
Canada dated October 9, 1980.
Unit policy P7905-AI is amended herewith in so far as over
time is concerned.
Unit Policy P7905-AI reads as follows:
MONTREAL AREA CONTROL CENTRE
UNIT POLICY P7905-AI
Subject—Cancellation of shifts
A shift cancellation (for both regular and overtime shifts), for
any reason, must be made one (1) hour at the latest prior to the
commencement of a 7 or 8 hour shift, and four (4) hours at the
latest prior to the commencement of any other shift.
It is to be noted that in all cases a written explanation, by way
of a letter or on the appropriate government form, may be
required by the Supervisor.
Telephone calls on this subject shall be directed to the
Supervisor.
Clearly that document does not itself implement
the policy of voluntary overtime arrived at through
the consultative process but merely sets forth the
procedure to be followed in the event that a con
troller scheduled or requested to work overtime
wishes to opt out of the assignment. The record
before us discloses no other document setting forth
the voluntary overtime policy. It does, however,
lend confirmation to the statement of the
Adjudicator that the parties agreed that "as a
matter of policy arrived at through consultation
between the parties there was no compulsory over
time with respect to air traffic controllers operat
ing out of the Montreal Control Centre ...".
The memorandum of March 6, 1981 was pre
cipitated, apparently, by the receipt by the
employer of notifications from forty air traffic
controllers employed at the Montreal Control
Centre indicating their refusal to work overtime.
Those notifications had in turn resulted from the
employer's advice to the bargaining agent on
March 2, 1981 that certain changes in the work
schedules proposed by the agent during consulta
tions had been rejected. The reaction by the
employer to the refusals to work overtime was the
posting of the March 6, 1981 memorandum.
After efforts to resolve the dispute as to the
scheduling of overtime had failed, proceedings
were instituted by the employer in the Trial Divi
sion resulting in two orders requiring some 54 air
traffic controllers to appear on April 21, 1981 to
show cause why they should not be found in
contempt of an injunction order issued by Walsh J.
in the Trial Division on October 9, 1980 [[1981] 2
F.C. 12]. On April 28, 1981 on the return of the
show cause orders, Addy J., apparently as a result
of a preliminary objection, concluded that the
change of policy with respect to overtime was not
in contravention of section 51 of the Act.
On April 14, 1981 an application was made to
the Board by the respondent herein, pursuant to
section 18 of the Act for an order finding that the
employer's change of policy contravened section 51
of the Act and that the compulsory overtime policy
be rescinded. That application was heard by the
Vice-Chairman of the Board sitting alone. His
decision was rendered on May 4, 1981 wherein he
held that the section 18 application was well
founded and thus that the employer had indeed
contravened the provisions of section 51. It will be
noted that the Board interpreted section 51 in a
manner completely opposite to Addy J., on a date
subsequent to that upon which he rendered his
decision. The Vice-Chairman's decision was
reviewed by a different panel of the Board on two
occasions arising, first, as a result of an application
pursuant to section 18 of the Act for compliance
with the order and, secondly, as a result of an
application pursuant to section 25 of the Act for a
review of the order for compliance. The Vice-
Chairman's decision was, in effect, upheld and a
compliance order was granted and the subsequent
application for a review of that order was rejected.
For the moment I will not comment on the
failure of the Board to follow the construction
given section 51 of the Act by Addy J. This section
28 application is to review the Board's decision
and the result of this Court's judgment will, of
course, bind not only the Board but also the Trial
Division, as Mr. Justice Addy correctly observed
when the Board's decisions were called to his
attention, subject always to a successful appeal
therefrom.
Section 18 and the relevant portion of section 51
read as follows:
18. The Board shall administer this Act and shall exercise
such powers and perform such duties as are conferred or
imposed upon it by, or as may be incidental to the attainment
of the objects of, this Act including, without restricting the
generality of the foregoing, the making of orders requiring
compliance with this Act, with any regulation made hereunder
or with any decision made in respect of a matter coming before
it.
51. Where notice to bargain collectively has been given, any
term or condition of employment applicable to the employees in
the bargaining unit in respect of which the notice was given
that may be embodied in a collective agreement and that was in
force on the day the notice was given, shall remain in force and
shall be observed by the employer, the bargaining agent for the
bargaining unit and the employees in the bargaining unit,
except as otherwise provided by any agreement in that behalf
that may be entered into by the employer and the bargaining
agent, until such time as
(b) in the case of a bargaining unit for which the process for
resolution of a dispute is by the referral thereof to a concilia
tion board,
(i) a collective agreement has been entered into by the
parties,
(ii) a conciliation board has been established in accordance
with this Act and seven days have elapsed from the receipt
by the Chairman of the report of the conciliation board, or
(iii) a request for the establishment of a conciliation board
has been made in accordance with this Act and the
Chairman has notified the parties pursuant to section 78 of
his intention not to establish such a board.
The collective agreement between the parties
deals with overtime. Articles 15.01, 15.03 and
15.04 are the relevant clauses for purposes of these
reasons for judgment and they read as follows:
15.01 Time worked by an employee in excess or outside of his
scheduled hours of work shall be considered as overtime.
15.03 The Employer will endeavour to keep overtime work to a
minimum and shall assign overtime equitably among employees
who are qualified to perform the work that is required at the
location concerned.
15.04 Except in an emergency, no operating employee shall
work more than twelve (12) consecutive hours or more than
nine (9) consecutive days.
Counsel for the applicant argued that article 15
contains the terms and conditions of employment
relating to overtime that were in force when the
notice to bargain was given. That being so, he said,
the article discloses that overtime work require
ments are for the employer to determine and the
right to make that determination continues after
the notice to bargain has been given irrespective of
the fact that a policy existed at that date by which
the employer had, prior thereto, permitted the
employees to refuse an assignment or request to
work overtime. According to him such a policy was
not a term or condition of employment in force at
the time notice to bargain was given, although, he
conceded, it was capable of being so. That capabil
ity, in his submission, could only become enforce
able if the parties formally, in writing, agreed to
amend the collective agreement to reflect the
retraction from the employer's untrammelled right
to determine overtime work requirements. Since
such an amendment had not been agreed to the
voluntary overtime policy was not a term or condi
tion of employment and thus was not subject to the
so-called "freeze" imposed by section 51.
With respect, I am unable to agree with these
submissions. There is no doubt that the policy of
permitting air traffic controllers to refuse to work
overtime is one which might have been or "may
be" in the future, embodied in a collective agree
ment. I take it that the words "may be embodied"
as they appear in section 51 mean that the term or
condition of employment is "capable of being
embodied" in the agreement. There is equally no
question, as I see it, that the policy, so long as it
subsisted, constituted, or resulted in, a term or
condition of employment. Undoubtedly during the
term of the agreement that policy which was, in
effect, an unwritten amendment to article 15 could
have been rescinded by the employer. (I leave
aside the question of whether the bargaining agent
or the employees must be consulted before such a
rescission.) However, at the time that notice to
bargain was given no such rescission had been
made and the policy, which, as I have said, effec
tively provided one of the terms or conditions of
employment, was "in force" at that time.
I am, moreover, unable to adopt the narrow view
that the words "in force" in the context of the
wording of section 51 mean "enforceable in law".
They mean, in my opinion, "in place", "existing",
"operating" or some word or words of similar
import. Adoption of the view espoused by the
applicant would, it seems to me, run counter to the
apparent purpose of section 51 which is that, after
the notice to bargain, the employer-employee rela
tionship existing immediately prior to the notice,
in so far as terms or conditions of employment are
concerned, should be preserved. One of the inci-
dents in that relationship, though not embodied in
the collective agreement, was the mutual under
standing that the right of the employer to require
overtime work within the limits specified in the
collective agreement, had been modified to permit
the employees to refuse to do so. While that might
not have been a right or privilege which could have
been enforced as part of the collective agreement it
certainly was one which existed or, in the words of
the section, was "in force" when the freeze
imposed by section 51 came into play.
Since I have concluded that the Board on the
facts of this case correctly applied section 51 and
thus was entitled to direct the removal of the
posted memorandum imposing compulsory over
time, it is unnecessary for me to consider the
respondent's alternative submission that the failure
of the employer to consult the bargaining agent
about contemplated changes in conditions of
employment or working conditions not governed
by the collective agreement, constituted a breach
of article 24.01 of that agreement.
For all of the foregoing reasons I would dismiss
the section 28 application.
Before leaving the matter, however, I feel it
incumbent upon me to comment on the Board's
refusal to follow Mr. Justice Addy's interpretation
of the effect of section 51, of which interpretation
and his ruling arising therefrom, the Board was
aware or should have been aware on May 4, 1981
when the Vice-Chairman rendered his original
decision. The second panel of the Board certainly
was fully cognizant of it when it heard the applica
tion for an order of compliance, the defence to
which was based on Addy J.'s judgment. The same
is true of the application for reconsideration of its
decision on the application for compliance. Mr.
Justice Addy, quite properly in my view, comment
ed on the necessity, for the orderly functioning of
the administration of justice, to avoid the "misun-
derstanding and confusion which might arise from
conflicting rulings or contradictory executory
orders."
It is unnecessary for me to amplify these com
ments. I content myself by saying simply that I
agree with them and observe that, at least on the
facts of this case, the Board was not entitled to
ignore Mr. Justice Addy's decision on the basis of
the Board's conception of the circumstances under
which the ruling was purportedly made. The fact
that the Board's interpretation of the statute has
been upheld by this Court does not detract from
the importance of observing and following the
decisions of supervising courts. In fact it demon
strates the proper way to rectify perceived errors in
rulings of those bodies.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I have had the advantage of read
ing the reasons of Mr. Justice Heald and Mr.
Justice Urie. I agree with the conclusion reached
by Mr. Justice Urie.
The purpose of section 51 of the Public Service
Staff Relations Act is to maintain the status quo
in respect of terms and conditions of employment
while the parties are attempting to negotiate an
agreement. It is a particular version of a provision
generally found in labour relations legislation that
is designed to promote orderly and fair collective
bargaining. There must be some firm and stable
frame of reference from which bargaining can
proceed. The provision should not be given a nar
rowly technical construction that would defeat its
purpose.
Section 51 is directed to "any term or condition
of employment applicable to the employees in the
bargaining unit" at a given point of time. The term
or condition must be one that may be embodied in
a collective agreement, not necessarily one that is
embodied in a collective agreement. And it must
be "in force" at the time notice to bargain collec
tively was given.
On the basis of the agreed statement of facts
submitted to it by the parties and the testimony
which it heard, the Board found as a fact in the
present case that at the time the notice to bargain
collectively was given there was a "policy" or
"accommodation" arrived at through consultation
between the parties under which "scheduled" over
time and "call-in" overtime, as distinct from the
request for overtime beyond an employee's shift
contemplated by article 15.04 of the collective
agreement, were voluntary. There can be no doubt
that the rule concerning overtime in these two
cases, whether it be regarded as the product of
agreement between the parties or of the exercise of
the employer's management authority after con
sultation, was a term or condition of employment
applicable to the employees in the Montreal unit
and it could have been embodied in a collective
agreement. As long as it was the applicable rule it
governed the relationship of the parties on this
matter. While that policy applied an employee
who refused a request for overtime could not be
disciplined by the employer for such refusal. To
that extent the policy was a measure of rights and
obligations. It could have legal consequence. As
such it must be considered, in my opinion, to have
been "in force" within the meaning of section 51.
The issue is not whether the policy could have been
changed by the employer at any time, but for
section 51. A purpose of section 51 is to prevent a
unilateral change of terms and conditions of
employment after notice to bargain collectively has
been given. Indeed, there is no need for the provi
sion with respect to terms and conditions of
employment that are fixed by agreement during a
certain period. The terms and conditions of
employment applicable to employees in a unit
include not only those fixed by express agreement
of the parties but also those which may be imposed
by the employer in the exercise of his management
authority. Article 24.01 of the collective agree
ment in this case recognizes the existence of the
latter when it provides: "Wherever possible, the
Employer shall consult with representatives of the
Association, at the appropriate level, about con
templated changes in conditions of employment or
working conditions not governed by this Agree
ment."
For these reasons I am of the opinion that the
Board did not err in law in deciding as it did, and I
would accordingly dismiss the section 28 applica
tion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.