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SCC paves way for ‘standby’ pay for federal Crowns

03-11-2017

AJC president Ursula Hendel

 

 

The union for 2,600 federal lawyers now awaiting the results of their “binding conciliation” with Treasury Board has had a big boost from the Supreme Court for the union’s ongoing fight against Crowns being required to “stand by” for free to do emergency legal work.

 

On Nov. 3, the top court allowed the appeal of the Association of Justice Counsel (AJC) against a Federal Court of Appeal decision last year: Association of Justice Counsel v. Canada (A.G.) 2017 SCC 55.



The Federal Court of Appeal had overturned a labour adjudicator’s decision that ordered the Department of Justice (DOJ) to stop enforcing a 2010 management directive that was “not a reasonable or fair exercise of management rights” under the collective agreement.



The directive has required Crown counsel, at infrequent intervals over more than seven years, to be on call for free for emergency after-hours work in immigration and other matters (Lawyers were previously compensated with time off for standby duty, but now are only compensated if they are actually required to work).



Seven of nine Supreme Court judges agreed with the AJC that the labour adjudicator’s decision that the directive contravenes the collective agreement was reasonable, and that his order to stop applying the directive should be reinstated (Justices Michael Moldaver and Suzanne Côté dissented, and would have sent the grievance back to a new adjudicator for decision).



“The adjudicator applied the appropriate analytical framework to assess the exercise of management rights, and the surrounding circumstances of the directive supported his conclusion that the employer’s directive was neither reasonable nor fair,” Justice Andromache Karakatsanis wrote for the majority.


However, the entire court went on to reject the adjudicator’s conclusion that the directive also violated the s. 7 Charter rights of the lawyers to liberty and privacy (the collective agreement incorporates employees’ Charter rights).



“The directive requires them, as a condition of their employment, to be potentially less available to their families, or to forgo certain personal activities for, at most, two to three weeks a year,” Justice Karakatsanis remarked. “This incursion into the private, after‑work lives of the lawyers does not implicate the type of fundamental personal choices that are protected within the scope of s. 7,” she held.  


 

In light of the Supreme Court’s decision, Ursula Hendel, the AJC’s president, said her group “will be having a conversation with Treasury Board” about the issue of back pay for ex-employees, and “time in lieu” for current employees, for the after-hours standby duty they performed over the past seven years. (In collective bargaining with the Treasury Board, the AJC has been seeking half an hour of time in lieu for every four hours counsel are on standby shift.



“That’s perfectly consistent with what is in every other [federal] collective agreement, so we weren’t asking for anything special,” said Hendel, a prosecutor with the Public Prosecution Service of Canada.


“It’s a great day,” Hendel said of the decision. “I’m a little disappointed that we didn’t win the Charter argument, but I’m super-happy that the Supreme Court confirmed that [the management directive] is unfair and unreasonable,” she told The Lawyer’s Daily. “And the fact that they awarded us costs was the cherry on top.”



Hendel anticipates the Supreme Court’s ruling will have a positive impact on the panel of three conciliators which heard argument from the AJC and Treasury Board Oct. 25. The issues to be determined include standby duty compensation (the government was opposed), as well as pay, management leave, travel time, and leave while on travel status.



“We were extremely modest in our request” on standby duty, Hendel said. “We are one of the only groups not to have standby duty in our collective agreement so we just asked [the Treasury Board] for what they were giving everybody else, and they still refused. … I’m very hopeful that the conciliator will take the Supreme Court of Canada decision into account and reject the government’s position and find in our favour.”



The AJC hopes the binding arbitral award will be made before the end of the year. The union declared an impasse last December, and walked away from the bargaining table, after almost three years of fruitless talks with Ottawa.



Alain Belle-Isle, a spokesperson for the Treasury Board, said the government respects the Supreme Court’s ruling. “We are carefully reviewing the decision to determine its impact,” he noted. “We cannot comment further at this time.”



The grievance arose in 2010 when Montreal Crowns who deal with immigration cases were required by their employer, a few times a year, to be on-call, without pay, to deal with infrequent after-hours emergency stay applications in Federal Court (thus constraining their personal activities and whereabouts during their off hours.)

 

Since the standby system’s inception in the early 1990s and up until 2010, the system had worked on a volunteer basis. Lawyers who volunteered to cover standby shifts were compensated with paid leave at the rate of 2.5 days of paid time off for a week’s shift of evenings and weekend days, with additional compensation for holidays. They received the same amount of compensation whether or not they were called into work.


Justice Karakatsanis noted there was no standby clause in the collective agreement that was finalized in 2009, no mention of the requirement in the lawyers’ employment contracts or job descriptions, nor were similar policies the norm in the sector. “The fact that the directive affects the lawyers’ lives outside of working hours is a significant factor in the assessment of the directive’s impact on employees,” she remarked.


“Further, there is some apparent unfairness in a policy or directive that unilaterally withdraws compensation for standby duty, when the provision of such compensation had been a long‑standing practice. While an employer does not need to provide evidence that there were no other alternatives, the availability of realistic, but less intrusive, means to meet organizational needs may be a relevant consideration in the balancing of interests assessment. The adjudicator was entitled to note the lack of such evidence.”


Justice Karakatsanis said there was no indication that the adjudicator misunderstood the factual impact of the directive on the lawyers, as was set out in the agreed statement of facts. “The Federal Court of Appeal therefore erred by substituting its own balancing of the interests involved for that of the adjudicator,” she held. “The adjudicator’s decision that the directive contravened the collective agreement is reasonable and his order that the employer stop applying the directive should be reinstated.”


In partial dissent, Justice Côté (backed by Justice Moldaver) held that the conclusions of the adjudicator do not seem defensible in respect of either the facts or the law. “Regarding the facts, his conclusion that the employer had a certain control over the organizational need underlying the unilateral imposition of standby duty goes against the common evidence submitted by the parties to the effect that a stay application can arise unexpectedly and should be processed on an emergency basis,” Justice Côté said.


Moreover, “requiring the employer to prove that there were no other alternatives to solve its problem imposes on it the far too onerous burden of proving a negative,” she wrote. “As a result, to the extent that the adjudicator’s decision is based on a test that differs from the one applicable in law and that has the effect of imposing an excessive burden on the employer, it does not fall within a range of possible, acceptable outcomes which are defensible in respect of the law.”

 

https://www.thelawyersdaily.ca/articles/5090/scc-paves-way-for-standby-pay-for-federal-crowns