A-554-78
The Queen (Applicant)
v.
J. Beaulieu et al. (Respondents)
and
Canadian Union of Postal Workers and Public
Service Staff Relations Board (Mis -en-cause)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, February 22; Ottawa,
March 14, 1979.
Judicial review — Public Service — Vacancy in post office
necessitating the working of extra hours — Employer hiring
casuals rather than giving overtime employment to regular
employees — Grievances by regular employees — Adjudicator
finding "high mail volume" situation requiring overtime for
regular employees — Provisions of collective agreement
violated — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
This is a section 28 application to set aside a decision by an
Adjudicator under the Public Service Staff Relations Act. A
vacancy occurred at a post office and because no arrangements
were made to fill the vacancy owing to its contingent nature,
persons from outside the service were employed for short
periods. Respondents' grievances were that on certain days
during those periods they were entitled, according to the collec
tive agreement, to have been offered the work and had not been
offered it. The Adjudicator found that the vacancy created a
situation of "high mail volumes" that necessitated the working
of extra hours within the meaning of the collective agreement,
and ruled that the respondents were entitled to relief because of
the employer's breach of the collective agreement in not offer
ing them the opportunity to work overtime. Applicant attacks
that finding.
Held, the application is denied. The decision not to fill the
vacancy was a management decision that apparently resulted in
there being less staff during the vacancy than was sufficient for
predictable work loads. There is, therefore, no answer to the
Adjudicator's reasoning that, reading article 39.07 with the
provisions that preceded it, a reduction of "regular ... staff" or
number of "employés" (without any reduction in predictable
volumes of mail) can result in a "high mail volume(s)" within
the sense of that provision, just as an increase in volume of mail
over the predicted volume may create a situation when the
"regular ... staff" or number of "employés" remains
unchanged.
APPLICATION for judicial review.
COUNSEL:
J. C. Demers for applicant.
P. Lesage for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for respondents.
J. E. McCormick, Public Service Staff Rela
tions Board, Ottawa, for mis -en-cause.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision by an Adjudicator under the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, holding that the respondents were entitled
to relief by reason of a breach by the employer of
their collective agreement in not offering them an
opportunity to work overtime on certain days when
they would have been available to do so.
The problem involved arises out of a situation
that arose in 1976 in the postal service at St.
Jérôme, P.Q.
As a background to the problem it is to be noted
that a postal clerk by the name of Grondin, who
had been working a day-time shift at St. Jérôme
was transferred against his will to Montreal and,
as he instituted a grievance procedure against the
transfer, there was a possibility that he might be
reinstated in his St. Jérôme position. In these
circumstances, his position was given to one
Gauthier, who had been working on a night shift
at St. Jérôme, apparently on the understanding
that, if Grondin was reinstated, he would be rein
stated in his night shift position.'
In the circumstances, no similar arrangement
was made to fill Gauthier's position on a similar
basis but, for at least a part of the period, persons
II am using the word "position" here in the sense of "assign-
ment" of responsibilities and not in the purely legal sense of
authority to employ or in the personnel administration sense of
a "position" with a position number on an establishment chart.
from outside the service, whose names were
Dicaire and Jetté, were employed for short periods
for at least a part of the time necessary to settle
the Grondin matter. The periods for which they
were employed were from August 5 to August 19,
1976, and from September 3 to December 24,
1976, respectively.
The respondents' grievances were that on certain
days during those periods they were entitled,
according to the collective agreement, to have been
offered the work because they were "regular
employees available to perform additional hours
and/or overtime" and had not been offered such
work. The periods in respect of which they so
grieved (according to the Adjudicator) were the
night shifts of the following days:
August 11 (Côté)
August 16 (Raymond)
August 18 (Desnoyers)
September 13 (Raymond)
September 25 (Beaubien)
October 4 (Raymond)
October 6 (Desnoyers)
October 16 (Desnoyers)
October 20 (Raymond)
October 23 (Castonguay)
October 30 (Raymond)
November 2 (Castonguay)
Before examining the relevant provisions of the
collective agreement, it is to be noted that the
Public Service Staff Relations Act makes provi
sion for collective bargaining in the Public Service
on behalf of "employees" (section 26) and an
"employee" is defined (section 2) to mean a person
employed in the Public Service other than inter
alia
2....
(f) a person employed on a casual or temporary basis, unless
he has been so employed for a period of six months or more,
It would seem clear that Dicaire and Jetté were
not employees within this definition and were not
covered by the collective agreement.
Before referring to the particular provision on
which the Adjudicator based his decision in favour
of the respondents, it is advisable to review the
context in which it is found. The employer agreed
that it would follow a policy of employing suffi
cient regular staff to maintain service standards
for predictable "workloads and absences" and
would maintain eligible lists to fill vacant positions
as they occur (articles 39.02, 39.03 and 39.06).
The employer also accepted limitations in favour
of regular employees on the use of "casuals" made
necessary by vacation leave (article 39.04) and of
Christmas helpers (article 39.05). Against that
background must be read the agreement concern
ing "High Mail Volume Situation" (article 39.07)
on which the Adjudicator based his decision. That
provision reads:
[French Version]
39.07 Surplus de courrier
Lorsqu'un surplus de courrier nécessite le travail d'heures
additionnelles, l'employeur convient que ce travail sera offert
premièrement aux employés réguliers disponibles pour accom-
plir des heures additionnelles et/ou supplémentaires. Dans les
cas ou la mesure ci-haut mentionnée n'est pas suffisante pour
rencontrer les besoins du service, des aides occasionnels seront
utilisés pour augmenter le personnel régulier.
[English Version]
39.07 High Mail Volume Situation
When high mail volumes necessitate the working of extra
hours, the Employer agrees that such work will be offered first
to regular employees available to perform additional hours
and/or overtime. In instances where the action mentioned
above is not sufficient to meet service requirements, casual
employees will be used to complement the regular staff.
The Adjudicator held
(a) that Dicaire and Jetté were not regular
employees, but were casual employees, within
the meaning of this provision, and
(b) that the vacancy in Gauthier's regular posi
tion created a situation of "high mail volumes"
that necessitated the working of extra hours
within the meaning of article 39.07.
Counsel for the applicant does not appear to
attack the finding that Dicaire and Jetté were
casual employees. He defends the fact that Gau-
thier's position was not filled as being necessary to
protect Gauthier in the event of Grondin being
reinstated and he attacks the finding that there
was a high mail volume within the meaning of
article 39.07.
With reference to the failure to fill Gauthier's
position, it is not obvious why it could not have
been filled on the same basis as Grondin's position
was filled. 2 However that may be, the decision not
to do so was a management decision that appar
ently resulted in there being less staff (during the
vacancy) than was sufficient for predictable work
loads (article 39.02). That being so, I can see no
answer to the reasoning of the Adjudicator as I
understand it that, reading article 39.07 with the
provisions that preceded it, a reduction of "regular
... staff" or number of "employés" 3 (without any
reduction in predictable volumes of mail) can
result in a "high mail volume(s)" within the sense
of that provision, just as an increase in volume of
mail over the predicted volume may create such a
situation when the "regular ... staff' or number
of "employés" remains unchanged.
I do not overlook the administrative difficulty
involved in having a long time vacancy subject to
the sort of rights created in favour of regular
employees by a provision such as article 39.07.
However, such a provision cannot be ignored on
that account. The answer lies in taking administra
tive action that is available, if there is any, to avoid
"high mail volumes" or in renegotiating the collec
tive agreement to make more suitable provision for
such situations.
In my view, the section 28 application should be
dismissed.
* * *
LE DAIN J.: I agree.
* * *
HYDE D.J.: I agree.
2 Again, I am using "position" in the sense of "assignment".
Authority to employ a substitute must have been obtained and
the sole question is why a substitute could not have been
employed "for a period of six months or more" (subject to
having his employment terminated in the event of Gauthier's
return) so that the substitute would have been an "employee"
subject to the collective agreement.
3 Cf. article 39.02(a).
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.