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A-448-79
Catherine Le Borgne and Claudine Bujold (Applicants)
v.
National Film Board and M. Falardeau-Ramsay (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Lalande D.J.—Montreal, October 29 and Novem- ber 2, 1979.
Judicial review — Labour relations — Application to vacate arbitral award made pursuant to Public Service Staff Rela tions Act dismissing applicants' grievances challenging the National Film Board's decision to cease employing them on the termination of their contracts — Prior to written contracts, applicants' contracts of employment were purely verbal — Contention that the written contracts were invalid because they were concluded without the participation of the union certified to represent employees in the bargaining unit to which the employees belonged contrary to s. 40(1)(a)(i) of the Public Service Staff Relations Act — Whether or not the arbitrator was correct in holding that the applicants had been hired for a specific term — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 40(1)(a)(i).
APPLICATION for judicial review. COUNSEL:
Mortimer G. Freiheit for applicants. J. C. Demers for respondents.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal, for applicants.
Deputy Attorney General of Canada for respondents.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Applicants formerly worked for the National Film Board. They are here seeking to have an arbitral award made pursuant to the Public Service Staff Relations Act, R.S.C. 1970, c. P-35, vacated. That decision dismissed the two grievances which they submitted as a challenge to the decision of the Board to cease employing them after November 11, 1977.
Both applicants began working for the Board in 1975. Their contract of employment was purely verbal: they were paid every week as if they had been suppliers of goods, on signature of receipts describing the services rendered during the week and indicating their cost. Early in May 1977, this situation came to an end. Each of the two appli cants then concluded with the Board a new con tract, expressed in writing, under which their ser vices were retained for a specific period, ending on November 11, 1977. In the following October, the Board warned applicants that their contracts of employment would not be renewed when they expired. Each applicant then submitted a griev ance challenging this decision. It is these two grievances which the decision a quo dismissed.
There is no need to re-state here the entire argument of counsel for the applicants. At the hearing, he agreed that the success of his appeal depends on the reply that must be made to the following question: was the arbitrator correct in holding that both applicants had been hired for a specific term ending on November 11, 1977?
According to counsel for the applicants, the arbitrator erred in holding that applicants had been hired for a fixed term. He maintained that the two contracts of employment for a specific term, concluded in May 1977, were void, and that because of this the arbitrator should have ignored them. He contended that the invalidity of these two contracts of employment resulted from the fact that they were concluded by the Board and applicants without the participation of the union certified to represent employees in the bargaining unit to which applicants belonged. By thus nego tiating and concluding these contracts of employ ment for a specific term, applicants and the Board allegedly contravened section 40(1)(a)(i) of the Public Service Staff Relations Act, which gives a certified employee organization the exclusive right
to bargain collectively on behalf of employees in the bargaining unit and to bind them by a collective agreement ...
In my view, this argument must be dismissed.
The exclusive right enjoyed by a certified union under section 40(1)(a)(i) is to negotiate and con-
dude a collective agreement. Here, the parties did not usurp this right of the certified union, since they neither negotiated nor concluded a collective agreement. What they did was to terminate individual contracts of employment for unspecified terms and replace them with new contracts of employment for specified terms. The only obliga tion imposed on them by the Act regarding the conclusion of the contracts was that the latter should not contain working conditions different from those contained in the collective agreement then in effect. This obligation was observed by the parties. The collective agreement stipulated noth ing regarding the length of the contracts of employment, and it applied to employees hired for a fixed term as well as to those hired for an indefinite time.
For these reasons, I would dismiss the application.
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LE DAIN J. concurred.
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LALANDE D.J. concurred.
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