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A-731-79
Attorney General of Canada (Applicant)
v.
Roger Leblanc (Respondent)
Court of Appeal, Thurlow C.J., Urie and Ryan JJ.—Ottawa, April 16 and 18, 1980.
Judicial review — Labour relations — Review of decision of Adjudicator pursuant to Public Service Staff Relations Act — Collective agreement between Postal Employees and Treasury Board — Requirement for overtime work perceived near end of shift and request to employees to work overtime made less than one hour from end of shift — Employees refused to work overtime but asked for payment of that overtime, each alleging that he was bypassed in the administering of equal opportunity to overtime and that he was given insufficient notice of need to work overtime — Adjudicator's decision that the employees were "bypassed in the administering of equal opportunity" overturned — Public Service Staff Relations Act, R.S.C. 1970, c. P-35 — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Walter L. Nisbet, Q.C. for applicant. Thomas McDougall, Q. C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: The issue that arises on this application is whether the respondent was "bypassed in administering equal opportunity" to work overtime, within the meaning of Article 15.18 of the collective agreement between the Treasury Board and The Canadian Union of Postal Workers, identified as Code 608/75. The issue is the same and the facts are precisely similar in each of four other applications by the Attorney General of Canada against Paul Langis, A-732- 79; John Horn, A-733-79; Jean-Guy Caissie, A-734-79, and Edouard Williams, A-735-79 seek ing relief from the same decision of an Adjudicator
under the Public Service Staff Relations Act, R.S.C. 1970, c. P-35. All five applications were heard together, the same submissions of counsel being applicable to all of them.
The Article in question reads as follows:
15.18 Penalty for Bypassing
If an employee alleges that he has been bypassed in administer ing equal opportunity and such allegation is substantiated, he shall be paid an amount equal to the amount he would have earned had he worked overtime on the missed opportunity.
The material facts are few. On October 31, 1977 the respondent, along with Langis, Horn, Caissie and Williams were working on a shift that would end at midnight. Toward the end of the shift their supervisor decided that there was a need for one of them to work four hours overtime in the next shift commencing at midnight. At about 11:30 p.m. the supervisor asked each of them, in the order of their seniority, to work the required overtime but each, in turn, refused. As a result the overtime was not worked by anyone. Thereafter each of them grieved, alleging a violation of Article 15.03 and insufficient notice to work over time and asking payment in respect of four hours overtime on the basis that he was bypassed under Article 15.18.
Article 15.03 provides:
15.03 Overtime Notice and Guarantee
An employee shall, wherever possible, be notified at least three (3) hours in advance of coming overtime and in every case at least one (1) hour in advance.
The learned Adjudicator held, largely on the reasoning, with which he agreed, of another Adjudicator in an earlier case, that the offers to work overtime were defective (Article 15.03) and that the respondent and Langis, Horn, Caissie and Williams were all bypassed "in the sense that they were not notified of the overtime at least one hour in advance." He concluded by ordering that each be paid an amount equal to what he would have earned had he worked overtime on the missed opportunity: the sum for four hours pay at the rate of time and one-half.
Article 15 contains, in all, nineteen sub-Articles, all concerned with overtime. They provide, inter
alia, for rates of pay for overtime when worked, for conditions for meal and rest periods and for a system to govern the rights of employees, inter se, to opportunities to work overtime. The language of these provisions is not technical and it is noticeable that the provisions do not amount to a complete code of rules on the subject of equal opportunity to do overtime work. Further, Article 15.03 precedes and does not form part of the group of sub-Articles running from 15.05 to 15.18, inclusive, which deal with the subject of equal opportunity. Article 15.03 may well have a bearing and effect in par ticular situations that can arise under the Articles dealing with equal opportunity but, in my view, it does not bear on the question whether the present respondent was bypassed within the meaning of Article 15.18.
That Article, as it seems to me, poses simply the question whether the respondent was bypassed in administering equal opportunity. What is involved in administering equal opportunity in the variety of situations in which the problem may arise is governed by Articles 15.05 to 15.17 inclusive. The provisions are concerned with assuring that the administration of the system will afford to each employee, as between himself and the other employees, an appropriate share of the opportuni ties to work overtime. That, I think, becomes apparent from reading the Articles and particular ly Article 15.07'. It is only if the employer errs in administering such equal opportunity according to the rules that he incurs the penalty provided by Article 15.18.
' 15.07 Definition of Equal Opportunity
Equal opportunity for overtime work shall mean that once an appropriate list is established, overtime assignments will be offered to persons on the list who have had a fewer number of overtime opportunities until sufficient employees have been obtained to fulfil the requirements. When there is more than one employee who has had a fewer number of overtime opportunities (as mentioned above), overtime assignments will be offered to such employees in the descending order of the appropriate list. Equal opportunity entails no obligation on the part of the Employer for equal distribution of over time hours worked.
Here there is no complaint that the employer failed to follow the equal opportunity provisions and on the facts and the ordinary meaning of the language used in Article 15.18 the question wheth er the respondent was bypassed in administering equal opportunity admits only of a negative answer.
It was submitted on behalf of the respondent that on the facts he was bypassed because he lost an opportunity to work overtime which he would have had if he had had an hour's notice but, in my opinion, the loss of such an opportunity in these circumstances is not a loss of "equal opportunity" since the opportunity, such as it was, was offered Ito him in his proper turn and, as no one to whom it was afterwards offered accepted it, he was no more bypassed or prejudiced than he would have been had the opportunity not been offered to anyone.
Whatever may be the effect of a failure to give at least an hour's notice under Article 15.03 it does not by itself amount to a bypassing in administer ing equal opportunity within the meaning of Article 15.18.
I would set aside the decision and refer the matter back to the Adjudicator to be dealt with on the basis that the respondent was not "bypassed in the administering of equal opportunity" within the meaning of Article 15.18 of the collective agree ment. I would deal with the other applications in the same way.
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URIE J.: I concur.
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RYAN J.: I concur.
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