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Labour - Arbitration. Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers labour arbitration jurisprudence (for safety measures) - here in the course of a Charter s.8 analysis, finding it not useful as precedent as being restricted to the collective agreement context:(a) Arbitral jurisprudence
[108] Contrary to the appellants’ submissions, I believe the Application Judge was correct in considering arbitral jurisprudence with caution, as not being conclusive in a section 8 analysis context.
[109] Arbitral jurisprudence arises in an entirely different statutory context and applies a different analysis. The arbitral decisions relied upon by the appellants in the present matter are concerned with management rights clauses found in collective agreements and their use by employers to unilaterally impose safety measures, including drug and alcohol random testing, in a dangerous workplace.
[110] The validity of such unilateral measures must be assessed using a specific test developed in the labour law context, requiring case-by-case balancing to preserve public safety concerns while protecting privacy (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd., 2013 SCC 458 at paras. 4, 22−23 (Irving). One important consideration in assessing the validity of this type of unilateral measures is the employees’ right not to be discharged or disciplined by an employer, save for "“just cause”" or "“reasonable cause”" where the impugned measure is enacted as a vehicle for discipline (Irving at para. 23).
[111] According to that test – known as the "“KVP”" test –, "“any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable”" (Irving at para. 24).
[112] As we have seen, the section 8 reasonableness test does not bring into play the exact same set of considerations. It requires a flexible approach that takes its colour from the totality of circumstances. What is in issue here is clearly outside the confines of the unilateral exercise of a management rights clause in a collective agreement. What is in issue is the validity of requirements imposed on employers, by a federal regulator as a legally binding condition, to the statutory license the employers must hold to carry on with any of the regulated activities. This calls for a different, more nuanced, reasonableness analysis.
[113] But even arbitral jurisprudence is not a complete bar to the imposition of random testing in a dangerous workplace. On the contrary, if random testing "“represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified”" (Irving at para. 52). I note from Irving that absent a reasonable cause, such as a general problem of substance abuse in the workplace, it is the unilateral imposition of random testing for "“all employees in a dangerous workplace”" that has been generally rejected by arbitrators (Irving at para. 6) (italicized in original). This is not the case here, random testing being imposed to safety-critical workers only, who represent less than 10% of the nuclear industry’s entire workforce.
[114] In my view, the Application Judge was right to distance himself from arbitral jurisprudence on the ground that it lacks authoritative value for the purposes of the section 8 analysis that he was called upon to perform in the present matter. . PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court briefly considered the adjudicative status of a labour arbitrator:[28] The arbitrator’s decisions are final, binding and precedent setting. Greater procedural protections are generally required when there is no route of appeal or when the decision is determinative of the issue: Baker, at para. 24.
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[34] ... The Arbitrator had the authority to deny an adjournment. Labour arbitrators are experts and are sensitive to the dynamics at play in labour relations disputes: Toronto (City) Board of Education v. OSSTF, District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, at para. 35. . Toronto Professional Fire Fighters’ Association v. City of Toronto
In Toronto Professional Fire Fighters’ Association v. City of Toronto (Div Court, 2023) the Divisional Court notes that contractual law governs labour arbitrators in the interpretation of collective agreements, subject to deference on review:[21] Labour arbitrators are bound by common law principles of contractual interpretation when interpreting collective agreements. The goal of the interpretation exercise "is to determine the objective intention of the parties based on the words they have chosen to use in their agreement" and a "practical, common-sense approach is to be applied to contractual interpretation." The parties are assumed to have intended what they said and the meaning of the collective agreement is to be sought in its express provisions. However, in the field of labour arbitration a reviewing court is not to set aside the findings of a properly constituted board of arbitration which has been called upon to interpret a collective agreement unless the court is of the opinion that the interpretation given to the contract by the board is one that the language of the contract cannot reasonably bear. The attraction of alternative interpretations and even the court's preference for such are both irrelevant considerations if the board's interpretation can reasonably be taken from the agreement. (see: Canadian Union of Public Employees, Local 5825 v. Scarborough Health Network, 2022 ONSC 604; Re I.C.L. International Carriers Ltd. and Teamsters Union, Locals 141, 879, 880 and 938, 1984 CanLII 1989. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers the law of 'policy grievances', here in an Ontario (!) JR of a labour arbitrator's ruling:The Governing Jurisprudence
[54] The Arbitrator’s reference to the KVP analysis is a reference to the test arbitrators use to adjudicate disputes over a rule or policy unilaterally imposed by the employer and not subsequently agreed to by the Union. It is set out in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co., [1965] 16 L.A.C. 73, 1965 CanLII 1009 (Ont. L.A.). To be upheld, any rule or policy must be consistent with the collective agreement, and it must be reasonable. The KVP test has been consistently applied by the courts: see Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd., 2013 SCC 34 (SCC).
[55] In order to satisfy the Arbitrator that Policy 1804 was reasonable, the Employer had to demonstrate that its legitimate business interests outweighed the incursion into the employees’ privacy rights that the policy mandated.
[56] In its written submissions before the Arbitrator on October 31, 2018, the Union referred to numerous decisions, both by arbitrators and the courts, that make it clear how compelling the employer’s objective must be to justify an incursion into an employee’s privacy rights. By way of contrast, as the Arbitrator noted, the Employer cited no authority that would support the incursion in question.
[57] The only arbitral decisions that the Employer filed held that employers could investigate falsified medical records. None of these cases went so far as to permit an employer to require an employee to consent to broad disclosure of their personal health information.
[58] Thus, contrary to the submissions of the Employer, the Arbitrator did not ignore the governing jurisprudence. He applied it. Conversely, the Employer did not refer to any authorities before the Arbitrator or before us that refuted the governing principles that the Arbitrator applied. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers an Ontario (!) labour JR, where the issue was the jurisdiction of an arbitrator. In this quote the court reviews the jurisdiction of labour arbitrators:Governing Principles
[29] In referring to the “governing principles”, the Arbitrator was clearly referring to the Ontario Court of Appeal’s decision in Re Blouin Drywall Contractor Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707.
[30] In Blouin Drywall the Court of Appeal allowed an appeal from a decision of the Divisional Court that quashed an arbitration award on the basis that the board had exceeded its jurisdiction. The award in question was based on a “finding that the company had broken the preferential hiring and hiring hall clauses in the collective agreement by hiring non-union men to do the work of the bargaining unit” (Blouin Drywall). The board granted a remedy for the breach and the Divisional Court found that a portion of that remedy exceeded the board’s jurisdiction. In overturning the Divisional Court’s decision, the Court of Appeal found:When a board of arbitration is satisfied on the evidence that a party to a collective agreement is in breach thereof, it is the board’s obligation to render its decision accordingly. However, that decision is not simply a statement of the finding of the board with respect to the allegation made in the grievance but it is also the consequential order or award, if any, that is required to give effect to the agreement. Certainly, the court is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights and duties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position he would have been in had the agreement been performed. [31] The Blouin decision has long been cited for the principle that a “grievance should be liberally construed so that the real complaint is dealt with.” The fact that the Arbitrator referred to the principle without citing Blouin (which the Union put before him in its submissions) is the type of “omitted detail” that one might expect from a specialized decision-maker.
[32] The Arbitrator accepted that the Union’s “real complaint” was that the FAF consent form (and the policy mentioned in it – Policy 1804) was being used as a vehicle for the Employer to get around the limited disclosure of employee health records and information that the law allows and considers reasonable. As will be discussed further below, the Union argued, and the Arbitrator accepted, that, except as explicitly required by law, medical information may be disclosed in the workplace only for the purposes of accommodation and that information is limited to the information necessary to further that purpose. Further, disclosure is limited to the people who are involved in facilitating accommodation. According to the Union, the FAF consent provisions and Policy 1804 allowed supervisors, managers, and labour relations professionals to access employee health information for a wide variety of purposes unconnected with any legal requirement or with furthering accommodation. . Public Service Alliance of Canada v. Canada (Senate)
In Public Service Alliance of Canada v. Canada (Senate) (Fed CA, 2023) the Federal Court of Appeal comments on the policy 'finality' interest of labour arbitration in judicial review:[13] The Board, in this case, had wide authority—under the interest arbitration process—to resolve matters referred to it, determine the appropriate terms and conditions of employment, and impose those terms via a binding award. This Court has recognized that interest arbitrators are afforded wide discretion to settle the terms of the parties’ collective agreement, and the decisions they make are almost always policy determinations and rarely involve legal issues. Additionally, this Court has recognized that the need for finality, which animates the need for deference in labour cases generally, is particularly acute in interest arbitration cases (Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, 299 A.C.W.S. (3d) 235 at paras. 60−61, 63). . Public Service Alliance of Canada v. Canada (House of Commons)
In Public Service Alliance of Canada v. Canada (House of Commons) (Fed CA, 2023) the Federal Court of Appeal comments on the policy 'finality' interest of labour arbitration in judicial review:[8] The Board, in this case, had wide authority—under the interest arbitration process—to resolve matters referred to it, determine the appropriate terms and conditions of employment, and impose those terms via a binding award. This Court has recognized that interest arbitrators are afforded wide discretion to settle the terms of the parties’ collective agreement, and the decisions they make are almost always policy determinations and rarely involve legal issues. Additionally, this Court has recognized that the need for finality, which animates the need for deference in labour cases generally, is particularly acute in interest arbitration cases (Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, 299 A.C.W.S. (3d) 235 at paras. 60−61, 63). . Elementary Teachers Federation of Ontario v. York Region District School Board
In Elementary Teachers Federation of Ontario v. York Region District School Board (Div Ct, 2020) the Divisional Court commented on a difference between courts and labour arbitrators on the issue of binding precedent:[86] In any event, it is well established that Arbitrators are not bound by any prior arbitration awards (Isabelle v. Ontario Public Service Employees Union, 1981 CanLII 44 (SCC), [1981] 1 S.C.R. 449, at p. 457; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929). This was noted by Iacobucci J. in Weber, at para. 14:The first significant difference between courts and tribunals relates to the difference in the manner in which decisions are rendered by each type of adjudicating body. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the Arbitrator is not bound to follow the decisions of other Arbitrators, even when similar circumstances arise. [87] Furthermore, the Supreme Court in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 5-6, has recognized that labour arbitrators have considerable latitude to develop or modify doctrines appropriate in their field:Labour arbitrators are not legally bound to apply equitable and common law principles . . . in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations.
To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.
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