Government cannot prevent clerks from becoming lawyers
Employer cannot negotiate individual terms and conditions of employment with prospective employees, arbitrator holds
In ALOC v. Ontario (Management Board of Cabinet), an arbitrator held that the Government cannot prevent law clerks from being called to the Bar as a condition of employment.
Like most other courts, the Ontario Superior Court of Justice hires current and former law students to work as clerks. Some of the clerks begin work after their graduation from law school, in which case their clerkship constitutes the articles law students must complete in order to be called to the Ontario bar. Other individuals are hired by the Court to work as clerks after they have completed their articles elsewhere.
In 2007, the Association of Law Officers of the Crown (ALOC) obtained bargaining rights for articling students, including clerks. Shortly thereafter, individuals applying for clerkships at the Superior Court were told that they would not be allowed to be called to the bar during the term of their clerkship. Individuals hired as clerks were required to sign an agreement stating that if they were called to the bar during the term of their clerkship, “this contract will be void.”
As a result of this “pre-employment condition”, clerks who had completed their articles elsewhere were not allowed to be called to the bar even though they had completed all the requirements and were otherwise eligible to be called. ALOC filed a grievance, claiming that this condition of employment was unlawful. In this regard, it noted that there was a bargaining regime in place and that ALOC was the exclusive bargaining agent for both students and lawyers. It was therefore not open to the employer to negotiate terms of employment with individuals, much less unilaterally impose them. ALOC also argued that the condition was also a cost saving measure bearing no rational relationship to the position, as persons called to the bar would have to be paid at the beginning lawyer rate.
In response, the government argued that Superior Court clerkships were prestigious and highly sought after and that, on numerous occasions in the application process, individuals were advised of the requirement that they not be called to the bar during their clerkship. There was no unfairness to them if they accepted the condition voluntarily. Moreover, the work of a clerk did not change when an individual became eligible to be called to the bar, so the compensation should not change. Further, the Court did not have the budget to pay for clerks at lawyer rates.
The arbitrator’s decision
Arbitrator William Kaplan allowed the grievance. He held that there was nothing in the ALOC collective agreement that would permit the employer to negotiate individual terms and conditions of employment with prospective employees:
It is completely within the employer’s power to ensure that it hires no clerks who are eligible for call to the bar by only hiring clerks who have not yet articled … But if the employer decides to hire clerks eligible to be called to the bar, it cannot unilaterally impose a contractual term upon them that prevents them from being called. Fundamental terms and conditions of employment must be negotiated with the bargaining agent. The parties can, if they wish, therefore, negotiate specific compensation for clerks who have been called to the bar. But failing that, the default compensation is as provided for in the ALOC collective agreement because any significant unilaterally imposed pre-employment term or condition, as the Supreme Court has made very clear, is prohibited.
The arbitrator concluded that the imposition of a prohibition on being called to the bar could not be imposed unilaterally in a collective bargaining regime, whether or not the individual clerks agreed. Accordingly, he held, the prohibition was nullified and any eligible clerk may, if they wish, be called to the bar. Any such individuals would then have to be paid in accordance with the ALOC collective agreement unless the parties negotiated otherwise.
Click here to read the award.