New job security policy found to breach the statutory freeze
Federal Court of Appeal upholds decision of the PSLRB
In Library of Parliament v. Canadian Association of Professional Employees, the Federal Court of Appeal upheld a decision of the Public Service Staff Relations Board that the Library of Parliament violated the statutory freeze when it introduced a new job security policy after notice to bargain had been given.
The Library of Parliament attempted to change its job security policy after notice to bargain a new collective agreement had been given by the Canadian Association of Professional Employees (CAPE). The previous policy, adopted to minimize the impact of surplus situations, guaranteed employees who had been declared surplus would be provided with other employment opportunities. The onus was on the employer to find such retraining and employment opportunities.
The new policy the Library attempted to introduce made it an employee’s responsibility to find a new position or to secure retraining. It also provided that, if an employee was unable to do so within a year, the employee would be terminated.
The Library had been working on this new policy for a few years, but never mentioned it to the Union until after the Union had issued notice to bargain. Then, after giving a copy of the final policy to the Union, the Library offered to “consult”.
Instead, CAPE filed a complaint with the PSLRB. It asserted that the employer could not introduce a new policy during the “statutory freeze” under the Parliamentary Employment and Staff Relations Act. Section 39 of the Act provides that terms and conditions of employment that may be embodied in a collective agreement, and that are in force, cannot be changed while the parties are negotiating a new collective agreement.
The PSLRB’s decision
The PSLRB agreed with the Union. It held that, even though the policy was not included in the collective agreement, it dealt with terms and conditions of employment which “may be embodied in a collective agreement” within the meaning of the Act. The new policy substantially and fundamentally changed the terms and conditions of employment set out in the previous policy, and did not result from the normal business practice of the Library (changes that are part of conducting business as usual may be exempt from a statutory freeze). It declared that the Library had violated the statutory freeze. Since no CAPE employees had ultimately been affected by the new policy, no other remedy was necessary. The Library sought judicial review of the PSLRB’s decision.
The decision of the Federal Court of Appeal
The Federal Court of Appeal dismissed the application for judicial review. It agreed with the PSLRB that the policy fell within the statutory freeze provision in s. 39 of the Act. It had “no reservation” in agreeing with CAPE that changes to the policy were substantial and fundamental and, as a result, should not have been made during the statutory freeze period.
The Court also clarified two important points in federal public sector labour law. First, it agreed with the PSLRB that a section of the Act that protected an employer’s managerial right to organize its workplace did not allow it to change terms and conditions of employment during a statutory freeze.
Second, it agreed with the PSLRB that another section of the Act that prevents the PSLRB from dealing with certain issues, including lay-offs, in an interest arbitration does not prevent the parties themselves from bargaining these issues into a collective agreement. Since these issues may be bargained into the collective agreement, they are also subject to the statutory freeze in s. 39 of the Act.