A-506-75
The Attorney General of Canada (Applicant)
v.
The Public Service Staff Relations Board
(Respondent)
Court of Appeal, Jackett C.J., Urie J. and Kerr
D.J. Ottawa, January 15 and 16, 1976.
Judicial review—Public Service—Staff Relations Board
upholding adjudicator's decision that grievor entitled to over
time pay by virtue of collective agreement—No express provi
sion in collective agreement—Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, s. 23.
The Public Service Staff Relations Board upheld an
adjudicator's decision that the grievor was entitled to compen
sation at the hour for hour rate for 119 hours of overtime, by
virtue of the collective agreement. The agreement provides for
an annual salary, and overtime pay at time and one-half for
hours worked in excess of forty-five hours in a week. The
question was whether the grievor was entitled to overtime
payment not expressly provided for in the agreement, i.e.
overtime not within the phrase "hours worked in excess of
forty-five ... hours in a work week."
Held, setting aside the decision, the matter is referred back
to the Board, with a direction that it hold that the adjudicator
erred in law, and that the matter be referred back to the
adjudicator. Assuming that previously, annual professional sal
aries were payable for all services performed, it is easy to
conceive of the scheme in the collective agreement as a compro
mise between payment for all overtime at premium rates, and
none at all. It cannot be taken as impliedly providing for
payment of overtime for which it does not expressly provide.
Article 20.01 of the agreement provides that except as provided
in this article, "existing terms and conditions governing the
application of pay are not affected." The question remains
whether the grievor is entitled to overtime pay by virtue of the
"terms and conditions governing the application of pay" to the
employees in question prior to the agreement being entered
into, and should be considered when referred back to the
adjudicator.
Trollope & Coils Ltd. v. North West Metropolitan
Regional Hospital Board [1973] 2 All E.R. 260,
discussed.
APPLICATION for judicial review.
COUNSEL:
D. Friesen for applicant.
J. D. Richard and J. A. Kavanagh for
respondent.
SOLICITORS:
Deputy Attorney General of Canada 'for
applicant.
Gowling & Henderson, Ottawa, for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Public Service Staff
Relations Board.
On May 30, 1974, an adjudicator gave a deci
sion in connection with a grievance brought before
him by Donald Garth Evely concerning a claim for
payment of overtime.
The claim was based upon an agreement of
March 23, 1973, between the Treasury Board and
the Professional Institute of the Public Service of
Canada concerning the "Engineering and Land
Survey" group (hereinafter referred to as the
"Collective Agreement"). The Adjudicator came
to the conclusion that the grievor was entitled to
the overtime compensation claimed by virtue of
the terms of that agreement and rendered a deci
sion reading, in part:
... for the reasons already given, the grievance is sustained,
and the employer is ordered to compensate the grievor at the
hour for hour rate for one hundred and nineteen hours worked
by the grievor during the period in question ....
Under section 23 of the Public Service Staff
Relations Act, which reads in part as follows:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the Arbitra
tion Tribunal or to an adjudicator pursuant to this Act, the
Arbitration Tribunal or adjudicator, as the case may be, or
either of the parties may refer the question to the Board for
hearing or determination ...
the Treasury Board referred to the Public Service
Staff Relations Board the following question:
Whether the Adjudicator erred in law or exceeded his jurisdic
tion in deciding that the Grievor is entitled to compensation at
the hour for hour rate for 119 hours worked by him during the
periods in question.
In September, 1975 the Public Service Staff
Relations Board, by a majority decision, rendered
a decision concluding as follows:
37. Consequently, we find that the Adjudicator did not err in
law in interpreting the collective agreement the way he did.
38. In the result the reference must be and is hereby
dismissed.
This is the decision that is the subject matter of
this section 28 application.
In so far as relevant, the collective agreement
provides
(a) for an annual salary for each member of
this group of employees (see Article 20);
(b) for a "normal work week", which is pro
vided for by Article 17.01 and which reads as
follows:
**17.01 The normal work week shall be thirty-seven and
one-half (37 1 / 2 ) hours and the normal daily hours shall be
seven and one-half (7 1 / 2 ) hours. The employer may vary
these hours to allow for summer and winter hours or to
suit varying conditions of operations, provided that the
annual total hours equal that which would be obtained
with no variation.
and
(c) for "overtime" payments, which are pro
vided for by Article 18, the relevant portion of
which, as far as the grievance in question is
concerned, reads as follows:
**18.03 An employee on field operations who is required
to work overtime shall be compensated at the rate of time
and one-half (1 1 / 2 ) for all hours worked in excess of
forty-five (45) hours in a work week during which he was
on such operations.
The grievance raised the question whether the
grievor was entitled to be paid for overtime for
which no express provision is made by the collec-
tive agreement, namely, "overtime"' not falling
within the words "hours worked in excess of forty-
five (45) hours in a work week" in Article 18.03.
The view adopted by the Adjudicator and the
Board would appear to be, in effect, that, the
agreement having provided for payment of time
and a half for overtime arising from working in
excess of 45 hours in a week, it must have been
intended that other overtime would be paid for at
"straight" time rates or, as they are referred to in
the agreement, at "hour for hour" rates.
In my view, many a contract cannot be intelli
gently understood unless it is considered in relation
to the situation that it was designed to alter; and
this is frequently true of collective agreements. In
this case, if we assume (as would seem probable
having regard to the way in which the overtime
provision is framed) that, immediately prior to the
time when the version of the collective agreement
that first contained provisions to the above effect
was entered into, annual salaries of professional
gentlemen such as the grievor covered thereby
were payable for all services performed (whether
such services were completed in less than normal
working time or required work beyond normal
working time), it is quite easy to conceive of the
scheme embodied in this collective agreement as
being a compromise between payment for all over
time at premium rates and no payment at all for
overtime—quite an ordinary plight for professional
Article 2.01(h) defines "overtime" as follows:
"overtime" means work performed by an employee in excess
of his normal scheduled daily hours of work;
gentlemen. 2 In the circumstances, I am of opinion
that the collective agreement cannot be taken as
impliedly providing for payment of overtime com
pensation for which it did not expressly provide.
This conclusion is not, however, the end of the
matter. Article 20.01 of the collective agreement
reads as follows:
**20.0I Except as provided in the following clauses of this
Article, the existing terms and conditions governing the
application of pay to employees are not affected by this
Agreement.
Having concluded that the collective agreement
itself does not confer a right to overtime payment
in the circumstances here in question, the question
remains whether the grievor is entitled to the
overtime claimed by virtue of the "terms and
conditions governing the application of pay" to the
employees in question immediately prior to the
time that the collective agreement was first
entered into.
In my view, the decision of the Board should be
set aside and the matter should be referred back to
the Board with a direction that it should answer
the question of law by holding that the Adjudica
tor erred in law in deciding that the grievor was,
by virtue of the collective agreement, entitled to
compensation at the "hour for hour" rate for the
periods in question and that the matter should be
2 If this assumption is correct and the previous state of affairs
was one in which there was no payment for overtime, it is
almost inconceivable that the parties would have agreed upon
straight time for some hours of overtime and time and a half
for additional hours without spelling it out completely. If, on
the other hand, the previous state of affairs was one in which
straight time was paid for all overtime and the change was an
increase to time and a half for certain hours, the present clause
is a conceivable implementation of such change. For some
indication of how to approach the problem as to when an
unexpressed obligation should be implied in a written agree
ment , see Trollope & Coils Ltd. v. North West Metropolitan
Regional Hospital Board [1973] 2 All E.R. 260.
referred back by the Board to the Adjudicator so
that he can consider the question whether the
grievor is entitled to such compensation by virtue
of the terms and conditions referred to in Article
20.01 of the collective agreement.
* * *
URIE J. concurred.
* * *
KERR D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.