A-496-81
The Queen (Applicant)
v.
Canadian Union of Postal Workers (Respondent)
Court of Appeal, Heald, Urie JJ. and Kerr D.J.—
Ottawa, September 9; Toronto, September 14,
1982.
Judicial review — Applications to review — Public Service
— Application to review and set aside decision of member of
Public Service Staff Relations Board directing employer to
hire part-time relief employees to cover absences of part-time
staff — Collective bargaining agreement requires "regular
employees" to cover absences — Employer can assign regular
full-time, as well as part-time employees, to relieve absent
regular part-time employees — Appeal allowed — Public
Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 98 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
decision of a member of the Public Service Staff Relations
Board directing the Post Office to hire part-time relief
employees to cover absences of part-time staff. The Post Office
in Campbellton, New Brunswick, assigned two full-time
employees to work the hours normally worked by two part-time
employees who were on vacation. The Board decided that the
Post Office was in breach of the collective agreement which
requires regular full and part-time staff to maintain service
standards during absences and which, elsewhere, stipulates that
part-time employees can only be used for part-time
requirements.
Held, the application is allowed. The Board's interpretation
of the agreement is inconsistent with a section pursuant to
which the Post Office agreed to have a sufficient number of
regular employees to cover normal absences. This is a particu
lar section which describes the manner in which normal
absences may be covered. The employees who covered for the
part-time staff were regular employees. Therefore, the agree
ment was not breached. The matter is referred back on the
basis that the Post Office is not obliged to assign only part-time
employees for the relief of absent regular part-time employees.
COUNSEL:
M. Ciavaglia for applicant.
J. McCormick for Public Service Staff Rela
tions Board.
John B. West for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board on its
own behalf.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision rendered on August
25, 1981 by Donald MacLean, Board Member and
Adjudicator of the Public Service Staff Relations
Board, respecting a reference brought by the
respondent under section 98 of the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35.
The relevant facts are simple and not in dispute.
During the week of September 14 to September
20, 1980, Bourgeois and Doucett, regular part-
time employees at the Post Office in Campbellton,
New Brunswick were both absent on vacation. For
their relief, Messrs. Clark and Gallant, both full-
time employees at the Campbellton Post Office,
were assigned to work the hours normally worked
by Messrs. Bourgeois and Doucett. As a result,
both Messrs. Clark and Gallant worked their full
71 hours for each day of that week. The respond
ent submitted before the Board that in replacing
part-time employees with full-time relief
employees, the employer had contravened articles
39.02(a), 39.03, 39.07 and Appendix "H" of the
collective agreement. Those provisions read as
follows:
39.02 Staffing
(a) The corporate policy on staffing is that sufficient regular
full-time and part-time staff are to be employed to maintain
service standards for predictable workloads and absences and it
is agreed that this policy will be followed.
39.03 Work Force
The Employer agrees to have in his work force a sufficient
number of regular employees to cover the rate of normal
absences due to illness, special leave, vacation leave and leave
without pay.
39.07 Use of Part-Time Employees
The Employer agrees that part-time employees are to be used
only for the part-time operational requirements, that is, during
peak periods and that, whenever practicable, such positions
shall be combined in order to create full-time positions.
"Peak period" should be understood to mean a period of time
not exceeding five hours during which a large volume of mail
requires the presence of a greater number of employees. It is
incumbent on the Employer to determine the time of such a
period per day, which may vary according to places and dates.
The Employer may ask a part-time employee to continue to
work beyond the peak period.
The normal work week of part-time employees shall be at
least twenty (20) hours. The part-time employee shall be
allowed two (2) days of rest weekly. Any work performed by a
part-time employee on one or the other of those two days shall
constitute overtime and be remunerated at the rate of time and
a half.
APPENDIX "H"
MEMORANDUM OF AGREEMENT
REGULAR PERSONNEL
On the basis that relationships vary from post office to post
office, the Employer will inform the local Union of the current
number of regular personnel utilized for replacement of
absences as specified in clause 39.03.
The Board agreed with this submission and
allowed this aspect of the respondent's reference,
finding that the replacement of part-time
employees by full-time employees was contrary to
the employer's obligations contained in articles
39.02(a), 39.03 and 39.07 of the collective agree
ment in that the employer should have sufficient
part-time relief employees, in addition to full-time
employees, to cover absences. The employer was
accordingly directed "... to initiate staffing action
with a view to ensuring that there are a sufficient
number of regular part-time employees to main
tain service standards for predictable workloads
and absences for part-time operational require
ments" (Case, page 37). It is this portion of the
Board's decision and order which forms the subject
matter of this section 28 application.
The rationale of Mr. MacLean's decision is, in
my view, contained in the following passage from
his reasons for decision (Case, page 37):
In my opinion the maintenance of "service standards for pre
dictable workloads and absences" in 39.02(a) must be referable
to "part-time operational requirements" in 39.07, as well as
full-time operational requirements. Mr. Lee would have me say
that full-time staff are the only ones that are required by
39.02(a) to be employed for workloads and absences while
part-time employees are to be employed only for predictable
workloads. He would suggest that part-time employees need not
be employed to cover for absences. But that is not what
39.02(a) states. What it does state quite categorically is that
"sufficient regular full-time and part-time staff are to be
employed ..." and that part-time staff (as well as full-time)
are to be employed to maintain service standards for predict
able absences (as well as workloads).
What I understand him to be saying is that since
article 39.02 requires sufficient regular full-time
and part-time staff to maintain service standards
for predictable workloads and for absences and
since article 39.07 stipulates that part-time
employees can only be used for part-time opera
tional requirements, it automatically follows that
part-time employees must be employed to cover
for absences by part-time employees. My problem
with this interpretation is that it is inconsistent
with the plain and unambiguous words used in
article 39.03. By that article, the employer agrees
to have in the work force a sufficient number of
regular employees to cover the rate of normal
absences due to "... leave without pay". It is
agreed that the employees who substituted for the
part-time employees were "regular employees" but
the objection is that they were full-time rather
than part-time employees. Article 39.03 makes no
mention of part-time or full-time employees. It
refers only to regular employees. By using regular
employees to cover for the absent part-time
employees, the employer has, in my view, complied
with the provisions of article 39.03. Article
39.02(a) sets out the general staffing policy with
respect to the employment of full-time and part-
time staff but article 39.03 is the particular section
which describes the manner in which normal
absences may be covered. The reference in Appen
dix "H" to clause 39.03 and to "regular person
nel", without differentiating between part-time
and full-time regular personnel, further fortifies
my view in this regard.
There is no allegation here that the employer
does not have sufficient full-time relief staff. It is
also significant that the Campbellton Post Office
only has five part-time employees. The Board's
construction of the agreement would mean that an
extra part-time employee would have to be hired to
cover for, at the most, 15 weeks vacation annually
plus the other normal absences of the part-time
employees.
The Board is interpreting article 39.03 as
though it read: "The employer agrees to have in
his work force a sufficient number of regular
part-time employees to cover the rate of normal
absences by part-time employees due to illness,
special leave, vacation leave and leave without
pay." (The words added to the actual text of
article 39.03 are underlined.)
I am not prepared to so construe article 39.03.
As stated supra, such a construction would place
an unreasonable burden on the employer. It would
also encroach upon the management rights
reserved to the employer by article 2.01 of the
agreement which reads as follows:
2.01 Rights
It is recognized that the Employer exercises rights and
responsibilities as management, which are subject to the terms
of this Agreement.
In my opinion, the meaning of article 39.03 is
clear and unambiguous. It allows the employer to
cover normal absences due to employees being on
leave without pay by the use of regular employees
and "regular employees" as used in that article
clearly includes full-time regular employees.
For these reasons, I would allow the section 28
application and set aside the decision dated August
25, 1981 of Donald MacLean, Board Member and
Adjudicator of the Public Service Staff Relations
Board, in so far as it decides that the employer
may not assign full-time employees for the relief of
regular part-time employees, and orders the
employer to initiate staffing action with a view to
ensuring that there are a sufficient number of
regular part-time employees to maintain service
standards for predictable workloads and absences
for part-time operational requirements. I would
also refer this matter back to the Board for deci
sion on the basis that the employer is not obliged
under the collective bargaining agreement to
assign only part-time employees for the relief of
absent regular part-time employees.
URIE J.: I agree.
KERR D.J.: I agree.
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.