A-46-82
Economists', Sociologists' and Statisticians' Asso
ciation (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Heald, Urie JJ. and Kerr D.J.—
Ottawa, September 23 and 24, 1982.
Judicial review — Applications to review — Public Service
— Whether P.S.S.R.B. has jurisdiction to add terms to collec
tive agreement dealing with downgrading of positions and
rights of employees to refuse to work, in view of s. 7 of Public
Service Staff Relations Act giving Treasury Board exclusive
authority to classify positions — Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35, ss. 7, 70(1) — Financial
Administration Act, R.S.C. 1970, c. F-10, s. 7(1) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside an
arbitral award of the Public Service Staff Relations Board. The
Arbitration Board concluded that it lacked jurisdiction to add
the following terms and conditions of employment:
(a) continuance of former rates of pay after downgrading of
certain positions;
(b) right of employee to withdraw from work where he has
reasonable grounds to believe that his duties impose a danger
to health or safety;
(c) right of employee to refuse to do the work of striking
employees without being subject to disciplinary action.
Held, the appeal is allowed in respect of (a). A clause which
pertains to rates of pay for employees affected by downward
reclassification does not encroach upon the exclusive authority
of the Treasury Board to classify or reclassify under section 7
of the Public Service Staff Relations Act. The article clearly
deals with "rates of pay" and is thus included in the jurisdiction
of an arbitral board.
With respect to (b) and (c), the appeal is dismissed. Article
(b) is, in pith and substance, a provision dealing with conditions
of employment relating to health and safety in the workplace.
Although Article (c) is linked to the quantum of disciplinary
penalty that may be assessed, its essential subject matter does
not fall within section 70.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
The Queen v. Public Service Alliance of Canada, [1980]
1 F.C. 801 (C.A.).
DISTINGUISHED:
The Queen v. Public Service Alliance of Canada, [1981]
2 F.C. 625 (C.A.).
COUNSEL:
Catherine H. MacLean for applicant.
John E. McCormick for respondent.
Joseph A. Pethes for Attorney General of
Canada.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
John E. McCormick, Ottawa, for respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside an arbitral award of the
Public Service Staff Relations Board dated
December 14, 1981. The arbitral award related to
a dispute between the Economists', Sociologists'
and Statisticians' Association (E.S.S.A,), the
applicant herein, and Her Majesty in right of
Canada as represented by the Treasury Board.
The Board of Arbitration concluded that it lacked
jurisdiction to determine certain matters referred
to it for resolution by the applicant. Those matters
are as follows:
(a) Proposed Article 16.08 and accompanying
Pay Notes 10-14;
(b) Proposed Article 25.01; and
(c) Proposed Articles 30.02 and 30.03.
The applicant challenges these portions of the
Arbitral Board's decision which thus form the
subject matter of this section 28 application.
(a) Proposed Article 16.08 and accompanying
Pay Notes 10-14
It was agreed by counsel for the parties that the
position of Pay Notes 10-14 which accompanied
Article 16.08 is identical to that of Article 16.08
and that the Court's decision with respect to
Article 16.08 should apply equally to the said Pay
Notes. Turning now to Article 16.08, that pro
posed Article reads as follows:
16.08 Employees whose positions have been downgraded as a
result of the reclassification of the E.S. group on July 1, 1981
shall be paid at the rate of pay in Appendix A corresponding to
their former level until such time as they vacate that position.
The Board dealt with this matter as follows (Case,
page 079):
With respect to the Association's proposed new Clause 16.08,
the Board is of the opinion that its subject matter does not fall
within the boundaries of section 70 of the Public Service Staff
Relations Act and therefore cannot be dealt with by a board of
arbitration. While the Association's proposal purports to deal
with "pay administration" its essential purpose is to limit the
effects of a downward reclassification of positions on particular
employees. Section 7 of the Act establishes the Treasury
Board's exclusive authority to classify positions in the Public
Service and an arbitral award cannot encroach on this author
ity by modifying the effects of classification (or reclassifica-
tion). It may be noted that the Treasury Board has issued
Regulations Respecting Pay on Reclassification or Conversion
(Sub-chapter 510-1 of the Personnel Management Manual--
September 20, 1978), in Part I of which provisions are made
for "Incumbents of Positions which have been reclassified to a
group and/or level having a Lower Maximum Rate of Pay".
I agree with the Board that its jurisdiction to deal
with Article 16.08 must be found in subsection
70(1) of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, if it is to be found at all.
That subsection reads as follows:
70. (1) Subject to this section, an arbitral award may deal
with rates of pay, hours of work, leave entitlements, standards
of discipline and other terms and conditions of employment
directly related thereto.
The Board, in its reasons quoted supra, also made
reference to section 7 of the Public Service Staff
Relations Act. That section reads as follows:
7. Nothing in this Act shall be construed to affect the right
or authority of the employer to determine the organization of
the Public Service and to assign duties to and classify positions
therein.
The Board found that "the essential purpose" of
Article 16.08 "... is to limit the effects of a
downward reclassification of positions on particu
lar employees" and that since section 7 gives to the
Treasury Board exclusive authority to classify
positions in the Public Service, an arbitral award
which would modify the effects of classification or
reclassification encroaches on that authority. I am
not persuaded that this view of the matter is the
correct one. I do not agree that a clause such as
16.08 which admittedly pertains to rates of pay for
the employees affected by the downward reclassifi-
cation encroaches upon the exclusive authority of
the Treasury Board to classify or reclassify. A
reduction in pay is only one of the possible conse
quences of a downward reclassification. As was
pointed out by counsel for the applicant, there are
many other possible consequences or results such
as, for example, the loss of perquisites attendant
upon employment in the higher classification'. But
these consequences do not affect the right of the
Treasury Board to reclassify. I agree with appli
cant's counsel that subsection 7(1) of the Finan
cial Administration Act, R.S.C. 1970, c. F-10,
clearly separates the power of the Treasury Board
to classify positions on the one hand from its power
to determine and regulate pay on the other. Para
graph 7(1)(c) empowers the Treasury Board to:
"provide for the classification of positions and
employees in the public service" while paragraph
7(1)(d) empowers it to: "determine and regulate
the pay to which persons employed in the public
service are entitled for services rendered, the hours
of work and leave of such persons and any matters
related thereto". Because one of the results of a
reclassification is a change in rates of pay, that
circumstance cannot, in my view, operate so as to
deprive an arbitral board of jurisdiction conferred
upon it pursuant to subsection 70(1) supra. Article
16.08 clearly deals with "rates of pay" and is thus
included in the jurisdiction of an arbitral board. In
the case of The Queen v. Public Service Alliance
of Canada 2 , I said:
The kind of question which I think is contemplated under
section 70(1) when "rates of pay" are referred to, is a question
as to whether the present pay rate of employees should be
increased, decreased, or left at the present rate ....
Article 16.08 in the case at bar clearly deals with
such a question'.
' It is possible to think of many such perquisites, e.g.: the
right to First-Class air travel; the right to a private secretary;
the right to a Government automobile, etc.
2 [1980] 1 F.C. 801 (C.A.) at p. 804.
3 Compare: The Queen v. Public Service Alliance of Canada,
[1981] 2 F.C. 625 (C.A.) where this Court held that an arbitral
board had jurisdiction under subsection 70(1) to consider a
clause providing for a further payment to an employee dis
missed under section 31 of the Public Service Employment Act
since he was considered to have earned such amount by the
performance of his duties of employment.
Accordingly and for the foregoing reasons I
have concluded that the Board was in error in
declining to exercise jurisdiction in respect of pro
posed Article 16.08 and accompanying Pay Notes
10-14.
(b) Proposed Article 25.01
This proposed Article reads as follows:
25.01 An employee shall not be penalized, discriminated
against, or suffer any loss of wages as a result of exercising the
right to withdraw from work where an employee has reasonable
cause to believe that a particular work process or condition
directly associated with the employee's duties poses a danger to
his safety or health or that of another person.
The Board declined jurisdiction in respect of this
clause because in its opinion it "is essentially
concerned with rights of employees to conditions
of health and safety in the work place" and "as
such it clearly falls outside of subsection 70(1) of
the Act and is therefore not arbitrable". Counsel
for the applicant submitted that Article 25.01 fell
within the ambit of subsection 70(1) because it
deals with "standards of discipline and other terms
and conditions of employment directly related
thereto". I do not accept this submission. In my
view, the essence of this proposed Article is that it
would permit an employee to withdraw from work
where an employee has reasonable cause to believe
that there is a danger to his safety or health or
that of another. The Article is entitled "Health
and Safety" and in my view, it is, in pith and
substance, a provision dealing with conditions of
employment relating to health and safety in the
work place. I have thus concluded that the Board
was not in error in declining jurisdiction in respect
of Article 25.01.
(c) Proposed Articles 30.02 and 30.03
These proposed Articles read as follows:
30.02 The Employer recognizes the right of an employee, on
grounds of conscience, to refuse to cross picket lines and shall
not take additional disciplinary action beyond that specified in
the PSSRA against such an employee which would be more
severe than a written reprimand.
30.03 The Employer recognizes the right of an employee, on
grounds of conscience, to refuse to do the work of striking
employees and shall not take disciplinary action beyond that
specified in the PSSRA against such an employee which would
be more severe than that of a written reprimand.
Here again, the Board declined to exercise juris
diction because in its view, the essential subject
matter was not encompassed by subsection 70(1)
of the Act and is therefore not arbitrable. Here
again counsel for the applicant submitted that
Articles 30.02 and 30.03 fall within the term
"standards of discipline and other terms and con
ditions of employment" as it is used in subsection
70(1). As in the case of Article 25.01 supra, I do
not agree with this submission. The sub-heading to
Article 30 is entitled "Illegal Strikes" and, in my
opinion, neither Article 30.02 nor 30.03 in essence,
deals with "standards of discipline". I agree with
the Board that: "The fact that these new proposals
are linked to the quantum of the disciplinary
penalty that may be assessed by the Employer does
not change their essential subject matter which is
not arbitrable." Accordingly, I agree with the
Board's decision to decline jurisdiction in respect
of Articles 30.02 and 30.03.
In summary, it is my conclusion that the Board
was in error in declining jurisdiction in respect of
proposed Article 16.08 and accompanying Pay
Notes 10-14 but correct in declining jurisdiction in
respect of proposed Article 25.01 and proposed
Articles 30.02 and 30.03.
I would therefore allow the section 28 applica
tion in part, and set aside the decision of the Board
in so far as it declined jurisdiction in respect of
proposed Article 16.08 and accompanying Pay
Notes 10-14 and refer the matter back to the
Board on the basis that the matters in Article
16.08 and accompanying Pay Notes 10-14 fall
within its jurisdiction.
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.