A-147-86
A-319-86
Public Service Alliance of Canada (Applicant)
v.
The Queen in right of Canada as represented by
Treasury Board (Respondent)
INDEXED AS: P.SA.C. v. CANADA (TREASURY BOARD)
Court of Appeal, Urie, Marceau and Lacombe
JJ.—Ottawa, December 4 and 22, 1986.
Public service — Jurisdiction — Public Service Staff Rela
tions Board — Scope of arbitration — For proposal to be
arbitrable, subject-matter must fall within s. 70(1) of Act and
effect thereof must leave intact Government prerogatives
defined in s. 7 — Union's proposals respecting overtime
assignments and limitation on teaching hours within parame
ters of "hours of work" in s. 70(l) — Proposal requesting
employer to offer overtime duties to incumbents of positions
not affecting employer's freedom to assign duties to positions
— Determining maximum number of hours per day to perform
duty integral part of assignment of duties to positions — To
impose ceiling would impede Government's freedom of action
under s. 7 — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, ss. 7, 56(2), 70(1),(3) — Public Service Employment
Act, R.S.C. 1970, c. P-32 — Financial Administration Act,
R.S.C. 1970, c. F-10.
This case raises the issue of the limits imposed by Parliament
on the powers of arbitration of the Public Service Staff Rela
tions Board. Two bargaining units are involved: the financial
administrators and the language teachers. Following failure to
reach an agreement with Treasury Board, the applicant Union
requested arbitration. The Union's first proposal, which con
cerned the financial administrators, sought to oblige the
employer to offer any overtime work to employees who normal
ly performed the duties involved. Its second proposal would
have limited the number of hours a language teacher could be
required to teach in a classroom every day. The Board rejected
the first proposal on the ground that it would have encroached
on the employer's authority under section 7 of the Public
Service Staff Relations Act to assign duties to and to classify
positions within the Public Service. In the second case, the
Board refused to intervene on the ground that the expression
"hours of work" in subsection 70(1) does not include the
concept of the distribution of duties that may be assigned to
employees. The applications herein seek to review the Board's
decisions.
Held, the application respecting the language teachers
should be denied; the decision respecting the financial adminis
trators should be set aside and the matter referred back to the
Board.
The Board was wrong in declining jurisdiction to deal with
the overtime proposal but right, albeit for a reason other than
the one it advanced, in refusing to consider the possibility of
limiting the number of hours of work a teacher could be
required to do.
Subsection 70(1) focuses on the subject-matter of the pro
posal whereas section 7 concerns the eventual effect of the
proposal on management's freedom of action. Since the sub
stantive and specific provision of subsection 70(1) must always
be construed in the light of section 7, the interpretative and
general provision, a two-step analysis is required to determine
whether a proposal may be the subject of an arbitral award. It
must be established, first, that the proposal falls within one of
the classes of matters set out in subsection 70(1) and then, that
its effect would leave intact the prerogatives of the Government
defined in section 7. With respect to the first step, there is no
doubt that overtime comes within the parameters of "hours of
work" in subsection 70(1). The same can be said of a clause
limiting hours of teaching. Nothing in subsection 70(1) sup
ports a restrictive understanding of what was meant to be
included in the classes of matters referred to as "hours of
work".
With respect to the second step, the Court could not come to
the conclusion that to oblige the Government to offer overtime
duties to the incumbents of the positions could affect its
freedom to organize the Public Service as it sees fit or to assign
duties to the positions it has created. On the other hand, the
determination of the maximum number of hours per day that
employees may be required to perform a particular duty is an
integral part of the assignment of duties to positions. By
accepting such a proposal, the Board would be impairing the
freedom of action that the Government has in the assignment
of duties to a position.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Professional Institute of the Public Service of Canada v.
Public Service Staff Relations Board, [1979] 1 F.C. 92
(C.A.).
COUNSEL:
Andrew J. Raven for applicant.
Robert Cousineau and Mylène Bouzigon for
respondent.
No one appearing for Public Service Staff
Relations Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Legal Services, Treasury Board, Ottawa, for
respondent.
Public Service Staff Relations Board,
Ottawa, on its own behalf.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: As it is well known, when Parlia
ment introduced collective bargaining into the
Public Service in 1967 and provided for arbitration
as one of the two alternative dispute-resolution
processes, it imposed limits on the powers of the
tribunal which was set up to act as the arbiter.
Those limits were defined appropriately in the new
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35 (hereinafter the "Act") but they had to be
delineated through the interpretation of the words
used in the legislated provisions as practical situa
tions arose. It was to be expected that the area of
arbitrability would be subject to much controversy,
and indeed the Arbitration Tribunal in the early
days of the legislation and the Public Service Staff
Relations Board in recent years (hereinafter the
"Board") have regularly been called upon to make
rulings respecting the scope of their jurisdiction.
Yet, this Court has not had many occasions to deal
with the issue, which makes it all the more inter
esting that two applications, directly to the point,
are now before the Court for adjudication, one
bearing number 147-86, the other, number 319-86.
The two applications pertain to different factual
situations but they both raise the question of the
scope of arbitration in such a comparable way that
counsel for the applicant Union suggested that
they be argued together. In fact, the Court
expressed reluctance to hear a combined presenta
tion, but now that I am about to set out my view as
to their respective merits, I realize that there is
some advantage in dealing with the two at the
same time.
The scenario, in both cases, has of course been
the usual one. Negotiations between the Union as
bargaining agent and Treasury Board as employer
with a view to settling the terms and conditions of
a new collective agreement for members of a bar
gaining unit had proved non-productive on a
number of issues. Since the Union had, in accord
ance with the Act, chosen arbitration as the mech
anism for the resolution of disputes, it sought an
arbitral award from the Board spelling out the
proposals it suggested for inclusion in the agree
ment. The Board, however, refused to consider one
of the proposals, taking the view that it had no
jurisdiction to deal with the subject-matter
involved, whereupon an application disputing the
validity of the Board's refusal was brought before
this Court.
On their facts, however, the two cases are in no
way related to one another. Naturally two bar
gaining units were concerned: financial adminis
trators (case A-147-86) and language teachers
(case A-319-86). The rejected proposals were not
at all to the same effect since the first was to
oblige the employer to offer any overtime work to
employees who normally perform the duties
involved, while the second would have limited the
number of hours a teacher could be required to
teach in a classroom per day. And finally the
Board, which was differently constituted on each
occasion, did not rely on the same section of the
Act in the two cases: it invoked section 7 in the
case of the financial administrators and the issue
of overtime; and subsection 70(1), in the case of
the teachers and the issue of daily classroom
hours. But paradoxically it is precisely because the
cases are so distinct from one another that I felt it
would be useful to deal with them together.
We are not concerned here with any of those
limitations imposed by Parliament on the scope of
collective bargaining in the public sector in order
to protect its own prerogatives (as for instance
those established by the exclusionary provisions
found in subsection 56(2), subsection 70(3)).
There is no question that the two proposals could
be made legitimate subjects of bargaining. We are
concerned with the special limits imposed by Par
liament on the powers of arbitration tribunals in
order to protect some managerial rights considered
untouchable because of the very special situation
of the Government as employer. There are two
provisions in the Act which were clearly aimed at
defining these special limitations on arbitrability:
section 7 and subsection 70(1), the two provisions
relied on by the Board in the two rulings here in
question. They read thus:
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.
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.
Section 7 is obviously a management rights provi
sion enacted in the form of a rule of construction
and to which was given the status of a general and
basic principle designed to protect certain rights
conferred on the Treasury Board in the Financial
Administration Act, R.S.C. 1970, c. F-10. Subsec
tion 70(1), on the other hand, is clearly a substan
tive provision directed specifically to the process of
arbitration. Section 7 works negatively in the sense
that it designates borderlines by defining areas
that are not to be infringed upon, while subsection
70(1) works positively, setting out the classes of
matters open to arbitration. (The exhaustive char
acter of the enumeration contained in subsection
70(1) was confirmed by Professional Institute of
the Public Service of Canada v. Public Service
Staff Relations Board, [1979] 1 F.C. 92 (C.A.).)
It seems to me that the two provisions were
necessarily meant to play a complementary role in
determining whether a particular proposal may be
the subject of an arbitral award, one focussing on
the subject-matter of the proposal, the other on its
eventual effect on management's freedom of
action. And since one, the substantive and specific
provision of subsection 70(1), must always be con
strued in the light of the other, the interpretative
and general provision of section 7, a two-step
analysis is required. To determine that a proposal
is arbitrable, it must be established first that it
falls within one of the classes of matters set out in
subsection 70(1) and then that its effect would
leave intact the untouchable prerogatives of Gov
ernment defined in section 7.
In the first case here under review where the
proposal was concerned with overtime assign
ments, the Board declined to act because it felt
that:
[The proposed changes in the collective agreement] would
encroach on the employer's authority to assign duties to posi
tions, an authority reserved to the employer by section 7 of the
Act. If accepted, this proposal would prevent the employer
from deciding that certain tasks are to be performed by persons
occupying positions that are not in the bargaining unit .... It
would establish the notion that persons in this bargaining unit
have some proprietary claim to the performing of certain tasks.
As such, it would restrict the employer's freedom of action in
assigning work as it thought best among different groups of
persons or positions.
In the second case, where the proposal had to do
with a limitation on teaching hours per day, the
Board refused to intervene on the ground that:
... the expression "hours of work", as used in subsection 70(1),
does not include the concept of the distribution or mix of duties
that may be assigned to employees ....
My understanding of the legislation leads me to
respectfully disagree with the Board's reasoning in
both cases but nevertheless to accept its conclusion
in the second. At the first step of the analysis,
when the subject-matter of the proposals is looked
to, I have no difficulty in classifying both of them
under one of the four descriptive headings of sub
section 70(1). There is no doubt, of course, that
overtime comes within the parameters of "hours of
work", but I also do not see why the same would
not be true of a clause limiting hours of teaching. I
see nothing in the provision that supports a restric
tive understanding of what was meant to be
included in the class of matters referred to as
"hours of work", and I think it would undermine
the benefits of arbitration as a mechanism for
resolution of disputes if such a narrow construction
were to prevail. But at the second step of the
analysis, when the effect of the proposals must be
looked to and the instructions of section 7 come
into play, I definitely part with the Board when
considering the proposal respecting overtime,
since, in my view, a clause to that effect would not
infringe upon a preserved prerogative of the Gov
ernment but, when considering the other proposal
for a ceiling on hours of teaching, I can rejoin the
Board since this one would constitute, I think, a
clear infringement.
Section 7 speaks of the organization of the
Public Service and specifically of the assigning of
duties to positions within the Public Service. It
does not speak, as the Board seems to have under
stood, of the assigning of duties to persons. The
language used, particularly in the French version,'
does not support such an extension of the pre
served prerogatives, and the fact can only be seen
as being decisive when it is known that a reference
to assignment of duties to employees was made in
the text placed before Parliament but was subse
quently deleted. 2 It is to be remembered that the
appointment of employees to positions is already
regulated by the Public Service Employment Act,
R.S.C. 1970, c. P-32. Be that as it may, section 7
being clear on its face, my conclusions as to
whether it is breached by the two proposals will be
easily understood.
' Which reads:
7. Rien dans la présente loi ne doit s'interpréter comme
portant atteinte au droit ou à l'autorité que possède l'em-
ployeur de déterminer comment doit être organisée la Fonc-
tion publique, d'attribuer des fonctions aux postes et de
classer ces derniers. [Emphasis added.]
2 Section 7 of the draft bill read:
7. Nothing in this Act shall be construed to affect the
right or authority of the employer to determine the organiza
tion of' the Public Service, to group and classify positions
therein and to assign duties to employees.
Canada, House of Commons, Bill C-170, Public Service Staff
Relations Act, first reading: April 25, 1966, 1st Session, 27th
Parliament.
(Continued on next page)
It is hard to see how the fact that the Govern
ment would be obliged to offer overtime duties to
the incumbents of the corresponding positions
could in any way affect its freedom to organize the
Public Service as it sees fit or to assign duties to
the positions it has created. It may be, as the
Chairman concluded, that such a proposal "would
establish the notion that persons in this bargaining
unit have some proprietary claim to the perform
ing of certain tasks" but that would go to the
wisdom of including it in an arbitral award and
not to the power of the Board to consider it. But
coming to the proposal respecting the ceiling on
teaching hours, one's reaction ought to be quite to
the contrary. Determining the maximum number
of hours per day that the employees in certain
positions may be required to perform a particular
duty, to me, not only impedes the freedom of the
employer, but is an integral part of the assignment
of duties to positions. Only the time element is
involved but it is vital. It is indeed easy to realize
that if a determination of that type were intro
duced with respect to one of the duties attached to
a position, nothing would prevent it being extended
to each and every duty attached to it: the Govern
ment employer would obviously be left with a
seriously impaired freedom of action in the assign
ment of duties to that position, which is precisely
what Parliament was determined to prevent.
Thus, I think that the Board was wrong in
declining jurisdiction to deal with the proposal
in case A-147-86 relating to overtime but that it
was right, albeit for a reason other than the one
(Continued from previous page)
It may be noted further that an attempt was made to amend
this section to include inter alia a reference to assigning duties
to employees.
See Canada, House of Commons, Bill C-28, An Act to amend
the Public Service Staff Relations Act, first reading, March 8,
1978, 3rd Session, 30th Parliament. This Act would have
repealed section 7 of the Public Service Staff Relations Act
and substituted the following:
7. Nothing in this Act shall be construed to affect the
right or authority of the employer to determine the organiza
tion of the Public Service, to assign duties to employees and
positions, to classify positions and to suspend for a maximum
period of sixty days an employee from the performance of his
duties for lack of work because of a strike.
it advanced, in refusing to consider, in case
A-319-86, the possibility of limiting the number of
hours a teacher could be required to teach in a
classroom.
I would then deny the application in case
A-319-86 but would set aside the decision attacked
in case A-147-86 and send the matter back to the
Board for it to be considered anew.
URIE J.: I agree.
LACOMBE 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.