The Statutory Freeze of Employment Terms and Conditions in the Public Service Labour Relations Act – Case Law Update

In Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46 (April 23, 2013), the employer’s practice had been to provide union officials with full-time or part-time leave with pay for them to carry out union business. As part of the government’s deficit reduction action plan, the employer discontinued that practice and chose to conform instead to the provisions of the applicable collective agreement. The Public Service Labour Relations Board had to determine whether this change violated the statutory freeze on terms and conditions of employment found at section 107 of the Public Service Labour Relations Act, S.C. 2003, c. 22, as a notice to bargain had been filed prior to the change.

Section 107 of the Public Service Labour Relations Act provides as follows:

107. Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

(a) if the process for the resolution of a dispute is arbitration, an arbitration award is rendered; or

(b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

The employer argued that the practice of providing union officials with leave with pay was a series of individual arrangements not captured by that section of the legislation as it did not apply to employees in the bargaining unit collectively. It claimed the leave was a privilege extended to the bargaining agent, and not a term or condition of employment. The evidence established that the practice varied amongst regions, times and employees. Alternatively the employer argued that in accordance with the Financial Administration Act and under the business-as-usual/reasonable expectations test, the employer’s authority to opt out of granting this leave was carried into the freeze period.

The Board did not accept that the practice of granting union members leave with pay beyond the requirements established in the collective agreement was a series of individual arrangements, as it had been a consistent practice over a significant period of time. The Board also pointed out that the legislation did not distinguish between terms and conditions of employment that apply to every employee versus those that apply to a limited number of employees.

The Board adopted the reasoning that the employer-employee relationship should be preserved in its totality upon there being a notice to bargain, meaning that the prior pattern of the employment relationship should be maintained.

Upon applying the business-as-before principle, the Board determined that for those union members who were on full-time leave to carry out union business, there had been no business practice by the employer of rescinding or modifying leave for union business arrangements that could be carried into the freeze period. In contrast, for union representatives who required only part-time leave to carry out union business, there was evidence that management did rescind or modify the amount of leave granted occasionally. As such, the practice of rescinding or modifying the leave for these individuals could be carried into the freeze period, and termination of the leave benefits for these individuals was upheld.