Date: 20000405
Docket: A-800-99
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
- and -
HER MAJESTY IN RIGHT OF CANADA as represented by
THE STAFF OF THE NON-PUBLIC FUNDS, CANADIAN FORCES
Respondent
Heard at Ottawa, Ontario on Wednesday, April 5, 2000
Judgment delivered from the Bench at Ottawa, Ontario on Wednesday, April 5, 2000
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20000405
Docket: A-800-99
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
- and -
HER MAJESTY IN RIGHT OF CANADA as represented by
THE STAFF OF THE NON-PUBLIC FUNDS, CANADIAN FORCES
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, April 5, 2000)
NOËL J.A.
[1] This is an application for judicial review of a decision of the Public Service Staff Relations Board ("the Board"), refusing to give effect to the applicant"s request for arbitration on the basis that conciliation was the only dispute resolution process available to the parties under the Public Service Staff Relations Act ("the PSSRA")1 at the relevant time.
[2] The dispute arises because of the temporary suspension of arbitration as a dispute resolution process which was viewed as a necessary step to implement the cost restraint measures announced in the federal budget of March 6, 1996. Before turning to the facts, we will briefly review the scheme of the Act and the impact which this temporary suspension had on its workings.
The Scheme of the Act
[3] The PSSRA establishes a comprehensive scheme for the conduct of collective bargaining in the Public Service of Canada. Subject to section 62, as added by the Budget Implementation Act, 19962 and 1999,3 it provides for conciliation and arbitration as the two available processes for the resolution of collective bargaining disputes.4
[4] Upon application, the Board is required to determine the relevant group of employees that constitutes a unit appropriate for collective bargaining and to certify the bargaining agent for that bargaining unit. Following certification, a bargaining agent is required to specify which process for dispute resolution will apply in respect of a bargaining unit. That specification is effective until altered in conformity with the Act:
| 38(2) The process for resolution of a dispute specified by a bargaining agent as provided in subsection 37(1) and recorded by the Board under subsection (1) shall be the process applicable to that bargaining unit for the resolution of all disputes from the day on which any notice to bargain collectively in respect of that bargaining unit is given next following the specification of the process, and thereafter until the process is altered in accordance with section 39. ... 39(3) An alteration in the process for resolution of a dispute applicable to a bargaining unit becomes effective on the day that any notice to bargain collectively is given next following the alteration and remains in effect until the process for resolution of a dispute is again altered pursuant to subsection (2). |
38(2) Le mode de règlement des différends enregistré par la Commission conformément au paragraphe (1) vaut, jusqu'à sa modification telle que prévue par l'article 39, pour l'unité de négociation concernée à compter du jour où un avis de négocier collectivement est donné pour la première fois après le choix du mode par l'agent négociateur. [...] 39(3) La modification du mode de règlement des différends prend effet à la date du premier avis de négocier collectivement qui la suit; elle reste en vigueur pour l'unité de négociation concernée jusqu'à la prochaine modification effectuée en conformité avec le paragraphe (2). |
[5] The right to give notice to bargain collectively is governed by subsection 50(1) of the PSSRA:
| Where the Board has certified an employee organization as bargaining agent for a bargaining unit and the process for resolution of a dispute applicable to that bargaining unit has been specified as provided in subsection 37(1), the bargaining agent, on behalf of the employees in the bargaining unit, may require the employer or the employer may require the bargaining agent, by notice in writing given in accordance with subsection (2), to commence bargaining collectively, with a view to the conclusion of a collective agreement. |
Une fois l'accréditation obtenue par une organisation syndicale et le mode de règlement des différends fixé dans les conditions prévues au paragraphe 37(1), l'agent négociateur - au nom des fonctionnaires de l'unité de négociation visée - ou l'employeur peut, par avis écrit, requérir l'autre partie d'entamer des négociations collectives en vue de la conclusion d'une convention collective. |
[6] The provisions of Part III of the PSSRA, applicable to the resolution of collective bargaining disputes, become relevant depending upon the process for dispute resolution specified by a bargaining agent prior to the giving of notice to bargain. If the process for resolution of a dispute applicable to a bargaining unit is arbitration, sections 64 to 75.1 of the PSSRA are applicable. If the process for dispute resolution is conciliation, sections 76 to 90 of the PSSRA apply.
[7] Where the bargaining agent has specified arbitration, and where the parties have bargained collectively in good faith but have been unable to reach agreement, either party may, by notice in writing, request arbitration.5 Where a bargaining agent has specified conciliation and the parties have been unable to reach agreement after bargaining in good faith, either party may, by notice in writing, request conciliation of the dispute.6
[8] Section 62 of the PSSRA, effective June 20, 1996, suspended arbitration as a dispute resolution process in the following terms.7
| 62. (1) The operation of sections 64 to 75.1 is suspended during the period of three years following the coming into force of this section. (2) Where the operation of sections 64 to 75.1 is suspended pursuant to subsection (1), section 43 of the Interpretation Act applies, with such modifications as the circumstances require, as if the suspended provisions had been repealed. (3) During the period in which the operation of sections 64 to 75.1 is suspended, this Act shall be read, with such modifications as the circumstances require, without any references to arbitration as a process for the resolution of a dispute and any similar references to arbitration, except in respect of existing arbitral awards. |
62(1) Les articles 64 à 75.1 sont inopérants pendant les trois ans qui suivent l"entrée en vigueur du présent article. (2) L"article 43 de la Loi d"interprétation s"applique, avec les adaptations nécessaires, pendant la période où les articles 64 à 75.1 sont inopérants comme si ceux-ci avaient été abrogés. (3) Pendant la période où les articles 64 à 75.1 sont inopérants, la présente loi s"interprète indépendamment des mentions de l"arbitrage en tant que mode de règlement des différends sauf en ce qui a trait aux décisions arbitrales existantes. |
[9] Effective June 17, 1999, subsection 62(1) of the PSSRA was amended and subsection 62(4) added as follows:8
| 62. (1) The operation of sections 64 to 75.1 is suspended (a) in the case of any portion of the public service of Canada specified in Part I of Schedule I or any separate employer designated under subsection (4), with respect to a dispute in relation to collective bargaining commenced by notice to bargain collectively given during the period beginning on the day on which this section, as it read immediately before the coming into force of section 19 of the Budget Implementation Act 1999, came into force and ending on June 20, 2001; and (b) in the case of any other separate employer, during the period beginning on the day on which this section, as it read immediately before the coming into force of section 19 of the Budget Implementation Act, 1999, came into force and ending on June 20, 1999. ... 62(4) The Governor in Council may, by order, designate any separate employer for the purposes of paragraph (1)(a). |
62(1) Les articles 64 à 75.1 sont inopérants: a) s"agissant d"un secteur de l"administration publique fédérale spécifié à la partie I de l"annexe I ou d"un employeur distinct désigné au titre du paragraphe (4), à l"égard des différends survenant dans le cadre de négociations collectives qui font suite à un avis de négocier collectivement donné au cours de la période commençant à la date d"entrée en vigueur du présent article, dans sa version antérieure à la date d"entrée en vigueur de l"article 19 de la Loi d"exécution du budget de 1999, et se terminant le 20 juin 2001; b) s"agissant de tout autre employeur distinct, au cours de la période commençant à la date d"entré en vigueur du présent article, dans sa version antérieure à la date d"entrée en vigueur de l"article 19 de cette loi, et se terminant le 20 juin 1999. [...] 62(4) Le gouverneur en conseil peut, par décret, désigner tout employeur distinct pour l"application de l"alinéa (1)a). |
The Facts in Issue
[10] On June 30, 1997, the Board certified the applicant as the bargaining agent for a bargaining unit composed of all employees of the Staff of the Non-Public Funds, Canadian Forces (SNPF) in the Administrative Support Category and the Operational Category employed at the Canadian Forces Base, Petawawa. The respondent is a separate employer listed in Part II of Schedule I of the PSSRA.
[11] Pursuant to subsection 37(1) of the PSSRA, the applicant purported to select arbitration as the applicable dispute resolution process for that bargaining unit.
[12] Notice to bargain collectively was given for this bargaining unit under subsection 50(1) of the PSSRA on December 24, 1997. The parties met and negotiated on March 5, April 15-16 and May 20-22, 1998. While significant progress was made, certain contentious issues could not be resolved. The parties thereafter sought the assistance of a conciliator from December 14-16, 1998.
[13] The applicant filed a notice of request for arbitration on July 22, 1999. The respondent objected on the basis that the notice to bargain was given during a period when arbitration as a dispute resolution process was suspended and that such a late change in the course of the negotiations would unduly prejudice its position.
[14] The applicant responded that the application of sections 64 and 75.1 of the PSSRA was intended to resume on June 20, 1999, as though they had never been repealed. Paragraph 62(1)(b) of the PSSRA, and the incorporation of section 43 of the Interpretation Act, indicated Parliament"s intention that the process for dispute resolution applicable to the parties would resume when the period of suspension ended in accordance with the bargaining agent"s selection. Despite the suspension, the applicant argued that its selection of arbitration as the process for dispute resolution was validly made, and that its right to invoke this process was "revived" when the suspension was lifted.
Decision of the Board
[15] The Board noted that there were two different ways of dealing with repealed statutory provisions. Under the common law, the repealed provision was treated as never having existed. The enactment of subsection 43(c) of the Interpretation Act had, however, perpetuated certain rights and obligations arising under repealed legislation.9
[16] Here, the scheme of the Act established that the dispute resolution process in effect when the notice to bargain was given applied to that round of bargaining. The parties had a tangible right and a corresponding obligation to resolve their dispute by conciliation. Moreover, this right had been sufficiently exercised to have accrued during the suspension period.
[17] After considering the effect of subsection 43(c) of the Interpretation Act and the principles developed thereunder the Board denied the applicant"s request for arbitration in the following terms:10
| Applying these principles to the facts of this case, I am satisfied that, when notice to bargain was given on December 24, 1997, which was during the period when arbitration was suspended as a dispute resolution process for the SNPF, the parties had a tangible legal right to refer their dispute to conciliation if they were unable to resolve it themselves. Indeed, a review of the scheme of the PSSRA establishes that Parliament intended that the dispute resolution process which is in effect, at the time notice to bargain is given, is the one applicable to the parties for that round of bargaining. |
| Prior to the repeal of the suspension of arbitration as a dispute resolution process, the parties met on several occasions to discuss their differences. I believe this meets the second criterion mentioned by Vancise J.A. Accordingly, during this round of bargaining the parties are obliged to proceed under the repealed provisions of subsection 62(1) of the PSSRA and the only dispute resolution process available to them is the referral thereof to conciliation. |
Analysis and Decision
[18] The parties on judicial review essentially reiterate the arguments which they advanced before the Board. Additionally, they have made submissions as to the appropriate standard of review. As we have come to the conclusion that the Board correctly held that arbitration was not available as a resolution process in this instance, there is no need to opine on the applicable standard of review.
[19] The collective agreement between the respondent and its employees was to expire on February 28, 1998. In conformity with subsection 50(2)(b), notice to bargain collectively was given on December 24, 1997, that is within three months preceding the expiration of the collective agreement. The Act is clear that the applicable process for resolution is the one selected by the bargaining agent and which is inscribed in the records of the Board at the time when the notice to bargain is given.11
[20] In this instance, however, the Act had to be read on the basis that conciliation was the only available process for resolution regardless of the process selected by the applicant.12 Specifically, subsection 38(2) had to be read on the basis that conciliation was "the process applicable ... for the resolution of all disputes ... from the day on which notice to bargain collectively ... [was] given ... until altered pursuant to section 39."
[21] Pursuant to section 39 of the Act and regulations made thereunder,13 a dispute resolution process may only be altered during the period when the notice to bargain collectively may be given, that is, during the statutory period immediately preceding the expiration of the collective agreement. The result is that the resolution process that is applicable when the notice to bargain is given governs throughout the negotiation period and, indeed, until the convention signed as a result of this process expires and comes up for renewal.
[22] This is what brought the Board to state in its reasons that: "... the scheme of the [Act] establishes that Parliament intended that the dispute resolution process which is in effect, at the time the notice to bargain was given, is the one applicable to the parties for that round of bargaining.".14 The policy reasons behind this seem obvious. The integrity of the bargaining process requires that the applicable rules be known from the beginning and that they remain applicable throughout.
[23] The position of the applicant implies that, upon enacting the Budget Implementation Act, 1996, Parliament would have lost sight of the scheme of the Act and indeed allowed what was then the only available process for resolution to be modified in mid course, that is at any time within the same round of bargaining following the suspension. In our view, such a result would have to flow from the clearest of language in order to prevail.
[24] Not only is such language absent, but the relevant provisions clearly support the view that Parliament maintained the integrity of the bargaining process when it suspended arbitration as a dispute resolution process.
[25] The applicant"s entire case rests on the proposition that it could validly select arbitration as a process for resolution despite the fact that at the relevant time this process was not available under the Act.15 Section 62 as it then read provided without any ambiguity that the part of the Act governing arbitration was suspended and more importantly for our purposes that the Act had to be read "..., with such modifications as the circumstances require, without any reference to arbitration as a process for the resolution of a dispute and any similar references to arbitration, ...".
[26] It necessarily follows, in our view, that the only dispute resolution process which could be read into the definition in section 2 and indeed throughout the Act was conciliation and hence conciliation was the only process available to the applicant when the notice to bargain was given. That arbitration was abrogated for a limited duration and that it was reinstated as planned after three years does not alter the fact that arbitration was not a process open for selection when the applicant purported to opt for this process on certification.
[27] The submission by the applicant that it had nevertheless made a selection capable of being "revived" upon arbitration being reenacted as a dispute resolution process not only runs counter to the statutory language, but also ignores the scheme of the Act which, as we have seen, is framed so as to ensure the integrity of the applicable resolution process throughout the course of a round of bargaining. In our view, the Board came to the correct conclusion when it held that the only dispute resolution process available to the parties is conciliation.
[28] Mr. Raven was no doubt right to point out that the elimination of references to arbitration during the period of suspension would produce some inconvenient and unforseen consequences in the context of the provisions of the PSSRA relevant to this application. For example, if the applicant had been certified as the bargaining agent for this unit in May 1996, rather than in June 1997, and had selected arbitration under subsection 37(1), it could have called for an arbitration in July 1999.
[29] On the other hand, there are equally unsatisfying consequences of adopting Mr. Raven"s view. For example, if the applicant had reached an impasse in collective bargaining and given notice to the Board in May 1999, it would have been entitled only to conciliation. However, because the issues could not be resolved earlier, arbitration would have been available when requested in July 1999.
[30] Accordingly, we are not satisfied that, on the facts of this case, eliminating references to arbitration from the relevant provisions, as required by subsection 62(3), produces arbitrary or manifestly unjust consequences in the context of the PSSRA.
[31] The application for judicial review will be dismissed with costs.
"Marc Noël"
J.A.
__________________2Budget Implementation Act, 1996, S.C. 1996, c.18.
3Budget Implementation Act, 1999, S.C. 1999, c.26.
4See PSSRA, section 2 which defines "process for resolution of a dispute" as arbitration or conciliation.
5PSSRA, section 60(a) and subsection 64(1).
6PSSRA, section 60(b), subsections 76(1) and (2).
7PSSRA, section 62, as added by the Budget Implementation Act, 1996, section 20.
8PSSRA, section 62, as amended by the Budget Implementation Act, 1999, section 19.
| 43. Where an enactment is repealed in whole or in part, the repeal does not...(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, | 43. L'abrogation, en tout ou en partie, n'a pas pour conséquence :[...]c) de porter atteinte aux droits ou avantages acquis, aux obligations contractées ou aux responsabilités encourues sous le régime du texte abrogé; |
10Decision, Applicant"s Record, vol. I, tab 3 at p. 17.
12PSSRA, section 62, as added by the Budget Implementation Act, 1996, section 20.
13See sections 61 and 62 of the PSSRA Regulations and Rules of Procedure, 1993, SOR/93-348.
14Reasons for decision, Application Record at p. 17.
15There is no evidence as to exactly when this selection was made but assuming that the prescriptions of the Act were followed, it would necessarily have been after the suspension took effect on June 20, 1996, since the applicant was certified as a bargaining agent one year thereafter, and section 61 of the PSSRA Regulations and Procedure provides:
| 61. Where the Board certifies an employee organization as the bargaining agent for a bargaining unit, the bargaining agent shall specify the process for resolution of any dispute to which it may be a party, by filing the specification, in duplicate, with the Secretary. | 61. Lorsque la Commission accrédite une organisation syndicale à titre d"agent négociateur d"une unité de négociation, l"agent négociateur précise son choix de mode de règlement des différends en déposant un avis à cet effet, en double exemplaire, auprès du secrétaire. |