Date: 20050422
Docket: A-84-04 (A-85-04, A-242-04)
A-473-04
A-65-05
A-99-05
Citation: 2005 FCA 146
Present: ROTHSTEIN J.A.
Docket A-84-04
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
Docket A-473-04
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADA INDUSTRIAL RELATIONS BOARD,
WARREN EDMONDSON, AND TELUS COMMUNICATIONS INC.
Respondents
Docket A-65-05
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADA INDUSTRIAL RELATIONS BOARD and
TELUS COMMUNICATIONS INC.
Respondents
Docket A-99-05
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
Heard by teleconference from Halifax, Nova Scotia, on April 22, 2005.
Order delivered orally by teleconference from Halifax, Nova Scotia, on April 22, 2005.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20050422
Docket: A-84-04 (A-85-04, A-242-04)
A-473-04
A-65-05
A-99-05
Citation: 2005 FCA 146
Present: ROTHSTEIN J.A.
Docket A-84-04
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
Docket A-473-04
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADA INDUSTRIAL RELATIONS BOARD,
WARREN EDMONDSON, AND TELUS COMMUNICATIONS INC.
Respondents
Docket A-65-05
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADA INDUSTRIAL RELATIONS BOARD and
TELUS COMMUNICATIONS INC.
Respondents
Docket A-99-05
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
REASONS FOR ORDER
(Delivered orally by teleconference from Halifax, Nova Scotia, on April 22, 2005)
[1] This is a second application for a stay of Canada Industrial Relations Board (the "Board") reconsideration orders that annulled a prior order of the Board requiring Telus to offer the Telecommunications Workers Union (the "TWU") binding arbitration. The first application for a stay was dismissed because irreparable harm was not found. However, the dismissal was without prejudice to the right of the TWU to bring a future stay application should it consider circumstances to have changed so as to render irreparable harm imminent. That is the basis for TWU's second stay application today.
[2] On April 18, 2005, Telus issued a first notice of lockout to take effect April 25, 2005, pursuant to subsection 87.2(2) of the Canada Labour Code, R.S. 1985, c. L-2. Under that notice of lockout, Telus proposed to take unilateral steps with respect to certain labour relations matters. They involve suspension of grievance and arbitration activities under various collective agreements, suspension of the operation of certain committees, suspension of accumulated time off, elimination of payment for the first day of absence for sickness, deferral of wage progression increases and deferral of increases of vacation entitlements.
[3] Telus says that the steps in its lockout notice have been carefully tailored and that it is not a general lockout notice. The lockout notice also provides that the TWU may apply to Telus for relief on behalf of any specific employee who believes he or she will suffer irreparable harm as a result of the measures in the lockout notice.
[4] TWU says irreparable harm will result from the lockout. In particular, it is concerned that without notice, further steps may be taken by Telus that will constitute irreparable harm. It refers to the possible layoff of approximately five hundred employees whose jobs TWU fears will be contracted out by Telus.
[5] I have carefully considered the arguments made and have not been persuaded that irreparable harm has been made out. The steps in the lockout notice are all suspensions or deferrals. Should the judicial review in this matter be successful, these steps will have to be reversed. Those steps pertaining to compensation are compensable in damages. Although the grievance procedures under the collective agreements have been suspended, there are grievance rights under the Canada Labour Code, although they are only with respect to dismissal or disciplinary matters.
[6] I do not rule out that there may be hardship to employees. However, at this point, I have no evidence of such hardship. Whether hardship can be adequately addressed voluntarily by Telus has yet to be determined as no cases of hardship have yet emerged.
[7] The issue of layoffs at this point is speculative. However the evidence is, that should Telus decide to layoff and contract out, it will notify the TWU in accordance with the collective agreements.
[8] TWU's concern that other steps may be taken by Telus without notice is speculative. In practical terms, I would think some notice would have to be given and there would be time to return to the Court to consider whether the further steps constituted irreparable harm to the TWU or its members. But if there is no notice given, it will still be open to the TWU to contact the Court on an urgent basis and the Court will deal with any further application without delay.
[9] TWU says that if the lockout is not enjoined, it will lose the support of its membership. However, the evidence would suggest that TWU does, at this point, have the support of its membership. In 2004, it received an eighty-six percent strike vote from its members. The evidence indicates that these have been difficult negotiations between Telus and the TWU and that, so far, TWU continues with the support of its members.
[10] Not having found irreparable harm, the application for stay is dismissed without prejudice to a further application on short notice should TWU consider it necessary.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING OF AN ORAL MOTION FOR A STAY BY THE APPLICANT TELECOMMUNICATIONS WORKERS UNION
DOCKET: A-84-04
STYLE OF CAUSE: TELUS COMMUNICATIONS INC. Applicant
and
TELECOMMUNICATIONS WORKERS UNION Respondent
PLACE OF HEARING: Teleconference from Halifax, Nova Scotia
DATE OF HEARING: April 22, 2005
REASONS FOR ORDER
GIVEN ORALLY BY
TELECONFERENCE BY: Rothstein J.A.
APPEARANCES:
|
Morley D. Shortt, Q.C. Ms. Patricia A. Dumaresq |
FOR THE APPLICANT Telecommunications Workers Union |
|
Mr. Brian Burkett Mr. Brad Elberg |
FOR THE RESPONDENT Telus Communications Inc. |
SOLICITORS OF RECORD:
|
Vancouver, B.C. |
FOR THE APPLICANT Telecommunications Workers Union |
|
Toronto, Ontario |
FOR THE RESPONDENT Telus Communications Inc. |
|
Paliare Roland Rosenberg Rothstein LLP Toronto, Ontario |
FOR THE RESPONDENT Canada Industrial Relations Board |