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COLLECTIVE BARGAINING - Negotiation - Public service

Wednesday, June 02, 2021 @ 6:06 AM  


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Appeal by the Minister of Finance from an order of mandamus granted in a judicial review proceeding. The government and the Manitoba Government and General Employees’ Union were parties to a collective agreement that expired in March 2019. The Union gave notice of its intention to negotiate a revision and renewal of the agreement, identifying wages as the key bargaining issue. At the time of negotiations, the Public Services Sustainability Act imposed a four-year period in which wage increases and additional remuneration were subject to statutory limits. As a result, the Union asked the government to explore scenarios where it would offer more than the limits set out in the legislation. The government responded that the issue could be explored through negotiations and bargaining of non-monetary items. The Union wrote to the Minister and requested appointment of an arbitration board pursuant to s. 48(1) of the Civil Service Act (CSA) on the basis an agreement could not be reached. The Minister declined the request on the basis that it was premature at the present stage of bargaining. The Union submitted a second request and the Minister reiterated that the request was premature. The Union sought judicial review. The reviewing court granted an order of mandamus compelling the Minister to appoint the arbitration board. The court found that the Union satisfied the statutory preconditions for appointment and the Minister thus lacked jurisdiction to refuse the request. The Minister appealed.

HELD: Appeal dismissed. The Minister’s decision was reviewable on a standard of reasonableness. The refusal decision was unreasonable for two reasons. First, the Minister gave insufficient reasons and provided no rationale for a conclusory decision. No explanation was provided for the interpretation of s. 48(1) of the CSA to require presence of an objective impasse in bargaining. The Minister’s interpretation therefore lacked justification, intelligibility and transparency. Second, the Minister’s interpretation was unreasonable in light of the text, context and purpose of s. 48(1), and was contrary to the only reasonable interpretation considering the legal and factual constraints related to the parties’ bargaining positions and the lack of discretion afforded by the provision. The absence of any other reasonable interpretation permitted the Court to confirm the mandamus order requiring the Minister to appoint an arbitration board.

Manitoba Government and General Employees' Union v. Manitoba (Minister of Finance), [2021] M.J. No. 99, Manitoba Court of Appeal, F.M. Steel, D.M. Cameron and K.I. Simonsen JJ.A., April 13, 2021. Digest No. TLD-May312021006