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UNFAIR LABOUR PRACTICES - By employer - Denial of access - Public service

Thursday, November 02, 2017 @ 8:37 AM  

Lexis Advance® Quicklaw®
Application by the Attorney General of Canada for judicial review of a decision by the Public Service Labour Relations and Employment Board (Board), allowing a complaint by the Public Service Alliance of Canada (PSAC) against the employer, the Treasury Board of Canada. PSAC claimed that the employer committed an unfair labour practice by interfering with the administration of an employee organization and the representation of employees by denying PSAC’s requests to conduct walkthroughs and on-site meetings with its members at three federal government workplaces. Directors from each facility gave evidence at the Board hearing about the reasons for the denials. The Department of National Defence had a policy barring worksite access to bargaining agents for collective bargaining meetings. Health Canada asserted that access would be disruptive, while Veterans Affairs refused access because the time requested for the walkthrough was excessive and because employees discussed sensitive information at work. The Board ruled that the denial of access constituted an unfair labour practice and ordered the Treasury Board to cease denying requests for access in the absence of compelling and justifiable business reasons. The Board concluded that site visits would be more beneficial and preferable to other means of communication between PSAC and its members.

HELD: Application allowed. The question was not whether access would facilitate PSAC’s relationship with its members, but rather whether access was necessary to ensure that PSAC was on an equal footing with the employer during collective bargaining, all in the context of a mature bargaining relationship in which the parties had already negotiated a clause with respect to union access to employer property for union business. Parliament had recognized the Treasury Board's right to control and manage its workplace and the employer's discretion in this respect could only be restricted by statute, or by a provision of the collective agreement. The Board inappropriately placed an onus on the employer to demonstrate a compelling business reason for denying the requests, a test for which there was no precedent in the relevant jurisprudence in respect of paragraph 186(1)(a) of the Public Service Labour Relations Act and the federal public service. The Board’s decision also effectively rendered Article 12 "Use of Employer Facilities" of the collective agreement moot. That article, as negotiated by the parties, was a comprehensive and detailed description of the circumstances under which the union could use the employer's facilities. Accordingly, the matter was remitted to a different member of the Board for redetermination.

Public Service Alliance of Canada v. Treasury Board, [2017] F.C.J. No. 959, Federal Court of Appeal, J.D.D. Pelletier, D.J. Rennie and Y. de Montigny JJ.A., October 16, 2017. Digest No. TLD-October302017008