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UNIONS - Members and membership - Exclusions and exemptions

Thursday, November 09, 2017 @ 8:38 AM  


Lexis Advance® Quicklaw®
Application by the WSÁNEC School Board (WSB) for judicial review to set aside a Canada Industrial Relations Board decision dismissing the WSB’s application to exclude from the all-employee bargaining unit those employees whose primary duties focused on the revitalization of the SENCOTEN language and culture and on the transmission of WSÁNEC beliefs and teachings. The WSÁNEC were indigenous people. The WSB was a First Nations School Board that provided education to First Nations children, youth and adults. The respondent, the B.C. Government and Service Employees’ Union (BCGSEU), had been certified as the bargaining agent for a bargaining unit that included nine SENCOTEN employees amongst approximately 110 employees. The BCGSEU learned that the WSB had been treating SENCOTEN employees as falling outside the bargaining unit. Shortly thereafter, the WSB sought to have the BCGSEU agree to the exclusion of the employees, but the BCGSEU declined to do so. The WSB then applied to amend the bargaining unit description to exclude the employees. Prior to applying to the Board, the WSB did not attempt to negotiate different terms and conditions of employment for the SENCOTEN employees. In applying to seek to exclude the employees, the WSB explained inclusion of the employees in the all-employee bargaining unit would have negatively impacted the constitutional rights of the WSÁNEC First Nations to control the transmission of their language and culture. In its decision, the Board said it was required to balance its overarching position that broader bargaining units protected the stability of labour relations and the fundamental rights of employees to associate and bargain collectively against the constitutional interests of the WSÁNEC First Nations. The Board held that the WSB had not established that an approach such as assessing whether a group’s unique characteristics could have been addressed through inclusion of specific provisions in the collective agreement would not have been open to address the concerns expressed regarding the Sencoten employees. The Board also noted it was open to the parties to negotiate additional provisions to address the SENCOTEN employees’ needs. As such, the Board concluded that, while the SENCOTEN employees might have had interests that diverged from those of other employees in the unit, there were no sufficiently compelling reasons to exclude them from the unit. The WSB brought an application for judicial review of the Board’s decision.

HELD: Application dismissed. In the absence of evidence the WSÁNEC First Nations would actually have lost control over the way in which the employees performed their duties, it was reasonable for the Board to have concluded the balancing exercise it was required to conduct needed to weigh in favour of maintaining the all-employee bargaining unit. The Board’s reasoning was believable, the result was reasonable and there was no basis to interfere with the decision. In addition, the WSB’s application to the Board was premature as the WSB did not have a way of knowing whether the BCGSEU would have acceded to the terms and conditions the WSB wished to have applied to the employees. Given that the WSB previously succeeded in negotiating special provisions in the collective agreement to address the WSÁNEC First Nations’ cultural needs, it was open to the Board to conclude further flexibility could have been obtained in respect of the employees, particularly in circumstances where the WSB had not even tried to bargain about obtaining such flexibility.

WSÁNEC School Board v. British Columbia, [2017] F.C.J. No. 982, Federal Court of Appeal, M.J.L. Gleason, J.D.D. Pelletier and R. Boivin JJ.A., October 24, 2017. Digest No. TLD-November62017008