Friday, 27 September 2013

Procedural Fairness in Public Sector Bargaining

Public Service Alliance of Canada v. Canada (Attorney General), 2013 FC 91 is an illuminating case on many issues, especially procedural fairness. 

At issue was a labour relations dispute between the federal government and one of its agencies. The bone of contention was a direction by the Minister for Canadian Heritage that a group of workers at the Canada Border Services Agency should hold a vote on the last offer made to them. Section 183 of the Public Service Labour Relations Act allows the Minister to order that a vote be taken where he considers it would be in the public interest to do so.

The direction in the present case was issued without consideration of a report concluded by an expert body which had previously been appointed under the Act. Moreover, it was issued without notice to the applicant. Gleason J.'s ultimate conclusion was that the direction was unfair.
Could the applicant really require the Minister to give it a hearing before taking a discretionary decision to order a vote?

Gleason J. held that it could. Her decision underscores the very low threshold for triggering the requirements to give notice to affected parties and to afford them an opportunity to make submissions:
[57]           On the balance, when all the factors are considered together, I believe the decision at issue does fall at the lower end of the procedural fairness spectrum. That said, however, it does not follow that the Alliance was not entitled to notice or to the opportunity to make submissions to the Minister or to have those submissions considered before the Minister decided to order the vote as the respondent argues. Rather, even where minimal procedural fairness rights are to be afforded to a party, the party must still be given adequate notice of the issue and be afforded an opportunity to make written submissions on it..
[60]           Thus, even in cases where only minimal procedural fairness rights are required, the right to notice and the opportunity to be heard still exist. The Alliance, therefore, was entitled to notice of the Employer’s application and to a meaningful opportunity to respond to it. In the circumstances of this case, this would include: the right to be informed of the reasons the Employer invoked in support of its request for a ministerial-ordered vote; the opportunity to make submissions in writing on the issue; and the right to have them considered by the Minister in making the decision as to whether a vote of the BSOs under section 183 of the PSLRA is in the public interest.
Instrumentally, the final decision would doubtless have been better if notice had been given. The applicant could have drawn the Minister's attention to the expert report which had been completed but which was not before him at the time he made his decision. Not only would notice have served the interests of the applicant, but it equally would have served the interests of good administration:
[69]           Here, the Minister’s decision is a discretionary one, and, as discussed, might well have been influenced by the contents of the PIC report and by the submissions the Alliance says it would have made. Thus, one cannot say that the decision would have been the same if the Alliance had been afforded the opportunity to make submissions. The respondent’s request for dismissal of this application, therefore, cannot be sustained and a remedy will be awarded in respect of the breach of procedural fairness.
Rule of law considerations compel affording individuals (and legal persons) the opportunity to be notified of decisions liable to affect their interests. Good administration considerations often point in the same direction. Giving notice and receiving submissions can be time consuming and costly, but may lead to better decisions. Procedural fairness may ultimately serve the interests of all.

In the event, however, the Minister did have preliminary indications that the report would not resolve the dispute between the parties. Thus, though the decision to issue the direction might have been different had the applicant been able to make submissions, it was not substantively unreasonable (see paras. 78-81). 

It is worth noting two preliminary arguments that were given short shrift by Gleason J. The first argument was that the applicant did not have standing to challenge the direction, on the basis that only the workers were affected by it. This was a rather ambitious argument. As Gleason J. explained, the applicant was the certified bargaining agent for the group of workers in question:
[39]           More fundamentally, though, the respondent’s argument misconceives the collective bargaining process and the nature of the interests at play in a case such as this. Under the PSLRA (and all labour legislation in Canada), an employer cannot negotiate directly with employees and is instead bound to bargain with their bargaining agent. And, provided it engages in good faith bargaining, a trade union’s bargaining committee possess the right to accept or reject employer proposals based on its assessment of the best interests of the members of the bargaining unit. That right, however, must be exercised prudently, and the legislation in various jurisdictions provides different mechanisms to address miscalculations made by union bargaining committees. In this regard, a strike vote is typically required to provide a union with a strike mandate, which an imprudent bargaining committee may not obtain; a union may be decertified if employees become so unhappy they wish to rid themselves of their bargaining agent, and, in many jurisdictions, the employer may seek to have its final offer put to a vote among employees, as the Employer has done here. Where a vote is ordered and the employees vote in favour of accepting the employer offer that the bargaining committee rejected, the credibility of the trade union will be undercut. Thus, the Alliance is fundamentally interested in whether a vote is conducted on the Employer’s final offer as a vote to accept the offer would likely undermine its bargaining strength and position with the BSOs.
The second argument -- that the decision was non-justiciable -- fared little better:
[50]           What is at issue here is a decision made by a minister of the federal government to order a vote to settle the terms of a collective agreement to which the government, itself (through Treasury Board), is a party. The issues at play involve an alleged unreasonable exercise of ministerial discretion, violation of procedural fairness and bias. These issues are not beyond the institutional competence of a court, are legal in nature and are not purely political. They are accordingly not so policy-laden or complex that they should be immune from review, and the respondent has cited no authority from a labour relations context to suggest that a decision like that of the Minister in this case may not be the subject of judicial review. Indeed, were this the case, one party to the collective agreement – the government – could shield its actions from being questioned, which would run counter to the entire scheme for collective bargaining in the public service established by the PSLRA. The PSLRA seeks to balance the rights of the employer and unions who represent public servants and affords both standing in proceedings before the PSLRB and a PIC, when collective bargaining matters are the subject of inquiry. It stands to reason, in my view, that similar status to raise issues should be recognised in judicial review proceedings involving a vote under section 183 of the PSLRA.
On these two points, Gleason J.'s conclusions are surely unimpeachable. Exercising a statutory power to bring collective bargaining to an end (or at least, to an interregnum) must surely be justiciable at the instance of the trade union in question.

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