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Case Comment: Transport Canada Employees Reclassified
Published in the January 2010 issue of Transportation Notes - View Article
On January 14, 2010, the Supreme Court of Canada declined leave to appeal in the case of Public Service Alliance of Canada v. Canadian Federal Pilots Association and the Attorney General of Canada. The Federal Court of Appeal below considered a judicial review application from a decision of the Public Service Labour Relations Board (“PSLRB”) to allocate three positions in the federal public service to the bargaining unit comprising the Aircraft Operations Group (“AO”). This application was brought by the Canadian Federal Pilots Association (“CFPA”). The three reclassified positions were within Transport Canada: Manager of Civil Aviation Contingency Operations, Superintendent of Enforcement Investigations and Superintendent of Aerodrome Safety.
The controversy stemmed from the fact that the employer had amended the job description of these positions to remove any reference to flying an aircraft. Prior to this amendment, 10% of the duties in these positions included flying an aircraft, which directly implied that piloting qualifications were mandatory for incumbents.
The definition of the AO bargaining unit includes an explicit exclusion for “positions in which experience as an aircraft pilot and a valid pilot’s license are not mandatory.”
Prior to the amendment made by the employer, the positions were included in the AO bargaining unit.
Consequently to the employer’s amendment, however, these positions were reclassified out of the AO bargaining unit, and into the Program and Administrative Services occupational group and the Technical Services occupational group.
The CFPA, however, applied to the PSLRB to have the positions moved back into the AO unit, and the PSLRB granted the application.
The applicants for judicial review, the Public Service Alliance of Canada and the Attorney General, argued that, in granting the application, the PSLRB had exceeded its jurisdiction. In particular, the applicants for judicial review argued that the Board was not authorized to allocate an employee to a bargaining unit comprising an occupational group from which the employee was specifically excluded. The applicants argued that neither the governing legislation, the Public Service Labour Relations Act (“PSLRA”), nor general principles of the federal labour relations scheme allowed the Board to do so. The applicants for judicial review argued that bargaining units should be co-extensive with occupational groups created by the employer, save in exceptional circumstances.
The majority decision of the Federal Court of Appeal upheld the finding of the PSLRB. Justice Pelletier dissented. The judgment of the Court illustrates a number of important points as to the Court’s approach to reviewing decisions of federal tribunals, which will include not only the PSLRB, but also other tribunals whose decisions are crucial to the transportation sector such as the Canadian Transportation Agency.
Both the majority and the dissenting decision focused primarily on the legislative scheme set out by the PSLRA and the Board’s role as defined by that scheme. The relevant sections of that scheme for the purposes of the case were as follows.
“In order to establish that the Board exceeded its jurisdiction by misinterpreting a provision in its enabling statute, ... an applicant must demonstrate that the Board’s decision was unreasonable.”
The initial application was made before the Board under section 58 of the PSLRA. This section allows an application to be made by an employer or employee in order to have the Board “determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining or is included in another unit.”
Other provisions of the PSLRA allow the Board to consider an initial classification of employees into a bargaining unit, or a re-classification. These are subject to certain criteria, and particularly co-extensiveness between a bargaining unit and an employer’s classification. Section 57 of the PSLRA requires the Board on an application for certification to determine “the ground of employees that constitutes a unit appropriate for collective bargaining.” In doing so, the Board “must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer” and “must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit.” Similar criteria apply where the Board is called upon the review the structure of one or more bargaining units under section 70 of the PSLRA.
In this case, the Board was not considering an initial certification, nor reviewing the structure of the bargaining unit. The Board found, however, that the positions should be included in the AO bargaining unit as requested by the pilots’ union, essentially because the principal duties of the positions in dispute were similar to those of the AO occupational group. It was clear however that the elimination of a requirement of flying (and hence holding a pilot’s license) by the employer from the description of these positions clashed with the description of the AO bargaining unit excluding positions for which a pilot’s license was not mandatory.
In reviewing this decision, the majority first considered at some length the issue of the standard of review. As provided by the PSLRA and the Federal Courts Act, a review of a Board’s decision is available only if the Board committed a jurisdictional error. In this case, the alleged jurisdictional error was whether the Board exceeded the jurisdiction that it is provided by section 58 of the PSLRA. The further question was whether the only standard of review available for such a jurisdictional error was correctness.
The applicants argued that the only standard available was correctness. The majority of the Court disagreed, and held that a standard of reasonableness applied to the Board interpreting its own enabling legislation. The Court was prepared to accept that both an incorrect and an unreasonable interpretation of legislation would lead to the conclusion that the Board exceeded its jurisdiction. However, the Court was firm in the view that correctness is not the only standard available when an administrative tribunal interprets legislation, particularly where the tribunal applies its expertise to the interpretation of its enabling legislation. The majority categorically rejected what it viewed as invoking “the ghost of jurisdiction past” whereby any interpretation of legislation and the powers granted by it to a tribunal was viewed as a “jurisdictional issue” and considered coextensive with a correctness standard. The “only qualification” added by the majority is that it must first be found that a tribunal has the legal authority to interpret and to apply the disputed provision of its enabling legislation. However, the majority pointed out that an administrative tribunal performing an adjudicative function normally does have “explicit or implied authority to decide all questions of law, including the interpretation of its enabling statute, necessary for disposing of the matter before it.”
“Whether the Board is absolutely bound by a specific exclusion from an occupational classification when making decisions under section 58 is no more a ‘jurisdictional issue’ than the question in dispute in Dunsmuir, namely, whether the adjudicator could inquire into an employer’s reason for an employee’s dismissal with notice or pay in lieu … Like the question in Dunsmuir, the question that the Board had to decide in the course of determining this section 58 application was simply one of the interpretation of its home statute and, as such, presumptively reviewable for unreasonableness.”
On the facts of this case, the majority found that a reasonableness standard applied, insofar as the Board’s interpretation of section 58 fell squarely within its entitlement to interpret its “home” statute, and did not raise a question of central importance to the legal system that was outside of its area of expertise. This is distinct from circumstances where, for instance, a tribunal is interpreting its jurisdiction vis-à-vis another tribunal. The majority was persuaded that the role of the Board, under the PSLRA was to act as a facilitator in the resolution of labour disputes in an expeditious, inexpensive and informal manner. Occupational classifications and their relationship to bargaining units under this statutory scheme were within the Board’s labour relations expertise.
The majority held that, in order to establish that the Board’s decision was unreasonable, it was necessary to show that the Board should have “read in” the requirements of sections 57 and 70 of the PSLRA, to the authority conferred to the Board under section 58. The majority disagreed that this was the only reasonable interpretation of the legislation. The majority held that the purpose of section 58 could be seen as precisely not invoking the same kind of comprehensive review as required by sections 57 and 70. Further, should any issues regarding classification arise, a separate application could be brought under section 70.
The majority further found that, not only was the outcome a reasonable one, but also that the Board’s decision provided a transparent and intelligible justification for this outcome. In particular, the Board had adverted to the issue of the specific exclusion, but held that it did not consider it determinative. Furthermore, the majority approved of the Board’s reasoning that both the inclusive elements and exclusive elements of a bargaining unit definition must be considered, insofar as it was reasonable to assign a position to the bargaining unit comprising an occupational group whose principal duties were most similar to or a “better fit” with those of the disputed position. Finally, the majority approved of the fact that the Board noted the absence of evidence that the inclusion of these positions in the AO bargaining unit would not provide satisfactory representation. The Court endorsed this conclusion insofar as it noted that the rationale for making bargaining units co-extensive with occupational groups was to ensure that employees employed in the same occupational group should not be making different rates of pay. Presumably, should that issue arise in this case, a further application for reclassification could be made under section 70.
Pelletier J.A. in dissent accepted the standard of review analysis of the majority, but found that the Board’s decision was unreasonable. Pelletier J.A. held that exclusions could not be overlooked by the Board under section 58 of the PSLRA and that it was the role of the Board to accept bargaining units as defined when acting under section 58. While the Board is empowered to oversee the proper composition of bargaining units, it could only exercise that duty under sections 57 or 70, and not under section 58. It was unreasonable for the Board to ignore formal exclusions in favour of its own functional assessment.
Public Service Alliance of Canada v. Canadian Federal Pilots Association and Attorney General of Canada, 2009 FCA 223