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A-554-78
The Queen (Applicant)
v.
J. Beaulieu et al. (Respondents)
and
Canadian Union of Postal Workers and Public Service Staff Relations Board (Mis -en-cause)
Court of Appeal, Jackett C.J., Le Dain J. and Hyde D.J.—Montreal, February 22; Ottawa, March 14, 1979.
Judicial review Public Service Vacancy in post office necessitating the working of extra hours Employer hiring casuals rather than giving overtime employment to regular employees Grievances by regular employees Adjudicator finding "high mail volume" situation requiring overtime for regular employees Provisions of collective agreement violated Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to set aside a decision by an Adjudicator under the Public Service Staff Relations Act. A vacancy occurred at a post office and because no arrangements were made to fill the vacancy owing to its contingent nature, persons from outside the service were employed for short periods. Respondents' grievances were that on certain days during those periods they were entitled, according to the collec tive agreement, to have been offered the work and had not been offered it. The Adjudicator found that the vacancy created a situation of "high mail volumes" that necessitated the working of extra hours within the meaning of the collective agreement, and ruled that the respondents were entitled to relief because of the employer's breach of the collective agreement in not offer ing them the opportunity to work overtime. Applicant attacks that finding.
Held, the application is denied. The decision not to fill the vacancy was a management decision that apparently resulted in there being less staff during the vacancy than was sufficient for predictable work loads. There is, therefore, no answer to the Adjudicator's reasoning that, reading article 39.07 with the provisions that preceded it, a reduction of "regular ... staff" or number of "employés" (without any reduction in predictable volumes of mail) can result in a "high mail volume(s)" within the sense of that provision, just as an increase in volume of mail over the predicted volume may create a situation when the "regular ... staff" or number of "employés" remains unchanged.
APPLICATION for judicial review. COUNSEL:
J. C. Demers for applicant.
P. Lesage for respondents. SOLICITORS:
Deputy Attorney General of Canada for applicant.
Trudel, Nadeau, Létourneau, Lesage & Cleary, Montreal, for respondents.
J. E. McCormick, Public Service Staff Rela tions Board, Ottawa, for mis -en-cause.
The following are the reasons for judgment rendered in English by
JACKETT C.J.: This is a section 28 application to set aside a decision by an Adjudicator under the Public Service Staff Relations Act, R.S.C. 1970, c. P-35, holding that the respondents were entitled to relief by reason of a breach by the employer of their collective agreement in not offering them an opportunity to work overtime on certain days when they would have been available to do so.
The problem involved arises out of a situation that arose in 1976 in the postal service at St. Jérôme, P.Q.
As a background to the problem it is to be noted that a postal clerk by the name of Grondin, who had been working a day-time shift at St. Jérôme was transferred against his will to Montreal and, as he instituted a grievance procedure against the transfer, there was a possibility that he might be reinstated in his St. Jérôme position. In these circumstances, his position was given to one Gauthier, who had been working on a night shift at St. Jérôme, apparently on the understanding that, if Grondin was reinstated, he would be rein stated in his night shift position.'
In the circumstances, no similar arrangement was made to fill Gauthier's position on a similar basis but, for at least a part of the period, persons
II am using the word "position" here in the sense of "assign- ment" of responsibilities and not in the purely legal sense of authority to employ or in the personnel administration sense of a "position" with a position number on an establishment chart.
from outside the service, whose names were Dicaire and Jetté, were employed for short periods for at least a part of the time necessary to settle the Grondin matter. The periods for which they were employed were from August 5 to August 19, 1976, and from September 3 to December 24, 1976, respectively.
The respondents' grievances were that on certain days during those periods they were entitled, according to the collective agreement, to have been offered the work because they were "regular employees available to perform additional hours and/or overtime" and had not been offered such work. The periods in respect of which they so grieved (according to the Adjudicator) were the night shifts of the following days:
August 11 (Côté)
August 16 (Raymond)
August 18 (Desnoyers)
September 13 (Raymond)
September 25 (Beaubien)
October 4 (Raymond)
October 6 (Desnoyers)
October 16 (Desnoyers)
October 20 (Raymond)
October 23 (Castonguay)
October 30 (Raymond)
November 2 (Castonguay)
Before examining the relevant provisions of the collective agreement, it is to be noted that the Public Service Staff Relations Act makes provi sion for collective bargaining in the Public Service on behalf of "employees" (section 26) and an "employee" is defined (section 2) to mean a person employed in the Public Service other than inter alia
2....
(f) a person employed on a casual or temporary basis, unless he has been so employed for a period of six months or more,
It would seem clear that Dicaire and Jetté were not employees within this definition and were not covered by the collective agreement.
Before referring to the particular provision on which the Adjudicator based his decision in favour of the respondents, it is advisable to review the context in which it is found. The employer agreed
that it would follow a policy of employing suffi cient regular staff to maintain service standards for predictable "workloads and absences" and would maintain eligible lists to fill vacant positions as they occur (articles 39.02, 39.03 and 39.06). The employer also accepted limitations in favour of regular employees on the use of "casuals" made necessary by vacation leave (article 39.04) and of Christmas helpers (article 39.05). Against that background must be read the agreement concern ing "High Mail Volume Situation" (article 39.07) on which the Adjudicator based his decision. That provision reads:
[French Version]
39.07 Surplus de courrier
Lorsqu'un surplus de courrier nécessite le travail d'heures additionnelles, l'employeur convient que ce travail sera offert premièrement aux employés réguliers disponibles pour accom- plir des heures additionnelles et/ou supplémentaires. Dans les cas ou la mesure ci-haut mentionnée n'est pas suffisante pour rencontrer les besoins du service, des aides occasionnels seront utilisés pour augmenter le personnel régulier.
[English Version]
39.07 High Mail Volume Situation
When high mail volumes necessitate the working of extra hours, the Employer agrees that such work will be offered first to regular employees available to perform additional hours and/or overtime. In instances where the action mentioned above is not sufficient to meet service requirements, casual employees will be used to complement the regular staff.
The Adjudicator held
(a) that Dicaire and Jetté were not regular employees, but were casual employees, within the meaning of this provision, and
(b) that the vacancy in Gauthier's regular posi tion created a situation of "high mail volumes" that necessitated the working of extra hours within the meaning of article 39.07.
Counsel for the applicant does not appear to attack the finding that Dicaire and Jetté were casual employees. He defends the fact that Gau- thier's position was not filled as being necessary to protect Gauthier in the event of Grondin being reinstated and he attacks the finding that there was a high mail volume within the meaning of article 39.07.
With reference to the failure to fill Gauthier's position, it is not obvious why it could not have
been filled on the same basis as Grondin's position was filled. 2 However that may be, the decision not to do so was a management decision that appar ently resulted in there being less staff (during the vacancy) than was sufficient for predictable work
loads (article 39.02). That being so, I can see no answer to the reasoning of the Adjudicator as I understand it that, reading article 39.07 with the provisions that preceded it, a reduction of "regular ... staff" or number of "employés" 3 (without any reduction in predictable volumes of mail) can result in a "high mail volume(s)" within the sense of that provision, just as an increase in volume of mail over the predicted volume may create such a situation when the "regular ... staff' or number
of "employés" remains unchanged.
I do not overlook the administrative difficulty involved in having a long time vacancy subject to the sort of rights created in favour of regular employees by a provision such as article 39.07. However, such a provision cannot be ignored on that account. The answer lies in taking administra tive action that is available, if there is any, to avoid "high mail volumes" or in renegotiating the collec tive agreement to make more suitable provision for such situations.
In my view, the section 28 application should be dismissed.
* * *
LE DAIN J.: I agree.
* * *
HYDE D.J.: I agree.
2 Again, I am using "position" in the sense of "assignment". Authority to employ a substitute must have been obtained and the sole question is why a substitute could not have been employed "for a period of six months or more" (subject to having his employment terminated in the event of Gauthier's return) so that the substitute would have been an "employee" subject to the collective agreement.
3 Cf. article 39.02(a).
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.