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A-496-81
The Queen (Applicant)
v.
Canadian Union of Postal Workers (Respondent)
Court of Appeal, Heald, Urie JJ. and Kerr D.J.— Ottawa, September 9; Toronto, September 14, 1982.
Judicial review — Applications to review — Public Service — Application to review and set aside decision of member of Public Service Staff Relations Board directing employer to hire part-time relief employees to cover absences of part-time staff — Collective bargaining agreement requires "regular employees" to cover absences — Employer can assign regular full-time, as well as part-time employees, to relieve absent regular part-time employees — Appeal allowed — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 98 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a decision of a member of the Public Service Staff Relations Board directing the Post Office to hire part-time relief employees to cover absences of part-time staff. The Post Office in Campbellton, New Brunswick, assigned two full-time employees to work the hours normally worked by two part-time employees who were on vacation. The Board decided that the Post Office was in breach of the collective agreement which requires regular full and part-time staff to maintain service standards during absences and which, elsewhere, stipulates that part-time employees can only be used for part-time requirements.
Held, the application is allowed. The Board's interpretation of the agreement is inconsistent with a section pursuant to which the Post Office agreed to have a sufficient number of regular employees to cover normal absences. This is a particu lar section which describes the manner in which normal absences may be covered. The employees who covered for the part-time staff were regular employees. Therefore, the agree ment was not breached. The matter is referred back on the basis that the Post Office is not obliged to assign only part-time employees for the relief of absent regular part-time employees.
COUNSEL:
M. Ciavaglia for applicant.
J. McCormick for Public Service Staff Rela
tions Board.
John B. West for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Public Service Staff Relations Board on its own behalf.
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a decision rendered on August 25, 1981 by Donald MacLean, Board Member and Adjudicator of the Public Service Staff Relations Board, respecting a reference brought by the respondent under section 98 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
The relevant facts are simple and not in dispute. During the week of September 14 to September 20, 1980, Bourgeois and Doucett, regular part- time employees at the Post Office in Campbellton, New Brunswick were both absent on vacation. For their relief, Messrs. Clark and Gallant, both full- time employees at the Campbellton Post Office, were assigned to work the hours normally worked by Messrs. Bourgeois and Doucett. As a result, both Messrs. Clark and Gallant worked their full 71 hours for each day of that week. The respond ent submitted before the Board that in replacing part-time employees with full-time relief employees, the employer had contravened articles 39.02(a), 39.03, 39.07 and Appendix "H" of the collective agreement. Those provisions read as follows:
39.02 Staffing
(a) The corporate policy on staffing is that sufficient regular full-time and part-time staff are to be employed to maintain service standards for predictable workloads and absences and it is agreed that this policy will be followed.
39.03 Work Force
The Employer agrees to have in his work force a sufficient number of regular employees to cover the rate of normal absences due to illness, special leave, vacation leave and leave without pay.
39.07 Use of Part-Time Employees
The Employer agrees that part-time employees are to be used only for the part-time operational requirements, that is, during peak periods and that, whenever practicable, such positions shall be combined in order to create full-time positions.
"Peak period" should be understood to mean a period of time not exceeding five hours during which a large volume of mail requires the presence of a greater number of employees. It is incumbent on the Employer to determine the time of such a period per day, which may vary according to places and dates. The Employer may ask a part-time employee to continue to work beyond the peak period.
The normal work week of part-time employees shall be at least twenty (20) hours. The part-time employee shall be allowed two (2) days of rest weekly. Any work performed by a part-time employee on one or the other of those two days shall constitute overtime and be remunerated at the rate of time and a half.
APPENDIX "H"
MEMORANDUM OF AGREEMENT REGULAR PERSONNEL
On the basis that relationships vary from post office to post office, the Employer will inform the local Union of the current number of regular personnel utilized for replacement of absences as specified in clause 39.03.
The Board agreed with this submission and allowed this aspect of the respondent's reference, finding that the replacement of part-time employees by full-time employees was contrary to the employer's obligations contained in articles 39.02(a), 39.03 and 39.07 of the collective agree ment in that the employer should have sufficient part-time relief employees, in addition to full-time employees, to cover absences. The employer was accordingly directed "... to initiate staffing action with a view to ensuring that there are a sufficient number of regular part-time employees to main tain service standards for predictable workloads and absences for part-time operational require ments" (Case, page 37). It is this portion of the Board's decision and order which forms the subject matter of this section 28 application.
The rationale of Mr. MacLean's decision is, in my view, contained in the following passage from his reasons for decision (Case, page 37):
In my opinion the maintenance of "service standards for pre dictable workloads and absences" in 39.02(a) must be referable to "part-time operational requirements" in 39.07, as well as full-time operational requirements. Mr. Lee would have me say that full-time staff are the only ones that are required by 39.02(a) to be employed for workloads and absences while part-time employees are to be employed only for predictable workloads. He would suggest that part-time employees need not be employed to cover for absences. But that is not what 39.02(a) states. What it does state quite categorically is that "sufficient regular full-time and part-time staff are to be employed ..." and that part-time staff (as well as full-time) are to be employed to maintain service standards for predict able absences (as well as workloads).
What I understand him to be saying is that since article 39.02 requires sufficient regular full-time and part-time staff to maintain service standards for predictable workloads and for absences and since article 39.07 stipulates that part-time employees can only be used for part-time opera tional requirements, it automatically follows that part-time employees must be employed to cover for absences by part-time employees. My problem with this interpretation is that it is inconsistent with the plain and unambiguous words used in article 39.03. By that article, the employer agrees to have in the work force a sufficient number of regular employees to cover the rate of normal absences due to "... leave without pay". It is agreed that the employees who substituted for the part-time employees were "regular employees" but the objection is that they were full-time rather than part-time employees. Article 39.03 makes no mention of part-time or full-time employees. It refers only to regular employees. By using regular employees to cover for the absent part-time employees, the employer has, in my view, complied with the provisions of article 39.03. Article 39.02(a) sets out the general staffing policy with respect to the employment of full-time and part- time staff but article 39.03 is the particular section which describes the manner in which normal absences may be covered. The reference in Appen dix "H" to clause 39.03 and to "regular person nel", without differentiating between part-time and full-time regular personnel, further fortifies my view in this regard.
There is no allegation here that the employer does not have sufficient full-time relief staff. It is also significant that the Campbellton Post Office only has five part-time employees. The Board's construction of the agreement would mean that an extra part-time employee would have to be hired to cover for, at the most, 15 weeks vacation annually plus the other normal absences of the part-time employees.
The Board is interpreting article 39.03 as though it read: "The employer agrees to have in his work force a sufficient number of regular part-time employees to cover the rate of normal absences by part-time employees due to illness, special leave, vacation leave and leave without pay." (The words added to the actual text of article 39.03 are underlined.)
I am not prepared to so construe article 39.03. As stated supra, such a construction would place an unreasonable burden on the employer. It would also encroach upon the management rights reserved to the employer by article 2.01 of the agreement which reads as follows:
2.01 Rights
It is recognized that the Employer exercises rights and responsibilities as management, which are subject to the terms of this Agreement.
In my opinion, the meaning of article 39.03 is clear and unambiguous. It allows the employer to cover normal absences due to employees being on leave without pay by the use of regular employees and "regular employees" as used in that article clearly includes full-time regular employees.
For these reasons, I would allow the section 28 application and set aside the decision dated August 25, 1981 of Donald MacLean, Board Member and Adjudicator of the Public Service Staff Relations Board, in so far as it decides that the employer may not assign full-time employees for the relief of regular part-time employees, and orders the
employer to initiate staffing action with a view to ensuring that there are a sufficient number of regular part-time employees to maintain service standards for predictable workloads and absences for part-time operational requirements. I would also refer this matter back to the Board for deci sion on the basis that the employer is not obliged under the collective bargaining agreement to assign only part-time employees for the relief of absent regular part-time employees.
URIE J.: I agree. KERR D.J.: I agree.
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