In Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55, the Supreme Court of Canada considered an appeal of the judicial review of a grievance arbitrator’s decision concerning the federal government’s mandatory standby duty directive applicable to its lawyers working in the Immigration Law Directorate.
Beginning in the 1990s, the federal government established a standby shift system for lawyers in order to support urgent immigration matters that might arise outside of regular working hours. Initially this system operated on a volunteer basis, and lawyers who accepted standby duties were compensated with paid leave for standby shifts, regardless of whether or not they were actually called in to work. In 2009, the employer changed its practice of providing paid leave, and began only paying lawyers for standby shifts if they were actually called in to work. The employer eventually began to experience challenges in securing a sufficient number of volunteers for standby shifts. In response, it issued a directive making standby shifts mandatory for all lawyers. According to this directive, all lawyers would be required to cover evening and weekend shifts for one to three weeks per year.
The collective agreement at issue in the case did not contain any specific provisions regarding standby shifts. The collective agreement did, however, contain what is commonly referred to as a “management rights” clause, which stated that all functions, rights, powers and authority that the employer had not specifically modified by the agreement were retained by the employer. The collective agreement also stated that the employer would “act reasonably, fairly and in good faith in administering the Agreement”.
The arbitrator found that the mandatory standby directive was neither reasonable nor fair, and was contrary to the collective agreement. The arbitrator also found that the directive violated the employees’ section 7 liberty rights under the Canadian Charter of Rights and Freedoms (the “Charter”). The federal government applied for judicial review of this decision, which was then set aside by the Federal Court of Appeal.
The Supreme Court allowed the appeal in part. Specifically, the Supreme Court found that the adjudicator’s decision that the directive was not a proper exercise of management rights was reasonable, but that the directive did not engage any liberty interests protected by the Charter. The Supreme Court found that assessing the reasonableness of an exercise of a management right requires a “balancing of interests” assessment, and that the arbitrator had applied a balancing approach by considering the purpose of the directive, the terms of the collective agreement, and the effect of the directive on lawyers’ personal lives. The Supreme Court found that the arbitrator’s conclusion that the standby directive violated the collective agreement fell within the range of reasonable outcomes. While the Supreme Court agreed with the Federal Court of Appeal that section 7 of the Charter was not engaged in the circumstances, the Supreme Court found that the adjudicator would have come to the same decision on the lawfulness of the directive even if he had not erred in his Charter analysis.
While the Charter aspect of this Supreme Court decision may not be directly relevant to private sector employers, this case is significant for all unionized employers operating in Canada in that it confirms that management rights must be exercised reasonably. Accordingly, the fact that a collective agreement may be silent on a particular issue does not provide an employer with an unfettered right to create rules or directives applicable to employees. When developing a workplace directive, unionized employers should ensure that the directive does not conflict with any provision of the collective agreement, and that the legitimate goals of the directive are reasonably balanced with any negative impact on employees.