In a pair of recent decisions, the Federal Public Sector Labour Relations and Employment Board confirmed the broad and purposive approach to the statutory freeze on terms and conditions of employment during collective bargaining. In Public Service Alliance of Canada v Treasury Board (Correctional Service Canada) and Public Service Alliance of Canada v Canada Revenue Agency, the Board found that the employer had violated the freeze by altering terms and conditions of employment without the union’s consent.

The Federal Public Sector Labour Relations Act, like labour law in most jurisdictions, contains a prohibition on altering the terms and conditions of employment while a union and employer are engaged in collective bargaining. The provision states that, unless the parties otherwise agree, “each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit” until either a collective agreement is reached or a strike could be commenced. This is referred to as a “freeze” on terms and conditions of employment. The purpose of the statutory freeze is to maintain the status quo, and provide stability during the collective bargaining process.

In the Correctional Service Canada case, the Union argued that the employer had violated the freeze by reducing the hours of work of full-time term employees to four days per week, contrary to its longstanding practice. The Board agreed, finding that there was “no evidence that the respondent had made any reductions to the hours of work of the affected employees before the freeze period”, and therefore there was an established pattern of full-time employment for term employees, which created a reasonable expectation that hours would not be reduced during the freeze period.

In the Canada Revenue Agency case, the Union argued that the employer violated the freeze by eliminating the ability of employees to select variable and flexible work hours commencing before 8:00 a.m. The Board agreed, holding: “It was demonstrated that before September 2014, employees had been able to request flexible and super-compressed work schedules for years and that their requests had been approved. Thus, a pattern had been established. Once notice to bargain was given, it was reasonable for the employees to expect that it would continue.”

Both decisions endorse the “business as before” approach to statutory freeze complaints, which requires consideration of the entire pattern of the employment relationship prior to the freeze, in order to determine whether there was a violation. The Board rejected the narrower approach advocated by the employer in both cases, and also rejected the claim that the employer retained discretion to modify hours of work pursuant to legislation. As the Board stated in Canada Revenue Agency, to accept that argument “would render the protection conferred under the statutory freeze provision meaningless and it could lead to an absurd interpretation of the Act.”

The Public Service Alliance of Canada was represented in both cases by Amanda Montague-Reinholdt of RavenLaw.

On October 18, 2017, James Cameron will present at the Canadian Institute’s Disability Insurance Conference. James will be discussing litigation strategies in LTD benefit claims, specifically addressing strategies for streamlining the litigation process and how to present your case to achieve best outcomes in a timely and cost-effective manner.

For more information or to register for the conference, please visit the Canadian Institute’s conference website.

On October 31, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to certain restrictive portions of Québec’s pay equity legislation.

In particular, in 2009, the Québec government made changes to its pay equity law which required employers to review their wage rates every five years to determine whether changes to wages had resulted in wage discrimination. However, the 2009 amendments to the Pay Equity Act also prevented affected employees from claiming any remedy for discrimination that occurred in between the five-year reviews.

Before the Supreme Court, unions, workers, and pay equity and women’s organizations joined together to argue that these amendments resulted in ongoing discrimination against women and breached their Charter rights.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada.

On November 4, 2017, RavenLaw participated in the 6^th annual Workers’ Bowl, an annual fundraiser in Toronto for the Workers’ Action Centre, a worker-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.

The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.

This is the second year that the RavenLaw team – Wassim Garzouzi, Morgan Rowe, Anna Lichty, and Marlee Olson – has joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.

On November 8, 2017, Michael Fisher spoke as part of the panel “Fitness to Work: Ensuring a Safe Work Environment in an Era of Marijuana, Opioids, and Other Drugs,” at Lancaster House’s Human Rights and Labour Law Conference in Ottawa. The panel focused on the common misperceptions on the use of medical marijuana and other drugs, impairment testing in safety sensitive workplaces, an employee’s duty to disclose their use of medical marijuana and other prescription drugs, and balancing accommodation and safety obligations.

Morgan Rowe is honored to be a “Featured Volunteer” on the REACH Canada website.  Morgan has volunteered with REACH as part of its pilot project providing legal information clinics to individuals with disabilities in Ottawa.  Morgan also provides pro bono legal services through REACH’s lawyer referral service.  REACH has provided this service and public education for individuals living with disabilities since 1981. RavenLaw is a long-term, proud supporter of REACH.

Please note our office will be closed from December 23, 2017 until January 1, 2018. We will reopen for regular business hours on Tuesday, January 2, 2018 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

We are delighted to announce the opening of our Kingston office, enabling us to better serve our existing and future labour and employment clients.

Kingston will now have access to an exclusively employee side law firm, with substantial experience in all aspects of labour, employment, long term disability and human rights.

For further information on how to reach the Kingston office, click here.

On November 30, 2017, Morgan Rowe will present at the 3rd Annual Council of Canadians with Disabilities Conference. This year, the conference will be addressing the duty to accommodate. Morgan will be presenting on issues related to accommodating disabilities in education.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

For more information or to register, please visit the conference’s event page.