Decisions clarify essential services, enforcement of mediated settlements

Federal Court of Appeal sides with union in both cases
By Gordon Sova
|Canadian Labour Reporter|Last Updated: 02/10/2011

Two recent Federal Court of Appeal decisions involving federal public service unions are being cited as precedential.

The first is the affirmation of a Public Service Labour Relations Board ruling on essential services. In May of 2010, the PSLRB found that, rather than declaring whole positions as essential, it could declare specific services, which might only part of an employee’s normal tasks, to be essential.

The current legislation, the Public Service Labour Relations Act, came into force in 2005. It rewrote the provisions on essential services from the previous statute. The new provisions have been interpreted several times to mean that services and not positions are to be declared essential, but this interpretation had not been reviewed judicially.

This case involved computer programmers represented by the Professional Institute of the Public Service of Canada and how many of them were required to be on the job at Public Safety Canada.

The Court issued reasons from the bench, but they have not been released.

The second case involved a member of the Public Service Alliance of Canada who grieved a suspension. A mediator helped the union and the government to reach a settlement that required the employer to meet with the grievor, help resolve outstanding issues and improve the working relationship. When that did not happen, he tried to re-open the mediation process.

The mediator took up the case again, but the government claimed that it had been settled by the original memo of settlement, regardless of whether it had been followed. It argued that the grievor had to file another grievance.

The Federal Court agreed with that argument, but the Court of Appeal did not. Its reasoning centred on protecting effecting labour relations. “Without clear, efficient and economical means to enforce settlement agreements, mediation runs the risk of becoming meaningless. The [employer’s] solution would add years to the resolution of the appellant’s grievance. This, again, cannot be in the best interests of labour relations within the appellant’s workplace or any grievor’s workplace.”

Reasons in this case are not yet available, either.

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