2019 NLCA 55, 2019 NLCA 55

Unifor Local 2121 (appellant) v.

Newfoundland and Labrador Labour Relations Board (first respondent), Hibernia Management and Development Company Limited (second respondent), Hibernia Platform Employers’ Organization (third respondent), Baker Hughes Canada Company (fourth respondent), Belfor Property Restoration (fifth respondent), Crosbie Salamis Ltd. (sixth respondent), Halliburton Canada ULC (seventh respondent), Import Tool Corporation Ltd. (eighth respondent), Newfoundland and Labrador Association of Quality Personnel (ninth respondent), Wood Group PSN Canada Inc. (tenth respondent), Spectrol Energy Services Inc. (eleventh respondent), Tam International Oil Services Ltd. (twelfth respondent), and Vallourec Canada Inc. (thirteenth respondent) (16/88) Indexed As: Unifor Local 2121 v.

Newfoundland and Labrador (Labour Relations Board) 2019 NLCA 55 5 C.A.N.L.R. 12 Court of Appeal of Newfoundland and Labrador Green, White and O’Brien JJ.A. September 10, 2019

Summary:

Section 38.1 of the Labour Relations Act , RSNL 1990, c. L-1 , requires that there be a single bargaining unit comprised of all employees employed on the Hibernia platform, except those employees that the Labour Relations Board determines are employed in construction and start up on the platform.

Section 56.1 of the Act further requires that the Hibernia Platform Employers’ Organization (the “HPEO”) bargain on behalf of all employers who have employees on the platform. Unifor sought a declaration that certain employers – being the fourth to thirteenth respondents in this appeal – be deemed employers of employees employed on the platform within the meaning of

section 38.1 and, in turn, that they were required to be members of HPEO. The Labour Relations Board determined that the phrase “employees employed on the platform” found in

section 38.1 should be interpreted as employees who did not have a “significant attachment to the platform”. The “significant attachment” test had been previously enunciated by the Board in a certification application, and had been discussed in a report respecting the collective bargaining regime that should be applied to offshore oil platforms (the “Cooper Report”). In applying the “significant attachment” test in this case, the Board focused on whether employees had worked at least 24 days on the platform in a selected 90 day period (the “24/90 test”).

The Board held that employees of Belfor, Halliburton, Import Tool, Spectrol, Tam International and Vallourec did not have a significant attachment and were excluded from the bargaining unit, with the consequence that their respective employers did not have to become members of HPEO. A significant attachment was demonstrated for employees of Crosbie Salamis and membership in HPEO was therefore mandated. With respect to Baker and Wood Group some of their employees’ positions were determined to have a significant attachment and some were not.

Because Baker and Wood Group had some employees who were in the bargaining unit, they also had to become members of HPEO. Unifor sought judicial review of the Board’s decision.

Unifor made the following arguments at the hearing of the application: the Board’s decision was unreasonable because the test applied by the Board ignored the plain language of the Act ; the Board unreasonably applied a community of interest test that had no application to a statutorily-defined bargaining unit; there was no justification for using a 90-day evidence gathering period because it undermined the entire statutory scheme; the 24/90 test had no relevance of application to the issue of which employers were required to be members of HPEO; and the decision was not responsive to Unifor’s arguments.

The applications judge rejected all of Unifor’s arguments and denied the application for judicial review. Unifor appealed this decision and made similar arguments on the appeal. Held: Appeal dismissed.

Green J.A. (White and O’Brien JJ.A. concurring): The question under consideration in this appeal is whether the applications judge erred in her conclusion that there were reasonable competing

interpretations of the legislation. To determine whether the judge erred in finding that there were competing

interpretations of the legislation, it is necessary to examine whether the judge applied the appropriate statutory

interpretation principles and, if not, whether a proper application of those principles would lead to a finding that Unifor’s proposed

interpretation of the statute is the only reasonable

interpretation (paragraphs 36-46). The language of

section 38.1 does not support Unifor’s argument that the statutorily-defined bargaining unit encompasses every person except those involved in construction and start-up. The issue for the Board in the decision under review was not the meaning of the word “employee” in the abstract, but the meaning of “employee employed on the platform”. It could not be said that it was unreasonable for the Board to focus on “employees employed on” when interpreting

section 38.1 , as opposed to focusing on the literal meaning of the word “employee” (paragraphs 47-66). There was no inconsistency between statements made in the Cooper Report and prior decisions of the Board, and the

interpretation of

section 38.1 that was accepted by the judge. The Cooper Report did not expressly address the question of whether there should be some defining characteristic that would determine if a worker was to be considered in the bargaining unit. The language of

section 38.1 is not the same as that applied in the Cooper Report, meaning that the legislature chose to depart from the language in the report. Further, the Board had not previously been asked to decide the specific question of what “employees employed on the platform” meant for the purposes of determining membership in HPEO. The Board’s conclusion in this matter was therefore not inconsistent with any of its decisions in prior matters. Nor was the Board’s adoption of a substantial attachment gloss on

section 38.1 inconsistent with the Board’s own supporting analysis (paragraphs 67-78). The Board’s

interpretation of

section 38.1 was not inconsistent with the general purpose of the legislation. The legislature chose to leave it to the Board to determine whether the type, nature, frequency and duration of work on the platform could be said to amount to being “employed on the platform”. Such a determination requires a significant attachment analysis, as applied by the Board (paragraphs 79-84). Although the judge did not specifically advert to the “mischief” to which

section 38.1 was directed, it is apparent that she accepted that the mischief that was intended to be avoided was the potential for disruption of labour peace by fragmented bargaining resulting in different treatment of employees even though their working environment was essentially the same.

Section 38.1 should therefore be interpreted and applied in a manner that would work toward the overall objective of addressing that mischief (paragraphs 85-88). There was no basis for disturbing the Board’s conclusions respecting the significant attachment principle. The legislature left the determination of whether, in a given case, a worker was an employee “employed on” the platform to be decided by the Board. This required the Board to develop and apply a principle that would differentiate between those who were employed on the platform and those who were not.

The Board’s decision to apply a significant attachment principle in this regard was not unreasonable. The adoption of the significant attachment principle does not amount to a modification or alteration of the legislation; rather, it is a practical focusing of the legislation in its specific application (paragraphs 89-91). There was no basis for concluding that the judge erred in finding that it was not unreasonable for the Board to adopt and apply the 24/90 test in the way that it did.

The Board recognized that the test was not absolute and this saved the decision of the majority from being unreasonable (paragraphs 92-105). Cases cited: Hibernia Management & Development Co. v. F.F.A.W.-C.A.W., [2001] Nfld. L.R.B.D. No. 3, 68 C.L.R.B.R. (2d) 161 Communications, Energy and Paperworkers Union of Canada, Local 60N v. Hibernia Management Development Company Limited and Hibernia Platform Employers’ Organization [2011] L.R.B.D. No. 6 Agrairav. Canada (Minister of Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 Merck Frosst Canada Ltd. v.

Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23 Burke v. NLAPPE, 2010 NLCA 12 , 294 Nfld. & P.E.I.R. 230 McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895 Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 , [2016] 1 S.C.R. 770

Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 Alberta (Information and Privacy Commissioner v. Alberta Teachers Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 Locke’s Electrical Ltd. v Newfoundland and Labrador (Labour Relations Board) , 2011 NLCA 40 Lynch v. St. John’s (City), 2016 NLCA 35 Archaen Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43 Layman v. Layman Estate , 2016 NLCA 13 Re Communications, Energy and Paperworkers Union of Canada, Local 60N and Petro Canada , [2006] N.L.L.R.B. No. 2 Statutes considered: Labour Relations Act , RSNL 1990, c.

L-1, sections 38.1 and 56.1 Canada Labour Code, RSC 1985, c.

L-2 Rules considered: Labour Relations Board Rules of Procedure , NLR 745/96, rule 49(1) Articles considered: Ashley Bowron, “Reviewing the Reviewer: The Role of Appellate Courts in Judicial Review” (2019) 50:1 Advocates Quarterly 18 Counsel: Dana Lenehan Q.C. and Kenneth Jerrett, for the appellant; Genevieve Dawson Q.C., for the first respondent; Stephen Penney and Ruth Trask, for the second and third respondents; No appearance by the fourth, fifth and sixth respondents; Chris King, for the seventh and eighth respondents; No appearance by the ninth respondent; Gregory Anthony, for the tenth respondent; No appearance by the eleventh respondent; Robert Andrews Q.C., for the twelfth respondent; Chris King, for the thirteenth respondent.

The appeal was heard on June 19-20, 2017 before Green, White and O’Brien JJ.A. The following judgment was filed on September 10, 2019 by Green J.A. for the Court. ______________________________________________________________ Green J.A.: [ 1 ] This appeal involves a challenge to a decision of a judge on judicial review of a labour relations board decision dealing with the scope and operation of sections 38.1 and 56.1 of the Labour Relations Act , RSNL 1990, c. L-1 .

The issues in this case arise in the context of addressing the question as to which employers of workers on the Hibernia oil production platform offshore Newfoundland and Labrador are required to be members of a statutorily-mandated employers’ organization for the purpose of negotiating, and being governed by, a single collective agreement regulating work on the platform.

Overview [ 2 ] Labour relations on the Hibernia platform are, in certain respects, governed by a special statutory regime. Notwithstanding the fact that there are numerous employers working on the platform in various capacities, there must be a single bargaining unit which is statutorily defined as comprising “all employees employed on the platform except those employees the [Labour Relations Board] determines are employed in construction and start up on the platform.” ( Labour Relations Act, s. 38.1 ).

In addition, all employers of such employees are required to be members of one employers’ association for the purpose of negotiating a single comprehensive collective agreement regarding work on the platform ( s. 56.1 ). [ 3 ] The Labour Relations Board decided that the phrase “employees employed on the platform” in s. 38.1 should be interpreted as excluding employees who did not have “a significant attachment to the platform.” Furthermore, the Board formulated a presumptive test for determining when “significant attachment” occurred.

The test focused examination of the evidence of significant attachment on circumstances where workers had worked at least 24 days in a selected 90 day period. The consequences of application of such a test were that, if nothing else was to be considered: (

i) workers who did not work the required 24 days would be excluded from the bargaining unit; (ii) employers of such workers would also be excluded from the bargaining regime (unless they also employed other workers who had a significant attachment to the platform); and (iii) employees and employers who by happenstance did not meet the required level of activity (24 days) in the particular 90 day period that had been selected, but who might have met it in another 90 day period, would also be excluded. [ 4 ] The result, therefore, was that certain persons, beyond those in construction and start-up, who worked on the platform from time to time were excluded from the bargaining unit even though the language of s. 38.1 did not expressly address such exclusions.

The corollaries of this result included: (

i) those excluded employees would not be entitled to any union representation or protection under the Hibernia collective agreement (although they might have protection under another collective agreement to which their employer might be subject), because only one bargaining unit, represented by the appropriately-certified union, was allowed to exist with respect to labour relations on the platform; and (ii) employers of only such excluded employees would not be required to be members of the employers’ association of which all other employers were statutorily required to be members for the purpose of collective bargaining and application of the one collective agreement. Background (

a) The Significant Attachment Principle and the 24/90 Test [ 5 ] Unifor, the appellant in this appeal, is the certified bargaining agent for the employees working on the platform. It became aware that there were certain employers of workers who it believed were within the scope of the bargaining unit that were not members of the Hibernia Platform Employers’ Organization (HPEO), the organization that by virtue of s. 56.1 was required to represent and bargain of behalf of all employers who had employees on the platform.

Unifor sought a declaration under ss. 17 and 18 of the Labour Relations Act that such employers, the Fourth to Thirteenth respondents on the appeal, (hereinafter sometimes referred to as Baker, Belfor, Crosbie, Halliburton, Import Tool, NLAQP, Wood Group, Spectrol, Tam International and Vallourec respectively) were deemed to be employers employing employees on the platform within the meaning of s. 38.1 and that they, accordingly, were required to be members of and be represented by HPEO and were bound by the collective agreement. [ 6 ] In addressing the questions posed, the Board adopted the “significant attachment” principle to determine which employees and employers were caught by s. 38.1 and, further, adopted the 24/90 test as the starting point for determining whether significant attachment existed in a given case. [ 7 ] The significant attachment principle and the 24/90 test were first enunciated in a previous decision of the Board which addressed the scope of s. 38.1 in the context of an application for certification by the predecessor of Unifor with respect to the statutorily-defined bargaining unit on the platform ( Hibernia Management & Development Co. v.

F.F.A.W.-C.A.W., [2001] Nfld. L.R.B.D. No. 3 , 68 C.L.R.B.R. (2d) 161 ; hereinafter, the Certification Decision ). [ 8 ]

Section 38.1 of the Act provides: 38.1

(1) Where the board receives an application with respect to employees employed on an offshore petroleum production platform, the unit appropriate for collective bargaining is the unit comprising all the employees employed on the platform except those employees the board determines are employed in construction and start up on the platform.

(2) Where the board receives an application for certification with respect to employees employed on an offshore petroleum production platform in relation to construction and start up on the platform, the board shall deal with the application in accordance with

section 38 [the provision dealing with applications for certification generally].

(3) For the purposes of an application for certification with respect to employees employed on an offshore petroleum platform, the licensed operator of the platform shall be considered to be the employer of the employees for the purpose of the board’s consideration of the application. [ 9 ] The Certification Decision in part justified the placement of the significant attachment gloss on s. 38.1 based on a purposive reading of the

section in the light of its genesis from a recommendation in a report prepared by Morgan Cooper who had been engaged to make recommendations as to the form and structure of the collective bargaining regime that should be applied on offshore oil production platforms (Morgan C. Cooper, “Labour Relations Processes on Offshore Oil Production Platforms, April 25, 1997; hereinafter, the Cooper Report ). The Board noted that its

interpretation of s. 38.1 was “consistent” with the discussion in the Cooper Report. (

b) The Cooper Report [ 10 ] In recommending that there be a single bargaining unit for the purpose of collective bargaining in relation to workers on offshore petroleum production platforms and that employers of such workers be represented by one employers’ organization, Cooper had

commented: In the case of offshore production platforms, there is a strong community of interest among employees in such matters as work location, work hours, working conditions and methods of remuneration.

Apart from shift rotations under which employees will eat, sleep and work together for two or three weeks, employees share the social disruption and isolation as well as risks of working offshore in an environment with extremes of temperature, wind, rain and snow. … [T]here is no evidence to suggest that the interests of all employees cannot be reflected in one set of negotiations and one collective agreement…. [A] strong case emerges for the imposition of single location bargaining units encompassing all employees, professional or otherwise. ( Cooper Report , pp. 273 & 274) [ 11 ] Cooper drew a distinction, however, between the “core” workforce and the “supplementary” workforce (construction and start- up personnel) and recommended that the latter be excluded from the bargaining unit: The extended periods of time for which the licensed operators … will utilize a supplementary workforce (twelve to eighteen months in the Hibernia development) provide additional support for the promulgation of a policy distinguishing between the supplementary and core workforce.

The merits of such a policy are more pronounced when one considers that a number of the construction workers in Hibernia’s supplementary workforce are members of the bargaining unit created under the Lieutenant-Governor in Council’s special project designation; other members of the supplementary workforce will be employees of the manufacturers of machinery and equipment installed on the platforms; and still others will be employees of specialized contractors who will not employ members of the core workforce.

Although these supplementary employees should not be precluded from collective action if they so desire, it is clear that their community or communities of interest would be distinctly different from the core workforce. This difference favours the separation of construction and commissioning employees from the core workforce for collective bargaining purposes.

It follows that the Consultant’s previous endorsement of one bargaining unit for employees of offshore oil production platforms must be qualified with the additional comment that the bargaining unit should encompass all employees on offshore oil production platforms with the exception of construction and start-up personnel . ( Cooper Report , pp. 280-281. Emphasis added.) [ 12 ] Cooper recommended a statutorily-defined bargaining unit in much the same, but not identical, language to that of what ultimately became s. 38.1.

He recommended language defining the bargaining unit as “all employees on an offshore oil and gas production platform,” whereas s. 38.1 used the phrase “all employees employed on …”. [ 13 ] It is worth observing that the Cooper Report was written at a time before petroleum production was underway in the offshore. The report was understandably focused on whether start-up and construction personnel should be included in the bargaining unit governing the steady-state or core workforce.

It did not explicitly address whether other employees who might be providing sporadic or transient work on the platform after construction and start-up were completed should be included or excluded.

To take a simplistic example, it did not address whether workers employed by, say, an on-shore plumbing company to respond to a specific problem on the platform and who might not be back again for an extended period of time (or ever), and in the meantime might be working elsewhere on shore on jobs unrelated to the platform, would have a sufficient “community of interest” (to use the words employed by Cooper justifying the recommended single bargaining unit) to justify inclusion in that bargaining unit.

It is this latter question, however, which has come to the fore in the current application. [ 14 ] While it is true that Cooper did recommend in his report that “a strong case emerges for the imposition of a single bargaining unit encompassing all employees” [p. 29; my emphasis], that comment was made in the context of a discussion relating to whether there should be an exclusion of professional employees, like engineers, geologists and geophysicists, from the bargaining unit. He concluded that professionals should not be excluded.

It is questionable how much one can extrapolate from such statements for the purpose of determining whether Cooper intended that other transient workers, working on the platform following start-up, should also be treated the same as construction and start-up workers and excluded from or included in the bargaining regime. [ 15 ] Considerable argument during the appeal in this Court was directed to what could be extrapolated from the Cooper Report as to what he had intended the ultimate bargaining regime on the platform to look like.

It must be remembered, however, that while the Cooper Report was the genesis of the amendments to the Labour Relations Act and may be helpful as legislative history, at the end of the day it is the actual language in s. 38.1 that has to be interpreted and applied. (

c) The Certification Decision [ 16 ] In determining, for certification purposes, which workers should be included within the statutorily-defined bargaining unit, described in s. 38.1 as “all the employees employed on the platform” (except those in construction and start-up work), the Board concluded that the intent of s. 38.1 was: … to avoid multiple bargaining units.

Employees with a significant attachment to the platform, who return for work for more than one tour of duty on the platform and who perform work similar to the steady state workforce, should not be placed in a position where they would be excluded from the platform bargaining unit. [ 17 ] In reaching this conclusion, the Board rejected the submission of Hibernia Management and Development Company Limited (HMDC) that “ad hoc” employees were not “employed on the platform” within s. 38.1 because they had no attachment to the workforce; they were laid off at the end of their tour of duty with no commitment to be recalled and with freedom to work elsewhere without any commitment to be available for recall.

The Board concluded, instead, that: … this difference in terms of employment between ad hoc and steady state employees is not a reason to exclude the ad hoc employees from the bargaining unit. Although there may not be a commitment to recall an ad hoc employee following layoff, most of the ad hoc employees are recalled to multiple tours of duty.

[ 18 ] That conclusion led to the formulation of a test based on an actual “significant attachment” to the platform regardless of the legal or specific long term commitment to platform work. The Board then proceeded to “review the number of days worked by each of the ad hoc employees to determine which of those employees have a significant attachment to the platform.” To do so, it became necessary, as is the case in most certification applications, to determine the time period during which the investigation into whether a given employee met the bargaining unit criteria was to be undertaken.

Further, within that time period, once determined, it was necessary to determine a test that would assist in identifying whether the degree of attachment was “significant” in a given case. [ 19 ] The Board chose its investigation-testing period to be the 90 day period prior to the date of receipt of the application for certification.

Its rationale for doing so was that “90 days is also the period of time considered by the Board under Rule 49(1) of the Labour Relations Board Rules of Procedure , within which to determine the validity of any membership card for the purpose of determining membership in good standing with the Union.” [ 20 ] To determine whether attachment within the 90-day period was significant in a given case, the Board concluded that the number of days of work should involve more than one tour of duty (which, subject to weather or transportation problems, was 21 days) within the period.

It concluded: The Board has considered 24 days within 90 days to be a reasonable indication of significant attachment to the platform. Twenty four days represents one half of the maximum number of days [that are allowed to be worked within a 90-day period], and more than one tour of duty. One tour of duty within 90 days would not usually indicate a significant attachment. [ 21 ] Having made those rulings, the Board went on and applied the 24/90 test to each of the positions in dispute and made determinations as to whether they fell within or outside of the bargaining unit.

It is worth noting, however, that the Board observed that the 24/90 test was not “absolute”: The above criteria applied by the Board to establish significant attachment are not absolute. In the event the Board finds there are factors to justify including or excluding a particular employee on the basis of significant attachment to the platform then the Board will take those factors into account.

There is no evidence of such factors with respect to these ad hoc employees. [ 22 ] Although the Board determined that it was not necessary to depart from the 24/90 test in respect of the degree of attachment of the ad hoc employees to the platform, it did so in respect of certain other employees, who were involved in provision of well services. These employees did not necessarily meet the 24/90 criterion with respect to tours of duty on the platform.

Nevertheless, the Board concluded that the nature of their work onshore, which involved pre-job preparation and post-job reporting, amongst other things, meant that these positions were “dedicated to the Hibernia platform and part of the established role complement.” Accordingly, they had “a significant attachment to the platform, having regard to their offshore days, bump days and shop days” and were to be included as “employed on the platform” within s. 38.1 for the purposes of certification. [ 23 ] The forgoing analysis and rulings of the Board relative to certification figured prominently in the Board decision that is under consideration in the current appeal.

In view of the fact that the issues that arose before the Board in the current matter did not arise in the context of a certification application, a fundamental question is whether the tests formulated in the Certification Decision can be said to have any meaningful application in the present context. (

d) The Labour Relations Board Decision [ 24 ] The issue in dispute in this case came before the Board in two stages. Following Unifor’s application for a declaration that the employers in question should be required to be members of the employers’ organization pursuant to s. 56.1 and were bound by the applicable collective agreement, HMDC made a preliminary application to the Board for a determination as to whether the remedy sought by Unifor could be obtained through sections 17 and 18 of the Act.

It submitted that what Unifor was trying to do was to amend membership in HPEO in a manner that was not permitted by s. 38.1. In HMDC’s submission, the employers who, following certification, were required to become members of HPEO, were only those who were employers at the time of the certification order. Accordingly, HPEO was not required to add other employers as members of its organization who may subsequently be employing workers on the platform.

HPEO relied on s. 56.1 which placed an obligation on the operator of the platform (in this case, HMDC) to form an organization (in this case, HPEO) of all “employers of employees affected by the application ” (emphasis added), that is, the certification application. [ 25 ] In response, Unifor argued, relying on the Certification Decision’s endorsement of the intent of s. 38.1 being to avoid multiple bargaining units on the platform, that it was implicit from the legislation that all employees employed on the platform are meant to be members of the bargaining unit, and hence the employers of those employees would have to be members of the employers’ association whether before, at or after certification. [ 26 ] The Board sided with Unifor’s position ( Communications, Energy and Paperworkers Union of Canada, Local 60N v.

Hibernia Management Development Company Limited and Hibernia Platform Employers’ Organization [2011] L.R.B.D. No. 6; hereinafter, the Preliminary Ruling ). It held that it was never intended that membership in HPEO would be static or that there should be two types of employers on the platform, those who abided by the collective agreement and those who did not: “the purpose of HPEO’s existence is to act as bargaining agent for all employers on the Hibernia platform” [Emphasis in original].

The Board concluded: [67] The current situation on the platform appears to be that there are employers (at least 7) who have employees working on that platform and those employers may be employing those employees outside the terms of the Collective Agreement. This is exactly the situation

Section 38.1 was created to avoid. … [75] Sections 17 and 18 when read together, grant the Board the authority to hear the Application brought by the union in this instance. To the extent that the merits of the application were argued in this case, the board finds that the Hibernia platform is an organized worksite and members of the bargaining unit on that site are pursuant to

Section 56.1 represented by [Unifor] and are subject to the

collective agreement between CEP [the predecessor to Unifor] and HPEO.

Employers who employ employees on that site are bound to become members of the HPEO and their rights and interests are to be negotiated by HPEO in the collective agreement processes. [ 27 ] HPEO sought reconsideration of this preliminary ruling but it was rejected and no separate judicial review of those decisions was sought. [ 28 ] Having concluded that membership in HPEO included employers who had become employers of employees employed on the platform subsequent to the certification order, the Board then set a hearing to determine “remaining issues” relating to whether the Board should compel specific employers to become members of HPEO on the basis that their employees were “employed on the platform” within s. 38.1(1). [ 29 ] In addressing that question at the subsequent hearing, as noted at the beginning of these reasons, the Board, by a majority, applied the significant attachment principle and 24/90 test that had been developed in the Certification Decision.

For the purposes of the application of the 24/90 test, the majority selected the 90 day period immediately prior to Unifor’s filing its initial application for determination of the employers’ status. [ 30 ] The Board explained its decision to select the 90 day period: [16] In an effort to identify potential employers of employees on the platform, i.e. those who would be affected by this application, the Board ordered that HMDC provide a list of Persons on Board (POB) Hibernia for a 90-day period in 2010.

The Board selected the 90 days prior to the Union filing the application in file 5280 [the file number relating to the Preliminary Ruling referred to earlier] as a random 90-day period to review which persons or positions were on board on an average day during an average period of time.

While the parties argued that this was not providing a true picture of who or what positions were on board throughout the course of a full year, it was meant to provide the Board with a sampling of what positions on the platform were part of the day to day role complement in order to help determine whether these employees were “employed on the platform” and therefore ought to be included in the bargaining unit.

In other words, the Board wanted to assess, as was discussed in the [ Certification Decision ], whether those positions are ones that are “ dedicated to the Hibernia platform and part of the established role complement, ” and whether those employees have a significant attachment to the platform….

HMDC provided the list of persons on board during that 90-day period and provided a list of the employers who had employees on Hibernia for 24 out of those 90 days during that period. [17] In using a sample of time, the Board is aware that it may not have captured every employer of employees on the platform and may not have obtained a list of exactly every individual or position who has been on Hibernia since 2010.

However, the purpose of the order was to try and ascertain who and what positions were being affected by the Union’s application in this matter and what employees were employed on the platform. (Emphasis in original.) [ 31 ] From the foregoing, it is clear that the Board recognized the limitations of a 90-day window for scrutinizing evidence of significant attachment. It purported to treat the snapshot of that period’s evidence as a “sampling” of what positions were part of the “day to day role complement” of the platform.

There is nothing to indicate that the Board was banishing from its consideration, or refusing any party from presenting, any other evidence that could reasonably be said to be directed to the issues of work-dedication to the platform in respect of specific workers, in the sense of being part of the “established role complement.” [ 32 ] HMDC and the other respondents argued that the individuals employed by the employers under scrutiny did not share a community of interest with the employees already in the bargaining unit because they did not have fixed rotations, did not have fixed end dates of work, did not spend all their time on board actually working and did not receive priority with respect to transportation to and from the platform.

As well, they were paid in a different format, involving day rates and the platform was not their primary or sole place of employment (LRB Decision, para 181). As such, it was argued, they were not part of the core workforce.

The Board approached the matter by asking the question: Do the employees of the intervenors have a longer term interest in the terms and conditions of employment on Hibernia like the members of the bargaining unit do? [ 33 ] The Board relied on the Certification Decision’s determination to include ad hoc employees within the bargaining unit even though they may not have had a long term continuing employment relationship on the platform.

They, in the Board’s view, could, depending on how frequent was their contact with the platform (defined by the 24/90 test), be said to have a “significant attachment” to the platform. [ 34 ] The Board applied that analysis to the current case and it held that employees of Belfor, Halliburton, Import Tool, Spectrol, Tam International and Vallourec did not have a significant attachment in respect of the positions in question and hence were excluded from the bargaining unit, with the consequence that their respective employers did not have to become members of HPEO by virtue of the presence of their positions.

In the case of the employees’ positions of Crosbie Salamis, on the other hand, a significant attachment was demonstrated and membership of the company in HPEO was therefore mandated. With respect to Baker and Wood Group some of their employees’ positions were determined to have a significant attachment and some were not. Because Baker and Wood Group had some employees who were in the bargaining unit, they also had to become members of HPEO. The Judicial Review Application [ 35 ] Unifor sought judicial review of the Board’s ultimate decision. It submitted that: 1.

The Board lacked jurisdiction and was functus officio with respect to the determination of which employees should be in the bargaining unit and hence which employers were required to be members of HPEO. Unifor advanced this argument on two bases: (

i) The issue had already been settled by the Board’s Preliminary Ruling when it had ruled that “ all subsequent employers would automatically become members of the HPEO”;

(ii) The Act defined the bargaining unit as “ all the employees employed on the platform except…” construction and start-up employees and therefore on a plain reading of the language of s. 38.1 the bargaining regime and the resulting collective agreement applied to all employees who were not construction and start up personnel, and hence, to their employers. 2. The Board’s decision was unreasonable and should be set aside because: (

i) The test applied by the Board ignored the plain language of the statute and disregarded the purpose and intent of the legislature; (ii) The Board unreasonably applied a community of interest test that had no application to a statutorily-defined bargaining unit; (iii) There was no justification for using a 90-day evidence-gathering period because its use undermined the entire legislative scheme; (iv) The 24/90 test for determining attachment to the platform as developed in the Certification Decision in the context of a certification application has no relevance or application to the issue of which employers are required to be a member of HPEO; (

v) The decision was not responsive to Unifor’s arguments. The applications judge rejected all of Unifor’s arguments and denied the application for judicial review. The Appeal (

a) Focus of the Appeal [ 36 ] Unifor advances on this appeal essentially the same arguments presented to the judge, although they have been packaged in a different way. Underlying most of the arguments is the submission that the

interpretation placed on s. 38.1 of the Act by the Board – and accepted by the judge - is unreasonable because it cannot be justified by any reasonable construction of the legislation once proper principles of

interpretation are applied. [ 37 ] Although the standard of judicial review to be applied by the judge to the tribunal decision under review is generally a standard of reasonableness – a position also accepted by the parties to this appeal - the standard of appellate review of the judicial review judge’s decision is different. This Court will review the judge’s decision against a standard of correctness.

Thus, if this Court disagrees with the judge’s conclusions as to whether the tribunal’s decision is reasonable (applying, of course, the proper test for determining reasonableness), it may substitute its own conclusion on that matter ( Agrairav. Canada (Minister of Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 at paras. 45-46 ; Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23 , per Deschamps J. at para 247; Burke v. NLAPPE 2010 NLCA 12 , 294 Nfld. & P.E.I.R. 230 at paras 49-50 ).

I note in passing that this approach has recently been the subject of some criticism: Ashley Bowron, “Reviewing the Reviewer: The Role of Appellate Courts in Judicial Review” (2019) 50:1 Advocates Quarterly 18. [ 38 ] In the current case, Unifor submits that this is not simply a case of whether the Board, in interpreting its home statute, gave it an

interpretation it could reasonably bear. Rather, it is argued, where the tribunal ascribes meaning to a legislative provision that cannot be supported under applicable principles of statutory

interpretation, that

interpretation is necessarily unreasonable. Unifor submits that the judge erred in law by applying wrong interpretive principles and in concluding that the Board’s decision was reasonable; accordingly, Unifor argues, the judge’s decision must therefore be set aside. In taking this position, Unifor relies on decisions of the Supreme Court of Canada in McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895 and Wilson v.

Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 S.C.R. 770 . [ 39 ] Unifor cites Wilson for the propositions that the reasonableness of a decision must be assessed by reference to the legislation being considered and that a decision can be unreasonable if it ascribes meaning to a legislative provision that cannot be supported under proper principles of statutory

interpretation. [ 40 ] In McLean , the Court held that the principle of deference to a tribunal decision cannot justify upholding an unreasonable statutory

interpretation: [38] It will not always be the case that a particular provision permits multiple reasonable

interpretations. Where the ordinary tools of statutory

interpretation lead to a single reasonable

interpretation and the administrative decision-maker adopts a different

interpretation, its

interpretation is necessarily unreasonable – no degree of deference can justify its acceptance. … In those cases, the “range of reasonable outcomes” … will necessarily be limited to a single reasonable

interpretation – and the administrative decision maker must adopt it. [ 41 ] This surely follows from the application of the rule of law. If there is no room for reasonable debate as to what a statutory provision means, then the administrative decision maker, bound, as all state institutions are, to observe the rule of law, must comply with the law and apply the statute accordingly. It is only when multiple decisions can be made within a zone of more than one reasonable

interpretation that it is justifiable to defer to the expertise and front-line policy familiarity and practical knowledge of the tribunal. [ 42 ] However, the principles of statutory

interpretation do not always lead inexorably to a single clear answer. They will often be susceptible to multiple reasonable

interpretations that involve judgment on the part of the interpreter as to what will advance, or at least not hinder, the perceived overall statutory objective of the legislative provision and also comport with the interpreter’s perception of fairness in the context of the provision’s application. In such cases, deference is due to the administrative decision maker’s decision. The burden is on the person seeking judicial review to show not only that his or her alternative

interpretation is reasonable but also that the tribunal’s

interpretation is unreasonable and there is no other reasonable

interpretation. [ 43 ] If this cannot be shown, then when it comes to interpreting its home statute, the tribunal’s decision should be shown deference if it is one of a range of decisions that is “defensible in respect of the facts and the law” (per Bastarache and LeBel JJ. in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , para. 47 ; Alberta (Information and Privacy Commissioner v. Alberta Teachers

Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , per Rothstein J. at paras. 30-39; Locke’s Electrical Ltd. v Newfoundland and Labrador (Labour Relations Board) , 2011 NLCA 40 at para 12 ). As noted in McLean : [33] The answer, as this Court has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable

interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker – not the courts – to make. Indeed, the exercise of that interpretive discretion is part of an administrative decision maker’s expertise. [ 44 ] In this case, the question under consideration is whether the judge erred in her conclusion that there were reasonable competing

interpretations of the legislation. If so, and this Court concludes that there was only one reasonable

interpretation available (and that that

interpretation is the one advanced by Unifor), this Court can and should overturn the judge’s decision and set aside the Board’s decision to the extent that it is not based on that proper

interpretation. [ 45 ] To determine that in the context of this case, it is necessary to examine whether the judge identified and applied proper principles in interpreting the Act and, if not, whether, applying proper principles, Unifor’s proposed

interpretation is the only reasonable one available. [ 46 ] If both

interpretations find support in the text, context and purpose of the statute, both

interpretations will be considered to be reasonable. (

b) Interpretation of

Section 38.1 [ 47 ] In Wilson , a majority of the Supreme Court reiterated that a standard of reasonableness applies when a court is reviewing decisions of labour adjudicators acting under and interpreting the Canada Labour Code, R.S.C. 1985, c. L-2 within their areas of expertise.

The majority concluded that the Code , properly interpreted, justified, on a reasonableness standard, the original adjudicator’s conclusion that the Code permitted the adjudicator to determine whether a dismissal was unjust even though at common law an employer was entitled to dismiss without cause on payment of reasonable compensation. In arriving at that conclusion, Abella J., for the majority on this point, noted that the reasonableness of the decision being reviewed must be assessed in the specific context under review and by reference to the specific legislation being considered.

The interpreter must apply proper principles of statutory

interpretation and the fact that there may be two or more previous conflicting lines of authority in the jurisprudence does not necessarily lead to the conclusion that both approaches are reasonable. [ 48 ] The judge in the current case summarized the

interpretation issue that faced the Board as follows: [36] The Board then addressed the arguments of the parties on the appropriate

interpretation of the phrase “employees employed on the platform”. In the course of this exercise the Board acknowledged Unifor’s suggestion that the language of

section 38.1 was virtually identical to the recommendation made by the Cooper Report and meant the same thing. [Unifor’s]

interpretation (it asserted) permitted the Board very little discretion to exclude employers [sic] from the bargaining unit. It maintained that the exclusion must be limited to employers and employees involved only in startup and/or construction. [37] The Board disagreed with Unifor’s position on the limited discretion to exclude employers and it approved the

interpretation given to the phrase “employees employed on the platform” in [the Certification Decision ]. This

interpretation, it concluded, met the statutory intention and objective of avoiding the possibility of multiple bargaining units on the platform. [ 49 ] In addressing whether the Board’s rejection of the Unifor interpretive position led to an unreasonable result, the judge noted that the Board acknowledged what she called the “basic rule of

interpretation” as being that “legislation should be read in its entire context, in its grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament”, as well as the presumption against tautology (paragraph 39). In engaging in her own

interpretation of the applicable legislative provisions later in her reasons, the judge referred to decisions of this Court in Lynch v. St. John’s (City), 2016 NLCA 35 and Archaen Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43 as setting out the correct approach to

interpretation of statutes in this province. She noted that the intention of the legislature is to be discerned “by reference to all relevant sources of meaning, including the words used, the statutory context, the Court’s knowledge of the pre-existing law, social context, the perceived mischief that caused the government (or private member) to act by introducing the bill into the legislature and the legislative history” ( Lynch , paragraph 75 ). [ 50 ] In concluding that the Board majority “chose an

interpretation of s. 38.1 that the words of the

section could bear”, the judge determined that: [119] In interpreting the legislation discerning the intention of the legislature, I conclude that the majority of the Board considered all relevant sources of meaning for s. 38.1, including the words used, the statutory context, the Cooper Report, Hansard, the offshore oil production context, the perceived mischief sought to be avoided by the section, and the guidance from the [ Certification Decision ]. [120] In the analysis that followed, it is apparent that the Board did not ignore the language of the legislation and was live to the fact that the bargaining unit was defined by statute. [ 51 ] Unifor, however, submits that the approach of the judge to assessing the Board’s

interpretation of the Act was flawed and that the application of proper interpretive principles leads inexorably to the conclusion that the judge’s agreement with the Board’s approach was in error and could not be a reasonable

interpretation of

section 38.1. [ 52 ] Unifor says that the judge, in reality, wrongly adopted an approach to

interpretation based on the jurisprudence relating to collective agreement

interpretation rather than statutory

interpretation. This argument is based on the judge’s reference to the decision of this Court in Layman v. Layman Estate , 2016 NLCA 13 . That case involved judicial review of the decision of a consensual arbitrator. The decision discussed the applicable standard of judicial review and also addressed the approach by the arbitrator to

interpretation of the underlying contract.

[ 53 ] The judge cited and relied on Layman for its discussion of the applicable standard of review (reasonableness) and concluded that the question before her was “whether the

interpretation of ss. 38.1 and 56 of the Act adopted by the majority of the Board was reasonable in light of the facts and the law” (paragraph 107). There is nothing objectionable to her use of Layman for that purpose. She did not, however, purport to rely on Layman for the purpose of extrapolating and applying appropriate principles of

interpretation. This is a different, and subsequent, question. She relied on Lynch and Archean for that exercise. Having determined that the standard of review was reasonableness, she then had to test the

interpretation of the statute adopted by the Board against a proper application of principles of statutory

interpretation to determine whether the Board’s

interpretation was one that the statute could reasonably bear. This is what she did. She in effect concluded that the

interpretation adopted by the Board was not reached in a manner inconsistent with basic statutory

interpretation principles and therefore met the applicable standard of reasonableness. The judge therefore did not err in respect of the approach to

interpretation that she adopted. [ 54 ] Unifor goes further, however, and says that, even if the judge’s approach to

interpretation could not be faulted, the decision reached by the Board could not, applying proper principles, be justified as a reasonable decision in any event. There is in effect, submitted Unifor, only one justifiable

interpretation of the language in

section 38.1 which leads to the conclusion that all employers who employ employees who work on the platform, other than original construction and start-up personnel, no matter how sporadically or in what circumstances, are required to be members of HPEO and are bound by the platform collective agreement. [ 55 ] It is necessary, therefore, to address the

interpretation of

section 38.1 and to consider whether there is only one reasonable

interpretation of that provision and whether that

interpretation is the one advanced by Unifor. (

i) Language [ 56 ] Unifor relies, firstly, on what it says are the plain words of

section 38.1(1). The subsection only purports to exclude construction and start-up personnel. By implication, it says, all other employees are included in the bargaining unit. This is buttressed, it says, by the definition of “employee” in

section 2(

m) of the Act : “employee” means a person employed to do skilled or unskilled manual, clerical or technical work and includes a professional employee and a dependent contractor but does not include a manager or superintendent or other person who, in the opinion of the board, exercises management functions or is employed in a confidential capacity in matters relating to labour relations. [ 57 ] On its face, it was argued, the term “employee” in

section 38.1 should include all workers who do not fall within the management and confidential exceptions mentioned in the definition. When combined with the limited exclusionary reference in s. 38.1 to construction and start up personnel and the absence of any reference to “significant attachment” or minimum amount of time spent on the platform, it followed, so it was said, that all other employees were encompassed by the statutorily-defined bargaining unit.

Unifor’s position is summed up in the following submission: “Once an employer employs a single person on the platform for a single day, it falls within the statutory definition of the bargaining unit” (Appellant’s Factum, paragraph 80). [ 58 ] However, the issue for the Board in the decision under review, as it was in the Certification Decision , was not so much the meaning to be ascribed to the word “employee” in the abstract but to the phrase “employees employed on the platform”, with the emphasis on “ employed on ”. The judge agreed with and relied on this distinction.

In response to Unifor’s argument that unless “employee” was to be given its natural comprehensive meaning to ensure that all workers on the platform were covered by the collective bargaining regime the decision would be unreasonable, the judge responded: [69] Unifor asserts that this result is clearly unreasonable. [70] In this regard, Unifor’s position places the focus on the word “employee” whereas the Board determined the issue required

interpretation of the phrase “employed on.” [71] I disagree with Unifor’s position on the question that the Board was required to address. [72] The enquiry required was for “employees employed on the platform” whose employers were required to join the HPEO pursuant to s. 38.1 and 56.1 of the Act. The predominant challenge was not (for example) whether employees were to be characterized as skilled workers or instead employed in a confidential capacity in relation to labour relations.

The dispute centered on whether the employees had a sufficient attachment to the platform to be considered “employees employed on” the platform. (Emphasis added.) [ 59 ] Viewed from this perspective, the notion of being an employee “ employed on ” the platform introduced a potentially limiting dimension. It raised the question of what employment “on” the platform meant. Did it mean that any physical presence on the platform, involving the performance of any work, no matter how transitory or peripheral, was a sufficient connection with or attachment to the platform to engage the collective bargaining regime?

Would, for example, an employee of the Canada-Newfoundland & Labrador Offshore Petroleum Board who happened to visit the platform for a day to perform inspection duties or to meet with management be considered to be employed on the platform? Or must there be some other more substantial connection? Unifor conceded that some employees who set foot on the platform, such as those who were there “not in connection with the operation of the platform”, e.g. a journalist visiting the platform to cover a news story (Appellant’s Factum, paragraph 23) would not be caught by

section 38.1. However, it maintained that “a worker who attended the platform for only one day would be part of the bargaining unit if the worker was on the platform in connection with the operations of the platform ” (emphasis added). [ 60 ] It was this question of what the legislature meant when referring to being “employed on” the platform which led the Board to conclude that a “significant attachment” test could and should operate to give meaning to that notion.

The judge quoted the Board’s analysis at paragraph 103 of her decision: [201] … If asked where he worked, would the employee be able to say, “I work on Hibernia”? Does the employee earn her living on Hibernia, or does she earn her living on Hibernia as one of numerous other installations? Put another way, is Hibernia their place of

work, or is it a place they happen to be working this week or whenever they get a call to go there and can fit it in their schedule? These are some of the considerations to think about when determining whether they are “employed on the platform.” The only way to determine whether someone is “employed on the platform” is to consider that individual employee and whether his or her position has a significant attachment to the platform. [ 61 ] In its majority reasons, the Board also made the following observations: [202] … this is not a “boots on the platform” bargaining unit.

Not every single person who steps on Hibernia to do a day’s work there is a member of the bargaining unit. The question to consider is whether that person is employed there. CEP [the predecessor of Unifor at the time of the Board application] has agreed that individuals who attend the platform to perform inspections from time to time, such as members of the regulator (CNLOPB), and other government inspectors of the installation, do not become members of the platform-wide bargaining unit the minute they set foot on the platform.

The HPEO and HRDC and intervenors recognize that it is easy to determine that a regular-rotation employee is a member of the bargaining unit unless that employee is management.

The question comes with respect to those in the middle. (Underlining in original; italics added.) [ 62 ] This recognized that there was room for debate as to just what scope was to be given to the phrase “employees employed on the platform” even if one were to focus only on the language of the legislation without considering other sources of meaning that are also resorted to in the interpretive exercise. [ 63 ] Later in her reasons the judge declared that she was “satisfied” with the Board’s analysis as described in paragraph 201 of the Board’s reasons (Judgment, paragraph 121).

I, also, am satisfied that this was a reasonable way to interpret and breathe practical life into the phrase “employees employed on the platform” within

section 38.1. It cannot be said that the Board’s focus on the phrase “employees employed on” in

section 38.1, as opposed to focusing on the defined literal meaning of the word “employee” was unreasonable in the circumstances.

Nor can it be said that the use of a notion of significant attachment, as flowing from the words of being employed “on” the platform was an unreasonable use of the language, given the fact that the phrase “employed on” itself contemplated some sort of demarcation between those whom the legislature intended to include within the statutorily-defined bargaining unit and those who were not to be so included even though they could be described as persons whose “boots” touched the platform. [ 64 ] This analysis also provides the answer to Unifor’s further submission that the significant attachment test had no role in determining the issue faced by the Board because it was adopted from the Board’s previous Certification Decision where the issues were different.

Both the Board and the judge recognized that the contexts of the two decisions were not the same (Board Decision, paragraph 209; Judgment, paragraph 74-76); nevertheless, quite apart from its relevance to the issues in the Certification Decision , it is clear that it also has relevance in giving practical meaning to the notion of being “employed on” the platform for other purposes, such as determining when employers of such employees would have to be members of HPEO. [ 65 ] Furthermore, there is a certain logic in having the same test for determining who is in the statutory bargaining unit when determining the issue of who has the right to vote with respect to certification and who is in the unit from time to time thereafter for the purpose of determining who could claim benefits and who was subject to the obligations of the collective bargaining relationship resulting from that certification.

Indeed, it would be odd if the tests were not the same. The Board alluded to this when the majority stated: [209] The Union appears to be arguing that the criteria used to determine membership in the bargaining unit for the purpose of voting for membership in that bargaining unit ought not to be the same as the criteria used to determine membership in the bargaining unit now. There was no legal argument put forward to articulate the difference.

What makes an employee a member of a bargaining unit for the purposes of certification ought to be the same criteria used to determine whether another employee is a member of the bargaining [unit] in a subsequent analysis of what constitutes membership in that bargaining unit. There was no jurisprudence presented to the Board to show that it ought to use a different test. [ 66 ] The language of

section 38.1, therefore, does not support Unifor’s argument that the statutorily-defined bargaining unit necessarily encompasses every person except those involved in construction and start-up. (ii) Previous Statements as to the Scope of

section 38.1 [ 67 ] In asserting an “all-encompassing” scope of the bargaining unit defined in

section 38.1, Unifor also relied on the language in the Cooper Report and in other previous decisions of the Board which, it submitted, accepted that the bargaining unit included more than what would be permitted by a significant attachment test. [ 68 ] Although such statements are not binding on this Court or the judge, it is worth considering them in the context of the submission by Unifor that the Board’s decision is inconsistent with previous interpretative approaches and is therefore unreasonable. [ 69 ] It will be recalled that, in dealing with the issues before him, Cooper used language that, taken out of context, talked of “all” employees (except start-up and construction personnel) being included in the bargaining unit.

Since the Labour Relations Act amendments were based on the Cooper Report, it followed, so Unifor argued, that “employees employed on the platform” should reflect that all-encompassing approach. I do not accept this submission. First, the language used by Cooper must be read and considered in the context of what he was addressing. He was dealing primarily with whether there was a distinction between operations personnel and those in construction and start-up (the latter groups to be excluded) and between professional and other personnel (both groups to be included).

He did not expressly deal with the question of whether there should be some defining characteristic that would otherwise determine whether a particular worker was to be considered within or without the bargaining unit for other ongoing purposes. To read Cooper’s words more comprehensively is to give too great a controlling weight to his report with respect to

interpretation of

section 38.1 generally. [ 70 ] Secondly and more importantly, however, the fact that there was a difference in the critical language chosen by the legislature in

section 38.1, as opposed to the language in the Cooper Report is telling.

Even if Cooper’s language in his recommendation (“all employees on…”) could be read as meaning that every person whose boots touched the platform in relation to platform operations was to be included in the bargaining unit, the fact that the legislature chose different language (“all employees employed on…”) suggests that the legislature was departing from a physical presence test and, instead, was tying unit membership to a relationship based on a type of employment, which required an investigation as to what the nature and extent of that relationship was in a given case.

Accordingly, reliance on the Cooper Report is not helpful to Unifor’s case on this point. [ 71 ] Unifor also relied on statements by the Board in the Preliminary Ruling to the effect that it was never intended that membership in HPEO would be static or that there would be two categories of employers on the platform (i.e. some bound by the collective agreement and some not) as indicating that the Board itself regarded the bargaining unit as all-encompassing.

This was buttressed further, it was submitted, by the conclusion reached in the Preliminary Ruling that the purpose of HPEO was “to act as bargaining agent for all employers” on the platform. Like reliance on the Cooper Report , this reads too much into the language without reference to context and the issue under consideration. The Preliminary Ruling responded to HMDC’s argument that HPEO membership only encompassed employers who employed workers at the time of the certification application. The Board rejected that

interpretation and concluded that HPEO membership encompassed employers who subsequently employed workers on the platform. It did not address the question at that time of what would encompass “employees employed on the platform” as a means of identifying those employers of such employees for the purpose of determining membership in HPEO. That is evident from the Board’s statement that “employers who employ employees on that site are bound to become members of HPEO.” Which specific employers, and how they were to be identified, was not addressed.

That was the very issue that was left to the decision that ultimately was subjected to judicial review and is the subject of this appeal. As the Board stated in its decision that is now under challenge, “nowhere in [the Preliminary Ruling ] did the Board or HPEO state that every individual worker on the Hibernia platform was to be considered a member of the bargaining unit” (paragraph 169). I agree with this conclusion.

The matter remained open. [ 72 ] Unifor further relied on statements and conclusions of the Board in the case under appeal as indicating that the Board’s adoption of a substantial attachment gloss on

section 38.1 was inconsistent with the Board’s own supporting analysis. For example, the Board accepted that the legislature based its amendments on the “desirability of establishing a single bargaining unit on the offshore production platform” based on a “unique community of interest” with a view to preventing a fragmented workforce on the platform. Such general language, employed when discussing the overall purpose of the legislation, cannot be extrapolated as if it were itself a legislative provision that should be rigidly applied in all circumstances without consideration of context.

It does not follow that a physical “boots on the platform” test was necessarily intended to apply without exception when considering the actual language chosen which, as indicated above, suggests a more nuanced test for determining just who was to be included within the notion of “employees employed on ” the platform. It is those employees (and, by implication, not others who still might be on the platform) that were intended to be part of an un- fragmented workforce.

The language used by the Board in its analysis is not inconsistent with the conclusions it reached. [ 73 ] Even though the Board adopted the significant attachment principle for the purposes of the Certification Decision , Unifor argued that applying the significant attachment principle in the context of the issues in the current case was unreasonable because doing so “contradicted all material conclusions of law made by the Board” in the Certification Decision (Appellant’s Factum, paragraph 75).

In particular, Unifor relied on the Board’s observations in the Certification Decision to the effect that “there is no issue before the Board with respect to determination of the appropriate bargaining unit” because it was statutorily defined, thereby eliminating the need to engage in a “community of interest” analysis to determine the scope of the unit.

This indicated, it was argued, that the Board recognized that the determination of the scope of the bargaining unit was pre-determined in favour of including everybody except those specifically excluded by the legislation. [ 74 ] As well, Unifor referred to the statement by the Board (accepted by the judge as the “essence” of the Certification Decision ) that given the intent of

section 38.1 to “avoid multiple bargaining units”, … [e]mployees with a significant attachment to the platform, who return to work for more than one tour of duty on the platform and who perform work similar to the steady state workforce, should not be placed in a position where they would be excluded from the bargaining unit. [ 75 ] From this, it was argued, the Board accepted that the legislation should not operate to exclude workers who return to the platform and perform the same type of work and tasks as unionized employees, but for different employers regardless of the amount of time they spend there (Appellant’s Factum, paragraphs 74-75), leading to the conclusion that the bargaining unit was intended to be all- encompassing. [ 76 ] Neither of these submissions based on the reasoning in the Certification Decision assists Unifor’s position.

The fact that the legislature has defined the bargaining unit rather than leaving it to the Board to decide, as would usually be the case, does not eliminate the necessity of the Board and the judge to interpret what s. 38.1 means with respect to the scope of the bargaining unit that the legislature intended to create. It is the phrase “employees employed on the platform” that determines who is in the unit and who is not. That is a question that is still open to

interpretation by the Board. The Certification Decision and the judge recognized this. [ 77 ] Further, the notion that employees who perform similar types of work should be included in the bargaining unit regardless of their employer, so as to avoid multiple bargaining units, was enunciated by the Board as the basis for a single bargaining unit once the significant attachment principle had been applied.

In other words, having determined who were “employees employed on the platform” by application of the significant attachment principle, the Board was then simply acknowledging the importance of the policy of non- fragmentation. This is clear from the words quoted above that “employees with a significant attachment to the platform … should not be … excluded…” (emphasis added). Unifor’s overly-expansive

interpretation of the Board’s comments cannot be accepted. [ 78 ] There is no manifest inconsistency between the statements made in the Cooper Report and other Board decisions, and the

interpretation of s. 38.1 employing the significant attachment gloss, as applied by the Board and accepted by the judge. (iii) Purpose and Legislative History

[ 79 ] Unifor further submitted that an

interpretation of

section 38.1 that does not include all employees on the platform, excepting construction and start-up personnel, is unreasonable because such an

interpretation does not comport with the underlying purpose of the legislation. [ 80 ] Against the backdrop of the general purpose of the Labour Relations Act as being the facilitation of the rights of workers to associate and bargain collectively and the promotion of labour peace and stability, Unifor submitted that the purpose of sections 38.1 and 56.1 was to establish a single bargaining unit on an offshore production platform and that this purpose should inform the

interpretation of the language of

section 38.1.

In support of this submitted purpose, Unifor relied in part on the analysis in the Cooper Report , as earlier discussed, which had been generally accepted by the government, noting that the Minister introducing the amendments in the legislature stated that “we have incorporated the heart of the Morgan Cooper report” in the legislation (Newfoundland and Labrador House of Assembly, Hansard , 43rd General Assembly, 2nd Session, No. 52 December 16, 1997). [ 81 ] In further support of its submission, Unifor relied on statements in the Board’s decision in Re Communications, Energy and Paperworkers Union of Canada, Local 60N and Petro Canada , [2006] N.L.L.R.B.

No. 2 relating to the Terra Nova oil field on an application for certification dealing with whether certain employees were exempted from the bargaining unit because they were construction or start up employees.

The Board there laid stress on the Cooper Report’s reference to “the desirability of establishing a single bargaining unit on the offshore production platform, regardless of the number of employers operating on the platform” and the fact that, as previously noted, statements were made in the House of Assembly at the time of the debate on adoption of the amendments that they “incorporated the heart of the Morgan Cooper report.” [ 82 ] These generalized statements also do not advance Unifor’s case.

There are limits to how far reliance on the Cooper Report can be carried in this context to achieve a result that leads to only one interpretive conclusion within the scope of the McLean principle. While reflecting the fundamental philosophy of the Cooper Report , the amendments, as noted earlier, did not accept the Cooper recommendations in total, as reflected in the addition of an additional word used in the critical language in s. 38.1.

The language chosen by the legislature indicates that it was leaving it to the Board to determine, in a given case, whether the type, nature, frequency and duration of work on the platform could be said to amount to being “ employed on the platform.” As recognized by the Board and the judge, that requires something more than application of an arbitrary and rote physical presence test, no matter how transient and no matter what the circumstances surrounding the presence may be.

It required, as concluded by the Board, addressing the following considerations: [201] … If asked where he worked, would the employee be able to say : “I work on Hibernia”? Does the employee earn her living on Hibernia, or does she earn her living on Hibernia as one of numerous other installations? Put another way, is Hibernia their place of work, or is it the place they have to be working this week or whenever they get a call to go there and can fit it into their schedule?

These are some of the considerations to think about when determining whether someone is “employed on the platform.” The only way to determine whether someone is “employed on the platform” is to consider that individual employee and whether his or her position has a significant attachment to the platform. (Italics added.) [ 83 ] While one can divine a general underlying purpose of the amending legislation (the promotion of an unfragmented bargaining regime so as to achieve uniform regulation of working conditions on the platform), it is much more difficult to conclude that that general purpose must lead to a single meaning with respect to a particular legislative provision like s. 38.1.

It is only if a particular construction is inconsistent with and counterproductive to the underlying purpose that one can have confidence that the meaning indicated by the language alone is not the correct one. While an

interpretation which allows for some workers on the periphery of the core workforce to remain outside the bargaining unit (with, correspondingly, their employers not being members of HPEO), those are the ones who, by definition, have a marginal work connection to the platform (i.e. no significant attachment). The policy against exclusion of workers from a single bargaining unit does not necessarily apply to such workers because their lack of significant attachment means their work circumstances will not be the same as those of the core workforce in any event. [ 84 ] I am not satisfied that the

interpretation placed on s. 38.1 by the Board and the judge is inconsistent with the general purpose of the legislation. (iv) The Mischief to be Addressed [ 85 ] The approach to statutory

interpretation enunciated in this Court’s decisions in Lynch and Archean contemplates identifying, if possible, the “mischief” that caused the legislators to act by introducing the bill into the legislature. That can often be done by reference to any studies, white papers or reports that were previously submitted to government, as well as by statements of government ministers sponsoring the bill, statements of purpose in the bill or by the structure of the legislation itself. Identification of the perceived mischief can then be used to draw an inference as to the purpose or objective of the new provision.

In this case, the Cooper Report is relevant. [ 86 ] Although the judge did not specifically advert to the perceived mischief to which s. 38.1 was directed, it is apparent from the overall tenor of her reasons that she accepted that the mischief that was intended to be avoided by introducing a special labour relations regime on offshore oil production platforms was the potential for disruption of labour peace by fragmented bargaining resulting in differing treatment of employees even though their working environment was essentially the same.

This was to be achieved by, amongst other things, creating a single bargaining unit for “all employees employed on the platform” and by deeming one body to be the employer for those workers regardless of who actually employed them.

Section 38.1 should therefore be interpreted and applied in a manner that would work toward, rather than be counterproductive to, the overall objective of addressing that mischief. It must be remembered that the objective of preventing fragmented bargaining was expressed to be relevant to the group of people denominated as employees employed

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