Canadian Merchant Service Guild Applicant And: Her Majesty the Queen in Right of Newfoundland v. Labrador, represented by Treasury Board, 2021 NLSC 73

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Canadian Merchant Service Guild v. Newfoundland and Labrador (Treasury Board) , 2021 NLSC 73 Date : May 27, 2021 Docket : 201901G8144 Between: Canadian Merchant Service Guild Applicant And: Her Majesty the Queen in Right of Newfoundland and Labrador, represented by Treasury Board First Respondent And: The Newfoundland and Labrador Labour Relations Board Second Respondent Before: Justice Vikas Khaladkar On Judicial Review From: A Decision of The Newfoundland and Labrador Labour Relations Board, File #5729 (2019 L.R.B.D.

No. 11) dated the 13th day of September, 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 19, 2021

Summary: The decision of The Newfoundland and Labrador Labour Relations Board concerning the composition of the bargaining unit was upheld.

Appearances: Andrew R. Nielsen Appearing on behalf of the Applicant Suzanne M. Orsborn Appearing on behalf of the First Respondent Megan S. Reynolds Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 STATUTE CONSIDERED: Public Service Collective Bargaining Act, R.S.N.L. 1990, c.

P-42 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Canadian Merchant Service Guild (the “Guild”) applied to The Newfoundland and Labrador Labour Relations Board (the“LRB”) pursuant to sections 10, 32 and 45 of the Public Service Collective Bargaining Act, R.S.N.L. 1990, c.

P-42 (the “Act”) for adetermination as to which individuals are “employees” within the Guild bargaining unit working for the Respondent, Her Majesty theQueen in Right of Newfoundland and Labrador, represented by Treasury Board (“HMQ-TB”). [2] The Guild represents persons who captain the provincial ferries that provide transportation services for passengers and goodsto communities that are accessible only by boat. [3] HMQ-TB determined that 10 persons would be designated as essential employees.

This is because ferry captains work,typically, 14 days on and 14 days off or, alternatively, seven days on and seven days off. There are eight vessels that service five routes.In the event of a strike the number of vessels engaged would be reduced to five.

There would, then, need to be a minimum of 10 ferrycaptains to cover off the rotation for five vessels and five routes. [4] The Guild had argued that there were only about 16-18 persons who should be considered to be bargaining unit employees.The Guild argued that the rest were either retired, had taken full time jobs elsewhere or were former temporary workers and should notbe considered current members of the Guild bargaining unit. [5] Under section 10(6) of the Act, if a majority of employees in a unit are considered essential, then all of the employees in theunit are considered essential.

This provision is made in the legislation to allow certain labour disputes to be resolved by means of a boardof adjudication instead of a strike. [6] The Guild’s position is that by declaring 10 persons as essential workers HMQ-TB is allowed to gut the bargaining unit’sability to bring pressure upon the employer by withdrawing its labour services. It argues that, under such circumstances, disputes ought tobe referred to a board of adjudication. [7] The Guild argues that the LRB erred by failing to apply the modern approach to statutory

interpretation and, in particular,failed to interpret section 10(6) of the Act in light of its context and purpose. It says that by interpreting section 10(6) in a manner thatincludes inactive employees undermines the critical role that the

section plays in protecting the interests of the bargaining unit. [8] HMQ-TB argued that the degree of a person’s attachment to the Guild is not a relevant consideration in determining whether

that person should be included in the bargaining unit. [ 9 ] HMQ-TB argued that the LRB’s jurisdiction was limited by

section 45 of the Act to determining whether a person is an employee and whether the person is a member in good standing of an employee organization. [ 10 ] HMQ-TB submitted that there were 31 persons who occupied recognized classifications as either permanent or temporary employees as defined by the Collective Agreement. [ 11 ] The LRB said at paragraph 52 of its decision: … if an individual is employed by the Employer within one of the classifications within the bargaining unit then that individual is an employee.

That is the case whether or not that employee has purportedly retired, taken a position with another employer or has not worked in a period of time, as long as that individual’s employment has not been terminated as per the terms of the Collective Agreement. [ 12 ] The LRB referred to the Collective Agreement’s definition of termination at paragraph 49 of its decision: 2.01(s) [sic] “termination” means the final severance of employment due to: (

i) Resignation; (ii) Dismissal for cause without reinstatement; (iii) Lay-off for a period of more than two (2) years. [ 13 ] The LRB held that there were 31 employees in the bargaining unit. The LRB found that none of these persons had resigned, been dismissed for cause without reinstatement or been laid off for a period of more than 2 years. [ 14 ] The LRB held that there is nothing in the Act that limits an employee to being an individual other than an individual who is “employed”.

The LRB rejected the notion that the degree of an individual’s connection to the bargaining unit would be determinative of whether or not the person was an “employee” within the meaning of the Act . [ 15 ] The LRB held that the Collective Agreement made it clear that “all persons employed” should be considered to be employees so long as those persons work in the classifications contained in the bargaining unit. [ 16 ] The LRB noted that the Collective Agreement provided for “probationary employees”, “seasonal employees” and “temporary employees”.

These types of employees were not precluded from being considered employees because they were not actively working at a given time. [ 17 ] I find that the LRB’s path of reasoning, and its conclusion, are reasonable under the circumstances and, therefore, the Guild’s Application should be dismissed.

The following are my reasons for doing so. analysis [ 18 ] The following sections of the Act apply to the issues raised in this matter: 2. (1) (e) "collective agreement" means a written agreement entered into under this Act between the employer and a bargaining agent containing provisions respecting rates of pay and working conditions for the employees in a unit, and which binds the employer, the bargaining agent and the employees in the unit ; [Emphasis Added] (i) "employee" means a person employed by (

i) the government of the province, … 10. (1)Upon certification of a bargaining agent, or afterward, the employer of employees in the unit may or, where ordered to by the board upon an application being made to the board by the bargaining agent, shall provide the board and the bargaining agent with a written statement of the number of employees in each classification in the unit represented by the bargaining agent who are considered by the employer to be essential employees.

(6) Where a majority of the employees in a unit are considered or determined to be essential employees under this section, every employee within the unit shall be considered to be an essential employee for the purpose of this Act if the bargaining agent so advises the employer and the board. …

(1) Where … (

b) all employees in a unit are considered because of subsection 10(6) to be essential employees, and 14 days elapse from occurrence of either of the events specified in paragraphs 25(

a) and (b), the chairperson of the board shall immediately, by written notice to the employer and the bargaining agent, order that the matters in dispute between them be referred immediately to adjudication. … 35.

(1) A judgment is binding on the employer, the bargaining agent and on the employees in the unit and, unless the judgment provides for retroactivity as provided in subsection (2), effective from the date on which the judgment is given or a later date that may be stated in the judgment. This provision relates to the judgment of an Adjudication Board empaneled pursuant to s. 32(1). … 38.

(3) A collective agreement made under this Act is binding on and shall be implemented by the bargaining agent and employer, as parties to it, and the employees in the unit affected by it and remain in effect for the period provided for in subsection (1), or until replaced by another collective agreement or a judgment, whichever is the longer. [Emphasis added] 45.

(1) Where, in a proceeding before the board, or under an application made to it, a question arises under this Act as to whether (

a) a person is an employee; the board shall decide the question and its decision is final and binding.

(2) A decision or order of the board made under this Act is not open to review or question, but the board may, where it considers it advisable to do so, reconsider a decision or order made by it under this Act and may vary or revoke a decision or order so made by it. [ 19 ] Both parties agreed that the appropriate standard of review in this case, according to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , is reasonableness.

I agree. [ 20 ] The Guild argued that while the written reasons of the LRB appear coherent, and the reasoning path employed by the LRB looks rational, that beneath this veneer there is a disregard for the objects of the statute. The Guild submits that the LRB did not deal with the context of the statute. It is the Guild’s position that the LRB did not look at the purpose of the statute. [ 21 ] At paragraph 36 of its decision, the LRB said: There is nothing in the Act , which limits an employee to being an individual other than an individual who is “employed”.

That is, the degree of an individual’s connection to the Employer or the degree of an individual’s connection to the bargaining unit does not determine whether that individual is an “employee” under the Act . [ 22 ] The LRB held that in order to determine whether a person was an “employee” one had to have regard to the Collective Agreement – which defined “employee” as “all persons employed in the classifications contained in the bargaining unit”.

[ 23 ] The LRB held that the Collective Agreement defined “probationary”, “seasonal” and “temporary” employees in three classifications: Ferry Captain I, Ferry Captain II and Ferry Captain III. The LRB found that the

definitions of the three types of employees do not prohibit an individual from being considered to be an “employee” because of the nature of their employment or because they are not actively working at a given time. [ 24 ] The LRB went on to explain that a “seasonal” employee was one who provides services of a seasonal, but recurring, nature. A seasonal employee is, therefore, subject to periodic reassignment. [ 25 ] Similarly, stated the LRB, a “temporary” employee can be an employee without currently being in the workplace and without having a significant attachment to the workplace.

A temporary employee continues to be an employee despite being laid off. The temporary employee’s employment is only terminated if the period of layoff exceeds two years. This, stated the LRB, is in accordance with Articles 2.01(

s) and 20.07(

e) of the Collective Agreement. [ 26 ] The LRB noted that

Article 20.07(

d) of the Collective Agreement states that an employee recalled for casual work who is employed elsewhere shall not lose his recall rights for refusal to return to work. It noted that

Article 20.07(

d) was contrary to the Guild’s assertion that individuals who are not in the workplace, who are on lay-off or employed elsewhere should not be considered to be employees. [ 27 ] The LRB held at paragraph 47 of their decision stated: The key and fundamental consideration in determining whether an individual is an employee is whether that individual is employed in the bargaining unit.

If an individual is employed in the bargaining unit then that individual is an employee and a member of the bargaining unit. [ 28 ] The LRB also held that the relevant date for determining who is an “employee” under the Act is the date of the Application. The LRB indicated that this is based upon the wording of the Act and the wording of the Collective Agreement. [ 29 ] The LRB noted that, pursuant to the Collective Agreement, an employee is no longer considered to be an employee if s/he has been terminated.

The Collective Agreement defines “termination” as follows: 2.01(u) “termination” means the final severance of employment due to: (

i) resignation; (ii) dismissal for cause without reinstatement; (iii) lay-off for a period of more than two (2) years. [ 30 ] The LRB rejected the argument that an employee should be defined based upon the degree of the individual’s attachment to the Employer.

It held that to do so, without reference to the terms of the statute or the Collective Agreement, would be arbitrary and subjective. [ 31 ] If one could distill the LRB’s decision into one paragraph, it would be paragraph 52 – which states as follows: Simply put, if an individual is employed by the Employer within one of the classifications within the bargaining unit then that individual is an employee.

That is the case whether or not that employee has purportedly retired, taken a position with another employer or has not worked in a period of time, as long as that individual’s employment has not been terminated as per the terms of the Collective Agreement. [ 32 ] The Guild argued that the purpose of the essential service provisions contained in section 10(6) of the Act is, firstly, to protect the public interest by restricting the right of essential employees to strike and, secondly, to protect the bargaining unit as a result of the loss of bargaining power caused by the restriction on their right to strike.

In the Guild’s submission, the purpose of section 10(6) is to balance the erosion in the bargaining unit’s right to strike by ensuring that workers have recourse to adjudication to settle their dispute with the employer. issue Does the Act and, in particular section 10(6) , empower the LRB to interpret the meaning of “employee” in such a manner as to require intervention by an Adjudication Board? [ 33 ] The broad purpose of the Act is to set out a regime for the management of employer/employee relations in the public service.

Section 10 of the Act deals with those instances where certain employees are deemed to be critical to the functions performed by their unit and, therefore, essential even when a strike vote has been taken. Sections 10(1) to 10(5) deal with how the number of essential employees in a unit is to be determined. The employer can make a determination, which can be challenged by the union. The LRB has the responsibility to determine the number of employees who will be deemed essential in the unit. [ 34 ]

Section 10 of the Act attempts to strike a balance between the interest of the public in having essential services continued and the rights of employees to bargain and, where necessary, take strike action. [ 35 ] There is no dispute in this matter as to the number of persons who were deemed to be essential. The dispute concerns the number of employees in the unit – because it is only where the majority of employees in a unit are considered essential that the whole unit is deemed to be essential and, therefore, the provisions relating to an Adjudication Board apply.

[36] Section 10(6) of the Act states: Where a majority of the employees in a unit are considered or determined to be essential employees under this section, every employeewithin the unit shall be considered to be an essential employee for the purpose of this Act if the bargaining agent so advises the employerand the board. [37] The legislation is clear – where the majority of the employees in a bargaining unit are considered essential employees the rightto strike is eliminated for the unit and replaced by a process that results in a binding award made by an Adjudication Board. [38] At issue in this matter is the manner in which the term “employee” is to be interpreted. Under

section 2 of the Act an employeeis defined simply as a person who is employed by the Province. [39] The Merriam-Webster dictionary defines “employee” as “one employed by another usually for wages or salary and in a positionbelow the executive level”. [40] Wages or salary can be paid regularly, intermittently or on a sporadic basis. The work required of the employee could be fulltime, part time, seasonal, temporary, casual, monthly, weekly, daily or even hourly.

Many variations are possible, but if services areprovided by the employee resulting in remuneration being paid by the employer then, a fortiori, an employment relationship exists. [41] That relationship, if one exists, can be modified by the Collective Agreement between the parties – as was done in this case. [42] The Collective Agreement defined employees by defining circumstances under which persons who were employed as ferrycaptains ceased to occupy that status. The Collective Agreement states: 2.01(u) “termination” means the final severance of employment due to: (

i) resignation; (ii) dismissal for cause without reinstatement; (iii) lay-off for a period of more than two (2) years. [43] The parties have defined who can, and cannot, be an employee in the Collective Agreement.

If a ferry captain resigns her/hiscommission or is dismissed for cause, s/he ceases to be an employee of the bargaining unit and, therefore, is not counted as one for thepurposes of section 10(6) of the Act. [44] If a ferry captain is laid off for a period exceeding two years s/he ceases to be an employee for the purposes of the CollectiveAgreement. [45] The definition of termination in the Collective Agreement is not exhaustive. Persons could be fired without cause. They coulddie. Each of those events would sever the employment relationship. However, the Collective Agreement does not address thoseeventualities.

The Collective Agreement contemplates the “final severance of employment” as being a trigger that causes a person tocease being an employee, but does not define all of the circumstances under which the employment relationship might be terminated. Inthe two examples above, although the Collective Agreement does not contemplate those manners of termination, the person who is firedwithout cause or who has died will have had her/his employment terminated. In that event

section 2(i)(

i) of the Act would apply eventhough the Collective Agreement does not. [46] According to the definition in the Collective Agreement, a person laid off for a period of less than two years would continue tobe an “employee” for the purposes of the Collective Agreement. The Collective Agreement is silent as to the status of a person who hasretired or taken another job but, presumably, these individuals are nevertheless still available for call back. [47]

Section 2(

e) of the Act indicates that the Collective Agreement binds both the employer and the bargaining unit. [48] The Guild correctly pointed out the present state of the law insofar as statutory

interpretation is concerned. As was indicatedby the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 at paragraph 21: … the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. [49] The intention of the Legislature was to provide for a board of adjudication in circumstances where the majority of employeeswere deemed essential.

The definition of what constitutes an employee was, in large part, left up to the employer and employee’s agent todetermine in the course of bargaining the terms of the Collective Agreement. [50] I agree with the Guild that the LRB’s decision is coherent and that its path of reasoning appears rational. More than that, Iwould say that the LRB’s path of reasoning and conclusion are reasonable. It is up to the parties to negotiate who should, and should not,be considered to be employees for the purposes of the Collective Agreement.

If the Guild seeks to have its membership determined onthe basis of a person’s degree of attachment to the employment, then it is incumbent on the Guild to negotiate a Collective Agreementthat defines as employees only those persons who it views are sufficiently connected as employees.

[ 51 ] It is not the function of the LRB to determine whether or not the right to strike in any given labour dispute is, or will be, effective.

If, in the case of the Guild, the numbers worked out in such a way that the right to strike was ineffective, and there was no incentive for the employer to return to the bargaining table because essential services continued to be provided, it is because of the failure of the Collective Agreement to adequately define the membership of the bargaining unit, not a failure of the LRB to take the purpose or context of the legislation into account. [ 52 ] It would be inappropriate to interfere in the decision of the LRB. [ 53 ] The Application is dismissed with costs to the First Respondent calculated in accordance with Column 3 of the Scale of Costs. _____________________________ Vikas Khaladkar Justice