Lethbridge Com. Coll. v. Pub. Ser. Emp. (1989), 95 A.R. 363 (QB)

MLB headnote and full text

In The Matter Of The Public Service Employee Relations Act and an application pursuant to section 11

The Board of Governors of Lethbridge Community College (applicant) v. The Public Service Employee Relations Board and the Alberta Union of Provincial Employees (respondents)

(No. 8801-03193)

Indexed As: Lethbridge Community College v. Public Service Employee Relations Board (Alta.)

Alberta Court of Queen’s Bench

Judicial District of Calgary

Hutchinson, J.

February 1, 1989.

Summary:

An employer proposed certain clauses, respecting the termination of casual employees, for inclusion in a collective agreement. The Public Service Employee Relations Board decided that only part of the proposed clauses could be considered for inclusion in a collective agreement. The employer applied for certiorari.

The Alberta Court of Queen’s Bench granted the application and held that the clauses in toto could be considered for inclusion in a collective agreement.

Labour Law – Topic 9483

Public service labour relations – Collective agreements – Arbitration of proposed terms, what terms arbitrable – An employer proposed clauses respecting the termination of casual employees – The Public Service Employee Relations Board held that the proposed clauses were arbitrable but deleted the words “and without recourse to the grievance procedure” – The Board based its decision on the requirements of s. 61 of the Public Service Employee Relations Act – The Alberta Court of Queen’s Bench held that the Board committed an error of law that was patently unreasonable and held that the proposed clauses were arbitrable without deletion of the words in question.

Cases Noticed:

Alberta Union of Provincial Employees Branch 63 v. Alberta Public Service Employees Relations Board and Board of Governors of Olds College, [1983] 1 W.W.R. 593; [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281; refd to. [para. 7].

Alberta v. Public Service Employee Relations Board and the Alberta Union of Provincial Employees (1985), 61 A.R. 110, refd to. [para. 13].

Statutes Noticed:

Public Service Employee Relations Act, R.S.A. 1980, c. P-33, sect. 48, sect. 61 [para. 1].

Counsel:

D.R. Laird, Q.C., for the applicant;

B.M. Thompson, for the respondent, The Public Service Employee Relations Board;

G.B. Gawne, for the respondent, The Alberta Union of Provincial Employees.

This application was heard by Hutchinson, J., of the Alberta Court of Queen’s Bench. The decision of Hutchinson, J., was delivered at Calgary, Alberta, on February 1, 1989.

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Lethbridge Community College v. Public Service Employee Relations Board (Alta.)

(1989), 95 A.R. 363 (QB)

Court:
Court of King’s Bench of Alberta
Reading Time:
16 minutes
Judges:
Hutchinson 
[1]

Hutchinson, J.
: The Board of Governors of Lethbridge Community College (“the applicant”) applied by way of notice of motion seeking an order in the nature of certiorari to quash portions of certain decisions made by the Public Service Employee Relations Board (“the Board”). Because the Board had not yet delivered its reasons concerning the arbitrability or non-arbitrability of certain items proposed for inclusion in a collective agreement, I postponed my final decision on those matters to be considered by the Board. In my reasons leading up to that conclusion dated June 16, 1987, [see 80 A.R. 358] I reviewed the situation as follows:

“1. The following subarticles 2.03, 2.04 and 14.03 were held to be arbitrable with the deletion of the words ‘and without recourse to the grievance procedure’.

EMPLOYER PROPOSAL

‘2.03 A Temporary Part Time Employee shall receive all terms and conditions of this Agreement on a pro rata basis, where applicable, unless otherwise specified herein. Except as otherwise provided in this agreement, Temporary Employees, both Full Time and Part Time, shall not be entitled to any other provisions of this Agreement other than those dealing with Definition, Recognition, Management Rights, Union Dues, Union Representation, New Classification, Hours of Work, Overtime, Call Back, Shift Differential, Court Leave, Leave of Absence, Paid Holidays, Casual Sick Leave, Reporting Pay and Pay Schedule.

‘If a Temporary Employee, both Full Time and Part Time is unsatisfactory, in the opinion of the Employer, the Employee may be terminated without notice and without recourse to the grievance procedure.

EMPLOYER PROPOSAL

‘2.04 A Casual Employee shall be paid in addition to his regular rate of pay, eight (8) per cent of his earnings in lieu of vacation and paid holiday entitlements.

‘Except as otherwise provided in this Agreement, Casual Employee shall not be entitled to any other provisions of this Agreement other than those dealing with Definitions, Recognition, Management Rights, Union Dues, Union Representation, Hours of Work, Overtime, Call Back, Shift Differential, Reporting Pay and Pay Schedule.

‘If a Casual Employee is unsatisfactory, in the opinion of the Employer, the Employee may be terminated at any time without notice,
and without recourse to the grievance procedure
.

‘14.03 If the Employee is unsatisfactory, in the opinion of the Employer, the Employee may be terminated at any time during the probationary period without notice
and without recourse to the grievance procedure
.’

“The Board gave no reasons for its decision on March 20, 1987, and on an application for reconsideration, the Board in its letter dated April 27, 1987, refused to reconsider its decision. The Board stated that it will issue reasons for its decision with respect to the subarticles in the near future. No reasons have yet been given.

“In his argument that the above mentioned words should not have been deleted from the College’s proposals, counsel for the Board of Governors concludes that as the denial of access to the grievance procedure is not mentioned in s. 48(2) as being not arbitrable, and without reasons from the respondent Board, it is assumed that these matters were found to be not arbitrable as they cannot pass s. 48(1) of the
Act
which provides:

’48(1) An arbitration board may only consider, and an arbitral award may only deal with, those matters that may be included in a collective agreement.’

“‘Collective agreement’ is defined in s. 1(j) of the
Act
as meaning ‘an agreement in writing between an employer and a bargaining agent, containing
terms or conditions of employment’
. (emphasis added)

“Counsel for the Board of Governors argues that the words which have been excluded by the Board should be included in the proposed articles as part of the ‘terms or conditions of employment’. This leads the counsel for the Board of Governors to conclude that the Board must have determined that the words which the Board wishes to exclude from the proposed items offends some other section of the
Public Service Employee Relations Act
and in particular s. 61 of the
Act
quoted as follows:

’61 Every collective agreement shall contain a method for the settlement of differences arising

(a) as to the interpretation, application or operation of a collective agreement,

(b) with respect to a contravention or alleged contravention of a collective agreement, and

(c) as to whether a difference referred to in clause (a) or (b) can be the subject of adjudication

between the parties to or persons bound by the collective agreement.’

“Two recent decisions are quoted on behalf of the College relating to the wording of s. 61 and which are urged to be found binding on the respondent Board. The first is a judgment of Madam Justice McFayden in
Re Royal Alexandra Hospital and Alberta Hospital Employees Union Local 41 et al.
127 D.L.R.(3d) 312 where the same wording of s. 61(a) existed in s. 138 of the
Alberta Labour Act
, now the
Labour Relations Act
. The court there held that the arbitration board erred in holding that a terminated probationary employee had recourse to the grievance procedure and arbitration notwithstanding a provision in the collective agreement that denied a terminated probationary employee access to the grievance procedure and arbitration. The Court held that the parties under the terms of what is now s. 61 of the
Act
where ‘free to agree that the decision by the employer is final and binding in settlement of the difference. This is what the parties did in this case’ p. 319. The second case cited is in
Re R. v. Right of Alberta v. The Public Service Employee Relations Adjudication Board et al.
36 L.R.(2d) 253 where it was held that a ‘difference’ within the meaning of s. 61 could be a provision that denied access to the grievance procedure by certain categories of employees.

“Assuming that the decision of the Board to exclude the words ‘and without recourse to the grievance procedure’ stemmed from the Board’s misapprehension of the application of s. 61 of the
Act
, it is argued that such an interpretation by the Board is one that cannot reasonably bear and accordingly the Board’s decision should be quashed.

“It is submitted on behalf of AUPE that the decision of the Board should be upheld inasmuch as the Board only deleted words which it must have considered to be offensive having regard to s. 48(2). AUPE further argues that the
Royal Alexandra
case (supra) was a rights arbitration case and not an interest arbitration case and that whereas the parties are free to agree with one another concerning the inclusion of a clause, which would otherwise offend s. 48(2), this does not mean that such a clause can be referred to arbitration if the parties cannot agree. Without the exclusion of the offending words, AUPE submits that the proposed clauses do not amount to a method to resolve differences as the employee [sic] would remain the sole judge of the issue with an obvious apprehension of bias, leaving no remedy at all of the temporary part time employee or casual employee or probationary employee.

“Counsel for the Board submits that the Board did not here interpret s. 61 of the
Act
but that in any event this is not the point before the Court. The application here is one for certiorari and whether or not the Board’s decision is subject to review where the Court’s attention is limited to the patently unreasonable test where the Board’s decision must be found to be outrageous, specious or without basis in logic.

“The Board is empowered to decide for the purposes of the
Act
whether a matter in dispute is an arbitral item (s. 9(1)(m)). In the absence of evidence to the contrary, we do not know whether the Board considered the application of s. 61 to the proposed items submitted by the Board of Governors for inclusion in the collective agreement and, as a consequence, determined to exclude those words from the proposed items quoted above. It has been suggested that in the absence of any reasons, this application for certiorari is premature particularly where the Board has promised to give reasons in its letter dated April 27, 1987. I am not satisfied that the words excluded by the Board infringe on the exclusions provided in s. 48(2) of the
Act
. I am satisfied that they do form part of ‘terms and conditions of employment’ to be considered for inclusion in a collective agreement pursuant to s. 48(1) of the
Act
. This being the case, there is no reason why the proposed items in their entirety should not be considered as arbitrable items unless they offend s. 61 of the
Act
. Having regard to the two cases cited on behalf of the Board of Governors. I hold that s. 61 is not breached by the inclusion of the words deleted by the Board in that a method for the settlement of differences remains, albeit with the employer, having regard to temporary part time employees, casual employees and probationary employees. However, before a final decision is made on this point it is necessary for us to give the Board an opportunity to deliver its promised reasons in the event that there are additional matters to be considered.”

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