Union of Canadian Correctional Officers UCCA-SACC-CSN v Canada, 2018 QCCS 2539
On June 6, 2018, Mr. Justice Davis of the Quebec Superior Court of Justice rendered a decision regarding the ability to bargain pension terms under the regime applicable to the Canada public service. The Union of Canadian Correctional Officers wanted to negotiate certain aspects of its pension plans, despite legislation which appeared to prohibit such negotiation.
It is section 113 of the Federal Public Sector Labour Relations Act that prescribes the negotiation process for that sector. It reads as follows:
A collective agreement that applies to a bargaining unit — other than a bargaining unit determined under section 238.14 — must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if
- doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or
- the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.
The challenge by the union is based on the argument that this section is unconstitutional and infringes upon the right to freedom of association of its members. This was opposed by the Attorney General of Canada. Except where an exemption is stipulated, the Treasury Board of Canada is the employer of public service workers and its powers are established under the Financial Administration Act.
Needless to say that in the Canadian environment, the right to collective bargaining is not absolute, and legislation must substantially infringe that right in order for the court to declare so. The proof submitted by the union is to the effect that pension negotiation is highly important for the union and its members and they have requested to negotiate their pensions since 2002.
With regard to pensions, the FPSA creates an advisory committee and the court recognized that the consultation under this committee has led to some amendments to pension plans over the years, specifically with regard to correctional officers. However, the court was unable to conclude that these consultations or amendments are the real product of a collective bargaining process as these consultations were entirely ad hoc and resulting only from the employer’s own decision to hold consultations. There is no guarantee that these consultations will continue to be held in future negotiation rounds. Furthermore, the process in place was unable to provide union members the opportunity to negotiate some working conditions that are very important to them and, most importantly, no mechanism of any sort was established to provide a final decision-making dispute-resolution mechanism (nor any mediation process). As far as the court is concerned, a grievance procedure that provides a final resolution regarding a dispute over work conditions is an essential element of a collective bargaining agreement and consequently of the collective bargaining process as well. Therefore court concluded that the prohibition on bargaining pension matters infringed upon the union members’ right to freedom of association pursuant to the Canadian Charter of Rights and Freedoms.
The court then conducted a Charter section 1 analysis. The court found that the government’s argument that there is a national interest in uniformity of pensions for public service workers was not proven, and that the infringement was not minimal. Uniformity of pension provisions is less and less a reality as time goes by and if negotiation is permitted, the extent of it still would not be absolute.
The Tribunal finally concluded that paragraph b) of Section 113 of the FPSA goes beyond what is required in order to protect elements that government believes should be non-negotiable and government did not demonstrate that the prohibition is saved by Section 1 of the Charter. The court ordered that the implementation of the decision would be suspended for a period of 12 months following June 6, 2018.
Sonia Massicotte is a legal consultant with PBI Actuarial Consultants Ltd.