Thursday, February 9, 2017

SK LRB on Supervisory Employees in Existing Bargaining Units by Greg

In Saskatoon Public Library Board v Canadian Union of Public Employees, Local No. 2669LRB File No. 135-16 (PDF) ("SPL"), the Saskatchewan Labour Relations Board issued a key precedent in the interpretation and administration of the Saskatchewan Employment Act ("SEA") provisions respecting supervisory employees.

Section 6-11 of the SEA provides in relevant part as follows:

6‑11(1)  If a union applies for certification as the bargaining agent for a unit or a portion of a bargaining unit or to move a portion of one bargaining unit to another bargaining unit, the board shall determine:
(a)  if the unit of employees is appropriate for collective bargaining; or
(b)  in the case of an application to move a portion of one bargaining unit to another bargaining unit, if the portion of the unit should be moved.
(2)  In making the determination required pursuant to subsection (1), the board may include or exclude persons in the unit proposed by the union.
(3)  Subject to subsections (4) to (6), the board shall not include in a bargaining unit any supervisory employees.
(4)  Subsection (3) does not apply if:
(a)  the employer and union make an irrevocable election to allow the supervisory employees to be in the bargaining unit; or
(b)  the bargaining unit determined by the board is a bargaining unit comprised of supervisory employees.
(5)  An employee who is or may become a supervisory employee:
(a)  continues to be a member of a bargaining unit until excluded by the board or an agreement between the employer and the union; and
(b)  is entitled to all the rights and shall fulfil all of the responsibilities of a member of the bargaining unit.
(6)  Subsections (3) to (5) apply only on and after two years after the date on which subsection (3) comes into force.

The focus of section 6-11 is on the determination of an appropriate bargaining unit in the case of a union application for new bargaining rights (s. 6-9) or a change in bargaining rights (s. 6-10).

However, there was previously some uncertainty as to whether subsection 6-11(3) might also be applied to allow employers to eject supervisory employees from existing bargaining units. Based on the risk of that interpretation (along with the prospect of future applications for changes in bargaining rights), some unions and employers have signed irrevocable elections allowing supervisory employees to remain in their existing bargaining units.

SPL was designated as the "test case" to determine how the Board would apply subsection 6-11(3) in the case of an employer application to amend the scope of a bargaining unit. In addressing the preliminary question of statutory interpretation, Chairperson Love held as follows at para. 27:

(T)his Board is of the view that the ordinary and grammatical meaning of subsection 6-11(3) is that it applies only in the context of an initial application by a trade union to represent a group of employees or a part of such a group.

Chairperson Love also firmly rejected the employer's argument that s. 6-11(3) should be interpreted to allow employers to strip away supervisory employees' collective bargaining rights with no input by, nor protection for, the affected employees. See in particular paras. 31-37.

The remaining interpretive issues surrounding subsection 6-11(3) will now arise only in the case of union applications for new or changed bargaining rights. It remains to be seen whether s. 6-11(3) will pass constitutional muster in some such cases, particularly where its effect could be to substantially preclude supervisory employees from exercising their Charter freedom of association. 

However, the Board (through its decision in SPL), the provincial government (through the growing list of occupation-based exemptions under The Labour Relations (Supervisory Employees) Regulations), and many unions and employers (through their irrevocable elections) have all made clear that the exclusion of supervisory employees from standard bargaining units is unworkable and contrary to the purposes of the SEA in a large number of cases. Under those circumstances, the question arises whether the supervisory employee provisions of the SEA serve any useful purpose at all.

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