The ongoing challenges which employers face in the current
economy are highlighted by the decision in Professional
Association of Foreign Service Officers v Treasury Board, 2013
PSLRB 110, where the Public Service Labour Relations Board
("Board") found that the Treasury Board
("Employer"), breached its duty to bargain in good faith.
In particular, the Board held that the Employer acted improperly
when it sought to impose pre-conditions on arbitration in
conjunction with collective bargaining with the Foreign Service
Officers union ("Union").
Collective bargaining between the Employer and the Union reached
an impasse when the Union attempted to negotiate wage parity
between members of the bargaining unit and their counterparts in
other federal government occupational groups. The specific groups
which the Union sought parity with were legal advisors, economists,
and commerce officers.
When the Union was in a legal strike position, the Union, out of
concern for the magnitude of the strike's impact on the
Canadian economy, suggested that the parties resolve the dispute by
submitting to binding arbitration under the Public Service
Labour Relations Act ("Act").
The Employer accepted the offer subject to certain conditions,
namely, the Employer sought to prevent the Union and, in turn, the
arbitration board from utilizing comparisons to the three
identified occupational groups. Although the Union accepted some of
the other conditions proposed by the Employer, the Union was
not prepared to accept the comparator condition and proceeded with
Positions of the parties
Before the Board, the Union argued that, by refusing to allow
the use of the relevant occupational groups as comparators, the
Union's position on wage parity was untenable. As such, the
Union argued that the Employer breached its duty to bargain in good
faith by attempting to predetermine the Board's decision on the
The Employer argued that since the Act does not contain express
restrictions as to the conditions either party can impose with
respect to arbitration, it was acceptable to only proceed with an
arbitration process on whatever terms the parties agreed to. For
this reason, the Employer argued that either party could propose
any conditions on the referral of a dispute to arbitration.
The Board confirmed that parties considering submitting a
dispute to arbitration (under the Act or otherwise) are expected to
deal with each other throughout the entire process in good faith.
As such, the parties must enter into serious, open and rational
discussions with the real intent of entering into a mutually
acceptable collective agreement.
The Board also held that the duty to bargain in good faith is
defined by the manner in which the parties conduct themselves
during the bargaining process. If a party's conduct is not
conducive to the full exchange of positions, by virtue of that
conduct, the party has breached the duty to bargain in good
With respect to the conduct of the Employer, the Board found
that the conditions it proposed, if accepted by the Union,
prevented the Union from having a rational discussion about the
Union's position on wage parity. Therefore, by putting forward
conditions which the Employer knew or ought to have known could not
be accepted by the Union, the Employer exacerbated the impasse
between the parties, acted in a manner that was not conducive to a
full exchange of positions, and, consequently, breached the duty to
bargain in good faith.
As enunciated by the Board, employers and unions considering
submitting a dispute to arbitration for resolution mutually owe one
another a duty to bargain in good faith. However, adhering to that
duty and proposing conditions on arbitration are not mutually
exclusive. The Board's decision is not a blanket prohibition on
Instead, employers must balance the duty to act in good faith
and the obligation to come to the bargaining table with a
willingness to engage in serious, open and rational discussions
against the desire to place conditions on arbitration. Before
asserting conditions, employers should consider: (1) the
union's position; (2) the impact the desired condition will
have on the Union's ability to fully express its position with
respect to the relevant bargaining issues; and (3) whether it would
be reasonable for the union to decline the condition without
breaching its duty to bargain in good faith.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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