Can Employers Require Mandatory Unpaid Standby Duty?

The recent decision of the Supreme Court of Canada (SCC), Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55, addressed the issue of whether a unionized employer can unilaterally introduce a policy requiring employees to provide unpaid standby duty.

Facts

For two decades, the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice had a voluntary standby system in place to deal with emergency immigration matters. The standby period was from 5:00PM to 9:00PM on weeknights and from 9:00AM to 9:00PM on weekends. While on standby, the lawyers were required to carry an employer-issued pager and cell phone and to report to work within one hour of an emergency call. Lawyers who were on standby were compensated with paid leave. Lawyers received compensation whether or not they actually performed services while on standby.

As a result of budgetary constraints, a change was introduced by the employer as to how employees were compensated for standby duty. The change provided that lawyers on standby would only be paid for work actually performed while on standby. If a lawyer was on standby but was not required to perform any work, they would receive no compensation. Unsurprisingly, most lawyers stopped volunteering for standby duty.

Relying upon the management rights provision in the collective agreement, the employer unilaterally introduced a policy making uncompensated after-hour standby duty mandatory for all lawyers.

Grievance

The union grieved the employer's mandatory unpaid standby duty policy. The arbitrator concluded that the employer's policy was not a reasonable or fair exercise of its management rights and violated the liberty interests of the lawyers protected under section 7 of the Canadian Charter of Rights and Freedoms. The policy was found to be unenforceable.

Judicial Review

The employer applied for judicial review of the arbitrator's decision. The Federal Court of Appeal (FCA) allowed the appeal, set aside the decision of the arbitrator and directed another arbitrator to consider the grievance. The decision of the Federal Court of Appeal was judicially reviewed.

Decision of the Supreme Court of Canada

On judicial review, the majority of the SCC upheld the decision of the arbitrator with respect to the issue of mandatory unpaid after-hour shifts and confirmed that the policy was unfair and unreasonable. The SCC explained that, in a unionized workplace, when determining whether a...