They Do Exist! Unionized Employers Do Have Management Rights – Just Be Careful How You Exercise Them

A recent case involving the Association of Justice Counsel was before the Supreme Court of Canada for a pronouncement on the exercise of management rights where a collective agreement is otherwise silent.

It is well understood that, in the absence of a specific provision in the collective agreement prescribing or limiting the exercise of authority on any specific aspect of the workplace, management retains the right to make and implement decisions, policies and conditions. However, it has also been a long-recognized principle that any such "residual management rights" must be exercised in a manner that is reasonable and consistent with the terms of the collective agreement. In Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, the Supreme Court of Canada had occasion to consider what constitutes such fair exercise of management rights, in the context of a decision by the Employer (the Department of Justice Canada) to make changes to its standby system for lawyers working in the Immigration Law Directorate's Quebec Regional Office. Prior to 2009, the Employer asked for volunteers to work standby; such lawyers working standby were then compensated with paid leave of 2.5 days' time off for each week of evening and weekend shifts that they were on standby, regardless of whether or not they were actually called in to work.

In 2009, the Employer and the Association of Justice Counsel negotiated a collective agreement that entitled more lawyers to overtime pay, although some more senior lawyers could still receive lieu time. Consequently, even though not addressed in the collective agreement, the Employer revised the standby system to operate such that lawyers would only be compensated for standby time if they were actually called in to work on a matter. As a result volunteer rates for the standby shifts plummeted. In order to ensure that operational needs were met, the Employer issued a directive making it mandatory for each lawyer to work standby shifts one to three weeks per year. The Association of Justice Counsel grieved the implementation of this directive.

As mentioned, the collective agreement was silent on standby shifts. However, the parties, and the arbitrator, focused on Articles 5.01 and 5.02 of the collective agreement as the proper considerations in determining the grievance. Article 5.01 states:

All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or...