Can an employer with a unionized workforce require its employees to work unpaid standby shifts? In the absence of express language in the collective agreement, employers may try to impose standby under the scope of general “management rights”. Although each case will depend on the facts, a recent decision of the Supreme Court of Canada suggests that such unilateral policies by an employer are not allowed.
In a decision released on November 3, 2017 – Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55 – the Supreme Court upheld an arbitrator’s finding that an employer directive making after-hours standby shifts unpaid and mandatory was an unfair and unreasonable exercise of management rights.
Facts
The case involved government immigration lawyers who were required to be available for occasional evenings and weekends to deal with urgent stay applications. Standby shifts had previously been voluntary and employees were given 2.5 days of paid time off for a week’s standby shift of evenings and weekend days, whether the employee was called in to work or not.
After the last collective agreement was signed, the employer announced that employees on standby shifts would no longer be paid unless they were actually called in. The standby shifts would also be mandatory, with each employee required to do standby for one to three weeks per year.
Standby shifts were scheduled from 5 to 9 p.m. on weekdays and 9 a.m. to 9 p.m. on weekends. While on standby, the lawyers had to carry an employer-issued pager and cell phone and remain within one-hour’s travel of their office.
The collective agreement had no provisions about standby. The Employer instead relied upon the management rights clause, which stated that the employer retains all management rights and powers that have not been modified or limited by the collective agreement.
Decision
In its decision, written by Justice Karakatsanis for the majority, the Supreme Court affirmed that arbitrators should use the “balancing of interests” assessment when determining whether a policy is a reasonable exercise of management rights. This is the approach found in the leading arbitration decision KVP[1]. The approach requires arbitrators to determine whether the employer’s policy strikes a reasonable balance between management and employee interests.
Whether the unilateral imposition of standby is reasonable will depend on the circumstances and the terms of the particular collective agreement. In this case, one of the critical facts was that the standby directive affected how the lawyers lived their lives outside of work, with the employer exercising a degree of control over their movements and activities. Other factors included the fact that standby was not contemplated in the collective agreement or the lawyer’s job descriptions; such policies were not the norm in the sector; and compensation for standby had been a long‑standing practice. In these circumstances, the employer’s policy was unreasonable.
The Court, however, dismissed the Association’s Charter argument, finding that the directive did not violate the lawyers’ s. 7 Charter right to liberty, because the nature and degree of the infringement on the lawyers’ personal lives did not raise the type of fundamental personal choices that are protected under s.7.
[1] Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73