LABOUR & EMPLOYMENT LAW
A Casual Employee’s Charter Right to Associate
Justice Garnett of the New Brunswick Court of Queen’s Bench held that the exclusion of “casual employees” from the definition of “employees” under the Public Service Labour Relations Act, R.S.N.B. c. P-25 is a violation of a casual employee’s right to association under section 2(d) of the Canadian Charter of Rights and Freedoms.
FACTS:
In an employment setting, the most common types of intellectual property are inventions and literary and artistic works. Since computer programs, software code and reports are considered literary works, they are protected by the Copyright Act, whereas patentable inventions, such as machines, tools, and pharmaceuticals are protected by the Patent Act. The general rule is that the author or inventor of the work is the owner of the intellectual property and all rights attaching to it. However, exceptions can apply in an employment setting.
ANALYSIS:
Justice Garnett held that the issue was whether or not the PSLRA “either in purpose or effect” interfered with the s.2 (d) Charter protected right of employees to associate in a process of collective action to achieve workplace goals.
A similar issue was dealt with in the province of Ontario involving agricultural workers. In the case of Dunsmore v. Ontario [2001] 3 S.C.R. 1016 (“Dunsmore”), the Supreme Court of Canada determined that the exclusion of agricultural workers from the labour relations legislation of Ontario had the effect of interfering with those workers’ freedom of association and was therefore unconstitutional. The legislation was struck down and the Ontario legislature was given 18 months to amend its legislation. In response to Dunsmore, Ontario passed the Agricultural Employees Protection Act (“AEPA”). However, the legislation has been subsequently Charter challenged in the case of Fraser v. Ontario [2008] 301 D.L.R. (4th) and leave to appeal to the Supreme Court of Canada was granted in April 2009.
Relying on the case of Dunsmore, Garnett J. assessed the unique characteristics of “casuals” and found that collectively, casual employees did form a vulnerable group similar to the agricultural workers. Casual employees come from diverse backgrounds as they are employed in every profession, trade or occupation. This diversity prevents them from forming an association to further their interests. Casuals are also often subject to working conditions defined solely by their employer and these working conditions are generally less advantageous than those of “employees”. Furthermore, casuals have a lower status simply because they are often prevented from achieving advancement.
Garnett J also determined from the evidence that the Province benefited from a definition of “employee” that excluded casuals. The Province required long-term casual employees to take two weeks unpaid holidays every six month so that the casuals would not reach the six month target and become an “employee” under the PSLRA. In this respect, the Province essentially utilized the definition of “employee” to retain experienced and skilled employees without having to provide benefits to them. Garnett J. found the Province’s practices unfair and stated that this was a situation in which the Charter imposed positive obligations on the government to “extend protective legislation to unprotected groups”.
Garnett J. concluded that the exclusion of casual employees from the definition of “employee” was contrary to s.2 (d) of the Charter but not to s.7 or s.15. However, Garnett J. suspended the declaration of invalidity for 12 months to allow the legislature to provide a statutory framework that is consistent with Charter.
Impact of CUPE v. PNB
The CUPE decision illustrates that the scope of s.2 (d) of the Charter has been applied to not just employees within a specific trade or profession (such as agricultural workers) but has been extended to apply to a diverse group of individuals whose only connection with one another is the length of time worked. Jurisdictions which exclude casual employees are likely to be faced with similar Charter challenges.
New Brunswick is not the only jurisdiction in Atlantic Canada that expressly excludes casual public service employees from the definition of “employee”. In Nova Scotia, the Civil Service Collective Bargaining Act excludes from the definition of “employee” casual employees who have not been employed for more than ten weeks or employed in the same department for more than a total of ten weeks in a twelve-month period. Further, Procedural/Policy Statement 1.4 of the Nova Scotia Labour Relations Board applies to non-public service employees governed by the Trade Union Act and provides that regular part-time employees will be included in bargaining units whereas casual employees will generally be excluded.
In Prince Edward Island, the exclusion of casual employees is not clearly outlined. The organization of the P.E.I civil service is divided into three divisions, including the casual division, which comprises of contract, relief, temporary and student employees. Regulation 66 (f) of the Civil Service Act, R.S.P.E.I. 1990 c.6, defines the term “employee” to mean “permanent employees and those relief employees with a minimum of six months continuous employment.” Neither the regulations nor the Act explicitly details whether relief workers with less than six months of continuous employment or temporary employees are excluded from being represented by the Union. However, if regulation 66 (f) is interpreted to deny particular classes of casual employees, the CUPE decision may impact the jurisdiction of PEI as well.
In Newfoundland and Labrador, “casual employees” are not excluded from the definition of “employee” under the Public Service Collective Bargaining Act, R.S.N.L1990 P-42. Furthermore under the Labour Relations Act, R.S.N.L. 1990, c. L-1, casual employees meet the definition of “employee”. Thus, it does not appear that the CUPE decision will have an impact in the Newfoundland and Labrador jurisdiction.
It is uncertain as to how the Province will respond to this decision. The Province may appeal, which must be filed within 30 days after the decision. The Province may also apply for a stay of proceedings to await the decision of the Supreme Court of Canada in Fraser before acting.
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