The Lawyers Weekly - August 6, 2010

Bar against grievances by seasonal or casual employees set aside

THOMAS CLARIDGE TORONTO

By the narrowest of margins, the Supreme Court of Canada has ruled that a provincial law setting minimum labour standards ousted a provision in a collective agreement covering Quebec civil servants which barred grievances by seasonal or casual employees hired for periods of less than a year.

In the 5–4 decision released on July 29, the court rejected a contention by government lawyers that arbitrators lacked jurisdiction to hear two grievances, one by a casual employee and the other by a probationary worker, and that their complaints should have gone to the provincial labour relations board, the Commission des relations du travail (CRT).

Writing for the majority, with
Justices Morris Fish, Rosalie
Abella, Louise Charron and
Thomas Cromwell concurring,
Justice Louis LeBel held that the
grievance arbitrators had juris-
diction to determine whether the
grievance and arbitration pro-
cedure set out in the collective
agreement was equivalent to the
recourse provided for in Que-
bec’s Act respecting Labour Stan-
dards (ALS).

“Like any collective agreement, the agreement
at issue here must be interpreted in light of the
relevant provisions of the complex legislative
scheme governing labour relations in Quebec.
was implicitly incorporated in
the collective agreement, the
arbitrators had jurisdiction to
hear the grievances.

Justice LeBel said that while the parties had described the issue for the court as to whether s. 124 was implicitly included in every collective agreement, the “true question raised by the appeals” concerned “the hierarchy of sources of Quebec

Social Services Administration
Board v. O.P.S.E.U., Local 324,
[2003] S.C.J. No. 42, as estab-
lishing that the substantive min-
imum labour standard estab-
lished in s. 124 was implicitly
incorporated into every collective
agreement, and that where such
standards are so incorporated,
the grievance arbitrator remained
the appropriate decision-maker,
except where the legislature had
clearly conferred jurisdiction on
another authority.

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