Canada: Supervisory Provisions And The Saskatchewan Labour Relations Board

A recent decision from the Saskatchewan Labour Relations Board could have far-reaching implications on collective bargaining units in Saskatchewan, particularly those where an irrevocable election is not in place.

In University of Saskatchewan v. Administrative and Supervisory Personnel Association (the "ASPA Supervisory Employees" decision), the Saskatchewan Labour Relations Board (the "Board") recently revisited the interpretation of the supervisory exclusion provisions in The Saskatchewan Employment Act (SEA). Specifically, the Board considered the prohibition in subsection 6-11(3) against supervisory employees belonging to the same bargaining unit as employees they supervise.

BACKGROUND

Provisions in the SEA with respect to supervisory employees came into force in 2014. Saskatoon Public Library Board v. Canadian Union of Public Employees, Local No. 2669 (Saskatoon Public Library) 2017 CanLII 6026 (SK LRB) was the original test case where the Board considered an employer's application to have supervisory employees removed from an existing bargaining unit under the supervisory employee provisions in the SEA.

The Board held that the SEA's prohibition against supervisory employees being included in a bargaining unit with employees they supervise did not apply to bargaining units which existed prior to the legislative amendments becoming law. The Board noted that the prohibition is restricted to new applications made by a trade union for certification of a new bargaining unit, or in respect to applications made by a trade union to certify part of a current bargaining unit out of a larger bargaining unit. As a result, the Board dismissed the application of Saskatoon Public Library to remove those employees and this interpretation was utilized by employers and unions in Saskatchewan for several years.

The University of Saskatchewan subsequently applied to the Board in ASPA Supervisory Employees and asked the Board to have another look at these supervisory employee provisions.

DECISION

In the ASPA Supervisory Employees decision, the Board reversed its previous interpretation of the supervisory employee provisions from Saskatoon Public Library. Prior to the release of the Saskatoon Public Library decision, the University filed an application to amend the ASPA bargaining unit for the purpose of removing those employees who supervise other members of the same bargaining unit contrary to subsection 6-11(3) of the SEA. The Board granted the University's application and held that the Board's interpretation of the supervisory provisions in Saskatoon Public Library was incorrect.

In finding that supervisors cannot properly be included in a bargaining unit with employees they supervise, the Board concluded that the grammatical and ordinary sense of the supervisory employee provisions of the SEA illustrate that supervisory employees should be excluded from all bargaining units and contemplate the removal of supervisory employees from existing bargaining units.

The Board proceeded to examine the underlying purpose of the supervisory provisions and the intent of the legislature in enacting the provisions, including removing the conflict-of-interest created when a supervisory employee has to discipline a member of their same bargaining unit. Ultimately, the Board concluded that the debates that occurred surrounding the amendments to the SEA and which were recorded in Hansard made it "abundantly clear that the intention of the Legislature was that the supervisory employee provisions were to apply to existing bargaining units."

Therefore, the proper interpretation of the SEA's supervisory employee provisions is an equal application to all bargaining units regardless of when the bargaining unit was created. Supervisory employees can no longer be in the same bargaining unit as employees they supervise, unless the employer and union agreed to an irrevocable election that this could occur.

Upon application to amend an existing certification order to remove supervisory employees from a bargaining unit that includes employees they supervise, the Board will now apply the supervisory provisions. This involves a determination of whether the employees are properly classified as "supervisory".

FUTURE IMPLICATIONS OF ASPA SUPERVISORY EMPLOYEES DECISION

This decision will have broad implications for unionized workplaces in Saskatchewan where there are supervisors in the same bargaining unit as the employees they supervise. It means that where an existing bargaining unit has employees who supervise other bargaining unit employees, the employer can apply to the Board to remove the supervisors from the bargaining unit. Once removed, the supervisors are no longer unionized, though they may decide to apply for certification of their own bargaining unit.

This may result in an increase in the number of bargaining units in the province to some degree. It is also important to note that if the employer and the union agree to leave supervisors in a bargaining unit, the employer and the union can enter into an irrevocable election to permit the supervisors to remain in the bargaining unit.

However, it should be noted that this decision is currently under judicial review.

Originally Published by The Potash Producers E-Newsletter.

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