Nov. 17, 2022

Casuals in the Yukon Government and their fundamental right to Freedom of Association

There is a category of precarious worker in the Yukon that is currently barred by law from joining a union. They have no protection from being fired without just cause, they cannot file a grievance and their employer never has to listen to their call for improved wages or benefits. They are not even guaranteed minimum wage, or any other provisions of the Yukon Employment Standards Act.

These are the growing number of casual employees working for the Yukon Government.

While we may not know the exact number of casuals working for the Yukon Government, by every anecdotal indication the number is substantial.

And, while the Public Service Act limits casuals to a maximum of two six-month terms of service, we have been told of casuals working more than that, with short “breaks in service” between each term.

Casuals are cheaper to use than permanent employees. Their wages don’t increase, their benefits are non-existent, and if they complain, they can be released immediately with no recourse.  The Yukon Government can use the cheaper casuals to avoid staffing with more expensive regular employees and avoid the political pain of adding to the official government employee ‘head-count’.

But here’s some good news -- the current dismal status of casuals in the Yukon appears to violate the Canadian Charter of Rights and Freedoms; particularly their right to Freedom of Association  s. 2(d).

In 2015 the Supreme Court of Canada clearly defined and entrenched the right of all Canadians to join a union by stating that this right is included under Section 2 (d) ‘Freedom of Association’ of the Canadian Charter of Rights and Freedoms.

In the MPAO[1] (Mounted Police Association of Ontario v. Canada [Attorney General]) decision the Court struck down part of the federal Public Service Labour Relations Act “PSLRA” and Section 56 of the Royal Canadian Mounted Police Regulations.

At the time of the court’s ruling, these two documents effectively prohibited members of the RCMP from forming or joining a union and bargaining collectively.

Of particular interest to us in the Yukon is the part of the federal Public Service Labour Relations Act that the court ruled had “no force or effect”.

Section 2(1) of the federal PSLRA defined employees as “a person employed in the public service”, subject to a list of exceptions, exceptions that included casuals, employees in managerial or confidential positions and RCMP members.

The Supreme Court said that excluding RCMP members from the definition of employee effectively removed these members from the federal PSLRA labour relations provisions. The Court found that this violated the RCMP members’ right to Freedom of Association under section 2(d) of Canada’s Charter of Rights and Freedoms.

In their six to one decision the court in MPAO noted that:

“Section 2(d) protects three classes of activities: (1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities. Viewed purposively, s. 2(d) guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals. This guarantee includes a right to collective bargaining. Collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association.”

And further

“The government cannot enact laws or impose a labour relations process that substantially interferes with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals. Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters. Similarly, a process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals. Whatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining.”

After stating that, the Supreme Court went on to rule that:

 “The purpose of para. (d) of the definition of “employee” in s. 2(1) of the PSLRA, viewed in its historical context, violates s. 2(d) of the Charter. The PSSRA and, later, the PSLRA established the general framework for labour relations and collective bargaining in the federal public sector. A class of employees, the members of the RCMP, has, since the initial enactment of this regime, been excluded from its application in order to prevent them from exercising their associational rights under s. 2(d). The purpose of excluding a specific class of employees from the labour relations regime in order to deny them the exercise of their freedom of association impermissibly breaches the constitutional rights of the affected employees.”

Of course, while the MPAO decision’s similarity with the situation of casuals being excluded from the definition of ‘employee’ is clear, the Supreme Court did not rule specifically on the case of casuals. That was not the issue in front of them at the time.

However, another Court has looked specifically at the casual situation.

In June 2009, six years before the MPAO decision, the New Brunswick Court of Queens Bench ruled on a case brought before it by the Canadian Union of Public Employees (CUPE) and its Council of Hospital Unions and several CUPE locals and casual employees[2].

CUPE brought the action after several attempts to bargain on behalf of casuals were rebuffed by the New Brunswick government who referenced the exclusion of casuals in the NBPSLRA.

CUPE argued that the New Brunswick Public Service Labour Relations Act “NBPSLRA” violated the Section 2(d) Charter Rights (Freedom of Association) by defining “employee” gas a person employed in the Public Service other than:

“…(e) a person employed on a casual or temporary basis unless the person has been so employed for a continuous period of six months or more.”

CUPE pointed out that in the NBPSLRA, bargaining units are comprised of “employees”, and the exclusion of casuals has the effect of denying casuals “…all rights pursuant to that legislation, including freedoms otherwise to be a member of an ‘employee organization’, to participate in lawful activities arising from that associated ‘right’ and to be free from intimidation or the threat of dismissal in exercising that ‘right’”.

In her judgement, Justice Paulette Garnett found that the “…exclusion of “casuals” from the protection of the PSLRA has had the effect of infringing their rights under s. 2(d) of the Charter.” She delayed her order for 12 months to give the government time to correct the situation.

Faced with that judgement, the New Brunswick government decided not to appeal the Court of Queen’s Bench decision, and in April 2010 passed legislation that extended collective bargaining rights to all casual employees from their first day of hire.

The Yukon situation...

In the Yukon, when the Yukon Public Service Act “YPSA” and the Yukon Public Service Labour Relations Act “YPSLRA” were enacted, they were essentially based on the existing federal legislation. Like the federal legislation, casuals are excluded from the definition of ‘employee’[3] [4]

This exclusion, in both Yukon acts, essentially denies casuals the right to be members of, participate in, or be represented by any bargaining agent that represents Yukon Government employees.

Because casuals are not deemed ‘employees’, they cannot be covered by the Yukon Employees Union Collective agreement, they cannot file a grievance or contest unjust dismissal. Because they are not deemed ‘employees’ casuals cannot join with other government workers to bargain to advance their interests, and to seek better terms and conditions of employment.

A casual’s terms and conditions of employment are unilaterally determined by the government (their employer) through regulation, not through collective bargaining:

YPSA Section 80: “A casual is entitled to the terms and conditions of employment established pursuant to the regulations and pursuant to policy directives issued from time to time by the commission.”

And

YPSA Section 87(1) “The commission has the authority to engage casuals and to establish their terms and conditions of employment.”

In the Yukon Public Service Labour Relations Act “YPSLRA”, the terms “employee organization”, “Bargaining Unit” and “Bargaining Agent” are all defined as being composed of “employees” – which, in that legislation, excludes casuals.

In the Yukon, casuals working for the Yukon Government do not even have the benefit of the Yukon Employment Standards Act. The Employment Standards Act includes casuals in its definition of ‘employee’ for all other workplaces, but it specifically excludes anyone working for the Yukon Government.

It has been more than 13 years since the New Brunswick court ruled that casuals must be considered employees in their Public Service Labour Relations Act.

It has been almost 8 years since the Supreme Court of Canada made the same determination for other employees excluded from the federal Public Service Labour Relations Act – the members of the RCMP.

In both cases, the exclusion was determined to be a violation of the Chart of Rights and Freedoms (section 2(d) – Freedom of Association).

Looking at the Yukon, it seems that now is a good time to start to remedy the injustice faced by casuals working for our government.

It’s time to win the largest group of precarious workers in the Yukon their right to join a union and to improve their situation.

It’s time to force the Yukon government to recognize casuals’ fundamental right to Freedom of Association.

Jim Crowell,
Yukon Employees' Union
A/Senior Labour Relations Advisor

[1] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SSCC 1, [2015] 1 S.C.R 3

[2] C.U.P.E. v. New Brunswick 2009 BBR 164, 2009 NBQB 164 New Brunswick Court of Queen’s Bench

[3] Yukon Public Service Act, Section 1.1 Interpretation

[4] Yukon Public Service Labour Relations Act, Section 1.1 Interpretation