Policy on Mandatory Standby Shifts was Unreasonable and Unfair, Supreme Court of Canada Holds

In Association of Justice Counsel v. Canada (Attorney General), the Supreme Court of Canada considered the scope of the “management rights” clause contained in a Collective Agreement between the Government of Canada and the Association of Justice Counsel (AJC) and struck down a mandatory requirement for government lawyers to be available for standby shifts for urgent immigration applications that might occur outside of regular working hours.


In unionized workplaces, labour arbitrators recognize management’s residual right to control the workplace and unilaterally impose workplace policies that do not conflict with the terms of the collective agreement. Management rights must be exercised reasonably and consistently with the collective agreement. In this case, the Collective Agreement, provided that the management rights clause had to be exercised “…reasonably, fairly and in good faith.


At issue was a workplace policy that imposed mandatory after-hours standby shifts for the lawyers who worked in the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice. The Government claimed that the policy was necessary to deal with urgent immigration applications that occur after-hours. Before the implementation of the policy, the employer had created a voluntary standby shift system whereby lawyers were given time off as compensation irrespective of whether or not they were actually called into work while on standby duty.


In the fall of 2009, the AJC and the employer finalized a Collective Agreement. As a result, many lawyers became eligible for overtime pay.  In March 2010, the Director of Immigration Law Directorate in the Quebec Regional Office informed the lawyers that they would no longer be paid for periods of time on standby, and would only receive compensation for hours worked. Each qualified lawyer was required to cover 1-3 weeks per year. A grievance was filed claiming that the directive was unreasonable and unfair. The adjudicator agreed and ordered the employer to stop applying the directive.


The Supreme Court upheld the adjudicator’s decision. The Supreme Court cited the well-established approach to determining whether a policy that affects employees is a reasonable exercise of management rights in the “balancing of interests” assessment. This requires a consideration of all of the surrounding circumstances such as the nature of the employer’s interests, whether less intrusive measures were available and the policy’s impact on the employees.  In this case, the Supreme Court agreed that the adjudicator’s decision fell within a range of acceptable outcomes and that the policy was not a reasonable exercise of management’s rights. The key factors were:


  1. Similar “availability clauses” are generally negotiated in exchange for some form of compensation;


  1. Policies that impacted the workplace during normal working hours are distinguishable from policies that impact time outside of regular working hours;


  • There was no mention of standby time in the lawyer’s employment contracts or job descriptions so the adjudicator questioned the necessity of mandatory standby availability without compensation;


  1. While standby duty may not have been taxing or onerous work (1-3 weeks per year), the adjudicator recognized that was a period of time during which the employer exercised a degree of control over the movements and activities of lawyers in their personal time.


The takeaway for employers is that this decision appears to focus on the negative impact that the policy had on the lives of the employees outside of their regular working hours. Conversely then, it could be argued that an employer has a wider latitude for making operational policy decisions that impact the workplace during regular working hours, provided that there is no conflict with other terms and conditions of a collective agreement.