In Paterson and Public Service Alliance of Canada (“PSAC”), the Federal Public Sector Labour Relations and Employment Board (the “Board”) provided key insight into the strike vote procedure in the federal sector.
On January 23, 2023, PSAC announced that it would hold a strike vote for four bargaining units in the core public administration that comprise more than 120,000 employees. Initially, the voting period was set for February 22, 2023 to April 19, 2023. On March 6, 2023, PSAC decided to revise the voting period to end on April 11, 2023. All bargaining unit employees, whether members of PSAC or not, were legally entitled to vote. However, under the PSAC Constitution and Regulations, voting eligibility was contingent upon attendance at one of several information sessions held over the course of the voting period. The vote was overwhelmingly in favour of the strike, but only one third of eligible voters cast ballots.
One of those who failed to cast a ballot was Mr. Paterson (the “Applicant”). He received notification of the initial strike vote announcement by mail indicating that the voting period was to end on April 19, 2023. However, he did not receive notification of the revised end date. The Applicant received notice by mail because he, like 14,188 other employees in his bargaining unit, opted not to provide PSAC with his email address.
Without knowledge of the revised end date, he planned to cast his ballot in the last week of the voting period. When he attempted to register for an online information session on April 11, 2023, he discovered that the voting period was ending that same day and that the final information session offered that day was at full capacity. As he could not attend the information session, he was ineligible to vote. Shortly after that, he filed an application with the Board.
The Applicant alleged that PSAC breached s. 184(1) the Federal Public Sector Labour Relations Act (the “Act”) by denying him a reasonable opportunity to participate in the vote. While the Board upheld the results of the vote due to the decisive percentage of employees who voted in favour of the strike, it expressed serious concerns over two “voting irregularities” apparent in the process: (1) the shortening of the voting period without sufficient notice being given to all employees; and (2) insufficient capacity in the information sessions to ensure that all employees could attend and thereby vote. In its reasons, the Board provides useful guidance on the appropriate procedures for strike votes in the federal sector. While this decision relates to the Act, it is still instructive for employers governed by the Canada Labour Code (the “Code”), which includes an identical requirement that a secret ballot strike vote must ensure that eligible employees “are given a reasonable opportunity to participate in the vote and to be informed of the results” (see Code s. 87.3(3)).
Interpreting the Act
The foundation of the Board’s analysis is its interpretation of s. 184(1) of the Act. This brought into play a discrepancy between the English and French texts.
The English version requires that all employees in the bargaining unit be given a reasonable opportunity to participate in the vote. However, the French version does not have the same reasonableness qualifier. Instead, it requires that all employees be given the opportunity to participate in the vote, which is a stricter legal standard.
When interpreting a bilingual statute where there is discordance between the English and French versions of a provision, decision-makers look for the common meaning that is consistent with Parliament’s intent. In this case, the French version better accorded with Parliament’s intent, having regard to the purpose of the Act and the Charter-protected right to strike.
Notably, s. 87.3(3) of the Code contains the same discrepancy in the English and French texts.
Shortening the Voting Period
The Board held that, by shortening the voting period with insufficient notice being given to voters, PSAC breached s. 184(1) by failing to provide all employees with the opportunity to participate. That is not to say that no notice was given, but simply that the forms of notice fell short of PSAC’s obligations. PSAC argued that it discharged its obligations by providing the revised end date in the following ways:
- updating its main webpage to reflect the new voting deadline;
- updating the online voting platform to reflect the new voting period;
- updating previous online posts that referred to the voting period to reflect the revised voting deadline;
- changing generic and targeted emails to employees to include the revised voting period;
- making several social-media posts with links to content that included the revised voting period; and
- including links to content that included the revised voting period in a digital advertising campaign.
The common shortcoming of all these communications is that none of them explicitly drew employees’ attention to the revised date. Rather, that information was available, but only to those who sought out the information by looking through the above resources. In the words of the Board:
The determination of accurate balloting dates should not be turned into something akin to a scavenger hunt, in which only those who are eagle-eyed enough to notice small, unannounced changes buried in emails have the information necessary to secure their right to vote.
In concluding its analysis on the end date change, the Board offered examples of communications that would have fulfilled the obligations:
- expressly calling attention to the date changes in PSAC’s emails;
- a press release announcing the changed dates; and
- a new mail-out to those it had advised of the vote by mail.
Information Session Capacity
Lack of capacity in the pre-vote information sessions was the second irregularity with which the Board took issue. The Board stated that, “something is definitely wrong if the online capacity is such that it deprives bargaining unit members of their right to vote.” In other words, those information sessions cannot act as a barrier to the right to vote. The Board also took issue with the fact that PSAC did not add any information sessions to replace those that may have been lost when the eight days of balloting were cancelled.
Despite the aforementioned irregularities, the strike vote results were upheld, not because the strike vote was conducted properly, but because the employees who actually voted were overwhelmingly in favour of the strike. The Board considered it highly improbable that fixing the irregularities would have changed the result. However, in concluding remarks, the Board recognized that, had the voting numbers been closer, the irregularities could have resulted in invalidation of the strike vote.
Guidance such as this is rare in the federal sector. Employers, unions and employees subject to the Act and the Code should take notice of the Board’s analysis, as it may serve as the foundation for future challenges to strike votes in the federal sector.
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The Firm gratefully acknowledge the assistance of Liam Billings, an Articling Student in the firm’s Toronto office.