On-Call Duty Obligations Imposed by the Employer Found to Violate AJC Members' Privacy Rights - Employer Ordered to Stop :: Association of Justice Counsel News
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April 10th, 2015
April 10th, 2015

On-Call Duty Obligations Imposed by the Employer Found to Violate AJC Members' Privacy Rights - Employer Ordered to Stop

After a long battle that started in 2010 that resulted in the Federal Court ordering a new adjudication hearing we are pleased to announce that the AJC has finally made some headway.  The decision (which is only available in French at the moment but which will be translated and published by the PSLREB very shortly) states that effective April 2, 2015, the employer is to cease its current unilateral mandatory on-call duty policy on the basis that it violates AJC members' privacy rights.  The Employer's on-call duty rules imposed restrictions on AJC members while off duty.  While the policy grievance focussed on the employer's practices at Immigration Law Division in the Quebec Regional Office, this decision could have widespread implications across the country and here is why:  

The adjudicator ruled that sections 5.02 and 6.01 of the collective agreement were violated.  More specifically:

  • management rights were not exercised in a reasonable manner;
  • the directive imposing restrictions on one's personal activities while off duty was said to violate privacy rights protected under section 5 of the Quebec Charter of Human Rights and Freedoms and section 7 of the Canadian Charter of Rights and Freedoms;
  • the employer's unilateral directive governing on-call duty obligations, which imposed restrictions on personal activities while off duty, was found to be unreasonable and ultimately in the context of DOJ's Montreal Immigration Law Division, an unjustified violation of AJC members' privacy rights;
  • the employer was ordered to cease and desist from applying such directive effective April 2, 2015, the date of the ruling.

A similar policy grievance involving DOJ's Toronto Immigration Division was filed in 2010 whereby Treasury Board and the AJC agreed to be bound by the Montreal policy grievance outcome.

What does this decision mean for the membership right now?

First, it means that the employer no longer has a right to require these members to be on call.  

Second, our members in the Immigration Law Division in Montreal and Toronto have the right to immediately refuse to cover after-hours on-call duty.  

Why is DOJ continuing to require on-call services in Montreal and Toronto Immigration Law Division and what is the AJC doing about it?

We find DOJ's failure and/or refusal to comply with the adjudicator's ruling very troubling.  In response, we have requested that the PSLREB file its decision in Federal Court in order to pursue the enforcement of the ruling.  

In addition, we have put DOJ and TB on notice that our advice to affected members in Montreal and Toronto will be to refuse to be on call on the basis that such a request or requirement is in violation of the collective agreement, the adjudicator ruling and in the case of Toronto, in violation of the grievance settlement agreement.  Our letter to the Deputy Minister was delivered prior to the issuance of this communique.

Going forward, the parties will need to consider negotiating compensation terms for this group, as well as other members assigned to on-call duty, assuming that the employer still wishes to maintain an on-call service delivery model.  The AJC agreement appears to be the only collective agreement in the public service (originally imposed by an arbitral ruling) which did not provide for compensation for call duty.  Other federal public service collective agreements where on-call duty is required actually provide for compensation.

We have reached out to Treasury Board to get its take on what it intends to do having regard to:
  • Immigration Law Division location requirements across the country;
  • other circumstances that fall outside the immigration law services context; and
  • less impairing options to on-call requirements.

We certainly hope that Treasury Board will adopt a consultative approach by negotiating a mutually acceptable practice this time so that we can be assured of fair and reasonable treatment.

We want to thank our resolute members in Montreal who came forward and testified at the initial hearing.  Without such members, we would have been unable to meet our evidentiary burden.  A special thanks to Joanne Granger, our former AJC Governing Council representative in the Quebec Region who supported the membership unconditionally.

Should members have any questions about the application of this order, we encourage you to contact the AJC at admin@ajc-ajj.com .

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