Law Times

Law TiMes • May 16, 2011 NEWS PAGE 3 Feds lose court bid to nix Crowns' overtime Government argued it's rare for lawyers to get paid for extra hours BY MICHAEL McKIERNAN Law Times A Federal Court judge has rejected a government attempt to roll back overtime and travel allowances awarded to federal lawyers dur- ing arbitration in late 2009. Th e Treasury Board of Can- ada had argued for a judicial review of the arbitral award on the grounds that it violated the Public Service Labour Relations Act and the Expenditure Re- straint Act, but Federal Court Justice John O'Keefe found the award was reasonable. He also dismissed a claim by the As- sociation of Justice Counsel, the body that represents 2,500 federal lawyers, that the allow- ances should have come into force earlier. Association president Mar- co Mendicino says he hopes the ruling brings an end to the uncertainty surrounding the arbitration award issued by a Public Service Labour Rela- tions Board arbitrator on Oct. 23, 2009. Th e agreement allowed law- yers in two of the unit's lower classifi cations to claim overtime when they worked more than 37.5 hours per week averaged over a four-week period or for any hours worked on a day of rest. Th e award also allowed for compensation for travel time. Th e government dropped fur- ther claims related to robe costs and meal allowances before the court heard the matter. "We're obviously pleased to have some resolution," Mendi- cino says. "It's recognition of the fact that our people work long hours, that our positions are not 37.5 hours per week, and it's an affi rmation of the arbitration board fi nding that this is a fair way to compensate for excessive hours. It is really time to put this issue to rest so that our members and manage- ment and the government can move on and start to refi ne the system so that it works for all parties. It also really stops them from being able to carry out any kind of a clawback." Mendicino was angered last summer when a Treasury Board memo to lawyers covered by the agreement suggested the government could claw back overtime and travel allowances that had already been paid out since the agreement came into force in February 2010 if its Federal Court application was successful. "We thought that was an egregious step, which was designed to discourage our members from making any claims," Mendicino says. Treasury Board had nothing to say about the judgment last week except to note that the government is reviewing it. But when the memo became public last summer, spokesman Pierre- Alain Bujold denied Mendi- cino's claim to Law Times. Untitled-3 1 "As has been done in simi- lar cases, the government sent a letter to members covered by the award to inform them of the potential implications of the court's decision should it rule that the award should not have been given," he said. Th e association was certifi ed as the bargaining unit for the federal lawyers in 2006 follow- ing the passage of legislation that allowed Department of Justice counsel to bargain col- lectively for the fi rst time. Th e lawyers perform a variety of duties across various govern- ment departments and agen- cies, including acting in courts and tribunals and assisting with the drafting of legislation. Treasury Board asked to re- fer the matter for arbitration in September 2008 after failing to come to an agreement with the association. In the time between the referral and the beginning arbitration board found the act limited its power to rule on sal- ary increases and performance pay and prohibited new forms of additional remuneration. In the judicial review appli- Marco Mendicino hopes the rul- ing puts an end to uncertainty over the agreement. of the arbitration process, Par- liament passed the Expenditure Restraint Act aiming to limit the federal government's salary costs. In the case of the association, the cation, counsel for the attorney general of Canada argued the paid overtime went against the spirit of the act because it po- tentially increased government expenditures on employment. Th ey also argued it's rare for law- yers of any kind to receive over- time pay and that workplace dis- ruption could ensue as managers struggle to assess the reasonable- ness of an overtime claim. But O'Keefe sided with the association, which said there was no evidence that overtime pay would be unworkable. It also argued its members earn less than comparable lawyers. "Stating that private sec- tor lawyers, or those in the public sector employed at the provincial level, do not receive overtime pay may not be a fair comparison as those lawyers are often paid higher wages," O Keefe wrote. In a separate Ontario Superi- or Court action, the association has launched a constitutional challenge of the act. It alleges the legislation interfered with its right to bargain collectively. "Federal lawyers entered into collective bargaining with the reasonable expectation that we'd be able to address historic wage gaps between ourselves and comparators who work for the provincial Crown," Mendi- cino says. "It's impossible for federal lawyers to negotiate in good faith if we are constantly facing the prospect of legisla- tion that predetermines the outcome." A Superior Court judge who heard the case last month has reserved judgment. www.ERAssure.com Estate trustees need good counsel – and risk protection. New ERAssure is the only errors and omissions insurance available for estate trustees. ERAssure is a trademark of Estate Risk Protection Plan Inc. Today's estate trustees take on what has always been a complex role in an increasingly complicated environment. 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