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Feds battle lawyers over robes

|Written By Tim Naumetz

OTTAWA - Federal lawyers who reached their first contract with the government through arbitration last year are incensed officials have gone to court in an attempt to roll back gains for meal allowances, court robe costs, and overtime.

The arbitration award provisions on travel compensation and meal allowances reflect directives covering other civil servants, says Marco Mendicino.

The Association of Justice Counsel, which itself has turned to the Federal Court to amend another aspect of the arbitration award, came out with all guns blazing in a statement to members included in its end-of-year newsletter.

The article said the federal attorney general served notice in early December of the court application on behalf of the Treasury Board. The application seeks judicial review over the arbitration award for overtime, travel-time compensation, meal allowances while working overtime, and court clothing.

The association calls the challenge on overtime and travel a “deliberate” attempt to “extinguish the one area in which we have the potential for true gains for the membership.”

But the newsletter goes further with a scathing attack on the challenge over meal allowances and court robes.

“This is a feeble attempt to be punitive, pure and simple,” the newsletter said. “This is a full-scale attack on the arbitral process and, regrettably, the battle lines have been drawn.”

The association represents roughly 2,700 federal lawyers, whose duties include acting for the government in courts and tribunals; staffing legal units in a myriad of departments and agencies; acting as counsel for the Public Prosecution Service of Canada; and helping cabinet draft legislation and regulations on a host of issues.

The arbitration tribunal under the Public Service Labour Relations Act awarded overtime pay in the lower classifications of the department’s law groups and established a regime of “exceptional leave with pay” of five days or more for senior lawyers required to work “excessive hours.”

As of May 10, 2010, the new salaries range from $59,845 to $85,381 for members of the lowest law group category other than articling students. In the highest law group category, lawyers will receive between $155,371 and $189,471.

The award for travel and meal allowances follow Treasury Board directives covering other public servants, says Marco Mendicino, acting president of the association.

The clothing allowance requires Treasury Board to reimburse lawyers up to $1,200 for a complete set of court clothing as long as they have not been paid for the items in the previous five years.

Replacement clothes are to be reimbursed “where existing items are no longer serviceable,” and the department’s lawyers are also entitled to a reimbursement of up to $100 for the cost of a new courtroom shirt each year.

For its part, the association’s application for judicial review is asking the Federal Court to reduce the implementation period for the overtime component of the award to 90 days from the 120 days set out by the arbitrator.

“On our reading of the act, he exceeded his jurisdiction,” says Mendicino.

“The Public Service Staff Relations Act essentially states the implementation period for any arbitration award has to be 90 days, save and except on consent of the parties,” he adds. “We’re saying, in that one-month span, many lawyers could work significant overtime. That’s the rationale.”

He notes the association is saving its discontent with other aspects of the award over overtime until the next round of bargaining for a subsequent collective agreement. The union had objected to several areas, including the fact that on any day when actual hours worked are more than 7 1/2 but less than 8 1/2, the lawyer shall be deemed to have worked 7 1/2 hours.

“I know of no precedent anywhere for such clause,” the association’s nominee to the arbitration panel wrote when the award was released.

While the government’s request for judicial review covers several areas, Mendicino says the association’s application is direct and limited.

“The remedy for us is quite straightforward,” he says. “If we prevail, and we have every hope and optimism that we will prevail, it will allow those hard-working lawyers who put in excess hours over the course of four weeks to start claiming that compensation earlier than they are allowed to right now.”

A spokesman for Treasury Board was unable last week to reach legal or departmental representatives to comment on the court actions.

  • Sarah
    It seems to me that there is a conflict of interest in the judicial review process: the Government is being represented by the lawyers who work for the Attorney General, thus the Federal Court will hear arguments from a Department of Justice lawyer on behalf of Applicant AND if the Applicant loses, it is lawyers from the Department of Justice that benefit. I wonder if anyone else sees this as a conflict?
  • Robes & Overtime

    Dave B
    I have worked for DOJ for 18 years and have never been paid for overtime. Since 1999, I have worked an additional five months of unpaid overtime.

    I do not ask for overtime and never expect to be paid for it.

    To N.D. and Rick, I say: "If you work an hour--overtime or otherwise--do you bill for it? Of course you do!"

    I simply want to be paid the same as other government lawyers. In fact, I would be happy being paid what other DOJ lawyers earn in Toronto.
  • robes

    Jean
    TB already IS paying for the robes. The isssue is that they wish to NO LONGER pay for them.
  • Robes

    Nancy
    Jean,

    The issue is how much TB will pay for robes, not whether they will or won't pay at all. The recent arbitral award states that TB must contribute $1,200 towards court clothing, while current TB policy only provides something in the neighbourhood of $600-$700 for court clothing.
  • Overtime

    Shar
    If I am not mistaken the overtime only applied to certain classifications; not all lawyers at Justice would receive overtime pay.

    This seems awfully unfair. I don't know why the union isn't taking a stand on this issue.

    The overtime rules should apply to all classifications.
  • Lawyer

    Stan
    ND - Justice lawyers have no problem working overtime, that's not the issue. They just want to be paid something closer to what other government lawyers are paid. Nobody wants to go grovelling to their boss to be paid for weekend work and justify their hours etc. They would much rather have a competitive salary instead. But until that happens, this is what they're stuck with. And, by the way Rick, overtime only clicks in once a lawyer has worked 8.5 hours a day.

    I am sure lawyers in private practice bill their clients for time worked on weekends, and expect to get paid. There is no "honour" in being expected to work for free, while I would agree that there is honour in hard work. Justice lawyers have been doing this for years and have continued to do so throughout this frustrating period.

    Also, nobody is arguing that Justice lawyers should get paid the same as lawyers in the private sector, but it would be nice to get paid something closer to what provincial lawyers get.


    As for the robes, it's rather a silly issue. I also felt no honour when I bought my own. Anyways, it's just hilarious that Treasury Board is going to Federal Court to argue the Arbitration Board's award was unreasonable in this respect - especially since TB selected the Chair who issued the decision.
  • lawyer

    John Inglis
    N.D. Mullins' reponse, as written, appears to imply that current government lawyers are not proud of their work, should be ashamed of wanting to be paid for the good overtime work that they do, and have the easy option of switching employers. None of those are true. There is no doubt that the federal lawyers work hard and are proud of their work, but no one should be expected to be proud of being exploited by a party with superior power. A government lawyer does not owe free overtime to the government any more than lawyers in private practice owe free overtime to their clients. If private clients don't pay, private lawyers get rid of them or take them to court. If the federal government refuses to pay for services rendered, what recourse to government lawyers have? And what does one think that private laywers on retainer to the government do? work overtime for free? The current government blows up more money in munitions every year in Afghanistan than it would spend on uniforms and overtime for our effective federal counsel who do work that directly benefits Canadians. I support the federal government lawyers in their very reasonable requests.

    regards,
    John Inglis
  • Lawyer

    Rick Sage
    Right on N.D.! The whingers at Justice have a great many perks of which the majority of the private bar may only dream. To add free robes, a new shirt every year and over-time after 7.5 hours is just a touch out-of-touch. Query, if a Justice lawyer were to leave for greener pastures would they have to return the robes (and the shirt)?
  • lawyer

    Bill
    N.D. Mullins ... I am assuming that when you worked for justice, you were not earning 40% less than the prosecutors with the province.
  • lawyer

    Keith A.
    I respectfully disagree with N.D. Mullins. I don't work at Federal Justice, but it seems to me that the Court Gown is a uniform required by law (court rules). The government seems to have no trouble supplying the RCMP's clothing, boots, and accessories, so why not the Crown Prosecutor's Court dress as well? After all, a gown lasts for years.
  • Barrister and Solicitor

    N. D. Mullins, Q.C.
    In my years with Justice,its lawyers were proud of working "overtime" to be the best they could be. Also a gown is a very personal item which we were proud to buy for our own use. If the kitchen i9s too hot, get out of it!
  • Sarah
    Why would anyone be "proud" to buy a court gown?
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