Federal Crowns who wish to seek wage parity with Ontario Crowns, which could mean raises of up to 70 per cent over the next four years, will have the Association of Justice Counsel acting as their bargaining agent, the Public Service Relations Board has ruled.
The three-member panel ruled late last month on who should be certified to act in negotiations for the 2,800 federal Crowns. Both the AJC and the Federal Law Office of the Crown (FLOC), which represents about 400 federal Crowns in Toronto, as well as the Professional Institute of the Public Service of Canada (PIPSC), have been anxiously awaiting a decision since January.
"The board is satisfied that a majority of lawyers . . . wish to have the AJC as their bargaining agent," ruled the panel.
DOJ lawyers were permitted to unionize as of April 2005 under the Public Service Modernization Act, and since then the AJC and FLOC have been at odds.
The AJC was looking to act on behalf of all federal lawyers, while the FLOC wanted to act solely for the 400 Toronto-area lawyers. Both groups want to see the federal lawyers within their units get paid at the same rate as Ontario Crown attorneys.
Ontario Crowns ratified their salary deal last month and now a typical mid-range Crown who earns an average of $126,729 a year will have their salary boosted to $184,367, including merit pay, by April 2009.
In comparison, a typical mid-range Toronto federal Crown earning $124,940, who receives a 2.5-per-cent economic increase each year, would be making $137,910 by April 2009 ? a gap of almost $50,000 from their provincial counterparts.
The gap is even larger for DOJ lawyers outside Toronto, where a lawyer at the same level, who earns $108,525, would need an increase of 70 per cent to catch up with Ontario Crowns.
FLOC's position was that it could not be justified that lawyers living and working outside Toronto should receive that kind of pay boost, and that it could cause a chain reaction of other provincial Crowns wanting increases as well. The board disagreed.
"Lawyers in other regional markets, be they Montreal, Calgary, or Vancouver, may well argue that market forces are equally at play in their milieu. That fact does not, in itself, justify the creation of separate bargaining units."
Christopher Leafloor, president of FLOC, submitted to the board that "the AJC's position, favouring one national rate of pay at par with Ontario Crown attorneys, was unrealistic and would not be sustainable with the employer as only about 10 per cent of DOJ lawyers work in the ORO [Ontario Regional Office, excluding those employed in Ottawa]."
Donald Eady, counsel for FLOC before the board, said obviously the organization is disappointed with the decision.
"It felt that it had a good case for reasons why it should be in a separate bargaining unit from the rest of the federal lawyers," he tells Law Times.
Leafloor agrees and says it's hard to say at this point what will happen next.
"At this stage there are a number of potential options available to FLOC and we're considering and consulting about those various options," he says. "At this point, it's too early to say how that's going to unfold for us."
One of those options could include making an application for judicial review to the Federal Court of Appeal, a possible action open to FLOC until the end of the month.
The board found that the evidence of conflict between the two groups, at a time when both are vying for certification, does not establish that a service-wide bargaining unit would lead to unsatisfactory representation of the Toronto-area federal Crowns.
"The board does not find compelling the evidence of conflict that was presented, especially in a situation where collective bargaining has yet to take place for DOJ lawyers," the panel wrote.
"The board, in reaching its conclusion, also notes that both the FLOC and the AJC aim for the same objective: parity with Ontario Crown attorneys. The board, therefore, concludes that a single service-wide bargaining unit composed of all lawyers . . . is the only appropriate bargaining unit."
In submissions to the board, AJC President Patrick Jette said there was no hostility toward the Toronto-area lawyers in the rest of the country. It's his belief that the AJC will represent the interests of all lawyers, including those in Toronto, because they all have the same end goal.
Leafloor says if this judgment stands, the AJC has a duty to satisfactorily represent the interests of Toronto-area DOJ lawyers.
"If this is the lay of the land from here on in, what we're left with is that the AJC has a duty to fairly represent the interests of the Ontario Regional Office lawyers," he says.
"I guess what we'll have to do is hope that both sides can deal with each other fairly and we'll see how that unfolds."