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Three unions vie for certification of DOJ lawyers

|Written By Shannon Kari

A dispute about the compensation paid to Department of Justice lawyers in Toronto is likely to

be at the centre of a potentially fractious labour board hearing beginning this week in Ottawa.

Donald Eady
Donald Eady

A three-member Public Service Labour Relations Board panel will hear arguments from three competing parties in a certification hearing for Department of Justice lawyers across the country.

The Association of Justice Counsel, the Federal Law Officers of the Crown (FLOC) and the Professional Institute of the Public Service of Canada (PIPSC) are seeking certification for some or all of the lawyers employed by the federal government.

Lawyers at the Justice Department are now permitted to unionize under the Public Service Modernization Act, which came into effect in April.

The group known as FLOC is seeking a separate bargaining unit for approximately 300 DOJ lawyers in its Ontario regional office, which is overwhelmingly made up of counsel based in Toronto (the National Capital area is a separate region and not part of the Ontario office except for a small number of lawyers).

The AJC is arguing that it should be the national bargaining unit and is opposed to the application by the Toronto-based lawyers. PIPSC, which currently represents about 100 government lawyers not employed by the DOJ, is expected to argue that it should represent all federal government counsel. The Treasury Board has indicated that it wants the board to certify only one bargaining unit.

More than 90 per cent of non-management lawyers in the Ontario regional office have signed up with FLOC, according to documents filed with the board.

FLOC argues that it already exists as an established "sub-group" within the Justice Department as a result of a salary differential that has been in place since 1990.

The federal government agreed to pay higher wages to lawyers in its Toronto office as a result of retention and recruitment problems because of higher salaries paid to private lawyers and to provincial Crowns in Ontario.

There was also a one-time, eight-per-cent bonus paid in 2002, in addition to the so-called "Toronto differential," after an arbitrator's award increased the salaries of provincial Crowns in Ontario by about 30 per cent.

A somewhat confusing salary grid put in place by the Treasury Board makes it difficult to determine the exact differential. However, a lawyer with at least 10 years' experience would have a top salary of nearly $120,000 in Toronto and about $104,000 in the rest of Canada, as of April 2003. Senior DOJ counsel could earn $134,000 in Toronto and about $123,000 elsewhere.

In contrast, a number of senior provincial criminal prosecutors earned between $160,000 and $175,000 in 2004, according to information disclosed by the Ontario government. A number of senior appellate lawyers with the Ministry of the Attorney General's Crown Law Office also earned over $150,000.

The Toronto differential has been a source of dissension for DOJ lawyers in its Vancouver office and they filed a civil action in the B.C. Supreme Court, accusing the federal government of breach of contract.

Justice Lynn Smith ruled against the Vancouver lawyers in a decision released in April of this year. The judge sympathized with the plaintiffs and noted that the implementation of the Toronto differential in 1990 began a "downward spiral in the morale" of many lawyers in the Vancouver offices. She found, however, that the plaintiffs failed to establish that "their employment contracts contain an express or implied term that prohibits the defendant from setting rates of pay based on geographical location."

Donald Eady, who is acting for FLOC at the labour board hearing, said the need for a separate unit in Toronto is because of its "unique legal market," and not cost-of-living reasons.

He pointed to a consultant's report commissioned by the federal government that found in 2001 that salaries paid to DOJ lawyers were competitive except in the Toronto region.

The 2001 arbitrator's award also placed DOJ lawyers about 20 per cent behind the salary levels of their provincial counterparts.

The position of the AJC that all federal lawyers should receive the same salary scale as Crown attorneys in Ontario is "unrealistic," said Eady, a partner with Paliare Roland. FLOC makes up about 12 per cent of DOJ lawyers and Eady said it does not believe its interests will be properly recognized by a national bargaining unit.

Patrick Jetté, a Montreal-based prosecutor and president of the Association of Justice Counsel, said he is confident it would be successful in negotiating the salary increases for all DOJ lawyers.

"We will go to binding arbitration if we have to. The facts are in our favour," said Jette.

He added that if the AJC negotiated salaries comparable to Crowns in Ontario, then Toronto DOJ lawyers would simply "reach the top faster than we do. We think it is a fair way to resolve the question of regional rates of pay," said Jette.

In documents filed with the board, however, the AJC describes the rationale for the FLOC bargaining unit as "unprincipled." It suggests that a "fragmentation of bargaining units" on a geographical basis is inconsistent with the approach "adopted by all labour boards."

The initial phase of the labour board hearing is scheduled to conclude on Dec. 7. It will resume in January for final submissions.

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