A Philadelphia union sued the city over remote work. Could that happen in Ottawa?

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As workplaces grapple with a post-pandemic return to office, a union representing thousands of Philadelphia city employees recently filed a lawsuit over a requirement for staff to work on-site full-time as of mid-June.

The Philadelphia union criticized the decision, noting concerns about available office space and arguing that it “unilaterally imposed” the change instead of going through collective bargaining. The city’s mayor, Cherelle Parker, said her administration did not believe the new policy was subject to collective bargaining.

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The situation is eerily similar to the battle taking place around remote work in Canada — except unions can’t sue the federal government over the issue. However, measures can be taken at the union and individual levels.

In May, the federal government updated its policy, requiring all public servants to spend at least three days a week in the office by mid-September. For executives, the requirement will be four days.

The decision has been met with frustration from both employees and unions, which have promised to fight the mandate.

So far in what the unions have promised to be a “summer of discontent,” the Canadian Association of Professional Employees (CAPE) and the Public Service Alliance of Canada (PSAC) have withdrawn from consultations with the government on its telework policy.

Several unions, including CAPE, PSAC and the Association of Canadian Financial Officers, have also filed grievances against the government and unfair labour practice complaints with the Federal Public Sector Labour Relations and Employment Board.

Melanie Sutton, a labour and employment lawyer with Ottawa-based firm Nelligan Law, says that’s pretty much all that can be done in Canada as all labour relations between unions and employers must follow administrative processes.

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“Parliament has enacted that legislation to say that, for any labour relations question, we’re going to deal with this outside of the court system,” said Sutton, referencing the Federal Public Sector Labor Relations Act and the Canada Labour Code.

When the 2023 PSAC strike ended, the union trumpeted its gains to its membership about new language around the future of telework. Union members were told that they’d be protected from arbitrary decisions about remote work by the government and that telework requests would be considered on a case-by-case basis, preventing a “one-size fits all” hybrid work model like one announced in late 2022.

A letter of agreement with the government promised the creation of panels to address employees’ concerns about work arrangements and a joint consultation committee to review the government’s directive on telework.

Following the strike, however, the government stressed that the letter did not enforce the review of the government’s direction on prescribed presence in the workplace, which sets the guidelines on how often workers must be in the office.

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The government has maintained that decisions about remote work are their prerogative, with Treasury Board Anita Anand indicating that hybrid work was “not a collective bargaining chip” and was not part of the collective agreements.

“To be clear, the direction on prescribed presence in the workplace and the directive on telework are distinct from each other and neither is part of the collective agreements,” Anand previously told this newspaper.

Another option for unions, Sutton says, is filing human rights complaints. She adds, however, that they have to be made on behalf of an individual or a group of individuals who are similarly affected by a policy or decision, whether they have a medical issue or are the primary caregiver for a family member.

Sutton says that, while unions could file a joint human rights complaint on behalf of several people, they still have to prove harm to each individual.

“I wouldn’t be surprised if we see unions bringing those complaints on behalf of some of their members who it’s really either impossible or very difficult for them to come into the office three days,” said Sutton, who noted that, depending on the specific collective agreement, internal processes may need to be followed first. “The tribunal is never going to say that the government can’t have this policy. It would say, for example, that the government has to be mindful of providing exemptions or accommodations where necessary.”

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CAPE president Nathan Prier said that union had filed unfair labour practices and grievances and was working with members to “develop a workplace plan to make the profoundly wasteful and anti-worker prescribed presence in the workplace policy unenforceable.”

He said CAPE was also working to build a community coalition in the National Capital Region to hold Anand and the rest of the government accountable to commitments around housing, child care and the environment.

“We’re encouraging all members with human rights grounds for accommodations to contact their labour relations officer if they’re being refused accommodations,” Prier said.

Gilles LeVasseur, a professor of management and law at the University of Ottawa, said that, while the government had the legal right to make decisions on telework, unions could argue that the policy update was made “in bad faith.”

“You have to keep the fire burning,” LeVasseur said, noting that the unions must show they were willing to fight. “Your power of negotiation is limited.”

In limited cases where a matter is not included in a collective agreement or the Canada Labour Code, LeVasseur said an individual could go to the court as a plaintiff, with the union able to act as an intervener. However, grievance and complaint processes must be followed for issues like remote work, which is included in separate letters of agreement.

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Sutton says it’s sometimes possible to see labour complaint decisions reviewed by a court to make sure the process has been followed and the decision is reasonable.

“It’s not the same thing as suing the employer and it’s not the same thing as an appeal,” Sutton said. “You will sometimes see those decisions get to court if things have been contentious all the way through.”

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