A Federal Court judge has ordered a full hearing on the Canadian Union of Public Servants’ challenge to the federal government’s return-to-office directive.
Judge Glenys L. McVay on Thursday rejected an attempt by the federal government to dismiss or stop the challenge, saying both sides must argue the issue based on a full record.
The federal government issued a directive in May requiring workers to report to the office at least three days a week, or 60% of their usual weekly or monthly work schedule, which goes into effect on September 9.
Within a week of the May announcement, PSAC launched a complaint about the policy, two complaints with the Federal Public Sector Industrial Relations and Employment Commission, and an application for judicial review in the Federal Court.
The federal government has sought to dismiss the case or to have it stayed until all other lawsuits are resolved. In a court filing last month, the government argued that “courts should not intervene in employment disputes until the prescribed procedures have been exhausted.”
But a federal court sided with the union and allowed the case to proceed to full trial.
A Federal Court judge has ordered a full hearing on the Canadian Union of Public Servants’ challenge to the federal government’s return-to-office directive. Deputy Clerk of the Privy Council Christian Fox says the government “want to maximise teamwork”. Canadian Union of Public Servants national executive vice-president Alex Silas responds.
“As the moving party with the burden of proof, the Attorney General had the burden to present a ‘knockout punch’ argument that addressed each of PSAC’s allegations,” Judge McVay wrote in his decision, adding that the government had not met that burden.
“While I will not exercise my discretion to deny the application at this stage, this decision should not be construed as an endorsement of PSAC’s arguments. I simply conclude that the parties must argue this matter on the basis of a complete record.”
Nevertheless, unions welcomed the decision.
“I think this is a very important victory for workers’ rights and the fight against the government’s arbitrary teleworking mandate,” PSAC national president Sharon DeSouza told CBC News, referring to the court’s decision.
“We don’t know why they made this decision. We hear words about collaboration and office culture, but we don’t have the data. We don’t have the information about why they made this decision. So this is what we’re going to get at this hearing, and ultimately when the day comes when we testify in court.”
“It doesn’t make sense.”
DeSouza said the union ultimately wants remote work arrangements to be evaluated on a case-by-case basis.
Complicating the return-to-work directive is that some PSAC members have been offered and accepted government jobs located far from where they live, she said.
PSAC does not have data on how many of its members are in such situations, deferring to the government on employment figures.
Meanwhile, the court referred the case to a case manager to enable the parties to schedule a hearing.
However, a date for the case management conference has yet to be fixed, making it unlikely that a hearing will take place before the deadline of September 9. De Souza said PSAC had advised its members to follow “the instructions given” by the government regarding the conduct of their work in the offices, and failure to do so could result in disciplinary action.
The union launched a petition on Wednesday calling on the government to revoke the directive and take action on an individual basis. The petition had garnered about 26,000 signatures by Friday afternoon, the union said.
“What we have right now is workers who were hired to work remotely during the pandemic and are now traveling to an office on the other side of the country, and they’re being told to drive to work, or they would otherwise have to commute for hours,” DeSouza said.
“It doesn’t make sense.”
Unions representing federal employees are predicting a “summer of discontent” as they rage over a new government directive that requires federal workers to return to the workplace at least three days a week.
Some people claim that being in the office improves performance.
Privy Council Clerk Christian Fox said on CBC’s “Power & Politics” on Friday that many federal civil servants, such as nurses and prison guards employed by the federal government in Indigenous communities, already work five days a week.
Asked what consequences workers would face if they did not comply with the directive starting Sept. 9, Fox said he believed the vast majority of public servants would comply with the directive.
“I think people want to comply with what their employers are asking them to do,” she said.
“They want to serve Canadians, so if we’re not in compliance, then of course people have to follow the structure and the direction of the Treasury Board and we expect them to do that.”
“If they don’t, we will take appropriate steps to address them from a management and employer perspective.”
Fox also reiterated that having employees physically in the office has improved collaboration on complex files, noting that this is one of the drivers for bringing employees back to the office.
“I played basketball at Carleton University and I was able to hit basketballs every day in my driveway and become a better shooter,” said Fox, who also played football for the Carleton Ravens.
“But if you don’t practice with your team, you can’t win. I think the same thing happens in the workplace. There are things you have to do together.”
