Public service office mandate faces court scrutiny as judge orders full hearing

A Federal Court judge has ordered a full hearing on the Public Service Alliance of Canada’s bid to quash the government’s three-day-a-week office mandate for public servants.

The decision by Justice Glennys L. McVeigh opens the door for a full airing of the reasons behind Treasury Board’s decision in May to revise its return-to-office mandate, increasing in-office attendance to three days a week for public servants and four days a week for executives.

PSAC president Sharon DeSousa called the decision an “important win for federal workers fighting for a fair and transparent approach to telework.”

Treasury Board will now have to put on the record the justification and any evidence to back its decision to bring workers back to the office for three days. It’s unclear when that hearing will be.

The Treasury Board order, which comes into effect Sept. 9, came out of the blue without consultation with unions and threw the workforce into upheaval. Prior to the change, public servants were expected to come to the office for two to three days a week.

Workers were in an uproar, especially in the Ottawa-Gatineau region, where most departments are headquartered. Federal unions responded with a flurry of grievances and unfair practices complaints that will take months to wind through the Federal Public Sector Labour Relations and Employment Board.

In late May, PSAC asked the Federal Court for a judicial review to set aside the government’s revised return-to-office mandate as an “abuse of discretion and authority.”

Who is in charge, and what is to gain?

Treasury Board has long argued working conditions, such as location of work is a management right under the Financial Administration Act. PSAC is arguing that Treasury Board abused or exceeded its authority by upping in-office attendance for reasons that aren’t “valid, legitimate or consistent” with the act.

The union alleges the amended order was unnecessary for employment and workplace purposes while claiming it was done for “unauthorized or ulterior purpose” and irrelevant considerations that were not supported by evidence.

Treasury Board, however, countered with a motion to dismiss PSAC’s application for a judicial review and, failing that, to stay or delay the hearings until the other legal challenges are resolved by the labour board.

In the ruling issued Thursday, Justice McVeigh said the burden of evidence to strike or dismiss a judicial review is high, but the Attorney-General’s lawyers representing the Treasury Board failed to deliver the “knock-out punch” or “identify an obvious or fatal flaw” in the grounds for PSAC’s application to warrant dismissal.

“It cannot be said that the Attorney-General’s argument clearly renders the type of “show stopper” or “knockout punch” necessary to strike PSAC’s application at this stage,” she wrote.

She stressed, however, that her decision to reject the government’s motion to dismiss PSAC’s application should not be seen as supporting the union’s argument. Rather, she concluded the case should proceed and be fully argued with all the relevant evidence.

“I simply conclude that the parties must argue this matter based on a full record,” McVeigh wrote.

As for delaying the hearings, McVeigh noted that the length of delay in granting a stay is a significant consideration. PSAC argued the labour board could take several years to deal grievances and complaints. Last year, the average case before the board took 29 months.

The government argued that the courts shouldn’t be used as way to bypass labour board and its processes but McVeigh concluded that a delay “is not in the interest of justice.”

The return-to-office orders have led to one of the most contentious periods in federal labor relations in decades. It has ignited a major cultural and operational test for the public service. The unions are positioning the battle as labour’s next frontier for workers’ rights.

Pandemic-empowered public servants

Remote work during the pandemic gave public servants newfound power and control over their time – and they’re not letting go without a fight. They feel more productive, enjoy better work-life balance and have more child-care options. Plus, it’s cheaper: no commuting, parking, restaurant or takeout lunches.

The lack of consultation on the latest change has been a major sore point for unions. They argue that the decision wasn’t necessary for public servants to do their jobs and attacked it as unreasonable and unsupported by evidence.

They maintain it also undermines the Liberals political goals of protecting the environment and freeing up federal office space for affordable housing. And many simply believe the government caved to pressure from struggling Ottawa area businesses that depend on public servants commuting downtown.

Experts in management and public administration argue a case can be made about the importance of inculcating workplace culture and ethics, but that government has not made it well – and certainly not well enough to convince many workers.

Treasury Board maintains that three days a week in the office maximizes the benefits of working in person, such as better collaboration, onboarding new recruits and building a performance culture “consistent with the values and ethics of the public service.”

Last spring, unions vowed a “summer of discontent” to pressure the government into reversing the order that largely didn’t materialize. With Sept. 9 fast approaching, the four major unions held a series of townhalls this week laying out their ground game for the coming months.

They’re planning legal challenges and to swamp the system with individual grievances and duty to accommodate requests. There will be occupational health and safety complaints, rallies, protests and petitions.

The next step is to mobilize workers in departments and launch a national campaign later this fall. At PSAC’s last convention, delegates approved a $1-million ‘fight-back’ fund. Other unions are expected to join and kick in funds.

This article first appeared in Policy Options.