NEW BRUNSWICK - EXCLUSION OF CASUAL PUBLIC SECTOR WORKERS
OVERVIEW
By
DAVID BROWN
Brown MacGillvray Stanley
The right of public sector workers to bargain collectively with the government of the Province of
New Brunswick and other publicly funded institutions, which in New Brunswick, includes
school boards, hospitals and crown corporations, is governed by the Public Service Labour
Relations Act 1973 RSNB Ch P-25); Collective bargaining for private sector workers within the
jurisdiction of the Province of New Brunswick is governed by the Industrial Relations Act,
1973 RSNB Ch. I-4.
Since the Industrial Relations Act (IRAct) expressly does not apply to the Province of New
Brunswick as an employer, the rights of public employees to collective bargaining is exclusively
determined by the PSLR Act. By definition, however, the legislation does not include all
persons who work as public sector workers in the Province.
The PSLR Act definition of employee provides in part:
“Employee” means a person employed in the Public Service, other than,
(c.1) a person not ordinarily required to work more than one-third of the normal period
for persons doing similar work;
and
(e) a person employed on a casual or temporary basis unless the person so employed for a
continuous period of six moths or more.
Only “employees” as defined under the legislation are permitted to apply to have their trade
unions certified as exclusive bargaining agent under the public sector legislation. Because of
their status as “casual”, these public sector workers exist in a legislative vacuum:

they are not “employees” under the legislation;

they cannot accordingly be officially represented by certified bargaining agents;

they do not enjoy any rights provided by collective agreements under this legislation;

they do not have any trade union rights that can be enforced under the legislation.
One can see that casual workers fall within the statutory exception because of the nature of their
employment, which though beyond six months is not considered continuous or because their
employment is continuous but for less than one-third of the normal period for persons doing
similar work, or because their continuous employment is cut off before six months (e.g.
seasonals).
The current estimate is that there are between 8,000 to 10,000 casuals without employee status
working for the provincial government doing work identical to that of permanent employees
engaged by the province in schools, hospitals and from corporations. This includes nurses and
hospital workers, teachers, snow plow operators, game wardens, stenographers and almost every
occupational category engaged by the province and provincially funded institutions.
Jurisprudence on casual workers attaining employee status
It is important to note that casual workers often do not attain employee status after working six
months. In fact many casuals have worked for many years without the right to unionize and be
covered by a collective agreement. They work side by side with those who have attained
employee status and yet are not protected by collective agreements and have very different
terms and conditions of employment.
The jurisprudence pertaining to the definition of employee shows how the legislation has made it
extremely difficult for casuals to obtain employee status under the PSLRA. Several main cases
illustrate the situation.
The first case if Re Martin (1981) 35 N.B.R. (2d) 365 (N.B.C.A.). Here, the casual person was
not obliged to work when requested to do so. She could work or decline work as she saw fit.
Therefore, the Court found that she had a new and separate contract of employment each time
she was requested to work and accepted that invitation. As a result, she had no continuous
period of employment, and no employee status.
The second case is Re Clarke (1983) 47 N.B.R. (2d) 1 (N.B.C.A.). Again the Court found that
the casual person there was free to accept or refuse any assignment offered to her. The employer
could not order her to work on a particular day. Therefore, each positive response on her part to
the employer’s request constituted an employment on a casual basis for the period which she
worked. Although Ms. Clarke had worked over 100 hours per month for 12 consecutive months,
she was held to not have a continuous period of employment, and was left without employee
status.
The third case is Stewart et al, (1985) 70 N.B.R. (2d) 93 (N.B. C. Q.C.), appeal dismissed by
Court of Appeal October 29, 1986. Here, the court concluded that two elements must be present
in order for a casual person to achieve employee status:
At the onset of the period of employment, the employer and the employee must both understand
that the term of employment is on a defined and regular basis for a period of six months or
more.
The person must ordinarily be required to work more than one-third of the normal period for
persons doing similar work.
Once again, a casual could actually work for many months or even years, and still never attain
employee status and the rights and protections attendant thereto.
Other cases which illustrate how public sector seasonal employees can be deprived of the right to
associate and unionize due to the restrictive definition of employee are Re Furlong (1973) 8
N.B.R. (2d) 157 (N.B.Ct. Q.B.) And Re Lee (1983) 49 N.B.R. (2d) 255 (N.B.C.Q.B.), appeal
dismissed 54 N.B.R. (2d) 326 (N.B.C.A.).
Such seasonal employees can work for up to 6 months per year for many years, but as long as
they are cut short of six months continuous employment, never attain employee status.
Cases such as Lee also show how a collective agreement cannot modify the statutory exclusion,
in order to cover workers without employee status. See also New Brunswick v. CUPE, New
Brunswick Council of Hospital Unions (1984) 57 N.B.R. (2d) 17 (N.B.C.Q.B.), and New
Brunswick Council of School Board Unions (N.B.C.A., April 12, 1985) and Stewart, supra.
Throughout the jurisprudence, the Courts make it clear that the statutory definition of
“employee” would have to be changed if the rights and protections of the PSLRA and collective
agreements are to be achieved. As stated by Mr. Justice Creaghan in Stewart supra, at p. 99,
paragraph 16:
Herein lies an anomaly which counsel for the respondent readily admits and which is of
fundamental concern to the applicants. Under the terms of the Act the employer can
prevent an employee hired as a casual from obtaining “employee” status under the Act by
interrupting any regular or defined basis of employment before a six-month period has
elapsed. I believe this is the way the employer perceives the law to be and from reading
of the law, I think it is correct. A response as to whether such a situations is appropriate
lies with the legislature not with the courts.
Lack of Statutory Protections and Rights
The PSLRA establishes the rules and procedures regarding the certification of employee
organizations as bargaining agents for workers, the duty of employers to bargain with these
bargaining agents regarding terms and conditions of employment, and the various protections
which facilitate organizing and collective bargaining, including: the prohibition against
interference by employers with employee organizations; the prohibition against intimidation and
coercion of workers by employers for union activity, including dismissal for union activities; and
other important protections.
Employees not covered by the PSLRA or by another statutes regulating collective bargaining are
excluded from the protection and coverage of collective bargaining legislation, and instead, are
governed by the common law.
Under Canadian law, without statutory protections for organizing, collective bargaining and
strike activity provided by the PSLRA, including administrative enforcement machinery,
workers are vulnerable to penalties (including dismissal), and to legal action being taken against
them for various acts of combination (including the torts of directly or indirectly inducing breach
of contract and conspiracy to directly or directly induce breach of contract). Employers are
under no legal obligation to bargain with employees over terms and conditions of employment.
Moreover, the common law has not recognized the binding nature of or enforceability of
collective agreements.
As a result, to be denied access to the statutory machinery of collective bargaining is to be denied
access to collective bargaining in any meaningful sense. In short, by removing any category of
workers from coverage under the statutory machinery, such workers are denied access to the
ability to organize and engage in collective bargaining, including protection from employer
reprisal for engaging in protected union activity, and the ability to enter into enforceable
collective agreements.
Comparison of PSLR Act (Public Sector) to IRAct (Private Sector)
There is a marked distinction between the definition of employee in the PSLRA and the IRA.
The former applies to public sector employers; the latter to private sector employers.
The definition of employee in s. 1 (1) of the IRA reads:
“Employee” means a person employed to do skilled or unskilled manual, clerical,
technical or professional work, but does not include
a manager or superintendent, or any other person who, in the opinion of the Board, is
employed in a confidential capacity in matters relating to labour relations or who
exercises management functions, or,
a person employed in domestic service in a private home.
Significantly, casual workers are not excluded from the definition of employee in the IRA.
There is no requirement that workers work a specific number of hours or continuous months in
order to have employee status and the rights afforded by the IRA.
To illustrate the discriminatory result: casual hospital workers are in the public sector under the
PSLRA, and so those without employee status are without the rights and protections of the
PSLRA. Casual nursing home workers are in the private sector, under the IRA, and so have the
rights and protections of the IRA. The same discriminatory result is pronounced when one
compares, for instance, provincial transportation workers, under the PSLRA, to municipal
workers under the IRA.
Affected workers do not have the protection of the statutory prohibitions against discrimination
or reprisal for engaging in activities of employee organizations, or against interference with
representation. Employee organizations cannot be certified as bargaining agents of these
workers. Employers of these workers are not under any legal obligation to engage in any
bargaining whatsoever regarding the terms and conditions of employment.
Affected Workers excluded from protection of the PSLR Act.
Casual workers who are not employees under the PSLRA do not have the same specific
protections granted to “employees” against anti-union discrimination or the specific acts of antiunion animus described in Article 1. In addition, any workers’ organizations that are formed by
the excluded workers are not “employee organizations” under the PSLRA, and so are not
protected from discrimination by employers as provided for under the PSLRA.
The workers excluded from the PSLRA have no right to strike and are not protected from the
imposition of penalties or dismissal should they strike. Workers at common law have no such
protection since a strike by non-unionized employees will always be illegal.
Conclusion
In summary, public sector workers employed within the provincial legislative jurisdiction of
New Brunswick on a casual basis do not enjoy any trade union right being specifically excluded
by statute. This group consists of thousands of workers in this relatively small jurisdiction.