Unionized Judges’ Secretaries
Do Not Threaten Judicial Independence
In a decision of the Court of Appeal for Ontario, released
December 7, 2000, the Court of Appeal considered an Ontario Labour Relations
Board decision finding the duties and responsibilities of 33 judges’
secretaries did not constitute a conflict of interest with their membership in
a bargaining unit. Although more than 250 judges’ secretaries have been
members of OPSEU’s bargaining units since the 1970’s, the Crown argued
before the OLRB that they were there in error.
At issue in this appeal was the interpretation by the OLRB
of s. 1.1(3) para. 15 of the Crown Employees Collective Bargaining Act,
1993, S.O. 1993, c. 38, which states:
This Act does not apply with respect to the following:...
Other persons who have duties or responsibility that, in
the opinion of the Ontario Labour Relations Board, constitute a conflict
of interest with their being members of a bargaining unit.
The court noted that there was no evidence before the OLRB
of any conflict between a judge’s ability to perform his or her judicial
role independently and a secretary’s bargaining unit membership.
The most serious potential for interference with judicial
independence alleged was in the event of a strike or lockout. However, the
legislation protects judges’ secretaries as essential in the event of a
strike or lockout.
The Court further noted:
The employer of judges’ secretaries is the Crown, not
the judiciary. Legally, the Crown as employer, not the judiciary, has
ultimate authority over issues such as the hiring, firing, salary or
classification levels of its employees, including judges’ secretaries.
Occasional and even frequent consultation by the Crown with the judiciary
does not change who the employer is.
What unionization does not do, therefore, is interfere
with judicial independence by depriving judges of any pre-existing
independent authority over their secretaries. Instead, unionization offers
to their secretaries the right to collectively bargain their working
conditions, rather than having them imposed by fiat by the Crown.
Understandably, the Crown was not prepared to acknowledge, as some do, that
its role as employer of judges’ secretaries itself represents a potential
threat to judicial independence. Yet, logically, if the Crown’s unilateral
capacity to interfere with the working conditions of judges’ secretaries
represents no such threat, it is difficult to see how unionization creates
one.
I see nothing inherent in the concept of judicial
independence which entitles the judiciary presumptively to deprive employees
with whom it works of the right to union membership.
The Court does not view unionization of judges’
secretaries as any additional threat to judicial independence.
