Federal inmates working under the institutional program are not employees and cannot form a labour union

Par Annie Marquis

Par Annie Marquis

In Jolivet v. Treasury Board (Correctional Service of Canada), the Federal Court of Appeal dismissed an application for a judicial review. Mr. Jolivet, incarcerated in a federal penitentiary, is a member of the Canadian Prisoners’ Labour Confederation (CPLC) which represents the inmates participating in institutional work programs.

Background
Mr. Jolivet requested the right for inmates to sign up membership cards of the CPLC. The officials of the Correctional Service of Canada refused his demand. Mr. Jolivet filed a complaint to the Public Service of Labour Relations Board stating a contravention to section 186(1) of the Public Service Labour Relations Act:

“186(1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall 

(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or
(b) discriminate against an employee organization.”

The Board, following a consistent line of jurisprudence, dismissed the claim without considering the merits and confirmed it has no jurisdiction to lodge the complaint. Inmates participating in institutional work programs do not meet the statutory definition of “employee” in the federal public service under subsection 2(1) of the Act. Consequently, the CPLC could not be recognized as an “employee organization”.

Mr. Jolivet argues that the leading case the Board relied upon was outdated and irrelevant. He added that the Board should have considered the merits of his demand according to the Canadian Charter of Rights and Freedoms.

Analysis
The Federal Court of Appeal agreed with the conclusions of the Board and dismissed the judicial review as follows:

“[9] […] Specifically, we find that the Board’s understanding of the facts was open to it on the evidence before it, and the Board’s analysis of the jurisprudence and the relevant statutory provisions is well explained and soundly reasoned. We find specifically that the principles from the Econosult case upon which the Board relied are binding on the Board and this Court.

[10] Although the legislation relating to employment in the public service has evolved since the Econosult case was decided, the fundamental principle that employment in the public service is subject to specific legislated formalities remains valid. Inmates participating in work programs organized by the Correctional Service of Canada have not been appointed to a position in the federal public service. As a result, they are not “employees” within the meaning of the Act.”

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