Policy applied to individual behaviour, not conditions of employment
An employer’s mandatory vaccination policy was not a policy that changed the terms and conditions of employment for its workforce sufficiently to require 60 days’ notice under the BC Labour Relations Code, the BC Supreme Court has ruled.
The British Columbia Rapid Transit Company (BCRTC) operates an automated rapid transit system throughout Metro Vancouver called SkyTrain.
In March 2020, BCRTC introduced enhanced safety precautions and procedures in its workplaces in response to a provincial state of emergency that was declared due to the global COVID-19 pandemic. Employees were required to follow these measures that included physical distancing when possible, wearing face masks, and sanitizing equipment.
In 2021, vaccines against COVID-19 became widely available and, in October, BCRTC announced that it would be implementing a mandatory COVID-19 vaccination policy for all employees and contractors. Everyone had to be fully vaccinated by Nov. 29 and provide proof of their vaccination status to the company. Anyone who didn’t comply would be deemed ineligible to work and potentially face consequences.
The policy was implemented on Oct. 21 and the union expressed concern about the compliance date at the end of November. It requested that BCRTC withdraw the policy, but the company declined. However, it was willing to further discuss the policy’s implementation and impact.
60 days’ notice of policy
On Oct. 29, the union filed a complaint alleging that BCRTC breached the BC Labour Relations Code, which requires an employer to give 60 days’ notice of the introduction of a policy or practice that affects the terms and conditions of employment of a significant number of employees. In addition, the code requires the employer and the union to meet and develop an adjustment plan.
BCRTC argued that the code didn’t apply to its vaccination policy, as it was different than policies in which employees had to follow or face discipline or removal from the workplace. The policy didn’t change the terms, conditions, or security of employment; it was the employees’ own actions that determined if the policy had such an effect, the company said.
The BC Labour Relations Board determined that the code applied to BCRTC’s vaccination policy because it created organizational changes in the workplace, as it required employees to undertake a medical procedure and communicate confidential medical information and wasn’t directed just towards individual employee behaviour. The policy also created a new condition for continued employment, and the company breached the requirement to give 60 days’ notice, the board said. However, the board found that BCRTC did not breach the requirement to meet with the union.
Both parties applied for reconsideration of the decision – BCRTC on the decision that it breached the notice requirement and the union that BCRTC didn’t breach the meeting requirement.
Policy addressed individual behaviour
In August 2022, a reconsideration panel of the board granted BCRTC’s application for reconsideration and dismissed the union’s. The panel found that the vaccination policy was not distinguishable from other policies that dealt with individual employee behaviour, as any policy could be described as creating a new condition of employment. It also found that other policies may require employees to communicate confidential medical information, such as sick leave or attendance management policies, so the vaccination policy wasn’t unique in that way. The panel set aside the original decision and dismissed the union’s complaint, finding that the code didn’t apply to the introduction of the vaccination policy.
The union sought judicial review of the reconsideration panel’s decision.
The court found that the reconsideration panel engaged “in a meaningful statutory interpretation” of the BC Labour Relations Act and considered its words “in their entire context and in their grammatical and ordinary sense harmoniously within the scheme of the code.” The panel’s decision was within the range of reasonable outcomes and, given the deference that should be given to the board and its panels in such matters, there was no reason to stray from the decision, said the court.
The union’s application for judicial review was dismissed. See Canadian Union of Public Employees, Local 7000 v. British Columbia (Labour Relations Board), 2024 BCSC 55.
