CANADIAN UNION OF PUBLIC EMPLOYEES, Applicant v RESORT VILLAGE OF CANDLE  
LAKE, Respondent  
LRB File No. 150-21; July 26, 2022  
Chairperson, Susan C. Amrud, Q.C.; Board Members: Maurice Werezak and Jenna Moore  
For Canadian Union of Public Employees:  
For Resort Village of Candle Lake:  
Jake Zuk  
Mitchell Holash, Q.C.  
Application for bargaining rights Administrative assistants are employees  
within the meaning of Part VI of The Saskatchewan Employment Act.  
Application for bargaining rights Bargaining unit consisting of three  
administrative assistants is appropriate for collective bargaining Order  
granted that votes be tabulated.  
Board has jurisdiction to hear application Essential character of issue in  
this matter does not arise from dispute respecting meaning, application or  
alleged contravention of collective agreement entered into by Employer with  
separate bargaining unit of employees.  
Administrative assistants are not bound by collective agreement entered  
into by Employer with separate bargaining unit of employees Exclusions  
from bargaining unit to be made on as narrow a basis as possible.  
REASONS FOR DECISION  
Background:  
[1] Susan C. Amrud, Q.C., Chairperson: The application before the Board in this matter is  
an application for bargaining rights filed by the Canadian Union of Public Employees [“Union”] on  
behalf of three administrative assistants employed by the Resort Village of Candle Lake  
[“Employer”].1 However, some background is required to fully understand the issues raised in this  
matter.  
1 LRB File No. 150-21.  
2
[2]  
On May 7, 2007, the Board issued a Certification Order binding the Union and the  
Employer, with respect to the following bargaining unit: “all employees employed by the Resort  
Village of Candle Lake in Saskatchewan, excluding the Resort Village Administrator and  
provisionally excluding the Administrative Assistant”.2 The provisional exclusion became  
permanent on May 7, 2008, as neither party applied to the Board for a variation of the Order.  
Since that time the parties have bargained modifications to the scope clause in their collective  
agreements. The scope clause in the current collective agreement (January 1, 2020 December  
31, 2022) reads as follows:  
3.01 This agreement shall cover all Employees employed by the Employer except the  
Resort Village Administrator, Assistant Administrator, Administrative Assistant(s),  
Maintenance Manager and Payroll Manager.3  
[3]  
On October 15, 2021, Local 4838 of the Union filed an Application to Amend the 2007  
Certification Order, to include in the bargaining unit employees working in the classification of  
Administrative Assistant.4 On November 9, 2021, following receipt of the Employer’s Reply, the  
Union withdrew that application. The Union filed the Application for Bargaining Rights at issue in  
this matter on November 17, 2021. It proposes a bargaining unit of all administrative assistants  
employed by the Employer. At the beginning of the hearing into this matter the Union suggested  
that the two applications could be considered as alternatives by the Board. However, because  
the Application to Amend had been withdrawn, the Board ruled that was not an option.  
Evidence:  
[4]  
All three administrative assistants employed by the Employer gave evidence, as did the  
Chief Administrative Officer (CAO). Besides the CAO, the Employer employs four other out-of-  
scope managers: Manager of Public Works, Manager of Finance, Planning and Development  
Manager and Manager of Recreation and Community Development. The Employer also employs  
an out-of-scope Community Service Officer/Sargent who operates outside the administration and  
reports to the CAO in his role as Chief of Police. In a workforce of 14 employees, 9 are out-of-  
scope.  
[5]  
In fall of 2020, following an election that saw the entire Resort Village council replaced,  
consultants were brought in to review the office. In the reorganization that followed, the CAO and  
2 LRB File No. 035-07.  
3 Exhibit E3.  
4 LRB File No. 130-21.  
3
Public Works Manager were released and the administrative assistants were all reassigned to  
new duties.  
[6]  
Peggy Watt is the Reception Administrative Assistant [“RAA”]. She has been employed by  
the Employer since 2014. She worked as parks and recreation administrative assistant for a  
month, then as RAA until 2018, when she added payroll clerk to her duties. She returned to the  
role of RAA as part of the reorganization effective November 1, 2021. The job description for the  
RAA sets out the following duties:  
1. Greets customers at the customer counter and on the phone, responds courteously  
and constructively to public requests and complaints by providing or obtaining the  
appropriate information and/or directing to appropriate person.  
2. Receives all payments including but not limited to: utility, tax, general invoicing, parks  
and recreation invoicing, planning department activities, building and development  
permits, dog licenses, government grants and other payments.  
3. Prepare deposits of cash, cheques and debit slips.  
4. Complete property tax searches and certificates.  
5. Manages pre-authorized tax and or other fee payments.  
6. Maintain the RV Park and business license records, agreements, invoicing,  
collections and inquiries.  
7. Processes cemetery service requests by coordinating plot sales, perpetual care sales  
and determining interment details. Refers interment details internally and externally.  
8. Provides regulations, permits and direction regarding the installation of monuments  
at the cemetery.  
9. Assists with researching information such as legislation, bylaws, reports, contracts,  
files, minutes and any other assigned matters.  
10. Orders office supplies and maintains office filing system.  
11. Acts as a back-up to the Finance Administrative Assistant when required.  
12. Assists with the preparation of annual audit working papers.  
13. Assists as required with the preparation of the annual financial plan.  
14. Participates in various special projects and any other duties as assigned.5  
5 Exhibit U2.  
4
[7]  
With respect to #9, Watt described this duty as occasionally helping someone find a bylaw  
or copies of minutes. She has no role with respect to council meetings. With respect to #11, Watt  
indicated that in the absence of the finance administrative assistant [“FAA”] she will do payroll.  
With respect to #12 and #13, her role is to find copies of documents requested by the auditors  
(e.g., receipts). Any requests are made to Watt by the Manager of Finance. She has no  
involvement with Union bargaining or grievances. She does not attend in camera meetings of  
council. She sees confidential information respecting land development and supplier bidding that  
comes into the office.  
[8]  
Bonnie Kalynowski has been employed by the Employer since 2018. She started initially  
as RAA. Her description of the duties of that job were consistent with Watt’s description. In  
November 2020 she became the FAA. In this role she assisted the CAO with building permits, by  
receiving the applications and reviewing them to determine whether all necessary information was  
included. The permits were then reviewed by the Planning and Development Manager and the  
Building Inspector, whose job it is to determine whether they will be approved. Following their  
approval, Kalynowski prepared the invoice and permit and documented it on a spreadsheet. She  
attended hearings of the appeal board strictly as an observer. She also received invoices from  
vendors, coded them, entered them into accounts payable, ran cheques and filed the paperwork.  
She had no role respecting payroll and no role respecting the Union.  
[9]  
In the November 2021 restructuring, Kalynowski was assigned to the role of  
Planning/Administration Administrative Assistant [“PAAA”]. She reports to both the Planning and  
Development Manager and the CAO. The job description for PAAA sets out the following duties:  
1. Attends meetings of Council, Committees, Public Hearings, and other meetings as  
required by Council or the CAO.  
2. Creates monitors and maintains confidential in camera, employment, commercial and  
legal files.  
3. Prepares and records minutes of all in camera, Committee of the Whole, Public  
Hearings, and regular Council meetings and is responsible for any assigned follow-up  
from Council or Committee of the Whole meetings.  
4. Assists with researching information such as legislation, bylaws, reports, contracts,  
files, minutes and any other assigned matters.  
5. Prepares agenda and Council packages for Council meetings as directed by CAO.  
6. Assists with posting information on the Resort Village’s website and other social media  
applications to keep the organization and the general public informed and current  
about projects, events and policies.  
5
7. Ensures that Resort Village property lists are kept current and accurate.  
8. Receives, distributes and disseminates incoming mail (both electronic and hard copy)  
for Council and CAO.  
9. Assists the CAO with the human resources function including recruitment and  
retention, training and development, performance management, health, safety, and  
wellness ensuring compliance with applicable laws and regulations and in a  
confidential manner.  
10. Ensures efficient and effective conventional and electronic record-keeping systems are  
in place for the CAO and personnel files and all required data, documents, reports, and  
correspondence are maintained in accordance with legislation and corporate policy.  
11. Performs administrative and clerical support for the Chief Administrative Officer as  
required.  
12. Ensures that the Resort Village property lists are kept current and accurate.  
13. Maintains and schedules meetings for Council and the CAO as required.  
14. Assists the CAO with the development of by-laws, preparations for civic elections and  
any related projects.  
15. Provides administrative and technical support to the Manager of Planning and  
Development related to the processing and tracking of development and building  
permit applications, including stop work orders, and public or in-camera presentations  
to Councils, boards and/or commissions related to the approval and appeal processes  
on behalf of the Resort Village.  
16. Assists with asset management.  
17. Assists as required with the preparation of the annual budget.  
18. Performs other duties as may be assigned from time to time.6  
[10] With respect to #1, #3 and #5, she prepares agendas and attachments that are sent to  
council and released to the public. Over the last couple of months she has started attending  
council in camera sessions. However, when legal, litigation, labour or personnel issues are  
discussed, she is asked to leave the meeting. After a council meeting she prepares a task sheet  
from the minutes and attends the meeting where the managers discuss it. She indicated that she  
does not carry out the duties described in #2, and there has been no discussion of her performing  
those duties. With respect to #4, she indicated this would involve, for example, if council was  
considering a new bylaw on a particular topic, contacting other municipal offices to determine  
what their bylaws say on the issue. She indicated that she does not carry out the duties described  
in #77, and that those duties are performed by the Manager of Finance. Her only involvement in  
6 Exhibit U3.  
7 #7 and #12 are identical.  
6
any of the issues noted in #9 is to post job ads online. With respect to #10, she indicated that for  
new hires she will prepare a file for the CAO that includes an employee’s resume, educational  
certificates and letter of offer. With respect to #14, she has no role respecting elections and she  
is not involved in the development of bylaws. With respect to #15, she indicated that she performs  
strictly clerical tasks such as formatting correspondence and printing notices. She indicated that  
she performs no duties respecting #16 or #17. She has no role in Union bargaining. She indicated  
that she spends 80 to 90% of her time preparing agendas and minutes for council and committee  
meetings. She has had no discussions with anyone in management about taking on more duties.  
She has not performed any duties related to preparing documents for bargaining with the Union  
or preparing the annual budget, but she was not aware whether these events have occurred since  
she started this new role.  
[11] Glenda Trach has been employed by the Employer since November 2020. She started as  
RAA. When the reorganization occurred in November 2021 she was assigned the role of FAA.  
She reports to the Manager of Finance. The job description for FAA sets out the following duties:  
1. Performs accounting functions related to: all general functions; accounts payable; and  
maintains accurate records of requisitions and invoices.  
2. Processes accounts for payment and invoices for services rendered.  
3. Processes approved invoices to accounts payable system.  
4. Reconciliation of accounts payable.  
5. Balances and processes payable reports to ensure prompt payment.  
6. Process requisitions in accordance with approved policies and procedures and  
responds to and investigates accounts payable inquiries.  
7. Maintain various ledgers and balance these ledgers to the General Ledger.  
8. Assists with the preparation of annual audit working papers.  
9. Assists as required with the preparation of the annual financial plan.  
10. Competed all year-end financial requirements using Munisoft modules.  
11. Assists in the organizing and mailing of the annual tax statements.  
12. Prepares journal entries and adjustments as required.  
13. Provides back-up and support to the Manager of Finance as required and acts in the  
capacity of Manager in the absence of the Manager from the workplace.  
7
14. Provides back-up to the Reception Administrative Assistant when required.  
15. Performs other duties as may be assigned from time to time.8  
[12] In this new role she spends 2 to 3 days per week (40-60% of her time) doing payroll duties:  
accepting timecards, having them signed by the supervisor, putting the information from them into  
the system, processing benefits, etc. With respect to #1 to #4, when invoices come in, she makes  
sure proper accounts are noted, and she pays them by cheque. She processes 20 to 50 invoices  
per week. With respect to #5, she prepares the reports referred to for review by the Manager of  
Finance. With respect to #7 she indicated that she does not maintain the ledgers. With respect to  
#8, if the auditors ask to see specific documents, the Finance Manager asks her to find them; she  
does not interact with the auditors. She has no role respecting #9. The duties specified in #10 and  
#12, Trach indicated, are performed by the Manager of Finance. With respect to #11, the Manager  
prints the tax statements; Trach folds them, inserts them in envelopes and mails the envelopes.  
With respect to #13, Trach indicated that most of the Manager’s duties would have to await her  
return. With respect to #14, on the other hand, she can take over all of the RAA’s duties in her  
absence. She has no involvement in the creation of the annual budget, in Union and Employer  
meetings, in strategic planning about finances or labour relations, or in bargaining with the Union.  
The only confidential documents she sees are employees’ personal information she requires to  
do payroll, e.g., social insurance numbers. She works directly with the Manager of Finance if she  
(Trach) is having issues or the manager needs confirmation on something she has done. She has  
no involvement with anything the manager is working on. She has no labour relations training,  
she does not attend council meetings or prepare presentations for council. She has had no  
involvement in preparing the budget, financial plan or audit, but has been told that she potentially  
could be involved in the future. Since she commenced her current role, the Employer has been  
through the budget cycle, but she was not involved.  
[13] The CAO, Brent Lutz, testified on behalf of the Employer. He commenced work as CAO  
for the Employer on January 1, 2022. He indicated that all of the managers are new to their roles,  
as of January 1, 2022, and new to the community, except the Manager of Finance. The Manager  
of Finance has been in that role for less than one year; previously she was the FAA. He noted  
that the Planning and Development Manager position is once again vacant, and the Manager of  
Public Works position will be vacant at the end of this month. The community of Candle Lake is  
challenging to oversee as it has approximately 1100 full time residents, but during the summer  
8 Exhibit U4.  
8
months that grows to approximately 5,000 to 6,000 people. Winter months and shoulder seasons  
can also see an influx of people, depending on the weather.  
[14] He indicated that the season for building the budget is from the end of September until the  
end of March. He also noted that the collective agreement with Local 4838 of the Union for the  
existing bargaining unit will expire at the end of this year, so he expects bargaining to commence  
in the fall. While he indicated that the trigger for work on the audit is the third quarter financial  
statement he then indicated that it actually commences in January. Section 185 of The  
Municipalities Act requires resort villages to complete their audited financial statements by June  
15 in each year. He indicated that in 2022 the auditors asked for over 1000 documents to verify,  
and it was up to the administrative assistants to find them. He indicated that he will require clerical  
support in preparing the financial plan, and to assemble the information he will require to prepare  
for collective bargaining. With respect to the planning and development responsibilities that he is  
now performing, he indicated that he requires clerical support, and that the documents involved  
include confidential competitive information of the businesses involved. Other information he  
works with that requires confidentiality is with respect to legal matters, land purchases and  
developments, and labour relations matters. He indicated that the volume of litigation and legal  
work is more than he expected. All of it involves confidential information. He relies on the  
administrative assistants to provide him with information for this purpose.  
[15] Lutz indicated that council sees this confidential information. Almost every meeting of  
council includes an in camera session for which agendas and information are prepared and  
provided by the PAAA. Over the last four months, unless the information to be discussed during  
the in camera sessions personally impacts her, she has been present during those sessions.  
[16] With respect to the duties in the job descriptions that the administrative assistants  
indicated they are not doing, Lutz had a number of explanations: they are doing the work but just  
did not understand the jargon in the job description; he asked the new managers to do the  
administrative work initially, and transfer it to the administrative assistants when the managers  
thought they could do it; there has not yet been an opportunity to train them to do the work. It is  
his expectation that at some point they will be doing all of the duties described in the job  
descriptions. In his view, all of them will at some point be working with confidential information  
respecting policy, budget, labour relations and strategic planning.  
9
[17] He also referred to applications for disclosure that the Employer receives pursuant to The  
Local Authority Freedom of Information and Protection of Privacy Act. He indicated that requests  
for information can be quite complicated, requiring hundreds of documents to be released and  
thousands of documents to be reviewed. The role of the administrative assistants is to look for  
documents that may be relevant to the requests; the managers then review the documents to  
determine what will be released. Kalynowski’s evidence was that the office has not received any  
applications recently. Both Watt and Kalynowski indicated that their role was just to receive the  
applications and the fees.  
[18] On cross-examination Lutz confirmed that none of the administrative assistants have a  
role in labour relations between the Employer and the current bargaining unit. He admitted that  
The Municipalities Act requires considerably more transparency than a private sector employer  
would be subject to. He indicated that the confidential information that the administrative  
assistants might see would relate to zoning, bids and competitive information from vendors.  
Argument on behalf of Union:  
[19] The Union acknowledges that on an application for certification the Union bears the legal  
onus, on a balance of probabilities, of showing that the proposed bargaining unit is appropriate.  
The Employer, however, bears the evidentiary burden of presenting evidence to support any  
proposed exclusions:  
This Board concurs with the Board’s analysis in Wheatland Regional Centre. It is important  
to clarify the difference between the burden of proof and the onus. It cannot be denied, as  
asserted by Amenity, that the Union bears the legal burden of proof to establish on a  
balance of probabilities the proposed unit is an appropriate one for collective bargaining  
purposes. However, if an employer contests the composition of a proposed unit on the  
basis for example, that some individuals function as managers or, as in this case, qualify  
as supervisory employees, then the evidential burden or onus, as opposed to the legal  
burden of proof, shifts to the employer to present evidence supporting its argument for  
exclusion. Notwithstanding this shift in the evidentiary onus, the over-arching burden of  
proof in a certification application remains upon the union.9  
[20] The evidence must be sufficiently clear, convincing and cogent.10 The exclusions must be  
made on as narrow a basis as possible.11  
9 Workers United Canada Council v Amenity Health Care LP, 2018 8572 (SK LRB) at para 59.  
10 United Food and Commercial Workers, Local 1400 v Calokay Holdings Ltd., 2016 74282 (SK LRB).  
11 Saskatchewan Institute of Applied Science and Technology v Saskatchewan Government and General Employees’  
Union, 2009 72366 (SK LRB); Early Childhood Intervention Program, Regina Region Inc v Government and  
General Employees’ Union, 2013 53367 (SK LRB).  
10  
[21] Clause 6-1(1)(h) of The Saskatchewan Employment Act [“Act”] defines “employee”. Under  
section 6-4 of the Act “employees” have a right “to organize in and to form, join or assist unions  
and to engage in collective bargaining through a union of their own choosing”. The definition of  
employee is key to a determination of this matter. The Union argues that the Employer has not  
met its evidentiary burden of showing that the administrative assistants have primary duties of a  
confidential nature in relation to labour relations, business strategic planning, policy advice or  
budget implementation or planning.  
[22] The Union argues that much of the evidence related to the extent of the access the  
administrative assistants have to confidential labour relations or budgeting information. The Board  
has held that mere access is not sufficient:  
The Board has also had the opportunity, on a number of occasions, to consider whether  
an individual should be excluded from a bargaining unit on the basis of s. 2(f)(i)(B), that is,  
whether the individual “regularly act[s] in a confidential capacity with respect to the  
industrial relations of his or her employer.” Such confidential information must relate to the  
industrial relations of the employer and does not include mere access to such information  
(see for example, E.C.C. International Inc., supra, at 275). As with managerial exclusions,  
these exclusions are made “on as narrow a basis as possible” and “it is not sufficient that  
someone who would otherwise fall within the definition of employee perform incidentally or  
occasionally tasks which are of a . . . confidential nature” (see Government of  
Saskatchewan, supra at 547).12  
[23] In order for any of the administrative assistant positions to be excluded based on their  
confidential duties, first, it is necessary to show that their primary duties include activities that are  
confidential in relation to labour relations, business strategic planning, policy advice or budget  
implementation or planning. Second, the confidential duties must have a direct impact on the  
bargaining unit in question.13  
[24] In Saskatchewan Mutual Insurance Company v United Steel14 [“SMI”], the Board noted  
that while the Board has shown a historical tendency to allow for a single out-of-scope clerical  
position where the employer demonstrates a need for labour relations and confidential assistance,  
the exclusion is not a foregone conclusion. The onus continues to rest with the Employer to  
demonstrate that the proposed exclusion is legitimate in the context of this specific workplace.  
The Union argues that the Employer has not met its onus of showing that any of the administrative  
12 University of Saskatchewan v Administrative and Supervisory Personnel Association, 2007 68769 (SK LRB)  
at para 42.  
13 Health Sciences Association of Saskatchewan v Unifor, Local 609, 2015 43776 (SK LRB).  
14 2020 76678 (SK LRB).  
11  
assistants are tasked with duties that meet the test. Their work has no direct impact on the existing  
bargaining unit or the proposed bargaining unit.  
[25] Specifically, there was no evidence that the RAA is engaged in any confidential capacity  
duties. The FAA has access to basic payroll information and financial invoices; she is not  
engaging in any financial research with respect to business strategy or budget implementation.  
There is no evidence that she is engaging in or ever will engage in labour cost data reports for  
the purpose of collective bargaining. She is not a party to any labour relations or strategic planning  
information that would compromise the Employer’s relationship with the Union.  
[26] The PAAA’s work has no direct impact on the existing or proposed bargaining units. She  
prepares the agenda and materials for council meetings and minutes of those meetings. The  
agendas and minutes are all publicly accessible on the Employer’s website. The annual audited  
financial reports and annual budgets are also publicly accessible, as required by The  
Municipalities Act. The balance of her time is spent processing building permits and  
corresponding with the third-party permit approval body. She is not present in discipline meetings  
or in camera grievance discussions. She has no access to legal files, discipline files or confidential  
labour relations documents. Her job description has been sprinkled with vague duties relating to  
human resources, nondescript confidential responsibilities and labour relations adjacent tasks  
that are not primary or even secondary aspects of her position. While she may have access to  
confidential information, it is not confidential information that directly impacts labour relations. The  
Union also disputes the Employer’s argument that there are crucial labour relations duties that fall  
within the scope of her position that she has yet to be involved in. The Union argues that if the  
Employer seriously intended to involve her in confidential labour relations or strategic planning  
meetings, it would have started integrating her into that process by now.  
[27] The Union also disputes the Employer’s reliance on any involvement of the administrative  
assistants in the preparation of the annual budget and the financial audit documents, as these are  
also publicly accessible via the Employer’s website.  
[28] Ultimately, a level of transparency and disclosure required of municipalities by The  
Municipalities Act distinguishes municipal employers from private sector employers:  
117(1) Any person is entitled at any time during regular business hours to inspect and  
obtain copies of:  
12  
(a) any contract approved by the council, any bylaw or resolution and any account  
paid by the council relating to the municipality;  
(b) the statements maintained by the administrator in accordance with section 142  
and the debentures register;  
(b.01) the official oaths or affirmations taken by members of council pursuant to  
section 94;  
(b.1) the municipality’s financial statements prepared in accordance with section  
185 and auditor’s report prepared in accordance with subsection 189(1);  
(b.2) the financial statements of any controlled corporation prepared in accordance  
with section 187 and an auditor’s report prepared in accordance with subsection  
189(1);  
(c) any report of any consultant engaged by or of any employee of the municipality,  
or of any committee or other body established by a council, after the report has  
been submitted to the council, except any opinion or report of a lawyer;  
(d) the minutes of the council after they have been approved by the council; and  
(e) any other prescribed report or document.  
[29] In this context, the Union argues, there are very few strategic, budgetary, contractual or  
labour relations decisions that the public is not entitled to access. The Employer’s claims of  
confidential duties are minimal, and in many instances speculative, to the extent that they cannot  
support interference with these employees’ constitutional right to engage in collective bargaining  
through the Union.  
[30] Turning then to the appropriateness of the proposed bargaining unit, the Union relied on  
the four principles summarized by the Board in North Battleford Community Safety Officers Police  
Association v City of North Battleford15 [“North Battleford CSO”]:  
[55] First, the Board should scrutinize the bargaining unit that has been proposed by the  
union in question from the perspective of whether it is appropriate for purposes of future  
collective bargaining with an employer. The central question is whether it is an appropriate  
unit, not the optimal one. In Canadian Union of Public Employees v Northern Lakes School  
Division No. 6422 [Northern Lakes School Division], the Board framed this inquiry as  
follows:  
The basic question which arises for determination in this context is, in our view,  
the issue of whether an appropriate bargaining unit would be created if the  
application of the Union were to be granted. As we have often pointed out, this  
issue must be distinguished from the question of what would be distinguished from  
the question of what would be [sic] the most appropriate bargaining unit.  
The Board has always been reluctant to deny groups of employees access to  
collective bargaining on the grounds that there are bargaining units which might  
15 2017 68783 (SK LRB).  
13  
be created, other than the one which is proposed, which would be more ideal from  
the point of view of collective bargaining policy. The Board has generally been  
more interested in assessing whether the bargaining unit which is proposed stands  
a good chance of forming a sound basis for a collective bargaining relationship  
than in speculating about what might be an ideal configuration.  
[56] Second, generally speaking the Board’s preference is for larger, broadly based units  
so as to avoid issues of certifying an under-inclusive unit. In Saskatchewan Joint Board,  
Retail, Wholesale and Department Store Union v O.K. Economy Stores (A Division of  
Westfair Foods Ltd.) 24 [O.K. Economy] a case cited by both the Applicant and the City,  
former Vice-Chairperson Hobbs explained this preference as follows at page 66:  
In Saskatchewan, the Board has frequently expressed a preference for larger and  
few bargaining units as a matter of general policy because they tend to promote  
administrative efficiency and convenience in bargaining, enhance lateral mobility  
among employees, facilitate common terms and conditions of employment,  
eliminate jurisdictional disputes between bargaining units and promote industrial  
stability by reducing incidences of work stoppages at any place of work (see  
[United Steel Workers of America v Industrial Welding (1975) Limited, 1986 Feb.  
Sask. Labour Rep. 45]). . . .  
This does not mean that large is synonymous with appropriate. Whenever the  
appropriateness of a unit is in issue, whether large or small, the Board must  
examine a number of factors assigning weight to each as circumstances arise.  
[57] Third, this Board has identified, and regularly applied, a number of relevant factors, of  
which size of the proposed unit is but one, to determine whether the proposed unit is an  
appropriate unit for purposes of bargaining collectively with the employer. Those factors  
were helpfully enumerated in O.K. Economy as follows, again at page 66:  
Those factors include among others: whether the proposed unit of employees will  
be able to carry on a viable collective bargaining relationship with the employer;  
the community of interest shared by the employees in the proposed unit;  
organizational difficulties in particular industries; the promotion of industrial  
stability; the wishes or agreement of the parties; the organizational structure of the  
employer and the effect that the proposed unit will have upon the employer’s  
operations; and the historical patterns of organization in the industry.  
The Board recognizes that there may be a number of different units of employees  
which are appropriate for collective bargaining in any particular industry.  
[58] Fourth, units that may be characterized as “under-inclusive” may be certified as  
appropriate in certain circumstances. The leading case on this issue appears to be Graphic  
Communications International Union, Local 75M v Sterling Newspapers Group, a Division  
of Hollinger Inc. [Sterling Newspapers Co.]. In this decision, former Chairperson Gray on  
behalf of the majority of the Board (Member Carr dissenting), reviewed the Board’s prior  
jurisprudence on under-inclusive units, including authorities cited by counsel in this matter  
such as Canadian Union of Public Employees, Local 1902-08 v Young Women’s Christian  
Association et al., and Saskatchewan Joint Board, Retail, Wholesale and Department Store  
Union v Saskatchewan Centre of the Arts. She summarized her analysis as follows at para.  
34:  
From this review of cases, it would appear to the Board that under-inclusive  
bargaining units will not be considered to be appropriate in the following  
circumstances: (1) there is no discrete skill or other boundary surrounding the unit  
that easily separates it from other employees; (2) there is intermingling between  
14  
the proposed unit and other employees; (3) there is a lack of bargaining strength  
in the proposed unit; (4) there is a realistic ability on the part of the Union to  
organize a more inclusive unit; or (5) there exist a more inclusive choice of  
bargaining units.  
[31] The Union argues that the administrative assistants share a community of interest. They  
are the only clerical staff in the Employer’s operations and frequently work together. They share  
the same basic job title and the primary duties in each role are clerical in nature.  
[32] With respect to intermingling, there is no evidence of any intermingling between the  
administrative assistants and the members of the existing bargaining unit. They do not work side  
by side; there is no collaboration or direction provided. This is a common distinction in the  
municipal sector, often referred to as “inside” and “outside” workers. It is not unprecedented, in  
larger municipalities, for inside workers and outside workers to have separate bargaining units.  
[33] The Union acknowledges that this is a small unit, but small size is not immediately  
disqualifying. The fact that a bargaining unit of outside workers already exists should not preclude  
these employees from accessing their constitutional right. The right of employees excluded from  
a bargaining unit, to organize into a separate bargaining unit was acknowledged in passing in  
Service Workers International Union, Local 299 v Canadian Blood Services16, a decision that  
dismissed an application for amendment of an existing bargaining unit:  
The Union commented that, if the Board requires a change in circumstances, it would be  
more difficult for the incumbent to join an existing bargaining unit than to apply to be  
certified in a different bargaining unit. While we cannot comment on the ease with which  
the incumbent could exercise his rights under s. 3 of the Act to join a trade union of his  
choosing, given the requirement that any unit applied for must still be an “appropriate unit,”  
that option is available to him, as it is for the incumbents in the other excluded positions  
who are still “employees” within the meaning of the Act. In this regard, we note that there  
is another certification Order in this workplace involving a bargaining unit of nurses  
represented by the Saskatchewan Union of Nurses.  
[34] With respect to viability, the Union argues that the Board should not presume the proposed  
bargaining unit will fail based on its relatively small size. Any concerns about the viability of the  
proposed bargaining unit are speculative and must not override the employees’ right to access  
collective bargaining.  
[35] The current Certification Order did not determine that the administrative assistants are not  
employees within the meaning of the Act. It merely determined that they were not included in that  
16 2007 68757 (SK LRB) at para 31.  
15  
bargaining unit. The existing Certification Order and collective agreement do not and will not apply  
to them.  
Argument on behalf of the Employer:  
[36] The Employer argues that the Board lacks jurisdiction to hear this application, based on  
section 6-45 of the Act. Since there is a collective agreement between the parties, this dispute  
can only be resolved through arbitration.17 The collective agreement is binding on the Union, by  
virtue of Article 5.2 of the Union’s Constitution18, because Local 4838 entered into the Agreement.  
The administrative assistants are also bound by the collective agreement, because they are  
named in it. Section 6-41 of the Act provides that a collective agreement is binding on every  
employee of an employer who is affected by it. They are affected by the collective agreement  
because it refers to their positions and expressly excludes them from its benefits and obligations.  
The Employer suggests that this matter is a disguised attempt by the Union to get around the  
protection of the Certification Order and collective agreement. The administrative assistant  
position is not a new job position; it has been an existing job position since at least the date the  
existing Certification Order was granted in 2007.  
[37] The Employer relies for this submission on ExxonMobil Canada Properties v Hebron  
Project Employers’ Association19 [“ExxonMobil”]:  
[99] I prefer the approach of the applications judge when he stated that ExxonMobil’s rights  
are subordinated to the labour relations regime set up by the SPO [Special Project Order]  
and that ExxonMobil will necessarily be “affected by outcomes” flowing from the collective  
agreement that is legitimated by the SPO. ExxonMobil need only be regarded as being  
“bound” by the arbitrator’s ruling in the same way as a citizen is bound by the general law  
and the precedents emanating from the courts. Even if ExxonMobil may not be subject to  
the law of contempt for failure to abide by a specific arbitrator’s order, it will be subject to  
an obligation to refrain from interfering with the rights of workers which have been  
determined and declared as part of the operation of the SPO regime and to which all  
persons, including ExxonMobil, participating in or receiving the benefits of the activities  
contemplated by the regime are subject. Thus, if it acts in a manner that undermines,  
frustrates or derogates from rights so created, it will be subject to such other civil obligations  
and penalties, such as the tort of inducing breach of contract, that protect the rights created.  
[100] Indeed, even with respect to the one occasion when the arbitrator referred to  
ExxonMobil being “bound” he did not say that ExxonMobil was bound “by the award”;  
instead he said it was bound “by the outcome of the award.” That phraseology can also  
17 Northern Regional Health Authority v Horrocks, 2021 SCC 42 (); Yashcheshen v Law School Admission  
Council Inc., 2021 SKCA 149 ().  
18 Exhibit E1.  
19 2017 NLCA 28 ().  
16  
be interpreted in a manner consistent with the characterization of the effect of the award  
described by the applications judge. [emphasis added by NLCA]  
[38] This, the Employer argues, means that even though ExxonMobil was not a party to the  
collective agreement, it was nevertheless affected by the agreement, in a comparable manner to  
the way in which the administrative assistants are affected by the collective agreement in this  
matter.  
[39] Further, the Employer submits that if the Legislature had intended for only members of the  
Union to be bound by the collective agreement, it would not have used the expansive wording  
“every employee of an employer . . . who is included in or affected by it”. The Employer argues  
that this interpretation of section 6-41 is bolstered by comparison to subsection 6-38(2) of the Act,  
which refers to “All members of the union who are in the bargaining unit affected by the collective  
agreement”.  
[40] The Employer argues that implicit in this application is a request for this designation to  
supersede the existing Certification Order and/or to supersede the scope provision in the existing  
collective agreement. The Employer argues that the Board does not have jurisdiction to order the  
substitution of a new scope clause into either the existing Certification Order or collective  
agreement.20 The current collective agreement provides that the administrative assistant positions  
continue to be appropriately of an out-of-scope character and therefore properly outside of the  
bargaining unit. The Union and Employer have bargained the out-of-scope nature of the  
administrative assistant positions, and the Union has received value for that collective bargaining  
result.  
[41] Next the Employer argues that the administrative assistants are not employees within the  
meaning of the Act, and therefore do not have a right to make an application pursuant to section  
6-9 of the Act. They argue that the Board must look beyond the job title and job description and  
consider the evidence, including whether the duties assigned are genuine and necessary.21 The  
Employer argues that the responsibilities, duties, job specifications and requirements of the  
administrative assistant job descriptions are of a managerial character and/or include activities of  
a confidential nature in relation to labour relations, business strategic planning, policy advice and  
budget implementation and planning.  
20 Kindersley & District Co-operative Ltd v RWDSU (1998) CarswellSask 787 (SKCA).  
21 SMI, supra note 14.  
17  
[42] The Employer argues that the Board determined in City of Regina v Regina Civic Middle  
Management Association22 that municipal employers are entitled to have excluded clerical staff,  
to handle the clerical/administrative side of collective bargaining.  
[43] The Employer also relied on International Union, United Automobile, Aerospace and  
Agricultural Implement Workers of America v Sternson Limited23 to argue that viewing and working  
with confidential budget proposals, salary offers and discipline matters or typing documents  
related to such matters justifies exclusion. Assistants who prepare budget plans that involve  
confidential information are appropriately excluded from the bargaining unit.24  
[44] The Employer argues that the administrative assistants perform duties of a managerial  
character. Their duties are of a managerial character because they are essential to the exercise  
of management functions. The duties that the Employer argues satisfy this test are described as  
follows:  
Planning / Administration Administrative Assistant:  
i.  
ii.  
attends meetings that are of a confidential or managerial nature.  
creates, and maintains confidential in camera, employment, commercial and legal  
files.  
iii.  
prepares agendas involving business strategic planning, policy advice and budget  
implementation.  
iv.  
v.  
receives and reviews incoming mail of a confidential and/or managerial nature.  
assists the CAO and in doing so performs human resources functions of a  
confidential and managerial nature.  
vi.  
assists with the annual budget which includes highly confidential information  
regarding salary of Employer personnel.  
vii.  
is primarily involved with the clerical and administrative side of collective  
bargaining, including discipline matters, salary offers, costing collective bargaining  
proposals and reviewing existing programs and making recommendations about  
their continuation in the context of budget planning.  
Finance Administrative Assistant:  
i.  
primary duties include involvement in information in the ledgers, accounts payable,  
and requisitions that are of a confidential nature, or of managerial character.  
assists the Manager of Finance and also assists with the annual financial plan,  
both of which require business strategic planning, or budget implementation.  
ii.  
22 2018 127659 (SK LRB).  
23 1984 982 (ON LRB).  
24 Saskatoon Public Library Board (Saskatoon Public Library) v Canadian Union of Public Employees, 2019  
128791 (SK LRB).  
18  
iii.  
is primarily involved with the clerical and administrative side of collective  
bargaining, including discipline matters, salary offers, costing collective bargaining  
proposals and reviewing existing programs and making recommendations about  
their continuation in the context of budget planning.  
Reception Administrative Assistant:  
i.  
has frequently acted as the back up FAA, a position that involves dealing with  
confidential information and managerial responsibilities.  
ii.  
assists with the annual audit, and preparation of annual financial plan, which  
involves dealing with confidential information, business strategic planning and  
budget implementation.  
iii.  
iv.  
reports to the Manager of Finance on matters involving confidential information  
and budget implementation.  
is primarily involved with the clerical and administrative side of collective  
bargaining, including discipline matters, salary offers, costing collective bargaining  
proposals and reviewing existing programs and making recommendations about  
their continuation in the context of budget planning.25  
[45] As a result, the Employer argues, the primary responsibilities, job specifications,  
requirements and actual performance of duties of the administrative assistant positions are of a  
managerial character and/or include activities of a confidential nature in relation to labour  
relations, business strategic planning, policy advice and budget implementation and planning, all  
of which have a direct impact on the bargaining unit. These job duties are not merely incidental  
and are genuinely required for the proper functioning of the Employer.  
[46] With respect to whether the administrative assistants perform duties of a confidential  
nature the Employer points to a number of factors. With respect to the PAAA, the CAO requires  
support in his functions, which include all of the enumerated factors. The current Manager of  
Finance was previously the FAA. The FAA has significant responsibilities and duties not all of  
which she has carried out yet. In her triage function, the RAA directs the public’s concerns and is  
responsible for the intake of money. She could be the Acting Manager of Finance, in the absence  
of the Manager of Finance and FAA.  
[47] Next the Employer argues that section 6-9 does not apply to the administrative assistants  
because a Certification Order has already been issued in this workplace. The Certification Order  
expressly resolves issues of scope respecting the administrative assistants. The Union cannot  
25 Brief of Law on Behalf of the Respondent, The Resort Village of Candle Lake, paras 55 to 57.  
19  
challenge that determination over 14 years after it was made. It was required to make that  
application by May 7, 2008.  
[48] Finally, the Employer argues that the Union has not satisfied its onus of establishing that  
the proposed unit would be an appropriate unit for collective bargaining. There is no discrete skill  
or other boundary surrounding the unit that easily separates it from other employees. There is  
intermingling between the proposed unit and other employees. There is a lack of bargaining  
strength in the proposed unit. There is a realistic ability on the part of the Union to organize a  
more inclusive unit. There exists a more inclusive choice of bargaining units. Two bargaining units  
in a workplace of 14 people would not be appropriate. The Employer is already challenged in  
dealing with labour relations issues. The proposed bargaining unit would be unreasonable,  
unworkable, impractical and untenable.  
Relevant Statutory Provisions:  
[49] The parties referred to the following provisions as relevant in this matter:  
6
1(1) In this Part:  
. . .  
(h) “employee” means:  
(i) a person employed by an employer other than:  
(A) a person whose primary responsibility is to exercise authority and  
perform functions that are of a managerial character; or  
(B) a person whose primary duties include activities that are of a  
confidential nature in relation to any of the following and that have a  
direct impact on the bargaining unit the person would be included in as  
an employee but for this paragraph:  
(I) labour relations;  
(II) business strategic planning;  
(III) policy advice;  
(IV) budget implementation or planning;  
(ii)  
a person engaged by another person to perform services if, in the  
opinion of the board, the relationship between those persons is such that the  
terms of the contract between them can be the subject of collective bargaining;  
and  
(iii)  
any person designated by the board as an employee for the purposes of  
this Part notwithstanding that, for the purpose of determining whether or not the  
person to whom he or she provides services is vicariously liable for his or her  
acts or omissions, he or she may be held to be an independent contractor;  
and includes:  
(iv) a person on strike or locked out in a current labour-management  
dispute who has not secured permanent employment elsewhere; and  
(v) a person dismissed from his or her employment whose dismissal is the  
subject of any proceedings before the board or subject to grievance or  
arbitration in accordance with Subdivision 3 of Division 9.  
6-4(1) Employees have the right to organize in and to form, join or assist unions and to  
20  
engage in collective bargaining through a union of their own choosing.  
69(1) A union may, at any time, apply to the board to be certified as bargaining agent for  
a unit of employees appropriate for collective bargaining if a certification order has not been  
issued for all or a portion of that unit.  
641(1) A collective agreement is binding on:  
(a) a union that:  
(i) has entered into it; or  
(ii) becomes subject to it in accordance with this Part;  
(b) every employee of an employer mentioned in clause (c) who is included in or  
affected by it; and  
(c) an employer who has entered into it.  
(2) A person bound by a collective agreement, whether entered into before or after the  
coming into force of this Part, must, in accordance with the provisions of the collective  
agreement:  
(a) do everything the person is required to do; and  
(b) refrain from doing anything the person is required to refrain from doing.  
645(1) Subject to subsections (2) and (3), all disputes between the parties to a collective  
agreement or persons bound by the collective agreement or on whose behalf the collective  
agreement was entered into respecting its meaning, application or alleged contravention,  
including a question as to whether a matter is arbitrable, are to be settled by arbitration after  
exhausting any grievance procedure established by the collective agreement.  
6104(2) In addition to any other powers given to the board pursuant to this Part, the board  
may make orders:  
. . .  
(i) subject to section 6-105, determining for the purposes of this Part whether any  
person is or may become an employee or a supervisory employee as defined in  
clause 6-1(1)(o) of this Act as that clause read before the coming into force of The  
Saskatchewan Employment Amendment Act, 2021.  
6105(1) On an application made for the purposes of clause 6-104(2)(i), the board may  
make a provisional determination before the person who is the subject of the application  
actually performs the duties of the position in question.  
(2) A provisional determination made pursuant to subsection (1) becomes a final  
determination one year after the day on which the provisional determination is made  
unless, before that period expires, the employer or the union applies to the board for a  
variation of the determination.  
Analysis and Decision:  
Background:  
[50] The application before the Board in this matter is an application for bargaining rights by  
three administrative assistants employed by the Employer. Unless the Board finds that they are  
not employees within the meaning of Part VI of the Act, they had three choices for how to proceed  
to exercise their statutory and constitutional right to engage in collective bargaining with their  
Employer:  
21  
Agree to have the Union apply to the Board for an Order amending the current Certification  
Order between the Union and the Employer, to add them to the existing bargaining unit.  
Ask the Union, when it enters into collective bargaining with the Employer for a new  
collective agreement to replace the agreement that is set to expire at the end of 2022, to  
include a request that the scope clause be amended to add them to the bargaining unit.  
Agree to have the Union apply to the Board for a Certification Order for a separate  
bargaining unit consisting of their three positions.  
[51] The advice they received indicated that it might be difficult to meet the test set out in the  
Act to choose the first option. Since the application to exercise that option was withdrawn, no  
determination was made by the Board respecting whether the test was or was not met. Filing then  
withdrawing that application has no effect on their ability to choose one of the other options  
available to them. There was no requirement on them to agree to the second option. They were  
entitled to and did choose the third option. It might have been more convenient for the Employer,  
and possibly also the Union, for them to have chosen one of the other options. That is not a  
criterion that the Board takes into consideration in making this decision.  
[52] Section 6-4 of the Act recognizes that all employees “have the right to organize in and to  
form, join or assist unions and to engage in collective bargaining through a union of their own  
choosing”. As the Board noted in Workers United Canada Council v Amenity Health Care LP26  
[“Amenity Health Care”]: “(t)his statutory statement of public policy is reinforced by the  
constitutional guarantee of freedom of association found in section 2(d) of the Canadian Charter  
of Rights and Freedoms27. The Board is to be guided by these statements in determining the  
questions at issue in this matter.  
[53] Normally on an application for bargaining rights, the first issue considered by the Board is  
the appropriateness of the proposed bargaining unit. Then, if the Board finds the proposed  
bargaining unit is appropriate, it turns to the question of whether any proposed members of that  
bargaining unit should be excluded because they are not employees within the meaning of Part  
VI of the Act. In this matter the Employer argues that none of the proposed members of the  
proposed bargaining unit are employees within the meaning of Part VI of the Act. Therefore, in  
this matter, the Board will first consider whether any of the administrative assistant positions meet  
the definition of “employee” in clause 6-1(1)(h) of the Act.  
26 Supra note 9.  
27 At para 85.  
22  
23  
Onus of Proof:  
[54] The parties agree that while the Union bears the legal burden of proof to establish on a  
balance of probabilities that the proposed bargaining unit is appropriate for collective bargaining,  
the evidentiary burden falls on the Employer to present evidence supporting its argument for  
exclusion of all of the administrative assistants.28 The onus is on the Employer to satisfy the Board  
that these positions should be excluded from the bargaining unit. In meeting their burdens of  
proof, both parties must provide evidence that is sufficiently clear, convincing and cogent.  
Managerial Exclusion:  
[55] The Employer suggests that the administrative assistant positions should be excluded  
from the bargaining unit on the basis of paragraph 6-1(1)(h)(i)(A), that is, that their “primary  
responsibility is to exercise authority and perform functions that are of a managerial character”.  
To meet this criterion, the Board has held that it will consider factors such as:  
Authority to fundamentally affect the economic lives of other employees, for example by  
hiring, firing, promoting, demoting or disciplining employees;  
Direct control or influence on the terms and conditions under which other employees work,  
to an extent that would create a conflict of interest inimical to healthy collective bargaining;  
Significant degree of decision-making authority in relation to matters that affect the terms,  
conditions or tenure of employment of other employees;  
Power to discipline and discharge, the ability to influence labour relations, the power to  
hire, promote and demote;  
Authority to exercise independent discretion to significantly affect the terms and conditions  
of other employees.29  
[56] No evidence was led that any of the administrative assistant positions have any of these  
powers. The Employer argues that their duties are of a managerial character because they are  
essential to the exercise of management functions. That is not the test. The duties listed at  
paragraph [44] are not managerial duties and, for the most part, are not performed by the  
administrative assistants.  
28 Amenity Health Care, supra note 9, at para 59.  
29 University of Saskatchewan v Administrative and Supervisory Personnel Association, supra note 12 at paras 35 to  
41.  
24  
[57] Saskatoon Public Library Board (Saskatoon Public Library) v Canadian Union of Public  
Employees30 is a recent decision of the Board that thoroughly canvassed the issue of managerial  
and confidential exclusions. It relied on the summary of relevant principles to be applied in  
assessing a request for a managerial exclusion, as set out by the Board in Canadian Union of  
Public Employees, Local 4777 v Prince Albert Parkland Regional Health Authority31:  
The Board considered and dealt with all of the cited cases in University of Saskatchewan,  
supra. That case set forth the following principles to be considered:  
1. The determination of whether a position falls to be excluded is primarily a factual  
one.  
2. Exclusions on the basis of managerial responsibility should be made on as  
narrow a basis as possible.  
3. A person to be excluded must have a significant degree of decisionmaking  
authority in relation to matters which affect the terms, conditions or tenure of  
employment of other employees. A high degree of independence to make  
decisions of a purely professional nature is not sufficient.  
4. The job functions which the Board considers central to the finding of managerial  
status includes the power to discipline and discharge, the ability to influence labour  
relations, and to a lesser extent, the power to hire, promote and demote. Other job  
functions, such as directing the workforce, training staff, assigning work, approving  
leaves, scheduling of work, and the like are more indicative of supervisory  
functions, which do not, in themselves, give rise to conflicts which would  
undermine the relationship between management and union by placing a person  
too closely identified with management in a bargaining unit.  
5. In assessing managerial authority, the Board considers the actual authority  
assigned to a position and the use of that authority in the workplace.  
6. The authority bestowed on a managerial employee must also be an effective  
authority; it is not sufficient if the person can make recommendations, but has no  
further input into the decision-making process.  
[58] In applying those principles, the Board stated:  
[66] Prince Albert Parkland set out the principles to be applied. The determination requires  
a careful consideration of the specific facts in each case. The exclusion of positions from  
the bargaining unit should be made on as narrow a basis as possible. Requiring particular  
consideration here are the following questions:  
- Will these positions have a significant degree of decision-making authority in relation to  
matters that affect the terms, conditions or tenure of employment of other employees?  
- Will these positions have the ability to influence labour relations?  
30 Supra note 24.  
31 2009 38609 (SK LRB) at para 66.  
25  
- What authority is assigned to these positions? Is it an effective authority? It is not sufficient  
if the person can make recommendations, but has no further input into the decision-making  
process.  
[59] The administrative assistants have no decision-making authority in relation to matters that  
affect the terms, conditions or tenure of employment of other employees; they have no ability to  
influence labour relations; they have no managerial authority. The assertion that they will work  
with management is not sufficient. The Act requires that their primary responsibility must be to  
exercise authority and perform functions of a managerial character. The Board was provided with  
no evidence that the administrative assistants perform any functions of a managerial character.  
They are important sources of information, and their expertise and knowledge is a valued  
commodity, but they do not have any managerial responsibilities or authority.  
[60] The Board finds that the Employer has not provided sufficiently clear, convincing and  
cogent evidence that any of the administrative assistants should be excluded from the bargaining  
unit on the basis of the managerial exclusion.  
Confidentiality Exclusion:  
[61] The next issue for the Board to determine is whether any of the administrative assistant  
positions should be excluded from the proposed bargaining unit on the basis of paragraph 6-  
1(1)(h)(i)(B), the confidentiality exclusion. This provision requires both that the primary duties of  
a position include activities that are confidential in relation to labour relations, business strategic  
planning, policy advice or budget implementation or planning and that these confidential duties  
have a direct impact on the bargaining unit.  
[62] In SMI the Board granted an application by an employer to amend a Certification Order to  
exclude an executive assistant from the bargaining unit. In determining that the position should  
be excluded on the basis of the confidentiality exclusion, the Board stated:  
[54] In Saskatoon Public Library, the Board provided helpful guidance for assessing the  
confidentiality exclusion:  
[70] In considering the confidentiality exclusion, the Board has an obligation to  
balance a number of important competing rights: the rights of individual employees  
to not be unnecessarily denied access to collective bargaining; the right of the  
Union to not have its collective strength weakened by an unnecessary reduction  
of the bargaining unit; and the right of the Employer to make rational and informed  
decisions regarding labour relations, business strategic planning, policy and  
budget implementation and planning, in an atmosphere of candour and  
confidence.  
26  
[55] It is a purpose of the confidentiality exclusion to ensure that the Employer has sufficient  
internal resources to permit it to make rational and informed decisions with respect to  
labour relations and collective bargaining, and to permit it to do so in an atmosphere of  
candour and confidence. The Board must consider whether the duties would create an  
insoluble conflict between the responsibilities which that person owes to the Employer and  
the interests of that person and his/her colleagues in the bargaining unit. Due to the  
potential to deny an individual access to the benefits of collective bargaining and to erode  
the bargaining unit, such exclusions are made on as narrow a basis as possible.  
[56] The Employer relied on a series of cases, decided pursuant to the previous legislation,  
that support the exclusion of a single position providing clerical and administrative support  
of a confidential nature. Throughout these cases, the Board recognized that an employer  
who is obligated to engage in a collective bargaining relationship will likely require some  
administrative or clerical support.  
[63] The Board would pause here to note that the definition of employee with respect to  
exclusions on the basis of confidential duties is significantly different in the Act than it was in The  
Trade Union Act. In paragraph 2(f)(i)(B) of The Trade Union Act, the exclusion was described as  
follows: “a person who is regularly acting in a confidential capacity with respect to the industrial  
relations of his or her employer”. Therefore, caution must be exercised in applying decisions made  
by the Board on this issue prior to the implementation of the Act.  
[64] The Board in SMI then reviewed a series of decisions made prior to the enactment of the  
Act, and therefore prior to the enactment of the new description of the confidentiality exclusion.  
With respect to the changes, the Board noted:  
[65] The current legislation excludes from the definition of employee a person whose  
primary duties include activities that are of a confidential nature in relation to any of the  
four listed categories and that have a direct impact on the bargaining unit the person would  
be included in as an employee. The question before the Board is whether the position’s  
primary duties include the activities as described. The Employer’s evidence focuses on  
activities that are of a confidential nature in relation to one of the listed categories, labour  
relations. It also touches on activities that are of a confidential nature in relation to business  
strategic planning, policy advice, and budget planning.  
. . .  
[67] The Board must look beyond the job title and the job description and consider the  
evidence, including whether the duties assigned to the position are genuine and necessary.  
As for whether the Employer “sprinkled” the proposed new position with confidential duties  
for the purpose of obtaining an exclusion, there is evidence of that here, as there was in  
Saskatoon Public Library. For example, the Board is not persuaded that the EA will be  
preparing labour cost data for purposes of collective bargaining, performing research for  
discipline and grievance matters, performing research for strategic planning, or providing  
opinions or advice. The Board will consider the request for an exclusion without regard for  
these duties.  
[68] First, the Board is satisfied that the duties of the EA position are intended to rectify  
legitimate operational deficits within the Employer’s structure. The Board is persuaded that  
27  
the Employer’s operations, in particular at the Executive level, have been impeded in the  
absence of this role.  
[65] The final question considered by the Board in SMI is set out as follows:  
[71] The remaining question is whether these activities will have a direct impact on the  
bargaining unit the person would be included in as an employee. In our view, the  
requirement for a “direct impact” does not necessarily foreclose the exclusion of an  
administrative position from the bargaining unit. Each case must be decided on the facts.  
Here, the EA’s significant integration with the role of the President, the Executive team,  
and the Board, is sufficient to establish a direct impact. The EA will be an important and  
central resource to ensure that the President and the Executive team are performing their  
duties in an effective and efficient manner.  
[72] The EA job description states that,  
The Executive Assistant learns the role of the President and of others in the  
Executive Management Team in order to help them complete their tasks effectively  
and efficiently.  
[73] The EA will help the Executive team “complete their tasks effectively and efficiently”.  
“Among these tasks are handling confidential matters relating to the Board of Directors and  
employee relations; budgets and financial matters; and business and strategic planning for  
SMI and its Board of Directors”. The EA will be taking over the labour relations activities  
that Gaddess is currently performing. The EA will also be involved in recruitment, discipline,  
and terminations.  
[66] The Board is not satisfied that any of the administrative assistants’ primary duties include  
activities of a confidential nature in relation to one or more of the four listed categories. It is not  
sufficient to prove that they incidentally or occasionally perform such tasks. The Board is not  
persuaded that the Employer’s operations would be impeded by the inclusion of the administrative  
assistant positions in the proposed bargaining unit. As in SMI, the job descriptions and the list  
provided by the Employer in its Brief of Law32 are sprinkled with confidential duties that the  
administrative assistants do not actually perform.  
[67] The evidence also focused on a number of examples of confidential information that the  
administrative assistants may have access to that would not have a direct impact on the proposed  
bargaining unit, e.g., land development, supplier bidding, zoning, land purchases, competitive  
information of businesses, applications for development permits. This kind of confidential  
information does not relate to any of the four listed categories. This is not the kind of confidential  
information contemplated by the Act that would justify depriving any of the administrative  
assistants of their constitutional right to engage in collective bargaining.  
32 See para [44].  
28  
[68] The Employer also emphasized its responsibilities pursuant to The Local Authority  
Freedom of Information and Protection of Privacy Act. Watt’s evidence did not indicate that she  
had a role in processing or reviewing documents to determine which would be suitable to release.  
Kalynowski also indicated that she had no role in the process. Trach was not asked about this  
issue. Lutz, on the other hand, indicated that all of the administrative assistants have been  
involved in this process. He did not indicate in his evidence that any of the information reviewed  
pertained to labour relations, business strategic planning, policy advice or budget implementation  
or planning, or that it would have a direct impact on the bargaining unit. The evidence indicated  
that dealing with these applications is not a primary duty of any of the administrative assistants.  
[69] At the current time, none of the administrative assistants perform duties that would require  
them to be excluded from the bargaining unit. The job descriptions contain some vague  
aspirational or speculative references that might qualify as confidential functions, however there  
was no evidence before the Board that the administrative assistants were performing those kinds  
of duties or that there was a serious intention to have them perform those duties. Since they were  
assigned their new roles on November 1, 2021, there was no impediment to the Employer  
involving them in these duties, as they are not members of the current bargaining unit. The  
evidence was clear that none of the administrative assistants, including the PAAA, had any  
involvement in or sometimes even any awareness that these activities were occurring.  
[70] There was no evidence of significant integration of any of the administrative assistants  
with the managers. The administrative assistants in this matter perform tasks more akin to the in-  
scope administrative assistant referred to in SMI.  
[71] In United Food and Commercial Workers, Local 1400 v Verdient Foods Inc.33 [“Verdient  
Foods”] the Board described the requirement in the Act that the confidential duties must have a  
direct impact on the bargaining unit:  
The primary duties of the position must be of a confidential nature and have a direct impact  
on the bargaining unit. This impact must be direct, not indirect. It is not apparent, on the  
evidence, that the duties of these positions, in relation to any confidential data, have a  
direct impact on the bargaining unit or place the positions in a labour relations conflict with  
the rest of the proposed bargaining unit. The positions’ duties in relation to the confidential  
information would not undermine the adequacy of the employer’s internal resources to  
make informed and rational decisions regarding labour relations. At Verdient, labour  
relations decisions are made by managers. Neither of these positions are providing  
confidential information or advice to managers in relation to labour relations, or confidential  
information or advice that would have a direct impact on the bargaining unit in relation to  
33 2019 76957 (SK LRB) at para 118.  
29  
labour relations, as a regular part of their responsibilities. If these positions are placed in  
the bargaining unit, doing so will have no measureable impact on the Employer’s ability to  
proceed to make informed and rational decisions regarding labour relations in an  
atmosphere of candour and confidence.  
[72] The administrative assistants in this matter are equivalent to the positions at issue in  
Verdient Foods in that they do not provide confidential information or advice to managers in  
relation to labour relations, or confidential information or advice that would have a direct impact  
on the bargaining unit in relation to labour relations. In Verdient Foods, the confidential information  
to which the positions in question had access were described as trade secrets, information  
relating to customers, research and development and intellectual property. As a result, the Board  
came to the conclusion that the Lab Technicians and Lab Analysts should remain in the bargaining  
unit. Similarly here, the confidential information to which the administrative assistants have access  
is not information that would have a direct effect on their bargaining unit.  
[73] The Employer described the decision in Saskatoon Public Library Board (Saskatoon  
Public Library) v Canadian Union of Public Employees34 as finding that assistants who prepare  
budget plans that involve confidential information are appropriately excluded from the bargaining  
unit. The Board disagrees with that description. For example, in that decision, in deciding to  
exclude the Assessment and Continuous Improvement Analyst and Service Enhancement and  
Project Analyst from the bargaining unit, it described their duties as follows:  
[78] The Employer is planning wholesale changes to its operations. To enable it to  
undertake those changes on the basis of well-thought-out and well-researched information  
and recommendations, it came to the conclusion that it requires the assistance of two new  
positions: the ACI Analyst and the SEP Analyst. To properly carry out their primary duties,  
the people in these two positions will need to be fully immersed in the strategic planning  
and budget processes. They can only fully perform their roles if their positions are placed  
outside the scope of the bargaining unit. The evidence of the Employer, which the Union  
acknowledged, is that the ACI Analyst and SEP Analyst positions are complementary and,  
to some extent, overlapping. The Systems Engineers will perform similar work, but will be  
more focused on providing advice and recommendations respecting the role of modernized  
IT systems in those processes. A determination that these three positions should remain  
in the bargaining unit would place them in an insoluble conflict of interest.  
[79] These three positions will have access to information about the possible reduction of  
the workforce, the change or abolishment of positions or the increase or decrease of  
employment hours, during the planning stages, when the need for confidentiality is high.  
They may also receive confidential information that pertains to the purpose, goals and  
objectives of the analysis and improvements, such as information relating to labour  
relations, business strategic planning or budget planning. This information is needed to  
develop the monitoring systems, analyze the information and provide recommendations.  
34 Supra note 24.  
30  
[80] They represent the kind of internal resources that are necessary to enable the  
Employer to make informed and rational decisions regarding labour relations, strategic  
planning, policy and budget planning and implementation. In reviewing their job  
descriptions, it is necessary to consider the reason they will have access to the information  
and how it will be used by the employee, to determine whether it will have a direct impact  
on the bargaining unit. The Board must also respect the intention of the Legislature, in  
elaborating on the description of the confidentiality exclusion. The Legislature has  
established that the kind of work described in subparagraphs 6-1(1)(h)(i)(B)(II) to (IV) can  
also have a direct impact on the bargaining unit. The Board is satisfied that the primary  
duties of these three positions will have a direct impact on the bargaining unit.  
. . .  
[84] . . . They will not incidentally or occasionally perform tasks of a confidential nature; in  
their primary duties they are expected to have input and influence in the Employer’s  
decision-making processes with respect to labour relations, strategic planning, policy and  
budget planning and implementation.  
[74] None of the administrative assistants are fully immersed in the strategic planning or budget  
processes. They do not provide advice or recommendations with respect to labour relations,  
strategic planning, policy or budget planning or implementation. In their primary duties they are  
not expected to have input and influence in the Employer’s decision-making processes with  
respect to labour relations, strategic planning, policy and budget planning and implementation.  
[75] The Employer relied on City of Regina v Regina Civic Middle Management Association35  
for support for its argument that municipal employers are entitled to have excluded clerical staff  
to handle the clerical/administrative side of collective bargaining. The position at issue in that  
decision is not comparable to the administrative assistant positions at issue in this matter. Its  
duties were described by the Board as follows:  
[22] . . . The evidence from the City’s witnesses painted a picture of the duties of the  
Financial Business Partner as one who would have great influence on the management of  
the City in that it would assist Directors and Executive Directors in their analysis of  
budgetary and program options, some of which may have serious ramifications for the  
Unionized workforce.  
. . .  
[26] The position, as described by the City’s witnesses, checks 3 of the above boxes insofar  
as the witnesses testified that it would be involved in costing collective bargaining  
proposals, would be involved in business strategic planning in assisting with the review of  
existing programs and making recommendations in respect of their continuation,  
amendment or cancellation. Finally, the evidence was that the position would be directly  
involved in budgetary planning across the organization.  
[76] The work of the administrative assistants in this matter does not include budgetary or  
program analysis, costing, strategic planning, making recommendations respecting programs or  
budget planning.  
35 Supra note 22.  
31  
[77] The Employer relied on a 1984 decision of the Ontario Labour Relations Board36 in which  
executive secretaries who typed confidential budget proposals, salary offers, discipline letters and  
bargaining proposals were excluded from a bargaining unit. The Board does not find that decision  
helpful in making a decision in this matter. First, the decision does not provide information  
respecting the statutory provision pursuant to which the exclusion determination was made.  
Further, none of the administrative assistants in this matter perform any of the duties relied on in  
that matter.  
[78] Any shortcoming in the evidence to justify an exclusion, the Employer argues, is because  
of the short tenures of the incumbents in their positions. The Employer is in a period of transition.  
The Board does not accept this argument. The Employer has chosen not to impose duties on the  
administrative assistants that meet either the managerial or confidentiality exclusions. Lutz  
indicated that budget preparation occurs in the September to March timeframe and the  
preparation of audited financial statements from January to June. This means the administrative  
assistants were in their current positions during those timeframes, and they had no involvement  
in these tasks. He also acknowledged that The Municipalities Act requires council meetings to be  
open to the public.37 Of course, some portions of those meetings can be held in camera and some  
portions of the material considered at the in camera sessions may be confidential at that time.  
The onus was on the Employer to satisfy the Board that the primary duty of one or more of the  
administrative assistants is to prepare confidential information for those meetings that is with  
respect to labour relations, business strategic planning, policy advice and/or budget  
implementation and planning that will have a direct impact on the bargaining unit. This it failed to  
do.  
[79] The Employer is not entitled to one out-of-scope administrative assistant. The exclusion  
of even one administrative assistant is not a foregone conclusion. The onus is on the Employer  
to demonstrate that the exclusion is required in this workplace. The Board must make its decision  
of the basis of the evidence it heard to determine whether the criteria for an exclusion has been  
met.  
[80] The Board is not prepared to deny the administrative assistants their statutory and  
constitutional right to join a union on the basis of the Employer’s argument that it might assign  
36 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v Sternson  
Limited, supra note 23.  
37 Sections 119 and 120.  
32  
such duties to them in the future. Granting this application will leave the Employer with 5 out-of-  
scope employees (plus the out-of-scope Community Service Officer) in a workforce of 14 people.  
This is more than enough to allow the Employer the resources it requires to carry out duties  
respecting labour relations, business strategic planning, policy advice and budget implementation  
and planning that will have a direct impact on the new bargaining unit. The Employer will continue  
to have significant resources to make rational and informed decisions respecting labour relations,  
business strategic planning, policy and budget implementation and planning in an atmosphere of  
candour and confidence. There will be no insoluble conflict between the responsibilities which the  
administrative assistants owe to the Employer and their own interests.  
[81] The Board finds that all three administrative assistant positions are employees within the  
meaning of Part VI of the Act.  
Appropriateness of Bargaining Unit:  
[82] The next issue, then, is whether the proposed bargaining unit is appropriate for collective  
bargaining. In Amenity Health Care, the Board stated:  
[61] Determining what qualifies as an appropriate unit for collective bargaining purposes is  
one of the most important tasks assigned by the Saskatchewan Legislature to this Board. In  
Saskatchewan Federation of Labour et al. v Saskatchewan (Attorney General), Ball J., a  
former Chairperson of this Board, emphasized the significance of the Board’s authority set  
out in then section 5 of The Trade Union Act which has now been superseded by section  
6-11 of the SEA. He stated:  
The SLRB is created by The Trade Union Act. Its powers are, and have always  
been, described in general terms. Unlike labour legislation in some other  
jurisdictions, The Trade Union Act is not and does not purport to be a code. The  
manner in which SLRB carries out its duties and responsibilities is very much  
dependent upon how its members exercise their discretion and implement what  
they perceive to be the policy goals of the statute.  
. . . . . . .  
Pursuant to s. 5 of The Trade Union Act, the SLRB has an absolute discretion to  
determine appropriate bargaining units. Section 5(a) of The Trade Union Act  
states:  
5 The board may make orders:  
(a) Determining whether the appropriate unit of  
employees for the purpose of bargaining collectively  
shall be an employer unit, craft unit, plant unit or a  
subdivision thereof or some other unit;  
[T]here is little, if any, guidance in The Trade Union Act with respect to the rather  
elastic term “appropriate”. Section 5(a) does not obligate the SLRB to identify the  
33  
most appropriate unit; the SLRB certified any unit it deems appropriate for the  
purpose of bargaining collectively.  
The Board’s determination of the size and shape of an appropriate bargaining unit  
has significant public policy implications. It establishes the line between  
“employees” who will, in the event of certification, be represented by the union,  
and “managers” who will represent the employer. In a less than all employee unit,  
it establishes the line between employees who will, and employees who will not  
be, represented by the union. Thus, its determination is critical to the union’s  
capacity to secure certification as the employees’ bargaining representative, the  
employer’s continuing ability to manage the business, the relative strengths of the  
parties during the collective bargaining process, the eventual content of a collective  
agreement and whether or not the bargaining process will result in a strike or  
lockout. Its determinations affect not only the immediate concerns of the parties to  
the dispute; in some cases, particularly those involving larger bargaining units or  
workers providing essential services, they can affect the collective good of the  
community as a whole. [Emphasis added in Amenity Health Care]  
[83] In North Battleford CSO, the Board granted an application for bargaining rights with  
respect to a small unit, being six people. The Board there found that it could not be seriously  
contended that the six employees did not share a community of interest. They had the same job  
duties and the same job title and were not interchangeable with other workers; their job  
responsibilities were not shared by others; it was possible to draw a rational and defensible  
boundary around the proposed bargaining unit. There was no intermingling of job duties between  
the employees in the proposed bargaining unit and other employees. Finally, the Board stated:  
[78] The Board acknowledges that the unit proposed by the Applicant is a small one. Yet  
as we have stated in a number of our prior Decisions, the relatively small size of a proposed  
bargaining unit does not disqualify it from being an appropriate unit for certification  
purposes.  
[84] In North Battleford CSO the Board relied on the following statement in Canadian Union of  
Public Employees v The Board of Education of the Northern Lakes School Division No. 6438:  
The Board has always been reluctant to deny groups of employees access to collective  
bargaining on the grounds that there are bargaining units which might be created, other  
than the one which is proposed, which would be more ideal from the point of view of  
collective bargaining policy. The Board has generally been more interested in assessing  
whether the bargaining unit which is proposed stands a good chance of forming a sound  
basis for a collective bargaining relationship than in speculating about what might be an  
ideal configuration.  
[85] In this matter, there can be no legitimate argument that the administrative assistants do  
not share a community of interest. They perform similar duties; they use similar skills to carry out  
38 [1996] Sask LRBR 115 (SK LRB).  
34  
those duties. There is little connection with the members of the existing bargaining unit, and no  
overlap or intermingling of job duties.  
[86] The description of the bargaining unit establishes the line between employees who will  
and employees who will not be represented by the Union. The relatively small size of a proposed  
bargaining unit does not, in and of itself, disqualify it from being an appropriate unit.39  
[87] With respect to viability, the Board noted in North Battleford CSO:  
[83] The Board acknowledges that it is extremely difficult to assess with any degree of  
certainty whether the proposed unit will be viable in the longer term. However, we note the  
City already has had considerable experience with a small bargaining unit comprised of its  
fire-fighters, albeit a unit somewhat larger in size than the proposed unit at issue here.  
Certainly, there was no evidence led before us to suggest the existence of that unit had  
disadvantaged its members in any way, or that it had created workplace instability for the  
City.  
[88] The Board notes that the same rationale would apply in this matter. The existing  
bargaining unit consists of only five employees. No evidence was brought before the Board that  
it is not viable. It cannot be presumed that the proposed bargaining unit will fail because of its  
size. There is no evidence to show that the proposed unit is likely to fail in its objective to represent  
the collective bargaining interests of its members.  
[89] The Board also noted in North Battleford CSO that the Board’s preference for larger  
bargaining units is aimed at avoiding issues of certifying an under-inclusive unit, enhancing lateral  
mobility and eliminating jurisdictional disputes between bargaining units. None of those factors is  
at issue in this matter. As the Board concluded on that issue in North Battleford CSO, large is not  
synonymous with appropriate. In fact, section 6-22 of the Act contemplates that a bargaining unit  
may be composed of “two or fewer” employees.  
[90] The Board agrees with the Employer that it is unusual to have two bargaining units in a  
workforce of 14 people. It is also unusual to have 5 out-of-scope managers in a workforce of 14  
people. There is no evidence before the Board respecting why the existing bargaining unit  
excluded the administrative assistant. As the Union noted, all that the existing Certification Order  
did was to make a determination that the administrative assistant was not a member of that  
39 Amenity Health Care, supra note 9; North Battleford CSO, supra note 15.  
35  
bargaining unit. It did no more than draw a line between the employees who were, and the  
employees who were not, to be represented by the Union.  
[91] The Board is satisfied that the proposed bargaining unit is an appropriate bargaining unit.  
Jurisdiction of Board to Hear Application:  
[92] The Employer made a number of arguments in this matter respecting whether the Board  
had jurisdiction to hear this application. First it argued that since the essential character of the  
dispute between the Union and the Employer in this matter is based on an interpretation of the  
existing collective agreement, the Board has no jurisdiction to hear this matter. It relied on  
Northern Regional Health Authority v. Horrocks40 where the Supreme Court of Canada held that  
since the essential character of the complaint in that matter alleged a contravention of a collective  
agreement, it fell squarely within the mandate of an arbitrator, pursuant to a provision similar to  
section 6-45 of the Act.  
[93] The Employer also referred to Yashcheshen v Law School Admission Council Inc.41, which  
referred in obiter to section 6-45 of the Act. What it also confirmed is that in determining the  
application of a section like 6-45, it is necessary to first undertake an analysis of the essential  
character of the application.  
[94] The essential character of this matter does not arise from the interpretation, application,  
administration or contravention of the collective agreement or affect the interpretation of the  
collective agreement between the Employer and the existing bargaining unit. The scope clause  
in that collective agreement will not change or be affected by the decision in this matter. The issue  
in this matter is not whether the administrative assistant positions are included in the existing  
bargaining unit. The issue is first, whether the administrative assistants are employees within the  
meaning of Part VI of the Act and second, if they are, whether a bargaining unit consisting of the  
administrative assistants is an appropriate unit for collective bargaining.  
[95] Next the Employer argues that the collective agreement between the Employer and the  
existing bargaining unit is binding on the administrative assistants such that they are not entitled  
to make this application to establish a separate bargaining unit. It bases this argument on the  
wording of clause 6-41(1)(b) of the Act, which states that a collective agreement is binding on  
40 Supra note 17.  
41 Supra note 17.  
36  
every employee of an employer “who is included in or affected by it”. The Employer argues that  
they are affected by it in that it refers to their positions and expressly excludes them from the  
benefits and obligations in connection with being part of the existing bargaining unit. The  
Employer goes further and argues that they are excluded on the basis of their managerial  
character but the collective agreement does not say that. As the Employer pointed out, there is  
no evidence before the Board respecting why they have been excluded from the bargaining unit.  
In the Reply the Employer filed in this matter, the Employer stated that the existing Certification  
Order expressly resolved the issue of scope of the administrative assistants. In argument, it  
admitted that this was not the case.  
[96] The Employer submits that this argument is supported by the decision of the Court of  
Appeal of Newfoundland and Labrador in ExxonMobil. In that decision, an arbitrator found in  
favour of the union on a grievance, and then the project owner purported to deny the employees  
access to the project property, thwarting the arbitrator’s decision that the employees be allowed  
to return to work. The Court found that, even though not a party to the collective agreement, the  
owner was bound by the outcome of the arbitration award. This was because the project was  
being undertaken pursuant to a Special Project Order (SPO), which had been issued pursuant to  
provisions of the Labour Relations Act of Newfoundland and Labrador that have no equivalent in  
Saskatchewan:  
[21] By the time the SPO was drafted and enacted, the basic structure of the project regime  
would have already been worked out among all the main participants. Indeed, as noted  
already, the collective agreement pre-dated the SPO. ExxonMobil and its co-venturers  
were the ultimate beneficiaries of the project. They needed access to a project site at which  
their contractors could carry out the required work. The SPO gave them that along with the  
prospect of labour peace throughout the project. In that way, they had some guarantee that  
the project could proceed as contemplated. The contractors engaged by ExxonMobil also  
benefitted because they had a guarantee of relative labour peace and had access to the  
site to carry out their contracted work. The unions also had the benefit of a regime that  
eliminated jurisdictional disputes within their own ranks and a site-wide regime for resolving  
job disputes between employees and their individual employers. To achieve these benefits,  
each participant had to give up something: the unions, their right to bargain collectively on  
a union-employer basis; the contractors, the right to exercise management rights  
individually in respect of their own employees and the individual unions (subject to the  
grievance arbitration process); and ExxonMobil, the right to manage and employ their  
property rights in a manner inconsistent with the operation of the regime from which they  
were benefitting. It was an example of the principle of “he who receives the benefit must  
also shoulder the associated burden” (See Halsall v. Brizell, [1957] Ch 169). The process  
only worked because each participant became part of an integrated benefit-burden whole.  
. . . .  
[82] The only remaining basis upon which ExxonMobil could therefore maintain that it could  
nevertheless revoke site access privileges was to assert the primacy of their proprietary  
rights as “owner”. There not being a violation of the ExxonMobil policy (as found by the  
arbitrator) and no “other unacceptable conduct as deemed by [ExxonMobil]” having been  
37  
alleged, the assertion of the ability of unrestrained property rights is all that ExxonMobil is  
effectively left with.  
[97] Under the heading “The Nature of the Legal Regime Created by the Special Project  
Order”, the Court found:  
[87] Unless one was prepared to give primacy to the assertion of property rights regardless  
of how doing so would undermine a legislative policy that was being enforced for the benefit  
for all, one is driven to the conclusion that the rights flowing from the imposed collective  
agreement were intended by the legislature to have primacy over all other rights at the site  
that impacted on collective bargaining, which in accordance with section 2(1)(f) of the Act,  
relates to “terms and conditions of employment and related matters” (emphasis added).  
The jurisprudence based on notions of privity of contract that has had some currency in  
some other labour relations contexts is irrelevant in the current context where the regime  
is subject to an SPO.  
[98] The Court then considered the applicability of Bisaillon v. Concordia University42:  
[89] Bisaillon involved an entirely different issue (the extent to which a labour arbitrator’s  
jurisdiction derived from a collective agreement ousted the jurisdiction of the courts) and  
its statement of the law, as applied to the material facts of that case cannot be considered  
to be controlling and does not dictate any result in the current case. In any event, the  
statements of LeBel J, which assert that inasmuch as an arbitrator’s jurisdiction and  
authority derive from the collective agreement under which he or she is appointed is  
necessarily limited to binding only those who are parties to the agreement, are  
unremarkable in themselves. They simply assert a privity of contract concept in the labour  
relations context. Those comments, however, presuppose that the authority of the  
arbitrator is derived solely from the agreement. In the current case, however, the issue is  
whether the existence of the SPO regime imposes any greater restriction on non-parties  
who are involved in the operation of that regime with respect to labour relations matters.  
The arbitrator and the applications judge distinguished other cases based on privity of  
contract (Finning and Bantrel) on the basis that they did not deal with a special project  
regime. In like manner, the Bisaillon decision can also be distinguished on the same basis.  
Jurisdiction is derived, at least in part, from a different foundation that is outside of the  
collective agreement itself.  
[99] Under the heading of The Significance of Being “Bound” by an Arbitration Award, the Court  
found:  
[98] It is sufficient to conclude that ExxonMobil, like all other participants in and  
beneficiaries of the SPO regime, must respect that legal regime, including the decisions  
that flow out of it. That would include the obligation to refrain from undermining the regime  
of which it is a beneficiary. It must thus accept the labour relations and other related rulings  
of an arbitrator whose role is integral to the operation of the regime and which generally  
declare the legal situation on the site in the same way in which every citizen must abide by  
the law and the jurisprudence that emanates from the courts.  
[99] I prefer the approach of the applications judge when he stated that ExxonMobil’s rights  
are subordinated to the labour relations regime set up by the SPO and that ExxonMobil will  
42 2006 SCC 19, [2006] 1 S.C.R. 666.  
38  
necessarily be “affected by outcomes” flowing from the collective agreement that is  
legitimated by the SPO. ExxonMobil need only be regarded as being “bound” by the  
arbitrator’s ruling in the same way as a citizen is bound by the general law and the  
precedents emanating from the courts. Even if ExxonMobil may not be subject to the law  
of contempt for failure to abide by a specific arbitrator’s order, it will be subject to an  
obligation to refrain from interfering with the rights of workers which have been determined  
and declared as part of the operation of the SPO regime and to which all persons, including  
ExxonMobil, participating in or receiving the benefits of the activities contemplated by the  
regime are subject.  
[100] Indeed, even with respect to the one occasion when the arbitrator referred to  
ExxonMobil being “bound” he did not say that ExxonMobil was bound “by the award”;  
instead he said it was bound “by the outcome of the award.” That phraseology can also  
be interpreted in a manner consistent with the characterization of the effect of the award  
described by the applications judge. [emphasis added by NLCA]  
[100] A thorough review of that decision makes it clear that the Newfoundland and Labrador  
Court of Appeal was not making the general determination argued by the Employer, that even  
though not a party to the agreement, ExxonMobil was bound by the arbitrator’s decision. In fact,  
the Court went to great lengths to emphasize several times that the result in that matter arose  
from the special circumstances in that case in which the project was being undertaken pursuant  
to a Special Project Order made under provisions of the Labour Relations Act of Newfoundland  
and Labrador that have no equivalent in Saskatchewan.  
[101] Next the Employer argues that its interpretation of section 6-41 is supported by comparing  
the wording of that section to the wording of subsection 6-38(2), which reads:  
6-38(2) All members of the union who are in the bargaining unit affected by the collective  
agreement mentioned in subsection (1) are entitled to vote in the ratification vote.  
[emphasis added]  
[102] By using the wording “included in or affected by”, the Legislature must have intended  
section 6-41 to have a broader application:  
641(1) A collective agreement is binding on:  
(d) a union that:  
(i) has entered into it; or  
(ii) becomes subject to it in accordance with this Part;  
(e) every employee of an employer mentioned in clause (c) who is included in or  
affected by it; and  
(f) an employer who has entered into it. [emphasis added]  
39  
[103] Can it be argued that the administrative assistants are “affected by” the collective agreement  
between the Employer and the existing bargaining unit, on the basis of the scope clause that indicates  
that it does not cover them? Neither party provided the Board with a definition of “affect”, but the  
following definitions are readily available:  
To produce an effect upon (someone or something).  
To act on and cause a change in (someone or something).  
To cause illness, symptoms, etc., in (someone or something).  
To produce an emotional response in (someone).  
To influence (someone or something).43  
To have an influence on someone or something, or to cause a change in someone or  
something.44  
To act upon; influence; change; enlarge or abridge.45  
[104] These definitions indicate that an argument can be made that the administrative assistants  
are affected by the collective agreement, because they are named in it. An argument can also be  
made that they are not affected by it, because it specifically says that it does not apply to them.  
In making a determination respecting which argument to adopt, the Board is guided by the  
requirement that the exclusion of positions from a bargaining unit is to be made on as narrow a  
basis as possible. The Board therefore finds that the administrative assistants are not affected by  
or bound by the collective agreement between the Employer and the existing bargaining unit.  
[105] Section 6-41 also says that the Union is bound by the collective agreement. Would it be a  
reasonable interpretation of this provision to find that this means the Union cannot make this  
application? The Board finds that would not be a reasonable interpretation. The Board finds that  
the Union is bound by the current collective agreement only with respect to the current bargaining  
unit. This application is not, as the Employer suggests, a request for an Order to supersede the  
existing Certification Order and/or the existing collective agreement. The collective agreement  
and its scope clause do not prevent the Union from making this application.  
[106] Finally, the Employer relies on Kindersley and District Co-operative Ltd v Retail,  
Wholesale And Department Store Union46 to argue that the Board does not have jurisdiction to  
amend the scope clause in a collective agreement. In that case, the Board granted an amendment  
to the scope clause in a certification order, ordered that the new scope clause superseded the  
43 www.merriam-webster.com/dictionary.  
44 https://dictionary.cambridge.org/dictionary/english.  
45 https://thelawdictionary.org.  
46 Supra note 20.  
40  
scope clause in the collective agreement, and ordered that the collective agreement applied to  
the employees brought into the bargaining unit by the amendment. The Court of Appeal held:  
[34] . . .In my opinion, while s. 5 of the Act gives the Board the power to rescind or amend  
a decision or order of the Board and the power to order the parties to bargain collectively,  
it does not give the Board the power in the absence of exceptional circumstances, which  
do not exist in this case, to enter into the bargaining process and impose the terms of the  
collective bargaining agreement on the new parties to the collective bargaining agreement.  
[107] That decision is not relevant to the Application for Bargaining Rights being considered by  
the Board in this matter. That decision may have been relevant to the effect of an amendment, if  
Local 4838 had not withdrawn the amendment application, and had been successful in that  
application. However, that application is not before the Board. The Board is not being asked to  
amend the scope clause in the existing Certification Order or the existing collective agreement.  
The existing collective agreement will not apply to the administrative assistants unless the  
Employer and Union agree that it should apply.  
Conclusion:  
[108] In conclusion, with these Reasons, the Board will issue an Order that:  
a) The ballots held in the possession of the Board Registrar pursuant to the Direction for  
Vote issued in this matter on November 19, 2021, be tabulated in accordance with The  
Saskatchewan Employment (Labour Relations Board) Regulations, 2021;  
b) The results of the vote be placed in Form 24 and advanced to a panel of the Board for its  
review and consideration.  
[109] The Board thanks the parties for the comprehensive oral and written submissions they  
provided, which the Board has reviewed and found helpful. Although not all of them may have  
been referred to in these Reasons, all were considered in making this decision.  
41  
[110] This is a unanimous decision of the Board.  
DATED at Regina, Saskatchewan, this 26th day of July, 2022.  
LABOUR RELATIONS BOARD  
Susan C. Amrud, Q.C.  
Chairperson  


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