Working inmates lose bid to unionize
Labour board rejects drive to recognize federal prisoners as public servants
Inmates failed in their first bid to organize a national union for prisoners who are working while incarcerated in federal penitentiaries because that employment does not make them public servants.
The organizing drive was stymied by a Public Service Labour Relations Board ruling that it doesn’t have jurisdiction to hear inmates’ complaints because the work they do for rehabilitation programs does not make them employees of Correctional Services of Canada. The decision, based on written submissions, was released this week.
Inmates began a campaign to create a union, Canadian Prisoners Labour Confederation, at the Mountain Institution in Agassiz, B.C., more than a year ago to address pay, working conditions and other issues while working in rehabilitation programs. It was hailed as the first attempt to unionize inmates in Canada.
The labour board complaint originated with an inmate acting as the union’s interim president at Kent Institution, a nearby maximum security penitentiary, who claimed inmates were being denied their right to form a union.
The inmate claimed prison authorities stopped the union’s certification drive in the prison when the warden denied organizers’ request for access to all the cellblocks so they could sign up members.
The inmates wanted the board to issue an order that would force Corrections officials to allow them to sign up members and ensure there would be no retaliation against union organizers or the members who sign up.
Adjudicator Kate Rogers ordered the “file closed” and out the board’s jurisdiction because inmates employed in rehabilitation programs in federal penitentiaries are not employees in the public service, as defined under the acts governing employment in government. These acts include the Public Service Employment Act, the Financial Administration Act and the Public Service Labour Relations Act.
She noted, however, that the idea of inmates belonging to unions for collective bargaining is “not as incongruous as it might seem at first glance.” She said there are legal precedents for inmates working in rehabilitation programs who can be “employees” depending on the nature and purpose of the work, the working conditions and how integral the work is to the employer’s operations.
She pointed to a bargaining unit that included inmates working in a Guelph abattoir located in an Ontario correctional facility. More than half of the employees are inmates who worked alongside employees of the abattoir and their jobs were considered integral to operations.
Although the work was part of a rehabilitation program, the Ontario Labour Relations Board found an “employeremployee relationship” between inmates and the abattoir’s owner.
“In this case, I do not believe that I have sufficient evidence that would allow such a determination to be made,” she said.
The inmates argued they had an “employer-employee” relationship with Corrections and the penitentiary system. They argued offenders had to compete for the jobs, which went to the “bestqualified.” They faced “rigorous” performance appraisals and received wages worth 15 per cent of the federal minimum wage. Offenders injured on the job are also entitled to compensation similar to workers’ compensation paid to other employees.
But Corrections, which argued the labour board had no jurisdiction from the start, rejected claims of a “employer-employee relationship.” The department didn’t dispute they were entitled to compensation, but argued that doesn’t turn the work they do into employment in the public service.
The department argued the rehabilitation programs are designed to help prisoners reintegrate into society. The programs are managed by a board which handles inmates’ assignments and their wages come from the department’s operating budgets and are considered “program” — not salary — expenses.
But Rogers concluded she was bound by the definition of “employee” in legislation governing employment in the public service rather than the traditional common law tests to determine who is an employee. She said the courts have also decided that one can only be an employee in the public service if they are appointed by the Public Service Commission.
“The complainant presented no evidence that he was appointed to a position created by the Treasury Board in the public service and nor does he present any evidence to support his allegations that offenders working within federal penitentiaries are employees in the public service,” she wrote.
A lawyer who represented inmates in their campaign to unionize said inmates wanted a union, rather than another prisoners rights group, to deal with their complaints, from improved safety to better training. Inmates argue they have the same rights as other Canadians under the Charter of Rights and Freedoms, the Canadian Human Rights Act and the Canada Labour Act and should be able to form a union.