FPSLREB Decisions

[1]   By letter of June 7, 2004, the Public Service Alliance of Canada, pursuant to section 76 of the Public Service Staff Relations Act, requested the establishment of a conciliation board for the Program and Administrative Services Group bargaining unit.

[2]   Rosemary Warskett and Pierce Sutherland, who were appointed members of the conciliation board on the nomination of the bargaining agent and the employer respectively, jointly nominated Ken Norman to act as the chairperson of the conciliation board on the mutual understanding that the board would meet with the parties on September 12th, 13th, 14th, 18th & 19th, 2004.

[3]   This conciliation board was duly established on August 4, 2004, with the direction from Yvon Tarte, Chairperson of the Public Service Staff Relations Board, to report in this matter within 2 weeks following the first meeting with the parties.

[4]   In a meeting prior to the commencement of the first session with the parties, the board resolved to take seriously the instruction in section 85 (1) of the Public Service Staff Relations Act "to endeavour to bring about an agreement between the parties in relation to the matters set out in the statement". To this end, both individually and collectively, board members met informally with the parties over the course of the first 3 days. This process was continuous save for a punctuation point on the part of Nycole Turmel, National President of PSAC, that took the form of a formal presentation to the board and the assembled bargaining teams on the PSAC's Social Justice Fund demand.

BACKGROUND

[5]   This bargaining unit contains over 75,000 [according to the Treasury Board] or 78,000 [according to the PSAC] employees in some 65 [according to the Treasury Board] or 70 [according to the PSAC], government departments located in Canada and abroad with a payroll of more than $3,000,000,000. The parties agree that women make up about 75% of the bargaining unit in both indeterminate and term positions. Term employees make up 16% of the bargaining unit.

[6]   In the aftermath of service of a notice to bargain on Treasury Board, on April 1, 2003, the parties logged 25 days of bargaining [the last 10 of these in February were held with the assistance of a conciliator] prior to coming before this board of conciliation.

[7]   Complicating this process was the addition to this bargaining unit, as of December 12, 2003, of over 7,000 employees from the Custom and Border Service Agency. This prompted cancellation of negotiations that had been slated for the week of January 12th, 2004. On January 28, 2004, the PSAC incorporated into its demands a number of items important to its new Custom and Border Service Agency members. The two conciliation sessions that followed, on February 9th to 13th and February 23rd to 27th, concluded with the conciliation officer as the parties were not moving towards a deal.

ISSUES

[8]   The PSAC's voluminous brief advised the board that "the PSAC negotiating team has worked hard to present the Board with a workable package despite the lack of serious negotiations thus far and we look forward to having many of our key priority demands addressed through the Conciliation Board process." The Treasury Board also verbally expressed frustration at the lack of progress achieved through the bargaining process.

[9]   The board strove mightily to assist the parties to clear the table of marginal issues so that key matters of dispute might be addressed. By the board's estimate, despite 25 days of bargaining, spread over 5 months, followed by 7 more months of opportunity for the parties to work separately on the tabled issues, the parties presented this board with about 97 points of difference with regard to the proposed contents of their next collective agreement.

[10]   The board's first 3 days of mediation sessions resulted in some, but not much, common ground being established. And, some movement occurred on both sides. Then, with our agreed scheduled time running out, we devoted our attention fully to hearing both sides on their issues. Happily, more common ground was located and more movement, especially on wages, took place. Thanks are due to both teams and to their able negotiators for this.

APPROACH

[11]   After much discussion we determined to aim at identifying those elements that, in our judgment, should be conducive to an agreed settlement. This approach was announced to the parties during the course of our conciliation process with them.

RECOMMENDATIONS: MAINTENANCE AND REPAIR OF WORK PLACE RATHER THAN NEW CONSTRUCTION ISSUES.

[12]   The board proposes to confine our recommendations to work place issues of maintenance and repair on the following rationale. First, at the end of the fifth long day of our conciliation process, there remained a welter of outstanding issues on the table between the parties and before us. Though the absolute number of issues was reduced by about 50% there still remained a staggering array of diverse and complex matters in dispute. This caused the board to resolve, in the limited deliberation time available, to seek to determine the heart of the matter as the board sees it and leave the parties to work through the penumbral issues. Second, we did not wish this report to raise impediments to the productive collective bargaining process that this board is confident can yet be engaged in by these parties at Table 1. An illustration of what we have in mind here is the cautionary tale, for the approach of this report, of one key aspect of the PSAC's initial "personal harassment" demand.

[13]   In support of its demand for the equivalent of a personal harassment clause the PSAC brief cites a clause in the University Teaching (UT) collective agreement that incorporates the Treasury Board's Harassment in the Work Place Policy. The Treasury Board adamantly rejects this demand on the ground that the UT provision was never agreed to. It was imposed by an arbitration panel in the early 90's. The Treasury Board has sought to have this clause removed ever since. For, the Treasury Board is convinced that the field of personal harassment is not appropriate for the rights regime of a collective agreement. It is far better handled by policy means such as in its Harassment in the Work Place Policy with its emphasis on prompt resolution through early intervention, discussion and mediation. The matter of interpersonal conflicts is so subjective and the notion of personal harassment is so undeveloped, a personal harassment clause would generate so many grievances as to be counterproductive in reaching the mutual goal of achieving respectful work places.

[14]   In other words, in our judgment, for this board to wade into an issue of new construction would be to contradict our approach by raising an item that might well prove to be a deal breaker. Accordingly, we will make no comment on any new construction demand.

EMPLOYEE RIGHTS AND OBLIGATIONS

Education and Learning

[15]   This board recognizes the PSAC's perspective on the collective agreement as a vehicle for education and learning. We recommend that with regard to existing employee statutory rights in the Canadian Human Rights Act and the Canada Labour Code, Part II, the relevant articles in the collective agreement flag these statutes so that employees will be better informed as to their work place protections.

[16]   With regard to the Joint Learning Program [JLP], we understand that both parties have taken this pilot project seriously. And, in an initial evaluation findings report, of January, 2004, Consulting and Audit Canada commented that "While program internal and external stakeholders are of the view that the JLP is an effective way of improving labour/management relations in the workplace, it is too early to be able to definitively confirm this is the case." So, as the assessment process is still under way, it is premature to say more than this. Should the final assessment be positive, we recommend that the parties explore means of implementing more such learning programs.

Equity and Seeking Work-Life Balances

[17]   This board recognizes the importance of these family responsibility questions especially for this bargaining unit. As we have earlier noted, women make up about 75% of this work force in both indeterminate and term positions. Further, Table 1 contains the largest number of term employees. And, they constitute about 16% of the bargaining unit. This board recognizes the changing pattern of family relationships in contemporary society. The next decade will see a rapid growth of the sandwich generation. The elderly will increasingly need care from their adult children. And, older adults may increasingly become involved in the care of their grandchildren.

[18]   There are a range of leave provisions that are implicated in this recognition of family responsibilities such as maternity and parental leave, including the treatment of term employees; maternity related reassignment; leave for care of immediate family; leave for family related responsibilities, compassionate leave and marriage leave. On consideration of the array of arguments presented by the parties with regard to bones of contention over these leaves this board has one general recommendation and one specific comment to offer.

[19]   In light of the gender demographic of Table 1, this board urges the Treasury Board, on a number of these issues, to attend to the legitimate concerns raised by the PSAC on behalf of its members.

[20]   With regard to the PSAC's demand for recognition in the marriage leave clause of public same sex commitment ceremonies, in light of the Canadian Human Rights Tribunal's order in Boutilier, Huard & Gurr (2003 CHRT 20), of May 26, 2003, this board wishes simply to note that the Treasury Board's proposal of a universal one-time 3-day vacation leave entitlement complies by placing a blanket over the tough question that, in the federal sector, awaits the current reference to the Supreme Court of Canada. However, it does so at some cost to hetero couples - by imposing a 2-year waiting period and reducing their marriage leave from 5 to 3 days; to same sex couples - by both of these factors and by denying them formal recognition in the collective agreement; to term couples by denying them access - due to the 2-year waiting period; and to the public purse - by adding a provision that will likely cost a good deal more than the PSAC's proposal.

OPERATIONAL CONCERNS

[21]   This board recognizes the importance that the Treasury Board attaches to its proposal that all leave credits and leave entitlement be specified in hours, with the exception of bereavement leave which should be specified in calendar days. For the Treasury Board the current state of affairs is simply anomalous and must be fixed. The essential concern here is that, as things stand presently, employees whose hours of work are averaged earn more leave with pay than do their peers who work a regular schedule.

         An illustration is provided in Urs Breitenmoser and Others 2004 PSSRB 103, at page 16. An employee working a regular schedule, that is, Monday to Friday, 8 hours a day, would be entitled to 40 hours of paid family-related leave. However, a variable shift employee working 12-hour shifts would be entitled to 60 hours of such leave. The Treasury Board proposal is to fix this anomaly by converting both entitlements, credits, and the granting of leave with pay in whatever form it takes to hours save, that is, for bereavement leave. This board urges the PSAC to address this anomalous state of affairs.

[22]   That said, this board recognizes the point made by the PSAC in its brief in Urs Breitenmoser and Others, at page 14, that Justice Gibson, of the Federal Court Trial Division, in Canada (Attorney-General) v. King, [2003] FCJ No. 777 (TD) at para. 23, asserted that paid leave for family related responsibilities is an entitlement which arises on the basis of need rather than as an earned credit such as vacation or sick leave. In short, the Treasury Board's proposal leaves a further anomaly in its wake. There is no apparent rationale for treating bereavement leave as the only leave to be granted on a calendar day basis save, that is, for the fact that it was so treated in the former master collective agreement. Surely, as Justice Gibson has most recently pointed out, need-based leave is categorically different from earned credit leave. Accordingly, this board urges the Treasury Board to address this challenge.

[23]   With regard to the difficult transition that has been experienced in the aftermath of the transfer into this bargaining unit, as of December 12, 2003, of over 7,000 customs employees, this board recommends that a letter of assurance be given to the PSAC outlining implementation time frames with regard to the introduction of a new classification standard. This board anticipates that the issue of enforcement responsibilities will be recognized and dealt with in this exercise.

[24]   This board recognizes that, due to coordinated bargaining of the public service tables, the Treasury Board considers itself to be up against it when comes to implementing a renewed collective agreement within the 90-day statutory limit. We recommend that the PSAC address this concern by bargaining some extension period.

[25]   No one doubts that, for a variety of reasons including new physical plants and contentious interpretations, the Penological Factor Allowance [PFA] is in a sorry state of disrepair. Progress has been achieved on this before us by the parties in narrowing the many points of difference in approach and criteria. This board encourages the parties to work together to develop a PFA scheme that is much less complicated and less open to subjective interpretation. In this regard, we urge the parties to resolve their differences concerning custodial responsibility versus risk exposure by focusing on just what is real and what is not as well as on just what is more and what is less valued in the relevant job descriptions.

ADMINISTRATION ISSUES

[26]   There are a number of obsolete provisions that beg to be deleted, though perhaps not at wholesale. An example that springs to mind here is the identification of a grandfather with 45 years of public service who still remains entitled to the old furlough leave clause. There are errors in translation. Article 46.01 is an example where the English term is spouse and the French term is conjoint. Progress was achieved by the parties before us on these issues. We are confident that the parties will be able to resolve these matters en route to a renewed collective agreement.

ECONOMIC ADJUSTMENTS

[27]   With regard to call-back and standby overtime pay, this board recognizes the Treasury Board's position that the collective agreement needs to be brought in line with the technological evolution of the work place. Some employees can now work at a distance and often from home thus avoiding the need to physically report in to their office when called in. We note that several groups including TC, FS, FI, SO and SR-C have clauses that take this in to account and recommend that this new reality be addressed by the parties.

[28]   With regard to shift definition and overtime on a second day of rest, this board recognizes that these are legitimate economic interests of the Treasury Board that require further bargaining.

[29]   This board recommends that, where an employee in this bargaining unit meets the same job and certification requirements, that already exist at Table 2, concerning the Transportation of Dangerous Goods Allowance, that same benefit should be paid.

Wages and Duration

[30]   With a growing economy currently nearing full capacity, according to Bank of Canada governor David Dodge, and what that means in terms of enhancing the Government's revenue stream, there is power to the PSAC's claim to a fair share for its membership. And, there is no apparent overriding labour relations reason to deny this plea. Granted, presently the Treasury Board does not face problems of recruitment and retention, however, that point needs to be tempered by the public policy consideration that pushing this labour market perspective too hard will surely erode pay equity gains that have been achieved to remedy past wage discrimination against the women in this bargaining unit.

[31]   In terms of a big picture reality check, one can say that there may only still remain in play something like a spread of 1.75% over three years. [If, that is, one focuses on the Treasury Board Nominee's recommendation, at Table 2, of 2.5%, 2% and 2% and the PSAC's endorsation of the CCRA Conciliation Board Chair's recommendation of 3.0%, 2.75% and 2.5% as a good basis for renewed talks.] During the course of the productive exchanges on wages before us, the parties at Table 1 did not quite make it to these positions. The PSAC's last bargaining position before us, while noting that the CCRA Conciliation Board Chair's opinion was the closest comparator for us to look at, came in at 3.50%, 3.25%, 3.25% and 2.0% on the footing that the difference between CCRA and Table 1 wage rates needs to be taken into account. [The data supporting this differential is a lower weighted average for Table 1 employees of 1.64% in 2000, 2.28% in 2001 and 2.28% in 2002.] The Treasury Board ended up before us at 2.25%, 1.75% and 1.75%. However, we believe that these are bargaining positions. And, we are confident that the ultimate settlement that we say is achievable in short order, if the parties agree to further talks, will surely fall within our 1.75% big picture spread over 3 years. Accordingly, we urge the parties to return to the table. A deal on wages is now within reach of the parties. And, with that in place, we are confident that the rest can be dealt with along the lines that this board has outlined.

[32]   In conclusion, because relationships matter in bargaining, we wish to note that the chief negotiators at Table 1, Marc Thibodeau for the Treasury Board and Lynn Whittaker for the PSAC, have demonstrated that they are fully up to the challenges this report puts to the parties. In the 5 long hard days that they laboured before us, these two mature negotiators displayed not only a high degree of competence in dealing with the voluminous and disparate elements in dispute in the vast and complex terrain of Table 1 but also continuously manifested an impressive degree of mutual respect.

[33]   Finally, I wish to pay a tribute to my colleagues on the board. Pierce Sutherland and Rosemary Warskett brought to our task enormous depths of collective bargaining experience with these two parties. Further, they worked harmoniously and effectively with me and with the parties to achieve some real bargaining exchanges and gains in the time we spent with the parties. And, in our final executive sessions, with great good will and generosity, they helped me to articulate and deliver on the approach that has informed this report.

DATED AT SASKATOON THIS
25 DAY OF SEPTEMBER, 2004.

_________________________
Ken Norman, Chair,
Table 1 Conciliation Board

DATED AT OTTAWA THIS
26 DAY OF SEPTEMBER, 2004.

__________________________
Pierce Sutherland,
Employer Nominee
(with partial dissent)

___________________________
Rosemary Warskett,
Bargaining Agent Nominee
(with partial dissent)

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PARTIAL DISSENT AND RECOMMENDATIONS OF THE NOMINEE FOR THE PUBLIC SERVICE ALLIANCE OF CANADA

With respect to the Conciliation Board Report concerning the dispute between the PSAC and the Treasury Board, and the employees of Program and Administrative Service Group.

I would like to thank the chair, Ken Norman, and all the parties for their expertise and cooperation during the process. In particular, I would like to thank the members of the PSAC's negotiating team for their patience, hard work and efforts to negotiate during the period of conciliation. Under very difficult circumstances they represented the members of their union as well as they could. It was apparent throughout the hearings, and during the board's attempt to mediate and conciliate the differences between the Treasury Board and the PSAC, that the process was one of considerable frustration for these employees.

As noted by the conciliation board's report, the brief presented by the PSAC drew our attention to the lack of serious negotiations thus far. Unfortunately this state of affairs continued during the board hearings. Despite the willingness of the PSAC's team to negotiate and present amended positions, there was little response on the part of the Treasury Board. It appeared that the Treasury Board negotiators had little or no mandate to conduct serious negotiations. In the end the PSAC had no choice but to present its issues to the board, without having the opportunity to engage in serious negotiations with the employer.

I would like to state that I agree, in many instances, with the board's perspective on the issues in dispute. The board, however, has chosen to write very few specific recommendations, instead urging the parties to return to the bargaining table and settle their differences based on the principles outlined in the report. The problem, however, is that free collective bargaining can only occur when both parties to the dispute know that eventually they must settle their differences at the bargaining table. The history of recent negotiations suggests that Treasury Board has little interest in negotiating, and indeed there is evidence that it is acting as if there is no need to. There was little in this period of conciliation regarding the dispute at Table 1 that would lead to another conclusion. I hope I am proved wrong in this regard. Given the present situation, however, I will present recommendations on the following issues that remained in dispute at the end of the board hearings.

Education and Learning
I agree with the recommendation in a paragraph [15] of the board report that refers to employees' statutory rights in the Canadian Human Rights Act and the Canada Labour Code, Part 11 (Health & Safety). And that the "the relevant articles in the collective agreement flag these statutes so that employees will be better informed as to their work place protections."

One further conclusion to be drawn from the Board's recommendation in a paragraph [15] is that Article 22 also flag the Canadian Human Rights Act. I recommend further that the title of this article be changed to Harassment and that 20.01 state that "This article includes harassment within the meaning of the Canadian Human Rights Act." This would indicate to employees, who have a harassment problem under any of the grounds in the Act, to lay a grievance and proceed through the grievance procedure.

I further recommend that personal harassment be included in the collective agreement. The board's report stated that Treasury Board argued that the problem is better handled by policy means. Yet there is evidence that the revised policy has not resulted in diminishing the problem. As indicated in the PSAC's brief, a survey of federal employees in 2002 found that there was an increase in those employees reporting harassment in the work place, after the revised policy was put into effect. Three quarters of these employees reported they experienced harassment by those with authority over them. By including clauses on personal harassment and abuse of authority in the collective agreement, employees would be better informed, they would know that they can grieve the problem, and that they could receive representation and support from the union.

Equity and Seeking Work-Life Balances
I fully endorse the board's recognition of the family responsibility questions for this bargaining unit and I agree with the board's perspective outlined in paragraph [17]. The board report, however, needed to follow through on the implications of its perspective and make the following recommendations:
Article 40, remove those words that restrict Parental Leave without Pay to a single period of up to thirty-seven consecutive weeks. This would be consistent with the Canada Labour Code, Part 111 and the Employment Insurance Act, that allows benefits to be split into more than one period.
Article 41, change the title to Leave Without Pay for Care of the Family. Expand the definition of family to include partner, grandparents, parents of spouse/common-law spouse/partner. Also include Compassionate Care Leave that would reflect an existing right under the Employment Insurance Act.
Article 43 - Leave With Pay for Family Related Responsibilities. Expand the definition of family as above and in 43.02 increase the leave provision to seven days.

Treatment of term employees - Five Days Break in Service.
The board points to the legitimate concerns raised by the PSAC concerning term employees. There are a number of demands by the PSAC relating to the unfair and inconsistent treatment of terms. The union seeks for term employees, covered by the collective agreement, the same rules for continuous employment found in the Terms and Conditions of Employment Regulations. It is recommended that all applicable articles in the collective agreement be changed to reflect that a minimum of three months constitutes a break in service. This recommendation affects the following articles:
Article 38 - Maternity Leave Without Pay and Article 40 - Parental Leave Without Pay Currently term employees, whose break in service is more than five days, must repay the maternity and parental leave allowance. This "five day" rule is inconsistent with the adjudication decision Reid, Dixon and Desmarais v. Treasury Board, (1997) PSSRB 166-2-27085. In that case the maternity allowance was reinstated because the adjudicator found that the employees had been rehired within three months and therefore were deemed to have retained their continuous employment status. Further to this problem, it would be consistent with the board's recommendation on education and learning to flag the Term Employment Policy in the collective agreement.

I recommend that in the spirit of treating term employees equitably that there be entitlement for an increment after 52 weeks of cumulative service.

Marriage Leave and definition of a Spouse
I agree wholeheartedly with the board's perspective on this issue. I would add that the employer's three day vacation leave proposal is not a credible solution to the Canadian Human Rights Tribunal's order in Boutilier, Huard & Gurr (2003) CHRT 20. I recommend that the discriminatory language in Article 45 be removed and the five day marriage leave provision be extended to employees participating in same-sex, public commitment ceremonies. In addition in article 2.01 the discriminatory languages are changed to reflect the changes in Article 45.

Employer Proposal: Conversion of Days to Hours
It is clear that Treasury Board attaches great importance to its demand for leave credits and entitlements to be specified in hours instead of days. This being the case, one would have expected the employer to come to the conciliation board hearings prepared to hear the union's position and engage in meaningful negotiations by giving consideration to other key issues presented by the union. Also, the expectation of Treasury Board seems to be that its definition of a day should be changed in the collective agreement, without considering the lessons of the adjudication cases the employer lost on the contract's present wording.

Treasury Board in the hearing stated that it proposed to revert to the original provisions of article M-40 in the old master agreement. This means that all leaves, with the exception of Bereavement Leave, would be calculated on an hourly basis. The problem here is one cannot distinguish between Bereavement Leave and other leave provisions in the collective agreement such as Paid Leave for Family Responsibilities. Bereavement leave is exercisable on an "as needed basis," as were the other leaves that were at issue in the grievances under dispute in the recent adjudication decision in Urs Breitenmoser et al V. Treasury Board, (2004) PSSRB 103. Accordingly the demand by the employer to convert days to hours does not have a logically consistent basis and it's rational is flawed.

Allowances
I agree with the board's recommendations in [29] concerning the Transportation of Dangerous Goods Allowance. I recommend that the same principle be extended to the Inmate Training Allowance, namely that an employee that meets the same criteria as a member of Table 2 should receive this allowance.

The board makes no recommendation to continue the past practice of providing an allowance for enforcement duties. Particularly this needs to be included in the light of the recently expanded enforcement duties of thousands of Table 1 employees.

Social Justice Fund
The Board's report is silent on the demand by the PSAC for the employer to contribute one cent per hour worked to the PSAC's Social Justice Fund. Given the benefits that could result from this contribution, the cost is comparatively low at approximately $19.50 per member per year. Furthermore, this demand does not lead the private sector, as there are many examples of large private corporations contributing higher amounts to the Social Justice Funds of unions such as the CAW and the Steelworkers.

The fund promises to contribute to social justice initiatives, both internationally and nationally, and is complementary to and consistent with the Canada government's international objectives. We often read in the popular press that labour unions are only concerned about the welfare of their own members. Social Justice Funds are examples of social movement unionism, a form of unionism seeking justice for all members of society. Such objectives should be encouraged rather than ignored by the Treasury Board of the Government of Canada.

Rates of Pay
In general I agree with the board's points supporting "the PSAC's claim to a fair share for its membership." I do not agree, however, with the statement that there is only 1.75% difference over three years between the PSAC's and TB's positions. The evidence points to a greater disparity than this. Furthermore, a reasonable settlement should include wage restructuring and wage harmonization for all employees at table 1. Without restructuring, harmonization and a significant economic increase key issues such as the transfer and integration of the more than 7,000 employees transferred from the Canadian Customs and Revenue Agency will not be adequately addressed. That being said I agree with the board that a deal between the PSAC and Treasury Board is certainly possible, especially given the current government's financial position and the positive economic climate

Rosemary Warskett
Nominee of the Public Service Alliance of Canada
Ottawa, Ontario
September 26, 2004.

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190-02-335

PARTIAL DISSENT AND RECOMMENDATIONS
OF THE NOMINEE OF THE
TREASURY BOARD OF CANADA

IN THE MATTER OF THE CONCILIATION BOARD ESTABLISHED BY THE CHAIRPERSON OF THE PUBLIC SERVICE STAFF RELATIONS BOARD BETWEEN:


THE TREASURY BOARD OF CANADA (THE EMPLOYER)

AND

THE PUBLIC SERVICE ALLIANCE OF CANADA (THE UNION)

CONCERNING

THE PROGRAM AND ADMINSTRATIVE SERVICES GROUP (TABLE 1)

Ken Norman, Chairperson
Rosemary Warskett, Nominee of the Public Service Alliance of Canada
Pierce Sutherland, Nominee of the Treasury Board of Canada

I would like to thank Ken Norman, the chairperson of this Conciliation Board and Rosemary Warskett, the nominee of the Public Service Alliance of Canada for their efforts throughout the Conciliation Board process. Despite the differences of opinion that arose on a number of issues, the Conciliation Board was able to function in a business-like, problem solving environment with the objective of assisting the parties work towards a settlement.

I would also like to thank both the Employer and Union negotiators and their bargaining teams. The bargaining process, which is often frustrating and difficult, requires perseverance and commitment, which were displayed by both parties throughout this process. I would also commend the teams for their civility and positive approach which should ultimately enable them to find the necessary solutions leading to a settlement.

In my view, there were a couple of issues facing this Conciliation Board that lessened the likelihood of success. The multi-table structure used by the parties, which has them looking over their colleagues' shoulders at other tables with a reluctance to make moves for fear of conceding an important matter or dropping an important demand, severely inhibits the bargaining process. Unfortunately, the table setup and timing process that was followed inevitably leads to this result.

The other inhibiting issue was the large number of outstanding issues brought before this Board. Some progress was made to narrow the issues and the parties are to be commended for their efforts. However, if the parties had started the process the first day where they ended up at 8 PM on the fifth day of the Conciliation Board proceedings, much more meaningful progress could have been made. For a Conciliation Board to be in a position to provide more meaningful assistance to the parties, or provide well thought out and reasoned recommendations on important and often extremely complex issues, the Board requires extensive presentations and analyses of a handful of matters over a number of days. To do otherwise results in a disservice to the parties. To categorically adopt one parties' position over the other after having received limited evidence and argument simply because there are so many items in dispute is often impossible, and, in some cases, irresponsible.

I have reviewed the Chairperson's report and support his constructive approach to identifying areas where the Board believes solutions lie on the key issues in dispute. I agree with the Chairperson's report on all matters except for the following four areas:

1) The inclusion of references to the Canadian Human Rights Act and the Canada Labour Code Part II in the collective agreement I do not agree with the Chair's recommendation that 'relevant articles in the collective agreement flag these statutes.' In my opinion, education and learning on these types of matters can best be accomplished through training and education programs. A broadly based learning program applicable to all bargaining agents and all public servants might be a more appropriate avenue to explore to accomplish these objectives. There are dozens of statutes and policies that apply to public servants on a vast array of issues. The inclusion of these matters by reference in the collective agreement does little by itself to promote education and learning. It simply adds language that could result in endless litigation and argument over the significance of their reference in the collective agreement. Another possible alternate approach to further access to this type of information would be through the use of a website. Today's workforce is technologically literate and the use of more innovative approaches to educate individuals on matters of this nature should be explored.

2) Expansion of the leave provisions related to work-life balance In the main report, the Chair rightfully points out that workplace pressures as a result of family related issues continues to grow. I would argue, however, that the benefit package already enjoyed by employees in this bargaining unit is very generous. In fact, the President of the Alliance in her appearance before the Conciliation Board cited the accomplishments that the union had made in producing some of these 'important gains.' While these types of issues cannot be ignored, the obligation of the Employer to deliver programs and public services must also be recognized. There is a limit to which any Employer can go to accommodate these work-life matters. I would submit that this Employer already has been extremely responsive to these issues.

3) Expansion of exemption to conversion of days to hours for leave benefits. While I concur with the thrust of the Chair's recommendations on this issue, I do not agree with his suggestion that leave for family related responsibilities be added to bereavement leave as an exemption to other types of leave that will be converted to hours. The fact that bereavement leave is the ONLY leave benefit in the collective agreement expressed in calendar days is significant. The parties clearly intended that this type of leave would entail the employee being away from the workplace for a blocked period of time up to five full calendar days (including weekends and working days). It is distinct in the collective agreement and as such should be the only exemption to the conversion of all leave benefits to hours.

4) Rates of pay Over the course of the Conciliation Board proceedings and in the Board's deliberations, much discussion focused on pay equity gains and the comparison of wages in this bargaining unit to the private sector. While I am sensitive to the pay equity issue, one cannot completely ignore the reality of rates of pay in the private sector. The recent large pay equity increases for this group resulted from internal comparisons of wage rates between occupations within the federal government.
(a) Do similar pay equity issues exist in the private sector? Probably, but who knows the extent of the problem?
(b) Should all private sector comparisons be avoided because there may be pay discrimination practices? Why are pay comparisons with the private sector appropriate for table 2 which is behind the market but not appropriate for table 1 which is ahead of the market?
(c) What should drive the pay lines within the federal government? If pay equity considerations are the fundamental consideration, should collective bargaining be eliminated because of its private sector wage comparison base?

Despite these questions, the Conciliation Board is charged with the responsibility to weigh the parties' submissions and develop recommendations. While the Chairman's approach on this issue is interesting, and could prove prophetic, it does not reflect the reality that the Employer's position is far closer to an appropriate settlement position than is the Union's.

There are two key elements to consider in crafting a recommendation on pay: internal relativities which were addressed by the pay equity settlement and external relativities. On this later point, a major respected Canadian human resource firm in the wage forecasting business (Morneau Sobeco) recently released its 2005 wage projections. It estimates that the public sector average wage increase for 2005 is expected to be approximately 2%. Evidence provided to the Conciliation Board indicates that this group of employees is paid significantly more that their counterparts in the private sector (in excess of 20%). In addition, there is persuasive evidence provided by both parties which indicated that the CPI for 2004 and 2005 should be 2% or less. Based on all the above, and with due respect for the Chair's recommendation, I would recommend a wage increase of 2.5% for 2003, 2% for 2004 and 2% for 2005.

With regard to the issue of pay adjustments for the CBSA employees being paid above existing rates of pay, I believe the Employer's approach is sound. At the present time, even though these employees are receiving a pay rate ABOVE that paid for others at the same group and level, the Employer's proposal to give these employees lump sum payments as long as their existing rate exceeds the job rate is a fair and equitable way to handle the situation.

Pierce W. Sutherland
September 26, 2004