FPSLREB Decisions

[1]    By letter of July 2, 2004, the Professional Association of Foreign Service Officers (the bargaining agent), pursuant to section 76 of the Public Service Staff Relations Act (the Act), requested the establishment of a conciliation board for the Foreign Service Officer Group bargaining unit.

[2]    Sections 76 to 90 of the Act apply where conciliation is the method of dispute resolution. The following sections, which set out the procedure for a conciliation board, are of particular interest:

84. Forthwith on the establishment of a conciliation board, the Chairperson shall deliver to the conciliation board a statement setting out the matters on which the board shall report its findings and recommendations to the Chairperson, and the Chairperson may, either before or after the report to him of its findings and recommendations, amend the statement by adding thereto or deleting therefrom any matter the Chairperson deems necessary or advisable in the interest of assisting the parties in reaching agreement.

85. (1) A conciliation board shall, as soon as possible after the receipt by it of the statement referred to in section 84, endeavour to bring about an agreement between the parties in relation to the matters set out in the statement.

  (2) Except as otherwise provided in this Act, a conciliation board may determine its own procedure, but shall give full opportunity to both parties to present evidence and make representations.

  (3) The chairperson of a conciliation board may, after consultation with the other members of the board, fix the times and places of its sittings and shall notify the parties of the times and places so fixed.

  (4) The chairperson of a conciliation board and one other member constitute a quorum, but in the absence of a member at any sitting of the board the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.

  (5) A decision of a majority of the members of a conciliation board on any matter referred to it is a decision of the board thereon.

  (6) The chairperson of a conciliation board shall forward to the Chairperson a detailed statement signed by him of the sittings of the conciliation board and of the members and witnesses present at each sitting.

86. A conciliation board has all the powers of the Board set out in paragraphs 25( a) to ( e) and, in addition, may authorize any person to exercise any of the powers of the conciliation board as set out in paragraphs 25( b) to ( e) and may require the person to report to the conciliation board thereon.

87. (1) A conciliation board shall, within fourteen days after the receipt by it of the statement referred to in section 84, or within such longer period as may be agreed on by the parties or determined by the Chairperson, report its findings and recommendations to the Chairperson.

  (2) Subsection 57(2)¹ applies, with such modifications as the circumstances require, in relation to a recommendation in a report of a conciliation board.

  (3) No report of a conciliation board shall contain any recommendation concerning the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, deployment, lay-off or termination of employment, other than by way of disciplinary action, of employees.

  (4) After a conciliation board has reported to the Chairperson its findings and recommendations on the matters set out in the statement referred to in section 84, the Chairperson may direct it to reconsider and clarify or amplify its report or any part thereof, or to consider and report on any matter added to the statement pursuant to that section.

  (5) Where the conciliation board is directed under subsection (4) to reconsider its report or consider an added matter, the report shall be deemed to have been received by the Chairperson notwithstanding that the reconsidered report or the report on the added matter has not been received by the Chairperson.

[3]    With its letter of July 2, 2004, the bargaining agent provided a list of the terms and conditions of employment that it wished to have referred to the conciliation board. That letter, the terms and conditions of employment and supporting material are attached hereto as Schedule I.

[4]    By letter dated July 7, 2004, the Public Service Staff Relations Board (PSSRB) wrote to the Treasury Board (the employer), enclosing a copy of the request of the bargaining agent, along with a copy of the terms and conditions of employment the bargaining agent wished to be referred to conciliation. The PSSRB requested the employer to submit a written reply to the bargaining agent's request, together with any additional matters it wished to submit to the conciliation board.

[5]    By letter of July 14, 2004, the Treasury Board provided additional terms and conditions of employment that it wished to have referred to the conciliation board. The employer also responded that it opposed the inclusion of three outstanding issues: Article 42 - Employee Performance Reviews and Employee Files, Article 46 - Pay Administration and the proposal entitled Proposed New FS Classification Standard. The employer requested that the PSSRB exclude the above-noted issues from the Terms of Reference and add the additional issues proposed by it. That letter, the terms and conditions of employment and supporting material are attached hereto as Schedule II.

[6]    With respect to the proposal identified as Article 42, Employee Performance Reviews and Employee Files, the bargaining agent's proposal reads as follows:

Article 42

Employee Performance Reviews and Employee Files

42.01 For the purpose of this Article,

(a)	a formal assessment and/or appraisal of an employee's performance means a written assessment and/or appraisal by the supervisor of how well the employee has performed the employee's assigned tasks during a specified period in the past;
(b)	formal assessment and/or appraisals of employee performance shall be recorded in a form prescribed by the Employer for this purpose.

42.02 Prior to an employee performance review the following shall be made available to the employee:

(a)	the evaluation form which will be used for the review;
(b)	any written document which provides instructions to the person conducting the review;
(c)	if, during the employee performance review, either the form or instruction have changed they shall be given to the employee.

42.03

(a)

At the beginning of an employee's assignment and annually thereafter, the manager in consultation with the employee, will establish the employee's objectives for the year. The manager will conduct a mid term review with the employee to ensure successful completion of the objectives that were set.

(b)

If during an employee's assignment a concern arises with respect to the employee's performance, the Employer will bring those concerns to the attention of the employee in a timely manner. The employee shall be given a reasonable opportunity to bring the performance up to satisfactory level before any decision is taken to reassign the employee to another position or otherwise end the employee's assignment. Notwithstanding the above an employees (sic) assignment may be terminated for breaches of the department's code of conduct.

42.04

(a)	When a formal assessment of an employee's performance is made, the employee concerned must be given an opportunity to sign the assessment form in question upon its completion to indicate that its contents have been read. An employees' signature on the assessment form shall be considered to be an indication only that its contents have been read and shall not indicate the employee's concurrence with the statements contained on the form.
	The employee shall be provided with a copy of the assessment at the time that the assessment is signed by the employee.
(b)	The Employer's representative(s) who assesses an employee's performance must have observed or been aware of the employee's performance for at least one-half (1/2) of the period for which the employee's performance is evaluated.
(c)	When an employee disagrees with the assessment and/or the appraisal of his work, he shall have the right to present written counter arguments to the manager(s) or committees) responsible for the assessment and/or appraisal. An employee has the right to make written comments to be attached to the performance review form.

42.05 Upon written request of an employee, the personnel file of that employee shall be made available once per year for the employee's examination in the presence of an authorized representative of the Employer.

[7]    The employer argues that this proposal is not a matter which can be included in the conciliation board's Terms of Reference as it deals with matters that are specified in subsection 87(3) of the Act.

[8]    The employer objected to only two of the sub-clauses put forth by the bargaining agent with respect to Article 46 - Pay Administration. Specifically, it objected to the inclusion of sub-clauses 46.05 and New 46.07. Both of these proposed sub-clauses read as follows:

46.05 FSDP

(c)	Amend to provide for a one year probationary period. Competencies for successful completion of the program need to be discussed to reflect a more realistic approach.

New 46.07

An FS employee assigned to a higher level position who is subsequently assigned to a lower classification level but higher than his/her substantive classification level, without resuming the duties of his substantive position, shall be paid a rate of pay which is equal to but not less than the rate the employee was receiving in the higher level position. If no such rate exists the employee will be paid at the maximum rate of pay for the lower level position. Future salary increases while in the acting position will be in accordance with the EX Group Salary Administration Plan.

[9]    The employer argues that the "bargaining agent's proposal with respect to sub-clause 46.05 is not a matter that can be included in the Conciliation Board's Terms of Reference as it deals with matters that are specified in subsections 57(2) and 87(3) of the PSSRA". It also objects to the inclusion of the sub-clause identified as New 46.07 as it "purports to apply to employees who are not members of the FS bargaining unit".

[10]    Finally, with respect to the bargaining agent's proposals regarding the new FS Classification Standard, the bargaining agent's proposal reads as follows:

Re Proposed new FS Classification Standard

If the employer intends to introduce a new classification standard during the term of this revised agreement, PAFSO has advised the employer of its position on this matter, specifically this includes:

1. Negotiate the rating factors to be used to access positions in the FS Group.

2. Negotiate the number of positions at each level and the number of levels in the new standard.

3. Negotiate a classification grievance process that will provide for the adjudication of classification grievances by an independent third party such as the PSSRB.

4. Negotiate the FS group definition.

5. Negotiate the conversion rules for all FS employees converted to the new standard, where necessary providing full salary protection.

6. Negotiate the length of the FSDP and performance assessment factors for graduation.

7. Negotiate the implementation date of the new standard and the rates of pay for each level.

[11]    The employer argues that the essence of the bargaining agent's proposal relates to the classification of positions and is therefore in violation of section 7 of the Act. The employer stated, in its letter dated July 14, 2004, that it had shared information with the bargaining agent with respect to the development of a new classification standard and was prepared to discuss the compensation matters which would arise out of the introduction of a new classification standard. However, it had also, on numerous occasions, clearly indicated to the bargaining agent that it was opposed to bargaining this matter. The employer also argues that the inclusion of these proposals in the Terms of Reference of the conciliation board would not be in the interest of assisting the parties in reaching an agreement as specified in section 84 of the Act. With respect to the specific proposals put forth by the bargaining agent, the employer argued as follows:

1. The bargaining agent's proposal with respect to paragraph 1 deals with matters that are specified in sections 7 and 57(2) of the Act.

2. The bargaining agent's proposal with respect to paragraph 3 deals with matters that fall outside the scope of section 92 of the Act.

3. The bargaining agent's proposals with respect to paragraphs 5 and 7 are ambiguous and could be interpreted to deal with matters that are specified in sections 7, 57(2) and 87(3) of the Act.

4. The bargaining agent's proposal with respect to paragraph 6 deals with matters that are not a matter that can be included in the conciliation board's Terms of Reference as it deals with matters that are specified in sections 57(2) and 87(3) of the Act.

[12]    The employer made no specific comment regarding the substance of paragraphs 2 and 4 of the bargaining agent's proposal on classification. The employer therefore requests that the Board exclude the above-referenced issues from the Terms of Reference for the conciliation board.

[13]    On July 16, 2004, the PSSRB wrote to the bargaining agent, enclosing a copy of the letter from the employer dated July 14, 2004 (Schedule II), and requested that the bargaining agent communicate its position on the matter. The bargaining agent responded by letter dated July 27, 2004, indicating that it considered the matters in issue to be matters that were legitimately the subject of collective bargaining. That letter is attached hereto as Schedule III.

[14]    With respect to the employer's objection regarding Article 42 - Employee Performance Reviews and Employee Files, the bargaining agent argues that the proposal is very similar to the language that appears in most public service collective agreements and is not an attempt to negotiate "standards, procedures or processes" governing the list of topics enumerated in subsection 87(3). Included in its letter was a full citation of similar collective agreement provisions taken from Article 41 of the Applied Science & Engineering Group, Article 38 of the Computer Systems Administration Group and Article 40 of the Audit, Commerce & Purchasing Group.

[15]    With respect to the employer's claims regarding the proposal entitled Article 46 - Pay Administration, the bargaining agent responded that the "discussion surrounding this proposal did not focus on 'probation' rather it focused on the current length of the developmental program (which currently is 5 years, the TBS has a proposal to drop it to 3 years and the PAFSO proposed (sic) is to reduce it to one year) and the need for meaningful consultation on a review of the program. The specific use of the word probation was a misnomer."

[16]    Finally, with respect to the proposal on the new FS classification standard, the bargaining agent responded that "in essence PAFSO is seeking to negotiate the proposed new FS classification standard including a meaningful 3rd party grievance procedure and provisions which will govern how and where the current employees will fit into the new system." The bargaining agent states that when the Treasury Board Secretariat announced that it was not proceeding with the implementation of the Universal Classification Standard, it decided to review and develop single classification standards instead. The three groups initially chosen were the FS, ES and PA bargaining units. According to the bargaining agent, the development of the new FS standard, together with rates of pay attached to that standard, is the single most important issue facing the FS group in decades.

[17]    The bargaining agent also points out that this is not the first time that a bargaining agent has sought to negotiate a classification standard or provide for a separate grievance procedure or negotiate provisions which govern how and where current employees will fit into the new standard. The bargaining agent referred to a decision by Chairperson Tarte dated November 6, 1998 (Board file no. 190-2-267 to 280), and in particular to page 8 of the decision where the following quotation appears:

These two decisions of the Federal Court of Appeal have established that proposals which fall within section 7 of the PSSRA can nonetheless be made legitimate subject of bargaining. In light of these pronouncements, I believe that such proposals can be referred to a conciliation board which only has the authority to make recommendations which are binding on neither party. Furthermore, I am mindful of the fact that since the issuance of these decisions of the Federal Court of Appeal, the Chairperson of the Public Service Staff Relations Board has consistently referred proposal to the conciliation board where the only objection raised by the employer was that they violated the prohibitions contained in section 7. I believe that my conclusion applies equally to paragraph 5 of the proposal on the Universal Classification Standard. Even if the conciliation board makes a recommendation based on paragraph 5, it still remains a non-binding recommendation. In light of my conclusion on the employer's objections based on section 7, I do not believe it is necessary for me to determine whether the third disputed proposal relates to the assignment of duties to persons rather than to positions.

In conclusion, for reasons I have indicated I find that the three disputed proposals referred to in this document are included in your terms of reference.

According to the bargaining agent, this decision is the most recent decision issued by the PSSRB on this issue.

[18]    The bargaining agent further argues that its proposal to negotiate the rating factors, outlined in paragraph 1 of its proposal, will not require an amendment to section 7 of the Act and is therefore not in violation with the prohibition contained in subsection 57(2) of the Act. The bargaining agent claims that this issue was addressed in the above-referenced decision issued by Chairperson Tarte. According to the bargaining agent, the employer is free to negotiate away its management rights and a conciliation board is free to make recommendations on proposals that may have an impact on those rights.

[19]    Regarding the employer's objection to paragraph 3 of the proposal regarding classification, the bargaining agent once again cites the above-referenced decision by Chairperson Tarte and points out that a similar proposal to the one currently under consideration was included in the Terms of Reference of that conciliation board.

[20]    With regard to the employer's claim that paragraphs 5 and 7 of the proposal regarding classification were ambiguous, the bargaining agent responded that the employer clearly understood the bargaining agent's position on these issues. According to the submissions received from the bargaining agent, the employer had been advised that in the event it was to introduce a new FS classification standard, it was incumbent on it, in the eyes of the bargaining agent, to table a proposal on where and how employees would be converted to the new standard, as well as a proposal on salary protection. The bargaining agent alleges that the Treasury Board Secretariat has refused to table such a position in spite of the fact that senior departmental officials have been advising their employees that such a proposal would be forthcoming during negotiations. The Treasury Board Secretariat has also, according to the bargaining agent, refused to table a proposal on the rates of pay in this new structure, despite the fact that it proposes to increase the current number of levels from one to four. While the employer submissions to the Board show this as an outstanding issue, the bargaining agent alleges that the employer's negotiator has never discussed the proposed four-level structure or rates of pay during negotiations. As the issues are directly tied to pay, the bargaining agent claims that they can be part of a conciliation board's Terms of Reference.

[21]    Lastly, with regard to paragraph 6 of the proposal regarding the classification standard, the bargaining agent responds that it has made it clear to the employer that it is concerned about the length of the Foreign Service Development Plan and wishes to have it reduced. According to the bargaining agent, this issue does not have an impact on either of the sections of the Act referred to by the employer. Negotiating the length of this program would not require legislative change, nor is such a proposal prohibited from inclusion in the Terms of Reference by operation of section 87(3) of the Act. With respect to the second half of the proposal relating to performance assessment factors required for graduation, the bargaining agent argues that it is seeking to co-develop these factors, in keeping with the principles proposed in the Public Service Modernization Act.

[22]    The PSSRB, by letter dated July 29, 2004, forwarded a copy of the bargaining agent's submissions to the employer and advised the parties that they would be further notified in due course.

Decision regarding Article 42 - Employee Performance Reviews

[23]    The employer objects to the inclusion of the above-referenced proposal on the basis that it deals with matters specified in subsection 87(3) of the Act. This subsection reads as follows:

   (3) No report of a conciliation board shall contain any recommendation concerning the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, deployment, lay-off or termination of employment, other than by way of disciplinary action, of employees.

[24]    The bargaining agent, on the other hand, argues that the proposal it has put forward is very similar to language which already appears in several other collective agreements in the federal public service and is not an attempt to negotiate standards, procedures or processes.

[25]    The bargaining agent is quite right in pointing out that this issue has been negotiated previously with other bargaining agents and is the subject of collective agreement provisions in a variety of collective agreements. In taking a purposive approach to the interpretation of subsection 87(3), I find that the intent of the subsection is to keep within the employer's sole purview the power or ability to appraise its employees. In other words, the intent of this section is to grant to the employer exclusive domain over the official or formal assessment of an employee's strengths and weaknesses. The proposed article leaves the appraisal of an employee's performance entirely to the discretion of the employer, and I see no reason why it should not be included in the Terms of Reference of the conciliation board.

Decision on Article 46 - Pay Administration

[26]    The employer objected to the inclusion of two sub-clauses proposed by the bargaining agent on the basis that they deal with matters that are specified in subsections 57(2) and 87(3) of the Act. I have already reproduced subsection 87(3) above in paragraph 23. Subsection 57(2) reads as follows:

   (2) No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment,

a)	the alteration or elimination or the establishment of which would require or have the effect of requiring the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for its implementation; or
b)	that has been or may be established pursuant to any Act specified in Schedule II.

[27]    The employer also claims that the sub-clause identified as New 46.07 cannot be included in the Terms of Reference, as it purports to apply to employees who are not members of the FS bargaining unit. The bargaining agent responded that the use of the word "probation" in the proposal was a misnomer and only referred to the length of the development program. The bargaining agent made no comment with respect to the employer's argument regarding the proposal entitled New 46.07.

[28]    The proposed Article 46.05 provides for two things: first, that the time period for successful completion of the FSDP be reduced and second, that the competencies necessary for successful completion of the program "need to be discussed to reflect a more realistic approach". Although the wording of the article, as proposed by the bargaining agent, includes the term "probationary period", the bargaining agent has subsequently clarified its intention with respect to its proposal and has confirmed that the use of this term is a "misnomer". Given this, I see no impediment to including the first phrase in sub-clause 46.05(c) in the Terms of Reference of the conciliation board. However, with respect to the second phrase regarding the competencies needed for successful completion of the developmental program, I find that the inclusion of the sub-clause does constitute a violation of subsection 87(3) of the Act and cannot, therefore, be included in the Terms of Reference of the conciliation board, given that it deals directly with the standards to be applied to govern the appraisal of employees within the bargaining unit.

[29]    As for the proposal entitled New 46.07 and the employer's objection, I find that this article can only apply to employees who are part of the FS bargaining unit. It is clear that the FS collective agreement cannot purport to govern the terms and conditions of employment of employees who fall within the scope of other collective agreements. Therefore, by way of example, should an FS employee become subject to the terms and conditions of another collective agreement, the terms and conditions as set out in the New 46.07 will not apply to him or her. The proposed article, when properly applied, constitutes nothing more than an acting pay article and is therefore clearly negotiable. I therefore find that, in light of what I have said above, the article entitled New 46.07 is properly within the jurisdiction of a conciliation board and will be included in the Terms of Reference.

Decision regarding New FS Classification Standard

[30]    The employer argues that the bargaining agent's proposal regarding the above-referenced matter is in violation of section 7 of the Act and objects to specific subsections of the proposal on the basis of sections 7, 57(2), 87(3) and 92 of the Act and further claims that they should be excluded from the Terms of Reference, given the operation of section 84 of the Act.

[31]    The bargaining agent has acknowledged that, in essence, it is seeking to negotiate the proposed new FS classification standard, including the inclusion of what it refers to as a meaningful 3rd party grievance procedure and provisions on how and where the current employees will fit into the new system. It points out that this is not the first time that a bargaining agent has sought to negotiate such matters and has provided a Board decision in support of its position that such matters can be included in Terms of Reference. The bargaining agent further argues that paragraphs 1 and 6 of its proposal will not require an amendment to section 7 of the Act and is therefore not in violation of subsections 57(2) and 87(3) of the Act. According to the bargaining agent, section 7 of the Act is akin to a management rights clause, and management is perfectly free to negotiate away its management rights and a conciliation board is free to make recommendations on proposals that may have an impact on those rights. The bargaining agent denies management's allegation that its proposal on classification is ambiguous with regard to paragraphs 5 and 7. It also argues that since the issues are directly tied to pay, they can be part of a conciliation board's Terms of Reference. Lastly, the bargaining agent argues that its proposal with respect to performance assessment factors required for graduation are in keeping with the emphasis on co-development to be found in the Public Service Modernization Act.

[32]    The employer's objection to the inclusion of this proposal on the basis of section 7 of the Act is well founded. Even the bargaining agent has acknowledged this fact in admitting that by this proposal it seeks to negotiate the proposed new FS classification standard with the employer. However, this is not the end of the matter. The Board has consistently held that, because a conciliation board only has the authority to make non-binding recommendations, proposals which fall within section 7 of the Act can be referred to a conciliation board: Education Group Terms of Reference (Board file No. 190-2-154) and PSAC Treasury Board Table II bargaining units Terms of Reference (Board file No. 190-2-267 to 280). There is, however, no obligation on the Board's part to do so and it is within my jurisdiction to decline to do so on the basis of section 84 of the Act.

[33]    I agree with the bargaining agent that, in keeping with the spirit of the Public Service Modernization Act, the discussion outlined in the bargaining agent's proposal needs to take place openly and in a timely manner. Such a discussion on the issue of implementation is necessary in order to foster good labour relations between the parties. However, I am also of the opinion that including this proposal in the Terms of Reference would do more harm than good to the negotiating process, and I therefore exercise my discretion under section 84 in deleting this matter from the Terms of Reference. While the Board has, as the bargaining agent points out, consistently referred proposals on classification to conciliation boards where the employer's only objection to the proposal was based on section 7, this situation is different since the employer has also based its objection on sections 57(2), 87(3) and 92 of the Act. I find that some of the employer's objections to certain of the paragraphs contained in the bargaining agent's proposal are valid, meaning that they cannot, by operation of statute, be included in the Terms of Reference of the conciliation board. As for the other remaining paragraphs, I have, as outlined above, decided that it would be in the interests of the parties that I exercise my discretion under section 84 of the Act and delete the proposal as a whole from the Terms of Reference.

[34]    Accordingly, for further clarity and pursuant to section 84 of the Act, the matters on which the conciliation board shall report its findings and recommendations to me in this dispute are those set out in Schedule I and Schedule II, attached hereto, with the exception of the second phrase to the proposal on Article 46.05 ("Competencies for successful completion of the program need to be discussed to reflect a more realistic approach."), and with the exception of the proposal entitled Re Proposed New FS Classification Standard.

[35]    Should any jurisdictional question arise during the course of the hearing as to the inclusion of a matter in these Terms of Reference, that question must be submitted forthwith to the Chairperson of the Public Service Staff Relations Board who is, according to the provisions of section 84 of the Act, the only person authorized to make such a determination.

Joseph Potter,
Vice-Chairperson

DATED AT OTTAWA, September 30, 2004.

¹      57. (2) No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment,
      (a) the alteration or elimination or the establishment of which would require or have the effect of requiring the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating moneys required for its implementation; or
      (b) that has been or may be established pursuant to any Act specified in Schedule II.