FPSLREB Decisions

[1]    By letter of March 3, 2003, the bargaining agent, pursuant to subsection 64(1) of the Public Service Staff Relations Act ("the Act"), requested the establishment of an arbitration board for the bargaining unit described above.

[2]    With its letter, the bargaining agent provided a list of the terms and conditions it wished to refer to the arbitration board and material in support thereof. The letter, the terms and conditions and supporting material are attached hereto as SCHEDULE I.

[3]    By letter of March 14, 2003, the employer submitted a "Notice of Request for the Arbitration of Additional Matters" (section 64(6) of the Act), containing its proposals on the outstanding issues.

[4]    In that letter, the employer raises three preliminary matters, two of which have been resolved by subsequent exchanges of correspondence between the parties and the Board.

[5]    The third preliminary matter raised by the employer concerned a proposal by the bargaining agent regarding the integration of the pay rates into new pay bands attached to a new classification plan of the employer, hereafter referred to as the "UNISON classification plan". The employer submitted that the proposal is beyond the jurisdiction of the arbitration board, insofar as the bargaining agent was seeking a retroactive application of those pay bands. The employer claimed that allowing the arbitration board to make an award imposing retroactive application of the new "UNISON classification pay rates" would have the effect of making a determination on the implementation date of the UNISON classification plan, a matter falling within the realm of exclusive management rights protected by section 7 of the Act, and outside of the arbitration board's jurisdiction by virtue of subsection 69(3) of the Act. The employer's letter is attached hereto as SCHEDULE II.

[6]    By letter dated March 26, 2003, the bargaining agent replied to the employer's objection by stating that the proposal on UNISON did not deal with classification but rather dealt with retroactive application of rates of pay to a classification plan that was in fact, in the bargaining agent's view, implemented as of February 1, 2002. The bargaining agent therefore reiterated that the proposal could properly be placed before the arbitration board. The bargaining agent's letter is attached hereto as SCHEDULE III.

[7]    As contemplated by section 54 of the PSSRB Regulations and Rules of Procedure, 1993, I convened the parties to a hearing for the purpose of clarifying the issue which appears to be at the source of the parties' disagreement as to whether the UNISON classification plan has indeed been implemented by the employer.

[8]    A hearing was held on October 9, 2003, at which time the parties presented evidence, through witnesses and documents, and presented me with their full submissions on the question in dispute.

[9]    In summary, the employer reiterated its claim that the new classification system was not yet "implemented" or "in effect" and that an arbitral award that would impose retroactive rates of pay to the new plan would encroach upon the exclusive right of the employer over classification. This authority, argues the employer, includes determining the effective date of a newly designed classification plan.

[10]    The bargaining agent sought to establish that the new UNISON classification system was in fact "implemented" by the employer and had been so since February of 2002. The only step missing in the implementation process is precisely the determination of the new pay rates and their dates of coming into effect. Both aspects of the proposal are, therefore, in the bargaining agent's submissions, properly before an arbitration board and have nothing to do with the "classification of positions" within the meaning of sections 7 and 69(3) of the Act.

[11]    Having carefully considered the evidence presented at the hearing and the parties' submissions, I am of the view that the employer's objection to the proposal regarding retroactive rates of pay related to the UNISON classification plan is well founded.

[12]    In my view, the issue boils down to whether the employer has made a determination as to whether the UNISON classification plan has become the effective classification standard applicable to the workplace. It is clear that the employer was actively preparing for the imminent implementation of the new plan. For example, employees were given "advanced personal notification" of their new group and level under UNISON, in anticipation of its implementation, which the employer linked to the successful completion of the current round of bargaining. It was also mentioned that staffing processes (e.g. lateral transfers vs. competitions) were determined taking into account the characterization of the transaction in the context of the new classification plan, so as to avoid situations of perceived unfairness where a lateral transfer under the current classification plan could become a promotion under the new standard.

[13]    This does not mean that the plan was in full force and effect. Indeed, the evidence presented by both parties tends to show that it was not and that the employer was waiting until the outcome of the current round of collective bargaining to determine an effective date for its coming into effect.

[14]    The evidence presented at the hearing certainly establishes that the implementation of the UNISON classification plan was an important issue at the bargaining table and that both parties were attempting to finalize the integration of this plan in the workplace by determining new rates of pay, conversion rules and a mutually agreeable date at which these rates would become effective. Unfortunately, the parties were not successful in reaching agreement on these matters.

[15]    There is unavoidably a close relationship between classification and pay. The new classification system can only be operational until such time as the pay rates are determined and the employees "converted" into the new system, and so informed by the employer. However, I am of the view that the determination of a date at which a new classification plan is to become effective, i.e. to become the instrument by which positions are evaluated and given a rank and level for the purpose of paying their incumbents a corresponding salary for their services, is part and parcel of the employer's authority over classification under the Financial Administration Act. That authority is protected as an exclusive management right by section 7 of the Act and is outside of an arbitration board's jurisdiction under subsection 69(3):

. . .

7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

. . .

69(3) No arbitral award shall deal with

(a) the organization of the Public Service or the assignment of duties to, and classification of, positions in the Public Service;

(b) 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; or

(c) any term or condition of employment of employees that was not a subject of negotiation between the parties during the period before arbitration was requested in respect thereof.

(My emphasis)

[16]    It seems clear to me that allowing the arbitration board to deal with a proposal seeking to give retroactive application to rates of pay attached to a new classification plan which the employer has not yet declared to be of full force and effect is tantamount to imposing an effective date of the plan and relates directly to the employer's authority over "classification of positions in the Public Service".

[17]    I am mindful of the fact that the parties have discussed extensively in this round of bargaining the issue of the "UNISON" rates of pay and an effective date of these rates. Nothing in section 7 of the Act prevents these discussions from taking place. However, unlike section 7, subsection 69(3) prescribes a statutory bar to matters that may be referred to an arbitration board.

[18]    For the reasons expressed above, I find that the bargaining agent's proposal regarding wage rates related to the UNISON classification plan would, to the extent that it seeks to have those rates apply retroactively, encroach upon that section.

[19]    As a result, the proposal by the bargaining agent regarding rates of pay and integration into the UNISON rates should be read in a manner consistent with my findings. It should relate to the rates of pay as applied to the current classification of positions of the employer as well as salary rates attached to the UNISON classification plan that would become effective upon the "implementation" (to use the parties' wording in section 33.04 of their collective agreement) of the UNISON plan, as determined by the employer.

[20]    Accordingly, pursuant to section 66 of the Act, and subject to this decision, the matters on which the arbitration board shall render an award are those set out as outstanding in SCHEDULES I, II and III.

[21]    Should any further jurisdictional question arise during the course of your hearing as to the inclusion of a matter in your terms of reference, that question must be submitted forthwith to me because the Chairperson of the Public Service Staff Relations Board is, according to the provisions of subsection 66(1) of the Act, the only person authorized to make such a determination.