FPSLREB Decisions

I. Application before the Board

1 Between September 21 and 25, 2007, the Public Service Alliance of Canada (“the applicant”) filed four separate applications under subsection 123(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”) relating to matters that may be included in an essential services agreement (ESA) covering positions in the Program and Administrative Services (PA) Group for which the Treasury Board is the employer (hereafter “the respondent”).

2 The four applications (PSLRB File Nos. 593-02-03 and 06 to 08) dealt with positions in the PA Group at, respectively, the Correctional Service of Canada (CSC), the Canada Border Services Agency (CBSA), the Department of Human Resources and Skills Development (HRSDC), and Service Canada, an entity within the HRSDC.

3 On November 16, 2007, the applicant requested that the Public Service Labour Relations Board (“the Board”) consolidate the four applications into one file and that the Board expand the file “… to include the entire PA bargaining unit at Treasury Board.” The respondent indicated to the Board on November 26, 2007 that it agreed with the applicant’s request. On December 5, 2007, the Chairperson of the Board granted the applicant’s request. The Board closed File Nos. 593-02-06 to 08 and consolidated all matters related to the ESA for the PA group under File No. 593-02-03.

4 After consolidating the application, the Board held it in abeyance for almost a year while the parties tried to resolve the outstanding matters, at times with the assistance of mediators appointed by the Board. The Vice-Chairperson then appointed me as a panel of the Board to hear and determine the issues that remained in dispute following mediation.

5 At a pre-hearing conference convened on January 9, 2009, the parties briefed the Board on the status of their discussions. The Board learned that the respondent proposed approximately 25 000 positions in the PA Group as necessary for it to provide essential services. As of the date of the pre-hearing conference, the parties had reached agreement on the status of about one-third of those positions. Subject to final approval by the parties, they had completely resolved essential services issues for well over half of the departments and agencies that employ members of the bargaining unit. Several of the largest employing departments, however, were among the organizations where the parties had achieved less progress, thus accounting for the large number of positions still in dispute. Notably, the list of organizations having substantial matters in dispute include the CSC, the CBSA, the HRSDC and its Service Canada initiative, and the Department of National Defence.

6 This first decision in what the Board anticipates will be a series of rulings on matters that may be included in the ESA for the PA Group considers an aspect of the situation at Service Canada. The following question is before the Board:

What services delivered by, or activities performed by, a PM-01 Citizen Services Officer (CSO) at a Service Canada Centre (SCC) are necessary for the safety or security of the public?

Because the Citizen Service Officer (CSO) role accounts for approximately 1145 positions proposed as essential by the respondent, the Board considered it to be a good starting point for these proceedings.

7 To provide context for the required analysis, the Board asked the respondent to depict the role played by a CSO in the setting of a real Service Canada Centre (SCC). The respondent chose the example of the Ottawa West SCC for the hearing.

8 A new collective agreement for the PA Group came into force on January 23, 2009. The Board confirmed that it continues to have jurisdiction to consider an application under subsection 123(1) of the Act once a new collective agreement is in force in Public Service Alliance of Canada v. Treasury Board (Border Services, Program and Administrative Services and Operational Groups), 2009 PSLRB 37.

II. Summary of the evidence

9 The respondent presented evidence through the following four witnesses, all of whom work for Service Canada: Denis Boulianne, Associate Executive Director, Quebec Region, currently Acting Executive Director of Strategic Services; Sharon Shanks, Director General, Payments and Processing, Canada Pension Plan/Old Age Security, Operations Branch; Sonja Adcock, Director, Employment Insurance Automation Initiatives, Operations Branch; and Evelyne Power-Reid, Area Director, Eastern Ontario.

10 Mr. Boulianne was the only witness for the respondent who indicated that he had been involved in local ESA negotiations with the applicant’s representatives. He testified that the respondent approached those negotiations by taking for granted that certain programs were considered essential. For the purpose of this case, the respondent considers that the essential programs associated with the CSO position are Employment Insurance (EI), Canada Pension Plan (CPP) and Old Age Security (OAS)/Guaranteed Income Supplement (GIS).

11 The respondent provided an overview of the EI, CPP and OAS/GIS programs (Exhibits HRSDC-SC-E-1 and 2), each of which is a major component of the national income security system for Canadians.

12 The EI program provides regular benefits in the form of temporary financial assistance to unemployed Canadians while they look for work or upgrade their skills. The EI program also provides special benefits in a range of other situations; for example, to Canadians who are sick, pregnant or who are caring for a newborn or adopted child or for a family member who is seriously ill with a significant risk of death. The EI program supplements the earnings of certain low-income families with children, provides income protection for self-employed fishers and offers benefits to certain individuals residing outside Canada where their jobs are insured under the program (HRSDC-SC-E-2). With medical certification, the EI program also offers temporary income support to persons attending family members who are gravely ill or at risk of death for up to six weeks in the form of compassionate-care benefits.

13 The CPP program provides retirement pensions to eligible contributors and associated death, survivor and children’s benefits. The CPP also administers Canada’s largest long-term disability plan that pays monthly benefits to eligible contributors with a disability and to their children. The plan also supports some vocational rehabilitation services to assist beneficiaries to return to work (HRSDC-SC-E-2).

14 The OAS program pays a monthly pension to all Canadians aged 65 and over and some supplementary benefits to eligible low-income seniors aged 60 and over. For Canadians who have little or no other income, the program provides additional income support in the form of monthly GIS payments (HRSDC-SC-E-2).

15 During fiscal year 2007-2008, Service Canada handled almost 10.3 million transactions for its clients, of which 6 percent (655 134) involved the CPP and OAS programs and 56 percent (5 721 490) involved the EI program (HRSDC-SC-E-9). An average of 2.6 million Canadians annually draw benefits totalling close to $12 billion from the EI program. As of November 2008, almost 3.6 million Canadians received CPP retirement pensions with another 1.5 million Canadians drawing CPP disability, survivor and death benefits. Over 4.5 million Canadians received OAS payments and an additional 1.6 million persons received the GIS (HRSDC-SC-E-11).

16 Canadians interact with Service Canada by mail, telephone and the Internet and in person. Online transactions have increasingly become the primary service delivery channel for Service Canada. It has successfully promoted its online access tools to Canadians, large numbers of whom now initiate EI, CP and OAS/GIS transactions either on private computers or by using terminals available at SCCs. In the case of the EI program, for example, now almost 98 percent of clients now use the Internet to apply for benefits. Approximately 30 percent of those applicants do so at workstations located at SCCs.

17 Once in receipt of payments after completing the application process, clients continue to use the in-person services offered at SCCs for various purposes. For example, they visit SCCs to report changes in their contact details, changes in personal status (marriage, divorce, separation, death of a spouse, change in dependants, change in custody arrangements, etc.), and changes in their income that may affect benefit entitlements. They use SCC service channels to address any problems with payments, to provide medical information in ongoing disability cases or to file biweekly work availability and income reports to confirm continuing entitlement for EI benefits.

18 For a certain number of clients, there remain compelling reasons for dealing with Service Canada staff in person. Through its “In-person Service Experience Model” (Exhibit HRSDC-SC-E-4), Service Canada aims to improve the effectiveness and efficiency of its “in-person-channel” and, where appropriate, to use personal contacts to help clients use online tools in the future. Nevertheless, some EI, CPP and OAS/GIS “service offerings” will continue to be transacted primarily or exclusively in person, without accessing online tools, whether due to the nature of the service requirement or to a client’s preference.

19 CSO positions comprise a critical component of the “in-person channel” for the delivery of EI, CPP and OAS/GIS programs. CSOs encounter clients personally at over 600 point-of-service sites across Canada, including 330 SCCs and 211 “scheduled outreach sites” (Exhibits HRSDC-SC-E-5 and 9). They deal both with clients who require personal assistance at all stages of their transactions and those who are able, with assistance, to complete their business online at the service site or subsequently elsewhere. The September 2008 generic work description for the CSO position (Exhibit HRSDC-SC-E-7) describes its key activities as follows:

• Responds to questions from clients on service offerings and provides value added information, advice and guidance on program and service requirements.
• May travel to offer regular or occasional outreach to closed or isolated remote locations.
• Conducts fact-finding with clients, assesses and decides on which service offerings and/or information to provide, including other federal, provincial, municipal governments and other community organization services/benefits. Determines the need for more in-depth intervention by program/service specialists.
• Provides guidance on the use of the Department’s and partner’s navigation and self-service tools; responds to common questions on the capability of electronic service channels; provides assistance with electronic exchanges; and promotes and encourages citizens to access and use these electronic service channels.
• Verifies and authenticates client identity and/or supporting documentation; receives and processes fees for service and other payments; and processes and generates certificates, permits and similar documents for other service offerings within established guidelines.
• Receives and processes requests from clients to change information; clarifies discrepancies; and amends the database(s) or refers information to partners accordingly.
• Receives, screens and forwards applications and supporting documentation on behalf of the Department and its partners; and explains where and how the client can follow-up on the status of their requests.
• Administers oaths, and takes and receives affidavits, declarations and affirmations.

20 As detailed in the work description and in the “In-person Service Experience Model,” CSOs greet clients when they visit Service Canada facilities, identify the type of service they require and advise them on the processes to follow. They work with clients to ensure that their applications are complete, and they receive, validate and certify documents that are required to support or substantiate client applications. Where possible, CSOs identify barriers that prevent clients from serving themselves online, either at home or on-site, and help clients overcome those barriers. Some service interactions involve only a single visit. In other situations, clients may return to the SCC or to another service delivery site on multiple occasions.

21 CSOs are encouraged to explore with clients whether they are entitled to other benefits with the goal of linking them to the appropriate services — including services under other federal programs or provided by other levels of government. CSOs also define situations where special information or expertise may be required, and they take the necessary steps to link a client to that information and expertise. In that and other senses, Service Canada views CSOs as “enablers” and as the “connection” between the client and the government. At the end of an interaction, CSOs pass applications on to processing staff, and their involvement with the client normally ends. CSOs only perform in-person service functions. They do not evaluate claims or make decisions about entitlements. If processing staff determine that further information or documents are required for an application, they may contact the client directly by telephone or mail. CSOs are only involved when applicants subsequently bring to a Service Canada facility what they have been asked to provide by processing staff.

22 The target turnaround time for applications varies by the type of service. In the case of properly completed initial EI applications, for example, Service Canada aims to pay claimants within 28 days in 80 percent of cases. In the other 20 percent of cases, there is often some difficulty with the application that has been identified by processing staff. CSOs become involved if the applicant visits a Service Canada site in person with follow-up information or documents.

23 SCCs and scheduled outreach sites are located to ensure that 90 percent of Canadians have access to a service delivery location within 50 kilometres of their residences. The Ottawa West SCC is a relatively typical example of an SCC in an urban setting. The staff complement includes 14 CSOs. On average, a CSO may see 40 to 65 clients per day. Of the total of 78 841 service offerings at that location in fiscal year 2007-2008, 4 percent involved CPP and OAS transactions while 58 percent dealt with EI transactions. Together, service offerings for the EI, CPP and OAS/GIS programs consumed 83 percent of the staff’s time during a four-month sample period in that fiscal year (Exhibit HRSDC-SC-E-6).

24 Ms. Power-Reid testified that most clients who come to the Ottawa West SCC need personal assistance to overcome barriers. She and other witnesses identified problems experienced by clients in overcoming language, literacy or numeracy barriers, because of a disability or because of a prior history of problems securing services. Many entitled recipients are unable to use computers. Some clients are in emotional distress or shock because of difficult life circumstances such as a bereavement in the family or the recent loss of employment. Other clients may suffer from debilitating or terminal illnesses.

25 In some situations, CSOs help clients with “dire needs” request emergency payments. The role of the CSO in those cases is to analyze the circumstances of the request, to deal immediately with documentation issues to the extent possible and to contact the processing centre as appropriate to expedite approval. CSOs may also direct persons with “dire needs” to other non-federal options for emergency support.

26 Some clients visit SCCs to secure personal reassurance or to confirm that their applications are complete, because they believe that visiting an SCC will speed up the application process, because they do not wish to mail certain documents or simply because they prefer personal interaction to other service delivery modes.

27 Ms. Shanks confirmed in cross-examination that some clients who visit SCCs are able to obtain the services they require through other service channels. Nonetheless, she maintained that not all clients can be helped through alternate service delivery channels. In some cases, Ms. Shanks said that “… we are talking about some of the most vulnerable in society.”

28 Asked what the impact would be if no CSOs were available during a strike, Ms. Power-Reid stated that 90 percent of the clients who visit the Ottawa West SCC about EI claims have an issue or a barrier that prevents them from using other channels without assistance, or at all. Only 10 percent of EI clients that visit use the workstations without the help of staff. For the applicants who do need assistance, the absence of CSOs would cause delays in processing their claims that could cause significant economic hardship.

29 In cross-examination, Ms. Power-Reid confirmed her view that the 90 percent of EI clients who visit the Ottawa West SCC would not receive benefits if a CSO were unavailable to provide assistance. Some of those clients visit SCCs to follow up on requests made of them by processing staff. She agreed with the applicant that, given the average volume of 300 visitors per day, on the order of 140 persons require CSO assistance on a typical day. Of that number, some clients will complete their transactions using the on-site computers on their own; others will complete the process with a CSO sitting with them.

30 The applicant did not call any witnesses.

III. Summary of the arguments

A. For the respondent

31 The respondent takes the position that the EI, CPP and OAS/GIS programs in their entirety comprise essential services within the meaning of the Act. This case focuses on the portion of those essential services delivered under Service Canada’s in-person service model by CSOs at services centres across the country.

32 The CSO is the key enabler who links entitled recipients to statutory benefits. In the respondent’s submission, all aspects of the in-person service activities of CSOs that relate to the EI, CPP and OAS/GIS programs are necessary to provide for the safety or security of the public. The absence of a CSO at an SCC poses a probability or a rational possibility of a risk to public safety or security.

33 The issue that the Board must determine is narrow. On the assumption that the EI, CPP and OAS/GIS programs fall within the meaning of an essential service under subsection 4(1) of the Act, is the CSO position a “type of position” that is necessary for the employer to provide essential services? The respondent invites the Board to declare that all aspects of the delivery of the three programs are essential or that, alternatively, the three programs are themselves essential and that the CSO position is a “type of position” that is necessary for the employer to provide essential services.

34 The respondent submits that, if only one person were to go to an SCC during a strike and be unable to access a benefit because of the absence of a CSO, it would constitute a situation involving a safety or security risk to the public. Although Ms. Adcock’s testimony indicated that a program such as the EI is now largely automated, it remains the case that many individuals visit SCCs to effect their EI transactions. Those persons who encounter a CSO in the “self-serve zone” performing a triage function comprise a “public” that requires an essential service that is necessary for their safety or security. The “public” in this case is the community of potential or eligible recipients who access benefits through SCCs. (The applicant stipulated that persons seeking entitlements are members of the public.)

35 The Board should adopt a broad and liberal interpretation of the notion of “necessity” in determining essential services. It should ask whether the services provided by a CSO fulfill needs of the clients who visit an SCC. The respondent asserts that CSOs are necessary for the employer to deliver essential services needed by clients. As stipulated by the Act, the employer does not need to change the way it conducts its business, consider using other persons to deliver the services or resort to other methods of achieving the same result.

36 The witnesses provided ample evidence of what CSOs do, illustrated particularly by the document depicting the In-person Service Experience Model (Exhibit HRSDC-SC-E-4), the narrative description of essential in-person services (Exhibit HRSDC-SC-E-5) and the CSO work description (Exhibit HRSDC-SC-E-7). All of the “key activities” outlined in those documents enable a client to access a benefit.

37 The fact that CSOs do not approve applications does not make the services they provide any less essential.

38 The respondent referred the Board in detail to the decision in Public Service Alliance of Canada v. Treasury Board (Data Processing Group), PSSRB File No. 181-02-116 (19800528) (“Data Processing Group”). That decision dealt with the same subject matter that, among others, is now before the Board. As the core programs discussed in the decision have not changed in essence since 1980, its findings remain instructive and compelling. The Board wrote as follows:

…

33. After some considerable soul searching the Board has embraced a different formula designed for the purpose of trying to ensure that the dependent recipients of the programs concerned will continue to receive the payments to which they are entitled in the event of a strike. It is a formula that is both pragmatic and falls within the Board's authority and discretion. We have assessed each of the programs and have made e [sic] decision as to whether the aim as expressed above is most likely to be fulfilled by a continuation of payments to all of the entitled recipients regardless of their dependence on the program…

34. We would consider now each of the fifteen programs, briefly setting out its purpose, salient features and relevant facts and statistics relating to its application.

…

(10) Unemployment Insurance: A total of 1.1 million Canadians are recipients under the Unemployment Insurance scheme. Benefits are calculated with regard to prior earnings. Duration depends upon regional variables and the length of previous employment, with maximum duration set at 52 weeks. Income from other sources is considered in determining the amount of benefits payable. However, income of other family members is not relevant. Claimants are required to report bi-weekly (completing a report card for each week). Payments are contingent upon the receipt of such reports.

…

(13) Old Age security/Guaranteed Income Supplement: Old Age Security is the federally sponsored program whereby all residents of Canada over 65 years of age who have been resident in Canada for ten years prior to application, receive monthly payments. The current OAS monthly rate of payment is $182.42. The Guaranteed Income Supplement is based on a means test and will be paid in certain financial circumstances. Maximum GIS for a single person is $149.76 per month and $124.52 per month for each spouse of a married couple. No GIS is payable at an income level of $3,600 for a single person and $6,000 for a married couple. Of the 2.2 million Canadians who receive OAS, 1.2 million qualify for GIS. Further, a spouse's allowance is payable to persons aged 60 to 65 years. The spouse's allowance is based on a means test and would not be payable should a couple have a combined income greater than $9,000. British Columbia, Ontario, Alberta and Saskatchewan provide an additional income benefit to OAS recipients but these monthly supplements are often quite low. Quebec provides a prescription drug plan for its senior citizens.

…

(15) Canada Pension Plan: This program is a compulsory contributory plan involving contribution during employment with a pension payable on retirement, for disability and on death. Of the 1.2 million beneficiaries 755,000 are retired pensioners, 80,000 are disability pensioners, 33,000 are children of disabled pensioners, 218,000 are survivors and 95,000 are orphans. For a disability pension to be paid there must be severe (the inability to work) and prolonged (indefinite) physical or mental illness. The maximum retirement benefit is $244 per month and the average is about half of this; $240 per month is the maximum disability payment; $165 per month is the maximum payment to surviving spouses. The maximum payment to children and orphans is $67 per month. The plan does not take into consideration other income; however, provincial welfare programs and some private pension plans do take into account Canada Pension Plan payments.

35. … We have no hesitation in holding that the entitled recipients of income payment under the … Canada Pension Plan … Old Age Security, [and] the Guaranteed Income Supplement … must be continued without interruption in the event of strike action in the interest of the safety or security of the public… Finally, notwithstanding the evidence that close to three-quarters of unemployment insurance claimants are persons without dependents, there is little doubt that at any given time for a large number of recipients, be they single or married and with or without dependents, the benefits payable under this program are often the sole source of income. Accordingly, we find that unemployment insurance payments need to be continued for the entitled income recipients in the event of strike action for the safety or security of the recipients within the meaning of section 79 of the Act.

…

39 The respondent submits that CSOs in the in-person delivery channel do exactly what the Board described above; namely, they bring on stream applicants who become entitled to payments under the three programs. The Board designated as essential employees who performed duties in the chain of functions culminating in the issuance of regular income payment cheques, including “… those necessary to bring on stream applicants who become entitled to payments during the course of a strike …”

40 New Brunswick (Workplace Health, Safety and Compensation Commission) (Re), [1998] N.B.L.E.B.D. No. 9 (QL), and New Brunswick (Workplace Health, Safety and Compensation Commission) v. Canadian Union of Public Employees, Local 1866, 2006 NBQB 32, also recognize that the types of duties performed by CSOs are essential.

41 In making its ruling, the Board may rely on its experience and on common knowledge to understand that emergencies can and do occur during a strike and that strike activity consequently has an impact on public safety and security: Atomic Energy of Canada Limited (Re), [2001] CIRB No. 122, at para 282. The Board must err on the side of caution, particularly where there are reasonable grounds for accepting the probability or even the possibility that human life or public safety would suffer: International Brotherhood of Electrical Workers v. Treasury Board (Electronics Group —Technical Category), PSSRB File No. 181-02-8 (19690925); and Treasury Board v. Public Service Alliance of Canada (Radio Operation Group), PSSRB File No. 181-02-99 (19790601).

42 The Board should respect the modern principle of statutory interpretation that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme of the Act and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42. In that vein, the Board has recognized that the Act identifies the protection of the public interest as a paramount objective and has stated that it must apply the essential service provisions of the Act with that paramount objective in mind: see the preamble of the Act and Public Service Alliance of Canada v. Parks Canada Agency, 2008 PSLRB 97 (“Parks Canada Agency”). See also Nav Canada (Re), [2002] CIRB No. 168.

43 The Board must also give a broad and liberal interpretation to the term “service” in subsection 4(1) of the Act. The respondent maintains that “programs” can be, and in this case are, “services” within the meaning of the Act.

44 According to the respondent, the Board should not feel constrained to determine that the services examined in this case are necessary for public safety or for public security. The three core programs at issue affect both safety and security. Where members of the public need to access benefits, the absence of essential program services could not only have an impact on their security but also on their safety, as in the case of a person who is at risk of losing his or shelter with the personal safety hazards that such a loss could entail. That personal safety can potentially be at risk when individuals are unable to access benefits and lose their source of income is almost self-evident. “Safety,” in the ordinary meaning of the term, involves freedom from the risk of injury or loss. The physical security, personal well-being and safety of recipients under the CPP disability program, for example, are at risk if access to benefits is obstructed. The evidence given at the hearing about “dire needs” requests further illustrates the point.

45 That said, it is not necessary in the final analysis for the Board to determine whether “public safety” is also at issue in this case. The concept of “security” is broad enough to encompass elements of safety. To be sure, the French text of subsection 4(1) of the Act only uses the term sécurité as follows:

…

« services essentiels » Services, installations ou activités du gouvernement du Canada qui sont ou seront nécessaires à la sécurité de tout ou partie du public.

46 Where there is a conflict between the two official versions of an Act, the preferred version to adopt is the one that gives a broader interpretation and that, at the same time, achieves the purpose of the legislation: see Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed., Carswell; and Norcan Electrical Systems Inc. v. Feeding Systems A/S, 2003 FCT 702, at para 19. The preferred interpretation of subsection 4(1) of the Act is to construe sécurité as having a broad meaning including the elements of “safety” referenced in the English text. The Board thus may find that the services performed by CSOs are necessary for public safety and, by doing so, subsume “safety” dimensions as well.

47 The respondent also referred the Board to the following decisions: Aéroports de Montréal (Re), [1999] CIRB No. 23; Nav Canada (Re), [2007] CIRB No. 374; Nav Canada (Re), [2007] CIRB No. 375; Public Service Alliance of Canada v. Treasury Board (Heating, Power and Stationary Plant Operation Group - Supervisory and Non-Supervisory), PSSRB File No. 181-2-173 (19850221); Re Ontario v. Ontario Public Service Employees Union, 2002 CanLII 38269 (ONLRB); Re Ontario Ministry of Labour, 2005 CanLII 8234 (ONLRB); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Serco Facilities Management Inc. v. Public Service Alliance of Canada, [1999] N.J. No. 201 (QL); and Treasury Board v. Public Service Alliance of Canada (Education Group), PSSRB File No. 181-2-235 (19870319).

B. For the applicant

48 The applicant agrees that certain elements of the EI, CPP and OAS/GIS programs are necessary for the safety and security of the public. In particular, it accepts that processing applications and issuing program benefits may constitute essential services within the meaning of the Act.

49 However, the applicant does not concur that the provision of in-person support by CSOs at SCCs is necessary for public safety or security. Alternatively, among the broad range of services performed by CSOs, the Board should define as essential only those activities involved in assisting individuals who are otherwise unable to complete a benefit application without assistance.

50 The issues in this case relate to financial security or income security. There is no evidence before the Board that health and safety issues are called into question.

51 The definition of “essential service” in subsection 4(1) of the Act refers to “a service, facility or activity.” This is not a case about a necessary facility. In this case, a “service” or “activity” is essential if it is necessary to delivering the benefits conferred by the EI, CPP and OAS/GIS programs.

52 The Act states that essential services must be necessary for public safety and security. The respondent submits that the Board should adopt a broad and liberal approach to defining “necessity.” What Parks Canada Agency insteadrequires is a balancing of public-interest considerations and the right of employees to engage in lawful strike activity. In that decision, the Board focused the analysis on determining what services were necessary for public safety or security during a strike. At the same time, it acknowledged its important responsibility to give real meaning to the right to strike.

53 The Board’s decision in Parks Canada Agency places the onus on the respondent to lead evidence that there is a reasonable and sufficient basis for finding that CSOs perform essential services. The respondent asks the Board to declare that all aspects of the EI, CPP and OAS/GIS programs are such services. That request is not consistent with the approach in Parks Canada Agency and flies in the face of the absence of evidence about “all aspects” of the programs. The Board cannot place a blanket stamp on the three programs as urged by the respondent. The analysis must attain a greater level of specificity so as to not to confuse “essential services” with “level of service.” To maintain a meaningful distinction between the two concepts, essential services must be narrowly and precisely defined as in the Parks Canada Agency decision, at paragraph 218, so that the second-order “level of service” determination pertains only to the specific duties that the Board identifies in the first order as necessary for the public’s safety or security.

54 There is an important distinction to be drawn between situations that result in inconvenience to the public or the employer and situations that jeopardize the safety or security of the public: Public Service Alliance of Canada v. Treasury Board (Heating, Power and Stationary Plant Operation Group - Supervisory and Non-Supervisory).

55 The safety or security of the public does not include economic hardship or elements of emotional or psychological strain. The Board noted as follows in Treasury Board v. Public Service Alliance of Canada (Radio Operation Group):

…

12. …We have no hesitation in saying that duties, the performance of which are necessary in the interest of the safety or security of the public, do not encompass such duties as would serve only to permit the Employer to carry on business as usual; nor do they encompass such duties as would serve only to protect the Employer or the public from economic hardship; nor do they encompass such duties as would serve only to prevent inconvenience to the public.

13. …To encompass, as well, within the words "safety or security" the mental, psychological or emotional state of individuals strains the ordinary meaning of those words and this is particularly so in the context in which they are used…

…

56 In Data Processing Group, the Board addressed the context of economic hardship caused by a loss of access to benefit programs and stated as follows:

…

30. … only the payment provided to that segment of recipients who had such a degree of income dependency that there might be a risk or hazard to their health, if they were deprived of the opportunity to receive the payment to which they were entitled and on which they relied as the only reasonable and reliable source to meet their minimum needs for sustenance could be deemed to fall within the contemplation of section 79 of the Act as being necessary for the safety or security of the recipients…

…

57 Following the above decisions, the employer must lead convincing evidence demonstrating the safety or security impact of a reduction in services performed by CSOs. Evidence of inconvenience or financial hardship to the public, on its own, will not suffice: see also Treasury Board v. Public Service Alliance of Canada (Education Group) at para 11-14, 22-23 and 26.

58 Service Canada has established various channels to allow members of the public to access information and assistance about the benefit programs. These channels include service on the Internet, over the telephone, by mail and in person at SCCs. Ms. Shanks testified that individuals who are unable to travel to an SCC or scheduled outreach site may obtain assistance by telephone or on the Internet. Ms. Adcock testified that, in fact, 98 percent of EI applications are made online through a fully automated process.

59 When members of the public visit an SCC, CSOs provide them with access to applications, help them complete those applications, authenticate documents and information required by the processing centre and deal with issues about employment records and “dire needs” cases. CSOs do not analyze or process applications. As acknowledged by Ms. Shanks and Ms. Adcock, not every individual who visits an SCC is incapable of filling out an application on his or her own. Individuals visit SCCs for various reasons, including because they prefer not to send certain documents in the mail or because they wish to avoid processing delays.

60 In-person assistance in filling out applications is a worthwhile and laudable service that ultimately aims to make it easier and less frustrating for individuals to apply for benefit programs. It is in the nature of a convenience. The respondent has not demonstrated that the service is necessary for public safety or security. Significant portions of the public presently lack access to SCCs, such as the 10 percent of Canadians who live more than 50 km from an SCC or outreach site. To argue that in-person services are essential is to accept, without evidence, the proposition that those Canadians are in a situation that presently threatens their safety or security. The fact that in-person assistance is effectively unavailable to large portions of the public demonstrates that in-person assistance is not necessary for safety or security.

61 Other than the assertions made by the respondent’s witnesses that applicants who attend SCCs would be unable to apply for benefits in the absence of CSOs, the respondent did not present the Board with evidence that in-person assistance is necessary. For instance, the employer led no evidence as to the ability of family, friends or other community organizations to assist individuals in completing their application forms. Similarly, the respondent had little to say about the ability of the public to access other services provided by members of the bargaining unit, such as telephone assistance. The availability of such services must be considered and is directly relevant to whether the cessation of duties by CSOs would threaten the safety or security of the public.

62 If the Board concludes that CSOs are necessary to provide in-person assistance to certain individuals, it should define the scope of the essential service narrowly to providing services to only those individuals who would not be able to complete their applications without in-person assistance.

63 The applicant identified examples of services that it maintains fall outside that narrow definition: checking applications for completeness to avoid processing delays; authenticating documents for individuals who visit an SCC because they prefer not to submit their documents by mail; providing general information about program offerings; answering general questions from the public; providing assistance in languages other than French or English; or receiving requests to change information, clarify discrepancies or amend Service Canada databases.

C. Respondent’s rebuttal

64 In Parks Canada Agency, the Board did not state that only the employer has the burden of proof. Ultimately, both parties must present evidence to support their respective positions. The applicant did not do so. It did not demonstrate through evidence any aspect of a CSO position that is not essential for public safety or security.

65 CSOs do not just verify applications. The employer has made its case that they act as enablers and are the vital link between members of the public and the benefits that they seek.

66 The applicant asks the Board to take into consideration that individuals can secure assistance from others in submitting their applications. While that might be the case for certain disabled applicants who seek program benefits, it does not relieve Service Canada of the obligation to ensure that people who are potentially entitled to benefits are able to apply for those benefits. With respect to the option of using other channels, people who visit an SCC have probably experienced a significant life event and are potentially in a traumatized state. Those persons are not able to use the Internet or apply by telephone. Moreover, persons with “dire needs” most often need to secure in-person assistance.

IV. Reasons

67 Following the analytical path outlined by the Board in Parks Canada Agency, the first-order determination to be made in this decision is to identify what services delivered by, or activities performed by, a PM-01 CSO at an SCC — if any — are necessary for the safety or security of the public.

68 In Parks Canada Agency, the Board assigned the principal burden of proof to the employer, as follows:

…

180.… the Board takes the view that the principal burden of proof under the new Act continues to rest with the employer, as it did in the past when the employer proposed to designate positions under the former Act. The employer must place evidence before the Board to convince it that there is a reasonable and sufficient basis for finding … that a service is essential …

…

69 The respondent in this case maintains that the Board in Parks Canada Agency did not locate the burden of proof only with the employer. The respondent argues that both parties should submit evidence to support their respective positions. In effect, it asks that the Board take into consideration that the applicant did not lead evidence and thus fell short of meeting its share of the burden of proof.

70 With respect, this Board disagrees with the respondent’s depiction of the ruling on burden of proof in Parks Canada Agency. The panel of the Board in that decision specifically rejected the argument then advanced by the employer that the evidentiary onus at some point shifts to the bargaining agent, noting the exception stated in subsection 123(7) of the Act. The panel did comment at paragraph 179 that “… subsection 123(1) of the new Act launches a process that in some respects resembles a fact-finding inquiry more than a classic adversarial proceeding.” That description, in this Board’s view, did not modify the panel’s ruling about the burden of proof. Instead, it was a statement to the effect that a Board decision in an essential services case is less about finding in favour of one party’s position than it is about determining what outcome meets the requirements of the Act. That does not mean that there is an equal or shared responsibility on both parties to prove the facts. The principal burden of proof remains with the employer. It is thus open to the bargaining agent to decide not to lead evidence in an essential services case. While that decision leaves the Board to determine the outcome based only on the facts adduced by the employer, as tested in cross-examination by the bargaining agent, no formal prejudice attaches to the bargaining agent’s approach. Its decision may turn out to be strategically flawed when the Board weighs the final result without the benefit of countervailing evidence, but it is not a failure on the bargaining agent’s part to meet a formal onus to prove or disprove a case.

71 The respondent asks the Board to declare that all aspects of the delivery of the EI, CPP and OAS/GIS programs are essential or that, alternatively, the three programs are themselves essential.

72 The Board understands that the foundation of the respondent’s position, most simply stated, is that the Board should recognize and protect the public’s interest to have undisrupted access to the statutory benefits of the EI, CPP and OAS/GIS programs. For the employer, the programs themselves are almost self-evidently essential for public safety or security. At the beginning of his testimony, for example, Mr. Boulianne stated that the respondent approached ESA negotiations “… by taking for granted that certain programs were considered to be essential.”

73 Is it appropriate under the statutory scheme to declare that the EI, CPP and OAS/GIS programs — or any program in its entirety — is essential? The definition of an “essential service” in subsection 4(1) of the Act does not use the term “program.” Rather, it refers to a “service, facility or activity.” In its common usage in government, however, the word “program” can refer to a collection of related services or activities, or perhaps even facilities, housed within a common organization and designed to serve a stated common purpose(s). To that extent, declaring a program essential might well be considered the equivalent of finding that its component services, activities or facilities are necessary for public safety or security. Doing so would not necessarily be inconsistent with the architecture of the Act or its purposes.

74 The real problems lay elsewhere. If a program is to be declared essential in its entirety, then the onus of proof that falls to the employer must be to establish comprehensively that all services, activities or facilities that make up the program are necessary for public safety or security. Depending on the nature of the program under scrutiny, the evidence required to satisfy that burden might be very extensive and/or highly detailed, leading to protracted hearings and to complex decisions. Beyond the obvious challenge that that might entail for managing essential service applications efficiently, there are more substantive concerns. Programs typically include diverse elements that arguably bear more or less directly — or more or less immediately — on program objectives. Virtually every program contains ancillary activities that may or may not be vital to achieving the desired program outcomes. Thinking hypothetically about the EI program, for example, it is not difficult to imagine that the program as an operational or organizational entity might include ancillary elements such as background research, performance assessment, audit and the development of information tools and information processing systems, in addition to the activities that directly process and deliver EI benefits. As well, the program must inevitably include the normal corporate activities that every program requires (financial and human resource management, etc.). If the EI program is essential in its entirety, for instance, does that mean that all ancillary services and required corporate activities within the EI program are also necessary for public safety or security?

75 The “unit of analysis” concern here is serious. In practical terms, a “program” may simply be too large or extensive a unit of analysis to be readily identified as an essential service within the meaning of subsection 4(1) of the Act. More seriously, declaring a program essential in its entirety may not be consistent with the “balancing act” described in Parks Canada Agency. The panel in that decision offered the following important comment at paragraph 179:

…

…[The Board] must also define essential services with a sufficient degree of precision to facilitate the eventual identification of specific essential positions. Precision also serves the goal of reducing the possibility that an essential service too broadly defined may result in the unnecessary removal of the right to strike from other employees.

76 This Board finds on balance that it cannot declare the EI, CPP and OAS/GIS programs in their entirety — or the delivery of those programs in its entirety — as an essential service. Besides the fact that it does not have before it detailed evidence about all aspects of the three programs, the Board believes that such a declaration would be too broad in scope to facilitate the other determinations that will be required to complete the ESA, including the “level of service,” the types and numbers of positions and the specific positions needed to deliver essential service(s) at the level of service set by the respondent. Moreover, in the Board’s view, a broad declaration that the EI, CPP and OAS/GIS programs are essential would risk denying more employees the right to strike than is reasonably necessary to protect public safety and security in the event of lawful strike action. The Board believes that the “balancing act” envisaged in Parks Canada Agency requires a more precise definition of essential services in this case. While still preferring to err on the side of caution to safeguard the public interest, the Board must decide what specific services or activities are necessary for public safety or security within the broader context of the EI, CPP and OAS/GIS programs — in this decision addressing the role played by CSOs in SCCs.

77 The respondent also asks that the Board declare that the CSO position is a “type of position” that is necessary for the employer to provide essential services. In the respondent’s submission, all aspects of the in-person service activities of CSOs that relate to the EI, CPP and OAS/GIS programs are necessary to provide for the safety or security of the public.

78 The applicant accepts that certain elements of the EI, CPP and OAS/GIS programs are necessary for the safety and security of the public. It agrees that processing applications and issuing program benefits may constitute essential services within the meaning of the Act but takes the position that the in-person services performed by a CSO are not themselves necessary for public safety or security.

79 In contrast to Canada Parks Agency, where the Board examined services related to safety in the traditional sense of physical risks and hazards to the public, the debate between the parties in this case primarily concerns security and, specifically, economic or income security. As such, this is the first decision where the Board considers how the concept of security of the public applies under the scheme of the current Act.

80 The Board recognizes that the respondent argues that the services or activities in question also affect the safety of the public, linking to the case law that has found that some members of the public depend for their physical safety and well-being on social welfare payments. In these reasons, the Board does not find it necessary to rule whether there are safety aspects per se in the work that CSOs perform. It prefers to use the term “security,” in the sense of “economic security” or “income security,” giving the term relatively broad meaning. The Board believes that it is a well-accepted precept that economic or income insecurity carries with it the possibility of a risk to physical well-being, if not also to personal physical safety. If a service or activity is necessary to ensure the economic or income security of the public, it follows that it may also be necessary to protect some members of the public from the risks to physical well-being or personal physical security that can come with economic or income insecurity. In that sense, the argument that the term sécurité in the French text includes both the “security” and “safety” elements mentioned in the English text makes good practical sense. The Board, however, does not consider it necessary to make a formal ruling in this decision on the terminological differences between the English and French texts.

81 Both parties identified the decision in Data Processing Group as directly relevant — the most relevant case law, according to the respondent. This Board concurs. It is the decision cited by the parties that most directly contemplates the issue of safety and security within the context of the EI, CPP and OAS/GIS programs. (The Data Processing Group case itself draws on the Board’s earlier decision in Public Service Alliance of Canada — Clerical and Regulatory Group, Programme Administration Group and Data Processing Group v. Treasury Board, PSSRB File No. 181-2-1 (19780605), not directly discussed by the parties.) While some of the other cited decisions may be useful for more general points of interpretation, none has the same direct focus on what the Board, in Data Processing Group, called the “social welfare field.”

82 The Board’s 1978 finding in Public Service Alliance of Canada — Clerical and Regulatory Group, Programme Administration Group and Data Processing Group set the stage. The issue before the Board in that decision was “… the extent to which the initiation and continuation of payments under [the social welfare] programs are necessary in the interest of safety or security of the recipients in the event of a strike.” The Board (at page 6) found that the safety and security of the public is not necessarily affected by a failure to initiate or continue payments. Instead, public safety and security is an issue only where

…

… there may be a segment of recipients who have such a degree of income dependency that there may be a risk of a hazard to their health if such recipients were deprived of the opportunity to receive the payments to which they are entitled and on which they rely as the only reasonable and reliable source to meet their minimum needs for sustenance.

…

83 The concept of income dependency at the heart of the Board’s 1978 ruling differs from the notion of “economic hardship” that the Board found one year later to fall outside public safety or security: see Treasury Board v. Public Service Alliance of Canada (Radio Operations Group) at paragraph 12, as cited by the applicant.

84 The Board in Public Service Alliance of Canada — Clerical and Regulatory Group, Programme Administration Group and Data Processing Group applied several different means tests to determine whether the degree of income dependency of a recipient was such as to require the continued payment of benefits so as to prevent a risk to that recipient’s safety or security. To receive Unemployment Insurance (UI) benefits (as they were then known), the Board determined that an individual would either have to be single or, if married, have an unemployed spouse or a spouse earning less than a minimum monthly threshold amount. According to the Board, CPP benefits should continue only if the recipient was also paid the GIS or, if not, was declared by the government to be earning less than certain specified income levels. Finally, the Board found that OAS benefits should only continue for individuals who also receive the GIS.

85 In Data Processing Group, the Board returned to the question of social welfare programs and means testing and acknowledged that means testing was sound in principle as a method of determining whose social welfare payments should continue in the event of a strike, but it rejected as impractical the actual methods outlined in the Board’s 1978 decision to determine income dependency. The decision in Data Processing Group took a different tack, as summarized at paragraph 33 as follows:

33. … We have assessed each of the programs and have made e [sic] decision as to whether the aim as expressed above is most likely to be fulfilled by a continuation of payments to all of the entitled recipients regardless of their dependence on the program. In reaching our decision on each program, among other things, we have been influenced by the evidence relating to the number of dependent recipients and the acuteness of their need. By adopting this approach we recognize that recipients not dependent on a program will continue to receive payment also. This is the price or trade-off that must be accepted to achieve our primary goal. By the same token, with respect to programs that the Board decides need not be continued in terms of providing payment cheques to entitled recipients in the event of a strike, there may be some dependent recipients who, in the absence of any other assistance may be subject to the kind of deprivation we are seeking to prevent. In any such circumstances, in our view, there is a moral obligation on the Employer to endeavour to take such appropriate alternative steps as it can to ensure the safety or security of such persons.

The Board proceeded to rule that the payment of benefits to all recipients under the UI (now EI), CPP and OAS/GIS programs should continue in the interest of public safety or security.

86 Both Public Service Alliance of Canada — Clerical and Regulatory Group, Programme Administration Group and Data Processing Group and Data Processing Group were decided based on written submissions. Regrettably, neither decision provides more than a passing indication of the type of factual evidence offered in the written submissions on which the Board relied to explore the issue of income dependency.

87 In this Board’s view, the most important lesson to be drawn from earlier Board decisions looking at social welfare programs is the consistent finding that discontinuing benefit payments or access to the processes required to initiate benefit payments carries the risk of jeopardizing the safety or security of at least some entitled recipients. At the risk of erring on the side of caution, the Board in the past determined that all benefit payments should continue in the event of a strike to ensure that those who depend for their most basic economic security on the payments are not placed in peril.

88 Notably, the applicant in this case does not appear to challenge that finding. What it argues, instead, is that the specific functions performed by CSOs are not necessary to ensure the processing of applications and the payment of benefits that, in its view, may qualify as essential services within the meaning of the Act.

89 The employer’s witnesses offered evidence almost all of which fell into two categories: (1) information about the EI, CPP and OAS/GIS programs and the benefits they provide, and (2) a description of the duties performed by CSOs within the context of the in-person service model operating at SCCs and scheduled outreach sites. Significantly, the employer offered relatively little direct evidence about the actual impact of the program payments on recipients or about their degree of dependence. While several exhibits do portray the volume of transactions by program and by type of benefit, the only clear and direct question about the impact on the public of a cessation of CSO services was one put to Ms. Power-Reid. The resulting testimony was summarized in paragraph 28 of this decision as follows:

… Asked what the impact would be if no CSOs were available during a strike, Ms. Power-Reid stated that 90 percent of the clients who visit the Ottawa West SCC about EI claims have an issue or a barrier that prevents them from using other channels without assistance, or at all. Only 10 percent of EI clients that visit use the workstations without the help of staff. For the applicants who do need assistance, the absence of CSOs would cause delays in processing their claims that could cause significant economic hardship.

90 In cross-examination, Ms. Power-Reid clarified that the 90 percent of EI clients who required the assistance of a CSO at the Ottawa West SCC included persons directed by processing staff to go to an SCC. Some of the EI clients to which Ms. Power-Reid referred completed their transactions using on-site computer terminals on their own or with a CSO sitting with them. On a typical day, approximately 300 persons visit the Ottawa West SCC. With respect to the visitors who are completing EI applications — the largest component of daily transactions — Ms. Power-Reid accepted the applicant’s calculation that approximately 140 might need assistance.

91 The evidence suggested a number of reasons beyond personal preference or convenience why clients who visit an SCC might seek and require assistance: language, literacy or numeracy problems; inability to use computers; debilitating or terminal illness; or emotional stress or shock caused by bereavement or other traumatic life event, including a recent loss of employment.

92 The Board has no reason to discount that evidence and no countervailing testimony that might challenge the legitimacy of some or all of the stated reasons. On that basis, the Board accepts that there will be some program clients who present themselves at an SCC during a strike who will genuinely require the assistance of a CSO to initiate a benefit application or to complete a transaction required to ensure that payment occurs. In that sense, CSOs do enable the processing of applications and the issuance of payments by others for some subset of eligible recipients, the size of which cannot be precisely established with the evidence available to the Board.

93 What the evidence does not directly establish is what proportion of the persons who require in-person assistance in some form or other from a CSO are dependent on the benefit payment to the extent that failure to receive the payment, or encountering a delay in receiving it, reasonably threatens their security. The Board has Ms. Power-Reid’s opinion that the absence of CSOs “… could cause significant economic hardship” for some members of the public, but it does not have, for example, any statistical information, studies or qualified expert testimony that would tend to corroborate her opinion.

94 The Board does have uncontradicted testimony that CSOs encounter persons who must make “dire needs” requests with their assistance, although there is no clear indication in the evidence about the volume of such requests.

95 The evidence indicates that there are alternate service channels available to initial applicants and ongoing benefit recipients. Indeed, the evidence is unequivocal that a very substantial and increasing number of clients, particularly in the case of the EI program, routinely have their needs met without visiting an SCC and without the assistance of a CSO — mainly via the Internet but also by telephone or mail. The applicant urges the Board to incorporate the availability of other service channels into its assessment of whether CSOs provide an essential service.

96 The Board notes that there are specific limits imposed by the Act on its authority to identify the number of employees who are necessary to provide an essential service. Those limits may operate at a later stage to constrain the Board’s freedom to consider the possibility that the clients served in person by CSOs at SCCs could rely on alternate means of accessing the services they require. Subsections 123(5) and (6) read as follows:

          (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

          (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer's use of overtime and the equipment used in the employer's operations.

However, the Board finds that the Act does not state that the Board is similarly constrained when it determines essential services as a first-order matter.

97 That said, the Board does not feel that the availability of alternate service channels is a determining factor in this decision. The Board has found that some clients will need the assistance of a CSO in the event of a strike for reasons that were not contradicted by the applicant. If the Board were to be satisfied that there are reasonable numbers of individuals among the clients who genuinely need the help of a CSO and whose economic security may be at risk without that assistance, a case has been made that CSOs do provide a service necessary for public safety or security.

98 The relative lack of direct evidence in this case to establish the nature and the extent of the impact that program payments have on the economic security of the public poses some concern. For example, it might have been very helpful to receive concrete information to confirm that many recipients who visit SCCs depend on program payments as their sole source of income or for a very substantial proportion of their income. It might, for instance, have been useful to understand how many payment recipients with whom CSOs interact are the sole income earners in a household. Conceivably, other types of information about the financial status of applicants or payment recipients, particularly those who visit SCCs, could also have contributed to a better appreciation of the potential impact on the economic security of clients of the services that CSOs provide.

99 In some sense, the Board in this case faces much the same dilemma that the decision makers encountered in the Data Processing Group decision. In that decision, the Board found that it could not practically distinguish between members of the public who depended on the EI, CPP and OAS/GIS programs for their economic security and those who did not. As a result, it concluded that it had to make decisions about safety and security designations on the basis that payments to all recipients should continue.

100 In this case, the Board does not have the benefit of a well-documented factual case to determine the extent of economic dependency among the clients who legitimately require the assistance of a CSO, and thus it cannot know with any certainty how many clients normally assisted by CSOs would face a risk to their economic security if CSOs were unavailable.

101 In effect, the respondent argues that the Board need not be certain that the clients assisted by CSOs will face a potential risk to their security in the event of a strike but, rather, that the Board only has to be convinced that there is a reasonable possibility of that risk. Specifically, the respondent argues that the absence of CSOs in the event of a strike poses a probability or a rational possibility of risk to public safety or security. In the face of case law that the Board must err on the side of caution in making its determinations, and based on the Board’s own experience and common knowledge of the urgent situations that may arise during a strike, it should rule that CSOs perform an essential service: International Brotherhood of Electrical Workers v. Treasury Board (Electronics Group — Technical Category); Treasury Board v. Public Service Alliance of Canada (Radio Operations Group); and Atomic Energy of Canada Limited (Re).

102 Even though this Board is unable to quantify the extent or immediacy of the potential risk to the economic security of the public based on the evidence before it, it cannot safely conclude that there is no such risk or that the risk is too minor to justify a ruling in favour of the respondent. Although limited and largely indirect, the respondent has offered evidence that is sufficient to establish the reasonable possibility that the assistance provided by CSOs to at least some members of the public who visit SCCs is necessary for their economic security. The Board can rely, for example, on testimony to the effect that GIS payments are income tested — only those recipients of CPP benefits who have no other source of income or little other income can establish an entitlement — to infer that the basic income security of applicants seeking GIS benefits might be imperilled were barriers placed in the way of the application process. The Board can reasonably infer from the evidence that at least some of the members of the public who interact with CSOs to advance “dire needs” requests face immediate risks to their economic security. Among the large number of clients who seek CSO assistance for EI claims, the Board can reasonably accept that some proportion of that group are persons who have no other immediate income and stand on the brink of serious economic insecurity — a finding consistent with the Board’s decisions in Public Service Alliance of Canada — Clerical and Regulatory Group, Programme Administration Group and Data Processing Group and Data Processing Group. Similar inferences and conclusions are reasonable for other classes of applicants and benefit recipients.

103 On that basis, and willing to err on the side of caution, the Board finds that the respondent has met its onus to establish that CSOs provide an essential service.

104 What, specifically, is the essential service(s) provided by a CSO? The applicant, in its argument in the alternative, maintains that the Board should express any essential service narrowly, limiting it to those situations where members of the public would not be able to apply for EI, CPP or OAS/GIS benefits without the assistance of in-person services. While the argument has some considerable merit in principle, it fails in practice. One cannot reliably predict which clients, or how many, visiting an SCC will be unable to access services without assistance. Moreover, it would be largely impractical to require a CSO, or some other member of an SCC’s staff, to conduct a preliminary inquiry with a client to determine whether he or she has a genuine need for assistance as a condition to assigning a CSO to provide that assistance. Inevitably, those CSOs who may eventually be identified under the ESA as providing an essential service will continue to encounter clients during a strike who genuinely require assistance and other clients who might well be able to meet their needs in other ways with little or no assistance. The situation involves a probabilistic assessment with inherent uncertainties. The possibility or probability that there will be some clients who must have assistance establishes the requirement for the service during a strike to protect the security of the public. That not all clients will actually require assistance during a strike does not change the need to maintain the essential service. However, it may well be an important factor in determining how many CSO positions should be identified as necessary in any given location during a strike once the respondent determines the “level of service” that will be maintained.

105 The respondent, for its part, argues that the Board should identify all aspects of the work performed by CSOs as necessary for public safety or security, referring the Board in particular to the statement of key activities found in the work description (Exhibit HRSDC-SC-E-7). The Board finds that the respondent’s position has something of the flavour of a “business as usual” model, although the Board accepts the possibility that there may be elements of work referenced in many of the job description “key activities” that could come into play in providing required assistance in a given situation.

106  An ESA, however, need not be cast at the same level of detail as is appropriate for a job description. The latter is a tool created for the primary purpose of classifying a position against a classification standard. The description of an essential service in an ESA exists for a quite different purpose. It needs to be sufficiently specific to identify what major functions should continue in the event of a strike as well as to facilitate determinations about other required content elements in an ESA — mainly, the final number of positions that will be necessary to provide the essential service should strike action occur. To that end, the Board does not expect that ESAs will necessarily look like a collection of excerpts from classification documents.

107 The Board has concluded that a simplified statement of the essential service is possible and appropriate in this case. It finds that the essential services performed by CSOs at SCCs are as follows:

1. Providing at normal service delivery locations such assistance to members of the public who seek to obtain a benefit under the EI, CPP or OAS/GIS programs as is reasonably required to enable them to submit completed applications for processing, with required documentation, and provided that the service is a service normally performed by the incumbent of a Citizen Service Officer (PM-01) position within the confines of the official job description for that position.
2. Providing at normal service delivery locations such assistance to members of the public who are in receipt of a benefit under the EI, CPP or OAS/GIS programs as is reasonably required to enable them to continue to receive a benefit to the extent of their eligibility, provided that the service is a service normally performed by the incumbent of a Citizen Service Officer (PM-01) position within the confines of the official job description for that position.

108 Under section 120 of the Act, it is the employer’s responsibility to determine the level at which the essential services described above will be delivered to the public during a strike. Determining the “level of service” is the next step in the analytical path that the Board described in Canada Parks Agency for deciding the content of an ESA.

109 For all of the above reasons, the Board makes the following order:

V. Order

110 The Essential Services Agreement (ESA) for the Program and Administration Group will include the following provision:

111 The Board directs the respondent to determine the level at which the foregoing essential services will be delivered to the public in the event of a strike in accordance with section 120 of the Act and to so inform the applicant and the Board within 30 days of the date on which this decision is issued.

112 The Board further directs the parties to resume negotiations and to make every reasonable effort to negotiate the remaining content of the ESA regarding PM-01 Citizen Services Officer positions.

113 The Board remains seized of all other matters relating to PM-01 Citizen Services Officer positions that may be included in the ESA and that are not resolved by the parties.

114 The Board remains seized of all matters not agreed by the parties regarding other positions in the PA Group.

April 28, 2009.

Dan Butler,
Board Member