FPSLREB Decisions

I. Application before the Board

1 On January 8, 2010, the Canada Revenue Agency (CRA or “the applicant”) applied to the Public Service Labour Relations Board (“the Board”) for a determination of a matter relating to an essential services agreement (ESA) for six call centres across the country. In particular, the CRA was seeking a determination that positions related to enquiries for the Goods and Services/Harmonized Sales Tax credit (GSTC) are essential for the safety and security of the public. These positions are in the Program Delivery and Administrative Service Group (SP). The parties are in agreement that enquiries related the Canada Child Tax Benefit (CCTB) are to be included in an ESA. In its application, the employer stated:

...This application is in support of 117 positions to ensure the continuation of the determination and distribution of GSTC payments to qualified recipients in the event of a strike.

2 Two witnesses testified for the CRA. The bargaining agent called no witnesses.   

II. Summary of the evidence

3 This application is about the work performed by taxpayer service agents (TSAs) at six call centres across the country. The TSAs answer phone calls from taxpayers about the following three program areas: individual income tax (T1), the CCTB and the GSTC. The CRA has not proposed that individual income tax enquiries be part of the ESA. The bargaining agent agreed that the service provided for the CCTB should be part of an ESA. The bargaining agent is contesting the inclusion of the service provided for the GSTC program in the ESA.

4 The bargaining agent has contrasted the CCTB with the GSTC in support of its position. Therefore, I will set out a brief description of the program.

5 The CCTB is a non-taxable amount paid monthly to help eligible low-income families with the cost of raising children under 18 years of age (Exhibit A-4). The payment can include the Child Disability Benefit, a monthly benefit that provides financial assistance for eligible families caring for children with severe and prolonged mental or physical impairments. The payment can also include the National Child Benefit Supplement. The basic benefit under the CCTB is $1,340 a year for each child under 18, paid on a monthly basis (approximately $112 per month). Additional amounts are payable for third and additional children as for a child with a disability.   The basic benefit is reduced by 2% of family net income when family income is more than $38,832. The reduction is 4% for those families with two or more children. The National Child Benefit Supplement ranges from $145 to $173 a month and a reduction in benefit starts when the net family income is more than $21,816.     

6 The GSTC program provides quarterly payments to low-and modest-income Canadians. The program is designed to offset for these taxpayers all or part of the Goods and Services Tax (GST) or the Harmonized Sales Tax (HST) that is paid. The GSTC is an income-tested benefit. The income cut-off to receive the credit ranges from $40 126 for a single adult to $52 986 for a single parent or couple with four children (Exhibit A-3). Payments are made quarterly (July, October, January and April). Each eligible adult is entitled to an annual payment of $250 and a payment of $131 for each child under 18. Single parents are entitled to a $250 payment for one child (equivalent to spouse). Also included in the same quarterly payment are a number of provincial programs that are either sales-tax related or other low-income credits, e.g., the British Columbia Low Income Climate Action Tax Credit (Exhibit A-5). The amount of the payment will vary depending on the number of children and the applicable rate for any provincial credit. In the scenarios prepared by the CRA for this hearing (Exhibit A-8), the quarterly amounts payable ranged from $223.25 to $490.25. Unlike other tax credits, no proof of payment is required.

7 For the GSTC, payments will be applied to amounts owing for income tax balances or amounts owing to other federal or provincial government programs. CCTB payments are not applied to other amounts owing (Exhibit A-4).

8 In its application, the CRA provided the following rationale for including both the CCTB and the GSTC in an ESA:

…For some recipients, tax-free benefit payments make up a considerable portion of their monthly income and for these low-income families, receiving the expected benefit on time is essential. In many cases, provincial and territorial child benefit and credit programs are also included with these benefit payments. ... Our telephone enquiries play a crucial role in ensuring that Canadians receive the correct amount of their benefits on time. Any interruption of service could lead to situations of hardship for many benefit recipients. 

9 The CRA also included in its application a “job rationale” for the TSA position. The summary of duties for the position is as follows:

Provides explanations and clarification to benefit recipients in response to general enquiries, eligibility issues, entitlement issues and accounting issues related to multiple social benefit programs administered by the Canada Revenue Agency, primarily the Canada Child Tax Benefit (CCTB) and the Goods and Services Tax Credit (GSTC).

The job includes duties such as providing assistance in completing CCTB applications; updating mailing addresses to ensure timely receipt of benefits; updating child identification  information or residency information; explaining eligibility issues, including cases of change to the primary caregiver; explaining entitlement calculations, including changes in payment amounts; and researching missing benefit payments. 

10 The CRA also submitted a job description for the position (Exhibit A-2).

11 Linda Watts is an acting manager at the call centre in Hamilton, Ontario. She has been at the call centre for 12 years, occupying several positions. She testified that there are separate telephone numbers to call for the CCTB and the GSTC. All calls go through to headquarters and are then routed automatically to one of the call centres. The routing is done based on call volume and time of day. When an individual calls, an automated process is activated for obtaining general information on a range of topics. The other option is to speak to a TSA. Ms. Watts testified that, if someone called the CCTB number and had a question about the GSTC, they would be advised by the TSA to phone the number for the GSTC. Calls are not transferred, and the TSAs will not answer account-specific calls for the GSTC if someone calls the CCTB number, and vice versa.

12 Taxpayers are advised by the CRA that they should contact the call centres for the following reasons (Exhibit A-3):

• A change in address;
• A change in the number of children in your care;
• A change in your marital status;
• To start, end, or change direct deposit;
• If a GSTC recipient has died;
• If a GSTC recipient is no longer resident in Canada; and
• If you did not receive a payment.

13 Ms. Watts testified that a taxpayer could also call to advise of a change in income that might affect the benefit payable.

14 Ms. Watts testified that there are cut-off dates for changes that will affect the receipt of payments, including a change in address. The date will vary, depending on the date of issuance of the cheque. For example, for an April 2010 cheque, the cut-off date (“the run date”) was March 9, 2010. If a change were not received by March 9, 2010, the change would not be reflected in the April payment but would only be changed for the next quarterly payment.

15 Ms. Watts testified that an address change can be done over the telephone with a TSA. A taxpayer can also write to the CRA to change an address. It takes between 6 and 12 weeks to make an address change requested by mail. Taxpayers can also make changes online after setting up what is called “My Account.” Ms. Watts testified that it can take up to three weeks to set up the account.

16 To change marital status, a form or letter must be filed with the local Tax Services Office (TSO). This change cannot be done over the telephone. The TSAs will respond to such enquiries by directing taxpayers to the Internet or a local TSO to obtain the necessary form. If the number of children in care changes, the credit will be recalculated. If a child is registered for the CCTB, the child is also registered for the GSTC. If a taxpayer has not applied for the CCTB (or is not eligible), the taxpayer must complete a form and submit it either electronically or to a TSO.

17 Ms. Watts testified that the TSAs can provide information to taxpayers on how to make changes to such things as marital status and the number of children in their care, even if they cannot make the change over the telephone. For example, the TSA can tell the taxpayer how to get the appropriate form and where to send it. The TSA can also tell the taxpayer what to put into a letter or form. The TSA can also advise the taxpayer how long it could take for the change to be processed and when to expect a change in the GSTC. 

18 Changes to banking information cannot be made over the telephone unless the taxpayer has “… other CRA products deposited into the same account” (Exhibit A-3). The only changes that may be made to direct deposit over the telephone are to cancel it or to direct a payment to an already existing account on file with the CRA. If the CRA is unable to directly deposit a payment, a cheque is mailed to the address on file.

19 If a GSTC payment is not received, a trace can be put on the payment 10 working days after it was supposed to have been received. For the CCTB, a trace can be put on the payment five days after it was supposed to have been received. Nina Dyer is the acting manager for the Telephone Program Division of the Taxpayer Services Directorate at CRA headquarters in Ottawa. She testified that, if a cheque is not found, a new cheque can be issued only after the taxpayer provides a completed form and an affidavit. She said that this process could take a long time and is costly for the CRA.

20 In 2009-2010, over 16 million calls were received at call centres. Approximately 12.4 percent of those calls were for enquiries about the CCTB, and 9.8 percent were for GSTC enquiries (Exhibit A-6). 

21 In a survey made of calls for the CCTB and the GSTC in 2008 (Exhibit A-5), it was determined that 82 percent of calls related to taxpayers’ own accounts. For the GSTC, the percentage was 90. The calls were about such matters as asking how much the taxpayer was going to receive, confirming the status of an application, changing an address or confirming a change of address, or informing of a change to the number of children in care or marital status. Sixteen percent of all calls related to address changes for the GSTC. For all calls about the GSTC, approximately 13 percent were inquiries about payments not received. About 5 percent of the calls were what Ms. Watts called “comfort calls” — people just confirming that they would receive a cheque. Direct deposit enquiries represented about 5 percent of all GSTC enquiries. These enquiries were either about changes in banking information or about cancelling direct deposits.

22 Ms. Dyer testified that the CRA had determined that comfort calls should not be part of an ESA. She testified that in the event of a strike the CRA intended to have an automated message informing taxpayers that such calls would not be responded to and referring them to either a self-serve option or online services. She testified that the CRA considered calls about a payment not received to be essential, as well as changes to addresses. Ms. Dyer testified that the GSTC was considered by the CRA as essential because it was an income-based program and was therefore needed by eligible taxpayers.

23 Ms. Dyer also testified as to how the CRA determined the level of service to be provided in the event of a strike. It is not relevant to the application and I have not summarized this evidence. She also testified as to how the CRA reached its conclusions on the number of positions required to deliver the essential service. As I have decided that determining the number of positions is premature, I have not summarized this evidence.       

III. Summary of the arguments

24 The parties made oral submissions at the hearing. The bargaining agent provided written submissions to supplement its oral submissions. Those written submissions are on file with the Board. 

A. For the CRA

25 There are two components to the application from the CRA that is before the Board. First, the CRA seeks a determination that GSTC services delivered by call agents constitute essential services for the safety and security of the public. Second, the CRA seeks a determination by the Board on the number of positions required as well as the specific positions for the delivery of this essential service. The CRA submitted that it was clearly asking that I decide both issues.

26 The number of positions put forward by the CRA gives the critical mass of employees needed to deliver the essential service. The two issues —determining the essential service and the positions — are linked and cannot be analyzed separately.

27 The evidence showed that agents in the call centres deal with two programs — the GSTC and the CCTB. Agents respond to calls from both lines. The enquiries are similar for both programs. Taxpayers call about the amount they are owed and the status of payments and change of their information (address or marital status, for example).

28 The CRA determined the level of service to provide in the event of a strike by examining the types of calls received and the normal number of agents required. The CRA then arrived at 98 positions by cutting the number of agents normally needed in half. The CRA determined that comfort calls were not essential, and the evidence showed that the CRA planned to deflect those types of calls.

29 The CRA submitted that an essential service is anything that affects the receipt of the GSTC. This includes address changes, direct deposit information and process information for changing marital status and adding children in care. The evidence showed that, if a taxpayer is not able to reach an agent by a certain deadline, payment may be delayed.

30 The CRA stated that I have to consider the whole situation and that I have to recognize that the 98 positions respond to both the GSTC and the CCTB programs at the same time.

31 The principal burden of proof rests on the CRA (Public Service Alliance of Canada v. Treasury Board (Program and Administrative Services Group), 2009 PSLRB 55 (“Service Canada”), at para 70). The bargaining agent provided no evidence. The CRA’s evidence is uncontradicted. In Public Service Alliance of Canada v. Parks Canada Agency, 2008 PSLRB 97 (“Parks Canada”), the Board held that it should err on the side of caution in determining an essential service. The Board’s role is to balance the public interest against the right to strike.

32 The evidence demonstrated that the GSTC is directed to low-income taxpayers (Exhibits A-8 and A-10). The CRA’s position is that it is extremely important to avoid any risk of jeopardizing the security of a taxpayer. If a taxpayer were unable to reach an agent to change his or her address, a cheque would not be received in time. That taxpayer probably took the payment into account in his or her budget. We do not know the situation of each taxpayer, and the CRA is in no position to tell the Board what people do with the money that they receive. We can infer that, when a taxpayer calls the government about a payment, he or she is in need of that payment.

33 The CRA has already taken into account the right to strike by proposing half of the positions, so the bargaining agent is already reassured that the right to strike is not undermined. The CRA has already conceded that some calls are not essential. It has the exclusive right to determine the level of an essential service to provide. The Board should show some deference to the CRA’s analysis.

34 In Service Canada, the proposed services were similar to the service in this case: the Canada Pension Plan (CPP), Employment Insurance (EI) and Old Age Security (OAS). In that decision, the Board referred to a 1978 decision of the Public Service Staff Relations Board (“the former Board”) (PSAC v. Treasury Board, PSSRB File No. 181-02-1 (19780605)). In that decision, the former Board determined that safety and security was engaged only when “… 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 they do not receive payments “… on which they rely as the only reasonable and reliable source to meet their minimum needs for sustenance.” The GSTC was not in place in 1978. The programs and the economic situation were different from today. The employer in that case disagreed that the test should be “exclusive reliance” on a particular payment. It submitted that it is reasonable to say that any amount received by the taxpayer that is income-based is needed by the recipient.

35 If there is a risk that at least some of the recipients will have their health and security jeopardized, it will justify a finding of an essential service. As the Board stated in Service Canada (at paragraph 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…

36 The GSTC is income tested. The payments could be important to some taxpayers and trivial to others. There is no scientific method for determining the number of people affected.

37 The bargaining agent may argue that the CRA could use alternate methods of communication. That is irrelevant. Paragraph 121(2)(b) of the Public Service Labour Relations Act (PSLRA) states that the employer is not required to change how it operates normally, including “the equipment used” in its operations.

38 In conclusion, the CRA asked that the Board issue an order determining that the services that impact the delivery of the GSTC be considered essential for the safety and security of the public. The CRA also asked that the Board order that the 98 positions that it identified are required to deliver that essential service.

39 In the alternative, the CRA’s position was that the 98 positions were needed for the CCTB program alone. The CRA submitted that, if I determined that the delivery of the GSTC was not essential, I should reserve my decision on the number of positions until such time as the parties have had time to discuss the matter.

B. For the bargaining agent

40 The bargaining agent submitted that there was no dispute about the facts in this case. However, the bargaining agent disputes that the GSTC is an essential service.

41 In the Parks Canada case, the Board set out its interpretation of the new essential services provisions under the PSLRA. The Board noted that the changes in the PSLRA represent a purposeful and substantive departure from the scheme administered under the former legislation, the Public Service Staff Relations Act (at paragraph 134). The Board also acknowledged its responsibility to give “real meaning” to the right to strike, as qualified by other provisions in the PSLRA (at paragraphs 152 and 153).

42 In recognizing several differences between the former legislation and the PSLRA, the Board in Parks Canada noted that the concept of “designations” has disappeared and that it has been replaced by the concept of an “essential service” determined in the context of an “essential service agreement” negotiated by the parties (at paragraph 143). This confirms the bargaining agent’s position that this is a new regime that completely replaces the former “designations” process.

43 The Board also explained in Parks Canada that, despite the legislative changes, a number of elements of the former framework continue to apply to the PSLRA, including that the principal burden of proof continues to rest on the employer. The Board stated that the evidence must convince it that there is a “reasonable and sufficient basis” for finding a service essential (at paragraph 180)

44 In addition, a number of other principles from the jurisprudence continue to apply in determining what constitutes the safety or security of the public. Most notably, there is an important distinction between situations that result in an inconvenience to the public or the employer and situations that jeopardize the safety or security of the public. As the former Board held in Treasury Board v. Public Service Alliance of Canada (Library Science Group), PSSRB File No. 181-02-348 (19970303), an inconvenience is “… a natural result of the withdrawal of services …” (at page 10).

45 In Parks Canada, the Board set out the “analytical path” to meet the requirements of reaching an essential services agreement under the PSLRA. It stated that the “first-order issue” for an ESA is “… the identification of essential services.” The matter presently before the Board is a “first-order” issue. The bargaining agent did not dispute the duties performed by the TSAs, but maintained that those duties support services that are not essential to the safety or security of the public. In particular, the bargaining agent’s position is that the GSTC is not a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public.

46 In two recent cases, the Board has had the opportunity to canvass the former Board’s rulings on the extent to which the economic security of the public was protected under the former legislation and to examine how economic security might be interpreted under the new essential services regime: Service Canada (at paragraphs 81‑86) and PSAC v. Treasury Board (Program and Administrative Services Group), 2009 PSLRB 56 (“Industry Canada”), (at para 72 and 73).

47 In several cases, the former Board made statements about the extent to which economic safety and security might be protected during a strike. In Service Canada, the Board quoted extensively from “social welfare” decisions arising under the former legislation (at paragraphs 82 and 83) as follows:

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.

48 Similarly, in Industry Canada, the Board highlighted the distinction between “economic hardship,” not considered a risk to safety or security of the public, and “… the type of threat to their basic economic well-being that the Board has elsewhere found to comprise a legitimate risk to the ‘security of the public’” (at paragraph 73).

49 In large part, as the following shows, the Board’s decision in Service Canada turned on the distinction between “economic hardship” or “economic insecurity” and the extent to which the economic well-being of clients might be at risk if they could not access the services of Service Canada Centres during a strike (at paragraph 102): 

…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. Similar inferences and conclusions are reasonable for other classes of applicants and benefit recipients.

50 In both the Industry Canada and Service Canada decisions, the Board raised significant concerns about the lack of sufficient evidence presented by the respondent to demonstrate the resulting risk if services were withdrawn during a strike. In both decisions, the Board expanded as follows on the kinds of evidence that may be required to demonstrate the degree of economic harm significant enough to risk the safety or security of the public (Service Canada,at paragraph 98):

…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.

51 In finding that assistant bankruptcy analysts were not performing essential service duties in the Industry Canada decision, the Board again highlighted the need for convincing evidence that the public’s safety or security would be at risk if workers go on strike.

52 The bargaining agent’s position is that the same problem arises in this matter. The CRA did not tender any evidence of the resulting risk to the safety or security of the public if GSTC payments were delayed or misdirected during a strike. Nor has the CRA even demonstrated that GSTC payments would be delayed or misdirected if the TSAs did not answer taxpayer enquires about the GSTC.

53 The CRA raised the issue that a change in marital status could have a significant impact on a taxpayer’s GSTC payment amount. However, Ms. Watts testified that the TSAs could not actually assist a taxpayer in changing his or her marital status over the telephone and that they could only refer him or her to the forms and process.

54 The bargaining agent agreed that the burden of proof to lead convincing and sufficient evidence lied squarely with the CRA and was of the opinion that, in this case, the CRA has not come close to meeting that burden. However, the bargaining agent takes a principled approach to identifying essential services to ensure that the safety or security of the public is not at risk in the event of a strike by its members. As such, it is important for the Board to understand why the bargaining agent’s position is that the GSTC is not an essential service. 

55 As noted by the Board in Service Canada, the bargaining agent did not dispute that certain elements of the CPP, OAS or EI benefits programs may be required to continue during a strike, in particular the processing of applications and the issuance of benefits to eligible individuals. Likewise, in this instance, the bargaining agent agrees with the CRA that the economic security of some members of the public may be at risk if their receipt of the monthly CCTB were delayed by a strike.

56 The bargaining agent’s position was based on the nature of the benefits themselves. Those benefits may be the primary or sole source of income for some recipients, on which they may depend for basic needs such as food and shelter. If the CCTB benefits were delayed as a result of a strike, the bargaining agent recognized that it might put the safety or security of some members of the public at risk. The same is not true for the GSTC.

57 To illustrate why the GSTC is not an essential service, it may be helpful, as follows, to compare aspects of the GSTC with the CCTB that, as noted earlier in this decision, is not in dispute in this case:

Purpose and Payment Schedule

GSTC – “The GST/HST credit is a tax-free quarterly payment that helps individuals and families with low and modest incomes offset all or part of the GST or HST that they pay”.

CCTB – “The Canada Child Tax Benefit is a tax-free monthly payment made to eligible families to help them with the cost of raising children under age 18.”

Delayed payments

GSTC - “We generally pay your credit on the 5th of each quarter (July, October, January & April). If your payment does not arrive on that day, please wait ten working days before calling us at 1-800-959-1953.”

CCTB - “If you do not receive your CCTB payment on the expected date, please wait 5 working days before contacting us at 1-800-387-1193.”

Overpayments

GSTC - “If a recalculation shows you have been overpaid the GST/HST credit, we will send you a notice with a remittance voucher attached to inform you of the balance owing. We will keep all future GST/HST credit payments or income tax refunds until your balance is repaid. Note: We will also apply GST/HST credit payments to amounts owing for income tax balances or amounts owing to other federal or provincial government programs.”

CCTB – “If a recalculation shows that you were overpaid CCTB, we will send you a notice with a remittance voucher attached to inform you of the balance owing. We may keep all or a portion of future CCTB payments, income tax refunds, or goods and services tax/harmonized sales tax (GST/HST) credits until your balance is repaid.

58 Using the CRA’s GSTC scenarios (Exhibit A-8) and the CRA online benefits calculator, the following calculations demonstrate the significant difference between the GSTC as a percentage of annual net income and the CCTB as a percentage of annual income for each scenario:

Scenarios               GSTC           CCTB

1                           8.1%             21%

2                           4.1%             45%

3                           6.4%             25%

4                           7.1%             N/A

5                           6.4%             49%

6                           6.1%             30%

7                           5.4%             30%

8                           3.8%             19%

59 The calculations demonstrate that the GSTC is not an income security program. It is a credit provided to low-and modest-income earners to offset taxes already paid. The modest amount of the annual credit, the infrequency of payments, the lack of urgency in addressing cheque delays and the strict overpayment policy point to a marked difference between the GSTC and the CCTB.

60 The following, from paragraph 102 of Service Canada, reiterates the Board’s reasons for finding that some of the duties performed by Citizen Service Officers (CSOs) are essential:

…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…

61 As for the GSTC, there is no evidence that the TSAs could address a taxpayer’s “dire needs” request to expedite tracing or replace a delayed or misdirected payment. Ms. Dyer’s testimony was that, if a taxpayer called to change an address after the run date, he or she would be informed by the TSA that the change would not take place until the next payment date and that they would have to wait for the “tracing” date to even begin tracking down a missing payment. For April 2010, that tracing date was 18 days after the date of cheque issue (Exhibit A-9). Further, Ms. Dyer testified that, if the cheque were not located, the taxpayer would be required to fill out a form and an affidavit to receive a replacement cheque, that it “would take a long time,” and that it is “costly” for the CRA.

62 The CRA also tendered no evidence to suggest that the GSTC may be a taxpayer’s primary or sole source of immediate income. On the contrary, the GSTC scenarios tendered by the CRA show the GSTC and related provincial credits as a portion of a taxpayer’s income. As illustrated, the GSTC represents a small percentage of income, and if a payment were delayed or misdirected, it could not reasonably be considered as placing the taxpayer “… on the brink of serious economic insecurity …” (Service Canada, at paragraph 102).

63 The bargaining agent recognized that it would be inappropriate for the Board to quantify a “minimum” monetary amount of a benefit or credit for it to be considered an essential service. However, jurisprudence from both the former Board and the Board makes it clear that the Board has a responsibility to balance the safety and security of the public and the right of union members’ to strike.

64 As the Board summarized in Parks Canada (at paragraph 179),

179.   … First, as indicated in the jurisprudence of the former Board, reinforced by the preamble to the new Act, the Board should err on the side of caution in protecting the safety and security interests of the public; see, for example, Canada (Treasury Board) v. Public Service Alliance of Canada, (Radio Operation Group – Technical category). Second, through a different lens, the Board should take care that it not deprive employees of the right to strike (nor, by doing so, undermine the bargaining agent’s ability to conduct effective collective bargaining) unless it is satisfied that the evidence before it establishes a sound basis for declaring a service essential or for determining other matters that may be included in an ESA.

65 Relevant examples of this can be found in the jurisprudence. On the one hand, the Board erred on the side of caution in Service Canada when there was evidence of “… immediate risks to their economic security …” or of persons with “… no other immediate income and [who] stand on the brink of serious economic insecurity …” On the other hand, in Treasury Board v. PSAC (Radio Operation Group), PSSRB File No. 181-02-99 (19790601), the former Board found that the safety and security of the public does 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 …” (at paragraph 12).

66 One of the concerns raised by the Board in Service Canada was that the CSOs could not know who would come to the Service Canada Centre, what service they would require, or whether they would actually need assistance to apply for, or continue, their EI, CPP or OAS payment. For the positions in dispute in this matter, this is not a concern. As both witnesses testified, each “business line” has a designated telephone number. Ms. Watts also stated that, were a TSA to receive a call on the wrong line, the TSA might answer a general question but would not access the taxpayer’s individual account. Rather, the TSA would require the taxpayer to phone back on the appropriate line, as the TSA could not transfer the call. Ms. Dyer testified that the call centres are national and that the routing of all calls is computerized and performed centrally. When the call centres are closed, taxpayers receive an automated message at the 1-800 number. She also testified that the T1 or General Enquires line was not proposed as an essential service. When asked how they would manage this service in the event of the strike, Ms. Dyer testified that they would place an automated response on that line informing the caller that the service was not available and that they would direct the caller to online services or to the “self-serve option.” The union’s position is that the same approach could be taken for the GSTC telephone line in the event of a strike.

67 The CRA did not meet its burden of demonstrating, through convincing evidence, how, or if, the safety or security of the public would be at risk if the TSAs performing duties supporting the GSTC were to exercise their legal right to strike.

68 The modest credit amount and lack of urgency in recovering delayed or lost GSTC payments illustrates that it is not an income security program and that it cannot reasonably be understood to be the kind of immediate source of economic security that the Board has found essential in past jurisprudence. The bargaining agent maintained that the GSTC is not an essential service as defined in subsection 4(1) of the PSLRA and that positions that support it should not be included in an ESA.

69 The bargaining agent submitted that there was no evidence of the impact of delays in the payment of the GSTC and that I should not take judicial notice of it. Similarly, there was no evidence of different economic circumstances between now and 1978, and I should not take judicial notice of it either.

IV. Reply of the CRA

70 This is the CRA’s application, and it is asking the Board to determine the essential service and the number of positions. It is not the CRA’s intention to split its application in two.

71 The jurisprudence of the former Board has been recognized as helpful. However, it is not binding on the Board.

72 The bargaining agent has incorrectly described the burden of proof. The CRA must place evidence before the Board to show a “reasonable and sufficient basis” for a finding of an essential service (Parks Canada, at paragraph 180).

73 The amount of the GSTC is largely irrelevant. Nobody can assume that an amount of $300 or $400 is insignificant.

V. Reasons

74 The CRA has gotten ahead of itself in this application. It has combined the definition of the essential service with the level of that service to be provided and then proposed the number of positions required to deliver that level of an essential service. A review of the PSLRA and the jurisprudence shows that a more structured analysis is required. The essential service must be defined before the CRA can set the level of that service to provide. The bargaining agent is not in a position to negotiate the number of positions required until there is a clear definition of the essential service. Accordingly, I have set out a definition of the essential service and will remit the matter back to the parties. I will retain jurisdiction to address any issues that may arise after the CRA has determined the level of service to provide.

75 The first question to be addressed is what “service” is the employer seeking to be declared essential? The first step is to look at the description provided by the employer in its application, followed by an examination of the scope of the evidence tendered. The employer has described the service as specific “positions to ensure the continuation of the determination and distribution of GSTC payments”. The evidence tendered by the employer relates solely to the service performed by TSAs at call centres. As noted above, the PSLRA has moved beyond a position-based approach to essential services.  The evidence is clear that the role of the TSAs is limited to providing information about entitlements and making changes to some recipient information (discussed below). There was no evidence that the TSAs had any role in the “determination” of GSTC entitlements. The employer’s description of the service in its application and the evidence leads to the conclusion that the description of the service sought by the employer is the service provided at call centres (by TSAs) that ensure the distribution of GSTC payments.     

76 The second question to be answered in this application is whether the service provided at the call centres is a service “necessary for the safety or security of ... a segment of the public” (subparagraph 4(1) of the PSLRA).  The critical determination is whether all or part of the service provided by the TSAs is necessary for the continued distribution of the GSTC in the event of a strike.

77 The burden of proof is on the employer. The employer must provide evidence that convinces the Board that “there is a reasonable and sufficient basis for finding that a service is essential” (Parks Canada, at para. 180).

78 Both the current Board and its predecessor have had occasion to examine income-tested programs that provide benefits to individuals. The programs at issue in those cases were once called “social welfare” programs and are now commonly referred to as “income-support” programs. The GSTC is an income-tested tax credit program that reimburses low-income and middle-income taxpayers for payment of the GST or HST. It only differs from income-support programs such as the CCTB in its characterization as a “credit” for expenditures already made. However, it is not a reimbursement in the strict sense, since there is no requirement that taxpayers prove the amount of GST or HST that was paid during the quarterly period. In substance, the GSTC can be regarded as an income supplement for low and middle income taxpayers. For this reason, I find that the Board’s previous jurisprudence on income support programs to be relevant.       

79 The Board examined income support programs recently in Service Canada. The programs at issue in that ESA application were Employment Insurance (EI), Canada Pension Plan (CPP), and Old Age Security (OAS). After reviewing the decisions of the former Board on social welfare programs, the Board stated the following:

…

87. … 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.

…

80 The Board also noted in Service Canada its concern with the lack of direct evidence to establish the nature and extent of the impact that payments have on the economic security of a segment of the public. The same concern arises in this case. After reviewing the types of evidence that might have assisted the Board in knowing with certainty the economic dependency of clients and therefore how many clients would face a risk to their economic security if the service were not provided, the Board concluded as follows in Service Canada:

…

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 …

…

81 In this application, there is not much direct evidence of the dependence of low-income recipients on payment of the GSTC. The employer could have provided evidence such as statistical surveys on incomes and expenditures for low-income Canadians. The only direct evidence provided by the employer of a risk to economic security was the number of “comfort calls” received by the TSAs. The CRA submitted that it showed that, at least for the individuals calling, the payment was needed. The amounts of GSTC that can be received by low-income individuals or families are not, on their face, large: payments can range from $223 to $490 on a quarterly basis. However, that payment can amount to up to 8.1% of an individual or family income. The bargaining agent did not dispute the scenarios put forward by the CRA that led to these calculations.  The inference drawn by the employer from the number of “comfort calls” may be too broad. However, given that for some recipients the payment represents up to 8.1% of their income, I agree that calls from some of those individuals demonstrate that the payment is needed for their economic sustenance.

82 The bargaining agent has conceded that a payment to low-income taxpayers does not have to be the sole source, or even the dominant source, of income. The basic benefit for the CCTB for one child is approximately $112 per month and the bargaining agent has conceded that the continuation of this benefit is an essential service.  One can readily assume that the CCTB is not the sole source of income support for low-income taxpayers.

83 The bargaining agent submitted that since, unlike the CCTB, GSTC payments owing to a taxpayer could be withheld to pay outstanding debts to the CRA (for such things as unpaid taxes), the GSTC is not necessary for the sustenance of an individual or family. The fact that the payments are treated differently does not mean that the amounts normally received are not necessary for sustenance.

84 The bargaining agent also submitted that the required number of days to report a missing payment (10 days for the GSTC and 5 days for the CCTB) demonstrated that this was not necessary for sustenance. The difference in days may reflect the difference in priorities for the payments, but it does not demonstrate that the payments are not necessary for sustenance.    

85 It is impossible to determine the importance of the GSTC to an individual taxpayer at the end of a telephone line. I agree that it is possible that many of those who telephone may not depend on the payment for their economic security. However, the Board must err on the side of caution when determining economic security. Some of those callers may require the GSTC for sustenance. I therefore conclude that the continued distribution of GSTC payments is necessary for the economic security of a segment of the public.

86 The next step is to apply that broad description to the specific service provided by the TSAs at call centres. What services provided by the TSAs are necessary to ensure the continued distribution of GSTC payments? As noted in the Services Canada decision:

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.

87  The CRA has conceded that responding to calls from people checking on the status of a payment (“comfort calls”) are not essential. This reflects the fact that the continued distribution (or receipt) of GSTC payments is not affected by the response to these calls. The employer has submitted that the following are essential:

• Address changes;
• Changes in marital status and in the number of eligible children;
• Changes to direct deposit information;
• Change in income that might affect payment;
• Dealing with reports of death of recipient or recipient no longer resident in Canada; and
• Dealing with reports that a payment is not received. 

88 The only services or “major functions” provided by TSAs that will fit the description of the essential service are those that affect the continued distribution of GSTC payments. Address changes have an important impact on the distribution and receipt of the GSTC. If an address change is not made in a timely manner, it is a lengthy process to have a new cheque issued. This could result in economic hardship for a segment of the public. Responding to reports that a payment was not received could also have an impact on the security of a segment of the public. The TSA can put a trace on a payment which might result in resolving the issue. Changes to marital status, to income and to the number of eligible children (which can affect the amount of the payment) cannot be made by a TSA but must be made by filing a form with a local TSO. Most changes to direct deposit information cannot be made over the telephone by a TSA. In any event, if CRA cannot make a direct deposit payment, it simply sends the cheque to the address on file, resulting in no interruption to the distribution of the GSTC payment. It was not clear from the evidence if a TSA is able to make changes relating to the death of a recipient or a recipient that is no longer a resident of Canada. In any case, the failure to process these changes in the event of a strike would simply result in an over-payment which could be recovered by the CRA.

89 Consequently, the services provided by the TSA that I have determined to be essential are the following:

• Address changes; and
• Responding to reports of a payment not received.

90 The description of the essential service is as follows:

The following services that ensure the continued distribution of the Goods and Services Tax Credit (GSTC) and are delivered by the Taxpayer Service Agents (TSA) at call centres are necessary for the safety or security of the public:

Responding to telephone enquiries for changes to addresses of GSTC recipients and to reports of GSTC payments not received.

91 The parties have already agreed that all services related to the CCTB are to be included in the ESA.

92 The CRA has already made its position known on the level of service to provide. However, the CRA determined the level without knowing the description of the essential service. I will therefore refer the matter back to the employer to determine the level of service to be provided in the event of a strike based on the above description of the essential service.    

93 The parties must then negotiate the number of positions needed to deliver the required level of the essential service. The bargaining agent was not in a position to make representations to the employer on the appropriate number of positions until it knew the definition of the essential service and the level of the essential service. Accordingly, the parties will have to enter into further negotiations on the number of positions based on the definition of the essential service.  

94 I will retain jurisdiction to address any issues that arise after the employer has determined the level of service to provide.   

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

96 The Essential Services Agreement (ESA) for the SP group will include the following provision:

The following services that ensure the continued distribution of the Goods and Services Tax Credit (GSTC) and are delivered by the Taxpayer Service Agents (TSA) at call centres are necessary for the safety or security of the public:

Responding to telephone enquiries for changes to addresses of GSTC recipients and to reports of GSTC payments not received.

97 The Board directs the applicant 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 PSLRA, and to so inform the respondent, within 30 days of the date on which this decision is issued.

98 The Board further directs the parties to resume negotiations and to make every reasonable effort to negotiate the remaining content of the ESA for the call centres.

99 The Board remains seized of all other matters not resolved by the parties.

September 21, 2010.

Ian R. Mackenzie,
Vice-Chairperson