FPSLREB Decisions

I. Application before the Board

1  On June 26, 2008, the Public Service Alliance of Canada (“the bargaining agent”) served notice to bargain on the House of Commons (“the employer”) on behalf of the Reporting Sub-Group and Text Processing Sub-Group in the Parliamentary Programs Group (“the bargaining unit”) under section 37 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c.33 (2nd Supp.)(“the PESRA”). The last collective agreement for the bargaining unit expired on June 30, 2008.

2 The bargaining unit is composed of 68 employees of the Reporting and Publishing Services of the House of Commons working in the following sections: transedition, edition, publishing and quality assurance, and proofreading. Fifty-five percent of those employees are full-time indeterminate employees, and 45% are seasonal certified indeterminate employees (SCI). An SCI employee’s annual work schedule is closely dependent on the annual sessions of the House of Commons.

3  The parties met for six negotiation sessions between February 3, 2009 and June 5, 2009. On June 8, 2009, the bargaining agent filed for arbitration under section 50 of the PESRA. The employer submitted its response on June 15, 2009.

4 The bargaining agent selected Joe Herbert from the panel of persons representative of the interests of the employees to be a member of the Board. The employer selected Ron Leblanc from the panel of persons representative of the interests of the employer. The Chairperson of the Public Service Labour Relations Board (“the Board”) appointed me as Chairperson for these proceedings.

5 The Chairperson of the Board established the terms of reference for these proceedings in Public Service Alliance of Canada v. House of Commons, 2009 PSLRB 88, which consisted of the parties’ proposals for the following collective agreement articles and appendices:

Article 2	Interpretation and Definitions
Article 19	Designated Paid Holidays
Article 20	Other Leave with or without Pay
Article 21	Sick Leave with Pay
Article 24	Hours of Work and Overtime
Article 31	Suspension and Discipline
Article 38	Duration
Article 40	Part-time and Seasonal Certified Indeterminate (SCI) Employees
Article 41	Seniority
Appendix A	Rates of Pay
Appendix C	Memorandum of Agreement respecting Hours of Work — Earning credits on an Hourly Basis
Appendix F	Memorandum of Agreement — Seasonal Certified Indeterminate (SCI) Employees
New Article	Social Justice Fund
New Appendix	Memorandum of Agreement in respect of Employees in the Publishing Services

II. Reasons

6 Section 53 of the PESRA sets out as follows the factors that the Board must consider in rendering its award:

…

53. In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, the Board shall consider

(a) the needs of the employer affected for qualified employees,

(b) the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations of employees,

(c) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered, and

(d) any other factor that to it appears to be relevant to the matter in dispute,

and, so far as consistent with the requirements of the employer, the Board shall give due regard to maintaining comparability of conditions of employment of employees with those that are applicable to persons in similar employment in the federal public administration.

…

7 The Board has taken those factors into consideration in weighing the proposals made by the parties.

8 These reasons also take into consideration the applicable provisions of the Expenditure Restraint Act, S.C. 2009, c.2, s. 393 (“the ERA”). The Board is satisfied that the award that it is rendering on the duration of the collective agreement and the increases to rates of pay in Appendix A is consistent with the ERA.

9 Under subsection 56(1) of the PESRA, I am the only signatory of this arbitral award as the Chairperson of the panel:

56.(1) An arbitral award shall be signed by the member of the Board who is not a member selected from a panel appointed under section 47 and copies thereof shall be transmitted to the parties to the dispute and no report or observations thereon shall be made or given by either of the members selected from a panel appointed under section 47.

10 Subsections 56(2) and (3) of the PESRA govern the process by which the members of the Board decide the arbitral award as follows:

(2) Subject to subsection (3), a decision of the majority of the members of the Board in respect of the matters in dispute shall be the arbitral award in respect of the matters in dispute.

(3) Where the majority of the members of the Board in respect of the matters in dispute cannot agree on the terms of the arbitral award to be rendered in respect thereof, the decision of the member of the Board who is not a member selected from a panel appointed under section 47 shall be the arbitral award in respect of the matters in dispute.

11 For a number of the issues in dispute, the Chairperson’s decision constitutes the Board’s arbitral award.

12 In what follows, revised or new language for the collective agreement is indicated in bold. For proposed revisions that remove existing language from the collective agreement without replacement, strike-through is used.

A. Article 2 - Interpretation and Definitions

13 The bargaining agent proposed amending the last sentence of clause 2.01(r) to read as follows:

Seasonal certified indeterminate employees are subject to be temporarily struck-off strength at anytime when there is no work.

14 Even though the employer argued that the bargaining agent’s proposal is of no use because the employer’s practice is not to strike-off-strength employees when there is work to be done, the Board believes that the actual language needs to be narrowed to offer reasonable protections to employees. Abundant evidence was adduced by the bargaining agent to support the issue that employees feel vulnerable and unprotected with the actual provisions. The employer did not adduce any evidence that the language proposed by the bargaining agent would be of significant inconvenience. The award of the Board is to amend the last sentence of clause 2.01(r) to read as follows:

Seasonal certified indeterminate employees are subject to be temporarily struck-off strength when there is a shortage of work.

B. Article 19 - Designated Paid Holidays

15 The bargaining agent proposed adding “Family Day” as a designated paid holiday.

16 The award of the Board is that the existing article 19 will remain unchanged.

C. Article 20 - Other Leave with or without Pay

(i) Bereavement Leave with Pay

17 The bargaining agent proposed increasing the basic bereavement leave entitlement from “five (5) consecutive calendar days” to “five (5) working days” in the case of the death of a member of the immediate family and from “one (1) day” to “two (2) days” in the case of the death of a grandparent, grandchild, son-in-law, daughter-in-law, brother-in-law or sister-in-law (clauses 20.02(a) and (c)).

18 The award of the Board is to modify clause 20.02 as follows while renewing clauses 20.02(a) through (c):

20.02 Bereavement Leave With Pay

For the purpose of this clause, immediate family is defined as father, mother, (or alternatively stepfather, stepmother or foster parent), brother, sister, spouse (including common-law spouse resident with the employee), child (including child of common-law spouse), step-child or ward of the employee, grandchild, father-in-law, mother-in-law, and relative permanently residing in the employee's household or with whom the employee permanently resides.

(ii) Leave with Pay for Family-Related Responsibilities

19 The bargaining agent proposed increasing the maximum leave with pay for family-related responsibilities available to an employee in a calendar year from “five (5) days” to “eight (8) days” (clause 20.11).

20 The award of the Board is that the existing clause 20.11 will remain unchanged.

(iii) Leave with Pay for Marriage

21 The bargaining agent proposed eliminating the current provision for marriage leave with pay under clauses 20.15(a) and (b) and replacing it with the following provision:

20.15 Employees shall be credited a one-time entitlement of five (5) days of vacation leave with pay.

22 The award of the Board is that the existing clauses 20.15(a) and (b) will remain unchanged.

(iv) Volunteer Leave

23 The bargaining agent proposed introducing a new provision in clause 20.22 that would add a single period of up to seven hours of leave with pay for reasons of a personal nature to be granted in each fiscal year.

24 The award of the Board is that the existing clause 20.22 will remain unchanged.

D. Article 21 - Sick Leave with Pay

25 The bargaining agent proposed adding a new provision governing the production of medical certificates as follows:

21.09 Medical Certificates

(a) An employee may be asked to produce a medical certificate only for periods of absence in excess of three (3) consecutive days.

(b) Employees shall be reimbursed by the Employer for medical certificates required above.

26 The award of the Board is that the existing article 21 will remain unchanged.

E. Article 24 - Hours of Work and Overtime

(i) Hours of Work

27 The bargaining agent proposed removing the adjective “normal” from the definitions of week, day and days of rest, requiring the employer to always schedule seven-hour days and to provide Saturday and Sunday off without restriction (clauses 24.01 and 24.02).

28 The award of the Board is that the existing clauses 24.01 and 24.02 will remain unchanged.

(ii) Overtime

29 The bargaining agent proposed several changes to the clauses related to assigning overtime work (clause 24.09), as follows:

- remove the qualifier “operational requirements” in making efforts to avoid excessive overtime;

- assign overtime work based on seniority when there are an excessive number of volunteers;

- remove the employer’s protection from the additional costs resulting from the application of this clause;

- require the employer to provide at least four hours’ notice of overtime to be worked and pay the employee a minimum of two (2) hours of overtime where the employee is subsequently advised with less than four (4) hours’ notice that the overtime work is no longer required; and

- require the employer to make every reasonable effort to inform the employee of the anticipated duration of the overtime assignment.

30 The award of the Board is that the existing clause 24.09 will remain unchanged.

(iii) Transportation

31 According to clause 24.14 of the collective agreement, an employee who has not been issued a House of Commons parking permit and who works overtime after public transportation has been suspended or who leaves work after 22:00 is provided with a taxi voucher or taxi fare when required. The employer proposed that that benefit would not apply to an employee who leaves work after 22:00 if it is the employee’s regular scheduled shift. The bargaining agent proposed extending the benefit to employee’s with a House of Commons parking permit but no vehicle on site. The bargaining agent also proposed adding the following new provision to clause 24.14:

An employee that is not assigned a parking spot in a building where that employee is working, or in a location immediately adjacent, shall be provided, prior to 6:00 p.m., fifteen (15) minutes at no loss in pay to move their vehicle to a parking spot in a building where the employee is working, or in a location immediately adjacent.

32 The award of the Board is that the existing clause 24.14 will remain unchanged.

(iv) Shift Premium

33 Both parties proposed deleting the words “Effective April 18, 2008” from clause 24.15. The bargaining agent also proposed that the shift premium be paid for all hours worked between 17:00 and 08:00. The bargaining agent also proposed that an employee who is required to change shifts receive at least seven working days notice in advance of the change.

34 The award of the Board is that the words “Effective April 18, 2008” will be deleted from clause 24.15 and that the balance of the existing clause 24.15 will remain unchanged.

(v) Workload Scheduling and New Appendix

35 According to clause 24.17 of the collective agreement, hours of work are scheduled to meet low, regular and peak workloads. The bargaining agent proposed deleting clause 24.17 entirely and replacing it with a new appendix. The new appendix contains the same language as clause 24.17 with two exceptions, namely, that: (1) the provisions of the appendix or of clause 24.17 would apply only to employees working in publishing services; and that (2) some of the provisions would now apply to SCI employees.

36 The award of the Board is that the existing clause 24.17 will remain unchanged and that a new appendix will not be added to replace clause 24.17.

(vi) Weekend Premium

37 The bargaining agent proposed deleting the words “Effective May 7, 2008” from clause 24.18. The employer agreed with the proposed change.

38 The award of the Board is that the words “Effective May 7, 2008” will be deleted from clause 24.18.

F. Article 31 – Suspension and Discipline

39 According to clause 31.05 of the collective agreement, any document or statement related to disciplinary action shall be destroyed two years after the disciplinary action was taken provided that no further action had been taken during that period. The employer proposed that the period be extended by the length of any period of leave without pay. The bargaining agent proposed adding clause 31.06, which would read as follows:

Any part of this Agreement shall have the right to refuse compliance with any direction, proposal or counsel to falsify a record or make a false record.

40 The award of the Board is that the existing article 31 will remain unchanged.

G. Article 38 – Duration

41 The bargaining agent proposed that the award should be in force for two years, from July 1, 2008 to June 30, 2010. The employer proposed that, “[u]nless otherwise expressly stipulated” in the collective agreement, the award should be in force from the date of the award to June 30, 2011.

42 The award of the Board is as follows:

38.02 Unless otherwise expressly stipulated in this Agreement, the provisions of this Agreement shall become effective on the date of the award and shall remain in force until June 30, 2011.

H. Article 40 – Part-time and Seasonal Certified Indeterminate (SCI) Employees

43 The bargaining agent proposed that leave entitlements for the following types of leave not be proportional for part-time employees: leave with pay for family-related responsibilities, court leave, injury-on-duty leave, marriage leave with pay, leave with or without pay for other reasons, and volunteer leave. The bargaining agent also proposed that part-time and SCI employees have the option of being compensated via direct deposit.

44 The award of the Board is that the following provision will be added to clause 40.01, and the balance of the existing clause will remain unchanged.

Part-time and Seasonal Certified Indeterminate employees shall have the option of being compensated via direct deposit.

I. Appendix A – Rates of Pay

45 The bargaining agent and the employer agreed that all rates of pay should be increased by 1.5 percent effective July 1, 2008 and by 1.5 percent effective July 1, 2009.

46 Consistent with its proposal on the duration of the award, the employer proposed to increase rates of pay by a further 1.5 percent effective July 1, 2010.

47 The award of the Board is that all rates of pay will be increased by 1.5 percent effective July 1, 2008, by 1.5 percent effective July 1, 2009 and by 1.5 percent effective July 1, 2010.

J. Appendix C – Memorandum of agreement: earning credits on an hourly basis

48 The bargaining agent withdrew its proposal to amend Appendix C. The award of the Board is that the existing Appendix C will remain unchanged.

K. Appendix F – Memorandum of agreement on SCI employees

49 The bargaining agent proposed substantial changes to Appendix F of the collective agreement, which includes specific working conditions for SCI employees. Those changes are aimed at improving work stability and work predictability for SCI employees. The bargaining agent proposed that Appendix F be amended as follows:

The conditions listed below are to be applied/followed to obtain or lose the status of Seasonal Certified Indeterminate Employee.

1.       A person who works seven hundred (700) hours in one (1) calendar year will obtain the status of seasonal certified indeterminate employee effective January 1st of the year following the year in which the seven hundred (700) hour threshold was surpassed. The collective agreement and the terms and conditions of employment for SCI employees will begin on the first (1st) day that employment resumes in that year.

2.       The Employer shall not artificially create a break in service or reduce a person’s scheduled hours in order to prevent a person from attaining SCI status, unless said person has requested such a reduction or break in service.

2. 3.   A SCI employee who works less than seven hundred (700) hours in two (2) consecutive years will no longer be recognized as a SCI employee effective December 31st of the second (2nd) year in which the SCI employee did not reach the threshold of seven hundred (700) hours for those two (2) consecutive years.

3. 4.   Due to the irregularity of work available during election and prorogation years, years with less than one hundred and twenty (120) sitting days will be excluded for the purpose of losing status. Consequently, if a SCI employee works less than seven hundred (700) hours during a year with less than one hundred and twenty (120) sitting days and the threshold of seven hundred (700) has not been met for that year, this discrepancy will not be used to lose the status of a SCI employee.

4.       Notwithstanding clauses 1 and 2 above, when a person works less than seven hundred (700) hours in an election year, and works more than seven hundred (700) hours in the year preceding the election year and in the year following this election year, SCI employee status is granted on January 1st following this three (3) year period.

5.       Notwithstanding clauses 1 and 2 above, when a SCI employee works less than seven hundred (700) hours in the year preceding the election year and in the year following this election year, SCI employee status is lost on January 1st following this three (3) year period.

5.       Leave granted under Article 12.10 and 12.11 shall be considered hours worked for the purposes of determining if an employee has worked 700 hours in the calendar year in which the leave is granted.

6.       A calendar year in which an SCI employee:

(a) is granted maternity leave without pay, parental leave without pay, leave without pay for the care and nurturing of pre-school age children, leave without pay for the long-term care of immediate family, injury-on-duty leave or leave without pay for other reasons, for more than twenty (20) sitting days;

or

(b) accesses disability benefits for more than twenty (20) sitting days,

or

(c) is certified sick for more than twenty (20) sitting days,

shall be excluded for the purpose of losing status in accordance with paragraph 3 above.

7.       Paid leave granted to SCI employees shall be counted as hours worked for the purposes of paragraphs 1 and 3 above.

8.       In the event that an SCI refuses ten (10) consecutive shifts in a calendar year, the employee shall lose SCI status, provided that the ten (10) consecutive shifts are assigned on sitting days.

6.9.   Local Joint Consultation Committee

The Employer will provide twice a year, statistical information to the Local Union concerning the hours worked by uncertified and by seasonal certified indeterminate employees. The data will be provided in July and January of each year for the period covering the previous six (6) months. Persons who believe that they should have been included in the bargaining unit, under the terms of this Memorandum of Agreement, or that their hours of work were incorrectly recorded, may refer the matter to the Local Joint Consultation Committee for correction.

7.10.   Vacant SCI positions will be filled through the normal staffing process of the House of Commons. The successful candidate will be covered by the collective agreement and this MOU on the first day or work. The Employer may appoint persons with the status of SCI employee at any time.

8.11.   Overtime compensation

Seasonal Certified Indeterminate (SCI) employees shall be paid for overtime hours worked except where, at the request of an employee and with the approval of the Employer, overtime may be compensated in equivalent time off in the following manner:

(a) Overtime can only be compensated in equivalent time off during periods of Parliamentary inactivity or reduced activity.

(b) Compensatory leave earned in a calendar year and outstanding on December 15th of the year in which it is earned, will be either paid in cash or scheduled by the Employer during the next Parliamentary recess.

(c) Overtime compensation worked between December 15th and 31st shall either be carried over into the following year or taken in equivalent time off during the end of the year recess period subject to (a) above.

(d) Overtime compensated in equivalent time off shall not be considered in the calculation of:

(i) Continuous employment;

(ii) Accumulation of sick leave credits;

(iii) The hours worked to obtain and to maintain the status of SCI;

(iv) Any other benefits under this agreement.

Subject to this Agreement, an employee’s request for compensatory leave shall not be unreasonably denied.

12.     Hours of Work

(a) Assigning of Work Hours

i) When the House of Commons is in session, straight-time hours of work beyond those scheduled for full-time indeterminate employees shall be assigned by seniority to part-time and seasonal certified indeterminate employees in the following order:

(a) Qualified employees who normally perform the duties where the hours are to be worked

(b) All other qualified employees in the bargaining unit.

ii) When the House of Commons is not in session the Employer will follow the preference order in (a) i) above subject to employees’ availability.

(b) General

(i) The Employer shall make every reasonable effort to maximize scheduled hours for SCI employees.

ii) If, after making every reasonable effort consistent with i) above, the Employer is unable to schedule hours for an SCI employee, the Employer shall investigate temporary work opportunities with other Parliamentary Employment and Staff Relations Act (PESRA) employers. If such opportunities exist they shall be identified to SCI employees without scheduled hours.

50 The employer proposed the following two changes to Appendix F of the collective agreement. The first change would be inserted after clause (c) of article 8, and the second change would be inserted after article 8. Those changes read as follows:

(d) Prior to December 15th of every year or upon employment if hired during the year, employees will inform the Employer if they wish, for the following calendar year or the current year for those hired during the year, to be compensated in time off as per this article;

…

9. In the event that an SCI refuses ten (10) consecutive shifts in a calendar year, the employee shall lose SCI status.

51 As for article 2, the bargaining agent adduced evidence to support that SCI employees feel vulnerable and unprotected with the actual provisions of Appendix F. The employer did not adduce evidence that the language proposed by the bargaining agent would be of significant inconvenience. The award of the Board is that Appendix F will be substantially amended to strengthen the protection offered to SCI employees. Among other things, the new wording will protect SCI status when the House of Commons sits less than 110 days in a year and protect SCI status for years in which an employee would be on certain types of long-term approved leave and use seniority when assigning work. Appendix F will read as follows:

The conditions listed below are to be applied/followed to obtain or lose the status of Seasonal Certified Indeterminate Employee.

1. A person who works seven hundred (700) hours in one (1) calendar year will obtain the status of seasonal certified indeterminate employee effective January 1st of the year following the year in which the seven hundred (700) hour threshold was surpassed. The collective agreement and the terms and conditions of employment for SCI employees will begin on the first (1st) day that employment resumes in that year.
   
   
2. A SCI employee who works less than seven hundred (700) hours in two (2) consecutive years will no longer be recognized as a SCI employee effective December 31st of the second (2nd) year in which the SCI employee did not reach the threshold of seven hundred (700) hours for those two (2) consecutive years.
   
   
3. Due to the irregularity of work available during election and prorogation years, years with less than one hundred and ten (110) sitting days will be excluded for the purpose of losing status. Consequently, if a SCI employee works less than seven hundred (700) hours during a year with less than one hundred and ten (110) sitting days, this discrepancy will not be used to lose the status of a SCI employee.
   
   
4. Leave granted under Article 12.10 and 12.11 shall be considered hours worked for the purposes of determining if an employee has worked seven hundred (700) hours in the calendar year in which the leave is granted.
   
   
5. A calendar year in which an SCI employee:
   
   (a) is granted maternity leave without pay, parental leave without pay, leave without pay for the care and nurturing of pre-school age children, leave without pay for the long-term care of immediate family, or injury-on-duty leave, for more than twenty (20) sitting days;
   
   or
   
   (b) accesses disability benefits for more than twenty (20) sitting days,
   
   or
   
   (c) is certified sick for more than twenty (20) sitting days,
   
   shall be excluded for the purpose of losing status in accordance with paragraph 3 above.
   
   
6. Paid leave granted to SCI employees shall be counted as hours worked for the purposes of paragraphs 1 and 3 above.
   
   
7. In the event that an SCI employee refuses ten (10) consecutive shifts in a calendar year, the employee shall lose SCI status, provided that the ten (10) consecutive shifts are assigned when the House or the Committees of the House sit.
   
   
8. Local Joint Consultation Committee
   
   The Employer will provide twice a year, statistical information to the Local Union concerning the hours worked by uncertified and by seasonal certified indeterminate employees. The data will be provided in July and January of each year for the period covering the previous six (6) months. Persons who believe that they should have been included in the bargaining unit, under the terms of this Memorandum of Agreement, or that their hours of work were incorrectly recorded, may refer the matter to the Local Joint Consultation Committee for correction.
9. Vacant SCI positions will be filled through the normal staffing process of the House of Commons. The successful candidate will be covered by the collective agreement and this MOU on the first day or work. The Employer may appoint persons with the status of SCI employee at any time.
   
   
10. Overtime compensation
    
    Seasonal Certified Indeterminate (SCI) employees shall be paid for overtime hours worked except where, at the request of an employee and with the approval of the Employer, overtime may be compensated in equivalent time off in the following manner:
    
    (a) Overtime can only be compensated in equivalent time off during periods of Parliamentary inactivity or reduced activity.
    
    (b) Compensatory leave earned in a calendar year and outstanding on December 15th of the year in which it is earned, will be either paid in cash or scheduled by the Employer during the next Parliamentary recess.
    
    (c) Overtime compensation worked between December 15th and 31st shall either be carried over into the following year or taken in equivalent time off during the end of the year recess period subject to (a) above.
    
    (d) Overtime compensated in equivalent time off shall not be considered in the calculation of:
    
    

    (i) Continuous employment;

    (ii) Accumulation of sick leave credits;

    (iii) The hours worked to obtain and to maintain the status of SCI;

    (iv) Any other benefits under this agreement.

    Subject to this Agreement, an employee’s request for compensatory leave shall not be unreasonably denied.

11. Hours of Work
    
    (a) Assigning of Work Hours
    
    When the House of Commons is in session, straight-time hours of work beyond those scheduled for full-time indeterminate employees shall be assigned by seniority to part-time and seasonal certified indeterminate employees in the following order:
    
    

    (i) Qualified employees who normally perform the duties where the hours are to be worked

    (ii) All other qualified employees in the bargaining unit.

    (b) General
    
    When there is work available, the Employer shall make every reasonable effort to maximize scheduled hours for SCI employees.

L. New Article - Social Justice Fund

52 The bargaining agent proposed that the collective agreement include a new article as follows:

The Employer shall contribute one cent (1¢) per hour worked to the PSAC Social Justice Fund and such contribution will be made for all hours worked by each employee in the bargaining unit, commencing on the date that the PSAC Social Justice Fund receives charitable status from the Canada Customs and Revenue Agency. Contributions to the Fund will be made quarterly, in the middle of the month immediately following completion of each fiscal quarter year, and such contributions remitted to the PSAC National Office. Contributions to the Fund are to be utilized strictly for the purposes specified in the Letters Patent of the PSAC Social Justice Fund.

53 The award of the Board is that the collective agreement shall not include the proposed new article.

III. General

54 The Board will remain seized of this matter for a period of sixty (60) days in the event that the parties encounter any difficulties in implementing the arbitral award.

January 27, 2010.

Renaud Paquet
Board Member
Chairperson of the panel