FPSLREB Decisions

I. Application before the Board

1 On April 18, 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 Operational Group (OPG) bargaining unit, under section 37 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp.) (PESRA). The last collective agreement for the OPG expired on April 20, 2008.

2 The OPG bargaining unit comprises approximately 305 employees (310 as of October 2009). The bargaining unit certificate was issued by the Public Service Staff Relations Board on May 8, 1987.

3 The bargaining unit is composed of three sub groups: Restaurant Services, Printing Services and Operations. Functions performed by bargaining unit members include food preparation, distribution and serving; dishwashing; procurement; cashier duties; bartending; waiting; press operations; electronic printing; bindery operations; technical support; cleaning; repairs and maintenance; shipper-receiver duties; messenger duties; transportation services; trades; and material handling.

4 The parties met for five negotiation sessions between January 23 and April 20, 2009. On April 21, 2009, the bargaining agent filed for arbitration under section 50 of the PESRA. The employer submitted its additional matters in dispute on April 27, 2009 and revised its submission on May 5, 2009.

5 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 for the purpose of this arbitration. 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.

6 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 78, which consists of the parties’ proposals for the following collective agreement articles and appendices:

Article 2	Interpretation and Definitions
Article 11	Use of Employer Facilities
Article 18	Vacation Leave with Pay
Article 19	Designated Paid Holidays
Article 20	Other Leave with or without Pay
Article 21	Sick Leave with Pay
Article 24	Hours of Work
Article 28	Shift Premiums
Article 31	Suspension and Discipline
Article 38	Part time Employees
Article 40	Seniority
Article 44	Duration
Appendix “A”	Rates of Pay
Appendix “B”	Uniform Entitlements
Appendix “C”	Memorandum of Agreement Respecting Clause 24.09 — Rest Periods and Clause 24.02 — Scheduling of Unpaid Meal Periods
Appendix “E”	Memorandum of Agreement Respecting Seasonal Certified Indeterminate (SCI) Employees
New	Memorandum of Agreement in Respect of Employees in the Operations Subgroup Subject: Shift Assignment for Operations Workers
New	Social Justice Fund

II. Reasons

7 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.

…

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

9 The Board has also taken into consideration the applicable provisions of the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 (ERA). The bargaining agent and the employer were in agreement on issues before the Board concerning the application of the ERA. The Board is satisfied that the award that it is rendering for the duration of the collective agreement and for the increases to rates of pay in Appendix “A” is consistent with the ERA.

10 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.

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

(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.

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

13 In what follows, revised or new language for the collective agreement is indicated in bold.

A. Article 2: Interpretation and Definitions

14 The bargaining agent proposes that clause 2.01(r) of the collective agreement be amended so that Seasonal Certified Indeterminate (SCI) employees may be temporarily struck-off strength only due to a shortage of work.

15 The employer proposes to maintain the status quo.

16 The award of the Board is to modify clause 2.01(r) of the collective agreement by incorporating the change proposed by the bargaining agent. Clause 2.01(r) shall read as follows:

2.01
(r) Seasonal Certified Indeterminate Employee (SCI) (Full-time or Part-time) means employees working ordinarily more than seven hundred (700) hours but less than eighteen hundred and twenty (1820) hours in a calendar year. SCI employees may be required to work on shifts and weeks of more or less than thirty-five (35) hours pursuant to Appendix “E” of this Agreement. Scheduling of hours of work is subject to operational requirements and the collective agreement. The terms and conditions of employment are determined by Article 38 of the collective agreement and Appendix “E”. Seasonal certified indeterminate employees are subject to be temporarily stuck-off strength due to a shortage of work.

B. Article 11: Use of Employer Facilities

17 The bargaining agent makes the following two proposals with respect to article 11 of the collective agreement: the use and provision of bulletin boards, and allowing Public Service Alliance of Canada (PSAC) representatives access to the employer’s premises.

18 The employer proposes to maintain the status quo.

19 The award of the Board is to amend clause 11.03 of the collective agreement to read as follows:

11.03 An accredited representative of the PSAC shall have reasonable access to the Employer’s premises to assist in the resolution of a complaint or grievance and to attend meetings called by management. Permission to enter the premises shall, in each case, be obtained from the Employer.

C. Article 18: Vacation Leave with Pay

20 The bargaining agent proposes to accelerate the increase to employees’ vacation leave entitlement in clauses 18.02(a) and (b) of the collective agreement and to increase employees’ vacation leave entitlement after 28 years of continuous service in clause 18.02(d).

21 The employer proposes to maintain the status quo.

22 The Board has determined that article 18 of the collective agreement shall remain unchanged.

D. Article 19: Designated Paid Holidays

23 The bargaining agent proposes the addition of Family Day as a designated paid holiday.

24 The employer proposes to maintain the status quo.

25 The Board has determined that article 19 of the collective agreement shall remain unchanged.

E. Article 20: Other Leave with or without Pay

1. Clause 20.02: Bereavement Leave with Pay

26 The bargaining agent proposes to increase the 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 grandchild, son-in-law, daughter-in-law, brother-in-law or sister-in-law (clauses 20.02(a) and (c) of the collective agreement).

27 The employer proposes to maintain the status quo.

28 The award of the Board is to modify clause 20.02 of the collective agreement 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, grandparent, legal ward and relative permanently residing in the employee's household or with whom the employee permanently resides.

2. Clause 20.12: Leave with Pay for Family-Related Responsibilities

29 The bargaining agent proposes to increase the maximum leave with pay granted to an employee in a calendar year from “five (5) days” to “eight (8) days.”

30 The employer proposes to maintain the status quo.

31 The Board has determined that clause 20.12 of the collective agreement shall remain unchanged.  

3. Clause 20.16: Leave with Pay for Marriage

32 The bargaining agent proposes to eliminate the current provision for marriage leave with pay under clauses 20.16(a) and (b) of the collective agreement and to replace it with a one-time credit of 35 hours of vacation leave with pay.

33 The employer proposes to maintain the status quo.

34 The Board has determined that clause 20.16 of the collective agreement shall remain unchanged.

4. Clause 20.20: Volunteer Leave

35 The bargaining agent proposes to rename clause 20.20 of the collective agreement to “Volunteer and Personal Leave” and proposes the addition of one day of leave with pay for reasons of a personal nature.

36 The employer proposes to maintain the status quo.

37 The Board has determined that clause 20.20 of the collective agreement shall remain unchanged.

F. Article 21: Sick Leave with Pay

38 The bargaining agent proposes to increase the amount of sick leave credits earned by an employee each month from “eight decimal seven five (8.75) hours” to “nine decimal ninety-two (9.92) hours.”It also seeks to modify the provision governing the production of a medical certificate for periods of absence in excess of three days and to require the employer to reimburse employees for the cost of a medical certificate.

39 The employer proposes to maintain the status quo.

40 The Board has determined that article 21 of the collective agreement shall remain unchanged.

G. Article 24: Hours of Work and Overtime

41 The bargaining agent proposes the following amendments and deletions to clause 24.04 of the collective agreement: (i) establish 15 days in advance a master shift schedule for a 56-day period; (ii) in the event of a vacant shift, the employer shall be required to canvass all employees covered by the schedule for volunteers, and where more than 1 employee selects the same shift, seniority shall be the determining factor; (iii) increase the amount of time off between shifts from 10 hours to 12 hours; (iv) require the employer to provide 7 days’ notice of change to an employee’s scheduled hours of work and where 7 days’ shift-change notice is not provided, the employee shall be paid at time-and-a-half for the first 7 hours worked and double time after that; (v) require the employer to take reasonable efforts to ensure that an employee returns to his or her original shift schedule and scheduled days of rest for the duration of the master shift schedule; and (vi) delete clause 24.07, which provides that schedules shall normally be posted one week in advance.

42 The employer proposes to maintain the status quo.

43 It is abundantly clear that the views of the parties are diametrically opposed on the merits and feasibility of a seniority-based system within the collective agreement. In Public Service Alliance of Canada v. the House of Commons, 2008 PSLRB 18, the Board decided that it would not revise the collective agreement to incorporate the seniority-based proposals made by the bargaining agent even though it believed that the proposals had merit. Instead, the parties were urged to undertake a serious joint effort, in good faith, to examine how seniority could be formally integrated into the allocation of hours of work and shifts. The Board also concluded that, if those efforts were not successful, it might be appropriate for the Board to intervene in the future.

44 The evidence produced at this hearing indicated that, at a meeting of the Joint Union-Management Consultation Committee held on May 20, 2009, rotational shift concerns were discussed. However, according to the bargaining agent, the employer refused to enter into meaningful discussions and was adamant that seniority was not an option with respect to hours of work and shift assignments. It became very clear during discussions with the employer that it was philosophically opposed to incorporating seniority for hours of work and shift scheduling into the collective agreement. In subsequent discussions, the employer conceded to introducing of seniority with a narrow application for a select group of employees. Although the employer argued that a seniority-based system would incur significant overtime costs and that it would create problems for recruitment and retention, it provided no evidence. The employer also argued that the right to schedule employees is based on operational needs and is an entrenched management right.

45 Seniority-based systems are common in labour agreements in the private sector and have been introduced to a number of bargaining units within the federal public administration. Although the term “seniority” has been viewed by some employers as an infringement of their authority to manage the workforce, assign duties, schedule shifts and grant promotions, that is not necessarily the case. The Board recognizes the employer’s right to manage, schedule shifts and classify positions. Seniority can also be characterized as the scope of capabilities through years of experience. In other words, through his or her years of service, an employee attains a breadth of knowledge and expertise as a result of his or her tenure with the organization. Through time, an employee becomes a more valuable asset, with more capabilities, and should be treated accordingly.  

46 The introduction of limited seniority gives a measure to an employee not in terms of compensation but in recognition of his or her value and contribution to the organization. The lack of tenure and the continuous churn of employees between departments, crown corporations and other federal public administrations has been recently acknowledged as a serious matter by senior government officials.  

47 The use of a limited seniority-based system for hours of work and shift selection is not an infringement on management rights. The scheduling of shifts and the assignment of hours of work to employees will now be done by seniority.

48 The award of the Board is to renew article 24.04 of the collective agreement and to add clause 24.04(b)(i) as follows :   

 Clause 24.04(b)(i)

In the event of a vacant shift, the Employer will reassess its scheduling requirement. Should the shift still be required, the Employer will canvass all qualified employees covered by the schedule for volunteers. Should more than one employee select the same shift, seniority, pursuant to clause 40.01, shall be the determining factor to allocate the shift.

1. Clause 24.16: Assignment of Overtime Work

49 The bargaining agent proposes the following: (i) remove the qualifier, “subject to operational requirements” to avoid excessive overtime; and (ii) change the overtime compensation for double time for each hour of overtime worked from 10 hours worked to 9 hours in a 24-hour period.

50 The employer proposes to maintain the status quo.

51 The Board has decided that clause 24.16 of the collective agreement shall remain unchanged.

2. Clause 24.21: Transportation

52 The bargaining agent proposes the following: (i) extend the entitlement to a taxi voucher to an employee who has been issued a parking permit but who may not have a vehicle on site; and (ii) remove the requirement that an employee work at least four contiguous hours of overtime to be entitled to a taxi voucher.

53 The employer proposes to maintain the status quo.

54 The Board has decided that clause 24.21 of the collective agreement will remain unchanged.

H. Article 28: Shift Premiums

55 The bargaining agent proposes to change the time that qualifies an employee to receive shift premiums from 18:30 to 06:00 to 17:00 to 08:00, and an employee who regularly receives a shift premium for a regularly assigned shift will continue to receive the weekend premium when on leave with pay or on a designated paid holiday.

56 The employer proposes to maintain the status quo.

57 The Board has decided that article 28 of the collective agreement shall remain unchanged.

I. Article 31: Suspension and Discipline

58 The employer proposes to modify clause 31.04 of the collective agreement as follows:

31.04 Any document or written statement related to disciplinary action, which may have been placed on the personnel file of an employee shall be destroyed after two (2) years have elapsed since the disciplinary action was taken, provided that no further disciplinary action has been recorded during this period. This period will automatically be extended by the length of any period of leave without pay.

59 The bargaining agent proposes to maintain the status quo.

60 The Board has determined that clause 31.04 of the collective agreement shall remain unchanged.

J. Article 38: Part­-time Employees

61 The bargaining agent proposes that the following leave entitlements not be prorated for part-time employees: bereavement leave with pay; leave with pay for family-related responsibilities; court leave; personnel selection leave; marriage leave with pay; leave with or without pay for other reason; election leave; and volunteer leave.

62 The employer proposes to maintain the status quo.

63 The Board has determined that article 38 of the collective agreement shall remain unchanged.

K. Article 40: Seniority

64 The bargaining agent proposes to change the definition that seniority is deemed to commence on the employee’s date of hire with the House of Commons.

65 The employer proposes to maintain the status quo.

66 The Board has determined that clause 40.01 of the collective agreement shall remain unchanged.

L. Article 44: Duration

67 The bargaining agent proposes that the agreement should operate for a period of two years, from April 21, 2008 to April 20, 2010.

68 The employer proposes that, “[u]nless otherwise stipulated” in the collective agreement, the agreement should operate for a period of three years, from “the date it issigned” to April 20, 2011.

69 The award of the Board is that clause 44.01 of the collective agreement shall read as follows:

44.01 Unless otherwise expressly stipulated in this Agreement, the provisions of this Agreement shall become effective on thedate of the award and shall remain in force until April 20, 2011.

M. Appendix “A”: Rates of Pay

70 The bargaining agent proposes that all rates of pay be increased by 1.5 percent effective April 21, 2008 and by 1.5 percent effective April 21, 2009.

71 The employer, consistent with its proposal on the duration of the agreement, proposes to increase rates of pay by a further 1.5 percent effective April 21, 2010.

72 The award of the Board is that all rates of pay will be increased by 1.5 percent effective April 21, 2008, by 1.5 percent effective April 21, 2009 and by 1.5 percent effective April 21, 2010.

N. Appendix “B”: Uniform Entitlements

73 The bargaining agent proposes the following:

Appendix “B-1” Trade Service:

5 pairs of trousers or 5 skirts or 5 pairs of cargo pants, or combination of [sic] thereof; 5 shirts, or 5 t-shirts or combination of [sic]thereof; 1 winter hat and 1 pair of winter gloves.

Appendix “B-2” Maintenance and Material Handling Services:

5 pairs of trousers or 5 skirts, or 5 pairs of cargo            pants, or combination thereof.

Appendix “B-3” Messenger Services

Effective January 1, 2009, employees will be allowed an amount of up to $120.00 in each subsequent period of two calendar years for the purchase of sunglasses.

Umbrellas to be issued as required instead of on an annual basis.

Appendix “B-4” Material and Contract Management (including Shipper Receivers)

5 pairs of trousers or 5 skirts, or 5 pairs of cargo      pants, or combination thereof.

Appendix “B-5” Transportation Services

5 pairs of trousers or 5 skirts or 5 pairs of cargo pants, or combination thereof.

Appendix “B-6” Printing Services:

1 pair of safety shoes and 1 pair of boots

Appendix “B-7” Parliamentary Restaurant and Cafeterias

1 parka (for those employees required to perform duties outdoors) and that such items will be replaced as required.

trousers and parka are to be replaced as required.

Appendix “B-8” Accommodation Services

5 pairs of trousers or 5 skirts, or 5 pairs of cargo pants, or combination thereof

74 The employer proposes to maintain the status quo.

75 The Board has determined that Appendix “B” of the collective agreement will remain unchanged.

O.  Appendix “C”: Memorandum of Agreement Respecting Clause 24.09 — Rest Periods and Clause 24.02 — Scheduling of Unpaid Meal Periods 

76 The bargaining agent proposes to delete Appendix ”C” of the collective agreement, which addresses rest periods and the scheduling of unpaid meal breaks.

77 The employer proposes to maintain the status quo.

78 The Board has determined that Appendix “C” of the collective agreement shall remain unchanged.

P. Appendix “E”: Memorandum of Agreement Respecting Seasonal Certified Indeterminate (SCI) Employees   

79 The bargaining agent proposes the following changes to Appendix “E”: (i) exclude the loss of SCI status in prorogation years or in years with less than 130 sitting days; (ii) provide that certain types of leave of a specific duration are excluded for the purpose of losing SCI status; (iii) provide employees who lose SCI status with the option of being laid off and collecting severance under the agreement; and (iv) a statement that the employer agrees not to artificially create a break in service or to reduce an employee’s scheduled hours in order to prevent him or her from attaining SCI status.

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 1^st 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 the first (1^st) day that employment resumes in that year.

2. A SCI employee who works less than seven hundred (700) hours in two (2) consecutive calendar years will no longer be recognized as a SCI employee effective December 31^st of the second (2^nd) 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 thirty (130) sitting days will be excluded for the purpose of losing status. Consequently, if a SCI employee works less than seven hundred (700) hours during an election a year with less than one hundred and thirty (130) sitting days and therefore 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 clause 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.

4. 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 leave without pay for other reasons, for more than twenty (20) scheduled days;

or

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

or

(c) is certified sick for more than twenty (20) scheduled working days;

shall be excluded for the purpose of losing status in accordance with paragraph 2 above.

5. For the purpose of paragraph 4, a “scheduled working day” shall be a day in which an SCI employee, working in the same job title as the employee accessing the benefit outlined in paragraph 4, is scheduled to work.

6. The parties agree that, consistent with current practice, paid leave granted to SCI employees shall be counted as hours worked for the purposes of paragraphs 1 and 2 above.

7. Hours of leave granted under Article 12 of this Agreement 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.

8. Employees that lose SCI status shall have the option of being laid off from the House of Commons and collecting severance pursuant to this Agreement.

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.

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.

11. The Employer agrees not to artificially create a break in service or reduce a person’s scheduled hours in order to prevent said person from attaining SCI status.

12. Overtime Compensation

Seasonal Certified Indeterminate (SCI) employees shall be paid for overtime 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 15^th 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 31^st shall either be carried 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.

13.

(a) Restaurant Services

(i) With the exception of Catering Services, the following shall apply to SCI employees in Restaurant Services when the House of Commons is in session:

Employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

(ii) The following shall apply to SCI employees at all times in Catering Services, and to all other SCI employees in Restaurant Services when the House of Commons is not in session:

Provided they are available to work the hours required, employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

(b) Printing Services

(i) The following shall apply to SCI employees in Printing Services:

Employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

(c) General

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

(ii) If an employee reports to work as scheduled and there is no work available, he/she shall be paid for the scheduled shift at the regular rate of pay. If there is insufficient work for the duration of the employee’s scheduled shift and said employee is sent home, he/she shall be paid for the balance of the scheduled shift at regular rate of pay.

(ii) [sic] If, after making every reasonable effort consistent with (c) above, the Employer is unable to schedule hours for an SCI employee in his or her sub-group, the Employer shall investigate possible temporary work opportunities elsewhere within the House of Commons. Subject to the willingness and capacity of individual employees to undergo retraining and accept reassignment as necessary, such opportunities if they exist shall be offered in order of seniority to SCI employees without scheduled hours.

(iii) [sic] If no opportunities outlined in (ii) above are available at the House of Commons, 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.

80 The employer proposes to maintain the status quo.

81 The bargaining agent adduced evidence that SCI employees are vulnerable and without the basic provisions afforded to other indeterminate employees within the bargaining unit. The employer, for its part, never adduced evidence that the addition of these provisions would be detrimental to managing its operations.  The award of the Board is to add a number of new clauses to Appendix “E” of the collective agreement to ensure that SCI employees do not lose their status as a result of the increase in elections due to minority governments and the decrease in sitting days as a result of prorogation. As well, other clauses will be substantially amended to strengthen the protection of SCI employees. Appendix “E” 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 1^st 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 the first (1^st) 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 31^st of the second (2^nd) 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. 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 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 2 above.

5.  The parties agree that, consistent with current practice, paid leave granted to SCI employees shall be counted as hours worked for the purposes of paragraphs 1 and 2 above.

6. Hours of leave granted under Article 12 of this Agreement 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.

7. The Employer agrees not to artificially create a break in service or reduce a person’s scheduled hours in order to prevent said person from attaining SCI status.

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 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 15^th 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 31^st shall either be carried 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(a) Restaurant Services

(i) With the exception of Catering Services, the following shall apply to SCI employees in Restaurant Services when the House of Commons is in session:

Employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

(ii) The following shall apply to SCI employees at all times in Catering Services, and to all other SCI employees in Restaurant Services when the House of Commons is not in session:

Provided they are available to work the hours required, employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

11(b) Printing Services

(i) The following shall apply to SCI employees in Printing Services:

Employees shall not be scheduled to work fewer hours than less senior employees in the same job title. Unscheduled straight-time hours shall be offered in order of seniority.

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

Q. Social Justice Fund

82 The bargaining agent proposes to include a new article in the collective agreement that reads as follows:

xx.01 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.

83 The employer proposes to maintain the status quo.

84 The Board has determined that the collective agreement shall not include the proposed new article.

R. Memorandum of Agreement in Respect of Employees in the Operations Subgroup

Subject: Shift Assignment for Operations Workers

85 The bargaining agent proposes to introduce the following: (i) the employer shall solicit volunteers every six months for shifts between 18:00 and 06:00, and where there are more volunteers than required, shifts shall be awarded in order of seniority; (ii) in the event there are not enough volunteers, shifts will be awarded in reverse order of seniority; (iii) employees in transportation services shall have all shifts awarded in order of seniority; and (iv) the employer shall provide volunteer lists and the shift assignments to the bargaining agent.

86 The employer proposes to maintain the status quo.

87 The award of the Board is that Appendix “J” (NEW) Memorandum of Agreement Shift Assignment for Operations Workers in the Operations Subgroup shall be included in the collective agreement. It reads as follows:

The conditions listed below are to be applied with respect to employees in the following operational subgroups with regard to shift assignment.

(i) On the effective date of the arbitral award, the Employer shall solicit employees in Maintenance and Material Handling every six (6) months for volunteers for all scheduled shifts that start or end between 18:00 and 06:00. In the event that there are more volunteers than required, the Employer shall award these shifts in order of seniority. In the event that there are fewer volunteers than required, the Employer shall assign these shifts in reverse order of seniority.

(ii) Within thirty (30) days of the effective date of the arbitral award, the employees in Transportation Services shall bid by seniority on all shifts within Transportation Services. Shift vacancies that arise subsequent to the initial bid shall be addressed pursuant to Article 24 of the collective agreement.

(iii) The Employer shall provide to the PSAC volunteer lists and shift assignments of the employees in Maintenance and Material Handling and Transportation Services upon request.

III. General

88 The Board will remain seized of this matter for period of three months in the event that the parties encounter any difficulties in implementing the arbitral award. The parties may, as part of their implementation consultations, use article 39 (Agreement Reopener) of the collective agreement to agree to alternate language for the collective agreement. It is unfortunate that the parties were unable to work together more effectively to reduce the number of outstanding matters for determination in this award by this Board. The fact that the parties were not prepared to consider further discussions to try to reach a settlement, or at the very least reduce the number of outstanding matters, signals the polarization of the parties’ positions and their inability to work together. I encourage the parties in the future to work together in an effort to achieve more harmonious labour relations within the House of Commons.

February 22, 2010.

Dan Quigley
Board Member
Chairperson of the panel