FPSLREB Decisions

Application before the Board

1 On February 24, 2011, the Treasury Board (“the employer”) filed an application with the Public Service Labour Relations Board (“the new Board”) for an order revoking the managerial or confidential status of position 0-123C (Manager, Library Services, Courts Administration Service, in Ottawa, Ontario) (“the position”) and returning the position to the following bargaining unit (“the bargaining unit”), for which the Canadian Association of Professional Employees (“the bargaining agent”) was certified as the bargaining agent (see Professional Institute of the Public Service of Canada v. Treasury Board, PSSRB File No. 142-02-76 (19681217), as modified by Economists’ Sociologists’ and Statisticians’ Association v. Treasury Board, PSSRB File No. 142-02-150 (19750821), Social Science Employees Association v. Treasury Board, PSSRB File No. 142-02-327 (19990519), and Canadian Union of Professional and Technical Employees and Social Science Employees Association v. Treasury Board, 2003 PSSRB 91):

All employees of the Employer in the Economics and Social Science Services Group as defined in Part I of the Canada Gazette of March 27, 1999.

On April 1, 2005, the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to subsection 48(1) of the Public Service Modernization Act, the bargaining agent continues to be certified as the bargaining agent for the bargaining unit.

2 On March 16, 2011, the bargaining agent responded that it had no objections to this application.

Background

3 When the initial application for exclusion was made, the position was identified as a “managerial or confidential position” under paragraph (g) of that definition in subsection 2(1), paragraph 5.1(1)(b) and section 5.2 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”). At that time, paragraph (g) read as follows:

2. (1) In this Act,

…

“managerial or confidential position” means a position

…

(g) identified as such a position pursuant to section 5.1 or 5.2, the identification of which has not been terminated pursuant to section 5.3;

For their part, paragraph 5.1(1)(b) and section 5.2 provided as follows:

5.1 (1) Where, in connection with the application for the certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

…

(b) a position the occupant of which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance presented in accordance with the grievance process provided for by this Act;

5.2 (1) Where, before or after the coming into force of this section, a bargaining agent has been certified by the Board, the employer may, in the prescribed manner, identify any position described in subsection 5.1(1) of an employee in the bargaining unit for which the bargaining agent was certified as a managerial or confidential position, and for the purpose of that identification the reference in paragraph 5.1(1)(d) to the Board shall be construed as a reference to the employer.

(2) Where the employer identifies a position pursuant to subsection (1), it shall notify the Board and the bargaining agent in writing of the identification.

(3) Within twenty days after receiving a notice under subsection (2), the bargaining agent may file an objection to the identification with the Board.

(4) Where an objection to an identification is filed pursuant to subsection (3), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or reject the identification.

(5) An identification of a position pursuant to subsection (1) takes effect at the end of the period referred to in subsection (3) if no objection is filed within that period or, if an objection is so filed and the identification is confirmed on the objection, the identification takes effect on the date of the decision confirming it.

4 No record exists of an order made by the former Public Service Staff Relations Board (“the former Board”) that declared the position a “managerial or confidential position.” Before April 1, 2005, a position could have been identified by the employer as a “managerial or confidential position” without any determination by the former Board.

5 On April 1, 2005, the former Act was repealed, and the new Act was proclaimed in force. Pursuant to section 50 of the Public Service Modernization Act, the position was deemed a “managerial or confidential position” under the new Act as follows:

50. Every position that was a position referred to in any of paragraphs … (g) of the definition “managerial or confidential position” in subsection 2(1) of the former Act immediately before the day on which the definition “managerial or confidential position” in subsection 2(1) of the new Act comes into force is deemed, as of that day, to be a managerial or confidential position within the meaning of subsection 2(1) of the new Act.

[Bold in the original]

[Emphasis added]

For its part, subsection 2(1) of the new Act provides as follows:

2. (1) The following definitions apply in this Act.

…

“managerial or confidential position” means a position declared to be a managerial or confidential position by an order made by the Board…

…

[Emphasis added]

Reasons

6 There is no dispute between the parties that before April 1, 2005, the position was identified as a “managerial or confidential position” under paragraph (g) of that definition in subsection 2(1), paragraph 5.1(1)(b) and section 5.2 of the former Act. Pursuant to section 50 of the Public Service Modernization Act, the position is deemed to have been ordered declared by the new Board as a “managerial or confidential position” within the meaning of subsection 2(1) of the new Act.

7 Further, there is no dispute between the parties that the position no longer has managerial or confidential attributes within the meaning of subsection 2(1) of the new Act.

8 Section 43 of the new Act provides the new Board with the authority to rescind any of its orders:

43.(1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

(2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.

In appropriate circumstances, the new Board has exercised this authority where the facts on which one of its earlier orders was based have changed significantly. Considering that the parties share a same view that the position no longer has managerial or confidential attributes within the meaning of subsection 2(1) of the new Act, I find it more probable than not that the position is no longer a “managerial or confidential position” within the meaning of subsection 2(1) of the new Act. In these circumstances, I find it appropriate to exercise the Board’s powers under section 43 to revoke the managerial or confidential status of the position.

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

Order

10 I declare that position 0-123C (Manager, Library Services, Courts Administration Service, in Ottawa, Ontario) is no longer a “managerial or confidential position” within the meaning of subsection 2(1) of the new Act, and I order revoked the order that declared it so.

May 9, 2011.

Casper M. Bloom, Q.C., Ad. E.
Chairperson