FPSLREB Decisions

I. Matters referred to arbitration 

1 By letter of March 7, 2012, the Professional Institute of the Public Service of Canada (“the bargaining agent”) requested arbitration in respect of the NUREG bargaining unit. The certificate issued by the Public Service Labour Relations Board (“the Board”) on January 5, 2012 describes the bargaining unit in question as comprising:

“all employees in classification REG1 to REG8, save and except employees working in the Human Resources Directorate (with the exception of REG5 and REG6 Learning Officers/Specialists), the Office of the President, and Legal Services and who are not excluded from collective bargaining by law or determination of the Board.”

Along with its request, the bargaining agent provided a list of the terms and conditions of employment that it wished to refer to arbitration. Those terms and conditions of employment and supporting material are attached as Schedule 1.

2 By letter of March 21, 2012, the Canadian Nuclear Safety Commission (“the employer”) provided its position on the terms and conditions of employment that the bargaining agent wished to refer to arbitration. The employer also provided a list of additional terms and conditions of employment it wished to refer to arbitration. That letter and supporting material are attached as Schedule 2.

3 In that March 21, 2012 correspondence, the employer also raised preliminary objections under section 150 of the Public Service Labour Relations Act (PSLRA) and subsection 16(1) of the Nuclear Safety and Control Act (NSCA), S.C. 1997, C. 9, in relation to two proposals submitted by the bargaining agent, specifically, proposed changes to “Article 2 - Definition of ‘lay-off’,” and a new “Appendix 4: Workforce Adjustment”.

4 By letter of March 30, 2012, the bargaining agent informed the Board that it had no response to the additional matters that the employer wished to refer to arbitration. That same letter contained the bargaining agent’s response to the employer’s two preliminary objections. The letter is attached as Schedule 3.

5 On April 12, 2012, the Board directed the parties to provide written submissions on the employer’s objections to the two items that the bargaining agent was seeking to have included in the terms of reference of the arbitration board. That letter is attached as Schedule 4.

6 On April 24, 2012, the employer provided its written submissions.

7 On May 10, 2012, the bargaining agent provided its written submissions.

8 On May 17, 2012, the employer provided its reply.

II. Summary of the arguments

A. For the employer

9 The employer objected to the inclusion of the bargaining agent’s proposals about Article 2 - Definition of “lay-off” and Appendix 4: Workforce Adjustment. The employer based its objection on two statutory provisions, namely, paragraph 150(1)(c) of the PSLRA and subsection 16(1) of the NSCA. 

10 The employer argued that the PSLRA establishes specific limitations on the arbitrability of certain terms and conditions of employment. Specifically, pursuant to paragraph 150(1)(c), arbitral awards may not directly or indirectly alter or eliminate existing terms or conditions if “… the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees …”

11 The employer also relied on subsection 16(1) of the NSCA, which outlines the employer’s right to appoint and employ candidates and to establish terms and conditions of employment.  

12 The employer argued that the bargaining agent’s two proposals fall squarely within the limitations on arbitrability contained in paragraph 150(1)(c) of the PSLRA and that they interfere with the powers granted to the employer pursuant to subsection 16(1) of the NSCA. Thus, they should be excluded from the terms of reference for this arbitration.

13 In support of its position on the bargaining agent’s proposed changes to Article 2 - Definition of “lay-off,” the employer argued that such a definition constitutes a term or condition that relates to standards, procedures or processes governing lay-off. Thus, it cannot be the subject of arbitration by the application of paragraph 150(1)(c) of the PSLRA. The employer relied on the Board’s decision in Professional Institute of the Public Service of Canada v. Canadian Nuclear Safety Commission, 2005 PSLRB 174, which dealt with a similar dispute between these same parties. In that decision, the Chairperson at that time determined that including a definition of “lay-off” could not form part of an arbitral award. 

14 In addition, the employer argued that, although the collective agreement contains certain severance pay provisions upon lay-off, these provisions are part of remuneration and are not matters excluded by paragraph 150(1)(c) of the PSLRA. The employer argued that the presence of certain entitlements to severance pay upon lay-off does not open the door to the inclusion of lay-off definition language in the terms of reference. The employer argued that the proposed Article 2 - Definition of “lay-off” sets limits or parameters on what constitutes a lay-off and thus interferes with the employer’s rights to determine standards, procedures or processes governing the laying-off of employees.

15 Although the employer recognized that subsection 16(1) of the NSCA does not prevent matters such as a definition of “lay-off” from existing in collective agreements, it argued that the parties must negotiate and reach an agreement to include such language in their collective agreement. Without that agreement, the arbitration board does not have jurisdiction to make an award on the issue since subsection 16(1) “preserves” certain issues from the arbitration process, unless the parties have negotiated otherwise.

16 In support of its position on the bargaining agent’s proposal for a new Appendix 4: Workforce Adjustment (“WFA”), the employer argued that the proposal deals with such matters as the identification of surplus employees, notification, job offer or deployment, retraining, and substitution. Therefore, it relates to standards, procedures and processes governing appointments, deployments and lay-offs of employees, subjects inconsistent with paragraph 150(1)(c) of the PSLRA that an arbitration board cannot consider.

17 The employer distinguished this case from Professional Institute of the Public Service of Canada v. Treasury Board, 2008 PSLRB 72. In that case, the employer did not object to referring the WFA appendices to arbitration but objected to the bargaining agent’s specific proposal to include a new clause for term employees. In this case, the employer objects to the inclusion of the WFA in its entirety. In addition, the WFA proposal, if implemented through an arbitral award, would regulate how the employer must conduct itself with respect to employees affected by a workforce adjustment. That situation falls within the purview of paragraph 150(1)(c) of the PSLRA.

18 As for the existence and significance of a memorandum of agreement (MOA) attached to the collective agreement dealing with the employer’s Career Transition Policy resulting from prior negotiations between the parties and entered into before the first arbitral award between the parties, the employer submitted that it has in no way negotiated away its rights to object to the inclusion of the current WFA proposal. In fact, the MOA merely acknowledges the employer’s agreement to conduct meaningful consultations through the Labour-Management Consultation Committee before making changes to the Career Transition Policy, a concept that the employer suggested cannot be equated to an agreement to enter into negotiations. The employer contended that an agreement to consult does not give rise to an obligation to negotiate with respect to the WFA.

19 Finally, the employer argued that, although subsection 16(1) of the NSCA does not prohibit WFA language in a collective agreement, such language can be included only if the parties reach a mutual agreement. Failing such an agreement, the matter cannot be referred to and resolved through arbitration.

B. For the bargaining agent

20 The bargaining agent argued that nowhere does the NSCA stipulate that the powers granted to the employer by subsection 16(1) cannot be subject to negotiation or arbitration. The bargaining agent argued that, since the collective agreement contains terms and conditions of employment and fixes remuneration, then it is clear that subsection 16(1) does not bar bringing the definition of “lay-off” before an arbitration board. In support of its position, the bargaining agent cited other separate employer collective agreements that contain definitions of “lay-off” similar to that to which the employer is objecting. Therefore, the bargaining agent argued that subsection 16(1) cannot be read to preserve certain issues from the negotiation and arbitration process without reference to an external statutory limitation, such as those found in the PSLRA. The bargaining agent argued that the employer had not made that link and that there was no basis for its objection in the NSCA alone.

21 Despite its position on the applicability of subsection 16(1) of the NSCA, the bargaining agent, in the interest of facilitating matters, submitted an amended proposal for inclusion in the terms of reference of the arbitration board. The amended proposal reads as follows:

Article 2 Definitions

“Lay-off” means the termination of an employee’s employment because of lack of work or because of the discontinuance of a function.

22 As for the meaning of paragraph 150(1)(c) of the PSLRA and the applicability of 2005 PSLRB 174, the bargaining agent argued that, although it dealt with the same issue between the same parties, it was in a completely different context. The bargaining agent argued that that decision was rendered to resolve the negotiations of the first collective agreement between the parties. The Chairperson at the time had considered that a proposal for a definition of “lay-off” could apply to almost any proposal on the employer’s operations. Therefore, he read the implication of such a definition in those terms.

23 The current proposal is in the context of a renewal collective agreement between the parties. The collective agreement already contains provisions for severance pay on lay-off as a result of an arbitral award dated November 20, 2006 (PSLRB File No. 585-03-01) that incorporated provisions dealing with severance pay entitlements upon layoff. The bargaining agent argued that the employer did not object to the inclusion of those provisions in the arbitral award at that time.

24 The bargaining agent further argued that the definition of “lay-off” being proposed serves to identify the threshold for an entitlement to severance pay upon lay-off that is currently in the collective agreement between the parties, which was obtained by way of an arbitral award that the employer did not object to at the relevant time.  

25 With respect to the inclusion of its new WFA proposal, the bargaining agent reiterated its view that subsection 16(1) of the NSCA is not a prohibitive clause to the collective bargaining or arbitration of WFA matters.

26 The bargaining agent relied on 2008 PSLRB 72, in which proposals related to certain WFA aspects were included in the terms of reference for the arbitration board. The bargaining agent argued that, in this present case, the employer made a blanket objection without distinguishing why each section of the WFA proposal violates paragraph 150(1)(c) of the PSLRA. However, some of the bargaining agent’s current WFA proposals are similar to those allowed in that earlier decision.

27 Finally, the bargaining agent argued that the arbitral award that created the original collective agreement between the parties contained the MOA. At the time of that award, and in the renewal of the collective agreement, the employer did not object on the basis that it violated paragraph 150(1)(c) of the PSLRA.

III. Reasons

A. The applicable legislative framework

28 In general, parties to collective bargaining are free to enter into agreements on a variety of topics. However, although the PSLRA provides for a system of resolving of collective bargaining disputes through arbitration, it imposes certain limits on which subject matters can properly be the subject matter of an arbitral award. In the present case, the parties disagree as to which matters can properly form the terms of reference for the arbitration board that will render an arbitral award to resolve their collective bargaining dispute between the parties.

29 Specifically at issue in the present matter is paragraph 150(1)(c) of the PSLRA, which provides as follows:

150. (1) The arbitral award may not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if

…

c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees…

30  One must also be mindful of subsection 16(1) of the NSCA, which reads as follows:

16. (1) The Commission may, notwithstanding any other Act of Parliament, appoint and employ such professional, scientific, technical or other officers or employees as it considers necessary for the purposes of this Act and may establish the terms and conditions of their employment and, in consultation with the Treasury Board, fix their remuneration.

B. Schedule 1 - Article 2 - Definition of “lay-off” and the amended proposal

31  The bargaining agent’s original proposal for a definition of “lay-off”, contained in Schedule 1, consists of the following:

Article 2 Definitions

“Lay-off” means the termination of employment or reduction of work because of lack of work, the discontinuance of a function, the transfer of work or a function to another employer, or the transfer of work or a function outside the public service.

32 As part of its written submissions, the bargaining agent modified its proposed definition to the following:

Article 2 Definitions

“Lay-off” means the termination of an employee’s employment because of lack of work or because of the discontinuance of a function.

33 I agree with 2005 PSLRB 174, in which it was found that a definition of “lay-off” is clearly a matter which is not arbitrable as it constitutes a term or condition directly or indirectly related to standards, procedures or processes governing lay-off of employees. In my view, which agrees with that decision, a definition of “lay-off” sets a standard governing lay-off of employees.

34 I do not agree with the bargaining agent’s submissions that the context of 2005 PSLRB 174 changes or minimizes its applicability to this case. The proposed definition of “lay-off” purports to apply to the entire collective agreement. It would govern the standards or, in other words, the criterion or norm for what constitutes a lay-off under the collective agreement. That was also so in 2005 PSLRB 174. 

35 I also reject the arguments based on the presence of certain severance pay provisions in the collective agreement and the argument based on the employer’s failure to object in previous proceedings between the parties. I find that those arguments do not somehow negate or curtail the requirements of paragraph 150(1)(c) of the PSLRA.

36 After a careful review of the relevant legislation and the parties’ written submissions, I find that the proposal for Article 2 - Definition of “lay-off” cannot be included in an arbitral award pursuant to paragraph 150(1)(c) of the PSLRA.

37  As I have already found that paragraph 150(1)(c) of the PSLRA prohibits the inclusion of the definition of “lay-off” in the terms of reference for arbitration, I do not need to deal with the arguments based on subsection 16(1) of the NSCA.

38  For these reasons, the definition of “lay-off” as proposed by the bargaining agent in Schedule 1 - Article 2 – Definition of “lay-off” and as amended as part of its written submissions will be excluded from the terms of reference for arbitration.

C. The WFA

39  One of the bargaining agent’s arguments for including WFA proposal in the terms of reference is based on 2008 PSLRB 72 and the resulting arbitral award. Underlying the decision was an agreement by the parties on certain WFA matters but a disagreement over one specific provision dealing with term employees. In the present case, the parties have no such agreement as to whether the WFA, or a part of it, should be included in the collective agreement. Nor is the dispute over including or excluding a new term or provision of an already-agreed upon WFA system. Indeed, the entire dispute centres on including or excluding an entire WFA system. Therefore, I find that that decision and the resulting arbitral award are not helpful in resolving the present issue concerning a full WFA proposal.  

40 The bargaining agent also relied on the MOA as evidence of some form of agreement by the parties to a WFA system in the collective agreement. I find that the MOA’s proper or core subject matter consists of the issue of meaningful consultations, albeit on the employer’s Career Transition Policy. The negation or curtailment of the requirements of paragraph 150(1)(c) of the PSLRA does not flow from the MOA.

41 I find that the WFA proposal reads as a whole proposal and that some or all of its parts, components or provisions cannot logically be severed from the whole without rendering it an unworkable proposal. In essence, the WFA proposal provides a determined set of standards, processes and procedures in situations of workforce adjustments of indeterminate employees. It defines and establishes standards that determine rights, criteria, norms, entitlements or obligations. It also provides processes that lead to certain results, treatments or activities. Finally, it provides for procedures establishing particular ways, steps or orders of accomplishing certain functions or activities. Therefore, read as a whole, the WFA directly or indirectly establishes standards, processes or procedures in certain situations of the appointment, the deployment and/or the lay-off of employees.

42 In the alternative, should each of the WFA proposal’s components or provisions be able to be severed from the whole and read independently, I also find that, individually, each directly or indirectly constitutes either a standard, a procedure or a process, or a combination of them, in certain situations of appointment, deployment and/or lay-off of employees.

43 After a careful review of the relevant legislation and the parties’ written submissions, I am of the view that the WFA proposal, in its entirety, but also in each of its individual parts, directly or indirectly constitutes a term or condition relating to standards, procedures or processes governing the appointment, deployment and/or lay-off of employees, subjects inconsistent with paragraph 150(1)(c) of the PSLRA. Therefore, the WFA proposal cannot be included in an arbitral award pursuant to paragraph 150(1)(c) of the PSLRA.

44  As I have already found that paragraph 150(1)(c) of the PSLRA prohibits the inclusion of the WFA proposal in the terms of reference for arbitration, I do not need to deal with the arguments based on subsection 16(1) of the NSCA.

45 For these reasons, the WFA proposal of the bargaining agent in Schedule 1 - Appendix 4: Workforce Adjustment will be excluded from the terms of reference for arbitration.

IV. Order

46 Pursuant to section 144 of the PSLRA, the matters in dispute on which the arbitration board shall make an arbitral award are those set out in Schedules 1 to 3 inclusive, which are attached to this decision, with the exclusion of the following:

1. Article 2 - Definition of “lay-off” in Schedule 1 and amended in the bargaining agent’s written submissions; and
2. Appendix 4: Workforce Adjustment in Schedule 1.

47 Should any further jurisdictional question arise during the course of the hearing as to including a matter in these terms of reference, that question must be submitted without delay to the Chairperson of the Board, who is, according to subsection 144(1) of the PSLRA, the only person authorized to make such a determination.

June 26, 2012.

Casper Bloom, Q.C., Ad. E.,
Chairperson of the
Public Service Labour Relations Board