FPSLREB Decisions

I. Complaint before the Board

1 The Research Council Employees’ Association (“the complainant” or “RCEA”) alleges that the National Research Council of Canada (“the respondent” or “NRC”) has violated section 190(1)(c) of the Public Service Labour Relations Act (“the Act)” by refusing to implement changes to the Workforce Adjustment Policy, that were negotiated pursuant to the policy and were agreed to by the parties on December 6, 2011. The complainant alleges that these changes form part of the terms and conditions of that employment and are protected pursuant to the statutory freeze mandated by section 107 of the Act.

II. Preliminary matters

2 As the Workforce Adjustment Policy in question applies equally to the Professional Institute of the Public Service of Canada (PIPSC) employees at the NRC, I asked whether they had been provided notice of this hearing. I was advised by RCEA counsel that they had been advised verbally of the hearing. The NRC did not provide any notice to the PIPSC. Representatives of the PIPSC did not appear. I am satisfied that the PIPSC was provided sufficient notice of this hearing.

III. Summary of the evidence

3 The parties submitted an Agreed Statement of Facts, the highlights of which are as follows:

(1) The documents appended to this Agreed Statement of Facts are authentic and admissible.

(2) The collective agreements for all six bargaining units represented by the RCEA have expired, and notices to bargain have been served, in accordance with this timetable:

Bargaining Unit	Expiry of CA	Notice to Bargain
Administrative Support Group (“AD”)	April 30, 2011	February 3, 2011
Administrative Services Group (“AS”)	April 30, 2011	February 3, 2011
Computer Systems Administration Group (“CS”)	December 21, 2011	October 11, 2011
Operational Category	July 30, 2011	May 31, 2011
Purchasing and Supply Group (“PG”	April 30, 2011	February 3, 2011
Technical Category (“TO”)	March 31, 2011	December 1, 2010

(3) The NRC’s Work Force Adjustment Policy (WFAP) is incorporated into the collective agreements for all five bargaining units represented by the RCEA.

(4) The NRC, RCEA and Professional Institute of the Public Service of Canada met on several occasions in 2011 and 2012 to negotiate changes to the WFAP.

(5) The NRC informed the bargaining agents that it required an approved mandate from Treasury Board.

(6) The three parties agreed in principle on the final changes to the WFAP on December 6, 2011. The various changes agreed upon in 2011 (at various times) were initialled at the time of the agreement. …

(7) The parties reviewed the specific wording of the changes, and came to an agreement on those changes on January 18, 2012. The work of translating changes into French continued for a short period after January 18, 2012. The agreed wording of the changes (in both official languages) is at Appendix B to this Agreed Statement of Facts.

(8) That the NRC has not implemented two changes to the agreed working of the WFAP:

a) The change to articles 3.6.4.7 and 3.6.13.5 (creating a four-week period during which laid off employees are entitled to apply for internal NRC positions); and

b) An increase to the amount of reimbursement for financial planning expenses from $400 to $600.

[Sic throughout]

4  The duration of the relevant collective agreements, which incorporated the Workforce Adjustment Policy was 18 months.  The Workforce Adjustment Policy on the other hand, was to be renegotiated on a tri-partite basis every three years.

5 Joan Van Den Bergh, negotiator and Senior Labour Relations Officer at the RCEA testified on behalf of the complainant. She testified that the WFAP had been integrated into all of the RCEA collective agreements in the last round of bargaining and that it was to be renegotiated on the same cyclical basis as was contained in the policy at the time of integration; that is, on a three-year basis. Renegotiation of the WFAP began in late November or early December of 2010. The RCEA and the PIPSC renegotiated the WFAP simultaneously with the NRC.

6 At the outset of this round of negotiations, the NRC informed both unions that it had not received a mandate from the Treasury Board Secretariat (TBS) that would provide it with the authority to enter into a new agreement on the WFAP. However, it was willing to commence the process but could not deal with any financial elements of the proposals.

7 Negotiations proceeded on the non-financial “buckets” related to time (notification periods, marketing periods, surplus periods), salary protection and appropriateness of positions, and administrative matters (everything that did not fall into one of the other buckets). The financial bucket included those items which the parties recognized had a cost factor for the employer attached to them.  There were three elements included in this round of WFAP negations: the payout package entitlement, the lay-off benefits entitlement and the financial planning allowance entitlement. Another question in this bucket was whether or not terminable allowances should be included. 

8 The parties did not deal with the financial bucket until December 6, 2011. The reason that the parties did deal with financial matters despite the earlier reluctance by the NRC to discuss matters for which they did not have a mandate was that the NRC representatives believed they had now received an indication of the direction the TBS would have them go. In addition, the people representing the NRC at the negotiation table had received approval from the NRC Senior Executive Committee. The NRC put a comprehensive package on the table that included all financial and other outstanding issues.

9 Agreement in principle on all matters related to the WFAP was reached at the December 6, 2011 negotiation session. Some language needed to be worked on related to the WFAP amendments, so the parties agreed to meet on January 12, 2012. In the meantime, the parties were to exchange language proposals. January 18, 2012 was to be the final meeting.

10 On January 18, 2012, the parties met to discuss the proposed final version of the new WFAP to ensure it reflected that everyone is in agreement. Between January 18, 2012 and February 27, 2012, the parties sought a date for the signing of the revised WFAP. On February 27, the RCEA and the PIPSC were asked to participate in a teleconference with the NRC at which they were advised by the NRC that the TBS had “thrown a wrench into the works.”

11 According to the NRC, the TBS was now advising the NRC that it could not sign the renegotiated WFAP unless and until each of the new collective agreements were concluded. At this point all the RCEA collective agreements were expired and notice to bargain had been served on the NRC for all six of the RCEA bargaining groups. Negotiations had in fact begun for the Technical Category. None of the groups has since signed a collective agreement nor has an arbitral award been issued for any of the groups. The renegotiated WFAP has yet to be signed.

12 Ms. Van Den Bergh testified that this “outraged” both the RCEA and the PIPSC, as no link had been made between the WFAP bargaining and the group bargaining up to this point. The RCEA felt that it was a tactic used by the TBS to get the unions to agree to proposals on severance pay. The RCEA and the PIPSC had negotiated with the NRC in good faith. In March 2012, the RCEA met with the NRC to discuss how they could move forward in light of the upcoming workforce adjustment announcements. The NRC advised the RCEA that it could implement everything that they had agreed to except for the changes related to an increase in the financial planning benefits and the right to participate as an internal candidate on NRC competitions for a four-week period post-layoff as this was new language. The two changes that could be implemented were possible within the current wording of the WFAP and required no language change.

13 Isabelle Gingras, the NRC Vice-President Human Resources, testified on behalf of the respondent. She testified that the WFAP is the document that governs all terminations of employment at the NRC due to lack of work or discontinuation of a function. She was involved in the previous and most recent rounds of negotiation relative to the WFAP. 

14 The three year cyclical review of the WFAP did not happen during the period of the Expenditure Restraint Act. Discussions between the parties on amendment of the WFAP took place from late 2010 to early 2012. The TBS mandate issue was raised at each meeting and a status update was provided to the unions by Ms. Gingras. By email on August 26, 2011 (Exhibit 3), Ms. Gingras advised the parties that the TBS preferred to see all the NRC bargaining mandates at one time rather than deal with the WFAP mandate on its own. Consequently, the NRC was not in a position to conclude negotiations relative to the WFAP but was still interested in proceeding with discussions not linked to the mandate issue. 

15 The purpose of continuing discussions was to establish common ground and resolve related issues with the hope that a mandate would be received from the TBS shortly. The NRC was not in a position to implement anything that may have been agreed upon without the mandate. None was received prior to the conclusion of discussions.

16 TBS approval of the NRC’s mandate was required as the WFAP was integrated into the collective agreements in 2004. The NRC requires the TBS to approve all mandates for collective agreement negotiations. Amendments to the WFAP now require an amendment to the collective agreement. The mandate was received on February 2, 2012, and was different than hoped.

17 The RCEA and the PIPSC were advised on February 27, 2012 that the mandate received would not allow implementation of the negotiated WFAP changes until conclusion of the various rounds of collective bargaining and that the NRC was not in a position to sign an agreement relative to the WFAP separate from an agreement in toto on the respective collective agreements. To implement any changes to the existing WFAP would be a violation of the statutory freeze on the terms and conditions of employment of the members of the bargaining group which comes into effect on service of notice to bargain.

18 This was disappointing to the NRC but it was bound by the TBS directive. Attempts were made by NRC senior officials to convince the TBS to allow the NRC to proceed with full implementation or to allow the WFAP negotiations to proceed separate from the collective agreement negotiations. All attempts were unsuccessful.

19 Ms. Gingras met with the bargaining agents to discuss what could be implemented without the TBS approval. They agreed to implement those parts of the WFAP agreement in principle that could be implemented within the current language of the WFAP. That left two elements outstanding: the increase in the financial counselling allowance and the post-layoff competition entitlements.

IV. Summary of the arguments

A. For the complainant

20 The RCEA seeks a declaration that the WFAP as amended by the agreement in principle must be implemented for the RCEA bargaining units or, in the alternative that those employees identified in Exhibit 4 through 6 be awarded the increased entitlements agreed to in principle and partially implemented by the respondent.

21 The six RCEA collective agreements have identical language requiring the renegotiation of the WFAP:

The NRC Workforce Adjustment Policy shall form part of this collective agreement and shall be reviewed and negotiated by the signatories to the Policy in accordance with the terms and conditions described in the Policy.

The question to be answered by the Board is whether or not the NRC can amend the terms of the WFAP without the consent of the TBS. Neither the policy that forms part of the collective agreements nor the collective agreements themselves make mention of the requirement that the TBS approve of the changes prior to the conclusion of the agreement.

22 The parties had an agreement as is evidenced by the signed-off articles found in Exhibit 1, Tab C. Whether or not the NRC can amend the terms of the WFAP without the consent of the TBS is a matter of legal jurisdiction. The NRC is responsible for negotiating collective agreements with its employees. It is also responsible for implementing the agreement, which in this case included negotiating the NRC WFAP. The NRC WFAP makes no mention of the TBS involvement so what is the source of the TBS’ authority? Section 112 of the Act sets out the authority of a separate agency to enter into a collective agreement:

112. A separate agency may, with the approval of the Governor in Council, enter into a collective agreement with the bargaining agent for a bargaining unit composed of employees of the separate agency.

23 In order for section 112 of the Act to apply, the Board must conclude that a collective agreement is being entered into. Is amending an ancillary document included in a collective agreement the same as signing a collective agreement? The Re St. Marys Cement and United Steelworkers, Local 9235 (2010), 194 L.A.C. (4th) 72 case (followed in Royal Ontario Museum v. Service Employees International, Local 2 Brewery, General & Professional Workers’ Union, Ontario Labour Relations Board decision MPA/Z100524 , [2011] O.L.A.A. No. 292(QL)) states that it is not a breach of a collective agreement to amend an ancillary document incorporated into the collective agreement pursuant to a formula contained in that ancillary document. In St. Mary’s there had been a unilateral change by the employer to the pension plan, changing it from a defined benefit pension plan to a defined contribution plan. The plan document contained an express provision permitting the employer to amend the plan. Incorporating it into the collective agreement did not preclude the employer from exercising this right.

24 Based on St. Mary’s and Royal Ontario Museum, the collective agreement does not require the inclusion of additional language to amend an ancillary document when it is included in the ancillary document itself. In this case, that authority is found at section 3.6.22 of the WFAP:

3.6.22.1 The WFA Policy shall be negotiated on a three (3) year cycle from the date of the coming into effect of the Policy by the bargaining agents and the Council.

25 The RCEA’s request that the agreement in principle be enforced is consistent with the collective agreement and with the approach of the Federal Court of Canada in PSAC v. Canada, (1983) 49 N.R. 349 and the Board in Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2006 PSLRB 29. Based on these decisions, the terms and conditions of employment of employees within the statutory freeze period may be amended by mutual agreement during the freeze period pursuant to section 107 of the Act. Where the authority to make changes exists in a policy, exercising that authority does not change the terms and conditions of employment of the employees within the statutory freeze period.

26 The respondent had the authority pursuant to the WFAP and the collective agreement to negotiate the WFAP. An agreement in principle was reached and partially implemented by the respondent. Section 107 of the Act is not a complete bar to the implementation of changes during the statutory freeze period as it provides that the parties may agree not to observe a term and condition of employment in effect at the time that the notice to bargain is served. This agreement does not require Governor in Council approval pursuant to section 112 of the Act as section 107 is more specific than section 112. Only once a collective agreement is reached does a separate agency require Governor in Council approval to enter into the collective agreement.

27 There is no requirement under the Act for the respondent to secure a mandate from the TBS in order to change the WFAP where the policy itself includes the authority. The parties were not entering into a collective agreement, so section 112 of the Act does not apply. Section 107 of the Act is not a bar either. Section 11.1 of the Financial Administration Act outlines the authorities of the Treasury Board in the area of human resources management that are limited in subsection 11.1(2):

11.1(2) The powers of the Treasury Board in relation to any of the matters specified in subsection (1)

(a) do not extend to any matter that is expressly determined, fixed, provided for, regulated or established by any Act otherwise than by the conferring of powers in relation to those matters on any authority or person specified in that Act;

28 The authorities to deal with human resources management as identified in section 7 of the Financial Administration Act were delegated to separate employers (now separate agencies) by Cabinet in November, 1967. Proof of this is at Exhibit 1, Tab H. A separate employer, including, the NRC, must consult with the Treasury Board staff on any new or modified policies it proposes to implement. [Emphasis added].

29 TBS approval is not required. There is no bar to implementing the agreement in principle on the basis of the Financial Administration Act.

30 Section 5 of the National Research Council of Canada Act gives the NRC the authority to appoint employees, fix their tenure, prescribe their duties, and subject to the approval of the Governor in Council fix their remuneration. Workforce adjustment is a matter of appointment and tenure, not remuneration; therefore, the Governor in Council approval is not required either.

31 It is clear that the TBS has no authority in the negotiation of the WFAP as it is one of the matters that have been delegated to the separate employers. Furthermore, there is no requirement under the legislation creating the NRC to seek out Governor in Council approval of the workforce adjustment initiatives. Therefore, the negotiation of the amendments to the WFAP was a legitimate exercise of the authority vested in the NRC by statute and Cabinet.

32 The fact that there is no signed agreement is not a precondition to the implementation of the agreement in principle. Exhibit 1, Tab C contains the agreed to amendments to the WFAP. No ratification process was required; the Senior Executive Committee of the NRC approved the amendments throughout the discussion period. This is sufficient to conclude that an agreement had been entered into and was binding on the respondent, notwithstanding that it had not been ratified by senior management. To support this conclusion, counsel for the complainant relied on the series of cases: Canadian Air Traffic Control Association v. Treasury Board, PSLRB file number 169-2-525, Hill v. Transport Canada, PSLRB file number 166-2-22582 and Hudgin et.al. v. Transport Canada, PSLRB file number 166-2-22583 and 22584. In these cases, a local agreement to change the shift schedule was binding on the employer even though it had not been ratified by senior management.

33 In Hudgin, the local employer’s representative had instructions to submit any agreement on shift schedules at the local level to a higher authority for approval before implementation. The implementation date of the revised schedule was not negotiated. According to the employer’s representative at the schedule discussions, the agreement was conditional on the approval of the higher authority. Adjudicator Wexler determined that the conditional nature of the agreement did not matter as the collective agreement did not require higher approval and the local discussions were envisioned by the collective agreement.

34 In Hill, implementation of the agreement was blocked by the higher authority. Adjudicator Burke ruled that, based on the language of the collective agreement, local management had the authority to negotiate local shift schedules. As there was no requirement in the collective agreement that a higher authority ratify the schedule, the lack of higher authority approval was not a bar to implementation of the local schedule.

35 In the present situation, no mention is made in the language of the collective agreement or the ancillary document requiring TBS approval or mandate in order to renegotiate the WFAP as agreed by the parties when the collective agreement was signed. The NRC has full delegated authority to enter into WFAP negotiations. Agreement was reached by the parties as evidenced by Exhibit 1, Tab C. The NRC had partially implemented the agreement. It should be ordered to complete implementation of the agreed amendments.

36 Implementation of agreed amendments is not a violation of section 107 of the Act; failure to implement is.

B. For the respondent

37 The NRC did not breach section 107 of the Act. It has and continues to recognize the terms and conditions of employment of the RCEA bargaining groups as they existed at the time notice to bargain was served for each group. The NRC could not implement amendments to the WFAP as no final collective agreements between the parties had been reached. Collective agreement negotiations had not been completed.

38 From the outset, the NRC representatives made it clear that any agreement reached related to amendment of the WFAP was conditional on the respondent securing a mandate from the TBS. Without this mandate, the NRC did not feel it could conclude an agreement related to the WFAP.

39 The respondent was not successful in securing a mandate that would allow it to implement the WFAP amendments prior to the signing of the collective agreements. Implementation was tied to the signing of new collective agreements. By including the WFAP in the collective agreements in the last round of collective bargaining, the parties made the WFAP part of the collective agreement that could only be changed within that process, regardless of what the policy stated. The problem here arises from the inclusion of the policy in the collective agreement without removing any language that conflicts with the collective agreement language. In particular, the requirement to review the WFAP every three years contradicts the provisions for review of the collective agreement as a whole, as set out in the body of the collective agreement.

40 As a separate agency, the respondent has been delegated the responsibility for management of its personnel. This includes the right to manage its personnel, classify its positions, determine terms and conditions of employment, set wages and adopt human resources policies. The NRC is subject to section 112 of the Act and requires approval of the Governor in Council to enter into a collective agreement. Section 112 is clear that this includes amending a collective agreement. If a policy is included in the collective agreement, as the WFAP is now, it requires an amendment to the collective agreement to amend the policy. For this reason, the respondent sought a mandate from the TBS to pursue amending the WFAP.

41 The NRC repeatedly advised the RCEA that it required a mandate from the TBS in order to complete an agreement on WFAP amendments. At each session, the complainant was updated on the progress of securing the mandate. The mandate that was secured did not allow the negotiation of WFAP amendments outside of the entire realm of bargaining of the collective agreements. For that reason, the NRC is following the terms and conditions of employment, including the WFAP, which was in effect at the date of the notice to bargain for each of the bargaining groups in question. The respondent never intended to implement any changes without a mandate. Faced with a difficult situation, the NRC implemented what it could by broadening the interpretation of the current policy language to include some of the terms agreed upon. For those changes that could not be read into the current language, a completed collective agreement was required prior to their implementation.

42 For these reasons, the complaint should be dismissed.

V. Reasons

43 In this case, the RCEA alleges that the employer failed to comply with section 107 of the Act, which requires the parties to observe the terms and conditions of employment during the statutory freeze period following delivery of notice to bargain, unless the parties otherwise agree.  The RCEA alleges that there was an agreement with the employer to make certain modifications to the WFAP, a policy which was incorporated into the collective agreements which were subject to the notices to bargain.  The complainant asserts that the respondent’s refusal to implement the remaining modifications on the basis that they had been unsuccessful in securing a negotiations mandate for WFAP amendments from TBS, constitutes an unfair labour practice contrary to subsection 190(1)(c) of the Act.  It is the complainant’s position that there was no legal authority requiring TBS approval of the agreed upon changes.

44 The respondent submits that it has not violated section 107 of the Act.  It states that at the outset, it imposed a condition on completion of any deal with the complainant related to amendment to the WFAP.  That was, it required TBS approval of its mandate to renegotiate the WFAP.  Any agreement could not be crystallized without it. 

45 I disagree with counsel for the complainant that this is a matter only of legal authority. The question before me is first whether or not the parties had reached an agreement to amend the terms and conditions of employment of the members of their bargaining group during the statutory freeze period invoked by section 107 of the Act. The uncontradicted evidence before me is that the employer made it clear to the bargaining agent that it would not enter into any agreement without securing approval from TBS before concluding any agreement to amend the WFAP.  There is no evidence that the RCEA objected to this approach.  There is also no evidence before me that the bargaining agent was misled or could have been misled as to what the imposition of such a condition would mean.

46 I must also consider the impact of incorporating a policy into a collective agreement.  When the parties to a collective agreement agree to include a policy into a collective agreement, that policy becomes part of the agreement, and must be treated like any other clause. In this case, the cycle for renegotiation of the WFAP conflicts with the agreed upon cycle for renegotiation of the rest of the collective agreement.

47 The issue before me in this case pertains only to section 107 and whether or not there was agreement to modify the terms of the collective agreement during the statutory freeze period on the terms and conditions of employment. The sole question before me is whether or not the parties had reached an agreement to amend the terms and conditions of employment of the bargaining groups members as anticipated by section 107 of the Act.  The question of mandate only becomes relevant if I can conclude from the evidence before me that the parties had reached an agreement and had mutually agreed to implement the changes as entitled by section 107 of the Act:

107. Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

(a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or

(b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

(Emphasis added)

48 If I conclude that a mutual agreement has been reached such as to meet the exception within section 107 of the Act, I must then determine whether the respondent had the authority to enter into such an agreement. If I conclude that it did, I must determine if the Boardhas the authority to enforce this mutual agreement.

49 I heard the evidence of both parties on the discussions that took place between the RCEA, the PIPSC and the NRC. The evidence of both parties is that agreement was reached on certain changes in the course of the discussions. The evidence of the respondent was clear that any agreement on its part was conditional on securing approval from the TBS to enter into an agreement. The respondent had no intention to enter into an agreement with the RCEA or PIPSC without this approval.

50 A review of the exhibits submitted by the parties clearly shows that there is no signed agreement, nor is there an agreed implementation date. Exhibit 1, Tab C contains 17 proposals on language which were exchanged by the parties and the PIPSC. Thirteen of them bear signatures or initials that purport to indicate the parties’ agreement according to the evidence I heard from both parties. At least one of the signed off articles has a notation that further discussions were required and would be held at a later date. The effective date for salary protection was struck out but nothing was put in its place to indicate when or if it would become effective. On another of the articles is the notation “if or should.” Given the varying interpretation of these words, and the impact on collective agreement language as a result, this type of notation indicates to me that a question remains and no agreement has been reached on that article.

51 A draft revision of the WFAP is found at Exhibit 1, Tab D. The very first line of the revised policy, in bold, is “Effective XXX 2012.” The parties had not agreed on the implementation date; the draft policy language was still under review in January 2012 according to the testimony of the witnesses. There were still matters outstanding including formal sign-off. In February 2012, the NRC advised the RCEA and the PIPSC that there was no mandate forthcoming that would allow them to sign an agreement outside of the collective bargaining process, and that an agreement would not be signed.

52 Is there sufficient evidence for me to find that an agreement between the parties existed in the absence of a formal document amending the collective agreement? Brown and Beatty, in Canadian Labour Arbitration, 4^th edition, section 4:1400 at paragraph 4-11, cite Re Nurses Association, Ottawa Civic Hospital and Trustees of the Ottawa Civic Hospital (1971), 22 LAC 325 as authority that I should tread lightly in determining that an agreement had crystallized. In that case, the parties had discussions related to amending the rates of pay for full-time instructors and teaching assistants at the hospital’s School of Nursing. The collective agreement did not justify the change proposed although the Hospital took the position that the union had agreed to the proposals. There was no formal document amending the collective agreement executed.

Had the parties executed a formal document amending the collective agreement that would be binding on them even though the amendments were not to be implemented until some future date. Absent such a document, however, it is our view that a board of arbitration should proceed with caution in dealing with evidence which seeks to vary the terms of the collective agreement itself. In the absence of positive statement of acceptance by both parties, it is difficult to say that, in the course of negotiations, an effective mutual consent has crystallized, even though the negotiators themselves may be of similar views on the matter. (See pages 327-328).

[Emphasis added.]

53 I find that prior to beginning discussions on the WFAP, a condition had been imposed by the employer on these negotiations, and that that condition had to be met in order to conclude an agreement to amend the twins of the collective agreement sufficient to meet the exception in section 107 of the Act.  In proceeding with discussions on the WFAP, the complainant did not object to the condition, or propose something instead of the condition.  This condition was one that was not part of the obligation itself, but “an external fact upon which the existence of the obligation depends”.  (See Furmstrom, Cheshire and Fifoot’s Law of Contract, 16^th edition at 196).

54 Based on the evidence of the respondent’s witness, it is clear that the NRC had no intention of concluding an agreement without the approval of the TBS, regardless of whether or not it was required. The NRC representatives undertook the discussions on a limited basis while the NRC sought out that authority. Only when the respondent’s representatives thought that they had a mandate did they embark on the discussions related to financial matters. To the NRC, any agreement reached in the meantime was conditional. The existence of this condition was conveyed repeatedly to the other parties both at the table from the outset and via email as is evidenced by Exhibit 3.  The condition was not impossibility and the NRC believed it was achievable prior to the conclusion of the WFAP discussions. Despite this, it was not forthcoming. Unlike the fact scenarios described in CATCA, Hudgin, and Hill, no agreement had been reached which required higher approval prior to implementation.

55 There is a statutory threshold to be met by the parties to convince me that an agreement had been reached that would amend the terms and conditions of employment during the statutory freeze period imposed by section 107 of the Act. The parties here did not have, in my opinion, an agreement or an agreement in principle but rather a conditional agreement. Consistent with the decisions in PSAC v. Canada and PIPSC v. Canada Revenue Agency, cited by the complainant, the respondent implemented those changes that were authorized by the policy as it existed at the time notice to bargain was served. This is not in my opinion part performance of the alleged agreement sufficient to waive the condition and establish mutual agreement. It was an exercise of an existing discretionary authority by the NRC.

56 I agree with the point made by counsel for the respondent in argument that the problem in this case arose when the policy was included in the collective agreement without removing language which conflicts with the rest of the collective agreement.  The provision for a review “every three years” in the WFAP conflicts with the duration article of the collective agreement.  It is not as specific as language dealt with in the cases cited by the complainant related to bargaining freezes and amendments to collective agreements.

57 It is clear to me, from the testimony of the witnesses and the documents purporting to be the agreement in principle, that the parties had not reached a meeting of the minds and mutual consent had not crystallized sufficient to invoke the exception to section 107 of the Act. This is particularly so given that the agreement was reached after notice to bargain was served by each of the bargaining groups and the statutory freeze on terms and conditions was in effect as early as December 1, 2010 and as late as October 11, 2011 (depending on the bargaining group). The parties were not discussing the WFAP with section 107 in mind. Their intention was to secure an agreement that would amend a portion of the collective agreement.

58 As I have concluded that an agreement had not been finalized relative to the amendment of the WFAP, I do not have to deal with the issue of whether the NRC required a mandate from the TBS to negotiate amendments to the WFAP.

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

VI. Order

60 The complaint is dismissed.

March 20, 2013.

Margaret Shannon,
a panel of the Public Service
Labour Relations Board