FPSLREB Decisions

I. Application before the Board

1 On March 29, 2011, the Public Service Alliance of Canada (“the bargaining agent”) served notice to bargain on the House of Commons (“the employer”) on behalf of all employees of the Security Services directorate of the House of Commons working as scanners bargaining unit (“the bargaining unit”) under section 37 of the Parliamentary Employment and Staff Relations Act (PESRA). The last collective agreement for the bargaining unit expired on March 31, 2011.

2 The bargaining unit is composed of approximately 50 to 55 employees.

3 Negotiation sessions between the parties took place on October 11 and 12, 2011, and on January 24 and 25 and March 6, 2012.

4 By letter dated June 26, 2012, pursuant to section 50 of the PESRA, the bargaining agent requested arbitration for the bargaining unit. The bargaining agent’s letter also included a list of the terms and conditions of employment it wished to have referred to arbitration.

5 On July 6, 2012, 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.

6 By letter of August 15, 2012, the bargaining agent provided its position on the additional terms and conditions of employment that the employer wished to refer to arbitration.

7 The terms of reference for the arbitration board (“the Board”) were forwarded by the Chairperson of the Public Service Labour Relations Board on September 14, 2012 to the Board members.

8 On January 23, 2013, the parties provided the Board with their respective submissions.

9 At the hearing, the Board was informed that only the following bargaining agent’s proposals remained in dispute:

Article 7:	Employee representatives
Article 17:	Designated paid holiday
Article 18:	Other Leave With or Without Pay
Article 19:	Sick leave With Pay
Article 21:	Hours of Work and Overtime
Article 23:	Clothing
Article 24:	Call-back Pay
Article 30:	Health and Safety
Article 40:	Seniority
Article 41:	Duration
New appendix:	Vacation Scheduling
New appendix:	Parking
New article:	Bilingual bonus
New article:	Social Justice Fund
Appendix A:	Rates of Pay

10 As for the employer’s proposals, the Board was informed that only the following remained in dispute:

Clause 9.03:	Technological Change
Clause 18.12:	Leave with pay for Family‑Related Responsibilities
Clauses 20.01 to 20.08:	Severance Pay
Clause 21.05:	Shift Work
Clause 28.04:	Discipline
Article 41:	Duration
Appendix A:	Rates of Pay

II. The award

11 The bargaining agent and the employer framed their submissions in light of the considerations to be applied by an arbitration board set out as follows in section 53 of the PESRA:

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,

(e) 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.

12    In rendering this award, the Board considered the provisions of the PESRA.

A. Article 7: Employee Representatives

13    The bargaining agent proposed to remove the reference to consultation with the employer in clause 7.02 with respect to the determination of the bargaining agent’s representative. The bargaining agent also asked that article 7 be amended to provide for time off with pay for the presidents of the locals. The employer opposed the proposals. The Board has determined that the bargaining agent’s proposals will not be included in the arbitral award and the existing clause will remain unchanged.

B. Clause 9.03: Technological Change

14    The employer proposed to amend clause 9.03 to reduce the notice period from 120 days to 90 days. The bargaining agent opposed the proposal. The Board has determined that the employer’s proposal will not be included in the arbitral award and the existing clause will remain unchanged.

C. Clause 17.01: Designated Paid Holidays

15    The bargaining agent proposed to amend clause 17.01 by adding an additional designated paid holiday, namely Family Day. The employer opposed the proposal. The Board has determined that the bargaining agent’s proposal will not be included in the arbitral award.

D. Article 18: Other Leave with or Without Pay

16    The employer proposed that clause 18.12(c) be amended to replace the five days’ maximum entitlement for leave with pay for family related responsibilities with a maximum of 35 hours. The bargaining agent opposed the employer’s proposal. The Board has decided that the proposal will not be included in the arbitral award.

17    The bargaining agent proposed that clause 18.12(c) be amended to increase from five to eight days of leave with pay for family related responsibilities. The employer opposed the proposal. The Board has determined that the bargaining agent’s proposal will not be included in the arbitral award.

18 The bargaining agent proposed to amend clause 18.12 to give discretion to the employer to grant more family related leave. The employer opposed the bargaining agent’s proposal. The Board has decided that the proposal will not be included in the arbitral award and the existing clause will remain unchanged.

19 The bargaining agent also proposed that clause 18.16, dealing with leave with pay for marriage, be replaced by a one-time entitlement of 35 hours of vacation leave with pay. The employer opposed the proposal. The Board recognizes that the core public service and other employers such as the Senate, for one of its groups, have already replaced the marriage leave provision by a one-time 35 hours vacation leave entitlement. Moreover, in a recent arbitral award of February 1, 2013 involving the Library of Parliament as the employer and its Research Officers and Research Assistants Sub-group employees (2013 PSLRB 10), the employer agreed at the hearing with the bargaining agent’s proposal to replace the marriage leave with a one-time entitlement of 35 hours of vacation leave. As a result, all groups for which the Library of Parliament is the employer now enjoy a one-time entitlement to 35 hours of vacation leave. The Board has decided that the marriage leave currently provided in clause 18.16 will be converted into a one-time entitlement of 35 hours of vacation leave. Consequently, the Board has decided that the bargaining agent’s proposal will be included in the arbitral award as follows:

18.16 One-time vacation leave credit

1. Employees with less than two (2) years of continuous service and all new employees shall be credited a one‑time entitlement of thirty-five (35) hours of vacation leave with pay upon reaching two years of continuous House of Commons service.
2. Transitional Provisions
   
   Employees with more than two years of continuous House of Commons service shall be credited a one‑time entitlement of thirty-five (35) hours of vacation leave with pay.
3. The vacation leave credits provided in clauses 18.16 (a) and (b) above shall be excluded from the carry‑over of vacation leave provisions stipulated in paragraph 16.07.

20 At the hearing, the bargaining agent proposed to replace the volunteer leave specified at clause 18.17(a) by seven hours’ leave of a personal nature. The Board has determined that the bargaining agent’s proposal will be included in the arbitral award in that the volunteer leave provided for in clause 18.17(a) is now replaced in its entirety by a personal leave with pay of up to seven hours for each fiscal year. Clause 18.17(a) is amended as follows:

18.17 Personal leave

1. Subject to operational requirements as determined by the Employer and with an advance notice of at least five (5) working days, the employee will be granted, in each fiscal year, a single period of up to seven (7) hours of leave with pay for reason of a personal nature.

21  The bargaining agent proposed that a new clause at Article 18 be added to allow employees to take leave with pay for up to three hours per appointment to attend medical and dental appointments. The employer opposed the proposal. The Board has decided that the bargaining agent’s proposal will be included in the arbitral award as follows:

An employee shall be granted two (2) hours per visit with pay to attend medical or dental appointments. Any hours spent at medical or dental appointments beyond the two (2) hours may, at the employer’s discretion, be deducted from the employee’s sick leave.

E. Clause 19.01: Sick Leave with Pay

22 The bargaining agent proposed that clause 19.01 be amended to increase the sick leave credit from 8.75 to 9.92 hours for each month. The bargaining agent also proposed that employees be asked to produce a medical certificate only after more than three days of absence. The employer opposed the proposals. The Board has decided that the bargaining agent’s proposals will not be included in the arbitral award and the existing clause will remain unchanged.

F. Article 20: Severance Pay

23 The employer proposed to amend the severance pay article by enhancing severance pay in a situation of a first lay-off and to offer pro-rated severance pay for partial years of continuous employment for indeterminate employees.

24 The employer also proposed that severance pay for retirements or resignations cease to accumulate on the date following the arbitral award. Under that proposal, employees would then have the option of maintaining their current severance entitlements, cashing them out in part or in total, or keeping them until their last day of employment with the employer. The bargaining agent opposed the employer’s proposal. The Board has decided that the employer’s proposal will be included in the arbitral award and that article 20 will be amended as follows:

Effective [the day following the arbitral award], Clauses 20.01 (b) & (d) are deleted from the collective agreement.

20.01  Under the following circumstances and subject to clauses 20.02, 18.09 (d), 18.10 (c) (v) and 18.11 (e), an employee shall receive severance benefits calculated on the basis of their weekly rate of pay:

(a) Lay-off

(i) On the first (1^st) lay-off, for the first (1^st) complete year of continuous employment, two (2) weeks’ pay, or three (3) weeks’ pay for employees with ten (10) or more and less than twenty (20) years of continuous employment, or four (4) weeks’ pay for employees with twenty (20) or more years of continuous employment, plus one (1) week’s pay for each additional complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty-five (365).

(ii) On the second (2^nd) or subsequent lay-off, one (1) week’s pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty‑five (365), less any period in respect of which the employee was granted severance pay under paragraph (a)(i).

(b) Resignation

On resignation, subject to clause 20.01 (d) and with ten (10) or more years of continuous employment, one half (1/2) week’s pay for each complete year of continuous employment with a maximum of thirteen (13) weeks’ pay.

(c) Rejection on Probation

On rejection on probation, when an employee has completed more than one (1) year of continuous employment and ceases to be employed by reason of rejection during a probationary period, one (1) week’s pay for each complete year of continuous employment with a maximum benefit of twenty-seven (27) weeks.

(d) Retirement

On retirement, when an employee is entitled to an immediate annuity under the Public Service Superannuation Act or when the employee is entitled to an immediate annual allowance, under the Public Service Superannuation Act, one (1) week’s pay for each complete year of continuous employment with a maximum of thirty (30) weeks’ pay.

(e) Death

In the event of an employee’s death, there shall be paid to the employee’s estate, one (1) week’s pay for each complete year of continuous employment regardless of any other benefit payable with a maximum of thirty (30) weeks’ pay.

(f) Termination for Incapacity

The Employer agrees that an employee terminated from employment for incapacity shall, on termination of their employment, be entitled to severance pay on the basis of one (1) week’s pay for each complete year of continuous employment with a maximum of twenty-eight (28) weeks’ pay.

20.02 (a) For the purpose of this Article, all continuous employment shall count for the purpose of calculating severance pay.

(b) The amount of severance pay shall be reduced by any period in respect of which the employee was already granted severance pay, retirement leave, or a cash gratuity in lieu thereof.

20.03 The weekly rate of pay referred to in the above clauses shall be the weekly rate of pay to which the employee is entitled for the classification prescribed in the employee’s certificate of appointment on the date of the termination of the employee’s employment.

For greater certainty, payments made pursuant to 20.04 – 20.08 or similar provisions in other collective agreements shall be considered as termination benefits for the administration of this clause.

20.04 An employee who resigns to accept an appointment with an organization listed in Schedule V of the Financial Administration Act shall be paid all severance payments resulting from the application of 20.01 (b) or 20.04 – 20.08.

20.05 Severance Termination

(a) Subject to 20.01 (b) above, indeterminate employees on [the day following the arbitral award] shall be entitled to a severance payment equal to one (1) week’s pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty-five (365), to a maximum of thirty (30) weeks.

(b) Subject to 20.01 (b) above, term employees on [the day following the arbitral award] shall be entitled to a severance payment equal to one (1) week’s pay for each complete year of continuous employment, to a maximum of thirty (30) weeks.

Terms of Payment

20.06 Options

The amount to which an employee is entitled shall be paid, at the employee’s discretion, either:

(a) As a single payment at the rate of pay of the employee’s substantive position as of [the day following the arbitral award], or

(b) As a single payment at the time of the employee’s termination of employment, based on the rate of pay of the employee’s substantive position at the date of termination of employment, or

(c) As a combination of (a) and (b), pursuant to 20.07 (c).

20.07 Selection of Option

(a) The Employer will advise the employee of his or her years of continuous employment no later than three (3) months following the date of the arbitral award.

(b) The employee shall advise the Employer of the term of payment option selected within six (6) months from the date of the arbitral award.

(c) The employee who opts for the option described in 20.06 (c) must specify the number of complete weeks to be paid out pursuant to 20.06 (a) and the remainder to be paid out pursuant to 20.06 (b).

(d) An employee who does not make a selection under 20.07 (b) will be deemed to have chosen option 20.06 (b).

20.08 Appointment from a Different Bargaining Unit

This clause applies in a situation where an employee is appointed into a position in the Scanner Group bargaining unit from a position outside the Scanner Group bargaining unit where, at the date of appointment, provisions similar to those in 20.01 (b) and (d) are still in force, unless the appointment is only on an acting basis.

(a) Subject to 20.02 above, on the date an indeterminate employee becomes subject to this agreement after [the date of the arbitral award], he or she shall be entitled to a severance payment equal to one (1) week’s pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty-five (365), to a maximum of thirty (30) weeks, based on the employee’s rate of pay of his or her substantive position on the day preceding the appointment.

(b) Subject to 20.02 above, on the date a term employee becomes subject to this agreement after [the date of the arbitral award], he or she shall be entitled to a severance payment payable under 20.06 (b), equal to one (1) week’s pay for each complete year of continuous employment, to a maximum of thirty (30) weeks, based on the employee’s rate of pay of his or her substantive position on the day preceding the appointment.

(c) An employee entitled to a severance payment under sub-paragraph (a) or (b) shall have the same choice of options outlined in 20.06, however the selection of option must be made within three (3) months of being appointed to the bargaining unit.

G. Article 21: Hours of Work and Overtime

25 The bargaining agent representative made it clear that the issue of scheduling overtime in article 21 is very important and that it is still a difficult issue between the parties. While the Board understands that some limited progress might already have been made on some of these matters by the parties themselves, it remains that a number of operational issues related to hours of work, overtime and seniority remain in dispute between the parties.

26 The members of this Board met to discuss the issues. They agree that, given the operational nature of the issues, their impact on employees and operations, it would be in the best interests of the parties if they came up with a negotiated agreement. The award of the Board is, to renew article 21 without any changes except for clauses 21.08 and 21.23.

27 As for clause 21.08, the Board discussed the bargaining agent’s proposal to introduce a new advance-notice provision for shift schedules and for shift changes, with premium payments when shifts are changed. While the Board understands the operational requirements that would be imposed on the employer by that proposal, it also recognizes the inconvenience to employees of last-minute shift changes. The Board agrees with the general concept that there should be some advance-notice provision for shift schedules and for shift changes. As part of the implementation of this award, the Board has decided to ask the parties to work together in the three months following the date of this arbitral award to come up with language for the collective agreement on this issue that achieves this purpose. As stated later in this arbitral award, the Board will remain seized for a period of three months to resolve any disputes between the parties on this matter.

28 The bargaining agent proposed that clause 21.23 be amended to include a definition of “reverse order of seniority” as well as to remove the reference to “gender balance.” The bargaining agent also proposed that clause 21.23 be amended to include a subsection so that employees identified to work relief assignments can select their assignments on the basis of seniority. While the employer agreed to the inclusion of the definition of “reverse order of seniority,” it opposed the removal of the reference to “gender balance” and to the addition of allowing employees to select their assignments. The Board has determined that only the part of the bargaining agent’s proposal dealing with the definition of “reverse order of seniority” will be included in the arbitral award. Clause 21.23 will be amended as follows:

21.23 Seniority Relief Assignments

The employer shall schedule relief assignments during periods when the House of Commons is not scheduled to be in session using “reverse order of seniority” as the determining criterion, meaning that the least senior employees shall be identified for relief assignment. The Employer may take into account requirements for gender balance and the appropriate number of certified personnel when scheduling relief assignments, but will do so adjusting the operation of the “reverse order of seniority” criterion to the minimum necessary extent.

H. Article 23: Clothing

29 At the hearing, the employer agreed with the bargaining agent to amend clause 23.03(e) to include six short-sleeved shirts and six long-sleeved shirts. The employer also agreed with the bargaining agent’s proposal to add one vest to clause 23.03(n), one vest carrier to clause 23.03(o) and one name tag to clause 23.03(r). The Board has decided that clause 23.03 will be amended by adding the following:

• Clause 23.03 (e)  6 short-sleeved shirts and 6 long-sleeved shirts
• Clause 23.03 (n) 1 vest
• Clause 23.03 (o) 1 vest carrier
• Clause 23.03 (r) 1 name tag

30 The Board has decided that the other bargaining agent and employer proposals for clause 23.03 will not be included in the arbitral award and the clause will remain unchanged except as provided for above.

I. Article 24: Call-Back Pay

31 The bargaining agent proposed to amend clause 24.01(a) and (b) to change the payment rate for call backs. The employer opposed the proposal. The Board has decided that the proposal will not be included in the arbitral award and the existing clauses will remain unchanged.

J. Article 28: Discipline

32 The employer proposed to extend the two-year period by the time, when applicable, an employee is on leave without pay for more than three months. The bargaining agent opposed the proposal. The Board has decided that the proposal will not be included in the arbitral award and the existing article will remain unchanged.

K. Article 30: Health and Safety

33 The bargaining agent proposed removing the word “reasonable” from clause 30.01 and the phrase “within reason” from clause 30.06(v). The bargaining agent also proposed that clause 30.08 be amended to specify that a representative from the bargaining unit will be allowed time off with pay to attend Joint Occupational Safety and Health committee meetings. The employer opposed the proposal. The Board has decided that the proposal will not be included in the arbitral award and the existing clauses will remain unchanged.

L. Article 40: Seniority

34 The members of the Board were told that the bargaining agent’s proposal was simply to address situations of seniority when two or more employees were hired on the same day and a determination has to be made as to who is the more “senior” employee. The bargaining agent proposed that, in a tie, the original hiring dates would be the first criteria to take into consideration, and that the alphabetical order of the employees’ names would be the second criteria. The Board agrees with the general concept contained in the bargaining agent’s proposal in situation of a tie. As part of the implementation of this award, the Board has decided to ask the parties to work together in the three months following the date of this arbitral award to come up with language for the collective agreement on that issue that achieves this purpose. As stated later in this arbitral award, the Board will remain seized for a period of three months to resolve any dispute between the parties on this matter.

35 The bargaining agent also asked to amend clause 40.05 and 40.06 to have the seniority list revised every month and that employees who are laid off retain their seniority for twenty-four (24) months from the date of lay-off. The employer opposed the proposals. The Board has decided that the proposals will not be included in the arbitral award and the existing clauses will remain unchanged.

M. Article 41: Effective Date and Duration

36 The bargaining agent proposed that the new collective agreement expire on March 31, 2014. The employer proposed that, unless expressly stipulated, the provisions of the arbitral award should become effective on the date of the award and that they should remain in force until March 31, 2014. The Board has determined that clause 20.1 will be amended as follows:

20.1 Unless otherwise expressly stipulated, the provisions of this agreement shall become effective on the date of the arbitral award and shall remain in force until March 31, 2014.

N. Bilingual Bonus (new)

37 The bargaining agent proposed that an employee who occupies a position designated bilingual receive an annual payment of $800. The bargaining agent also proposed that an employee who does not occupy a position designated bilingual would perform translations only on a voluntary basis. The employer opposed the proposals.

38 The Board noted that no employees in the bargaining units for which the House of Commons or the Senate is the employer have the bilingual bonus. The Board also noted that, in the decision [1990] C.P.S.S.R.B. No. 153, the Board did not include the bilingual bonus proposed in the arbitral award. Therefore, the Board has determined that these proposals will not be included in the arbitral award.

O. Social Justice Fund (new)

39 The bargaining agent proposed that the employer contribute to the bargaining agent’s Social Justice Fund. The employer opposed the proposal. The Board has determined that the proposal will not be included in the arbitral award.

P. Parking (new)

40 The bargaining agent proposed that a free parking pass be issued to employees and that the employer reimburse employees the premium equivalent to the taxes to be paid for the parking spot. The employer opposed the proposal. The Board has decided that the proposal will not be included in the arbitral award.

Q. Vacation Scheduling (new)

41 The bargaining agent proposed to add new language about how vacation scheduling is done. The employer opposed the proposal. The Board has decided that the proposal will not be included in the arbitral award.

R. Appendix “A”: Rates of Pay

1. Wage grid adjustments

42 The bargaining agent proposed to reduce from the current seven to four the number of increments in the wage grid. Under its proposal, the current minimum and maximum rates of pay at each of the 10 classification levels would be maintained but would be spread over only four increments. The bargaining agent’s main argument for the reduction from seven to four increments is that it does not take six years for a scanner to become fully operational. The employer opposed the proposal.

43 The Board is of the view that, in 2004, a single job evaluation plan and a universal pay scale were put in place for the scanners which included the existing seven increments. No evidence was adduced of any change that would justify the reduction in the increments as requested by the bargaining agent. Furthermore, there was no evidence that there has been a change to the duties and responsibilities of the scanners that would justify changes. Moreover, the Board is of the view that there are no recruitment or retention issues that would suggest that there is problem with the current wage grid. Finally, the Board is mindful of the internal relativity with other groups and the larger impact that a decision to amend the wage grids without sufficient evidence may have on other bargaining units. The Board has decided that the bargaining agent’s proposal will not be included in the arbitral award and the number of increments in the wage grid will remain unchanged.

2. Economic Increase

44 The employer proposed economic increases of 1.5% on April 1, 2011, 1.5% on April 1, 2012, and 1.5% on April 1, 2013. However, the employer is prepared to offer 1.75% on April 1, 2011, 1.5% on April 1, 2012, and 2% on April 1, 2013 if its severance pay proposal is included in the arbitral award. This would mean a 0.25% increase on April 1, 2011 and a 0.50% increase on April 1, 2013 as additional compensation for the severance pay amendments over the proposed economic increase of 1.5% per year of the collective agreement. The employer submitted that that would be similar to the economic increases agreed to in other settlements and arbitration awards. The employer maintained that no recruitment or retention problems exist within the bargaining unit and that no internal relativity issues justify any other improvements.

45 The bargaining agent proposed economic increases of 3% on April 1, 2011, 3% on April 1, 2012, and 3% on April 1, 2013. The bargaining agent’s position is based on the Consumer Price Index as well as other factors, including labour market trends and wage settlements in the quasi-public sector and the federal public sector.

46 As noted earlier, the Board accepted the employer’s proposal on severance pay. The Board does not find that there are demonstrated needs, such as recruitment and retention issues, that require other improvements to the rates of pay.

47 Therefore, the Board has determined that the economic increase should be consistent with that negotiated by other bargaining units in the federal public administration. The Board awards total economic increases of 1.75% effective April 1, 2011, 1.5 % effective April 1, 2012, and 2% effective April 1, 2013.

III. General

48 The Board will remain seized of this matter for a period of three months from the date of this award in the event that the parties encounter any difficulties in its implementation.

April 5, 2013.

Linda Gobeil,
for the Public Service
Labour Relations Board