FPSLREB Decisions

I. Matter before the Chairperson of the Public Service Labour Relations Board

1 By letter of October 26, 2012, the Public Service Alliance of Canada (“the bargaining agent”) requested arbitration in respect of the bargaining unit composed of all employees of the employer engaged in the carrying out of survey activities primarily outside of Statistics Canada offices (“the bargaining unit”). In 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 a first letter of November 5, 2012, the Statistics Survey Operations (“the employer”) responded to the terms and conditions of employment that the bargaining agent wished to refer to arbitration. Several jurisdictional objections were raised by the employer. 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 By a second letter of November 5, 2012, the employer more fully described its various jurisdictional objections in response to certain terms and conditions of employment that the bargaining agent wished to refer to arbitration. The employer clarified its objections as follows:

• in regards to the bargaining agent’s proposal for a new definition of “Indeterminate Employee” in article 2 (Interpretation and Definitions), the employer objected specifically on the basis that it violates paragraphs 150(1)(a), (c) and (e) of the Public Service Labour Relations Act and that it encroaches on paragraph 4(2)(b), subsection 5(1) and section 7 of the Statistics Act;
• in regards to the bargaining agent’s several proposals for article 20 (Job Security), the employer objected on the basis that they are in violation of paragraphs 150(1)(a), (c) and (e) of the Public Service Labour Relations Act as well as interfering with paragraph 4(2)(b) and section 7 of the Statistics Act; and
• in regards to the bargaining agent’s proposal for new clauses 23.14 (Work Assignment – Field Interviewers) and 23.15 (Assignment of Field Survey Work – Senior Interviewers), the employer objected on the basis that they contravene paragraphs 150(1)(a) and (e) of the Public Service Labour Relations Act as well as interfere with paragraph 4(2)(b) and section 7 of the Statistics Act.

That letter and supporting material are attached as schedule 3.

4 By email of November 15, 2012, the bargaining agent provided its response to the jurisdictional objections raised by the employer. The bargaining agent withdrew the last sentence of its proposal for clauses 20.06 and 20.07 but maintained its position with respect to its remaining proposals for article 20 (Job Security). The bargaining agent further stated its position that the rest of its proposals do not contravene the Public Service Labour Relations Act or the Statistics Act and therefore should not be excluded from the arbitration process. That email is attached as schedule 4.

5 Following a review of the materials submitted, the Dispute Resolution Services of the Public Service Labour Relations Board wrote to the employer on November 20, 2012, at my request, requiring the employer to provide its position with respect to a new paragraph at article 49 (Duration).

6 By email of November 26, 2012, the employer provided its comments on the bargaining agent’s email of November 15, 2012. The employer maintained its jurisdictional objections to several of the bargaining agent’s proposals for article 20 (Job Security). The email of November 26, 2012 is attached as schedule 5.

7 By email of November 27, 2012, the employer withdrew its specific proposal on a new paragraph at article 49 (Duration). That email is attached as schedule 6.

8 On January 11, 2013, the parties were informed that the Chairperson of the Public Service Labour Relations Board had decided to hold a hearing so that the jurisdictional objections raised by the parties could be addressed. The hearing was set for March 25 and 28, 2013.

9 By email of March 19, 2013, the bargaining agent withdrew its specific proposals on clauses 20.02, 20.06, 20.10, 20.13, 20.14, 20.15 and 20.16 for article 20 (Job Security). The bargaining agent also submitted amended proposals for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers). In the same email, the bargaining agent maintained its position on all other matters of jurisdiction. That email is attached as schedule 7.

10 By email dated March 21, 2013, the employer objected to the bargaining agent’s amended proposals for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers), on the basis that they contravene paragraphs 150(1)(a), (c) and (e) of the Public Service Labour Relations Act as well as paragraph 4(2)(b) and section 7 of the Statistics Act. That email is attached as schedule 8.

11 Prior to the hearing, the parties had resolved all of the outstanding jurisdictional objections, save for a new definition of “Indeterminate Employee” in article 2 (Interpretation and Definitions) and new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers). That hearing took place on March 27 and 28, 2013.

II. Hearing

12 At the commencement of the hearing, both parties provided opening statements outlining their positions. At the hearing, the bargaining agent withdrew its specific proposal on a new definition of “Indeterminate Employee” in article 2 (Interpretation and Definitions).

13 The bargaining agent proposed to refer to arbitration an amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers). It is the employer’s position that the amended proposal contravenes section 150 of the Public Service Labour Relations Act as it prescribes how the employer must assign duties to employees, which creates a limitation on the employer’s ability to hire. The obligation to assign hours of work in order of seniority establishes how the employees will be offered work. The structure of the article demonstrates the impingement on the employer’s right to assign work. The amended proposal for a new clause 23.14 reads as follows:

23.14 Hours of Work Assignment – Field Interviewers

1. Hours of work shall be offered in order of seniority, based on the following preference order:
   
   1. Indeterminate employees whose place of residence is within the survey cluster where the hours are to be worked.
   2. Indeterminate employees whose place of residence is within twenty (20) kilometers of the survey cluster where the hours are to be worked.
   3. Term employees whose place of residence is within the survey cluster where the hours are to be worked.
   4. Term employees whose place of residence is within twenty (20) kilometers of the survey cluster where the hours are to be worked.
2. In the event there are no available employees whose place of residence is within the survey cluster or within a twenty (20) kilometer radius of the survey cluster, then the Employer will either:
   
   1. hire a new employee to work the survey
      
      or
   2. offer the hours to the employee whose residence is nearest to the cluster.
3. Should the Employer elect to offer hours of work consistent with b) ii) above, in the event that there are two or more employees whose place of residence is equidistant to the cluster within five (5) kilometers, the hours shall be offered in order of seniority.
4. Hours of work shall be offered first to available employees who are trained to work the survey, following the process outlined in a) above.
5. In the event that there are insufficient trained employees, the Employer shall offer the hours and provide the necessary training, following the process outlined in a) above.
6. Employees must meet language requirements to work a survey.

14 The bargaining agent also proposed to refer to arbitration an amended proposal for a new clause 23.15 (Hours of Work Assignment – Senior Interviewers). The amended proposal deals with the assignment of work to senior interviewers on the basis of geographies. The employer’s position is that the amended proposal requires the employer to assign work based on a fixed geography, which affects the organization of work and the assignment of duties, contrary to paragraph 150(1)(e) of the Public Service Labour Relations Act. The amended proposal for a new clause 23.15 reads as follows:

23.15 Hours of Work Assignment – Senior Interviewers

1. Hours of work associated with continuous surveys shall continue to be offered to Senior Interviewers based on geographies in effect as of December 1, 2011.
2. Should the Employer elect not to staff a geography, the hours of work associated with that geography shall first be offered to Senior Interviewers working in the same Regions in order of proximity to that geography.
3. Hours of work associated with supplementary surveys shall be assigned by the Employer first to Senior Interviewers in the province where the supplementary surveys are to be conducted, and shall be assigned in such a way as to ensure that hours of work are maximized by seniority according to employees’ availability.

15 The bargaining agent says that the amended proposals for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) deal with the scheduling of work hours that panels of the Public Service Labour Relations Board have recognized as appropriate for collective bargaining under the Parliamentary Employment and Staff Relations Act. Four different bargaining units at the House of Commons and the Senate pursued through arbitration proposals dealing with hours of work.

A. Summary of the evidence

16 Both parties called evidence to provide context for their respective positions.

1. For the employer

17 The employer called Guy Oddo, the director general for regional offices at Statistics Canada, as a witness. Mr. Oddo has overall responsibility for the management of field surveys and telephone surveys. That responsibility involves planning and establishing a budget for specific surveys. It also includes distributing work and managing the workforce.

18 Mr. Oddo defined a number of terms in order to understand the context in which the proposals at issue can be evaluated.

19 An ongoing survey is a survey that the employer estimates will continue for the foreseeable future in its planning assumptions. An example of an ongoing survey is the Labour Force Survey, which is used to measure the number of jobs created and the number of persons unemployed in the labour force on a monthly basis. There are approximately 12 ongoing surveys. Some surveys deal specifically with businesses, others with the public, an example of which is the Household Survey.

20 An ad hoc survey is one that the employer is asked to conduct on one occasion or on an irregular basis that is not planned with much advance notice. The Survey of Financial Security, of the income and wealth of Canadians, is a survey that is done on an irregular basis.

21 Employees in the bargaining unit do not have a specific schedule that requires them to come into the office. They have to go to the survey respondents’ homes in order to complete questionnaires for each survey. They make appointments with survey respondents to conduct their interviews. Because most of the work involves interviewing the Canadian public in their homes, the work is carried out on evenings and weekends.

22 General training is given to all new hires. Employees assigned to a specific survey are given specific training for that survey. Training for an individual survey involves explaining to employees why the survey is being done, providing employees with the tools to conduct the survey and explaining to the employees the content of the survey in order to convince Canadians to complete the questionnaire. The employees are also provided with more technical training on the computer, as each survey is unique. If it is an ongoing survey, employees are given refresher training.

23 The factors that must be taken into account in staffing field interviewers to perform the surveys are the workload and geography and the distance to travel from the interviewer’s home to the survey respondent’s. Surveys conducted by employees in the bargaining unit are done by cluster. A survey cluster includes groupings of dwellings, identified by the methodologists, which constitute samples for the survey. The cluster is not defined by geography. The geography changes for each sample and each survey. The extent of the variance between survey clusters can be very small, as in a densely populated area such as downtown Toronto, or a very large area, such as northern Alberta. The dwellings where the interviewers have to go to conduct the survey will change from one survey to another. Other considerations include the timing of the survey, the budget, the availability of interviewers and the workload already undertaken. If it is not a new survey, another factor is whether the employees have been trained before on this survey. If other surveys have already been assigned to employees, and if employees have already worked the maximum number of hours and a new survey comes in, there may be a need to assign work to new surveyors.

24 Because work is scheduled seven days in advance for the next month, management does not want to produce a schedule with a lot of changes. Management asks employees on a regular basis to indicate their availability. There is an attempt made to take into account the availability of employees when work is scheduled. Management considers bringing in new hires when employees are not available to do a survey either because they are working on another survey or they are just not available. It may not be practical to pull employees off a survey that is ongoing. If the employer is not going to be able to get timely results because of the demands of the existing workload with the current capability, it will consider bringing in new hires. In addition, if the cost of travel on account of the distance to survey respondents is too expensive, the employer will hire.

25 There are two distinct groups of employees: ongoing employees, whose term of employment has no end date; and term employees, whose term has a specific end date. All employees are hired under the authority of the Statistics Act. They are all part-time employees and have the same contract of employment.

2. For the bargaining agent

26 The bargaining agent called Morgan Gay, the bargaining agent’s chief negotiator as a witness, to provide context. Mr. Gay has been employed by the bargaining agent for approximately 6.5 years and has been involved in representing the employees in the bargaining unit since February 2011. Since that time, Mr. Gay has met with a number of employees and has engaged in a prioritisation exercise.

27 Mr. Gay has participated in 11 bargaining sessions with the employer. The main topics discussed in bargaining have been hours of work, assignments and the workweek in the context of pensions. For the employees in the bargaining unit, the number one issue is hours of work and surveys. Mr. Gay referred to his opening remarks made in bargaining to the effect that there were a number of unresolved issues from the last round of bargaining. One of the issues left on the table at that time was seniority recognition for hours of work. Mr. Gay stated that circumstances had changed since the last round as there had been arbitral awards involving the House of Commons and the Senate where seniority for the purpose of scheduling had been recognized by panels of the Public Service Labour Relations Board under the Parliamentary Employment and Staff Relations Act. Mr. Gay stated that he was trying to drive home to the employer that the bargaining agent wanted for the employees in the bargaining unit the same seniority rights for the purpose of scheduling hours of work.

28 Mr. Gay asked the employer representatives in bargaining to help the bargaining agent understand the factors that management took into account in scheduling work. The employer gave the bargaining agent a full presentation on the factors used in scheduling. It was apparent from the presentation that the number of hours required are linked to a survey’s sample size. The bargaining agent had tabled a proposal in February 2012, for a new clause 23.14 (Work Assignment – Field Interviewers), that would have required the employer to schedule hours of work based on employee seniority and, where possible, employees’ preferred hours in the following preference order: a) indeterminate employees, and b) term employees. In its presentation to the bargaining agent, the employer replied that when seniority is applied as a primary consideration during the scheduling process within the current work environment, cost, quality and/or response are affected.

29 Following the employer’s presentation on scheduling hours of work, the bargaining agent stated that it wanted to have a discussion with management. The bargaining agent agreed that it is management that determines when it needs people. The bargaining agent was of the view that management did not understand the proposal for a new clause 23.14 (Work Assignment – Field Interviewers), as there was a reference in the management presentation to a concern that employees would use seniority to pick the peak times. The bargaining agent was not seeking that commitment. It was up to management to determine how many people were needed, when the interviews were to be made and the number of hours required. Management said that cross-training costs would be significant. The bargaining agent stated that the assignment of work was to be left to management. Mr. Gay testified that the employer representatives indicated that they had discussed the bargaining agent’s comments and stated that seniority and scheduling were key. The employer representatives asked the bargaining agent to provide copies of arbitral awards where seniority had been recognized in scheduling hours of work.

30 Mr. Gay indicated that he advised management conceptually as to how the bargaining agent’s proposal would work. He stressed that the assignment of duties was immaterial to the bargaining agent and it was the hours that were important. Management replied that all of the factors were important as the schedule was based on the survey, the number of hours was provided for in the budget, along with the number of interviewers needed, the collection period, the number of hours available as well as language requirements. The bargaining agent responded by agreeing that scheduling was based on the survey, the targeted hours, the collection period, bilingual needs and the number of interviewers needed. The bargaining agent indicated that this was a framework the parties could work from.

31 Who gets assigned to a survey and the number of hours to be worked on a survey is where seniority could apply. The bargaining agent stated that it was trying to accommodate management needs and that management could take into account all the factors, including the methodology. The bargaining agent wanted to come up with something whereby management could run its business but give the employees some rights. Management indicated that it was prepared to continue the dialogue. The employer raised concerns that the hours tend to be survey specific.

32 Ultimately, the parties reached an impasse on the proposed language for new clauses 23.14 (Work Assignment – Field Interviewers) and 23.15 (Assignment of Field Survey Work – Senior Interviewers).

B. Summary of the arguments

1. For the employer

33 The employer stresses that although the bargaining agent sought to provide context for the hearing, the scope of the evidence went beyond what was expected. The first principles are, of course, relevance; although the evidence was interesting, it ultimately did not provide an evidentiary basis for the determination of the issues in dispute. The bargaining agent’s agenda was the use of seniority for employees in the bargaining unit, and it did so by crafting various iterations of proposals. Clearly, this is the evidence of one side of the discussions. The other side has its own interpretation of the discussions.

34 What we have here is a question of interpretation, and it is fairly straightforward. Is there jurisdiction for an arbitration board to incorporate into a collective agreement proposals dealing with the use of seniority? It is necessary to look at the amended proposals for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers), the wording of the Public Service Labour Relations Act and the case law. The bargaining agent’s evidence did not contribute to answering the fundamental question.

35 Subsection 150(1) of the Public Service Labour Relations Act reads 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;

…

(e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.

The employer referred to the decision of the Chairperson of the Public Service Labour Relations Board in Association of Justice Counsel v. Treasury Board, 2009 PSLRB 20, for the proposition that section 150 is to be interpreted broadly and that an arbitral award may not deal with a term or condition of employment even if it incidentally affects or encroaches on one of the prohibited grounds recited in the section.

36 On March 19, 2013, the bargaining agent provided an amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers) to be included in the terms of reference for the arbitration board. The employer argued that the amended proposal has three interrelated elements: there is a prescription as to how the employer must assign duties to employees that creates a limitation on the employer’s ability to hire; the amended proposal directs which employees receive training and in which order; and the amended proposal provides that hours of work are to be assigned in order of seniority. This is a restriction on the ability of the employer to assign duties. The amended proposal provides for a preference order that establishes how the employees will be offered work. The amended proposal establishes two different groups of employees, indeterminate and term. The amended proposal requires the employer to offer survey hours to indeterminate employees who reside in a survey cluster, and if there are none, then to indeterminate employees within 20 km of the survey cluster. The hours would then be offered to term employees within the survey cluster and then finally to term employees within 20 km of the survey structure. The amended proposal may make sense. However, this matter is not about whether the proposal is meritorious.

37 The structure of the amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers) demonstrates the impingement on the employer’s right to assign duties. The amended proposal provides that in the event there are no available employees within the cluster or within 20 km of the cluster, the employer can either hire a new employee or offer the hours to an employee who is nearest to the cluster. The limit is 16 km before the Travel Directive takes effect. Employees who travel over 16 km for work are compensated. It is the employer’s position that it cannot assign work on the basis of geography. Before an employer can hire a new employee, the employer must exhaust the steps outlined in the amended proposal. This infringes the right of the employer to organize the workforce, contrary to paragraph 150(1)(e) of the Public Service Labour Relations Act. It also infringes on the processes governing the appointment of employees, contrary to paragraph 150(1)(c).

38 The bargaining agent also proposed that clause 23.16 of the current collective agreement be deleted. That clause reads as follows:

23.16 Where operational requirements permit, the Employer will endeavor to offer additional field survey work, available within a reasonable geographic area as determined by the Employer, to readily available qualified employees in that area, prior to hiring additional staff. This clause shall not be interpreted or applied to preclude the Employer from hiring additional staff, at any time, to meet operational requirements nor to preclude the Employer from hiring additional staff prior to providing employees with full-time hours.

This clause gives the employer flexibility to hire prior to providing full-time hours. Comparing the bargaining agent’s amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers) with the current clause 23.16 makes it clear that the new proposal infringes on the right of the employer to assign work and to organize its workforce.

39 The amended proposal for a new clause 23.14(e) compels the employer to offer training on the basis of the priority list based on geography and a distinction between indeterminate and term employees prior to hiring a new employee, which is contrary to paragraph 150(1)(e) of the Public Service Labour Relations Act as it affects the organization, the assignment of duties and the employment of persons.

40 The bargaining agent also proposed that clause 23.14 of the current collective agreement be deleted. That clause reads as follows:

23.14 Consultation

1. Where hours of work, other than those provided in clause 23.08 are in existence when this Agreement is signed, the Employer, on request, will consult with the Alliance on such hours of work and, in such consultation, will establish that such hours are required to meet the needs of the public and/or the efficient operation of the service.
2. Where hours of work are to be changed so that they are different from those specified in clause 23.08, the Employer will consult in advance with the Alliance on such hours of work and, in such consultation, will establish that such hours are required to meet the needs of the public and/or the efficient operation of the service.
3. Within five (5) days of notification of consultation served by either party, the parties shall notify one another in writing of the representative authorized to act on their behalf for consultation purposes. Consultation will be held at the local level for fact finding and implementation purposes.

This clause provides for consultation by the employer with the bargaining agent with respect to the establishment of and changes to hours of work. The  amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers) makes it mandatory that hours of work be assigned on the basis of seniority in the preference order set out in the proposal. The substance of the amended proposal is the assignment of work. An arbitration board cannot tell the employer how to assign the work.

41 The bargaining agent also provided an amended proposal for a new clause 23.15 (Hours of Work Assignment – Senior Interviewers) to be included in the terms of reference for the arbitration board. The concern of the employer with respect to the amended proposal, as attested to by Mr. Oddo, is that for the purpose of a survey cluster, geographies are not static and are determined by methodologists. The employer is less concerned about the infringement of section 150 of the Public Service Labour Relations Act than the infringement of the powers of the Minister under the Statistics Act to supervise generally the administration of the Statistics Act and control its operations and to employ enumerators as are necessary to collect statistics and information in the public interest. Nevertheless, the amended proposal still impacts paragraph 150(1)(e) of the Public Service Labour Relations Act. The obligation to assign work based on a fixed geography would affect the organization of work and the assignment of duties. The amended proposal mandates the manner in which duties are to be assigned, and to whom. An arbitration board cannot tell the employer to assign duties in a particular way.

42 The amended proposal for a new clause 23.15(c), dealing with supplementary surveys, requires the employer to assign such surveys to senior interviewers in the province. The amended proposal establishes a framework and tells the employer who is to perform the work and infringes on both the Statistics Act and paragraph 150(1)(e) of the Public Service Labour Relations Act.

43 The fundamental point made at Association of Justice Counsel, para 28, referring to subsection 150(1) of the Public Service Labour Relations Act that provides that an arbitral award cannot directly or indirectly alter, eliminate or establish a term or condition of employment under certain circumstances, is that “… [i]f something ‘directly or indirectly … relates to’ something, it is clear that even if it is only incidentally related to the subject matter, it is covered by the statutory provision …”, and that “ … the use of ‘indirectly … affect’ shows the intention of Parliament that the provision be interpreted broadly.” It does not matter what the purpose of the amended proposals for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) may be, but if their effect is to encroach on a particular subject matter beyond the scope of bargaining, they cannot be referred to the arbitration board.

44 Professional Institute of the Public Service of Canada v. Canadian Nuclear Safety Commission, 2005 PSLRB 174, demonstrates the breadth of paragraph 150(1)(c) of the Public Service Labour Relations Act. In that case, the Professional Institute of the Public Service of Canada proposed, among others, to refer to arbitration definitions for “lay-off” and “substantive position.” The Chairperson of the Public Service Labour Relations Board determined at para 39 that, “[w]hile only a definition, the subject of the definition — “lay-off” — is clearly a matter which was not arbitrable …” and that “… [i]n trying to define the term, one is trying to set the ‘standard’ of what constitutes a lay-off, contrary to paragraph 150(1)(e) of the [Public Service Labour Relations Act].” At para 40, the Chairperson of the Public Service Labour Relations Board found that “[s]imilarly, the term ‘substantive position’ is integrally related to the ‘standards, procedures or processes governing appointment’, which is expressly prohibited by paragraph 150(1)(c) …”

45 In Professional Institute of the Public Service of Canada, the Professional Institute of the Public Service of Canada also proposed a clause be referred to arbitration dealing with leaves in excess of six months that gave the Canadian Nuclear Safety Commission the option to appoint or deploy another person on an indeterminate basis to the vacated position and upon the employee’s return to use its best efforts to provide comparable employment. The Chairperson of the Public Service Labour Relations Board ruled at para 44 that “… in essence, this proposal deals with staffing processes, which is prohibited by paragraph 150(1)(c) of the [Public Service Labour Relations Act]…”

46 At Professional Institute of the Public Service of Canada, para 45, the Chairperson of the Public Service Labour Relations Board also ruled that “[a]ny question as to who will carry out duties is an issue which is precluded from arbitration, by virtue of section 7 and paragraph 150(1)(e) of the [Public Service Labour Relations Act]…”

47 In Federal Government Dockyard Trades and Labour Council East v. Treasury Board, 2005 PSLRB 42, the Federal Government Dockyard Trades and Labour Council East proposed a clause be referred to arbitration that established limitations on the Treasury Board’s ability to contract out work normally performed by employees. The Chairperson of the Public Service Labour Relations Board ruled at para 19-20 that the Treasury Board’s right “… to determine the organization of the Public Service and to assign duties to positions therein is protected by legislation …” and that “… a proposal preventing contracting out ‘… clearly interferes with the employer’s right to determine its organization…’ and could not be considered within the scope of a request for arbitration.” Similarly, the Chairperson of the Public Service Labour Relations Board ruled at para 25 that a proposed obligation to hire additional employees where there is sufficient work available to create a full-time position interferes with “… the employer’s right to determine the organization of the Public Service and to assign duties to positions therein is protected by section 7 of the [Public Service Staff Relations Act]…” The employer argued that the amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers), although not dealing with contracting out, by imposing constraints on the employer’s ability to hire has the same effect.

48 In the case of the P.S.A.C. v. Canada (Treasury Board), [1987] 2 F.C. 471, the Federal Court of Appeal had to deal with a proposal which “… would have limited the number of hours a teacher could be required to teach in a classroom per day…” The Court reasoned as follows at page 478:

…Determining the maximum number of hours per day that the employees in certain positions may be required to perform a particular duty, to me, not only impedes the freedom of the employer, but is an integral part of the assignment of duties to positions. Only the time element is involved but it is vital. It is indeed easy to realize that if a determination of that type were introduced with respect to one of the duties attached to a position, nothing would prevent it being extended to each and every duty attached to it: the Government employer would obviously be left with a seriously impaired freedom of action in the assignment of duties to that position, which is precisely what Parliament was determined to prevent.

…

The proposals under consideration have a similar effect.

2. For the bargaining agent

49 The parties had extensive discussions on the issues. Mr. Gay testified that he visited many workplaces, all of which had the same issues with respect to hours of work.

50 Four different bargaining units at the House of Commons and Senate pursued through arbitration proposals dealing with hours of work for employees who did not have any guarantees on the number of hours. Workers at the House of Commons and the Senate have similar working conditions as the employees in the bargaining unit at hand; no one has guaranteed hours of work, and all are, for the most part, part-time employees.

51 One should look at how the proposal for new clauses 23.14 and 23.15 evolved. After the employer explained the detailed factors involved in scheduling, the bargaining agent decided to amend its proposals in response to the employer’s concerns.

52 The bargaining agent referred to Mr. Gay’s testimony to the effect that the duties that are assigned to employees are immaterial to the bargaining agent; it is the hours of work that are important. Seniority and scheduling are also key for the bargaining agent. It is clear from the amended proposal for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) that the employer decides when and where a survey is to be done. All the bargaining agent requests is that the work be assigned by seniority of the available employees. This is consistent with the factors involved in scheduling identified by management in bargaining and as well with the framework that Mr. Oddo referred to in his testimony.

53 The employer objected to the relevance of Mr. Gay’s testimony. It is as relevant as Mr. Oddo’s testimony as it provides a clear understanding of the issues at play.

54 It is clear from reading the jurisprudence that a party who makes an objection to jurisdiction bears the burden of demonstrating that a proposal as written would require an amendment to the legislation, contrary to paragraph 150(1)(a) of the Public Service Labour Relations Act, or that the proposal would affect the organization of the public service or the assignment of duties to persons in the public service, contrary to paragraph 150(1)(e). The bargaining agent also referred to Association of Justice Counsel for the proposition that it is the employer that must demonstrate that a need would arise that would require legislation to be enacted or amended under paragraph 150(1)(a) of the Public Service Labour Relations Act. The employer has not met that burden. Much of the employer’s argument is based on assumptions and presumptions. The decision of the Chairperson of the Public Service Labour Relations Board cannot be made on presumptions and assumptions but on the evidence as well as the legislation and case law.

55 All of the amended proposal for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) do not deal with the assignment of duties. Where there are excessive employees available, the bargaining agent’s proposal is that the hours of work should be assigned in order of seniority. The bargaining agent also recognizes that training is a management prerogative, as are language requirements.

56 The bargaining agent referred to its bargaining proposals dated February 2012 and, in particular, to article 23, which states that the bargaining agent reserves the right to make proposals concerning article 23, article 24 and article 25 pending discussion with the employer about current employer practices and policies. The bargaining agent referred to the presentation made by management on scheduling surveys for the employees in the bargaining unit. Clause 23.02 of the current collective agreement, which reads as follows, provides that the assignment of work is the responsibility of the employer;

23.02 The work is of a “Part time” nature and the assignment of the work is the responsibility of the Employer.

The amended proposal for new clause 23.14 (Hours of Work Assignment – Field Interviewers) does not contain any reference to the assignment of duties. It does not require the amendment to any legislation. The bargaining agent’s proposals for article 23 in its entirety clearly do not deal with the assignment of duties. That prerogative belongs to the employer.

57 The amended proposal for new clause 23.14 (Hours of Work Assignment – Field Interviewers) requires that hours of work be offered in order of seniority. The employer states that the preference order is problematic. It is clear that the language of the amended proposal addresses the factors of utmost concern to the employer as outlined in Mr. Oddo’s testimony. Hours of work and seniority fall within an arbitration board’s jurisdiction when making an arbitral award under the Public Service Labour Relations Act. The employer is refusing to recognize the terms and conditions of employment that are standard in other unionized workplaces. Where all employees are part-timers, there is extremely high turnover. When employees do not have a guarantee of working hours, there needs to be some sort of a solution. The collective bargaining scheme should be utilized as a means to address these types of issues. In the bargaining agent’s view, the proposals are a fair way of addressing the employer’s concerns and to provide the employees with an equitable system to access hours through the use of a limited-based seniority system for shift selection that does not infringe on management rights. Seniority protection provides fairness and increased stability for employees with the strong likelihood that those employees will become more productive.

58 The bargaining agent is merely seeking parity with other federal employees. The bargaining agent realizes that it is different legislation, but the case law developed by panels of the Public Service Labour Relations Board under the Parliamentary Employment and Staff Relations Act indicates that the scheduling of shift assignments on the basis of seniority can be done without infringing managerial authority. Employees who are part-time and seasonal employees at the House of Commons do not have guaranteed hours, yet they are entitled to seniority protection. The provisions of sections 5, 43 and 55 of the Parliamentary Employment and Staff Relations Act are almost identical in nature to the analogous provisions in the Public Service Labour Relations Act. Sections 5, 43 and 55 of the Parliamentary Employment and Staff Relations Act read as follows:

5. (1) The purpose of this Part is to provide to certain persons employed in Parliamentary service collective bargaining and other rights in respect of their employment.

(2) Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.

(3) Nothing in this Part shall be construed to affect the right or authority of an employer to determine the organization of the employer and to assign duties and classify positions of employment.

…

43. (1) The provisions of a collective agreement shall, subject to the appropriation by or under the authority of Parliament of any moneys that may be required, be implemented by the parties

(a) where a period within which the collective agreement is to be implemented is specified in the collective agreement, within that period; and

(b) where no period for implementation is specified in the collective agreement, within a period of ninety days from the date of its execution or, on application by either party to the agreement, within such longer period as may appear reasonable to the Board.

(2) No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment

(a) the alteration or elimination of which or the establishment of which, as the case may be, would require or have the effect of requiring the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating moneys required for its implementation; or

(b) that has been or after the coming into force of this Part is, as the case may be, established pursuant to the Government Employees Compensation Act or the Public Service Superannuation Act.

…

55. (1) Subsection 43(2) applies, with such modifications as the circumstances require, in relation to an arbitral award.

(2) No arbitral award shall deal with the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, transfer, lay-off or release of employees, or with any term or condition of employment of employees that was not a subject of negotiation between the parties during the period before arbitration was requested in respect thereof.

(3) An arbitral award shall deal only with terms and conditions of employment of employees in the bargaining unit in respect of which the request for arbitration was made.

For their part, the analogous provisions in the Public Service Labour Relations Act read as follows:

…

5. Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.

…

6. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board under paragraph 7(1)(b) of the Financial Administration Act.

7. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board or a separate agency to determine the organization of those portions of the federal public administration for which it represents Her Majesty in right of Canada as employer or to assign duties to and to classify positions and persons employed in those portions of the federal public administration.

…

113. A collective agreement 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

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.

…

117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

(a) within the period specified in the collective agreement for that purpose; or

(b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

…

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

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

(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;

(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct; or

(e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.

(2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.

…

The case law under the Parliamentary Employment and Staff Relations Act is perfectly acceptable to rely upon in making determinations under the Public Service Labour Relations Act. The assignment of hours of work on the basis of seniority does not infringe the employer’s authority.

59 In the case of Public Service Alliance of Canada v. House of Commons, PSSRB File No. 485-H-10 (19900828), a panel of the Public Service Labour Relations Board, in rendering its arbitral award under the Parliamentary Employment and Staff Relations Act, had to consider a number of jurisdictional objections to proposals of the Public Service Alliance of Canada. The Public Service Alliance of Canada proposed, inter alia, a clause whereby the seniority of an employee was to be the determining factor in shift selections. The House of Commons objected to the clause on jurisdictional grounds and, in addition, on its merits. The House of Commons submitted that “… the proposed clause … is contrary to subsection 5(3) of the [Parliamentary Employment and Staff Relations Act] …” on the basis that “… seniority would determine the assignment of duties… ” The Public Service Alliance of Canada argued that “… the proposed clause … speaks of the assignment of hours of work and that the selection of hours of work is based on seniority.” The panel of the Public Service Labour Relations Board concluded as follows at para 26:

… the proposed clause … does not infringe upon the Employer’s rights and authority provided in subsection 5(3) of the [Parliamentary Employment and Staff Relations Act]. Furthermore, it does not violate subsection 55(2) of the [Parliamentary Employment and Staff Relations Act] because this proposal deals with shift selection which relates to hours of work. It attempts to provide that seniority will determine the employees’ hours of work. However, the decision of the Board is not to award the Alliance’s proposed article 32.

60 In Public Service Alliance of Canada v. House of Commons, 2010 PSLRB 28, a panel of the Public Service Labour Relations Board considered on its merits the introduction of seniority-based shift selection into the collective agreement. The House of Commons proposed “… to maintain the status quo.” The bargaining agent referred expressly to the comments of the panel at para 45 to 47, which read as follows:

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

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

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

[Emphasis in the original]

61 In Public Service Alliance of Canada v. House of Commons, 2010 PSLRB 14,  a panel of the Public Service Labour Relations Board considered a proposal by the Public Service Alliance of Canada to assign on the basis of seniority to part-time and seasonal certified indeterminate employees straight-time hours of work beyond those scheduled for full-time indeterminate employees. The panel amended the hours-of-work provision of the collective agreement “… to strengthen the protection offered to [seasonal certified indeterminate] employees …”, including using seniority when assigning work. The bargaining agent asserted that the preference order awarded by the panel was similar to those at issue in its amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers).

62 In the bargaining agent’s view, the matters of hours of work, seniority and scheduling are appropriate for arbitration. The amended proposal for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) do not infringe on staffing or the assignment of duties. The prerogatives of the employer remain intact. In the alternative, in the event that some language would cause an encroachment, the clause should be amended as appropriate.

3. Employer’s rebuttal

63 There is some similarity in the language in the Public Service Labour Relations Act and the Parliamentary Employment and Staff Relations Act with respect to the scope of bargaining and what may be included in an arbitral award. In particular, subsection 5(3) of the Parliamentary Employment and Staff Relations Act and section 7 of the Public Service Labour Relations Act deal with the preservation of the rights of an employer.

64 Subsection 55(2) of the Parliamentary Employment and Staff Relations Act stipulates the matters that may not be dealt with in an arbitral award. Similarly, subsection 150(1) of the Public Service Labour Relations Act stipulates matters that may not be dealt with in an arbitral award.

65 There is no equivalent provision under the Parliamentary Employment and Staff Relations Act to the provision in paragraph 150(1)(e) of the Public Service Labour Relations Act that prohibits an arbitral award from directly or indirectly altering, eliminating or establishing conditions of employment “… if doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.”

66 Subsection 55(2) of the Parliamentary Employment and Staff Relations Act provides that “[n]o arbitral award shall deal with the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, transfer, lay-off or release of employees, or with any term or condition of employment of employees that was not a subject of negotiation between the parties during the period before arbitration was requested …” This provision is similar to paragraph 150(1)(c) and subsection 150(2) of the Public Service Labour Relations Act. Paragraph 150(1)(c) provides that an “… arbitral award may not, directly or indirectly, alter or eliminate any existing term or condition of employment … 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 …” Subsection 150(2) provides that an “… arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.”

III. Reasons

67 I agree with the analysis of the Chairperson of the Public Service Labour Relations Board in Association of Justice Counsel, which found that section 150 of the Public Service Labour Relations Act is to be interpreted broadly. An arbitration board may not deal with a term or condition of employment even if it incidentally affects or encroaches upon one of the prohibited grounds recited in section 150. I find that the bargaining agent’s amended proposed language for new clauses 23.14 (Hours of Work Assignment – Field Interviewers) and 23.15 (Hours of Work Assignment – Senior Interviewers) contravenes section 150 and, in particular, paragraphs (1)(c) and (e). These paragraphs prohibit an arbitration board from directly or indirectly altering, eliminating or establishing a term or condition of employment “… if the term or condition relates to … processes governing the appointment … of employees …” or “… if doing so would affect the organization of the public service or the assignment of duties to … persons employed in the public service.”

68 The bargaining agent’s amended proposal for a new clause 23.14 (Hours of Work Assignment – Field Interviewers) provides that hours of work relating to survey clusters are to be assigned by seniority, with preference to be initially given to indeterminate employees who reside within the survey cluster, and then to those who reside within 20 km of the survey cluster. If no sufficient indeterminate employees are available, the employer may assign the work to term employees who reside within the survey cluster and then to those who reside within 20 km of the survey cluster. If there are still no sufficient available employees, the employer may hire new employee or offer the hours to the employee who resides nearest to the survey cluster. I find that the amended proposal restricts the ability of the employer to assign duties, contrary to paragraph 150(1)(e) of the Public Service Labour Relations Act, as it mandates the manner in which the employer must assign hours of work. Further, I find that the amended proposal restricts the employer from hiring new employees until the employer has exhausted the steps in the amended proposal, contrary to paragraph 150(1)(c) of the Public Service Labour Relations Act.

69 The bargaining agent’s amended proposal for new clauses 23.15 (Hours of Work Assignment – Senior Interviewers) would require the employer to offer hours of work related to continuous surveys to senior interviewers based on geographies. I find that the amended proposal would infringe on the authority of the Minister under section 5 of the Statistics Act to “… employ … enumerators … as are necessary to collect … such statistics and information as the Minister deems useful and in the public interest…” It also contravenes paragraph 150(1)(e) of the Public Service Labour Relations Act as the obligation to assign work based on a fixture on geography would affect the organization of work and the assignment of duties.

70 Although decisions of panels of the Public Service Labour Relations Board under the Parliamentary Employment and Staff Relations Act are of interest, the fact that there is no statutory equivalent in the Parliamentary Employment and Staff Relations Act to paragraph 150(1)(e) of the Public Service Labour Relations Act, which further restricts the matters that may be referred to arbitration, in my view distinguishes those cases from the situation at hand. While I understand the importance of the issue raised in the proposals to the bargaining agent and the employees in the bargaining unit as well as the rationale underlying the proposals, Parliament has expressly limited the permissible scope of matters that may be referred to an arbitration board under the Public Service Labour Relations Act.

71 For all of the above reasons, I make the following order:

IV. Order

72 Pursuant to section 144 of the Public Service Labour Relations Act, the matters in dispute on which the arbitration board shall make an arbitral award are those set out in schedules 1 to 8 inclusive, which are attached to this decision, with the following clarifications:

• the bargaining agent’s proposal for a new clause 23.14 will not be included in the Terms of Reference; and
• the bargaining agent’s proposal for a new clause 23.15 will not be included in the Terms of Reference.

73 Should any jurisdictional question arise during the course of the hearing as to the inclusion of a matter in these Terms of Reference, that question must be submitted without delay to the Chairperson of the Public Service Labour Relations Board, who is, according to subsection 144(1) of the Public Service Labour Relations Act, the only person authorized to make such a determination.

August 27, 2013.

David P. Olsen,
Acting Chairperson of the
Public Service Labour Relations Board