FPSLREB Decisions

I. Request before the Board

1 The applicant, the Treasury Board, and the respondent, the Federal Government Dockyard Trades and Labour Council East (FGDTLCE), are parties to an arbitral award dated September 18, 2013 (PSLRB File No. 585-02-46; “the award”).

2 On December 18, 2013, the applicant wrote to the Public Service Labour Relations Board (“the Board”) and requested an extension of time under section 157 of the Public Service Labour Relations Act (“the Act”) to implement the award. The respondent opposed the application.

3 The applicant called two witnesses, John Park and Muriel Henderson, while the respondent called one, Lorne Brown, the president of the FGDTLCE.

II. Summary of the evidence

4 Paragraph 20 of the award states as follows:

20. The pattern of additional increases of an extra 0.25% in year one, and an additional 0.50% in year three, to compensate for the termination of further accumulation of severance payment for voluntary resignation and retirement, is similarly grounded in prior agreements and is so awarded, and indeed was recognized by the parties at hearing, resulting in agreed changes to the severance language as set out in Appendix 1 attached to this award.

5 Severance is dealt with in Appendix 1, in clauses 14.10 through 14.13. The specific portion of article 14 of Appendix 1 that is relevant for the purposes of this matter is found under the heading “Terms of Payment” and then under clause 14.12, which is entitled “Selection of Option” and states as follows:

14.12 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 signing of the arbitral award.

6 Three months following the issuance of the award was December 18, 2013.

7 Paragraph 51 of the award states as follows:

51. Implementation, as agreed between the parties, is effective 100 days following issuance of this award.

8 One hundred days following the issuance of the award was December 27, 2013.

9 On December 18, 2013, the applicant wrote to the Board and requested an extension of time until February 28, 2014, for the implementation of the award. The applicant stated as follows:

According to the arbitral award, the parties have 100 days to implement following the issuance of the award, which takes us to December 27, 2013. While the department has worked diligently to fulfil this condition, some calculations with respect to the payment in lieu of severance for a number of employees are taking longer because they have to be done manually.

The Employer experienced a few challenges implementing other collective agreements, so with reason, the Employer expected some challenges with the Ship Repair East collective agreement also. That is why we have been upfront with this bargaining agent and have been requesting a longer implementation period than the 90 days provided for in the legislation. Even after the Arbitration Board confirmed an implementation period of 100 days, the Employer requested an extension of time from the bargaining agent, which was not granted.

In Federal Government Dockyard Chargehands Association and Treasury Board (Department of National Defence), 2013 PSLRB 139, Board Member Kate Rogers indicated that “[t]here was also no evidence or suggestion that the employer made any attempt to extend the time limit to implement the arbitral award.” [paragraph 28] This statement suggests that had the employer requested an extension to implement the arbitral award, the determination made by Board member Rogers would have been different.

…

10 Mr. Park has been employed in the federal public service since 2000, has been with the Treasury Board for six-and-a-half years and has been a negotiator with the Treasury Board for four years. Mr. Park testified that while he was not the negotiator with respect to collective bargaining with the respondent, he became involved with the matter in April 2013 and took the lead in preparation for the arbitration hearing, which took place on May 16, 2013.

11 Mr. Park testified about implementation dates and the difference between those incorporated into a negotiated collective agreement and those incorporated when an arbitral award is made.

12 Mr. Park stated that generally when a new collective agreement has been negotiated, the time frame incorporated for implementation is usually set at 90 days from the date of the signing of the collective agreement. He stated that there is a lag between the time a tentative agreement is reached and the date on which the collective agreement is actually signed by the parties, which gives the applicant a sufficient amount of time to iron out details and get various systems adjusted before the start of the implementation period. Mr. Park testified that with respect to implementation periods as set out in an arbitral award, there are two potential outcomes: either the arbitral award will order an implementation period to run from the date of the signing of the collective agreement or the arbitral award will order an implementation period to run from the date of the arbitral award.

13 Section 157 of the Act states that the parties to an arbitral award must implement the provisions of the award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to. Mr. Park stated that there is a significant difference in time when dealing with an arbitral award, as opposed to a negotiated collective agreement, as the time for implementation begins running immediately upon the arbitral award being issued. He stated that as the employer, the applicant will try to secure agreement with the bargaining agent to obtain more time above and beyond the 90 days and to have the arbitration award provide for the implementation period to run from the signing of the collective agreement, rather than from the date of the award.

14 Mr. Park testified that it was his understanding that the agreement reached with the respondent was that the 100 days to implement the award, was to start running from the date of the signing of the collective agreement. He stated that of the 27 collective agreements entered into in the core public service, 26 of them have the implementation date tied to the signing of the collective agreement. He also stated that in August 2013, he exchanged emails with the applicant’s arbitration board nominee, Jock Climie, specifically with respect to this issue. As support for his belief that the agreement was 100 days from the date of the execution of the collective agreement, he produced an email chain with Mr. Climie to this effect. Attached to the first email in the chain, sent by Mr. Climie to Mr. Park on August 9, 2013, was a draft of Appendix 1, which included clause 14.12, which set out the time frame with respect to the issue of the “Severance Termination” payment, which was worded as follows:

14.12 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 signing of the collective agreement.

15 As Mr. Park was on holidays when Mr. Climie emailed him with the wording, he responded to Mr. Climie, advising that he would have someone else look at it, and copied that email to that individual.

16 Mr. Park testified that after the issuance of the award, he had many discussions and meetings with Mr. Brown about the implementation process and the status. He stated that the earliest meeting he recalls discussing the amount of work the applicant had to do was on October 4, 2013. He stated that on November 13, 2013, he advised Mr. Brown that, in all likelihood, the applicant would not meet the implementation deadline as set out in the award. He stated that he had another discussion with Mr. Brown on December 4, 2013, where he confirmed this and where he enquired of Mr. Brown as to whether the applicant would be required to formally request an extension of time. He stated that Mr. Brown told him he would consider it and would let him know. Mr. Park stated that on December 13, he again spoke with Mr. Brown and advised him that it was clear that the applicant would not meet the implementation deadlines as set out in the award and asked Mr. Brown for an extension of time.

17 Mr. Brown did not agree to grant an extension of time, as requested by Mr. Park.

18 In cross-examination, Mr. Park admitted that the applicant did not go back to the arbitration board when it saw that the implementation period was set at 100 days from the date of the award; nor did the applicant seek judicial review of the award.

19 Ms. Henderson is the manager of Compensation Services with the Department of National Defence (DND) in its Atlantic Region Service Centre. She has been in this position since 1996 and has been with the public service in human resources since 1978. Ms. Henderson testified that her duties and responsibilities include overseeing the payment of salaries and benefits to all DND civilian personnel in the Atlantic Region. She has a staff of between 30 and 35; of them, 25 to 27 are compensation advisors.

20 Ms. Henderson’s unit is responsible for the implementation of changes that come with new collective agreements. Ms. Henderson described for me the work that her unit carries out when it is advised of an arbitral award or new collective agreement. She indicated that it was her understanding that the timeline for the implementation of the changes as set out in the award was three months from the date of the signing of the collective agreement. She stated that she was provided this information in an email; however, a copy of that email was not produced at the hearing. However, Ms. Henderson did identify an email exchange in which she had referred to this understanding, which email chain is found at Exhibit A-1, Tab 7. The first email in the chain was from Ms. Henderson to Mr. Brown and was dated November 19, 2013. In that email, Ms. Henderson advised Mr. Brown that the wording of clause 14.12, Selection of Option, stated that the time frame to implement was three months following the official date of the signing of the collective agreement.

21 The second email in the chain at Exhibit A-1, Tab 7, is Mr. Brown’s reply email to Ms. Henderson (also dated November 19, 2013), advising her that the wording in the award was three months from the date of the signing of the award. In addition, Mr. Brown provided the link to the Board website, where the award could be found.

22 Ms. Henderson testified that once she became aware of the error, she had to alter the work that was being carried out by her unit. Workloads had to be reassigned, and work was farmed out to the Ontario Regional Service Centre. She also testified that with respect to much of the work that had to be done for the implementation, her unit had to wait for Public Works and Government Services Canada (PWGSC) to update the Pay Rates Control File and the Pay Rates Implementation Bulletin.

23 Ms. Henderson also described what is meant by a “shut down.” A shut down occurs when the unit closes its doors to its clients so that it can get work done. She stated that during this time frame (post-November 19, 2013), shut downs occurred every other day. Her employees did not respond to client calls or inquiries, and the calls were rerouted to a central number, such that they could work uninterrupted on the tasks of the implementation.

24 Ms. Henderson also spoke to the calculation of the “Self Directed Team Allowance” (SDTA) and stated that this was a particularly time-consuming process, given the way it was to be calculated. The members of the respondent are the only bargaining unit members who get this allowance.

25 Ms. Henderson also described the various other matters that were keeping her unit busy during the time frame of November and December 2013, which were adding to the workload of her unit. One was that the Government of Canada Workplace Charitable Campaign (United Way) contributions had to be input into the pay system such that deductions could start in January of the new year. Ms. Henderson also pointed out that the Christmas holiday season fell during the implementation period.

26 Ms. Henderson admitted in cross-examination that none of the various pay or benefits that she described in her testimony was anything new to her or her unit. The SDTA, as well as various other allowances, have been in place for years, and her unit has been working with them. She also admitted that the various other tasks that her unit was required to carry out, such as the calculations for the United Way and the calculations for severance pay in lieu, were not new and that many were part and parcel of the unit’s regular workload.

27 Ms. Henderson stated that it was her belief that all the work required to comply with the implementation deadlines as set out in paragraphs 20 and 51 of the award should be done by January 31, 2014.

28 Mr. Brown testified that in addition to being the president of the FGDTLCE, he also was the chief negotiator for collective bargaining and was involved in the arbitration that led to the award.

29 Mr. Brown identified Exhibit A-1, Tab 1, as an excerpt from the applicant’s arbitration brief, which was submitted in furtherance of the applicant’s position in the arbitration, which was held on May 16, 2013. It is a chart setting out in three columns for each section of the collective agreement, respectively, the existing language, the applicant’s proposed language and the respondent’s proposed language. On the page numbered 57 of that excerpt is article 14.12, dealing with the severance pay matter. There is no existing language; nor is there any proposed language of the respondent. The only language set out is that of the applicant, which language is the same as was set out at paragraph 14 of this decision, which states that the three-month implementation period would run from the official date of the signing of the collective agreement.

30 With respect to delivering the information to employees about their years of service as tied to the issue of severance and clause 14.12, Mr. Brown testified that the FGDTLCE did not agree to three months from the time of the signing of the collective agreement.

31 Also found at Exhibit A-1, Tab 1, at the page numbered 74, is a further excerpt from the applicant’s arbitration brief, again a chart setting out in three columns for each section of the collective agreement, respectively, the existing language, the applicant’s proposed language and the respondent’s proposed language, with respect to article 34.02. The existing language provided for the expiry date of the collective agreement. In the employer proposal section, the applicant added “Article 34.03.” The respondent had no proposal. The applicant’s proposed language for it was as follows:

Article 34.03 The provisions of this collective agreement shall be implemented by the parties within a period of one hundred and fifty (150) days from the date of signing.

32  Mr. Brown was taken to this new draft “Article 34.03” at Exhibit A-1, Tab 1, and was asked if the respondent ever agreed to an implementation deadline of 150 days, to which he responded that historically the FGDTLCE had always had an implementation period of 90 days from the date of the execution of the collective agreement.

33 Mr. Brown also identified, at Exhibit A-1, Tab 5, an email exchange with Mr. Park dated October 7, 2013, in which he referred to the implementation period of the award and to the deadline of December 27, 2013. When Mr. Brown was asked about the discussions he was having with Mr. Park at that time, he stated that Mr. Park enquired of him what the consequences would be if the timelines as set out in the award were not met. Mr. Brown stated his reply was that the FGDTLCE would have to file a complaint.

34 Mr. Brown testified that he denied Mr. Park’s request for an extension of time, as he felt that the 100 days were enough if the calculations had been started earlier.

35 In cross-examination, Mr. Brown admitted that he is not a compensation manager or compensation analyst and that he is not familiar with doing the calculations that such people do carrying out their work. He stated that this is the reason he speaks with Ms. Henderson. He also stated that he understood that the work that was being done by Ms. Henderson’s unit was complex.

36 Mr. Brown also agreed that he had a number of discussions with Mr. Park over implementation and that quite soon after the award was made, Mr. Park had made it known to him that there were problems from the applicant’s perspective in implementing the award.

37 All three witnesses testified as to the good relationship between themselves, which was clearly evident to me in the hearing room.

III. Summary of the arguments

A. For the applicant

38 The applicant stated that the test for granting an extension is first set out in Treasury Board v. The Professional Institute of the Public Service of Canada, PSSRB File No. 151-02-4 (19691118; “Treasury Board v. PIPSC”), which test has been applied consistently, with only subtle nuances. The test as set out by the Public Service Staff Relations Board (PSSRB) at paragraph 5 states as follows:

… The “safety valve” provided by section 56(1)(b)(ii) was designed to deal with situations that could not reasonably have been foreseen at the time the agreement was entered into or situations that develop subsequently and which are beyond the control of the Employer….

39  The applicant referred me to Treasury Board v. Public Service Alliance of Canada, PSSRB File No. 151-02-7 (19760716; “PSAC 1”), where the PSSRB states at paragraph 8 as follows:

… In any event, we are disturbed by the fact that the Employer waited until one day prior to the expiration of of [sic] the ninety-day period for implementation of agreement, before applying to this Board for an extension of time. By delaying its application until this late date, the Employer automatically accorded to itself an extension of time for the implementation of the compensation provisions of the collective agreement.

40 The applicant referred me to Treasury Board v. Public Service Alliance of Canada, PSSRB File No. 148-02-367 (“PSAC 2”), where the PSSRB states at the second paragraph on page 5 as follows:

With respect to the table II agreement, I am satisfied that the reasons given by the employer to explain its failure to implement that collective agreement within ninety days following its execution and its conduct to assess and follow-up quickly when problems arose, justify the granting of an extension of time….

41 The applicant argued that it was evident in the evidence that it had been forthright with the respondent about the problems it was encountering with the implementation and that it had advised the respondent on several occasions well before the date of the application that it was likely that an extension would be needed. The applicant’s representative met with the respondent’s representative and discussed the problems with the implementation on October 4, November 13 and December 4, 2013. It was on December 13, 2013, pursuant to the suggestion by the respondent that the applicant formally requested an extension of time from the respondent. At all times, the applicant acted with good faith, and only when the respondent did not consent to the extension of time request did it bring its application.

42 The applicant also relied on Treasury Board v. Public Service Alliance of Canada, PSSRB File No. 151-02-12 (19890818; “PSAC 3”), for the proposition that the late application should not be a bar to granting the extension. In PSAC 3,the 90-day deadlines for the implementation of a number of collective agreements were set to expire between August 15 and 17, 1989. The applicant brought an application to extend the time for implementation only on August 11, 1989. The applicant stated that despite the short time frame between the expiry dates and the application date, the PSSRB looked at the merits of the application and granted an extension. According to the applicant, PSAC 3 nuances the earlier case law in this area. The Board must look at the complexities of the work that needs to be done and take them into account when assessing if an extension of time should be granted.

43 In the within case, it was the applicant’s submission that there is ample evidence of the complexity of the work that is being done and that remains to be done. The applicant stated that paragraph 20 of the award is incorrect; it never agreed to the implementation period being 90 days from the date of the award. The applicant agreed to 90 days from the date of the execution of the collective agreement. The difference between 90 days from the date of execution of the collective agreement and 90 days from the date of the award is large and has ramifications upon the applicant’s ability to get the work done. The shortened time frame, together with the delay in receiving the PWGSC control file and the pay raises bulletin, as well as the calculations involved in dealing with the SDTA and other allowances, together with the uniqueness of sick leave without pay, demonstrates the complexities of the matter.

B. For the respondent

44 The respondent submitted that the evidence presented does not satisfy the test as set out in the jurisprudence.

45 The respondent did not attack the hard work of Ms. Henderson or the Compensation Services staff. The respondent found it difficult to understand why the applicant could not meet the deadline. There was an agreement to 100 days. The applicant should have assessed its resources before agreeing to the timeline to see if it could meet that timeline. It is clear that if the applicant had checked with Ms. Henderson, it would have known there were challenges to meeting the timeline.

46 The respondent stated that none of the evidence put forward by the applicant allegedly demonstrated the challenges in implementation were unforeseeable; the Christmas holiday time frame, the calculation of the SDTA and other allowances, and the implementation of the United Way deductions were known to the applicant before the award was issued. Many of these events, duties and tasks were annual in nature, many were ongoing, and none would have been a surprise or unforeseeable.

47 The respondent argued that despite the ongoing discussions between Mr. Park, Ms. Henderson and Mr. Brown about the implementation, it was insufficient for the applicant to wait and watch events unfold. The applicant waited until nearly the eve of Christmas to bring its application. By the time it sought an extension, it knew it was in breach of the Act.

48 The Act sets out a mandatory time frame in which to implement the award. The arbitrator retained jurisdiction to deal with any implementation matters arising from the award. The language in the award is clear. What happened between the applicant and its nominee before the issuance of the award is not relevant, as the award was issued, and the applicant did not go back to the arbitration board to address the error in setting the timeline for implementation; nor did it seek judicial review of the award. The applicant did not raise the alleged error with the respondent. In addition, the award contains a dissent by the applicant’s arbitration board nominee, which dissent does not mention the alleged error with respect to the implementation time frames.

49 The applicant must be expected to exercise reasonable due diligence. Its employees must be given the correct information within the appropriate time frames to enable them to do their work. Ms. Henderson was given the wrong information with respect to the implementation deadline, which information was not corrected until two months after the date of the award, and it was corrected by the respondent. This is inexcusable.

50 The respondent referred to the actual application, dated December 18, 2013. Nowhere in this document does the applicant refer to the December 18, 2013, deadline as set out in with respect to the Severance Termination payment information. All the applicant states is that it experienced a few challenges implementing other collective agreements, so that it expected some with the award as well. Given this language, it is clear that the applicant had foreseen the work that needed to be done.

51 The respondent stated that the applicant in its application of December 18, referred to the recent Board decision Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2013 PSLRB 139 (“Chargehands”), and stated that the applicant was concerned about the risk of damages being awarded if a complaint were made by the respondent. It was the respondent’s position that the applicant was really not concerned about seeking an extension of time, as it had already given itself an extension by waiting until the very last moment to seek one; the real intent of the application was to avoid a damage award when a complaint was filed.

52 The respondent stated that in Treasury Board v. PIPSC, the employer was dealing with the very first collective agreements in the federal public service. This was a huge and daunting task, yet in granting the employer an extension, the PSSRB gave it only an additional 15 days and in doing so stated: “Henceforth, there will be a heavy onus on the Employer to establish that the delays in implementing an agreement were caused by circumstances that could not reasonably have been foreseen by the Employer or by matters beyond the control of the Employer.”

53 With respect to PSAC 1, the respondent referred to paragraph 8, where the PSSRB states as follows:

… we are disturbed by the fact that the Employer waited until one day prior to the expiration of the ninety-day period for implementation of agreement, before applying to this Board for an extension of time. By delaying its application until this late date, the Employer automatically accorded to itself an extension of time for the implementation of the compensation provisions of the collective agreement.

54 The respondent argued that in the instant case, that is exactly what the applicant has done.

55 The respondent further submitted that at paragraph 11 of PSAC 1, the PSSRB states as follows: “… the application should be made early enough to allow the Board sufficient time to fully appraise the respective positions of the parties.” Again, the respondent argued that in the instant case, the applicant has fallen far short of what the jurisprudence requires.

56 With respect to PSAC 3, the respondent stated that this case can be easily distinguished from the other cases cited, as it was a case that proceeded without a hearing and the parties were dealing with the implementation of 40 collective agreements for over 160 000 employees. PSAC 3 is clearly distinguishable on its facts from the instant case.

57 The respondent referred to paragraph 38 of Chargehands,where the Board states as follows: “Harmonious labour-management relations, which are one of the objects of the PSLRA, are not possible when one of the parties has no hesitation in ignoring provisions of the PSLRA designed to achieve labour relations peace.” The decision in Chargehands was issued on November 13, 2013, while the award was issued on September 18, 2013. In Chargehands, the same applicant was publically admonished by the Board, yet it still waited until December 18, 2013, to bring its application for an extension to the Board. This demonstrates a lack of respect for both the respondent and the Board.

58 It is not sufficient for the applicant to state that the award implementation is complicated. The time limit as set by the Act is mandatory and can be extended only either on consent of the respondent or by the Board if there were circumstances that were unforeseeable in the implementation or if there was some factor beyond the applicant’s control.

59 The respondent also relied on PSAC 2 and Treasury Board v. Public Service Alliance of Canada, 2000 PSSRB 103 (“PSAC 4”).

C. Applicant’s reply

60  With respect to Chargehands, it is clear that the applicant acted at all times in good faith and that it was forthright with the respondent throughout the time line, sharing its concerns about meeting the deadline.

IV. Reasons

61 At issue in this application is a request for an extension of time under section 157 of the Act to implement an arbitral award. Section 157 of the Act states as follows:

157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

62 The award in this matter was issued on September 18, 2013. Two distinct implementation deadlines were set out in the award. The first deadline was for the applicant to provide each employee with his or her years of continuous employment, which deadline was three months from the date of the award. This is set out at Appendix 1, clause 14.12. This three-month implementation period expired on December 18, 2013. The second implementation deadline is found at paragraph 51 of the award and quite simply states as follows: “Implementation, as agreed between the parties, is effective 100 days following issuance of this award.” This 100-day implementation period expired on December 27, 2013. Neither implementation deadline was met.

63 On December 18, 2013, the final day for the applicant to have met the first implementation deadline, the applicant applied to the Board to extend the time to implement the award. The application is set out at paragraph 9 of this decision and provides no specifics as to the reasons behind the applicant’s inability to meet the two deadlines.

64 The jurisprudence in this area is scant and dated. The problem with the existing jurisprudence is that it fails to address the types of situations that can arise when there are misunderstandings about implementation, which is what happened here. It also fails to address the difference in wording between the old and current Act, and the current realities of implementation.

65 The PSSRB, in Treasury Board v. PIPSC, in 1969, set out what has been suggested is the test to meet in applications to extend time under the predecessor legislation. The test is set out at paragraph 5 of that decision, where the PSSRB states as follows:

… The “safety valve” provided by section 56(1)(b)(ii) was designed to deal with situations that could not reasonably have been foreseen at the time the agreement was entered into or situations that develop subsequently and which are beyond the control of the Employer….

66 Section 56 of the PSSRA,is set out at paragraph 4 of Treasury Board v. PIPSC and is as follows:

56. (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 by the employer therefore, 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 so specified

(i) within a period of ninety days from the date of its execution, or

(ii) within such longer period as may, on application by either party to the agreement, appear reasonable to the Board.

67 Section 56 of the predecessor legislation, the Public Service Staff Relations Act (“the PSSRA”), was later modified and became section 57 of the PSSRA. The wording remained similar, though not identical, allowing for implementation of the collective agreement within ninety days after the date of its execution when, inter alia, no period for implementation was specified. It read as follows:

Time within which agreement to be implemented

57. (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 by the employer, 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 ninety days after the date of its execution or such longer period as the parties may agree to or as the Board, on application by either party, may set.

68 Section 56 of the PSSRA is the subject in issue in Treasury Board v. PIPSC and PSAC 1; and section 57 of the PSSRA is the subject of PSAC 2, PSAC 3 and PSAC 4.This provision calls for a 90-day deadline to implement the collective agreement from either the date of the execution of the collective agreement or within such time frame that the parties agree. The provision of the Act that is dealt with in this case, section 157, provides a new wrinkle, namely, implementation within 90 days of the date the award becomes binding on the parties. The current wording could therefore lead to a shorter period of time within which to implement a collective agreement and one that could realistically not be attainable. To restrict considerations of extension of time to a narrow understanding of the “safety valve” means that other considerations might not be properly weighed, even in situations where there has been good faith, transparency and due diligence in reaching a time line that has been imposed.

69 I find that it was not unforeseeable by the applicant that the deadline might be 90 days from the date of the award. This is clear from the evidence of Mr. Park, who stated that the applicant, in its initial bargaining position, requested an implementation time of 150 days. When asked why the applicant agreed to 100 days, Mr. Park stated that the applicant knew that failing an agreement on implementation time, the Act provides a time limit of 90 days, and as such, 100 days is better than 90. It is also clear from the email dated October 7, 2013 (Exhibit A-1, Tab 5), which Mr. Brown sent to Mr. Park that the 100-day general implementation deadline was December 27, 2013. Mr. Brown states this specifically as follows: “Finally as discussed on Friday morning October 4, 2013, it is my understanding that we will attempt to implement within the 100 days, that is by December 27, 2013.” However, I also find that until that point in time, Mr. Park may have inadvertently thought that the applicant had a longer implementation period within which to work.

70 The evidence clearly showed that an implementation period from the date of execution of the collective agreement can still be used and often was. As Mr. Park testified, in 26 of the 27 collective agreements, the time frame of implementation is set from the date of the execution of the various collective agreements. He also testified that there was usually a lag between the actual negotiation of an agreement and its execution. In reality, the minimum time to actually implement the provisions of the agreement is the 90 days plus whatever period occurs between the date of the successful negotiation and the agreements’ execution. Mr. Park stated that the collective agreement in this case has yet to be executed. It is in this context that the misunderstanding as to implementation could occur. I accept Mr. Park’s testimony that it was his initial understanding that the agreement reached with the respondent was that the 100 days to implement the award, was to start running from the date of the signing of the collective agreement.

71 I agree with the respondent’s submission that there is nothing that was unforeseeable in any of the facts put forward by the applicant. The SDTA and the severance pay issues were not novel or unforeseeable; nor was the onset of the Christmas holiday period, the United Way Workplace Charitable Campaign, or the issuance of the pay control file and pay bulletins by the PWGSC. These were all things that existed either generally on an annual basis that the applicant had to deal with or that were specific to this particular bargaining unit, all of which the applicant had dealt with in the past.

72 I also agree with the respondent’s submission that there was nothing overly complex in the work that was being carried out. None of the issues being addressed for implementation was new or novel.

73 However, I accept the evidence of the applicant that there was an honest error in the implementation period. The evidence of both Mr. Park and Ms. Henderson, as well as a number of e-mails in the exhibits, support this. Just as importantly, the evidence clearly shows diligence in striving to meet those time lines, once the error in understanding became clear. 

74 The evidence that the applicant put forward and that it suggested in its argument as being unforeseeable and complex is actually evidence of an excessive amount of work. It was clear from the evidence of Ms. Henderson, the heavy workload that her unit generally carried out, and that the work required to implement the award was also quite onerous. She stated that she had to take steps to shut down contact with the unit’s clients every other day to allow her unit to work unhindered and that she sought and obtained assistance from the Ontario regional office. I took from the evidence of Ms. Henderson that what was probably unforeseeable by her and her unit was the amount of work that was generated by the award. Her e-mails also express concern about the inordinate amount of time that was needed for data entry on the SDTAs.

75 However, I find that the timeframe of 90 days under section 157 of the Act significantly shortens the time frame for implementation than what was set out in sections 56 and 57 of the predecessor legislation, pursuant to which the earlier applications for extensions of time were dealt with in the jurisprudence. In the former sections 56 and 57, the actual timeline for implementation was either as agreed to by the parties or when there was no agreement, 90 days from the execution of the collective agreement.

76 While I accept and agree with the reasoning as set out at paragraph 5 of Treasury Board v. PIPSC, I do not believe that the Board is restricted by this reasoning, given the change in wording of the legislation.

77 It was abundantly clear from the evidence before me that the applicant was concerned about the time frame in which it would be required to implement the terms of the new collective agreement. Mr. Park’s evidence was that the applicant initially asked for 150 days. He also stated that the applicant agreed to 100 days because it needed the time. He also stated that of the 27 collective agreements it has to implement, all but one are to be implemented with the deadline running from the date of execution of the collective agreement, which is akin to the wording found in the predecessor legislation. Indeed, Mr. Brown’s evidence was that, in the past, the time frame that the FGDTLCE had agreed to for the implementation of new collective agreements was 90 days from the date of the signing of the collective agreement.

78 While the applicant might have made incorrect assumptions about the implementation period, it cannot be said that those assumptions were made in bad faith, or that it was not diligent in its work towards implementing the award, once the error of the time line was brought to its attention. I have no difficulty in accepting that the Compensation Services unit in the Atlantic Region Service Centre of the DND was working extremely hard, to the point that it was outsourcing work to the Ontario Service Centre, such that it could complete the tasks necessary to implement the award. I have no doubt that the unit was overwhelmed with work, much of it attributable to implementing the award.

79 While section 157 of the Act sets out a 90 day limit, this is a time limit which does not necessarily take into account the variables of workplace reality. In all but one collective agreement involving the applicant, all have time frames to implement longer than 90 days. Indeed, Mr. Brown conceded that previous collective agreements that the respondent had with the applicant had implementation timeframes in which the 90 day time frame commenced from the time of the execution of the collective agreement. The reality of the current labour environment is that it takes time to implement changes to collective agreements, often more time than the 90 days as set out in the Act. The time it takes will be dependent on any number of different variables. While I accept that the applicant is a large and sophisticated employer, with a variety of expertise, the reality is that it employs only so many people that carry out the tasks related to compensation. They can only do so much with the time they have. 

80 I do not agree with the argument of the respondent that suggests that the applicant was insincere in its application for an extension of time; perhaps also suggesting that the application would give rise to cynicism, to quote Chargehands. As the evidence shows, the applicant was transparent about the challenges with the time lines for implementation and discussed these with the respondent. This is not a situation where the applicant has sat back and done nothing, and then come to the Board and asked for an extension of time.  While the applicant may have been mistaken as to the time frame in which they were required to complete certain tasks, the evidence did not suggest that they stood by idly during this time frame and did nothing. It is clear to me that those responsible for implementation have been diligent in working towards implementation to the point of shelving other work and farming work out to other units.

81 Implementation periods are meant to advance and strengthen harmonious labour relations and it is important that implementation periods that are agreed upon or are ordered be realistic and attainable. Where they are not, the “safety valve” referred to in previous jurisprudence should be extended to circumstances such as these where the applicant has demonstrated due diligence and encountered a situation that, though not unforeseen, was impossible to rectify due to honest errors and the labour intensive nature of the work that was required in implementation. That having been said, the applicant did seek the consent from the respondent, but greater prudence on the part of the applicant should have prompted it to seek an extension of time from the Board earlier. While Mr. Park might have hoped that the goodwill between him and Mr. Brown would result in consent to an extension being granted, the proverbial clock was still ticking. By his own admission, at least as early as November 13, 2013 (some five weeks before the actual application), the applicant knew it was unlikely that it would meet the deadlines. While the applicant should have taken certain other steps that it did not, this application was certainly not a surprise to the respondent as Mr. Park and Mr. Brown met and discussed the realities of implementation often and it was clear to the respondent by early December 2013 that the applicant would require more time.  

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

V. Order

83 The application for an extension of time under section 157 of the Act is granted as follows:

1. The implementation date as referred to in Appendix 1, clause 14.12, of the award is extended from December 18, 2013, to February 14, 2014.
   
   
2. The implementation date as referred to in paragraph 51 of the award is extended from December 27, 2013, to February 14, 2014.

February 5, 2014.

John G. Jaworski,
a panel of the Public Service
Labour Relations Board