FPSLREB Decisions

I. Policy grievance referred to adjudication

1 This adjudication concerns a policy grievance filed by the Public Service Alliance of Canada (PSAC or “the bargaining agent”) with the Treasury Board (Department of Employment and Social Development) (“the employer”) on November 21, 2011. In the grievance, the bargaining agent claimed that the employer had advised bargaining unit members who worked as compensation and benefits advisors that all compensation and benefits positions would be transferred to Winnipeg and Montreal within 30 months. The employer advised the advisors to begin looking for other positions but refused to acknowledge that it was a workforce adjustment (WFA) situation. The bargaining agent claimed that a WFA situation existed and that the employer had breached clauses 1.1.11 and 2.1 of the Workforce Adjustment Appendix (“the WFAA”), which is Appendix D of the collective agreement between the PSAC and the employer for the Program and Administrative Services Group; expiry date, June 20, 2014 .

2 As corrective action, the bargaining agent sought the following:

1. a declaration that the employer has breached the WFAA;
2. an order that the employer cease and desist from its ongoing violation of the collective agreement;
3. an order that the employer provide to the PSAC forthwith any and all information relating to the WFA situation and its impact on employees, including the names and work locations of affected employees;
4. an order that all affected employees be informed in writing that their services may no longer be required because of a workforce adjustment situation;
5. an order that the employer cease all activity related to the positions in question until meaningful consultation with PSAC has occurred;
6.  an order that the employer meet with PSAC representatives on an ongoing basis with respect to the WFA situation;

Any other relief as the PSAC may request and deemed just in the circumstances.

3 At the commencement of the hearing, the bargaining agent advised that although the grievance requested six different declarations or orders, most were no longer necessary, and that it sought only a declaration that the employer had breached the WFAA.

4 Clauses 1.1.11 and 2.1 of the WFAA read as follows:

1.1.11 Departments or organizations shall advise and consult with the Alliance representatives as completely as possible regarding any workforce adjustment situation as soon as possible after the decision has been made and throughout the process and will make available to the Alliance the name and work location of affected employees.

…

2.1 Department or organization

2.1.1 As already mentioned in 1.1.11, departments or organizations shall advise and consult with the bargaining unit representatives as completely as possible regarding any workforce adjustment situation as soon as possible after the decision has been made and throughout the process, and will make available to the bargaining agent the name and work location of affected employees.

2.1.2 In any workforce adjustment situation which is likely to involve ten (10) or more indeterminate employees covered by this Appendix, the department or organizations concerned shall notify the Treasury Board Secretariat of Canada, in confidence, at the earliest possible date and under no circumstances less than four (4) working days before the situation is announced.

2.1.3 Prior to notifying any potentially affected employee, departments or organizations shall also notify the Chief Executive Officer of the Alliance. Such notification is to be in writing, in confidence and at the earliest possible date and under no circumstances less than two (2) working days before any employee is notified of the workplace adjustment situation.

2.1.4 Such notification will include the identity and location of the work unit(s) involved, the expected date of the announcement, the anticipated timing of the workforce adjustment situation and the number, group and level of the employees who are likely to be affected by the decision.

5 “Workforce adjustment” is defined in the definition section of Appendix D of the collective agreement as follows:

Workforce adjustment … – is a situation that occurs when a deputy head decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to participate or an alternative delivery initiative.

II. Preliminary issue concerning the admissibility of post-grievance evidence

6 At the commencement of the hearing, the employer advised that it was objecting to evidence that the bargaining agent wished to introduce about a transfer of files in January 2012. The employer submitted that this evidence was not relevant as it postdated the grievance, which was filed on November 21, 2011.

7 The employer submitted that the grievance related to events on or before November 21, 2011, and that by relying on events from January 2012, the bargaining agent was in essence changing the nature of the grievance. The employer referred to Chase v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 9, which, citing Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), had held that a grievance presented at adjudication could not differ from the one discussed at the final level of the grievance process.

8 The bargaining agent replied that this is a continuing grievance and that the transfers in January 2012 were relevant as evidence of a continuing violation, until April 2012, of the employer’s obligation to acknowledge that a WFA situation existed. The evidence was relevant to addressing the employer’s position that the necessary conditions precedent to establish a WFA situation did not exist until April 2012.

9 I ruled that I would hear the evidence. It appeared that the nature of the grievance concerned determining when sufficient conditions existed to create a WFA, as defined in the collective agreement. Although the grievance related to the state of things when it was filed, in my opinion, evidence of subsequent events, such as when files began to be transferred, was relevant to considering the employer’s position that the necessary conditions precedent did not exist until April.

III. Summary of the evidence

10 Four witnesses testified. The bargaining agent called Steve McCuaig and Elenore Szakaly. The employer called Cathy McLaughlin and David Stafford. At the time in issue Mr. McCuaig was Executive Vice President of the Canada Employment and Immigration Union, which is a component of the Public Service Alliance of Canada, and permanent co-chair of the Human Resources Union Management Consultation Committee. Ms. Szakaly had worked between 2008 and 2012 as a benefits and compensation advisor for the employer in Edmonton, Alberta. Ms. McLaughlin was Director of Compensation and Benefits for what was formerly Human Resources and Skills Development Canada (HRSDC), and is now the Department of Employment and Social Development. Mr. Stafford was the acting compensation manager for the three western-most provinces and Nova Scotia and was Ms. Szakaly’s direct supervisor.

11 The employees referred to in the grievance worked as compensation and benefits advisors for what was formerly HRSDC at 34 sites across Canada. Other federal government departments had their own compensation and benefits employees.

12 Ms. McLaughlin became Director of Compensation and Benefits on April 1, 2008. Approximately 300 compensation and benefits advisors came under her direction. The advisors reported to 10 human resources directors. Ms. McLaughlin testified that there was a mishmash of different structures between the 34 sites and that her department had been receiving hundreds of complaints. When she was appointed, she was given the job of centralizing services.

13 Ms. McLaughlin described 2008 as the “centralization year.” In 2009, a group of advisors were brought together to standardize the employer’s processes, the intention being to process the work in a standard way so that no matter where the work was located, it could be moved seamlessly from one office to another. The group examined the processes and the types of organization being used in other federal government departments. After consultations and meeting with team leaders, a plan was proposed, modelled generally on the Canada Revenue Agency’s (CRA) reorganization.

14 Ms. McLaughlin said that in May 2010, she pitched it to her assistant deputy minister and that she received preliminary approval for the plan. She said that from May until October, she juggled her day-to-day job with thinking of the best way to accomplish the transformation while staying within budget. As part of that process, she met and consulted with more than 200 employees on a one-on-one basis.

15 In August 2010, the Prime Minister announced that all the federal government’s pay services were going to be consolidated in Miramichi, New Brunswick. This was referred to as a federal-government-wide transformation and was scheduled to be finalized by fiscal year 2015-2016. However, the first departments to be affected were those that had been using a more modern type of software than Ms. McLaughlin’s department. At that time, the HRSDC had only recently begun to use the new software and therefore would not be involved in the first phases of the move to Miramichi.

16 On September 21, 2010, at a meeting of the HRSDC’s Human Resources Union Management Consultation Committee, the Prime Minister’s announcement was discussed. At that time, Sylvain Dufour, Director General, HRSDC’s Centres of Expertise, advised that a preliminary assessment made by Public Works and Government Services Canada (PWGSC) was that 45% of the affected employees would soon be eligible for retirement and that it did not foresee any loss of jobs arising from the transformation. Mr. Dufour added that there was sufficient time for the PWGSC and the departments to work on a comprehensive human resources strategy to minimize the impact.

17 In October 2010, Ms. McLaughlin hired a consultant who had formerly worked with the CRA in its transformation to assist her in planning how to internally transform the organization of the HRSDC’s compensation and benefits section.

18 On March 15, 2011, at another meeting of the HRSDC’s Human Resources Union Management Consultation Committee, Mr. Dufour spoke of confusion between the HRSDC’s internal transformation and the broader, all-department “Transformation of HR Services Delivery” and said that there would be “… no compensation and benefits office closures.”

19 However, the HRSDC’s plans changed. Ms. McLaughlin testified that by 2011, it had “a solid-enough plan so that they knew what was working well and what was not” and, as a solution to its organizational problems, had identified two sites where consolidation would take place.

20 In May or in the beginning of June 2011, the deputy head approved the consolidation of all the HRSDC’s compensation and benefits offices into just two offices, in Winnipeg and Montreal.

21 On September 26, 2011, Mr. Dufour invited Mr. McCuaig and Don Rogers, then the new president of the component, to a teleconference, which was to include an update on the current status and next steps for their compensation and benefits transformation. However, neither Mr. McCuaig nor Mr. Rogers was able to attend.

22 On October 13, 2011, the Acting Deputy Minister of the HRSDC announced the consolidation of the existing 34 sites to 2. The announcement included the following statements:

…

Over the next 30 months, C&B will begin consolidating work from our existing 34 sites to two - in Winnipeg and Montréal. This consolidation is a first step in the transition to the public service-wide consolidation of C&B processing to PWGSC in Miramichi, New Brunswick by 2015 as announced by the Prime Minister in August 2009.

Winnipeg and Montréal were selected as the two sites for processing the C&B workload after a detailed analysis. This decision was made by looking at the bilingual population, workforce availability, and HRSDC and Government of Canada presence, including commercial and real estate costs, in six major cities.

This consolidation will, of course, impact the number of staff needed and where they are located: approximately 194 positions –(not including Winnipeg and Montréal) – will be impacted by these changes over the next 30 months.

In keeping with the principles of our Workforce Management Strategy [refers to website], we will manage these workforce impacts with the help of attrition, reassignment, placement and training.

…

During this transformation, I know that these changes may be especially difficult for those who are personally affected but I want to reiterate that the Department’s first priority, and our principal commitment, is to employment continuity for indeterminate staff. …

23 Ms. McLaughlin was cross-examined about why the employer did not announce a WFA at that time. She said that it had had internal discussions about it. She stated that the employer did not announce a WFA situation that October for two reasons. First, it needed a date on which the work would be transferred. Second, it wanted to staff the Winnipeg office and create a project office. She was aware of the WFA. She said that the phrase “… will make available to the Alliance the name and work location of affected employees” was interpreted as requiring that the names and work locations of affected employees be known before a WFA situation came into existence. She said that as of then, it had been very successful in placing employees but acknowledged that it was understood that the consolidation would cause the loss of some positions.

24 Ms. Szakaly was working as a compensation and benefits advisor in the employer’s Edmonton office. There were 10 to 12 advisors in the office. They knew the consolidation to Miramichi was expected to occur 30 months after it was announced. She testified that on November 9, 2011, she participated in a conference call in which the Edmonton advisors were told that the files would be removed from their office by February 13, 2012. She testified that it took them by surprise. When one of the advisors asked why no bargaining agent representative was present, they were told that the bargaining agent was not needed. She understood that the office would be closed on February 13 and denied they were told that even after the files had been removed, there would be work for them. As a consequence, Ms. Szakaly started looking for work in January 2012. She commenced working for another federal government agency as a compensation and benefits advisor on February 13, 2012.

25 Ms. Szakaly reported to Mr. Stafford, who was the acting compensation manager for the three western-most provinces and Nova Scotia. He testified that he could not remember being questioned about bargaining agent representation at the meeting. He also said that he recalled being asked the following: “The work is gone. What are we going to do?” He replied, stating that there was still work within the region that would be moved between offices in order to even workloads. He said that all affected employees in that office wanted to stay in Edmonton. As of the date of the hearing, only one indeterminate and one determinate employee had not been placed in new positions. They were being employed doing work that had been transferred from other offices.

26 The bargaining agent reacted to the news of the consolidation to the two offices by attempting to persuade the employer to abandon the move to Winnipeg and Montreal as unnecessary and disruptive because within a relatively short time, all the work would be consolidated in Miramichi. The move to Winnipeg and Montreal meant the WFA situation would soon need to be repeated. The employer’s answer was that it needed the interim consolidation in order to introduce modern systems and automated processes before the work moved to Miramichi.

27 On November 21, 2011, the bargaining agent filed this policy grievance.

28 From October 2011 through March 2012, the employer pursued a course of attempting to find positions for all the compensation and benefits employees who were impacted by the consolidation to Winnipeg and Montreal. On March 20, 2012, Ms. McLaughlin sent an email reporting on the status of its efforts, which read in part as follows:

At the time of the announcement, our Department committed to no involuntary job losses for indeterminate employees as a result of this transformation.

 We are pleased to announce that since October 2011, we have been working together with employees towards meeting this commitment and have found remarkable placement success.

 Of the 177 impacted indeterminate C & B employees, 55 employees have either secured permanent positions or have found an assignment or secondment with permanent placement potential. To date:

•  3 employees have been relocated to the new CBSC in Winnipeg;
•  27 employees have accepted deployments within HRSDC;
•  14 employees have accepted deployments to other government departments; and
• 11 employees have accepted an assignment or secondment with permanent placement potential.

An additional 14 employees have left or will be leaving through means of attrition. To date:

•  4 employees have retired;
•  2 employees have resigned; and
•  8 employees will be retiring between now and June 2013.

We are continuing to work collaboratively with employees to find opportunities for the remaining staff.

What file transfers have occurred so far?

On February 13, 2012, 2,699 files from Alberta, Saskatchewan, Manitoba, Northwest Territories and Nunavut were transferred to the new CBSC in Winnipeg. The new CBSC is currently operating with 40 indeterminate and two term employees.

The Western region was chosen as the first file transfer site as a result of the success in securing other employment for our staff in these locations. Alternate employment opportunities were found for all indeterminate employees who were impacted by the first transfer and in most cases these offers were accepted.

Where are we going from here?

Our employees’ success in securing alternate employment during this period of transformation has resulted in the need to balance the national workload.

 In order to manage this, we’ve scheduled two work transfers, one in March and one in May, to transfer files from sites in Ontario, the Atlantic Provinces and NHQ:

•  On March 28, 2012, 1,550 pay files will be transferred from various sites in Ontario and the Atlantic provinces to the CBSC in Winnipeg.
•  On May 23^rd, 2012 1,997 pay files will be transferred from the NHQ office to the CBSC in Winnipeg.

I remain committed to keeping you informed as the project progresses and will be communicating regarding future transfer dates as soon as these are confirmed. In the interim, for regular updates and answers to some Frequently Asked Questions, please consult the Compensation and Benefits Service Center [sic] [website].

29 The bargaining agent communicated that it appreciated receiving the information, and the evidence was that it was regularly provided with updates on placements after that time.

30 On April 10, 2012, the employer sent the bargaining agent’s then national president and chief executive officer a letter advising of “… an impending workforce adjustment situation in Human Resources and Skills Development Canada resulting from the implementation of the Compensation and Benefits Transformation Project as part of Strategic Review within the Human Resources Services Branch.” It stated that it was attaching a list of employees, by location and group and level, affected by the relocation of a work unit, “… in accordance with the official notification requirements under the Workforce Adjustment Appendix of the collective agreement for the Program and Administrative Services Group.” It advised that the department intended to advise the employees in writing of the relocation of the work unit that week. The attached list contained the names of 114 employees.

31 On April 12, 2012, letters were sent to all employees whose positions were being relocated to either Winnipeg or Montreal. Examples were put in evidence, which were addressed respectively to an employee who worked in a position located in Gatineau, Quebec, and another who worked in New Glasgow, Nova Scotia. Each letter informed the addressee that his or her position would be relocated to Winnipeg during the period commencing January 16, 2013, and finishing on or before June 30, 2013. It stated that in accordance with Part III of the WFAA, each was being advised of the move and given the opportunity to decide whether he or she wished to relocate with the position. After advising that any relocation costs would be paid by the department, the letter stated that if he or she decided not to move with the position, he or she would be treated as if subjected to a WFA situation. The letter continued as follows:“You are requested to advise me in writing not later than October 12, 2012, whether or not it is your intention to move to the new location. Please indicate your decision by completing and returning a signed copy of this letter to … .”

32 The letter went on to advise that a departmental vacancy management system had been developed to assist the employer in its efforts to identify alternate employment opportunities for the employees and to request the completion of a consent form so that the employees’ personal information could be entered into the vacancy management system. It also provided contact information about a number of available services, including WFA counselling, career counselling and the employee assistance program.

33 Ms. McLaughlin testified that of the 177 employees impacted by the October 13 announcement, only 114 had to be issued a WFA notice. I note that 2 of the 114 employees were located in the Edmonton office. Ms. McLaughlin said that subsequent to April 10, 2012, they continued to find placements. For example, work was found for everyone located in offices in the Maritime provinces.

IV. Summary of the arguments

A. For the bargaining agent

34 The central issue is whether a WFA situation existed between October 2011 and April 2012.

35 Clauses 1.1.11 and 2.1.1 of the WFAA both require the employer to advise and consult with bargaining agent representatives as completely as possible about any WFA situation as soon as possible after the decision is made to create one. Clause 2.1.3 requires the employer to advise the bargaining agent several days in advance of advising any employee of a WFA situation.

36 “Workforce adjustment” is defined as a situation that occurs when a deputy head decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of, in this case, the discontinuance of a function or a relocation in which an employee does not wish to participate.

37 In support of its interpretation, the bargaining agent relied on the Public Service Staff Relations Board (“the former Board”) decision in Public Service Alliance of Canada v. Canada Customs and Revenue Agency, 2002 PSSRB 23, in which six different computer systems used in processing T-3s were being merged. This resulted in a planned reduction in the number of employees needed to do the work. A document issued in 2000 stated that one of the affected sections would require 16 fewer indeterminate employees in 2002 and 4 fewer in 2003. Instead of declaring a WFA situation, the employer embarked on a process of reducing the number of employees working in the affected positions by moving people from those positions to other types of positions. A witness for the employer explained that management considered activating the WFA policy as a failure to do its job. Management was telling employees that the employer could not guarantee a job for them and that they would have to play by strict rules. Had the WFA policy been activated, a reverse-order-of-merit selection would have had to have been carried out to identify employees who least merited employment. After that, employees might or might not have been given an employment offer. If a reasonable offer were made, they would have had to accept it, as the policy requires the employer to make only one reasonable offer. In contrast, under the placement strategy, the employees could have tried as many different types of jobs as they wished. The union-management placement committee followed this approach because of the success it had experienced in finding employees opportunities to work in areas where they could better position themselves and compete for promotional appointments when they arose. The employer used the same rationale in the present case. The former Board rejected this argument and held that the employer had breached the same clause as clause 1.11.1 in the present collective agreement. The former Board held that the WFA was in effect and that the collective agreement did not contemplate “… a phase in a WFA situation … during which the employer may chose [sic] to do whatever it wishes or with whom it will do it.”

38 The October 13 email identified 32 positions that were going to be eliminated over the next 30 months. The positions were identified with sufficient precision. Thirty-four sites were being reduced to two sites.

39 The bargaining agent agreed that after October 13, the employer acted within the spirit of the WFA provisions by trying to find alternative placements for affected employees and by keeping the bargaining agent well-informed about its progress. However, it submitted that having a WFA declared was the only means to ensure that employees would come under the protection of the collective agreement.

40 The bargaining agent referred me to the following cases: Canada Customs and Revenue Agency; and Public Service Alliance of Canada v. Canada Revenue Agency, 2006 PSLRB 41.

B. For the employer

41 At issue was the status of things on November 21, 2011, the day the grievance was filed. The obligation to advise and consult had not yet arisen when the grievance was filed.

42 The object in interpreting the language of a collective agreement is to discover the intention of the parties. The intention must be gathered from the written instrument, keeping in mind the climate of employer-employee relations in a collective agreement. It is a cardinal principle that the collective agreement should be interpreted as a whole. The entire WFAA, as well as other provisions of the collective agreement such as those concerning management rights, shows that the overriding intention in the collective agreement is that everything possible will be done to provide continued employment to employees whose positions are disappearing. The notion of continued employment is often repeated.

43 Article 23 of the collective agreement reads as follows:

JOB SECURITY

23.01 Subject to the willingness and capacity of individual employees to accept relocation and retraining, the Employer will make every reasonable effort to ensure that any reduction in the workforce will be accomplished through attrition.

44 The WFAA contains the following under the heading “Objectives”:

It is the policy of the Employer to maximize employment opportunities for indeterminate employees affected by workforce adjustment situations, primarily through ensuring that, whenever possible, alternative employment opportunities are provided to them. This should not be construed as the continuation of a specific position or job but rather as continued employment.

To this end, every indeterminate employee whose services will no longer be required because of a workforce adjustment situation and for whom the deputy head knows or can predict that employment will be available will receive a guarantee of a reasonable job offer within the Core Public Administration. Those employees for whom the deputy head cannot provide the guarantee will have access to transitional employment arrangements (as per Parts VI and VII).

45 Part I of the WFAA, “Roles and responsibilities,” begins with this clause:

1.1.1 Since indeterminate employees who are affected by workforce adjustment situations are not themselves responsible for such situations, it is the responsibility of departments or organizations to ensure that they are treated equitably and, whenever possible, given every reasonable opportunity to continue their careers as public service employees.

46 In its submission, the bargaining agent did not refer to the most important requirement in the definition section of the WFAA, which is, “… when a deputy head decides that the services of one or more indeterminate employees will no longer be required … .”

47 The remaining part of the definition requires that the situation be caused by one of several listed situations. The relevant situation in the present case is “… a relocation in which the employee does not wish to participate … .”

48 The following provision in Part III of the WFAA is also relevant:

…

Relocation of a work unit

…

3.1.1 In cases where a work unit is to be relocated, departments or organizations shall provide all employees whose positions are to be relocated with the opportunity to choose whether they wish to move with the position or be treated as if they were subject to a workforce adjustment situation.

3.1.2 Following written notification, employees must indicate, within a period of six (6) months, their intention to move. If the employee’s intention is not to move with the relocated position, the deputy head can provide the employee with either a guarantee of a reasonable job offer or access to the options set out in section 6.3 of this Appendix.

…

49 I note that the options referred to in section 6.3 of the WFAA are a 12-month or possibly longer “… surplus priority period in which to secure a reasonable job offer,” a cash payment called a “Transition support measure,” or reimbursement of up to $10 000 for education expenses. If no reasonable job offer is made to the employee within the surplus priority period, he or she still has the option of receiving the transition support measure or alternatively the reimbursement for education expenses.

50 The employer submitted that therefore, the definition of a WFA requires that the employee’s services will no longer be required beyond a specified date. When that is known, the employee must then decide whether to relocate. If the employee decides not to relocate, then the deputy head decides if another job is available.

51 In the present case, the definition required that the date the positions were moving to Winnipeg had to be set in stone. Initially, that was not the case. There was no business plan with a definite date. Instead, an attempt was made to work by consensus. While Winnipeg and Montreal had been identified as the two sites where all the work would be consolidated, initially, Winnipeg had insufficient resources, and decisions had to be made about what work was going there and what staff had to be hired for that office.

52 Ms. McLaughlin’s evidence was that no declaration was made until April 2012 because until that point, there was no firm plan. The employer needed to set up the Winnipeg site and was dependent on the impact of the federal government’s budget. She was optimistic that it would find employment for most of the affected employees who did not wish to relocate, but with the budget, she knew that some employees would be told that their services were no longer required.

53 The factual circumstances in Canada Customs and Revenue Agency, relied on by the bargaining agent, are substantially different. That case did not involve relocation but automation, and the affected employees had no option to move with their positions.

54 In the present case, obviously, relocating the positions would impact the persons who worked in those positions. However, the nature of the impact is important, that is, a loss of jobs. In order for a WFA situation to exist, the employees and the positions affected needed to be known with precision. Clause 2.1.1 of the WFAA requires that as soon as possible after the decision is made, the bargaining agent will be advised of the names and work locations of affected employees. In October 2011, the employer did not have that information. How was the employer to know who would agree to move and who would not? If the object was to continue employment, why would the employer have declared a WFA situation?

55 In Canada Revenue Agency (affirmed in 2008 FC 485), the Public Service Labour Relations Board (“the Board”) held that when interpreting identical operative language, the definition of “work force adjustment” required “certainty” on the part of the decision maker that the services of one or more indeterminate employees would no longer be required beyond a specified date.

56 In the present case, there was no such certainty in the fall of 2011.

57 Alternatively, the employer submitted that the bargaining agent was kept up to date. Mr. McCuaig responded to the employer’s email of March 20, 2012, by indicating that it was satisfied with the information that was provided. In his testimony, he said that the employer appeared to have complied with the spirit of the WFA.

58 The employer referred me to the following authorities: Chase; Laughlin Walker v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 62; Canadian Union of Public Employees (Local 34) v. Saskatoon School Division No. 13 (2003), 120 L.A.C. (4th) 150; Brown and Beatty, Canadian Labour Arbitration (4th ed.), at para 2:3240, 4:2100, 4:2110, 4:2120, 4:2130, 4:2140 and 4:2150; Khurana v. Treasury Board (Veterans Affairs), PSSRB File Nos. 166-02-24750 to 24752 and 25270 (19941107); Moore v. Treasury Board (Canadian Grain Commission), 2006 PSLRB 31; Public Service Alliance of Canada v. Attorney General of Canada, 2008 FC 485; Canada Revenue Agency; Palmer and Snyder, Collective Agreement Arbitration in Canada (4^th ed.), at para 2.1 to 2.26; and Thomas v. Treasury Board (Department of Human Resources and Skills Development), 2012 PSLRB 49.

C. The bargaining agent’s rebuttal

59 The bargaining agent agreed that the intention expressed throughout the collective agreement was to strive for continuity of employment. The bargaining agent was not stating that employees should immediately be declared surplus.

60 The WFAA defines an “affected employee” as an “… indeterminate employee who has been informed in writing that his or her services may no longer be required because of a workforce adjustment situation.” The use of “may” indicates a possibility and not a certainty. Therefore, it is not necessary that a final decision be made that an employee’s services will definitely not be required. When a WFA situation is created, there is an obligation on the employer with respect to the redeployment or the retraining of affected employees.

61 Clauses 1.1.5 and 1.1.15 of the WFAA read as follows:

1.1.5 Departments or organizations shall establish systems to facilitate redeployment or retraining of their affected employees, surplus employees, and laid-off persons.

…

1.1.15 Departments or organizations are responsible for counselling and advising their affected employees on their opportunities for finding continuing employment in the public service.

62 Article 23 of the collective agreement is titled “Job Security” and states as follows at clause 23.01:

23.01 Subject to the willingness and capacity of individual employees to accept relocation and retraining, the Employer will make every reasonable effort to ensure that any reduction in the workforce will be accomplished through attrition.

63 The WFAA, in the section entitled “General” and sub-titled “Collective Agreement” states as follows on:

Notwithstanding the Job Security Article, in the event of conflict between the present Workforce Adjustment Appendix and that Article, the present Workforce Adjustment Appendix will take precedence.

64 The bargaining agent submitted that it would not be able to assert those rights unless the WFAA applied. In this case, the employer knew on October 13, 2011 that the existing 34 sites were being consolidated into 2 sites over the next 30 months. Therefore, it knew that the employees at all sites, except for Winnipeg and Montreal, would be affected employees, as their services might not be required.

V. Reasons

65 It is common ground that one of the purposes behind the various provisions in the collective agreement and the WFAA referred to earlier in this decision is to provide continuing employment, if reasonably possible, to employees whose positions have been relocated and who do not wish to follow the positions to the new locations.

66 The bargaining agent stated that the written notice that a WFA existed should have been made at about the time of the October 13, 2011, announcement that the 34 sites were being consolidated into 2 sites, in Winnipeg and Montreal. Clause 2.1.3 of the WFAA required the employer to advise the bargaining agent several days in advance of advising any employee of the WFA situation.

67 The employer stated that that would have been premature because the deputy head had not decided which employees would no longer be required. Ms. McLaughlin testified that this was because it hoped that a substantial number of employees who did not wish to relocate to Winnipeg or Montreal could be placed in other federal government positions. However, even after the employer provided written notice of the WFA situation, successful efforts continued in placing affected employees in other federal government positions. As an example, work was found for everyone affected in the Maritime provinces who did not wish to move to Montreal or Winnipeg.

68 The issue is simply whether, on or about October 13, 2011, the employer was required to give written notice of a WFA situation. The employer submitted that it could not have complied then with clause 1.1.11 or 2.1.1 of the WFAA because on October 13, 2011, it did not know the names and locations of affected employees, within the meanings of those clauses. In support of this conclusion, it relied on Canada Revenue Agency. In that case, the Board held as follows at paragraph 51:

51 … To determine when an employee must be informed in writing that he or she is affected, one must first look to the definition of "work force adjustment". A WFA situation occurs when the Commissioner decides that the services of one or more indeterminate employees will no longer be required beyond a specified date. This definition requires certainty on the part of the Commissioner. He must first of all be certain that services will no longer be required (not that those services might not be required) and, secondly, that those services will no longer be required after a specific date….

69 The Board obtained support for the conclusion that there was a “requirement of certainty” from a clause requiring the CRA to provide the PSAC with the names and work locations of affected employees, stating: “This presupposes that the CRA has identified both the positions and the work locations of employees who will be affected.”

70 The facts in Canada Revenue Agency were quite different from the present case. The CRA was required to cut $110 million from its budget. It responded by announcing a reduction in costs that was to be achieved by, over several years, phasing out counter services for cash payments and enquiries. Employees were provided with questions and answers that included the statement that approximately 200 full-time equivalent positions would be reduced in enquiries counter services and that fewer than 100 would be reduced in cash counters by fiscal year 2007-2008. This was accompanied by a statement that the employer was committed to using attrition, job placements and retraining opportunities when possible to minimize the impact of these changes on the then-current employees. There was evidence that more than 1000 employees worked at cash counters and at enquiries counter services. The generic job descriptions for enquiries counter services gave employees the flexibility to move back and forth among other types of service positions. Approximately 2500 full-time-equivalent employees had counter services as part of their job descriptions.

71 The bargaining agent filed a policy grievance alleging a breach of the WFAA, in which it grieved that employees with cashier functions and enquiries counter functions in their statements of duties should have been declared affected on the date of the announcement. The Board dismissed the grievance in Canada Revenue Agency, holding as follows:

…

52 In my view, the language in the WFA Appendix to the collective agreement supports the interpretation that before the WFA notice provisions are triggered, the CRA must have made a decision with enough precision to identify the work locations, the positions that will be affected, and the date on which those positions will be affected….

…

72 In that case, the employer was still in the process of identifying the positions affected. The present case is very different, as each affected position was known on October 13. The work locations, the affected positions and the date on which the positions would be affected were all known. All the compensation and benefits advisory positions in locations other than Winnipeg and Montreal were being eliminated over the next 30 months. The evidence is clear that that decision had been made and authorized by the appropriate authority. It was still unclear how much of the work would end up in Winnipeg and what the Winnipeg staffing requirements would be. But there was certainty at the other end; a decision had been made that 32 sites were to be eliminated.

73 The WFAA, at paragraph 1.1.11, states that the employer SHALL advise and consult with the bargaining agent in a timely manner when a WFA situation arises. The definition of WFA therefore is the central clause in determining this dispute and it says that such a situation arises when the deputy head decides that the services of employees WILL no longer be required beyond a specified date.

74 I find from the evidence, on the balance of probabilities, that the employer knew, in October of 2011, that the services of a substantial number of employees would no longer be required because many employees in 32 sites would not wish to relocate. Surely the employer could have been under no illusion that there would be no job losses as a result of closing 32 offices, when it made the decision. Once the decision was made early in the summer of 2011, it had three or four months in which to develop its plans before the October announcement. Even if it did not know there would be job losses in May or June, they surely had come to this conclusion by the fall of 2011. There is no possibility that the employer could reasonably expect all employees in those 32 sites to accept to move to Winnipeg or Montreal. Indeed Mr. Stafford’s evidence at paragraph 25 was that all of the employees in Edmonton wished to remain there and none wished to relocate.

75 The employer argues that no specified date had yet been determined in October of 2011. However, in paragraph 22 the Acting Deputy Minister’s announcement indicates a 30 month target for the consolidation process. It seems to me this is sufficient for the purposes of the WFAA.

76 From the evidence, I conclude that the employer was well-intentioned and indeed tried to avoid for employees the most stressful part of the WFA process in proceeding as it did. However, such intentions do not always meet the requirements of the collective agreement and that is the case here. The collective agreement requires only that the services of employees will not be required beyond a specified date.

77 Section 1.1.11 is fairly broad in terms of specifying just how precise such a decision must be. The bargaining agent argues that it need not be employee-specific while the employer argues the opposite. One can turn to other provisions in the WFAA in order to give some meaning to the definition of “workforce adjustment” in the definition section, and in particular , to paragraph 2.1.1 which indicates that as part of the employer’s responsibilities in cases of a WFA, it will make available the names and work location of affected employees. This term is defined in the definition section of the WFAA as an employee whose services may no longer be required. I therefore agree with the bargaining agent’s position that the employer’s obligations towards employees begins at the time that it knows that its actions might result in job losses.

78 I find that there was sufficient certainty to declare a WFA situation on or about October 13, 2011, and that at that time, notice of it should have been given to the employees at the identified locations, excepting Winnipeg and Montreal.

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

VI. Order

80 I declare that the employer breached the provisions of the WFAA on or about October 11, 2011, by failing to advise and consult with the bargaining unit representatives about the WFA situation, in accordance with the WFAA, and by failing to make available to the bargaining agent the names and work locations of affected employees.

March 10, 2014.

William H. Kydd,
adjudicator