FPSLREB Decisions

Heard at Montreal, Quebec,
February 10 to 13, 2015.

REASONS FOR DECISION

I. Policy grievance referred to adjudication and complaint before the Board

1        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2. Further, pursuant to section 395 of the Economic Action Plan 2013 Act, No. 2, a member of the former Board seized of this matter before November 1, 2014, exercises the same powers, and performs the same duties and functions, as a panel of the Board. Also, pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the PSLRA as that Act read immediately before that day.

2        The parties presented an agreed statement of facts. Instead of reproducing it, I have incorporated the pertinent facts into this decision.

3        The Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN has been certified since 2001 as the bargaining agent for all correctional officers at levels I and II (CX-01 and CX-02) employed by the Government of Canada. Since 2001, the bargaining agent has concluded two successive collective agreements with the Treasury Board (“the employer” and “the respondent”), the first on June 26, 2006, and the second on November 5, 2013.

4        On February 18, 2014, the bargaining agent filed a policy grievance with the former Board (file no. 569-02-148) alleging a violation of clause 31.04 of the collective agreement it had concluded with the employer that had an expiry date of May 31, 2014 (“the collective agreement”). The policy grievance, which was referred to adjudication on April 1, 2014, was worded as follows:

I grieve the employer’s unilateral decision, which it communicated in a letter dated January 29, 2014 and received [sic] on or about January 31, 2014, to modify its interpretation of Article 31.04 of the Collective Agreement.

5        Clause 31.04 of the collective agreement reads as follows:

31.04 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 31.02, sick leave will be granted to the employee for a period of up to two hundred (200) hours, subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

6        Since June 26, 2006, the terms of the collective agreement concerning granting sick leave provided that an employee was granted sick leave with pay when he or she was unable to perform his or her duties because of illness or injury provided that (a) he or she satisfied the employer of such a condition in such a manner and at such a time as might have been determined by the employer, and (b) he or she had the necessary sick leave credits. If an employee had insufficient or no sick leave with pay, the employee would be granted a period of advanced sick leave of up to 200 hours based on the employee’s request.

7        By letter dated January 29, 2014, addressed to the bargaining agent’s national president, Kevin Grabowsky, the Correctional Service of Canada’s (CSC) assistant commissioner, human resources management, Kathryn Howard, notified the bargaining agent of a change to its “ ... practices and/or understandings with regard to the advancement of sick leave pursuant to the provisions of Article 31.04 ...” (Exhibit U-6). Particularly, the letter stated that effective April 1, 2014, managers would no longer grant a subsequent period of advance until the employee had fully repaid any previously granted period of advance through earned sick leave credits. Attached to the letter was a draft communiqué to CSC employees and a draft national direction on sick leave and the requirements for medical certificates and credit advances.

8        On February 14, 2014, an email on behalf of Ms. Howard was sent to all correctional officers, notifying them of the changes to be applied effective April 1, 2014 (Exhibit U-7).

9        On February 17, 2014, the employer sent a notice to bargain collectively to the bargaining agent (Exhibit U-8).

10        The policy grievance requested the following corrective actions:

I request a declaration that the employer breached the collective agreement;

I request an immediate retraction of the employer’s new interpretation of Article 31.04 and a return to the interpretation as applied since June 2006;

I request that employees who have been or will be affected by the employer’s new interpretation be made whole;

And all other rights under the Collective Agreement, as well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.

11        On April 1, 2014, the bargaining agent filed an unfair labour practice complaint pursuant to s. 190(1)(c) of the PSLRA,alleging that the employer had violated s. 107 by unilaterally modifying the terms and conditions of employment of its members when notice to bargain collectively had been given (file no. 561-02-679).

12        With the parties’ agreement, the former Board joined these two matters for the purposes of the hearing. The evidence led by the parties was common to both the policy grievance and the complaint.

13        At the outset of the hearing, the employer raised an objection to the admissibility of any extrinsic evidence as in its view, the collective agreement language was clear. After hearing and considering the submissions of both parties, I ruled that extrinsic evidence would be admitted and considered in the event that I found clause 31.04 ambiguous.

II. Summary of the evidence

A. For the bargaining agent

1. Kevin Grabowsky

14        Mr. Grabowsky is a correctional officer, classified CX-02, who has been employed with the CSC for 36 years. Elected as the bargaining agent’s national president in 2013, he had previously served as its regional president, Prairies, from 2001 to 2013. He has sat at the bargaining table for all negotiations with the employer since 2001.

15        Mr. Grabowsky described the bargaining agent’s national executive structure as follows: there are a national president, two national vice-presidents, and five regional presidents, one each for the Pacific, Prairies, Ontario, Quebec, and Atlantic regions. He stated that the duties of a regional president include sitting on the bargaining agent bargaining committee, overseeing committees in the region, and participating on national committees and on labour-management committees. As national president, he oversees the bargaining agent as a whole and its finances, chairs national committees, regularly meets with regional executives and local presidents, and sits on the bargaining committee.

16        Mr. Grabowsky stated that before 2006, clause 31.04 read in part, “... sick leave with pay may, at the discretion of the Employer, be granted to an employee ...”. Thus, an employee’s request for sick leave depended on the approval of the warden of a CSC institution. During collective bargaining, on April 10, 2002, the bargaining agent proposed that clause 31.04 be amended to eliminate the employer’s discretion with the following wording: “... sick leave will be granted to the employee ...” (Exhibit U-1).

17        The bargaining agent’s proposal was accepted and formed part of the collective agreement signed on June 26, 2006 (Exhibit U-2). Mr. Grabowsky stated that during discussions about the proposed amendment, whether in subcommittee or at the general table, no mention was made of employees having to repay sick leave advances before additional sick leave would be approved.

18        Mr. Grabowsky referred to “Labour Relations Bulletin 2006-08” (“bulletin 2006-08”) dated November 2006 issued by the CSC in reference to the collective agreement and titled “National Direction – Sick leave, requirements for medical certificates and advance of credits” (Exhibit U-3). The bulletin states as follows under the title “Advancing Sick Leave”:

When an employee has insufficient or no credits available to cover periods of sick leave, sick leave will be granted to the employee for a period up to 200 hours as specified in the article (31.04). Any leave advanced will be deducted from any sick leave credits subsequently earned. Please note that the period for which leave can be advanced is up to 200 hours and is intended to help cover periods of sick leave when they occur. Consequently, the provision to advance sick leave credits is not intended to automatically advance 200 hours but to advance the leave necessary to cover absences due to illness for one or a series of periods up to a maximum of 200 hours.

If employment with the CSC is later terminated for reasons other than incapacity, death or lay-off, outstanding sick leave advances shall be recovered from any monies owed (28.06).

[Emphasis in the original]

19        According to Mr. Grabowsky, bulletin 2006-08 does not set a limit on the number of times that an employee could be advanced up to 200 hours of sick leave. As the bulletin is a national direction, he stated that local management and a local section of the bargaining agent cannot agree on an arrangement that would conflict with the interpretation set out in the bulletin. To his knowledge, the only event that would change the interpretation would be a grievance decision. He was unaware of any grievance decisions related to sick leave advances from the signing of the collective agreement in 2006 until January 2014. Furthermore, to his knowledge, the bulletin, issued in November 2006, was the only interpretation bulletin concerning sick leave advances issued until January 2014.

20        During bargaining on July 15, 2010, the employer proposed the following modifications indicated in bold to clause 31.04 (Exhibit U-4):

ARTICLE 31

SICK LEAVE WITH PAY

Modify clause 31.04 – Granting of Sick Leave – and add paragraphs (a) through (c):

When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 31.02, sick leave may, at the discretion of the Employer, be granted to the employee for a period of up to two hundred (200) hours, subject to the deduction of such advanced leave from any sick leave credits subsequently earned, subject to:

(a) the deduction of such advanced leave from any sick leave credits subsequently earned;

(b) provided all previous advances have been paid back; and

(c) he or she satisfies the Employer, [sic] he or she is unable to perform his or her duties because of illness or injury in such manner and at such time as may be determined by the Employer.

21        Mr. Grabowsky said this was the first time the bargaining agent had seen such a proposal and that it reversed the previous language by substituting “may” for “will”. Furthermore, the proposed paragraph (b) had never been discussed before, and the bargaining agent found paragraph (c) unusual as it was already in the collective agreement, at clause 31.02.

22        According to Mr. Grabowsky, the employer’s proposal was not the subject of much discussion as it was presented toward the end of bargaining. The bargaining agent refused the proposal, and it was withdrawn on July 22, 2013, the date on which a tentative agreement was reached. Thus, the language of clause 31.04 remained unchanged from the previous agreement. The employer did not provide reasons for withdrawing the proposal and did not state that clause 31.04 would be interpreted differently.

23        Mr. Grabowsky referred to an email dated August 3, 2012, and addressed to John Kearney, director, labour relations, CSC, by the Treasury Board Secretariat (TBS) compensation and labour relations interpretations team (Exhibit U-5), which set out the employer’s interpretation of sick leave advances under the collective agreement. The email was sent in response to Mr. Kearney’s request for an interpretation dated May 31, 2012. Mr. Grabowsky said that Mr. Kearney shared that interpretation with him at a bilateral meeting sometime after July 22, 2013. He stated that Mr. Kearney told him that he had asked for an interpretation in 2009, to which Mr. Grabowsky responded, “Why now?”

24        Mr. Grabowsky first learned during a meeting in October 2013 that the employer would implement its new interpretation. Attending the meeting were the CSC Commissioner, Don Head; Alain Tousignant, the director general, labour relations, at CSC national headquarters; Michel Bouchard, a bargaining agent representative; and Mr. Grabowsky. Mr. Grabowsky said that they indicated their concerns with the interpretation and that Mr. Tousignant asked them to put them in writing. Mr. Bouchard did so and later also sent them to the Treasury Board. The bargaining agent never received a response and was told that the employer’s interpretation would be implemented.

25        Concerning Ms. Howard’s January 29, 2014, letter, Mr. Grabowsky said that the employer was implementing an interpretation that differed from what had been bargained and that the bargaining agent had never before seen that an employee had to reduce sick leave advances to zero before accessing the advance bank. Similarly, the requirement for a medical certificate had not been discussed.

26        The email dated February 14, 2014, informing employees of the impending changes, contained the following paragraphs:

...

4. Employees are required to re-pay any advanced leave hours, before another period of advanced sick leave will be granted. If an employee has not re-paid the advance, they will be required to request another form of leave to cover the period of illness or injury.

...

7. The advancement of sick leave under Article 31.04 is distinct from the regular granting of sick leave under Article 31.03, with respect to satisfying the employer of the employee’s inability to perform their duties.

8. Management may request a medical certificate from the employee before the advance is granted. This request for a medical certificate shall help substantiate that the illness or injury will require an advancement of sick leave, as well as assist the Employee and Management in determining the appropriate number of hours to advance – to ensure it is sufficient enough to cover the employee’s absence from work.

...

[Sic throughout]

[Emphasis in the original]

27        Mr. Grabowsky stated that paragraph 4 put into effect what the bargaining agent believed had not been negotiated. To his knowledge, the statement in paragraph 7 that advancing sick leave is distinct from regularly granting sick leave was never discussed at the bargaining table; nor was the statement in paragraph 8 that the employer may request that an employee present a medical certificate before granting an advance. Mr. Grabowsky said that the email set off a wave of calls and emails from employees to him and to the bargaining agent’s regional presidents inquiring as to what was going on. He stated that before April 1, 2014, no employees were refused sick leave advances if they were within the 200-hour period. The only refusals occurred when employees had exceeded 200 hours. He said that he would have been aware of any refusals as they would have been discussed with regional presidents at the bargaining agent’s national executive level.

28        Mr. Grabowsky described the bargaining agent’s ratification process after a tentative agreement had been reached on July 22, 2013. In each region, the regional president and the local president would attend the meetings of the local general assembly and would review the tentative agreement, article by article. Mr. Grabowsky said that at the local ratification meetings he attended, article 31 of the collective agreement was not discussed.

29        In cross-examination, Mr. Grabowsky said that a collective agreement cannot be amended through a labour relations bulletin but that its application can be clarified by one. When asked if local management had latitude applying a bulletin that would lead to variance in that application, Mr. Grabowsky replied that if a bulletin were applied differently in one region, it would be addressed in the bargaining agent’s regional meetings. Asked whether it was possible that not every issue would be raised, Mr. Grabowsky explained that all bargaining agent local presidents in a region attend meetings with the regional executive 8 times per year. The regional executive meets 8 to 10 times per year, and bulletins such as that in question are discussed at the regional meetings.

30        Mr. Grabowsky acknowledged that it was possible that an employee could agree with a correctional manager to take personal leave instead of sick leave and that it would not be brought to the bargaining agent’s attention if the matter were between the manager and the employee.

31        Mr. Grabowsky was questioned about his testimony that at the October 2013 meeting, Mr. Kearney said that he had requested an interpretation in 2009. When it was put to Mr. Grabowsky that Mr. Kearney would testify that he had not consulted the TBS, Mr. Grabowsky said that that was not his recollection. He stated that when Mr. Kearney told him that he had sought a clarification, he did not mention the TBS, but he assumed Mr. Kearney had done so. It was also put to Mr. Grabowsky that Mr. Kearney would testify that he did not consult the TBS for the 2006 meeting. Mr. Grabowsky stated that he did not have a conversation with Mr. Kearney about him going to the TBS for the 2006 meeting.

32        Asked whether an employee could choose not to use a sick leave advance, Mr. Grabowsky said that he or she could take annual leave, time in lieu, or compensatory time. He said that in work-related injury cases, since it takes the CSC 39 days to process one, the manager would grant such types of leave to maintain the employee’s pay while he or she had a negative sick leave balance.

33        It was put to Mr. Grabowsky that before April 1, 2014, if an employee was asked to repay sick leave and did not raise it with the bargaining agent, it did not mean that such an event did not occur. Mr. Grabowsky replied that such a situation was hypothetically possible but that it would mean that the manager had misled or misinformed the employee. He added that bulletin 2006-08 would have been explained to the employees and that they would have brought such a situation to the attention of the bargaining agent.

34        According to Mr. Grabowsky, before 2006, it was not the CSC’s practice to require an employee with a negative sick leave balance to repay any advance. Even when granting advances was in the warden’s discretion, employees were never told they would not be granted further advances until their balances were zero. During that period, Mr. Grabowsky never received a complaint about the application of the policy.

35        In re-examination, Mr. Grabowsky said that since 2009, correctional managers have had to input the leave and verify if the employee meets the criteria. The CSC carries out audits regionally and nationally. He also stated that since the collective agreement was signed on November 5, 2013, in work-related injury cases, employees have been able to take time in lieu while awaiting workers’ compensation approval.

2. Michel Bouchard

36        From 2001 to 2011, Mr. Bouchard was an advisor for the bargaining agent’s Ontario region. Since 2011, he has been a Confédération des syndicats nationaux (CSN) coordinator. As such, he interacts with the advisors for each of the bargaining agent’s regions, works with the national executive, and is a spokesperson at the bargaining table. As a regional bargaining agent advisor, he dealt with the regional executive (composed of local presidents), acted as a representative before several administrative tribunals, and met with the local bargaining agents’ grievance committees. In the CSC’s larger institutions, he attended monthly meetings of the grievance committees with management. He participated in most of the bargaining sessions from 2002 to 2006 and in March 2011, became the bargaining agent spokesperson at the bargaining table. From 2010 to 2013, he was the bargaining agent spokesperson for most of the bargaining.

37        Mr. Bouchard stated he was well aware of the disagreement with respect to the interpretation of how sick leave was advanced. Before 2006, granting sick leave was at the discretion of an institution’s warden. As to the rule concerning the number of times an employee could be advanced sick leave, Mr. Bouchard said that the only rule was that the employee could not exceed 25 days of advanced sick leave.

38        In reference to the bargaining agent’s bargaining proposal concerning clause 31.04 of the collective agreement made on April 10, 2002, Mr. Bouchard said that the bargaining agent sought to eliminate the employer’s arbitrariness in granting sick leave. During the week before the collective agreement was signed, the employer conceded the bargaining agent proposal without discussion. There was no discussion as to a limit on the number of occasions an employee could take sick leave.

39        Mr. Bouchard stated that from 2006 to 2013, he was not aware of any occasion on which an employee who had requested a sick leave advance and who had a negative balance had been denied because he or she had not reimbursed previously advanced sick leave. As a bargaining agent advisor who met four times annually with his colleagues to discuss various issues, he would have heard of such a problem.

40        Concerning bulletin 2006-08, Mr. Bouchard understood that it did not set a limit on the number of times that an employee could be advanced up to 200 hours of sick leave.

41        When asked how many times before 2014 the employer modified its interpretation of a collective agreement by means of a labour relations bulletin, Mr. Bouchard replied that it was very infrequent.

42        Mr. Bouchard was then asked about the employer’s proposed modifications to clause 31.04 made on July 15, 2010. He said there was little discussion of them. For the bargaining agent, the proposal that sick leave would be granted at the employer’s discretion was a return to the situation before 2006. Paragraph (a) repeated what was already in the clause, paragraph (b) was what the employer had applied since April 1, 2014, and paragraph (c) was redundant. Mr. Bouchard said that he had reviewed his bargaining notes and that Karine Renoux, an employer negotiator, withdrew the employer’s proposal at 18:42 on July 22, 2013, without explanation. He said that the employer did not discuss that the clause would remain as it was but that the interpretation of it would change.

43        Mr. Bouchard first learned of the employer’s intention to implement a new interpretation of clause 31.04 from a discussion with Mr. Kearney at the beginning of October 2013. At the bargaining agent’s request, Mr. Tousignant provided a copy of the TBS’s interpretation on October 4, 2013.

44        The bargaining agent disagreed with the TBS’s interpretation, and when it was informed that the employer would proceed with the implementation, the bargaining agent sought a meeting with Mr. Head, the CSC commissioner, to identify its concerns. At the meeting in the fall of 2013, the bargaining agent told the commissioner that bargaining had just been completed and that in meetings with all its local sections, it had informed them that the employer had withdrawn its proposal for clause 31.04 and that there had been no change to that clause.

45        The commissioner requested that the bargaining agent document its concerns and stated that he would forward them to the Treasury Board. Mr. Bouchard did so in an email dated December 3, 2013, and addressed to Mr. Tousignant. Later the same day, Mr. Bouchard forwarded the email to René Houle, CSC director, labour relations, and to Ms. Howard (Exhibit U-9). The bargaining agent next heard from the employer through Ms. Howard’s January 29, 2014, letter.

46        Mr. Bouchard said that from 2006 to 2014, he was unaware of any case in which an employee was compelled to reimburse sick leave advances before being granted another advance. There were discussions concerning the attendance policy and the requirement to present a medical certificate for each absence. There were differing interpretations of the medical certificates policy.

47        Mr. Bouchard stated that since April 1, 2014, approximately 50 individual grievances have been filed concerning the employer’s interpretation of clause 31.04, while before then, such grievances had been rare.

48        In cross-examination, Mr. Bouchard was referred to an information bulletin issued by the bargaining agent concerning the employer’s interpretation, to which was attached a grievance form drafted by the bargaining agent to be used by employees who were denied sick leave advances. Asked whether the bargaining agent encouraged its members to file grievances, Mr. Bouchard replied that the bulletin explained the employer’s interpretation and informed members of their rights. The bargaining agent provided its members with a draft grievance because not all members know how to draft them. Mr. Bouchard referred to the unfair labour practice complaint, which stated that employees would file individual grievances each time the employer refused sick leave advances according to its new interpretation. The bargaining agent was merely protecting its members’ rights by providing the appropriate tools.

49        Mr. Bouchard reiterated that from 2006 to 2014, no cases concerning sick leave advances were brought to his attention. From 2001 to 2011, while he was the bargaining agent advisor for the bargaining agent’s Ontario region, bargaining agent advisors held meetings on collective agreement interpretation problems. During that period, he did not hear of a sick leave advance case. Asked whether his information was based only on the Ontario region, Mr. Bouchard said that such discussions would generally take place at the national CSN level. There were no such cases at the national executive up to 2011.

50        In re-examination, Mr. Bouchard stated that it was up to each individual member to decide whether to file a grievance.

3. Steven Marcouiller

51        Steven Marcouiller is a correctional officer classified CX-01 at the Donnaconna Institution in Donnaconna, Quebec, who has been employed by the CSC since July 2010 and who is a bargaining agent member. In April 2013, he had a positive sick leave balance of 40 hours. He had a knee operation, following which he took 200 hours of sick leave, which left him with negative 160 hours. At the time, his manager took the necessary steps to grant the sick leave advance.

52        In April 2014, Mr. Marcouiller sustained an on-duty injury. At the time, he had a negative 20-hour sick leave balance. His manager told him to go to the hospital, and he would make the necessary arrangements.

53        On April 26, 2014, his bargaining agent representative informed him that he would not be entitled to benefits until the workers’ compensation authorities approved his claim, except for 14 days, to be paid by the employer. A few minutes later, his manager called him to tell him the same thing. He was told he would be given a record of employment and that he should apply for employment insurance. He did so but never received employment insurance benefits.

54        He was unpaid for two months until he began receiving workers’ compensation benefits on June 23, 2014. He then filed a grievance against the employer’s refusal to advance sick leave (Exhibit U-11).

55        Mr. Marcouiller stated that before 2014, at Donnaconna, management would authorize sick leave advances for up to 200 hours with no limit on the number of times it was requested, as long as the 200-hour limit was not exceeded.

56        Mr. Marcouiller said he attended the collective agreement ratification meeting in 2013. The bargaining agent representatives discussed the sick leave provisions and told the members that they were unchanged.

57        In cross-examination, Mr. Marcouiller said that the employer retroactively paid him for the two months that he had been without salary or benefits.

4. Renée Randall

58        Renée Randall is a correctional officer classified CX-01 who has been employed by the CSC for some six years and who is a bargaining agent member. Until April 28, 2014, Ms. Randall was employed at the Grand Cache Institution in Grande Cache, Alberta. Since then, she has worked at the Dorchester Institution in Dorchester, New Brunswick.

59        Ms. Randall testified that on May 28, 2014, she sustained an off-duty accident and was off work for two weeks, which was supported by a medical certificate (Exhibit U-12). As of April 2014, her sick leave bank was at negative 17.5 hours. She contacted her manager to request sick leave, which was granted. Three weeks later, as a result of a conversation with a colleague, she checked the employer’s scheduling and deployment system (SDS) and learned that she had been granted leave without pay, although she had not been informed of it by the employer. The salary clawback occurred in September 2014. She decided to file a grievance to try to be reimbursed.

60        During her career, Ms. Randall once had a negative sick leave balance of four hours. She said that she booked sick leave while having a negative balance, and it was granted. She stated that before April 2014, employees could take advanced sick leave, up to the limit of 200 hours, after which the warden’s approval was required. She said that having a positive balance was not a requirement to be granted additional sick leave.

61        Ms. Randall attended the bargaining agent’s collective agreement ratification meeting in the fall of 2013 and did not recall having been informed of any change to the sick leave provisions. She learned of the change only in June 2014.

B. For the employer

1. Karine Renoux

62        Ms. Renoux has been employed with the federal public service since 2001. She worked in labour relations at the Canada Revenue Agency and since 2008 has worked in several labour relations positions at the Treasury Board. She has been a negotiator since September 2012. Her main duties are collective bargaining and helping colleagues interpret collective agreements. She has been involved in negotiations with the bargaining agent since 2012.

63        For the employer’s first meeting with the bargaining agent in December 2012, Ms. Renoux prepared the employer’s documents but did not attend the meeting, at which a formal comprehensive offer was presented to the bargaining agent. That offer included the sick leave provision in which “will” was changed to “may”. Her first bargaining session with the bargaining agent was in June 2013, during which the focus was on economic increases. Sick leave was not discussed at that session.

64        The next bargaining session was on July 22, 2013, which resulted in a settlement. The discussions centred on monetary items. There was no discussion of the sick leave clause or of the employer’s proposal or what it meant. The proposal was withdrawn at the time indicated by Mr. Bouchard in his testimony. Ms. Renoux stated that the employer’s original proposal originated with the CSC’s concern about the number of employees who had negative sick leave balances and the amount of sick leave being granted to those having negative balances. CSC management told her that it wanted more rigour in granting sick leave advances. She was informed that some employees had substantially more than negative 200 hours of sick leave and that some had over 1000 hours.

65        Ms. Renoux said that she and her colleagues examined clause 31.04 while in caucus and concluded that nothing would prevent the CSC from applying the clause more strictly within the existing language. Accordingly, they decided that the employer’s proposal could be withdrawn.

66        Ms. Renoux said that the employer’s collective agreement with the bargaining agent differs from other collective agreements in the federal public service in that it contains the word “will” in clause 31.04, while the other agreements contain the word “may” in similar provisions. She said that the application to employees covered under the other collective agreements became relevant in her conversations with her colleagues in that the only difference from a management perspective was the discretion to grant sick leave advances up to a certain limit.

67        Ms. Renoux stated that the Treasury Board’s position concerning the application of clause 31.04 is that it should not be looked at in isolation but within the sick leave regime within which employees accumulate 15 sick leave days per year and carry over unused days. That is meant to cover an illness, including of a longer term. Concerning advancing sick leave, certain managers allowed employees to be in a negative situation, while that should occur only in exceptional circumstances. Employees should manage their sick leave so that they have sufficient days in their banks.

68        As an example of exceptional circumstances, Ms. Renoux said that the employer is aware that with respect to injury-on-duty leave, it takes some time until workers’ compensation authorities make a final determination. In such instances, employees are granted sick leave advances.

69        In cross-examination, while Ms. Renoux acknowledged that during bargaining in June and July 2013, the employer never mentioned that it could adopt the April 1, 2014, interpretation without changing the text of the provision, she maintained that it had always been the employer’s interpretation, even when the language had changed from “may” to “will”. She stated that this was consistent with the employer’s interpretation of August 3, 2012 (Exhibit U-5), which was not shared with the bargaining agent at the bargaining table. To her knowledge, no other document of a similar nature was shared with the bargaining agent during bargaining. When asked how the CSC applied the employer’s interpretation, Ms. Renoux replied that she did not know and that she had no reason to assume that it was different from how it was applied in other parts of the federal public service.

70        Ms. Renoux was referred to the following extract of bulletin 2006-08, under the section entitled “Advancing Sick Leave”:

... the provision to advance sick leave credits is not intended to automatically advance 200 hours but to advance the leave necessary to cover absences due to illness for one or a series of periods up to a maximum of 200 hours.

...

71        According to Ms. Renoux, the bulletin was issued by the CSC, and it was not the Treasury Board’s position. As she was not working at the Treasury Board at the time, she was unaware whether the bulletin had been shared with the Treasury Board.

72        Concerning the withdrawal of the employer’s proposal on July 22, 2013, Ms. Renoux reiterated that that decision was made during a caucus and that it was withdrawn without an explanation. She had been told that sick leave entitlements were being granted beyond those allowed by the collective agreement.

73        It was put to Ms. Renoux that she had testified that sick leave should be advanced only in exceptional situations, yet the collective agreement does not refer to long-term disability benefits or medical certificates in relation to sick leave advances. She replied that if management can request a medical certificate for paid sick leave, at a bare minimum, the requirements for granting sick leave advances should be the same as those for paid sick leave.

74        While acknowledging that in Mr. Marcouiller’s situation, he merited being granted sick leave advances, Ms. Renoux agreed that under the employer’s April 1, 2014, interpretation, he would not have been entitled to an advance.

75        In re-examination, Ms. Renoux said that had Mr. Marcouiller had a positive balance, he would have been granted paid sick leave.

76        According to Ms. Renoux, many employees do not require sick leave advances since they seek employment insurance. For employees with a negative balance, in cases of injury-on-duty leave, the CSC allows them to use other leave to cover the period in question. Typically, employees should go on sick leave without pay when they have a negative balance.

2. John Kearney

77        Mr. Kearney is the CSC’s director of corporate labour relations. He has been employed by the CSC since 2006 and has a total of 25 years of labour relations experience in the federal public service. His duties and responsibilities include supporting the collective bargaining process, supporting and advising collective agreement interpretations, labour relations policy and development, applying the SDS in conformity with collective agreement provisions, participating in national bargaining committees with the bargaining agent, and acting as a member of the management bargaining team.

78        Mr. Kearney drafted the January 29, 2014, letter signed by Ms. Howard. He prepared a briefing note analyzing the collective agreement language and the options and risks associated with the employer’s direction. He said that the CSC made the January 2014 decision because the volume of negative sick leave banks created risks for employees, especially those who had more than 200 hours in negative sick leave balances, due to the time required to reimburse it. An employee with a negative balance of 200 hours would require 1.7 years to reimburse it. During such a long period, the employee would not have sick leave available to him or her while awaiting workers’ compensation benefits or as a bridge to long-term disability.

79        Mr. Kearney said that the employer initiated analyses and discussions with regional directors and wardens as well as correctional managers involved in scheduling and deployment in the workplace early in 2012. It was found that the sick leave-advance provisions in the collective agreement were being applied inconsistently. Some employees received advances of greater than 200 hours, which created risks to them as the requirement to reimburse sick leave sometimes put a burden on them.

80        One of the CSC’s concerns was the SDS’s functionality, as there was no interface between it and the CSC’s Human Resources Management System (HRMS). While a manager might enter an employee’s absence due to illness in the SDS, the employee would still be required to complete HRMS leave forms. Mr. Kearney stated that sick leave was the primary cause for overtime at the CSC.

81        Mr. Kearney said that he requested an interpretation of the sick leave-advance provision from the Treasury Board in May 2012 to clarify the processes as there was a concern about training the managers who granted sick leave and managing the situations in which employees had negative sick leave balances of more than 200 hours. There was also a need to reconcile the SDS and HRMS systems. He said that the August 2012 Treasury Board interpretation was shared with the bargaining agent in October 2013 at a bilateral meeting, which he attended with Ms. Howard and at which Mr. Grabowsky and Mr. Bouchard were present. They informed the bargaining agent that the interpretation made it clear that some of the managers’ granting and approval processes were inconsistent with the language of the collective agreement.

82        When asked why the interpretation was not shared with the bargaining agent earlier, Mr. Kearney said that in 2012, they were in a bargaining process and had made a proposal to clarify the sick leave-advance provision. If the employer proposal had been accepted at bargaining, it would have provided the opportunity to implement a clarification of how to apply the provision. Mr. Kearney said that he had not requested an interpretation of the sick leave-advance provisions in 2009.

83        When asked about consultations with the bargaining agent before the January 29, 2014, letter, Mr. Kearney said that after the October 2013 bilateral meeting, the CSC commissioner, Mr. Tousignant, and Mr. Grabowsky had a discussion. Then a meeting was held in February 2014 before the draft of the April 3, 2014, bulletin was issued, which Mr. Kearney, Ms. Howard, Mr. Grabowsky, and Mr. Bouchard attended.

84        Mr. Kearney stated that before the bulletin was issued, the collective agreement language was reviewed to see if it supported the TBS interpretation and that there were discussions of how the employer could implement a change to ensure that more sick leave would not be granted before any advanced sick leave was reimbursed. Concerning applying the provision at issue, Mr. Kearney gave an example of a male employee with a positive sick leave balance of one day. If he called in sick, he would be granted one day of sick leave. If he called in sick the next day, he would be granted an advance if his manager was satisfied that the employee was sick. If the employee called in sick on the third day, the employer would treat it as a continuous single event. The employee would complete a leave form.

85        Mr. Kearney said that the April 1, 2014, effective date of the employer’s interpretation was selected to provide reasonable notice of the change to employees and to allow them to plan if they were at the point of exhausting their sick leave.

86        Mr. Kearney stated that the CSC produces bulletins when there are changes in policy or changes to the collective agreement and departmental protocols that clarify it. Between 2006 and 2014, the CSC published approximately 30 bulletins, some of which were amended several times. Examples included bulletins concerning meal allowances, shift exchanges, hours of work, and scheduling guidelines.

87        According to Mr. Kearney, the CSC issued bulletin 2006-08 without consulting the Treasury Board. He testified that it resulted from a six-year bargaining process and that the CSC had worked on the interpretation with the bargaining agent. The bulletin was intended to clarify the collective agreement, and it attempted to address the issue of employees being granted sick leave advances of greater than 200 hours.

88        In cross-examination, Mr. Kearney was asked whether clause 31.04 of the collective agreement was interpreted differently across the country. He replied that the CSC always took the position that when ill, an employee had to have insufficient or no sick leave credits to be granted an advance. The employer had the obligation to grant an advance of a period of up to 200 hours of sick leave, subject to the automatic reimbursement of the advance through sick leave credits earned later.

89        Despite the employer’s position, Mr. Kearney acknowledged that clause 31.04 was inconsistently applied across the country. Some employees were granted advances of more than 200 hours, some in a single period and others in multiple periods. Mr. Kearney said that some of the inconsistency arose out of residual understandings before 2006, in which management granted discretionary amounts of leave to carry over employees with on-duty injuries until workers’ compensation benefits were approved. Some inconsistencies were also due to the SDS’s administrative process for managing negative leave banking and to the correctional managers responsible for that process.

90        When asked whether before April 1, 2014, sick leave advances were refused because the employees requesting it had not reimbursed previous advances, Mr. Kearney said he believed that to be the case because otherwise, there would be a larger number of negative sick leave banks. He made that assumption because the majority of sick leave usage at the CSC is of one to two days and the others being for longer periods. However, he was unable to affirm that the April 1, 2014, interpretation was applied before that date, as the data would not indicate whether an employee had used another type of leave. Thus, the data would not show whether in such cases the employee was refused a subsequent advance because the previous advance had not been repaid.

91        When asked whether he agreed that the majority of correctional managers granted sick leave advances before previous advances were reimbursed, Mr. Kearney replied that many of them were applying the previous understanding that was contrary to the collective agreement and that the others were poor administrators. Before 2006, when the clause language was “may”, wardens granted more than one advance to bridge employees through to workers’ compensation benefits. After bulletin 2006-08 was issued and the language was changed to “will”, while Mr. Kearney believed the same thing was being done, there was no data to indicate the locations where that was taking place.

92        When asked whether before April 1, 2014, any correctional managers confirmed to him that they were consistently applying the employer’s interpretation, Mr. Kearney replied that in his discussions with them during cross-country training and consultations on the SDS implementation in 2010-2011 and 2012-2013, the correctional managers said that a variety of practices were being used at different sites. Nobody told him he or she was consistently applying the employer’s interpretation.

93        Mr. Kearney stated that before the 2006-2014 period, if employees were injured on duty, they applied for workers’ compensation benefits and in many cases chose to take vacation leave. When they were approved for workers’ compensation benefits, their vacation leave was reimbursed. Mr. Kearney assumed that in such cases, the employee would not have sought a sick leave advance. It was possible that either the employee chose vacation leave or the manager refused to grant an advance.

94        With respect to whether there was any documentation concerning a denial of an advance, Mr. Kearney said that if an employee disagreed with the manager, presumably he or she would have filed a grievance. There was no such grievance filed from 2006 to 2014.

95        Concerning Ms. Randall, Mr. Kearney said that an employee has an obligation to return to work and complete a leave of absence form for HRMS and to submit it to the manager for approval. While the manager might have verbally informed the employee that the sick leave was approved, the process is activated by the employee’s formal request on a leave form. As for the issue of overpayment, Mr. Kearney stated that when an employee elects to take leave without pay for an illness, the manager is supposed to inform the employee that there will be a pay adjustment recovery and must advise the compensation unit. The employee is notified by the compensation unit. Thus, Ms. Randall should have received two notices of adjustment to her average pay.

96        Mr. Kearney said that recovering pay due to a leave of absence without pay for illness is not an indicator that a sick leave advance was granted or refused, because an employee made a personal choice to take such leave. If a great deal of recovery from employees occurs, it is not an indication that managers are applying the employer’s interpretation, because taking leave without pay is an employee’s choice. There is no tracking as to whether the employer’s interpretation was applied.

97        Mr. Kearney described the functions of a correctional manager, scheduling and deployment (CMSD). When an employee calls in sick, the correctional manager or CMSD, depending who is on duty, accesses the employee’s schedule for that day to register the employee’s absence. That person indicates the leave that the employee chooses to use, whether vacation leave, sick leave, family leave, or leave without pay. Upon the employee’s return to work, the employee must complete an HRMS form. The CMSDs have access to leave usage on SDS and HRMS. The data is downloaded every night for reconciliation.

98        When asked about the purpose of the employer’s labour relations bulletins, Mr. Kearney said that they were to clarify the application of the collective agreement but not to amend it. They also are intended to ensure compliance with Treasury Board policy and legislation and are used as a communications vehicle to facilitate management’s consistent application and compliance. He acknowledged that the bulletins do not always successfully achieve compliance. Mr. Kearney expects managers to read, comply with, and apply the bulletins.

99        Concerning bulletin 2006-08, Mr. Kearney gave as an example of the phrase “one or a series of periods” that if an employee was advanced 100 hours, he or she would have to reimburse 100 hours. The purpose of this bulletin was to address the issue of advances in excess of 200 hours. The bulletin was not amended until 2014. In 2006, employees on sick leave could be off work for 200 hours and would have to make their own calculations. Mr. Kearney agreed that the managers should also track employees’ sick leave hours. After 2009, employees had access to the system from the workplace.

100        Mr. Kearney was referred to item 7 of Ms. Howard’s February 14, 2014, email (Exhibit U-7), which reads as follows: “The advancement of sick leave under Article 31.04 is distinct from the regular granting of sick leave under Article 31.03, with respect to satisfying the employer of the employee’s inability to perform their duties.” Mr. Kearney stated that under clause 31.03, the employee self-declares reasons for sick leave.

101        The reason that management might require a medical certificate is that the employee who self-assesses his or her illness cannot self-assess at what point in the future he or she will be able to return to work. The requirement for a medical certificate addresses two issues: first, when an employee self-declares an illness and the employer observes a pattern, questions could be asked of the employee. Second, it allows management to obtain the assessment of a medical professional with respect to the employee’s return-to-work date. If an employee has insufficient or no sick leave credits, the employer may require information relating to the length of the absence.

102        Mr. Kearney stated that while the employer may not require a medical certificate for an employee’s illness, it may require it for the length of the sick leave. He agreed that if an employee has a positive sick leave balance, the employer would request one only if it observed a pattern.

103        Concerning the questions and answers prepared by the employer and dated May 15, 2014 (Exhibit E-2), Mr. Kearney said that question 4, concerning a contiguous period of leave, arose out of discussions with the bargaining agent to manage situations in which employees are unaware of the seriousness of an illness.

104        Mr. Kearney stated that the collective agreement recognizes that there will always be employees with negative balances, which did not cause him concern. Rather, his concern was with granting sick leave advances to an employee who already has a negative balance.

III. Summary of the arguments

A. For the bargaining agent

1. The policy grievance

105        The bargaining agent submitted that the issue in this matter is the interpretation of the collective agreement, which requires a determination of the parties’ intention; namely, whether an employee is entitled to a single sick leave absence for a continuous period of 200 hours or whether the employee may obtain the number of sick leave absences required, to a maximum of 200 hours. The bargaining agent acknowledged that it bore the burden of proving on a balance of probabilities that the employer violated the collective agreement.

106        To discern the parties’ intention, they are assumed to have intended what they expressed in the language of the agreement. The rules of interpreting collective agreements are the same as those for interpreting private contracts (see Brown & Beatty, Canadian Labour Arbitration, 4^th edition, Canada Law Book, at para. 4:2100 (“Brown & Beatty”)).

107        The bargaining agent advanced that I must first determine if the language of a clause is clear or ambiguous (see J.-L. Baudouin and P.-G. Jobin, Les Obligations, 7^th edition, Éditions Yvon Blais, at para. 410). The fact that the employer issued an interpretation bulletin does not mean that the clause at issue is ambiguous. If I determine that the language of the clause is clear, then I must interpret it. If I find that the clause is ambiguous, then I must apply the rules of interpretation and extrinsic evidence; see Goldman v. R., [1980] 1 S.C.R. 976.

108        The bargaining agent first advanced that clause 31.04 is clear. It submitted that there is no disparity between the French and English versions of clause 31.04. It argued that the meaning of the clause is clear; namely, each time an employee requests sick leave, he or she is entitled to an advance of leave to a maximum of 200 hours. The normal and ordinary meaning of the clause does not require that the employee have a positive sick leave balance before being granted another advance. In support of this argument, the bargaining agent cited Legge v. Treasury Board (Department of Fisheries and Oceans), 2014 PSLRB 47.

109        The bargaining agent submitted that the meaning of the word “period” in clause 31.04 is not a length of time that is necessarily continuous; it may be continuous or non-continuous. The bargaining agent referred to the following dictionary definitions: Larousse online dictionary: “espace de temps plus ou moins long que l’on envisage du point de vue de sa durée, soit du point de vue de sa situation dans un espace de temps plus long”; Le Nouveau Petit Robert dictionary: “espace de temps plus ou moins long”; Le Petit Druide des Synonymes: “espace de temps - durée, laps de temps, plage (horaire), planche (horaire), temps”; and Oxford Dictionaries Online: “a length or portion of time”.

110        In support of its argument that the collective agreement must be interpreted as a whole, the bargaining agent cited Parsons v. Treasury Board (National Defence), 2004 PSSRB 160. It submitted that in the French version of clause 31.04, the phrase “période maximale de deux cents (200) heures” does not apply to the number of sick leaves taken. The word “maximale” refers to the length of the period. Furthermore, in the phrase “la déduction de ce congé anticipé”, “ce congé” is in the singular. The clause must have meaning within the context of article 31 as a whole and in that context must be read in the singular.

111        The bargaining agent submitted that clause 31.04 addresses two distinct situations: when an employee has insufficient credits to cover sick leave with pay, or when the employee has no credits. It does not state that the employee must reimburse advanced sick leave to be entitled to more of it.

112        The bargaining agent next argued that if I determined that clause 31.04 was ambiguous, in terms of extrinsic evidence, I must first examine past practice; see Chapman v. Treasury Board (Department of National Defence), 2013 PSLRB 73, which reproduces the test for establishing past practice set out as follows by the Federal Court in Attorney General of Canada v. Lamothe et al., 2008 FC 411 at para. 40:

[40] ... The evidence must show a practice over several years, and must meet the following requirements:

(a) be repeated over several years;

(b) be accepted by all of the parties involved; and

(c) not be ambiguous or disputed.

113        The bargaining agent stated that it did not raise an argument based on estoppel. It referred to bulletin 2006-08 and submitted that both it and the employer based their interpretations on it from 2006 to 2014. Based on that shared interpretation, employees were granted one or more periods of sick leave without being required to have a zero or positive sick leave balance. The evidence showed that this interpretation was not formally challenged and that the bulletin was not amended. In support of its argument, the bargaining agent cited Phillips v. Treasury Board (Transport Canada), PSSRB File No. 166-02-20099 (19910425), [1991] C.P.S.S.R.B. No. 82 (QL).

114        The bargaining agent advanced that another form of extrinsic evidence to be used as an aid in interpreting collective agreements is negotiating history; see Brown & Beatty, at para. 3:4420, and Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada, 2011 CanLII 89183 (CA LA). The bargaining agent pointed out that the employer withdrew its proposal to amend clause 31.04 without explanation on July 22, 2013, the last day of bargaining.

115        As examples of cases in which employees were granted sick leave with pay more than once without being required to reimburse a negative balance, the bargaining agent cited the following: Kirby v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 92, and Juba v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 71. The bargaining agent submitted that those decisions are indirect evidence of the parties’ intention that employees with a zero or negative sick leave balance need not reimburse outstanding sick leave before being granted advances.

116        In concluding its argument on the policy grievance, the bargaining agent submitted that clause 31.04 was clear and that the employer had violated it. As a subsidiary argument, the bargaining agent submitted that if I found clause 31.04 ambiguous, then the extrinsic evidence demonstrated that the parties’ intention never reflected the employer’s interpretation. As corrective measures, the bargaining agent requested an order that the employer apply the interpretation that prevailed before April 1, 2014, and that affected employees be compensated, with interest. During the course of the employer’s argument, the bargaining agent withdrew its request that interest be awarded.

2. The unfair labour practice complaint

117        For the bargaining agent, the question at issue is whether the employer violated s. 107 of the PSLRA by unilaterally modifying the terms and conditions of employment of its members when notice to bargain collectively was given. The bargaining agent stated that it had to prove that there was a term and condition of employment that was in force and that it was modified by the employer. The bargaining agent submitted that the former interpretation was in itself a condition of employment that was in force on February 17, 2014, the date on which notice to bargain was given. The employer’s interpretation came into force only on April 1, 2014. The bargaining agent cited Canadian Federal Pilots Association v. Treasury Board, 2006 PSLRB 86 at para. 80, as to the application of s. 107 and BHP Billiton Diamonds Inc., 2006 CIRB 353, concerning the corresponding section of the Canada Labour Code (R.S.C. 1985, c. L-2).

118        In the bargaining agent’s submission, the crucial date to be considered in determining whether the employer violated s. 107 is April 1, 2014, the date on which the employer’s new policy came into force, and not the date on which the policy was announced. In support of its argument that the employer modified a term and condition of employment during a bargaining freeze, the bargaining agent cited Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46.

119        As a remedy, the bargaining agent sought a declaration that the employer modified a term and condition of employment that was in force during a bargaining freeze and an order that the employer reinstate the former interpretation of clause 31.04 until the conclusion of a new collective agreement. The bargaining agent stated that it does not allege that the employer engaged in bad-faith bargaining.

B. For the employer

1. The policy grievance

120        The employer submitted that s. 220(1) of the PSLRA confines the policy grievance to the interpretation or application of the collective agreement. In this matter, the pith and substance of the grievance is the interpretation of clause 31.04 of the collective agreement. As such, the onus was on the bargaining agent to prove that the employer violated the collective agreement; see Canadian Association of Professional Employees v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 100.

121        The employer advanced that its decision to clarify the inconsistency of how clause 31.04 was applied did not constitute a violation of the collective agreement. The language as written provides for employees to obtain one paid sick leave advance of 200 hours subject to later reimbursement through earned sick leave. The wording is clear and consistent, and on a plain reading, there is no need to consider extrinsic evidence. However, if I find the wording ambiguous, then extrinsic evidence, including past practice and negotiating history, may be used as aids to interpreting the collective agreement. In the employer’s submission, its position is consistent with the wording of the collective agreement and clarifies the application of clause 31.04. The meaning of that clause does not entitle employees to multiple sick leave advances to a maximum of 200 hours.

122        For the employer, the three main principles of collective agreement interpretation are the following: when searching for the parties’ intention, one must seek the ordinary meaning of the language; words must be read in their immediate context and in the context of the collective agreement as a whole; and a benefit that carries a monetary cost to the employer must be clearly and expressly granted under the collective agreement. In support of these principles, the employer cited the following decisions: Communications, Energy and Paperworkers Bargaining agent of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2002 NBCA 30; Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55, and Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112.

123        The employer submitted that to qualify under clause 31.04 of the collective agreement, an employee must have insufficient credits under clause 31.02. The language of clause 31.04 provides that if an employee has no or insufficient sick leave credits, sick leave will be granted to that employee for a period of up to 200 hours. The use of the word “will” does not allow for discretion in advancing sick leave. The employer stressed that granting sick leave is limited to “a period” of up to 200 hours and pointed to the French version of clause 31.04, which states “une période”. The employer argued that the language clearly means a single period of up to 200 hours, not multiple periods of up to 200 hours.

124        In support of that argument, the employer cited as an analogy the decision in Public Service Alliance of Canada and Barnes et al. v. Parks Canada Agency, 2012 PSLRB 98. In that decision, the adjudicator examined a settlement agreement under the terms of which the employer made a retroactive payment to former employees whose positions were reclassified retroactively after they had left the employer.

125        The adjudicator had to determine whether the employer complied with the settlement when it limited the calculation of years of service for the lump-sum payment to the time worked in the reclassified position occupied when a given employee was struck off strength. According to the bargaining agent, the years of service should also have included time worked in other reclassified positions previously occupied.

126        The settlement agreement stipulated that the lump sum was to be based on the employee’s years of service “in a position” reclassified from April 1999 to the date on which the employee left the employer. The bargaining agent argued that “in a position” meant in “all positions” worked. For the employer, it meant “in one position”; namely, the position that the employee occupied when leaving the employer. The adjudicator determined that the employer’s interpretation was more coherent within the context of the settlement agreement.

127        The employer argued that the language of clause 31.04 does not entitle an employee to additional sick leave advances before reimbursing any negative balance. It pointed to the words “such advanced leave” and “ce congé anticipé” as meaning just one leave is to be advanced and noted that the plural is not used in clause 31.04. The employer advanced that had it been the parties’ intention to allow multiple periods of paid sick leave, they would not have used the phrase “a period”. The bargaining agent’s position would lead to an absurdity, as it would be of no benefit to its members to have a negative balance.

128        The employer pointed to clause 30.03(a) of the collective agreement, dealing with maternity leave without pay, which provides that an employee “... shall, upon request, be granted maternity leave without pay for a period beginning ...”. The employer argued that according to the bargaining agent’s interpretation, a maternity leave would consist of multiple periods of leave.

129        The employer also pointed to clause 32.01 of the collective agreement, concerning education leave without pay, which provides in part as follows: “... an employee may be granted education leave without pay for varying periods of up to one (1) year ...”. In the employer’s submission, this wording indicates that when the parties intended to refer to multiple periods, they so specified.

130        The employer argued that clauses 31.02 and 31.04 are separate. It submitted that if the bargaining agent’s argument that clause 31.04 is an additional sick leave bank to be used in conjunction with clause 31.02 was correct, there would be no need for two separate clauses in the collective agreement.

131        The employer next dealt with the extrinsic evidence in the event I found an ambiguity in clause 31.04. It stated that bargaining history must be relevant and unequivocal and must indicate consensus or common intention between the parties as to the meaning of the language. It cannot represent the unilateral hope or expectation of one party. For general interpretation principles, the employer cited DHL Express (Canada) Ltd. v. CAW-Canada, Locals 4215, 144 & 4278 (2004), 124 L.A.C. (4^th) 271. In that decision, when considering the parties’ negotiating history, the arbitrator determined that the clause at issue had not been discussed at the bargaining table.

132        The employer submitted that the evidence of both parties was that between 2006 and 2014, their intention was to set up a sick leave scheme identical to that of the broader public service. Clause 31.04, which was language inherited in 2001 from previous agreements with the Public Service Alliance of Canada, was consistent with the sick leave regime in other federal public service collective agreements except that the word “may” in clause 31.04 was changed to “will” to manage the employer’s discretion to grant sick leave. The parties preserved the inherited scheme except for the word “will”. The employer submitted that as stated in the evidence of Ms. Renoux, no different bargain was struck for correctional services employees except for the word “will”.

133        Concerning past practice as an aid to interpretation, the employer pointed out that the bargaining agent did not rely on an estoppel argument, and it cited the following decisions for the principles of past practice: Lamothe, and Rook et al. v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 146.

134        The employer stated that the bargaining agent’s position that there was a consistent practice at the CSC of granting multiple periods of paid sick leave up to 200 hours relied on the testimony of its witnesses and bulletin 2006-08. The employer submitted that such evidence was anecdotal at best and that Mr. Grabowsky and Mr. Bouchard testified generally about their involvement with the bargaining agent and its members. The employer did acknowledge that Mr. Grabowsky testified to an example of an employee in Edmonton, Alberta, who had been granted multiple sick leaves up to 200 hours.

135        In the employer’s submission, the evidence of Mr. Marcouiller and Ms. Randall as to their experiences with the sick leave provisions has no bearing on the issue. They are not bargaining agent representatives and were in no position to testify on the practices within their institutions. Ms. Randall’s experience before April 28, 2014, was at Grande Cache Institution. Since after that date she has worked at Dorchester Institution, her testimony did not deal with how the sick leave provisions were applied at Dorchester before April 1, 2014. Mr. Marcouiller provided one example of the practice at the Donnaconna Institution. There was no evidence of the practice occurring elsewhere in the CSC, and neither names nor specific instances were adduced.

136        The employer pointed to Mr. Kearney’s testimony about the application of the sick leave provisions, which while it noted inconsistencies did not provide specific examples. However, he stated that there was evidence that the sick leave provisions were applied inconsistently across the country, including granting more than 200 hours of paid sick leave, which is contrary to the collective agreement.

137        When addressing bulletin 2006-08, of November 2006, the employer submitted that Mr. Kearney drafted it and that his uncontradicted evidence was that it was intended to address the CSC’s concern about granting more than 200 hours of sick leave advances, which was a problem before 2006. The CSC was attempting to address that problem regardless of whether a single or multiple periods of sick leave were involved. Given the limited information available at the time, management was unaware of the number or nature of inconsistencies in the sick leave system but was addressing the issue of granting leaves of greater than 200 hours. Mr. Kearney testified that he could not address what was happening at the local level, as leave requests were treated manually. In 2009, sick leave data became more available. However, as this data and his consultations continued to reveal inconsistencies in the application of the sick leave provisions of the collective agreement, Mr. Kearney decided to seek an interpretation from the Treasury Board.

138        The employer submitted that the bargaining agent failed to prove that a practice was accepted by the Treasury Board, which was a signatory to the collective agreement. Based on the evidence, the bargaining agent did not establish that there existed a past practice throughout Canada, and accordingly, there was no violation of the collective agreement. The employer argued that the April 3, 2014, bulletin did not introduce changes to the collective agreement or any new language or new interpretation. The employer sought to clarify the application of the sick leave provisions to address inconsistencies.

139        In terms of remedy, the employer submitted that the only remedy available in respect of the policy grievance is a declaration pursuant to s. 232 of the PSLRA. It argued that an adjudicator has no jurisdiction to award damages for policy grievances. Furthermore, the damages claimed by the bargaining agent are vague; it did not lead evidence of the number of employees affected or of how many had positive or negative sick leave balances. In this matter, the issue deals with employees being put into negative balances through sick leave advances. The nature of damages that could remedy such a situation is unclear.

2. The unfair labour practice complaint

140        The employer pointed out that s. 107 of the PSLRA stipulates that each term and condition of employment in force on the day notice to bargain is given continues in force during bargaining.

141        The employer submitted that in this matter, the only term and condition of employment protected by s. 107 is granting a single period of advanced sick leave subject to its eventual reimbursement from leave earned later.

142        The employer argued that granting multiple periods of paid sick leave up to 200 hours does not constitute a term and condition of employment. It was an exercise of discretion by some managers that was beyond the ambit of the collective agreement. As such, it is not captured by s. 107 of the PSLRA.

143        The employer submitted that a bargaining proposal to modify a collective agreement provision does not impede its ability to clarify and to manage within the confines of the collective agreement.

144        Assuming that granting multiple periods of sick leave to a maximum of 200 hours is a term and condition of employment, the employer submitted that under the management rights provisions in ss. 7 and 11.1 of the Financial Administration Act (R.S.C. 1985, c. F-11; FAA), the PSLRA, and the collective agreement, it had the authority to opt out of the practice as it was outside the collective agreement and was done to address inconsistencies. The employer opted out by giving clear and reasonable notice to the bargaining agent on January 29, 2014, before it gave the notice to bargain. The effect was to freeze the former practice until April 1, 2014, at which date the guidelines in the employer’s April 3, 2014, bulletin applied. On its management authority generally, the employer cited Professional Institute of the Public Service of Canada v. Treasury Board (Department of Human Resources and Skills Development), 2014 PSLRB 18 at para. 48.

145        Paragraph 7(1)(e) of the FAA reads as follows:

7 (1) The Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to

...

(e) human resources management in the federal public administration, including the determination of the terms and conditions of employment of persons employed in it ....

...

146        Section 11.1 of the FAA provides as follows:

11.1 (1) In the exercise of its human resources management responsibilities under paragraph 7(1)(e), the Treasury Board may

(a) determine the human resources requirements of the public service and provide for the allocation and effective utilization of human resources in the public service;

(b) provide for the classification of positions and persons employed in the public service;

(c) determine and regulate the pay to which persons employed in the public service are entitled for services rendered, the hours of work and leave of those persons and any related matters;

(d) determine and regulate the payments that may be made to persons employed in the public service by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment;

(e) subject to the Employment Equity Act, establish policies and programs with respect to the implementation of employment equity in the public service;

(f) establish policies or issue directives respecting the exercise of the powers granted by this Act to deputy heads in the core public administration and the reporting by those deputy heads in respect of the exercise of those powers;

(g) establish policies or issue directives respecting

(i) the manner in which deputy heads in the core public administration may deal with grievances under the Public Service Labour Relations Act to which they are a party, and the manner in which they may deal with them if the grievances are referred to adjudication under subsection 209(1) of that Act, and

(ii) the reporting by those deputy heads in respect of those grievances;

(h) establish policies or issue directives respecting the disclosure by persons employed in the public service of information concerning wrongdoing in the public service and the protection from reprisal of persons who disclose such information in accordance with those policies or directives;

(i) establish policies or issue directives respecting the prevention of harassment in the workplace and the resolution of disputes relating to such harassment; and

(j) provide for any other matters, including terms and conditions of employment not otherwise specifically provided for in this section, that it considers necessary for effective human resources management in the public service.

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

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

(b) do not include or extend to

(i) any power specifically conferred on the Public Service Commission under the Public Service Employment Act,

(ii) any process of human resources selection required to be used under the Public Service Employment Act or authorized to be used by the Public Service Commission under that Act, or

(iii) any power specifically conferred on the Commissioner of the Royal Canadian Mounted Police under paragraph 20.2(1)(l) of the Royal Canadian Mounted Police Act.

147        The employer submitted that errors applying the collective agreement are not protected by the bargaining freeze; consequently, neither is correcting such errors. In support of its argument that it had the right to address inconsistencies, the employer cited UCCO-SACC-CSN v. Treasury Board, 2004 PSSRB 38 at para 32.

148        Concerning the argument that it could have awaited the next bargaining round to change the interpretation of the sick leave provisions, the employer submitted that it has the authority to correct errors during the term of a collective agreement. Furthermore, the CSC had notice and direction from the Treasury Board to correct inconsistencies as indicated in the August 2012 Treasury Board interpretation. Thus, it was reasonable for the employer to act on that interpretation.

149        Addressing the issue of remedy, the employer pointed out that s. 192(1) of the PSLRA provides that if the Board determines that a complaint under s. 190(1) is well founded, it may make “any order” it considers necessary. If the employer has failed to comply with s. 107, s. 192(1)(a) provides that such an order may include compensating employees.

150        The employer submitted that in this matter, it is unclear what would constitute such compensation. There was no evidence that damages occurred and none of any causal link. In addition, some employees injured on duty who were advanced sick leave until workers’ compensation benefits were approved were eventually reimbursed. While the employer initially argued that any award of damages to employees would be limited to a period of 25 days before the grievance was filed, it subsequently withdrew this submission.

151        The employer next commented on some of the authorities submitted by the bargaining agent. It distinguished Public Service Alliance of Canada on the basis that in that case, the employer changed a practice after notice to bargain had been given. In Juba, more leave was granted to an employee with a negative sick leave balance. The employer did not dispute that that could occur in departments other than the CSC but urged that it is not an indication that should be considered to allow the complaint.

152        The employer submitted that by holding the parties to a high onus of establishing terms and conditions of employment, s. 107 ensures that the bargaining freeze protection does not award the parties more than the bargain they struck. The bargaining freeze cannot be used to enhance terms and conditions of employment to a greater extent than was obtained at the bargaining table.

C. Reply argument of the bargaining agent

153        The words “une période” in clause 31.04, in the singular, express the parties’ intention; namely, each time an employee is ill, he or she is entitled to a period of sick leave. The French version of clause 14.07 of the collective agreement, dealing with leave for bargaining agent representatives for meetings during the grievance process, refers to “une période raisonnable de congé”. In the bargaining agent’s submission, the structure of that clause is similar to that of clause 31.04.

154        Concerning the employer’s argument that the 200-hour sick leave maximum constitutes a single period, the bargaining agent argued that several collective agreement provisions refer to continuous or consecutive periods, such as clauses 10.10, 30.02(a), and 43.07(c)(i).

155        The bargaining agent submitted that clause 31.04 does not stipulate that employees must completely reimburse any sick leave advances before another leave can be granted. That clause deals only with the method of reimbursing sick leave.

156        The bargaining agent argued that Lamothe, at para. 40, referred to a past practice used to contradict a collective agreement provision, while this matter concerns the use of a past practice to interpret a clause.

157        Concerning the testimonies of Mr. Grabowsky and Mr. Bouchard, the bargaining agent emphasized that they had knowledge of the practices of granting sick leave across Canada. In the cases of Mr. Marcouiller and Ms. Randall, they had the knowledge to testify to the practice at their workplaces and to the practice in general.

158        Addressing the employer’s argument that the CSC and Treasury Board are to some extent separate, the bargaining agent argued that if Treasury Board delegates authority to the CSC to administer the collective agreement, it cannot take the position that it is not bound by the acts of its delegates.

159        In terms of remedy, should the policy grievance be allowed, the bargaining agent stated that those employees with a zero or negative sick leave balance who were refused advances and who were compelled to take other leave should have that other leave converted to sick leave and restored to their sick leave banks.

160        Concerning the unfair labour practice complaint, the bargaining agent submitted that the exercise of management rights under the FAA cannot contravene s. 107.

161        Referring to the Treasury Board interpretation dated August 3, 2012 (Exhibit U-5), the bargaining agent submitted that it was not a directive and that the CSC did not act on it for two years. It does not constitute evidence of the parties’ intentions at the bargaining table.

162        The bargaining agent submitted that the s. 107 freeze is a snapshot of the conditions prevailing on the date on which notice to bargain is given, not the date of application of the employer’s 2014 bulletin.

IV. Reasons

163        The central issue in these matters, from the aspect of both the policy grievance and of the unfair labour practice complaint, is the employer’s alleged change in the application of clause 31.04 of the collective agreement with respect to granting sick leave advances with pay to employees already with negative balances. I shall deal first with the policy grievance.

A. The policy grievance

164        As stipulated as follows by s. 220(1) of the PSLRA, policy grievances deal with interpretations or applications of a collective agreement:

220 (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.

165        Both parties submitted that the wording of the collective agreement was clear and that it supported their respective positions. As I had ruled that extrinsic evidence was admissible, both parties introduced evidence of the collective bargaining context in which the relevant provisions were introduced, as well as the bargaining history. It is well established that extrinsic evidence is relevant and admissible when the disputed language is patently or latently ambiguous. Accordingly, I shall deal first with the wording of the collective agreement.

166        In determining the policy grievance, I am prohibited from modifying the collective agreement by s. 229 of the PSLRA, which reads as follows:

229 An adjudicator’s ... decision may not have the effect of requiring the amendment of a collective agreement or an arbitral award.

167        In DHL Express (Canada) Ltd., the arbitrator summarized as follows certain principles of interpretation at pages 295 and 296:

... The predominant reference point for an arbitrator must be the language in the Agreement ... because it is primarily from the written word that the common intention of the parties is to be ascertained. Language is to be construed in accordance with its ordinary and plain meaning, unless adopting this approach would lead to an absurdity or repugnancy, but in these latter situations, arbitrators will interpret the words used in a manner so as to avoid such results. However, it must be remembered that these particular principles of interpretation are to be used in the context of the written Agreement itself. It is also well recognized that a counterbalancing principle is that anomalies or ill-considered results are not sufficient to cause the alteration of the plain meaning of words. Neither is the fact that one interpretation of the Agreement may result in a (perceived) hardship to one party....

...

It is well accepted that “arguability as to [different] construction[s]”, standing alone, does not create an ambiguity, allowing the introduction of extrinsic evidence (in Re Canadian National Railway Co. and Canadian Telecommunications Bargaining agent (1975), 8 L.A.C. (2d) 256 (H.D. Brown) at p. 259). When ascertaining the common intention of the parties objective tests must be used and “not to what the parties, post contractu, may wish to say was their intent, albeit with honesty and sincerity” (Re Puretex Knitting Co. and C.T.C.U., Loc. 560 (1975), 8 L.A.C. (2d) 371 (Dunn) at p. 373).

The foregoing principles are reinforced by the prescription in Article 4.05 of the Agreement under which I cannot “change, modify or alter any of the terms of this Agreement”.

It is also a well-accepted principle that the provisions of the Agreement are to be construed as a whole and that words and provisions are to be interpreted in context....

168        The collective agreement provisions at article 31 dealing with sick leave with pay read as follows:

ARTICLE 31

SICK LEAVE WITH PAY

Credits

31.01

(a) An employee shall earn sick leave credits at the rate of ten (10) hours for each calendar month for which the employee receives pay for at least eighty (80) hours.

(b) A shift worker shall earn additional sick leave credits at the rate of one decimal three three (1.33) hours for each calendar month during which he or she works shifts and he or she receives pay for at least eighty (80) hours. Such credits shall not be carried over in the next fiscal year and are available only if the employee has already used one hundred and twenty (120) hours of sick leave credits during the current fiscal year.

Granting of Sick Leave

31.02 An employee shall be granted sick leave with pay when he or she is unable to perform his or her duties because of illness or injury provided that:

(a)      he or she satisfies the Employer of this condition in such manner and at such time as may be determined by the Employer,

and

(b)      he or she has the necessary sick leave credits.

31.03 A statement signed by the employee stating that because of illness or injury he or she was unable to perform his or her duties, shall, when delivered to the Employer, be considered as meeting the requirements of paragraph 31.02(a). However, the Employer may ask for a medical certificate from an employee, when the Employer has observed a pattern in the sick leave usage.

31.04 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 31.02, sick leave will be granted to the employee for a period of up to two hundred (200) hours, subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

31.05 When an employee is granted sick leave with pay and injury-on-duty leave is subsequently approved for the same period, it shall be considered, for the purpose of the record of sick leave credits, that the employee was not granted sick leave with pay.

31.06 Sick leave credits earned but unused by an employee during a previous period of employment in the Public Service shall be restored to an employee whose employment was terminated by reason of layoff and who is reappointed in the Public Service within two (2) years from the date of layoff.

31.07 The Employer agrees that an employee shall not be terminated for cause for reasons of incapacity pursuant to Section 12(1)(e) of the Financial Administration Act at a date earlier than the date at which the employee will have utilized his or her accumulated sick leave credits, except where the incapacity is the result of an injury or illness for which Injury on Duty Leave has been granted pursuant to clause 30.16.

169        The French version of clauses 31.02 and 31.04 reads as follows:

Attribution des congés de maladie

31.02 L’employé-e bénéficie d’un congé de maladie payé lorsqu’il est incapable d’exercer ses fonctions en raison d’une maladie ou d’une blessure, à la condition :

a) qu’il puisse convaincre l’Employeur de son état de la façon et au moment que ce dernier détermine,

et

b) qu’il ait les crédits de congé de maladie nécessaires.

...

31.04 Lorsque l’employé-e n’a pas de crédits ou que leur nombre est insuffisant pour couvrir l’attribution d’un congé de maladie payé en vertu des dispositions du paragraphe 31.02, un congé de maladie payé lui est accordé pour une période maximale de deux cents (200) heures, sous réserve de la déduction de ce congé anticipé de tout crédit de congé de maladie acquis par la suite.

170        The text of clause 31.02 of the collective agreement sets out the following conditions to be met by an employee who requests sick leave with pay: the employee is unable to perform his or her duties because of illness or injury; the employee must satisfy the employer of his or her condition; and the employee has the necessary sick leave credits. If the employee otherwise qualifies for sick leave with pay under clause 31.02 but does not have the necessary sick leave credits to cover granting sick leave under that provision, clause 31.04 stipulates that the employee will be granted a sick leave advance of up to 200 hours.

171        The issue between the parties lies in clause 31.04. In fact, that clause encompasses two issues. First, whether the reference to “a period” means one or multiple periods, and second, whether an employee is required to reimburse any sick leave advanced to him or her before drawing more leave. The bargaining agent submitted that the phrase “... a period of up to two hundred (200) hours ...” means that several periods of sick leave may be advanced within the 200-hour period. In essence, its argument is that clause 31.04 provides employees with a bank of 200 hours over and above their bank of earned sick leave credits, which may be drawn upon multiple times, up to the maximum of 200 hours.

172        For the employer, the meaning of “a period” is that the 200-hour period constitutes a single period of sick leave advance. It argued that the language of clause 31.04 does not entitle an employee to additional sick leave advances before reimbursing any negative balance. It pointed to the words “such advanced leave” and “ce congé anticipé” as meaning just one leave is to be advanced, and it noted that the plural is not used in clause 31.04.

173        In my view, the plain meaning of clause 31.04 of the collective agreement is more supportive of the bargaining agent’s position than that of the employer. In examining its structure, the first part of clause 31.04, up to the words “clause 31.02”, sets out the circumstances in which an advance of sick leave will be granted; namely, if an employee has insufficient or no sick leave credits. The sentence continues with “... sick leave will be granted to the employee for a period of up to two hundred (200) hours ...” (“... un congé de maladie payé lui est accordé pour une période maximale de deux cents (200) heures ...”). The phrase “sick leave” is not qualified or limited in any manner, numerically or otherwise. In the phrase “a period”, when considered in the context of the sentence, the word “a” is an article and does not denote numerical value. The French version is consistent with the English version, in that “un congé” is not a numerical value in the context of the clause.

174        If, as the employer suggests, “a period” means a single period of up to 200 hours, then clause 31.04 could also be construed as entitling an employee to a fresh period of up to 200 hours of advanced sick leave each time he or she requests an advance. Such an interpretation would clearly lead to an absurdity and could not have been the parties’ common intention. Clause 31.04 clearly refers to a cap of 200 hours, not for each request, but overall.

175        In support of its position, the employer also referred to the last part of clause 31.04, which reads as follows: “... subject to the deduction of such advanced leave from any sick leave credits subsequently earned.” It submitted that the meaning of “such advanced leave” (“ce congé anticipé”) is that just one leave is to be advanced. My reading of this phrase is that it refers to the earlier words in the clause, “sick leave will be granted”. Thus, “such advanced leave” refers to the number of hours of sick leave that have been advanced to an employee under clause 31.04. Again, in this case, the French version is consistent with the English text. Despite the employer’s argument, I find that the meaning of this phrase is simply that an employee who has been granted a sick leave advance must reimburse it and agrees that such advance will be deducted from subsequently earned sick leave credits, and not that the employee must reimburse a previously granted sick leave advance before requesting a further advance, subject to the cap of 200 hours.

176        In my view, the ordinary and plain meaning of clause 31.04 of the collective agreement is that if an employee who qualifies for sick leave under clause 31.02(a) has insufficient or no sick leave credits, then the employee is entitled to an advance of sick leave with pay any number of times up to the cap of 200 hours. There is nothing in clause 31.04 to indicate that the bank of 200 hours must be limited to a single use rather than the total number of hours provided. The employer’s interpretation strains the language of clause 31.04 to a degree that would substantially denude it of its intention or meaning. Reading in a one-time use requirement would require the Board to change the wording of the collective agreement, which it is prohibited from doing by s. 229 of the PSLRA.

177        The employer also argued that the language of clause 31.04 does not entitle an employee to additional periods of sick leave advances before reimbursing any negative balance. Clause 31.04 stipulates that sick leave advanced to an employee is subject to reimbursement from any sick leave credits subsequently earned. As provided by clause 31.01(a), an employee earns 10 hours of sick leave credits for each calendar month in which the employee receives pay for at least 80 hours.

178        The wording of clause 31.04 does not impose any conditions on reimbursing advanced sick leave, except that it is deducted from subsequently earned sick leave credits. Nothing in that clause can be read to mean that sick leave advanced to an employee must be reimbursed before the employee is granted another advance within the 200-hour cap. The wording of clause 31.04 permits an employee to have a negative sick leave balance up to 200 hours on an as-needed basis. To read in a condition that requires employees to reimburse any advanced sick leave before being granted a further advance would constitute an amendment to the collective agreement.

179        From a practical viewpoint, in the face of such a condition, employees might request an advance of the maximum number of sick leave hours available to avoid the requirement of full reimbursement before seeking further advances. That is because the employer’s condition does not distinguish between an employee who requests an advance of 5 hours and one who requests an advance of 150 hours. Both balances would have to be reimbursed before further advances would be granted.

180        Such a position could lead to an absurd result, as demonstrated in the following example. An employee who is diagnosed with cancer requests and is granted an advance of 200 hours sick leave. Another employee requests and is granted a sick leave advance of 75 hours to deal with a severe ankle sprain requiring application of a cast. Upon removal of the cast, it is discovered that the employee has a cancerous tumor.  In this case, the employee would be required to reimburse the 75 hour advance before being granted a further advance.  

181        Ms. Renoux testified that CSC management had informed her that some employees had more than 200 hours of sick leave advanced to them and that some had over 1000 hours. Mr. Kearney also testified that some employees were granted advances of more than 200 hours. While that is a legitimate concern for the employer, it is an issue that can be remedied through management’s proper application of the 200-hour cap in clause 31.04 and does not require a change to the interpretation of that clause.

182        Ms. Renoux testified that although certain managers allowed employees to have negative sick leave balances, only in exceptional circumstances should that have occurred. In my view, such a position is not supported by the language of clause 31.04, which permits employees to be in the negative as needed, to a maximum of 200 hours.

183        I find that the language of clause 31.04 is clear on its face and that I need not rely on extrinsic evidence as an aid to determine its meaning. I further find that the employer’s interpretation of clause 31.04 violated the collective agreement by imposing a requirement that its language does not bear; namely, that employees must reimburse any sick leave advance before being granted a further advance within the 200-hour cap and that sick leave advances are restricted to a single advance until they are reimbursed.

184        In terms of remedy, the bargaining agent requested an order that the employer apply the interpretation that prevailed before April 1, 2014, and that affected employees be compensated.

185        Section 232 of the PSLRA sets out as follows an adjudicator’s remedial powers in respect of certain policy grievances:

232 If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator’s or the Board’s decision in respect of the policy grievance is limited to one or more of the following:

(a) declaring the correct interpretation, application or administration of a collective agreement or an arbitral award;

(b) declaring that the collective agreement or arbitral award has been contravened; and

(c) requiring the employer or bargaining agent, as the case may be, to interpret, apply or administer the collective agreement or arbitral award in a specified manner.

186        This policy grievance relates to a matter that was or could have been the subject of an individual grievance. Mr. Marcouiller filed a grievance contesting the employer’s refusal to advance sick leave (Exhibit U-11), and Ms. Randall testified that she had done so as well.

187        The employer argued that an adjudicator has no jurisdiction to award damages for policy grievances and furthermore that the bargaining agent’s claim for damages is vague. It did not lead evidence of the number of employees affected or how many had a positive or negative balance. Leaving aside the issue of my jurisdiction to award damages, I agree with the employer that the bargaining agent did not specify the particulars of its claim for damages; nor did it present any evidence in support of such a claim. In the circumstances, the appropriate remedy is a declaration.

B. The unfair labour practice complaint

188        The bargaining agent filed the complaint under s. 190(1)(c) of the PSLRA, which reads as follows:

190 (1) The Board must examine and inquire into any complaint made to it that

...

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions) ....

189        The time for making such a complaint is set out as follows in s. 190(2) of the PSLRA:

190 (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

190        Section 107 of the PSLRA, commonly referred to as the freeze provision, provides as follows:

107 Unless the parties otherwise agree, and subject to subsection 125(1), after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

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

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

191        The purpose of the freeze provision was set out as follows in Canada v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.):

...

The purpose of section 51 of the Public Service Staff Relations Act is to maintain the status quo in respect of terms and conditions of employment while the parties are attempting to negotiate an agreement. It is a particular version of a provision generally found in labour relations legislation [sic] is designed to promote orderly and fair collective bargaining. There must be some firm and stable frame of reference from which bargaining can proceed. The provision should not be given a narrowly technical construction that would defeat its purpose.

Section 51 is directed to “any term or condition of employment applicable to the employees in the bargaining unit” at a given point of time. The term or condition must be one that may be embodied in a collective agreement, not necessarily one that is embodied in a collective agreement. And it must be “in force” at the time notice to bargain collectively was given.

...

192        The provisions of s. 107 of the PSLRA are, for all intents and purposes, identical to the provisions found in s. 51 of the predecessor Public Service Staff Relations Act (R.S.C. 1985, c. P-35).

193        The issue to be determined is whether the employer’s notice to the bargaining agent of a change in interpretation of clause 31.04 of the collective agreement, given before the notice to bargain collectively, allowed the employer to change a term and condition of employment after that notice was given.

194        While for the reasons outlined earlier, I declined to accept the extrinsic evidence proffered related to past practice in my decision concerning the policy grievance, this evidence is relevant to my consideration of the unfair labour practice complaint.

195        The first matter to be addressed is that of the term and condition of employment applicable in the circumstances. The employer argued that the only term and condition of employment protected by s. 107 is the granting of a single period of advanced sick leave, subject to the full reimbursement of the advanced leave from subsequently earned leave prior to the granting of additional periods. It further argued that granting multiple periods of paid sick leave up to the cap of 200 hours did not constitute a term and condition of employment, but rather was the exercise of discretion by some managers that was beyond the ambit of the collective agreement.

196        This argument must fail. I have concluded that the language of clause 31.04 does not support the employer’s interpretation and that it violated the collective agreement by imposing a requirement that the text does not bear. I have found that the text of clause 31.04 contemplates granting multiple periods of sick leave to a maximum of 200 hours, subject to the deduction of advanced leave from subsequently earned leave. This finding was supported by the evidence, which demonstrated on a balance of probabilities that up to April 1, 2014, the practice was that employees were granted multiple periods of sick leave advances under clause 31.04 with no requirement to reimburse all advances before being granted further advances.

197        In considering the evidence which led me to this finding, I found the testimony of Mr. Grabowsky and of Mr. Bouchard to be persuasive. Before his election as the bargaining agent’s national president in 2013, Mr. Grabowsky had served as a regional president since 2001 and had been at the bargaining table for all negotiations with the employer since then. Mr. Bouchard has extensive experience as a bargaining agent advisor, a regional advisor and spokesperson at the bargaining table. As such, both of them were in positions of knowledge and awareness of issues concerning the bargaining agent’s membership. Both of these witnesses testified that from 2006 to 2014, no case was brought to their attention in which an employee was compelled to reimburse sick leave advances before being granted a further advance. Mr. Grabowsky testified that to his knowledge, before April 1, 2014 no employee was refused a sick leave advance if he or she was within the 200 hour limit. The only refusals to grant advances he was aware of was in cases where the advances exceeded 200 hours.

198        A significant element of the evidence was bulletin 2006-08, issued by the employer following the signature of the collective agreement on June 26, 2006. Among other things, that bulletin stated that the collective agreement provision to advance sick leave credits was intended to advance the leave necessary to cover absences due to illnesses for one or a series of periods up to 200 hours. In my view, that is a strong indication of the practice prevailing at the time.

199        The testimony of Mr. Marcouiller and of Ms. Randall related to their particular situations and cannot serve as generalizations of the practice throughout the country. Nevertheless, it provides examples of the application of the practice as experienced in those situations.

200        The employer characterized the evidence of the bargaining agent’s witnesses as anecdotal at best. Even if I accepted that characterization, which I do not, the employer did not present contradictory evidence to outweigh that of the bargaining agent. Its evidence, led primarily through Mr. Kearney, was that there was inconsistent application of the practice across the country and that the employer was unable to track certain data due to the lack of interface between the SDS and HRMS systems. Mr. Kearney also stated in cross-examination that many correctional managers granted sick leave advances before previously granted advances were reimbursed due to two reasons: either they applied the previous understanding that was contrary to the collective agreement, or they were poor administrators.   

201        Consequently, granting multiple periods of sick leave to a maximum of 200 hours with the requirement to reimburse constitutes a term and condition of employment that is captured by s. 107.

202        The employer submitted that in the event that I came to such a conclusion, then under the management rights provisions in ss. 7 and 11.1 of the FAA, the PSLRA, and the collective agreement, it had the authority to opt out of the practice as it was outside the collective agreement and was done to address inconsistencies. The employer argued that it opted out by giving clear and reasonable notice to the bargaining agent on January 29, 2014, before it gave the notice to bargain. According to the employer, the effect was to freeze the former practice until April 1, 2014, at which date the guidelines in the employer’s 2014 bulletin applied.

203        Paragraph 7(1)(e) of the FAA provides authority to the Treasury Board to, among other things, determine the terms and conditions of employment of persons employed in the federal public administration. With respect to bargaining units represented by a bargaining agent, this provision authorizes the Treasury Board to sign collective agreements as the employer.

204        Subsection 11.1(1) of the FAA sets out the powers that the Treasury Board may exercise under s. 7(1)(e). Paragraph 11.1(2)(a) stipulates as follows that the powers of the Treasury Board in relation to any of the matters specified in subsection (1) “... do not extend to any matter that is expressly determined, fixed, provided for, regulated or established by any Act otherwise than by the conferring of powers in relation to those matters on any authority or person specified in that Act ...”.

205        Section 114 of the PSLRA, which expressly provides that a collective agreement is binding on the employer, reads as follows:

114 Subject to, and for the purposes of, this Part, a collective agreement is binding on the employer, the bargaining agent and every employee in the bargaining unit on and after the day on which it has effect. To the extent that the collective agreement deals with matters referred to in section 12 of the Financial Administration Act, the collective agreement is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

206        The term “employer” is defined as follows in subsection 2(1) of the PSLRA:

employer means Her Majesty in right of Canada as represented by

(a) the Treasury Board, in the case of a department named in Schedule I to the Financial Administration Act or another portion of the federal public administration named in Schedule IV to that Act; and

(b) the separate agency, in the case of a portion of the federal public administration named in Schedule V to the Financial Administration Act. (employeur)

207        The CSC is named in Schedule IV to the FAA.

208        As the collective agreement is binding on the employer, its managerial powers are circumscribed by any matter regulated by s. 114 of the PSLRA. Furthermore, the managerial responsibilities clause of the collective agreement provides as follows (clause 6.01):

6.01 Except to the extent provided herein, this agreement in no way restricts the authority of those charged with managerial responsibilities in the Public Service.

209        The meaning of clause 6.01 is clear. Management’s residual authority is circumscribed by matters set out in the collective agreement.

210        Contrary to the employer’s submission, the provisions of the FAA, the PSLRA,and the managerial responsibilities clause of the collective agreement cited by the employer do not clothe it with the authority to opt out of a collective agreement provision. The employer argued that granting multiple periods of sick leave to a maximum of 200 hours was a practice that was outside the collective agreement. However, I have found that that is the intent of clause 31.04 and that it constitutes a term and condition of employment captured by s. 107 of the PSLRA. As such, the employer cannot ignore the meaning of clause 31.04 by referring to it as a practice beyond the ambit of the collective agreement and by imposing its own interpretation of that clause.

211        The employer also argued that it has the right to address inconsistencies in the application of the collective agreement and to provide clarification within the confines of the collective agreement. In a similar vein, it submitted that as errors in applying a collective agreement are not protected by a bargaining freeze, then neither is correcting such errors. However, that is not the situation in this case. The employer’s action did not simply consist of clarifying clause 31.04 or correcting an error. On April 1, 2014, during the statutory freeze period, it effectively modified an existing term and condition of employment by imposing requirements not found in the language of clause 31.04. That is precisely what s. 107 prohibits.

212        In support of this argument, the employer cited UCCO-SACC-CSN. That decision concerned the employer’s right to change a shift schedule. The adjudicator found that the bargaining agent failed to demonstrate that the collective agreement prohibited the employer from amending the shift schedule. As the employer had the right to amend the shift schedule before notice to bargain was given, this right remained in force after notice was given. That decision may be distinguished, as in the matter before me, the employer imposed conditions that did not exist before it gave notice to bargain on February 17, 2014.

213        The employer submitted that the bargaining freeze cannot be used to enhance terms and conditions of employment to a greater extent than what was obtained at the bargaining table. That is not what was done here. In this case, the bargaining agent has argued that the employer cannot, during the freeze, restrict a term and condition of employment that existed prior to notice to bargain being given. In this matter, the employer substantially changed a term and condition of employment set out in the collective agreement by imposing its interpretation.

214        The employer argued that a bargaining proposal to modify a collective agreement provision does not impede its ability to clarify and manage within the confines of a collective agreement. While that argument may stand as a general statement, whether it will be attenuated or reinforced will depend on the context of each particular situation.

215        In this matter, the employer’s July 15, 2010 proposal to modify clause 31.04 of the collective agreement reverted the granting of sick leave to the employer’s discretion and required employees to reimburse all previously granted sick leave advances before further being granted further advances. While this proposal was withdrawn by the employer without explanation on the last day of bargaining, July 22, 2013, it found new life in the form of the employer’s interpretation, which became effective April 1, 2014. 

216        Concerning the withdrawal of the proposal, Ms. Renoux testified that she and her colleagues had concluded that nothing would prevent the CSC from applying clause 31.04 more strictly within the existing language. Mr. Grabowsky testified that when the employer withdrew its proposal, it did not state that the clause would be interpreted differently. In cross-examination, Ms. Renoux acknowledged that during bargaining in June and July 2013, the employer never mentioned to the bargaining agent that it could adopt the April 1, 2014 interpretation without changing the text of clause 31.04.

217        Collective bargaining involves give and take and compromise by both parties on the path to concluding an agreement. Proposals are submitted, modified or withdrawn. In the context of this matter however, it appears to me that in imposing its interpretation effective April 1, 2014, the employer ventured beyond the notions of clarification and management within the confines of the collective agreement. In my view, the fact that the employer submitted its proposal to modify clause 31.04 during bargaining and that the intent of that proposal concerning sick leave advances was several months later imposed by the employer through an interpretation bulletin, buttresses the bargain agent’s argument, supported by the evidence, that the granting of multiple periods of sick leave to a maximum of 200 hours constitutes a term and condition of employment.

218        Having concluded that the employer changed a term and condition of employment, I must determine whether its notice to the bargaining agent of a change in interpretation of clause 31.04 of the collective agreement, given before the notice to bargain collectively, allowed it to change a term and condition of employment after that notice was given.

219        The employer’s notice to the bargaining agent of the change in interpretation of clause 31.04 was dated January 29, 2014, and the change was to become effective on April 1, 2014. The employer communicated that change to CSC employees on February 14, 2014. On February 17, 2014, the employer issued a notice to bargain collectively to the bargaining agent. The s. 107 statutory freeze began on that date.

220        In its argument developed on the assumption that granting multiple sick leave advances to a maximum of 200 hours is a term and condition of employment, the employer submitted that by giving clear and reasonable notice to the bargaining agent of the impending change on January 29, 2014, the effect was to freeze what it termed the former practice until April 1, 2014, at which date the employer’s interpretation applied.

221        As stated in s. 190(2) of the PSLRA, the trigger for computing the timeliness of a complaint made under s. 190(1) is “... the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.” The nature of the complaint must be considered when assessing this issue.

222        In this matter, the action giving rise to the complaint was the implementation of the employer’s interpretation on April 1, 2014. As of that date, the former term and condition of employment of granting multiple sick leave advances to a maximum of 200 hours that had been frozen was no longer observed. Effective April 1, 2014, employees with a zero or negative balance were granted a single sick leave advance and were barred from requesting another until the first advance was reimbursed. The bargaining agent filed its complaint on that date. Indeed, had the bargaining agent filed the complaint as of the date of the employer’s letter dated January 29, 2014, it would have been argued that the complaint was premature, as no change in terms and conditions of employment had yet occurred.

223        I agree with the adjudicator in Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency) that there can be no contravention of the PSLRA until the terms and conditions of employment are changed and that the triggering event is the date of the implementation of the new policy.

224        In the circumstances of this case, I find that the employer contravened s. 107 of the PSLRA.

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

V. Order

226        For file no. 561-02-679, the complaint is allowed.

227        I declare that the employer violated clause 31.04 of the collective agreement by unilaterally implementing its interpretation of that clause.

228        For file no. 569-02-148, I declare that the employer contravened s. 107 of the PSLRA by implementing its interpretation of clause 31.04 of the collective agreement during the statutory freeze period.

229        I order the employer to continue to respect the interpretation of clause 31.04 as it was applied before April 1, 2014, for the duration of the statutory freeze to the terminal date specified in s. 107 of the PSLRA.

230        I will remain seized of these matters for a period of 60 days from the date of this decision in the event the parties encounter any difficulties in its implementation.

June 3, 2016.