FPSLREB Decisions

REASONS FOR DECISION

Group grievance referred to adjudication

1        On May 15, 2009, the Professional Institute of the Public Service of Canada (“the institute”) filed a group grievance on behalf of the following 17 nurses (“the grievors”): France Duquet, Geneviève Jourdain, Carolyn Paradis, Micheline Desilets, Micheline Bériau, Julie Ferland, Gaston Bélanger, Nathalie Debruyne, M. A. Guillemette, Pascal Laverdure, Michel Brunet, Suzanne Germain Sergerie, François Pitre, Gino Daigneault, Louise Gingras, Thérèse Bugeaud, and Hélène Landry, who work in the regional hospital at Archambault Institution (“the regional hospital”), which is in turn part of the correctional complex at Sainte-Anne-des-Plaines, Quebec. The institute seeks the payment of the penological factor allowance (“the allowance”) at the maximum rate set out in article 44 of the collective agreement between the institute and the Treasury Board of Canada (“the employer”) for the Health Services bargaining unit, which expired on September 30, 2007 (“the collective agreement”).

2        The institute referred the group grievance to adjudication on April 19, 2011.

3        The employer objected to the jurisdiction of the Public Service Labour Relations and Employment Board (“the Board”) to hear the grievance. It claimed that contrary to what is set out in s. 215 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA), the true nature of the grievance does not deal with interpreting or applying the collective agreement but instead with the security classification attributed to Archambault Institution by the commissioner of the Correctional Service of Canada (“the commissioner”) under the Corrections and Conditional Release Act (S.C. 1992, c. 20; CCRA) and related directives.

4        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 Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 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 s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

5        For the following reasons, I find that the Board does not have the jurisdiction to deal with the grievance. Its substance is the security classification attributed to Archambault Institution under the commissioner’s exclusive legislative jurisdiction.

Background

6        “Commissioner’s Directive 706” (“the Directive”), which according to the parties the Commissioner adopted under the authority conferred on him by s. 98 of the CCRA, states that Archambault Institution is a medium-security institution. It was once a maximum-security institution. In 1991, the Directive converted it to a medium-security institution due to operational needs determined by the growing medium-security correctional population.

7        According to the Directive, the regional deputy commissioner must annually review institutions’ security classifications so that they correspond to the profile of the region’s correctional population. Despite the many arguments the institute has made since at least 2005 and the reviews that several deputy commissioners have conducted, Archambault Institution’s security classification has never been increased.

8        The issue of the medium-security classification applicable to the regional hospital is unique to Quebec. All the other regional hospitals of the Correctional Service of Canada (“the Service”) in the other provinces are in maximum-security institutions.

Summary of the evidence

9        The parties agreed to submit an agreed statement of facts. All exhibits were filed with consent. In this decision, I will report only the facts relevant to the resolution of the issue before me.

10        The correctional complex at Sainte-Anne-des-Plaines includes three institutions: Archambault Institution, the Regional Mental Health Centre, and Sainte-Anne-des-Plaines Institution.

11        Archambault Institution is classified medium security. It has a regional role, as it is responsible for the regional hospital. Thus, the regional hospital is part of Archambault Institution. As an alternative to hospitalization, the regional hospital has 11 room-cells in which inmates from Archambault Institution and from all other institutions in the province are treated who are convalescing or who have chronic illnesses. The cases treated there are complex and cannot be treated at other institutions.

12        Although the Regional Mental Health Centre is also located within Archambault Institution’s walls, it is a completely independent institution. The Directive classifies it as a multi-level security institution. It has its own nursing staff and is the mental health treatment centre for inmates from all types of institutions in the province of Quebec.

13        When the grievance was filed, and then for some time, the grievors were also responsible for providing physical care to inmates at the Regional Mental Health Centre. However, nursing staff at the Regional Mental Health Centre provided some basic care. The grievors still handle urgent medical cases at the Regional Mental Health Centre and provide certain treatments, including among others large dressings and certain injections.

14        The Regional Reception Centre, which is completely independent of Archambault Institution and the Regional Mental Health Centre, is not part of the Sainte-Anne-des-Plaines complex, even though it is located there. It assesses inmates and dispatches them to the different institutions in the province, based on their security classifications. The Regional Reception Centre is classified maximum security. When inmates require health care that cannot be provided by nursing staff at the Regional Reception Centre, they are sent to the regional hospital to be treated by the grievors.

15        When inmates from other institutions, including the Regional Mental Health Centre, must be treated at the regional hospital, a risk assessment is conducted. All inmates with a medium- or maximum-security classification are escorted to their cells by two correctional officers, who must be present at all times when the cell door is open and when the grievors provide care. Sometimes, correctional officers are not available, which can delay the care to be provided to the inmates.

16        For several months, on occasion, the regional hospital took in inmates from the Regional Mental Health Centre’s acute care unit on weekends when it was crowded. The acute care unit houses inmates who are difficult to manage, particularly those in restraints and those who receive court-ordered injections.

17        Of the regional hospital’s 11 room-cells, 3 are used to house inmates from the Regional Mental Health Centre’s acute care unit, of which two have cameras that are used, for example, in post-suspension cases or for inmates who present a suicide risk. The third can be used as a segregation cell.

18        The allowance is administered and applied based on guidelines issued by the employer entitled, “[translation] Administering and applying the penological factor allowance and offender supervision allowance”. The guidelines serve to facilitate interpreting and applying the different provisions that govern the allowance and the offender supervision allowance in the different collective agreements.

19        Since the grievance was filed, the grievors have received the allowance at the medium rate, equivalent to $1000 per month, as set out in clause 44.03 of the collective agreement. They seek to receive it at the maximum rate, as they must provide medical care to inmates with multiple security classification levels.

Summary of the arguments

20        The employer maintains that the grievance is not based on interpreting or applying the collective agreement but instead on Archambault Institution’s security classification. The CCRA gives the commissioner exclusive authority to establish the security classifications of the Service’s institutions. The Directive classifies Archambault Institution as medium security. The grievors receive the allowance based on that classification, as set out in article 44 of the collective agreement.

21        The institute argues that the grievance is based on interpreting and applying the collective agreement as the grievors claim a change to the Directive to “[translation] clarify the application of the collective agreement to achieve an application that respects the intent of that clause.” The grievors do not receive the allowance at the rate that represents the risk incurred, despite the unchallenged fact that they provide care to a clientele with multi-level security classifications. Archambault Institution’s security classification, which is determined arbitrarily by the commissioner, and the lack of a separate security classification for the regional hospital jeopardize the application of the collective agreement. The Board has jurisdiction to order the employer to take the necessary steps to allow for the payment of the allowance based on the facts presented in evidence and in accordance with the parties’ intent as clearly expressed in article 44 of the collective agreement.

Reasons

22        I must first determine if the grievance is about interpreting or applying article 44 of the collective agreement, as required under ss. 215 and 216 of the PSLRA.The Board’s jurisdiction over group grievances is set out as follows in ss. 215 and 216:

Group Grievances

Presentation

215 (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

(2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations.The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

(3) The group grievance must relate to employees in a single portion of the federal public administration.

…

Reference to adjudication

216The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

23        The institute’s characterization of the grievance is insufficient to give the Board jurisdiction. Sections 215 and 216 of the PSLRA require that the true nature of the grievance be about an issue of interpreting or applying a collective agreement.

24        The employer referred me to a certain number of decisions in which adjudicators determined that they did not have jurisdiction to hear grievances before them as they did not meet the criteria set out in the PSLRA. In all those cases, the adjudicators ruled that the substance of a grievance must be determined by examining it as a whole, meaning that the desired outcome must also be considered.

25        Despite the institute’s submissions, I cannot conclude that the grievors accuse the employer of incorrectly applying the collective agreement and of not complying with article 44 of the collective agreement. Truly being disputed is the commissioner’s decision to classify Archambault Institution as medium security, a level that does not represent the reality of the work the grievors perform, and the lack of a separate security classification for the regional hospital.

26        I agree with the employer that the grievance deals essentially with the grievors’ dissatisfaction that the regional hospital is not classified as a separate multi-level security facility. As the institute itself expressed when filing the grievance, the desired outcome is a change to the Directive in that sense and, as such, the payment of the allowance at the maximum level.

27        Clause 44.03 of the collective agreement clearly indicates that the level of payment of the allowance is determined based on an institution’s security classification, as determined by the commissioner. The parties agree that ss. 97 and 98 of the CCRA give the commissioner exclusive authority to issue directives to establish rules with respect to managing the Service and over issues of executing its mandate and any other measure of applying Part I of the CCRA and its regulations. Although I share the institute and the grievors’ point of view that the regional hospital should be classified as a multi-level security facility, nonetheless, it remains that the Board does not have jurisdiction to hear a grievance that deals essentially with interpreting or applying the Directive.

28        Based on that conclusion, there is no need for me to address the parties’ other arguments.

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

Order

30        The employer’s objection to the Board’s jurisdiction is allowed.

31        I order the file closed.

April 24, 2017.

PSLREB Translation