FPSLREB Decisions

Heard at Ottawa, Ontario,
October 4, 2016.

REASONS FOR DECISION

I. Complaintbefore the Board

1        The Public Service Alliance of Canada (“the complainant”) is the certified bargaining agent for all employees in the Program and Administrative Services Group (“the PA Group”) and the Operational Services Group (“the SV Group”) bargaining units.

2        The agreement between the Treasury Board (“the respondent”) and the complainant for the PA Group bargaining unit (“the PA collective agreement”) expired on June 20, 2014. The respondent gave notice to bargain for that bargaining unit on February 24, 2014. Similarly, their collective agreement for the SV Group bargaining unit (“the SV collective agreement”) expired on August 4, 2014, and the respondent gave notice to bargain for that bargaining unit on April 4, 2014.

3        Collective bargaining for both bargaining units was ongoing as of the date of the hearing.

4        When the notices to bargain were given, most term employees in the Pacific Region of the Correctional Service of Canada (CSC) in the PA Group and SV Group bargaining units worked full-time hours (37.5 hours per week in the former and 40 hours per week in the latter group).

5        Effective November 1, 2014, 45 term employees in the PA Group bargaining unit had their hours of work reduced from 37.5 to 30 hours per week. On the same date, 6 term employees in the SV Group bargaining unit had their hours of work reduced from 40 to 32 hours per week.

6        On January 30, 2015, the complainant filed with the Public Service Labour Relations and Employment Board a complaint pursuant to s. 190 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2).

7        The complainant alleges that the respondent violated s. 107 (“the freeze provision”) of the Public Service Labour Relations Act by reducing the work hours of full-time term employees in the PA Group and SV Group bargaining units working in the CSC’s Pacific Region after notices to bargain were given.

8        At all material times, the freeze provision provided 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

1. if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or
2. if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

9        Subsection 125(1) of the Public Service Labour Relations Act has no application in the matter before me.

10        The respondent requests that the complaint be dismissed on the basis that it was not filed within the time limit set out in s. 190(2) of the Public Service Labour Relations Act. In the alternative, it asks that discretion be exercised to refuse to determine the complaint and to defer to adjudication (see s. 191(2)). Finally, the respondent submits that it did not breach the freeze provision.

11        The complainant states that the complaint was timely and that it should be heard. The complainant also submits that the evidence shows that the respondent violated the freeze provision.

12        A hearing was held on October 4, 2016. The parties presented an agreed statement of facts. In addition, the following two witnesses testified:

• Laurel Rice, one of the full-time term employees affected by the decision to reduce the hours of work; and
• David Scott Dick, who was the assistant deputy commissioner - integrated services for the CSC’s Pacific Region when the decision was made to reduce the hours of work.

13        The parties also provided documentary evidence about 50 other employees who were affected by the decision to reduce the hours of work.

14        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the names of the Public Service Labour Relations and Employment Board, the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act and the Federal Public Sector Labour Relations Act.

15        For ease of reading, the word “Board” will be used in this decision to refer to the Public Service Labour Relations and Employment Board and the Federal Public Sector Labour Relations and Employment Board. Further, the abbreviation “FPSLREA” will be used to refer to the Public Service Labour Relations Act and the Federal Public Sector Labour Relations Act.

II. Issues

16        The Board must determine the following issues:

1. Was the complaint filed within the statutory time limit?
2. Should the Board refuse to exercise its discretion to determine the complaint?
3. Did the respondent breach the freeze provision?

A. Was the complaint filed within the statutory time limit?

1. Applicable law

17        At all material times, s.190 of the FPSLRA provided 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) …

…

(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.

…

18        Subsections 190(3) and (4) of the FPSLRAhave no application in the matter before me.

2. Relevant facts

19        On October 10, 2014, Mr. Dick sent to the Regional Management Committee (RMC) of the CSC’s Pacific Region a memo entitled, “Reduction in Workweek - Term Employees and Casuals”. The memo stated that all term and casual employees in the Pacific Region would have their workweeks reduced to a maximum of four days, effective November 1, 2014 (this complaint focuses only on the full-time term employees’ hours reduction).

20        Mr. Dick testified that the RMC and the Regional Deputy Commissioner decided to reduce the hours of work as a way of dealing with a budgetary deficit in the CSC’s Pacific Region. He stated that at the time the memo was sent, the decision was final.

21        The memo communicated the decision to regional managers and informed them that all staff affected by the decision were to be advised of it on October 14, 2014. The memo included a template letter to be provided to employees.

22        At a meeting held on October 14, 2014, all affected employees were informed of the reduction to their hours of work. They were told that it was effective November 1, 2014, and that it would be in place until the end of the fiscal year. They were also told that management did not know what the impact would be in the years to come. The affected employees received written notice of the change on October 14, 2014, or shortly after that, and they were required to immediately advise the respondent of which day they would not work once the change was in effect.

23        Ms. Rice testified that at that meeting, the employees were left with no doubt that the decision had been made and that the change would take place on November 1, 2014. She also acknowledged that in her personal grievance related to the change, she indicated that the date on which the decision being grieved occurred was October 14, 2014.

24        Also on October 14, 2014, Mr. Dick sent a copy of his memo to Nancy Burton, who was the regional vice-president of the Union of Solicitor General Employees, which is a component organization of the complainant. In the accompanying email, he advised her of the decision to reduce the hours of the CSC’s Pacific Region’s full-time term employees.

25        The change took effect on November 1, 2014.

26        The complaint is dated January 30, 2015, and it was filed with the Board on the same date.

3. Positions of the parties

27        The respondent objected to the timeliness of the complaint, arguing that the time limit started to run on October 14, 2014, the date on which the complainant and the affected employees were told about the respondent’s decision.

28        The complainant’s position is that the time limit started to run on November 1, 2014, the date on which the reduction of hours of work took effect, and that as a result, the complaint is timely.

4. Analysis

29        The complaint in this case was filed under s. 190(1)(c) of the FPSLRA, which states that the Board must examine and inquire into any complaint made to it that the respondent failed to comply with the freeze provision.

30        According to s. 190(2) of the FPSLRA, a complaint under s. 190(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.”

31        In Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, the Federal Court of Appeal confirmed that the 90-day time limit prescribed in s. 190(2) is mandatory and that the Board had no discretion to extend it. The Court further stated as follows at paragraph 40: “In order to apply this provision to the facts, the Board had to define ‘the complaint’, and to decide when Mr [sic] Boshra knew or ought to have known of the action or circumstances that gave rise to it.”

32        Determining the date on which the complainant knew or ought to have known of the circumstance giving rise to the complaint is a question of fact in each case.

33        In addition, context is important. In Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46 (“PSAC (2013)”), the Board stated as follows at paragraph 68:

[68] I accept the line of jurisprudence that in determining timeliness of a complaint the context of each case is important and that given the complaint alleges a contravention of the statutory freeze provision the nature of the complaint must inform the timeliness analysis.

34        The respondent’s decision to reduce hours of work was conveyed to the affected employees and the complainant on October 14, 2014. At that time, the decision was final, and the affected employees were told that it would take effect on November 1, 2014.

35        The respondent submits that the 90-day time limit started on October 14, 2014, the date on which the complainant and the affected employees were made aware of the respondent’s decision.

36        However, I find that in a statutory freeze complaint, the essence of the complaint is that the employer failed to observe a term or condition of employment continued in force pursuant to s. 107 of the FPSLRA after notice to bargain was given. PSAC (2013), at para. 69, stated as follows:

[69] I find compelling the argument that the triggering event for the complaint is the date that the terms and conditions of employment that are frozen are no longer observed. There can be no contravention of the [FPSLRA] until the terms and conditions of employment are changed.

37        This reasoning was also used in Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2016 PSLREB 47. In that case, the Board stated as follows at paragraph 223:“I agree with the adjudicator in [PSAC (2013)]that there can be no contravention of the [FPSLRA] until the terms and conditions of employment are changed and that the triggering event is the date of the implementation of the new policy.”

38        In this matter, the “… action or circumstances giving rise to the complaint”, per s. 190(2) of the FPSLRA, was the respondent’s act of reducing the hours of work of full-time term employees in the CSC’s Pacific Region, which became effective on November 1, 2014. Therefore, November 1, 2014, is the date on which the complainant knew about that change.

39        The complaint was filed on January 30, 2015, within the mandatory 90-day time limit.

40        The evidence shows that some of or all the affected employees filed individual grievances about the reduction to their hours of work. In a section of the individual grievance form, the grievor indicates the date on which the incident occurred that gave rise to the grievance. Several of the affected employees indicated October 14, 2014, others left the section blank, and others put in different dates, including November 1, 2014.

41        The respondent submits that because several affected employees used October 14, 2014, as the date on which the matter giving rise to their individual grievances occurred, and because the complainant represented them, the complainant can be deemed to have had knowledge of the issue on that date. However, as noted, a number of different dates were given in the individual grievances, including November 1, 2014. Therefore, I cannot derive any conclusion from these grievances about the date on which the complainant knew of the action that gave rise to this complaint.

42        The respondent further argues that in PSAC (2013), the change in question was still being discussed after the initial notice of the change was given and that therefore, the complainant could not be certain that the change would occur until it actually came into effect. However, that is not so. In PSAC (2013), the Board noted that between the date of the initial notice, April 11, 2012, and July 25, 2012, discussions were ongoing. However, on July 25, 2012, the employer advised the complainant that the decision about the change was final. On those facts, the Board still found that the time limit had not been triggered until August 15, 2012, the date on which the change came into effect.

B. Should the Board refuse to exercise its discretion to determine the complaint?

1. Positions of the parties

43        The respondent requests that the Board exercise its jurisdiction under s. 191(2) of the FPSLRA to refuse to determine the complaint. That subsection reads as follows: “The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 by the complainant.”

44        The respondent argues that the essence of the complaint is the complainant’s dissatisfaction with how the respondent applied the PA and SV collective agreements. It contends that a dispute about the interpretation of a collective agreement should be dealt with by way of one of the grievance processes under Part 2 of the FPSLRA.

45        The respondent also states that in the situation at issue, the complainant never alleged that the collective bargaining process for the PA Group and SV Group bargaining units was in any way impacted by the temporary reduction to the hours of work and that there is no evidence of such an impact. In its view, this is another reason the Board should defer to adjudication in this case.

46        The respondent further submits that the corrective measures the complainant seeks would be dealt with more appropriately in grievance proceedings.

47        Finally, the respondent notes that in fact, numerous individual grievances related to the reduction in hours for the CSC’s Pacific Region’s full-time term employees have already been filed.

48        According to the complainant, the main issue is whether, once the notices to bargain were given, the employer was permitted to exercise the discretion it had before those notices were given. Therefore, this matter is properly before the Board as a complaint and should be dealt with as such. The complainant argues that the employer violated the freeze provision, not that it violated the collective agreements.

49        The complainant further notes that it is not necessary to prove the existence of anti-union animus or bad faith to make a complaint about a failure to comply with the freeze provision.

2. Analysis

50        In Office and Professional Employees International Union v. 4384865 Canada Inc., 2012 CIRB 667, the Canada Industrial Relations Board (CIRB) applied a provision of the Canada Labour Code (R.S.C., 1985, c. L-2) that is identical to s. 191(2) of the FPSLRA. The CIRB stated as follows at paragraph 24:“The [CIRB] is generally inclined to defer to arbitration when the matter requires the interpretation of a collective agreement and the underlying dispute or difference can be fully resolved through the arbitration process.”

51        In Canadian Union of Public Employees v. Algoma District School Board, [2014] O.L.R.D. No. 3379 (QL) at para. 33, the Ontario Labour Relations Board (OLRB) considered its jurisdiction under a similar provision. It stated as follows:

33 The decision to defer to arbitration is discretionary and the [OLRB] has favoured deferral when: (1) the nature of the dispute is primarily contractual or factual; (2) the statutory issue is congruent with the resolution of the contractual dispute; (3) the relief at arbitration would satisfy the relief sought for the alleged conduct of the employer; (4) the resolution of the unfair labour practice complaint will not eliminate the need for arbitration; and (5) there is a risk of inconsistent findings between the [OLRB] and the arbitrator….

52        As I stated, I find that the essence of the present complaint is that the respondent altered a term or condition of employment after the notices to bargain were given.

53        Affected employees filed individual grievances about the decision to reduce their hours of work. The question in those grievances is whether in doing so, the respondent properly interpreted the PA and SV collective agreements.

54        In this matter, deciding the collective agreement interpretation question will not determine the complaint. The question in this case is the following: Even if under the applicable collective agreements, the employer could change the hours of work of full-time term employees, was it still permitted to after the notices to bargain were given?

55        I find that the key issue in this case is the application of the freeze provision to the facts. As a result, the matter is best dealt with as an unfair labour practice complaint. Therefore, in these circumstances, I decline to exercise my discretion to refuse to determine the complaint, and I will not defer to adjudication.

C. Did the respondent breach the freeze provision?

1. Applicable law and principles

56        At all material times, the freeze provision read 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

1. if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or
2. if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

57        Subsection 125(1) of the FPSLRA has no application in the matter before me.

58        In The Queen v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.) at 89, Justice Urie stated that the purpose of a freeze provision was “… that, after the notice to bargain, the employer-employee relationship existing immediately prior to the notice, in so far as terms or conditions of employment are concerned, should be preserved.” Justice Le Dain stated at page 91 that the purpose of such a provision was to maintain the status quo. He added the following: “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.”

59        The freeze provision applies to terms and conditions of employment that are contained in the collective agreement or that may be included in it.

60        The freeze provision is a strict liability provision; it applies whether or not the employer had justifiable reasons for making a change. In Teamsters Local Union 419 v. Arrow Games Inc., [1991] OLRB Rep. February 157, the OLRB, interpreting a provision similar to the freeze provision in this case, stated at paragraph 19 as follows:

… Whether those negotiations were actually frustrated by the respondent’s action in reducing hours of work does not require an answer. [The Ontario Labour Relations Act provision equivalent to the freeze provision] is a strict liability provision that anticipates and forecloses debate about what may or may not frustrate the conduct of negotiations. The absence of anti-union animus or the existence of bona fide business reasons is irrelevant….

61        The purpose of the freeze provision is to ensure a stable work environment through the period of collective bargaining. However, it does not mean that the workplace will be static. Firstly, the employer may make changes with the bargaining agent’s consent. Secondly, the employer may make changes if the change falls within an established pattern in the employment relationship. In other words, the respondent is governed by the “business as before” approach.

62        The OLRB described the “business as before” approach in Spar Professional and Allied Technical Employees Association v. Spar Aerospace Products, [1979] 1 Can LRBR 61 at 68, as follows:

The “business as before” approach does not mean that an employer cannot continue to manage its operation. What it does mean is, simply, that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before….

63        Another way of determining if an employer breached a statutory freeze provision is the “reasonable expectations” approach, in which the question becomes the following: What would a reasonable employee expect to constitute his or her terms and conditions of employment or benefits in the specific circumstances of her or his employer? If the respondent’s change is not within an employee’s reasonable expectations, then it violates the statutory freeze provision.

64        The OLRB stated as follows in Teamsters Local Union 419, at para. 17:

… The respondent did, as it argues, have the right to reduce hours of work prior to the freeze (and retains that right subject to what is negotiated between the parties in their collective agreement) but the question is whether it can exercise that right during the freeze. It had not exercised it before. There is, in essence, a pattern - a five-day work week [sic]. Under what circumstances might a reasonable employee expect that to change?

65        Given those principles, I find that the questions to be answered when considering a freeze provision complaint are the following:

• Did this term or condition of employment exist when the notice to bargain was given, or was it a term or condition that could have been included in the collective agreement at the time?
• Was there a change to a term or condition of employment during the freeze period?
• If there was a change during the freeze period, did the bargaining agent consent to the change; if not, was the change part of an established pattern of conducting business, or was it within the employees’ reasonable expectations?

2. Relevant facts

66        Ms. Rice had been working for the CSC since 2011. From then to the hearing, she received a number of full-time term appointments to different positions in which she normally worked 37.5 hours per week.

67        In September 2014, Ms. Rice began a full-time term appointment as a case management officer. The letter advising her of the appointment contained the following sentence: “Your employment is subject to the Treasury Board’s Directive on Terms and Conditions of Employment and the relative collective agreement”. She accepted the offer of employment by signing the letter on September 25, 2014.

68        On October 14, 2014, she was called to a meeting with other full-time term and casual employees. The respondent advised them that as of November 1, 2014, their hours were being reduced to 30 from the full-time amount of 37.5 per week. The employees were told that the decision had been made to help with the CSC’s financial deficit.

69        On the same day, Ms. Rice received a letter confirming the reduction to her hours of work, which was set for November 1, 2014. Affected employees were asked to sign and return copies of the letter to confirm that they had received it. They were also asked to immediately submit a time sheet showing the day on which they would not work.

70        Ms. Rice testified that the reduction resulted in a drastic financial loss for her. It also affected her leave and pension entitlements. The change caused stress because it was difficult to keep up with the workload on a reduced schedule.

71        Ms. Rice and the other affected employees returned to a full-time schedule of 37.5 hours per week on April 1, 2015.

72        Mr. Dick stated that in early October 2014, the RMC and the Regional Deputy Commissioner decided to reduce the hours of all full-time term employees in the region. Reductions were to begin on November 1, 2014, and were to continue for the remainder of the fiscal year, at which time the decision would be reviewed.

73        Mr. Dick stated that had the CSC not taken that step, it would have had to lay off employees to deal with the financial deficit.

74        After the reduction came into effect, managers had to review their operations and priorities, to handle the workload with full-time term employees working less hours.

75        Mr. Dick explained that the CSC’s commissioner established delegated authorities through the CSC’s “Instrument of Delegation of Authorities in the Area of Human Resource Management” (“the delegation instrument”). The applicable version was dated November 20, 2013.

76        The delegation instrument ranked CSC positions from 1 to 6, with 1 being the commissioner. It then went through different human resources decisions and identified to what level the commissioner had delegated the authority to make them.

77        According to the delegation instrument, managers and supervisors at the lowest level of delegation authority could authorize changes to hours of work, including flexible or variable hours and compressed workweeks.

78        Mr. Dick stated that on or approximately on April 1, 2015, all the affected employees in the PA Group and SV Group bargaining units who were still in the CSC’s employ had their full-time hours of work restored in accordance with the CSC’s budget for the new fiscal year.

3. Complainant’s position

79        The affected employees worked full-time hours at the time the notices to bargain were given. The complainant contends that hours of work was a term or condition of employment that the employer could change during the freeze period only in two situations: if the bargaining agent consented to the reduction, or if the reduction was part of an established pattern that existed before the notices to bargain were given. In this matter, the bargaining agent did not consent to the reduction to the hours of work.

80        The affected employees had all been appointed to full-time term positions. The reduction of hours of work on November 1, 2014, was a significant change to the terms and conditions of their employment. The respondent recognized its importance by having all employees return a signed copy of the letter advising them of the change.

81        The complainant submits that the reduction to the hours of work was a clear departure from the terms in the employees’ appointment letters and from the consistent practice at the time the freeze provision took effect. Therefore, it submits that the reduction cannot be justified on the basis of the “business as before” or “reasonable expectations” approach to altering terms and conditions during a freeze period.

4. Respondent’s position

82        The respondent argues that the effect of the freeze provision was to maintain the discretion it held to change hours of work by virtue of the PA and SV collective agreements, the Treasury Board Directive on Terms and Conditions of Employment,andthe Financial Administration Act (R.S.C., 1985, c. F-11; FAA).

83        The respondent submits that accepting the complainant’s argument would lead to the absurd result that employees would have more rights in a freeze period than they would normally have.

5. Analysis

84        Pursuant to ss. 7 and 11.1 of the FAA, the respondent had the authority to alter the terms and conditions of employment, subject only to specific limitations in a statute or collective agreement.

85        The PA collective agreement stated as follows:

…

25.02 Nothing in this Article shall be construed as guaranteeing minimum or maximum hours of work. In no case shall this permit the Employer to reduce the hours of work of a full-time employee permanently.

…

25.07 Employees shall be informed by written notice of their scheduled hours of work. Any changes to the scheduled hours shall be by written notice to the employee(s) concerned.

…

86        The SV collective agreement had a similar provision. Clause 25.07 stated as follows: “An employee’s scheduled hours of work shall not be construed as guaranteeing the employee minimum or maximum hours of work.”

87        Upon hiring, the affected employees had been advised that their employment was subject to the Treasury Board Directive on Terms and Conditions of Employment, which stated the following at article 8: “The working day of every person appointed to the core public administration commences and terminates each day at the hours fixed by the person with the delegated authority.” According to the evidence, the Regional Deputy Commissioner had the delegated authority to make the decision to reduce the hours of work.

88        Therefore, it is established that the respondent had the authority to alter terms and conditions of employment outside the freeze period.

89        The respondent argues that it was its discretion to make changes to the terms and conditions of employment that was frozen when the notices to bargain were given, meaning that it could exercise its discretion to change hours of work even during the freeze period.

90        The respondent presented a number of cases in which labour boards dismissed complaints involving freeze provisions similar to the one in this case. I find that several of those cited cases are distinguishable because their situations are different from this case, such as:

• Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2016 PSLREB 26: the change was initiated before notice to bargain was given.
• Canadian Air Traffic Control Association v. Treasury Board, PSSRB File No. 148-02-186 (19910724), [1991] C.P.S.S.R.B. No. 185 (QL): when notice to bargain was given, there was an understanding that overtime would be used in a certain situation only if overtime funds were available, and changing that practice when funds were not available was not a violation of the freeze provision applicable at that time; and
• Public Service Alliance of Canada v. National Capital Commission, PSSRB File Nos. 148-29-218 and 161-29-761 (19951016), [1995] C.P.S.S.R.B. No. 101 (QL): contracting out was permitted because there was an established pattern of doing it.

91        However, in other cases the respondent cites, the complaints were dismissed because the labour boards involved accepted the argument that the respondent puts forward, which is that the discretion to make changes was itself the frozen term of employment (see, for example, Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 148-02-75 (19820406), [1982] C.P.S.S.R.B. No. 68 (QL); and UCCO-SACC-CSN v. Treasury Board, 2004 PSSRB 38).

92        In response, the complainant cites a number of cases in which labour boards rejected the respondent’s argument, including three recent cases of the Board.

93        In PSAC (2013), the Board found that the respondent violated the freeze provision when it terminated a long-standing agreement to grant union leave with pay.

94        In Canadian Association of Professional Employees v. Treasury Board (Department of Public Works and Government Services),2016 PSLREB 68 (CAPE), the Board decided that the respondent had contravened the terms and conditions of employment continued in force by the freeze provision by ending the long-standing practice of allowing parliamentary translators to modify their work schedules and to work days, between 08:00 and 18:00, when Parliament was not sitting, while keeping the related pay supplement.

95        In Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2016 PSLREB 19, the Board found that the respondent’s decision to change its policy with respect to conducting professional standards investigations violated the freeze provision.

96        In rejecting the respondent’s argument in those three cases, the Board found that the freeze provision does not freeze an employer’s discretion to make changes to terms and conditions of employment continued in force by the freeze provision; rather, it restricts that discretion so that the employer may make changes only if the bargaining agent gives its consent or if the change is part of an established pattern and the employees would reasonably expect it. CAPE states as follows at paragraphs 136 and 137:

[136] The employer’s argument that it had the right to modify work hours under the principles outlined in the Financial Administration Act and that that authority continued into the freeze period cannot be accepted to justify its decision to force parliamentary translators to work evenings to receive their pay supplement.

[137] Accepting that argument would render the protection conferred under [the freeze provision] meaningless and could lead to an absurd interpretation of the [FPSLRA]. Therefore, it would mean that there could never be a violation of the freeze provided for under the [FPSLRA] by virtue of the very existence of the employer’s residual powers. As established by case law, that was not Parliament’s intent. The purpose of the protection is to ensure orderly and equal bargaining between the parties and peaceful labour relations during the statutory freeze. Such an interpretation would allow the employer to take action that could destabilize this relationship and, consequently, violate what [the freeze provision] seeks to protect.

97        In my view, this view of the freeze provision is to be favoured, as it serves the purpose of providing stability through the collective bargaining period. This view also accords with the pronouncement of the Federal Court of Appeal in Canadian Air Traffic Control Association.

98        In this case, when the notices to bargain were given, there was a practice of full-time term employees working full-time hours. There was no evidence that the respondent had made any reductions to the hours of work of the affected employees before the freeze period.

99        In other words, although it had the authority to reduce hours of work, it had established over time a pattern of not doing so in the case of the affected employees. Therefore, the affected employees and the complainant had an expectation that the employer would not reduce the hours after the notices to bargain were given. I find that this expectation was reasonable in the circumstances.

100        The respondent submits that when a collective agreement entitlement exists, the concepts of “business as usual” and “reasonable expectations” do not apply. It states that in this case, it continued to have authority to reduce hours of work, even if there was an established pattern of it not doing so.

101        The respondent adds that only when an employer is following a policy or practice that is not founded in a collective agreement is an analysis of the concept of “business as usual” or “reasonable expectations” required.

102        With respect, I do not find that there is any difference in the way labour boards determine freeze complaints depending on whether the term or condition of employment involved is found in a collective agreement or may be included in one but was not when notice to bargain was given.

103        Reducing the hours of work of the affected employees was a major change to the terms and conditions of employment continued in force by the freeze provision. It affected not only their hours of work but also their salaries and benefits. The respondent has shown that it was reacting to a serious financial deficit. It also stated that there was no proof of anti-union animus on its part. While I accept that as true, it is not a relevant factor in my assessment of whether it violated the freeze provision.

III. Conclusion

104        I declare that the respondent’s act of reducing the hours of work of full-time term employees in the CSC’s Pacific Region during the freeze period was a violation of the freeze provision. There was no evidence that the complainant had consented to the change. Further, that change was not justifiable under either the “business as before” or the “reasonable expectations” approach.

105        I note that the full-time work hours of all affected employees were restored on or approximately on April 1, 2015.

106        Therefore, the remedial order in s. 192(1)(a) of the FPSLRA is available in the circumstances. At all material times, s.192(1)(a) provided as follows:

192 (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:

1. if the employer has failed to comply with section 107 or subsection 125(1), an order requiring the employer to pay to any employee compensation that is not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee ….

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

IV. Order

108        I declare that the complaint is timely.

109        The respondent’s request that the Board exercise its discretion to refuse to determine the complaint is dismissed.

110        I declare that the respondent’s reduction of the hours of work of full-time term employees in the PA Group and SV Group bargaining units in the CSC’s Pacific Region after the notices to bargain were given was a violation of the freeze provision.

111        The complaint is upheld.

112        I order the respondent to pay to all affected employee in the PA Group and SV Group bargaining units in the CSC’s Pacific Region compensation for all lost wages and benefits that but for the reduction of their hours of work would have been paid to the employees from November 1, 2014, to March 31, 2015.

113        I will remain seized of this matter for a period of 120 days from the date of this decision in the event that the parties encounter any difficulties in its implementation.

July 20, 2017