FPSLREB Decisions

REASONS FOR DECISION

I. Application before the Board

1                  The Professional Institute of the Public Service of Canada (“the Institute”) filed an application for the determination of questions of membership in a bargaining unit under s. 58 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”) on May 1, 2017. 

2                  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 name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

3                  The application filed by the Institute covered employees, other than those appointed to rank or reservists, employed by the Royal Canadian Mounted Police (RCMP) and occupying positions in the Chaplain (SPS-CHP), Health Nursing (SPS-HN), Medical Officer (SPS-MO), and Psychologist (SPS-PSY) RCMP sub-groups of the Special Services occupational group.

4                  The parties notified the Board that there are no employees occupying positions in the SPS-HN, SPS-MO, or SPS-PSY RCMP occupational sub-groups. However, on consent, the parties requested that for each group with no incumbents, the Board make a determination that the “class of employees” included in the SPS-HN, SPS-MO, or SPS-PSY RCMP sub-group is appropriately included within the bargaining unit for which the applicant is the bargaining agent.

5                  As the RCMP is listed in Schedule IV to the Financial Administration Act (R.S.C., 1985, c. F-11), the Treasury Board is the employer within the meaning of the Act. Historically, the employees that are the subject of this application were excluded from collective bargaining; however, as a result of the Supreme Court of Canada’s decision in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, and as reflected in recent changes to the definition of “employee” in the Act, these groups of employees have the right to collectively bargain.

6                  The matter was heard by way of written submissions filed by the parties.

II. Background

7                  The Institute is the certified bargaining agent for the bargaining unit composed of all employees of the employer in the Health Services (SH) Group as defined in Part I of the Canada Gazette of March 27, 1999, with the addition of the new NU-EMA sub-group as defined in Part I of the Canada Gazette of January 8, 2011                  (“the bargaining unit”). The Institute requests an order that all employees who occupy positions in the SPS-CHP sub-group and the class of employees having positions included in the SPS-HN, SPS-MO, or SPS-PSY sub-group of the Special Services occupational group at the RCMP be included in the bargaining unit.

8                  The Institute submitted that the employees covered by the application fall within the bargaining unit for the following reasons:

18. The Canada Gazette provides that:
    
    
    • “The Health Services Group comprises positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of dentistry, medicine, nursing, nutrition and dietetics, occupational and physical therapy, pharmacy, psychology and social work to the safety and physical and mental well-being of people; and, in the field of veterinary medicine, to the prevention, diagnosis and treatment of animal diseases and the determination of the human safety of veterinary drugs.”



19. Notwithstanding the generality of the foregoing, for greater certainty, employees performing duties in Chaplain (SPS-CHP), Health Nursing (SPS-HN), Medical Officer (SPS-MD) and Psychologist (SPS-PSY) Groups meet Treasury Board’s inclusion definition of theHealth Services (SH) Group as they are performing duties thathave, as their primary purpose, responsibility for one or more of the following activities:
    
    
    1. the prevention, diagnosis and treatment of dental disease and abnormal dental conditions, and the management of dental health programs;
    2. the conduct and management of programs to promote public and individual health and the reduction of disease;
    3. the prevention, diagnosis and treatment of disease, disability and abnormal physical and mental conditions;
    4. the assessment of the incidence and prevalence of diseases; the assessment of the fitness for work of Public Service employees; the medical assessment of applicants for immigration into Canada; and the assessment of the medical fitness of aviation personnel;
    5. the assessment of medical fitness for the determination of disability and other federal government benefits, special equipment and services to eligible applicants;
    6. the appraisal of drugs and medical devices for safety and efficacy under the conditions of their intended use;
    7. the assessment of medical information for the purposes of determining eligibility of applicants for a government program requiring knowledge associated with a registered nurse;
    8. the care of patients and the treatment and management of illness in co-operation with medical doctors, and the provision of specialized nursing services;
    9. the evaluation of nursing policies, procedures, standards and practices and the conduct of related research and education;
    10. the development of standards and guides in the field of nutrition and dietetics; the assessment of nutritional requirements and provision of nutrition and dietetic services; the provision of nutritional education and information; the management of nutritional programs; and the management of food services;
    11. the assessment and treatment of clients for whom occupational or physical therapy services are required for the improvement or maintenance of their well-being;
    12. the planning and management of client treatment or health education programs delivered by other health care providers;
    13. the compounding and dispensing of drugs; and the maintenance and control or the audit of drug stocks;
    14. the conduct of research in human behaviour, the assessment of human motives, abilities, skills, decisions and acts, and the treatment of human behaviour;
    15. the promotion of individual, group and community well-being through the identification and assessment of social needs; and the planning, development and delivery and management of social programs and social work services with the objective of lessening, removing or preventing the physical, emotional and material problems of individuals, families or groups;
    16. the prevention, diagnosis and treatment of animal diseases; the examination of animals, organs and tissues to determine whether they are diseased or potentially harmful to people or animals; and the evaluation of veterinary drugs to determine their human safety;
    17. the provision of advice in the above fields; and
    18. the leadership of any of the above activities.


20. Positions excluded by the Treasury Board from the Health Services (SH) Group are those whose primary purpose is included in the definition of any other group or those in which one or more of the following activities is of primary importance:
    
    
    1. the inspection of techniques and technical processes and products to ascertain conformity with prescribed standards;
    2. the inspection and regulation of the manufacture, processing, labelling and advertising of drugs for compliance with drug control legislation; and
    3. the planning, development, delivery or management of policies, programs, services or other activities dealing with the social development, settlement, adjustment and rehabilitation of groups, communities or individuals including the planning, development and delivery of welfare services.

Also excluded are positions that:

1. do not require the application of a comprehensive knowledge of dentistry, medicine, nursing, nutrition and dietetics, occupational and physical therapy, pharmacy, psychology, social work or veterinary medicine such as registered nursing assistants, community health representatives, dental hygienists or dental therapists;
2. as primary activities, engage in research in microbiology, pharmacology, toxicology, physiology, virology or related biological sciences; and
3. perform research and investigative work in various scientific disciplines pertaining to the materials and processes of basic nutrition.

Chaplain

21. The Chaplain (SPS-CHP) positions clearly fall within the definition of the Health Services (SH) Group which includes “positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of social work to the physical and mental well-being of people.” It specifically “includes positions that have, as their primary purpose, responsibility for one or more of the following activities: the promotion of individual, group and community well-being through the identification and assessment of social needs; and the planning, development and delivery and management of social programs and social work services with the objective of lessening, removing or preventing the physical, emotional and material problems of individuals, families or groups (...):,
22. As part of its COE, the RCMP did define, in or around August 27, 2010, employees performing duties in the Chaplain (SPS-CHP)subgroup as those “involved in identifying and assessing individual and group religious and spiritual needs; conducting of divine services and religious exercises; and coordinating chaplaincy activities on regional and national bases. i.e. Chaplains.”
23. 23.   Positions included in the Social Work – Chaplain (SW-CHP) sub-group are those that “involve the performance of chaplaincy duties.”

...

Health Nursing

26. The Health Nursing (SPS-HN) positions clearly fall within the definition of the Health Services (SH) Group which includes “positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of nursing to the physical and mental well-being of people.” It specifically includes “positions that have, as their primary purpose, responsibility for one or more of the following activities: the assessment of medical information for the purposes of determining eligibility of applicants for a government program requiring knowledge associated with a registered nurse; the care of patients and the treatment and management of illness in co-operation with medical doctors, and the provision of specialized nursing services; the evaluation of nursing policies, procedures, standards and practices and the conduct of related research and education; the provision of advice in the above fields; and the leadership of any of the above activities.”
27. As part of its COE, the RCMP did define, in or around August 27, 2010, employees performing duties in the Health Nursing (SPS-HN)subgroup as those “involved in taking care of patients and the treatment and management of illness in co-operation with medical doctors; providing advice related to health care; supervision/leadership of any of these activities. i.e. Health Care Nurses.”
28. Positions included in the Health Nursing (SPS-HN) sub-group are those that includes “the care of clients in co-operation with medical doctors in the management of the treatment of physical or psychological disease of clients and the provision of consultative services within treatment institutions.”

...

Medical Officers – Medicine

31. The Medical Officer (SPS-MO) positions clearly fall within the definition of the Health Services (SH) Group which includes “positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields medicine to the safety and physical and mental well-being of people.”  It specifically includes “positions that have, as their primary purpose, responsibility for one or more of the following activities: the conduct and management of programs to promote public and individual health and the reduction of disease; the prevention, diagnosis and treatment of disease, disability and abnormal physical and mental conditions; the assessment of the incidence and prevalence of diseases; the assessment of the fitness for work of Public Service employees; the medical assessment of applicants for immigration into Canada; and the assessment of the medical fitness of aviation personnel; the assessment of medical fitness for the determination of disability and other federal government benefits, special equipment and services to eligible applicants; the appraisal of drugs and medical devices for safety and efficacy under the conditions of their intended use; the provision of advice in the above fields; and the leadership of any of the above activities”.
32. As part of its COE, the RCMP did define, in or around August 27, 2010, employees performing duties in the Medical – Medical Officer (MD-MOF) subgroup as those “involved in the management of programs to promote health, providing advice on health issues, the supervision of health services activities. i.e. Health Services Officer.”

...

Psychologist

35. The Psychologist (SPS-PSY) positions clearly fall within the definition of the Health Services (SH) Group which includes “positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of psychology of physical and mental well-being of people. It specifically includes “positions that have, as their primary purpose, responsibility for one or more of the following activities:  the conduct of research in human behaviour, the assessment of human motives, abilities, skills, decisions and acts, and the treatment of human behaviour; the provision of advice in the above fields; and the leadership of any of the above activities.”
36. As part of its COE, the RCMP did define, in or around August 27, 2010, employees performing duties in the Psychologist (SPS-PSY)subgroup as those “involved in conducting research in human behaviour, assessing human motives, abilities, skills, decisions and acts, treating of human behaviour, providing advice in the above fields, and or leadership of these activities. i.e. Psychologists”.

...

[Sic throughout]

[Emphasis in the original]

9                  By letters dated June 19 and December 14, 2017, the employer indicated that it did not oppose this application.

III. Reasons for decision

10        Section 58 of the Act provides as follows:

58 On application by the employer or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining, or is included in any other unit.

11        Thus, the responsibility to determine membership in a bargaining unit rests with the Board. Generally, in making its determination, the Board must look at the duties of the employees at issue and compare them with the definition of the bargaining unit.

12        In this application, the bargaining agent, on consent, also proposed three occupational sub-groups for inclusion in its bargaining unit that currently do not have any employees. Section 58 of the Act contemplates this type of application, requiring the Board to “... determine every question that arises as to whether any employee or class of employees is included in a bargaining unit ...” (emphasis added). An occupational sub-group is a class of employees for the purposes of this application; accordingly, this application concerning occupational sub-groups, even if the sub-groups do not have any employees, can be properly heard by the Board. It is noted that the original application pertained to employees, other than those appointed to rank or reservists; by extension, in this application, each “class of employees” under consideration by this Board would not include any an employee appointed to rank or a reservist.

13        Thus, in this instance, the Board must look at the duties of the employees occupying positions in the SPS-CHP RCMP occupational sub-group and the primary duties of the classes of employees within the SPS-HN, SPS-MO, and SPS-PSY RCMP occupational sub-groups and compare them with the definition of the bargaining unit.

14        Having reviewed the documentation presented by the Institute, including the relevant definitions, and considering there is no dispute between the parties, I find that the primary duties of these employees and classes of employees come within the definition of the bargaining unit.

15        In making this determination, the Board notes that the definition of the duties of RCMP occupational sub-groups has not been published in the Canada Gazette. Thus, if the RCMP decided to change the duties of these occupational sub-groups, no formal notice would necessarily issue. This raises a concern with respect to those sub-groups that currently have no employees — if the primary duties are changed such that they no longer come within the definition of the bargaining unit, a person newly employed into one of those sub-groups may not be aware of such an impact. A bargaining agent that may have an interest in such a change would also be unaware of it.

16        For this reason, the Board has determined that if, following this decision, the definition of the duties performed by an employee within the SPS-HN, SPS-MO, or SPS-PSY RCMP occupational sub-group (“the affected occupational sub-group”) is changed, the RCMP’s commissioner will notify the employees, if any, within the affected occupational sub-group and will notify all bargaining agents. The content of the notice shall include a copy of this decision and a description of the new definition of the duties of the affected occupational sub-group.

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

IV. Order

18        The application is allowed.

19        The Board declares that all employees, other than those appointed to rank or reservists, who occupy positions in the SPS-CHP RCMP occupational sub-group are included in the bargaining unit composed of all employees of the employer in the Health Services Group as defined in Part I of the Canada Gazette of March 27, 1999, with the addition of the new NU-EMA sub-group as defined in Part I of the Canada Gazette of January 8, 2011.

20        The Board declares that the class of employees having positions included in the SPS-HN RCMP occupational sub-group is included in the bargaining unit composed of all employees of the employer in the Health Services Group as defined in Part I of the Canada Gazette of March 27, 1999, with the addition of the new NU-EMA sub-group as defined in Part I of the Canada Gazette of January 8, 2011. This class of employees does not include any employees appointed to rank or reservists.

21        The Board declares that the class of employees having positions included in the SPS-MO RCMP occupational sub-group is included in the bargaining unit composed of all employees of the employer in the Health Services Group as defined in Part I of the Canada Gazette of March 27, 1999, with the addition of the new NU-EMA sub-group as defined in Part I of the Canada Gazette of January 8, 2011. This class of employees does not include any employees appointed to rank or reservists.

22        The Board declares that the class of employees having positions included in the SPS-PSY RCMP occupational sub-group is included in the bargaining unit composed of all employees of the employer in the Health Services Group as defined in Part I of the Canada Gazette of March 27, 1999, with the addition of the new NU-EMA sub-group as defined in Part I of the Canada Gazette of January 8, 2011. This class of employees does not include any employees appointed to rank or reservists.

23        The Board declares that if the definition of the duties of employees in the SPS-HN, SPS-MO, or SPS-PSY RCMP occupational sub-group is changed, the RCMP’s commissioner will provide to each employee within the occupational sub-group that has been subject to the change, and to every bargaining agent, a copy of this decision together with a copy of the new definition of the occupational sub-group.

April 13, 2018.