FPSLREB Decisions

Heard at Ottawa, Ontario
April 13, 2017

ARBITRAL AWARD

1        On September 22, 2014, the Public Service Alliance of Canada (“the bargaining agent”) served notice to bargain on the Senate of Canada (“the employer”) on behalf of the bargaining unit composed of all employees of the employer in the Operational Group (“the bargaining unit”) under s. 37 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2^nd Supp.) (“PESRA”). The last collective agreement for the bargaining unit expired on September 30, 2014.

2        Negotiation sessions took place between the parties on June 5, 2015, June 29, 2015, November 9, 2015, November 10, 2015, November 16, 2015, and December 9, 2015. The parties signed off on twelve clauses during these negotiation sessions.

3        By letter dated April 7, 2016, pursuant to s. 50 of the PESRA, the bargaining agent requested arbitration for the bargaining unit. Its letter also included a list of the terms and conditions of employment it wished to have referred to arbitration.

4        On April 22, 2016, the employer provided its position on the terms and conditions of employment for the bargaining unit that the bargaining agent wished to refer to arbitration, pursuant to s. 51 of the PESRA.  The employer also provided a list of additional terms and conditions of employment it wished to refer to arbitration.

5        By letter dated April 28, 2016, the bargaining agent provided its position on the additional terms and conditions of employment that the employer wished to refer to arbitration for the bargaining unit.

6        On September 23, 2016, the Chairperson of the Public Service Labour Relations and Employment Board (“the Board”) forwarded the terms of reference to the members of the arbitration board deemed to form the Board . The Board’s name has since been changed to the Federal Public Sector Labour Relations and Employment Board (see 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), which received Royal Assent on June 19, 2017).

7        At the hearing, the Board was informed that the following bargaining agent proposals remained in dispute:

                                                                                                                                                  

Clause 8.04:	Appointment of Representatives – Time off with pay
Clause 12.01:	Provision of Bulletin Board Space and other facilities – Bulletin Boards
Clause 12.03:	Provision of Bulletin Board Space and other facilities – Access to Premises
Clause 15.08:	Joint Consultation – Policies (NEW)
Clause 21.12:	Leave with Pay for Family-Related Responsibilities
Clause 21.14:	Injury-on-duty Leave with Pay
Clause 21.17:	Personal Leave
Clause 21.XX:	Medical and Dental Appointments (NEW)
Clause 22.03(c):	Sick Leave – Medical Certificates (NEW)
Clause 23.07:	Education Leave Without Pay - Training
Clause 27.04:	Overtime – Meal Allowance
Clause 27.05:	Overtime – Time off between Shifts (NEW)
Clause 39.02-04:	Job Security – Lay-offs (NEW)
Clause 43:	Duration
New article:	Contracting out
New article:	Bilingual Bonus
New article:	Social Justice Fund
Appendix A:	Rates of Pay

8        As for the employer’s proposals, the Board was informed that the following remained in dispute:

                                   

Clause 25.02:	Hours of Work – Posting of s
Clause 29.08:	Traveling Time – Transp
Clause 33.04:	Suspension and Discipline – Sunset claus
Clause 43:	Duration
Appendix A:	Rates of Pay

9        The bargaining agent and the employer both submitted that s. 53 of the PESRA sets out the considerations to be applied by an arbitration board. That section reads as follows:

53 In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, the board shall consider

1. the needs of the employer affected for qualified employees,
2. the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations of employees,
3. the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered, and
4. any other factor that to it appears to be relevant to the matter in dispute,

and, so far as consistent with the requirements of the employer, the Board shall give due regard to maintaining comparability of conditions of employment of employees with those that are applicable to persons in similar employment in the federal public administration.

10        The Board considered the relevant provisions of the PESRA when it rendered this award.

11        Except as otherwise set out in this award, the Board has determined that the outstanding bargaining agent and employer proposals will not be included in the arbitral award and the existing clauses will remain unchanged.

A. Clause 8.04: Appointment of Representatives -  Time off with pay

12        The current clause permits bargaining agent representatives time off to attend with fellow employees to meet with management for the purpose of dealing with grievances and attend meetings with management. The bargaining agent proposed to change this clause such that the time off to deal with these issues be time off with pay. The employer opposed the proposal.  The Board has determined that the bargaining agent’s proposal will be included in the arbitral award and that clause 8.04 shall now read as follows:

Operational requirements permitting, the Employer shall grant time-off with pay to an employee to enable him to carry out his functions as a representative on the Employer’s premises. When the discharge of these functions requires an employee who is a representative to leave his normal place of work, the employee shall report his return to his supervisor whenever practicable.

B. Clause 12.03: Provision of Bulletin Board Space and other facilities – Access to premises

13        The bargaining agent proposed to change this clause by adding words to sub-clause (b) and by deleting sub-clause (c), which sub-clause states as follows:

(c) the purpose for which the Alliance seeks to use the premises is not considered by the Employer to be adverse to the Employer’s interest;

14        The employer opposed the bargaining agent’s proposal. The Board has determined that the bargaining agent’s proposal with respect to the deletion of clause 12.03(c) will be included in the arbitral award.  Clause 12.03(c) of the collective agreement expiring September 30, 2014 shall be removed from the new collective agreement, and clause 12.03(d) shall become clause 12.03(c) in the new collective agreement.

C. Clause 15.08: Joint Consultation -  Policies (NEW)

15        The bargaining agent proposed to add a new provision to clause 15 which would prohibit the employer from introducing, cancelling or revising workplace policies until the bargaining agent has had the opportunity to consider and consult on such changes, in so far as the changes affect bargaining unit employees. The employer opposed the change submitting that it has the right to develop, implement and revise policies.   The Board has determined that the following clause with respect to policies shall be included in the arbitral award at clause 15.08:

The Employer agrees that new policies which would affect the majority of employees in the bargaining unit or existing policies similarly affecting the majority of employees in the bargaining unit will not be introduced or cancelled without prior consultation with the bargaining agent.

D. Clause 21.12(a): Leave with pay for Family-Related Responsibilities

16        The bargaining agent proposed to change clause 21.12(a) by replacing the phrase “dependent children” with the word “children” and, in the parenthesized portion that follows, amending the definition of children to include foster children, step-children or children of a spouse. The employer opposed this change. The Board has determined that the word “dependant” shall be deleted from the clause and the phrases “foster children” and “children of a spouse” shall be included in parenthesis. Clause 21.12(a) shall read as follows:

(a) For the purpose of this clause, family is defined as spouse (or common-law partner residing with the employee), children (including foster children or children of spouse or common law partner), parents (including stepparents or foster parents), or any relative permanently residing in the employee’s household or with whom the employee permanently resides.  

E. Clause 21.12(b) through (d): Leave with pay for Family-Related Responsibilities

17        The bargaining agent proposed to re-word clauses 21.12 (b) through (d) which set out on what terms the employer shall grant leave with pay for family-related responsibilities. The employer opposed the changes. The Board has determined that clauses 21.12(b) through (d) shall remain unchanged except for the following addition to clause 21.12(b):

(iv) leave with pay to provide for the employee’s child in the case of an unforeseeable closure of the school or daycare facility;

F. Clause 21.XX: Other Leave with or without pay – Medical and Dental appointments (NEW)

18        The bargaining agent proposed to add new language to clause 21 adding a provision to provide three (3) hours with pay for every medical or dental appointment attended by an employee and that any time spent in excess of the three (3) hours at an appointment would be deducted from the employee’s sick leave bank, at the employer’s discretion.  The employer opposed the addition of the new clause stating that it already provides up to two (2) hours with pay for employees to attend routine medical and dental appointments.  The Board has determined that the bargaining agent proposal shall be included in the arbitral award and the new clause shall be as follows:

21.18 An employee shall be granted three (3) hours per visit with pay to attend medical or dental appointments. Any hours spent at the medical or dental appointments beyond the three (3) hours may, at the employer’s discretion, be deducted from the employee’s sick leave.

G. Clause 22.03(c): Sick Leave – Medical Certificates (NEW)

19        The bargaining agent proposed to add new language to clause 22.03 by adding a provision that an employee may be asked to produce a medical certificate only for periods of absence in excess of three (3) consecutive days.  The employer opposed the bargaining agent’s proposal. The Board has determined that the bargaining agent proposal will be included in the arbitral award. The new clause found after clause 22.03(b) shall read as follows:

(c) An employee may be asked to produce a medical certificate only for periods of absence in excess of three (3) consecutive days.

H. Clause 23.07: Education Leave without pay - Training

20        The bargaining agent proposed new language to clause 23.07 with respect to employee training, and specifically the priorities for training. The employer objected to the proposed language.  However, it did concede that other collective agreements for other bargaining units contain similar language to the proposal of the bargaining agent, but noted that in those instances, an additional clause was contained requiring that the employee take ownership for their career development. 

21        The Board has determined that the bargaining agent’s proposal will be included in the arbitral award, together with the provision submitted by the employer that employees take ownership for their career development. Clause 23.07 shall be as follows:

1. The parties recognize the benefits derived from training and agree that training shall be afforded to indeterminate employees first. However, the parties also agree that other employees shall be given equal opportunity when the priorities and objectives should be aligned with:
   1. the need to provide direct training to employees to ensure they are able to perform their function(s) in accordance with operational requirements;
   2. the need to provide training to employees whose jobs are undergoing change due to changing priorities  of the organization;
   3. the need to provide employees with training which addresses career development and assists employees in reaching their fullest potential;
   4. where access to training opportunities under this clause are limited, the most senior employee(s) shall be trained first.
2. When the Employer requires an employee to attend training sessions, whenever possible, the sessions will be scheduled during working hours and the attendance by the employee at these training sessions shall be considered as time worked.
3. The bargaining agent recognizes the responsibility of employees to take ownership of their development with a view to reaching their fullest potential. To this extent, employees are encouraged to identify their specific interest and demonstrate their personal commitment in career development and training to the Employer.

I. Clause 25.02(a): Hours of Work -  Posting of Schedules

22        Clause 25.02(a) currently requires that work schedules be posted a minimum of fifteen (15) days before the schedule starts. However, notwithstanding this requirement, when the Senate is in session, the schedules of hours of work for Committee Attendants shall normally be posted one (1) week in advance of the start date of the new schedule. The employer proposed to amend clause 25.02 (a) by adding Drivers to the exception in clause 25.02(a)(i), in addition to the Committee Attendants. The union opposed the change.

23         The Board has determined that the employer’s proposal will be included in the arbitral award. Clause 25.02(a)(i) shall be amended by adding the words “and Drivers” after the words “Committee Attendants”.

J. Clause 27.04: Overtime – Meal Allowance

24        Clause 27.04 currently provides for an overtime meal allowance of $11.00 where employees work a minimum of two (2) or more hours of overtime immediately before scheduled hours of work (and had not been notified before the end of the previous working period) and immediately after scheduled hours of work. The bargaining agent proposed new language to clause 27.04 to make the meal allowance available to employees working on a day of rest or designated paid holiday and when the hours of overtime are not predetermined on such days. The bargaining agent also proposed an increase in the first meal allowance from $11.00 to $12.00 and an increase in the second meal allowance from 11.00 to $15.00. The bargaining agent’s proposal also seeks to remove the employer’s discretion to determine reasonable time with pay to take a second or subsequent meal break.

25        The employer opposed the bargaining agent’s proposal.

26        The Board has determined that the only change to clause 27.04 shall be the value of the first and second meal allowances, increasing the amounts from $11.00 to $11.75.  Clause 27.04 shall be amended such that the words and numbers of eleven dollars ($11.00) will be replaced with the words and numbers of eleven dollars and seventy-five cents ($11.75).

K. Clause 43: Duration

27        The parties informed the Board that they agreed that the new collective agreement would be in effect on October 1, 2014, and expire on September 30, 2017.

L. Appendix A: Rates of Pay

Economic Increases

28        The bargaining agent proposed a general economic increase of three percent (3%) in each year of the four (4)-year term it proposed. Its proposal was based on the Consumer Price index, labour market trends, wage settlements in the federal public sector and the private sector under federal jurisdiction as well as the strong Canadian economy.

29        The employer proposed a general economic increase of one and one half percent (1.5%) in the first year of the renewal of the agreement and three quarters of one percent (.75%) in each of the second and third years of the renewal of the agreement. The employer submitted that its proposal would be similar to the economic increases that were negotiated by it with other bargaining agents for other bargaining units, and as well for the House of Commons. It also submits that its proposal is similar to those increases in the larger federal public sector. The employer maintained that no recruitment or retention problems exist within the bargaining unit.

30        The bargaining agent’s wage proposal is influenced by the Operational Services SV Group settlement which occurred on February 4, 2017. The Board recognizes that the level of wage settlements between the employer and the bargaining agent is normally linked to settlements that occur throughout the Treasury Board groups. We also recognize, however, that the level of wage settlements between these parties is also normally linked to the pattern that has emerged between these parties themselves; in this case, the Board's decision in the Reporting and Text Processing Sub-Group issued on December 22, 2016 (2016 PSLREB 120). That award provided annual wage increases of 1.5%, 1.25% and 1.5% for the period April 1, 2014 to March 31, 2017.

31        It is apparent from only a brief review of the Operational Services SV Tentative Settlement that it followed upon a Compensation Survey, referred to in the Settlement as the "2014 Compensation Survey". We were not provided with that survey, or with information and submissions on how the survey was undertaken, the survey methods used or the results obtained. We were provided with the bargaining agent’s written analysis of the survey in the bargaining agent’s exhibits, though neither party made extensive submissions in respect of that analysis.

32        The tentative settlement for the Operational Services Group was reached very late in the bargaining cycle, only a short period before the hearing in this matter and after an award had already been issued between these parties in respect of another bargaining unit. It may or may not be the case that the compensation adjustments that arose in that settlement could bear upon the compensation received by similar classifications with the employer. However in our view, that is a matter that the parties would normally address in a more fulsome way than has been able to occur here.

33        In our view, the appropriate course for the Board is to follow the wage pattern in 2016 PSLREB 120 for this collective agreement round, and leave it to the parties in their next round of bargaining to determine the extent, if any, that the adjustments negotiated in the Operational Services Group might affect wage increases for this bargaining unit. We further note in this regard that for certain of the years covered by this collective agreement, the level of increase for this bargaining unit will already exceed the 'base' percentage increase negotiated in the Operational Services tentative settlement.

34        Accordingly, for the three year period covered by the collective agreements the Board awards increases of 1.5% effective October 1, 2014;  1.25% effective October 1, 2015; 1.5% effective October 1, 2016.

April 16, 2018.