FPSLREB Decisions

Jurisdiction - Request for the establishment of a conciliation board pursuant to section 77 of the Public Service Staff Relations Act (PSSRA) - Effect of the transitional provisions contained in section 48.1 of the PSSRA - the Canada Customs and Revenue Agency (CCRA) became a new separate employer on November 1, 1999 - on March 24, 2000, the CCRA applied to the Board pursuant to section 48.1 of the PSSRA, which addresses successor rights, for a reconfiguration of the bargaining unit structure into four units: (140-34-17) - on March 29, 2000, the Public Service Alliance of Canada (PSAC) and the Professional Institute of the Public Service of Canada (PIPSC) also applied to the Board under section 48.1: (140-34-18 and 19) - the Association of Public Service Financial Administrators (APSFA) and the Social Science Employees Association (SSEA) intervened in these applications - the PSAC, PIPSC, APSFA and SSEA were the certified bargaining agents for the employees who were formerly employed by Revenue Canada, the predecessor to the CCRA - the bargaining agents were essentially seeking a bargaining unit configuration which would allow them to continue to represent the employees for whom they had previously been certified as bargaining agent - by letter dated January 23, 2001, APSFA advised the Board that it was withdrawing from the proceedings - the Board hearing into these applications is continuing and no determination has yet been made regarding what is the appropriate bargaining unit configuration for the employees of the CCRA and who should be their bargaining agent or agents - on February 4, 2000, the PSAC requested the Chairperson to establish a conciliation board pursuant to section 77 of the PSSRA for four bargaining units of employees of the CCRA for which it was the bargaining agent and for which notice to bargain had been given prior to November 1, 1999 - the Chairperson advised the parties by letter dated March 1, 2000 that pursuant to subsection 76(2) of the PSSRA he did not intend to act on the request at that time as he was not satisfied that the parties had bargained sufficiently and seriously with respect to the dispute for which conciliation was requested - the Chairperson also raised the question of whether subsection 48.1(7) of the PSSRA contemplated any bargaining between the PSAC and the separate employer from the time the separate employer is established until the time an order is made by the Board under paragraph 48.1(7)(b) - the CCRA informed the Board by letter dated September 20, 2000 that a collective agreement had been signed by the CCRA and the PSAC for these four bargaining units, with an expiry date of October 31, 2000 - therefore, the PSAC's request for the appointment of a conciliation board was now moot - in a letter dated May 29, 2000 the CCRA requested the appointment of a fact finder pursuant to section 54.1 of the PSSRA after the employees in the Computer Systems Group had rejected the tentative agreement reached between the CCRA and the PIPSC - notice to bargain in relation to this bargaining unit had not been given prior to November 1, 1999 - in a letter dated May 29, 2000 to the CCRA, the Board denied this request for other reasons but drew the CCRA's attention to the issue previously raised by the Board in relation to the PSAC's request for the appointment of a conciliation board - in a letter dated November 21, 2000 the PSAC again requested the Chairperson to establish a conciliation board for the four bargaining units in question - the Chairperson again raised the question of his jurisdiction to appoint a conciliation board which had originally been raised in the Board's letter of March 1, 2000 - the Chairperson indicated as well that this question also arose in relation to the CCRA's request for the appointment of a fact finder - by letter dated January 5, 2001, the Board advised the parties that these questions would be determined on the basis of written submissions - the Chairperson found that it is clear that, after the severance of a portion of the Public Service from Part I and its transfer to Part II of Schedule I of the PSSRA, the effect of the successorship provisions contained in section 48.1 of the PSSRA is: 1) to continue automatically the certification of any bargaining agent for employees of the new separate employer whom the bargaining agent represented prior to the severance and 2) to preserve the employees' negotiated terms and conditions of employment, whether embodied in an existing collective agreement or frozen by virtue of section 52 of the PSSRA, as they existed at the moment of severance - the question to be determined is whether section 48.1 contemplates the possibility of bargaining between a bargaining agent, whose certification has been continued, and the new separate employer prior to the Board's making its determinations on an application made under either subsection 48.1(4) or paragraph 48.1(7)(b) - the position of the PSAC was that the purpose of the successor rights provisions was to maintain and protect the collective bargaining rights of employees and this must, by necessary implication, include the right to engage in collective bargaining with the new separate employer as soon as the severance has occurred provided that notice to bargain can be given pursuant to section 50 of the PSSRA - furthermore, according to the PSAC, it would make no sense to require the parties to await the determinations of the Board under subsection 48.1(4) or paragraph 48.1(7)(b), as the case may be, as it is possible that no application will be made under either subsection 48.1(3) or paragraph 48.1(7)(b) - the CCRA, on the other hand, maintained that the successorship provisions are meant to be temporary, merely preserving stability and the status quo through a transition period - therefore, no bargaining is contemplated between the bargaining agent and the new separate employer until the Board has made its determinations under either subsection 48.1(4) or paragraph 48.1(7)(b), as the case may be - furthermore, according to the CCRA, while there is always the possibility that no application will be made to the Board under subsection 48.1(3) or paragraph 48.1(7)(b), nonetheless the parties must await the expiry of the relevant time limits to ensure that this is the case before engaging in collective bargaining - the Chairperson concluded that he had no authority to appoint a conciliation board as requested by the PSAC - notice to bargain had been given in relation to the employees in the four bargaining units in question prior to November 1, 1999 - therefore, the terms and conditions of employment which had been frozen pursuant to section 52 of the PSSRA before the severance were continued in force after the severance by virtue of paragraph 48.1(7)(a) - in the Chairperson's opinion, the legislation does not contemplate bargaining between the PSAC and the CCRA for these employees until the Board has made its determinations under paragraph 48.1(7)(b) regarding the appropriate bargaining unit or units and which bargaining agent or agents shall represent the employees therein - any other conclusion could lead to great instability in the workplace during the transition period which, in the Chairperson's opinion, is the very opposite to what Parliament intended when it enacted section 48.1, namely, to effect a peaceful transition from one employer to another with minimal disruption to the employees and their bargaining rights - this could not be brought about if, from the moment of severance, the bargaining agent and the new separate employer were engaged in the essentially adversarial process of collective bargaining while, at the same time, the Board was in the process of determining the new bargaining unit configuration - the Board's determinations under paragraph 48.1(7)(b) could very well entail the holding of a representation vote with the accompanying possibility of workplace unrest - furthermore, the bargaining unit or units determined by the Board to be appropriate, as well as the bargaining agent or agents certified to represent them, could very well be different from what existed before the Board's determinations - in addition, the fact that the parties could be in a legal strike position at the same time that the Board renders such a decision would probably lead to turmoil in the workplace - the Chairperson did not believe that this is what Parliament intended - prior to the implementation of section 48.1 of the PSSRA, when a portion of the central administration of the Public Service was transferred from Part I to Part II of Schedule I of the PSSRA, the employees lost all their negotiated terms and conditions of employment as well as the representation of their bargaining agents - according to the Chairperson, the purpose of section 48.1 is to ensure that this does not happen again - once the Board renders its determinations under paragraph 48.