FPSLREB Decisions

[1]   This decision is further to the hearing of four grievances referred to adjudication under paragraph 92(1)(a) of the Public Service Staff Relations Act (PSSRA) by Aline Parker (166-2-32082), Sylvie Lavoie-Crites (166-2-32083), Johanne Lalonde (166-2-32084) and Danielle Blais (166-2-32085).

[2]   When the grievances were submitted, the grievors held positions as technical consultants (CS-1 group and level) in the Information Technology Services Division of the National Library of Canada. Aline Parker and Danielle Blais are assigned to the work location at 396 Wellington Street in Ottawa, and Sylvia Lavoie-Crites and Johanne Lalonde are assigned to Terrasses de la Chaudière in Hull.

[3]   In their grievances, the grievors are asking that the employer pay them a terminable allowance associated with the CS-1 group and level to which they were reclassified on September 14, 2001, from the AS-2 group and level. They are requesting that this payment be retroactive to the effective date of their reclassification, that is, October 1, 1998.

[4]   Three collective agreements cover the period at issue in these grievances. The collective agreements and their appendices will be designated in this decision as follows:

• 1997 agreement: refers to the collective agreement signed on December 2, 1997 (Code: 303/97), and expiring on April 30, 1999 (Exhibit G-14). The 1997 memorandum of understanding refers to Appendix F, which deals with the terminable allowance in that collective agreement.

• 1999 agreement: refers to the collective agreement signed on June 11, 1999, and expiring on April 30, 2000 (Exhibit G-15). The 1999 memorandum of understanding refers to Appendix E, which deals with the terminable allowance in that collective agreement.

• 2001 agreement: refers to the collective agreement signed on June 28, 2001 (Code: 303), and expiring on April 30, 2002 (Exhibit G-16). The 2001 memorandum of understanding refers to Appendix E, which deals with the terminable allowance in that collective agreement.

The Facts

[5]   The facts submitted in evidence during the testimony of Johanne Lalonde (witness for the grievors) and Denis Martel (witness for the employer) are not contradictory. These grievances relate to events that began in 1998 when the grievors held positions classified at the AS-2 group and level. Under the new classification system (UCS - Universal Classification Standard), they were asked to verify the accuracy of their job descriptions. If applicable, new job descriptions would be considered for reclassification purposes.

[6]   A reorganization of National Archives and the National Library was planned in May 2000 and the review of job descriptions begun in 1998 was suspended while awaiting decisions on the restructuring.

[7]   On April 1, 2001, National Archives and the National Library were merged to form the new entity of Information Technology Services. A reclassification was necessary to correct an inequitable situation where employees classified in the CS group were performing the same tasks as employees classified as AS. It was agreed that the reclassification would be retroactive to October 1998 (Exhibit G-9).

[8]   The position of technical consultant in Information Technology Services was reclassified and the grievors were informed on September 14, 2001, that their positions had been reclassified to the CS-1 group and level and that this reclassification was retroactive to October 1, 1998 (Exhibit G-10). They were informed by their employer of their appointment to the technical consultant positions (CS-1 group and level) and of their new salary on September 18, 2001 (Exhibit G-11).

[9]    The employer provided them with a detailed calculation of the amounts owing to them as a result of the retroactive reclassification of their positions (Exhibit G-7). In that document, the amount of terminable allowance to which they are entitled was calculated from May 1999 (Exhibit G-7).

[10]   On October 9, 2001, the employees affected by the reclassification asked when they would receive payment for the terminable allowance for the period from October 1, 1998, to August 31, 2001. The employer replied on October 11, 2001, that the terminable allowance was payable only from the date of the notice announcing the reclassification decision and not from the effective date of the reclassification and that, accordingly, no retroactive payment would be made to them (Exhibit G-12).

[11]   During his testimony, Denis Martel explained the reasoning behind the employer's decision. The employer applied section 22 of the Public Service Employment Act (PSEA), which stipulates:

... An appointment under this Act takes effect on the date specified in the instrument of appointment, which date may be any date before, on or after the date of the instrument...

[12]   In addition, the Regulations respecting pay on reclassification or conversion (Exhibit G-18) stipulate that retroactivity applies to rates of pay as per the following paragraphs:

Part II - Reclassification to a group and/or level having a higher maximum rate of pay

12. (1) Where a position is to be reclassified to a group and/or level having a higher attainable maximum rate of pay, the effective date of the reclassification will be determined by the authorized classification authority, taking into consideration the date on which the current duties and responsibilities were assigned to the position.

(2) The rate of pay and the salary increment date of the employee assigned to the new level of the position under subsection (1) shall be calculated in accordance with the collective agreement or pay plan or the

Public Service Terms and Conditions of Employment Regulations as applicable.

...

[13]   The memoranda of understanding appended to the collective agreements state that the terminable allowance does not form part of the employee's salary (clause 1(ii) of the 1997 memorandum; clause 1(b) of the 1999 and 2001 memoranda). Accordingly, the employer, by stipulating in the instrument of appointment (Exhibit G-11) that the salary would be retroactive to October 1, 1998, did not want to make the terminable allowance retroactive.

[14]   In addition, the memoranda of understanding state that "An employee shall receive the terminable allowance. . ." without defining the word "employee". Therefore, it is necessary to refer to the collective agreements, which define "employee" as follows:

"employee" means a person so defined in the Public Service Staff Relations Act and who is a member of the bargaining unit."

(clause 1(g) of the 1997 agreement and 2.01(e) of the 1999 and 2001 agreements)

[15]   Since membership in the bargaining unit is a situation of fact that takes effect on appointment and it cannot be applied retroactively, the grievors cannot be considered members of this bargaining unit of the CS group until the date of their appointment, that is, September 18, 2001. Given these elements, it is the employer's view that it cannot give entitlement to the terminable allowance retroactively.

Arguments

For the grievors

[16]   The representative for the Professional Institute submits that the Public Service Staff Relations Act defines remuneration as follows:

"remuneration" includes a daily or other allowance for the performance of the duties of a position or office.

[17]   The Public Service Employment Act (PSEA) states that an appointment takes effect on the date specified in the instrument of appointment. Section 22 of the PSEA reads as follows:

Effective date of appointment

22. An appointment under this Act takes effect on the date specified in the instrument of appointment, which date may be any date before, on or after the date of the instrument.

[18]   In these matters, the instrument of appointment, submitted as Exhibit G-11, is dated September 18, 2001, and states that the reclassification takes effect on October 1, 1998.

[19]   Under the Terms and Conditions of Employment Policy and the Public Service Terms and Conditions of Employment Regulations, remuneration means pay and allowances. The term "remuneration" may not be strictly limited to pay.

[20]   The Regulations respecting pay on reclassification or conversion state that the effective date of the reclassification corresponds to the date on which the duties and responsibilities were assigned to the position (subsection 12.1, Exhibit G-18). The duties and responsibilities had been assumed since October 1998 in the instant cases and the remuneration must therefore apply retroactively from that date.

[21]   Appendix F of the 1997 collective agreement (Exhibit G-14) states that the terminable allowance does not form part of an employee's salary (clause 1(ii)). The wording of this memorandum of understanding does not stipulate that the terminable allowance does not form part of an employee's remuneration. The same wording is used in clause 1(b) of Appendix E of the 1999 collective agreement (Exhibit G-15) and the 2001 agreement (Exhibit G-16).

[22]   Adjudicator J. Galipeau acknowledged in Guétré and the National Film Board of Canada (Board file no. 166-2-12642) that the bilingual bonus can be collected retroactively in the case of a retroactive reclassification. In the decision by adjudicator J.-M. Cantin in Gagnon and the Treasury Board (Board file nos. 166-2-16987 to 17013), the performance bonus is also subject to retroactivity.

[23]   Deputy Chair Marguerite-Marie Galipeau states that the terminable allowance does not form part of the employee's salary and therefore it is not salary in Janveau and the Treasury Board (2002 PSSRB 2). The arguments submitted by the employer linked the payment of the terminable allowance to membership in the bargaining unit.

For the employer

[24]   The employer argues that the PSEA states that an appointment takes effect on the date specified in the instrument of appointment. September 18, 2001, is the effective date of the appointment (Exhibit G-11). The reclassification resulted in retroactive entitlement to the rate of pay only. The fact that the instrument of appointment provides for retroactive payment of remuneration does not mean that the appointment itself is retroactive. The date of the appointment must be distinguished from the effective date of the reclassification.

[25]   According to the employer, the grievors became members of the CS bargaining unit on the date of appointment, that is, September 18, 2001. They cannot be considered members of the bargaining unit on October 1, 1998, as nothing can change this situation of fact prior to the appointment. For this reason, they do not meet the elements of the definition of employee specified in the collective agreement and are not entitled to the benefits of the collective agreement.

[26]   Under clause (d) of the memorandum of understanding on the terminable allowance, a person who ceases to belong to the bargaining unit is no longer entitled to receive the terminable allowance. On the other hand, a person who becomes a member of a bargaining unit acquires the right to receive this allowance. The person becomes a member of the bargaining unit on the date of appointment (September 18, 2001) and not on the retroactive date for the purposes of remuneration.

[27]   The Regulations respecting pay on reclassification or conversion mention the related rate of pay set out in the salary grid of the applicable collective agreement. The terminable allowance does not form part of the employee's salary according to the memorandum of understanding on the terminable allowance. The decision in Janveau (supra) confirmed that the terminable allowance does not form part of the employee's salary and that the employee must be a member of the bargaining unit to be entitled to receive it.

[28]   In Professional Association of Foreign Service Officers v. Canada (2003 FCA 2), the instrument of appointment corresponds to the offer of appointment accepted by the employee. In the instant cases, this instrument of appointment is dated September 18, 2001. In Andrew Rooney and the Treasury Board (Board file no. 166-2-25979), the adjudicator examines the intent of the parties with respect to the retroactivity of a reclassification and limits it to the rate of pay only. In the instant grievances, the retroactivity must similarly be strictly limited to the rate of pay.

Reply of the grievors

[29]   In reply, the representative for the grievors pointed out that in Professional Association of Foreign Service Officers (supra), the court concluded that there were no other documents attesting to another date of appointment. No other scope should be given to that decision.

[30]   As for the decision in Andrew Rooney (supra), it deals only with overtime and cannot apply to the instant grievances, which relate to a totally different question, that is, the terminable allowance.

Reasons for decision

[31]   In these matters, the grievors are claiming payment of the terminable allowance retroactive to October 1, 1998.

[32]   The evidence shows that the grievors were classified in positions of the AS group in 1998. Under the new classification system (UCS - Universal Classification Standard), which was to be introduced, the grievors were asked to verify whether their new job descriptions were up to date (April 9, 1998, Exhibit G-2). It was found that new tasks had to be added to the descriptions (Exhibit G-3) and that these changes would be considered for a reclassification (Exhibit G-4).

[33]   This job description review was suspended until the restructuring of the systems groups (Exhibit G-6). In April 2001, technical services at the National Library and at the National Archives were merged to form a new technical services section (Exhibit G-9). On September 6, 2001, the employer noted that employees classified in the AS group were performing the same work as those classified in the CS group. It was decided to proceed with a reclassification to correct the inequity of this situation and that the reclassification should be retroactive to October 1998 (Exhibit G-9).

[34]   The grievors were informed on September 14, 2001, that their job descriptions had been submitted for classification purposes and that their positions had been classified at the CS-01 group and level as of October 1, 1998 (Exhibit G-10). The employer confirmed their appointments to these positions on September 15, 2001, along with their salaries, which were increased for the period from October 1, 1998, to August 30, 2001, plus the bilingual bonus of $800 per year (Exhibit G-11).

[35]   After receiving the retroactivity cheques, the grievors asked the employer for retroactive payment of the terminable allowance prescribed in Appendix F of the collective agreement expiring April 30, 1999, and in Appendix E of the subsequent collective agreements (Exhibit G-12). The employer informed them of its refusal on October 11, 2001, stating that the terminable allowance is payable only as of the date of the letter of reclassification and not the effective date of the reclassification (Exhibit G-12).

[36]   The following extracts from the 2001 memorandum of understanding are relevant to the instant grievances:

Preamble

In an effort to resolve retention problems, the Employer will provide an Allowance to incumbents of positions at the CS-1 through CS-5 levels for the performance of duties in the Computer Systems Group.

Application

1. The parties agree that incumbents of positions identified above shall be eligible to receive a "Terminable Allowance" in the following amounts and subject to the following conditions:

   1. An Allowance to be paid in accordance with the following grid:

TERMINABLE ALLOWANCE

Monthly Payments in respect of
May 2000 to April 2002

CS-1

$139

...

2. The Terminable Allowance specified above does not form part of an employee's salary.

3. An employee shall be paid the Terminable Allowance for each calendar month for which the employee receives at least ten (10) days' pay;

4. The Allowance shall not be paid to or in respect of a person who ceased to be a member of the bargaining unit prior to the date of the signing of this Agreement.

5. Subject to (f) below, the amount of the Terminable Allowance payable is that amount specified in 1(a) for the level prescribed in the certificate of appointment of the employee's substantive position.

6. When an employee is required by the Employer to perform the duties of a higher classification within the CS bargaining unit in accordance with clause 47.05, the Terminable Allowance payable shall be proportionate to the time at each level.

2. Part-time employees shall be entitled to the Allowance on a pro rata basis.

...

(Exhibit G-16)

[37]   The 1999 memorandum of understanding contains the same stipulations, except with respect to the amount of the terminable allowances payable to incumbents of positions (Exhibit G-15). For incumbents of positions at the CS-1 group and level, the monthly payment of May 1999 is set at $438 and the monthly payment from June 1999 to April 2000 is set at $139.

[38]   The same stipulations appeared in the 1997 memorandum of understanding under paragraphs numbered differently (Exhibit G-14). The following elements are different:

An Allowance to be paid in accordance with the following grid:

TERMINABLE ALLOWANCE

Level	December 2, 1997	Monthly Payment January 1, 1998 to April 1, 1999*	April 30, 1999	Total
CS-1	$605	$130	$450	$3,135

...

* Allowance is effective on the 1st day of each month

...

(iii) Effective December 2, 1997, all employees in the bargaining unit shall receive the amount indicated in the grid outlined in (i) on December 2, 1997.

(iv) Effective January 1, 1998, an employee shall be paid the Terminable Allowance for each calendar month for which the employee receives at least ten (10) days' pay in the previous month.

(v) All employees in the bargaining unit on April 30, 1999, shall be paid the specified allowance due that date.

...

[39]   The following extracts from the Public Service Terms and Conditions of Employment Regulations (appended as Appendix A of the Terms and Conditions of Employment Policy, Exhibit G-17) are relevant to the instant grievances:

Interpretation

2. In these regulations,

...

employee means a person employed in Part 1 Service, classified in one of the occupational categories defined and listed in Section 2 of the

Public Service Staff Relations Act, (...)

...

allowance means compensation payable

(i) in respect of a position, or in respect of the positions in a group by reason of duties of a special nature,

(ii) for duties that an employee is required to perform in addition to the duties of his or her position (indemnité);

...

substantive level means the group and level to which an employee has been appointed or deployed under the

Public Service Employment Act, other than in an acting assignment situation (niveau de titularisation);

...

remuneration means pay and allowances (rémunération);

...

Remuneration - General

Entitlement to remuneration

20.(1) Subject to these regulations and any other enactment of the Treasury Board, an employee is entitled to be paid, for services rendered, the appropriate rate of pay in the relevant collective agreement or the rate approved by the Treasury Board for the group and level of the employee's classification.

20.(2) Unless modified by these regulations, the rates of pay and allowances and any other compensation established by the Treasury Board in effect immediately before the coming into force of these regulations and the conditions respecting their payment shall continue in effect.

...

[40]   I do not agree with the interpretation that the employer gives to the applicable acts and regulations and to the collective agreements and memoranda of understanding on the terminable allowance for the bargaining unit of the Computer Systems Group.

[41]   It is necessary to establish first who, under the memorandum of understanding, is entitled to receive the terminable allowance and, second, whether the grievors can be deemed to be beneficiaries. The preambles to the memoranda of understanding specifically state that two conditions must be met for incumbents to be offered this allowance:

• First, they must be incumbents of positions at the CS-1 through CS-5 levels; and

• Second, they must perform the duties of the Computer Systems Group.

[42]   The grievors met both of these conditions at the time of their reclassification, which informed them, on September 14, 2001, that their positions had been reclassified to the CS-01 group and level as of October 1, 1998 (Exhibit G-10). On September 6, 2001, the employer acknowledged that they had been performing the duties of the Computer Systems Group since October 1998 (Exhibit G-9). It was confirmed on September 18, 2001, that their appointments to positions of technical consultants applied for the period from October 1, 1998, to August 30, 2001, and that this would result in an adjustment of their annual salary, plus the bilingual bonus for this entire period (Exhibit G-11).

[43]   The preambles to the memoranda of understanding stipulate that the incumbents of the positions mentioned above (CS-1 through CS-5 group and level) and who perform the duties of those positions are eligible for a terminable allowance, the amount and conditions of which are subsequently set out. These conditions are reiterated in each of the three collective agreements applicable to these grievances. Article 1 of the memoranda reiterates the conditions that appear in the preamble. Consequently, I must conclude that the grievors must be deemed eligible for a terminable allowance because they were recognized as incumbents of positions at and as performing the duties of the CS-1 group and level by the reclassification of their positions and their appointments effective October 1, 1998.

[44]   In Dorothy Reid and the Treasury Board (2003 PSSRB 77), adjudicator Ken Norman found that entitlement to the terminable allowance is linked, for a specific period, to the performance of the duties and responsibilities of a position. On this particular point, adjudicator Ken Norman indicated his agreement with adjudicator J.W. Potter, who came to this conclusion in Gunn (Board file no. 166-2-28657).

[45]   More specifically, Gerald Gunn had claimed payment of the terminable allowance set out in Appendix F of the collective agreement of the Computer Systems Group. The memorandum of understanding is the same one that is in the instant cases. Vice-Chair J.W. Potter, acting as adjudicator in that matter, stated in his decision that the employee must meet the prior conditions set out in the preamble to the memorandum of understanding before being eligible for the allowance. The employee demonstrated to the adjudicator's satisfaction that he was the incumbent of the CS position on December 2. 1997, despite the fact that he was on unpaid leave on that date, and that he performed the duties of a position within the CS group (although he did not do so concretely on December 2, 1997) and therefore he met the prerequisites in the preamble.

[46]   I agree with adjudicators Potter and Norman that the employee is entitled to the terminable allowance if he meets the prerequisites set out in the preamble to the memoranda of understanding, that is, to be the incumbent of a CS classified position and to perform the duties of the position. In these matters, the grievors meet these two conditions and the employer acknowledged that these conditions had been met since October 1, 1998. The grievors meet the criteria making them eligible for the terminable allowance.

[47]   Part of the dispute arises from the use of the term "employee" in clauses 1(ii) to 1(v) of the 1997 memorandum of understanding and clauses 1(b) and (c) in the 1999 and 2001 memoranda of understanding. It is not my view that the use of the word "employee" in these clauses specifying the "conditions" for application can exclude the incumbents of CS-1 through CS-5 positions exercising the duties of the Computer Systems Group from eligibility for the terminable allowance as argued by the employer.

[48]   The purpose of the memorandum of understanding was to resolve retention problems among personnel in the Computer Systems Group bargaining unit and it flows that the collective agreement's definition of the word "employee" should apply to it. Only those employees who are members of the Computer Systems Group bargaining unit can benefit from the terms of the collective agreement and the memorandum of understanding included therein.

[49]   Thus, the use of the word "employee" in the memoranda of understanding does not alter in any way the fact that the parties manifestly intended to restrict entitlement to the terminable allowance to incumbents of positions classified as CS-1 through CS-5 and who performed the duties of the Computer Systems Group according to the very words of the memoranda of understanding. In other words, certain benefits of these collective agreements and their appendices may not be extended to persons who do not meet all of the elements set out in the definition of employee. The collective agreements would not be applicable to them pursuant to clause 1.01 because these persons would not be subject to the said collective agreements if they were not members of the bargaining unit.

[50]   The purpose of the reclassification of the persons from the AS group to the CS group must be taken into account. The memorandum dated September 6, 2001, states clearly that there is an inequity because persons classified in different groups and at different levels are performing exactly the same duties and responsibilities (Exhibit G-9) as a result of the merger of the National Archives systems group and the National Library systems group.

[51]   I consider the employer's position, that is, that the persons classified in the CS group retroactive to October 1, 1998, and performing duties recognized as being at that level since that date would not be eligible for a terminable allowance under the terms of the memorandum of understanding, is inconsistent and would continue the inequity mentioned in the memorandum of September 6, 2001, for the whole of the period from October 1, 1998, to August 30, 2001. In this eventuality, the new CS (former AS) would not receive the terminable allowance as the CS already classified at this level would, thereby continuing an inequity in terms of the amount of money received for the delivery of identical services by the two groups.

[52]   The grievors are persons employed in a service of the federal public administration and are subject to the Terms and Conditions of Employment Policy and Regulations. These regulations state that the word "remuneration" refers to pay and allowances. It further states that the employee is entitled to be paid the rate of pay and allowances for his group and level in accordance with the conditions respecting their payment (article 20). It is my view that these regulations allow for the grievors to receive an allowance in addition to the rate of pay stipulated in the collective agreement for their group and level.

[53]   Section 22 of the PSEA stipulates that the appointment takes effect on the date specified in the instrument of appointment. In the instant cases, the instrument of appointment specifies the effective date of October 1, 1998 (Exhibit G-11). This date is in keeping with subsection 12.1 of the Regulations respecting pay on reclassification or conversion, which states that the date on which the duties and responsibilities were assigned to the position must be taken into consideration. In the instant cases, the effective date of the reclassification respects this requirement, the employer having recognized that the duties had been assumed since October 1, 1998 (Exhibit G-9, G-10 and G-11). This means that the retroactive coming into effect of the reclassification was in keeping with the Regulations.

[54]   The employer's argument that the grievors cannot receive the terminable allowance retroactively because they cannot be deemed to be members of the bargaining unit retroactively cannot be accepted. Based on the facts, the employer agreed to apply certain elements of the collective agreement to the grievors retroactively, including the annual salary and bilingual bonus (Exhibit G-11). For the rate of pay set out in a collective agreement to apply to a person, that person must necessarily be subject to the collective agreement, specifically by meeting the conditions defining a subject employee, that is, to be an employee within the meaning of the Public Service Staff Relations Act and to be part of the bargaining unit pursuant to clause 2.01(g) of the 1997 agreement or clause 2.01(e) of the 1999 and 2001 agreements. By retroactively giving entitlement to the annual salary set out in the collective agreements entered into with the Professional Institute of the Public Service of Canada, the employer acknowledged that the grievors should have been deemed employees subject to the collective agreements and necessarily as being part of the bargaining unit of the Computer Systems Group, as defined in clause 2.01(a) of the 1997 agreement or clause 2.01(r) of the 1999 and 2001 agreements. The employer may not, at its discretion, acknowledge that the employees meet the conditions to be deemed employees subject to a collective agreement for only certain parts of that agreement. Accordingly, the grievors must be deemed members of the Computer Systems Group bargaining unit and covered by the collective agreements and their appendices and to have said status as of October 1, 1998.

[55]   Janveau (supra) considers the case of an employee who ceased to belong to the CS group. That situation is considerably different from the one in the instant cases and that decision may not be applied. The questions in the disputes submitted by the employer with respect to when a person is deemed to be an employee, the Professional Association of Foreign Service Officers (supra) and the retroactive application of overtime bonuses offer no assistance in resolving the instant grievances.

[56]   For these reasons, I allow the grievances and order the employer to pay the grievors the amounts of the terminable allowances to which they are entitled and to do so as of October 1, 1998.

[57]   I reserve jurisdiction for 90 days with respect to any issue that may arise from the application of this decision.

Léo-Paul Guindon
Board Member

OTTAWA, February 19, 2004.

P.S.S.R.B. Translation