FPSLREB Decisions

1.   On March 31, 2003, the Public Service Alliance of Canada (the bargaining agent) requested me, pursuant to section 77 of the Public Service Staff Relations Act (hereinafter referred to as the Act) to establish a conciliation board for the Statistical Survey Operations bargaining unit, comprised of all employees of the employer engaged in the carrying out of survey activities primarily outside of Statistics Canada offices. Included in the request was a list of the issues that remained outstanding between the parties. The list of issues is attached hereto as Schedule I.

2.   By letter dated April 15, 2003, the Public Service Staff Relations Board (PSSRB) wrote to the employer, enclosing a copy of the request of the bargaining agent, along with a copy of the terms and conditions of employment the bargaining agent wished to be referred to conciliation. The Board requested the employer to submit a written reply to the bargaining agent's request, together with any additional matters they wished to submit to the conciliation board.

3.   In a letter dated April 23, 2003, the employer responded that it opposed the inclusion of two outstanding issues in the terms of reference of the conciliation board. The employer contended that Annex G-MOU-Job Evaluation Plan and New-MOU-Term Employees, were not matters which could be considered by a conciliation board and therefore should not be included in the terms of reference. The employer agreed with the remainder of the list of outstanding issues provided by the bargaining agent and had no additional matters which it wished to refer to the conciliation board. The letter from the employer is attached as Schedule II.

4.   On April 24, 2003, the Board wrote to the bargaining agent, enclosing a copy of the letter from the employer dated the previous day, and requested that the bargaining agent communicate its' position on the matter to the Board. The bargaining agent responded by letter dated May 7, 2003, indicating that it considered the two matters to be matters that were legitimately the subject of collective bargaining and indicating that it was unclear as to the reasons why these matters should be excluded from the terms of reference. The bargaining agent indicated that these matters should be decided upon through an oral hearing.

5.   The Board wrote to the parties on May 29, 2003, requesting additional information from each of them. The bargaining agent was asked to clarify the nature of the dispute regarding the two Memorandums of Understanding that it wished to place before the conciliation board whereas the employer was requested to explain the nature of its objection with regard to the submission of these two items to the conciliation board.

6.   The bargaining agent responded in a letter dated June 5, 2003, which is attached hereto as Schedule III. The PSAC, in its response, contends that the proposals in dispute can be referred to a conciliation board and form part of their terms of reference. In support of its position, the bargaining agent referred the board to two decisions of the Federal Court: Public Service Alliance of Canada v. Canada (Treasury Board) [1987] 2 F.C. 471 and Public Service Alliance of Canada v. Canada (Treasury Board) (1987), 76 N.R. 229. The bargaining agent also stated that since the issuance of the above-named decisions, the Chairperson of the Board has consistently held that, because a conciliation board only has the authority to make non-binding recommendations (unless the parties agree otherwise), proposals which fall within section 7 of the PSSRA can be referred to a conciliation board: Education Group Terms of Reference (Board file No. 190-2-154) and PSAC Treasury Board Table II bargaining units Terms of Reference (Board file no. 190-2-267 to 280).

7.   The response of the employer is dated June 20, 2003. In its response, the employer argued that the proposal regarding term employees relates to the standards, procedures or processes governing the appointment of employees contrary to subsection 87(3) of the PSSRA. With regard to the Job Evaluation Plan, it agreed that section 7 of the Act does not constitute a bar to the referral of the bargaining agent's proposal to the conciliation board. However, the employer submitted that the Chairperson of the PSSRB should exercise his discretionary authority under section 84 of the Act, and not refer the disputed proposals to the conciliation board. The employer explains the reasons for this request in its response, which is attached as Schedule IV.

8.   Having carefully considered the submissions of the parties as well as the relevant provisions of the PSSRA and the jurisprudence, I have decided to refer the disputed proposal regarding the Job Evaluation Plan to you but have decided not to refer the disputed proposal regarding Term Employees. I have made this decision for the following reasons.

Decision on the proposal regarding the Job Evaluation Plan

9.   At the outset, the employer formulated its objection to the inclusion of this proposal in terms of section 7 of the Act. The two Federal Court decisions cited by the bargaining agent have established that proposals that fall within section 7 of the PSSRA can nonetheless be made legitimate subjects of bargaining. In light of these pronouncements, I believe that such proposals can be referred to a conciliation board that only has the authority to make recommendations that are binding on neither party. Indeed, the final response of the employer now explicitly recognizes that such is the case.

10.   Furthermore, I am mindful of the fact that since the issuance of these decisions of the Federal Court of Appeal, the Chairperson of the Public Service Staff Relations Board has consistently referred proposals to the conciliation board where the only objection raised by the employer was that they violated the prohibitions contained in section 7. I do not believe that the circumstances in this case are such as to convince me that I should exercise my discretionary authority as outlined in paragraph 84 of the PSSRA and delete the issue concerning the Job Evaluation Plan from the terms of reference. Such a decision on my part would be a departure from years of established Board practice and while I would be prepared to do so in certain circumstances, I am not convinced that this is an appropriate case for so doing.

11.   In addition, I would draw the attention of the parties to my decision in Terms of Reference of Conciliation Board (Board file no. 190-2-267 to 280). In this decision, I held that a disputed proposal entitled "New Article Universal Classification Standard Memorandum of Agreement" could be referred to a conciliation board. While the employer in that case contested the jurisdiction of the conciliation board to consider the proposal in issue, which this employer does not do in this case, the proposal in issue concerned the development of a new classification system, as it does in this case. I have not been persuaded by the employer that its particular circumstances regarding this proposal would justify the exercise of my discretion at this time.

12.   The employer objects to the inclusion of the issue of the Job Evaluation Plan as it alleges that the MOU on this issue is in fact a disguised way of achieving pay equity. It states that a pay equity complaint on this issue is presently before the CHRC and that the employer will take no action on this issue until such time as the matter is resolved by the courts. Even if this is in fact the case, I see no reason why the bargaining agent should be precluded from attempting to resolve this issue for the future through another legal means. Given the employer's expressed reaction to these issues, it may be that the inclusion of the MOU on the Job Evaluation Plan in the terms of reference will do nothing to change the employer's mind on the issue. However, I do not consider that the exercise of my discretion should be automatic in cases where there is little probability of the parties coming to agreement on the issue as a result of conciliation. To proceed on such a basis would allow the parties to in effect dictate the terms of reference simply by formulating strong objections to their inclusion by the Board. While the exercise of discretion by the Chairperson under s. 84 has been considered in the past, it remains an exceptional circumstance and I have been unable to find any case in which the Chair agreed to exercise such discretion.

13.   I would refer the parties to the following decision of Mr. Ian Deans: In the Matter of the Public Service Staff Relations Act and a dispute affecting the Public Service Alliance of Canada and Treasury Board in respect of the employees in the following bargaining units: General Technical, Primary Products Inspection and Technical Inspection (Board file no. 190-2-257 to 259). In this case, the employer objected to the inclusion of various proposals in the terms of reference. While they acknowledged that there was no statutory bar to the referral of these matters to the conciliation board, the employer argued that the Chair had the discretionary authority not to refer them and should not do so since under the circumstances, it would serve no useful purpose to refer them as the employer had no intention of surrendering any of the rights reserved to it under section 7 of the Act. In support of its argument, the employer referred to a decision of Mr. Justice Dubé in Canadian Union of Postal Workers v. J.H. Brown et al., [1980] 2 F.C. 435 (Federal Court, Trial Division). At page 440, Justice Dubé stated:

It must therefore be concluded that the Chairman has a certain amount of discretion under section 83 (now section 84). His power is not limited to referring all subjects automatically to the board. He can amend the statement by adding or deleting matters which in his view are contrary to the provisions of the Act, as he deems necessary or advisable in the interest of assisting the parties in reaching agreement.

Mr. Deans found that this decision clearly confirmed that the Chairperson must not refer to the conciliation board any matter which violates the prohibitions contained in the Act. But, at page 6, he goes on to state:

However, I do not believe that it is authority for the proposition that the Chairman has a discretion not to refer to the conciliation board any matter submitted by the parties for which there is no statutory prohibition. Although it is not necessary for me to decide that issue now, I very much doubt that I, as Chairman, have any such discretionary authority. However, even if I did, I would only exercise it in the most exceptional of circumstances.

I am in agreement with Mr. Deans that my discretionary authority should only be exercised in exceptional circumstances. I am not persuaded that the issue of the Job Evaluation Plan is a proper one for the exercise of my discretion under section 84 of the Act.

Decision on the proposal regarding Term Employees

14.   On the other hand, I have come to the opposite conclusion regarding the proposal that relates to Term Employees. The employer contends that this matter should not be included in the terms of the conciliation board because doing so would violate section 87(3) of the Act which provides as follows:

No report of a conciliation board shall contain any recommendation concerning the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, lay-off or termination of employment, other than by way of disciplinary action, of employees.

This section of the Act constitutes a statutory bar to the referral of certain matters to a conciliation board.

15.   It is my finding that the proposal in question clearly relates to "the standards, procedures or processes governing the appointment.of employees." According to the bargaining agent's own description of the matter, the proposal regarding term employees would mirror the present Treasury Board policy and would require the employer to appoint term employees on an indeterminate basis once they had been employed as a term employee for a cumulative working period of three years without a break in service longer than sixty consecutive calendar days. As such, its referral to the conciliation board is prohibited by subsection 87(3) of the PSSRA.

16.   For further clarity, your terms of reference are set out in Schedule I, attached hereto, with the exception of the proposal entitled "New-MOU-Term Employment".

Yvon Tarte,
Chairperson

OTTAWA, September 9, 2003.