FPSLREB Decisions
Decision Information
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Decision Content
- File: 585-03-1
In the Matter of an Interest Arbitration
Between
Canadian Nuclear Safety Commission
[Employer]
- and -
The Professional Institute of Public Service of Canada
[Union]
| Before: | M.B. Keller, Chair Audrey Lizotte-Lepage, Employer Nominee Larry Robbins, Union Nominee |
| Appearances: | Stephen Bird for the Employer Walter Belyea for the Union |
Hearing in Ottawa, March 31 and April 28, 2006.
The Canadian Nuclear Safety Commission (CNSC)’s mission is to regulate the use of nuclear energy and materials to protect health, safety, security and the environment and to respect Canada’s international commitments on the peaceful use of nuclear energy.
Under the Nuclear Safety and Control Act (NSCA), CNSC’s mandate involves four major areas:
regulation of the development, production and use of nuclear energy in Canada;
regulation of the production, possession, use and transport of nuclear substances, and the production, possession and use of prescribed equipment and prescribed information;
implementation of measures respecting international control of the development, productions, transport and use of nuclear energy and substances, including measures respecting the non-proliferation of nuclear weapons and nuclear explosive devices; and
dissemination of scientific, technical and regulatory information concerning the activities of the CNSC, and the effects on the environment, on the health and safety of persons, of the development, production, possession, transport and use of nuclear substances.
On May 31, 2000, the CNSC replaced the Atomic Energy Control Board (AECB), which had served as the regulator of Canada’s nuclear industry for more than 50 years. The CNSC’s creation followed the coming into force of the NSCA and its regulations. The new law represents the first major overhaul of Canada’s nuclear regulatory regime since the AECB was established. The new legislation under which the CNSC operates mirrors the latest scientific knowledge in the areas of health, safety, security and environmental protection.
The President and CEO of the CNSC has overall responsibility for the delivery of CNSC’s business lines.
CNSC is a federal government agency listed as a separate agency in Schedule V of the Financial Administration Act and as defined in section 2 of the PSLRA. Section 16 of the NSCA authorizes CNSC to set the terms and conditions of employment for its employees.
“The Commission may, notwithstanding any other Act of Parliament, appoint and employ such professional, scientific, technical or other officers or employees as it considers necessary for the purposes of this Act and may establish the terms and conditions of their employment and, in consultation with the Treasury Board, fix their remuneration.” [Emphasis added]
There are approximately 343 unionized employees at CNSC, in a single bargaining unit. Currently, employees are classified according to CNSC’s classification system, and occupy levels RL-5 to RL-7, RL-1 to RL-4 employees are unrepresented.
Paragraph 44(1)(i) of the NSCA, permits CNSC, with the approval of the Governor in Council, to make regulations:
“prescribing the fees that may be charged for the provision, by the Commission, of information, products and services”.
Nuclear Safety and Control Act, 1997 c.9, para. 44(1)(i) [Book of Authorities, Tab 1]
PIPSC was certified by the Public Service Staff Relations Board on June 14, 2004. PIPSC gave CNSC notice to bargain collectively for this first collective agreement, as required by section 50 of the PSSRA, on June 14, 2004. The parties exchanged proposals on September 13, 2004 and commenced negotiations immediately. The parties met on 14 days over the following three-month period.
On December 17, 2004, PIPSC requested conciliation. The parties met for conciliation on 5 occasions. The parties managed to agree to certain discreet issues but were unable to come to a complete agreement.
On July 22, 2005, PIPSC requested the Establishment of an Arbitration Board, pursuant to subsection 136 of the PSLRA. The employer responded by submitting a “Notice of Request for the Arbitration of Additional Matters”, pursuant to subsection 136(5).
In fashioning this Award, the Board has taken into account the preliminary briefs filed by the parties, its oral submission as well as subsidiary briefs. The documents submitted to the Board were voluminous and comprehensive.
The over-all impression left with the Board, after reading the briefs and submissions and listening to the viva-voce presentation is that there is a great deal of mistrust between the parties. Their respective views and approaches on virtually every issue are almost polar opposites. The Board has a genuine concern that improved dialogue where the parties hear each other, rather than just listen to one another, is essential to restore good employer-employee relations.
Although the Board has attempted to reconcile the differences between the parties it has not always been able to do so. This is particularly evident in those areas where a choice had to be made between adopting traditional approaches to compensation in a unionized environment versus non-traditional approaches.
Our first day of hearing was devoted to mediation. On that day, the parties were able to resolve some of the outstanding issues.
This Award incorporates by reference those matters agreed to by the parties to the date of the Award.
| ARTICLE 2.01 | DEFINITIONS | |||
| No Award is made. | ||||
| ARTICLE 2.02 | DEFINITIONS | |||
| The Board Awards as follows: | ||||
| “2.02 | Except as otherwise provided in this Agreement, expressions used in this Agreement, | |||
| (a) | if defined in the Public Service Labour Relations Act, have the same meaning as given to them in the Public Service Labour Relations Act, | |||
| and | ||||
| (b) | if defined in the Interpretation Act, but not defined in the Public Service Labour Relations Act, have the same meaning as given to them in the Interpretation Act.” | |||
| ARTICLE 5 - MANAGEMENT RIGHTS | ||||
| The Board Awards as follows: | ||||
| “Management Rights | ||||
| 5.01 | All functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this agreement are recognized by the Institute as being retained by the employer.” | |||
| ARTICLE 7 - NO DISCRIMINATION | ||||
| The Board Awards as follows: | ||||
| “No Discrimination | ||||
| 7.01 | There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethic origin, religious affiliation, sex, sexual orientation, family status, marital status, mental or physical disability, conviction for which a pardon has been granted or membership or activity in the Institute.” | |||
| ARTICLE 8.01 - SEXUAL HARASSMENT | ||||
| The Board Awards as follows, to be re-numbered Article 7.02: | ||||
| “Sexual Harassment | ||||
| 8.01 | The Institute and the Employer recognize the right of employees to work in an environment free from sexual harassment and agree that sexual harassment will not be tolerated in the workplace.” | |||
| ARTICLE 10.05 - OVERTIME MEAL ALLOWANCE | ||||
| The Board Awards as follows: | ||||
| “Overtime Meal Allowances | ||||
| 10.05 | (a) | An employee who works three (3) or more hours of overtime immediately before or immediately following scheduled hours of work shall be reimbursed for one meal in the amount of $10.00, except where free meals are provided. | ||
| (b) | When an employee works overtime continuously extending four (4) hours or more beyond the period provided in (a) above, the employee shall be reimbursed for one additional meal in the amount of $10.00, except where free meals are provided. Reasonable time with pay, to be determined by the Employer, shall be allowed the employee in order to take a meal break either at or adjacent to the employee’s place of work. | |||
| (c) | Sub-clauses 10.05(a) and (b) shall not apply to an employee who is in travel status which entitles the employee to claim expenses for lodging and/or meals.” | |||
| ARTICLE 10.06 - CALL-BACK | ||||
| The Board Awards as follows: | ||||
| “Call-Back | ||||
| 10.06 | When an employee is called back and is required to report to a place of work to perform duties not previously scheduled, the employee shall be entitled to the greater of: | |||
| (a) | a minimum of three (3) hours pay at the applicable overtime rate, | |||
| or | ||||
| (b) | compensation at time and one-half (1½) for the actual hours worked. | |||
| Employees called back to work under this clause will be entitled to reimbursement of the mileage allowance at the rate normally paid to an employee when authorized by the Employer to use a personal automobile or out-of-pocket expenses for commercial transportation, as applicable.” | ||||
| ARTICLE 11 - TRAVELLING TIME | ||||
| The Board Awards as follows: | ||||
| “Article 11 - Travelling Time | ||||
| 11.01 | When the Employer requires an employee to travel for the purpose of performing duties, the employee shall be compensated in the following manner: | |||
| (a) | on a normal working day on which an employee travels but does not work, the employee shall receive regular pay for the day. | |||
| (b) | on a normal working day on which an employee travels and works, the employee shall be paid: | |||
| (i) | regular pay for the day for a combined period of travel and work not exceeding seven and one-half (7 ½) hours, | |||
| and | ||||
| (ii) | at the applicable overtime rate for additional travel time in excess of a seven and one-half (7 ½) hour period of work and travel, with a maximum payment for such additional travel time not to exceed twelve (12) hours pay in any day, calculated at the straight-time rate. | |||
| (c) | On a day of rest or on a designated paid holiday, the employee shall be paid at the applicable overtime rate for hours travelled to a maximum payment of twelve (12) hours pay, calculated at the straight-time rate.” | |||
| ARTICLE 15.03 - PARENTAL AND FAMILY-RELATED LEAVE / MATERNITY ALLOWANCE | ||||
| The Board Awards as follows: | ||||
| Leave Without Pay for Care and Nurturing | ||||
| 15.03 | Subject to operational requirements, an employee shall be granted leave without pay for the care and nurturing of the employee’s pre-school age children; or the long term care of an ill or aged parent or a disabled child or other family member permanently residing in the employee’s household or with whom the employee permanently resides; in accordance with the following conditions: | |||
| (a) | an employee shall notify the Employer in writing four (4) weeks in advance of the commencement date of such leave; | |||
| (b) | leave granted under this clause shall be for a minimum period of three (3) weeks; | |||
| (c) | the total leave granted under this clause shall not exceed five (5) years during an employee’s total period of employment in the Public Service; | |||
| (d) | leave granted under this clause for a period of more than three (3) months shall be deducted from the calculation of “continuous employment” for the purpose of calculating severance pay and from the calculation of “service” for the purpose of calculating vacation leave; | |||
| (e) | time spent on such leave shall not be counted for pay increment purposes.” | |||
| ARTICLE 15.06 - LEAVE WITHOUT PAY FOR RELOCATION OF SPOUSE | ||||
| The Board Awards as follows: | ||||
| “15.06 | (a) | At the request of an employee, leave without pay for a minimum period of three (3) months and a maximum period of one (1) year may be granted to an employee whose spouse is relocated. | ||
| (b) | Leave without pay granted under this clause shall be deducted from the calculation of “continuous employment” for the purpose of calculating severance pay and “service” for the purpose of calculating vacation leave for the employee involved. Time spent on such leave shall not count for pay increment purposes.” | |||
| ARTICLE 17.01 - LEAVE GENERAL | ||||
| The Board Awards as follows: | ||||
| “17.01 | When an employee who has two or more years of continuous service has been granted more vacation or sick leave with pay than the employee has earned is terminated by death or layoff, the employee is considered to have earned the amount of leave with pay granted.” | |||
| ARTICLE 21 - CHECK-OFF | ||||
| The Board Awards as follows: | ||||
| “21.01 | The Employer will as a condition of employment deduct in each month an amount equal to the monthly membership dues of the Institute from the pay of each employee in the bargaining unit. Where an employee does not have sufficient earnings in respect of a month to permit deductions under this Article, the Employer will not make such deductions for that month from subsequent salary.” | |||
| No Award is made with respect to the Employer’s Article 21.10 on reimbursement for administrative costs. | ||||
| ARTICLE 22.03 - USE OF EMPLOYER’S FACILITIES | ||||
| The Board Awards as follows: | ||||
| “The Employer shall provide physical bulletin board space for the posting of official Institute notices. Notices or other material shall require prior approval and the Employer shall have the right to refuse the posting of any information that it considers adverse to its interests or the interest of any of its representatives. Such permission shall not be unreasonably withheld.” | ||||
| ARTICLE 29 - STATEMENT OF DUTIES | ||||
| No Award is made. | ||||
| ARTICLE 31 - TECHNOLOGICAL CHANGE | ||||
| The Board Awards as follows: | ||||
| “31.01 | The parties will consult as far as possible in advance of the introduction of technological change in order to find ways and means of maximizing the benefits of these changes on operations and minimizing any adverse effects on employees which might result from such changes. Consultation will occur at a Joint Consultation Committee (see Article 26) or through such other means as may be agreed to by the Institute and the Employer. | |||
| 31.03 | When as a result of technological change, an employee is required to attain new skills or knowledge in order to perform duties required by the Employer, the Employer will make every reasonable effort to provide the necessary training during the employee’s working hours.” | |||
| ARTICLE 39 - PAY ADMINISTRATION | ||||
| The Board is satisfied that a salary grid, as proposed by the union is the norm for both its and the employer’s comparators. However, we are cognizant of the needs, as explained by the employer, and have tried to accomodate these within a traditional salary grid, based on past usage and perceived need. We are satisfied that the Award addresses the expressed need of the employer, as shown in the brief, within a salary grid. | ||||
| 39.01 | ||||
| The Board Awards as follows: | ||||
| “General | ||||
| 39.01 | Each employee is entitled to be paid for services rendered according to the salary specified in Appendix “1" for the level of the employee’s substantive position. If, during the term of this Agreement, a new classification is established and implemented by the Employer, the Employer shall, before applying rates of pay to the new levels resulting from the application of the standard, negotiate with the Institute the rates of pay and the rules affecting the pay of employees on their movement to the new levels.” | |||
| 39.02 | ||||
| The Board Awards as follows: | ||||
| “When two or more of the following actions occur on the same date, namely, appointment, pay increment and an adjustment to the salary grid, the employee’s rate of pay shall be calculated in the following sequence: | ||||
| (a) | the employee shall receive the pay increment; | |||
| (b) | the employee’s rate of pay shall be revised in accordance with the adjustment to the salary grid; | |||
| (c) | the employee’s rate of pay on appointment shall be established in accordance with this Agreement. | |||
| ”39.04 | ||||
| The Board Awards as follows: | ||||
| “Pay Increment Administration | ||||
| 39.04 | An employee other than an employee whose performance is evaluated as unsatisfactory, shall be granted a pay increment on April 1 st of each year until the maximum rate of pay established for the employee’s substantive position is reached. An employee whose anniversary date of appointment is less than twelve (12) months prior to April 1 st, will have their pay increment pro-rated by the number of months, rounded to the nearest month, since appointment.” | |||
| 39.05 | ||||
| The Board Awards as follows: | ||||
| “Rate of Pay on Promotion or Upward Reclassification | ||||
| 39.05 | An employee in the bargaining unit who is promoted or whose position is reclassified to a higher level shall be paid at the rate of pay in the new salary grid which is nearest to the rate the employee was receiving immediately before the promotion or reclassification that gives an increase in pay of not less than 4.0%.” | |||
| 39.06 | ||||
| The Board Awards as follows: | ||||
| “Rate of Pay on Demotion | ||||
| 39.06 | On demotion, an employee is paid at the rate of pay in the salary grid applicable to the employee’s new position/classification which is nearest to, or equal to the employee’s former rate of pay.” | |||
| 39.07 | ||||
| The Board Awards as follows: | ||||
| “Rate of Pay on Reclassification to a Level with a Lower Maximum Rate | ||||
| 39.07 | (a) | where an employee’s position is reclassified to a level with a lower maximum rate of pay, the position shall be deemed to have retained the former classification. In respect to the pay of the employee, this may be cited as Salary Protection Status and shall apply for a period of three (3) years from the effective date of the reclassification or until the employee is appointed to a position at the same level as the employee’s former classification. | ||
| (b) | In the event that an employee has not been appointed to a position within the three (3) year period specified in 39.07 (a), the salary of the employee, at the end of the three year period, shall be reduced at the rate of three per cent (3%) per annum until such time as it reaches the maximum rate of pay for the new classification of the position. The first reduction shall be made on the third anniversary after the effective date of the downward reclassification with any subsequent reductions being made on the same date in any following years that are required for the salary to reach the maximum rate of pay for the new classification of the position. Should, in any year, the difference between the employee’s salary and the maximum rate of pay for the new classification of the position be less than three per cent, the reduction shall only to the maximum.” | |||
| 39.08 | ||||
| The Board Awards as follows: | ||||
| “Retroactivity | ||||
| 39.08 | Where the rates of pay set forth in Appendix “1" have an effective date prior to the date of signing of the collective agreement the following shall apply: | |||
| (a) | “retroactive period” for the purpose of clauses (b) to (d) means the period commencing on the effective date of the retroactive upward revision in rates of pay and ending on the day the Agreement is signed or when an arbitral award is rendered therefore; | |||
| (b) | a retroactive upward revision in rates of pay shall apply to employees, former employees or in case of death, the estates of former employees, who were employees in the bargaining unit during the retroactive period; | |||
| (c) | only rates of pay and compensation for overtime which has been paid to an employee during the retroactive period will be recomputed and the difference between the amount paid on the old rates of pay and the amount payable on the new rates of pay will be paid to the employee; | |||
| (d) | for former employees, or in the case of death, for the former employees’ representatives, the Employer shall send such retroactive payments to the last known address. If the payment is returned, the Employer will hold such payment for a period of one year after which the Employer’s obligation for payment ceases.” | |||
| 39.09 | ||||
| No Award is made with respect to union proposal article 39.09(d). | ||||
| 39.09 (f) | ||||
| The Board Awards as follows: | ||||
| “The supervisory differential does not form part of an employee’s basic salary and for greater certainty without limiting the generality of the foregoing, will not be used to calculate acting pay, pay upon promotion, overtime or travel pay, maternity or parental SUB plan payments, payments of annual leave credits or severance payments.” | ||||
| Wages | ||||
| 1. | Effective April 1, 2005, there shall be a 3% increase across the board, except for employees at the maximum of their grid who shall receive a 4% increase. | |||
| 2. | Effective April 1, 2006, there shall be a 3% increase across the board, except for employees at the maximum of their grid who shall receive a 4% increase. | |||
| ADMINISTRATIVE NOTE: Subject to Article 39.04, a 4.8% incremental increase shall be granted, up to but not exceeding the maximum of the range, retroactively to April 1, 2006 for those employee who had not reached the maximum of their grid. This shall be applied prior to granting the above percentage increase. | ||||
| 3. | Effective April 1, 2007, all employees shall be slotted on to the new grid so that they receive an increase worth at least one step in the grid up to but not exceeding the maximum of the range, subject to Article 39.04. There shall then be a 2.5% increase across the board, except for employees at the maximum of their grid who shall receive a 3.5% increase. | |||
| The resulting salary schedules are attached as Appendix 1. | ||||
| VARIABLE PAY | ||||
| New Article - Placement to be determined by parties. | ||||
| The Board Awards as follows: | ||||
| “a) | Effective the day of the Award, the Employer may pay to an employee a lump sum payment over and above their normal salary on the grid to employees who possess scarce skills and qualifications where the inability to hire or retain such employees would have a significant negative impact on the ability of the Employer to fulfil its mandate. | |||
| b) | The number of employees referred to in paragraph a) may not exceed five percent (5%) of the bargaining unit. | |||
| c) | The Employer may exceed the five percent (5%) cap where there is a declared national emergency implicating the Employer. | |||
| d) | The above bonus must be renewed annually to remain in effect. | |||
| e) | This payment does not form part of an employee’s basic salary and for greater certainty without limiting the generality of the foregoing, will not be used to calculate acting pay, pay upon promotion, overtime or travel pay, maternity or parental SUB plan payments, payments of annual leave credits or severance payments.” | |||
| ARTICLE 40 - DURATION | ||||
| The Board Awards, pursuant to Article 156(3) of the Public Service Labour Relations Act, follows: | ||||
| “40.01 | The duration of this Agreement shall be from June 14, 2004 to March 31, 2008". | |||
The Board remains seized to the extent permitted by the Act.
Dated in Ottawa. this 20th day of November, 2006.
M.B. Keller, Chair
“Audrey Lizotte-Lepage” I Dissent in Part
Audrey Lizotte-Lepage, Employer Nominee
“Larry Robbins” I Dissent in Part
Larry Robbins, Union Nominee
APPENDIX 1
| LEVEL | MINIMUM | MAXIMUM |
| RL5 | 51719 | 69114 |
| RL6 | 60384 | 80690 |
| RL7 APP & SE | 70496 | 94206 |
| RL7 TS | 77406 | 103402 |
| LEVEL | MINIMUM | MAXIMUM |
| RL5 | 53271 | 71879 |
| RL6 | 62196 | 83918 |
| RL7 APP & SE | 72611 | 97974 |
| RL7 TS | 79728 | 107538 |
| LEVEL | START | 1 YR | 2 YR | 3 YR | 4 YR | 5 YR | MAX |
| RL5 | 54603 | 57224 | 59971 | 62849 | 65866 | 69028 | 74395 |
| RL6 | 63751 | 66811 | 70018 | 73379 | 76901 | 80592 | 86855 |
| RL7 APP/SE | 74426 | 77998 | 81742 | 85666 | 89778 | 94087 | 101403 |
| RL7 TS | 81721 | 85644 | 89755 | 94063 | 98578 | 103309 | 111302 |