FPSLREB Decisions

Introduction

[1] The Terms of Reference of this Arbitration Board were established by the Chair of the Public Service Labour Relations Board (the “PSLRB”) on May 22, 2012 (2012 PSLRB 59).

[2] On the morning of the first day of the hearing of this matter, the parties (with the assistance of the nominees) came to an agreement on a number of matters in dispute. The parties requested that the Arbitration Board include these resolved issues in this Award.

Bargaining History

[3] The Research Group (RE) Collective Agreement expired on September 30, 2010. The Professional Institute of the Public Service of Canada (“PIPSC”) served notice to bargain on July 14, 2010. The parties met from December 13 to 15, 2010, March 8-10, May 30 to June 1, and September 12 to 14, 2011.

[4] The parties met again on November 29 to 30, 2011 with the assistance of a mediator of the PSLRB.

[5] On January 28, 2012, the PIPSC filed a request for establishment of an Arbitration Board.

The Research Group (RE) Bargaining Unit

[6] There are approximately 2,692 employees in the RE bargaining unit. The bargaining unit is made up of four occupational groups (the number of employees is in brackets):

Scientific Research: SE-RES and SE-REM (1,691)

Defence Scientific Service: DS (589)

Historical Research: HR (124)

Mathematics: MA (288)

Agreement of the Parties on Issues in Dispute

[7] The parties agreed to the following Articles in dispute and these terms are included in the Award on consent.

[8] Article 9 (Overtime): renewed without change.

[9] Article 10 (call-back): renewed without change.

[10] Article 18.02 (Bereavement Leave with Pay): the parties consented to the changes proposed by the employer and those changes are included in this award.

[11] Article 18.14 (Leave with pay for family-related responsibilities): the parties agreed to the bargaining agent’s proposal, amended as follows:

c. seven decimal five (7.5) hours out of the thirty-seven decimal five (37.5) hours stipulated in paragraph (d) may be used:

i.   to attend school functions, if the supervisor was notified of the functions as far in advance as possible;

ii. to provide for the employee's child in the case of an unforeseeable closure of the school or daycare facility;

iii. to attend an appointment with a legal or paralegal representative for non-employment related matters, or with a financial or other professional representative, if the supervisor was notified of the appointment as far in advance as possible.

d. The total leave with pay that may be granted under subparagraph (b) and (c) shall not exceed thirty seven decimal five (37.5) hours in a fiscal year.

[12] Article 38.02 (Standards of Discipline): renew without change.

[13] Article 38.04 (Standards of Discipline): the parties agreed to the employer’s proposal and those changes are included in this award.

[14] Article 40 (Part-time Employees): renew without change.

[15] Article 47.01 (Duration): the parties agreed to an expiry date of the new collective agreement of September 30, 2014.

[16] Article 47.03 (Implementation): renew without change.

Issues in Dispute

[17] In reaching a determination on the issues in dispute, the Arbitration Board is governed by section 148 of the Public Service Labour Relations Act:

148. In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;

(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(d) the need to establish compensation and other 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

(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

[18] The Arbitration Board has considered all of these factors in reaching its determination on the matters at issue.

Article 18.20 (b) and (c) (Other Leave With or Without Pay)

[19] The bargaining agent proposed an additional 37.5 hours of personal leave with pay per year (for a maximum of five years) for employees who qualify for an immediate annuity under the Public Service Superannuation Act. The bargaining agent submitted that this recognizes the fact that most employees in the bargaining unit start their employment later than most public service employees and so do not accumulate the same years of service.

[20] The employer opposed this proposal.  The employer submitted that this proposal was not present in any other public service agreement and that an existing program (pre-retirement transition leave) could address any need for leave. The employer also noted that employees in the RE Group receive an entitlement of four weeks of vacation a year at the commencement of employment.

[21] The Arbitration Board determines that the bargaining agent’s proposal shall not be included in the new collective agreement.

Article 20 (Severance Pay); Article 16 (Vacation Leave) and Appendix E (Workforce Adjustment)

[22] The employer proposes the elimination of severance pay provisions for cases of voluntary resignation and retirement.  Severance pay would continue to accumulate for reasons of death, lay-off and termination for incapacity or incompetence. Under the proposal, employees would have options of either cashing-out or freezing severance benefits accumulated up to the effective date of the new collective agreement.

[23] The employer proposes that in the event that the requested elimination of severance pay provisions is awarded by this arbitration board, an additional salary increase of 0.25% in year two and 0.5% in year four of the new collective agreement should be awarded.

[24] The employer’s proposed amendments to Article 16 and Appendix “E” of the collective agreement are consequential to the proposed changes to severance pay in Article 20.

[25] The employer submitted that in the present round of bargaining, the elimination of severance pay has either been freely negotiated or awarded by arbitration boards.

[26] The bargaining agent submitted that the severance article should be maintained. However, it submitted the following, should the arbitration board determine that the article should be amended to remove severance on resignation and retirement:

1. The accumulation of severance should continue until the last day of the agreement, or at least until the date of the arbitral award;
2. The salary upon which the severance pay-out is calculated should be the pay in effect after pay restructuring and economic pay increases have been implemented; and
3. Each group is awarded a change in pay, as set out in the bargaining agent’s position on pay.

[27] The Arbitration Board determines that the employer proposal and consequential amendments relating to severance pay shall be incorporated into the collective agreement.

[28] The Arbitration Board also determines that the employer proposal of an additional 0.25% increase in year two and an additional 0.5% increase in year four of the collective agreement shall be included in the new collective agreement (addressed below).

Article 22 (Registration Fees)

[29] The current Article states that the parties affirm “the importance of employees becoming members of and actively participating in the business and organization of relevant scientific and professional activities.” The article also provides for the payment of registration fees when membership is “a requirement for the continuation of the performance of the duties of the employee’s position”. The bargaining agent proposes a new clause that would provide for the payment of professional fees when such a membership is not a requirement for the continuation of the performance of the duties of the employee’s position, up to a maximum of $500 per year. The bargaining agent submitted that it would be content with a lower amount, as determined by the Arbitration Board.

[30] The bargaining agent relied on a clause in the agreement for the Architecture and Engineering Group (NR) that provides for reimbursement of fees where eligibility for membership in an organization or governing body is a “qualification specified in the Occupational Group Qualifications Standards for the NR Group”. The bargaining agent also relied on the Career Progression Management Framework for the SE-RES and HR Groups which lists membership and activity in professional societies as an indicator for assessing career promotion or advancement. In addition, the bargaining agent also relied on the DS pay plan which refers to participation in professional societies at the DS-7 level.

[31] The employer submitted that the Qualification Standards for the RE Group does not require membership in an organization or governing body. Since membership in an organization is not a requirement for the continuing performance of an employee’s duties in the RE Group, the employer opposed the proposal.

[32] The Arbitration Board declines to award the bargaining agent’s proposal.  

Article 30 (Information)

[33] The employer proposed that access to the collective agreement be electronic access only. The bargaining agent did not disagree with electronic access, but proposed that the employer be required to advise employees of a new collective agreement and where it could be accessed electronically. The bargaining agent also proposed that hard copies should be made available on request.

[34] The Arbitration Board has determined that the new collective agreement shall include the following amended article:

30.02 The Employer agrees to supply each employee with a copy of the Collective Agreement and any amendments thereto. For the purposes of satisfying the Employer’s obligations under this clause, employees may be given electronic access to this Agreement, provided that the Employer advises each employee that the Agreement is available electronically and how it can be accessed.

Article 43 (Sexual Harassment)

[35] The bargaining agent proposed that personal harassment, intimidation, abuse of authority, abusive behaviour and violence be added to this Article.

[36] The employer submitted that a revised Treasury Board Directive and Policy on Harassment had been recently introduced and that bargaining agents had been consulted in the development of the revised policy and directive. These new instruments had not been tested yet.

[37] The Arbitration Board has determined that Article 43 shall be renewed without change.

Rates of Pay

[38] The employer submits that the salary increases in the remaining three years of the new collective agreement should be 1.5% per year (with an additional 0.25% in year two and 0.5% in year four, if the severance pay proposal is accepted).

[39] The bargaining agent has proposed the rolling-in of terminable allowances to base salary and a restructuring of the pay grid for all groups, effective October 1, 2010. In addition, the bargaining agent proposes annual increases of 1.5% for all groups.

Terminable Allowances

[40] The DS group has had a terminable allowance since 1999. Those SE employees working at the Communications Research Centre (CRC), approximately 57 employees, have also received a terminable allowance since 1999. The terminable allowance increased from $7,000 in 1999 to $8,500 in 2004 for SE employees.

[41] The HR subgroup has had a terminable allowance of $4,000 since 2004.

[42] The employer and the bargaining agent have not proposed any increase to the terminable allowances.

[43] Given their longstanding nature, the Arbitration Board considers it appropriate to roll the terminable allowances into base salary for the DS and HR sub-groups, effective the date of this award. 

[44] In the case of the SE-RES group, the terminable allowance is only paid to those SE-RES employees at CRC. The bargaining agent proposed a separate pay scale for these employees that would include the terminable allowance. The Arbitration Board declines to award the bargaining agent’s proposal. Accordingly, the Arbitration Board has determined that the terminable allowance for the SE-RES group will be renewed.

Pay restructuring

[45] The bargaining agent has proposed a pay restructuring for all sub-groups. The bargaining agent made arguments that the pay for each group was behind comparator groups. The employer disagreed with those submissions, with the exception of the pay for some levels of the MA group.

[46] The employer tabled data prepared by a third party consultant, showing the percentage difference between the maximum of each level and the average of external comparators, at the 50^th percentile. The study was conducted in 2007 and updated by the employer in 2011, using data from three other third party consultants. The consultant used in 2007 stated that based on its methodology, a difference of plus or minus 10% indicated that the comparators were within competitive norms. The data showed that the maximum of the MA-2 level was 25.1% lower than external comparators in 2011. The data also showed that the maximum of the MA-7 level was 11.4% lower than external comparators in 2011. In 2007, the difference at the MA-7 level was 7.7%. The distribution of employees in the MA-2 level shows that there are no employees at the maximum of the level. This is because employees at the MA-2 level move to the MA-3 level well before attaining the maximum. There are only 7 employees at the MA-7 level, with 6 of them at the maximum. 

[47] Given the distribution of employees at the MA-2 level, the Arbitration Board has determined that restructuring for this level is not required. However, the pay for those in the MA-7 level shows a downward trend in external relativity and the difference is statistically significant. Accordingly, each step in the range for the MA-7 is increased by 1.4%, effective October 1, 2011.   

[48] The Arbitration Board has determined that there is no demonstrated need for any further restructuring of pay for the RE Group.

Economic increases

[49] Both the employer and the bargaining agent have proposed economic increases of 1.5% per year. The first year of the contract is governed by the Expenditure Restraint Act, and accordingly the increase for that year is limited to 1.5%.

[50] The Arbitration Board determines that the annual increase in salaries shall be 1.5% in each year, with an additional 0.25% effective October 1, 2011 and an additional 0.5% effective October 1, 2013.

• Effective October 1, 2010: 1.5%
• Effective October 1, 2011: 1.75%
• Effective October 1, 2012:  1.5%
• Effective October 1, 2013:  2.0%

[51] The Arbitration Board shall remain seized of this matter for a period of four weeks from the date of this award, in the event that the parties encounter any difficulties in its implementation.

Ian R. Mackenzie

For the Arbitration Board

November 7, 2012