FPSLREB Decisions

Report

(1) On February 3, 2012, the Professional Association of Foreign Service Officers (the Bargaining Agent) requested conciliation to further the process of collective bargaining with the Treasury Board (the Employer).

(2) This round of collective bargaining commenced on June 21, 2011 when the Bargaining Agent filed notice to bargain. 

(3) Following the expiration of the old collective agreement on June 30, 2011, the parties exchanged proposals on August 31, 2011.

(4) On several days during the months of October, November and December 2011 as well as January 2012, the parties met to bargain collectively.

(5) The Foreign Service (FS) Group comprises positions that are primarily involved in the planning, development, delivery and promotion of Canada’s diplomatic, commercial, human rights, cultural, promotional and international development policies and interests in other countries and in international organizations.

(6) As of December 31, 2010, the FS bargaining unit contained 1,388 employees distributed in 10 different departmental organizations.  However, approximately 98% of employees in the FS bargaining unit work for the Department of Foreign Affairs and International Trade (DFAIT) and Citizenship and Immigration Canada.

(7) Approximately half (44.2%) of the members of the Bargaining Agent are posted abroad while the remainder (55.8%) work in Canada, principally in the National Capital Region.

(8) As of December 31, 2010, the FS Group was slightly male dominant with a gender composition of 54% males and 46% females.

(9) A Public Interest Commission (PIC) was established on July 17, 2012, to endeavour to assist the parties to the dispute in entering into or revising their collective agreement.

(10) Prior to the hearings in this matter, the parties exchanged briefs on September 25, 2012.  The briefs were submitted to the PIC in advance of the hearings.

(11) The PIC met with the parties on October 4 and 5, 2012, during which time the parties were given a full opportunity to make representations.

(12) Following the hearings, the PIC met to discuss and consider the evidence and submissions of the parties in light of the factors enumerated in section 175 of the Public Service Labour Relations Act (the Act).

(13) The PIC believes that all the factors listed in section 175 of the Act must be considered in making its recommendations and that none of the factors has more importance than the other.  Each factor must be looked at and applied to the circumstances of any given case by a PIC on the basis of the briefs, evidence and submissions presented to it.

(14) In this case while there does not appear to be significant recruitment and retention problems for employees in the FS group, there was evidence presented by the Bargaining Agent showing some lagging with internal comparators at the FS1 and FS2 levels.

The Issues in Dispute and the PIC’S Recommendations

Rates of Pay and Severance Pay

(15) The Employer has proposed economic increases over a 3 year agreement as follows:

Effective July 1, 2011 :	1.5%
Effective July 1, 2012 :	1.5%
Effective July 1, 2013 :	1.5%

(16) The Bargaining Agent has proposed economic increases of 2.5% in each year of a 3 year collective agreement as well as a comprehensive restructuring at all levels of the FS pay grid.

(17) The Employer has also proposed the deletion 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.

(18) Under the Employer’s proposal, employees would have certain options as to cash out of accumulated benefits.  Finally the Employer offers additional increases of 0.25% in year one and 0.5% in year 3 of a 3 year agreement in exchange for the elimination of severance pay in resignation and retirement cases.

(19) The proposed amendment to Article 22 of the collective agreement dealing with vacation leave is consequential to the proposed changes to severance pay. For a more detailed discussion of this issue refer to paragraphs 48 and 49 of this report.

(20) The Employer points out that in the present round of bargaining, 9 collective agreements covering more than 100,000 unionized employees have been ratified, all of which have included the elimination of severance pay in resignation and retirement cases.  Furthermore, the same severance benefits were eliminated for approximately 13,000 executives and non-represented employees as well as for the Canadian Armed Forces and RCMP members.  Finally, arbitral awards for  the EC, EL and TR groups have eliminated severance pay provisions for voluntary resignation and retirement.

(21) The Bargaining Agent suggests that the Employer has not properly costed out the negative financial effect of its proposal on members of the bargaining unit.

(22) The PIC recommends that the employer’s proposals on rates of pay and the elimination of severance pay be adopted in the new collective agreement.  Current settlements and arbitral awards make it impossible to recommend otherwise.

(23) Given our belief that the evidence presented shows some lagging behind internal comparators at the FS1 and FS2 levels, the PIC recommends that one additional step be added to each of the FS1 and FS2 pay grids at the start of year one of the collective agreement, and prior to the application of the economic increases referred to in paragraph 22 of this report.  The PIC recommends no restructuring at the PS3 and FS4 levels.  There was no evidence of lagging behind internal comparators at the FS3 level while the evidence presented with respect to the FS4 level was very limited and inconclusive.

(24) The PIC recommends that the FS3 pay grid be streamlined by eliminating the first 2 steps at the start of year one of the new agreement and before the application of any economic increases.  This would help create a more uniform overall FS pay structure.

(25) Finally the PIC strongly encourages the parties to engage in a detailed review of the FS pay scales using appropriate internal and external comparators.

Article 6 – Information

(26) The Employer has proposed that its obligation to provide each employee with a copy of the collective agreement be satisfied by the provision of an electronic version.

(27) The Employer argues that this proposal is in line with several other groups and aims at modernizing the way government does business in this technological age.

(28) The Bargaining Agent is not in favour of the Employer’s proposal.

(29) The PIC recommends that the language proposed by the Employer be adopted in the new collective agreement.

(30) The PIC also recommends that language be added to indicate that printed copies of the collective agreement would be available to employees upon request.

Article 9 – Employee Performance Review

(31) Both the Employer and the Bargaining Agent have proposed amendments to Article 9.

(32) The Employer wishes to redefine instances where employees would not be given an opportunity to bring their performance up to standard.

(33) The Bargaining Agent wishes to incorporate into the article, a detailed statement of the Employer’s obligations in cases of poor work performance.

(34) The PIC recommends that Article 9 dealing with employee performance review be renewed without change.

Article 12 – Hours of Work

(35) The Employer has proposed that the normal workday be changed to cover the hours between 6:00 a.m. and 7:00 p.m. The present workday covers the hours between 7:00 a.m. and 6:00 p.m.

(36) The Employer also wishes to have the ability to determine an employee’s workweek and work day pursuant to local employment laws or regulations at missions abroad.

(37) Finally, the Employer proposes that the notice period to be given to employees whose hours of work are changed to extend outside the normal hours of work, be reduced from 5 days to 48 hours.

(38) The Bargaining Agent opposes the proposed changes to Article 12.

(39) The PIC recommends that Article 12 dealing with hours of work be renewed without change.

Article 15 – Call-Back Pay

(40) The Bargaining Agent has proposed that the provisions relating to data line or electronic call-backs be deleted from the article.  This change, according to the Bargaining Agent would bring the FS collective agreement in line with the collective agreements of other employees in different occupational groups who work alongside FS employees at the DFAIT headquarters.

(41) The Employer has indicated its firm belief that work flowing from phone calls and data line transmissions should not warrant the same minimum compensation as work performed following a physical return to the work place.

(42) The PIC recommends that Article 15 dealing with call-back pay be renewed without change.

Article 16 – Stand-by

(43) Both the Employer and the Bargaining Agent have proposed changes to the stand-by provisions of the collective agreement.

(44) The PIC recommends that Article 16 dealing with stand-by situations be renewed without change.

Article 18 – Travelling Time

(45) The Employer has proposed several modifications to Article 18 dealing with travelling time.  The proposed changes deal with travel periods that start on one day and finish on the next, a reduction in the maximum amount that can be compensated for travel on a day of rest or on a designated holiday and how compensatory leave should be dealt with.

(46) The Bargaining Agent has opposed the Employer’s proposed changes.

(47) The PIC recommends that Article 18 dealing with travelling time be renewed without change.

Article 22 – Vacation Leave

(48) The Employer has proposed changes to the vacation leave provisions of the collective agreement in conjunction with its proposals dealing with the elimination of severance pay for voluntary departures.

(49) The PIC recommends that the consequential amendment to Article 22 dealing with vacation leave, proposed by the Employer, be incorporated into the new agreement.

Article 28 – Leave with Pay for Family Related Responsibilities

(50) The Bargaining Agent has proposed that an employee be allowed to use up to 7.5 hours out of the 37.5 hours of special leave contained in the collective agreement for school functions, to take care of a child or to attend meetings with professional representatives for non-employment related matters.

(51) The PIC recommends that the changes to Article 28 dealing with leave with pay for family related responsibilities proposed by the Bargaining Agent be incorporated into the new collective agreement.

Article 31 – Bereavement Leave with Pay

(52) The Bargaining Agent has proposed that the bereavement period when a member of the employee’s immediate family dies be extended from 5 to 7 consecutive calendar days.

(53) The PIC recommends that the changes to Article 31 dealing with bereavement leave with pay proposed by the Bargaining Agent be incorporated into the new collective agreement.

Article 38 – Term of Agreement

(54) The PIC recommends that the parties enter into a 3 year agreement whose term would end on June 30, 2014.

Article 51 – Maternity Related Reassignment or Leave

(55) The Bargaining Agent has proposed changes to Article 51 dealing with rates of pay for an FS while on job modification reassignment, deployment or transfer for maternity reasons.

(56) The Employer opposes these changes stating that the current language of Article 51 is consistent with the language contained in all other federal public sector collective agreements on this issue.

(57) The PIC recommends that Article 51 dealing with maternity related reassignment or leave be renewed without change.

NEW – FSDP Training

(58) The Bargaining Agent has proposed that a new article dealing with the Foreign Service Development Program (FSDP) be added to the collective agreement.  The FSDP is presently a 3 year program for new FS officers in the political/economic and commercial/economic streams.  FSDP participants effectively remain on probation for the 3 years of the program with performance measurements at the 12, 24 and 36 month points.

(59) The Employer opposes the changes proposed by the Bargaining Agent stating inter alia that the FSDP is a staffing process and as such cannot be included in the collective agreement.

(60) The PIC recommends that the changes proposed by the Bargaining Agent dealing with the FSDP not be included in the new collective agreement.

(61) The PIC nevertheless recommends that the parties continue ongoing, meaningful consultations on this and other related HR issues.

New – Maternity and/or Paternity Leave Without Pay – Policy for Leave Taken Abroad

(62) The Bargaining Agent has proposed that the Employer’s policy on maternity and/or paternity leave without pay taken abroad effective on the date the new agreement is signed, remain in effect for the duration of the collective agreement.

(63) The PIC recommends that the new provisions proposed by the Bargaining Agent dealing with maternity and/or paternity leave without pay taken abroad not be incorporated into the new collective agreement.

NEW Appendix – Telework Policy

(64) The Bargaining Agent has proposed that the Employer’s Telework Policy be incorporated into the new collective agreement in its entirety.

(65) The Employer opposes this proposal stating that no other collective agreement in the core public administration contains policy sections or protocols on telework.

(66) The PIC recommends that the changes proposed by the Bargaining Agent dealing with the telework policy not be incorporated into the new collective agreement.

(67) The PIC, in making its recommendations, is mindful of the obligations of the parties contained in Division 3 of the PSLRA and encourages them to continue to engage in meaningful consultations on all workplace issues.

Yvon Tarte, for the PIC

Ottawa, October 22, 2012.