FPSLREB Decisions

Introduction

1 In the course of the establishment of the Public Interest Commission (PIC or Commission), the Public Service Alliance of Canada (PSAC) and the Communications Security Establishment of Canada (CSE) agreed to the following:  

• Grievance process; 
• Duration (three years, expiry of February 9, 2015) and
• Appendix “D”.

2 At the hearing, the bargaining agent withdrew its proposal with respect to volunteer and personal needs leave.

Bargaining History

3 The collective agreement expired on February 9, 2012. The bargaining agent filed a notice to bargain on October 19, 2011. As had been done in previous rounds of bargaining, the parties agreed to use an interest-based bargaining process. This process involved a discussion of issues and the identification of “preferred solutions” to various issues. Once the identified issues have been addressed, the preferred solutions would then be subject to ratification by the two parties. The parties met in bargaining for over thirty days between January of 2012 and October 2013. The bargaining agent requested a Public Interest Commission on November 12, 2013. The Public Interest Commission was established on January 23, 2014.

The Employer and the Bargaining Units

4 The CSE is a department of the federal public service listed in Schedule 1.1 of the Financial Administration Act. The mandate of the CSE is established by the National Defence Act (section 273.64(1)):

(a) to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities;

(b) to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and

(c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

5 The bargaining unit consists of all employees of the CSE, excluding directors, persons above the rank of director, employees involved in the planning, development, delivery or management of human resources, and such other persons employed in a managerial or confidential capacity. There are approximately 1,900 employees in the bargaining unit. Occupations in the bargaining unit include engineers, computer scientists, physicists, mathematicians, intelligence analysts, financial and administrative staff.   

Statutory Criteria

6 Section 175 of the Public Service Labour Relations Act (PSLRA) sets out new factors for a PIC to consider, as well as giving different weight to factors previously contained in the PSLRA.  Section 175(1) states that the PIC must determine whether the terms and conditions of employment “represent a prudent use of public funds and are sufficient to allow the employer to meet its operational needs”. In making its report the PIC is guided by and is required to “give preponderance to” the following factors (section 175(1) of the PSLRA):

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

(b) Canada’s fiscal circumstances relative to its stated budgetary policies.

7 The PIC is also permitted to take the following factors into account, if relevant to its determination:

(a) comparability of terms and conditions of employment as between different classification levels within an occupation and as between occupations within the public service;

(b) comparability of terms and conditions of employment relative to employees in similar occupations in the private and public sectors;

(c) compensation and other terms and conditions of employment that are reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(d) the state of the Canadian economy.

8 Section 176 requires the PIC to set out in its report “the reasons for each of its recommendations”.

9 In addition, section 176 of the PSLRA requires the PIC to take into account:

… all terms and conditions of employment of, and benefits provided to, the employees in the bargaining unit to which the report relates, including salaries, bonuses, allowances, vacation pay, employer contributions to pension funds or plans and all forms of health plans and dental insurance plans.

10 The PIC notes that there was no information provided to it concerning employer contributions to the pension plan or to health and dental plans. Accordingly, the PIC was not able to take such contributions into account. Given this statutory requirement, it will be important in the future for the parties before a PIC to provide detailed information on employer contributions to benefit plans. However, it is the view of the PIC that this information would not have been of any assistance in the drafting of this report.

Outstanding Issues

Severance Pay – Article 20

11 The employer proposed the elimination of severance pay for voluntary resignation and retirement. As part of its proposal, the employer proposed that employees could cash-out, in whole or in part, their severance entitlement or elect to take the accumulated severance entitlement at retirement or resignation. The employer also proposed some enhancements to severance on lay-off. In exchange for the acceptance of this proposal, the employer proposed an additional economic increase in wages of 0.25% in 2012 and of 0.5% in 2014.

12 The PIC recommends that the employer proposal be included in the collective agreement. This is consistent with the pattern established across the federal public service. The PIC has addressed economic increases below. 

Vacation Leave – Article 11

13 The bargaining agent proposed a change in the years of service required for certain levels of vacation pay, as follows:

• One and one-quarter days of leave credits per month until the fifth year of service (changed from 8 years of service)
• One and two-thirds days of leave credits per month commencing on the fifth year of service (change from 8 years of service)

14 The parties identified the bargaining agent proposal as a preferred solution in bargaining. In addition, employees at CSIS, under a collective agreement with the PSAC, have this entitlement.

15 The employer objected to the bargaining agent proposal. It submitted that the vacation leave entitlement sought was beyond what has been granted to most bargaining units in the core public service. In addition, the employer submitted that the proposal would impose costs on the employer that it could not absorb.

16 The PIC recommends that the bargaining agent proposal be included in a new collective agreement. A comparable group of employees (CSIS) have the same leave entitlement.  Given that CSE and CSIS employees will be working in close physical proximity when the new work site is fully operational, lower vacation entitlements for CSE employees could also prove problematic.

17 The CSE proposed language that clarifies that the payment of severance under articles 20.04 to 20.07 does not reduce the calculation of vacation leave entitlements for employees. It also proposed changes to the provisions for calculation of vacation entitlements for former service in either the RCMP or the Canadian Forces.

18 The PIC recommends that these proposed changes be included in a new collective agreement.

Leave with Pay for Family-Related Responsibilities – Article 12

19 The employer proposed the addition of “step children” to the definition of family. The bargaining agent proposed the addition of a relative “for whom the employee has legal responsibility” to the definition of family. The parties identified these changes as a preferred solution in bargaining. The employer objected to the bargaining agent’s suggested change in definition. It submitted that its proposed language matched the provisions in the core public service.  

20 The PIC recommends that the changes to the definition as proposed by both parties form part of the collective agreement. The parties identified these changes as a preferred solution in bargaining. In addition, it recognizes family-related responsibilities when aged or ill relatives are no longer able to reside with the employee.

21 The bargaining agent proposed additional leave under this article for attendance at school functions and to attend appointments with legal or financial advisors. The CSE proposed, as part of its proposal on severance pay, that leave for school functions, leave to provide for children in the event of a school closure, and leave for appointments with legal or financial advisors be added to the list of circumstances for which leave will be granted, up to a limit of one-day of the total of five-days of leave. The bargaining agent proposed that there be no limit to the leave for these circumstances, within the overall five-day amount.

22 The PIC recommends that the employer proposal form part of the collective agreement, which is consistent with the pattern across the public service.

Professional Development - Article 13

23 The bargaining agent proposed that the article be amended to require the employer to provide the reason(s) for a denial of a professional development opportunity. The employer objected to the inclusion of this proposal in a collective agreement. The parties identified the bargaining agent proposal as a preferred solution in the interest-based negotiation process.

24 The PIC recommends that the bargaining agent proposal form part of the collective agreement, as it had been identified as a “preferred solution” of the parties in bargaining, it reflects existing practices, and there is no fiscal impact of the proposal.

Compensatory leave credits - Article 17

25 The bargaining agent proposed an addition to clause 17.05(c) to allow employees on shift work to accumulate compensatory leave credits to offset required leave for designated holidays. The employer objected to this proposal. The parties identified the bargaining agent proposal as a preferred solution in the interest-based negotiation process.

26 The PIC recommends that the bargaining agent proposal form part of the collective agreement, as it does not change how employees earn compensatory leave, it does not place an obligation on the employer to provide additional opportunities for employees to earn compensatory leave, and it had been identified as a preferred solution of the parties in bargaining.

Part-Time Employment – Article 27

27 The employer proposed that part-time employees be paid 4.25% of straight-time hours worked instead of being paid for designated holidays. This language is contained in agreements in the core public service (62.07 of the Program Administration collective agreement, for example). The employer submitted that its proposal was necessary in light of the consolidation of pay services across the federal government that is occurring in 2015. It submitted that the current practice of manually adjusting pay for part-time employees will not be feasible following the implementation of the consolidation.

28 The bargaining agent submitted that part-time employees would lose income as a result of the employer proposal. It also submitted that the correct percentage was 4.4%.

29 The PIC recommends that the employer proposal be included in a collective agreement. The payment to part-time employees of 4.25% in lieu of pay for designated holidays is a consistent practice across the federal public service. 

Wages and Market Allowance

30 The parties have agreed to a duration of the collective agreement of three years (until February 9, 2015).

31 The employer proposed economic increases of 1.5% in each of the three years of the collective agreement. In exchange for acceptance of its proposal on severance pay, the employer proposed an additional 0.25% in the first year and an additional 0.5% in the third year. The bargaining agent proposed economic increases of 3.0% in each of the three years.

32 The PIC recommends the following economic increases be included in a collective agreement:

Effective February 10, 2012:  1.75%

Effective February 10, 2013: 1.5%

Effective February 10, 2014: 2.0%

33 These economic increases are consistent with settlements across the federal public service.

Market Allowance

34 The parties negotiated a Market Allowance in 2004 for employees classified at the UNI-4 to UNI-11 levels performing Computer Science Administration and/or Engineering functions in the performance of their duties. The allowance for each level ranges from approximately $1,300 to $14,500 a year. Approximately 50% of the bargaining unit (952 employees) is in receipt of the market allowance.

35 The bargaining agent proposed that the Market Allowance be rolled into base salaries for those in receipt of the allowance, effective February 10, 2012. The employer proposed that the Appendix be renewed.

36 The employer stated that it was conducting a review of the Market Allowance and had hired consultants for this purpose. The bargaining agent has not been involved in the review process. The bargaining agent submitted that employees were concerned about the possibility of a loss of the Market Allowance.

37 The employer submitted that there were no recruitment or retention issues at the CSE. It submitted that increasing the Market Allowance or rolling it into salary was not consistent with the government’s fiscal circumstances.

38 The PIC sought further written submissions from the parties with regards to an award of an Arbitration Board in Professional Institute of the Public Service of Canada and Treasury Board (RE Group), 585-02-41, November 7, 2012. At paragraph 44 of that award, the Arbitration Board declined to roll-in a terminable allowance (similar in nature to the Market Allowance) where only part of the occupational group was in receipt of the allowance.

39 The CSE stated that when the criteria for an allowance applies only to a portion of the members of an occupational group, it is preferable to keep the allowance separate, rather than creating a separate pay line for only a portion of an occupational group. The bargaining agent submitted that in the Interest Arbitration, the group of employees in receipt of the terminable allowance was a small portion of the overall group, whereas at the CSE more than 50% of employees are in receipt of the Market Allowance. The bargaining agent submitted that the Market Allowance has effectively created two pay bands and that its proposal was a formalization of what has already occurred.  

40 The PIC recommends that the Market Allowance appendix be renewed. The PIC recognizes that terminable allowances were rolled in for a number of occupational groups in the rest of the public service. However, such a roll-in did not create two pay lines. In addition, the Market Allowance is currently under review and can be negotiated on the basis of more information in the next round of collective bargaining.

41 However, the PIC is also mindful of the fact that it must consider the preponderant factors of retention and the government’s “fiscal circumstances relative to its stated budgetary policies”. These factors support a recommendation of economic increases to the Market Allowance in each of the three years of the collective agreement, mirroring the economic increases for wages. The Market Allowance is part of a retention strategy. In addition, terminable allowances have been rolled into salary for other bargaining units, demonstrating that economic increases to the value of the allowances are within the government’s “fiscal circumstances”.

42 The PIC recommends that the Market Allowance Appendix be increased by 1.75% on February 10, 2012, 1.5% on February 10, 2013 and 2.0% on February 10, 2014.

43 The PIC also recommends that the employer consult with the bargaining agent on the review of the Market Allowance, given its importance to a majority of employees in the bargaining unit.   

Appendix E -- MOU on Foreign Language Incentive Plan (FLIP)

44 The FLIP applies to certain CSE employees who are required to know foreign languages (languages other than English or French). The foreign languages covered by the FLIP can change, with operational needs. Currently, the FLIP allowance does not form part of salary for any purposes.

45 The bargaining agent proposed that the FLIP allowance be treated in a similar fashion to the Bilingual Bonus which treats the payment as part of salary for Employment Insurance purposes. This change would have the effect of including the FLIP allowance in maternity and parental leave top-up calculations. The bargaining agent submitted that employees are required to maintain their foreign languages while on leave.

46 The employer submitted that translators in the TR Group in the core public service receive similar allowances that are not included in salary. It also submitted that eligible languages can change over time and this could mean that an employee on leave might be in receipt of more income than an employee not on leave.

47 The PIC recommends that the FLIP allowance be considered as salary for the purposes of EI and maternity and parental leave. There is no logical basis to treat the FLIP allowance differently than a Bilingualism Bonus. In addition, it is in the parties’ mutual interest (and Canada’s security interests) that foreign language skills be maintained for periods of leave. The employer did not provide any information to support any concern about a significant financial impact on the government’s fiscal situation.

New Items

Work Force Adjustment

48 The bargaining agent proposed that the employer’s policy on work force adjustment be included in the collective agreement. The employer objected to the proposal.

49 The inclusion of work force adjustment provisions in collective agreements is common across the public service and there are no fiscal implications as the current policy provisions will remain in effect. However, paragraph 177(1)(c) of the PSLRA prohibits the PIC from recommending the inclusion of any provision in a collective agreement relating to the lay-off of employees.

Social Justice Fund

50 The bargaining agent proposed a provision for an employer contribution to a Social Justice Fund. The employer objected to the proposal and noted that it was not contained in any collective agreement in the federal public service.

51 The PIC notes that a Social Justice Fund provision does not exist in any collective agreements in the core public service or separate employers under the PSLRA. Accordingly, it does not recommend that this proposal form part of a collective agreement.

Parking for employees with disabilities

52 The bargaining agent proposed a provision that would require the employer to provide free parking for persons with a “certified” disability. The bargaining agent noted that the parking policy recently changed at the CSE, and employees are now required to pay market rates for parking. The bargaining agent submitted that there are 45 employees with a disability affected by the change in parking policy at the CSE. The employer opposed the proposal. It stated that it was complying with Treasury Board policies on parking and accessibility.   

53 The PIC declines to recommend that the bargaining agent proposal be included in the collective agreement.

54 The PIC notes that the bargaining agent proposal, as written, is over-broad and should be limited to employees with mobility-related issues. It is the view of the PIC that payment of all or part of parking costs for employees with mobility-related disabilities would benefit from further discussion and collaboration by the parties. The Treasury Board Policy on the Duty to Accommodate Persons with Disabilities forms a good basis for that discussion and collaboration:

…Departments should determine whether it is appropriate to charge parking fees to employees with a disability who are unable to use public transit, and, if so, what those fees should be.

Separate Space for Union Related Matters – Article 5

55 The bargaining agent proposed a provision that would require the employer to provide the bargaining agent Local with separate space on premises to conduct its representation work in a confidential matter and to provide safe storage of all confidential documents related to the business of the bargaining agent. The proposal arises from the impending move to a new building. Currently, the employer is providing a separate office for local union business. The new building will be open concept with no dedicated space for union business. Given the nature of the work at CSE, there is a demonstrated need to provide both storage and meeting space on the employer’s premises.

56 At the hearing, the employer stated that secure and private storage for confidential documents would be provided in the new space. The CSE stated that the new facility is an open office design, without dedicated space for single purposes. It stated that provision has been made for meeting spaces to be used on an “as needed” basis.

57 The move to the new building has not yet occurred. The PIC recognizes that there is some uncertainty about how the open concept office will work, especially with regards to the specific needs of the bargaining agent Local. In order to address the legitimate concerns of the bargaining agent, the PIC recommends that the collective agreement include an MOU that clearly states the employer’s commitment to providing storage space and meeting space, on an as-needed basis, for the conduct of the bargaining agent’s business. After the move and after some experience in the new space, the parties will be in a better position to consider whether a permanent office for the bargaining agent is required.

58 Attached to this report are additional comments from the panel members.

(Original signed by)
Ian R. Mackenzie

Chairperson

For the Public Interest Commission

June 2, 2014

ANNEX

Bargaining agent nominee:

1  While I agree with my colleagues on the bulk of the recommendations contained in the PIC report, I cannot agree with the recommendation with respect to the market allowance (MA) and this dissent relates to that section of the decision.  My colleagues have made recommendations, which, if adopted, could resolve the issue of the amount of the MA in the short-term and they are appropriate as far as they go.  However, it is my view that the PIC has missed an opportunity to help the parties find a long-term solution to this issue.

2 My analysis of the evidence presented to the Public Interest Commission has convinced me that the actions of the employer and the Treasury Board have put the continued application of the MA in this bargaining unit under threat.  This perception has been created entirely by the employer and the union proposal is a rational response to that threat.  In my view, it is in the interest of both parties to resolve the issue in this round of bargaining before it grows into an even larger source of conflict.  My analysis therefore, leads me to recommend that the union proposal be included in the collective agreement.

3 The PIC, in making its recommendations, is governed by the requirements of the Public Service Labour Relations Act, Section 175 which is reproduced below.

175. (1) In determining whether compensation levels and other terms and conditions represent a prudent use of public funds and are sufficient to allow the employer to meet its operational needs, the public interest commission is to be guided by and to give preponderance to the following factors in the conduct of its proceedings and in making a report to the Chairperson:

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

(b) Canada’s fiscal circumstances relative to its stated budgetary policies.

(2) If relevant to the making of a determination under subsection (1), the public interest commission may take any of the following factors into account:

(a) relationships with compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(b) the compensation and other terms and conditions of employment relative to employees in similar occupations in the private and public sectors, including any geographical, industrial or other variations that the public interest commission considers relevant;

(c) compensation and other terms and conditions of employment that are reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(d) the state of the Canadian economy.

4 Given the critical nature of the work performed by this public institution, I find that any recommendation which leads to uncertainty and has the potential to create retention problems is not a prudent use of public funds.  If the result of my colleagues recommendations are as I predict, they could lead to a deterioration in the employer’s ability to meet its operational needs.

5 In further consideration of the provisions of this section, I note that the information presented to the PIC in the employer’s brief suggests that CSE has had neither recruitment nor retention problems in the past.  The union did not challenge these assertions.  The union did, however, in its oral presentation, indicate that the historical information provided by the employer cannot be extrapolated to the future because of the widely held perception that the MA is under threat.  The anecdotal information submitted by the union indicates employees are beginning to “brush up their CV’s” and are beginning to explore employment opportunities outside of the CSE. 

6 The employer responded to this by suggesting they would do nothing to create recruitment or retention problems but they specifically refused to confirm that the MA is not under threat and maintained they needed to continue with their own private investigation of the MA.  They did not contradict a union assertion that they had refused to conduct a joint study with the union on this subject.  My colleagues have recognized this as a legitimate concern and have recommended that the employer abandon its unilateral approach.

7  Additionally in its presentation to the PIC, the employer argued that a recent arbitral decision relating to the MA that granted a union grievance was one of the prime motivators in pushing them into a new analysis of the application and quantum of the MA.  In short, that award found that the employer was in violation of the collective agreement by improperly applying the provisions relating to the market allowance.  This decision has resulted in an expansion of the number of members in the bargaining unit who receive the MA.  The employer reported that as a result of the decision the number of employees receiving the allowance had grown by 37%.  It is crucial to emphasize that the award only allowed employees who had been improperly denied the MA, to receive a benefit negotiated by the parties in their collective agreement.

8  It is therefore reasonable to infer that given the employer’s unhappiness with this award and its consequences, it is seeking to lessen the number of people who receive the MA or the amount they receive or both.  It is unreasonable to infer that they would propose to conduct an investigation that excludes the union by consultants completely under their direction and control with the goal to either augment the MA or maintain the status quo.

9  For all of these reasons I am persuaded that the uncertainty surrounding the MA is creating the groundwork for recruitment and retention issues within the CSE and requires recommendations to the parties that will help them remove that threat.

10      The MA is an existing benefit under the collective agreement and rolling it in to the salary of employees would have an insignificant impact on “Canada’s fiscal circumstances relative to its stated budgetary policies.”  There are small economic consequences and I will address them below.

11      Based on the evidence presented I find that section 175(2)(a) is the only other relevant factor to take into account.

12      The evidence before the PIC was clear and uncontested.  The major comparator groups in the Core Public Administration (CPA) have had their comparable allowances rolled into salaries.  The evidence presented by the union and unchallenged by the employer is that both the CS and EN-ENG classifications in the CPA have had their terminable allowances (TA) rolled into salaries.  The employer when it presented its internal wage comparisons was careful to point out that the comparison included the MA for CSE employees and the TA for those in the CPA.  It did not contest that for the groups in the CPA these allowances were now salary and at CSE they remained allowances and hence were at risk.

13      The employer has concluded from this evidence that the MA would not need to be rolled in to salaries to keep current recipients fairly remunerated relative to the values of the CPA comparators.  However, as the union noted in its presentation, the policy of both the employer and Treasury Board is that employees of CSE are entitled to be compensated at a level 3% ahead of comparison groups in the CPA.  The rationale for this differential is the life-long security obligations to which employees and former employees of CSE are subjected. 

14      It is clear then from the employer’s own evidence that this objective has not been achieved and that the compensation gap between CSE employees and those in the relevant CPA classifications will deteriorate as annual wage increases are applied to the former allowances paid to the comparator groups and the additional requirement to bargain such increase to the MA should it continue to exist.  I note that my colleagues have recommended that the MA be increased by the same amounts as the comparator groups during the life of this collective agreement.  If those recommendations are adopted they would provide a short-term fix while pushing the fundamental issue into future rounds of bargaining.

15      It is also clear that there will be negative consequences as CSE employees come to recognize that comparable employees in the CPA have had allowances permanently rolled in to salary and they have not. 

16      The evidence before the PIC indicated that the MA, on average, represents an amount equal to 10% of salary.  It is therefore an important source of income for employees.  The difference in my recommendation and that of my colleagues is that it would increase rates of pay for overtime and be added to the base upon which future economic increases are applied.

17      Both the employer and the union have demonstrated a respectful and cooperative relationship with the employer documenting external evaluations demonstrating that CSE is a good place to work.  I am concerned that the failure to treat CSE employees equitably when compared with the CPA will have a negative impact on that relationship.

18      The employer argued that we should reject the union’s proposal to roll in the MA because doing so could potentially create human rights issues.  Had some evidence been presented to support this assertion, the evidence would have to have been evaluated.  No such evidence was presented.  The only demographic data presented outlined the gross numbers of female and male employees.  There was no information that addressed the effect of rolling in the MA on any group protected by human rights provisions.  Given this complete absence of supporting evidence I find that this assertion cannot be used as a reason for rejecting the union’s proposal.

19    My colleagues have been influenced by an award of an arbitration board (Professional Institute of the Public Service of Canada and Treasury Board (RE Group) 585-02-41, November 7, 2012).  The parties to this PIC were requested to make submissions on this award following the hearings.  In that decision, the panel refused to roll an allowance into salaries for a group of scientists because doing so would create a new pay band.  It was not surprising that the employer found the decision consistent with the facts of the issue before us while the union argued that the facts in the two bargaining units were clearly different.

20      While their conclusions were different, they appear to agree on some fundamental facts.  The employer noted that the proportion of employees in the SE-RES and SE-REM groups who did not have their terminable allowance rolled in to base salary was smaller than the CSE group.  The union noted the same point but provided additional detail.  According to the union only 3.3% of employees in the affected classifications received the allowance, (57 employees out of 1691) while 52% (925 employees) of the CSE bargaining unit receive the MA.

21      The employer also acknowledged that the quantum of the MA for CSE employees who receive it is significantly greater as a percentage of salary than for the SE-RES and SE-REM groups.  In the CSE unit the MA averages $10,369 per employee per year.  This information is consistent with the submissions of the union during the hearing.

22      Notwithstanding these key differences the employer has concluded that logically there is no difference between the two cases.

23      The union, on the other hand, inferred that the arbitration board in the referenced case was unable to justify a separate pay line for “such a small portion of the overall sub-group especially when …discussing jobs within a specific classification sub-group and a specific department.”  The union argues that the situation at CSE is quite different. 

24      The fact that about half CSE employees are receiving the MA creates a de facto situation of two separate and distinct pay lines and this situation has existed for almost 10 years.

25      A decision to accept the union’s argument would do no more than formalize a pay situation that has existed for a decade and at the same time remove an irritant that has the already caused employees to think about looking for new work and has the potential to cause even greater retention and recruitment issues.

26      I also note that both the legal framework of an arbitration board and the practical consequences of its awards are different from those of a PIC.  An arbitration board orders the parties to implement its decisions.  A PIC, in contrast, makes recommendations to the parties to aid them in further negotiations. 

27          For all of these reasons it is my recommendation to the parties that the union proposal to roll the Market Allowance into salaries be included in the collective agreement.

Employer nominee:

28 As an instrument intended to support continued dialogue in an effort to reach a negotiated agreement, I can support many of the recommendations contained herein.  I must state, however, my disagreement towards the recommendation that the FLIP Allowance be included in the calculation of the top-up during periods of Maternity and Parental Leave.

29 There is no disputing that the Bilingualism Bonus is included in the calculation of the maternity and parental top-up.  The reasons why are unclear and were not addressed by either party in these proceedings.  I submit, however that the Bilingualism Bonus is not the only, nor the most apt, comparator in this instance.

30 Commonly, other federal governmental organizations, particularly those governed by the PSLRA, are considered prime comparators. In the numerous collective agreements that exist within the Public Service there are dozens of different types of bonuses payable to employees. Outside of the Bilingualism Bonus, which reflects the language duality of our country and applies equally to all government employers, the Bargaining Agent did not name a single other public service bonus that is included in the salary top-up. 

31 One frequently used tactic in collective bargaining is that of “whipsawing” where one party uses the gains made in collective agreements by another party in order to support the need for similar gains for itself. While I acknowledge that, for this item and for this employer, the cost is not overly significant, the potential for whipsawing across the public service is very great. In my view this particular proposal is precedent setting with a far greater potential impact on other employers within the federal public sector.

32 An example of this potential lies with, in my view, the most apt comparator in this instance: the Translation (TR) Group. Some translators are required to work in a number of foreign languages, in a way similar to the recipients of the FLIP Allowance at CSE. Translators receive a similar type of allowance. That allowance is not counted as salary with respect to the top-up.

33 Another, perhaps more compelling argument, is that very few people in the private sector receive any form of salary top-up at all. By including this allowance in the calculation of salary, the recommendation serves to widen the already existing gap between the benefit packages of the public sector and the private sector while also creating a gap between the benefit packages of this employer and those offered by other public service employers.

34 For the above reasons, I respectfully disagree with the recommendation to include the FLIP allowance in the calculation of the top-up during Maternity and Parental Leave.