FPSLREB Decisions

[1]      On December 19, 2002, the Executive Director of the Professional Association of Foreign Service Officers (PAFSO) wrote to the Public Service Staff Relations Board (PSSRB) claiming that the employer was not deducting union dues from Foreign Service employees who acted in EX positions. The submission stated that the employer was obliged to deduct dues pursuant to the provision of Article 3 of the applicable collective agreement.

[2]      At the outset of the hearing the parties submitted an Agreed Statement of Facts (Exhibit G-3). It states:

The parties, the Professional Association of Foreign Service Officers (PAFSO) and Treasury Board, agree to the following facts:

1. PAFSO is the certified bargaining agent for all employees in the Foreign Service (FS) bargaining unit.
2. There are presently approximately 580 members of the FS bargaining unit classified at the FS-02 level at the Department of Foreign Affairs and International Trade (DFAIT).
3. Every year, DFAIT assigns a number of employees at the FS-02 level to acting appointments in positions at the EX level.
4. As of July 2003, the total number of FS-02 employees acting in EX positions (including those subject to assignment to acting positions at the EX level this summer) is approximately 83. Attached as Appendix "A" is an email dated July 16, 2003 from Robert Daoust, Human Resources Policy and Operations to Ron Cochrane, Executive Director of PAFSO, listing the employees at FS-02 level who are currently acting in EX positions or who will be assigned to EX positions this summer.
5. The previous Treasury Board/PAFSO collective agreement (expiry June 30, 2001) addressed acting assignments in EX positions in article 42.08.
6. Performance assessments for FS employees in acting EX positions are completed on the basis that the employees are FS.
7. Effective January 1, 2003, the employer ceased to deduct dues in respect of all employees in the FS bargaining unit performing duties in acting positions at the EX level.

[3]      At the hearing, the parties added the following sentence to paragraph 6 of the Agreed Statement of Facts:

Some of these employees are assessed as well as EX's for performance pay purposes if there is entitlement to performance pay.

[4]      The bargaining agent did not present any witnesses, but did tender eight exhibits on consent (Exhibits G-1 to G-8).

[5]      One witness, Larkin Bradbury, testified for the employer. His curriculum vitae was tabled as Exhibit E-1.

[6]      Mr. Bradbury is Senior Policy Advisor with the Treasury Board Secretariat. He is responsible for the terms and conditions of employment for senior level excluded and unrepresented employees. Included therein are employees in the Executive (EX) group.

[7]      Mr. Bradbury agreed that the general rule applicable to acting assignments was that when an employee in bargaining unit "A" acts in a position in bargaining unit "B", the employee becomes subject to the collective agreement of bargaining unit "B". This is seen in paragraph 47.(A) of the Treasury Board Terms and Conditions of Employment Policy document (Exhibit G-6):

47.(A) General

Subject to subsection 47.(B) and Section 47.(C), when an employee temporarily performs duties at a higher classification level, the employee shall be subject to the terms and conditions of employment of the higher classification level;

(a) on the starting date of the assignment when the assignment will meet the qualifying period; or

(b) on the date, during the qualifying period, that the employee is notified that his or her assignment will meet the qualifying period

as stipulated in the relevant collective agreement or the terms and conditions applicable to the employee's substantive level.

[8]      Mr. Bradbury concurred with counsel for the bargaining agent that an exception to this had been made for employees who act in the EX group in the same policy document at paragraph 47.(B), which states:

47.(B) Management Category

An employee receiving acting pay as the result of an assignment to perform duties subject to the Management Category terms and conditions shall remain subject to the non-salary terms and conditions of the substantive level.

[9]      Mr. Bradbury stated this exception is also found in the Salary Administration Policy for the Executive Group (Exhibit G-7) at paragraph 5.8.3. This states:

5.8.3 Terms and conditions of employment

Employees receiving acting pay remain subject to the non-pay terms and conditions of employment that govern their substantive level positions.

[10]      In situations involving employees moving into EX positions, Mr. Bradbury advises departments to cease dues deductions in the month following the commencement of the acting assignment. This is made pursuant to paragraph 6 of the Treasury Board policy document titled "Union Dues Check-Off" (Exhibit G-8). This section states:

6. Acting assignment

For a bargaining unit employee who is placed on an acting assignment to:

[…]

• replace an employee in an unrepresented group, departments shall terminate dues deductions on the first day of the month following the effective date of the assignment;

[…]

If the employee is excluded, departments shall stop dues on the first day of the second month following the date of the agreement by the union or the decision of the PSSRB.

Note:

If the acting assignment is completed before input to the pay system has been made (i.e., closed period), no change in dues shall be made.

Arguments

For the Bargaining Agent

[11]      Treasury Board policies are not the law. This decision has to be based on what the law states.

[12]      The question that must be answered here is, can an FS employee who acts in an EX position continue to be regulated by the FS collective agreement. The answer to this question, it is submitted, is yes.

[13]      The Public Service Staff Relations Act (PSSRA) at subsection 2(1) defines an employee as:

"employee" means a person employed in the Public Service, other than

[…]

j) a person who occupies a managerial or confidential position

and subsection 2(2) of the PSSRA states in part:

In this Act, a reference to a person who occupies a position or to the occupants of a position includes a person who is acting in that position.

Therefore, at first blush, it may seem that FS employees who act in EX positions are no longer considered employees by virtue of the definition in the PSSRA.

[14]      However, the Federal Court of Appeal has stated that the employer can voluntarily agree to negotiate matters into a collective agreement which may otherwise be precluded by statute from being there [see Canada (Attorney General) v. Canada (Public Service Staff Relations Board) F.C.J. No. 633; Public Service Alliance of Canada v. Canada (Treasury Board) A-147-86 and A-319-86; Public Service Alliance of Canada v. Treasury Board, A-557-86]. In the instant case, the employer had done just that.

[15]      In clause 46.07 of the FS collective agreement that expired June 30, 2003 (Exhibit G-4), it states, in part:

46.07 Acting Pay

[…]

When an acting assignment is in an Executive (EX) position, the employee is excluded from the application of Article 12 (Overtime) for the period where the employee is subject to the Performance Management Program for Executives. For greater certainty, an employee receiving payments provided under Article 12 (Overtime), shall not be subject to the Performance Management Program for Executives for the same time period.

[…]

[16]      As is evident in this case, the employer has negotiated a collective agreement for employees in the FS group and one aspect dealt with concerns regarding FS employees acting as EXs. The collective agreement specifically states that in those situations, Article 12 does not apply to the FS employee. What follows from this is that all other provisions of the FS collective agreement do apply. This includes Article 3, Check-off.

[17]      Clause 3.01 of the FS collective agreement states:

3.01 Subject to the provisions of this Article, the Employer will, as a condition of employment, deduct an amount equal to the membership dues from the monthly pay of all employees in the bargaining unit.

[18]      Section 47.(B) of the Treasury Board Terms and Conditions of Employment Policy states that individuals who receive acting pay remain subject to the non-salary terms and conditions of the substantive level. In this case, the substantive level of an FS acting as an EX is the FS group. There should be no question that the terms and conditions of the FS group collective agreement continue to apply.

[19]      As stated at paragraph 7 of the Agreed Statement of Facts, the employer ceased to deduct dues effective January 1, 2003. The corrective action that should be taken is to revert to the previous practice and remit dues in situations where an FS employee acts in an EX position.

For the Employer

[20]      This is a relatively simple issue that can be looked at as having two distinct groups of employees. The first group are employees represented by PAFSO. The second group are excluded employees as defined by subsection 2(1) of the PSSRA.

[21]      Clause 3.01 of the FS group collective agreement states that dues will be deducted from all employees in the bargaining unit. As FS employees who act in EX positions are not employees for purposes of the PSSRA, they therefore cannot be employees for purposes of the collective agreement. Therefore, clause 3.01 would not apply to FS employees who act in EX positions.

[22]      Insofar as clause 46.07, acting pay, is concerned, this may well be ultra vires, as the collective agreement provision would contravene the PSSRA. This provision has not been tested at adjudication.

Reasons for Decision

[23]      Up until January 1, 2003, in situations where FS employees acted in an EX position, dues check-off continued. For reasons which I was not made aware of, this practice ceased and a reference was made by the bargaining agent under section 99 of the PSSRA seeking the enforcement of this obligation.

[24]      Clause 3.01 (cited earlier) is the collective agreement obligation which requires the employer to deduct union dues for all bargaining unit employees. In the employer's view, the application of this becomes problematic when an FS acts in an EX position and the individual is not considered to be an "employee" by virtue of the definition of the word "employee" in the PSSRA. This definition excludes the individual from being covered by the provision of clause 3.01, in the view of the employer.

[25]      The bargaining agent states that it dealt with this aspect in the collective agreement and it had every right to do so according to the Federal Court decisions it cited. Clause 46.07 clearly states that when an FS employee acts as an EX, he or she will not be subject to Article 12 (Overtime). De facto, that employee will be subject to all other collective agreement provisions.

[26]      I am compelled to agree with the bargaining agent's position here. The collective agreement was negotiated between the Treasury Board and the PAFSO, the same two parties to this dispute. They agreed in clause 46.07 of the applicable collective agreement that employees who act in EX positions would be ". excluded from the application of Article 12 (Overtime) for the period where the employee is subject to the Performance Management Program for Executives." By specifically excluding Article 12 from applying, the parties must mean that all other provisions do apply. To draw any other conclusion would, in my mind, not make any sense. Why stipulate that Article 12 does not apply if the entire agreement does not apply anyway- This conclusion is not, I believe, one that is consistent with the collective agreement wording.

[27]      The Treasury Board policy itself, titled Terms and Conditions of Employment (Exhibit G-6), states at paragraph 47.(A) that employees who act in higher level positions shall be subject to the terms and conditions of employment of the higher level position. However, this is subject to subsection 47.(B) which states:

47.(B) Management Category

An employee receiving acting pay as the result of an assignment to perform duties subject to the Management Category terms and conditions shall remain subject to the non-salary terms and conditions of the substantive level.

[28]      It seems evident that the non-salary terms and conditions of the substantive level apply. In this case, the substantive level is that of the FS. Therefore, the non-salary terms and conditions of the FS group apply, which includes check-off.

[29]      In light of this, I find in favour of the bargaining agent. In the December 19, 2002 letter to the PSSRB, the bargaining agent requests that the Board declare that the employer is obliged to continue the dues deductions and insurance premiums for these employees and that it is responsible for paying the arrears in both dues and insurance premiums caused by its wilful misconduct.

[30]      By virtue of this decision, I declare that the employer shall continue to deduct dues and insurance premiums in those situations where an FS employee acts in an EX position. Since the parties agreed that the practice of deducting union dues for FS employees acting in EX positions stopped in January 2003, I direct the employer to reimburse the PAFSO for the amounts owing.

Joseph W. Potter
Vice-Chairperson

OTTAWA, August 25, 2003.