FPSLREB Decisions

Files: 466-LP-225 to 233 466-LP-241 to 245

Parliamentary Employment and Before the Public Service Staff Relations Act Staff Relations Board BETWEEN C. BRECKENRIDGE, M. CARPENTIER, D. CHARETTE, D. LEDOUX, J. MARETT, D. SÉGUIN, E.S. SLONE, L.A. THERRIEN, M.J. VAN DEN BERGH, R.D. BLONDIN, L. BRANCHAUD, P. LEMOINE, J.-P. LORRAIN AND C.M. RUSSO

Grievors and THE LIBRARY OF PARLIAMENT Employer Before: Marguerite-Marie Galipeau, Board Member For the Grievor: Francine Cabana, Public Service Alliance of Canada For the Employer: Carole Piette, Counsel Heard at Ottawa, Ontario, February 14, 15 and 16, 1996, and June 11, 12 and 13, 1996.

Decision Page 1 DECISION This decision is further to the hearing of 14 grievances referred to arbitration by certain employees of the Library of Parliament whose names appear on the title page. These employees are seeking the application to them of Article 27 of the collective agreement applicable to the Library Technicians group and entered into by the Library of Parliament and the Public Service Alliance of Canada (expiry date: March 31, 1992).

This article reads as follows: ARTICLE 27 STATEMENT OF DUTIES 27.01 Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his position, including the classification level and an organization chart depicting the position's place in the organization.

Specifically, these employees allege that the statement of their duties is incomplete as it contains no mention of the fact that they are to perform their duties in both official languages.

Originally, these employees also had a claim regarding a second matter, namely, the inclusion of their working conditions in their job description. During the hearing, however, they abandoned this claim.

The parties have agreed that the testimonies of three of the technicians would be valid as evidence for all the grievances under study.

The employees produced the following witnesses: Louis Branchaud, Danielle Séguin, and Mary Janet Van Den Bergh.

The employer produced the following witnesses: Robert Nelson, Roland Philip Bonaventure, Roger Baggley, and Mike Graham.

Public Service Staff Relations Board

Decision Page 2 The testimony of Louis Branchaud may be summarized as follows. He has been a library technician (LT-4) since 1991, in the Clipping File Section. His job description (Exhibit A-4, page 3) states that he performs his duties in both official languages. In 1992, he receives an updated job description. There is no longer any mention that he performs his duties in both official languages.

Yet, his duties have not changed in any way, his employer has not relieved him of responsibility for performing his duties in both official languages, and he continues to work in both official languages.

In the past, he has received a bilingualism bonus (as a result of an arbitral award), but no longer receives one, as the applicable collective agreement (Exhibit A-1) says nothing on the matter.

His duties consist in reading newspapers (in both official languages), analysing them and answering requests for information from users (librarians, members of Parliament, embassies, etc.) in both official languages. The language proficiency level required for his position is CBC.

The testimony of Danielle Séguin may be summarized as follows. She has been a Reference technician (LT-4) since 1989. Her job description (Exhibit A-5) previously stated that she was to carry out her duties in both official languages. Then, in 1992, she received a new job description (Exhibit A-6) which does not mention that she is to carry out her duties in both official languages. She has been told that the reference to the official languages was removed out of a desire to standardize job descriptions and to delete these superfluous terms, and also that official languages have to do with staffing, not with classification.

Danielle Séguin's duties have not changed. She answers requests for information from clients (members of Parliament, etc.) in the two official languages. She compiles the information she gathers in both languages. She deals with clerks, librarians, technicians,

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Decision Page 3 politicians and their employees, as well as the public, in both official languages. She answers some 60 calls a day, in one or the other of the two languages.

The testimony of Mary Janet Van Den Bergh may be summarized as follows. She has been retired since 1994. From 1980 to 1994, she worked in the Index Section of the Library of Parliament as an "indexing" technician (LT-4).

In 1984, she received a job description (Exhibit A-7) stating that she was to do her job in both English and French. In 1987, she received an updated job description (Exhibit E-1) which also stated that she was to perform her duties in both languages. In 1992, she received a new job description (Exhibit A-8) which fails to mention the bilingual nature of her work and does not correctly reflect her job, especially the fact that she is required to produce a bilingual index of proceedings (exhibits A-9 and A-10). Yet, from 1984 to 1992, she carried out her duties in both official languages, including preparation of the index of proceedings of Senate committees (Exhibit A-9). Half of her work is done in French, the other half in English. There was no change in her duties right up until the day in March 1994 when she left her job to go and work on a special project.

The testimony of the witnesses produced by the employer is summarized below. Robert Nelson described his job as manager responsible for official languages and language training. He acts as a consultant to the House of Commons, the Library of Parliament and the Senate.

He runs the official languages program; advises senior management; offers interpretations of the Official Languages Act; and teaches courses to managers on all aspects of the Official Languages Act. He advises Library of Parliament managers on the philosophy and the development of systems related to language requirements, language training and all other areas covered by the Official Languages Act.

Like Parliament and the Senate, the Library of Parliament is subject to the Official Languages Act. It must be able to serve clients from the House of Commons in both

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Decision Page 4 official languages, as the Official Languages Act requires federal institutions to provide their services in both languages.

There is an administrative infrastructure whose purpose is to identify bilingual clientèle and the resources needed to serve this clientèle in both languages. Most of the infrastructure's systems derive from a policy adopted by Treasury Board in 1993.

Several organizations have systems whose purpose is to identify the resources needed to serve their clientèle. There is a system for identifying the language requirements of each position, a system for staffing bilingual positions in two categories (imperative and non-imperative), a system for administering language tests, and finally, a system of language training.

Thus, in order to acquire bilingual resources, the administration of the Library of Parliament, like that of the House of Commons or the Senate, must identify those positions that must be bilingual and the level of bilingualism required for each, that is, the language profile. The position is then staffed according to its language requirements.

All of the systems are subject to section 91 of the Official Languages Act. Consequently, when positions are being staffed, all language requirements must be determined objectively and according to the responsibilities of the position.

The information gathered by the various organizations for determining their language requirements is contained in various documents, notably, job descriptions, documents pertaining to the position classification, forms describing the language requirements.

The language requirements are determined based on the requirements of the position. A job description may serve a number of ends, such as to staff the position, to classify the position, to identify the language requirements, for career planning.

The testimony of Roland Philip Bonaventure may be summarized as follows.

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Decision Page 5 He has been the director of Personnel Services at the Library of Parliament since 1977. He chairs the committee responsible for reviewing job classifications, which uses the Hay classification system.

The job description and the classification standard are two tools used to classify a position. The job description is examined in light of the classification standard.

Prior to 1988, that is, before the Library of Parliament used the Hay system, the classification standard that was used contained staffing and classification components.

In 1988, it was decided to improve the classification system and adopt the Hay system, which is a "universal" classification system. This system proposes a certain way of writing job descriptions (Exhibit E-2). It does not contain many recommendations regarding language.

One of the objectives when writing a job description is to avoid confusion and stick to what is essential about the job to be done; in other words, to avoid lengthy passages and stick to the rationale of the position.

The language requirements specific to a given position are considered a staffing matter and are contained in various documents, such as the evaluation handbook, competition posters, language profiles.

When the job descriptions were redone in 1988, some departures from the writing style proposed by the Hay system were tolerated, such as the occasional use of superlatives, reference to the language used.

According to the witness, mention of the language used should be permitted only in the job descriptions of translators, interpreters and revisors. In other cases, the language used is, in his opinion, merely a communication skill.

In 1992, it was therefore decided to delete from job descriptions any reference to the languages used in carrying out the duties.

Public Service Staff Relations Board

Decision Page 6 The issue of the language used becomes relevant only when staffing a position. In cross-examination, the witness acknowledged that mentioning in the job description the languages used would not unduly lengthen the job description.

The testimony of Roger Baggley may be summarized as follows. He is the director of the Cataloguing Division and in charge of the Index Section. He helped write the job descriptions when it was decided to model them on the Hay system.

In 1992, it was decided to delete any reference to the language requirements of positions, as they were not a ratable factor under the Hay system. What is more, it was felt that the language requirements of a position were superfluous information and did not need to be included in the job descriptions.

Roger Baggley confirms that indexers are required to use both official languages in carrying out their duties.

The Hay system does not forbid including a reference to the languages used in carrying out duties; however, neither does it make such a reference mandatory.

According to this witness, use of the official languages is not a duty but rather a condition of employment.

The testimony of Mike Graham may be summarized as follows. He is the director of the Public Service Division of the Information and Technical Services Branch of the Library of Parliament.

The purpose of the division under his direction is to meet the information needs of members of Parliament and other authorized clients (who number about 3,000). The

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Decision Page 7 Division has five sections: the Reference Section, the Public Service Support Section, the Clipping File Section, the Branch Libraries Section, and the Public Information service.

Mr. Graham has helped review job descriptions; he has written and revised job descriptions, specifically those of library technicians. The Reference, Loans, Clipping File, Publication (Quorum) and Branch Libraries technicians all have their job description.

It was decided to delete any mention of languages from the job descriptions as it was not felt to be an element necessary to describe the nature of the work, but rather an element relevant when staffing a position and covered in documents, like the identification of bilingual positions (exhibits E-5 and E-6).

In rebuttal, Louis Branchaud, Danielle Séguin and Mary Janet Van Den Bergh again stated that their duties had not changed since their job description were rewritten. Danielle Séguin pointed out that, when she compiles information, she finds information in one language and must translate it for compilation in the other. When she is given information in English, she must translate it into French.

Arguments The argument of the employees' representative may be summarized as follows. The employer has not abided by Article 27 of the collective agreement, as it has not provided a complete and current statement of the duties and responsibilities of the positions.

The evidence shows that the employees' duties have not changed, and that the employees must still perform them in both official languages. At no time did the employer inform them that it was relieving them of the responsibility to perform their duties in both official languages.

The present case does not concern staffing or classification, but rather the content of the job description in light of Article 27 of the collective agreement and the obligation this article places on the employer. There is reason to consider, however, that the job

Public Service Staff Relations Board

Decision Page 8 description is indeed one of the tools used in staffing and classifying a position. Even Roland Bonaventure did not say that the employees had been relieved of the responsibility to do their work in both languages. The following case-law is cited:

Diane V. Carleton and Treasury Board - Board file 166-2-13847 V.A. Littlewood and Treasury Board - Board file 166-2-16044

The argument of the employer's counsel may be summarized as follows. The job descriptions are a complete and current statement of the duties and responsibilities of the employees within the meaning of Article 27 of the collective agreement.

Language is one way of performing the duties and responsibilities of the position; it is a way of communicating. Having said this, there is an expectation that the incumbents of the positions perform their duties in both official languages. This expectation is reflected in documents such as competition posters (exhibits E-3 and E-4) and the language profile (Exhibit E-6).

The basic classification tool is the job description. When classifying a position, the language requirements of the position are not taken into account. The job description is meant to be generic. All incumbents of the same type of position have the same job description, while the language requirements may vary from one position to another. The job description must lend itself to application of the Hay system.

The language requirements pertaining to a position are relevant when the position is being staffed, but need not be stated in the job description.

The preparation of compilations in English, then in French, is one task, not two. To compile in one language and then another is merely to perform the same task twice, in two different ways.

Furthermore, employees could not refuse to do their job in both languages, claiming that such a requirement is not written in their job description. Public Service Staff Relations Board

Decision Page 9 Since the advent of the Parliamentary Employment and Staff Relations Act, employees have been entitled to refer a grievance concerning their classification to adjudication. Consequently, the employer has thought it advisable to update the job descriptions and decided to use the Hay system. This system recommends that the use of superlatives, among other things, be avoided when writing job descriptions. Reference to the languages used in performing the work is not consistent with this system. The following case-law is cited:

Bonnie L. Taylor and Treasury Board, Board file 166-2-20396 Public Service Alliance of Canada and the Library of Parliament, Board file 485-L-3.

Reasons for Decision The grievances are allowed on the grounds that the statement of the duties and responsibilities of these employees is not "complete and current" as required by Article 27 of the collective agreement.

First of all, in a given day, these employees work sometimes in English, sometimes in French. Even in the opinion of the employer's counsel, this is among the employer's expectations. The use of both languages is so closely linked to the performance of the duties and responsibilities of these employees that, in my opinion, it cannot be dissociated.

The use of English and French is more than a communication skill, as the employer claims. In fact, once this skill is acquired, its materialization becomes a task in itself, that is, a duty which, far from negligible, underlies all the other duties. Therefore, to be complete, the statement of duties must reflect this duty.

The use of French and English is also a responsibility, that is, "an obligation to fulfil a duty, a commitment" [translation], and it seems to me that its inclusion in the employees' "statement of duties and responsibilities" is relevant.

Public Service Staff Relations Board

Decision Page 10 The job description, or, to use the expression enshrined in the collective agreement, "the statement of duties and responsibilities," is the cornerstone of the employment relationship between these employees and the Library of Parliament. It is a fundamental, multipurpose document which is referred to with regard to classification, staffing, remuneration, discipline, performance evaluation, identification of language requirements, and career planning. It is erroneous to narrow its scope solely to use with regard to classification. It must be sufficiently complete to lend itself to the other uses I have just mentioned.

The employer cites the Hay classification system in support of its position. Now, this system of classification is only one of several. It is neither a statute, nor a regulation; it is a classification tool. The employer is free to use it. Whatever classification system is chosen, however, it cannot take precedence over the legal obligation contracted by the employer to provide employees with a "complete and current statement" of their "duties and responsibilities".

Moreover, the employer has not convinced me that the Hay system prevents mention of the languages in which the work of these employees is done. None of the documents filed demonstrates that such mention is prohibited under the Hay system. It appears, moreover, from the testimony of the employer's witnesses, that the experts who developed the Hay system did not really consider this matter.

The employer's witnesses have stressed the need to remove superfluous expressions from job descriptions, delete lengthy passages and avoid terms and writing styles that lead to confusion.

It is my view that the words "in English and in French" or "in both official languages" far from creating confusion, rather provide an essential preciseness and are certainly not superfluous, as they reflect both a duty, a skill and an essential characteristic of the employees' work. I note, moreover, that the employer's witnesses have acknowledged that mention of the languages used did not lead to confusion and undue length. It seems to me that mention of the languages used by the employees in no way prejudices the employer, whereas the omission of such mention does prejudice the employees, as it overlooks an essential aspect of their duties.

Public Service Staff Relations Board

Decision Page 11 According to the evidence, the Hay system is a "universal" classification system used in the public and private sectors. Whatever the merits of this system, I think that the Library of Parliament should adapt it to its own environment, making any necessary adjustments owing to the particular nature of a workplace in which the use of both official languages is an inherent part of the duties and responsibilities of these employees.

On these grounds, the grievances are allowed and the employer is ordered to provide these employees, within 60 days of the date of this decision, with a complete and current statement of their duties and responsibilities, including mention of the fact that they carry out their duties and responsibilities in both official languages.

Marguerite-Marie Galipeau, Board Member

OTTAWA, September 12, 1996. Certified true translation

Serge Lareau

Public Service Staff Relations Board