FPSLREB Decisions

[1]    By letter dated October 17, 2003, the Professional Institute of the Public Service of Canada (the bargaining agent) is seeking from the Board a declaration that the employer is time-barred from seeking a review of designated positions pursuant to sections 78 and following of the Public Service Staff Relations Act (the Act). The penultimate paragraph of that letter reads as follows:

[Translation]

Since service of notice to bargain, the employer has not taken any action with respect to "designations". The Institute is of the opinion that the employer's right with respect to designations is therefore forfeit. The Institute is asking the Board to render a final determination on the issue of "designations", pursuant to the provisions of section 78.2 of the Act.

[2]    The bargaining agent and the Canadian Food Inspection Agency (the Agency or the employer) are currently engaged in their third round of collective bargaining since the creation of the Agency.

[3]    In order to understand the present difference, it is important to understand the history of collective bargaining between the two parties.

[4]    The Agency was created as a separate employer in 1997 and during the first round of collective bargaining between the parties to this dispute, they were able to agree on the designation of VM positions prior to a scheduled hearing before a designation review panel. The agreement of the parties was reflected in Board decision 181-32-436. During the next round of negotiations, the parties were unable to agree and, as a result, a designation review panel was constituted and filed a unanimous report with respect to the VM group in the fall of 2001.

[5]    Following the release of the review panel's recommendations, the bargaining agent wrote to the Public Service Staff Relations Board (the Board) on October 30, 2001, to advise that it was unlikely that the parties would come to an agreement. The bargaining agent also stated that since the time limits referred to in subsection 78(1) had not been respected, all findings of the committee were null and void, as was the employer's right to claim designated positions. The Agency responded to the conclusions of the designation review panel on November 1, 2001, advising the Board that pursuant to sub-paragraph 78.2(1), it wished to refer the matter of the disputed positions to the Board and, in that context, requested an extension of time as per section 78.1(3).

[6]    A hearing was set for the start of 2002 so that the Board could decide the issue and the parties were advised that the Board would deal with the issue of timeliness at the outset of the hearing. However, the hearing never occurred, since the parties then opted for the binding arbitration dispute resolution process outlined in section 61 of the Act. A collective agreement was signed covering the period from October 1, 2000, to September 30, 2003.

[7]    On July 14, 2003, the Institute applied to the Board to record an alteration in the process for resolution of a dispute applicable to the VM bargaining unit. The bargaining agent specified that referral to conciliation was now to apply. On July 21, 2003, the Board issued the decision in Professional Institute of the Public Service of Canada v. Canadian Food Inspection Agency, 2003 PSSRB 61, and, pursuant to section 39 of the Act, recorded the process of referral of a dispute to conciliation as the process for the resolution of a dispute specified by the bargaining agent. Contemporaneous with the bargaining agent's request to the Board, it also provided the employer with notice to bargain. As mentioned previously, in a letter to the Board dated October 17, 2003, the bargaining agent requested that the Board render a final decision on the issue of designations in conformity with subsection 78.2 of the Act.

Submissions of the Parties

[8]    According to the bargaining agent's letter of October 17, 2003, the employer has done nothing with respect to the issue of designations since notice to bargain was filed, and the bargaining agent is of the opinion that the employer's rights in this domain are foreclosed. It has therefore asked that the Board render a final decision under s. 78.2 of the Act.

[9]    Subsection 78.2 (1) of the Act reads as follows:

78.2(1) Where, after considering the recommendations of a designation review panel, the parties continue to disagree on whether any positions have safety or security duties, the employer shall, not later than notice day, refer the positions in dispute to the Board.

[10]    In accordance with sub-paragraph 78.1(2), notice day, for the purposes of sub-sections 78.1 and 78.2, is the day that is three months before the day on which the collective agreement ceases to operate.

[11]    The employer, in its response dated November 7, 2003, claimed that it had not forfeited its right to designations. The employer argues that the designations that were in effect during the August 1998 round of bargaining continue to remain in effect until the Board makes a determination otherwise. The employer states that the Board's decision in file 181-32-436 is still legally binding. The employer proposes that "both parties have an interest in pursuing the question of designations" and must do so pursuant to the Act.

[12]    The Board took note of the correspondence forwarded to it by both parties and on February 10, 2004, requested written submissions. The Board asked the parties for submissions on the impact of subsection 78.4(1) of the Act on the issue of designations during this round of collective bargaining, keeping in mind the Board's decision in 181-32-436.

[13]    The Institute's submissions were dated March 4, 2004, and argued that the employer's right to propose designations was forfeited since it had made no effort to approach the bargaining agent regarding the issue of designations within the timeframes specified in section 78.1 of the Act.

[14]    The bargaining agent argues that under section 78.1 of the Act, the parties must meet no later than three months before notice day to review the position of each employee in the bargaining unit with a view to determining whether the position has safety or security duties. It argues that the employer was required by the Act to conduct a review of the designations with the bargaining agent within this specific time frame and did not do so. Since it did not, and since the employer has made no attempt to notify the bargaining agent or the Board regarding any list of positions that it wishes to have reviewed, any proposals are untimely and the employer ought to be considered as having forfeited any right to make designations.

[15]    The bargaining agent also argues that the 1998 Board decision on designations is inoperative "simply by virtue of the creation of CFIA, which has a different structure and mission". It argues that these designations "must be ignored" as they are "more reflective of Agriculture Canada history, while the parties. had just come into existence with little industrial relations practice".

[16]    The bargaining agent further argues that it is no longer bound by any previous rulings or understandings relating to designations given that the "playing field" and "rules of the game" had been unilaterally changed by the employer when, in 2000, it sought and obtained an Order in Council suspending arbitration for that round of collective bargaining.

[17]    The employer responded on March 10, 2004, and it argued that section 78.1 deals with the initial designation review of positions within an organization. It argued that these designations, approved by the Board in August of 1998, formed the basis of the VM "designations profile" for the Agency and that authority for review of these designations falls under subsection 78.4(2) that reads as follows:

78.4(2) Where the employer or the bargaining agent considers that a position has or does not have safety or security duties, it shall notify the other in writing and they shall meet and review the position to determine if it has or does not have safety or security duties.

[18]    The employer argues that nothing in that subsection imposes a time restriction on either party as to when such a review must occur. In its response, the employer also stated that it intended "to review the existing designation profile for the VM Group as per subsection 78.4(2)".

[19]    The reply of the bargaining agent is dated March 16, 2004, and states that the bargaining agent recognizes that the 1998 designations are those in effect until such time as the Board makes a determination otherwise.

[20]    As the bargaining agent points out in its submissions to the Board, it had raised this same issue in 2001 during the prior round of collective bargaining, but the matter had gone nowhere given the subsequent events between the parties.

Reasons for decision

[21]    Although it was not initially clear, the submissions filed by the bargaining agent on March 16, 2004, make it clear that the bargaining agent now considers that the designations as set out in decision 181-32-436 continue in force and effect. On this issue, both parties agree.

[22]    Where the parties disagree is with the bargaining agent's contention that the employer is foreclosed from making any changes in the designations as set out in the Board's aforementioned decision, based on the allegation that it has missed the timeframes set out in the Act.

[23]    The bargaining agent has requested that the Board make a final determination in accordance with section 78.2 of the Act. Section 78.2 reads as follows:

78.2(1). Where, after considering the recommendations of a designation review panel, the parties continue to disagree on whether any positions have safety or security duties, the employer shall, not later than notice day, refer the positions in dispute to the Board.

(2) The Board shall review the positions in dispute and, after giving each party an opportunity to make representations, determine if the positions have safety or security duties.

(3) Where the Board determines that none of the positions in dispute have safety or security duties or that some do not, the Chairperson shall send a statement of the determination to the parties.

(4) Where the Board determines that some or all of the positions in dispute have safety or security duties, the Board shall designate those positions as having those duties and the Chairperson shall send a notice of the designation to the parties.

(5) Subject to section 78.4, a determination of the Board under subsection (3) or (4) is final and conclusive for all purposes of this Act.

[24]    Section 78.2 speaks to the situation where the Board renders a decision on the issue of whether or not a position should be designated. Also, such a decision can only be rendered where the parties continue to disagree on the status of positions once they have considered the recommendations of a designation review panel. This is not the case here.

[25]    It is my belief that this section does not apply in these circumstances, given that the present dispute arises out of a new round of collective bargaining and not from recommendations made by a dispute resolution panel established during this round of collective bargaining. However, this does not mean that the bargaining agent is without recourse in this situation. The bargaining agent is, in effect, requesting that the Board interpret sections s. 78.1 and 78.4 in light of the present situation. Subsection 78(3) of the Act specifically gives to the Board not only the jurisdiction, but also the obligation, to make the determination requested. The employer has not objected to the Board's jurisdiction to make this determination.

[26]    Having decided that the Board has the jurisdiction to consider the bargaining agent's request, I must now turn my attention to the substance of the bargaining agent's claim that any review of designations is now foreclosed. This issue concerns the interplay between sections 78.1 and 78.4.

[27]    Section 78.1 makes specific reference to the issue of time limits. In particular, subsection 78.1(2) states:

78.1(2) Where a collective agreement or an arbitral award is in force, the references to notice day in this section and section 78.2 are references to the day that is three months before the day on which the agreement or award ceases to operate and, where no collective agreement or arbitral award is in force, this section and section 78.2 apply without reference to the limitation periods set out therein.

[28]    Therefore, the time limits referred to in section 78.1 are connected to the notion of "notice day". Section 78.1(4) states that:

78.1(4) The parties shall, not later than three months before notice day, meet and review the position of each employee in the bargaining unit to determine if the position has safety or security duties.

[29]    The bargaining agent argues that since the employer has taken no steps at all regarding the issue of designations since notice to bargain was filed, it is now foreclosed from requesting any changes, or, to use the terminology set out in the Act, from requesting a "review" to the designations as they now exist.

[30]    The employer argues that section 78.1 deals solely with the initial designations review within an organization and that authority for the ongoing review of designations falls under subsection 78.4(2). Section 78.4 not only states that designations remain in effect until they are changed pursuant to the section, but also provides, in subsection 78.4(2), for the possibility of a "review" of positions that were previously designated. According to the employer, the Act provides that such a review can occur if either party notifies the other in writing that it considers a position has or does not have safety or security duties. According to this provision, the parties shall "meet and review the position to determine if it has or does not have safety or security duties". The employer argues that subsection 78.4(2) imposes no time limit on this review process, as is made clear by subsection 78.4(4). Thus, as I stated above, the interplay between sections 78.1 and 78.4 lies at the crux of the matter before me.

[31]    In order for the employer to be correct, sections 78.1 and 78.4 must be separate and distinct sections and the "reviews" referred to in each must be separate and distinct processes. The bargaining agent, on the other hand, argues that they are one and the same thing. On this issue, I find that I am in agreement with the employer.

[32]    At this juncture, I propose to review the statutory scheme of section 78. The text of section 78 and following as it reads today results from amendments brought to the Act by the Public Service Reform Act, 1992, S.C. c. 54. Section 65 of that Act repealed former section 78 of the Act and replaced it with the wording found in sections 78 to 78.5 of the Act. Although the wording of this section is not a model of clarity, my understanding of the scheme which came into force on June 1, 1993 (by OIC SI/1993-058), is as outlined in the following paragraphs.

[33]    When reading subsections 78(1) and (2) together with the process set out in sections 78.1 and 78.2, I conclude that Parliament's intent was to apply such a scheme only to the first request for conciliation after the coming into force of the section, i.e. after June 1, 1993. It imposed on the parties an initial obligation to review all positions in the bargaining unit and either designate them or identify them as not having duties the performance of which are necessary for the safety or security of the public. It also stated that no conciliation can occur until such time as the position of each employee is "settled" in terms of either being designated or not. This section was meant to provide a clean slate for both parties, a base position following immediately upon the coming into force of the Public Service Reform Act, from which both parties could then move forward. According to subsection 78(1), the process for the review of all positions in the bargaining unit is set out in section 78.1 or 78.2:

78(1) The Chairperson shall not, pursuant to a request under section 76 in respect of a bargaining unit, act under subsection 77(1) or (2) until the position of each employee in that bargaining unit, in accordance with section 78.1 or 78.2,

(a)   has been designated as having duties consisting in whole or in part of duties the performance of which at any particular time or after any specified period is or will be necessary in the interest of the safety or security of the public; or

(b)   has been determined as not having the duties
       described in paragraph (a).

[emphasis added]

[34]    Therefore, the "initial" or "base" review of each position in the bargaining unit had to proceed in accordance with the process as set out in section 78.1 or 78.2. Sections 78.1 and 78.2 delineate a process whereby the parties meet and attempt to agree upon which positions should be designated and, if they are unable to agree, set out the process whereby first a designation review panel and second, if the parties continue to disagree, the Board, will either provide recommendations or settle the matter. Once the "base" review has been completed, and in accordance with paragraph 78.4(1), the designations resulting from the process set out in sections 78.1 and 78.2 remain in effect until changed pursuant to section 78.4. As I have previously stated, both parties agree that the terms of section 78.4(1) apply in this case, the "base" review having been completed long ago.

[35]    Once that initial phase is completed, as the parties have in this case, the parties then operate under subsection 78(3) and sections 78.3 and 78.4. Subsection 78(3) refers to a situation where designations have already been agreed upon by the parties or set by the Board, and are being "reviewed under section 78.4". I will refer to this type of review as on "ongoing" review. Subsection 78(3) reiterates the same philosophical approach as is set out in subsection 78(1) and states that the Chairperson shall not act under subsections 77(1) or (2), that is, shall not appoint a conciliation board until such time as the designations issue has been resolved. While this subsection uses the word "review" and while it refers to subsection 78.4 which also uses the word "review", it is clear to me that the type of review referred to differs in its nature from the review which takes place under the auspices of subsection 78(1). In fact, subsection 78(1) itself does not use the word "review". It does, however, state that the process in sections 78.1 and 78.2 applies and these two sections make use of the word "review". The problem in interpreting section 78 as a whole is the indiscriminate use of the word "review". The section refers to what I have described as an "initial" or "base" review, then it refers to the "ongoing" review which must occur every so often in any employer-bargaining agent relationship under the Act and finally there is the "review" that the Board undertakes pursuant to section 78.2 in a situation where the parties do not agree with the recommendations of the designation review panel. While the legislative drafters have chosen to use the word "review" in several places in section 78, I am of the view that they refer to different and distinct processes, occurring at different times.

[36]    Sections 78.1 and 78.2 follow subsection 78(3) and set out, as I have indicated above, the process by which an initial review must take place. Section 78.3 merely clarifies the status of a position which is added to the bargaining unit once the initial review has been completed.

[37]    Section 78.4 is the process by which the parties are enabled to conduct ongoing periodic reviews of positions in the bargaining unit and thereby respond to changing times. While the initial review of bargaining unit positions under subsection 78(1) is constrained by the time limits as set out in section 78.1(2), no such time limits exist in section 78.4. In reviewing the various sections as a whole, it is clear to me that the legislative drafters were very cognizant of the issue of time limits, having provided a limitation period for the initial review of positions in subsection 78.1(2) and having provided for the extension of this limitation period in subsection 78.1(3). As well, sections 78.1 and 78.2 make several other references to the timing of actions with regard to designating positions. Subsection 78.4(2) on the other hand, makes no reference to such a limitation period and indeed, subsection 78.4(4) specifically provides that the time limits set out in subsections 78.1(5) to (10) and section 78.2 (those sections which delineate the process for reviewing positions) apply without reference to the limitation periods set out therein.

[38]    Any party is therefore free at any time, but before a request for conciliation pursuant to subsections 77(1) or (2) is made (see subsection 78(3)), to notify the other party in writing that it wishes to review positions to determine whether they have or do not have safety or security duties. Clearly, the employer has done that in this case and no request for conciliation has yet been made to the Board by either party.

[39]    Subsection 78.4(1), as described earlier in this decision, sets out the effect of the initial designation process, confirming that the results of that process are applied until such time as the designation of the position in question is changed pursuant to section 78.4.

[40]    Subsection 78.4(2) is a broad section that loosely refers to the review of positions that have already been designated through the initial review process. Such a review can occur at any time. The only reference to time limits is contained in subsection 78.4(3), which imposes a minimum period of one year between ongoing reviews. This section makes no reference, as does subsection 78.1(2), to limitation periods or notice days. According to subsection 78.4(2), the request for an ongoing review can be made at any time. For example, as outlined in section 78.3, a position can be added to the bargaining unit two months after the completion of negotiations and the employer can be of the opinion that it should be designated. In such a case, the employer can notify the bargaining agent of its position and, in accordance with subsection 78.4(2), the parties shall meet and review the position. The reference in subsection 78.4(2) could also apply to reviews of positions that take place in the context of negotiations. In the case of the addition of a position outside the context of negotiations, the issue of timeframes is not one of importance, as there is no urgency involved. However, in the context of collective bargaining, as is the case here, timing is important. If one accepts, as I have, that ongoing reviews are the province of section 78.4 alone and that this section is capable of standing alone, one must also accept that a request for review can come at any time from either party.

[41]    As stated earlier, further evidence that section 78.4 is not subject to time limits is found in subsection 78.4(4), which expressly ousts the limitation periods as expressed in subsections 78.1(5) to (10) and section 78.2.

[42]    Although this situation may be seen as problematic in terms of negotiations, I can only interpret the sections of the Act as they are written. One would expect that a responsible employer would not use these provisions solely for the purpose of slowing down the negotiations process or otherwise prevent access to the dispute resolution process in case of an impasse. Such tactics would undermine the objectives and purpose of the Act, and the Board would not hesitate to sanction such a conduct were it seized of the matter through the application of other provisions of the Act.

[43]    With respect to the bargaining agent's submission that the 1998 designations "must be ignored" given that, according to the bargaining agent, they are more reflective of the Agency's history as Agriculture Canada and were decided at a time when the parties had just come into existence, with all due respect, I cannot agree. The designations issue was settled at a time when both parties existed and the law presumes that each side has sufficient experience in the field of labour relations to represent its interests properly. While the bargaining agent argues that the Board decision of 1998 should be found to be "inoperative" and should be viewed in the context of 2004, the Act does not envisage or permit this conclusion. In accordance with the provisions of the Act, should either party wish for designations to be viewed in a new context that is more reflective of present-day realities, the review process is available precisely for that purpose. Further, this argument was advanced by the bargaining agent in its submissions dated March 4, 2004, whereas in its final submission to the Board dated March 16, 2004, it expressly recognizes that the 1998 designations are those in effect.

[44]    Finally, with respect to the bargaining agent's submission that it is no longer bound by any ruling or agreement on designations, given the employer's action in the 2000 round of bargaining in obtaining an Order in Council suspending access to arbitration, I simply cannot agree. In this round of bargaining, the bargaining agent sought and obtained the dispute resolution method of its choice. Further, and more importantly, I see nothing in the Act that would support the position espoused by the bargaining agent.

[45]    I have therefore come to the following conclusions. First, I find that the Board's decision in file 181-32-436 is still legally binding until such time as the designations of positions in the VM bargaining unit are changed pursuant to section 78.4. Second, I find that the employer is not foreclosed from requesting a review of designations pursuant to section 78.4. The present request is therefore denied and the parties may pursue their discussions in the current round of bargaining regarding designated positions at the Agency.

Yvon Tarte,
Chairperson

Ottawa, June 16, 2004.