FPSLREB Decisions

Heard at Ottawa, Ontario,
September 12 to 15, 2016.

REASONS FOR DECISION

I. Complaintbefore the Board

1         The complainant, the Public Service Alliance of Canada (PSAC), is an employee organization that meets the definition of “bargaining agent” set out in the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). Its members are employees of the respondent, the Treasury Board (TB or “the employer”).

2         On June 28, 2016, the complainant filed a complaint with the Public Service Labour Relations and Employment Board (PSLREB) under s. 190(1)(c) of the Public Service Labour Relations Act (PSLRA), as the Act was then entitled. The essence of the complaint is set out at paragraphs 4 through 7 and 10 of a 10-page attachment to it (“the Addendum”), which state as follows:

4. The Complainant submits that the Respondent has violated section 107 of the Public Service Labour Relations Act by changing terms and condition [sic] of employment for employees during the statutory freeze period;

5. This change is also contrary to the respective collective agreements, the Treasury Board Directive on Terms and Conditions of Employment and sections 7 and 11.1 of the Financial Administration Act.

6. Specifically, the Respondent has introduced the Phoenix pay system – an automated payroll system that has resulted in major systemic pay administration problems for PSAC members;

7. In particular, since the launch of Phoenix in February 2016, the Respondent has paid PSAC members inconsistently inaccurately and sometimes not at all. Some members, including those with disabilities and on maternity leave, have faced significant financial hardship and disruption to their daily lives. This includes but is not limited to an inability to pay rent, mortgage and other regular household bills.

…

10. The Complainant submits that compensation is at the heart of the employer-employee relationship. It is arguably the most fundamental term and condition of employment.

3         As remedies, the complainant seeks a declaration that the employer violated s. 107 of the Act and immediate redress in the form of financial compensation for any related economic losses or psychological harm suffered by any affected PSAC members.

4         On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act,andthe Federal Public Sector Labour Relations Act.

5         On September 4, 2018, David Orfald, who attended and gave evidence at the hearing, was appointed a full time member of the Board. There has been no discussion between this panel and him about this matter.

6         Aside from contesting the merits of the complaint, the employer contends that the Board lacks jurisdiction to hear the complaint because it was untimely. The employer also alleges that the matter was brought before the wrong forum, meaning that pursuant to s. 191(2) of the Act, it should have been brought forth as a grievance.

7         As explained below, I find that the complaint was filed well outside the 90-day period within which it had to have been presented and I therefore lack jurisdiction to hear it.

II. Summary of the evidence

8         Before early 2016, pay administration for the Government of Canada, including the employer, was handled through the Regional Pay System. By 2006, it was about 40 years old, and its maintenance was dependent on the specialized knowledge, skills, and experience of employees, of whom it was anticipated that many would retire within three to five years.

9         As of the hearing, Mr. Orfald was employed at the PSAC in its representation branch. In 2005 and 2006, he was a senior research officer there, and at that time, he was engaged in a roundtable process with members of the compensation community, hearing concerns about problems with the pay system. He stated that he appeared before the House of Commons Standing Committee on Government Operations and Estimates. Entered into evidence was a copy of the Report of the Standing Committee on Government Operations and Estimates dated May of 2008 and entitled, “The Right Pay for Valuable Employees”, which stated in part as follows:

[On page 61:]

…

The most noticeable aspect of the problems with the federal government’s compensation system is certainly that some employees are not receiving pay cheques in a timely manner, or are receiving cheques made out in the wrong amount.

[On page 63:]

…

… The latest information received by the Committee indicates that some compensation units in the federal government are still backlogged on compensation files and that this could happen again given employees’ heavy workload. Moreover, the public service is still having difficulty retaining employees, who are leaving for other federal public sector agencies for better pay. The Committee is therefore of the opinion that the government must address the roots of the problem, which can be grouped into three broad categories.

…

[On page 67:]

…

During its deliberations, the Committee was surprised to learn that compensation advisors in the various departments still perform transactions using systems that were developed about 40 years ago. Various members of the Committee were dismayed that the government is so far behind in its technology.

The federal government has, for a number of years, been aware that it must replace outdated and costly compensation and pension systems. Modernization has been delayed by various budgetary, technological and operational factors.

…

10        Entered into evidence was a news release from the Prime Minister’s office dated August 19, 2010, announcing the new government pay centre in Miramichi, New Brunswick. It stated in part as follows:

… On August 19, 2010, Prime Minister Stephen Harper announced that the Government of Canada is modernizing its 40-year-old-pay system for public servants and consolidating pay services in a new Centre of Expertise in Miramichi, New Brunswick. This will result in:

• The creation of 550 Department of Public Works and Government Services jobs in the city.

…

This new plan will apply up-to-date technology to replace outdated and labour-intensive information technology systems, saving Canadians money over the long run and ensuring more efficient service.

…

11        The project became known as the “Transformation of Pay Administration Initiative” (“the TPA project”).

12        Mr. Orfald said that after seeing that news release, the PSAC recognized that both the technology and the human resources (HR) for the old pay system needed improving. He said that the PSAC was concerned because it appeared that 550 employees would end up doing the work of the estimated 2000 to 2200 doing it at that time and because the work, which was being done by employees spread across the country, including a significant number in the National Capital Region, would be transferred to Miramichi.

13        As of the hearing, Rosanna Di Paola was the associate assistant deputy minister (AADM) at Public Services and Procurement Canada (PSPC) in its Accounting and Compensation Branch and was responsible for overseeing the TPA project. In October of 2013, she went to PSPC from Public Safety Canada, where she had been the comptroller and deputy chief financial officer.

14        Ms. Di Paola testified that the Government of Canada’s payroll system is the largest in the country, handling approximately 300 000 employees in over 101 different departments or branches and administering 27 different collective agreements with approximately 80 000 business rules. She said that the TPA project consisted of the following two major components:

1. the Pay Consolidation Project, which was to consolidate and centralize the administration of the pay services in one location (“the pay centre”); and
2. the Pay Modernization Project, which was to replace the existing technology with a commercially available off-the-shelf solution (the technology component).

15        In simpler terms,

• the Pay Consolidation Project was about the people who administered the pay system. About 2000 to 2200 people across the country in several locales, departments, and divisions (a large number in the National Capital Region) administered pay for the employer. In conjunction with the Pay Modernization Project, the plan was to reduce that number to approximately 550 and to centralize them in Miramichi; and
• the Pay Modernization Project was about the technology that they would use to administer the pay of the roughly 300 000 employees.

16        Ms. Di Paola said that Miramichi was chosen because from 2006 to 2009, when the government was assessing its requirements for fixing the pay system, one of the biggest challenges was that more than 40% of the people working with the old system were due to retire or would leave the public service, and the government needed to attract new employees to the work and train them. According to Ms. Di Paola, most of the employees were in Ottawa, Ontario, and the government wanted to centralize the work where retention was not an issue. Miramichi had a high unemployment rate and a bilingual workforce.

17        The name eventually adopted for the new compensation system technology was “Phoenix”, which was chosen by way of a contest. The technology would consist of an off-the-shelf computer system that would be configured and customized to incorporate as much as possible and streamline paying federal public service employees. However, the complexity of the government did not allow the complete and total automation of all the different pay rules and terms and conditions of all the different collective agreements; as such, some manual inputting would be required.

18        PeopleSoft is an HR management system used by the employer. Without getting into too much detail, it tracks the types of leave employees have and use during the course of their employment. At the time of the TPA project, some, but not all, employer departments and branches used PeopleSoft. Ms. Di Paola stated that when the government put out its request for proposal with respect to the Pay Modernization Project portion of the TPA project, one of the requirements was that the new technology had to seamlessly integrate with PeopleSoft.

19        On March 30 and April 7, 2011, the TB and the PSAC signed an agreement entitled, “Transformation of Pay Administration Initiative Union Consultation Framework” (“the TB-PSAC Agreement”). This was in accordance with a letter of understanding that they had signed on December 1, 2010, in negotiations to renew the Program and Administrative Services (PA) collective agreement. The TB-PSAC Agreement set out certain terms relating to the parameters within which they agreed to consult on the TPA project, and it became an appendix to a number of collective agreements between them and between the PSAC and separate employers.

20        As part of the TB-PSAC Agreement, the parties agreed to form the Union-Management Consultation Committee (“the TPA-UMCC”), which provided a forum for consultation on the implementation of the TPA project in accordance with collective agreements and for discussing transition strategies with respect to employees. Mr. Orfald testified that he was a member of the TPA-UMCC, that it did meet, and that an active consultative process was established.

21        Mr. Orfald said that the PSAC had the following three primary concerns:

1. that with respect to the creation of the pay centre, a large number of the employees outside Miramichi would lose their jobs, and the concern was that the transition (the workforce adjustment or WFA) be done properly;
2. that there would be a continuity in the transition process, meaning that the existing compensation advisors would not leave for other jobs during the change and the implementation of the new system; and
3. that the number of employees operating the new system would be appropriate and correct to carry out the work.

22        As of the hearing and since May of 2012, Christopher Aylward was a PSAC executive vice-president. He explained the PSAC’s structure. It is composed of 17 component unions aligned along departmental lines, each with a president. Through its components, it represents between 130 000 and 135 000 federal public servants. He said that there are also a number of directly chartered locals operating primarily in the private sector.

23        He said that the PSAC is divided into 7 regions, each of which has a vice-president. The PSAC’s governing body is the National Board of Directors, which consists of 26 directors, including 17 component presidents, 7 regional vice-presidents, the national vice-president, and the president.

24        Mr. Aylward testified that after he was elected, the PSAC’s president asked him to sit on the TPA-UMCC; he was its co-chair. He said that he attended some but not all the meetings and that he did attend what appeared to be the last meeting, on December 4, 2015. A copy of the minutes of that meeting (“the December 4 minutes”) was entered into evidence.

25        At the time of the hearing, Donna Lackie was the president of the Government Services Union (GSU), which is one of the PSAC’s 17 component unions. She testified that she became involved with the TPA project in 2012. She stated that she attended the August 28, 2012, TPA-UMCC meeting, and so did Mr. Orfald. When she was asked about her role on the committee, she said that it was oversight.

26        Ms. Lackie said that she was there at the beginning of the hiring and the training of the new people in Miramichi and that as of January of 2012, about 125 people worked there, which she identified as the first wave.

27        Ms. Lackie testified that at the August 28, 2012, TPA-UMCC meeting, the GSU’s concerns were as follows:

• the reasonableness of the training and it being interrupted constantly; and
• few in the pay and compensation community were willing to move to Miramichi, her understanding being that people just did not want to live there or move there.

28        The December 4 minutes indicated that the Pay Consolidation Project was on schedule, on scope, and on budget and that the final transfers of 12 000 pay accounts to the pay centre were to be completed on December 7, 2015, which would bring it to its full scope of 92 000 accounts. It further stated that the pay centre had its full complement of 550 staff. With respect to the Pay Modernization Project, it indicated that the change to the new technology, which had been scheduled to start in the fall of 2015, was to be rolled out in two phases, the first in February, and the second in April of 2016.

29        On January 21, 2016, PSPC emailed the TPA-UMCC, advising its members of the schedule, by department, of the transitioning of pay from the old system to the new Phoenix system (identified as a “rollout” or “going live”). Thirty-four departments and branches were scheduled to rollout on February 24, 2016, while 67 were scheduled for the April 2016 rollout.

30        The evidence of Ms. Di Paola and the employer’s documentary evidence suggested that the testing of the Phoenix system before the February go-live date disclosed very few issues and that the system should have run properly once the first transition in February took place. A decision was made on January 29, 2016, to go live on February 24, 2016, for the pay date of March 9, 2016.

31        The PSAC entered into evidence a copy of an Ottawa Citizen article dated February 28, 2016, by Kathryn May and entitled, “Federal government rolls out new pay system” (“the February 28 article”), the relevant portions of which are as follows:

A new automated pay system the federal government is rolling out in departments will save millions in overpayments to Canada’s public servants and speed up processing that has caused pay glitches and delays, say officials at Public Services and Procurement.

The new off-the-shelf system, known as Phoenix, went live last week - four months later than planned – with the first round of 34 federal departments. The first pay cheques issued using the new self-serve system will be March 9.

The second round of 67 departments will follow in April.

Phoenix is also the last of the two-stage “pay transformation” that the previous Conservative government initiated in 2009 when it decided to put the pay centre in Miramichi, N.B., as a trade-off for jobs lost when it closed the long-gun registry.

…

The government has the biggest and most convoluted pay system in Canada with more than 80,000 rules and regulations built into the new system that compensation advisers had to master.

Until Miramichi, departments managed their own pay with about 2,500 in-house compensation advisers. There are now 550 pay advisers in Miramichi and 790 remaining in departments.

The pay transformation plan was divided into two major projects. The first was to consolidate all pay services for 46 departments in Miramichi and transfer the 184,000 pay accounts by December 2015. Then came the Phoenix installation and the transfer of 101 departments in two waves.

But the project had growing pains. It hit a major glitch last summer when hundreds of employees complained about delayed and botched payments and blamed the pay centre. The department attributed some of those delays to a new pay-in-arrears plan, which meant new employees waited four weeks before getting their first paycheque.

At Miramichi, however, pay advisers complained they couldn’t keep up with the pace and “tsunami” of files departments were transferring. Many of the employees were new and needed to be trained. They complained about backlogs, burnout, poor training, lack of support, and little coaching for difficult files.

The Public Service Alliance of Canada stepped in and urged the department to slow the pace of files or hire more staff to ensure they can handle the volume of work.

…

32        The February 28 article was shown to Ms. Lackie. She was referred to the paragraph about the PSAC stepping in. She stated the following:

• the GSU had concerns in February and in April;
• she received calls and emails from the Miramichi staff and spoke to them directly;
• she attributed some problems to the shortened pace of the learning program for the staff in Miramichi from 18 to 12 months; and
• she brought these concerns to the employer and stated that she had had direct discussions in February and March of 2016 with Brigitte Fortin, the assistant deputy minister (ADM) of PSPC at the time.

33        The PSAC also entered into evidence a copy of a second Ottawa Citizen article, dated April 18, 2016, also authored by Ms. May and entitled, “Despite complaints, government intent on second rollout of new pay system” (“the April 18 article”), the relevant portions of which are as follows:

…

An Ottawa bureaucrat, who didn’t want his name published, has been caught twice in pay delays. Last summer, his term contract was renewed and he went 10 weeks without pay. With a young family and a new home, he took out a loan to tide him over.

Today, he hasn’t been paid for four weeks and “counting.” He is back at work from a five-week parental leave he asked for months ago that has yet to be formally processed. He is surrounded by colleagues facing similar fates because they went on leave, got a promotion or a contract renewed, including one who “hasn’t been paid a thing, nothing” since January.

It’s unclear how many people are not getting paid, as opposed to those who are getting paid but not all they are owed.

To complicate matters, the government and unions are completely at odds over the extent, scope and even the nature of the problems.

The department says everything is in hand. Phoenix is working and proceeding as expected for such a massive and complex project. Unions say the pay centre is swamped, Phoenix isn’t working and employees are so stressed they won’t be able to cope when thousands of new files are dumped on them.

“There is always risk when implementing a big system but we really believe Phoenix is the solution,” said Brigitte Fortin, assistant deputy minister of accounting, banking and compensation at Public Services and Procurement.

“It brings automation, reduces pressure on the centre in Miramichi and operates as planned and (operates) well.”

Chris Aylward, vice-president of the Public Service Alliance of Canada, vehemently disagrees.

“They are full of s—,” said Aylward. “They have put so much pressure on the pay centre and Phoenix doesn’t work, plain and simple. Not only that, employees are told to say the problems are not because of problems with Phoenix.”

The PSAC is in the firing line of angry employees not getting paid and the 550 compensation advisers. Aylward met with them in Miramichi on Friday and got an earful. They claimed the centre has a backlog of 115,000 cases yet to be assigned.

…

34        Ms. Lackie testified that by the time the April 18 article came out, the compensation advisors in Miramichi were feeling the stress of not being able to deliver. She identified the stress as being due to carrying out a complicated job without appropriate training and being put on the job before being ready. She said that the stress manifested itself in employees crying at work, at their desks, and on their way to work.

35        Mr. Aylward was brought to the December 4 minutes, in which Ms. Di Paola’s representative reported to the meeting that the rollout should be delayed by two months for additional due diligence. He was asked about it in the context of the December 4 meeting. He stated that there was supposed to have been a dry run, which was to have taken place in August of 2015 but had been delayed to October of 2015 and then later to February of 2016.

36        Mr. Aylward was brought to another paragraph in the December 4 minutes, which referred to his request for a “list of departments by rollout”. He said that before the new system would be rolled out, departments were to go through a data-cleansing process, that some departments were better than others, and that the PSAC was concerned about the process. He said that the PSAC advised its component presidents to be on top of that process.

37        Mr. Aylward was brought to a further paragraph in the December 4 minutes, which referred to retraining concerns in certain departments. He said that home departments would input tombstone data, which meant that the persons doing it would have to be trained.

38        Mr. Aylward was brought to the February 28 article and was asked about the comment in it attributed to the PSAC about a slow pace. He said that the process of transformation happened in phases and waves. He stated that the PSAC believed that the transformation was happening faster than it thought was wise, and he said that it told PSPC to slow down. He said that Phoenix was originally scheduled to go live in October of 2015; the PSAC had said that it was not ready. He said that at a demonstration, it saw some things that raised serious concerns, which he identified had to do with pay anomalies due to different collective agreements having different parameters. He said that the PSAC suggested to the employer not to proceed with the initial rollout.

39        Mr. Aylward was brought to the April 18 article and was asked about the reference to the PSAC’s concerns. He stated that because of them, if the employer had gone ahead in April of 2016, it would have compounded the issues that the PSAC had already heard of after the initial rollout.

40        Mr. Aylward stated that he recalled that Ms. May had called him and that he recalled visiting the pay centre. He said that what PSPC representatives and Ms. Di Paola told him did not match what employees in Miramichi told him. He stated that at a town hall meeting with those employees, he was told that thousands if not tens of thousands of cases were backlogged at that time.

41        In his testimony, Mr. Aylward stated, “I recall distinctly the employees telling me 115 000 backlog,” and, “I recall a meeting with Ms. Di Paola on April 7, 2016, and she said that they were not getting any calls or complaints; I told her I would send her the ones I was getting.” He said, “Anytime I would get an email I would forward it; I would go back to the employee and ask how Phoenix affected their pay, their personal record identifier (“PRI”), and their consent to share this information with PSPC.” He stated that he recalled specifically asking Ms. Di Paola at the April 7, 2016, meeting to delay the second rollout and that her response had been that the second rollout would fix the problems identified in the first rollout.

42        Ms. Di Paola testified that she received a text from Mr. Aylward on April 5, 2016, and that they met on April 7, 2016. She said that at that meeting, Mr. Aylward told her that “Phoenix is broken; that he had received thousands of complaints that people were not getting paid.” She said that they met for two hours and that he could not pinpoint the specifics of the problems but that he would forward complaints to her. He stated that he “would fill her inbox”.

43        Entered into evidence was an email chain, the most recent email in it from Ginette Jalbert to Mr. Aylward and copied to Dominic Lavoie at 1:40 p.m. on April 12, 2016. Ms. Jalbert’s and Mr. Lavoie’s positions were not made known to me.

44        The emails in the chain speak of a number of pay issues arising out of the rollout of the new pay system. The first email is dated February 10, 2016, at 10:14 p.m., and was sent by a bargaining agent representative, whom I will identify as “Mr. A”, to Michelle Laframboise. The other emails include one on March 22, 2016, at 5:34 p.m., also from Mr. A to Ms. Laframboise, her reply to him the next day at 6:42 p.m., and more on April 12, 2016, which were all eventually forwarded to Mr. Aylward. The relevant portions of these emails read as follows:

[Mr. A to Ms. Laframboise, February 10, 2016, at 10:14 p.m.:]

I have been meaning to contact you for a few weeks now, but it has not been possible to do so during the day; hence my late message. Perhaps you can look at it tomorrow, at your convenience.

The delays in payments issue is getting worse, since our last meeting with Danielle Lacasse (acting ADM MSC) in October last year, and the frustration of our members, who are at the receiving end, has been increasing. We need to find solutions that deliver results.

A), MT Promotion: We have a significant number of MTs who received their promotions during June or July last year. To-date, most of them have not received their pay according to their level. I have a hard time keeping up with the complaints. They are only reaching out to me after they have exhausted all regular management channels. There is a significant difference between MT1 and MT2 pay ($44,324 start to $51,150 start), because MT2 is the working level, while MT1 is the training level… .

…

B), Students:

…

I have been approached by several managers and students who (students) did not get their salary in time. Upon inquiries, it seems no message has been given to managers that they should request the student’s first pay by way of emergency check right from the start, so that they do not miss the first pay, while paper work catch up [sic]. I thought this was our understanding HR would take this action, and it seems it has not been taken. Many students missed their first pay, and were given an assurance to be paid today (Wednesday) and did not get their pay. On top of it (which seems like a defensive mechanism, and understandably works like adding insult to injury), they received the following message today: “..When an employee has not received its regular pay within 21 days from first day of work, he is asked to follow, with the help of his manager, the steps of the routing process – Payroll Services Centre which can be accessed at the following link...”

Our members are scratching their heads, who is responsible to pay me on time? Is it not my employer’s responsibility?

…

C), Other Pay Issues:

There are many other issues which indicate that the system is not working as it should. I can only share with you a sample of comments, to give you a sense of the problems and the impact on employees:

A Sample of Employees’ comments (random order):

· The implications of this go beyond waiting half a year to get the pay they are due. If the back pay is issued now this year, it will be reflected on their 2016 tax returns at a higher tax bracket rather than for 2015, when reasonably it should have been issued last year.

…

• Based on my experiences today, yesterday and over the past years it is safe to say something (with Phoenix) will go wrong.

…

•  I am writing to you to inform you that as of this pay check I have not received my annual increment per my collective agreement (CA). My increment day is January 16th of each year, and this previous pay check has not accounted for the increment I am entitled to under the CA.
• Students were hoping to receive their pay for the last 6 weeks today, but didn’t get paid today. So they have to wait another 2 weeks. This is really unacceptable. They have done what they can do. It is the responsibility of the employer to get things resolved and not the students to keep calling.
• I did not keep a log of how often I called the Pay Centre (it was a lot, with mostly busy signals). Plus, there was the annoyance of having to become a “vendor” in order to get an emergency salary advancement (ESA), which likely delayed the ESA. I have not seen anything yet as far as a supplementary deposit to make up the difference between the ESA and the regular pay cheque.

…

I wanted to share with you some comments to provide you as accurate as possible the feelings of employees who are at the receiving end of the problems that the pay system has on employees. I believe it is my responsibility to represent our members, and to seek management’s cooperation to address these workplace issues as expeditiously as possible… .

…

[Mr. A to Ms. Laframboise, March 22, 2016, at 5:35 p.m.:]

…

The payments situation has not improved; in fact, I am hearing from our members that it has taken a turn for worse. At our biweekly teleconference among stewards, it was raised again and I am under considerable pressure to escalate the issue.

Most managers have not heard that they can ask for emergency cheques for students. There must be a breakdown somewhere. There are too many errors and mistakes. The system is simply not designed to do the job it is supposed to do. Management is not taking these issues seriously. These are some of the comments I hear. I am copying below another message as a sample of concerns shared with me by our members:

QUOTE: We are continuing to experience severe pay issues with the pay centre. I took LWIA this year. I had my paperwork into the pay centre in December well in advance of my leave period from mid Feb through to the 21st March. I called before I went on leave and they assured me all was in place. They should have reduced my pay by 9.6% with the pay on Mar 9th. They did not. I am now back at work and checked my pay stub for tomorrow Mar 23rd and they still have not reduced the pay.

I called the pay centre...first 5 times I called they hung up on me. On 6th try I was put on hold for 15 minutes then spoke to Patrick. I explain the issue and he said...You did everything right! Paperwork was received in plenty of time...but they made a mistake. And have no way of correcting it. He suggested they may just take 5 weeks of pay in a lump sum … leaving me with NO PAY for 5-6 weeks!.

I have a mortgage to pay, a car payment and a 10yr old child to support. I can not go that long without pay. I am a one income household and need to be paid properly and on time. These pay issues need to be dealt with NOW!

UNQUOTE

I fully understand that these problems are not your creations. However, it is our management who have to solve them. That is why I proposed the following steps in my message of February 10. I am my colleagues are trying to work with management to address these problems which, in the words of our members, have reached an un acceptable level.

…

[Ms. Laframboise to Mr. A, March 23, 2016, at 18:42 p.m.:]

…

I hear your frustration and I certainly understand that you and other union representatives are in a difficult situation. I agree that the situation has not improved, and in fact, with the conversion to Phoenix, a new series of problems have cropped up. While I understand that all of the problems are being lumped in as “pay issues”, in fact the problems that we’re dealing with can be divided into different categories and are handled by different groups and in different ways.

I’ve included the Phoenix update that was provided to EMC this morning (attached) so that you can get a sense of what we’re doing and where the critical areas are at this point, and can also provide the following stats:

• We’ve received approximately 1300 questions (sources: Info Phoenix generic email, Helpdesk 1800 number, Pay Liaison).
• The top 5 issues are:
  • Technical Issues with the conversion (pay stub not showing, personal information, voluntary deductions not appearing in pay stub, unable to find T4, etc.)
  • Problems with EDP (employee’s submission not converting into manager’s list, EDP not paid, not all the requests submitted were paid, etc.)
  • “How-to” in Phoenix (enter a schedule, approve time, submit OT, students/casuals/as and when/part-time/compressed)
  • Incorrect pay amount on pay stub
  • Confusion between submission of paid leave vs LWOP

At this point in time, we are triaging the issues by addressing cases where employees have not been paid at all as critical – ensuring Emergency Salary Advances are processed for new employees and priority payments are made for existing employees who, for whatever reason, have not been paid.

…

[Emphasis in the original]

[Sic throughout]

45        When the emails in the April 12 chain were shown to Mr. Aylward, he confirmed that he had received them and that they were examples of those he was receiving at the time.

46        The second Phoenix rollout or go live occurred on April 21, 2016. After that, more and more compensation problems surfaced.

47        Mr. Aylward identified an undated memo that was from “Bargaining Agents Collectively” and sent to PSPC with the reference line, “Pheonix [sic]Pay System – List of Issues Arising during the Implementation”. He stated that it evolved after a meeting on April 25, 2016, which included the presidents of the PSAC and the Professional Institute of the Public Service of Canada, among others. The purpose of the meeting was to express concerns and issues to the Deputy Minister. Mr. Aylward said that he was concerned that the Deputy Minister was not receiving the same information as the bargaining agents were. Mr. Aylward said that the AADM was telling the bargaining agents that all would be fine, which was the message the employer was expressing in the media. The relevant portions of the undated memo stated as follows:

Following the meeting on Monday April 25, 2016, between the bargaining agents representing employees in the Federal Public Service, Public Services and Procurement Canada and the Treasury Board Secretariat, please see below a list of concerns arising from the implementation of Phoenix. This list does not contain the issues related to union dues (deductions and remittances).

• Allowances that are found in different collective agreements are not coded in the system and as such employees are not being appropriately paid.
• Shift premium is not being paid – not programmed in the system.
• Overtime or compensatory time is not being paid.
• Acting pay not being paid.
• Employees on leave without pay (maternity, parental, apprentice leave) are not receiving their top-up.
• Employees returning from leave without pay (maternity, parental, apprentice leave) are not being paid for 8-10 weeks.
• Employees with different types of schedule (ex. Ship Captains who work 42 or 46.6 hours a week) are not getting the proper amount of hours entered in the system and are being under paid.

…

• Annual pay increments are not being paid.
• Retroactive pay adjustments for promotions taking months to process.

…

• Leave with income averaging – pay not being reduced.

…

• Employees not receiving stand-by pay.

…

• The Phoenix system does not contain up-to-date personal information.

…

• As a result of not being paid properly, employees are not being taxed properly.
• Finally employees simply not being paid.

[Emphasis in the original]

48        On June 14, 2016, Mr. Aylward wrote to Judy Foote, the Minister of PSPC, to complain about the matter and to provide some recommendations that the PSAC believed could help.

49        In examination-in-chief, Mr. Aylward was asked why the PSAC filed its complaint on June 28, 2016. His reply was that when the PSAC first started to receive pay complaints from its members (in March and April), it tried to work things out. He felt that it had established an approach to the problem with the Deputy Minister, but it realized by June that the system simply would not be fixed and that problems would endure for a long time. He said that the PSAC decided that it needed to do something for its members, so it filed a complaint. He stated that the trigger occurred during a June 17, 2016, conference call in which the Minister failed to follow up.

50        In paragraph 7 of an affidavit dated July 22, 2016, in Federal Court application no. T-1021-16, which was brought by several bargaining agents against the TB, Mr. Aylward stated, “Beginning shortly after the launch in February 2016, I began to receive reports of significant problems with the Phoenix pay administration system from public service employees.” He was brought to that paragraph in cross-examination and was asked about the type of problems that were brought to his attention. He said that on the first payday after the launch, people were not getting paid. He said that he received his information by telephone and email.

51        Entered into evidence on consent were three grievances filed by different employees about problems with their pay after the launch of Phoenix. The employees worked in Montreal, Quebec, at Immigration, Refugees and Citizenship Canada. While they were not all part of the same bargaining unit, their bargaining units were all represented by the Canada Employment and Immigration Union (CEIU), a PSAC component. All three grievances were signed off by a bargaining agent representative and stated, “Approval for presentation of grievance relating to a collective agreement or an arbitral award, and agreement to represent employee are hereby given”. The dates on which each grievance was signed by each grievor and the bargaining agent representatives (signifying their agreement to provide representation) and the date of receipt of each grievance by the employer are as follows:

	Signed by the grievor	Signed by a bargaining agent representative	Received by the employer
Grievance no. 1	March 8, 2016	March 8, 2016	March 8, 2016
Grievance no. 2	March 11, 2016	March 11, 2016	March 14, 2016
Grievance no. 3	March 23, 2016	March 23, 2016	March 23, 2016

52        The grievance that the employer received on March 8, 2016, states that the dates on which each act, omission, or other matter giving rise to the grievance occurred were February 10, 24, and 25, 2016.

53        The grievance that the employer received on March 14, 2016, states that the dates on which each act, omission, or other matter giving rise to the grievance occurred were December 16 and 30, 2015, and January 13 and 27, February 10 and 24, and March 9, 2016.

54        Finally, the grievance it received on March 23, 2016, states that the date on which each act, omission, or other matter giving rise to the grievance occurred was March 9, 2016.

55        Mr. Aylward was brought to the three grievances and was asked if he was aware of them. He replied that he was not because they were filed by local PSAC representatives.

56        Mr. Aylward testified that between December of 2015 and February of 2016, before the first rollout, the employer and PSPC told the PSAC that everything would be fine; only after the February rollout did the PSAC realize that things were not right. It was even more concerned after the second rollout, at the end of April of 2016.

57        Although in his examination-in-chief, Mr. Aylward stated that the Phoenix system was broken, when he was pressed in cross-examination, he admitted that he had no education in computer software design, stating that he was just a regular (computer) user. When it was put to him in cross-examination that he did not know what caused the problem with Phoenix, he admitted as much but stated that like when his car will not start, he knows it is broken.

58        In accordance with s. 105 of the Act, on the following dates, the TB gave notice to bargain by letter to the PSAC for the following groups:

• on February 24, 2014, for PA and Technical Services (SV);
• on February 28, 2014, for Education and Library Science (EB):
• on April 4, 2014, for Operational Services (SV); and
• on April 16, 2014, for Border Services (FB).

59        In cross-examination, Mr. Orfald was asked about the three grievances, which he stated he had not seen. When he was asked how many pay grievances had been filed, he could not provide a number; he said that the PSAC’s representation section receives about 160 grievance referrals per month. When he was asked how many complaints he has heard about with respect to pay, he said he would guess at hundreds if not thousands. When he was asked when these complaints arrived, he stated after the first rollout of Phoenix in February or March of 2016.

A. Employee pay problems after the switch to Phoenix

60        In cross-examination, Mr. Orfald was asked to estimate the number of grievances PSAC members had filed about pay issues. He stated that he could not answer that as the PSAC receives about 160 grievance referrals per month. When he was asked how many complaints about pay related to Phoenix the PSAC had received to the date of his testimony, he said hundreds or thousands. When he was asked when they began to arrive at the PSAC, he said it was after the first rollout in February or March of 2016.

61        In his evidence-in-chief, Mr. Aylward stated that the problems with the Phoenix pay system were ongoing. He stated that he has travelled across the country since the rollout and that complaints about Phoenix are the number one issue that has been brought to his attention. He stated that even at meetings that are not about Phoenix, he still hears about it; people are not being paid.

62        I was also provided with a significant number of specifics about pay problems after this complaint was filed and about steps that the employer either has taken or stated it would take to remedy the Phoenix pay problems. Although much of that evidence was hearsay, there is no dispute that as of the date of the hearing, there were thousands if not tens of thousands of problems with employees’ pay that have in some way emanated out of the TPA project, either with the consolidation of the compensation employees in Miramichi, the technological component (Phoenix), or a combination of them.

63        The evidence disclosed that the TB has established a claims process to address issues arising from the compensation problems that have arisen with the TPA project. A claims office was established during the week of the hearing.

64        Many media reports were entered into evidence about problems that had arisen from the Phoenix implementation.

III. Summary of the arguments

A. For the complainant

65        The human suffering is real. There is evidence of public service workers who are distraught; they are either not being paid at all or at not the correct amount. Nothing was normal about the stories conveyed through the evidence of the employees or about the problems they are experiencing.

1. The employer’s timeliness objection

66        The onus is on the party advancing the objection to prove that the complaint is not timely under s. 190(2) of the Act.

67        The complainant could not have known the gravity of the situation until after April 21, 2016.

68        Phoenix is not just software; it is people. It is part of the TPA project that was based on the Standing Committee’s report, which set out that the pay system that the employer had been using was antiquated and needed to be changed.

69        The new pay system, which has become known as Phoenix, was a long-standing and multi-phase project that included moving the personnel who would administer it to Miramichi.

70        There were two phases to the implementation, the first on February 24, 2016, and the second on April 21, 2016. Before April 21, 2016, members had made complaints, which had been escalated to PSPC management after an April 7 meeting with Ms. Di Paola. The most egregious problems were dealt with case by case. PSPC downplayed the problem, alleging that the system was working; what the complainant had brought to it were glitches in the system, and all would be fine. That is seen in countless media reports on the issue.

2. The employer’s wrong forum objection

71        Section 191(2) of the Act uses the term “may”; the Board has discretion to refuse to determine a complaint. It is permissive, not mandatory. This is a highly technical argument.

72        Effective labour management relations are important and are in the public’s interest. These tenets are set out in the preamble to the Act. Is it in the best interests to hear thousands of grievances or a statutory freeze complaint? Is it a more efficient use of resources to wait for more grievances to make their way through the system? In this respect, the complainant referred me to Gignac v. Fradette,2009 PSLRB 18.

73        The complainant’s position is that this preliminary forum argument ought to be dismissed.

3. The merits of the complaint

74        Largely, the facts are not in dispute. Notices to bargain were sent between February 24 and April 24, 2014. While the parties were in bargaining, the employer was engaged in the transformation of the pay system in a multi-year process. Two rollouts were planned, one involving 34 departments and groups, and the second involving a further 67 departments and groups. Approximately 300 000 employees receive pay through the respondent’s payroll system; of them, approximately 135 000 are represented by the complainant.

75        The complainant never agreed that the employees it represents should not be paid, should be paid late, or should be paid inaccurately.

76        PSPC underestimated the steep learning curve that had to be surmounted to get departments and personnel up to speed with the new Phoenix system. No mandatory training took place outside that of the compensation advisors in Miramichi.

77        PSPC’s messaging changed over time as the extent of the problem became known. The evidence disclosed that it could not guarantee delivering pay on time, accurately, or at all.

78        The following two questions are to be asked:

1. Is pay a fundamental term and condition of employment?
2. If so, did the employer alter that term and condition of employment during bargaining by not paying employees?

4. Is pay a fundamental term and condition of employment?

79        Section 107 of the Act is the basis for the complaint. The TB’s Directive on Terms and Conditions of Employment (“the Directive”) provides that a person appointed to the core public administration is entitled to be paid biweekly for services rendered either at the appropriate rate of pay in the relevant collective agreement or at the rate approved by the TB for the group and level of the person’s classification.

80        All PSAC and TB collective agreements have pay administration articles.

81        Given the Directive and the pay administration article in all PSAC and TB collective agreements, pay is a fundamental term and condition of employment.

5. Did the employer alter a fundamental term and condition of employment during bargaining? 

82        The Queen in Right of Canada as represented by the Treasury Board v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.), sets out the purpose of the statutory freeze provision of the Act. The jurisprudence in this area was expanded in Spar Aerospace Products Limited v. Spar Professional and Allied Technical Employees Association, [1978] OLRB Rep. September 859, Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46, Public Service Alliance of Canada v. BHP Billiton Diamonds Inc., 2006 CIRB 353, Canadian Association of Professional Employees v. Library of Parliament, 2013 PSLRB 18, Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2016 PSLREB 19, Canadian Union of Public Employees, Local 3010 v. Children’s Aid Society of Cape Breton, 2009 NSLRB 11, and United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45.

83        Pay is essential. At no time did the PSAC agree that it was to be interrupted.

84        The bargaining units as a whole have been impacted.

85        Evidence was adduced as to stress and the leave taken by pay advisors, including sick leave. Evidence was led on the impact of the loss of pay on individual members.

86        As a result, the complainant requests the following order:

1. declaring that s. 107 of the Act has been violated;
2. granting compensation for all PSAC bargaining unit members who have suffered losses;
3. requiring a commitment from the employer that employees will not be negatively impacted;
4. requiring that the order be posted for 120 days; and
5. requiring the employer to pay the bargaining unit members on time and accurately.

B. For the respondent

87        This matter boils down to the following key facts:

• before 2009, the employer’s pay system was not working and was experiencing problems;
• in 2009, the employer decided to change its pay system;
• Phoenix was designed to pay employees the same way as the old system did;
• between February and April of 2014, notice to bargain was given;
• the employer had decided to change the pay system before notice to bargain was given;
• on February 24, 2016, Phoenix was deployed for a significant number of employees;
• on March 9, 2016, the first payments were issued under Phoenix;
• on March 9, 2016, the employer began to experience problems with Phoenix, namely, with respect to the timeliness and accuracy of the payments to some employees;
• shortly after March 9, 2016, the complainant began to receive complaints from its members about their pay, related to Phoenix;
• in March of 2016, the complainant began to hear from its members that they would file grievances about the pay problems;
• problems associated with the Phoenix pay system resulted in untimely or incorrect data being entered into the system; and
• on June 28, 2016, this complaint was filed.

1. The complaint is not timely

88        A complaint filed under s. 190 of the Act must be filed within 90 days, or the Board has no jurisdiction. The analysis with respect to an objection to timeliness is well settled. Two questions must be asked, being what is the essence of the complaint and when did the complainant know, or when ought it to have known, about the facts giving rise to the complaint.

89        In this respect, the respondent referred me to Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, Public Service Alliance of Canada v. Treasury Board (Canada School of Public Service), 2013 PSLRB 118, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-TCA Canada), Local 2182 v. Treasury Board (Department of Fisheries and Oceans), 2013 PSLRB 42, and Esam v. Public Service Alliance of Canada (Union of National Employees), 2014 PSLRB 90.

90        There are two sub-issues relating to the timeliness of the complaint. The first is its essence, which in this case is the respondent’s failure to make timely and accurate pay payments to employees who are members of the bargaining units that the complainant represents. It did not allege that the respondent repudiated the collective agreement or suggest that there is an effect on bargaining.

91        The second issue is when the complainant first knew of the issue, not when it became a big problem or when the implementation took place. The time to file a complaint begins when the complainant first becomes aware or should have become aware of the circumstances giving rise to it. Subsequent events cannot be used to extend the deadline for filing a complaint. In this respect, the respondent referred me to Coulter v. Public Service Alliance of Canada, 2014 PSLRB 53, Crête v. Ouellet, 2013 PSLRB 96, Lampron v. Professional Institute of the Public Service of Canada, 2011 PSLRB 29, Éthier v. Correctional Service of Canada, 2010 PSLRB 7, and Larocque v. Professional Institute of the Public Service of Canada, 2010 PSLRB 77.

92        CAW-TCA Canada, Éthier, and Lampron also stand for the proposition that no minimum threshold establishes the degree of knowledge that a complainant must have before filing a complaint. Once the complainant has knowledge of the facts that form the basis of the complaint, the complainant must file it within 90 days.

93        The threshold for filing this complaint, which was 90 days before it was filed, was March 31, 2016.

94        The complainant first became aware that there were delays and discrepancies in the payment of pay to its members on or about March 9, 2016. All three of its witnesses conceded that they were well aware in February or March of 2016 that some of its members had complained about not being provided timely and accurate pay.

95        In an email dated March 23, 2016, Mr. Aylward was advised of a series of problems with the payment of wages. In an affidavit, he said that shortly after the launch of Phoenix, he began to receive reports from public service employees of significant problems with the Phoenix pay system, and he said that he was aware in March of 2016 that PSAC members were contemplating filing grievances. On March 11 and 23, 2016, the PSAC filed two individual grievances relating to the Phoenix pay system problems on behalf of its members. All these events occurred before the March 31, 2016, threshold date for knowing of the facts giving rise to the complaint.

96        Coulter also stands for the proposition that the complainant cannot rely on its inaction to extend the 90-day period. Therefore, the fact that it tried to resolve matters through other means or delayed raising its concerns until April of 2016 does not negate the fact that it knew about the issues before April of 2016.

97        As the complainant knew or ought to have known about the circumstances giving rise to the complaint on or about March 9, 2016, and did not file its complaint until June 28, 2016, 112 days later, the complaint is untimely.

2. The wrong forum

98        The purpose of s. 107 of the Act is to ensure that bargaining agents are given an opportunity to enter into negotiations and bargain from a fixed point. In support of that statement, the employer referred me to Canadian Air Traffic Control Association and Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2016 PSLREB 26.

99        Labour boards generally decline to hear complaints alleging that a statutory freeze was violated when the resolution of the dispute is more appropriately done through the grievance process. In this respect, the respondent referred me to Calgary Board of Education Staff Association v. Calgary School District No. 19, [2006] A.L.R.B.D. No. 42 (QL), Canadian Union of Public Employees v. Algoma District School Board, [2014] O.L.R.D. No. 3379 (QL), and Canadian Union of Postal Workers v. Canada Post Corporation, 2016 CIRB 827.

100        Under s. 191(2) of the Act, the Board may refuse to determine a complaint made under s. 190(1) if in its opinion, the matter could be referred to adjudication under Part 2 of the Act.

101        The respondent submitted that the untimely or incorrect payments made to employees (members of the complainant) are not a matter for an unfair labour practice complaint under s. 190(1) of the Act but are more properly the subject matter of individual, group, or policy grievances filed under Part 2 of the Act. There is no evidence let alone any allegation that collective bargaining was being undermined. Also, the parties’ conduct does not suggest that the collective agreement or the collective agreement process is being repudiated.

102        Individual grievances are being filed, and the relief being requested is more appropriately dealt with in a grievance proceeding. Specifically, the complainant’s request that its members be compensated for financial and psychological damages resulting from inaccurate or untimely pay can be assessed only with the benefit of direct evidence from impacted individuals. There is no one-size-fits-all remedy that can be applied to all affected employees. In addition, the complainant has failed to file any evidence about individual damages, let alone the identities of affected employees.

103        Allowing the complaint to proceed in the circumstances of this case would lead to an absurd result. It would be absurd to interpret s. 107 of the Act to allow a complainant to bypass the grievance process and challenge any application by the employer of the collective agreement during the freeze period by way of an unfair labour practice complaint. In this respect, the respondent referred me to Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.

3. The merits of the complaint

104        The disruptions to employee pay that are the basis of this complaint did not result from a change to any terms and conditions of employment but rather from honest administrative errors in processing those terms and conditions. As set out in United Food and Commercial Workers, Local 503, and Professional Institute of the Public Service of Canada v. Treasury Board, PSSRB File No. 148-02-185 (19910125),[1991] C.P.S.S.R.B. No. 23 (QL), the essential question in applying any freeze provision, including s. 107 of the Act,is whether the employer unilaterally changed its employees’ conditions of employment during the period of prohibition. Specifically, the complainant had the burden of demonstrating the following:

1. that a condition of employment existed on the day before its notice to bargain was delivered;
2. that a condition of employment was changed without its consent; and
3. that the change was made during the freeze period.

105        Paying compensation is the condition of employment, not the pay system that administers the payment. In assessing whether a change to a condition of employment has occurred within the meaning of s. 107 of the Act, the complainant cannot simply show that the employer has modified how it runs its business. It must also establish that the modification is inconsistent with the employer’s normal management practice by demonstrating that the decision was contrary to (i) past management practices or (ii) the decision that a reasonable employer would have made in the same circumstances. A change that would have been handled the same way had there been no attempt to form a union or no process to renew a collective agreement should not be considered a change to a condition of employment such that s. 107would apply.

106        There has been no change to the employer’s normal management practice. In 2008, a Parliamentary committee highlighted issues with the reliability of the former pay system. The implementation of Phoenix was intended to address reliability. Given the size and complexity of the federal government pay system, some issues affecting the pay of some employees are inevitable. That was an issue well before the implementation of Phoenix. Therefore, it cannot be demonstrated that the current situation is a change in the terms and conditions of employment since the condition of less-than-perfect pay for employees existed before the freeze period came into effect.

107        If the complainant’s approach were accepted, then each time even one employee is not paid or is not paid correctly during the freeze period would be a violation of terms and conditions during that period.

108        An honest administrative error in applying a term and condition of employment does not amount to a change of that term for the purposes of the statutory freeze provisions. This is not a case of a change or of an employer refusing to abide by a term and condition of employment. In this case, an administrative error occurred, in good faith.

C. The complainant’s reply

109        Grievances that were filed do not impute knowledge on the complainant. Its structure is an alliance of 17 unions. It is a complex organization. A bargaining agent representative who signs a grievance in support of a member on behalf of the bargaining agent does not impute knowledge of the facts upon which the complaint is based.

110        Boshra can be distinguished. The question is when did the complainant recognize that there was a problem that disclosed a pattern of untimely or inaccurate payments of pay to employees who were its members.

111        While the previous pay system might have had problems, there is no evidence that they were not addressed. The issue is the magnitude of the Phoenix-related problems.

112        It is difficult to determine which grievances were related to Phoenix. Grievances are not coded at a local or regional level, only at a national level.

113        There is no evidence that the grievance process is any more expeditious.

114        With respect to remedy, the Board can rule on whether the Act was breached and deal with remedy later.

115        The complainant sounded the alarm about the problems with the Phoenix pay system; the employer should have listened and should have considered more training. The problems with Phoenix are more than an administrative error.

D. The respondent’s reply

116        There was no request to bifurcate the hearing. The complainant had the burden to lead evidence with respect to damages and did not.

IV. Reasons

117        From the start, I want to make things clear about this case. It is not about whether employees should be paid for the work that they do. It is also not about the many different problems that individuals might have encountered that caused economic or personal upheaval and hardship in their lives due to problems with the TPA project and the Phoenix pay system. It is about whether the employer breached s. 107 of the Act.

118        Section 107 of the Act states as follows:

107  Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

1. if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or
2. if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

119        The period after notice to bargain has been given and before a new collective agreement has been achieved is referred to, colloquially, as the “freeze period”, and s. 107 of the Act is often referred to as the “freeze provision”.

120        The PSAC gave the employer notices to bargain for a number of the bargaining units it represents or its components respectively on February 24 and 28 and April 4 and 16, 2014.

A. The timeliness objection

121        The respondent submitted that the complaint is untimely.

122        Section 190(1)(c) of the Act states as follows:

190 (1) The Board must examine and inquire into any complaint made to it that

…

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

123        Section 190(2) of the Act states as follows:

190 (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

124        The 90-day period stipulated in subsection 190(2) is statutory, and cannot be extended as there is no authority under the Act or the Board’s regulations to do so (Coulter at para. 46).

125        The test to determine if a complaint under s. 190 of the Act is timely is summed up accurately in CAW-TCA Canada, in which the Board states as follows at paragraph 35:

35 … The Federal Court of Appeal, at paragraph 40 of Boshra, clearly identified the process for determining when the clock begins to run for complaints made under section 190 of the Act. In its words, when assessing whether a complaint was filed within the 90-day time limit, the Board “... had to define ‘the complaint’, and to decide when [the complainant] knew or ought to have known of the action or circumstances that gave rise to it.”

126        The complaint was filed on June 28, 2016. To be within the time frames set out in the Act, the circumstances that gave rise to it must have come to the complainant’s attention or, in the Board’s opinion, ought to have come to its attention no earlier than the 89 days preceding June 28, 2016 (June 28, 2016, being the 90^th day). Ninety days before June 28, 2016, was March 31, 2016. If the complainant knew of the circumstances that gave rise to the complaint or in the Board’s opinion ought to have known of them before March 31, 2016, more than 90 days would have elapsed, and the complaint would be untimely.

127        Paragraph 47 of Lampron states as follows:

47      As stated in Éthier, at paragraph 21, “[t]o the extent that there is a violation of the PSLRA, there is no minimum or maximum standard for the degree of knowledge that a complainant must have before filing his or her complaint.” In this case, knowledge of the respondent’s decision to expel the complainant permanently, which the complainant possessed on January 28, 2009, triggered the alleged violation of paragraph 188(d) of the PSLRA and the 90-day time limit. Therefore, I am satisfied that the complainant did not file his complaint within the time limit set out in subsection 190(2).

128        Paragraphs 16 and 17 of Larocque state as follows:

16      In general, the circumstances giving rise to a complaint may not be extended by invoking circumstances outside the context of the initial refusal to proceed with the grievance. In this case, the 90-day time limit to make a complaint with the Board began on the date of that refusal, specifically October 8, 2009, and not November 16, 2009, the date invoked by the complainant.

17      The essence of the complaint is the Institute’s refusal to support the complainant’s grievance. Accordingly, the complainant’s knowledge of the Institute’s refusal to support his grievance was the trigger for a violation of section 190 of the PSLRA and the 90-day time limit for making the complaint. Therefore, the period began on the date on which the complainant became aware that the Institute would not support him.

129        To determine if the complaint is timely, I must first determine its essence.

130        Complaints with the Board and its predecessors are made on a Form 16 as promulgated under s. 57 of the Federal Public Sector Labour Relations Regulations (SOR/2005-79). Box 5 of that form asks the complainant to set out the date on which it knew of the act, omission, or other matter giving rise to the complaint. In this complaint, the date stated was June 14, 2016.

131        In his evidence before me, Mr. Aylward was asked point-blank why the PSAC filed its complaint on June 28, 2016, to which he replied that it realized then that the pay system would not be fixed for a long time, so it decided to do something for its members by filing the complaint. He stated that the trigger occurred during a June 17, 2016, conference call in which the Minister failed to follow up.

132        That evidence of Mr. Aylward is not congruent with the statement in Box 5 of Form 16, which stated that the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint was June 14, 2016. Nor is it the basis of the complaint, which is an alleged breach of s. 107 of the Act, as set out in paragraphs 4 through 7 and 10 of the Addendum as follows:

…

4. The Complainant submits that the Respondent has violated section 107 of the Public Service Labour Relations Act by changing terms and condition [sic] of employment for employees during the statutory freeze period.

5. This change is also contrary to the respective collective agreements, the Treasury Board Directive on Terms and Conditions of Employment and sections 7 and 11.1 of the Financial Administration Act.

6. Specifically, the Respondent has introduced the Phoenix pay system – an automated payroll system that has resulted in major systemic pay administration problems for PSAC members.

7. In particular, since the launch of Phoenix in February 2016, the Respondent has paid PSAC members inconsistently inaccurately and sometimes not at all. Some members, including those with disabilities and on maternity leave, have faced significant financial hardship and disruption to their daily lives. This includes but is not limited to an inability to pay rent, mortgage and other regular household bills.

…

10. The Complainant submits that compensation is at the heart of the employer-employee relationship. It is arguably the most fundamental term and condition of employment.

133        For the reasons that follow, the evidence before me disclosed that before March 31, 2016, the PSAC knew and ought to have known of the employees’ compensation-related problems (the employees belong to bargaining units represented by PSAC components). As such, the complaint is out of time.

B. The February 28 article

134        The February 28 article reported as follows on the first part of the rollout of the Phoenix pay system, which occurred on February 21, 2016:

…

The government has the biggest and most convoluted pay system in Canada with more than 80,000 rules and regulations built into the new system that compensation advisers had to master.

Until Miramichi, departments managed their own pay with about 2,500 in-house compensation advisers. There are now 550 pay advisers in Miramichi and 790 remaining in departments.

The pay transformation plan was divided into two major projects. The first was to consolidate all pay services for 46 departments in Miramichi and transfer the 184,000 pay accounts by December 2015. Then came the Phoenix installation and the transfer of 101 departments in two waves.

But the project had growing pains. It hit a major glitch last summer when hundreds of employees complained about delayed and botched payments and blamed the pay centre. The department attributed some of those delays to a new pay-in-arrears plan, which meant new employees waited four weeks before getting their first paycheque.

At Miramichi, however, pay advisers complained they couldn’t keep up with the pace and “tsunami” of files departments were transferring. Many of the employees were new and needed to be trained. They complained about backlogs, burnout, poor training, lack of support, and little coaching for difficult files.

…

135        Ms. Lackie, the GSU’s president, stated that the GSU was aware of problems as early as February of 2016. She stated that she had received calls and emails from the staff in Miramichi. She said that she brought these concerns to Ms. Fortin (the ADM at PSPC) in direct conversations.

136        Mr. Aylward was brought to that article and was asked about the comment attributed to the PSAC about a slow pace. He replied that the PSAC believed that the TPA project was moving too quickly, that the PSAC saw some things that raised “serious concerns”, and that the PSAC suggested to the employer not to proceed with the initial rollout.

137        The February 28 article stated that there were problems with the new pay system, and it specifically referred to glitches and stated that hundreds of employees complained about delayed and botched payments of pay. The article specifically refers to the PSAC stepping in and urging slowing the pace.

C. The April 18 article

138        The April 18 article reported as follows on the second part of the Phoenix pay system rollout:

…

An Ottawa bureaucrat, who didn’t want his name published, has been caught twice in pay delays. Last summer, his term contract was renewed and he went 10 weeks without pay. With a young family and a new home, he took out a loan to tide him over.

Today, he hasn’t been paid for four weeks and ‘counting.” He is back at work from a five-week parental leave he asked for months ago that has yet to be formally processed. He is surrounded by colleagues facing similar fates because they went on leave, got a promotion or a contract renewed, including one who “hasn’t been paid a thing, nothing” since January.

It’s unclear how many people are not getting paid, as opposed to those who are getting paid but not all they are owed.

…

… Unions say the pay centre is swamped, Phoenix isn’t working and employees are so stressed they won’t be able to cope when thousands of new files are dumped on them.

…

Chris Aylward, vice-president of the Public Service Alliance of Canada, vehemently disagrees.

“They are full of s—,” said Aylward. “They have put so much pressure on the pay centre and Phoenix doesn’t work, plain and simple. Not only that, employees are told to say the problems are not because of problems with Phoenix.”

The PSAC is in the firing line of angry employees not getting paid and the 550 compensation advisers. Aylward met with them in Miramichi on Friday and got an earful. They claimed the centre now has a backlog of 115,000 cases yet to be assigned.

…

139        Mr. Aylward confirmed that he was interviewed for the April 18 article. When the comments about the PSAC’s concerns in it were put to him, he testified that the PSAC told the employer that if it went ahead with the April rollout, it would compound issues that the PSAC was already hearing about after the initial rollout. He also stated that after Ms. May interviewed him, he visited the pay centre in Miramichi and spoke to employees at a town hall meeting. He said that he recalled them telling him about a backlog of 115 000 cases.

140        He then testified that after that, he met with Ms. Di Paola (on April 7, 2016) and that she told him she was not receiving any complaints. His response was that he would forward to her those he was receiving. He said that at that meeting, he recalled specifically asking her to delay the second rollout. She confirmed that she met with Mr. Aylward on April 7, 2016, after he had contacted her by text on April 5. She said that at the meeting, he told her that he had received thousands of complaints that people were not getting paid.

141        April 7, 2016, was a Thursday; April 5 was the Tuesday before then, and March 31 was the prior Thursday. While Mr. Aylward did not give a definitive date on which he knew that pay problems were arising from the employer’s new compensation system (Phoenix), it is inconceivable that sometime between March 31 and April 5, all of a sudden, he heard about thousands of compensation problems. Also, according to his testimony, he visited Miramichi after Ms. May interviewed him and before he met with Ms. Di Paolo. As the PSAC’s vice-president at the time who was sitting on the TPA-UMCC, as well as apparently being the PSAC contact with respect to the TPA project, either Mr. Aylward knew of the pay problems that existed before March 31, 2016, or in the Board’s opinion, he ought to have known.

D. The email chain

142        On April 12, 2016, Mr. Aylward was forwarded an email chain containing emails from a person who appears to be a PSAC or component representative to an employer representative. The first email is dated February 10, 2016, which, although Mr. Aylward might not have seen it until April 12, 2016, clearly indicates that bargaining agent representatives in the PSAC’s organization had serious concerns about pay delays. In that email, the representative wrote as follows:

The delays in payments issue is getting worse, since our last meeting with Danielle Lacasse (acting ADM MSC) in October last year, and the frustration of our members, who are at the receiving end, has been increasing. We need to find solutions that deliver results.

A), MT Promotion: We have a significant number of MTs who received their promotions during June or July last year. To-date, most of them have not received their pay according to their level. I have a hard time keeping up with the complaints. They are only reaching out to me after they have exhausted all regular management channels… .

…

B), Students:

…

I have been approached by several managers and students, who (students) did not get their salary in time. Upon inquiries, it seems no message has been given to managers that they should request the student’s first pay by way of emergency check right from the start, so that they do not miss the first pay, while paper work catch up. I thought this was our understanding HR would take this action, and it seems it has not been taken. Many students missed their first pay, and were given an assurance to be paid today (Wednesday) and did not get their pay. On top of it (which seems like a defensive mechanism, and understandably works like adding insult to injury), they received the following message today: “..When an employee has not received its regular pay within 21 days from first day of work, he is asked to follow, with the help of his manager, the steps of the routing process – Payroll Services Centre which can be accessed at the following link...”

Our members are scratching their heads, who is responsible to pay me on time? Is it not my employer’s responsibility?

…

C), Other Pay Issues:

There are many other issues which indicate that the system is not working as it should. I can only share with you a sample of comments, to give you a sense of the problems and the impact on employees:

A Sample of Employees’ comments (random order):

• The implications of this go beyond waiting half a year to get the pay they are due. If the back pay is issued now this year, it will be reflected on their 2016 tax returns at a higher tax bracket rather than for 2015, when reasonably it should have been issued last year.

…

• I am writing to you to inform you that as of this pay check I have not received my annual increment per my collective agreement (CA). My increment day is January 16th of each year, and this previous pay check has not accounted for the increment I am entitled to under the CA.
• Students were hoping to receive their pay for the last 6 weeks today, but didn’t get paid today. So they have to wait another 2 weeks. This is really unacceptable. They have done what they can do. It is the responsibility of the employer to get things resolved and not the students to keep calling.

…

• I did not keep a log of how often I called the Pay Centre (it was a lot, with mostly busy signals). Plus, there was the annoyance of having to become a “vendor” in order to get an emergency salary advancement (ESA), which likely delayed the ESA. I have not seen anything yet as far as a supplementary deposit to make up the difference between the ESA and the regular pay cheque.

…

I wanted to share with you some comments to provide you as accurate as possible the feelings of employees who are at the receiving end of the problems that the pay system has on employees. I believe it is my responsibility to represent our members, and to seek management’s cooperation to address these workplace issues as expeditiously as possible… .

…

[Emphasis in the original]

[Sic throughout]

143        On March 22, 2016, the same bargaining agent representative wrote as follows:

…

The payments situation has not improved; in fact, I am hearing from our members that it has taken a turn for worse. At our biweekly teleconference among stewards, it was raised again and I am under considerable pressure to escalate the issue.

Most managers have not heard that they can ask for emergency cheques for students. There must be a breakdown somewhere. There are too many errors and mistakes. The system is simply not designed to do the job it is supposed to do… .

…

I fully understand that these problems are not your creations. However, it is our management who have to solve them. That is why I proposed the following steps in my message of February 10. I am [sic] my colleagues are trying to work with management to address these problems, which, in the words of our members, have reached an un acceptable [sic] level.

…

144        It is clear that PSAC representatives, either members of component bargaining agents or PSAC employees or unpaid representatives, were well aware of the pay problems being encountered by employees represented by the PSAC. In early February of 2016, a PSAC representative stated in an email that not only were the payment delays worsening, referencing the period after a meeting in October of 2015, but also that it was becoming hard for the representatives to keep up. This strongly suggests that serious pay problems were known as far back as then and that lower levels of the PSAC or its components were making these problems known higher in the organizational structure.

145        Based on the information in that email exchange, it is clear that the PSAC knew of or certainly ought to have known of the pay problems in the late fall and early winter of 2015 to 2016.

E. The grievances

146        Three grievances were filed in March of 2016, before March 31, all by employees who were members of bargaining units represented by the PSAC’s CEIU component. As they all alleged a breach of the collective agreement, they were signed by CEIU representatives on March 8, 11, and 23, 2016, before being delivered to the employer.

147        Sections 208(4) and 209(2) of the Act both address filing grievances with respect to an alleged breach of the (relevant) collective agreement. Section 208(4) provides that an employee may not present an individual grievance relating to the interpretation of a provision of a collective agreement unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement applies. Similarly, s. 209(2) of the Act states that before referring an individual grievance related to the interpretation of a provision of a collective agreement to adjudication, the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

148        All these grievances alleged that pay problems had occurred. It is clear on the face of the grievances that by signing them, respectively on March 8, 11, and 23, 2016, the bargaining agent’s representatives were prepared to represent the employees in the grievance process, by signifying their “[a]pproval for presentation of grievance relating to a collective agreement or an arbitral award, and agreement to represent employee are hereby given”.

149        Accordingly, I need not address the PSAC’s other arguments.

F. Conclusion

150        It is clear from the evidence that people in the PSAC, including representatives, component presidents (Ms. Lackie), and people at the senior executive level (Mr. Aylward), were aware of serious problems arising out of the implementation of the TPA project, including the non-payment of employee pay as early as October of 2015 and other dates that were clearly before March 31, 2016. That being the case, it was incumbent on the PSAC to file this complaint within 90 days of it becoming aware of what it identified as the breach under s. 107 of the Act. Since they did not, the complaint is not timely and I am without jurisdiction.

151        For all of the above reasons, the Board makes the following order:

V. Order

152        The complaint is untimely, and as such I am without jurisdiction.

153        The complaint is dismissed.

February 21, 2019.