Date:  20180524

File: 448-PB-00009

XR: 472-PB-M1

 

 Citation:  2018 FPSLREB 48

Federal Public Sector Labour Relations and Employment Board Act and Parliamentary Employment and Staff Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES

Applicant

 

and

 

Office of the Parliamentary Budget Officer

 

Respondent

 

Indexed as

 Canadian Association of Professional Employees v. Office of the Parliamentary Budget Officer

In the matter of an application pursuant to section 10 of the Parliamentary Employment and Staff Relations Act

Before:  Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant:  Colleen Baumann, counsel

For the Respondent:  Mark Mahabir, counsel

Decided on the basis of written submissions

filed February 15, March 15, April 18, and May 3, 2018.

REASONS FOR DECISION

Introduction

[1]  This is an application brought by the Canadian Association of Professional Employees (“CAPE”) under s. 141 of the Budget Implementation Act, 2017, No. 1 (S.C. 2017, c. 20; “the Budget Act”). The context for this application is similar to that which gives rise to a successor rights application, as it concerns employees with positions that were previously part of the Library of Parliament and that have been transferred to the Office of the Parliamentary Budget Officer (“OPBO”). Consequently, the CAPE has requested an order determining that the employees of the OPBO constitute a unit appropriate for collective bargaining and that the CAPE is the bargaining agent for the employees in this bargaining unit. When it makes determinations in connection with this application, the Board exercises its powers under s. 10 of the Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33; PESRA).

[2]  The OPBO was established pursuant to ss. 126 to 129 of the Budget Act. Those and other related provisions came into force on September 21, 2017. As stated, the OPBO’s functions were previously carried out by the Library of Parliament. The labour relations regime governing this conversion process is set out in the Budget Act. It provides that every employee who occupied a position within the Library of Parliament that supported the former Parliamentary Budget Officer occupies a position in the OPBO. This became effective September 21, 2017.

[3]  The CAPE was the certified bargaining agent for the Library of Parliament bargaining unit and had given notice to bargain for that unit before the conversion took place. The Budget Act provides that such notice is not binding on the OPBO. Before giving a new notice to bargain, the bargaining agent or the OPBO must make an application under s. 141 of the Budget Act. When such an application is made, s. 141(a) provides that the Board must determine the following:

i. whether OPBO employees represented by the bargaining agent constitute one or more units appropriate for collective bargaining; and

ii. which employee organization is to be the bargaining agent for the employees in each such unit.

[4]  The application under s. 141 of the Budget Act had to be made during the period beginning on the 120^th day after September 21, 2017, and ending on the 150^th day after that day. Once the Board makes the prescribed determinations under s. 141(a), the OPBO or the bargaining agent may, by notice under s. 37 of the PESRA, require the other to commence collective bargaining for the purpose of entering into a collective agreement (see s. 141(b) of the Budget Act).

The application

[5]  On February 15, 2018, the CAPE filed its application under s. 141 of the Budget Act. The application, which met the prescribed timelines, was filed with the consent of OPBO (the employer). After it was filed, the parties agreed to amend the description of the proposed bargaining unit to “all employees of the Office of the Parliamentary Budget Officer”. The employer submitted a list of positions to be excluded from collective bargaining on the grounds that they were managerial or confidential, and the CAPE consented to their exclusion. Accordingly, the proposed bargaining unit would include 14 positions.

[6]  In its written submissions, the CAPE outlined its history as the bargaining agent for these positions. The Parliamentary Budget Officer position was first created in 2006. Its work was supported by employees within the Library of Parliament bargaining unit, for which the CAPE is the bargaining agent. While the Budget Act established the OPBO as an employer separate from the Library of Parliament, the CAPE’s written submissions noted that the OPBO stated that it intends to maintain a similar occupational group structure. Accordingly, all the positions in the proposed bargaining unit will remain in the same occupational group or sub-group in the OPBO.

[7]  The CAPE provided an overview of the OPBO’s mandate as well as the educational requirements and the job descriptions of the positions in the proposed bargaining unit. The CAPE noted that as the OPBO is a small organization, the proposed bargaining unit is, accordingly, small. In fact, if the application is granted, the proposed unit will be the sole bargaining unit at the OPBO, and the CAPE will be the sole bargaining agent.

[8]  The CAPE further submitted that the legislative regime set out in the Budget Act is similar to the successor rights provisions found in the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2). The inherent purpose of those provisions is to
“… maintain the continuity of collective bargaining relationships and to ensure the protection of the collective bargaining rights of employees and their bargaining agents” (see Canada Customs and Revenue Agency v. Association of Public Service Financial Administrators, 2000 PSSRB 75; “the Customs decision”). Allowing the CAPE’s application would achieve those goals.

Reasons

[9]  The Board agrees that the proposed bargaining unit is appropriate for collective bargaining. As set out in the written submissions included with the application, the proposed unit is coextensive with the existing and the proposed occupational group structure at the new OPBO, and the employees in the proposed unit share a community of interest, as evidenced by their job descriptions, educational requirements, and a common bond, given the specialized nature of their mandate. Each of these factors militates in favour of a single bargaining unit (see Parks Canada Agency v. Professional Institute of the Public Service of Canada, 2000 PSSRB 109). Accordingly, the Board determines that the OPBO employees constitute an appropriate unit for collective bargaining.

[10]  Furthermore, the Board determines that the CAPE is to be the bargaining agent for the proposed bargaining unit. As the CAPE submitted, this application procedure is similar to a successor rights application. In fact, s. 141 of the Budget Act closely mirrors s. 48.1 of the former Public Service Staff Relations Act (R.S.C., 1985, c. P-35; PSSRA); the purpose and effect of that section was carefully considered by this Board’s predecessor in the Customs decision.

[11]  In that case, the Board found as follows at paragraph 19:

… it was not intended that an employee organization which had no pre-existing rights can be involved in a successor rights application. Rather, what was meant to be conveyed is that Board has to make a determination as to which employee organization which had previously been certified as a bargaining agent will continue to have that status.

[12]  One difference in wording is that under s. 48.1(3) of the PSSRA, the employer or “… any bargaining agent affected by the change in employment …” may make the application; under s. 141 of the Budget Act, it is the employer or “the bargaining agent” (emphasis added) that may make the application. In the Board’s view, the meaning is the same. Only an employee organization that had been certified as the bargaining agent for the employees subject to the application may make an application under this section.

[13]  In this application, only one bargaining agent, the CAPE, had been certified for the group of employees in question before their conversion. Accordingly, the Board determines that the CAPE is to be the bargaining agent for the proposed bargaining unit.

[14]  Finally, the parties have reached an agreement as to the positions that are to be excluded on a managerial and confidential basis.

[15]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

Order

[16]  All the positions identified in the annex to this decision are managerial or confidential.

[17]  The Canadian Association of Professional Employees is certified as the bargaining agent for the following bargaining unit: “All employees of the office of the Parliamentary Budget Officer”.

May 24, 2018.

 

Marie-Claire Perrault,

A panel of the Federal Public Sector Labour Relations and Employment Board

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex – File 448-PB-09/472-PB-M1 – Managerial or Confidential Positions

 

FPSLREB  Reference No.  No de référence CRTESPF	Department or Agency  Ministère ou organisme	Bargaining Unit  Unité de négociation	Position Number  Numéro de poste	Classification	Position Title and Description  Titre du poste et description	Geographic Location  Lieu d'occupation	Grounds for Exclusion  Motifs d'exclusion
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1000	GC-5	Parliamentary Budget Officer / Directeur parlementaire du budget	Ottawa	paragraph (a)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1001	LEX-3	Deputy Parliamentary Budget Officer / Directeur parlementaire adjoint du budget	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1004	LEX-1	Director of Policy (Costing) and General Counsel / Directeur des politiques (Coût) et avocat général	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1002	LEX-2	Senior Director Costing and Budgetary Analysis / Directeur principal de l'équipe d'estimation des coûts et d'analyse budgétaire	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1005	LEX-2	Senior Director Economic and Fiscal Analysis / Directeur principal de l’analyse et des prévisions économiques et financières	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1003	LEX-2	Director of Executive Services  / Directeur services exécutifs	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1008	MPA-5	Manager Human Resource Services / Gestionnaire des Services des ressources humaines	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1007	MPA-4	Human Resources Analyst for Staffing and Classification / l’Analyste des ressources humaines pour la dotation et la classification	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1006	MPA-4	Office Manager / Gestionnaire de bureau	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1030	MPA-2	Administrative Assistant / Adjointe administrative	Ottawa	paragraph (d)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1010	BAW	Research Assistant / Adjoint à la recherche	Ottawa	paragraph (b)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1011	BAW	Research Assistant / Adjoint à la recherche	Ottawa	paragraph (b)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1020	BAJ	Research Assistant / Adjoint à la recherche	Ottawa	paragraph (b)
448-PB-09	Office of the Parliamentary Budget Officer - Bureau du directeur parlementaire du budget	Canadian Association of Professional Employees Association canadienne des employés professionnels	P1028	STU	Intern / Stagiaire	Ottawa	paragraph (b)