Date: 20210628

File: 561-02-40874

 

Citation: 2021 FPSLREB 77

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

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

Between

National Police Federation

Complainant

 

and

 

Treasury Board

(Royal Canadian Mounted Police)

Respondent

and

PUBLIC SERVICE ALLIANCE OF CANADA

Intervenor

Indexed as

National Police Federation v. Treasury Board (Royal Canadian Mounted Police)

In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act

Before: David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Christopher Rootham and Adrienne Fanjoy, counsel

For the Respondent: Jena Montgomery, counsel

For the Intervenor: Andrew Astritis, counsel

 

Heard via videoconference,

April 12, 13, and 21, 2021.

REASONS FOR DECISION

I. Complaint before the Board

[1] This is a complaint about the “civilianization” of certain duties at the Royal Canadian Mounted Police (“the RCMP”) during the freeze period that follows a certification application. In this matter, “civilianization” was the term used by the parties to describe the movement of duties from regular members of the RCMP to civilian employees or positions (or, as the parties in this case described them “public service employees or positions”).

[2] The duties at issue involve the delivery of the Cadet Training Program (CTP) to new recruits at the RCMP Depot Division located in Regina, Saskatchewan (“the Depot”).

[3] The complaint was made by the National Police Federation (“the NPF” or “the complainant”). On April 18, 2017, the NPF made a certification application to represent the RCMP’s regular members and reservists under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; now titled the Federal Public Sector Labour Relations Act; “the Act”).

[4] On May 23, 2019, the RCMP announced that it would create five new instructor/facilitator positions, classified at the AS-04 group and level, and fill them with public service employees, to help deliver the Applied Police Sciences (APS) course to cadets at the Depot. At the time of the announcement, the APS course was being delivered entirely by regular members of the RCMP.

[5] The NPF made its complaint on August 19, 2019, against the Treasury Board (“the employer” or “the respondent”). It alleged that through the RCMP, the employer was making a unilateral change to the terms and conditions of employment, in violation of s. 56 of the Act.

[6] In January 2020, as a panel of the Federal Public Sector Labour Relations and Employment Board (“the Board”), I agreed to hear the parties’ written and oral submissions on a preliminary question with respect to this complaint. That question read as follows:

Does the Federal Public Sector Labour Relations Act prevent the National Police Federation and Treasury Board from including in a collective agreement, as a “term or condition of employment”, a prohibition on appointing or assigning a public service employee to perform duties that were being performed at the time by regular members of the RCMP?

 

[7] In National Police Federation v. Treasury Board (Royal Canadian Mounted Police), 2020 FPSLREB 102 (“Depot 1”), I answered the preliminary question in the negative. I found that the Act does not prevent the parties from voluntarily agreeing to a provision that would require certain cadet instructional duties to be performed by regular members of the RCMP. I ordered that the case be heard on its merits, which is the matter now before me.

[8] In Depot 1, intervenor status was granted to the Public Service Alliance of Canada (PSAC). As PSAC represents employees classified AS-04, I determined that it had a substantial interest in this matter (see Depot 1, at paras. 9 to 13). For this hearing, PSAC was granted full status as intervenor but chose only to make arguments.

[9] Following a case management conference with the parties and the intervenor, two days (April 12 and 13, 2021) were scheduled to hear opening arguments and witness testimony. The parties and intervenor provided written summaries of their arguments on April 19, 2021, which were presented and expanded upon in oral arguments made on April 21, 2021.

[10] My reasons for decision on this complaint are organized as follows.

[11] I start with a summary of the evidence with respect to the role of the APS facilitators at the Depot and the decision to create five civilian positions.

[12] Next, I lay out a general framework for the analysis of freeze complaints under the Act and consider the parties’ general arguments on how the provision at s. 56 is to be applied.

[13] In applying that framework, I conclude that this complaint boils down to two key issues that form the longest sections of these reasons for decision.

[14] The first is a dispute between the parties about the term and condition of employment in existence at the time the NPF applied to represent regular members. The complainant argued that the term and condition in place was that only regular members served as APS facilitators. The respondent argued that the term and condition in place was the employer’s retained right to assign duties and classify positions, in accordance with s. 7 of the Act. All it did during the freeze period was exercise that right. I refer to this as “the section 7 issue”.

[15] I examine the section 7 issue and review the parties’ arguments about both the case law and the proper statutory interpretation of the Act. The term and condition of employment at issue is the assignment of APS facilitator duties. Under s. 7, the employer has the right and discretion to assign those duties. But s. 7 does not provide a complete answer to this s. 56 complaint. Consistent with the Act and case law, the Board must also examine when and how the respondent exercised its discretion to assign duties. In considering the circumstance of this case, I conclude that it had used its discretion to assign APS facilitation duties to regular members and that it changed that during the freeze period by assigning those duties to civilian positions.

[16] Having reached that conclusion, the second key issue is whether the creation of five civilian positions and the assignment of APS facilitator duties to them was consistent with the employer’s established management practices, requiring what is generally referred to in decisions on freeze complaints as a “business-as-before” analysis. I will summarize the evidence about past practice provided by the witnesses. I conclude that the decision to create these five civilian positions represented a departure from business as before.

[17] As the complaint is allowed, the final section deals with the question of remedy.

II. Summary of the evidence

[18] The parties relied on the same agreed statement of facts they provided the Board in Depot 1 (which was reported on at paragraphs 17 to 28 of that decision).

[19] To supplement those facts, the NPF called these two witnesses:

1) Staff Sergeant Dick Tremblay, Career Development Resource Officer at the Depot, where he is responsible for several human resources functions involving instructional positions; and

2) Morgan Buckingham, currently a full-time elected officer with the NPF representing the region that includes the Depot, on leave from his position as a regular member of the RCMP, and a member of the NPF’s collective bargaining team.

 

[20] In turn, the respondent called these four witnesses:

1) Garry Jay, formerly a senior director of human resources programs and services at the RCMP, now semi-retired;

2) Assistant Commissioner Jasmin Breton, currently Chief Learning Officer for the RCMP, and at the time of the events in question, Commanding Officer (CO) of the Depot (from July 2018 to September 2020);

3) Diane Buchan, Team Leader and Senior Organization and Classification Advisor for the RCMP region that includes the Depot;

4) Graham Lavery, Acting Director of Corporate Organization and Classification at RCMP Headquarters in Ottawa, Ontario.

 

[21] This summary of the evidence draws on the agreed statement of facts and the undisputed evidence provided by the witnesses about the events involving the creation and filling of the AS-04 positions.

[22] Much of the witness testimony concerned the RCMP’s past practices involving the civilianization of regular member duties; that evidence will be summarized in the business-as-before analysis portion of this decision, as it relates directly to the parties’ arguments.

[23] All new RCMP recruits go through a 26-week training and assessment process at the Depot. Each recruit is a member of a 32-person troop. Currently, approximately 40 troops are trained each year. With an attrition rate of about 20 per cent, approximately 1000 cadets make it through the program each year. Those who are successful can be hired as regular members of the RCMP with peace officer status and placed into front-line positions somewhere in Canada.

[24] There are approximately 21 000 regular members employed with the RCMP. A significant proportion of them provide police services to provinces and municipalities through the RCMP’s “contract” policing program.

[25] Part of the CTP training focuses on hard skills such as firearms, driving, and operational conditioning (fitness). However, the academic core of the program is APS, with its modules on subjects such as the Criminal Code, the practice of law enforcement, and the RCMP’s mission, vision, and values. In addition to classroom training, APS uses “scenarios” to prepare cadets for situations they might face in the field. Using actors to play the roles of victims or perpetrators of crime, the scenarios are designed to teach cadets how to apply policing theory to real-life situations (e.g., a domestic assault, a theft in process, a drug raid, etc.).

[26] Each troop of 32 cadets is assigned a team of 3 APS facilitators. I will use this as a generic term to refer to the role generally, whether it is performed by a regular member or a public service employee.

[27] The team of facilitators delivers the modules, runs the scenarios, and provides advice and feedback to cadets. They also monitor and assess cadet performance. In each troop, one of the three facilitators acts as the team lead.

[28] At the Depot, there are approximately 50 APS facilitators. The APS team as a whole consists of approximately 87 positions.

[29] Historically, and until the events that led to this complaint, the APS facilitator role was filled by regular members of the RCMP. They served a three-to-five-year rotation in the role. After their rotation, unless otherwise promoted or retiring, they were posted back into the field as police officers.

[30] For regular members, the RCMP uses a “job code” in place of a classification system. The job code for the APS facilitator is 000360, and its title is “Instructor/Facilitator – Applied Police Sciences Unit”. The job code is at the rank of corporal (AM-02).

[31] Witnesses provided different perspectives on the benefits and disadvantages of the rotational system. S/Sgt. Tremblay testified that rotating new members into the APS facilitator role brings recent field experience into the program. He said that the role also provided regular members with an opportunity to recharge and develop new skills. It is also attractive as a posting for constables, because the job is paid at the rank of corporal. He testified that staff at the Depot maintained a “longevity” list to track how long members had been there, so that they could be rotated back into the field, making space for “new blood” to bring back into the Depot program.

[32] While not contradicting that testimony, A/Commr. Breton testified that the current rotational model led to a lack of stability in the APS program. This lack of stability was the primary factor that led him to consider civilianizing some of the facilitation duties when he started as CO of the Depot in July 2018.

[33] I will note here that A/Commr. Breton also served as an APS facilitator earlier in his career, for a period of about two years (2001-2003), and so testified from both his direct experience in the job and his subsequent leadership role over the CTP.

[34] A/Commr. Breton testified that when he started as CO, he did not want to rush into making changes to the APS facilitation role. In early 2019, he started putting the wheels in motion. He asked S/Sgt. Tremblay to identify five vacant regular member facilitator jobs to civilianize, as a pilot project. According to S/Sgt. Tremblay, the eventual plan was to use one public service employee facilitator and two regular member facilitators per troop.

[35] As CO of the Depot, A/Commr. Breton then asked staff to develop a statement of duties for the public service employee position. The job title given to the position was “Instructor/Facilitator – Applied Police Sciences Unit”. The work description was sent to Ms. Buchan, who determined that the position should be included in the Program and Administrative Services (PA) group represented by PSAC and that it should be classified at the AS-04 group and level.

[36] A/Commr. Breton also asked staff to develop a business case for the creation of the five civilian positions. The business case argued that using public service employees would introduce greater stability into the program; i.e., facilitators might stay for more than three to five years. Another goal articulated in the business case was to keep more regular members in the field. Finally, the case did identify potential savings as a result of civilianization. A/Commr. Breton testified that the savings were due to the facts that the AS-04 salary is lower than that of an AM-02 corporal, that regular members receive a pay premium for being subject to potential call-outs to perform peace officer duties, and that regular members incur significant relocation costs due to the rotational system.

[37] In April of 2019, A/Commr. Breton shared his decision to civilianize the five APS facilitator positions with the RCMP’s Contract Management Committee, a consultative body with representatives from different provinces where the RCMP is engaged in contract policing. Given that provinces and municipalities depend on the Depot training program to replenish the ranks of regular members, the Committee is an opportunity to share information and consult on changes to the program. In the presentation, the change was called “civilianization/professionalization”. A/Commr. Breton testified that the word “professionalization” was used to enhance the importance of the role played.

[38] The formal creation of the AS-04 positions in the RCMP’s Human Resources Management Information System (HRMIS) took place on May 9, 2019.

[39] On or about May 23, 2019, A/Commr. Breton held a town-hall meeting with APS staff and announced the implementation of the AS-04 public service employee positions. This news was summarized in an email to APS staff dated May 27, 2019, which reads as follows:

...

Specialization (previously referred to as Civilianization): Five PSE positions are being advertised for APS facilitators in the very near future. They will be classified as AS04. Not only will this ensure consistency in program delivery, but also it will keep more RM positions in the field and save money. At the 18-24 month mark, this initiative will be evaluated. If successful, we can expect the number of PSEs to be doubled. At the five year mark, the initiative will be evaluated again and a determination will be made of whether to expand or dismantle. For the initial five PSE positions, they will be looking for ex RM’s [sic] from the RCMP, ideally with facilitation experience at Depot.

...

 

[40] Less than two months after that announcement, the NPF was certified as the bargaining agent for regular members and reservists (see National Police Federation v. Treasury Board, 2019 FPSLREB 74, released on July 12, 2019). On July 15, 2019, it served notice to bargain on the employer.

[41] As already noted, the NPF made this complaint on August 19, 2019, alleging a violation of s. 56 of the Act.

[42] The selection process for the five AS-04 positions began in June 2019. Three employees were eventually hired into those positions with an English-only language requirement. Two were retired regular members of the RCMP. The third was a regular member who retired from that role to take the public service employee position. Their start dates ranged between November 2019 and April 2020.

[43] The RCMP was not able to recruit anyone to fill the two bilingual AS-04 positions. S/Sgt. Tremblay testified that they could not find qualified bilingual candidates who wanted to permanently reside in Regina.

[44] Therefore, on August 1, 2020, RCMP management requested that the two bilingual AS-04 positions be reverted back to a regular member job. The process for making this change involved reversing the process that had been used to create them: at the request of Depot management, a request to convert the two positions back to regular member jobs was made to Ms. Buchan. She determined that job code 000360 was appropriate, and the change was implemented in the HRMIS.

[45] Given the nature of the APS program, there is no dispute between the parties that all APS facilitators require experience as a police officer. A/Commr. Breton and S/Sgt. Tremblay testified in the most detail about the nature of the role. Both agreed that only those with police experience could provide both the instruction required and feedback to cadets on their performance during the scenarios.

[46] A/Commr. Breton said that the decision to civilianize the duties was based on an assessment that the APS facilitation role did not, in and of itself, require “a badge and a gun.” Nevertheless, he said that the target recruitment pool for the AS-04 positions included retired RCMP officers or recruits from either municipal or provincial police forces. He testified that the only job-related distinction between public service employees and regular member facilitators was that the latter could be called out in emergency situations for which a peace officer was required. The AS-04s, as retired police officers, could not be called out.

[47] A/Commr. Breton also testified that the role of the APS facilitator had not substantively changed from the time he did a rotation as one in 2001-2003. While some modules and scenarios had been adapted and some laws had changed (e.g., the legalization of marijuana), the basic structure of the APS program remained the same.

[48] Finally, I will note that in cross-examination, A/Commr. Breton was asked a number of questions about his decision to create the five AS-04 positions. He acknowledged that it was “a new idea” that he wanted to try, because of his desire to create more stability in the program. The goal of stability was addressed in the business case. He also testified that when he was making his decision, he was aware of the certification freeze at s. 56. He said that he consulted with Labour Relations about the idea. He said that he was told that if he civilianized vacant jobs, he would be “good to go.”

III. The analytical framework for freeze complaints under the Act

[49] Before considering the parties’ specific arguments on this complaint, I will introduce the analytical framework that I will apply to it.

[50] I will follow the framework set out in two other certification freeze decisions I rendered as a panel of the Board, involving the same parties: National Police Federation v. Treasury Board (Royal Canadian Mounted Police), 2020 FPSLREB 71 at paras. 27 to 96 (“Whistler Parking”), and National Police Federation v. Treasury Board (Royal Canadian Mounted Police), 2020 FPSLREB 72 at paras. 23 to 92 (“Victoria Parking”).

[51] That framework followed two other recent Board decisions, National Police Federation v. Treasury Board, 2020 FPSLREB 44 (“RCMP Promotional Rules”), and Public Service Alliance of Canada v. Canada Revenue Agency, 2019 FPSLREB 110 (“Sudbury Tax Centre”).

[52] The freeze provision following an application for the certification of a bargaining agent for a bargaining unit is set out at s. 56 of the Act as follows:

Continuation of terms and conditions

56 After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer is not authorized, except under a collective agreement or with the consent of the Board, to alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

(a) the application has been withdrawn by the employee organization or dismissed by the Board; or

(b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.

[Emphasis in the original]

 

[53] This is similar to the freeze provision following a notice to bargain, which is set out at s. 107. The essential element of these provisions is very similar in that an employer is prohibited from making unilateral changes to terms and conditions of employment once a certification application or a notice to bargain is served. Section 56 contains a provision under which an employer can seek the Board’s permission to alter terms and conditions. While that does not exist in s. 107, the latter allows for the parties to reach agreement on a change to terms and conditions.

[54] While the two types of freezes have a similar impact, their purposes have been recognized as somewhat different. The purpose of the bargaining freeze has been recognized as providing a stable point from which negotiations can take place (see Whistler Parking, at para. 35). The certification freeze has been recognized by the Supreme Court of Canada (SCC) as being designed to “facilitate certification” (see United Food and Commercial Workers, Local 503 v. Wal­Mart Canada Corp., 2014 SCC 45 at paras. 34 and 35 (“Wal-Mart”)).

[55] The analysis of both types of complaints starts with a first stage, in which the decision maker assesses whether the complaint meets the following four-part test (see, for example, Sudbury Tax Centre, at para. 137, and Wal-Mart, at para. 39):

1) that a condition of employment existed on the day the certification application was filed (or following notice to bargain, in the case of a bargaining freeze);

2) that the employer changed the condition of employment without the consent or approval of the Board (or the bargaining agent, in the case of a bargaining freeze);

3) that the change was made during the freeze period; and

4) that the condition of employment is capable of being included in a collective agreement.

 

[56] Complaints that meet all four of those elements are then subject to a second stage of analysis, most often termed a “business-as-before” analysis. That assessment is set out succinctly in an often-cited decision of the Ontario Labour Relations Board (OLRB), Spar Professional and Allied Technical Employees Association v. Spar Aerospace Products Limited, 1978 CanLII 2255 (ON LRB) at para. 23, as follows:

23. The “business as before” approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union....

 

[57] Up to this point, the basic framework is not in dispute between the parties or the intervenor. The framework recognizes that the freeze provisions operate as a strict liability; i.e., it does not depend upon employer intent to affect the certification process or on evidence of anti-union animus. At the same time, the freeze provisions do not operate as a “deep freeze” that prevent employers from making any changes to the workplace.

[58] Depot 1 followed this basic framework (see paragraphs 68 to 72) and provided an answer to the fourth question at the first stage of analysis: whether the term and condition at issue is capable of being included in a collective agreement. At paragraph 136, I concluded that “... the Act does not prevent the parties from voluntarily including in a collective agreement a provision that would have the effect of ensuring that only RCMP regular members perform certain instructional duties vis-à-vis cadets.”

[59] In Depot 1, I also directed that the complaint proceed to a hearing on its merits, where I would hear the parties’ arguments on whether it met the other three elements at the first stage, and if so, whether the change made was consistent with the employer’s business as before.

[60] The parties dispute whether question #1 through question #3 at the first stage of analysis are met with this complaint.

[61] The complainant argued that before the change, only regular members had been assigned duties as APS facilitators. That was the term and condition that was frozen, it said. In Depot 1, the Board already accepted the argument that a term and condition restricting the assignment of APS facilitation duties could be embodied in a collective agreement. According to the complainant, the RCMP clearly changed that term and condition. As such, both question #1 and question #3 are met.

[62] The respondent disputed the existence of a term and condition of employment that reserved the APS facilitator role for regular members. It argued that the terms and conditions of employment that existed when the certification application was made included the employer’s unrestricted right to organize the federal public administration, assign duties, and classify positions, as set out in s. 7 of the Act. In the absence of a voluntarily negotiated agreement to give up some of those rights, the employer retains those rights, the respondent argued. As such, the employer did not change the terms and conditions of employment. All it did was exercise the right it had. Therefore, the complaint fails at question #3, the respondent argued.

[63] The parties also disagree on their analysis of the employer’s business-as-before practices. The respondent argued that if the Board does find that the complaint meets all four elements in the first stage, it should find that the civilianization of regular member duties has been a regular part of the RCMP’s management practices and that the assignment of APS facilitation work to public service positions was consistent with its business as before. The complainant argued that the creation of the public service APS facilitator position was inconsistent with the RCMP’s past management practices.

[64] Thus, as already noted, there are two key issues in dispute in this matter: (1) the term and condition of employment under analysis, and (2) the business-as-before analysis. These two key issues take up the bulk of the reasons that follow.

[65] However, I will first discuss two other aspects of the basic framework of analysis set out in Whistler Parking, Victoria Parking, RCMP Promotional Rules, and Sudbury Tax Centre that the parties did not agree upon. While important, I will discuss them only briefly as they do not factor largely into my analysis.

[66] The first of these concerns the treatment of what has been called “employees’ reasonable expectations” in the analysis of freeze complaints. In Whistler Parking, I had found that an assessment of employees’ expectations was closely related to the business-as-before analysis (at paragraphs 43 to 52). In doing so, I concurred with the Board’s conclusion in RCMP Promotional Rules, which stated this succinctly at paragraph 70, as follows:

[70] The concept of employees’ expectations is an inherently logical aspect of a business-as-usual analysis. If employees have a reasonable expectation that something will happen, in the absence of evidence to the contrary, one can assume that they have that expectation because it happened before, because it usually happens, or because they were told it would happen. Their expectations are not made out of whole cloth but are based on their workplace experiences or on what they have been told. It is a simple matter of logic and probability.

 

[67] The second issue concerns the treatment of what has been called the “reasonable-employer” analysis that the SCC applied in Wal-Mart. This involves assessing whether an employer’s actions are consistent with what a reasonable employer would have done in the same circumstance. In Whistler Parking (at paragraphs 70 to 90), I followed the Board’s decision in Sudbury Tax Centre and found the reasonable-employer analysis to be a possible third stage of analysis, in situations in which a business-as-before analysis is not possible.

[68] The respondent disputed both approaches. It argued that in Wal-Mart, the SCC did not recognize employees’ expectations as relevant to the business-as-before analysis. Rather, the SCC considered only employees’ reasonable expectations in determining whether a “condition of employment” (in that case an expectation of continued employment) existed for the purposes of the statutory freeze (see Wal-Mart at para. 42).

[69] The respondent also argued that the SCC applied the reasonable-employer analysis as an alternative to the business-as-before analysis. By doing so, the Court provided “... two ways for the arbitrator to determine whether a specific change is consistent with the employer’s normal management practices” (see Wal-Mart, at para. 55), the respondent argued. Those two ways are past management practice and what a reasonable employer would have done in the same circumstances.

[70] The respondent noted that it initiated a judicial review of RCMP Promotional Rules, through which it asked the Federal Court of Appeal (“the FCA”) to rule on these disputed arguments (at the time of this writing, a decision had yet to be issued). It respectfully suggested that the Board also got the analysis wrong in Sudbury Tax Centre, Whistler Parking, and Victoria Parking, although for several reasons, it did not seek judicial review of those decisions.

[71] I will not comment at length on these two areas of disagreement between the parties on the framework of analysis. Employees’ reasonable expectations did not factor large in the arguments before me, except in relation to the question of what term and condition of employment existed at the time of the freeze. This consideration of employees’ expectations is not inconsistent with the respondent’s arguments.

[72] Furthermore, in this case the respondent did not rely on the reasonable employer argument. As already noted, its arguments focused on the application of s. 7 of the Act and on whether previous incidents of civilianization established that the employer’s actions were consistent with business-as-before.

[73] Therefore, I do not believe that a detailed analysis of the parties’ and intervenor’s arguments about the proper treatment of Wal-Mart on these issues is required to determine this complaint. The differences in position, while substantial, do not significantly impact my decision, as explained later.

IV. Section 7 of the Act and the term and condition of employment at issue

A. Introduction

[74] I turn now to the first of the key issues argued by the parties.

[75] As noted, for the Board to determine that this freeze complaint is founded, it must conclude that a term and condition of employment existed at the time the certification application was made (question #1) and that the employer changed the term and condition of employment without the Board’s permission (question #2) during the period of the freeze (question #3).

[76] The NPF asserted that the term and condition of employment that existed at the time of certification was that all APS instruction of cadets at the Depot was performed by regular members (question #1). When it created the AS-04 positions, the employer changed the term and condition of employment and did not seek the permission of the Board (question #2). This change occurred during the freeze period (question #3). As the Board has already answered question #4, it should proceed to the business-as-before analysis, the NPF said.

[77] The respondent denied that the term and condition of employment cited by the NPF existed before the statutory freeze. It acknowledged that the phrase “term and condition of employment” is not defined in the Act and that it has been defined broadly as being directly related to the regulation of employer-employee relations (see Syndicat Catholique des Employés de Magasins de Québec Inc. v. Paquet Ltée, [1959] SCR 206, and Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2 at para. 26). However, it argued that the Board should look to the provision found at s. 7 of the Act to determine what term and condition existed before the freeze. It reads as follows:

7. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board or a separate agency to determine the organization of those portions of the federal public administration for which it represents Her Majesty in right of Canada as employer or to assign duties to and to classify positions and persons employed in those portions of the federal public administration.

[Emphasis added]

 

[78] In the absence of a voluntarily agreed-to collective agreement provision limiting the rights and authorities it has in s. 7 of the Act, the respondent argued that it retained the freedom to assign duties and classify positions. That section is integrally linked to the regulation of employer-employee relations. As such, it formed a part of the terms and conditions of employment. That freedom is also capable of being negotiated into a collective agreement, it argued. That freedom was the term and condition of employment that existed before certification (question #1). It retained that right after the certification application was made. When it created and classified the public service employee positions, it followed the term and condition of employment already in place, the respondent argued. As it did not change the term and condition of employment, the complaint should fail at the first stage, it argued.

[79] There is no jurisprudence that applies the statutory freeze test in a way that encroaches upon the employer’s s. 7 right and authority to assign duties and classify positions, the respondent argued. As such, the Board should look to the plain text of s. 7 and conclude that the Treasury Board has a clear and unequivocal right to make these changes.

[80] The NPF disputed these assertions. It argued that the FCA and the Board (and its predecessors) have repeatedly confirmed that s. 7 of the Act does not limit or prevent the operation of the statutory freeze. It also argued that the text, context, and purpose of the Act support that conclusion. PSAC made similar arguments.

[81] I will take each of these arguments in turn, with the case law first and the statutory interpretation analysis of s. 7 second.

B. Section 7 of the Act: the case law

[82] Generally, I will organize the arguments about the case law in chronological fashion. I shall use “the Board” to refer to both the Board and its predecessors, the Public Service Staff Relations Board (PSSRB), the Public Service Labour Relations Board (PSLRB), and the Public Service Labour Relations and Employment Board (PSLREB). The exception I will make to the chronological approach will be for those cases from outside the Board’s jurisdiction (including two from New Brunswick and three from Ontario), which I will take up at the end of this subsection.

[83] I will start with a pair of decisions from the FCA issued in 1986 and 1987 and already referenced in Depot 1 (at paragraph 45). In the first, Public Service Alliance of Canada v. Canada (Treasury Board), [1987] 2 F.C. 471 (C.A.) (“PSAC Language Teachers 1”), the FCA addressed the scope of issues that could be the subject of an arbitral award. One of the issues involved a proposal by the bargaining agent to cap the number of hours a teacher could be required to teach in a classroom. The Board had found this proposal outside the scope of what an arbitration board could award under the Public Service Staff Relations Act (R.S.C., 1970, c. P-35; PSSRA, the predecessor to the Act). The FCA ended up concluding that a cap on classroom duties would interfere with the Treasury Board’s rights found at s. 7, which it called “the untouchable prerogatives of Government” (at paragraph 6).

[84] Shortly after that, the FCA again addressed the issue of a cap on classroom teaching hours but this time in the context of a collective-bargaining freeze complaint (see Public Service Alliance of Canada v. Canada (Treasury Board), [1987] F.C.J. No. 240 (QL)(C.A.)(“PSAC Language Teachers 2”)). The issue was no longer what could be the subject of an arbitral award; it was whether the freeze included a clause in the collective agreement that had been previously freely negotiated by the parties, which placed a cap on classroom hours. The question was whether s. 7 should be applied in a manner such that the collective agreement provision in question would not be subject to the freeze. The FCA replied in the negative, ruling as follows:

...

Section 7 is not the embodiment of a divine right theory of executive power nor even a more limited proclamation of governmental soveignty [sic]. It is simply, as Marceau J. states, a management rights clause. I find it impossible to read section 7 as precluding the respondent’s right voluntarily to agree to include such a cap clause on teaching hours in a collective agreement, as it has freely chosen to do on all previous occasions. Any other interpretation would deprive not only the applicant, but also management, of its rights.

The simple issue is whether, having since the inception of collective bargaining in the Public Service voluntarily agreed to a cap clause, presumably as part of the overall bargain, the government can get free of the clause merely by the running out of the collective agreement when all clauses of that agreement “that may be bargained for” are statutorily stated to be continued until the new collective bargain is struck. I can find no justification in either statute or policy to permit the employer so easily to escape its voluntarily assumed obligation. The government, like the union must take the inconveniences of collective bargaining along with its advantages. If it considers the inconveniences harmful to the public interest, it has, unlike other employers, a remedy at hand through Parliament.

...

 

[85] The respondent recognized that at first glance, the FCA appeared to make contradictory statements about s. 7: in PSAC Language Teachers 1, it stated that it is an untouchable prerogative, but in PSAC Language Teachers 2, the FCA described it as just a management-rights clause. The point underlying both, it argued, is that absent a freely negotiated agreement to amend its rights, s. 7 means that the Treasury Board retains the right to assign duties and classify positions. All the FCA did is establish that the freeze provision governs previously negotiated collective agreement language.

[86] The NPF argued that whether or not the term and condition was previously negotiated makes no difference to the enforcement of the freeze provisions. In PSAC Language Teachers 2, the FCA rejected the idea that s. 7 could be used to escape the enforcement provisions in the Act. PSAC made a similar argument, stating that the FCA’s decision marked the beginning of a reconceptualization of the employer’s rights under s. 7. Those rights are analogous to management rights within a collective bargaining relationship, it argued, which is a principle borne out by the case law that followed.

[87] In Depot 1, I found that PSAC Language Teachers 2 was an important case in establishing that the employer could freely negotiate provisions affecting the assignment of duties. But it does not definitively answer the question of the term and condition of employment at issue in this case.

[88] In 1988, the Federal Court held that s. 7 restricted the content of what a conciliation board could entertain as proposals for inclusion in a collective agreement (see Professional Institute of the Public Service of Canada v. Canada (Attorney General), [1988] F.C.J. No. 948 (T.D.)(QL)(“PIPSC Biologists”)). The respondent argued that this case preserved the employer’s right to assign duties and classify positions.

[89] I do not find that PIPSC Biologists is helpful in answering the question of the application of s. 7 in the context of the present complaint or in defining the term or condition of employment at issue. It applied the PSSRA, which contained different provisions outlining the mandates of conciliation and arbitration boards than are found in the current Act (now called public interest commissions and arbitration boards). As opposed to the current wording of the Act, the provision at issue in PIPSC Biologists, s. 70(1) of the PSSRA, did not outline restrictions on conciliation, rather it defined the specific issues that a conciliation board could deal with. The issue in PIPSC Biologists was whether the specific wording of a proposed clause was related only to rates of pay (which was one of the issues listed as arbitrable under s. 70(1)) or whether it related to the classification of positions (which was not one of the issues listed as arbitrable under s. 70(1) and where s. 7 became relevant). The current arbitral provisions of the Act do not require the same resort to s. 7 for interpretation. As I wrote in Depot 1, at para. 137, the restrictions on what can go into an arbitral award for this bargaining unit are found at s. 238.22(1)(c), which states that no arbitral award can affect the organization of the public service or the assignment of duties or the classification of positions in the public service. This restriction is not found in the section of the Act governing public interest commissions (s. 177(1)). Quite simply, PIPSC Biologists no longer represents the current wording of the Act and, in my view, is not helpful in answering the questions at issue in this case (see also, for example, Public Service Alliance of Canada v. Canada (Attorney General), 2015 FC 55 at paras. 32-39, which found that the restrictions on the content of arbitral awards is made at s. 150 of the Act, not s. 7).

[90] The respondent argued that the Federal Court affirmed the Treasury Board’s unrestricted authority to classify positions under s. 7 of the Act in Peck v. Parks Canada, 2009 FC 686. The Court found that an employer under the Act “... may do anything within its wide grant of statutory authority as employer that is not specifically or by inference restricted by statute” (at paragraph 37). That case is distinguishable, in my view, on the basis that it was not a freeze situation; it was a judicial review of an employer’s classification decision. It did not consider the interaction between s. 7 and other portions of the Act.

[91] The next case raised by the parties that did address reserved management rights in the context of a freeze matter was the 2013 FCA decision in Library of Parliament v. Canadian Association of Professional Employees, 2013 FCA 237 (“Library of Parliament”). The legislative provision at issue was in the Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 (2nd Supp); “the PESRA”) at s. 5(3), which reads as follows and is almost identical to s. 7 of the Act:

5(3) Nothing in this Part shall be construed to affect the right or authority of an employer to determine the organization of the employer and to assign duties and classify positions of employment.

 

[92] As the bargaining agent, the Canadian Association of Professional Employees had made a freeze complaint when the employer replaced its guidelines on layoffs with a new workforce adjustment policy during the period of a bargaining freeze. The Library of Parliament argued that the freeze condition in the PESRA did not apply, given s. 5(3).

[93] The FCA concluded that because the terms or conditions set out in the guidelines could be incorporated into a collective agreement, they earned protection under the statutory freeze, despite s. 5(3) of the PESRA (see paragraphs 27 to 34, paragraph 32 in particular).

[94] The NPF argued that the FCA’s ruling in Library of Parliament clearly established that the freeze provision applies if a term or condition of employment could be incorporated into a collective agreement. Since the Board already ruled in Depot 1 that question #4 was met, the NPF says that the only issue to be addressed is whether the term and condition actually existed.

[95] The respondent argued that although the Library of Parliament’s guidelines were not in a collective agreement, they were still terms and conditions that had been voluntarily established by being issued as guidelines. It distinguished that from the situation in this case, in which the RCMP never promulgated a written guideline assigning APS facilitation duties to regular members.

[96] Next, in three related decisions, Professional Institute of the Public Service of Canada v. National Research Council of Canada, 2014 PSLRB 57, 58, and 59 (“National Research Council”), the Board considered the interpretation of s. 7 in a bargaining freeze situation. The employer in that case had voluntarily agreed to a collective agreement clause requiring it to advertise vacant positions. In a subsequent round of bargaining that ended in an impasse, that employer applied to have the clause rescinded from the collective agreement on the grounds that the clause encroached on its authority under s. 7. The Board declined to make the order and concluded that the employer remained bound by the clause by virtue of the bargaining freeze provision in the Act (s. 107). The respondent argued that this case was of limited assistance to the complainant because the employer in it had voluntarily agreed to the clause at issue.

[97] The respondent argued that the Board upheld the idea that s. 7 takes precedence when an employer has not voluntarily relinquished rights, in Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence), 2014 PSLRB 51 (“Dockyards East”). In that matter, the bargaining agent had filed a group grievance alleging that the employer had violated the recognition clause of the collective agreement when it assigned sea trial duties to employees in other bargaining units. It argued that that employer created the classification system and was bound to abide by it and that the occupational group description, tied to the description of the bargaining unit, mentioned sea trials. The employer had argued that s. 7 of the Act preserved its right to assign duties and classify positions and that the wording of the certificate did not entitle the bargaining agent to a proprietary interest over the work of bargaining unit employees.

[98] The Board denied the grievance and in doing so spoke as follows at paragraph 70 to the broad interpretation of s. 7:

70 Sections 7 and 11.1 of the FAA and section 7 of the PSLRA give the employer broad management rights. In particular, those sections grant the employer the right to organize the public service, allocate resources and assign duties. Clause 5.01 of the collective agreement recognizes the employer’s management rights and expressly acknowledges the employer’s “... exclusive right and responsibility to manage its operation in all respects ...” and acknowledges that the employer retains all rights and responsibilities “not specifically covered or modified” by the collective agreement. No specific provision in the collective agreement limits the employer’s management right to assign bargaining unit work to non-bargaining unit employees. In my opinion, in the face of such clear management rights, an express prohibition in the collective agreement would be required to limit the employer’s right to assign work to non-bargaining unit members.

[Emphasis added]

 

[99] However, Dockyards East also did not involve a freeze complaint. It was about whether the Board’s definition of the bargaining unit, which follow the employer’s occupational group definitions, provide a protection of bargaining unit work that is enforceable under the collective agreement. The bargaining agent in Dockyards East sought to stop the employer from assigning sea trial duties to workers outside its bargaining unit. The implication of the Board’s decision was essentially this: if one wants a grievance about bargaining unit work to succeed, one must negotiate a collective agreement clause that protects bargaining unit work. This does not, in my view, stand for the proposition that s. 7 extends into the interpretation of the freeze provision of the Act.

[100] In Canadian Association of Professional Employees v. Treasury Board (Department of Public Works and Government Services), 2016 PSLREB 68 (“Parliamentary Translators”), the Board again considered the interaction between management rights and the freeze provisions in the Act. In that case, the employer altered its practice with respect to how the hours of work were scheduled for parliamentary translators during periods when Parliament was not in session. It argued that it had the right to change work schedules before notice to bargain was served and that all it had done was exercise that right.

[101] The Board rejected that argument. It also explained the purpose of the freeze provision in s. 107 of the Act, stating the following at paragraph 126:

126 According to the Act and case law, the purpose of a statutory freeze is to ensure that the parties are on an equal footing throughout the negotiations by preventing the employer’s position from being unilaterally imposed on the conditions to negotiate, which would undermine the bargaining agent’s exclusive representation rights. The goal is to promote labour peace. The relationship between the employees and the employer, as it existed at the time of bargaining, is protected in its entirety. That protection lasts until the collective agreement containing the condition is concluded, an adjudicator’s decision is rendered, or a legal strike can be declared or authorized.

 

[102] The decision in Parliamentary Translators quotes from an earlier case of the Board, Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46 (“CBSA Union Leave”), which concerned the termination of a leave-with-pay arrangement for certain union officials. The unwritten arrangement allowed a few specific officials to perform union duties full-time on a leave with pay basis. The employer in that case had notified PSAC that it would end the arrangement during the s. 107 freeze period. The Board found for the complainant on the basis that the purpose of the statutory freeze was to maintain the prior employment relationship practice in its entirety. The Board then underlined that principle at paragraph 130 of Parliamentary Translators as follows:

130 Once a party serves notice to bargain, the freeze imposed by s. 107 of the Act requires that the parties respect each term and condition of employment that applies to the employees from the bargaining unit subject to the notice and that was still in force when notice to bargain was served. That term or condition must be one that could be included in a collective agreement and not one that is necessarily already included in one.

[Emphasis added]

 

[103] Finally, after considering the employer’s argument that its residual management rights under the Financial Administration Act (R.S.C., 1985, c. F-11; “the FAA”) allowed it to make the changes it did, the Board rejected it at paragraph 137 of Parliamentary Translators as follows:

137 Accepting that argument would render the protection conferred under s. 107 of the Act meaningless and could lead to an absurd interpretation of the Act. Therefore, it would mean that there could never be a violation of the freeze provided for under the Act by virtue of the very existence of the employer’s residual powers. As established by case law, that was not Parliament’s intent. The purpose of the protection is to ensure orderly and equal bargaining between the parties and peaceful labour relations during the statutory freeze. Such an interpretation would allow the employer to take action that could destabilize this relationship and, consequently, violate what s. 107 seeks to protect.

 

[104] While Library of Parliament found a freeze violation in a context in which the employer had written guidelines in place, in Parliamentary Translators, the Board found that an employer practice (of allowing translators to modify their hours during Parliamentary breaks, while keeping a pay supplement) was also protected by the bargaining freeze.

[105] Similarly, the Board in another freeze complaint in Public Service Alliance of Canada v. Treasury Board (Correctional Service of Canada), 2017 FPSLREB 11 (“Correctional Services/Hours of Work”), determined that even in the face of collective agreement language giving the employer a right to assign hours, it had to evaluate past practice to determine whether a freeze violation took place. The employer in that case had reduced the hours of work for approximately 50 term employees from full-time to part-time (4 days a week) during the freeze period. It had argued that the collective agreement allowed it to make the change, by virtue of a clause that stated, “Nothing in this Article shall be construed as guaranteeing minimum or maximum hours of work” (as quoted at paragraph 85 of the decision). After undertaking a broad survey of the case law, the Board rejected the idea that the employer’s discretion to make changes was the term and condition that was frozen as follows, at paragraphs 99 and 102:

99 In other words, although it had the authority to reduce hours of work, it had established over time a pattern of not doing so in the case of the affected employees. Therefore, the affected employees and the complainant had an expectation that the employer would not reduce the hours after the notices to bargain were given. I find that this expectation was reasonable in the circumstances.

...

102 With respect, I do not find that there is any difference in the way labour boards determine freeze complaints depending on whether the term or condition of employment involved is found in a collective agreement or may be included in one but was not when notice to bargain was given.

 

[106] The Board’s 2019 decision in Sudbury Tax Centre also found that the freeze provision takes precedence over rights to manage the workplace permitted in a collective agreement, stating: “To permit the employer to keep using its managerial powers as if nothing had changed would, when all is said and done, be to allow the employer to do that which the law is actually meant to prohibit” (at paragraph 170, quoting Wal-Mart, at para. 49).

[107] Looking broadly at this case law, the respondent argued that a few key principles can be gleaned about the meaning of s. 7 of the Act. First, from the case law about the scope of an arbitral award, the employer may voluntarily agree to collective agreement language related to matters listed in s. 7, but such provisions may not be imposed (e.g., PSAC Language Teachers 1). According to the respondent, the Board has upheld freeze complaints in situations in which an employer voluntarily agreed to give up its rights (see PSAC Language Teachers 2, and National Research Council) or has established a clear written policy (see Library of Parliament). However, absent an express prohibition in the collective agreement, the employer’s s. 7 rights are maintained (see Peck, Dockyards East, and PIPSC Biologists).

[108] The respondent argued that there is no Board jurisprudence upholding a freeze complaint in the absence of a clear agreement from the employer to relinquish rights.

[109] I do not think that the respondent’s arguments are sustainable in light of the jurisprudence as a whole, and I agree with the submissions about the case law made by the complainant and the intervenor. I find that the FCA and the Board have consistently found that management rights can be circumscribed by the freeze provisions in the Act. The freeze provisions are to be given a broad interpretation and an applicable term or condition of employment can be determined to exist, for example, in employer guidelines (see Library of Parliament), past practice (see CBSA Union Leave and Parliamentary Translators), or even in past practice when the management right is captured in a collective agreement (see Correctional Services/Hours of Work and Sudbury Tax Centre).

[110] The respondent had no specific response to the Board’s decisions in CBSA Union Leave, Parliamentary Translators, or Correctional Services/Hours of Work.

[111] In those cases, when determining question #1 at stage #1 of the statutory freeze analysis (whether a term and condition of employment existed when the freeze began), the Board’s analysis was focused on the employer’s past practices. Both CBSA Union Leave and Parliamentary Translators concerned unwritten practices, the existence of which could be determined only by examining past practice. The matter in Correctional Services/ Hours of Work concerned practices that management had put into place, and the freeze complaints were upheld even in the context of collective agreement language that gave management the right to make such changes. In those decisions, the Board recognized that a term and condition of employment can take the form of a unilateral exercise of management authority, but that that exercise of management authority can nevertheless be a term or condition of employment capable of being embodied in the collective agreement. The freeze provision does not freeze an employer’s discretion to make changes to terms and conditions of employment continued in force by the freeze provision; rather, it restricts that discretion so that the employer may make changes only if the change is part of an established pattern (see CBSA Union Leave at para. 186; Parliamentary Translators at paras. 127-145; and Correctional Services/Hours of Work at paras. 96-103). As such, the determination of the merits of the complaints in CBSA Union Leave, Parliamentary Translators and Correctional Services/Hours of Work came down to the business-as-before analysis.

[112] The NPF and PSAC argued that since the Board determined in Depot 1 that a collective agreement can contain a term and condition of employment restricting APS facilitation duties to regular members, I have already answered the question of what term and condition of employment is at issue. I should then proceed to answer whether the change in the assignment of duties to public service employees was consistent with business as before.

[113] While ultimately, I accept that conclusion, I need to acknowledge that none of the cases cited thus far touches on matters that fall quite so directly into the management rights listed in s. 7 of the Act as this matter does. PSAC Language Teachers 2 concerned a cap on classroom teaching hours. Library of Parliament concerned a change from employer guidelines on layoffs to a new workforce adjustment policy. Parliamentary Translators concerned a change in the hours of work. CBSA Union Leave concerned a leave-with-pay practice that existed outside a collective agreement. Correctional Services/Hours of Work concerned a reduction in hours of work for full-time employees. Sudbury Tax Centre concerned employee access to variable hours of work. Arguably, none of these touches quite so directly as this complaint does on the three specific areas of management rights listed in s. 7: the organization of the federal public administration, the assignment of duties, and the classification of positions. This is part of what the respondent argued when it said that none of the case law addresses the relationship between ss. 7 and 56 of the Act.

[114] However, it is not so with the two cases from the New Brunswick public service cited by the complainant: C.U.P.E. v. New Brunswick (Treasury Board), 1984 CarswellNB 449 (“CUPE School Bus Drivers”), and C.U.P.E. Local 1190 v. New Brunswick (Board of Management), 2004 CarswellNB 632 (“CUPE Highway Superintendents”). Both decisions address a provision in the New Brunswick Public Service Labour Relations Act (R.S.N.B. 1973, c. P-25; “the NBPSLRA”) that is patterned after the federal legislation, as follows: “6(1) Nothing in this Act affects the right of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.”

[115] In CUPE School Bus Drivers, the union alleged that a change in classification for some school bus drivers occurred during a freeze period. Ultimately, the New Brunswick Public Service Labour Relations Board (“the NB Board”) found that not to be the case, concluding that the employer had only corrected a classification error and had not changed a term or condition of employment. However, the NB Board overruled the employer’s objection under s. 6(1) of the NBPSLRA, finding that “... the assignment of employees to a job classification is a term or condition of employment and the Employer is not completely free, during the freeze, to make classification and assignment changes” (at paragraph 20).

[116] Some 20 years later, in CUPE Highway Superintendents, the employer had created a new job classification, titled “Transportation Highway Superintendent”, to replace a position titled “Transportation Maintenance Superintendent”. The change resulted in those employees being removed from the Canadian Union of Public Employees (CUPE) bargaining unit and placed into a bargaining unit represented by another union. CUPE made a freeze complaint. The employer argued that the NBPSLRA freeze provision should not be interpreted to impact its inherent right to classify positions, as outlined in s. 6(1). The NB Board rejected that argument at paragraphs 39 and 40 if its decision, as follows:

39 As has been determined by the Board, the assignment of individuals to another classification has been determined to be a change in the terms and conditions of employment and the employer is not “completely free” to do so during the “freeze period”. There is no better time than during collective bargaining for the parties to discuss, negotiate, clarify and resolve issues.

40 The Board concludes that if the employer is allowed to assign employees from one bargaining unit to another with impunity, this could create havoc in the work place which would create just the opposite to the stable foundation for collective bargaining that is intended by the legislation.

 

[117] The complainant also cited three decisions of the OLRB in which it determined that classification changes cannot be made during the bargaining freeze period provided for in the Ontario Labour Relations Act (1995, S.O. 1995, c. 1, Sched. A); they are London & District Service Workers’ Union, Local 220 v. Rest Haven Nursing Home of St. Williams (1974) Ltd., 1979 CarswellOnt 1170; C.U.P.E., Local 1320 v. Scarborough Centenary Hospital Assn., 1978 CarswellOnt 1139, and Ontario Nurses’ Association v. Oakville Lifecare Centre, 1993 CanLII 7909 (ON LRB)(“Lifecare”). Each of these decisions was resolved through a business-as-before analysis.

[118] I find the three OLRB cases less useful to the analysis in this case. They all stand generally for the proposition that classification changes can be subject to a freeze. The Lifecare decision in particular recognizes that employee expectations form a key part of a business-as-before analysis in such a freeze case. However, the OLRB was not wrestling with the kind of legislative provision as is s. 7 of the Act.

[119] However, the two CUPE cases out of New Brunswick are helpful. The legislative provision at s. 6(1) of the NBPLSRA is almost identical to s. 7 of the Act. The NB Board determined in both cases that the employer had to respect the freeze provision of the NBPSLRA, even when making classification changes. It found that it had to conduct a business-as-before analysis to determine whether the employer violated it.

[120] The respondent did not specifically counter the complainant’s arguments about the implications of the two New Brunswick cases and those out of Ontario, other than stating that they do not apply s. 7 of the Act. It relied on its assertion that no decision of the Board has made a determination about a freeze complaint in which the matter directly fell into one of the three areas of management rights in s. 7. It reiterated that s. 7 applies unless the employer has surrendered its rights by reaching a collective agreement.

[121] I find that the preponderance of the case law supports an approach that, for the purposes of a statutory freeze complaint, a term or condition of employment can be determined to exist based on, for example, employer guidelines and past practice. In the same vein, the case law also recognizes that a term and condition of employment can take the form of a unilateral exercise of management authority. For the reasons explained, the case law does not support the proposition that, absent a collective agreement, management rights are a frozen term and condition of employment such that the exercise of those rights may not result in a change to a term or condition of employment for the purposes of determining whether a freeze violation exists. Rather, the case law recognizes that, while an employer has the discretion to make changes to terms and conditions of employment continued in force by the freeze provision, the exercise of that discretion must be part of an established pattern. Next, I will consider the respondent’s arguments on the statutory interpretation of s. 7.

C. Section 7 of the Act: text, context, and purpose

[122] The respondent argued that the assignment of duties to public service employee positions and the classification of those positions at the AS-04 group and level fall squarely within the three areas of management rights listed in s. 7 of the Act and that the plain-language meaning of that section should exclude the application of s. 56.

[123] It argued that the language of s. 7 is clear and unequivocal, particularly as it starts with the words, “Nothing in this Act shall be construed as affecting the right or authority of Treasury Board ...” (emphasis added). In its view, this wording means that the complainant cannot use s. 56 to limit the employer’s right or authority to organize the federal public administration, assign duties, and classify positions.

[124] Although it did not frame its argument precisely as such, in essence, the respondent argued that the wording of s. 7 overrides other provisions of the Act when it comes to organizing the federal public administration, assigning duties, and classifying positions, in the absence of a decision by the employer to freely negotiate a limit to its authorities in these areas. It said that the Board should not interpret s. 56 to be paramount over s. 7 of the Act.

[125] The respondent argued that the employer’s actions in this matter were that it (a) changed the duties of the regular member APS facilitator job, (b) assigned them to a public service position, and (c) classified that position at the AS-04 group and level. At no time did the employer limit its rights and authorities to make these decisions, it said. It had not negotiated a collective agreement with the NPF placing a limit on its authority, and it had never issued guidelines or policies doing so. As such, no business-as-before analysis is required because the employer retained its discretion to change duties and classify positions.

[126] The respondent noted that the Treasury Board’s rights and authorities over human resources matters are not actually set out in the Act but are found at ss. 7 and 11.1 of the FAA. In addition, s. 20.1 of the Royal Canadian Mounted Police Act (R.S.C., 1985, c. R-10; “the RCMP Act”) affirms the Treasury Board’s authority as provided for in s. 11.1 of the FAA. Section 7 of the Act preserves certain specific rights that are set out for the Treasury Board in the FAA and the RCMP Act. It argued that finding that the term and condition of employment was a management right under s. 7 would be statutorily coherent with the FAA and the RCMP Act, as s. 7 contains clear and unequivocal language consistent with powers under those other Acts.

[127] The respondent argued that the complainant is attempting to use the statutory freeze process to confer a right that has not been gained through the give and take of collective bargaining. It is seeking to fetter the clear intention of s. 7, which permits the employer to organize its workplace.

[128] The respondent also argued that s. 7 was not modified when Part 2.1 was added to the Act. Part 2.1 contains the provisions that govern the certification, bargaining, and grievance rights of regular members of the RCMP. I will not report these arguments in detail as the complainant did not argue that Part 2.1 modified the application of s. 7.

[129] The respondent concluded its arguments in this area by citing the SCC’s ruling in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10 (“Canada Trustco”): “When the words of a provision [of an Act] are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process.”

[130] The complainant argued that s. 7 should not be interpreted in the manner argued by the respondent. It both disputed the plain-language interpretation of the section and argued that the Board should look at the text of s. 7 not only alone but also within the context and purpose of the Act as a whole. Such an approach is consistent with Canada Trustco, it argued, which at paragraph 10 went on to say as follows:

10 ... On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.

[Emphasis added]

 

[131] Looking specifically at s. 7, the complainant argued that the word “construed” is a synonym for “interpreted”. Therefore, s. 7 is to be engaged only if another provision of the Act is ambiguous. The freeze provision at s. 56 is not ambiguous, it argued, and therefore, s. 7 is not required to interpret it.

[132] The complainant also argued that when Parliament wanted to deliberately limit a right under the Act, it used the word “despite”. For example, s. 68 permits a bargaining agent to terminate a collective agreement “... despite anything contained in any collective agreement ...”. Section 70(3) prevents the Board from reviewing a bargaining unit structure when it states, “Despite subsection (1), the Board is not permitted to review the structure of the bargaining unit determined under section 238.14” (the section under which the bargaining unit now represented by the NPF was determined). Section 109(1) states, “Despite any other provision of this Part ...”, an employer and one or more bargaining agents may voluntarily bargain for a single collective agreement binding on multiple bargaining units.

[133] Citing Ruth Sullivan, in Sullivan on the Construction of Statutes, 6^th ed., at paragraph 8.38, the NPF argued that when legislators use different words, they should be interpreted as meaning different things. The NPF said that the respondent is asking the Board to treat the word “construed” as if it means “despite”. According to the complainant, had Parliament wanted to give s. 7 the meaning attributed by the respondent, it could have used the word “despite” to specifically indicate that the freeze provisions do not cover the terms and conditions listed in s. 7. Since it did not, the Board should not impose that meaning.

[134] In other locations where the Act uses the word “construed”, the Board has interpreted the provision in a manner inconsistent with the meaning the respondent is trying to give s. 7, the NPF said. For example, s. 120 reads as follows:

120 The employer has the exclusive right to determine the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided. Nothing in this Division is to be construed as limiting that right.

[Emphasis added]

 

[135] Section 120 is in the division of the Act that governs the administration of essential services agreements (ESA) for bargaining units on the conciliation-strike route. The complainant argued that in Public Service Alliance of Canada v. Treasury Board (Program and Administrative Service Group), 2010 PSLRB 88, the Board considered the employer’s argument that s. 120 limits the Board’s authority to rule on a document-disclosure issue relevant to an ESA issue. The Board found (at paragraph 168) that s. 120 did not stop it from applying principles of administrative law and due process when making a ruling that the employer was obliged to produce documents about the level of essential services to be provided. This was affirmed in Canada (Attorney General) v. Public Service Alliance of Canada, 2011 FCA 257 at para. 36, where the FCA said, “... the power under section 120 was not absolute and could not lawfully be exercised in bad faith or otherwise contrary to the Act.”

[136] The complainant made a similar argument about the wording of s. 211 of the Act, which reads as follows:

211 Nothing in section 209 or 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act ....

 

[137] The complainant argued that this provision has not prevented the Board from hearing any such grievance, such as one about a rejection-on-probation termination (see Alexis v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 9 at paras. 192, 193, and 210). Instead, it means that the Board examines whether the rejection on probation was done for a legitimate employment-related reason. The complainant maintained that the word “construed” in s. 7 should not act as a bar to the Board hearing a s. 56 complaint and granting a remedy under it for the same reasons that the word “construed” in s. 211 does not bar the Board from hearing a matter under it and providing a remedy.

[138] Furthermore, the NPF argued that despite the wording of s. 7, the Board has the power to make awards that affect the duties of public service employees; ss. 121(1) and 123(3) of the Act give the Board the authority to determine matters related to an ESA, including bundling duties. An interpretation of s. 7 that prohibits the Board from granting relief that affects the assignment of duties would be inconsistent with ss. 121 and 123. Similarly, s. 192(1)(b)(i) of the Act permits the Board to remedy an unfair labour practice by ordering the employer to return an employee “to the duties of their employment”. According to the NPF, the respondent’s argument about the meaning of s. 7 does not conform with that provision of the Act.

[139] The NPF also argued that the respondent’s interpretation of s. 7 of the Act would run counter to the purpose of the freeze provision at s. 56. The purpose of the pre-certification freeze provision is to prevent an employer from undermining an employee organization by changing terms and conditions of employment before its employees decide whether to select that organization as their bargaining agent. An employee organization is particularly vulnerable during a certification campaign and while negotiating a first collective agreement. The purpose of the statutory freeze is to protect an employee organization when it is most vulnerable to a loss of confidence among potential members of the bargaining unit. (Among the cases cited by the NPF, see Wal-Mart, at paras. 34 and 35; Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2016 PSLREB 26 at para. 47, citing Canadian Union of Public Employees v. Scarborough Centenary Hospital Association, [1978] OLRB Rep. July 679; and Bank of British Columbia v. Union of Bank Employees (British Columbia & Yukon), Local 2100, [1980] 2 Can L.R.B.R. 441 at paras. 7 to 23.)

[140] Finally, even if the Board were to accept that ss. 7 and 56 conflict with each other, the rules of statutory interpretation should lead it to conclude that s. 56 prevails, argued the NPF. It cited Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14 at paras. 47, 58, and 61, for the principles that the more recent law prevails over the earlier law and that the special law prevails over the general. Section 7 was incorporated into the PSSRA when it was first enacted in 1967; s. 56 was written into the Act only in 2005. As s. 56 came later, it should prevail. Secondly, as s. 7 is a more general provision governing the Act as a whole, the more specific rule in s. 56, providing for a freeze on terms and working conditions during a specific period, should prevail.

[141] The intervenor did not make extensive arguments about the textual analysis of s. 7; it generally argued that the case law should determine the Board’s decision. However, PSAC did argue that if the respondent’s interpretation of s. 7 were to prevail, an employer would be free to reclassify positions in order to deliberately undermine a certification process.

[142] I will now turn to my assessment of these arguments.

[143] The respondent argued that the plain text of s. 7 means that a s. 56 freeze complaint cannot fetter its rights concerning the organization of the federal public administration, the assignment of duties, or the classification of positions. This is such a significant argument that it could well have been addressed as a preliminary question. It is, in my view, at least as significant a question as the issue addressed in Depot 1: whether the Act prevents the parties from including in a collective agreement a provision that restricts the facilitation of the APS program to regular members of the RCMP.

[144] The respondent’s argument is that s. 7 protects its rights and authorities in the absence of a decision on its part to voluntarily relinquish some portions of its rights. This is closely related to its argument on the Board’s jurisprudence, which is that absent an agreement to amend the employer’s s. 7 rights, the Board has not upheld a freeze complaint involving reserved management rights.

[145] While I cannot ignore the plain and clear language of s. 7, I have a number of difficulties accepting the respondent’s position.

[146] First of all, the respondent argued that the reserved rights in s. 7 are untouched unless it voluntarily negotiates them away in “the give and take” of collective bargaining. That argument might make some sense in the context of a bargaining freeze, but in the context of the s. 56 certification freeze, the NPF could not have bargained this issue. Between its certification application (on April 18, 2017) and its actual certification (on July 12, 2019), the NPF had no collective bargaining rights for regular members of the RCMP. Until certified, the NPF had no legal right to negotiate a collective agreement or to agree to the employer altering the terms and conditions of employment. Yet, the respondent repeated this argument several times, stating that a term and condition could have been negotiated reserving APS facilitation duties for regular members but that one had not been.

[147] Secondly, as I have already concluded, I find that the respondent is wrong about the direction of the Board’s jurisprudence. In case after case, the Board has determined that the existence of a collective agreement provision between the parties is not the determining factor in a freeze complaint, even one under s. 107 (the bargaining freeze). The Board has taken jurisdiction over, and has rendered relief in, many complaints with no “voluntarily negotiated” provision about the term and condition at issue: workplace layoffs (in Library of Parliament), leave with pay for certain union officials (CBSA Union Leave), the hours of scheduled work (in Parliamentary Translators), access to compressed hours of work (Sudbury Tax Centre), and the qualifications needed to obtain a promotion to the level of sergeant or staff sergeant (RCMP Promotional Rules).

[148] Third, the NPF made strong arguments that the interpretation of the meaning of s. 7 depends not only on text but also on context and purpose, including the context and purpose of s. 56. Having considered those arguments, along with those of the respondent, I find that the two provisions do not conflict and can be read and can function together in the scheme of the Act. In this regard, I find the decision of the majority of the SCC in Wal-Mart instructive.

[149] In that case, a Wal-Mart store in Jonquière, Quebec, closed it doors and terminated the contracts of employment of the approximately 200 employees who worked there. This occurred following the certification of a union as bargaining agent for those employees and during the negotiation of a first collective agreement. The union alleged that the dismissal of the employees constituted a change in their conditions of employment that violated s. 59 of the Quebec Labour Code, which provides that, from the filing of a petition for certification, an employer may not change its employees’ conditions of employment while the collective agreement is being negotiated without the written consent of the certified union. In upholding an arbitrator’s decision that the termination of the contracts of employment constituted a unilateral change that was prohibited by s. 59, it made comments about the legislative context, objectives and role of s. 59 of the Quebec Labour Code and its interaction with management powers that are apt in the interpretation of the Act as well.

[150] As the respondent argued, the wording of s. 7 of the Act is fairly precise and unequivocal. In English, it states that “Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board...” to determine the organization of federal public administration, assign duties to and to classify positions and persons. The French version of the provision does not contain the “construed” element and is arguably even more unequivocal: “La présente loi n’a pas pour effet de porter atteinte au droit ou à l’autorité du Conseil du Trésor...”. Like the other terms and conditions of employment that could be covered by this section, s. 7 of the Act makes clear that the assignment of duties is subject to the employer’s exercise of its management powers.

[151] In discussing that the term and condition of continued employment also includes the power of the employer to terminate the contract of employment, even in the context of a statutory freeze, the SCC stated in Wal-Mart, at paragraph 44, that “Section 59 does not change this factual and legal situation.”

[152] Similarly, nothing in the wording of s. 56 of the Act has the effect of removing or even completely freezing the employer’s rights under s. 7. Rather, s. 56 states that “...the employer is not authorized...to alter the terms and conditions of employment that are applicable to the employees and that may be included in a collective agreement...”. It circumscribes the employer’s discretion to proceed with alterations to certain terms and conditions of employment, for a certain period of time (as indicated in paragraphs 56(a) and (b)), and also provides for certain exceptions thereto (“...except under a collective agreement or with the consent of the Board...”). Section 56 in the French version of the Act also indicates that “...l’employeur ne peut modifier les conditions d’emploi applicables aux fonctionnaires...sauf si les modifications se font conformément à une convention collective ou sont approuvées par la Commission...”; and provides for the same applicable time period in paragraphs 56 a) and b).

[153] Again, in discussing the similar s. 59 of the Quebec Labour Code, the SCC in Wal-Mart stated at paragraph 47 that:

“...to avoid paralyzing the business, the section leaves the employer with its general management power, which survives the union’s arrival on the scene but is then circumscribed by the law. This power must be exercised [translation] “in a manner consistent with the rules that applied previously and with the employer’s usual business practices from before the freeze...”

[citation omitted]

 

[154] The majority of the SCC in Wal-Mart continued at paragraph 48 by stating that “...the employer cannot simply argue that its decision is consistent with the powers conferred on it in the individual contract of employment and by the general law before the petition for certification was filed.” Rather, the employer must “...continue acting the way it acted, or would have acted, before that date...” (Wal-Mart at para. 48, emphasis in the original). As discussed in the previous sections of this decision, this is also how the Board has consistently interpreted and applied the statutory freeze provisions of the Act.

[155] In the wording of s. 56 of the Act and in the corresponding analytical framework for statutory freeze complaints outlined earlier in this decision, the employer maintains its management rights. Therefore, I see no conflict in the application of both provisions. Such an approach is also consistent with the objectives of the statutory freeze. In Wal-Mart, the SCC stated that “...the purpose of s. 59 in circumscribing the employer’s powers is...to facilitate certification and ensure that in negotiating the collective agreement the parties bargain in good faith...” (at para. 34). The SCC also stated that “...the true function of s. 59 is to foster the exercise of the right of association...” (Wal-Mart at para. 36).

[156] Consistent with this right to association, s. 5 of the Act provides that: “Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.” Similarly, s. 56 is found in division 5 of Part 1 of the Act, entitled "Bargaining Rights" and under the heading "Certification of bargaining agents". The wording of s. 56 ties it to the application for certification. Once certified, an employee organization becomes the bargaining agent for the employees in the bargaining unit and can thereafter, enter into collective bargaining with the employer. There is a duty in the Act to bargain collectively in good faith (see ss. 106 and 110). With respect to collective bargaining and terms and conditions of employment, the Preamble to the Act also recognizes, among other things, that “collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment”; that “the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment; and that “the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes”.

[157] If I were to accept the respondent’s position, it would deprive s. 56 of much of its purpose. Again, as stated in Wal-Mart at para. 49, “to permit the employer to keep using its managerial powers as if nothing had changed would...be to allow the employer to do that which the law is actually meant to prohibit.” Rather, the applicability of both ss. 7 and 56 recognizes that, once it is notified of the application for certification, the employer is dealing with a new scheme of labour relations and it must take this new system into account in the exercise of its management powers (see Wal-Mart at para. 51).

[158] With respect to the above interpretation I take note of the respondent’s reply to PSAC’s argument that an employer would have the ability to reclassify positions in order to deliberately undermine a certification effort, if the respondent’s interpretation of s. 7 were to stand.

[159] The respondent’s reply was that an employer could not deliberately undermine a certification effort by reclassifying positions. If it did, it would be subject to an anti-union-animus complaint.

[160] The respondent did not elaborate on how such a complaint would be made, but the mechanism for one would normally be an unfair labour practice complaint pursuant to s. 186 of the Act. That section states that no employer, no person acting on behalf of an employer, or no officer of the RCMP shall “... participate in or interfere with the formation or administration of an employee organization ...”. In other words, had someone like A/Commr. Breton deliberately reclassified positions to interfere with the formation of the NPF, a complaint could be made under s. 186, and a remedy could be sought there.

[161] However, this conclusion would seemingly be undermined by the meaning the respondent is seeking to give to s. 7 of the Act. If indeed nothing in the Act is to be construed as affecting the rights of the employer to assign duties and classify positions, that conclusion logically would impact s. 186 as well as s. 56. As argued by PSAC, this is the logical extension of the textual interpretation of s. 7 the respondent is asking the Board to adopt.

[162] Of course, the respondent did not argue that s. 7 would override s. 186; it argued that an employee organization could file a complaint if an employer reclassified positions to undermine a certification drive. However, accepting this requires recognition that s. 7 is not paramount over the s. 186 provision that prohibits employer interference in the formation and administration of employee organizations and bargaining agents. This is the same conclusion I reach in relation to s. 56: it must be respected even if it engages the exercise of rights and authorities contained in s. 7.

D. Conclusion of the s. 7 arguments

[163] Neither the jurisprudence nor my interpretation of s. 7 leads me to conclude that the term and condition that was frozen on April 18, 2017, was exclusively the Treasury Board’s unrestricted right to assign duties or classify positions.

[164] The NPF argued that the term and condition of employment at issue in this complaint is the one described at paragraphs 6 and 136 of Depot 1, which is that all APS facilitation duties were performed by regular members of the RCMP. They argued this was of importance to RCMP regular members (see Depot 1, at para. 33). Regular members’ expectations were also addressed in Mr. Buckingham’s testimony. While acknowledging that the employer had civilianized some positions, he said that maintaining access to positions like the APS facilitation role was important to members, for career enhancement purposes. He said that the issue of civilianization is important to his membership, which is why the NPF is trying to address it both through this freeze complaint and at the bargaining table.

[165] Although it disputed the role of employee expectations at the second stage of the analysis (business as before), even the respondent acknowledged that employee expectations factor into question #1 at the first stage of the analysis. In fact, it was undisputed that prior to the freeze, all APS facilitators had been regular members.

[166] I find that the term and condition of employment at issue in this case is the assignment of APS facilitator duties. This term and condition of employment is subject to the exercise of the respondent’s discretion under s. 7 of the Act. However, prior to the making of the certification application, the respondent had exercised that discretion and assigned APS facilitation duties to RCMP regular members only. It maintained that practice for many years. By doing so it established a clear past practice. In accordance with the case law of the Board, this is sufficient to meet the test at question #1. The employer then changed the assignment of certain APS facilitator duties from RCMP regular members to civilian positions, during the freeze period, without seeking the consent or approval of the Board (questions #2 and #3). In Depot 1, I determined that the assignment of APS facilitator duties is capable of being included in a collective agreement (question #4).

[167] As such, I find that this complaint meets the principal elements of s. 56 of the Act. The only question remaining is whether the employer’s change was consistent with its business-as-before management practices.

V. The business-as-before analysis

[168] To review, a freeze complaint that meets the test at the first stage of analysis may still be dismissed if the change to a term and condition of employment was made consistent with the employer’s past management practices, or as stated by the SCC in Wal-Mart, at para. 55, “... in accordance with criteria it established for itself before the arrival of the union in its workplace ...” (citing Pakenham v. Union des vendeurs d’automobiles et employés auxiliaires, section locale 1974, UFCW, 1983 CanLII 3408 (QC TT)).

[169] In applying the business-as-before analysis, the parties differed with respect to the scope of the Board’s examination.

[170] The NPF argued that the Board should examine past management practice only with respect to the APS facilitators. It argued that this approach is consistent with how the Board and other labour boards have considered the past practices of management in considering a freeze complaint of this nature. For example, in CUPE School Bus Drivers, the NB Board considered the practice only with respect to the 17 drivers at issue, and in CUPE Highway Superintendents, it looked only at the past practice with respect to the specific positions at issue.

[171] The NPF also argued that the statutory freeze can apply even to individual employees, which was the result in Public Service Alliance of Canada v. Anishinabek Police Service, 2018 CanLII 81987 (ON LRB). In that case, the OLRB ruled that the purpose of the freeze provision is to preserve the employer-employee relationship in its entirety (at paragraph 75) and is “... not limited to the ‘pattern’ of employment practices” (at paragraph 76) but can even include a single employee’s termination of employment (which was the issue in Anishinabek).

[172] The respondent argued that the practice of civilianization across the RCMP should be considered. This is because the management practice at issue is broader than the one at the Depot: the case is about the employer’s authority to change employee categories vis-à-vis assignment of duties and classification during a freeze, which concerns the regular member category across the country.

[173] I acknowledge that the jurisprudence is full of examples in which the analysis of past management practice looks only at the precise group affected by the alleged change in terms and conditions of employment. The Board’s analysis in Parliamentary Translators examined business-as-before only in relation to the treatment of those workers; CBSA Union Leave reviewed only that department’s prior treatment of a handful of union officers; Correctional Services/Hours of Work surveyed business-as-before only in relation to the 50 or so employees who were converted to part-time, and Sudbury Tax Centre looked only at the past practices of the Canada Revenue Agency in one location. Neither Whistler Parking nor Victoria Parking considered employer past practice across the RCMP as a whole; the Board rejected those complaints purely on the basis of information specific to the parking situations in those two municipalities. The NPF’s citing of CUPE School Bus Drivers, CUPE Highway Superintendents, and Anishinabek is also instructive.

[174] However, in this circumstance, I conclude that it is appropriate to consider the RCMP experience as a whole. For one thing, at issue is a change in the status of five vacant regular member jobs — not five encumbered jobs. The case law cited by the NPF on this point dealt with a change to the terms and conditions of individual employees. While the evidence shows that in this case one employee retired as a regular member to take the civilian AS-04 position, it was not unilaterally imposed. The member made the choice to apply for that position. Other than that, no employee had a change in status because the RCMP created the AS-04 positions. While arguably, the civilianization of those duties means reduced access for some regular members to a rotation through the APS facilitator role, I was presented with no evidence about individual impacts. The respondent submitted that it’s authority to classify and assign duties to APS facilitators was unrelated to individual members or civilian employees, but in my view the fact the positions were vacant is relevant to considering how wide of a scope should be applied to the business-as-before analysis. In any case, in my view, it would be inappropriate to decide the issue without considering fully the employer’s evidence on its business-as-before practices across the RCMP as a whole.

[175] I will note at the outset that neither party argued that the Board should consider the process by which civilian members of the RCMP are being deemed public service employees, as part of the RCMP’s “Categories of Employees” initiative.

[176] Therefore, my business-as-before analysis considers the RCMP’s past practice when it comes to the civilianization of regular member duties or jobs.

[177] I will summarize the evidence under four subheadings and conclude with the presentation and analysis of the parties’ arguments.

A. Civilianization in 2012-2013

[178] Mr. Jay testified at length about an initiative that began in 2012 and that resulted in the civilianization of hundreds of regular member jobs. He was the author of a presentation made to the RCMP’s Senior Executive Committee (SEC) on June 1, 2012, on the subject. The civilianization plan was part of the RCMP’s response to the federal government’s Deficit Reduction Action Plan (DRAP), and it projected savings of approximately $9 million a year through the civilianization of approximately 325 jobs.

[179] Mr. Jay testified that while the DRAP was a key reason behind the civilianization plan he proposed, the other driving force was a shortage of front-line police officers. Normally, front-line vacancies are addressed through recruiting and training at the Depot, but the vacancy problem was so significant that the RCMP needed to look at whether it was properly using officers where it most needed them.

[180] Mr. Jay testified that the basic framework for the 2012 civilianization initiative was to consider whether a job required “a badge and a gun.” The RCMP also considered whether the job required police officer experience or expertise and whether that experience could be obtained by someone other than a regular member.

[181] The proposal made to the SEC in June of 2012 was to civilianize approximately 250 out of 640 jobs within human resources. Other jobs proposed for civilianization in 2012 included some in professional integrity (3 jobs of 37 considered), strategic planning (17 of 94), and the office of the chief financial officer (28 of 52). Other areas reviewed included public affairs (143 jobs reviewed) and internal audit (40 reviewed), but no proposals for civilianization were made for those areas during this first phase of the DRAP process.

[182] Of note, in the June 2012 proposal, it was recommended that the 87 facilitator jobs at the Depot be maintained by regular members.

[183] I will also note that when A/Commr. Breton was asked about that recommendation in cross-examination, he testified that he was not aware of it when he decided to approve the creation of the five AS-04 positions. He said that he became aware of it only before the hearing.

[184] In total, in June 2012, the SEC approved the civilianization of 256 jobs but asked for further review.

[185] A second round of proposals was presented to the SEC in March of 2013. Mr. Jay was also involved in developing this round. The presentation said that a target of 270 regular member jobs had been set. Mr. Jay’s document actually proposed the civilianization of 118 further jobs, in areas such as public affairs (media relations), client services/strategic planning, and specialized policing services (including informatics).

[186] Mr. Jay testified that most of the review process in 2012-2013 took place based on job codes but that the RCMP also considered re-bundling duties. He gave as an example a job code in specialized police services with 10 jobs, and the CO was able to civilianize 4 of the 10 by changing the distribution of duties.

[187] A/Commr. Breton testified that he also had some involvement in the civilianization of jobs in 2012-2013 when he worked as a career development learning officer at the RCMP’s national headquarters. The unit he was in civilianized five regular member jobs that did staffing work. The new civilian employees worked alongside regular members.

B. Staffing patterns across the RCMP as a whole

[188] Mr. Lavery provided testimony on overall staffing levels within the RCMP. He spoke to a table showing total staff of the RCMP over the years 1999 to 2021, broken into major categories (regular members, civilian members, and public service employees).

[189] Over that 22-year period, the proportion of total staff working as regular members declined from 65% to 56%. Over the same period, the proportion of staff working as public service employees increased from 22% to 33%.

[190] Mr. Lavery also testified about civilianization data from the RCMP’s HRMIS showing the direct conversion of regular member jobs. In the period from January 1, 2014, to September 16, 2019, a total of 32 regular member jobs were converted to public service employee positions (including the 5 at issue in this complaint). Another 28 regular member jobs were converted to civilian member status in this period. The total of 60 jobs subject to civilianization included 21 at the executive level, 17 in criminal intelligence, 6 in training, 4 in human resources, 3 in communications, 3 in “strategy/ops support”, and the rest in areas such as health services management, records, and risk/emergency planning.

[191] Mr. Lavery also testified about data showing indirect conversions, such as when a regular member job was deactivated as a result of civilianization and a link to the creation of a new public service employee position could be identified. In the period from January 1, 2010, to April 18, 2017, a total of 365 regular member jobs were deleted. Of them, 285 were directly cross-referenced with either a public service employee or civilian member position. Approximately half occurred in the years that coincided with the civilianization that resulted from the DRAP.

C. Civilianization in the RCMP’s northwest region

[192] Ms. Buchan testified about her personal experience with civilianization in the RCMP’s northwest region, for which she is responsible (which includes the Depot as well as Alberta, Saskatchewan, the Northwest Territories, and Nunavut).

[193] Like Mr. Lavery, she testified that sometimes, civilianization can happen through direct conversion — i.e., by converting a “box” in the organizational chart from regular member to either the civilian member or the public service employee category. Or it can happen indirectly, when the regular member box is deleted and a new box is created using one of the other categories.

[194] For the direct conversion, Ms. Buchan spoke to a chart for the period from August 2, 1996 (the start of the RCMP’s current HRMIS system), to August 1, 2020. It listed seven jobs at the Depot that she changed from regular member to public service employee status (of which five are the AS-04 APS facilitator positions) and six that were changed to civilian member status.

[195] Another data table listed direct and indirect civilianization events that Ms. Buchan was involved in from April 4, 2017, to March 19, 2021, either in Saskatchewan (“F Division”) or at the Depot (“T Division”). The total number of jobs permanently civilianized at the Depot during this period was nine (including the five APS facilitators). The total in F Division was four. In cross-examination, she spoke to these four, which included the jobs of Director, Communications/Media Relations, IC Division Informatics (a computer and radio electronics job), IC Strategy Planning (strategic planning related to contract policing), and Non-Medical Accommodation Advisor (an HR job dealing primarily with family status accommodation issues).

D. Other individual examples of civilianization

[196] Ms. Buchan testified that before 2014, the RCMP was able to use temporary civilian employees to fill some of its staffing needs at the Depot. When that ceased, it created civilian positions to facilitate the firearms and driving portions of the CTP. Ms. Buchan testified that she used the rationale for classifying the firearms position at the AS-04 group and level when considering classifying the AS-04 APS facilitator positions at that group and level. However, this does not appear to be an instance of civilianization. In fact, both Ms. Buchan and S/Sgt. Tremblay testified that at least one of the firearms instructor positions was converted back to a regular member job in 2020 when the RCMP was unable to staff it.

[197] Ms. Buchan testified about the civilianization of the operational conditioning unit training coordinator job, which oversees three regular members and five public service employees who provide cadets with fitness training. The classification action approving the creation of this role at the ED-EDS-02 group and level was made in March 2019.

[198] A/Commr. Breton testified about the possible civilianization of the cadet resource liaison role at the Depot, which was described as akin to a guidance counsellor for cadets. In September of 2018, he approved a work description that resulted in the duties of a corporal job being assigned to an AS-03 position. Both A/Commr. Breton and Mr. Buckingham testified about a discussion they had in August of 2020 on the civilianization of this position. By then, the NPF had been certified, and A/Commr. Breton said that he wanted its views on the proposal. The NPF opposed the idea, stating that it did not believe that a public service employee would have the experience required to occupy that role for cadets. The RCMP did not proceed with the civilianization of that position.

E. The complainant’s business-as-before arguments

[199] As noted, the complainant argued that the business-as-before analysis should focus only on the RCMP’s approach to the APS facilitator duties. It said that there was no evidence that a public service employee had ever performed the role before the start of the freeze. The duties had always been carried out by regular members who served on a rotational basis for three to five years.

[200] The NPF argued that this past management practice was confirmed in 2012 when the employer considered whether these jobs should be civilianized and decided not to. Mr. Jay testified that he made that recommendation on the basis of input from the CO of the Depot at the time. In other words, there is evidence that when management did discuss the civilianization of these jobs before the freeze, it decided against it.

[201] If the Board looks at civilianization within the RCMP as a whole, the NPF argued that there is no evidence of a past management practice in which duties like that of an APS facilitator were assigned to a public service employee position. In 2012-2013, civilianization was driven by the DRAP process. While Mr. Jay said that addressing front-line vacancies was also a factor in that civilianization process, A/Commr. Breton, S/Sgt. Tremblay, and Mr. Buckingham all testified that they understood that cost-cutting was the driving reason behind the 2012-2013 process.

[202] In terms of results, Phase I of the DRAP civilianization concentrated on jobs in human resources; Phase II focused on corporate services, strategic planning, finance, internal audit, and media relations. Most of these jobs were in headquarters and did not require operational police experience, the NPF argued. Furthermore, none of the examples of civilianization in 2014-2019 testified to by Mr. Lavery was similar in nature to the jobs at issue in this case. The jobs were either executive (outside the scope of this bargaining unit and therefore not relevant), criminal intelligence analysts, in human resources, or other clearly administrative jobs.

[203] The APS facilitator role is different from all other examples of civilianization entered into evidence, argued the NPF. Not only does the role require operational police experience, but also, the employer made it clear that it intended to recruit retired regular members for the five AS-04 positions. There is no past practice in which a regular member job of this nature was converted to civilian member status or to a public service employee position, it said.

[204] Furthermore, the NPF argued, there was no past practice of civilian employees working side by side with regular members and doing the same job, of which operational police experience was an essential part. Most prior civilianization was done by job codes (i.e., when the whole job was converted). When a hybrid approach was used, the jobs were always administrative in nature.

F. The respondent’s business-as-before arguments

[205] The respondent argued that civilianization was a consistent, long-standing past management practice before the NPF’s certification application.

[206] It noted the 2012 to 2013 civilianization process, which involved the conversion of hundreds of regular member jobs to public service positions. That process demonstrated that the employer maintained its right to classify positions and that it made use of that right.

[207] It argued that the decision not to civilianize the Depot instructors in 2012-2013 does not diminish the fact that widespread civilianization took place across many categories of jobs, beyond those in human resources.

[208] The overall process of civilianization was confirmed by Mr. Lavery’s testimony, which indicated that regular members declined as a percentage of all RCMP staff and that public service employees increased as a percentage, the respondent argued.

[209] In total, Mr. Lavery and Ms. Buchan introduced four business records that demonstrated that the civilianization of regular member jobs has occurred regularly since 2013.

[210] There was not enough evidence about the duties of these other civilianized positions to conclude they are of a different nature, the respondent argued. The job title and classification alone are not enough to make this conclusion. When asked in cross-examination about the nature of the job duties being performed in several positions, Mr. Lavery could not testify in detail about them. The Board should not rely on the job titles to conclude that the APS facilitator positions were significantly different in nature.

[211] Although it took the position that the reasonable expectation of employees is not part of the business-as-before analysis, the respondent argued that it was reasonable for employees to have expected the practice of civilianization to continue and to potentially include the Depot jobs. The fact that the complainant’s two witnesses did not know about the civilianization of regular member jobs outside the DRAP process does not establish a lack of reasonable expectation, given the number of jobs that were civilianized from 2012 onwards.

[212] The context for making the decision to civilianize jobs should not be a major factor, argued the respondent. The issue in this matter is the decision to civilianize, not the reasons for doing so. Nevertheless, the factors that influenced the 2012-2013 process were not restricted to cost-cutting. Mr. Jay testified that high vacancy rates in front-line positions were also a driving factor and that the process was designed to ensure the correct fit between duties and jobs. All these were also factors in the decision to civilianize the APS facilitator jobs. The business case developed for A/Commr. Breton mentioned program stability, the need for regular members in front-line jobs, and cost savings as factors in the decision. A/Commr. Breton’s goal was to ensure the proper fit between duties and jobs, which was consistent with how the RCMP has made its decisions about civilianization since 2012.

G. The business-as-before analysis

[213] In assessing these arguments, I am mindful that the burden of proof when it comes to the business-as-before analysis lies with the complainant (see Whistler Parking, at paras. 54 to 62, following Wal-Mart, at para. 54). No reverse onus is placed on the respondent.

[214] Therefore, it is up to the complainant to put forward its case as to why a particular change is not consistent with past management practice, and in response, the respondent can present its own evidence to contradict that of the complainant. The Board’s job is to weigh all the evidence and to reach a conclusion about whether the change made to the term and condition of employment was inconsistent with past management practice.

[215] Considering all the evidence I heard, I have concluded that this particular instance of civilianization was not in accordance with the RCMP’s business as before.

[216] There is no doubt in my mind that the RCMP has shifted toward a greater use of public service employees and a proportionately reduced role for regular members within its overall staff mix. The chart introduced by Mr. Lavery showed that 22 years ago, regular members comprised 65% of the total, while today, they represent only 56%. Over the same period, the proportion of employees working as public service employees increased from 22% to 33%.

[217] However, on reading that chart, I note that in only 3 of the 22 years did the number of regular members actually decline: in 2012-2013 (by 123), in 2013-2014 (by 196), and in 2017-2018 (by 6). In every other year, the number of regular members increased. Over the 22-year period, the total employee population of the RCMP grew from 23 151 to 38 149 (an increase of 65%). Over that period, the number of regular members rose from 15 065 to 21 435 (42%), while the number of public service employees rose from 5208 to 12 471 (239%). In other words, the chart demonstrates that the growth rate of public service employee positions has been much higher than that of regular members. This clearly indicates an increased use of civilian employees to do the RCMP’s work, but it is not evidence of widespread civilianization.

[218] The only part of that chart that demonstrates a significant reduction in regular member jobs and that correlates to increases in public service employees are in the two years (2012-2013 and 2013-2014) that overlap with the DRAP civilianization discussed at length by Mr. Jay.

[219] The DRAP civilianization was clearly significant — Mr. Jay’s presentations indicate that some 375 jobs were civilianized in the two parts of that exercise.

[220] There is also no doubt that the civilianization of particular jobs has also occurred since the DRAP. The testimonies of Mr. Lavery and Ms. Buchan about the four business records they introduced demonstrate this. Given that some of these business records overlap with the DRAP and each other, it is a little difficult to conclude exactly how many jobs have been civilianized since 2014. The most comprehensive list is the 2014-2019 table provided by Mr. Lavery, showing 60 instances of regular member jobs being replaced with either public service employee or civilian member positions. It is more than a rare occurrence.

[221] All these different processes of civilianization, including the APS facilitators, had some common elements. The assessment of whether the job can be done by a civilian is rooted in the analysis of whether it requires “a badge and a gun.” The need to retain regular members in front-line jobs to meet the RCMP’s contract policing requirements was also a common factor. So was the issue of cost reduction: although it was a more dominant issue in the 2012-2013 DRAP process, it was still a factor in A/Commr. Breton’s analysis of the APS facilitator duties.

[222] Furthermore, the evidence shows that management exercised its right to civilianize regularly. Ms. Buchan was personally responsible for confirming the occupational group of several civilian positions and the group and level of their classification. The respondent noted that among the witnesses who appeared before me, Ms. Buchan alone had the authority to make these determinations about the Depot civilian positions.

[223] At the same time, I note that Ms. Buchan’s role in certifying the classification of a civilian position was very much at the direction of management. The evidence for this involves several examples in which management decided to revert a civilian position back to a regular member job because it could not recruit a public service employee to take the position. For example, this was the case with one of the firearms instructor positions as well the two bilingual APS AS-04 positions that were eventually converted back to a regular member job.

[224] In my assessment, what distinguishes the APS facilitators from the other examples of civilianization is the uniqueness of the role and the uniqueness of having public service employees and regular members working side by side in a situation in which they both require an operational knowledge of policing to train recruits. While clearly, the AS-04 positions do not in and of themselves require “a badge and a gun”, both management and the NPF acknowledge that only current or former police officers can provide the instruction, run the APS scenarios, and monitor and evaluate the progress of recruits through the program.

[225] This was evidenced when management first announced the project, in May 2019, when it stated that it expected to hire retired regular members into the positions. A/Commr. Breton testified that management would also consider recruiting police officers from either provincial or municipal forces, but police experience was still required.

[226] The respondent argued that there was a necessary change in classification because the duties were changed and that only Ms. Buchan had the training needed to determine how the positions should be classified and at what level. However, the clear testimony from both S/Sgt. Tremblay and A/Commr. Breton was that the APS facilitators, whether public service employees or regular members, shared the same duties. The only distinction between them was that the regular members retained peace officer status and could, in cases of emergency, be called. No evidence was tendered to indicate that this is a significant portion of the actual duties.

[227] While not ignoring the considerable expertise of Ms. Buchan when it comes to occupational groups and classification standards, in considering how similar duties are between the two types of APS facilitators, I am persuaded much more by the testimony of those who know the program and the role intimately, A/Commr. Breton and S/Sgt. Tremblay. They both described the facilitation duties as identical for both regular members and civilian employees.

[228] No other example was provided to me showing that the RCMP decided to use a hybrid form of civilianization (with civilian employees working side by side with regular members) in which the program requires police experience. Mr. Jay testified that some hybrid approaches were used in 2012-2013 in specialized police services but did not provide specifics. A/Commr. Breton testified about a positive experience with the hybrid approach, but that was in a staffing role in which police experience was not an on-the-job requirement. All other forms of civilianization appeared to be on a job-code basis (i.e. all jobs using that code were civilianized).

[229] I am persuaded too by the NPF’s argument that the past practice of civilianization in the RCMP was concentrated in areas such as human resources, strategic planning, media relations, intelligence analysis, informatics, and related executive positions. While it is true that I was not presented with detailed evidence on the duties of these jobs, the job titles do provide an indication of their purposes. Despite the respondent’s argument that these jobs were similar to that of an APS facilitator, as noted above, the evidence was that the APS facilitator duties were unique in the sense that only current or former police officers can provide the instruction.

[230] I find it easy to distinguish the APS facilitator role from that of the operational conditioning coordinator at the Depot, which was civilianized at about the same time (also after the freeze had started). This was a supervisory role for the fitness training unit, comprising a few regular members and a number of public service employees. Nothing in the job description indicates a need for specialized police knowledge. The NPF did not make a freeze complaint about the civilianization of that position.

[231] Employees’ expectations about civilianization do not factor large in my assessment. Certainly, there was a reasonable employee expectation that some regular members could rotate through the APS role, but this case does not turn on that expectation. I also agree with the respondent that it would be reasonable for employees to know that more and more jobs within the RCMP were being staffed by public service employees. Ultimately, neither position is particularly helpful in determining the questions surrounding the civilianization of the particular duties in this case.

[232] In the case of the APS facilitators, the undisputed evidence was that during its most significant period of civilianization in 2012, RCMP management made a clear decision not to civilianize the role. This did not change until A/Commr. Breton approved the creation of the AS-04 positions in 2019. In the end, A/Commr. Breton admitted that he “wanted to try something new” when he decided to initiate the process of civilianizing a few APS jobs. He also testified that he knew that there was a freeze, he asked for advice about whether to proceed, and on the basis that the jobs were vacant, he decided to proceed.

[233] The purpose of s. 56 of the Act is to foster the exercise of the right to association (see Wal-Mart at para. 36). It requires that the employer not change how the business is managed at the time the employee organization arrives and maintains conditions of employment during the statutory period (see Wal-Mart at para. 37). Proof of anti-union animus is not a necessary factor in determining such a complaint and I have no reason to believe that A/Commr. Breton was malicious when he decided to proceed with the change at issue. But, for all reasons above, in my assessment, the choice he made represented a departure from the employer’s business as before and resulted in a violation of s. 56 of the Act.

[234] In reaching these conclusions, I am not saying that the RCMP is barred from the civilianization of duties during a freeze period. Each case will present its own circumstances. The APS facilitator role is a fairly unique circumstance with very specific past management decisions and practices as a key factor in my assessment.

[235] Neither am I making any judgement about the duties of the APS facilitator role or who should perform them. The parties may or may not address that in collective bargaining.

[236] My finding is restricted to the particular change imposed during the s. 56 freeze period in this case.

VI. Remedy

[237] The complainant proposed that if the Board determined the complaint founded, the following be ordered as remedy:

...

a) A declaration that the employer breached s. 56 of the FPSLRA;

b) A direction that the NPF and Employer meet, within 30 days from the date of this Order, to seek a resolution to this complaint;

c) A direction that this meeting may take place as part of the ongoing collective bargaining between the parties;

d) A direction that in the event this complaint is not resolved directly or in the context of collective bargaining then the Board remains seized of a final remedy in this complaint; and

e) A direction that the parties report to this Board about their progress in resolving this matter within ninety (90) days from the date of this Order.

...

[Emphasis in the original]

 

[238] In making these proposals, the complainant emphasized that it wished to work on a solution that does not impact the employment of the three public service employees now working in the AS-04 positions.

[239] The respondent objected to item (c) in the complainant’s list. It argued that the Board should not direct what subjects should be discussed in the collective bargaining process. It otherwise agreed that a remedy that does not impact the three employees is in the best interests of the parties, but that given the ongoing pandemic, 90 days may not be sufficient time.

[240] The intervenor said that it agreed with a remedial approach that encourages the parties to work out a solution that does not impact the employment of the three individuals in question.

[241] The parties agree with a broad approach to remedy in this complaint, other than item (c) in the complainant’s list and the time for which the Board remains seized. I see no reason to alter this broad approach.

[242] I understand that the NPF’s proposal in item (c) is that the parties may choose to address the issue in bargaining. I agree that they may choose that option, but I do not believe that that option has to be spelled out in my order. The parties may select that option if they so choose.

[243] I agree that 90 days may not be sufficient for the parties to work out a solution; if so, they may approach the Board for an extension.

[244] Both parties indicate a desire not to affect the employment status of the three employees hired into the AS-04 positions. I would advise them to consult with PSAC if the resolution impacts their status.

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

(The Order appears on the next page)

VII. Order

[246] I declare that the employer failed to comply with s. 56 of the Act.

[247] The parties are directed to meet within 30 days from the date of this order to seek a resolution to this complaint.

[248] The Board shall remain seized of this complaint for 90 days following the date of this order. The parties shall report back to the Board within those 90 days should they be unable to work out a resolution.

June 28, 2021.

David Orfald,

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