Date: 20220623

File: 569-34-40834

 

Citation: 2022 FPSLREB 54

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

 

Professional Institute of the Public Service of Canada

Bargaining Agent

 

and

 

Canada Revenue Agency

 

Employer

Indexed as

Professional Institute of the Public Service of Canada v. Canada Revenue Agency

In the matter of a policy grievance referred to adjudication

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

For the Bargaining Agent: Tony Micallef-Jones and Cheryl Owens-Carr, Professional Institute of the Public Service of Canada

For the Employer: Jena Montgomery, counsel, and Angela Bain, articling student

Heard by videoconference,

March 1 to 3 and April 11 and 12, 2022.

REASONS FOR DECISION

I. Policy grievance referred to adjudication

[1] This policy grievance addresses the question of which employees are entitled to receive a particular form of performance pay at the Canada Revenue Agency (“the CRA” or “the Agency”).

[2] The policy grievance was presented to the CRA by the Professional Institute of the Public Service of Canada (“PIPSC” or “the union”) on March 21, 2019. After the CRA denied the grievance, PIPSC referred it to adjudication on August 14, 2019.

[3] The clause in dispute is contained in the collective agreement between PIPSC and the CRA for the Audit, Financial and Scientific (AFS) bargaining unit, signed March 29, 2018, with an expiry date of December 21, 2018 (“the 2018 AFS collective agreement”). Clause 44.08 in found within the article titled “Pay Administration” (article 44) and reads as follows in both English and French:

 

[4] The focus of the dispute is the meaning of the eligibility criteria in clause 44.08, specifically that portion of the clause in English that references “... employees who perform Management Group (MG) duties ...”.

[5] The CRA has a unique classification standard applicable to some of its management employees called the Management Group (“the MG group”). Some employees classified MG are found within the AFS group represented by PIPSC. The AFS group also includes employees classified under the Audit classification standard (AU), the Computer Systems classification standard (CS), and as many as 12 other standards.

[6] Parenthetically, some CRA employees classified MG are also found in the Program and Delivery Services bargaining unit represented by the Public Service Alliance of Canada (PSAC), and some employees classified MG are excluded from collective bargaining altogether.

[7] Earlier versions of clause 44.08 can be found in collective agreements between the parties going back to as early as 2001. In this decision, the term “performance bonus clause” is used generically to refer to clause 44.08 and earlier versions of it, as the numbering system has changed over the years.

[8] PIPSC’s grievance challenges the long-standing interpretation given to clause 44.08 by the Agency, which is that employees must occupy a position in the MG group, on either an indeterminate or an acting basis, to be eligible for the performance bonus.

[9] PIPSC argued that the plain language of the collective agreement does not require employees to occupy an MG position; it only requires them to “perform Management Group (MG) duties”. It argued that other employees (such as those classified AU or CS) should be eligible to receive performance pay if they can establish that they have performed MG duties.

[10] Thus, the key issue in this matter is to determine what the parties meant when they negotiated the wording of clause 44.08. It turns significantly on the question of what it means to “perform Management Group (MG) duties”. Did the parties intend that the clause would apply only to employees occupying an MG position? Or did they intend that the words should apply to any employee, including those who do not occupy an MG position on either an indeterminate or acting basis?

[11] As will be seen in the reasons that follow, to a very large extent, the parties agreed on the principles of collective agreement interpretation to be applied in deciding this grievance. However, they took opposing views on the question of whether I should allow them to call extrinsic evidence related to the grievance.

[12] PIPSC argued that there is no ambiguity in the wording of clause 44.08 and that I should be able to decide the grievance without hearing any evidence.

[13] The CRA also argued that the wording of clause 44.08 is unambiguous, but it said that the Federal Public Sector Labour Relations and Employment Board (“the Board”) should hear evidence that provides context to how the clause was negotiated and how it has been applied. Alternatively, should the Board find the wording of the clause ambiguous, then the hearing of extrinsic evidence is required to determine the intentions of the parties when they negotiated the clause, it argued.

[14] This was not merely a question about the principles of collective agreement interpretation but one affecting the duration of the hearing. Therefore, at the commencement of the hearing, I asked the parties to provide their arguments on whether the Board should hear extrinsic evidence.

[15] After reviewing those opening arguments, I determined that I would allow the parties to call extrinsic evidence. I provided them with an oral summary of my reasons, which I have elaborated in the reasons that follow. I also told the parties that in their closings, I would welcome their arguments on what extrinsic evidence, if any, was relevant to my interpretation of the clause in question.

[16] My conclusion is that the language of clause 44.08 is to be interpreted in the way applied by the CRA. In other words, I find that to perform MG duties, as described in the clause, an employee has to occupy an MG position. This ruling considers the wording of the clause in both English and French, the wording of the collective agreement as a whole, relevant evidence about the negotiation of the clause when it first was included in the collective agreement in 2002, relevant evidence as to how it has since been applied, and relevant evidence about the way in which the classification system at the CRA operates. As such, the grievance is denied.

[17] I will note that in these reasons for decision, references to “the Board” include the Federal Public Sector Labour Relations and Employment Board and its predecessors.

II. Summary of the evidence

A. Introduction

[18] The summary of evidence that follows is based on witness testimony and documents entered as exhibits. Facts not in dispute are summarized without referencing the source. For any conflict in the evidence, I make specific reference to what I heard from different witnesses.

[19] It should be noted that when the Department of National Revenue was first given status as a separate agency, on November 1, 1999, it was called the Canada Customs and Revenue Agency (CCRA). Its name changed to the Canada Revenue Agency in December of 2003, when the customs portion of the CCRA was transferred to the Canada Border Services Agency. References in this decision to the CRA or the Agency will generally include the CCRA. In my introductions of the witnesses, time worked at the CRA includes the total time worked at the Department of National Revenue, the CCRA, and the CRA.

[20] PIPSC called a total of 7 witnesses. Their backgrounds are as follows:

· Réal Lamarche worked as a tax auditor (AU classification) at the CRA for more than 30 years before his retirement in June of 2007. With PIPSC, he served as the chair of the AFS group (PIPSC’s internal structure for members of the AFS bargaining unit) from approximately 1999 until 2006. Mr. Lamarche testified primarily about his involvement in the collective bargaining process.

· Shawn Gillis started working as a tax auditor for the CRA (AU classification) in 1997. With PIPSC, he joined the AFS group executive in approximately 2015 and served as a member of the bargaining committee. Mr. Gillis testified primarily about his involvement in the collective bargaining process after 2015.

· Mark Muench has worked in information technology (CS classification) at the CRA since 1997. With PIPSC, he is currently on the executive of the AFS group, serves as a union steward, and represents it on a joint union-management committee on performance management. Mr. Muench testified primarily about the performance management process and his involvement in collective bargaining after 2018.

· Jamie Dunn was a full-time PIPSC employee from 2003 to 2015 and is currently a part-time employment relations officer there. He was the lead negotiator for the AFS group from 2009 to 2015 and again on contract for a short period in 2016. Mr. Dunn testified primarily about his involvement in collective bargaining for the AFS group.

· Tawfik Said is employed as a classification officer with PIPSC. He previously worked as a research officer and was involved in bargaining for one AFS collective agreement in 2012. Mr. Said testified primarily about the MG classification standard and the classification process.

· Claira Mark started working as a tax auditor in 1992. She worked at the MG-5 level from approximately 2011 to 2015. In 2016, as a result of a workforce adjustment (WFA) process, she was reclassified to an AU-4 position of International and Large Business Case Manager (ILBCM). As of the hearing, she occupied an AU-6 ILBCM position. Ms. Mark testified primarily about the duties she performed in both the MG and AU classifications.

· Jon Eckler has worked as a tax auditor for more than 30 years. As of the hearing, he occupied an AU-6 ILBCM position. Before 2016, he acted in MG positions several times. Mr. Eckler testified primarily about the duties he performed in both the MG and AU classifications.

 

[21] The CRA called two witnesses. Their backgrounds are as follows:

· Peter Cenne started working at the CRA in 2000 as its lead negotiator and later served as its director of labour relations for several years, retiring from that position in 2016. Mr. Cenne testified primarily about the creation of the MG group and his role in collective bargaining between 2000 and 2016.

· Simon Teather joined the CRA in 2002 and works as a senior policy and programs analyst in the Agency’s organizational design and classification division. Mr. Teather testified primarily about the MG and AU classification standards and the classification process at the CRA.

 

[22] Documents submitted by PIPSC that were entered into evidence comprised 7 volumes in 32 tabs and included job descriptions, organizational charts, classification standards, a variety of emails, some individual and group grievance presentations and replies, and a few other documents. All the union’s documents were entered on consent.

[23] Documents submitted by the Agency that were entered into evidence include 7 collective agreements in English, 7 in French, many versions of the Agency’s guidelines or procedures on performance pay, a variety of emails, and a few other documents. This comprised 5 volumes in 48 tabs; the majority were entered on consent.

B. The certification process, and the commencement of collective bargaining

[24] Employees who transferred from the former Department of National Revenue to the Agency on November 1, 1999, enjoyed successor-rights protection under what was then called the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), which was later replaced by the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; now named the Federal Public Sector Labour Relations Act (“the Act”).

[25] Mr. Cenne testified that when he was first hired as a negotiator in the year 2000, he helped the Agency prepare for the certification process and collective bargaining. He testified that the Agency wanted to create a distinct occupational group and bargaining unit called the Management Group. The Agency’s bargaining unit proposals and those of the different bargaining agents were argued before the (then) Public Service Staff Relations Board (PSSRB).

[26] On December 12, 2001, the PSSRB released its decision on the establishment of new bargaining units at the CCRA (Canada Customs & Revenue Agency v. APSFA, 2001 CarswellNat 3971; “CCRA v. APSFA”). It denied the Agency’s application for a separate bargaining unit for the management group, including “team leaders” (at paragraphs 521 to 525). It also rejected a proposal made by PIPSC for a separate bargaining unit of computer systems employees (see paragraph 544), including them within the AFS bargaining unit it established, which PIPSC was certified to represent (see paragraph 546).

[27] The PSSRB’s decision also established what it called the Program Delivery and Administrative Services bargaining unit and certified the PSAC as the bargaining agent for it. This bargaining unit is now referred to generally (and in the reasons that follow) as the Service and Program Group (“PSAC-SP”).

[28] Of relevance to the issue in this grievance, the implication of the PSSRB’s decision in CCRA v. APSFA was that team leaders of AFS employees would be included within the AFS bargaining unit represented by PIPSC and that team leaders of PSAC-SP employees would be included within the PSAC-SP bargaining unit (see paragraphs 524 and 525).

[29] Despite the PSSRB’s decision, the CCRA proceeded to create a distinct classification standard for the MG group and to reclassify employees into it from the two bargaining units created by the PSSRB. Consequently, employees classified MG are now found in both the PIPSC and PSAC bargaining units.

[30] The Agency converted certain employees to the MG classification standard effective March 31, 2002.

C. The evolution of the performance bonus clause

[31] Before the release of the PSSRB’s decision, the Agency had concluded a first collective agreement with PIPSC for employees classified CS. That agreement was signed on August 10, 2001, with an expiry date of April 30, 2002 (“the 2001 CS collective agreement”). That collective agreement included a new article (designated as such by the two asterisks preceding it), which read as follows in both English and French:

 

[32] Mr. Cenne testified that this article was included in the 2001 CS collective agreement on a provisional basis. At the time that agreement was signed, the MG classification had not yet been finalized or populated.

[33] After the PSSRB’s decision was released in December 2001, the Agency and PIPSC proceeded to negotiate a first collective agreement for the new AFS bargaining unit. On June 13, 2002, the parties signed a memorandum of settlement agreeing to enter into a new collective agreement, pending ratification by their respective principals (“the June 2002 tentative agreement”). The tentative agreement established new pay rates for the MG group effective March 31, 2002, and contained the following provision (note that only an English version of this document was tendered):

...

New XX..XX, Performance bonus-management group (MG):

Add a new article which provides that: at the discretion of the Employer, employees who perform the duties of a position classified within the Management Group (MG) during the annual review period, shall be eligible, subject to the conditions established by the Employer, to receive a lump-sum performance bonus of up to five percent (5%) of the employees [sic] MG salary. This lump-sum performance bonus awarded to employees under this Article shall not form part of salary.

...

[Emphasis added]

 

[34] The tentative agreement was ratified, and the parties signed the resulting collective agreement on July 22, 2002, with an expiry date of December 21, 2003 (“the 2002 AFS collective agreement”). The collective agreement contained the following clause, found within the Pay Administration article, reproduced in both English and French:

 

[35] Mr. Cenne testified that the Agency negotiated a similar provision with the PSAC for MG employees in the PSAC-SP bargaining unit. However, rather than performance pay, the agreement with the PSAC resulted in a “performance leave” provision. He said that the purpose was the same: to reward effective people management.

[36] A second collective agreement between the parties for the AFS bargaining unit was signed on August 22, 2005, with an expiry date of December 21, 2007 (“the 2005 AFS collective agreement”). This collective agreement contained the following clause 45.08, found within the article on Pay Administration, and reproduced in both English and French:

 

[37] Subsequently, the parties reached four more collective agreements for the AFS bargaining unit:

· Signed on November 6, 2009, with an expiry date of December 21, 2011 (“the 2009 AFS collective agreement”).

· Signed on July 10, 2012, with an expiry date of December 21, 2014 (“the 2012 AFS collective agreement”).

· Signed on March 29, 2018, with an expiry date of December 21, 2018 (“the 2018 AFS collective agreement”). This is the collective agreement in effect when this policy grievance was filed.

· Signed on August 23, 2019, with an expiry date of December 21, 2022 (“the 2019 AFS collective agreement”).

 

[38] It is not disputed between the parties that the performance bonus clause was renewed without change in each of the collective agreements following the 2005 AFS collective agreement, except that starting with the 2009 AFS collective agreement, a general renumbering of the articles resulted in the clause being renumbered from 45.08 to 44.08.

[39] In this grievance, the key words in dispute are those setting out the eligibility criteria for the performance pay. At this stage, I wish to note the following points of distinction between the versions of eligibility criteria used by the parties in the different collective agreements, which were emphasized earlier in this decision:

· In the 2001 CS collective agreement, the English version used the words “... employees who perform the duties of a position classified within the Management Group (MG) ...”.

· This same wording was used in the June 2002 tentative agreement for the AFS group.

· However, in the 2002 AFS collective agreement, the English version read “... employees who perform Management Group (MG) duties ...”. In other words, the clause no longer contained the words “... the duties of a position classified within ...”.

· All subsequent English collective agreements also do not contain the words “... the duties of a position classified within ...”.

· In contrast, the French version of 2001 CS collective agreement used the words “... employés qui effectuent les tâches d’un poste classifié dans le Groupe de Gestion (MG) ...”, and those same words were used in the French version of the 2002 AFS collective agreement and in all subsequent collective agreements.

 

[40] I will also note two other language changes of note as the clause evolved:

· The 2002 AFS collective agreement version of the clause opened with the words, “Starting with the performance review period 2001 - 2002 ...” (and their equivalent in French); those words were not used in the preceding 2001 CS collective agreement or in the subsequent 2005 AFS collective agreement.

· In the 2001 CS collective agreement and the June 2002 tentative agreement, the performance bonus was to be calculated based on up to 5% of the employee’s MG salary; in the 2002 AFS collective agreement and all subsequent agreements, the bonus was to be calculated based on “... up to five percent (5%) of the employee’s salary of his/her substantive position on the last day of the annual performance period” [emphasis added].

 

D. The negotiations leading to the 2002 and 2005 AFS collective agreements

[41] Mr. Cenne testified in more detail about the negotiations that led to the wording in the performance bonus clauses. He was chief negotiator for the Agency for both the 2001 CS collective agreement and the 2002 and 2005 AFS collective agreements and a signatory to all three.

[42] Mr. Cenne testified that the Agency’s Board of Management wanted to create the MG group to emphasize the importance of people management. He said that the idea behind the MG performance bonus was to reward effective people management. He said that the performance bonus clause was included in the 2001 CS collective agreement on a provisional basis, to let employees know what the Agency was intending for the MG group. The clause did not come into force during the term of that collective agreement because the MG standard had not been activated, and no employees had been converted to the MG group.

[43] Once the PSSRB’s decision was released in December 2001, Mr. Cenne began negotiations with PIPSC for a collective agreement for the new AFS group. He testified that he made the proposal for the MG performance bonus. He stated that in his presentations to the PIPSC bargaining team, he presented the bonus as a way of reinforcing the role of the new MG classification, to encourage MG employees to exercise good people management skills by rewarding them. He stated that he made it clear that the clause applied only to the MG group and to no other employees.

[44] Explaining the difference between the wording in the English versions of the June 2002 tentative agreement and the 2002 AFS collective agreement, Mr. Cenne testified that the Agency wanted the clause to apply for the entire 2001-2002 fiscal year period, even though the MG group was populated only on March 31, 2002. He said that is why the performance bonus clause in the 2002 AFS collective agreement opened with the words, “Starting with the performance review period 2001 - 2002 ...”, and why the parties settled on the language “... employees who perform Management Group (MG) duties during the annual performance review period ...”.

[45] Mr. Cenne said that those words were chosen so that all employees converted to the MG group on March 31, 2002, would be eligible for the bonus for the entire 2001-2002 performance review period, because even though employees knew in advance that they would be converted to the MG group, their conversion became official only on March 31, 2002. The Agency wanted the clause to apply retroactively to the entire fiscal year. He said that the parties did not use the word “classified” in the English version of the collective agreement because they did not want the language to be interpreted in such a way that employees might receive the bonus only for the one day that they were actually classified MG. Mr. Cenne also testified that the wording of the clause was designed to ensure that employees acting in an MG position, as well as indeterminate MG employees, would be eligible for the bonus.

[46] Mr. Cenne testified that in negotiations for the 2005 AFS collective agreement, the parties agreed to remove the references to the 2001-2002 performance review period, as they were no longer needed.

[47] Mr. Cenne was asked why the French-language version of the clause refers to positions classified MG, as it reads “... employés qui effectuent les tâches d’un poste classifié dans le Groupe de Gestion (MG) ...”. He stated that the French version of the clause used in the 2002 AFS collective agreement appears to reflect the language used in the 2001 CS collective agreement. He testified that the parties negotiated the 2002 AFS collective agreement in English and that the parties should have amended the French version to reflect the English version. He stated that the French wording of the clause could have prevented some MGs from receiving the bonus. He described the difference between the English and French versions as an oversight. He said that the parties should have amended it to ensure that all MG employees, including those in positions on an acting basis, would be eligible.

[48] Of the witnesses called by PIPSC, only Mr. Lamarche testified about the negotiations that led to the June 2002 tentative agreement and the signing of the 2002 and 2005 AFS collective agreements. As chair of the AFS group, he was also the chair of the PIPSC bargaining teams and a signatory to both agreements.

[49] Mr. Lamarche testified that during the negotiations for the first AFS agreement, PIPSC initially refused to agree to the performance bonus clause because it wanted money for the bargaining unit as a whole. It did not want to agree to a provision that covered only a small portion of the bargaining unit. He recalled Mr. Cenne making presentations on the clause but did not recall hearing that only MG employees would be eligible. He said that he did not listen very carefully because the team did not support the provision; the PIPSC bargaining team agreed to accept the new clause only toward the end of negotiations, after it was satisfied with the agreement for the bargaining unit as a whole.

[50] As for the differences in language between the June 2002 tentative agreement and the 2002 AFS collective agreement, Mr. Lamarche testified that the tentative agreement was probably prepared the night before it was signed, while the collective agreement language would have reflected the agreement between the parties. As for the difference between the English and French versions of the collective agreement, he recognized a difference between the two wordings. He testified that the parties negotiated in English and that apparently, they did not compare the two versions.

[51] Mr. Lamarche remained chair of the AFS group for the negotiations of the 2005 AFS collective agreement. He did not recall any discussion of the clause other than the removal of the transitional language at the start of clause. In cross-examination, he acknowledged that he was aware that the Agency had developed guidelines about the application of the performance bonus, which focused on employees in the MG group. However, he denied that PIPSC accepted that the clause applied only to MGs; the words chosen provided that any employee performing MG duties was eligible. He said that PIPSC did not feel a need to propose a change to the clause because it was happy with the wording.

E. Subsequent bargaining, and the performance management clause

[52] After the 2005 collective agreement was signed, Mr. Cenne became the director of labour relations. He was no longer the chief negotiator but oversaw bargaining and until he retired in 2016, was directly involved in preparing the mandate given to the Agency’s chief negotiator. He was also responsible for the administration of the collective agreement and for providing direction to managers on its interpretation. He testified that his understanding was that the clause applied only to employees in an MG position on an indeterminate or acting basis. During his time at the Agency, he could not recall any conversations, either at the bargaining table or otherwise, in which PIPSC challenged that interpretation. During the 2009 and 2012 rounds of bargaining, Mr. Cenne testified that the clause was renewed without much discussion.

[53] Mr. Cenne testified that if the clause were broadened to include non-MG employees, it would undermine one of the major reasons for the creation of the MG group. He also suggested that if the clause were to apply to non-MG employees, it would have a significant cost. He said that the CRA does not have a budget to cover the application of this clause to non-MGs.

[54] Mr. Dunn testified about his involvement as chief negotiator for PIPSC in bargaining for the AFS collective agreements signed in 2009 and 2012, to which he was a signatory. He also testified about his role in a week of bargaining in 2016 for what would eventually become the 2018 AFS collective agreement, to which he was not a signatory. He did not recall any discussions at the bargaining table about the performance bonus clause. He testified that PIPSC did not make proposals to change it.

[55] In cross-examination, Mr. Dunn was asked if he understood that the clause applied only to MG employees and answered, “No.” He was also asked if he ever heard complaints that the clause only applied to MGs and answered “No.” He explained that as a negotiator, he would normally not be directly involved in the administration of the collective agreement, as that is normally handled by employment relations officers at PIPSC.

[56] Mr. Muench and Mr. Gillis testified about their roles in collective bargaining during negotiations for the 2018 and 2019 AFS collective agreements. Both sat on the AFS group executive and as members of the PIPSC bargaining team, Mr. Muench as a CS, and Mr. Gillis as an AU.

[57] During his testimony, Mr. Muench testified about an exchange of emails he had in June of 2017 with a human resources representative of the Agency. In the email, he asked why the Agency budgets only 3.25% of salary for the performance bonuses, while employees can receive up to 5%. He was told that employees in the MG group are eligible to receive between 0 and 5% and that 3.25% had proven to be a representative figure for budgeting. He said that he had written the email on behalf of an MG-6 employee who was concerned that the 3.25% figure was being applied as a cap because the employee felt deserving of the full 5%.

[58] Starting in 2018, Mr. Muench served as a representative of the AFS group on a union-management committee to discuss changes to the performance review process. He did not recall any discussions about eligibility for the performance bonus; the focus of the consultation was on the performance review process. He did not raise any concerns about eligibility for the bonus in the consultation process; he testified that he thought that the appropriate place to discuss eligibility was at the bargaining table. He testified that although he was aware that PIPSC had concerns about eligibility, he did not personally make any proposals to change the language and was not party to any discussions with the CRA about clause 44.08 for either the 2018 or 2019 AFS collective agreements. He said that as a CS, he did not perform MG group duties.

[59] Mr. Gillis was also involved in union-management consultations on the performance review process in 2018. He testified that the process focused on the performance review process and issues such as the timeliness of employees receiving feedback. He said that he was aware that some AU group members had filed grievances in 2016 about eligibility for the bonuses but that the performance review consultation process was not the appropriate place to raise those concerns. He was involved with the bargaining of the 2018 and 2019 AFS collective agreements, was a signatory to them, and did not believe that there were any discussions with the CRA about clause 44.08.

[60] As a research officer, Mr. Said was involved in the bargaining for the 2012 AFS collective agreement and was listed as signatory; he did not sign it as he was on holidays when it was signed. He did not recall any discussions or negotiations involving clause 44.08.

F. Classification standards, and job duties

[61] Both Mr. Said and Mr. Teather testified about the classification system at the Agency and about the MG classification standard in particular. Mr. Said testified from his experience helping members with classification questions and their classification grievances; Mr. Teather testified from his experience as a senior policy and programs analyst in the Agency’s organizational design and classification division. He also works on classification grievances, albeit from the Agency’s side.

[62] Both testified about two documents used in classifying MG positions. The first is the “Agency Classification Standard” for the MG group (the version dated January 2, 2007, but in effect after October 18, 2001). It sets out 16 elements used to rate jobs across the 4 major factors used in the standard (skill, responsibility, effort, and working conditions). One of the 16 elements is titled, “Leadership of Human Resources.”

[63] The second document is called the “Management Group Reference Tool” (“the MG Reference Tool”, this version also dated January 2, 2007). This tool helps users apply the MG classification standard. The MG Reference Tool includes the group definition, which reads as follows:

Management Group Definition

The Management Group consists of positions whose primary purpose is managerial. These positions arc considered part of the organization’s management team and are accountable for exercising managerial authority to accomplish the objectives of the organization. The Management Group is responsible for managing human resources, communicating and promoting the corporate values and culture of the Canada Revenue Agency, and for leading and managing change within the organization.

Inclusions

The Management Group includes positions that are responsible for the following functions:

· organizing staff and work to accomplish objectives, including scheduling staff as and when needed to meet operational requirements;

· developing and/or approving work plans, monitoring deliverables against plans, and taking action to meet established objectives;

· contributing to the development of staff competencies by developing and/or approving staff training plans for staff of own work unit, by acting as a coach and mentor, and by motivating staff; and

· dealing with human resources matters such as authorizing leave and overtime, setting objectives and evaluating performance, handling complaints and problems and disciplining staff.

Positions included in this group may also be responsible for the following:

· managing a budget;

· acting as a step in the grievance process;

· exercising other delegated human resources authorities; or

· representing the employer on union-management committees.

Exclusions

Positions excluded from the Management Group are those whose primary purpose is not managerial or whose primary purpose is included in the definition of another CRA occupational group.

 

[64] The MG Reference Tool goes on to offer this additional guidance when applying the Management Group definition:

...

To be included in this group, the focus of the job must be the management of people and, therefore, must involve supervision of employees, either directly or through subordinate supervisors.

The principal responsibilities of jobs in the Management Group include:

· leading and assigning work to employees on a regular basis;

· developing work plans and priorities on a day-to-day basis;

· evaluating performance against work plans;

· identifying and recommending other human resources needs such as the recruitment and training of own staff;

· providing technical advice and guidance to own staff; and

· authorizing leave and overtime.

...

 

[65] The MG Reference Tool provides additional information on how each of the 16 elements in the MG classification standard are to be applied. The reference tool includes appendices that set out the number of points a position can earn under each element of the standard and the minimum and maximum point boundaries for each of the 6 MG levels.

[66] Both Mr. Said and Mr. Teather confirmed that when applying a classification standard such as the MG group, one uses the job description of the position. The first step one must determine is whether the position is properly included in that occupational or classification group. In other words, for a position to be classified MG, it must meet the definition and guidelines set out in the MG Reference Tool. As such, the primary purpose of the position must be managerial, and it must include the four main functions listed in the definition (organizing and scheduling staff, developing and approving work plans, developing staff competencies, and dealing with human resources matters).

[67] Mr. Said testified that based on the content of the MG classification standard, human resources management is the most important element in the MG group. Each of the four bullet points listed under the inclusions portion of the group definition relates to human resources management. He testified that human resources management duties may also be found in other classifications, such as AU. He said that job descriptions list key activities, which he said are the same as duties.

[68] Mr. Said pointed to sections of the AU-6 ILBCM job description, which list among their activities “[w]ork with ... management ... in developing the regional work plan” and “[m]anage financial and human resources; administers various collective agreements and CRA policies; sets performance expectations, provides feedback and performance reviews and participates on staffing selection boards.” He testified that these key activities are also found in the list of MG duties in the group definition found in the MG Reference Tool.

[69] Mr. Teather testified that to allocate a position to the MG group, it would have to meet the primary purpose set out in the MG group definition. He testified that “MG duties” means duties performed by employees classified in the MG group. He said that supervisory duties are found in many of the legacy standards (i.e., such as AU and CS, which were imported from the Treasury Board when the Agency was created). The fact that supervisory duties are found in the MG group as well as under other standards does not make them “MG duties”. Few activities are “owned” by a single occupational group, he testified.

[70] Mr. Teather testified about the content of the AU classification standard currently in effect at the Agency (version dated September 1, 2014). The definition of the group reads as follows:

...

The Audit Group comprises jobs that are primarily engaged in the application of a comprehensive body of knowledge in specialized areas such as auditing and accounting.

Inclusions

Notwithstanding the generality of the foregoing, for greater certainty, the Audit Group includes jobs that have, as their primary purpose, responsibility for one or more of the following activities:

1. The application of a comprehensive knowledge of generally accepted accounting principles and auditing standards to the auditing of the accounts and financial records of taxpayers to determine their accuracy and reasonableness or to confirm the compliance of transactions with the provisions of statutes, regulations, etc.;

2. The planning, delivery and administration of external audit programs;

3. The examination and analysis of Scientific Research and Experimental Development claims, techniques, and technical processes to ensure conformity with prescribed sections of Canada Revenue Agency (CRA) legislation when determining eligibility for tax credit;

4. Supervision of any of the above activities.

Exclusions

Jobs excluded from the Audit Group are those whose primary purpose is included in the definition of any other group in the Canada Revenue Agency (CRA).

...

 

[71] He testified that if some employees classified AU do some duties that are also listed in the MG classification standard, the reason they are in the AU group is that their primary purpose is found in the AU group definition and that the supervision of other employees doing audit work is listed as an inclusion under point 4 of that definition.

[72] Mr. Teather also testified about the composition of the AFS bargaining unit. As of March 5, 2022, the unit included 15 829 employees. Of these, 1514 were classified MG (1295 substantively, and 219 acting). He testified that another 1122 non-MG employees have some supervisory duties. He said that the Agency is able to identify that number easily because its human resources system includes a “supervisory flag” to indicate which employees supervise other people.

G. Auditors and their management or supervisory duties

[73] Ms. Mark and Mr. Eckler testified about their duties as international large business case managers (ILBCMs).

[74] From 2011 to 2015, Ms. Mark worked as a specialized team leader, classified at the MG-5 level. She supervised auditors involved in auditing small and medium enterprises with international activities for potential abusive tax avoidance. In 2016, she was subject to a WFA process and accepted an AU-4 ILBCM position. In that role, she began to supervise a more diverse team of international and domestic auditors. Later, she was promoted to ILBCM positions at the AU-5 and AU-6 levels.

[75] Ms. Mark testified that in both her MG and her AU positions, she had to make sure that team members had the tools and training they needed to work on the files assigned to them. This involved orienting new employees and developing learning plans for them. She did significant mentoring and coaching in both her MG and AU roles, including setting performance expectations, providing feedback, approving leave, assigning work, and working with Human Resources on employee accommodation issues.

[76] As an MG-5, Ms. Mark supervised teams of about six members. As an AU-ILBCM, she has supervised teams of six to seven members. As an MG-5, Ms. Mark received performance bonuses for her work; she did not receive them while working at the AU-4 to AU-6 levels.

[77] As of the hearing, Mr. Eckler said that he had 8 years of experience working as an ILBCM at the AU-6 level. He had previous experience working on an acting basis at the MG-5 and MG-6 levels. He testified that as an AU-6 ILBCM, he establishes work plans for his unit and staff, conducts performance reviews, and meets with staff on a regular basis, to provide feedback. He testified that as an AU-6, he has had 6 direct reports. He approves their leave, travel, and any requests for overtime. He testified that he saw no differences between the supervisory duties he performed as an acting MG and those he performed as an AU, but he did testify that as an acting MG-6, he had up to 13 direct reports.

[78] Mr. Eckler testified that after the April 2016 WFA plan was announced, he and several other AU employees filed a group grievance about the performance bonus. He said that it had become evident that the duties they were being asked to perform as AUs after April 1, 2016, were the same duties they performed as MGs before the review. What changed was that they were no longer eligible to receive the performance bonuses. He said that they filed their group grievance because the language of the collective agreement does not talk about positions classified MG but refers to employees who perform MG duties.

[79] Mr. Eckler also testified about receiving an email in November of 2016 that contained an invitation to a learning event for the “MG Council.” The email was directed to “members of the MG Community”, which Mr. Eckler said includes MGs and what are called “MG equivalents”. The event included topics related to performance assessments, performance management, having difficult conversations, and employee selection processes. He was not an MG at the time. He also testified about a December 2017 learning event on “... Mental Health in the Workplace for Managers ...” to which he was invited. Finally, he also testified about a February 2019 invitation to a training session on union-management consultation that was made mandatory for all “... Union Representatives and MG/MG Equivalents.” He received that invitation even though he was not an MG at the time and did not hold a position as a union representative.

H. Performance review guidelines and policies

[80] The Agency has, over the years, published a number of policy documents related to the performance review process and the payment of performance bonuses (or in the case of the PSAC-SP bargaining unit, performance leave). From 2003 to 2010, these were called “Performance Pay and Leave Guidelines for the Management Group ...”.

[81] In the first version (April 2003) of these guidelines, the eligibility criteria are worded as follows: “The manager must have performed the duties of an MG position in a substantive, acting, or term capacity or an equivalent PE position.” For acting situations, the guidelines state, “The manager must have performed the MG duties for at least six consecutive months during the performance management review period.”

[82] In 2011, the guidelines were retitled, “Performance Pay and Leave Procedures for the MG Group and HR Equivalent Managers”. The eligibility requirement was stated as, “The manager must have performed the duties of an MG position or an equivalent HR position in a substantive, acting, or term capacity for at least six consecutive months during the performance management review period.”

[83] In 2016, the performance leave and pay provisions were incorporated into a document called “Procedures on Performance Management and Recognition”, which stated the eligibility requirement as, “... employees of the Canada Revenue Agency (CRA) who occupy and perform the duties of a classified MG position or an equivalent HR manager ...”.

[84] The version of this document in effect when the policy grievance was filed was the one dated April 1, 2018. In it, the eligibility requirement reads as follows:

...

Performance rewards apply to employees of the CRA who occupy and perform the duties in a substantive or temporary assignment of a classified MG position or an equivalent HR manager position that the CRA has deemed to be equivalent to MG positions....

...

 

[85] All the versions of the guidelines and procedures documents maintained the criteria that an employee had to act in an MG position for at least six consecutive months to receive performance pay.

III. Collective agreement interpretation, and the role of extrinsic evidence

[86] I turn now to the reasons I decided to hear the extrinsic evidence that the parties wished to call.

[87] The parties did not disagree on the basic principles to apply when adjudicating collective agreement disputes succinctly set out in Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at paras. 50 and 51, as follows:

50 I start with the trite but true observation that my authority as an adjudicator is limited to and by the express terms and conditions of the collective agreement. I can only interpret and apply the collective agreement. I cannot modify terms or conditions that are clear. Nor can I make new ones. The fact that a particular provision may seem unfair is not a reason for me to ignore it if the provision is otherwise clear ....

51 Second, I am obligated to determine the true intent of the parties when they entered into the collective agreement. To do that I must use the ordinary meaning of the words used by the parties. I must also take into account the rest of the collective agreement, for it is the overall agreement that forms the context in which the words used are to be interpreted ....

 

[88] However, as noted earlier, the parties differed on the role that extrinsic evidence should play in deciding this matter. PIPSC took the position that the Board should reject the introduction of extrinsic evidence. It suggested that I could rule on the grievance after receiving written arguments, without any need for oral evidence. It cited the general rule against the use of “parol evidence” set out in Brown and Beatty, Canadian Labour Arbitration (5^th edition), at paragraph 3:74 as follows:

Parol or extrinsic evidence, in the form of either oral testimony or documents, is evidence which lies outside, or is separate from, the written document subject to interpretation and application by an adjudicative body. Although there are numerous exceptions, the general rule at common law is that extrinsic evidence is not admissible to contradict, vary, add to or subtract from the terms of an agreement reduced to writing. Extrinsic evidence can be admitted for the purpose of providing an arbitrator with the bargaining context so as to help facilitate the interpretation of the collective agreement. If the written agreement is ambiguous, such evidence is admissible as an aid to the interpretation of the agreement to explain the ambiguity but not to vary the terms of the agreement. The two most common forms of such evidence in labour arbitrations are the negotiating history of the parties leading up to the making of a collective agreement, and their practices before and after the making of the agreement. And in addition to its use as an aid to interpretation of a collective agreement or a settlement agreement, or to establish an estoppel, it may be adduced in support of a claim for rectification. However, for such evidence to be relied upon it must be “consensual”. That is, it must not represent the “unilateral hopes” of one party. Nor can it be equally vague or as unclear as the written agreement itself.

 

[89] PIPSC argued that extrinsic evidence should be allowed only if the wording in the collective agreement is ambiguous and that the CRA bears the burden of demonstrating that extrinsic evidence should be admitted, as it is the party making the request. Arguments about the construction of the collective agreement language do not equate to the existence of an ambiguity, it said. The rule against extrinsic evidence is designed to prevent a party from trying to alter or attack a written contract, and in this case, the CRA seeks to introduce evidence that would effectively result in adding words to the collective agreement, requiring employees to occupy an MG position rather than simply performing MG duties, PIPSC argued.

[90] The Board should follow the directions of the Supreme Court of Canada (SCC) in Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 SCR 129 at paras. 57 and 58, and not hear evidence about the subjective intentions of the parties when they reached the AFS collective agreement, PIPSC argued. This was the approach taken by the Board in Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2016 PSLREB 77 (“PIPSC Personal Leave Policy Grievance”) at paras. 93 to 96, it claimed.

[91] PIPSC also argued that ruling against the introduction of extrinsic evidence would lead to a more efficient hearing, as few or no witnesses would be required.

[92] The CRA agreed that the primary means for interpreting the collective agreement should be the words used in the contract. However, it argued that the Board should not require a party to demonstrate an ambiguity in the collective agreement language as a precondition to hearing extrinsic evidence. It said that the case law has evolved and that the precondition has been relaxed to allow for a less formal and more practical approach. Following the SCC in Sattva Capital Corporation v. Creston Moly Corporation, 2014 SCC 53 (“Sattva Capital”), the decision maker can look at the surrounding circumstances to better understand the intentions of the parties when reaching agreement on a written contract, the CRA said. Adjudicators should not shield themselves from highly probative evidence (see Sault Ste. Marie (City) v. Amalgamated Transit Union, Local 1767, 2014 CanLII 71973 at paras. 41 to 42 and 45 to 46, and Air Canada v. Air Canada Pilots Association, [2012] O.L.A.A. No. 164 (QL) at paras. 39 and 40).

[93] The CRA also argued that the hearing could be less efficient if ambiguity acted as a precondition to hearing extrinsic evidence. In such a circumstance, the Board might have to bifurcate the hearing, first hearing the parties’ arguments on whether there is ambiguity in the language and later hearing extrinsic evidence were an ambiguity found. It would be more efficient to allow the parties to call their evidence and decide later what weight to place on it, the CRA argued.

[94] As indicated earlier in this decision, after hearing the parties’ arguments on the admissibility of extrinsic evidence at the commencement of the hearing, I ruled that I would allow them to call it.

[95] I understand that the reliance on extrinsic evidence has historically been tied to the question of whether there is an ambiguity in the collective agreement language; it can be allowed if there is an ambiguity, and it should not be allowed if there is no ambiguity.

[96] The challenge of this approach is that what is normally before an adjudicator in a case like this is a dispute about what the words mean. This leaves the decision maker in a chicken-and-egg situation: How does one know if the language is ambiguous until the parties argue the case? Unless one is dealing with terms that are clearly defined in the collective agreement or that can be clearly understood via a plain-language interpretation, the very fact that the parties are in dispute about the meaning of a clause suggests a potential ambiguity.

[97] This is the case with clause 44.08. On its face, there is a potential ambiguity about the meaning of the words “employees who perform ... MG ... duties”. Are MG duties defined somewhere? Does one have to occupy an MG position to perform MG duties? Or can MG duties be performed by employees other than those classified MG? And why does the French version of the clause refer to the performance of duties of a position classified MG, while the clause in English refers only to the performance of MG duties?

[98] Even if I were to eventually find the words of clause 44.08 unambiguous, I told the parties that I would allow the calling of extrinsic evidence, following the principles set out in Sault Ste. Marie, at para. 46, as follows:

46. It appears to me that the Sattva, Dumbrell, Air Canada approach to the admissibility of factual circumstances (context/factual matrix) is attractive because it is practical, direct, and makes common sense for many of the reasons explored in University of British Columbia. While outcomes may not differ from what might be expected from a traditional Leitch approach, the analysis is not encumbered by any formal necessity to first demonstrate ‘ambiguity’, or some sufficiency of ambiguity, as a precondition to the admission of otherwise illuminating evidence. While the words used by the parties to express their intention should retain presumptive prominence, context should not be ignored. That context may involve such matters as how particular words should be specially understood in a particular industry or setting, bargaining history, and the practice of parties in the implementation or application of the particular clause in question.

 

[99] I note that in many collective agreement or policy grievance disputes before this Board, one party or the other has sought to introduce extrinsic evidence. Sometimes, it is the bargaining agent (Professional Institute of the Public Service of Canada v. National Research Council of Canada, 2013 PSLRB 88, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2016 PSLREB 47, Public Service Alliance of Canada v. Treasury Board (Department of Citizenship and Immigration), 2018 FPSLREB 74, Federal Government Dockyards Trades and Labour Council (Esquimalt, B.C.) v. Treasury Board, 2019 FPSLREB 80, Professional Institute of the Public Service of Canada v. Treasury Board, 2019 FPSLREB 112, Myles v. Canada Revenue Agency, 2020 FPSLREB 49, and Professional Institute of the Public Service of Canada v. Canadian Food Inspection Agency, 2020 FPSLREB 69). In others, it is the responding employer (PIPSC Personal Leave Policy Grievance, Fehr v. Canada Revenue Agency, 2017 FPSLREB 17, Valderrama v. Deputy Head (Department of Foreign Affairs, Trade and Development), 2020 FPSLREB 86, and this matter). In most of these cases, the Board opted to hear the extrinsic evidence that the parties wished to call and then made a determination as to what weight to place on it, if any.

[100] Even in PIPSC Personal Leave Policy Grievance, which PIPSC argued as reinforcement for the principles in Eli Lilly, after finding the language in question unambiguous (para. 110), the Board went on to weigh some of the extrinsic evidence it had heard (paras. 111 to 113) before making a final decision (paras. 116 to 118). As for hearing efficiency, this was a case in which the Board did opt to bifurcate the hearing, first hearing arguments on the admissibility of extrinsic evidence, and then only hearing that evidence in a continuation hearing some 15 months later.

[101] I believe that the approach of allowing contextual evidence to be heard from the start is fair, practical, and ultimately more efficient. This approach recognizes the context in which collective agreements are negotiated. They are not negotiated in the courtroom; they are often concluded late at night or early in the morning, often following extended periods of disagreement, a fact borne out in this case by Mr. Lamarche’s testimony about the bargaining that led to the 2002 AFS collective agreement.

[102] Given that, the Board’s approach to interpreting them should involve a
“... practical, common-sense approach not dominated by technical rules of construction” (see Sattva Capital, at para. 47). The Board’s job in such cases is to interpret the words of the collective agreement by considering their ordinary and grammatical meaning in the context of the circumstances known to the parties at the time they negotiated the language.

[103] While making this initial ruling, I also told the parties that I was cognizant of the limitations placed on the value of extrinsic evidence by the SCC in Sattva Capital, at para. 57, as follows:

[57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement ... The goal of examining such evidence is to deepen a decision­maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract ... While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement ....

[Emphasis added]

 

[104] Recently, the Ontario Superior Court reinforced the principles in Sattva Capital and applied them to a collective agreement dispute (see Nemak of Canada Corporation v. UNIFOR Local 200, 2022 ONSC 1732). The Court provided a useful summary of the principles to be followed, at paragraphs 18 and 19, as follows:

[18] In Sattva, the Supreme Court emphasized that the starting point for the interpretation of a written agreement will always be the wording of the contract itself. Surrounding circumstances will be considered in interpreting the contract, but the intent of that evidence is to deepen the decision maker’s understanding of the mutual and objective intentions of the parties expressed in the words of the contract (at para. 57).

[19] The parol evidence rule precludes the use of evidence outside the wording of the contract which seeks to add to, subtract from, vary or contradict the written words of the contract. This includes evidence about the subjective intention of the parties (at para. 59). It applies with particular force when a party seeks to put in evidence that the document does not mean what it says. However, consideration of surrounding circumstances does not offend the parol evidence rule (at para. 59), because evidence of surrounding circumstances “is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words” (at para. 60).

 

[105] When ruling that I would hear the extrinsic evidence that the parties wished to call, I also told them that I would welcome their arguments as to what evidence was relevant to my interpretation of clause 44.08, and what was not. Following the case law just cited, in the reasons that follow, I will provide my rulings on what extrinsic evidence is relevant to my determination and what is not.

IV. Reasons

[106] Turning now to the grievance, I will examine the parties’ arguments and provide my reasons for decision under the following questions:

· What is the plain-language interpretation of clause 44.08?

· Should the plain-language interpretation be rejected as absurd or for other reasons?

· What meaning should be given to the differences between the English and French versions of the clause?

· What extrinsic evidence assists in the interpretation of the clause, and what meaning does it support?

 

A. What is the plain-language interpretation of clause 44.08?

[107] My determination of this grievance must begin with the words of clause 44.08, which for ease of reading I will repeat here in both English and French:

 

[108] PIPSC argued that the precise words that the parties chose to use in clause 44.08 must be given their ordinary meaning. The words chosen, in English, extend eligibility to all employees “who perform Management Group (MG) duties”. The parties did not say that employees must “occupy” a position in the MG group. The CRA is trying to add an obligation to the collective agreement that is found only in its policy documents, not in the collective agreement, PIPSC said.

[109] PIPSC grieved the CRA’s use of the April 2018 version of the policy document because it provides eligibility for “... employees occupying positions in the MG
group ...” or who have “... performed the duties of a classified MG position ... for at least six consecutive months ...”. Those words are not in the collective agreement, the union argued.

[110] While the policy documents are clear and have been consistently applied for some 18 years, a unilaterally developed employer policy cannot be used to add words to the collective agreement, PIPSC argued. Furthermore, the Board cannot add words to the collective agreement that would amend its meaning (see Chafe, at para. 51, Delios v. Canada (Attorney General), 2015 FCA 117 at para. 36, Gagnon v. Treasury Board (Correctional Service of Canada), 2017 FPSLREB 48 at paras. 30 and 31, and s. 229 of the Act).

[111] PIPSC argued that where the parties have chosen to restrict a clause to a particular classification, they have clearly done so. It cited several clauses in the 2018 AFS collective agreement, including the clause allowing for compressed workweeks, which is prefaced by an exclusion statement that reads, “Paragraph 8.02 (f) does not apply to employees classified as CS working a day work schedule” [emphasis in the original], and clause 9.08, which provides for the payment of a mileage allowance “to employees classified as CS only” [emphasis in the original]. These are not newly developed words for expressing when a clause is restricted to a particular classification — those same words were chosen by the parties for those same clauses in the 2002 AFS collective agreement.

[112] These are sophisticated parties that know how to clearly identify when a clause pertains only to a single classification, PIPSC argued. If the parties intended clause 44.08 to be restricted to employees occupying an MG position, they would have selected words like those used in clauses 8.02(f) and 9.08. Where the parties use different words, those different words must be given a different meaning, it argued (citing Gagnon, at para. 34, and Legge v. Treasury Board (Department of Fisheries and Oceans), 2014 PSLRB 47 at para. 39, which followed the SCC’s decision in Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27).

[113] Clause 44.08 should not be restricted to those who perform those MG duties in a position classified MG, PIPSC said. The core duties of the MG group involve the management of people, and the evidence provided by Ms. Mark and Mr. Eckler confirmed that they perform those duties as part of their jobs. Their performance of people management duties is mandated by their job descriptions. They should be eligible to be considered for performance pay.

[114] PIPSC also argued that the performance pay policy document fetters the discretion of management by restricting the clause to employees who occupy an MG position. The policy removes from consideration a whole category of employees who perform MG duties but do not occupy an MG position. Under the clause, eligibility for performance pay should be evaluated on a case-by-case basis, it said.

[115] The CRA argued that the words of clause 44.08 clearly tie the payment of the performance bonus to members of the MG group. Both the heading of the clause and the words used within it refer directly to the Management Group. All employees are grouped into classifications, and the only employees who can perform the duties of the MG group are employees classified MG. The parties would have used broader language had they intended the clause to capture employees in other classifications, it said.

[116] Furthermore, the CRA argued that any benefit with monetary implications must be clearly stated and not imposed by inference or implication (see, for example, Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 at para. 27, Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence), 2015 PSLREB 33 (“Dockyard East”) at para. 55, and Association of Justice Counsel v. Treasury Board, 2015 PSLREB 18 at para. 129). The parties should have respect for what was negotiated, and any unfairness should be resolved at the bargaining table, the CRA argued (see Parmiter v. Treasury Board, 2021 FPSLREB 57 at para. 22).

[117] In looking at the language of clause 44.08, I find that there is some ambiguity in its meaning, giving rise to two possible interpretations.

[118] The dispute about the clause turns on the words “perform Management Group (MG) duties”, but what do those words mean? The term is not directly defined in the collective agreement or in any of the other evidence placed before me.

[119] I agree with PIPSC that elsewhere in the collective agreement, where the parties have chosen to include or exclude employees from a provision based on their classification, they have used precise words, such as these, found preceding clause 9.08: “Clause 9.08 applies to employees classified as CS only” [emphasis in the original]. Clause 44.08 is not prefaced that way. Nor does it say that, at least in English, the clause is restricted to those “... who perform the duties of a position classified within the Management Group ...”. It says that all employees who “perform Management Group (MG) duties” are eligible to receive the bonus. It is not unreasonable for PIPSC to argue that since the core role of the Management Group is managerial, any employee performing significant managerial duties, such as Ms. Mark or Mr. Eckler, should be eligible to receive the bonus.

[120] However, there are several aspects to the plain language used in the collective agreement that support the CRA’s interpretation of the clause.

[121] First of all, it is significant that clause 44.08 uses capital letters to refer to “Management Group (MG) duties”. By using both the official title and the initials of the classification group, the parties have linked the clause to the MG classification group. This is reinforced by the title of the clause, “Performance bonus – Management Group”. This also signals that the clause applies to members of that group. As argued by the CRA, the heading of a clause can help explain the meaning of the clause that follows (see Brown and Beatty at paragraph 4:23, Dockyard East, at para. 45, and Marin v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 92 at para. 19). While the wording of the heading is less clear than the words that precede clause 9.08, the heading does imply that the clause is for members of the MG group.

[122] Finally, there is the fact that clause 44.08 resides within the Pay Administration article 44. This article provides that employees are to be paid at the rates of pay set out in Appendix A of the collective agreement in accordance with the classifications of the positions to which they are appointed (clause 44.02). The article goes on to explain more precisely how the pay in Appendix A is to be administered (clauses 44.03 to 44.06) and how and when employees can receive additional acting pay if they perform the duties of a higher classification level (clause 44.07).

[123] In other words, in article 44, the entire concept of pay is intertwined with the classification of employees into certain groups and levels. Clause 44.08 falls within the Pay Administration article. This reinforces the interpretation that performance bonus pay is tied to a particular classification group, MG.

[124] Nowhere in the collective agreement are “MG duties” defined in such a way that would support an interpretation separate and distinct from the duties one performs when one occupies a position in the Management Group. While terms such as “management duties” or “supervisory duties” have a plain and ordinary meaning, those are not the words used. I find the reference to the official title of the group in both the heading and text of the clause and the placement of the clause in article 44 more supportive of the interpretation given the clause by the Agency. Only one classification group is mentioned in the clause — the MG group.

[125] If the parties wanted all classification groups to be eligible for a performance bonus, the words “Management Group” would be redundant, since the parties could have used a more general concept, such as “management duties” or “supervisory duties”.

[126] I also agree with the submissions of the CRA that for a clause providing a significant monetary benefit, the wording falls short of clearly indicating that it applies to employees classified in positions other than MG.

B. Should the plain-language interpretation be rejected as absurd or for other reasons?

[127] The Board should not reject PIPSC’s interpretation of clause 44.08 because the clause would be absurd, be difficult to administer, or cost the CRA more money, PIPSC argued. The testimony of Mr. Teather indicated that the Agency can easily identify those employees who perform supervisory duties: he was able to quickly cite that there are 1222 people performing supervisory duties who are not MGs. PIPSC recognized that the CRA would bear additional costs if performance pay were extended to non-MG employees but argued that those costs are not absurd, given the overall scope of the Agency’s payroll. The fact that the result may seem unfair to the Agency should not influence the Board’s interpretation of the plain language of the agreement, PIPSC argued (see Chafe, and Delios paras. 36 and 37).

[128] The CRA argued that PIPSC’s interpretation would not be easy to administer. Despite its ease identifying how many employees perform a supervisory function, PIPSC’s interpretation of the clause would require the Agency to review precisely how many of the 1222 non-MG supervisors “perform Management Group (MG) duties”. This would require the Agency to define MG duties as something distinct from the duties performed by those employees who are in MG positions because they match the primary purpose of the MG occupational group definition. This conflicts with the way in which the CRA classifies positions. Furthermore, it would require the Agency to do the same thing for employees in the PSAC-SP bargaining unit, as the Agency has a similar performance bonus clause (albeit one that provides MG classified employees with additional leave, instead of additional pay).

[129] It is well established that an adjudicator may reject what is otherwise clear collective agreement language if the resulting interpretation is absurd (see Ewaniuk v. Treasury Board (Department of Citizenship and Immigration), 2020 FPSLREB 96 at para. 45). Faced with a choice between two possible interpretations, reasonableness and administrative feasibility can be used in determining which interpretation is to be preferred (see Ewaniuk, at para. 46, citing Brown and Beatty at paragraph 4:2100).

[130] I do not agree with the CRA that I should reject PIPSC’s interpretation of the clause simply because the PSAC has a similar clause in its collective agreement. This is PIPSC’s policy grievance, about the wording in its collective agreement with the CRA. Board decisions on policy grievances may or may not affect the interpretation of similar language in other collective agreements; that is up for those other parties to determine.

[131] I agree that PIPSC’s interpretation of the clause would be easy to administer if the words “performs Management Group (MG) duties” mean that all employees who perform any supervisory duties could be eligible to receive the bonus. Clearly, it was easy for Mr. Teather to provide a count of employees performing supervisory duties.

[132] However, the collective agreement does not say “performs supervisory duties”. The question of what level of supervisory duties would add up to the performance of MG duties would very much be a live question if I were to adopt PIPSC’s interpretation. Such an interpretation would impose an administrative burden on the Agency, as it would have to carefully evaluate an additional 1222 employees for possible bonuses.

[133] The application of this criteria favours the Agency’s interpretation.

C. What meaning should be given to the differences between the English and French versions of the clause?

[134] Then there is the significance of the differences between the English and French versions of the clause. These differences add to the ambiguity of the clause. The English phrase, “employees who perform Management Group (MG) duties”, could be interpreted as meaning employees other than those classified MG, and the French version of the clause more clearly ties eligibility for the performance bonus to positions classified in the MG group because it reads, “... les employés qui effectuent les tâches d’un poste classifié dans le Groupe de Gestion (MG) ...” [emphasis added].

[135] In short, the French version of the clause much more clearly supports the CRA’s interpretation of clause 44.08, which is that to receive the performance bonus, one must perform duties in a position classified MG.

[136] In the collective agreement between the parties, article 3 is titled “Official Texts”, and clause 3.01 reads as follows: “Both the English and French texts of this Agreement shall be official.”

[137] As argued by the CRA, the interpretation of clause 44.08 argued by PIPSC would put the English and French versions of the clause in conflict. The Agency’s interpretation of the clause would leave the two versions in harmony and should be preferred. As stated in Brown and Beatty at paragraph 4:21, “Furthermore, where there are French and English versions, the interpretation to be sought is one which is coherent in both texts.”

[138] I will address what the extrinsic evidence has to say about the differences between the English and French versions later in this decision.

D. What extrinsic evidence assists in the interpretation of the clause, and what meaning does it support?

[139] Overall, I find that the technical analysis of clause 44.08 favours the interpretation argued by the CRA. However, the fact that there is some ambiguity in the provision, particularly when comparing the English- and French-language versions, calls for the consideration of extrinsic evidence that can be of assistance in interpreting the text of the agreement. As stated by the Ontario Superior Court in Nemak, the intent of considering that evidence “... is to deepen the decision maker’s understanding of the mutual and objective intentions of the parties expressed in the words of the contract ...” (at paragraph 18).

1. Bargaining history

[140] First, consider the negotiating history. The undisputed evidence provided by Mr. Cenne is that when the Agency was first formed, it wished to enhance the role and importance of managers and team leaders. It made extensive arguments for the creation of a separate bargaining unit for these managers in front of the PSSRB. Even after the PSSRB rejected the establishment of a separate unit, the Agency proceeded to establish a distinct classification standard that cut across the two bargaining units that were established. In the negotiations leading up to the signing of the 2002 AFS collective agreement, the Agency proposed a brand new pay grid for the Management Group, and it proposed a performance pay clause.

[141] This evidence cannot be dismissed as merely the subjective intentions of the Agency; it is evidence that is reflected in PSSRB’s decision in CCRA v. APSFA and in the content that found its way into the first collective agreement between the parties: the establishment of the MG group as a distinct classification effective March 31, 2002, and the content of the performance pay clause.

[142] Mr. Cenne testified clearly and explained that during negotiations, the Agency wanted to include the performance pay clause for members of the MG group because it wanted to highlight the importance of effective people management.

[143] The evidence of Mr. Lamarche, who was the chair of PIPSC’s AFS group in 2002, was that his bargaining team did not want to accept the clause because it wanted money for the unit as a whole. The team did not want to reward one group of employees with a pay increase. They listened to the presentation but saw it as an “employer provision.” They did not propose counter language. The PIPSC team agreed to include the performance pay provision in the tentative agreement only once they felt that they had secured acceptable pay increases for the bargaining unit as a whole. PIPSC did not make a counter proposal on the clause, and no evidence was provided to indicate that there was any discussion about it applying to non-MG employees.

[144] This testimony illustrates the context in which collective bargaining takes place. Ultimately, it is not relevant how many times PIPSC said “no” to the language being proposed during negotiations. What is relevant is that in their tentative agreement, reached in June 2002, they said “yes” to the creation of a new clause, and in the collective agreement signed in July 2002, the performance bonus clause was incorporated into the Pay Administration article.

[145] I have taken careful note of the fact that the language used for the performance bonus clause in the June 2002 tentative agreement was changed before the 2002 AFS collective agreement was signed in July. The tentative agreement described it as a new article; the final clause was made part of the existing article on Pay Administration. The eligibility criteria in English changed from “... perform the duties of a position classified within the Management Group ...” to “perform Management Group (MG) duties”. The tentative agreement did not contain the transitional reference to the 2001-2002 performance review period; the collective agreement did. Finally, the clause in the tentative agreement said the lump-sum performance bonus would be calculated as up to 5% of the employee’s MG salary; the collective agreement states that the bonus is up to 5% of the salary of the employee’s substantive position.

[146] The wording of the tentative agreement cannot be used to override the collective agreement. It is the final collective agreement language that ultimately represents the agreement between the parties.

[147] However, the fact that the language was changed in several ways does indicate that there must have been a precise intention behind the final wording of the clause. On its face, the fact that the English language in the tentative agreement was altered from “... perform the duties of a position classified within the Management Group ...” to “perform Management Group (MG) duties” lends more credence to PIPSC’s arguments about the meaning of the clause than it does to the CRA’s arguments. The fact that the parties changed the formula from 5% of the employee’s MG salary to 5% of the employee’s substantive position salary also suggests that the clause was intended to apply to non-MGs or at least to non-substantive MGs.

[148] However, only Mr. Cenne testified clearly as to why there was a difference between the clause contained in the June 2002 tentative agreement and the one in the 2002 AFS collective agreement signed in July of 2002. He said that the Agency populated the MG group effective only on March 31, 2002, but that it wanted the performance bonus to apply for the entire 2001-2002 performance period. The Agency also wanted the article to apply to employees acting in an MG role, not just those employees permanently appointed to an MG position, and the language changes reflected that goal.

[149] Mr. Lamarche had no explicit explanation for the changes in language. He said only that the tentative agreement was reached late in the night and should therefore not be relied on as evidence of what the parties intended when they signed the collective agreement.

[150] PIPSC argued that Mr. Cenne’s testimony clearly revealed the Agency’s intention to have the performance bonus clause apply to non-MGs, which is why they removed the reference to positions classified MG. I disagree. Mr. Cenne clearly explained that 2001-2002 was a transitional year and that the Agency wanted to pay the bonus to those employees who were being converted to the MG group on March 31, 2002, for the entirety of that year.

[151] He also said that the changes were designed to capture employees who acted in an MG role. While they might have chosen clearer language to reflect this, this explanation makes sense, particularly when considering the part of the clause that sets the bonus at up to 5% of an employee’s substantive position salary. If the parties intended to include employees acting in an MG role, it makes sense that they included a reference to the employees’ substantive position salary. There was no dispute between the parties that the clause is intended to apply to employees acting in an MG position.

[152] Both Mr. Cenne and Mr. Lamarche testified that when the parties renewed the performance pay clause in the negotiations for the 2005 AFS collective agreement, the only change made was to remove the reference to the 2001-2002 performance pay year. Otherwise, the parties did not propose changes or have substantive discussions about the clause.

[153] Other than a renumbering of the clause in the signing of the 2009 AFS collective agreement, the undisputed testimony of the witnesses before me was that there were no substantive discussions about the clause and no proposals to change the wording. The performance bonus clause was renewed without substantive change in each of the 2012, 2018, and 2019 collective agreements.

[154] I find that this extrinsic evidence supports the conclusion that clause 44.08 was first negotiated during the negotiations that led to the signing of the 2002 AFS collective agreement, that it has not been substantively altered since, and that the introduction of the clause was tied directly to the introduction of the MG classification as a distinct group of employees. This evidence reinforces my conclusion that it is the CRA’s interpretation of the clause that should prevail in the grievance.

[155] Note that I do not feel it necessary to place weight on Mr. Cenne’s testimony that he explained to the PIPSC team that the clause applied only to MGs during negotiations for the 2002 AFS collective agreement. This evidence was not corroborated by Mr. Lamarche. I find it sufficient to place weight only on the contextual evidence about the creation of the MG group and on Mr. Cenne’s explanation of the logic behind the wording of the clause.

2. The classification system

[156] Secondly, I have considered the testimony about the operation of the Agency’s classification system and find it relevant to the determination of this matter. Both Mr. Said and Mr. Teather recognized that the classification system determines how jobs are recognized and paid. Both stated that when a job is being classified, one must look at its primary purpose and determine which occupational group or classification standard applies. Once that is done, the classification standard and the classification reference tool is used to assess the job and determine its level.

[157] Clearly, the MG classification standard is meant to capture those jobs with a primary purpose that is managerial. In the group definition, found in the MG Reference Tool, it says that the MG group includes positions responsible for the following functions: organizing and scheduling staff, developing and monitoring work plans, developing staff competencies, and dealing with human resources matters, such as authorizing leave and overtime. Positions in the MG group “may also be responsible” for managing a budget, acting as a step in the grievance process, exercising delegated human resources authorities, and representing the Agency on union-management committees. In the standard, the point system used places considerable weight on the leadership of human resources (15% of total points).

[158] In short, the MG standard supports the notion that MG duties are those that involve the management of human resources.

[159] By comparison, the AU classification standard is designed to rate jobs whose primary purpose is the application of auditing and accounting principles to the assessment of tax returns and the planning, delivery, and administration of external audit programs.

[160] However, the AU standard also contains an inclusion statement that recognizes the supervision of other auditors as part of the primary purpose of positions included in the AU standard. The evidence before me from these documents and from the testimonies of Mr. Said and Mr. Teather is that individual duties or tasks can be performed by employees in different classifications. This includes supervisory duties. The determination of which classification system applies to a particular job is based on an assessment of the position’s primary purpose.

[161] In short, this extrinsic evidence about the way in which the classification system works does not support the notion that there are a set of tasks called “MG duties”, which are separate and distinct from the duties of employees classified MG. The description of MG duties exists in documents that are intended to classify positions MG, or not. Although the AU standard does not elaborate the supervisory duties of AU jobs in as explicit a way as the MG standard does, supervision is clearly listed as a potential AU duty.

[162] I note that Ms. Mark and Mr. Eckler provided detailed testimony about the extent of their human resources duties as ILBCMs classified in the AU group. They supervise teams of six to seven employees, assign them work, develop their capacities, evaluate their performance, and approve their leave. Ms. Mark in particular testified that there were few differences between the team leader role she played as an MG and the team leadership roles she plays as an AU.

[163] However, as PIPSC argued, this is not a grievance about job descriptions; nor is it a classification grievance about the placement of the ILBCM positions in the AU group. It is not an acting-pay grievance, suggesting that the AU-ILBCMs ought to be paid as MGs and therefore be potentially eligible for performance pay. I make no finding with respect to the placement of Ms. Mark’s and Mr. Eckler’s positions in the AU group, as that was not the issue before me.

[164] The question is whether Ms. Mark’s and Mr. Eckler’s testimonies shed any light on my interpretation of the performance bonus clause in the collective agreement. In my assessment, they do not. I accept that the 2016 downward reclassification of some positions from the MG group to the AU group might have led to a sense of unfairness among employees who continue to work hard to manage their teams without access to the performance bonus. And this evidence helps me understand why PIPSC took up their cause through this policy grievance. However, their evidence about the supervisory duties they have performed in the AU classification post-2016 provides no probative value at all in my effort to better understand what the parties intended when they signed the performance bonus clause into the first AFS collective agreement in 2002.

[165] I have also noted Mr. Eckler’s testimony that he has received invitations to meetings and training sessions as an “MG Equivalent”. While this reinforces his position that he is performing duties similar to an MG, it does not mean that he should have been classified MG; nor does it mean that he has performed MG duties as contemplated by the performance bonus clause. Neither does this testimony shed any light on the intentions of the parties when they signed the performance bonus clause into the first AFS collective agreement in 2002.

3. Policy documents

[166] Third, there is the extrinsic evidence in the form of the Agency’s policy documents about the performance management process and the pay and leave bonuses associated with it. I agree that the Board must be cautious accepting this as evidence of the parties’ intentions with respect to the language of the collective agreement. A unilaterally promulgated policy document cannot be used to overturn the language of the collective agreement (see Brown and Beatty at paragraph 4:14).

[167] However, at issue is not a single policy instrument but no less than 16 versions of the policy statements or guidelines issued annually by the Agency between 2002 and 2018 (the final version before this policy grievance was filed). Consistently, in each and every one of them, the Agency made it clear that the performance pay bonus is directed to those employees who are part of the MG group on an indeterminate basis or who have acted in an MG position for 6 consecutive months or more. None of these documents provides any indication that the performance bonus was ever intended to cover employees of other bargaining unit classifications who perform managerial or supervisory duties in those classifications.

[168] Past practice in a matter like this should be considered only when a union has been made aware of and has acquiesced to an employer’s practice (see Canada (Attorney General) v. Fehr, 2018 FCA 159 at para. 9, and Ewaniuk, at paras. 16 and 49). Therefore, I might not rely entirely on these documents as evidence of the Agency’s past practice, to interpret clause 44.08. However, the fact that the Agency published annual versions of this document over a period exceeding 16 years, that they consistently reflected the CRA’s interpretation of the clause, and that PIPSC never once made proposals to change the language in collective bargaining, is relevant contextual evidence which assists me in confirming the intended application of the clause. The employer’s interpretation and application of the clause went uncontested until some employees filed individual or group grievances in 2016 following the WFA process which created the AU-ILBCM positions, and until PIPSC filed this policy grievance in 2019.

4. Other extrinsic evidence

[169] The CRA argued that the union’s failure to raise the eligibility issue during consultations on the performance review process was relevant and indicated the union’s acceptance of its past practice. Mr. Gillis and Mr. Muench both testified about those consultation processes, and several email exchanges about them were tendered as exhibits.

[170] I place no weight on the fact that the union did not raise the eligibility issue during consultations on the performance review process. The evidence was that the consultations took place primarily after 2016, and there was no indication that eligibility was part of their mandate. By 2016, individual and group grievances about eligibility had been filed by employees such as Ms. Mark and Mr. Eckler. Mr. Gillis and Mr. Muench has a clear rationale as to why they would not use the consultation forum to raise what is a contract-interpretation issue. This evidence sheds no light on what the parties intended when they first included the performance bonus clause in the 2002 AFS collective agreement.

[171] I place no weight on the subjective interpretation of Mr. Cenne that extending the performance bonus to non-MGs would defeat the purpose of the clause. Nor do I place any weight on the subjective assessment of the meaning of the clause given by Mr. Dunn or any of the PIPSC negotiating team members.

5. Bargaining history related to the French version of the clause

[172] The extrinsic evidence provided about the differences between the English and French versions of the clause is relevant but not very helpful to my interpretation of the clause. Both parties brought forward witnesses who testified that the parties negotiated in English and translated the result into French.

[173] Mr. Cenne testified that the French language of the clause should have been modified to match the English so that the clause would clearly include those in acting positions. In other words, his evidence was that the French version of the agreement is incorrect or should not be given as much weight as the English. Similarly, Mr. Lamarche testified that the parties negotiated in English, that the Agency carried out the translation of the agreement, and that the English should prevail.

[174] This evidence contradicts the clear language of the collective agreement at clause 3.01 that both the English and French versions are official. The parties have now signed a total of six collective agreements containing both clause 3.01 and the performance bonus clause, with one construction in English and a slightly different construction in French. The fact that in 2002, they might have exchanged proposals in only one official language cannot be sustained as a reason to dismiss the wording used in the other official language of the collective agreement.

[175] In any case, I do not accept Mr. Cenne’s interpretation that the French version of the clause would exclude employees who act in an MG role. Those who act in an MG position are, for that time, performing the duties of a position classified in the Management Group. In my assessment, their eligibility is established in both the English and French versions of the clause.

[176] As noted earlier, when the English and French versions of the collective agreement are both official, the Board should select the interpretation that provides for the greater harmony between the two versions. That remains the CRA’s interpretation.

V. Conclusions

[177] I have determined that the meaning of clause 44.08 is that it applies to those employees who perform Management Group duties by occupying or acting in a position classified MG. In reaching this conclusion, I have considered the language of the clause, its direct reference to the Management Group, its placement within the pay administration article, and its wording in both English and French. I have considered that extrinsic evidence that I found both relevant and allowed under the direction laid out by the SCC in Sattva Capital, namely, the context of collective bargaining, the testimonies of those involved in the negotiations of the clause, the evidence about the operation of the classification system at the CRA, and the fact that for 18 years now, the Agency has maintained a consistent policy about its administration of the clause.

[178] I accept the arguments of the parties that the Board may not amend the collective agreement between them, per s. 229 of the Act. I recognize that accepting the CRA’s interpretation could arguably be found to be adding the word “classified” to the English version of the clause or adding the idea that someone must “occupy” an MG position to receive the bonus. However, the interpretation proposed by PIPSC arguably involves changing the clause from “performs Management Group (MG) duties” to “performs managerial duties” or “performs supervisory duties”.

[179] I am not altering the terms of the collective agreement but merely providing an interpretation of the words that the parties used. The clause provides that all employees “who perform Management Group (MG) duties” will be considered for the performance pay bonus; I find that the CRA’s interpretation of those words does not constitute a violation of the collective agreement.

[180] I have noted PIPSC’s rhetorical question that if the Agency’s subjective intention behind the clause, as expressed by Mr. Cenne, was that it wished to reward effective people management, then how is it fair that MG team leaders receive a bonus but AU team leaders do not?

[181] This is an important question but is not relevant to my interpretation of the collective agreement language. The job of an adjudicator is to interpret the collective agreement based on the language of the collective agreement and any relevant extrinsic evidence of the parties’ intentions at the time they fashioned its language, despite that the result may be unfair (see Brown and Beatty at paragraph 4:21). If it is unfair that Ms. Mark and Mr. Eckler do not receive performance pay while their MG colleagues do, that is for the parties to sort out. As argued by PIPSC, when a provision is felt to be unfair to one party or the other, the place to sort that out is the next round of bargaining. This was reinforced by the Federal Court of Appeal in Delios, at para. 36, as follows:

[36] Behind this finding is the adjudicator’s specialized and expert appreciation that in any collective agreement – often a document of considerable length and complexity – there will be issues left on the table, unresolved. Collective bargaining can be tough, each side must make difficult compromises, and so there are any number of things in the final deal that can seem unfair or inequitable to the parties. As the adjudicator noted, it is not for him to modify the text of the agreement to address those issues. Rather, as the adjudicator held, it is for the next round of bargaining.

[Emphasis added]

 

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

(The Order appears on the next page)

VI. Order

[183] The grievance is denied.

June 23, 2022.

David Orfald,

a panel of the Federal Public Sector

Labour Relations and Employment Board