[1] By letter of March 21, 2022, Statistics Survey Operations (“the employer” or “SSO”) requested arbitration in respect of all employees of the Statistics Survey Operations bargaining unit. The Board defined the bargaining unit as follows in Public Service Alliance of Canada v. Statistics Survey Operations, 2021 FPSLREB 65:

All employees of Statistics Survey Operations

[2] Along with its request, the employer provided a list of the terms and conditions of employment that it wished to refer to arbitration. Those terms and conditions of employment and supporting material are attached as schedule 1.

[3] The Public Service Alliance of Canada (“the bargaining agent”) provided its proposals, dated March 29 and 30, 2022, on the terms and conditions of employment that the employer wished to refer to arbitration. The bargaining agent also provided a list of additional terms and conditions of employment that it wished to refer to arbitration. Its proposals and the supporting material are attached as schedule 2.

[4] By letter of April 7, 2022, the employer provided its response with respect to the additional terms and conditions of employment that the bargaining agent wished to refer to arbitration. It also raised a number of objections. That letter is attached as schedule 3.

[5] On April 27, 2022, the bargaining agent provided its response to the objections raised by the employer. Its letter and supporting material are attached as schedule 4. In its submissions, the bargaining agent informed the Board that some of the proposals were no longer in dispute. On April 26, 2022, the employer responded to the bargaining agent’s submissions. Its letter and supporting material are attached as schedule 5.

[6] On May 16, 2022, the bargaining agent responded to the employer’s submissions. Its letter and supporting material are attached as schedule 6. In its submissions, the bargaining agent informed the Board that it had amended some of its proposals, and it withdrew others. The withdrawn proposals are listed as follows, as per the bargaining agent’s numbering:

· article 2 (definition of “layoff”)

· clause 20.04 (Job security)

· clause 20.11 (Job security)

· clause 23.18 (Hours of work)

· clause 23.19 (Hours of work)

· clause 23.21 (Hours of work)

· Annex XX (Conversion from term to indeterminate employment)

[7] On May 25, 2022, the employer responded to the bargaining agent’s submissions. That letter is attached as schedule 7.

[8] The parties were advised that I would rule on the jurisdictional objections on the basis of written submissions.

[9] Note that throughout these terms of reference, text in bold refers to additions to the existing collective agreement language, and text in ~~strikethrough~~ refers to deletions in that language.

II. Jurisdictional objections

[10] The employer objected to a number of proposals on the basis that they were not referable to an arbitration board under several provisions set out in s. 150 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) and ss. 4(5)(c), 5(1), and 7(1) of the Statistics Act (R.S.C., 1985, c. S-19; “the SA”), which read as follows:

150 (1) An arbitral award that applies to a bargaining unit — other than a bargaining unit determined under section 238.14 — must not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if	150 (1) La décision arbitrale qui régit une unité de négociation qui n’est pas définie à l’article 238.14 ne peut pas avoir pour effet direct ou indirect de modifier, de supprimer ou d’établir une condition d’emploi:
(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;	a) soit de manière à nécessiter ou entraîner l’adoption ou la modification d’une loi fédérale, exception faite des lois affectant les crédits nécessaires à son application;
(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;	b) soit qui a été ou pourrait être établie sous le régime de la Loi sur l’emploi dans la fonction publique, la Loi sur la pension de la fonction publique ou la Loi sur l’indemnisation des agents de l’État;
(c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees;	c) soit qui porte sur des normes, procédures ou méthodes régissant la nomination, l’évaluation, l’avancement, la mutation, le renvoi en cours de stage ou la mise en disponibilité des fonctionnaires;
(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct; or	d) soit, dans le cas d’un organisme distinct, qui porte sur le licenciement, sauf le licenciement imposé pour manquement à la discipline ou inconduite;
(e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.	e) soit de manière que cela aurait une incidence sur l’organisation de la fonction publique, l’attribution de fonctions aux postes et aux personnes employées au sein de celle-ci et leur classification.
(2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.	(2) Sont exclues du champ de la décision arbitrale les conditions d’emploi n’ayant pas fait l’objet de négociations entre les parties avant que ne soit demandé l’arbitrage.

...	[...]
4 (5) The Chief Statistician shall, in addition to any other duties imposed on him or her under any other provision of this Act,	4 (5) Le statisticien en chef, en plus de toute autre fonction qui lui est conférée par toute autre disposition de la présente loi :
... (c) control the operations and staff of Statistics Canada.	[...] c) dirige les opérations de Statistique Canada et contrôle la gestion de son personnel.
5 (1) The Chief Statistician may employ, in the manner authorized by law, any commissioners, enumerators, agents or other persons that are necessary to collect for Statistics Canada the statistics and information that the Minister considers useful and in the public interest relating to the commercial, industrial, financial, social, economic and other activities that the Minister may determine. The duties of the commissioners, enumerators, agents or other persons shall be those duties prescribed by the Chief Statistician.	5 (1) Le statisticien en chef peut employer, de la manière autorisée par la loi, les commissaires, recenseurs, agents ou autres personnes qui sont nécessaires à la collecte, pour Statistique Canada, des statistiques et des renseignements que le ministre estime utiles et d’intérêt public, concernant les activités commerciales, industrielles, financières, sociales, économiques et autres que ce dernier peut déterminer. Leurs fonctions sont celles que le statisticien en chef prescrit.
7 (1) The Chief Statistician may prescribe the rules, instructions and, subject to subsection 21(1), requests for information that he or she considers necessary for conducting the work and business of Statistics Canada, the collecting, compiling and publishing of statistics and other information and the taking of any census authorized by this Act.	7 (1) Le statisticien en chef peut prescrire les règles, les instructions et, sous réserve du paragraphe 21(1), les demandes de renseignements qu’il juge nécessaires pour les travaux et opérations de Statistique Canada, pour la collecte, la compilation et la publication des statistiques et autres renseignements et pour tout recensement autorisé par la présente loi.

[11] The employer made submissions about its objections to the proposals that the bargaining agent has since withdrawn or amended. Since some of the proposals were withdrawn, I will deal only with the objections about the proposals that remain outstanding.

[12] I note that the employer relies on the SA to support its objections. The issue before me is whether the proposed clauses to which the employer has objected, as well as the one clause to which the bargaining agent has objected, are matters that can be referred to the arbitration board in consideration of ss. 144(1) and 150 of the Act. Therefore, it is sufficient for me to rely on the Act to determine the jurisdictional objections in this case.

A. Bargaining agent’s proposed change to a position title

[13] The proposed language is as follows: “~~Interviewers~~ Data Collection Agents”.

[14] The employer submits that this proposal infringes on the limitations expressed in s. 150(1)(e) of the Act as well as ss. 4(5)(c) and 7(1) of the SA. It contends that a position title is an essential element of a job evaluation process and a mandatory element of a classification decision. As such, it argues that that is an element considered in the classification of positions.

[15] The bargaining agent states that the employer’s assertion may be a valid argument in workplaces in which a classification system exists and in which a change to a position title may impact a position’s classification within a broader system. However, there is only one classification group (interviewers), and no impact will result from a change of title.

[16] I do not agree with the bargaining agent’s position. A position title is an essential element of any classification analysis. Even if there is only one classification group, the proposed change would directly alter or eliminate an existing term or condition of employment and would affect the employer’s authority to organize its workplace with respect to the classification of positions, which is contrary to s. 150(1)(e) of the Act.

[17] For these reasons, I find that this proposal is not included in the terms of reference.

B. Bargaining agent’s proposed amendment to article 2 - definition of “employee”, and new definition of “term employee”

[18] The proposed language of the clause reads as follows:

“employee” means a person so defined in the Federal Public Sector Labour Relations Act, and who is a member of the bargaining unit covered by this Agreement (employé/e) and shall include:

i) Regular full-time employee means an indeterminate employee who regularly works 37.5 hours per week on average;

ii) Regular part-time employee means an indeterminate employee who regularly works less than 37.5 hours per week;

The employer shall, on a quarterly basis, disclose to the union in writing, data concerning the number of regular full-time, regular part-time, and term employees in its employ each month, broken down by region, and the aggregate number of hours of work performed by each of those categories of employees each month, broken down by region.

...

“term employee” means an employee whose employment fills a short-term operational requirement and has a predetermined end date;

[19] The employer argues that this provision contravenes the prohibitions included in ss. 150(1)(a), (b), (c), (d), and (e) of the Act, as well as ss. 4(5)(c), 5(1), and 7(1) of the SA. It is of the view that the bargaining agent’s proposal is intended to establish a scheme to restrict the employer’s authority to assign work based on employment status (part-time and full-time) or to establish parameters with respect to the organization of its operations. The employer argues that using employment status as a factor in managing its operations is the same as using seniority, as it limits the Chief Statistician’s current authority to manage its operations, prescribe rules and instructions, and employ the necessary personnel, as required. As such, the employer contends that this proposal relates to the appointment, appraisal, promotion, and deployment of resources as well as to the organization of the public service or the assignment of duties to employees.

[20] The employer also submits that the provision of data, beyond the scope of what is provided under article 11 of the collective agreement applicable to the previously certified “Office” bargaining unit, is in essence a new demand that has not been the subject of negotiations. Section 150(2) of the Act excludes from the scope of the arbitration board elements such as this demand that are newly introduced.

[21] The bargaining agent submits that this proposal does not infringe upon the prerogative of the employer. It states that the definitions are merely descriptive. They identify and describe certain classes of employees without in any way restraining the employer’s full authority and entitlement to determine which person will, as a result of the exercise of its prerogative, fall into each of those described classes. The definitions describe the effect of the exercise of the employer’s prerogatives, without in any way infringing upon their exercise. The data generated by including these descriptive definitions will be of utility to the bargaining agent in several ways and should be of assistance to the parties in their future labour relations and collective bargaining.

[22] As for the definition of “term employee”, the bargaining agent submits that the proposed language is explanatory and that it merely articulates a factual reality. It states that under a collective agreement or arbitral award, only those “term employees” who are not excluded from a bargaining unit by the operation of paragraph (g) of the definition of “employee” in s. 2(1) of the Act can be contemplated by the bargaining agent’s proposed definition. The definition does not impermissibly bring excluded term employees into the bargaining unit, it does not alter the employer’s entitlement to engage term employees, and it does not restrict the employer’s freedom to determine the duration of the term employment engagements into which it chooses to enter. By definition, term employment is of fixed (predetermined) duration and fulfils a short-term need.

[23] I do not agree with the bargaining agent’s arguments in support of its proposal. The proposal would restrict and impact the employer’s prerogative to assign duties to employees by enshrining differences between full- and part-time employees within the collective agreement. The proposal would also affect the employer’s ability to hire and assign work to term employees for any reasons and in any manner permitted by law.

[24] As for the issue of the provision of data, this is a new demand that was not the subject of negotiation.

[25] As such, these proposals would have an effect contemplated in ss. 150(1)(e) and 150(2) of the Act.

[26] Accordingly, this proposal is not included in the terms of reference.

C. Bargaining agent’s proposed amendment to clause 20.01

[27] The proposed language of the clause reads as follows:

20.01 The Employer recognizes the importance of retaining the services of qualified employees. In the event that hours of work are eliminated for an indeterminate ~~part-time~~ employee, the Employer will endeavour to offer that employee other available ~~field~~ survey work for which the employee is qualified, ~~within a reasonable geographic area, as determined by the Employer~~, so that the employee can continue to work from his/her residence.

[28] The employer submits that the proposal limits the authority of the Chief Statistician to manage its operations, prescribe rules and instructions, and employ the necessary personnel as required, contrary to ss. 150(1)(b), (c), (d), and (e) of the Act, as well as ss. 4(5)(c), 5(1), and 7(1) of the SA.

[29] The bargaining agent responded to the employer’s objection to including the term “part-time” in this clause by amending its proposal as noted at paragraph 27 of these terms of reference.

[30] I find that the bargaining agent’s proposal would limit the employer’s authority to determine the kind of survey work to be assigned and to define the scope of the area where that work could be assigned. As such, the proposal would restrict the employer’s authority to establish parameters in how it organizes and manages its operations as well as how it assigns duties to employees, contrary to s. 150(1)(e) of the Act.

[31] Therefore, this proposal is not included in the terms of reference.

D. Bargaining agent’s proposed amendments to clauses 20.06, 20.08, and 20.10

[32] The proposed language of the clauses reads as follows:

20.06 A person who has been laid-off pursuant to clause 20.04 is entitled to a priority for appointment without competition to a position in SSO for which in the opinion of the Employer, which shall not be unreasonably exercised, he/she is qualified. The employer shall in good faith consider providing these t~~his~~ priority appointments ~~is accorded~~ to employees in descending order of their years of service for one (1) year following the lay-off date.

...

20.08 If an indeterminate employee accepts an appointment to a lower level where the maximum rate of pay is less than the employee’s previous rate of pay, that employee shall be appointed to the maximum rate of pay of the lower level. Such employees shall be entitled to a priority for appointment to positions at his/her previous level in their respective region. ~~Priority appointments shall be offered to such employees in order of years of service.~~ The Employer shall in good faith consider offering such priority appointments to employees in descending order of their years of service.

...

20.10 Nothing in the foregoing shall restrict the Employer’s right to engage or appoint persons to meet short-term, ~~non-recurring~~ requirements. However, employees whose employment was terminated pursuant to clause 20.04 shall be given priority ~~in order of years of service~~ even for these short-term work opportunities. The Employer shall in good faith consider offering such short-term work opportunities to employees in descending order of their years of service.

[33] The employer states that the bargaining agent’s proposal, if accepted, would force it to consider providing the benefit based on years of service. In essence, its view is that the bargaining agent seeks to impose a new requirement on it. As such, the bargaining agent is attempting to have referred to the arbitration board revised demands that would establish a new term or condition of employment, contrary to ss. 150(1)(a), (b), (c), and (e) of the Act and in conflict with ss. 4(5)(c), 5(1), and 7(1) of the SA.

[34] Furthermore, the employer argues that based on the bargaining agent’s submission with respect to the proposed change to the title of the interviewer position, SSO’s classification structure comprises only a single level. As such, there is no possibility of appointment to the lower-level position. In that context, clause 20.08 has no practical application. Therefore, there is no need to refer this matter to the arbitration board.

[35] The bargaining agent submits that this proposal does not infringe upon the prerogative of the employer. The amended language provides an option for the employer to consider seniority but does not provide an obligation to apply it.

[36] I find that the employer has demonstrated that the proposals would be contrary to s. 150(e) of the Act. The proposals create mandatory requirements. As such, they impose new requirements on the employer and establish new terms and conditions of employment with respect to how the employer appoints employees, organizes its workplace, and assigns duties to positions and persons employed in the public service.

[37] Accordingly, these proposals are not included in the terms of reference.

E. Bargaining agent’s proposed amendment to clause 23.02, and new clause 23.22

[38] The proposed language of clause 23.02 and the new clause 23.22 read as follows:

23.02 Nothing in this Agreement ~~article~~ shall be construed as guaranteeing minimum or maximum hours of work. The Employer shall in good faith consider not reducing the hours of work of an employee permanently.

...

NEW 23.22 As the parties recognize the transitional nature of merging the two units together and notwithstanding the hours of work provisions in this collective agreement, the Employer shall in good faith consider assigning employees originally hired as RO Interviewers (Data Collection Agents) field work on voluntary basis and employees originally hired as Field Interviewers (Data Collection Officers) RO work on voluntary basis.

[39] The employer submits that the bargaining agent seeks to impose new requirements on it in determining the hours of work by requiring it to consider in good faith not to reduce hours of work permanently. The employer is of the view that as a minimum, the demands are contrary to s. 150(1)(e) of the Act and in conflict with ss. 4(5)(c), 5(1), and 7(1) of the SA.

[40] The bargaining agent states that these proposals do not infringe upon the prerogative of the employer. With respect to clause 23.02, it argues that the language provides an option for the employer to consider maintaining employees’ hours of work but does not provide an obligation to do so. As for clause 23.22, it states that the language requires the employer to consider applying this transitional measure but does not provide an obligation to do so.

[41] I find that the bargaining agent’s proposals would impose new requirements on the employer with respect to how it determines hours of work and how it assigns work to its employees. Doing so would affect and restrict the manner in which the employer organizes its workforce and assigns duties to its employees, contrary to s. 150(1)(e) of the Act.

[42] Consequently, these proposals are not included in the terms of reference.

F. Employer’s proposal to remove clause 23.20

[43] The employer proposes deleting clause 23.20, as follows:

23.20 Notwithstanding clause 23.18, where operational requirements permit, the Employer will endeavour to offer additional work available at a work site to readily available qualified employees at the work site, irrespective of the nature of the survey, prior to hiring additional staff. Subject to the foregoing, the Employer may hire additional staff and is not precluded from hiring additional staff prior to providing employees with full time hours.

[44] The bargaining agent submits that the employer’s proposal would alter or eliminate an existing term or condition of employment that is encompassed by s. 150(1)(e) of the Act.

[45] The employer argues that the proposal would not introduce a new requirement on the parties. Rather, it would remove a limitation. It submits that this proposal does not conflict with s. 150(1)(e) of the Act or the SA.

[46] I find that s. 150(1)(e) of the Act must be read together with s. 7 of the Act, which states as follows:

Right of employer preserved

Maintien du droit de l’employeur

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

7 La présente loi n’a pas pour effet de porter atteinte au droit ou à l’autorité du Conseil du Trésor ou d’un organisme distinct quant à l’organisation de tout secteur de l’administration publique fédérale à l’égard duquel il représente Sa Majesté du chef du Canada à titre d’employeur, à l’attribution des fonctions aux postes et aux personnes employées dans un tel secteur et à la classification de ces postes et personnes.

[47] To give effect to s. 7, the limitation provided in s. 150(1)(e) cannot be read so as to prevent an employer from presenting a proposal that would impact its ability to organize the public service, assign duties, or classify positions and persons.

[48] The employer’s proposal is consistent with its right to organize its workforce and assign duties.

[49] For these reasons, I find that this proposal can be included in the terms of reference.

[50] For all of the above reasons, I make the following order.

(The Order appears on the next page)

III. Order

[51] The matters in dispute on which the arbitration board shall make an arbitral award are those set out in schedules 1 to 7 inclusive, which are attached to this decision, subject to the following exceptions:

· the bargaining agent’s proposals with respect to the change of title from “Interviewers” to “Data Collection Agents”, article 2 (definition of “employee”) and clauses 20.01, 20.06, 20.08, 20.10, 23.02, and 23.22, as addressed at paragraphs 13 to 42 of these terms of reference;

· the withdrawn proposals mentioned at paragraph 6 of these terms of reference related to the following:

o article 2 (definition of “layoff”)

o clause 20.04 (Job security)

o clause 20.11 (Job security)

o clause 23.18 (Hours of work)

o clause 23.19 (Hours of work)

o clause 23.21 (Hours of work)

o annex XX (Conversion from term to indeterminate employment); and

· any proposals that are no longer in dispute.

[52] Should any jurisdictional question arise during the course of the hearing as to the inclusion of a matter in these terms of reference, it must be submitted without delay to the Chairperson of the Federal Public Sector Labour Relations and Employment Board who is, according to s. 144(1) of the Act, the only person authorized to make such a determination.

June 29, 2022.

Edith Bramwell, Chairperson,

Federal Public Sector

Labour Relations and Employment Board

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