Date: 20241114

File: 561-34-47340

 

Citation: 2024 FPSLREB 155

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

Complainant

 

and

 

Canada Revenue Agency

 

Respondent

Indexed as

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

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

Before: Audrey Lizotte, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Dulce Cuenca, Professional Institute of the Public Service of Canada

For the Respondent: Richard Fader and Larissa Volinets Schieven, counsel

Decided on the basis of written submissions,

filed May 5 and June 13, 2023.

REASONS FOR DECISION

I. Complaint before the Board

[1] This matter concerns an unfair-labour-practice complaint that the Professional Institute of the Public Service of Canada (“the complainant”) made against the Canada Revenue Agency (“the respondent”).

[2] The complainant is the certified bargaining agent for the employees of the respondent who are governed by the collective agreement for the Audit, Financial and Scientific (AFS) group expiring on December 21, 2026 (“the collective agreement”), and the previous agreement that expired on December 21, 2022.

[3] In its complaint on May 5, 2023, the complainant alleges that the respondent committed an unfair labour practice within the meaning of s. 185 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) when it refused to post the complainant’s notification of its May 3, 2023, annual general meeting (“the AGM notice”) on its Ontario Region Hub and InfoZone (collectively, “the intranet”). The complainant claims that these are electronic bulletin boards within the meaning of clause 27.01 of the collective agreement. That clause provides as follows:

 

[4] The complainant claims that the respondent unreasonably withheld its approval under clause 27.01, which was contrary to past practice. It claims that the respondent’s refusal to post the AGM notice interfered with its administration and representation of its members, which breached s. 186(1)(a) of the FPSLRA.

[5] In terms of corrective action, the complainant seeks a declaration of the breach, an order requiring the respondent to post the notices on the intranet, an order that the decision of the Federal Public Sector Labour Relations and Employment Board (“the Board”) be sent to each member of the bargaining unit, and an order for damages.

II. The respondent’s preliminary objection

[6] In its response to the complaint dated June 13, 2023, the respondent submitted that the Board should refuse to determine the complaint under s. 191(2) of the FPSLRA since it involves a collective agreement and could be referred to adjudication under Part 2 of the FPSLRA.

[7] In the alternative, the respondent submitted that it did not violate s. 186(1)(a) of the FPSLRA by denying the request to post the AGM notice on its intranet. It argued that the FPSLRA’s prohibition on an employer’s participation or interference with the formation, administration, or representation of a bargaining agent does not create a positive obligation on it to facilitate the complainant’s communications with its members in its preferred manner.

[8] Accordingly, it requested that the complaint be dismissed.

III. The parties’ submissions on the preliminary objection

A. For the respondent

1. The Board should refuse to determine the complaint under s. 191(2) of the FPSLRA

[9] The respondent submitted that the intranet is a private network used to securely share information and resources with its employees. It stated that InfoZone contains a section dedicated to unions and collective agreements, where employees can locate their collective agreements and collective bargaining information. It contains links to the complainant’s websites, including for the AFS group. The respondent submits that apart from those links and updates, InfoZone does not contain bargaining agent information or updates.

[10] It submitted that InfoZone also contains regional hub webpages for each of its regions. The Ontario Region Hub contains information specific to each of the Tax Centres and Tax Services Offices in its Ontario Region, including the Western Ontario Tax Services Office, composed of two offices in Kitchener, one in London, and one in Windsor, Ontario.

[11] The respondent submitted that the complainant’s use of its facilities is governed by article 27 of the collective agreement, which provides among other things that it will make reasonable space available on bulletin boards, including electronic bulletin boards, for the complainant to post its official notices. It stated that the complainant has a bulletin board in each of the Kitchener Tax Services Offices on which it may post information.

[12] It submitted that since the intranet is not an electronic bulletin board, it had no obligation to agree to the complainant’s request to post the AGM notice. It denied the complainant’s allegation that the refusal was contrary to past practice.

[13] The respondent submitted that the Board should refuse to determine the complaint under s. 191(2) of the FPSLRA since it is based on clause 27.01 of the collective agreement. It argued that since clause 27.01 is a comprehensive and detailed description of the circumstances under which the complainant may use its facilities, resolving this dispute will require the substantive interpretation of the collective agreement, which is more appropriately addressed via a policy grievance under s. 220 of Part 2 of the FPSLRA.

[14] Accordingly, the respondent submitted that the Board should refuse to determine this complaint since it could be referred to adjudication under Part 2 of the FPSLRA.

2. There was no breach of s. 186(1)(a) of the FPSLRA

[15] The respondent submitted that in both the Financial Administration Act (R.S.C., 1985, c. F-11) and the Canada Revenue Agency Act (S.C. 1999, c. 17), Parliament has recognized the respondent’s right to control and manage its workplace. Its discretion in this respect, including over the use of its property, can be restricted only by statute or by a collective agreement provision.

[16] It submitted that s. 186(1)(a) of the FPSLRA does not require it to facilitate the complainant’s communications with its members in its preferred manner. Rather, s. 186(1)(a) prohibits the respondent from participating in or interfering with the complainant’s formation, administration, or representation of its members.

[17] The respondent submitted that clause 27.01 of the collective agreement explicitly sets out the complainant’s right to access and use its facilities. If the complainant wishes to expand that right, it is incumbent upon it to bring forward such a proposal in collective bargaining. It is an inappropriate use of the unfair-labour-practice provisions of the FPSLRA to attempt to obtain indirectly what the complainant has failed to obtain directly through bargaining.

[18] The respondent submitted that its conduct cannot reasonably be interpreted as participating in or interfering with the complainant’s formation, administration, or representation, particularly considering:

· the content of the AGM notice, which was related to internal bargaining agent business and not to collective bargaining or any dispute between the parties;

· the mature bargaining relationship in which the parties have negotiated comprehensive and detailed provisions regarding the complainant’s use of the respondent’s facilities; and

· the respondent did not prevent the complainant from sharing the AGM notice or otherwise communicating with its members, but rather simply declined to facilitate that communication on its intranet in the manner that the complainant preferred.

 

[19] The respondent submitted that thus, it did not interfere with the administration of the complainant’s organization, prevent it from contacting or communicating with its members, or disturb the parties’ equal footing with respect to information relevant to the collective bargaining relationship.

B. For the complainant

[20] On June 27, 2023, the Board’s Registry requested that the complainant provide, by no later than July 4, 2023, any response it might have to the respondent’s submissions. No response was received.

[21] On July 15, 2024, the Registry informed the parties that I had been assigned to this matter and of my intention to render a decision on the preliminary matter raised by the respondent, specifically, whether I should exercise my discretion under s. 191(2) of the FPSLRA and refuse to determine the complaint. The Registry provided the complainant with another opportunity to provide submissions; however, no response was received.

IV. Reasons

[22] The complainant alleges that the respondent committed an unfair labour practice within the meaning of s. 185 of the FPSLRA when it refused to post the complainant’s AGM notice on the intranet.

[23] Section 185 defines “unfair labour practice” as anything that is prohibited by ss. 186(1) or (2), 187, 188, or 189(1) of the FPSLRA. The complainant claims that the respondent violated s. 186(1)(a), which reads as follows:

 

[24] Under s. 190(1)(g), the Board is obliged to examine and inquire into any complaint made to it under s. 185. However, s. 191(2) permits the Board to refuse to determine a complaint involving a collective agreement. It reads as follows:

 

[25] By using the term “may” in s. 191(2), the legislator gave the Board discretion. I have chosen to exercise this discretion and to dismiss the complaint, for the reasons that follow.

[26] The subject of this complaint concerns the complainant’s use of the respondent’s facilities, including its intranet. As evidenced by clause 27.01 of the collective agreement, this issue has been the subject of collective bargaining between the parties. By agreeing to the terms of that clause, the parties agreed to the extent to which the complainant may be allowed to use those facilities for its business. As a result, if the parties have a dispute about that clause, the recourse appropriately lays with the adjudication process contemplated in Part 2 of the FPSLRA.

[27] Further, I note that the collective agreement provides that the complainant may present a policy grievance in the manner prescribed in the agreement and within a prescribed time limit of 25 days of gaining knowledge of the act, omission, or other matter that gave rise to that policy grievance (clause 34.41). Were the Board to allow the complainant to use s. 190 of the FPSLRA to obtain redress for an alleged violation of the collective agreement, it would essentially allow the complainant to circumvent the process that was agreed upon to resolve such disputes.

[28] Lastly, the corrective actions sought in the complaint could all be sought as part of the adjudication process. On that point, I note that one of those is an order to post the AGM notice, even though the annual general meeting had already taken place two days before the complaint was made. I interpret this as further evidence that truly, the complainant seeks an order that would clarify its right to use the intranet going forward. Since that matter has been collectively bargained, any dispute as to its application more appropriately resides in a policy grievance based on the agreed-to process in the collective agreement.

[29] Since I have decided that the complaint should be dismissed under s. 191(2) of the FPSLRA, it is not necessary for me to address the respondent’s alternative submissions on the scope of its obligations under s. 186(1)(a).

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

(The Order appears on the next page)

V. Order

[31] The respondent’s preliminary objection is allowed.

[32] The complaint is dismissed.

November 14, 2024.

Audrey Lizotte,

a panel of the Federal Public Sector

Labour Relations and Employment Board