Parliamentary Employment and Staff Relations Act Annual Report 2023-2024

Land acknowledgment

We respectfully acknowledge that our offices are situated on the ancestral and unceded territories of the Anishinaabe Algonquin Nation. These lands have been stewarded through generations by the Algonquin people, whose history, language, and culture continue to influence our vibrant community.

As we conduct hearings and mediations across Canada, we also recognize the diverse Indigenous peoples whose enduring relationships with their traditional territories are fundamental to their identities and cultures. We extend our gratitude for the opportunity to live, work, and learn on these territories.

We acknowledge the resilience and strength of Indigenous peoples, who have faced the devastating impacts of colonization and cultural genocide. This acknowledgment is a reminder of our responsibilities to address these injustices and to strive for truth and reconciliation.

Recognizing the land is an essential step toward reconciliation, but it is not the final destination. The Board is committed to decolonizing its processes, promoting justice, and fostering an environment of inclusivity and respect.

We believe that everyone has a role to play in the ongoing journey toward reconciliation. We invite everyone to join us in this commitment, as we strive to honour the past, engage with the present, and look forward to a future of shared understanding and improved relations.

Message from the Chairperson

I am pleased to share the Parliamentary Employment and Staff Relations Act Annual Report for 2023-2024.

Behind each case are people seeking fair and just outcomes, reflecting the rich diversity of public services workplaces and the public service community. We remain steadfast in our commitment to service excellence.

I am very pleased to announce that ongoing progress has been made in reducing PESRA file inventory in each of the last four fiscal years. This marks the fourth consecutive fiscal year of file inventory reduction. Today, our file inventory has diminished to less than half what it was four years ago.

In 2023-2024 reporting period, initiatives from the prior year were established as standardized services offered to all parties before the Board, with targeted efforts to reduce our long-term inventory. This includes settlement conferences, early intervention by officers of the Board (ER officers), and ongoing long-term inventory review. The Board will continue to offer these services in the coming year to ensure progress continues, and will ensure open access to these services for PESRA filing parties with an eye to the future.

I extend my deepest gratitude to the members of our Board and the dedicated staff of the Board’s Secretariat for their steadfast support and persistent pursuit of excellence. Witnessing such a remarkable display of unity and cooperation while striving toward a common goal is genuinely inspiring. It is with pride and enthusiasm that we collectively look forward to the year ahead and the opportunities it brings to better serve the Canadian public.

Sincerely,
Edith Bramwell
Chairperson

Who we are

Composition

Chairperson:

• Edith Bramwell

Vice-Chairpersons:

• Marie-Claire Perrault
• Amélie Lavictoire

Full-time Board members

• Adrian Bieniasiewicz, Board Member
• Pierre Marc Champagne, Board Member
• Caroline Engmann, Board Member
• Goretti Fukamusenge, Board Member
• Bryan R. Gray, Board Member
• Patricia Harewood, Board Member
• Chantal Homier-Nehmé, Board Member
• John G. Jaworski, Board Member
• Audrey Lizotte, Board Member
• Ian Mackenzie, Board Member
• Christopher Rootham, Board Member
• Nancy Rosenberg, Board Member

Part-time Board members

• Joanne Archibald, Board Member
• Fazal Bhimji, Board Member
• Deborah Cooper, Board Member
• Guy Giguère, Board Member
• Guy Gregoire, Board Member
• David Jewitt, Board Member
• Steven B. Katkin, Board Member
• James Knopp, Board Member
• David P. Olsen, Board Member
• David Orfald, Board Member
• Renaud Paquet, Board Member
• Leslie Anne Reaume, Board Member
• Augustus M. Richardson, Board Member

The Board’s Mandate, Commitment and Jurisdiction

The Board’s mandate under the Parliamentary Employment and Staff Relations Act (PESRA)

Among other legislation, the Board administers Part I of the PESRA and aims to resolve disputes that arise between parliamentary employees and their employer. The PESRA covers employment and labour relations at the Library of Parliament, the House of Commons, the Senate, the Office of the Senate Ethics Officer, the Office of the Conflict of Interest and Ethics Commissioner, the Parliamentary Protective Services, and the Parliamentary Budget Officer.

Part I of the PESRA gives parliamentary employees the right to form a union and to engage in collective bargaining to establish their terms and conditions of employment. It also gives them the right to file grievances about those conditions and, in certain cases, to refer them to adjudication before a neutral third party. Under the PESRA, the Board can also hear applications for certification, unfair-labour-practice complaints, and designations of persons employed in managerial and confidential capacities. It can also hear grievances about the interpretation and application of collective agreement or arbitral award provisions, disciplinary action resulting in a suspension or financial penalty, the demotion of an employee, the denial of an appointment, the classification of an employee, and all forms of termination of employment except rejections on probation during initial appointments.

The PESRA also gives the Board the authority to hear grievances about contraventions of regulations under the Accessible Canada Act.

Types of matters heard under the PESRA

The following types of matters may be adjudicated under the PESRA:

• applications for certification or the revocation of certification, or applications for the designation of a person employed in a managerial or confidential position;
• unfair-labour-practice complaints;
• grievances related to the interpretation or application in respect of the employee of a collective agreement provision or an arbitral award;
• grievances against a disciplinary action resulting in a suspension or financial penalty or against a termination of employment for a reason other than a rejection on probation for an initial appointment;
• grievances about a demotion, a denial of an appointment, or classification (i.e., the parties select an adjudicator who is not a Board member to hear and determine such grievances);
• grievances about a contravention of the regulations under the Accessible Canada Act if the employee has been adversely affected as a result of the contravention; and
• references under s. 70 of the PESRA, seeking the enforcement of an obligation under the collective agreement or an arbitral award that cannot be the subject of a grievance filed by an individual employee. The reference can be made by an employer or a bargaining agent.

The Board’s work

The Board supports fair and productive public sector workplaces by providing a range of efficient dispute resolution processes. Robust federal public service workplaces support all Canadians.

Our decisions often set precedents that guide the interpretation and application of labour laws, not just in the federal public sector but also in other jurisdictions across Canada. Our work contributes to the development of Canadian labour law and promotes consistency and fairness in its application.

Hearing and deciding grievances, staffing complaints and other disputes

• Through formal oral and written hearing process, the Board receives evidence from the parties, while ensuring that all parties have an equal right to present their evidence and make their submissions.
• Board members provide carefully articulated decisions based on their consideration of the evidence and submissions.

Providing other pathways to resolution

• Informal resolution processes give parties more control in resolving their collective bargaining, grievance, staffing and other disputes.
• These informal processes are often quicker and less expensive and allow for more privacy and confidentiality. This enhances access to justice and allows the Board to focus on cases that require a more formal approach.
• Through these resolution pathways, the Board fosters open, respectful communication, and fair, transparent employment and staffing practices.
• Mutually agreed resolutions eliminate the need for a Board decision which imposes a solution on the parties.
• The Board’s longstanding voluntary, formal mediation process focusses on discussions guided by a neutral, unbiased mediator.
• Board members continue to resolve cases through active but informal intervention, in case management conferences, and through the blending of mediation and adjudication processes.

Administering collective bargaining

• The Board administers collective bargaining processes for the federal public sector (including the RCMP and Parliament), as covered by the FPSLRA and the PESRA.
• Collective bargaining is a constitutionally protected process. Federal public institutions and approximately 274 000 employees across at least 100 Board-certified bargaining units negotiate working conditions, salaries, and benefits on a cyclical basis.
• Federal public sector agreements often serve as benchmarks that shape the standards and expectations of the labour market as a whole.
• The Board reviews and supports collective bargaining in many ways, including:
  • certification of new bargaining units;
  • determination of proposed changes to bargaining units;
  • dealing with bargaining unit exclusions and essential services disputes;
  • administering interest arbitration boards;
  • dealing with complaints related to unfair labour practices, such as bad faith bargaining, and failures to provide fair representation.

The Board’s Performance

Over the last four fiscal years, the Board has successfully tackled its file inventory, a 55% reduction during the same period. File closures have consistently exceeded files received.

In 2023-2024, 10 new files were referred under the PESRA – 1 group grievance, six grievances relating to the interpretation or application of a collective agreement and 3 complaints (failure to adhere to a decision, restrictions on leave for employees). Year-to-year the Board received more individual than group grievances, which was the dominant file type in 2022-2023.

File Closures

In 2023-2024, 12 files under the PESRA were closed. Of those, 8 were withdrawn, 2 resulted in a decision being issued, 1 was settled between the parties and 1 was closed at the direction of the Board. The net clearance rate for the 2023-2024 fiscal period stands at 120%, showing that the inflow and management of PESRA-related files has been manageable.

Overview of the case file inventory

Thirty-two (32) files were carried forward from the previous fiscal year. Taking into account the 10 new referrals and 12 closures, 30 files will be carried forward into the next fiscal year, including 17 individual grievances, 10 complaints, 1 application, and 2 policy grievances.

Twenty-four (24) of those files involve the Parliamentary Protective Services, 3 involve the Senate, 2 involve the House of Commons, and 1 involves the Library of Parliament.

Number of hearings scheduled

Of the 6 hearings initially scheduled for hearing during the 2023-2024 reporting period, 50% were held while the remaining 50% that did not proceed were either settled or withdrawn.

Resolutions prior to a hearing can occur for several reasons such as settlements or settlement discussions, withdrawals, or other reasons such as longer than expected pre-hearing preparations, or the unexpected unavailability of a party or a witness.

The graphic below illustrates the outcomes for the files scheduled for hearing.

Mediation

Four (4) mediations were held in 2023-2024 and 3 resulted in a settlement.

Collective bargaining

In the 2023-2024 fiscal year, the Board established five arbitration boards at the requests of the parties. In November 2023, one group reached a tentative agreement, not requesting for an award to be issued. The remaining four arbitration boards started their work in fiscal year 2023-2024 and will complete it in the next fiscal year. To note, the consolidated arbitration hearing involving the Library Sciences group and Library Technician group represented by the Public Service Alliance of Canada initiated in 2022-2023 fiscal year completed this year with the issuance of the arbitral award on October 12, 2023. However, a submission for Judicial review of the award was filed at the Federal Court of Appeal in November 2023 and remains outstanding.

The open court principle

The open court principle is a fundamental element of the Canadian justice system and is a hallmark of democratic societies. It ensures the transparency and accountability of the judicial system by providing the public the right to observe the process and access the records.

In accordance with the open court principle, the Board’s hearings are open to the public, except in unusual circumstances. The Board follows its own Policy on Openness and Privacy to foster transparency in its processes, as well as accountability and fairness in its proceedings.

Moving Forward

As we move forward, we will continue to prioritize improved and timely access to justice through respectful, inclusive, and fair processes. We will stay the course and continue to bring down our inventory of files.

Using all the tools at our disposal, the Board will capitalize on the momentum it gathered these past years, to provide timely access to justice and promote harmonious labour relations and employment practices in the Parliamentary sector.

Key decisions issued by the Board

Singh v. Senate of Canada, 2023 FPSLREB 80

Non-compliance with a decision of an adjudicator with respect to a production order

Pursuant to s. 13 of the Parliamentary Employment and Staff Relations Act (PESRA), the complainant alleged that the Senate of Canada failed to give effect to the decision of the adjudicator reported above in 2023 FPSLREB 89 with respect to the production of two emails in the context of a grievance. The Senate did not produce the emails by the deadline established by the adjudicator. Rather, it argued that only the Senate could authorize the disclosure of documents over which parliamentary privilege has been claimed and that it had not yet considered the order because the Senate was not in session. As such, according to the Senate, any complaint of non-compliance with respect to the adjudicator’s order was premature. The Board found that the complaint was not premature, and that the Senate failed to give effect to the production order. The Board determined that there was no certainty that production would be completed, nor was there any certainty as to the date by which a decision by the Senate with respect to producing the emails might be made. As such, pursuant to s. 13(2) of the PESRA, the Senate was given a final deadline to give effect to the production order.

Ultimately, the Senate did not comply with the Board’s final deadline to give effect to the production order. As such, pursuant to s. 14 of the PESRA, the Board caused a copy of its order and a report of the circumstances to be laid before each House of Parliament: on November 9, 2023, before the House of Commons; and on November 21, 2023, before the Senate.

Complaint allowed.

Singh v. Senate of Canada, 2023 FPSLREB 89

Production order – Parliamentary privilege

Mr. Singh grieved his termination of employment from the Senate of Canada. He submitted a notice of motion seeking an order that the Senate produce certain email communications between senators, pursuant to s. 66.1 of the Parliamentary Employment and Staff Relations Act (PESRA).

In its submissions, the Senate did not contest the arguable relevance of the emails but took the position that these communications were a confidential exchange in a non-public setting between the members of a subcommittee of the Committee on Internal Economy, Budgets and Administration (CIBA). Therefore, according to the Senate, the emails were parliamentary deliberations or proceedings and subject to parliamentary privilege.

Under the two-step test used to determine whether parliamentary privilege is applicable, the onus is on the party claiming the privilege to demonstrate both its existence and its scope; where the existence and scope of the privilege is not authoritatively established, as a second step, the claim is tested against the doctrine of necessity (Canada (House of Commons) v. Vaid, 2005 SCC 30).

The adjudicator determined that the Senate had not established its claim of parliamentary privilege. While parliamentary proceedings are an established category of parliamentary privilege, the adjudicator did not accept that the emails at issue were parliamentary proceedings or that the scope of the privilege over parliamentary proceedings extended to the emails in question. The Senate did not advance an argument that the privilege was necessary. Consequently, the adjudicator concluded that the Senate did not establish it claims of parliamentary privilege over the emails and, as such, the Senate was ordered to produce the emails requested.

Motion to produce documents granted.