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Annual Report 2005-2006 Public Service Labour Relations Board
Public Service Labour Relations Board
Annual Report 2005-2006
The Honourable Beverley J. Oda, P.C., M.P.
Minister of Canadian Heritage and Status of Women
House of Commons
Ottawa, K1A 0A6
It is my pleasure to transmit to you, pursuant to section 251 of the Public Service Labour Relations Act, the first Annual Report of the Public Service Labour Relations Board, covering the period from 1 April 2005 to 31 March 2006, for submission to Parliament.
Ian R. Mackenzie
Table of Contents
Public Service Labour Relations Board, 2005-06
Message from the Acting Chairperson
Message from the Former Chairperson
Part One–About the Public Service Labour Relations Board
Our Three-Pronged Mandate
Our Clients and Stakeholders
Overview of Key Changes Introduced by the Public Service Labour Relations Act
Members of the Public Service Labour Relations Board
Part Two–The Year in Review
Compensation Analysis and Research Services
Part Three–Governance, Management and Accountability
Table 1: Number of Bargaining Units and Public Service Employees by Employer and Bargaining Agent
Table 2: Number of Bargaining Units and Public Service Employees by Bargaining Agent
Members of the Public Service Labour Relations Board
Full-time Board members
Part-time Board members
Public Service Labour Relations Board
- Yvon Tarte
- Ian R. Mackenzie
- Sylvie Matteau
- Georges Nadeau
- Full-time Members:
- Dan Butler
- Barry Done
- Léo-Paul Guindon
- Dan Quigley
- Jean-Pierre Tessier
- Part-time Members:
- Bruce Archibald
- Ruth Elizabeth Bilson
- Francine Chad Smith, Q.C.
- Innis Christie
- Mary Ellen Cummings
- Joan Gordon
- Thomas Kuttner, Q.C.
- Paul E. Love
- Kenneth E. Norman
- John J. Steeves
- Denise Wilson
PRINCIPAL STAFF OFFICERS OF THE BOARD
- Executive Director of the Board and General Counsel:
- Pierre Hamel
- Director, Dispute Resolution Services:
- Guy Baron
- Director, Registry Operations and Policy:
- Susan Mailer
- Director, Corporate Services:
- Denise Benoit
- Director, Compensation Analysis and Research Services:
- Guy Lalonde
- Director, Financial Services:
- Robert Sabourin
Message from the Acting Chairperson
On April 1, 2005, a new Public Service Labour Relations Act (PSLRA) came into force, expanding the mandate of the Public Service Labour Relations Board (the Board), and yielding a number of important changes in the public service labour relations landscape.
I am pleased to submit to Parliament the Annual Report of the Public Service Labour Relations Board for 2005–06.
Under the PSLRA, the Board is required to prepare an annual report on the administration of the Act during the previous year. But we see our Annual Report as something more than a document that satisfies a legal requirement. It is also a key opportunity to communicate our mission, accomplishments and challenges to our clients and stakeholders.
An important part of the Board’s mission is to raise awareness of the Board’s role, services and jurisprudence. This takes on even greater importance given that 2005–06 was the Board’s first year operating under new legislation with an expanded mandate. The 2005–06 Annual Report is thus an opportune occasion to provide information about the changes brought about by that legislation.
I am pleased to say that the new Board has built on the solid base left by its predecessor, the Public Service Staff Relations Board. It continues to serve as an independent quasi-judicial tribunal mandated to administer the collective bargaining and grievance adjudication systems in the federal public service.
In this capacity, it carries on adjudicating grievances, complaints, and applications as well as offering mediation, conciliation and arbitration services in the public service. But it has also been given a new role performing compensation analysis and research, in support of the collective bargaining process.
Through these three main functions, we support harmonious labour relations in the public service. Our work serves the public interest by minimizing the possibility of labour unrest that can disrupt the delivery of government programs.
The Board promotes and supports the approach to labour relations set out in the new Act, which emphasizes greater collaboration and sustained dialogue between labour and management. By taking more proactive efforts to resolve disputes informally, the goal is to reduce the use of adversarial processes.
In 2005-06 we faced the challenge of introducing and administering new legislative and regulatory frameworks, while at the same time continuing to process cases submitted under the former Public Service Staff Relations Act. We also continued to see an increase in the volume and complexity of grievances being referred to us for adjudication.
As Acting Chairperson of the Board, I wish to express my sincere appreciation to all employees, managers and Board members. It is thanks to their unceasing support, commitment, and professionalism that we have successfully met our challenges in 2005–06, and can look forward to a bright future.
I also wish to pay tribute to Yvon Tarte, who was Chairperson of the Board throughout 2005–06. He retired after serving the Board with great dedication for 14 years—more than nine as Chairperson. Mr. Tarte was a distinguished leader who brought respect to the Board and was much admired and appreciated by clients and employees alike. His contribution to the Board was far-reaching and enduring. We wish him well in his retirement.
Ian R. Mackenzie
Message from the Former Chairperson
It was my great privilege to serve in 2005–06 as the Chairperson of the new Public Service Labour Relations Board, which was created with the enactment on April 1, 2005 of the new Public Service Labour Relations Act (PSLRA).
Having served as Chairperson of the former Board—the Public Service Staff Relations Board—I was proud to continue as Chairperson and be involved in what proved to be a smooth transition, as one organization picked up where the other left off. That the transition proceeded so well is a testament to the solid foundation that was established by the hard work and contributions of many individuals.
With the PSLRA came a new function for the Board—the collection, compilation, analysis and dissemination of compensation information in support of the collective bargaining and compensation determination processes in the public service. This, I believe, was recognition by Parliament of the relevance and importance of the Board’s mandate as a neutral and impartial third party in public service labour relations.
While the PSLRA introduced key changes to the Board, our core mission and values did not alter. We remained as committed as ever to promoting harmonious labour relations, conducting hearings in accordance with the law and the principles of natural justice, and providing impartial, honest, respectful, efficient and timely services. We continued to assist parties to resolve differences on their own. We sustained our efforts to be innovative and consultative in administering the legislation and in developing services that meet the needs of our clients and stakeholders.
I wish to take this opportunity to express my sincere thanks to the managers, employees, and Board members who supported me in my time as Chairperson, and as a Board member before that. I am extremely grateful for their expertise and dedication as we worked together to administer the collective bargaining and grievance adjudication systems in the federal public service. My thanks go out as well to the Board’s clients and stakeholders for their collaboration over the years. I appreciate their efforts to work with the Board for improved labour relations in the public service of Canada.
About the Public Service Labour Relations Board
The Public Service Labour Relations Board (the Board) is an independent quasi-judicial tribunal mandated by the Public Service Labour Relations Act to provide adjudication services, mediation services, and compensation analysis and research services for the public service of Canada.
Through its role adjudicating grievances and complaints, mediating disputes, supporting the collective bargaining process, and performing compensation analysis and research, the Board helps foster harmonious labour relations in the federal public service. This benefits Canadians by minimizing the possibility of labour unrest that can disrupt the delivery of government programs.
The Board came into being on April 1, 2005 with the enactment of the new Public Service Labour Relations Act (PSLRA). It replaced the Public Service Staff Relations Board (PSSRB), which had been in existence since 1967 when collective bargaining was first introduced into the public service of Canada.
Although the PSLRA effectively created a new Board with a new mandate, in fact the Board continues to provide many of the same services as the former PSSRB and build on its accomplishments and the solid body of jurisprudence it generated.
Grievances that were presented under the former Public Service Staff Relations Act (PSSRA) but not finally dealt with before the coming into force of the PSLRA continue to be dealt with according to the provisions of the former PSSRA. Such grievances are also subject to the P.S.S.R.B. Regulations and Rules of Procedure, 1993.
Our Three-Pronged Mandate
The Board and adjudicators of the Board hear and determine grievances, complaints, and labour relations matters brought before it under the PSLRA.
Mediators provided by the Board help parties reach collective agreements, manage their relations under collective agreements, and resolve complaints and grievances in an effort to avoid formal adjudication hearings.
Compensation analysis and research services
The Board conducts compensation analysis and research to be used by parties engaged in the collective bargaining process as well as by other public and private organizations and individuals.
Our Clients and Stakeholders
The Board serves federal public service employees, public service employers, public service unions, and the general public.
Public service employees
More than 200 000 unionized and non-unionized federal public servants are covered by the PSLRA.
Public service employers (federal government departments and agencies)
There are some 24 employers in the public service of Canada. Treasury Board is the employer for the vast majority of those working in federal government departments and agencies—152 771 employees. The remainder—57 111 public service employees—work for one of 23 separate employers.
Any one of these employers may be a party to an adjudication or mediation effort, and all are potential users of compensation analysis and research services provided by the Board.
Table 1 in Appendix 1 indicates the number of public service employees in non-excluded positions by employer and bargaining agent.
Public service bargaining agents
Approximately 20 bargaining agents have been certified to represent 86 bargaining units in the federal public service. The Public Service Alliance of Canada has been certified as the bargaining agent for 31% of these bargaining units, encompassing 66% of organized employees. A further 21% employees are represented by the Professional Institute of the Public Service of Canada, and the remaining 13% of employees are represented by other bargaining agents. The majority of the other bargaining agents represent one bargaining unit, and membership ranges from 10 to 10 000 employees.
Table 2 in Appendix 1 indicates the number of public service employees and the number of bargaining units represented by each certified bargaining agent.
The general public
Employees of the public service of Canada deliver a vast range of products and services to Canadians. More effective relationships between labour and management can prevent work disruptions and disputes that result in delays, interruptions, or deterioration in the quality of services and products Canadians rely on. An envir-onment that promotes increased collaboration between employers and employees can improve the ability of the public service to serve and protect the public interest.
Overview of Key Changes Introduced by the Public Service Labour Relations Act
The new PSLRA, which was proclaimed in force on April 1, 2005, is one part of a larger package of reforms in human resource management introduced into the federal public service. The new Act is specifically intended to foster more collaborative labour relations in support of healthy, productive public service workplaces. It recognizes that the relationship between labour and management benefits significantly from more dialogue, and less confrontation, between the parties.
Following is an overview of the key changes introduced by the PSLRA.
The new Act establishes a more comprehensive unfair labour practices regime and creates more comprehensive grievance and adjudication mechanisms.
Each department and agency must establish a labour-management consultation committee in co-operation with the bargaining agents.
The Act provides for the co-development of workplace improvements, a process whereby representatives of both the employer and employees work together to resolve workplace issues.
Each department and agency must establish an informal conflict management system in co-operation with the bargaining agents.
The parties must negotiate and conclude essential services agreements to protect the safety and security of the public during a strike.
When hearing grievances, adjudicators are empowered to consider aspects of the grievance that relate to discrimination within the meaning of the Canadian Human Rights Act, which was not possible under the PSSRA.
The interpretation or application of a collective agreement may be the focus of a policy grievance presented by the employer or the bargaining agent, or a group grievance presented by the bargaining agent.
The new Act requires a secret ballot within 60 days before a strike.
As a quasi-judicial statutory tribunal, the Board is independent of the government of the day. It is responsible to Parliament through a designated Minister, who is not a member of the Treasury Board. The designated minister is currently the Minister of Canadian Heritage and Status of Women.
The designated Minister is responsible under the PSLRA for tabling the Board’s annual report before Parliament each year and for signing documents required under the Financial Administration Act. The Minister is also the line of communication with the Governor in Council for purposes of making appointments to the Board.
Members of the Public Service Labour Relations Board
The members of the Board are responsible for administering the PSLRA by conducting hearings throughout Canada and rendering decisions. They are appointed by the Governor in Council for terms of no longer than five years. They may be re-appointed any number of times.
The Board, which meets monthly, is made up of
- the Chairperson, who is the Chief Executive Officer of the Board
- up to three Vice-Chairpersons
- additional full- and part-time members as required.
Board members may also serve as mediators. However, when they do so, they are not acting in their capacity as Board members.
Yvon Tarte served as the first Chairperson of the new Board. He retired in May 2006 after 14 years at the Board and its predecessor, the Public Service Staff Relations Board. He served as the Chairperson of both for more than nine years.
On May 8, 2006, Sylvie Matteau, Vice-Chairperson of the Board, was designated as Acting Chairperson by the Minister of Canadian Heritage and Status of Women.
On September 2, 2006, Ian R. Mackenzie, Vice-Chairperson of the Board, was designated as Acting Chairperson by the Minister of Canadian Heritage and Status of Women, following the expiry of Sylvie Matteau’s term as Vice-Chairperson.
Biographies of full-time Board members are included in Appendix 2, along with the names and terms of part-time Board members.
|Our Mission and Values|
Our mission is to promote and support harmonious employer-employee relations in the federal public service. We shall
In fulfilling our mission, we believe that
|Other Responsibilities of the Public Service Labour Relations Board|
In addition to the PSLRA, the Board administers the Parliamentary Employment and Staff Relations Act, which covers employees working for the Parliament of Canada.
The Board also administers certain provisions of Part II of the Canada Labour Code, which give employees recourse against reprisals for exercising rights under the Code.
Under an agreement with the Yukon government, the Board administers the collective bargaining and grievance adjudication systems under the Yukon Education Labour Relations Act and the Yukon Public Service Labour Relations Act. When performing these functions funded by the Yukon government, the Board acts as the Yukon Teachers Labour Relations Board and the Yukon Public Service Labour Relations Board, respectively.
As required by the PSLRA, the Board provides physical and administrative support services to the National Joint Council (NJC), an independent consultative body of employer and employee representatives. The NJC exists to determine public service-wide issues that do not lend themselves to unit-by-unit bargaining. The Board houses the NJC but plays no direct role in its operation.
The Year in Review
The Board’s caseload under adjudication services falls into three main categories: grievances, complaints, and other labour relations applications. In 2005–06, the Board received 1 736 new cases in these categories and carried forward 3 946 cases from previous years for a total of 5 682 active cases.
The Board issued 182 decisions or orders with respect to these cases. As Table 1 indicates, these break down as follows: grievance adjudication—73; determination of management and confidential positions—66; complaints of unfair labour practices—19; designation of essential services—8; complaints under the Canada Labour Code—3; certification—3; review of Board decisions—3; requests for extension of time to file—2; determin-ation of successor rights—2; and other decisions or orders, including filing Board orders—3. (Some decisions/orders applied to more than one case.)
Grievances make up the bulk of proceedings before the Board. Under the Public Service Staff Relations Act (PSSRA), grievances accounted for some 80% of the applications received annually. In 2005–06, grievances constituted 83% of the files received by the Board.
In the year under review, the Board received 1 439 new grievances. When added to the 3 591 cases that were carried forward from previous years, these brought the total number of active grievance cases to 5 030. Of these, 3 960 cases were carried forward to 2006–07. Seventy-three decisions were rendered in the year under review, some of which applied to more than one case.
In general, grievances are lodged with respect to “rights disputes.” These are disputes arising from the application or interpretation of collective agreements or arbitral awards, or from major disciplinary action, such as suspension or other financial penalty, and termination. Most often these are filed by represented employees, but in some cases, they can be filed by unrepresented employees.
Grievances are dealt with by way of a hearing before a member of the Board selected by the Chairperson. Board members sitting in this capacity are acting as adjudicators.
Hearings are generally held in the large metro-politan area nearest the grievor’s work location. The hearing is similar to, though less formal, than one held in a court of law:
Parties are usually represented. When the grievance deals with the interpretation of a collective agreement, the employee must have the support of and be represented by the bargaining agent. For other grievances, parties may represent themselves or choose someone else (including a lawyer) as a representative.
Grievors and employers can submit evidence, call witnesses, and make submissions in support of their positions.
Witnesses called by one party may be cross-examined by the other party. When grievors decide to testify, they may also be cross-examined.
Decisions rendered at adjudication hearings are legally binding but may be judicially reviewed on application to the Federal Court.
Expedited grievance adjudication is also made available to parties who want to save time and resources. It allows certain grievances to be dealt with without resorting to a full hearing process. In the expedited process, the parties normally file an agreed statement of facts and no witnesses are heard.
The parties agree that decisions rendered in the expedited process are not precedent setting and will not be subject to judicial review. Oral decisions are given to the parties at the hearing. A short written decision follows within five days.
In 2005–06, three additional bargaining agents agreed to proceed with expedited adjudication with the Treasury Board: the Canadian Merchant Service Guild; the Association of Canadian Financial Officers; and the Professional Association of Foreign Service Officers.
One bargaining agent has agreed to proceed with expedited adjudication with a separate employer, the Canadian Food Inspection Agency: the Professional Institute of the Public Service of Canada.
In 2005–06, 88 cases filed with the Board requested the expedited adjudication process. The five expedited adjudication hearings held during the year resulted in decisions affecting 34 cases.
Decisions of Interest
This section elaborates on several decisions of interest rendered by the Board in 2005–06. While they represent only a small portion of all the cases heard by the Board, they provide a good idea of the nature and complexity of matters coming before the Board.
Summaries and full text versions of all decisions rendered by the Board and its adjudicators can be found on the Board’s website at www.pslrb-crtfp.gc.ca.
Two key themes emerged from adjudication decisions in this period. The first centred on the issue of freedom of speech of public servants. The second related to the challenges of interpreting the transitional provisions of the PSLRA in the context of cases that overlapped two pieces of labour relations legislation.
Other cases of interest in 2005–06 dealt with the admissibility of video surveillance as evidence, security clearances, and termination for inad-equate performance.
Decisions of the Board and its adjudicators have been the subject of applications for judicial review, as well as applications for leave to appeal before the Federal Court, the Federal Court of Appeal, and, in one instance, the Supreme Court of Canada.
Freedom of Speech and Duty of Loyalty of Public Servants
In 2005–06, two key cases concerning the freedom of speech and duty of loyalty of public servants attracted public interest: Haydon v. Treasury Board (Health Canada), 2002 PSSRB 10 and Gendron v. Treasury Board (Department of Canadian Heritage), 2006 PSLRB 27.
Decisions rendered in these cases provide direction on the state of the law in relation to these matters.
In Haydon v. Treasury Board (Health Canada), the former Board was called upon to rule on the validity of a 10-day suspension imposed on the grievor after she made publicly critical comments about Canada’s decision to ban imported beef from Brazil because of the alleged risk to health from mad cow disease.
The grievor, a drug evaluator for Health Canada, argued that the suspension violated her right to freedom of speech, which is guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms, and referred her grievance to the PSSRB.
The employer argued that the grievor owed her employer a duty of loyalty, which she had violated, and that a 10-day suspension was the appropriate disciplinary measure.
After reviewing the jurisprudence related to the right to freedom of speech for public servants, the adjudicator ruled that there are situations in which a public servant’s freedom of expression prevails over the duty of loyalty to the employer. This would include situations in which the government is engaged in illegal acts, or where its policies jeopardize the life or safety of the public, and where the criticism does not adversely affect a public servant’s ability to effectively perform his or her duties, or the perception of that ability. The adjudicator concluded that the grievor’s actions did not fall within these exceptions.
The adjudicator also clearly indicated that in matters of legitimate public debate, the employee’s duty of loyalty cannot be absolute; it cannot be used to prevent public disclosure by government officials. However, a public servant raising a matter critical of government policy should first do so internally. In this case, the grievor had not raised the issue internally before speaking publicly about her concerns. The adjudicator therefore ruled that the grievor had violated her duty of loyalty to her employer and that a suspension was appropriate.
However, the adjudicator took into consideration the fact that the grievor had not sought out the media attention but had merely commented on the situation upon being approached by the media. As a result, the adjudicator reduced the suspension from 10 days to 5 days.
The grievor applied for judicial review of this decision before the Federal Court of Canada. It was dismissed in Haydon v. Canada (Treasury Board), 2004 FC 749. The grievor’s appeal before the Federal Court of Appeal and her application for leave to appeal before the Supreme Court of Canada were dismissed in Haydon v. Canada (Treasury Board), 2005 FCA 249 and Haydon v. Canada (Treasury Board) docket number 31153.
Gendron v. Treasury Board (Department of Canadian Heritage) was another case that involved freedom of speech for public servants, as well as freedom of association.
The grievor was a senior program officer with the Department of Canadian Heritage in the Official Languages Support Branch (OLSB). While employed, she became president of a new organ-ization aimed at promoting Quebec sovereignty.
The employer asked the grievor to resign as president because holding this post was perceived to be an apparent or potential conflict of interest with her duties at the OLSB, whose purpose is to promote Canadian unity. She was allowed to remain a member of the organization.
The grievor refused to resign as president of the organization because she felt the request constituted a violation of s.2 of the Canadian Charter of Rights and Freedoms, most notably her right to freedom of expression and freedom of association. As a result, the employer terminated her employment.
The adjudicator ruled that the employer had a duty to strike a balance between the grievor’s fundamental rights and her obligations toward the employer. In rendering her decision, the adjudicator stated that although a conflict of interest could be perceived between the grievor’s employment and her personal activities, the employer’s request constituted a violation of s.2 of the Charter and could not be considered a reasonable limit as set out in s.1 of the Charter.
The adjudicator ordered the employer to reinstate the grievor with pay and benefits and offer her a position at the same or an equivalent level that would not give rise to an apparent conflict of interest with her duties or with the objectives and programs of the Department of Canadian Heritage.
Transitional provisions were enacted under the Public Service Modernization Act (PSMA) to govern the handling of cases affected by the disbanding of the PSSRB and its replacement by the PSLRB on April 1, 2005.
In 2005–06, the Board had several opportunities to consider the intent and meaning of these transitional provisions. The following decisions illustrate how the Board interpreted and applied them.
International Association of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Workers v. Correctional Services Canada, Treasury Board and Don Graham, 2005 PSLRB 50
In this case, the complainants alleged that their members were being prohibited from wearing baseball caps and pins with the NAFCW (NAFCO) insignia and that this constituted discrimination.
While the complaint was filed under the PSSRA and was referred to the former Board, it was to be heard before the PSLRB. During the hearing, the question was raised as to which legislative scheme should apply in resolving the complaint, namely whether the reverse onus of proof in the new Act should apply.
The Board noted that there were substantive differences between some provisions of the PSSRA and the PSLRA—provisions that applied to the complaint and which affected the rights of the parties.
Upon reviewing s.39 of the PSMA, the Board ruled that once the complaint had been filed, the parties’ rights, including who may be named as a party and who bears the onus, crystallized. The Board held that absent clear legislative intent, these rights should not be interfered with. Therefore, the complaint was decided by the Board in accordance with the legislative scheme of the PSSRA.
Lamarche v. Marceau, 2005 PSLRB 153
In this case, the complainant had filed a complaint under s.23 of the PSSRA, alleging that his supervisor had not considered his candidacy for an acting appointment because of his union activities. He occupied a national position with the bargaining agent.
A hearing was held before the former Board and the complaint had been dismissed. However, the complainant filed a successful application for judicial review and the Federal Court of Appeal ordered a new hearing.
On April 1, 2005, after the decision had been rendered by the Federal Court of Appeal, but before the new hearing had taken place, the PSSRA was repealed and the PSLRA was enacted. A question again arose about the appropriate legislative scheme to be applied.
In rendering its decision, the Board concluded that the Federal Court of Appeal had decided the matter on the basis of the PSSRA. The effect of the Court’s decision was to put the parties in the position they would have been in prior to the hearing conducted by the PSSRB.
In addition, the Board ruled that the PSLRA, in including time limits for the filing of a complaint and in shifting the burden of proof, had affected rights and obligations of a substantive nature. As a result, the Board ruled that the appropriate legislative scheme to be applied in the matter was the former PSSRA.
Cloutier v. Leclair, 2006 PSLRB 5 and Rioux v. Leclair, 2006 PSLRB 12
In these two cases, the complainants each filed a complaint under paragraph 23(1)(a) of the PSSRA alleging that the respondent had attempted to prevent them from exercising their rights, both as individuals and as bargaining agent representatives.
The PSLRA came into effect during the proceedings. The Board reviewed the transitional provisions of the PSMA and concluded that the Board’s decision would have to be rendered under the legislative provisions of the former PSSRA, since the complaint had been filed prior to the PSLRA coming into force.
Similar conclusions were arrived at in Dubreuil v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 20, and in Garcia Marin v. Marshall, 2006 PSLRB 26.
Admissibility of a video surveillance tape in evidence
In Sabourin v. House of Commons, 2006 PSLRB 15, a Board adjudicator was called upon to rule on the admissibility of video surveillance evidence.
The grievor was a postal services employee for the House of Commons who had slipped at work and suffered a back injury. The employer questioned the injuries sustained by the grievor upon observing that his movements were not restricted when he visited the workplace to complete medical forms. The grievor’s doctor indicated that modified duties were not an option, but indicated that the employer could contact him with respect to work or rehabilitation assistance.
When the grievor was asked by the employer to attend a training session in the use of scanners, he refused because of alleged back pain. The employer then ordered a review of the grievor’s previous file of work-related injuries and ordered video surveillance of the grievor. As a result, the grievor was terminated. At the hearing related to the termination, the employer sought to introduce the surveillance tape as evidence.
In rendering his decision, the adjudicator set out the “reasonableness test” to be applied in determining the admissibility of video surveillance evidence. He explained that the reasonableness test is an objective test that has two requirements. The first requirement is that it must have been reasonable for the employer to undertake surveillance, and the second is that the surveillance must have been conducted in a reasonable manner.
In this case, the adjudicator applied the reasonableness test and concluded that it had not been reasonable for the employer to order video surveillance before speaking with the grievor’s doctor. Therefore, the adjudicator ruled that the video surveillance evidence was inadmissible.
In Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173, the grievor, who held an indeterminate position with Industry Canada, was offered an equivalent position at the Privy Council Office (PCO). The minimum level of secur-ity clearance required for the PCO job was Secret, which the grievor was granted when she joined the PCO. However, since she was restricted from working on Top Secret files, her employer filed for a Top Secret security clearance.
Not only did the Canadian Security Intelligence Service refuse to grant the grievor Top Secret security clearance, it also recommended that her Secret security clearance be revoked. The grievor’s Secret security clearance was then revoked, which meant she was no longer able to work at the PCO because she did not meet the minimum requirement.
As a result, the PCO terminated the grievor’s employment. The grievor argued that under the Treasury Board’s Security Policy, the PCO is required to consider reassigning employees in similar situations unless there are exceptional circumstances. The employer argued that there was indeed an exceptional circumstance because the grievor presented a threat to the security of the country due to concerns about her loyalty to Canada.
After hearing the arguments of both parties, the adjudicator ruled that the obligation to search for positions extended beyond the department in which the grievor was employed to the Treasury Board. In addition, the adjudicator ruled that the employer’s concerns about the grievor’s loyalty did not constitute evidence of an “exceptional circumstance.” As a result, the adjudicator ordered the employer to search diligently for another position for the grievor over a period of two months and to reinstate her to her leave-with-pay status until the search was completed. An application for judicial review against that decision is pending.
Termination for non-disciplinary reasons (inadequate performance)
In Morissette v. Treasury Board (Department of Justice), 2006 PSLRB 10, the grievor was hired to work as a legal secretary with the Department of Justice, originally in a determinate position and later in an indeterminate one. In the course of her employment, the grievor was given training and had meetings with several members of management to discuss her poor performance.
The grievor was experiencing personal difficulties, which she was given time off to deal with. She was informed about the Employee Assistance Program. While employed, the grievor had participated in secondment programs and had worked in two other sections of the department. Both secondments had been terminated prematurely because of dissatisfaction with the quality of her work. Upon termination of the second secondment, the employer decided to terminate the grievor’s employment.
Based on the facts presented, the adjudicator concluded that the grievor had been given adequate training and had the tools required to successfully complete her job, but she had failed to meet the minimum performance standard set out by the employer. However, even though the employer had met with the grievor on several occasions to discuss her inadequate performance, the employer had never informed her that failure to improve her performance by a fixed date could result in the loss of her job. Therefore, the adjudicator ordered the grievor reinstated.
Conflict of interest
In Assh v. Treasury Board (Department of Veterans Affairs), 2004 PSSRB 111, the grievor filed a grievance under s. 92 of the PSSRA alleging that his employer prohibited him from accepting a bequest from a former client and that this action was disciplinary in nature and had resulted in a financial penalty.
In a decision rendered August 11, 2004, the adjudicator allowed the grievance, having found no conflict of interest to exist after reviewing at length the principles applicable to the determination of whether the employee was in a situation of real or perceived conflict of interest.
However, an application was made to the Federal Court to review and set aside the decision. In its decision, the Federal Court concluded that the grievance did not relate to disciplinary action within the meaning of s. 92 of the PSSRA, and accordingly, the adjudicator was without jurisdiction to hear the grievance. As a result, the Federal Court quashed the decision and ordered that the grievance be remitted back to the adjudicator for reconsideration in accordance with the Court’s decision.
The grievance was remitted to the adjudicator, who dealt with the grievance in accordance with the PSSRA. In accordance with the Federal Court decision, the adjudicator ruled that he was without jurisdiction to hear the matter and dismissed the grievance.
In a separate and subsequent application filed by the employee, the Federal Court was called upon to review the employer’s decision to deny him the ability to accept the bequest and found the employer’s decision to be unreasonable. The Court cited with approval the “more probing analysis” of the adjudicator on that question.
Standard of judicial review of Board and adjudicators’ decisions
The decisions of the Board and its adjudicators are subject to judicial review before the Federal Court of Appeal and the Federal Court respectively. When reviewing an application for judicial review, the Courts take into consideration the standard of review that should be applied to decisions. The following cases deal with the standard of review applied by these courts to decisions rendered in 2005–06.
The Public Service Alliance of Canada applied to the Federal Court of Appeal for judicial review of the Board’s decision in the matter of Public Service Alliance of Canada v. Canadian Food Inspection Agency, 2004 PSSRB 155. In rendering its decision, the Court considered the issue of the applicable standard of review and concluded that “…it is generally accepted that the interpretation and application of a collective agreement, including references under the PSSRA alleging its violation, fall within the purview of the Public Service Staff Relations Board’s expertise and call for the highest degree of deference known as patent unreasonableness.”
This decision upholds several previous findings of the Court that a high degree of deference is warranted in Board decisions. It refused to accept the argument that the Supreme Court of Canada had altered the standard of review applicable in labour disputes through its decisions in Voice Construction Ltd. V. Construction & General Workers’ Union, Local 92,  1 S.C.R. 609 and Alberta Union of Provincial Employees v. Lethbridge Community College,  1 S.C.R. 727.
The standard of review applicable to decisions of adjudicators was also the subject matter of a judicial review before the Federal Court in the matter of Canada (Attorney General) v. Assh, 2005 FC 734, as outlined above. In applying the pragmatic and functional approach to the decision at issue, the Court determined that the standard of review to be applied with regard to questions of jurisdiction is “reasonableness simpliciter” but that the standard of review applicable to the merits of the case was “patent unreasonableness.”
The PSLRA allows employees, bargaining agents and employers to make a complaint to the Board under certain circumstances, such as when
an employer engages in unfair labour practices (for example, by interfering with the creation of a union or its administration or engaging in discrimination based on union membership);
a bargaining agent acts in bad faith in the representation of an employee;
an employer or bargaining agent fails to bargain in good faith.
The Board also receives complaints of disciplinary actions or discrimination resulting from the exercise of workplace health and safety rights under Part II of the Canada Labour Code by federal public service employees.
On April 1, 2005, 115 complaints were carried over from previous years. The Board received a total of 49 new complaints in 2005–06; 22 cases were disposed of by way of decision, and 101 were carried forward to 2006–07.
Decisions of interest on complaints
Duty of fair representation by bargaining agents
In Jakutavicius v. Public Service Alliance of Canada, 2005 PSLRB 70, the complainant filed two grievances, one against her employer’s decision not to pay her overtime, the other for failure to review the classification of two positions she held.
The complainant’s bargaining agent, the Public Service Alliance of Canada, represented her in relation to both grievances up to the final level of the grievance process, but decided not to refer her grievances to adjudication.
The complainant filed a complaint alleging that her bargaining agent had failed in its duty of fair representation in not referring the grievances to adjudication and in failing to inform her in a timely manner of her right to file a judicial review application against the final-level reply given to her classification grievance.
After reviewing the evidence presented, the Board found that the bargaining agent had analyzed the grievances diligently and thoroughly and that the decision not to refer the grievances to adjudication fell within its discretion.
Furthermore, the complainant was unable to establish any arbitrariness, discrimination, or bad faith on behalf of the bargaining agent. The Board also concluded, however, that in this case, the bargaining agent had acted in an arbitrary manner in failing to advise the complainant in a timely fashion of her right to file a judicial review application on the final-level reply to her classification grievance. The complaint was allowed in part.
Freeze of the terms and conditions of employment during negotiations
In Professional Institute of the Public Service of Canada v. Treasury Board, 2005 PSLRB 36, the bargaining agent alleged that the employer was in violation of the statutory freeze provision found under s. 52 of the PSSRA by cancelling the payment of the terminable allowance applicable to the Computer Systems group.
The bargaining agent considered the terminable allowance to be a term and condition of employment that existed at the time that notice to bargain was given, and which the employer was not permitted to revoke during the bargaining process. However, the employer responded that the parties intended that the terminable allowance be treated differently from other provisions of the collective agreement, as evidenced by the specified expiry date included in the Memorandum of Understanding that provided for the allowance.
After carefully considering the facts, the Board ruled that the terminable allowance provision was not exempt from s. 52 of the PSSRA, which imposes a statutory freeze on all terms and conditions of employment during the bargaining process. Therefore, the employer was ordered to reinstate the terminable allowance benefit retroactively to members of the CS group bargaining unit. The employer sought judicial review of the decision by the Federal Court of Appeal but the application was dismissed in Canada (Attorney General) v. Canada (Professional Institute of the Public Service), 2006 FCA 185.
Certification of Bargaining Agents
The Board also handles applications for certification or revocation of certification, and issues decisions regarding successor rights, in response to applications.
Certification means that an employee organization (bargaining agent) has been recognized by the Board to represent a group of employees in their labour relations with their employer.
Certification is granted when the employee organization applying for it is able to demonstrate to the Board that the majority of employees within the bargaining unit wish to be represented by it. This can be achieved through the presentation of signed membership cards indicating a majority of support or the administration of a secret-ballot vote administered by Board employees.
Certification brings with it the right to bargain collectively on behalf of the employees included in the bargaining unit and to become their bargaining agent. The bargaining agent must choose the dispute resolution mechanism—either arbitration or conciliation/strike—that will apply in the event of an impasse at the bargaining table.
Certification is granted for an indeterminate per-iod and is valid until another employee organization is certified by the Board and takes the place of the certified bargaining agent or until certification is revoked by the Board upon application.
A new certification application or an application for revocation of an existing certification can be filed with the Board only at certain times, that is, within two months of the date on which the collective agreement or arbitral award expires, or during the two-month period immediately before the end of each year that the agreement or award continues to be in force after the second year of its term.
Anyone representing a majority of employees who no longer wish to be represented by the certified union can apply for revocation of certification. Revocation can also be granted for abandonment or for fraud.
Successor rights involve the transfer of the rights and obligations associated with certification, in certain circumstances. For example, if a department or a portion of a department or agency becomes a separate agency or becomes a part of an existing separate agency, the union’s representation rights are protected and the collective agreements continue to apply to the employees who will be transferred to their new employer. The Board may be called upon to render orders to ensure that these transitions take place in an orderly manner.
In 2005–06, there were three new applications for certification and three decisions rendered, which applied to multiple cases. Fourteen applications were carried over from previous years and nine were carried forward to 2006–07. There were no new applications for revocations of certification and none carried over. There was one new application for the determination of successor rights, two were carried over from previous years, two decisions were rendered, and one was carried forward to 2006–07.
Other Labour Relations Applications
In addition to all those described above, the Board provides other adjudication services. These include:
reviewing applications for the identification of positions whose duties are of a managerial and confidential nature
reviewing applications for compliance orders submitted by applicants contending that other parties did not adhere to provisions of the PSLRA. The Board reviews applications and issues compliance orders in response to those found to be valid
reviewing, rescinding, altering or varying any of its decisions or orders, in response to receipt of an application for such a decision review
ordering a pre-hearing conference in relation to any matter before it
handling other proceedings before the Board including applications for displacement, essential services agreements, enforcement of obligations of employer and employee organ-izations, and bargaining unit determinations.
On April 1, 2005, 240 applications were carried over from previous years and 248 new applications were received, for a total of 488 cases. The bulk of these pertained to applications for the determination of management and confidential positions. Eighty-seven orders were made and 174 cases were carried forward to 2006-07.
Communications and Outreach
The establishment of the new Board in 2005–06 presented an opportunity to develop new tools for informing Board staff and clients about the new legislation, regulations and transitional measures, as well as the new types of procedures being put in place and how the Board would deal with them.
New branding of the Board logo provided the impetus to develop information kits containing fact sheets and frequently asked questions (FAQs), which were provided to all clients in 2005. Practice notes were developed for the Board’s regular clients along with guides for self-represented individuals. All are available on the Board’s website at www.pslrb-crtfp.gc.ca.
The Board also organized meetings with its clients to share information on the Board’s regulations and procedures and to provide an opportunity to discuss best practices. The positive reception received from parties suggests that these will be become more regular events.
All Board decisions continue to be published on the Board’s website, as well through Quicklaw (an electronic legal database) and through legal publishers.
Challenges for Adjudication Services
Handling cases under two overlapping pieces of legislation
When the new PSLRA came into force on April 1, 2005, many cases submitted under the former PSSRA had not yet been dealt with. Thus, 2005–06 was a year of overlap of two pieces of legislation, as the new Board continued to be responsible for cases presented to the previous Board. Parties were not required to re-file. Transitional rules are likely to continue for some time as a result of the many steps in the grievance processes at the departmental level.
Increasing volume of cases
The number of active grievance adjudication cases has grown from just over 1 900 in 2002–03 to more than 5 000 in 2005–06. The number of grievance adjudication files open in 2005–06 increased by 18% over 2004–05 and by 62% over 2003–04. In 2005–06, the number of cases carried over to the next year increased by 11% over 2004–05 and by 73% over 2003–04.
The caseload is affected by a number of factors, such as the overall number of grievances submitted by public service employees, the number and status of negotiations of collective agreements, and issues relating to the definition of bargaining units resulting from changes to the governance structure of the public service.
At the same time as the volume of cases has been increasing, many employer groups and bargaining agents have been experiencing resource reductions or restraints. This has led to a large number of postponements being requested by one or both parties and granted by the Board.
With the coming into effect of the new Act, the Board has taken the opportunity to review its existing processes, including the scheduling of matters for hearing, and requests for postponement. The Board plans to meet with parties in the near future to agree on an approach that will lead to a reduction in postponement requests, and more importantly, to a more expeditious handling of proceedings.
The Board will also explore alternate methods of making the most effective use of adjudicators, board members and hearing days, such as having other cases available for substitution when one matter is removed from the schedule.
New Act emphasizes mediation and dispute resolution
The new PSLRA clearly emphasizes the importance of harmonious labour-management relations in ensuring healthy and productive workplaces in Canada’s public service.
The Act’s preamble recognizes that collaborative efforts between employers and employees, through communication and sustained dialogue, are vital to improving the ability of the public service to serve and protect the public interest.
One key to good labour-management relations is the proactive and informal resolution of conflicts at the earliest stage possible. Preventing discord and resolving disputes before positions become entrenched is always preferable to resorting to more formal and adversarial rights-based approaches.
In keeping with this, mediation and conflict resolution are now key elements of the statutory mandate of the new Board. However, the Board is no stranger to alternate dispute resolution methods as it builds on the solid history of its predecessor, the PSSRB, which had incorporated the process of mediation as a permanent step in its adjudication and determination processes in an effort to reduce the number of cases going to a formal hearing.
The Board promotes and supports the use of informal and innovative approaches to dealing with workplace conflicts. Mediation is well accepted by the parties because it strives for a “win-win” result and is less confrontational than adjudication.
Under the PSLRA, the Chairperson of the Board can appoint a mediator to:
mediate in relation to grievances, complaints and other processes
assist parties with collective bargaining, both in the negotiation and renewal of collective agreements, and with the management of relations resulting from the implementation of collective agreements
assist the Chairperson in discharging his or her other responsibilities under the Act.
The appointed mediator can be a staff member, an external resource person, or a Board member. When a Board member is appointed, he or she assumes the function of a mediator and is not performing those duties as part of his or her role as a Board member or adjudicator.
Within the Board, the Dispute Resolution Services team is dedicated to providing impartial third-party assistance to parties to resolve disputes to their mutual satisfaction. The team provides professional mediation, conciliation, investigation and training services.
Mediation of grievances and complaints and preventive mediation
As mentioned earlier, grievances make up the largest number of proceedings before the Board. The Board offers mediation in all grievance and complaint cases. Both parties must agree to mediation efforts, after which the Chairperson appoints a mediator who works with both parties to help them resolve their dispute and avoid a formal adjudication hearing.
In recent years, the availability of mediation has led to a decline in the number of matters actually heard at adjudication, and tends to improve long-term relations between the parties. The volume of mediation cases continues to increase from year to year.
In 2005–06, the Board provided mediation services in 433 cases. Parties were successful in resolving 90% of these cases (388) with the assistance of the Board.
Mediators travel throughout the country to assist in a wide variety of cases—involving discipline, termination, overtime, incomplete work descriptions, and complaints of unfair labour practices, for example.
Parties to a conflict may call upon the mediation services of the Board even in the case of a file that has not officially been referred to adjudication. The file may or may not be the subject of a grievance or complaint.
In 2005–06, there were 39 efforts at preventive mediation, which had an 88% success rate (34 cases). In these cases, mediators helped resolve problems between colleagues, between employees and supervisors, and within work groups, as well as cases of harassment and discipline.
Assisting with collective bargaining through mediation
In 2005–06, the Board was called upon five times to provide the services of a mediator to assist parties in negotiating their collective agreements. Many of these requests were made under the former Act.
In one notable case, the Board was asked to provide assistance to parties that had decided to negotiate using an “interest-based” approach, which differs sharply from the approach normally used. After a series of meetings, the Public Service Alliance and the Communications Security Establishment were successful in coming to an agreement that satisfied the needs of both sides.
Under the new PSLRA there are two methods of resolving collective bargaining disputes—conciliation and binding arbitration. Upon certification, the bargaining agent must choose one of these methods for each bargaining unit it represents. This may be changed before each round of bargaining. Regardless of the method chosen, the employer or the bargaining agent may request third-party assistance from the Board in negotiations.
Conciliation gives employees the right to strike under certain prescribed conditions, and is therefore often referred to as the “conciliation/ strike route.”
With the enactment of the new PSLRA, a new process was introduced for helping parties settle their collective agreements—the Public Interest Commission (PIC). These are non-permanent bodies, consisting of one or three persons, which are appointed to assist the parties to resolve disputes and make recommendations for settlement. Their recommendations are not binding on the parties. PICs replace “conciliation boards,” which performed a similar function under the previous Act.
The Chairperson of the Board recommends the appointment of a PIC either at the request of the parties or on his or her own initiative. The PIC is appointed by the designated Minister.
If the PIC’s recommendations do not bring about a settlement, the bargaining agent acquires the right to strike seven days after the report containing the recommendations is made public by the Chairperson of the Board.
Pursuant to s. 165 of the PSLRA, the Chairperson of the Board undertook a consultation process to draw up a list of names of individuals for the purpose of striking PICs with a single member or appointing the chairperson of a PIC with three members. The Chairperson wrote to all employers and bargaining agents requesting that bilateral discussions be undertaken to designate potential members of PICs. These discussions are currently under way.
Binding arbitration culminates in an arbitral award (a decision) that is legally binding upon both parties and thus precludes subsequent strike action. Arbitration Boards are established by the Chairperson of the Board rather than by the designated Minister.
The PSLRA has made two-tier bargaining possible. Two-tier bargaining allows for service-wide bargaining to set the broad parameters for terms and conditions of employment in a bargaining unit, while permitting precise details to be nego-tiated in departments, if the employer, bargaining agent and deputy head jointly agree.
In order to declare a strike, the PSLRA requires bargaining agents to hold a strike vote by secret ballot. All employees in the bargaining unit have the right to participate in the vote and must be given reasonable access to the vote. Strike votes have to be held within the 60 days preceding any strike. A majority of those voting must be in favour for a strike to be declared. The Board may hear a complaint of alleged irregularities with respect to the conduct of the vote, where an application is made within 10 days of the result being announced.
There were four conciliation boards established in 2005–06. One of these boards, which continued into 2006–07, dealt with the issue of the future of terminable allowances. In 2005–06, there were no requests for Public Interest Commissions.
Ten arbitration boards were established in 2005–06. In one particular case, an arbitral award authorized a bargaining agent and the employees it represents to reach a collective agreement early in the new year.
Other mediation services
The Board offers a range of other mediation services, which include:
facilitating discussion between parties within specific departments and agencies, often in the context of Labour Management Consultation Committees
conducting strategic interventions, through which broad issues likely to generate disputes are discussed.
assisting in the investigation of cases involving applications for certification, the determination of membership on a specific date, and successor rights
facilitating discussions regarding exclusions from bargaining units
facilitating discussions regarding the determin-ation of positions/employees who are to provide essential services in case of a strike. Employees holding these positions are not eligible to strike
conducting workplace assessments to help parties resolve staff relations conflicts.
The new PSLRA requires heads of federal departments and agencies to establish, in collaboration with their bargaining agents, an informal conflict management system (ICMS). An ICMS allows an organization to pro-actively deal with conflict by means of prevention, awareness, training, coaching and mediation. Given the Board’s experience in providing mediation services, in 2005–06, several agencies called on us to help resolve complex labour-management situations within their organizations.
In 2005–06, members of the Dispute Resolution Services team provided more than 20 sessions on interest-based negotiations and mediation. To date nearly 2 000 people have attended this training session through the national training program established in 2000–01.
The two-and-a-half-day interactive session enables participants to acquire basic interest-based negotiation and mediation skills. It also provides an opportunity to explore conflict issues and communication problems between the parties.
Attendees also get to practise, through role-playing, the various skills and techniques they have acquired (negotiation and grievance mediation). Furthermore, the training session enables participants to exchange views on mediation issues.
The target audience includes those individuals responsible for workplace conflict resolution, such as staff relations officers, managers/supervisors, union representatives, classification officers and others working in this field, such as employee assistance program officers.
In 2005–06, Dispute Resolution Services team members took part in numerous awareness sessions both at the public and parapublic sector levels. Such sessions shed much light on the true meaning of mediation. Sessions were held for academics, members of the management and human resources communities, as well as union officials.
Compensation Analysis and Research Services
A new function for the Board
When the new PSLRA came into force, it brought with it a new function for the Board—the provision of impartial compensation analysis and research services in support of the collective bargaining and compensation determination processes in the public service of Canada.
In 2005–06, the Board established the Compensation Analysis and Research Services (CARS) unit to collect, compile, analyze and disseminate impartial, accurate and timely information on comparative rates of pay, employee earnings, conditions of employment and benefits in the public and private sectors.
This information, which will come from surveys grounded in sound methodology, will be disseminated to the more than 50 parties to the collective bargaining process in the federal public service (employers and bargaining agents), as well as to other public sector institutions, private sector organizations, and the general public.
The role of CARS is to keep a finger on the pulse of the compensation field and share information and analysis with employers and bargaining agents in the federal public sector and other interested Canadians.
Contributing to harmonious labour relations
Compensation is often a major topic of interest for both parties at the bargaining table. Labour-management relations are enhanced when both parties have equal access to accurate and comprehensive compensation information provided by a neutral and authoritative third party.
When both parties can begin negotiations by agreeing on the market-based compensation data they will use as a reference point, they can focus their time and effort more efficiently on negotiating rates of pay and other benefits that will be acceptable to all.
Compensation data provided by the Board will also be of assistance to arbitration boards and Public Interest Commissions in carrying out their dispute resolution mandate.
Independent Advisory Board
In December 2005, the designated Minister for the Board—the Minister of Canadian Heritage and Status of Women—established an independent Advisory Board on Compensation Analysis and Research, as prescribed by the PSLRA.
The role of the Advisory Board is to advise the Chairperson of the Board on the compensation analysis and research services provided by the Board. Members are appointed by the designated Minister.
Their role is also to assist the Board in defining short and long-term compensation information priorities and requirements. The Advisory Board provides a forum for the Board to consult and exchange information with bargaining agents and employers under the PSLRA.
The Advisory Board is chaired by Maryanne Webber of Statistics Canada. Members include nine experts in the field:
Louise Boivin (Confédération des syndicats nationaux);
Michel Cavallin (Social Sciences and Humanities Research Council of Canada);
Claude Danik (Canadian Association of Professional Employees);
Denise Doherty-Delorme (Professional Institute of the Public Service of Canada);
Guy Lalonde (Public Service Labour Relations Board);
David Orfald (Public Service Allianceof Canada);
Suzanne Payette (Human Resources and Skills Development Canada);
Robert Taylor (International Brotherhood of Electrical Workers, Local 2228); and
Anthony Rizzotto (Treasury Board of Canada).
The Advisory Board held its inaugural meeting on January 19, 2006. Subsequent meetings have and continue to be focused on reviewing and recommending survey design options to meet immediate and longer term bargaining requirements and developing relevant survey tools and methodologies.
Establishing the new service
In 2005–06, the Board concentrated on building its core CARS organization, which involved recruiting key personnel. The unit also worked to lay the foundation for its survey and research capacity, including developing the framework it intends to use for its survey activities.
The Board has held consultations with more than half of the nearly 50 parties to bargaining in the federal public service to inform them of its new compensation analysis and research mandate and to discuss their specific compensation information needs.
The Board has also held meetings with provincial governments to seek their collaboration in the undertaking of its compensation survey activities in an effort to avoid the duplication of work. These meetings gave the Board an opportunity to gain a comprehensive understanding of compensation issues in Canada and to pursue potential partnerships with provincial administrations on these issues.
Challenges facing the Board as it establishes its compensation analysis and research services include managing the expectations of some 50 parties with differing priorities, needs, and objectives, as well as reconciling differing opinions on key methodological issues such as measurement tools and criteria, sampling, and target occupations.
Looking to the future
The next major round of collective bargaining in the public service will occur in 2007–08. The Chairperson of the Board has written to all parties to find out what compensation data they require to support this next round. Answers and suggestions for possible projects continue to be submitted by the parties. It is expected that a number of these projects will be selected with the goal of having survey and research results available to the parties in 2007.
|Changes to Grievance Adjudication under the New Public Service Labour Relations Act|
Under the new PSLRA, three types of grievances can be referred to adjudication: individual grievances, group grievances and policy grievances.
Individual grievances: Individual grievances relate to the interpretation or application of a collective agreement or arbitral award or any matter affecting the terms and conditions of a specific individual’s employment, such as disciplinary action, demotion, termination, suspension or financial penalty.
If an employee grieves against a termination of employment or demotion for unsatisfactory performance and refers the grievance to adjudication, the PSLRA requires the adjudicator to find that the termination or adjudication was for cause if he or she determines that the deputy head’s opinion about the unsatisfactory nature of the employee’s work was reasonable.
The PSLRA allows grievances against deployment. Such grievances, however, can be referred to adjudication only when they relate to deployment without consent, where consent is required.
When an employee has a workplace dispute, he or she is required to choose between presenting a grievance and making a complaint under any internal policy of the employer that might apply, such as an independent third-party review. This only applies if the internal policy expressly states that the employee gives up his or her right to grieve when he or she pursues relief under the policy.
Group grievances: A group grievance may be presented when two or more employees in a single department or agency are similarly affected by the interpretation or application of a collective agreement or arbitral award. The employees are able to opt into a group grievance which would be referred by their bargaining agent. If an employee later decides that he or she no longer wishes to participate in the group grievance, the employee may opt out.
Policy grievances: A policy grievance relates to the interpretation or application of a collective agreement or an arbitral award. Either the bargaining agent or the employer may refer a policy grievance.
The new PSLRA makes it possible for employees to file grievances involving issues under the Canadian Human Rights Act, except in relation to pay equity, and be awarded monetary relief as provided for under that Act. The Canadian Human Rights Commission (CHRC) is entitled to be notified of such grievances and has standing to make submissions to an adjudicator. In 2005–06, the CHRC was notified in 12 cases. As of March 31, 2006, none of those cases had been heard.
Governance, Management and Accountability
Good governance and management is vital to the Board’s reputation and credibility, which rest on its integrity and impartiality, the quality of its decisions and services, and its accountability for the public funds spent.
In 2005–06, the Public Service Labour Relations Board had a budget of $10.2 million and had 79 full-time equivalent positions.
A new governance structure for the Board was introduced in 2005–06, with each Vice-Chairperson being delegated functional responsibility for one of the three components of the Board’s mandate—adjudication, mediation, and compensation analysis and research.
The Executive Committee is responsible for the management of resources allocated to the Board, and for the provision of strategic direction and oversight to the management of the Board.
The Executive Committee comprises the Chairperson, the three Vice-Chairpersons, the Executive Director of the Board, and the heads of Registry Operations and Policy, Dispute Resolution Services, Compensation Analysis and Research, Corporate Services and Finance.
The Executive Director of the Board assists the Chairperson in the exercise of the Chairperson’s functions and, subject to the Chairperson’s direction, directs and supervises the day-to-day conduct of the work of the Board, the management of the Board’s internal affairs and the work of persons employed by the Board.
Reporting to the Executive Director are:
the Director of Dispute Resolution Services
the Director, Registry Operations and Policy
the Director, Corporate Services
the Director of Compensation Analysis and Research Services
the Director of Finance
the Legal Services Section
The Board has put in place key elements to ensure good governance, management and accountability. These include an annual strategic plan that takes into account the key risks faced by the organization and expectations of key stakeholders, Program Activity Architecture, a Results-based Management and Accountability Framework, a human resources plan and a risk-based internal audit plan. The organization regularly updates these plans and monitors and reports its progress in achieving goals set out in them.
The new Public Service Employment Act, which is aimed at modernizing staffing in the public service while preserving the core values of merit and excellence, came into effect on December 31, 2005. The Board developed and implemented a new appointment framework consisting of new policies and guidelines, a Staffing Management Accountability Framework (SMAF) and training for senior managers.
The implementation of a multi-year information technology plan has led to the establishment of a more modern and secure infrastructure, a better integration of information, and standardization of our products.
In 2005–06, the Board embarked on a multi-year project to develop a new electronic case management system. Case information will be scanned and managed electronically from the beginning—the receipt of a grievance, for example—to the end—the distribution and posting of the decision on our website. The new case management system will streamline the way the Board manages its case files and introduce efficiencies that will help better serve clients.
Members of the Public Service Labour Relations Board
Full-time Board members
Mr. Tarte is a graduate of the University of Ottawa (B.A., LL.B.) and has been a member of the Ontario Bar since 1973. From 1973 to 1975, he held the position of Assistant City Solicitor for the City of Ottawa. He was employed as an Appeals and Adjudication Officer with the Public Service Alliance of Canada from 1975 to 1978. He held the position of Counsel for the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police from 1978 to 1981 and for the Canadian Human Rights Commission from April 1981 to January 1983. From February 1983 to his initial appointment with the Public Service Staff Relations Board, he was employed as Executive Director with the Office of the Commissioner of Canada Elections and as General Counsel to the Chief Electoral Officer of Canada.
Mr. Tarte was appointed Deputy Chairperson of the Public Service Staff Relations Board in January 1992 and Vice-Chairperson in May 1996. In December 1996, Mr. Tarte was appointed Chairperson of the Public Service Staff Relations Board. His appointment was renewed on May 7, 2003, for a period of three years.
His appointment as Chairperson was continued with the Public Service Labour Relations Board for the remainder of his term.
Ian R. Mackenzie
Ian R. Mackenzie is a graduate of Carleton University, where he received a B.A. (Hons.) in Political Science and an M.A. in Sociology. He received his law degree from the University of Windsor and has been a member of the Ontario Bar since 1992. He worked in private practice with an Ottawa law firm from 1992 to 1993, where he practiced labour and employment law. He was a research officer with a federal public service bargaining agent from 1994 to 1997, and Executive Director of the Professional Association of Foreign Service Officers from 1998 to 2000. He was also a legal counsel with the Department of Justice in 1997–1998 and 2000–2002, working in the areas of judicial compensation and benefits and administrative law.
Mr. Mackenzie was a member of the National Joint Council from 1993 to 2000, where he served on a number of committees, including those dealing with the Foreign Service directives, workforce adjustment, and employment equity. From 2001 to 2002, he was Chair of the NJC Foreign Service Directives Committee. He was a member of the Law Society of Upper Canada's Equity Advisory Group from 1999-2002. He has also taught employment law and public law at Carleton University and for the Ontario Bar Admission program.
He was first appointed as a full-time member of the Public Service Staff Relations Board on July 3, 2002. He was appointed Vice-Chairperson of the Public Service Labour Relations Board on May 5, 2005, for a period of five years. In 2006, he was designated as Acting Chairperson of the PSLRB by the Minister of Canadian Heritage and Status of Women, following the expiry of Sylvie Matteau’s term as Vice-Chairperson.
Sylvie Matteau was admitted to the Quebec Bar in 1981, after studying law at the University of Sherbrooke, and receiving a Master’s of Law degree from McGill University (International Law & Air and Space Law). In 1981, she studied briefly at the Academy for International Law in The Hague, Holland. Her immediate post-university occupational history—from 1982 to 1985—was in the service of the federal government. In 1985, she joined the Canadian Institute for International Peace and Security, where she worked for two years in the field of conflict resolution.
After a move back to Montréal, she developed a legal practice and established one of Montréal's first private mediation services in 1987. In the years since, her professional activities have been dedicated to all facets of alternative dispute resolution and particularly their application in the workplace. She has regularly collaborated with different training institutes and groups in this field, and, more specifically, at the Post-graduate Program in Engineering at the University of Sherbrooke (2000–03) as well as with the Institut de médiation et d’arbitrage du Québec (2001–02).
She has been invited to lecture at McGill University, the Pontificia Universidad Católica de Chile (1998) and the Independent Bar Association of the Kingdom of Cambodia (2001–04). She was a member of the steering committee and facilitator of the Canadian Forum on Dispute Resolution in 1995, and from 2000 to April 2004, she was the Chairperson for the Conflict Resolution Network Canada, a national organization promoting peaceful conflict resolution in schools, communities and workplaces.
Sylvie Matteau was appointed Deputy Chairperson of the Public Service Staff Relations Board for a three-year term effective September 2, 2003. On May 8, 2006, Ms. Matteau was designated Acting Chairperson of the Public Service Labour Relations Board until the expiry of her term as Vice-Chairperson.
Georges Nadeau received a bachelor's degree in business administration in 1978 from the Centre des études universitaires dans l'Ouest québécois of the Université du Québec. From 1978 to 1983, he served as a union representative with the Supply and Services Union, a component of the Public Service Alliance of Canada. In 1983, he became an officer with the Alliance's grievance and adjudication section, a position he occupied until 1996. During those 13 years, Mr. Nadeau argued a large number of grievance cases in a variety of jurisdictions in Canada. From 1996 to 1998, the Alliance put Mr. Nadeau in charge of co-ordinating the collective bargaining section.
In 1998, the Professional Institute of the Public Service of Canada, one of Canada's largest professional unions, hired Mr. Nadeau as Senior Manager, Representational Services, a position he occupied until his appointment to the Board. Mr. Nadeau's responsibilities included collective bargaining, member representation services, research, pension and benefit services, and recruiting and retaining union delegates, members and bargaining units.
In 2004-2005, Mr. Nadeau co-chaired the task force on corrective action in staffing matters set up by the Deputy Ministers' Sub-Committee on Staffing and Staffing Recourse. From 2001 to 2005, he sat on the National Joint Council Union-Management Relations Committee. In 1995-1996 he represented the Alliance on the Canadian Labour Congress task force on the revision of the Canada Labour Code. From 1992 to 1995, he was a member of the Conseil du module des études de premier cycle en relations industrielles of Université du Québec.
On May 5, 2005, Mr. Nadeau was appointed as a Vice-Chairperson of the Public Service Labour Relations Board for a four-year term that began on June 6, 2005.
Dan Butler brings to the Public Service Labour Relations Board more than 25 years of experience in labour relations in the public sector. After undergraduate and graduate studies in political science at York University and Carleton University, Mr. Butler joined the Professional Institute of the Public Service of Canada in January 1980 as a research officer. At PIPSC, he subsequently served as Chief Research Officer (1981 to 1986), Negotiator (1986 to 1997) and finally, Head of Negotiations and National Employment Relations (1999-2001).
Mr. Butler’s primary focus throughout these assignments was on collective bargaining and dispute resolution, with negotiation experience under six different labour laws, representing scientific and professional employees working for a dozen different public employers. Mr. Butler also acted as a principal union spokesperson on national files including classification modernization, pay equity and staffing reform. From 1997 to 1999, he provided policy and strategic advice to the Public Service Commission under an interchange agreement, as Senior Advisor and Project Leader in the PSC Research Directorate.
In May 2001, Mr. Butler was appointed General Secretary of the National Joint Council of the Public Service. In this capacity, Mr. Butler undertook broad responsibilities as a third-party neutral facilitating relations between the Government of Canada and its bargaining agents. The mandate of the NJC as the Public Service "Forum of Choice" included co-development of directives establishing terms and conditions of employment with Public Service-wide application, national consultations on employer policies and legislative modernization, resolution of NJC grievances and insurance plan appeals, and the development of methodologies for a comprehensive compensation research capacity.
Mr. Butler also held parallel responsibilities as General Secretary of the Public Service Commission Advisory Council and as Co-Secretary of the Public Service Modernization Act Union Management Advisory Committee.
Mr. Butler was appointed a full-time member of the Public Service Labour Relations Board on October 24, 2005, for a period of three years.
Barry Done is a graduate of Carleton University where he received a B.A. in Law and Political Science.
Following a brief period in the federal government, he began what would become a 28-and-a-half year career with the Public Service Alliance of Canada. Mr. Done’s first position with the PSAC was that of Services Officer with the National Component in Ottawa, where he represented component members at final-level grievance hearings in his assigned departments (Labour Canada, Statistics Canada, Industry Trade and Commerce, Office of the Auditor General, etc.). Services Officer duties also included conducting regional seminars, providing representation on public service employment matters and daily advice to component Locals across Canada.
In November 1981, he moved to Kingston to become a Regional Representative with the Organization Branch of the PSAC. There, he continued representation on appeals, and teaching weekend and in-residence union training courses on a wide variety of topics. In addition, he became Health and Safety Co-ordinator and represented Kingston Region members on work refusals and conducted joint workplace Health and Safety investigations with Labour Canada. His last few years in this position included acting as Assistant Director of the Organization Branch supervising all regional representatives in Canada; and acting as PSAC Legislative Officer, where he co-ordinated referrals to the Federal Court and acted as liaison between the Alliance and their law firm. It was during this period that he co-wrote the first Alliance Appeals Representation Course, began presenting cases before the Public Service Staff Relations Board and writing/hosting a three-part televised Pre-Retirement Planning Course for the Kingston and District Labour Council.
In April 1989, Mr. Done accepted a full-time position as Grievance and Adjudication Officer with the Collective Bargaining Branch in Winnipeg where he provided representation on adjudicable matters across the country to Alliance members.
Mr. Done was appointed a full-time Board Member of the Public Service Labour Relations Board on November 7, 2005, for a period of three years.
Born in Montréal, Quebec, Léo-Paul Guindon is a graduate of l’Université du Québec à Montréal, where he received a law degree. He was called to the Quebec Bar in 1983. Mr. Guindon is a recognized family mediator and as a lawyer in private practice has had extensive experience in administrative, labour, civil and real property law. He also worked as a labour relations consultant with l’Alliance des professeurs de Montréal.
Mr. Guindon has served, on a part-time basis, as Chair of the Employment Insurance Board of Referees for the Quebec Regional Division (District of Montreal Centre-Ville) since 1994.
Mr. Guindon was appointed as a full-time member of the Public Service Staff Relations Board on June 1st, 2000. His appointment was renewed on June 1, 2004, for a period of three years. His appointment was continued with the Public Service Labour Relations Board for the remainder of his term.
Dan R. Quigley attended the School for Workers at the University of Wisconsin where he successfully completed his studies in labour relations and collective bargaining.
Mr. Quigley began his public service career as a boiler maker apprentice in Victoria in 1976. He became a journey person in 1980 and, from 1986 until his appointment to the Public Service Staff Relations Board, he was the National President of the Federal Government Dockyards Trades and Labour Council (Esquimalt, British Columbia).
Mr. Quigley was a member of the National Joint Council of Canada for some 15 years, where he was involved in major policy developments and directives such as workforce adjustment, civilian reduction plan, Public Service Heath Care, Disability and Dental Plans.
He has held various positions, most notably as Chief Negotiator for the Federal Government Dockyards Trades and Labour Council (Esquimalt); Chairman of the National Joint Council Union-Management Relations Committee; Co-Chair and a founder of the Public Service Commission Advisory Committee; Co-Chair of the Department of National Defence (DND) Union-Management Human Resources Sub-Committee and National Advisor to DND’s Employee Assistance Program; and, a member of the International and Canadian Representatives Liaison Committee.
Mr. Quigley has worked with and advised the Civil Service Commission and the National Unions of the Philippines on collective bargaining, staffing and labour relations.
Mr. Quigley was appointed as a full-time member of the Public Service Staff Relations Board on November 19, 2001. His appointment was renewed on November 19, 2003, for a period of three years. His appointment was continued with the Public Service Labour Relations Board for the remainder of his term.
Mr. Tessier received his law degree from Laval University in 1970 and was called to the Quebec Bar the following year. He has almost 30 years of experience in the labour relations field. He held the positions of counsel, labour relations director and chief negotiator with the Quebec Federation of School Boards between 1971 and 1985. He served as a Department of Health negotiator with the Quebec Federation of General Practitioners between 1989 and 1996. Various private-sector, para-public, corporate-public and public bodies have called on his expertise.
Mr. Tessier has also served as Chair of the Employment Insurance Board of Referees for the Quebec City/Ste–Foy region. Since 1985, he has practised law, mainly as labour relations arbitrator and negotiator, as partner in a law firm and through his own labour relations company.
Mr. Tessier was appointed a full-time member of the Public Service Staff Relations Board on February 28, 2000, for a period of four years. His appointment was renewed on February 28, 2004, for a period of three years. His appointment was continued with the Public Service Labour Relations Board for the remainder of his term.
Part-time Board members
|Bruce Archibald||Term ends December 8, 2009|
|Ruth Elizabeth Bilson||Term ends September 21, 2007|
|Francine Chad Smith||Term ended February 8, 2006|
|Innis Christie||Resigned June, 2005|
|Mary Ellen Cummings||Term ends March 10, 2007|
|Joan M. Gordon||Term ends May 12, 2007|
|Thomas Kuttner||Term ends May 20, 2007|
|Paul E. Love||Term ends March 10, 2007|
|Ken E. Norman||Term ended September 15, 2006|
|John James Steeves||Term ends March 10, 2007|
|Denise T. Wilson||Term ended May 20, 2006|
© Minister of Public Works and Government Services Canada 2006
Cat. No. SR1-2006
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