Archive for the 'Applying the Collective Agreement' Category



An ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

The Programs Section and Education Section of the PSAC has prepared some educational tools for presentations, courses or workshops on the Treasury Board Workforce Adjustment Policy. These tools include the PowerPoint presentation below, check it out to read more about …

  • Workforce Adjustment – Central Objectives.
  • Before a WFA Situation is declared.
  • What is the role of the WFA Committee?
  • What are the Employer’s obligations once a Work Force Adjustment has been called?
  • Key Employer Obligations: What does the WFAA Say?
  • What is a reasonable job offer under the WFAA?

The WFA presentation is also available full-screen here.

If you have questions about the WFA, or want more information contact your PSAC Regional Office.

An ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

While we try to avoid allowing this to happen at all, there are circumstances when our best laid plans go awry.  The Public Service Labour Relations Board uses a criteria to determine whether an extension of time should be granted.  In the following decision, rendered on October 13, 2010, PSLRB Vice-Chairperson Ian R. Mackenzie dealt with that specific criteria.

The grievor was represented by his bargaining agent at the first level of the grievance process – the employer provided a copy of its first-level decision directly to the grievor, and did not supply a copy to his representative – on learning that a first-level decision had been rendered, the grievor’s representative requested a copy and presented the grievance at the second level within seven days of receiving it, but outside the time limit set out in the collective agreement – the employer considered the presentation at that level untimely – the grievor’s representative applied for an extension of time to present the grievance at the second level of the grievance process – the Chairperson found that the grievor had not been negligent by relying on his representative to present his grievance at the second level of the grievance process and that the delay was not significant – the Chairperson further found that the deputy head would suffer no prejudice from an extension of the time limit.

Read the full text of the decision at pslrb-crtfp.gc.ca.

An ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

As most of you are aware when the new Public Service Modernization Act came into being it amended the Public Service Labour Relations Act in a number of ways. One of those was the ability for bargaining agents (ie. PSAC) to present “a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.” (Section 220(1)).

Our weekend course experience tells us that PSAC members believe that this meant that they could file a grievance against an “employers policy”.

A good example of the PSAC using the “policy grievance” route involves the announcement by the Prime Minister that a new government pay centre would be situated in Miramichi, New Brunswick. The PSAC felt that this initiative will clearly result in a workforce adjustment situation.

You can see the completed policy grievance form on this issue here (pdf).

A PSLRB decision released in late August dealt with a situation which a number of PSAC members have found themselves in over the years. Specifically, the decision dealt with the employer taking action to recover $11,564.85 as a result of their administrative error when they credited an employee with more annual leave credits, over a 5 year period, than she was entitled to.

In his decision, Adjudicator Quigley stated: “Given the absence of anything in the law or the collective agreement dealing with the issue, general management rights prevail and those rights give the employer some discretion to correct errors. However, discretion must be exercised reasonably and the recovery of a debt caused by the negligence of the employer and allowed to balloon over the years, despite inquiries by the grievor regarding her entitlements, is an unreasonable exercise of discretion. In the case of the grievor, detrimental reliance can be found in the fact that the grievor took the leave that she believed she was entitled to.”

The grievance was allowed. Visit the PSLRB website to read complete adjudication case.

PSAC will go to arbitration over a Treasury Board directive to managers aimed at silencing the union’s pension campaign.

  • Did your employer take down PSAC petitions or otherwise interfere in the pension campaign? Let us know.

The Feb. 26, 2010 directive told managers:

  • all requests to post petition sheets should be denied;
  • all requests to distribute petitions via the Employer’s electronic networks should be denied;
  • other than the actual petition, requests to post literature, such as general information on pensions, should not be unreasonably denied;
  • the wearing of stickers should be permitted as long as the employee is not directly serving the public;
  • the placing of stickers on the Employer’s property or equipment should not be permitted.

On March 10, 2010 the PSAC filed a policy grievance against the directive.

Continue reading at the national website.

The Public Service Labour Relations Act (PSLRA) allows adjudicators to interpret and apply the Canadian Human Rights Act (CHRA) and can give a damages award for pain and suffering or punitive damages, each being no more than $20,000. Public Service Labour Relations Board adjudicators did just that in two recent cases.

The 1st case involved a Canada Revenue Agency employee who was diagnosed with fibromyalgia. She filed a grievance which stated that the employer had failed to provide adequate and timely accommodation of her disability. The adjudicator allowed the grievance and ordered the employer to pay $6,000 for pain and suffering as per section 53-2(e) of the CHRA. Read the full decision at pslrb-crtfp.gc.ca.

The 2nd case involved a National Defense employee who was terminated by the employer due to his inability to attend work for medical reasons. The adjudicator allowed the grievance on two grounds. The first was that the termination was invalid because it was based on confidential information obtained during mediation. The second was that the respondent had not fulfilled its duty to accommodate the grievor. The employee was reinstated as of the date of termination. In addition, the adjudicator ordered the employer to pay $9,000 for pain and suffering and $8,000 as additional compensation (sections 228-2 of PSLRA and 53-3 of CHRA). The employer was also ordered to pay 4.32% interest on both of these monetary amounts as per section 226-1(i) of the PSLRA. Read the full decision at pslrb-crtfp.gc.ca.

2010 Olympics – Is Your Employer Ready?

The following information is not meant to replace the discussions which should be taking place at your workplace regarding the Employer’s state of readiness. Specifically, how will employees be treated if they are unable to access their place of work due to the 2010 Olympics.

Most collective agreements covering PSAC members contain a provision similar, if not identical, to the following:

At its discretion, the employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld;

The following principles outline what we have learned from arbitrators’ decisions on the many grievances on denial of “special leave”.

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Are you considering or in the process of dealing with a staffing complaint? Robert Strang, CEIU National Union Representative (and ex-CEIU 20944 Local President), who works out of the Edmonton CEIU Regional Office, has put together the following information which includes an impressive list of jurisprudence.

This information is meant for PSAC members covered by the Public Service Employment Act (PSEA).

What can complaints be filed over?

  • Internal appointments
  • Abuse of authority in:
    • Application of merit (ex: something wrong with how you were assessed, bias, bad faith, discrimination and other reasons)
    • Choice of Process (choosing a non-advertised process when they should have used an advertised process)
    • Choice of language (not allowing you be assessed in your choice of English or French)
  • The Deputy Head’s decision to layoff an employee
  • The decision by a DH or the PSC to revoke an appointment
  • Failure of corrective action following a complaint against an internal appointment that was substantiated

A few things to keep in mind about staffing complaints

  • You must have a “personal interest” in a complaint you file. In other words, you must be, for example, one of the people who missed out on an opportunity because a non-advertised process was improperly used when there should have been an advertised process or something went seriously wrong with their assessment of you as a candidate. You cannot file a complaint on behalf of someone else who may be too timid to file a complaint.
  • You must file a complaint within the timeframes outlined on the Notice of Appointment, not on the previously issued Notice of Consideration for Appointment. Missing the timeframes because of vacation, for example, is not considered a valid reason to extend the complaint period.
  • You must send your alllegations in writing by email or fax to the Director of the PSST (Public Service Staffing Tribunal) in Ottawa. These need not be perfect as I will finalise formal allegations at a later date, but should be detailed enough so that the PSST can determine if it is a legitimate complaint. A few simple paragraphs is usually sufficient. The instructions and contact information can be found here.

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An ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

During a severe winter storm a few years ago two UTE members were unable to make it to work. They applied for leave with pay under Article 54.01 (a) of the collective agreement between the PSAC and the Canada Revenue Agency (CRA).

The employer denied their request and instead granted them annual leave. They felt that the grievors did not make a reasonable effort to get to work, further that other employees at the grievors work location either made it to work or requested annual leave.

In a decision issued June 30, 2009 Adjudicator Paquet allowed the grievances. He also indicated in his decision that the grievors should not have their rights restricted by other employees’ interpretations of the collective agreement.

To read the complete decision and reasons visit the PSLRB website.

stewards network!If you work for the Canadian Food Inspection Agency (CFIA) or have the same “meal break when working overtime” language in your collective agreement this decision from the Public Service Labour Relations Board (PSLRB) will be of interest to you.

Two employees of the CFIA working in Edmonton, Alberta worked three (3) hours overtime following the end of their normal shift.  The employer paid them overtime at the applicable rate as well as the ten ($10.00) dollars meal allowance.  The grievors were not provided their meal break and grieved this violation by the employer.

Were the grievors correct?  Read the full decision to determine whether they were right.

… an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

For PSAC members who are covered by the Public Service Labour Relations Act (PSLRA), you will be interested in changes made to the process for classification grievances. The PSAC is recommending that “statement of duties” and “effective date” grievances be handled through the Informal Conflict Management System (ICMS). For a complete overview of the classification grievance process please visit the national website.

question-mark

… an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

In February 2005 the Canada Revenue Agency (CRA) re-organized their Client Services area. Specifically, they wanted to eliminate both the “cash counters” and the “client service counters”. At the request of their Local, PSAC/UTE members working in those areas wore buttons which read “You’ll miss us when we’re gone! 2006″.

The Employer believed the wearing of this button gave the public a false image of the Agency and ordered the employee’s to remove their buttons.

Was the participation by UTE members a “lawful activity of an employee organization”?

Visit the Public Service Labour Relations Board website to read the complete decision which was issued March 20, 2009.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards- read more of them in the Steward’s Network section of the site.

“Do I have to advise my employer of the nature of my illness?”

“Can the employer force me to provide a doctor’s certificate or demand that I undergo a medical examination?”

The following document provides you with some well established principles in these and other related areas. From a current examination of the case law on sick leave, medical certificates and medical examinations, the following principles will serve as a guide.

We should begin with the basic premise that the employer has the right to insist on a medical certificate as a condition of granting sick leave. In the case of most collective agreements, the employer’s right to impose such a requirement is explicit. Where a collective agreement is silent on this point, the employer could successfully argue that its residual management rights (i.e., all rights not modified by collective agreement language) permit it to require proof of sickness. If a collective agreement specifies (as some do), that the employer could only require a medical certificate after so many days of absence in a given year, then the employer’s right would be restricted.

Continue reading in the Sick Leave, Medical Certificates, Medical Exams and Related Issues – Some Principles handout (pdf), prepared by the PSAC Education Section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards – read more of them in the Steward’s Network section of the site.

Do you have any rights when your employer tells you that you are to be present at some type of disciplinary meeting? Read the following resource document and see what the established principles are regarding this issue.

Collective agreement language describing rights to union representation in matters of discipline varies in its strength and scope. Most collective agreements covering PSAC members contain a provision providing an employee with the right to union representation at the time s/he is interviewed regarding allegations of misconduct, or alternatively, at the time discipline is imposed. Some agreements oblige the employer to remind the employee of his/her rights to representation. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. Other language refers to time limits for placing items of a disciplinary nature on an employe’s file, and notifying the employee of whether or not the file will be used at the meeting.

The scope of representational rights is found in the precise wording of the collective agreement.

Read more in the Discipline – Rights to Union Representation (pdf) document, prepared by the PSAC education section.

network of the stewardsAnother in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Operational Requirements

  1. Operational requirements must be based on the work itself to be performed, not on administrative or economic criteria.
  2. Consideration of overtime costs are not proper concerns in determining whether or not operational requirements exist.
  3. Operational requirements are a question of fact to be determined in each case.
  4. The initial onus rests with the grievor to demonstrate that operational requirements were not a valid reason on the part of the employer to deny a benefit of the collective agreement (e.g., leave). Once that burden is discharged, the onus of demonstrating that operational requirements were valid reasons for denying the benefit will then rest with the employer. Of the two burdens, the employer’s burden is more onerous. The reasons are twofold:
    • Knowledge of operating requirements is in the hands of the employer. More importantly, the employer has undertaken an obligation, the release from which is contemplated only in special circumstances. To not impose the onus on the employer to establish the exceptions to the right granted under the relevant provision in the collective agreement could undermine its intent.
  5. It has been held that the employer must consider the real alternatives available regarding the use of other staff. That said, the employer’s refusal to consider the use of other staff does not necessarily mean that denial of leave is unreasonable.
  6. The employer must organize its operations and the service so that employees can exercise their rights under the collective agreement. The employer cannot hide behind staff shortages and operational demands such as training. These are not acceptable excuses to relieve the employer of its obligations.
  7. There may be unusual operational requirements of a temporary nature when an employer may block out periods of time in which leave will not be granted because of anticipated needs (e.g. new plants, increase in cross-border traffic).
    When the employer plans the operations and clearly knows its operational requirements, it has been held that the employer can rightly refuse a request for, for example, compensatory leave.

Download the “Operational Requirements: Some Principles” handout (pdf), developed by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Acting Pay: Some Principles

With the elimination of positions and staff cuts, employees may find themselves assigned additional duties. With financial constraints, managers may be under increased pressure to stay within existing budgets or cut costs. As employers meet their employment equity obligations, employees may receive a variety of developmental opportunities. In these kinds of circumstances, employees may be entitled to acting pay.

The conditions under which entitlement to acting pay exists are determined by collective bargaining. The following is from the collective agreement between PSAC and Treasury Board for the Program and Administrative Services Group (expiry date of 20 June 2007):

64.07

(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least three (3) consecutive working days or shifts, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

(b) When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period. When interpreting collective agreement language, it is important to break down the provision by conditions and obligations. Then, it is easier to separate what the provision does say, from what it does not say.

For the entitlement to acting pay to take effect, there are 3 conditions to be satisfied ….

Continue reading in the “Acting Pay: Some Principles” handout (pdf), developed by the PSAC education section.

… an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

PSAC members covered under the National Joint Council directives (TB, CFIA and CRA) will find the following adjudication decision of some importance. The PIPSC decision interprets the expression sole caregiver as defined in the NJC Travel Directive.

TRAVEL ALLOWANCE – EXPENSE ALLOWANCE

Travel Directive “Reimbursement of dependant-care expenses” Whether the grievor was the ‘sole caregiver’ at the time of travel

The grievor incurred expenses for the care of his two sons while he was on business travel – at that time, his wife was also on business travel – his wife was not employed in the public service  the employer denied the grievor’s claim for reimbursement of dependant-care expenses … the adjudicator found that, in the circumstances, the grievor was the sole caregiver of his sons at the time of travel and that he was entitled to be reimbursed for the dependant-care expenses that he incurred as a result of travelling on business.

Grievance allowed.

Read the full decision at the PSLRB website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Special Leave With Pay – Snowstorms/Inclement Weather
Most collective agreements covering PSAC members contain a provision similar, if not identical, to the following:

At its discretion, the employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld;

The following principles outline what we have learned from arbitrators’ decisions on the many grievances on denial of ‘special leave’. While the above provision can also apply to a variety of other circumstances that prevent an employee’s reporting for work, the following references apply to snow storms and other weather-related conditions. The references represent a sample of arbitrators’ decisions.

1. The main thrust of the provision is to provide for the exceptional treatment of particular employees under certain kinds of circumstances. This is why one speaks of ‘special leave’. Ultimately, each case must turn on its own particular facts.

2. The first issue to be decided is whether the circumstances preventing the employee from reporting for duty were or were not directly attributable to the employee. The conclusion must be arrived at reasonably on the basis of the information obtained after a due and diligent enquiry by the employer.

Read more, in the ‘Special Leave With Pay – Snowstorms/Inclement weather‘ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.




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