Conciliation board report – PSAC partial dissent

PARTIAL DISSENT AND RECOMMENDATIONS OF THE NOMINEE FOR THE PUBLIC SERVICE ALLIANCE OF CANADA

With respect to the Conciliation Board Report concerning the dispute between the PSAC and the Treasury Board, and the employees of Program and Administrative Service Group.

I would like to thank the chair, Ken Norman, and all the parties for their expertise and cooperation during the process. In particular, I would like to thank the members of the PSAC’s negotiating team for their patience, hard work and efforts to negotiate during the period of conciliation. Under very difficult circumstances they represented the members of their union as well as they could. It was apparent throughout the hearings, and during the board’s attempt to mediate and conciliate the differences between the Treasury Board and the PSAC, that the process was one of considerable frustration for these employees.

As noted by the conciliation board’s report, the brief presented by the PSAC drew our attention to the lack of serious negotiations thus far. Unfortunately this state of affairs continued during the board hearings. Despite the willingness of the PSAC’s team to negotiate and present amended positions, there was little response on the part of the Treasury Board. It appeared that the Treasury Board negotiators had little or no mandate to conduct serious negotiations. In the end the PSAC had no choice but to present its issues to the board, without having the opportunity to engage in serious negotiations with the employer.

I would like to state that I agree, in many instances, with the board’s perspective on the issues in dispute. The board, however, has chosen to write very few specific recommendations, instead urging the parties to return to the bargaining table and settle their differences based on the principles outlined in the report. The problem, however, is that free collective bargaining can only occur when both parties to the dispute know that eventually they must settle their differences at the bargaining table. The history of recent negotiations suggests that Treasury Board has little interest in negotiating, and indeed there is evidence that it is acting as if there is no need to. There was little in this period of conciliation regarding the dispute at Table 1 that would lead to another conclusion. I hope I am proved wrong in this regard. Given the present situation, however, I will present recommendations on the following issues that remained in dispute at the end of the board hearings.

Education and Learning

I agree with the recommendation in a paragraph [15] of the board report that refers to employees’ statutory rights in the Canadian Human Rights Act and the Canada Labour Code, Part 11 (Health & Safety). And that the “the relevant articles in the collective agreement flag these statutes so that employees will be better informed as to their work place protections.”

One further conclusion to be drawn from the Board’s recommendation in a paragraph [15] is that Article 22 also flag the Canadian Human Rights Act. I recommend further that the title of this article be changed to Harassment and that 20.01 state that “This article includes harassment within the meaning of the Canadian Human Rights Act.” This would indicate to employees, who have a harassment problem under any of the grounds in the Act, to lay a grievance and proceed through the grievance procedure.

I further recommend that personal harassment be included in the collective agreement. The board’s report stated that Treasury Board argued that the problem is better handled by policy means. Yet there is evidence that the revised policy has not resulted in diminishing the problem. As indicated in the PSAC’s brief, a survey of federal employees in 2002 found that there was an increase in those employees reporting harassment in the work place, after the revised policy was put into effect. Three quarters of these employees reported they experienced harassment by those with authority over them. By including clauses on personal harassment and abuse of authority in the collective agreement, employees would be better informed, they would know that they can grieve the problem, and that they could receive representation and support from the union.

Equity and Seeking Work-Life Balances

I fully endorse the board’s recognition of the family responsibility questions for this bargaining unit and I agree with the board’s perspective outlined in paragraph [17]. The board report, however, needed to follow through on the implications of its perspective and make the following recommendations:

Article 40, remove those words that restrict Parental Leave without Pay to a single period of up to thirty-seven consecutive weeks. This would be consistent with the Canada Labour Code, Part 111 and the Employment Insurance Act, that allows benefits to be split into more than one period.

Article 41, change the title to Leave Without Pay for Care of the Family. Expand the definition of family to include partner, grandparents, parents of spouse/common-law spouse/partner. Also include Compassionate Care Leave that would reflect an existing right under the Employment Insurance Act.

Article 43 – Leave With Pay for Family Related Responsibilities. Expand the definition of family as above and in 43.02 increase the leave provision to seven days.

Treatment of term employees – Five Days Break in Service

The board points to the legitimate concerns raised by the PSAC concerning term employees. There are a number of demands by the PSAC relating to the unfair and inconsistent treatment of terms. The union seeks for term employees, covered by the collective agreement, the same rules for continuous employment found in the Terms and Conditions of Employment Regulations. It is recommended that all applicable articles in the collective agreement be changed to reflect that a minimum of three months constitutes a break in service. This recommendation affects the following articles:Article 38 – Maternity Leave Without Pay and Article 40 – Parental Leave Without Pay. Currently term employees, whose break in service is more than five days, must repay the maternity and parental leave allowance. This “five day” rule is inconsistent with the adjudication decision Reid, Dixon and Desmarais v. Treasury Board, (1997) PSSRB 166-2-27085. In that case the maternity allowance was reinstated because the adjudicator found that the employees had been rehired within three months and therefore were deemed to have retained their continuous employment status. Further to this problem, it would be consistent with the board’s recommendation on education and learning to flag the Term Employment Policy in the collective agreement.

I recommend that in the spirit of treating term employees equitably that there be entitlement for an increment after 52 weeks of cumulative service.

Marriage Leave and definition of a Spouse

I agree wholeheartedly with the board’s perspective on this issue. I would add that the employer’s three day vacation leave proposal is not a credible solution to the Canadian Human Rights Tribunal’s order in Boutilier, Huard & Gurr (2003) CHRT 20. I recommend that the discriminatory language in Article 45 be removed and the five day marriage leave provision be extended to employees participating in same-sex, public commitment ceremonies. In addition in article 2.01 the discriminatory languages are changed to reflect the changes in Article 45.

Employer Proposal: Conversion of Days to Hours

It is clear that Treasury Board attaches great importance to its demand for leave credits and entitlements to be specified in hours instead of days. This being the case, one would have expected the employer to come to the conciliation board hearings prepared to hear the union’s position and engage in meaningful negotiations by giving consideration to other key issues presented by the union. Also, the expectation of Treasury Board seems to be that its definition of a day should be changed in the collective agreement, without considering the lessons of the adjudication cases the employer lost on the contract’s present wording.

Treasury Board in the hearing stated that it proposed to revert to the original provisions of article M-40 in the old master agreement. This means that all leaves, with the exception of Bereavement Leave, would be calculated on an hourly basis. The problem here is one cannot distinguish between Bereavement Leave and other leave provisions in the collective agreement such as Paid Leave for Family Responsibilities. Bereavement leave is exercisable on an “as needed basis,” as were the other leaves that were at issue in the grievances under dispute in the recent adjudication decision in Urs Breitenmoser et al V. Treasury Board, (2004) PSSRB 103. Accordingly the demand by the employer to convert days to hours does not have a logically consistent basis and it’s rational is flawed.

Allowances

I agree with the board’s recommendations in [29] concerning the Transportation of Dangerous Goods Allowance. I recommend that the same principle be extended to the Inmate Training Allowance, namely that an employee that meets the same criteria as a member of Table 2 should receive this allowance.

The board makes no recommendation to continue the past practice of providing an allowance for enforcement duties. Particularly this needs to be included in the light of the recently expanded enforcement duties of thousands of Table 1 employees.

Social Justice Fund

The Board’s report is silent on the demand by the PSAC for the employer to contribute one cent per hour worked to the PSAC’s Social Justice Fund. Given the benefits that could result from this contribution, the cost is comparatively low at approximately $19.50 per member per year. Furthermore, this demand does not lead the private sector, as there are many examples of large private corporations contributing higher amounts to the Social Justice Funds of unions such as the CAW and the Steelworkers.

The fund promises to contribute to social justice initiatives, both internationally and nationally, and is complementary to and consistent with the Canada government’s international objectives. We often read in the popular press that labour unions are only concerned about the welfare of their own members. Social Justice Funds are examples of social movement unionism, a form of unionism seeking justice for all members of society. Such objectives should be encouraged rather than ignored by the Treasury Board of the Government of Canada.

Rates of Pay

In general I agree with the board’s points supporting “the PSAC’s claim to a fair share for its membership.” I do not agree, however, with the statement that there is only 1.75% difference over three years between the PSAC’s and TB’s positions. The evidence points to a greater disparity than this. Furthermore, a reasonable settlement should include wage restructuring and wage harmonization for all employees at table 1. Without restructuring, harmonization and a significant economic increase key issues such as the transfer and integration of the more than 7,000 employees transferred from the Canadian Customs and Revenue Agency will not be adequately addressed. That being said I agree with the board that a deal between the PSAC and Treasury Board is certainly possible, especially given the current government’s financial position and the positive economic climate

Rosemary Warskett
Nominee of the Public Service Alliance of Canada
Ottawa, Ontario
September 26, 2004.