Conciliation board report

File: 190-02-335

REPORT OF THE CONCILIATION BOARD

IN THE MATTER OF A DISPUTE

BETWEEN

THE PUBLIC SERVICE ALLIANCE OF CANADA

Bargaining Agent

AND

TREASURY BOARD

Employer

IN RESPECT OF THE PROGRAM AND ADMINISTRATIVE SERVICES GROUP

For the Bargaining Agent: Lynn Whittaker, Negotiator, Liam McCarthy, Research Officer & Nycole Turmel, National President

For the Employer: Marc Thibodeau, Negotiator, Marc Richard, Senior Researcher

Before: Ken Norman, Chair,
Rosemary Warskett, Bargaining Agent Nominee
Pierce Sutherland, Employer Nominee

OTTAWA – September 12th, 13th, 14th, 18th & 19th, 2004

[1] By letter of June 7, 2004, the Public Service Alliance of Canada, pursuant to section 76 of the Public Service Staff Relations Act, requested the establishment of a conciliation board for the Program and Administrative Services Group bargaining unit.

[2] Rosemary Warskett and Pierce Sutherland, who were appointed members of the conciliation board on the nomination of the bargaining agent and the employer respectively, jointly nominated Ken Norman to act as the chairperson of the conciliation board on the mutual understanding that the board would meet with the parties on September 12th, 13th, 14th, 18th & 19th, 2004.

[3] This conciliation board was duly established on August 4, 2004, with the direction from Yvon Tarte, Chairperson of the Public Service Staff Relations Board, to report in this matter within 2 weeks following the first meeting with the parties.

[4] In a meeting prior to the commencement of the first session with the parties, the board resolved to take seriously the instruction in section 85 (1) of the Public Service Staff Relations Act “to endeavour to bring about an agreement between the parties in relation to the matters set out in the statement”. To this end, both individually and collectively, board members met informally with the parties over the course of the first 3 days. This process was continuous save for a punctuation point on the part of Nycole Turmel, National President of PSAC, that took the form of a formal presentation to the board and the assembled bargaining teams on the PSAC’s Social Justice Fund demand.

BACKGROUND

[5] This bargaining unit contains over 75,000 [according to the Treasury Board] or 78,000 [according to the PSAC] employees in some 65 [according to the Treasury Board] or 70 [according to the PSAC], government departments located in Canada and abroad with a payroll of more than $3,000,000,000. The parties agree that women make up about 75% of the bargaining unit in both indeterminate and term positions. Term employees make up 16% of the bargaining unit.

[6] In the aftermath of service of a notice to bargain on Treasury Board, on April 1, 2003, the parties logged 25 days of bargaining [the last 10 of these in February were held with the assistance of a conciliator] prior to coming before this board of conciliation.

[7] Complicating this process was the addition to this bargaining unit, as of December 12, 2003, of over 7,000 employees from the Custom and Border Service Agency. This prompted cancellation of negotiations that had been slated for the week of January 12th, 2004. On January 28, 2004, the PSAC incorporated into its demands a number of items important to its new Custom and Border Service Agency members. The two conciliation sessions that followed, on February 9th to 13th and February 23rd to 27th, concluded with the conciliation officer as the parties were not moving towards a deal.

ISSUES

[8] The PSAC’s voluminous brief advised the board that “the PSAC negotiating team has worked hard to present the Board with a workable package despite the lack of serious negotiations thus far and we look forward to having many of our key priority demands addressed through the Conciliation Board process.” The Treasury Board also verbally expressed frustration at the lack of progress achieved through the bargaining process.

[9] The board strove mightily to assist the parties to clear the table of marginal issues so that key matters of dispute might be addressed. By the board’s estimate, despite 25 days of bargaining, spread over 5 months, followed by 7 more months of opportunity for the parties to work separately on the tabled issues, the parties presented this board with about 97 points of difference with regard to the proposed contents of their next collective agreement.

[10] The board’s first 3 days of mediation sessions resulted in some, but not much, common ground being established. And, some movement occurred on both sides. Then, with our agreed scheduled time running out, we devoted our attention fully to hearing both sides on their issues. Happily, more common ground was located and more movement, especially on wages, took place. Thanks are due to both teams and to their able negotiators for this.

APPROACH

[11] After much discussion we determined to aim at identifying those elements that, in our judgment, should be conducive to an agreed settlement. This approach was announced to the parties during the course of our conciliation process with them.

RECOMMENDATIONS: MAINTENANCE AND REPAIR OF WORK PLACE RATHER THAN NEW CONSTRUCTION ISSUES

[12] The board proposes to confine our recommendations to work place issues of maintenance and repair on the following rationale. First, at the end of the fifth long day of our conciliation process, there remained a welter of outstanding issues on the table between the parties and before us. Though the absolute number of issues was reduced by about 50% there still remained a staggering array of diverse and complex matters in dispute. This caused the board to resolve, in the limited deliberation time available, to seek to determine the heart of the matter as the board sees it and leave the parties to work through the penumbral issues. Second, we did not wish this report to raise impediments to the productive collective bargaining process that this board is confident can yet be engaged in by these parties at Table 1. An illustration of what we have in mind here is the cautionary tale, for the approach of this report, of one key aspect of the PSAC’s initial “personal harassment” demand.

[13] In support of its demand for the equivalent of a personal harassment clause the PSAC brief cites a clause in the University Teaching (UT) collective agreement that incorporates the Treasury Board’s Harassment in the Work Place Policy. The Treasury Board adamantly rejects this demand on the ground that the UT provision was never agreed to. It was imposed by an arbitration panel in the early 90′s. The Treasury Board has sought to have this clause removed ever since. For, the Treasury Board is convinced that the field of personal harassment is not appropriate for the rights regime of a collective agreement. It is far better handled by policy means such as in its Harassment in the Work Place Policy with its emphasis on prompt resolution through early intervention, discussion and mediation. The matter of interpersonal conflicts is so subjective and the notion of personal harassment is so undeveloped, a personal harassment clause would generate so many grievances as to be counterproductive in reaching the mutual goal of achieving respectful work places.

[14] In other words, in our judgment, for this board to wade into an issue of new construction would be to contradict our approach by raising an item that might well prove to be a deal breaker. Accordingly, we will make no comment on any new construction demand.

EMPLOYEE RIGHTS AND OBLIGATIONS

Education and Learning

[15] This board recognizes the PSAC’s perspective on the collective agreement as a vehicle for education and learning. We recommend that with regard to existing employee statutory rights in the Canadian Human Rights Act and the Canada Labour Code, Part II, the relevant articles in the collective agreement flag these statutes so that employees will be better informed as to their work place protections.

[16] With regard to the Joint Learning Program [JLP], we understand that both parties have taken this pilot project seriously. And, in an initial evaluation findings report, of January, 2004, Consulting and Audit Canada commented that “While program internal and external stakeholders are of the view that the JLP is an effective way of improving labour/management relations in the workplace, it is too early to be able to definitively confirm this is the case.” So, as the assessment process is still under way, it is premature to say more than this. Should the final assessment be positive, we recommend that the parties explore means of implementing more such learning programs.

Equity and Seeking Work-Life Balances

[17] This board recognizes the importance of these family responsibility questions especially for this bargaining unit. As we have earlier noted, women make up about 75% of this work force in both indeterminate and term positions. Further, Table 1 contains the largest number of term employees. And, they constitute about 16% of the bargaining unit. This board recognizes the changing pattern of family relationships in contemporary society. The next decade will see a rapid growth of the sandwich generation. The elderly will increasingly need care from their adult children. And, older adults may increasingly become involved in the care of their grandchildren.

[18] There are a range of leave provisions that are implicated in this recognition of family responsibilities such as maternity and parental leave, including the treatment of term employees; maternity related reassignment; leave for care of immediate family; leave for family related responsibilities, compassionate leave and marriage leave. On consideration of the array of arguments presented by the parties with regard to bones of contention over these leaves this board has one general recommendation and one specific comment to offer.

[19] In light of the gender demographic of Table 1, this board urges the Treasury Board, on a number of these issues, to attend to the legitimate concerns raised by the PSAC on behalf of its members.

[20] With regard to the PSAC’s demand for recognition in the marriage leave clause of public same sex commitment ceremonies, in light of the Canadian Human Rights Tribunal’s order in Boutilier, Huard & Gurr (2003 CHRT 20), of May 26, 2003, this board wishes simply to note that the Treasury Board’s proposal of a universal one-time 3-day vacation leave entitlement complies by placing a blanket over the tough question that, in the federal sector, awaits the current reference to the Supreme Court of Canada. However, it does so at some cost to hetero couples – by imposing a 2-year waiting period and reducing their marriage leave from 5 to 3 days; to same sex couples – by both of these factors and by denying them formal recognition in the collective agreement; to term couples by denying them access – due to the 2-year waiting period; and to the public purse – by adding a provision that will likely cost a good deal more than the PSAC’s proposal.

OPERATIONAL CONCERNS

[21] This board recognizes the importance that the Treasury Board attaches to its proposal that all leave credits and leave entitlement be specified in hours, with the exception of bereavement leave which should be specified in calendar days. For the Treasury Board the current state of affairs is simply anomalous and must be fixed. The essential concern here is that, as things stand presently, employees whose hours of work are averaged earn more leave with pay than do their peers who work a regular schedule. An illustration is provided in Urs Breitenmoser and Others 2004 PSSRB 103, at page 16. An employee working a regular schedule, that is, Monday to Friday, 8 hours a day, would be entitled to 40 hours of paid family-related leave. However, a variable shift employee working 12-hour shifts would be entitled to 60 hours of such leave. The Treasury Board proposal is to fix this anomaly by converting both entitlements, credits, and the granting of leave with pay in whatever form it takes to hours save, that is, for bereavement leave. This board urges the PSAC to address this anomalous state of affairs.

[22] That said, this board recognizes the point made by the PSAC in its brief in Urs Breitenmoser and Others, at page 14, that Justice Gibson, of the Federal Court Trial Division, in Canada (Attorney-General) v. King, [2003] FCJ No. 777 (TD) at para. 23, asserted that paid leave for family related responsibilities is an entitlement which arises on the basis of need rather than as an earned credit such as vacation or sick leave. In short, the Treasury Board’s proposal leaves a further anomaly in its wake. There is no apparent rationale for treating bereavement leave as the only leave to be granted on a calendar day basis save, that is, for the fact that it was so treated in the former master collective agreement. Surely, as Justice Gibson has most recently pointed out, need-based leave is categorically different from earned credit leave. Accordingly, this board urges the Treasury Board to address this challenge.

[23] With regard to the difficult transition that has been experienced in the aftermath of the transfer into this bargaining unit, as of December 12, 2003, of over 7,000 customs employees, this board recommends that a letter of assurance be given to the PSAC outlining implementation time frames with regard to the introduction of a new classification standard. This board anticipates that the issue of enforcement responsibilities will be recognized and dealt with in this exercise.

[24] This board recognizes that, due to coordinated bargaining of the public service tables, the Treasury Board considers itself to be up against it when comes to implementing a renewed collective agreement within the 90-day statutory limit. We recommend that the PSAC address this concern by bargaining some extension period.

[25] No one doubts that, for a variety of reasons including new physical plants and contentious interpretations, the Penological Factor Allowance [PFA] is in a sorry state of disrepair. Progress has been achieved on this before us by the parties in narrowing the many points of difference in approach and criteria. This board encourages the parties to work together to develop a PFA scheme that is much less complicated and less open to subjective interpretation. In this regard, we urge the parties to resolve their differences concerning custodial responsibility versus risk exposure by focusing on just what is real and what is not as well as on just what is more and what is less valued in the relevant job descriptions.

ADMINISTRATION ISSUES

[26] There are a number of obsolete provisions that beg to be deleted, though perhaps not at wholesale. An example that springs to mind here is the identification of a grandfather with 45 years of public service who still remains entitled to the old furlough leave clause. There are errors in translation. Article 46.01 is an example where the English term is spouse and the French term is conjoint. Progress was achieved by the parties before us on these issues. We are confident that the parties will be able to resolve these matters en route to a renewed collective agreement.

ECONOMIC ADJUSTMENTS

[27] With regard to call-back and standby overtime pay, this board recognizes the Treasury Board’s position that the collective agreement needs to be brought in line with the technological evolution of the work place. Some employees can now work at a distance and often from home thus avoiding the need to physically report in to their office when called in. We note that several groups including TC, FS, FI, SO and SR-C have clauses that take this in to account and recommend that this new reality be addressed by the parties.

[28] With regard to shift definition and overtime on a second day of rest, this board recognizes that these are legitimate economic interests of the Treasury Board that require further bargaining.

[29] This board recommends that, where an employee in this bargaining unit meets the same job and certification requirements, that already exist at Table 2, concerning the Transportation of Dangerous Goods Allowance, that same benefit should be paid.

Wages and Duration

[30] With a growing economy currently nearing full capacity, according to Bank of Canada governor David Dodge, and what that means in terms of enhancing the Government’s revenue stream, there is power to the PSAC’s claim to a fair share for its membership. And, there is no apparent overriding labour relations reason to deny this plea. Granted, presently the Treasury Board does not face problems of recruitment and retention, however, that point needs to be tempered by the public policy consideration that pushing this labour market perspective too hard will surely erode pay equity gains that have been achieved to remedy past wage discrimination against the women in this bargaining unit.

[31] In terms of a big picture reality check, one can say that there may only still remain in play something like a spread of 1.75% over three years. [If, that is, one focuses on the Treasury Board Nominee's recommendation, at Table 2, of 2.5%, 2% and 2% and the PSAC's endorsation of the CCRA Conciliation Board Chair's recommendation of 3.0%, 2.75% and 2.5% as a good basis for renewed talks.] During the course of the productive exchanges on wages before us, the parties at Table 1 did not quite make it to these positions. The PSAC’s last bargaining position before us, while noting that the CCRA Conciliation Board Chair’s opinion was the closest comparator for us to look at, came in at 3.50%, 3.25%, 3.25% and 2.0% on the footing that the difference between CCRA and Table 1 wage rates needs to be taken into account. [The data supporting this differential is a lower weighted average for Table 1 employees of 1.64% in 2000, 2.28% in 2001 and 2.28% in 2002.] The Treasury Board ended up before us at 2.25%, 1.75% and 1.75%. However, we believe that these are bargaining positions. And, we are confident that the ultimate settlement that we say is achievable in short order, if the parties agree to further talks, will surely fall within our 1.75% big picture spread over 3 years. Accordingly, we urge the parties to return to the table. A deal on wages is now within reach of the parties. And, with that in place, we are confident that the rest can be dealt with along the lines that this board has outlined.

[32] In conclusion, because relationships matter in bargaining, we wish to note that the chief negotiators at Table 1, Marc Thibodeau for the Treasury Board and Lynn Whittaker for the PSAC, have demonstrated that they are fully up to the challenges this report puts to the parties. In the 5 long hard days that they laboured before us, these two mature negotiators displayed not only a high degree of competence in dealing with the voluminous and disparate elements in dispute in the vast and complex terrain of Table 1 but also continuously manifested an impressive degree of mutual respect.

[33] Finally, I wish to pay a tribute to my colleagues on the board. Pierce Sutherland and Rosemary Warskett brought to our task enormous depths of collective bargaining experience with these two parties. Further, they worked harmoniously and effectively with me and with the parties to achieve some real bargaining exchanges and gains in the time we spent with the parties. And, in our final executive sessions, with great good will and generosity, they helped me to articulate and deliver on the approach that has informed this report.

DATED AT SASKATOON THIS
25 DAY OF SEPTEMBER, 2004.

_________________________
Ken Norman, Chair,
Table 1 Conciliation Board

DATED AT OTTAWA THIS
26 DAY OF SEPTEMBER, 2004.

__________________________
Pierce Sutherland,
Employer Nominee
(with partial dissent)

___________________________
Rosemary Warskett,
Bargaining Agent Nominee
(with partial dissent)