EC and TR Bargaining Dispute Resolution

 Q:  What are the dispute resolution processes available if there is an impasse at  the bargaining table?

Prior to the 2013 government Bill C-4: A second Act to implement certain provisions of the budget, there were two processes for resolving collective bargaining disputes: arbitration or conciliation. Arbitration results in a decision (arbitral award) that is binding on the parties. Conciliation results in recommendations which could lead the parties to an agreement, but are not binding on the parties and strike action is a possibility. Bill C-4 changed the process for the resolution of disputes between an employer and a bargaining agent. The default process is conciliation. Arbitration is an option for a bargaining unit that has 80% or more of its positions designated as essential service positions (positions necessary for the safety or security of the public) or if the employer and the bargaining agent agree to arbitration as the method of dispute resolution.  

Q:  Is conciliation the process for the resolution of disputes for TR and EC  bargaining units?

Yes. Arbitration is not an option because both bargaining units do not meet the 80% threshold of designated positions, and CAPE now needs to obtain the agreement of the employer. Members of the EC and TR bargaining have always chosen binding arbitration as the dispute resolution mechanism. Our request for arbitration was denied by the employer in the round of bargaining following the implementation of Bill C-4.  

Q:  What happens once the parties reach an impasse at the bargaining table?

Either party may request conciliation in respect of any term or condition of employment that may be included in a collective agreement. Upon receiving a request for conciliation, the Chairperson of the Public Service Relations Board and Employment Board (Note 1) evaluates whether a public interest commission (PIC) might assist the parties in reaching an agreement and that the parties are unlikely to reach agreement otherwise. A PIC usually consists of three members, with one acting as the Chairperson.   Mediation is always available to the parties throughout the process.  A mediator will be made available to confer with the parties to a dispute and will endeavor to assist them in settling the dispute by any means that the mediator considers appropriate.

Q:  What happens after a PIC is established?

As soon as possible after being established, the PIC must endeavor to assist the parties to the dispute in entering into or revising a collective agreement. The public interest commission may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations. Each party has an opportunity to submit written submissions and present oral arguments.

Q:  Are there any factors in the legislation to be considered by a PIC in making  recommendations to assist the parties?

Yes. A public interest commission must give preponderance to the necessity of attracting and retaining competent public servants and Canada’s fiscal circumstances in relation to its stated budget objectives. A PIC is permitted to consider other factors, if relevant. Some examples of relevant factors are comparability of terms of employment in different segments of the public sector and the private sector; reasonableness of terms and conditions of employment in relation to the qualifications and the work performed; and the state of the Canadian economy. To ensure that arbitration boards and public interest commissions are guided by these criteria, the Chairperson of the Public Service Labour Relations and Employment Board can direct that they review their decisions.

Q:  What can be included in a PIC report? 

A public interest commission must submit a report as to its success or failure in assisting the parties to the dispute, and as to its findings and recommendations.  The report may not, directly or indirectly, recommend the alteration or elimination of any existing term or condition of employment, or the establishment of any new term or condition of employment, if: the recommendation would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for implementation; the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act; or the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees.

Q:  What happens after the report is submitted to the parties?

The report’s non-binding recommendations are intended to encourage further dialogue and to assist the parties to the negotiations to reach a tentative agreement.  If the parties reach an agreement, it is subject to ratification by the members covered by the agreement. If the parties are unable to reach a tentative agreement, the legislation provides for the possibility of job action, including strike action. The legislation does not, however, provide the option for the employer to “lock out” its’ employees.  Mediation or further negotiations to reach a settlement are always possible after the report has been submitted.

Q:  Can all members of the bargaining unit go on strike?

No. EC’s and TR’s who are assigned to a position that has been identified as providing an essential service are prevented from striking. An essential service is defined in the legislation as meaning: a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public. Employees of the bargaining who do not occupy positions designated essential may strike once all the conditions outlined in the legislation are met.

Q:  How do employees know if they occupy a designated position?

Under the Public Service Labour Relations Act, the employer must notify employees in writing of their status as an essential service employee (note 2). The employer has the exclusive right to designate positions in a bargaining unit that provide essential services. The legislation imposes a duty to consult the bargaining agent of a bargaining unit in which the employer has designated positions as essential. The consultation period ends 60 days after notice was given by the employer. Within 30 days following the 60 days, the employer must notify the bargaining agent of the positions it has designated as essential. There is no dispute resolution process prescribed in the legislation where differences arise as to what positions are to be designated as essential.

In the event of a picket line, designated employees can show the letter confirming their status in order to not be unduly delayed in reporting for work. The PSLRA gives the employer the right to require that an employee in a position designated as essential perform all the duties associated with the position and be available during off-duty hours to report to work to perform those duties if needed.

Q:  When can the bargaining agent call a strike? 

In order to obtain approval to declare or authorize a strike, a bargaining agent must hold a vote by secret ballot among all of the employees in the bargaining unit. The vote must be conducted in a manner that ensures that employees are given a reasonable opportunity to participate in the vote and be informed of the results. The vote must have received the approval of a majority of the employees who voted. The bargaining agent may authorize or declare a strike only within the period of 60 days following the vote, provided that it has received the majority support of voters.

 Q:  Are there provisions in the legislation to prevent or curtail strike actions?

Yes.  If the employer is of the opinion that it is in the public interest that the employees in a bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the bargaining agent in respect of all matters remaining in dispute between the parties, the employer may order that a vote to accept or reject the offer be held by secret ballot. If a majority of the employees participating in the vote accept the employer’s last offer, the parties are bound by that offer and must enter into a collective agreement that incorporates the terms of that offer.  Any strike that is in progress must cease immediately, and the employees must return to work as soon as the employer determines that it is practicable for them to do so.

Once a bargaining unit has obtained the legal right to strike, the terms and conditions of employment contained in the collective agreement no longer need to be observed by the employer and the employer may suspend any benefit covered under the agreement such as under the National Joint Council directives (e.g. travel).

Q: What types of job actions are permitted when a group is in a legal strike position? 

A strike under the Public Service Labour Relations Act is defined as: “a cessation of work or a refusal to work or to continue to work by persons employed in the public service, in combination, in concert or in accordance with a common understanding, and a slow-down of work or any other concerted activity on the part of such persons that is designed to restrict or limit output.”

By way of example, once the Foreign Service officers were in a legal strike position after voting 82% in favour of job action in 2013, the first job action measure initiated was “electronic information pickets” (automatic e-mail replies informing contacts of the breakdown in contract negotiations and expressing regret for any service delay). “Work-to-rule” followed with refusals to do overtime, checking BlackBerries outside business hours, filling in for their bosses, or performing any tasks outside their job descriptions. It is only after Treasury Board’s continued failure to return to the table that there was a significant escalation in job action, when missions abroad and at headquarters in Ottawa were targeted for walkouts.

Notes:

1- The PSLREB deals with matters that were previously dealt with by those former tribunals under the Public Service Labour Relations Act and the Public Service Employment Act, respectively. The PSLREB is responsible for administering the collective bargaining and grievance adjudication systems in the federal public service and in Parliament. It is also responsible for the resolution of staffing complaints related to internal appointments and layoffs in the federal public.

2- The consultation process in 2014 was completed over the summer and letters were sent to TR  and EC employees in August and September. Employees who have not received a letter were encouraged to confirm with their employer that they were not occupying a designated position.

3- Disclaimer: Material contained in this document is intended for general information purposes only. It is not intended as professional counsel or legal opinion.   Any analysis or interpretation contained herein should not be considered to be CAPE’s final analysis or interpretation and is subject to change. It is not binding on CAPE. Every case is highly fact specific and as a result, the outcome of any particular case will vary depending on the unique facts and legal issues involved.

References:

C-4 A second Act to implement certain provisions of the budget tabled in Parliament in March 2013 http://www.parl.gc.ca/content/hoc/Bills/412/Government/C-4/C-4_4/C-4_4.PDF

Public Service Labour Relations Act http://laws-lois.justice.gc.ca/eng/acts/P-33.3/

Treasury Board of Canada, Frequently Asked Questions - Changes to collective bargaining, essential services and recourse processes http://www.tbs-sct.gc.ca/lrco-rtor/collective/lru-mnc/faqa-eng.asp