Notice - Positions Designated Essential to the Safety and Security of Canadians

By means of C-4 the Conservative government changed several aspects of the bargaining process, including the right to choose the impasse resolution process and the nature of the process that serves to designate positions that are essential to the safety and security of Canadians in the event of a strike.

The choice of impasse resolution process was taken away from public service employees. The default process now is conciliation/strike. Employees do have the right to ask the employer to agree to arbitration in order to resolve impasses in lieu of conciliation/strike. Both the EC and TR members instructed CAPE in their respective bargaining input surveys to approach Treasury Board and to request arbitration. CAPE made the request for each bargaining unit. Treasury Board rejected the request in both instances.

As a result, both the TR and EC bargaining units will require conciliation and possibly a strike if there is no agreement at their respective bargaining tables. In preparation for the possibility of an impasse at the bargaining table, the employer has the responsibility to identify EC and TR positions that are essential to the safety and security of Canadians, and to consult with CAPE on the matter of the designations.

Public service employees who occupy designated positions are prohibited from withdrawing their work. Therefore, if and when their bargaining unit colleagues decide to strike, they must report to work as usual.

The consultation process has been completed for the TR bargaining unit. The consultation process will be completed before the end of the summer for the EC group. TR employees who are occupying positions that are designated by the employer will be receiving a letter in the second half of the month of August while EC employees occupying positions designated essential by the employer will receive a letter at the beginning of October.

The letter sent to employees occupying designated positions will include the position number of the designated position, the position title, and the work location. It will also include information regarding the obligations of an employee occupying a designated position.

In short, the responsibilities of an employee who occupies a designated position are to report to work as usual and to follow instructions regarding procedures to access the work place in the event of a strike.

Employees who receive the letter should keep the letter in a safe place as they may need to refer to the letter at some later date.
It should be noted that the employer has designated approximately 30% of TR positions in the public service, and less than 4% of EC positions. Therefore, 70% of TR employees will not receive a letter further to the designation process; and more than 96% of EC employees will not receive such a letter.

If you receive such a letter and have questions, please contact your Labour Relations Officer at CAPE.

Division 8 of the Public Service Labour Relations Act defines the designation process. There are additional provisions, transitional provisions that define a distinct time line for the current round of bargaining. For the current round, the employer must complete the designation process for the entire public service before December 12, 2014.


Division 8 reads as follows:


PUBLIC SERVICE LABOUR RELATIONS ACT

DIVISION 8

ESSENTIAL SERVICES

119.
(1) The employer has the exclusive right to determine whether any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public.
(2) Nothing in this Act is to be construed as limiting the employer’s right under subsection (1).

120.

(1) The employer has the exclusive right to designate the positions in a bargaining unit that include duties that, in whole or in part, are or will be necessary for the employer to provide essential services, and the employer may exercise that right at any time.
(2) Nothing in this Act is to be construed as limiting the employer’s right under subsection (1).

121.

(1) The employer must notify in writing a bargaining agent that represents a bargaining unit that the employer either has, or has not, under section 120 designated positions in the bargaining unit.
(2) If the notice is to the effect that the employer has designated positions, the notice must identify the designated positions.
(3) The notice must be given not later than three months before the first day on which a notice to bargain collectively may be given. However, in the case of an employee organization that is certified as the bargaining agent for a bargaining unit after the day on which this section comes into force, the notice must be given within 60 days after the certification.
(4) The employer must notify the Board of the date the notice was given under subsection (1) to the bargaining agent.

122.

(1) If the notice under subsection 121(1) is to the effect that the employer has designated positions, the employer must, after giving the notice, without delay, begin consultations with the bargaining agent about the designated positions that are identified in the notice. Those consultations must end 60 days after the day on which the notice is given.
(2) Within the 30 days that follow the end of the 60 days, the employer must notify the bargaining agent of the positions in the bargaining unit that the employer has or will designate under section 120.

123.

If a position that is designated by the employer under section 120 becomes vacant, the employer may identify a position of the same type as a replacement position. If the employer does so, the employer must provide the bargaining agent with a notice of replacement.

124.

(1) As soon as feasible after designating a position under section 120, the employer must provide the employee who occupies the position with a notice informing the employee that they occupy such a position.
(2) A notice given under this section remains valid as long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by them is no longer necessary for the employer to provide essential services.

125.

(1) Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day on which the notice is given remains in force in respect of any employee who occupies a position that is designated under section 120 and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.
(2) Nothing in this Act is to be construed as limiting the employer’s right to require that an employee who occupies a position that is designated under section 120 perform all of the duties assigned to that position and be available during his or her off-duty hours to report to work without delay to perform those duties if required to do so by the employer