|
Archives
PAFSO letter
August 12th, 2005
Mr. Marc Thibodeau
Negotiator
Treasury Board of Canada, Secretariat
Collective Bargaining
300 Laurier Avenue West
Ottawa, ON K1A 0R5
Dear Mr. Thibodeau,
Re.: Employees acting in FS positions on July 1, 2005
It is my understanding that the departments’ interpretation of the pay regulations have resulted in employees in receipt of acting pay, prior to the conversion who continued to act in these positions after the conversion, receiving a substantial decrease in acting pay than what they were receiving prior to conversion. This interpretation flies in the face of the intent of the pay regulations that clearly are intended to ensure that employees in these situations do not earn less as a result of reclassification or conversion decisions which are imposed on them by the employer. There are two groups of these employees:
(1) Non-FS employees, who were acting in FS-2 level positions prior to the introduction of the new FS standard and who continued to act in these positions afterwards,
(2) FSDP employees assigned to FS-2 level positions in receipt of acting pay prior to the introduction of the new FS standard, who continued to act in this position afterwards.
It is my understanding that the departments are reappointing both groups of employees to their same acting positions at the new classification level resulting in a substantial reduction to the acting pay they were receiving prior to the introduction of the new FS standard. I can find no legal authority for such an unprecedented interpretation of the pay regulations.
There are a number of possible scenarios that would have resulted from the introduction of the new FS standard. The FSDP or Non-FS employee who was acting in an FS-2 position prior to conversion and continues to act in this same position after conversion, could be in a position that is now classified at the FS-2, FS-3 or FS-4 level in the new system. FSDPs who are now classified at the FS-1 or FS-2 levels and Non-FS employees who are acting in positions that are now classified at the FS-2 level (in the new system) would be in a position that has a lower attainable maximum rate of pay than the FS-2 position in the previous classification system. These employees should be salary protected for as long as they occupy the acting position. FSDP employees who are now classified at the FS-1 and FS-2 level, and Non-FS employees who are acting in positions that are now classified at the FS-3 level, should be placed in the FS-3 rates of pay at a salary nearest to but not less than the salary they were receiving in the previous FS-2 salary range prior to the conversion. FSDP employees, who are now classified at the FS-1 or FS-2 level and Non-FS employees, who are acting in positions that are now classified at the FS-4 level should have their acting rate of pay recalculated in accordance with the promotion regulations. All of these scenarios can be resolved by initially treating the employees in these situations, the same as the substantive FS-2 level employees by bloc converting them to the new FS-3 level. In the interests of equity, fairness and transparency, this would make the most sense. This is what I thought would happen when we negotiated the tentative agreement.
However, if you apply the pay regulations, the general principle is, an employee, in these situations, should not receive less salary than he/she was receiving prior to the introduction of the new standard. This is true whether it is a reclassification, or a conversion exercise.
A review of the pay regulations reveals the following:
Regulations respecting pay or reclassification or conversion
Part 1A : Reclassification to a group or level having a lower attainable maximum rate of pay
3. Prior to a position being reclassified to a group or level having a lower attainable maximum rate of pay, the incumbent shall be so notified in writing and advised therein of the effective date of this change.
4. Downward reclassification notwithstanding, an encumbered position shall be deemed to have retained for all purposes the former group and level. With respect to the pay of the incumbent this may be cited as salary protection status and, subject to Section 5.(2) below shall apply until the position is vacated or the attainable maximum of the reclassified level, as revised from time to time, becomes greater than that applicable, as revised from time to time, to the former classification level.
Note: The terms "attainable maximum rate of pay" in these regulations means the rate attainable for "fully satisfactory" performance in the case of levels covered by a performance pay plan or the maximum salary rate in the case of all other groups and levels.
I am assuming that non-FS employees in acting FS-2 positions prior to the introduction of the new FS standard who continued to act in these positions afterwards would be covered by these provisions because their substantive position was not affected by the conversion. You cannot circumvent the salary protection provisions outlined above by pretending to end the acting assignment on paper, and reappointing them to the new classification level of the position resulting in a substantial decrease in salary. "An encumbered position shall be deemed to have retained for all purposes the former group and level". The principle here is the employee does not suffer a decrease in salary as the result of a downward reclassification.
If you treat this as a conversion exercise, then
Part III: Conversion to new group and/or levels or to new classification plans and/or pay structures Section 13 would apply
13. Notwithstanding subsection (1) of Section 20 of the Public Service Terms and Conditions of Employment Regulations, where an employee is subject to conversion to a new group and/or level or new classification plan and/or level or new classification plan and/or pay structure and is assigned other than at his or her request or by demotion, to a position in the new group and/or level on new classification plan and/or pay structure, he or she shall be entitled to be paid a rate of pay for services rendered on the date of assignment as follows:
(A) the rates of pay applicable to the position held by the employee in the new classification and pay plan; or
(B) the rates of pay applicable to the position held by the employee in the former classification and pay plan; or
(C) the rates of pay applicable to the position held by the employee in the new classification and pay plan immediately before the assignment to another position in the new classification and pay plan; whichever has the highest attainable maximum rate. (underlining is ours)
In this case the employee has been assigned to a position in the new group and/or level (FS-2) that has a lower attainable maximum rate of pay, and is entitled to be paid a rate of pay which produces the highest attainable maximum rate. According to section 13(b) this rate would be "the rates of pay applicable to the position held by the employee in the former classification and pay plan."
I would point out that the reference to "position" is not modified by the word "substantive" which is significant. For further support of this interpretation, I would refer you to Bulletin No. 49-87 Salary Protection Policy - Interpretation applicable to the reclassification or conversion Regulations and PSAC/PIPS Memorandum of Understanding. Again this bulletin speaks to the incumbents of "positions" reclassified or converted. It is not restricted to employee’s substantive positions.
A review of the Compensation and Pay Administration policy Reclassification/Conversion also supports this interpretation. (See section 3.2.2 entitled Lower Level)
"If a position is converted to a group and/or level having a lower attainable maximum rate of pay, the employee shall retain the rates of pay of the former group and level."
Again the absence of the word "substantive" is significant. The regulation was obviously intended to cover both employees who are acting in positions, as well as substantive level employees in these situations, as they would equally be affected by this decision.
I would refer you to the Terms and Conditions of Employment Regulations
46 (F) (2)"An employee who is deployed or appointed to a new substantive level having a maximum rate of pay lower than the level for which acting pay is being paid while continuing to act in the higher classification level shall have the acting rate of pay recalculated pursuant to Sections 24 or 26. Where such recalculation results in a rate of pay which is equal to or less than the employee’s previous acting rate of pay, the employee shall retain the previously established acting rate of pay and increment date in the higher classification level."
While not directly on point for non-FS employees acting in FS positions, but certainly applicable to FSDP employees acting in FS-2 positions, prior to the conversion who continue to act in these positions afterwards.
This regulation makes it clear that employees whose substantive level is changed while continuing to act in a higher level position are entitled to have their acting pay recalculated. However, if the recalculation produces a lesser rate of pay "the employee shall retain the previously established acting rate of pay and increment date in the higher classification level".
I would also refer you to
Part III, Section 15 of the Regulations respecting pay or reclassification orconversion
15. Where a new group and/or level is established, or a new classification plan and pay structure is introduced for an established group, and an employee is initially assigned from the former level to a position in that group, he or she shall be paid on the effective date of that assignment at the rate of pay that is nearest to but not less than the rate of pay he or she would otherwise be entitled to receive on that date.
This section should be read together with the sections noted above which provide for salary protection, where the assignment from the former level to a position in the new standard has a lower attainable maximum rate of pay. However, this section would have application to the FSDP employee acting in an FS-2 position prior to conversion that is now converted to an FS-3 position in the new standard. We say this because the regulation does not refer to an employee’s substantive level it says "an employee initially assigned from the former level to a position in that group...."
The reference to our understanding of "nearest to but not less than" in Section 15 is a reference to both the employee’s increment as well as the employee’s rate of pay. In other words, if the rate of pay places the employee at an increment which is less than where he/she was prior to conversion the employee would be placed in the new range of rates at a step immediately below the increment the employee was receiving on the day of the conversion.
All of these authorities stand for the principle that an employee’s pay cannot be decreased as a result of a reclassification or conversion exercise that results in a lower attainable maximum for the position the employee occupies.
There is no authority in the regulations to convert employees to their substantive level and reappoint them to the same position which they acted in prior to the conversion and continue to act in after conversion. The acting assignment did not end when conversion happened, the employee continued in the same position.
I have also reviewed the section (1) provisions of Section 46 (F) of the Public Service Terms and Conditions of Employment Regulations. I had mentioned Section (2) earlier in this letter. While Section (2) addresses the situation where the employee’s substantive level is changed and the employee continues to act, Section (1) addresses the situations where the employee ceases to act.
46.(F) Subsequent deployments or appointments
(1) An employee in receipt of acting pay who is deployed or appointed to a new substantive level that is:
a. The same as that for which acting pay is being paid shall:
(i) be paid at the same rate of pay; and
(ii) at the end of the increment period for the higher classification level, be eligible for an increment in accordance with the applicable provisions in Section 46.(D)
b. Higher than that for which acting pay is being paid shall:
(i) be paid at the rate of pay calculated pursuant to Sections 24 or 26, and
(ii) should such rate of pay be less than the employee’s previous acting rate of pay, be paid at the rate of pay in the higher salary range that is nearest to but not less than the previous acting rate of pay.
c. Lower than that for which acting pay is being paid shall:
(i) be paid at the rate of pay calculated pursuant to Section 24 or 26; and
(ii) receive credit for increments from the date the acting duties in the higher level position commenced, in accordance with the provisions of Section 46. (D)
The scenarios described at Section 46 (F) (1) for example concerns an employee who is appointed to a new substantive level, which is at the same level as the position for which he/she was receiving acting pay e.g. a PM-2 acting in a PM-2 position is appointed to a PM-2 position. This would not cover a situation where an FSDP employee acting in an FS-2 position under the previous classification plan is appointed to an FS-2 substantive level in the new plan and continues to act in the same position which has been classified under the new plan as FS-2. The rational is the attainable maximum in the new FS-2 position ($74,000) is considerably less than the attainable maximum under the old FS-2 position ($89,000). In this case the salary protection principle would apply.
Section 46 (F) (1) (b) concerns an employee who is appointed to a new substantive level where the attainable maximum rate of pay is higher than the attainable maximum rate of pay in the acting position. E.g. a PM-2 acting in a PM-3 position is appointed to a PM-4 position. There are no scenarios in the FS conversion where the employee’s substantive level would be higher than what the employee would receive in acting pay.
46 (F) (1) (c) addresses a situation where the employee is appointed to a new substantive level which has a salary maximum lower than the salary maximum in the acting position. E.g. a PM-2 employee acting in a PM-3 position is appointed to a PM -1 substantive level position. This section describes what the employees rate of pay would be in the PM-1 position. This section may apply to the FS-1 or FS-2 employees in the new classification system, when they cease to act in the salary protected position.
In summary, the pay regulations generally recognize that classification decisions whether as a result of a reclassification or conversion exercise that impact on the position the employee occupies, should not result in a decrease in the employees salary.
I would appreciate receiving the TBS’s position on these conversion pay issues as early as possible, as I am sure you can appreciate the level of anxiety amongst our members affected by this interpretation of these regulations is growing.
Sincerely,
Ron Cochrane
Executive Director
cc: John Bonar
Don Graham
Jeff Laviolette
|
|
