COLLECTIVE BARGAINING UPDATE – NEXT STEPS

06 November 2012

Since our last collective bargaining update we have appeared before a Public Interest Commission [PIC], on October 4 and 5 2012 and posted a short summary of the presentations from both the PAFSO perspective and the TBS submissions. You can access a complete copy of these presentations by going to our web site .The submissions are on PDF files. In the last update we provided a summary of the major PIC recommendations which was released to the parties October 23, 2012.

This update will describe the next steps on the road to negotiating a new FS collective agreement.

For those of our members who are not familiar with the term PIC as noted earlier it stands for Public Interest Commission and it is one of two methods of dispute settlement resolutions prescribed in the Public Service Labour Relations Act. The other method prescribed for resolving disputes is the Interest Arbitration Process which results in a binding arbitral award. A PIC unlike the binding arbitration process produces a report with non binding recommendations intended to encourage further dialogue and to assist the parties to the negotiations to reach a tentative agreement subject to a ratification process by the bargaining agents members that would be subject to the agreement. However, if the parties are unable to reach a tentative agreement the Act provides for the possibility of job action. It should be noted that unlike other labour jurisdictions the PSLRA does not provide for the employer to “lock out” its’ employees.

Under the PSLRA there are two types of bargaining agent members identified in this dispute settlement process. Employees who can legally withdraw their services, and employees who are prevented by law from withdrawing their services. This update will explain the provisions in the Act applicable to these two scenarios.

EMPLOYEES WHO ARE PREVENTED BY LAW FROM JOB ACTION

Foreign Service officers who are assigned to a position that has been identified by the parties in an essential services agreement or the PSLRB that provides an essential service are prevented from engaging in job action[s]. An essential service is described at Section 4 of the PSLRA as meaning;

“essential service” means 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.

An essential service agreement is defined at section 4 of the PSLRA as meaning;

“essential services agreement” means an agreement between the employer and the bargaining agent for a bargaining unit that identifies

  • (a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services;
  • (b) the number of those positions that are necessary for that purpose; and
  • (c) the specific positions that are necessary for that purpose.

Employees who are identified in an essential service agreement will be sent a letter identifying them of their status as an essential service employee. The letter will also identify the level of the essential service by way of 3 separate codes. Code 1 means the employee cannot withdraw their services under any circumstance during a strike. Codes 2 and 3 allow the essential service employee the right to withdraw their service until the condition precedent presents itself. The departments are responsible for informing the employees when the condition precedents are met.

Employees who are code 1 level employees are entitled to the full benefits of the FS collective agreement during a work stoppage. Employees who are code 2 or 3 are only entitled to the full benefits of the FS collective agreement when the condition precedent for their designation on the essential service agreement is met.

In order for an employee to be designated as essential they must have received a letter from the department verifying this, so in the event of a picket line they will not be unduly delayed in reporting for work.

SECTION 130

Notification of employees

130. (1) The employer must provide every employee who occupies a position that has been identified in an essential services agreement as being a position that is necessary for the employer to provide essential services with a notice informing the employee that the employee occupies such a position.

Notification of change

(2) A notice given under this section remains valid so long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by the employee is no longer necessary for the employer to provide essential services

Employees who receive notification from the employer that they have been identified as part of an essential services agreement continue to be governed by the terms and conditions that were in place when notice to bargain was given until a revised agreement is reached.

SECTION 132

Duty to observe terms and conditions

132. 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 the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

Please note that PAFSO has entered into an ESA agreement with DFAIT, CIC and CBSA and that agreement will be or has been registered with the PSLRB.

EMPLOYEES WHO CAN PARTICIPATE IN JOB ACTIONS

Employees in the Foreign Service officer bargaining unit who do not receive a letter advising them that they have been designated as part of an essential service agreement are eligible to participate in job actions.

THE RULES GOVERNING JOB ACTION

Beginning in April 2005 bargaining agents no longer have the authority to call for job action without first consulting members of the bargaining unit and conducting a vote by secret ballot.

SECTION 184

Division 11
Strike Votes

Secret ballot vote

184. (1) In order to obtain approval to declare or authorize a strike, an employee organization must hold a vote by secret ballot among all of the employees in the bargaining unit conducted in a manner that ensures that the employees are given a reasonable opportunity to participate in the vote and be informed of the results.

Application to have the vote declared invalid

(2) An employee who is a member of a bargaining unit for which a vote referred to in subsection (1) was held and who alleges that there were irregularities in the conduct of the vote may, no later than 10 days after the day the results of the vote are announced, make an application to the Board to have the vote declared invalid.

Dismissal of Application

(3) The Board may summarily dismiss the application if it is satisfied that, even if the alleged irregularities did occur, the outcome of the vote would not have been different.

New vote

(4) If the Board declares the vote invalid, it may order that a new vote be held in accordance with the conditions it specifies in the order.

According to the PSLRB Regulations, the bargaining agent is required to advise the Board immediately after the results of the strike vote are known.

Division 5
Strike Vote

Statement respecting strike vote

54. The bargaining agent shall, no later than the day following that on which the results of a strike vote are announced, file with the Executive Director a statement respecting the strike vote in Form 14 of the schedule.

Applications to have a strike vote declared invalid

55. An application for a declaration that a strike vote is invalid under subsection 184(2) of the Act shall be filed in triplicate in Form 15 of the schedule.

Bargaining agents reply

56. A bargaining agent shall, no later than five days after receipt of a copy of the application for a declaration that a strike vote is invalid, file a reply to it.

The PSLRA describes the rules governing strikes in the negative, i.e the circumstances or conditions that prevent job actions. These provisions are described at SECTION 194. For the most part the rules are self explanatory.

Prohibitions Relating to Strikes

Declaration or authorization of strike prohibited

194. (1) No employee organization shall declare or authorize a strike in respect of a bargaining unit, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike in respect of a bargaining unit or the participation of employees in such a strike, if

  • (a) the employee organization has not been certified by the Board as the bargaining agent for the bargaining unit;
  • (b) a collective agreement applying to the bargaining unit is in force;
  • (c) no collective agreement is in force, and no notice to bargain collectively has been given, in respect of the bargaining unit;
  • (d) no collective agreement is in force, and a notice to bargain collectively has been given, in respect of the bargaining unit, and no request for conciliation has been made under section 161;
  • (e) the process for resolution of a dispute applicable to the bargaining unit is arbitration;
  • (f) the process for resolution of a dispute applicable to the bargaining unit is conciliation and a notice to enter into an essential services agreement has been given under section 122 by the employer or the employee organization, as bargaining agent for the bargaining unit and no essential services agreement is in force in respect of the bargaining unit;
  • (g) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a notice to amend an essential services agreement has been given under section 126 by the employer or the employee organization, as bargaining agent for the bargaining unit, and
    • (i) the essential services agreement has not been amended as a result of that notice, or
    • (ii) if an application referred to in subsection 127(1) was made by the employer or the employee organization, the application has not been finally disposed of by the Board;
  • (h) the process for resolution of a dispute in respect of the bargaining unit is conciliation and less than 30 clear days have elapsed since
    • (i) the date an essential services agreement came into force in respect of the bargaining unit, or
    • (ii) the date an application referred to in subsection 123(1) made by the employer or the employee organization as bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;
  • (i) the process for resolution of a dispute in respect of the bargaining unit is conciliation and the employer or the employee organization, as bargaining agent for the bargaining unit, has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since
    • (i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or
    • (ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was mad
  • (j) an essential services agreement binding on the employee organization and the employer has been suspended by order under section 131;
  • (k) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a public interest commission has not been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement, unless the employee organization has been notified under subsection 162(3) that a public interest commission will not be established;
  • (l) the employee organization, as bargaining agent for the bargaining unit, has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the employee organization to enter into or revise a collective agreement and less than seven clear days have elapsed since the date the notice was given under that subsection;
  • (m) a public interest commission has been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement and the Chairperson has not yet sent the commission’s report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;
  • (n) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;
  • (o) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;
  • (p) a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer’s last offer;
  • (q) the employee organization has failed to conduct a secret ballot vote in accordance with section 184; or
  • (r) the employee organization has conducted a secret ballot vote in accordance with section 184 and
    • (i) it has not received the approval of a majority of the employees who voted, or
    • (ii) if it has received the approval of a majority of the employees who voted, more than 60 clear days, or any longer period that may be agreed to in writing by the employee organization and the employer, have elapsed since the vote was held.

Essential services

(2) No employee organization shall declare or authorize a strike the effect of which is or would be to involve the participation of any employee who occupies a position that is necessary under an essential services agreement for the employer to provide essential services, and no officer or representative of an employee organization shall counsel or procure the participation of such employees in a strike.

Should the resumption of negotiations fail to produce a tentative agreement for the FS group following the release of the PIC’s recommendations and job action may be necessary, PAFSO will conduct a “strike vote” as required by Section 184. As part of the voting procedure, we will explain the issues that are at impasse and the rationale for the PAFSO position. We will continue to keep you informed of any developments.

FSDS AND LEGAL STRIKE POSITION

The relevant section of the FSDs is FSD 69.3 Legal Strike Position, which reads as follows:

69.3.1 Notwithstanding the provisions of the Treasury Board policy on strikes, the Foreign Service Directives, with the exception of FSD 56 – Foreign service Incentive Allowances and FSD 58 – Post Differential Allowance shall continue to apply in a legal strike situation.

The PAFSO Negotiations Team

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