Using the 7 “W”’s…”Once the steward identifies what the problem is, they will begin to gather the facts. What kinds of questions will assist them in that process? The following list provides a number of examples to assist you in the fact gathering exercise.

Who

• who are the grievors (and contact information)
• who are the protagonists
• who caused/contributed to the problem
• who are the supervisors/managers
• who are the witnesses
• who will provide signed statements, testify
• who did the grievor tell
• who else has this problem, now or in the past
• who will be affected by the outcome
• who has information you need
• who will investigate
• who will provide representation
• who will set up the hearing
• who will be at the hearing
• who will “hurt” the grievor
• who will “help” the grievor
• who do you need to consult with
• who can you get advice from
• who will provide representation at next levels

(more…)

Nominate the exceptional work that is bringing PSAC locals in BC together!

Local Development has been a successful initiative that has been with us for many years. This year, we in BC want to get even more creative with developing strong and vibrant Locals in the workplace and as a result we have created the PSAC Local Achievement Awards. We want to recognize and honor Locals who have achieved workplace victories on behalf of Sisters and Brothers in a variety of categories.

Building strong Locals, one steward at a time.

This is an initiative of the BC Stewards Network, for more information, contact Dave Jackson at the Victoria RO at (250) 950 1050 | 1 (866) 953 1050 | email jacksod@psac.com and download the …

• Local Achievement Awards poster
• Local Achievement Awards background information
• Local Achievement Awards nomination form

A nomination form is available, to be used by Locals and/or members to nominate a Local whose victory at the Local level deserves recognition. Watch for more information coming soon in the mail.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more of them in the Steward’s Network section of the site.

”Do I have to advise my employer of the nature of my illness?”

“Can the employer force me to provide a doctor’s certificate or demand that I undergo a medical examination?”

The following document provides you with some well established principles in these and other related areas. From a current examination of the case law on sick leave, medical certificates and medical examinations, the following principles will serve as a guide.

We should begin with the basic premise that the employer has the right to insist on a medical certificate as a condition of granting sick leave. In the case of most collective agreements, the employer’s right to impose such a requirement is explicit. Where a collective agreement is silent on this point, the employer could successfully argue that its residual management rights (i.e., all rights not modified by collective agreement language) permit it to require proof of sickness. If a collective agreement specifies (as some do), that the employer could only require a medical certificate after so many days of absence in a given year, then the employer’s right would be restricted.

Continue reading in the Sick Leave, Medical Certificates, Medical Exams and Related Issues - Some Principles handout (pdf), prepared by the PSAC Education Section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more of them in the Steward’s Network section of the site.

Do you have any rights when your employer tells you that you are to be present at some type of disciplinary meeting? Read the following resource document and see what the established principles are regarding this issue.

Collective agreement language describing rights to union representation in matters of discipline varies in its strength and scope. Most collective agreements covering PSAC members contain a provision providing an employee with the right to union representation at the time s/he is interviewed regarding allegations of misconduct, or alternatively, at the time discipline is imposed. Some agreements oblige the employer to remind the employee of his/her rights to representation. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. Other language refers to time limits for placing items of a disciplinary nature on an employee’s file, and notifying the employee of whether or not the file will be used at the meeting.

The scope of representational rights is found in the precise wording of the collective agreement.

Read more in the Discipline - Rights to Union Representation (pdf) document, prepared by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Operational Requirements

1. Operational requirements must be based on the work itself to be performed, not on administrative or economic criteria.
2. Consideration of overtime costs are not proper concerns in determining whether or not operational requirements exist.
3. Operational requirements are a question of fact to be determined in each case.
4. The initial onus rests with the grievor to demonstrate that operational requirements were not a valid reason on the part of the employer to deny a benefit of the collective agreement (e.g., leave). Once that burden is discharged, the onus of demonstrating that operational requirements were valid reasons for denying the benefit will then rest with the employer. Of the two burdens, the employer’s burden is more onerous. The reasons are twofold:
   • Knowledge of operating requirements is in the hands of the employer. More importantly, the employer has undertaken an obligation, the release from which is contemplated only in special circumstances. To not impose the onus on the employer to establish the exceptions to the right granted under the relevant provision in the collective agreement could undermine its intent.
5. It has been held that the employer must consider the real alternatives available regarding the use of other staff. That said, the employer’s refusal to consider the use of other staff does not necessarily mean that denial of leave is unreasonable.
6. The employer must organize its operations and the service so that employees can exercise their rights under the collective agreement. The employer cannot hide behind staff shortages and operational demands such as training. These are not acceptable excuses to relieve the employer of its obligations.
7. There may be unusual operational requirements of a temporary nature when an employer may block out periods of time in which leave will not be granted because of anticipated needs (e.g. new plants, increase in cross-border traffic).
   When the employer plans the operations and clearly knows its operational requirements, it has been held that the employer can rightly refuse a request for, for example, compensatory leave.

Download the “Operational Requirements: Some Principles” handout (pdf), developed by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Acting Pay: Some Principles

With the elimination of positions and staff cuts, employees may find themselves assigned additional duties. With financial constraints, managers may be under increased pressure to stay within existing budgets or cut costs. As employers meet their employment equity obligations, employees may receive a variety of developmental opportunities. In these kinds of circumstances, employees may be entitled to acting pay.

The conditions under which entitlement to acting pay exists are determined by collective bargaining. The following is from the collective agreement between PSAC and Treasury Board for the Program and Administrative Services Group (expiry date of 20 June 2007):

64.07

(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least three (3) consecutive working days or shifts, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

(b) When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period. When interpreting collective agreement language, it is important to break down the provision by conditions and obligations. Then, it is easier to separate what the provision does say, from what it does not say.

For the entitlement to acting pay to take effect, there are 3 conditions to be satisfied ….

Continue reading in the “Acting Pay: Some Principles” handout (pdf), developed by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards …

Discipline - Mitigating Factors

Mitigating factors are considered in determining an appropriate disciplinary penalty. They may be taken into account by an employer at the time a disciplinary measure is being decided. Or, they may be raised by the union during representation.

In cases of discipline, representation is usually concerned with two areas. The first concerns whether or not the wrongdoing occurred as alleged, or whether or not the employer can prove that some measure of discipline is warranted. Sometimes, the union may concede that an employee’s misconduct constitutes grounds for some form of discipline. The second area relates to the penalty and its appropriateness in the circumstances.

There may be factors that warrant reducing a disciplinary penalty. These are called “mitigating factors”. The burden of proof in disciplinary cases rests with the employer but the responsibility for raising mitigating factors lies with the union. The burden of proving mitigating factors also rests with the union. However, the onus is on the employer to rebut or explain why such factors should not affect the penalty imposed.

Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction. If an arbitrator does not receive evidence from the union, s/he has no basis on which to substitute a lesser penalty. Though by no means exhaustive or comprehensive, the following will provide stewards with a basic list of mitigating factors.

Continue reading in the “Discipline - Mitigating Factors” handout (pdf), prepared by the PSAC education section.

… an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

PSAC members covered under the National Joint Council directives (TB, CFIA and CRA) will find the following adjudication decision of some importance. The PIPSC decision interprets the expression sole caregiver as defined in the NJC Travel Directive.

TRAVEL ALLOWANCE - EXPENSE ALLOWANCE

Travel Directive – Reimbursement of dependant-care expenses – Whether the grievor was the “sole caregiver” at the time of travel

The grievor incurred expenses for the care of his two sons while he was on business travel – at that time, his wife was also on business travel – his wife was not employed in the public service – the employer denied the grievor’s claim for reimbursement of dependant-care expenses – the adjudicator found that, in the circumstances, the grievor was the sole caregiver of his sons at the time of travel and that he was entitled to be reimbursed for the dependant-care expenses that he incurred as a result of travelling on business.

Grievance allowed.

Read the full decision at the PSLRB website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

The Duty of Fair Representation - What the law says

The Canada Labour Code, Part 1, the Public Service Labour Relations Act (PSLRA), and most provincial and territorial labour laws address a union’s duty of fair representation (DFR). The language varies from statute to statute, but essentially, the duty of fair representation requires a union to treat bargaining unit members fairly and honestly, in a manner that is not arbitrary, discriminatory or in bad faith. Part 1 of the Canada Labour Code (Sec. 37) and Sec. 187 of the PSLRA describe it as follows:

Duty of fair representation

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

Unfair representation by bargaining agent

187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Read more, including some legal principles, origins of the DFR, and some tips for local officers and stewards in the “Duty of Fair Representation - What the law says” handout (pdf), prepared by the PSAC education section.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Special Leave With Pay - Snowstorms/Inclement Weather
Most collective agreements covering PSAC members contain a provision similar, if not identical, to the following:

At its discretion, the employer may grant:

(a) leave with pay when circumstances not directly attributable to the
employee prevent his or her reporting for duty; such leave shall
not be unreasonably withheld;

The following principles outline what we have learned from arbitrators’ decisions on the many grievances on denial of “special leave”. While the above provision can also apply to a variety of other circumstances that prevent an employee’s reporting for work, the following references apply to snow storms and other weather-related conditions. The references represent a sample of arbitrators’ decisions.

1. The main thrust of the provision is to provide for the exceptional treatment of particular employees under certain kinds of circumstances. This is why one speaks of “special leave”. Ultimately, each case must turn on its own particular facts.

2. The first issue to be decided is whether the circumstances preventing the employee from reporting for duty were or were not directly attributable to the employee. The conclusion must be arrived at reasonably on the basis of the information obtained after a due and diligent enquiry by the employer.

Read more, in the ‘Special Leave With Pay - Snowstorms/Inclement weather’ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Unfair labour practices interfere with workers’ rights to join and participate in the union, or in the union’s right to represent its members. Unfair labour practices target union representatives or union members for discriminatory treatment because they exercise their union rights. Federal, provincial and territorial labour laws describe unfair labour practices as prohibited conduct, and provide a complaint mechanism to have the matter reviewed. If the labour board agrees that the conduct has violated the law, it can intervene and order that the practice stop.

Before the first labour laws were enacted in Canada, workers had exercised their rights to strike, form unions and bargain collectively before it became “legal” to do so. When these fundamental rights found their place in the early labour laws, they came with protections. Legislators early on decided that legislative provisions were needed to prohibit an employer from abusing its power to circumvent or undermine these rights. Without the protections, it was thought that employers could basically buy the type of union or union representative that served their needs, or use coercion and intimidation to prevent workers from joining or participating in the union or otherwise exercising their rights. These first “unfair labour practice” provisions were the precursors of our modern versions. Today, in every jurisdiction, each labour code outlines in detail those “unfair labour practices” prohibited under the statute.

The law provides a framework to protect union representatives and the members they represent from these illegal practices. Over time, there have been many labour board decisions that have sent a strong message to employers that these rights must be observed and taken seriously. By the same token, an equally strong message has been conveyed to unions that only serious allegations should be brought as unfair labour practice complaints. Therefore, to protect and promote the effectiveness of the union at the workplace, we need to consider the unfair labour practice complaint as but one option among a variety of tools and strategies.

Read more, including some tips for union representatives, in the ‘unfair labour practices’ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Depending on where they work, BC PSAC members may be covered under one of a number of different labour laws. Members who work in federal government departments with Treasury board as the employer are covered by the Public Service Labour Relations Act (PSLRA). PSAC members who work at Airports, Canada Post, Nordion International, IMP Comox and Granville Island fall under the Canada Labour Code (CLC). Still other PSAC members work in employment situations that come under the jurisdiction of provincial labour legislation, for example Commissionaires.

Despite the different labour laws that apply to PSAC members, the same basic union rights are recognized and protected in each piece of legislation. Following are brief descriptions of these important rights.

The right to join a Union: All workers in Canada have a right to join a union. That right is protected under both federal and provincial labour law, the Canadian Charter of Human Rights and Canada’s Constitution.

The right to participate in Union activities: The law not only protects a worker’s right to join a union, but also recognizes the worker’s right to be an active union member.

The right to bargain collectively: In forming unions, workers join together to demand a say in the determination of their wages and working conditions. They act collectively to pressure the employer to come to the bargaining table and negotiate with the union for one contract of employment that will apply equally to all employees. This is the process of collective bargaining and it is one of our most essential union rights.

The right to strike: Sometimes just asking at the bargaining table isn’t enough to get a good collective agreement. At this point, the union members have to decide whether or not they are willing to take strike action to support their bargaining demands. This is not an easy decision. No one wants a strike. Sometimes, however, we need to strike in order to convince the employer that the members are serious about their bargaining demands.

The right to grieve: The end result of collective bargaining is a new or revised collective agreement which sets out employees’ rights on the job. This is not the end of the collective bargaining process however. Now the employees have to make sure the collective agreement works!

Read more in the ‘our rights under the law’ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.

This portion of the PSAC BC website was the brainchild of the PSAC members who participated in the June 2007 Advanced Steward Training course held in Victoria BC. Visit the Stewards Network section of psacbc.com here.

The goals of this website are:

• Create a stewards support network;
• Educate stewards through active & timely communication; and
• Maintain a current list of stewards and their contact information

You can expect to see weekly postings of timely information that will assist stewards in their workplace.

We also have a “forum” section on our website. The forum will be used by stewards and others who play a workplace problem solving role to educate and communicate with each other and share problem solving techniques and/or best practises. It is expected that Stewards will actively participate in respectful discussions which allow them to meet the goals listed above.

In addition to the forum section we also have an email subscription service where one can sign up to automatically receive any new postings that will be of interest to PSAC stewards, and others who share an interest in workplace problem solving, and assist them in their work.

Depending on where they work, BC PSAC members may be covered under one of a number of different labour laws. Members who work in federal government departments with Treasury board as the employer are covered by the Public Service Labour Relations Act (PSLRA). PSAC members who work at Airports, Canada Post, Nordion International, IMP Comox and Granville Island fall under the Canada Labour Code (CLC). Still other PSAC members work in employment situations that come under the jurisdiction of provincial labour legislation, for example Commissionaires.

(more…)

Role of union stewards supported by PSLRB

Stewards must be able to operate in the workplace without interference or intimidation for the union to be effective. A recent decision by the Public Service Labour Relations Board (PSLRB) reinforces the rights needed by stewards to work on behalf of their members.

Stewards–and all union representatives–are protected against employer intimidation and interference under the Public Service Labour Relations Act (PSLRA). Without these protections, the union could not speak up for the interests of its members in the workplace. Enforcing these rights is critical, and the recent decision in the Perka case provides a strong example for all unions covered by the PSLRA.

Protection provided by legislation

The PSLRA provides detailed protections for union representatives and members that prevent the employer from:

• Interfering with how a union runs its own affairs;
• Interfering with the representation that the union provides to its members;
• Imposing discipline or discriminating against anyone because of his or her lawful activities in the union.

The Unfair Labour Practices section of the PSLRA should be consulted for a full view of the protections provided, but the essential point is that the employer cannot prevent union representatives from carrying out their legitimate duties. In the Perka case, the union was able to prove the employer had violated the protections it was required to respect.

Go to the following link to read the complete decision.

Grievance file checklist (pdf)
Grievance flowchart (pdf) Includes timelines
Grievance presentation form (pdf)
Grievance transmittal form (pdf)
Steward fact sheet (pdf) Handy form for keeping all grievance-related information in one place
Treasury Board Grievance forms (scroll down to Labour Relations)