The PSAC filed a “policy grievance” alleging that the CBSA Accommodation Policy as it was being applied to employees who failed the current “arms training” was a violation of Article 19 (No Discrimination) of the PA collective agreement. The Employer raised a preliminary objection on two grounds which the PSLRB did not accept.

This is an important decision because it sets out the parameters of, what can be a policy grievance and also confirms that an adjudicator can decide whether an employer policy is contrary to the collective agreement even if the policy is not incorporated into the collective agreement.

Read the complete decision here (pdf): 569-02-39-arming-control-cbsa

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.

Ottawa, June 20, 2008 - Federal public service employees have won a landmark victory before the Canadian Human Rights Tribunal. In a decision released today, the Tribunal ruled that the Treasury Board term employee policy was discriminatory.

Professional Institute of the Public Service of Canada member Brigitte Lavoie filed the complaint before the Tribunal, alleging that the term employee policy discriminated against women who take maternity leave. The TB policy stated that term employees would automatically become indeterminate after three years of employment yet would not count the leave period.

The Tribunal ruled that the Treasury Board did discriminate by refusing to count the maternity leave period towards continuous employment therefore eliminating her chances of permanent employment and career advancement.

The Tribunal has ordered Treasury Board to count the leave period towards Ms. Lavoie’s continuous employment. It further ordered the Treasury Board to amend the policy to eliminate these discriminatory measures.

“This is significant for term employees. With this ruling, more employees will now be able to enjoy the benefits of the full terms and conditions of their employment in the federal public service and not be subject to gender discrimination”, said Michele Demers, President of the Professional Institute.

The Professional Institute of the Public Service of Canada is a national union representing 55,000 professionals and scientists across Canada.

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 help the grievor
• who will hurt the grievor
• who do you need to consult with
• who can you get advice from
• who will provide representation at next levels

What

• what is the problem, issues to be resolved
• what are the facts
• what is the position of the employer
• what has been said in relation to the problem
• what is the background to this issue
• what were the contributing factors
• what are the consequences of doing nothing
• what meetings, communications have…
• what has the grievor done
• what documents does the grievor have
• what evidence is required
• what is needed from the employer
• what collective agreement, policy is relevant
• what union policies are relevant
• what is being violated
• what are the precedents
• what is the past practice of the employer
• what are the mitigating factors
• what is the position of the local, membership
• what will be the impact of the grievance on
• the grievor, membership, union
• what is the style of the manager hearing the grievance
• what are the options to solve this problem and the consequences of choosing each one
• what can be done to prevent a re occurrence
• what safeguards can be built in

When

• when did the problem occur
• when did the grievor first start trying to
• address this problem - ongoing communications?
• when did the grievor begin employment
• when did meetings, communications …
• when will the time limits expire
• when should/will the hearing take place
• when should the grievance be presented, transmitted

Where

• where exactly did this take place
• where was the grievor at that time
• where were others - supervisor, witnesses
• where was furniture, vehicles - distances
• where does the employee work
• where can I get corroboration of the grievor’s version
• where are the grievance forms

Why

• why is this a problem
• why did the employer take action/not act
• why did this occur
• why did this happen to this particular employee
• why did the grievor do what s/he did
• why is a grievance necessary
• why is this being pursued
• why do people think the grievor isinnocent/guilty
• why are people supporting/not supporting the grievor/grievor’s version

Want

• wants redress in full
• wants a hearing at each level
• wants documents removed from files and destroyed
• wants training for respondent, unit, workplace
• wants harassment free environment
• wants a declaration collective agreement violated
• wants reinstatement with no loss of pay and benefits
• wants reinstatement of sick leave credits
• wants Memorandum of Understanding outlining commitments and agreements

Whoa

• Have I correctly identified the problem?
• Have I treated this as an organizing/educational opportunity how will this
• contribute to membership education and involvement?
• Have I analyzed the case and developed arguments and counterarguments?
• Am I well prepared for the hearing?
• Have I organized the file and completed the PSAC Grievance File Checklist?
• Have I obtained all the documents as listed?
• Are all the statements signed and witnessed?
• Is the Steward Factsheet completed?
• Are all my notes legible, signed and dated?
• Are copies of the grievance and transmittal forms legible?
• When do I need to forward the complete file to the representative at the next level?

“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.

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 employe’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.

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.