2023-03-31
Mediation
We have now confirmed mediation dates with the Employer on May 3-4. Obviously, this week’s decision from the Federal Public Sector Labour Relations and Employment Board (FPSLREB) will have impacts on our current negotiations and we are looking forward to discussing this at the bargaining table with the employer.
FPSLREB Decision on 2.3% Market Adjustment
On Monday, March 27, the FPSLREB provided us with their decision on our unfair labour practice complaint against the Treasury Board (TB) about them withholding the 2.3% market adjustment from us in 2016. The FPSLREB determined that the TB committed an unfair labour practice by withholding pay increases and the 2.3% market adjustment because we were in the process of unionizing with CUPE. The FPSLREB also found that the decision not to pay the expected pay increases and market adjustment was a violation of the statutory freeze.
The FPSLREB ordered the TB to pay the 2.3% market adjustment effective April 1, 2016 to all of our members within 90 days (TOs, IMAs, PSEs, and CMs).
There is a link to the full decision below.
Highlights from the decision
The PO group is pay matched to the LES group, not the other way around.
[130] There is no question that the classification exercise took place, but I disagree that the pay-matching of the LES-TO and LES-IM subgroups to the new PO-TCO and PO-IMA positions automatically resulted. In fact, if anything, the reverse is true. The (new) PO groups’ pay was deliberately matched to the (existing) LES groups’ pay, not the other way around.
[170] The Board also orders the payment of the pay raise announced on April 5, 2017, to all employees of the bargaining unit. The LES subgroups should have received the pay raise announced on April 5, 2017, because the rates of pay of the LES subgroups remained benchmarked to 79% of the pay of a senior constable. Similarly, the rates of pay for the PO group have been pay-matched to the pay of the LES groups since 2014. This complaint arose in the context of an application for certification by CUPE to represent both groups, and it now represents a bargaining unit composed of those groups. As such, the PO groups should also benefit from the pay raise announced on April 5, 2017.
Treasury Board engaged in unfair labour practices.
[164] Had the CHRO testified, he might have been able to explain himself, but he did not, and I find no other way to interpret his message: the pay raise was being withheld because of CUPE’s certification application. I cannot, as the respondent urged, attribute this to unfortunate timing. This was retribution against the civilian members because they were participating in the formation of an employee organization.
[165] Therefore, the respondent did not discharge its burden of proving that an unfair labour practice did not occur. I find that it committed an unfair labour practice when it withheld the pay raise announced on April 5, 2017, from the LES subgroups.
[166] The effect of the CHRO’s explanation had a profoundly negative impact on the LES civilian members. As Ms. Hippern so bluntly testified, “The feeling was that we had screwed ourselves out of our pay raise by signing a union card.” The impact is important when determining the appropriate remedy.
Orders
[176] The respondent has committed an unfair labour practice and has failed to comply with s. 56 of the FPSLRA (duty to observe terms and conditions).
[177] The pay raises and market adjustments that the TB announced on April 5, 2017, shall be paid to the employees of the bargaining unit.
[178] The amount of this remedy is to be reduced by any amount that might already have been paid.
[179] These remedies are to be paid within 90 days of the receipt of this decision.
[180] The Board retains jurisdiction over the calculation of the amounts payable pursuant to the above orders. If the parties are unable to agree on the quantum of the remedy, the parties shall, within 90 days of the receipt of this decision, notify the Board in writing that the assistance of the Board is required to resolve the issue.
Frequently Asked Questions
This decision is very new. We are still actively digesting the decision and all of the potential ramifications that will come from it. We do not have all the answers yet. In the meantime, here are a few of the frequently asked questions we have received from you.
Please continue to send any questions or concerns directly to your local Steward or Regional Chairperson. While we may not have all the answers just yet, we will work to get them as quickly as possible. This is the best way to get accurate information directly from the source.
What does the decision mean?
We should have received the 2.3% market adjustment effective April 1, 2016. As retribution for unionizing, TB denied our members this raise. The remedy, as set out in the order, is to correct that error. The corrected salary will result in back pay from April 1, 2016 up until your current rate of pay is updated by the employer to reflect this corrected salary. This back pay will include base pay, overtime, and service pay.
Can the Treasury Board appeal this decision?
The decision of a panel of the Board is final and is not to be questioned or reviewed in any court except by way of judicial review proceedings and only on the grounds set out in ss. 18.1(4)(a), (b), or (e) of the Federal Courts Act.
If the party seeking judicial review cannot present a substantial argument that the logic that led the labour relations decision maker to his or her decision is incorrect or unreasonable, according to the applicable standard for judicial review, the application will be denied.
The FPSLREB website has more information here: https://www.fpslreb-crtespf.gc.ca/en/resources/fact-sheets/procedural-guidance/judicial-review.html
When will we receive our money?
The order states that “[179] These remedies are to be paid within 90 days of the receipt of this decision.” The decision was received by both parties on March 27, 2023.
What if they don’t pay us within 90 days?
We don’t know yet. We have not yet had discussions with the TB about the orders and how they will be implemented.
How does this affect bargaining?
We are actively planning and strategizing for our upcoming mediation session. It would not be in the best interest of our members for us to publicly post about our negotiation strategies.
Paragraph [178] says the amount will be reduced! What does that mean?
This complaint was about the raises of 1.25% for January 1, 2015, 1.25% for January 1, 2016, and 2.3% for April 1, 2016. We already fought for and won the 1.25% raises for 2015 and 2016. These were implemented in 2018. They now have to pay us for the remaining 2.3% from April 1, 2016 onward.
What about interest on the back pay?
The FPSLREB does not have jurisdiction to order interest on the back pay.
I retired, got a promotion, etc. … What does this mean for me?
Everyone’s situation is unique. As soon as we have more information on the calculation of the amounts payable pursuant to the order, we will share it with you.