Know Your Rights - The Policy Grievance: A 98-Pound Weakling Muscles Up
Contributor: Dan Rafferty, Regional Representative/Negotiator Toronto Regional Office
Policy grievances were introduced with the new Public Service Labour Relations Act in 2005. While initial expectations for its usefulness were modest, three recent decisions have revealed that there is more to this apparently limited recourse mechanism than meets the eye.
The characteristics of a policy grievance, per Section 220(1) of the Act are:
At first glance, the policy grievance seemed to be the archetypal 98-pound weakling of grievances. For the union, its applicability appeared limited to a few matters in the collective agreement dealing with union rights (such as consultation, or union dues checkoff) or to situations in which an issue affects all the members in a bargaining unit. It seemed likely that such situations would be rare.
This impression was reinforced by the restrictions imposed on an adjudicator if a policy grievance has been lodged which relates to a matter that could have been the subject of an individual grievance or a group grievance. In such situations, the adjudicator is limited, by Section 232 of the PSLRA, to one or more of the following:
These limitations seemed to limit the adjudicator considerably where an individual or group grievance could have been used. The power to declare does not include ordering corrective action; instead, it simply states what the correct interpretation is for the future. Likewise, the power to require the employer or union to interpret, apply or administer the collective agreement in a specified manner seemed to be very similar to the power to declare.
Muscling Up at the PSLRB & Federal Court
However, three recent decisions have altered perceptions of the policy grievance’s usefulness.
Public Service Alliance of Canada v. TB - Canada Border Services Agency
In a 2008 Public Service Labour Relations Board (PSLRB) decision, the Agency introduced a policy to accommodate employees who might not qualify for the new requirement to carry firearms; it was estimated that about 50% of the members could be affected by the firearms initiative. The union’s policy grievance cited the policy as contrary to the “No Discrimination” article in the collective agreement. The employer contended that the adjudicator had no jurisdiction because the policy was not part of the collective agreement, and it only applied to part of the bargaining unit, not to “the bargaining unit generally”. However, the adjudicator ruled that a policy grievance could be used to challenge any action that arguably contravenes a provision of the collective agreement. She further ruled that the words “the bargaining unit generally” should be given a “fair and liberal interpretation” and that, in that context, a policy grievance need not affect all members of the bargaining unit. Rather, it simply needs to relate to matters affecting the general interests of the community forming the bargaining unit.
PIPSC v.Treasury Board - Correctional Service of Canada (CSC)
The Institute filed a policy grievance on behalf of its CS (Computer Systems) members in CSC who did not receive their Penological Factor Allowance (PFA) within 90 days of the signing of the collective agreement as required. The employer objected that only about 1% of the bargaining unit members (approximately 130 of 13,400) were entitled to receive the PFA, and that therefore the grievance did not relate to “the bargaining unit generally”. The PSLRB adjudicator, however, ruled that when viewed in the context of the principles underlying the Act, including “fair, credible and efficient resolution” of disputes, the words “bargaining unit generally” should be interpreted and applied to provide an efficient recourse mechanism. In this case, the grievance did affect the bargaining unit generally, as it applied to all 130 members who were entitled to the PFA.
Canada v. Canadian Merchant Service Guild
The 2009 Federal Court addressed the adjudicator’s power to order corrective action where the policy grievance relates to a matter that could have been the subject of an individual or group grievance. In the original PSLRB decision, the Department had issued a circular that altered the manner in which Ship’s Officers would be compensated. The union lodged a policy grievance on its own behalf and on behalf of the employees. The adjudicator allowed the grievance and, among other things, ordered retroactive compensation for the employees affected. On judicial review, the employer contended that the adjudicator did not have jurisdiction under Section 232 of the PSLRA to order retroactive compensation. The Court found that Section 232 did not apply in the circumstances because, at the time the union submitted the policy grievance (shortly after the circular was issued), there were no particular individuals or groups of individuals who were identified as affected by the circular and, therefore, who could have grieved. But the Court went further, ruling that even if there could have been individual or group grievances in addition to the policy grievance, the adjudicator had the power to award retroactive compensation. It reasoned that while subsections (a) and (b) of Section 232 empower an adjudicator to declare that the contract is to be interpreted in a certain way or that a provision has been contravened, subsection (c), by using a different word - require - made it clear that something more than a simple declaration was contemplated. By empowering the adjudicator to “require” the employer or the bargaining agent to “interpret, apply or administer” the collective agreement “in a specified manner”, subsection 232 (c) is sufficiently broad to permit an order for retroactive payments.
Policy grievances can now be seen, as a result of these decisions, to be much more broadly applicable and capable of providing meaningful recourse than initially expected. We should be looking carefully at submitting policy grievances in situations where, previously, we would have naturally gravitated to individual or group grievances only. Especially attractive is the ability to resolve issues on behalf of many members quickly (i.e. one grievance step followed by adjudication) without the necessity for a large number of individual grievances or the multiple signatures required for a group grievance.
The 98-pound weakling, as it turns out, has added a lot of muscle and is a force to be reckoned with.