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Know Your Rights - What Are Operational Requirements?

A PIPSC member applied for Leave with Income Averaging (LWIA) for a period of 12 weeks. The member's leave application was denied and unidentified “operational requirements” were cited as the reason for the denial. The member then applied for Leave Without Pay (LWOP) for the 12-week period and the manager approved this leave.

The manager refused to reconsider the issue although a steward pointed out that whether the employee was on LWIA or LWOP it would have the same effect on the employer’s operations - the employee would be away from work for 12 weeks. Many managers within the public service do not understand the meaning of “operational requirements”.

How do we define “operational requirements”? In Power v. Treasury Board, the Public Service Staff Relations Board stated that the employer could not argue operational requirements for financial reasons or for future and hypothetical needs:

“It would be unwise to attempt to provide a universally valid definition of bona fide operational requirements. For present purposes it will suffice to say that policies established unilaterally by the employer solely for financial reasons cannot be accepted as valid operational requirements if they have the effect of denying employees their rights under a collective agreement. . . .”

In Canada (Attorney General) v. Degaris, [1994] 1 F.C. 374, the Federal Court confirmed the decision by an adjudicator who had interpreted the notion of operational requirements. The adjudicator had ruled as follows: “. . . The employer may only invoke operational requirements to deny an employee a benefit to which he or she is entitled under the collective agreement if, in spite of itself, it finds itself short staffed to the point of being unable to provide the level of client service that is warranted. . . ” The Federal Court found as follows: “. . . Not only was the interpretation accorded to the meaning of ‘operational requirements’ by the adjudicator capable of support based on the words of the agreement but it was the correct and best interpretation, with many other adjudicators having said the same thing in previous cases.”

Here are some principles enunciated by adjudicators concerning “operational requirements” (The PSSRB/PSLRB references are provided in brackets at the end of each point):

  • What constitutes "operational requirements" turns on its particular facts in a specific situation. Morton (166-2-14208)
  • “Operational requirements” refers to the nature of the work required to be done and not the nature of the book-keeping and expense analysis performed by an employer. Sumanik (166-2-395)
  • The onus of demonstrating that operational requirements do not permit the granting of a benefit specified in a collective agreement rests with the employer. This is because the knowledge of operating requirements is information in the hands of the employer and therefore more readily accessible to it. More importantly, the employer has an obligation under provisions of the collective agreement, the release from which is contemplated only in special circumstances. Morton (166-2-14208)
  • The employer should consider the real alternatives available to it regarding the use of other staff to cover an employee’s requested absence rather than denying the employee’s application for leave. West (166-2-14208)
  • One adjudicator ruled that it may not be sufficient for a grievor to show that his fellow-workers were willing to work overtime on his behalf. The employer's refusal to consider this expedient does not mean that it denied the leave requested by the grievor unreasonably. Dufrense (166-2-14582)
  • The employer cannot rely upon staffing inadequacies as an excuse to raise artificial barriers to satisfying an otherwise legitimate requirement of the collective agreement. Just as the employer must comply with the requirement to pay overtime and call-in premiums for unexpected shortcoming attributed to staffing, so it must be held accountable to comply with like requirements under the collective agreement to provide employees with meal and/or relief breaks. Noakes (166-2-9688)
  • The employer cannot evade its obligations under the collective agreement simply on the basis that to fulfill these responsibilities would require incurring overtime costs. MacGregor (166-2-22489)

When a manager informs a member that he or she cannot be granted a benefit specified in the collective agreement because of operational requirements, the member should ask for an explanation of the above principles and urge the manager to ask for an explanation in light of the above principles. It does not become an operational requirement just because a manager says so.

Contributor: Harinder Mahil, Employment Relations Officer, Vancouver Office.

GTEC and PIPSC... It’s Win-Win

For the past 15 years, the Government Technology Exhibition and Conference (GTEC) has been the place for IT/IM decision-makers from the federal, provincial, municipal, and regional levels of government to share knowledge and experiences in improving service delivery through the management of information and technology.

For several years now, the Institute has benefited from its participation in GTEC Week activities. It has been a prime opportunity to achieve visibility for PIPSC and to meet and talk with some 700 members. It has even led to our signing up many Rands who didn’t realize they were not members!

GTEC is a learning opportunity designed to meet the current needs of senior executives and policy makers, program delivery managers, technical managers, and professionals from all levels of government.

This year's theme, Government 2.0: Exploring a new age of Innovation and Collaboration was an opportunity, across all levels of government, to explore the potential of Internet technologies to deliver simplified yet effective shared services to Canadians. The idea was to challenge traditional models to produce next-generation solutions for governments.

Keynote Speakers, Seminars & Workshops

An impressive list of keynote speakers and participants on various panels ensured there was a full menu of topics to interest all attendees. The ten open seminars covered a wide range of topics, some with intriguing titles like Self-Defence Hosts: From Science Fiction to Reality.

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Participants also got to choose from over twenty-five workshops intended to provide something for everyone. Subjects like Government Service Delivery: 57 Channels and Nothing On and Seeking Business Agility? Look to Virtualization Technologies piqued the interest of those in attendance.

Exhibits

Exhibitors from A to Z (Absolute Software to Zerospam) eagerly provided details of their systems or services as attendees circulated amongst the 135 display booths set up to provide them with details of state-of-the-art technology.

PIPSC Participation

Thanks to a quid pro quo arrangement (advertising in Communications Magazine, a link on the CS Group’s Web site and an email broadcast to our CS members), the Institute has been able to participate in GTEC in several different ways.

  • CS Group members, in conjunction with ServicePlus, set up a booth in the Exhibitor Hall. Information about PIPSC and handout material was shared with PIPSC members who stopped by. CS members received an update on bargaining and a bright yellow scarf designed to show solidarity in the workplace.
  • The Institute received exposure through the invitation extended to CS Group President Luc Carrière to speak on two occasions. Luc spoke about The Roles of Unions and The Future of IT and Our Community.
  • There was additional visibility for PIPSC through the presence of our branding on GTEC material.

GTEC and PIPSC... It’s definitely Win-Win!

CS Group booth. From left to right, Anne McBride, PIPSC Communications Section, Gordon Bulmer (CS) and Monique Laviolette (CS) both at PWGSC.

CS members with their scarves to wear or display in the workplace in support of their bargaining team. From left to right, France Robichaud and Christine LeDrew, Service Canada; Warren Fishwick, Canada Revenue Agency; and David Monsour, DND.


Publish Date: 14-DEC-2007 02:53 PM