Public Service Labour Relations Act
What stewards should know about the grievance process
With the Public Service Labour Relations Act coming into effect on April 1, 2005, a number of significant changes have been introduced to the grievance procedure. The purpose of this bulletin is to highlight these major changes in order to help you provide up to date information and relevant advice for the members you represent.
Of course, some of these changes are still in the process of being implemented.
Highlights of the major changes to the grievance procedure:
- Three types of grievances
PSLRA now refers to three types of grievances. In addition to individual grievances that existed under the old Act, reference is now made to group grievances as well as policy grievances. More information of the different types of grievances can be found further down in the text.
- Grievance time lines
For individual grievances, time lines as outlined in the various collective agreements that were in effect on April 1, 2005, remain unchanged, since such a mutually agreed process has precedence over the PSLRB Regulations.
In the Act, time is now counted in calendar days rather than working days. If the deadline falls on a weekend or statutory holiday, it is extended to the following working day.
Group and policy grievances have to be submitted no later than 35 days after the earlier of the day on which the aggrieved employee(s) (or bargaining agent in the case of a policy grievance) received notification and the day on which the grievor(s) had knowledge of the incident that gave rise to the grievance (reg. 78 or 85 depending on the type of grievance).
A response must be provided 20 days after the day on which the grievance was received (reg.72, 80, 87 depending on the type of grievance); with the exception of classification grievances where the deadline to respond is set at 80 days.
Transmittal has to take place within 15 calendar days from the date a decision is rendered.
If no decision, grievor has 40 days after the expiry of the period within which the decision was required, to transmit.
Grievor has 40 days after receiving a final decision to refer to adjudication.
- Deployments will be grievable/adjudicable (art. 209)
A deployment under the Public Service Employment Act could be grieved. This will take effect when the PSEA comes into force in December 2006. However, it is only in cases where the deployed employee claims that she / he did not consent to the deployment that such grievances can be heard by an adjudicator.
Limitation to that right: In cases where the employee was forced to deploy as a condition of employment or as the outcome of an harassment complaint, the employee will not be able to proceed to adjudication.
- Adjudicators will be able to hear grievances dealing with alleged violation of human rights
The PSLRA addresses and clarifies an issue that until its coming into force had been a source of confusion pitting the former PSSRB against the Canadian Human Rights Commission on issues of jurisdiction.
The PSLRB is now clearly habilitated to hear grievances that raise issues involving the interpretation and application of the Canadian human Rights Act (art. 226(1)(h)). An adjudicator can order compensation in accordance with the CHRA (including ordering the person found to have engaged in a discriminatory practice to pay up to a maximum of $20,000 in compensation to the complainant for pain and suffering (CHRA art. 53(2)); as well as a maximum of $20,000 if proven that the person engaged in the discriminatory practice did so “wilfully or recklessly”(CHRA, art. 53(3)).
- Adjudicators will be able to order payment of interest in disciplinary cases (art. 226(1)(i))
- The employer will not be able to evoke untimeliness of a grievance unless this objection was raised at the first opportunity (reg. 95)
Additional Information on the three types of grievances:
- Individual Grievances (art. 208):
Similarly to what existed before, an employee can present an individual grievance when aggrieved by:
The interpretation or application in respect of the employee of:
- a provision of a statute or regulation or of a direction or other instruments made or issued by the employer that deals with terms and conditions of employment; or
- as a result of any occurrence or matter affecting terms and conditions of employment;
- a provision of a collective agreement (or arbitral award).
- Group Grievances (art. 215):
This is a new concept in federal public service labour relations however, PIPSC members working for an employer governed by the Canada Labour Code already have access to a similar type of recourse. A bargaining agent can now present a grievance on behalf of a group of employees, under the conditions listed below:
- A group grievance has to deal with the interpretation or application of a collective agreement (or judicial award).
- Written consent is required from each employee, and consent form (form # 19) has to accompany the grievance (reg. 77).
- The group grievance must relate to employees in the same Department or Agency (“employees in a single portion of the federal public administration”).
If employees from different Departments feel aggrieved by the same measure, they have to regroup by Department to submit their group grievance.
- The employee can withdraw her / his grievance at any time of the procedure, before a final decision is rendered (art. 218).
- Until we negotiate language to be incorporated in the collective agreements, PSLRB Regulations govern the process.
- The group grievance procedure has a maximum of three levels (reg. 74).
- The employer needs to prepare special forms (reg. 76).
- The employer is to notify the union as to whom has been designated to receive group grievances (reg. 75).
- POLICY GRIEVANCES (art. 220):
This is also a new concept in federal public service labour relations, however, PIPSC members working for an employer governed by the Canada Labour Code already have access to a similar type of recourse.
Both the employer and the bargaining agent may present a policy grievance to the other.
Such grievances are limited to “the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally”.
- Redress is limited to (art. 232):
- declaring the correct interpretation, application or administration of the collective agreement;
- declaring that the collective agreement has been contravened;
- requiring the employer or the bargaining agent to interpret, apply or administer the collective agreement in a specified manner.
- Grievance procedure is limited to one level only (reg. 83).
Employers (Treasury Board and Agencies) and bargaining agents are to notify the other party of the name and title of any person to whom a policy grievance may be presented (reg. 84).
- Policy grievances can be filed only on matters arising after April 1st, 2005 (part 5 -art. 65).
- Redress is limited to (art. 232):
- Limitations to the exercise of the right to grieve:
The PSLRA imposes certain restrictions to the scope of the right to grieve.
For an individual grievance:
- As it was always the case, an employee who wishes to file a grievance related to the interpretation or application of a provision of the collective agreement must have the approval of as well as be represented by the bargaining agent for the bargaining unit to which the collective agreement applies (art. 208(4)).
For both individual and group grievances:
- a grievance may not be filed if the employee(s) chooses to make a complaint under an applicable internal policy of the employer (art. 208 (5) & art. 215(6)).
However, this limitation only applies when the internal policy expressly states that the employee gives up his or her right to grieve when she or he pursues relief under the policy.
In addition, three limitations apply to all three types of grievances:
- may not present a grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament (other than CHRA).
- may not present a grievance in respect of the right to equal pay for work of equal value.
- may not present a grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
- Other considerations to keep in mind:
- Extension of time: Time lines prescribed in the Act may be extended by agreement between the parties or; in the interest of fairness, on the application of a party, by the chairperson of the PSLRB (reg. 61).
- Suspension of time: It is now mandatory for “deputy heads in the core public administration” to establish an informal conflict management system (ICMS) (art. 207). If, during the grievance process, the parties avail themselves of an ICMS, time prescribed for the grievance procedure is suspended “until either party gives to the other notice in writing to the contrary”(reg. 62).
Please note that ICMS applies only to “the core public administration” (as defined in Schedule I to the Financial Administration Act.
- Reference to adjudication of grievances with respect to the demotion or termination for unsatisfactory performance (not related to discipline or misconduct) (art. 209): an employee whose employment is terminated for unsatisfactory performance (as per art. 12 (1) (d) of FAA) can refer her / his grievance to adjudication only if she / he was employed in the “core public administration”, or;
If she / he was employed by an agency or separate employer which had filed an Order in Council to grant access to adjudication to their demoted or terminated employees. To date, the only agency to have made such a request is CFIA.
- Transition provisions:
What happens to grievances that were filed before April 1st, 2005?
- According to Part 5 of the PSLRA, grievances filed before April 1st, 2005 fall under the provisions of the old PSSRA. (Part 5-art. 61(1)).
- The PSLRB will continue to process all files that remained open at the PSSRB as of April 1, 2005.
- Accordingly, grievances that were presented under the PSSRA but not finally dealt with before the implementation of the PSLRA continue to be dealt with in accordance with the provisions of the PSSRA and PSSRB Regulations. “Adjudicators under the former Act may continue to hear, consider or decide any grievance referred to him or her before the day on which” the new Act came into effect (61(2)).
In closing we want to remind you that all of the changes affecting labour relations in the federal public sector will have to be closely monitored by PIPSC. We rely on you, the stewards, to bring forth any question, comment or observation you may have. Your input will help ensure that the transition to a new labour relations regime will be as seamless as possible. Our members will be able to take advantage of their right to file a grievance and make themselves heard.