In 1992 the Public Services Reform Act ordered the reorganization of bargaining units into the larger bargaining groups we know today. For UCTE public sector members this became the Program and Administrative Services group, the Technical Services group, Education and Library Science group, and the Operational Services group (also known as the SV bargaining unit).
On March 18, 1999 the Treasury Board defined the SV occupational group as:
The Operational Services group comprises positions that are primarily involved in the fabrication, maintenance, repair, operation and protection of machines, equipment, vehicles, government facilities and structures such as buildings, vessels, stationary and floating plants, stores, laboratories, and equipment; and the provision of food, personal or health support services.[i]
Specifically, the SV bargaining unit was an amalgamation of 15 separate bargaining units that not only included the ships crews and lightkeeper members but those who were hospital workers, firefighters, heating and power, general trades, and printing operations.
It only took a few rounds of bargaining to realize that this reorganization did not work well for our SC members. As the bargaining certificate holder, the Public Service Alliance of Canada (“PSAC”) filed an application on March 31, 2009 with the Public Service Labour Relations Board (“PSLRB”) as per section 43 of the Public Service Labour Relations Act to change the bargaining unit by removing the SCs from it and have this group become a stand-alone bargaining unit.
How they got to this point
In order to understand why an application for a separate SC table was made, one must look at their past experiences in collective bargaining.
PSAC was certified the bargaining agent for the SC group in 1968. For more than 30 years, PSAC negotiated separate collective agreements for the SC bargaining unit. With the resulting amalgamation in 1999, the PSAC had to negotiate for the newly created SV group. At the time of the application for a separate SC unit, there had been four rounds of collective bargaining.
During the first round in 2000, the PSAC and Treasury Board agreed to extend the old collective agreement for one year with a salary increase. This was done because a new universal classification standard (UCS) was allegedly to be introduced shortly. It was thought that this could have an important impact on the wage structure for all the federal public service and therefore both parties agreed to wait for the details of the new standard especially since it might impact pay rates.
The next round of bargaining took occurred from 2001-2003. At this point in time it was evident that the UCS was not going to be realized and, as a result, none of the SCs’ pay concerns would be tackled. A conciliation board recommended, however, that a pay study be conducted for every occupation within the SV bargaining unit, including the SCs. The lay-day issues at that time were also not addressed and there was no support from the non-SC members of the bargaining team to seriously pursue them.
The results of the pay study were available shortly after the 2003-2007 round of bargaining began. The response rate for the SC pay comparison was very low and the sample was not representative of the SC’s outside labour market. For the other units within the SV bargaining unit, the study recommended substantial pay increases.
At both the 2002 and 2005 UCTE Conventions, resolutions were passed to provide SC members with their own tables. It took until the 2006 PSAC Convention, and largely thanks to UCTE life member Brother Richard Côté, for this resolution to be adopted unanimously by the PSAC convention floor.
As a final offer to bargaining, Treasury Board agreed to increase the pay rates by 40% of what the study recommended. Salary increases for all groups ranged between 5.4% and 19.4% while for SC members, they were offered a salary increase of 2.6%.
Furthermore, this offer did not address any of the concerns raised around the lay-day system that were also presented by SC members. As a result, the final offer was accepted by the majority of the SV bargaining unit members. This meant that neither the SC members issues regarding pay rates nor the problems with the lay day system were addressed by the employer.
The next round of bargaining took place from 2007 to 2011. Both Treasury Board and the union agreed to establish a subcommittee of the bargaining team to address specific SC issues. The subcommittee was given very clear parameters: they could not change the collective agreement but could only submit changes to the full bargaining team. Unfortunately, nothing came of the subcommittee recommendations since the union bargaining team was forced to accept the employer’s final offer under threat of special legislation that would suspend collective bargaining. The final offer from Treasury Board listed national rates of pay for the majority of SV table members however zero changes were made to the SCs working conditions or rates of pay since they had been paid at national rates since 1980.
Another challenge for SC members is how to resolve issues when collective bargaining with the employer breaks down. SC members are deemed essential and therefore they cannot exercise their right to strike. They would prefer to choose arbitration if they are at impasse with the employer however the other groups within the SV bargaining unit prefer to choose conciliation with the right to strike.
The case was heard before PSLRB Board Member Renaud Paquet in Ottawa, ON from March 15 to 18, 2010.
Along with staff from PSAC, UCTE members Randy Sanderson (Pacific region), Donald Drapeau (Quebec region) and Dave Walsh (Atlantic region) were witnesses who testified at the proceedings. Union of National Defence Employee also had representation by Gary Fraser. Collectively these members each had 25+ years of service as a Ships’ Crew member and had each been at least the previous 2 if not all 4 rounds of bargaining since the creation of the SV bargaining unit.
The witnesses described the working conditions of being a ships’ crew member. They demonstrated the discrimination and unfairness that they experienced since the creation of the SV table. The Ships’ Officers (“SOs”) are not included in a different bargaining unit. In 2000, shortly after the creation of the SV table, the SCs’ wages were 86.9 percent of the SOs’ salary. In 2010, this gap increased to 77.1 percent – a 10% drop. In dollar amounts this went from a difference of $5627 in 2000 to $14,034 in 2010.[ii]
In his decision, the PSLRB Board member Renaud Paquet noted that the evidence presented by PSAC shows that the SCs have not been able to make substantial gains at the bargaining table since the creation of the SV bargaining unit. “Their priorities were overwhelmed by those of other employees, who form the majority of the bargaining unit.”[iii]
PSAC argued that there was no community of interest between the SCs and the other employees in the SV bargaining unit largely due to their working conditions. They noted that since amalgamation, the SC group have been unable to properly address their issues at the bargaining table. Since the SC group is a small group within the greater SV bargaining unit, their priorities are set aside to obtain other gains that benefit the majority.
PSAC also noted that by, despite nothing coming out of it, the agreement by Treasury Board to establish a SC subcommittee acknowledges the uniqueness of SC members.
Treasury Board, on the other hand, argued PSAC did not provide any evidence to demonstrate that since the creation of the SV bargaining unit in 1999 significant changes have occurred in the work organization, working condition or any other organizational matters that affect the SCs and justify the fragmenting the existing bargaining unit. (paragraph 44).
Treasury Board believed that the history of collective bargaining demonstrated satisfactory representation. They argued that “the SCs might have some specific interests but that is not unique. It is inherent to the collective bargaining process that bargaining agents must address and reconcile divergent interests.” (paragraph 46)
They also claimed that compensation restraint legislation such as the Expenditure Restraint Act had affected collective bargaining making it difficult to draw any definite conclusion about the efficiency of the bargaining structure.
Finally, Treasury Board dismissed the testimonies of union members saying, “the opinion evidence adduced by the witnesses at the hearing is not proof that the current bargaining unit structure does not permit satisfactory representation of the SCs.” (paragraph 51).
Mr. Paquet’s decision
Mr. Paquet began by citing that the burden of proof was upon the PSAC to prove that the SV bargaining unit structure does not permit satisfactory representation and appropriate collective bargaining for the SCs.
Mr. Paquet stated that “abundant evidence” was presented by PSAC to support the uniqueness of the SCs’ work conditions. (Paquet, Page 9, para 33 and 55) He summarized PSAC’s submission as follows:
The SCs have unique working conditions. They perform dangerous work on vessels, but unlike other groups, they do not benefit from some of the health and safety protections contained in the Canada Labour Code. They are the only part of the SV bargaining unit that are captive on a vessel for 28 days under the lay day system. While at sea, some provisions of their collective agreement cannot be used. They are underpaid when compared to the SOs and other trades within the SV bargaining unit.[iv]
He agreed that despite a large part of the SCs’ tasks being comparable to those of other SV group members, the conditions under which those tasks are performed are very different. He also acknowledged that PSAC presented that the SCs could be a viable unified bargaining unit.
Regardless of this, Mr. Paquet explained that his role as defined by the Public Service Labour Relations Act was to “examine whether the actual bargaining unit structure does not permit satisfactory representation, not whether the proposed one would permit it.” (paragraph 57). In other words, he needed to determine whether or not the SV bargaining unit structure permits adequate representation of the SCs – not whether the SV bargaining unit met the expectation of the SCs in its “relatively short history” (paragraph 64).
In terms of jurisprudence, Mr. Paquet noted that none of the former decisions agreed to fragment a bargaining unit or to create one that was not coextensive the occupation groups or subgroups. If he agreed, this would be the first.
He stated that he believed the PSAC and its witnesses that the SCs are not satisfied with what was achieved at the bargaining table however that four rounds of bargaining was a short period over which to conclude that a bargaining unit does not allow for satisfactory representation of a group of employees. He noted that this even more of the case when both the 2000 and the 2007-2011 rounds of bargaining cannot be considered as “normal” rounds.
Mr. Paquet noted that the bargaining unit structure is only one of the factors which leads to the satisfactory representation of employees and ultimately to the appropriate or satisfactory results in the collective bargaining process. He stated that the evidence shows that the SCs have the opportunity within the bargaining unit structure to prepare satisfactory bargaining proposals and to be able to present these before Treasury Board. Just because they might not be priorities for other groups within the bargaining unit does not mean that the bargaining structure prevents SCs from achieving their goals.
As a result of this and other reasons cited in the decision, Mr. Paquet denied the request. Despite this, he believed that the SCs did not receive their fair share of improvements in wages in the 10 years since the creation of the SV bargaining unit. “I believe that the parties, especially the respondent (Treasury Board), should seriously examine that situation and make genuine efforts to fix it within the confined of the actual bargaining unit structure.” (paragraph 74).
He also went on to make five recommendations on how this could be achieved within the existing SV bargaining unit structure:
- A SC subcommittee- the parties could again try to use the SC subcommittee to discuss their specific issues. He encouraged that the parties begin immediately to discuss the mandate and the modus operandi of the subcommittee.
- Co-development of workplace improvements – PSAC and Treasury could codevelop workplace improvements related to specific SC scheduling and work organization issues. This is pursuant to section 9 and 10 of the Act
- A joint pay study – PSAC and Treasury Board could, with or without the assistance of the PSLRB’s compensation and analysis research services, jointly undertake a pay study to get a more accurate picture of the SC pay situation.
- Jointly engage in two-tier bargaining – Pursuant to section 110 of the Act, PSAC, Treasury Board as well as the deputy heads of CCG and DND could jointly engage in a two-tier bargaining process for the SC group. This way they would be able to jointly bargaining any SC terms and conditions of employment, even while the SC remains part of the larger SV bargaining unit.
- Alternate dispute resolution – Both parties could agree to refer to an alternate dispute resolution process any SC terms and conditions of employment including wages. This could be done even if the SV bargaining unit continues to choose the conciliation route to resolve bargaining disputes.
Mr. Paquet stated that the existence of these options plus others are options that exist within the bargaining unit structure to address SC issues. As a result, he dismissed PSAC’s request to have a separate bargaining unit for the SC group.
To see the full decision
[i] Canada Gazette, Part I, Volume 133, No. 13, page 184
[ii] Public Service Alliance of Canada v. Treasury Board – PSLRB File No. 525-02-19 (20100426) heard by Renaud Paquet
[iii] Paquet decision, page 9
[iv] Paquet decision, page 10, para 39