Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada)
Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act
- Date: 20170710
- File: 561-02-716 and 569-02-166
- Citation: 2017 FPSLREB 6
Before a panel of the Federal Public Sector Labour Relations and Employment Board
UNION OF CANADIAN CORRECTIONAL OFFICERS - SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA - CSN
Complainant and Bargaining Agent
(Correctional Service of Canada)
Respondent and Employer
Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada)
In the matter of a complaint made under section 190 of the Public Service Labour Relations Act and in the matter of a policy grievance referred to adjudication
- Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
- For the Complainant and Bargaining Agent:
- Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
- For the Respondent and Employer:
- Caroline Engmann, counsel
May 29 to June 1, 2017.
REASONS FOR DECISION
I. Complaint and policy grievance before the Board
1 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board that replaced the Public Service Labour Relations Board. In conformity with the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40), any proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.
2 On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board to become the Federal Public Sector Labour Relations and Employment Board (“the Board”). The short title of the PSLRA was changed to Federal Public Sector Labour Relations Act (FPSLRA), which is the form I will use throughout this decision. The relevant provisions of the Act remain unchanged from the PSLRA.
3 The Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada- CSN (UCCO-SACC-CSN), the bargaining agent for correctional officers (CXs) working for the Correctional Service of Canada (CSC), filed an unfair labour practice complaint on October 29, 2014 (PSLRB File No. 561-02-716). The bargaining agent also referred a policy grievance to adjudication (PSLREB File No. 569-02-166) on January 20, 2015. The subject matters of both the complaint and the policy grievance are the same, and the parties agreed to have both matters heard at the same time. This decision deals with both the complaint and the policy grievance.
4 The bargaining agent submits that between 2006 and 2014, by virtue of both its collective agreement with the Treasury Board (the “respondent”) for the Correctional Services Group (expiry date: May 31, 2014; “the collective agreement”) and an implementation protocol called the “Global Agreement”, which the bargaining agent and the CSC signed, CXs injured at work were granted paid injury-on-duty leave (“IODL”) as long as the relevant workers’ compensation authority considered them unable to work but able to eventually return to work.
5 The bargaining agent submits that a change of policy occurred in October 2014. According to the bargaining agent, that change was a breach of the collective agreement, a discriminatory action, and a violation of s. 107 of the FPSLRA, the statutory freeze provision, which provides that terms and conditions of employment are to remain the same after notice to bargain has been served by one party. The respondent served notice on the bargaining agent on February 17, 2014.
6 The respondent’s position is that there has been no change in its policy. The employer (as defined in the collective agreement and in this decision, it includes both Treasury Board and CSC) has always been responsible for determining a reasonable period for IODL, and if certain clarifications were made in October 2014, they were simply meant to confirm the ongoing practice, not to modify it.
7 For the reasons that follow, I find that I do not have jurisdiction to decide the policy grievance. The parties clearly excluded the Global Agreement from the collective agreement and specified that no grievance can arise from its provisions. However, I do find that the employer breached s. 107 of the FPSLRA. The claim of alleged discrimination, on the other hand, is not substantiated by the evidence as presented.
II. Summary of the evidence
A. For the bargaining agent
8 The bargaining agent called four witnesses: Kevin Grabowski, Tonya Norris, Eric Tremblay, and Michel Bouchard. Their testimonies are summarized in the following paragraphs.
9 Mr. Grabowski was involved with the bargaining agent from its inception, when it was created to represent CXs. For 12 years, he was a regional president for the Prairies. In 2013, he was elected national president for a three-year term. Mr. Grabowski retired in May 2017.
10 As regional president and then national president, Mr. Grabowski participated in contract talks and bargaining. He had of course a diversity of responsibilities, but for the purposes of this hearing, it is important to emphasize that he was always involved in the return-to-work (RTW) committees that the CSC and the bargaining agent set up jointly to facilitate the return to work of CXs injured at work or otherwise incapacitated for a while.
11 RTW committees are jointly set up at three levels — local, regional, and national. As the regional president, Mr. Grabowski sat on the regional RTW committee; as the national president, he sat on the national RTW committee. He explained that the RTW committees’ roles differ from level to level. At the local level, the committee will keep itself informed monthly of the status of an employee who is away from work. At the regional level, cases lasting six months and more will be brought to the committee’s attention. At the national level, generally, cases lasting more than a year are brought up. For all committees, the prime concern is to have employees return to work as soon as possible, while keeping in mind their medical or psychological condition and the functional limitations that may ensue.
12 RTW committees were set up following the IODL agreement that CSC and the bargaining agent concluded in 2006 that is found in two documents: the Global Agreement first concluded on June 26, 2006, and a subsequent bulletin issued by the CSC in November 2006 (“bulletin 2006-05”) that explains in more detail the terms of the Global Agreement pertaining to IODL.
13 Mr. Grabowski explained that before the Global Agreement was adopted, IODL was left to the discretion of the wardens in the institutions where CXs work. In cross-examination, he was asked to recall whether the language of the collective agreement before 2006 did not already state “shall” as opposed to “may” as to the duty of the employer to grant IODL. I think the issue is resolved by the whole of the evidence.
14 The collective agreement provides as follows at clause 30.16:
30.16 An employee shall be granted injury-on-duty leave with pay for such reasonable period as may be determined by the Employer when a claim has been made pursuant to the Government Employees’ Compensation Act, and a Workers’ Compensation authority has notified the Employer that it has certified that the employee is unable to work because of:
(a) personal injury accidentally received in the performance of his or her duties and not caused by the employee’s willful misconduct,
(b) an industrial illness or a disease arising out of and in the course of the employee’s employment,
if the employee agrees to remit to the Receiver General for Canada any amount received by him or her in compensation for loss of pay resulting from or in respect of such injury, illness or disease providing, however, that such amount does not stem from a personal disability policy for which the employee or the employee’s agent has paid the premium.
15 It is clear from the wording of that provision that the employer must provide IODL. That fact was never in dispute, and both parties agreed that this obligation existed before 2006.
16 The issue is the “… reasonable period as may be determined by the Employer …”, and this is the “may” that Mr. Grabowski referred to as the arbitrariness of wardens, who could extend or not extend IODL beyond 130 working days.
17 The period of 130 working days does not appear in the collective agreement. Rather, it comes from a Treasury Board policy that according to the parties was adopted sometime in the 1990s to help departments interpret what should be a reasonable period.
18 The respondent introduced at the hearing a document dated “1992-10-01” on IODL. Certain things have changed since then, notably the role of Labour Canada, but the document remains current as to its principles. The main provisions for the purpose of this grievance and complaint read as follows:
In virtually all cases where Treasury Board is the employer, employees disabled due to an occupational illness are entitled to injury-on-duty leave with full normal pay for such reasonable period as is determined by the employer, where the disability is confirmed by a Provincial Workmen’s Compensation Board pursuant to the Government Employees Compensation Act.
Should the total period of injury-on-duty leave granted to an employee with respect to an injury or illness reach 130 working days, a special departmental review of the case should be carried out and a decision made as to whether or not the continued provision of such leave beyond this period is warranted.
19 The main change brought about by the Global Agreement and the subsequent bulletin 2006-05 was the elimination of 130 days as a signpost in the provision of IODL. Under section I-D of the Global Agreement, the CSC and the bargaining agent agreed in 2006 to the following interpretation of clause 30.16 of the collective agreement in force at that time:
For the purpose of these provisions [reference: clause 30.16 of the collective agreement], CSC will apply the following:
- For all cases of employees on injury-on-duty, the definition of a “reasonable period” is not limited provided the Workers’ Compensation authority continues to consider the employee unable to work.
- Notwithstanding the above, Treasury Board policy regarding injury-on-duty leave applies.
- For the purpose of managing the return to work of employees who are injured on duty, minimally:
- All institutions will have a joint union-management committee in place to review and advise on the return to work of all injured employees;
- Each region will have a joint union-management committee in place to oversee and advise the return to work of all injured employees who have been off duty for more than six (6) months;
- A national committee comprised of union and management representatives will review all cases of injured workers who have not returned to work after twelve (12) months.
20 I note that the wording of section I-D of the Global Agreement remained unchanged in the 2013 version that was in effect when the grievance and the complaint were filed.
21 Mr. Grabowski understood the “[n]otwithstanding the above” application of the Treasury Board policy referred to in the Global Agreement to mean that the other elements of the policy were to be applied, without consideration for the 130 days, as the duration would be determined by the employee’s fitness to work as confirmed by the workers’ compensation authority (or “WCB”, the acronym used by most witnesses to refer to all provincial entities). As will be seen from the testimonies of the employer’s witnesses later in this decision, the CSC understood that reference to mean, at least by 2013, that the 130-day review always remained part of the agreement, which statement was contradicted by bulletin 2006-05. I wish to emphasize that the bulletin was issued by CSC.
22 Bulletin 2006-05 states clearly that the period of 130 days is not a consideration when determining IODL. After reproducing points 1 and 2 of section I-D of the Global Agreement, it continues with the following:
The current Treasury Board Injury-on-Duty Leave (IODL) policy indicates that in virtually all cases where an employee is injured as a result of an occupational accident or condition confirmed by a provincial workers’ compensation board, the employee is entitled to injury-on-duty leave with full normal pay for such reasonable period as is determined by the employer, in this case the CSC. Injury-on-duty leave can continue to be authorized for injuries or conditions of a temporary nature, unless the possibility of returning to work is highly unlikely. Historically, the guideline used with this type of leave was that it not be granted beyond 130 days, except in exceptional cases where a special departmental review was to be conducted to determine the appropriateness of continuing such a payment.
As of June 26th 2006, the 130 day guideline for termination of Injury-on-Duty Leave no longer applies in injury-on-duty situations with respect to Correctional Officers, regardless of the date of accident or illness. The transfer to direct payment (workers’ compensation board benefits) from Injury-on-Duty Leave pay should be considered and generally implemented when the following criteria are met:
- Medical practitioners’ expectation of employee’s return to work and workers’ compensation board’s (WCB) advice indicates that the employee’s return to work is highly unlikely; and
- The employee is no longer eligible for WCB approved vocational rehabilitation; or
- There is no recommended treatment program prescribed by the medical practitioners.
23 Mr. Grabowski added that it was understood that if an employee did not cooperate with RTW efforts and did not follow the medical advice provided by his or her medical practitioner, then he or she would be placed on the direct payment of WCB benefits, with the bargaining agent’s approval.
24 Mr. Grabowski explained how important was the change that was brought about in 2006 by section I-D of the Global Agreement and the subsequent bulletin 2006-05. It meant that as long as the WCB considered an employee unable to work, and as long as he or she collaborated with the rehabilitation efforts, he or she would have financial peace of mind. The full salary would be paid as well as social benefits and the employer’s share of the pension fund. An injury on duty may lead to an absence of a few days, a few weeks, or a few months. Sometimes, it may exceed a year. The most significant component is ensuring a successful return to work. When an injured employee feels pressured to go back to work for financial reasons, lasting damage to his or her health may result.
25 Moving from a full salary to direct WCB benefits implies a significant deterioration of the employee’s financial situation. WCB benefits represent a percentage of a maximum insurable amount. Both the percentage and the maximum insurable amount vary from province to province. The bargaining agent introduced as evidence a table showing the maximum insurable earnings for the purpose of WCB benefits for each province and territory. For 2015, the maximum insurable earnings ranged from a low of $56 100 in Nova Scotia (Prince Edward Island’s are even lower, but no CXs work there) to a high of $95 300 in Alberta. Manitoba is the only province without a maximum. The evidence from the bargaining agent’s witnesses was that the salary of a CX, taking into account overtime and shift premiums, averages $100 000.
26 The bargaining agent also introduced into evidence the CX-1 and CX-2 job descriptions. Counsel for the employer objected, but I accepted the job descriptions as admissible to show that the employer is well aware of the very real dangers CXs are exposed to because of their positions. Suffice it to say that working in a harsh environment, where serious injury may occur at any time because of inmate violence, and where very tragic events may occur, makes workplace injury a very real risk, with both physical and psychological components. Moreover, the work of CXs can be quite demanding physically.
27 In October 2014, less than a year after signing a new Global Agreement in 2013 that maintained IODL, the CSC abruptly changed its policy and issued a new bulletin (“bulletin 2014-04”) that reinstated the 130-day limit to IODL, save in exceptional circumstances.
28 The wording of bulletin 2014-04 is very different. In addition to reinstating the 130-day review, it affirms the decision-making power of the manager and the secondary role played by RTW committees. After restating points 1 and 2 from the Global Agreement (no limit to IODL if a WCB continues to certify that the employee is unable to work, Treasury Board’s policy applying notwithstanding), the bulletin completely reverses the interpretation in bulletin 2006-05. A few excerpts follow:
In accordance with the TBS policy, departments are expected to periodically review such cases to confirm ongoing disability and related absences from work to support the provision of IODL, as this leave should not be granted to any employee who is found fit to work, including modified duties when available. In all cases, once the period of IODL is anticipated to reach 130 working days, a departmental review must be conducted to determine whether to continue such leave. Where a decision is made to transfer the employee from paid IODL to leave without pay, income replacement benefits may be provided directly to the injured employee by the applicable Workers’ Compensation Board (WCB) in cases where the WCB determines further entitlement is warranted.
The primary accountability for the ongoing review of IODL rests with the employee’s substantive manager supported by Human Resources with information from the relevant WCB and the Joint Return to Work (RTW) Committees (local, regional and national).
Normally if a Correctional Officer does not have a confirmed return to work date by 130 days of IODL (as of the beginning of the employee’s absence) or no return to work is imminent, the delegated authority should consider making arrangements for the employee to receive wage loss benefits directly from the relevant WCB (in accordance with the provisions of the applicable Workers’ Compensation Act).
However, for a Correctional officer who remains temporarily unfit for work at 130 working days of paid leave but is confirmed to return to duty shortly after the 130 days deadline, the level two delegated authority has the discretion to consider extending injury on duty leave until the date confirmed by the WCB that the employee will return to work.
29 Mr. Grabowski testified to the immediate disarray that the change of policy caused. As he said, “The phone lines lit up.”
30 In cross-examination, counsel for the respondent sought to establish that as national president, Mr. Grabowski had been consulted on the policy change before it was put into effect. I will come back to these exchanges and consultations when I summarize Mr. Bouchard’s evidence. From the email evidence and the meeting notes of Alain Tousignant, the CSC’s regional deputy commissioner for Quebec, Mr. Grabowski and Mr. Bouchard received the same information concerning the policy change.
31 The bargaining agent called two witnesses to testify to their IODL experiences. Mr. Tremblay is a CX-1. He fell and hurt his knee when responding to an alert several years ago. Since then, he has had a series of treatments that have kept him away from work for long periods. He accumulated 130 days of leave for his injury and was told he would no longer receive IODL. He now receives benefits from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST; the Quebec WCB). The impact on him of receiving only benefits, in addition to decreased income, is that he is not accumulating regular leave, and the employer has not been contributing to his pension fund.
32 Originally, he hurt his right knee, but a second injury made necessary an operation to his left knee. The discontinuance of IODL has meant added stress, in addition to the rehabilitation stress that followed his knee operation.
33 Ms. Norris is also a CX-1. She started with CSC in 2011. Her substantive position is at Millhaven Institution, a maximum-security institution for male inmates. In October 2015, she was diagnosed with post-traumatic stress disorder (PTSD). It took some time for the Workplace Safety and Insurance Board (WSIB; the Ontario WCB) to recognize her injury. It then took a lot of time for the payment to arrive, which she attributed to the problems involving the implementation of the Phoenix pay system within the federal government (the respondent did not contradict this evidence). She finally received an IODL payment in May 2017. However, since June 30, 2016, she has received only WSIB benefits. She remains unfit for work and is following all recommended treatments.
34 For the purposes of this policy grievance, I provide only a very short summary of Ms. Norris’s plight. She stopped working in October 2015. The WSIB finally recognized her injury in April 2016. She used sick leave from October 2015 to January 2016, then applied for employment insurance, which she received for a few months. The insurance company Sun Life Financial did pay her benefits for a while, then it asked for a reimbursement, as she was entitled to IODL. Sun Life did not understand that Phoenix was preventing her from receiving the payment. By December 2016, she was being threatened with collection. In June 2016, while still not having received IODL, she was placed on direct benefits from the WSIB. All this turmoil is not helpful to someone recovering from PTSD, anxiety, and depression.
35 Mr. Bouchard has been a union advisor with the UCCO-SACC-CSN since 2001. He was a regional advisor for Ontario from 2001 to 2011, and then the coordinator of the UCCO-SACC-CSN team from 2011 to 2017. He is now back in his role as regional advisor for Ontario and is presently the spokesperson for the bargaining agent at the bargaining table. He has represented members before various tribunals, notably, the appeal divisions of the WCBs in both Quebec and Ontario, the Canadian Human Rights Tribunal, and this Board and its predecessors. He is consulted on grievances, in particular on injury-on-duty matters.
36 Mr. Bouchard was also the bargaining agent spokesperson for the last round of bargaining (2010-2013), starting in March 2011. He was also involved in the bargaining rounds that followed the certification of the bargaining agent in 2001.
37 He described how from 2002 to 2006, parallel negotiations took place with the Treasury Board as the employer and with the CSC as the entity responsible for implementing the collective agreement. CXs are employed only by the CSC, contrary to most occupational groups in the federal public service, which are found in a variety of departments and agencies. Because of the CXs’ difficult working conditions, the bargaining agent sought agreements with the CSC on the interpretation of the collective agreement, one of several generic collective agreements that the Treasury Board negotiates with different bargaining agents for very diverse groups.
38 From 2002 to 2006, during the first bargaining round, two subcommittees reported to the bargaining table with representatives from the bargaining agent and the CSC. One subcommittee dealt with scheduling, the other with IODL. The result of the work of this second subcommittee was section I-D in the Global Agreement. According to Mr. Bouchard, bulletin 2006-05 was a faithful interpretation of the parties’ intent as agreed to in the Global Agreement. No changes were made between 2006 and October 2014.
39 The second round of bargaining, from July 2010 to April 2013, again included a parallel negotiation of the Global Agreement. The bargaining agent asked for clause 30.16 of the collective agreement to be modified to allow paying IODL from the start, even before the WCB made its decision. Mr. Bouchard stated that the CSC was notorious for being late to report workplace injuries, which delayed processing claims at the WCB. The respondent’s counsel objected to this evidence. In fact, it was corroborated by an internal audit.
40 I do not make any finding on the matter, but I simply note that the bargaining agent sought to ensure a bridging mechanism for injured employees. The change did not occur either in the collective agreement or in the Global Agreement. Both clause 30.16 and section I-D remained identical to the 2006 version. The collective agreement that expired on May 31, 2014, was signed on November 5, 2013; the Global Agreement was signed on November 7, 2013.
41 When negotiating the Global Agreement, the employer signalled that it was considering changing the IODL policy. In a document entitled “Employer Response”, there is a note from the employer indicating the following for section I-D of the Global Agreement: “Status quo (notice of pending HR Bulletin Review)”. In the end, again, no change was made to this section of the Global Agreement, so the status quo prevailed.
42 In cross-examination, Mr. Bouchard was referred to notes from Mr. Tousignant and to two emails that show that the CSC had signalled to the bargaining agent that it was considering a change to bulletin 2006-05.
43 Mr. Tousignant’s notes are dated February 11, October 4, and October 22, 2013, which are all before both the collective agreement and the Global Agreement were signed. For February 11, the notes mention “RTW & IODL – streamline process”. It is unclear who the attendees were. For October 4, they clearly state that the meeting is with Mr. Grabowski and Mr. Bouchard. IODL is mentioned once, with “Draft Bulletin (Dept Review)”. For October 22, the notes mention a meeting in Kingston, again with Mr. Grabowski and Mr. Bouchard. For IODL, they state “RTW provide Bulletin draft”. It also appears as a follow-up item. Further evidence established that “Nat”, the person responsible for providing the draft, was in fact Nathalie Dufresne-Meek, who testified for the respondent at the hearing.
44 A draft bulletin was sent on October 28, 2013, by Mr. Tousignant’s assistant. It is dated October 2013, but it is not numbered. The suggested change is to have cases reconsidered after the initial 130 working days; it is formulated in the following terms:
In accordance with the Treasury Board guideline, in all cases, once the period of IODL granted reaches 130 working days, a special departmental review must be conducted to determine the appropriateness of continuing such leave.
For a Correctional Officer, unable to work, the transfer to direct payment (workers’ compensation board benefits) from Injury-on-duty Leave pay should be considered and generally implemented when one of the following criteria are met:
- Workers’ compensation board’s (WCB) expectation of employee’s return to work at CSC is highly unlikely; or
- WCB’s prognosis for the employee’s return to work in the short term (within 6 months) is uncertain or unlikely; or
- The absence, in the opinion of the employer, is significant and extended.
In general, an absence can be considered significant and extended, in the opinion of the employer, after an elapsed period beyond the initial 130 working days, although each case must be evaluated on the basis of its particular circumstances.
45 Ms. Dufresne-Meek sent a second draft bulletin to Mr. Grabowski and Mr. Bouchard on February 12, 2014, after the Global Agreement had been signed and just before the employer served notice to bargain on February 17, 2014. This second draft, also dated October 2013, differs significantly from the first draft. Although it also reinstates the 130 working days as the time in which to consider direct WCB benefits, it includes the possibility of prolonging IODL up to a year after the beginning of the absence when there is an anticipated RTW date. Instead of an “imminent” RTW, as found in bulletin 2014-04, it speaks of “… return to duty in the foreseeable future (no later than one year from the beginning of their absence)”.
46 Mr. Bouchard did not deny receiving the proposals from the CSC. However, he stated clearly that the bargaining agent had expressed its strong disagreement with the idea of placing the employee on direct WCB benefits as opposed to the CSC paying IODL as long as the WCB certified that the employee was not fit to work. Mr. Bouchard remembered Mr. Grabowski arguing for 24 months as a foreseeable future, as opposed to 12 months, the reasoning being that it sometimes takes longer than a year to receive a proper diagnosis and treatment plan from specialists. A note to file dated February 19, 2014, from Michelle Forgues, a CSC workplace wellness specialist, confirms this, as well as the bargaining agent’s request to address the IODL dispute via a mediated process, as per the Global Agreement. No such mediation occurred, according to Mr. Bouchard’s uncontradicted evidence.
47 In the end, the bargaining agent’s main fear, and the reason for its opposition to any change to the policy, was that employees would simply be cut from IODL after 130 working days and would be placed on direct WCB benefits, with no further review. In fact, according to Mr. Bouchard, this is exactly what has happened in the CSC’s Ontario region since the publication of bulletin 2014-04. He is aware of only one case of IODL being extended beyond 130 working days, and it was for very exceptional circumstances.
B. For the respondent
48 Mr. Tousignant has been the CSC’s regional deputy commissioner for Quebec since December 2013. Before that, he was its director general of labour relations, compensation, and wellness. He was responsible for several portfolios, including RTW.
49 Mr. Tousignant testified that the CSC worked closely with employees and the bargaining agents to ensure a prompt return to work while respecting the functional limitations of injured employees. His understanding of the Treasury Board’s IODL policy was that there was a clear entitlement to IODL once the WCB had confirmed the workplace injury; however, it was not to be for an undetermined period. According to him, the criteria in the 2006-05 bulletin were so strict that in effect, injured employees remained on IODL for undetermined periods.
50 His recollection of the exchanges with the bargaining agent concerning IODL before the change was made in October 2014 was rather slim. He had his notes, already mentioned, and evidence that drafts had been provided. He did not recall the contents of the bargaining agent’s objections. He left his director general position before the changes to the bulletin were finalized.
51 Mr. Tousignant did recall why the CSC proposed revisions to the bulletin. The criteria in bulletin 2006-05 were, in Mr. Tousignant’s words, “too restrictive”. According to him, it was virtually impossible to put an end to IODL with such criteria. The CSC wanted more flexibility. It also wanted to reassert its ability to determine the duration of a reasonable period of IODL, in keeping with the collective agreement.
52 In cross-examination, Mr. Tousignant stated that as the CSC’s Quebec regional deputy commissioner, he has “level 2” authority to grant extended IODL. He has granted it two or maybe three times. If a manager decides to end IODL, the case will not be referred to him. He sees only those cases in which a manager believes there is reason to extend IODL.
53 John Kearney was for ten years, until December 2016, director of corporate labour relations, responsible for the accountability of collective bargaining as well as the application and management of the collective agreement. He worked with the CSC team negotiating the Global Agreement as a policy expert and as a drafter. He developed proposals, suggested language, and discussed strategy for the CSC to reach a desired outcome. He never participated directly in the bargaining sessions.
54 He stated that in the 2010 round of negotiations, the bargaining agent had asked for employees’ salaries to be paid while they awaited a WCB decision. For its part, the CSC wanted to go back to the Treasury Board’s guideline. He was the author of the note in the CSC’s response (“Status quo (pending HR Bulletin Review”). I asked him if he saw a contradiction between the two, since a review of the bulletin might change the status quo.
55 Mr. Kearney replied that he did not see a contradiction. The change brought about by bulletin 2014-04 did not limit IODL, which, according to him, continued to be subject to reasonableness. There was no automatic conversion to direct WCB benefits, and the case review would continue to be guided by medical practitioners. It was important to reaffirm that the employee’s manager was the decision point for conversion, but the manager would certainly listen to information provided by “stakeholder committees” (presumably the local, regional, and national RTW committees) as well as the CSC’s wellness directorate.
56 Ms. Dufresne-Meek is currently the acting director general of labour relations and workplace management and has been since December 2016. She started at the CSC in July 2006 and was successively a national advisor on RTW, a manager of workplace wellness, and finally, the director of that group. A large part of her duties related to RTW.
57 She worked closely with the joint RTW committees, of which the CSC has four types. One national committee includes all the bargaining agents at the CSC. The other three committees concern only this bargaining agent (UCCO-SACC-CSN). The local RTW committee (at each institution) meets monthly, the regional RTW committee meets quarterly, and the national RTW committee meets five or six times per year. The terms of reference of the committees, as set up jointly by the CSC and UCCO-SACC-CSN, clearly specify their mandates. Local committees examine injury-on-duty cases lasting more than 30 days; regional committees examine cases lasting over 6 months. The national committee examines cases lasting over a year.
58 As concerns the change of policy from bulletin 2006-05 to bulletin 2014-04, Ms. Dufresne-Meek confirmed that the criteria in bulletin 2006-05 no longer apply. In fact, there are now no criteria as such. Rather, managers exercise their discretion in line with the information received from the WCB, the wellness group, and the RTW committees. It has happened that the wellness group has recommended to a manager to extend IODL. If the manager agreed with the recommendation, it had to be referred to the level 2 delegated authority (such as Mr. Tousignant). Ms. Dufresne-Meek stated that under bulletin 2006-05, unless the criteria were met, employees were kept on IODL and generally were not transferred to WCB benefits. She did not know why changes had been made to the bulletin. She stated that she was not part of “more senior discussions”.
59 Aly Alexandre has been a national RTW advisor for the CSC for a year. He had worked previously for the CSC in its workplace wellness division. He spoke to the fact that spreadsheets were used to track IODL and RTW. His perception of the application of the 2014-04 bulletin was that cases were reviewed on merit at or near the 130 day-mark. According to him, the criterion that was applied to determine whether to extend IODL was whether a return to work was foreseeable, according to the information provided by the WCB. If a new medical assessment was expected, than a grace period could be granted. Obviously, having to wait a year for a RTW was not “the foreseeable future”, and the employee would be placed on direct WCB benefits.
60 The respondent’s last witness was Kelly Wall, the regional RTW advisor for Ontario. She is considered a subject matter expert and provides advice to managers on the RTW process.
61 Ms. Wall explained a document entitled, “Rationale – IODL or Direct Payment” and explained that it was used to justify the decision either to extend IODL after 130 days or to place the employee on direct WCB benefits. Three examples were provided of how bulletin 2014-04 is applied to cases that have reached the 130-day mark.
62 The first case concerned an injured employee who refused to cooperate with his treatment. The recommendation was to place him on WCB direct payment. It is unclear when the decision was made, but it seems to have been sometime in April or May 2017. The 130-day period ended on December 16, 2016.
63 The second case concerned an employee whose 130-day period ended on March 28, 2017. The decision to end IODL was made on March 31, with direct payment from the WCB to become effective on May 11. In this case, the employee was fully cooperating with his treatment, but the WCB confirmed on March 9 that there was no imminent return to work.
64 The third case was similar, in that direct benefits were to be paid starting approximately one month after the 130-day period ended, as there was no foreseeable return to work, according to the WCB. As in the previous case, the employee was fully cooperating with his treatment plan.
65 In cross-examination, although she hesitated because of the very summary information provided on the rationale documents, Ms. Wall agreed with the bargaining agent representative that it was more likely than not that the last two cases would have continued to be entitled to IODL under bulletin 2006-05. The first case was less clear, as the employee’s lack of cooperation might have been a reason to end IODL, even under the 2006-05 bulletin.
C. Evidence from the production order
66 Before the hearing, the bargaining agent had asked the respondent for a full picture of IODL from 2006 to 2015. I limited that request to the years 2010-2015, with the following information to be included: the IODL start and end dates and the eventual outcome of the workplace injury.
67 A table (referring approximately to 2010-2017) was produced at the hearing, and both parties urged me to be cautious in interpreting it, as it is incomplete and to some extent inaccurate. Moreover, different regions consider different factors, and the data was uneven. Sometimes it came from electronic sources and sometimes from handwritten sources. Therefore, I would not venture to draw any statistical conclusions from it. However, there is enough information to make at least some factual findings.
68 The table has 1865 IODL files reported for all the regions of Canada. A few files bear the same name but with different dates.
69 The first thing that is striking when examining the document is that in the majority of cases, employees on IODL return to work before the 130-day mark. The second striking thing is the change after the start of 2015. While there are cases dating to 2011, 2012, and 2013 in which IODL lasted beyond the 130 days, sometimes for several years, after January 2015, IODL is usually terminated shortly after the 130-day mark and the employee placed on direct WCB benefits, sometimes the very next day and usually within the following month. The noted justification is often “no RTW date”. In several cases, there is a further comment, and the RTW date appears, usually within the next six months. Even after 2015, some IODLs have lasted much longer than 130 days, but they are few.
70 The table confirms the evidence I heard from the witnesses. After October 2014, CSC management set out to impose the 130-day limit, save in exceptional circumstances or unless the return to work was imminent. As confirmed by witnesses for both parties, from 2006 to 2014, an injured employee who followed his or her treatment and cooperated with a RTW strategy and whose return to work was a possibility would continue to receive IODL until his or her effective return to work. After October 2014, a RTW date had to be set to extend IODL beyond 130 days, and that date had to be soon; otherwise, extending IODL was an exceptional decision requiring the authorization of senior management at a level-2-delegated authority. If no date was set, the employee’s manager generally ended IODL after 130 days, with or without input from the local RTW committee.
D. Redaction Order
71 To preserve the transparency of these proceedings, no documents have been sealed. However, some personal information appeared, which the parties asked to have redacted. I believe that those redactions are minimal and that they do not affect the intelligibility of the evidence but instead serve to protect the privacy of parties who were not present or represented at the hearing. Consequently, I have ordered the Board’s Secretariat to make the following redactions:
- Exhibits BA-4 and BA-5 (letters to employees): home addresses;
- Exhibit E-3 (a spreadsheet concerning IODL from 2010 to 2017): employees’ names in column B; and
- Exhibit E-5 (rationale document): employees’ names and WCB claim numbers.
III. Summary of the arguments
A. For the bargaining agent
1. The policy grievance
72 The bargaining agent argued that the parties had clearly expressed a common will, starting in 2006, to interpret clause 30.16 of the collective agreement as setting no limit to IODL, as long as the WCB continued to find the employee unfit for work. The Global Agreement provision that expressed that common will remain unchanged after the 2010-2013 bargaining round.
73 The policy found in bulletin 2006-05 was a reflection of the Global Agreement. It was both a common practice and the meaning of the collective agreement. The bargaining agent emphasized the similarity between this case and an earlier Board decision concerning the same parties, also a policy grievance and a statutory freeze complaint, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 47 (“UCCO-SACC-CSN 2016”), which will be discussed later in my reasons.
74 The employer clearly went back on its commitment to interpret the collective agreement a certain way. It set out to put an end to IODL as the parties had previously understood it, which was contrary to law and in bad faith. The employer decided unilaterally to go back to the arbitrary administration of IODL that had occurred before 2006. By its negative impact on employees with psychological injuries, the policy change was clearly adverse discrimination.
2. The unfair labour practice complaint
75 Bulletin 2006-05 constituted a term or condition of employment. It could be part of the collective agreement. It was certainly a negotiated term between the parties.
76 The parties signed the Global Agreement at the same time as the collective agreement and thus agreed on a given interpretation of the collective agreement. There was no change between the 2006 and the 2013 versions for IODL either in the collective agreement or the Global Agreement.
77 There is no evidence that the bargaining agent was truly consulted on bulletin 2014-04, and the bargaining agent was always clear in its complete disagreement with going back on the Global Agreement commitment, that is, having the employer pay IODL as long as the WCB confirmed that the employee was unfit to work. The bargaining agent was shown two versions of a new bulletin; bulletin 2014-04 was a third version that the bargaining agent never saw before October 2014.
78 With bulletin 2014-04, not only did the direct payment of WCB benefits become the norm after 130 days, but also, the RTW committees lost all influence. As shown in the rationale documents, managers sometimes made decisions before the local RTW committee had met. Mr. Grabowski testified that after October 2014, the RTW committees were told that employees were being placed on direct benefit payments, without input from the committees. This was a major change from the meaning of the Global Agreement, which had created the RTW committees.
79 Bulletin 2006-05 represented the common interpretation of clause 30.16 that the parties agreed to. Changing that policy after notice to bargain had been served was a clear violation of the statutory freeze.
80 The bargaining agent cited the following decisions to support its arguments: Professional Association of Foreign Service Officers v. Treasury Board, 2003 PSSRB 4 (PAFSO); Canadian Federal Pilots Association v. Treasury Board, 2006 PSLRB 86 (“Pilots Association”); Canadian Association of Professional Employees v. Library of Parliament, 2013 PSLRB 18 (“Library of Parliament”); and Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46 (“PSAC 2013”). I will come back to these cases in my reasons.
B. For the respondent
81 The respondent first stated that the employer has the authority to unilaterally amend terms and conditions of employment, subject to specific limitation in statutes or in the collective agreement. This authority is derived both from the management clause found in the collective agreement and the power vested in the employer by the Financial Administration Act (R.S.C., 1985, c. F-11), at ss. 7 and 11.1.
1. The policy grievance
82 The policy grievance refers to the Global Agreement between the CSC and the bargaining agent. The bargaining agent cannot come before this Board for a dispute arising from the Global Agreement. It is not part of the collective agreement, as stated in the Global Agreement, and the employer, the Treasury Board, is not a party to it. A policy grievance can be referred to the Board for adjudication, but under s. 220 of the FPSLRA, the policy grievance must deal with the collective agreement. This is not the case here.
83 The issue is whether by adopting bulletin 2014-04, the CSC breached clause 30.16 of the collective agreement. The respondent’s position is that it did not. Bulletin 2014-04 serves to clarify clause 30.16 and is consistent with it. That clause leaves the duration of IODL to the employer’s discretion. By contrast, other leave provisions, such as court leave in clause 30.15, leave no discretion to the employer to determine the duration.
84 The Treasury Board’s IODL guidelines apply throughout the public service. They offer guidance on how to exercise the discretion given to the employer by clause 30.16. With the 2006 Global Agreement between the CSC and the bargaining agent, IODL became unlimited.
85 By introducing bulletin 2014-04, management ensured that there would be a review at 130 days. It is inaccurate to state that IODL will automatically be cut at 130 days, as there is evidence that some employees will continue on IODL beyond 130 days. There is no evidence that managers have not been exercising their discretion properly, in conformity with clause 30.16 of the collective agreement.
2. The unfair labour practice complaint
86 There was no violation of s. 107 of the FPSLRA by the implementation of bulletin 2014-04. There was no change to the terms and conditions of employment found in clause 30.16. Even had bulletin 2006-05 created a practice, the bargaining agent had been given clear notice of the direction the CSC intended to take with respect to IODL.
87 This was not a matter of introducing a cap to IODL but rather one of establishing more rigorous measures to ensure that employees injured on duty would return to work.
88 To define the tests to assess a violation of s. 107, the respondent referred me to two decisions that I will discuss in my reasons: Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2016 PSLREB 26 (“Federal Dockyard Association”), and Public Service Alliance of Canada v. Treasury Board, 2016 PSLREB 107 (“PSAC 2016”).
89 Essentially, according to the respondent, there was a reasonable expectation that changes would be made to the 2006-05 bulletin. Discussions had taken place in 2012 and 2013, and the employer had given notice at the bargaining table (I note that this would be CSC, giving notice at the table negotiating the Global Agreement). This was similar to the situation in Federal Dockyard Association, where a policy change was implemented after notice to bargain had been served. The adjudicator concluded that the bargaining agent had had ample notice and that it was not up to him to decide whether the change was reasonable or not.
90 On remedies, the respondent stated that the policy grievance, if allowed by the Board, could lead only to a declaration. As for the complaint, if the Board determines that the statutory freeze was violated, it would be appropriate for it to hear further submissions. A number of individual grievances have been filed about the policy change. One blanket remedy may not be in the interests of all concerned.
A. The policy grievance
91 The respondent objected to the Board’s jurisdiction to decide the policy grievance based on the wording of the Global Agreement, which states, at page 25, the following: “It is understood that the provisions contained in this global agreement are not part of the collective agreement for the CX group and therefore not subject to grievances but rather to a distinct dispute resolution process.”
92 In Mungham v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 106, cited by the bargaining agent, the adjudicator concluded that the employer had breached the collective agreement provision dealing with overtime. The relevant article stated that the employer would make every reasonable effort to allocate overtime “on an equitable basis”. As in this case, in which a “reasonable period” for IODL remains undefined in the collective agreement, “equitable basis” was also undefined in the collective agreement, but had given rise to a side agreement at the level of the institution, on how overtime hours should be allocated. The employer had made a mistake (which it admitted to) and offered the grievor another overtime shift to compensate. The grievor insisted that he was entitled to the payment he would have received. The adjudicator allowed the grievance because the meaning of the collective agreement had been made clear by the side agreement.
93 Were it not for the wording of the Global Agreement, it could easily be seen that the same reasoning would apply in this case. However, I cannot ignore the will of the parties as embodied in their agreement. The parties have clearly excluded the Global Agreement from the collective agreement and specified that no grievance can arise from its provisions. Section 220 of the FPSLRA clearly states that a policy grievance can be presented with respect to the interpretation or application of a collective agreement or an arbitral award. This contrasts with individual grievances (s. 208) that can be presented concerning anything that affects terms and conditions of employment.
94 The bargaining agent is grieving the changes in the interpretation bulletins. Those bulletins refer directly to the Global Agreement and purport to provide an interpretation of the Global Agreement. Again, I cannot deal with a grievance that arises from the Global Agreement.
95 The present case can be distinguished from the decision in UCCO-SACC-CSN 2016, where the facts bear many similarities to those before me. That case also dealt with a combined policy grievance and complaint based on a breach of the statutory freeze provision. In that case, the employer had modified its interpretation of the sick leave provisions of the relevant collective agreement. While before, the employer had allowed advancing up to 200 hours of sick leave at separate times, it had changed its interpretation of the collective agreement provision so that an employee now had to reimburse all hours thus advanced before making another request for an advance, even if he or she had not reached the 200 hours.
96 The Board ruled that the bargaining agent’s interpretation of the collective agreement made more sense than that of the employer.
97 The main difference with the present case is that in UCCO-SACC-CSN 2016, the issue was interpreting a provision of the collective agreement. In that case, too, a policy had been modified. But the employees’ entitlement came directly from the collective agreement, not the Global Agreement. The Board had to interpret the collective agreement to decide which interpretation was a more faithful reflection of the intent of the parties. He did not have to consider an instrument that had been specifically excluded from the collective agreement.
98 I find that I am without jurisdiction to decide the policy grievance.
B. The unfair labour practice complaint: breach of the statutory freeze period
99 It is useful at this point, for the purpose of the discussion, to reproduce s. 107 of the FPSLRA, which reads as follows:
107 Unless the parties otherwise agree, and subject to subsection 125(1), after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or
- if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or
- if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).
100 Thus, terms and conditions of employment that may be included in a collective agreement, are continued in force and must be observed after a notice to bargain collectively is given.
101 I have decided that I have no jurisdiction over the policy grievance because of the wording of the Global Agreement. However, this agreement is binding on the parties as to the interpretation of the collective agreement, as the following text shows (from page 25):“The present agreement is valid until the signature of the next collective agreement. However, at any time during the application of this agreement, the parties may discuss its content and modify it if both parties agree.”
102 The relevant provisions of the Global Agreement read as follows:
For the purpose of these provisions [clause 30.16 of the collective agreement], CSC will apply the following:
- For all cases of employees on injury-on-duty, the definition of a “reasonable period” is not limited provided the Workers’ Compensation authority continues to consider the employee unable to work.
- Notwithstanding the above, the Treasury Board policy regarding injury-on-duty leave applies.
103 The respondent argues that the second clause allows it to reinstate the 130-day limit to IODL. The evidence I received was that from 2006 to October 2014, the understanding between the CSC and the bargaining agent was that the first clause did away with the 130-day limit. This was confirmed by the wording of bulletin 2006-05, and all the witnesses agreed that this was the case. Therefore, I find that with the implementation of bulletin 2014-04, there was a change to the policy affecting the terms and conditions of employment of CXs. Providing IODL while an employee was found unfit to work was a bargained term, albeit not with the Treasury Board but with the CSC. I see no reason that it could not be raised at the bargaining table with the Treasury Board, and therefore, I find that it fits within the ambit of s. 107 of the FPSLRA, as a term and condition that may be included in a collective agreement.
104 There is no dispute that the policy change occurred after notice to bargain was served. The bargaining agent maintains that that was a breach of s. 107 of the FPSLRA, the statutory freeze provision. The employer holds that the change was business as usual and that it was an example of using its management right to continue to administer the workplace while bargaining was ongoing.
105 In the following paragraphs, I will briefly review the more salient cases presented by both the bargaining agent and the respondent, to apply their principles to this case.
106 In PAFSO, the issue was the overpayment of foreign service officers upon their promotion. The collective agreement language was clear but somehow had been overlooked by the compensation authorities of the employer in that case, who had applied a more generous calculation that applied to other employees not covered by the relevant collective agreement.
107 The adjudicator found that the over-calculation was a mistake and that it had never been an established practice, since the bargaining agent was unaware of the situation until the employer started recovering the overpayments. The adjudicator found that there had been a violation of the statutory freeze not because the employer corrected its calculation but because it waited eight months to do it:
 In conclusion, I hereby declare that a violation of section 52 of the PSSRA [the predecessor legislation’s statutory freeze provision] has taken place insofar as the employer failed to abide by its policy of preventing over-payments from continuing when it found a mistake in pay calculation. The evidence presented does not support PAFSO’s submission that a practice existed that employees not be paid on promotion in accordance with clause 42.07 of their collective agreements.
108 The parties had agreed on the following idea, which the adjudicator endorsed:
 … section 52 of the PSSRA includes in the statutory freeze not only expressed and implied terms of employment, information agreements and established employer policies, but also the employees’ reasonable expectations as to the employer’s conduct, in other words “normal business practice” or “business as usual”….
109 In Pilots Association, the parties had negotiated a work schedule article in the collective agreement that provided that daily working hours would be between 7 a.m. and 6 p.m.; any hours scheduled outside those would be considered overtime. The employer had long sought more flexibility, so that the 7.5-hour shift could be worked, for operational requirements, outside those hours. The bargaining agent had agreed to add a possibility for the employer to change the hours, with 12 days’ notice. According to the adjudicator’s factual findings, it was understood that hours of work would not change daily. Yet after the notice to bargain had been served, the employer attempted to impose a change to the work schedule. The adjudicator found it was a violation of s. 107 because the bargaining agent had relied on the assurances the employer had given at the bargaining table that there would be no daily schedule changes.
110 In that decision, at paragraph 70, the adjudicator quotes as follows the Federal Court of Appeal in Treasury Board v. Canadian Air Traffic Control Association,  2 F.C. 80 (C.A.), as to the nature and purpose of the statutory freeze provision found then in the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), now in the FPSLRA:
24 The purpose of section 51 of the Public Service Staff Relations Act is to maintain the status quo in respect of terms and conditions of employment while the parties are attempting to negotiate an agreement. It is a particular version of a provision generally found in labour relations legislation is designed to promote orderly and fair collective bargaining. There must be some firm and stable frame of reference from which bargaining can proceed. The provision should not be given a narrowly technical construction that would defeat its purpose.
25 Section 51 is directed to “any term or condition of employment applicable to the employees in the bargaining unit” at a given point of time. The term or condition must be one that may be embodied in a collective agreement, not necessarily one that is embodied in a collective agreement. And it must be “in force” at the time notice to bargain collectively was given.
111 The issue in Library of Parliament was whether a change to the employer’s workforce adjustment policy during the statutory freeze period amounted to a violation of s. 39 of the Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 (2nd Supp.)), which is essentially the same as s. 107 of the FPSLRA. The Board member made several findings about the new policy. The changes it introduced were substantial and fundamental, and they amounted to a unilateral change of the employees’ terms and conditions and therefore could not be considered part of a normal business practice. He states the following at paragraph 18: “… it was simply not practical to infer that the concerned employees or their bargaining agent should reasonably have expected the implementation of a new WFA policy during the freeze.” He concluded that the statutory freeze provision had been violated.
112 PSAC 2013 provides a useful summary of the approaches this Board and its predecessors have taken to the statutory freeze provision in its different legislative incarnations. There are two main approaches: business as usual (or as before), and the reasonable expectations of employees. The latter approach can be considered more realistic in allowing changes by management that may not be business as usual but that would be expected. Life is not static, and when bargaining goes on for a length of time, management may have to make decisions that are part of its prerogatives.
113 As quoted in George W. Adams, Canadian Labour Law, second edition, at page 10-81, the following passage from BFCSD v. Simpsons Ltd., 85 CLLC 16,035 (O.L.R.B.), summarizes the reasonable expectation approach:
The “reasonable expectations” approach clearly incorporates the “practice” of the employer in managing the operation. The standard is an objective one: what would a reasonable employee expect to constitute his or her privileges (or “benefits”, to use a term often found in the jurisprudence) in the specific circumstances of that employer. The “reasonable expectations” test, though, must not be unduly narrow or mechanical given that some types of management decision (e.g. contracting out, workforce reorganization) would not be expected to occur everyday.…
114 In PSAC 2016, the Chairperson summarizes both approaches in the following succinct terms:
23 The statutory freeze provision provides that if there are established patterns in the employment relationship, the respondent must not alter them after giving notice to bargain. In other words, the respondent is governed by the “business as before” approach (see Public Service Alliance of Canada).
24 The Ontario Labour Relations Board (OLRB) described that approach in Spar Aerospace Products Limited v. Spar Professional and Allied Technical Employees’ Association,  1 Can LRBR 61 at page 68, as follows:
The “business as before” approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before….
25 An alternative test for determining if an employer breached a statutory freeze provision is the “reasonable expectations” approach, in which the question becomes the following: What would a reasonable employee expect to constitute his or her privileges or benefits in the specific circumstances of her or his employer? If the respondent’s change is not within the employee’s reasonable expectations, then it violates the statutory freeze provision.
26 The OLRB stated as follows in Teamsters Local Union 419 v. Arrow Games Inc.,  OLRB Rep. February 157 at para. 17:
17 … The respondent did, as it argues, have the right to reduce hours of work prior to the freeze (and retains that right subject to what is negotiated between the parties in their collective agreement). But the question is whether it can exercise that right during the freeze. It had not exercised it before. There is, in essence, a pattern of a five-day work week. Under what circumstances might a reasonable employee expect that to change?
115 In Federal Dockyard Association, parking fees were imposed on employees who had until then parked their personal vehicles at their worksites free of charge. These new fees were announced and implemented after notice to bargain had been served. The evidence showed that the Department of National Defence (DND) had for several years considered making changes to the parking policy and that it had kept the bargaining agent informed of its concerns, notably of the cost of maintaining the parking lots. The Board’s reasoning is captured in the following paragraph:
50 While I do not disagree with the FGDCA’s suggestion that an employer that wishes to revoke a privilege that may reasonably be expected to continue must do so, or at the very least communicate its intention to, before the freeze period starts, it follows that when an employer’s past conduct makes such an expectation unreasonable, and when it has warned the other party of its intention to alter the privilege in question before the freeze period starts, then such a privilege ought not to be captured by the status quo.
116 In PSAC 2016, the issue giving rise to the statutory freeze complaint was a change to the shift schedules of ships’ crews employees working on the Canadian Forces Auxiliary Vessel (CFAV) Firebird. It was a fire-response vessel that had been used for several years for security rounds. Schedules were established according to the collective agreement.
117 After notice to bargain had been served, a decision was made to dispose of the CFAV Firebird. Therefore, its crew was assigned to other vessels. At the same time, the Royal Canadian Navy changed the way security rounds were conducted and changed the shift schedules. The evidence showed that changing the shifts reduced work hours (from a 42- to a 37.5-hour week) as well as overtime, holiday pay, and leave entitlements.
118 Based on the reasonable expectations approach, the Chairperson found there had been no violation of the statutory freeze provision, as the process for change had begun before notice to bargain was given. She quoted the following passage from BFCSD, at para. 34:
The reasonable expectations approach also integrates those cases which affirm the right of the employer to implement programmes [sic] during the freeze where such programs have been adopted prior to the freeze and communicated (expressly or implicitly) to the employees prior to the onset of the freeze ….
119 I draw from the case law that in addition to being a term or condition that could be embodied in a collective agreement, the practice that has been changed during the statutory freeze must be clear and recognized by both parties. In the present case, the practice of not limiting IODL as long as the WCB agreed the employee was unfit for duty was part of a signed agreement between the CSC and the bargaining agent that had been in effect since 2006. Moreover, an interpretation bulletin confirmed the practice. Therefore, it was a practice that was clear and recognized by both parties.
120 The policy change from bulletin 2006-05 to bulletin 2014-04 was significant and had a considerable impact on employees injured at work. Whether applying the business-as-usual test or the reasonable expectations test, there was a change to a term or condition that may form part of a collective agreement.
121 The change cannot be considered business as usual as it was a major departure from the established practice. Nor can it be considered within the reasonable expectations of the bargaining agent or of the employees. The bargaining agent completely disagreed with foregoing the security of IODL for CXs injured on duty. The draft bulletins, which provided contradictory approaches, cannot be considered notice of the changes to come. With bulletin 2014-04, the CSC essentially denied its commitment, found in the Global Agreement, to maintain IODL while an employee is unfit to work, as ascertained by the WCB. The facts are quite different from Federal Dockyard Association, in which the employer had consistently stated that it was considering implementing parking fees to reflect fair market value and had given fair notice that it intended to withdraw the privilege of free parking.
122 The Global Agreement was a negotiated instrument between the bargaining agent and the CSC, not a privilege that the employer could remove in the course of its business. In Federal Dockyard Association, the DND’s parking policy provided that the free parking privilege “… could be revoked at any time for military, security, or other DND operational measures.”
123 In the other case cited by the employer as an example of the reasonable expectations approach, PSAC 2016, the schedule change was not contrary to the collective agreement, the employer had foreseen it long before and had communicated it to the bargaining agent.
124 In the present case, there might have been a reasonable expectation that changes would be brought to the policy appearing in bulletin 2006-05 and that additional criteria might be discussed with the bargaining agent, for example in the case of employees who did not cooperate. However, neither the bargaining agent nor the employees expected that the Global Agreement, i.e., the collective agreement construction that the CSC and the bargaining agent had committed to in writing, would be flatly contradicted in a bulletin during the life of the collective agreement and the Global Agreement.
125 Therefore, I find that the implementation of bulletin 2014-04 changed the terms and conditions for employees after notice to bargain was served, which constitutes a violation of s. 107 of the FPSLRA. Until a new collective agreement is signed, the respondent must reinstate bulletin 2006-05 and must deal accordingly with affected employees. To be clear, this decision covers the period from October 14, 2014, until the next collective agreement is signed, unless the parties agree otherwise.
126 The bargaining agent raised the issue of discrimination. It is unclear, from the arguments and from the notice to the Canadian Human Rights Commission that was made pursuant to s. 222 of the FPSLRA, whether the discrimination is linked to the disability of injured employees or to the vulnerability of employees who have suffered psychological injury.
127 I find that the bargaining agent did not articulate how the impact of the change in policy discriminates or adversely differentiates against disabled or injured employees nor did it refer to any evidence in support of such a claim.
128 Consequently, I find that the discrimination claim has not been substantiated.
129 I have found that I do not have jurisdiction to decide the policy grievance, but I have maintained the terms and conditions established by the Global Agreement until a new collective agreement is signed. I wish to briefly state my dismay on noting the breach of the contract that the bargaining agent negotiated in good faith with the CSC.
130 There is something disingenuous in the CSC agreeing to a certain interpretation of the collective agreement by negotiating the Global Agreement, only to renege on this agreement while it is still in effect. The Treasury Board is the employer, the Treasury Board did not negotiate the Global Agreement, and the respondent’s reasoning is that it is not bound by it.
131 Yet, when the CSC chooses to apply the words of the collective agreement to state that the employer determines the reasonable duration of IODL, the “employer” in that sentence is the CSC. The decision to change the conditions for IODL as it applies to CXs was made by the CSC, not the Treasury Board. The authority to make that decision was the employer’s authority delegated to the deputy head by the Treasury Board. In the collective agreement, “employer” is defined as follows: “means Her Majesty in right of Canada as represented by the Treasury Board, and includes any person authorized to exercise the authority of the Treasury Board”.
132 When the bargaining agent seeks to ensure favourable terms for the members of the bargaining unit it represents, it deals with whoever is deemed vested with the employer’s authority; otherwise, negotiating would make no sense. In good faith, the bargaining agent negotiated with the CSC the status quo in the 2013 Global Agreement to maintain IODL for CXs as long as the WCB confirmed that they were unfit to work. It was clear from the wording of the Global Agreement that the 130-day limit would not apply. The CSC did not act in good faith when it went back on its signed commitment.
133 For all of the above reasons, the Board makes the following order:
134 The policy grievance in file no. 569-02-716 is dismissed.
135 The complaint in file no. 569-02-166 is allowed. The provisions of the Global Agreement, as found in bulletin 2006-05, are in effect from October 14, 2014, until the next collective agreement is signed, unless the parties agree otherwise.
July 10, 2017.
a panel of the Federal Public Sector Labour Relations and Employment Board