Treasury Board Arbitration Submission

271 Pages·2012·3.51 MB·English

by  Sigouin, Martine

SUBMISSION OF THE
TREASURY BOARD TO THE
ARBITRATION BOARD
IN RESPECT OF THE
LAW GROUP

CHAIRPERSON: Mr. François Bastien
MEMBERS: Mr. Jean-Francois Munn
Mr. Paul Cavalluzzo

OTTAWA May 29, 30 and June 26, 27 and 28, 2012
LA Arbitration Board Brief i
IN THE MATTER OF THE PUBLIC SERVICE LABOUR RELATIONS ACT
and a dispute affecting the ASSOCIATION OF JUSTICE COUNSEL and
HER MAJESTY IN RIGHT OF CANADA as represented by the
TREASURY BOARD, in respect of all of the employees of the Employer in
the Law bargaining unit as determined in the certificate issued by the
PUBLIC SERVICE LABOUR RELATIONS BOARD on
September 12, 2007.
LA Arbitration Board Brief ii
FOREWORD
This Brief is presented without prejudice to the Employer’s right to present any additional facts
or arguments it considers appropriate and relevant during the proceedings of the Board.
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Executive Summary
Despite the recovery of the Canadian economy, it is still operating below capacity. The
unemployment rate remains high and wage growth remains well below pre-recession levels.
There are a number of global risks to future economic growth, mainly resulting from the
unsustainable fiscal situation of Canada’s trading partners in Europe and the U.S.
In the current environment, affordability has become a dominant consideration in all aspects of
government operation. The government’s foremost priority is to restore fiscal balance, so as to
establish the conditions necessary for sustained economic growth and to better enable it to
sustain any future deterioration in the global economic outlook. At the federal government level,
expected deficits from 2008-09 to 2014-15 will reach a cumulative $152 billion and the federal
debt will climb to almost $614 billion. This means the government has limited fiscal flexibility in
which to address emerging concerns and priorities during these uncertain times, including
collective bargaining demands.
Given the uncertain global economic and unfavourable fiscal context, most provincial and
territorial governments have also announced specific restraint measures to ensure sound
management of public sector spending. Details on restraint measures taken by the
provincial/territorial governments are provided in Appendix E.
Recognizing the economic and fiscal risks that confront it, the federal government has taken
action across the full range of its responsibilities to restore fiscal balance and ensure sound
public finances. This includes closing tax loopholes that will generate over $2.5 billion in annual
savings by 2014-15, putting transfers to the provinces and territories on a sustainable track,
making changes to OAS to ensure that it remains sustainable, and taking action to reduce the rate
of growth of its operating expenditures.
In contrast to many provinces, the federal government has taken a measured approach to
managing compensation growth, guided by the principle of bringing federal public service
compensation in line with that of other public and private sector employers. The elimination of
any further accumulation of severance pay benefits for resignation and retirement is one example
LA Arbitration Board Brief iv
of how the government aims to achieve this goal. The government will also be taking measures
to ensure the sustainability of federal public sector pension plans.
On March 12, 2009, in response to the global economic recession, the Expenditure Restraint Act
(ERA) came into force ensuring that compensation for the public sector would reflect the current
economic and fiscal situation (i.e. affordable and appropriate). The economic increases provided
to the LA group in their latest 5-year agreement (from 2006-07 to 2010-11) were consistent with
the rates as set out under the ERA.
In the fall of 2010, in order to bring predictability to employees and departments and agencies,
the government engaged in expedited bargaining with bargaining agents. Agreements have been
reached and signed with a number of bargaining agents, representing about 234,000 unionized
and non-unionized federal government employees, including members of the Royal Canadian
Mounted Police, the Canadian Forces and all executives in the core public administration. The
pattern of wage settlements reached thus far has been 1.75% in year 1 (2011-12), 1.5% in year 2
(2012-13), and 2.0% in year 3 (2013-14), which includes an increase of 0.25% in year 1 and an
additional 0.50% in the year 3 in return for the elimination of severance pay for resignation and
retirement. Other federal public sector employers are pursuing similar approaches.
In this context, only modest economic increases would be appropriate for the LA group.
In addition, current levels of compensation for the LA group are sufficient as evidenced by
relatively healthy recruitment and retention levels. The LA group does not have any recruitment
and retention problems, as it has attracted and retained a sufficient number of employees both
nationally and regionally.
The LA group’s last settlement provided gains in a five-year agreement. The general economic
increases of 2.5% in 2006-07 and 2.3% in 2007-08, 1.5% in 2008-09, 1.5% in 2009-10, and 1.5%
in 2010-11 (for both bargained and excluded lawyers) provided for wage increases above
inflation, thereby ensuring growth in real wages, and federal government lawyers’ standard of
living.
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When examining base salary, LA compensation is at or above the governments of Québec, New
Brunswick, Nova Scotia, and Manitoba. When looking at total cash compensation, which
includes base salary and short-term incentive (e.g. performance pay), LA compensation is at or
above the governments of Québec, New Brunswick, Nova Scotia, Manitoba, Saskatchewan and
British Columbia.
Though there are negative variations in Ontario and Alberta, when one examines both base
salary and total cash compensation, the large variation in pay policies across the provinces and
territories highlights that there is not a single national market or level of compensation applicable
to all lawyers. Given the evidence that lawyers’ pay rates are determined by local markets, it is
reasonable to expect that compensation for Ontario government lawyers would be principally
determined by lawyers’ pay rates in Toronto, which are markedly higher than lawyers’ pay rates
in Ottawa, where over 40% of federal government lawyers are located.
Even though pensions are not subject to negotiation, a full comparison of compensation also
needs to take account of the generally more generous pension benefits enjoyed by federal
government lawyers, especially in comparison with their Ontario government counterparts. This
advantage is expected to remain over the medium term.
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Table of Contents
FOREWORD ............................................................................................................................. ii
Executive Summary .................................................................................................................. iii
INTRODUCTION ..................................................................................................................... 1
PART I GENERAL INFORMATION ................................................................................... 4
Treasury Board of Canada ........................................................................................................... 5
Core Public Administration ......................................................................................................... 5
Law (LA)Group Definition .......................................................................................................... 7
Bargaining Unit Characteristics................................................................................................... 8
PART II CURRENT NEGOTIATIONS .............................................................................. 11
History of Negotiations ............................................................................................................. 12
Employer Bargaining Team…………………………………………………………………...13
Matters Resolved ....................................................................................................................... 14
Outstanding Issues ..................................................................................................................... 16
PART III RATES OF PAY ................................................................................................... 20
Policy Framework for the Management of Compensation ........................................................ 21
Economic and Fiscal Circumstances ......................................................................................... 22
Recruitment and Retention ........................................................................................................ 27
External Comparison ................................................................................................................. 35
Internal Comparison .................................................................................................................. 40
Individual and Group Performance ........................................................................................... 41
Employers submission for rates of Pay and Duration ............................................................... 41
PART IV OTHER OUTSTANDING ISSUES ..................................................................... 43
Article 11 Leave With or Without Pay for Association Business
or for Other Activities Under the PSLRA .............................................................................. 44
Article 13 Hours of Work .......................................................................................................... 46
Article 14 Travelling Time ........................................................................................................ 51
Article 17 Vacation Leave With Pay ......................................................................................... 55
Article 18 Sick Leave With Pay ................................................................................................ 58
Article 19 Other Leave With or Without Pay ............................................................................ 60
Article 20 Career Development ................................................................................................. 62
Article 22 Severance Pay ........................................................................................................... 67
Article 28 Registration Fees ...................................................................................................... 77
Article 31 National Joint Council Agreements ......................................................................... 78
Article 32 Part Time Employees ............................................................................................... 81
Article 33 Statement of Duties .................................................................................................. 83
Article 37 Benefits ..................................................................................................................... 84
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Article 38 Duration .................................................................................................................... 89
New Article Professional Experience Allowance ..................................................................... 90
New Article Standby and Call-Back ......................................................................................... 91
Appendix B Performance Pay Plan ........................................................................................... 92
APPENDICES ........................................................................................................................ 105
A Policy Framework for the Management of Compensation
B Demographic Data
C Payroll Distribution
D Wage Comparability Study
E Provincial/Territorial Government Compensation Restraint Measures
F Hiring Statistics
G Separation Statistics
H LA Hirings to Separations Ratios
I Public service Commission LA Job Advertisement Data
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INTRODUCTION
This Arbitration Board has been established to deal with the items in dispute between the
Employer and The Association of Justice Counsel with respect to the Law Group.
Part I of the Employer’s Brief gives general background information with respect to this Group
such as the definition and characteristics of this Bargaining Unit including its population and
payroll distribution.
Part II of the brief deals with the history of the current negotiations.
Part III presents the Employer’s position on rates of pay.
Part IV deals with the other remaining outstanding issues.
Prior to proceeding to examine the specific issues in dispute, the Employer wishes to submit
several comments concerning what the Employer views as fundamental to its approach during
the collective bargaining process; and, to the proceedings before this Board of Arbitration.
SECTION 148 of the PUBLIC SERVICE LABOUR RELATIONS ACT
Section 148 of the Public service Labour Relations Act (PSLRA) sets out the factors that an
Arbitration Board must consider in arriving at an award. It is our intention that the information
and arguments contained herein assist this Board in the performance of its duty as contemplated
by Section 148 of the Act.
Accordingly, included below are the provisions of Section 148 for ease of reference:
In the conduct of its proceedings and in making an arbitral award, the arbitration board
must take into account the following factors, in addition to any other factors that it considers
relevant:
(a) the necessity of attracting competent persons to, and retaining them in, the public
service in order to meet the needs of Canadians;
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(b) the necessity of offering compensation and other terms and conditions of employment
in the public service that are comparable to those of employees in similar occupations in
the private and public sectors, including any geographic, industrial or other variations that
the arbitration board considers relevant;
(c) the need to maintain appropriate relationships with respect to compensation and other
terms and conditions of employment as between different classification levels within an
occupation and as between occupations in the public service;
(d) the need to establish compensation and other terms and conditions of employment that
are fair and reasonable in relation to the qualifications required, the work performed, the
responsibility assumed and the nature of the services rendered; and
(e) the state of the Canadian economy and the Government of Canada’s fiscal
circumstances.
EMPLOYER’S POLICY ON COMPENSATION
The Policy Framework for the Management of Compensation is reproduced in Appendix A.
The Policy Framework establishes that compensation decisions should be guided by four
overarching principles:
1. External Comparability: Compensation should be competitive with, but not lead
compensation provided for similar work in relevant labour markets;
2. Internal Relativity: Compensation should reflect the relative value to the employer
of the work performed;
3. Individual/Group Performance: Compensation should reward performance, where
appropriate and practicable, based on individual or group contributions to business
results; and,
4. Affordability: The cost of compensation must be affordable within the context of the
commitments to provide services to Canadians, the fiscal circumstances, and the state
of the Canadian economy.