Background

The Public Service Reform Act (PSRA) was enacted in an effort to restructure the public service.  The PSRA redefines "managerial/confidential positions" to encompass all Treasury Board employees and all employees who participate to a significant degree in the determination of any government policy or program.

Complainants' Allegation

The PSRA violates Convention Nos. 87 and 151 by depriving thousands of federal public service employees freedom of association and collective bargaining rights by broadening the definition of managerial and confidential employees under the Public Service Staff Relations Act.  Government has the power to spread duties relating to the grievance process broadly, thereby excluding a great number of employees from bargaining units. 

Convention No. 151 recognizes that high-level employees can be excluded from bargaining units, but the PSRA far exceeds this narrow exception with its broad language.  The employer is granted broad discretion to deem workers managers and therefore deny them collective bargaining rights.

Government's Reply

Excluding managers from bargaining units is necessary to prevent conflicts of interest and to prevent employer interference in union activities.  In determining the PSRA's exclusions, two considerations were important: (1) identify an adequate management team that carries out responsibilities on behalf of the employer, and (2) identify persons (managerial exclusions, etc) who would be prohibited by law to interfere with bargaining agents.

Even the employees excluded from collective bargaining under the PSSRA still enjoy the protection and remedies provided by the PSSRA, since those workers will receive identical rates of pay as their unionized colleagues.

CFA Conclusions

There are conflicting submissions over the extent to which the Government consulted with stakeholders prior to enacting the PSRA.  The CFA stresses the importance of consultation prior to the introduction of amending legislation.

Convention No. 87 states that workers, without distinction whatsoever, have the right to establish organizations to defend their interests.  Excluding managers is inconsistent with this general principle.  Prohibiting managerial staff from joining trade unions representing other workers is acceptable provided that managers have the right to form their own organizations and worker unions are not weakened by broad exclusions. 

The language of the PSRA sets clear and precise criteria for who can be considered a manager, contrary to the allegation of undue discretionary authority.  An independent tribunal, the Public Service Staff Relations Board will determine whether a group of employees constitute an appropriate bargaining unit.

The broad exclusion of all Treasury Board workers is not justified and constitutes a violation of freedom of association.  The exclusion should be limited to high-level employees with policy-making/managerial or highly confidential duties.