RE:  Notes on compensation, transitional provision, term employee

Dear Sisters and Brothers:

Some locals have brought it to our attention that the transitional provision negotiated at the last round of bargaining was not always clearly understood.

The article that was questioned is as follows:

“SERVICE AND PROGRAM GROUP (SP)
PAY NOTES
TERM EMPLOYEES – FULL-TIME AND PART-TIME
6.
  c) Transitional Note – Employees who were previously term employees but who were not on strength at the time of the SP conversion will be brought back at the rate of pay that is closest to but not less than the rate of pay at which they left the CRA calculated as if they had been on strength at the time of conversion.”

We contacted the PSAC representatives to obtain an interpretation of this paragraph, to verify the implementation by the employer and whether there is reason to consider possible recourses.  This transitional note applies to all term employees from the former occupational groups such as DA-PRO, CR, PM, etc.) “but who were not on strength” and who are returning to work at the CRA.

The question raised is as follows:

When a term employee returns to work, for the first time, his/her converted salary is calculated based on the salary that he/she was receiving in the position he/she held under the former classification standard.  When the term employment ends and that same employee is called back a little later, how is his/her salary calculated?

Here is an excerpt from the PSAC’s interpretation that answers this question:

“… it is important to draw a distinction between employees appointed on a specified term basis and indeterminate employees.  It is acknowledged that employees appointed on a specified term basis lose their status as employees when the period established in their contract expires.  Consequently, their rights differ from those of indeterminate employees.

In this case, the employer extended salary protection to employees who were not on strength at the time of the conversion.  We believe that in itself is recognition of the special status these employees have.
[…]
“This salary protection applies to the first rehire only until the employee leaves or until employment has been terminated.  On the second rehire, the transition rule no longer applies and only the rule pertaining to cumulative services applies.”

[Emphasis added]

The cumulative service rule appears in the Pay Administration Guide (PAG) - Reclassification and Conversion, which reads as follows:

 “3.2.2 Lower level
If a position is converted to a group and/or level having a lower attainable maximum rate of pay, the employee shall retain the rates of pay of the former group and level.
This salary protection remains in effect until the position is vacated or the maximum for the converted level becomes greater than that applicable to the former level.”

[Emphasis added]

The PSAC also studied the adjudicable aspect of this situation and concluded that:

“Given the wording of the Pay Administration Guide, we cannot determine from an adjudication standpoint that the employer is not living up to its obligations or is contravening the collective agreement.  Even if a grievance were filed relating to this situation, an adjudicator appointed under the Public Service Labour Relations Act (PSLRA) would not have jurisdiction to hear the grievance.”

Although we agree with the PSAC’s interpretation, we must protect the rights of term employees who return to the CRA, for the first time.  Therefore, we are asking you to be vigilant for these employees to ensure that this article is properly applied. We should proceed on a case-by-case basis with all the specific details.

We would like to point out that this article in the collective agreement is still a breakthrough for term employees who are not on strength when a collective agreement is signed, and be assured that we will continue as long as possible to speak out on behalf of all workers that the PSAC/UTE represents at the bargaining table.

Respectfully submitted,

Denis Lalancette
2nd National Vice President - Bargaining

Agreement between the Canada Revenue Agency and the Public Service Alliance of Canada – Expiry Date:  October 31, 2010 (page 78)