Guidelines on Managerial or Confidential Exclusions
1. Introduction
The following outlines the procedures to be followed for excluding managerial or confidential positions.
2. Legislative base
The Public Service Labour Relations Act (PSLRA, Sections 59 to 63 and 71 to 78), as enacted by the Public Service Modernization Act contains the legislative framework for determining managerial or confidential exclusions.
3. Application
These guidelines apply to departments and agencies listed under Schedules I and IV of the Financial Administration Act and for which Treasury Board is identified as the employer.
4. Terminology
The definitions of various terms (e.g., bargaining agent, bargaining unit, board (PSLRB), employee, employer) used throughout these guidelines are found in the PSLRA.
5. Roles and responsibilities
Departmental managers with the advice and guidance of departmental Human Resources (i.e., Labour Relations) officials are responsible for:
- identifying their complement of managerial or confidential positions;
- justifying such proposals providing the rationale behind decisions; and
- producing any required documentation.
Departmental Human Resources (i.e., Labour Relations) officials, with the advice and guidance of TBS officials are responsible for:
- providing the necessary advice and guidance to departmental managers;
- assisting in the preparation of documentation and rationales;
- consulting with representatives of bargaining agents in an attempt to reach an agreement on the proposals;
- submitting the proposals to TBS;
- providing Employer witnesses during PSLRB hearings; and
- ensuring that employees occupying excluded positions are identified as such in departmental HR systems, the TBS's database and in the PWGSC Pay System.
The Treasury Board Secretariat (TBS), is responsible for:
- providing advise and guidance to those departmental officials responsible for exclusions;
- reviewing departmental proposals and their content;
- preparing submissions and ensuring copies are properly distributed (i.e., to bargaining agents and the PSLRB);
- monitoring the process and progress of the proposals and keeping departments informed of their status;
- negotiating agreements;
- preparing witnesses and providing Employer representation before the PSLRB with the assistance of the TBS Legal Services Group when required;
- maintaining a central database and statistical information on exclusions;
- monitoring departmental compliance with the PSLRA; and
- reviewing policy instruments, as required.
Despite best efforts, the parties may not be able to agree on all matters pertaining to a managerial or confidential exclusion proposal. Bargaining agents may object to an exclusion proposed by the Employer. The Employer would then apply to the PSLRB and ask them to decide. In such cases, the PSLRB becomes the neutral arbiter. Further details are found in section 6.1.2 below.
6. Managerial or confidential exclusion process
6.1 Identification of positions
Positions are excluded, not persons. The criteria for exclusion are listed in section 59(1) of the PSLRA. Annex A provides a breakdown of the changes from the previous act, a brief explanation of the exclusion determination, and a link to the PWGSC Pay System codes for ease of reference. Any further explanations can be obtained from the TBS via departmental corporate LR. A flowchart illustrating the process is contained in Annex B.
6.1.1 No objections
An undisputed position identified under the PSLRA becomes excluded as soon as the PSLRB has declared it so and the TBS has advised the department. The incumbent is then considered to be excluded and departments should take action to stop union dues as detailed in the Union Dues Check-off Directive.
6.1.2 Objection is filed
Under Sections 61and 74 of the PSLRA, a bargaining agent may object to an exclusion proposed by the Employer and ask that the PSLRB determine its validity. If an objection is filed, TBS will advise the department concerned and the PSLRB will give the parties an opportunity to make representations, normally through a hearing. Regardless, departmental and bargaining agent representatives should continue to meet and try to resolve the matter.
Failing agreement, the parties will be invited to make representations to the PSLRB, which will determine whether the duties of the position warrant exclusion and issue a decision to the TBS. The burden of proof varies depending on PSLRA clause used to determine the exclusion.
The onus is on the bargaining agent in relation to positions described in clause 59(1)(a), (b), or (c)). The onus is on the department and the TBS in relation to positions described in any of clauses 59(1)(d) to (h).
The PSLRB may appoint an examiner to collect facts and evidence from departmental witnesses and submit a written report to the parties. The type of information the examination explores may include the following:
- the mandate, broad objectives and the type of work provided by the organization;
- the reporting relationship;
- budgets and allocation of resources;
- the management and utilization of resources;
- the extent and impact of decision-making authority;
- the degree of confidentiality; and
- the probability of real conflict of interest.
Following the review of the examiner's report and failing a resolution between the parties, the matter will be scheduled for a formal hearing where the PSLRB will determine the exclusion.
It should be noted that in those situation under Section 77 of the PSLRA where the bargaining agent is making an application to revoke an order declaring a position to be excluded (e.g., when the bargaining agent feels that the duties of a position have change in such a way as to bring the position outside the scope of the managerial or confidential exclusions), the burden of proof is on the bargaining agent. The challenge process in this regard is the same.
While a decision on the exclusion status of a position is being determined, the incumbent of the position remains in the bargaining unit and subject to the applicable terms and conditions of employment. In accordance with Section 76 of the PSLRA, during this period, an amount equivalent to the union dues for that position is withheld via payroll deductions and retained for future remittance to the incumbent or the bargaining agent. If the PSLRB ultimately determines that the position should be excluded, the amount withheld is returned to the employee and payroll deductions cease. If the PSLRB decides that the position should continue to be in the bargaining unit, the dues are remitted to the bargaining agent. TBS officials will advise departmental Human Resources officials of any objections to ensure proper action regarding the withholding of union dues is taken.
6.2 Required documentation
Departments must provide the following documentation to the TBS when submitting exclusion proposals:
Three copies of the following supporting documentation are required in all cases:
- form (TBS\CTS 340-10 (Rev. 1993/06)), "Managerial or Confidential Position";
- a position description; and
- an organization chart.
Under section 59(1)(d) to (h) of the PSLRA, three copies of the following supporting documentation are also required:
- the letter of delegation of authority to respond to grievances and the grievance procedure chart, when the reason for exclusion is a grievance step officer under 59(1)(e); and
- the supervisor's position description, when the reason for exclusion is confidential under 59(1)(h).
7. Assignments
Generally, only one person can be the occupant of an excluded position. Therefore, when a person leaves an excluded position for a temporary period and another person from a bargaining unit position replaces the incumbent, it is the employee performing the duties of the managerial or confidential position who is excluded. Details regarding the effective dates and changes to union dues for acting situations, secondments, or other assignments can be found in the Union Dues Check-off Directive.
8. Union dues
Details regarding the impact of exclusions on union dues are found in the Union Dues Check-off Directive.
It is very important to note that departmental Compensation officials must be advised of changes to the exclusion status of a position as soon as it is known to ensure that the appropriate action is taken to adjust union dues in a timely manner.
9. Information to employees
Once a position is proposed for exclusion, departmental officials should advise incumbents of these positions and should provide them with information about their eligibility for coverage under the Public Service Management Insurance Plan along with the applicable enrolment forms.
10. Data collection
TBS is responsible for monitoring and maintaining exclusion records through the Position Exclusion System Departmental Module (PESDM). This module is used by departments to relay to TBS changes made to current excluded positions, to positions that will no longer be excluded and the addition of positions that have been proposed for exclusion. This operation is done once a month or when necessary. TBS is responsible for reviewing the database by agreeing to changes/deletions made in the system. TBS will also change the status of a proposed position by confirming agreement by the bargaining agent and applying to the PSLRB for an order, which will activate the cessation date of dues deductions once the order is issued. TBS will also change the status of a proposed position to "objected" where the bargaining agent disagrees to the proposal. Once the update has been completed, TBS will send a revised version of the database to departments. TBS also sends updates to the bargaining agents on a monthly basis.
11. References
Public Service Modernization Act
Public Service Labour Relations Act
Public Service Labour Relations Board Regulations and Rules of Procedure.
12. Enquiries
Enquiries regarding the exclusion process should be directed to departmental human resources officers who, in turn, may direct enquiries to:
Labour Relations Sector
Treasury Board of Canada Secretariat
Annexes
A. Explanatory Notes on Managerial or Confidential Exclusions
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