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1 - AJC General FAQs

2 - Work Force Adjustment

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As you recall, in June 2011, Treasury Board announced that it would be initiating a Strategic and Operating Review (“SOR”) which would require all federal government departments to submit proposals reducing their budgets from 5 to 10%.

We have since witnessed the impact of this review which has led to cuts to services and departments through attrition or workforce adjustment. As of July 2013, the AJC has seen 49 of its members within the Department of Justice declared surplus.
 
Most recently, at the end of June 2013, the AJC was notified that 17 of our members in the Business and Regulatory Advisory Section British Columbia will be affected. DOJ also asked 30 volunteers from our AJC members in the Tax Law Portfolio to leave their positions in the 2014-2015 fiscal year, an approach aimed at avoiding a brutal SERLO process.
 
And so, in the wake of these recent announcements, the AJC wishes to remind you that in the event you are declared surplus, we have included information below that you may access to address questions you may have in the area of Work Force Adjustment.  Should you, after consulting the materials below, still have questions regarding your personal circumstances, we recommend that you contact your local GC representative directly or an AJC Labour Relations Officer by sending your inquiry to admin@ajc-ajj.com .
    
As a unionized member, you benefit from certain protections.  If you have been declared surplus, you are protected by the terms and conditions set out in the newly revised NJC Work Force Adjustment Directive (“WFAD”) which is incorporated by reference in the LA collective agreement and which came into effect on March 12, 2013.
    
Here is a listing of Frequently Asked Questions.  A listing of additional reference materials is also included at the end of this document.  These materials are extensive and we strongly encourage all members who are affected by a WFA to read all of these documents carefully prior to exercising their options.  The FAQs listed below serve as an introductory tool only that will help direct you to the relevant provisions of the WFAD or related reference materials.

For information about non-renewal or early termination of Term Employees, visit our FAQ on Term Employees.
 

3 - AJC's Request for Arbitration

4 - AJC Health and Safety FAQs

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As a result of recent inquiries involving a few recent work-related incidents, the AJC has developed the following Q&A to assist those members who have reason to believe that their or their colleagueīs health and safety may be at risk while at the workplace. Please review the enclosed and direct any specific H&S inquiries you may to your local employee health and safety representative or the AJC directly at the admin@ajc-ajj.com .

5 - Classification and Job Description

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Please note that the FAQs have been updated on October 25, 2016.

6 - FAQs for Term Employees

7 - FAQs on Alternation

Source: Treasury Board of Canada Secretariat

8 - Collective Agreement

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(Archived)

Please note that the FAQ was updated August 1, 2012. The new Q&As are preceeded by "*".
Please note that the FAQ was updated September 14, 2012. The new Q&As are preceeded by "**".
Please note that the FAQ was updated March 18, 2013. The new Q&As are preceeded by "***".
Please note that the FAQ was updated April 10, 2013. The new Q&As are preceeded by "****".
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Summary of Main Elements following the Conciliation Award and Prior Bargaining

• The term of the agreement is 4 years, from May 10, 2014 to May 9, 2018

• Pay rates will increase for all levels as follows:

Effective May 10, 2014 - 1.25% salary increase
Effective May 10, 2015 - 1.25% salary increase
Effective May 10, 2016 - 1.00% (wage adjustment)
Effective May 10, 2016 - 1.25% salary increase
Effective May 10, 2017 - 1.25% salary increase

• Step-brother and step-sister will be added to Bereavement Leave With Pay.

• Grandchildren will be added to Leave Without Pay for the Care of Immediate Family.

• Gender identity and gender expression will be added to the No Discrimination clause.

• The following will be added to 21.06

Except as otherwise specified in this Agreement:  

a. where leave without pay for a period in excess of three (3) months is granted to a lawyer for reasons other than illness, the total period of leave granted shall be deducted from “continuous employment” for the purpose of calculating severance pay and from “service” for the purpose of calculating vacation leave;

b. time spent on such leave which is for a period of more than three (3) months shall not be counted for pay increment purposes.

• The following changes will be made to 19.13 Leave With Pay for Family-Related Responsibilities

(a) For the purpose of this clause, family is defined as spouse (or common-law partner resident with the lawyer), children (including foster children, children of legal or common-law partner), parents (including stepparents or foster parents), father-in-law, mother-in-law, brother, sister, step-brother, step-sister, grandparents of the lawyer, grandchild, or any relative permanently residing in the lawyerīs household or with whom the lawyer permanently resides or any relative for whom the employee has duty of care, irrespective of whether they reside with employee.

• The following, on Standby Duty, will be added to the collective agreement, article 13.02:

(e) Where the Employer requires a lawyer to be available on standby during off duty, the lawyer shall be compensated at the rate of one-half (1/2) hour leave with pay for each four (4) hour period or part thereof for which the lawyer is required to be on standby duty.
(f) A lawyer required by the Employer to be on standby duty shall be available during his or her period of standby at a known telephone number and be available to return for duty as quickly as possible if called.
(g) In requiring lawyers for standby, the Employer will endeavor to provide for the equitable distribution of standby duties.
(h) No standby compensation leave shall be granted if a lawyer is unable to report for duty when required.
(i) Leave under this Article can be carried over but must be used by the end of the next fiscal year.


• The new provisions will come into force 120 days (November 7, 2018) after the Binding Conciliation decision, dated July 10, 2018.
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Following a survey conducted by the AJC between December 2013 and January 2014, members told us their top priorities in terms of bargaining with TB were:  compensation, job security and sick leave came.

We did however notice that there were some misconceptions as to what is subject to collective bargaining and what is not.  To this end, please refer to the following FAQs to find out what can and cannot be bargained.

Conditions of Employment

Duty to Accomodate

Leave reconciliation Initiative

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*  Updated on February 11th, 2015
** Updated on February 13th, 2015
*** Updated on April 14th, 2016

Performance Management

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*Updated FAQ (January 11 2017)

Phoenix Pay System FAQs

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*Updated on January 13 2017
**Updated on February 17 2017
*** Updated on March 14 2017
****Updated on May 5 2017
**** Updated on July 31st 2017

Staffing

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These frequently asked questions are intended to provide members with some general guidance on staffing processes and complaints, and are not exhaustive. While every effort has been made to ensure the information is accurate and updated regularly, please consult the Federal Public Sector Labour Relations and Employment Board (Board) website to ensure your information on staffing complaints is current.

Q1. Why is an appointment process not advertised in my area?

The Public Service Commission (PSC) Appointment Policy and the Public Service Employment Act (PSEA) (s.29, 48 & 49) gives deputy heads broad discretion in determining appointment processes within their respective departments. Deputy heads must apply a national area of selection, with some exceptions. These exceptions include opportunities of six months or less, seasonal work, certain student appointments, and appointments where an exception is approved by the deputy head.

Q2. Are there requirements for an assessment boardīs composition?

No. There are no provisions in the PSEA that require a deputy head to establish an assessment board, or that a board have a certain composition. However, if an assessment board is not properly constituted, and is unable to make a fair decision as a result, then you may be able to show that there has been an abuse of authority in the selection process. This a question of fact which depends on the specific complaint. You would need to provide evidence to show that the selection process was unfair because of the composition of the assessment board.

Q3. Can I grieve a staffing decision or process?

No. Staffing is not covered under the AJC collective agreement. It is governed by the PSEA and the Public Service Staffing Complaints Regulations. Unsuccessful candidates in an internal advertised appointment process can file a complaint with the Board within 15 calendar days following the date on which you received notice (including public notice) of the appointment, proposed appointment or revocation, as the case may be.  

Q4. What staffing complaints does the Board handle?

The Board handles complaints involving:
• abuse of authority in applying the merit criteria
• abuse of authority in choosing between an advertised and a non-advertised appointment process
• omission in assessing the candidate in the official language of his or her choice.

“Abuse of authority” can include bad faith and personal favouritism. The Board also has the authority to interpret and enforce the Canadian Human Rights Act in dealing with any discriminatory aspects of an appointment. The burden of proof generally rests with the complainant.

Q5. What is considered abuse of authority in conducting an appointment process?

The PSEA gives managers with staffing authority broad discretion to establish necessary qualifications for the position they want to staff, as well as to choose and use assessment methods that will enable them to determine whether a person meets the essential qualifications. The methods must be reasonable, and assess the essential qualifications fairly - a simple error or omission is not considered an abuse of authority.  The onus would be on you to provide evidence that there was an abuse of authority in the appointment process.

Q6. Can bias in a selection process be considered an abuse of authority?

Yes. Members of boards assessing candidates in appointment processes have a duty to conduct their assessments fairly. Bias, including a reasonable apprehension of bias, can constitute an abuse of authority in assessment and appointment decisions made under the PSEA.

The test is whether a reasonably informed bystander could reasonably perceive bias on the part of one or more members of the assessment board. You would need prove that you were treated or assessed differently from other candidates in the assessment process, or that there was a reasonable apprehension of bias. Actions, comments and events that occurred before or during the appointment process could create a reasonable apprehension of bias.  

Q7. What types of staffing complaints can I file with the Board?

The PSEA provides the Board with the authority to consider, assist with resolving, hear and decide complaints involving:
• The deputy headīs decision to lay-off an employee.
The ground for complaint is that the manager abused his or her authority in selecting the complainant for lay-off. (s. 65 (1))
• The decision of a deputy head or the Public Service Commission to revoke an appointment.
The ground for complaint is that the revocation was unreasonable. (s. 74)
• Internal appointments.
The grounds for complaint are abuse of authority in the application of merit and/or in the choice of process (advertised or non-advertised) and denial of the right to be assessed in the official language of the personīs choice. (s. 77 (1))
• Failure of corrective action following a complaint against an internal appointment that was substantiated.
The ground for complaint is that the person was not appointed or proposed for appointment because of an abuse of authority in the implementation of the corrective action. (s. 83)

Q8. How do I make a staffing complaint?

You can consult the Procedural Guide for Staffing Complaints (Guide) for information on how to file a complaint with the Board. Complaints may be filed by individuals. Those seeking support from the AJC may refer to the Policy Governing Union Representation Services and fill out and return an incident form at admin@ajc-ajj.com .

The Procedural Guide includes contact information for filing a complaint. The deadline to file is 15 calendar days following the date on which you received notice (including public notice) of the appointment, proposed appointment or revocation, as the case may be.  

Staffing complaints can be sent to the Board by email or fax. They can also be delivered to the Board in person, by courier or by regular or registered mail. Where your notice of complaint is sent by email or fax, you must ensure that a copy with your signature (or your authorized representativeīs signature) is sent to the Board as soon as possible by mail, fax or email with a scanned attachment.

Q9. What information must be included in a staffing complaint?

You can use a complaint form to make your complaint. Using this form is not required, but you must file a complaint in writing, and it must include the following information:

• your name, telephone number and fax number, and a mailing address or email address that can be disclosed to all parties;
• the name, address, telephone number, fax number and email address of your authorized representative, if any;
• the number or identifier, if any, of the process to which the complaint relates;
• a copy of the notice of lay-off, revocation, appointment or proposed appointment to which the complaint relates;
• the name of the department or agency, branch or sector involved in the process to which the complaint relates;
• a reference to the provision of the PSEA under which the complaint is made;
• a full factual description of the events, circumstances or actions giving rise to the complaint (to the extent known by you). You should provide evidence to support your complaint;
• your signature or the signature of your authorized representative; and,
• the date of the complaint.

Complaints can be made in either official language. At the time of filing your complaint, you must also indicate whether you wish the proceedings and hearing be in English or in French.

Q10. How long do I have to file a complaint?

You must file a complaint within 15 calendar days following the date on which you received notice (including public notice) of the appointment, proposed appointment, or revocation. You can consult the Procedural Guide for Staffing Complaints for information on the Boardīs hours of business for staffing complaints, and how to calculate time periods.

Q11. Can I file a complaint for an external appointment with the Board?

No. The Public Service Commission has the authority to investigate external appointments, concerns related to possible political influence or fraud in a selection process or an internal appointment where appointment authority has not been delegated.

If the Commission is satisfied that the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may revoke (or not make) the appointment, and take any corrective action that it considers appropriate.

Q12.  Can I file a complaint for an acting appointment?

Complaints cannot be made for an acting appointment of less than four months, unless it extends the cumulative period of acting appointments to four months or more. The Public Service Employment Regulations excludes these appointments from the provisions of the PSEA dealing with staffing complaints to Board.

Q13.  Can I withdraw a complaint?

Yes. You can with your complaint by filing a written notice of withdrawal with the Board. Your notice of withdrawal must include:

• your name, telephone number and fax number, and a mailing address or email address that can be disclosed to all parties;
• the name, address, telephone number, fax number and email address of your authorized representative, if any;
• the Boardīs file number for the complaint;
• a statement that you wish to withdraw the complaint;
• the name of the department or agency, branch or sector involved in the process to which the complaint relates;
• your signature or the signature of your authorized representative; and,
• the date of withdrawal.

If you have been represented during the complaint process, it is your responsibility to advise your representative, as soon as possible, that you wish to withdraw your complaint.

Q14. Can I appeal a staffing complaint decision?

Staffing complaint decisions of the Board are final and may not be appealed. They may however, be subject to judicial review by the Federal Court of Appeal on limited grounds. Applications for judicial review must be filed in accordance with the procedures and timeframes set out in the Federal Courts Act and the Federal Courts Rules. As a matter of general practice, the AJC does not usually apply for judicial review of staffing complaint decisions.

1. See Gaudreau v. Deputy Minister of Fisheries and Oceans, 2013 PSST 0023, available online (http://www.fpslreb-crtespf.gc.ca/decisions/summaries/2013-PSST-0023_e.asp ).


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