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. 2008/07)), "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

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

A. Explanatory Notes on Managerial or Confidential Exclusions

PSSRA Provisions		PSLRA Provisions		Former Pay Codes	New Pay Codes (to follow)
		59.(1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that
In section 2, a managerial or confidential position means a position:	(a) confidential to a minister, a deputy head, a chief executive officer or a judge of the Supreme Court of Canada or the Federal Court;	(a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court or the Tax Court of Canada, or a deputy head;	This could include a number of positions including executive assistants, private secretaries, confidential messengers/drivers, lawyers, or other persons who as part of their normal duties personally perform services directly for or have regular contact with the identified statutory officers. Such persons may often be employed in the office of the statutory officer concerned but can be employed elsewhere in a department or agency. There is no requirement that the confidentiality relate to management functions or to any particular function performed by a person in a management position. However, there must exist a confidential relationship per se. Exclusions under this definition will be based on a finding of fact. This finding will be based on the circumstances of each individual case rather than any sweeping generalizations or predetermined criteria. In other words, the confidential relationship must not be casual or fortuitous to comply with this definition. The relationship must be such that it transcends the normal requirements of confidence in the performance of duties. While a statement of duties and organization chart provide information to assist in determining whether the confidential relationship is inherent in the position the person is occupying.	41 An employee occupying a position confidential to the Governor General, a Minister of the Crown, a Judge of the Supreme Court or the Federal Court, the Deputy Head of a department or the Chief Executive Officer of any portion of the Public Service.
	(b) classified in the Executive group; (EX)	(b) the position is classified by the employer as being in the executive group, by whatever name called;	This is consistent with labour relations legislation in other jurisdictions. The law requires that these positions be identified as managerial or confidential positions.	42 An employee occupying a position classified by the employer as being in the executive group, by whatever name called.
	(c) of a legal position in the Department of Justice; (LA)	Deleted		43 An employee occupying a position of a legal officer in the Department of Justice.
	(d) of an employee of the TBS;	Deleted		44 An employee occupying a position in the TBS or Office of the Comptroller General.
	(e) of an occupant providing advice on staff relations, staffing or classification;	(c) the occupant of the position provides advice on labour relations, staffing or classification;	This criterion refers primarily to the Human Resources community but may also include others who are involved in giving advice in the three identified areas. The following factors could be considered when identifying positions under this criterion: the nature of the advice, the frequency of the advice, whether or not the advice is acted upon and the consequences of following or not following the advice, among other possible factors. To "provide advice" implies making and giving recommendations on a course of action, informing, notifying, cautioning and consulting on matters of importance on a regular basis.	45 An employee occupying a position, which requires providing advice on staff relations, staffing or classification.
	(f) confidential to b) or c), only in relation to staff relations matters.	(h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).	The proof of confidentiality will require the examination of various factors including: the ongoing nature of the confidentiality, the frequency of contact, the direct reporting relationship, access to confidential information, the privileged nature and scope of discussions, among other possible factors. Additionally, there could exist a relationship that is out of the ordinary and bears a special quality of confidence. This could involve an element of personal trust, which allows some thinking aloud on labour relations matters. The mere fact that an employee has access to or is privy to confidential information or confidence, on its own, may not make a position confidential. In some cases, the confidentiality of information may be guarded by the oath of office, security clearance and the normal business and professional ethics.	46 An employee occupying a position, which has, in relation to staff relations matters, duties and responsibilities confidential to a position described under codes 42 and 43.
	(g) identified as such a position pursuant to section 5.1 or 5.2, the identification of which has not been terminated pursuant to section 5.3			47 An employee occupying a position formally identified as a "managerial or confidential" position for which the re-identification under the revised Act has not been completed.
In section 5.1(1), a managerial or confidential position is a position in which the occupant:	1. has substantial duties and responsibilities in the formulation and determination of policies or programs;	(d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;	This definition includes persons who perform work on government policies or programs. These persons would be involved in the formulation or determination of a policy or a program. Duties and responsibilities should be of real importance, not illusory. The meaning of the word "substantial" means something real or true more than nominal. The word "substantial" does not have a fixed meaning in all contexts. It will vary from case to case depending on specific facts and circumstances.	21 An employee occupying a position, which has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada.
	(b) has substantial management duties, responsibilities and authority over employees, or is a step officer in the grievance procedure;	(e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2;	This criterion implies that a person has direct control over the work of others in the general course of his duties. A distinction must be made between supervisory and managerial duties. Exclusion under this criterion requires more than merely supervisory responsibilities. Factors such as the extent of delegated authorities in human resources, dollar management and program administration as well as the degree to which the manager exercises these authorities, may be considered. Factors to consider may include the magnitude of the management function, the number of employees managed, the measure of control over employees, the working environment, the reporting relationship and the work location. One who has "substantial management duties" should have the ability to act autonomously and make independent decisions. The law retains the employer's right to exclude persons who occupy positions identified as step officers in the grievance process. The identification of employees who deal with grievances must include the delegation of the necessary authority. Management should ensure that this information is communicated directly to each grievance officer in writing. Identification under the grievance portion of this clause should include the following supporting documentation: a copy of the official grievance procedure chart; a copy of a letter of delegation of authority to deal formally with grievance on behalf of the employer; a position description; and an organization chart.	22 An employee occupying a position, which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance process provided for by the Act.
	(c) is directly involved in the collective bargaining process on behalf of the employer	(f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;	Three conditions should be met to satisfy the criteria: Duties must be directly involved in…; Duties must relate to the process of collective bargaining; and Such involvement must be on behalf of the employer. The process of collective bargaining in the Public Service encompasses more than just the face-to-face negotiations of terms and conditions of employment at the bargaining table. However, in all cases, the onus will rest with the employer to prove that a person is directly involved in the process of collective bargaining, which goes far beyond just a "token and perfunctory" contribution.	23 An employee occupying a position, which requires direct involvement in the process of collective bargaining on behalf of the employer.
	(d) where in the opinion of the PSLRB, the incumbent should not be included in a bargaining unit for reasons of conflict of interest or by reason of his duties and responsibilities to the employer;	(g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person's duties and responsibilities to the employer; or	This criterion bestows a wide discretion on the PSLRB. The employer must demonstrate that an individual's duties and responsibilities to the employer collide with the individual's interest as a member of a bargaining unit. Factors to bear in mind could include the following: an employee's involvement in management issues; to what extent the exercise of delegated authority might create a conflict of interest; the community of interest with management; the scope of an employee's activities; the sensitivity of information dealt with; the level and range of persons with whom an employee has regular contacts and discussions; the impact of an employee's decisions on others; and the direct effect on the employment relationship or the terms and conditions of employment of other employees.	24 An employee occupying a position, which has duties and responsibilities not otherwise described under code 21, 22, or 23 and who in the opinion of the Board should not be included in a bargaining unit for reasons of conflict of interest or by reason of the employee's duties and responsibilities to the employer.
	(e) is confidential to (a), (b), or (c), in matters related to staff relations	(h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).	In order to exclude the occupant of an alleged confidential position, the employer must first establish that there is a relationship to a position the occupant of which: is classified by the employer as being in the Executive Group, by whatever name called (b); provides advice on labour relations, staffing or classification (c) has substantial duties and responsibilities in the formulation and determination of policy or program (d); or is directly involved in the process of collective bargaining (f). Once this is established the employer has an additional onus to show by evidence that a confidential relationship exists between these two persons, and that it is based on "labour relations matters." The confidentiality could be a requirement of the position. It must not be just a matter of style, preferential treatment or opinion of a supervisor. The duties of a position will be viewed in the context of terms and conditions of employment and will go beyond the mere knowledge of labour relations policies and/or procedures. This could include people endowed with judgemental ability that is distinct from routine or clerical in nature, and perform on an ongoing basis a mix of duties, including: input to negotiations, work force adjustment, grievance administration, collective agreement interpretation, discipline, adjudication, safety or security designations, strike contingency planning, termination of employment, health and safety, NJC policies, compensation, among other possible duties.	25 An employee occupying a position, which has, in relation to staff relations matters, duties and responsibilities confidential to a position described under codes 21, 22 or 23.

B. Managerial or Confidential Exclusions Process Flowchart

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Managerial or Confidential Exclusions Process Flowchart

© His Majesty the King in right of Canada, represented by the President of the Treasury Board, 2017,
ISBN: 978-0-660-09825-8