Rescinded - Certification - Chapter 1

The following is a description of the process for the certification of an employee organization by the PSSRB.
Date modified: 1994-10-07

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1. Introduction

The following is a description of the process for the certification of an employee organization by the PSSRB.

2. Legislative base

The Public Service Staff Relations Act confers upon the Public Service Staff Relations Board (PSSRB) the power to determine the appropriateness of a bargaining unit and to certify an employee organization as bargaining agent to represent that bargaining unit.

3. Application

This process applies to the departments and agencies listed under Schedule 1, Part 1, of the Public Service Staff Relations Act and for which Treasury Board is identified as the employer.

4. Terminology

The following terms from the Public Service Staff Relations Act should be understood with respect to the certification process (see Appendix A for a full explanation of these terms):

  • bargaining agent
  • bargaining unit
  • board (PSSRB)
  • employee
  • employee organization
  • employer
  • managerial or confidential positions

5. Prohibitions

No person who occupies a managerial or confidential position can participate in or interfere with the formation or administration of an employee organization.

At the time of an application for certification, departments will be expected to provide Treasury Board with information related to employees in the bargaining unit concerned. Three lists should be produced:

  1. a list of employees who are in the bargaining unit;
  2. a list of employees who occupy positions which in the opinion of the employer should be excluded (whether proposed or not); and
  3. a list of those persons who are occupying excluded positions.

6. Process

The Public Service Staff Relations Act provides any employee organization the opportunity for applying to the Public Service Staff Relations Board to represent a group of two or more employees.

7. Review of application

When an employee organization files an application with the Public Service Staff Relations Board, it must identify the group of employees it wishes to represent and include evidence that it represents the majority of the employees in the proposed bargaining unit.

The Public Service Staff Relations Board will ask the employer to comment on the application as well as the composition and the appropriateness of the bargaining unit.

The employer is normally required to post notices where they are most likely to come to the attention of the employees who may be affected by the application.

8. Treasury Board's responsibility

Treasury Board as the employer is required to file with the Public Service Staff Relations Board three lists of employees:

  1. a list of employees who were in the bargaining unit as of the date the application for certification was filed;
  2. a list of employees who occupy positions which in the opinion of the employer should be proposed for exclusion; and
  3. a list of persons who presently occupy managerial or confidential positions.

User departments and agencies will have approximately six weeks to gather this information and provide it to Treasury Board, which will forward the lists to the Public Service Staff Relations Board.

9. Role of the Public Service Staff Relations Board

Once the lists are received from the employer, the Public Service Staff Relations Board will normally conduct a hearing to determine whether or not to proceed with the processing of the application for certification.

Matters that are often presented at a hearing include complaints of interference, allegations of unfair labour practices, the determination of the status of individuals, representations by interveners or employee organizations and the views of other interested parties.

10. Representation vote

Following the hearing, the Public Service Staff Relations Board will determine whether to proceed with the application or dismiss it.

If the Public Service Staff Relations Board decides to proceed, it will normally conduct a representation vote by secret ballot.

The employer, in co-operation with departments, will have to provide an updated list of employees who are in the bargaining unit. This list will determine who is eligible to vote.

The Public Service Staff Relations Board will determine the voting procedures, conduct the vote and then issue a decision regarding whether or not the applicant will be certified.

11. Effect of certification

The Public Service Staff Relations Board will issue a certificate which empowers the newly certified bargaining agent with the exclusive right to bargain collectively on behalf of employees in the bargaining unit and to represent an employee in the presentation or reference to adjudication of a grievance.

The bargaining agent must also specify a method of dispute resolution, either referral to arbitration or referral to a conciliation board.

12. Revocation of certification

A bargaining agent certification may be revoked when:

  1. a bargaining agent is displaced by another;
  2. a bargaining agent abandons its certification;
  3. on an application by the employer or an employee that a bargaining agent has ceased to act as bargaining agent;
  4. it can be proven that for activities carried on by or on behalf of any political party, money was received, paid or required as a condition of membership to that employee organization;
  5. it can be proven that an employee organization has discriminated based on sex, colour, race, religion or national origin;
  6. the certification has been obtained as a result of fraudulent activities.

When the Public Service Staff Relations Board revokes the certification of a bargaining agent, the collective agreement or arbitral award ceases to exist unless the revocation is the result of a displacement by another employee organization.

In a case of displacement, the succeeding union may choose to continue with the existing agreement or arbitral award or may terminate the agreement or award by filing notice to bargain collectively within one month following certification.

13. References

Public Service Staff Relations Act.

Public Service Staff Relations Board Regulations and rules of Procedure.

Public Service Terms and Conditions of Employment.

14. Enquiries

Enquiries should be directed to Departmental Human Resources Officers, who in turn may direct enquiries to:

Employer Representation Group Staff Relations Division
Human Resources Policy Branch
Treasury Board Secretariat

Appendix A

Definitions

Act (loi)
means the Public Service Staff Relations Act (PSSRA).
Arbitration (arbitrage)
is one of the two methods of dispute resolution under the PSSRA. A decision of an arbitration board is binding on the parties.
Bargaining agent (agent négociateur)
means an employee organization that has been certified by the Board as the bargaining agent for the employees in the bargaining unit and the certification of which has not been revoked.
Bargaining unit (unité de négociation)
means a group of two or more employees that is determined, in accordance with this Act, to constitute a unit of employees appropriate for collective bargaining.
Board (commission)
means the Public Service Staff Relations Board (PSSRB).
Collective agreement (convention collective)
means an agreement in writing entered into under this Act between the employer and a bargaining agent, containing provisions respecting terms and conditions of employment and related matters.
Conciliation (conciliation)
is one of the two methods of dispute resolution under the PSSRA. A conciliation report is not binding on the parties.
Designated position (poste désigné)
means a position that has safety or security duties related to the public.
Dispute (différend)
means a dispute or difference arising in connection with the conclusion, renewal or revision of a collective agreement.
Employee (fonctionnaire)

means a person employed in the Public Service, other than

  1. a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act,
  2. a person locally engaged outside Canada,
  3. a person whose compensation for the performance of the regular duties of the position or office of the person consists of fees of office, or is related to the revenue of the office in which the person is employed,
  4. a person not ordinarily required to work more than one-third of the normal period for persons doing similar work,
  5. a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of a member thereof,
  6. a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature,
  7. a person employed on a casual basis,
  8. a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more,
  9. a person employed by or under the Board, or
  10. a person who occupies a managerial or confidential position.
Employer (employeur)

means Her Majesty in right of Canada as represented by:

  1. in the case of any portion of the Public Service of Canada specified in Part 1 of Schedule 1, the Treasury Board, and
  2. in the case of any portion of the Public Service of Canada specified in Part 11 of Schedule 1, the separate employer concerned.
Employee organization (organisation syndicale)
means any organization of employees whose purposes include the regulation of relations between the employer and its employees for the purposes of this Act, and includes, unless the context otherwise requires, a council of employee organizations.
Managerial or Confidential Position (poste de direction ou de confiance)

means a position:

  1. confidential to the Governor General, a minister of the Crown, a judge of the Supreme Court of Canada or the Federal Court, the deputy head of a department or the chief executive officer of any other portion of the Public Service;
  2. classified by the employer as being in the executive group, by whatever name called;
  3. of a legal officer in the Department of Justice;
  4. of an employee in the Treasury Board;
  5. the occupant of which provides advice on staff relations, staffing or classification;
  6. the occupant of which has, in relation to staff relations matters, duties and responsibilities confidential to a position described in paragraph (b) or (c).

and under 5.1(1) of the Act,

Where, in connection with the application for certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

  1. a position the occupant of which has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;
  2. a position the occupant of 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 presented in accordance with the grievance process provided for by this Act;
  3. a position the occupant of which is directly involved in the process of collective bargaining on behalf of the employer;
  4. a position the occupant of which has duties and responsibilities not otherwise described in this subsection 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 person's duties and responsibilities to the employer;
  5. a position the occupant of which has, in staff relations matters, duties and responsibilities confidential to a position described in paragraph (a), (b) or (c).
Public (public)
refers to the general population and, depending on the government programs, in many cases, includes employees.
Safety or security (sûreté ou sécurité)
where there are reasonable grounds for accepting the probability, or even perhaps only a possibility, that human life or public safety or security would suffer. However, the Act does not contemplate duties that would serve only to prevent inconvenience to the public.
Strike (grève)
includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slow-down of work or other concerted activity on the part of employees that is designed to restrict or limit output.
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