Joint panels on telework in public service raise more questions than answers

Labour lawyers say joint union-employer panels created to handle remote work complaints don't have a clear solution for when a public servant is unhappy with their arrangement.

A letter of agreement on telework, negotiated between the government and the Public Service Alliance of Canada (PSAC) in bargaining that recently ended with a tentative agreement, sets out that the government will review telework on a case-by-case basis.

In a statement Friday the Treasury Board said the panels can make recommendations to management about how to resolve disputes. Management will make the final call, and the Treasury Board did not answer questions about what happens if someone isn't happy with the joint panel's recommendations.

The letter exists outside of the scope of the collective agreement, and after its deal with PSAC was reached, Treasury Board President Mona Fortier said the panel's recommendations can't be grieved. PSAC, meanwhile, said the recommendations will be made in writing, allowing it to hold management accountable for them.

Patrick Groom, a labour lawyer with the Toronto firm McMillan, said he's not convinced the panel decisions will be immune to arbitration — a process that requires arbitrators who charge thousands of dollars per day, he said.

Groom calls the panel, in essence, a parallel grievance process.

"As much as the government has been trying to say that this is outside the collective agreement ... I don't see [anything stopping] that grievance [from] being referred to labour arbitration and decided by an arbitrator, rather than by management," Groom told CBC Radio's Ottawa Morning on Friday.

Malini Vijaykumar, a labour lawyer with the Ottawa firm Nelligan O'Brien Payne, said under the Federal Public Sector Labour Relations Act, a complaint that doesn't fall under a collective agreement may not be able to go to arbitration.

She also said it's an issue that still needs to be clarified.

Vijaykumar called the letter a "potential" new source of rights for employees. Before it, workers didn't have many rights when it came to remote work, including where to go if they weren't happy with their arrangements.

If someone didn't like their telework arrangement and didn't have a specific accommodation, they'd have to grieve "that it was an abuse of management rights. And that would be, in a lot of cases, quite difficult to prove," Vijaykumar said.

People upset with their arrangements don't have to claim an abuse of management rights to send it up the chain, she said.

As many employees continue to push for remote work, Groom said he wouldn't be surprised if other unions try to work in similar letters of understanding on telework. 

Vijaykumar agreed. "I certainly think it's going to have ripple effects across the public [sector] and also the private sector as well," she said.

LISTEN: Vijaykumar and Groom discuss the letter of agreement on Ottawa Morning May 12: