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Letter of Understanding #21 Joint Employer-Union Exclusions Review

​Master Agreement Between the Government of the Province of Alberta and the Alberta Union of Provincial Employees​​​


​​LETTER OF UNDERSTANDING # 21
JOINT EMPLOYER-UNION EXCLUSIONS REVIEW

​​

BETWEEN:​​​​​

THE CROWN IN RIGHT OF ALBERTA
(The Employer)

- and -

THE ALBERTA UNION OF PROVINCIAL EMPLOYEES
(The Union)

​Whereas the Parties have agreed to conduct a joint Employer-Union initiative to review the appropriateness of positions' exclusion from the scope of the bargaining unit;​​​

​The parties agree as follows:

​1.​

​A joint Employer-Union committee will be established for the purposes of determining the appropriateness of positions' exclusion from the scope of the bargaining unit. The committee will be composed of up to three (3) representatives from each party.

​2.

​The full scope of review will be as follows:


 

​(a)

​Within four (4) weeks of ratification of the Collective Agreement, the Employer will provide the committee a list of all currently encumbered non­bargaining unit positions, up to and including the Manager classification level (i.e. Manager Pay Zone 1, Manager Pay Zone 2), for review.


​(b)

Upon completion of the review of positions included in Clause 2(a), the Employer will provide the committee a list of all currently encumbered non-bargaining unit positions at the Senior Manager 1 level for review.


​(c)

​Upon completion of the review of encumbered non-bargaining unit positions, the Employer will provide the committee a list of all currently unencumbered non­-bargaining unit positions up to and including the Senior Manager classification level, which shall include Manager Pay Zone 1, Manager Pay Zone 2, and Senior Manager Pay Zone 1, for review. Should the Employer choose to fill an unencumbered non-bargaining unit position during the encumbered position reviews it will be added to the appropriate encumbered position list.

​3.

​Prior to commencing the review of positions, the committee will determine its terms of reference, including the criteria that will be used for determination of inclusion/ exclusion from the bargaining unit. This criterion will be based upon advice from representatives of the Parties on jurisprudence related to the managerial and confidential labour relations capacity exclusions within Public Service Employee Relations Act (PSERA).

​4.

​The committee will discuss the non-bargaining unit positions, reviewing currently available position information, including but not limited to organizational charts and job descriptions or profiles. If further job information is required or needs to be updated, the Employer will seek such information and update the job descriptions or profiles for the identified positions for review by the committee. If the preceding job information is insufficient to assess the position, the Employer will provide the name of the incumbent and where the committee deems it appropriate, will arrange a presentation of the job duties. These reviews will be position-based, rather than incumbent-based.

​5.

​The parties acknowledge the length of time required for the review is dependent upon the number of positions included. The committee shall meet at least four (4) days per month at an appropriate meeting frequency until all identified positions have been reviewed and a determination rendered. 

​6.

​Positions that are agreed to by the committee as not meeting the managerial and confidential labour relations capacity exclusions within PSERA sections 12(1)(a) through (e) will be flagged for inclusion in the Bargaining Unit, provided they are not excluded under other PSERA exclusion criteria. Normal Employer classification processes will apply; however, individuals will be transitioned according to Clauses 12 - 13, below. The Employer will provide the Union the names of transitioned individuals once they move into the Bargaining Unit.

​7.

Positions that are excluded on the basis of being a named classification in section 12(1)(f) of PSERA will also be reviewed by the committee in relation to the managerial and confidential labour relations capacity exclusion criteria in PSERA sections 12(1)(a) through (e). Positions that are identified as not meeting the exclusion criteria in sections 12(1)(a) through (e) will be flagged for inclusion in the bargaining unit, and will be transitioned following necessary PSERA amendments coming into force. Normal Employer classification processes will apply; however, individuals will be transitioned according to Clauses 12-13, below. The Employer will provide the Union the names of transitioned individuals once they move into the bargaining unit.

​​8.

For any positions that will be moving into the bargaining unit by agreement between the Parties, the 12 month notice period identified in Clause 14 below will commence on the date of such agreement.

​9.

​In the event that the Committee, from time to time, is unable to reach a consensus with respect to the determination of the exclusion/ inclusion of any specific persons or encumbered positions, the dispute will be submitted for determination to the Alberta Labour Relations Board (ALRB) for the streamlined process more fully described below (the "Streamlined ALRB Hearings"). Either Party may initiate the referral to the Streamlined ALRB Hearings at any time by forwarding a summary application to the ALRB. ​

Within fourteen (14) days from the date that such a dispute has been crystalized, the Employer will provide the Union the names of persons attached to positions in dispute.  ​

​10.

​The Streamlined ALRB Hearings will be chaired by a Chair or Vice Chair of the Board, normally acting alone as determined by the Chair of the Board.​

​11.

​The Streamlined ALRB Hearing process will consist of:​


​(a)

​Evidence submitted to the Chair or Vice Chair will consist of an organization chart, the position description or profile agreed to by the Committee, and any Agreed Statement of Facts and other exhibits as agreed to by the Parties. In the event that the Committee is unable to agree on a position description or other evidence as noted above, the Parties may produce evidence in the form of an Affidavit from the incumbent or a representative of the Employer with direct knowledge of the Employee's duties and responsibilities.​


​(b)

​If the Chair or Vice Chair determines that the submitted evidence is not sufficient, then they may, at their discretion, submit to the Parties a list of questions that they consider relevant to their determination. The Parties will answer such questions in writing, either jointly or separately. Either Party may, at their discretion, request that a hearing be held on expedited basis in order to examine or cross-examine the incumbent or a representative of the Employer with direct knowledge of the Employee's duties and responsibilities.​


​(c)

A Letter Decision is to be provided by the ALRB.

​12.

​After the twelve (12) month notice period in Clause 14, an Employee that is to be transitioned into the bargaining unit and assigned to an existing bargaining unit classification and pay grade with a current salary:​​


​(a)

exceeding the maximum salary of the new pay grade will be held over-range while the Employee is in this position. 


​(b)

​below the maximum salary of the new pay grade will be maintained between pay periods until the Employee's next salary increase. The new salary will then be at a pay period in the grade that ensures a one-increment increase. The maximum salary of the pay grade will not be exceeded.​


​(c)

​below the minimum salary of the new pay grade will be moved to the minimum of the pay grade of the assigned classification.

​13.

​Where there is no appropriate existing classification and pay grade for an Employee that is transitioned into the bargaining unit, the Employee will be maintained within their current pay range until a new classification and pay grade has been negotiated during the subsequent round of collective bargaining. Should the Parties not agree to the new classifications and pay grades during the collective bargaining process the matter will be referred to binding arbitration at the conclusion of bargaining.​​

​14.

​Where there has been a determination by the committee review or ALRB that a person shall be included in the bargaining unit, the person shall be included in the bargaining unit twelve (12) months from the date of the determination. Any exceptions to the twelve (12) month notice period will be agreed by the Parties on a case by case basis.​

Following this determination, the Employer will provide written notice to the Employee who will be moved into the bargaining unit. This written notice shall include contact information for the Union, suggesting that the Employee may connect with the Union for support through any transitional matters related to moving into the bargaining unit.​

​15.

​The process established by this Letter of Understanding is the sole mechanism to resolve disputes related to the determination of inclusion/exclusion of positions/persons under the Joint Employer-Union Exclusions Review.​

​16.

​Subject to Clause 15, nothing in this Letter of Understanding amends, abrogates or otherwise modifies any part of Article 29 of the Collective Agreement. Further, any difference alleging a violation of an obligation in this Letter of Understanding may be filed as a Policy Grievance pursuant to Article 29.​

​17.

​This letter of understanding will remain in effect as provided in Article 47 of the Collective Agreement.​

​​Dated this 27th day of November, 2018.

 

ORIGINAL SIGNED BY

 

______________________________                             ______________________________

LANA LOUGHEED                                                 GUY SMITH

Public Service Commissioner                             President, Alberta Union of Provincial Employees​


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