OGGO Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Wednesday, March 26, 2003

¹

1530

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.))

Mr. John Fryer (Former Chair of the Advisory Committee on Labour-Management Relations in the Federal Public Service, As Individual)

¹

1535

¹

1540

¹

1545

The Chair

Mr. Renaud Paquet (Professor, Industrial Relations, "Université du Québec en Outaouais" (UQO), As Individual)

¹

1550

¹

1555

The Chair

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance)

The Chair

Mr. Paul Forseth

º

1600

Mr. John Fryer

Mr. Paul Forseth

The Chair

Mr. Renaud Paquet

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

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1605

Mr. John Fryer

Mr. Renaud Paquet

Mr. Robert Lanctôt

Mr. Renaud Paquet

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1610

Mr. Robert Lanctôt

The Chair

Prof. Renaud Paquet

The Chair

Mr. John Fryer

The Chair

Mr. Dick Proctor (Palliser, NDP)

Mr. John Fryer

Mr. Dick Proctor

Mr. John Fryer

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1615

Mr. Dick Proctor

Mr. John Fryer

Prof. Renaud Paquet

M. Dick Proctor

The Chair

Mr. Roy Cullen (Etobicoke North, Lib.)

Mr. John Fryer

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1620

Mr. Roy Cullen

Mr. John Fryer

Mr. Roy Cullen

Mr. John Fryer

Mr. Roy Cullen

Mr. John Fryer

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1625

The Chair

Mr. Renaud Paquet

The Chair

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CANADA

Standing Committee on Government Operations and Estimates

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NUMBER 026

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, March 26, 2003

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Mr. Reg Alcock (Winnipeg South, Lib.)): Welcome to meeting 26.

    Just for the edification of our witnesses, I'm going to move relatively expeditiously, simply because we want to hear as much of their testimony and give members an opportunity to have as many questions as possible, and we are facing an impending vote.

    Given that the House is just finishing question period and has not moved to routine proceedings, and given that it's a half-hour bell, we should have all of our allotted time. However, the more efficient we are in our conversations, the more likely we are to get through the substantive bits.

    We will have the bell at some point. Just as information for members, the clerk will keep a watch on the time, and I'll adjourn the meeting with sufficient time for us to get from here to the House, just.

    We have before us John Fryer, who is the former chair of the advisory committee, and Renaud Paquet, professor of industrial relations from the Université du Québec en Outaouais.

    Mr. Fryer, are you going to begin?

    Mr. John Fryer (Former Chair of the Advisory Committee on Labour-Management Relations in the Federal Public Service, As Individual):

    First of all, thank you for the opportunity to appear before you today to hopefully assist you in your consideration of Bill C-25, the Public Service Modernization Act.

    My name is John Fryer, and my entire career, now unfortunately spreading over 42 years, has been spent studying, practising, participating, and finally, teaching about the subject of public sector labour–management relations. Specifically, from 1969 to 1990, I was the general secretary and chief negotiator for the British Columbia Government Employees' Union before I became the elected president of the National Union of Provincial Government Employees, in Ottawa. From 1990 to 1997, as well as currently, I've been a professor at the University of Victoria's School of Public Administration. And in 1998, the Government of British Columbia recruited me as an assistant deputy minister to manage their Crown Agencies Secretariat.

    While in this position, I was asked by Peter Harder, a former secretary at Treasury Board, to come to Ottawa for two years to chair the Advisory Committee on Labour–Management Relations. The specific mandate of the committee was to study the state of labour–management relations in the federal public service and to make recommendations on how they might be improved.

    Nine additional members were recruited for the committee, from management, labour, and academia. Together with a small but excellent staff, we produced two reports. The first was one with the self-explanatory title Identifying the Issues, and the second was published in June 2001 and was entitled Working Together in the Public Interest.

    Our second report contains 33 unanimous recommendations for improving labour–management relations in the federal public service. Bill C-25 reflects, in part, the work of our committee. Part 1 of the proposed PSMA contains at least 12 of our recommendations in whole or in part. And generally, my committee members believe the flavour of our report underlies much in the proposed act. This is so because our overarching recommendation was to—and I quote from the report—

propose a new framework based on a collaborative approach tosolving workplace problems.

...To help bring about this basic change from an adversarial to a more joint problem solvingapproach requires the rebuilding of trust and a willingness on both sides to exploredifferent approaches—in short what is often referred to as “a cultural change”.

    Turning to the advisory committee mandate in terms of the proposed legislation before you, the mandate of my committee was essentially limited to matters covered by Part 1 of Bill C-25, although both the members of my committee and I have individual views on other sections of the proposed act. Therefore, in my submission to you this afternoon, I plan to limit my comments almost exclusively to part 1 of Bill C-25, an act respecting labour relations in the public service.

    Let me begin by congratulating the President of the Treasury Board, Madame Robillard, for submitting for consideration a bill that clearly goes a long way in providing a new labour–management framework for the public service. You will no doubt hear from some witnesses that it does not go far enough. Nevertheless, this act does represent the first significant change in the legal framework governing the labour–management relationship since the passage of the original Public Service Staff Relations Act in 1967.

    Following the passage of the PSSRA in 1967, many provinces subsequently changed their relationships with their own employees from ones of unilateralism to ones involving collective bargaining. Now in 2003, the proposed Public Service Labour Relations Act seeks to move the relationship forward to a more cooperative problem-solving one that clearly acknowledges the importance of the public interest in public sector labour–management relations. We can only hope that once again the provinces will carefully study this federal initiative.

    As for specific amendments, to assist your committee in its important deliberations, it's my intention to make specific suggestions for specific amendments, and number one is the scope of bargaining and co-development. Generally speaking, the scope of bargaining—that is, the number of issues subject to negotiation—is more restricted in the public service than in private-sector collective bargaining. Just as an example, out of the ten provinces and the federal government, pensions are negotiable in only one single jurisdiction, and that's the province of Saskatchewan, which has no public-sector legislation. It hasn't had any since the election of the CCF government in 1944, when they passed the same trade union act for public- as well as private-sector workers. That model has never been copied by any other jurisdiction in Canada to this date. And I just use pensions as an example.

¹  (1535)  

    Public-sector unions complain about this with regularity—that is to say, they can't bargain many issues—and public-sector employers tend to resist attempts to put new issues on the table. My committee thus developed the concept of co-development, whereby issues not traditionally bargained could, for the first time, be the subject of joint labour–management discussions and resolutions. In particular, we said the topics of staffing, pensions, and classification could all be subject to co-development. We also said there should be provisions for dispute resolution if these co-development talks reach an impasse. Bill C-25 contains no such recourse. Therefore, my recommendation would specifically be that division 3 be amended by adding a section after proposed section 11 that would read as follows:

Disputes over co-development issues shall be resolved through the use of the National Joint Council's dispute resolution process, whether or not such disputes arise in the National Joint Council forum.

    I would add that this is merely one of the recommendations from our report. It is also our view that the section of the bill that deals with consultation committees and co-development would be significantly improved by the addition of one of our committee's key recommendations. Recommendation 32 in our second report was designed to greatly improve participation by employees in the activities of their bargaining agents. Such enhanced participation, we believe, can only improve the quality and outcomes of the consultation and co-development process. So my second recommendation is specifically that in division 3, proposed section 8 be amended by adding the following sentence:

To facilitate this process, union meetings shall be permitted on site during regular working hours.

    The next item I want to deal with is called choice of procedures. Under the current Public Service Staff Relations Act, federal government unions may choose between binding arbitration and conciliation or strike as a means of resolving bargaining impasses, but they must make this choice at the beginning of negotiations. In our second report, my committee wrote as follows:

The major problem with the current public service dispute resolution method...is that it tends to hinder the process of voluntary settlement, particularly in cases where the union has opted for arbitration. In such cases, there is a risk that neither side will bargain properly, in the belief that there is little need to make hard choices when the arbitrator will be making the final decision in any case.

Therefore, we recommend that in division 6, proposed subsection 103(3), be deleted as presently worded and be replaced with language requiring the bargaining unit to notify the Public Service Staff Relations Board of its choice of dispute resolution procedure only in the event that a bargaining impasse occurs.

    On two-tier bargaining, in our report we suggested a revision in the Public Service Staff Relations Act to “enable collective bargaining at the departmental and agency level, to set the detailed terms and conditions of employment for subjects negotiated in broad terms at the service-wide level.” Upon reading Bill C-25, it is permissive in this regard only if both parties jointly elect to do so. I'm making a recommendation to you that in division 7, proposed section 110 be amended to permit two-tier bargaining in the event that either the bargaining agent or the employer requests it.

    Turning to compensation research, our report recommended “the establishment of a Compensation Research Bureau to provide reliable pay and benefit data to both parties in collective bargaining.” That was our recommendation 23, and we further recommended “that the National Joint Council be the forum for the joint management of the newly established Compensation Research Bureau.”

    Bill C-25, at division 4, proposed subsection 53(2), suggests an advisory board of a chairperson and no more than eleven other members appointed by the minister. In proposed subsection 53(4), it also declares that appointments “are to be made such that there is an equal number of members representative of the employer and of employees.” However, if the minister chooses to appoint only a single employer representative, then union representation would be similarly restricted.

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    Consequently, we would recommend an amendment so that this section of the bill will be more reflective of our committee's belief that parties should have joint ownership of the new compensation research bureau as follows: Recommendation 5 is that you amend proposed subsection 53(4) of the proposed PSLRA to read:

Appointments to the advisory board are to be made such that there is an equal number of members representative of the employer and of employees and such appointments form a majority of the advisory board.

And “and such appointments form a majority of the advisory board” is the new language.

    On public interest disputes, probably the most important recommendations of my advisory committee were the three that recommended the establishment of a public interest dispute resolution commission as follows—and with your indulgence, I'm going to briefly quote from our report because I want to give you the rationale for why we said it:

We recommend that the Public Service Staff Relations Act be amended to provide for a tripartite representative Public Interest Dispute Resolution Commission, to represent the public interest and to assist the parties in resolving interest disputes. The Public Interest Dispute Resolution Commission should have the following powers:

•fact-finding;

•referral back to the negotiating table;

•mediation;

•issuance of a preliminary report commenting on the reasonableness of the parties’ positions;

•issuance of a report outlining the terms of a settlement that could be adopted by or imposed on the parties;

•imposition of a collective agreement at the request of a union under specified circumstances.

    Further,

we recommend that the Public Interest Dispute Resolution Commission be a representative body. It would consist of at least nine part-time members and a full-time Chair, all to be appointed by the Governor-in-Council. An equal number of union and management representatives (at least three of each) would be drawn from lists submitted by the parties. The remaining members would be third party neutrals representing the public interest.

    Further,

we recommend that the Public Interest Dispute Resolution Commission report directly to Parliament.

    Members of this committee can see for themselves that in Bill C-25, the notion of a public interest commission in fact becomes little more than another form of conciliation. We had frankly hoped for something more. Particularly, we believe such a commission, because of the importance of its work, would be an independent agency reporting directly to Parliament, whose members hold the ultimate responsibility of ensuring that the public interest is properly considered in labour–management relations. I therefore recommend that an independent public interest disputes commission be established along the lines recommended by the report of the advisory committee.

    Finally, I have a comment on one piece of the bill that doesn't specifically deal with labour management relations, but instead deals with the proposed Canada School of Public Service. It was good to see in Bill C-25 the proposal to create a Canada School of Public Service. I would like to make two small points regarding it.

    First, my committee believes very strongly that the curriculum should contain a series of comprehensive units for joint union–management training in labour relations, collective bargaining, and conflict resolution. It is also my view that the board of governors of the school should have guaranteed representation by employee representatives. Consequently, recommendation 7 is to amend clause 27, and proposed section 8(1), by adding the words “no less than three members of the board of governors shall be nominated by the bargaining agents representing public service employees.”

    That's my initial submission to you. I thank you for your interest, and I'll do my best to answer any questions that members may have.

    Thank you, Mr. Chairman.

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    The Chair: Thank you very much, Mr. Fryer.

[Translation]

    Professor Paquet, please proceed.

    Mr. Renaud Paquet (Professor, Industrial Relations, "Université du Québec en Outaouais" (UQO), As Individual):

    Thank you very much.

    My name is Renaud Paquet, and I teach Industrial Relations at the Université du Québec en Outaouais. Thank you for this opportunity to make a few comments regarding Bill C-25.

    My area of specialization is labour relations and public sector collective bargaining. I myself have worked in the public sector in the past and was also a member of the Fryer Commission--the same task force as John. In fact, each of us discovered that we would both be making a presentation here today when we ran into each other 20 minutes ago. So, we are going to try and coordinate what we have to say.

    I am here to present my views as a researcher, rather than part of the Fryer report, even though what I will be suggesting is completely consistent with the recommendations of the Fryer report.

    I wish to address three specific points: first, a general introductory comment on the reform itself; second, classification; and third, staffing.

    Many of the clauses proposed in the legislation certainly go a long way towards improving labour relations and human resources management in the federal public sector, particularly the additional focus on consultations, the fact that there will be a forum for research to be conducted on compensation, so that more enlightened positions can be developed in that respect, as well as improved management and conflict resolution processes.

    However, the Bill does have a number of significant weaknesses, in my view, and I would like to focus on two of those this afternoon. But before I do that, I want to remind Committee members of what the preamble of the Bill says, and which I fully agree with, which is that the public service labour-management regime is evolving in a context where protection of the public interest is important and where effective labour management relations represent a cornerstone of good human resource management; it also says that collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment; and that the Government of Canada recognizes that bargaining agents represent the interests of employees.

    These are important and commendable principles, but I also believe that in some respects, they are not being put into practice, since there is a refusal to share power or management rights, at least with respect to staffing and classification issues.

    The current regime under the Public Service Staff Relations Act and Public Service Employment Act, combined with the provisions of the Financial Administration Act, confers powers and rights to employees and employee organizations. When the collective bargaining regime was introduced in 1967, the legislator, as my colleague John Fryer pointed out earlier, placed considerable limits on collective bargaining in the public sector and decided not to go as far as had previously been the case for the private sector, as early as 1944. At least as regards the right to strike, there may be some public interest reasons for such an approach. But as far as the scope of what can be negotiated is concerned, I do not believe such limits are justified. Just as they were not justified back in 1967, they are no more justifiable now, in 2003.

    In that regard, the new legislation goes no further than the previous one. The employer has accepted the idea that there being some consultation, but has ultimately rejected any possibility of sharing management rights. In my humble view, out of a sense of fairness and equity, when drafting legislation, the government should step back from its role as an employer in considering a legally-based system of labour relations in the public service.

    As for job classification and staffing, these are the cornerstones of terms and conditions of employment, human resources management and labour relations in any enterprise and should be determined jointly by the employer and unions, and not unilaterally by the employer.

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There is no reason for it not to work that way in the kind of pluralistic society we now live in.

    With respect to job classification, the process for ranking positions in relation to one another has been an exclusive prerogative of management since 1967. What has been the outcome of that?

    In 2003, we find ourselves with a completely outdated system that is not consistent with current job realities or even the Canadian Human Rights Act. Pay equity complaints cost Canadian taxpayers billions of dollars and some employees waited two or three years to have their position classified correctly.

    According to the 2002 public service survey, which is a solid source of scientific data, 43% of employees said they disagreed with the current system because they believe it to be unfair. As we speak, we still do not know where we're going with this classification system.

    The Fryer Commission proposed a system of co-development for classification. I believe that such a system should be part of this legislative reform. It's a system whereby the parties work together to develop the classification system; where there is disagreement, a third party is to decide the issue through the current adjudication system.

    With respect to staffing and promotions and career advancement, again, under the system that has been in place since 1967, this is a non-negotiable item. Appointments are governed by the merit principle and managed unilaterally by the employer, and standards in this area are set by the Public Service Commission.

    In 2003, we are realizing that this an ineffectual system, and there is consensus on that point. Anyone would testify to the inefficiency of the current system, under which it takes forever to staff a position. Everyone is complaining about it.

    According to the 2002 federal public service employee survey, only 15% of employees fully agree that the system is efficient. So, both employees and managers are saying that the system doesn't work.

    What is being proposed to resolve this problem? First of all, the Bill proposes a new merit principle, which is that an appointment be made on the basis of merit when the person to be appointed meets the essential qualifications for the position. Under this new system, there would no longer be a need to go through an evaluation process involving several candidates. Of course, that would mean the system would be much quicker. Senior managers, in both their public statements and the briefs that I've been able to read, are applauding this Bill, because they see it as an opportunity to increase their power and move things through the system more quickly. Timeframes will be shortened, but at what cost? Employees will need to be sure not only that they have the qualifications for the position, which is currently the case, and that they are also--pardon the expression--in the good books of the manager the incumbent will report to, because otherwise they will no longer be evaluated. Previously, they at least had the chance to be evaluated. But with this new system, there will be no obligation to do so.

    In future, the only challenges allowed will be in cases involving abuse of authority and where the candidate was unable to be assessed in the language of his or her choice.

    Yes, the current system is causing problems. The one proposed in the Bill may, in my view, resolve some of the problems with respect to the speed of staffing, but it is certainly a major setback in terms of abiding by the real merit principle.

    Once again, the Fryer Commission had proposed a system of co-determination where the merit principle would be protected. Under this system, the most deserving candidate would be given the position, but the specific terms of application of the principle would be negotiated with the union. The process leading up to the appointment--as is the case in the vast majority of private, unionized companies--would be negotiated--in other words, co-determined with the union, as part of a system where disputes would be resolved through adjudication.

¹  (1555)  

    Just to conclude on those two points, I want to say that over the ten years that I have been doing research on the federal public service, I have realized that people are generally relatively satisfied with the general terms and conditions of their employment, as well as their compensation and benefits, but that they are far less satisfied with the way classification and staffing issues are handled.

    In my view, if we want to introduce a human resources regime aimed at enhancing employee retention and the public service's ability to compete with the private market in securing good candidates, we are really missing the boat, at least in terms of staffing and classification.

    If the government is serious about this and truly wants to improve the system, it will have to accept the idea of sharing power and management rights. Staffing and classification are conditions of employment that are just too important to be left in the hands of management alone, within a pluralistic labour relations system based on the principles laid out in the preamble of the Bill.

    I would be pleased to comment further or answer any questions you may have.

[English]

    The Chair: Thank you very much, both of you, for being efficient and well focused in your comments.

    Mr. Forseth.

    Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you. I hope I can be just as efficient and well focused.

    The Chair: We'll see if you rise to the challenge.

    Mr. Paul Forseth: Well, then, let's turn to page 124 of the bill, and proposed section 30 of the Public Service Employment Act, and be very specific. This is the whole issue of the merit principle that has been in the public parlance for quite some time now. The criticisms about this section have included phrases like, “It's watered down”, “It's undoing all the jurisprudence that we've arrived at to this state”, “It dishonours the tradition of the Home Office from England and what we inherited on the whole concept of the merit principle”. It goes on and on, because the wording in proposed paragraph (a) says:

the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head....

In other words, there's really no objective direction to find the best or produce the best or select the best.

    When I put that to various people, the only answer I got was about going back to the preamble, because something in the preamble talks about excellence. That was the only direction to get us to the idea that “merit” means selecting the best within a context or within the points system of a particular interview or whatever. So, many have commented on that. You haven't addressed that issue, and I find that interesting.

    I also make the comment that there's a fair amount of cynicism in the public service. They're looking at the bill and they're saying, “Oh, no, here goes the government again with top-down prescribing. It won't make any difference.” What I'm saying is that if there is some movement on this particular section, it could have immense value for acceptance and buy-in from the players at the lower level, for the overall culture change that we're talking about.

    Let's look at that specific line again:

the Commission is satisfied that the person to be appointed meets the essential qualifications and has most merit for the work to be performed....

    I've inserted four words. I think inserting those four words would satisfy a tremendous agenda, so I put that to you. What are your comments?

º  (1600)  

    Mr. John Fryer: The number one comment is that staffing was not part of our mandate as a committee, so we didn't look at it in detail. The second comment would be that to the extent that we dealt with the area of staffing, we said it should be co-developed between the unions and the employer. That's still my position, and I think it's still the position of our committee.

    As a personal observation, how do you implement employment equity, for example, and make sure you have a representative public service, if you can only appoint the very best person in every single competition? And by the way, I don't work for the federal public service, but to me as an outsider who is interested, that seems like a bit of a myth in any event. The Public Service Commission really hasn't been in charge of the merit principle for lo these many years, with the single exception of the EX cadre, which they do appoint, but everything else has been delegated forever. In that sense, we're talking about a mythic situation that hasn't existed for lo these many years. People have been appointed at the departmental level.

    I think you're familiar with the way the system works now, but let me just give you a tiny example, a little anecdote that might hit. I have six children. I was at a reception, and at the reception was a new member of the Public Service Commission—and I won't name the person, obviously. We were having a before-dinner drink, and I said, “You know, none of my kids have been able to get jobs with the federal public service, and they wouldn't mind doing that.” She said, “Well, you know they have to go to the Public Service Commission office in Vancouver.” I said, “They've all done that, but they don't seem to ever get any nibbles.” She said “Do they know anybody who works for the public service? That helps.”

    So I don't believe we've been recruiting people off the street who are the best people to do the jobs, not in living memory. In a sense, I think some of this discussion is about concepts, not reality. My position is that on the issue of staffing and the definition of “merit”, just like in British Columbia—and I don't want to keep throwing that at you, because you and I both have a privilege of coming from a place where we solved some of these problems years ago—the act should say the definition of “merit” is negotiated with the employer, the employer then applies the definition of “merit” to hire people, and if you don't like the way it's applied, you grieve it. Well, that would be fine with me.

    Mr. Paul Forseth: Thank you.

    The Chair: Mr. Paquet.

[Translation]

    Mr. Renaud Paquet: That is an excellent suggestion. I fully agree with what you just said.

    But let's take a closer look at your specific comment in that regard. Adding the four words you have suggested to this provision would, in actual fact, bring us back to the current Act. I, personally, consider that to be far superior to what is proposed here. My view is that the ideal regime would be one where the merit principle is enshrined in the legislation and where union-management negotiations are undertaken to determine how it is to be applied. Failing that, the current system seems to me to be far more relevant than what is being suggested in this Bill. The Bill proposes that a qualified person be appointed, whereas the current system says that the most qualified person is to be appointed. The words you suggested adding earlier really amount to that: appointing the most qualified person. Personally, I could never read into clause 30, taken in conjunction with the preamble, that the most qualified person is to be appointed. That is a legal subtlety that is beyond all comprehension. Given that the preamble doesn't even deal with that, clause 30 must be interpreted as worded. And clause 30, if it passes in its current form, gives management full rights to appoint the person it wishes, as long as that person is qualified. It doesn't say that the best candidate has to be appointed; it says that the person to be appointed has to meet the qualifications, which is obviously quite different.

[English]

    The Chair: Thank you, Professor Paquet.

    Mr. Fryer, if I could just give a word of caution, if you could squeeze your answers down just a little bit, we can get both of you in and all members will get a chance to get a response.

[Translation]

    Mr. Lanctôt.

    Mr. Robert Lanctôt (Châteauguay, BQ) : Thank you, Mr. Chairman.

    First of all, Mr. Chairman, I would appreciate receiving the French translation of Mr. Fryer's brief as quickly as possible, especially since we will be moving to clause-by-clause fairly quickly.

    Both of you point to the same weaknesses that we have identified in this Bill. One of those weaknesses, that you only briefly touched on, has to do with what can be challenged by employees. The reasons employees could give for challenging decisions relating to staffing, recruitment and appointments would now be limited. We are talking about two things that are extremely broad and extremely limited. I would like to hear how you think we could broaden opportunities for employees to challenge decisions in these areas. Would it be better to broaden them in a limited way, to add things--I don't know if you suggested this in your brief--or to do so in a general way, by adding a word such as “particularly”? I do think some things need to be added, because even if we insert the word “particularly” in front of what comes before that, we will still have a problem. There is a reference made to abuse of authority, and we all know how difficult it is to prove abuse of authority when you launch a legal challenge. So, challenges or complaints in that regard are considerably restricted.

    What specific recommendation would you make to help us clearly amend those clauses of the Bill that need to be amended?

º  (1605)  

[English]

    Mr. John Fryer: I can give you a quick answer on this one.

    I'm not a lawyer, so when I saw the words “abuse of authority”, I wasn't quite sure what they meant. I talked to people who are lawyers, and I talked to people who are working on the task force. I'm told “abuse of authority” covers what I understand to be favouritism, which is what I think people are beginning to worry about, in that if you don't go for the very best qualified person, then you have to have somebody who is qualified. Well, maybe you'll only pick your favourite.

    My understanding is that the words “abuse of authority” legally cover the concept of favouritism. I would like to see that wording in the bill so that the employees—who also aren't lawyers and don't understand what “abuse of authority” means—can see that one of the reasons they have for challenging an appointment is that they feel the employer has shown favouritism to somebody.

[Translation]

    Mr. Renaud Paquet: I would like to comment on that as well, before I touch on a different point.

    Yes, that could be helpful, but only as long as there continues to be a principle in law known as burden of proof reversal. In other words, the person doing the appointing would be required to prove that there was no favoritism, because it is extremely difficult to demonstrate that there was favoritism.

    However, even if we broaden employees' rights to challenge management decisions, the employee could only challenge one thing: the fact that the person did not meet the essential qualifications. Under this Bill, the merit principle as we understand it today, which means appointing the most deserving candidate to the position, is being abolished. The Bill says that the person to be appointed will meet the essential qualifications for the position. So, if you want to broaden the employee's right to challenge decisions to the greatest extent possible and make it clear that this refers back to sub-paragraph 30(2)(a), well, even then, the only thing an employee will be able to challenge is the fact that the person who was appointed did not meet the essential qualifications. And even if the person does or does not demonstrate that the appointee meets the essential qualifications, we will not have resolved the fundamental problem, which is that employees working in a particular section of a particular department will not have had access to the position, as they would under the current system. So, we would only be solving part of the problem by broadening the right of employees to challenge these kinds of decisions or appointments.

    Mr. Robert Lanctôt : And how could we resolve all of the problem?

    Mr. Renaud Paquet : Well, we would move much further in that direction by doing what your colleague suggested earlier, for example, which is to reinstate in the legislation the concept that the person to be appointed should be the most qualified or deserving candidate, rather than limiting the appointment to a person who meets the essential qualifications. But I believe these are all potential alternatives, and that the real solution is to allow the employer and the unions to determine these things together, as is currently the case in 95% of the private companies here in Canada, and which are successful at it. I believe the people appointed to positions in unionized, private corporations are just as qualified as federal public servants, and such appointments are based on a system bargained collectively by the employer and the union. Now, failing that, there are certainly minor improvements that could be made to the current wording.

º  (1610)  

    Mr. Robert Lanctôt : It goes without saying that there would also be co-determination. I said at the beginning that I agreed with that. You referred to that principle, but not in relation to challenges or complaints by employees--that's why I wanted some clarification in that area.

    Let's move on now to another point. It is clear that in terms of changing the culture of the public service, there is one very significant piece that is missing from this Bill: whistler blower protection. I think we should take this opportunity to provide this kind of protection, because we all know the Act has not been amended since 1967--in other words, for more than 30 years. We certainly believe there should not just be an integrity officer or administrative policy put in place by the minister. We believe that if there is truly a desire to change the culture… We know perfectly well that things won't change. People will not come forward and provide testimony and they'll take even fewer notes than they do now. There will be nothing in the files when we make a request under the Access to Information Act. So, if we really want there to be a change in culture, we have to do more than just talk about it. It's not good enough to simply say that the principles are laid out in the preamble and that people need to be protected, because it just won't happen.

    Do you think we should include such protection in the Act, rather than just developing a policy on this? Shouldn't we take this opportunity to include that in this Bill?

    I would like to hear your views on that.

    The Chair : Yes or no?

    Prof. Renaud Paquet : Yes, I fully agree. No one can be against motherhood.

[English]

    The Chair: Mr. Fryer, where do you stand on motherhood?

    Mr. John Fryer: I think whistle-blowing might appropriately be the subject of another piece of legislation, frankly.

    The Chair: Thank you.

    Mr. Proctor.

    Mr. Dick Proctor (Palliser, NDP): Thanks, Mr. Chair.

    I think Mr. Fryer's answer is consistent with that of the folks who were here yesterday. I think it's consistent with what we heard specifically from Hassan Yussuf, of the Canadian Labour Congress.

    I'm sure I speak for all members of the committee this afternoon when I say how much we appreciate the specific recommendations that both of you have brought to us.

    Firstly, in their brief, the Public Service Alliance indicated yesterday that because the government had abandoned Canada Labour Code principles, they're not going to get harmony, as they had hoped. Your report, Mr. Fryer, and the work of your whole group, talks about mirroring the Canada Labour Code. Do you believe that if the seven recommendations that you advanced this afternoon were adopted, this bill would be acceptable, as amended?

    Mr. John Fryer: I don't want to be cute, but acceptable to whom?

    Mr. Dick Proctor: To people like those in the Public Service Alliance who are disappointed with what they got.

    Mr. John Fryer: It's very hard for me to answer on their behalf. In public sector unionism, there are two schools of thought. There is the school of thought that started in Saskatchewan in 1944. It said that a worker is a worker is a worker, so all workers should be covered by a single trade union act. As I said, that has been taken up nowhere else. Many unions believe that and still hold to the principle that there should only be one labour code and everybody should be covered under it.

    My experience tells me there is a qualitative difference to working in the public sector as compared to private sector: the absence of the profit motive; the fact that the customer is the tax-paying public; the fact that there are no alternatives to the services provided, whereas if you don't like Dodge, you can go out and buy Chrysler or General Motors. So I'm convinced, after forty years, that there is a qualitative difference. Therefore, you do need different legislation, but it should track the rights in the private sector wherever possible. I think this bill moves toward that. It doesn't go all the way, but it is a considerable step toward harmonization when compared to the existing Public Service Staff Relations Act.

    Now, as I said in my remarks, some people say it doesn't go far enough and that we could have further harmonization. One area in which I'd like to see harmonization is in essential services. It seems to me that an essential service on an airline is not significantly different from an essential service in making sure Mrs. Jones gets her old age pensioner's cheque. In other words, the quality of the public interest in both those instances is similar.

    I think our committee had recommended that the provisions used in determining “essential services” be the same as those used in the Canada Labour Code. I would think that was important, because a lot of people in the federal public service—especially the unions, and especially the Public Service Alliance—feel very damaged if a dispute arises by the designation process that, to them, seems to just take away the effectiveness of their right to strike.

º  (1615)  

    Mr. Dick Proctor: You spent a fair number of your thirty-odd recommendations on this matter of co-development, and obviously you've come before us because there is no reference in what's before us. Can you just talk to us a little bit about that, please?

    Mr. John Fryer: The recommendations of my committee are a negotiated set of recommendations. I had employer reps, union reps, and academic reps. The employer position particularly was, no, we're not going to let people strike over pensions and staffing and classification. We're not going to add those to the mix of strikable issues.

    That's why we came up with this co-development notion: because there was general agreement that they should be jointly determined, and we can avoid them becoming strike issues by putting in a third-party resolution process. The National Joint Council, which has existed forever—before the unions existed—and all the unions sit together with management and determine common conditions, like what the travel policy is, how much you get for staying overnight, how many times you can come back home if you're sent away. They have a dispute resolution mechanism now for the first time ever. We said to use that same dispute resolution mechanism when efforts to jointly determine staffing, classification, and pensions break down. That's still my position. This bill really does not move the scope of collective bargaining at all. I think that's a major weakness.

[Translation]

    Prof. Renaud Paquet : This really has to do with the co-development or co-determination approach. As John was saying, it is a compromise--a middle position between full collective bargaining, as laid out in the Canada Labour Code, and the current regime of unilateral determination by the employer.

    It is a position that is halfway between what the two parties want, but makes it possible for both views to be heard under a system that is not adversarial, as is the collective bargaining system. Co-determination takes place away from the bargaining table, in other fora, based on the real issues rather than the positions put forward by the parties. We felt this represented a very good approach to extremely complex issues, such as classification and staffing.

    The merit principle could be enshrined in the Act and, based on that, there would be co-determination by the parties of how the merit principle would apply, taking into account the concerns of both the employer and employees. That would be a far more balanced system than the unilateral one proposed in this Bill.

    M. Dick Proctor : Thank you.

[English]

    The Chair: Thank you very much.

    Mr. Cullen.

    Mr. Roy Cullen (Etobicoke North, Lib.): Thank you, Mr. Chair, and thank you, Mr. Fryer, Professor Bourgault, Professor Paquet.

    Mr. Fryer, I was intrigued by your statement that the words “abuse of power” don't make a lot of sense to you. I'm not a lawyer either, so they don't make a lot of sense to me. The idea of favouritism rings a bell with me, though, as it probably rings a bell with a lot of Canadians.

    With your lawyers and their discussions, would you say there could be an abuse of power other than favouritism, or is abuse of power as you see it limited to favouritism?

    Mr. John Fryer: Again, I'm not a lawyer, but I think the proper answer is, no, abuse of power is not just limited to favouritism. However, it's that aspect of abuse of power that people are going to be worried about in this context. Therefore, I think we should say so. But as I understand it, there is a whole jurisprudence on abuse of power, which covers other things as well.

º  (1620)  

    Mr. Roy Cullen: I was asking the question in the context of this bill. In terms of labour–management relations, can you conjure up any ideas of other kinds of abuse of power in this context that would be in addition to favouritism? I was trying to think of some. I can't, personally.

    Mr. John Fryer: Off the top, I can't think of any that would be helpful to you, and I don't want to speculate. It is strictly a legal term, and ordinary public employees are not going to really understand it. When I looked into it, that was the worry. People said that if we have a pool of qualified people and the manager can pick one, what is going to stop the manager from picking his personal favourite? We've all worked in environments where that kind of thing happens.

    I was told that the protection is that the manager can't abuse his authority in making his selection. When I asked what that means, people said to me that it includes the concept of favouritism. That word means something to me, and it seems to me....

    I think of Renaud's point about the burden of proof being on the manager to show that they didn't exercise favouritism. That could go quite a way to ameliorating worries that people will have, because my experience tells me people have a pretty good idea of who is favoured by whom in workplaces, how, and all that kind of stuff. We may open up a horrible can of worms, of course, exposing office politics and God knows what else, but I think the term as currently used is just not going to be well understood by the very people it's supposed to apply to, and I don't like collective agreements or laws that apply to people when they can't understand them.

    Mr. Roy Cullen: Sure, and I'm sympathetic to what you're saying. I think you may have given some clue when you said it includes favouritism. In other words, it's not exclusive.

    I mention it because we had debates on terrorism in another committee, and the Department of Justice or the Solicitor General—I forget which one it was—was saying they wanted “terrorism” as defined by the common law, while parliamentarians were saying we want to define “terrorism”. We understand you cannot say one thing is terrorism and nothing else is terrorism, but legislative drafters seem to have difficulty saying “including” or “not to be limited to” and all of that.

    I think what you're saying is that even though the only logical thing would be favouritism, it would be limiting to just say only favouritism would be considered an abuse of power.

    Mr. John Fryer: Right, and a compromise might be to let the lawyers have their language and to then let the real people have theirs.

    Mr. Roy Cullen: I'd like to shift gears if I may, and maybe ask a question of both of you.

    This legislation, when it's passed in some form, is a start. Our subcommittee has been looking at some of the medium- and longer-term issues, and there's some debate about whether we actually need to continue that work.

    Let's assume this bill is in place. What are the other issues? At the subcommittee level, we've talked generally about the culture, accountability, human resource development planning, succession planning—to the extent that it can occur in the public service—and a whole range of topics like morale or the perception of public servants by Canadians and the feeling that they're under attack all the time. Are these some of the issues we need to be looking at, moving forward? Should we be focused on others as well? Is there a need, in fact, to do anything beyond this piece of legislation?

    Mr. John Fryer: First of all, as I understand it, this bill has within it a review process seven years from now, which I think is a good idea.

    On all the issues you talk about—morale and all this other stuff—my own view is that they are all...what we said in our report was that we want to change the culture of the federal public service from an adversarial one between the employees and their unions and the Treasury Board, to a collaborative one, a problem-solving one. It seems to me that morale is part of the problem, and how you fix it is something that should be subject to code determination of some kind.

    With regard to the young people we're hoping to recruit into the public service to replace the demographic bulge group that is leaving, today's young people are not the same as those folks were when they were recruited twenty or thirty years ago. I hate all these words like “empowerment” and all that kind of stuff, but in 2003, in the 21st century, people have a right to have some say about the way in which their work is organized.

    The objective is to have people looking forward to going to work in the morning when they wake up, instead of hearing about all these surveys that—depending on which survey you choose—show that a third or a half to three-quarters of people don't look forward to going to work in the morning. The whole idea is that they should, and we say the only way to do that is to involve the employees and their representatives as fully as possible in the determination of all these issues.

º  (1625)  

[Translation]

    The Chair : Mr. Paquet.

    Mr. Renaud Paquet : Allow me to comment very briefly in answer to your question which, as I understand it, relates to what is or can be done outside the legislative framework when there is a desire to take human resources management reform a step further. My view is that the source of the real problem is not the Act itself, but the way work is organized. We carry out studies and interview people. A great deal of my research is done with people who work for the public service, and they tell me that the true value of their work is not recognized, that credit for their successes is given to their superior, that duties are often poorly defined, and that expectations are unclear. Research in this area shows that the primary cause of stress and depression at work is poorly defined expectations. People often work on projects that seem to go on and on indefinitely.

    I guess I'll stop there, but I believe we have to re-think our whole way of organizing work, emphasizing a vision that empowers the employees.

[English]

    The Chair: Thank you very much, Mr. Cullen. That's the end of your time.

    Mr. Cullen's time is up in two ways. We've just been informed that, contrary to the information being displayed, which says this is a half-hour bell, it is in fact a 15-minute bell. The vote will be taking place in about 3 minutes.

    We are going to adjourn this meeting. We are not going to recess, because we have also been informed that with the number of votes we have, we could be voting for the next two and a half hours.

    Rather than have you all waiting around for that, we will ponder on this. We may or may not call you back. Individual members may also want to get in touch with you. For example, the chairman wants you to define “the public interest”, but we'll let that happen outside of this session.

    Members, we're adjourned. Let's get to the House.