Bill C-62 (Historical)

An Act to amend the Federal Public Sector Labour Relations Act and other Acts

This enactment amends the Federal Public Sector Labour Relations Act to restore the procedures for the choice of process of dispute resolution including those involving essential services, arbitration, conciliation and alternative dispute resolution that existed before December 13, 2013.
It also amends the Public Sector Equitable Compensation Act to restore the procedures applicable to arbitration and conciliation that existed before December 13, 2013.
It repeals provisions of the Economic Action Plan 2013 Act, No. 2 that are not in force that amend the Federal Public Sector Labour Relations Act, the Canadian Human Rights Act, and the Public Service Employment Act and it repeals not in force provisions of the Economic Action Plan 2014 Act, No. 1 that amend those provisions.
It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1, which authorizes the Treasury Board to establish and modify, despite the Federal Public Sector Labour Relations Act, terms and conditions of employment related to the sick leave of employees who are employed in the core public administration.

[The Chair, Liberal, Bryan May]

Pursuant to the order of reference of Thursday, February 1, 2018, the committee is resuming its consideration of Bill C-62, an act to amend the Federal Public Sector Labour Relations Act and other acts.

Today the committee will be hearing from federal departments. Welcome to all of you.

With us here today we have from the Canada Border Services Agency, Marc Thibodeau, director general, labour relations and compensation. From the Canada Revenue Agency, we have Ann Marie Hume, deputy assistant commissioner, human resources branch. From Correctional Service of Canada, we have Kristel Henderson, acting director, corporate labour relations. From Statistics Canada, we have Geoff Bowlby, director general, collection and regional services branch, census, operations and informatics field. From the Treasury Board Secretariat, we have Sandra Hassan, assistant deputy minister, compensation and labour relations sector, and once again we have today Dennis Duggan. Welcome to all of you. I understand a number of you have opening remarks so we're going to get started right away.

From the Canada Border Services Agency, Marc Thibodeau, director general, labour relations and compensation, the next seven minutes are all yours.

[Karine Trudel, NDP, Jonquière, QC]

Mr. Aylward, you mentioned three parts of amendments relating to essential services.

Since 2013, has this had a negative impact? We have heard that over 80% of public service positions had to be deemed essential. Has the current act had a negative impact on you? What effect will the proposed amendments to Bill C-62 have? What positive effects will they have?

[Chris Roberts]

I think they have in mind the amendment referred to by my colleagues from the Public Service Alliance of Canada with respect to a passage that's found in both Bill C-62 and the impugned unconstitutional legislation in Saskatchewan, which was addressed specifically by the Saskatchewan judge and indeed in the Supreme Court decision, as I understand it.

In order to avoid risking subsequent challenges along the same lines, I think it would be incumbent on the committee to give close scrutiny to that small provision in Bill C-62 and consider amending it.

[Karine Trudel, NDP, Jonquière, QC]

Thank you very much, Mr. Chair.

I want to thank the witnesses for their presentation. My first question is for Mr. Roberts.

In your remarks, you said that amendments are needed to Bill C-62. Please elaborate on the amendments that should be made to Bill C-62.

[Chris Aylward]

Certainly as I stated in my statement in July 2016, we reached an agreement with, at the time, Minister Brison, who is the President of Treasury Board, to restore our rights pre-Bill C-4. That certainly indicated to us a positive move for sure, and that's why we certainly welcome Bill C-62.

I just want to remind committee members that our members, my 130,000 fellow public sector workers as well as those of my friends in the other bargaining agents, are taxpayers as well.

[Chris Aylward, National Executive Vice-President, Public Service Alliance of Canada]

Thank you, Mr. Chair, and thanks to the committee members for providing the Public Service Alliance of Canada this opportunity to meet with you on Bill C-62.

The Public Service Alliance of Canada represents over 130,000 federal public sector workers.

We welcome this bill that finally restores some of the balance to collective bargaining in the federal public service that was lost by the passage of the previous government's two bills, Bill C-4 and Bill C-59. Division 20 of Bill C-59 took away the collective bargaining rights of our members and other federal public service workers. It gave the government the unilateral right to amend the sick leave provisions of our collective agreements at any time. We do not consider it free collective bargaining when the employer has the legal power to impose a predetermined outcome.

Bill C-62 will also restore rights taken away through the changes that were made by division 17 of Bill C-4 of the Federal Public Sector Labour Relations Act. These changes placed fundamental restrictions on our members' collective bargaining rights, such as those affecting designation of essential services.

The Supreme Court of Canada has confirmed that the right to collective bargaining is a protected right under the Canadian Charter of Rights and Freedoms. In 2007, it ruled that freedom of association includes the right to collectively bargain. That freedom is also guaranteed by the Canadian Bill of Rights. When governments restrict the ability of employees to engage in good-faith negotiations, an important term and condition of their employment, they violate that freedom of association. Bill C-59 denied the right of employees to good-faith bargaining by giving the employer the unilateral authority to establish all terms and conditions related to sick leave, including establishing a short-term disability program and modifying the existing long-term disability program. Bill C-4 gave the employer the authority to override many provisions of the Public Service Labour Relations Act, including the statutory freeze provisions that maintain the status quo while the parties are engaged in collective bargaining.

While we welcome the repeal of these sections, Bill C-62 will also contravene the charter. In January 2015, the Supreme Court of Canada issued a ruling on the Saskatchewan Federation of Labour's challenge to the province's Public Service Essential Services Act. The court ruled that the right to strike is protected by subsection 2(d) of the charter. It held that the right to strike is an essential part of a meaningful collective bargaining process in the Canadian system of labour relations. That ruling directly affects wording of the Federal Public Sector Labour Relations Act that would be restored by Bill C-62. The Saskatchewan Public Service Essential Services Act contained language that allowed the government to avoid using management or non-union staff to provide essential services during a strike. The Supreme Court ruled that this act was unconstitutional because it violated employees' section 2 charter rights.

The court decision included an observation about this language by the original trial judge. He said that it enabled “managers and non-union administrators to avoid the inconvenience and pressure that would ordinarily” occur due to “a work stoppage”. He also said that it shouldn't matter if the qualified personnel available to provide the necessary services are managers or administrators. If anything, the language works at cross-purposes to making sure essential services are delivered during a work stoppage.

Bill C-62 would permit identical language to remain in the Federal Public Service Labour Relations Act. To remedy this, we ask the committee to propose an amendment to remove, from clause 9, proposed paragraphs 121(2)(a), 123(6)(a), and 127(6)(a). All three read as follows, “without regard to the availability of other persons to provide the essential service during a strike”.

The amendment to remove these proposed paragraphs is consistent with the 2015 Supreme Court decision. When both Bill C-4 and Bill C-59 were passed, PSAC filed constitutional challenges. In 2015, we, and other federal bargaining agents, also filed a motion for an injunction that would prevent the government from using its powers under Bill C-59's division 20 until after the constitutional challenge was heard on its merits.

That motion was scheduled to be heard in the fall of 2015 and then was pushed to March of the next year, in order to give the new government an opportunity to revise the previous government's position and provide instructions to counsel. At this time, both court proceedings are adjourned, pending repeal of the offending provisions that were contained in division 17 of Bill C-4 and division 20 of Bill C-59.

In July 2016, an interim agreement was reached between PSAC and Treasury Board that included measures to address concerns regarding choice of dispute resolution mechanisms, rules governing public interest commissions and arbitration boards, and essential service designations, among others. However, that was a temporary measure and we will soon be entering another round of bargaining for our members in the federal public sector. Our constitutional challenges will not be withdrawn, until such time as these sections of Bill C-4 and Bill C-59 are repealed and our members' rights restored.

I ask the committee to propose the removal of the unconstitutional sections of Bill C-62 and to expedite its passage.

Ms. Devine and I will be pleased to answer any questions you may have.

[Chris Roberts, National Director, Social and Economic Policy Department, Canadian Labour Congress]

Thank you very much, Chair.

Good afternoon, committee members. Thank you for the invitation to appear before you today.

On behalf of the three million members of the Canadian Labour Congress, I want to thank the committee for the opportunity to present our views on Bill C-62. The CLC brings together Canada's national and international unions, along with the provincial and territorial federations of labour, and over 100 labour councils from coast to coast to coast. Employees represented by affiliated unions of the CLC work in virtually all sectors of the Canadian economy, in all occupations, in all regions of the country, including the federal public service.

The Canadian Labour Congress supports the enactment of Bill C-62, although with the important amendment that I think my colleagues from the alliance are going to raise in just a moment.

We believe that restoring vital aspects of the federal public service labour relations framework to the status quo prior to the enactment of Bill C-4 in 2013, and Bill C-59 in 2015, will provide for more fair, balanced, and constructive labour relations in the federal public service. Bill C-62 will also establish a labour relations framework that is more consistent with the rights of Canadians enshrined in the Charter of Rights and Freedoms and the Government of Canada's obligations under international law.

Bill C-62 repeals many of the regressive changes to federal public service labour relations contained in divisions 17 and 18 of Bill C-4. Bill C-4 withdrew the ability of bargaining agents to select one of two methods of dispute resolution in the event of impasse: interest arbitration or conciliation/strike. The legislation imposed a default method of dispute resolution, conciliation/strike, without any compelling rationale or negotiation with federal unions.

At the same time, Bill C-4 gave the employer exclusive rights to determine what services are essential, and how many and which positions are required to deliver those services. The role of the bargaining agent was reduced to limited post hoc consultation, with no dispute resolution mechanism established to contest any of these designations.

The legislation also allowed the employer to require an employee, occupying a position designated as essential, to be available during off-duty hours to perform all duties assigned to that position. In other words, non-essential work would be performed during a strike.

Access to interest arbitration for bargaining units where the majority of workers were designated as essential was thus taken away. Arbitration would be available to the unions only where 80% or more of the positions of the bargaining unit had been designated by the government as essential.

The legislation also altered the factors to be considered by the arbitration board in making an arbitral award. From the original five factors to be considered by the board, Bill C-4 required the arbitration board to give preponderance to just two factors: one, the necessity of attracting competent persons to and retaining them in the public service in order to meet the needs of Canadians, and two, Canada's fiscal circumstances relative to its stated budgetary policies.

The second factor stifles a reasoned debate about the employer's fiscal circumstances and replaces it with the government's “desire to pay”, regardless of ability. In place of an evidence-based assessment of relevant economic factors and fiscal circumstances, the legislation effectively substituted the willingness of the government to compensate its employees at a certain level, and obliged arbitration boards to give preponderance to this factor and one other.

Finally, Bill C-59 granted the President of Treasury Board the ability to unilaterally impose a sickness and disability regime. Under Bill C-59, these fundamental terms and conditions of employment could be imposed rather than negotiated as they historically had been.

In conclusion, the CLC supports Bill C-62 with an important amendment that's about to be discussed, and the promotion of good-faith collective bargaining and respectful dialogue with public service employees. I want to emphasize that consulting and negotiating with public service bargaining agents, promoting mental health and providing support for workers, and investing in a workplace culture of fairness and respect pays off in high-quality services and lower costs to government and all Canadians.

A highly productive and motivated public service is one in which employees are supported, included, engaged, and recognized at work. Vilifying public service workers, undermining employee rights, and failing to invest in healthy workplaces represents a false economy, in my view. It leads to higher costs to government and Canadians in the form of low employee morale, a higher incidence and severity of depression and poor health, and lower levels of productivity, not to mention higher operational costs and elevated litigation risk to government.

Finally, the CLC believes that changes to labour laws must be conducted in a tripartite context, with ample study, consultation, and deliberation of the evidence, and an integral role for unions.

I want to close by echoing my colleagues' criticisms of PSECA and that egregious legislation, and also indicate the CLC support for repealing that legislation as soon as possible.

Thank you for your time, and I'd welcome any questions you have.

[Greg Phillips, President, Canadian Association of Professional Employees]

Honourable members of Parliament, we would like to thank the members of the committee for inviting us to appear, so that we are able to provide our opinion about Bill C-62.

My name is Greg Phillips, and I am President of the Canadian Association of Professional Employees, or CAPE. CAPE represents some 14,000 public service employees. The large majority of our members are economists and social science workers who advise the government on public policy. We also represent the translators and interpreters who work every day to preserve and promote our nation's linguistic duality. Last but not least, we also have the great honour of representing the 90 analysts and research assistants employed by the Library of Parliament.

Accompanying me here today is Peter Engelmann, a partner with the law firm of Goldblatt Partners, who has a great deal of experience in labour law and constitutional law, particularly in the context of the federal public sector.

I want to start by saying that CAPE is very pleased that the government is finally taking steps to repeal Bills C-4 and C-59, the blatantly anti-union legislation that was passed by the former government. While it has taken far too long for the government to make good on the promises that were made even before the 2015 election, CAPE looks forward to seeing this bill go through the legislative process as quickly as possible in order to help restore the balance in labour relations in the federal public sector.

As you are no doubt aware, under the guise of modernizing labour relations, the former Conservative government attacked the collective bargaining rights of federal public servants on a number of levels. Bill C-4 came first and was problematic in many respects. It provided the government with undue leverage in the collective bargaining system in everything from the negotiation of essential services agreements to public service recourse procedures.

However, from CAPE's perspective, the most egregious changes were to the dispute resolution process. In particular, Bill C-4 took away the rights of our bargaining agents to choose between the arbitration or conciliation/strike routes as a process for resolving collective bargaining disputes.

In CAPE's case, it took away the right to arbitration, a process that had always worked well for CAPE and its members, and pushed them into the conciliation/strike route. In addition, the government even compromised the arbitration and conciliation processes by imposing new factors that arbitrators and conciliators had to consider when making a recommendation or award.

Bill C-59 took matters a step further and permitted the government to fundamentally change the long-standing and hard-fought sick leave and disability programs of public servants. Most disturbingly, it gave the government power to do so unilaterally, bypassing the bargaining process altogether. CAPE, along with many other federal public sector unions, felt that this legislation denied its members their fundamental rights under section 2(d) of the charter in that it did not allow for meaningful collective bargaining with regard to these key workplace issues. Therefore, CAPE actively participated in a case before the Ontario courts, which challenged the constitutionality of that legislation. Following the important decision of the Supreme Court of Canada in the Saskatchewan Federation of Labour case in 2015, CAPE is confident that this charter challenge would have been successful in overturning Bill C-59 and likewise Bill C-4.

Needless to say, these changes to the labour relations scheme by the former government led to a combative and unproductive labour relations environment in the federal public service. This has been problematic not just for the members of bargaining agents such as CAPE, but for everyone who works in the federal public service. As noted at the outset, CAPE believes that it has taken far too long for the government to take these straightforward steps to turn back the clock to the labour relations system that was in place before C-4 and C-59.

The lengthy delay of over two and a half years since the election has unnecessarily prolonged this adversarial environment. CAPE is also disappointed that the bill fails to address some of the problems that have plagued the federal public service labour relations regime since even before Bills C-4 and C-59, such as the lengthy delays in getting cases to adjudication. This would have been an excellent opportunity for the government to tackle this important access to justice issue.

On a more positive note, it appears that this bill undoes virtually all the difficulties created by Bills C-4 and C-59. CAPE looks forward to returning to a labour relations system that is not perfect but is much more balanced and fair.

CAPE also notes that while Bill C-62 is amending the Public Sector Equitable Compensation Act, it is only a housekeeping provision to restore the procedures applicable to arbitration and conciliation that existed before December 31, 2013.

CAPE is disappointed that the government is not seizing on this opportunity to fulfill its commitment to completely repeal PSECA and to move forward with a proactive pay equity scheme immediately.

PSECA is a regressive piece of legislation that is a major step backward from the concept of equal pay for work of equal value, and it significantly interferes with the rights of federal public-sector employees by denying them human rights procedures for systemic gender discrimination in pay. CAPE is concerned that this will be another instance where there are unacceptable delays, which will prejudice its members, and we call on the government to take concrete steps as soon as possible.

Thank you for listening.

[The Chair, Liberal, Bryan May]

Welcome, everybody. Pursuant to the order of reference of Thursday, February 1, 2018, we are studying Bill C-62, an act to amend the Federal Public Sector Labour Relations Act and other acts.

We have a number of witnesses here today. From the Association of Justice Counsel, we welcome Ursula Hendel, President. From the Canadian Association of Professional Employees, we have Greg Phillips, President, with Peter Engelmann, Partner, Goldblatt Partners LLP. From the Canadian Labour Congress, we welcome Chris Roberts, National Director, Social and Economic Policy Department. From the Canadian LabourWatch Association, we have John Mortimer, President. From the Public Service Alliance of Canada, we have Chris Aylward, National Executive Vice-President, and Krista Devine, General Counsel and Director of Representation.

Welcome to you all.

We're going to get right into opening statements by each group. We keep the statements as close to seven minutes as possible. I will notify you when you have one minute left. Trust me: a minute is a long time, so don't panic. We do need to keep on time. I'm going to have to cut people off at seven minutes just so we make sure we get everybody in before we get called back upstairs.

Starting us off is Ursula Hendel, President, the Association of Justice Counsel.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you.

What I was sharing is very relevant. Bill C-62 appears to be a bill with not public consultation. There was consultation with only one party. It appears to be the billion dollar bill, or the golden handshake bill, or the growing disparity bill, whatever we want to call it, but it's a shocking.

I thank the department for answering our questions honestly, which they always do. They work very hard, but Bill C-62 is a partisan bill. It's a golden handshake bill, and we have to critique it. That's the responsibility of the official opposition, and that we are doing. We are finding out that this is not a good bill. It doesn't deserve to be supported.

When I was in government in 2008, the economic challenges then affected all members of society. Our members' office budgets were frozen, our pensions were cut back, and public sector was affected. Everybody was affected, and we all had to live within our means. The new government, God bless them, inherited a $2-billion surplus. That's all gone, and $2 billion doesn't sound like a lot of money now when you're into $22 billion a year in deficit, and we now have the trillion dollar club. It's shocking.

Thank you.

[Sandra Hassan]

Bill C-62 has provided that the president could recommend that a new regime be imposed, so that was significantly different. The president has the authority to recommend that a new regime be imposed instead of being negotiated.

[Dan Ruimy, Liberal, Pitt Meadows—Maple Ridge, BC]

Was it subject to negotiation prior to Bill C-62?

[Sandra Hassan]

If Bill C-62 passes, it would all be subject to negotiation.

[Sandra Hassan]

Under Bill C-62, those provisions are repealed, which means that now we need to negotiate those changes with the bargaining agents.

[Bobby Morrissey, Liberal, Egmont, PE]

Could you then compare that to the companion piece of the new legislation in Bill C-62, or how it will be treated under Bill C-62?