Bill C-2 (39th Parliament, 1st Session) Committee on May 29th, 2006

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Very well. Thank you.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Is there more time?

[The Chair, Conservative, David Tilson]

Yes. You have less than two minutes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

On that same point, the staff relations board, which was proposed to protect whistle-blowers under the previous whistle-blower protection bill, Bill C-11, does not have the ability to discipline someone who has punished a whistle-blower.

One of the things we've tried do with the tribunal we're creating to protect whistle-blowers is to have an independent body that can actually discipline someone who has bullied a whistle-blower, because it's not realistic to expect politicians or bureaucratic leaders to discipline someone, or to discipline themselves, in fact, when they might have been the one who is actually doing the bullying in the first place. So we've taken that totally outside the executive branch of government, and the only place it can realistically reside is with the judiciary, which has obvious experience in disciplining--they hand out sentences, after all.

So that is a function that cannot exist in the staff relations board. I'm wondering if you agree with me and with the government that it should be an independent body that disciplines bureaucratic and political bullies, as opposed to having the bureaucratic and political leadership carry out that function.

[Neil Finkelstein]

The short answer is yes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you. That's a very good answer.

[Neil Finkelstein]

I tend to try to avoid the short answers, sir, but in this case it seems appropriate.

[The Chair, Conservative, David Tilson]

You're finished, Monsieur.

The committee has two minutes, if we're taking rounds.

Mr. Dewar has enough for two minutes, if he wishes. If not, we'll give it to someone else.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

I want to follow up on the whistle-blower thread. We've talked around this table about having parallel streams, if you will. One is the tribunal. Others who are coming at it from the union side of the equation have said that perhaps the labour relations board is another stream they could go down--and certainly the preference being available to any one individual--but the difference is that they would have to be given additional powers so that both the tribunal and the board would have the same kinds of tools. The reason is just one of trust and culture, in that the labour relations board is something unions are used to, and so are their members.

I just wonder if you'd like to comment on that, because it's a discussion we've had around the table here.

[Neil Finkelstein]

As a general proposition--as a litigator now--I feel more uncomfortable in front of a judge than a board.

[The Chair, Conservative, David Tilson]

I think that's it, sir. Thank you kindly for coming.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Just a quick point of order, Mr. Chairman. I'm wondering if we will have time in tonight's agenda for committee business. If not, when will we be able to find some agenda time for some brief committee business?

[The Chair, Conservative, David Tilson]

It's up to the committee. We're scheduled until eight o'clock.

Why don't you talk about it with the caucuses in the break? I'll do whatever the committee wishes.

We'll take a short break.

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, we will reconvene the meeting.

Our next guests come from the Public Service Labour Relations Board. With us this evening are the acting chairperson, Sylvie Matteau, and the executive director of the board and general counsel, Pierre Hamel.

Good evening to both of you. You can make some preliminary comments, and then there will be questions from the members of the committee.

Thank you very much for coming.

[Sylvie Matteau, Acting Chairperson, Public Service Labour Relations Board]

Thank you very much, Mr. Chairman.

I have a preliminary statement to make. I will make it in both French and English and alternate between the two languages. Mr. Hamel will assist in our discussion later on with your questions.

On May 8, 2006, I was designated to act as chairperson of the Public Service Labour Relations Board by the Minister of Canadian Heritage until a chairperson is appointed. The Minister of Canadian Heritage is the designated minister for the purpose of the Public Service Labour Relations Board.

I am honoured to appear before the committee in this capacity and am pleased to provide information on the board's mandate and responsibilities under various statutes, mainly the Public Service Labour Relations Act.

The Public Service Labour Relations Board is an independent, quasi-judicial statutory tribunal responsible for administering the collective bargaining and grievance adjudication systems in the federal public service and the parliamentary service.

The board's success in the important mission that Parliament has conferred on it depends in large measure upon the neutrality and impartiality, both perceived and real, with which we deal with matters coming before us. To ensure that we safeguard this neutrality, which is vital to our independence and credibility, you will understand that I must refrain from expressing views on the substantive provisions of the bill, which you are current reviewing, or indeed the legislative provisions of any statute that may come before the board for adjudication at any time. It will also be inappropriate for me to comment on any particular case presently before the board. Consequently, I feel that I am under an obligation of reserve with respect to the matters that are discussed here at the committee, and I trust the committee will understand this imperative.

I appreciate that the committee is particularly interested in the amendments to Bill C-2 that affect the Public Servants Disclosure Protection Act and that have implications for this board. The act confers on the board the responsibility to deal with complaints made by public servants against reprisals. Amendments to that act, which are contained in Bill C-2, would remove this responsibility from the board and establish a new public servants disclosure protection tribunal to hear and decide these matters.

I realize it has been suggested in some quarters that the board should serve as the forum before which employees may present complaints against reprisals. For the reasons I just mentioned, I have no view to express on either of those proposals. However, in order to assist you in your deliberations on these questions, allow me to briefly describe the board's existing mandate and responsibilities.

As you probably know, the board was originally established in 1967 as an independent, quasi-judicial statutory tribunal, and since then it has accumulated an important body of jurisprudence and knowledge in all matters related to labour relations in the public and parliamentary service.

While a new board with an expanded mandate was established on April 1, 2005 with the coming into force of the Public Service Modernization Act, in fact it serves to continue the work of the former board.

As an independent entity, the board is a separate employer and it reports directly to Parliament on its activities to a designated minister — currently the Minister of Canadian Heritage.

Members of the board are appointed from two lists, one of which is provided by the employers and the other by the bargaining agents. Appointments are to be made to the board so as to ensure that, to the extent possible, an equal number of individuals are appointed from each list. Even though a board member may have been recommended by one party or the other — either the employer or the bargaining agents — the legislation specifies that members do not represent those parties and requires them to act impartially at all times. Board members are further guided by the board's code of conduct and guidelines, reviewed and updated in 2005.

Finally, the legislation requires that, to be eligible to hold office as a member, a person must have knowledge or experience in labour relations.

In carrying out its mandate, the board is called upon to hear and determine applications and complaints of various kinds, including complaints by a public servant that he or she has been subject to reprisals for having exercised a right recognized by law, or for having participated in the legitimate activities of an employee organization. The board is also responsible for dealing with complaints made by public servants who allege that they have been victims of reprisals for having exercised a right under part II of the Canada Labour Code, in other words, the occupational safety and health provisions. The board has been vested with this jurisdiction since 1986. Thirty-three such cases are currently before the board.

The vast majority of the board's work is to adjudicate on grievances filed by federal public servants that relate to the application or interpretation of a collective agreement, to disciplinary action imposed on employees, or to the termination of employment for disciplinary or non-disciplinary reasons.

The act provides that board members hear and determine grievances and sit as adjudicators as assigned by the chairperson. In board matters, a panel of three members can be appointed at the discretion of the chairperson.

The board's jurisdiction covers approximately 221,000 public servants grouped under 86 bargaining units and represented by 30 bargaining agents. The Treasury Board is the employer for over 162,300 public servants. Other public servants, of course, work for the remaining 23 separate agencies. In addition, parliamentary employers hire a total of approximately 2,700 employees.

There are 4,037 grievances currently before the board under both the Public Service Labour Relations Act and the Parliamentary Employment and Staff Relations Act.

Under the new Public Service Labour Relations Act, adjudicators of the board can deal with human rights aspects of grievances they are seized with, something that was not possible under the former act. This jurisdiction exists in parallel with the right of federal public servants to file a complaint before the Canadian Human Rights Commission, and it gives the commission the right to make representations before the adjudicator when the issue of human rights is being considered.

The board also provides mediation and conflict resolution services to help parties to resolve differences at the bargaining table or to settle their cases without resorting to a formal hearing.

As part of its newly expanded mandate, the board has established compensation analysis and research services to support the employers and the bargaining agents in their collective bargaining. The board is also responsible for administering the labour relations collective bargaining and grievance education framework for employees of Parliament.

As you can see, the board's mandate is multi-faceted and covers a wide range of labour- and employment-related matters affecting federal public servants and parliamentary employees. It is involved in redress procedures for persons employed in the federal public and parliamentary services, and it operates very much in a court-like fashion, although it strives to operate in a more informal manner.

To enable the board to carry out its mandate effectively, the statutes give the board and adjudicators a wide array of powers akin to those of a court of law, including the power to summon witnesses, order the production of documents, order pre-hearing conferences, hold hearings in person or sometimes in writing, and summarily dismiss a frivolous or vexatious application or complaint.

It can order remedies such as reinstatement and damages to correct any wrong that demonstrably occurred.

Decisions rendered by the board and adjudicators can be judicially reviewed under the Federal Courts Act on a question of law, natural justice, or jurisdiction.

Over the years, the courts have set a high threshold of review of the board's decisions — that of patent unreasonableness — on the grounds that the board is a specialized and expert tribunal in the field of labour and employment relations.

Over the years, approximately 10 per cent of the board's decisions have been reviewed at the request of one or the other parties. Of this number, the Federal Court has upheld the board's decision in 80 to 90 per cent of cases. The decisions rendered by the board are binding on the parties and may be filed in the Federal Court. An order so filed becomes an order of the Federal Court and may be enforced as such.

As I have already mentioned, over the years, the board has also encouraged the parties to resolve their cases and differences with the assistance of mediation. The board has staff mediators who assist the parties in their efforts and can also utilize outside experts for that purpose.

Mr. Chairman, I hope this overview of the mandate and responsibility of the board under existing legislation has been useful.

I reiterate that I express no opinion on the legislative proposals that are before you or the scheme provided under the Public Servants Disclosure Protection Act. I can assure the committee that the board will be pleased to carry out, with the suitable level of resources, of course, whatever role Parliament considers appropriate to confer on it as the labour tribunal for the public service of Canada.

That concludes my remarks, Mr. Chairman. I would be pleased to answer any questions the committee may have.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Matteau. I know there will be some questions.

Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. Chairman.

Thank you for a very excellent overview with respect to how the board operates.

Inasmuch as a disclaimer has been made in terms of making comments on the legislation, I'm at a bit of a loss as to how to question Ms. Matteau.

What really is before us is a challenge that was put by the Public Service Alliance and a professional organization, which left the proposition thusly: if the labour relations board architecture was vested with the additional powers that are being suggested to the tribunal, it could, in their opinion, work with its corporate memory and its ability to act expeditiously; it could do the job, and it would not be necessary to recreate a system that in fact is there. That was basically the proposition that was put forward.

I'm not sure whether I'm stepping beyond the boundaries that Ms. Matteau is comfortable with, but I think she can see and feel the dilemma. In order to explore the validity of the alliance, it would be necessary to extract an opinion at least. So I guess I'm going to phrase the question in this way. Given the terms and conditions with respect to the tribunal, do you believe it would be in the interests of the employee and the employer--because you said the arbitrations board is a balanced board, that it applies precedents, the labour relations act, and all aspects of collective agreements--to create an additional body, as suggested in this legislation? If not, do you feel you could make suggestions as to how the labour relations board could do all that this bill makes it accountable for?

[Sylvie Matteau]

Thank you, Mr. Tonks.

I fully understand the dilemma we're faced with. I think you do understand the dilemma we are in as a tribunal, and I thank you for that. We will try to answer the question as best we can. Your effort in trying to phrase it in that light is very much appreciated.

Under the existing legislation, I think I have tried to give you a broad idea of what the board is familiar with, has experience with, and has the power to deal with in terms of remedies and conducting hearings. As you are looking at the possibilities of a new tribunal, these are obviously the things you're looking at, so you will be able to hopefully compare and make a determination as to what you, as a committee and Parliament, think is best.

I also hear that we have been invited to the committee following some suggestions from the two parties that you mentioned. Even in that light, I believe that one of the advantages these organizations may see with this board is the experience and their familiarity with it. I could leave it at that. The board, however, does not have an opinion, as I was saying, as to whether we should deal with this.

[Alan Tonks, Liberal, York South—Weston, ON]

I think my colleague, Ms. Jennings, would like to follow up.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much, Mr. Chair.

Thank you very much for your presentation.

I understand very well that given the mandate, authority, and responsibilities of your board, you aren't able to say, we can do the job that's been suggested by other witnesses that Bill C-2 currently would give to an entirely newly created organization. That's very clear to me, and I would hope to any impartial listener—whether they're in this room or watching by television—when you describe the expertise that your board has, the qualifications, the types of cases you deal with, the authority you have. You make the point that your authority was expanded under the modernization, and you dealt with it and you've handled it.

The underlying point--I will say it, you can't--is that if this committee in its wisdom decides that rather than creating an entirely new structure, we take the powers that would have gone to that structure, that tribunal, and we invest your board with it, your board will be able to handle it more than adequately, more than efficiently. You've got the expertise, the experience, the qualified people--you've got it all. There's no difference in terms of the appointments, because judges are appointed by Governor in Council, as are the members of your board. The difference is that they're there for life, until they're 75, whereas you guys aren't. If you're going to stay there, you have to be qualified and you have to continue to be qualified.

Have I taken up my two minutes?

[The Chair, Conservative, David Tilson]

You have indeed.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, David Tilson]

Thank you very much.

We'll move on to Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I would like to begin by thanking you for your excellent presentation. I was very glad to hear you say that you did not want to give an opinion on the choice to be made between the Public Service Labour Relations Board and the famous Public Servants Disclosure Protection Tribunal. You said that the board reports directly to Parliament through a designated minister. You also explained the way in which appointments are made to the board. I think that is very relevant to our discussion. Obviously, the fact that you already handle complaints made by public servants who allege that they have been victims of reprisals, and the fact that 33 such cases are currently before the board, attest to your experience in this field.

Firstly, I would like to know whether public servants have expressed reticence about taking a matter to the board for fear of being treated unfairly? Secondly, you spoke about additional responsibilities. However, in light of what you have told us, I wonder if it could really be described as a broader mandate. Let us say, for example, that Bill C-2 mandated a new body to carry out the work that you currently do. Would it truly have a broader mandate, or would it not simply be carrying out your current mandate?

[Sylvie Matteau]

I would first like to state that, to the best of my knowledge, there have been no instances of public servants complaining or expressing concern about their complaint being treated unfairly.