Bill C-2 (39th Parliament, 1st Session) Committee on May 16th, 2006

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

Thank you for taking time today.

Just for the record, I think it might be worth having you back. I think the accountability act we're talking about is the accountability of government to the public, certainly, and there's more to do there. You represent the majority of the men and women who work every day. I think we should invite you back for a longer time period because you have a lot of expertise, obviously.

Congratulations to you, Mr. Gordon, on your new appointment, or your election, I should say.

A couple of things I want to touch on.... The comments you made about what the whistle-blower act should do are precise. Hopefully that's been captured here, because you're bang on.

What we don't want are rewards. I'm getting to the point where I think rewards are unethical. They're unethical, and you send a contrary message to everyone. I think that's something I've said before; it will fall off the table, as it's going in the reverse direction of where we want to go--it's unethical.

Providing a remedy to those who have blown the whistle is absolutely critical. You talked of the Shiv Chopras of the world and have seen what has happened to their lives, and that is something I think has to happen.

Here we are with the legislation in front of us, and you made some very interesting comments. I'm looking to the committee to get a legal opinion—and maybe we're going there already—on the sequence of representation here. I'm very concerned this would supersede bargaining rights. What this committee has to grapple with, look at, and get an opinion on--and maybe that's going on as we speak--is the role of collective agreements and the bargaining agents superseding this process. I don't think there was intent from anyone--I would hope not--to have that supersede people who are elected to represent employees. That would be a tragic irony, if we had a piece of legislation that would supersede people who are elected to represent employees. That would be more than a step backward. I think that's an important point you both underlined.

The other thing I want to follow up on is this notion--we heard it from Mr. Cutler and Ms. Gualtieri--of the isolation that occurs. You touched on something in terms of, at least if you have a union representing you, the role they can play—and they certainly said sometimes it's extremely helpful, other times less helpful, who knows—the role of the bargaining unit of the union to support during the period when someone makes that courageous act to blow the whistle is absolutely paramount.

I'm wanting to know from you, in terms of the onus on the whistle-blower and the supports--and we touched on it a second ago--what can be put in place to make sure they are indeed protected? Often you can deal with these things through language and through going to a fair tribunal or labour relations process, but how do we protect those men and women so we do have the culture of integrity that everyone is talking about?

Second, when you're looking at legally providing support and remedy, how would you advocate doing that, or is that something we'd pause and think about?

There are two questions there.

Thank you.

[Michèle Demers]

With respect to protection, I think the role of the bargaining agent needs to be clearly defined in the legislation, and the presence of the bargaining agent or representative ensured for the whistle-blower throughout the process, from the disclosure onward.

With respect to representation, as I said, we have the expertise and the experience of representing our members in front of the Public Service Commission. If this is to be a judicial tribunal that will hear cases of reprisal, is legal assistance going to be provided to the members who need to appear in front of that tribunal to the same extent as maybe the other side or the person accused of having conducted the reprisal?

[John Gordon]

Clearly, the whistle-blower has to be protected right from the get-go; as soon as they come forward, they should have the opportunity to have someone with them, so that they're not standing alone before any superior in divulging information. I think they need that right from the start, so they themselves have their own witness of what they're bringing forward. It then has to be documented, it has to be carried through, and it has to be an open process in which they feel very comfortable.

With respect to representation, that's our job, and we do it very well; we appear before labour boards, and when we don't address the labour board we appear before the courts. We have the capacity to do all of those things in protecting the rights of members we represent. So the unions have to be recognized as an integral part of this whole process. If you want people to come forward.... This is something that we want as well: if there's wrongdoing in government, our members want this brought to task. It always reflects on them, because if they're working in a section of government or in procurement, or wherever there is wrongdoing, the fact that they're there, whether they actually witness it or not, puts the spotlight on them as individuals, and they feel bad about it. If they go out and they're with their friends and they mention their work, the friends say, oh, it's your place that was in the newspaper this week. It makes them feel like they're part of any wrongdoing. So they would rather be front and centre, and be able to bring it forward and have protection. Clearly, that's what needs to happen here.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Gordon.

Mr. Lukiwski.

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

I'll cede my time to Mr. Poilievre.

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

I'm curious why unions who represent employees would want to take away a new right for employees that this bill has created. The bill creates a tribunal of independent judges who are on the bench and who would comprise the tribunal to hear cases when necessary. This is an entirely new right. It doesn't take away any existing right because under existing bargaining agreements employees will still have the right to go the labour relations board. The only change is that they now have a choice; if the employee is suspicious of the labour relations board or does not believe that it is the correct setting for their case to be heard, they can now choose to go to the tribunal. That choice is entirely the employee's. I cannot imagine how it could possibly be good for your members for you to want to take away that choice. Why would you want to take away that choice from your members?

[Edith Bramwell, Legal advisor, Public Service Alliance of Canada]

If I could answer that question, it appears to be a choice, but I'm not sure it is.

First of all, I understand what you're saying about the fact that the tribunal is established to be staffed with judges who are obviously highly legally competent individuals.

To give a little perspective on this in terms of how it really works for our members, the courts themselves and the same judges who would be appointed to this tribunal constantly defer to the expertise of labour relations boards. It is a standard feature of a judicial review of a decision from a labour relations board to have the judges say they're not going to interfere in this or overturn it because they feel this board has the expertise. The intersection between that and the way in which wrongdoing actually plays out, and is experienced by our members in the workplace, is that reprisal and wrongdoing are very often done in ways that either touch on or really directly use articles of the collective agreement. I, as a wrongdoer, am a little bit worried that you, as a worker, might speak out against me, so I'm going to start docking your hours and I'm going to start playing with your vacation and I'm going to start doing things, all of which involve the collective agreement. Or maybe, if I'm setting up a scam, I'll encourage you to file false overtime and give me a cut of it. All of those things have happened and have been dealt with by the labour relations board already; they are scenarios in which the labour relations board has real expertise.

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

Why not just let the employees choose, then?

[Edith Bramwell]

It's not a choice. The problem is once you go to the tribunal your choice is over, and furthermore, the choice--

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

But you can choose at the beginning.

[Edith Bramwell]

The exclusive right of discipline is there in the legislation for the tribunal, and that really concerns us.

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

That's not true, because the labour relations board will still have all of the same powers that it currently has--

[Edith Bramwell]

It will not have the right to review discipline of a wrongdoer; that has been put in place for the tribunal.

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

--and it doesn't under Bill C-11.

[The Chair, Conservative, David Tilson]

Mr. Poilievre, I want to remind you, I'm up here, and you should address your comments through me to the witness, please, and the same.... I don't want to get into a debate or an argument here.

Go ahead.

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

Okay.

Under Bill C-11 the board does not have any special powers to discipline the wrongdoer; so we're not taking away a power that already exists, we're adding new powers to the tribunal to discipline.

Just to clarify once again, we have created a new choice for employees in Bill C-2 that allows them to decide if they wish to have their case heard by a tribunal of judges, and if they wish instead they can have it heard by a labour relations board. I still haven't heard a convincing argument from the panel as to why they would take away that choice from the employees.

[The Chair, Conservative, David Tilson]

Ms. Bramwell, and then Ms. Demers, please.

[Edith Bramwell]

With respect, I disagree with the position put forward. The section of Bill C-2 that's at issue is clause 219, and in our written brief I'll be addressing that in more detail.

[The Chair, Conservative, David Tilson]

Ms. Demers.

[Michèle Demers]

I just wanted to add to this debate that the Public Service Staff Relations Board does not have the authority to give out compensation for pain and suffering. You're talking about the authority of the board versus the new authority of the tribunal. What we're saying is the board has the experience of the labour world, so why not confer to them the authority to deal with reprisals and with awarding moneys for pain and suffering, and why not use the expertise and the knowledge of the people who are at the board currently? While these new judges have a lot of legal expertise, they do not have a lot of labour relations background and knowledge of how things actually occur on a day-to-day basis in the work lives of our members.

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

I think you made a convincing argument that the board should be given those additional powers if the employee chooses to go the route of the board, but I still think this is a GIC-appointed board--it's appointed directly by the cabinet, by the Prime Minister, effectively--and if I were an employee and I did not trust the government in power, I would not want to go to a group of GIC appointees and ask them to protect me or to discipline the wrongdoer. I would rather, personally, go to a group of judges.

My respectful argument is you have made the case and convinced me that the board should be given those powers as well, and then you could have the choice left in the hands of the employee. Would that be reasonable to you?

[Michèle Demers]

I'm a little bit disturbed by some of your comments because I feel that it's like a vote of non-confidence vis-à-vis the Public Service Staff Relations Board, or a lack of confidence in their ability to deal with this on a non-biased basis. That, to me, is very disturbing.

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

That's what whistle-blowers have told us.

I want also to clarify that the bill does not take away your right to represent your members in any of these settings. If the employee wants you involved, your unions will have that right.

[Michèle Demers]

That has to be spelled out, though. It's not good enough the way it is now.

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

Sure. If we can amend it to make it clearer, I think that's very reasonable.