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

[The Chair, Conservative, David Tilson]

I again repeat, because there is a time restraint, if you have any further comments as a result of the questions that were asked of you, feel free to put them in writing and send those comments to the committee, and we will distribute them to the members.

Thank you.

[The Chair, Conservative, David Tilson]

We'll call the meeting to order, please.

We have two groups of witnesses before us this morning. We have the Professional Institute of the Public Service of Canada, Michèle Demers, president, and Jamie Dunn, a negotiator. We have a second group, the Public Service Alliance of Canada, John Gordon, president, and Edith Bramwell, legal adviser.

Good morning to all of you. Each group has up to ten minutes if you have comments to make, and then committee members may have some comments.

[Michèle Demers, President, Professional Institute of the Public Service of Canada]

Thank you, Mr. Chairman.

I would like to thank the committee for adjusting the time allocated to us for this presentation.

For more than 85 years, the Professional Institute of the Public Service of Canada has been representing the interests of employees in the federal public service, a claim almost unparalleled in the sector or indeed in this nation. PIPSC now represents 50,000 professionals across the federal public sector and several provinces in almost every profession imaginable.

It is because of the Institute's unique role as a bargaining agent for professional public service employees that it is particularly positioned to comment on Bill C-2, the Federal Accountability Act. Thank you for allowing us this opportunity.

Accountability is the hallmark of professionals. Through their associations, societies and colleges, our members adhere to a code of ethics independent of their roles in the public service. These ethics sometimes force them to make difficult decisions when faced with situations in their work where wrongdoing may be present. Yet it is this characteristic of professionalism on which the government and Canadians depend to ensure the efficacy and security of the programs and services on which they rely.

As an omnibus bill, the Federal Accountability Act is comprehensive and complex and will have far-reaching effects. Therefore, it must be deliberated carefully and thoughtfully. Canadians and public service employees deserve no less. It is in this spirit that the Institute offers the following observations and recommendations.

There are many aspects of this legislation the institute welcomes and we've listed them in our brief. Improvements to protection for whistle-blowers are chief among them. However, there are still some areas of concern where we question the impact of this legislation on our members. Among the various changes, the proposed legislation creates a parliamentary budget officer to provide reliable advice and guidance to parliamentarians in understanding government spending proposals and estimates. Given the requirement under the Public Service Labour Relations Act for both arbitration and public interest commissions to give consideration to the financial situation and the policy of government, it is important that this information be available to bargaining agents for the purpose of making their arguments during the collective bargaining process. It is not clear when or if the information for this new office will be shared with the public. It's not sure if what will be shared will be executive summaries or estimated forecasts or the full disclosure of all the information.

Also, the bill brings changes to procedures for procurement, which will undoubtedly have an impact on the thousands of PIPS members directly involved in the process of government procurement. We welcome all measures that improve the transparency and reliability of these systems, but must ensure that our members and their knowledge and experience are not overlooked. You will find more information on these aspects on page 4 of our submission.

The institute's primary area of focus with respect to Bill C-2 must be the amendments to the legislative regime for the protection of whistle-blowers. Due to the limited time we have, we have focused our comments on six areas. You can follow in our submission beginning on page 5.

With respect to the purpose of the investigation, as stated in clause 204, the new subsection 26(1)of the Public Servants Disclosure Protection Act, the purpose of an investigation is still to bring wrongdoing to the attention of deputy heads and to make recommendations. The institute sees this as a flawed foundation for the disclosure process. While wrongdoing within departments certainly is the responsibility of deputy heads, the accountability for safeguarding public funds and programs rests with Parliament. As an agent of Parliament, the commissioner cannot be relegated to the role of departmental babysitter, and there can be no presumption of innocence for senior management. His or her purpose must be to act as the eyes and ears of Parliament and, by extension, the people of Canada. The commissioner, therefore, must have the ability to order chief executives to correct wrongdoing, in addition to bringing wrongdoing to the attention of Parliament.

With regard to the Public Service Disclosure Protection Tribunal, section 201 of Bill C-2—new clauses 20 to 21.9—calls for the creation of the Public Service Disclosure Protection Tribunal composed of Superior Court and retired Superior Court judges to hear reprisal complaints. Under Bill C-11 this role was vested in the Public Service Labour Relations Board.

From the Institute's perspective it is not apparent why there was a need to create this new body. Clearly the PSLRB already has the structure and expertise to deal with complaints of reprisals. In addition it is a forum with which the government and bargaining agents have a great deal of familiarity and is experienced in the customs and standards of labour law. It also offers a mediation service which is referred to in Bill C-2. Whatever the rationale for this new tribunal, it cannot be a reason to delay protection for whistleblowers.

Therefore, the Institute recommends that the Public Service Labour Relations Board be vested with the authority to deal with complaints of reprisals and given the necessary resources to fulfil that role.

Bill C-2 has not dealt with the shortcoming we addressed in all preceding whistleblower legislation; that is the lack of an explicit role for bargaining agents. While bargaining agents are included on a consultative basis in the development of the code of ethics as prescribed by Bill C-11, section 5(3), they still have no explicit standard under this act with respect to disclosures, with the exception of the generic representation described in the act.

It may be that this has been avoided so as to not open the door to bargaining agents disclosing on behalf of the members. The legislation is clear that this is not an acceptable method of disclosure. The issue is a really simple one. The bargaining agents of public service employees have a special role in the process of protecting whistleblowers and the integrity of the public service. They have legislated obligations to protect employees under a broad spectrum of circumstances and a duty to act with diligence and fairness. They have a legislative obligation to be consulted in organizational change in the public service. These obligations have expanded the role of bargaining agents and woven that role throughout the fabric of the work environment of government workers.

We are legally recognized partners with management in tending to the work lives of our members. It only makes sense to explicitly recognize that relationship in this legislation. Bargaining agents are not generic representatives of employees but live under a legislative umbrella making them partners in this issue.

Therefore the Institute recommends that the bill be amended to read:

Nothing in this legislation is to be interpreted so as to limit the right of employees to be represented by their bargaining agent at any time during the processes contained within this Act.

In clause 203, the new subsection 25(1), Bill C-2 proposes that the commissioner may provide access to legal counsel for advice only when public service employees are considering making a disclosure, or are involved in an investigation of a disclosure with a general cap of $1,500—which may be increased to $3,000 at the discretion of the commissioner.

Advice is not representation. Unionized public service employees have the benefit of the support of their bargaining agents; non-represented employees do not. Given the likelihood that powerful politicians and senior managers implicated in a disclosure would be supported either directly or indirectly by departmental or government counsel, are whistle-blowers then to stand alone before the onslaught of legal maneuvering and accusations? It is absolutely essential that employees taking the risk of blowing the whistle be provided with full and complete representation. To do otherwise is simply to put a price tag on accountability.

Therefore, the institute recommends that legal representation, not merely advice, be included in the resources made available to those involved in the disclosure of wrongdoing, and that the $1,500 and $3,000 limits be amended appropriately.

In clause 220, the new subsection 53(1), Bill C-2 prescribes a reward of up to $1,000 for whistle-blowers. In 2004 the institute conducted a wide survey of its membership on values and ethics in the public service. This survey was followed by focus groups from coast to coast. Overwhelmingly, the answer from our members was clear: no rewards. Several reasons for this response speak volumes as to the character of our members and the reality that they are your best resources in heightening the culture of ethics and “rightdoing” in government.

First, they want the work they do every day in providing and safeguarding services and programs for Canadians recognized and profiled—not on the rare occasions when things go wrong.

Am I out of time already?

[The Chair, Conservative, David Tilson]

No, but could you go quickly?

[Michèle Demers]

The institute recommends that clause 220 of Bill C-2 be deleted.

I'm sorry that this is amusing to you; it's very serious for us.

[The Chair, Conservative, David Tilson]

No, I didn't laugh, Madame Demers. I didn't laugh at all. I'm trying to move along and I've given you permission to finish. I did not laugh at all at what you said.

[Michèle Demers]

Thank you very much. Thank you.

The Institute's major concern respecting the government's strategy respecting passage of the Federal Accountability Act is the delay in proclaiming Bill C-11. The Federal Accountability Act may take a long time to put in place and will represent a major delay in the protections for which we have been fighting for over 15 years.

The government's argument for their strategy is that they don't want to put in place the apparatus for Bill C-11 only to have to perform a major overhaul once Bill C-2 is passed. In fact, with the exception of the tribunal, there are very few structural differences between Bill C-11 and the amendments under Bill C-2.

Since the Public Service Labour Relations Board is already in existence for its usual work, there would be nothing to tear down and replace with the creation of the tribunal, only the need to transfer any outstanding files. In addition, the details of putting the tribunal in place and communicating and operationalizing the complexities of its processes will further delay the full implementation of these protections. This is not an acceptable argument for a delay in implementing these protections.

Therefore, the Institute recommends the immediate proclamation of Bill C-11 so that public service employees have protections in place now.

In conclusion, the main concern posed by the Federal Accountability Act for the institute is, by far, the delay this strategy represents in seeing protections for whistle-blowers put in place. Bill C-2 is ambitious omnibus legislation and should not stand in the way of the long-awaited protections of our members who need to disclose wrongdoing in government. The government should proclaim Bill C-11 and amend it through Bill C-2.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Madame Demers.

Mr. Gordon.

[John Gordon, President, Public Service Alliance of Canada]

Thank you.

The Public Service Alliance of Canada wishes to thank all members of the committee for the opportunity to appear on Bill C-2. This legislation will touch the working lives of tens of thousands of public sector workers who are members of the Public Service Alliance of Canada.

The PSAC has called for legislation that provides guidance, support, and protection for public sector workers who wish to speak out against wrongdoing. For over three decades we've made extensive submissions and taken every opportunity that we can to address protection for public sector workers who wish to serve the public interest by speaking out against wrongdoing in the public service.

While Bill C-2 seeks to amend a number of pieces of legislation in areas of concern such as conflict of interest rules, election financing, and procurement, during this statement I will concentrate on the provisions dealing with whistle-blowing.

We believe that Bill C-2 falls seriously short in delivering in key areas such as protection against reprisals. In particular, while the PSAC acknowledges that there has been an attempt to address some of the Bill C-11 shortcomings, we do not believe that the amendments go far enough in addressing our concerns.

The Public Servants Disclosure Protection Tribunal: We have long taken the position that our members ought to have the right to pursue issues related to whistle-blowing through their collective agreements and indeed have negotiated clauses around whistle-blower protection in some of our collective agreements. Given this, the independent tribunal created by Bill C-2 duplicates functions that are already performed by labour relations boards; it is unlikely that the tribunal will be able to match the labour relations expertise of those bodies, which is repeatedly deferred to by the courts. Yet Bill C-2 requires a tribunal to deal with sensitive matters of discipline and on-the-job reprisals. We question the need for the tribunal to deal with matters already addressed by other boards.

When it comes to pain and suffering, damages awarded by the tribunal are capped at $10,000, whereas the Canadian Human Rights Act has a limit of $20,000. We are also concerned that the bill does not contemplate systemic remedies or orders relating to terms and conditions of employment other than money. The sole exception to this is the power to order reinstatement. We do not believe that the tribunal can fulfill its mandate without authority to change departmental practices and reporting structures. The PSAC is also profoundly concerned by the tribunal's power to order damages in lieu of reinstatement. The relationship of trust between the parties cannot be restored.

It is our position that those who come forward despite reprisals should never have to pay for doing so by losing their livelihoods. It is unclear what the outcome will be if the tribunal finds that the action isn't a reprisal but is nonetheless clearly grievable as an alleged violation of the collective agreement. There needs to be greater specificity as to how the jurisdiction of the tribunal and labour relations boards would overlap. Powers are needed to give whistle-blowers access to interim reinstatement when they come forward to make disclosure.

Furthermore, not only is the bill silent on the right to choose a representative in reprisal complaints, but the amount of money provided for access to legal advice is inadequate. Given the sensitive and confidential information before the commissioner and the tribunal, union responsibilities in respect of this information must be clearly established.

Finally, we are concerned by the new tribunal's exclusive authority to discipline for wrongdoing. The right to grieve discipline is fundamental in the unionized setting. In the past we have seen workers scapegoated for the wrongdoings of managers. The recourse of these collateral victims of wrongdoing has always been the grievance process. All grievances against discipline must continue to be reviewable by labour relations boards.

On the issue of reasonable grounds, the right to file a complaint should not include the requirement for reasonable grounds to believe. In allowing commissioners to refuse to deal with complaints not filed in good faith, the stage is set for needless preliminary objections. Similar language in Bill C-11 was the subject of vigorous union opposition. This language opens the door to stall tactics and switches the scrutiny from the wrongdoer to the whistle-blower. No evidence from the Public Service Integrity Officer suggests that this approach is warranted.

In Britain, this approach has been sharply criticized in the Shipman inquiry report. In our opinion, reviewing the substance of a complaint determines adequately whether the complaint has merit.

On awards for whistle-blowing, the PSAC is fundamentally opposed to the provision of cash awards for whistle-blowing. They are at best unnecessary, and at worst are harmful to whistle-blowers. Paying people to come forward allows abuse and leaves all whistle-blowers open to unfair insinuation. Rewards make whistle-blowers vulnerable to attacks that they are motivated by greed. What is needed to protect whistle-blowers is real compensation for financial losses and real protection from reprisals.

In regard to reprisal no longer defined as wrongdoing, under both previous unenacted whistle-blowing bills--Bill C-25 and Bill C-11--a wrongdoing included a reprisal. Subclause 197(2) of Bill C-2 amends section 8 of Bill C-11, the Public Servants Disclosure Protection Act, by deleting paragraph 8(f), which brought reprisals under the wrongdoing umbrella. The change is entirely inconsistent with Bill C-2's stated objectives.

Finally, the bill should include all public services. The PSAC criticized previous proposed legislation for not covering all federal public sector workers. We were particularly concerned about the full exemption of the Canadian Forces, the CSE, and CSIS. Bill C-2 continues the exemption, and we believe this to be unnecessary.

I'm not going to read the recommendations. They are there before you. But we'll also be sending you more detailed information on the recommendations in a brief that will come to you as soon as we can.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Thank you for your presentations. We will have some questions from members of the committee.

Mr. Tonks has some comments.

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

Thank you, Mr. Chairman, and thank you to the witnesses for being here.

Ms. Demers, you have pointed out on behalf of your association, on page 8, with respect to the implications of delaying Bill C-11:

...with the exception of the Tribunal, there are very few structural differences between Bill C-11 and the amendments under Bill C-2.

It is on this basis that you would recommend we go ahead with Bill C-11.

Mr. Gordon, you have indicated that you also have problems with respect to the tribunal. Both of you put forward the fact that the labour relations board would be better vested with the authorities, that in fact you would like to see the accountability flow through. Would you agree with that particular position that Ms. Demers has taken with respect to passing Bill C-11?

[John Gordon]

We feel that Bill C-11 doesn't go far enough, and we look for stronger protections. We have negotiated collective agreements that allow us to address the issues on behalf of our members. So the fact of the matter is that, concerning the labour boards in this bill that's coming up--and Bill C-11 doesn't have it either--we feel that we should have the protections built into the whistle-blowing legislation allowing us to go to the labour relations board, because that's where our collective agreement prevails.

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

Ms. Demers, would you like to, in rejoinder, make a further comment on that, in view of that?

[Michèle Demers]

Yes. We are a labour organization. We have a tribunal that has been in place for a long time that has dealt with situations like reprisals or other forms of discipline in the past. The new tribunal that's being created poses many questions for us. It's a judicial process, and we have labour relations officers who represent our members in labour relations situations. Everything is interlinked in my comments here, but the advice that is being provided for by legal counsel--$1,500, or three to five minutes--then leaves the person in limbo with respect to representation.

If you look at the list of people in attendance at the tribunal in the legislation, which was pointed out to me very recently, you have the employer, the former employer, the legal counsel of the employer.... Everything is stacked on one side. But the employee will get 15 minutes of legal advice, and then what? There is nothing that demonstrates what the role of the bargaining agent is. There is nothing that demonstrates what the process will be and the representation that this employee will be entitled to should he or she be subject to reprisal. So there's a big vacuum of process there, and of role defining, in our point of view, with respect to the tribunal.

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

Thank you.

[The Chair, Conservative, David Tilson]

Madame Lavallée.

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

First, I would like to congratulate Mr. Gordon for his election as President of the Public Service Alliance of Canada. My colleagues and I would like to apologize to the witnesses for the very short time that they were given. In my opinion, all the representatives of your organization deserved more time to express their views.

The idea for the Accountability Act came on the heels of the sponsorship scandal. Later on, last November, there was Mr. Justice Gomery's report.

One can say that you are the people most directly affected by this issue. Based on your knowledge of the workplace in the public service, I would like you to tell me what changes this bill will bring about. In fact, I would like you to tell me whether this bill could have prevented the sponsorship scandal had it been implemented 10 or so years ago.

[John Gordon]

I think if there had been a strength in whistle-blowing protection for our members, there's a possibility that all of them--not all of them, but a good 100,000 of them working in the public service in various areas--could have uncovered issues that were going on in government long before. But they may or may not have had the ability to come forward.

Obviously we've been fighting for protection for, as I said, three decades on this, and I think what we need is strong whistle-blowing legislation with strong protection for people who bring it. These are the key areas that we feel are absolutely necessary.

Would it have prevented the sponsorship scandal? With or without a crystal ball gaze, I think there may have been some indications of something going wrong had we had some ability to come forward without reprisal.

[Michèle Demers]

In my opinion, when these incidents took place, mechanisms had been put in place but were not in force. There weren't sufficiently strict controls over the way public funds were spent or the way contracts were awarded. I think this bill provides for better control measures, which is reassuring for the people we represent. Indeed, like it or not, the sponsorship scandal had an adverse effect on them, even if the direct decisions and directives were issued by people at much higher levels than themselves.

What is in fact new in this bill is that it makes it illegal to engage in reprisals against people who denounce those engaged in wrongdoing. In the final analysis, it gives public service employees and senior management mechanisms enabling them to exercise better control over the use of public funds.

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

Do you think that this bill will mean that a situation like the sponsorship scandal could not occur again?

[Michèle Demers]

In my opinion, public service employees regardless of their level are essentially honest people. There are bad seeds everywhere and there always will be. To avoid that kind of situation what you need is a sufficient number of control mechanisms that are applied.

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

What do you think of this, Mr. Gordon?

[John Gordon]

I don't think there's any guarantee that this bill will do that. I say this because our members are very skeptical of government and how the system works with respect to them bringing forward issues they see at the workplace.

Given that they know they have a collective agreement and their collective agreement is not going to come into play if this bill is enacted, what they will see is that you've taken away a protection they already have, however minimal, and put it into this tribunal, which is an unknown area. They believe that they should be dealt with through the Labour Relations Board system and we can represent them in that respect.

The thing is, if the bill is designed to try to assist getting information out there so that sponsorship scandals will not take place, I'm not so sure that the people are going to feel very comfortable with this legislation as it presently is.

[Jamie Dunn, Negotiator, Professional Institute of the Public Service of Canada]

Can I just add something, Mr. Chair?

There are two issues. Primarily from our members' perspective, worried about protection, you have to look at the Allan Cutler situation to make that judgment. If there had been a process whereby Mr. Culter could have been advised how to safely disclose, the obligation to hear that disclosure, an outside agent, an agent of Parliament to hear it, and then protection from reprisal and a prohibition on reprisal, absolutely, from our perspective that's a protection. If those protections discourage wrongdoing then certainly they go a long way.

The other piece of this bill that is aside from whistle-blowing, but definitely plays in this issue, is the changes to the report to the procurement process. The sponsorship scandal was a procurement issue. Our concern and the concern of our members in procurement is that through the certification process and other processes, responsibility is being downloaded to the lowest level. When procurement wrongdoing happens, whether or not it's instigated at a higher level, the blame will rest on our members.

Right now in the procurement area there's something like a 40% shortfall in staffing. Not only are we putting in place these huge changes, but there may not be enough people to handle these changes. You can't build in an assumption of innocence at the top levels. If you're going to bring in accountability, it has to be reciprocal throughout the ranks.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Dewar.