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

[The Chair, Conservative, David Tilson]

Thank you, Mr. Poilievre.

That concludes the first seven-minute round.

Ms. Jennings.

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

How much time do I have, Mr. Chairman?

[The Chair, Conservative, David Tilson]

Five minutes.

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

Thank you very much for your presentations. I would like to focus on the issue of the Public Service Labour Relations Board and its great expertise as opposed to a new tribunal.

Despite the questions and comments of some of my colleagues, both organizations have pointed out on numerous occasions that all the required expertise already exists within the Public Service Labour Relations Board. Although these are appointments, if I'm not mistaken, these appointments are done in consultation with the employer, the unions, the professional associations, etc. and the people appointed have to have great expertise in labour relations. They might be lawyers who practice in the field of labour relations, and so forth. Therefore, these are people who have academic training or professional training in this field, or both.

In addition, if I understood correctly, you are saying that we should give the Public Service Labour Relations Board the powers that Bill C-2 gives to the new tribunal as well as certain new powers that you've suggested or recommended. Therefore, an employee would have a real choice, because he would have assurance that he's dealing with people who have expertise in the area of labour relations. If we were to create a new tribunal made up of judges who don't necessarily have expertise in this area, the employee wouldn't have much of a choice. In a way, this choice would be illusory.

It's a sleight of hand.

Am I understanding your positions clearly?

[John Gordon]

I think you've captured our position very clearly. That's exactly where we feel they need to go.

The board is an experienced body and the people who are appointed to that board come from a variety of different backgrounds, mostly labour relations, either legal or working for unions or other bodies. They come from the employer side as well, who have worked in these areas. It has a wide range of abilities.

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

So in fact the insinuation some might make that because the members of that commission are GIC appointments might be a sleight of hand as well, or unfair, because those people are appointed following recommendations and consultations with the bargaining units and with the employer. So it's not some politician who takes a name out of a hat and says “I'm going to appoint my buddy, my friend, or whatever.” It's the bargaining units and the employer who put forward the names. Is that correct?

[John Gordon]

That's how I understand it happens. We make recommendations. They have a list to pick from, and they pick from the list.

[Edith Bramwell]

Further, the bill itself provides for increased scrutiny of all those appointments, which would address the issues that are being raised.

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

Exactly. So notwithstanding some of the comments you've heard from some of the members of this committee, you continue to maintain that the best possible choice for employees, for their protection if they whistle-blow, would be to take the powers that Bill C-2 proposes for a new tribunal, and rather than create the new tribunal, give those powers to the existing Canadian commission.

[John Gordon]

The Public Service Labour Relations--

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

Yes. I don't know the name in English.

[Michèle Demers]

You may want to invite representatives or the chairman of the Public Service Staff Relations Board as a witness to explain their role and their knowledge of the milieu.

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

If I have 30 seconds, I would simply ask whether the commission is on the list of witnesses.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Petit.

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

My question is for whichever witness can answer.

You've said that there were two types of whistleblower. The one that you described is always from the top down or the bottom up: the employee is opposed to his immediate superior. This is the type of whistleblower we're used to. There's also a horizontal type of whistleblowing: an employee will blow the whistle on a colleague who is engaged in wrongdoing.

You represent both people. One of them has committed wrongdoing that is sufficiently serious for the other to file a complaint. First of all, how can you defend both of these people, since you are the bargaining agent for both? Secondly, how can you direct them to the Public Service Labour Relations Board when decisions handed down by the Montreal Bar Association have shown that judges at the Quebec board, undoubtedly like those of the federal board, do not have the same kind of independence as judges in a tribunal such as the Superior Court? In Quebec, we have this important problem, and it is currently moving to other provinces.

Given that Bill C-2 provides for the creation of an independent tribunal, wouldn't it be better to opt for this independent tribunal which has already passed the test of the BNA Act, when labour relations boards, even that of Quebec, because they are headed by administrative judges, have serious problems of independence and are even challenged?

So my question is in two parts. First of all, how can you represent both people? Secondly, why don't you agree with the creation of an independent tribunal? Doesn't Bill C-2 solve the problem of the independence of the Public Service Labour Relations Board?

[John Gordon]

Quite frankly, as a labour organization, we already do that. On questions of harassment, when there's harassment in the workplace, we have a responsibility to get to the bottom of it and to get the employer to investigate the harassment, and then disciplinary action is sometimes taken. It doesn't take away the responsibility for the union to represent a person on that discipline, and it comes through the penalty that's put out.

Under the tribunal, if they issue a penalty, as I understand it, there's no recourse and there's no recourse to a redress mechanism. If the penalty meted out by the panel of three judges is felt to be too severe, there's no redress mechanism to cover that.

[Jamie Dunn]

I would add that this is the difficulty we're facing with this new model, represented by the tribunal. On issues of harassment, a complaint is made and there's an investigation. If both were members, we would represent them both in the investigation. There are findings in the investigation and then management disciplines. That discipline can be grieved and is heard before the PSLRB, and there's then a process of judicial review.

What we're faced with under this model is this inquisitorial board hears the issue, decides if there's been a reprisal, and then disciplines. The person disciplined is then faced with a judicial review process. It is a more difficult process and a much higher test, criticizing the Superior Court judges, than simply going to the Public Service Labour Relations Board or through the grievance process. We're faced with two completely different models.

I don't think anyone's trying to say that reprisals are worse than harassment. I think harassment is equally horrible. But we're faced with this new model and this idea of how to deal with the disciplines that flow out of it.

[The Chair, Conservative, David Tilson]

Thank you.

Madame Lavallée.

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

I don't think that giving workers a choice is necessarily the best solution. The Public Service Staff Relations Board does its job very well and I do not see why it could not continue to do so.

Mr. Poilievre stated that an individual who had a dispute with the government would not trust the Labour Relations Board because its members had been appointed by the government. I do not see how the individual would have more confidence in another tribunal whose judges would also be appointed by the government.

I would like to go back to the section dealing with the lobbying. Prior to your appearance, we heard from the Registrar of Lobbyists and other individuals interested in the topic of lobbying. The registrar presented us with an interesting argument that we often hear.

According to this argument, the fact that all activities pursued by every lobbyist must be reported and made public could deter public servants, professionals or non-professionals from making, keeping and establishing contacts with lobbyists, from answering their questions or meeting with them for fear of being named in their reports. Even if they have done absolutely nothing to warrant any criticism, even if everything that they have done is perfectly legal, they could decide, in order to avoid finding themselves in a situation that could eventually be made public, to not answer this type of telephone call or e-mail or to not meet with lobbyists or their representatives.

I would like to know what you think about this and whether or not these fears are real or faceless.

[John Gordon]

Number one, I don't think our members are essentially at the level to be meeting the lobbyists. It would normally be people who are more senior than them, because our members implement decisions and, at a very minuscule level, make decisions. We were listening to the lobby group this morning, and they were talking about decisions at higher levels than our members would make.

I think there should be a lot more openness, but I'm not going to speak to that issue, other than to say that our members, generally speaking, are at a very low level of decision-making, more in line with implementing the decisions. Quite frankly, implementing the decisions taken by senior managers leads to the whole issue of whistle-blowing because if they're asked to do that and they recognize it as being wrong, they have to have a place to go. Obviously it's not going to be to one of the persons telling them to do it.

[Michèle Demers]

I share Mr. Gordon's opinion on the matter, with a few minor differences. Lobbyists will not try to meet with our members in order to influence them. I do not see who in the public service could be approached by lobbyists. I do not believe that that would apply to our members.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lukiwski.

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

Thank you, Mr. Chair.

I have a quick comment first, just to add my voice to this debate on whether an independent tribunal is necessary, as opposed to the current system with the labour relations board. I echo my colleagues' comments, because I honestly don't see where the problem is in allowing your members to have a choice.

It would appear to me that if, as you suggest--and you may be quite correct--because of the expertise contained in the labour relations board, we gave them, as you suggested in your amendment, more authority to deal with complaints, I still don't see where the problem is in allowing a member to make the choice themselves. We have had some whistle-blowers come to us and suggest this very thing that we've included in the act. It would appear to me that if your members are asking for it, then you should at least consider it.

I would also suggest that if, in fact, what you're suggesting is true--that the labour relations board is best qualified to deal with these issues--the majority of your members would automatically choose to go before them rather than a tribunal. So I just don't see where the problem is in allowing your members to have a choice, but again that's just my comment. You've made your case, and I'll wait for Ms. Bramwell's written argument on why you believe your position is correct.

I have a specific question and then I have an overriding comment I'd like you both to respond to.

Ms. Demers, you have stated that in the section on access to legal counsel, the $1,500 to $3,000 limits are too low, but you haven't really suggested an amount. You say they should be amended appropriately, whereas PSAC has suggested that the limit should go up to $10,000. Did you have any figure in mind that you think would be suitable for employees?

[Michèle Demers]

I don't have a figure to suggest to you, but I think it should be in accordance with the merit of the case and the necessity for legal advice and representation. It shouldn't be an arbitrary cap of $1,500.

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

Right. You're quite clear that that's too low, and again, PSAC has said it's too low as well, but they're saying that $10,000 be a cap. You're suggesting that from time to time a case may come forward where legal advice far exceeds $10,000 and that there be no top-end cap?