Evidence of meeting #11 for Finance in the 41st Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A video is available from Parliament.
Liberal
President, Association of Justice Counsel
Exactly, and it's a concern, because we will have to live with those outcomes for years to come. So I take your point very seriously.
General Counsel, Legal Affairs, Professional Institute of the Public Service of Canada
It's interesting that this discussion around poor performers and pension issues, which I assume was the issue raised by the Taxpayers Federation—I didn't hear all of it. This legislation doesn't address any of that. Pensions are not subject to collective bargaining, for one. They are excluded by the Public Service Labour Relations Act, and this legislation does not change that.
Performance issues are in no way addressed by this legislation. There is already very limited recourse for members who are subject to discipline, demotion, or termination on the basis of bad performance. That's not been improved; there's no loophole for these people. If management is finding bad performance and addressing it, unions are concerned with ensuring that it's fair, but this piece of legislation before you right now doesn't change anything in that regard, and it doesn't address that. No economic argument is to be made by any of these changes that are being put forward, certainly not in that area.
Conservative
Andrew Saxton Conservative North Vancouver, BC
Thank you, Chair, and thanks to our witnesses for being here today.
Mr. Pruden, you've seen the collective bargaining process first-hand, both in the private and public sector, so I think you're qualified to comment on how this process can sometimes be very inefficient and time consuming. Measures in Bill C-4 streamline the collective bargaining process. For example, negotiations will now start exactly one year before the expiry of the current agreement and arbitration boards and public interest commissions will now be able to take into account an employee's overall benefit package when determining fair compensation.
Do you agree with changes like these that not only streamline the process but also bring them into line with the private sector and provincial government practices?
Vice-President, Labour Management Strategy, Postmedia Network Inc., As an Individual
The first thing would be the idea of starting bargaining a year before the expiry. I'm not sure why that's being done. I don't necessarily regard that as an improvement. My guess would be that not a lot of serious bargaining would take place in the first six months of that. Bargaining tends to heat up as you get closer to the expiry date. I'm not a fan of that one, I would have to say.
The second point is absolutely critical. What you're referring to there is the concept of what's called total compensation, so that you don't simply compare the wages in the bargaining unit to the private sector or to other types of jobs; you compare the pay, the benefits, the pension, the total compensation package. That's something that is really lacking from the point of view of interest arbitration cases, where arbitrators focus on issue by issue and they don't look at it in totality. Quite frankly, in the private sector, if we give somebody a dollar on benefits or a dollar on wages, it's still a dollar. We have to find a way to generate that dollar. Depending on the business we're in, it could mean we have to generate another $2 or $3 in revenue to provide that dollar. The line between a dollar on wages and a dollar on benefits or on pension is an artificial line, so I really believe in the total compensation model.
Prior to our panel, there was an individual who talked about the heavy-duty mechanic with PSAC in Moose Jaw versus the private sector equivalent. She noted that the PSAC heavy-duty mechanic was paid less than the private sector mechanic down the road. As a matter of fact, if you look at total compensation, my guess is the PSAC person is doing far better than the private sector person. That's one of the reasons there's no recruitment/retention problem in the private sector. So I'm a big fan of those changes for that reason.
Conservative
Andrew Saxton Conservative North Vancouver, BC
Thank you.
I'm interested in getting your thoughts on the amalgamation of the Public Service Labour Relations Board and the Public Service Staffing Tribunal into the new Public Service Labour Relations and Employment Board. This measure eliminates duplication, reduces costs, and essentially creates an efficient process of one grievance, one review.
Do you agree that this measure goes a long way in making the complaints and grievance processes more efficient for the public service?
Vice-President, Labour Management Strategy, Postmedia Network Inc., As an Individual
I absolutely agree with that. If you look at the grievance process, the more restrictions, the more avenues or choices of forums that you provide to individuals, the worse the process is. You wind up with a lot of grievances, and there could be a question as to whether it should go one route or another, whether it's a discrimination or a selection grievance or a grievance under the collective agreement. What you get is what you call “forum shopping”, where people will decide to go to one forum rather than another. Then you wind up with jurisdictional issues where you have lawyers on both sides arguing that, no, it shouldn't be in front of this tribunal but it should be in front of another tribunal. Creating a seamless adjudication process, whatever that is, is much more consistent with the private sector, but it's also far better management. I believe ultimately it's better for both parties.
Conservative
Andrew Saxton Conservative North Vancouver, BC
Very quickly, my last question is, do you have any comments on division 17, specifically how full disclosure around arbitration decisions will promote fairness and how, considering all elements of compensation, it is a fiscally responsible decision?
Vice-President, Labour Management Strategy, Postmedia Network Inc., As an Individual
Absolutely.
One of the things the parties can do with an arbitration decision is they can learn from the way arbitrators have interpreted the legislation, the way they've applied their thought processes to issues, whether it be total compensation or some other issue. I actually can't imagine an interest arbitration process without full reasons being provided.
Conservative
NDP
Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC
Thank you, Mr. Chair.
I want to thank all the witnesses for their presentations.
I will start with you, Ms. Blais. I asked someone this question this morning, and now I'm asking you. There's a similar case in Saskatchewan. The Saskatchewan Federation of Labour is challenging provisions set out by the Government of Saskatchewan. The Supreme Court will be hearing the case. And yet the government has decided to introduce similar provisions without knowing whether or not they are constitutional or what the Supreme Court will rule. We can expend a lot of energy debating the matter and creating tension within the public service, but we don't even know whether these provisions can be enforced.
I'd like to hear your thoughts on what I would call the irresponsible nature of the government's actions in this matter.
President, Association of Justice Counsel
If you don't mind, I'm going to respond in English as I'm more comfortable in that language.
President, Association of Justice Counsel
Your point is well taken and it goes back to due process. Again, the rush is inexplicable. We will have these precise issues discussed at the Supreme Court of Canada. Leave was granted, and they will be discussed at great length. To us, as lawyers and as rational people with common sense, rushing these changes in when very similar changes will be considered in due course defies common sense.
NDP
Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC
A number of legal experts have said these provisions could violate the Canadian Charter of Rights and Freedoms, specifically sections 2(b) and 2(d). I believe Ms. Roy made that point earlier.
In your expert opinion, do you think serious doubts about the constitutionality of these provisions are legitimate?
President, Association of Justice Counsel
Our concern is that these changes don't pass the smell test when it comes to meaningful consultations. The Supreme Court of Canada has upheld meaningful consultations as a concept in labour relations. How can you have an arbitrator whose hands are tied as to what he or she can consider? How could that be meaningful consultation? How can you force individuals to strike when a significant percentage of their members cannot participate in that strike? How is all of that meaningful?
The government holds all the keys to the legislative closet. They hold all those cards, to use that analogy. The whole point of having a choice and giving that choice to the unions in terms of what route they choose was to recognize that unions are stacked when they're dealing with the government. We're not dealing with Coca-Cola. Coca-Cola can't draft legislation and say, “Go back to work”, or, “Here's wage restraint”. This government has used those tools, and our hands are tied.
NDP
Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC
My next question is for Mr. Barrett.
I think this can be viewed as a political change. As I understand the bill, it would allow the government to trigger a labour dispute if the government deemed it politically or economically viable.
Is there any way to counter such an abuse of power, such strong-arming by the government?
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
I just want to follow up on some of the earlier comments in terms of the constitutionality, which affects your question, I think. The real abuse, as the Supreme Court of Canada has said, is that the Charter of Rights gives as least as much protection to Canadians as is afforded under international law protections of freedom of association, and under international law the right to strike is protected. That's an issue before the Supreme Court of Canada.
We also know two things from what the international law committee on freedom of association of the ILO has said on two critical aspects of this legislation. One of them I tried to bring to the committee's attention in my brief on page 7, and that is in relation to a case that went to the ILO out of Newfoundland, in which the legislation provided that if 50% were designated essential, there was a right to go to arbitration. The ILO ruled in that case that even at 50% that deprived workers of a meaningful right to bargain.
Second, a recent decision arose out of legislation the current government passed here in Ottawa, the Protecting Air Service Act. That legislation provided that the arbitrator had to be guided by certain one-sided criteria. It wasn't actually as clear as this legislation, which says you have to give predominant weight to the government's stated fiscal priorities and budgetary priorities. In that case just released this year, in September, I believe, the freedom of association committee said that you can't undermine the independence of arbitrators. If you take away people's right to strike, you have to give them an independent process.
Lastly, in 1987 Chief Justice Dickson, who was one of the judges back then who found the right to strike to be protected, specifically said in his decision—and I think this will be very influential for the Supreme Court of Canada—that where you provide that an arbitrator is bound to give greater weight to one factor than another, a factor that favours the employer, that cannot be justified as a reasonable restriction under the charter.
Conservative
November 26th, 2013 / 1:35 p.m.
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
Thank you, Mr. Chairman. I'll be sharing my time with Mr. Jean.
I welcome our witnesses.
Part of our discussion here that I keep coming back to, as I mentioned in my last questions, is the responsibility of legislators or governments to find balance, and I think it's the responsibility of unions as well to participate in that balance. It's sometimes difficult to do.
On this question, I want to go to Mr. Murray at the Frontier Centre for Public Policy. One of the statements made by one of the witnesses was that during the height of the economic downturn, we lost 400,000 or 500,000 jobs in a relatively short period of time, and yet the size of the civil service increased.
I think we're seeing that straight across the country, in that for every attempt to modernize and restructure the dispute resolution process to make it more cost-effective, quicker, and more in line with other jurisdictions, and every time anyone asks for change, there's always someone who says we shouldn't make that change.
What are other jurisdictions in Canada doing?
