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.
Conservative
The Chair Conservative James Rajotte
Do you have a comment on the issue of whether the definition of essential services still then binds the government if this bill passes? You've heard clearly from at least two witnesses today, and my understanding is that they would say that definition is no longer applied if this legislation passes.
Do you have a comment on that?
Conservative
The Chair Conservative James Rajotte
All right. We are unfortunately out of time for this panel.
I want to thank all of our witnesses for being here, for a very interesting, lively discussion. We appreciate that very much.
Colleagues, we will suspend for a couple of minutes and bring the next panel forward. Thank you.
Conservative
The Chair Conservative James Rajotte
Order. This is Tuesday, November 26, 2013. This is our second panel here today.
First of all, we have, as an individual witness, Mr. Steven Barrett, managing partner at Sack Goldblatt Mitchell. Welcome to the committee.
We have, from the Association of Justice Counsel, the president, Ms. Lisa Blais. Welcome. Bienvenue.
From the Professional Institute of the Public Service of Canada, we have the general counsel, legal affairs, Madame Isabelle Roy. Bienvenue.
We have three by video conference, so we'll do our best to manage this.
We have, first of all, from Guelph, Fair Pensions for All, Mr. Gareth Neilson. Mr. Neilson, can you hear me okay?
Gareth Neilson Director of Communications, Fair Pensions for All
Yes, sir, I can. Thank you.
Conservative
The Chair Conservative James Rajotte
Okay, thank you.
By video conference from Edmonton, my hometown, we have Mr. Robert Murray, vice-president for the Frontier Centre for Public Policy. Mr. Murray, can you hear me okay?
Robert Murray Vice-President, Research, Frontier Centre for Public Policy
Yes, sir, I can.
Conservative
The Chair Conservative James Rajotte
Okay. Welcome.
Lastly, from Windsor, Ontario, by video conference we have Mr. Robert Pruden, vice-president, labour management strategy.
Welcome. Can you hear me okay, Mr. Pruden?
Robert Pruden Vice-President, Labour Management Strategy, Postmedia Network Inc., As an Individual
Yes, I can, thank you.
Conservative
The Chair Conservative James Rajotte
Thank you all for being with us here. You each have five minutes maximum for an opening statement, and then you'll have questions from as many members as possible.
We'll begin with Mr. Barrett, please.
Steven Barrett Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
Thank you
Thank you for inviting me to appear.
I've been a labour lawyer involved in collective bargaining for government employees in the broader public sector for almost 30 years. I also have considerable experience in appearing before the Supreme Court of Canada in Charter of Rights cases. I hope my remarks will be helpful to the committee.
I did watch the webcast of the earlier hour and a half, so I hope I won't be unduly repetitive.
Parliamentary tradition, which has been followed and respected historically over the past 50 or so years, by both federal Liberal and Conservative governments, has been to propose legislative changes to the rules governing collective bargaining for federal government employees only after expert independent study and widespread consultation. As the Canadian Bar Association pointed out in a submission to this committee, proposing and then burying fundamental changes to collective bargaining in omnibus legislation hardly respects this tradition.
But this isn't just about respect for tradition and democracy. It's also about widespread recognition that in labour relations, given both the sensitivity of the collective bargaining balance and the importance of the employee and employer interests involved—as well as the public interest—changes to the existing scheme should only be made after receiving expert independent advice, ensuring widespread meaningful input, comment, and debate. This is especially the case, members of the committee, where one of the parties to the collective bargaining process—the employer—has, respectfully, an inherent conflict of interest as both employer and legislator, and so normally wants to ensure that it isn't acting and doesn't appear to be acting in a one-sided manner.
For this reason, while you can never guarantee a mutually acceptable agreement on labour law reform, and government obviously has the right ultimately to act, the Canadian tradition has been for a good faith effort to be made. Against that standard, Bill C-4 falls well short—at least the labour relations we're talking about. For the first time in the history of legislative reform to federal public service collective bargaining legislation, the government, as employer, is proposing to use its legislative powers to unilaterally alter a long-standing balance in the legislation without any prior consultation, study, or even a half-hearted attempt at building and achieving consensus.
Now, it's an axiom in labour relations, born of real-life experience, that balance and mutual acceptability is of utmost importance to collective bargaining stability, industrial peace, harmony in the workplace, and basic fairness—all goals that we share.
Here we have the employer using the government's legislative authority to undo and upset the rules that the parties have lived with for almost 50 years, since 1967, especially when it comes to choice of procedure, a prominent feature of the federal model: interest arbitration or strike conciliation. Parliament decided on a choice of procedures model, which balances respect for the right to strike with the recognition that many public servants are averse to what they consider to be the adversarial, more militant strike/lockout method, so that arbitration was a sensible and constructive choice to give them for resolving disputes.
No one is suggesting that the existing rules are perfect. Some bargaining agents believe that certain rules, including the government's power that it already has to determine unilaterally the level of essential services, are problematic. Others believe the Canada Labour Code should apply. And of course the employer no doubt has changes that it would like to see made.
No one is opposed to true and authentic modernization or to balanced changes. But if change is to be made, it ought to be carefully thought out. As detailed in my brief and in the submissions of many others, the proposed legislation can only be described as an attempt by one party to the bargaining process to rewrite the rules of the game in as lopsided a manner as could be conceived.
If we were in a schoolyard, it would be viewed as bullying of the worst kind. Closer to home, it's like Senator Duffy being permitted to rewrite and legislate the Senate's residency requirements.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
The absence of any kind of balance and any attempt to achieve mutual acceptability and consensus is corrosive of good labour relations and is likely to lead to substantial labour relations workplace instability. We know from bitter experience that employees who believe that they are working under unfair and arbitrary rules for determining their employment conditions will inevitably find ways to express their displeasure and unhappiness, resulting in low morale and lost productivity.
The proposed legislation stacks the deck in favour of the employer and does so in many ways. I want to focus quickly on three of the most important.
First, it stacks the deck by providing for unreviewable designation of essential service work.
Conservative
The Chair Conservative James Rajotte
Mr. Barrett, we're at five minutes. I do want to get to members' questions after the presentation, so if you can wrap up, it would be very much appreciated.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
I'll wrap up.
Second, it eliminates arbitration unless 80% of employees are designated essential, and therefore it potentially eviscerates any meaningful right to bargain.
Third, even where 80% are designated, arbitration boards are to give preponderant weight to the government-stated budgetary policy.
I'm sure in the questions I'll have time to talk about the international case law on this and the Supreme Court of Canada's view.
Let me conclude by simply saying that, ironically, just two years ago, Parliament received the report of the five-year review, and after receiving broad input from stakeholders and experts, it concluded, when it came to the current collective bargaining rule, that “generally speaking the legislation adequately supports collaborative labour-management relations”. There was no suggestion from the committee or for that matter from the government itself that a complete and unilateral overhaul was justified, necessary, or appropriate.
I look forward to your questions.
Conservative
The Chair Conservative James Rajotte
Thank you for your presentation.
Next we'll hear from Ms. Blais, please.
Lisa Blais President, Association of Justice Counsel
Thank you. I want to thank the committee for this opportunity.
The AJC is the exclusive bargaining agent for 2,700 federal lawyers. We're prosecutors, we're counsel at the Department of Justice, and we also provide legal services to various tribunals and agencies.
Before becoming a so-called union boss, I was a drug prosecutor enforcing the government's tough on crime legislation. I will be returning to my prosecutorial role at the end of my term with the AJC.
To begin, I would be remiss as the representative of federal lawyers if I didn't address the issue of due process. I know you've heard a lot on that, but it bears repeating because it's so fundamental to who we are as Canadians. Make no mistake, using massive budgetary omnibus bills to significantly alter several long-standing and complex pieces of legislation is an assault on due process.
Bill C-4 contains many elements that have absolutely nothing to do with budgets or finances. Respectfully, we question how a bill that is 308 pages long, contains 472 separate clauses, affects at least 29 different pieces of legislation, and amends or repeals 70 legislative measures can seriously be considered a true budget bill, or seriously considered at all, folks, in light of time constraints and debate limits imposed on this entire process.
We know that omnibus budget bills are not new. In 1994, then MP Stephen Harper criticized such a bill—which was 21 pages and entirely related to budgets—as being, and I quote, “so diverse that a single vote on the content would put members in conflict with their own principles”.
The scope and breadth of Bill C-4 negates your ability to even know its full impact. Further, division 17 of the bill brings drastic amendments to the PSLRA, a fundamental piece of legislation, albeit not perfect, that has been a reliable tool for labour relations for the past 50 years. These amendments, make no mistake, denude employee protections and powers. I will elaborate upon that in a moment.
Due process has taken a hit, folks, since the law reform commission was forced to close its doors in 2006. Never have we needed more such an informed and independent voice. Contrary to past practice, these amendments were crafted without any consultation with any stakeholder—not with unions, not with labour law specialists, not with academics, not with anyone.
We question this bill's constitutionality. Advanced consultations would have minimized the vulnerability of these changes to challenges under paragraphs 2(b) and (d) of the Canadian Charter of Rights and Freedoms. Our highest court has confirmed on several occasions that collective bargaining is the fundamental right of every Canadian employee. This right can be limited only minimally, and only in exceptional circumstances. This bill bestows upon the employer the exclusive right to determine who can arbitrate, who can strike, who is essential.
Further, when a union is allowed to participate in interest arbitration, the adjudicator's ability to consider relevant factors has been severely constrained to the point where it can be argued that the outcome is already determined. Bill C-4 contravenes several of our international labour obligations as well.
Let's talk about costs. You are a finance committee, and that's the lens through which you are all tasked to look. For a government that constantly trumpets its desire to streamline operations and save money, Bill C-4 will have the opposite effect. Let me tell you why. Changes to the PSLRA remove the workers' right to choose between interest arbitration and strike action. What does that mean? Forcing federal workers to strike rather than go the interest arbitration route will affect the services Canadians receive and serve to frustrate labour relations even further.
We need only remember the Quebec prosecutors and civil lawyers who were recently forced into this exact situation.
President, Association of Justice Counsel
The latter had the right to strike forced upon them in 2003 by the Charest government as a way to avoid binding arbitration. It culminated in strike action by almost 1,500 Quebec government lawyers in February 2011. The situation broke the bond of trust between these lawyers and the government and jeopardized many serious criminal prosecutions.
On a completely practical level, how can the government save money by forcing employees to strike? I just referenced the importance of preserving the right to strike. The point is, Bill C-4 will force some of us to strike. Let's remember that when unions were first given this choice in 1967, it was meant to address the imbalance of power in the federal public sector context. Arbitration has consistently been the preferred route for the AJC and for most public sector unions. This civilized approach to labour disputes preserves services to the public and ensures federal workers and their families are treated with respect, dignity, and fairness.
President, Association of Justice Counsel
Two more points.
The amendments will overcomplicate the grievance process. You now have a situation where you cannot file group complaints when you're looking for retroactive remedies, so you're going to have multiple and duplicated services.
Finally, the chairman of the Labour Relations Board will now have the power to review the decision of the arbitrator. How can this be streamlined? How can this be efficient when you're adding an extra level?
President, Association of Justice Counsel
So this is modernization? Hardly. This bill takes labour relations back decades. From a cost analysis perspective—
President, Association of Justice Counsel
—it is difficult to see how this scheme can save taxpayers any money.
Thank you.