Human Resources Committee on Feb. 26th, 2018

[The Chair, Liberal, Bryan May]

Good evening, everybody.

Pursuant to the order of reference of Monday, January 29, 2018, the committee is resuming its consideration of Bill C-65, an act to amend the Canada Labour Code in regard to harassment and violence, the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017, No. 1.

Today the committee will hear from witnesses on the subject of the work environment and the resources available to the employees of the Parliament of Canada.

We're very pleased to be joined by a great panel of witnesses here this evening. From the Canadian Association of Professional Employees, we have Greg Phillips, president, and Colleen Bauman, a partner in Goldblatt Partners LLP; from the United Food and Commercial Workers Canada Local 232, Nasha Brownridge, president, and Nina Amrov, chief steward; and from the Union of Safety and Justice Employees, Bethany Sutton, interim director, policy, projects, and media, and Nancy Peckford, senior policy adviser.

Welcome to you all, and thank you.

Each organization will have seven minutes for opening statements.

We're going to start off with the Canadian Association of Professional Employees. Greg Phillips and Colleen Bauman, the next seven minutes are yours.

[Greg Phillips, President, Canadian Association of Professional Employees]

Honourable members of Parliament, we would like to thank the members of this committee for inviting us to appear so that we might voice our opinion with respect to Bill C-65.

My name is Greg Phillips. I'm the president of the Canadian Association of Professional Employees, CAPE. CAPE represents some 14,000 public service employees. The vast majority of our members are economists and social science workers who advise the government on public policy. We also represent the translators and interpreters who work every day to preserve and promote Canada's linguistic duality. Last but not least, we also have the great honour of representing the 90 analysts and research assistants employed by the Library of Parliament.

Accompanying me today is Colleen Bauman, a partner at Goldblatt Partners LLP's Ottawa office. She has a great deal of experience dealing with harassment issues and concerns in many different workplace settings, including the federal public service. I am also accompanied by Claude Vézina, CAPE's executive director, who manages the employees responsible for helping members who are experiencing workplace harassment issues.

As you are no doubt aware, the problem of harassment and violence in Canadian workplaces, including the federal public service, is an ever-present problem. Harassment not only harms the individual victims, but it also has a negative impact on workplace morale and productivity. CAPE is very pleased that the government is taking steps with Bill C-65 to help prevent and address this problem. In particular, CAPE is relieved to see that the legislation extends protection to parliamentary employees, including CAPE's members at the Library of Parliament.

CAPE has been fighting for many years for parliamentary employees to have the same protections as other federal employees. Historically, employees of Parliament did not even have the protection of the Canadian Human Rights Act. In 2005, CAPE intervened in support of them in Canada v. Vaid, a case in which the Supreme Court of Canada recognized that the Canadian Human Rights Act applies to all employees of the federal government, including those working for Parliament. While it is a positive development to see that Bill C-65 extends the protections of the Canada Labour Code to parliamentary employees, it is unfortunate that it has taken until 2018 for this to happen.

While CAPE fully supports the introduction of comprehensive legislation to address the problem of harassment in both parliamentary and other federal workplaces, we are concerned that as drafted, Bill C-65 does not go far enough and leaves too many important details to be determined by regulations. Today I'd like to speak briefly about three areas of concern that CAPE has with Bill C-65: the failure of the legislation to include a definition of harassment, the failure of the legislation to guarantee that employees will have access to independent and impartial investigations for harassment complaints, and the failure of the legislation to provide for redress for victims of harassment.

The government has stated that Bill C-65 is part of its commitment to eliminating harassment and violence in federal workplaces, yet surprisingly, the bill fails to define the very thing it seeks to eliminate, leaving it instead to be determined at a later date by regulation. CAPE submits that the definition of “harassment” is too important a matter to leave to regulation. Employees and their representatives need to know now whether the legislation will take a narrow and restrictive approach to harassment, excluding some victims from accessing its protection, or if it will be defined broadly and include all forms of personal harassment, such as conduct and/or behaviours that create an intimidating, demeaning, or hostile work environment.

CAPE submits that the legislation should be amended now to add a broad and purposive definition of “harassment” that will offer the widest-possible protection to employees. In CAPE's view, a definition similar to the one that is currently found in the Treasury Board's Policy on Harassment Prevention and Resolution, which includes both personal and grounds-based harassment, would be a good starting plan.

Our second area of concern with Bill C-65 is that the legislation fails to guarantee that employees will have access to independent and impartial investigations for harassment complaints. Having an independent and impartial investigator is the hallmark of a procedurally fair investigation. An independent investigation ensures that all parties—complainants, respondents, and witnesses—feel that they can speak freely and participate fully in the investigation without fear of retaliation or negative consequences. Indeed, one of the most common concerns we've heard from our members about the current process is that the investigation of their complaint was neither fair nor impartial.

Bill C-65 provides that these employees can complain about their workplace harassment, and where the employee and employer fail to resolve the complaint between themselves, that complaint can be referred directly to the minister for investigation, bypassing the workplace health and safety committee. However, it fails to guarantee that the harassment investigation will be independent and impartial. CAPE submits that the bill should be amended to add this type of requirement.

The final area of concern that I want to speak about today is the failure of Bill C-65 to provide for redress for victims of harassment. It is commonly said that there will be no right without remedy. In other words, a right is meaningless if you have no remedy for its violation.

Meaningful remedies ensure the victims are put back in the place they would have been but for the violation of their rights. Currently, if a complaint under the Canadian Human Rights Act involving harassment on protected grounds is founded, the victim may be awarded remedies including making available to the victim the rights, opportunities, or privileges that were denied, compensating the victim for any lost wages, compensating the victim for any pain and suffering that the victim would have experienced, or compensating the victim for discriminatory treatment that was willful or reckless.

In contrast, at present, the harassment investigations under the Treasury Board policy may end with a finding of harassment but without any corresponding remedy for the victim. An anti-harassment regime that provides no power to award remedies, or one that caps them at $20,000 for pain and suffering like the current CHRA provisions, will discourage victims from coming forward. CAPE submits that the anti-harassment regime under Bill C-65 should provide for real remedies and redress for victims of harassment.

In conclusion, CAPE sees Bill C-65 as a very positive step towards addressing the problem of harassment in federal workplaces. CAPE is hopeful that the reluctance that many employees currently feel in reporting workplace harassment and violence will be addressed and alleviated to at least some extent by the legislation you are currently working on. However, we ask that you consider improving its effectiveness by including a definition of harassment, a guarantee of independent and impartial investigation, and provision for redress for victims. All three of these additions will encourage more victims to come forward and make legislation more effective at eradicating harassment and providing meaningful remedies to its victims.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much.

Now, from the United Food and Commercial Workers Union Canada, Local 232, Nasha Brownridge, president, and Nina Amrov, chief steward.

The next seven minutes are all yours.

[Nasha Brownridge, President, United Food and Commercial Workers Union Canada - Local 232]

Thank you very much.

Good evening. I would like to begin by thanking members of this committee for inviting UFCW - Local 232 to testify on a very important piece of legislation, and to all of your respective political parties for providing the unanimous consent that fast-tracked this bill to committee.

It's quite disconcerting that the House of Commons employees or political employees are not covered by the Canada Labour Code, leaving workers with little job security and fewer rights than other employees in Canada. We are happy to see that this bill will, for the first time in history, extend health and safety provisions to these workers, but note that the bill is still limited in this regard.

I often joke about wearing many hats. Here, I am president of UFCW - Local 232, representing approximately 250 NDP staff working for the House of Commons. I am also a young female political staffer who has volunteered and worked in MPs' offices, as well as working in multiple departments in the public service. I am also a friend, a daughter, a colleague, and a partner. In wearing these multiple hats I have come to know all too well the pervasive culture of harassment here on Parliament Hill, and have witnessed and experienced harassment. In my different capacities I have been confided in, I have consoled, and I have advised. I have also confided in and sought advice from others.

I am grateful that our staff have a union that has historically emphasized the importance of anti-harassment provisions, and that has trained individuals, processes, and procedures specifically addressing the issue.

These hats I referred to also place me in a unique position to testify before you today, as does the very existence of our union. We recognize particular challenges that are ahead of us with this legislation, notably the concept of parliamentary privilege that protects you, the members of Parliament, but this will not stop us from trying our very best to ensure that staff interests, rights, and safety are not sidelined, and we hope you will join us in this effort as you have been.

First, we cannot stress enough the importance of including a broad, comprehensive, but flexible definition of what harassment is and is not. A definition can prove an effective tool for not only identifying instances of harassment, but also as a preventive measure. Our collective agreement includes a definition that has been developed between our union and management teams over the years. This definition has served our local well in helping our staff and management recognize harassment and in validating individuals' experiences.

We believe it is difficult, if not impossible, to govern what is not defined in law, and recommend against leaving this aspect to regulations as we fear this will be detrimental to the effectiveness of this legislation in the long term. We also have significant concerns with allowing a largely partisan board to make decisions on this bill as it relates to parliamentary staff at the regulation stage.

Second, our recommendation for this committee would be to consider mandatory management and anti-harassment training for employers, notably members of Parliament. In every election, talented individuals from across Canada are elected from diverse backgrounds, and often our newly elected officials have little to no management experience. They are suddenly thrust into this role of managing staff in a fast-paced and very complex environment.

As a union local, we can say that many situations we handle relate directly to this situation. In some cases newly minted managers need to be taught and learn effective management skills. This is a simple solution to a large problem, and goes beyond the House of Commons' efforts to implement sexual harassment training for MPs, which, while a great step forward, leaves us with some concerns, or at least many questions. Training our employers on proper healthy communication with staff is absolutely critical to preventing all forms of harassment, and this training cannot be elective. This has been tried and has not worked on the scale that we all know is needed.

Next, our union local shares the concerns of many other unions regarding the exclusion of health and safety committees from this process. This is misguided and could negatively impact an individual's willingness to come forward and report harassment or violence. This bill must be amended to ensure that unions are able to continue their work in preventing and addressing harassment, as well as supporting survivors in the aftermath.

We would also like to seek clarity on how this bill will affect the union's ability to investigate and take action on allegations of harassment within their existing processes and frameworks. On this note we believe that any effective anti-harassment legislation must first ensure that employees have the ability and right to form and be represented by a union, with no barriers. This unfortunately is not currently the case for political staff.

Another critical point to be made is that, as it is written, the bill does not fully address remedies and repercussions. We are particularly concerned with the potential remedies and repercussions when an MP is involved in the harassing behaviour. This is the issue I raised earlier surrounding where parliamentary privilege becomes all too apparent. How do we protect employees who have been harassed in a parliamentary workplace? Privilege not only keeps MPs from being terminated or disciplined in the traditional sense, but also allows them full autonomy over the hiring, discipline, and management of their employees.

What then happens to an employee who has been harassed and could be required to continue working for or with their harasser in order to maintain their livelihood? For that matter, what happens while they are going through this process?

This leads to our final comments. First, we are calling for additional paid leave for employees who are addressing incidents of harassment through the proposed process. It is unimaginable that an employee, particularly where a colleague or an employer is responsible for the alleged harassment, would not have access to additional paid leave beyond the current paid vacation and sick days provided by the House of Commons.

Finally, in her comments, the minister spoke to the issues of privacy, confidentiality, and the fear that exists for individuals coming forward concerning their experiences with harassment. Staff often fear reprisal if they come forward. They fear for their livelihood, their career, and their reputation. Political staff can also fear for the reputation of their party and their employer. Women in particular also fear for their physical safety.

Despite the requirement for a competent third party under the legislation as it exists, there is an overwhelming likelihood that, at one point in the process including the mediation stage described by the minister, an employer will become aware of the allegations and identity of the individual.

This becomes problematic as, to our knowledge, this bill does not contain provisions protecting staff against unfair termination. For members of our bargaining unit, we have a clear and defined process by which staff can be terminated through a series of oral and written warnings as well as a grievance and arbitration process. However, this is not the case in other political offices. Therefore, I ask, what stops a member of Parliament or an employer from terminating an employee who has used this process or come forward with a complaint?

This committee needs to seriously consider the possibility that employees will continue to fear for their livelihood and their jobs even if this bill is passed. While this legislation provides a procedure for dealing with harassment, it does not necessarily provide concrete protections for employees working outside of a unionized environment.

It is not necessarily the process itself that will make employees report their experiences. It is knowing that they are safe, that they will be heard, and that they will not and cannot be penalized for coming forward.

Once again, we would like to thank members of this committee for welcoming us here today and allowing us the opportunity to provide insight and recommendations on this critical piece of legislation. We look forward to your questions.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much.

Finally, from the Union of Safety and Justice Employees, we have Bethany Sutton, interim director, policy, projects and media; and Nancy Peckford, senior policy advisor, for seven minutes, please.

[Bethany Sutton, Interim Director, Policy, Projects and Media, Union of Safety and Justice Employees]

Thank you very much.

I represent the Union of Safety and Justice Employees. We represent 16,000 members across this country, who work in 17 different departments.

In listening to the earlier proceedings of this committee, we heard the committee ask our colleagues in Correctional Service Canada and the RCMP—and the majority of our members work for Correctional Service Canada and the RCMP—how departments or agencies have failed in dealing with harassment. I think the committee was trying to understand that in terms of the legislation you're looking at. We would like to bring forward a couple of examples of that, in hopes that we can better the legislation.

First of all, the union's experience is that often agencies and departments are left unchecked in their internal processes meant to deal with harassment. So often we get very good reports, sometimes from external cases, sometimes internally, with excellent recommendations in them that would actually make a huge difference in regard to dealing with harassment, and often those are just not followed.

We have two examples from CSC and the RCMP. In one case, with the CSC, egregious sexual harassment and violence were identified. In one case, with the RCMP, there was an absolutely egregious misunderstanding of what harassment was. That happened in a particular division. In both cases excellent reports were written. In one case, it was an external report, and in the other case there was a groundbreaking collaboration between the union and management. Excellent recommendations were written, and had those recommendations been followed, significant change could have happened in both the workplaces mentioned.

Unfortunately, in the case of CSC, many of the recommendations were just not followed at all. In the case of the RCMP, the report was taken, excerpts were created, and what was left in the excerpts had nothing to do with any of the problems identified or any of the recommendations made in terms of harassment. In fact, every example of the problem of harassment was taken out of the report, and it is that report that was shared with employees.

As you can imagine, taking into account those situations, we really welcome the idea of having an external department, such as a ministry of labour, that would be able to help identify a competent person. But we would underline—and it was really clear in these examples—the necessity for that competent person to have the required expertise in harassment, and many, many competent people do not have that required expertise. In both those cases we mentioned, it was often the union that brought forward significantly more expertise in terms of harassment. When we're looking at who identifies that competent person—someone who hopefully has the required expertise—we highly recommend that the committee consider having the expertise of a union at that table to be able to identify a person who can make the required recommendations and changes.

We believe, as our colleagues do, that it's absolutely crucial to have a definition of “harassment” within the legislation.

We very much believe—and I alluded to that at the beginning—in the importance of ensuring that there is accountability, and that once this report is created, there is significant accountability as to how those recommendations are actually implemented.

Lastly, a recommendation created for both departments, which was not followed but which is crucial, was that a high-level person who understands harassment should be identified in every division in the RCMP. In the case of a challenge involving harassment, those individuals could be brought together as an ad hoc group. Very similarly with CSC, the recommendation was that there be a high-level person in terms of organizational change.

Thank you very much for your time.

[Nancy Peckford, Senior Policy Advisor, Union of Safety and Justice Employees]

Thank you, Bethany.

I, in fact, wear two hats today. One is as an occasional policy adviser with the Union of Safety and Justice Employees, and the other is as the executive director of Equal Voice, where I will provide some comments. I concur with many of the statements that Bethany and our colleagues have made. The parliamentary environment is not dissimilar to what we in fact see on Parliament Hill. I think we welcome Bill C-65 as a very strong first step, but I think in order for you to all get it right, we do need to look at some significant amendments to the bill.

In short, when Equal Voice looked at legislation and workplace policies across the country, we came up with nine criteria that I think are applicable both to the parliamentary working environment and to many of the federally regulated agencies and departments on whose behalf this legislation is being drafted. Very quickly, we have 10 points that we want you to consider. Many of them have already been addressed. Really, at its heart, politics has to be taken out of this process at every stage of the game. We know on Parliament Hill and in federally regulated agencies like the RCMP, politics often is the primary consideration, not explicitly, but implicitly in terms of how employers deal with what is often egregious behaviour.

Clearly, in our minds, a definition of “sexual harassment” is prudent in moving forward. We need to recognize that harassment can take place outside the workplace, crucial for both federally regulated agencies and, obviously, on Parliament Hill, given the extent of activity that takes place outside this working environment, or a constituency office. We need mandatory training by qualified experts. I think that's really clear. I think mandatory is key.

We have to ensure that the competent persons who are identified are in fact truly independent as many others have said, and that they have the qualifications necessary, otherwise this bill will not serve anybody in the long run. We too are very concerned about confidentiality involved in the cases of Correctional Service Canada, RCMP, and Parliament Hill. We know that confidentiality is a really tough one and that lots of people aren't coming forward because they are not trusting of that process. We have to make sure that the results of the investigation are clearly communicated and there is some stipulation for recourse. We know that the House of Commons policy that many parties have worked really hard to improve is vastly underutilized because people are not confident that their employment or their identity will be protected.

Finally, there are just three more points. Clearly, we want time limits stipulated in the bill so investigations don't go on for months, if not years, which we're seeing across the board. Employment and counselling services, I think, are fundamental especially on Parliament Hill where we know that the environment can be really toxic in certain instances; and even with the outcome of an investigation, we do need to ensure that people actually get the kind of support they need.

What we understand about harassment is that, really, we're forfeiting, in fact, in some cases, the pipeline of the future in terms of women coming to the Hill really wanting to make meaningful contributions to public service, using an opportunity to work in an MP's office as a way to do that and better understand political processes. If they have a highly negative experience, we've lost them. We've lost a potential MP, we've lost a potential elected person, and I would say on the USJE side of the House, we often see that. Often highly qualified women who leave Correctional Service Canada, say, “No, I can't do this. On I must go.” That would be true of the RCMP as well.

I'll leave it there.

[The Chair, Liberal, Bryan May]

Thank you very much.

First up for questions is MP Blaney.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you, Mr. Chair.

Thank you for your concise, constructive, and pragmatic recommendations that sometimes were redundant.

We certainly all agree that this bill is important, but we feel that it should have more teeth, and you've given us some direction tonight. If you feel that you have recommendations or amendments to share with us, the members of the committee.... We have to move quite quickly. As you know, we are on a fast track and have until next week to table our amendments. You've mentioned, for example, the definition. This is certainly something we're interested in.

I learned through this process that the labour department investigator doesn't do the specifics of an investigation, so it means that the independent investigator is always hired by the employer where there's a link, and we feel the employer could feel some impartiality in that. My question for you, since you are mostly a representative of workers, is, how do you see the role of the union when an employee is moving forward?

My first question to you, Mr. Phillips, is this. You set the context in the workplace health and safety committee, I believe. Could you explain to me how you see that we could amend the bill to get...? Or Madame Bauman....

[Colleen Bauman, Partner, Goldblatt Partners LLP, Canadian Association of Professional Employees]

In terms of how this is actually going to play out, there's a lot that could change depending on what is specified in the regulations. We know currently how the model works with respect to workplace violence complaints. These have been interpreted to include harassment in the workplace, and from our members' experience, that has caused some degree of concern, for example, in identifying the competent person. Right now there has to be an agreement in that respect.

I personally know of cases where because they haven't been able to come to an agreement the investigation has been delayed for over a year, which is an issue with respect to delay. Also, there's no guarantee when you have that model that a person is truly independent or has the skills necessary to do a proper investigation. A model where the labour department had a pool of trained, independent investigators who could be called in by the departments would be a possibility in terms of ensuring some element of independence and impartiality. That is definitely an area that we hear is of concern to members. They don't feel like the process that they were provided with was fair.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Again, where do you see the role of the union in the process?

[Colleen Bauman]

When you're dealing with unionized employees, I think the union should be involved at every step in terms of allowing them to assist the victim, if they so wish, in terms of being present at investigative meetings and that sort of thing. If you are going to use a model in which you have a competent person and the employer and the employee have a say, then I think the union should also be allowed to provide assistance to members in that regard.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Does anyone want to add something?

[Nancy Peckford]

In the context of the parliamentary environment, because we don't have staff unionized across the board, we have to ensure that the provisions available to non-unionized staff are as rigorous as those provided by a union, because you have extreme variation on the Hill. It's important that the legislation recognize the different degrees of representation that are available, because of the very diverse situations on the Hill.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Mr. Phillips, you mentioned redress. Let's say this independent investigator comes up with recommendations. How do we make sure they are enforced and implemented? How do you see that we could beef up the bill to do so? Maybe Ms. Bauman can answer.

[Greg Phillips]

Yes, usually I leave it to Ms. Bauman.

[Colleen Bauman]

I think there are two aspects there. One is ensuring that recommendations or changes or protections that need to be put in place for an employee actually happen. However, when we're talking about redress, we're also talking about compensation. I can't tell you as a lawyer the stories I have heard from individuals whose lives have been ruined by the harassment they have experienced. If it's determined that something is founded but that all you're going to get out of this process is that maybe we're going to change your reporting relationship in terms of who you have to report up to, this does nothing to remedy the harm the individual has experienced. When you look at someone who files a discrimination complaint on the grounds of harassment under the Canadian Human Rights Act, there are measures that provide for remedies there. I think you may want to look at a model that would allow victims to access remedies in certain circumstances.

[Greg Phillips]

I would add that the colleagues of an employee who receives a minimal resolution are less likely to come forward with their own cases of harassment. When someone sees a very minor penalty being implemented against the employer in a harassment complaint, nobody is going to want to file a harassment complaint and the harasser is going to continue doing what they're doing, because the punishment didn't fit the complaint. That workplace then becomes a toxic environment where nobody wants to work, and if they're working on something fundamental to the government, the most qualified employees aren't going to want to go there. The problem isn't just for the victim; it's also for the colleagues of the victim who see the perpetration of an injustice.

[The Chair, Liberal, Bryan May]

Thank you.

[Bethany Sutton]

Is it possible for me to make a comment?

[The Chair, Liberal, Bryan May]

Maybe we'll come back. I'm sorry, but I have to move on. That's my role as referee.

MP Dabrusin.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

Ms. Sutton, you had something to add really quickly.

[Bethany Sutton]

Yes. I think the purpose of our intervention was really to highlight how, if the ministry doesn't ensure recommendations are implemented, we will be stuck with the same problem we have in the CSC and the RCMP already, which is that we get excellent external reports at times and those recommendations are not followed. Also, I believe the union should be involved in all aspects of this process.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

I wanted to follow up a bit on the discussion we're having about remedies.

Ms. Bauman, you were talking about the Human Rights Commission as one place to go. Do you think this legislation deals with the two avenues clearly enough as to whether you would proceed by going through the human rights code or the labour program in the legislation set out in Bill C-65?

[Colleen Bauman]

I think in all jurisdictions across Canada you're going to see a multiplicity of fora where you can bring concerns of harassment. I'm not necessarily concerned that someone might be able to bring a complaint under both the Canada Labour Code and the Canadian Human Rights Act. There are processes in place. Typically the commission will put something in abeyance pending the resolution or require you to take other first steps.

I think those avenues should remain open for individuals to make choices with a model they want to use to pursue this, but I would be concerned that this legislation provide at a minimum a base level of protection for everyone equally. I know that right now the legislation is structured so that the minister can decide that one of the other processes is adequate and they don't have to investigate: for example, if you have a grievance process or if you access your remedies under the Canadian Human Rights Act.

I would just want to make sure, though, that an investigation under the Treasury Board policy, in which you're not necessarily going to have an independent and impartial investigator, isn't the replacement for your rights under the act and isn't the basis on which they can say that you've had your right to an investigation.