Public Safety Committee on April 19th, 2016

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you for that.

Here's the other question I had. Do you have a sense of how your female membership would feel about—I'm going to go into something very specific, just to broach the topic of harassment—the question of employee-to-employee harassment, not management to union, but peer-to-peer harassment? Have you received any views from female members of your association on how that is best tackled?

[Brendan McKenna]

There has been that feedback to the directorship of the association, but I haven't been party to any of that.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Would you be able to share any analysis that you're going to do in the short term, or if there are any that your organization has done, in terms of views?

[Brendan McKenna]

I think that's something we're going to have to look at, but I don't think we've done that yet.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's all I have, Mr. Chair.

[The Chair, Liberal, Rob Oliphant]

Okay. You've very compliant today.

Thank you very much. As always, thank you both for your service, as well as for your time with us and our committee.

We'll suspend until the next panel can come in. We'll take two minutes. Thank you.

[The Chair, Liberal, Rob Oliphant]

We are going to start again with our second panel. It's a bit of a change, moving out of the RCMP and its directly affected parties in Bill C-7.

We have invited the United Steelworkers, as well as Paul Champ, who is a labour and employment lawyer, to join us for some of their thoughts and reflections on this bill, which for the first time will enable RCMP members to form a union, should they choose.

I'm going to suggest we start with Mr. Rowlinson, you have 10 minutes, followed by Mr. Champ for 10 minutes. Then, we'll continue with questioning.

[Mark Rowlinson, Executive Assistant to the National Director, United Steelworkers]

Thank you very much, Mr. Chair.

My name is Mark Rowlinson. I'm the assistant to the Canadian national director of the United Steelworkers. I've also been a practising labour lawyer for the union for about 20 years.

The United Steelworkers is one of the largest industrial unions in Canada, with about 225,000 members from coast to coast to coast. We're part of an international union that has about 800,000 members across North America. We represent a diverse membership in almost every part of the private sector, along with thousands of public sector workers in hospitals, nursing homes, universities, and among security guards. We also advocate on behalf of roughly 100,000 retirees and their families across Canada.

While many of our members work under provincial law regimes, we also represent about 25,000 members in the federal jurisdictions, including workers employed in airport security, transportation, energy, and telecommunications.

Labour legislation in all jurisdictions in Canada is important to our union, as it is to all labour organizations across the country. We are concerned about any legislation that may interfere with either the spirit or the substance of fundamental labour rights, like the right to join unions and the right to bargain collectively.

We're very grateful for the opportunity to appear before you today, as we're concerned about how the Government of Canada responds to and complies with the important Supreme Court of Canada decision in the MPAO case, which the Supreme Court issued a little over a year ago.

The MPAO decision was one of a series of decisions by our country's highest court that clarifies the scope of freedom of association and collective bargaining rights under the charter. We were a plaintiff in the SFL case that was issued a week after the MPAO decision, and we've long taken a great interest in how the charter and labour law regimes in Canada interact.

In MPAO, as the committee will be aware, the Supreme Court affirmed that freedom of association protects the right to join and form associations, to do so in pursuit of constitutional rights, and the right to join others to meet on more equal terms the power and strength of employers.

If I might pause for a minute, I want to read you an excerpt from the decision, where the Supreme Court noted, and I'll return to this:

Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.

It is precisely that set of rights that is protected under section 2(d) of the charter.

The Supreme Court continued, “The right to a meaningful process of collective bargaining is therefore a necessary element of the right to collectively pursue workplace goals in a meaningful way”, and “A process” or legislation, I would submit, “that substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power is therefore inconsistent with the guarantee of freedom of association enshrined in [section] 2(d)” of the charter.

We are here today to provide a few comments on Bill C-7, and to express our concern that in some areas Bill C-7 grants the right to join a union and collectively bargain to RCMP employees and officers on the one hand, but on the other hand it also erodes that right through limits on association and the scope of bargaining.

I want to review a number of points where we have concerns, given that background about Bill C-7.

First, is the configuration of the bargaining unit. In the bill under its present form, as the committee will be aware, civilian RCMP members are excluded from the bargaining unit. There is no justification, in our view, for excluding employees of the same employer from the bargaining unit, other than to erode the collective bargaining position of the union. In both federal and provincial jurisdictions across Canada, labour relations boards have for decades preferred broad-based, all-employee units.

While we agree with the bill's exclusion of officers in their capacity of management, the list of ranks that are considered officers is set by Governor in Council. The number of officers in each rank who are excluded, as prescribed by the Treasury Board, means the employer has essentially the exclusive power to decide who is included and excluded from the bargaining unit as an officer. This is an exception to the normal rule in Canadian labour relation regimes, which provides that managerial exclusions and other exclusions from the bargaining unit are determined by independent labour relations boards.

Second, and this is perhaps the one point I want to emphasize the most this morning, are the very vague and general limits on affiliation that are contained in Bill C-7.

Under Bill C-7, to be certified, an employee organization must be, among other things, “not affiliated with a bargaining agent or other association that does not have as its primary mandate the representation of police officers”.

We fully respect and understand the limit that the bargaining agent itself must be an organization that is primarily devoted to the representation of police officers; however, we are at a loss to understand this very general and vague point that the bargaining agent must not have any affiliation with other organizations. We submit that this is a serious infringement on freedom of association, and there are clearly less restrictive ways to deal with issues of the independence of the bargaining agent than this one.

We would refer the committee to the Ontario Police Services Act, which deals with this issue in a different way in that, for police unions in Ontario, the only limit to their ability to affiliate applies to individual members and prevents them from actually joining another union without approval. However, the Ontario Police Services Act appears to rightly allow collaboration and affiliation with members of other unions and other labour organizations.

This would seem, for example, to allow members of the RCMP union—should there be one—who are affiliated with other organizations to provide that union with advice, support, and so on and so forth, and would actually allow the police union to become a part of a broader movement and to seek the assistance of other organizations. We don't think that at all threatens the independence of the RCMP potential union and we think it is an important right for them. This could take the support in terms of one-off support for a particular campaign or initiative. For example, police unions across the country were very important in the campaign around Bill C-377, which was introduced by the former government, and worked within the broader movement on those sorts of issues.

We are suggesting that this restriction on affiliation, again, is extremely general and will be very hard to understand by someone from outside the organization and from the broader labour movement.

Our union, for example, has a wide range of different relationships with different unions. We have strategic alliances with some unions, we collaborate with other unions, and we provide resources, whether that's use of our buildings or collaboration or training with other organizations. Again, it's not clear to us that such a broad restriction is necessary.

The third point I want to comment on, and only very briefly, is limits on the scope of collective bargaining in Bill C-7. I know the committee has already heard a great deal about the limits on the scope of collective bargaining that are contained in the legislation, and I won't belabour the point other than to say that limiting the scope of collective bargaining, as the legislation does, in such a broad and pervasive manner, constitutes a significant infringement, in our view, on the rights of RCMP officers as enshrined in section 2(d) of the charter. We submit that the legislation is over-broad in precluding negotiation over transfers, promotions, discharges, and demotions; conduct, including harassment; the basic rights for carrying out the duties of an officer; as well as equipment matters.

Further, of course, Bill C-7 limits the outcome of binding arbitration. We understand and support the idea that collective agreements should be resolved by binding arbitration, but again, the fact that the arbitrator will be precluded from dealing with that wide range of issues in our view further reinforces the restriction and the possible infringement on section 2(d) of the charter. We would submit to you that it substantially interferes in their collective bargaining rights.

The fourth issue that I want to mention is the factors in the binding interest arbitration regime that is set forth for RCMP officers. Here Bill C-7 essentially provides that the factors that are already set out in the PSLRA to guide an arbitration board in imposing a collective agreement will also apply to the RCMP union, should there be one.

In particular, section 148 of the PSLRA, which was amended and implemented by the previous federal government, requires that the arbitration board consider:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians; and (b) Canada’s fiscal circumstances relative to its stated budgetary policies.

These provisions of the PSLRA were introduced, as I mentioned, by the previous Conservative government, and the fact that they've been maintained in Bill C-7 we think is problematic. The fact that the legislation requires an arbitrator to give preponderant weight to these two factors compromises the independence of an arbitrator and creates a built-in bias in the interests of the arbitration process by essentially requiring an arbitrator, rather than to act independently, to implement what amounts to government policy.

Bill C-7 imposes an additional constraint on the arbitration process in that it provides that the board must consider “the impact of the determination on the operational effectiveness of the Royal Canadian Mounted Police” in imposing collective agreement terms.

This requirement is unique to Bill C-7 and is not required for any other federal public sector employees. Given that RCMP members do not have the right to strike and the fact that bargaining impasses must be resolved by way of interest arbitration, this is a new factor, which unnecessarily and in our view inappropriately biases the interest arbitration process in favour of the employer.

[The Chair, Liberal, Rob Oliphant]

Could I just ask you to wind up as quickly as possible?

[Mark Rowlinson]

We had two other issues that we raised in our submission. Lesser issue one relates to limits to the grievance and arbitration process. The other relates to the concern about workers' compensation and the fact that under Bill C-7 RCMP officers may be subject to a sort of patchwork of workers' compensation benefits. I'll skip over those.

In conclusion, as an international union with strong ties to other unions throughout North America and globally, we are committed to the full expression of the right to freedom of association in collective bargaining. Bill C-7 in its present form limits these fundamental rights for RCMP officers in a manner that is, in our view, unnecessary.

We ask that the committee, in its clause-by-clause review of the bill, remove the barriers outlined in this submission and others, and ensure that the spirit and intent of the MPAO decision is enshrined in the legislation by allowing officers to exercise their right to free and independent collective bargaining.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Rowlinson.

Mr. Champ.

[Paul Champ, Lawyer, Champ and Associates, As an Individual]

Thank you, Mr. Chair and committee members. I want to thank you very much for this opportunity to address you and assist you—

[The Chair, Liberal, Rob Oliphant]

Excuse me. I just want to remind the committee members that there is a submission from the United Steelworkers, because you didn't get everything out you wanted to.

Sorry, Mr. Champ.

[Paul Champ]

Thank you, Mr. Chair.

I want to thank the committee members and the chair for this opportunity to assist you in your review of this very important bill to introduce the right to unionization and collective bargaining to RCMP members. In its way, it's really quite an historic moment. There have been efforts by men and women in the RCMP for over 50 years to unionize, and they have been consistently resisted by governments of the day. This is now a moment for RCMP officers to exercise these freedom-of-association rights. It's a very important bill for that reason.

So that you know my perspective on this, I'm a lawyer in private practice—a labour lawyer—and I have had the great honour and privilege of representing numerous RCMP officers from across the country in labour disputes over the years, in all the different provinces—or divisions, as they're established in the RCMP. I've dealt with disciplinary matters, promotional cases, harassment cases, whistle-blower cases, occupational injuries, duty to accommodate, and racial and sexual discrimination cases, all in the context of the RCMP. From that experience, I believe I have a pretty good sense of the recourse mechanisms under the RCMP Act that are available to all RCMP members. I want to offer my views on these to you.

The main issues I want to address are the exclusions, about which you've heard a lot, but I'll offer some insight on those as well as on the grievance system that you would have under this bill. It's quite complex now concerning where your recourse goes. Is it a disciplinary matter? Is it a collective agreement matter? Is it a promotional matter? There are different avenues that you have to follow. This, I think, makes recourse very difficult.

I can tell you that even before this bill, this was one of the more complex labour regimes that I have to contend with. I represent all kinds of federal public sector workers, from across the board—every department you can imagine. I represent CSIS officers, CSEC...so I have a sense, and the RCMP Act is very complex as it is right now.

The final issue is the workers' compensation matter. I have some views on that, and I'd like to offer them to you as well. I was going to address it last, but I'll address the workers' compensation one first, because I think the exclusions have been hit pretty well by the other presenters.

Right now, as you're no doubt aware from previous presentations, RCMP members are entitled to full pay from their employer while on sick leave, and the causality doesn't matter. Whether it is a workplace injury or some other kind of illness doesn't matter; they get their full pay. What this bill proposes to do in clause 40 of Bill C-7 is push all RCMP members onto different provincial compensation schemes across the country.

I want to say this right now. If you make any changes or recommendations for any changes to the bill, change this one. This one doesn't make sense, and here's why.

I reviewed what the ministers told you last week, suggesting that the approaches of the different provinces are reasonably consistent and that there are not big discrepancies between provinces. They also told you that this system seems to function well for federal public service employees, who are in the same way governed by provincial compensation schemes based on the province in which they're employed.

The RCMP are very different, for three reasons.

First of all, RCMP officers are involved in more physical work than other federal public service employees and are more prone to injuries on the job. I think that's something we can all understand and grasp.

Two, RCMP officers have mobility built into their jobs. They are assigned and are posted to locations of work across the country and are reposted again and again. You'll see many RCMP officers with even 20 years or 25 years of service who have worked in two or three provinces throughout their career, and some of them even more than that. That's very different from federal public service employees, who typically work in one location their entire lives and who moreover get to choose. If you're applying for a job in Ottawa with whatever agency—say, the CRA—or for a job with the Department of Fisheries and Oceans in Vancouver, for example, you know what provincial compensation scheme you're going to be subject to.

If you're an RCMP officer, you don't have the right to choose and you don't have that knowledge. You could well be moved—and many are—to different provinces throughout your entire career. I think that is a fundamental difference from the conditions of federal public service employees that really makes this unfair.

Here is the third and final reason why I say you have to take this out of the bill, and that is the differential coverage across the country. It is a patchwork. They are not reasonably consistent.

Under workers' compensation schemes, there is maximum income coverage, so you are covered only up to a certain level of income, and they are very different across the country. The low is $51,000, and that is in P.E.I. The high is in Manitoba with $119,000 of annual income.

An RCMP constable at the top of the band earns $82,000 a year. Of all the 10 provinces, only three would provide full coverage to that constable if he or she was injured on the job and was off work. A dramatic example.... I am from Saskatchewan, so I always enjoy the examples we can draw from Saskatchewan; it teaches the country a lot of things. Lloydminster, as many of you are aware, straddles the border of Alberta and Saskatchewan. It is a really entertaining place for all kinds of reasons, but it also has two RCMP detachments. They are about two kilometres apart. I think one is on 47th Avenue on the Saskatchewan side, and the other is on 44th Street on the Alberta side.

In Saskatchewan, the maximum coverage for that member is $54,000 a year. In Alberta, it is over $90,000. It could well be the case that there is a very serious matter and RCMP officers from both detachments are called to a certain location. A terrible thing might happen and they both might be injured. Well, if you push these members on to the provincial compensation schemes, these two police officers, working side by side at the same incident, are going to have very different outcomes in what they get. The member who is posted to the detachment on the Saskatchewan side is going to earn, by my rough calculations, about $1,000 less per month than his or her colleague who is assigned or posted to the other side.

I wanted to highlight that. This is a bad idea and I think it is unfair to RCMP members. At a bare minimum, making this change right before you are about to see unionization, where an association might want to discuss or negotiate this with the employer, is a very bad idea.

I will turn to the other points I want to talk about, the exclusions. You have heard a lot about the exclusions. I will just hit on the points that I think are most significant, which are promotions and transfers, and harassment cases. These exclusions are not only a major issue due to the lack of free and meaningful collective bargaining, but they also push members into a very complex recourse system. In many cases, when you exclude these from the collective bargaining, they do not have the right of independent adjudication.

Under section 31 of the current RCMP Act, you go through internal grievance mechanisms. They do have adjudicators, but they are commissioned officers, superintendent or chief superintendent. When you are dealing with a situation where you are grieving the actions of a deputy commissioner or a commissioner—and I tend to get involved in cases that are more serious like that—you are going to a chief superintendent and saying, “Hey, can you overturn this decision of the commissioner?” Well, that is not going to happen very often.

The way this act works is that only collective agreement issues will go to the Public Service Labour Relations Board. When you combine that with all the exclusions, this really means that the only things you are going to see at the PSLREB are pay and comp issues. Some of the most important working terms and conditions that are so important to RCMP members are not going to be subject to that independent adjudication. I think that is a really big problem.

About promotions.... Reviews and studies over the last 20 years have repeatedly found that the views of RCMP members are that the RCMP promotional system lacks transparency and fairness. The Brown report from 2007, “Rebuilding the Trust”, said that the promotional system is “viewed almost universally as being ineffective, unfair and opaque.”

That was the Brown report in 2007, cited by the Supreme Court of Canada in the MPAO judgment.

The RCMP did another report of its own recently, called “Gender-Based Assessment”, published in 2012. I noticed they just suddenly posted it last week for some reason. There, they did a review and survey of members. Those members said that one of their most serious issues is “The lack of fairness and transparency in the promotional processes”. Yet promotional processes are kept completely out of collective bargaining or the independent grievance adjudication system that you would have going to the PSLREB. They have to continue to grieve up.

Promotions, I would submit from my experience over the years, are seen as rewards to those who belong to a club, to those who are seen as loyal, to those belonging to certain cliques that happen to be in ascendency within the force, and I honestly say I think that if you would get any member, even a commissioned officer, over coffee or a drink and ask them, they will tell you the same thing: that's how it works.

It's based on loyalty more than anything, not fairness or merit.

[The Chair, Liberal, Rob Oliphant]

Can you just wind up, Mr. Champ.

[Paul Champ]

Yes, thank you, Chair.

Then on harassment, this is one of the most serious issues facing the RCMP today. It's a part of the culture. You have fiefdoms where arbitrary conduct can go unseen. You have some isolated posting where they're all subject to a certain sergeant, and perpetrators are then often protected by that loyalty. Some staff sergeant gets in trouble or there's a complaint and then it goes up and it's a chief super who used to be posted with that staff sergeant, and that complaint is going nowhere.

Moreover, when you get to the loyalty issues, anyone who complains is by definition seen as disloyal. I'm sure you've heard this again and again on the cases of the class actions involving female RCMP officers; well, it applies otherwise. If you bring a complaint of harassment, you are instantly singled out and subject to reprisal, and that's a problem. There's no independent adjudication, and it's not subject to collective bargaining. Where members need it the most, they don't have it.

Those are the submissions that I wanted to make primarily. I have a couple of other points that maybe will come out in the questions, but I don't see why the government wants to shield this kind of conduct from independent grievances—harassment. I've heard Minister Goodale say last week that they're going to try to make changes, and we take him at his word, but this problem is deeply entrenched in the culture. I think if you expose it to the sunlight of collective agreement bargaining representation, that will take care of it.

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Champ.

We're going to begin with Ms. Damoff.

Thank you.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you very much to both of you for coming out and giving us more information on the issue that we're dealing with.

I think one of the things that I've been heartened about since I've been a newly elected MP on this committee was the way all parties embraced the importance of dealing with PTSD and OSI in our first responders and public safety officers. I think all sides of the House have agreed that we need to deal with this issue. It's evidenced by being our choice for our first study.

We all face challenges with clauses 40 and 42 because of the very things that you've outlined in terms of coverage. Ontario now has presumptive legislation for PTSD and OSI, and other provinces don't. I'm wondering if you might be able to give us some input on how you think that should be dealt with it then. If it's not dealt province by province, do you have any suggestions on how we could deal with that?

[Paul Champ]

The big question I have is, what's broken here? I don't think I've heard the case about why we need to change the current system.

I believe last week Deputy Commissioner Dubeau indicated there hadn't been consultation with members broadly on the issue or really any consultation. I just don't know what the problem is. What's wrong with the current system?

I've dealt with a lot of RCMP officers who were off due to illness or injury on the job, and there's the whole separate issue of trying to adjudicate with workers' comp while also dealing with the employer. I deal with it in non-RCMP contexts, and it's very complex and very difficult when you're dealing with these two regimes. Here, it's a one-stop shop. You're dealing with the employer saying, “Here's the issue, here's this person's medical restrictions, they're off work for this period of time, and let's deal with it.” I just don't see why it needs to be changed. I haven't heard the case, so it's difficult to respond to that question.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Given that we will be resuming our study following these meetings, I think we could benefit from the recommendations that would come out of that study.

I do also want to talk a little bit about the limits. You mentioned the limits on the scope in collective bargaining, and in particular, the wording right now says “conduct, including harassment”. The minister, when he appeared, talked about initiatives that are being worked on right now, and I see that there's just a report that misconduct reports are up I think it's 158%. Management is saying that's because they're addressing bad behaviour within the RCMP.

Are there any implications from a legal point of view—you're a labour lawyer, so you can address this from a legal point of view—if the wording “including harassment” were removed?

[Paul Champ]

You would find some of the more serious cases would then end up going to the Public Service Labour Relations Board. No doubt you would probably have the association negotiating some clause in the collective agreement that says fair treatment in the workplace, or no harassment in the workplace, some kind of language like that. It wouldn't open floodgates because a member would not be able to bring a case to adjudication on their own. It would have to be approved by the association, so I think just the more serious cases would end up in adjudication.

I think that's what we would have and you have that with other police officers. I also represent the Ottawa Police Association, so I'm familiar with that regime. They have the right to have those issues adjudicated. I don't know why it's being denied to RCMP officers.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Would there be a vacuum between the time this legislation passes and when and if a union is formed? What happens in that interim period?

[Paul Champ]

Presumably the current system would remain in place and I think the issue of a vacuum is a very real one. I think you heard last week about how the RCMP commissioner has unilaterally cut the legs out from under the Mounted Police Members Legal Fund, which has been representing members for 20 years in a number of cases. It is supporting a number of cases right now that are going to be knocked out at the knees because of those changes.

I think there's a concern that RCMP members in the next two years may be more vulnerable than they've ever been until we get an association, if we don't give some thought about this interim period.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Do you have any suggestions on how we deal with that interim period?

[Paul Champ]

This is amusing in some ways, but only because of how bad it is. Under the old system, you already did not have any adjudication. You could file a harassment complaint or grievance and if you got that resolved in less than four or five years, you would be lucky. Frankly, I don't think I ever saw one resolved in less than three years.

That's a terrible thing, and it's been attacked by the Federal Court, which criticized the RCMP for that. At the end of the day if it's only about two years, provided that the grievances can still at least start moving through the system, or at least be protected in the same way they were before, where you have some kind of member rep system that can assist people at least under the RCMP Act section 31 process, that would be better, but unfortunately I think it will be a tough situation.