Public Safety Committee on April 19th, 2016

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

When we were talking about harassment, it would be from a manager to someone who was working under him or her. What about peer-to-peer harassment?

[Paul Champ]

You can also grieve those. You would be able to grieve those. In terms of the employer liability or responsibility, it's a situation where had the employer been put on notice of the problem and taken effective steps to deal with the problem.... If the employer doesn't know there's peer-to-peer harassment, you don't have liability in that sense.

In making a complaint of harassment where the harasser may well be subject to discipline, that's still there and the disciplinary process is important and I think that's part of the reason why it's excluded because they see harassment as a misconduct—we're going to discipline someone—rather than let's provide a remedy to this person who was harassed by a manager, complained several times, and was ignored several times.

You have that awful case in the Police College; I'm involved in that one. That one is classic, and that's where you need proper remedies for members who have been harassed. They've raised the issue with management and not enough has been done.

[The Chair, Liberal, Rob Oliphant]

Thank you, Ms. Damoff.

Mr. O'Toole.

[Erin O'Toole, Conservative, Durham, ON]

Thank you, Mr. Chair, and thank you both for your testimony here today.

Certainly it's clear, Mr. Champ, you've followed the committee coverage right to the day the ministers appeared and I think you could see we had some concerns with clauses 40 and 42 right away. I don't think anyone's put it as succinctly as your Lloydminster example to show that the patchwork approach, whether it's with PTSD or whether it's with income levels, is not something that's well suited to a federal force with, as you said, the three unique RCMP differences, that unique posting structure and nature that means you're a federal police officer but one day you could be in Atlantic Canada and a week later you could be posted to northern Canada.

I want to thank you for that because I do think we're making some progress there and that example just shows how across town there would be differences from single incidents.

Mr. Rowlinson, it was interesting you chose a quote from the decision talking about meaningful collective bargaining, which was at the centre of the case. The court did specify what made up the meaningful standard and that was employee choice and independence. On the employee choice front, the labour movement tends to very much disagree with a secret ballot approach for creating a union. Would you feel that's the best way to truly see employee choice on certification of a union?

[Mark Rowlinson]

Before I answer the question, I'll respectfully disagree, if I could, on what the Supreme Court actually said in MPAO. Yes, they dealt primarily with issues of employee choice and the autonomy and independence of the bargaining agent, because that was the issue that was before them. They made a lot of comments about meaningful interference on collective bargaining and they elaborated a sort of test and a number of principles for analysis of 2(d), but in the actual MPAO decision, of course, they weren't looking at a collective bargaining regime. They were looking at a regime where a group of employees was specifically excluded from collective bargaining, so therefore that is the issue they ultimately focused on.

In terms of your question about the means by which employee choice is determined, i.e., whether it's by a secret ballot vote or by way of membership cards signed without any intimidation or coercion, different Canadian jurisdictions, as you know, deal with that issue differently. In Quebec, “50% plus 1” membership cards are sufficient. In the federal jurisdiction until very recently, that was the way in which employee choice was determined. In other Canadian jurisdictions, there is a requirement for a mandatory certification vote. The courts have been very clear that both methods pass constitutional muster, and the charter has nothing to say about the preferences between one or the other.

Speaking from the labour movement's perspective, our view, as I'm sure you know, is that in these particular circumstances when employees are choosing a bargaining agent for themselves, a secret ballot vote tends, in all the empirical evidence, to demonstrate what a secret ballot vote essentially does. It provides a licence for employers, during the campaign up to that secret ballot vote, to behave in ways that are inherently intimidating and coercive toward the employees as they make their choice. Secret ballot votes are essentially a licence for employers to intimidate and coerce employees, and therefore—

[Erin O'Toole, Conservative, Durham, ON]

Does that same approach apply to the context of government, though? There can be examples cited from the private sector and private sector unions, but we're all here because I think all sides recognize the right outlined by the Supreme Court in that Mounted Police decision. Is that same intimidation and coercion concern as relevant in the public sector context?

I say that because at the briefing the government provided in relation to this bill, senior officials said that every previous certification of the public sector had taken place under a secret ballot regime because it goes back so far. Is the same concern that you're highlighting relevant for the government?

[Mark Rowlinson]

I think the concern is that if your employer, whether it's a public sector employer or a private sector employer—i.e., the institution that puts food on the table for your family—indicates firmly to you that it has a preference as to how you're going to vote on the question of unionization, that becomes a very difficult choice for an employee, because the day after the vote, your employer, and again, whether it's the public or the private sector, is still your employer.

[Erin O'Toole, Conservative, Durham, ON]

The employer here is bringing enabling legislation forward for that vote, so I think it's very clear that there will be a bargaining agent, and the certification decision really should be in the hands of the employees.

[Mark Rowlinson]

Right, and I agree with you that the certification decision should be in the hands of employees. Because it should be in the hands of employees, it should be done in a manner that is confidential and private. That, in our view, mitigates in favour of a requirement to sign membership cards and not indicate a choice, again, by way of a secret ballot vote.

[Erin O'Toole, Conservative, Durham, ON]

In the remaining time I have, I want to talk about the exclusions you mentioned on civilian employees, and the issue of making sure the bargaining agent was unique to the police force, that is, the RCMP. You used the example of the ability of an employee to counteract the power imbalance between an employer through a bargaining agent, through the union.

Would it not be fair also to extend that to the same power imbalance where you could have a single employer not wanting the power imbalance with a large union that's a collective of many different ministries, many different jurisdictions, and many different needs and wants? Isn't there then a power imbalance? A union as large as yours, with.... Maybe the federal government is a bad example, but with some employers, a single employer, the power imbalance actually would be towards a collective style union such as Unifor or your own.

I'm wondering what your thoughts are, and where the case law may show in future that collectivization of the labour movement may lead to the power imbalance going the other way.

[The Chair, Liberal, Rob Oliphant]

I'm afraid I'm not going to be able to allow you to answer. The question was very long, and we've reached the time limit. You may respond to him in writing if you'd like.

Mr. Blaikie.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you.

I thought I'd follow up with Mr. Rowlinson a bit on the question of affiliation. I'm wondering if you could give an example of the kind of co-operation or arrangement between organizations that might make sense and help advance the interests of RCMP members, that wouldn't interfere with their independence, but under the vague wording right now might land them in hot water.

[Mark Rowlinson]

I'll give you a couple of illustrations. We have what we tend to call strategic alliance relationships with other independent unions. They're not financial relationships in any way. For example there's ACTRA. ACTRA's a national union, with members all over the country. We have a strategic alliance relationship with them simply because there are parts of the country where we have resources, where we can assist ACTRA members and we're happy to do so, and where they don't necessarily have the resources to do so.

If I could use the example in the case of the RCMP, one of the reasons, candidly, why we're here is that we are the predominant union in the resource extraction sector. We have a lot of members in small communities all over western and northern Canada where, not surprisingly, there are also RCMP detachments. Many of our members have family members who are in the RCMP. With the RCMP union, or whatever it is it that may form, whether that's using a meeting room or a building, or needing a place or a location, or joint efforts in terms of education, all of those things are done. Our union does those sorts of collaborative exercises with other unions. We don't see any reason why there should be absolute prohibition on such arrangements with the RCMP union, should it arise, and should it be necessary for the effective representation of those workers.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

I want to say thank you very much to Mr. Champ for your example between Alberta and Saskatchewan. I think it puts into stark light what some of the problems with some of the changes to benefits are.

I was hoping you might say more, and add to when you were talking about covering things like promotions and transfers within a collective agreement. How terrible would this be from the organizational point of view? What kinds of things or proposals do you think might reasonably be brought to the table, particularly a table that ultimately is going to go to binding arbitration, with an arbitrator who's required to take into consideration the unique needs of the RCMP as the national police force and everything else?

What do you think the fear is about what's going to get pushed through that process? What could possibly be pushed through that process that ultimately would be bad for the RCMP and somehow good for its members?

[Paul Champ]

Probably the thrust of some of these exclusions, like the transfers ones, is that the RCMP wants to reserve unto itself that they're still a paramilitary organization. If we tell you you're going to the front lines, or you're going to this remote community, that's where you're going. We need someone there. We don't need any talk-back. That's what's happening.

I think that's where it comes from, but I don't think there should be fear of that in the RCMP. For example, here's what a collective agreement provision could look like. You could say that, in posting a member, the RCMP will take into account the member's interests, career aspirations, and family issues. However, due to operational requirements, the member may be posted anywhere the force requires. In that context, if you're in the penalty box...people remember one of Commissioner Paulson's early comments about harassment.

This is why I get to this. If you don't have independent adjudication of the right to grieve, these assignments and postings can be used to harass people, essentially. You could grieve and say no, there's no reason for me to go to this posting, and what's the operational requirement? Then the force would be required to bring evidence and show to an independent decision-maker that here are the operational requirements, we only have this many people here and these people here, we're short here, and we need to post this person here. If they can do that, great, they win the grievance. If they don't, and if it's tainted in some way that some officer is trying to put the thumb on that member, or treat them unfairly, or put them in the penalty box, then labour adjudicators are pretty quick on that kind of stuff. They'd pick it out and say no, that's an unfair posting, and this person's not going to be assigned there.

That's how I think those kinds of grievances would be sorted. Obviously the management prerogative to assign or post people and understanding the operational requirements in the RCMP would be critical or paramount. I still think that having the right of grievance there, or at least collectively bargain the kinds of factors that would go into that, is something that I don't think the force needs to be afraid of.

[Mark Rowlinson]

May I make a quick point on this issue?

One thing our union does is gather empirical data around why people want to join unions—perhaps not surprisingly. One thing you find is that, yes, people want higher benefits and wages and terms and conditions of employment, but actually workplace fairness and dealing with their employer on exactly these kinds of issues is almost always at the top of the list, if you actually ask Canadians why they want to join a union. It's not just about the benefits and the wages, and it's certainly not about taking strike action or anything like that. Workplace fairness is almost always at the top of the list.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Speaking from a process point of view, the kinds of things that fall under the exclusions are quite diverse, because the exclusions are many, and the kinds of remedies that parties might seek at the bargaining table, if they were allowed to, are also diverse.

Does it make sense, from your point of view, to try to anticipate all of those many issues as legislators and then write exclusions to the exclusions, if you will, into the law anticipating those things? Or do you think it makes sense to back off those exclusions and let decisions be made at the bargaining table?

[The Chair, Liberal, Rob Oliphant]

Be very brief, please.

[Paul Champ]

I can answer that in a couple of seconds.

At the end of the day, even removing the exclusions doesn't mean their subject matter is necessarily going to be subject to the collective agreement. It will still be subject to collective bargaining. If the RCMP as the employer, or the Treasury Board—whoever does the bargaining—insists that they need absolute control over postings and when they happen, they can say, “We're not putting that on the table, guys. We're just not doing it.” They could do that, or maybe years down the road it's not as big a deal and they're willing to negotiate on it.

I guess all I'm saying is that just removing the statutory provisions or exclusions doesn't mean that their content is necessarily going to be part of a collective agreement. There's still, obviously, collective bargaining to be done.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Blaikie.

I think I'll give Mr. Mendicino a short round of four or five minutes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Do you mean a lightning round, Mr. Chair?

[The Chair, Liberal, Rob Oliphant]

Yes, it's a lightning round, just to make sure you have a chance to get in.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you very much to both of you for your testimony.

Here are just a few things over which I think there is consensus.

The Supreme Court of Canada has concluded that any process that substantially interferes with the collective pursuit of workplace goals would infringe section 2(d) of the charter.

Am I right about that, Mr. Champ?

[Paul Champ]

Actually, these exclusions may well run afoul of that.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

That leads to my second question.

Bill C-7 is the government's proposed response, at least in its present form, but you point out a number of concerns with it, some of which relate to the exclusions.

Concerning harassment, there's a report, which was apparently just posted on the RCMP website, called “Results and Respect in the RCMP Workplace”. I don't know whether you've had a chance to access it.