Mr. Speaker, it is my pleasure to speak to Bill C-25 to modernize the public service.
However, as for the work done in committee, I am not so pleased to note that out of more than 120 amendments moved by the Bloc Quebecois, only one was adopted. Moreover, a dozen or so amendments moved by the NDP were all rejected. This gives a good indication of what is happening with the bill.
We are told that the committee has done its work and it is true; we spent several months on this legislation and we see the result. In terms of the amendments on anything that affects employees, officials, union organizations, or anything regarding bargaining agents, it is very clear what happened. All the amendments moved by the NDP and the Bloc Quebecois were rejected.
Bill C-25 would replace the current legislation, which dates back 35 years. That legislation became obsolete a very long time ago. This bill is the result of numerous reports and studies—more than thirty in total—on the need to renew how recruitment and staffing are handled in the public service. These reports and studies all found that there has to be a cultural shift in the public service.
The President of the Treasury Board introduced her bill in the House on February 6, 2003. The purposes of this bill are to add the concept of merit, implement a more flexible staffing system, improve labour-management relations, and incorporate learning and development activities for employees in the public service. This is not the case, far from it.
With this bill, the Treasury Board believes it will be able to handle the constant reduction in the work force and the increased competition in the labour market. Well, it will not be able to do so.
The government also intends to deal with the demographic problem in the public service. With this bill, it thinks it will be able to resolve the shortcomings relating to age and representativeness. Then there is the matter of the skills shortage. The government identifies this as being critical. It certainly is critical, but what Bill C-25 provides for is not the answer.
Finally, the intent of the bill could have been to really improve the public's perception of the public service. Because of its disrepute, few people are interested in a career in the public service, and there are recruitment shortages as a result. The cultural change will have to focus particularly on this last aspect. This is a pretty thick bill, one that is imposing and important, since it is designed to change not only technical aspects of the administration of the public service, but also the entire approach to it.
A structured and detailed approach should have been taken, if real changes were to be made, ones with real impact. The purpose of the analysis that follows is to consider all the pros and cons of each provision, in terms of its outcome.
As you might expect, Mr. Speaker, given my preamble, we are opposed to this bill because no significant changes were made, particularly with respect to the protection of public servants who report questionable, immoral or fraudulent practices or policies, but also with respect to actively promoting linguistic duality.
No changes were made regarding the contentious concept of merit. There are problems in the public service in Quebec as well; that is why, in January 2002, the Government of Quebec saw fit to create a position of secretary of state to public service renewal.
The Government of Quebec tackled the issue of managing the public service from various angles. In 1981, the Bisaillon commission completed its work and, in 1983, the government passed the Public Service Act (employee responsibility, services to the public and resource development). In 1993, the government passed an act respecting the accountability of deputy ministers and chief executive officers of public bodies.
In 1994, the Government of Quebec took steps to make managers more accountable, in order to emphasize the allocation of financial resources, ratify framework agreements with unions, and reduce central controls, in order to truly respond to the challenges being faced and to introduce a management model.
In 1997, working groups considered three themes. Their first task was to evaluate and design public policy. They were then to ensure that these policies were implemented and that the public service was recognized as an institution and resource necessary to the state.
In 1999, the minister of state for the administration of Quebec's public service and president of Quebec's treasury board tabled a statement of government management policies. Following this statement, there were internal and external consultations.
Finally, on May 25, 2000, the National Assembly of Quebec passed the Public Administration Act. The statement of government management policies focused on the reason the public service exists—to provide service to clients. The public has become the driving force behind Quebec's new legislation.
This is an example that could have and should have inspired the federal government as it prepared the bill before us.
This statement of principles has three main aspects. First, there is a reform of training. Secondly, there is evolution in performance contracts. Finally, there is the accountability of each work unit. The Quebec reform also emphasizes reporting.
The statement provides that results will be evaluated against strategic indicators related to the economic, social, cultural or environmental impact of programs.
The implementation of Quebec's policy is predicated on the involvement of many stakeholders. First , there are parliamentarians. They are responsible for democratic oversight, flexibility, the purpose and implementation of programs. The minister is also fully accountable for the department's orientation. It is the minister who signs the performance and accountability contracts.
This feature would have added a lot to Bill C-25. The concept of accountability is critical to the principle of transparency, which is what the federal government is most lacking.
The deputy head serves as an adviser to the minister and as director of the departmental administration. Heads of agencies retain responsibility for their agency. They also have the added role of participants in the portfolio. Finally public servants assume a program management role in order to provide services to the public in a non-partisan way.
Although the new concept of merit received a favourable reception from the deputy minister and the Public Service Commission, it met with marked rejection by employees' representatives, among them the Public Service Alliance and CSN.
The specific area of controversy is the essential qualification criterion in connection with the merit principle. Some have expressed doubts that the employer can find the best candidate for a position when the requirement is merely to possess the essential qualifications, not necessarily the best ones.
We therefore have concerns that the deputy head or any other public servant might make partisan appointments or appointments to suit his own purposes, either by imposing qualifications only one person possesses or by selecting from among the candidates someone with the essential qualifications who is not necessarily the best person for the job.
The fact that the requirement is limited to essential qualifications creates ambiguity as to the level required. In other words, the term essential might mean that a candidate is required to have minimal, not the best, qualifications.
Therefore, the word essential is causing some confusion, since it leads us to believe that these are basic conditions and not best qualifications.
Paragraph 30(2)( a ) of the Public Service Employment Act reads as follows:
(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency.
We had proposed amending paragraph 30(2)( a )by deleting the word essential. We believe that, as a result, the candidate will have to possess all the necessary qualifications. But, of course, our amendment was defeated in committee, as were all but one of our 120 amendments.
In this regard, the Public Service Alliance of Canada states in its brief, and I quote:
The preamble states that Canada will continue to benefit from a public service where appointments to positions are based on merit, the principle of merit will be independently safeguarded and those exercising staffing authority will be accountable to the Public Service Commission, an independent tribunal and Parliament.
Further on, the brief reads:
Part 3 of Bill C-25, in its current form, represents a wholesale retreat from a public service defined by the appointment of the best qualified individuals. Bill C-25 delivers on its promise of increased flexibility for management, but contains very little protection for employees or the principle of merit. And, we would argue, very little accountability.
So, this bill merely increases the powers of the employer, of managers and of deputy heads, but has ignored everything to do with employee organizations, bargaining agents and, of course, if they represent them, public servants.
The PSAC also believes that the new notion of merit may put a chill on union activism, since the increased staffing power in the hands of front-line managers could enable them to slow the advancement of certain employees who are active in the union or even during the hiring process, which is even worse. We could even add political activism to this list.
Subsection 30(4) also diminishes the notion of the best candidate, since the Commission can limit the number. This section of the Public Service Employment Act reads as follows:
The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit
They are trying to say that when there is only one candidate, there will be no partisan appointment. When merit simply means a concept of merit with essential criteria and not having the best criteria, imagine how partisan the public service will become. At least, that is the big risk of this new legislation.
It is clear that this could lead to an abuse of power resulting in too broad a discretionary power. The problem with this provision stems from the fact that the aggrieved employee would not be able to appeal the decision because he will not have applied for a specific position. How could he go before a tribunal, when he did not have the opportunity to apply during the hiring period because only one candidate was chosen? Who will the candidate be? It will probably be someone in the good books of the boss, the employer, in other words, the deputy minister or the deputy head.
Moreover, with these provisions, challenging a decision becomes immaterial because a single appointment is possible. Those who oppose the concept of merit thought a compromise was possible whereby all parties would promise to release the job criteria before posting the job offer.
That way, professional requirements could not be made up on the spot for a specific candidate who happens to be in the boss's good books. Of course, the Bloc Quebecois put forward several amendments to clear up the ambiguous concept of merit, as it will probably be highly contestable and contested. However, all such amendments were rejected in committee.
It should be noted that the Auditor General is worried about the lack of rigour of the government and its departments, especially when it comes to job classifications in the public service.
The Auditor General confirmed our position in her report that was released this week, in May 2003, when she explained, in chapter 5, and I quote:
5.3 In our December 2000 Report, Chapter 21, we recommended that the government develop a results-oriented recruitment strategy that would identify post-secondary recruitment targets to address workforce renewal challenges for the years ahead. In our 2002 follow-up work discussed here, we found that some departments and the government as a whole have made limited progress in human resources planning and in establishing recruitment targets. We found that some departments and the government as a whole have not analyzed their recruitment and renewal needs. Nor does the government have a complete picture of the educated and skilled people who are entering the public service through its various recruitment routes.
The Auditor General therefore recommends reviewing how recruitment is viewed in order to strike a balance between immediate needs and the long-term strategy.
We were also happy to see in the May 2003 report of the Auditor General that our concerns regarding classification were retained as a source of problems for the government.
Since the Treasury Board Secretariat was unable to establish a classification standard that would have provided for a fair salary structure, it decided to not apply the universal classification standard that had been planned since 1991.
The Auditor General explained:
6.2 Thus, in April 2001 the Secretariat decided not to implement the Standard government-wide. This planned universal approach has now been abandoned, despite a large investment of time and effort by tens of thousands of employees and an estimated investment of about $200 million in incremental costs between 1998 and 2001.
We are also opposed to Bill C-25 because it does not provide protections for whistleblowers.
Since the sponsorships fiasco or the scandal at HRDC, it has become essential to put in place mechanisms to protect public employees who denounce practices that are questionable and possibly fraudulent.
The Public Service Integrity Office was opened on April 2, 2002. Its mission is to assist employees experiencing problems with internal disclosures of wrongdoing within their own department or when departmental mechanisms have not appropriately addressed their concerns.
According to the main guidelines of the policy governing the Public Service Integrity Officer, disclosure is defined as information raised within the organization in good faith, based on reasonable belief, by one or more employees concerning a wrongdoing that someone has committed or intends to commit. Wrongdoing is defined as an act concerning a violation of any law or regulation, amisuse of public funds or assets, gross mismanagement, ora substantial and specific danger to the life, health and safety of Canadians or the environment. It can also be an omission.
Therefore, the responsibilities of the Public Service Integrity Officer are: to provide advice to employees who are considering making a disclosure; to review disclosures and requests for review; to establish if there are sufficient grounds for review; to ensure that procedures are in place to manage instances of wrongdoing that require immediate or urgent action; to investigate or review the results of investigations; to prepare reports and make recommendations on how to address the disclosure; in cases when the departmental responses are not adequate or timely, to report to the Clerk of the Privy Council; to ensure that the protection of the information is in accordance with the Privacy Act and the Access to Information Act; to protect from reprisal employees who disclose information concerning wrongdoing in good faith; to monitor the type and disposition of cases brought to his attention; and to prepare an annual report to the Privy Council.
As for reprisals, employees who claim they are victims of reprisals can make a complaint to the office of the integrity officer only if the original complaint was lodged with that office. Reprisals include administrative and disciplinary measures.
These disclosures should be made within the employee's own department or organization. On the other hand, there may be situations in which internal disclosure is difficult or impossible. In such cases, the employee may contact the officer directly.
There also may be situations in which the employee believes that his or her internal complaint has not been dealt with by the internal mechanisms available. In such a case, the employee may contact the Public Service Integrity Officer to establish appropriate disclosure mechanisms.
The disclosure policy provides that the entire procedure should be completed in less than six months. The procedure has six steps.
In the first step, the employee provides information relevant to the disclosure, including the name of the person or persons alleged to have committed or attempted to commit a wrongdoing. The employee should also specify the date and description of the wrongdoing and the nature of the wrongdoing. The employee providing information should identify himself or herself.
Step two is the screening and review of a disclosure. In order to determine the appropriateness of investigating the information received, the integrity officer will consult the employee making the disclosure. The officer may then determine whether the employee has tried to resolve the matter using the departmental mechanisms provided. He may also decide that the matter is trivial, frivolous or vexatious.
The officer may reject the disclosure if it is insufficient, imprecise or false. During this review, the officer may reject the disclosure if it was not made in good faith or on reasonable grounds. The officer may also decline to review a disclosure if it is determined that the matter could be dealt with more appropriately under another policy, such as harassment.
As for disclosure of criminal activity, this should be dealt with in accordance with the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown.
The integrity officer will inform the employee in writing, whether or not it will proceed, and also inform the deputy head of the department.
The third step is an attempt at resolution or identifying and taking appropriate action.
If the problem cannot be resolved, the officer may initiate an investigation, even after the preliminary review. This is the fourth step.
Then, The Public Service Integrity Officer will review the results of the investigation and prepare recommendations for the deputy head. The deputy head shall review the recommendations and make a decision.
The final stage consists of presenting a report to the Clerk of the Privy Council, when departmental responses are not adequate and timely.
Although the federal government has appointed an integrity officer to investigate irregular situations reported by public servants, the scope is not broad enough to adequately protect these employees against reprisals. That is why we proposed an amendment in this regard.
We had proposed amending the bill to require the implementation of a true statutory provision to protect whistleblowers in each government department and agency.
Our concern with regard to the current disclosure protection policy is that it has no force of law and can be amended without anyone being the wiser. The scope of this policy is too narrow to truly achieve the sought-after objectives of establishing an atmosphere of trust with regard to the deputy heads so that public servants would disclose fraud.
It is difficult to attain this objective since it is only a policy and not legislation. The Bloc Quebecois proposed a specific amendment that made protecting whistleblowers mandatory within the entire public service. Of course, our amendment was defeated in committee.
However, our amendment was based on the current policy, among other things, while using the Public Service Integrity Office to manage such reports. It also sought to make this office more independent and impartial, like that of the Auditor General.
Our amendment was as follows:
“Public service integrity officer” means someone appointed by the Governor in Council pursuant to section 242.2.
242.1(1) The employer sets out an internal disclosure policy for information on wrongful acts at the workplace stipulating that:
(a) employees may disclose, in good faith and on reasonable grounds, information on wrongful acts within their organization;
(b) disclosures must be handled appropriately and in a timely fashion;
(c) employees must be treated fairly and protected from any reprisals.
(2) Employees who have exhausted all forms of recourse provided for in the policy on disclosing information on wrongful acts committed by the employer mentioned in paragraph 242.1(1) may disclose information on wrongful acts to the public service integrity officer or, in exceptional circumstances where there is an immediate threat to life, health or public safety, to an outside source.
(3) The employer's policy mentioned in this section may be subject to co-development pursuant to section 11 of this legislation.
242.2(1) The public service integrity officer acts as an independent mediator for issues regarding the disclosure of wrongful acts and must report directly to Parliament. The Office of the Auditor General provides the facilities and administrative support to the public service integrity officer.
(2) The public service integrity officer sets out administrative procedures and policies to investigate allegations of wrongful acts and to protect from possible reprisal the employees who disclose in good faith information on wrongful acts in the workplace.
(3) The public service integrity officer chooses the corrective measures that he deems appropriate.
242.3 At all times, employees are protected from possible reprisal if they disclose or provide evidence in compliance with the employer's policy and the procedures applied by the public service integrity officer established pursuant to this section of the Act.
That was the amendment put forward for this legislation, not a policy.
Another aspect I strongly advocated in committee was limited recourse for public servants. Under the legislation, recourse is limited in that only abuse of power and language choice for interviews are covered.
Abuse of power is extremely difficult to prove and that is why we feel it is essential to broaden the scope of recourse that is available to public servants so that they may report any abuse or offence to administrative tribunals or the courts.
The Public Service Alliance voiced concerns about the limited number of grounds available to employees to bring their concerns to the expert tribunal. It wrote:
This not only unnecessarily limits review of the staffing process as a whole, but has the potential to severely limit the beneficial effects of the Tribunal’s authority over human rights issues. Given the total absence of detail as to how, and whether, classification standards and selection processes and tools will be consistent with human rights principles—the limited grounds of recourse are troubling indeed.
The Alliance went on to say:
Moreover, read together with the definition of merit in section 30, proving an abuse of authority will be virtually impossible. The right to complain rests on the ability of a complainant to show that he or she ought to have been appointed. Given that the Bill expressly provides that it is not inconsistent with merit to only consider one individual for appointment makes it difficult to conceive of how one might prove an abuse of authority such as personal favouritism.11 Moreover, the requirement that the individual prove that he or she ought to have been appointed, not that the process itself reflected an overall abuse of authority, is unnecessarily limiting and sets the standard of proof too high.
There is no right to file a complaint to the Tribunal in the case of external appointment processes. Given that the Government has removed the statutory preference for hiring from within the public service, the PSAC is concerned that a higher percentage of external appointment processes will be used and, accordingly, a higher number of staffing decisions will not be subject to recourse. The PSAC urges this Committee, therefore, to recommend that the Government return the statutory preference for hiring within the public service as set out in section 11 of the current Act.
We therefore moved an amendment that would increase the number of possibilities of recourse, but once again, of course, it was defeated in committee.
As with whistleblowers, the central government developed a policy to prevent harassment and, like the policy to protect whistleblowers, we moved amendments that would have required each department to apply the policy.
We asked that Bill C-25 be amended to reflect the changes already made to Quebec's legislation on labour standards. We wanted to deal specifically with the issue of psychological harassment, which affects more than 20% of Canada's public service.
We have to acknowledge that harassment has a significant impact on productivity. The results of the June 2001 policy clearly demonstrate that the policy needs to be applied more formally to be more effective.
In other words, this policy needed to be made more restrictive, it needed more teeth, because the federal policy has a number of shortcomings that needed to be fixed, and we had the opportunity to do so when we examined this bill.
We believe, for instance, that psychological harassment should have been included in these related provisions. This type of harassment must be understood and recognized by public service managers. Unfortunately, this type of harassment is not understood. Psychological harassment is insidious and devastating, because it is not done in an overt or obvious manner.
On May 21, 1999, the Government of Quebec's department of labour published a report on violence and psychological harassment in the workplace.
The definition in this document is drawn from a document written for client service officers in Quebec's department of employment and solidarity.
The definition is made up of four elements:
Any act of physical violence (assault or aggression) directed at an employee or an employee and his or her relatives resulting from his or her status as an employee of the department;
Any demonstration of verbal or written violence directed at an employee resulting from his or her status as an employee or directed at his or her relatives, whether threats, intimidation, defamatory libel, abusive or obscene comments, blackmail or any other form of harassment.
The third element is the following:
Any act of vandalism against the property of a member of the staff because of his or her status as an employee of the department or against departmental property, including the premises occupied by the department.
And the fourth element:
Any disruptive behaviour such as blocking the entrance or counter, shouting or swearing excessively, insulting or verbally abusing the staff or anyone present, and failing to heed a warning to stop.
This report contains a definition of psychological harassment, which says the following:
—through words, actions or behaviours that tend to devalue the workers, to reduce them to mere subordinates, and hinder their career advancement. Sometimes, this kind of violence takes the form of professional harassment, abuse of power and abuse of authority.
This must happen repeatedly and attack the employee's integrity or dignity.
In the same document, the CSN specifies that psychological harassment is insidious, subtle and invisible:
We talk about psychological violence when various means are used (words, actions, looks, posture, etc.) to hurt someone emotionally.
Certain American studies go even further, adding that harassment can take the form of deceptive actions or lies, control even outside the workplace, coercion, inequity, cruelty or indifference.
A 2002 poll by Statistics Canada showed that more than 20% of government employees experience harassment in their workplace. I should point out that, at Correctional Services Canada, 32% of employees report having been harassed. Imagine that. These are alarming statistics. We must act now, not wait for more studies that will show more of the same.
The poll also made reference to where this harassment was coming from. In the case of government employees, pressure came mainly from supervisors, 74% of the time, as compared to pressure from colleagues, 65 % of the time.
Some 78% of Correctional Services employees are harassed by their supervisors. It should be noted, too, that the percentage of these employees harassed by prisoners is high, 60% compared to 10% for public servants not employed by Correctional Services. Also, 13% of these workers are victims of physical violence, compared to 2% of public servants.
The Treasury Board's policy stipulates that it aims to prevent harassment by promoting increased awareness, early problem resolution and the use of mediation.
However, the next paragraph qualifies this objective by stating that dealing with harassment can be a complex matter, which is why it is important and essential to make related amendments to give it more force of law. Our amendments in this regard were defeated in committee.
Furthermore, the Official Languages Commissioner appeared before the committee to ask that specific reference to the Official Languages Act be added. The position of the Treasury Board of Canada Secretariat is that this legislation automatically applies, by default, whether there is specific reference to it or not. The commissioner took the opposing position. She appeared before the committee to state this. That is why we presented amendments to the bill's preamble to this effect. Our amendments were defeated in committee.
As with the Physical Activity and Sport Act, we believe that explicit reference to the Official Languages Act must be made for it to have force of law. That is why we decided to present in committee the amendments proposed by the commissioner.
The purpose of commissioner's recommendations was essentially to incorporate the notion of linguistic duality for the purpose of public representativeness and making enforcement of the act mandatory, when it came to training or recourse before the courts.
The Chair is indicating that my time is up. I simply want to reiterate our main criticism. Obviously, there has been a total disregard, among other things, of our criticisms about the bill's lack of protection for whistleblowers, the notion of merit and the entire issue of protection from harassment and protection for official languages. Unfortunately, once again, all our 120 amendments, save one, were defeated.