Proceedings of the Standing Senate Committee on
National Finance
Issue 13 - Evidence - September 3, 2003, 2 p.m.
OTTAWA, Wednesday, September 3, 2003
The Standing Senate Committee on National Finance, to which was referred Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts, met this day at 2 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have a quorum.
Our first witness is Professor Ratushny, who, among other things, is a consultant to the Human Rights Commission. He is well known for his work in that field. He is a professor of law at University of Ottawa and a former director of the Human Rights Research and Education Centre. His areas of expertise, as you will see from the notes provided, include constitutional, administrative, human rights, immigration, transportation, competition, labour and sports law. I would invite you not to question him on the whole range of matters on which he is expert but rather to confine yourselves to the reasons he is here.
If you have been paying close attention to your briefing notes, as I trust you all have, you will see that Mary Gusella, Chief Commissioner of the Canadian Human Rights Commission, wrote to me last June expressing some concerns with the redress procedures in this bill because she and the commission believe that some provisions of the bill will unduly impair the ability of the Canadian Human Rights Commission to carry out its statutory mandate.
The commission, she says, engaged Professor Ratushny to conduct an independent legal analysis of the impact of the bill on the operations of the commission. Professor Ratushny's opinion, she says, confirms the concerns previously raised by the commission and proposes some simple changes to the legislation that could address them. She encloses a copy of Professor Ratushny's opinion.
All of this has been sent to you. I am pleased that Professor Ratushny has made himself available to us this afternoon to discuss these matters.
Without further ado, welcome, Professor Ratushny. Please proceed.
Professor Ed Ratushny, Law Professor and Consultant to the Canadian Human Rights Commission: I was asked to speak for five or ten minutes and then to be available for any discussion you might wish to have about these issues. I will address one very small but extremely important facet of this legislation, that is, the impact of this legislation on the role of the Canadian Human Rights Commission.
In the opinion that you have been given, I start out by suggesting that there are very many good features of this legislation. The idea of having all disputes dealt with at one hearing at the outset, including human rights issues, is a good one. It is good because it helps people to think about human rights in the workplace, makes it part of the way people are treated in the workplace. It has an educational function for adjudicators and for those affected by it.
That general approach is a good one. The difficulty is that there is an overarching role for the Human Rights Commission in dealing with human rights in Canada — education, enforcement of non-discrimination provisions, et cetera. That role is buried by this legislation. I should like to highlight what I see as the problem. The proposed solution in legislation appears to be inadequate. I will suggest a very slight amendment that I think would address the problem.
The legislation recognizes the overarching responsibility of the Canadian Human Rights Commission and makes a provision for the commission to intervene in specific cases, presumably to introduce their role in that way. If there is a grievance by an employee that includes a human rights issue, the legislation provides that the Human Rights Commission can come in as an intervenor to raise those broader human rights concerns.
There are a number of problems with that approach. First, the grievance situation is essentially contractual. It is a labour issue involving two parties, the employer and the employee. Human rights legislation has a much broader dimension to it. It has been considered by our courts to be fundamental, almost constitutional, in nature. The Supreme Court has said that in many cases. If there is a conflict between human rights legislation and any other legislation, the human rights legislation shall prevail. As a result, this kind of forum is not really appropriate for those broader issues to be raised.
Second, the legislation allows a griever, after a grievance has occurred, to go to the Human Rights Commission with his or her complaint if the griever is not satisfied with the way the human rights aspect was addressed. This places the commission in a very awkward position. If the commission has come in as an intervener, as a party in effect, they are arguing the case before the arbitration. Afterward, the griever comes to the commission and asks the commission to adjudicate on the human rights issue. There is a conflict in those two roles. I can see all kinds of litigation arising out of this in the Federal Court of Canada because of the failure to recognize that possible perception of bias in terms of the role of the commission.
The brief outlines in more detail the importance of the Human Rights Commission in this role. Parliament — you people — gave the Human Rights Commission a broad responsibility to administer this important legislation, which is quasi-constitutional. The commissioners have the same tenure of office as superior court judges. The standard for removal is an address to both Houses of Parliament. Hence, it is embodied in this legislation that this is a special role, a very important role, and one that should not lightly be interfered with.
There is an important report by the La Forest committee on human rights legislation. They did a very comprehensive survey of human rights commissions in Canada, particularly the federal one, and made a number of recommendations. At page 4 of my opinion, I list a number of the specific objectives that the La Forest committee said should be included in human rights legislation — a claims process that is expeditious, a rule-making function, policy information. Those are some of the broader values that human rights commissions bring to the table when dealing with human rights matters.
These, I think, are ones that could be incorporated in this legislation. My proposal is that, rather than trying to introduce the commission into these arbitrations as a party, as an intervener, just give them notice and allow them to identify any cases where there are exceptional circumstances that warrant a broader human rights look at the particular case.
At page 5 of my brief, at the bottom in the English version, section 210 currently says that when an individual grievance has been referred to adjudication and a party raises an issue involving an interpretation or application of the Canadian Human Rights Act that party must give notice to the Canadian Human Rights Commission. That is good. Notice is given to the commission of all of these cases involving a human rights aspect. Subsection (2) says that the commission can intervene, can become a party. I would recommend that this section be amended so that the ability to intervene be eliminated, and in its place there be an opportunity, a right of the commission, to remove exceptional cases from this process and to deal with them as human rights cases.
The exceptional circumstances mean that this would only occur where there are some of these broader factors implicated, namely, where there is a rule-making aspect to it, where there should be a broad rule that applies to many cases, not just this one, where there are policy considerations or where the result in this case can affect the rights of many other people who might have these problems. In those exceptional circumstances, that is, where it is not just a grievance between the employer and the employee, the Human Rights Commission should take that case and deal with it as a human rights case — and deal with it in all of its manifestations.
As I said earlier, the current legislation still allows a griever to go to the commission after the arbitration. The problem is that that will be on an ad hoc basis and usually the griever will be unhappy with the result. It will not be a principled approach that will select those cases that truly are exceptional and truly warrant this special consideration.
I suggest there could be an expedited process for the commission to make its decision, say, within 30 days, as to whether it will take a case or not. In the vast majority of these cases, the commission would not have the resources to deal with all of them. They are quite comfortable having the labour arbitration process deal with them.
To summarize the important aspects of my presentation, first, the very special role of human rights commissions, the responsibility given to them by Parliament under their legislation, the attempt by this legislation to provide an avenue for them to be involved but the choice of intervenor being very inappropriate. Instead, the same notification should be given to them, but rather than intervening in the labour arbitration they should be able to remove transcendent cases and deal with them as human rights cases.
Senator Kinsella: I am pleased that Professor Ratushny has raised this issue with us because it is troubling. Part of the trouble in my mind is not only with this bill but also with the experience under the Canadian Human Rights Act and the two quite different functions that are played by the Human Rights Commission on the one hand and the tribunal on the other. Unlike the situation with many of the provincial human rights acts, there is a much closer and more fluid relationship between the commission and the boards of inquiry.
If the whole section were simply left out and the allegations of discrimination on the prohibited grounds contained in the Human Rights Act were such that public servants would go, as they have been presently going, to the Human Rights Commission, do you think that would be much better than this system? Why change it? Let me put it this way: What, in your view, do you think is broken that is being fixed by this?
Mr. Ratushny: I think that there is a value in having all aspects of a grievance dealt with at the same time — in other words, a discipline issue and some other things intermingled with a human rights allegation of, say, racial discrimination or something like that. If you can deal with all those in one-stop shopping, it is more efficient. As I suggested early in the brief, it also has a value for the workplace, where the workplace becomes conscious of human rights issues. It becomes part of educating the adjudicators, the arbitrators and the employees. There is that educational aspect.
In most cases, the ordinary practice of the Human Rights Commission presently would be to encourage complainants to see if it can be resolved in the grievance process, if it can be.
You raise a good point, which deals more with human rights legislation than with this legislation. However, there are problems with the Human Rights Commission being flooded with so many complaints. La Forest, for example, recommends that some of these should go directly to the tribunal and the commission not have to be an extra step in the way. I understand from the new chairperson of the commission that there will be more done along those lines as an operational procedural approach rather than a fundamental legislative change.
To answer more succinctly, I believe there is a value in resolving human rights issues through the arbitration process, except for those transcendent cases.
Senator Kinsella: Under the Canadian Human Rights Act, when a case of discrimination that the commission believes to have merit and has been unable to effect a settlement goes to a tribunal, the commission currently has standing before the tribunal, is that not correct?
Mr. Ratushny: That is right.
Senator Kinsella: In your mind, will the standing that is envisaged by Bill C-25 to give the Human Rights Commission standing for the new staff tribunal be equal to the standing that the commission has before the Human Rights Tribunal?
Mr. Ratushny: It will not be. There is a fundamental distinction between the two situations. In the ordinary human rights cases, as you point out, it goes from the commission to the tribunal, and the tribunal is the final stage of that process, apart from judicial review in the Federal Court. Here, under this legislation, the commission becomes an intervenor at an earlier stage and then the matter can still come back to the commission. That is what creates the problem of perceived bias.
Of course, the courts have struggled with the preceding legislation. There were cases where the courts have said that the role of the commission in terms of actually dealing with cases and then referring them to the tribunal and picking the tribunal members, and so on, created a bias. With your experience, you know those cases. That is the kind of problem I would envision arising here.
Senator Furey: Professor Ratushny, can you envision a situation where an employee appeals to the tribunal — his matter has a human rights flavour to it — but during the course of his appeal, before a final determination, also complains to the Human Rights Commission? If so, what would happen in that circumstance?
Mr. Ratushny: I am not familiar with all of the details of the legislation, but my understanding is that the ability to go to the Human Rights Commission is after the appeal here has been completed. I do not think there is a right to go during the course of an actual determination.
Senator Furey: Okay. In answer to a previous question, you indicated that in the past the tribunal was the final resource before going to the Federal Court. What will happen now? How big a problem will it be if you go to the tribunal with a human rights type issue? Will the courts send you back and say, ``Look, you have not really been to the Human Rights Commission yet, you have only been to the tribunal''? Will this create a problem?
Mr. Ratushny: I can see all kinds of problems like that in terms of sorting out where the traffic goes here. I can see litigation. I can see this process being bogged down with those kinds of concerns and challenges. Therefore, I think you raise a valid concern. Allowing the commission to pre-select the cases is an easy solution to that.
[Translation]
Senator Gauthier: I am not a specialist in this field, as you are. As I understand it, an ordinary official who does not know all the statutes must first of all exercise his right to appeal to the Public Service Tribunal before going to the commission. The Human Rights Act says clearly that all avenues have to be exhausted before a complaint can be taken to the commission. Is this correct?
[English]
Mr. Ratushny: Yes. There is a little twist on it, though. Because of Federal Court interpretations, they have said that the commission has to actually send them to the tribunal. In other words, they have to file their complaint with the commission, and the commission then has to make a decision that you go back and exhaust your existing other possible remedies before coming to the commission. That is another thing that would be eliminated by the proposal that I have made.
[Translation]
Senator Gauthier: An official who has taken an oath of office and who has obligations towards his employer determines that he is being treated improperly. He wants to file a complaint with the commission. This is something he cannot do before going to the Public Service Tribunal. Is that correct?
[English]
Mr. Ratushny: Yes, that is exactly what would occur. The person would go to the tribunal in every case and the proposal is that that would continue. It would only be cases where it involves a human rights issue first and, second, an exceptional human rights issue.
[Translation]
I am told that members of the tribunal would not necessarily have the training or knowledge needed to rule on a human rights case. If the statute does not oblige members of the tribunal to have specialized training in human rights, they would not be qualified to rule on a human rights case.
[English]
Am I correct in my interpreting that there is nothing in the act that says these members of the tribunal must have a certain training, development or experience in the fields of human rights?
Mr. Ratushny: You are absolutely right, and I believe that is an extremely important point. I actually identified the specific requirements in my brief as to the training required for a member of the tribunal, as opposed to the training required for a member of the Human Rights Commission.
The training for a member of the tribunal is simply to be familiar with labour arbitration, that sort of thing. However, a member of the commission, in addition to that, is required to have knowledge, experience and sensitivity toward human rights issues.
Therefore, the problem you raise, senator, is very important. These arbitrators will be dealing with this human rights legislation, some of which is quite complex, a lot of court cases involving this legislation, and they are not required to have expertise in that area. I believe what the drafters of the legislation thought was this: ``We will let the commission intervene, and when they intervene they can educate these arbitrators as we go along.''
That is an inefficient way of doing that. The ideal would be for the Human Rights Commission to put together programs of education for adjudicators, helping them to learn about human rights matters and what they should be doing, et cetera. However, it would not be appropriate if there are interveners arguing cases before them and then holding seminars telling them how to deal with human rights issues. That is a very important point.
[Translation]
Senator Gauthier: I have always believed that administrative tribunals — which we call commissions — were established to meet the need for a certain expertise. So I understand your argument. You are right in saying that the commission should provide the tribunal with human rights training. Otherwise, the jurisprudence will simply not hold up. We will have decisions not supported by legislation, as opposed to those of the commission. This would be an untenable system. Am I wrong?
[English]
Mr. Ratushny: All I can say, senator, is right on!
The Chairman: Professor Ratushny, in the letter that Ms. Gusella sent to us, a covering letter with your opinion, she says that the commission drew this issue to the attention of the minister. I take it that the minister and her officials considered the matter and declined to change the bill in that respect. You may or may not have been privy to those discussions, and we can always ask the minister when she appears before us. Do you happen to know what is the position of the government? Why do they think it is not necessary to amend the bill as you have suggested or indeed that it would be a mistake to amend it as you have suggested?
I also note that Ms. Gusella says that the commission drew it to the attention of the House of Commons committee. Did you appear before that committee?
Mr. Ratushny: I did not. I was not invited.
The Chairman: They amended the bill in several particulars, and the House of Commons adopted their amendments. Do you happen to know why they declined to take this up?
Mr. Ratushny: First, I was not involved with the commission at any stage until the chairperson asked me to look at the legislation and formulate an opinion. That was in April or May. I do not know the history of dialogue between the commission and the various officials who were preparing the legislation.
I do not know why this was not addressed. I do not know that the specific recommendation I have made has ever been made before. It arises in my analysis as being a mechanism for dealing with this, and so it may be unique, it may not have come forward before. However, when was the Commons looking at this?
The Chairman: Last spring, in April, May.
Mr. Ratushny: It might have been before my opinion.
The Chairman: The bill came to us in June.
Mr. Ratushny: It may have been before my opinion was available or during that time, I just do not know.
The Chairman: We are hearing it first, colleagues.
Senator Kinsella: On the point raised by Senator Gauthier in terms of knowledge and experience with respect to the members of this new tribunal, subclause 18(1)(e) says that the members of the board must have knowledge of or experience in labour relations, and I do recall the section in the Canadian Human Rights Act dealing with tribunal members, because I remember the drafting of it, where we were explicit in saying to be a member of that tribunal one has to have experience and expertise in the human rights field.
Would you not think that an amendment to this bill on the qualifications of members of the new staff tribunal is in order, that we should make that explicit, and if so where?
Mr. Ratushny: For clarification, at the bottom of page 2 is the English version of my opinion. It says that clause 18(1) requires adjudicators to have ``knowledge of or experience in labour relations.'' It is the second last paragraph of my opinion.
Tribunal members have ``experience, expertise and interest in and sensitivity to human rights'' That is the provision to which you refer.
Senator Kinsella: That is for members of the proposed public service labour relations board.
Mr. Ratushny: A member of the board is to have knowledge of and experience in labour relations, but for the commission, it is section 48.1(2), ``experience, expertise and interest in and sensitivity to human rights.''
Senator Kinsella: What of the issue of the qualifications necessary for members of this new staff appeal board?
Mr. Ratushny: They do not have a human rights requirement, and you are suggesting that perhaps it should be amended to require them also to have human rights.
Senator Kinsella: That is my question to you.
Mr. Ratushny: That would be nice. I think it would be helpful. The more breadth of experience these people have, the better. Senator Gauthier pointed out that administrative tribunals — and you know this as well as anyone — are designed often to bring expertise to bear. The human rights component is relatively small, I think, compared to the labour component. Therefore, if you did have the current requirements, but overviewed by the Human Rights Commission, I think you could resolve that problem, together with education of them as they go along and that sort of thing.
Senator Gauthier: For clarification, did you say that the commission is a quasi-tribunal?
Mr. Ratushny: That is right.
Senator Gauthier: If they are invited to the tribunal to appear as an intervener and they refuse on the basis of partiality, believing that if they appeared they would prejudice their opinion or their judgment, would that be qualified?
Mr. Ratushny: I think they will have to do that. It will be very difficult for them to show up as interveners. I would expect a practice to develop that they simply would not intervene. Otherwise, they would be jeopardizing their role if someone goes to the commission after.
Senator Gauthier: So your advice to public servants is not to go to the tribunal but to go to the commission?
Mr. Ratushny: There are a lot of things you have to balance in giving advice, but I think that if you want a quick, expeditious resolution, this tribunal under the act would probably be faster. If you are worried that the human rights issue is complicated and the tribunal might not understand it, then you would probably want to send them to the commission.
Senator Oliver: My question will be brief because the chairman has already asked the very question I wanted to put to you arising from Ms. Gusella's letter, but I would like to take the question one step further for clarification. Is it possible to cure the problem that you, in your opinion, have found with anything short of an amendment to the legislation?
Mr. Ratushny: I do not think so, because it is the legislation that attempts to solve the problem by having an intervener. It is ill-conceived and must be replaced by another approach.
Senator Oliver: In other words, is it possible to make the change by a regulation or a directive?
Mr. Ratushny: A regulation cannot be inconsistent with the statute, and so I think you might run into problems there.
Senator Oliver: Therefore, it must be an amendment.
Mr. Ratushny: I would think so.
Senator Oliver: If there is going to be an amendment along the lines of the one you have suggested in your original testimony, is it also necessary to enumerate the exceptional circumstances that you found in the La Forest report so that there could be some guidelines to know when it should and should not go to the commission?
Mr. Ratushny: Yes, that would be an excellent thing to do, and that could be included in the regulations.
Senator Oliver: What is an exceptional circumstance?
Mr. Ratushny: Exceptional circumstance as defined in the regulations, and then you could go to the regulations.
Senator Ringuette: My question is similar to Senator Oliver's. I do not have a legal background so I am wondering what an exceptional circumstance is. How do you define an exceptional circumstance? You have said that that could be defined in the regulations.
Mr. Ratushny: Yes, and the example I have given is taken from the La Forest report. They received many representations from different stakeholder groups and they produced the list found at the top of page 6 of the English version.
Does it raise a serious issue of systemic discrimination? If it is not only a matter between an employee and an employer but there is a systemic issue, let us take a broader look at it and at how it implicates others. Does it raise a new point of law or might it resolve confusion in an existing one where the resolution of a particular issue has implications for many other cases, even cases that do not exist yet, by clarifying the law and so on? Is it of such complexity and importance that it requires that expertise that we were talking about earlier?
I think those are all very good criteria.
Senator Bolduc: I would like a small explanation on your own proposal.
[Translation]
You say that the commission could refer issues to the Public Service Staffing Tribunal for arbitration?
[English]
On the initiative of whom?
Mr. Ratushny: It would be the initiative of the commission.
Senator Bolduc: She would exercise a kind of oversight on the process?
Mr. Ratushny: Exactly. The commission gets notice of each of the cases where there is a human rights issue.
Senator Kinsella: Is it correct that under the Human Rights Act currently the federal commission can initiate complaints?
Mr. Ratushny: Yes.
Senator Kinsella: What about the initiation of a complaint under this process that is envisioned by Bill C-25? In other words, if the Human Rights Commission, apprehending a systemic problem, decides to initiate under this regime, would that be possible?
Mr. Ratushny: Yes, and that is another very good suggestion that you raise. Part of the Human Rights Commission's responsibility under the legislation is to monitor discrimination where it occurs and to report to Parliament on that. If they see these complaints coming in from the public service and they see patterns arising that indicate a systemic problem, they could well initiate something like that, and it would be very helpful.
[Translation]
Senator Gauthier: Now for another hypothetical question, professors.
Mr. Ratushny: Professors are used to such questions.
Senator Gauthier: Consider an employee who has filed an appeal with the Public Service Staffing Tribunal, but who is not satisfied with the tribunal's ruling. According to Bill C-25, the employee could file an appeal with the Federal Court under specific circumstances. But could he go to the Federal Court to appeal the decision made by the Public Service Staffing Tribunal?
[English]
Mr. Ratushny: Appeal is a creature of statute. You only have an appeal where it is specifically provided for, but judicial review is available on a broader basis. Therefore, while there is no appeal to the Federal Court, judicial review is possible. As you know, the grounds for judicial review are outlined in the Federal Court Act itself. Therefore, judicial review certainly would be possible.
Senator Furey: To follow up on Senator Oliver's question, which was very cut and dried in terms of your amendment, Senator Oliver indicated that there was no way to resolve this other than by amendment. Can the legislation stand on its own, and will it eventually work its way through the problems that you see here through the judicial system and through case law?
Mr. Ratushny: I guess it is possible but it would have to be sorted out in some way. As a result, I would think that an amendment would have to take place in the future because of the litigation, et cetera. It seems to me that you, as legislators, have an opportunity to deal with it in a way that would avoid all of those problems. It is always better to do it by legislation, if possible, rather than by relying on the courts.
The Chairman: We will live leave it at that. We appreciate hearing your analysis and the opinion you gave to the Canadian Human Rights Commission on this matter.
Honourable senators, our next witness is the Auditor General of Canada, Ms. Sheila Fraser, who has been extremely cooperative and helpful to this committee and its work. In turn, we have tried to be helpful to her and her office to the extent of pursuing issues that are of mutual interest.
We are happy to welcome you once again, Ms. Fraser. Please proceed with your opening statement.
Ms. Sheila Fraser, Auditor General of Canada: We thank you for this opportunity to appear before the committee to speak to Bill C-25, proposed legislation to modernize the Public Service of Canada. With me today are Mr. Jean Ste- Marie, Assistant Auditor General, and Mr. Claude Brunette, Director, Human Resources Management, whose audit team has conducted much of our audit work on this topic.
We have stated that good government depends on the performance of public servants. How they are recruited, trained, managed and treated is of great importance to an effective public service. The government's personnel costs represent a significant investment that has to be managed well. Our past audit work has drawn attention to the importance of modernizing legislation.
Mr. Chairman, Bill C-25, in respect of a proposed public service modernization act, proposes to significantly change the legislative and institutional framework for human resources management in the public service. We have followed, with great interest, the work of the Standing Committee on Government Operations and Estimates over the last few months, as well as the debates in the House.
[Translation]
If the bill is passed, Treasury Board would have a significantly enhanced role because of its expanded responsibilities as an employer. We are pleased to see that Treasury Board's expanded role would include reporting to Parliament on human resource management matters. This approach will lay to rest some of our concerns on reporting requirements and on fragmented roles and responsibilities.
Bill C-25 would also change the staffing regime. In addition to describing key public service concepts and values, the bill clarifies the definition of merit. It establishes a new staffing recourse process, and brings changes to the system governing political activities. The proposed changes to the staffing regime are consistent with our previous reports and our findings from recruitment audits.
The Public Service Commission would refocus on its core mandate as it relates to the staffing system, and the protection of merit and non-partisanship in the public service. It would report annually to Parliament on activities conducted as part of its new mandate, and under special provisions could report on other important or urgent issues, a system that resembles our current legislation.
The bill would make deputy ministers clearly responsible in law for many aspects of human resource management. However, in areas such as staffing, the government would use a delegated model. The practical aspects of accountability for these new powers still have to be worked out.
[English]
Mr. Chairman, we see the proposals as an improvement to the existing system. We believe that if Bill C-25 were passed, it would contribute to reforming human resources management. Over the years, jurisprudence has made the current system rigid and prescriptive. In our modern period of rapidly changing demands, the public service needs to respond in a more adept way. We do recognize that Bill C-25 does not cover everything, but it is an important move in reforming human resources management.
We are also pleased to see that the proposed legislation calls for a legislative review after a fixed period of five years. This would allow Parliament the opportunity to assess the impact of the new legislation on the public service and to propose any necessary changes or improvements. It will be critical for the government to have effective monitoring mechanisms to ensure that issues are well understood and dealt with accordingly and that sufficient data is collected for analysis in support of the five-year review.
We want to point out that this legislative proposal is only one component of the modernization of human resources practices. The whole human resources management framework needs to be updated, to reflect not only the new legislative requirements but also the new management requirements, such as recruiting and classification.
Furthermore, given the significance of the proposed changes, the transition must be well-managed and supported. For example, training and support must be provided and expectations must be clarified. In addition, sufficient resources must be provided to allow this initiative to succeed.
[Translation]
Momentum must be maintained over the long run. This will require leadership from senior public servants, as well as Parliament's commitment to oversee the implementation of modernization initiatives, and to monitor progress. My Office intends to follow this situation closely and report on the progress to Parliament.
[English]
Mr. Chairman, we would be pleased to respond to the committee's questions.
[Translation]
Senator Bolduc: My first question is on organizations that are no longer part of the public service. Professor Hodgetts spoke to us yesterday on what he called a sort of unorthodox structure, a structure whose components are not fully within the system. Do you audit the Canada Customs and Revenue Agency?
Ms. Fraser: We do audit the Canada Customs and Revenue Agency, as well as the Canadian Food Inspection Agency, Parks Canada, and other agencies that are no longer part of the public service.
Senator Bolduc: Since the new Canada Customs and Revenue Agency Act was passed, have you had an opportunity to study the agency's personnel management model? Is the model an efficient one?
Ms. Fraser: We have not audited the entire human resources management system as such. As part of our audits of some agency services, we have examined human resources management practices. In the international taxation sector, we have examined skills and recruitment difficulties. However, we have not examined the entire management framework.
There is, indeed, an audit scheduled for 2005, during which we will review human resources management practices and see whether the agency's model, which provides a great deal of flexibility, can be used elsewhere. We want to determine whether we can draw lessons from the agency and apply them to other departments and other organizations.
Senator Bolduc: Those are all my questions for now.
Senator Gauthier: I am going to ask you the same questions I asked Mr. Desautels this morning. To some extent, your financial resources are monitored and controlled by Treasury Board. You are a senior official of Canada's Parliament. There are five such officials. Are you satisfied by the way in which your budgets are established by Treasury Board? I asked Mr. Desautels this question, but he said that he did not succeed in finding an acceptable solution. We could do as the British do, said Mr. Desautels, and pass votes in the legislature. How do you feel you could be independent when you are under the financial control of Parliament?
Ms. Fraser: The Office has been raising this concern for some years now. Basically, we are obliged to do what any government department does, and occasionally have to negotiate our financial resources with the Treasury Board Secretariat. There is a risk of conflict, and of undermining the Office's independence. To date, we have managed to agree. I believe we have had the funding we need to operate properly, but the situation is not an ideal one. When we needed additional funding two years ago, we agreed with the government to undertake a study and find a mechanism that would ensure greater financial independence for the Office.
At present, we are in the middle of talks with TBS, and I believe that within a month or two there will be concrete proposals on an operating model that we can submit to you and to the House of Commons. This will not be the British model, where a parliamentary committee studies the financial resources issue; we would still go through the Public Accounts Committee, to which we report and which examines our performance reports. I have high hopes that we can arrive at a solution that will satisfy all parties.
Senator Gauthier: The reason I am asking this question is that, in Bill C-25, some management rights are transferred, or delegated, to deputy ministers. What bothers me somewhat is that I know deputy ministers meet regularly to discuss orientations and government policy. Have you ever taken part in those meetings?
Ms. Fraser: No, I do not take part in those meetings. I believe that as an independent agent of the government I should not attend meetings of that kind.
Senator Gauthier: Your predecessor, Mr. Desautels, said that he participated in an advisory committee of the Privy Council and Treasury Board. Do you take part in those meetings?
Ms. Fraser: No, I do not take part in them. He did not take part in them either while he was in office. Now that he is retired, he takes part in them.
Senator Gauthier: But you do not take part in them?
Ms. Fraser: No, never.
Senator Gauthier: Bill C-25 makes no mention of language training. Since I am familiar with your interest in this issue, could I ask you to give us some information? Where will language training be in the new administrative framework? Who will be responsible for language training? We are told it will be the Public Service Commission. Do you have any information on that?
Ms. Fraser: I do not have any more information than you do. I know that no decision has yet been made on who will be responsible for language training. I agree with you that this is a very important issue, and that roles and responsibilities relating to language training should be clarified.
Senator Gauthier: Training involves today's needs as well as tomorrow's. And you need to be looking forward. So we will give deputy ministers responsibility for development, and the commission responsibility for training. We will have the kind of organization in which every department has a development program for its own staff, while the Public Service Commission remains responsible for training public service employees as a whole.
Ms. Fraser: I do not know whether this has been examined in detail. As I said, many operational details and aspects regarding transition and implementation remain to be studied and clarified. This is very important. Again, I would raise the issue of resources allocated to ensure completion of this initiative. People will have to study the issues and put in the time needed to ensure that the process works.
[English]
Senator Kinsella: I wonder whether the Auditor General would share her views as to the appropriateness of a whistle-blowing mechanism in a modern public service?
Ms. Fraser: It is not an area that we have looked at per se so far, though I will tell the committee that we have a report coming in November that will be looking at values and ethics that might discuss whistle-blowing. I think it is a subject that needs to be studied. I think there is a lot of attention being given to it currently and a lot of questioning about whether whistle-blowing legislation is required.
I think we need to study whether it has been effective in other countries. Would it work in our society? Why? What are the problems with some of the current mechanisms that are available to people? Why are they not being used? I believe, for instance, that the Public Service Integrity Officer is bringing forward a report sometime this month. I think he will certainly have some very interesting comments. I think it is an important area that requires study and reflection.
I would think, too, should it be proposed that there be, it should apply to all public service, and not be limited for instance, as Bill C-25 is, to just the core, if you will. I think it is a question that merits study and attention.
Senator Kinsella: One of the items drawn to my attention during our hearings is the classification study that has gone on. I worry when I hear the suggestion made that we should take a lot of time studying things. Am I correct that this has cost several millions of dollars so far?
Ms. Fraser: At least, yes.
Those are direct costs related to this universal classification study — UCS. That does not take into account the time spent by thousands and thousands of employees who did work descriptions, and all the rest of it, so hundreds of millions would not be an exaggeration.
Senator Kinsella: This committee has been studying whistle-blowing for some time. It certainly did not cost several million dollars to do so.
In our discussions with other witnesses, the topic of the functional relationship of the head of the Public Service Commission with the deputy minister community has arisen. Some curious theories, in my view, were enunciated.
Do you, and did not indeed your predecessors, meet with deputy ministers fairly regularly? Is there not, for example, a monthly luncheon of all the deputy heads and the Auditor General?
Ms. Fraser: I am invited to attend, and I will occasionally attend, the deputy ministers' lunch. That is quite different from attending the weekly breakfasts, which are much more discussions of application of policy. The lunches are an interesting time to get together to hear a speaker. It gives me an occasion to meet the deputy ministers. I will, of course, occasionally meet deputy ministers in the course of an audit or related work.
I find in my position that it is important that I not be seen to be part of the deputy minister community or to feel that I am part of that community. When you are doing an audit function or a control function, you cannot at the same time be part of the decisions as to how government is operating. There is a line that you should not cross.
We have raised in past audits the dual role of the Public Service Commission, where they were involved in delivering service and yet at the same time had a control function. This legislation is clarifying that. They will move to the control function and should be relinquishing the service area. I do not think you can do both.
Senator Kinsella: You are supportive of that?
Ms. Fraser: Yes, very much. I think it is important to have a clear role.
Senator Furey: In the past, you have expressed some concerns about the use of corrective actions in the PSCA. I believe that it centred on a concern that these actions would go beyond the auditing role envisioned by the act. Is this still a concern of yours, and if so, how big a concern is it?
Ms. Fraser: You are talking about the audit role of the commission and how far the commission could go in taking corrective action?
Senator Furey: Yes.
Ms. Fraser: I firmly believe that managers should manage and that managers should be held to account for how they manage. If you have an outside body that then comes in to start to manage, the line starts to blur.
The Public Service Commission has a strong action that it can take. In this legislation, it could remove delegation for staffing. That is a pretty big stick, frankly.
Managers should manage, and they should be held to account for their management. The role would be much like the role that the Auditor General plays where we can report our findings but do not actually do the financial management. It is important that those roles again be separated.
Senator Oliver: I was interested in your response to some of the questions put by Senator Gauthier when he was asking about the Auditor General's funding, the relationship with Treasury Board and the U.K. model.
With Bill C-25, there is a new role carved out for the Public Service Commission. As you just stated to Senator Kinsella, they will be ridding themselves of some of their obligations and authority, which will take them out of a potential conflict situation.
Will there not still be some kind of a conflict situation if they have to go to Treasury Board and beg for more money to do the expanded role they will have with some auditing? If that is the case, what do you recommend be done about it?
Ms. Fraser: As I mentioned, we are working on a proposal with the Treasury Board secretariat to develop a mechanism that would apply to officers of Parliament generally.
Senator Oliver: That would include the Public Service Commission?
Ms. Fraser: It could possibly include it. It would be important though that the Public Service Commission's role be clarified. Is it an officer of Parliament? If it is, the sort of funding mechanism that we will propose could certainly apply to it. It would apply to many others as well.
I will raise an issue. There are other entities in the same situation. The Human Rights Commission would say that they are in exactly the same situation.
At the end of the day, if the head of an agency does not believe their funding is appropriate, they should have a mechanism to approach Parliament. The final arbiter should be Parliament.
Senator Oliver: That is an excellent answer. Thank you very much.
The Chairman: We started this discussion a while ago. I am not sure the committee should not consider pursuing it in the fall.
Senator Ringuette: I want to start by commending you for the excellent reports that you do. I read them with great interest and find all kinds of interesting stuff in them.
Let me read from your May 2003 report under the heading of ``Post-Secondary Recruitment Program of the Federal Public Service,'' in which you state:
In our 2002 follow-up work discussed here, we found that some departments and the government as 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.
It continues later on, on that page, as follows:
Departments need a balance between hiring to fill immediate vacancies and hiring strategically...
I am reading this and understanding exactly what you are saying. I am looking at your presentation of today about the proposed bill. Is your support for Bill C-25 a conditional or an unconditional leap of faith?
Ms. Fraser: We support Bill C-25 because we believe that the current system does not work. We did an audit in 1999 that showed that in the human resource system in government there are 70,000 rules. It is an old system. It has not been updated to modern times.
The first step in that update was to clarify roles and responsibilities. However, this legislation will not fix all the problems. That is obvious.
I mentioned in my opening statement that there is an entire human resource framework that must be examined. Issues such as classification are huge. After years and years and hundreds of millions of dollars of study, those issues have not been resolved.
Recruiting is a big problem. One of our audits showed that 90 per cent of the people hired into the public service entered on short-term contracts. You cannot build a strong public service with short-term hiring.
There are many issues. There is a huge list of issues that have to be dealt with. Government really needs to put attention to this, and they have to put the resources to it.
I see this as one step in the whole process. Perhaps it is a significant step because legislation indicates an intent. People may take it more seriously because of new legislation being in place, but in no way will it solve all the problems.
Senator Ringuette: Nowhere does Bill C-25 mention or make it a requirement of human resource planning in order to receive the delegation of authority.
Ms. Fraser: I agree.
Senator Ringuette: There is the delegation of authority, but there is no requirement in Bill C-25 for deputy heads or for managers, as per Bill C-25, in order to receive that delegation, to show managerial responsibility by at least having a human resource plan.
Ms. Fraser: I am not sure that everything needs to be put into legislation. I would hope that the report, for instance, the Treasury Board secretariat will be producing every year on the state of human resources will address those kinds of issues and that if Parliament, amongst others, takes an interest in this, it will focus attention on the need to plan and the need to pay much more attention to human resource management going forward.
Senator Ringuette: In regard to post-secondary recruitment programs, you indicated in your comments that you have observed that when a directive is not issued by the commission to a certain department to use a program the department does not use it. How do you see Bill C-25 and this delegation and this separation of power with the commission enhancing the use of the post-secondary recruitment program?
Ms. Fraser: The post-secondary recruitment program that we looked at was significantly improved and was still fairly new. I think there is a marketing effort, if you will, that needs to be made to get departments to use it more. Again, I am not sure that legislation will accomplish it all. There are a lot of other activities. Departments have to see that it is easy to use, that they get good candidates out of it, that it is flexible and that it helps them. Many other efforts and initiatives have to go on in parallel with legislation, or perhaps in addition to legislation, in order to get people to change the way that they manage their human resources.
[Translation]
Senator Chaput: I always find it a pleasure to hear your presentations. I attended your presentation of your last audits, and found your comments very interesting. I read your audit reports on government departments very attentively.
We have a sense of security when you conduct an audit and make recommendations for future corrective measures. If I understand correctly, your financial resources enable you to audit four to five departments each year.
Ms. Fraser: No, we audit the public accounts of Canada, and therefore have to audit about 20 or 25 departments. Moreover, as part of our value-for-money and report auditing, we prepare about 30 reports annually.
Senator Chaput: A bill like this establishes new institutions, such as the tribunal and new training school. Will it require many hours of audit work on your part?
Ms. Fraser: Not necessarily. These organizations are not likely to have financial statements requiring yearly audits. We will add them to the cycle with other agencies. In recent years, we were unable to audit small agencies and tribunals as often as we would have wished. The focus is often on departments with the largest budgets. But we are establishing planning and a strategy to expand our presence. This will of course require additional funding, but we have received the funding we will need.
Senator Bolduc: You seem fairly optimistic that this bill presents advantages over the previous system. I understand that senior officials and departments are satisfied, because they will have additional powers. The commission seems satisfied because its roles have been clarified. It has lost some of its responsibilities, but has received others and is generally satisfied. Treasury Board will have expanded powers as usual, and is satisfied as well. There will be a general arbitration tribunal. In the first part of the bill, the Labour Code applies and unions are happy. There are 250 articles; it is a special Labour Code for the public service. As for the public service itself, there are 135 articles relating to employment, of which about 30 deal with appointments and preference. Seven articles focus solely on the preference to be given to certain groups. Much is made about a complaint procedure and appeals that employees will be able to make. In the past, the Public Service Commission had its own appeal board. Now, the bill has turned the board into a tribunal. Those people are therefore happy. Senior officials are going to be allowed to make policy.
I will confess that, as I come from a different generation, I find much here outrageous. But I seem to be the only one to be outraged. Mr. Hodgetts and Mr. Franks were outraged yesterday, but many witnesses have said that they are quite happy with the bill. So everyone is happy, and we carry on. Everything is fine in the public service, salaries are good and people are happy, but what really counts is to ensure that we have quality public servants and a solid process to advance officials so that once those officials reach the top we have quality senior officials in the public service.
I do not see any guarantees of that in the bill at all. We have fewer guarantees than we did in 1940! In 1966, I was a federal public servant. I think what we did wrong was failing to adapt our management of the public service to the unionization of the public service. We dealt with pay problems — more or less, anyway, because even today the federal classification system is completely absurd. It is outrageous. Many people should have lost their jobs, but oddly enough the commission never fired anyone. It is an outrage.
There are no guarantees in this bill. What struck me a couple of days ago is that no one — at least no one other than people who have been studying the issue for years — is outraged that the merit principle is not defined. We see no mention of competitions to enter the public service, and no mention of competitions among officials to advance within the public service. In other words, the core simply is not there. We have 300 pages of procedure, but the genuine competition process, public examinations with juries and results, are simply not mentioned. We imagine that these processes will just happen by themselves. Officials are good and competent, and we can rely on them. I have a great deal of respect for the public service — I have been involved in it all my life — but human nature is what it is, and ever since the delegation of authorities in 1993, the effect of the current system has been that 80% of officials are recruited any old way. That is how it works. They are recruited as temporary employees, and eventually become permanent employees.
This is not how we built up the quality public service we have at the Department of Foreign Affairs and at the Department of Finance. As a member of the Standing Committee on National Finance and the Committee on Foreign Affairs, I have dealt primarily with people from Foreign Affairs and Finance. Those are the officials I know best. This is not how those departments have become what they are.
Except, I suppose, some would say that the goal is to make everyone happy. Everyone is happy, so everything is all right.
As a representative of the public and with my experience, I know that this process is lacking something quite fundamental. You yourself discreetly alluded to that. I wanted to make that comment as my work in the Senate is drawing to an end.
The Chairman: Senator Bolduc is retiring in four days.
[English]
This is his final meeting and so I have given him permission to leave a half-hour early to catch a plane back to Quebec. However, I do not want him to do that before we have had an opportunity to acknowledge his tremendous contribution to this committee since his arrival in the Senate — was it 15 years ago, senator?
Senator Bolduc: Already.
The Chairman: He was chair of this committee for a few years and he has been a member. He has brought his vast experience in public administration, here and elsewhere, and his knowledge of the country. It is with a great deal of admiration, respect and affection that we acknowledge all that — and not to silence him for the next hour.
Senator Bolduc, if you want to make another intervention, please do so.
[Translation]
However, if she wishes, the Auditor General may comment on your remarks, senator.
Ms. Fraser: I would like to say that we will miss Senator Bolduc. His questions were always very relevant and deeply appreciated. For us, it was almost like sitting an exam — we knew that he was more familiar with the subject than we were. He understood how we work. We thank him for the interest he has demonstrated in our work.
The merit issue is a sensitive one. With the current system, it can take up to 18 months to hire someone. I do not think that the current process makes it possible for us to get the best people. The system does not work. All the jurisprudence has made the process very cumbersome. The Public Service Commission will therefore have to ensure that the process is properly applied. And the commission will still have the power to remove a delegation of authority if necessary. This is something that everyone must clearly understand.
[English]
The Chairman: I would like to ask, Auditor General, about the creation of this new agent, the proposed Public Service Staffing Tribunal. There has been some criticism of that decision here. I have before me the testimony of one of our witnesses last night, Professor Franks, who, while acknowledging that the structures proposed in this act go a long way to improve the situation, said the act also creates a new agent of Parliament, the proposed Public Service Staffing Tribunal. He said he does not see the need for two agents of Parliament in the field of human resources management.
A little later he stated: Organizational overkill is not an attractive solution.
He and Professor Hodgetts were even more scathing during the question-and-answer period about all this. They suggested this was being done because the government did not want to take on the Public Service Commission, to abolish it, which might have been their first preference, or to reform it seriously. So as Professor Hodgetts said, ``We are better at addition than subtraction.'' So we have created this new agency.
If that is the case, that is bad news for Parliament because this proposed act, to some extent, is trying to tighten the relationship between the Public Service Commission and Parliament. If, as Professor Hodgetts suggested, we are now dealing with a ``curiously truncated'' Public Service Commission, then perhaps we had better look again.
Do we need this proposed Public Service Staffing Tribunal? Is its creation undermining the role of the Public Service Commission and, in particular, its relation to Parliament?
Ms. Fraser: We have not particularly looked at labour relations so I do not feel qualified to talk about the role of the new tribunal. My understanding is that it is not an officer of Parliament in the sense of, for instance, the Auditor General. It is an agency that is being established.
We have recommended that roles and responsibilities be clarified, including the role and the responsibility of the Public Service Commission. We believe that the role defined here is, if you will, very similar to the role of the Auditor General in an audit-and-control sort of role. To do that effectively, one should not also be involved in the day-to-day operations, if you will. There is an importance in separating those two functions.
Obviously, we were recommending that things be streamlined. One could question if adding another agency is streamlining, but that gets us into the area of labour relations. I am sure there are others better qualified than I to speak to the necessity of another tribunal.
Senator Comeau: Would the Auditor General tell me where she got the 18-month figure? Was that a number that you yourself crunched or did that come from Treasury Board?
Ms. Fraser: That was in one of our audits, I believe in 1999.
Senator Comeau: Is that an extreme or an average?
Ms. Fraser: It might have been the upper end but it was certainly not a rare circumstance.
Senator Comeau: Would it be possible for you to go back and report to us the average rather than the extreme? I find that number rather on the high side; I should like to know where the numbers fall.
Ms. Fraser: I would be glad to do that. I think in that audit report we talked about the process and we will find some data for you.
Senator Mahovlich: I wanted to know if the Auditor General had the authority to present Senator Bolduc with the Award of Merit?
The Chairman: If she did, she would.
Thank you, Auditor General, once again.
We will now hear from Mr. Ercel Baker. Mr. Baker has been deputy secretary to the cabinet, that is, in the machinery of government and senior personnel in PCO. For 11 years, he was executive director of the Public Service Commission, with particular responsibility for the recruitment, development and counselling of executives in the federal public service.
He was also a member of the Fryer advisory committee on labour-management relations in the federal public service. Some of the recommendations of the Fryer advisory committee have found their way into this bill, although not all of those recommendations.
Mr. Baker, please proceed.
Mr. Ercel Baker, As an Individual: Honourable senators, I believe that Bill C-25 is a very important piece of legislation. As the chairman has said, I was with Canada's federal public service for a long time, just something over 36 years actually. It is somewhat unusual, but I actually entered the public service as a Clerk-1, a position that subsequently became CR-1. I served at almost all levels of what is called the administrative support category, the administrative category and the executive category.
I spent 11 of those years with the Public Service Commission, where I was responsible for various aspects of the staffing system, and toward the end of my time there I was responsible for the staffing system. I also want to mention that I spent a number of years as a staff relations officer, a number of years as a classification officer and, in the 36-odd years, many years as a manager in various parts of the public service.
I mention all of this because I think it is important to know that, when you listen to what I am saying and in our discussion, my views and my perceptions are based on a lot of different experiences over a long period of time. I am truly one of the old-timers, as they say.
Some of you may be aware that I have been involved, since the late 1980s, in the modernization of China's civil service. Canada's public service has served me well as a model of what a professional public service should be. I think it is truly one of Canada's most important assets, and I believe that this bill is an important aspect of the evolution of this asset. It is important in a number of ways. I want to mention two or three of them.
First, this is the first comprehensive overhaul in many years of how we manage the public service. However, I am not one of those that subscribe to the view that all of the previous attempts were failures. I think each of them contributed in various ways to bringing us to the point where we can look at a piece of legislation like this, and I think that is important.
Second, I think it is an important bill. Although I left the public service almost nine years ago, I still talk to an awful lot of public servants. It is clear to me that it is really time to move from talking about the importance of human resource management to actually doing something about it. I think the bill is an important step in this process of giving public servants and public service managers the appropriate machinery and the tools to ensure that our federal public service continues its long tradition of excellence.
Finally, I think it is an important piece of legislation because, frankly, if legislation is not passed now, I do not think we will have another opportunity for probably quite a long time. To many public servants, this is really a test of government's will to make the changes that are necessary. I feel it is important that Parliament not fail them at this point.
Personally, I believe the legislative proposals are fundamentally sound. I can argue about some of the details, but my view is that the legislation deserves a chance. It is based on extensive consultation. It is the result of a thoughtful and a comprehensive process.
Before we get into the questions, though, I want to state clearly my views on one of the more controversial aspects of the bill. I am referring to the changes proposed in the area of staffing. Specifically, I am referring to the so-called change in the definition of merit, from ``best qualified'' to ``individual merit.'' I say ``so-called'' because rather than definitions we are really talking about a change in approach from comparative assessments towards individual assessments — or, to put it another way, appointments as a result of competition versus appointments without competition.
I should say that I have read the transcripts of many of your witnesses, so I will try to put this in a very blunt kind of way when I talk about my views. I must admit that I had strong reservations in the early days of the discussions leading up to the legislation. My reservations have in large part been dispelled in the document that you now have before you, following the process in the House. I want to explain a little bit why I feel that way.
First, it is the requirement to use competitions that is removed by the legislation, not the capacity to do so. I think that is important to keep in mind. The cynical view is that, once the requirement is removed, there will be a wholesale rush on the part of managers to appointments without competition and by extension, to put it plainly, the appointment of friends, relatives, and generally whomever one knows. Obviously, there is a risk that the balance of appointments will shift from competitive to individual, but I would like us to keep in mind that this does not, by definition, mean that it will result in inappropriate appointments. In my experience, the vast majority of managers have as their first interest the appointment of the best-qualified person they can find. What is important, I believe, is that there be a system of, what someone recently described to me, robust oversight. I like that term. When I say ``oversight,'' I mean policies, guidance. Managers will not be left totally on their own; a strong — robust, if you will — audit is in place to ensure accountability.
My view of these risks is quite simple. I think we can either trust our managers to do the right thing or we can remain bogged down in a staffing system that is perceived as not working. I say ``perceived'' because I happen to be one who does not believe the system is quite as bad as it is perceived to be. However, as we all know, perception becomes reality, and so it no longer really matters that much whether it really is terrible or whether it is just perceived to be. It certainly is perceived to be and so I think we must move on.
I do not believe in blind trust, but I do believe in the principle that people should have the opportunity to demonstrate that they are capable of using tools such as we are talking about appropriately. Occasionally, there will be failures. However, in the case of this legislation, I personally am satisfied that the checks and balances that have been built into the legislation to ensure accountability make the risk of occasional failures acceptable.
The flexibility introduced by this legislation has great potential. It can be used appropriately. If it is, it will result in significant benefits in areas such as representativeness, diversity and competence, or it can be abused, which will result in the introduction of widespread bureaucratic patronage.
I believe it is important that we recognize these risks. We need to know that it can go either way, but I truly believe we must take the high road and start with the principle of trust and accountability.
I would like to open it to questions, if I may.
Senator Bolduc: I enjoyed your presentation. There is a lot of experience in it, no doubt. I said what I had to say, I guess, about that legislation. We have been talking about that for the last two days. We also had some meetings in June. For now, I will leave it to other senators.
However, I understand that you have chosen to be on the optimistic side.
Mr. Baker: Yes.
Senator Bolduc: In the long run, will it go pretty well, in your opinion?
Mr. Baker: I believe so. I believe it needs to be carefully monitored, but I am an inherent believer in human nature wanting to do the right thing.
[Translation]
Senator Bolduc: Apart from what I said earlier — and I will take nothing back — this bill does have a number of positive aspects. There is no doubt decentralization is necessary. We have to give managers a chance to do their work. However, their drive for efficiency might be at the expense of equal opportunity for citizens and for existing officials. So it is fairness, or equity, which is my primary concern.
In a democratic society like ours, we must have equity, or equal opportunity. I was an administrator for a number of years, and I am therefore well aware of managers' concern for efficiency. That concern will no doubt result in an effort to ensure that equity goals are met, because managers must have the staff they need to operate properly.
There is an issue of equal opportunity, both for Canadians wishing to enter the public service and for existing officials and their advancement. I am deeply concerned about this issue. Advancement is less critical when it comes to specialized officials within departments. We can assume that it is in the best interest of senior officials to have qualified personnel around them.
To ensure that work is well done a manager needs competent personnel, but equal opportunity nonetheless remains important. We have to give everyone a chance, since we are in a public service, and are using taxpayer dollars. People must have the opportunity to apply for positions, because their skills form the foundation of the high-calibre system we have.
The competition system in the advancement regime, particularly in various departments, protects the public in a way. Competition protects consumers. And in the same way, within the public service, competition protects Canadians by maintaining the calibre of officials.
[English]
The Chairman: What is so much more robust about the oversight provided for in this bill that would ensure the equality of opportunity that Senator Bolduc is talking about?
Mr. Baker: I do not think it is the bill that ensures it. I am watching with some interest to see how robust that oversight will be. My comments relate more to the fact that that is absolutely essential. When I read the transcripts of the president of the Public Service Commission, he talked about the resource issue. That is absolutely essential.
The Chairman: It is somewhat — to borrow a phrase from Senator Ringuette a few moments ago — a leap of faith if one accepts that the government will give him the auditors and the other resources he needs in order to do the robust oversight that may rankle them from time to time.
[Translation]
Senator Gauthier: Mr. Baker, in your presentation you said that at one point you were involved in classifying positions within the public service. This is a sensitive point among unions these days. Bill C-25 does not touch on classification. At present, the issue is not negotiable. In your experience, would classifying positions through negotiation with unions be possible today? If so, how would the parameters of the study be defined?
Classification standards will no doubt be determined by the employer. Making those standards negotiable does not pose a problem. However, I do not believe that today unions would be in a position to negotiate. They have neither the staff, knowledge, nor the experience to negotiate classification standards with Treasury Board. Treasury Board has the resources, and over 50 years' experience. You were involved in this, so please correct me if I am wrong.
[English]
Mr. Baker: I am one of those who believe that classification should not be bargained. Classification is, from my perspective, a fundamental management right. It is the basis on which many other aspects of human resource management are pinned. It is the establishment of the value of a set of duties, and the right of management to allocate duties and to assess the value of those duties is something that we should not move away from.
I do not have a problem with — and I am not sure of the right term; sometimes it is referred to as co-development. If what we are talking about is management and union working together to ensure that when you develop standards these standards accurately reflect the realities of the workplace, I personally think that is a good thing, but not bargaining.
Senator Gauthier: He answered my question. He is not in favour of bargaining. Thank you.
Senator Kinsella: Mr. Baker, I should like to draw on your experience as well. If we are to accept the model that is proposed in Bill C-25, would you agree that we should expand the mandate of the new Public Service Commission and its function to give it the authority to conduct audits and investigations on the non-core agencies either on its own initiative or upon the request of a parliamentary committee; in other words, to give it jurisdiction in this act?
If we are to buy into the argument that this is an excellent model for a modern public service, for the core public service, then certainly mutatis mutandi it applies, it should be applicable to the non-core areas.
Mr. Baker: Again, my personal view is that it should be, pragmatically. However, the resource implications are tremendous. In principle, I would agree.
I liked your point about on the request of Parliament, for example. That could be feasible.
Senator Kinsella: It certainly would help with the resource part of it.
Mr. Baker: That is right, but as a matter of course, on an ongoing basis, I would not be optimistic that the resource issue could be solved.
Senator Kinsella: This is where I think it is important for us to break a certain paradigm that operates in this town, and we are the ones who can break it. That is to say, if we are buying into this new model, where auditing oversight is critical, then it is critical for the core areas of the public service and it is critical, that same oversight, and maybe more so, for those arm's length public service entities. Also, it would be incumbent upon Parliament to make sure that the appropriation is appropriately voted so that the new commission can carry out that function.
If there is no problem in terms of resources, are you a warm supporter of this proposition or an enthusiastic one?
Mr. Baker: Somewhere in between, probably, simply because I guess my basic premise is that it requires a high level of expertise.
It is easier to develop the expertise in one place rather than several. That is part of the reason I would be a supporter.
[Translation]
Senator Chaput: Mr. Baker, in your presentation, you talked about the positive aspect, things that would be good for public service employees. You said that you had confidence the process would work. I would like you to tell me what aspect of this bill would be good for Canadians as a whole. I would like to know how things will improve over what we had before.
[English]
Mr. Baker: This will sound like a little bit of a cop-out, although I do not mean it that way at all. This bill provides a framework within which we can build, I believe, an effective human resource management system. When I read the bill, I was looking for that as well. It is nine years since I left government, so I am very much a member of the public, and there are a number of things that I actually like, if we can make it work.
One is in the area of representativeness. I love Canada very much. Canada is an incredible country. Part of what makes it an incredible country is the two cultures that form its basis and the diversity that has developed over the years through immigration. We must have a public service that reflects that. When I was in government, I used to refer to it as ``reflects the Canadian mosaic,'' and I still think of it that way. This bill provides the framework that gives us the flexibility to address some of those issues.
Some of the detractors of the bill believe that it will be used the other way. Over the period of time that I worked in the public service, I saw more very dedicated and highly motivated public servants than I saw of those who would grasp the opportunity to do something different. That is why I believe it will work.
The Chairman: Mr. Baker, I assume you were at the commission as executive director before you went to PCO as deputy secretary. What were the years?
Mr. Baker: I was at the commission from 1979 to 1991, and then I spent a couple of years as the CEO of Consulting and Audit Canada. I then went to Fisheries and Oceans, where I was the ADM Operations, and then to PCO.
The Chairman: On the basis of your experience with the commission, which is not that long ago, do you think it was necessary to take those functions away from the commission and create this new proposed public service staffing tribunal?
Mr. Baker: I am uncertain as to why we need a separate one. I was very interested in your reading from Mr. Hodgett's comments of last night. In principle, it is always better if you do not have to create more machinery, so I guess I would have looked for ways to leave that with the Public Service Commission.
The Chairman: The question that concerns me, having looked at it after hearing from some of these witnesses, is that if these functions that we will take away from the Public Service Commission and lodge with this new tribunal are important, then I think we have a problem because, on one hand, we are tightening up the relationship between the commission and Parliament but, on the other hand, we are taking these important functions away and putting them with a new tribunal that has been described as an agent of Parliament, although it is not really. I think it may report, but that is about it.
Are we undermining Parliament's creature, the creature that we depend on to ensure that the merit system is respected?
Mr. Baker: The principle involved is that you should not have a review done by the organization that has the authority. I agree with the principle, but, as I said, I think I would have looked for ways to ensure that that would not be an issue. However, there will always be those who argue that you cannot fix that problem without having them separate.
I do not think are you undermining the Public Service Commission in doing it. Some will argue that it would not matter because the commission will delegate most of what it does. Well, it will, but it is still responsible and accountable, and it will, I believe, continue to do some staffing at the very senior level.
The Chairman: It is not that I want to second-guess the decision. I understand the principle that you are articulating here. What occurs to me now is whether we should not consider ways of making the proposed public service staffing tribunal more authentically Parliament's creature by providing for Parliament, for example, to appoint at least the chair if not the members of the tribunal and make sure that they are Parliament's creature in every sense that the commission will be, or the Auditor General or the Commissioner of Official Languages is. Would that be important?
Mr. Baker: I think so. To be candid, when I read that part of the bill I was assuming that it was a parliamentary agency. I would have to go back and look at it.
The Chairman: I do not know in what respect it can be considered a parliamentary agency. I could look in the bill right now. It is probably required to report to Parliament, but the appointments are made by Governor in Council, et cetera.
Senator Kinsella: I wonder whether Mr. Baker has a view as to the workability of having one full-time public service commissioner and at least two part-timers. If we are serious about modernization, transparency, efficiency and effectiveness, why would we make this part time?
Mr. Baker: I am not sure. I could not find a good reason for moving to part time. During the time I was at the commission, there was lots of work for three. I was a manager at the commission and, frankly, I would have liked to have had one boss instead of the perception of three bosses, but it really was never much of a problem. I am not sure why this goes that way, but I personally would advocate full time.
The Chairman: On the part-timers, it is significant, I think, that there is to be a full-time chairman or president and an unstated and therefore unlimited number of part-timers. To begin with, the fact that they are part time, by definition they have full-time jobs somewhere else, and I think there is a real possibility of conflict of interest.
Second, human nature and politics being what they are, you are opening the door, at worst, to partisan political appointments and, at best, to representations from every interest group in the country that believes it has a right to have a commissioner. We would thus end up with a tower of commissioners, which would present a serious problem. I think they should return to two full-time commissioners and have done with it.
Mr. Baker: There is no question that having three commissioners made my life as a manager quite difficult at times. However, I still believed in the principle of three commissioners.
Senator Comeau: I want to be sure I understand what you are supporting. My understanding is that the managers would have, according to this bill, the authority to either call a competition or to not call a competition, depending on how they feel in a given circumstance. They would have the authority to set the qualifications either in favour of or not in favour of the candidate they wish to interview.
The commission would have the authority to audit but not to take corrective action, if required, because the deputy head of the department would take corrective action. Do I understand the proposed process correctly?
Mr. Baker: Yes, but I guess the part I would have a difficulty with, having decided whether it would be competitive or non-competitive, is the setting of the qualifications to suit the candidate I was hoping to recruit.
Senator Comeau: That might not happen because, as you said, they are all fine individuals; we trust them and we have confidence in them. Obviously, it would not happen.
Mr. Baker: I would not go that far but I think that is the importance of the staffing tribunal. That is exactly the kind of complaint that I would expect to come forward.
Senator Comeau: The staffing tribunal will be made up of six auditors, one full-time commissioner and a couple of part-timers. The chairman alluded to the possibility that they would have a busy time over the next number of years, in consideration of the volume we would be dealing with.
Mr. Baker: Perhaps, yes, they may. I am hopeful that it would not be that bad but I take your point.
I want to point out that that is a significant difference from the old appeals branch the Public Service Commission had. Under that system, when someone appealed, the process was examined. They never really delved into the important issues such as whether unfairness or bureaucratic patronage were involved.
Senator Comeau: I cannot understand how one would be able to prove it. If the manager were to have the authority to set the qualifications, which we agree is in Bill C-25, then he or she would ensure that the qualifications were set in such a way that they would not be questioned. The manager would have the authority to decide if a competition were to be held. The only recourse for the commission would be to audit the process. If the commission were to find that the qualifications were elaborated and that it was a non-competition, it could not fault the manager for not holding a competition because that option would be provided in the bill. Perhaps it works that way in private industry, but we are not currently discussing the business community. This is an entirely different ball game. We are dealing now with an almost-one-party state and so we want to be careful about how we set up our new staffing regimes so that we do not create a system of bureaucratic patronage. I mentioned this morning, to other witnesses, that it would not take long for the members of Parliament to cozy up to the managers to try to work out a kind of deal. The incentive to do that exists in Bill C-25.
Again, coming back to the matter of the commission, it would not have the resources and the resources would have been reduced. Thus, we would have a recipe for some major problems down the road. I tell you: This could be very dangerous.
Mr. Baker: I think it will be a pretty active and exciting time.
Senator Comeau: It will be robust, yes, but the old Chinese curse ``May you live in interesting times'' does not necessarily mean that it will be good.
Mr. Baker: No. The test will be after those interesting times and whether it shakes out the right way or the wrong way.
Senator Comeau: I have one last point. My initial training at university was in accounting. There was one thing pounded into our heads at all times: Do not place managers, line people or staff people in a position where they could be tempted; rather, put the controls in before the fact and do not depend on their trust and their integrity. Don't tempt them. This bill is entirely contrary to that training. The bill would afford many opportunities to tempt members of Parliament, ministers, and ministers' staff and managers in the public service. That would occur under this proposed legislation.
Mr. Baker: I am attracted to what you are saying. I began in government in the Comptroller of the Treasury, where we pre-audited everything. The system worked but we managed to bring many operations almost to a complete halt. Yet, I sometimes still yearn for the good old days. We are in much the same situation in staffing because the system went a long way to prevent anyone from making a mistake. Gradually, I have come around to believe that perhaps we have to get more into the principle of allowing the freedom to fail.
Senator Comeau: It is the giant leap of faith.
Mr. Baker: Yes, it is a leap of faith.
Senator Ringuette: I have many concerns, but the greatest is the fact that I do not read, in Bill C-25, any opening for anyone in Canada that has the competency to apply. In your remarks and interpretation of what you believe will be the devolution, once Bill C-25 is applied, it would seem that the delegation of staffing would go to the managers. Currently, the samples of 12 departments have shown that 54 per cent of jobs are awarded in a non-competitive situation, never mind the geographic restriction. Individuals within the system decide that they need a specific person for a job and that is it.
My fear is increased because you are saying that the process under Bill C-25 would remove the responsibility and the activity of staffing from the commission and delegate it to the managers. Therefore, in five years from now, instead of seeing 54 per cent of jobs being filled without any kind of competition, never mind restricted competition, we might be looking at 84 per cent.
I have a big concern because it is fundamental to me that the public service located in Ottawa, more specifically, are the ones who have the most information, are the ones who suggest policies and programs based on the information — and there is a major, major lack of knowledge and understanding of the regions of this country. What you are saying to us is, yes, take a leap of faith, but there are more dangers than meet the eye in this bill. Am I correct?
Mr. Baker: There are two things here, and I would like to address each of them.
One is what we used to call areas of competition. The Public Service Commission — not just the commission but Treasury Board as well — in very recent years, I think, has bought into the concept that you are talking about in terms of people across the country should be able to apply and work in their federal public service. Again, there are significant cost considerations to doing that. I understand that the way it is being approached is sort of from the top down, so you make the more senior positions open to everyone first and you look for ways to move that down. However, I agree with you totally that that is absolutely essential, and I think that is coming.
The one that worries me more, frankly, is the second one, which is the current preoccupation with appointments without competition. I go a step further than that. It is not only appointments without competition; it is a practice that has grown up to hire short-term, with those individuals then becoming indeterminate. The Auditor General made the comment, which I totally agree with, that that has to be fixed. This is not the way to build a career — not even a career, a professional public service.
I have one thought on that. In my experience, what you have now is a system that has been an incentive for managers to look for ways to get around it, simply because it took so long. What I have observed over the years is that if you have a system where an individual has the authority to do something when appropriate in a quick way, when it is not necessary they usually will take more time to do it properly. I am hoping that is what happens, but time will tell. In a few years if, as you put it, we have 90 per cent of our appointments being without competition, then I think that will be a major problem — and it will have to be addressed.
[Translation]
Senator Gauthier: Your career has been spent in the public service. How do you feel about the provisions governing political activity by officials? Should political activity be further curtailed?
[English]
Mr. Baker: I do not think they should be restrained more. I never found that a problem in my time in the public service. I will be personal here.
People point to the period in 1984 when our government changed, where there was a view that there were attempts made to politicize the public service. I actually did not find that, and I was in a position at the Public Service Commission where I would have seen it firsthand. What I found was a lack of understanding of the principles and the values and the ethics and how the whole system worked. I spent a lot of my time discussing that with new members of Parliament and new ministers. Very seldom in my career have I found instances where there were deliberate attempts to politicize or to introduce politically partisan individuals into the system. So, I kind of like where it is at the moment. I would hate to see it come back.
The Chairman: On that note, we will have to conclude. Thank you very much, Mr. Baker, for agreeing to appear and share your experience, knowledge and point of view on these issues with us.
Our next witness, Ms. Hynna, was an assistant deputy minister in several departments of government during 30 years of service in the public service. She also served as a member of the Fryer advisory committee on labour- management relations in the federal public service. She also headed a consultative review of staffing on behalf of the Public Service Commission in 1996.
Welcome, Ms. Hynna. You have an opening statement to make, I believe?
Ms. Martha Hynna, As an Individual: Yes I do, and I think some copies have been made and are being distributed.
Let me first say that I am honoured to be asked to be here, and thank you for this opportunity. I am particularly honoured — to make a personal note — to be here on September 3. September 3 was my father's birthday. He was a member of Parliament for many years and he held Parliament in great respect, so it is a privilege and honour to be able to contribute to the participation and the work of Parliament — especially on this day.
As you mentioned, I too was in the public service — not quite as long as Mr. Baker, but our paths crossed in many ways. I was an assistant deputy minister for quite a period of time, sometimes in line positions and sometimes in corporate and human resource areas. Since retiring, I have been doing a fair amount of consulting; as you said, I was a member of the Fryer advisory committee. I also am the chair of the public service health care plan trust — appointed by the employer, the unions and the federal superannuates association. I have worked closely with the unions and management over the years and have, I hope, some understanding. While I left the public service, like Mr. Baker, about eight years ago now, I have maintained contacts and I think I have some feeling.
I think that I have been asked to appear before you primarily because of my experience heading the consultative review of staffing on behalf of the public service commissioners in 1996. Therefore, I will be addressing my comments to the part of the bill that deals with the Public Service Employment Act.
I want to tell you a little bit about the consultative review of staffing as outlined in our report, ``A New Framework for Staffing or Resourcing,'' and outline some of the conclusions that we drew and compare them to provisions of Bill C-25.
I understand that this was one of the working documents for the work of the task force on modernization of public service, and I saw that the minister made reference to our work in her statement a few weeks ago.
Largely, I think, Bill C-25 — particularly as it has been amended by the House of Commons — is consistent with the results of the consultative review, and I support them.
As I said, in 1996 I was asked to undertake the review of the staffing process. Our objective was to try to reach an agreement on what we called a vision or direction or approach for the type of staffing system the public service of the future would need. With this in mind, we undertook a major consultation. We were not interested in having a small team draft up some ideas and see what we actually got. What we were trying to do was bring together the various players — including deputy ministers, the people from the commission, the employer, unions, HR specialists — and talk to as many people as we could to get some kind of idea of the direction they thought we should go in.
Together, we built a vision of the new approach. It is important to note that we were able to develop a consensus despite the differences in our interests and our positions on many of the issues. The unions, as I said, played a key role in the work that we did.
The conclusions of the review were, first, that it is clear that neither managers nor employees were satisfied with the current situation. Nothing I have heard suggests that that has changed. Managers found it frustrating and time consuming. They also found that it focused on whether a decision could be successfully appealed and not on whether they were getting the best person for the job. Employees did not trust the system to deliver a fair result.
At the consultative review, we came to the conclusion that there were four areas for change that were essential to establishing the kind of staffing system necessary for the future.
First, the system should be based on values rather than rules and processes. The values to which we referred were things such as merit, political impartiality, fairness, being representative, transparency, diversity, competency and integrity. We said that these values should be established by legislation. We said that a system based on values would require the secure knowledge that decision makers understood and accepted these values and that they would be held accountable when they failed to act in accordance with them.
We also said that the system should not try to transfer those values into specific rules and processes that would be applied across the public service. To do so would shift the focus of decision makers toward the process and away from the values.
Rules, by definition, are rigid. Therefore, they would hamper the ability of decision makers to judge how to balance competing values and make the best decision for all concerned. We all understand that any time that we are making a decision we are usually balancing competing values. It is not a black and white situation. We must balance the issue of efficiency, for example, with equality and equity of access to jobs. That kind of balancing must always take place.
Bill C-25 is largely consistent with this conclusion. The preamble sets out the values in its various paragraphs. It then provides for the commission to establish policies respecting the manner of making and revoking appointments and taking corrective action in section 29(3).
We talk about managers being able to do what they want. They will not be able to do what they want. They will be able to do what they can within a system of guidelines or policies that the commission sets out. Within that, I would hope that the public service-wide policies would be broad and reflect or clarify the values without getting into details on how the process would be applied. Within departments, I would hope that deputy ministers, under their delegated authority, would establish policies and practices to be followed in their departments. There must be room for these to vary by situation, region and occupation.
The second area for change was in regards to accountability. The conclusion of the consultative review was that deputy ministers and, through them, managers should be held directly responsible and accountable for internal staffing — not for initial recruitment — within the framework of values as discussed above. The Public Service Commission would have responsibility for the stewardship of the values framework and the oversight of the system.
We believed that under the current system, it is too easy for managers to think that the Public Service Commission or the HR specialists are responsible for what happens in staffing. We felt that giving deputies and managers more ownership of the process would create a greater sense of responsibility for their actions. We also suggested that the Public Service Commission retain direct accountability for initial appointments to the public service.
Bill C-25 does not change things as much as we thought it would. The Public Service Commission retains direct authority for all staffing, with authority to delegate nearly all authorities to deputies. At the same time, the preamble specifically refers to the concept that delegation of authority should be to as low a level as possible and should afford managers the flexibility to staff and to manage and lead their personnel to achieve results for Canadians.
The deputies also have a greater role to play in the redress system under the current regime, which I think is important. Under the redress system, before an appeal would go to the new tribunal, deputies would be expected to deal with it. When you deal with complaints and appeals, you learn what managers are doing incorrectly. Deputies are accountable to the Public Service Commission. They would be in a better position to fix things before they get out of hand, which is why it is important that they have a first step role in these areas.
While the provisions do not go as far as envisaged by the review, they are a vast improvement over the current situation. However, it will be important for the employer and the Public Service Commission to constantly reinforce and emphasize the accountability that deputies have in this area.
The third area for change with which we dealt was co-developed processes. We recommended the co-development of processes for the policies and practices with the legally constituted representatives of the employees, the bargaining agents. We believed that the reason for the lack of trust by employees in the existing system lies in the fact that it is perceived as a system designed exclusively by managers for managers.
Employees and their representatives wanted a system that generated more cooperation and less confrontation, both in its daily use and in any efforts to improve it, when necessary. In order to achieve this, they wanted to participate in the development of the system, both at the government-wide level, where the broad framework is set out, and at the departmental level, where more specific practices and processes are put in place.
This does not mean participating in the decision of who gets the job. It means participating in the development of the particular process or practices that will apply.
My understanding of this bill is that those important values are set out in the bill. The Public Service Commission is then given authority to set out general policies with respect to how those values are put in place. Then, the deputies are delegated authority to put in practice policies and practices that are specific, relevant and appropriate for their particular situation.
You need different kinds of processes when you are staffing some kinds of jobs than you do for other kinds of jobs. Certainly, there can be variety that remains consistent with an overall set of principles and values.
The bill is proposing that. The bill does not say that once managers you have it managers can do anything that they want. It says that managers must act within a framework.
Also, the bill does not make a point on co-development. However, unions now, given the amendment in the House of Commons, must be consulted in terms of the content of the framework that the Public Service Commission would set. There are safeguards in that area, as well.
Bill C-25 does not go quite as far as we would like. Consultation is not quite the same thing as co-development, but there is now a requirement for the unions to be consulted respecting the manner of making and revoking appointments. We certainly hope that any delegation to deputies would also require them to conduct that consultation.
The fourth area that the consultative process saw as important to change is that of recourse/corrective action. Recourse is hand in hand with accountability. We think that the provisions do provide for a better system for individuals to bring attention and to challenge situations where they think they have been abused.
We believe that this should work within a fairly short time frame. We thought that departments should be responsible for responding to complaints in the first instance. These elements are included in Bill C-25.
I also wanted to talk about the merit principle. The consultative review noted that given the strong concern of employees with managerial favouritism where more than one employee is qualified for an appointment a fair process requires that some transparent standard be applied for deciding which among those employees will in fact be appointed. However, the decision need not hinge on the most meritorious. In other words, once it has been determined which candidates have the necessary knowledge and abilities, other criteria could be considered in determining which of the qualified candidates is actually appointed. The provisions of the bill are consistent with this conclusion.
Speaking personally on the issue, I think the merit principle as it is presently understood — that is, that we always appoint the most qualified person — is largely unworkable and the belief that it now happens is largely unfounded. As you say, we tend to go around the processes in order to get someone and deal with it quickly.
Often when we do have a competitive process, the person who gets the job is the person who does best in an interview. A lot of emphasis is put on the interview, and that is because that is the best way to defend if there is an appeal. You can have an interview and a series of questions and a marking scheme, and you can defend the marking scheme. All of this can be quite artificial. The interview can often be quite subjective. I think the result of this is that too often what you end up with is not the best person for the job but the best person at doing an interview. Sometimes the result is that you do not get someone who is the best person for the job because they did not do a good interview, or, even worse, you get someone who is not the best person for the job but they are the best person at doing the interview. As managers, we learn that we have to be careful in that respect, and I am sure every manager has hired someone who did a good job in the interview and did not turn out to be very good. The current system is not working at giving us the most qualified person. I think that is why we need to have the kind of system being proposed.
In summary, this reflects the conclusions of the consultative review of staffing. It should be remembered that those conclusions in turn reflected the ideas of a cross-section of stakeholders in the system. The flaws that appeared in the original bill, from my point of view, have been corrected largely by the House of Commons. I believe this bill, if passed, will enable government departments, working together with the bargaining agents, to put in place a fair and transparent staffing system that will ensure that Canada continues to reflect the values set out in the preamble.
The Chairman: Thank you, Ms. Hynna.
Senator Beaudoin: I should like to turn to the question of the merit principle. I am a little bit surprised. It is true that the person who does the best at the interview may not necessarily the best candidate, but it can happen. A person might have an excellent record but may not do well at the interview. If the person only interviews well, it will show, and you will not select that person.
Ms. Hynna: Yes, of course you are right. In many cases, you would not. In many cases, you would go beyond, and as you get to the executive level where there is less ability to appeal the interview becomes only one aspect. If you are doing a good staffing action, you would be looking at the record, you would be looking at references, and you would be meeting the person and talking to the person. You would be taking all of those things into consideration.
What happens under the current situation too often, particularly at the levels below executive where appeals are much more common, is that it is easier to defend your decision if your decision is based on the result of an interview and you have had a marking schedule and you put marks all over. If there is a challenge to that, you can show these were the answers they gave and this person got better marks on this, and therefore this is the person who gets the job. It is harder to defend something that you base on particularly references, which are often, in a sense, the most useful way of determining whether someone is good at doing a job.
The current system sets out very specific rules, and there has been jurisprudence that tells you the basis upon which can you look at whether or not the competition was carried out properly, and it pushes you into putting more emphasis on the interview than I think is appropriate.
The other thing is that it is taking so long. We are having so many non-competitive competitions because it is just such an awkward, difficult, long process that managers tend to try to avoid it. If you had a situation in which they participated in establishing the way you wanted to carry out your processes, I think they would be more ready to do it. The point has been made that managers as a whole have to work with the people they hire or the people they do not hire. Therefore, if you want to have a good working relationship with your employees, you have to manage in a fair, transparent and consistent manner. There are all kinds of reasons why managers will work in a fair, open, transparent way, as long as the incentives are not too strong the other way to avoid that, because it will present even greater problems. Once again, managers, like everyone else, are balancing things at all times.
Senator Beaudoin: We have an expression in French, ``beau parleur, petit faiseur.'' I do not know if you have the equivalent in English.
The Chairman: Do not ask.
Senator Beaudoin: If it is only words, you detect that.
Ms. Hynna: You get better at it, yes.
Senator Beaudoin: For example, in the academic field, we judge someone by the judgment of his peers. That is probably the best system. In other words, if everyone in the same field arrives at the conclusion that that person is really the best, I think that is very strong. I come back to the thesis of Senator Bolduc. I think we should select the best person. There is no other rule, in my opinion. If there is only one candidate, it can be more difficult, but if there is a strong competition, the chances are the judgment at the end of the day will be a good one. The competition is certainly the thing to do and to have. I am not too afraid of beau parleur, petit faiseur, because we detect that after a while, even in the interview, if you have a very good question. However, the fact is that there are not many ways to find the best person. It is the judgment of those who are equal to that person.
Ms. Hynna: I agree with you that competitions are the best way in most circumstances, and I would certainly hope, with the system in place, that competition will continue to be used in most circumstances, and the widest competition that is possible within the efficiency and depending on what you are looking for and all these kinds of issues. I would hope that would be the case, and I would hope that the guidelines and framework policies established would reinforce the idea that this is the usual kind of thing, depending on the circumstances.
On the other hand, what also happens now, which can also be very frustrating to individuals, is that we all agree, even we as a peer, that this is the person who is best for the job, but because of the system, we are required to go through a long process that has a competition, and we enter into these competitions only to discover that there is someone who obviously has more direct and more specific experience. That competitive process can, on occasion, be unnecessary and frustrating for other people competing. You need to have some policies and values that say, ``Look, it has to be fair and transparent.'' If you never have a competition, it is not fair.
Senator Cordy: Thank you for bringing your expertise to the committee. Along the same lines as Senator Beaudoin, I am looking at staffing selection that should be value-based. That certainly allows for more flexibility. Certainly some people are better at interviewing than others. Sometimes managers have to look at more than whether someone scores a 9.5 or a 9.2. Yet the feeling may be that the person with 9.2 is more of a team player, so we have to allow for flexibility.
Having said that, you also commented that the system should not try to transfer values into specific rules and processes. How difficult will it be to change the mindset of employers and employees in that regard?
Certainly it would be much easier for a manager to defend his or her decision if they could say, ``Well, so-and-so scored a 10 out of 10,'' rather than saying, ``I feel in my heart that this person would be the best employee to have.''
We have had discussions over the past few days about bureaucratic patronage and feelings on behalf of the interviewee that the interview has not been set up before the person actually arrived. It may feel like the decision was made even before they arrived for their interview. How difficult will it be, if Bill C-25 passes, to change the mindset of those who are in the public service?
Ms. Hynna: I think it will take a lot of training. I remember when the bill was first introduced in the House of Commons; I was listening to the minister talk about the importance of training and development. If and when the bill passed, the minister said it would not be implemented immediately because a lot of work needed to be done.
I did say that the values should not be translated into processes. I meant permanent processes as set out in something. Obviously, every time I have a competition, I must have a process and that process should be established ahead of time. However, it should not be something that is always done just this way. The processes should be established by working together. You may want to review them every two years. You may have processes that will be used within this department for certain situations and other processes used differently. Yes, one must have processes. It is not fair nor transparent if one waits until after the fact to say that that was the process that was followed. That would be an abuse of authority and subject to appeal.
Senator Kinsella: I have learned many things about the public service from Ms. Hynna over the years. I wanted to ask a couple of questions. Ms. Hynna was assistant deputy minister at the Public Service Commission. I point that out because yesterday we discussed with some witnesses whether it is possible to have good communication between members of the Public Service Commission and the deputy minister community. Some seemed to be arguing that somehow one gets tainted if there is too much interaction.
I was arguing the other side of the coin, that indeed the Public Service Commission is able to function more effectively when many of its key leaders are persons with experience in the public service. The public service's line agencies and line departments are enriched by having people in their senior management category who have had experience in the public service.
The suggestion was made by one witness that the president of the new public service under Bill C-25 ought to be some old person who is at the end of his or her career. I just found that a horrific idea. I think the position is far too important not to have the most energetic, dynamic person.
Have you felt tainted in any way by having worked for the Public Service Commission and then gone back to line departments?
Ms. Hynna: No. Surely we learn over the years that, when we are in different positions, we wear different hats and we deal with things in different ways. I agree with you that the experience in departments is very important in central agencies. It helps when you go back from a line department to a central agency to have had that experience. However, you will deal with issues from a different perspective at that time. I do not see any problem there.
Senator Kinsella: You briefed us on the consolidated review of staffing. When you were doing that work, did you look at the staffing experience and processes in the non-core public service? As a matter of fact, did you look at how some of the arm's-length organizations were doing their staffing?
Ms. Hynna: We did not look at any of the Crown corporations. We were doing that at just about the same time that the four agencies — like Parks Canada, Revenue Canada which is no longer called Revenue Canada — all became separate. Some issues came up in that respect, but we did not look to any of the Crown corporations.
Senator Kinsella: Do you think such a study ought to be done, and done soon, on staffing across, to use the terminology, the non-core areas of the public service?
Ms. Hynna: It would probably be a good idea. I agree with Senator Comeau that one of our important values is equity of access to jobs and contracts and other things in the public sector. It is public money and therefore the general public should have equity of access to that. It is an important thing to keep in mind. It is important to keep doing audits. The Crown corporations presumably have the same kinds of requirements as core public service.
Senator Kinsella: Our colleagues Senator Gauthier and Senator Comeau have often reminded us of the importance of the application of the Official Languages Act in all aspects of the Public Service of Canada. That is very important. Senator Beaudoin has underscored the constitutional requirements as well. However, both in terms of constitutional value — and I refer to section 27, Senator Beaudoin — and, in this instance, the Multiculturalism Act, there is a cross- government commitment to the promotion of multiculturalism in the Multiculturalism Act. It has found expression in the work of the Public Service Commission. How does it find expression in the non-core areas?
Ms. Hynna: It is not an easy issue to determine the importance of separate employers. If you are going to have some of the agencies and Crown corporations as separate employers and as separate agencies, to what extent do they need to be covered? Where do you draw the line? How do you ensure that some of values that cross all of them are applied?
I am not sure where the line should be drawn. I think it is not an easy one to do. Is the Public Service Commission the right one to oversee staffing practices in ``separate employers''? Again, there are different ways of doing it. At what point does the mandate get so broad that it cannot be handled particularly well? Perhaps it is more important, as was suggested, to put together people who have certain expertise?
In my experience in government organization over the years, there are different ways of doing things. However you do them, there are certain sets of values and you have to make sure those are addressed. There is no one way that is best. Usually, they are just different. As long as you take into consideration the pros and cons and then deal with the downside of what you choose, that is the important thing to remember.
Senator Kinsella: Would you support an amendment to this proposed act that would amendment particularly the PSCA and provide the PSE with jurisdiction to audit and review practices in the non-core areas?
Ms. Hynna: Audit and review only? I would not want them having authority for that staffing and the delegation as they have with audit and review. I do not know whether this is the best way to do it or whether there are other ways of getting that audit and review. I would have to think about the implications before I answered yes or no. Sorry. I think I would agree that there be some kind of audit and review.
Senator Kinsella: Do you have any views on whistle-blowing?
Ms. Hynna: I do not have any particular views. I suspect it is an issue that goes beyond this and, therefore, I think it is something that must be looked at. I know it is an important issue. I have views that it needs careful thought and that it probably goes beyond the issue of the administration of the public service and the human resource administration. Therefore, whether this is the best bill or a separate bill would be preferable, I do not know. I do not think I am in a position to state that.
Senator Ringuette: When was the review of the staffing process that began in 1996 completed?
Ms. Hynna: We just did what I would call the first stage. It was a six-month exercise. It started in January and was completed in about July of 1996. I have summarized a lot of the conclusions. I can get a copy of that report to the committee through the clerk, if you would like. I do not think they are easily obtained at the Public Service Commission anymore, but I certainly can try or else find a way of getting you a copy of the report.
We consulted with many people to find out the general approach and direction. We left it very general, without trying to get into the details of how to implement this. There was a lot more work to be done; in fact, a lot more work has obviously been done since then but not by the particular group I was involved with.
The Chairman: Why is the report not accessible at the PSC? You are not suggesting they shredded them?
Ms. Hynna: I do not know. They printed a certain number, they were used and people stopped asking for them, so it is not there. Undoubtedly, it is somewhere in the archives. There is a copy in the archives, but it probably is quicker to get it from me or, possibly, from the task force. They probably have a copy as well.
Senator Ringuette: You mentioned that you are now retired and have been doing some consulting work. How long have you been retired?
Ms. Hynna: I retired after doing that exercise in the fall of 1996.
Senator Ringuette: Since your retirement, or, more specifically, in the last two years, have you been hired as a consultant with the Treasury Board?
Ms. Hynna: With the Treasury Board?
Senator Ringuette: Yes, or with PSC or with any institution related to Bill C-25?
Ms. Hynna: Regarding the Public Service Commission, I do coaching for executives and people on the verge of that. More than two years ago, I used to do what they call track record interviews related to the competitions for what was called the pre-qualified pool. They have, and I think they still have, a system where you can be pre-qualified to be considered and promoted to an assistant deputy minister position. They had quite an elaborate — and still do, although I am not involved in it at all — process for determining who would qualify for being in this pre-qualified pool. I had a contract to do some of that work.
I was on the Fryer task force, and my time there was paid for by Treasury Board. I now chair the Public Service Health Care Plan Trust, chosen by the unions and Treasury Board. The honorarium that I receive for that ultimately comes from Treasury Board, because Treasury Board funds that trust. I would have to say, yes, I have received money from both agencies, and other government departments since then.
Senator Ringuette: I guess that makes a point.
Senator Comeau: I want to be sure I understood your response to Senator Kinsella's question. You seemed to indicate that it was perfectly fine for a senior civil servant to be seconded from the regular civil service into a Public Service Commission senior role. Do I understand you correctly?
Ms. Hynna: Yes.
Senator Comeau: Let me play the devil's advocate for a moment. I should like to go back to comments made by various witnesses. I think Mr. Baker was one of them who said that we would need to have a very robust audit function of the PSC from now on in order for the system to work. However, the very people that this public service commissioner will now be auditing in a robust manner will eventually, once his or her term in the public service commission is over, go back to the civil service and will decide and will depend for career advancement on the very people that had to be audited in a very robust manner. Would this not create an incentive for that person, while wearing the commissioner's hat, to be very careful as to who is audited robustly and who is audited with a much more gentle manner?
Ms. Hynna: I would hope that people would have more trust in the ability of senior public servants to do the job they are asked to do at the time they are asked to do it. I feel the same way about the fact that I have had some contracts with Treasury Board and the Public Service Commission, and that in no way influences what I want to say about this particular bill. I happen to believe this. If I did not, I do not need contracts. I happen to have done those kinds of things. I feel quite strongly that if I am in this job, then to do it well I have to take this particular position. I would think that if I do not do that job well, then my possibilities of future jobs in other parts of the government would not be considered because I would be seen as someone who did not do the job I was supposed to be doing when I had the opportunity to do it.
Let me add that one of the things we learn as public servants — and one of the values that I hope we have — is that we when are in a job, we do that job well. We move around from place to place. Often, we will move from one department to another, where there may be a conflict in these positions. When we move, we understand that and take a new position.
Senator Comeau: Following your logic, possibly the Auditor General could be an ADM or deputy minister, move from one line department of the civil service, come into the Auditor General's position and then go back. The Official Languages Commissioner could be handled in the same way, auditing various departments, and so on. Based on your logic, because all of these people are all fine individuals who have values, they would not be compromise in any way, shape or form, so let us trust them all.
Ms. Hynna: It is indeed within the realm of possibility that someone who is an Auditor General or the head of the Human Rights Commission or something else and who has an audit-type function at one point could then later on do a job that was not an audit function.
Senator Comeau: Okay. I think I have made my point. I just wanted to know how far you were suggesting that we, as parliamentarians, should trust that people not place themselves in that type of position. You are suggesting that we trust them entirely, completely. They can go from audit to somewhere and back and forward.
Ms. Hynna: I am just saying that I do not think there needs to be a rule about it. Not all individuals can be trusted completely. I think some people are able to make those distinctions of the role and find different roles.
Senator Comeau: I never suggested otherwise.
Ms. Hynna: I know that. I just do not think there needs to be a rule that says they may not. Whether or not what happened is another point of view, I just do not think there has to be a rule.
Senator Comeau: Again, not to put words in my mouth, I did not say that there should be a rule either.
Ms. Hynna: No.
The Chairman: On that note, we will conclude this part of our hearings. Thank you very much, Ms. Hynna. This was a very interesting perspective that you have brought and we are grateful for your input.
Honourable senators, thank you very much again for your cooperation.
The committee adjourned.