Proceedings of the Standing Senate Committee on
National Finance
Issue 1 - Evidence - November 21, 2013
OTTAWA, Thursday, November 21, 2013
The Standing Senate Committee on National Finance met this day at 2 p.m. to examine the subject-matter of Bill C- 4, A second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013, and other measures.
Senator Joseph A. Day (chair) in the chair.
[Translation]
The Chair: Honourable senators, this afternoon, we will be continuing our examination of the subject-matter of Bill C-4, A Second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013, and other measures.
[English]
This is our fifth meeting on the subject matter of Bill C-4. What that means, honourable senators, is we haven't received the bill yet, but we know the bill is in process in the House of Commons. To be ready to receive the bill when it comes, we're studying the subject matter of the bill. When I make reference to various pages, it's the bill that's actually over in the House of Commons at the present time.
This afternoon we will begin Part 3, Division 17, Public Service Labour Relations, which can be found at page 229 of the bill.
From Justice Canada, we welcome Dora Benbaruk, Director and General Counsel, Treasury Board Secretariat Legal Services. Also from Treasury Board Secretariat, but not Legal Services, we have Carl Trottier, Acting Assistant Deputy Minister, Compensation and Labour Relations Sector; Denis Duggan, Senior Policy Analyst, Compensation and Labour Relations Sector; and Drew Heavens, Senior Director, Compensation and Labour Relations Sector.
Ladies and gentlemen, welcome and thank you for being here. We have a good relationship with Treasury Board, so it's good to see you back. I hope that you will let your other Treasury Board Secretariat people who will be with us to deal with the supplementary estimates know we're looking forward to their presentation in the near future.
It's our policy to try and deal with this as best we can in a clause-by-clause manner, but if there are a number of clauses dependent on one another, that's fine. What we want is the concept and policy issue, and then how you're achieving it with the material before us.
If that is acceptable, who will begin?
Carl Trottier, Acting Assistant Deputy Minister, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: I will be leading this.
The Chair: We will start with Division 17 and then go on to Division 18 of Part 3.
Mr. Trottier: Thank you very much for having us today. We will be addressing Division 17 in the first instance. We will be looking at the collection of clauses only because they are all independent. We will be identifying them as well. I would like to do a presentation on each one of the key changes that took place, identifying the clauses that are pertinent to that and the changes themselves.
Within the realm of Division 17, under clauses 294, 296, 299, 300, 301 and 305, we have the elements of essential services. The employer will have the exclusive right to determine whether a service is essential or not for the safety and security of the public, and the employer will designate exclusively the positions necessary to perform the duties required to provide essential services and therefore not eligible to strike.
The PSLRB, which did have a role in this, will no longer have a role to play in this exercise. The process provides that the employer will consult with the bargaining agent for a period no longer than 60 days once the employer has notified the bargaining agent of the designated positions.
The right to strike remains unaffected in that, as before, employees who are designated as being essential are not permitted to strike. This has been the case since 1967. The right has always been restricted in one form or another.
With the introduction of the 80 per cent threshold for designations at which arbitration becomes the dispute resolution mechanism, a balance has been incorporated into the process. Disputes will not linger without resolution because the bargaining agent's ability to conduct an effective strike is compromised by having a highly designated bargaining unit membership. The public interest is also addressed in this way.
The next key change in the Public Service Labour Relations Act is that of dispute resolutions. It addresses clauses 297, 302 and 306. The choice of dispute resolution mechanisms will no longer exist for the bargaining agent in the context of collective bargaining. The default will be conciliation, which includes public interest commissions and provides the bargaining agent with the option of the right to strike.
The exceptions to this rule are those cases where 80 percent or more of the positions in a bargaining unit are designated. In that case, the dispute resolution mechanism will be arbitration. The parties may agree to use arbitration; therefore, there is another avenue that arbitration can be triggered, through mutual consent of the parties. In the cases of separate agencies, prior to agreeing to this, in other words arbitration, they must have the approval of the President of the Treasury Board.
The next key change in the Public Service Labour Relations Act is that of public interest commissions and arbitration boards. The clauses pertinent to these are 307, 308, 309, 310, 311 to 315, 316 to 319.
When making recommendations or awards, as the case may be, by the public interest commissions — which we call PICs — or arbitration boards, the boards must, one, give greater consideration to recruitment and retention and Canada's fiscal circumstances or the other factors. This was not the case in the previous Public Service Labour Relations Act.
Other factors, if relevant, may be considered, such as internal and external relativity, the value of work and the state of the Canadian economy. Arbitration boards and PICs must consider all elements of compensation, not just wages, when making awards or recommendations. This includes employer contributions, health care, dental insurance plans, pension plans and funds and bonus allowances and vacation pay and the like.
Public interest commissions and arbitration boards will be required to provide reasons in writing for the decisions or recommendations for their reports.
The Chair of the Public Service Labour Relations Board will be able to direct arbitration boards and public interest commissions to review their awards and reports if he or she is of the opinion that they do not represent reasonable application of the factors noted in the legislation.
The process for nominating a public interest commission member has been simplified to provide a more efficient process. Also, a wider choice will be permitted, since the parties and the chairperson are not confined to the specific list of nominees.
With regard to notice to bargain, eight significant changes have taken place — clauses 303 and 304. Previously, notice to bargain could have been provided four months prior to the expiry of the collective agreement. The proposed change is the negotiations can start up to 12 months prior to the expiry of the collective agreement. This will ensure that the notice to bargain can be provided earlier and therefore provide increased opportunity to reach settlements sooner and before collective agreements expire. This would reduce significantly the periods between expiration date and the agreement and signing of the renewed contracts.
There's a change with regard to the compensation and research analysis service, sections 295, 296 and 298. The compensation analysis research function of the PSLRB will be eliminated. This service does not meet the needs of the parties and has not been used anywhere near to the extent anticipated when it was established nearly seven years ago. All parties are free to undertake research that they believe is relevant and beneficial in negotiations. This is the case under the current provisions.
There are some transitional measures included under clauses 338 to 339. All the provisions contained in the bill as they pertain to the essential services and collective bargaining will come into force on Royal Assent, whether or not notice to bargain has been given. The only exception is if an arbitration board or public interest commission has been established before coming into force. In those circumstances, the old rules will apply. Transitional measures have been drafted to allow for the proposed provisions to come into effect.
With regard to essential services, the employer will have 12 months to prepare its notice to the bargaining agents on the designation of essential services. Where there currently exists an essential services agreement, as under the current regime, on coming into force those positions will be determined as being designated in the new regime.
With regard to the dispute resolution mechanism, where bargaining agents with essential services agreements in place on the date of coming into force, 80 per cent or more positions determined by the essential services agreement as being essential will proceed to arbitration. Less than 80 per cent proceed to the conciliation strike route.
For bargaining agents with no essential services agreements — there are some; we have only reached seven since this was created in 2005 — on the date of it coming into force, conciliation will be the dispute resolution mechanism.
With regard to notice to bargain, for those bargaining units where the 12 months' notice to bargain period cannot be met — in other words, we're not 12 months from the expiry of their collective agreement, we're less than that — the old or the current provision of four months will apply.
I'm going to ask Mr. Heavens to continue.
The Chair: Where are we going now?
Drew Heavens, Senior Director, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: We will continue in Division 17, but we will change our focus from collective bargaining to employee recourse mechanisms.
The Chair: Is somebody going to start at clause 294 and onward? We're going to go through this clause by clause. You're giving us an overview — and somewhat quickly given, but we appreciate that. Now we want to know how you're going to achieve those objectives.
Mr. Trottier: You would like to go through it clause by clause?
The Chair: Yes. You've given us the overview, so you can say this is the clause that achieves this and how. Could you also explain how that is a change, if it is, from the existing law?
Mr. Trottier: We'll complete the overview and then we'll do the clause by clause. Is that satisfactory to you?
The Chair: That's fine.
Mr. Heavens: I'll give you a brief overview of the policy changes with respect to employee recourse, which actually impact on three pieces of legislation: the Human Rights Act, the Labour Relations Act and the Public Service Employment Act. I'll cover seven broad categories.
The first one actually deals with several of the sections in Division 17. I can name them all, if you like, as there are a number of them. They deal with the changes to the human rights complaint process.
The Chair: Why don't you give them to us and we'll write them down? You go through them slowly, we'll make a note and then you can go through the clauses.
Mr. Heavens: The main policy change is that currently employees can have a number of mechanisms or streams of recourse to deal with allegations of discrimination. The proposed changes would have the employees narrow that down to basically two processes: a staffing complaint process and a grievance process. The parts of the legislation that are being amended by this policy change are clauses 325 to 328, 329, 330, 332, 333, 340, 349, 350 and 355.
As I mentioned, this will avoid duplication. If you are an employee in the federal public service, your recourse to challenge issues of discrimination will generally be the grievance process itself, up to and including a third party; or, if it relates to a staffing issue, it will through a staffing complaint under the Public Service Employment Act.
Important elements of the CHRA process have been brought into the Labour Relations Act and the Public Service Employment Act. The overall net effect is that the coverage or the protections are generally the same. For example, the Human Rights Act has a provision that allows people to file a complaint up to one year from the last act of alleged discrimination. This has been incorporated into the Labour Relations Act so that grievances related to discrimination can be filed up to one year after the last occurrence.
In addition, the Human Rights Act does not require union support. If the employee wishes to file a human rights complaint, they do not have to have the support of their union. That provision has been incorporated into the Public Service Labour Relations Act. The Human Rights Act currently has a process where it can be referred to a third party, the Human Rights Tribunal. That has been incorporated into the Labour Relations Act. The third party will be the public service labour relations and employment board. Currently under the Human Rights Act, there is no provision for the parties to pay the costs of adjudication or of human rights matters. That is also incorporated into the PSLRA and PSEA.
The second policy change deals with clause 325. That will require unions to support more grievances that are filed by their members. Currently, unionized employees in the federal public service only require their bargaining agent's approval to file a grievance, if it relates specifically to a collective agreement. The proposed changes would have all grievances requiring union support with the one exception that I already mentioned, grievances which relate to discrimination. This is very similar to what's found in most jurisdictions across Canada, where the union has carriage of grievances in unionized environments.
The third policy change covered in clause 335 relates to the cost or the expenses of grievance adjudication. Under the current regime, the parties — the union, the deputy head, the employer — do not pay directly for the expenses incurred for grievance adjudication. Clause 335 will require that either the employer or the deputy head, depending on the nature of the grievance, and the union, if the employee is a unionized employee, will equally share those costs. The expenses will be determined by the Executive Director of the Public Service Labour Relations Board. For employees that are not part of a union, expenses for those grievances will continue to be borne by the PSLRB.
The fourth category of changes relates to what's known under the Public Service Labour Relations Act as a policy grievance. This relates to clause 331 and clause 334 of the proposed legislation. The definition of a policy grievance has been changed to make mutually exclusive the concept of a policy grievance and individual or group grievances.
Currently there are three types of grievances in the Labour Relations Act: individual, group and policy. The policy grievance concept was introduced in 2005 and was meant as a means for the parties, either the union or the employer, to obtain an expeditious interpretation of a collective agreement or arbitral award. It was not meant to replace the individual grievance process. In fact, it was meant to be mutually exclusive of the individual grievance process. The current wording in the act actually creates overlap. Since 2005, in circumstances where there's overlap, there are policy grievances and several individual grievances dealing with the same issue.
Clause 334 relates to an adjudicator's remedy if a policy grievance goes to a third party. It limits the adjudicator's authority in that regard to declaring that the correct interpretation of the collective agreement, declaring that the collective agreement had been contravened, and requiring the employer or the union to interpret and apply the collective agreement in a specified manner without retroactive effect.
The fifth category of changes is dealt with at clauses 348 and 349 of the proposed legislation. It relates to the Public Service Employment Act and the issue of a right to complain in a situation of layoff. Under the current wording, there is ambiguity as to which process an employee facing layoff may pursue if they want to challenge their layoff. There is a process under the Public Service Employment Act and a process under the Labour Relations Act. Clauses 348 and 349 attempt to remove the ambiguity and allow employees the right to complain against the layoff in those situations where part of a work unit is being taken away but not all of that work unit is being taken away. The manner in which the employer determines who will be laid off is dealt with through what we call a selection for retention or layoff exercise, SERLO for short. This is a merit-based exercise. Any merit-based decision for layoff will be dealt with through the Public Service Employment Act complaint process. The other situation, where it's just one unique position being declared surplus or for layoff, can be grieved or challenged through the Labour Relations Act. It doesn't take away any rights; it simply clarifies which process is to be used in those circumstances.
The sixth policy area that's been changed is again relating to the Public Service Employment Act. This relates to staffing complaints and can be found at clause 351. It modifies what somebody can challenge in a certain circumstance. Currently, somebody who has been found to be unqualified or not qualified through a selection process has a right to complain and they can complain about the appointment of others. The proposed legislation will maintain that person's right to complain, but what they can complain about will be limited to their own personal assessment. It has been found that in the past, a person could complain about the appointment of somebody else, but the fact that they're not qualified may not be challenged. At the end of the day, even if they were to win their complaint or have grounds for their complaint, they would continue to be not qualified and they still would not be appointed to that position. In those circumstances where somebody is found not qualified, the focus of their complaint will be more personally related as opposed to related to others being appointed through that process.
Finally, there is the last category of changes. There are actually four minor ones; I call them process issues. The first one is dealt with at clause 334, I believe. It provides a deputy head, or their delegate, the authority to dismiss a grievance if it's found that the grievance is trivial, vexatious or made in bad faith. This power has already been found in the Labour Relations Act, the employment act and the Human Rights Act in relation to the third party tribunals. The addition just provides it to the deputy head that's deciding the grievance in the internal grievance process before it reaches a third party.
The next change is found at clause 336. It, too, is a minor restriction on the labour boards, the PSLRB's authority to extend the time limits for grievances. Currently they have the power, in the interest of fairness, to extend the time limits on application or upon their own doing. The modification at 336 would provide them that authority, but only to extend timelines in exceptional circumstances.
The second last change is found at clause 357 and it's an amendment to the Public Service Employment Act. It deals with staffing complaints and provides the staffing tribunal the authority to dismiss a complaint in situations where a complainant does not follow the process of the tribunal.
Finally, at clause 358, it provides for the staffing tribunal or the staffing complaint process to dismiss a complaint if the deputy head has rectified the matter in a means that the tribunal deems appropriate before the complaint is actually heard.
Mr. Trottier: That's the overview of the changes to Division 17. We will walk you through clause by clause starting with 294.
The Chair: Just as an overview comment, it looks like you've been doing a lot of work to revise and put all of this together. Is this something that has happened since the last budget was announced in the spring of this year?
Mr. Trottier: This is something that was developed quite recently for this recent BIA.
The Chair: All you have just gone over has been developed quite recently?
Mr. Trottier: Prior to the BIA, yes, the Budget Implementation Act.
The Chair: Prior to?
Mr. Trottier: Yes.
The Chair: Post-budget, prior to the Budget Implementation Act. Is that what I'm hearing from you, Mr. Trottier?
Mr. Trottier: Yes.
The Chair: Thank you.
Does anyone have any questions with respect to the overview before we go to the clause-by-clause?
[Translation]
Senator Bellemare: I have a comment. At the meeting of the Standing Senate Committee on Social Affairs, Science and Technology this morning, we examined changes to the Labour Code. During the presentation, there were tables that clearly illustrated the situation before and after. These tables were very useful to us in understanding the issue.
I understand that it was easier this morning, but I think we should do the same thing here. In our case, for these broad sections, you could have the current situation presented in black and any changes brought about by the act in red.
Right now, we are wandering from one clause to another, which leads to a lot of problems. Having that kind of tool to help us understand the issues would ensure that our questions are not as redundant.
That is what I had to say, Mr. Chair.
The Chair: Thank you very much. Would you like to respond?
Mr. Trottier: Thank you for your comment. Unfortunately, we do not have any tables such as the ones you saw earlier today. As we go through each clause, we will do our best to identify the changes made and show you how things were previously so that you can do a comparison. That is what I am proposing for today.
[English]
The Chair: Senator Buth, do you have a comment in relation to the overview?
Senator Buth: Just the overview.
Both of you have given us an overview in terms of ``here is the clause; here is what we're trying to do.'' Can you spend five minutes talking about overall in this section, what are you trying to do, what are you trying to fix?
Mr. Trottier: The obvious response to that is our analysis did indicate that the way the legislation was written and how it was operating had certain deficiencies to it and that some attention that needed to be brought to this. I pointed out examples with regard to only being able to reach seven ESAs, essential services, since 2005, so obviously the way that it's being conducted was a problem. We wanted to address those problems. Never was it our thought to try and leverage this in a way that will be more favourable to the employer than another. This was about making sure that it operated and worked well.
That was the focus of what we were doing, twelve months of notice to bargain. We have only settled once, as long as I've been doing this, and I've been doing this for some time, one collective agreement before the expiry date. We are always a few years behind the expiry date and we are looking back and saying those two years have gone by and we still do not have a contract. It was about trying to find ways to operationalize this to make it more efficient.
Mr. Heavens: Do you have a question with that, or can I respond on the employee recourse, generally speaking?
I believe it was the Prime Minister's Advisory Council on the Public Service that in their latest report mentioned or made reference to the overly complex recourse system currently in place in the federal public service for employee complaints. The changes overall here are meant to streamline and modernize some of those processes, not all of them, and to avoid duplication in the hope that whatever the issue is, it can be resolved more quickly and easily for the manager and the employee involved. It's not meant to take away rights that currently exist. It doesn't affect any collective agreements currently in place, but it's a means of reducing the number of recourse processes or mechanisms and the avenues that employees can pursue so that the complaints can be dealt with more expeditiously.
Senator Buth: If I could summarize, then, what you're trying to do is more efficient and timely bargaining, so we're not bargaining past the point where we have had a collective agreement; and the other is to simplify the complaint process so it makes it easier for the employee and the employer to deal with complaints.
Mr. Heavens: Correct.
The Chair: You're not suggesting that's the only thing they're trying to achieve here? There's designation of —
Senator Buth: That's what I heard. If you're trying to have a more efficient bargaining system — if I understand that you only had seven agreements for essential services, maybe I should ask you this question: How many agreements should you have for essential services? If you have only negotiated seven, that sounds like a low number.
Mr. Trottier: I'm not sure how many we should have because it all leads to whether they are going to go on strike. Not all of them, but 14 had the potential of going on strike, and we had seven of those only. With now a default of the strike route, there needed to be also an adjustment with regard to how we dealt with essential services. It had to be efficient; it had to be able to ensure that Canadians were well covered and well protected.
Senator Buth: When did the requirement for an essential services agreement come into place?
Mr. Trottier: In 2005.
Senator Buth: Why did that come into play?
Dennis Duggan, Senior Policy Analyst, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: The ability to designate for safety and security of the public purposes, as Mr. Trottier mentioned earlier, started in 1967, with the introduction of the Public Service Staff Relations Act. Through that whole period, up to 2005, there were always difficulties with respect to trying to designate employees. On several occasions we were certainly criticized, or the government's position on this was certainly criticized, in that you could designate 100 per cent and there would be no other alternative for the bargaining agent. So you could have 100 per cent of your membership designated and no alternative, which means they could conduct a strike in theory only, which is never good for relations and tends to cause lingering resentment. I can put it that way.
In 2005, the thought was that we could formalize the process and bring the bargaining agents into the process to establish essential services agreements. It might improve the chances of obtaining essential services designations, if you will, and thereby simplify and get the parties to focus on achieving settlements at the table rather than looking at leveraging how many positions you can for the purpose of managing a strike.
Since 2005, we haven't had that many. Of course, most of the time when you get one, you're doing it up to the point, at the last minute. So there is lack of predictability right now in terms of before you go into bargaining, before notice to bargain is served by usually the bargaining agent, but either side, so you don't know before going in whether or not you will have the essential services agreement in place. Therefore you tend to create situations where it lingers and becomes a leveraging point in the negotiations.
That's the experience we have had and that's why these changes are being proposed.
Senator Buth: Okay; good start.
The Chair: Yes, it's a good start and thank you for that. It's helpful.
[Translation]
Senator Hervieux-Payette: I would like to go back to Senator Bellemare's suggestion. In the coming weeks, it would be extremely helpful to us to have a table that would show the previous section in one column and the new clause in a second column. Since some explanations are already available, they could be included in a third column. Right now, it is very difficult to follow what is going on. If we are to do our jobs properly, we need some help with this. We will do what we can today, but we will be going through a similar process with other witnesses during our next meetings, Mr. Chair, and this type of table would make our work much easier.
I think it is doable. I prepared this kind of information when I was a public servant at the Department of Labour in Quebec City, and I can tell you that it is very doable. Parliamentarians are not labour specialists and I think the information would be very useful.
I do have a question. I would like to know what kind of delays you are seeing in the grievance process. Will these changes improve things for individuals? We talked about unions, but there are also unionized employees. How long does it take to settle disputes and what kind of delays are we talking about? How will this new bill improve the situation? Labour relations can be quite difficult when grievances are being dealt with.
[English]
Mr. Heavens: In terms of the grievance process, every case will be different. It depends on the nature of the case. Specific timelines are contained in each of our collective agreements in terms of a grievance going through two to three levels within the department and then, depending on the nature of the grievance, it can be referred to what we call adjudication, which is often called arbitration at the labour board. It would be difficult for me to say how long it would take for a grievance to go through all of that process because it depends on a number of things. It depends on the complexity of the case as well.
With respect to the time frames contained in the collective agreement, generally speaking someone has to grieve an issue within 25 days of it occurring and then each grievance level is generally between 15 and 25 days in order to refer it to adjudication. There is about a 30- or 40-day time frame in which they can do that, and then it's up to the labour board itself to actually schedule that case.
That gives an idea of the timelines stipulated in the collective agreement under the regulations, but they're often extended by mutual consent. If the issue is complex and requires investigation, of course that will take some time as well. How will the new law assist that? It will avoid some of those cases going to one or two or three different routes, either simultaneously or consecutively.
An example would be where somebody has filed a human rights complaint. It goes to the Human Rights Commission. They do their preliminary analysis, which can take some time — I'm not going to guess how much, but it's several weeks if not longer — to determine whether or not they will actually deal with that complaint. Oftentimes the Human Rights Commission will say, ``Go and use your grievance process,'' so that complaint will all of a sudden get kicked over to the grievance process. It will then start up the grievance route. If it's the type of grievance that can be referred to adjudication it can go all the way to a third party. At the end of that, with a decision in hand, if the employee isn't satisfied that their discrimination issue has been dealt with, they can request of the Human Rights Commission that their file be reopened at that end. They will do a preliminary analysis of that, after which they could open it up for full investigation and refer it to tribunal.
It's going back and forth between these processes that will be eliminated through the changes proposed in the legislation.
[Translation]
Senator Hervieux-Payette: What kind of delays are you seeing with grievances? In English, we say backlog; what is your backlog?
[English]
Mr. Heavens: I can speak only to the backlog contained in the Public Service Labour Relations Board's annual report. I don't have the numbers for the grievances within the departments, but once it gets up to the third party adjudication stage I believe there's a backlog of around 2,000 grievance cases which the Public Service Labour Relations Board is dealing with.
[Translation]
Senator Hervieux-Payette: How many people are assigned to this type of work?
[English]
Mr. Heavens: I'm not completely aware of the number of employees that the labour board has in terms of the members that hear these cases. There are approximately 10 full-time and 10 part-time members that hear these cases.
The Chair: Mr. Trottier is prepared to begin the review on a clause-by-clause basis. I have Senators Callbeck and Eaton on my list.
Were your questions to do with the overview or to do with a specific clause that we may get to?
Senator Eaton: The overview.
Senator Buth asked most of my questions, but do you expect an upswing in the number of areas that become essential services?
Mr. Trottier: No, we don't expect an upswing. The way ``essential services'' was captured — not the process but the essential services themselves — for safety and security hasn't changed, so there shouldn't be a creation. Will there be some slight variations? There might be slight variations because before it was a negotiation — now it's not a negotiation. It's just a question of identifying those positions that are essential for safety and security.
I would expect slight variations but not a huge upswing or a drop.
The Chair: That's helpful and we will look forward to seeing the statistics over time on that.
Senator Callbeck, is your question related to the overview?
Senator Callbeck: One is, and that is that I certainly agree with the people who have suggested we have some kind of table to show what the current situation is and how the legislation would change it.
I have a question on essential services but maybe you want to wait.
The Chair: The first six or seven clauses are on essential services. You've given us about 10 different groupings. Are you able to produce the document that shows those groupings and what is going to be achieved and the current state?
Mr. Trottier: We will put a table together that shows exactly that.
The Chair: Thank you very much. If you can give that to the clerk, it can be circulated to everyone on the committee. I think we would all find that very helpful.
Mr. Trottier, shall we begin at the beginning?
Mr. Trottier: Let's begin at the beginning. It's always a good place to begin.
The Chair: Clause 294.
Mr. Trottier: I will ask Dennis Duggan to walk us through the clause-by-clause starting at 294.
Mr. Duggan: Starting with the amendments to the PSLRA at 294, 294(1) repeals the definition of ``essential services agreement'' as is currently found in subsection 4(1) of the PSLRA.
Clause 294(2) amends the act by replacing the concept of ``essential services agreement'' in subsection 4(1) with the concept of ``essential service'' under subsection 119(1) of the PSLRA.
Clause 294(3) deletes subsection 4(2) which describes a position with respect to an essential services ``agreement.''
Senator Hervieux-Payette: Do we ask a question clause by clause, or are we doing the whole section?
The Chair: No. When we're at a spot where you don't understand or wish someone to elaborate on any question in that clause, that's the time to intervene.
Senator Hervieux-Payette: I have some questions on 294.
The Chair: We just happen to be at the end of 294 and this is an appropriate time to pose your question.
Senator Hervieux-Payette: I was afraid you would go to 295; that's why I'm asking.
Again, here is the dilemma when we don't have a reference. What was subsection 119(1) saying?
[Translation]
By replacing it with the concept of essential services under subsection 119(1). What does that mean, ``under subsection 119(1),'' which I do not have in front of me?
[English]
Mr. Duggan: Because the entire section is being revamped, section 119 that existed before didn't deal with the idea of the definition, which was, as I said previously, contained in the definition section. This is an entirely new process that we're talking about, so the idea of having an essential services agreement is not relevant in that. To make it work better, the definition of ``essential services,'' which is currently in the act, is placed in that section. That's all that does.
I can read the section for you. Section 119 now reads:
The employer has the exclusive right to determine whether any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public.
That's actually what's contained in the current definition, referring to safety and security of the public, which is the primary objective in that process.
[Translation]
Senator Bellemare: How were things done previously? Here, the employer will establish which services are essential. In the past, essential services were negotiated at the beginning of a negotiating session. Could you explain how essential services were negotiated?
There is a certain common sense in designating some services as being essential and maintaining them.
What kind of difference will this make? You responded that it would not change very much, but I would like to know how things were done before so that I can understand how this will not change very much.
Mr. Trottier: That is an excellent question. In the past, it was always the two parties, the bargaining agent and the employer, who, along with the department that was most informed about their essential needs, would negotiate the essential service agreement. There was really a certain number of positions, X number out of 2,000, which would be deemed essential. An agreement had to be reached as to the list of these positions. This had to be done as early as possible. However, it could never be achieved before the very end, when the situation had almost reached a crisis point, or actually had. The parties would be close to going on strike. They could not go on strike because there had been no agreement. The law stipulated that agreements had to be in place before the bargaining agent could call for a vote on strike action and call a strike, and there was always a big rush at the end.
We realized that bargaining agents used stalling as a strategy.
Senator Bellemare: Service officers.
Mr. Trottier: Yes, service officers stalled to try to apply pressure at the end. This is not why this process was put in place in 2005. The idea was that there would be agreements and that the agreements would have to be renewed from one negotiating round to the other. This is not what happened at all.
Senator Bellemare: That is what I was trying to understand. How is it that, once it was negotiated, the list was constantly being renegotiated?
Mr. Trottier: Is was not.
Senator Bellemare: It was not?
Mr. Trottier: Aside from five or seven times, it was never negotiated.
Senator Bellemare: And this process was adopted in 2005?
Mr. Trottier: Yes, in 2005.
Senator Bellemare: It is now 2013. What you are saying is that, between 2005 and 2013, no list of essential services was able to be negotiated, so that collective agreements could be negotiated on a regular basis. Is that truly the problem?
Mr. Trottier: Yes. That is correct.
[English]
Senator Callbeck: That was my question. Thank you.
The Chair: Okay, that takes us through the first clause. I think with the background you've given us, we'll find it will flow through fairly quickly because you've already told us what you're trying to achieve, so you can just move along with the clauses. We can read, for example, that in section 296, clause 16 is repealed, but you might just say why that's no longer necessary, that kind of help.
Mr. Trottier: Sure.
Mr. Duggan: Starting again at section 295, sections 295 and 296 deal with the same issue, which is the removal from the Labour Relations Board the function of compensation analysis and research services. In essence, that is repealed from their mandate, and clause 16 is just consistent with the repeal.
Clause 297 repeals paragraph 39(h) of the act. That subsection refers to the PSLRB's power to make regulations regarding the choice of dispute resolution mechanism by bargaining agents for collective bargaining. Of course, because there will be no choice going forward with respect to the choice of dispute resolution mechanism, this section was amended as such. There is no need to have regulations for the fact that there is no choice.
The Chair: That's the situation either with arbitration if you are over 80 or 90 per cent essential service or conciliation with strike possibility if you're not?
Mr. Duggan: Correct, or if the parties can agree, of course.
The Chair: Okay.
Mr. Duggan: Subsection 297(2) refers to the powers of the board to make regulations with respect to notices involving the designation of positions that are considered essential for safety and security of the public under the amended provisions described later in this bill concerning the provision of essential services.
Clause 298 deals with section 53. Again, it has to do with repealing the mandate provided to the board with respect to compensation analysis research services. In section 53, an advisory group would advise the board with respect to that matter, and that section is being repealed as a consequence.
Senator Callbeck: Why are you doing that?
Mr. Duggan: In essence, this is a function that has existed only since 2005. Since then, there have only been two analyses conducted by the PSLRB in that area, and one of those studies was actually conducted by a private sector firm.
Since 2005, with all the negotiations we've had, there have only been two instances where we have had a report from what we refer to as CARS in relation to that.
The other aspect, and this has existed since we started collective bargaining and certainly since 2005, is that the parties are capable of doing their own research and analysis and use it in bargaining, or as the case may be, before an arbitration board or a public interest commission.
[Translation]
Senator Bellemare: I would like to go back to something. Just to make sure I understood correctly. When the employer designates essential services and more than 80 per cent of the jobs are designated, the regime is mandatory arbitration and no right to strike. If it is under 80 per cent, they can go to arbitration, but do they also have the right to strike?
Mr. Trottier: That is correct.
[English]
The Chair: I think we're down to 299.
Mr. Duggan: Clause 299 deals with section 67 and amends that part by repealing paragraph (e), which refers to essential services agreements. It's fairly editorial in relation to the objective of going to a different system.
Clause 300 deals with subsections 79(1) and (2) of the PSLRA. They are amended to delete, again, the references to ``essential services agreement.'' Clause 301 does the same thing; it's removing references to essential services agreements.
Clause 302 amends sections 103 and 104 of the PSLRA and replaces it with a new section referring to ``Process for Dispute Resolution.'' Section 103 is amended by removing the ability of the bargaining agent to choose a process of dispute resolution, which I referred to earlier, and makes conciliation the sole process for dispute resolution of the collective bargaining process, subject to section 104.
Section 104 as it exists currently is replaced by section 104(1) and provides for the employer and the bargaining agent for a bargaining unit to agree in writing to choose arbitration in the process.
Section 104(2) talks about ``the day on which notice to bargain'' may be given. This refers to the 80 per cent that we keep talking about. At that point, if the bargaining unit in question is more than 80 per cent, then it is automatically arbitration as the dispute resolution process; if less, then it is conciliation.
[Translation]
Senator Bellemare: The arbitration they are talking about here is conventional arbitration, since there are other types of arbitration that are increasingly popular in the public sector, during which the employer side and the employee side make their best offers in both cases, and the arbitrator chooses one of the two. Is that what we are talking about here?
Mr. Trottier: No, no changes have been made.
Senator Bellemare: This is conventional arbitration during which the arbitrator may choose to split the difference, as he or she sees fit?
Mr. Trottier: That is correct.
[English]
The Chair: But it is binding arbitration.
Mr. Trottier: Absolutely, yes.
The Chair: That's important for our colleagues to understand.
[Translation]
Senator Hervieux-Payette: That is because the notion of 80 per cent has been introduced so that essential services may be provided. Do they go to arbitration automatically without any bargaining? Are the parties immediately forced to accept arbitration if there is no agreement on the 80 per cent?
Mr. Trottier: No.
Senator Hervieux-Payette: Or will there be normal and true negotiations if the process takes place in the timeframe you mentioned earlier, meaning that things begin at the bargaining table?
Mr. Trottier: At the beginning, a choice will have to be made. For the initial choice, the law stipulates whether that is arbitration or strike. If over 80 per cent of the employees are designated, then it is arbitration. Even knowing that, we begin with bargaining. That option is set aside with the understanding that should the parties not arrive at an agreement, that avenue will be chosen or the choice will be made for the parties. Bargaining continues for the required period of time and an attempt to reach an agreement is made in good faith. If there is no agreement at that time, should the parties decide they wish to proceed to some kind of resolution, arbitration will be available to them.
Senator Hervieux-Payette: It is only when things bog down?
Mr. Trottier: Absolutely.
[English]
Senator Callbeck: You mentioned about arbitration being binding, yet in this legislation further on, I think in section 18 on the new body that's set up, can the chairman of the board ask for a review after that?
Mr. Trottier: Yes, the chairman can ask for review.
Senator Callbeck: So that doesn't change; that's the same.
Mr. Trottier: The chairman doesn't have the ability to ask for review right now. This is new.
Senator Callbeck: That's going to be changed.
Mr. Trottier: That is new in the sense that we've changed the criteria that the chairperson needs to take into consideration when rendering a recommendation, if it's a PIC; or a decision, if it's arbitration. By doing so, we've also asked the chair of the board to make sure that those criteria are well applied. If the chair says, ``I don't think you have applied them properly,'' then he or she can ask for the decision to be reviewed. The decision remains binding at the end.
[Translation]
Senator Bellemare: During arbitration, when parties enter into negotiations, we often see timeframes that are stipulated in the legislation. They have so much time to do this or that. Before heading into arbitration, are there any stipulated timeframes?
Mr. Trottier: The act does not specify a timeframe.
Senator Bellemare: So they could spend two months or six months attempting to reach an agreement, but who will say it is time to go to arbitration? Do both parties have to agree on that or will the employer simply decide: look, we have been bargaining for two months now without reaching an agreement, so it is time to go to arbitration?
Mr. Trottier: There has to be a comfort level, that all possible efforts were made during bargaining and that bargaining took place in good faith. That is the first test to be certain we have reached the end and that no agreement is possible. Someone is being unreasonable, whether one or both parties, someone is being unreasonable despite all possible efforts.
Then, either the employer or the bargaining agent can contact the board to ask for arbitration. They do not have to agree upon that. One party suffices.
Senator Bellemare: I noted that you mentioned certain criteria, including economic conditions.
Mr. Trottier: Yes.
Senator Bellemare: During this arbitration process, is there not a greater risk that arbitration be requested by the employer rather than the labour side? No? Have you ensured that the process was balanced?
Mr. Trottier: It is balanced. It is very rare for the employer to want to go to arbitration. The employer wishes to settle things. The directive I give my bargaining agents is to always try to reach a settlement, because that is how one reaches the best agreements.
For the small number of groups who do move to arbitration, it is usually the bargaining agent or the union who makes the request.
Senator Bellemare: Let us say the unit goes to arbitration. A decision is made by the arbitrator. How will the criteria be set for the economic circumstances? How will it be decided that the arbitrator has given the right amount, not too much and not too little, and what about the ability to pay? How will all this be done? This is a new criterion.
Mr. Trottier: There is another new element as well, which is the written explanation provided by the arbitration office, which did not exist previously. Often, we looked at a decision and thought: I do not understand this. I do not know why they are doing this. It was not explained. Now, they will have to explain why they are ordering 5 per cent more than others received.
There will be reasoned explanations. They will have to point to data, the economy, recruitment or retention to explain: this is why I did what I did. This will be a very important tool for both parties, because it is an opportunity to learn. It will be possible to truly understand the why and how of the reasoning that led to the decision. For the time being, that information is not available.
Senator Bellemare: If the arbitration decision is challenged, would that come from Treasury Board, the department, or elsewhere?
Mr. Trottier: The president of the board may ask that the decision be reviewed; beyond that, a judicial screening could be requested, but that is very rare.
[English]
The Chair: Thank you. Let's move on. Clause 303, I believe, is at page 231.
Mr. Duggan: Clause 303 amends subsections 105(1) and 105(2) and is replaced by a new subsection 105(1) and paragraphs (2)(a) and (b). It provides that the notice to bargain period will be within a 12-month period prior to the expiration date of the agreement or arbitral award, subject to circumstances covered by the new subsection 105(2.1).
New subsection 105(2.1) provides for the case of a bargaining agent and an employer that have never been bound by collective agreement or arbitral award. With respect to a particular bargaining unit, a notice to bargain may be given 60 days after the day on which the employer has notified the bargaining agent whether or not it has designated positions in the bargaining unit as performing an essential service. The process involved in designating positions as being essential for the safety and security of the public is outlined later in the amended sections 120 to 125 of the PSLRA, and that's clause 305 of the bill.
Subclause 304(1) replaces the portion of the current section 107 before paragraph (a) to refer to the appropriate section reference. It's simply an editorial amendment.
Subsection 107(a) is also an editorial amendment of the French version to better reflect the English version.
Clause 305 replaces sections 119 to 134. Subsection 119(1) provides that the employer has the exclusive right to determine whether a service, facility or activity is essential, because it is necessary for the safety and security of the public or a segment of the public.
Subsection (2) provides that nothing in the PSLRA is to be construed as limiting the employer's right to make a determination under subsection (1).
Section 120, as it will exist once the bill is passed, provides that the employer has the exclusive right to designate the positions in the bargaining unit that have, in whole or in part, duties that are or will be necessary to provide the essential service, and that the employer may exercise this right at any time.
Subsection (2) provides that nothing in the PSLRA is to be construed as limiting the employer's right to designate positions, as noted in subsection (1).
Subsection 121(1) and (2) provide that the employer must notify the bargaining agent for a bargaining unit in writing that the employer has or has not designated positions as being necessary for the employer to provide an essential service. If the employer has designated positions, the notice must also identify the designated positions.
Subsection (3) deals with the provision providing that notice can be given at any time but not later than three months prior to the first day on which notice to bargain may be given. However, for a bargaining agent certified for a bargaining unit after the commencement date, which is the coming into force, the notice with respect to a designated position must be given within 60 days after that certification. That's essentially a new certification.
Subsection (4) requires that the employer must notify the PSLRB of the date the notice was given, in accordance with this section.
Subsection 122(1) provides that after notice is given under subsection 121(1), the employer must, without delay, commence consultations with the bargaining agent concerning the designated positions identified in the notice. The consultations have to terminate 60 days after the notice was given.
Subsection 122(2) provides that within 30 days following that 60-day period in subsection (1), the employer must notify the bargaining agent of the positions in the bargaining unit that the employer has or will designate as essential.
Section 123 provides that in the case of a designated position, if it becomes vacant, the employer may identify a position of the same type as a replacement. In that case, the bargaining agent is to be notified.
Subsection 124(1) provides that the employer must notify the employees whose positions have been designated under section 120.
Subsection 124(2) provides that the notice given under the section remains valid until the employer provides notice to the employee that the position the employee occupies is no longer necessary for the employer to provide the essential service.
Subsection 125(1), as it will exist, provides that every term and condition of the employment in place on the day notice to bargain was given remains in force in respect of employees whose positions are designated as essential under section 120.
Subsection 125(2) provides that nothing in the act is to be construed as limiting the employer's right to ensure an employee who occupies a designated position to perform all the duties assigned to the position and be available during off-duty hours to report to work without delay, and to perform those duties.
The Chair: That is a good overview. I have a couple of senators who would like some clarification.
Senator Buth: In section 122 you talk about consultations. So the notice is given essentially that the employer has designated the positions, and then they give notice to begin the consultations. After those consultations are done, the employer essentially indicates which positions are essential services. What's your expectation of the consultations?
Mr. Trottier: It's expected that the bargaining agent will be consulted in a meaningful manner. It is expected the department will get the input of the bargaining agent. The bargaining agent is also very well aware of those positions and has a keen understanding of what is essential and not. There was no agreement in the past, but we do want to get their input.
We are giving that guidance to the departments to consult very meaningfully, and our expectation is that's exactly what they're going to do.
The Chair: It's not negotiation; it's consultation.
Mr. Trottier: Correct.
[Translation]
Senator Hervieux-Payette: I have a question about this and another one about clause 125(2).
With respect to clause 62(1), if the government representative has the last word — and I do understand everyone was born with good faith — what would motivate the bargaining agents to sit at the table if practically speaking, no matter what they suggest, the employer will have the last word? This process does not seem destined to succeed as far as I am concerned, unless you can tell me that you know these bargaining agents, that they are so flexible, then that you are as well, and that you will all be able to get along. In other words, there will be an agreement, but you will decide what that is. This is how I see things. The possibility of agreement was taken away, but you are going to make an effort to reach an agreement. How can this section be interpreted?
Mr. Trottier: To begin with, we are not talking about agreements anymore. We have already agreed upon things; this is truly a consultation, and then a determination will be made by the employer. The bargaining process, which we have experienced since 2005, does not really work. We are aware of that and it is quite clear. This is why we have changed the law. If consultation takes place in good faith, and the bargaining agent proposes a higher or lower number of positions that should or should not be designated essential, the employer or the department will recognize that and amend their list. We consult bargaining agents on many other issues, we solicit their comments, we make changes to this or that policy because they have made a good point. We would like to use this approach to be able to designate essential services as well.
Senator Hervieux-Payette: I hope that you will all start with a pill and some sort of elixir, because it seems to me that it is the same people who are going to end up in that situation; if it did not work under the old system, I have the impression that this is not very encouraging. Those are my comments.
In clause 125(2), we read that:
... an employee who occupies a designated position to perform all the duties assigned to the position and be available during off-duty hours to report to work without delay, and to perform those duties.
What is going to be done with mothers who are breastfeeding their babies? What is going to be done with people who have health problems, and so on? How are you going to designate that? In the end, it seems to me that it is somewhat authoritarian to say that someone could be there in their free time. It means that they are going to be doing more than eight hours a day.
[English]
Mr. Duggan: If I may, the situation in terms of employees at work is actually not different because you're talking about employees who are designated, so they would be like any other circumstance. Depending on the situation — if we're talking about the particular instance that you mention — that circumstance exists today.
In terms of managing people, obviously you have to take into account their individual circumstances and nothing is going to change in that respect. All this does is require that employees be paid in accordance with the terms and conditions that exist at the time of notice to bargain. Of course the expectation is that if you're designated, you have to do the full range of duties when you come to work and be available as you would otherwise to be called back.
It's not going to interfere with the way you normally manage people.
[Translation]
Senator Hervieux-Payette: Does that mean doing overtime? I understood it to mean working more than one normal work day.
[English]
Mr. Duggan: No, I think you're referring to the possibility that they need to be called back to do work on an overtime basis; that could happen.
[Translation]
Senator Hervieux-Payette: So, you are saying what I just said. It is overtime. What I am asking you is, how are you going to decide?
[English]
Mr. Duggan: How they normally determine it is that, depending on the collective agreement, sometimes they have to be available. Depending on the nature of the work, they may be equally distributing the overtime on a rotating basis. It's up to the departmental managers to manage that, but that wouldn't change in any other circumstances.
[Translation]
Senator Hervieux-Payette: Are they going to be paid time and a half?
[English]
Mr. Duggan: Even double time, depending on when that overtime would occur.
The Chair: I think senators are just looking at the end of subclause 125(2), where it says, ``be available during his or her off-duty hours to report to work without delay.'' I think that's what we're focusing on here.
Mr. Duggan: Correct, but that is actually the circumstance anyone is in, regardless of whether they're designated or not or whether they're on strike or not. That's the expectation. Collective agreements deal with that and there are certain premiums that the employer has to pay if those things occur, including callback, reporting pay and overtime.
[Translation]
Senator Chaput: We are talking exclusively about essential services here, is that not right?
Mr. Trottier: Yes, that is it.
[English]
Mr. Duggan: In this case, yes.
[Translation]
Senator Chaput: And these are essential services according to the list set by the employer, in consultation with employees but not necessarily negotiated, correct? Okay, thank you.
[English]
Senator Callbeck: Essential services aren't negotiated, so the bottom line is that the government is going to say what essential services are and how many positions are essential. They set the threshold here at 80 per cent, so obviously the government can force arbitration; is that right?
Mr. Trottier: No, they can't just set it the way they want. It has to be based on safety and security of the public. I'll give you an example.
Most of my staff, up to about 150 people, would probably not fit that definition of safety and security of the public and they would not be called in. They would not form part of that list because the fact that administrative or clerical staff is not there that day will not create an instance of security and safety for the public.
We can't fabricate this. It has to be an instance where the safety and the security of the public are in jeopardy.
Senator Callbeck: So who determines that? If the government says 81 per cent of positions, who is there to say no, there's only 70 per cent?
Mr. Trottier: The employer will determine who it is, but the employer must also be able to explain why these positions are essential for safety and security.
The Chair: To whom?
Mr. Trottier: The departments will be identifying those positions. The employer would act as a central agency where there would be a vetting of those positions and guidance toward the departments in terms of what is and what is not appropriate.
The Chair: I think what the senators are trying to get to is the check on the power to designate. There is no appeal process in here. What will the check be? Public opinion?
Mr. Trottier: At the end of the day, it could be a judicial review. It could be as simple as that.
The Chair: The federal court
Mr. Trottier: Yes.
The Chair: Okay. Shall we move on?
Mr. Duggan: Clause 306 is simply an editorial amendment.
The Chair: Editorials are fine; moving along.
Mr. Duggan: Clause 307(1) replaces the current section 148 with making an arbitral award. What I will say about arbitration is also reflective of what I will say about conciliation when we come to it.
The Chair: Do you want to say it now or then?
Mr. Duggan: What I have to say about this will be repeated and we will just refer back to this.
Mr. Trottier: If I can clarify, the conditions are the same, so if you go on arbitration or you go on conciliation strike, the criteria are exactly the same. We would be repeating ourselves, so whatever we are saying right now, please consider that it applies both to arbitration or conciliation, strike.
The Chair: Could I suggest that you not say conciliation with strike, but conciliation and the possibility of strike?
Mr. Trottier: Absolutely. We don't like strike.
The Chair: That's what I'm trying to say. It sounds like you're inviting it by saying conciliation and strike.
Mr. Trottier: I only have one on my record so far, so I'm doing okay.
Mr. Duggan: The act only refers to conciliation, per se.
The Chair: Sounds much better than strike, per se.
Mr. Duggan: As the dispute resolution process.
The Chair: Or et cetera, right?
Mr. Duggan: That's right.
Section 148 is replaced by the heading that talks about making an arbitral award, and provides that in determining the amount of compensation that constitutes a prudent use of public funds and sufficient to meet operational needs, an arbitration board must be guided by and give preponderance to the following factors when determining pay levels and other terms and conditions of employment.
Section 148(1)(a) talks about the necessary of attracting and retaining competent persons to meet the needs of Canadians, and 148(1)(b) refers to Canada's fiscal circumstances related to its stated budgetary policies.
Subsection 148(2) has the other factors that an arbitration board may consider if relevant. In making the determination referred to in subsection (1), the board may take into account these other factors. Paragraph 148(2)(a) deals with relationships with compensation and terms and conditions of employment as between different classification levels within an occupation and as between different occupational groups in the public service.
Section 148(2) talks about the compensation and other terms and conditions relative to employees in similar occupations in the private and public sectors, including geographical, industrial and other variations that the arbitration board considers relevant. Paragraph 148(2)(c) talks about compensation and other terms and conditions of employment that are reasonable in relation to the qualifications required, the work performed, the responsibilities assumed and the nature of the services provided.
Paragraph 148(2)(d) refers to the state of the Canadian economy.
Clause 307(2) amends section 148 by adding a subsection (3). Subsection 148(3) would provide that: ``Nothing in subsections (1) and (2) precludes the operation of sections 17 to 19 of the Public Sector Equitable Compensation Act.'' You should note that that particular act is not actually in force at this point.
The Chair: It hasn't been —
Mr. Duggan: Proclaimed? No, not yet.
The Chair: I'll make a note of that. I have senators who would like a bit more explanation.
[Translation]
Senator Hervieux-Payette: Under paragraph 148(2)(d), we talk about the ``state of the Canadian economy.'' According to whom? What is going to be used as a reference?
Mr. Trottier: It will either be a presentation of public documents, the budget could be used to identify —
Senator Hervieux-Payette: No, no. The Canadian economy. The budget, that is in another section. I am talking about the economy.
Mr. Trottier: You are at 148(2)(b)?
Senator Hervieux-Payette: No, no. I am at 148(2)(d). It just refers to ``the state of the Canadian economy.'' I am telling you that that is very general.
Mr. Trottier: It is general, but at the same time, we have the Department of Finance, which evaluates the state of the Canadian economy and then will guide us in this case.
Senator Hervieux-Payette: Okay. Paragraph 148(1)(b), talks about ``Canada's fiscal circumstances related to its stated budgetary policies.'' In the event of a budget surplus, does that mean that employees could ask for better pay, and say that since the government has a few billion dollars more, perhaps they could get a 2 per cent salary increase?
Mr. Trottier: Employees can always ask for it. In that case, it would be up to the chair of the committees to take into consideration Canada's fiscal circumstances.
Senator Hervieux-Payette: And this section did not exist before?
Mr. Trottier: What really did not exist before, was the precedence given to these two factors: recruitment and retention, and Canada's fiscal circumstances. The precedence did not exist; five factors were always part of the criteria, except that none had precedence. All of the factors had to be considered. It was left up to the chair to decide the emphasis or the weight to give each factor.
We found that there really were two factors that required particular attention, and that is where changes were made. Those were recruitment and retention.
In other words, with salaries, pensions, benefits and all that, did we succeed in attracting qualified people? If the answer is yes, it means that we are doing something right in terms of overall compensation for these employees. That is a significant outcome and we wanted chairs of committees to take that into account. And Canada's fiscal circumstances are also very important in this respect.
Senator Hervieux-Payette: When you say ``preponderance'', I was thinking that preponderance would apply to all of the paragraphs, which are 148(1)a), 148(1)b), 148(2), 148(2)a), 148(2)b), 148(2)c) and 148(2)d). Here, you are talking about two of them, and there were five. Are all of the ones that appear here preponderant?
Mr. Trottier: Only paragraphs 148(1)a) and 148(1)b) are considered to be preponderant.
Senator Hervieux-Payette: It seems to me that it is not worded like that.
Mr. Trottier: I will read it to you in English.
[English]
Therefore, section 148(2): ``If relevant to the making of a determination under subsection (1), the arbitration board may take any of the following factors into account:''
[Translation]
It is indicated that those are additional factors.
[English]
Senator Callbeck: I just wanted to be clear about these eight factors that are listed here. Are they there now? Are there any changes?
Mr. Trottier: They're there right now.
Senator Callbeck: The only change will be that the government will determine the weight of these factors.
Mr. Trottier: No, the chair will determine weight, but the chair will start their analysis by looking at recruitment retention and then at Canada's fiscal circumstances. That will be the first lens through which they will look at the situation. If they have all the information they need within that to render a decision, they'll render a decision. If they need more information and the information is relevant to the other factors, they will move on to the other factors. We will not dictate what they will look at. We're just going to say, ``That's the sequence in which you need to look at things.''
Senator Callbeck: So who weighs these right now? Is it the chair?
Mr. Trottier: The chair has free rein on what they decide to use.
Senator Callbeck: You're saying that there isn't any change here?
Mr. Trottier: I'm sorry?
Senator Callbeck: Are you saying that the current situation is not going to change with this legislation?
Mr. Trottier: The current situation is that there is no preponderance on any factor. All factors are listed one after the other with no preponderance.
Senator Callbeck: Maybe I misunderstood. I thought that you just said the chairman now weighs them and decides which ones should have more weight than others.
Mr. Trottier: They do. They never tell us how or what they weigh, but they're of equal weight in the legislation. They're not told to give equal weight; they just say that you must consider the following factors. How the chair determines to weigh those is up to him or her in terms of saying, ``I think the external market is one that is of more importance than the internal market — internal relativity — or that recruitment retention is more important.'' That's up to them to determine.
Senator Callbeck: So the situation we have right now is not going to change with this legislation?
Mr. Trottier: The situation we have right now is going to change.
Senator Callbeck: How?
Mr. Trottier: The factors utilized are the same. The only change is the preponderance on the first two factors. Look at these first. If you have enough to make a decision, make a decision. If the information contained in the other factors is relevant, you may move to those.
Senator Callbeck: Thank you.
[Translation]
Senator Bellemare: I have a bit of trouble with this approach. If I understand correctly, currently, there are six factors and all of these factors, 148(1), 148(1)a), 148(1)b), 148(2)a), 148(2), 148(2)b), 148(2)c), and 148(2)d), are all currently on the list, but they are not considered preponderant? And what is being done is that two are being retained, and they have been renamed 148(1)a) and 148(1)b). And the first one talks about the necessity of attracting and retaining employees within the public service.
Mr. Trottier: That is right.
Senator Bellemare: We know that currently, more people are applying for jobs than there are positions available. And that is the situation for the vast majority of positions. It is therefore not necessary to look at both internal and external relativity. That is what that would mean.
It could be said that with these conditions, if we look at Canada's fiscal circumstances, given the country's economic problems, in this case, it would be justifiable to make an overall compensation offer lower than what the market would pay, for example.
Or alternatively, in certain cases, where it is hard to get public servants because the position is in the Territories or the work environment is not very attractive, in that situation, it would be justifiable to offer compensation that is much higher than internal or external relativity. But once again, in general, remoteness is always taken into account in the notion of relativity.
I have the impression that there will be problems coming to an agreement with bargaining agents if those two factors are taken into account. Also, during negotiations, the arbitrator will be invited to take certain stands, and I do not know if they will always be balanced, but let us say they will not always be satisfactory from the employees' point of view, if the employees, for their part, have both internal and external relativity in mind.
Mr. Trottier: At the end of the line, the arbitrator will have to make a decision based on all the factors taken into consideration. We want to make sure that the arbitrator keeps those two factors in mind and that they are not forgotten. Why? Because we believe that it is really the best standard. If we succeed in filling our positions, we remain competitive compared to the external market. If we are hiring, it means that people come to see us in order to work, and that they like to work for us because of compensation, benefits, and everything that comes with it. Therefore, we are competitive.
For example, as far as lawyers are concerned, we were 32 per cent beneath the Ontario market. We did not have legislation allowing us to turn to an arbitrator and say ``Mr. arbitrator, please, do not give us 32 per cent, because we have no problem with recruitment or retention.'' People come to us. They are happy with our levels of compensation, and so they come to us. Perhaps it is because they get better benefits and that they feel better working for us. They like the federal workplace, as opposed to having to work 80-hour weeks elsewhere, and having to find clients, and so on, in the private sector.
So there are reasons which are based on these types of distinctions. For us, it was very clear that recruitment and retention were the primary indicators. We wanted to make sure they were at the top of the list. It is the same with Canada's financial situation; it is important to know the state of Canada's finances to understand what is really affordable and what is not. Those are the two elements. The arbitrator will look at these facts and say: Fine, but you are nevertheless behind Ontario by 32 per cent, so I think something should be done in that regard.
This might be the rationale for the explanation. Then, add to that the fact that the arbitrator will have to provide an explanation for each factor to explain his decision.
In my opinion, there will be good decisions. These decisions will not be to the benefit of the employer, they will be good decisions, regardless of what decision is taken.
Senator Bellemare: Thank you very much for your explanations.
Senator Chaput: I do not have any questions because the gentleman answered Senator Bellemare's questions. However, sir, I would simply like to say that the intent is very laudable, but in reality, in its application, I am not so sure that things are going to play out as you described. I will wait until next year, when you come back, to ask further questions.
Mr. Trottier: That is fine, thank you.
The Chair: You have been invited to return?
We will now move on to clause 308.
[English]
Mr. Duggan: Clause 308 is an editorial amendment. Clause 309 provides that the arbitration board must, as has just been mentioned, for each of the matters for which it makes a decision, include the reasons for that decision in the award.
The Chair: You've told us before.
Mr. Duggan: Proposed subsection 149(1.1) provides that when making an award the arbitration board must consider all terms and conditions of employment and benefits provided to employees including salaries, bonuses and allowances, vacation pay and employer contributions to pension funds or plans and all forms of health plans and dental insurance plans. In the vernacular of the day, it is a total compensation approach.
Clause 310 amends the act in section 158. Proposed subsection 158.1(1) establishes a review process for the chairperson of the PSLRB and allows the chairperson to direct an arbitration board to review the award it has made where the chairperson is of the view that the award, or any part of it, is inconsistent with the requirements of section 148, as amended. Those refer to the criteria which you have just discussed.
Subsection 158.1(2) provides that either party may also make that application and request the chair to review.
Subsection 158.1(3) establishes a time frame within which the arbitration board must advise the chair as to whether it will confirm the award or amend it and provide the reasons for doing so.
Subsection 158.1(4) requires that the chairperson inform the parties, again without delay, of the decision and provide copies of the award, if amended.
Subsection 158.1 (5) stipulates for greater certainty that the arbitration board may only consider amending the award with respect to the matters that were referred to it originally.
Clause 311 replaces paragraph 160(a) of the French version and is essentially editorial in nature.
Clause 312 is amended to reflect the appropriate section reference and is essentially a consequential amendment.
Clause 313 deals with sections 165 and 166 of the act. They are replaced by, first, subsection 165(1), which provides that if a public interest commission is to consist of one member, the chairperson of the board must submit to the minister the name of the person jointly recommended by the parties. If a joint recommendation is not made, the chairperson may recommend the appointment of a particular person of his or her choosing. Second, subsection 165(2) provides that after receiving the recommendation, the minister must appoint the person recommended without delay. In this case, the minister responsible for the PSLRA or the PSLRB would make that appointment.
I should add that currently the minister and the chair make their selections from a list that is constructed through a somewhat elaborate process. This bill is designed to ensure a more efficient process.
The Chair: What is the mandate or the authority of this public interest commission?
Mr. Duggan: That's outlined in the act.
The Chair: In the act, so that hasn't changed?
Mr. Duggan: No, that hasn't, except as I mentioned with respect to the criteria and factors they must consider. Those have changed and are identical to the considerations that an arbitration board must consider.
[Translation]
Senator Bellemare: I would like to have a small clarification with regard to your questions. We are talking about the Public Interest Commission which is contained in the original act, right?
Mr. Trottier: Yes.
Senator Bellemare: Can you give me a bit of background information about this commission? When was it created? What exactly does it do?
Mr. Trottier: When the act was renewed in 2005, they simply created this entity called the Public Interest Commission. The chairs are appointed from a list which both parties have drawn up; but it seems that it is very difficult to agree on these lists. Often, the chair identifies a name and an appointment is made by the minister, based on the chair's choice.
It was created in 2005, and it is something which had not previously existed, but which is working well today. It is a commission comprised of three members, with a chair and two co-chairs, and these people are often appointed either by the employer, or by the bargaining agent.
Senator Bellemare: They will receive complaints or appeals for arbitration?
Mr. Trottier: They are only struck when a request is made. The employer or the bargaining agent will turn to the Labour Relations Commission and say, ``I would like to go to my pick, they have been chosen for me, the path forward has been determined, so I would like to get my own pick.'' At that point, the chair of the Labour Relations Commission chooses a pick by appointing a chair.
Senator Bellemare: So, these people are hired on a temporary basis?
Mr. Trottier: Yes.
[English]
Mr. Duggan: Clause 314 essentially describes how the public interest commission is constructed, the number of days necessary. It talks about within five days of the second member, because the parties nominate their individual members and they can choose a chair. That process is pretty similar to what exists currently. It's just adjusted to account for the fact that they're not choosing the members of the commission off a list.
Subsections 167(4) and (5) describe that process, and it's straightforward.
Clause 315 amends subsection 170(1), and again it's just a section reference, an editorial amendment.
Clause 316 deals with section 175 and the making of recommendations of the report and, as a consequence, the similar factors about which we just discussed with respect to arbitration boards.
Subsection 316(2) is the same reference to the Public Sector Equitable Compensation Act, just to ensure that those particular sections, when the act comes into force, continue to operate notwithstanding.
Clause 317 deals with section 176 and is amended by two new sections. Subsection 176(1.1) requires that the commission — again, as in the case of arbitration boards — must provide a recommendation for each of its recommendations.
Subsection 176(1.2) requires that when making the recommendation in its report to settle a dispute between the parties, again the commission must consider all the terms and conditions of employment on a total compensation base, in the same manner that it does in section 148.
Clause 318 deals with section 179. It expands the chairman's current authority to direct a public interest commission to reconsider and clarify or amplify its report or any part of it by providing that the chair can issue such direction when he or she is of the opinion that the commission — similar to the case of arbitration boards — in making recommendations in its report, has not properly applied the guiding factors.
Clause 319 amends subsection 182(1). It specifies that separate agencies, prior to agreeing to refer to any terms and conditions to arbitration, as has been mentioned earlier for binding arbitration, must obtain the approval of the President of the Treasury Board.
Subclause 319(2) deals with an editorial amendment in subsection 182(2).
Clause 320, paragraph 190(1)(f), amends the current provision by substituting the amended section reference.
In clause 321, it's the same thing. It's simply an editorial change.
In subclause 322(1), paragraph 194(1)(e) is an editorial amendment.
In subclause 322(2), paragraphs 194(1)(f) to (j) are replaced by deleting references again to ``essential services agreement.'' Those are essentially consequential amendments. Paragraph 194(1)(k) replaces the French version and is essentially an editorial amendment.
Subclause 322(4) deals with subsection 194(2) and amends, again, the references to ``essential services agreement.''
Subclause 323(1) deals with paragraph 196(e), an editorial amendment.
Subclause 323(2) deals with paragraphs 196(f) to (k) and replaces these paragraphs by deleting the references to ``essential services agreement.''
Subclause 323(3) is also an editorial amendment.
Clause 324 deals with section 199 and amends it by deleting again references to ``essential services agreement.''
That deals with all the sections dealing with collective bargaining. Following that, the sections deal with recourse.
Mr. Trottier: Would you like to ask questions on this section or would you like us to move to recourse?
The Chair: I would like you to move on. We have no questions. We are beginning clause 325 at page 242.
Mr. Heavens: Clause 325 takes out a limitation that's currently found in the PSLRA regarding the right to grieve certain issues and it takes out the words ``other than the Canadian Human Rights Act.'' This is to effect the change that we spoke of earlier in terms of federal public service employees using the grievance process rather than the CHRC process.
Subclause 325(2) amends PSLRA subsection 208(4) and expands the requirement for bargaining agents to support individual grievances so that any employee who belongs to a bargaining unit may only file a grievance with the approval of and representation by their bargaining agent, with the exception of matters which relate to allegations of discrimination.
Subclause 325(3) is an addition to subsection 208(8) of the PSLRA, and I referred to this earlier. It expands the time limit to file grievances relating to human rights grievances. Individual grievances relating to allegations of discrimination under Canadian Human Rights Act sections 7, 8, 10 or 14 may be filed up to one year after the last act or omission has occurred or such longer period as the Public Service Labour Relations Board considers appropriate.
Subclause 325(3) also adds subsection 208(9) and is added to provide the explicit authority to the deputy head and his or her delegate to dismiss a grievance if it's considered trivial, frivolous, vexatious or made in bad faith.
Clause 326 amends subsection 209(1) of the PSLRA and provides that any grievance which relates to discrimination may be referred to adjudication.
Subclause 326(2) replaces PSLRA subsection 209(2) and requires the bargaining agent's support for any grievance to adjudication, again with the exception of grievances that deal with discrimination.
Clause 327 repeals section 210 of the PSLRA, which provided for notice to the Canadian Human Rights Commission, as that has become redundant.
Clause 328 amends PSLRA subsection 211(1) and provides that currently in the PSLRA, grievances which deal with terminations under the employment act cannot be referred to a third party. Clause 328 modifies that so that terminations under the employment act can be referred to a third party if it relates to allegations of discrimination.
Clause 329 relates to similar types of amendments but to the concept of group grievances. So clause 329 replaces subsection 215(4), which provides that a bargaining agent may not present a group grievance if there is another procedure available under any other act.
Clause 330 repeals section 217, which eliminates the need and requirement to notify the Canadian Human Rights Commission.
Clause 331 relates to the concept of policy grievances. As I mentioned earlier, it modifies that a policy grievance in subsection 220(1) has been redefined to allow the employer and/or a bargaining agent who are bound by an arbitral award or collective agreement to file a policy grievance when either of them seeks to enforce an obligation alleged to arise out of the collective agreement or arbitral award, other than an obligation the enforcement of which may be the subject of an individual grievance by an employee in that bargaining unit.
[Translation]
Senator Chaput: If I understand correctly, when there are one or more complaints dealing with acts of discrimination, this bill takes away the right of the Canadian Human Rights Commission to study the issue? It is removed completely.
Mr. Heavens: Yes, that is right.
Senator Chaput: The commission no longer has the right to study the issue. In addition, this bill takes away a public servant's right to go directly to the Canadian Human Rights Commission. Is the commission excluded?
[English]
Mr. Heavens: That's correct. You will see further down that there's amendments to the CHRA as well, the Human Rights Act, to effect that change.
[Translation]
Senator Chaput: Why are you separating this from the Canadian Human Rights Commission?
[English]
Mr. Heavens: As I mentioned earlier, currently employees can take one or two routes to deal with allegations of discrimination. They could file grievances under the Labour Relations Act.
Senator Chaput: Right.
Mr. Heavens: Actually, there are three routes. They can file complaints under the Public Service Employment Act or they can file complaints under the Canadian Human Rights Act. They can do all three of those. There's overlap. People can file grievances and complaints under those different acts on the same issue. There's duplication and overlap.
The proposals eliminate one of those mechanisms, and that's the complaint process contained under the CHRA, which of course involves the Canadian Human Rights Commission.
As an offset to that, and in order to protect the rights contained under the Human Rights Act, some of the provisions of that process under the Human Rights Act have been brought into the Public Service Labour Relations Act and the Public Service Employment Act.
The Chair: We're at a stage where we have reached our designated time. We seem to be flowing along fairly nicely. I'm not sure how much longer it will take us to get to the end of this particular division.
I should ask honourable colleagues, do you wish to stay or have you got travel arrangements? We could stay for another 15 minutes to see how things go?
We're not going to get to Division 18 today. We had hoped we would, but we're not. We'll do that Tuesday morning at 9:30. I don't know if that's the same panel or not.
Mr. Heavens: Yes.
The Chair: If it's the same panel, then we could have you finish and do both of those on Tuesday morning, if that would be more convenient for honourable senators.
Why don't we do that? Because we're not going to finish, and we do know we will be having you back at 9:30, room 2 Victoria building, which is our normal meeting room. We will be meeting on Tuesday morning to finish up Division 17 that we're working on now, just to complete those clauses. Maybe by that time you might have this table prepared for us and we could also finish up any outstanding questions we may have with respect to what we've been dealing with today in relation to Division 17; then we would go right on to Division 18, which should flow fairly nicely because it's the same concept. It's consequential to the other work that's being done. Does that sound okay, honourable senators?
Hon. Senators: Agreed.
With that, I will adjourn this meeting to be reconvened on notice from the chair.
(The committee adjourned.)