Proceedings of the Standing Senate Committee on
National Finance
Issue 2 - Evidence - November 26, 2013 (morning meeting)
OTTAWA, Tuesday, November 26, 2013
The Standing Senate Committee on National Finance met this day at 9:33 a.m. to study 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 morning we continue our study 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 seventh meeting, if not the eighth — it depends on how you count — on the subject matter of Bill C-4. This morning we will begin where we left off on Thursday of last week: Part 3, Division 17, clause 331, which can be found at page 244 of the bill.
From Justice Canada, we welcome back Dora Benbaruk, Director and General Counsel, Treasury Board Secretariat Legal Services. Good morning and thank you for coming back.
From the Compensation and Labour Relations Sector of the Treasury Board of Canada Secretariat, we welcome back Carl Trottier, Acting Assistant Deputy Minister; Dennis Duggan, Senior Policy Analyst; and Drew Heavens, Senior Director.
Before we start, I want to let honourable senators know that we talked last day about a chart that would make things a lot easier if the various changes to this Part 17, which is quite complicated, were outlined in a chart. That chart has been prepared and circulated.
Perhaps we can start with Mr. Trottier explaining the chart. It's probably self-evident, but we would appreciate you telling us just how it's organized.
Carl Trottier, Acting Assistant Deputy Minister, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: Absolutely. Thank you very much for that.
I would like to begin by thanking the senators for having asked for the chart because preparing it was actually useful for us, as well. Message well taken, and we're going to follow up with that in the future if we ever have the pleasure of coming here again.
I would also like to thank the staff who did this over their weekend. It doesn't look like a lot, but it was a lot of work. They're with us here today. I wanted to thank them for that.
Senator Hervieux-Payette: I knew that you had to work overtime, so thank you.
The Chair: Thank you very much for helping us with this.
Mr. Trottier: I would like to give you the highlights of the chart, how it works and operates. It is a bit self-evident.
The chart contains all the key changes found in the legislation in Division 17. They are in sequential order. However, they have been regrouped by, for example, essential services. We put them all together because we thought senators would like to know every change that is made with regard to essential services. We can go through them and you will see them in sequence — all for essential services.
The left-hand column is the proposed change that we are putting forward. The middle column is how the legislation currently reads in the Public Service Labour Relations Act, and in the right-hand column are the explanations of the changes. So when we're going through them, if you want to revert to this chart as we're going through, just identify the clause number that's in the left-hand column at the top — that will bring you to the exact right clause, and then you'll have the ``before,'' the ``after'' and the reason why. We're going to be highlighting the reason why today, as well.
Is that sufficient for an understanding of the chart?
The Chair: That's very helpful.
Mr. Trottier: I believe you have it in both official languages, as well.
The Chair: These were circulated to all senators in their offices, but unfortunately we were off at another meeting and most of us did not get a chance to study it last evening. But we will start today, and we'll be ready to ask you more questions on it in the next day or so.
Mr. Trottier: Absolutely. So that's it for the chart.
You mentioned that we had stopped at clause 331. There is a natural break in the presentation that begins at clause 325, which is the beginning of the changes to the recourse portion of the legislation. I would propose that we take a little step backwards and begin at clause 325 so that you have a nice flow of the changes on the resource. Is that agreeable?
The Chair: That's perfect, thank you.
Mr. Trottier: I will ask Drew Heavens to walk you through it and answer the questions you might have.
Drew Heavens, Senior Director, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: Good morning, everyone. The first few clauses we did go over last time, but I will go over them briefly again. The remaining changes in Division 17 relate to the employee recourse system and modifications of some of the systems that we current have in place.
Clause 325 removes a limitation that currently exists in the Public Service Labour Relations Act regarding grievances. The current limitation — ``. . . other than the Canadian Human Rights Act'' — is being deleted, and that relates to the change that I spoke to last time we were together; that will provide for employees to deal with their allegations of discrimination only through the grievance process as opposed to both the grievance process and the Canadian Human Rights Act. So this is a consequential change to that policy change.
The Chair: The recourse at 325 is found on your chart at page 16.
Mr. Heavens: We begin there.
The Chair: Are you going to continue, Mr. Heavens?
Mr. Heavens: Yes, I will.
The Chair: Have you finished with 325?
Mr. Heavens: No, I haven't.
The Chair: I'll wait for you to finish and we will pick up questions before you go on to 326.
Mr. Heavens: Subclause 325(2) is an expansion of the requirement for bargaining agents to support grievances for their members. Currently the system — and you'll see it there at subsection 208(4) — requires a bargaining agent to support an individual grievance only if it relates to a collective agreement issue. The modification contained in subclause 325(2) would require the bargaining agent to support and represent a member on all individual grievances, with the exception of discrimination issues.
Subclause 325(3) expands the time limit to file grievances in cases which relate to discrimination. There are time frames currently found in collective agreements and the Public Service Labour Relations Board Regulations which stipulate the time frames for a grievance process. Proposed subsection 208(8) will extend the time limit, regardless of those other documents for issues relating to human rights. The reason for that is to ensure that whatever was in the Canadian Human Rights Act has been incorporated into the labour relations act as it relates to discrimination grievances.
In addition, subclause 325(3) adds subsection 208(9), which provides explicit authority to a deputy head, or his or her delegate, to dismiss a grievance at the lower levels of the process if it is considered to be trivial, frivolous and vexatious, or made in bad faith.
The Chair: And the deputy minister is making that judgment.
Mr. Heavens: That's correct, at the lower levels. The tribunals already have that power so it's providing the explicit to the deputy heads in that regard.
Senator Callbeck: So there's no —
Mr. Heavens: If the deputy head were to dismiss a grievance for those reasons or for any other reasons and if it's a matter that could be referred to a third party, that could be challenged before the third party, the grievance adjudicator.
If there are no questions I'll continue on to clause 326.
The Chair: I think we have a question.
[Translation]
Senator Hervieux-Payette: Do you think this makes a big difference? I thought the bargaining agent always had to represent the employee, except in the case of complaints under the Canadian Human Rights Act.
Are there any major changes? I read the document and I do not see a lot of changes. Can you provide more clarification? Am I right in thinking that this was the way things used to work and that here it is stated more specifically?
[English]
Mr. Heavens: Yes, to some extent. There are two categories of grievances in the labour relations act. One relates to collective agreements interpretation and the other generally relates to discipline, terminations, demotions and the like. For that latter category, as long as the labour relations act has been in place, and the Public Service Staff Relations Act, they never require the support of the union for those types of grievances. Generally speaking, the union has a duty to represent their members. They are required to look at each grievance and determine if it's in the best interests of the union as a whole to support a grievance. But in these types of grievances, the discipline and terminations, they were not required to support their member. Under the proposal, they will be required to, and that's very similar to just about every other jurisdiction in the unionized environment across Canada where the union has carriage of the grievances of its members. The rationale or point is to ensure that the union is playing its challenge function in determining which grievances are worthy of going forward.
[Translation]
Senator Hervieux-Payette: I get the impression they will be better protected as well.
You say ``within one year after the last of the acts that gave rise to the grievance''; that means they can come back for up to 12 months after the incident? They are not required to do it the next morning?
Mr. Heavens: Yes, precisely, and the same is currently true of the Human Rights Act.
[English]
The Chair: As I understand it, Mr. Heavens, to get before a tribunal you have two checks as an individual employee. One is the union, and if the union decides they don't want it go forward, you're out of luck. Number two is the employer, if it falls under subsections (8) or (9). So there are two checks, two hurdles that an individual has to overcome in order to get this grievance heard.
Mr. Heavens: You're correct with the first hurdle in terms of the bargaining agent determining whether they'll want to support it from the outset and throughout the process.
In terms of the deputy head or the management side, they are the ones who respond to the grievance at the lower levels, so it really depends on whether or not the employee is satisfied with the response they get at those lower levels.
The Chair: So the grievance is explained, you have an opportunity to talk about it, and the deputy head will then say, ``Well, I think this is quite frivolous, and I'm sure you can work this out another way.''
Mr. Heavens: Right. In essence, that right already exists. If there is no merit to a grievance, a deputy head can deny it in any event. This is explicitly putting that power in there so it's the same as the tribunals itself. Through the grievance process at the lower levels, there are two or three levels of increasingly senior management that hear these things. The union and the employee have a chance to make their case and the deputy head's delegate makes a decision on that.
The Chair: The idea is the individual employee will not be able to go to the Canadian Human Rights Tribunal.
Mr. Heavens: In relation to the policy change on human rights cases, that's correct, but it will heard by the public service labour relations employment board.
The Chair: If the deputy head doesn't think it's frivolous.
Mr. Heavens: Even if they do. If the deputy head denies a grievance and it's a matter that can be referred to adjudication, then it would be heard by the third party, which is the public service labour relations employment board.
The Chair: Notwithstanding the decision of the deputy head?
Mr. Heavens: That's correct.
The Chair: That's an important clarification.
Mr. Heavens: To clarify even more, in terms of discrimination grievances, the union does not have to support their member in those cases, so the employee has full carriage of those types of grievances. They have full decision-making power in terms of getting it before a third party, depending on whether or not they are satisfied with the responses they get through the process.
The Chair: Thank you. We are going on to the next one then.
Mr. Heavens: Some of these are related. Subclause 326(1) provides any grievance which alleges discrimination as set out in the Canadian Human Rights Act in those various sections can be referred to adjudication. That is the point I just made: Any grievance dealing with discrimination can be referred to a third party.
Subclause 326(2) requires the bargaining agent's support to refer a case to adjudication. That's parallel to their requiring support for every grievance filed. They are also required to support every grievance referred to adjudication, with the exception of human rights cases.
Clause 327 repeals a similar section which eliminates the limitation on filing a group grievance. I believe I mentioned last time there are three types of grievances contained in the labour relations act. There are individual grievances, group grievances and policy grievances, so some of these changes have to be made through each type of those grievances to be consistent. Clause 327 repeals section 210 which provided for notice to the Canadian Human Rights Commission.
I'm sorry, I misread that. It relates to the Canadian Human Rights Commission's involvement at the third party. The Human Rights Commission won't be involved in cases dealing with federal public servants' grievances; not at all.
[Translation]
Senator Bellemare: Can you explain to us what a policy grievance is?
[English]
Mr. Heavens: I mentioned the three categories. Group is basically one grievance which is similar among a number of people, so they group them together. The policy grievance actually relates to an interpretation or application, generally speaking, of a collective agreement. It's a wider type of issue that can be filed either by the employer or the union.
When I get to it, you'll see that the proposed change would actually clarify precisely what the policy grievance is meant to do and that it's meant to be mutually exclusive of the other two types.
[Translation]
Senator Bellemare: I see. So it affects a group of individuals, no one in particular, and it can arise even if no grievance has been filed. For example, someone realizes that something has been done about pensions, and since that is not how the union had interpreted it, that person files a grievance.
Mr. Heavens: Yes, or even the employer, but that does not happen often.
Senator Bellemare: Thank you.
[English]
Mr. Heavens: Clause 328 deals with PSLRA section 211. This, again, is to bring in line some of the human rights protections that employees currently have. The current limitation in PSLRA section 211 would prohibit any termination case going before the PSLRB if it related to a termination under the employment act; for example, cases where employees are rejected or terminated during their probation periods. Those cannot normally be heard by an adjudicator of the PSLRB. Section 211 is modified so those cases can be heard by an adjudicator if they are claiming or alleging that their termination during the probation period was related to discrimination.
Senator Chaput: Could I have an example, please, of what you just described?
Mr. Heavens: Under the current regime, if an employee is terminated during their probation period — when starting with the public service, most employees have a one-year probationary period, generally speaking. If they're terminated during that period, they have the right to grieve and challenge that decision to terminate their employment, but they do not have the right to take that to a third party. That's specifically found in section 211 of the labour relations act, which limits the matters that can currently be referred to the PSLRB through a grievance.
The modification here maintains the general principle that probationary employees who are terminated during their probation period still cannot have their case heard before a third party, except in those situations where discrimination is alleged. Otherwise, there would have been a gap between the current protections under the Human Rights Act and the revised act. It's to ensure that if someone is alleging they were terminated during probation because of discrimination issues, they can have that issue heard by a third party.
Senator Chaput: It takes care of the gap?
Mr. Heavens: That's correct. It ensures there is no gap.
Senator Callbeck: It seems here that we're cutting back on the jurisdiction of the Human Rights Commission. Can you explain why?
Mr. Heavens: I'll explain the concept. Currently, employees have the opportunity to challenge issues of discrimination through various venues. They can file a complaint with the Human Rights Commission, which may or may not be referred to the Human Rights Tribunal. They can file grievances, which may or may not be referred to a third party through the labour relations act. They can also file staffing complaints if it relates to a staffing action, which may or may not be able to be referred to the staffing tribunal.
The provisions on the table in relation to human rights eliminate the Human Rights Commission's involvement but maintain the fact that they can still challenge discrimination issues. So any discrimination issues under the Human Rights Act can still be challenged; they're challenged through the labour relations act, which is currently the case.
Adjudicators at the PSLRB and tribunal members of the staffing tribunal currently hear any issues dealing with the Human Rights Act as part of their function. They already have the expertise in that area. It is not an expertise that's found only at the Human Rights Tribunal, and in fact most labour arbitrators who deal with grievances under various regimes have not only the right but the obligation to interpret and apply human rights legislation across the country.
It's merely eliminating one distinct stream of recourse in the view of streamlining so that the cases don't bounce back and forth between the recourse streams and are not heard multiple times through multiple fora.
[Translation]
Senator Hervieux-Payette: Let us say I accept your argument that people are used to this and are familiar with these issues. Do you have any satisfactory resources in the existing labour relations stream recourse, as opposed to the human rights stream? How long does it take to get an answer? I had the impression you cut resources not long ago as part of the staff budget cuts.
[English]
Mr. Heavens: Currently, the system that's in place is resourced. If you think about it theoretically, it's resourced for both because anybody can file grievances relating to discrimination, so there's an infrastructure in place there already within the department and within the PSLRB and the PSST. They may also file a complaint under the Human Rights Act.
So with the infrastructure that's in place at those organizations, they actually have the resources available to deal with that. That's not going to change. What will change is where the actual functions will be carried out, which will be more within the department and through the PSLRB rather than the CHRC and CHRT.
Senator Hervieux-Payette: If you spoke English or French without all these acronyms, I would understand, but don't continue like this because I'm totally lost. You can say ``ABCD'' and the rest of the alphabet, but I do not know what you're talking about with all these acronyms.
My question was very specific: Do you have the resources to deal with these questions within the department? If you are in fact dealing with a broader mandate, will you have the resources to do so in a reasonable time frame?
Mr. Heavens: The resources that are required and the expertise or the capacity are already within the departments because they already deal with these types of issues on a regular basis through the labour relations act. The marginal increase that may actually occur because some of the work will be shifted from the Human Rights Commission to the departments isn't that great because the departments are already involved in each and every complaint at the Human Rights Commission.
Senator Hervieux-Payette: With respect to the time frame, give me an example of a civil servant who files in one place or the other. I mean, I would take the shortcut. I would go to the body that can make a decision within a year because very often this process is long.
Mr. Heavens: I can respond by saying that the time frames for the grievance process are outlined in collective agreements and regulations. There are no set time frames in the Human Rights Act —
Senator Hervieux-Payette: That's why I'm asking.
Mr. Heavens: — for the processing of the complaint. I don't think I can speak for the CHRC or CHRT in terms of the time frames to actually deal with the cases. All I can say is the grievance process is well set out in collective agreements already.
Senator Hervieux-Payette: Thank you.
Mr. Heavens: Clause 329 modifies PSLRA subsection 215(4) and relates to the group grievance that I referred to earlier.
Clause 330 repeals section 217, which also removes the opportunity for the Human Rights Commission to be involved in group grievances as it did for individual grievances.
Clause 331 relates to the policy grievance process, so we will shift gears a little bit to that process. Policy grievance has been redefined to allow the employer and a bargaining agent who are bound by a collective agreement or arbitral award to file a policy grievance when either of them seeks to enforce an obligation alleged to arise out of that agreement, other than an obligation that could be the subject of an individual grievance of an employee in the bargaining unit to which the agreement applies.
Proposed subsection 220(2) provides that neither the employee nor the bargaining agent may present a policy grievance if there is another administrative procedure under any act of Parliament.
Clause 332 is aligned with the other ones, which repeals the requirement or the opportunity for the Human Rights Commission to be involved with policy grievances with a third party.
The Chair: Can you think of a logical area where there might be another opportunity for the grievance to go for administrative procedure under 220(2)?
Mr. Heavens: The classic example, which has been changed over time, is a staffing action where there is a recourse process under the staffing act. If there is a recourse under the staffing act, that is not something that can be grieved under the labour relations act. It is to avoid duplication of processes.
The Chair: Thank you.
Mr. Heavens: Clause 333 deals with an adjudicator's jurisdiction in relation to discrimination issues, and it expands the adjudicator's remedial powers so it is more in line with what is currently found in the Human Rights Act. Again, this is to ensure there is no gap between the current protection and the new protection.
Clause 333(2) is editorial in the sense that it adds the words ``trivial'' and ``bad faith'' to the reasons an adjudicator can summarily dismiss a grievance. So trivial, bad faith and vexatious — I'm forgetting the other one. There are four categories for which a case can be summarily dismissed, and those are consistent throughout the legislation. There was an inconsistency before.
Clause 334 replaces PSLRA section 232, and this relates to the adjudicator's remedial power in relation to policy grievances. It states that an adjudicator in such a policy grievance is limited to declaring that the collective agreement was contravened requiring the bargaining agent or the employer to interpret the collective agreement in a certain specified manner. Declaring the correct interpretation of the collective agreement or arbitrary award without it having retroactive effect, this corresponds to the other change in section 220, which deals with policy grievances, and again it's to ensure that the concept of a policy grievance is exclusive of individual and group grievances.
Clause 335 replaces section 235 of the current labour relations act. I think I can say in a nutshell that it requires that the parties themselves, in certain circumstances, whether it be the bargaining agent, the deputy head or, more generally, the employer, to share the expenses of an adjudication for grievances.
You'll see that the section is quite long as it divides up different types of grievances. So the grievances that relate directly to a collective agreement, the costs or expenses or those adjudication proceedings would be borne by the employer and the bargaining agent.
If it relates to a matter for which the deputy head has authority, and this is a grievance that relates to terminations or demotions, those types of things, the expenses of those adjudications will be shared equally between the deputy head and the bargaining agent.
There are also provisions in there to ensure that if an employee is not part of a bargaining unit, they will not bear the expense of those cases. For grievance adjudications that relate to discrimination, the parties will not bear those costs as well because under the Human Rights Act the parties do not bear the cost of hearings before the Human Rights Tribunal.
The Chair: Since the bargaining unit and the bargaining agent have to be involved and have to let this alleged grievance move along, if the collective bargaining unit happens to be low on money at the particular time, that would be a reason for not moving this along, since the bargaining unit knows they will have to pay half the cost.
Mr. Heavens: Right, which is very similar to every other union in Canada. When they are looking at an individual grievance, that's one of the factors they have to take into account when determining whether or not to pursue a grievance and how far to pursue it. Under our regime, I believe we are the only regime where the union doesn't pay for these particular expenses.
The Chair: So that concept is being introduced here.
Mr. Heavens: That's correct.
Senator Hervieux-Payette: I would like to know the scope of the cost. What are we talking about? Thousands? Tens of thousands? Who is paid what? The employee is paying his dues to the union, and the union has a budget, but where are the costs incurred? They seem to be all working for the government.
Mr. Heavens: The costs are incurred at the PSLRB level, at the Labour Relations Board. They have the grievance adjudicators, the staff on salary, so those are the expenses being talked about here that will be shared between the parties. It will be up to the chairperson or the executive director of the labour board to determine how to charge the parties for those hearings.
Senator Hervieux-Payette: Who is financing the labour board in other circumstances?
Mr. Heavens: Currently it's done through government appropriations.
Senator Hervieux-Payette: So in this case the union will pay the government the costs for the employee, and do you mean the labour board will send another bill to the Department of Labour?
Mr. Heavens: They will send a bill to either the Treasury Board, as the employer, or the department of the employee whose grievance it was, so the parties involved in the grievance will pay for those costs. They will see those come out of their own budget.
A manager who has terminated an employee, or a department that has terminated an employee, currently doesn't see any of the expenses to have that case heard at adjudication. They will, as will the union.
Senator Hervieux-Payette: Mr. Chair, in studying other budgets and items later on, we have to know if it doesn't create more paperwork to claim small amounts of money than what has worked before. I have reservations about this cost sharing because we're not talking about a huge amount of money.
I know from our own Senate organization that sometimes it costs more to collect our own money than the money we are talking about. I think this has to be watched very carefully in terms of the time, because there is time involved — somebody to prepare the invoice, and the management at the Treasury Board and so on. I am a little bit preoccupied.
The Chair: Well, you make a good point, but fee for service is a reasonable concept. I guess the difficulty is that normally there would be a choice. In order to keep the cost of the service down, if you have a choice, you go to the one that provides the best service at the best price.
In this instance, neither party has a choice. They have to go here, and that tribunal will then determine the fees that will be charged.
Is there any regulatory control over what they could charge for adjudication?
Dora Benbaruk, Director and General Counsel, Treasury Board Secretariat Legal Services, Department of Justice Canada: One thing that seems to go hand in hand is the union support of the grievance; so this is where the union has a hard decision to make. Now that the union is paying half of the grievances that concern it, according to the law, then there will be some check on how many go up all the way to the Public Service Labour Relations Board.
The Chair: That I understand, but how much they have to pay or may have to pay if they go ahead is determined entirely by the provider of the service, and there is no choice. They have to go there and they have to pay whatever they're told they have to pay.
I can see some difficulties there, unless there is some limit on this, or there is competition on who handles the grievance.
Mr. Trottier: I wouldn't be able to tell you how much they would have to pay, but I would be able to tell you there is no planned diversion or increase or decrease in the rates of pay. A certain stability has been built into the system over the years.
Appropriation is on cost recovery. That's their business; that's how they fund themselves, partially, through this system.
As Ms. Benbaruk was mentioning, it's also meant to make sure that what goes to the board is a serious issue that requires the attention of this board, which is a board with limited capacity, and it would probably ensure that the timelines and the time frames in the future are of a better nature and more timely.
The Chair: Doesn't it make sense, Mr. Trottier, that the collective bargaining unit would know how much it will cost if they make the decision to go ahead with the grievance and support the employee, for roughly how much, instead of signing a blank cheque and saying, ``Yes, we're going ahead and it doesn't matter how much it costs''?
Mr. Heavens: The authority to determine the actual amount and how it is divided up is left with the chair of the labour board. It's not in the legislation, but it's anticipated that some type of schedule or tariff would be set by the chairperson so that the parties would be aware, whether it would be on a per diem basis, or what factors would be taken into account so they are not blindsided with a huge bill at the end.
The Chair: That's what I was looking for: There will be some regulatory limitations.
Mr. Heavens: Right.
The Chair: That's helpful.
Is there anything flowing from that line of questioning? We will move on, then.
Mr. Heavens: I think I finished clause 335.
Clause 336 is merely an editorial amendment.
Subclause 336(2) amends the regulatory powers of the labour board to extend time frames of grievances, provide for extensions of —
Senator Hervieux-Payette: It goes from 335 to 340 in what was given to us.
Mr. Heavens: I believe the chart actually encompasses the key changes. Some of them are more minor in relation to the others. Editorial-type comments haven't been included in the chart.
The Chair: The good news is there is a clause 336 in the act itself.
Mr. Heavens: There is.
Senator Hervieux-Payette: Oh, I'm sorry. We need to know that we start at 340 after 335.
Mr. Trottier: When I opened up earlier, I did say that they were the key changes found in there. When it was editorial, we didn't include them. Otherwise, you would have had a very thick document.
Senator Hervieux-Payette: When you specify, we understand.
Mr. Heavens: If the committee would prefer, I could stick with the chart. If there are any other questions, we could take it from there.
The Chair: I would prefer that you continue the way you have been going. I don't want you jumping over clauses of the act and we will have to say, ``Oh, that's editorial; it must be because Mr. Heavens didn't tell us anything about it.''
Mr. Heavens: I will try to make a link. If it's not in the chart, I will mention it and that way you will know.
I was dealing with clause 336, which I understand is not in the chart. That is a modification to the regulatory powers of the labour board, which will provide it the authority to extend the time frames for grievances in circumstances that the board considers to be exceptional.
Clause 337, which is also not in the chart, relates to a change that Mr. Trottier mentioned earlier on, and that is the repeal of section 53 of the Public Service Labour Relations Act, which required an advisory board to be created with respect to the compensation analysis and research services of the chairperson of the board.
The Chair: Clause 336 is putting a limitation on extensions of time. Was there a concern in the past, or an abuse of extensions of time, that you're trying to control? What is the nature of the problem?
Mr. Heavens: The problem or objective of that modification is to ensure that the time frames of grievances aren't extended unnecessarily. It's to shorten the beginning-to-end process itself.
The Chair: It's a view of the policy-makers that they have been extended too regularly?
Mr. Heavens: And the processes were taking too long.
The Chair: Thank you.
Mr. Heavens: Clause 338 is a transitional provision and defines specific terms that will apply with respect to the transitional clauses. Again, these aren't in the chart itself. It relates to consequential amendments relating to the Public Service Equitable Compensation Act and other changes in the Public Service Labour Relations Act.
Clause 339, not contained in the chart, provides transitional measures from the application of the current provisions in Part 2 of the act to the application of the amended Part 2 provisions of clauses 325 to 337 of the bill.
We will return to the chart now with clause 340. Clause 340 amends the Canadian Human Rights Act, and this relates to the policy change I mentioned earlier. It removes the authority of the Canadian Human Rights Commission to deal with a complaint submitted by an employee as defined under the Public Service Labour Relations Act against the employer that alleges that the employer has engaged in a discriminatory practice pursuant to sections 7, 8, 10 or 14 of the Canadian Human Rights Act.
[Translation]
Senator Chaput: I asked a question at the last meeting and I am going to ask it again. Why have the employees and the commission been stripped of these actions, these rights? Why has this change been made?
[English]
Mr. Heavens: To answer very succinctly, it's to eliminate duplication in the processes. Right now the same issue can be challenged under the Public Service Labour Relations Act and the Canadian Human Rights Act. The change will require that it be challenged through the Public Service Labour Relations Act.
[Translation]
Senator Chaput: Was the commission consulted? Was the issue discussed with the commission before the change was made?
[English]
Mr. Heavens: Not that I'm aware of.
[Translation]
Senator Bellemare: I understand that duplication should be eliminated. Why was the decision made to do that through the Labour Relations Board rather than under the Canadian Human Rights Act? That is one of the problems. Earlier we saw a clause that stated that the Labour Relations Board could find that a grievance was frivolous or unfounded. Does that right apply to a human rights grievance?
[English]
Mr. Heavens: I will answer the second part of your question first.
In terms of the authority to dismiss a grievance if it's frivolous or vexatious, that authority currently exists in the Canadian Human Rights Act, as well, for the Canadian Human Rights Tribunal. So there has been no change there.
The first part of your question dealt with the notion that if we're trying to avoid duplication, why was the Public Service Labour Relations Act process the chosen process. It's important to keep in mind that rights haven't been taken away here; they maintain the same protection and the same rights that they currently have in terms of what's contained in those two acts. The Public Service Labour Relations Act is the main document that relates to the union management relations in the government. The grievance process itself is already extremely broad, and it already deals with issues of discrimination.
[Translation]
Senator Bellemare: That is the practical side of things.
Mr. Heavens: Yes.
[English]
Clause 341 again provides transitional measures from the application of the current provisions in the Canadian Human Rights Act to the application of the amended act.
Clauses 342 to 347, which are not contained in the chart, are also transitional provisions relating to the Public Service Employment Act involving the right of an employee to make a complaint under section 77 or 78 of the act.
We will get into changes to the Public Service Employment Act. Maybe just to start out in terms of context, employees currently under that employment act have a right to complain about certain staffing actions if they believe the deputy head has abused their authority in that action. Those provisions are found in the Public Service Employment Act, and the Public Service Staffing Tribunal is currently mandated to hear and dispose of those complaints.
Minor changes to the employment act recourse processes are proposed, which I will deal with now. Clause 348 replaces subsections 64(1) and (2) of the Public Service Employment Act. It clarifies which process an employee can use if they wish to challenge management's decision in certain circumstances of layoff.
The system currently in place is that if a manager is downsizing a unit — they are declaring at least more than one person but not all of the people in a certain work unit or part of the organization — they are required to determine who those people are by looking at the merits of the individuals. A formal process is undertaken, and that is contained under the Public Service Employment Act. We refer to it as the selection for retention or layoff process, but it only applies in those situations; merit is only applicable in determining who will be laid off if one or more of the individuals of the work unit are declared surplus.
[Translation]
Senator Bellemare: Seniority is generally an important rule for the unions. Did seniority previously count, and how do you think the unions will appreciate this new way of doing things? Perhaps it is the same as before?
Mr. Heavens: Yes, it is the same as before.
[English]
The concept of seniority is not a concept that has any — or very little — application within the context of the federal public service. The selection of employees is based entirely on merit under the Public Service Employment Act, so the change I just talked about does not change the process currently in place. The only change being made is about which venue someone can complain to; it is clarifying that.
[Translation]
Senator Bellemare: I have another question related to that and it concerns the issue of merit. How is merit evaluated? Is there an annual evaluation? Is it based on a formal process involving criteria, or is it a bit less formal?
[English]
Mr. Heavens: You're into the world of the Public Service Commission rather than Treasury Board as employer, but they have various policies and processes in place to establish and evaluate merit through the selection processes that are being carried out.
[Translation]
Senator Bellemare: So there are procedures involving criteria. It is not just an evaluation by an immediate supervisor who might say, ``I don't like him,'' or —
Mr. Trottier: There is a more elaborate structure for determining merit at the time of hiring.
[English]
The Chair: We have the Public Service Commission before our committee from time to time and you may want to keep that idea.
[Translation]
Keep that question for the commission.
Senator Hervieux-Payette: My colleague in fact previously asked the question, but, generally speaking, there is not only an evaluation; there is also a meeting with the employee concerning that evaluation. In any serious enterprise, something the government must be, this is not done without the employee's knowledge, but rather with the employee. Supervisor-employee meetings are held year after year, at least once a year. Together they discuss the employee's job description and evaluation, and the resulting document is added to the employee's file. Is that this procedure?
Mr. Trottier: In fact there are two procedures. The procedure at the time of hiring really focuses on merit, as the Public Service Commission describes it, and the structure and criteria that are in place on the basis of which the government says, ``Yes, we will hire you.'' Then there is performance, involving what you referred to, the job description, together with the objectives cited or identified and the measure for determining whether the employee has met requirements. That is what performance measurement really is. There are two things. Both are evaluated, except that the merit evaluation simply occurs at the time of hiring, when the employer says, ``Yes, we are hiring based on merit.''
Senator Hervieux-Payette: However, that word was not used; it was you who talked about ``merit'' earlier.
Mr. Trottier: Yes.
Senator Hervieux-Payette: In any case, it means the same thing: that, when you achieve objectives, you normally still merit your job. The evaluation in which the employee takes part focuses on results. Every year, objectives are set and an evaluation is conducted to determine whether the employee's performance met those objectives. Consequently, there should be nothing purely arbitrary about this situation. If it is determined at the time of the evaluation that corrective action must be taken, the employee must be advised of the fact and reassessed the following year.
Mr. Trottier: Precisely.
Senator Hervieux-Payette: All right, thank you.
[English]
Senator Callbeck: I think I heard you say that in this clause, the way government deals with downsizing is not changing.
Mr. Heavens: That's correct.
The Chair: Moving right along.
Mr. Heavens: Clause 349 relates to the clause that I just spoke about and this is where the clarification to recourse rights comes in. It replaces subsections 65(1) and (2) of the Public Service Employment Act and clarifies which process is used if somebody wishes to challenge their layoff. In the current structure, or current regime, there is ambiguity as to whether they should be filing a staffing complaint or a grievance under the Public Service Labour Relations Act.
This was meant to clarify the terminology used in the employment act, so it becomes very clear that the only time somebody can challenge a layoff to the Public Service Staffing Tribunal or through a staffing complaint is in those situations which I described where an assessment of merit has to be done in order to determine who will be laid off. In other circumstances, if it's just for a one-off — as a manager I'm determining that I no longer need this unique position — that a person can challenge the decision, but it has nothing to do with merit. I'm making that decision based on my organization and the type of work I need to be done. They can challenge the decision through a grievance, so this change clarifies which process is used because there was some ambiguity about that in the current regime.
Subclause 349(2) deals with the remedial powers of the Public Service Staffing Tribunal, and it's to ensure they have very similar powers to what's currently contained for the Canadian Human Rights Tribunal under the Canadian Human Rights Act. That's similar to the modification made in relation to grievances. The same remedial powers in terms of human rights have been made for staffing complaints as well.
To make it clear, clause 350 adds after section 76 of the Public Service Employment Act that the tribunal has the appropriate remedial authority as found in the Canadian Human Rights Act for situations where a complaint of discriminatory practice is substantiated.
Clause 351 replaces sections 77 to 79 of the Public Service Employment Act, and it's to clarify in certain circumstances what an employee can complain about in a selection process.
If a candidate has been deemed to be unsuccessful through the selection process, they have a right to complain about that but only as it relates to them. They can complain or allege that the deputy head abused the authority in assessing them, but they cannot challenge the results of the selection process in relation to others. Under the current process, somebody who is deemed unqualified can challenge the appointment of others. This has resulted in situations where they may pursue a staffing complaint all the way through, and even if there was found to be a flaw in this process, the individual himself or herself would not actually gain any benefit because at the end of the day they are still deemed unqualified. So it's merely to clarify that in cases where you are found unqualified, there are recourses but they are in relation to you as opposed to others.
There is an editorial change to clause 352.
Clause 353 replaces the current sections 81 and 82 of the Public Service Employment Act. If you are following along in the chart, it's at page 28. This amendment defines the corrective action that may be taken with respect to staffing complaints that are substantiated under sections 77 or 78. This is to incorporate the concept of human rights damages. It's adding subsection 81(2) in relation to the human rights remedies.
The Chair: What commission are you talking about?
Mr. Heavens: When we refer to the commission in the Public Service Employment Act, it's the Public Service Commission as the staffing authority.
[Translation]
Senator Hervieux-Payette: Could we have an example of that? I am not comfortable with the way this is written: ``to revoke the appointment or not to make the appointment,'' depending on the corrective action it considers appropriate or the —
Give me an example of an employee who would go through that. If the complaint is founded, the tribunal may order the commission to revoke the appointment.
Why would it be revoked if we have our rights? I do not understand. If I am appointed director somewhere, who would appeal that? Would the government appeal to have the appointment revoked?
Mr. Heavens: No, it would be another employee.
[English]
If another employee challenges the appointment, if they were part of that selection process, then it depends on the circumstances.
[Translation]
Senator Hervieux-Payette: If the wrong person was appointed?
Mr. Heavens: Yes, that's it.
Senator Hervieux-Payette: Does that happen often?
Mr. Heavens: No, not often.
[English]
This process has been in place since 2005. I hate to throw out a number, so I would say a handful of appointments have been revoked through this process.
Clause 354, which is not in the chart, is merely replaced. Before, all of the complaints were under section 77, and with the modification that I spoke about, the complaint process is now found in sections 77 and 78, so a lot of these modifications merely reflect that change in clause 354.
The Chair: Just by adding 78?
Mr. Heavens: Precisely.
Clause 355 adds paragraph 84(c) to the employment act. Again, it relates to the remedial powers of the staffing tribunal in cases of discrimination.
Clause 356 is another of the consequential amendments that relates to adding section 78 to the complaints process.
Clause 357 amends section 99 of the employment act, and it provides the staffing tribunal with two explicit powers: to summarily dismiss a complaint if the complainant fails to comply with any of the procedures set out in this act or the tribunal's regulations; and, secondly, it provides the tribunal the power to dismiss a complaint if the deputy head has taken corrective action that the tribunal considers appropriate in relation to that complaint.
Clauses 358 and 359, which are not contained in the chart, are transitional measures and ensure that all of section 78 is included.
Clause 360 is also a transitional provision, which measures from the application of the current provisions of the current act to the application of the revised act.
Clauses 361 and 362 relate to the Public Sector Equitable Compensation Act, and it's a consequential amendment relating to the other amendments that are made in this bill.
There are other coordinating amendments at clause 363, which relate to Budget Implementation Act 2009, again as it relates to the labour relations act and the Public Sector Equitable Compensation Act.
Clause 364 relates to coming into force. Subclause 364(1) provides that certain portions of the act will come into force on the day that section 17 of the Public Sector Equitable Compensation Act comes into force. It is not currently in force.
Subclause 364(2) provides that clauses 325 to 336 and clauses 340 and 342 to 359 will come into force on a day to be fixed by Governor-in-Council.
Unless I missed anything, those are the proposed changes contained in Division 17.
The Chair: Under the Public Sector Equitable Compensation Act — it's not one of those acts I've looked at recently — does the grievance procedure go before the Labour Relations Board?
Mr. Heavens: It does go before the Labour Relations Board.
The Chair: They don't have a separate administrative tribunal for that particular act?
Mr. Heavens: Not for that, no.
The Chair: Just another type of grievance?
Mr. Heavens: Right.
[Translation]
Senator Bellemare: Is the Public Sector Equitable Compensation Act comparable to the Pay Equity Act?
Ms. Benbaruk: That's just it. This is pay equity; it replaces the old rules and it is a new act that has not yet come into force.
[English]
The Chair: I don't see any other questions with respect to Division 17.
Senators, we have the same team here for the next division.
[Translation]
We have Mr. Trottier to explain division 18 to us.
[English]
Mr. Trottier: Actually, I'm going to be asking Mr. Heavens to walk you through Division 18.
Senator Callbeck: I'm just wondering, Division 17 that we just completed, how does that affect Senate staff?
Ms. Benbaruk: I believe that Senate staff is ruled by the Parliamentary Employment and Staff Relations Act, the PESRA. We didn't touch the PESRA in Division 17.
Senator Callbeck: There's no effect at all?
Ms. Benbaruk: No.
Senator Callbeck: That's what I wanted to know. Thank you.
The Chair: Senator Callbeck was also wondering about the extent of consultation with the affected collective bargaining units for this particular legislation. We'll be hearing from some of those in due course, but perhaps you could tell us your point of view.
Ms. Benbaruk: As far as we know, there was no consultation. This is a budget bill. For obvious reasons we would not have consulted because of the secrecy that attaches —
The Chair: The fact that it's in a budget bill is another issue that we have.
Ms. Benbaruk: — to the bill.
The Chair: That is no place to hide this kind of thing. I don't want my colleagues to forget that.
Mr. Heavens: Part 3 of Division 18 enacts the proposed ``Public Service Labour Relations and Employment Board Act,'' and this act will establish the proposed public service labour relations and employment board. This is basically a consolidation of the two tribunals that currently exist: the Public Service Staffing Tribunal, which is established through the employment act, of which I just spoke and which deals with staffing complaints; and the Public Service Labour Relations Board, which is established under the Public Service Labour Relations Act and deals with matters such as grievances, complaints, certifications and other collective bargaining issues. This act will put those two tribunals together. It will allow one board to deal with matters that arise under both acts. Again, this is with a view of streamlining the recourse processes that currently exist because there is often overlap between these types of complaints.
I'll start with clause by clause, and it begins at clause 365, which contains many of the changes being contemplated.
Clause 365 provides the definition of the terms used in the act and the designation of a responsible minister, which is defined and which remains as it currently is, as any federal minister other than a minister of the Treasury Board. It establishes the composition of the board as follows: one full-time chairperson, not more than two full-time vice- chairpersons, not more than 10 full-time members and any part-time members that the Governor-in-Council deems necessary.
It specifies that remuneration of the board members is fixed by Governor-in-Council. It also allows the Public Service Superannuation Act to apply to full-time members of the board, and the Government Employees Compensation Act also applies to all members of the board.
It establishes that the head office and meetings of the board shall be located in the National Capital Region.
[Translation]
Senator Hervieux-Payette: You say in subsection 1 that the members hold office during good behaviour. Then it states that they are appointed for five years and three years. Does that mean they hold office during good behaviour for three years or five years? ``During good behaviour'' means you are virtually appointed for life. I find it odd to use the term ``inamovible'' in French? What does the English version say?
[English]
You don't have the same meaning in English. The English version and the French version, in this case, don't meet.
[Translation]
We are talking about section 8 here, or perhaps not. This is the new act, isn't it, section 8? The versions do not mean the same thing.
Senator Bellemare: Is it subsection 8(1)?
Senator Hervieux-Payette: Subsection 8(1) on page 262 of the act. The term ``inamovible'' is not often used. It means that the member cannot be removed. So I do not understand why the member is appointed for five years. Perhaps the term is not the same in English. ``During good behaviour'' does not at all mean ``inamovible.''
[English]
Ms. Benbaruk: I hate to say, but we were relying on the drafters here, so I'm unable to answer that question.
Senator Hervieux-Payette: You have common sense. I mean, you speak English and French. I think Senator Bellemare is also bilingual, and I can tell you that in French ``good behaviour'' is bonne conduite.
[Translation]
It does not at all mean ``inamovible.''
[English]
The Chair: We will ask you to look into this and then report back.
[Translation]
Senator Bellemare: If I may?
The Chair: Senator Hervieux-Payette, have you finished?
Senator Hervieux-Payette: Yes, I have made my point.
Senator Bellemare: Perhaps we are trying here to say that people who are appointed may not be removed if there is a change of government, for example. Is that possible?
Senator Hervieux-Payette: No.
[English]
The Chair: Mr. Trottier, could you look into this and let us know your position?
Mr. Trottier: Absolutely.
The Chair: It would be very nice if the government wanted to move an amendment, and then someone else wouldn't have to as an individual; but if you feel it is fine, we will have to consider what steps we should take. We will wait to hear from you on that.
Senator Callbeck: In this section, you're combining two boards: the Public Service Labour Relations Board, which really deals with collective bargaining disputes, and the Public Service Staffing Tribunal, which deals with complaints in relation to staffing and classification, or I think that's what they do. Why are you combining them? What's the purpose?
Mr. Heavens: The Public Service Labour Relations Board is a little bit different than most labour boards across the country in that the bulk of their work relates to grievance adjudication. Most labour boards don't deal with grievance adjudication. I would say about 80 per cent of the work of that board relates to grievance adjudication, as opposed to issues such as unfair labour practice complaints, union certification and bargaining units, and that type of thing.
The staffing complaint process, which has been in place since 2005, relates obviously to the selection processes under the Employment Act. Again, it's where the duplication and overlaps sometimes come in. Oftentimes a labour relations grievance and a staffing complaint are based on similar facts or similar situations, and they're being challenged through both processes.
The staffing complaint, although it should be related or generally related to the application of merit, whether there is an abuse of authority, oftentimes other issues creep into those cases which relate to labour relations issues. It's a natural fit that these two tribunals would be able to hear complaints under the two acts.
Senator Callbeck: So you're trying to get rid of duplication?
Mr. Heavens: That's correct.
Senator Callbeck: How many people are on these two boards?
Mr. Heavens: I have a chart here.
Mr. Heavens: It is between 18 and 20, so this would be a slightly smaller board because here would only be one chairperson rather than two. There would be one to two fewer vice-chair people. The full-time members I believe would be more or less the same, and as many part time as deemed necessary.
Senator Callbeck: How many part time are there now?
Mr. Heavens: The Public Service Labour Relations Board has approximately 10 part-timers. The staffing tribunal doesn't call them part-time members; they call them temporary members, so they can work either full time or part time. I believe they have five of those.
Senator Callbeck: So the board is going to have fewer people, but you can hire as many part-timers as you want?
Mr. Heavens: Precisely.
The Chair: Could you go back and help me understand that the Governor-in-Council may, by order, designate any federal minister, other than the ministers who sit on Treasury Board. Could you explain to my colleagues the reason for excluding the Treasury Board ministers? There are several ministers that sit on Treasury Board.
Mr. Heavens: Certainly.
That provision, I believe, has been there since 1967, when the Public Service Staff Relations Act came into place, but it's essentially to ensure that the Public Service Labour Relations Board is at arm's length and is independent of the employer. Of course the Treasury Board is the employer. Some minister has to be responsible for the act, but in order to maintain that independence or impartiality it should be somebody who is not on the Treasury Board itself.
The Chair: There are quite a few ministers who sit on Treasury Board.
Mr. Heavens: Traditionally, the Minister of Heritage has been responsible for these acts.
The Chair: That's one of the few who doesn't sit on Treasury Board. That's interesting. The reason it's repeated here is because we have an act within an act, in effect?
Mr. Heavens: That's right. A lot of this is really just replicating —
The Chair: Putting this into a new act?
Mr. Heavens: Precisely.
Senator Callbeck: I'm reading here that the proposed act would not require knowledge of labour relations, employment or staffing matters as criteria for appointment of members of the proposed board. Now, is that in the legislation for the two boards we have now? Is there any criteria in there?
Mr. Heavens: There is currently a qualification requirement in each of the acts. The labour relations act requires — Mr. Duggan will correct me if I misstate it — experience in labour relations issues, and the staffing tribunal members require qualifications in public sector employment matters.
Senator Callbeck: In the new act, that's taken out completely?
Mr. Heavens: It is not explicitly there, but there will still be a selection process through the Governor-in-Council to name these individuals.
Senator Callbeck: What assurances have we got that this proposed board is going to be adequately qualified to deal with the types of decisions that will come up?
Mr. Heavens: The current process is that the employer side and the union side provide names to the chairperson of the board of people that they believe would be qualified for it. The chairperson then takes this list and can add names of his or her own in order to bring that to the order-in-council to have the members appointed; so it's through the order-in-council process that the qualifications would be assessed by the chair.
Senator Callbeck: Will this happen under this new legislation, that they both come up with names?
Mr. Heavens: This is a current process in place for the Labour Relations Board whereby the parties themselves provide the names to the chairperson. The chairperson does an assessment and provides the recommendation to the order-in-council.
Correct me please if I'm not saying it exactly right.
The Chair: Is that a process that's followed or is that a regulatory or statutory requirement?
Dennis Duggan, Senior Policy Analyst, Compensation and Labour Relations Sector, Treasury Board of Canada Secretariat: It's actually outlined in the act, the current PSLRA. The chair submits the names to the Governor-in- Council, and from that list they choose to appoint, where there are vacancies.
The Chair: And you are saying that won't change?
Mr. Duggan: That's exactly the process as outlined in the new act, yes.
Senator Hervieux-Payette: You said it's in the act. Where is it?
Mr. Duggan: It's in the new act. In terms of process?
The Chair: No, no, the new act that we're being asked to consider to pass.
Mr. Heavens: Bear with me for a second and we will find you the exact —
Senator Hervieux-Payette: It's a consultation mechanism but doesn't give any indication of the qualification of the people. I haven't seen anything related to the qualification. I'm reading proposed section 6. It talks about the list, and it talks about the chairperson after consultation with the employer and the bargaining agent.
Mr. Duggan: As is the case now, the chair solicits names from both employers and bargaining agents subject to the act, and one assumes that the two parties will be providing nominations of people whom they consider to be qualified with the requisite experience. The chair himself or herself can review that along those lines, including in this case now with a combined board — having people on the board who have appropriate understanding, knowledge and experience with respect to staffing matters in the public sector.
Senator Hervieux-Payette: But if you read proposed paragraph 6(3) regarding the chair and the vice-chair, it's the government's privilege to appoint them. The bill then states:
. . . to the extent possible, an equal number are appointed from among persons recommended by the employer and from among persons recommended by the bargaining agents.
It's not very strong when you talk about ``to the extent possible.''
Mr. Heavens: But that's the provision that's currently in the act, and I believe it's ''to the extent possible.'' If it's an odd number of people being appointed, you can't obviously have equal members from each side.
Senator Hervieux-Payette: I think it could have been drafted differently.
Mr. Heavens: I believe it's the same as what's in the current legislation, and it's to more or less have a balanced board. But you'll note the next proposed paragraph about notwithstanding the fact that they were recommended by one side or the other, that when they are appointed, they ``must act impartially in the exercise of their powers.'' So they don't wear the same hat once they're appointed to the board. They're impartial.
Senator Hervieux-Payette: They do not wear the same hat? You mean you have a panel of quasi-judges and they have a prejudice before they've even started?
Mr. Heavens: No, they are drawn from one side or the other.
Unlike some other boards — and I believe the CIRB, where they have panels of people with an employer nominee, a union nominee and those two nominees nominate a neutral third — the majority of the panels under these acts are one- person panels.
Senator Hervieux-Payette: One person?
Mr. Heavens: One-person panels.
Senator Hervieux-Payette: Why do you call that a panel if it's one person?
Mr. Heavens: It could be up to three, and the law provides for that, but generally speaking it's just one. It has always been that way.
Senator Hervieux-Payette: So it could be either employer or employee?
Mr. Heavens: But, again, while they're doing their functions, they're bound by this provision — and it's the same as is in there now — to be impartial.
Senator Hervieux-Payette: If the unions are happy, I'm happy.
Senator Callbeck: I want to be clear on this. Under the present legislation we have two boards. I thought you said that, for example, the Labour Relations Board — it is spelled out in the act that they have to have experience in this, this and this. The service staffing and tribunal — it's spelled out in the act. But now under Bill C-4, it's not spelled out that they have to have experience in anything.
Mr. Heavens: That's correct.
Senator Callbeck: The union and the government come up with names. The order-in-council selects the names, but they can also select people who are not on that list, right?
Mr. Trottier: They could.
Senator Callbeck: Could they before?
Mr. Trottier: I believe they had that power.
Mr. Heavens: I don't know if it has ever happened. I think they generally stick with the list.
The Chair: It says ``must be appointed from among eligible persons.'' That sounds like it should come from the list, but the problem is the list can be made up of people who aren't experienced.
Senator Callbeck: Right. It seems strange to me that that is left out of the legislation.
Mr. Duggan: What we have to do is trust — and we certainly have in the past — the chair of the board will nominate people he or she considers has that requisite experience and knowledge. That has been the case in the past.
Senator Callbeck: It has been the case but it has been in the legislation. Now it's out of it.
Mr. Duggan: Correct, but the appointment process, in terms of vetting, one could consider that the chair would be a part of that, taking the understanding that he has to have people on there who know what they're talking about, and also given that the Governor-in-Council would be appointing from that list as a rule. One also has to assume that those people will have the knowledge needed to be a member of the board.
Mr. Heavens: I think the check is that the chairperson determines whether or not they are eligible for appointment. But frankly, I can't think of a situation for either side where it would be in their interests to nominate someone who is not qualified or doesn't have the appropriate experience.
Senator Callbeck: But do you have to be on the list to be named by the order-in-council?
Mr. Heavens: You have to be on the list provided by either side, but then the chairperson decides who is eligible to put on the list that goes to order-in-council.
Senator Callbeck: So cabinet cannot appoint somebody unless they're on the list?
Mr. Heavens: That's the way I read this, yes.
The Chair: Why was the requirement for someone to have experience removed? That's the real question. I understand you must trust and you have to assume, but why was it removed? Was it deemed superfluous? Was it to give more flexibility to the government to make appointments? There must be a reason why that was taken out.
Mr. Heavens: I don't know that I have the answer to that question.
The Chair: We all understand it's taken out? Okay. Thank you.
Mr. Heavens: Clause 366.
The Chair: Was there anything else in the act you wanted us to look at? This is the act within the act?
Mr. Heavens: That's correct.
The Chair: It keeps going on and on here.
Mr. Heavens: The majority of what's contained in there is maintaining what is currently in place.
The Chair: An amalgamation of what was previously there.
Mr. Heavens: That's correct.
The Chair: There are no policy changes other than the ones we discussed? There are no other policy changes in this new act that combines the two acts?
Mr. Heavens: No major policy shifts.
The Chair: Okay.
I'm on page 270, clause 366. Is that where we are?
Mr. Heavens: This is a modification to the definition of ``adjudicator'' and ``Board.'' Some of it is to reflect the name of the new board.
Currently, there are two sets of powers under the Public Service Labour Relations Act. I will try to explain this briefly. There are the powers of a board member who is dealing with complaints, certification processes and other matters. Then there are powers provided to grievance adjudicators. Under the amalgamated board, those powers will essentially be combined so that the concept of adjudicator will be used rarely and only in circumstances where the parties choose who will hear their grievance adjudications.
Other than that, it is considered a board member. It is more a syntax or nomenclature issue because often the board members and the adjudicators are one and the same. They are hearing matters as a board member and an adjudicator at the same time. It's just how we're referring them to.
The Chair: When referring to an amendment to the act, we are dealing with the Public Service labour relations act as opposed to the proposed ``Public Service Labour Relations and Employment Board Act'' that we just dealt with?
Mr. Heavens: The proposed ``Public Service Labour Relations and Employment Board Act,'' the PSLREBA. That's what we're dealing with now.
The Chair: Okay, so the amendment to the act is not the Public Service Labour Relations Act but the new labour relations and employment board act?
Mr. Heavens: There are consequential amendments. The PSLREBA establishes the combined tribunal. By virtue of that, it is taking some of the powers currently found in the Public Service Labour Relations Act and some of the powers in the Public Service Employment Act and bringing them under this PSLREBA — the combined tribunal — so they are all under one house.
The Chair: Clause 366 is dealing with an amendment to the act?
Mr. Heavens: It's the labour relations act, correct.
Clause 367 is merely replacing headings to include the new name of the consolidated tribunal.
Clause 368 provides the regulatory power to the new tribunal with respect to the circumstances in which evidence may be received by the board.
Clause 369 repeals —
The Chair: Could I ask a question here? So that it's clear in my mind and the minds of those watching this, we created a board under one act, but the powers of the board are now under another act? Is that's what's happening here?
Mr. Heavens: Any powers common to both the Public Service Labour Relations Board and the Public Service Staffing Tribunal — I can list several — are contained in this new act. However, some powers are unique to either labour relation issues or employment issues, and those remain in the current acts.
Maybe Mr. Duggan can explain it better.
Mr. Duggan: One has to remember that the PSLRB is established through the PSLRA, similar to the Public Service Staffing Tribunal established through the Public Service Employment Act. This act will repeal those particular sections referring specifically to the establishment of the PSLRB and the PSST under the PSEA and places them under the new board. In some cases, certain powers that are common need to be in the new act and removed from the current act, either the PSLRA or the PSST. It's simply a question of amending the PSLRA as a consequence of the new board being established by the new act.
[Translation]
Senator Bellemare: Why did you not repeal the act so that we would have one act and only one board?
Ms. Benbaruk: First, it was simpler to do it this way. There was also the problem of the Public Service Employment Act. It continues to apply in respect of the Public Service Commission. So it is just one part —part 6, I believe — of this act that referred to the Public Service Staffing Tribunal and it is this part that we have affected with this new act.
We could not touch the rest of the act, which concerns appointments by deputy heads, which are routine and based on the merit principle, except that this new tribunal must refer to the Public Service Employment Act and the Public Service Labour Relations Act, which are still in force. Starting to repeal what was already in force and must continue in force would have involved even more surgery.
We therefore amended the old act, which remains in force, but there is a new act that creates a new tribunal and does not affect substantive rights, apart from division 17, which we have just discussed.
Senator Bellemare: Thank you very much, that is very clear.
[English]
Mr. Heavens: Clauses 369 through 373 are essentially editorial changes to reflect the new name of the tribunal.
Clause 374 contains editorial amendments to section 223 of the Public Service Labour Relations Act. In the act there are provisions that allow the parties to choose who will hear their grievances at adjudication.
The parties can agree to that either in a collective agreement or on an ad hoc basis. It has never been used. It has always been the Public Service Labour Relations Board adjudicators that heard those grievances. Clause 374 separates the term ``adjudicator'' to represent only those circumstances where the parties themselves choose who will hear the grievance. In all other circumstances, it's considered a board member, so it's streamlining the power so there is one set of powers for the 99 per cent of situations the board will see.
The Chair: Adjudication by the board has different powers than an adjudicator appointed by the parties?
Mr. Heavens: They are essentially the same except the board has additional powers in terms of certifying bargaining units, dealing with unfair labour practice complaints. The adjudicators themselves only have the power to do is deal with grievances.
I don't think I have answered you question.
The Chair: You have, but I am trying to think why you would change the term. If you are dealing with a grievance — whether an outside or inside adjudicator — why would you change the term if its inside to say it's the board and outside it's still an adjudicator? What was the mischief you're trying to solve here by creating this complexity?
Mr. Heavens: For the vast majority of circumstances that will go before the board, you won't have to look at two places in the act. You will be able to look in one place. They will now have responsibility for not only grievance adjudications, other labour relations act issues and staffing complaints. It's so that board members are one animal, if you will; they wear one hat and have one set of powers.
The Chair: We're only talking about adjudicating to resolve grievances here.
Mr. Heavens: That's right, and for those few situations where the parties themselves have chosen the adjudicators, that separate concept remained the same. For everything else it will be one set of powers and heard by a board member.
Ms. Benbaruk: I believe it was designed to make board members more fluent so they could hear a staffing complaint, a grievance, or an unfair labour practice. That's why the concept of adjudicator was done away with.
The Chair: So when they are hearing a grievance, they used to call that ``adjudication,'' but we just call it a ``hearing a grievance'' now.
Ms. Benbaruk: I believe that's correct. You can combine. If someone grieves the fact that I was mistreated by my boss, there is a collective agreement involved, and the staffing was not done right. That same person, the board member, would hear all three at once. That's part of the streamlining that was the objective of this legislation.
The Chair: An outside adjudicator could not hear all three of those.
Ms. Benbaruk: That's correct. The adjudicator would be wearing one hat only.
The Chair: Thank you.
Mr. Heavens: Clauses 374 through 381 are merely amendments that reflect the change we just discussed between board member and adjudicator.
Clause 382 amends sections 283 and 284 so the same prohibitive clause and process for filing an order in Federal Court applies to a board decision and also to an adjudicator's decision. Currently there are different processes in place and different prohibitive clauses, depending which hat you're wearing. Under the new act, they will all be the same.
Clause 383 is a minor amendment that amends the reference from ``executive director'' to ``chairperson'' in relation to determining the expenses of adjudication.
Clauses 384 and 385 are amendments to merely reflect the new name of the board.
Clause 386 again is related to the issue of adjudicator versus board member. It modifies paragraph 244(a) so that it applies only to adjudicators.
Clause 387 replaces section 245 of the labour relations act to mirror the protection against criminal or civil proceeding, which is found at section 33 of the proposed ``Public Service Labour Relations and Employment Board Act.'' That applies to members so that the same protection applies to a member of an arbitration board, of a public interest commission, a mediator, adjudicator or a person seized of a referral under subsection 182(1). This merely ensures that the same type of protection is provided for anybody doing any of those functions.
[Translation]
Senator Hervieux-Payette: There is no problem in not having civil proceedings, but criminal proceedings generally involve an offence that can be serious. I am trying to understand why the word ``criminal'' appears in this new section. The judges in our courts are not immune from criminal proceedings. If they go through a red light, they will be subject to prosecution like any other citizen. I am trying to determine what kind of criminal proceedings this refers to. A disgruntled employee will normally be unable to institute criminal proceedings. He or she may bring a civil suit, but you would not allow him or her to do so. We are talking about clause 387. I wonder why the word ``criminal'' appears in this new section.
[English]
Mr. Heavens: If I may, I believe that term is used currently in all of the acts. There has been no change in that regard, and it's in relation to the duties they are performing under these acts. I understand your question; however, I believe there is no policy change. The wording is currently in the acts.
The Chair: That absolves them of any liability themselves if they act in good faith. That's what you're trying to achieve here.
Mr. Heavens: That's correct.
[Translation]
Senator Hervieux-Payette: I have no problem with civil proceedings, except that if these people render a decision in return for a favour, they will be subject to the act. They could not fail to be, and there would be criminal penalties in that instance. That is why the word ``criminal'' troubles me. You tell me it was there before. I obviously believe you.
The only thing I am telling you is that, if it was there before, there should be a reason why it is there, and we are correcting an act. I would like you to consider the question more carefully and to come back to us with a reason. We will review the bill.
Consequently, Mr. Chair, I believe it would be worthwhile to determine why the word ``criminal'' was originally put there.
[English]
The Chair: Perhaps you can help us with that. There are two or three other things you're going to check at the same time, so just add that to the list.
Mr. Heavens: Clause 388 modifies subsection 247(1) of the act to remove reference to ``members of the Advisory Board on Compensation Analysis and Research.'' That is to reflect the deletion of that function from the labour relations act.
Clause 389 modifies section 248 of the act and removes the reference to ``board'' in relation to witness fees, as that is already covered in section 41 of the new act.
Clause 390 is merely a reflection of the new name of the new board. Clauses 390 to 402 are transitional measures from the application of the current provisions of the Public Service Labour Relations Act and the Public Service Employment Act to the application of the proposed ``Public Service Labour Relations and Employment Board Act'' coming into force.
Of note, each member of the former board, the Public Service Labour Relations Board, holding office immediately before the coming into force of the act will cease to hold office on the day the act comes into force. Employees of the Public Service Labour Relations Board will become employees of the new board.
The Chair: The Governor-in-Council appointees are out of a job, but the employees are still in their positions?
Mr. Heavens: Right, and then new members will be appointed.
The Chair: According to the new rules.
Mr. Heavens: Yes.
We will move to clause 403 dealing with amendments to the Public Service Employment Act. Clause 403 merely changes the word ``tribunal'' to ``board.''
Clause 404 modifies a portion of subsection 35(1) to ensure that employees of the board may participate in advertised appointment processes, as is the case of current employees of the tribunal itself.
Clause 405 is merely to reflect the new name of the new board.
Clause 406 is changed so that the heading of section 97 of the employment act of ``Complaint Procedures'' is replaced with the more accurate heading of ``Mediation Services.''
Clause 407 modifies sections 98 to 104 of the employment act, which dealt with the powers of the Public Service Staffing Tribunal in relation to the handling of complaints, and they are replaced to reflect the existence of the new board. Some of the provisions have been moved to the new act.
The Chair: You kept ``Complaint Procedures,'' but you just moved it along a couple of clauses?
Mr. Heavens: That's correct.
The Chair: So we have both headings now, ``Mediation Services'' and ``Complaint Procedures.''
Mr. Heavens: That's correct.
Clauses 409 to 414 are essentially editorial and reflect the new name of the board from ``tribunal.''
There are some transitional provisions found at clauses 415 to 424, which provide transitional measures from the application of the current provisions of the Public Service Employment Act to the provisions of the proposed ``Public Service Labour Relations and Employment Board Act'' on coming into force.
The Chair: Why do you have two different groups of transitional provisions?
Mr. Heavens: Some deal with the amendments to the labour relations act and the others relate to the Public Service Employment Act.
The Chair: Wouldn't it be helpful if you said that transitional rules at clause 391 forward deal with the labour relations act?
Mr. Heavens: I'm sorry; I thought I had said that.
The Chair: No, you hadn't said it in the act. If somebody picks this up three years from now, they will wonder what's going on here, why the different transitions. We're trying to make this legislation readable.
Mr. Heavens: I believe there is a heading in the act that outlines which act is being modified. It might not be right at that section. I'm just trying to find clause 391.
The Chair: If we had the new act or old act, these are transitional rules bringing into force the new provisions of the new act.
Mr. Heavens: That's right. If you read the division as a whole, the modifications to the labour relations act are all found at whatever section I started with through clause 391. All of those changes relate to the Public Service Labour Relations Act. So although it doesn't say it in the heading at clause 391, those transitional provisions follow all the changes to the labour relations act.
The Chair: The next set of transitional rules is in relation to the staffing legislation.
Mr. Heavens: That's correct, starting at clause 403.
The Chair: Clause 403? I have transitional rules starting at clause 415.
Mr. Heavens: Sorry, in clause 403 you'll see the heading ``Public Service Employment Act.''
The Chair: That's where the heading is.
Mr. Heavens: That's correct. Everything that follows is amendments to the —
The Chair: The subheading is at page 286, transitional rules. That's the second group of transitional rules in the same act.
Mr. Heavens: That's correct. I was about to mention that, similarly, as was done with the Labour Relations Board, each member of the Public Service Staffing Tribunal will cease to hold office on the day on which the act comes into force. However, the tribunal employees will become employees of the new board.
The Chair: What happens in each of these transitional situations of something that is already in progress? We haven't touched on that.
Ms. Benbaruk: The general rule is that if a complaint or a grievance has been launched before the coming into force of this act, which is by Governor-in-Council, it is under the old rules, the old tribunals, the two separate ones, and if a new complaint comes after the coming into force of this act it goes to the new consolidated tribunal.
The Chair: So somebody could be hearing something, it would be in process, and that adjudicator hearing the grievance suddenly hasn't got a job. He can't hear it any longer. Then you will have to wait for a new person to be appointed and that new person doesn't necessarily have to have any experience in this field at all.
Mr. Duggan: I believe how the act is in terms of ``transitional,'' cases that are in progress will be allowed to be completed by the person who was appointed to hear them.
The Chair: The older person who ceases —
Mr. Duggan: Under the previous rules, as they applied, the day prior to coming into force.
The Chair: We just did a section that said that when this comes into force, those who were on the panel cease to be on the panel.
Mr. Duggan: Correct.
The Chair: But you're saying there is a provision in here that we haven't looked at. If you could direct us to it, that would be helpful. We don't have to do it now, but if you could just direct us to it, to allow for grievances in process or matters in process to be dealt with under the old system, the old rules, until their grievance has been resolved.
Mr. Heavens: Certainly. I'm looking at the employment act changes, but they are similar in the labour relations act. If you refer to clauses 417 and 418, they deal with those situations to ensure continuity of processes that are currently under way.
The Chair: What I'm looking for now is the clause that says when this is brought into force they cease to be a member of the tribunal. Clause 417 says ``a member of the Tribunal,'' so if they cease to be, that doesn't shelter them.
Mr. Heavens: Clause 416, in terms of the staffing tribunal itself, provides that members of the tribunal cease to hold office on the day on which subsection 366(1) comes into force, and then 417 and 418 talk about continuation of proceedings and continuation of the member of the tribunal seized of a matter before the coming into force.
The Chair: Clause 418 says ``a member of the Tribunal,'' so 416 excludes all of the past members of the tribunal, so they are not a member of the tribunal any longer.
Mr. Heavens: Not for the purpose of clauses 417 or 418.
The Chair: It doesn't say ``a member of the previous Tribunal.'' It says ``a member of the Tribunal,'' and 416 says once the new sections come in they are no longer members of the tribunal. Tell me how I'm misreading this.
Mr. Heavens: I'm reading it. The member of the tribunal which was replaced the day before the coming into force of the provisions can continue to be the member for that proceeding.
The Chair: We have legal counsel agreeing.
Ms. Benbaruk: I agree with Mr. Heavens.
Mr. Heavens: That's comforting.
The Chair: That's two against one. Thank you.
Mr. Heavens: I believe I'm at clause 425, and this relates to consequential amendments that have been made to the Parliamentary Employment and Staff Relations Act. In answer to one of the earlier questions, there are substantive changes to the provisions of this act, which covers parliamentary employees. It's merely editorial changes, so that the Public Service Labour Relations Board will now be the public service labour relations and employment board. It's merely editorial changes among those types, and that's from clause 425 through to 437 and 438.
Clause 439 deals with an amendment to the Federal Courts Act, and it replaces paragraph 28(1)(i) to reflect the new name of the board. There is also a consequence of the change from adjudicators and board members. Under the current process, cases are judicially reviewed at different levels of the court. Under the new legislation, all judicial reviews will be handled by the Federal Court of Appeal. Clause 440 merely ensures that if a judicial review application has been made before the day on which the division comes into force, it is to be dealt with as if that division had not come into force. So if somebody is judicially reviewing a grievance decision currently under way and this act comes into force, they continue to pursue that at the Federal Court.
Ms. Benbaruk: If I may, this is another mischief that the idea of changing ``adjudicator'' to ``board member'' was designed to deal with, which is now all of the decisions of the board members go to the Federal Court of Appeal as opposed to the Federal Court. That had been an anomaly of the current system. The current system is that adjudicators' decisions go to the Federal Court and the board's decisions go to the Federal Court of Appeal, so it was an odd split. Now we have joined them together. That was another mischief that we had intended to cure by making them board members.
The Chair: That's helpful. Thank you.
Mr. Heavens: The remaining clauses deal with the consequential amendments to the Public Sector Equitable Compensation Act and are merely editorial to reflect the new name of the board.
Clauses 467 to 469 are coordinating amendments to all of the acts that are in play: The Public Service Labour Relations Act, the Public Service Employment Act, the Public Service Equitable Compensation Act and other acts, and the coming into force of the proposed ``Public Service Labour Relations and Employment Board Act.''
Finally, Clause 470 provides that sections 365 to 466, and any provision enacted or amended by any of those sections, will come into force on a day or days to be fixed by order of the Governor-in-Council.
I believe that concludes Division 18.
The Chair: I believe it does. When is the exam?
Mr. Heavens: I thought that was it.
[Translation]
Senator Bellemare: Perhaps I missed something. Are there any provisions that change anything in the Status of the Artist Act? I am at clause 466 on page 299.
[English]
Mr. Heavens: I believe it's merely a consequential amendment.
[Translation]
What page was that again?
Senator Bellemare: Page 299.
[English]
The Chair: What is referred to as to the Status of the Artist Act. What's that all about?
Mr. Duggan: It's a consequential amendment where a reference to the board was in that act, so now it will refer to the new board.
[Translation]
Senator Bellemare: That changes absolutely nothing?
Mr. Heavens: No.
[English]
The Chair: Are there any other points, honourable senators?
If not, then let me thank our witnesses. This has been very helpful. It's quite complicated for us given that we are not specialists in this particular area. You have kept your acronyms to a minimum, and that's always helpful to us.
We may have some follow-up questions. If we do, we will contact Mr. Trottier and you can deal with them along with the two or three undertakings we have asked for, which will be helpful to us.
Let me thank you again for having your team work on preparing this schedule for us, because this is helpful in helping us understand this rather complicated piece of legislation, which is a complicated piece of a much bigger complicated piece that we're dealing with.
Mr. Trottier: Thank you very much for your questions and your time.
The Chair: Colleagues, we will let our witnesses pack up their bags. We will be meeting this afternoon in 257 East Block.
It is very difficult for Jodi Turner, our clerk, to line up witnesses on short notice, but she is doing a great job. We are moving along quite nicely.
(The committee adjourned.)