Proceedings of the Standing Senate Committee on
National Finance

Issue 12 - Evidence - September 2, 2003, 2 p.m.

OTTAWA, Tuesday, September 2, 2003

The Standing Senate Committee on National Finance, to which was referred Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts, met this day at 2 p.m. to give consideration to the bill.

Senator Lowell Murray (Chairman) in the Chair.


The Chairman: I call the meeting to order.

Senator Furey: First, I apologize for not attending the meeting before the recess, but I was involved with another committee, on Bill C-24. I want to ask if it is the practice of this committee that, prior to entertaining all votes or motions, all of the witnesses will be heard from?

The Chairman: That is our invariable practice, Senator Furey. If you have amendments to propose to this bill, you should do so when we are at clause-by-clause consideration. If you or others have any matters to raise relating to the business of the committee, then I could convene a special meeting of the committee tonight or early tomorrow morning.

I want to thank all the committee members for returning two weeks early to resume our consideration of Bill C-25. It is not necessary for me to draw your attention to the importance of this bill. The last attempt to overhaul legislation affecting the federal public service was in 1967 — 36 years ago. Before that, the legislative framework that governed the public service was, essentially, enacted in 1918-19. In consideration of the importance and voluminous nature of this bill, which amends several other acts of Parliament, it behoves us to try to get it right.

We spent four or five hours on the bill in June; we will spend, I suppose, about 10 hours today and tomorrow on it; and we will meet on September 16 and 17 for additional hearings. I hope you will agree that we have arranged a good cross-section of witnesses who will provide their different perspectives on Bill C-25.

We will hear a wide range of opinions, from people who are strongly in favour of the proposed legislation to those who are opposed to this proposed legislation and/or parts of it. That is as it should be with such an important bill.

I read in the media, in the last day or so, statements attributed to named and unnamed persons to the effect that the parliamentary schedule is so terribly tight that no amendments could be entertained for this bill. Senators, we are meeting two weeks before the Senate resumes precisely so that we will be able to complete our examination of this proposed legislation. If the committee and the Senate, in their wisdom, decide to propose amendments to this bill, it is my opinion that the House of Commons will have ample time to accept or reject the amendments. If all goes well, we could report this bill as early as September 18, which is the first week the Senate resumes. Naturally, that is up to the committee.


Senator Gauthier: I would like to make a suggestion. I reviewed my documents over the summer so that I would be ready for the committee's study of this bill. I noticed that Bill C-25 is based on changes made at the Canada Customs and Revenue Agency. This agency has more or less been privatized. It used to have a poor reputation as far as grievances were concerned. It was almost always ranked near the bottom.

Today, I am told that it is one of the top-ranking agencies because it implemented measures proposed in Bill C-25. I would like to hear representatives from the Canada Customs and Revenue Agency explain how the changes they implemented had a positive impact on employee/employer relations. I think that this is important.

The Chairman: As I just told Senator Furey, if you would like to suggest any other witnesses that are not currently on the agenda, you are free to do so. We would have to convene a special committee meeting in order to deal with this issue.


Senator Gauthier: Who is on the committee?


The Chairman: The entire committee. I am prepared to convene a committee meeting, following today's meeting or early tomorrow morning. It is up to you to consult your colleagues.


I am in the hands of the committee.

Senator Gauthier: Are you flexible?

The Chairman: I am very flexible.

Senator Furey: In response to Senator Gauthier's request, given the full schedule of the committee, would Senator Gauthier be amenable to having representatives of Customs and Excise provide written submissions to the committee for consideration?


Senator Gauthier: No, I want to see them here in the flesh.


I want to hear from them in person.

The Chairman: That is fine.

Senator Gauthier: I do not want a paper to be submitted three months after we have completed our work.

The Chairman: We are now embarking on a discussion for an in camera meeting on future business of the committee.

Senator Kinsella: Mr. Chairman, I certainly welcome your observation that the committee will do its work and that the committee will be open to amendments, should the committee wish to introduce amendments.

On the matter of future witnesses, am I correct in understanding that the integrity commissioner will be called to testify on September 16?

The Chairman: The President of the Treasury Board has, at our request, given up a half hour of her time early on September 16, should that be the date of her appearance before the committee, so that the integrity commissioner could be heard on the matters that are of interest to Senator Kinsella and others.

Senator Kinsella: Yes, thank you.

The Chairman: Our first witness today is from the Public Service Alliance of Canada.


We have the pleasure of welcoming Ms. Nycole Turmel, who is well known here on Parliament Hill and in the parliamentary committee. She is the National President of the Public Service Alliance of Canada. She is accompanied by Mr. Mark Pecek, a political assistant, and Ms. Jacquie de Aguayo, legal counsel.


Welcome, Ms. Turmel, and please proceed.

Ms. Nycole Turmel, National President, Public Service Alliance of Canada: I will make my presentation in English. The committee is in possession of our written submission. I will keep my remarks brief, to ensure that you will have time for questions. The three of us will be available to answer your questions.

I should like to explain our concerns with the following provisions of Bill C-25: merit, whistle-blowing, essential services, strike votes, prohibition and enforcement. A list of the specific amendments that we are recommending has been annexed to our submission for your reference.

I should like to begin with our position on whistle-blowing. Whistle-blowing should be covered by separate and stand-alone legislation. Bill C-25 should contain a strong prohibition against disciplinary retaliation against whistle- blowers, which would provide immediate protection for whistle-blowers. Therefore, clause 236 of Bill C-25 should be deleted. Employees should have access to remedies provided in both civil courts and the grievance process.

I should like to outline what should be contained in this proposed legislation. There should be a strong prohibition against disciplinary retaliation. Employee identification should remain confidential. The employee should not be required to first exhaust all other review procedures before filing a complaint. There should be a clear definition of ``harmful act,'' such as the list in the current Treasury Board policy, and a clear definition of ``good faith,'' which only requires that a employee did not raise a concern that he or she knew was based on false information. There should be a fully funded, arm's-length, neutral agency responsible for the application of the act and which reports directly to Parliament.

We have received and reviewed a copy of Senator Kinsella's amendments, and we support his amendments. We have only one major concern, which is that the whistle-blower provisions will be under the PSEA and complaints would be handled by the PSC.

This creates two problems. First, the Public Service Commission has a corporate culture in its relationship with government, which may prevent them from being seen as fully independent and neutral. The second concern is that by including this provision under the PSEA tens of thousands of employees who work for agencies such as Canada Customs and Revenue Agency, Parks and CFIA will be excluded from the provisions and thus remain unprotected.

The second concern relates to staffing merit. There is a link between our concerns about the changes to merit and the appeal process. If direct managers now have increased influence over employees' careers and the appeal rights are too narrow can we really expect public service employees to come forward with allegations of wrongdoings?

We still recognize the need for a less cumbersome staffing process. However, by watering down the merit principle, delegating staffing authority to the lowest management levels and restricting recourse, we fear Bill C-25 will lead to favouritism and patronage.

While most managers are honest and respect the rules, a recent audit of the federal student work experience program shows that, given the chance, a significant number of them will circumvent the rules to hire friends and family.

There is no valid reason why the government cannot simply legislate core principles on merit, patronage and political activities and leave the rest to be negotiated between the employer and the bargaining agent, as it is right now under the code.

Our written brief outlines suggestions for dealing with the current staffing process without forsaking merit. For example, requiring that individuals meet all the qualifications of a position, not just the essential ones; removing the section stating that it is not inconsistent with merit to assess only one individual for appointment; removing the wide and unreviewable discretion to make selections for appointment by taking into account discretionary factors such as qualifications or operational requirements that may be an asset to the current official needs of the public service; and making appointments subject to appeal to the tribunal on the basis that the appointment was contrary to the act or was based on irrelevant considerations.

The next item is essential services. Our main problem with Bill C-25 is that it does not substantially change the current definition of ``essential services'' or the employer's exclusive right to determine the level of service that is to be provided. We have long argued that these provisions are designed to insulate the employer from feeling the effects of a strike rather than ensuring the safety and security of the public. If the provisions of the Canada Labour Code are appropriate for airports and nuclear plants, why would they not be appropriate for the federal public service? You might think that the unions will be happy, as they will be able to negotiate the number of employees who will be designated. When the employer has the exclusive right to determine the level of service to be provided during a strike, and they do not have to consider using managers, nor do they have to change their hours of operation or use overtime to provide essential services, what is left to negotiate?

Prohibition and enforcement is another matter we should like to address. We are already subject to duty of fair representation provisions. Why impose huge fines and a summary conviction on union representatives, who, for the most part, are unpaid volunteers? These provisions will only serve to dissuade our members from getting involved in their union and will only contribute to employees who are victims of harassment and other forms of abuse scrambling for representation.

Yes, we do agree that these positions also apply to management. Under these provisions, a manager will be levied at most a $1,000 fine, whereas an officer or representative of the union, who could be an employee who volunteers to be a shop steward or a local president, could be subjected to a fine of $10,000 under section 203. That is the main part we wanted to address.

As I said at the beginning, you have a copy of our written submission; as well, you have a copy of the submission we put in front of the committee of the House. We are ready to answer questions. We wanted to give you the time to do that.

The Chairman: You have also, quite helpfully, provided draft amendments along with your remarks. We thank you for that.

Senator Kinsella: I wanted to compliment you for your initiative dealing with whistle-blowing in particular. Whatever the model that would be adopted, what is important — and I think this is where we share complete common ground — is that we have to have machinery of whistle-blowing in any modern public service. Equally, we need to have a whistle-blowing mechanism that applies to the private sector in the area of federally regulated labour. Therefore, would you agree that it is incumbent upon the federal government to set the example and to come forward with either your model or my model or its own model, but to do it in the here and now, so that it can then turn to private sector whistle-blowing legislation?

Ms. Turmel: Yes, I do agree with you. As a matter of fact, you know that the Red Book in 1993 proposed to have whistle-blowing; it never happened. That is one example. They should set examples. I have said it many times on other issues. As a employer, as a government, examples should have been set on many issues.

I should like to address something Ms. Robillard said, that you do not have time to look at other legislation. I believe your proposed legislation was introduced in 2000, so there are many ways that they could do it at this point.

Senator Kinsella: Indeed, as Ms. Turmel points out, this committee unanimously adopted Bill S-13, to deal with whistle-blowing, which went back for third reading to the Senate.

In terms of your specific proposal, if this committee were to accept your amendment, have you looked at the question of whether we might have a technical problem, in terms of it then turning into a money bill type of amendment, which, of course, as you know, would need a Royal Recommendation? We were careful, in the drafting of Bill S-13, which was adopted by this committee, and Bill S-6, which is a repeat of it, to craft it — and why we chose the model we chose — to avoid the problem of the Royal Recommendation. I am curious as to whether any of your people have looked at that technical matter. It would be helpful for the senators to know.

Mr. Mark Pecek, Political Assistant, Public Service Alliance of Canada: We recognize the constraints that you have in terms of proposing amendments to the proposed legislation that is before you. That is why we have always taken the position that this should be covered by separate legislation, which would create a separate entity that would report directly to Parliament and would have full investigation powers and would be fully funded in order to do that.

The concerns we have traditionally had with the proposal of having the Public Service Commission play that role in having the provisions contained under the Employment Act are that, on the one hand, we do not think that the commission has a relationship with the rest of the public service that would allow it to be a fully independent, or regarded as a fully independent, investigative body. Also, by having the provisions under the Employment Act, large portions of the federal public service are excluded. We talked about agencies earlier.

That is why we are suggesting that what should be covered in Bill C-25 is a strong provision against retaliation against whistle-blowers and that section 236, which prohibits whistle-blowers from availing themselves of civil action, should be removed from the legislation as well.

Those provisions are important because we see them as a bridge that would guarantee protections for whistle- blowers until separate legislation, which would create a separate agency, can be passed by the House of Commons.

Senator Kinsella: Do you feel that the government made a commitment? I do not want to be political here, but you raised that the Liberals, in the Red Book in 1993, said they would bring in whistle-blowing legislation. They have not done that.

Of course, we still have the GST, and they promised to get rid of that. However, I am not one of the political senators.

There is a common ground. I know my colleagues on all sides in the Senate have accepted the principle — indeed, I think the minister has accepted the principle — that we need a mechanism. I think the minister had a legitimate position in that she wanted to try a policy approach. The events of last spring demonstrated that a policy is simply not adequate. It does not get us into the example-setting role vis-à-vis private-sector whistle-blowing legislation, particularly, as you said, the anti-retaliation provision.

The government gave us a commitment that they would bring in such legislation. They have the resources to study the best model. They can look at your model and at my model and others. If we had a commitment that they would do this quickly, would you be satisfied with that?

Ms. Turmel: I will say that some amendments are still required in this one. However, as I said earlier, after they look at their legislation, they can take out the provision of whistle-blowing and put it back in the new one. I believe it is feasible.

One thing is sure: Even with a commitment from the government, we know that there will be elections pretty soon. That could have an impact. You must have a firm deadline if you want to achieve something.

Senator Kinsella: I am sure that we will hear more on the other kinds of amendments discussed so far as these hearings continue. I must confess it troubles me a bit that we have a deadline indicated. Sometimes, however, for practical reasons, deadlines have to be set, in order to move the work along.

Many Canadians are concerned that the fundamental role of the Public Service Commission is to protect the public interest, which includes things like every Canadian having a right to seek to participate in the Public Service of Canada. You testify that under the present regime there is much favouritism and nepotism, and, no doubt, patronage, in the hiring process. Will this not be worse under this proposed act? What kinds of specific amendments do you think should be made to ensure that the merit principal will be the sustained fundamental principle of the Public Service of Canada?

Ms. Jacquie de Aguayo, Legal Officer, Public Service Alliance of Canada: Our position is set out clearly in the package that we presented to you. However. our most fundamental concern with the changes to merit relate precisely to the ability of individual employees to challenge where favouritism, patronage or nepotism are occurring in the staffing process.

If we understand the role of the appeal process and of the Public Service Commission as an investigative body as being our fail-safe mechanism to allow Parliament and the Canadian public to see what is happening in the public service, the introduction of the definition of merit concerns us greatly. As many of you know, the definition of merit does not exist in the legislation; rather, it has been crafted through the courts to require that, when positions are being staffed in the public service, the most meritorious person be appointed to the position. That is how we are able to say to the public that the people that are in the positions, whether they be front-line workers, scientists or auditors, are really the best candidates for the job.

Our concerns with Bill C-25 are that the definition of merit only requires that the individual exhibit the essential qualifications of the position. There is it nothing in the bill that indicates which qualifications are more important. That leaves us to assume that it is up to the discretion of managers to decide which qualifications will be the essential ones.

We are also concerned that we have an appeal procedure that says that an individual can allege that there was an abuse of authority in the staffing process. However, if the legislation itself states clearly that a manager need only consider one individual for the job, I ask you how anyone will be able to show that there was an abuse of authority. It is perfectly acceptable under this legislation to only consider one individual for the appointment.

That is why, in our proposed amendments, we say that you need to ensure that managers are accountable to Parliament and the public by ensuring that when qualifications are established for a position candidates meet those qualifications. Managers must be held to task to say that they have not chosen someone because of favouritism, that they have looked at panoply of people with panoply of qualifications for a job and have decided that a particular individual is the qualified person for the position.

Senator Kinsella, returning to your concerns about whistle-blowing, again, we point out that if we are delegating the authority of managers to have that much control over the career advancement and promotional opportunities of employees, and we do not have adequate protection in the legislation now to prohibit any form of retaliation — we are not just talking about discipline. An employee who comes forward to his manager and says, ``I think there is some wrongdoing going on over there,'' must not suddenly find himself not getting acting assignments to higher positions, interesting work or being considered for appointment positions. We are very concerned that the definition of ``merit,'' the changes to the appeal process and the limit of the appeal right to an abuse of authority will cause it to be more difficult for employees to challenge what is happening within the public service, whether it be staffing or wrongdoing. By doing that, we do not serve transparency very well. That is where PSAC's concerns lie.

Senator Kinsella: I wish to ask one final question. It is still on the topic of access. As all would agree, access to the Public Service of Canada is a right to all Canadians, irrespective of where they live in Canada.

Are you satisfied that under the present regime, and under the regime that is conceptualized in Bill C-25, the obstacles to opportunity to participate in the public service irrespective of where you live in Canada will be ameliorated? Would they be worse?

Ms. de Aguayo: There are two aspects to that question. The first one is that the Public Service Commission now has the authority to conduct open competitions if it considers that it is in the best interests of the public service to do so.

Under Bill C-25, the statutory preference for hiring within the public service has been removed. The biggest concern of the PSAC is that, as with the current process, open competitions, or external staffing competitions, will not be subject to the same type of appeal mechanisms. Currently, they are not subject to appeal. They are only subject to investigation in the public service.

We come back to our core concern. If the core concern of this committee is to ensure that the staffing mechanisms in Bill C-25 will allow for transparency, which in our view means that there are mechanisms that will allow us to scrutinize the delegated staffing decisions that are made under Bill C-25, we are not sure that they are there.

In our view, the mechanisms to ensure that we have new talent coming into the public service exist. The proposed new legislation will, possibly, prohibit members within the public service from having the type of contribution that they can make because of their years of experience.

We would have an unbridled right to simply go outside the public service. We want to build an expert public service. We believe that the removal of the hiring preference from internal to the public service will not advance that.

Senator Furey: Thank you for attending here today. I want to go back to your concerns about the protection of the merit system. My reading of Bill C-25 leads me to believe that there are quite a number of safeguards built into the bill for just that reason. For example, the Public Service Commission would remain an independent agency, reporting to Parliament, with the authority to make all appointments to and within the public service. The Public Service Commission would have authority to establish conditions for the delegation of appointment authority to the deputy heads, modify or rescind delegation as necessary, set policy regarding appointments, conduct audits and investigations of appointments, and of course a new independent tribunal, the public service staffing tribunal, would provide third- party review of internal appointment complaints.

Would these not appear to you to be safeguards that could help move this bill in the direction that you want it to go in terms of protecting the merit principle?

Ms. de Aguayo: Many of those audit investigative functions currently exist in the public service; yet, we are in a position today of recognizing that we need to have changes to how the staffing process is conducted under the Public Service Employment Act regime.

We are very concerned with the mandate in the preamble, which is to delegate staffing authority down to the lowest managerial levels possible. Unless we have a Public Service Commission that will actively and with great passion use its investigative and audit powers, our experience has been that delegated authority has not been subject to many or serious investigations by the Public Service Commission.

I point you to clause 15 of the proposed Public Service Employment Act, which recognizes that the commission can delegate its powers down to managers. It is our understanding from the discussions leading to Bill C-25, and the stated intention that it create more flexibility for the public service in terms of staffing positions, that it will be exercising that delegation power extensively and liberally.

Senator Furey: It can modify or rescind that delegation as necessary; correct?

Ms. de Aguayo: It can, but as you can see from our brief, our major concern is the definition of merit. We are concerned about a transparent staffing process, having an expert, committed public service, and the definitions of merit and the appeal rights. Employees are, let's face it, our vehicle for ensuring that that transparency exists. If we have a watered-down definition of merit and if we maintain the narrower appeal rights to the public service staffing tribunal, then, in the PSAC's view, we will not get the transparency we are looking for.


Senator Bolduc: If I understand you correctly, you are, generally speaking, concerned by clause 30 in Part 3 on employment. I have read this clause. I have had an opportunity to talk about this issue in the Senate Chamber. I asked Ms. Robillard questions. Basically, merit no longer exists.

I understand that the commission still has discretionary power as far as defining essential qualifications are concerned. For instance, we are told that the commission does not have to consider more than one person for appointments based on merit. Merit and competence are relative terms. If you want to appoint a reasonably good person, perhaps not the most qualified one because, theoretically, this is difficult to establish, it seems to me that the main mechanism is the competition process. If a principle were to be enshrined in this legislation, it would be the law of competition. This is what protects the public from abuse by senior officials. After spending 35 years humbly working in administration, this is my deep conviction. I have seen things happen. I was even President of the Public Service Commission. That being said, it seems to me that we must respect a basic principle. I appreciate that competition takes time. For at least the past 15 years, the commission has delegated all of these responsibilities to the departments. If this process takes time in the departments, it is because of the senior officials and not the employees. When I hear criticisms and I hear that, for reasons of efficiency, the process has to be completed more quickly, and therefore somebody will be appointed just like that, this just does not make good sense. We have completely lost sight of the essence of the 1917 reforms. This will open the door to all kinds of things.

I will give you an example: French Canadians are a minority in the Canadian public service and this is quite understandable because we represent 20 or 25 per cent of the population. I do not get upset about this. Some situations can arise, like the situation in the Canadian armed forces where we do not have our fair share. Take aviation, for example. In a plane, either English or French is spoken, but not both. That concerns me because I know that we are a minority group, not in the army because there is a procedure in force and 25 per cent of the army can be French- Canadian. There is a French-Canadian regiment and it fights and does what it has to do. This is more difficult to do in other sectors. This situation might arise in the senior ranks of the public service and also in other positions.

I am deeply concerned to see that we are allowing the concept of competition to disappear. It seems to me that, when you talk about the relative value of candidates, the only way to proceed is through competition. If there are regional positions in the Maritimes or in Quebec, regional competitions will be held but at least, there should be some type of competition. The value of Canada's senior public service was built — God knows that we have a very valuable system in Canada, particularly at Foreign Affairs and Finance — precisely on the notion of public competition in universities in order to hire the best. This system enabled us to hire the most qualified people in these departments and elsewhere.

Now we are saying that this may happen next year, but then again it may not. That does not make sense. It is absolutely essential that we amend clause 30 and reintroduce the concept of competition for jobs. In a democracy such as ours, how can we not base ourselves on this principle?

Ms. Turmel: I would like to state that we have always deplored the situation and agreed with the government that the federal public service has staffing problems. But we completely disagree with, as you said, the notion whereby we should only assess one of the qualifications and not keep the merit principle in its entirety.

This is very important to us. I think that the best example for the committee members would be what happened to students this summer. And this is only part of the problem we are experiencing.

Allowing a person to decide to meet with only one candidate is indicative of a lack of transparency. This transparency which we talk about will not be achieved in the public service as a result of this process, which will undermine the morale of the public service. This is very important. Surveys have shown that there is poor morale, a lack of respect shown by the employers and a lack of interest in workers in doing their job well. This will add more fuel to the fire.

Senator Gauthier: The merit principle is not in the legislation currently. The definition of merit as such is not in the act but will be in Bill C-25. You do not like this fact and it displeases you. The concept of merit is spelled out in clause 30 and in the following clauses.

What suggestion can you provide? I did not have time to read the brief you presented to the House of Commons. I just received it today.

Ms. Turmel: As far as we are concerned, it is very important that the merit principle recognize the quantity and qualifications of the individuals who may apply for a position. Stating that only one qualification can be given consideration without defining what these qualifications are is problematical. If you require the services of a person in the federal public service, you have to ensure that all individuals are shown proper respect and that an assessment has been made of merit and qualifications.

The definition gives managers some latitude in deciding whether or not they want to hire an external person without going through the internal staffing process. That goes against all the principles that we are defending.

There is also the entire problem of training within the federal public service, a problem that we have denounced over the years. If you want to prepare successors in the federal public service but do not provide training, and if you staff from outside, you can just imagine what the morale within the public service is like.

Senator Gauthier: I completely agree with you, but with all due respect, your press release is somewhat alarmist. You have said that the merit principle will be diluted in the new legislation. On the contrary, it will, in my opinion, be more specific. We do not agree on that issue.

A manager who does not respect the merit principle will not inspire confidence in others. This manager will be treated in a very special way. Public servants who see that they are dealing with favouritism will probably avail themselves of their right to complain, and justly so, in order to obtain equity.

I don't think that it works that way. Rather, I think that a good public servant must have the respect of his or her subordinates. In order to do this, you need to be fair and equitable. I do not always pay attention to your announcements, but I think that could paralyze the system. I think that you are exaggerating a bit.

I would like to go back to the issue of grievances. In 2002-2003, the Public Service Commission made more than 100,000 appointments. Of that number, 70,000 resulted in a grievance. Of the 70,000 appointments, 1,300 official grievances were filed with the Public Service Commission and approximately 125 of these were upheld.

It was therefore determined that a few hundred of these 100,000 appointments were not really acceptable. That indicates that we must not get upset with this situation. That is quite normal. It is a system that works well.

Prior to an election, you do something to stir the pot and I don't blame you. We heard all kind of rumours and allegations this summer, whether it be about the case of an official who had reportedly cheated the system by paying himself with checks to which he was not entitled, or about the case of a misappropriation of funds.

Earlier, you talked about student patronage. I have not seen any specific cases today. A layman could not claim that there has been favouritism. This has not been proven.

Let us take the example of an employee who performed his duties well, and whose position the manager decides to staff. Why could this individual not be chosen by the manager? You're saying that this is not fair. There is, nevertheless, a system in place and employees can appeal during any stage of the manager's decision. However, employees rarely intervene in the decision- making process. Could you answer these questions?

Ms. Turmel: I will begin and my colleague will continue. When Canada Post employees were put under the Canada Labour Code, it was said, at that time, that there would be major problems with respect to staffing and classification because these issues were now on the bargaining table.

At Canada Post, we don't hear about the problems that we have in the federal sector. We think that the legislation should contain some guidelines, defining what is meant by patronage and favouritism. Then the second part could be negotiated at the bargaining table in terms of staffing and classification, which would completely change the staffing process. That would certainly help the federal sector.

Senator Gauthier: Can you negotiate classification now?

Ms. Turmel: We may achieve better results than what the government is currently able to obtain. Classification has been reviewed for 20 years and this has led nowhere.


The Chairman: We cut into the time for these witnesses early on with our discussion, so I will grant a few more minutes. There are three senators on the list. In consideration for each other, I hope you will keep it brief.

Senator Milne: I am concerned about your concerns about adding to the legislation a definition for merit. In the Senate, we are fairly regularly bombarded with statements that we should not allow the courts to write legislation or to define issues such as this. You are telling us that we should allow the courts to define merit. The present situation in the civil service seems to be hamstrung by the fact that it takes so long to go through the selection process. Many young professionals are turned off by the entire thing. Thus, there is no renewal of the civil service, which I think would be good for the country and everyone in it.

I have some real problems with what you are saying about merit. I think that you are trying firmly to come down on both sides of the question.

Ms. de Aguayo: If you review our briefs for the Commons committee and the Senate, I do not believe you will find in the PSAC position that there ought not be a definition of merit or that the courts ought to continue to be the mechanism that assists in defining merit. The fact that the courts do it now is a result of how Parliament in the 1960s drafted the legislation; it simply said the most meritorious person should be appointed, in essence. It has been left to the courts to decide how selection boards and managers, through the selection process, can choose the most meritorious candidate.

The PSAC position does not suggest that there ought to be no definition of merit but rather that the definition that has been chosen is one that will not result in a public service that is characterized by having the highest qualified candidates in positions and that the definition itself gives a lot of room for managers to engage the process in such a way that they are able to appoint a pre-chosen individual to a position, rather than, as Ms. Turmel has already said, looking at the individual based on all their qualifications and deciding if this is the right person for the job.

As you know, the PSAC has long said that it is a cumbersome process, but we ought not to get confused between having an inefficient and cumbersome competition and selection process and an appropriate, nuanced and useful way of defining what merit is, such as to allow employees to know what the rules of the game are, allow the public service staffing tribunal to enforce those rules, and allow Parliament to satisfy itself that the staffing process has been based on a transparent process.

Senator Milne: It seems to me the present process leads basically to what is a closed shop in the civil service and what the public perceives as a closed shop in the civil service. Young people say, ``Why bother? It will take nine months before I know whether I have a job or not, and then they will not pay me what I want, what I need to have or what my training leads me to have or where I should be appropriately.'' An individual has to come in at entry level rather than where he or she might appropriately be within the system.

How would you speed this up?

Ms. de Aguayo: I do not have all of the solutions. The concern that we have expressed — and I will leave it to Ms. Turmel — is that we are throwing the baby out with the bathwater.

Senator Oliver: My questions are brief. The Public Service Commission now is staffed by three commissioners. This bill would reduce it to one full-time commissioner and a group of part-time commissioners. It has been suggested to us as a committee, by one group, at least, that this may give way to the possibility of patronage, that control at the top would become political control rather than the kind of accountability that we would like to see. I should like you to comment on that, please.

Ms. Turmel: The problem we have with this one is that we do agree that having part-time people as commissioners will not help. They are full time right now. Having them available to start with, and making sure that they are up to date with all the available information, files and everything, we need to stay with full-time commissioners. The possibility that the proposal will lead to patronage in appointing people is one of the major problems that we raise. We need to have whistle-blowing legislation in place to ensure that what is happening at all the levels of government is open, transparent and clear, so that it is not different there.

Senator Oliver: A group called the external advisory group on embracing change prepared a submission dealing with the lack in Bill C-25 of language that deals with representativeness and diversity. That group feels that that language should appear in more than just the preamble. Could you comment on their concerns? What is PSAC's view?

Ms. Turmel: On this matter, I met with them, too. The staffing process will not help the equity group. That is my view on this one. If you have a member or worker with a disability, and you have the right to decide which person you want and you do the least, just meeting with one person, what are the chances of those persons getting a position inside the federal sector, knowing that they might need special accommodation or a little more time, when everything will be about productivity and ensuring that the manager looks good? It will not help.

Is it a question of language? Is it a question of equity? I think it will be a major problem inside the federal sector; I do not think that the manager or the government will reach the goal of being representative of the population.

Senator Oliver: Therefore, are there any amendments or recommendations that you would have to ensure that the representative principle is enshrined? What would you recommend?

Ms. Turmel: We supported many years ago one in five, ensuring that we have one out of five. They wanted to go outside to hire new equity persons. We explained what was wrong because we knew that most of the equity group were at the entry level or were term employees. They made that change, which is good. They should go back to that. Already they have reached their goal on this and they wanted the new legislation.

Senator Ringuette: I have one question. One of my main concerns is the geographic limitation that we have on public employment jobs. I can understand that you have not brought this up in your documents or preoccupation because, whether the person comes from Halifax, Calgary or Ottawa, they are still paying you the same union dues. However, what puzzles me is the fact that in Bill C-25 there is an entirely new tribunal dealing with internal complaints, from your people, and yet I do not see in your presentation any comments from you on the issue of this new tribunal. I cannot believe that within your current union people you do not have people who would like to make complaints in regard to these geographic criteria.

Ms. de Aguayo: The current legislation has provisions that allow employees to challenge the geographic criteria for competitions in the public service, and the PSAC does provide representation to its members to challenge those. The problem is that the Public Service Commission Appeal Board is not the body that deals with it. The Public Service Commission in its investigative function deals with it. I am assuming that under the current bill a similar provision will exist. We certainly have taken complaints. For example, I am aware of complaints that we have done in the east where the geographic limitations were left within one city. In a fairly small province, that makes no sense. The problem, and this may turn back to Senator Milne's concerns about how we streamline this process, is that there is a tension between placing geographic criteria to a competition process and maintaining a selection process that is not overly cumbersome and national in scope. If you have selection boards that have to travel across the country or you have employees that need to travel across the country, these are decisions made at the management level. If you look at the submission that we made to the Commons committee, we do have some concerns about the staffing tribunal. We are quite happy, however, that the tribunal now exists to deal with human rights allegations. However, in our view the mechanisms exist to challenge the geographic criteria. They exist under the current legislation.

The Chairman: Many thanks to the witnesses for their presentation. Thank you for responding so fully. Thank you for leaving the draft amendments. No doubt we will see you again.

Honourable senators, our next witnesses are from the Association of Professional Executives of the Public Service of Canada, represented by their President, Mr. Bob Emond, and their Executive Director, Mr. Pierre de Blois.

I call on Mr. Emond to proceed.

Mr. Bob Emond, President, Association of Professional Executives of the Public Service of Canada: Mr. Chairman, honourable senators, it is indeed a pleasure for the Association of Professional Executives of the Public Service of Canada to appear before your committee this afternoon.

Having heard some of the previous presentation, I will be able to cut out parts of my statement, although I understand that you have it in front of you.

The Association of Professional Executives of the Public Service of Canada is dedicated to advancing leadership excellence within the public service. Our members represent a cross-section of disciplines and functions, from federal departments and agencies in all regions of Canada and abroad.

There are some 3,800 executives in the public service, about half of whom are members of the association.


Executives wear two hats. They are employees, with expectations about how they will be hired, treated, compensated, developed, promoted or released. They are also leaders and managers concerned about the working environment and working conditions of their employees. They want to see more efficient human resources management systems, along with clear, straightforward policies and accountabilities.


Our position can be summarized in 10 principles. I will take you through them quickly. I should also like to underline something that was mentioned by the chair, namely, that since the 1960s we have been living with the current legislation, with some minor amendments. We fundamentally believe the time for reform is here.

We believe the system must be based on values. We are particularly pleased that the preamble to Bill C-25 contains statements of values and that values are woven throughout the entire bill. This is an important step in the right direction and should produce a new era of values-based human resources management.

I will take but a moment to state the association's position on recent comments about bureaucratic patronage and unethical behaviour on the part of a few public servants. APEX takes these reports seriously. We believe that any member of the executive cadre guilty of unethical behaviour must face appropriate consequences. We are fully aware of how badly these few cases reflect on the integrity of the vast majority of our members and the public service as a whole.

Of course, the media focuses on the exceptions rather than the rule, which creates an unfortunate impression in the public mind. Our members are proud of the values they hold and actively embrace them in daily activities. As an association, we have always vigorously promoted solid public service values. Some years ago, we published a statement of principles that we expect our members to uphold.

We applaud the government's initiative to remind public servants of the appropriate values and ethics through the package being distributed currently throughout the public service. The events of this past summer have heightened the interest in enacting whistle-blowing legislation. We understand the concern. However, we do not think it advisable to incorporate provisions on whistle-blowing in Bill C-25.

Protecting employees who flag breaches of ethics is an issue of vital importance that deserves to be fully explored. As you may know, the government has a relatively new policy in place; it contains a commitment to evaluate the impact within three years.

Within the next couple of weeks, the Public Service Integrity Officer will be tabling his first annual report. His recommendations for interim revisions to the policy should receive careful consideration, along with others. However, the public service is ready to move now on the reforms contained in Bill C-25. It would be a shame not to see those reforms brought into legislation and implemented.

I was particularly struck by the proposal to implement whistle-blowing legislation through amendments to the bill. While we as an association favour a strong regime, we are not sure that we should implement it without careful thought. We are also very interested in the role proposed for a public service commissioner. In fact, in our own position paper we argued strongly for a stronger oversight role for the PSC.

Finally, we believe that should the current policy be declared inadequate or insufficient stand-alone legislation would have a greater impact.


Full responsibility for, among other things, all staffing and classification activities must be delegated to deputy ministers and from them to managers, along with clear accountability mechanisms.


Clear accountability is a key concern. It was mentioned several times earlier this afternoon. It is with this in mind that we support the greater delegation and thus greater accountability of deputy heads and managers throughout the public service who do virtually all the staffing. It is for this reason that we applaud a strong Public Service Commission. We do believe, however, that reforms must be made to the system in a manner consistent with the proposed bill. Protection and modernization of the understanding of merit must be assured.

Finally, as has been mentioned earlier, we must find simpler, more efficient ways to recruit to the public service and to promote from within. With the public service competing directly with private and parapublic sectors for highly skilled people, we can ill afford to continue to live with a staffing system that was designed for a labour market of 40 years ago. Executives want to be able to hire, with as little delay as possible, someone who is fully qualified to do the job.

Personally, I believe that is what merit is all about. Executives should be expected to be assessed on how well they do this. It makes sense for them to ensure that the processes they use are fair, transparent and equitable for reasons that have been previously mentioned today. Otherwise, on an internal appointment, the choice of the candidate will be appealed. There are appropriate mechanisms built into the proposed legislation that is before you to assure that the fundamental principles are respected.

At the end of the day, who can best determine the team's need? Increasingly, the public service is changing. It is no longer the hierarchical top-down structure that it was years ago. It is made up of teams. Young people, in particular, expect to work in that kind of environment. We would argue that it is the executive on the ground, working with his or her own team, not a third party. The idea that greater flexibility in the selection process would mean that people are going to hire their brother-in-law, I find quite nonsensical. I believe that suggestions of rampant bureaucratic patronage in the public service are exaggerated, insulting and misleading. I have worked for the public service for almost 31 years now.

We feel this bill has the balance to ensure that we identify and correct any practices that contravene the values that underpin it.


I must say that releasing an employee should be a simpler, less onerous process, based on competency and demonstration of values. The proposed legislation goes a long way to better balance the rights of employees with those of the employer. Executives think that managers might be less risk-averse in their staffing decisions if moving an employee, at any level, who does not contribute to the organization's objectives were made easier. By the same token, deputy heads should have more flexibility to use monetary incentives to terminate the employment of a poor performer, as long as it is clearly in the interest of the public service.


The evaluation of executives and managers must increasingly be focused on results and the way that those results are achieved. Effective people management is critical to the Public Service of Canada, and the employees of the public service are really its only resource at the end of the day.


This legislation will gradually allow greater mobility between the core public service, the agencies reporting to Treasury Board and separate agencies such as the Canada Customs and Revenue Agency, which has 55,000 employees. Given the very competitive labour market, this flexibility will be a true asset.


Statistics on the number of staffing transactions, the number that are challenged, the numbers where appeals are upheld, have been cited. We would only add that an appeal delays the appointment of an individual for a considerable period of time, notwithstanding that in the vast majority of instances the appeal is in fact rejected. That is a job that potentially could remain unfilled.


We support the proposed changes with respect to management-union relations.


We are very pleased, and believe our members will be pleased, with the fact that labour-management consultation committees must be established pursuant to the legislation, and we believe the principles enunciated in the statutes before you will result in a more effective coordination and consultation at the lowest levels of the organization in the workplace.


Finally, we suggested in our document that the employer, namely Treasury Board, should be mandated to be the Human Resources Policy and Planning Centre for the public service of Canada.


We believe that this delivers clear accountability for human resources management, and running through the chain the delegations and the attendant accountabilities must be implemented and implemented effectively.


There is also the Learning Centre bringing together all training activities, namely the...


...the staffing and development branch and the Canadian Centre for Management Development. Potentially, in future, this could lead to further integrations of training organizations, such as training offered in official languages.

In closing, I should like to, once again, express APEC's support for Bill C-25 and stress the urgency, this time around, to try to put meaningful reform legislation into effect. We have seen a number of royal commissions on financial management and accountability argue for reform to the federal public service. Unfortunately, reform still awaits us.

We believe this legislation, at this time, is a major step in the right direction. There have been many good intentions. We believe the time to act is now. That is not to say that the proposed legislation is, perhaps, perfect, but it is an elegantly constructed piece of work and our members believe that it is an important step to take to modernize the public service so that public servants can continue to provide services to Canadians. Members of the executive group that I represent are deeply committed to maintaining and, to the extent that we can, enhancing a professional public service.

I would be pleased to respond to any questions.

The Chairman: I have one matter for purposes of clarification. I think it is fair to say that the previous witnesses from the Public Service Alliance of Canada agree with you that whistle-blowing should be the subject of separate legislation. However, they have proposed one amendment to this bill simply to provide that neither the employer nor a person acting on behalf of the employer shall discipline or retaliate in any way against an employee who has raised allegations of government or departmental wrongdoing. Are you opposed to that amendment?

Mr. Emond: My recollection of the policy that was put out by Treasury Board in November 2001 does make that kind of statement. Far be it for me to argue for something that does not protect employees of the public service against retaliation.

My personal concern and the concern of the association is that we would hate to see Bill C-25 fail on the basis of timing.


Senator Bolduc: I agree with your principles and the way that you have expressed them. You are advocating a decentralization of management in the hands of the deputy heads. I agree with many of the points that you raised.

The problem in the public service system arises from the fact that there are public policy principles that need to be expressed. You talk about values, but there is an administrative process within the recruitment, selection and promotion process. When we get to this process, we are talking about instruments. It seems to me that these instruments have to be tied to some reference point, to something.

In the area of recruiting, if we want to consecrate the principle of democracy, equal opportunity for government jobs, this principle must be mentioned in the law. A student who thinks he is smart is entitled to apply. That has to be stated somewhere. In Canada, university graduates are recruited through a public competition. I am talking about people outside of the public service who want to enter the public service. This is a basic principle.

The second principle is more or less the issue of striking a balance between the effectiveness of deputy heads and the process that will protect candidates and ensure that everything is done equitably. The public wants to be protected. We want to have the best diplomats in Foreign Affairs, the best economic policy advisers at the Department of Finance and good people at the Bank of Canada. We want the best! If we want the best, we need to use the means that will allow us to achieve our goals. When recruiting outside of the public service, graduates should have an opportunity to compete on an equitable basis. This is a public competition, we know that there are positions and the best people will be chosen. There is a competition, relative value is established and candidates are appointed based on merit. This is one aspect of the issue. This is about renewing the public service and, eventually, the executives.

We also need to discuss the promotion of public servants from within the public service. Promotions and advancement are done on a departmental basis. We want mobility, not only between government agencies but also between departments. To do this, we have to, one way or the other, know that there is a vacancy. The best way to measure the relative value of candidates is not given any consideration in this bill. We know that there need to be values, and merit. And merit, when it comes to an administrative process, needs to have some reference points. The public is entitled to make sure that there is a real process and, if not, that there will be an appeal. A great deal of emphasis has been put on this point. Moreover, I mentioned this to Ms. Robillard and she seem pleased because the Public Service Commission will become a monitoring agency. I have no objection to that.

Feedback from a monitoring agency is an important aspect of the system, and a guarantee. Nevertheless, this is not the essential element. What is most important is that the administrative process abide by the rules that pertain, among other things, to outside competition, for people who wish to secure employment within the public service, and to internal competition, for people who apply for an appointment.

Let us take the example of an economist, who has some seniority at the Department of Finance, who applies for a director general position. There is, of course, the whole issue of career planning, but it would be desirable that this economist have an opportunity to apply for the job along with other candidates, even though the final decision lies with the bosses. However, we do need criteria. Although this principle underlies the mechanism, it does not appear anywhere in the legislation.

As for decentralisation, I share your opinion in all particulars, providing that there is no bureaucratic favouritism. In theory, everyone is honest and above-board but, in practice, that is not always de case.

The act should therefore guarantee this principle. Unfortunately, this current principle is not reflected in the legislation. The federal public service was not built on such a bill. I would like to hear your comments on this issue.

Mr. Emond: I find it hard to understand why you seem to conclude that there will be no more competition. Even today, when we recruit university graduates, we are looking for the best candidates. In my opinion, this process will not change. Nevertheless, we are not in favour of including these administrative measures in the bill. Indeed, principles are important. We believe that the system will be transparent because recruiting and promotion policies will be established. At the end of the day, we do not believe that there will be a compromise. It makes sense to recruit university graduates throughout the country and to hire the best graduates for positions at the Department of Finance and Foreign Affairs. However, if you need to staff a CR-03 position, is it necessary to spend the same amount of time and money? That is why we are advocating an approach, as provided for in the bill, that allows for flexibility. I do not believe that you will see a decrease in competition mobility. There will be some flexibility.

The document that we have tabled illustrates somewhat how this system could work. You establish a list of prequalified candidates, you look for individuals having the relevant competencies and then you make an appointment. This procedure would make it easier to establish stronger teams and it would help us to more quickly achieve our objectives of having all Canadians, particularly visible minorities, participate.

Senator Bolduc: You are of the opinion that there will therefore be equitable treatment as far as the advancement of Canadians and civil servants is concerned.

Mr. Emond: That is my opinion. I spent eight and a half years at the Public Service Commission. At the time of the d'Avignon and Lambert reports, I was the director of auditing operations. Both our association and I feel that it is very important that there be a clear accountability framework where it will be possible to correct the behaviour of those managers who make mistakes, and in the case of deliberate errors, where required action can be taken.

Senator Gauthier: I am presuming that few members of your association are unionized? Most members are not unionized?

Mr. Emond: None are, no.

Senator Gauthier: I would like to go back to the issue of whistle-blowers and the Honourable Senator Kinsella's bill. I support this bill. Nevertheless, I do have some hesitation about whether or not this issue should be in the form of an amendment to Bill C-25 or a specific bill dealing with whistle-blowers, and in particular, their protection.

Since June, we have received a great deal of media information and allegations from employees and managers about systemic problems. Some were claiming that the system did not work. It is therefore important that we pay particular attention to this issue. Would you be in favour of an amendment to Bill C-25 on whistle-blowers?

Mr. Emond: Our association has not examined this specific issue. I cannot say that we would be against such an amendment. Given the time limits, we are nevertheless concerned about this possibly causing a delay. We believe in the principle of protection. Should such a bill be required, we believe that it should be a separate piece of legislation.

Mr. de Blois: As Mr. Emond indicated, we are not against such a principle. Public service executives are in favour of some legislation on whistle-blowers.


We are definitely in favour of some legislation, as our president has said, for a number of reasons. The proposal put to us by Senator Kinsella raises many questions about whether that commissioner should be at the Public Service Commission and about the Privacy Act. It presently raises more questions than it answers. If this bill is to be considered a serious piece of proposed legislation, which it is, then we should not rush into it. That is our dilemma. If we were to rush into it because we fear losing Bill C-25, then we would not be providing due process to this bill.

The Chairman: Mr. de Blois, I have already expressed myself on this issue. We do not have an amendment to this bill from Senator Kinsella before us now. Rather, Senator Kinsella has an amendment to a separate bill; and that is another matter. We have one amendment before us from the Public Service Alliance Commission.

Please leave the question of parliamentary timing to the good judgment of the members of the committee and the Senate. Please address the question of substance, if you wish, in respect of the amendment from the PSAC. Please be assured that we know what we are doing in terms of timing, and do not take it upon yourself to make judgments about the parliamentary schedule and what may or may not be there.

Mr. de Blois: I am sorry that that is your understanding of my comments. I thought that we were to comment on whether we found Senator Kinsella's amendment appropriate. I think it raises more questions than it provides answers.

The Chairman: Yes, Senator Kinsella has an amendment to a separate bill that is another matter. If he has an amendment to Bill C-25, we will hear about it later. To date, I have not heard about it and the committee has not heard about it. We have one amendment on this subject and it is from the PSAC. I asked Mr. Emond about it earlier and, again, he raised the question of timing and the parliamentary schedule. Really, do not make that your concern. Rather, leave it to the parliamentarians to judge.

Mr. Pierre de Blois, Executive Director, Association of Professional Executives of the Public Service of Canada: On the matter of the PSAC amendment, I think we have answered. We listened to the previous debate before we spoke and we thought that that is where we were with the Senate.


Senator Gauthier: I believe that there is an agency responsible for monitoring the integrity of the public service, under the direction of Mr. Edward Keyserlingk.

Mr. Emond: Correct.

Senator Gauthier: Moreover, Mr. Keyserlingk must table his first annual report by September 15. Integrity will be covered in this report.

Senator Kinsella has already discussed the issue of whistle-blowers in the committee and the committee has spent a few hours on the matter. I believe that the bill died on the Order Paper. Mr. Emond, do you feel that the current content of the bill is satisfactory or do you feel that we should draft another more specific, comprehensive or targeted bill?

Mr. Emond: I think that if you intend to go forward with whistle-blowing legislation, it has to be carefully crafted. I had an opportunity to review Senator Kinsella's proposal. We feel that special legislation is required. Are we opposed to the amendment? According to what we have already said, it seems to me that the answer is no.

Senator Gauthier: That is what I wanted to hear.


The Chairman: Leave it to us to work out any problems with the parliamentary schedule. The reason we are here two weeks ahead of the other senators is precisely to complete the study of this bill. Do not worry about it; we will work it out among ourselves, whatever we decide.

Senator Ringuette: I appreciate your comments. However, I do abound with the same comments and line of thought as Senator Bolduc. I was told in July that only 4 per cent of government departments have human resource plans in place and approved. I look at the delegation of power and that frightens me because we are delegating power to 96 per cent of people who do not know their needs.

I also look at the status report from the Auditor General tabled this May in regards to young people entering the public service. The Auditor General says, with respect to the Recruitment Action Plan published in July 2000, and may I quote here:

In the two years since, the government has set no comprehensive targets, even though several occupational communities are at risk because people with the right qualifications are in short supply.

She goes on as follows:

For example, when the Commission delegates authority to departments for external recruitment, they use the program less.

She is referring to the Post-Secondary Recruitment program.

The Auditor General goes on to say:

...although the government has yet to determine what will happen to centrally run programs under the new legislation, which proposes the delegation of staffing authority to departments.

The report goes on to say:

...managers still use term hiring for expediency despite the opportunity to hire for indeterminate positions from a pre-screened inventory —

This further indicates the concerns of Senator Bolduc.

I have before me a piece of paper, a sample of 12 per cent of the departments. In regards to all appointments, only 54 per cent of them were through competition, meaning that 46 per cent were done without competition, and out of that 46 per cent, 96 per cent were done without any human resource planning.

We are asked to support greater flexibility and greater delegation within the public service that, from the statistics that we have, have no human resource plan. The viable, the most important hiring programs, the post-secondary hiring program, is not being used. The post-secondary program is probably the only program that competent young adults from either Atlantic Canada or Western Canada have the opportunity to integrate, because of the geographic criteria of employment.

Therefore, as you can imagine, I am very upset about Bill C-25. I do not agree with your comments in support of it because there is a lot of foundation groundwork that needs to be put in place before we go ahead with Bill C-25. Can I have your comments on mine?

Mr. Emond: Well, I cannot comment on your statistic concerning the departments. I could only say that surprises me, having worked in a number of departments.

However, perhaps I can explain why the association favours delegation to managers with accountability.

I would suggest that part of our problem today in the public service in terms of human resource management is that managers do not buy in. They see this as a process run by human resource administrators, and I use the term advisedly, who do not relate to their operational needs. I am not surprised, by the way, with the statistics on the commission delegating and therefore there is a consequential drop in the central programs. Departments, DND being one of them, recruit specialists — defence scientists are a very special niche market. We are able to go out on campus and interview not just one person, but many people. So that does not surprise me in terms of the drop.

Finally, in your concerns there seems to be an assumption that there will be no policy direction provided — the deputy ministers. I do not read Bill C-25 to say that. I do think there will be, as I think was mentioned earlier by one of the members of the committee, conditions attached to the delegation. I am sure that, in the best interests of the public service, there will be centralized recruitment programs. I would hope at the end of the day, though, that the managers of the public service engage more directly and see this as part of their fundamental responsibilities and not as — in terms of human resource planning, to use an example — something remote for specialists.

Senator Kinsella: I should like to focus for a moment on your observation concerning the integration of the training that is envisaged by Bill C-25. You rightly indicate to us that while the CCMD and Training and Development Canada are going to be joined, the language training school is not integrated in this bill, although you point out, I think to use your words, that the legislation leaves the door open for a future integration of the language training school.

Why not put the language training school into this unified training model now? Why are we waiting to do that?

Mr. Emond: Senator, I cannot answer the question. Possibly the drafters were motivated because we had the Canadian Centre for Management Development, which was a pretty centralized institution here in the NCR. We had the former, and I go back to the old days, staff development branch of the Public Service Commission that offered training across the country, et cetera. There was much compatibility between those two functions, but I do not see over time why that would not occur. Perhaps, it was just too much in one go.

Senator Kinsella: In principle, your organization supports the integration of the language training school. I refer to your testimony in written form. You say the following:

Just as APEX believes that one central body should co-ordinate all HR management, the same principle can be applied to the learning activities of the Public Service —

which is why I am rather surprised.

The official language training program has a long history. When I was a deputy minister, I saw it work very well. It was something of which we could be very proud, as indeed there are many things we are very proud of in our public service. Why could we not have simply given the importance of official language in our society and in our public service in the legislation? Why not put the language training school together with CCMD and Training and Development Canada in the legislation.

It seems to me that it gives kind of a legislative perception that official language training is somehow less or not as important. My position is that it is as important as CCMD and as important as Training and Development Canada.

Mindful of the admonishment of our distinguished chair, I will not talk about the parliamentary timetable. However, why do we not get this right? That is our intent, and you support the principle.

Would you say that you support the principle that the language school should be part of this?

Mr. Emond: It makes sense to us. Bear in mind that the association is not saying that this is perfect legislation. There may be tinkering. That is why the bill contains a clause for revision, as do many statutes these days.

If you have an opportunity, read our position paper, which was issued in 2001 after five years of intensive consultations. We also foresaw a slightly modified role for the Public Service Commission than that contemplated by the legislation.

I refer to my comments in terms of oversight. We saw a strengthened oversight mandate. Frankly, I was interested to read in Senator Kinsella's bill the role provided for a Public Service Commissioner that is not far off a vision that we could foresee.

Basically, we are saying that if the government chose through a machinery change to include language training as part of a quite broadly expanded mandate for learning in the public service, we would support that, of course.

Senator Kinsella: In a modernized 21st century public service, do you believe, as a matter of principle, that the Public Service Commission must play a role of recourse? There are so many different areas in which the commission would be a recourse that the Canadian citizen is able to seek a review of having been excluded from having access to public service at the entry level or recourse in staffing issues.

Do you think that in the 21st century the Public Service Commission exercising a recourse function is still important?

Mr. Emond: Yes, we do. If I could simply repeat what we say in our position paper, and this we were saying in the context of the senior public service, to guarantee the continuing impartiality of the senior public service, we must have a strong parliamentary agency that ensures oversight and merit without any direct operational role. That is the position that we took in our position paper.

A distinctly independent of operational responsibility parliamentary agency, in my view, could fulfil all of the roles that you have described, which I think are provided for in the context of the bill before you. It would even go further as potentially a place to house the whistle-blowing responsibility.

Senator Mahovlich: A question to Mr. Emond. He has had 31 years of experience with government. Has he ever recalled a whistle-blower that was promoted or rewarded? Are they all looked down upon?

Mr. Emond: In my experience, from time to time, I have seen attempts to take retribution in various inappropriate ways. However, I have not seen senior management deal with the situation when discovered either directly, through the back door or potentially from a union representative. The vast majority of public servants — senior, intermediate and clerical — with whom I have dealt have been professional, honest, respectful and tolerant of their colleagues.

I will not sit here and say that I have never seen attempts, and I will not sit here and defend managers who either misbehave or take that kind of an approach. I will not do it.

Mr. de Blois: You were asking the opposite. You were asking if a whistle-blower has been promoted or recognized. I also have 33 years in the public service. On numerous occasions that are easy to document, rewarded employees who came to me with issues of inappropriate behaviour or unethical behaviour by either colleagues or other people have prospered in the system. Most executives and most managers want to do public good and the right thing. If you approach them, they will do the right thing.

It does not mean that we do not need the legislation. The workplace is not just black and white all the time. It is people using their better judgment to try to do the job that they are mandated to do.

When we hear about whistle-blowing, we get a sense that we are trying to paint executives in the public service a certain way. That is why we take some objection. To answer, yes.

Mr. Emond: I would echo that.

Senator Cordy: Thank you very much. I read that the average age of the public service is higher than that of the Canadian workforce. I do not have formal statistical evidence, but I do know that my two daughters are recent university graduates and neither they nor their friends talk about having a career in the public service. That is unlike our generation, where a number of people upon graduation looked particularly for federal government jobs.

One reason for not considering work in the public service is the length of time they have to wait before hearing whether they are the successful candidate. They cannot afford to wait because they have student loans, and they all like to become independent and move out of their family home, as parents would also like them to do.

We should have a simpler way of recruiting faster while following due process. You mentioned that this afternoon.

We have all read about cases of patronage. I agree with you that it is the matter of a few cases being in the headlines time and again. The reputations of the many excellent civil servants have been tarnished because of the few.

You spoke about clear accountability in the hiring process. How will Bill C-25 provide clear accountability to the Canadian public to let the Canadian public feel that the best candidates for the jobs are, in fact, the ones being hired?

Mr. Emond: The bill requires annual reports to be tabled. I think that is a very effective means, provided they are written in a way that is understandable to citizens, to provide some transparency both by the Treasury Board and by the Public Service Commission. I think that is a step in the right direction.

At the end of the day, it will be the job of public servants, and senior public servants in particular, to ensure that the Public Service of Canada is highly respected so that there is a confidence built in. We talk so much about accountability of managers. If there are transgressions, particularly deliberate transgressions such as a case of patronage, then that case should be dealt with expeditiously and, in my view, reported publicly. I think it is the only way we will do it.

I would hope that the strengthening of the Government Operations and Estimates Committee in the House will provide an effective forum for ensuring that the word gets out.

Mr. de Blois: I should like to give an example of why we say we think Bill C-25 gives even more checks and balances, coming back to what Senator Ringuette raised earlier. She was concerned about nominations without competitions within the public service. You have to understand that many of these are term employees being re-nominated for another term, so we are not talking about large competitions. In the present act, you cannot make an appeal for a nomination without a competition, whereas in Bill C-25 you can, so there are a number of checks and balances throughout this legislation that address some of these issues. That is why we keep talking about having to delegate, but we want clear accountability and the checks and balances in the system. That is the only way to make it work properly.

Senator Milne: In response to Senator Bolduc's comment about how a person from one department finds out what is available in another department, I believe that the Public Service of Canada has a Web site where anyone, once they become a member of the civil service, can look up hundreds of job opportunities and competitions for which they can then try. That is only open to people who are already members of the public service. It is not open to the general public. It is not open, for example, to our employees. Senator Cordy's assistant does not have access to that to be able to apply for a public service job or position.

I am interested in one of your last recommendations:

APEX therefore recommends that the majority of policy and programs positions in the new agency be rotational.

This is something that is happening all the time in industry today. Middle management is constantly being rotated between one position and another. From my point of view as a senator, the rotation that I see within the civil service is usually at the very top levels within a department, and perhaps at the deputy minister level between departments. I do not see a whole lot of evidence of this cross-disciplinary experience that I think is so necessary and valuable. Perhaps you can tell me if this is happening at lower levels, and, if so, how much it is happening.

Mr. Emond: I will leave the specifics for Mr. de Blois, who I believe has data on the executive group. On the issue of the Web site, it is my understanding, certainly for internal jobs restricted to ``public servants,'' that there is a Web site, and, for example, EX-1, EX-2, or EX-3 jobs are posted. For the general public, including employees of Parliament, my understanding is also that the commission does run a Web site for replenishing inventories and for public postings, but I think it is an area of competition decision in terms of the Web site structure.

Mr. de Blois: The last statistics we had were given to us from the Public Service Commission, and there is certainly not enough mobility between agencies at any level.

Senator Milne: You have silos. Each department is a silo, and to break down these walls, you need to have people moving between them.

Mr. de Blois: Yes, you need people moving between them, and you need better human resource planning, and you need the tools to do it, which is why we have been recommending that all of the HR management authorities and responsibilities be given under one roof. Right now, they are spread all over the place. If you had that at the employer, the Treasury Board secretariat, we are hoping, although we cannot predict the future, that we would have better HR planning and therefore increased mobility within the public service.

The Chairman: Thank you both for bringing a very important perspective on this bill. On the matter on which we had a brief argument, I appreciate your concern to see the bill go through, but you will appreciate our concern. The concern of the chair is to protect the prerogatives of the committee and of the Senate against unnamed sources telling us that if we dare think of changing a comma the sky will fall. I am especially sensitive to that at a time when we have brought these people from across the country two weeks early precisely to facilitate the legislative process. That is the point of view that I wanted to express. I thank you very much for answering so fully the questions and for your presentation today.

We will now hear from the Professional Institute of the Public Service of Canada. Let me state, for the record, that the institute was founded in 1920. It is the largest multi-professional union in Canada, representing some 42,000 public service professionals employed by the federal and some provincial and territorial governments. The institute is a bargaining agent for more than 39 knowledge-based groups, and it negotiates with 22 different employers in six different jurisdictions.

Those of us who have been around for a while certainly know Mr. Steve Hindle, the president of PIPS, who is accompanied by Robert McIntosh, policy advisor. A brief has been circulated, and I take it that there will be a brief opening statement. Please proceed, Mr. Hindle, and I apologize for keeping you waiting.

Mr. Steve Hindle, President, Professional Institute of the Public Service of Canada: The legislation before this committee and Parliament deserves attention, so I do not have a problem with having to wait. I thank you and the members of the committee for the opportunity to offer our comments on Bill C-25.

To begin, the institute wishes to acknowledge specific House of Commons amendments to Bill C-25. The bill now includes reference to the disclosure of information concerning wrongdoing in the public service and the protection from reprisal of employees who disclose such information. While the reference in the revised text of proposed section 8 of the public service labour relations act falls short of legislated protection, it is at least a beginning on a very long road to addressing a fundamental issue for all public employees. In accordance with the spirit and intent of the legislation, this topic should be placed on the consultation agenda for the first time, and formal dialogue should be expected to occur between senior managers and representatives of the employees. We believe this modest step forward is due in no small measure to the efforts of the Senate under the leadership of Senator Noël Kinsella, and we thank him for that, but we are not done talking about whistle-blowing.

Bill S-6, the Public Service Whistle-blowing Act, and its predecessor, Bill S-13, raised the profile of this issue and, we believe, contributed to the government's willingness to finally acknowledge the frequent dilemma facing many public employees. Finding the balance between loyalty, confidentiality, ethical behaviour and the public good is problematic for many professionals and scientists. They face circumstances where they must respect professional codes of ethics while reporting to lay managers within organizations under pressure to deliver programs and services to the public. Treasury Board policy, and now this reference in the legislation, bring us a little closer to recognition and protection of employees who, in good faith, disclose wrongdoing in the workplace.

As this is the last opportunity to amend Bill C-25, it is still not too late to go beyond the cautious reference to whistle-blower protection now contained in clause 8.

Based on reports surrounding the departure of Privacy Commissioner George Radwanski in June of this year, members of the House of Commons Standing Committee on Government Operations and Estimates may be having second thoughts. An article in the June 24 edition of the Ottawa Citizen under the headline ``Radwanski faces staff uprising: Privacy Commission workers plan protest'' includes the following comment:

Liberal MP Reg Alcock, who chairs the committee, said employees have reason to be concerned because the existing ``internal disclosure policy'' that is supposed to protect whistleblowers from reprisal and retaliation is not independent from government and is part of the bureaucracy. Mr. Alcock said the committee's investigation into Mr. Radwanski's conduct has convinced him that the whistleblowing policy that the committee approved as part of the Chrétien government's recent sweeping public service reform bill is not enough and has to be reviewed.

Rather than wait for the five-year review of the coming into force of this act, which could occur in six or seven years, it is opportune to address this issue now with an appropriate amendment.

Our recommendation, which I will not read, is to amend the proposed public service labour relations act to insert a new Part 4. We have proposed something similar to the key points in Bill S-6. It does not, however, use the Public Service Commission; it uses the Public Service Integrity Office infrastructure that is already in place. The key difference between what we are proposing and what is in Bill S-6 is the scope of the protection provided to employees. Our proposal would cover those employees covered by the Labour Relations Act, which is about 40 per cent more employees than covered by the Public Service Employment Act. Those are the main differences.

There were a few other amendments to Bill C-25 that should improve the operation of the proposed act. The requirement in clause 147 empowering arbitration boards to compel, at any stage of a proceeding, any person to produce documents, et cetera — we believe that will help in collective bargaining. It will certainly add to the credibility of the process. The amendment to section 232 of the proposed Labour Relations Act is another improvement. Third- party adjudicators being empowered to establish remedies to bring closure to policy grievance is a step forward from what we have right now.

The Public Service Employment Act has been improved in some areas. Clarification of what constitutes abuse of authority, the process of appointment of the president of the Public Service Commission and increased power to the commission to undertake audits on the exercise of deputy minister discretion over staffing matters are also what we would see as positive improvements to the original legislation.

While they are important, these improvements do focus on the details. We should like to draw attention to more fundamental issues in the construction of the legislation. We are asking the Senate committee to build on the improvements of the House of Commons and to provide the public service with the infrastructure to establish a new labour-management relationship.

We have three areas beyond whistle-blowing that we should like to focus on. The first is a change to Bill C-25 that we feel is required. It would affect management rights in the scope of collective bargaining. Simply put, classification should fall within the scope of collective bargaining.

On May 27, 2003, the Auditor General tabled a report that included Chapter 6, ``Reform of Classification and Job Evaluation in the Federal Public Service.'' The report details the two failed attempts at classification reform and the millions of dollars consumed by these attempts. The report puts it at $200 million from 1998 to 2001.

I will quote from the Auditor General's observations:

In the federal public service, the classification and job evaluation systems are considered the cornerstone of human resources management. Because collective bargaining is based on occupational groups, there are important links between classification and job evaluation and other aspects of human resources management such as staffing, organizational design, and bargaining unit structure.

In my view, to deny the opportunity to negotiate classification and job evaluation systems removes employees and their representatives from the focus of human resources management. Labour management relations and collective bargaining should be the centrepiece of human resources management, not a sidebar for the architects at Treasury Board to factor in as an afterthought. The current antiquated job classification standards found throughout the public service cannot be blamed on the unions. The employer has had complete authority to act in this area, and, as assessed by the Auditor General, the record is dismal.

I will not go through the example that we include in our brief on the CS group, Computer Systems, but it is interesting to note how classification has affected them.

Clearly, the current system, which assigns unilateral control over job evaluation classification standards to the employer, does not work. Now is the time to make this a negotiable item whereby the parties can fashion classification standards to meet their mutual needs within an acceptable timeframe.

Our recommendation and the wording in the brief are incorrect, so I will go through it.

The recommendation is to amend proposed section 7 of the public service labour relations act to strike out ``and to classify positions and'' and to make other consequential amendments, including to 150(1)(e). We will ensure that the committee has the exact details on that, Mr. Chair.

Our second focus is termination of employment contained in proposed section 230 of the Labour Relations Act. The proposed wording may have the effect of placing employees on what we call permanent probation. The modern workplace requires professionals to adapt quickly to change, and the rate of change is accelerating. Employees must commit to continuous learning to ensure employability in a dynamic workplace. Equally important is the employer's obligation to provide training and assistance to employees and to manage a workplace that is undergoing frequent and substantial change. Recognizing and accepting this reality is essential before conclusions are reached about unsatisfactory performance and decisions are made to sever the employment relationship.

A decision to terminate employment, which is the capital punishment of working people, must consider extenuating circumstances that may have a bearing on performance. Some examples are as follows: the presence of poor health; a family crisis; evidence of harassment or discrimination; absence of clear instructions and expectations about performance; insufficient time and resources to complete quality work; and, above all, for highly specialized professionals, an understanding by lay managers of what constitutes satisfactory performance. These considerations must fall within the jurisdiction of the adjudicator to properly assess if the decision to terminate for unsatisfactory performance is justified.

Section 230 limits the adjudicator's review of an employee's termination of employment for unsatisfactory performance to strictly a question of whether or not the deputy head's appreciation of the employee's performance is reasonable. This test is much too restrictive. The test should be whether or not the deputy's heads decision to terminate employment was for just cause. An adjudicator must be able to assess a termination of employment from the context of the circumstances affecting the employee's performance. Was the employee made aware of shortcomings? What measures were taken to correct problems? Were there alternatives to terminating the employment?

These and other questions must fall within the scope of the adjudicator's inquiry and not simply be limited to an assessment of whether or not the deputy minister's appreciation of the employee's performance was reasonable.

With the proposed wording of section 230, the question of reasonableness could be confined to determining how much the deputy minister knew about the case, whether he or she received answers to questions raised — in short, an assessment that the deputy minister did not act in a frivolous or vexatious manner. Based on our experience, the right to independent, third-party review of all terminations of employment must be a fundamental right of employment. Although rare, employees occasionally encounter problems with managers that lead to wrongful dismissals. Deputy ministers, as one would expect, typically give their managers the benefit of doubt when disputes arise in the workplace. For justice to prevail, an independent adjudicator must have the latitude to investigate fully the circumstances, determine the appropriate course of action and order the remedy. Employee morale and organizational effectiveness depend on the understanding that there is access to redress when management makes unjust decisions affecting the careers of employees.

Our recommendation is to amend proposed section 230 of the PSLRA to delete the text beginning with ``if in the opinion of the deputy head'' and replace ``to have been for cause'' to read ``to have been for just cause.''

Our last main item of focus is the application of merit, proposed section 30 of the Public Service Employment Act.

The Professional Institute of the Public Service of Canada strongly supports the continued commitment to base appointments on merit. Both initial appointments into the public service and subsequent appointments within the public service must be determined by merit to ensure a non-partisan, professional public service. We fear the flexibility provided to deputy ministers under the new provisions and the limited scope of redress will increase the incidence of bureaucratic patronage. Section 30 grants wide discretion to senior management to abuse the merit principle. Once the basic qualifications are set, the deputy head has the legislated authority, under subsection (2)(b), to use his or her discretion to narrow down the choice of candidates to one individual.

In short — and no offence to Mr. Emond's members; I have a lot of respect for the vast majority of them — if the deputy head were intent on hiring his brother-in-law, and as long as his brother-in-law possessed the basic qualifications, there is ample opportunity to construct additional criteria specific to one candidate to conceal what otherwise would be a deviation from merit and an abuse of authority. To deter abuse, or the appearance of abuse, it is recommended that the criteria established be accessible to employees and their representatives and the public in advance of any appointments.

Subsection 30(4) as presently worded is an ominous threat to the merit principle. On what basis will the Public Service Commission or, more likely, the deputy head, exercise authority under this subsection? The presence of sections 32 and 34 suggest the need for flexibility under 30(4) should be limited to appointing selected priorities. It is our understanding that about 40 per cent of all competitions, all appointments, now occur without competition. How much higher will this number be when subsection 30(4) is in force? In any case, this section requires clarification to reassure employees and the public that merit is, indeed, the overarching criterion in staffing decisions.

Our brief contains a recommendation, which I will not read. I will go on to the concluding comments.

Typically, public sector institutions provide complex services where performance is not easily measured. Without the discipline imposed by profitability, public institutions must rely on public disclosure of activities and a system of checks and balances to reassure parliamentarians that the public is receiving good value and that government programs are meeting public expectations. The rights of employees and their representatives represent one such check on the exercise of executive authority. Assigning broad authority to senior managers to hire and fire employees, however ethical and dedicated these individuals may be, is a recipe for abuse.

The recommendations put forward in this submission rebalance employer and employee rights and thereby create a check on the exercise of management discretion that should serve the public interest.

The legislative regime advanced by Bill C-25 will determine ongoing success at recruiting and retaining a new generation of professional expertise needed to provide federal public services in an increasingly complex and knowledge-intensive society. Bill C-25 needs to create an infrastructure that allows the parties to develop a positive working environment where professionals and, indeed, all employees can experience satisfying careers in the public service.

Our brief contains several amendments put forward with this goal in mind. I trust the committee will reflect on these proposals. The three priorities raised in my remarks today are the minimum change we see as needed to create the legislative framework that will advance the goals of this legislation as articulated by the president of the Treasury Board.

As an organization, the Professional Institute of the Public Service of Canada is prepared to work constructively with employer representatives on any endeavour that will improve the working environment of our members. We are committed to seeking a legislative framework that continues to provide Canadians with a professional, non-partisan public service delivering quality programs and services.

Thank you, Mr. Chairman. I would be glad to answer any questions, if I can.

Senator Bolduc: Mr. Hindle, it is a pleasure for us to have you here today. We have had good conversations in the past. Even though we do not agree on everything, I think you do agree with me that the equilibrium between the efficiency of the administration and the administrators on the one side and due process in recruitment and selection on the other is not very well established in the bill. What do you think about that? Do you agree with that statement?

Mr. Hindle: I think it is difficult at times with an organization as large as the public service to balance the two. I do not think the bill does what needs to be done in terms of protecting employee rights so that employees can have access to a redress mechanism that allows them to question whether or not the proper balance was struck. To that extent, I would agree with you, senator.

Senator Bolduc: Do you feel that the protection of the public is also ensured by the discretion that is given here to the public administrators?

Mr. Hindle: Do you mean upon appointment to the public service?

Senator Bolduc: Yes. I know that by definition union people are more interested in their own people than the future of the candidates for the civil service, but as a general perspective how do you evaluate the protection that the general public has in terms of recruitment for the public service here?

Mr. Hindle: The application of Bill C-25 the way it is currently written will raise the appearance of additional abuses and will do nothing to allay concerns of the public that appointments are based on merit, even if they are, as they quite frequently are. It is important to recognize that the vast majority of appointments are based on merit and go to the appropriate people. We are concerned about the appearance and the opportunity to abuse the system. We think the way the legislation is currently written increases the opportunity to abuse the system, thereby leading to an increased perception that the system is actually being abused. Whether it is or not is not really relevant. If the general public has the view that it is being abused, then they will think that is the case.

Senator Bolduc: As you know, the Auditor General has been interested in that problem over the last three or four years. When you look at the report of 2003, there is a table on page 4 of chapter 6 that questions the way, for example, students are recruited, and then after that the ministries try to get them hired for real. They say, ``They were with us for three months and they were good, so we will take them.'' If you look at the report, the Auditor General — and we will hear from her — has many things to say that are not positive about recruitment.

In law there are also, as you know, many priorities given to the ministers' personnel, the managers of the minister. All the priorities are statutory also. Many people are located as casual employees — temporary for three months, then for another three months, and then for six months — and then finally the real recruitment is not done the way it should be in a democratic public service. That troubles me a great deal.

I know that you agree partly with what I say, but you would not like to see such a system for your own employees after they are in the service. For example, if the promotions were given the way the first selection is done, it would not be satisfactory at all for you personally, I suppose.

Mr. Hindle: Our preference, which is not actually contained in our brief because we do not think members of Parliament are ready to entertain it, is that the Public Service Commission's role be confined to an initial appointment to the public service and that all the functions of the employer, including staffing for people who are already employees, be put in the hands of one body. We would suggest that would be the Treasury Board as employer, and abolish the Public Service Commission's role in appointments inside the public service. Leave it to the parties, the unions representing the employees in the various bargaining units, to determine what the various staffing processes will be.

Certainly, since 1967, with the introduction of collective bargaining, we think that the relationship should be at the point where the parties can work out at the bargaining table what staffing processes will be and what is appropriate for people in different bargaining units. For example, a staffing process for the lawyers we represent could well be different from the staffing process envisioned for financial administrators or for people who work in the dockyards in Halifax or in Victoria. We think it is more appropriate to leave it to the bargaining agents to deal with the employer on what the staffing processes will be.

Senator Bolduc: Logically, therefore, you would not need the first part of the bill; you would prefer the Labour Code of Canada?

Mr. Hindle: There is some confusion. As I said, we do not think members of Parliament are ready to abolish the Public Service Commission. Therefore, generally, we do not ask them to do that any more. However, we think that clarification around staffing is important and that it should be clear that it is the most meritorious person who should be awarded the position, not just someone who can do the job.

Senator Bolduc: I will not repeat what I said before, as I believe that you were here when I spoke with representatives of the two other groups. Essentially, the representative of the executive group told us that the public will be protected and that we should not have any fear of misbehaviour in the public service. Human nature being what it is, I think some administrative processes for selection should at least be put in the framework of the bill. He said, ``No, no, we do not need that. We do not favour having administrative processes set out too precisely in the bill.'' I know that most of them are virtuous.

Mr. Hindle: They are.

Senator Bolduc: And they are good. As a representative of the public, if I can say so, I do not feel comfortable with the bill on that particular aspect.

Mr. Hindle: It is ensuring that the checks and balances in the legislation are there to prevent the abuses from occurring and not having to deal with the abuses after they occur.


Senator Gauthier: Earlier the President of the Public Service Alliance stated that there may have been some abuse with respect to appointments and grievances. In your statement you say, on page 11, that section 30 grants wide discretion to senior management to abuse the merit principle. This is serious. Could you explain what you meant by that? Give me an example of a deputy head who would apply this in an abusive manner, without being criticized by his or her employees and subordinates?


Mr. Hindle: The legislation as it is currently written allows merit to include consideration of one candidate only, for example. If a manager were staffing a position with a supervisory function and wanted one person in particular, that manager could design the competitive process in such a way that they would interview only one person, the one they wanted. The legislation says that that, in and of itself, is not an abuse of the merit principle.

We see that there are times when that is an appropriate mechanism. There are two sections that we mentioned in that regard. One is related to what is essentially an apprenticeship program, when the person is hired, for example, as a welder and the person meets a set of criteria. The individual then gets promoted to the next step. The person is the only individual considered because that is the way each and every individual hired as an apprentice is promoted into that position. We think that is appropriate.

We also represent research scientists and defence scientists and their promotion criteria are based on the value they bring to the position and the way they grow in the position — research papers that are published, appearances at conferences, et cetera. Therefore, their promotions are done on an individual basis as well. They are not competing against their colleagues for a position as a researcher, level 4, for example. They are competing against a set of criteria that says they are operating at a level 4.

The way the legislation is written would allow a manager to interview one person, appoint that person, and there would be no redress because it is not, in and of itself, an abuse of the process.


Senator Gauthier: I have an additional question; we have not talked a great deal about the new Canadian public service school. This will be shared between the Management Centre and the commission. You have general training; I would like to target language training specifically. The bill is silent about this issue. Who should be responsible for language training? The Public Service Commission — as it has been doing for a long time — or the Management Centre?


Mr. Hindle: We did not spend a lot of time considering which would be the more appropriate place. We think it is a function of the employer. Frankly, it quite properly fits in the Canada School of Public Service because it is part of the development of the members of the public service. We do not have a real problem with it remaining with the Public Service Commission, despite our views on the Public Service Commission.


Senator Gauthier: Let us take a specific example. You represent translators and interpreters?

Mr. Hindle: Yes.

Senator Gauthier: In two or three years, we will not have enough translators and interpreters. Last year, four people qualified as interpreters and 300 as translators. How do you feel about that? Why can't the new school's Management Centre be given the task of recruiting, promoting and developing translators and interpreters?


Mr. Hindle: Frankly, the goal of language training available through the Public Service Commission is not to turn people into translators and interpreters. That is a university-level occupation. People are trained in those fields through post-secondary education. It is not what I understand the Public Service Commission to be doing with their language training.

The language training for public service employees is to allow them to operate in an operational job as a manager, as a policy adviser, someone who develops policy in one or both of the official languages. It is generally in the other official language. It is not designed to produce interpreters or translators. I understand that is much more intensive. Generally, university-level education is required.

Senator Gauthier: Yes, but you represent them anyway.

Mr. Hindle: I do not represent the interpreters and the translators. They are represented by the Canadian Union of Professional and Technical Employees who are amalgamating with the gentlemen who will be appearing after me.


Senator Beaudoin: I would like to come back to section 30. I am quite surprised to see that, in a section as important as the one in which the word ``merit'' appears, its definition is so imprecise.


It is a complete surprise to me. If there is a word that is important, among others, of course, it is the word ``merit.''

I heard a few minutes ago that some people would like to leave that to the courts. That would be a terrible mistake. We are here to legislate. If there is one thing that we have to legislate on, it is the meaning of the word ``merit.'' How can you leave that to the courts? We have to do our duty. I congratulate you in the sense that you are proposing some amendments to clause 30.

My only concern is, perhaps, even the amendments are not precise enough.


In this example, the French states:

The criteria for merit as described in subsection 2(b) and subsection (3) shall be determined from time to time and published to employees, employee organizations and made accessible to the public.


The intention is very good, but is it not possible to propose something that would be more adequate, more mandatory, if we go in that direction?

Mr. Hindle: There certainly is difficulty in defining what we mean by merit. The current understanding inside the public service is that the position goes to the most meritorious — the person with the most merit, if you would. The reason people are saying we should leave that to the courts is the current process of appeal boards and appeal board decisions ending up before the Federal Court. That process revolves around whether or not the competitive process was fair to those who were assessed and produced a list that put the person with the most merit at the top of the list.

Merit is a somewhat nebulous term. We all have our own idea as to what is merit. I agree that the definition in the legislation is very vague. It merely says you have to meet certain qualifications, in addition to other items established by the deputy head, without ever really speaking to how the deputy head is supposed to go about it. We would say that merit should be that the person best qualified is appointed to the job.

Senator Beaudoin: I cannot agree more that it should be on merit. It is easy, legally speaking, to say the best person should be appointed, but, of course, who is the best?

Mr. Hindle: Determination of the best.

Senator Beaudoin: There is also another question.


The commission is not obliged to take more than one person into account in making a merit-based appointment.


If a position is very important, it must not be difficult to obtain more than one candidate. I would like to know a little more. Is it a question of information or is it another question, being that there is only one person among 30 million persons who will be interested in a very important position?

Mr. Hindle: Generally, this part of the legislation would not apply to the 30 million. It would apply to employees already in the public service, which is somewhat smaller than 30 million.

Senator Beaudoin: There may be 30 million.

Mr. Hindle: Could be. Are we all in the public service?

We have identified this as a problem as well. It opens it up for abuse. In the vast majority, probably more than 99 per cent of the cases where there is an appointment to be made, there is more than one person in the public service who should be considered for appointment to the job because they either have the qualifications or they should be assessed to determine whether or not they have the qualifications.

It would be rare indeed that there was only one person in the public service capable of filling a position. We have outlined the instances where it is appropriate to consider only one person, and that is where it is not a consideration of relative merit, it is absolute merit. It is one person's ability to do the job and be promoted or appointed into a position that is available to them. We think that opening up the legislation the way it is does promote the appearance of abuse, does increase the opportunity for abuse, and we are not quite sure how it would be applied or how it would be used. Our recommendation is to tighten it up and make it very clear the two instances where you can use one candidate or assess one candidate for promotion. That is clear in our brief — at least, I hope it is clear in our brief, senator.

Senator Beaudoin: Is it often that you have a case like that?

Mr. Hindle: Certainly. For the members we represent in the research community, that is the normal promotion criteria they go through. They are assessed based on their publications, their national and international reputation, et cetera. We have a lot of experience with that.

Senator Bolduc: Would that also include recognition by their peers?

Mr. Hindle: Absolutely, that would include the number of times they are cited by other researchers.

Senator Beaudoin: The recognition by their peers is a very good ruling, of course. We do that in the royal society or other organizations.

Senator Milne: I agree with Senator Beaudoin about the problem of courts defining what merit should be, but when I look at your recommendations about merit I do not see that they cure the problem whatsoever. In fact, I do not think they even address the problem. You talk about a deputy head intent on hiring his brother-in-law.

Concerning your point 5, the commission is not required to consider more than one person in order for an appointment to be made on the basis of merit, I cannot see that that would change in any way whatsoever. You may think these recommendations tighten the whole thing up a bit, but perhaps one of the basic problems right now is that you say that 40 per cent of all appointments now occur without competition while Senator Ringuette says 48 per cent. Perhaps the problem is that right now the system is already too rigid and this is why managers are going outside the system to hire in almost 50 per cent of cases. Perhaps some of that is being done by hiring on contract rather than hiring permanently. I fail to see how your recommendations will do anything whatsoever to cure that. We need more flexibility and not less.

Mr. Hindle: The way our recommendation would stop the use of one-candidate competitions is that it would restrict their use to two specific instances already outlined in the legislation. If I turn to page 12 of our brief, the recommendation is for a new subsection:

(4) The criteria for merit as described in subsection (2)(b) and subsection (3) shall be determined from time to time and published to employees, employee organizations and made accessible to the public.

That would open up scrutiny of what are the criteria for specific jobs.

Our second amendment would be to subsection (5):

(5) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit —

Here is the addition.

— under Sections 32 and 34 of this Act.

Those sections apply specifically to people in common oriented positions, researchers, and people in apprenticeship like programs. It would severely restrict the number of opportunities to consider only one person and then appoint them to the position.

Senator Oliver: My question as well relates to section 30, where they talk about the essential qualifications for the work to be performed, and that is really a subjective standard and not an objective standard. The thing that most Canadians would like to feel, if they are seeking work with the public service, is they would be judged by some kind of objective standard. Even your amendments, as Senator Milne just said, do not bring us up to the type of objective standard we would like to see for something this important.

As you know, Mr. Lewis Perinbam undertook a major study for the public service a few years ago. As a result of his report, he talked about the need for a one-in-five to ensure that all Canadians are afforded an opportunity to be treated equally by some kind of objective standard that we do not see in the merit principle in this bill. I was a little surprised that you, as the head of the Professional Institute of the Public Service of Canada, at no time in your presentation or in your written brief referred to the concept of representativeness or diversity.

Now, in view of Mr. Perinbam's report, I should like you to comment on why you have expressly excluded any reference to diversity or representativeness in your report.

Mr. Hindle: The first reaction to that is I am not sure how you would incorporate that into legislation, nor am I sure exactly what criteria you would use to determine what that diversity should be.

Are you looking at the national representation of certain groups, such as visible minorities, Aboriginals or women? Are you looking at representation on a provincial or regional level? Are you looking at the proportion of the public service that is, for example, of Asian origin in Vancouver and whether that should reflect the population in the lower mainland area of B.C. or the population of Canada?

Senator Oliver: The answer is that the Public Service of Canada should reflect Canada; and currently, it does not. This proposed legislation should ensure that it does reflect the population of Canada. What is your view on that?

Mr. Hindle: We agree that the Public Service of Canada should reflect the population of Canada. We are not sure how to incorporate that in the proposed legislation and so we are not offering a comment on how that should be done. We believe that parliamentarians are looking at it and, as you said, Mr. Perinbam has made suggestions, some of which have been incorporated into government policy. We are supportive of the embracing change document that was produced and of the efforts to increase the representations of the Public Service of Canada, based on the Canadian population. We have avoided getting into specific details on that.

Senator Kinsella: I cannot avoid making a comment on this latter discussion. Surely the answer is quite simple. We have to have a contemporary, affirmative-action program. That is how it should be done.

I have a question that I should like to ask, again. Page 12 of your brief contains an expression of concern for the flexibility that Bill C-25 affords deputy ministers. You try to get around that problem with your recommended amendments. I think Senator Milne raises a good point about whether those amendments would accomplish that. Some would argue that the strength of the Public Service Commission would do that. Who appoints the deputy head and to whom is the deputy head accountable? Depending upon your answer to that question, ought we, therefore, be concerned about the merit principle being politicized?

Mr. Hindle: I understand that the Governor in Council appoints deputy heads.

Senator Kinsella: Therefore, the Prime Minister appoints them.

Mr. Hindle: That is right.

Senator Kinsella: To whom are they accountable?

Mr. Hindle: Presumably, they are accountable to the Clerk of the Privy Council, who is also appointed by the Prime Minister.

Senator Kinsella: Patronage would be the vehicle.

Senator Comeau: Talk to the former FBDB president.

Mr. Hindle: We have at least one former prime minister who was also a deputy minister.

The Chairman: We have at least one member of this committee who is a former deputy minister who knows the answers to all those questions.

Thank you, Mr. Hindle and Mr. McIntosh. As always, you have provided us with a most interesting and stimulating presentation and exchange with senators.

We will now hear from the Social Science Employees Association. Mr. William Krause, President, is accompanied by Mr. Claude Danik, Director of Professional Services and Mr. Peter Engelmann, Legal Counsel. For the record, the SSEA is a non-profit labour union with more than 7,000 members who are knowledge workers in Canada. The association includes employees of the federal government who provide economic and social science services, the research staff of the Library of Parliament and staff at NAV Canada.

Mr. Krause, please proceed with your opening statement.

Mr. William Krause, President, Social Science Employees Association: I should like to thank you for that warm introduction. Our association represents statisticians and similar professionals within the federal public service.

As you know, we represent the research officers and research assistants at the Library of Parliament. As was alluded to by Mr. Hindle, our association is currently in the process of merging with another public service union to form a new organization, the Canadian association of professional employees. With this merger, we will soon represent, in addition to the membership of the SSEA, approximately 1,100 translators, interpreters and terminologists in the federal public service.

In general, we support the objectives of Bill C-25. We tried to establish a cooperative labour-management relationship, which creates a healthy workplace. In general, we support the collaborative public service that is, essentially, non-confrontational in nature. We certainly would like to see flexibility in staffing combined with reinforced safeguards to protect merit.

While the association believes that some measures in the bill are steps in the right direction, we remain concerned. There is a definite possibility that these objectives may not be achieved owing to some needed improvements.

Before I speak to our recommendations for improvements, I should like to point out the areas of the bill that we support.

In respect of section 208 of the proposed public service labour relations act, discrimination grievances may go before a labour relations board and not simply before the Human Rights Tribunal. This provision would allow for more timely and effective action. We certainly support this proposed change.

Section 51 of the proposed public service labour relations act is a privative clause such that decisions of the new public service labour relations board would be final and binding. This provision is important because it could discourage unnecessary litigation.

Proposed section 53 creates an advisory board on compensation. SSEA supports labour-management compensation analysis. We are currently involved in such a venture. However, the association is concerned about the composition of the proposed advisory board. We believe that the bill should clearly state that 40 per cent of the membership of the advisory board must be from labour, 40 per cent from management and 20 per cent must be representative of public interest.

We support proposed section 226 of the PSLRA which would give the public service labour relations board remedial powers such as awarding interest.

We note that proposed section 37.1 of the PSLRA would remain unchanged. It would maintain the right to arbitration or strike in the resolution of bargaining impasses. Our members have always relied on arbitration as a method of dispute resolution at the bargaining table. We are also pleased with the criteria to be used by the arbitration panels in settling those impasses.

These elements of Bill C-25 are positive and we support these provisions. However, there are areas of the bill that cannot be supported as they are currently written. We wish to address our recommendations that are designed to improve the bill in the public interest of better labour-management relations and effective staffing.

Proposed section 8 of the PSLRA should be amended such that consultation committees are conducted in good faith. Proposed section 10 should be amended to include a dispute resolution process in the case of co-development initiatives. We believe that parties to co-development must be required to develop an appropriate mechanism to resolve differences, while recognizing that such disputes or differences will be the exception. Without a dispute resolution process, the default decision-making process is a managerial decision. This is not co-development. This is consultation, which is currently covered in the bill. If the committee is not prepared to include a requirement for dispute resolution mechanism in the bill, we respectfully put to the committee that it should remove all references to co-development from the bill.

We believe that proposed section 41 of the PSLRA must be amended. The board's right to waive a hearing should be conditional upon agreement of the parties involved in the matter.

We think that proposed subsection 76(1) must be deleted. This provision directs the employer to withhold relevant dues payments from a union until an exclusion proposal has been decided. Such authority could be abused with the intent of adversely impacting on the operations of an organization. In fact, the employer could unintentionally harm a bargaining agent as a result of the provision of the proposed act.

We believe that proposed section 209 must be amended. Employees should have the right to refer harassment grievances — abuse of authority — to an adjudicator for an impartial decision.

We should also like to see proposed section 227 be amended. The adjudicator's right under the proposed new PSLRA to waive a hearing should be conditional to agreement by the parties to the matter of the grievance.

We should also like to see proposed section 230 amended. Termination or demotion should be for just cause and not for reasons of an opinion.

In terms of the Public Service Employment Act, section 11 must be amended. This would place an onus on the commission to appoint from within the public service except where, in the opinion of the commission, it is not in the best interests to do so. This preference for internal staffing is an important element of career progression and development. Furthermore, the preference serves to counterbalance the propensity to staff from outside the public service.

Getting to the issue of merit, we believe that section 30 of the Public Service Employment Act should be amended. The act must ensure that staffing is conducted in such a manner that the public service will continue to strive for excellence. We have the best public service. Why would we accept a provision in the new Public Service Employment Act that could encourage mediocrity?

If you look at our proposed amendments, we replace in the act the whole notion of relative merit as well as individual merit, and mention those circumstances under which individual merit shall be used.

We further believe that section 35 must be amended in order to extend to non-partisan employees on Parliament Hill the right to compete for public service jobs — a right that I note is being extended to separate employers under section 35.

We should also like to see section 77(1) of the PSEA amended in order to extend the tribunal complaint process to appointments by deputy heads. Furthermore, section 77(1) must be amended so that the grounds for a complaint include the failure to assess qualifications as a result of error, an omission or improper conduct. Our concern here is based on the latest survey results of government employees in which 30 per cent expressed concern over the lack of perceived fairness. We believe that strong rights of appeal create a strong foundation for correct action by managers.

In closing, let me underscore that Bill C-25 will shape labour relations in the federal public service for many years to come. In its current form, it is almost exclusively a reflection of managerial interests. There is a need for more balance if we truly wish to have a public service in which there is labour peace and harmony.

We would not be pleased to respond to your questions.

The Deputy Chairman: Thank you very much, Mr. Krause.

Senator Kinsella: I should like to go to your very first point, where you speak of discrimination grievances not being adjudicated pursuant to the Human Rights Act but rather going to a labour relations board. Why do you support that idea?

Mr. Krause: It generally takes forever for a complaint to get through the Human Rights Tribunal. Going to adjudication quickly will allow for resolution of the matter. It is not a ``they will go there,'' they may go to a labour relations panel, so the option rests with the employee. If it can lead to more effective and quicker resolution, we favour having these matters resolved quickly.

Senator Kinsella: But the violation — an alleged act of discrimination under the Human Rights Act of Canada — is a very particular kind of a social wrong. The process of complaint handling must begin with an investigation. Then there is a legislative requirement to try to effect a settlement of the matter complained of. The whole process is not directed primarily at punishment or being punitive, but is restorative; it seeks to effect a change, whether systemic or individual. The objectives of the Human Rights Act in the processing of allegations of discrimination have a very specific social end to them. I do not understand. Is your main objection that the Human Rights Tribunal takes too long?

Mr. Peter Engelmann, Legal Counsel, Social Science Employees Association: I think we share your concerns. The problem in the past has been that public servants have been denied rights that other Canadians have had because they did not have the right to have their discrimination grievances adjudicated before the Public Service Staff Relations Board. So what would happen is they would be subject to the Human Rights Commission process — and, as you know, that process can result after an investigation in the commission deciding that the case does not warrant a further inquiry.

Senator Kinsella: What is your point there?

Mr. Engelmann: It is that there should be a choice. We are happy that unionized public servants will have a choice. Discrimination grievances can be heard by the new public service labour relations board; they can also be heard by the Human Rights Tribunal. In the past, they were not allowed to be heard before the labour arbitration board. This gives them a choice. We are not in any way suggesting that people should not have access to the Human Rights Tribunal, particularly, as you pointed out, for systemic complaints and complaints of that nature. We are not trying to foreclose a forum; we are trying to give public servants the same rights as private citizens would have. I think we are ad idem on the goal.


Senator Gauthier: Mr. Krause, you are becoming amalgamated with interpreters and translators, but it is not you who represents them.


Mr. Krause: I think it will be a matter of weeks. In a few weeks, we will be their representative.


Senator Gauthier: This is an opportunity to make you aware of the problem. There is a crisis with respect to recruitment and training, as well as all issues involving translation and interpretation across Canada, be it at the judicial or at the parliamentary level. I think there is a problem here that we need to solve.

But this is not what I wanted to talk about. I want to come back to the issue of grievances and appeals. An appointment is always open to appeal. If we look at the Public Service Commission figures for last year, we can see that approximately 100,000 appointments were made. Of those, 70,000 were eligible for appeal, and about 1,500 were appealed. Of those 1,500, 125 were considered in order. The system was therefore not abused. Would you agree with that? If I read your notes correctly, you seem concerned about the issue of abuse?


Mr. Krause: We have noted over the years that the vast majority of appointments made in the public service are made by people whose intentions are very honourable; the judgments are very good, and we have little qualm with their actions. We have safeguards because we understand that there are, and have been, instances where errors have been made and where, perhaps, at times good judgment was not exercised or maybe intentions were not honourable; but these are a distinct minority. Nonetheless, we need to have safeguards in place.

I would also state that the reason that the percentage of complaints or appeals we have is so low is because we do have adequate safeguards, and because employees may, for example, appeal a staffing action if they believe there has been wrongdoing, if they believe their answers have not been properly graded, if there have been omissions and errors on the part of board members. All these factors allow them to file an appeal. What we are concerned with is that there is a severe relaxation of the standards for an appeal, to only abuse of authority and language issues in the selection process. When you relax the standards, you will invite abuses; therefore, those statistics that were previously cited may no longer exist in future.

The amendment we proposed allows for errors, omissions, fraud and other actions to be considered as grounds for an appeal. I think, for example, if people who were involved in a relative examination — who were competing for a job — cheated, that should be a ground for an appeal. It is not under this legislation.

We propose that that be a ground. It is very important that people have the right to appeal for significant errors and omissions in the process.


Mr. Claude Danik, Director of Professional Services, Social Science Employees Association: My remarks will be in the same vein as those of Mr. Krause. The discussion on the merit principle has been a very interesting one. I appreciated the comments made by members of the Standing Senate Committee on Finance, which highlighted the importance of defining ``merit.''

I have already filed appeals on behalf of a number of members, and would like to explain how the pieces of the puzzle come together. The cornerstone of the current system is the concept of relative merit. At the outset, we determined that the best way of staffing public service positions was to see who was available by determining their qualifications objectively using standards, and measuring candidates against one another.

It is this measurement, this comparison among candidates, that requires the staffing process to arrive at criteria that are as objective as possible. The manager responsible for deciding which of five or of 200 candidates end up on the eligibility list will have to justify his decision after the fact. The manager is accountable and must, as far as possible, use objective criteria in determining which of the candidates is best suited for the position.

In examining the proposed legislation, we note that the concept of relative merit is being pushed into the background. We find this cause for great concern, because relative merit is the cornerstone of the system and without it everything will crumble. We therefore have to build a completely new system, one which will be based on the existing concept of individual merit.

Some have rightly said that half of public service appointments are based on the principle of individual merit. If we look at the Public Service Employment Act regulations, we find a long list of exceptions enabling managers to appoint people on the basis of individual merit.

We have to restore the balance to some extent. We do not want to make it impossible for managers to appoint people on the basis of the merit principle. We would like to find a balance by bringing relative merit back into the legislation.

Senator Beaudoin: I wanted to come back to the comments made by Senator Kinsella. You would like managers to have a choice.


You can go to the labour tribunal or appear before the commission. However, the right of appeal concerns me. Perhaps you have answered that to a certain extent.

In any case, we have the right to go to appeal. I want to be sure of that, because the right of appeal is part of our rule of law to a great extent.

Mr. Krause: I need a little help here because when I think of the word ``appeal'' I think exclusively of the process of hiring through a competition and appointment, which is subject to appeal. Are you referring to the right to have a grievance, which deals with other violations of one's collective agreement?

If one is discriminated against in his or her collective agreement, the individual may then file a grievance and go to a labour relations panel to have it adjudicated. That is part of this legislation. We are supportive of that measure.

Senator Beaudoin: That is a good thing.

Mr. Krause: We believe that it is a good thing to have that right as well.

Senator Beaudoin: Do you still have a possibility of going to appeal?

Mr. Krause: We have a right of going to the Human Rights Tribunal as well, and obviously, we support that.

Senator Ringuette: I could not help but notice — through no fault of anyone — that you are the fourth group appearing before us today representing current public service employees.


Mr. Danik, I appreciated your comments on merit. I also believe that there is merit in your comments.


On the other side of this, it is most unfortunate that there are no organized non-public service employee groups to give us their perspective on geographic limitation of access to become a member of your group. What do you think about this geographic limitation for entry into public service? What do you think about the same limitation imposed on your membership?

Mr. Krause: As far as entering the public service, there is no geographic limitation. The overwhelming majority of people coming into our group, the economists, graduating from universities, are hired through university recruitment programs conducted by departments, such as Statistics Canada, Finance Canada, Industry Canada, Human Resources Development Canada and Health Canada. Departmental representatives go to universities around the country. They meet graduate students, generally master's and Ph.D. students. They have discussions and interviews with these people. From those interviews and through processes with which they assess, they then make offers to these individuals.

To the extent that the people attending at the various universities come from everywhere in Canada, we believe that we are geographically representative of the broad population in the public service.

Senator Ringuette: My question was not put to the right group.

Mr. Krause: It is an excellent question, but I believe that we are representative.

Senator Ringuette: Yes, due to the post-secondary program. However, the Auditor General does say that it is limited by the application or adherence by the different departments to this very good recruitment program. That is very unfortunate.

Mr. Krause: Our members are very fortunate to have such excellent recruitment programs in various departments. I might add that when these individuals come to the public service they are generally assessed against the standard advanced on the basis of individual merit while they are in their training programs through their first several levels of jobs and through their rotations through the departments. We think that is appropriate as well.

However, having agreed that these appointments based on individual merit have a time and a place, we believe that for the more advanced positions in the public service, the appointments should be through a relative process where these individuals compete and where the best individual is selected. We have proposed changes to section 30, to allow for relative merit.

Mr. Danik: I should like to applaud the committee for raising two issues. You raised the area of selection, which is very important, and have raised it in terms of departments and silos. This has been one of our major complaints for several years.

I have been on committees that have criticized the practice of trying to recruit within a department and not trying to create the kind of broader knowledge that public service employees need in order to serve the public best. We have been on record time and time again saying that for our ES members, for example, we want national competitions. We do not want local competitions. We do not want competitions restricted to a department.

We have one particular department that will remain nameless with which we have problems because their competitions are always internal. They are one of the major employers of our members. It creates a great deal of difficulty for our members, who rely on mobility as an opportunity to get the kind of training they need to progress within the public service.

Senator Ringuette: I can see in the new mandate of the tribunal that geographic criteria complaints are not even an eligible complaint to the tribunal.

Mr. Danik: Currently, it is a problem because the area of selection is a technical element that is in the public service employment regulations.

We can appeal the area of selection; however, the way that it is written currently, the employer must consult the union, so they call us up and they say, ``The area of selection will be Vancouver. Thank you very much.''


Senator Bolduc: I find it outrageous that the bill does not introduce the concept of competition. I do not claim that a competition is always necessary. However, the competition concept is at the heart of the system, and now it is being set aside. Having lived with the way things are for over 45 years, I think this is a disaster. I have expressed my views to the Honourable Minister Robillard, but the effort was fruitless.

Coming back to the debate on individual merit versus relative merit, in my opinion we have never lost relative merit. As for individual merit, it is based on the classification structure. We have a position classification system that is used in Canada and the United States. Within that system, advancement is determined by an official process requiring individual assessment. When a candidate meets a given set of criteria, he is accepted.

With a different type of public service structure, like the one we find in Quebec, we find a career-based system organized for professionals, so the problem does not arise. An individual advances as his experience and accomplishments grow. In my view, this is advancement, not real promotion. Real promotion occurs when the individual moves to a new position. The individual has certain duties; he is a professional. Later he becomes a manager, director, director general, or assistant deputy minister.

This brings me back to a point you expressed very well. At some point we have to establish the relative value of individual candidates, otherwise the system would not be fair to candidates outside the system — those mentioned by the Honourable Senator Ringuette — nor would it be fair to candidates inside the system.

As I said previously, we have to decentralize the system. However, we cannot decentralize it and take into account the objections raised by Senator Milne regarding silos.


In one way, we have to go to an interdepartmental examination.


So will we need interdepartmental competitions to achieve this?

Let us take economists as an actual example. There are a number of economists at the Department of Finance, since the work involved at the department involves finance and monetary policy. These economists have an advantage because they are within the main department involved in economics. However, there are also economists at Health Canada. They work on economic problems in the health sector and they do not have any advantage, since they cannot compete with economists at the Department of Finance. This is why we need as much decentralization as possible. The process also has to become interdepartmental, particularly as we move up the bureaucratic ladder; otherwise, we will condemn Health Canada economists to talk about the economics of health throughout their lives, when there are many other economic sectors they might be interested in. It is a question of balance.

Some say that we are talking about a value, and thus should not establish an administrative process within a piece of legislation. But in my opinion, the legislation needs to contain provisions pertaining to essentials issues. I am not questioning the virtue of government officials. However, there must be provisions to ensure that the administrative process guarantees the protection of the public interest as well as the interests of public servants. There are already unions to protect the latter.

I share your views on this point. But you will understand why I am keeping silent on other aspects of your brief.


Mr. Krause: Can I simply say we agree?

I might raise a comment here on the whole question of balance. The legislation should be achieving a balance. On the one hand, we know government employees would like to have relative competitions because it gives them the opportunity and it helps them feel that the process is fair. We know that managers wish to hire quickly because they have a need to fulfil in serving Canadians. They are the other party whose interests need to be balanced. Overriding both of those, we have the Canadian public. The public would like to have confidence that the system is fair and that it hires the best people to serve them. Their interests have to be served as well.

I think the bill, in its current form, is skewed too much in favour of managers who would like to hire expediently and quickly, mainly because of the demands that are on them to provide service, and maybe because their staff levels are insufficient to fulfil the job that they have to do. That, I think, explains why some 42 per cent of appointments that are made are made without competition. It is because of those demands.

I think we need to redress. We should not go completely in that direction. We have to allow for relative merit. I hope you will seriously consider the amendment we proposed on clause 30 for that very reason. Relative merit must stay. We must give Canadians the confidence that the appointments made are honourable appointments and that they are being served by the best Canadians.


Senator Bolduc: I raised this point at the second reading of this bill. I have no objection to the matter being delegated to the department or to the administrators. However, I would like to see some rule of law guiding them within the legislation and obliging them to hold competitions, except in certain cases.


Senator Milne: Are you not glad, Mr. Chairman, that my questions are usually short?

The Chairman: Glad to have you here, senator.

Senator Milne: I thank Mr. Danik for recognizing that there is a problem between departments with silo mentality.

I wonder, since I have complimented him, if I may turn around and possibly insult him. I actually have in mind two departments who might be responsible for the one that you nominated for the worst. I sincerely trust that one of them is not the Department of Finance, since this is the National Finance Committee. I will not ask you to answer that.

Senator Oliver: He said ``no.''

Mr. Krause: No.

Senator Milne: I also want to point out that we have spoken about perhaps one in five persons hired for the civil service of Canada being from disadvantaged groups. Will you take that 20 per cent and divide it between Aboriginal groups, immigrant groups and disabled groups? It starts to run pretty thin when you look at it that way. Twenty per cent is not very much — one in five. I look at the presentations that have been made before us today, and I see a lot of white males.

Mr. Krause: I concur with your observation. Perhaps one in five is not sufficient. However, the more fundamental problem is that the application of the one in five is occurring at the lower levels of the public service, at the recruitment levels. There are some worthwhile initiatives at that level. For example, Treasury Board has an economist hiring program for only people who are visible minorities. We support that program for economists who are being trained. Other departments are applying the one-in-five criteria very well and are exceeding it. We think that is great, too, but these are invariably done at the bottom level. As has been pointed out, there is a tendency for like to hire like. It is no surprise when you look at the executive cadre in the public service that there is not such a great representation of people from the minority community. That is a problem that must be addressed. I agree with you.

Senator Milne: It should accurately represent the faces of Canada today.

Mr. Krause: I agree with you.

Mr. Engelmann: There was a comment made earlier today that may involve some strengthening to the Employment Equity Act and also the Canadian Human Rights Act. As many of you may know, a landmark case was decided here in the National Capital Commission with Health Canada where the one-in-five order was made so that they could catch up, and this was for visible minorities in feeder groups to executive category and also in the executive category.

The power no longer exists in the Canadian Human Rights Tribunal to do that because of transitional provisions with the Employment Equity Act, et cetera. It may not be this legislation, but there certainly is a need to look at the Employment Equity Act and the powers of the Employment Equity Review Tribunal and the Canadian Human Rights Tribunal to see that the public service better reflects the Canadian intent.

The Chairman: On that note, I will thank our witnesses for the presentations and for their participation and discussion this afternoon.

The committee adjourned.