Proceedings of the Standing Senate Committee on
National Finance
Issue No. 79 - Evidence - November 6, 2018
OTTAWA, Tuesday, November 6, 2018
The Standing Senate Committee on National Finance, to which was referred Bill C-62, An Act to amend the Federal Public Sector Labour Relations Act and other Acts, met this day at 9:30 a.m. to give consideration to the bill.
Senator Percy Mockler (Chair) in the chair.
[English]
The Chair: My name is Percy Mockler, senator from New Brunswick and chair of the committee. I wish to welcome those who are with us in the room and viewers across this country who may be watching on television or online. Also, as a reminder to those watching, the committee hearings are open to the public and also available online at sencanada.ca.
[Translation]
I will now ask the senators to introduce themselves, starting on my left please.
Senator Forest: Éric Forest from the Gulf region of Quebec.
Senator Pratte: André Pratte from Quebec.
[English]
Senator C. Deacon: Senator Colin Deacon from Nova Scotia.
Senator M. Deacon: Marty Deacon, Ontario.
Senator Marshall: Senator Elizabeth Marshall from Newfoundland and Labrador.
[Translation]
Senator Bellemare: Diane Bellemare from Quebec.
[English]
Senator Neufeld: Senator Richard Neufeld, British Columbia.
[Translation]
The Chair: I would also like to introduce the clerk of the committee, Ms. Gaëtane Lemay, and our two analysts, Alex Smith and Shaowei Pu, who together support the work of the Standing Senate Committee on National Finance.
[English]
Today, honourable senators, we continue our consideration of Bill C-62, An Act to amend the Federal Public Sector Labour Relations Act and other Acts. It was referred to the committee by the Senate on October 16, 2018. After hearing from the President of the Treasury Board and two other departments last week, today we welcome four organizations representing federal government employees. We invited them to comment on the proposed legislation.
To the witnesses, thank you for accepting our invitation and being here.
First, from the Professional Institute of the Public Service of Canada, we welcome Debi Daviau, President.
[Translation]
She is accompanied by Ms. Isabelle Roy, General Counsel, Chief of Labour Relations Services. Thank you for accepting our invitation.
[English]
From the Canadian Association of Professional Employees we have Deborah Cooper, General Counsel; from the Association of Justice Counsel, we have Ursula Hendel, President; and finally, from the Public Service Alliance of Canada, we welcome Amy Kishek, Legal Officer.
[Translation]
We also welcome Mr. David-Alexandre LeBlanc, Senior Research Officer to the National President Chris Aylward.
[English]
Please give our regards to Mr. Aylward. Before we ask you to make your presentations, on behalf of the National Finance Committee of the Senate, thank you for accepting our invitation and sharing with us your opinions, views and recommendations.
I have been informed by the clerk that Ms. Daviau will make the first presentation, to be followed by Ms. Cooper and Ms. Hendel, concluding with the presentation of Ms. Kishek.
At this time, Ms. Daviau, the floor is yours.
Debi Daviau, President, Professional Institute of the Public Service of Canada: Good morning. My name is Debi Daviau, recently re-elected to another three-year term as President of the Professional Institute of the Public Service of Canada. Our union represents some 60,000 professionals across the country, most of them employed by the federal government, including the lovely lady to your left, who is a member of Professional Institute of the Public Service of Canada.
Thank you for the opportunity to appear before you this morning to discuss Bill C-62, a piece of legislation that directly affects the vast majority of our members. I am also proud to be flanked by so many great women, both on the side of the senators and here representing unions.
I appreciate that you may have a number of questions this morning, some of which will be very technical, so I brought our general counsel and chief of labour relations, Isabelle Roy, to help answer these as accurately as possible from a legal perspective. As you know, Bill C-62 repeals provisions of Bill C-4 regarding essential services and dispute resolution processes in the course of collective bargaining, and of Bill C-59, regarding sick leave and disability programs. These bills were ideologically motivated, blatantly anti-labour pieces of legislation and neither has a place in a democratic society such as ours.
Let us start with Bill C-4. Bill C-4 significantly impairs the right to collectively bargain in violation of the freedom of association protected by the Canadian Charter of Rights and Freedoms and the International Labour Organization’s Convention No. 87.
Bill C-4 completely stacks the deck in favour of the employer, from corralling unions to the conciliation/strike route while keeping the exclusive and unchecked control over how many workers will actually get to strike and ensuring that arbitration or conciliation boards have their hands tied by the government of the day’s desire to pay. We strongly believe this is not in the interest of either side and most especially not in the interest of Canadians and the services they rely on.
Until Bill C-4 was passed, bargaining agents could select, at the outset of collective bargaining, one of two dispute resolution methods in the event of an impasse: interest arbitration or conciliation/strike. The essential services designation process was a result of negotiations and was subject to review by the labour board. The result was years of relative labour peace.
Bill C-59 also fundamentally upset the balance of power in collective bargaining in favour of the employer and undermined the very process of collective bargaining by granting the Treasury Board the power to unilaterally establish terms and conditions of employment with respect to sick leave and disability, in a manner that flouts basic collective agreement principles and notwithstanding standard labour legislation that has governed the party’s conduct for decades. The result of Bill C-259 is that unions bargain in good faith with respect to a critical issue for our members — sick leave — but facing a constant threat of having provisions negotiated over this each completely wiped away at the employer’s will.
While Bill C-59 was limited to terms and conditions of employment related to sick leave and disability, it has set a dangerous precedent for future bargaining and made it easier for future governments to grant similar powers to federal government employers whenever they do not want to engage in meaningful bargaining on important issues.
If we believe as a democratic society that we need to lay the foundation for fair collective bargaining, we need to ensure the balance is not tipped unfairly in either direction. Bill C-4 and Bill C-59 did just that. They legislated more power in the hands of the employer in a manner that violates employees’ Charter-protected freedom of association and both need to be repealed without delay.
The institute welcomed the newly elected federal government’s decision in 2016 to not apply these draconian measures during the previous round of bargaining. We are also pleased that the government has agreed that they are not to be followed during the newest round of bargaining that is just under way. In a true show of collaboration and creative thinking, we negotiated with the Treasury Board interim measures to have us isolated from the aspects of Bill C-4 and Bill C-59 that impact on bargaining.
The proof is in the pudding. The institute put its legal challenges on hold, the parties applied the interim measures they agreed to, and the last round of bargaining proceeded without strife and met the needs of both sides. We have ratified agreements in well over 90 per cent of the groups in the core federal services and separate agencies. The trust and relationships we have developed through the process will get us through these last outstanding agreements and place us in good stead for the next round.
But the government’s change and these measures must be taken off the books once and for all.
It is imperative that Bill C-62 be adopted as soon as possible so that labour relations in the federal service can work once again and evolve in a positive democratic framework. This is what the government promised us. It is the right thing to do and why we are asking you to proceed with the swift passage of Bill C-62.
Thank you very much for your time this morning. We are happy to answer any questions that you may have.
The Chair: Thank you.
Deborah Cooper, General Counsel, Canadian Association of Professional Employees: Honourable Members of the Senate, we would like to thank the members of this committee for inviting us to appear so we can provide our opinion this morning.
My name is Deborah Cooper, and I am General Counsel for the Canadian Association of Professional Employees, or CAPE. CAPE represents almost 15,000 public service employees and the majority of our members are economists and social science workers who advise the government on public policy. We also represent the translators and interpreters who work every day to preserve and promote our nation’s linguistic duality. We also have the honour of representing 90 analysts and research assistants employed by the Library of Parliament. CAPE is pleased that the government has come to the conclusion of the steps to repeal Bill C-4 and Bill C-59, the blatant anti-union legislation passed by the former government. While it has taken quite a bit of time for the government to fulfill its promises before the 2015 election —
The Chair: Ms. Cooper, would you slow down a bit for translation, please?
Ms. Cooper: For the translators, of course.
Senator Neufeld: The ones you represent.
The Chair: Thank you, madam clerk.
Ms. Cooper: CAPE is looking forward to seeing this bill go through the final steps of the legislative process as quickly as possible in order to help restore the balance in labour relations in the federal public sector.
As you are no doubt aware, under the guise of modernizing labour relations, the former government attacked the collective bargaining rights of federal public servants on a number of levels.
Bill C-4 came first and was problematic in many respects. It provided the government with undue leverage in the collective bargaining system in everything from the negotiation of essential services agreements to public service recourse procedures.
However, from CAPE’s perspective the most egregious changes were to the dispute resolution process. In particular, Bill C-4 took away the rights of bargaining agents to choose between arbitration or conciliation strike routes as a process for resolving collective bargaining disputes. In CAPE’s case it took away the right to arbitration, a process that had always worked well for CAPE members, and pushed them into the conciliation/strike route as a result. In addition, the former government even compromised the arbitration and conciliation processes by imposing new factors that arbitrators and conciliators had to consider when making a recommendation or award.
Our membership did not see this as productive in any way. In fact, through out our history, CAPE has tried to resolve issues with the government via vigorous collective bargaining and, where there is an impasse, through arbitration. As such, it is important that a truly independent process is available and able to consider all the relevant criteria without hierarchy. This provides procedural trust. Moreover, forcing a strike/conciliation position is not, in CAPE’s submission and in my colleague’s submission, in the best interest of Canadians. Rather, Canadians are best served where there are harmonious labour relations within the federal public service.
This is why the right to collectively bargain is recognized through international human rights conventions to which Canada is a signatory. As the Supreme Court has stated:
Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.
Moving on to Bill C-59, which took matters a step further and permitted the government to fundamentally change the long-standing and hard-fought sick leave and disability programs of public servants. Most disturbingly, it gave the government the power to do so unilaterally, bypassing the bargaining process altogether. CAPE, along with many other federal public sector unions, felt this legislation denied its members’ their fundamental rights under section 2(d) of the Charter, in that it did not allow for meaningful collective bargaining with regard to these workplace issues. Therefore, CAPE actively participated in a case before the Ontario courts which challenged the constitutionality of that legislation. Following the important decision of the Supreme Court in Saskatchewan Federation of Labour v. Saskatchewan in 2015, CAPE is confident that this Charter challenge would have been successful in overturning Bill C-59.
Needless to say, these changes to the labour relations regime by the former government led to a combative and unproductive labour relations environment in the federal public service. This has been problematic not just for our members and of or bargaining agents, but for everyone who works in the federal public service. As noted at the outset, CAPE believes it has taken far too long for the government to take these straightforward steps to turn back the clock to the labour relations system that was in place before Bill C-4 and Bill C-59. This lengthy delay of over 2.5 years since the election has unnecessarily prolonged this adversarial environment and we look forward to a new environment going forward.
CAPE is somewhat disappointed this bill fails to address some of the problems which have plagued the federal service regime since Bill C-4 and Bill C-59, such as the lengthy delays in getting cases to adjudication. This would have been an excellent opportunity for the government to tackle this important access to justice issues. In that regard we are open to meaningful consultations that could result in improvements to that process and urge you to provide additional funding to the Federal Public Sector Labour Relations and Employment Board to assist with delays which they do their best to tackle with the resources at hand.
Having said that, it appears that this bill undoes virtually all the difficulties created by Bill C-4 and Bill C-59. CAPE looks forward to returning to a labour relations system which is not perfect but much more balanced and fair. As such, CAPE urges you to ensure there are no further delays in providing this balanced voice.
On a positive vote, when CAPE made comments on Bill C-62 early in the process we noted that we hoped the government would be looking forward with a proactive pay equity regime as soon as possible. Since that time, some positive legislation was put forward last week which has been a long time coming.
It has been a good first start. We hope to see significant progress as that legislation and the accompanying work that comes with it moves forward.
In conclusion, we are pleased to see we are finally here with Bill C-62 and strongly urge you to move forward as quickly as possible to approve it. Thank you.
The Chair: Thank you, Ms. Cooper.
Ursula Hendel, President, Association of Justice Counsel: Hello. My name is Ursula Hendel and I am President of the Association of Justice Counsel. Thank you very much for having me. It is a pleasure to be here today.
The Association of Justice Counsel is the bargaining agent for more than 2, 600 lawyers, all of whom work for you and me as people of the Government of Canada.
[Translation]
I was pleased to hear the President of the Treasury Board say that Canada has a world-class public service. I strongly agree because our members work very hard every day to uphold the rule of law in Canada.
[English]
We are your legislative drafters and have helped ensure that the hundreds of bills that are before Parliament this session steer true, including this one. We are constitutional exports. We are subject-matter experts on complex legal issues like Native land claims, residential schools, immigration, criminal law, refugee and extradition law. Your civil litigators are currently defending Canada against $12.2 trillion in law suits. We work to protect public safety and ensure respect for human rights at the same time.
I have been a prosecutor for more than 20 years. Together with my colleagues, I prosecute acts of terrorism, organized crime syndicates, human trafficking, drug traffickers and environmental polluters. This is some of the valuable work that AJC members do for Canadians every day. I understand there is a perception that civil servants make more money than their private sector counterparts, but, certainly with respect to my membership of lawyers, the reverse is actually true. We do valuable and critical work and we do it for about half the price of what lawyers of comparable experience in the public sector would earn.
The AJC, which has a membership well versed in constitutional issues and highly concerned about the rule of law, is motivated to ensure that workers with treated lawfully and fairly. We share the concerns expressed by my colleagues to my right about the constitutionality of the current state of the law. That is one of the points I would make today.
The other is how the bill has caused harm to the people who work for you and me, as Canadians, among my membership; and, finally, how our members use their sick leave. I will deal with them in reverse order.
In relation to sick leave, unlike some of the other operational groups that work for the federal government, our members generally are not backfilled if they are off sick. If I am working on a multi-million-dollar litigation file or a terrorism file and it is assigned to me and I am not able to come to work, someone isn’t able to fill in for me that day. The prep work that I was supposed to do on the file that day simply doesn’t get done; it just sits on my desk and waits for me to come back, and I have to make up those hours.
Not only am I not backfilled, but I am not paid overtime. In fact, I am not paid at all for working overtime. I work overtime for free. The hours that I make up for being sick are really at my own peril, because now I am doing them after-hours and unpaid.
In terms of short-term illnesses, whatever the book value — this is a table of financial professionals. There is a book value attributed to that sick leave which is, I think, a bit different than the reality, because the reality is that there is actually zero cost to the taxpayer for the day-to-day short-term sick leave that our members use.
Long-term leave can sometimes be a bit different, but in reality it is not that different either, because the process of trying to replace a person who is gone won’t start until we know that they are gone for good.
If a member of my office gets very ill and is off for a long time, but we don’t know how long, that person is not replaced. What happens to their files is they get reassigned to the people who remain and there is no addition to the complement. Again, we are just working harder to take on the additional burden of our complement. In fact, being sick is seen as such a burden in a litigation office that I have personally — and I am not in the minority — gone to court in no humanly fit condition to do so, because the idea of not going to court was so personally unpalatable to me. I either had a major case, such as a sexual assault victim that I needed to show up for that I couldn’t let down, and — they work together — to saddle my poor colleague, who comes to work in the morning thinking they will have a rare day to prep a file but, no, they have to go into court and run a prosecution case that they have never even looked at because Ursula is sick and isn’t able to do her job.
Like I said, I am not in the minority at all. The vast majority of the people I work with view the idea of being sick as really inconvenient and something to avoid. Maybe that is not the case for all the 290,000 people who work for the Government of Canada, but I believe it to be true for my membership.
To talk a bit about the law, we provided written submissions that have some of the dry legal analysis for why we think this bill is unconstitutional. I will spare you that today. I am pleased that Minister Brison has told this committee that his department agrees with our analysis that the bill is unconstitutional. I think that is a very fair concession. I think it is a fairly clear concession and the result of the Saskatchewan Federation of Labour v Saskatchewan decision. I think it will save the government a lot of money in the long run, and I think he should be commended for it.
I would like to concentrate my last point on the impact the current law has had on our membership. We were one of the unions that did not reach a negotiated agreement, and we went to arbitration. Our collective agreement expired in May of 2014. We declared an impasse in December of 2016 and received an arbitral award in July of 2018, more than four years after it expired. It comes into effect tomorrow. It still hasn’t been signed, and the date that it comes into effect, it will have already expired, which is a bizarre state of affairs that is very difficult to explain in a straight, linear fashion to an ordinary person. It is convoluted, and I hope you will agree with me that it is completely unacceptable.
At least part of the delay was directly attributable to the state of the law. My colleague Ms. Cooper talked about the very negative working relationship that the bargaining units and the government were engaged in, and we were no exception. When the new government took office, it took some time to work out a new path forward, and that continued to contribute to the delay. Throughout that entire period, our terms and conditions of employment were frozen.
Reference was also made in this committee by the minister about the importance of attracting young people to public service. To give this committee an example, in one region in British Columbia in the last two years the Department of Justice has lost 50 per cent of its junior lawyers. The word is out among debt-laden law students that the federal government is not a good place to work.
The final point I want to make is that lawyers like my colleague are loath to strike. I talked about sexual assault victims and human trafficking victims. Just like I don’t want to go and tell them I am too sick, I don’t want to tell them that I don’t know if I am going to be able to prosecute their case next week because we might be out on strike. That is another example of why the choice is important.
I am out of time, so I will cut my comments short and just say that I agree that it is important to pass this bill as quickly as possible.
The Chair: Thank you, Ms. Hendel.
Now the chair will recognize Ms. Kishek, please.
Amy Kishek, Legal Officer, Public Service Alliance of Canada: Thank you for the opportunity to appear today. The Public Service Alliance of Canada represents more than 180,000 workers in every province and territory in Canada and some locations abroad.
Bill C-62, An Act to amend the Federal Public Sector Labour Relations Act and other Acts, finally restores some of the balance that collective bargaining in the federal service had lost through the passage of previous government bills C-4 and C-59.
Bill C-59, Division 20, as we have discussed, has taken away collective bargaining rights of federal public service workers by giving the government the unilateral right to amend sick leave provisions of collective agreements at any time. It is not free and collective bargaining when the employer has the power to impose a predetermined outcome, and Bill C-62 will reverse that power.
The Supreme Court has confirmed that the right to collective bargaining is a protected right under the Canadian Charter of Rights and Freedoms.
Subsection 2(d) of the Charter guarantees the right of unions and employees to act in common to reach shared goals related to workplace issues and terms of employment.
In 2007, the Supreme Court ruled that freedom of association includes the right to collectively bargain. Therefore, subsection 2(d) of the Charter would constrain the exercise of legislative powers that seek to restrain the scope of collective bargaining. That is what Bill C-59 had done. It restrained our ability to talk about certain issues that were taken completely off the table.
You have heard from Treasury Board President Scott Brison that negotiations are under way with federal unions to develop a more holistic approach to wellness and improve the current sick leave plan. He also spoke of the government’s belief that making these improvements must be made through negotiations, not unilaterally imposed by the government. We strongly agree with those sentiments.
We are aware of some of the shortcomings of the current sick leave regime and we are prepared to discuss options to protect our members’ health. However, removing sick leave from collective agreements and replacing them unilaterally and in the dark is not the answer. We believe government should be focusing on promoting healthier workplaces and ensuring that workers who are sick get the help they need, when they need it, so they can continue to deliver quality public services to Canadians, and we believe that we can work together to achieve this.
For example, PSAC has negotiated the establishment of a joint mental health task force. This was reached through our negotiations with Treasury Board in 2015. The task force is made up of an equal number of unions and employer representatives and has the long-term focus of improving mental health in the workplace. Since its inception, the mental health task force has issued three reports and ensured the creation of the Centre of Expertise on Mental Health in the Workplace, which is co-governed by a representative from Treasury Board and a representative from PSAC.
Improving the health and well-being of public service employees is a long-standing priority for PSAC. By adopting Bill C-62, we will allow the parties to continue to talk about mental health, about wellness within the context of the collective agreement, not just now but into the future.
Bill C-62 will also restore the rights that were taken away through the changes made by Division 17 of Bill C-4, changes to the Public Service Labour Relations Act. That has placed fundamental restrictions on our members’ collective bargaining rights, such as those affecting the designation of essential services. As has already been discussed, in 2015, the Supreme Court of Canada and the decision in the Saskatchewan Federation of Labour ruled that the right to strike is also protected by subsection 2(d) of the Charter. The court has held the right to strike is an essential part of meaningful collective bargaining process in the Canadian system of labour relations. And this is a finding that is supported by history, jurisprudence and by Canada’s international obligations.
What is most noteworthy about the Saskatchewan Federation of Labour decision is that the Saskatchewan legislation at issue is almost identical to the legislation put forward by Bill C-4. So we already know, and the government has already conceded, its unconstitutionality. Bill C-4, Division 17 violated members’ Charter rights of freedom of association and the right to collectively bargain, as well as the right to strike, by allowing Treasury Board to nullify unilateral terms ad conditions of existing collective agreements. It gave the employer authority to override many provisions of the Public Service Labour Relations Act, including the statutory freeze provisions that protect our members’ terms of employment during collective bargaining process. And of course, by giving the employer unilateral right and power to determine how essential services were designated. We welcome the passage of Bill C-62, which repeals these unconstitutional provisions.
PSAC, as you have heard, has filed two constitutional challenges to the two bills impacting our member’s fundamental bargaining rights. One was filed in March 2014 challenging Division 17 of Bill C-4. The second was filed in June 2015, challenging Division 20 of Bill C-59. Both court proceedings are currently adjourned pending the repeal of the offending provisions that were contained in those two laws. Of course, we have reached an interim agreement with Treasury Board, as of July 2016, which included various measures to address the concerns raised, including the choice of dispute resolution mechanisms, rules governing Public Interest Commission and arbitration boards, as well as essential services designations. This interim agreement continues in place for this round of bargaining. However, interim agreements do not provide certainty in the bargaining process for both parties going forward. PSAC will not be withdrawing its constitutional challenges until such a time as the outstanding and offending legislation is repealed.
We urge this committee to expedite the passage of Bill C-62. Mr. LeBlanc and I are available to answer questions.
Senator Marshall: Thank you all for your excellent presentations. I’m interested in essential services. We have heard from the management of some organizations. Could you tell us, starting with Ms. Daviau, what’s the status of the designation of essential employees or essential services right now? And all of you spoke about Bill C-4 and Bill C-59 compared to Bill C-62. How are essential services designated as it stands now, if they are so designated? And compare it between the two sets of legislation. I’m trying to get a handle on how essential services is being designated.
Ms. Daviau: I’m going to start the answer and then hand it over to our chief legal counsel, because these are the technical details I brought her for. In the past, essential services were designated by position. So if you were in a position that was required in order to maintain an essential set of services during a strike or some kind of job action, then you would simply go into work even though the strike was taking place and perform that service. That was by person. The change in the legislation designates it by position. And it doesn’t get renegotiated each round. As you can imagine, there is an enormous amount of change that happens in the public service.
While one position may be essential in 2014, it may not continue to be essential in 2018. There is very little opportunity to revisit those, as we used to each round. The most important problem is that we used to do this collaboratively. We sat together with employer reps helping us to determine the correct level of essential service designation. That was subject to a review by the labour board. Now it’s all within the employer’s authority to determine who is and who is not an essential service.
Senator Marshall: For the designated essential employees that you have now, how dated would that have been? You say it’s not done every round. So it could have been done two collective agreements ago. Is that correct?
Ms. Daviau: We struggled, when the legislation changed, to establish that first set of essential services agreements. I’m going to turn it over to Isabelle to address that distinction.
Senator Marshall: Looking at your membership of 60,000, could you also tell us approximately how many would be considered essential employees?
Isabelle Roy, General Counsel, Chief of Labour Relations Services, Professional Institute of the Public Service of Canada: The essential designation process will vary by bargaining units. It is a not a global number of our membership that I can give to you, and it does vary by round. The essential services process only applies to those bargaining unit who select the conciliation/strike route. So out of all of the institutes’ Treasury Board bargaining units, perhaps two or three per round will select to be on the conciliation/strike route. And you would only conduct the essential services exercise for those groups. I am sure you have heard witnesses talk about the length of time it takes to negotiation essential services. It is a lengthy process. And it is a process that, if it’s done correctly, at some point you can build on every round and you don’t have to restart. As our president suggested, you don’t start with a black slate; it is a matter of updating. But it is important to understand that the process is a joint process that begins with the employer providing a list.
I’m speaking of life before Bill C-4, which we are trying to repeal. The essential designation process starts with the employer providing a list and rationales as to why certain positions should be essential. When those rationales are not provided, it’s very difficult for the bargaining agent to be able to engage in meaningful and productive discussions about essential services. This is because it is the employer’s onus to justify why these positions should be essential and why there are a certain number that should be essential, et cetera. So the delay that was spoken of is not one that’s entirely attributable to the bargaining agent. It really is a joint exercise. And I do believe that the collaborative way in which we approached the last round, where we reached an interim agreement and decided to take a different approach to essential services by agreeing to certain timelines with each other, was a more constructive way to do it.
So there is a way to make this process go faster that entails good faith, but also that doesn’t abrogate any rights of bargaining agents to have a review by a labour board of these decisions.
Senator Marshall: When there is a conflict, who decides? So if the government wants certain positions to be considered essential but the institute or the union doesn’t, how is conflict resolved? I know that the employers are people representing the organizations, and say it’s done by consensus, which makes it sound happy, rosy. But how is conflict resolved?
Ms. Roy: After Bill C-62 was passed there is a right to ask the labour board to make a decision as to whether a service is essential, what level of essential services are required and which positions are essential.
Bill C-4 took away the right to access the labour board. That is a process that we have built into our interim agreement and continues to exist.
Senator Marshall: So under Bill C-4 the employer could arbitrarily designate? That’s the same with all organizations? Thank you very much.
Senator Pratte: Thank you for being here this morning. When some of your organizations appeared in front of the committee in the House of Commons, some of you asked for a change to Bill C-62, in the manner that essential services would be determined to take out the mention that it should be done without regard to the availability of other people to provide the essential service during a strike. Your demand was based on the Saskatchewan decision. Have you abandoned this demand, or is there a reason why it wasn’t mentioned this morning?
Ms. Kishek: We raised that proposal at the house committee and chose not to adopt or put that amendment in place. Our interest in that change remains, but we are looking at the overall benefit of this bill and believe it restores many fundamental collective bargaining rights that have been lost for a number of years. We welcome those rights being restored. There are other examples raised today of some of the deficiency of the Public Sector Labour Relations Act. At the time there were so many iterations of that legislation and it is due for a review. We anticipate that we will have other opportunities in the near future to bring forward amendments like that. The language there preceded Bill C-4. It is language that had previously been in the historic legislation. We anticipate we’ll have other opportunities to raise this, we are not putting that amendment to you today.
Senator Pratte: You mentioned in your presentation, I’m not sure exactly how you said it, but that your union was aware of some problems with the sick leave regime and that you were willing to work with the government to solve these problems. Can you tell us what the problems are in the sick leave regime and whether this can be addressed in a negotiated, collaborative way?
Ms. Kishek: There is nothing that can’t be negotiated. We have the pleasure of representing both public sector workers and workers in a myriad of other environments across the country — some in the university sector, the mining sector. We understand that there is always creativity and involvement of our membership in crafting different bargaining proposals. In terms of envisioning what the future of sick leave would look like, we have already begun that process. They outlined the task force on mental health as the brainchild of collective bargaining between Treasury Board and PSAC. That task force has issued three reports — which we may wish to circulate and share with the committee — that indicate some of the thinking about sick leave, wellness and mental health. It is a complex issue, and there are many facets to it.
David-Alexandre LeBlanc, Senior Research Officer, Public Service Alliance of Canada: Some of the discussions we have had with employers are around case management and return to work protocols. There is some discrepancy amongst the various departments. Not every employee is treated the same. Those are some of the discrepancies we see in the current regime.
Senator Pratte: There is the perception that the sick leave system in the public service is ripe for abuse. It’s too generous and some people abuse the system. What’s your view or reply to this?
Ms. Kishek: I certainly can’t think of examples of evidence of rampant abuse. In fact, that’s been disproven time and again. After Bill C-4 was put forward, even the Parliamentary Budget Office found that the government of the day had inflated the sick leave usage numbers to favour an argument to remove sick leave from the bargaining table.
That is not borne out in reality. When you look at what the sick leave allotments come out to, it’s 15 days across the year. That’s 1.25 days per month. For someone with a chronic illness that is one migraine a month which is covered. It is not disproportionate with the needs of the average person. The accumulated sick leave is not monetized. It can’t be withdrawn without proof of illness, without a provable need to rely on that sick leave.
I was listening to the statements made by Mr. Brison last week and the officials from the Treasury Board who indicated that of the people who retired in 2015 and 2016, about a thousand had exhausted their banks. That’s easily attributable to people who, at the end of their career, are becoming increasingly sick. They need to exhaust their bank in order to depend on long-term disability, which is not easy to qualify for. It’s adequate and necessary.
The Chair: Ms. Daviau, Ms. Cooper, Ms. Hendel, do you have any comments on that same question?
Ms. Daviau: I will precede my comments by letting you know where our members stand with sick leave. About 50 per cent of our members actually have more than the existing 13 weeks of short-term illness leave in their banks. Over 25 per cent actually have 26 weeks, which is the new period that we are talking about. We have some of the largest banks in the public sector, which demonstrates very little abuse of the existing sick leave system.
There are gaps. Some of the gaps include young people who haven’t had an opportunity to accumulate sick leave, although statistics show they are less likely to become ill than older public servants. Another gap includes people who are experiencing chronic and recurring illnesses, which some of my colleagues referred to. Those are the people who are suffering from the gaps because, once you have used up your bank of 15 days, if you have an illness that requires more than that you get yourself in a difficult position with sick leave. Those are the people we are interested in solving those gaps for.
I wanted to sound in on this question because PIPSC, along with a couple of our other union colleagues, have been actively negotiating a new employee wellness and support plan. I believe Minister Brison referred to it during his testimony. I’m the co-chair of that committee. We are very far down the road to resolving the issues and gaps identified at the start of this process and expect to complete those negotiations by the end of this year. Although there are gaps, it is why we agreed to enter into a process to try to fix the sick leave regime. It affected a very small portion of our membership, but affected them very badly. We are 95 per cent down the road to solve those problems together with collaborative and fair negotiations.
Ms. Cooper: With respect to gaps, there is also a gap after the fact. Let’s say somebody has cancer and has 100 days of sick leave in their bank. They have to use it all up before they are eligible for the long-term disability plan. At the end of that, when they are ready to come back to work and they have managed to get through the illness — which is not easy because the entire regime of applying and going through the process is very difficult — very few people come back 100 per cent on day one. Usually the doctor’s recommendation is to come back for two or three days a week until they can build themselves up to go back to work permanently. If you have used up your sick leave, you are now coming back to work with no pay. The insurance company, for the most part, will not pay your wages for those days in that gap. So there is also a gap at the end of a sick leave, which is very difficult because people need to come back properly if they are going to have a successful return to work. If you are forcing yourself back to work for four or five days because you are getting no pay, this creates a whole other problem.
There are a number of gaps with the system, but I’d like to talk a little bit about the question with respect to potential for abuse. I think in any regime you will have someone who may attempt to do that, but for the most part, our members have a ton of sick leave. Most people, when they retire — and you have probably heard the stories from people: I have 200 days, 150 days. This is indicative of a dedicated public service who rarely uses their sick leave.
I realize the perception is out there that public servants have a lot of sick leave, but very few of them use it. When you retire with 250 or 300 sick days, you get nothing for that. It is an insurance plan that, if you are lucky, you never had to use. Those 250 days go off into the ether, and you hopefully go happily into retirement. It is not something that you get any kind of pay for, or anything else, and I know that is also a misperception.
I think the levels of abuse are very exaggerated. They could happen here and there, but mechanisms are in place to ensure that people are legitimately sick, and very rarely do we have to use them.
Ms. Hendel: With respect to the question of gaps, our members are most likely to suffer from burnout, sometimes contributed to by vicarious trauma. I think we could be doing a better job of managing their workload and mental health so they don’t reach that state of absolute inability to come to work because they have been pushed past their breaking point. That’s where I see a gap.
The Chair: Thank you.
[Translation]
Senator Moncion: Ms. Daviau, you mentioned your negotiations with Treasury Board to reach a new agreement on short-term and long-term disability and mental health. What are the benefits of this ongoing negotiation in relation to Bill C-62, for sick leave specifically?
[English]
Ms. Daviau: The lion’s share of those negotiations is related to sick leave. That’s really what it’s about, under a different name: Employee Wellness Support Program. But the importance of this regime we are speaking of is that it doesn’t just talk about days off; it talks about wellness, case management, proper centralized oversight of the way illnesses are classified and treated within the public service. It also starts to look at domestic violence and other related issues that can be addressed through employee wellness. Our members have done amazing work in advancing in those other areas as well.
The point we are trying to make is that there is no need for Division 20 of Bill C-59. There is no need for it because we have all the mechanisms that have worked for us since the late 1960s, when we started negotiating with the federal public service, to actually get together and do this the right way. We have demonstrated clearly to this point that it’s quite possible, without a gun to our heads and without legislation that goes against our Charter rights to freely negotiate on behalf of our members.
[Translation]
Senator Moncion: My question is more specific than that. There are some important changes in the new negotiation document. It refers to the number of days during which an employee may receive their full salary with short-term and long-term disability insurance. So why do employees still need 15, 200 or 300 days of sick leave in the bank?
[English]
Ms. Daviau: I’m hesitant to talk about the details of that agreement because we haven’t finalized our negotiations on it. However, we did have a detailed agreement going into those negotiations about some baseline provisions so that we would have the same understanding of where we were going. Some of these statistics are in there. We had identified that there would be nine days of sick leave that people could use for individual illnesses. So if you had a cold and were off for a couple of days — a migraine, if you will — that isn’t related to a chronic and recurring illness, in that case, after three days, once you hit your fourth day, that’s covered off by a new sick leave regime for shorter-term illnesses.
However, any leave you take that is three days and less would have to be covered off by those nine days — with the exception of those with chronic and recurring illnesses, who would be treated differently because they are sometimes having to take a day a week, or two days a week, and are not necessarily accumulating more than three days of leave. Those people would be identified, case managed, and even their one day of leave to get radiation therapy, receive treatment for their diabetes, or whatever the case may be, would be covered as part of the shorter-term regime at 100 per cent of their salary.
Senator Moncion: Thank you.
Ms. Daviau: Did that get all the way there?
Senator Moncion: You’re almost there. It’s how it has impacted in Bill C-62.
Ms. Daviau: Bill C-62 is to reverse the legislation that essentially gave the government the right to make all these determinations on their own without negotiating. So how it applies is that we have demonstrated that there is no need for legislation like Bill C-59 because those negotiations have occurred quite successfully and addressed the issues that both the government and we raised at the start of this process. So that’s the linkage. The legislation was simply a trigger for the government to be able to do whatever it wanted. That was unnecessary, because it’s been able to do what it needed to do based on facts and evidence and a meaningful negotiation process.
Senator Moncion: If the new program is signed on and brought forward, then the sick leave that is within Bill C-62 can then be changed because you won’t be needing these banks of sick leave?
Ms. Daviau: The provisions that they proclaim to want to adjust through Bill C-59 are being meaningfully negotiated through our process. Yes, you are correct; they wouldn’t need Bill C-59 or the triggers that exist in Bill C-59 because all of those matters are currently under negotiation between our union and the Treasury Board Secretariat.
Senator Moncion: Is it the same negotiations for all the —
Ms. Daviau: No. There were two sets of negotiations under way. The PSAC had signed a memorandum of agreement, and we had signed a memorandum of agreement. I can’t speak for the process under theirs but just the one under ours, which also includes representation from CAPE, Canadian Association of Professional Employees; IBEW, International Brotherhood of Electrical Workers; and ACFO, Association of Canadian Financial Officers, where Deborah Cooper used to be a representative.
I also want to point out that although Deborah Cooper is representing CAPE today, her last job was as General Secretary of the National Joint Council, which is where employer and labour come together to resolve a lot of problems like this. So don’t hesitate to dig into her insight as to how the employer views these negotiations.
The Chair: Ms. Cooper, the floor is yours.
Ms. Cooper: Up until June I was General Secretary of the National Joint Council. The point I would like to make is not specific to Bill C-62 and sick leave, although at the National Joint Council we do oversee appeals to the disability and dental plans and negotiations for the health care plan. In my experience, anything that is meaningfully negotiated between the parties is far better than anything that is imposed on the parties unilaterally. It’s hard for the unions to come back and say: We didn’t like that. You did something — riling up the members, talking to the Canadian public and saying this is not something we wanted. When you work together, not only do you end up with something that everyone has bought into, but you have received the input that the unions have that the employer doesn’t always have.
We hear things from members that are different from what the employer hears. We have statistics that are different from what the employer gathers. It behooves everyone to put all of that together to come up with the best possible plan you can.
Under the legislation we are hoping to appeal, this was changing everything into unilateral decisions. This is exactly what we think should be changed to make sure that we have that input. At the National Joint Council, that works for a lot of things. We sit together and work through a number of directives to ensure they work together. This is exactly what we are looking for today — a quick approval of this — so we can get back to the regime where we had meaningful consultations on all issues with respect to labour relations.
[Translation]
Senator Forest: Let me say something from the outset. Various sectors are striving for gender balance. I see that women are very highly represented in this sector, in which you look after your colleagues’ interests and negotiate good working conditions. I commend you for that. Mr. LeBlanc must feel like many women do in certain activities. Enjoy it!
Further to the remarks by my colleague Senator Pratte, regarding your request to remove clauses 121(2)a), 123(6)a) and 127(6)a from amending clause 9, did I understand correctly that this is no longer an issue for you at this time?
[English]
Ms. Hendel: It is not being proposed at this time, whether it is still an issue is open for debate, but we anticipate there will be a review of the whole public sector Labour Relations Act in the future, and we will have other opportunities at that time.
Ms. Daviau: I wanted to say exactly that. What we are doing here is setting the field back to where it was before the passing of this legislation. It’s not an admission that this environment was perfect, only that it was a whole lot better than where we stand today. I expect the government will want to enter into a meaningful consultation on what still needs to be tweaked and fixed for negotiations to be most efficient and effective for all parties. Changes such as that can be brought up at that time.
For the moment, the simplest thing to do is set it back to an environment that we worked with for the better part of the last 60 years so that we can just get down to the business of negotiating collective agreements and go back to serving Canadians, which is what we do best.
[Translation]
Senator Forest: So, the whole is more important than certain details within it.
Ms. Hendel, I was a bit surprised to hear you say that, if one of your members had a case and got sick, they would not be able to spend the day preparing the case and would then have to do unpaid overtime for that purpose. I do not understand how things work in the private sector. If lawyers in the private sector are sick when they have a case with a court deadline, how does that work? Can you explain what happens in such a situation?
[English]
Ms. Hendel: We are one of the only two bargaining units in the federal government, I believe, that does not have overtime as part of our collective agreement. What we do have is more control over our hours of work. We have a collective agreement that requires us to work an average. We certainly far surpass that average. We have some flexibility with respect to how we structure our work.
It is also true that the nature of our files makes benchmarking challenging. The question of how long it should take me to prepare my murder case is not easy to answer either by someone who is supervising or even by me. I think it will be an easy murder case, and then something unexpected happens or develops over the course of the preparation of a file or even the conduct and carriage of the prosecution. A witness may become incapacitated, die or change their testimony. There are all kinds of dynamism in the nature of litigation.
It is difficult to control the work. Like lawyers in the private sector who don’t get overtime, control over our workload is seen as a priority for our members. That is one of the reasons why we negotiated as one of the very few groups that are represented for flexible hours of work as opposed to paid overtime.
[Translation]
Senator Forest: I am not trying to ruin your argument, but if I understand correctly, it is similar to the system for managers who do not have paid overtime as such.
[English]
Ms. Hendel: No. I think professors and lawyers are the two groups that work in the federal government that don’t have overtime. Management has some flexibility. We have a provision for management leave. We can be given some discretionary time off, after the fact, to compensate for exceptional circumstances. It is not entirely as rigid as that, but it is generally a very small fraction of the supplementary hours that we are working.
[Translation]
Senator Forest: In conclusion, if you are preparing a case and get sick and work overtime, your supervisor could for instance give you a long weekend or some compensatory time.
[English]
Ms. Hendel: There is a mechanism to be provided with some leave.
[Translation]
It is not a pay increase, but rather days of paid leave. It is a small number of days, but it does exist.
Senator Forest: In closing, I am very concerned about recruiting the next generation, considering the country’s demographics. All organizations are facing this problem. Do you think the bill will help make the public service a more attractive place to work?
[English]
Ms. Hendel: I can start. It certainly is an improvement. It is a step in that direction. Everyone before you has said that there are still some issues. It can still benefit from being modernized, but it is a reversal of some things that made working for the federal government very unattractive.
Ms. Daviau: I want to let you know that we are not replaced when we are sick. It is just a question of working harder in the days to come. I also wanted to qualify something on overtime. Your boss is not likely to give you overtime pay, even for those of us who collect overtime pay, in order to make up for work you didn’t get done yesterday when you were sick. It is usually about their priorities and their deadlines that drive them to want to pay out overtime to employees.
I wanted to give you context on overtime. When unions negotiate overtime provisions at time and a half or double time in pay, the reason for it is that we want to discourage the employer from using employees for overtime. We want to encourage the employer to have proper levels of resources so that overtime isn’t required. That goes right back to the whole notion of wellness, burnout and balance. I think you all recognize the need for some balance in life also; therefore, a job that has long demands of overtime may put a lot of money in your pocket but may not do anything for your overall wellness in the long term.
We are not in favour of finding opportunities to do overtime; it is the reverse. Nonetheless, we are not replaced when we are sick. That work has to be picked up by other colleagues who have to work harder or you need to do it when you return. The cost of sick leave is a bit of a misnomer when the government first passed this legislation. The cost is more of an accounting exercise than it is an actuality in terms of dollars and cents.
[Translation]
Ms. Cooper: May I add something in response to your question?
[English]
You are asking if Bill C-62 will help bring back recruitment and retention. I think it can do nothing but assist with that. This is about engagement of the public service, engagement of the students who might want to join the public service when they are graduating from university or elsewhere. If you have something that dictates how things will be done unilaterally, it is hard to get the engagement of the current employees. People want to be part of it. They want to feel like they are part of it. Bill C-62 brings that back.
[Translation]
Ms. Roy: As to attracting and retaining a new and younger workforce to replace the people who are retiring, I would simply point out that unions are facing the same problems as the employer, namely, encouraging their younger members to step in. Unless Bill C-62 is passed, it will be much less appealing to work for one’s public service union since the main obstacle for us all is the legislation that gives the employer all the power.
Let there be no mistake, Bill C-4 completely changes the balance by giving the employer too much power and making the bargaining process completely unfair.
Finally, to respond to something Senator Moncion said, Bill C-59 is not null land void.
[English]
Bill C-59 is not a moot bill.
[Translation]
So if Bill C-59 remains in force, the employer will continue to have that opportunity at any time, regardless of the status of bargaining, to change the existing sick leave and disability regime, which once again gives the employer the power to do that. So, yes, Bill C-62 is very important, not only for employee engagement, but also for the engagement of union members.
Senator Forest: Thank you.
[English]
The Chair: Ms. Kishek, do you have any comments to add on that one?
Ms. Kishek: I will add a small point regarding members’ involvement in unions. Our bargaining proposals at PSAC come from the membership. They are driven by members’ involvement in the bargaining process that starts with bargaining conferences that invite hundreds of members to attend and put forward their proposals. We welcome proposals through other mechanisms. And those members are then elected and sit as part of our bargaining team. So the more ways in which we can engage them and say that their views will be heard, that the employer will not put the kibosh them and come with a unilateral proposal on something as crucial as sick leave, the more engagement that we will have. And it is because of member involvement that we will be able to get creative. As Mr. Brison likes to say, agile public service; those ideas will be coming from the membership through union involvement.
The Chair: Before the chair recognizes Senator Deacon from Nova Scotia, I have a question. Since we are talking about deterrence and/or relief, in your experience — I know PSAC because Mr. Aylward was here and gave a presentation on the Phoenix report — would Phoenix be a deterrent to encouraging young, bright people to come to the government?
Ms. Kishek: Absolutely. It has made a lot of workers feel disempowered. I don’t know if there is another way to state that more plainly, but I think you are absolutely right.
Ms. Hendel: To add to that, a young lawyer has gone through at least three years of undergraduate work, except in Quebec, and three years of law school, followed by bar admission process. That is extremely costly. When they start their careers, most of them — most of us — are heavily in debt. The idea of not knowing if you are going to be paid when or correctly is a significant concern.
The Chair: Thank you.
Ms. Cooper, do you have a comment?
Ms. Cooper: Absolutely. There is no other way to put it. You hear about it all the time. I have had people say to me, “If this were in the private sector, people would just not be working.” That is an amazing testament to what public servants do, because people are showing up to work even though they are not getting paid properly.
It is having an impact all over the place, even in terms of donations to the United Way. People don’t want to mess with their paycheque in any way, shape or form because of Phoenix. I would think this would be impacting recruitment. And I hear the question, no matter where I go in the country. We have members all over the country and to be frank, I don’t always hear questions specific to the public service when I am in Alberta, New Brunswick or wherever I may be, but I hear this one everywhere. People are asking me about Phoenix. If people are asking, that means the students are aware.
By the way, talking about engagement and meaningful consultation, I would say that there was not that in the development of Phoenix.
The Chair: Thank you, Ms. Cooper.
Ms. Daviau: I think 100 per cent that is factoring into recruitment issues. However, I would be remiss if I didn’t point out we already started having recruitment and retention issues before Phoenix took place, certainly of those in my professional membership. Those are problems that are likely not for this committee today but a lot of them are related to compensation and terms and conditions of employment.
But I can also raise such issues like tax fairness or scientific integrity having factored into our members’ commitments or decisions as to whether or not they wanted to work in the federal public service. In fact, a few years ago I was going around presenting to young people why the current state of affairs was not acceptable for new professionals to come enter the public service.
I don’t want to hang recruitment and retention issues simply on Phoenix. In fact, I continue to be utterly amazed at the amazing commitment of public servants during this time. We are coming up on three years of some of the most untenable situations you can imagine — people putting off getting married, having families, retiring, big life decisions like that; not being able to put their kids into hockey or whatever. It most certainly has to have an impact on recruitment and I am sure we will see that on the numbers as they start to flow out.
The Chair: We don’t want to deviate from Bill C-62.
Ms. Daviau: I know, but you said Phoenix and you triggered something.
Senator C. Deacon: Thank you to each of you for your presentations today. I come from the world of tech start-ups and I identify with what your workers do every day because the best legislation, strategy and policy all comes down to execution. You have to get people that “get ’er done.”
Most of you touched on the issue of productivity. To me, productivity is a key element of generating pride and health and happiness in any job. If we feel really productive, are doing good work and we have benchmarks against which to measure that, I think we go home every day feeling satisfied and share that in our lives.
I have a tough time judging so many of the elements of this bill because it comes from a world that is completely separate to me. I am a new senator and I come from a world where if you don’t work, you don’t get paid. It is pretty simple.
Could you help give insight into your organizations’ strategies where you are focusing on illustrating the productivity of the members in your various organizations? You made a comparison to the private sector in terms of salary, but that doesn’t really get at productivity. It is only one of the elements. It is results and salary together. It is so different and challenging — I know it is. However, to me, it is part of earning public trust around any of these sorts of issues. I think if the public felt this was going to demonstrably help improve relations, get over challenges like Phoenix and help increase the ability of our public servants to do good work, those productivity measures would be a good part of that.
Can you tell me a bit about the work that you are doing in that regard? I think that is helpful in giving me the confidence that these elements are heading us down the right road.
Ms. Daviau: I can certainly start. First, productivity matrix is in the realm of managers, not unions.
Senator C. Deacon: I argue that it is an important part for every employee to share in, right?
Ms. Daviau: I agree with you; I just mean that we are not developing matrix for measuring performance. However, we are hearing from a lot of our members about the important work they do on behalf of Canadians. We are focusing a lot of our bargaining demand around things that are in the public interest. I think the important distinction, with you coming from the private tech sector, is that you are working for your bottom line in the private sector. In the government we are out there working on behalf of critical services for Canadians. It is a different indicator.
You need to look no further than — and I am trying to put this in a context that you are familiar with — government projects such as Phoenix, website amalgamation and email transformation to understand that public servants are much better placed to deliver on these complex projects than system integrators from the private sector. We know the systems and are trained in the systems. We understand how they work together and how they are designed to operate without failure. We are best placed to address issues as they arise in those projects. If there is a problem in a project — and Phoenix just one of many examples — where you have made a mistake in the contracting process of a project, there is no ability to go back and adjust that when dealing with a private sector company. As opposed to acknowledging that we have gone off in the wrong direction, pulling our whole workforce back and send them in a different direction with few associated costs.
I can’t answer directly what the indicators of performance are. We have certainly run campaigns on our own to highlight the work of our members and how it is critical to members. I see that PSAC has an ongoing campaign like that as well. The U.K. certainly thought we were a well-performing public sector when they did their study earlier this year. They determined that Canada had the best performing public sector in the world, despite the fact that we weren’t being paid correctly. That is not even my own biased viewpoint about how amazing we are, but someone else’s much more objective assessment of the performance of the public service.
You are not wrong to think that Canadians don’t understand this. They don’t. They just enjoy their great services every day. But if one of those services would fail — if Phoenix would happen, for example, to Employment Insurance or to Canada Disability Plan, there would certainly be an uproar from the Canadian public about what we weren’t doing.
I think the proof is in the pudding of many years of productive service on behalf of Canadians in service of whatever may be the government of the day’s agenda.
Senator C. Deacon: I think you just made the case for why we need to get the bench mark out there to promote productivity. It is misunderstood in many cases.
Ms. Daviau: I agree. I just don’t know how that helps us to assess whether or not an anti-labour legislation should be overturned.
Senator C. Deacon: I am not proposing that. Productivity measures and their importance — I think it is an important element of demonstrating value and giving people the confidence of public trust.
Ms. Kishek: As Debbie pointed out, PSAC has put out a campaign around Phoenix to raise awareness of the extensive breadth of services our members are involved in. We have launched that very public campaign with that intent in mind.
It is about a metric of, what is productivity and how do we measure that? Some services have no comparison. We work with the FBs, with border services officers. They don’t have an equivalency with the private sector and they provide an unparallelled service that often goes unseen. They are in that advertisement about Phoenix to remind Canadians about the kinds of protections and services that we provide as the Public Service Alliance of Canada members every day.
In other areas, we are not as competitive. I understand that for our members under the technical services agreement it is not a question of productivity. In fact, the rate of pay we offer is not commensurate with the competitive rate of pay in the public sector. In a lot of ways our members are very productive and underpaid for the work they do when compared to the private sector. There is a lot of variation.
Senator C. Deacon: Those productivity measures could be helpful in arguing for increases. That is what I am trying to get at.
Ms. Kishek: We will bring that up at the bargaining table. We will remind the government of that.
Ms. Cooper: I would agree with an excellent example of the FBs because I spent a year at CBSA as a director and Canadians would notice if the borders were closed. That includes at the airports and everywhere. That is not just crossing it at land crossings.
There are quite a few services that we need to highlight. There are so many things that Canadians do, and it is not just people at desks, it’s everywhere. It’s the nurses in the North. You are probably reading some analytical papers today prepared by our members that work for the Library of Parliament. There are a number of services.
I was going to add another point, but I think it has already been covered so I will leave it at that.
The Chair: Thank you.
[Translation]
Senator Bellemare: Thank you for your presentations, which were very well structured.
My question is not specifically about Bill C-62; rather, I have a question about what you said. We do not often have the opportunity to hear union representatives talk about the future of work and its impact on collective agreements.
You said there are major changes coming for lawyers in the future, and that you are now experiencing those changes in several sectors. What impact will those changes have on bargaining?
This is a broad topic that we might not be able to discuss today, but I would like to hear a few comments from you on that, if you have any.
Ms. Daviau: We are discussing a few aspects of the future of work. First, employees have to be prepared for the future of work, and we note a gap in this regard in government policy.
We know that training and professional development are also very important topics of discussion, and we try to talk about them more at each round of bargaining. We know that employees have to be paid fairly in relation to their counterparts in the private sector. A study is needed to ensure that the government is able to pay professionals fairly. We hear that researchers, doctors, nurses and accountants all earn 25 percent less than their counterparts in the private sector.
[English]
Ms. Cooper: I think the biggest issue to mention is training and development. Not only do we want to see the time given for that, but also the funds given for that.
Taking it back to the last question, I wanted to add one thing about the metrics, because government is collecting metrics, but they are often not shared with us. If we can have that collection of metrics, it helps us to understand even better. We are collecting our own, but government is also collecting, and we’d like access to that as much as possible. The more open we are, the more it provides that meaningful consultation that I spoke about before.
Ms. Hendel: One of the difficulties that everyone faces is public misinformation. Coming back to the idea of sick leave, I think there was this widely permeating belief that these sick days were sort of free and we just cashed them out; we all retire eight months early. It takes some educating to realize that that, in fact, is not true.
The same thing happens with the perception that the public service is overpaid. If you start to actually look at the data, it’s not true.
The government really should be the biggest champion of its workers in correcting those misperceptions and defending the incredibly hard work that we do, sometimes with no pay at all, under Phoenix. But sometimes in the past what has happened is that we’ve turned on each other, and so the government has used the civil service and has capitalized on this perception that some Canadians have about their civil servants. I think one of the things we could be doing better is working together to champion the causes, on the basis of the data that actually exists.
Ms. Kishek: In addition to what’s already been said, I would add that one of the ways we desperately need to modernize the public service is around staffing. That is something that is outside the realm of collective bargaining because of the way it’s been legislated.
I firmly believe, and I’m sure my colleagues would agree with me, that the best way to address the issues around staffing — whether it’s protracted, continuous contract work, the use of outside consultants or temporary help agencies — would be to bring staffing into the collective bargaining context so that we can have a say in that process and create a system that is actually responsive and adaptable. We have retention, advancement and recruitment issues in the public service, and I think a lot of these stem from staffing. Were the unions brought into that process, I think we’d all be a lot better off. The House of Commons is beginning to explore that, and we are keen to see that change.
Senator Neufeld: Thank you all for being here and explaining to us very clearly your thoughts. I get from your conversation and presentations that Bill C-4 and Bill C-59 are two terrible pieces of legislation and that the sooner they’re gone, the better; and it’s created a public service where it’s hard to get people to come and to be able to do good work.
Once that happens, and once Bill C-62 is in place, I get from all of you that it’s happiness; it’s going to be great; it’s going to be wonderful. How long before recruitment is easier? How long before the public service is feeling better about the jobs they do, and those kinds of things? How long will that take? A month, six weeks? Will it take a year? You have certainly made it clear on the negative side. Tell me, on the positive side with Bill C-62, will it happen tomorrow morning or next Friday?
Ms. Daviau: I personally don’t think the answer is quite that simple. The legislation is building into those problems that you mentioned, but it’s not the only factor in creating that set of problems. What’s important for me about the reversal of this particular piece of legislation — and it is currently our number one legislative priority — is that it puts us back in the driver’s seat, both the employer and the unions, to be able to sort these things out the right way. That’s what is really important about it because, as we develop those relationships and we come to collaborative solutions together, generally the improved labour relations environment starts to roll out and directly impact on workers and workers’ well-being, which results in better productivity and more opportunity to recruit the best and the brightest.
Quite frankly, I spoke about improved salaries, but public servants are far more concerned about their ability to do their jobs, their tools, their training, their professional development, the wellness in their workplaces, being free from harassment, than they are about whether they get a 1.5 or 2 per cent increase. So it doesn’t boil down to dollars and cents but, rather, all of those things that need to be addressed in order for you to have a healthy and performing public service.
From my perspective, that healing has already begun, simply because of an approach that recognizes the value of public service workers and that respects and values the contributions of the unions that represent them. That’s the first step towards a positive message coming from us — and I believe you do hear from us from time to time — and it’s key to employees building trust with their new employer in both the short and long term. Unfortunately, our relationship with government ebbs and flows. When we are having a good relationship with government, employees are generally happier; and when we are having a bad relationship with government, employees generally become more and more unhappy.
The Chair: Ms. Cooper, any comments?
Ms. Cooper: I wish it could change overnight, but it will take some time. I think “healing” is the operative word. What this does is restore procedural trust. If you have trust that you can file a harassment complaint, for example, and that there is a procedure in place and you can trust that process, the outcome is a lot more palatable, whether you like it or not. If you have no procedures in place, at the end you had no input into it and you are not likely to accept the outcome.
This is the same thing. This is restoring a whole bunch of procedures that had been changed to become unilateral. This is allowing employees to see that procedure back in place, to gain the procedural trust, to heal and to move forward. It’s an investment in your employees, and it’s an investment for Canadians through the employees and through our members. It’s going to take a bit of time, but this is a great start to get there.
Senator Neufeld: If I go back home in a little while and ask people I know who work for the public service, people who are actually on the front line and who are providing this work that you talk about — and they do provide good work. I want to tell you that. I’m not disputing that for a moment. But they will feel much happier in their job a month from now, two months from now or a year from now, than they are today? That was the question.
It will probably make your job a lot easier, I’m assuming. That’s what I understand you are telling me. But the average person out there working for the federal government, who is providing good service today, under what has been described as bad conditions, will they feel happier tomorrow if, in fact, this happens? That was my thought.
Ms. Daviau: I think they will. I believe that, as mentioned, it would help restore some trust in the process and the people that we have to get through these complex problems with. However, I also believe that wellness in the public service is not going to start to show up until we have dealt with the Phoenix crisis. So not to go back there, but public servants will not be well until they can count on getting their paycheque every two weeks, because it’s tough to find wellness in life without stability of income. We are pleased that that process is also going forward, and we hope we can expect, once public servants are being paid correctly, that they will be a much more visibly happy group of public service employees.
The Chair: Thank you.
Senator Marshall: My questions are for Ms. Hendel because she said a couple of things I was very interested in. One is sick leave usage. You said, when you spoke about your members, that even if they aren’t feeling well, they will go into work because they know they have to do it. Have you compared your sick leave usage with the sick leave usage of other associations and other unions?
Ms. Hendel: Yes, I think we have.
Senator Marshall: And what does it show?
Ms. Hendel: I think we are lower than the national average.
Senator Marshall: It is lower? Thank you. That’s very informative. On the additional provisions you were talking about for overtime, where you were saying your members are not eligible for overtime, but there is some provision there for additional days off, could you elaborate on that? I’m familiar with it a situation where — it wasn’t a union, actually — management are entitled to overtime after the first 35 hours are worked in an eight-week period. There is no compensation, but after that there is some compensation. Can you talk about what the overtime provision is and whether it’s part of the collective agreement or whether it was something introduced as policy in your organization?
Ms. Hendel: Yes. It is in our collective agreement. There are two provisions that are a little different than many others. One is this notion that we have, at least in theory, some measure of control over our work week and our hours of work. It doesn’t work as well as I would like in the sense that there is often a lot of pressure for us to have people in chairs and to work a regular standard work week, notwithstanding that the collective agreement allows us to manage our hours and even days of work. And workload is also a big issue. It may be that my collective agreement allows me not to come in on Monday because I was working all weekend waiting for a jury to come back, but I have my next case to prep. So even though the collective agreement may say so, and even though my manager might say so, I can’t say so because that case needs to be prepped. So in I go. But we do have, at least in theory, some flexibility with respect to managing our own hours of work.
The second issue is the management leave provisions, and they are in our collective agreement. My manager has the ability to authorize five days of leave per year. And then if I want more, it has to go quite a bit higher up the chain. And there could be more. And in practice, we did do some surveying of our members. There is a very wide divergence of how many people within the organization are getting management leave but it is a very small ratio. I would love to have something that says after a certain number of hours —
Senator Marshall: That’s my next question.
Ms. Hendel: It is on our bargaining radar. We do think our management leave provisions are not working very well for us, particularly given the broad spread. In some offices the ratio of time off to management leave is as high as 14:1. For every 14 hours you are working, you get an hour. And it does vary across regions. Some managers are more generous than others. And some of it relates to operational requirements. I might want to not come in on Monday, and I really would like to take the day off, but all I can manage is breakfast because that file needs to be prepped and I’m the only one to do it.
Senator Marshall: I’m reading into what you are saying that there is no comparison between overtime with your members and overtime in other unions or associations. The data is not there, is it?
Ms. Hendel: There isn’t. We don’t have an overtime regime. And even if we did, you can’t just work overtime because you want it. I think it has to be given to you. Your manager has to approve it first. So there is often a difference, I would suspect — I’m way out of my depth — and there is likely to be a divergence between the overtime that’s approved and documented and the overtime that’s actually worked.
Senator Marshall: So really neither your overtime nor your sick leave would be comparable to other unions. It would be like comparing apples and oranges, comparing your sick leave usage or your overtime usage with those of other unions or associations. Is that right?
Ms. Hendel: Certainly the overtime is practically impossible to compare.
Senator Marshall: And your sick leave is lower.
Ms. Hendel: I was just passed a note that, together with my colleagues at PIPSC, at the AJC, we have the biggest sick leave banks in the public service. So we have the largest —
Senator Marshall: So does the sick leave bank keep growing? If you were with the public service for 30 years and you did not use sick leave, you could retire with a bank of 450 days.
Ms. Hendel: I have 283. But they are dead to me. If I were to go back to the public service and I were to retire, those 283 days I had accumulated over the course of my career will have lapsed.
Senator Marshall: Is there any cap? If somebody had a large sick leave bank of, say, 300 days, and they did have a seriousillness, there is no cap on what they can use, is there? They can use their 300 days?
Ms. Hendel: Correct.
Ms. Daviau: I want to jump in. As I mentioned earlier, we are busy negotiating a new regime and in that regime, the old large banks of the past would not be accumulating. So there would be a very small amount of leave that’s allowed to carry over from one year to the next, but that would be capped at just a few days. The issue that the employer had raised around the value of banks, albeit an accounting value and not a real value, can be addressed through those negotiations. And it is certainly one of the pieces that we are addressing to try to eliminate the large banks.
If I could point out another thing, as Ursula noted, we do have very large banks in PIPSC and AJC. In fact, a lot of public servants have large banks because they don’t use their sick leave. Nor will they ever use their sick leave. So that story of the person to took the final year off to exhaust their sick leave bank is a very rare circumstance, keeping in mind that there are people who manage sick leave and won’t allow you to take sick leave without cause. There may be somebody who gets that sick that they exhaust their bank at the end of their career, but they are pretty few and far between.
As I have said to my members, if we have the right kind of sick leave system, one that covers people when they are legitimately sick regardless of how much you have in the bank versus somebody else, then the banks won’t be worth anything at all, but maybe a badge that says I accumulated 350 sick days. Because the truth of the matter is, as a single parent who was, when I started this job, in the middle of my career, I never accumulated a day of leave from one year to the next. So there are big gaps there as well.
Senator Marshall: So what would have happened to the sick leave blanks under Bill C-4 and Bill C-59?
Ms. Daviau: That was not clear. It was clear that the government was going to determine that unilaterally without consultation and negotiation, as per our collective agreement.
Senator Marshall: So there was no decision on what was going to happen to the banks if anything was going to happen to the banks?
Ms. Daviau: I think it was clear to us that the banks were going to disappear. The one thing that they were after was to be able to write the banks off the books. And that was clear because they actually wrote the banks off the books after they passed that legislation, and the Liberals had to reintroduce the value of those banks.
Ms. Cooper: I wanted to answer your question about whether you could use the 300 days. You have to use the 300 days before you are eligible for long-term disability. You must use up all your days before you are allowed to go on to the long-term disability plan.
Senator Marshall: Regardless of what is in your bank?
Ms. Cooper: Regardless.
Senator Marshall: Even if you only had 10 days?
Ms. Cooper: Yes, but 10 days wouldn’t get you to the eligibility period for it. So now you have to gap that way. You would have to apply for EI disability benefits or sick leave benefits to get you over that hump until you reach the requirement period.
Senator Marshall: So what is the time frame?
Ms. Cooper: Thirteen weeks. So if you have 10 days, you would be paid for two weeks. Then you would be saying to yourself, “What do I do for the next 11 weeks?” You could potentially apply for EI sick leave benefits, but that wouldn’t really replace most people’s income.
Ms. Daviau: In the new system we are trying to negotiate, it would be 26 weeks of the shorter term period before you would be eligible for long-term disability. Because there are two numbers out there currently.
Senator Marshall: Thank you.
Senator M. Deacon: Thank you very much. It is complex, different, unique, and they are very similar.
When we talk about performances, benchmarks, culture and information, one of the things — and I learned it in the Senate as well — is there is misinformation. You talk about misinformation and perception, but misinformation and perception does become embedded in reality for many of the folks making decisions and living in these roles and under these rules. I’m wondering what kind of things, either collectively as a group of organizations working together or as individuals, that you are doing to recognize how we can be as tight and clear in informing, both inward and outward, on what the real information is. It has to be a constant challenge. I’m talking about something more than having a great communications guy or gal. What are some of the strategies you are using to combat that challenge?
The Chair: Do you have any comments on that?
Ms. Daviau: I can take a stab at it. That’s our million-dollar challenge, as you can imagine, because we are not just up against big government. We are up against big business and big money. We could never have enough money to speak at the volumes that our opponents do. However, we do represent very large numbers of people. I guess our very first tactic is to ensure that all of our members are engaged in the work that we are doing, as we have collectively 250,000 members who are able to help spread the good word about the work that’s being done.
I think some of the polls that we have seen over the last few years demonstrate that Canadian’s perceptions of public services are changing. So either there is something we are doing that is successful, or there is something the government is doing that has pushed them that way, but public services are supported by Canadians — not always senators and not always MPs and not always union leaders, but public services are appreciated and respected in Canada from my perspective.
As an example of that, I was doing a media interview when this U.K. study came out talking about how we were the best in the world. They wanted to hear from Canadians if they agreed that the Canadian public service was the best in the world. It was one of those call-in shows, so they interviewed me. Then the reporter was encouraging Canadians to call in with their story — “Do you think this is deserved? Call in and tell me about your experiences with government.” And nobody called in.
Five years ago, there would be people frothing at the bit to talk about how terrible government is, but nonetheless, nobody called in. And the poor guy had to keep telling his own stories about his experiences with public service. He spoke about a positive experience working with municipal government representatives on a community project, and he spoke about a positive experience working with people at his passport office. I want to say the interview was in London.
It is just to show you that both the survey results and the reaction of Canadians is changing about public services. That’s because, I think, we as labour representatives have made it our priority. We have done a lot of collaboration together to allow those messages to go out. More importantly, we have engaged in much more meaningful labour relations with this government, and that has allowed us to work in partnership to express the value of public services. A little more of that would probably go a long way.
The Chair: In my 10 years as a senator here in Ottawa, I think this is the first time that I have seen the four organizations that represent the public servants of Canada at one meeting. I want to thank you for sharing your comments, views, recommendations and vision of going forward with the public servants of Canada. There is no doubt in our mind that they are the best in the world. So thank you.
What you have said is in public, so if you want to add any comments in regard to Bill C-62, please do not hesitate to go through our clerk, in writing, or giving her a call.
Honourable senators, the next meeting is tomorrow evening.
(The committee adjourned.)