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The Professional Institute of the Public Service of Canada > News & Events > Communications Magazine > Vol. 36, No. 3, Summer 2010 > Time to Review Public Service Laws
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Time to Review Public Service Laws

As a bargaining agent representing some 59,000 professionals across Canada’s public sector, the Institute has been directly impacted by the changes brought on by the Public Service Modernization Act (PSMA). The PSMA took effect in December 2005. It includes the Public Service Labour Relations Act (PSLRA), the Public Service Employment Act (PSEA), amendments to the Financial Administration Act (FAA) and other acts as well.

The government gave responsibility for the five-year review of the legislation to Treasury Board. The Institute and other bargaining agents would prefer that the legislation be reviewed by Parliament, not the employer (Treasury Board). Despite these objections, President Corbett presented the Institute’s recommendations for revising the PSLRA and PSEA to Treasury Board on July 7, 2010.

Constitutional Challenge

The Institute’s comments are in keeping with the constitutional challenge it launched in May 2008. The challenge seeks to invalidate provisions contained in the Public Service Labour Relations Act prohibiting federal employees from negotiating protections and improvements in a variety of areas, including pensions, employee classifications and staffing.

The challenge is based upon a landmark Supreme Court of Canada decision rendered in June 2007, which reversed 20 years of prior case law, that collective bargaining is a constitutionally-protected freedom under the freedom of association guarantee set out in Section 2(d) of the Charter of Rights and Freedoms. In that case, known as the British Columbia (B.C.) Health Services case, the Supreme Court struck down restrictions on the scope of collective bargaining limiting the right of health care workers in B.C. to negotiate key job security protections.

In light of the Supreme Court’s recognition of the fundamental importance of the right to collective bargaining, the legislative restrictions preventing the bargaining of a wide range of critical workplace issues including classifications, pensions, and staffing, can no longer stand.

PSMA: Biased Legislation

The Institute considers the PSMA to be skewed legislation favouring the employer. The Institute perceives this imbalance as a result of its experience with procedures set out by the PSEA and the PSLRA.

The preamble of the PSLRA recognizes the government’s commitment to the “fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment.” In spite of this affirmation, under the PSLRA, the Institute has experienced a pattern of unnecessary and costly delays resulting in the inefficient and unfair resolution of disputes between bargaining agent and employer. To this end, the Institute recommends that the PSLRA be amended to empower the Public Service Labour Relations Board (PSLRB) to expedite essential services agreement negotiations, the administration of grievance complaints, and the resolution of complaints and delays impeding the progress of collective bargaining. To prevent abuse of process, the PSLRB must adopt the practice of screening duty of fair representation complaints and be given the authority to declare repeat complainants vexatious litigants.

If it is to fulfill the promise contained in its preamble, the PSLRA must evolve so that federal public service labour law more closely approximates private sector labour law, and public sector labour law in other jurisdictions. The PSLRA needs amending to express the fact that it is the common industrial relations jurisdiction for the federal public service, and the PSLRA and PSEA must evolve such that temporary help agency employees, casual employees, and dependent contractors are protected under federal labour relations law. The PSLRB should also acquire jurisdiction relevant to industrial injuries and the compensation of injured employees. The Act must also ensure that Board orders do not supersede the internal by-laws and regulations established democratically by bargaining agents in the regular course of their affairs.

Grievance Procedure

Concerning the grievance procedure, the PSLRA or its Regulations must ensure that priority is given to deal with complaints, and that the treatment of grievances based on human rights complaints is coordinated with the Canadian Human Rights Commission and the Human Rights Tribunal. The Act must be amended to recognize and permit harassment grievances. Where the parties settle a dispute via a memorandum of agreement or a similar instrument, and a PSLRB adjudicator is seized with a grievance, the adjudicator must have jurisdiction over the implementation of that instrument. The Public Service Employment Act (PSEA) must similarly be amended to provide the Public Service Staffing Tribunal (PSST) with the authority to issue declaratory orders on the employer or on the Public Service Commission (PSC).

Collective Bargaining

With respect to collective bargaining, the PSLRA or its Regulations need to impose a mandatory essential services timetable and require the employer to forward essential information pertaining to bargaining unit members to bargaining agents free of charge, with the PSLRB encouraged to order disclosure where required. Any bad faith bargaining complaint must be given priority by the Board and be handled expeditiously. In the event of an impasse in collective bargaining, the PSLRA must ensure the timely appointment of Public Interest Commissions (PICs) and interest arbitration panels. Where the nominating parties remunerate the parties’ nominees to a PIC, ministerial approval of the honoraria should be abolished, and honoraria paid to adjudicators and arbitration board members need to reflect competitive market rates for these services.

Consultation and Co-Development

Finally, in order to be meaningful, true consultation and co-development of workplace improvements require definition in the Act and a redress mechanism through a PSLRB complaint procedure in the event of failure to conduct meaningful consultation.

Compared to the leading provincial private-sector and public-service labour law regimes in Canada, the PSLRA and PSEA are restrictive and biased in favour of the employer, rather than striking a balance between the parties.

In its submission, the Institute proposed that the PSLRA evolve into a “true” labour code similar to the Canada Labour Code by making “public service labour law more consistent with private sector labour law.”

The Institute believes the Canada Labour Code should apply to the public service as a minimum basis in establishing the rights of employees as opposed to the total vacuum which exists in the public service.

PIPSC wants a clear statement of how its input will be reviewed by a legitimate legislative authority. The Institute will be making public statements critical of the review process and will use all available channels to ensure its concerns reach parliamentarians.

Visit www.pipsc.ca to obtain a complete copy of the Institute’s recommendations on the review of the PSMA.

Overview of PIPSC Recommendations

Amend the PSEA, PSLRA and Financial Administration Act (FAA) to define contractors and casuals as public service employees, and allow the Public Service Labour Relations Board (PSLRB) to make determinations in the case of disputes over their employment status.

Prioritize and expedite the processes related to bargaining, arbitration and adjudication

  • Prioritize hearings for grievances in discharge cases
  • Expedite bad faith bargaining complaints and reduce delays in the collective bargaining process
  • Expedite handling by PSLRB of essential services negotiations

Safeguard the integrity of internal bargaining agent affairs

  • Amend the PSLRA to ensure the democratic functioning of bargaining agents is not superseded by PSLRB decisions
  • Amend the PSLRA to prevent abuse of process by complainants
  • Amend the PSLRA to provide employee contact information for ratification and strike votes at no cost to the bargaining agents

Make federal public-service labour law more consistent with private sector labour law

  • Permit harassment grievances under the PSLRA
  • Create a roster of mutually-agreed-upon arbitrators and adjudicator-
  • Apply market rates to honoraria paid to adjudicators and arbitration board members, and share the costs between the parties

Strengthen union-management consultation

  • Include definitions of meaningful consultation and co-development in the PSLRA
  • Create a redress mechanism for failure to conduct consultation in accordance with the Act

Amend the PSEA to set a high standard for staffing decisions

  • Restore merit as the true basis for staffing in the public service to ensure best qualified candidates are selected
  • Expand the range of grounds on which staffing actions may be challenged
  • Provide the PSST with the authority to issue declaratory orders on the employer