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37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, March 25, 2003

0900

The Vice-Chair (Mr. Tony Valeri (Stoney Creek, Lib.))

Professor Jean Mercier (Full Professor, Department of Political Sciences, Laval University, As Individual)

0905

0910

Le vice-président (M. Tony Valeri)

Prof. Jean Mercier

The Vice-Chair (Mr. Tony Valeri)

Prof. Jean Mercier

The Vice-Chair (Mr. Tony Valeri)

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.)

The Vice-Chair (Mr. Tony Valeri)

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance)

0915

The Vice-Chair (Mr. Tony Valeri)

Mr. Robert Lanctôt (Châteauguay, BQ)

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause (President, Social Science Employees Association)

0920

0925

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. Andrew Muller (President, Society of Energy Professionals; Professional Employee's Network)

0930

The Vice-Chair (Mr. Tony Valeri)

Mr. Paul Forseth

Mr. William Krause

Mr. Paul Forseth

Mr. Peter Engelmann (Legal Counsel, Engelmann-Gottheil; Social Science Employees Association)

Mr. Paul Forseth

0935

Mr. Andrew Muller

Mr. Steve Hindle (President, Professional Institute of the Public Service of Canada, Professional Employees' Network)

Mr. Paul Forseth

Mr. William Krause

Mr. Paul Forseth

Mr. Steve Hindle

Prof. Jean Mercier

Mr. Paul Forseth

Prof. Jean Mercier

Mr. Paul Forseth

0940

The Vice-Chair (Mr. Tony Valeri)

Mr. Robert Lanctôt

Mr. William Krause

0945

The Vice-Chair (Mr. Tony Valeri)

Mr. Claude Danik (Director of Professional Services, Social Science Employees Association)

Mr. Robert Lanctôt

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. Tony Tirabassi (Niagara Centre, Lib.)

0950

Mr. Andrew Muller

Mr. Tony Tirabassi

Mr. Andrew Muller

Mr. Tony Tirabassi

Mr. Andrew Muller

Mr. Steve Hindle

Mr. Tony Tirabassi

Mr. Peter Engelmann

0955

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. John Bryden

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. Claude Danik

Mr. John Bryden

1000

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. Ken Epp (Elk Island, Canadian Alliance)

The Vice-Chair (Mr. Tony Valeri)

Mr. Ken Epp

Mr. Paul Forseth

Mr. Ken Epp

Mr. William Krause

Mr. Ken Epp

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

Mr. Ken Epp

Mr. Andrew Muller

Mr. Ken Epp

1005

Mr. Andrew Muller

Mr. Ken Epp

1010

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

The Vice-Chair (Mr. Tony Valeri)

Mr. Robert Lanctôt

1015

The Vice-Chair (Mr. Tony Valeri)

Mr. Steve Hindle

The Vice-Chair (Mr. Tony Valeri)

Mr. John Bryden

Mr. William Krause

Mr. John Bryden

Mr. William Krause

Mr. John Bryden

1020

Mr. William Krause

Mr. John Bryden

Mr. Peter Engelmann

Mr. John Bryden

Mr. Peter Engelmann

Mr. John Bryden

Mr. William Krause

Mr. John Bryden

Mr. William Krause

Mr. Peter Engelmann

Mr. John Bryden

Mr. William Krause

Mr. John Bryden

The Vice-Chair (Mr. Tony Valeri)

Mr. Paul Forseth

1025

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

Mr. Paul Forseth

Mr. Steve Hindle

1030

Mr. Paul Forseth

1035

Prof. Jean Mercier

Mr. Paul Forseth

The Vice-Chair (Mr. Tony Valeri)

Mr. Robert Lanctôt

Mr. William Krause

M. Robert Lanctôt

Mr. William Krause

Mr. Robert Lanctôt

Mr. Peter Engelmann

1040

The Vice-Chair (Mr. Tony Valeri)

M. Claude Danik

Mr. Robert Lanctôt

M. Claude Danik

Mr. Robert Lanctôt

Mr. Claude Danik

Mr. Robert Lanctôt

Mr. Claude Danik

The Vice-Chair (Mr. Tony Valeri)

Mr. Tony Tirabassi

Prof. Jean Mercier

1045

Mr. Tony Tirabassi

The Vice-Chair (Mr. Tony Valeri)

Mr. Claude Danik

Mr. Tony Tirabassi

The Vice-Chair (Mr. Tony Valeri)

Mr. Paul Forseth

The Vice-Chair (Mr. Tony Valeri)

Mr. William Krause

1050

Mr. Paul Forseth

The Vice-Chair (Mr. Tony Valeri)

Mr. Steve Hindle

Mr. Paul Forseth

1055

Mr. William Krause

Mr. Steve Hindle

Mr. Paul Forseth

The Vice-Chair (Mr. Tony Valeri)

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 023

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, March 25, 2003

[Recorded by Electronic Apparatus]

¿ (0900)

[English]

The Vice-Chair (Mr. Tony Valeri (Stoney Creek, Lib.)): I'd like to call the meeting to order, resuming our review of Bill C-25, an act to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts.

We have before us a number of witnesses, first from the Social Science Employees Association and also from the Professional Employees' Network, and we have Jean Mercier, who is a professor from the Department of Political Science, Laval University. Perhaps we can start with you, Mr. Mercier, and we'll come around the table that way. Introduce yourselves as you're going to begin your presentation.

Monsieur Mercier.

[Translation]

Professor Jean Mercier (Full Professor, Department of Political Sciences, Laval University, As Individual): Note to Publications on affiliation: Mr. Jean Mercier (As Individual)

I want to thank you for this invitation. I would like to thank Ms. Burke and Ms. Croteau for sending me the documents. I'm going to talk to you briefly about my area.

I am a professor of public administration and public management. I was head of my department for three years, which gave me some experience in administration and management. With respect to subsidized research, I have been interested in comparisons between Anglophones and Francophones in the management and automation of administrative processes.

I'm not familiar with either the federal government or the Government of Quebec. As I live in Quebec City, I am somewhat more familiar with the provincial government, but I'm going to try to offer you my thoughts on the bill and the documents I've seen on the bill.

I've been asked to be as specific as possible. I'll tell you that, for an academic, being specific is sometimes a great challenge, but I'm nevertheless going to try.

[English]

Let me make a resumé of my presentation. First of all, I know I will be limited to 10 minutes, so let me go ahead right away.

I have a few main points, about four or five. The first one is, the public sector is different and the public sector should not try to mimic in all respects the private sector.

My second point is that economic scientists are not unanimous in recommending private sector arrangements. In fact, people who have looked into this question of private versus public and have spent a great deal of time, their whole lifetime, on it have come to very nuanced conclusions. The recommendations with respect to the new public management are that it has yet to be evaluated. We've been in that mode for about twelve or fifteen years, but new public management has not really been thoroughly evaluated at this point.

I'll finish with personnel management, which is, I think, the focus you're most interested in.

The public sector is different and it attracts different types of people. I think that's important.

¿ (0905)

[Translation]

That's important as regards the bonuses, for example, or the performance incentives. It may be thought that the public sector attracts different personalities and that those personalities may be less interested in matters such as bonuses and performance premiums than people in the private sector. I believe that people who go into the public sector are fundamentally interested by longer-term questions and often have different personalities, and that that will be even truer in the years to come because, as you know, as a result of demographics, people who go into the public sector will increasingly have chosen to go into that sector because they will have had the choice.

So it's important to consider the type of person who goes into the public sector. This question has often been addressed from the standpoint of qualifications, but that's not really how it should be addressed. It's more a question of personality.

So my main conclusion in this regard is that short-term wages, bonuses especially, are perhaps of less interest to people who go into the public sector than those who go into the private sector.

[English]

My second point repeats briefly what I said earlier. There is no absolute superiority of the private sector over the public sector. Although we have been accustomed to thinking this in the past 15 years, again, people who have spent their lifetime studying this, and I mention American economists such as Ronald Coase and Oliver Williamson, do not come to this conclusion. They come to the conclusion that there are different types of organizations a society needs, and the public sector is one of these types of organizations. It is different. It has different characteristics. One of the things it should not do is try to imitate the private sector in all respects. In some respects, yes, and I'll come to that a little later on.

In case I forget, I want to point out something that seems unrelated to what I'm saying now, but it is. It's the fact the surveys we do in the public sector can give the impression that things are not going well. I would just add that these surveys are often deceiving inasmuch as we compare them to surveys in the private sector because people in the public sector say more frankly what they think. They feel more secure in giving the full extent of their opinion, including their dissatisfaction, as the case may be. People who are unsatisfied in the private sector, especially in small organizations, simply leave, so they're not there to answer the questions or to express their dissatisfaction.

The big drawback, the big impediment, of the private sector is what economists call “transaction costs”. When you contract out, when you parcel out some of the work, there are some transaction costs. If you have a type of work that is very interdependent, such as most of the missions of the public sector are, then you accumulate the need for these transaction costs. This is the big drawback of parcelling out work to the private sector.

¿ (0910)

[Translation]

I see the time passing. I have two final points, starting with the evaluation of the new public management. Many new recommendations that are made for the public sector come from the new public management. This new public management has in fact been subject to very little evaluation, even though it is very much interested in evaluation itself. Much of the information we receive and which is critical of the new public management is recent, dating back two or three years.

What can be retained from the private sector, however, is flexibility, and here we may have discussions with other experts who are here today. I believe one of the things we can learn from the private sector is flexibility in human resources management.

I'm going to conclude on the question of personnel management. In the public sector, there has always been a balance between the right of staff, the right of the public and the right of the manager. I understand the proposed legislation as a new balance.

Le vice-président (M. Tony Valeri): Mr. Mercier,

[English]

do you have anything specific you would speak to with respect to the bill itself? Is there anything in the bill you would want to see amended, changed specifically?

Prof. Jean Mercier: As I said earlier, it's always a challenge for university types to be specific. If you give me two or three minutes, the most specific elements I have are in the next two or three minutes. I may come to some other things a little later on.

The Vice-Chair (Mr. Tony Valeri): You have a couple of minutes left, so why don't you take it?

Prof. Jean Mercier: I think the interpretation of the balance between public and private has some pertinence in the way you're looking at this legislation. It might not be pertinent to specific articles, but it is in how you look at the thing.

I understand this legislation as being a new equilibrium between the rights of the employees, the rights of management, and the rights of the public, in the sense that it enhances the rights of the public. It wants to give the public--the client, as it were--a greater role, and the managers. The new equilibrium will necessarily downplay somewhat some of the procedural rights and some of the heavier procedural elements of the protection of the employees. I understand that the main move of this legislation is in that direction.

I may not agree with some of your other experts on this question, but basically I think it's a good idea. The public sector will be able to offer managers a flexibility that, while never attaining that of the private sector, will go in that direction somewhat. In the context that you want to attract managers in the next few years, managers will be able to go different places. They will have a choice because of the demographics. Giving them a freer hand in managing will make them consider the public sector, and if you want to attract managers, that's a good thing.

That's basically what I have to say.

The Vice-Chair (Mr. Tony Valeri): Thank you.

Just before I move to the Social Science Employees Association, Mr. Bryden has a point of order he'd like to exercise at this time.

Mr. Bryden.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank you, Mr. Chairman.

I simply want to let members of the committee know that at one of our earlier meetings I served notice of motion for certain documents from the Privacy Commissioner, Mr. Radwanski, including his personal expense accounts for the last two years, the organization of the Privacy Commissioner's office, and an explanation as to why he did not want to be part of the Access to Information Act.

I understand from the clerk that despite his expression of reluctance he has responded to these requests to some extent, and the clerk has documents that will be distributed. I would like to examine these documents first, Mr. Chairman, to determine whether I should go ahead with my motions that I served notice on earlier.

I just want to put that on the record so other members are aware of it.

The Vice-Chair (Mr. Tony Valeri): Okay, thank you.

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you.

As witnesses have come before us, I've repeatedly asked that they be very specific in their comments related to the bill. At this stage the bill, in its basic concept and philosophy, has been passed in the House of Commons, so comments to that regard are too late.

But at this point we need to look at specific sections where one word or another, or a clause, is missing or needs to be added. That's the kind of testimony we need.

Time is limited, so I hope those comments will govern the submissions we receive today and in the future. I hope to hear some good information today from the experts available.

¿ (0915)

The Vice-Chair (Mr. Tony Valeri): Okay.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): I'm pleased that Mr. Forseth has repeated the request I made last time. I find we're wasting time. It's not the witness who is a waste of time, but we're no longer at this level; we're at another level. We're talking about Bill C-25. This witness should have come in a more general context, when we were talking about renewal of the public service and the new culture.

That's why I asked last time that witnesses be screened. Everyone agreed, but that wasn't done. In fact, I don't think there was a decision, and that's what's unfortunate. We had asked the clerk to phone the witnesses to ask them to suggest amendments or additions to Bill C-25.

We should advance more quickly and not have to hear another 10 witnesses provide testimony that has something to do with the subject, but not with Bill C-25. We don't have to work on that aspect; we have already worked on it. Perhaps we're going to work on it again afterward, if we want to continue talking on endlessly. No, that's not where we are.

I'm pleased that the Canadian Alliance has made the same request as the one I made last time. I repeat that we are here specifically to see whether we can do something else to improve Bill C-25. I think this is the twenty-fifth time I've heard the same speech on the public service. That's unfortunate for you, Mr. Mercier, but I would like us to do some screening in this regard.

[English]

The Vice-Chair (Mr. Tony Valeri): Thank you, Mr. Lanctôt.

I think all of the witnesses can attest that they were contacted by the clerk and asked to be very specific in dealing with this bill as a result of our prior discussion in this committee. This is the second time we've had this go around in this committee. Obviously, the decision of the committee is quite clear. I would certainly stress to the witnesses before us this morning that they do their utmost to comply with that request by the committee members. As you can see, the more specific you are, the greater you'll be able to contribute to the work of this committee.

I'll now go to Mr. Krause.

Mr. William Krause (President, Social Science Employees Association): Mr. Chair, thank you very much.

We'd like to thank the committee for having us appear today as a witness. When we respond to your questions, I'll be assisted by our director of professional services, Mr. Claude Danik, and Peter Engelmann, our legal counsel.

As you know, SSEA represents some 8,500 individuals who provide economic and social science services to Canadians. We also represent individuals who assist parliamentary committees as research officers.

We want you to know at the outset that in general we support the objectives of this legislation. We believe in a cooperative labour-management relations regime that supports a healthy and productive workplace. We support a collective public service that is essentially non-confrontational in nature. We further support flexibility in staffing when it's combined with reinforced safeguards to protect merit.

While the measures of this legislation are a step in the right direction, we do remain concerned. There's a possibility that our objectives may not be realized owing to some needed improvements.

Before discussing our recommendations, we'd like to comment on several areas of the bill where we are supportive. These specific comments are in addition to those we have mentioned in our brief. Our apologies to the committee. The schedule for getting this submission together and appearing before you, needless to say, has been rushed, and therefore we didn't mention some of these areas. We'd like to now.

We note that under the proposed Public Service Labour Relations Act discrimination grievances can go to an adjudicator as well as to the Human Rights Tribunal. We believe this will result in more timely and effective action, and our members thank you.

We also note that proposed section 51 is privative, such that decisions of the board will be final and binding. We believe this is important in discouraging unnecessary litigation. Both management and labour have an interest in this.

Proposed section 53 creates an advisory board on compensation. That is indeed desirable. However, there may be a need for more clarity here. You certainly could elaborate on the composition of such an advisory board to ensure there is both impartiality and integrity.

We note that proposed section 226 gives the Public Service Labour Relations Board remedial powers, such as awarding interest. Again, that is another step in the right direction, and we thank you.

Again, I apologize that those were not specifically mentioned in our brief.

Finally, we note that subsection 37(1) of the Public Service Staff Relations Act is unchanged. This maintains the employees' right to arbitration or a strike in the resolution of their bargaining impasses. Our members have always relied on arbitration as a method to resolve their disputes with their employer, and we are appreciative of the fact that this right remains entrenched in the legislation.

Before proceeding with our recommendations, I would like to mention two areas of concern, which again owing to time could not be included in our brief. They are important. Proposed section 41 of the Public Service Labour Relations Act gives the board authority to summarily dismiss a matter without a hearing. Proposed subsection 40(2) gives authority to the same matter that is frivolous or vexatious. We find that the discretion of proposed section 41 is too broad and of concern to our members. If a matter is not frivolous or vexatious, then it should have a hearing.

Similarly, we note that proposed section 227 of the Public Service Labour Relations Act allows an adjudicator to dismiss a matter without a hearing, while proposed section 228 implies that decisions may be rendered without an opinion. We believe that written opinions are important to bring closure on issues and to prevent future cases being advanced unnecessarily. Good written judgments are an asset to both parties. Both management and labour find that it helps them to resolve potential areas of disagreement. So we certainly are concerned about the implication of proposed section 228 that there may not be a need for written opinions.

Moving on to our recommendations, let me make it clear that our suggestions are designed to improve the bill in the public interest, to have better labour-management relations, and to see effective staffing. These recommendations start on page 10 of our brief.

Our first recommendation is simple. We'd like proposed section 8 of the Public Service Labour Relations Act to be amended so that consultation committees are conducted in good faith. We have some words to give you on that.

Secondly, we'd like proposed section 9 to be amended to include a dispute resolution process in the case of co-development initiatives. Without such agreement we are merely talking about consultation, not co-development. We feel it is important that parties to co-development develop an appropriate mechanism to resolve differences, while recognizing that such disputes will be exceptions, not the rule.

I might digress for a moment to inform you about Industry Canada, which has already put together a co-development product for its labour relations.

¿ (0920)

I preside over meetings, as well as the deputy, Peter Harder. We've already decided upon a dispute resolution mechanism that is agreeable to both labour and to management. In this case, it's the decision of the deputy minister. So we think it's important that there be dispute resolution mechanisms so parties can always come to an agreement at the end.

Moving ahead, we suggest that proposed subsection 76(1) be deleted. This permits the employer to withhold dues payments from a union. We believe such broad authority could be abused, with the intent of adversely impacting on the operations of an organization. This is more likely to affect a small labour union as opposed to a large one; nonetheless, it is a concern given the large numbers of small unions in our jurisdiction.

We believe section 11 of the current Public Service Employment Act should be retained. This would place an onus on the commission to appoint from within the public service, except where, in the opinion of the commission, it is not in the best interests to do so.

There's a preference for internal staffing in our recommendation. We believe this is an important element of both career progression and career development for our members.

Moving on, we also recommend that the Public Service Employment Act be extended to all other employees--for example, those at the Library of Parliament or employees of Parliament. Many employees of Parliament complain that they cannot compete in the federal public service. We have members working at the Library of Parliament who would like to have the same rights as all other government employees.

We further recommend to you that proposed subsection 77(1) of the PSEA be amended in order to extend the tribunal complaint process to appointments by deputy heads. Furthermore, we recommend that proposed subsection 77(1) be amended so that grounds for a complaint include the failure to fairly assess qualifications as a result of error and omission or improper conduct.

Our concern here is based solidly upon the latest survey of government employees, in which 30% expressed concern over the lack of perceived fairness. We believe strong rights of appeal create a strong foundation for correct action by managers.

I might add, the way the bill is currently worded, without the recommendation that we have made, it's quite possible that a competition or an appointment would be made where cheating occurred. There could be gross errors in omitting pages of a resumé. There could be other gross errors made that affect the final determination. Those would all be grounds for an appeal, because the grounds you have limited yourself to are abuse of authority and language.

So we have a concern that the process would be a further concern for most employees. There already is a very strong element of the employee population that feels they are being treated unfairly. We think lessening the grounds for an appeal would be a step in the wrong direction.

Finally, I would like to suggest something to you, and I also have to correct our submission to you.

We've referenced, in our final recommendation, section 230 of the Public Service Employment Act. I apologize to the committee. It's proposed section 230 of the Public Service Labour Relations Act.

We would like to have an omission of the reference to “opinion”. We believe termination or demotion should always be based upon just cause. Proposed section 230 would allow termination or demotion in cases of an opinion by the deputy head. Our concern here, of course, if you look at our previous comments that I made to you, is that under proposed section 230, it could be the opinion of the deputy head; and under proposed section 227, which we have also verbally mentioned to you, it's quite possible that an adjudicator could dismiss a matter without a hearing.

So we have given this bill a potential, under proposed section 230, for an opinion to be made to dismiss an employee, and then for an adjudicator to dismiss that employee without a hearing. We think this is totally unnecessary, because boards have the authority to dismiss matters that are both vexatious or frivolous, and that is a significant safeguard. We believe, therefore, as a safeguard to employees, any reference to opinion in proposed section 230 should be stricken, and we've given you the suggested wording for doing that.

That concludes my comments. I've tried to be brief, factual, and to the point, and I would like to thank you again.

¿ (0925)

The Vice-Chair (Mr. Tony Valeri): I would like to thank you in fact for this very specific brief. I think it is exactly what the committee is looking for as we continue our work on this bill.

Mr. William Krause: May I again give my apologies to the committee, that the time we were faced with, in putting our submission together, was difficult given the nature and size of the bill. I did mention in my testimony several areas where we didn't provide you with a written comment, but I hope you took note of my verbal ones.

The Vice-Chair (Mr. Tony Valeri): It's in the record.

Thank you.

Mr. William Krause: Thank you.

The Vice-Chair (Mr. Tony Valeri): I now turn to the Professional Employee's Network. Is it Mr. Hindle or Mr. Muller, please?

Mr. Andrew Muller (President, Society of Energy Professionals; Professional Employee's Network): Thank you, Mr. Chairman.

Good morning, honourable members of the committee. It is indeed an honour and a privilege to be here before you today to address the Professional Employees' Network's views on the sweeping legislation to modernize the public service.

My name is Andrew Muller. I'm the president of the Society of Energy Professionals. Joining me in this presentation is Steve Hindle, the president of the Professional Institute of the Public Service of Canada, and in addition I'd like to acknowledge Bill Krause, president of SSEA, who is also sitting at this table. His organization is also a member of the network.

The Professional Employees' Network is a national umbrella organization of nine unions representing a variety of professional, managerial, and technical employees in both the public and private sectors. The various member organizations belonging to the network represent a combined total of approximately 80,000 unionized employees across Canada. By way of examples, these unionized employees include scientists, professional engineers, middle managers, and information technology experts in the telecommunications industry, financial specialists holding professional accounting designations, middle- and upper-level managers in the public service, and so forth.

On behalf of the network I'm pleased to submit our views on an important employment right that we believe has been overlooked in Bill C-25. Comprehensive protection for employees in the federal public service who legitimately report wrongdoing that has occurred in the workplace is urgently needed. There have been numerous examples in recent years where this protection, commonly referred to as whistle-blowing protection, would serve the public interest by allowing employees to legitimately expose abuse without fear of retribution. Ideally, there should be statutory protection for whistle-blowers in both the private and public sectors.

Existing legislation in Canada provides very little legal protection to Canadian workers in this respect. What little protection does exist is extremely limited in scope to very narrow issues in specific statutes, for example, health and safety laws or environmental laws. Canada lags far behind in the field of whistle-blowing protection compared to the comprehensive whistle-blowing legislation in other countries, such as Great Britain, New Zealand, Australia, and the United States.

The network is aware of the internal policy and procedure adopted by the Government of Canada in late 2001 to protect federal public service employees, formerly titled the “Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace”. As well, there was the appointment of Dr. Edward Keyserlingk as the federal public service integrity officer. While we acknowledge this as a useful first step in providing whistle-blowing protection to federal public service employees, the network believes there is also critical need for specific legislation in this area.

We believe that Parliament's current consideration of Bill C-25 presents an excellent opportunity to incorporate effective, generalized whistle-blowing protection into the federal public service legislation. This should be the starting point for whistle-blowing legislation in Canada, similar to what has been done in other western democracies. This is also an opportunity for Parliament to be the leader in this area and to point the way for future legislative initiatives applicable to the private sector.

The need for whistle-blowing protection for federal public service employees is self-evident, and this need has been acknowledged through the introduction of private members' legislation at various times in recent years and the government policy approximately eighteen months ago. It is now time to bolster that policy with some legislative teeth.

In the network's view, one of the major deficiencies of Bill C-25 is its lack of any whistle-blowing protection. This is a critical oversight in a bill designed to provide a major overhaul of the laws and procedures governing the federal public service in Canada, and we urge Parliament to rectify this oversight.

Thank you, Mr. Chairman. We'd be pleased to take any questions from the committee.

¿ (0930)

The Vice-Chair (Mr. Tony Valeri): Thank you.

We'll go to the first seven-minute round of questioning, beginning with Mr. Forseth. We have approximately an hour and a half for questioning, so it will be an opportunity to really get into some in-depth scrutiny of the briefs before you.

Mr. Forseth.

Mr. Paul Forseth: Thank you.

I first want to make a comment to the Social Science Employees Association. I appreciate your brief. At this stage it's exactly the kind of thing we need to look at. I'm looking at your page 20, where you talk about suggested additional wording in paragraph 82(d): “the failure of the Commission or the deputy head to fairly assess qualifications as a result of an error, an omission or improper conduct”, and this is related to the tribunal complaint process.

Now, you're looking at the particular criteria where the tribunal could have grounds to assess, but then I wonder if you'd looked at the back end; if they found that something was wrong, what would be the remedies available to that tribunal? What action could it actually take? To me, that also seemed to be a deficit or a lack in the bill. Perhaps you could comment on that.

Mr. William Krause: I believe the tribunal would have the authority to suspend an appointment that was made in a process that was flawed; at least, that's my belief.

Mr. Paul Forseth: It's a belief, but I think if you look at the act, it isn't there. That's my concern.

Mr. Peter Engelmann (Legal Counsel, Engelmann-Gottheil; Social Science Employees Association): The comment is a valid one. I think the bill could be more specific on the remedies for the board. One of the major concerns we had was the lack of appeal grounds and the almost impossibility of proving an abuse of authority. But I agree with the question that there could be more specificity on the remedial relief.

Mr. Paul Forseth: This is somewhat in line with other comments I've had. People say, I assume, I hope, I would think, or this has been the practice. Well, if it isn't really there, it isn't going to happen, especially in the new regime now where in the bill we're spelling out in much greater specificity exactly what is going to happen.

I want to turn to the Professional Employees' Network. I appreciate your submission. Basically, you have focused on one issue, and that's also quite valid.

I've had a number of brief conversations with the minister on various days about this particular concept, and the minister is actually quite proud of the internal memo policy or whatever it is, though I'm not so sure public servants Canada-wide really even know about it; something like this requires ongoing education. The policy in general is there, but you're making the point that it has to have some basis in law. I made that comment in my remarks when the bill was introduced into the House and picked up on the same point you did.

So basically I agree with the idea that yes, there should be some foundation in law. The question is, in how detailed a way should it be spelled out in the act? Second, should remedies be provided, or should the bill just basically say there shall be a so-called whistle-blower--I don't particularly like that term--policy that will provide the means and the vehicle for behaviour in good faith when being exercised and as well provide some kind of employee protection? Just how deeply should that be in the bill versus perhaps having the present regime referenced in the statute to the effect that there shall be one? If it's only in an internal memo, it could disappear tomorrow.

Perhaps you could comment on that.

¿ (0935)

Mr. Andrew Muller: Thank you.

I'd ask Dave Hindle to comment on that if he could.

Mr. Steve Hindle (President, Professional Institute of the Public Service of Canada, Professional Employees' Network): Thank you for the question.

I think it's quite clear the Professional Employees' Network thinks it should be fairly detailed in legislation as to how whistle-blowers in the federal public service are protected and also by extension how whistle-blowers in the private sector and other regimes are also protected.

It is unfortunate we're at this late stage, and it's unlikely we'd get an amendment of that detail past your committee, certainly, or get the agreement of the minister. But echoing what the minister has said, I think that if there could be a reference in the legislation that the employer is required to have a policy to protect people who blow the whistle legitimately, that would at least start the process of providing the protection, having it in a legislative framework, and then providing some groundwork for actually producing legislation specific to protecting whistle-blowers.

Mr. Paul Forseth: Now maybe Mr. Krause or Mr. Engelmann might want to comment on the same point.

Mr. William Krause: I concur with Mr. Hindle's observations. There's certainly a need to protect whistle-blowers, and obviously policies in this area are certainly going to be appreciated by employees. I think the whole thrust of whistle-blowing has generally been shown to be an area that affects professional employees.

Mr. Paul Forseth: Do either of you have any specific comment about the existing internal policy itself? Is it a fairly good model for us to follow or is it pretty thin?

Mr. Steve Hindle: At this point we believe it's too early to give a valid critique of whether or not it's the appropriate mechanism.

We would make a suggestion that it's inappropriate for it to be housed as part of the Treasury Board itself and that as a minimum we would see it more appropriately part of the Office of the Auditor General. The Auditor General is an agent of Parliament, and the office has a certain amount of independence attached to it, not only legally but in the public's perception. We think that in itself would go a long way towards having public service employees use the services of the integrity office and would provide some assurance for government that the matters would be treated in a way that don't automatically make them public.

Prof. Jean Mercier: I'll try to be as specific as possible on this question.

Mr. Paul Forseth: Please do.

Prof. Jean Mercier: The individual stories or cases of whistle-blowing, regardless of the protection of the law, are not happy ones, if you look at the history of those who have done this and follow their careers.

Thank you.

Mr. Paul Forseth: We do see some rather famous cases in the Ottawa Citizen from time to time. There are some very dramatic cases, and sometimes people develop persecution complexes, or whatever, and think the whole world is against them.

I certainly think that MPs have seen it in their constituency offices, where they have individuals that have some grievance or whatever. Often it is a former public servant who comes in and has their whole life in a cardboard box, with all the files, letters, correspondence, and the whole scenario of the conspiracy. Their whole life is on hold and they become totally consumed with that, to the point of having a personality disorder or a psychological difficulty.

But I understand, of course, and agree with Mr. Hindle that the internal policy is new and we really haven't had experience with how it will work. I think that's going to be very important. Depending on what we hear, the culture change won't be so much what's in the legislation as the attitude of all the players and stakeholders if they're going to make this bill work or not.

I think I'll leave my comments there.

¿ (0940)

The Vice-Chair (Mr. Tony Valeri): Thank you, Mr. Forseth.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

It's a pleasure at last to hear two organizations make this kind of suggestion. Through my subjective questions, I hoped to see the other witnesses do so. I'm pleased to have a little support.

I'm going to start with the remedies. In the bill, I found them and still find them very limited. I congratulate you for raising this point. As I told you, it's nice to feel supported by the employees, particularly since the questions I was able to ask were designed precisely to protect them.

However, with regard to the way you make your recommendation, regarding the addition of paragraph (d), I ask myself somewhat the same question. I'm pleased with the idea of adding something, but, once again, it's limiting. In my view--and I would like to hear your comments on the subject--I would consider instead making the remedies much broader. That's what you do, but in a limiting and exhaustive way, once again.

I'm preparing to make a much broader amendment and I would first like to hear your comments. An amendment could be proposed more in terms such as “in particular” or general alignments could enable public service employees to use remedies that are not limiting.

I would like to hear your comments on the subject.

[English]

Mr. William Krause: This is a sensitive issue. On the one hand we know there has to be more efficiency in our staffing process. The current process, frankly, doesn't work. From the time an action is commenced to a possible appeal and a decision, up to a year can expire before an individual occupies the position. We have acknowledged that does not serve the need for expediency in staffing. Particularly looking ahead at the pace of people leaving the public service and what the pace of staffing will be in the future, there's a need for more expediency in this area.

We have tried to suggest very reasonable grounds where we have significant errors and omissions, and where there is improper conduct. We're being specific because we certainly would like see that there are reasonable grounds for proceeding with an appeal in this area. We don't want to have very general and broad grounds because we'd be inundated in the staffing process with appeal complaints. That would lengthen the process further and wouldn't resolve the problems we currently have.

So we are trying to strike a balance here, but we certainly think there are factual areas we've raised--serious inability to assess by error, omission, or improper conduct. That would take into account anything fraudulent, anything in the way of cheating, anything significantly omitted by the panel doing this process, such as losing pages of a resume, which has happened to our members. We think that's a balance to what the legislation is trying to achieve in the area of expediency.

We also think, by and large, employees will accept those as being reasonable grounds. The current view of our members is that abusive authority and language are not sufficient. Serious errors are made, and they certainly would have to be grounds for an appeal.

I frankly don't have in mind at this point--to answer your question in the short form--a suggestion for something very general and broad. I don't think that would go in the right direction if we did.

¿ (0945)

The Vice-Chair (Mr. Tony Valeri): Mr. Danik.

[Translation]

Mr. Claude Danik (Director of Professional Services, Social Science Employees Association): If I could add to Mr. Krause's answer, I would say that the principle you've stated is very sound. However, our past practices regarding staffing complaints and the elements added to the clause enable us precisely to defend the interests of employees who file complaints. From what the association has been able to observe, in the majority of cases, staffing problems are the result of errors.

We read the wording of clause 82; that's what concerned us the most. As Mr. Krause said, one of the members of our association submitted a curriculum vitae, but the manager lost the last two pages of it. We had to go to the Court of Appeal, if my memory serves me, to defend the interests of that member of our association. At that stage, the case had taken on ridiculous proportions.

By including this new subsection, we nevertheless thought we could recover all the practical elements that we usually use to defend a member's interests.

Mr. Robert Lanctôt: I'm well aware of that and I moreover congratulate you on it, but what troubles me a bit in your answer is that, in my view, that's tantamount to trying to limit rights because of extensive litigation. I know that the administration of justice entails obtaining justice as quickly as possible, but, in this case, we're doing indirectly what we should not be obliged to do, that is eliminating rights in order to expedite the process. As a lawyer, I see an enormous contradiction here.

I would say to you that someone's rights must not be taken away in order to achieve a result. Perhaps the method or procedure should be changed, but without removing rights. By limiting rights to appeal or challenge as much as possible, there will be fewer appeals and fewer opportunities for challenges, and things will flow more quickly. To do so, however, we will nevertheless be limiting rights.

You have much more experience than we do and you may be able to determine specifically what should be corrected in order to achieve a result quickly without eliminating employees' right to challenge. You have very broad experience and are more familiar than I with the case law in this field. You are also aware that certain challenges have been frivolous.

It may be possible to make arrangements, in view of what the frivolous cases are, so as not to put that on the list or rather to specify exceptions, or to be more general and say that there's an exception from the moment there can be no appeal in such or such a manner. At that point, there will be no more rights.

But another mechanism has to be found. I agree with Mr. Krause that having to wait a year or two to fill a position without being able to fill it is clearly ridiculous. However, the excessive litigation problem must be corrected instead of taking away people's rights.

I would like to hear your comments.

[English]

Mr. William Krause: We'd have to study this bill a great deal further to make a suggestion in that regard. As I said before, we're looking at a way of balancing the whole issue of expediency with members' rights. We certainly realize we can't leave it totally open so members' rights completely override any notion of expediency when appointments take more than a year to be effective.

We want to be reasonable in our comments and make suggestions where we believe there's a weakness we can correct. We will in no way undermine the merit process. We'll still have a strong merit process with the recommendation we've made, and we'll see appointments made reasonably, with good rights of appeal. The grounds we've suggested will achieve that without causing any undue delay to the process.

The Vice-Chair (Mr. Tony Valeri): Thank you, Monsieur Lanctôt.

Mr. Tirabassi.

Mr. Tony Tirabassi (Niagara Centre, Lib.): Thank you, Mr. Chair. I would first like to thank the witnesses for appearing before the committee.

There was considerable mention made by Mr. Muller of the whistle-blowing initiatives he'd like to see enacted in the legislation. Mr. Hindle appeared before the committee on a previous occasion on this, and the Auditor General has already appeared, speaking on the current policy. The comments were that it was still in its infancy, it was less than a year old, and perhaps should be given time.

If I hear you correctly, you're looking for mention of this policy in the bill to give it recognition. Is that correct?

¿ (0950)

Mr. Andrew Muller: Not precisely. We are looking for a policy like this, but also one that requires all employers at the federal level to apply this. This policy doesn't apply to all of the employees at that level.

Mr. Tony Tirabassi: You mentioned in your document that other jurisdictions have this enacted in legislation. I believe you mentioned Great Britain, New Zealand, Australia, and the United States.

Do you know if a policy was first tried in those jurisdictions before they went to legislation?

Mr. Andrew Muller: I'm not personally aware of that.

Mr. Tony Tirabassi: You're not aware of that?

In hearing about this, I just have a concern about whether it's in legislation or policy. The impact of whistle-blowing--or however you want to refer to it--or the aftertaste it leaves depends on how a ruling went. There will be somebody who feels they've been treated fairly and there will be those who, for whatever reason, just don't feel they were ever treated fairly. This becomes the challenge in trying to enact it in legislation. It really depends on how people are left feeling after they've gone through the process.

Do they deem it to be any fairer if it's legislated versus policy? Would you care to comment on this?

Mr. Andrew Muller: I'd have to argue with you that it's not as important how the individual feels, but that the information gets out to the public.

There are really two aspects to the policy. One is obviously to protect individuals and to ensure as much as possible that they are dealt with fairly in what they raise. But I think the most important aspect of this is that they actually come forward with their concern. If it turns out that their concern is unfounded, then that too should be okay, but if it turns out that we have a WorldCom- or an Enron-type situation, then it needs to get out.

The problem with the policy and with the existing rules is that they leave individuals with very little recourse and protection, and therefore they do no come forward. So we feel that providing this in legislation makes it clear that there will be protection.

As we mentioned earlier, we may not have specific wording for the legislation. It may be too late at this time to include it, but we at least need to make reference to requiring a policy; set parameters for that policy; then give people much more concrete protection and confidence to come forward with their issues.

Mr. Steve Hindle: I think people who see protection in the legislation will also see that the legislation will provide a remedy for fixing the problem they've identified. The vast majority of people who blow the whistle are actually looking to have a problem corrected; they're not looking for publicity for themselves. So having that in legislation for the person responsible for reviewing the concerns, and having the authority to order that something be changed, will provide them with some reassurance that there is a mechanism for fixing what they see as wrong.

Mr. Tony Tirabassi: My next question is for Mr. Krause. It deals with page 20 of your submission, where you suggest changes to proposed subsection 77(1). When it comes to corrective action when a complaint is upheld, I am just wondering whether you had an opportunity to look at proposed subsection 81(1) of the bill?

Again, I recognize that on a couple of occasions you mentioned that your submission had to be put together in a bit of haste, to meet the timeline to appear here before the committee.

Mr. Peter Engelmann: Mr. Forseth asked me a question on this.

Proposed section 81 is fairly broad, and I'm a little concerned about the restrictions in proposed section 82.

In general, it seems that what you've done in this bill to date is to elaborate powers more specifically. When we look at the powers of adjudication, we look at the powers of the board under the Public Service Labour Relations Act. So this is a slightly different approach with the staffing tribunal.

You may or may not want to be more specific, but the powers under proposed section 81 are broad, and I have some concern about the restrictions in proposed section 82.

¿ (0955)

Mr. William Krause: I'd like to comment further.

Looking at proposed section 82, I have known of staffing actions where fraud or cheating was involved. This is unacceptable, but it has happened. If I look at proposed section 82, the tribunal would not have the authority to order a new appointment process. This restriction concerns me, in light of the fact that you could have processes that are severely flawed, even fraudulent, yet there would be no authority to order that a new process be commenced. For what purpose is this so?

I find it to be very restrictive, and unacceptable.

The Vice-Chair (Mr. Tony Valeri): Mr. Tirabassi has a couple of minutes left. Would you like to take them, Mr. Bryden?

Mr. John Bryden: Yes.

I'm interested in your recommendations about proposed section 11, because I consider that one of the key elements of the bill. I'm going to require you to defend the suggestion that you want to re-insert what was taken out, and that is this business that originally existed in the Public Service Employment Act that the commission has the responsibility to ensure that appointments shall be made from within the public service. One of the reasons for taking that out is to give the commission better opportunity to hire from outside the public service in order to get the best possible people. To me, that's healthy competition.

I would like to know why you think that tying the hands of the Public Service Commission by putting that amendment back in--I'd like an explanation.

Mr. William Krause: That's what we currently have, and it seems, in our opinion, to work extremely well. We also note that it doesn't tie their hands. If they are of the opinion that it would not be in the best interest to do so, then they may go outside, as they currently do. I would note that numerous individuals are being hired into our professional categories, the members we represent, every day, and our organization is growing, as many people are being brought in from universities. We have no difficulty whatsoever with the current wording of the current act because it allows for appointments of people from the outside if, in the opinion of the commission, it would be best to do so.

The Vice-Chair (Mr. Tony Valeri): Mr. Danik would like to comment.

Mr. Danik.

Mr. Claude Danik: If may just add to Mr. Krause's observations, our membership has increased by 50% over five years, so there has been a tremendous amount of staffing from outside for our members.

I would also like to add that the way it's worded allows for staffing from outside, but it also allows for another principle that is very important. Here I'm going to bridge my comment to something that was said by Professor Mercier.

Public service employees are not like private sector employees. They have a commitment to Canadians that is quite different from the commitment that a private sector employee has to his or her employer. When they commit to serving Canadians there is a corollary to that commitment. They enter the public service and they have an expectation, and the former section 11 upheld that expectation, that they would have an ability to develop a career in the public service. This doesn't mean that they would stay there forever, but they would have an opportunity to develop a career.

Without that little paragraph in the Public Service Employment Act, what you will have is a situation where there will be no consideration firstly of whether or not the talents and the abilities that are necessary to fill a position can be found within the public service. What happens is you will have a situation where people will be coming in from outside and cutting off career opportunities of people who are within. We've seen that in the past.

Mr. John Bryden: But you absolutely make my point. What you're suggesting is that the public servants need a special advantage, that they can't compete freely with the talent that the Public Service Commission may find outside. I was on public accounts, so I'm not unfamiliar with this issue because it certainly came up at public accounts.

I'm sorry, just as public servants can be drawn into private enterprise, they can be hired out from under the public service at will. I would have thought that surely we should expect the Public Service Commission to look for the very best possible talent, whether it's within the public service or without, whatever the job or employment might require.

À (1000)

Mr. William Krause: Again, we're going to have to agree to disagree on this point. We think the current act works exceptionally well. With the current act we've seen our membership grow greatly over the last five years, increasing by 50%, with many people coming in from the private sector. It hasn't in any way infringed upon the ability of management to recruit from the outside. So if we don't have a problem, why fix it?

The Vice-Chair (Mr. Tony Valeri): Mr. Epp.

Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you very much for the opportunity of debating with you.

I wonder whether you have checked the section on deployments in the act. It's on page 132 of the big bill. It talks about the exclusive authority to make appointments, if the commission has, after reviewing the staffing program, approved deployments from it. If you haven't looked at it, fine. You might want to and get further back to it. Or are you comfortable with that section? It's part 3. It's proposed section 51 on page 132.

The Vice-Chair (Mr. Tony Valeri): Is there a page number there? Is it page 132 of the bill?

Mr. Ken Epp: I never could figure out the numbering system in these bills because they keep repeating themselves.

Mr. Paul Forseth: That's because we're amending four different statutes.

Mr. Ken Epp: It's proposed section 51 there.

Mr. William Krause: I'll be frank and honest. This has been a rather large piece of legislation, and we've tried to zero in on those areas that were a concern to us, that we've been able to identify in the time constraints we've had. Clearly, you've identified another area where we would obviously like to take a further look. Therefore, when we've done that, we may comment on it, but I'm afraid we're incapable of doing that right now.

Mr. Ken Epp: Okay, that's fine.

The Vice-Chair (Mr. Tony Valeri): Mr. Krause, could you look at that and provide a submission to the clerk in response to Mr. Epp's question?

Mr. William Krause: Yes.

Mr. Ken Epp: My next question has to do with the whistle-blowers. I'm referencing page 132, part 4, “Employment”, proposed section 54, where it says, “A person appointed or deployed from outside....” It goes on and on, but it says “shall take and subscribe an oath or solemn affirmation in the following form”. Then it gives the wording. It says “I”, Ken Epp:

swear (or solemnly affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the public service of Canada and that I will not, without due authority, disclose or make known any matter that comes to my knowledge by reason of such employment.

Now to me that is a very draconian oath, because it says basically I am going to do exactly what I'm told and I'm not going to disclose to any one any matter at all that I may be worried or concerned about. I would think you would raise a huge flag--both groups and the independent witness here today--on having an oath like that. It basically ties the hands of anyone in disclosing something that might be untoward that the public should know about.

Mr. Andrew Muller: I guess the question turns on the words “without due authority”. We're hoping with whistle-blowing legislation and protection it will give them the authority to speak out on matters when they believe something wrong has happened. It's not simply a matter of confidential information, which perhaps this oath is referring to, but something that's in the greater public interest. So we would like to see that legislation giving them due authority to speak out about matters that are going on in the workplace.

Mr. Ken Epp: So that didn't raise a flag with you. That's interesting. It sure raised one with me.

I've been on both ends of this, by the way. In a low-level civil service job at the provincial level, I have been both a representative of the employees and a low-level manager. So I've been on both ends of this.

One of the things I would be very concerned about, from both points of view, is a dispute between a person and his or her supervisor. How do you reconcile that? What's the dispute mechanism? I'm concerned in this legislation that there doesn't seem to be a really good mechanism for solving that.

Are you concerned about that?

À (1005)

Mr. Andrew Muller: We certainly are concerned about the mechanism for being able to reveal issues of legal wrongdoing or environmental issues and so on.

I will point out that our members, generally because of their level in the organization and the occupations they hold, are very proud of their loyalty to their employers and take the responsibility with regard to accounting or legal issues quite seriously. They don't want this to mean they should be able to go to the press on any matter and embarrass the government, embarrass their employer.

At the same time, there are matters of broader public concern that need to be raised. Certainly as union representatives it's our role to help in any disputes, as you say, to raise those concerns with the employer, raise them as high as is necessary to get them resolved.

We provide certain protection under the labour legislation to protect employees from dismissal for that sort of thing. But the need to go public with an issue that would otherwise normally be held in confidence is what we're addressing today.

Mr. Ken Epp: Of course, that does need to be balanced. Again, I saw this both in my role as a supervisor and also in my role as a representative of people in the workplace. With the collective agreement we had I saw both sides of cases where it was very clear the person really should have been reprimanded. He had done a bad thing. Yet as a union rep at that time, I of course said that even a guy who was guilty had a right in this country to a good trial, to be heard, and I defended that right. But it has to be balanced off.

I know that if you have whistle-blower legislation in place, then that can really skew that process because now the person can come up with something on the boss, the workplace, or something else, and then claim protection that ordinarily shouldn't be given to him. It's a real balancing act.

The last thing I want to talk about, because it's interesting, concerns what Mr. Bryden spoke about, this competition through bringing in outsiders. That of course is spoken by a politician. Now, all of us have our jobs on the line every three and a half years, and we have no assurance at all that our jobs will stay here. We work, hopefully, at persuading our electors that they should reappoint us, but they may choose not to. We're coming at it from a really, shall we say, uncertain point of view in terms of employment security.

I want to talk a little bit about that because this bill includes in it a section on employees of the government who are seeking nomination. That introduces into the mix this political vector, which can be very difficult. The person may be a supporter of and running as a candidate for the current ruling party. Does that skew the decision of the supervisor according to the section here on page 151, proposed sections 113, 114, and following, about engaging in political activity? Will a supervisor have the ability to say no, we need you; we cannot afford to let you go, you can't be replaced on such short notice, and we're going to disapprove your running as a candidate?

Yet if that person is running for, say, the current Liberals, it could put the supervisor's job in jeopardy. On the other hand--and I say this only as an example--the supervisor may think this is a very fine idea, but if that person were to run for the Canadian Alliance, maybe it would be just the opposite. Perhaps political pressure would be put on the supervisor to not allow this very fine employee to choose to run and give the Canadian people an alternative to the current government, with all its foibles. You get that mix in there.

In this particular part, proposed sections 113 and 114, it's the employer who has the final say, and I am concerned about that. I'm really concerned. The legislation should have in it a clause such as the one I ran under in my workplace, which says that if an individual decides to seek public office, he or she may ask for time off without pay, with such requests not being unreasonably denied. To me, that is better wording. That is of course the wording we arranged in our contract, and I happened to be the first one in our workplace who ever used it.

À (1010)

The Vice-Chair (Mr. Tony Valeri): Who would like to respond?

Mr. William Krause: I want to say we are in complete agreement with the suggestion that it not be reasonably denied. I know we're trying to strike a balance here between accepting the right of an employee to participate politically and at the same time maintaining the appearance of impartiality on the part of an employee of the Government of Canada, but we think the discretion the commission has in agreeing should be reasonable. Any request should not be unreasonably denied. We agree with your suggestion.

The Vice-Chair (Mr. Tony Valeri): Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman. Before asking my question, I just want to inform you that I will have to leave because I must speak in the House shortly. Someone will replace me in order to continue. I thank you for your understanding.

It's now my turn to talk about the protection of informers. Yesterday the Information Commissioner told us that public service employees increasingly no longer even dare to write about what they do. It's got to that point. We talk about a change of culture among employees, that they are less partisan, even non-partisan, impartial. We are told that an attempt is being made to have a policy or integrity officer ensure that everything is all right. Now, when we try to obtain information, we receive fairly complete documents roughly one out of 10 times. So imagine what will happen if we want to make this change of culture and there's no protection for informers. Where are we headed?

The public service exists to manage impartially the money of all Canadians and, of course, of Quebeckers, and we have gotten to a point where we know we have problems. Look at the scandals we uncovered during the last mandate: witnesses who refused to come and testify or who simply told us that they did not have the necessary authority to give us the information. When people who have nothing to do come here, they don't think it's funny that the member asks them questions. They feel personally attacked.

We made an amendment to the act to show that you, the managers, are going to have many more responsibilities; in other words, that you are going to have to undergo real legal action, and we are going to prevent public servants from having obligations set out in the act in order to ensure that our questions are answered. This is the height of ridicule.

I don't understand why the President of the Treasury Board comes and tells us to wait. Even witnesses said the same thing. They want us to wait seven years before revising this act, to wait and see whether their policy has worked. Why wait seven years when we've put more than 30 or 35 years into amending the act?

We're in the middle of this, we're in committee, we can at least add a section on the subject or talk about it in the preamble. I don't know who mentioned a moment ago that there should at least be protection for informers. That at least should be put into the preamble. A policy or regulations should be made; we must start something now; we're in the middle of it. We aren't going to wait another 30 years to protect people who are going to give the information that must be given.

You're not here to protect a minister or a government. You're here to manage money, taxpayers' money. So I would really like to protect the person who comes to provide information to the media, to members or perhaps even to his supervisor because he's even afraid to talk to his supervisor. Imagine! This protection is necessary, and I thank you for talking about it. Since the start of this hearing, I have recalled this point to each of the witnesses, and even the representatives are almost afraid to say they agree. But I'm pleased that you've stood up straight and that someone has told us that there's nothing better than a statutory measure to enforce an obligation. And when we're led to believe that an act cannot be complied with--I heard that earlier--I answer that, if there is no act, it's even easier not to comply with it. It may be hard, but the new culture is going to start from there.

I would like to hear you on the subject.

À (1015)

[English]

The Vice-Chair (Mr. Tony Valeri): Mr. Hindle.

Mr. Steve Hindle: Legislative protection is what people need, and there have been too many instances of relying on the courts to try to protect people after they've gone public because their concerns weren't addressed.

To address an earlier comment from Mr. Epp, I believe, I don't think members of Parliament should be too concerned about whistle-blowing protection opening up the floodgates of people going public. Traditional whistle-blowing protection requires that the individual who has allegations of wrongdoing have exhausted the internal mechanisms that are available.

I think it's an opportunity for Parliament to put protection for the government and for Parliament in the legislation as well to ensure that in the end, when something goes public, it's because there was something wrong that happened and that it's not tied to either a very emotional issue or something where somebody has gone off without knowing everything that's actually going on.

I'll also address an earlier comment. You're never going to stop people from going to the press with issues they think need to be addressed. There will be people--private sector, public sector, it doesn't matter--who will say that they need to make this public for whatever reason, and they will find people in the media who are willing to publicize it. In some cases they will have done the right thing; in other cases, they had an axe to grind and they've found somebody to help spin the wheel for them. I guess it's human nature that some of those people will still exist.

The whole idea around legislative whistle-blowing protection is to put in place a very clear mechanism for people who have knowledge of or believe they have knowledge of wrongdoing in the workplace to have the wrongdoing addressed.

The vast majority--I'd probably put it at over 95% of people who blow the whistle by actually going public--are not looking to do it for themselves. As Professor Mercier said, the history of people who blow the whistle is not a very pleasant one. They suffer enormous consequences with family, friends, work colleagues, and in some cases the public. They go through an enormous amount of stress and distress.

Whenever people come to us and say they have this issue, we try to point them to the mechanisms that are already available to address it before they take that last step and go public.

The Vice-Chair (Mr. Tony Valeri): Thank you, Mr. Lanctôt.

Mr. Bryden.

Mr. John Bryden: Again to Mr. Krause, I was struck by your proposal for a new subsection 35(1) of the Public Service Employment Act whereby employees of the Library of Parliament or anyone else who works on Parliament Hill would be entitled to compete for government appointments. Now, where you say, “or any other employer on Parliament Hill”, do you really mean that the staff of members of Parliament should be able to compete for public service appointments? In effect, that's precisely what's implied by the proposed change.

Mr. William Krause: We represent employees who work at the Library of Parliament, and obviously there are other employees of Parliament as well. We believe, therefore, that the employment act we have here should be extended to all those who work at Parliament, and it's difficult to say yes for the group we represent and not consider the others.

Mr. John Bryden: I'm correct, then. You do intend to have the staff of MPs entitled to compete, because that's exactly what it says and exactly what you did say.

Mr. William Krause: Yes, I think that's what we've suggested, and as I said, there are some areas in this bill where we have rushed our judgment a bit owing to the timeframes that were presented to us. That would be the implication of our recommendation, but we may have some second thoughts on that, to be quite honest.

Mr. John Bryden: Let's go back to your other recommendation, that you want to go back and make sure public service employees are protected from competition and appointments from people outside the public service. There's a basic contradiction there. In one sense you're closing the door, yet in another you're opening the door, not to people in private enterprise but to the staff of MPs, who are political appointments by and large. It seems to me that's a huge contradiction.

À (1020)

Mr. William Krause: We don't see it that particular way. We see these individuals as basically employees of the Government of Canada, and we obviously believe they should have the same rights under the employment act.

Mr. John Bryden: What about the historic and traditional separation of Parliament and government? What you're actually doing is you're saying that the partisan staff of MPs, not to mention the staff of the House of Commons and Senate, who have for maybe centuries been separated from government, should be treated as government employees for the purposes of competing for government appointments. I find that truly extraordinary.

Mr. Peter Engelmann: Clearly SSEA wishes to have its members at the Library of Parliament have these rights. I think the concern the association has had is that whether people work and have legislative protection on the Hill or whether they don't, in the form of staff of the MPs, it's difficult for us to suggest there should be a difference. I don't think SSEA's views on proposed section 11 are inconsistent. As my colleagues have said, there has been an awful lot of open competition that has been available and has taken place, and that's how SSEA has grown.

But SSEA has concerns about the rights of people on the Hill. SSEA has intervened in the Vaid decision because it's important to SSEA that the staff on the Hill have protection under the Canadian Human Rights Act, for example. These are issues of concern. I think it's difficult, or it has been difficult, for the association to suggest that one group shouldn't have the same rights as the other.

Mr. John Bryden: I have to say that you're on an absolute collision course with many MPs and much of Parliament, because it is absolutely fundamental in my view that the employees of Parliament Hill should be separate from employees of government. This is absolutely fundamental. Of course, this very issue has been before the courts and is under appeal on a particularly famous case involving a former Speaker, if I recall correctly.

Mr. Peter Engelmann: Yes, that's the case I was referring to.

Mr. John Bryden: You know how I stand on that, and it's not with you.

Mr. William Krause: So you're suggesting that employees should not have the protections of the Canadian Human Rights Act.

Mr. John Bryden: No, what I'm suggesting is....

Mr. William Krause: Because if you're suggesting that, then certainly we disagree--

Mr. Peter Engelmann: And so does the Federal Court of Appeal.

Mr. John Bryden: No, what the Federal Court of Appeal is.... I hate to suggest to the witnesses that the Parliament of Canada is the highest court of the land and it's Parliament's obligation to ensure that there is a separation of Parliament from the pressures that exist by particular interest groups in society. Now we obviously disagree on that, but I'm glad we had this conversation so that we know where you're coming from on both those issues.

Mr. William Krause: With all due respect, I was under the illusion that the Supreme Court of Canada was the highest court of the land. I stand corrected.

Mr. John Bryden: You stand corrected, sir.

The Parliament of Canada is the supreme court of the land. The Supreme Court....

No, Mr. Chairman, I have to correct the witness.

The Supreme Court is created by an act of Parliament. It is not like the Supreme Court in the United States that's under the Constitution. The Supreme Court of Canada Act gives the power to the Supreme Court. So just for the record, I assure you the Supreme Court is under the Parliament of Canada.

The Vice-Chair (Mr. Tony Valeri): Mr. Forseth.

Mr. Paul Forseth: Thank you for the political discussion on the structure of government.

Let's get back to the real business at hand. I want to go over the part on political activities, which was alluded to by Mr. Epp. It begins on page 149 of the bill and continues to page 153.

I want all of you to comment on a variety of things, so perhaps you should get your pencils out. I'll go through a number of issues, and then perhaps you can respond to them.

The first issue, which has already been mentioned, is that when requesting leave, permission should not be unreasonably withheld. My view is that nowhere in the bill does it say that, and perhaps it should. You may want to comment on that.

Number two, since there's a decision point, if someone really feels aggrieved by that particular decision, there's no place to go to appeal it and no kind of independent body, such as the PSC, to review it to see if indeed that permission was unreasonably withheld.

Number three, the bill talks about getting time off just to seek a nomination. I wonder if that particular provision is onerous. Seeking a provincial or federal nomination sometimes takes place a year in advance. Someone has to take leave without pay when they may not even get the nomination. That seems to be stretching it too far.

Number four, the bill doesn't talk about when absence or leave starts. How long is this going to be? It just says they will have leave. Are they gone forever, or is it leave for three years that has to be reviewed? There's no time to this. When does it start and when does it end?

Number five, the word “leave” implies that a person may come back. If you're taking leave, that means you're not quitting and totally severing your relationship. You're taking leave so that you may come back. But the bill doesn't say that a position is going to be held for you or that you have any kind of reasonable prospect of being reinstated at the general level you were at in the broad geographic region you come from. If you're from P.E.I., you're going to be forced to accept a position in Vancouver. Well, maybe that would be a benefit. You know what I'm talking about there. This factor would be a great disincentive and another barrier to someone becoming politically active.

Number six, can a person hold, for instance, a municipal councillor position while at the same time being a public employee? We know that in most municipal councils across this country they are all part-time positions, and all of those councillors hold regular jobs somewhere else. Councillor positions are not full time. Mayors often are, but councillors are not. Especially in the small communities, a councillor role is a very small, part-time job. Probably our brightest and best in those outlying areas are federal public servants, yet we are cutting off all of those people. There's no provision in the bill that someone could be a part-time reeve or councillor and still be a public servant.

Then I look at proposed subsection 114(4), which says “An employee ceases to be an employee on the day he or she is declared elected”. That seems to undercut the whole idea of leave. Does that mean, then, that your pension now has to be totally cashed out and that you're gone, that there really isn't leave? That seems to be inconsistent and quite harsh. So we need to look at that.

I've gone through a number of points to flag issues of concern to me. Maybe you can address them initially, and if you have some further thoughts, you may want to make further submissions directly to the clerk for dissemination.

À (1025)

The Vice-Chair (Mr. Tony Valeri): Who would like to start?

Mr. William Krause: We certainly would like to make a further submission on this issue. We think the point about authority not being unreasonably withheld is a substantial point, which was mentioned earlier. Clearly, there is a lack of adjudication here. There's no appeal process if a bad decision has been made. That should be corrected.

In terms of the leave periods, we do have provisions in our collective agreements for employees to take leave for personal needs. That's generally limited to a year. That may not be sufficient. So there would be an impact on how we bargain for our employees, although I would say that I don't know of many of our members who partake in the political process.

You mentioned councillors. You might also mention school board trustee positions. Those are the kinds of positions where the work generally occurs in evening meetings. I know members of the public service who are active in the capacity of trustees. That's quite normal.

You've raised a number of excellent concerns. We're going to have to get back to the committee with a further written submission, and we will endeavour to do so as quickly as possible.

Mr. Paul Forseth: Would anyone else like to dive into those points?

Mr. Steve Hindle: I don't think I'm going to be able to avoid it.

I think the whole thing to keep in front of ourselves while we're looking at the provisions around political activity of public service employees is the need to ensure that the federal public service continues to render impartial service to the government and effectively to Canadians. I think we need to keep in mind that this involves the perception of the public about the impartiality of individuals inside the public service, so it's reasonable to expect that Parliament will put rules around political activity for people who work for the government to ensure the impartiality.

To get to the specifics, I think it's reasonable considering what I said previously that a public service employee should inform that they are planning to run for office, and that they should be seeking leave to be relieved of their duties while they are running for office. I think it's important to note that it's not a decision of the supervisor and that in all cases it is the decision of the Public Service Commission. So it goes outside the normal workplace for a decision to be rendered as to whether or not the individual's ability to render their duties will be impaired by seeking office as a candidate.

Having to seek leave to run for a nomination, my initial reaction is, yes, I think that is too onerous, and that merely seeking a nomination in a riding doesn't necessarily mean you have to be away from your regular duties. Having said that, I think it needs to be considered in light of what those duties are. I think the Public Service Commission on its website has put in some examples, and one in particular I think is important. Somebody who deals regularly with the public in their own riding and has some exercise of regulatory control--such as a customs inspector--could easily have their impartiality jeopardized if they're clearly seeking office, and they have a potential to have an undue influence over members, potential constituents, people who live in their riding. I think the Public Service Commission needs the ability to consider the specific duties of the individual. Somebody dealing with the public in a regulatory fashion, having regulatory powers, is in a different position from somebody simply processing paperwork or helping to keep things running. There are quite a number of different jobs in the public service.

When does the leave end? In one case the leave ends when you get elected to Parliament. The legislation quite clearly says you cease to be an employee. I think there is a recognition that you can't be both an employee of the government and the employer as a member of Parliament.

What happens to your pension as a public service employee is determined by the superannuation act--whether you take an immediate annuity, whether you get a transfer of value, or whether you may be eligible to start actually receiving a pension. I'm not clear on whether or not you can actually be receiving a federal public service pension and a salary as a member of Parliament, but I would suggest that's where the answer to that question lies.

I think the legislation in regard to running for municipal office is an attempt to recognize that there are some very large municipalities in this country, if you look at Toronto, if you look at Ottawa, and Vancouver, where being a councillor is more than a part-time job, and that there is a great potential for conflict with your duties as a public service employee and your actual ability to put in a full week of work on behalf of the public service while at the same time fulfilling your responsibility as a municipal politician. I think the whole of the legislation is an attempt to balance the rights of the individual to seek office and the right, or the requirement, that the Public Service of Canada continue to render impartial service and non-partisan service.

So I think that gets to most of the questions you asked, Mr. Forseth. If there's anything more specific.... We have no intention of presenting a brief on that. We are able to counsel our members on what the law is right now and how it applies, and what I have seen in the legislation is an attempt to put in the legislation the regulations that the Public Service Commission enacted after the professional institute was successful in the case of Millar and Osborne at the Supreme Court.

À (1030)

Mr. Paul Forseth: Does Mr. Mercier have any comment on this section of the bill?

À (1035)

Prof. Jean Mercier: I think the distinction made between whether you are involved in politics at a different level from the level at which you are a civil servant is important. In some countries the rights are different in that case.

Mr. Paul Forseth: I'll come back in a second round.

Thank you.

The Vice-Chair (Mr. Tony Valeri): Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

One point often discussed at the end of testimony that's given, but which is also important, is a point concerning the recent polls which show that one public servant in five is a victim of harassment.

Before talking about that subject, I would just like to make a comment, not to continue along the same line as Mr. Bryden, but to say that an enormous distinction must be drawn on this aspect. One must be careful in talking about employees of members. We want the public service to be impartial, not partisan, and so those people must be excluded because they work in partisan politics with us. In my view, it's impossible for them to be on the same level as public service employees because these are two completely different branches. That's the comment I wanted to make.

As for harassment, I want to hear from each of you, including Mr. Mercier. This is an aspect which is quite troubling. We have been told, once again by the Treasury Board, by Minister Robillard, that the administrative route is the preferred way of solving these problems. So from the policy point of view, that has been around for a long time. We're even told that the anti-harassment policy is good. When we hear one person in five, I find that incredible when people say that our policy is working well. I would like to know what the members of your organizations think of it.

Once again, we should probably set out obligations in this act. Are we going to wait another 30 years before we protect the people who suffer harassment in the federal public service?

[English]

Mr. William Krause: I'll take a first pass at that. Twenty per cent is far too high. In many cases, there are specific communities--

[Translation]

M. Robert Lanctôt: The surveys came out last December, and it's one in five.

[English]

Mr. William Krause: Yes, I know. And in many cases, if you look at members, for example, of the visible minority community, our native people, or the disabled, the rates for harassment and discrimination are even higher than 20%. So clearly it is a concern to us, and I must admit there is a considerable amount of resource we devote to protecting those members who allege to have been harassed in the conduct of their work. We provide them assistance throughout the entire process, through the investigations, through the various stages of investigation, through mediation even, and finally to the hearing.

So we are fully involved in protecting our members' rights in this regard. We provide very full services. Nonetheless, we are very upset with the fact that we have so much work in this area. Clearly there needs to be a change in culture, a sensitivity to issues, so that less of this kind of behaviour occurs. I think Madam Robillard is aware of that.

The stronger the safeguards, the better. We are capable right now of working under the current policy, and in a number of cases bringing justice to our members who allege that they have been harassed or discriminated against in the workplace.

[Translation]

Mr. Robert Lanctôt: I'm going to answer you afterwards, but if we already include a section, perhaps in the preamble, to show that it's an important aspect, as we do for official languages when people request protection under the Official Languages Act, that gives us an indication. At least that aspect will be provided for in the act, when the time comes to revise it in seven years. And you may have to put more specific things into the act, but you have to start somewhere. We cannot remain silent and pretend that nothing was happening and that everything was going well. That's false.

[English]

Mr. Peter Engelmann: To try to comment as well on the question, of course we're talking about different types of harassment. The Treasury Board policy, the departmental policies, also include personal harassment, which is not harassment on a prohibited ground of discrimination. That particular policy deals with personal harassment. As you know, there's no third-party adjudication; there's an investigation and a decision made by a senior public servant.

With respect to harassment based on prohibited grounds, whether it be race, sex, disability, what have you, we think this bill is a step in the right direction, in the sense that in proposed section 208 it is now clear that rather than being forced to go to the Canadian Human Rights Commission federal public servants will have the opportunity clearly to present these types of grievances at the Public Service Labour Relations Board. That is a positive step, because SSEA very strongly believes that harassment in the workplace must be dealt with quickly. One of the ways to ensure that happens is not to force these individuals to go through the human rights process, which is too slow. Having the ability to go to the Public Service Labour Relations Board is a positive step. The powers that have been given to the board in proposed section 226 also include the ability to apply and interpret the Canadian Human Rights Act and to provide remedies as if they were a tribunal.

We surely agree with you about your concerns that there is too much harassment, that there is a lot of concern by members, but at least with respect to harassment based on prohibited grounds of discrimination, it is being addressed in this bill. We welcome that.

À (1040)

The Vice-Chair (Mr. Tony Valeri): Mr. Danik, would you like to comment as well?

[Translation]

M. Claude Danik: Yes. I would simply like to add to what Mr. Engelmann just said. The type of harassment currently causing the most difficulty in the public service is what's called harassment by abuse of power, abuse of authority. That's what...

Mr. Robert Lanctôt: Psychological abuse.

M. Claude Danik: That's correct.

Mr. Robert Lanctôt: That moreover is what is provided for in the act in Quebec. That's part of legislation in Quebec.

Mr. Claude Danik: But it doesn't exist. Unfortunately, when a grievance is filed which is a complaint against a case of abuse of power or abuse of authority, the grievance cannot be heard except at the final departmental level, internally. There's a problem, first, with regard to the perception and, second, with regard to the effectiveness of the process. So we would be very pleased to see, in the statutory measure, the power, the authority to refer abuse of authority grievances to arbitration. We have tried a number of times at the bargaining table--and other unions have tried it as well--to include such a clause, but we have never succeeded.

Mr. Robert Lanctôt: That's right. So if it were provided in the act, it would be easier to bargain on this point.

Mr. Claude Danik: It would be much easier, yes.

[English]

The Vice-Chair (Mr. Tony Valeri): Thank you, Monsieur Lanctôt.

Mr. Tirabassi.

Mr. Tony Tirabassi: Thank you, Mr. Chairman.

My question is to Professor Mercier. In your comments you mentioned public versus private, and you made certain comparisons, certain expectations. You said it shouldn't always be compared, but at the same time there could be some similarities.

You made two statements, that people in the public sector are more apt to speak out about their job, to give an opinion, good or bad, whereas people in the private sector will just leave. I'm wondering, is that because in the public sector employees feel that issues are more open, they have more of a form of process to express themselves without disciplinary action, without being reprimanded, whereas in the private sector it's perhaps more closed and as a result they don't feel they have the same avenues available to them?

Could you please comment on that and expand on that?

Prof. Jean Mercier: Yes, I agree exactly with what you just said. It's exactly what I said a little earlier. I don't want to say that one-fifth is small, but it needs to be interpreted in the sense that in a way it can be seen as something good because people feel free to express their frustrations or their dissatisfaction, whereas in the private sector, someone feels more constrained in expressing his or her own dissatisfaction.

In other words, the power relations in the private sector are harsher. They are more difficult. They are tougher for the employees. Again, comparing the figures between the private and the public sector can be deceiving because some of the people you want to interview in the private sector who have been harassed or who feel unsatisfied have simply left. There's no way to interview them. If they're not on the list, you're not going to get them.

There's a greater sense of security in the public sector, and that's why people will feel freer to express themselves, including expressing their dissatisfaction. That's exactly what I said a little earlier, yes.

À (1045)

Mr. Tony Tirabassi: Mr. Chair, I see Mr. Danik would like to respond.

The Vice-Chair (Mr. Tony Valeri): Mr. Danik, do you wish to comment?

Mr. Claude Danik: Mr. Chair, as you know, there was a public service employee survey in 2002 and there was one in 1999. There was a high rate of response as employees wanted to speak out and describe how they worked and what kinds of workplaces they worked in.

In 2002, mostly because of the participation of unions in the development of the survey--and we applaud the employer for having invited us to participate--it was a very positive experience. If I may say so, it was probably an experience that gets as close to co-development as one could go without having a redress procedure.

Mr. Tony Tirabassi: Thank you.

The Vice-Chair (Mr. Tony Valeri): We have approximately fifteen minutes left with these fine witnesses. I must tell you that I have found the meeting to be quite useful, and I want to commend the witnesses in advance of adjourning this session.

Mr. Forseth.

Mr. Paul Forseth: Thank you.

I'd like the witnesses to address a fundamental issue that's come up in the press about the bill, and that's to do with the definition of “merit” and how that's going to operate. That whole section begins on page 124 in the bill, and specifically what's become controversial are some of the following words:

30.1(1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

(2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency;

And then it talks about the employer having the ability to spell out additional conditions.

There is this traditional definition of merit in a competition in order for us to say that we're going to assess people and award positions based on merit rather than on favouritism, political affiliation, whether the person has been paid off, or whatever. This is to avoid all the bad abuses we had from the historical precedents we got from England with the Home Office and so on. This is about the development of the concept of the merit principle and professionalism versus all the other abuses, a development that has been going on for about a hundred years and has been defined by the courts in Canada.

Now we get a bill that's going to try to actually write it down. Instead of talking about it within a defined context, within a competition, when it comes to the merits the candidates are going to be selected on, that is, who seems to have the most merit, it says here that merit is going to mean “meets the essential qualifications”. That means the bottom floor.

So of the six people applying, they could just pick any of them and meet the principle of merit as defined in the bill, even though they decide not to pick one of the top two candidates, who appear, through the defined process, through the scoring or whatever, to have the most merit.

The person complaining will say, well, the general spirit of merit in the bill was not followed because I certainly had much more qualification than the other person on every point. Yet the defence is, well, we met the spirit of the law because all the people were pre-screened and they met what the bill says are essential qualifications. It's a way of undermining a hundred years of tradition by relying on the statute.

I would like you folks to address this particular issue and see if we can find our way out of it.

The Vice-Chair (Mr. Tony Valeri): Mr. Krause.

Mr. William Krause: I must say that I'm in agreement with you. Our membership clearly prefers the system of relative merit, where individuals compete and the best-qualified individual is appointed. It's our tradition, it's what our members are accustomed to, and it's what they believe provides for a proper appointment.

However, there are no doubt circumstances, for example, where it may be best to look at individual merit to appoint qualified people. We have that happening every day at what I would call the training levels for the economists we represent. We think those appointments are totally appropriate as well within the context of a training program where there is a very well-specified regimen of work excellence and standards that are to be met. Where that is judiciously applied, then the proper decisions are being made.

But outside that process of development at the initial stages we believe there should be competitive processes and that the process should be one of relative merit and not individual merit.

However, we are under no illusions about this piece of legislation, if I may say so. We've always believed, throughout our discussions with the committee that advanced this project and from what we've seen unfold, that the whole intent of this legislation was to give management in the public service the staffing regimen it wanted in exchange for a modicum or minimum number of changes in labour relations that were acceptable to the deputy minister community. This bill by and large serves their interest, and the few areas of improvement we've seen and commented on favourably were things that we fought for and that again the deputy ministers felt by and large they could live with, and that's what we've received.

Are we happy with the staffing regime? No, but we have no illusions. Anything we'd say today we know will fall on deaf ears in this regard. There is going to be no fundamental change there. We are going to have a system of individual merit because that's by and large what the senior management of the public service wants, and I think we're powerless to change that. It's what this government wants.

À (1050)

Mr. Paul Forseth: Okay. Would anyone else like to jump in, to give your opinion? Maybe we can come up with some wording somehow that would just inch this a little bit better.

The Vice-Chair (Mr. Tony Valeri): Mr. Hindle.

Mr. Steve Hindle: Absolutely, staffing in the public service should continue to be on the basis of merit, and quite clearly the proposers of this legislation agree. Where we have a disagreement is on the definition of “merit”. We believe it should continue to be the best-qualified person who is offered the job first.

It's quite clear from statements from government officials and people who are involved in this process that one of their intentions is to eliminate about 40 years of jurisprudence around the whole issue of what defines “merit” and “best qualified”. We think that's unfortunate.

When we made our submission on behalf of the Professional Institute of the Public Service last week, we made some specific suggestions, including allowing the Public Service Commission to have a more fulsome audit mechanism available to it, as well as some specific wording around some of the ability to appoint people on the basis of individual merit.

We agree that there are some cases where that's appropriate, but we think it should be limited. A competition, for example, for engineers at level 3 should be much more wide open than assessing one individual. We also made the point that these additional criteria that may be considered need to be publicized to the applicants prior to the selection process actually beginning.

Mr. Paul Forseth: When I posed to others this particular complaint that I made to you, I was referred to page 112 of the bill, where it talks about “The Public Service Employment Act is enacted as follows”. It's the preamble. Supporting what I'm talking about, of trying to select the best, the defence was given that “Canada will also continue to gain from a public service that strives for excellence”. That's the only nuance I could find that brings us from, well, you meet a base floor of what merit means, that we are trying to go broadly for excellence....

I couldn't find anything more specific that gives the essence that “merit” means, for the actual awarding in a competition, the most merit, that it's not just a base floor but getting the best, that in a competition between three or four people, you have some documentation, of course, but indeed, all things being considered, one individual is going to receive the most merit and the appointment is based on that rational principle, rather than something else, all the things we're trying to protect against because we're defining ourselves in merit.

So that seemed to me, in the bill, pretty thin and stretching it pretty far to say merit is going to be protected by this little phrase, “Canada will also continue to gain from a public service that strives for excellence”.

I'm looking for some help, from a variety of the witnesses, to sharpen this particular point on merit. You've outlined in your testimony that you're really concerned about the regime that's in the bill, but how do we get out of there? How do we get to a better spot and provide that balance in legislation?

Perhaps you folks could make some further submissions by paper to the committee, but I think this is a legislative problem. Certainly the drafters of the bill struggled with it, but, Mr. Krause, your views as to the reality background of the so-called striking the balance are interesting.

Maybe I can have some further comments based on what I've had to say.

À (1055)

Mr. William Krause: We'll endeavour once again to provide the committee with a written opinion. It's one of the areas on which we didn't comment.

As I said before, we were under no illusion when we approached this committee. We believe this bill has been proposed for one very substantial reason, and that is to completely throw the 40 years of jurisprudence out the window and look at the issue of merit in a totally different light, one that we don't agree with, but we don't think we have any chance of changing that.

We would be very pleased to prepare a submission to the committee.

Mr. Steve Hindle: I think you will find specific references in the submission that the Professional Institute of the Public Service made last week. I would comment that we agree with you that it's pretty thin, the idea that this is going to lead to the best-qualified person getting the job. There are an awful lot of good intentions being espoused; however, only time will tell.

If the legislation passes in the form in which it has been proposed, I think what will happen is that public service employees will be going to public service staffing tribunals, and ultimately to the courts, to try to reinforce what people are saying is going to happen anyway, that it's the best-qualified people we're looking for and they're the ones who are going to get the job. It would be our responsibility, on behalf of our members, to argue that it's not what's happening in those cases where our members feel that they've been overlooked and they are the best qualified.

Mr. Paul Forseth: From the political perspective, there is certainly also the public expectation that for all of the government activities that go on in their name—which they pay all the bills for—there will be a reasonable regime that's going to allow people to be hired on some fair basis of merit, or what is commonly known as merit in the community, and that it not be violated by sleight of hand in legislation.

Thank you.

The Vice-Chair (Mr. Tony Valeri): On that note, I would again like to thank the witnesses for your submissions and very helpful testimony this morning. We do expect, and I think you've agreed, that you will provide some further written testimony to the clerk on specific questions put before you. We would certainly welcome these.

Just before we adjourn, I'd like to inform my colleagues that we will be reconvening within one minute.

The meeting is adjourned.