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37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Thursday, May 8, 2003

0915

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.))

0920

Ms. Pauline Picard (Drummond, BQ)

The Chair

Mr. Tony Tirabassi (Niagara Centre, Lib.)

The Chair

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

0925

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Michel LeFrancois (General Counsel, Human Resources Modernization task Force)

The Chair

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

The Chair

Mr. Ranald Quail (Deputy Minister and Head, Human Ressources Modernization Task Force)

The Chair

Mr. Ranald Quail

The Chair

Mr. Michel LeFrançois

0930

Mr. Paul Forseth

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Dick Proctor (Palliser, NDP)

The Chair

Mr. Paul Forseth

0935

The Chair

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Paul Forseth

The Chair

Mr. Michel LeFrançois

The Chair

Mr. Paul Szabo (Mississauga South, Lib.)

0940

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

The Chair

Mr. Michel LeFrançois

Ms. Pauline Picard

The Chair

0945

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Paul Forseth

0950

The Chair

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

0955

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

Mr. Tony Tirabassi

The Chair

Ms. Monique Boudrias (Assistant Deputy Minister and Senoir Advisor, Task Force on Modernization of Human Resources Management in the Public Service)

The Chair

Mr. Paul Forseth

The Chair

Ms. Pauline Picard

1000

The Chair

Mr. Tony Tirabassi

Mr. Michel LeFrançois

The Chair

Ms. Pauline Picard

Mr. Michel LeFrançois

1005

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

1010

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Dick Proctor

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

1015

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

1020

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Paul Forseth

The Chair

Mr. Michel LeFrançois

1025

The Chair

Mr. Tony Tirabassi

The Chair

1030

Ms. Pauline Picard

The Chair

Ms. Pauline Picard

The Chair

Mr. Paul Forseth

The Chair

Mr. Dick Proctor

The Chair

Ms. Joann Garbig (Procedural Clerk)

1035

The Chair

Ms. Joann Garbig

The Chair

Ms. Joann Garbig

The Chair

Mr. Paul Forseth

Ms. Joann Garbig

Mr. Paul Forseth

Ms. Joann Garbig

Mr. Paul Forseth

The Chair

Ms. Pauline Picard

1040

The Chair

Ms. Pauline Picard

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Tony Tirabassi

The Chair

1045

Ms. Pauline Picard

The Chair

Mr. Paul Forseth

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Paul Szabo

1050

The Chair

Mr. Ranald Quail

Mr. Paul Szabo

Mr. Ranald Quail

Mr. Paul Szabo

Mr. Ranald Quail

Mr. Paul Szabo

The Chair

1055

Mr. Tony Tirabassi

The Chair

Ms. Pauline Picard

The Chair

Mr. Paul Forseth

The Chair

Mr. Paul Forseth

The Chair

Mr. Paul Forseth

The Chair

Mr. Paul Szabo

1100

The Chair

Mr. Paul Szabo

The Chair

Ms. Pauline Picard

The Chair

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.)

The Chair

Mr. Michel LeFrançois

The Chair

Mr. Michel LeFrançois

Ms. Pauline Picard

1105

The Chair

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 038

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 8, 2003

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.)): We are going to come to order here.

As your wagon master on this process, let me get you focused on where we are and where we intend to get to today. There's been some discussion with various interested parties. I have two new amendments from the government, which we will likely deal with this morning. I trust the information has been or will be circulated to members.

I note, for the information of members of the committee, that we will be meeting at 11 o'clock on Monday in our regularly scheduled slot to deal with a horizontal estimates issue involving four departments, electronic tendering and the like. On Tuesday afternoon in our regularly scheduled slot we will be meeting on the Treasury Board Secretariat estimates, following a relatively new procedure the Subcommittee on Estimates has recommended, the calling in of outside experts to comment on the operations of the Treasury Board before we move into the Treasury Board estimates. We will also be proceeding with clause-by-clause next Tuesday morning at 9 o'clock, picking up at where we get to today.

We got yesterday to Bloc amendment 54. BQ-53 was negatived on division. We will commence with BQ-54. I think there is a consensus that we will work our way down to the end of clause 11 today; this may allow us to move more expeditiously on these clauses. I appreciate the cooperation from the members from the Bloc. At that time I propose to adjourn the meeting, and we will return next Tuesday to commence the work on clause 12.

I call upon Madame Picard to introduce BQ-54.

¿ (0920)

[Translation]

Ms. Pauline Picard (Drummond, BQ): Thank you, Mr. Chairman.

I move that Bill C-25, in Clause 2, be amended by adding after line 37 on page 70:

(c.1) the employer or a bargaining agent has failed to comply with the duty to consult in good faith;

We're delighted that the bill officially recognizes the existence of the consultation committees already in place, but we're disappointed that the government has not taken this opportunity to make them really effective. Although it is now mandatory to create such committees, which will undoubtedly be subject to the provisions of the act, nothing requires the parties to consult in good faith.

Furthermore, the bill does not provide for the implementation of a dispute settlement mechanism, should the consultation committees come to an impasse.

Ultimately, the act requires the parties to establish committees which may then be legitimately ignored.

For the consultation committees to be truly effective, we recommend that they have authority to decide on consultation themes, including co-development of workplace improvements. We also recommend that a mechanism be implemented for the settlement of disputes between the parties.

[English]

The Chair: Mr. Tirabassi.

Mr. Tony Tirabassi (Niagara Centre, Lib.): Thank you, Mr. Chairman.

This particular amendment, BQ-54, is linked to BQ-7, which was dealt by this committee and rejected earlier on. It deals, of course, with the duty to consult in good faith. This would result in consultation becoming just another form of collective bargaining and could indirectly result in collective bargaining of staffing, pensions, and so on. The government will not be supporting this amendment.

The Chair: I'll call the question on BQ-54.

(Amendment negatived on division)

The Chair: That moves us to BQ-54.1. Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing lines 8 to 44 on page 78, lines 1 to 47 on page 79, lines 1 to 48 on page 80 and lines 1 to 14 on page 81.

Mr. Chairman, I would like you to spare me from reading all those provisions.

The chair: That's not necessary.

Ms. Pauline Picard: This clause provides a list of prohibitions imposed on employees with respect to strikes. Those prohibitions, stated in the form of 18 paragraphs covering more than three pages, are far too numerous and are designed to discourage employee participation in strikes. The Canada Labour Code manages to achieve the desired purpose by means of a very simple provision drafted in the following terms:

No employee shall participate in a strike unless

(a) the employee is a member of a bargaining unit in respect of which a notice to bargain collectively has been given under this Part; and

(b) the requirements of subsection (1) have been met in respect of the bargaining unit of which the employee is a member.

The subsection (1) referred to in paragraph 89(2)(b) states the conditions that must be met for a union to declare a legal strike. We recommend that this wording replace the 18 paragraphs on the three pages of text which constitute the proposed section 196.

¿ (0925)

[English]

The Chair: Thank you.

Mr. Tirabassi.

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

Due to the fact that this is more a drafting issue, and in order to give Ms. Picard the explanation she needs before we give our recommendation, I will turn to the officials for an explanation.

[Translation]

The Chair: Mr. LeFrançois.

Mr. Michel LeFrancois (General Counsel, Human Resources Modernization task Force): Affiliation: Mr. Michel LeFrançois (General Counsel, Human Resources Modernization Task Force) Good morning, Mr. Chairman.

The amendment proposes to delete provisions that are quite long because section 195 of the Public Service Labour Relations Act concerns the prohibitions that apply to union organizations, whereas section 196 concerns prohibitions that apply to public servants.

The amendment proposes to import concepts which are quite foreign to the bill in its entirety. For example, in the text imported from the Canada Labour Code, reference is made to a conciliation board rather than a public interest commission. That's not at all consistent with the act.

This amendment would have the effect of allowing a strike to take place where a union had opted for mandatory arbitration in case of impasse. That can't be consistent with the act.

These are only examples to show that this wording imported directly from the Canada Labour Code cannot be inserted into the act like that without creating utter confusion and changing fundamental rights.

For your information, Ms. Picard, I will say that the provisions in the bill are based to a large degree on the Canada Labour Code. It's very long, yes, but that's because it addresses each of the prohibitions in a detailed manner so that the parties know what is prohibited. It's drafted in the same spirit as the Code.

[English]

The Chair: Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): I notice that subsection 196 (1) as proposed by the Bloc talks about the union, but also talks about the employer, whereas in the bill it says, “No employee shall participate in a strike if the employee...”, which is the same as in the old legislation. Of course, in the private sector you have the balance between the limits of lockout and strike. So someone could look at this bill and say it's all one-sided; there are rules on employees or unions involved in the strike, but there's no commensurate or parallel limitation on the employer for lockout. Given that possible criticism, I'm wondering if there has ever been ever an occasion when the federal public service has been locked out and why it's like that and not parallel in construction at this point.

The Chair: Mr. Quail, as the representative of the federal public service, have you ever locked anybody out?

Mr. Ranald Quail (Deputy Minister and Head, Human Ressources Modernization Task Force): During my experience, no.

The Chair: I don't think so.

Mr. Ranald Quail: I've been involved in strikes. There was the coast guard strike, and the following year we had the larger strike in the public service. I don't recall any time that we locked anybody out. I'm not saying it didn't happen, but I don't recall any instance.

The Chair: Mr. LeFrançois.

Mr. Michel LeFrançois: With regard to that specific point of Mr. Forseth's, there is no lockout mechanism in the present legislation or in the bill. It's not a feature of the labour relations landscape in the federal public service. An employer cannot lock out its employees.

In response, sir, to the point you made about these provisions being applicable to employees, the converse you'll find in proposed section 186, the unfair labour practices of employers, what employers may and may not do. So there's a balance there, if that's what you're looking for. With regard to offences and punishment, beginning at proposed section 200, you'll see that they apply both to employee organizations and employees on one side and the employer and employer representatives on the other. So there's balance on both issues.

¿ (0930)

Mr. Paul Forseth: Thank you for that answer.

The Chair: Thank you, Mr. Forseth.

(Amendment negatived on division [See Minutes of Proceedings])

The Chair: Now we will move to BQ-55. Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by deleting lines 11 to 17 on page 83.

This clause provides that no person shall impede or prevent or attempt to impede or prevent an employee from entering or leaving the employee's place of work if the employee occupies a position that is necessary. We very much fear that this provision goes further than necessary in ensuring that designated employees can work. Since it can be quite broadly applied, it could plausibly cover a very broad range of means of action, including picket lines.

In many cases, it would be impossible for pickets to know that persons are concerned by agreements on essential services. Consequently, an employee could violate this provision without even knowing it. What is worse, under section 200 that follows, the employee could be guilty of an offence on summary conviction for violating section 199. We recommend that this provision be deleted from the bill.

[English]

The Chair: Mr. Tirabassi.

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

This is relating to the essential services agreement, which is outlined in proposed section 199. This amendment would delete that section, the prohibition on impeding access and egress of essential employees. We feel this provision is necessary to ensure public safety and security. I know there is that feeling out there, but contrary to what some unions may feel, this is not a provision to enable strike-breaking, nor does it make criminals out of employees who engage in their lawful right to picket peacefully. As a result, we will not be supporting this amendment.

The Chair: Thank you.

Madame Picard, did I misunderstand something at the conclusion of your remarks, was there a suggestion that you might withdraw this?

[Translation]

Ms. Pauline Picard: No.

[English]

The Chair: Thank you. I'm sorry.

Mr. Proctor.

Mr. Dick Proctor (Palliser, NDP): Notwithstanding the comments that have been made opposite, I think the withdrawal of proposed section 199 is very important. I can imagine it would be very easy to get a court injunction at a place where you have a legal strike going on and essential services being delivered, the judge disallowing picketers from doing their task. So I would strongly support BQ-55.

The Chair: Thank you, Mr. Proctor.

Mr. Forseth.

Mr. Paul Forseth: It appears that proposed section 199 is necessary based on past behaviour. There is a misconception out there that somehow a picket line can actually stop people, like management people who are not part of the union or essential services, from crossing that picket line. It's part of preserving civil society. This is probably the greatest flashpoint where there have been assaults and harm. If each side has clear rules, good fences make good neighbours in a time of tension. It's part of the clarification of what a picket line is. In law, it's not to be an obstruction. So it may be helpful to union activity.

¿ (0935)

The Chair: Thank you, Mr. Forseth.

(Amendment negatived on division)

The Chair: Madame Picard, perhaps you'll have better luck with BQ-56.

[Translation]

Ms. Pauline Picard: Mr. Chairman, I would like us to vote on both BQ-56 and BQ-57 because they concern the same thing. Do you agree?

[English]

The Chair: Just so you're clear, make your arguments for both. We'll vote on BQ-56 and apply it to BQ-57.

[Translation]

Ms. Pauline Picard: For BQ-56, I move that Bill C-25, in Clause 2, be amended by deleting lines 27 to 32 on page 83.

The explanation is the same as for amendment BQ-55. So I won't repeat the comments to you.

For BQ-57, I move that Bill C-25, in Clause 2, be amended by deleting lines 7 to 11 on page 54.

Once again, the comments are the same as for BQ-55.

[English]

The Chair: Mr. Tirabassi.

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

The government will not agree to BQ-56 or BQ-57. These offence provisions exist today under the PSSRA and are consistent with the Canada Labour Code. They should be retained as standard labour relations provisions. My arguments would be the same for BQ-56 and BQ-57.

The Chair: Mr. Forseth.

Mr. Paul Forseth: Subsection 202 (1) says “section 187 or 188 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000”. Could you tell us what the intent of the legislation is? Is that a summary offence?

The Chair: Mr. LeFrançois.

Mr. Michel LeFrançois: This simply replicates the present regime. It is an offence only on summary conviction, not an indictable offence.

I should point out while we're discussing these amendments that the amendment proposed deals with the offences against employee organizations and employees and seeks to remove these provisions. It doesn't seek to remove the same provisions that make offences the unfair labour practices of managers or the employer. To remove only one side of the ledger is questionable if we want to keep a certain balance in the act.

The Chair: Thank you. On BQ-56.

(Amendment negatived on division)

The Chair: Do I have your consent to apply that vote to BQ-57?

Mr. Paul Szabo (Mississauga South, Lib.): Maybe the clerk can help. If it's agreed to apply, you take the vote on the first one and it automatically applies. If you're going to ask for consent to apply it after you've voted it, you may as well just call both individually.

¿ (0940)

The Chair: That's fair enough, although it does save the reading and presentation.

Mr. Paul Szabo: She did read it.

The Chair: It makes no difference to me, other than being precise, making sure there's no confusion about what we're doing.

Mr. Paul Szabo: How do you determine whether there is consent in the room?

The Chair: You ask.

Mr. Paul Szabo: By voice?

The Chair: That's what I did.

Mr. Paul Szabo: The same question was posed before she started. Why would you ask for the same consent twice?

The Chair: I didn't ask for consent at the beginning, I said I would be asking, because this is the practice we adopted previously when we did this. I did it deliberately that way so that as we were looking at moving larger and larger blocks, people wouldn't feel they were losing something in the passage of it. I think we'll do just fine, because we're coming to one that may make it clearer why I'm being so precise.

Madame Picard,as you were not here when we did this, I just want to draw your attention to the fact that for BQ-58 to 63 there was a lengthy discussion with Monsieur Lanctôt. You had a number of amendments earlier, as well as here, attempting, I believe, to change the language and insert “trade union”. There was a lot of discussion about the appropriate word, given the French and English versions, and there was agreement not to proceed with those amendments.

So we can do one of two things, with your consent and the consent of the committee. We could simply not move them and move on, or we could dispose of them and apply the vote to all the other ones as we did previously, whichever you prefer.

[Translation]

Ms. Pauline Picard: Would you give me a minute?

The Chair: Yes.

Ms. Pauline Picard: Mr. Chairman, can we use a sub-amendment so that, each time “trade union” is used, it can be replaced by the term “labour organization”?

[English]

The Chair: Monsieur LeFrançois.

[Translation]

Mr. Michel LeFrançois: Mr. Chairman, I would suggest that, in the particular context of the amendments proposed here, the fixed expression should instead be “bargaining agent”. In this context, a labour organization does not necessarily have the same rights as a bargaining agent.

I therefore propose that we replace “trade union” with “bargaining agent”.

Ms. Pauline Picard: I accept, Mr. Chairman.

[English]

The Chair: So to be clear on this, wherever in these next amendments “trade union” appears, there will be a subamendment considered to change it to “bargaining agent”, in French “agent négociateur” for “syndicat”. So we're all clear on that? I have to get approval here, because I got slapped around yesterday for being too casual about this.

So what we are proposing to do is to make that subamendment to all those amendments, BQ-58 to 63. Madame Picard has just moved that.

(Subamendment agreed to)

The Chair: Now we will proceed with BQ-58 as amended.

¿ (0945)

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing lines 22 to 24 on page 85 with the following:

(208.(1)) subject to subsections (2) to (7), a trade union is entitled to present an individual grievance if an employee feels aggrieved

We agree that every time I pronounce the words “trade union”, it will be interpreted as meaning “bargaining agent”.

As may be seen from reading this provision, an employee's right to submit an interpretation grievance to arbitration depends on the agreement of the bargaining agent. In those circumstances, we think that only the trade union or the labour organization should be empowered to submit individual grievances on the interpretation of the collective agreement to the employer.

The bill also prohibits the notion of collective grievance. However, the filing of such a grievance by a bargaining agent is subject to the consent of each of the parties concerned. Note that those parties may also change their minds and withdraw at any time before the arbitration award is made by simply giving notice.

We feel that, in all cases, whether the grievance is an individual or group grievance, the bargaining agent alone must control the decision to file a grievance respecting the interpretation of the collective agreement and to submit it to arbitration. That procedure is consistent with recognized practice in the labour relations system in Canada.

[English]

The Chair: Thank you.

Mr. Tirabassi.

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

So that I'm clear, are we still dealing with all five amendments?

The Chair: The intention is to deal with each amendment separately.

Mr. Tony Tirabassi: Thank you.

We will not be recommending support of this amendment. Employees are empowered today under the PSSRA to present their own individual grievances. The employer wants to retain this responsibility with individual employees. However, it should be noted that there is a partial exemption when a collective agreement issue is involved. In such cases the employee must obtain the approval of and be represented by the bargaining agent; that's in proposed subsection 208(4). This is a continuation of the status quo under the PSSRA and recognizes that the bargaining agent has a key interest in defending the interpretation or the application of the collective agreement. However, in all other cases the employee is free to decide whether to present their own individual grievance, for example, if they were disciplined or terminated.

The Chair: Thank you.

Mr. Forseth.

Mr. Paul Forseth: As many MPs try to help constituents who are enmeshed with the bureaucracy, we do get the plea sometimes from public servants who feel they've exhausted all their means of redress for their grievance in their workplace and seek the assistance of the MP. I've had a few, and they felt the union had abandoned them. The amendments would almost say, unless the union decides to help the individual, they are blocked. It would be great if the union really did a good job on behalf of the employee in a professional manner, but I've got personal experience of where certain employees have been abandoned by their union. The essential onus is on the individual to advance their case with the help of the union or without the help of the union, and I think individual employees would be losing some of their rights through this suggested Bloc amendment.

¿ (0950)

The Chair: Is there further comment?

(Amendment negatived on division)

The Chair: Madame Picard, are we to proceed with BQ-59, or do you wish to apply the vote just taken for BQ-58?

[Translation]

Ms. Pauline Picard: I want to read the clauses one by one, but without comments; the comments are the same for each amendment.

[English]

The Chair: Done. Thank you, Madame Picard.

[Translation]

Ms. Pauline Picard: So, for BQ-59, I move that Bill C-25, in Clause 2, be amended by replacing line 36 on page 85 with the following:

(2) A trade union may not present an

The explanation is the same as for BQ-58.

[English]

The Chair: Mr. Tirabassi, same response?

Mr. Tony Tirabassi: For the same reasons, Mr. Chair, not to be repetitious, we will not be supporting this amendment.

The Chair: Then I call the vote.

(Amendment negatived on division)

The Chair: Now BQ-60.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing line 1 on page 86 with the following:

(3) Despite subsection (2), a trade union

[English]

The Chair: Thank you.

Mr. Tirabassi.

Mr. Tony Tirabassi: Again, we will not be supporting this amendment.

The Chair: I call the vote.

(Amendment negatived on division)

The Chair: BQ-61.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing lines 5 to 9 on page 86 with the following:

(4) A trade union may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the trade union has the

[English]

The Chair: Thank you.

Mr. Tirabassi.

Mr. Tony Tirabassi: Ditto, Mr. Chair.

The Chair: I call the question.

(Amendment negatived on division)

The Chair: Madame Picard, BQ-62.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing lines 14 to 19 on page 86 with the following:

(5) A trade union that, in respect of any matter, avails itself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that anyone who

[English]

The Chair: Thank you.

Mr. Tirabassi.

Mr. Tony Tirabassi: My comments are the same. We cannot support this amendment.

The Chair: Same explanation.

(Amendment negatived on division)

The Chair: BQ-63, Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing line 23 on page 86 with the following:

(6) A trade union may not present an

[English]

The Chair: Thank you.

Mr. Tirabassi.

Mr. Tony Tirabassi: The same recommendation.

The Chair: Thank you, Mr. Tirabassi.

(Amendment negatived)

The Chair: That brings us to amendment BQ-64, which is a new one; we've completed the series where we made these little amendments. Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by adding after line 3 on page 87 the following:

(b.1) harassment;

We pointed out that the 2002 Public Service Employee Survey revealed levels of harassment in the federal public service. The percentage of harassment reported in the 1999 survey was similar.

To take the harassment issue more into account, I'm proposing that the new PSLRA recognize that harassment grievances are a type of grievance that may be referred to arbitration if there's no agreement between the injured person and the employer.

¿ (0955)

[English]

The Chair: Thank you.

Mr. Tirabassi.

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

The amendment wishes to include harassment grievances for adjudication. The government has a comprehensive policy on harassment, which it reviews and updates regularly. Also, the employer is working jointly with its union partners, such as PSAC, on training in prevention and resolution of harassment. I should also note that some grievances involving harassment are adjudicable. For example, if the alleged harassment involved discipline resulting in suspension or termination, that is adjudicable. For the information of the committee, this is linked to Bloc amendment 3, which was previously defeated. So the government will not be supporting this amendment.

The Chair: Thank you.

Madame Picard.

[Translation]

Ms. Pauline Picard: If you have equally effective policies for preventing harassment, how is it that the 2002 survey did not show that the situation had improved since the 1999 survey?

[English]

Mr. Tony Tirabassi: Mr. Chair, since we could be dealing with different types of harassment, I would refer to the officials for some clarity on that.

The Chair: Yes, we also had a lengthy discussion of this, I believe, in relation to BQ-3.

Madame Boudrias.

[Translation]

Ms. Monique Boudrias (Assistant Deputy Minister and Senoir Advisor, Task Force on Modernization of Human Resources Management in the Public Service): When we put in place new harassment prevention policies and methods and work with our union partners, at the start of those incentives, employees feel much freer to go and talk to their union and to their manager about harassment problems in the workplace. So it's natural to see an increase in the number of cases at that point; that's a normal curve. We're conducting follow-up in the departments on that to ensure that, as matters progress, there is a reduction in the number of those cases. We are currently encouraging our employees not to accept harassment.

So the curve is normal when we've just implemented measures to aid in resolving the problems of harassment in the workplace. We tell them not to let themselves be harassed, not to accept it, to come and see us and to report the harassment.

We'll take a look at the situation once there have been three or four surveys. We established a learning committee with the Public Service Alliance of Canada in order to give joint courses on harassment in the workplace. We hope to be able to see a reduction in the number of cases in the next surveys.

The present situation doesn't disturb us overly.

[English]

The Chair: Thank you, Madame Boudrias.

Mr. Forseth.

Mr. Paul Forseth: I think the point is that the topic of harassment is not being abandoned, it's just that it's in the wrong place. I've got some amendments coming forward, and I think I've got some agreement that they're going to enhance or support the general internal policy. So we're going to have some amendments to bolster what's in place now. Harassment not a topic that's being abandoned by the legislation, it's a technical matter as to how you get it done in the right way.

The Chair: Thank you, Mr. Forseth.

(Amendment negatived on division)

The Chair: That brings us to BQ-65. I notice that there is a line conflict with BQ-66, so if BQ-65 is adopted, BQ-66 cannot be put. I suppose this would leave the door open to dealing with them together.

[Translation]

Ms. Pauline Picard: Mr. Chairman, I move that Bill C-25, in Clause 2, be amended by replacing lines 16 to 18 on page 87 with the following:

^ç	(d) demotion or termination for any reason that

We are very disappointed that the government has not taken the opportunity afforded it to give the employees of separate employers the right to refer to arbitration grievances on termination of employment for non-disciplinary reasons. Employees for whom Treasury Board is the employer have that right, but only the employees of separate employers designated by the Governor in Council have it as well.

But those designations are few. It follows that an employee of Parks Canada who has lost his or her job for reasons of disability or incompetence cannot challenge that termination of employment, whereas an employee for whom Treasury Board is the employer can. This situation is all the more unfair since Parks Canada employees had that right when they were under Treasury Board's jurisdiction, but lost it when the agency was created.

We recommend that the distinction established in this clause between the core public administration and the separate agencies be abolished.

À (1000)

[English]

The Chair: Mr. Tirabassi.

Mr. Tony Tirabassi: Mr. Chair, I will turn to Mr. LeFrançois for an explanation.

[Translation]

Mr. Michel LeFrançois: Thank you, Mr. Chairman.

Ms. Picard, you are right to point out that there is a somewhat different regime for Parks Canada employees. Before addressing this question, I want to go back a bit and explain why the distinction exists.

Termination of employment for non-disciplinary reasons was originally addressed under the Public Service Employment Act. That changed in 1992 with the Public Service Reform Act, but the system was preserved as it was for separate employers because most of those employers had never been subject to the Public Service Employment Act. That's why the distinction exists.

You're right to say that, prior to 1997, Parks Canada employees came under Treasury Board's jurisdiction and thus had the same rights. However, the Canadian Food Inspection Agency is one of the designated agencies. That's the mechanism that must be followed in order to give Parks Canada employees the rights you're talking about; it's that designation mechanism.

Accepting this amendment would have the unfortunate effect of imposing on employers a system that has never been applied to them. That's why the amendment is a bit too broad. The appropriate mechanism is the one that already exists, that is to say designation by order in council.

[English]

The Chair: Madame Picard.

[Translation]

Ms. Pauline Picard: If the Parks Canada agency were designated by order in council, would its employees be treated equally? From what I understand, there's something unequal or unfair in this way of proceeding.

Mr. Michel LeFrançois: Parks Canada employees are not without means; they may file a grievance. That's a right that every employee has. However, if they are dissatisfied with the final outcome at the final level of the grievance procedure, they do not have a right to submit that grievance to the Public Service Staff Relations Board. The only remaining option they have is a legal challenge in the courts.

Since the Canadian Food Inspection Agency was designated by the mechanism provided for in the present act and in the bill, its employees could go to the Public Service Labour Relations Board.

Let's come back to your question. There is a mechanism for Parks Canada employees or the employees of other separate employers, but that mechanism is not the same as the one for employees governed by the Treasury Board.

À (1005)

[English]

The Chair: Okay, I'll call the question on BQ-65.

(Amendment negatived on division).

The Chair: Madame Picard, BQ-66.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing line 17 on page 87 with the following:

agency.

Many employees are in the service of separate agencies. Those employees are put at a great disadvantage by the provisions referred to. An employee of a separate agency who is demoted or terminated for non-disciplinary reasons or improper conduct such as harassment, unsatisfactory performance and so on has no access to an independent third-party review under the act. That means that he or she must try to obtain compensation for unfair dismissal by means of a civil proceeding. If the Governor in Council designates a separate agency by order, as provided in subclause 209(3), those employees should have the same rights as the other 30,000 employees of the core public administration who can have access to the Commission.

In fact, the injustices of the paragraphs preceding section 209 appear in the present Public Service Staff Relations Act, in section 29, which came into force by the adoption of the Public Service Reform Act in 1992. Granting the Public Service Staff Relations Board the power to judge cases of unjustified dismissal at least offers three benefits to employers, employees and their respective representatives: specialized expertise in rendering judgment on conflicts, faster decisions and an absence of court costs. There's no justification for treating the employees of separate agencies differently.

[English]

The Chair: Thank you.

Mr. Tirabassi.

Mr. Tony Tirabassi: We will not be supporting this amendment, Mr. Chair, for reasons stated previously.

The Chair: I call the question.

(Amendment negatived on division)

The Chair: That moves us to BQ-67. Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by deleting lines 26 to 28 on page 87.

The explanation is the same as for BQ-66. I won't repeat it.

[English]

The Chair: Thank you, Madame Picard.

Mr. Tirabassi, will you also spare us?

Mr. Tony Tirabassi: Yes, Mr. Chair. I would move that we do not accept this amendment.

The Chair: Thank you, Mr. Tirabassi.

(Amendment negatived on division)

The Chair: That moves us to BQ-68. Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing line 35 on page 93 with the following:

(i) with the approval of the Canadian Human Rights Commission, award interest in the case of grievances

We believe that the bargaining agent's control of the outcome of grievances helps enhance the credibility of remedies sought, since the bargaining agent must conduct a serious analysis of each case submitted to it before putting it before the employer agency. The main advantage of this procedure is to avoid invalid applications.

In proposed sections 226 to 238, the bill provides not only that the new commission will confer exclusive authority on the adjudicator to decide issues concerning the conditions of employment provided for in the collective agreement, but also clearly established powers of interpretation and application of other federal statutes, including the Canadian Human Rights Act. Those amendments are clearly incomplete, since the adjudicator would be limited to rendering only orders provided for in subsections 53(2) and 53(3) of the Canadian Human Rights Act, that is to say only powers to order compensation for moral injury to the victims of discriminatory acts and the award of punitive damages. The bill therefore does not confer on the adjudicator authority to issue any other form of order to compensate for injury suffered or orders to cease discriminatory behaviour.

We therefore disagree on this last amendment and we contend that only the Canadian Human Rights Commission should, as it has already done, rule on any complaint submitted to it, provided it considers that the victim of discriminatory acts has first exhausted the grievance arbitration remedy which is normally open to him.

À (1010)

[English]

The Chair: Okay.

Mr. Tirabassi.

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

We feel that the award of interest should not require pre-approval by the CHRC. Why would it? I'd like to note that interest could be in play in a lot of cases where there is no human rights issue. This motion would have the effect of requiring the CHRC approval, and I'm afraid it doesn't make a lot sense, so we will not be supporting this amendment.

The Chair: Mr. Proctor.

Mr. Dick Proctor: I've consulted with the Public Service Alliance on this, and I think the point my colleague Mr. Tirabassi makes is a sound one. I'm advised that this would require the Canadian Human Rights Commission to approve the awarding of interest in grievances even when there are other than human rights cases involved. So I too will not support BQ-68.

The Chair: You see, Mr. Tirabassi, when you're persuasive, you can actually change opinions. I'm impressed.

(Amendment negatived on division)

The Chair: Let's move to BQ-69.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing line 6 on page 94 with the following:

oral hearing, provided that the parties involved agree that the matter does not require an oral hearing.

Section 227 of the bill confers on the adjudicator authority, once again, to summarily dismiss any matter referred to adjudication without holding a hearing. This discretion is unlimited as well and could result in injustices, such as in the case of a grievance on a demotion or a discrimination case. That is why we must really vote in favour of this amendment.

[English]

The Chair: Okay.

Mr. Tirabassi.

Mr. Tony Tirabassi: Mr. Chair, we will not be supporting this amendment. Adjudicators should be able to judge when paper hearings are appropriate. If you make it dependent on both parties' agreement, it will be extremely rare that you run into that, since one party often has an interest in dragging out the case, especially if they feel they have a weak case. We feel the adjudicator would be able to make that judgment. We will not be supporting this amendment.

À (1015)

[Translation]

Ms. Pauline Picard: That's no problem.

[English]

The Chair: I call the question on BQ-69.

(Amendment negatived on division)

The Chair: BQ-70, Madame Picard.

[Translation]

Ms. Pauline Picard: I move that Bill C-25, in Clause 2, be amended by replacing lines 4 to 7 on page 95 with the following:

have been made for valid reasons.

We are opposed to the proposed wording of section 230 because, in our view, that provision may have the effect of putting employees in a permanent state of probation.

For an employee whose performance is claimed to be unsatisfactory, dismissal is extreme punishment. Knowledge-based work is a complex, constantly changing and at times unclear task.

In today's workplace, professionals must adapt quickly to ever-faster change. Employees must take part in ongoing learning programs to ensure they remain employable in a dynamic workplace.

The employer's obligation to provide training and assistance to employees, and to manage a workplace subject to frequent and substantial change, is also important. It is essential to recognize and accept this situation before concluding that an employee's performance is unsatisfactory and deciding to put an end to the employer-employee relationship.

A decision in favour of dismissal, capital punishment for an employer-employee relationship, must allow for attenuating circumstances which may perhaps have an influence on performance. These may include, for example, a health problem, a family crisis, harassment or discrimination, lack of education and clear expectations with regard to performance or lack of time and resources to perform high-quality work. Above all, it must be determined to what extent uninitiated managers are able to understand that constitutes satisfactory performance in the case of highly specialized professionals.

The adjudicator must have the opportunity to consider these factors in order to be able to determine whether the decision to dismiss for unsatisfactory performance was justified or not.

Under section 230, an adjudicator who considers a case of dismissal for unsatisfactory performance outside a probation period must limit himself strictly to the question whether the deputy head's opinion of the employee's performance was reasonable. That's much too restrictive. He should instead wonder whether or not the deputy head's decision to terminate the employee was based on valid grounds.

An adjudicator must be able to assess a termination in the context of the circumstances that affected the employee's performance. Were the employee's deficiencies pointed out to him or her? What measures were taken to correct the problems? Are there any other solutions besides termination? The adjudicator must be empowered to ask this type of question and must not be limited to establishing whether or not the deputy head's opinion was reasonable.

With the proposed wording of section 230, the question of reasonableness could boil down to a determination of what the deputy head knew about the case. Did he or she receive answers to questions asked? In short, that's an evaluation confirming that the deputy minister did not ask in a frivolous or vexatious manner. The right to an independent third party review of terminations should be a fundamental employment right. Although it rarely occurs, employees do have problems with managers, which result in terminations without just cause.

Deputy heads, as might be expected, generally give their managers the benefit of the doubt when disputes arise in the workplace.

À (1020)

For justice to prevail, an independent adjudicator must have the flexibility to fully investigate the circumstances, determine the plan of action and order the corrective measure.

Employee morale and organizational efficiency depend on access to a corrective measure where management makes unfair decisions affecting employees' careers.

[English]

The Chair: Thank you, Madame Picard.

Mr. Tirabassi.

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

The amendment takes out the concept of reasonableness, and the government policy is to have the adjudicator review reasonableness of the decision to terminate based on poor performance. The adjudicators are still able to review what steps were taken, assistance that may have been offered to the employee, the time to correct the problem, training, etc. I feel the concept of valid reasons that is introduced in the amendments is too open, and so we will not be supporting this amendment.

The Chair: Thank you.

Mr. Forseth.

Mr. Paul Forseth: I'm just looking at proposed section 230. It seems rather convoluted, and I see it has to be for cause “if the opinion of the deputy head that the employee's performance was unsatisfactory is determined by the adjudicator to have been reasonable.” This is new. Then I read the explanation in the manual, which goes on in three paragraphs. It's still unclear to me why this section is needed. The way things are in the public service right now, it's very hard to actually terminate employees who are poor performers; the onus is very great, and it's often difficult and inconvenient for a manager, so they just let things slide, rather than having a clear set of criteria to ensure good performance and to separate an employee. So in view of the paragraphs in the manual, what is the need for this new section?

The Chair: Mr. LeFrançois.

Mr. Michel LeFrançois: Thank you, Mr. Chairperson.

That's a valid point, Mr. Forseth. The reason the section is drafted in that fashion is that it's the state of the law that one may not be terminated unless there is cause. The employer can't just decide one day that you're fired for no reason. You put your finger on it when you say it's extremely hard to demote or terminate in the public service for unsatisfactory performance. It's not only very hard, it's extremely harmful to the workplace if someone who performs unsatisfactorily remains there for months, if not years, or forever.

In part in answer to the points made by Madame Picard earlier, this section doesn't narrow the scope of inquiry of an adjudicator. The adjudicator is free to inquire and hear evidence on the circumstances, the personal circumstances of an employee, the professional failings, if any, and so on. What the section does narrow, however, is the adjudicator's ability to substitute his or her opinion as to the proper remedy for that of the deputy head. Normally, if the standard is cause, period, the adjudicator will hear whether the evidence supports the allegations of the employer, and if it does, the adjudicator embarks on this second part of his or her inquiry, whether the punishment fits the crime; in other words, is termination too severe a penalty? What this section wants to do is affect that second part of the inquiry and give to the deputy head the benefit of the doubt, give some deference to the decision of the deputy head, so that the adjudicator doesn't substitute his or her discretion wholly for that of the deputy head. So there's a parameter, reasonableness, a ball park inquiry, if you will. Let's say in a discipline case you were suspended for five days, and the adjudicator thinks it merits four. This is an attempt to suggest the decision, if it merits something close to that, I will not interfere in the decision of the deputy head.

À (1025)

The Chair: I'll call the question

(Amendment negatived on division)

The Chair: That brings us to government amendment 6. Mr. Tirabassi, would you care to move this amendment?

Mr. Tony Tirabassi: Yes. We are moving that Bill C-25, in clause 2, be amended by replacing lines 15 and 16 on page 95 with the following:

If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator's decision in respect of the policy grievance is limited to one or more of

This ensures that certain remedies are available for policy grievances, such as an order for the employer to remit union dues to a bargaining agent. This is to address a concern by PIPS to preserve the status quo. Mr. Chair, I would move that amendment.

The Chair: If I may add a clarification also, the amendment we are putting is the one that has the number 232 and the language that follows that. The little note above, “Decision in respect of certain policy grievances”, is not part of the amendment.

(Amendment agreed to)

The Chair: I will come back to my comment on the marginal notes in a minute.

That brings us to BQ-71, but before we proceed, I'm going to make a chair's ruling. This very comprehensive amendment seeks to add a section to the bill and is beyond the scope of this particular bill, as this is a second reading bill, so I do have to rule this amendment out of order.

Madame Picard.

À (1030)

[Translation]

Ms. Pauline Picard: Mr. Chairman, I would like to know why you're rejecting this amendment. Why is it out of order?

[English]

The Chair: We all understand that with a second reading bill, amendments that move beyond the scope of the bill or add a new process to a bill are beyond the scope and not in order. This amendment seeks to amend clause 2 by introducing a new provision dealing with the establishment of policy on disclosure of information concerning wrongdoing in the workplace. It is believed by the table that is beyond the scope of this particular bill, and that is why I've been advised to rule it out of order.

[Translation]

Ms. Pauline Picard: Thank you.

[English]

The Chair: If you'd like more detail, you might raise it with the table.

Mr. Forseth.

Mr. Paul Forseth: Just because we receive the amendments and they are on the docket to be moved, it does not mean they've already been ruled in order or out of order. On several occasions I have brought up issues I have felt were out of order, and the word back from the chair here was that they thought they were in order. It may mean there are future ones I'll think are out of order, and I'll bring it up at that time.

The Chair: The point was raised as to what degree of vetting takes place by the drafters in the preparation of this. Basically, the drafters don't want to impose their will upon the members' right to bring forward an amendment, but they will identify if it is out of order and alert the chair to that in the list I get. For example, this committee has been quite aggressive in overruling its hard-working chair. Even if it is in order, it might then be taken out by the Speaker. In this particular case I have made a ruling, and I have not heard any challenge to it at this point.

Mr. Proctor.

Mr. Dick Proctor: I'd like some clarification on the explanation that was received. You advise the chair when you believe it's out of order. What about the party that submitted the amendment? Do you advise them that you think it's out of order? The reason I'm asking this is that the New Democratic Party has a similar amendment on whistle-blower protection later on in the legislation. Am I to understand that when we get to that one, it will be recommended that it be ruled out of order as well?

The Chair: Let's deal with the first part of the question. If the drafters note that in their opinion, something may be out of order, do they inform the party that has drafted that? They may still proceed with it, but do they inform them?

Ms. Joann Garbig (Procedural Clerk): For the information of committee members, we're talking about two groups of people here. We have legislative counsel, lawyers who take the members' instructions for the preparation of amendments, and they will prepare amendments in accordance with the members' directions. Those amendments are then forwarded to the members, who may decide to send them on to the committee clerk for inclusion in the amendments package for the clause-by-clause study. Every amendment that is submitted to the clerk comes before the committee for consideration during the clause-by-clause. This is different from the process at report stage, where the Speaker has a power to select amendments that will come before the House for debate. Normally, in advance of the clause-by-clause study committees will send to each member a memorandum identifying for the members who the legislative counsel is and who the legislative clerk is, and members may contact those people, either for the preparation of amendments or, in the case of questions, as to the legislative process, the admissibility criteria for amendments, and so on.

À (1035)

The Chair: But the question concerns if at some point in that process it is identified that a particular amendment may or may not be in order. In this particular case someone in that process identified that this is beyond the scope of the bill and provided me with some background on that. Mr. Proctor's question is whether that same information is communicated to the person who is proposing the amendment.

Ms. Joann Garbig: Ordinarily, the rulings are given in committee by the chair. What we do as legislative clerks is advise the chair. If any member has questions as to the admissibility of amendments they plan to put forward, the legislative clerks are there to answer those questions.

The Chair: It's an interesting process question, though, Mr. Proctor raised. If a member knew their amendment might be out of order, perhaps they wouldn't proceed with it or would change it in some fashion or seek a different solution. Is there an operational problem with informing them, or at least raising the question?

Ms. Joann Garbig: Perhaps it's more of a procedural concern, in that it's always open to a member to change the wording of an amendment before they move it in committee. Further, our advice to the chair is just that, advice. The chair may act on it in accordance with his or her wishes at the time.

The Chair: Mr. Forseth.

Mr. Paul Forseth: There's still a piece missing from the explanation. Once it comes to the clerk, who is doing the reviewing to see whether it is in or out of order, and who is drafting that advice you have on the table?

Ms. Joann Garbig: We're a team of legislative clerks. Our deputy principal clerk, who is a table officer, will assign each of us to a bill when it goes to committee. When it comes to examining the amendments that come forward, we take a team approach. Generally speaking, since the Speaker's ruling of March 1999 that laid out new guidelines for report stage it's become clear that the committee stage is the main amendment stage for legislation. Consequently, the stance we take is that we will not advise that something is inadmissible unless it is very clear to us that this is the case. It is better, in our view, for a committee to take such a decision, unless it's very clear to us that there is an admissibility issue there.

Mr. Paul Forseth: So let's get specific about this bill. Who is the individual reviewing those amendments to give the advice as to whether they are in order or not?

Ms. Joann Garbig: In this particular case we've had amendments coming in pretty well throughout the process, so at various points during that process our deputy principal clerk has always been involved and consulted on each and every one. At various other times it was mostly me, since I am the legislative clerk working primarily with this bill, and at times it was other members of the team.

Mr. Paul Forseth: Okay. That's helpful.

The Chair: Thank you.

Madame Picard.

[Translation]

Ms. Pauline Picard: Mr. Chairman, I've been informed that, when we began the clause-by-clause consideration, it was said that all the amendments would be in order. Why was that decision changed along the way?

À (1040)

[English]

The Chair: Madame Picard, I was under the same impression as you, that at the point they appeared, they were deemed to be in order for dealing with by the committee.

To resolve this and not delay our process, I think it may be useful for me to take this question back to the liaison committee for clarification on the rules in future. It seems reasonable that parties would be informed if there were a concern about the admissibility of a particular amendment in advance, rather than having it happen right at the table here. So rather than spend more time now on this, I'll take that matter up with the liaison committee and report back to you on this general question of the procedure for dealing with amendments and these rulings on admissibility.

I am now in the hands of the committee on this particular amendment. Would the committee like me to allow Madame Picard to move the amendment, so it can deal with it, or does the committee wish to proceed along the lines of the ruling that's been made?

Madame Picard.

[Translation]

Ms. Pauline Picard: I'm in favour of your proposal.

[English]

The Chair: Thank you very much, Madame Picard. I appreciate that.

That would take us to government amendment 6.1. This is a new one, but to be clear, this is actually the termination of the Bloc amendments on this clause, except that we have four that have been stood.

Mr. Tirabassi.

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

I move that Bill C-25, clause 2, be amended by replacing line 9 on page 102 with the following:

Five years after the day on which this

This replaces the seven years in the document. There have been several who have spoken to this issue and expressed a concern that a review should be sooner rather than later. This is what this particular amendment does.

The Chair: So this is reducing from seven to five years from date of proclamation?

Mr. Tony Tirabassi: Yes.

The Chair: Is there any comment or question?

(Amendment agreed to)

The Chair: We are now going to move to four Bloc amendments that were stood in the early going on this bill. With two of them, BQ-1 and BQ-2, I think it is fair to say there was some confusion as to procedure as much as content, and they were stood until we had an opportunity to clarify that. So it would be useful, Mr. Tirabassi, to hear the government's position after the conversations that took place. Then we'll proceed with BQ-14 and BQ-15, which were much later in the process. They have already been moved. There was an agreement by the committee to stand them.

Perhaps, then, Mr. Tirabassi, you could begin by responding on BQ-1.

Mr. Tony Tirabassi: In view of all the other amendments that have been put forward on the PSLRA and the decisions that have been made, our reasons haven't changed on BQ-1, or BQ-2 for that matter. We feel neither the employer's rights nor the union's rights are paramount in the federal public service. Both are subject to the public interest, which should be paramount. That's the reason we will not be supporting BQ-1.

The Chair: Madame Picard, are you clear? You were not the member who was dealing with this at that time. BQ-1 and BQ-2 were moved by Mr. Lanctôt, and the committee agreed to stand them because there was a bit of concern about process. Do you wish to make a comment on that, or shall I call the question?

À (1045)

[Translation]

Ms. Pauline Picard: No, Mr. Chairman.

[English]

The Chair: Thank you.

Mr. Forseth.

Mr. Paul Forseth: I gave the opinion that the amendment was so fundamentaly against the thrust of the bill as passed at second reading that it was out of order. I still have that opinion.

The Chair: Thank you, Mr. Forseth.

I will call the question on BQ-1 and BQ-2.

(Amendments negatived on division [See Minutes of Proceedings])

The Chair: Madame Picard, the reason I'm not asking you to move them is that they already have been moved. So let me call upon Mr. Tirabassi to comment on BQ-14, and if you wish to make additional comments, I'll come to you next. We'll just reverse the order.

Mr. Tony Tirabassi: I would just offer the following comments. In the current act, the chair, vice-chair, and the deputy chairs are appointed by the Governor in Council. Members are appointed by the Governor in Council from a list of names submitted by the bargaining agent and the employer respectively. This has not changed in Bill C-25, except that deputy chairs have been replaced by vice-chairs, as in other boards.

It is important that the PSLRB be seen by all stakeholders, both employees' bargaining agent and employer, as being independent. At the same time, a balance of backgrounds and perspectives is an important element. In the case of members appointments are made from the list and, to the extent possible, an equal number are appointed from among persons recommended by the employer and persons recommended by the bargaining agent. This ensures a balance of perspectives and backgrounds. The chair and vice-chairs have other roles and responsibilities in addition to those of other members of the board. Some of those roles and responsibilities are incompatible with being appointed from one side or the other.

The chair has a leadership role in the new compensation analysis function. She or he receives advice from the advisory board--proposed section 53--and, as CEO, may direct what specific compensation research is to be carried out. Given the sensitivity of this function, the chair cannot be seen as having been appointed from the list. The same holds true for the vice-chairs. The bill allows the chairperson to delegate one or more of his or her powers and functions to the vice-chairs--proposed section 45. If the vice-chair is acting as the delegate of the chairperson in a sensitive function, the vice-chair also cannot be seen as having been appointed from a list. Finally, on a practical level, since there may be three vice-chairs, it would be impossible to have this balance, as suggested by Monsieur Lanctôt.

As a result, we will not be supporting BQ-14 or BQ-15.

The Chair: Do you have any further comment, Madame Picard?

Ms. Pauline Picard: No.

The Chair: I shall call the question on BQ-14 and BQ-15.

(Amendments negatived on division [See Minutes of Proceedings])

The Chair: Lend me your ears for a minute, because we have a few things to do here that are going to be interesting. After, one could say, seven weeks of hard work, we've now arrived at the conclusion to clause 2 of this bill. Shall clause 2 carry as amended?

Mr. Szabo.

Mr. Paul Szabo: For my education, Bill C-25 includes an act that was totally enclosed in clause 2, but there is an existing act under the same name. How is the existing act repealed, to be replaced by this? Is there a separate motion or a clause saying this supersedes or something? How does that transition happen? Is there any wording necessary in Bill C-25 to say the previous act is repealed?

À (1050)

The Chair: I believe the answer is that there are some consequential amendments to the existing act also. This act wouldn't come in before the date of proclamation.

Mr. Quail.

Mr. Ranald Quail: Mr. Chairman, part 8, clause 285 deals with the repeal of the existing act. Part 8 provides for the repeal of the Public Service Staff Relations Act and the Public Service Employment Act or any of their provisions on a day or days to be fixed by the Governor in Council.

Mr. Paul Szabo: And you're satisfied with clause 2 as amended?

Mr. Ranald Quail: Yes, sir.

Mr. Paul Szabo: It, in its entirety, would be the document that would replace the existing act?

Mr. Ranald Quail: Yes. There may be some provisions in the way that gets implemented, and we also cover that off where we talk about transitions and consequentials. But the repealing of it, which was your particular first question, is fully covered off in part 8.

Mr. Paul Szabo: Okay.

The Chair: So let us vote.

(Clause 2 agreed to on division)

(On clause 3)

The Chair: I have no amendments proposed to clause 3, which is a change to the Financial Administration Act that I believe is consequential to the changes we just passed, so I can call the question on the clause.

(Clause 3 agreed to on division)

(On clause 4)

The Chair: This moves us to a bit of an administrative issue here that I wish to just take a second on, because I'm interested in trivia. Clause 4 seeks only to add a heading. Under the rules of procedure, headings and marginal notes do not form part of the bill, but are intended to be guide posts for the people reading bills, which is why I made the point before about the marginal note in that earlier amendment. It is really just a positioning instrument. It has always been the practice of the House that those are the things the clerks amend continuallly, because they don't determine the action, they're just organizational. For some reason, in this bill there are a five clauses that seek to embed headings into the text. It is argued by the table that this is not appropriate, and it is argued by the clerks that it's not consequential, because they can change them anyway, although it could be argued by the committee that once the committee has dealt with it, it is frozen in the bill, that they could not come back and undo it. This is a point of debate.

Given that clause 4 simply seeks to add a heading, I suppose the government could withdraw it, or the committee may wish to defeat it. That's really the question before the committee.

Would Mr. Tirabassi like to make a comment on this?

À (1055)

Mr. Tony Tirabassi: Mr. Chair, we are prepared to withdraw.

The Chair: So do we have unanimous consent to withdraw clause 4?

[Translation]

Ms. Pauline Picard: Mr. Chairman, I'm having trouble voting because I don't understand what you want to do. Do you want to withdraw the bill?

[English]

The Chair: The clerk has explained to me that in the bill there is the text of the clauses, and they must be passed by the committee. We had this before, where we had a difference between the French and English, and we said, let the drafters or the translators clean that up. The advice was that we couldn't do that, so they brought the corrections back to the committee and we had to pass them.

Similarly, there are elements of a bill that are not the operational text. There will be marginal notes that are considered to be guides to the reader going through the bill. They are not amendable. While you may put them in the bill, they're not voted on, because the drafters, and subsequently the people who produce these bills, may alter them just for ease of reading. So they're considered to be the property of the legislative editor. Here, though, because this bill adds some new clauses, they've put some of those headings into the text as clauses to be passed. There's an opinion that whether we pass them or not, it's irrelevant, they'll just take them out anyway, but formally, the committee has the authority to pass, and you could argue that once it's passed, it can't be changed. The editor may at a different time may want to change it, because it's not consequential to the action of the bill, it's just for the reader who's reading the bill

So it is suggested that we not carry this clause, and then we're away from the confusion. But I'm told right now that we can't withdraw it.

Mr. Forseth.

Mr. Paul Forseth: Just read the clause, so we know in the record what it is. It's page 103.

The Chair: “The Act is amended by adding the following before section 5,” and that is “Establishment”, in French “Constitution”.

Mr. Paul Forseth: Just that word? That's what we're talking about at this time?

The Chair: That's it. It's a positioning thing.

Mr. Paul Forseth: I notice also that the numbering of the lines in the bill does not include those titles.

The Chair: That's right. They're not numbered, they're not referred to in the act. This is just a drafting error in the creation of this bill, I am advised.

Mr. Szabo.

Mr. Paul Szabo: The way Bill C-25 was described, in the two instances we are doing rewrites of an existing act, as opposed to doing a whole new act. I'm wondering whether or not they wanted this so that those titles etc. would appear. This is different.

Á (1100)

The Chair: Their argument is, they appear anyway.

Mr. Paul Szabo: I understand that. I understand it when we have a bill that creates a new act and all the titles and all the other stuff are separate, but the description here was that this was a rewrite of an existing act. It changes an awful lot of things, Mr. Chairman. As a consequence of having passed clause 2 of Bill C-25, we have not only dealt with the amendments proposed by members, we have also ratified new sections or changes to other sections that nobody wanted to amend, but have been amended in the rewrite. One notable example is that the oath sworn by public servants now excludes any reference to the Queen. There was no discussion and no vote on that particular clause. So what we're doing right now is a little bit different from dealing with a bill to create a new act.

The Chair: Yes. With the two major acts and other amendments structured the way they are, it's unfortunate that decision was taken. But you have to remember that this particular item is really about something that can be achieved at any time. This is a drafting error, as opposed a consequential amendment.

Madame Picard.

[Translation]

Ms. Pauline Picard: Mr. Chairman, I'm wondering. Repealing this word would mean rejecting it. Wouldn't it be better to amend it?

[English]

The Chair: Let me read you this from Marleau and Monpetit House of Commons Procedure and Practice, page 657:

Because the marginal notes attached to each of the clauses of a bill are not part of the text, they cannot be amended, nor can the headings of various parts of the bill be amended.

What has happened here is that for some reason--it may have been an error in drafting--they put a clause in that does nothing more than introduce a heading. They can have what they wish, they being anybody who is looking at these bills, because headings and marginal notes are guides to the reading of the bill, as opposed to the substance of the bill. But even though it can't be amended, once we pass it, it's there. Then, one could argue, they couldn't change it.

Mr. Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Mr. Chairman, I will vote in favour of this clause. I'm going to err on the side of caution here, because even if the committee reports back with clause 4 adopted, an amendment can be introduced at report stage by the government, if it so wishes, to delete it. In that sense, we keep our options open.

The Chair: But if the Speaker follows Marleau and Monpetit, he will rule such an amendment out of order. This is just an oddity created in the way the thing is drafted. Marleau and Monpetit say headings cannot be amended. This is a simple heading, that's all it is. This is indeed trivia, but it's quite clear here. That's the dilemma.

Mr. LeFrançois.

Mr. Michel LeFrançois: Mr. Chairman, I'm in your hands, but I understand that the headings indeed may be changed by amendment. The purpose of the suggestion here, Mr. Chair, is that “Establishment” be substituted as a heading, because the present heading reads “Treasury Board”, which doesn't say anything. “Establishment” clues us in as to what these following provisions are all about.

The Chair: My understanding is that those kinds of decisions can be made entirely by the editors at any time, they do not require passage.

Mr. Michel LeFrançois: Then perhaps, through the clerk, we could suggest that the editors may want to consider our suggestion.

[Translation]

Ms. Pauline Picard: Mr. Chairman, there's no point in us talking. We can't vote because we no longer have a quorum. I'm sorry.

Á (1105)

[English]

The Chair: That's right, we no longer have a quorum here. That being the case, we will take advantage of this little dispute to adjourn, but let me say this first.

There's no obstruction for the drafters of the bill to get what they want in the labelling of the sections of the act. It is simply a procedural issue, and the committee is being invited to do something committees traditionally are not empowered to do. One could argue then, if they've done it and you wanted to make a subsequent change for ease of reading or ease or organization, you would not be able to do it. You may want to seek some clarification on that. Given that we don't have quorum and we're going to adjourn, we'll deal with it on Tuesday.

We'll reconvene on Monday at 11 o'clock to deal with estimates, and on Tuesday at 9 o'clock we'll continue with this bill.

So we're adjourned.