OGGO Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, March 18, 2003

Á

1110

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

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

Á

1115

Á

1120

The Vice-Chair (Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CA))

Á

1125

Mr. Robert Lanctôt (Châteauguay, BQ)

Mr. Steve Hindle

Mr. Robert Lanctôt

Mr. Steve Hindle

Mr. Robert Lanctôt

Á

1130

Mr. Steve Hindle

Mr. Robert McIntosh (Policy Advisor, Professional Institute of the Public Service of Canada)

Mr. Robert Lanctôt

Mr. Steve Hindle

Mr. Robert Lanctôt

Mr. Steve Hindle

Á

1135

Mr. Robert Lanctôt

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Mr. Tony Tirabassi (Niagara Centre, Lib.)

Mr. Steve Hindle

Á

1140

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Mahoney (Mississauga West, Lib.)

Mr. Steve Hindle

Á

1145

Mr. Steve Mahoney

Mr. Steve Hindle

Mr. Steve Mahoney

Mr. Robert McIntosh

Mr. Steve Mahoney

Mr. Steve Hindle

Mr. Steve Mahoney

Á

1150

Mr. Steve Hindle

Mr. Steve Mahoney

Mr. Steve Hindle

Mr. Steve Mahoney

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Hindle

Á

1155

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Mr. Robert Lanctôt

Mr. Steve Hindle

Â

1200

Mr. Robert Lanctôt

Mr. Steve Hindle

Â

1205

The Vice-Chair (Mr. Paul Forseth)

Mr. Tony Tirabassi

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Mr. Steve Mahoney

Mr. Steve Hindle

Â

1210

Mr. Steve Mahoney

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

Â

1215

Mr. Steve Hindle

Mr. Steve Mahoney

Mr. Steve Hindle

The Vice-Chair (Mr. Paul Forseth)

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CANADA

Standing Committee on Government Operations and Estimates

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NUMBER 016

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, March 18, 2003

[Recorded by Electronic Apparatus]

Á  (1110)  

[English]

    The Vice-Chair (Mr. Tony Valeri (Stoney Creek, Lib.)): I'd like to resume our discussion this morning on Bill C-25 and welcome Steve Hindle and Robert McIntosh from the Professional Institute of the Public Service of Canada.

    As an opening statement, I understand there is a very thick document now on the desks of our committee members.

    Mr. Hindle, are you going to start?

    Mr. Steve Hindle (President, Professional Institute of the Public Service of Canada): Yes, I am, Mr. Chairman.

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

    I'm not going to read the big thick document.

    Joining me is my policy adviser, Bob McIntosh, who also looks forward to our discussion this morning.

    The first change to Bill C-25 that is required affects management rights and the scope of collective bargaining. Classification must fall within the scope of collective bargaining. The job evaluation and classification plan provides the structure upon which the compensation plan is developed and maintained. The determination of what work is to be valued, and its relative value within the range of work performed by an occupational group or bargaining unit, is critical to the determination of compensation.

    Work and work processes change over time. Consequently, what merits value today must be reflected in the tool used to measure and evaluate work.

    To illustrate the problem, the informatics professionals in the computer systems group remain subject to a job classification standard that dates back to the days when punch cards were still utilized. The CS classification standard was last updated on October 1, 1984.

    Out-of-date job classification standards form the basis of pay inequities and relativity issues that are unfair to employees and adversely affect the employer's ability to recruit and retain employees.

    Maintaining current and relevant job classification standards is the foundation of competitive compensation. The current antiquated job classification standards found throughout the public service cannot be blamed on the unions. The employer has had complete authority to act in this area.

    The capacity to negotiate the job evaluation and classification standards is fundamental to the negotiation of rates of pay. So our recommendation is to amend proposed section 7 to strike out “and to classify positions and” and make other consequential amendments, including the deletion of subsection (1) under proposed sections 150 and 177.

    The second change to Bill C-25 relates to the Public Service Labour Relations Act. The proposed wording of proposed section 230 may have the effect of placing employees on permanent probation.

    The modern workplace requires professionals to adapt quickly to change, and the rate of change is accelerating. Employees must commit to continuous learning to ensure employability in a dynamic workplace. Equally important is the employer's obligation to provide training and assistance to employees and to manage a workplace that is undergoing frequent and substantial change. Recognizing and accepting this reality is essential before conclusions are reached about unsatisfactory performance and decisions are made to sever the employment relationship.

    A decision to terminate employment--the capital punishment of the employment relationship--must consider extenuating circumstances that may have a bearing on performance. Some examples are the presence of poor health, a family crisis, evidence of harassment or discrimination, absence of clear instructions and expectations about performance, insufficient time and resources to complete quality work, and above all, for highly specialized professionals, an understanding by lay managers of what constitutes satisfactory performance.

    These considerations must fall within the jurisdiction of the adjudicator to properly assess if the decision to terminate for unsatisfactory performance is justified.

    Proposed section 230 limits the adjudicator's review of an employee's termination of employment for unsatisfactory performance to strictly a question of whether or not the deputy head's appreciation of the employee's performance is reasonable. This test is much too restrictive. The test should be whether or not the deputy head's decision to terminate employment was for just cause.

    An adjudicator must be able to assess a termination of employment from the context of the circumstances affecting the employee's performance. Was the employee made aware of shortcomings? What measures were taken to correct problems? Are there alternatives to termination of employment? These and other questions must fall within the scope of the adjudicator's inquiry, not simply be limited to an assessment about whether or not the deputy minister's appreciation of the employee's performance was reasonable.

Á  (1115)  

    With the proposed wording of proposed section 230, the question of reasonableness could be confined to determining how much the deputy minister knew about the case and whether he or she received answers to any questions raised--in short, an assessment that the deputy minister did not act in a frivolous or vexatious manner.

    Based on our experience, the right to independent third-party review of all terminations of employment must be a fundamental right of employment. Although rare, employees occasionally encounter problems with managers that lead to wrongful dismissals. Deputy ministers, as one would expect, typically give their managers the benefit of the doubt when disputes arise in the workplace. For justice to prevail, an independent adjudicator must have the latitude to investigate fully the circumstances, determine the appropriate course of action, and order the remedy. Employee morale and organizational effectiveness depend on the understanding that there is access to redress when management makes unjust decisions affecting the careers of employees.

    Our recommendation in this regard is to amend PSLRA proposed section 230 to delete the text beginning with “if the opinion of the deputy head” and replace “to have been for cause” to read “to have been for just cause”. That's outlined on page 23 of the larger brief.

    The third item we'd like to address specifically today to Bill C-25 relates to the Public Service Employment Act proposed section 30 and the application of merit for employment into and within the public service.

    The Professional Institute strongly supports the continued commitment to base appointments on merit. Both initial appointments into the public service and subsequent appointments within the public service must be determined by merit to ensure a non-partisan professional public service. We fear that the flexibility provided to deputy ministers under the new provisions and the limited scope of redress will increase the incidence of bureaucratic patronage.

    Proposed section 30 grants wide discretion to senior management to abuse the merit principle. Once the basic qualifications are set, the deputy head has the legislated authority under paragraph 30(2)(b) to use his or her discretion to narrow down the choice of candidates to one individual. In short, if the deputy head were intent on hiring his brother-in-law and his brother-in-law possessed the qualifications, there is ample opportunity to construct additional criteria specific to one candidate to conceal what otherwise would be a deviation from merit and an abuse of authority.

    To deter abuse or the appearance of abuse, it is recommended that the criteria established under paragraph 30(2)(b) be accessible to employees and their representatives and the public, in advance of any appointments.

    Proposed subsection 30(4) as presently worded is an ominous threat to the merit principle. On what basis will the commission, or more likely the deputy head with the delegated authority under proposed section 15, exercise authority under this subclause?

    The presence of proposed sections 32 and 34, which cover professional development apprenticeship and incumbent-based classification and positions, suggests that the need for flexibility under proposed section 34 should be limited to appointing selected priorities. It is our understanding that about 40% of all appointments now occur without competition. How much higher will this number be with proposed section 34 in force?

    In any case, this section requires clarification to reassure employees and the public that merit is indeed the overarching criterion in staffing decisions.

    So our recommendation is that by regulation, require criteria established under paragraph 30(2)(b) to be accessible to employees, their representatives, and the public in advance of any appointments, and amend proposed section 30 to add a new subsection (4) and renumber and amend current subsection (4) to read:

The criteria for merit as described in paragraph 30(2)(b) and subsection 30(3) shall be determined from time to time and published to employees, employee organizations, and made accessible to the public.

Á  (1120)  

    In the new, renumbered proposed subsection 30(4), now 30(5), the commission is not required to consider more than one person in order for an appointment to be made on the basis of merit under proposed sections 32 and 34 of this bill.

    Typically, public sector institutions provide complex services where performance is not easily measured. Without the discipline imposed by profitability, public institutions must rely on public disclosure of activities and a system of checks and balances to reassure members of Parliament that the public is receiving good value and that government programs are meeting public expectations.

    The rights of employees and their representatives represent one such check on exercise of executive authority. Assigning broad authority to senior managers to hire and fire employees, however ethical and dedicated these individuals may be, is a recipe for abuse.

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

    The legislative regime advanced by Bill C-25 will determine ongoing success at recruiting and retaining a new generation of professional expertise needed to provide federal public services in an increasingly complex and knowledge-intensive society.

    Bill C-25 needs to create an infrastructure that allows the parties to develop a positive working environment where professionals, indeed all employees, can experience satisfying careers in the public service.

    Our brief contains several amendments put forward with this goal in mind, and I trust the committee will reflect on each of these proposals.

    The three priorities raised in my remarks today are the minimum change needed to create the legislative framework that will advance the goals of this legislation as articulated by Minister Robillard. As an organization, the Professional Institute is prepared to work constructively with employer representatives on any endeavour that will improve the working environment of our members. We are committed to seeking a legislative framework that provides Canadians with a professional, non-partisan public service capable of delivering quality programs and services.

    Thank you.

    If you want to go through the recommendations or any part of the brief, we can do that too. I'm at your disposal, Mr. Chair.

    The Vice-Chair (Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CA)): Thank you. I do appreciate receiving a submission that goes directly to the bill itself, outlines specific sections, and gives specific new wording. That's the kind of focused testimony we're looking for at the committee.

    We're going to go now for questioning to Mr. Lanctôt.

Á  (1125)  

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    I would like to talk about the criteria you describe in your recommendation. I do not know whether you were in the room earlier. It seems that the criteria are prepared by public service senior managers without consultation with the unions.

    In your opinion, should consultation be required before these criteria are established, in order to ensure good working relations between managers and union or other representatives?

[English]

    Mr. Steve Hindle: We're talking about the criteria for appointment to a position. That needs to be public. Our opinion is that the managers should be able to explain to those who are interested in the position what the criteria are for appointment to the position, and they should establish that prior to making the appointment.

    We are not suggesting the unions have a role to play in management's decision as to what constitutes the appropriate criteria, whether they need somebody with a bachelor's degree in a particular discipline, a master's degree, or a PhD. That truly is for management to determine. What needs to be public is the list of criteria in advance of people applying for the job and in advance of an appointment being made.

    We do not want to co-manage the public service.

[Translation]

    Mr. Robert Lanctôt: I have not read your entire report, but the merit principle in staffing is clearly something you feel it is essential to maintain. However, it is essential if it is objective and certain criteria are applied. If there are no criteria, the merit principle becomes very dangerous. In the bill before us, the merit principle is the only thing taken into account, without any criteria being used.

    I would like to hear your views on that. If the bill is not amended, criteria will need to be established. The minister told us that if we set criteria, which already exist to some extent, it would create a problem: staffing would take even longer. It would take an additional six months, year or year and a half. We know that employees in the public service are leaving and that managers want to be able to find replacements as soon as possible. So the concept of merit that is contained in the bill is risky. I would like to have your reaction to that.

[English]

    Mr. Steve Hindle: It should not take longer to establish the criteria for appointment to a position. It is clear that Bill C-25 sets out to continue the regime that merit is the basis of appointment in the public service.

    The questions are, what is the process used to determine the merit of the individual candidates and whether or not the criteria used to establish merit are subject to review, to public scrutiny in advance of the appointment being made; and what is to be the redress for employees who feel they are meritorious enough to have warranted being appointed?

    I think this is where the argument or discussion--the disagreement--begins. The members we represent would much prefer a very open process where they know in advance of applying what the manager is looking for in a particular job. In particular, they want to know this in advance of somebody being appointed to the job. They want reassurance that they have an adequate and effective recourse mechanism to challenge decisions managers may make.

    There are not many challenges to staffing actions in the public service currently. Most staffing actions are done very smoothly, very openly, and there are very few problems with them. The problems arise when people feel that, for some reason, they were not properly assessed or that some favouritism was at play in the competitive process.

    In order to avoid this, we are suggesting that the criteria used to assess whether or not somebody is appointed to a job need to be very clear.

[Translation]

    Mr. Robert Lanctôt: Since there are no criteria right now, the problem is that there are only two possible grounds for appeal. One is abuse of power and the other is lack of assessment in the employee's preferred official language. Those are the only two grounds provided in the bill for really challenging a staffing action.

    Do you feel that challenges should be limited to only those two reasons? We know how hard it is to prove that there has been an abuse of power. It is quite complicated. Should the grounds for appeal be broadened, and what are your recommendations in that regard?

Á  (1130)  

[English]

    Mr. Steve Hindle: We do think that, with the legislation the way it's currently written, we are going to go through a very lengthy process of establishing exactly what abuse of authority means. There will be challenges to the legislation, the way it is written.

    We do have recommendations around merit, primarily that the staffing process itself should be the subject of collective bargaining. We didn't address this in our opening remarks because we know it's a long shot that the government would actually accept this.

    But it is our firmly held belief that public service employees--the people we represent--are capable of negotiating a process into their collective agreement that will provide them with proper redress, will make it possible for managers to hire in an efficient way, and will ensure that the federal public service--or the federal public administration, as they want to call it--will continue to be non-partisan and professional.

    Mr. Robert McIntosh (Policy Advisor, Professional Institute of the Public Service of Canada): Do you want to deal with that?

[Translation]

    Mr. Robert Lanctôt: I find all of that a bit strange. Earlier, we heard from another union, which told us that, on the contrary, this should be specified in the legislation, and not just in the collective agreement. They wanted powers and responsibilities to be specified in the legislation. On the issue of harassment, we heard earlier that this is something that is dealt with in the process of collective bargaining, but that it should also be included in the legislation.

    So, I find it somewhat perplexing that you are so accommodating; you say that, yes, we can do that in the collective bargaining process and it wouldn't be that crucial to have it in the legislation, whereas we heard the exact opposite earlier.

[English]

    Mr. Steve Hindle: Putting it in the legislation takes it away from the bargaining table. Our recommendation is on page 38 of the larger brief. It's the second there, on the scope of collective bargaining and staffing. We recommend the elimination of the reference to “the Public Service Employment Act” in the Public Service Labour Relations Act, proposed section 113. That's the section of the bill that limits the scope of collective bargaining.

    We believe putting it in the legislation continues to keep it out of the area of discussion that's appropriate at the bargaining table. Certainly the people we represent can agree to language in a collective agreement that is straightforward, that is not difficult to implement, and that does not infringe on the manager's right or ability to manage. But it would lay things out quite clearly in the collective agreement, which we think is the appropriate instrument for governing the relationship between employees and their employer, not legislation. We think it should be in the collective agreement, the governing principles.

[Translation]

    Mr. Robert Lanctôt: I want to be sure I've understood you correctly. You are telling me that it would be preferable if the criteria used to determine qualifications or merit were included in the collective agreement, since it might be different for each union. And the same goes for challenging staffing criteria, because the deputy minister's acceptance or rejection of an individual might be a subjective decision. So, you feel it would be better to put it in the collective agreement, rather than including it in the legislation. Did I understand you correctly?

[English]

    Mr. Steve Hindle: Absolutely, that's how we see it.

    If you put it in legislation, the only way to change it is through new legislation and the process associated with it. If you put it in the collective agreement, you allow the bargaining unit to which that collective agreement applies to tailor the staffing process to their particular needs. I would put to you that the needs of the research science community are different from the needs of even the computer systems community, both of which we represent.

    By putting it in the collective agreement, you make it subject to discussion between the employer and the employees through their representatives on a regular basis. The opportunity to discuss problems comes up every two or three years at the collective bargaining table as the contract comes up for renewal and negotiation, whether these are problems the managers are having or problems the employees are having. It allows for the staffing provisions in the collective agreement to meet the needs at the time those needs are identified, as opposed to waiting and going through a process of trying to identify a problem and changing the legislation. It also allows it to be tailored to the individual bargaining unit, whereas the most likely result of legislation would be something meant to fit the whole of the public service.

    The needs of managers in the public service differ depending on what, and who, they are managing. Running an operation that needs to be up and running 24 hours a day, such as the weather service, is quite different from running an office with regular nine-to-five hours, open to the public during the normal working week. So staffing requirements can be tailored to meet those different needs and ensure that employees have an opportunity on a regular basis to address problems they see with the system.

Á  (1135)  

[Translation]

    Mr. Robert Lanctôt: Should sections 29 and 30 be amended to specify that this must be done on the basis of consultation between the manager and employee representatives? Sections 29 and 30 referer to the manager, but there is no indication that there should be consultation with employee representatives. Should we at least amend those two sections to specify that the process should be as you've just described it?

[English]

    Mr. Steve Hindle: The legislation does contemplate co-development of staffing processes. We think it's still better if it's part of the collective bargaining process and there is a requirement to reach an agreement between the employees and the employer.

    Under the provisions for co-development of other items addressed in the legislation, there is no ability to ensure resolution of a disagreement in terms of how staffing would work. It would resort to the managers, the employer, getting to make the rules, and we think the relationship is such that the employees and the employer should be able to agree on the rules through collective bargaining.

    The Vice-Chair (Mr. Paul Forseth): Thank you.

    We will now move on to Mr. Tirabassi, please.

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

    I too would like to echo the chair's comments about the report you have submitted. Although perhaps voluminous, it is clear and I can appreciate that you are specific in your areas of concern and have even gone that one step further to suggest the actual wording changes you would like to see in there.

    As I listen to your comments today, you have indicated some areas of concern in the bill, which you feel could be improved. You spoke of job classification and the merit principle as it relates to appointments, both in terms of assessing employee performance and in terms of redress, and I look forward to reading the rest here.

    But I would just like your general comments on the overall bill and whether your organization is generally in support of Bill C-25.

    Mr. Steve Hindle: That's a difficult question. There's an awful lot in the bill that we clearly take issue with, and we felt that this was the best opportunity to address it.

    However, there clearly are positives in the bill, which we outlined in point form in our brief. These include the addition of the preamble setting out principles of labour relations in the public service; the establishment of a Public Service Labour Relations Board consisting of individuals who possess knowledge or experience in labour relations; the provision for compensation research; the expansion of the definition of employee; the mandatory consultation committees; and the preservation of the option of dispute resolution for an impasse in collective bargaining. They're listed on page 5 of our brief, and there's an additional comment on page 6.

    Overall, the bill seeks to amend fairly complex and very technical legislation. At almost 300 pages, it's a very big piece of legislation. There's an awful lot of detail remaining to be worked out.

    As enabling legislation, I believe it provides a good framework for improvements in a number of areas, specifically the idea that processes in the workplace around employee-employer relations and labour relations can be co-developed. It is possible to sit down and have a coherent and intelligent conversation between managers and union representatives.

    However, we think there are enough deficiencies in the bill that they need to be addressed before the bill is implemented. But one way or another, we will work with the managers and with the legislation that Parliament decides is appropriate for the public service. We will not stop trying to seek improvements to it. When the legislation is subject to review in seven years, we will be back with a critique of how it has worked and where improvements need to be made.

    We think the opportunity to make improvements is there now and that the legislation, while making some improvements, doesn't go far enough in significant areas. We think that after more than 30 years of experience, the relationship of the public service, the managers, and the unions should be at a point where the employer can actually act like an employer, deal with the unions on issues of terms and conditions of employment through the collective bargaining process, and not have to rely on legislated authorities.

Á  (1140)  

    The Vice-Chair (Mr. Paul Forseth): We'll go to Mr. Mahoney.

    Mr. Steve Mahoney (Mississauga West, Lib.): Thanks, Mr. Chairman.

    Thank you very much.

    I'd like to go to your executive summary. I'm sorry I missed much of your presentation, but I've tried to catch up here. I just have some questions for clarification.

    As I'm reading this, in a situation where a decision is made to terminate an employee, are you suggesting that there be a third-party arbitration panel set up who would make the decision or ratify or overturn the decision of the manager, and that the third party would somehow be made up of people who would be determined by both labour and management?

    Mr. Steve Hindle: We're not suggesting that every decision will be subject to review. That should be a determination of the employee who is terminated, in consultation with their union. But we do believe that the scope of review, when it happens, should be appropriate and that the deputy minister needs to have terminated for just cause, and that the adjudicator making the decision needs to be able to validate that it was for just cause.

    Our feeling is that the scope right now is too narrow--was the deputy minister's decision reasonable--and it does not allow, in our opinion, an adjudicator to take a look at the whole issue and whether or not the deputy minister was apprised of all the circumstances related to the poor performance.

    In no way do we want to suggest that poor performers in the public service shouldn't be fired. It's not in the interest of the Professional Institute, and we recognize that it's not in the interest of the public service, to have people who cannot perform their duties continuing to work. However, we do need to ensure that employees in the public service have clear expectations of performance, that they're given the opportunity to show that they can perform the duties of the job, and that in those areas where there are deficiencies, steps are taken to ensure that the deficiencies are addressed. And it's only after a series of events such as this that the decision to terminate would be appropriate.

    It needs to be clear that there are times when an employee who's been a very satisfactory performer for 20 years can hit a rough spot. This could be for a number of reasons. It could be because of health, which he or she may not have disclosed to the employer. It could be a family situation, which again they are not required to disclose to their employer. But a number of such situations can affect the person's performance over a short period of time, and it's reasonable to expect that a manager could give an appraisal of the person's performance that says it's unsatisfactory. And it may clearly have been unsatisfactory for that period of time. But the review of the performance needs to take into consideration extenuating circumstances, and anybody charged with reviewing the decision to terminate employment should have a fairly wide scope in making that determination.

Á  (1145)  

    Mr. Steve Mahoney: It could be a bad back, which I'm undergoing at the moment.

    Mr. Steve Hindle: It is possible.

    Mr. Steve Mahoney: It is possible.

    You make the point here that without the discipline imposed by profitability it might be difficult to determine a measurement of what's acceptable in the public service. I've always thought that it becomes such a subjective thing and that it can come down to personality clashes and things of that nature that can cause the problem. So I think you've raised a very legitimate point.

    Let me throw a concern at you. You would be aware that workers' compensation systems were established across this country in an effort to take some of the arbitrary powers away and to provide compensation for people who are injured on the job and subsequently can't perform. One of the things they gave up as a result of signing on to a workers' compensation was the right to sue. I'm wondering if this is a bit of a slippery slope, because if wrongful dismissal is part of the issue, a manager is pretty much required today to keep a pretty good paper trail on anyone; they can't walk in and have a bad day and just fire somebody or they're going to wind up in court. They're going to wind having their management decisions challenged and possibly lose their own jobs if in fact they make a decision that cannot be justified.

    Is there a potential to supplant the rights of the worker to a day in court for wrongful dismissal with some kind of an arbitrary system set up through the CBA?

    Mr. Robert McIntosh: Our concern under proposed section 230 is that the scope of review is limited just to whether the deputy head was reasonable. Now, that could be simply that, yes, the deputy has received the performance appraisal and it includes in there that the person was unsatisfactory. Therefore, the adjudicator would then make the conclusion that the deputy head was reasonable in terminating his employment.

    So the scope of review under 230 is too narrow, is too limited. That's what our real concern is, and we think the adjudicator and the benefit of the public service, and the public, and so on are served when the adjudicator has the latitude to investigate why that performance was unsatisfactory, because the individual had a bad back, or whatever the circumstances were.

    So it's very important that we don't so narrow the area of review that we don't get a fair hearing and that people are out the door because at a given point in time they may have had unsatisfactory performance, but they may have had good service for 20 years.

    So our concern, then, is the scope of review. The amendment that we are proposing would give that latitude.

    Mr. Steve Mahoney: I understand that.

    My concern is, by broadening the mandate, do you run the risk of putting in jeopardy the legal rights of the individual? I'm concerned that the mandate gets so broad and the arbitrator goes into so much of the detail that it then becomes the evidence, and the arbitrator finds, for example, with this broadened scope that the manager did act appropriately and upholds the ruling. That's going to run pretty detrimental against the individual going to the next step, which is to sue for wrongful dismissal.

    Mr. Steve Hindle: That's right.

    Mr. Steve Mahoney: And that's all I'm saying: is there a risk of putting at risk the legal rights of the employees here?

Á  (1150)  

    Mr. Steve Hindle: Public service employees have a system for reviewing terminations right now, and that does not include suing for wrongful dismissal. So they're not losing anything through our proposal. What we are suggesting is that the adjudicator continue to have the full scope of review of the decision that currently exists.

    Mr. Steve Mahoney: Finally, if I might, reading from you're brief I note that you are suggesting the criteria established under paragraph 30(2)(b) be accessible to employees, and their representatives, and the public, in advance of any appointments, and yet you have said you are not looking to co-manage the public service. Are those not contradictory statements?

    Mr. Steve Hindle: No, they're not.

    We think it's important for the criteria to be visible and known. We are not suggesting that we have any part to play in establishing what the criteria are, but they should be known. It's similar to entering a contest. You want to know the rules going into the contest, and it's only fair that everybody know the rules and that the person running the contest has to follow the rules.

    So what we're suggesting is to tell people up front how you are going to assess them, what you are looking for, and then judge them based on that and not something that is not known to everybody who is interested in the job.

    Mr. Steve Mahoney: Thanks, Mr. Chair.

    The Vice-Chair (Mr. Paul Forseth): I have a couple of questions. Your recommendation number 13 talks about the Canada School for Public Service, CSPS governors, and you suggest that we should delete reference to the president of the Public Service Commission.

    What do you foresee as the problem here? Could you expand on that point?

    Mr. Steve Hindle: We have long held the view that the public service commissioners hold themselves out as independent of those for whom they are the arbiters, the rest of the public service.

    Putting the president of the Public Service Commission on the board of governors of the Canada School of Public Service continues to reinforce our view that these people are not independent. They are of the deputy community. They are from the deputy minister community, and they continue to exist in the deputy minister community. If there is any hope of putting the Public Service Commission in a position where it can truly be independent, then it needs to be quite clear that it truly is independent and the person at the head of it is independent.

    There are examples in the past of people having held the position of the secretary of the Treasury Board, deputy minister of a government department, and then subsequently president of the Public Service Commission. Quite clearly, these people are connected in the community. They are peers of the other deputy heads, and every step possible should be taken to ensure that there is some independence from the senior people over whom they have some authority and over whom they have some responsibility in terms of reviewing staffing processes and staffing decisions.

    The Vice-Chair (Mr. Paul Forseth): If that's the case, why would the bill be structured this way? What is the advantage from the philosophy that the bill has put? What is it trying to accomplish?

    Mr. Steve Hindle: As I understand it, the president of the Public Service Commission sits on the board of directors of the Canadian Centre for Management Development. The Canadian Centre for Management Development is being changed to the Canada School of Public Service, and it's just a continuation of the idea of who sits on the board of directors.

    There is no true independence for the Public Service Commission.

    The Vice-Chair (Mr. Paul Forseth): Switching topics, on page 33 of your submission you say:

The Public Service Commission should retain the right to investigate complaints arising from the conversion of terms to indeterminate status which allege abuse of authority.

Then you make a recommendation.

    How could problems develop here? What are you foreseeing in your crystal ball when you're looking at the way this is drafted? Maybe you can expand on this recommendation and explain what's behind the lines here.

    Mr. Steve Hindle: At the risk of being called a fearmonger, my members are concerned that public service managers find it much easier to get authority to hire term employees. There is also provision under regulation for term employees to be converted to indeterminate status. So I'll paint you a scenario.

    A number of engineers are working in an office and they're working at level four. The manager wants an engineer at level five but knows that he doesn't really want one of the people who is a currently an engineer four. So he creates a six-month term position for an engineer at level five.

    The engineers at level four are not interested in working for a six-month term and jeopardizing their indeterminate status. They don't apply for the job at level five. The manager then, through whatever means are available, extends the term of the term employee to the point where the engineer level five position goes from being a term position to an indeterminate position.

    There is no recourse for anybody at level four who might have been interested in an indeterminate level five job to challenge the conversion of that position from a term to an indeterminate. Their recourse is at the outset, when the term position is staffed the first time, probably two and a half years prior to their realizing that the job is now permanent, an indeterminate job.

    Our concern is that there is no mechanism to review the conversion of that term position to indeterminate if the people we represent wish to allege that it's an abuse of authority.

Á  (1155)  

    The Vice-Chair (Mr. Paul Forseth): It's a very interesting scenario. Do we have some case evidence about that? Do we have some actual experience rather than that it's just a possibility in theory?

    Mr. Steve Hindle: What we have is a substantial number of term positions in the public service that started out quite legitimately as terms, six months to a year, that have gone on for much longer, in some cases seven or eight years. And with the suspension of the rule that after five years terms would become indeterminate, it's quite possible to find people who have been in term positions for more than seven years.

    We don't have members who are saying that it was an abuse at the outset, but they do say that the term positions extended far beyond the original view of how long the position would be needed. They are concerned that if this provision goes the way it is, managers will start to realize that there is a way around the system or that it just opens up another area where the manager's decision in the end is not subject to review.

    I believe that a substantial number of my members would say that as long as they have the opportunity to have the review on conversion from term to indeterminate there will not be a problem, it will not be abused, because the manager will know that it is subject to review later on.

    In a lot of ways, our recommendation is to prevent the appearance of abuse in the future and to prevent actual abuse in the future.

    The Vice-Chair (Mr. Paul Forseth): Thank you. I think you've pointed out a very important point.

    I take it Mr. Lanctôt has a further question.

[Translation]

    Mr. Robert Lanctôt: After reading your brief, I have a better understanding of your response. I was under the impression that you were saying the opposite of what I thought you should be saying, but it comes down to the same... You are amending section 30, in part 2, by adding subsection (4), which clarifies your thinking on this. Section 30 had to be changed because it provided senior management with a great deal of discretion. That is what I meant earlier.

    I have one other point. With respect to the wording of your new subsection (4), I was wondering why you wouldn't specify “shall be determined from time to time, in consultation with union representatives, or in the collective bargaining process.” Subsection 29(3) states:

(3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.

    The commission would be delegating its authority to the manager, but it would have the last word. So, you might end up with the manager being authorized to determine the criteria from time to time on his own, rather than having the criteria be part of the collective bargaining process. Would it not be preferable to specify in your subsection (4) that this should be done on the basis of consultations between the employer and yourselves? This would add a clarification which I feel is needed because it would be specified that you would have to be consulted from time to time. Of course, the criteria would vary depending on whether you're dealing with professionals or another class of employees, but it should at least be specified that you would be involved. I feel that there is a risk with section 29. The addition you are suggesting to section 30 would make it more precise, but if that particular provision were made even more specific, I think that that would make it a lot clearer. Would you have a comment?

[English]

    Mr. Steve Hindle: I appreciate the comment. We truly do not want to co-manage the public service. We are not in the position of determining what criteria are important for a specific job. It truly is the responsibility of other people, mainly the managers, the directors, the directors-general.

    If they wish to talk to their employees about the functions of the job and what might be needed, they can do that, but in no way do we want to suggest that we get to decide or that we have a role in agreeing to whether or not a job needs a bachelor's degree or a master's degree, or five years of experience working in isolated posts, or whatever other criteria the manager may want to establish.

    In some cases we may want to challenge why they put that criterion on. We'd just as soon not be part of determining what the criteria are. But we do think it's important that once they are established--and they need to be established prior to the appointment--they need to be made clear to everybody who's interested in the job.

    A number of our members do help manage the public service. They are in management positions, and they are members of the union, so they do have some influence in that regard. But as for putting that in the legislation, to introduce the idea that we're co-managing--because really that's what we would be doing--we don't want to go there. We have enough to deal with in terms of representing our members and ensuring that their rights are respected, without getting into, admittedly, the headaches of being a manager in the public service. It's a thankless job. The vast majority of managers do it very well, and they are respectful of their employees and their employees' needs. However, we don't want those headaches. We'll leave them to the managers.

    Thank you.

  (1200)  

[Translation]

    Mr. Robert Lanctôt: That makes your thinking a lot clearer.

    We have also heard that there is no protection whatsoever for whistle-blowers in the bill. Is that something you would like to suggest? Do you feel that it would be better if this were included in the legislation, or not? The minister has told us that she would prefer the administrative route. But we know that if it's not in the legislation, there is no obligation to protect these individuals. I would like to hear what you have to say about that. Should we be amending the legislation in order to include some protection for whistle-blowers?

[English]

    Mr. Steve Hindle: I certainly respect the minister's position on this, and I've had more than one discussion with her about it. The Professional Institute is on record as stating that public service employees should have legislated protection when they blow the whistle on wrongdoing in the federal public service. We have made presentations to parliamentary committees in the past on that subject.

    We haven't addressed it in this bill, partly because we knew that somebody else was going to bring it up, but also because I do tend to agree with the minister that having put in place certain procedures in the public service, we need some time to determine whether or not they're going to achieve the purpose for which they're set out. I think a possible compromise is a reference in the legislation to the employer being required to establish procedures to protect people who blow the whistle or who bring forth publicly instances of wrongdoing in good faith.

    The Public Service Modernization Act is designed to deal with an awful lot of technical aspects in terms of collective bargaining, staffing processes, etc. I think that protection for people who identify wrongdoing is appropriately done in a separate piece of legislation.

    Right now I'm not trying to get it in this legislation so much as I'm willing to wait for the public service integrity officer and the policy on wrongdoing in the workplace to be given an adequate chance to show that either it can do the job or it cannot adequately meet the needs of the public service. I'm encouraging my members to use the processes that have been put in place. I'm trying to help with the public service integrity officer's publicity or recognition and to encourage people to learn more about it.

    I don't see it as essential for this piece of legislation. At the same time, we do think public service employees do need legislated protection.

  (1205)  

    The Vice-Chair (Mr. Paul Forseth): Thank you.

    We will now go to Tony Tirabassi.

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

    I'm going to turn to page 29 of your report, item two, mobility. It's one thing to attract qualified people to an organization. The promise of advancement, trust within the organization, and moving people up from within are attractions that will determine whether or not they stay with you. I'm just wondering if you could comment on the whole issue of mobility. You feel that there has been an omission in Bill C-25. I would ask you to speak to that, please.

    Mr. Steve Hindle: The current provisions of the Public Service Employment Act make it clear that the first look at filling a position should be inside the public service. The public service is a very large workplace. It has a large and diverse workforce. There should be ample opportunities for finding people who can be promoted from within. It should be exceptional or specific circumstances where the public service seeks to hire from outside.

    At the same time, we do recognize the advantage of having a mixture of people with experience from outside and inside. We actually have a recommendation on the agencies and the separate employers. It should be a two-way street in terms of having access to jobs in various parts of the much broader public sector.

    But we think it needs to be clear to public service managers that when they're first looking to fill a position inside the public service, they should look inside the public service. As you stated, it does provide some assurance for those who are entering that there is a career path, that the opportunities for advancement will be there. They may not achieve the goal they have when they get in, but at least they'll have an understanding that the opportunities will be made available.

    The Vice-Chair (Mr. Paul Forseth): We'll go to Mr. Mahoney again.

    Mr. Steve Mahoney: I want to go back to the issue of co-management--or maybe more influence in some of the decisions is a more appropriate way of putting it.

    I find your brief interesting because in many ways it's very positive. On page five you outline the positives. They're quite substantial. Obviously you're happy with those changes.

    But then I read things such as “Justification for the continuation of the current limited scope of collective bargaining appears based on a premise that deputy heads have a greater custodial role”, or perhaps obligation, in terms of their own job description. We could probably debate that issue.

    In spite of the many positives, there's a very strong concern about the language more than anything else. I wonder if that's what we're really talking about here. Is it just language, as opposed to the obligations and the job descriptions?

    Mr. Steve Hindle: Well, language is very important for identifying what the reality is.

    We do believe that the deputy ministers do have responsibility, certainly, but they are not the custodians of the public interest. If anybody is, it is the members of Parliament who determine what the public interest is, but only by extension of their listening to the public.

    Deputy ministers, just because they are deputy ministers, don't have any more say on what the public interest should be or how to carry it out. They have influence with members of Parliament, certainly, and they have a role to play in terms of providing advice. But so does the average Canadian, and perhaps the deputy minister's advice weighs more than, well, even mine would, although I'm always willing to provide advice.

    I think it needs to made clear that the deputy minister's role is to carry out the will of Parliament and their cabinet minister and that they are not the ones who get to determine what the public interest is. They get to carry out the will of the government in meeting the public interest, and that needs to be clarified. The language around the role of the deputy minister does provide them more authority or, perhaps, less review of how they exercise their authority than is appropriate for the public service.

  (1210)  

    Mr. Steve Mahoney: I hear you recognizing their responsibilities and I'm concerned. Now, you're quite right that the ultimate custodians of the public interest are the members of Parliament, but for us to say that we make a decision on a particular issue by listening to the public, particularly something as technical and complex as this, well, I can assure you I haven't had any calls in my constituency from the public saying they don't like Bill C-25. I have had lots on Bill C-22 and I have had lots on the war in Iraq, etc.

    It's always very difficult for an elected official to make a decision legitimately based on the feelings of the public because, you know, this is Canada. It's an impossible country to govern, and for every opinion there are 12 others. Presumably, we get elected because we have enough grey matter to come here and do what we think is right in balancing all the different issues.

    My concern is with your statement that the managers are to carry out the will of the elected representatives and that this is what this legislation is all about. My concern is that we might find ourselves micromanaging this thing. When I get phone calls during labour disputes from union members wherever....

    You can appreciate that during problems with Air Canada and Canadian Airlines, our phones and e-mails were going constantly with problems; they wanted us to wade in, roll up our sleeves, and solve the problem. That's not practical, and in fact it's dangerous because, with all due respect, many of my colleagues come from different walks of life and, like me, might not be qualified to get in and resolve those problems.

    I'll close this non-question by saying, don't you agree with me in terms of how much micromanaging members of Parliament should do in relation to a bill like this?

    Mr. Steve Hindle: I'd have to agree that you'd want to stay out of the details. To that end, I would reinforce that your role includes ensuring that the legislation allows for appropriate processes to be in place to have those issues dealt with so you don't have to get involved with the details.

    In the case of a strike, you need to ensure the legislation governing that particular jurisdiction provides the parties with a mechanism for resolving their dispute. There are occasions when the best way to resolve the dispute is to let the strike continue.

    Don't interfere on behalf of the employer. Don't interfere on behalf of the employees. They have a relationship, and it's up to them as the parties to that relationship to work at making sure they can continue to deal with each other.

    Strikes are not popular items, and I've yet to meet anybody who actually wanted a collective bargaining round to end in a strike. There are very serious decisions on both sides--and I've been on both sides--that go into getting to a point where there's a requirement, from the view of the employees, to withdraw services.

    But you have to allow the processes to work, and I think it's important for members of Parliament to ensure the legislation contains processes that allow for the expression of the public interest, that allow for a check on the power of the government, from executive authority, in making decisions, and you can't allow them to go without being challenged.

    There are mechanisms, whether through the courts, through a labour relations board, or through legislation outlining the rules around collective bargaining. The role of parliamentarians includes ensuring that those mechanisms are in place, that they're robust and meet the needs of the parties to whom they apply.

    The Vice-Chair (Mr. Paul Forseth): We would like to wrap this up, but I would just give one last chance.

    Does anyone have a final question? If not, witnesses, understand that we're going to adjourn.

  (1215)  

    Mr. Steve Hindle: Just in closing, I'll reiterate my thanks for the opportunity to be here to address the issues. If you have additional questions, either as a committee or as individuals, please feel free to get in touch with us. We can provide additional information or explanation for any of the 14 recommendations in our brief.

    As I like to say when I meet people, we're from the union. We're here to help. And it's true, we are trying to help. We will work with the managers in the public service and we will work with the legislation that Parliament deems appropriate to govern the relationship, and we will make the public service a better place than it is already for our members.

    Thank you very much, Mr. Chairman.

    Mr. Steve Mahoney: That's our line. We're from the government. We're here to help you. You can trust us.

    Mr. Steve Hindle: That would be you. These gentlemen are from Parliament. They're here to help.

    A voice: There you go.

    An voice: That's the part where Mr. Mahoney talks about being dangerous.

    The Vice-Chair (Mr. Paul Forseth): Okay, we'll conclude our session with that.

    We are going to adjourn until one o'clock, when the Office of the Information Commissioner will be here.