Public Service Modernization

Background information

BY FAX - 990-1849

September 15, 2000

John Fryer
Chair, Advisory Committee on
Labour Management Relations
P.O. Box 1525, Station B
Ottawa, Ontario
K1P 5V2

Dear Mr. Fryer :

I should, first of all, like to thank you and other members of the Advisory Committee for inviting us to appear before you on August 30, 2000 as you embark on the phase of the project where recommendations will be drafted.

As you are aware, the August 30^th session represents the third time that the PSAC has had an opportunity to appear before members of the Advisory Committee and address some of the deep-seated frustration that we, and our membership employed by the federal government, have faced over the past two decades. Frustration that is seated in a bargaining structure, and legislative framework that is antiquated and biased in favour of the employer.

Your willingness to consult, and broadly explore the issues and possible solutions is appreciated, and it is my hope that you will continue to touch base with us as the options for change are tightened and the recommendations that you are contemplating become clearer and more precise.

When we appeared before the Advisory Committee on August 30, 2000, we had a prepared statement that addressed some of the issues that we considered to be important. As invariably happens in processes of this kind, the interchange during the question and answer session moved us into different areas and what may be characterized as uncharted waters. Since some of these issues are likely to be addressed again, and with other players during your future deliberations, I believe that it is essential that the Alliance clearly state where it stands.

When it comes to reforming the legislative framework for collective bargaining in the federal public sector, the PSAC takes the position that the first priority is two-fold. That is, we believe that a redefined and refocused legislative framework must provide some power balance between the employer and the unions representing federal public sector workers, and simultaneously eliminate the roadblocks to an effective, timely and comprehensive approach to bargaining.

Hence, unless you do something of substance to restrict the governmental employer’s ability to legislatively change the rules when it cannot get its way at the bargaining table, the frustration, anger and hostility, currently evident in the process, will continue.

It is equally true that the process as defined under the Public Service Staff Relations Act, as currently constructed, is simply too slow. In short, there are too many steps that must be completed before a bargaining group can exercise its right to strike. Added to the time delay built into the system by virtue of the legislative framework is the fact that the administrative process as defined by the Public Service Staff Relations Board—and particularly the insufficient resources that it makes available to the process—delay bargaining still further.

So, we should make it absolutely clear to the Advisory Committee that the PSAC will not support any recommendations that you might ultimately make that extends the existing time frame, and would strongly recommend that you fashion a process that allows the parties to negotiate and reach a defining moment in the process within six months of the expiry of an existing collective agreement.

As a first step, this would require a serious effort to streamline the designation/essential services situation, so that it never again delays the establishment of a conciliation board, and more importantly, render strike activity ineffective.

We also take the position that the integrity of our bargaining units must remain intact under any revised legislative bargaining framework, and that they continue to have the right to individually negotiate all issues that form part of their respective collective agreements. While arguments may well be advanced that the implementation of UCS will result in a situation where the employer is intent on negotiating base wage rate increases—e.g. general economic increases—that are common across the public sector, ultimately bargaining units must remain autonomous under any revised labour code that you recommend.

As you are aware, the PSAC currently bargains with the Treasury Board at five Tables that, in most cases, consolidate a number of diverse occupations under one collective agreement. From our experience, each of these five Tables have different perspectives on a number of important issues, including wage rates and how salary increases should be structured. That is not only their prerogative under the existing legislation, and just about all labour legislation that I have reviewed, but it is reasonable, logical and appropriate.

So, for example, the Correctional Officer group with an identified comparator group, namely the RCMP, has a bargaining agenda and justification for a particular wage rate that is different from our Table 2 members where regional rates of pay and hours of work are the defining factor.

Since identifiable differences exist, we strongly believe that the bargaining relationship must continue to reflect and protect the autonomy of each group. Moreover, as I am sure you appreciate, the identifiable differences between groups within one union are even more pronounced across the public sector as a whole. Different cultures and approaches to bargaining exist and will continue to exist, and it is inconceivable that any bargaining structure that tries to address federal bargaining as a homogeneous mass will work.

This doesn’t mean that bargaining cannot and should not be coordinated. It is evident to everyone that Treasury Board attempts to coordinate bargaining for all groups represented by various unions, as it is its prerogative. It is equally true that the PSAC, and we suspect other federal public sector unions and associations do likewise. For example, the PSAC is just completing a National Bargaining Conference for our members represented at Tables 1, 2, 3 and 5. While these Tables meet individually in caucus to address their specific demands, including how a wage increase is to be structured, they also meet in plenary to address the context of bargaining in both a political and economic sense. But, and it’s a very big but, ultimately each Table has its own mandate, and has the authority to determine how it will bargain each and every issue.

During the last round, our five Treasury Board Tables established a Technical Team consisting of representatives from each Table to negotiate workforce adjustment and address pension and health care issues. They have reaffirmed the Technical Team for this round of bargaining, and will, in all probability, address UCS, workforce adjustment, and perhaps other issues, in that forum.

As a former union negotiator, I need not remind you that decisions to bargain in coalitions or to bargain issues across group lines are the prerogative of the employer and the bargaining agents, and cannot, and must not, be imposed by legislative fiat.

Let me turn now to the National Joint Council and its role in the bargaining process.

While the National Joint Council has and continues to address issues that are common across the public service, the participation of any one union on any NJC issue is the prerogative of the individual union. The PSAC, for example, has opted out of the NJC’s workforce adjustment directive, and has negotiated a separate workforce adjustment appendix to PSAC collective agreements. While the NJC directive and the PSAC appendix are essentially the same, the PSAC appendix has the advantage of being applied to the majority of our members, whether they are a part of the NJC or not. We have withdrawn from the NJC on other issues, notably the dental plan, in the past and may well do so again when it is in the best interests of our members to do so.

Hence, while we have absolutely no objection to participating in a process that will strengthen the NJC, we have no interest in a process that binds our members to the NJC in perpetuity and on all issues. Moreover, while the NJC process can and has worked to the common advantage of both federal bargaining agents and the federal employer, it is a process that limits membership involvement in what are often important issues for all members. That being the case, the membership of any federal bargaining group must continue to have the right to opt out of an NJC process when they believe that it is in their best interest to do so.

In this elaboration of principles that the PSAC believes your Committee should recommend, we are unequivocal in our belief that all issues that can be incorporated into a collective agreement—and there should be more of them—remain the prerogative of the individual bargaining group and union. Hence, while we may choose to allow an issue to be addressed at the NJC table, that decision is ours and ours alone to make.

I also want to make it clear that the bargaining relationship is properly defined in most labour legislation, and clearly identifies the employer and the bargaining agent by way of a legal certification. In the case of the federal public sector, Treasury Board and not individual departments enjoy the formal identification as the employer. Despite this, Treasury Board is not responsible for the day-to-day operation of departments, and has demonstrated on many occasions an ignorance of why bargaining demands are presented and why their implementation is in the best interest of both the employer (at the departmental level) and federal workers. In the light of this reality, it has been argued in the past that departments assume a greater role in the bargaining process. While the PSAC would welcome a situation where Treasury Board listens to and constructs its mandate in consultation with departments, we are adamantly opposed to any bargaining system that transfers direct responsibility for bargaining to departments.

At the same time and for the same reason, however, we believe that Treasury Board must be removed from the equation where agencies have the legal responsibility of employer. As is currently the case, we have a legal right and obligation to negotiate with separately-mandated agencies such as the Canadian Food Inspection Agency and the Canada Customs and Revenue Agency. Yet, while we can bargain with these Agencies, and while they are the employer, Treasury Board has the ultimate power to refuse to sign or sanction a collective agreement. This has had and continues to have an exceedingly negative impact on the bargaining process for federal agencies, and undermines the ability of both management and unions to craft collective agreements and working conditions that reflect the specific reality of the agency workplaces.

Before closing, I should like to comment on the costs associated with an employer-union relationship, and the perception in some quarters that the current situation with regard to adjudication under the PSSRB is inequitable. While a case may well be made to you that unions at the federal level should assume some of the costs of the Public Service Staff Relations Board associated with these processes, costs are only one aspect that must be considered.

As you are aware, the PSAC’s historic position is that federal public sector workers should be covered under the Canada Labour Code. If that were your recommendation, the question of costs would be resolved. If on the other hand you choose to recommend a reformed Public Service Staff Relations Act, and include the cost arrangement that exists under the Canada Labour Code, you will be recommending the creation of the worst of both worlds.

For the record, the PSAC does not pursue frivolous cases or cases without merit to the PSSRB. Moreover, while under the current structure the services of the PSSRB and its adjudicators come at no cost to the Union, we still assume responsibility for significant and substantial costs in terms of salary, overtime, travel and accommodation. The PSAC takes the position that if we, and other federal public sector unions, are to assume some of the costs of the PSSRB process and its adjudicators, we must have a substantial role to play in the process. In fact, we would demand that we have more control over the appointment of adjudicators and complete control over scheduling. Moreover, we would insist that people named to the Board be representative of both parties, as they are at the Canadian Industrial Relations Board. That is to say, equal numbers of representatives from both sides would have to be chosen and appointed.

One final comment with regard to the Board’s mandate is required. The PSAC believes that the range of issues that can be addressed at the final level needs to be expanded. From our perspective, the Act should be changed to make classification and human rights grievances arbitrable as they presently are under the Canada Labour Code.

The issues identified in this letter, coupled with the observations I advanced on August 30^th, reflect what I see as the underlying principles for a reformed and restructured relationship at the federal level. That said, a huge array of specific questions and issues that are likely to influence your final recommendations have not been addressed by us in a substantive way. As a result, and as I have indicated before, we would be pleased to appear before you again or communicate in writing on issues as they are addressed by your Committee.

Sincerely,

Nycole Turmel
National President