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June 13, 2001 On behalf of its 50,000 members employed in the Ontario Public Service ("OPS"), the Ontario Public Service Employees’ Union ("OPSEU") has the following submissions concerning the Public Service Statute Law Amendment Act ("Bill 25"). 1) Summary:There has been no real consultation with front-line public servants about Bill 25. The Bill takes the public service in the wrong direction – away from professionalism, accountability and impartiality – towards instability, blurred responsibility, politicization and secrecy. The Bill fragments public service bargaining units so that the Ontario Provincial Police can receive $1.4 million per year political payoff from their Tory friends. The Bill should be withdrawn and the government should concentrate on reforms that strengthen and revitalize the public service so that it is able to provide Ontarians with the public services they deserve. 2) Shortcomings in the Consultation Process: Public Service Act "reform" has been under active consideration for many, many months. Extensive consultation took place within government management. In sharp contrast, front line public servants were provided with one brief advance opportunity to comment on a pro-forma discussion paper. Then a finalized Bill 25 was disclosed to them at the same time that it was being given first reading. The only public hearing is one day with 10 minute deputations. There has been no effort to solicit public input. It appears that the government wishes to have no real dialogue about the future of the public service with either front line public servants, their representatives or the public. 3) The Fundamentals of the Public Service: An "impartial and effective public service" is "one of the most honourable traditions" of our public life": Fraser v. Canada (1989), 23 D.L.R. (4th) 122 (S.C.C.), at pp. 133-134. Public servants help Ministers make well informed decisions by giving them good advice. They do that in three ways. First, they have the knowledge, skills and expertise to generate the advice. Second, because they have the public interest at heart, they will generate that advice for the good of the public. (See A Strong Foundation, Federal Report of the Task Force on Public Service Values and Ethics, 1996, p. 32-33). Third, politicians will get honest advice in the public interest even if it is not what the government of the day wants to hear, i.e. public servants will "speak the truth to power". "It is the role of the public servant to inform ministers, as fully and accurately as possible, about the consequences of certain policy options, including, where necessary, warning about the negative or harmful consequences of actions or initiatives ministers propose to take." (Foundation, p. 49). Think of Walkerton. Impairment of this last function was highlighted in the 1998/99 Ombudsman’s report when she related the "atmosphere of fear" in the OPS where "senior officials are afraid to question the wisdom of the government’s approach for fear of…loss of reappointment". Whether one agrees with this assessment or not, it must surely be agreed that it is not in the interests of the public service for such concerns to be further fueled. Once the Minister has taken a well informed decision, based on public service advice, it is up to the public service to carry out that decision in the way determined by the government. In other words, public servants working directly for the Minister execute public policy in the public interest. That is skilled, difficult work requiring a high level of competence and commitment. In order to uphold this public service tradition, there are two crucial features that need to be maintained, those being – security of tenure and accountability. Both are threatened by the Public Service Act amendments. 4) Undermining the Stability of the Public Service: Staffing stability is crucial to the maintenance of a quality public service. There needs to be a bias in favour of employing public servants on a long term basis. "A professional public service should not be equated with permanence of employment. But neither is it consistent with the notion of employment as short-term or contingent". (Foundation, p. 23). There needs to be a critical mass of long term professionals who can develop the skills, expertise and knowledge and commitment needed to carry out the public interest. "Security of tenure enables the career public servant not only to establish and wield influence in the policy process, but also to continue to exercise such influence even if there is a change in the governing party. Long tenure in office enables public servants to acquire knowledge and experience, both in specific policy fields and in the political-administrative system within which policy decisions are made. (Blair and McLeod, The Canadian Political Tradition: Basic Readings, Nelson Canada, 1993 p. 465). The current Act provides a great deal of flexibility to the employer in the use of contract or un-classified employees. The employer can determine whether to appoint persons as short term contract public servants (unclassified). The employer has the jurisdiction to determine the number of renewals of unclassified contracts. Unclassified employees are initially employed for twelve or fewer months, but the employer has the option to employ them for longer on subsequent renewals: Public Service Act, ("PSA") s. 8(1). The government has taken advantage of that flexibility. The percentage of unclassified staff in the OPS is now 24.7 percent. The total OPS bargaining unit is 44,561, based on Management Board Secretariat ("MBS") information to the Union for purposes of dues deduction. 24.7% is 11,006 unclassified workers. One out of 4 public servants is a contract worker. This is far too high a percentage and the government should be moving towards less, not more contract workers. Notwithstanding the existing flexibility and the overly high percentage of unclassified staff, the government wants even more room to create longer term contract employees in two ways.
There are well known problems with staffing practices focussed on temporary rather than permanent employees. There is a lack of long term employee commitment to the workplace. There is no building up of the needed depth of knowledge and experience. Temporary workers can be systemically undercompensated. Permanent job status may be denied even when a permanent job of work is being done. OPSEU’s position is that, if the work is ongoing permanent work, then it should be staffed as an ongoing permanent job of work, namely a classified position. That supplies the incumbent with the security of tenure supportive of being an independent and impartial public servant committed to quality public service. Regular renewals of unclassified contracts result in a review of the nature of the work being done. They screen out bogus claims that work is temporary. Permanent jobs get recognized. If the length of contracts gets longer, there will be less scrutiny of the legitimacy of the staffing. The provisions undercutting the stability of the public service should be withdrawn. In the alternative the powers to appoint contract workers should be made subject to being exercised "in accordance with (the) regulations". That phrase should be inserted into Section 7.1 and 8(1) of the PSA, and then regulations passed to ensure that the power to use contract workers is only employed for true short term needs and not to undercut the stability of the public service. 5) Diluting the Accountability of the Public Service: "Ministerial accountability involves the daily provision of information and explanations to parliament and to the public about the activities of the Minister’s department and conversely a daily sensitization of the department to the views and concerns of parliament and the people. It involves day to day direction of departments and the correction of problems that may arise". (Foundation, p. 11). That principle is upheld by having the Minister run a department through the Deputy Minister who is responsible for the actions of the public servants in the given Ministry. That principle of ministerial accountability is confused and diluted where Deputy Ministers are no longer responsible for directly supervising the public servants in their ministry. Under the PSA, the Deputy Minister has the power to hire, fire, promote, discipline, transfer, etc. Previously, the Deputy Minister could only delegate those powers to public servants in his own Ministry (PSA, s. 23). Now, the Deputy Minister will be able to delegate those powers to public servants in any Ministry or to any member of the public. (Bill 25, s. 5). Public servants in one Ministry may have to report to Human Resources Managers in another Ministry or to private sector managers. This undercuts the principle of ministerial accountability for public service operations and exposes public servants to working for employers outside their home Ministry or in the private sector. The purpose of these provisions appears to be to facilitate the blurring of lines of responsibility within the public service, and the transfer of functions to the private sector. This is an approach that has every prospect of compromising the independence of the public service. Public servants would be subject to management by persons who are not public servants and who do not share an institutional commitment to the independence and integrity of the public service. Private sector managers with profit motives cannot be relied on to have the principles of the public service first in their minds. The provisions of Bill 25 that dilute accountability should be withdrawn. In the alternative, OPSEU suggests that the power to remove a civil servant from employment under the PSA, s. 22 should not be delegated to another person or persons. Similarly, OPSEU suggests that the powers to recruit persons to the civil service, to appoint them to the civil service and to classify them in the civil service should all be powers that cannot be delegated to the private sector. The necessary changes would involve rewording Bill 25 s. 23(1) as follows: ",with the consent of his or her Minister, a Deputy Minister may delegate in writing any of his or her powers under this Act to a public servant, a class of public servant or, with the Commission’s approval, may delegate in writing any of his or her powers under this Act, other than powers under Section 22, to another person or persons." Similarly, the proposed s. 24(2)(c) would simply be deleted. 6) Paying off the Ontario Provincial Police and Fragmenting the Public Service Bargaining Unit: Sections 7 to 12 of Bill 25 allow the Ontario Provincial Police Association, which currently acts as the bargaining agent for police officers in the OPP, to become the certified bargaining agent for civilian employees working within the Ontario Provincial Police. Those employees are currently part of larger OPSEU bargaining units, but they will be subject to being "carved out" by an OPPA application for certification to the Ontario Labour Relations Board during the last three months of the current OPSEU collective agreement. This is special treatment for the OPPA. Normally where a union wishes to displace another union, two conditions apply:
The OPPA is being given a special opportunity not available to any other union to carve out a portion of an OPSEU bargaining unit. OPP Civilians will continue to be employed by Management Board Secretariat in the Ontario Public Service. The persons in these positions are clerks, secretaries, dispatchers, maintenance personnel, etc. They will continue to do similar work to that performed by many other people in Ontario Public Service. Fragmenting OPS bargaining has long been thought to be a bad idea. In 1969, Judge Walter Little issued a report on "Collective Bargaining in the Ontario Government Service". It formed the basis of the current Crown Employees Collective Bargaining Act. At page 28, he deals with the determination of appropriate bargaining units. He states amongst other things that "there has been a long standing practice of the government of treating all employees alike with respect to the general terms and conditions of employment….Furthermore, in my view, the public interest is being served if the public service is not fragmented by the introduction of new units which would give rise to multiple bargaining, where the need is not apparent." It has been argued this is in aid of democracy for OPP civilians, but this ignores the fact that the situation is democratic now. Within their appropriate bargaining units, the OPP civilians (and other similar employees) can vote to stay in or leave OPSEU. So, what is motivating this change? The government says it is requests from OPP civilians. The government has not listened to any requests from front line staff about improvements to the public service, yet they listen to this request to fragment it. For what reason? The answer appears to be to pay off a political ally. Approximately 2,500 OPSEU members work with the OPP. At an average dues payment of $570 per year (X 2,500), these members represent approximately $1.4 million per year in dues revenue. This is revenue that the Tories wish to transfer to the OPP. The OPP openly supported the Conservatives in the 1999 election. The OPP has done the Harris government’s bidding on several occasions including clubbing OPSEU strikers at Queen’s Park in 1996 and dealing with native unrest at Ipperwash. It is pay-back time. 7) Undercutting Guaranteed Terms and Conditions of Employment for Public Servants: The regulations under the Public Service Act establish the terms and conditions of employment for public servants. Section 29(3) of the PSA states "any provision in the collective agreement that is in conflict with the provision of a regulation as it affects employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation". That means unions bargaining on behalf of unionized public servants can obtain better terms and conditions of employment than are contained in the regulation. However, the regulation still sets the floor, and it includes all of the normal kinds of employment standards benefits. These kinds of entitlements are important because only certain sections of the Employment Standards Act apply to the government. There are no minimum employment standards for public servants, outside the Public Service Act, concerning maximum hours of work (Part 4), the minimum wage (Part 5), overtime pay (Part 6), public holidays (Part 7), or vacation with pay (Part 8). For all of those issues, it is only the regulations under the Public Service Act and collective bargaining which protect public servants. Bill 25 s. 14(2) now provides that all these regulation powers can be carried out by authorizing a person to issue directives about the same matters. This will permit MBS to unilaterally issue directives dealing with the terms and conditions of employment currently covered by the Public Service Act regulations. MBS will now have the power to unilaterally alter those terms and conditions of employment without needing Cabinet approval. In addition, the "person" to whom this power can be delegated could also include a private sector manager. It has always been problematic that the Employment Standards Act is largely inapplicable to the Crown. Public servants have at least as much need for minimum employment standards as other employees. The government would surely acknowledge that. It could point to the minimum terms of employment set out in the Public Service Act regulations. That would now change. Under the current proposal, public servants would be a uniquely disadvantaged employee group in our society, the only group with no legislated minimum standards of employment. This kind of treatment is unjustifiable. 8) Threatening the Personal Privacy of Public Servants:The government is in the process of implementing an "integrated human resources program" for the Ontario Public Service. It will come to include all personal information, including medical records. Under the proposed Bill 25, s. 34, the "disclosure, collection and use of personal information about public servants for the purpose of providing" that program would be entirely authorized, without conditions. A non-public servant "engaged in providing" the program would be able to fully participate and gain access to all the information. These provisions should be withdrawn. In the alternative, privacy safeguards should be incorporated into the legislation and only public servants who take an oath of confidentiality under the Public Service Act s. 10(1) should be allowed access. The right of public servants to personal privacy should not be compromised. 9) The Right of Public Servants to Demonstrate They Were Wrongfully Convicted: Bill 25 states that criminal convictions of Crown employees will be conclusive evidence that the act in question was committed, (Bill 25, s. 15, s. 33). This provision was passed right in the middle of court litigation about what the effect of a criminal conviction should be. The Grievance Settlement Board held that an employee could argue the criminal conviction was wrong. The government judicially reviewed that decision and the Divisional Court upheld the government’s position, holding that a criminal conviction was conclusive proof. The Union appealed that decision to the Court of Appeal, and leave to appeal was granted. The Court of Appeal hearing in Queen v. OPSEU, Court of Appeal NO. M258/99 occurred on April 24, 2001 and judgement is still under reserve. So, the matter is still before the courts, who should be allowed to complete the process without being pre-empted by legislation. Public servants should be held to high standards, higher than many employees. At the same time, they should have the right to show they were wrongfully convicted. 10) Enact Whistleblowing Legislation: Whistleblowers protection legislation is contained in unproclaimed provisions of the Public Service Act. See Section 8.1(11) as enacted by 1993, C. 19, s. 1(2). The intention of those provisions is well summarized in the proposed s.28.11 which states: "the purposes of this part are to protect employees of the Ontario government from retaliation for disclosing allegations of serious government wrong-doing and to provide a means for making those allegations public." This legislation was passed by the Legislature but not put into effect. This legislation would serve the worthy purpose of protecting public servants who are fulfilling their independent role of serving the public and not just the political masters of the day. It is our submission that these provisions should be put into effect. 11) Conclusion:Bill 25 undermines the public service by:
Instead of proceeding with this legislation, the government should re-affirm the value of the public service and public servants, and concentrate on building the capacity of the public service to fulfill its traditional role of impartiality and effectively serving the public. Thank you for your attention to our submissions. Yours truly, Leah Casselman
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Ontario Public Service Employees Union, 100 Lesmill Rd. Toronto, ON M3B 3P8 (416) 443-8888 www.opseu.org |
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