HIGHLIGHTS OF PROPOSED FEDERAL “PUBLIC SERVICE MODERNIZATION ACT”
The federal government has tabled Bill C-25, intended to update the Public Service Staff Relations Act (the CECBA equivalent) and the Public Service Employment Act (the Public Service Act equivalent). The highlights of the proposed bill are as follows.
Picking Interest Arbitration or Right to Strike:
A Union can pick either interest arbitration or a strike. The choice has to be made before giving notice to bargain (Section 103).
Interest Arbitration:
If interest arbitration is selected, the interest arbitrator is picked by the parties, or if they fail to agree, by the new Public Service Labour Relations Board.
The interest arbitrator cannot alter terms of employment in a way that would:
1) require legislation;
2) change legislation;
3) deal with “appointment, appraisal, promotion, deployment, rejection on probation or layoff”;
4) “affect the organization of the public service or the assignment of duties or classification”.
Strike:
If the Union picks a strike, then there are two prerequisites to getting into a legal strike position.
The first is essential services. The employer determines the level of essential services. Employees are to do their whole job. The only dispute is the number of employees required. That number is to be set without regard to the availability of any other persons including managers to do the work (Section 120, 121(2)). The
Collective Agreement applies to essential services employees (Section 132).
The second prerequisite to striking is to go through conciliation (Section 160). Conciliation includes the establishment of a “Public Interest Commission” (Conciliation Board) which holds mini-hearings and issues full recommendations about the appropriate settlement (Section 162).
During the conciliation process, the parties can agree to interest arbitration on any and all items including having the Public Interest Commission do the interest arbitration.
Successorship:
On successorship, the legislation does provide for successorship when there are transfers of work from “core public administration” to government agencies (Section 81).
Grievances: Union and Individual:
Individuals can grieve statutory breaches and breaches of the collective agreement. (Section 208). To grieve the Collective Agreement, they need the “approval of and are represented by the bargaining agent” (Section 208(4)). They do not need union approval to grieve discipline resulting in termination, demotion, suspension
or financial penalty (Section 209(b)). But, grievances against termination or demotion will only permit the adjudicator to examine the reasonableness of the deputy head’s opinion of unsatisfactory performance and not allow the substitution of the adjudicator’s own opinion.
For group grievances, the union needs the consent of individual employees (Section 215(2)). For policy grievances, the Union does not need the consent of individual employees but the remedy is limited to declarations and forward looking orders (Section 220 and 232). The consequence is that individuals will only receive
compensation for past wrongs if they are prepared to individually grieve.
The Chair of the new Public Service Labour Relations Board will be a government appointee but the other parties to the Board will be “from among eligible persons proposed by the Chair after consultation with the employer and bargaining agents” (Section 18). The terms of the adjudicators on the Public Service Staff Relations
Board shall be not more than five years (Section 22(2)).
Rights Arbitration:
For rights arbitrations, the choice of arbitrator is left up to the parties but, if they can’t agree, the Public Service Labour Relations Board hears the case or appoints someone to do so (Section 223).
Arbitrators retain the right to deal with human rights issues, but, if they do so, the Human Rights Commission gets standing at the arbitration (Section 210).
The statute clarifies that there is no right to bring a lawsuit about things that you can grieve (Section 236).
Appointments and Layoffs:
A Public Service Commission is maintained to deal with appointments and political activity issues (Section 11). It is a stated principle that appointments are to be “on merit” and free from political influence (Section 30). However, it is further statutorily clarified that the Public Service Commission need not consider
more than one person (Section 30(4)), need not advertise (Section 33), can use any assessment method (Section 36) and that its decision is final (Section 49).
Concerning layoffs, they must be for “lack of work, discontinuance of a function, or transfer of work or function outside the public service” (Section 64). Where some but not all of the employees in a part of an organization are laid off, an “abuse of authority” claim can be brought to challenge who was selected for layoff.
All disputes dealing with the making of appointments and layoffs or the revocation of appointments are dealt with by a new separate Public Service Staffing Tribunal. The allegation of “abuse of authority” is the basis of challenging the appointment process.
Political Activity:
Public servants “can engage in any political activity so long as it does not impair, or is perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner”. Regulations can deem what activities do impair.
The employer retains the right to grant discretionary leave to permit people to run for office (Section 113-114).
Further details are available on the federal Treasury Board website.
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