Revised as reported by Standing Committee on Government Operations and Estimates to the House
Public Service Modernization Act (PSMA)
June 2003
Background
- The current HR management framework – over 35 years old - is outdated and tired
- More than 30 studies, conducted over 35 years, tell us incremental improvements are no longer sufficient
- Fundamental change to HR legislation is needed now to ensure that the public service can continue to deliver on the government's agenda
- Legislative reform is the key enabler leading to cultural change
HRM Critical Issues
- Shrinking and competitive labour market
- Demographics - both age and representativeness
- Need to ensure PS ability and capacity - "skills crunch"
- Public sector image - low interest in public sector employment
Objectives
Staffing, staffing recourse; labour relations; learning
- Preservation of a merit based, non-partisan public service
- More flexible, modern staffing regime that helps departments compete for skilled employees and achieve results for Canadians
- More cooperative working relationship with bargaining agents, supporting a healthy and productive workplace
- Integrated framework for public service learning to develop and retain employees
The HR Modernization Bill
- One Bill, comprising:
- Part 1: A new Public Service Labour Relations Act (PSLRA)
- Part 2: Amendments to the Financial Administration Act (FAA)
- Part 3: A new Public Service Employment Act (PSEA)
- Part 4: Amendments to the CCMD Act
- Part 5: Transitional Provisions
- Part 6: Consequential Amendments
- Part 7: Coordinating Amendments
- Part 8: Repeals
- Part 9: Coming into Force
Part 1: Labour Relations Act
Objectives
- Improve the Labour Management relationship
- Improve collective bargaining through enhanced mediation and conciliation
- Address key irritants in the present regime
- Enable effective conflict management
- Maintain the existing basic framework :
- Management rights
- Scope of bargaining
- Choice of interest dispute resolution process
- Independent Board administers the Act, including adjudication (rights redress) process
Structure
- Part 1: Labour Relations
- Division 1 - Employee Freedoms
- Division 2 - Management Rights
- Division 3 - Consultation Committees & Co-development
- Division 4 - Public Service Labour Relations Board
- Division 5 - Bargaining Rights
- Division 6 - Choice of process for Dispute Resolution
- Division 7 - Collective Bargaining & Collective Agreements
- Division 8 - Essential Services
- Division 9 - Arbitration
- Division 10 - Conciliation
- Division 11 - Strike Votes
- Division 12 - Unfair Labour Practices
- Division 13 - Complaints
- Division 14 - Prohibitions & Enforcement
- Part 2: Grievances
- Part 3: Occupational Health and Safety
- Part 4: General
Preamble
- The new PSLRA includes a preamble that underscores the value of cooperative labour relations and the primacy of the Public Interest
Consultation Committees and Co-development
- Mandatory: Deputy Heads, in consultation with bargaining agents, must establish a labour-management consultation committee for their department to discuss workplace issues, including harassment and the disclosure of wrongdoing
- Enabling: The employer/deputy heads may engage in co-development with bargaining agents, through the National Joint Council (NJC), or any other forum
- Co-development: "consultation between the parties on workplace issues and their participation in the identification of workplace problems and the development and analysis of solutions to those problems with a view to adopting mutually agreed to solutions"
Public Service Labour Relations Board
- Provide adjudication, mediation and compensation analysis and research services
- Adjudication: hearing labour relations and occupational safety and health matters and referring grievances to adjudication
- Mediation: help parties reach collective agreements, managing their relations under collective agreements and resolve grievances
- Compensation analysis and research: conduct compensation surveys, compile, analyze and make the information available to the parties and in specific circumstances to the public and conduct market-based compensation research
- PSLRB also provides secretariat to National Joint Council
- Knowledge of/or experience in labour relations needed to be eligible to be a member of the PSLRB
- Advisory Board appointed by responsible Minister to provide advice to Chairperson on compensation analysis and research services
Bargaining Rights/Choice of Process for Dispute Resolution
- Status quo on choice of process for dispute resolution and scope of collective bargaining
- Managerial and confidential exclusions
- DOJ lawyers and TBS employees – no longer automatically excluded
- Transitional provision for DOJ lawyers: to allow the PSLRB to determine any bargaining unit or any Bargaining agent as if it were a new application for certification
- When employee proposed for exclusion, employer will hold dues pending determination by the Board
Collective Bargaining and Collective Agreements
- Enabled: Two-tier bargaining by employer, deputy heads and bargaining agents
Essential Services
- Defined: "A service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public"
- Once a service is characterized as essential: the employer has the exclusive right to determine the level of service including the extent to which & the frequency the service is to be provided
- Essential Services Agreements (ESA)
- Defined: Agreements identifying the types and numbers of positions needed to provide essential services and identifying specific positions needed for that purpose
- May be amended from round to round of collective bargaining
- Emergency review or suspension of ESA by the Board
- Right to strike cannot be acquired until 30 days after ESA concluded or amended
Arbitration
- The factors to be considered by Arbitration Boards, include the need to:
- Attract and maintain competent persons
- Offer compensation compatible with the private sector
- Maintain appropriate relationships between classification levels
- Establish compensation in relation to the qualifications required, the responsibility assumed and the nature of the services rendered
- Take into account "The state of the Canadian economy and the Government of Canada's fiscal circumstances"
Conciliation
Public Interest Commission (PIC)
- Appointed on an ad hoc basis by the Minister, when recommended by the Chair, from a list agreed upon by the employer and bargaining agents
- PIC to consider the same factors in making its recommendations as an arbitration board considers in making an arbitral award
Strike Votes
- Mandatory: Secret strike ballot, as in the Canada Labour Code (CLC)
- All members of bargaining unit are able to vote
- Majority of vote cast needed to acquire the right to strike
- Declaration of strike must occur within 60 days of strike vote
Unfair Labour Practices and Complaints
- Definitions of unfair labour practices brought into line with the Canada Labour Code
- Added: A complaint mechanism relating to a breach of any of the obligations under the Act
Prohibitions and Enforcement
- Prohibitions on illegal strikes (status quo – revised wording)
- Enabled: Board can make declarations relating to illegal strikes in similar fashion as under the CLC
- New prohibition: impeding or preventing employees occupying essential positions from entering or leaving the workplace
Part 2: Grievances
- Mandatory: Deputy heads must create informal conflict management system and inform employees
- Discrimination Issues
- Grievances relating to discrimination allowed, other than pay equity
- When a grievance involves interpretation of the CHRA, the CHRC is entitled to notice and has standing to make submissions
- Adjudicator may interpret and apply the CHRA (except pay equity) and give compensation
- New: Introduce two new classes for grievances
- Group: restricted to collective agreement interpretation or application
- Policy: employer or bargaining agent may seek a declaration on the correct interpretation or application of a collective agreement or arbitral award
Part 3: Occupational Health and Safety
- Transferred: The application of the Canada Labour Code (Part II) OSH provisions to the Public Service is effected by the PSLRA rather than the FAA
Part 4: General Application Provisions
- Prohibited: Disclosure of notes or draft orders of the Board members, adjudicators, mediators, PICs, or other authorized persons involved in resolving a complaint under the Act
- Minister designated by GIC to review the Act in five years
Part 2:
Financial Administration Act
FAA Amendments
Vocabulary
- A more consistent vocabulary:
- federal public administration: replaces 'public service of Canada'
- core public administration: the departments and agencies currently in the PSSRA Schedule I, Part I
- separate agency: replaces 'separate employer', and refers to those agencies currently listed in the PSSRA Schedule I, Part II
- public service: the positions within the departments, agencies and separate employers currently in the PSSRA Schedule I, Parts I and II
New Responsibilities
- Deputy Heads of core public administration have the direct authority for:
- Determining learning, training and developmental requirements
- Providing awards
- Establishing standards of discipline and setting penalties
- Terminate employees in ASD situation
- Terminate or demote for poor performance or incapacity
- Deputy Heads of separate agencies have the direct authority for:
- Determining learning, training and developmental requirements
- Providing awards
- Establishing standards of discipline and setting penalties
- Terminating or demoting for non-disciplinary reasons, subject to any terms and conditions which the Governor in Council may direct
- TB policy authority for whistleblowing and harassment is specifically mentioned
- Streamlined TB delegation mechanism
- Improved reporting to Parliament: President of the Treasury Board will prepare a report(s) with respect to:
- the administration of the HR provisions under the FAA;
- its obligations under the Employment Equity Act; and
- the TB Authorities under the PSEA
Transfer of NJC Agreements
- All NJC agreements will continue to apply on transfer from the core public administration to a separate agency
- Where a portion of the core public administration is transferred outside the public service, any agreement with respect to work force adjustment will continue to apply
Structure
- Part 1 -Public Service Commission, Deputy Heads and the Employer
- Part 2 - Appointments
- Part 3 - Deployments
- Part 4 - Employment
- Part 5 - Investigations and complaints relating to appointments
- Part 6 - Public Service Staffing Tribunal
- Part 7 - Political Activities
- Part 8 – General
Phased-in implementation of PSEA
- First – Amendments to the current PSEA (after Royal Assent)
- Establish a new Commission to administer the existing Act and prepare the regulatory/policy framework for the new Act
- Put in place the new regime for political activities
- Establish the new Public Service Staffing Tribunal
- Second – Enactment of New PSEA (once policy/regulatory framework is ready)
- Put in place the new staffing regime, including staffing recourse
- Continue with the newly established PSC/PSST, and new regime for political activities
Preamble
-
The new PSEA will include a preamble which recognizes the importance of a merit-based, non-partisan public service which is representative of Canada's diversity, able to serve the public with integrity and in their official language of choice and strives for excellence
Part 1 - Public Service Commission
- New appointment process for President of PSC – appointed by GiC after approval by both Houses
- The PSC will retain the following authorities:
- to make appointments to and within the Public Service at the request of Deputy Heads
- to delegate its authorities to Deputy Heads with conditions, and to modify or rescind a delegation
- to set policy regarding appointment including choice and nature of selection process and selection tools
- to establish areas of selection
- to exclude persons and positions from application of the Act
- to make regulations regarding matters under its jurisdiction
- to appoint and establish new priorities
- to conduct investigations under Part II of the Inquiries Act (except for internal appointments when delegated to Deputy Heads)
- to conduct audits with new powers under Part I of the Inquiries Act
- perform other functions assigned by the Governor in Council
The Employer
- Will retain the following authorities:
- establish qualifications for developmental programs (MTP, CAP, AEXDP, and ADMPQP)
- set regulations regarding deployments within occupational groups and appointment-to-level
- Will assume the following powers:
- establish qualification standards
- define promotion
- set policy or regulations regarding probation
- set regulations regarding deployments between occupational groups
- determine rate of pay on appointment
- determine the current and future needs of the Public Service
Deputy Heads
- Will retain the following authorities:
- establish qualifications, both essential and those considered to be an asset
- determine the current and future needs of the department/agency
- decide when to staff
- determine placement mechanism (e.g. deployment, appointment, secondment)
- make deployments
- reject employees on probation
- lay-off employees
Part 2 - Appointments
- Appointments "shall be made on the basis of merit, and must be free from political influence"
- Appointments will continue to be based on merit but with a new approach, which takes into account the needs of departments and the public service
- Merit means that the Commission (or its delegate):
- is satisfied that the person to be appointed meets the essential qualifications for the work to be performed as established by the DH (including official language proficiency)
- has regard to:
- any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization
- any operational requirements of the organization that may be identified by the Deputy Head
- any needs of the organization identified by the Deputy Head which may include the needs of the public service, as identified by the employer, that the deputy head determines to be relevant to the organization
Employment Equity
- Current PSEA provisions regarding the establishment and implementation of Employment Equity (EE) Programs are unclear
- Authorities for EE are clear in the Employment Equity Act and will not be reproduced in the PSEA
- New PSEA will provide that:
- PSC retains its authority for recruitment and appointment to EE Programs which are established by the Employer
- PSC retains its authority to set regulations associated with appointments to EE Programs
Official Languages
- Some current PSEA provisions for official languages are unclear
- Authorities for official languages are clear in the Official Languages Act, and will not be reproduced in the PSEA
- New PSEA provides:
- Deputy Heads may establish qualifications, including official language requirements
- PSC assesses all qualifications, including official language proficiency
- PSC, under its exclusion approval order authority, may continue to exempt persons from meeting language qualifications upon appointment (non-imperative staffing)
Mobility
- Employees of separate agencies would automatically be able to participate in appointment processes open to all employees in the public service
Priorities
Part 3 - Deployments
- Deployments would continue to require the consent of the employee who is to be deployed, except where deployment was a condition of employment or the employee's deputy head found after investigation that the employee had been guilty of harassment
- Any disputes would be dealt with through the grievance process. Only the 2 above exceptions can be adjudicated
- Mobility – Separate Agencies
- Separate agencies would be able to request that the PSC review their staffing regime which would allow for deployments of their employees to the part of the public service to which the PSC appoints
Part 4 – Employment
- The Oath or Solemn Affirmation of Office and Secrecy becomes a condition of appointment
- Term employment can be extended without the need to reapply merit as it is not a new appointment – no recourse
- Term employees will be converted to indeterminate by law, in accordance with Treasury Board policies. No need to reapply merit as it is not a new appointment – no recourse
Part 5 – Investigations and complaints
- PSC may investigate:
- External appointments
- Politically influenced appointments
- Occurrences of fraud in appointment processes
- Complaints:
- Complaints against internal appointments will go to a new independent Tribunal – Public Service Staffing Tribunal
- The grounds for complaint are in the Act:
- Abuse of authority in setting qualifications, requirements and needs, and in assessing candidates
- Abuse of authority in choosing between an advertised and a non-advertised appointment process
- Abuse of authority includes bad faith and personal favouritism
- Failure to assess in official language of choice
Part 6 - Public Service Staffing Tribunal
- Employees will have access to third party review for internal appointment processes through a new independent tribunal (the Public Service Staffing Tribunal replacing the current PSC Appeal Boards)
- PSST ensures that review is completely independent from appointment authority
Part 7 - Political Activities
- Political Activities of PS employees:
- Right of employee to engage in political activities recognized while maintaining political impartiality
- Political activities defined in legislation: carrying on any activity in support of or against a candidate before or during an election period or a political party, or being a candidate in an election
- Expanded role for the PSC in granting permission or leave to seek nomination or run in municipal or regional elections, in addition to provincial, territorial or federal elections
- Deputy Heads would not be allowed to participate in any political activity other than voting in elections
Part 8 - General
- Review of legislation by the Minister designated by GIC in five years
Part 4: CCMD ACT
- Training and Development Canada, which is was administered by the PSC, and the Canadian Centre for Management Development
have been amalgamated into a new institution: The Canada School of Public Service
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