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Is the right to strike further limited by the new
provisions on Essential Services?
No, in fact, the contrary is true:
- In the current regime, a position must be designated if any
part of that employee's duties relates to safety or security of
the public. That can result in actual or perceived over
designations.
- Under the PSLRA the employer and bargaining agent may negotiate a
smaller complement of employees to provide essential services where only part of an employee's
duties relate to a service that is necessary for safety or security.
For example, if 20 employees normally spend 50% of their time on
duties necessary to provide an essential service, then 10 of
those employees could, during a strike, spend 100% of their time
on those duties, allowing the other 10 to exercise their right to
strike.
- If the parties cannot agree, then the new PSLRB will decide
how many positions are necessary, unlike the current regime where
the PSSRB cannot determine how many positions are necessary.
- In the current regime the PSSRB cannot change the level of
service determined by the employer. This was decided by the
Supreme Court of Canada in the Air Traffic Controllers case in
1982 and remains unchanged in the PSLRA. For example, if
the employer determines that old age security cheques need be
distributed at one-month intervals, neither the bargaining agent
nor the PSLRB may force the employer to distribute the cheques at
two-month intervals.
- What constitutes an essential service remains substantially
the same, that is, one that is necessary for the safety or
security of the public.
Why does Bill C-25 require strike votes?
- The decision to go on strike is on of the most important
decisions affecting employees.
- The requirement to conduct a strike vote ensures that all
employees of a bargaining unit have the opportunity to exercise
their democratic right to vote on whether there should be a
strike. The same requirement was added to the Canada Labour Code
in 1999 and similar requirements exist in all Canadian
provinces.
Does Bill C-25 create new offences against union officers?
- The Bill imposes on the bargaining agent, its representatives
or its officers, a duty not to act in a manner that is arbitrary,
discriminatory, or in bad faith in the representation of a member
of the bargaining unit (the duty of fair representation). The
Bill also sets out union unfair labour practices, such as to
expel, suspend or discipline members for discriminatory purposes
or for having exercised their rights under the Act.
- Unfair employer labour practices are also prohibited and made
offences in C-25. Examples of such practices are to interfere in
the formation or administration of an employee organization,
discipline against officers of employee organizations for their
union activities, or reprisals against an employee for exercising
a right under the Act.
- New offences are created in this regard, in the same fashion
as in the Canada Labour Code.
Does Bill C-25 criminalize innocent picket line activity
aimed at essential workers?
- Bill C-25 makes it a prohibition to "impede or prevent or attempt to impede or prevent" essential employees from entering or leaving the workplace. The premise in Bill C-25 is that the essential services regime is pointless if employees providing
essential services to Canadians cannot enter or leave the workplace.
- In the current regime the employer, if requested by the
PSSRB, provides written notice to employees occupying designated
positions. Bill C-25 entrenches this practice. As such, those
employees that are essential under C-25 and those employees that
are not, will be clear.
- Prior to any prosecution for an offence under Bill C-25, the
PSLRB must consent to the prosecution for it to occur. In its
determination the PSLRB may hear evidence as to whether a person
unknowingly obstructed an essential employee. Should a
prosecution proceed, evidence may again be presented on whether a
person unknowingly obstructed an essential employee.
Does Bill C-25 eliminate competitions? Will this open the
door to bureaucratic patronage?
- Bill C-25 does not eliminate competitions. It allows both
advertised and non-advertised appointment processes, as is the
case today. The Public Service Commission (PSC) will set policy on the use of non-advertised processes. In setting
policy the PSC must consult with the bargaining agents.
- The Bill specifies that the grounds for appointment
complaints to the Public Service Staffing Tribunal - abuse of
authority - includes personal favouritism. It also specifies that
abuse of authority in choosing between an advertised and a
non-advertised process is a ground for complaint to the
Tribunal.
- These are strong safeguards.
Will the new approach to merit allow managers to hire
whomever and however they please?
No. The legislation provides strong safeguards:
- The Public Service Commission (PSC) retains all appointment
authority and the ability to delegate that authority, subject to
terms and conditions. The PSC will monitor the use of delegated
authority and may amend or rescind delegation if necessary;
- The PSC will continue to have full authority to set policies
on how staffing is conducted, in consultation with the bargaining
agents;
- A new independent Public Service Staffing Tribunal will hear
complaints of abuse of authority in internal appointment
processes and have the power to order that appointments be
revoked or corrective action be taken;
- The PSC will be able to investigate external appointment
processes to ensure they were based on merit, with the power to
revoke appointments and take any corrective action it considers
appropriate.
Will people have to meet all of the qualifications for
appointment under Bill C-25?
Yes. Under C-25, as today, appointees must meet the essential
qualifications of the work, which include the experience, skills,
education and personal suitability necessary to perform the work.
Essential qualifications are not minimum qualifications. This is
the same as the basis for assessment that is used today.
C-25 also requires that appointees meet any additional
qualifications that are an asset to the work or the organization,
any operational requirements and any current and future needs of
the organization and of the public service.
Are the new grounds for staffing recourse so narrow that it
will be almost impossible to prove a complaint?
No. The new grounds for staffing recourse are:
- That a person was not assessed in the official language of
their choice
- That a person was not chosen for appointment because of an
abuse of authority
Bill C-25 clearly states that abuse of authority includes bad
faith and personal favouritism.
Also, the new Public Service Staffing Tribunal will have a
broader jurisdiction than the current appeal boards. This means
that, unlike today, a person can challenge any of the following
matters:
- The essential qualifications that are used
- Any additional asset qualifications that are used
- Any current or future operational requirements that are
used
- Any current or future needs of the organization that are
used
- The decision to use a non-advertised appointment process
These grounds will ensure that managers are held accountable
for their actions. Formal recourse will be focused on how the
complainant was treated.
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