The Professional Institute of the Public Service of Canada
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Submission to the Standing Committee on
Public Safety and National Security regarding Bill C-7
An Act to amend the Public Service Labour Relations Act, the Public Service
Labour Relations and Employment Board Act and other Acts and to provide
for certain other measures
April 18, 2016
The Professional Institute of the Public Service of Canada
250 Tremblay Road, Ottawa, Ontario K1G 3J8
Tel.: 613.228.6310
www.pipsc.ca
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The Professional Institute of the Public Service of Canada
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Introduction
The Professional Institute of the Public Service of Canada represents 57,000 professionals
across Canada’s public sector, the vast majority of whom work in the federal public service. Fair
labour law -be it at the federal, provincial, or municipal level – is a keystone of a democratic
society and a hallmark of progressivism.
Nationally and internationally, RCMP officers are as iconic as they are respected. The tireless
service of each woman and man who dons the RCMP uniform is a fundamental part of the
peace and order which Canadians daily enjoy. These are people who place themselves in harm’s
way for our common welfare – surely, RCMP officers deserve a bargaining process that serves
them as well as they serve others.
While the proposed legislation takes some steps towards breaking an archaic tradition, it still
does not provide RCMP officers with a process of meaningful collective bargaining as
guaranteed by s. 2d of the Charter and envisioned by this land’s highest court in recent key
decisions, including, of course, the catalyst to this legislation, Mounted Police Association of
Ontario v. Canada [2015] 1 S.C.R. 3 (hereafter, “MPAO”).
Critical matters cannot be included in a collective agreement
By barring certain key terms from a collective agreement governing RCMP members, Bill C-7
unwisely dims the bargaining process, to the detriment of the employer and employees alike.
These submissions will review certain terms which are improperly denied a place at the
bargaining table under C-7, namely:
• Conduct, including harassment;
• Law enforcement techniques;
• Discharges, demotions and probation;
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• Uniform, equipment and basic requirements for carrying out duties of an RCMP
member.
The philosophy behind meaningful collective bargaining, which has been proven true time and
time again, is that both employer and employees benefit in the long run from a workforce
which is fairly treated, as this leads to high morale and, ultimately, improved productivity and
efficiency of labour. This is, naturally, accompanied by improved quality of life for workers, but
also their loved ones. It is for this reason that the Institute calls upon the legislature to remove
the aforementioned limitations to the RCMP bargaining process; it is of no permanent benefit
to the employer, RCMP officers, or Canadians at large, that such critical terms of employment
be stifled.
While the Charter may not guarantee the outcome of the collective bargaining process, 1 the
freedom of association set out at s. 2d absolutely encompasses the right of employees to come
together, as a collective, to engage in meaningful dialogue with the employer over important
workplace issues. 2 Yet, how can bargaining be meaningful if vital terms of employment cannot
be brought forth for consideration? To use another analogy, disallowing these employment
terms from RCMP collective bargaining would be akin to inviting a guest speaker to discuss the
modern history of Europe, yet forbid them from bringing up the World Wars; it would not be a
meaningful discourse.
Restriction of terms of employment related to discipline
The exclusion of all matters relating to conduct – including any discipline -from the collective
agreement under C-7 is overly restrictive. The Institute echoes the views expressed by the
Mounted Police Professional Association (“MPPAC”), in their written submissions, that relate to
1
Ontario (Attorney General) v. Fraser, [2015] 1 S.C.R. 3, para 87.
2
Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, paras 89-90.
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a lack of independence of the existing process. Through amendment, C-7 could seize an
opportunity to provide RCMP officers access for a fair and independent process to deal with
disciplinary matters; a process which can and should provide for a role for an RCMP officers’
union as appropriate.
Restriction of terms of employment related to harassment
Barring terms of conduct such as harassment from a collective agreement governing RCMP
officers is not beneficial. Harassment in the workplace is an issue that must be confronted
bilaterally and optimally through the collective agreement, a principle which has been
implemented already in other Canadian policing associations. The City of Winnipeg and the
Winnipeg Police Association, for example, use the following collective agreement language:
The City and the Association jointly affirm that every employee in the Winnipeg Police Service shall be
entitled to a respectful and safe workplace. The environment must be free of behaviours such as
discrimination, harassment, disruptive workplace conflict, disrespectful behaviour, and violence in the
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workplace.
Bill C-7 should take into account the toll which harassment does take, both in morale and on
workforce efficiency, and grant such language the place it deserves in the bargaining process.
There is no basis to exclude the notion of harassment from collective bargaining.
Restriction of terms of employment related to safety
Bill C-7 not only infringes on RCMP officers’ Charter rights under 2(d) by muting fundamental
terms of employment at the bargaining table, but it also creates potential safety issues for
RCMP members. Policing agreements such as Toronto Police Association and the Toronto Police
Services Board include minimum staffing levels for RCMP members on patrol, to increase the
safety of individual officers. C-7 ought to be amended to reflect the fact that the bargaining
3
Collective agreement between the City of Winnipeg and the Winnipeg Police Association, effective to December
23, 2016, page 12.
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agent has a role to play in establishing certain terms of employment that directly affect their
members’ ability to do their jobs efficiently and safely. There is no reason to prohibit the
inclusion in the collective agreement of terms relating to appropriate equipment and uniform,
law enforcement techniques, and other basic requirements to ensure the safety of the women
and men who serve and protect. To the contrary, the union’s input and influence should be
welcome on this crucial matter.
Denial of fair and open trial – the perpetuation of the ‘cloak of secrecy’
The proposed legislation allows for two separate grievance arbitration tracks: the first, directed
to the PSLREB, are grievances related to the application of the collective agreement. The
second track encompasses all grievances not related to the collective agreement, which are
directed to the RCMP hierarchy for resolution.
There is no dispute concerning the distinction between these two decision-making bodies; the
PSLREB is an open court principle, with publicly accountable and neutral decision makers. The
internal RCMP process offers no guarantee of natural justice, and therefore tills - and has tilled fertile ground for biased and slanted grievance outcomes.
The Institute submits that this two-tiered approach to labour relations sets RCMP officers apart
as second class employees; for, even if collective agreement issues are permitted to be heard at
arbitration, we have already touched on the fact that critical employment terms, such as
discipline and harassment, cannot embark on this route. Instead, under C-7, these matters are
to be re-routed back into the hands of management, and the accompanying lack of
transparency and independence that has mired these workers for too long.
The ‘cloak of secrecy’ is further enabled by C-7 to infiltrate even the PSLREB arbitration
grievance track, as the Bill provides that the RCMP Commissioner may refuse to comply with
disclosure orders in adjudication hearings. It cannot be that the RCMP Commissioner should be
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immune to disclosure procedure; even coroners’ inquests may be disclosed in arbitration as
evidence.
Amendments to Bill C-7 could easily expunge these issues, and afford women and men of the
RCMP membership the basis for transparent and accountable arbitration.
Inconsistent treatment in relation to Workers’ Compensation
RCMP officers work under duress; this is common knowledge. However, the psychological
repercussions of that are not as readily apparent. More and more, issues of RCMP officers
suffering from Post Traumatic Stress Disorder (PTSD) and other associated psychological,
illnesses are coming to light. However, Bill C-7 provides that workers’ compensation claims
should be adjudicated by the province in which the employee has been appointed or engaged
to work. This is problematic because the eligibility criteria for occupational illness and disease,
including prevalent mental disorders such as PTSD, vary greatly from province to province.
In Yukon, for example, the Workers’ Compensation Act defines post-traumatic stress disorder as
“a disablement caused by mental stress.” 4 In contrast, the Ontario Workplace Safety and
Insurance Act ascribes to the definition of PTSD in the Diagnostic and Statistical Manual of
Mental Disorders. 5
Such discrepancies are not logical, and engender unequal treatment for the RCMP officers who
diligently work in urban, rural and remote areas all across Canada. The psychological toll which
RCMP members bravely endure should not be weighed by jurisdiction, but rather by individual
need. It is our view that Bill C-7 should be amended to standardize Workers’ Compensation
4
Workers’ Compensation Act, SY 2008, c.12, page 5.
5
DSM-5, Posttraumatic Stress Disorder, 2014, http://www.dsm5.org/Documents/PTSD%20Fact%20Sheet.pdf.
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eligibility federally, particularly in view of the psychological trauma which is suffered – often
invisibly - by the women and men of the RCMP.
Dispute Resolution Process for impasse in bargaining
While it is typical to provide for interest arbitration instead of the right to strike as a dispute
resolution mechanism for workers such as police officers, Bill C-7 does not provide for an
adequate alternative to the right to strike, given the restrictions imposed on the arbitration
panel through s. 148. This is because a union of RCMP officers would be subject to the same
arbitration process as currently applies to other bargaining agents covered by the PSLRA; a
process wherein the arbitration panel’s independence is improperly fettered, denying the
parties a truly impartial and effective alternative to the right to strike. In particular s. 148 of the
PSLRA, which was modified in 2013 requires an arbitration panel to give preponderance to the
“government’s fiscal circumstances relative to its budgetary policies.” The Institute set out in
detail its position on this earlier amendment to the PSLRA when it appeared before the
Standing Committee on Finance in 2013 to comment on Economic Action Plan 2013 Act No. 2 (then
Bill C-4).
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In our submissions, the Institute made it clear that in reality the fiscal preponderance at s. 148
can be divided into two: government’s fiscal circumstances and its budgetary policies. The first,
“government’s fiscal circumstances,” is essential and should undoubtedly be central to any
discussion related to bargaining. It is necessary for the arbitrator to look objectively at the
economic climate and the fiscal health of the country when making awards. The second part,
“relative to its budgetary policies,” completely changes the landscape of the arbitral process
and will compromise the impartiality of the public service. This addition dilutes the value of
objective analysis of relevant economic factors and replaces factual evidence with ideological
6
See the Institute’s brief on this issue at:
http://www.pipsc.ca/portal/page/portal/website/issues/govtaffairs/112613
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preference. Any labour negotiation, public or private, includes a discussion about whether or
not a proposal is reasonable and whether or not the employer has the ability to pay for a
reasonable proposal. This change stifled debate about “ability to pay” and replaced it with
“desire to pay,” regardless of ability or necessity.
Bill C-7 presents an opportunity not only to fulfill its mission to bring fairness and meaningful
freedom of association to the officers of the RCMP, but also to fix what was broken in 2013 for
the whole of the federal public service by way of very simple amendments.
Affiliation clause – lacking clarity
It is difficult to determine, with certainty, the purpose served by the prohibition on union
affiliation in Article 2 of Bill C-7. The meaning of the word “affiliation” in the context of C-7 itself
is not clear – this vagueness proves an unnecessary barrier to a budding RCMP union trying to
understand the limits of seeking assistance from established unions. To this end, the Institute
supports the position advanced by the MPPAC in its submissions to the Committee.
Conclusion
In summary, the Institute wishes to reiterate support for the introduction of a free and fair
process for collective bargaining and labour relations for RCMP officers. A new age of labour
relations is dawning internationally, where a balance is finely struck between employers and
employees, through meaningful collective bargaining. This is a reformation which places
equitable and impartial treatment of employees in relief against the ‘bottom-line,’resulting in
improved quality of life and productivity. For Canada to take the lead in this reform, Bills such
as C-7 should be amended to place the bargaining process, fair trial, and equal treatment in the
fore.
As such, the Institute calls upon the Committee to make amendments to ensure that:
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restrictions to the terms of the collective agreement be lifted, in particular those dealing
with harassment, equipment and procedure, and discipline;
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the internal decision-making process of the RCMP be eliminated from grievance
resolution, and replaced with a more transparent form of decision-making body, ideally
an independent board;
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Workers’ Compensation eligibility criteria be standardized federally;
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an effective and impartial interest arbitration process be implemented, and;
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the definition and motivation of the “affiliation” clause be clarified.
It is our view that, through reflection and foresight, Bill C-7 can be amended to constitute a fully
Charter compliant labour relations scheme for RCMP officers.
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