Public sector employee protections watered down under bill C-4

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Monday, 11 November 2013 08:00 | Written By Barry Goldman and Matthew Scott

On Oct. 22, the government of Canada introduced bill C-4, a massive piece of omnibus budget legislation containing reforms and amendments to many existing laws.

The amendments affect a number of laws, including the Public Service Labour Relations Act.

The bill C-4 amendments to the act would remove many labour rights public service employees are entitled to under current legislation. Sweeping reforms to the definition of essential services, the mandate of the Public Service Labour Relations Board, the right to strike by public servants, and the financial nature of the arbitral and conciliation awards the board may grant would, among other things, effectively neuter the bargaining rights of the affected members of the public sector.

The opening volley on bargaining rights is a subtle change to the mandate of the board under s. 13 of the act. Previously, the board had a mandate to provide “adjudication services, mediation services, and compensation analysis and research services” in accordance with the act. But the amendments in s. 295 of bill C-4 dispense with the compensation analysis and research services powers of the board. That means the board could now only provide adjudication and mediation services. The change foreshadows amendments that will dramatically modify the board’s powers with respect to arbitral and conciliation awards.

The amendments to the act redefine essential services as being “a service, facility or activity of the government of Canada that has been determined under subsection 119(1) to be essential.” Under the old language of Division 8 of the act, the employer had only the exclusive right to determine the level at which an essential service could be provided. The employer and employees had to co-operate to determine which employees were affected and then enter into an essential services agreement. Failure to agree would result in intervention by the board.

The new language under s. 305 of bill C-4 would give employers the exclusive right to determine if a service, facility, or activity is essential “because it is or will be necessary for the safety or security of the public.” It would also give employers “the exclusive right to designate the positions in a bargaining unit that include duties that, in whole or in part, are or will be necessary for the employer to provide essential services, and the employer may exercise that right at any time.”

These changes would most certainly reduce the ability of federal public servants to strike. Bill C-4 also amends the process for dispute resolution under the act. It says bargaining units in which 80 per cent or more of the employees are designated as essential may not strike and must resolve their disputes through arbitration. Furthermore, bill C-4 would bolster s. 194(2) of the act that prohibits an employee organization such as a union from declaring or authorizing a strike, the effect of which would be to involve the participation of employees designated as essential by the employer.

Also, under bill C-4, no officer or representative of an employee organization would be able to counsel or procure the declaration or authorization of a strike with respect to an essential bargaining unit or counsel or procure the participation of those employees in a strike. Given that an employer would be able to designate employees as essential at any time, the change could very well make it significantly more difficult for employee organizations to secure strike votes in the future.

After having restricted the ability of employee organizations to engage in concerted labour action, the amendments would also rewrite the rules involving arbitrations and conciliations before the board. Before, under s. 148 of the act, the board had a broad spectrum of factors to consider in making an arbitral award as well as the ability to look at any other factors it deemed relevant. The new amendments strip the board of these broad powers.

Now the considerations take the form of preponderant and other factors. The term preponderant factors contains new elements, including consideration of whether the compensation levels are a “prudent use of public funds” and “Canada’s fiscal circumstances relative to its stated budgetary policies.” Likewise, the term “other factors” is a category to which many of the former considerations under the current act have been relegated. There have also been similar amendments to the conciliation provisions set out in the new s. 175 of the act.

And bill C-4 goes even further. If passed, it would allow the chairperson, either by fiat or on the application of either of the parties, to direct the board to review the matter if, in the chairperson’s opinion, the decision does not represent a reasonable application of the s. 148 factors highlighted above. This new mechanism can force the board to reconsider decisions it could have made, without internal review, under the current act where it has considered the s. 148 factors but failed to do so in a “reasonable” manner.

There’s no doubt bill C-4 will have an impact on federal public servants. Although the act was not a perfect piece of legislation regarding the collective bargaining rights of federal public servants, it did afford reasonable protections. The amendments incorporated within bill C-4 have definitely watered down employee powers and protections and, in the process, effectively removed many of those rights.

Barry Goldman is a partner at Shibley Righton LLP and a member of its labour and employment law group. Matthew Scott is a litigation associate in the firm’s Toronto office and is also a member of its labour and employment law group.

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