At the time this article was
written George Sulzner was Professor of Political Science at the university of
Massachusetts/Amherst
On June 27, 1986 Bill C-45, the
Parliamentary Employment and Staff Relations Act received Royal Assent. Part I
applied only to employees of the House of Commons, the Senate and the Library
of Parliament and came into force on December 24 of that year. Parts II
(Employment Standards) and III (Occupational Safety and Health) provided for
application of provisions of the Canadian Labour Code (Occupational Health and
Safety and Labour Relations) to apply to those persons as well as to
individuals over whom a Member of Parliament had direction and control
including those employed to provide research or associated services to the
caucus. Parts II and III have yet to be proclaimed. Nevertheless this
legislation provided an example of how standard labour relations models could
be applied to a legislative environment. This paper looks at early experience
under Part I and the prospects for implementation of Parts II and III as well a
considering whether certain aspects of the new law may have future application
for other legislatures or areas of the Canadian public sector labour relations.
This study is based on interviews and research conducted by the author in the
summers of 1986, 1988, and 1989 with the assistance of a grant from the
Academic Relations Section of the Canadian Embassy in Washington.
The origins of Bill C-45 were
varied going back to the late 1960s but accelerating in the early 1980s when
the Speaker of the Commons, Jeanne Sauvé, initiated steps to bring the
personnel operations of the Commons into step with other sectors of the federal
government. Measures designed to rationalize practices including the
restructuring of positions also established a climate in which the
administration rather than individual members of Parliament was gradually seen
by employees to be the employer. Some dissatisfactions with the new
classifications, especially among the drivers and messengers of the Operations
Sub-Group of the Commons, generated unrest which led to early and unsuccessful
efforts of the Teamsters to organize a union in 1982.1
The move toward collective
bargaining was energized by staff of the New Democratic Party in the Commons
who a decade earlier had secured unlegislated collective bargaining rights for
themselves in their dealings with the parliamentary leadership of their party.
These efforts, in association with a campaign by the Public Service Alliance of
Canada, produced enough support that by 1983 a critical mass of employees
within the Commons and the Library of Parliament petitioned the Canada Labour
Board to be certified as a collective bargaining unit under the Canada
Labour Code.2
The Alliance, the largest public
sector union at the federal government, had a long standing strategic interest
in organizing the Parliament of Canada. The harsh realities of the collective
bargaining climate from the middle seventies through the early eighties,
embodied by the Public Sector Compensation Restraint Act of 1982, had
convinced a number of its leaders that future gains may depend as much on
legislative enactments as on collective bargaining agreements. At a minimum,
developing a legislative presence could do no harm and enhancing knowledge
about the way Parliament reaches a decision could be invaluable for attaining
elements of the organization's future agenda. As one negotiator for the
Alliance put it, "We wanted to change the image of collective bargaining
among the MPs. We wanted them to realize that the introduction of collective
bargaining is not the end of the world.3
The election of Brian Mulroney in
1984 also affected the attitude toward collective bargaining by the controlling
party of Parliament. His previous experience as a labour attorney and as
President of the Iron Ore Company of Canada had shaped his outlook on federal
labour relations. He believed in collective bargaining and let it be known he
was not adverse to the process being applied to employees of Parliament.4
However, the government successfully appealed acceptance of the initial
certification petitions by the Canada Labour Board in the federal courts. The
government argued that parliamentary employees did not come under jurisdiction
of the Canada Labour Code. They preferred collective bargaining
legislation modelled on the Public Service Staff Relations Act of 1967.
Accordingly Bill C-45, the Parliamentary Employment and Staff Relations Act
was, tabled in Parliament in April of 1985.5
The legislative committee
established to consider Bill C-45 was chaired by Jack Ellis, a Member of the
Special Committee on Reform of the House of Commons, and included all the local
Ottawa area MPs. Indeed, the House leadership made it clear that the Committee
would have considerable autonomy in this matter. In fact, the subject matter of
Bill C-45 was changed significantly as a result of the hearing process. Some
participants claimed that various members were shocked to learn about certain
employee dealings that had occurred in the past. They wanted the Commons to be
regarded as a good employer and responded to union and employee lobbying by
increasing the jurisdiction of adjudication to include staffing matters, termination
of employment for any reason after the probationary period, and job
classification issues. This was a significant expansion of employee appeal
rights beyond anything contained in the original Bill.
The resulting legislation was,
therefore, a complex hybrid. - more restrictive in its bargaining rights than
those granted under the Canada Labour Code, but more expansive in
certain sections (arbitration and adjudication) than the Public Service
Staff Relations Act.
In brief, the Act was an attempt to
bring comparable collective bargaining rights with regard to terms and
conditions of employment in the federal service of Canada to Parliament Hill,
albeit, taking into account the unique institutional characteristics and
constitutional position of the Parliament of Canada.
The distinctive features of the Parliamentary
Employment and Staff Relations Act relate to the sections dealing with
strikes, interest arbitration, and the adjudication of grievances. Sections 73,
74 and 75 prohibit strikes and set forth the fines associated with a strike.
These sections are the first direct statutory prohibition of strikes for
unionized employees of a federal institution of government. The Public
Service Staff Relations Act in contrast, provides, once certain conditions
are met, for a conciliation/strike alternative for interest dispute resolution.
Most federal unions have been opting for this route in their recent contract
negotiations. Parliament, however, was not willing to provide a mechanism which
could bring the deliberations of the government to an involuntary halt and only
an enriched binding arbitration process is provided as a devise to bring
closure to interest disputes. Whether this denial of the strike represents a
set back for the federal unions is a subject of dispute. On the one hand, it
clearly takes away an element of leverage that federal unions have used in the
past to produce agreement in negotiations. On the other hand, federal employers
have used the employee designation procedure under the conciliation/strike
alternative of the Public Service Staff Relations Act to vitiate the
effectiveness of a strike.6 It could well be the case that the loss
is primarily symbolic, even if deeply felt. Perhaps as a measure of compensation,
binding arbitration under the Parliamentary Employment and Staff Relations
Act has been strengthened compared to the provision incorporated in the
older Public Service Staff Relations Act.
Binding interest arbitration is
established in sections 46 through 61 of the Parliamentary Employment and
Staff Relations Act. The subject matter of an arbitral award is limited
only by the fact that it must fall within the scope of bargaining that has
engaged the parties previous to a request for arbitration; does not require an
Act of Parliament to put it into effect other than the appropriation of monies;
and does not deal with the classifying, organizing, and staffing
responsibilities of the employer. These issues are reached by the unions either
directly or indirectly through the adjudication process associated with
grievances. The breadth of coverage of arbitration is similar to that for
conciliation under the Public Service Staff Relations Act but very much
enlarged compared to arbitration which was restricted to "rates of pay,
hours or work, leave entitlements, standards of discipline, and other terms and
conditions of employment directly related thereto.7 Whereas
conciliation was advisory and if rejected by either party could lead to a
strike, arbitration in the PESRA is binding upon the parties. There is,
therefore, in contrast to the PSSRA, more incentive for the unions to request
arbitration.
Another segment of the Act that
deserves special attention is the scope of adjudication associated with employee
grievances. Adjudication beyond the final level of the grievance process under
the PSSRA was limited to matters relating to the "interpretation or
application of the collective bargaining agreement, or an arbitral award, or a
disciplinary action resulting in discharge, suspension or a financial
penalty." The Public Service Staff Relations Board was the agency
designated to act on the grievances referred to adjudication under the Act. The
PESRA provides adjudication not only for the subjects listed above, but also
for terminations of employment for any reason once the probationary period is
completed on an initial appointment, demotions, denials of appointments beyond
the initial appointment, and the employer's classification of an employee. The
statute responds to serious criticisms that have been directed regularly by
federal unions and others about the restraints placed on adjudication under the
PSSRA. For the first time in the federal sector, adjudications concerning
staffing and classification issues have been or are about to be heard by a
neutral third party. The Public Service Staff Relations Board hears
adjudications relating to contract interpretation, disciplinary action and
termination. Grievances concerning demotion, appointment, and classification,
however, are referred to an outside adjudicator, selected by the parties, which
share equally the associated expenses and remuneration.
Negotiating under the Act
Prior to the end of December 1986
when Part I came into force, the employer and the federal unions were preparing
for their new relationship. The Commons hired Michel Latreille as their
Director of Staff Relations and Compensation. The Senate chose Paul Pageau as
their Staff Relations Officer. The Library of Parliament selected Hugh Fothergill
as Chief Negotiator. All three had extensive experience with the negotiations
and adjudication unit of the Treasury Board, the designated employer for most
of the labour-management relations conducted at the federal level.. They were
very familiar with practices under the PSSRA and well equipped to adapt its
framework to their respective institutions of Parliament. The only union that
had been systematically involved with the bringing of collective bargaining to
Parliament was the Public Service Alliance of Canada. They hoped to develop
master contracts for eligible employees and were working to produce fairly
comprehensive bargaining units within the three employer entities in
preparation for certification under the Act.
Bargaining Unit
|
Bargaining Agent
|
No. of Employees
|
|
House of
Commons as Employer
|
|
Protective
Services Group
|
House of Commons
Security Services Employees Services Association
|
200
|
|
|
|
Technical Group
|
National Association
of Broadcast Employees and Technicians
|
50
|
Procedural
Sub-group and Analysis/Reference Sub-group in the Parliamentary Programs
Group
|
Professional
Institute of the public Service
|
80
|
Operational Group
(except part time cleaners)
|
Public Service
Alliance of Canada
|
525
|
Reporting
Sub-Group and Text Processing Sub Group in the Parliamentary Programmes Group
|
Public Service
Alliance of Canada
|
90
|
Postal Services
Sub-Group in the Administrative Support Group
|
Public Service Alliance
of Canada
|
50
|
|
|
995
|
|
Senate of
Canada as Employer
|
|
Legislative Clerk
Sub-group in the Administrative Support Group
|
Professional
Institute of the Public Service of Canada
|
12
|
Operational Group
(except the Protective Service Sub-Group)
|
Public Service
Alliance of Canada
|
100
|
Protective
Services Sub-Group in he Operational Group
|
Senate Protective
Service Employees Association
|
60
|
|
|
172
|
|
Library of
Parliament as Employer
|
|
Research Officer
Sub-group and Research Assistant Sub-Group in the Research and Library
Services Group
|
Public Service
Alliance of Canada
|
60
|
Library Science
(Reference) Sub-Group and Library Science (Cataloging) Sub-group in the
Research and Library Services Group
|
Public Service
Alliance of Canada
|
50
|
Library
Technician Sub-Group in the Research and Library Services Group
|
Public Service
Alliance of Canada
|
40
|
Administrative
and Support Group
|
Public Service
Alliance of Canada
|
70
|
|
|
220
|
During the first seven months of
1987 the Public Service Staff Relations Board received twelve applications for
certification, seven concerning employees of the House of Commons, three
concerning employees of the Senate and two concerning employees of the Library
of Parliament. The following table shows the bargaining units, unit size and
bargaining agents as of November 1989.
One interesting aspect of the
certification process was that the Clerical Sub-Group and the Secretarial
Sub-Group within the Administrative Support Group of the House of Commons and
the Senate were not organized into bargaining units similar to common practice
in the federal sector. Part of the explanation is that the largest grouping of
clerks and secretaries are employed in the personnel operation which has been
traditionally excluded from collective bargaining activity in the federal
sector. The remaining individuals are spread widely throughout Parliament and
are thus difficult to organize. Not surprisingly, nearly eighty percent of the
almost 1,300 employees in bargaining units are employed by the House of
Commons. One would expect that over time the Commons would become the lead
agent with respect to setting trends for collective bargaining in the Canadian
Parliament. This probably will occur, but, it was not the case in the early
negotiation rounds.
Aside from the Commons, the
respective bargaining units in the Senate and the Library are small. Ordinarily
this creates some difficulties for the bargaining agents in representing their
own employees effectively in the contract administration stage of collective
bargaining. This may be offset a little by the fact that the Public Service
Alliance of Canada represents all the organized employees in the Library,
two/thirds of the unit employees in the Commons, and sixty percent of the unit
employees in the Senate. The Act recognized three separate employers and
thirteen distinct bargaining units were certified by the Board. Each employer
would conduct, therefore, at least 3 separate negotiations on contracts, with
the House of Commons leading the way with a set of six negotiations. It is
difficult to imagine a less efficient framework for collective bargaining. Not
only was the potential for whip-sawing very evident but the initial round of
negotiations was likely to be very protracted; especially given the fact that
the Alliance, representing 80 percent of the organized employees, was
confronted with the prospect of negotiating eight agreements with three
distinct employers.
The early history of collective
bargaining in the Canadian Parliament is, thus, occupied nearly exclusively by
the process of negotiating first contracts. Similar to most work environments
where collective bargaining is introduced, the first series of contract
negotiations took an inordinate amount of time with both sides trying to
establish a favourable foundation for all the future dealings that would
follow. The large number of agreements that had to be negotiated also extended
the time-frame for negotiations. The fact that binding arbitration on nearly
all bargaining items was available to the parties further contributed to a
playing out of the process. Five of the thirteen negotiations were resolved in
arbitration. In addition the Public Service Alliance of Canada, which had by
far the largest negotiating agenda, went through three different negotiators
during the prolonged months of bargaining. The disruption caused by the changes
also contributed to lengthening the time for wrapping up the first round of
negotiations.
The initial negotiation phase
lasted more than two years beginning in April 1987. The first agreements were
settled in the late autumn of that year with the Professional Institute of the
Public Service of Canada representing the Legislative Clerk Sub-group in the
Senate and the Procedural Sub-group and Analysis/Reference Sub-group in the
House of Commons. Basically, the master contract of the Institute for their
other federal government bargaining unit members was applied, where
appropriate, to the occupational environment of these legislative clerks. The
pay scales and working conditions embodied in the agreements are quite similar.
Both units have negotiated second agreements this past spring. The respective
independent security services associations in the House and the Senate also
came to agreement quickly and, like PIPS, without having to rely upon
arbitration. The security entities were more like social clubs than mature
bargaining organizations and their intense concerns appeared to relate to
working conditions more than to pay. They had no experience with collective
bargaining and their agreements, particularly in the Senate, are not as
developed as those produced by the established federal sector unions.
The next bargaining unit to reach
cloture on negotiations and, the first to resort to arbitration, was the
Technical Group in the Commons, represented by the National Association of
Broadcast Employees and Technicians, a union that has operated in the private
sector for many years. The bargaining reached a stage of impasse quickly as it
became apparent to both sides that only arbitration could resolve numerous
deadlocks over whether private sector understandings would be applied to the parliamentary
setting. An arbitration panel held hearings in March of 1988 on disputes
involving sixteen of the twenty-two articles of the agreement. An award was
handed down at the end of May and while it seems the rulings favoured the
employer most of the time, the agreement has features that are not approximated
in any other federal contract. The most vivid example might be the clause on
acting pay where the unit members are paid a flat amount of twenty-five dollars
in addition to the "normal pay and other premiums commencing with the
temporary assignment to perform work of a higher classification."8 This
contract language is unique to the Technical Group bargaining unit.
The remaining eight agreements,
four of which went to arbitration, were negotiated by the Public Service
Alliance of Canada. Five of these negotiations carried over into 1989. The
negotiations suffered an initial set back when the union negotiator was
dismissed by the Public Service Alliance of Canada two months into the process,
for reasons entirely unrelated to the parliamentary bargaining. When a new
negotiator was assigned a number of weeks later the local union leaders were
able to persuade the Alliance to designate a negotiator solely for the eight
negotiations of the parliamentary bargaining units. The Alliance targeted the
Operational Group in the Senate for an early negotiating focus. They believed
the bargaining climate was most favourable there and a signed and sealed Senate
agreement could be used to leverage negotiations in the Commons and in the
Library. Negotiations progressed well in the Senate. Paul Pageau, the
management negotiator, had indicated to the Alliance that while he would not
agree to negotiate its political agenda (classification, political
participatory rights for Parliament employees, and staffing) he was prepared to
entertain and even try to incorporate the PSAC master contract clauses into the
Senate agreement wherever they were compatible with the indigenous
organizational characteristics and operations of the Senate. The result, with a
quick side trip for conciliation, was the signing of an agreement in July of
1988. This was followed by settlement with the Postal Sub-group in the Commons,
and with the Library Science Group in the Library of Parliament. The bringing
together of the parties, in both instances, was a product of unique
circumstances that had no relevance to the previous Senate negotiations or to
the remaining five that were on-going.
The deadlock in the Commons
negotiations was centred on the attempt to apply the pay package of the Senate
to the Commons Operational Group. This was complicated by a dispute over
working hours. The Senate negotiators had agreed to a 40 hour work week with no
formal recognition of shorter working hours when the Senate and the House are
not in session. The House management team were not willing to move in this
direction in return for a higher pay package. Finally, in early September of
1988, the parties agreed to a lower pay settlement in return for a recognition
of a shorter work week when Parliament was not in session. The Alliance took
the agreement to its members for ratification in October only to have it voted
down. Shortly thereafter, the Alliance negotiator took a leave of absence from
the job citing negotiating burnout as an element in his decision to remove
himself from the parliamentary bargaining scene. The Alliance provided a third
negotiator, Luc David, in November and the bargaining process was resumed.
David was new to federal collective bargaining having been employed previously
as a union negotiator in the private sector and in the province of Quebec. The
situation confronting him was formidable. He had to pick up the pieces of the
Operational Group negotiations and also very quickly prepare for arbitration
hearings in the last ten days of November concerning the negotiations with the
Research Officers and Research Assistants Sub-Group and the Library Technicians
Sub-Group in the Library of Parliament. The key issues in the arbitrations were
pay (particularly for the Research Sub-Group) overtime, working hours and
annual leave. David, preparing himself as quickly as possible, decided to
challenge the annual leave policy instituted in the mid-eighties for newly
hired employees which reduced their leave compared to employees hired prior to
that time. He successfully argued that it was a change in working conditions
implemented after the acceptance by the Labour Board of the 1983 certification
petition of the Alliance and, therefore, was null and void. The separate
arbitration awards were issued on February 7, 1989.9
The award to the Research Sub-Group
was considerably less across the board on all key issues (other than vacation
leave) than the bargaining unit members expected. They held the Alliance
responsible and, on May 16, 1989, appeared before the Public Service Staff
Relations Board concerning an application for certification by the Economists'
Sociologists' and Statisticians' Association for their unit. The ruling, issued
by Deputy Chairman Wexler, was that the term of the previous arbitral award
barred any new certification effort until February 1, 1990. 10
The award in the Library Technician
Sub-Group arbitration was much more palatable to that unit as the two-pronged
annual leave policy of Parliament was ruled to contravene accepted labour
relations practice and the more generous leave allotment was ordered for all
unit employees. The effect was to grant an additional week of leave for all
recently hired employees. The award also raised the pay package slightly and
reaffirmed past practices relating to hours of work. Clearly, the first two
arbitrations under the Act had a mixed result for both management and the
Alliance. Their respective interests seemed to be at risk in arbitration.
Notwithstanding this perception, however, two of the remaining outstanding
negotiations were settled in arbitration during the spring of 1989 and the last
was resolved with the assistance of a conciliator in June.
In looking back over this initial
experience, representatives of management and the Alliance agreed on a number
of points. The first negotiations are always difficult because each side is
testing the other, as well as, the intent of the statute. Though there are
three separate employers under the, Act, the parties expect pay and conditions
of employment to reach a common denominator level over the next several rounds
of negotiation. This is already apparent in the second agreements that have
been signed. For example, the Commons' is phasing in the old leave policy for unit
members in the first of the second agreements, thereby, taking into account the
arbitrator's ruling in the Library Technician case. Moreover, the parties
expect the employees to gain in understanding and bring their expectations for
bargaining more in line with reality. Some of the tensions associated with the
first set of negotiations were directly related to the inexperience of the
employees and local union leaders as well as some management personnel with
collective bargaining. Finally, the broadening of interest arbitration
jurisdiction under the Act encouraged the resort to arbitration by the parties.
Even though their perceptions of the Board differ (management thinking it is
pro-labour and the Alliance thinking it is pro-management) one can expect
arbitration to occur with some frequency even in future negotiations.
Administration
The contract administration aspect
of collective bargaining has been limited by the prolonged period of negotiations.
Most bargaining units have only had a working agreement for less than a year
and nearly half of them are still awaiting the bound and printed copies of the
agreement that they will distribute to unit employees. Trends cannot be fully
ascertained at this time although some commentary on the early experiences can
be made. All the primary labour relations administrators, Fothergill,
Latreille, and Pageau, talked about the initial difficulties in getting
supervisors and mid-level managers to adapt to a collective-bargaining
situation. They noted that while the previous paternalistic treatment of
employees was on the whole "good paternalism" (parliamentary
employees had better pay, more holidays and annual leave and shorter working
hours than other federal employees) it was still a case of relationships based
on privilege rather than one of relationships based on rights. The
individualized nature of past employee dealings has ceased to be paramount and
along with it an accompanying loss of discretion and autonomy for the first or
second level manager. Each of them have been involved in efforts to train their
operational staff in the "ways and means" of managing with a
collective bargaining agreement but everyone agreed it would take some time for
the historic mode of political and familial administration to end completely.
The most dramatic difference in
managing with a collective bargaining agreement is typically the existence of a
contract grievance process and relating to its activation by the bargaining
representative. The PESRA has a broad scope grievance section and, for the
first time in the federal sector, allowed for terminations, staffing, and
classification grievances to be adjudicated by a third party. The negotiated
grievance procedure in all the agreements has a three step internal review
process prior to any external consideration. All the employers indicated that
the number of grievances has increased significantly with the advent of
collective bargaining. In the past when an employee grieved they were likely to
be "in the dog house" and possibly pay a price on the job but that
type of reaction by a manager is no longer tolerated. Nothing better represents
the new relationship of rights under collective bargaining than the existence
and use of the grievance process. Data provided by the Commons and the Senate
shed some light on this point. The most telling illustration is that, for the
calendar year 1988, the House of Commons processed eighty-eight grievances
filed by employees represented by bargaining associations and only five from
employees not so represented. The largest number of grievances, about a quarter
of the total, dealt with disciplinary matters. A large number of others
concerned overtime work and contract interpretation disputes, items, like
discipline, that are common subjects for grievances. Sixteen grievances,
however, related to classification and staffing topics, the new grievance
agenda under the PESRA. Nearly half of them appeared to have reached
adjudication. Overall, of the eighty-eight grievances lodged in the Commons by
employees in bargaining units, fifty-eight (66%) were denied, three were upheld
and five partially upheld. Eight were withdrawn, usually at the first step on
the grievance process, and thirteen were referred to adjudication. Seven of ten
grievances were heard at the final level of the process, a proportion which
reflects both the percentage of denials as well as the early phase of
collective bargaining when a union is interested in showing employees the
virtues of the new system.11
The Senate had forty-three
grievances filed in 1988. More than half were contract interpretation or
disciplinary items. Eight involved staffing or classification disputes. The
Senate had a large number of grievances pending at the final level (40%) at the
close of 1988. Most of these related to the annual leave policy of the Senate
which undoubtedly will be affected by the arbitration ruling in the Library
Technicians case. While it is difficult to make any definitive comparisons
between the Commons and the Senate, given the features of the Senate data on
grievances, it seems the Senate was a little more prone to uphold the
grievances that were lodged than the Commons. Possibly this was tied to
difficulties in educating managers in the Senate concerning the nature of
contract administration. Pageau claimed it was sometimes more difficult to get
agreement in his management caucus than at the table.12
Comparable material on grievance
activity in the Library of Parliament was unavailable. Grievance activity has
increased significantly, according to Hugh Fothergill, and especially with
regard to position classifications where he reported sixty grievances were
filed and awaiting decision by adjudicators. The Alliance, apparently, decided
to test the adjudication mechanism with regard to classification grievances by
first using examples from the Library of Parliament. The initial case involves
the classification of the President of the Alliance local on Parliament Hill.
Hearings were held in late June and early July, but have been postponed until
November. Both sides have presented voluminous documentation in this benchmark
hearing with management trying to limit the adjudicator's decision to questions
of procedure while the union has argued for substantive determination by the
adjudicator. The adjudicator indicated that during the interim period he would
like to explore whether some agreement might be reached by the parties on the
datum of classification and thusly move the process along. Whatever happens, it
will have important precedent value in an exercise which contains very high
stakes for both sides.13
It is too early to tell what the
fall-out will be concerning managing within a collective bargaining framework
on Parliament Hill. Even in the beginning period, though, it is certain things
will not remain as they were. Grievance activity has increased dramatically and
is expected to rise further. Unions are pushing to attain through the
administrative process what they did not achieve at the table. Managers are
being held accountable in a new and different way. Policy and practice are
being tightened and the flying-by-the-seat-of-the-pants style of administration
is in decline. "Perhaps eighty percent of the previous ways of doing things
will remain," one negotiator speculated, "but the new twenty percent
will surely leave its mark on the administration of Parliament."
The Future of Parts II and III
of the Act
Finally, a few thoughts about the
unproclaimed sections of the Act. Part II applies the minimum standards of
Canada Labour Code as they relate to hours, wages, leave, other terms of
employment. It also references section 61.5 of Code which concerns wrongful
dismissals and provides for due process with enforcement by Labour Canada. Part
II applies to the party organizations of Parliament, as well as the employees
covered under part I. The administration of the code lies with Labour Canada.
Part III deals with the
occupational safety and health of the work place. The legislation applies the
same coverage that exists for private industry and the federal government to
Parliament with the exception that the Public Service Staff Relations Board,
rather than the Canada Labour Relations Board, inquires into the safety
officer's report which has been referred to it following an employee's refusal
to work, and also into employee complaints alleging prohibited employer
activity. Both parts bring other government agencies into the regulation of
parliamentary employment practices and both parts apply to the terms and
conditions of employment of the persons who work for the elected and appointed
members of the House and the Senate, the respective political organizations of
the two bodies.
Observers seem to agree that Part
II has not been implemented for the following reasons. First, the unions have
not pushed it because the employees they represent are already considerably
above the minimum standards with respect to the terms of the collective
agreements they have negotiated. It is largely an irrelevant issue with them,
they are prohibited under the Act from organizing the clientele affected by
Part II, and thus have little interest in applying pressure to put it into
effect. No other source exists, outside the employees themselves, to push for
proclamation. Parliament does not like its operations to be subject to outside
review. There is some negative reaction to the review exercised by the Public
Service Staff Relations Board under Part I, let alone review by Labour Canada.
Moreover, while the PESRA is here to stay, some MPs seem to have concluded that
bringing collective bargaining to Parliament was equivalent to "shooting
oneself in the foot." It is unlikely they would support further
restrictions on their autonomy.
Part III should be a different kettle
of fish. Dealing with the occupational safety and health of parliamentary
employees, it applies the same standards and nearly the same processes which
govern private industry and the rest of the federal government to Parliament.
The unions, now that negotiations are completed, are mounting a campaign to
proclaim Part III. NABET has sent a letter to each MP describing the risks of
working in the buildings of Parliament and are poised to launch a media
information blitz. Grievances dealing with health and safety concerns are on
the rise from all the bargaining units. The obstacle to implementation is the
nature of the problem, the Parliamentary Buildings themselves. Built in the
late nineteenth century, the costs of bringing them to present day construction
code and safety standards is staggering. Moreover, under Part III, Parliament,
theoretically, could be brought to a standstill if the respective regulatory
body (the Public Service Staff Relations Board) rules that workers should be
allowed to leave the job with pay following a safety officer's report that
conditions in various floors of the buildings endanger the health and safety of
employees.
Parliament has plans for a fifteen
year renovation program but they are not likely, given current budget constraints,
to proclaim legislation which will accelerate that commitment. Why did the
Commons include part II and III in the Parliamentary Employment and Staff
Relations Act? Did the members fully understand what they were doing at the
time? It seemed a good compromise between having the Canada Labour Code in its
entirety apply to employees of Parliament (as it would have if certification by
the Canada Labour Board had not been challenged) and having a completely
distinct labour relations policy embodied in a unique statute. But if the
government apparently decided not to proclaim parts II and II there is little
the employees or the unions can do about it.
What impact will the passage and
implementation of the Parliamentary Employment and Staff Relations Act have
on the rest of the federal sector governed currently by the Public Service
Staff Relations Act? It is doubtful if the conciliation/strike option under
the PSSRA will be amended on the basis of the experience on Parliament Hill
where strikes are prohibited. One reason is a common recognition of the
strategic placement of parliamentary employees that lends legitimacy to the
strike prevention aspect of the Parliamentary Employment and Staff Relations
Act but does not apply with the same force generally to the rest of the
federal sector.
Moreover, even under the PSSRA the
designation of key employees who would be prohibited from striking under that
procedure has become so broad in aspect that the potential of strikes occurring
is minimal. The expansion of interest arbitration and grievance adjudication
under the PESRA, however, may carry over to amendments being considered for the
PSSRA. If amendments to the PSSRA are adopted the broadening of the scope of
arbitration and adjudication would be among the changes. Negotiations between
the Treasury Board and the Public Service Alliance of Canada have not gone well
lately (the last round was settled in an extraordinary mediation session by the
Public Service Staff Relations Board) and many observers and participants think
something must be done now to make the system work more effectively. One
feature in most reform packages for the federal system, facilitation of
centralized bargaining, though, will not carry over to the Parliamentary side
where the embedded distinctions between the House and the Senate would prevent
any movement toward a common employer concept being embodied in legislation.
It will be interesting to see
whether some of the enriched negotiated benefits for parliamentary employees
(such as shorter work weeks and, particularly, longer annual leaves) will be
able to be negotiated by the Alliance and the Professional Institute of the
Public Service for other federal government employees. Moreover, the outcome of
the classification adjudications are being monitored closely by the
staff-relations community at the federal level. The outcome will have
consequences for the entire system.
Notes
1. Gary Levy, "Collective
Bargaining for Parliamentary Employees," Canadian Parliamentary Review,
9(2) Summer, 1986, p. l6; and personal interviews with P. Chodos, senior
counsel (labour relations), House of Commons of Canada, July 7, 1986; M.
Latreille, Director of Staff Relations and Compensation, House of Commons of
Canada, August 23, 1988; D. Broad, President of the Public Service Alliance of
Canada local union on Parliament Hill, June 14, 1989.
2. Levy, Ibid., pp. 16-17;
and personal interviews with D. Broad; R. G. Perron, Director Collective
Bargaining Branch of the Public Service Alliance of Canada, June 16, 1989; R.
Yaremko and L. David, negotiators with the Public Service Alliance of Canada
for contracts with the House of Commons, the Library of Parliament, and the
Senate, June 13, 1989.
3. Personal interviews with R. G.
Perron, R. Yaremko and L. David, June 16, 1989 and June 13, 1989.
4. G. T. Sulzner, "Canadian
Federal Labour-Management Relations: The Mulroney Difference", Journal
of Collective Negotiations, 15 (4) pp. 291-299, 1986.
5. Personal interview with P.
Chodos, July 7, 1986.
6. G. T. Sulzner, op. cit.,
pp. 293-294.
7. Chapter P-35, "The Public
Service Staff Relations Act, 1966- 67," Section 70 (1), Reproduced in J.
Finkelman and S. B. Goldenberg, Collective Bargaining in the Public Service:
The Federal Experience in Canada; Volume 2 (Montreal, the Institute for
Research on Public Policy, 1983) p. 782.
8. Agreement Between the House
of Commons and National Association of Broadcast Employees and Technicians,
CLC, June 15, 1987 to March 31, 1990, Article 16.11 "Temporary
Premium," p. 50.
9. The narrative on the Alliance
negotiations is a product of personnel interviews with P. Pageau, M. Latreille,
H. Fothergill, R. Yaremko, L. David, and D. Broad that occurred from June 12
through June 14, 1989.
10. Hearing Before the Public
Service Staff Relations Board RE: Application for Certification - Research
Officer and Research Assistant Sub-Groups in the Research and Library Services
Group, May 16, 1989, File No.: 442-L-12, pp. 16- 17.
11. 1988 Grievance Statistical
Report Breakdown: January 1 - December 31, 1988, House of Commons, mimeograph.
12. Senate Grievances: December
24, 1987 to December 31, 1988, Memorandum from O. Sauvé to G. Pageau.
13. Telephone interview with H.
Fothergill, July 12, 1989.