Submission by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

Submission by The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

To the Standing Committee on Public Safety and National Security

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 E

1919 April 2016 Act and other Acts and to provide for certain other measures

The United Steelworkers (USW) is one of the largest industrial unions in Canada with approximately 225,000 members. The USW’s Canadian membership is one part of an international union of more than 800,000 members from across North America.

We represent a diverse membership in almost every private sector industry, along with thousands of public sector workers in hospitals, nursing homes and universities. We also advocate for over 100,000 retired USW members and their spouses across Canada.

While many of our members are under provincial labour law regimes, the USW represents about 25,000 members in the federal jurisdiction, including workers employed in transportation, airport security, energy and telecommunications.

Labour legislation in all jurisdictions in Canada is important to our union, as it is to all labour organizations in the country. And we object to any laws that interfere with fundamental labour rights, like the right to join unions and collectively bargain.

As such, we are very concerned about how the Government of Canada responds and complies with the important Supreme Court of Canada decision Mounted Police Assn. of Ontario v. Canada (Attorney General) (2015), 249 L.A.C. (4th) 1, 380 D.L.R. (4th) 1, 2015 C.L.L.C. 220-010, 466 N.R. 199, 248 A.C.W.S. (3d) 440, 2015 CarswellOnt 210, 2015 CarswellOnt 211, 2015 CSC 1, 2015 SCC 1 (S.C.C.) (”MPAO”).

This is one in a series of decisions by our country’s highest court that clarify the scope of freedom of association and collective bargaining rights under the Charter of Rights and Freedoms. The USW was a plaintiff in the Saskatchewan Federation of Labour case directly, and observed MPAO case as well.

In MPAO, the Supreme Court affirmed that freedom of association protects the right to join and form associations, to do so in pursuit of other constitutional rights, and the right to join with others to meet on more equal terms the power and strength of other groups or entities.

“The right to a meaningful process of collective bargaining is therefore a necessary element of the right to collectively pursue workplace goals in a meaningful way ... A process that substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power is therefore inconsistent with the guarantee of freedom of association enshrined in s. 2(d).” [Para 71]

We provide the following comments on 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, and express our concern that, while it grants the right to join a union and collectively bargain with one hand, it erodes that right on the other through limits on association and the scope of bargaining.

1. LIMITS ON ASSOCIATION

a. All-Employee Bargaining Unit

Under the Bill in its present form, civilian RCMP members are excluded from the bargaining unit. There is no justification for excluding employees of the same employer from the bargaining unit, other than to erode the collective bargaining position of the union.

In the federal jurisdiction, the Canada Industrial Relations Board (CIRB) has a decades-old preference for broad-based, all-employee units. That policy is summarized in Trade of Locomotive Engineers v. Canadian Pacific Ltd., 1976 CarswellNat 450, 1976 CarswellNat 451, [1976] 1 Can. L.R.B.R. 361, 13 di 13, 76 C.L.L.C. 16,018, where the Board stated that the “the ideal bargaining unit” is an all-employee unit. See also BCT.Telus (Re), [2000] CIRB No. 73, [2000] C.I.R.B.D. No. 27, CIRB Decision No. 73, in which the Board described its “general preference for larger units and its general policy against fragmentation of the bargaining structure.”

We do agree, in principle, with the Bill’s exclusion of Officers in their capacity as “management”. However, the list of ranks that are considered Officers is set by the Governor in Council, and the number of officers in each rank is prescribed by the Treasury Board which means that the employer has the exclusive power to decide who is included and excluded from the bargaining unit as an Officer.

In most labour relations contexts, the question of managerial exclusions from the bargaining unit is decided by an independent labour board, and this should be the case with the RCMP.

We suggest a modification of the Bill to ensure that bargaining unit inclusions and exclusions are adjudicated by a third party and cannot be unduly manipulated by the employer.

b. Limits on Affiliation

Under Bill C-7, for an employee organization or council of employee organizations to certify a bargaining unit of RCMP members, the organization must, among other things, “not be affiliated with a bargaining agent or other association that does not have as its primary mandate the representation of police officers.”

This is a serious infringement on the freedom of association, and there are clearly less restrictive ways to deal with purported issue of “independence” of the bargaining agent.

For example, other police legislation sets out less restrictive criteria. In the Ontario Police Service Act a member of a police force is precluded from “becom[ing] or remain[ing] a member or a trade union or an organization that is affiliated directly or indirectly with a trade union, unless the membership is required

3 for secondary activities that do not contravene section 49 [which prohibits conflicts of interests etc.] and the chief of police consents.” However, the bargaining agent itself is not prohibited from affiliating with another trade union or organization.

In other words, for police unions in Ontario the only limit to their ability to affiliate applies only to individual members, and prevents them from actually joining another union without approval. However, section 120(3) of the Ontario Police Services Act would appear to rightly allow collaboration and affiliation with members of other unions or other labour organization. For example, this would seem to allow members of other organizations that are affiliated with a police union to provide it with advice and support. This could take the form of one-off support for a particular campaign or initiative, a broader affiliation or alliance where both unions maintain their independence, or even agreements to share and provide services.

Such relationships exist in many forms in the labour movement, both in Canada and abroad. For example, the USW and Unite the Union in Great Britain have joined together to form Workers Uniting, the first ever trans-Atlantic union. Workers Uniting is active in Canada, the United States, the United Kingdom and the Republic of Ireland. However, in doing so, neither the USW or Unite have given up or sacrificed their independence.

Other USW examples include strategic alliances with other unions in Canada, including ACTRA (The Alliance of Canadian Cinema, Television and Radio Artists) Unite Here and the Communications Workers of America. Again, these involve cooperation on issues, sharing of resources like member education, but do not affect the independence of either union nor do they affect the collective bargaining rights or relationships of either union.

c. Limits on Collective Bargaining

Bill C-7 sets out a long list of matters that cannot be included in a collective agreement. These are all limits on the right to collectively bargaining as set out under the Charter, and thus, in our submission, there must be a strong overriding justification for such restrictions.

Specifically, Bill C-7 limits the scope of collective bargaining on the following issues:

a. the Treasury Board’s right to determine categories of members;]

b. issues that would require legislative amendments, other than to appropriate money;

c. any terms that have or may be established under legislation related to staffing (the Public Service Employment Act), pensions and workers compensation;

d. law enforcement techniques,

e. transfers from one position to another and appointments,

f. appraisals,

g. probation,

h. discharges or demotions,

i. conduct, including harassment,

j. the basic requirements for carrying out the duties of an RCMP member or a reservist, or

k. the uniform, order of dress, equipment or medals of the Royal Canadian Mounted Police.

Limiting the scope of collective bargaining in such a broad and pervasive manner constitutes a significant infringement on the rights of RCMP officers as enshrined in section 2(d) of the Charter. In particular, we submit that the legislation is overbroad in precluding negotiation over transfers, promotions, discharges and demotions, conduct including harassment, the basic requirements for carrying out the duties of an officer and the equipment provided to officers.

In considering whether it is necessary to exclude these subjects from collective bargaining, consider that since a union of RCMP members will not have the right to strike, no disagreement over such issues could ever result in a work stoppage. Rather, such disputes would be referred to binding arbitration.

Further, Bill C-7 significantly limits the outcome of such binding arbitration; the Bill would prohibit an interest arbitrator from imposing:

a. terms that would affect the organization of the public service, the categories of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or the assignment of duties to, and the classification of, positions and persons employed in the public service

b. standards, procedures or processes governing the long list of matters that cannot be negotiated (see points (a) through (k), above).

All of these limits on bargaining, and on what can be imposed through an arbitration award, are limits on the freedom of association.

Some limits already exist in the federal public service, however, the limits set-out in Bill C-7 imposes are much broader, are contrary to the spirit of decision of the Supreme Court, and go beyond what is necessary for Parliament to achieve its objectives.

d. Factors in Binding Interest Arbitration

Bill C-7 provides that the factors already set out in the PSLRA to guide an arbitration board in imposing a collective agreement will also apply to the RCMP union. Section 148 of the PSLRA requires the arbitration board to consider:

a. the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians; and

b. Canada’s fiscal circumstances relative to its stated budgetary policies.

These provisions of the PSLRA were introduced by the previous government, and we submit that they have been maintained by this government as part of Bill C-7 is problematic. The fact that the legislation requires that the arbitrator give preponderant weight to these two factors significantly compromises the independence of the arbitrator and creates a built-in bias in the arbitration system. This second factor, in particular, has raised concerns from other federal public sector unions, as it requires arbitration boards to consider not only the government’s fiscal situation, but its own budgetary policies.

Beyond these mandatory factors, the arbitration board may consider:

a. relationships with compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

b. the compensation and other terms and conditions of employment relative to employees in similar occupations in the private and public sectors, including any geographical, industrial or other variations that the arbitration board considers relevant;

c. compensation and other terms and conditions of employment that are reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

d. The state of the Canadian economy.

In addition to these factors, which apply to all federal public sector unions, Bill C-7 imposes an additional constraint on arbitration of the terms of an RCMP collective agreement. It provides that the Board must consider “the impact of the determination on the operational effectiveness of the Royal Canadian Mounted Police” in imposing collective agreement terms.

This requirement is unique to Bill C-7 and is not required of other federal public sector employees.

Given the fact that RCMP members do not have the right to strike and the fact that bargaining impasses must be resolved by way of interest arbitration, the new factor which applies only to the RCMP

6 collective agreement is unnecessary and inappropriately bias the interest arbitration process in favour of the employer.

e. Right to grieve and adjudicate

The right to grieve issues and have them adjudicated is closely tied to the limits on the scope of bargaining.

Bill C-7 provides a narrow right for grievances and adjudications. RCMP members will only be allowed to present a grievance concerning the interpretation or application, in respect of the employee, of a provision of a collective agreement or arbitral award. The same limit will apply to the right to refer a grievance to adjudication.

Beyond that, when the government brings certain provisions of the Economic Action Plan 2013 Act, No. 2 into force, RCMP members will have the right to file individual grievances on discrimination issues under the Canadian Human Rights Act and refer them to adjudication without approval from their bargaining agent. This will replace their right to file complaints about workplace discrimination at the Canadian Human Rights Commission.

Grievances or complaints on all other matters are still dealt with under the procedures in the RCMP Act. This sets out different processes for grievances, harassment complaints and Code of Conduct breaches, but all of these processes present significant concerns about the lack of independent third party arbitration, as all of these processes end with the RCMP Commissioner or individuals appointed by the Commissioner. Moreover, these issues are all on the list of matters than cannot be negotiated into a collective agreement, and the procedures cannot be the subject of an arbitration award.

We therefore propose that Bill C-7 be amended to allow for independent third-party adjudication on these important matters.

We are also concerned that the limits placed on grievances and adjudication will lead to a multiplicity of proceedings, running counter to the trend in Canadian labour law which has seen more and more employment-related disputes adjudicated under the auspices of a single forum: grievance arbitration. (See, for example, Weber v. Ontario Hydro, 1995 CarswellOnt 240, 1995 CarswellOnt 529, 1995 SCC 108, [1995] 2 S.C.R. 929, [1995] L.V.I. 2687-1, [1995] S.C.J. No. 59, 125 D.L.R. (4th) 583, 12 C.C.E.L. (2d) 1, 183 N.R. 241, 24 C.C.L.T. (2d) 217, 24 O.R. (3d) 358, 30 Admin. L.R. (2d) 1, 30 C.R.R. (2d) 1, 56 A.C.W.S. (3d) 94, 6 W.D.C.P. (2d) 285, 82 O.A.C. 321, 95 C.L.L.C. 210-027, J.E. 95-1482, EYB 1995-67433; Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, 2003 CarswellOnt 3500, 2003 CarswellOnt 3501, 2003 SCC 42, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, 125 A.C.W.S. (3d) 85, 177 O.A.C. 235, 2003 C.L.L.C. 220-062, 230 D.L.R. (4th) 257, 308 N.R. 271, 31 C.C.E.L. (3d) 1, 47 C.H.R.R. D/182, 67 O.R. (3d) 256, 7 Admin. L.R. (4th) 177, J.E. 2003-1790, REJB 2003-47356). Not only is this out of step with modern labour relations, but it would create inefficiency, and the fragmentation of issues would frustrate the parties’ ability to resolve disputes short of adjudication. That, we submit, is not in anyone’s interests.

f. Workers’ compensation

Bill C-7 applies the Government Employees Compensation Act (GECA) to RCMP members. Notably, under the GECA, members will only be entitled to the compensation that they would receive from the workers’ compensation board in the province where they are usually employed. The amount of compensation is determined by the board or authority responsible for adjudicating the matter in that province.

It is not entirely clear how bringing RCMP members under the GECA will interact with the current system that the RCMP has for dealing with workplace injuries and illnesses. However, at the very least, it raises concerns about the equality of coverage between different areas of the country, in a context where RCMP members are put at significant risk in the course of their duties. CONCLUSION

In conclusion, as an international union with strong ties to other unions throughout North America and globally, the United Steelworkers is committed to the full expression of the right to freedom of association and collective bargaining. Bill C-7 in its present form limits these fundamental rights for RCMP officers in a manner that is completely unnecessary.

We ask that the Committee, in its clause-by-clause review of the Bill, remove the barriers outlined in this submission and ensure the spirit and intent of the recent Supreme Court decision is enshrined in the legislation by allowing RCMP officers to exercise their right to free and independent collective bargaining.