ISSN 1710-5080

Continued on page 2 �

In This Issue

� President’s Message .......... p.1

� The Fryer Report ............... p.1

� Task Force on ModernizingHuman ResourcesManagement .................... p.4

� The Public ServiceModernization Act and thenew Public Service LabourRelations Act ...................... p.5

� The Budget ImplementationAct ..................................... p.7

� The Poirier-ToewsCorrespondence ................ p.8

� The BC Health ServicesDecision ............................ p.9

� Conclusion – BeyondSpecial Legislation andCourt Actions .................. p.11

� National Executive........... p.12

� National Office Staff ....... p.12

Professional DialogueWhy are we unionizedafter all?

“What a question!” you will say.Have you thought about it lately? Aformer colleague of mine liked topoint out that unions are of dailyconcern only to those who areactive in them. They are somethingyou want in case of need. If youdon’t need them, you don’t want tohear about them. She was wrong.

We’re now in the year 2009 andit seems that all the major fightstook place during the last century:the 40-hour work week, the right toweekend rest, the right to retire,holidays, sick leave, maternity leave,

The Fryer Report: A Plan of ActionWorking Together in the

Public Interest - 2001The Advisory Committee on Labour Management Relations in theFederal Public Service released its final report on June 13, 2001.Entitled Working Together in the Public Interest, - “the FryerReport” represented the culmination of months of consultation andreflection on the dilapidated state of labour relations in the federalPublic Service. The Committee was a promising entity, that lookedfor total commitment and buy-in of all members. The membershipof the committee was a perfect balance of the interested parties –both union and management sides, and included many notewor-thy labour relations experts besides Mr. Fryer himself. The Com-mittee set itself immediately to the task of evaluating how well thesystem of labour-management relations created by the Public

Service Staff Relations Act served Canadians.

Vol. 5, no. 1, July 2009 Newsletter of the Canadian Association of Professional Employees

TM

Continued on page 3 �

While there were elements in theFryer Report that caused concernfor bargaining agents, taken to-gether the recommendations repre-

sented a potentially much im-proved structure for labour rela-tions. The more promising recom-mendations contained in the Fryer

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President’s Message, cont’d from page 1

2

parental leave, medical and dentalcare. Above all, do not think thatany one of these rights was volun-tarily and readily granted to us byour employers. Others before ushad to make demands and, in cer-tain cases, go on strike to extractthese concessions from employers.

Today, these union strugglesseem distant. Today’s reality is en-tirely different. Over the past sev-eral years, we have been witnessingdeteriorating employer-bargainingagent relations. Sound negotiationdoesn’t seem to be a priority for thecurrent government. Legislationenacted in the area of relations be-tween the employer and its employ-ees seems to have only one goal: theprogressive erosion of the rightsacquired over the course of unionhistory in Canada. Rarely have weseen an employer enact budgetaryimplementation legislation and tak-ing advantage of the situation todirectly attack its employees’ rights.

In the same breath, they put an endto years of efforts and colossal in-vestments to achieve a new classifica-tion standard; they also attack theright to negotiate freely and theright to be represented by one’s un-ion in the event of an equal pay com-plaint.

It is therefore no accident thatwe must now appear before Houseand Senate committees to assertyour rights, or even before thecourts, to contest the sharp turntaken by our politicians, with theaggressive connivance of certainhigh-ranking public officials. If ourrelations must be redefined, we willtake steps to assert your point ofview.

By giving an overview of ourrecent history, the current issue ofProfessional Dialogue aims to helpyou better understand the contextof relations between CAPE and theemployer. We hope that it will giveyou a feeling that unions are not anecessary evil but are in fact anessential service in increasinglydifficult circumstances. Happyreading! ●

CAPE President,Claude Poirier

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Continued on page 4 �

report included: recognition in thelabour legislation of collectiverights in the Federal Public Service;recognition that all matters thatarise in the work place require un-ion-management interaction; co-development of classification andstaffing; an impasse resolutionprocess for co-development initia-tives; streamlining of individualrights recourse processes; access toa third party for all recourse ac-tions; union access to policy griev-ances (for example, unions wouldnot need to wait and depend on amember to step forward in order tofile a grievance on the interpreta-tion of the collective agreement);portability of benefits betweenTreasury Board (TB) and separateemployers.

A major issue was the disputeresolution process suggested forcollective bargaining. It was antici-pated by most parties that the re-curring suspension of bindingarbitration was an indicator thatbinding arbitration would neverreturn to Public Service bargaining.The Fryer report suggested that theproposed Public Interest DisputeResolution Commission (PIDRC)should have the power to impose asettlement on the parties, similarlyto an arbitration panel.

Thus, the Fryer report ad-dressed mainly the deterioration ofunion management relations,which had been further damagedby the employer’s unilateralchanges to the Public Service StaffRelations Act and to the Public Serv-ice Employment Act since the incep-

tion of collective bargaining andunion rights in the Federal PublicService in 1967. These changes overtime had skewed the relationship ofemployer and bargaining agents tothe extent that it had become dys-functional, serving neither the in-terest of the unions nor the interestof the employer. Layer upon layerof focused quick fixes, addressingvery specific problems, had createda burdensome set of rules thatparalyzed managers and frustratedunion representatives. For the Fryercommittee, positive change meantavoiding this one-sided and short-sighted approach to change thathad plagued the process since 1967.

By giving an overview

of our recent history,

the current issue of

Professional Dialogue

aims to help you better

understand the context

of relations between

CAPE and the em-

ployer.

It is important to note that theFryer report followed a period dur-ing the 1990s when collective bar-gaining was suspended and 50,000jobs were cut from the core FederalPublic Service; labour relations ap-peared to be at their lowest. A fewyears earlier, in 1997, the PublicPolicy Forum (PPF) undertook toestablish a partnership with labourrelations specialists from a varietyof sources from within and outside

the federal government environ-ment, with the goal of examiningwhat they had previously identifiedas the origins of many of the prob-lems in the relationship betweenemployer and bargaining agents:the Public Service Staff Relations Act(PSSRA). The PPF’s report was amajor reason that the employer andunions were brought together todiscuss labour relations. The Advi-sory Committee on Labour Man-agement Relations in the FederalPublic Service, chaired by JohnFryer came into being in large partas a result of the PPF’s report.

When Mr. Fryer met with bar-gaining agents in the presence ofFrank Claydon (Secretary, TB) andMarcel Nouvet (Chief HR Officer,TB) in June 2001, he stated un-equivocally that the preconditionof positive change was that the em-ployer share power with bargainingagents. According to Mr. Fryer, theemployer needed to gain the trustof bargaining agents by addressingthe inequitable balance of powerdefined in the PSSRA.

In total, the report presentedthirty-three recommendations(which can be found in the final re-port, here: http://www.tbs-sct.gc.ca/report/fryer/wtpi-teip-1-eng.asp#rec ). The rec-ommendations were bound to-gether in the report as anindivisible plan of action. BothJohn Fryer and unions expressedserious concerns over any selectiveimplementation of the recommen-dations. Treasury Board reviewedthe recommendations, consultedminimally with unions, and com-

Continued from page 1

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Continued from page 3

municated their final view on thereport to the Task Force on Mod-ernizing Human Resources Man-agement in the Public Service - “theQuail Task Force”, which was re-sponsible for integrating this viewinto its change mandate.

At that time, we wrote: “Whatbecomes of the Fryer recommenda-tions will likely be determined bythe Task Force on Modernizing Hu-man Resources Management in thePublic Service, headed by RanaldQuail…” and indeed, any cautiousoptimism we may have felt at thattime was to be severely tested…

Task Force on Mod-ernizing Human Re-sources Managementin the Public Service- 2002While the printers were getting PartII of the Fryer report ready for pub-lic release, we learned that the em-ployer had struck a Task Force onModernizing Human ResourcesManagement in the Public Servicewhich was to be led by RanaldQuail, former Deputy Minister ofPublic Works and GovernmentServices Canada.

The mandate of this Task Forcewas to recommend a modern hu-man resources management policy,legislative and institutional frame-work in the hopes of updating thesystem and making the FederalPublic Service an employer ofchoice. The Task Force planned totable legislation in Parliament bythe summer of 2002. It was clear

that the “vision” of this Task Forcewas not to be limited by the existinglegislative framework or the prec-edents that governed human re-sources management. In fact, thegoal of the Task Force was to pro-pose new legislation to govern HRmanagement in the Federal PublicService. The legislative framework asit then existed consisted of the PublicService Employment Act, the PublicService Staff Relations Act and theFinancial Administration Act. All ofthese Acts were to come under thescrutiny of the Quail Task Force.

Union officials met with mem-bers of the Task Force on April 10 toexpress concerns that while the em-ployer had adopted an aggressiveapproach to these reforms, therewere to be no employee representa-tives on this Task Force. Ostensibly,this meeting was held to advise thebargaining agents of the trajectorythat the Task Force would take.

Legislation enacted in

the area of relations

between the employer

and its employees

seems to have only one

goal: the progressive

erosion of the rights

acquired over the

course of union history

in Canada.

Unions requested broader par-ticipation and the appointment ofunion officials to the Task Forceand its Advisory Committee. Addi-tional talks took place in early June,and on June 19, with the Clerk ofthe Privy Council, Mel Cappe, hisofficials and Ranald Quail. Unfor-tunately, none of these talks led to

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the appointment of union officials tothe Task Force or the Advisory Com-mittee or even to some format ofmeaningful consultation. These talksdid, however, clarify that the em-ployer would give unions an oppor-tunity to address the committee and/or present reports to the committeeup to August 31, 2001. In addition,the Task Force would accept inputfrom unions and management at theNational Joint Council Symposiumto be held in September of that year.But, the Task Force set limitations toits “consultations”: only one repre-sentative per bargaining agent atmeetings; no specialists from theunion side; documents were distrib-uted for the duration of the meetingthen collected at the end. Manyquestions were left unanswered.

The Task Force set for itself aus-picious goals, and in the end it an-nounced the following changes:

StaffingThe Quail Task Force announcedplans to modernize the staffing sys-tem, including shifting the focusaway from selecting the best quali-fied candidate to a more compe-tency based approach. The principleof relative merit would take a backseat to the principle of absolutemerit - and human resources man-agement was to be reformed to re-flect this. In the view of the TaskForce, managers lacked sufficientauthority to manage human re-sources effectively. In addition, thestaffing system was slow, costly andunresponsive. The Task Force statedits intentions of redesigning thissystem.

RecourseThe Task Force described the op-tions for recourse within the PublicService as fragmented, complex andconfusing. It had already acknowl-edged, as had the Fryer report, thatthe future redress mechanisms mayvery well be integrated and stream-lined into a single process foreverything pertaining to humanresources management. This meantthat the avenues of recourse, in-cluding those available through thePublic Service Staff Relations Actand the Public Service EmploymentAct, would have to be integratedinto a single, public service-widesystem. This would require somesignificant legislative changes.

Labour RelationsThe Task Force acknowledged thatthe relationship between unionsand the employer had been under-mined by a system that allowedunilateral government interven-tions, such as pay freezes, suspen-sion of bargaining and arbitration.The goal of the Task Force was todevelop a labour relations modelthat would encourage a more coop-erative employer/union relation-ship.

ValuesThe Task Force made known itsintention to shift away from thecurrent rules-based process-ori-ented system, and to sponsor a val-ues-based human resourcemanagement regime.

In sum, it can be said that theprincipal concern of the Task Forcewas putting together legislation

that would be accepted by DeputyMinisters. So it was with minimalconsideration of the views and con-cerns of the unions that the TaskForce on Modernizing Human Re-sources Management in the PublicService issued its report. As ex-pected, what followed were rapidchanges in legislation to implementthe recommendations of the TaskForce.

The Public Service Mod-ernization Act and thenew Public Service La-bour Relations Act -2003On September 2, 2003 CAPE Presi-dent Bill Krause appeared before theSenate’s Standing Committee onNational Finance and presented theAssociation’s view of Bill C-25, thePublic Service Modernization Act(PSMA), which was intended to“modernize employment and labourrelations in the public service”.

One of CAPE’s founding organi-zations, the Social Science Employ-ee’s Association (SSEA) hadappeared before the House of Com-mons Committee on Bill C-25 ear-lier that year. For this reason CAPEwas subsequently called to appearbefore the Senate’s Standing Com-mittee on National Finance on BillC-25, to share the concerns whichwe had expressed before the Houseof Commons Committee.

There were many concerns. ButCAPE focused on the most farreaching for the membership andrecommended 11 amendments to

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Continued from page 5

the Public Service Modernization Act,seven to that portion that created anew Public Service Labour RelationsAct, and 4 to the changes proposed tothe Public Service Employment Act.There were recommended amend-ments to the sections pertaining toconsultation and to co-development.There were amendments recom-mended to sections dealing with thearbitration process and the exclusionprocess. There were recommenda-tions against changes proposed bythe Bill to the staffing process. Agood example is the matter of co-development. CAPE argued that theemaciated form that the concept ofco-development took in the PublicService Modernization Act, whichflowed from the Report of the TaskForce on Modernizing Human Re-sources Management, was a smokescreen. The process of shared re-sponsibility and shared power in thedevelopment of policies, espousedby the Fryer Committee, was re-duced to just another form of con-sultation. But what was mostoffensive was that this new form ofconsultation would require large

commitments of resources from bar-gaining agents, with no sharingwhatsoever of the decision-makingpower on contentious issues. ThePSMA made it more difficult andmore costly for bargaining agentsto protect employees’ rights andpromote their interests. The under-lying theme of the PSMA was en-gagement without power.

Of major concern to CAPE andto its members were the changesproposed to the staffing system: thePSMA raised concerns about theprospects of career developmentwithin the public service. Not onlydid the Bill propose to eliminatethe employer’s obligation to reviewits internal resources before staffingfrom outside the public service, itmoved from the principle of ap-pointing the most meritorious toappointing the competent. In otherwords, it established a systemwhereby competitions would be-come a rarity and the bulk of ap-pointments would be made on thebasis of individual rather than rela-tive merit. So, who would be al-lowed to have a fair chance to builda career in the public service?

Rather than use objective criteria toencourage promotion of the bestqualified, it appeared that C-25would rest the entire appointmentsystem on subjective notions such asthe idea of “best fit”.

CAPE tried to convince themembers of the Senate Committeethat the new Public Service LabourRelations Act that was encrusted inthe Public Service Modernization Actand the proposed changes to thePublic Service Employment Act werenot going to improve relations. Theywere realigning relations so that anyprogress that unions had made forthemselves over the previous 36years would be eliminated com-pletely.

In spite of CAPE’s efforts andthe efforts of other bargainingagents including the Public ServiceAlliance of Canada and the Profes-sional Institute of the Public Serviceof Canada, the PSLRA receivedRoyal Assent in November 2003with none of the amendments pro-posed by unions to the Bill authoredby the employer. The imbalance ofpower that had been noted by thePublic Policy Forum and by theFryer Committee did not disappear.In fact, it was highlighted by thepreparation of the Bill by the TaskForce, the debates on ParliamentHill and the lack of union effect onthe legislation. Moreover, the newlabour law provisions contained inthe PSLRA accentuated that veryimbalance in power.

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7

Fast Forward: TheBudget Implementa-tion Act, the Expendi-ture Restraint Act andthe Public Sector Equi-table CompensationAct - 2009Restructuring the balance of powerin order to accentuate and enshrinein legislation the employer’s over-riding power is only one way thatemployer cum legislator imposesits will. Similarly to what it did inthe 1990’s with the suspension ofbargaining, Treasury Board decidedto strike down the right to bargainyet another time in 2009, with alittle more subtlety this time, withthe Expenditure Restraint Act(ERA), part 10 of Bill C-10 or theBudget Implementation Act. If theERA wasn’t enough, the Public Sec-tor Equitable Compensation Act(PSECA) or part 11 of Bill C-10,was thrown in for good measure.

The ERA was put together insuch a way that, while it did notprohibit bargaining of all matters,it effectively defined the salary in-creases of unionized public serv-ants for a period of five years

without the opportunity to negoti-ate. No collective agreement orarbitral award may provide as aresult of the ERA for increases torates of pay that are more than:

2.5% for fiscal year 2006-2007;2.3% for fiscal year 2007-2008;1.5% for fiscal year 2008-2009;1.5% for fiscal year 2009-2010;1.5% for fiscal year 2010-2011.

Rarely have we seen

an employer enact

budgetary implemen-

tation legislation while

profiting from the oc-

casion to directly at-

tack its employees’

rights.

And, to add insult to injury forCAPE in particular, the ERArenders moot an understandingregarding the salary impact of theimplementation of the EC conver-sion on CAPE’s EC members.CAPE had reached an understand-

ing with the employer that furthernegotiation of EC pay scales wouldtake place, as required, once theimpact of EC conversion becameclearer. This agreement goes backto 2003, when it was understood byCAPE and Treasury Board that theEC conversion would eventuallyrequire negotiating rates of pay fora conversion. The 2006 round ofcollective bargaining was to be theEC conversion round with bargain-ing of EC rates of pay. But, in 2006the parties could not bargain be-cause the relevant data had not yetbeen finalized by the employer.

At that time CAPE threatenedto take the employer to the PublicService Labour Relations Boardbecause the employer had advisedthe Association that it was not in aposition to negotiate the rates ofpay for the EC conversion. Theresult was a one year collectiveagreement that would allow theemployer time to better prepareitself to negotiate the EC conver-sion rates of pay.

In the following round of bar-gaining, in 2008, CAPE tabled aconversion pay proposal. TreasuryBoard offered its “final” offers to allbargaining units, and has sincecontended that the EC pay conver-sion issue did not exist beyond2001. To settle the matter to itsown satisfaction it passed the Ex-penditure Restraint Act that makesno provision for pay restructuringas a result of classification conver-sion for CAPE. It does, however,make this provision for the Canadaborder services, allowing a restruc-

Continued on page 8 �

� TOC8

turing of rates pay as a result of theCBS’s classification conversion.

The Budget Implemen-tation Act passedwithout amendmentin the House of Com-mons.

Up to this point in our historywith the employer, we found our-selves affected to the same degree asmany, if not all, other federal gov-ernment bargaining agents. Butnow, the EC group has been singledout as the only group going througha conversion without a right to bar-gain the restructuring of rates ofpay. In this particular case we havethe unpleasant distinction of beingthe first bargaining agent to un-dergo a classification conversion,while not addressing the matter ofpay at the bargaining table.

Prior to the legislation beingpassed, CAPE made representationat the House of Commons beforethe Standing Committee on Fi-

nance. CAPE President ClaudePoirier appeared before the Com-mittee on February 23, and arguedthat the EC conversion should betreated the same as the classifica-tion conversion at the Border Serv-ice Agency. Mr. Poirier providedthe Committee with a proposal foran amendment that would exemptEC classification conversion fromconstraints. It was the view of theActing Chair of the Committee thatCAPE’s proposed amendmentwould introduce new elements toBill C-10 and as such was not re-ceivable.

Over the past several

years, we have been

witnessing deteriorat-

ing employer-bargain-

ing agent relations.

The next day, Treasury Boardofficial Hélène Laurendeau steppedinto the breach and stated: “I had avery quick look at the amendmentand I can confirm to the committeethat there was no oversight on howthe groups were described. Theremay be some claims by variousgroups, but the ones that are de-scribed currently in the Restraint Actare properly described. The excep-tions addressed the Border ServicesAgency only, because they had a clas-sification reform that needed to beimplemented.” After second reading in the Senate,Bill C-10 was referred to the Sen-ate’s Standing Committee on Na-tional Finance. CAPE sent a requestto appear before the committee. The

Committee chose not to invite anywitnesses except a selection of gov-ernment officials, including HélèneLaurendeau. CAPE was not invitedto appear. The Bill received RoyalAssent on March 12.

The Poirier-ToewsCorrespondence -2009In the interim, a correspondencewas established between CAPEPresident Claude Poirier and thePresident of the Treasury Board VicToews in January 2009. CAPE’spriority was to address what was atthe time the matter of an antici-pated legislated prohibition on bar-gaining rates of pay for the ECconversion. The letters present suc-cinctly both CAPE’s position andthat of the Treasury Board. The ex-change began with a letter from thePresident of CAPE dated January15, the response from Vic Toewsdated February 13, to which Presi-dent of CAPE responded in a letterdated March 23, 2009. In this lastmissive, M. Poirier did not mincewords:

“Mr. Toews, I regret that youdeclined my request to meet earlyin January and that your letterreached us in an untimely man-ner. We would have been able toseriously discuss, in a timely fash-ion, the negotiation of pay scalesfor the EC conversion. You wouldhave been better informed of thefacts. You would have subse-quently been able to ask youradvisers more pointed questions.You could have added EC conver-sion to the list of pay scales to be

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revised pursuant to the Expendi-ture Restraint Act. We wouldhave been able to avoid a graveinjustice caused in large part, itseems, by a very serious error, forwhich you are ultimately respon-sible, regardless of the source ofyour information.

It seems obvious to us that thecontent of the Expenditure Re-straint Act was drafted as di-rected by Treasury Board, as it isTreasury Board who is responsi-ble for the negotiation of collec-tive agreements. Likewise, itseems obvious to us that you de-liberately chose to not excludeEC pay scale negotiation fromthe control measures. On theother hand, you deliberatelychose not to apply these controlsto the negotiation of pay scalesfor the conversion of employeesat the Canada Border ServicesAgency.

Hélène Laurendeau, your repre-sentative, chose her words verycarefully when she appeared be-fore the House of CommonsStanding Committee on Finance.Ms. Laurendeau told the Com-mittee that Canada Border Serv-ices Agency employees wereexempted because their job clas-sification would be revised dur-ing the control period and thatTreasury Board had not forgot-ten any exemptions when theBill was drafted. She never di-rectly addressed the questionabout the EC conversion, theobject of the amendment whichshe was there to explain. Whatdoes Ms. Laurendeau have to say

about the EC job classificationreform? Was this another erroron your watch?

Ultimately, Mr. Toews, you areresponsible for what Ms.Laurendeau says, as well as theunfair consequences of the Actrelative to the EC group. In myview, the rationale provided inyour letter for your positionseems today an after-the-factrationalization that borders onbad faith and dishonesty…”

The BC Health Serv-ices Decision and theFuture of Labour Re-lations in the FederalPublic Service - 2007On June 8, 2007 the Supreme Courtof Canada released its landmarkdecision in BC Health Services,where the Court recognized for thefirst time that the right to collectivebargaining is constitutionally pro-tected by the freedom of associa-tion guarantee in s. 2(d) of theCanadian Charter of Rights andFreedom. As the Court concluded,the right to collective bargainingcannot be reduced to a mere rightto make representations. Bargain-ing agents must be able to bring tothe bargaining table matters of im-portance in the work place. Thenecessary implication is that if pro-hibited matters cannot be adoptedinto a valid collective agreement,then the process of collective bar-gaining becomes meaningless withrespect to them.

As a result of the Court’s deci-sion, CAPE has concluded and ar-gued that restrictions imposed by

the Public Service Labour RelationsAct on bargaining violate the guar-antee of freedom of associationcontained in the Charter. It arguedthat Treasury Board can no longerrefuse to bargain matters of impor-tance to public service employeessimply because it deems that theyare covered by the Act’s prohibi-tions. Nor can the employer legis-late unilaterally changes to the verynature of its relation to bargainingagents.

Historically, federal public sec-tor employees have strongly op-posed restrictions on their ability

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Continued from page 9

to bargain over pensions, classifica-tions and staffing, and on their in-clusion in negotiated collectiveagreements. In fact, they were oftenforced to fight in order to containthe employer’s arbitrary broadeningof the definition of the restrictedareas at the bargaining table.

During the most recent roundof bargaining, despite the SupremeCourt of Canada ruling, the gov-ernment still refused to bargain inrespect of critical issues, such aspensions and job classification sys-tems, and instead purported to relyon the existing legislative restric-tions. As a result, the ProfessionalInstitute of the Public Service(PIPSC) and CAPE decided that alegal challenge was necessary to vin-dicate the constitutional rights oftheir members.

In May of 2008, PIPSC andCAPE jointly launched a constitu-tional challenge seeking to invali-date provisions contained in thePublic Service Labour Relations Actprohibiting federal employees fromnegotiating protections and im-

provements in a variety of areas,including pensions, employee clas-sifications and staffing.

The EC group has

been singled out as the

only group going

through a conversion

without a right to bar-

gain the restructuring

of rates of pay.

In their respective affidavits,the unions argue that the legislativerestrictions at issue fundamentallyinterfere with their ability to engagein protected associational activityand that Government has substan-tially interfered with the ability ofPIPSC and CAPE members to en-gage in collective bargaining byenacting these limitations. At issuemost specifically are Sections 7,113, 150 and 161 of the PSLRA.

Section 7 of the PSLRA dealswith classification. It reads: Nothingin this Act is to be construed as af-fecting the right or authority of theTreasury Board or a separate agencyto determine the organization ofthose portions of the federal publicadministration for which it repre-sents Her Majesty in right of Canadaas employer or to assign duties toand to classify positions and personsemployed in those portions of thefederal public administration. Sec-tion 7 of the PSLRA directly in-fringes on collective bargaining byremoving from the bargaining tableany issues concerning the organiza-tion of the federal public service,

the assignment of duties and theestablishment of classifications,and instead leaving this to unilat-eral employer determination.

Section 113 prohibits, amongother things, bargaining terms andconditions that have been or maybe established under the PublicService Employment Act and thePublic Service Superannuation Act.So staffing and related matters areout; and so is everything that couldbe related directly or indirectly topensions. Imagine for a moment adifferent regime, one that re-spected Charter rights, a more ra-tional regime. Imagine CAPEarguing at the bargaining table thatEC and TR members tend to jointhe public service at a later age inlife for various reasons that servethe interest of the employer. Imag-ine CAPE proposing that the man-ner in which pensionable service iscalculated be modified in order toallow its members to benefit fromthe pension plan as much as a per-son joining the public service atage 18. Whether such a proposalwere to make its way into CAPEnegotiated collective agreements isone thing; an other is simply thepossibility to bring the matter tothe bargaining table and to have arational discussion that potentiallycould lead to an improvement inthe terms of the pension plan forCAPE members, enshrined in theircollective agreements. But for now,this is impossible.

Sections 150 and 161 precludebringing to conciliation and arbi-tration the matters of pension,classification and staffing.

Taken together these provi-sions of the PSLRA represent sev-

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eral restrictions on the Charter rightsof CAPE’s members and on the Char-ter rights of every single federal pub-lic service employee. The relation ofunions to employer outlined in thePSLRA and in its predecessor thePSSRA is skewed in favour of the em-ployer. Major areas of work placeissues are determined unilaterally bythe employer because they are pro-hibited at the bargaining table. Sothe Act must change: hence the Char-ter challenge.

Conclusion: BeyondSpecial Legislationand Court ActionsThe Charter challenge launched byCAPE and PIPSC go to the actualconditions that define the relationof employer to bargaining agents inthe Federal Public Service. It chal-lenges the structure of the relation-ship which has existed essentially inits current form from the beginningin 1967. Moreover, recent changesbrought about with the Public Serv-ice Modernization Act were notmeant to establish a balance and didnot achieve a balance. It exacer-bated, if anything, the skewed rela-tionship in favour of the employer,and reinforced the power structurethat gives to the employer unfet-tered control over so many impor-tant aspects of the work place. Butin addition to the fundamentalproblem of a relationship that isskewed, every now and then the em-ployer has gone to Parliament andasked that Parliament take extraor-dinary action in order to addressmatters regarding the employer’srelation to public service employeesand their representatives.

Taking a look back in recenttime, we see that the Budget Imple-mentation Act is only one of severalinitiatives of the employer to uni-laterally impose conditions on pub-lic service employees over the past16 years. Since 1993, the employerhas gone to Parliament and hassuccessfully convinced Parliamentto legislate in succession the exclu-sion of public service employeesfrom the right to negotiate, a wagefreeze, the suspension of collectivebargaining, the suspension of arbi-tration, the return to work of strik-ing public service employees, theappropriation of the $30 billionsurplus generated by the pensionregimes of RCMP, Armed Forcesand public service employees, theelimination of various protectionsin the PSSRA, a weakening of theredress process on staffing actions,unilaterally set wage adjustments,and the imposition of a pay equitysystem that fines unions for helpingtheir members. And the list goeson. Treasury Board Secretariat, un-able to establish and nurturehealthy relations with public serv-

ice bargaining agents, has used Par-liament and legislation to impose itsmanagement regime.

The only way to improve rela-tions at this time in our history isto assert rights recognized underthe Charter, further to the BCHealth Services decision. The “re-gime” needs to be challengedthrough strategically selected courtactions that will establish in turn anew landscape, a new and balancedrelationship. Once a balance is es-tablished, it will be possible for bar-gaining agents and the employer tosit down together and work as realpartners, talk through problems,identify converging interests, re-spect differences and get to solu-tions that last through theinevitable crises of the public serv-ice work place. ●

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Canadian Association of Professional EmployeesNational Office Staff

Professional Dialogue is the newsletter of the

Canadian Association of Professional Employees,

representing approximately 12,000 federal

professional employees across Canada.

100 Queen Street, 4th Floor

Ottawa, Ontario K1P 1J9

(613) 236-9181 • 1-800-265-9181 • Fax: (613) 236-6017

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Professional DialogueTM

Canadian Association of Professional EmployeesNational Executive Committee

Claude Poirier President cpoirier@acep-cape.caClaude Danik Executive Director cdanik@acep-cape.caJean Ouellette Director of Labour Relations jouellette@acep-cape.caDonna Martin Manager of Administration Services dmartin@acep-cape.caHélène Paris Research Officer hparis@acep-cape.caDeborah Fiander Communications Officer dfiander@acep-cape.caIsabelle Borré Education Officer iborre@acep-cape.caSylvie Richard Information Officer srichard@acep-cape.caLiana Griffin Professional Services Assistant lgriffin@acep-cape.caSandra Wensink Finance Officer swensink@acep-cape.caSylvie Francoeur Finance Officer Assistant sfrancoeur@acep-cape.caClaude Archambault Labour Relations Officer carchambault@acep-cape.caKaren Brook Labour Relations Officer kbrook@acep-cape.caIsabelle Germain Labour Relations Officer igermain@acep-cape.caLuc Gervais Labour Relations Officer lgervais@acep-cape.caBertrand Myre Labour Relations Officer bmyre@acep-cape.caLionel Saurette Labour Relations Officer lsaurette@acep-cape.caAllan Stead Labour Relations Officer astead@acep-cape.caAleisha Stevens Labour Relations Officer astevens@acep-cape.caClaude Vézina Labour Relations Officer cvezina@acep-cape.caAnita Bangiricenge Administrative Clerk abangiricenge@acep-cape.caMark Courty Administrative Clerk mcourty@acep-cape.caChantale Lebel Administrative Clerk clebel@acep-cape.caJulie Parisien Administrative Clerk jparisien@acep-cape.caSharon Wilson Administrative Clerk swilson@acep-cape.ca

Minutes of all CAPE committee meetings can be found on the CAPE website at www.acep-cape.ca

Claude Poirier President CAPE 613-236-9181, 1-800-265-9181Maria Mascaro EC/LoP Vice President Treasury Board of Canada 613-946-9809Ian Dawson EC Director Public Works and Government Services 604-775-9356Bonnie Gauvin EC Director Fisheries and Oceans 709-772-4974Carl Lakaski EC Director Public Health Agency 613-954-8645Damian Londynski EC Director Human Resources and Skills Development 819-953-7555Sean Maguire EC Director Indian and Northern Affairs 819-997-9139André Picotte TR Director Public Works and Government Services Translation Bureau 819-994-1288Marc-André Pigeon LoP Director Library of Parliament 613-992-6935Stan Spak EC Director Agriculture and Agri-Food Canada 204-983-5640Geneviève ThibaultGosselin TR Director Public Works and Government Services Translation Bureau 450-361-9485Lee Whitmore EC Director National Defence 613-995-6244Claude Danik Executive Director CAPE 613-236-9181, 1-800-265-9181Jean Ouellette Director of Labour Relations CAPE 613-236-9181, 1-800-265-9181Donna Martin Manager of Administration Services CAPE 613-236-9181, 1-800-265-9181

Ce document est également disponible en français. Si vous désirezrecevoir une version française d’Entre professionnels, veuillezcommuniquer avec le bureau national de l’ACEP.