Category Archives: Canadian Health and Safety

Public sector employee protections watered down under bill C-4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Turning Back the Clock 50 Years: Bill C-4 and federal workers

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Larry RousseauLarry Rousseau Regional Executive Vice President, Public Service Alliance of Canada

Posted: 11/23/2013 7:39 am    http://www.huffingtonpost.ca

Stuffed into the 309-page Conservative budget implementation act, Bill C-4, that was tabled last month, are a slew of drastic changes to the federal labour relations system, which will affect the health and safety provisions, human rights protections, and collective bargaining rights of federal workers. As its number suggests, Bill C-4 is truly explosive.

On the health and safety front, the government is changing the Canada Labour Code to limit the rights of workers to refuse unsafe work, and also doing away with independent health and safety officers, relegating their responsibilities to political appointees of “the Minister.”

Meanwhile, another part of the bill will alter the Public Service Labour Relations Act (PSRLA) to prevent federal public service workers from accessing the Canadian Human Rights Commission and Tribunal over workplace discrimination complaints. Workers facing discrimination will instead have to file their complaint directly with their employer, which would have the power to promptly dismiss it for “being trivial, frivolous, vexatious or made in bad faith.”

Bill C-4 also guts public service collective bargaining by further modifying the PSLRA to allow the government to unilaterally determine which workers are essential and therefore forbidden from striking, without recourse to third party review. (At present, when the government and the union disagree on who is essential, either party can refer the matter to the Public Service Labour Relations Board, which ensures that neither side can exaggerate their assessment of who is essential or non-essential, a sensible system that has worked well over the years.)

Furthermore, Bill C-4 denies unions the right to refer a dispute to arbitration, unless more than 80% of workers are deemed essential. This means that the government would be able to declare 79% of workers in a bargaining group as essential, deny arbitration, and then force the remaining 21% minority to strike, in a classic attempt to divide and conquer workers in a given bargaining unit.
Arnold Heeney, the renowned Canadian diplomat and civil servant who led the Preparatory Committee on Collective Bargaining in the Public Service way back in 1963, noted in his memoirs that prior to free collective bargaining “there was great and growing dissatisfaction among government employees generally with the arbitrary and paternalistic system which continued to prevail…” As a consequence of this dissatisfaction and the stunning 1965 wildcat strike by postal workers, the government under Lester B. Pearson was forced to pass in 1967 the Public Service Staff Relations Act, which first codified the right to free collective bargaining as well as the right of public service unions to choose between strikes and third party arbitration to resolve disputes. And as Heeney further observed, though a number of politicians and labour leaders at the time predicted an explosion in the frequency of strikes, “the majority of civil servants chose the former route” of arbitration to resolve their disputes with government.

Indeed, the historical record has shown that major public service strikes have remained rather infrequent, but that the right of recourse to a strike has been critical to balancing the overwhelming power held by the government over public service workers. After all, the government not only has inherent power as the employer, it also has the power to set the rules of the game through legislation.

Yet today, we find ourselves with a government intent on turning back the clock almost 50 years by attempting to rig the labour relations playing field to the point where public service workers will be thrown back to that “arbitrary and paternalistic system” Heeney wrote about. And it would seem, of course, that the government couldn’t care less that the proposed changes to the PSLRA will effectively undermine the right to free collective bargaining under the Charter of Rights and Freedoms, which was affirmed by the Supreme Court in 2007.

Together, the dangerous, undemocratic and retrograde changes contained in Bill C-4 will directly impact some 800,000 Canadian workers subject to the Canada Labour Code in industries as diverse as rail, air, broadcasting, telecommunications and fisheries, in addition to well over 200,000 federal public service workers who fall under the PSLRA–approximately a million people in total.

Yet, the Conservatives have moved to limit debate in Parliament in an attempt to ram the bill through in the next couple of weeks. In fact, it has now emerged that labour changes in the bill were drafted secretly, without consulting law professors or labour-management experts (and certainly without consulting any of the unions representing federal workers).

It’s hard to imagine a reason for the callous health and safety changes, which needlessly endanger workers, but it’s clearly evident why the Conservatives are frustrating the collective bargaining process currently spelled out in the PSLRA.

Led by Treasury Board President Tony Clement, they have spent the last two years repeatedly attacking the pay and benefits of federal public service workers, claiming that these are out of line with the private sector. They say these workers, who deliver important quality public services like Old Age Security and food inspection to Canadians, are paid too much, but ignore that the Parliamentary Budget Officer recently reported that in the last decade–the latter part of which was shaped by the Conservative agenda–wages of federal workers have mostly just kept up with inflation. They also absurdly claim at every opportunity that federal public service workers take over 18 days of sick leave each year, again ignoring research from Statistics Canada demonstrating that this is simply not true.

The repetition of such claims–false as they are–serves the goal of creating a political atmosphere conducive to squeezing out from federal public service workers non-monetary benefits they negotiated over previous decades, often in lieu of their requests for raises that were said to be unaffordable, and therefore rejected, in the context of deficits during the Mulroney years, followed by pressures of debt repayment during the Chrétien years.

We’ve been down this road before. Just this past year, the government repeatedly overreached and tried to undermine free collective bargaining with public service workers only to be forced back to the table following action by unions. It did it with technical inspectors, whose many bargaining positions were later validated by a Public Interest Commission. It did it with foreign service officers, who then won a bad faith bargaining decision. And it did it with border services officers, who also won a court injunction against a forced vote. Bill C-4 undoubtedly presents an unprecedented assault on workers and the middle class, aimed at rewriting the very rules of the game. However, one at a time, the abusive sections of this law will be defeated.

Follow Larry Rousseau on Twitter: www.twitter.com/larryrousseau

Health & Safety At Work Under Threat With Harper Government Bill C-4: The Budget Implementation Act

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The lives of almost one million Canadian workers will be placed in danger as a result of cynical amendments that the Conservative government is making to the Canada Labour Code. Buried deep in the government’s latest budget bill tabled on October 22 are amendments to the health and safety provisions of the Code that have nothing to do with balancing the budget, and everything to do with putting workers’ lives at risk. Watch this video to learn more on how you can help stop this.

West Coast Domestic Workers’ Association report urges B.C. to protect its foreign workers

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by Carlito Pablo on Aug 14, 2013   http://www.straight.com

Even though Canada’s temporary-foreign-worker program comes under federal jurisdiction, provinces have the power to protect labourers, a B.C. lawyer says.

Ai Li Lim is the executive director of the West Coast Domestic Workers’ Association. On August 10, her group presented a report on temporary foreign workers at a well-attended forum at SFU Harbour Centre in downtown Vancouver.

“Yes, it’s a federal immigration program, but once the workers are here in B.C., they have to be—or they are, in theory—supported by B.C. employment standards,” Lim told the Straight during a break at the forum.

In the report, titled Access to Justice for Migrant Workers in B.C., the WCDWA outlined proposals to address “inequalities and gaps” in the program regarding the protection of workers. A number of these involve provincial legislation.

One recommendation is for B.C. to amend its Labour Relations Code to allow sectoral representation for workers in the absence of unions.

Another is for the province to look at Manitoba’s Worker Recruitment and Protection Act. This law provides a registration system for both employers and recruiters. It also prohibits the collection of fees from foreign workers in exchange for recruiters finding employment for them.

Although it is illegal in B.C. to charge workers for placing them in jobs, Lim explained that there are “loopholes” in the B.C. Employment Standards Act that allow recruiters to ask for “advertising” fees.

The WCDWA report also recommended strengthening employment standards to ensure a “more pro-active approach” to enforcement in sectors that rely on migrant labour.

Initial figures from Citizenship and Immigration Canada indicate that in 2012, 49,488 foreign workers arrived in B.C. out of a nationwide total of 213,516, the report noted. This makes the province the second-largest host of temporary workers, after Ontario.

Opinion: Politicians must step up and make rail safety a top priority

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By   William Brehl  | August 5, 2013  http://rabble.ca

 

Photo: flickr / mcwetboy

 

Transport Canada’s emergency safety directive issued following the Lac-Mégantic rail tragedy is welcome but more can be done.

For almost a decade we’ve been campaigning for better rail safety in Canada and the Harper government, to its credit (and that’s not easy for a union person like me to say), has returned some of the independent policing powers to Transport Canada after too much deregulation was granted by previous governments.

Still, the calamity of Lac-Mégantic occurred.

Obviously, more must be done to ensure safety, especially when tens of millions of Canadians live near main rail lines.

Transport Canada’s emergency directive is meant as a temporary fix while Ottawa drafts and passes into law new safety regulations.

The Transport Canada directive calls for limitations on leaving trains unattended and locomotives unlocked, minimum two-person crews when transporting dangerous materials, and clear direction on applying handbrakes to unattended locomotives with one or more cars attached.

As I said, it is a good start, but as someone who spent 20 years working on the track and the last 15 years representing 4,000 men and women who repair and maintain the track, there are three things that the temporary directive overlooked that I believe must be included in legislation.

Away from rail yards, no train should be left unattended for one minute, let alone one hour or more. Although the exact causes of Lac-Mégantic are still under investigation, the tragedy has already taught us this: Deadly and surprising things can happen when a locomotive is running and no one is around. Ending the practice of unattended locomotives will require better staff scheduling by managers.

Safety plans must be more transparent. Currently, federally regulated railways must file Safety Management Systems, or SMS, with Transport Canada. The SMS is intended to be a formal plan to build a culture of safety across the organization. SMS are not intended to be self-regulation, but in the everyday world, they are because a railway’s compliance is restricted to its own filings and infrequent surprise inspections from Transport Canada.

More Transport Canada safety inspectors are needed. Something is amiss when for every one Transport Canada rail inspector there are eight or nine air inspectors. Granted, when there is an air accident, it is usually a catastrophe with loss of life, but, as we’ve so tragically learned, calamity lurks on rail lines, too. The gap between the number of rail and air inspectors must be tightened.

Over the last 15 years or so, train derailments and accidents have been on the rise in Canada. In fact, there have been more than 10,000 of these incidents since 1999, according to transportation safety board statistics. Most are minor; some are major that force residential evacuations and some are catastrophic like Lac-Mégantic.

We cannot turn back the clock and bring back those innocent people in Lac-Mégantic. But we can look forward and create an environment of safety first.

Rail safety is something that must be maintained year in and year out, day in and day out. Wear and tear continually work its way on track and equipment. Short cuts to safety procedures must be avoided. Complacency as time passes since Lac-Mégantic must not occur.

Cynics might suggest that our decade-long safety campaign has to do with maintaining union jobs. But rail safety is not about jobs. It is about lives.

Millions of Canadians live close to rail lines and hundreds of millions of tonnes of dangerous commodities are shipped by rail through crowded urban areas every year. Our economy depends on rail traffic and our lives depend on it moving safely.

It is now time for every Member of Parliament, everywhere in Canada, regardless of party affiliation, to step up and do what is necessary to ensure that safety is given top priority. MPs need to look to their own constituencies, be aware of the possible dangers, and earn the trust their constituents have placed in them.

This fall when the House of Commons transport committee begins hearings it will be an important step toward ensuring no more tragedies like Lac-Mégantic happen again.

William Brehl is president of Teamsters Canada Rail Conference’s Maintenance of Way Employees Division, based in Ottawa, and a member of Transport Canada’s Advisory Council on Railway Safety.

Photo: flickr / mcwetboy