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Submission by Nunavut Employees Union to the Public Service Act - Steering Committee

Collective Bargaining
March 28, 2007

The NEU proposes the following changes to the Public Service Act (PSA) to bring the act into line with best practices in Canadian jurisdictions.

1. Labour Relations Board
The PSA should establish a Labour Relations Board with, at least, the following powers and duties:

Make regulations of general application respecting

- the determination of units appropriate for collective bargaining;
- the certification of unions as bargaining agents for bargaining units;
- the conduct of representation votes;
- the hearing or determination of any application, complaint, question, dispute or difference that may be made or referred to the Board;
- the membership of any employees in a union,
- any objection by employees to the certification of a union, or
- any reference by employees that they no longer wish to be represented by a union
- the criteria for determining whether an employee is a member of a union;
- the circumstances in which evidence may be received by the Board as evidence that any employees wish or do not wish to have a particular union represent them as their bargaining agent;
- the conditions for valid strike or lockout votes;
On application by a union or employer give declaratory opinions.
The Board should have the power in any proceeding before it: to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath;

- to order pre-hearing procedures;
- to administer oaths and solemn affirmations;
- to receive and accept such evidence and information on oath, affidavit or otherwise whether admissible in a court of law or not;
- to examine documents forming or relating to the constitution or articles of association of a union or council of unions that is seeking certification,
- to compel any person to provide information or produce the documents and things that may be relevant to a matter before it, after providing the parties the opportunity to make representations;
- to require the employer to post and keep posted in appropriate places, or to transmit by any electronic means that the Board deems appropriate, any notice that it considers necessary to bring to the attention of any employees any matter relating to a proceeding;
- to order, at any time before the proceeding has been finally disposed of by the Board, that
  a representation vote
- entry onto the premises of an employer for the purpose of conducting representation votes during working hours;
- to adjourn or postpone the proceeding from time to time;
- to defer deciding any matter, where the Board considers that the matter could be resolved by arbitration or an alternate method of resolution;
- to abridge or extend the time for doing any act, filing any document or presenting any evidence in connection with a proceeding;
- to extend the time limits for instituting a proceeding;
- to amend or permit the amendment of any document filed in connection with the proceeding;
- to add a party to the proceeding at any stage of the proceeding;
- to summarily refuse to hear, or dismiss, a matter for want of jurisdiction or lack of evidence; and
- to decide for all purposes any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
  - a person is an employer or an employee,
  - a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,
  - a person is a member of a union,
  - an organization or association is an employers' organization, a union or a council of unions,
  - a group of employees is a unit appropriate for collective bargaining,
  - a collective agreement has been entered into,
  - any person or organization is a party to or bound by a collective agreement, and
  - a collective agreement is in operation.

2. Compulsory arbitration
Compulsory arbitration has been a recognized method of preventing work stoppages where negotiation and voluntary dispute resolution methods fail. It began in 1906 in Australia and has been used in New Zealand, Scandinavia and most recently in Alberta. It involves turning to an independent third party Board to impose a settlement where other voluntary methods have failed.

The literature states that compulsory arbitration is most appropriate in instances where a work stoppage would affect the public interest, typically in the case of a stoppage by government employees. It is also appropriate where one party holds a disproportionate amount of power in the collective bargaining relationship, as is the case with government. Finally, it is appropriate where a work stoppage may have damaging consequences for the growth of a fragile economy, as was the case in Western Australia in 1906 and, the NEU asserts, is the case in Nunavut today.

The GN has stated as a fact that the government will never relinquish its power to control the public purse and views arbitration as a delegation of that power. Thomas Berger has recently commented on that position as taken by the Government of Canada in the the NLCA Implementation Contract negotiations.

To the extent that Canada has refused its consent [to refer issues to arbitration] on the ground that to agree to arbitrate would usurp Parliament's prerogatives, I think it has acted misguidedly. I recommend that in future a request for arbitration should be allowed to go forward unless it involves a vital question of policy with implications extending beyond the implementation of the NLCA. The mere fact that Canada believes the issue at stake should not be determined by a third party is not a sufficient reason to deny adjudication of important questions, ...[1]

The refusal to consider arbitration is a unilateral decision by GN to ensure that in any collective bargaining process it will be able to exercise its unique economic power over its employees. The position taken by GN is the antithesis of Inuit Qaujimajatuqanginnut principles or intent of its own policy document, Pinasuaqtavut.

The NEU expects that, incompliance with Pinasuaqtavut that the GN should incorporate into the PSA compulsory arbitration as an alternative to forcing a work stoppage.

The arbitration should be conducted bya board comprised of three members, one of who is chosen by the union, one by the GN and a chair agreed to by both members.

3. Unfair labour practices
The existing PSA provides for collective bargaining "in good faith" but it is silent about what good faith looks like. All Provincial jurisdictions as well as the Canada Labour Code and the Public Service Staff Relations Act describe in detail a range of practices which constitute bad faith.

Currently, the PSA sets out range of offences and penalties which apply to employees but the Act is silent as to the duties and prohibitions which apply to the employer. The NEU proposes that, in order to achieve a standard of fairness and good faith comparable to other Canadian jurisdictions, the Nunavut PSA should include a Part prohibiting unfair labour practices. For greater certainty the Act should include a list of the most common unfair labour practices. These should include:

Employer:

Interference with union

GN nor any person acting on behalf of GN shall:
- participate in or interfere with the formation or administration of the employees union or the representation of employees by the union; or
GN is deemed not to participate or interfere by reason only that they:
- permit an employee or representative of the union to confer with them during hours of work or to attend to the business of the union during hours of work without any deduction from wages or any deduction of time worked for the employer,
- provide free transportation to representatives of the union for purposes of collective bargaining, the administration of a collective agreement and related matters, or
- permit the union to use their premises for the purposes of the union;
- contribute financial support to any pension, health or other welfare trust fund the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees; or
- express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

Use of replacement workers
- GN nor any person acting on behalf of GN shall use replacement workers doing a work stoppage.

Discrimination in employment
GN nor any person acting on behalf of GN shall:

- refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person:

is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of a union or participates in the promotion, formation or administration of a union,
has been expelled or suspended from membership in a union for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the union as a condition of acquiring or retaining membership in the union,
has testified or otherwise participated or may testify or otherwise participate in a proceeding on behalf of the union,
has made or is about to make a disclosure that the person may be required to make in a proceeding on behalf of the union,
has made an application or filed a complaint on behalf of the union, or
has participated in a strike that is not prohibited or exercised any right as a union member;

- impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right accruing to them as a union member;
- suspend, discharge or impose any financial or other penalty on an employee, or take any other disciplinary action against an employee, by reason of their refusal to perform all or some of the duties and responsibilities of another employee who is participating in a strike;
- deny to any employee any pension rights or benefits to which the employee would be entitled but for:

the cessation of work by the employee as the result of a legal strike, or
the dismissal of the employee as the result of any permitted actions on behalf of the union;

- cancel or threaten to cancel a medical, dental, disability, life or other insurance plan, whether administered by the GN or otherwise, that benefits employees;
- seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a union or to refrain from

testifying or otherwise participating in a proceeding,
making an application or filing a complaint;

- suspend, discharge or impose any financial or other penalty on a person employed by them, or take any other disciplinary action against such a person, by reason of that person having refused to perform an act not prohibited by statute.

No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a union.
Any person or organization may make a complaint in writing to the court (Board?) that GN or any person acting on behalf of GN has engaged in an unfair labour practice.

Union:

Unfair Labour Practices by Union
· No union or person acting on behalf of a union shall:

- seek to compel an employer to bargain collectively with the union if the union is not the bargaining agent for a bargaining unit that includes employees of the employer;
- bargain collectively for the purpose of entering into a collective agreement or enter into a collective agreement with the employer in respect of a bargaining unit, if that union or person knows or, ought to know that another union is the bargaining agent for that bargaining unit;
- participate in or interfere with the formation or administration of an employers' organization;
- except with the consent of the employer of an employee, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a union;
- require an employer to terminate the employment of an employee because the employee has been expelled or suspended from membership in the union for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the union as a condition of acquiring or retaining membership in the union;
- expel or suspend an employee from membership in the union or deny membership in the union to an employee by applying to the employee in a discriminatory manner the membership rules of the union;
- take disciplinary action against or impose any form of penalty on an employee by applying to that employee in a discriminatory manner the standards of discipline of the union;
- expel or suspend an employee from membership in the union or take disciplinary action against or impose any form of penalty on an employee by reason of that employee having refused to perform an act that is contrary to statute; or
- discriminate against a person with respect to employment, a term or condition of employment or membership in a union, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person:

has testified or otherwise participated or may testify or otherwise participate in a legal proceeding on behalf of the employer,
has made or is about to make a disclosure that the person may be required to make in a legal proceeding, or
has made an application or filed a complaint on behalf of the employer.

Any person or organization may make a complaint in writing to the court (Board?) that a union, a person acting on behalf of a union or an employee has engaged in an unfair labour practice;

4. Housing
Housing in Nunavut in Nunavut is an integral part of the employee compensation package. A prohibition on the discussion of housing (such as section 41(7) of the current PSA) should not be included in the proposed revision of the PSA.

5. Essential Services
The definition of an essential service in the current PSA is broader than necessary to achieve the objective of ensuring the health and safety of the public and to prevent damage and deterioration of plant and equipment. The Canada Labour Code (CLC) uses the following:

87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.

The NEU proposes that the PSA adopt the definition CLC definition.

[1] Conciliator's Interim Report on the NLCA Implementation Contract, 2005

Nunavut Employees Union

Response to Issues raised at Public Service Act - Steering Committee
March 30, 2007

Issues raised at Public Service Act - Steering Committee
March 27, 2007

The following is a list of Inuit Qaujimajatuqanginnut principles taken from the GN's policy document, Pinasuaqtavut. As the GN continually asserts its intention to integrate Inuit societal values into the PSA and, indeed it is bound by the land claims agreement to do so, it is important to keep the principles in mind and measure the intent of the various proposals against the principles. Accordingly, they are attached as an Annex to this document.

1. Collective Bargaining

a) Second mediation session
In the absence of any rational argument to the contrary the Nunavut Employees Union (NEU) rejects the Government of Nunavut's (GN) assertion that a second mediation session would be in keeping with Inuit Societal values. The NEU has no objection to a further meeting of the parties after reviewing a conciliator's report.

The NEU proposes that instead of calling this proposal a �second mediation session� that in the absence of a negotiated settlement, the PSA should set out the following compulsory steps:

i) conciliation,
ii) seven day period to review the report, followed by
iii) mediation

b) Minister requests vote of Union Membership
In the absence of any rational argument to the contrary the NEU rejects the GN's assertion that giving the Minister the power to order a vote by the union membership would be in keeping with Inuit Societal values.

The proposal by the GN to empower the Minister to order a final offer vote would be an infringement of the right of the employee to freely associate and to govern their affairs without interference by the employer.

While there may be two jurisdictions in Canada which allow final offer votes the majority do not.

The NEU has no objection to the Public Service Act (PSA) containing a provision requiring the approval of the union membership to a strike by secret ballot as is the case in:

Public Service Staff Relations Act s. 184 only provides for the requirement of a vote by the union membership. Employer has right to request the Board to order a new vote if it can prove there were irregularities.

Such a provision in the Nunavut PSA should not assign a power to �The Minister� to require a vote of the membership for a strike or on a final offer nor should the PSA set any date for a vote other than a requirement that the vote be conducted within a minimum period prior to a strike as in:

Canada Labour Code, s.87.3 provides for a strike vote within 60 or more days prior to the strike.

In addition to interfering in the affairs of the union, the power to order a vote would give the employer the ability to influence the membership's right to determine whether and when a strike should take place.

The NEU rejects the GN's proposal.

c) Lockout
There should be a commitment by GN to mutual respect and harmonious labour relations (see Pijitsirniq and Piliriqatigiinniq/Ikajuqtigiinniq above.) The objective of the PSA should be to establish ground rules that will preserve a reasonable balance of power in the relations between the employer and employees.

The GN is proposing to change that balance of power by removing the ability of the employees to selectively withdraw their services by locking out all employees. This would also enable the GN to take away the employees' option to reduce the economic effects of a work stoppage.

The NEU appreciates that a strike will cause �operational difficulties e.g. administering pay.� That is the point of a legal work stoppage. The greater the administrative difficulties, the greater the pressure on the parties to return to negotiations. However, the GN's proposal will increase the discomfort of the employees while reducing the pressure on the employer to return to the negotiating table, thereby significantly altering the balance of power between the Parties.

As the government, the employer already processes disproportionate power in that it controls the purse and it has the power to legislate the employees back to work.

Lockout may be reasonable in private sector collective bargaining where the employer has no power to force an end to a legal work stoppage but it is inappropriate where the employer is the government and can legislate an end to the work stoppage.

The NEU appreciates that this power is a blunt instrument. So is a strike. There are significant costs incurred by all parties in failing to negotiate an agreement.

The NEU rejects the GN's proposal to introduce a lockout provision into the proposed PSA.

2. Staffing Appeals
The NEU agrees, in principle with the need for procedural fairness in staffing appeals. Currently, members of the bargaining unit have a process to ensure fairness. This is one of the benefits of union membership which all members, willingly or otherwise, pay through the employees' union dues. GN is proposing that excluded employees should have access to the same or similar procedural process at the public expense.

The NEU cannot support a proposal that establishes a two tier process that extends a benefit that one group of employees pay for out of their own pockets while a small, exclusive group of senior managers receive the same benefit at the public's expense.

The NEU rejects the GN's proposal and suggest that GN establish a system, such as a staff association for senior managers, that would establish a process for ensuring procedural fairness for excluded employees that is not a burden on the public purse.

Annex
Inuit Qaujimajatuqanginnut Principles from Pinasuaqtavut

Inuuqatigiitsiarniq: respecting others, relationships and caring for people. Respect for others and treating others equally is a characteristic the elders have always stressed in their words of advice (uqaujjuusiat). Government practices should promote impartiality.
Tunnganarniq: fostering good spirit by being open, welcoming and inclusive. We must make the workplace people-friendly, welcoming and accepting for Nunavummiut, elders, our colleagues and others. Removing language and cultural barriers is important in welcoming people.
Pijitsirniq: serving and providing for family and/or community. In carrying out their responsibilities all GN staff will endeavour to serve each other and the community at large to the best of their abilities.
Aajiiqatigiinniq: decision making through, discussion and consensus.

Important communications and decisions will be made through seeking input from individuals, face to face meetings, direct communication, and consensus development.

Inuit language will be widely used as the primary language of communication.

Silence is part of communication, and it does not necessarily signify agreement.

Pilimmaksarniq/Pijariuqsarniq: development of skills through practice, effort and action. The workplace will be more accommodating and flexible in accommodating or making room for new ideas and practices that need to be implemented.

Inuit staff must be given opportunities to develop skills on the job during regular hours through mechanisms such as mentoring, in-service training, and professional development.
Piliriqatigiinniq/Ikajuqtigiinniq: working together for a common cause. Inuit and non-Inuit staff must work together from the basis of their own knowledge and experience to develop mutual understanding and a balanced approach to the provision of programs and services.

We can better serve the public through such collaboration and mutual understanding in the workplace.

Qanuqtuurniq: being innovative and resourceful in seeking solutions. This is the basis of persistence. Inuit had to seek new ways to survive. It is important for Government to recognize that we must constantly explore many different opportunities to move forward.
Avatittinnik Kamatsiarniq: respect and care for the land, animals and the environment. This is a strong Inuit societal value that has sustained Inuit for eons and just as important today.

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