Brief to Members of the Senate regarding concerns over Bill C-7
We write to you today on behalf of the National Police Federation (NPF), the largest employee organization of serving members of the RCMP, and one that seeks to become the certified bargaining agent for those members.
The NPF has serious concerns regarding certain sections of Bill C-7. These provisions were not addressed or amended by the Standing Committee on Public Safety and National Security in their report nor were they addressed at Report Stage in the House of Commons.
The NPF has two specific areas of concern with Bill C-7 as it is drafted: first, the topics excluded from collective bargaining, and second the mandatory qualifications of an arbitrator assigned to determine the content of any collective agreement.
In essence, the NPF asks the question: “Can Parliament help us understand why Canada’s national police force should be treated differently than every other police officer in Canada when it comes to their terms and conditions of employment, including their confidence that safety will be a paramount component of their employment relationship?” As Bill C-7 is presently written, it places members of the RCMP at the will of the employer regarding terms and conditions of employment, including workplace safety.
There is a fundamental principle of labour relations in Canada that terms and conditions of employment should be similar across similar labour markets. While the RCMP has the same employer as other public service groups, the unique nature of its work as Canada’s national police organization must be recognized, particularly in the ability of its members to collectively bargain their terms and conditions of employment.
As the Supreme Court of Canada stated in the decision requiring the Government of Canada to permit collective bargaining for RCMP members: “there is no evidence that providing the RCMP a labour relations scheme similar to that enjoyed by other police forces would prevent it from fulfilling its mandate.” Yet, Bill C-7 restricts collective bargaining by RCMP members on topics that are standard in police agreements throughout Canada.
Distinction between the RCMP and other public service groups:
The purported reason for some (but not all) of these limits is that the same limits apply to federal public servants. This is not an apt comparison. The distinction between the RCMP and other public service groups is reflected not only in the RCMP’s mandate, structure and organization, but in the fundamental differences in the nature of work. Section 4.2 of the RCMP Act Regulations (2014) states:
“Members are diligent in the performance of their duties and the carrying out of their responsibilities, including taking appropriate action to aid any person who is exposed to potential, imminent or actual danger.”
This section reflects the essence of the difference between the RCMP and other public service groups. Every day, RCMP members are exposed to the most unsavoury elements of our society, often in confrontational situations and sometimes, at risk to themselves. RCMP members deal with child molesters, murderers, sexual offenders, drunk drivers and terrorists and do so in fulfillment of their duty and their obligation under s.4.2 of the RCMP Act Regulations (2014).
The NPF would add that this distinction has been cited by arbitrators who deal directly with municipal police contracts, one such quote would be from arbitrator Stan Lanyon Q.C. on July 29, 2014 in his decision on the renewal of the Vancouver Police Department’s collective agreement (emphasis added):
The work of Police Officers is unlike the work of any other civic employee. I stated the following in Vancouver Police Board v. Vancouver Police Union, 1997 B.C.C.A.A.A. No. 621:
First, I accept the uniqueness of policing. It is not an occupation or profession comparable to other public sector employees. Both the nature of the work and the nature of the public responsibilities are different. This has to do with their duties and powers and, as captured in past arbitral awards and academic literature, the necessity at some point to lay their “life on the line”.
In fulfilling their duties, police are expected to put themselves in harm’s way and are authorized through the Criminal Code to temporarily suspend liberty and take a human life if circumstances dictate. These decisions are often made in a split second. The responsibilities are onerous and serve to distinguish the RCMP. It is essential that RCMP
members do not suffer in their ability to collectively bargain their terms and conditions of employment by simply equating them to other public services groups.
In addition to this fundamental difference, there are other differences between the RCMP and other public service groups:
- Members of the RCMP swear or affirm oaths that increase their accountability to the laws of Canada. 1
- Criminal Code offences against public order also distinguish the RCMP members from all others in the public service of Canada. 2
- All members of the RCMP serve at the direction of the Commissioner of the RCMP and the Governor and Council.3
- All members of the RCMP necessary physical qualities and other qualifications for appointment to the Force as the Commissioner may, by rule, prescribe.4
- The Commissioner of the RCMP has the legislated authority to deploy human resources at his or her direction, nationally and internationally.5
- Members of the RCMP serve in over 750 detachments in all Provinces and Territories in Canada.6
- Members of the RCMP serve as Liaison Officers in 26 locations around the world.7
- Members of the RCMP administer or enforce more than 250 federal statutes and agreements.8
- Members of the RCMP have deployed to war zones in Cavalry, Provost and Peace Keeping functions.9
- Since 1873, two hundred and thirty seven members of the RCMP have been murdered, killed or have died performing their duty in service to Canada10
1 Engagement Document form A115B
2 Criminal Code, Section 56
3 RCMP Act
4 RCMP Act
5 RCMP Act
6 RCMP Corporate Fact Sheet
7 RCMP International Policing Fact Sheet 8 RCMP Corporate Fact Sheet
9 RCMP Fact Sheet and Archives 10 RCMP Honor Roll
Members of the RCMP are clearly distinct from other public service groups and based solely on that, their labour relations framework needs to reflect that distinction. To do otherwise would only do a disservice to those members. Members of the RCMP ought not to supplement the safety of the broader public at their own risk where reasonable and necessary steps can be taken to enhance their personal health, safety and working conditions. Police associations worldwide have proven to be effective in representing members in these areas. Where there is a sufficient demonstrated need, police associations seek amendments to the terms of their collective agreements so as to ensure that there is a broader coverage of a safe practice for all members.
Therefore, the aspects of Bill C-7 – specifically sections 238.19, 238.21 and 238.22 are contrary to what is normal in the police universe and will have a detrimental effect on the health, safety and working conditions of members of the RCMP.
Jurisprudence regarding Collective Bargaining and the freedom to associate:
We would draw your attention to another Supreme Court of Canada (SCC) case, BC Health Services from 2007 which speaks to the employer enacting legislation that restricted the abilities of employees to collectively bargain terms and conditions of employment in which Chief Justice McLachlin and Justice LeBel state in paragraphs 82, 96 and 113 (emphasis added):
82 The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work (see Alberta Reference, at p. 368, and Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC),  3 S.C.R. 701, at para. 93). As explained by P. C. Weiler in Reconcilable Differences (1980):
Collective bargaining is not simply an instrument for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect dignity of the worker in the face of managerial authority. Rather, collective bargaining is intrinsically valuable as an experience in self-government. It is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them…. [p. 33]
96 While it is impossible to determine in advance exactly what sorts of matters are important to the ability of union members to pursue shared goals in concert, some general guidance may be apposite. Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements. By contrast, measures affecting less important matters such as the design of uniform, the lay out and organization of cafeterias, or the location or availability of parking lots, may be far less likely to constitute significant interference with the s. 2(d) right of freedom of association. This is because it is difficult to see how interfering with collective bargaining over these matters undermines the capacity of union members to pursue shared goals in concert. Thus, an interference with collective bargaining over these issues is less likely to meet the requirements set out in Dunmore for a breach of s. 2(d).
113 Sections 4 to 10 of the Act have the potential to interfere with collective bargaining in two ways: first, by invalidating existing collective agreements and consequently undermining the past bargaining processes that formed the basis for these agreements; and second, by prohibiting provisions dealing with specified matters in future collective agreements and thereby undermining future collective bargaining over those matters. Future restrictions on the content of collective agreements constitute an interference with collective bargaining because there can be no real dialogue over terms and conditions that can never be enacted as part of the collective agreement.
The Supreme Court, in the case Mounted Police Association of Ontario v. Canada (Attorney General), spoke specifically to the Government enacting legislation that limits the ability of employees to advance workplace goals (emphasis added):
72 The balance necessary to ensure the meaningful pursuit of workplace goals can be disrupted in many ways. Laws and regulations may restrict the subjects that can be discussed, or impose arbitrary outcomes. They may ban recourse to collective action by employees without adequate countervailing protections, thus undermining their bargaining power. They may make the employees’ workplace goals impossible to achieve. Or they may set up a process that the employees cannot effectively control or influence. Whatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining: Health Services, at para. 90.
81 We have concluded that s. 2(d) protects the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals. The government therefore cannot enact laws or impose a labour relations process that substantially interferes with that right. This raises the question – what are the features essential to a meaningful process of collective bargaining under s. 2(d)? In this section, we conclude that a meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them.
Finally, Bill C-7 takes the extraordinary step of prohibiting RCMP members from negotiating protection against harassment into a collective agreement. Every other police association in Canada is free to negotiate anti-harassment language into their collective agreement. Every other bargaining agent in the federal public service may – and have – negotiated anti-harassment provisions. The RCMP would be the only organization in Canada where members cannot negotiate a term in their collective agreement that prohibits harassment.
The need for a Police specific qualification in Interest based arbitration for the RCMP:
RCMP members must be fairly compared and compensated relative to other police officers in Canada, not relative to other public service groups. Most, if not all the exclusions within Bill C-7 are available to be collectively bargained by those other police forces. Therefore, the RCMP’s guiding legislation should reflect those comparators, not those of other public service groups.
The Supreme Court of Canada has recently concluded that s. 2(d) of the Charter protects the right to strike. The right to strike is not absolute: section 1of the Charter means that public sector employees (such as police officers) who provide essential services must employ a less disruptive mechanism when collective bargaining reaches an impasse. However, for such employees there must be “access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration.” 11
11 Saskatchewan Federation of Labour, at para. 93.
The crucial concept, therefore, is that a scheme of interest arbitration must be a “meaningful alternative” to collective bargaining. There are a number of necessary conditions for interest arbitration to be a meaningful alternative to collective bargaining:
- It must include a mechanism for “resolving collective bargaining impasses” – i.e. it must resolve all of the bargaining disputes between the parties, not just a subset of those disputes;
- The arbitrator must be impartial12;
- The arbitrator must have expertise in the field in which he or she operates13; and
- The arbitrator must have broad acceptability in the labour relations community (i.e. be acceptable both to unions and to management)14.
The interest arbitration process in Bill C-7 as it is presently written, does not protect that third factor. In the event that the parties to an interest arbitration cannot agree on an arbitrator (or, more commonly, the chair of a three-person arbitration panel), the sole arbitrator or chair of the panel is appointed by the Chairperson of the Public Service Labour Relations and Employment Board. Bill C-7 and the current Public Service Labour Relations Act do not contain any criteria for the Chairperson to apply when selecting the sole arbitrator or the chair of an arbitration panel.
Importantly, there is no obligation for the Chairperson of the Board to appoint someone with knowledge and experience in the police field. For the interest arbitration to be meaningful, it cannot be conducted by someone who is inexpert and inexperienced in the police field. Appointment of a person who is inexpert in the particular field would be “a defect in approach that is both immediate and obvious.”15
For these reasons, Bill C-7 should be amended to clarify that an interest arbitrator or the chair of a three-person arbitration panel must have experience and expertise in the field of policing.
Comparisons of Collective Bargaining in the Public Service and other Police Agencies:
The restrictions on bargaining for RCMP members are more severe than the restrictions imposed on other public servants and on other police services throughout Canada.
12 Saskatchewan Federation of Labour, at para. 96; Canadian Union of Postal Workers at para. 215 13 C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 at para. 183.
14 C.U.P.E. v. Ontario (Minister of Labour), at paras. 183-184. 15 C.U.P.E. v. Ontario (Minister of Labour), at para. 184.
Some examples of collective agreements that include provisions setting terms and conditions on issues that Bill C-7 prohibits RCMP members from bargaining are as follows:
The Treasury Board and the Public Service Alliance of Canada (PSAC) (Appendix ‘A’):
- Discipline is addressed at Article 17, page 17;
- Discrimination and Harassment are included in article 19, page 25;
- Sexual Harassment is included in Article 20, page 25;
- Health and Safety are included in Article 22, page 26;
- Employee Performance Reviews (appraisals) are included in Article 56, page 89;
- Other aspects of “workforce adjustment” (i.e. payments due on non-disciplinary discharge) are in Appendix “D”
The Treasury Board and the Union of Canadian Correctional Officers (Appendix ‘B’):
- Discipline is addressed at Article 17, page 21
- Discrimination is addressed at Article 37, page 87
- Sexual Harassment is addressed at Article 38, page 88 The Treasury Board and Border Services – PSAC (Appendix ‘C’):
- Discipline is addressed at Article 17, page 16;
- Discrimination is addressed at Article 19, page 24;
- Sexual Harassment is addressed at Article 20, page 25.
The Toronto Police Service and the Toronto Police Board (Appendix ‘D’):
- Pension: article 8 (in particular, 8.02 sets out the “additions” to OMERS, the statutory pension plan for police officers in Ontario)
- Discharge, etc: article 3.01(b) [cannot discriminate when doing so], article 18 [rules for layoffs]
- Probation: article 4.02, MOU (at p. 53)
The Edmonton Police Association and the Edmonton Police Board (Appendix ‘E’)
- Pension: article 7.08
- Discharge, etc: 8.03
- Probation: 8.02
- Promotions process: article 9
The Delta Police Association and the Delta Police Board (Appendix ‘F’):
- Pension: article 16.3
- Discharge, etc: 21 (layoffs)
- Probation: 24
The Regina Police Association and the Regina Police Board (Appendix ‘G’)
- Pension: article 15
- Harassment: Letter of Intent, item 6
- Discharge, etc: Schedule “A”, section 1
- Probation: 8.02
- Promotions process: Schedule “A”, section 3
Members of the RCMP are distinct from the public service and should be treated as such. The Supreme Court of Canada has already ruled restrictions on the topics for collective bargaining violate s. 2(d) of the Charter, and cannot be justified in the absence of extenuating circumstances. Certain limits on the ability of RCMP members to bargain are appropriate and broadly accepted in the police universe – such as preserving the ability of the RCMP to discipline members for egregious misconduct. Bill C-7, however, goes well beyond those broadly accepted limits without justification.
Based on all the above, the NPF strongly recommends that Bill C-7 be revised and amended. We have attached suggested changes in Appendix ‘H’
Co-Chairs of the National Police Federation