Staff Relations in the Civil Service: The Canadian Experience 9780773592797

Citation preview

STAFF RELATIONS IN THE CIVIL SERVICE The Canadian Experience BY

SAUL J. FRANKEL

McGILL UNIVERSITY PRESS Montreal 1962

Copyright, Canada, 1962, by McGill University Press PRINTED IN CANADA

PREFACE An academic work, although it may seem to have only one author, is usually the product of joint effort. This study is no exception, and I am happy to acknowledge the great debt I owe to all those who have encouraged and supported me in my task. At the same time, it is only fair to say that any errors in fact or judgment must be attributed to me alone. I should like, first, to thank the many members of the public service—on both Official and Staff Sides— who were ever ready to share the wisdom of their experience. They must remain anonymous, but my appreciation of their contribution is direct and personal. I am also indebted to Professors J. R. Mallory and H. D. Woods of McGill University, who read most of Part I of the study, for many valuable comments and suggestions. Miss Margery Simpson, Editor of the McGill University Press, deserves special recognition for her generous and skilful editorial guidance. The book's literary shortcomings are due entirely to my own stubbornness. The work was made possible, in large part, by a number of grants. The Federal Department of Labour –Universities Research Committee helped me to carry out part of the preliminary research on the federal civil service. The Institute of Public Administration of Canada provided funds for research and travel, enabling me to study staff relations in all the provinces as well as to prepare the manuscript for publication. A year

of research in the United Kingdom on a Canada Council Senior Fellowship, while not devoted directly to the subject of this book, gave me an invaluable opportunity to view staff relations in Canada from the perspective of British experience. I should also like to thank the Industrial Relations Centre of McGill University for the grant of funds to assist the publication of the manuscript. I am grateful to the Canadian Journal of Economics and Political Science for permission to reproduce in Chapter IV material which first appeared in that journal in November 1956 in an article of mine entitled "Experience with Joint Consultation," and to Canadian Public Administration for similar permission to incorporate material from "Civil Service Staff Relations in Saskatchewan," first published there in September 1960. The greatest debt of all is to my wife for her interest and participation in the work. Throughout its preparation she was both keen critic and understanding companion.

VI

TABLE OF CONTENTS

Preface

v

PART I THE FEDERAL GOVERNMENT Introduction I

Perspective The Right to Organize Collective Bargaining Deadlocks

1 4 10 15 21

The Staff Associations The Professional Institute of the Public Service of Canada The Civil Service Federation of Canada The Civil Service Association of Canada The Civil Service Association of Ottawa Amalgamated Civil Servants of Canada Events leading to the Merger The Search for Unity Structural Weaknesses Appendix: Membership Statistics

22 24 28 29 29 31 37 40 47

III

Joint Councils: A Major Objective Whitleyism The First Steps Parliamentary Tactics The Role of Treasury Board Joint Consultation

51 55 56 59 68 72

IV

Joint Consultation in Practice Representation on the National Joint Council

75 78

II

VII

TABLE OF CONTENTS

Implementation of Agreements The Scope of Joint Consultation Failure to Reath Agreement Secrecy Departmental Joint Councils The Line between the Two Sides

80 88 96 98 102 105

V

From Consultation to Negotiation

111

VI

The Role of the Civil Service Commission The Bureau of Pay Research Pay Research in Practice The Heeney Report Revision of the Civil Service Act

135 135 141 149 158

VII Problems and Prospects Who Represents the Government? Who Will Represent the Staff? A Role for the National Joint Council Resolution of Deadlocks Principles of Pay

167 169 179 185 188 193

PART II THE PROVINCES Introduction

203

VIII Saskatchewan The Rights of Trade Unionism Bargaining Units Public Service Act Negotiating Procedure Affiliation The Role of the Commission

207 209 212 215 218 229 231

IX

235 235

VIII

Alberta and Manitoba Alberta

TABLE OF CONTENTS

The Civil Service Association of Alberta Public Service Act Joint Council Public Service Commissioner Affiliation Manitoba X

Ontario The Civil Service Commission Joint Consultation The Quest for Negotiation Affiliation

XI

British Columbia . The Civil Service Act The Issue of Negotiation The Strike Threat The Board of Reference Strike Action Affiliation and Check-off

Conclusion Index

INTRODUCTION

The present study is an attempt to describe and evaluate the development of staff relations in the civil services on the federal and provincial levels in Canada. The reference to civil service rather than to public service or government service is deliberate. The three terms are not mutually exclusive nor is the difference between them always clear, but a distinction can and should be drawn from the standpoint of staff relations. The term civil servants as it is used here refers to persons employed in government departments operating under direct ministerial control and whose salaries are paid out of consolidated revenue funds. This distinguishes them from employees of public boards, commissions, or corporations, who are public servants in the wider sense. The staff relations of public boards and crown corporations are sufficiently distinct to warrant separate treatment, and they are excluded from this study. They tend, in the main, to follow the industrial pattern. The term staff relations may also have very broad and general connotations, but in the context of this study it is applied more narrowly to that aspect of staff relations which is associated with the phenomenon of trade unionism. The problems of civil service staff relations are particularly complex in a society which accepts the relatively free development of trade unionism in private industry. 'Whereas the authoritarian state is as unconcerned about the rights of its civil servants as it is about 1

INTRODUCTION

those of any other group of its subjects, a constitutional state must seek to reconcile its own role as an employer with the norms of employer-employee relations prevailing in its realm. To reconcile does not, however, mean to adopt without modification the machinery of private labour relations. Few would deny that the unique legal character of the state and the over-riding importance of its functions must affect the form and spirit of its staff relations. Nevertheless, to acknowledge a special status for the state-as-employer is, by itself, not very enlightening. We cannot deduce practical policies from an abstract definition of the state; we can only rationalize them. The basic question is: To what extent do civil servants in Canada participate in determining their conditions of employment? To answer it we need to examine the staff associations, the nature of their activities, the responses of governments to their pressures, and the machinery of consultation and negotiation that is evolving. Our investigation should yield more than a mere description of a narrow range of human activity. It should also provide an interesting case history in constitutional development. For the emerging pattern of civil service staff relations in Canada represents an adjustment of government to the claims of civil servants for a status which they regard as a right. The ability of a constitutional society to reconcile the divergent claims of its members is its greatest source of strength.

2

Chapter I PERSPECTIVE Civil servants in all modern constitutional states are to a greater or lesser degree organized in associations whose structures and aims resemble those of trade unions. There are, however, very marked differences in the scope of their activities and in the nature of their formal relationship to the state-employer. This variation in practice suggests that there are no simple and clear-cut criteria for determining the limits of unionism for civil servants. It implies that the actual state of staff relations in a particular country or province is a function of political as well as regional, historical, and institutional factors. The unionization of civil servants poses a number of general problems which will be touched upon briefly in this chapter. First is the question of whether or not civil servants have a right to form associations with trade-union objectives. Granted that they have this right, does the special nature of the state as employer impose any limitations on the scope of their organizations?' Secondly, is it realistic to envisage a process of bilateral negotiations on conditions of employment 1. An amusing illustration of this point may be gleaned from a report in the New York Times for August 2, 1957, under the heading "Postal Workers Pray for Pay Rise": A prayer for higher pay for postmen was offered yesterday at Third Avenue and Eighty-fourth Street as a bill to grant it approached a vote in Congress. . . . The national union had called for a nation-wide 'Pause for Prayer' inasmuch as postal employees accept the obligation

3

PERSPECTIVE

with a government-employer? Can such negotiations lead to binding commitments, especially on the part of the state? In short, is collective bargaining possible when the state is one of the direct parties? Thirdly, supposing that some form of direct negotiations is established, what happens if a mutual agreement between the parties cannot be reached? Is there an acceptable alternative to strike action, or must a deadlock remain insoluble? The Right to Organize The question of the right of Canadian civil servants to form associations is not a difficult one. Their organization for mutual assistance is a fact which is recognized in official pronouncements and is generally justified as a fundamental right of citizenship. A rather puzzling statement was made in the spring of 1920 by Sir George E. Foster, the acting Prime Minister, in reply to a submission by the executive of the Trades and Labour Congress. This statement was paraphrased in the Labour Gazette as follows: With regard to the right to organize, the Government stated that while this was already recognized as applying to industrial workers, the principle could not be applied to Government employees, who were obviously in a different category.2 not to strike for their demands. . . . The Rev. William W. S. Hohenschild . . . said in praying for the postmen and their families: 'Bless the President of the United States. May he in his wisdom be so directed by Thy will that he may accede to their request for an increase in their normal pay.' As a matter of record, Congress passed the bill, but it was vetoed by the President. 2. Canada, Labour Gazette, XX (April 1920), 872.

4

THE RIGHT TO ORGANIZE

Since there were already at that time several civil service associations, two of which had made their appearance before 1910, it would seem that by the term organization Sir George had in mind the broader scope of trade-union activities, including collective bargaining and strike action. The fresh memories of the Winnipeg general strike in which some postal employees had been involved were perhaps at the root of this confusion of terms. The present position is clear. In a letter to the Civil Service Federation of Canada in December 1954, the Secretary of State, the Hon. Roch Pinard, affirmed: (1) that Civil Servants have the right to organize and that this right has never been denied; (2) that affiliates of the Federation and other recognized Associations of Civil Servants have the right to take up grievances with Departmental officers during office hours as may be decided by Deputy Ministers, and (3) that the Deputy Ministers have the right to decide the extent to which, if any, Civil Servants during working hours may (a) carry on organizing activities, and (b) issue check-off cards and collect dues.3

This position was neither repudiated nor qualified when a change of government took place in June 1957. Indeed, the pending revision of the Civil Service Act will undoubtedly go beyond recognizing the right of staff associations to "take up grievances." It will recognize their right to participate in determining salaries and conditions of work. 3. The Civil Service Review (journal of the Civil Service Federation), XXVIII (March 1955), 108.

5

PERSPECTIVE

There are other aspects of organization, however, which are not yet so clearly defined. One of these is affiliation with unions of nongovernmental employees. Another is the meaning of recognition and how it applies to particular associations. In Britain, prior to 1927, civil service organizations were able to affiliate themselves with the Trades Union Congress and thus also with the Labour Party. The General Strike of 1926, in which some of the civil service associations had become involved quite indirectly, led to legislation which modified their status. Clause V of the Trade Disputes and Trade Unions Act, 1927, provided that civil service organizations whose primary purpose was to influence the conditions of employment of their members had to be composed entirely of persons employed by and under the Crown. In addition, they had to be "independent of, and not affiliated to, any such organization as aforesaid the membership of which is not confined to persons employed by or under the Crown or any federation comprising such organizations, that its objects do not include political objects, and that it is not associated directly or indirectly with any political party or organization."4 This Act was repealed in May 1946, and most of the staff associations have since re-established their affiliation with the Trades Union Congress. The problem of affiliation has not been of major importance in the United States and Canada (i.e. on the federal government level). In the United States, while there is no explicit restriction on affiliation, precedent and legislation imply some limiting conditions. 4. Quoted in L. D. White, Whitley Councils in the British Civil Service, (Chicago: University of Chicago Press, 1933), pp. 297-98.

6

THE RIGHT TO ORGANIZE

The Lloyd-LaFollette Act of 1912 recognizes "labor organization of postal employees not affiliated with any outside organization imposing an obligation or duty on them to engage in any strike . . . against the United States."5 Nevertheless this Act has not provided a practical deterrent to affiliation of civil service groups with the large labour federations, since they do not impose "an obligation or duty" to strike. Congressional riders to appropriation bills which attempt to forbid affiliation of civil servants with outside organizations that assert the general right to strike have been consistently defeated. The issue of affiliation in relation to the strike has become even less important since the passage of the Taft-Hartley Labor Management Act of 1947, which positively outlaws strikes in the federal civil service. The federal Government in Canada imposes neither direct nor indirect restrictions on affiliation. Whether or not a staff association chooses to ally itself with other civil service organizations or with the general labour movement depends upon its own judgment of expediency. A number of groups are, in fact, affiliates of the Canadian Labour Congress. But if affiliation is not an issue now, it may well become one in the immediate future. The Canadian Labour Congress has recently identified itself with a national political party. To the extent that civil servants are sensitive to any suspicion of political partisanship, they are likely to feel inhibited by any direct association with the Canadian Labour Congress. Provincial experience of this development is indicative both of the attitudes of staff 5. Quoted in M. R. Godine, The Labor Problem in the Public Service (Cambridge: Harvard University Press, 1951), p. 65.

7

PERSPECTIVE

associations and of the possibility of restrictive measures by governments.° The absence of strictures on the right to organize and affiliate does not mean, however, that civil service associations in Canada enjoy the organizational scope of ordinary trade unions. There is, for example, the problem of the extent of recognition accorded to particular associations as representative of particular groups of employees. Current federal labour legislation, which provides for the recognition and certification of bargaining agents for given bargaining units in the sphere of private labour relations, explicitly excludes civil servants from its application. The Industrial Relations and Disputes Investigation Act, 1948, after defining the institutions and procedures regulating the relations between employers and trade unions under federal jurisdiction, states in Section 55: "Part I does not apply to Her Majesty in right of Canada or employees of Her Majesty in right of Canada."7 The Federal Department of Labour, in its annual statistics of trade-union membership, counts only those who are members of unions affiliated with one of the central labour federations, or of unions that have received certification by a federal or provincial labour relations board. Since there can be no certification of civil service staff associations on the federal level, only those civil servants whose associations are affiliated with a central labour federation are numbered amongst the members of trade unions. 6. The experience in British Columbia is a dramatic case in point. See Chap. XI, pp. 286t1. 7. The Industrial Relations and Disputes Investigation Act, 1948, Revised Statutes of Canada (1952), Chap. 152. Section 54 of the Act, however, includes employees of government corporations within its ambit.

8

THE RIGHT TO ORGANIZE

The Government, while it recognizes the right of civil servants to form associations for their mutual advantage, is under no obligation to discriminate between them on the grounds of relative numbers or particular groups represented. There is no provision for the formal recognition of staff associations, although a form of recognition is implicit in the grant of representation on the National Joint Council of the Public Service of Canada.8 The Civil Service Bill, now before Parliament, refers to "appropriate organizations or associations of employees" but does not say what appropriate means in this context .8 This may become a problem of some importance if and when more direct negotiating procedureg are contemplated. For, unless 8. The question of recognition was raised in the House of Commons: Mr. Knowles: 1. What is a recognized civil service association? 2. Does the civil service commission, the cabinet, the minister at the head of a department, or some official under the minister grant recognition . . .? 3. What conditions or requirements must be met by an organization before recognition is granted? 4. What are the names of all recognized civil service associations? 5. When was each association recognized, and by whom . . .? Mr. Bradley: 1, 2, and 3. There is no formal definition of a recognized civil service association. 4 and 5. As indicated above, there are no recognized civil service associations. There are known to be over one hundred staff associations or organizations, and it is not possible to compile a complete and accurate list. The following eleven staff organizations have been named by order in council as entitled to direct and separate representation on the national joint council of the public service of Canada. . . . The government does not interfere in the formation of new associations of civil service employees. Can. H. of C. Debates, May 12, 1952, p. 2099. (My italics.) See Chap. IV on the National Joint Council. 9. The Civil Service Bill referred to here and in other parts of the study was passed by Parliament at the end of September 1961. It was due to be proclaimed after regulations under the Act had been drafted.

9

PERSPECTIVE

negotiations are to be on a service-wide basis, they are likely to be complicated by the existence of rival associations with overlapping membership. The proliferation of associations is encouraged by the lack of a policy on recognition. Collective Bargaining The question of collective bargaining with its implications of reciprocal commitments is a good deal more difficult than that of organization. Much of the difficulty, however, may be semantic rather than practical. If collective bargaining implies the legal equality of parties with respect to the process of negotiation, then, clearly, it cannot apply when the state is one of the parties. If the bargaining process is seen to depend mainly on the play of market factors and the relative economic power of the contending sides, then it must be granted that the state does not come directly under the sway of these forces. Finally, if collective bargaining, by definition, must culminate in either the submission of one of the parties, or in an agreement which is regarded as binding on both, it is impossible, in a formal sense, for the state to be so involved or committed. Such a view of collective bargaining is, to be sure, incompatible with any legal theory of sovereignty; it is also unrealistic. Yet, it seems that official policy in Canada has been based on just such an interpretation. It is worth quoting a statement by the Prime Minister in 1951, in reply to a question in the House of Commons: Mr. Knowles: I. Does the federal government recognize any organizations 10

COLLECTIVE BARGAINING

of its employees as bargaining agents in the terms or spirit of the Industrial Relations and Disputes Investigation Act?

Mr. St. Laurent: 1. The answer to the question as drafted is no. The civil service of Canada is carried on under laws enacted by parliament and is supervised by a commission set up by parliament. The commission and the government can and do receive representations from organizations of employees, but there is no process of collective bargaining in the sense in which that term is used in industry. From the very nature of employment in the public service, there can be no bargaining agent for the nation comparable with the employer in industry who has at his disposal funds derived from payments for goods or services. The funds from which the salaries are paid in the public service have to be voted by parliament and parliament alone can discharge that responsibility.10

There have been other official statements but their substance has been the same. It is advisable, as a general rule, to avoid abstract and theoretical argument in a study that is essentially empirical; but, when such arguments are invoked to determine or justify practical policies, they become social facts that deserve to be dealt with. Such is the case here. Whether the issue raised by the appearance of staff associations is organization, or collective bargaining, or the possibility of strike action, official reaction tends to be rationalized in terms of the sovereign status of the state-employer." To use the term rationalized is not to imply that the argument is completely lacking in validity. But its validity is neither simple 10. Can. H. of C. Debates, February 21, 1951, p. 542. 11. For a fuller treatment of the idea of sovereignty in the context of civil service staff relations, see the author's "Staff Relations in the Public

11

PERSPECTIVE

nor absolute except in a purely legalistic sense. Nevertheless, it is difficult to see how any conclusions can be reached about the problems of civil service staff relations without disposing of this argument. The notion of a monolithic and all-powerful sovereign is now rather out of date. It has been wholly transformed by our constitutional evolution from absolute monarchy to representative parliamentary democracy. At one time the absolute king could express his single will without fear of contradiction. Nowadays Parliament can only hope to discover and tentatively express the multifarious and ever-changing will of the people it represents. While it is still possible, in an abstract way, to speak of the Queen in Parliament as the sovereign, our real concern is with the sovereign's will as it is translated into laws and acts of government. The formation of that will is the product of a complex process involving individuals and groups—a process in which civil servants and their associations may have a legitimate part to play. Parliament as the repository of sovereignty is a continuing institution, but the representatives of the people, who must articulate the sovereign's will, are transitory. In the modern constitutional democratic state the will of the sovereign is the will of the people. Some writers recognizing this aspect tend to draw such conclusions as the following: We must appreciate that the people alone may decide what rights or privileges may or may not be granted to public employees by the people's representatives. Individuals have Service: The Ghost of Sovereignty," Canadian Public Administration, II (June 1959), 66-71.

12

COLLECTIVE BARGAINING

the privilege of serving the people or declining to do so. There is no compulsion. When they assume the task of serving the people, they must accept the responsibilities that go with it, both the advantages and the disadvantages of public employment.12 The statement is technically correct but quite meaningless as a description of reality. It is neither elaborated nor qualified to take into account that the people who "alone may decide" form a most complex and heterogeneous group which never makes positive decisions. Even the decisive ballot has only an indirect effect. It elects representatives whose positive influence on government and law depends on their relationship to a legislative majority, and this majority is itself the product of negotiation and compromise. Just as the people may decide the rights and privileges of public employees, they may also decide those of private citizens, private corporations, and other associations. The people as sovereign may consider themselves unsuable, or they may allow themselves to be sued. They may permit themselves to be bound by contracts with private firms, or they may decide not only to ignore the contract but to confiscate the physical and financial resources of the firm. They may hold their civil servants in virtual bondage—recruit them by conscription and maintain them in monastic isolation; or they may grant them the right of association, provide channels for mutual consultation, and even, if they will, accept as binding the recommendations of a tribunal which owes its existence to the sovereign's 12. H. E. Kaplan, "Concepts of Public Employee Relations," Industrial and Labour Relations Review, I (January 1948), 210.

13

PERSPECTIVE

caprice. One can pursue the theoretical argument to its logical conclusion, but it becomes a reductio ad absurdum in relation to experience. The fact is that the concept of sovereignty can be defined so narrowly or so broadly that almost any kind of practical adjustment is possible. Thus, although the "process of collective bargaining in the sense in which that term is used in industry" is not applicable to civil service staff relations, something akin to it can take place. When words acquire a more or less precise legal meaning which makes for rigidity, it is always possible to find other words which mean almost the same thing and yet escape the legalistic strait jacket. The Canadian Government now accepts the principle of joint consultation with the staff organizations. The Government of the United Kingdom does not hesitate to use the term negotiation as descriptive of its machinery of staff relations. Whichever term is used, the activity described is meaningless without some reciprocity between the parties. Consultation does not mean that one of the parties is merely informed, no matter how politely, what the other proposes to do. Again, if consultation or negotiation is to be successful, the parties, or their representatives, must be able to offer arrangements which are likely to be made operative. These need not be legally enforceable. It is sufficient if they are accepted as having been made in good faith. For example, in consultation between the Government and the staff associations the government side may agree that a specific increase in salaries is justified. It is true that only Parliament can vote the funds for this increase and that the Government cannot 14

DEADLOCKS

commit Parliament in advance. But given the resolution of the Government to recommend the increase, the rest is largely a matter of formality. When responsible civil service organizations speak of collective bargaining, they do not intend encroachment on the ultimate authority of Parliament, but they do imply their dissatisfaction with the existing consultative machinery. The Prime Minister's declaration that "parliament alone can discharge that responsibility" is not disputable. But one cannot infer what Parliament will or should do from the premise that "parliament alone" can do it. It is probable that the Government's policy on staff relations in the 1950's accurately reflected the public opinion that was represented in Parliament. In that case, the policy was quite properly based on political judgment and not on logical inference. It is also conceivable that the public opinion of the 1960's will lead to policies that are very different. Deadlocks The third general question posed at the beginning of the chapter is based on an assumption. It is that the principle of some form of bilateral consultation or negotiation is established. What happens, then, if the Government and the staff associations are unable to come to an agreement? Is there any way of breaking the deadlock? In private labour relations, employee groups may resort to strike action if the machinery of negotiation has failed to produce an acceptable compromise. This implies a test of strength. Alternatively, the parties to a dispute may agree to submit their differences to an arbitration board or tribunal whose decision 15

PERSPECTIVE

would be binding on them. The problem is less simple in the case of civil servants. The strike issue, although it has sinister implications, does not figure prominently in the present state of civil service staff relations. The staff associations do not regard the strike as a necessary or desirable instrument of policy. The Taft-Hartley Act in the United States specifically prohibits participation in strikes by "any individual employed by the United States or any agency thereof including wholly owned Government corporations."" The Act merely formalized a position which had been well established since the Lloyd-LaFollette Act of 1912. There is no law in Canada or the United Kingdom which forbids the civil servants of the national government to strike." The attitude which has been explicitly expressed in Britain and which would undoubtedly be supported in Canada is that striking would constitute a disciplinary offence subject to corrective measures. The Attorney General of the United Kingdom declared in 1946: "I take the opportunity of making it quite clear that this Government like any Government as an employer would feel itself perfectly free to take any disciplinary action that any strike situation that might develop demanded."" Despite legal prohibitions and threats of disciplinary action, strikes, albeit limited in scope and duration, have occurred in the three countries mentioned. An 18. Labour Management Act, 1947, (Public Law 101, 80th Congress), 305. 14. In Canada, the Province of Quebec forbids strikes of public employees. Some provinces prohibit strikes of municipal policemen and firefighters. See S. J. Frankel and R. C. Pratt, Municipal Labour Relations in Canada (Montreal, 1954), Chap. IL 15. Quoted in H. M. Treasury, Staff Relations in the Civil Service (London, 1958), p. 18.

16

DEADLOCKS

exhaustive study of strikes in the American public services suggests that, regardless of formal restrictions, public servants will strike when they perceive that their situation is intolerable and feel that no other avenue of effective action is open to them.'6 It was aptly remarked a long time ago by a French writer on civil service problems that "A strike is not a matter of right, but a brutal and spontaneous fact precipitated by events."17 A similar sentiment was once expressed—in a less polished style—by a leading official of a Canadian civil service association: We feel that any government that would allow conditions in government employ to reach such a pitch as to become intolerable to the workers involved would deserve to have a strike on its hands, and no law prohibiting strikes would prevent one under such circumstances, in the same sense as the prohibition of liquor did not prohibit.18

It is possible, of course, to introduce and develop the purely legal argument against strikes of civil servants. This argument, though not conclusive, carries a great deal of weight. One can imagine Parliament, as representative of the sovereign people, agreeing to a process of negotiation; but the notion of the sovereign submitting to a process which contains the possibility of a test of strength between itself and its servants is much more difficult to accept. On the other hand, a case for granting civil servants full collective bargaining rights, including the right to strike, could also be made. The 16. See David Ziskind, One Thousand Strikes of Government Employees (New York: Columbia University Press, 1940). 17. Quoted in Godine, The Labor Problem in the Public Service, p. 164. 18. Quoted in Report of the Committee on Employee Relations in the Public Service of the Civil Service Assembly of the United States and Canada (Chicago, 1942), p. 119.

17

PERSPECTIVE

discussion, however, would be highly academic. The very minor significance of the issue in actual Canadian experience makes it unnecessary to belabour it. The subject of arbitration procedures is currently receiving the careful attention of both Government and staff organizations in Canada. All of the major employee groups have gone on record in support of arbitration machinery to resolve issues that cannot be settled through consultation. The legal obstacles to the submission of the sovereign to the awards of a tribunal are, in practice, not insurmountable. This is clearly demonstrated by the experience in the United Kingdom where an agreed system of compulsory arbitration has been in operation since 1925. It requires only the judicious insertion of a saving clause here and there to preserve the legal fiction of sovereignty. The rest is a matter of good faith. Thus the British Treasury Circular which announced the Civil Service Arbitration Agreement of 1925 pledged that "Subject to the overriding authority of Parliament the Government will give effect to the awards of the Court."19 It is worth quoting from a recent report on staff relations prepared by the Treasury, which gives an official interpretation of this qualifying clause: The qualification is inserted to preserve the constitutional supremacy of Parliament and the possibility of a Government defeat there; the pledge means that the Government will not itself propose to Parliament the rejection of an award, once made.20

There are some objections to arbitration which can be made on practical grounds, and these will be con19. H.M. Treasury, Staff Relations, p. 22. 20. H.M. Treasury, Staff Relations, p. 22.

18

DEADLOCKS

sidered when we examine the entire problem in relation to the Canadian civil service. This chapter has attempted to define the area of investigation and to point to some of the specific problems which will be treated more fully. If the treatment of legal theory has at times seemed to be cavalier, it was only to emphasize the pragmatic nature of constitutional adaptation to changing opinion. Friedrich and Cole, in their study of the Swiss civil service, suggest an approach to the phenomenon of civil service unionism which well expresses the perspective of the present inquiry: Every legal order rests upon a fact of nature, a social reality beyond all law, namely, the groups of human beings to which it applies. . . . To repeat here a fundamental if somewhat platitudinous truth, a group of human beings is not willing, except in certain cases of extreme emergency, to be treated like dumb animals. Whether or not their material 'interests' are taken care of a little better or less well does not matter to them in comparison with whether they feel that they have had a chance to participate in deciding what those material interests are. The civil servants in large public services too wish to become self-respecting fellows in a common enterprise and not cogs in a machine directed by a superimposed government.v

The arguments presented here may sound like a brief in support of the claims of civil servants for more effective negotiating procedures. They are not, however, intended as such. When two sides confront each other, it is almost inevitable that the position of the 21. C. J. Friedrich and Taylor Cole, Responsible Bureaucracy (Cambridge: Harvard University Press, 1932), pp. 86-88.

19

PERSPECTIVE

side wishing to change the status quo will receive more attention than the position of the side wishing to preserve it. But the elaboration of arguments adds little to the bargaining power of the staff associations. Constitutional governments operate in a framework of competing pressures, and the strength of the staff associations would have to be perceived as significant before a government would feel compelled to respond to them. The judgment of political expediency is affected only marginally by debating logic. The point is that, in a society which accepts the general principle of collective bargaining, there are no insurmountable legal or constitutional obstacles to granting civil servants similar, if modified, procedures.

20

Chapter II THE STAFF ASSOCIATIONS The right of civil servants to form associations is, broadly speaking, a right to exert pressure on the government-employer for various ends. The response of government to the claims of staff associations, on the other hand, is largely influenced by their strength and relative importance vis-à-vis other groups. A survey of the staff organizations is, therefore, a necessary preliminary to understanding staff relations in the federal civil service. The effectiveness of the staff associations must be seen as a function of their number, membership, and organizational structures, and of their relationship to each other. There are, in fact, more than a hundred distinct groups of civil servants, and it would be a formidable task to describe them all. This, fortunately, will not be necessary. Only the three major organizations, which represent more than 90 per cent of the civil servants who are members of staff associations, need concern us. The first of these is the Professional Institute of the Public Service of Canada, which draws its membership from the more highly trained ranks of the civil service. The second and largest is the Civil Service Federation, which coordinates the activities of its many affiliated groups and represents them collectively on the more important levels of consultation. The third association is the Civil Service Association of Canada, which derives its strength from a highly centralized form of organization. 21

THE STAFF ASSOCIATIONS

What follows is a brief description of these main organizations and a summary of the recent history of their interrelations. An appendix at the end of this chapter provides data on government employment and membership in the staff associations. The Professional Institute of the Public Service of Canada The Institute, as its name implies, does not regard itself as a staff association in the trade-union sense. Yet its most important activities are very similar to those of the other staff associations. It differs from other professional associations such as the Engineering Institute of Canada or the Canadian Medical Association in that all of its members are employees of the same employer, and it is not restricted to a particular professional category. It has representation on the National Joint Council of the Public Service where, together with other staff groups, it consults with government representatives on some of the conditions of employment. It submits briefs, seeks interviews with officials, and, like the other associations, is interested in playing a more effective role in the process of determining salaries and conditions of employment. Indeed, it is sometimes more effective than the others in its dealings with the government-employer because it represents a more homogeneous group of employees who enjoy a favourable bargaining position. A civil servant may qualify as a member of the Institute if he "occupies a position . . . where such a member is engaged in a professional capacity such as agricultural, engineering, legal, medical, scientific, or technological work, or in the direction or administration of such work" (By-law 4, 1(b)). Qualifications 22

THE PROFESSIONAL INSTITUTE

include graduation from a recognized university and /or corporate membership in a professional association such as the Agricultural Institute of Canada. The Institute's membership includes librarians and entomologists, public relations officers and topographical engineers. The line between the professional and non-professional civil servants is not easily drawn and this has often been a contentious internal issue. The membership of the Institute in spring 1961 was 5,665. More than half of this number is in the Ottawa area. The Institute was founded in February 1920. One of the reasons for its founding at that time was the suspicion, if not hostility, of higher civil servants towards the American firms that had been hired to survey the organization and classification structure of the Canadian civil service.' While this did not long remain a significant factor in the Institute's development, it is mentioned here for its general historical interest. Membership in the Institute is direct. By-law 13,1 divides it into groups of not less than ten members on the following basis: (a) Professional Groups composed of members who, by virtue of training or employment, have common interests, (b) General Groups composed of various professional callings 1. An interesting resolution was passed at the first annual meeting of the Institute in November 1920: That a committee be appointed from the Professional Institute of the Public Service of Canada to prepare a memorandum deprecating the employment of the Chicago firm of Griffenhagen and Associates Ltd., for the purpose of reorganizing the Civil Service of Canada, and requesting that the contract with the firm be cancelled and that plans for the reorganization of the Service be made under the direction and supervision of the Civil Service Commission, acting in accordance with the Civil Service Act of 1918. From the Institute's Silver Jubilee History, 1920-1945, (Ottawa, 1945), p. 10.

23

THE STAFF ASSOCIATIONS

which individually lack sufficient members to form a distinct professional group. This division applies to the Ottawa district. Outside this area, organization tends to take the form of general branches grouped into regions. In 1961 there were 44 professional groups represented in the Institute. The Civil Service Federation of Canada (C.S.F.) The Civil Service Federation of Canada provides a central organizational framework for some 147 distinct associations with a combined membership of 80,534 (spring 1961). Sixteen of the affiliated groups are national in scope and account for 92 per cent of the total membership. Of these, ten are important enough to have representation on the National Joint Council in their own right. The rest are smaller affiliates, mainly local in character, which are represented by the central Federation on the national level. The Civil Service Federation of Canada came into being in the spring of 1909. The initiative in bringing together the several existing staff organizations into the framework of a federation was taken by the Civil Service Association of Ottawa, which had been founded in 1907. The "Call" to the first convention of the Federation, which was held in April 1909, emphasized "the need of a more tangible bond of union between Civil Servants throughout Canada and especially between such portions of the service as have already achieved organization."2 This remains the stated objective of the 2. Quoted in V. L. Lawson, "After Forty Years—a Retrospect," The Civil Service Review, XXII (June 1949), 112.

24

THE CIVIL SERVICE FEDERATION OF CANADA

Federation. Section 2(a) of its present constitution expresses the aim to "unite into one federated organization all Associations of Federal Public Service employees of Canada, representing all classified and unclassified civil servants." Membership in the Federation is mainly indirect. The individual civil servant is usually a member of a national or local association which is affiliated with the Federation. Section 5(a) defines a national association as one "having three or more branches in two or more provinces with a potential membership of at least 1,000 and a paid up membership of at least 500." While the long-run objective of the Federation is to have as its affiliates large national associations organized on a departmental basis, Section 5(b) of its constitution provides for the possibility that several associations may be formed in a single department: The Federation may accept for affiliation and charter more than one National Association within a department where the groups involved do not have a community of interest or working conditions, or where geographical conditions, tenure of office and like circumstances would merit direct affiliation.3

A conflict between the various affiliates over organizational jurisdiction is therefore an ever-present possibility. A dispute over this kind of issue led to the separation of the Civil Service Association of Ottawa from 3. This clause is less a statement of objectives than a recognition of realities. It served to rationalize the separate existence of the Civil Service Association of Ottawa until 1954 as an affiliate of the Federation. It accepts the development of autonomous local associations or departmental branch associations even where a national departmental association is in being.

25

THE STAFF ASSOCIATIONS

the Federation in 1954. This case will be studied more closely in another part of the chapter. The concept of a federated structure implies that the affiliates should enjoy a measure of autonomy in the conduct of their internal affairs, and this is provided for in the constitution. The Federation as a whole is not affiliated with the Canadian Labour Congress, but it does not bar its national associations from entering into such an affiliation. The Federation also recognizes the right of national associations to make autonomous representations to central authorities such as the Civil Service Commission, Treasury Board, and heads of departments on "departmental matters peculiar to their own National group" (Sec. 5(c)). However, on matters of service-wide concern the Federation is supposed to be the "sole negotiating body."4 Local associations have a more limited discretion, and matters which cannot be settled on a purely local basis must be submitted to the Federation "for any further necessary action" (Sec. 6(d)). The highest governing body of the Federation is its National Convention, which is called every three years. Representation at the Convention is roughly proportionate to membership, each affiliated organization in good standing being entitled to one delegate for its membership up to 300 and one additional delegate for "each additional 300 members or majority fraction thereof" (Sec. 13(a)). There is an intermediate gov-

4. This is a somewhat anomalous provision, as the national departmental associations affiliated with the Federation enjoy technical equality with it on the National Joint Council of the Public Service of Canada. See Chap. Iv.

26

THE CIVIL SERVICE FEDERATION OF CANADA

erning body, the National Council, which has the authority to "determine policy of the Federation between Conventions within the limitations of Convention mandates and the Constitution" (Sec. 9(f)). It comprises the members of the Federation's Executive Committee, the thirteen provincial and territorial vice-presidents, the Federation's representative on the National Joint Council of the Public Service of Canada, representatives of the national associations or associations given the status of a national association, and one member representing prevailing-rate employees. Representation on the National Council is on the basis of per capita fees paid to the Federation, the ratio being one representative for a membership up to 5,000 and one representative for each additional 5,000 members or majority fraction. The Council must meet at least once a year. Responsibility for the administration of the Federation's affairs rests with the Executive Committee. This body consists of the President; the first, second, third, and fourth Vice-Presidents, who are elected by the Convention; the General Secretary-Treasurer, who is appointed by the National Council; and the immediate past President. The Committee reports in detail on its actions to the meetings of the National Council. Among the powers of the Committee is one "to determine the status of any affiliated Association as a National Association for the purpose of representation on the National Council" (Sec. 10(f)). The General SecretaryTreasurer is a full-time, paid employee whose duties are prescribed by the National Council and are carried out under the general direction of the President. An amendment to the constitution, passed at the 1959 27

THE STAFF ASSOCIATIONS

Convention, made the presidency also a full-time, paid office. As in most federal-type organizations, the effective coordination of the constituent groups depends a good deal on the nature of the common objectives and the strength and skill of the central leadership. Constitutionally, the separate associations comprising the Federation enjoy considerable autonomy. Their constitutions must conform to the over-all objectives of the Federation, but they have the right to act independently on issues which are clearly departmental or local. In practice, however, the sphere of autonomous action is rather limited. The direction of the federal civil service is highly centralized, and any significant change in conditions of employment is determined on a level which is beyond the competence of the particular affiliates of the Federation.5 This naturally tends to enhance the scope and authority of the central institutions at the expense of the constituent associations. The Civil Service Association of Canada (C.S.A.C.) The Civil Service Association of Canada came into being on April 30, 1958, as a result of a merger of the Civil Service Association of Ottawa and the Amalgamated Civil Servants of Canada. This merger represents a stage in the efforts of the main staff associations to achieve a measure of unity amongst themselves. Before examining the development of the Civil Service Association of Canada, however, it may be useful to describe briefly the historical background of the two groups which joined to form the new organization. 5. See Chaps. V, VI, and VII.

28

THE CIVIL SERVICE ASSOCIATION OF OTTAWA THE CIVIL SERVICE ASSOCIATION OF OTTAWA (C.S.A.0.)

We have seen that the Civil Service Association of Ottawa was founded in 1907, and took the initiative, in 1909, in bringing the Civil Service Federation of Canada into being. It remained an affiliate of the Federation until 1954 when it had its charter revoked as a result of a jurisdictional issue which will be examined in due course. The Ottawa Association represented a different concept of staff organization from that of the Civil Service Federation. As its name implied, it confined its recruitment to the Ottawa headquarters staff; but apart from this restriction membership was open to all civil servants regardless of department or classification. Its members ranged from charwomen employed by the Department of Public Works to professional economists and high-level administrators in various departments. Membership was direct, and any person was eligible who paid a membership fee and agreed to abide by the constitution and by-laws. The association experienced its greatest development in the 1940's. This paralleled the general growth of the civil service in response to the requirements of war. Membership reached a peak of about fourteen thousand in the summer of 1948. However, a struggle for leadership, prior to its annual meeting in December 1948, left the association in a state of near collapse. AMALGAMATED CIVIL SERVANTS OF CANADA (A.C.S.C.)

The Amalgamated Civil Servants of Canada, before uniting with the Ottawa Association, was the prototype of the "one big union" in the civil service. The 29

THE STAFF ASSOCIATIONS

preamble to its constitution declared that "the best interests of all Civil Servants can be conserved and promoted only through a united body representing all Departments, Branches and Grades in the Service." Section II(1) declared the object was "to organize the unattached and unite into one organization all Canadian Government employees." The Amalgamated was affiliated with the Canadian Labour Congress. The association was formed in 1920, at a time when the Civil Service Federation of Canada had already achieved a measure of success in organizing a large number of civil servants into its federated departmental affiliates. The Amalgamated justified the creation of a new organization at that time on the grounds that the Civil Service Act, 1918, by standardizing the conditions of work in the civil service, had made it desirable to have all civil servants speak through a single voice. Membership in the Amalgamated was direct, and articulation was strong. The individual members were formed into subsections or sections ; these in turn were linked to departmental groups on the local level; departmental groups were represented in local councils which were ultimately integrated by a national council. This made for a highly centralized form of organization. The Amalgamated had a total membership of 10,997 in October 1957. The geographical distribution of this number is of considerable interest. There were only 121 members in the Ottawa area, the rest being divided among departmental branches and district offices outside of Ottawa. This distribution and the fact that the majority of its members were in the prevailing-rates category undoubtedly made the merger 30

EVENTS LEADING TO THE MERGER

agreement between the Amalgamated and the Ottawa Association feasible in practice. EVENTS LEADING TO THE MERGER

An observer in the year 1949 could easily have concluded that unity was not a serious issue for the staff associations. Of the major organizations at that time only the Professional Institute and the Amalgamated were not affiliated with the Civil Service Federation. The preponderance of membership in the Federation boded well for its future as the established national representative of the non-professional civil servants. In early 1950, however, there appeared signs of a conflict that had been latent almost since the inception of the Federation. This conflict was due to the basic incompatibility between the organizational principles of the departmental affiliates of the Federation and those of the Civil Service Association of Ottawa. It seems paradoxical that the Ottawa Association, which had taken the initiative in bringing the Civil Service Federation into being, should have found itself at odds with the tendency of the Federation's development; but this was inevitable. As the number of departmental affiliates of the Federation grew, and as they extended their organizational drive from the districts into the Ottawa area, they encountered the competitive presence of the Ottawa Association. The Association, on its part, found itself threatened by the encroachments of the departmental associations. The clash of jurisdiction in the Ottawa-Hull area could not be left unresolved indefinitely. 31

THE STAFF ASSOCIATIONS

At the Nineteenth Convention of the Civil Service Federation, which was held in January 1950, the Association of Ottawa introduced a resolution on jurisdiction. The essence of the resolution is contained in the following excerpts: Whereas there has always been a gentleman's agreement . . . with respect to the field of recruitment, this roughly being understood to be that the CSAO would refrain from soliciting membership outside the city of Ottawa, and that Headquarters and Administrative staffs located in Ottawa would be solicited for membership in the CSAO, and also that the CSAO would not solicit membership from the Ottawa branch offices of National Organizations; . . . Therefore be it resolved, . . . the present agreement as outlined above be respected by all affiliated organizations and form part of the policy of the Federation.6

The resolution was referred to a special committee which recommended that it be withdrawn and replaced by a new one calling for the establishment of a continuing committee "consisting of a representative, other than a paid officer, from each National body with headquarters staffs located in the City of Ottawa, to consider the whole broad question of jurisdiction."7 The new resolution was adopted unanimously. The committee met several times during 1950, but was unable to reach a conclusion agreeable to all parties. It reported its failure to the Executive of the Federation. The Federation Executive then set up a Sub-Committee on Jurisdiction and Unity, on which the Ottawa Association was represented, to continue the study of 6. Quoted in V. Johnston, "Which Way Unity?" The Civil Service News (journal of the Civil Service Association of Ottawa), June 1953, p. 5. 7. Ibid., p. 4.

32

EVENTS LEADING TO THE MERGER

the problem. A majority report of this committee envisaged "the ultimate organization of the Federation along departmental lines."' This was not palatable to the Ottawa Association, and it reacted by setting up a special committee of its own, which reported to the annual meeting of the Association in December 1952. This committee recommended that the Association should be prepared to depart from the existing scheme of organization only in the event that: (I) greatly increased financial and constitutional strength be vested in a central national body, with its affiliates in a subordinate role, . . . (2) the Executive of the central body be as broadly representative as possible, . . . (3) an organization continue to exist in Ottawa capable of serving the needs of Ottawa civil servants.9

The meeting adopted the report and it became clear that, if the issue could not be resolved at the June 1953 Convention of the Federation, the Association would seek an independent course of action. The issue was not resolved. The details leading to the final break need not concern us, but the form in which it occurred is of passing interest. The Convention amended the Federation's constitution to include a definition of jurisdiction in the Ottawa area between national departmental associations and the Civil Service Association of Ottawa. At the same time it adopted a memorandum of agreement providing for a period of six months, during which the various associations in the Ottawa district would attempt to agree on the 8. Ibid., p. 4. 9. Quoted in V. Johnston, "Where do we go after the June Convention?" Civ. Serv. News, January 1953, p. 10.

33

THE STAFF ASSOCIATIONS

interpretation of the constitutional provisions, and negotiate the allocation of jurisdiction. A negotiating committee was set up in July 1953. Negotiations seemed to go well until the end of September, when there arose a serious difference of views which could not be reconciled. The committee brought its sessions to an end on December 17. In the meantime, on December 10, the Annual Meeting of the Civil Service Association of Ottawa adopted a resolution that it cease its per capita payments to the Federation, unless certain minimum conditions with respect to jurisdiction were met. The Association felt that its continued survival depended upon the interpretation of its field of operations, and that this had been so narrowly construed by the departmental associations, which constituted a majority on the negotiating committee, that it would result in the gradual disappearance of the Association as an effective organization. The Executive Council of the Federation, which met in Ottawa on December 18, was bound by the Convention resolution to proclaim the coming into effect of the sections of the amended constitution referring to jurisdiction. This it did; but at the same time, in an effort to salvage the situation, it passed a motion recommending that the points of dispute with the Ottawa Association be submitted to arbitration. The effort came to naught, and on March 2, 1954, after forty-five years of affiliation with the Federation, the charter of the Association was revoked. An attempt was made to heal the breach, but it did not succeed. The Federation took the initiative in convening a Joint Unity Committee of Civil Service Organizations, which began to meet towards the end of 84

EVENTS LEADING TO THE MERGER

1954. Representatives of the Federation, the Ottawa Association, and the Amalgamated were on the committee. The Professional Institute had been invited to participate but had declined. The committee met several times during 1955, and there was a flurry of meetings in the spring and early summer of 1956, just prior to the Federation's convention in July. The outcome was a hardening of the differences between the Ottawa Association and the Amalgamated on the one side, and the Federation on the other. It is difficult to see how the results could have been otherwise when we note that the Federation committee, which took part in the joint deliberations, was bound by terms of reference laid down by the Executive Council "that the Amalgamated Civil Servants of Canada and the Civil Service Association of Ottawa be invited to join the Civil Service Federation of Canada in accordance with the latter's constitution.'"° Indeed, in reporting its findings to the Executive Council, this committee recommended, under point 14, "that the C.S.A.O. and the Amalgamated cease to function as they are presently constituted, and be absorbed into National groups."" The Federation convention passed a resolution which was less harsh in its implications but no more acceptable to the Ottawa Association and the Amalgamated. It reiterated the invitation to these associations to join the Federation in accordance with the latter's constitution. It offered them "autonomy" as 10. Reported in the Civ. Serv. Rev., XXIX, (December 1956), 432. (My italics.) 11. Unpublished Report No. 3, Civil Service Federation Unity Committee Meeting, June 21, 1956.

35

THE STAFF ASSOCIATIONS

affiliates of the Federation, but insisted that they "relinquish all present or future members eligible for membership in National Associations affiliated with the Civil Service Federation of Canada."" The Ottawa Association and the Amalgamated did not respond to the invitation. They undertook instead more serious negotiations aimed at their amalgamation into a single organization. They issued a joint press release in November 1956, announcing that they had prepared a draft agreement which was expected to lead to a merger of the two associations under the name of the Civil Service Association of Canada. The preliminary merger agreement, which was to serve as the basis for a constitutional union of the two organizations, was approved by the Ottawa Association in December 1956, and by the Amalgamated in the following month. The agreement recognized the similarity in structure and outlook of the two associations and considered that this would make for relatively smooth negotiations. A Joint Committee on Unity met regularly during 1957 and produced a draft constitution in time for the annual meeting of the Ottawa Association in December, when it was ratified. It was subsequently adopted by the Amalgamated. The formal union of the two associations and their transformation into the Civil Service Association of Canada occurred at the founding national convention at the end of April 1958. The constitution of the Civil Service Association of Canada is essentially a modification of the former constitution of the Amalgamated. Membership is open 12. Reported in the Civ. Seru. Rev., XXIX, (September 1956), 296.

36

THE SEARCH FOR UNITY

to "all employees of the Government of Canada below the rank of Assistant Deputy Minister or equivalent." This includes classified employees as well as nonclassified, part-time, seasonal, and casual employees. The organizational structure is highly centralized. Although there is provision for the formation of local groups and local, regional, and area councils, these are mainly administrative units that are hierarchically integrated into a single centrally directed organization. The highest constitutional body of the Association is its National Convention, which meets every two years. A National Council, made up of the National President, Executive Vice-President, Secretary-Treasurer, and the Regional Vice-Presidents, is responsible for the affairs of the Association in the intervals between National Conventions. A National Executive Committee, comprising the President, Executive Vice-President, and Secretary-Treasurer, is responsible for the day-by-day operations. The President and the Secretary-Treasurer are both full-time paid officers of the Association. Membership in the Association, as of spring 1961, stood at 28,100. The Search for Unity The problem of unity continues to engage the attention and energy of the staff associations. The issue is primarily one between the Civil Service Association of Canada on the one hand, and the Civil Service Federation and its national affiliates on the other. Together they represent more than 90 per cent of the organized Government employees. In June 1959 the presidents of the Civil Service Federation, the Civil Service Association, the Professional Institute, and eleven national 37

THE STAFF ASSOCIATIONS

affiliates of the Federation met in a two-day conference devoted to achieving a greater degree of coordination in the activities of the staff movement. The conference agreed to set up two committees, a Joint Action Committee and a Continuing Committee of the Presidents' Conference on Unity. The Joint Action Committee is a six-man body originally made up of the presidents of the Federation, the Association, and the Professional Institute and one other representative from each of the three groups. Its main purpose is to act as a clearing house for joint action on all problems of service-wide interest. In practice this has meant joint representations to the Government on salaries. The Committee played a significant part in the effort to achieve a general salary increase during the summer and autumn of 1959." It was particularly effective as the body "solely responsible for the release of joint public statements on such matters of mutual agreement, in the name of the Joint Action Committee" (Terms of Reference, No. 3). The Continuing Committee on Unity was given a much more difficult task. Its composition is similar to that of the Joint Committee, but its function is mainly advisory. It is to consider the ways and means of increasing the areas of agreement between the associations with a view to achieving a degree of organizational unity. It meets periodically between sessions of the full Presidents' Conference and brings its agreed recommendations to the conference. The Presidents' Conference on Unity met for the second time in September 1959. The Professional 18. See Chap. VI.

38

THE SEARCH FOR UNITY

Institute, however, did not send its representatives to the meeting. The Institute has always been sensitive about its professional status. There seems to have been widespread feeling that, by its association with an effort to achieve greater organic unity, the Institute might become identified with trade unionism. This was probably the reason for its withdrawal from the Conference. The Institute, nevertheless, declared its readiness to continue to participate in the work of the Joint Action Committee. In October 1959, however, the Institute also withdrew from the Joint Action Committee. One of the concrete results of the second Conference on Unity was the acceptance of a set of principles to guide individual organizations in negotiating noraiding agreements with each other. It was recognized that it would be too difficult to negotiate an over-all agreement on this problem between the Federation and the Association, and that it might be more realistic to encourage the individual associations to work it out amongst themselves. Limited negotiations of this kind did produce rather loose no-raiding agreements between the Association and one or two of the large affiliates of the Federation. A fourth Presidents' Conference on Unity took place in January 1961, and a fifth was scheduled for the following June. Although all groups pay lip service to the idea of unification, there is a marked reluctance to take the plunge. The fundamental point at issue remains that of the structure of the projected union. The Civil Service Association of Canada insists on a highly centralized pattern of organization. Most of the departmental affiliates of the Federation, jealous of their autonomy, favour a federated structure. It seems that 39

THE STAFF ASSOCIATIONS

the passage of time has contributed little to resolving this difference. Structural Weaknesses This brief survey of the staff organizations reveals two related problems which have an important bearing on the development of staff relations. One is the tendency of most associations to recruit their membership from as wide a range of civil service classes as possible. The other is the degree of overlapping and redundancy which results from competitive recruitment. These factors, interacting with each other, tend both to exacerbate relations between the staff associations and to lessen their effectiveness as representatives of the civil servants. Of all major associations only the Professional Institute, the three postal organizations," and the Customs and Excise Officers Association limit their membership to classes of civil servants that are more or less similar in composition and interest. The others are open, without distinction, to all civil servants, from the most casual prevailing-rate employees to high administrative officers. The main difference between them is that affiliates of the Federation confine their membership to the particular department or branch while the Civil Service Association of Canada recruits its members from any or every part of the civil service. This vertical form of organization complicates the process of consultation. 14. The three postal groups had agreed in the early spring of 1961 to unite. The merger was to have been consummated in the early summer of 1961, but did not occur.

40

STRUCTURAL WEAKNESSES

When there is an issue that concerns all classes of civil servants in a general and more or less equal way, it is sensible to set up a joint committee of the major associations to represent the staff in consultations or negotiations with the government-employer. Thus a revision of salary scales in response to general economic movements would call for the widest consultation with representatives of all categories. Most issues, however, affect different classes of employees in different ways and could be more readily dealt with in terms of their particular relevance. For example, a change in the salaries of typists outside of the civil service would indicate the need for consultation on the salaries of typist grades within the civil service. The difficulty is that the associations are ill-suited for this kind of consultation. An organization that represents cleaners and typists, technicians and administrative officers is under pressure to satisfy the whole of its clientele. To press the claims of one part of its membership is to incur the risk of antagonizing the remainder. As a result, the associations are inclined to think mainly in terms of across-the-board adjustments. Add to this the fact that there are more than a dozen organizations each speaking for cleaners, typists, technicians, and administrative officers and it becomes apparent that here is a formidable obstacle to rational staff relations in the Canadian civil service.15 15. This is in contrast with the horizontal form of staff organization in the United Kingdom: With few exceptions, Civil Service staff associations cater for particular grades or classes, for the obvious reason that members of grades and classes have greater common interests than other groups of civil servants. H.M. Treasury, Staff Relations, p. 3. See also p. 25 for a list of nationally recognized associations.

41

THE STAFF ASSOCIATIONS

Two factors may account, in part, for the vertical pattern of staff organization in Canada—one is structural, the other historical. The system of job classification that has developed in the civil service is very complex and elaborate. It does not easily lend itself to horizontal stratification along the lines of clearly defined service-wide classes. Responding to this structure, civil service groups found it simpler to organize by department or region rather than by class or grade. Even more significant is the historical fact that, in the absence of effective procedures of consultation, it made little difference what form staff organization took. It was not until 1944, thirty-five years after the first staff association had come into being, that the notion of consultation was accepted in principle by the Government. The problem of logical or appropriate bargaining units on the employees' side has only been touched on here. Its importance is likely to increase as new procedures of consultation and negotiation evolve. We will leave its further examination for a later chapter's and turn now to some of the evidence concerning membership structure and competitive recruitment. Statistics on the membership of civil servants in the various associations by class and grade, based on returns for September 1957, were prepared by the Office of the Comptroller of the Treasury and by the Treasury Office of the Department of National Defence. They were derived from the check-off cards signed by civil servants to authorize the deduction from their salaries of membership dues for specified associations. The 16. See Chap. VII.

42

STRUCTURAL WEAKNESSES

figures for three typical departments or divisions will be analysed. It should be noted that, since the period for which the data were available was September 1957, the Civil Service Association of Ottawa and the Amalgamated Civil Servants of Canada are treated as separate organizations. Table I — Department of National Defence Name of Association

Prevailing Classified Rates Employees Employees

National Defence Employees' Ass'n. (C.S.F.) 10,249 6,418 Amalgamated Civil Servants of Canada 2,241 1,542 Civil Service Association 168 339 of Ottawa Civil Service Federation 103 (Direct members) Professional Institute 52 Totals 12,813 8,299

Ships' Crews

301

Total

16,968 3,783 507

301

103 52 21,413

The 12,813 classified employees were distributed among 99 classes and 208 grades. The members of the Professional Institute, which is the most coherent group, included college professors and librarians, Defence scientific service officers, and a graduate nurse. The membership of the National Defence Employees Association, excluding the prevailing-rates employees and ships' crews, ranged over 88 distinct classes. Administrative officers, an architect, assistant technicians, caretakers, clerks, dockyard supervisors, draftsmen, firefighters, gardeners, hospital utility men, maintenance 43

THE STAFF ASSOCIATIONS

craftsmen, security guards, stenographers, storemen, technical officers, telephone operators, and watchmen were all members of this association. The Amalgamated had its members distributed over 24 classes and competed with the Defence Association in a number of them. Thus we had 121 Assistant Technicians, Grade 3, in the National Defence Association and 58 in the Amalgamated; 112 Caretakers, Grade 2, in the Defence Association and 42 in the Amalgamated; 1340 Cleaners and Helpers in the Defence Association and 327 in the Amalgamated; 820 Fireman Labourers in the Defence Association and 230 in the Amalgamated. The Civil Service Association of Ottawa was relatively weak in this Department and the small direct membership of the Civil Service Federation comprised local affiliates which had not become a part of the National Defence Employees' Association, itself an affiliate of the Federation. Table II — Department of Finance (Comptroller of Treasury) Name of Association

Treasury Staff Association of Canada (C.S.F.) Civil Service Association of Ottawa Professional Institute of the Public Service of Canada Amalgamated Civil Servants of Canada Total

Membership

3.105 1,030 23 5 4,163

The 1957-58 establishment of the Comptroller of the Treasury was 4,280. Forty-six classes and one hundred and eleven grades were represented in the four associa44

STRUCTURAL WEAKNESSES

dons. The Civil Service Association of Ottawa had members in thirty-six classes, and the Treasury Staff Association included twenty-seven classes. The membership of these two associations overlapped in twentytwo classes among which were Administrative Officers up to Grade 3, Treasury Officers up to Grade 12, and, at the lower end of the schedule, Clerical Assistants. The Professional Institute was represented in nine classes. An outstanding example of overlapping was provided by Treasury Officers, Grade 10, two of whom were members of the Civil Service Association of Ottawa, one of the Professional Institute, and three of the Treasury Staff Association. Table III — Department of Transport Name of Association

Civil Service Federationi7 Amalgamated Civil Servants of Canada Civil Service Association of Ottawa Professional Institute of the Public Service of Canada Total

Membership

2,738 782 425 346 4,291

One hundred and sixty-four classes and three hundred and forty-eight grades were represented in the four staff organizations. The membership of the Civil Service Federation overlapped with that of the Civil Service Association of Ottawa and/or the Amalgam. ated in seventy-seven of the classes. In this Department, 17. The bulk of this group has since been incorporated in the Canadian Air Services Association, a national departmental affiliate of the CS.F.

45

THE STAFF ASSOCIATIONS

too, the membership of all but the Professional Institute ranged from messengers to clerks, and from technical officers to meteorologists. The Radio Technician class, for example, had 23 members in the Amalgamated, 89 members in the Federation, and 8 members in the Civil Service Association of Ottawa. The statistics of membership thus seem to confirm the general observations about the nature of staff organization. Although the figures given are for 1957, there has been no significant change in the pattern since then. The structure of individual associations tends to parallel that of the classification system. It is vertical rather than horizontal, and the associations are frequently in competition for the same membership. Fifty years have passed since civil service staff associations first made their appearance on the federal scene. The appendix which follows shows that an impressive percentage of the civil service is now organized. It is clear, however, that numbers do not tell the whole story. This chapter has attempted to describe, in broad outline, the associations and their interrelations. It has already been suggested that a historical perspective is necessary in order to understand the course of their development. The next chapter, therefore, will examine the experience of staff relations between 1919 and 1944. It will be, essentially, the story of the efforts of all the staff groups to have the Government agree to a process of joint consultation.

46

APPENDIX—MEMBERSHIP STATISTICS Table I — Federal Government Employment (March 1961) Departmental branches, services, and corporations Salaried Prevailing Rates Ships' Officers & Crews

160,302 23,852 2,761

Total

186,915

a The figures do not include about 15,000 casual employees. b About 130,000 employees come under the Civil Service Act and are known as classified employees. There are some 1,750 classifications defining the position and salary scales of civil servants. About 40 of these classifications refer to prevailingrates employees who are excluded from the Civil Service Act. c The salaried group includes 7,804 members of the Royal Canadian Mounted Police. The majority of these are uniformed constables and officers who are not eligible for membership in the staff associations being studied.

47

THE STAFF ASSOCIATIONS

Table II — Membership in the Staff Associations (Spring 1961) Name of Association

Membership

28,100

CIVIL SERVICE ASSOCIATION OF CANADA CIVIL SERVICE FEDERATION OF CANADA

National Associations Canada Agricultural National Employees Association Department of National Health and Welfare Employees (National) Association Research Council Employees Association (National Basis) Federal Public Works Employees Association of Canada Canadian Air Services Association Dominion Canals Employees Association *Canadian Postal Employees Association Canadian Railway Mail Clerks Federation Federated Association of Letter Carriers National Unemployment Commission Association Customs and Excise Officers Association Canadian Taxation Division Staff Association Department of Veterans Affairs Employees National Association Treasury Staff Association of Canada National Defence Employees Association Canadian Immigration Staff Association Direct Affiliates

784 822 1,466 1,741 2,687 265 10,000 613 6,500 6,971 6,562 5,296 8,444 3,179 17,910 1,425 74,665 5,869 80,534

PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA TOTAL

48

5,665 114,299

APPENDIX—MEMBERSHIP STATISTICS

a Membership figures were provided by the associations. b In assessing the significance of association membership as a ratio of total staff, the following factors must be taken into account: i About 5% of the staff is identified with top management of the civil service and therefore tends to be excluded from membership in a staff association. ii There is a higher ratio of membership in areas of civil service concentration; only six major metropolitan areas have civil service establishments of more than 5,000 employees; together they account for about 58% of the civil service. c The three postal associations in the Civil Service Federation are also affiliated with the Canadian Labour Congress and the Postal Telephone and Telegraph International. d Membership in the Professional Institute is classified under forty-four occupational groupings ranging from Administrators to Veterinarians.

• This association withdrew from the Civil Service Federation in December 1961.

49

Chapter III

JOINT COUNCILS: A MAJOR OBJECTIVE The rights of federal civil servants to organize staff associations and to make collective representations to the Government, the Civil Service Commission, and individual members of Parliament have rarely been seriously questioned. The development of regularized relations on a basis of even limited reciprocity, however, has been slow in maturing. The civil servant has always been assured of his right to petition the Crown; but the Crown, for a long time, did not consider it necessary, or even proper, to consult with its servants on matters affecting their conditions of employment. While representatives of staff associations were regularly invited to submit evidence before various kinds of committees studying civil service matters, they were not expected to participate in the committees' deliberations or to be a party to their reports and recommendations. The Government has consistently maintained that its responsibility to Parliament and the constitutional status of the civil servant in relation to the Crown precluded the kind of employer-employee relationships which are to be found in the sphere of private labour relations. Until 1944, there was very little change in the pattern of communication between staff and Government that had been established early in the history of the associations. There were various ways in which repre51

JOINT COUNCILS: A MAJOR OBJECTIVE

sentations could be made. The most usual avenue of approach led to the Cabinet as the actual centre of governmental decision. Interviews with the Prime Minister or with some of his Cabinet colleagues were arranged from time to time. Briefs setting forth the requests of particular groups of civil servants were read and were usually followed by polite questioning and discussion. After the proper courtesies had been exchanged, the spokesman for the Government would assure the representatives that their claims would receive due consideration. There were, to be sure, variations in this pattern. At times the Cabinet could give an immediate and decisive reply. At other times it might advise the staff representatives to prepare a more detailed brief for submission to the Civil Service Commission, whose expert opinion guided the decisions of the Cabinet or the Treasury Board. But whatever the procedures or formalities, the decisions, in the last resort, expressed the unilateral pleasure of the Government. They were not the product of direct and detailed consultation with those whose interests were to be affected. The president of a staff association, appearing before a select committee of the House of Commons in March 1928, when asked about the work of his association, answered: "It is working, but it has no powers; it depends only upon the good graces of the higher authorities."' The traditional tactic of petitioning members of Parliament has been frequently resorted to by civil service organizations. Individual members, usually 1. Canada, House of Commons, Select Standing Committee on Industrial and International Relations, 1928, Minutes of Proceedings and Evidence, March 7, 1928, p. 12.

52

JOINT COUNCILS: A MAJOR OBJECTIVE

from a party in opposition, have been persuaded to raise questions in the House relating to the interests of civil servants. Speeches have been made in favour of particular civil service objectives, and extensive discussion has sometimes revolved about these issues, particularly during debates on the estimates of the Postmaster General and the Secretary of State. Telegrams and pamphlets have been showered on members of Parliament, and newspapers in areas of civil service concentration have publicized the actions and demands of the staff associations. The net effect of these lobbying devices, however, has been very slight. Pressure-group tactics on the parliamentary level are generally ineffectual under a system of cabinet government. An exchange which illustrates this point occurred in the House of Commons in June 1926. It will be recalled that the Liberal government of the day was in an insecure minority position. Yet, when a member of the Opposition rose with a telegram which he and many of his colleagues had received from the Amalgamated Civil Servants of Canada and read its "demands," Prime Minister Mackenzie King replied: The only statement I would have to make in regard to that particular telegram if it reads as I think I heard it, that certain persons demand that certain things be done, is that the government is not inclined to respond to requests preferred in that way.2

Although the staff associations have long and consistently pressed for a greater role in determining the conditions of civil service employment, they have been, until recently, quite moderate in their efforts and mod2. Can. H. of C. Debates, June 9, 1926, p. 4237.

53

JOINT COUNCILS: A MAJOR OBJECTIVE

est in their expectations. It is only in the past decade that the term collective bargaining has begun to appear in staff publications and in convention resolutions. The pressure, however, has grown in intensity; and the realization of a system of negotiation has emerged as the primary objective of the major civil service organizations. This was the main theme of a "Memorandum of Proposals" placed before a group of ministers by the Civil Service Federation of Canada on August 20, 1957: 1. The Civil Service Federation of Canada, representing some 75,000 Federal Government employees, in convention assembled in 1953 and 1956, was given a mandate to seek the removal of Section 55 of the Industrial Relations and Disputes Investigation Act. 2. Convention proceedings make it amply clear that our members were not entirely satisfied with the employer-employee relations which existed in the Government service prior to the recent change in Government. It is also clear that they wish to be placed in the same position relative to negotiating their terms of employment, working conditions, and salaries as are other citizens of Canada.3

One may well wonder why this demand for collective bargaining has come so late in the history of Canadian civil service unionism. Two reasons suggest themselves. The first is the relative weakness of the staff associations in the period preceding World War II. 'Whilst the associations had acquired some strength in the 1920's, much of it had been dissipated during the depression years of the 1930's. Civil servants were much too anxious about holding on to whatever security their employment offered to allow themselves to become enS. Reported in the Civil Service Review, XXX (September 1957), 272.

54

WHITLEYISM

gaged in a struggle with the Government over the question of bargaining rights. Toward the end of the second world war, however—with inflation, a tightening labour market, and the general maturation of the Canadian trade-union movement acting as stimuli— the associations grew in strength and began to raise their levels of aspiration. The second reason is the growing disenchantment with the machinery of joint consultation which had been instituted in 1944. Staff relations in the period between 1919 and 1944 were characterized by a moderate but sustained campaign to achieve a National Civil Service Council based on the model of the Whitley Councils in the British civil service. Many civil servants considered this to be the kind of institution through which they could influence decisions about their conditions of employment most effectively. It was, therefore, quite logical for the associations to focus their efforts on the achievement of joint councils. Indeed, the very notion of collective bargaining in the civil service seemed quite unthinkable at that time. The experience with joint consultation since 1944, however, has apparently disappointed the associations, hence the increasing pressure for direct negotiating procedures. The story of the effort to achieve a joint council and a critical review of the council's operation are a necessary prelude to an understanding of current problems in civil service staff relations. Whitleyism Whitleyism, as it is often called, was introduced into the British civil service in 1919. It was a device that had been applied, with some success, in the field of 55

JOINT COUNCILS: A MAJOR OBJECTIVE

industrial labour relations during the first world war, and it was thought that it might be usefully adapted to the civil service. An agreement between the British Government and the staff associations in 1919 led to the establishment of Whitley Councils on the national as well as the departmental or branch levels of the public service. The councils are made up of representatives of the government-employer (Official Side) and of the employees (Staff Side) in equal numbers. They meet regularly to discuss a wide range of issues which concern the civil service and which may include problems of conditions of employment such as remuneration, hours of work, leave, and allowances. If, after consultation, both sides agree on an issue, they may recommend a course of action to the Government. Agreement must be between the two sides and is not determined by a majority of the Council as a whole. The councils are essentially advisory bodies, and their recommendations are in no way binding on the Government. An agreement of both sides, however, presupposes the Government's readiness to accept the advice tendered; and, in practice, recommendations regularly become operative. If both sides cannot agree, the issue remains unresolved. It should be noted that the introduction of Whitleyism in Britain was not intended to supersede any other form of staff relations, and a highly-developed process of direct negotiations takes place outside of the Whitley machinery. The First Steps At its Eighth Convention held in March 1919, the Civil Service Federation of Canada passed a resolution 56

THE FIRST STEPS

calling for the establishment of a joint council in the Canadian civil service, This was before the Whitley Councils had been fully set up in the British civil service. The apparent impatience of Canadian civil servants for such a council was quite understandable. The Civil Service Act of 1918 had precipitated a general reform of the civil service. A firm of experts in business administration had been brought in from the United States to advise the Government on reclassification. The civil servants, who had pinned much of their hopes on the new classification schedules, were most anxious for an opportunity to have a say in what was being planned for them. The idea of a joint council seemed both appropriate and urgent at that time. The firm of Arthur Young and Company, which had prepared the first classification report, had also recommended the establishment of some form of employees' advisory council which could be consulted by the Government or Civil Service Commission on matters of mutual concern. In August 1919 the Government established a Board of Hearing and Recommendation to hear class and individual appeals with respect to classification. Among the five members of the Board were two named by the Civil Service Federation as representatives of the civil servants. Some staff associations thought that if this board were given broader terms of reference it might become the forerunner of a joint council. The board, however, ceased to function as soon as its immediate duties came to an end. "Practically the only encouragement for some five years was the pronouncement of the Right Hon. W. L. M. King who, speaking in Ottawa before the general elections of 1921 and 1926, voiced his well-known convictions 57

JOINT COUNCILS: A MAJOR OBJECTIVE

regarding cooperation in relations between employer and employee, and referred sympathetically to the question of a Civil Service Council."4 A committee of deputy ministers which was set up in June 1922 to consider "matters affecting the Civil Service of Canada" expressed its opposition to the idea of a civil service council: Your Committee . . . has reached the conclusion that the addition of a Whitley Council to the authorities by which the Civil Service is at present regulated and controlled could have no other result than to increase, rather than to diminish, the difficulties under which the Civil Service is labouring at the present time.5

The Malcolm Committee of the House of Commons, from whose published proceedings the above quotation is culled, gave the staff associations the opportunity to present their views on the subject of joint councils. There was a high degree of consensus among the various groups on the principle of consultation. Some associations had even prepared draft constitutions for the projected council, modelled on the Whitley system in Britain; but the unity of the associations on principles was weakened by the diversity of their views on matters of detail. This was brought out in the oral evidence. Although committee members and staff representatives frequently referred to Whitleyism in the British civil service, one is struck by the general ignorance of the day-by-day operations of this institution. 4. "A National Civil Service Council," Civ. Serv. Rev., II (September 1928), 123. 5. Canada, House of Commons, Proceedings of the Special Committee appointed to inquire into the operations of Chapter 12, 8-9 George V, An Act respecting the Civil Service of Canada, etc., 1923, Exhibit L, pp. 1040-1.

58

PARLIAMENTARY TACTICS

Despite the fact that councils figured so largely in the hearings of the Committee, they were ruled out in its final report: Your Committee, however, is unable, by reason of the diversity of evidence submitted, to recommend the acceptance of any definite plan now in existence as being adaptable to the conditions existing in this country under the present Civil Service Act.6

Nevertheless the Malcolm Committee recommended the establishment of departmental personnel boards, giving equal representation to the department, the Civil Service Commission, and departmental employees, "to act in an advisory capacity in matters of classification, promotion, dismissal, salary revision, leave of absence, and other kindred problems affecting the welfare and efficiency of the departmental service.''' This recommendation was not implemented. Parliamentary Tactics The desire of civil servants for a joint council also found its spokesmen in the House of Commons. The late J. S. Woodsworth was a most consistent protagonist, though his representations did not always meet with sympathy. Thus in the debate on supply in 1924, when an item for joint industrial councils came up in the estimates of the Department of Labour, Mr. Woodsworth raised the question of Whitley Councils for the civil service. The Hon. James Murdock, in his reply, referred to the jurisdiction of the Civil Service Commission to determine certain questions affecting 6. Ibid., Second and Final Report, p. xi. 7. Ibid.

59

JOINT COUNCILS: A MAJOR OBJECTIVE

wage rates and went on to say: "There is nothing in the law which would specifically say to them: You shall give civil servants an opportunity for a voice and a vote in the determination of those questions."8 When, after the general election of 1926, it seemed that there would again be no action on a civil service council, the staff organizations proceeded to consolidate their forces for a more intensive campaign. The Civil Service Federation met in convention in October 1926, and adopted a resolution calling for the early appointment of a committee comprising an equal number of staff and official representatives to draft a constitution for a joint council. This was followed by a conference of all the major civil service associations at which an effort was made to harmonize the various viewpoints so that a unified policy might be presented to the Government. The conference met in December and, with the exception of the Professional Institute of the Civil Service of Canada, all participating groups agreed upon a policy which the Federation was authorized to present on their behalf. The formal presentation was made in February 1927, in an atmosphere of courtesy and optimism, but nothing concrete was undertaken by the Government. On February 24, Mr. Woodsworth rose in the House of Commons to introduce a private member's bill to amend the Civil Service Act by providing for the establishment of joint councils. The bill was given first reading but was not heard of again during that session. The next stage in this development came close to achieving the objectives of the associations. On January 8. Can. H. of C. Debates, May 20, 1924, p. 2358.

60

PARLIAMENTARY TACTICS

30, 1928, Mr. Woodsworth re-introduced his bill to provide for civil service councils. Under the title "Bill No. 4, An Act to amend the Civil Service Act (Councils)," it received first reading. It was read for a second time without debate on February 10, and was referred to the Select Standing Committee on Industrial and International Relations for study. In early March of that year, the Civil Service Federation again approached the Cabinet with its request for councils. The Prime Minister expressed his sympathy for the project and recommended, as a practical course of action, that the associations should appear before the committee considering Mr. Woodsworth's bill. He suggested that a well-prepared case could be a factor in influencing the committee to report in favour of the bill. The committee hearings ranged over a wide area. Except for the reservations of the Professional Institute of the Public Service of Canada, the associations were agreed on the desirability of councils as a means of securing staff participation in formulating advice to the Government on civil service matters. By this time there was more information about the operation of the Whitley Councils in Britain and a greater awareness of the problem of joint consultation in a public service. The Undersecretary of State for External Affairs, a close associate of the Prime Minister, appeared as a witness and introduced the constitutional issue of the Government's ultimate responsibility to Parliament. He submitted a declaration which had been made jointly by the Official and Staff Sides of the National Whitley Council in Britain acknowledging that "the Government has not surrendered and cannot surrender its liberty of action in the exercise of its authority, and 61

JOINT COUNCILS: A MAJOR OBJECTIVE

the discharge of its responsibility in the public interest."9 This argument was accepted and amplified by the representative of the Civil Service Association of Ottawa: It would be quite an unheard of thing that any Civil Service organization should advocate the setting up of a board which would over-rule Parliament. That was so very obvious to us that we did not think it necessary to mention it.10

The witness, however, stressed that, in practice, the understanding that the decisions or advice of the council would become operative "was really the crux of the whole matter, for unless the National Council can give a decision, which for all intents and purposes is final, I do not believe that there would be very much use in setting up councils at all." A question, the significance of which will become more apparent when we examine the present experience with joint consultation, may be quoted here for its historical interest. Mr. Woodsworth, the sponsor of the bill, asked the President of the Civil Service Federation: Q. Dr. Roche (chairman of the Civil Service Commission) seemed to be afraid that the question of salary would enter into, and be discussed by, the proposed National Board. Was it the idea of your organization that the salary question should be discussed by the National Council? — A. Yes.12

While the associations differed on some points of detail, they wisely refrained from allowing them to 9. Can. H. of C. Select Standing Committee on Industrial and International Relations, 1928, Minutes of Proceedings and Evidence, No. 1, p. 4. 10. Ibid., p. 39. 11. Ibid. 12. Ibid., No. 5, p. 76. (See Chap. IV, p. 89ff.)

62

PARLIAMENTARY TACTICS

become significant issues. They sought the acceptance of the principle and urged the formation of a preliminary joint committee to prepare a draft constitution. The hearings seemed to be going well from the staff's point of view, as the committee's sympathy for the objects of the bill became apparent. But a rather innocent technicality, whose implications were not fully grasped at the time, proved to be an important factor in ultimately frustrating the hopes of the civil servants. The committee had before it a bill which dealt in some detail with the matter of national and departmental councils. The principle of the bill was well received, but the witnesses showed little willingness to discuss the details. They felt that these were better left for consideration by the suggested preliminary committee. The standing committee of the House, however, was faced with the necessity of reporting on the bill in question. The members might have insisted on a clause-by-clause examination of the bill, despite their own and the witnesses' reluctance to become so involved. During the course of the hearings it occurred to, or was brought to the attention of the committee that the general objects of the bill might be achieved without new legislation. The British Whitley Councils had, after all, been established by a Treasury Minute and there seemed to be no reason why the Canadian government could not do it by Order in Council under the authority of the existing Civil Service Act. Indeed, this approach suggested a desirable flexibility. The Governor in Council could name a preliminary committee to draft a constitution and, when this was completed to the satisfaction of those concerned, could proceed with 63

JOINT COUNCILS: A MAJOR OBJECTIVE

the establishment of the council. The plan was disarming in its simplicity. It would relieve the committee of a tedious responsibility and yet satisfy the civil servants by giving them a constituent role in defining the scope of the projected council's operations. There was, however, a pitfall, which was ignored by the staff witnesses even after it had been pointed out by Mr. Woodsworth. The committee might propose a course of action to the Government and to Parliament, but there was no certainty that the Government would heed its advice without explicit legislation to that effect. The matter would be left entirely within the Government's discretion. At one point, near the end of the committee's proceedings, an interesting exchange took place between Mr. Woodsworth and the President of the Civil Service Federation: Q. Do you think this whole arrangement . . . should be merely a matter of departmental arrangement, or under an Order in Council, or do you think it should not [sic] be arranged by legislation? —A. I do not consider that it is material whether a National Civil Service Council is established by amendment of the Act or by Order in Council. The main thing in our view is, to get a National Civil Service Council. We feel that if you would give us that, we will do the rest. Q. This is the point I want to get at; you have been good enough to say that it is good of us to bring this into practical politics. That has been my purpose, to get some action. Now that we have a Bill actually before the house, and under consideration by a Committee, it would seem to me that your body is very largely responsible for side-tracking it and postponing any action. . . . I would suggest that you are assuming a fairly heavy responsibility for the Civil Servants, if you refuse either to adopt or so modify this Bill that it will have some chance of passing the House because

64

PARLIAMENTARY TACTICS

it will then be taken out of politics again and sent back to where it was before, in the realm of pious resolutions.13 Mr. Woodsworth was understandably disappointed with the turn of events; his bill was about to be shelved. But it is strange that the associations did not share his foreboding and were quite ready to go along with the committee's view that the matter should be left to the discretion of the Governor in Council. The committee reported to the House on March 27. It endorsed the principle of a National Civil Service Council and recommended that the Council's constitution be the product of joint consultation between the parties concerned. It called for the establishment of the Council "by the government" immediately upon completion of a mutually acceptable draft constitution. Because the committee felt that the objects of the bill might be attained by a simple Order in Council, it recommended "that Bill No. 4 be not further proceeded with."" The report was approved by the House of Commons. Civil servants were elated because their objectives seemed to be so close to realization. Yet by May 9 the staff associations were again petitioning the Government—this time to implement the committee's report at the earliest opportunity. In August 1928 there was an upsurge of hope when the Minister of Labour invited the major staff organizations to nominate representatives to a National Civil Service Council Drafting Committee. But nothing concrete followed until May 1930, when the Government stood on the threshold of another general election. 18. Ibid., pp. 77-78. 14. Ibid., Second Report, No. 6, p. iv.

65

JOINT COUNCILS: A MAJOR OBJECTIVE

Then, at last, the Government acted by P.C. 970 of May 7, 1930. The Order in Council provided for the creation of an interim committee to draft a constitution prior to the actual establishment of a National Civil Service Council. The committee was to be made up of representatives from the major associations, departmental ministers or persons designated by them, and one representative from the Civil Service Commission. The first meeting of the committee was called for October 1930. But the general election had intervened, and there was a change of government. While the new Conservative government apparently had little enthusiasm for the council plan, it did not immediately discourage the civil servants. The new Minister of Labour called a conference of civil service associations late in 1930 and again in 1931. There was some discussion as to the advisability of setting up a departmental council in a specific department for a trial period in order to test the workability of the scheme. No action followed, however, and the matter was eventually dropped. An amusing sidelight on the vagaries of politics was the vigour with which former Liberal ministers pressed the new Government on its attitude towards civil servants. The Government had instituted a general cut in civil service salaries in the early part of 1932. The Hon. Peter Heenan, the former Minister of Labour, deplored the cuts and criticized the Government for its failure to consult with the staff organizations before taking such drastic action. He referred generally to the rights of employees to organize themselves and to negotiate with their employers, thereby implying that civil servants should enjoy similar consideration. He 66

PARLIAMENTARY TACTICS

reminded the House of its unanimous support of the plan for a civil service council and called attention to the enabling Order in Council of May 7, 1930. A few days later, the former Prime Minister also joined in criticizing the salary cuts for their arbitrariness. He said: "I do think that if the ministry had approached this matter by conference, by consultation and by negotiation .. . the main object might have been attained, but it would have been obtained with good will.''15 He also asked why the National Civil Service Council had not been established in accordance with the Order in Council. When, a few weeks later, the Hon. Mr. Heenan again raised the question of implementing P.C. 970 and asked how matters stood, the Right Hon. R. B. Bennett rose to declare: "The matter stands just where it was left by the hon. gentleman. He passed his order in council and stopped. The stop still stands."16 The select Special Committee of the House of Commons on the Civil Service and Civil Service Act, which was set up in March 1932, heard a repetition of the claims of civil servants for joint councils. On this occasion some of the associations made a clear distinction between the functions of councils and those of appeal boards. Councils, they suggested, might deal with matters affecting classes of employees or the service as a whole, while appeal boards might hear individual grievances regarding such matters as promotion, dismissal, and classification. The committee's report completely ignored the question of councils. Among its substantive recommendations, however, was one for the creation of an appeals board to hear individual griev15. Can. H. of C. Debates, March 4, 1932, p. 810. 16. Can. H. of C. Debates, May 25, 1932, p. 3425.

67

JOINT COUNCILS: A MAJOR OBJECTIVE

ances. This was not implemented in 1932 nor even in 1939, when another special committee of the House made a similar recommendation. The Role of Treasury Board The depression years of the 1930's were a time of general quiescence in the activities of the staff associations. It was during this period that Treasury Board asserted its authority and initiative with regard to departmental establishments and rates of compensation. P.C. 44/1367, which was approved by the Governor General in Council on June 14, 1932," had the effect of freezing salaries and decreasing staff. A Treasury Board minute of July 18, 1932, amplifying the Order in Council, directed "that the said Order in Council be so interpreted as to attain the greatest reduction possible in the cost of personnel."" The Civil Service Commission found its statutory independence to recommend changes in organization and compensation narrowly restricted by a series of "Staff Control Regulations" emanating from Treasury Board. A revealing phrase in the Commission's report for 1934 indicates a departure from the role envisaged for it in the Civil Service Act, 1918. The report states that the "Commission has continued to act, during the year, as the investigating agent for the Treasury Board in connection with departmental requests for additional staff."19 17. The text of this order may be found in the Twenty-fourth Annual Report of the Civil Service Commission of Canada for the year 1932 (Ottawa, 1933), Appendix A, p. xix. 18. Ibid., p. xxi. 19. Twenty-sixth Annual Report, 9. (My italics.) The Civil Service Act nowhere implies that the Commission might act as the agent of the

68

THE ROLE OF TREASURY BOARD

Although the staff associations continued to petition for reforms in the machinery of staff relations, their efforts during these years lacked a spirit of militancy. Their main preoccupation seemed to be with problems of tenure. During World War II, however, a new aggressiveness became apparent. The war effort required a great expansion of the civil service at a time when labour was in increasingly short supply. This enhanced the bargaining position of the associations. In addition, rising costs due to inflation stimulated successive demands for a readjustment of salary scales and working conditions. The Government had anticipated both the extraordinary growth of the civil service and the inflation arising out of growing shortages in consumers' goods. A number of Orders in Council and regulations under the War Measures Act, designed to maintain a tight rein on expenditures for civil service operations, were passed on the recommendation of Treasury Board during the spring of 194020 These granted extensive powers to the Board with respect to salaries and organization within the civil service. The Board exercised its powers with a good deal of zeal and civil servants began to feel restive under its strict regime. Some of their concern was strongly expressed for them in a sharp criticism of the Board by the Liberal member for Ottawa West:

Governor in Council. In calling attention to this development I am not suggesting that it could have been otherwise; but it does raise questions about the status and role of the Commission. Some of these will be discussed in Chapters VI and VII. 20. See, for example, references to P.C. 1/1569 of April 19, 1940, and P.C. 82/1905 of May 10, 1940, in Canadian War Orders and Regulations, 1943, Vol. 1, 230.81.

69

JOINT COUNCILS: A MAJOR OBJECTIVE

Under the guise of controlling expenditures the treasury board has gradually and continuously extended its authority over the personnel of the civil service, and has done this without giving the civil service any right of appeal, either to the treasury board or from its decisions. . . . It seems to me that this control by the treasury board is indirect control without direct responsibility.v

The Government had, in fact, begun to examine its personnel policies earlier that year. P.C. 2/584, approved by the Governor General in Council on January 23, 1943, provided for the creation of a committee to advise Treasury Board on matters of personnel management "in respect to the Public Service of Canada." The committee's chairman was Mr. H. J. Coon, an executive of the Bank of Nova Scotia. Its other members were two Civil Service Commissioners, a member of the National Harbours Board and an assistant Deputy Minister of Finance. The order had not, at first, been tabled in the House, and members only became aware of its existence when they learned that various individuals and representatives of staff associations had been invited to appear before the committee. Sensing an issue that might embarrass the Government, Opposition members began to raise questions about the committee and its work. A Conservative member who asked whether civil service organizations had been given representation on the committee was answered rather brusquely by the Minister of Finance: "I have declined and feel that I must decline to recommend that a representative of the civil servants, whose views we know and have before us, should be added to a body such as 21. Can. H. of C. Debates, March 15, 1943, p. 1241.

70

THE ROLE OF TREASURY BOARD

we have set up for advisory purposes."22 When members asked whether the committee's report would be tabled, they were informed that it would be regarded as a confidential document since it had to do with internal management only. In April, under sustained pressure, the Government agreed to table the Order in Council which established the committee. But a formal resolution to table the committee's report was defeated by a vote in the House on June 7, 1943. The report was never made public. An examination of the terms of reference of the Coon Committee indicates that it was given a great deal of scope. The committee was asked to consider the problems of detail arising from the rapid growth of the civil service. It was asked to review the orders of 1940 and 1941 relating to salaries, permanencies, and the cost-of-living bonus, as well as a number of other technical questions. In addition to these specific matters, the committee was requested to deal with more general questions of personnel administration. Paragraph 14 of the Order in Council states: That it shall be the function of the Committee to enquire and report to the Board in respect of: (a) The features of personnel management referred to specifically herein; (b) Any other questions which may be referred to it by the Board; (c) Any related subject to which the Committee desires to draw attention.23

The committee made its report to Treasury Board 22. Can. H. of C. Debates, February 22, 1943, p. 574. 23. Canadian War Orders and Regulations, 1943, Vol. 1, 232.

71

JOINT COUNCILS: A MAJOR OBJECTIVE

on May 17, 1943. The Government's refusal to make the report public was quite justifiable. It was a "housekeeping" document, and to have divulged its specific contents would have unnecessarily inhibited the Government's freedom of action in matters of administration for which it was ultimately responsible. It was, to some extent, possible to guess at the tenor of the report from some of the substantive adjustments in the conditions of employment which were made after it had been submitted. Bonus payments which had been restricted to those earning less than $2,100 per annum were broadened to include employees in the $2,100 to $3,000 range. Statutory increases for temporary employees were permitted. Limitations on permanent appointments were relaxed, and so on. There was, however, nothing definite to suggest that the committee had made any recommendations with respect to "general problems connected with present management and future demobilization." The Order in Council which had established the Coon Committee was not rescinded until well after the end of the war, and one might have expected the committee to continue with its deliberations on the more general problems. If the committee did continue to meet, there is nothing to indicate that it issued any subsequent reports. It would seem that the committee had become inactive when the Government, towards the end of 1943, finally decided to introduce a scheme for joint consultation. Joint Consultation It was becoming quite evident by the end of 1943, that plans for a civil service council were on the Gov72

JOINT CONSULTATION

ernment's agenda. The Seventeenth Convention of the Civil Service Federation, which met in November, passed a resolution which not only urged the Government to proceed with the creation of the council, but actually recommended the form of its membership. An editorial in The Civil Service News stated that there were "indications that favourable consideration is being given by the government to the request of the Civil Service Associations for the establishment of a National Civil Service Council."24 On December 22, the Civil Service Federation of Canada submitted a brief to the "Sub-committee of the Cabinet on Civil Service Problems" calling for the immediate implementation of P.C. 970 of 1930.25 Two months later the Minister of Finance informed the House of Commons of the Government's decision to establish a joint council for the public service of Canada. In conformity with the government's announced policy of promoting employee representation in private industry and the improvement of industrial relations generally, the treasury board has decided to provide for the setting up of an employer-employee council in the public service of Canada. . . . As it is desirable that the new organization and procedure should evolve as a result of consultation and general discussion rather than being imposed from above in any cut and dried fashion, we are immediately suggesting a tentative constitution 26

P.C. 3676 of May 16, 1944, formally established the National Joint Council of the Public Service of Canada. The first meeting of the Council was held on June 24. The Civ. Serv. News, December 1943, p. 273. 25. The Civ. Serv. Rev., XVII (March 1944), 26. 26. Can. H. of C. Debates, February 24, 1944, p. '778.

73

JOINT COUNCILS: A MAJOR OBJECTIVE

15. It was addressed by the Hon. J. L. Ilsley, Minister of Finance, who outlined the Government's view of the Council's projected role as an advisory body. The staff associations were generally pleased with this development. They had been campaigning for a joint council since 1919, and they now looked forward to what they hoped it would accomplish for them. But their optimism was tempered with restraint. An article in the journal of the Civil Service Federation which described the first two meetings of the National Joint Council with a good deal of enthusiasm, ended on this note of caution: The Council will not work miracles. It will not solve problems of long standing by magic. It will be only by patient application of sound principles that the Council will be able to show what it can really effect in the way of improvement. In this, Civil Servants must be prepared to lend their hearty and earnest sympathy and support.27

27. The Civ. Seru. Rev., XVII (June 1944), 142.

74

Chapter IV JOINT CONSULTATION IN PRACTICE When the Prime Minister was asked in February 1951, whether steps were being taken to provide civil servants with the same facilities for collective negotiation as were provided for employees of private corporations, he replied: The answer is that no steps are being taken because it is considered that the appropriate machinery for these purposes was set up by P.C. 3676 of May 16, 1944, which established the national joint council of the public service of Canada and the subsequent treasury board minute of March 8, 1945, approving the constitution of the council.' The Prime Minister's statement really begged the question. The government may well have been satisfied with joint consultation as it was then working. The point, however, was whether the staff shared this satisfaction. It did not. It seems evident from the survey in the previous chapter that the staff associations, in 1944, believed that the National Joint Council would provide an acceptable alternative to collective bargaining. By 1951, civil servants had already begun to evaluate their experience in the Council and to find it wanting. Its many concrete accomplishments, before and after 1951, did little to dispel their growing dissatisfaction with its 1. Can. H. of C. Debates, February 21, 1951, p. 542.

75

JOINT CONSULTATION IN PRACTICE

shortcomings as the "appropriate machinery" for negotiation. The attitude of the staff was well expressed in an address to the Twenty-first Convention of the Civil Service Federation of Canada by one who would normally be expected to represent the views of the Official Side. Speaking on July 9, 1956, Mr. A. J. Boudreau, a Civil Service Commissioner, declared: It has been taken for granted for a number of years that the National Joint Council of the Public Service of Canada was sufficiently equipped and authorized to act as a negotiating body to take care of all employer-employee relations in the Canadian Government. We are questioning that theory very definitely. (Applause.) The National Joint Council is a necessary body and it must remain, but let it be recognized as an official discussion group, as a necessary study body ... we are not convinced that at the present time it is the right sort of negotiating procedure. (Applause.)2

Why was it that the Council failed to live up to the expectations of the staff associations? To answer this question it is necessary to examine its formal structure and to trace its practical development over the years. A number of points in Mr. Ilsley's statement which announced the Government's intention to establish the Joint Council deserve attention for the light they throw on the subsequent developments. He indicated that the Government was favourably disposed towards the British practice. In working out this policy the treasury board will accept as its general model, with the necessary adaptations to suit Canadian conditions, the pattern which has been evolved 2. Reported in The Civil Service Review, XXIX (September 1956). 359.

76

JOINT CONSULTATION IN PRACTICE

in the United Kingdom through the application of the socalled Whitley Councils to the British public service.3

He also suggested the desirability of extensive staff participation in drafting the Council's constitution, although his statement contained an elaborate outline of what was in fact to become the final constitution. It took rather longer than anticipated to launch the National Joint Council. The Minister of Finance suggested that the delay was due to differences among the staff associations on the question of representation on the Council. He expressed the belief that, as the joint council scheme was extended to operate on a departmental as well as on the national level, it would be much easier to find agreement on representation.4 On May 16, 1944, the Government issued P.C. 3676, which formally established the National Joint Council of the Public Service of Canada. Appended to the Order was a draft constitution which was intended to have effect until a final constitution was approved by Treasury Board after deliberation and consultation within the Council. The staff associations were at first pleased with the provision for their participation in drafting the final constitution, but their enthusiasm proved to be premature.5 One may well wonder whether there could have been any meaningful joint deliberation on a constitution after the Government had presented its own version in detail. 3. Can. H. of C. Debates, February 24, 1944, p. 778. 4. Can. H. of C. Debates, May 16, 1944, pp. 2945-6. 5. "The Association also believes that one step taken which augurs well for the success of the Council is that the constitution under which it is to function is to be drawn by its own members, not imposed from above. In this manner the effectiveness and success of the Council in dealing

77

JOINT CONSULTATION IN PRACTICE

The Whitley Councils in Britain had not begun to function until a National Provisional Joint Committee had agreed on a constitution which differed substantially from the original recommendations of the Heath Committee (a committee set up by the Treasury). By contrast, the final constitution of the National Joint Council which was approved by a Treasury Board minute on March 8, 1945, differed from the draft constitution only in three minor points. It provided for a change in Staff Side representation, increasing it from eight to ten. It gave a more detailed and specific definition of the mode of selection and the duties of officers. It permitted the Council to make recommendations to the Governor General in Council as well as to Treasury Board and/or Civil Service Commission. These could hardly be called substantive changes. The associations, however, seemed to be reasonably satisfied that the constitution embodied the provisions which they desired. Representation on the National Joint Council The question of composition and membership of the National Joint Council, while essentially a technical one, is not without its difficulties. There is no requirement for the numerical equality of Staff and Official Sides, as in the Whitley Councils. Such equality is not deemed important since all recommendations must be preceded by the concurrence of both sides. Officialside membership is set at a minimum of eight and must

with civil service matters will depend largely upon the constitution decided upon by the Council members." The Civ. Serv. News, March 1944, p. 65.

78

REPRESENTATION ON THE JOINT COUNCIL

not exceed staff-side representation. Representatives from the Official Side must be "senior administrative officers in the public service and shall be appointed by the Governor General in Council."6 The present Official Side includes, among others, a Civil Service Commissioner, the Secretary of the Treasury Board, the Deputy Postmaster General, and the Clerk of the Privy Council (who is also Secretary to the Cabinet). An interesting aspect of the actual membership on the Official Side is the inclusion of a member of the Civil Service Commission. When the Minister of Finance made his announcement in February 1944, he said that Treasury Board would nominate "senior civil servants to act as the representatives of the government, included amongst whom will be a representative of the Civil Service Commission."7 The Chairman of the Commission was appointed to the Council in 1944 and, indeed, served as chairman of the Official Side until his retirement in 1955. While it is possible to argue that the Civil Service Commission is part of the public service, it is rather more difficult to justify the appointment of a Civil Service Commissioner to the Council as a representative of the Government Side. This seems to run counter to the oft-expressed official view which regards the Civil Service Commission as the impartial administrator of the merit system and expert advisor on all other civil service matters. If anything, the role of a Civil Service Commissioner on the Joint Council should, perhaps, have been that of an impartial chairman and not that of a member of one of the Sides. The 6. Constitution of the National Joint Council of the Public Service of Canada, sect. 3(b). 7. Can H. of C. Debates, February 24, 1944, p. 779.

79

JOINT CONSULTATION IN PRACTICE

significance of this point will become more explicit in Chapter VI. Representation on the Staff Side was a simple matter at first, but it has become a more controversial issue in recent years. The original intention was to allow one representative to each national civil service association. In 1944, these were the Professional Institute, the Amalgamated Civil Servants of Canada, the Civil Service Association of Ottawa, the Civil Service Federation, and six national affiliates of the Federation. The merger of the Amalgamated and the Ottawa Association in 1958 reduced their representation on the Council from two to one. In the meantime, there had been an increase in the number of national departmental organizations affiliated with the Civil Service Federation, and each had claimed the right to send a representative to the Joint Council. The Civil Service Association of Canada, with its membership now approaching 30,000, finds it incongruous that it should have the same representation as the Railway Mail Clerks Federation with fewer than 700 members. The problem of staff-side membership would be a very serious one indeed, if the Council were performing a really important role in staff relations. Because it is not, as will be seen, the anomalies of representation may produce minor irritations, but they do not seriously interfere with the Council's functions. Implementation of Agreements A comparison of the constitution and experience of the National Joint Council with those of the Whitley Council scheme should provide a useful critical per80

IMPLEMENTATION OF AGREEMENTS

spective, since the expressed intention of the Government was to adapt the British pattern to the Canadian civil service. The Government, from the very start, attempted to define the status of the Council in precise constitutional terms. The Minister of Finance emphasized its purely advisory role: The national joint council will act in an advisory capacity to the treasury board in all matters affecting the conditions of work in the public service. ... The Council will, of course, have no executive powers which would impair the responsibility of the cabinet or treasury board or Civil Service Commission, or possibly infringe upon the authority of parliaments

To soften the implication that the Council would, in fact, have no real power, Mr. Ilsley indicated that, if it showed seriousness and responsibility in its operations, its recommendations could not but carry great weight with the various decision-making authorities. The position is legally and technically correct and it is formalized in the Council's constitution. Section 6 states that "the duties of the National Joint Council shall be to make recommendations" and Section 7(e) specifies that "decisions of the Council shall be arrived at by agreement between the two sides . . . and shall be reported to the authority deemed appropriate." This formulation represents an interesting deviation from the constitution of the Whitley Councils. When the Heath Committee had made its recommendations to the Treasury it, too, stressed the advisory nature of the projected joint councils. The British staff associa8. Can. H. of C. Debates, February 24, 1944, p. 779.

81

JOINT CONSULTATION IN PRACTICE

tions, however, reacted strongly against so vague a definition of the councils' role and were able to exact an important concession from the Government. The final Whitley Council constitution thus provides that decisions "shall be arrived at by agreement between the two sides, shall be signed by the chairman and the vicechairman, shall be reported to the Cabinet, and thereupon shall become operative."9 This is rather strong language and probably implies more than was meant or is legally feasible. It is clear that because of the overriding authority of Parliament a Whitley Council agreement cannot bind the Government. But the phrasing has had a good psychological effect on the operations of the councils, and experience has, in fact, been in keeping with its promise. The issue, in reality, is largely academic. Both sides must agree before any recommendations can be made. The agreement of the Official Side clearly implies the Government's approval in advance. Therefore, unless Parliament itself takes the initiative to the contrary, there is no reason why council recommendations should not become operative. This was recognized in the 1931 report of the Royal Commission on the Civil Service in Britain: The members of the Official Side possess no power or authority except what is delegated to them by Ministers. ... In fact the position is, and must remain, that, unless the Cabinet through Ministers authorizes the Official Side to agree, no agreement can be reached on the Council.10

9. Constitution of the National Whitley Council, sect. 16. (My italics.) 10. Quoted in H. M. Treasury, Staff Relations in the Civil Service (London, 1958), p. 12.

82

IMPLEMENTATION OF AGREEMENTS

One would expect, with minor reservations, that this would apply to the Canadian situation as well. The fact that representatives of the Official Side on the Council are men of senior administrative rank and therefore in close contact with their ministers, suggests that there must be approval on the ministerial level before the Official Side commits itself to an agreement with the Staff Side. Indeed, Canadian officials are much less inclined to act on their own than are their counterparts in the United Kingdom. It would seem that, having agreed to a joint recommendation, the Government should be prepared to give it speedy and complete effect. It has not, however, always turned out that way. A booklet commemorating the tenth anniversary of the National Joint Council makes this interesting assertion: "Confidence in the National Joint Council's advice and recommendations is shown in the fact that none of its recommendations has been rejected."" This statement may be technically correct, if one takes a sufficiently long-range view, but a number of important cases suggest that some qualification is necessary. The provision for deducting membership dues for the various staff associations from salary cheques (the check-off) was placed on the Council's agenda, at the request of the Staff Side, in mid-1950. A general committee was set up to investigate and report on the cost of introducing this procedure. At the same time the general principle of the check-off was taken under study by a committee of the Official Side. The commitII. The National Joint Council of the Public Service of Canada, 19441954 (Ottawa, 1954), p. 11.

83

JOINT CONSULTATION IN PRACTICE

tee of the Official Side finally reported to its parent body in October 1951, when the matter was discussed in full Council, and some kind of joint agreement reached. This was reported to the Treasury Board. At its meeting three months later, however, the Joint Council was informed that the Government had turned down its recommendation. On March 6 the Staff Side, with the approval of the Official Side, addressed a letter to the Prime Minister requesting the reconsideration of the Government's decision in view of the unanimous recommendation of the Council. In his reply, the Prime Minister advised the Staff Side that the Government's decision was not final and irrevocable and that the matter would be dealt with again. On October 30, 1952, the Council again approved a joint memorandum recommending the check-off. This was submitted to the Cabinet through the Treasury Board. Five months later, on March 24, 1953, the voluntary check-off was approved by Treasury Board minute. A year and a half had elapsed from the time of the Council's recommendation to its final acceptance by the Government. In view of this kind of experience, one must note a real difference from Whitley practice. To be sure, the power of the Whitley Councils to reach operative conclusions must be seen in the framework of the close relationship between Cabinet and Official Side, but agreements, once reached, tend to be implemented without delay. In a paper delivered to the Royal Institute of Public Administration during 1953, Mr. A. J. T. Day, then chairman of the National Staff Side of the Whitley Council, referring to this question declared: 84

IMPLEMENTATION OF AGREEMENTS

Thus in one way or another, the approval of the government for any agreement is assured in advance, and it can be promulgated as soon as reached. ... The immense importance of the decision to permit Whitley bodies to reach operative conclusions needs no emphasis. Without it their history would have been altogether different. They might, indeed, have had no history at al1.12

Another instance of uncertainty and delay in Council deliberations occurred in connection with the introduction of a year-round five-day week for civil servants. The matter was raised in the Council during the spring of 1951. Each side set up a committee to examine the problem. Almost a year passed before the Staff Side presented its brief to the whole Council. The Council then agreed that its chairman should prepare a short statement of the issue and address it to the Minister of Finance "asking if the Government is prepared to consider the principle of the year-round five-day week in the not too distant future."" At a later date, the Council arranged for a meeting between the Staff Side and the Minister of Finance; the meeting took place in May 1952, at which time a brief was left with the Minister for his consideration. It should be noted that up to this point the Official Side had avoided any kind of commitment, and that the role of the Joint Council seemed to be that of intermediary between the staff associations and the Government. In January 1953, the Minister of Finance advised the Council of the Government's intention to proceed with a limited application 12. Whitley Bulletin, July 1958; address by Mr. Day separately printed (London, 1953), p. 2. 13. C. W. Rump, "Recent Activities of the N.J.C. of the Public Service of Canada", Civ. Serv. Rev., XXV (March 1952), 26.

85

JOINT CONSULTATION IN PRACTICE

of the principle of the five-day week. The Staff Side was not satisfied with the extent of the concession and suggested further modifications. The Official Side, however, refused to agree to any changes; and the Staff Side, while accepting what was being offered, continued to press for a wider application of the principle. An illustration of how circuitous the road to implementation can be may be gleaned from an official report by the Secretary of the Joint Council. There was an agreement in the autumn of 1953 to recommend the extension of the five-day week to operating staffs. The recommendation was forwarded to the Minister of Finance, who acknowledged it and, in turn, advised the Council that the Government proposed "to ask the Civil Service Commission to make recommendations to Treasury Board for application of the five-day fortyhour week to the operating services in the same way as it does now for the five-day week as it applies to office staffs."" Another instance of lengthy deliberation and very slow implementation was in connection with the introduction of a new medical-surgical insurance plan. After nearly five years of joint consultation and detailed study by two committees of the Council, a formal recommendation was submitted to the Government in October 1957. In the words of the General Secretary of the Council, there followed "months of anxious anticipation of the Government's decision."15 Finally, the Speech from the Throne on January 15, 1959, indicated that the Government would request Parliament's "approval of its participation in a contributory plan 14.Civ. Serv. Rev., XXVII (March 1954), 52. 15.Civ. Sew. Rev. XXXII (March 1959), 64.

86

IMPLEMENTATION OF AGREEMENTS

... pursuant to recommendations of the National Joint Council of the Public Service." It was not, however, until the dying moments of the session that the item in the estimates for the Government's contribution to the plan was passed. In the discussion the Minister of Finance expressed the hope that the plan would come into effect on January 1, 1960—twenty-seven months after receiving a joint recommendation based on five years of deliberation. The tendency for delay as a result of the sometimes involved procedures of Council deliberations is a complaint which is common to Staff Sides in both the British and Canadian joint councils. These delays are to a real degree quite inevitable, particularly where major questions are under consideration. The Official Sides must be in close consultation with those who are politically responsible. Official views must then be reconciled with staff views. This entails a continuous reference back and forth before a common ground can be found. It would be wrong to conclude that only the Official Side contributes to the delays. Staff Side representatives, too, often lack sufficient discretion to make quick decisions. They must generally seek direction from their respective organizations and then attempt to hammer out a common policy amongst themselves. The process of delay, however, is more elaborate and drawn-out in Canada than it is in Britain. The lack of a clear-cut policy on reaching operative conclusions has already been dealt with as a factor contributing to postponement of action. A second factor, one that has already been noted in another connection by the Royal Commission on Administrative Classifications in the 87

JOINT CONSULTATION IN PRACTICE

Public Service, 1946 (Gordon Commission), is the dispersal of authority and responsibility with regard to civil service matters. Where the Whitley Councils recommend only to the appropriate Minister or to the Cabinet as a whole (depending on whether it is a departmental or the national council that is recommending), the National Joint Council is required to report to Cabinet, Treasury Board or Civil Service Commission. A report to any one of these bodies must usually be followed by consultation among them. Under the Civil Service Act, for example, the Civil Service Commission has assumed the responsibility of recommending on questions of compensation, organization, etc., but it has no real authority to decide and must wait for the decision of the Treasury Board. On the other hand, Treasury Board may be ready to deal with a Council recommendation in principle, but will wait for the Civil Service Commission to examine and work out the details. Both Treasury Board and Commission may in turn have to wait for Cabinet approval. It is not difficult to imagine the permutations and combinations of delay that may proceed from this kind of situation. The Scope of Joint Consultation We turn now to an examination of the scope of the Joint Council's functions. The constitution of the Whitley Council, which may serve as a basis of comparison, declares under Section 12 that "all matters which affect the conditions of service of the staff" come within its ambit. Section 13 follows with an enumeration of the kind of specific matters that might be included 88

THE SCOPE OF JOINT CONSULTATION

among the functions of the Council. It seems quite clear that the particular enumerations are inserted, if one may quote from a certain well-known document, "for greater Certainty, but not so as to restrict the Generality" of the previous section. The constitution of the Joint Council, on the other hand, tends to define the terms of reference in more specific language, but not without a degree of ambiguity. Most of the clauses outlining the scope of the Canadian Joint Council's duties are quite innocuous. They deal with such things as seeking means of increasing the participation and responsibility of the staff in determining the conditions of employment; improvement of methods, procedures and organization; and review of proposed legislation affecting civil service. The most important clause is the one under Section 6(ii) which states: The general principles governing conditions of employment in the public service of Canada including among other conditions recruitment, training, hours of work, promotion, discipline, tenure, regular and overtime remuneration, health, welfare and seniority.

A simple reading and construction of this clause would seem to indicate that discussion and recommendations with regard to salaries, even accepting the qualification that they be confined to "general principles", are legitimate areas of Council action. This has not been the case in practice. It might be useful to return, for a moment, to the British scene before looking more closely at the evolution of the "salary doctrine" in the Joint Council. Section 13(iii) of the Whitley Council constitution refers to "determination of the general principles governing 89

JOINT CONSULTATION IN PRACTICE

conditions of service, e.g., recruitment, hours, promotion, discipline, tenure, remuneration and superannuation." Here the language is very similar to that of Section 6(ii) of the Joint Council's constitution. But the right of Whitley Councils to deal with salary matters has never been seriously questioned. To be sure, the usual practice in the United Kingdom is for staff associations to by-pass the Whitley Councils on the issue of pay and to negotiate directly with the Treasury or particular department, as the case may be. This, however, is a matter of choice and is not due to any technical or constitutional restrictions in the Whitley machinery. There are good reasons why the associations prefer direct negotiations to joint consultation, but they need not concern us here. The point is that Whitley Councils are authorized to deal with salary questions and, indeed, have done so on many occasions. In Canada, by a strange twist of interpretation (this seems to be a national propensity), the discussion of "regular remuneration," i.e. salaries, is now generally considered to be excluded from the Council's terms of reference. Just how this interpretation arose has been most difficult to discover. It is possible, however, to trace the development of the current doctrine through particular cases. The Civil Service Review for September 1944 reported that the first major question of policy dealt with by the Council was that of basic salary rates in the postal service. The three postal unions were, at that time, making representations to the Government and the Civil Service Commission for salary increases. The Minister of Finance referred the question to the Council. The main problem seemed to be that of reconciling 90

THE SCOPE OF JOINT CONSULTATION

the increases, which were apparently warranted, with the Government's policy of wage controls. The Council, after an intensive review of the problem, recommended favourably and the adjustment of salaries was consequently authorized. The article in which this was reported, however, did not wish to give the impression that the Council had acted as a wage negotiating agency: As giving some insight into the action of the Council in regard to further matters, it should be explained that the National Joint Council did not make any recommendations in the form of dollars and cents; the Council recommended only in regard to principles. The Council did report that in its judgment basic increases in the Postal Service would not be inconsistent with the principles of wage control which now apply to industry, and further expressed the view that appropriate authority should recommend suitable increases for Postal employees. The Council stopped at that point. It did not undertake to suggest exactly what the new scale should be.16

The case and the comments furnished an interesting precedent. On the one hand, it seemed to establish that salary questions were within the competence of the Council. On the other, it indicated a rather uneasy preoccupation with the limiting words "general principles" and a tendency to give them a literal and somewhat unrealistic meaning. Once the Staff Side had conceded on this literal interpretation, it found itself in retreat. It was thus only a matter of time, aided by the relative weakness of the staff associations, for the viewpoint that salary questions were not within the Council's competence to become the prevailing one. 16.

Civ. Sere. Rev.,

XVII (September 1944), 334.

91

JOINT CONSULTATION IN PRACTICE

In December 1951, the Prime Minister announced in the House of Commons that a general increase was to be granted the civil service. The General Secretary of the Council, in his quarterly report, indicated that details of the proposed increase had been outlined at a special meeting of the Staff Side prior to the public announcement. He reported that representatives of Staff Side "were given an opportunity of discussing the principles governing the latest increase and expressed their appreciation to Messrs. Taylor and Bland, in maintaining this procedure with respect to so important an announcement."'7 It should be observed that the opportunity to discuss in principle had come after the decision of the Government had been made. It is difficult to conceive of this as consultation in the sense envisaged in the idea of a joint council. That the Staff Side was not pleased with this procedure was made evident in a report submitted by it at a subsequent meeting of the Council. This report referred to the fact that regular remuneration was clearly included in the Council's terms of reference in the same way as recruitment and training. It argued that since the Council had already successfully recommended with regard to overtime compensation, which was one phase of remuneration, it would seem that the time was "opportune for the N.J.C. to consider the other phase of remuneration termed as 'regular' remuneration."18 The report included a number of specific recommendations for setting up a special committee of the Council to deal with this problem. 17. Civ. Serv. Rev., XXV (March 1952), 24. 18. Civ. Serv. Rev., XXV (June 1952), 202.

92

THE SCOPE OF JOINT CONSULTATION

A few weeks later the Chairman of the Council presented the formal views of the Official Side in reply to the Staff Side's report. The statement began with an interesting shift of ground: "It should be clearly recognized that there can be no negotiation of salary or wage rates in or through the Council.'"9 It went on to quote at length from the Prime Minister's statement of February 1951, and added: The Council's competence is limited to discussing and making recommendations on the general principles governing remuneration. ... I think the Council should avoid injecting itself into discussions of wage and salary questions where existing machinery is working satisfactorily; that is, discussions in the Council should not overlap or undermine the function and responsibilities of the various staff associations.20

The argument seemed to be technically vague, but it would have carried some weight if it had indeed been agreed that the "existing machinery" was working satisfactorily. The staff associations were generally insistent that this was not so. One could hardly speak of meaningful consultation, let alone negotiation, in a procedure which entailed the periodic submission of briefs to the Government by the various staff associations, highly formal and courteous interviews with the Prime Minister or the Minister of Finance, and then the long wait for the Government's unilateral pleasure. The Staff Side apparently did not accept the Chairman's statement without reservation, for the Council finally agreed to invite the Civil Service Commission to prepare a statement outlining the principles of wage 19. Ibid., 203. 20. Ibid. For the Prime Minister's statement see above, p. 11.

93

JOINT CONSULTATION IN PRACTICE

and salary structure in the civil service. The Staff Side hoped in this way to make a first step towards getting the salary issue onto the Council's agenda. A statement of "Principles Governing Wage and Salary Structure in the Civil Service" was prepared by the Civil Service Commission and circulated among the members of the Joint Council towards the end of 1952. It was essentially a summary of the relevant sections of the Civil Service Act, 1918, subsequent regulations under the Act, and excerpts from the "Report of Transmission" by the firm of Arthur Young and Company, which had devised the classification system for the civil service in 1919. As a general statement of principle the report quoted from an announcement made by the Rt. Hon. Louis St. Laurent in December 1950: The government's policy on salaries in the public service has long been based on two main principles. First, that they should be sufficient to attract to, and retain in, the civil service persons of the right type and necessary qualifications; and second, that having regard to all relevant factors, salaries for each class of work should be generally in line with those paid for comparable work by good private employers. The other relevant factors include such things as leave privileges, superannuation benefits, differences in regularity and continuity of employment and the greater measure of stability in civil service salaries than has been usual in private employment.0

The Staff Side felt that the Commission's statement was too general and insufficient as an explanation of the precise policy used to determine salary scales. They asked that a committee of the Council be set up to 21. Press release from the Office of the Prime Minister, December 14, 1950, as reported in the Civ. Sere. Rev., XXV (March 1951), 111.

94

THE SCOPE OF JOINT CONSULTATION

examine how the principles and procedures were being implemented. There was some hesitation at this point since it was feared that such a committee might overstep the limits imposed by the Council's constitution. However, two committees were established in May 1953, one to deal with long-service pay and the other with classification and salary structure. Nearly three years passed before the committee on classification and salary structure completed its work, and its report was referred to both sides of the Council. It seems that after consideration by both sides the report was forwarded to the Civil Service Commission some time in 1957. In June of that year the Council set up another committee to study the principles involved in salary determination. The committee reported in November 1958, the report was referred to both sides for consideration, and there it still rests. Correspondence with representatives of the Staff Side indicates that this vagueness on the question of salaries is regarded by them as the greatest weakness in the operations of the Council. To be sure, there is also a lack of precision in the views of many of the staff representatives. They do not always recognize a distinction between the kind of collective bargaining that is clearly ruled out by the Council's constitution and the idea of advance consultation on any matter affecting the conditions of employment, including "regular remuneration", which seems to be consistent with the Council's functions. Nevertheless, the experience of the Council in attempting to clarify its competence to deal with the general principles governing "regular and overtime remuneration" is hardly calculated to 95

JOINT CONSULTATION IN PRACTICE

support the assertion that the Council provides a reasonable alternative to collective negotiation. Failure to Reach Agreement It has already been noted that the constitution of the Council requires the agreement of both sides, as such, before any decision or recommendation can be communicated to the proper authority. This means that if the sides fail to reach a common ground, they cannot, in the last resort, resolve their differences within the machinery of the Council. One side cannot outvote the other. Thus, in effect, the will of the Government can ultimately prevail and be put into force by legislative, executive, or administrative action. Consultation and persuasion may carry much weight, but, in the end, the Government can have its way. The Whitley machinery in Britain is subject to the same kind of formal limitation on its own ability to resolve deadlocks between the two sides. There is, however, an important restriction on the implied unilateral power of the Government in such an eventuality. With few exceptions, unresolved issues may be taken to arbitration on the initiative of either side. This procedure flows from the provisions of the Civil Service National Whitley Council Arbitration Agreement of 1925. The wording of the Agreement does not specify the Whitley Councils as coming within its ambit; it merely refers to "recognized associations". However, "it is well-established in practice that Staff Sides, both national and departmental, may also go to arbitration on matters within their purview and within the terms of the

96

FAILURE TO REACH AGREEMENT

Agreement."22 The overwhelming majority of arbitration cases, in practice, involve particular associations and Government departments or the Treasury. This is because direct negotiations provide a real alternative to Whitley consultation and are preferred by both sides in dealing with salary matters. It should be observed that, although the initiative for arbitration generally comes from the Staff Side, there have been some instances when the Official Side has taken the initiative. Arbitrable matters include questions of pay and allowances, weekly hours of work, annual leave, and so on. Excluded from the scope of arbitration are numbers and complements of staff and other such matters which might be termed "management prerogatives."23 The major civil service staff associations in Canada, viewing the British experience, tend to favour the introduction of some form of arbitration as a mechanism for resolving important deadlocks both within and without the Council. As the associations do not envisage the strike as an instrument of bargaining policy, they see recourse to arbitration as a pressure which would lead to more effective bilateral consultation. There is, of course, a strong legal argument against a government allowing itself to be bound by the award of an arbitration tribunal. It suggests an encroachment on the sovereignty of Parliament which could not be legally enforced. This problem was solved by the British in a way which is characteristic of their constitutional development. The Treasury Circular which announced the arbitration agreement stated that "sub22. H.M. Treasury, Staff Relations, p. 18. 23. The process of arbitration raises a number of problems which are examined in Chap. VII, pp. 190ff.

97

JOINT CONSULTATION IN PRACTICE

ject to the overriding authority of Parliament the Government will give effect to the awards of the Court."24 An authoritative interpretation of this phrase appears in a booklet already referred to: The qualification is inserted to preserve the constitutional supremacy of Parliament and the possibility of a Government defeat there; the pledge means that the Government will not itself propose to Parliament the rejection of an award once made.25

In addition to the qualification of parliamentary supremacy, the Government also reserves for itself the right to refuse to submit to arbitration in particular cases on grounds of policy arising out of its responsibility to Parliament for the administration of the public service. In practice, only four cases have occurred in which the Government of the United Kingdom rejected arbitration on grounds of major policy. Thus it appears that the legalistic obstacles to arbitration of issues that arise in the Council can be circumvented so long as the Government is prepared to accept it in practice. The availability of arbitration might also have an accelerating effect on the Council's deliberations and the implementation of its recommendations. Secrecy

Deliberations of the National Joint Council are held in private and there have been periodic complaints about the degree of secrecy that surrounds them. The staff associations acknowledge the necessity for secrecy at certain stages of consultation but assert the right to 24. Quoted in Staff Relations, p. 22. 25. Ibid.

98

SECRECY

refer important issues to their executive bodies or general membership before final agreements are concluded. Normally, this raises no problems. The process of developing agreement is a lengthy one and there is ample opportunity for deliberation within the associations. But the degree of secrecy in any given case tends to be determined by the Official Side, and this may sometimes be seen as disadvantageous to the Staff Side, if not to the Government itself. An interesting case that illustrates this point concerned a project to set up a group insurance scheme for the public service. The Council had established a committee to deal with superannuation in mid-1953. In November of that year the Chairman of the Council informed the committee that the Minister of Finance wished to discuss a plan for group insurance. The Government insisted, however, on the strictest secrecy. There was to be no consultation with any individual or group outside of the Council. The Staff Side apparently submitted to this condition. The Superannuation Committee was under pressure to reach a speedy conclusion, and its report was sent to the Council in the middle of December. A month later the report was agreed to by the Council as a whole; and it was forwarded, as a joint recommendation, to the Minister of Finance. The letter of transmission to the Minister included a paragraph which pointed out that the confidential nature of the matter had precluded communication between members of the Staff Side and their executives. On April 30, the chairman of the Staff Side sent a confidential memorandum to his colleagues on the Council. It contained advance information on the pro99

JOINT CONSULTATION IN PRACTICE

posed legislation and reiterated the theme of secrecy: "It is evident that we will not be in a position to discuss any details with our respective organizations or otherwise until the final proposal is tabled in Parliament."26 At this stage, of course, the need for secrecy was unquestioned, since the contents of a bill cannot be made public before first reading in Parliament. The bill to amend the Superannuation Act was given first reading on May 25 and thereupon became public. The disapproval expressed by a large segment of the civil service was rather unexpected. Many rankand-file members of the staff associations took issue with the compulsory aspects of the projected group insurance plan and criticized their leaders' acceptance of it. They were particularly critical of the imposed conditions of secrecy which had precluded their participation in any appraisal of the programme before it had reached the legislative stage. The Opposition in the House quickly sensed the dissatisfaction of civil servants with the lack of wider consultation and moved to exploit this issue in the debate on the bill. The attack of the Opposition prompted the Minister of Finance, during the debate on second reading, to declare, I would not wish to imply that every member of the national joint council agrees with every detail of the bill, but I can inform the house that the national joint council has endorsed the broad outlines of the plan as a whole.27

The bill was referred to the Standing Committee on Banking and Commerce after second reading. There, 26. "The New Insurance Plan for the Service", Civ. Sem. Rev., XXVII, (June 1954), 117. 27. Can. H. of C. Debates, May 26, 1954, p. 5103.

100

SECRECY

again, the Opposition members sharply attacked the contents of the bill and the manner in which it was handled. This time their arguments were reinforced by written briefs and oral evidence presented by representatives of staff associations. The President of the Civil Service Association of Ottawa criticized what he considered to be unusual procedures and excessive secrecy and argued that this was not in keeping with the Council's function as an employer-employee body. Particularly pointed was the following remark: I have been greatly disturbed by the manner in which the government has apparently used the prestige of the N.J.C. to obtain support for the application of a compulsory tax on civil servants without giving them an opportunity to ex. press their views until this late stage in the legislative process.28 The bill was reported out of committee without major change and, after another lively debate in Committee of the Whole, was read a third time. This, however, was not the end of it. When the bill came to the Senate Banking and Commerce Committee, it was amended so as to do away with its compulsory features. The Government saw this as a good opportunity to retreat gracefully and notified the Committee that its amendment would be acceptable if certain other conditions were met. This was done and the bill was finally passed through both Houses in its amended form. In addition to the obvious moral that may be drawn from this case, there is one which may be somewhat more elusive. It would seem that the attitudes of the re28. Canada, House of Commons, Standing Committee on Banking and Commerce, Minutes of Proceedings and Evidence, June 3. 1954, p. 1712.

101

JOINT CONSULTATION IN PRACTICE

presentatives and leaders of the staff associations were equivocal. The issue of a compulsory insurance plan was certainly one that should have enjoyed wider deliberation among those to be affected. Staff Side representatives should have realized this in the first place, and they should have refused to allow themselves to be made parties to the plan without the approval of their associations. But having committed the Staff Side to the plan through their agreement within the Council, it would seem that they were bound to support its general terms rather than seek an out for themselves by protesting the degree of secrecy. The staff-side members either enjoyed sufficient discretionary authority to endorse the plan in the name of their constituents, in which case their behaviour should have been consistent with their commitment, or they lacked this authority and so should not have made the commitment in the first place. Departmental Joint Councils Probably the least successful aspect of the Canadian experience with joint consultation in the public service has been the failure to establish effective departmental joint councils. Most students of Whitleyism in the United Kingdom agree that the departmental Whitley Councils provide a more useful and effective medium for employer-employee relations than the National Council. These departmental bodies bear no hierarchic relationship to the National Council and remain completely independent with respect to matters of a purely departmental nature. The only restriction placed upon them is that their constitutions must be approved by 102

DEPARTMENTAL JOINT COUNCILS

the National Whitley Council. There is a model departmental constitution which parallels the national constitution in most respects except that the scope is limited to matters within a department. Where the National Council tends to deal with general, and at times, somewhat abstract problems, the departmental councils provide a mechanism for dealing with the many concrete details of day-to-day departmental relationships. These bodies have been especially effective in providing staff members with a departmental perspective, and in setting up manageable grievances and appeals procedures. A useful practice that has grown up is the regular inclusion of the Departmental Finance and Establishments Officers on the Official Side of the departmental council. The constitution of the Canadian Council clearly provides for the creation of departmental councils, but there has been no positive experience in this area. A first attempt to set up such a council was made in 1948 in the Department of Mines and Resources. This was a promising beginning. The Department even went so far as to set up regional joint councils for its branches in the field. The scheme was abandoned, however, when the Department itself was split up and reorganized. Several experiments with departmental councils are now either under way or are being planned, but there is insufficient experience and information in this area to warrant critical evaluation. Correspondence with staff-side representatives indicates that they strongly favour the establishment of departmental councils. They are particularly concerned about the failure of the national body to devise machin103

JOINT CONSULTATION IN PRACTICE

ery for resolving local grievances, and they feel that this might be more easily done on the departmental level. Why, then, has this form of joint consultation not been further developed? Several inter-related reasons may be suggested. It may be stated as a reasonable hypothesis that, if the staff associations were sufficiently strong and united in their desire to achieve departmental councils, it would only be a matter of time before they were realized. The allegation by some staff representatives that heads of departments are reluctant to share their administrative prerogatives with regard to personnel, which joint consultation implies, would quickly lose its validity in the face of sustained pressure from wellorganized associations. It is generally recognized that, when confronted with strong employee organization, personnel managers prefer institutionalized procedures to the difficulties and uncertainties of continuous bargaining. In 1931, for example, the government was willing to allow the formation of a joint council in the Post Office Department on an experimental basis in response to the demands of civil servants that P.C. 970 of May 7, 1930, be implemented. This experiment failed, however, because of the bitter jurisdictional disputes that immediately developed among the several associations of postal employees. It would seem that the weakness and redundancy of staff associations continues to be a major obstacle to effective consultation in departmental joint councils. Another circumstance which seems to inhibit the development of departmental joint councils can only be noted here. It is the highly centralized pattern of personnel administration which is imposed by the 104

THE LINE BETWEEN THE TWO SIDES

Civil Service Act and is sustained by a tradition which narrowly limits the scope of ministerial discretion. This pattern probably has historical roots in the movement to eliminate patronage and favouritism from the civil service. The question is whether it has not gone too far in producing an unnecessary rigidity in local personnel policies. There is so little of a substantial nature that can be determined on the departmental level that the incentive to form departmental councils must be very weak. The Line between the Two Sides A final problem which may only be touched upon is the absence of a clear division between the Official and Staff Sides in the Council. The representatives of both sides are employees of the same government. Some of the staff associations boast among their membership civil servants who have attained high administrative rank. The constitution of the Council does not draw a line between the sides in terms of rank or administrative function, nor does it limit the scope of Council deliberations to matters affecting that part of the civil service which falls below a given classification, grade or salary level. The Whitley Council constitution is also silent on this point and its Staff Side includes representatives from the higher administrative levels (e.g. Association of First Division Civil Servants). However, an understanding has developed in the United Kingdom that Whitley bodies would "not discuss the pay and grading of the most senior posts."29 The division between the 29. H.M. Treasury, Staff Relations, pp. 9-10.

105

JOINT CONSULTATION IN PRACTICE

highest posts and all the others tends to be expressed in terms of salary level, and this would seem to be, at the present time, above £2,000 per annum. This distinction between the management and employee sides of the service in Britain is reinforced by the provision of the Civil Service Arbitration Agreement that "claims in respect of grades carrying flat rate salaries above £1,450 a year . . . will not be referred to the Tribunal without the consent of both parties concerned in the claim."30 Many senior civil servants in Canada who are concerned with problems of staff relations are of the opinion that it would be useful to establish such a division between the employees and the management group. This is not yet a pressing problem but may well become one as new procedures evolve and are reflected in the operation of the Joint Council. Although this chapter has emphasized some of the difficulties which have arisen in the course of joint consultation, the Council's many accomplishments should not be ignored. The Council has improved with age. Writing about the Canadian civil service in 1947, Professor Taylor Cole was rather pessimistic about its prospects.3' The Council was in the doldrums at that time. Its first chairman had resigned in August 1946, and an acting chairman was not appointed for nearly a year. Regular meetings were not called during this 30. H.M. Treasury, Staff Relations, Appendix VI, p. 34. The figure £1,450 was set in 1951 and at that time corresponded to the maximum of the Principal's scale. Since the Principal's scale now rises above £2,000, there has been agreement, in practice, to use the maximum of the scale as the arbitrable limit. A formal amendment of the Arbitration Agreement is pending. 31. Taylor Cole, The Canadian Bureaucracy (Durham, N.C.: Duke University Press, 1949), pp. 125ff.

106

THE LINE BETWEEN THE TWO SIDES

interval and important decisions affecting public sentice employment were made by various governmental authorities without any effort at joint consultation. The Council was revived, however, with the appointment of its new chairman in May 1947, and has achieved a good deal since then. The Government has put into effect major policies which were the products of intensive consultation and joint recommendation by the Council in such fields as: the incorporation of the war-time cost of living bonus into the basic salary scales; regulations governing the payment for overtime work by operating staffs in the form of cash; establishment of the five-day week on a year-round basis for the majority of civil servants; the introduction of a group hospital-medical plan; and now a medical-surgical insurance plan. While recognizing the achievements of the Council, however, the staff associations are not prepared to accept the Prime Minister's assertion, in February 1951, that the Council provides appropriate machinery for negotiation. The established practice which excludes wage and salary matters from the Council's terms of reference has become a major source of dissatisfaction to all staff associations. This would not be an important issue if more direct means of negotiation, or even consultation, on these questions were available. But, in the absence of such an alternative, the pressure to extend the Council's functions, or to establish separate collective bargaining facilities has continued to grow. Another aspect of the Council's functioning which worries the staff associations is the absence of machinery for 107

JOINT CONSULTATION IN PRACTICE

resolving deadlocks between the two sides. This means that, in the last resort, the Official Side can always have its way. The associations, therefore, tend to favour the introduction of arbitration procedures similar to those operating in the United Kingdom. It has been argued by some that the extension of formal institutional procedures in government staff relations would tend to limit the freedom of action of the employee associations. Those who argue this way point to the traditional pressure-group tactics which have been successfully employed by civil servants in the past. It is evident that, with an enlarged scope of formal joint consultation, there must be a corresponding limitation on such informal devices as petitions to Parliament or public agitation. Even though, in theory, the Council is not supposed to supersede other forms of representation, it is clear that, in practice, Council affairs must be kept within the family. The mutual confidence necessary for joint consultation would soon break down if either side publicly aired issues for which the fullest opportunity of discussion and resolution existed within the Council. It is true, then, that further institutionalization of staff relations must bring about important changes in the tactics of staff associations. This, however, does not seem to worry the present leaders of organized civil servants. Their experience with formal consultation over the past twelve years has been a happy one on the whole, despite its limitations. There is no doubt that the staff has taken a greater part in determining some of its important conditions of employment. This marks a tremendous advance over the situation in 1944. 108

THE LINE BETWEEN THE TWO SIDES

A more formal review of the work of the Council now appears to be in the offing. It was presaged in a special report on personnel administration prepared by the Civil Service Commission and tabled in Parliament on January 16, 1959. This report will receive more detailed attention in later chapters, but its reference to the Council should be noted here. It clearly calls into question the kind of official viewpoint which is quoted at the beginning of this chapter, for it recognizes both the shortcomings of the Council as it is now constituted and its inadequacy as a framework for the joint consideration of salary matters. Agreeing with the widely held view that the Council could play a more effective part, the report suggests that "the time has come for a re-examination of the terms of reference and procedures of the Council with the object of strengthening its position and prestige and making it a more useful and effective body for joint consultation."32 But the report does not stop at this point. It also asserts the need for special machinery, independent of the Council, which could provide the staff with the opportunity for systematic discussion of salary questions with the government. The staff associations, too, hold the view that the Council is incapable of dealing satisfactorily with the problems of salaries and working conditions. This is why there has been, for some years now, a widespread agitation for the introduction of collective bargaining.

32. Civil Service Commission, Personnel Administration in the Public Service (Ottawa 1959), Appendix B, p. 132.

109

Chapter V FROM CONSULTATION TO NEGOTIATION The term collective bargaining has been gaining wide currency in the context of civil service staff relations in Canada. It seems, however, to mean different things to different people, and its use often clouds the real issues. Thus, if one wishes to resist any basic changes in existing procedures for staff representation, the term may be given its strictest and, from the perspective of the public service, most radical construction —collective bargaining as it is practised in private labour relations. Such a definition implies the certification of associations; the signing of periodic written agreements; conciliation machinery; and, in the last resort, strike action. If, however, one recognizes the shortcomings in present civil service experience, collective bargaining may imply nothing more than a positive adjustment of the machinery of staff relations in response to growing pressures for more useful negotiations. Constitutional government cannot afford to assume a rigid position, hog-tied by precise definition and institutional inertia. It must seek accommodation with the many interests that exert their pressures within the community, and it must do so in a way which is consistent with the general climate of opinion and expectation. This chapter will consider the development of the staff's attitude to negotiation and the Government's response. 111

FROM CONSULTATION TO NEGOTIATION

We have seen that the staff organizations, until 1944, could make only direct representations to the Government. These took the form of interviews with ministers, presentation of briefs, publicity in the press, and enlisting the support of private members of Parliament. Although these methods sometimes produced results, the staff felt that they had no share in the final decisions. Indeed, the Government's unilateral policy was usually announced by press release without prior notice to civil servants. The creation of the National Joint Council of the Public Service of Canada in 1944 was regarded with optimism by both Government and civil servants. It seemed to provide the most desirable kind of institutional framework for reciprocal consultation between a state and its employees; but the staff's optimism was short-lived. The machinery of the Council proved to be unwieldy; it made for postponement and delay. Council recommendations were not acted on immediately. Its terms of reference were construed to exclude discussion of salaries. There appeared to be no effort to speed its deliberations or to resolve difficult disagreements between the Official and Staff Sides. The dissatisfaction of the staff associations with this kind of relationship was intensified when they compared it with private labour relations since the war. In view of these facts, and taking into account the dynamism of the Canadian economy and the internal pressures on the leadership of the staff organizations, it was inevitable that organized civil servants should begin to seek new ways of dealing with the Government. It is interesting to trace the trend and tone of staff representations on this issue. The hesitant and modest suggestions of 1950 have become, in the absence of an 112

FROM CONSULTATION TO NEGOTIATION

encouraging response from the Government, the strident demands of 1960. At the Nineteenth Convention of the Civil Service Federation of Canada in January 1950, the Victoria and District Council introduced a resolution calling for efforts to secure the right to bargain for the Federation and its affiliates. The Resolutions Committee, however, did not recommend it to the convention since "the National Joint Council, being an official agency, now provides the machinery for dealing with such matters."' This was also the official viewpoint expressed by the Rt. Hon. Mr. St. Laurent in February 1951, in answer to a question in the House of Commons.2 But the comments on the Prime Minister's statement in a subsequent issue of the Federation's journal reveal that the association was moving away from the position it had taken in 1950: It is the considered opinion of the writer that much greater use could and should be made of the National Joint Council in this respect and that if necessary the Constitution of the Council should be amended so as to allow freedom of negotiation between the Staff and Official Sides with respect to salaries in the public services

While the official tone of the Civil Service Federation remained moderate, spokesmen for some of its affiliates began to look beyond the framework of the National Joint Council. The President of the Canadian Taxation Division Staff Association raised the question of bargaining rights in his report to the Association's 1. Reported in the Civil Service Review, XXIII (March 1950), 45. 2. See above, p. 75. 3. T. R. Montgomery, "Parliament and You," Civ. Serv. Rev., XXIV (June 1951), 215.

113

FROM CONSULTATION TO NEGOTIATION

convention in October 1951. He indicated his reluctance to apply the term bargaining to civil service staff relations because of its trade-union connotation, but nevertheless urged that more direct negotiating procedures be introduced. He suggested that the reorganization of the Civil Service Commission or the development of departmental joint councils might provide possible alternatives. A much more militant attitude appeared at the end of 1952 in an article by an official of the Department of Veterans' Affairs Employees' National Association. The editors of the Civil Service Review were careful to note that the views expressed in the article were personal although the writer was at that time the secretary of the Research Committee of the Federation which was studying the problem of negotiation. (He later became First Vice-President of the Federation.) The article was a comparative study of collective bargaining in the public service. It described the unrestricted tradeunion relationship between civil servants and the Government of the Province of Saskatchewan under the province's Trade Union Act, 1944. The author discussed in some detail the experience with negotiations in the British civil service both within and without the Whitley Council machinery. Then, turning to the Canadian federal civil service, he asserted: From the employees' point of view the present system smacks too much of the humble servant coming hat in hand to beg for scraps from the great man's table.4

4. W. Hewitt-White, "Collective Bargaining in the Public Service—Comparative Study", Civ. Serv. Rev., XXV (December 1952), 453.

114

FROM CONSULTATION TO NEGOTIATION

The article did not attempt to offer concrete suggestions that could be adapted to the Canadian experience but ended on this note: It seems to this writer that if the Canadian Federal Government were to extend to its own employees the right of negotiation with their employer on such vital matters, at least, as pay and working conditions, and were to provide some machinery for arbitration, as is provided in the United Kingdom, the associations representing the Canadian Government employees would be perfectly willing to write into any agreement an undertaking not to employ the strike as a weapon in collective bargaining.5 The Civil Service Federation's Research Committee on Collective Bargaining reported in November 1952. The report summarized what it considered to be the inadequacies of the existing machinery. It noted the increasing pressure from the affiliated associations for the reform of that machinery and it made specific proposals for its accomplishment. The first of its recommendations was "that the term 'collective bargaining' not be used in approaching the government on this matter but the terms 'consultation', 'participation' or *negotiation' be used instead."6 The report's main recommendation was that a committee be set up, comprising representatives of the Civil Service Commission, Treasury board, and the Civil Service Federation. The committee's purpose should be to provide for consultation and negotiation on matters regarded as beyond the competence of the National Joint Council —particularly questions of salaries. There was no spe5. Ibid.

6. "Collective Bargaining in the Federal Civil Service," Civ. Sew. Rev., XXVI (March 1953), 31.

115

FROM CONSULTATION TO NEGOTIATION

cific request for arbitration machinery, merely mention of the possibility that it might become necessary. The Research Committee recognized that its recommendations were vague on details, but felt that they could provide a useful basis for further discussion with Government representatives. A delegation of the Civil Service Federation met with a group of Cabinet Ministers headed by the Prime Minister a few months later. The question of collective bargaining was formally raised at this interview. When the Minister of Finance suggested that the Joint Council made this unnecessary, the president of the Federation pointed to the restriction on salary discussions in the Council and countered with the suggestion that its constitution be amended to include consideration of salaries. The Prime Minister objected to this on the grounds that the Government was ultimately responsible to Parliament in money matters.? The Civil Service Association of Ottawa, which in 1953 was still affiliated with the Civil Service Federation, raised the question of bargaining procedures in the June issue of its journal.8 The article was moderate 7. The following interesting exchange took place that afternoon in the House of Commons: On the orders of the day: Mr. Stanley Knowles (Winnipeg North Centre): Mr. Speaker, may I address a question to the Prime Minister. Is the Prime Minister in a position to make any statement as to the outcome of the conference he was to have had at noon today with representatives of the civil service regarding rates of pay and hours of work? Right Hon. L. S. St. Laurent (Prime Minister): Well, Mr. Speaker, I can report to the House that there were compliments exchanged on both sides. Some hon. Members: Oh, oh. Can. H. of C. Debates, February 13, 1953, 1906. 8. J. D. Love, "An Appraisal of Collective Bargaining in the Public Service," Civ .Sera. News, June 1953, p. 24.

116

FROM CONSULTATION TO NEGOTIATION

in its criticism of the machinery of staff relations and called for the introduction of a modified form of collective bargaining which did not include the right to strike. The author recognized that the multiplicity of organizations representing civil servants would present a serious obstacle to effective negotiation but except for voicing the desirability of amalgamating the existing organizations, made no concrete proposals for alleviating this problem. Some of the specific recommendations, however, deserve to be noted. The first suggestion was that a specified time be set aside each year for negotiations between a small group of staff representatives and an equivalent number of high Government officials. Secondly, if the negotiating parties could reach agreement, a written document to that effect, signed by the negotiators for each side, should be forwarded to the Cabinet for ratification and action. Thirdly, in the absence of agreement, some kind of mediation or conciliation board might be appointed to assist in the negotiations. If this failed, the associations might submit an independent report to the Cabinet. Finally, whatever the Government's decision, it should be given within a month of submission, and the Government should be prepared to meet with the staff representatives to clarify its position if they deemed it necessary. It is noteworthy that the article did not recommend any machinery for resolving stubborn disagreements, so that ultimately the Government's will would still prevail. The Twentieth Convention of the Civil Service Federation, meeting in June 103, passed a resolution on bargaining rights which radically altered the stand it had taken in 1950. The resolution is given here in full: 117

FROM CONSULTATION TO NEGOTIATION

Whereas much time and effort has been spent by Civil Service Organizations and particularly by the Civil Service Federation in preparing and presenting employees' requests to the Government in respect to remuneration, conditions of service and other like subjects; And Whereas there is no adequate machinery within the Federal Civil Service whereby the employees can present their case in the normal and logical manner envisaged by the Government for the conduct of business between employers and their employees as outlined in Federal Labour Legislation; And Whereas there does not appear to be any equitable reason why Federal Government employees should not be afforded similar advantages to other workers; And Whereas it is recognized that the exigencies of the public service render undesirable the use of the strike weapon in Collective Bargaining; And Whereas the Civil Service Federation goes on record as being opposed to the use of the strike as a means of gaining its objective; Therefore Be It Resolved that strong and specific representations be made to the Government of Canada to legislate for the purpose of providing a means whereby government employees may bargain with the Crown, under provisions similar to those laid down in the Industrial Relations and Disputes Investigation Act, on such matters as rates of remuneration and working conditions.9

The resolution did not clarify what it meant by "provisions similar to those laid down in the Industrial Relations and Disputes Investigation Act." However, a spokesman for the D.V.A. Employees' Association, which had sponsored the resolution, emphasized that it did not imply a right to strike: We in the D.V.A. Employees' Association are fully in accord with the right to bargain. We do not feel—and I want to 9. Reported in Civ. Sew. Rev., XXVI (September 1953), 285. (My italics.)

118

FROM CONSULTATION TO NEGOTIATION

stress this—that the Civil Service should consider for one minute that they should have the right to strike. I hope that all of us within this room will give that very serious consideration.'0 An amendment calling for the repeal of Section 55 of the Industrial Relations and Disputes Investigation Act, which excludes federal civil servants from its application, was defeated on the floor. The issue of collective bargaining remained quiescent between June 1953 and the late summer of 1955. Several reasons for the lull may be inferred. In the postconvention period and during most of 1954, the major associations were preoccupied with the jurisdictional dispute between the Civil Service Federation and the Civil Service Association of Ottawa." This diverted the energy and attention of their leaders from problems of negotiation with the Government to matters of internal organization. The second cause may have been a readiness on the part of the associations to give the Joint Council's Committee on Classification and Salary Structure an opportunity to deliberate. The Committee had been established in May 1953, and the Staff Side had hoped that its findings would result in broadening the Council's terms of reference to include consultation on salaries. A third possible reason was the announcement and almost immediate implementation of a general salary increase for the civil service in November 1953. In late 1954, the Civil Service Association of Ottawa set up a Committee on Negotiating Procedures. Its report and recommendations were published the 10. Ibid., p. 286. 11. See above, pp. 31ff.

119

FROM CONSULTATION TO NEGOTIATION

following summer. The report argued that "the present methods of employee participation do not provide for sufficient recognition and self-expression.'"2 It criticized the absence of machinery to deal with staff claims as a whole. The Council, which provided the only regular opportunity for consultation, dealt only with particular issues singly: Although some system of priority is undoubtedly worked out, at no time do staff side members and official side members consider the total requests of staff associations, which if settled could presumably apply for a period of time. ... Under the present system neither side knows where the other stands on issues as a whole.13

The report continued with a systematic review of the shortcomings in the existing procedures of joint consultation and direct representation. The Committee's recommendations were prefaced by a statement of responsible moderation: Members of civil service organizations are keenly aware that the employer-employee relationship existing in government is not strictly comparable to that existing in private industry. It has, however, become evident to many in this association and to others that large numbers of civil servants favour a negotiating arrangement intermediate to full collective bargaining and the present methods of dealing with staff working condi tions.14

The specific recommendations were, to a large extent, an elaboration of the ideas expressed in the article of June 1953 which was referred to above. They called for a joint negotiating committee comprising repre12. Reported in Civ. Serv. News, June 1955, p. 7. 13. Ibid., p. 15. 14. Civ. Serv. News (Summer Issue 1955), p. 3.

120

FROM CONSULTATION TO NEGOTIATION

sentatives of Government and staff; a fixed period each year for the submission and consideration of staff requests; a full-scale discussion of the issues and a reasoned defence by both sides of the positions taken; provision for a written document setting forth the areas of agreement. The major innovation proposed in the report was that where agreement could not be reached by negotiation the matter should be referred to a neutral board whose recommendations would be accepted as binding on both sides. The Committee's report was endorsed by the Executive of the Civil Service Association of Ottawa and was adopted as formal policy at the association's annual meeting in November 1955. The resolution stated in part that "this Association fully supports the study approved by its Council recommending the adoption of a negotiating procedure providing for resort to arbitration where necessary."15 It also requested that the Government establish a Royal Commission "to inquire into the problems of employer-employee relations in the Federal Civil Service." Although the idea of compulsory arbitration had been receiving the attention of staff representatives for some time, this was the first formal resolution in its favour by a major staff organizat ion. '6 In October 1955, the Postal Workers' Brotherhood of Canada raised the question of arbitration in connection with a specific request for a salary adjustment. 15. Civ. Serv. News, January 1956, p. 9. 16. The National Unemployment Insurance Commission Association, an affiliate of the Civil Service Federation, passed a similar resolution at its convention in October 1955. See the Civ. Sere. Rev. (December 1955), p. 436.

121

FROM CONSULTATION TO NEGOTIATION

The Prime Minister rejected the idea of setting up a board to arbitrate the matter: Your membership seems to misunderstand the role of "regular boards of conciliation" and their applicability to the public service. Such boards do not arbitrate any such issues. Secondly, the law providing for them is very clear in stating Parliament's intention that it shall not apply to the Civil Service.17

The essence of the Prime Minister's argument in his letter to the Brotherhood was also contained in his reply to a question in the House of Commons. Mr. Diefenbaker, then a member of the Opposition, asked whether the Government had given consideration to the setting up of a board of arbitration or commission to hear the representatives of the postal workers. The reply was: No; the Prime Minister informed the brotherhood that the Civil Service Act did not provide for arbitration and the law relating to conciliation boards in industrial disputes is clear in stating parliament's intention that it should not apply to the civil service. It was pointed out that the civil service commission is an independent body, established by parliament and not subject to any direction by the government, which has the duty of investigating questions of the kind referred to by the brotherhood, hearing the views of associations and making recommendations upon them. The Prime Minister expressed his view that this full-time tribunal established by parliament and assisted by a large and expert staff, is far better able to give proper consideration to matters of this kind than would some ad hoc conciliation board as proposed by the brotherhood.18 17. Letter from the Office of the Prime Minister, dated November 2, 1955, to H. A. Clarke. Esq., President, Postal Workers' Brotherhood of Canada. 18. Can. H. of C. Debates, February 2, 1956, p. 829.

122

FROM CONSULTATION TO NEGOTIATION

The Government's categorical stand on the question of negotiating procedures did not, however, discourage the staff associations. Indeed, as staff pressures for reform continued to build up, it became apparent that the Government was beginning to reconsider its position. An exchange of correspondence between the Prime Minister and the Association of Canadian Postal Employees which was tabled in the House on April 11, 1956, indicated a new, albeit very slight, flexibility in official thinking. The Prime Minister's letter to the Association included the following paragraph: This subject [collective bargaining] is a rather fundamental one and I will not endeavour at this time to outline the position of the government upon it nor to comment on the various statements made in your letter on related subjects. This detailed exposition of your views, however, will be of use to the government in its consideration of this subject.19

The implication that the Government was giving consideration to the problem represented a softening of the attitude it had expressed in its letter to the postal brotherhood some months earlier. The campaign for collective bargaining attained a new level of militancy at the Twenty-first Convention of the Civil Service Federation, which took place in Ottawa during the second week of July 1956. It is remarkable that the mood of the convention was both sensed and stimulated by the speech of an outsider. Mr. A. J. Boudreau, a Civil Service Commissioner, in his guest address to the opening session spoke very frankly of civil service problems as he saw them. He discussed the difficulties in staff relations due to the lack of "a 19. Quoted in

Civ. Serv. Rev., XXIX (June 1956), 135.

123

FROM CONSULTATION TO NEGOTIATION

strong, unified, central personnel agency"; he noted the shortcomings of the National Joint Council as a negotiating body; and he raised the question of bargaining and arbitration: Again I do not think that this is the time or place to suggest any definite negotiating arrangements which could and certainly will have to be worked out in the very near future, but I should like to say that the Civil Service Commission is not afraid of arbitration. (Applause.) We are carefully studying the possibility of suggesting to the powers that be a form of arbitration.20

Mr. Boudreau's remarks were received with much enthusiasm, but the extent to which they represented official thinking is open to question. In any case, since the delivery of his address, there has been a complete turnover of Civil Service Commissioners. That his views were not shared by the Government became obvious from a speech made a day later by the Hon. Walter E. Harris, the Minister of Finance. During the course of his remarks he said: I noticed that one of the Civil Service Commissioners has been good enough to address himself to you, and I am glad that he did so because it points up the relationship of the Civil Service Commission to the Government. The Commission is a wholly independent body, independent of the Government. The Commissioners have their own views and of course are free to express them. For that reason up to the present time we have felt that the ultimate decision on these matters would of course have to be made by the Government itself because Parliament as you know, is rather jealous of the expenditure of public monies and prefers to do that itself and not have it done by others. That is the thinking which I submit to you at the moment and which I know 20. Reported in Civ. Sere. Rev., XXIX (September 1956), 859.

124

FROM CONSULTATION TO NEGOTIATION

may not be agreeable to your views in many respects. But I place it before you again for criticism.21

The Convention resolution on collective bargaining went a good deal farther than the one passed in 1953. It called for the establishment of "Conciliation Machinery through an Arbitration Tribunal" whose awards would be accepted by both sides. It also instructed the Federation to seek "the abolition of Section 55 of the Industrial Relations and Disputes Investigation Act and . . . it further recommended that the Convention approve the principle of collective bargaining for civil servants with the association having the required membership."22 The language of the resolution is rather awkward but its meaning is clear. Another resolution urged the Government to set up a Royal Commission to investigate the Civil Service Commission, the principles of salary determination, and the means of adapting British arbitration experience to the requirements of the Canadian Civil Service. A deputation of the Civil Service Federation met with the Minister of Finance in September. Among the issues raised was that of arbitration. The Federation submitted a lengthy brief on this subject, the essence of which was that the National Joint Council be charged with the responsibility of drawing up an arbitration agreement similar to the one in effect in the United Kingdom. The Minister said the matter would be taken under advisement and the Federation would be informed of the Government's decision in due course. An interesting contretemps over this brief developed at 21. Ibid., p. 342. 22. Ibid., p. 319.

125

FROM CONSULTATION TO NEGOTIATION

the meeting of the Federation's National Council held at the end of November. A spokesman for one of the more radical affiliates of the Federation questioned the authority of the Executive to ask for an arbitration tribunal without tying it to the broader problem of collective bargaining. He argued that such action was an abuse of the mandate of the convention. The President of the Federation replied that in electing its officials the convention was also prepared to grant some limited discretion: You have faith in us, and you expect us to bring about certain things, but I submit that in the doing of these things you must give us a little leeway in timing, when we realize we are running up against a stone wall. It does not mean that because we have asked for an independent Arbitration Tribunal we have thrown out your mandate of last July. ... I want Collective Bargaining as well as any of you. As long as I hold office I will strive to get it. You should have faith in the people you elect to conduct your business.zs

The Minister of Finance replied to the Federation's brief on December 10, 1956. His letter implied a criticism of the brief for its vagueness: There is no indication of the nature and scope of the tribunal you have in mind, the kind of procedures for determining pay and other benefits into which it would fit, nor the principles on which it would be instructed by Parliament to make its decisions.24

In any case, the Minister rejected the request for arbitration on the grounds that the existing machinery was appropriate and "that any necessary improvements can 23. Civ. Serv. Rev., XXX (March 1957), 43. 24. Ibid., p. 80.

126

FROM CONSULTATION TO NEGOTIATION

be made without introducing widespread arbitration, which seems to us quite unnecessary and undesirable."25 He also refused to be impressed by examples from British practice on the grounds that the needs of the Canadian civil service could best be solved on the basis of its own experience. A significant shift in the Government's position on its relations with staff associations was presaged in an address by Prime Minister St. Laurent before the Professional Institute of the Public Service of Canada on February 23, 1957. Since the Prime Minister's statement of February 21, 1951, there had been little evidence of change in the policy it set forth. The Government was certainly aware of the growing sentiment among civil servants for a revision of negotiating procedures, and various officials were no doubt giving thought to the problem. But the first public indication of a change in official thinking was given by the Prime Minister on the occasion noted. The main theme of Mr. St. Laurent's address was that a satisfactory adjustment of relations between the Government and the staff associations could be accomplished by the clarification and, in some cases, the redefinition of the status and functions of the Civil Service Commission. He pointed out that a reorganized Commission, under a new chairman, would be asked to carry out a thorough review of the Civil Service Act in order "to bring it into accord with modern conditions and with conditions to be expected in the 1960's."26 He did not consider that the review would indicate the need for radical changes that might involve 25. Ibid. 26. Ibid., p. 10.

127

FROM CONSULTATION TO NEGOTIATION

the removal from the Commission of any of its primary functions. He did think, however, that one of the main problems would be "to define properly and most effectively the role that the Commission should play in relations with Civil Service organizations . .. at a time when such organizations are taking a more active part in working out the terms and conditions of employment of Civil Servants."27 The representations of the staff in favour of compulsory arbitration had apparently stimulated official thinking, for Mr. St. Laurent developed his argument on this point very carefully: I feel that the proper use and development of the Civil Service Commission offers more hope in securing the fair and effective settlement and revision of the terms of service of Civil Servants than would the creation of some ad hoc arbitration body ... before advocating special new machinery for arbitration, we should give serious thought to the proper use of the body already created by Parliament with authority in this field. Here we have, in the Commission a specialized, impartial and experienced tribunal, armed with a detailed law that enjoys a great measure of public support, made up of members who may only be dismissed by Parliament; a body that is not subject to any direction by the government and which is provided with a large and expert staff. This organization is able to understand the views of both the Civil Service and the government and its departments. It has the duty and the qualifications to advise and inform both the government as an employer and the Civil Servants as employees. It can mediate effectively between them if it is given an opportunity.28

27. Ibid., p. 12. 28. Ibid.

128

FROM CONSULTATION TO NEGOTIATION

The Prime Minister reiterated the Government's intention to study civil service arbitration in Great Britain, but he expressed his doubts about the desirability of adopting arbitration as a regular feature: Arbitration is not a normal part of Canadian practice in industrial relations. ... I have good reason to know that in our country arbitration is accepted, even in real emergencies, only with the greatest reluctance. It does not seem to be a satisfactory substitute for other regular processes of determining pay scales. Wherever it comes to be regarded as the normal pattern of solution, neither side seems disposed to make efforts to meet the views of the other and to achieve a practical solution without arbitration.29

The general criticism of arbitration as a substitute for negotiation was well taken and the problems it posed will be examined later. However, the whole weight of the argument rested on the assumption that "other regular processes of determining pay scales" were in fact available. It was precisely because the staff organizations did not see a satisfactory alternative to ultimate arbitration, unless it was full bargaining rights under the labour relations legislation, that they regarded it as desirable. Since they were prepared to reject the strike weapon, they saw in arbitration the only safeguard against unilateral action by the Government. On the question of closer consultation with the staff in determining pay scales, Mr. St. Laurent suggested a number of improvements. He asserted that the principles of pay determination which had been accepted by the Government—sufficient to attract and retain competent personnel and bearing a fair relationship with 29. Ibid. (My italics.)

129

FROM CONSULTATION TO NEGOTIATION

comparable work in private employment—were valid. There was, he admitted, room for disagreement on the way these principles were being applied. The Government was, therefore, prepared to give representatives of the staff access to the facts and figures used in determining pay policy and to provide an opportunity for consultation on their applicability. The machinery to give effect to this policy is now in operation and will be examined in due course. The change in government after the general election of June 10, 1957, cut short whatever positive action the Liberal government might have been prepared to initiate. It was, however, clear from Mr. St. Laurent's remarks that he expected the Civil Service Commission rather than the Government to make the substantive recommendations for the revision of the Civil Service Act, and to devise the machinery for making available to the staff the facts on which salary decisions were based. The staff organizations, while appreciating the value of such measures, were not satisfied that their basic claim for bargaining rights and arbitration had been met. Thus, it was not surprising that representations were made to the new Cabinet as soon as it was constituted. The Civil Service Federation wrote to the new Secretary of State on June 28, 1957, setting forth its complaints about "the lack of any form of negotiation." The letter quoted the resolution on collective bargaining which had been passed at the Federation's 1956 convention and requested an early interview with members of the Government to discuss the matter. A deputation from the Federation met with the Finance Minister, the Labour Minister, and the Secretary of 130

FROM CONSULTATION TO NEGOTIATION

State on August 20. The chief spokesman for the deputation elaborated his organization's official position. He emphasized its rejection of the strike weapon in public service staff relations and promised a no-strike commitment if collective bargaining were granted. The interview was a cordial one, and the Minister of Finance requested a written submission from the Federation which could be discussed and studied by the Cabinet. A memorandum with a covering letter was sent to the Minister of Finance on August 21. The letter was careful to emphasize two points. First, that in making the representations the Federation was carrying out the mandate laid down at its 1956 convention to seek the abolition of Section 55 of the Industrial Relations and Disputes Investigation Act. Secondly, that the specific proposals in the memorandum could only be regarded as tentative since the National Council of the Federation would have to pass on them. The memorandum itself was both a summary of past efforts to achieve a more comprehensive negotiating machinery for the civil service and a concise restatement of the arguments as to why this was desirable and possible. One paragraph, however, deserves attention for its implications and for some of the repercussions it caused: We now come to a consideration of the actual form and method of negotiating envisioned by the Civil Service Federation. We are of the opinion that the only immediate action required by the Government is the removal of Section 55 of the Industrial Relations and Disputes Investigation Act. This will leave the way open for the Civil Service Federation, as representing the majority of Federal government employees, to seek certification as their bargaining agent from the Canada Labour Relations Board. Once this certification is granted, the Civil Service Federation would re-

131

FROM CONSULTATION TO NEGOTIATION

quest the Government to commence collective bargaining with a view to the conclusion of a collective agreement in accordance with Section 12 of the Industrial Relations and Disputes Investigation Act. Presumably the Cabinet would appoint officers to represent them in the negotiations, just as officers of the Federation will be delegated to act on behalf of its members.30

There was a vigorous reaction from a number of important staff associations to the implications of removing Section 55 from the Industrial Relations and Disputes Investigation Act. It seems clear from the above excerpt that the Federation, as the largest organization of civil servants, expected to become the exclusive bargaining agent for all civil servants under the certification procedures of the Act if Section 55 were repealed. In the absence of real progress towards the unification of the major groups this could not but pose a serious threat to the existence of the smaller associations. The Federation may not have intended such a threat but it was implicit in the memorandum signed by its leading officers. The executives of the Civil Service Association of Ottawa and the Amalgamated Civil Servants of Canada sent a joint letter on this issue to the Secretary of State on August 23, 1957. While expressing agreement that there was a pressing need to improve the system of negotiation, the letter declared: Our Associations are unalterably opposed to the suggestion that a satisfactory negotiating procedure can be achieved simply by repealing Section 55 of the Industrial Relations and Disputes Investigation Act. Because of the peculiar relationship between civil servants and their employer, the CSAO and ACSC believe that a special procedure must be 80. Reported in the

132

Civ. Serv. Rev., XXX (September 1957), 274.

FROM CONSULTATION TO NEGOTIATION

developed for bargaining between the Crown and its servants ... we are confident that, before reaching a decision, you will wish to hear the views of representatives of the 30,000 organized civil servants not represented by the Civil Service Federation.3I

The Professional Institute of the Public Service of Canada likewise took a strong stand against the Federation's approach. An editorial in the Institute's journal pointed out that many incongruities might develop "should machinery administered by civil servants [i.e. under federal labour legislation], but designed for noncivil servants, be set in motion on behalf of civil servants."32 The editorial went on to say: Not least to be considered is the matter of bargaining agents, and bargaining units. At the present time we are watching the new procedures being established by the Civil Service Commission. We do not propose to take a stand that might in any way jeopardize these developments, which to date have been promising. In our view, the compulsory certification of bargaining units of civil servants would raise very serious questions for professional personnel, and might well have adverse effects on the attempts to create more adequate salary investigation machinery.33

The 1950's were years of gestation. Joint consultation had achieved useful results but its inadequacy as a vehicle of staff relations led to the growing demand for a more direct confrontation between Government and staff associations on the fundamental issue of salary determination. It should be noted, however, that despite the sharp crescendo of resolutions and briefs the bar31. Reported in the Civ. Sew. News (September 1957), 3. 32. Professional Public Service (journal of the Professional Institute of the Public Service of Canada), 36 (October 1957), 1. 33. Ibid.

133

FROM CONSULTATION TO NEGOTIATION

gaining power of the associations vis-à-vis the Government had changed very little. There was a steady, if unspectacular, increase in the membership of individual associations, but the failure to achieve a degree of unity was an obstacle to their effectiveness. While the associations remained weak, the Government, secure in its majority, could afford to be quite insensitive to the pressures of the staff organizations. It is not always appreciated by those who seek inspiration from the British experience that the political context was a decisive factor in the development of their staff relations. Major concessions, notably the Arbitration Agreement, were exacted during periods of political instability resulting from the finely balanced relationship between the major political parties. In Canada, the political upset of June 1957 produced a minority Government and might have provided the staff associations, had they been able to coordinate their efforts, with an opportunity to press their views with great effectiveness. They failed in this, and before long another election put an end to the Government's sense of insecurity. The period since 1957, nevertheless, has been one of considerable ferment. A Pay Research Bureau was established in the autumn of 1957; the report of the Civil Service Commission on personnel administration has been published; the Civil Service Act is in the process of being revised; and a Royal Commission on Government Organization has included the sphere of staff relations in the ambit of its investigations. It is too soon to evaluate the developments since 1957; a longer historical perspective is needed. But we can usefully describe them and consider some of their implications. 134

Chapter VI THE ROLE OF THE CIVIL SERVICE COMMISSION In his address to the Professional Institute in early 1957, Prime Minister St. Laurent had intimated that the Government was contemplating the creation of some kind of fact-finding machinery as an aid to staff relations. The reference was rather vague. He suggested that the staff organizations might be permitted to examine the factual material on salaries and working conditions which served as the basis for the recommendations of the Civil Service Commission. The staff associations seized on the idea with enthusiasm. It looked like a move in their direction. They had often questioned the Commission's data on outside conditions, and now it seemed that they might have some say about it. Above all, what was being proposed seemed to resemble the Pay Research Unit which was then being set up in Britain. It was rather unusual for the Canadian government to be so quick in emulating British practice in the field of staff relations. The Bureau of Pay Research On March 8, 1957, a joint salaries brief presented to the Minister of Finance by representatives of the Civil Service Federation, the Civil Service Association of Ottawa, the Amalgamated Civil Servants of Canada and 135

THE ROLE OF THE CIVIL SERVICE COMMISSION

the Federated Association of Letter Carriers incorporated a proposal for a "Salary Research Unit." The spokesman on this particular proposal concluded his remarks as follows: I cannot overemphasize, Sir, that the Salary Research Unit we are recommending must be strictly a fact-finding body, not one that would make recommendations to the Government. Nor should it attempt to evaluate differences in the duties of the jobs which are being compared, it should just describe and define the similarities and differences in these jobs, and state what pay and conditions of service are attached to them. And finally, this independent, objective Research Unit must make its findings equally available to the Staff Organizations and the Government. Only in this way can employee representatives have an effective voice in the determination of salary levels.1

There was a change of government in June 1957, but the new Government went ahead with the formation of the fact-finding unit. A press release from the Civil Service Commission on September 4, 1957, announced the establishment of a Bureau of Pay Research which would provide objective information on salaries and working conditions. The Commission is responsible, under the Civil Service Act, for recommending to the Government of Canada salary rates for all classified civil servants. The information upon which the Commission's recommendations are based will now be centralized in the new Bureau, which will form an integral part of the Commission's organization.

1. Reported in The Civil Service News, May 1957, p. 5.

136

THE BUREAU OF PAY RESEARCH

The Commission will establish an advisory committee to advise and assist in the work of the Bureau. The members of this committee will include representatives of Government Departments and staff organizations.2

The staff associations reacted favourably to this announcement. It seemed to be the first step for which they had been waiting: We have hopes that the creation of the Pay Research Unit may herald the beginning of a new attitude on the part of the Government regarding not only methods of salary determination, but also of negotiating procedures in the public service.3 It is remarkable that the decision to locate the Bureau within the Civil Service Commission was not questioned. The staff groups did at one time speak in terms of an independent unit but apparently did not consider it important enough to press the point. In making the Bureau an "integral part of the Commission's organization" very little was being added to the process of staff relations itself. The Commission had always found it necessary to collect information on outside conditions of work in order to justify its recommendations to the Government. Now it was given the funds to do it more efficiently. To be sure, its findings were to be made available to both Government and Staff Sides, but the precise recommendations from the Commission to the Government, ostensibly based on the factual data, were to remain confidential. Given the undefined relationship between the Civil Service Commission and the Government, it is difficult to see how 2. The text of the press release may be found in Professional Public Service, 36 (October 1957), IL 3. Civ. Serv. News, September 1957, p. 2.

137

THE ROLE OF THE CIVIL SERVICE COMMISSION

the staff associations were going to derive any significant benefits from the new arrangements. This aspect of the problem will be discussed at greater length in the next chapter. When the Rt. Hon. Mr. St. Laurent had first mentioned the idea of fact-finding he used a rather revealing phrase. He said that the Government was ready "to have its officials along with those of the Civil Service Commission consult with representatives of Civil Service Organizations on the facts and figures involved in salary policy."' The implication was that the Government and the Commission were on one side and the associations on the other. Fortunately, the terms of reference of the Bureau avoid this implication. Its reports based on the data it collects and analyses are at the disposal of both the Government and the associations. It seems quite certain that when the Canadian government decided to provide the funds for the Pay Research Bureau it regarded the Bureau, among other things, as a device which would effectively counter staff pressures for collective bargaining procedures. For, if one makes the reasonable assumption that both sides can agree on the criteria for determining civil service pay, and if the Bureau is recognized as the independent, expert, and impartial repository of the data to which these criteria could be applied, it follows that there should be little room left for negotiation: the electronic computer makes the bargaining table obsolete. Of course, it was not going to be quite so simple in practice, as could be easily foreseen. There could be 4. Reported in the Civ. Serv. Rev., XXX (March 1957), 14. 138

THE BUREAU OF PAY RESEARCH

disagreement on the nature of the data being collected and on its interpretation, and the question of priorities might create all sorts of difficulties. Provision was therefore made for an advisory committee to assist the Bureau in its work. The committee was made up of three staff representatives, one from each of the major associations, three government representatives, and a Civil Service Commissioner as chairman. The idea of a joint committee to advise the Bureau seemed to offer interesting practical possibilities. If the Commission based its recommendations on the findings of the Bureau, and if the Bureau in turn were guided by the advice of the joint committee, there could be a basis at an early stage for staff participation in determining salaries. This was hardly enough to satisfy the claims of the staff groups but it seemed to them a promising beginning. Experience, however, seems to have fallen short of this early promise. The technical statistical work of the Pay Research Bureau has progressed admirably, but it has contributed little to the improvement of staff relations. It might be useful to digress a little and examine briefly the British Civil Service Pay Research Unit which was undoubtedly the prototype for the Canadian Bureau. It points up the difficulty of borrowing an institution which was devised for a particular context and attempting to adapt it to another. The Pay Research Unit was established in Britain in 1956, under the Priestley Agreement.5 Unlike the Bureau in Canada, which is a branch of the Civil Service 5. The Priestley Agreement was reached in the National Whitley Council on the basis of recommendations made by the Royal Commission on the Civil Service, 1953-55.

139

THE ROLE OF THE CIVIL SERVICE COMMISSION

Commission, the Unit is under the general control and direction of the National Whitley Council. This control is exercised by a steering committee which is made up of seven members from each side of the National Whitley Council. A director, appointed by the Prime Minister, is responsible for the day-to-day operations of the Unit, developing the program of research and observing the priorities laid down by the steering committee. The administrative costs of the Unit are borne by the Exchequer. It is strictly a fact-finding organization. "The major advantage of this machinery for fact finding by the Pay Research Unit is that it provides the negotiating parties with material which is trusted by both sides as being the findings of an impartial investigating body, and on this material they can conduct their subsequent negotiations. The result of these negotiations can be justified to public opinion as being based on the principle of fair comparisons with outside employment."6 It is evident that the Pay Research Unit was intended to be an aid to existing procedures of negotiation and, when necessary, arbitration. The conception of pay research in Canada has proved to be much narrower. The Civil Service Commission claims the fullest authority over the work of the Bureau. It listens to the advice of the Advisory Committee, but its own discretion is otherwise unlimited. The Bureau's reports are made available to the interested parties, but there is no negotiation. A form of consultation is only now being developed. The theory seems to be that, having access to the facts and figures, both sides will understand and accept the ration6. Anonymous, "The Priestley Commission and Afterwards," Public Administration, XXXVI (Summer 1958), 182. (My italics.)

140

PAY RESEARCH IN PRACTICE

ality of the salary recommendations made by the Civil Service Commission. It does not, however, appear to be working out that way. Indeed, there is a feeling on the Staff Side that the Bureau of Pay Research has become yet another buffer between the Government and itself. Pay Research in Practice. In August 1958, the Minister of Finance was asked whether the Government had received a report from the Civil Service Commission regarding salaries, and whether the report would be made public. He answered: Reports of that nature come to the Minister of Finance. I recently received a communication from the civil service commission on this subject, that is to say a communication reporting on the study made by the salaries research bureau of the commission. ... The report I received from the commission indicated in general that the salaries research bureau, following its extended investigation into the scale of salaries, finds there is no case at present for a general increase, but that there are certain categories in the civil service into which there should be further investigation to determine from the facts whether a case for an increase exists.?

One has the impression that the Minister was particularly anxious to connect the report of the Commission with the work of the Bureau. He thus intended to justify what was in fact a unilateral policy on the grounds that it was based on the supposedly objective and unequivocal facts collected by the Bureau on 7. Can. H. of C. Debates, August 16, 1958, p. 3653.

141

THE ROLE OF THE CIVIL SERVICE COMMISSION

whose advisory committee the staff associations were represented. Although the staff associations had had access to the raw data of the Pay Research Bureau, they were not consulted on the interpretation of this information. Nor were they given an opportunity to discuss the Bureau's findings with a representative of the Government in order to reach some common agreement on their applicability to the civil service. The Commission had followed the usual course of submitting a confidential report to the Minister of Finance on July 17, 1958. The Minister was questioned in the House a month later. His reply angered the staff associations, and on September 9, in response to their protestations, he sent them the text of the Commission's report and recommendations. This was unprecedented. In the covering letter, the Minister stressed the statutory duty of the Commission to make recommendations on pay to the Governor in Council. "Thus in fact, as well as in law, the Commission is the independent source of advice to the Government in all matters of salaries and wages to civil servants and this has been so since the Civil Service Act was enacted by Parliament in 1918."8 Referring to the Association's request for an interview, he affirmed that the Government was always glad to meet with staff representatives but suggested that in this case a meeting with the Commission might be more appropriate. He wrote, I infer that you and your associates have not discussed this matter with the Civil Service Commission. It would appear 8. Letter from the Minister of Finance to the Civil Service Association of Canada, dated September 9, 1958. This interpretation of the Civil Service Act is, in fact, questionable. See below, pp. 174ff.

142

PAY RESEARCH IN PRACTICE

to me, in the light of the statutory responsibility of the Commission in these matters, that it would be appropriate for you to do so, and I am quite sure that the Commission will be pleased to meet you and to discuss the matter of salary and wage rates fully with you.9

The major staff associations were apparently not convinced by the reasoning in the Commission's formal recommendation to the Government. They felt that the report of the Bureau of Pay Research, on which the recommendation was based, had been inadequate. The Bureau had been in existence for less than a year and could not possibly have made a thoroughgoing study of all the factors. They inferred from the Minister's letter that his advice to discuss the matter with the Civil Service Commission was, in effect, an invitation to re-open the whole question of salary adjustments. The Chairman of the Civil Service Commission, however, quickly disabused them of this viewpoint. In a prepared statement he said: There is no question of any investigation of the whole basis under which the Commission made its recommendation to the Government. There will be no 'probe' or 'review' of the methods and operations of the Pay Research Bureau. ... If new evidence, in the judgment of the Commission, invalidates the decision against an increase, then the Commission will send new recommendations to the Government.19.

It is evident that the Commission was, at the time, already viewing itself as a quasi-arbitral body whose recommendations, based on the objective data of pay 9. Ibid. 10. Ottawa Journal, September 18, 1958, as quoted in the Civ. Seru. Rev., XXXI (December 1958), 352.

143

THE ROLE OF THE CIVIL SERVICE COMMISSION

research, would be accepted by both Government and staff as conclusive. This view was more fully articulated in a special report which it submitted at the end of 1958. Before examining this report, however, it may be in order to describe the outcome of subsequent salary recommendations which were made by the Commission in the summer of 1959. One of the main arguments used by the Commission in its 1958 report to the Government was that the device of a general salary adjustment in as complex an organization as the civil service was essentially irrational: It is our firm opinion that, from the points of view of both employer and employee, the general revision across the board is not a satisfactory method of adjustment. It tends to be arbitrary and inflexible, and to distort the principle of class comparability. It seems to us that the better method is to adjust Civil Service salaries on a class basis after a comparison of key classes in the Service with appropriate classes in private employment. This will take time initially, but the end results should be a good deal more satisfactory all round."

The argument was sound but the associations thought it to be unwarranted in the context of the practical situation. The Professional Institute of the Public Service of Canada dealt with this point in a brief submitted to the Civil Service Commission on April 23, 1959: As a general philosophy we agree with the Civil Service Commission in its class-by-class approach to adjustments— provided that the classification structure is not so cumber11. Letter from the Civil Service Commission to the Minister of Finance, July 17, 1958.

144

PAY RESEARCH IN PRACTICE

some and the procedure of fact-finding and analysis so lengthy that such a class-by-class review becomes a paralyzingly slow process. In the present situation if the Civil Service Commission is not yet in a position to apply effectively the more refined methods of salary determination now being developed, the Professional Institute must request that the employer take less refined interim measures to alleviate the present urgent requirements.12

The Pay Research Bureau made its second major report to the Civil Service Commission in May 1959. In keeping with its expressed policy, the Commission made the Bureau's report available, as a confidential document, to the Government and the associations represented on the Advisory Committee. The associations immediately drew the conclusion from the report that a general salary increase, retroactive to October 1, 1958, was indicated. They sought meetings with the Commission to press their claims, thus hoping to influence the report and recommendations of the Commission to the Government. The Commission submitted its confidential recommendations to the Government some time in June 1959. It soon became evident, and this was later confirmed, that salary increases for the majority of classified civil servants had been recommended. There was no immediate response from the Government, but the issue was brought into the open by a question in the House of Commons: Mr. Alexis Caron (Hull): May I direct a question to the Minister of Finance. Has the government received a report from the civil service commission regarding increases in the salaries of civil servants? 12. Prof. Pub. Sew., 38 (May 1959), 4.

145

THE ROLE OF THE CIVIL SERVICE COMMISSION

Hon. Donald M. Fleming (Minister of Finance): Mr. Speaker, I have received a report from the civil service commission in this respect. However, the matter is not final as between the civil service commission and the government, because further discussions must be held with the commission on it before I would be prepared to regard it as a final submission on the part of the commission to the government.13

The staff associations found the Minister's reply disquieting. Did it imply that the Government hoped as a result of its "further discussions" to prevail upon the Commission to modify its report? What would this do to the much vaunted independence of the Commission? A Joint Action Committee of the three major staff groups met with the Minister of Finance on July 20 to seek clarification. They were assured that the Government had no intention of sending back the report to the Commission for amendment. The Government merely wanted to be certain that all the relevant considerations had been given due weight by the Commission. The Minister maintained that this was the normal procedure before a final decision could be made. "He was most emphatic in maintaining that the Government did not wish to take any action which would undermine the independent position of the Civil Service Commission."" The Associations were apparently reassured. They expressed dissatisfaction with the delay in announcing a decision, but they were prepared to wait a few weeks in the expectation of a favourable outcome. The Gov13. Can H. of C. Debates, July 9, 1959, 5704. 14. Circular Report to the Membership of Civil Service Organizations on the Salary Situation by the Joint Action Committee, August 1959.

146

PAY RESEARCH IN PRACTICE

ernment's decision came nearly three months later. The Minister of Finance called the Joint Action Committee of the associations to his office and announced that the Government had decided not to accept the recommendation of the Civil Service Commission. At the same time, the Government issued a press release stating its decision and giving the reasons for it. Two sets of arguments were put forward. The first was that if the recommended increases, including retroactivity, were put into effect, and if similar increases were extended to the Armed Forces and the Royal Canadian Mounted Police, the budgetary cost would be prohibitive. In short, the Government claimed inability to pay. The second argument implied a lack of confidence in the Commission's recommendations, and by implication, in the work of the Pay Research Bureau. The Government questioned the statistical data and inferences on which the Commission's report was based. Whether or not the Government's case was sound in fact and logic is not relevant to the present discussion. One may grant that the Government acted properly in terms of its responsibility for economy and efficient financial administration. One may even grant that the Commission's interpretation of the Pay Research Bureau's figures was faulty or that the figures were inadequate--although it is difficult to imagine that they were so faulty as to justify the Government's all-ornothing approach. What is relevant, however, is that by its unilateral action the Government undercut the fragile structure of staff relations that had been so assiduously built up in the preceding two years. This, as will be seen, was based on the notion that the Commission performed a quasi-arbitral role. Indeed, the 147

THE ROLE OF THE CIVIL SERVICE COMMISSION

Government's action exposed the fundamental weakness of this structure. A series of adjustments in civil service salaries was authorized during 1960. They had been forecast in the Budget speech of March 31. The unique aspect of these adjustments was that they were for clusters of related classes rather than across-the-board. The rationale for this approach had been argued in a special report prepared by the Civil Service Commission. The staff associations, however, felt that its logic rested on the assumption of a simplified classification structure and a highly efficient Pay Research Bureau capable of maintaining a continuous flow of current and relevant information. Neither of these conditions had been fulfilled in 1960. There had been no consultation with the staff on the grouping of classes or on the order of priorities. The associations were particularly disturbed by the failure of the Government to take into account the time lag between the accumulation of data on which the adjustments were based and the date of their coming into effect. An additional irritant was the fact that the effective dates for the various adjustments differed according to the dates of their announcement. The associations argued that the Pay Research data were, at best, valid for October 1959, and the new salary scales, therefore, should have applied from that date. When the Government proved to be intransigent on this point, they urged, in the name of equity, that all of the piecemeal adjustments be made effective from the same date—April 1, 1960. Their protestations were of no avail and each adjustment went into effect on the first day of the month in which it was announced. 148

THE HEENEY REPORT

The Heeney Report The two cases of pay research and Government action described above, while providing an interesting contrast to each other, take on particular significance in the light of a major report on personnel administration prepared by the Civil Service Commission and made public in January 1959. Or perhaps it would be more accurate to say that these cases reveal the inadequacy of the report. The report on Personnel Administration in the Public Service was tabled in Parliament on January 16, 1959. It was the product of eighteen months of intensive review which had been undertaken by the Civil Service Commission under Mr. A.D.P. Heeney, as chairman, and his two colleagues Miss Ruth Addison and Mr. Paul Pelletier. The three Commissioners had all been appointed in the spring and early summer of 1957. Prime Minister St. Laurent had already indicated that the main task of the newly appointed Commissioners would be to review the Civil Service Act of 1918, in the light of new conditions. He recognized the problem of staff relations and suggested that the Commission might attempt "to define properly and most effectively the role that the Commission should play . . . at a time when such organizations [staff associations] are taking a more active part in working out the terms and conditions of employment of Civil Servants."" He surmised, however, that there would not be any need for radical changes in the existing institutions. A similar view was expressed by Prime Minister Diefenbaker on May 1, 1958, in his address to the 15. Civ. Serv. Rev., XXX (March 1957), 12.

149

THE ROLE OF THE CIVIL SERVICE COMMISSION

Merger Convention of the Civil Service Association of Canada. At that time the Commission was well advanced in its investigation. He declared: I believe that Civil Servants, through representatives of their organizations, should have a greater voice in the process of determining Civil Service salaries. There should be a more systematic method of bringing your views and your information to bear in the application of those principles of salary policy on which there is already a wide measure of agreement. I think this improvement can be achieved within the general framework of institutions and laws which we have already. What is needed is more opportunity and better arrangements for your representatives to sit down at a table, with officials representing the Government and with officers of the Civil Service Commission having the essential facts and figures before them, to discuss in detail the comparisons between Civil Service salaries in various classifications and the pay for similar work in private employment.16

It is noteworthy that the report on Personnel Administration in the Public Service (the Heeney Report) did not depart radically, in the matter of staff relations, from the general views put forward by the two prime ministers. The Heeney Report is a comprehensive document which deals very ably with most of the technical aspects of personnel management in a public service. It examines the problems of organization, classification, recruitment, discipline, and so on. It recommends a draft for a revised Civil Service Act which is very elaborate in its details. It seems, however, to fall short in its appreciation of the real issues of staff relations. 16. Reported in CSAC Journal, 1 (June 1958), 10.

150

THE HEENEY REPORT

One wonders if it was not inhibited by the prejudgments of the prime ministers and the thinking out loud of some high government officials. The term negotiation as being in any way descriptive of relations between the Government and its employees is studiously avoided. The word does not appear in the report. Even the word consultation is used in a special sense. The key phrase is employee participation: The Commission believes that in the general interest, means should be developed to enable civil servants to participate more effectively in the process by which their salaries and conditions of work are determined. ... We have concluded that the differences in the circumstances of private and public employment do not readily admit of the simple and unqualified application to the Civil Service of the normal industrial pattern of collective bargaining. Nevertheless, we believe that, by developing and enlarging the role of the Commission in this area and by strengthening the National Joint Council, it should be possible, with the co-operation of the staff associations, to arrive at a solution which would meet the essential objectives of the employees without involving the genuine difficulties associated with other proposals.17

The Commission outlines its suggestions for employee participation in a special appendix to the report. It recommends that the Government should request the Commission to "develop and institute suitable machinery" to give effect to its plan. The Government has the authority necessary to carry this out, the report argues, and points out that "it is neither necessary nor desir-

17. Personnel Administration in the Public Service (Ottawa 1959), p. 14. (My emphasis.) The staff organizations have never suggested the "simple and unqualified" application of collective bargaining.

151

THE ROLE OF THE CIVIL SERVICE COMMISSION

able that detailed provisions on this subject should be embodied in the law."18 Appendix B of the Heeney Report spells out its ideas about staff relations in some detail. It begins with a recognition of the shortcomings of the National Joint Council and urges "a re-examination of the terms of reference and procedures of the Council with the object of strengthening its position and prestige and making it a more useful and effective body for joint consultation."'° It notes, however, that questions of pay had never been included in the Council's deliberations and urges that it should remain so because "we do not consider that the Council could provide a suitable forum for joint consultation and systematic discussion of this complex subject."2° In devising its proposal for an alternative, the Commission affirms that it took into account "the views which have been expressed from time to time on the sides of both employer and employee." It quotes from the statement made by the Prime Minister on May 1, 1958, which it regards as an authoritative expression of the Government's viewpoint. It also refers to the claim of staff groups for negotiating procedures, recognizing differences among them as to degree, but noting that "no recognized association has asserted on behalf of civil servants the right to strike."2' The problem, as the Report sees it, is that "there has so far been no systematic procedure for discussion of these matters between representatives of employees and 18. Personnel Administration in the Pub. Serv., p. 14. 19. Ibid., Appx. B, 132. 20. Ibid. 21. Ibid.

152

THE HEENEY REPORT

representatives of the Government."22 In outlining its solution the Report places the Civil Service Commission in the centre of the process. It asserts that the Commission is required under the Civil Service Act to recommend the salary rates for the classified civil service and urges that it should continue to bear this responsibility: In discharging this statutory obligation respecting rates of pay, the Commission bases its recommendations on the best evidence available to it concerning outside rates of comparable work. Here, it is in no sense an agency of the Government, but is as fully independent in status as any special arbitral tribunal which might be set up by Parliament to resolve conflicts between employer and employee. The Commission is, therefore, in a position, in law and in fact, to provide the independent auspices under which representatives of the Government on the one hand, and representatives of the organized staff associations on the other, could discuss in systematic fashion questions of salaries and wages in government employment.23

The machinery envisaged is quite simple. Representatives of the Government would meet for discussions with representatives of the employees under the chairmanship of the Civil Service Commission. Both sides would present their evidence and this would be aided by the data prepared and made available by the Pay Research Bureau: When all the relevant evidence had been made known and arguments heard, the Commission, on the basis of the principles governing the determination of civil service pay, 22. Ibid. 23. Ibid. The point that the Commission is required to recommend salary rates is questionable, and it will be examined more fully in the next chapter. (My italics.)

153

THE ROLE OF THE CIVIL SERVICE COMMISSION

would deliberate and, in discharge of its statutory responsibility, would communicate its recommendation to the Government.24 An interesting refinement is that instead of the Commission making a confidential recommendation to the Government alone, it should, under the new procedure, communicate it simultaneously to both sides. The Report notes however, that "final decision on the Commission's recommendations would, of course, remain a matter for the Government, subject to the ultimate will of Parliament."25 The section of the Heeney Report dealing with staff relations represents the Commission's answer to the question of more effective employee participation "in the process by which their salaries and conditions of work are determined." But closer examination reveals the shortcomings of the scheme. It implies either too little or too much. From the viewpoint of the staff's desire for more useful procedures of negotiation very little is offered. There is provision for discussions under the independent auspices of the Commission, but no conclusion can be reached at these discussions. The Commission listens to the discussion and deliberates "on the basis of the principles governing the determination of civil service pay." It then makes a recommendation to the Government which is also communicated to the staff associations. The Government, however, is left with the final decision. It may accept the recommendation or, if it sees fit, may reject it on grounds such as its own judgment of the facts, or considerations of financial policy, or sheer political expe24. Personnel Administration in the Pub. Sew., p. 133. 25. Ibid.

154

THE HEENEY REPORT

diency. The associations are left in the same position as before; the procedures are somewhat more elaborate; but the unilateral power of decision remains with the Government. On the other hand, it seems evident that the Commission had a clear conception of what its own role in the new procedure was to be although it could not state it explicitly in the Report. Constitutional propriety required that the Government's responsibility and Parliament's ultimate authority be recognized, but the entire scheme is premised on the belief that both Government and staff associations would regard the Commission's recommendations as objective and conclusive. From the time of Prime Minister St. Laurent's speech of February 1957, the view of the Commission as "a specialized, impartial and experienced tribunal"" was carefully nurtured. This, it was thought, was an adequate answer to the demands of the staff organizations for a negotiating procedure culminating, if necessary, in arbitration. The Heeney Report implies it too. It projects an image of the Commission as a quasi-arbitral tribunal in the field of salary determination. In doing so, however, it overlooks a major difficulty. If, after receiving a recommendation from the Commission, a recommendation which was also communicated to the staff associations, the Government rejected it, the Commission would suffer a serious loss of confidence and prestige. Its ability to play an effective part in staff relations would be undermined. If, on the other hand, the Government felt bound to accept the recommendation on the grounds that it represented the ob26. See above, pp. 127ff.

155

THE ROLE OF THE CIVIL SERVICE COMMISSION

jective findings of an independent and competent tribunal, it would imply submission to compulsory arbitration in its least desirable form—arbitration without prior negotiation. It is a truism in the field of labour relations that while arbitration may, under certain conditions, be a useful device for resolving disputes that cannot be settled by negotiation, it is never a desirable substitute for negotiation. A case can be made for accepting arbitration in the minority of instances when a Government cannot reach agreement with its civil servants in negotiations. But to leave, in effect, the entire responsibility for fixing civil service salaries in the hands of an independent agency is not only poor government, it is also poor staff relations. The events of July to October 1959, described above, suggest that the Canadian government was not, in practice, prepared to accept this last implication of the Heeney Report in the sphere of pay policy. This may have been all to the good. But it was unfortunate that the Government had for a long time given the impression that it did support the view of the Commission as a quasi-arbitral body. When, in October 1959, the theory was forced to give way in the face of political exigencies, it left a hiatus of two years in the development of staff relations. It could be argued that the formal recommendations in this part of the Heeney Report are less important than the informal practice that might develop. The idea that Government officials should meet with staff representatives to discuss issues of pay under the auspices of the Civil Service Commission suggests interesting possibilities. Given the skilful mediation of the Commission, it is conceivable that the two sides could 156

THE HEENEY REPORT

be led to agree on adjustments in salaries. The Commission would then merely incorporate the agreement in its formal recommendation and this would be accepted by the Government as a matter of course. The procedure might be lengthy and involved at first, but it could lead gradually to real negotiations. The difficulty, however, is that too much would depend on the authority, skill, and forcefulness of the Commission's representative in these discussions. These are qualities that are not always easily come by. It is interesting to note that, a few hours after the Heeney Report was tabled in Parliament, the Government announced that Mr. Heeney was leaving the Civil Service Commission to take up the post of Canadian Ambassador to the United States. This was the post that Mr. Heeney had left in 1957, to become Chairman of the Commission. From February 1, 1959, to July 1, 1959, the Commission was without a chairman. It was during this period that its ill-fated recommendations on pay were framed. The Government's press release of October 13, announcing its decision to reject the Commission's recommendations, contained a rather intriguing and, perhaps, gratuitous reference to the "Civil Service Commission, as constituted in June 1959." This reference was noticed and widely interpreted as an expression of lack of confidence in the two members of the Commission responsible for the salary recommendations. It should be apparent from our discussion that the Commission has had a rather ambiguous role to play in the process of salary determination. If its advice is acceptable to the Government but not to the staff organizations, the Government may respond to complaints 157

THE ROLE OF THE CIVIL SERVICE COMMISSION

with the assertion that it is heeding the recommendations of an independent and expert agency. If the Commission's recommendation is judged unacceptable, the Government can always exercise its authority to reject it. The problem was less serious when the staff groups were passive and when communication between Commission and Government was highly confidential. Neither of these conditions obtains today. The associations are larger and more militant, and the availability of the Bureau of Pay Research reports allows them to anticipate the timing and contents of the Commission's recommendations on pay. A reassessment of the Commission's responsibilities and functions in this area would seem to be in order. Revision of the Civil Service Act The Heeney Report foreshadowed a major revision of the Civil Service Act, but more than a year was to elapse before the first steps were taken to accomplish this. On June 20, 1960, the House of Commons gave first reading to Bill C-77, "a measure respecting the civil service of Canada to amend, revise and consolidate the Civil Service Act." The bill did not get beyond first reading and was allowed to lapse. It was reintroduced, with some changes, as Bill C-71 in March 1961.27 As the present study is confined to the problems of staff relations, we need examine only the few sections that have a direct bearing on them. When Bill C-77 was first introduced it was evident, even at the resolution stage, that Parliament would not 27. The Bill was passed in September 1961, in the form recommended by the special committee of the House of Commons.

158

REVISION OF THE CIVIL SERVICE ACT

have the time to deal with it properly during that session. The Minister of Finance, who sponsored the bill, nevertheless urged that the House proceed to first reading so that it could be tabled and circulated. This was done, and it was then agreed to hold over the bill for the next session. In the meantime, Members of Parliament and other interested parties had the opportunity to study the proposed legislation and make their views known in various ways. The key provision of Bill C-77 from the staff's point of view was Clause 7 which deserves to be quoted in full: The Commission, and such members of the public service as the Minister of Finance may designate, shall from time to time consult with representatives of appropriate organizations and associations of employees with respect to pay and other terms and conditions of employment whenever in the opinion of the Commission or the Minister of Finance, as the case may be, such consultation is necessary or desirable in the interests of the civil service or the Government.28

The Government considered this to be a major innovation in the field of staff relations. It implied statutory recognition of appropriate staff organizations and conceded them the right to be consulted on matters of pay and working conditions. The associations, however, were less enthusiastic about Clause 7. They were dubious about the active consultative role projected for the Civil Service Commission. They were extremely unhappy with the restrictive meaning of the world consult. Above all, they protested against the clear implication that even con28. Can. H. of C., "Bill C-77, an Act respecting the Civil Service of Canada," First reading, June 20, 1960, p. 5.

159

THE ROLE OF THE CIVIL SERVICE COMMISSION

sultation was not to be a reciprocal right but would depend on "the opinion of the Commission or the Minister of Finance." There was ample time for public discussion before the bill was reintroduced in 1961. Spokesmen for the Government and the Commission hoped to reassure the staff groups on the wording of Clause 7. They argued the advantages of vague language in this area because it would allow scope for trial and development where more detailed and precise language would tend to be limiting. The Chairman of the Civil Service Commission, speaking to the convention of the Civil Service Association of Canada, declared that "Collective bargaining and the development of the highest logic and discussion on pay and other matters is perfectly capable of being undertaken under this clause."29 Civil servants were apparently not convinced by these exhortations. There was an outpouring of resolutions and declarations calling for a right to direct negotiation with the Government, backed by arbitration machinery. The views and representations of the staff organizations were not entirely without effect. The Civil Service Bill (this time as No. C-71) was again brought before the House of Commons in March 1961. It incorporated a number of changes from the earlier bill, the most important being in Clause 7. In moving second reading of the Bill, the Minister of Finance told the House that "the present measure is intended to remove all doubts in this regard . . . clear provision has been introduced to provide recognition of the right of the associations to initiate discussions with either the 29. Reported in the CSAC Journal (November 1960), p. 7. 160

REVISION OF THE CIVIL SERVICE ACT

Government or the commission."" The clause now stated that consultation would take place "at the request of such representatives [i.e. of the associations] or whenever in the opinion of the Commission or the Minister of Finance . . . such consultation is necessary or desirable." Debate on second reading of the bill centred on the question of staff relations. Without exception, opposition spokesmen expressed the view that the bill did not go far enough in meeting the claims of civil servants for negotiating procedures. One of the more surprising statements came from the Liberal member for Ottawa East who declared: The views of the official opposition on this most important issue can be summarized as follows: 1. We believe that the present Canadian system which provides only for consultations is completely inadequate to protect the fundamental right of the civil service for participation in collective negotiations ... 2. We believe that civil servants should be granted the right to joint negotiations and arbitration provided that the supremacy of parliament is safeguarded ...31

It turned out that the views so precisely stated were far less those of the official Opposition than those of the particular member who happened to represent a civil service constituency. The Parliamentary Secretary to the Minister of Finance, sensing the embarrassment of the Liberal front bench, struck back effectively: My hon. friends from Ottawa East and Hull now profess a lifetime, undying devotion to the full application of the principle of collective bargaining to civil service employees. 30. Can. H. of C. Debates junrevised), March 7, 1961, p. 2761. 31. Can. H. of C. Debates, March 8, 1961, p. 2796.

161

THE ROLE OF THE CIVIL SERVICE COMMISSION

With respect, I suggest that their conversion has come somewhat late in life.32

Then, referring to the fact that the recent Liberal Party rally had sidetracked a resolution on collective bargaining for civil servants, he continued: "What that much vaunted Liberal rally refused to endorse my hon. friends place before the house as Liberal policy."" Bill C-7I received second reading on March 10 and was referred to a special committee of the House for detailed study. The committee met twenty-three times, and the record of its proceedings runs to more than five hundred pages. The problem of staff relations was the most important consideration. It was in this area that the committee proposed a number of significant amendments to the bill. These were introduced by the Minister of Finance at the last sitting of the committee. The staff associations had no prior knowledge of the proposed changes and asked for time to study them. They sought an opportunity to place their views on the record of the committee's proceedings, but it was denied them. Clause 7 was redrafted completely without, however, deviating from the vocabulary of consultation. It now defined three levels of consultation—one with the Government exclusively, another with the Government and Civil Service Commission jointly, and a third with the Commission exclusively: 7. (I) The Minister of Finance or such members of the public service as he may designate shall from time to time consult with representatives of appropriate organizations and associations of employees with respect to remuneration, 32. Can. H. of C. Debates, March 10, 1961, p. 2868.

33. Ibid.

162

REVISION OF THE CIVIL SERVICE ACT

at the request of such representatives or whenever in the opinion of the Minister of Finance such consultation is necessary or desirable. (2) The Commission and such members of the public service as the Minister of Finance may designate shall from time to time consult with representatives of appropriate organizations and associations of employees with respect to the terms and conditions of employment referred to in subsection (1) of section 68, at the request of such representatives or whenever in the opinion of the Commission and the Minister of Finance such consultation is necessary or desirable. (3) The Commission shall from time to time consult with representatives of appropriate organizations and associations of employees with respect to such terms and conditions of employment as come within the exclusive jurisdiction of the Commission under this Act and the regulations, at the request of such representatives or whenever in the opinion of the Commission such consultation is necessary or desirable.34

In addition, a subsection was added to Clause 10 to compensate for the exclusion of the Commission from direct participation in consultations on remuneration under Clause 7. Clause 10 deals with the Commission's responsibility for making recommendations on pay and the added subsection states: (3) Prior to formulating any recommendations under this section the Commission shall from time to time as may be necessary consult with representatives of appropriate organizations and associations of employees with respect to the matters specified in this section.35 34. Can. H. of C., "Bill C-71," Special Committee on the Civil Service Act, Fourth Session, Twenty-fourth Parliament, Minutes of Proceedings and Evidence, No. 23, p. 525-6. (My italics.) 35. Ibid., p. 526.

163

THE ROLE OF THE CIVIL SERVICE COMMISSION

The bill was reported out of special committee on June 26 and was referred to the Committee of the Whole House before final reading. It did not, however, receive the speedy passage that had been planned for it because Parliament was diverted, for a time, by other, more dramatic events.36 When Parliament adjourned on July 13 for a summer recess, the major part of the bill was left in abeyance, but there seemed little doubt that, barring a dissolution, it would be passed when the Houses were reconvened. An interesting aspect of the whole problem is the question whether it is possible, or even desirable, to legislate staff relations. It will be recalled that the Heeney Report argued against the notion of embodying detailed provisions on staff relations in legislative form. The point was also made by one of the Government's spokesmen in the debate on the bill: "As I see it, sir, parliament is embarking upon a totally new adventure in the field of employer-employee relations, and my own view is that the techniques, like freedom, ought to broaden down from precedent to precedent. ... What this bill does is to provide a framework within which procedures and techniques of consultation may develop and expand. ... Responsible, temperate, accountable stewardship will lead to constructive results in the application of Clause 7. Good will and cordiality will achieve what immoderation of language and action would simply throw away."37

The argument is a weighty one and it is given added force by the experience of the British civil service. The elaborate procedures of consultation, negotiation and 36. Reference here is to the Senate's refusal to withdraw an amendment to a tariff bill, and to the debate on the "Coyne affair." 37. Can. H. of C. Debates, March 10, 1961, p. 2868.

164

REVISION OF THE CIVIL SERVICE ACT

arbitration in the United Kingdom came into being without any covering legislation. They developed pragmatically and were, in most cases, given formal effect by Treasury Orders. One might therefore say about the Canadian situation that, given good faith between the parties, the Government already possesses all the authority it requires to set up negotiation and arbitration machinery by administrative action. Without good faith, to be sure, it is doubtful whether any amount of legislation could produce a satisfactory system of staff relations. Nearly all of the staff associations appreciate the strength of the argument but are insistent, nevertheless, on a clear statutory provision which recognizes a right to negotiate on salaries and working conditions. Two reasons for this attitude suggest themselves. The first is tactical. The bill before Parliament contains clauses on staff relations; the associations, naturally, would like these to go as far as possible in meeting their claims. The second reason is essentially psychological. There is still a strong element of scepticism about the Government's intentions, and this reinforces the feeling that without express legislation the evolution of an acceptable policy would be subject to interminable delay. Some of the staff's representatives probably remember how, in 1928, they were persuaded that legislation to set up joint councils was unnecessary because a sympathetic Government had the power to establish them by Order in Council. Sixteen years were to elapse before the appropriate Order was passed and implemented." 38. See pp. 60ff.

165

THE ROLE OF THE CIVIL SERVICE COMMISSION

The difficulty with the new bill is that it says either too little or too much. If specific legislation to establish the rights of negotiation and arbitration is thought to be necessary—and most civil servants seem to think that it is—then the recognition of a right to consult is hardly significant. Consultation has taken place in the past; the bill merely makes it mandatory and more systematic. If, on the other hand, it is felt that procedures should be allowed to develop without specific legislation, both because the requisite authority to introduce them exists already and because the ingredient of good faith cannot be legislated, there is the danger that the deliberate statutory reference to consultation might inhibit this process. For, if a government should wish to resist the claims for negotiating machinery, it could defend and rationalize its position by invoking the will of Parliament as it is embodied in the wording of the Civil Service Act. The word consult thus threatens to become a strait jacket."

39. Some Members of Parliament argued that there was no substantive difference in the meanings of "consultation" and "negotiation". It is clear, however, that the government recognized such a difference. Addressing the special committee on Bill C-71, the Minister of Finance said: There has been discussion, of which I am well aware, about the precise meaning of this word consultation. As I am sure a good many members of this committee have done, I have looked at the dictionary to see if there was some word which would better fit what is in mind in this regard. Frankly, apart from going into a field that I think would be premature and rigid at this time, and until there has been more experience in this field, I think that we cannot choose a better word for this legislative purpose than the word consultation. Proceedings of the special committee, op. cit., p. 538.

166

Chapter VII PROBLEMS AND PROSPECTS Several important aspects of the problem of staff relations in the federal civil service remain to be explored. They have been touched upon briefly in our description of past experience, but they deserve special attention for their likely significance in the future. It may be appropriate, therefore, to examine them in the context of some assumptions about developments to come. In making these assumptions we pretend neither to make predictions nor to plead the cause of a particular policy. They are to serve, essentially, as an analytical device for bringing current problems into sharper focus. The assumptions are, nevertheless, plausible ones. It is not unrealistic to suppose that the Government will bend to the growing pressures of the staff associations for more direct negotiations backed by a process of arbitration. The precise form of the procedures that will evolve is unpredictable and, for our present purpose, irrelevant. We will only assume that negotiations will be bilateral and that a failure to reach agreement will be resolved by machinery which is acceptable to both sides. With this as a point of departure, it is possible to highlight some major difficulties in the present situation and consider how they might be dealt with realistically. 167

PROBLEMS AND PROSPECTS

If some form of more direct negotiations is to be contemplated, a first question must be: who negotiates with whom? In private labour relations the issue is clear cut. Representatives of management meet with the representatives of the unions. Each of the sides represented can make authoritative and binding commitments through their representatives; the relationship between them is truly bilateral. Under certain conditions a third party may intervene in the role of mediator or conciliator, but he in no way detracts from the power and responsibility of the two sides to reach an agreed conclusion. This kind of employer-employee relationship is well established in the public service of the United Kingdom where negotiations between civil servants and the Government are highly developed. The staff associations deal directly with the Treasury on matters of salaries and conditions of work—"the role of the employer is taken by the Treasury."' If the matter concerns a single department, it is "negotiated by that Department with a departmentally recognized association."2 A necessary distinction between the British practice and private labour relations is that the former is carried on in the framework of Cabinet responsibility and is subject to the overriding authority of Parliament. This is largely a formal, constitutional distinction rather than a functional one. The essential conditions for effective bilateral staff relations are lacking in the Canadian federal civil service at the present time. The main problems are a division and overlapping of responsibility and authority on 1. H. M. Treasury, Stall Relations in the Civil Service, p. 4. 2. Ibid.

168

WHO REPRESENTS THE GOVERNMENT?

the Official Side, and a multiplicity and redundancy of organizations on the Staff Side. Who Represents the Government? Under the Civil Service Act, 1918, responsibility for the central direction and control of the civil service is divided between the Civil Service Commission and the Governor in Council. The Commission is charged with the administration of the merit principle in recruitment and promotion, and with the detailed operation of the classification system. To perform this function impartially and to be free from political interference, the Commission has an independent status, its sole responsibility being to Parliament. In addition to this technical task which the Commission discharges efficiently, it has important responsibilities with regard to departmental organization and rates of compensation. These, however, are subject to the authority of the Governor in Council who, under the Financial Administration Act, Section 7(c), is represented in this area by the Treasury Board. Thus, Section 11 of the Civil Service Act, 1918, states: (I) The Commission shall from time to time, as may be necessary, recommend rates of compensation for any new classes that may be established hereunder, and may propose changes in the rates of compensation for existing classes ... (3) Proposed rates of compensation shall become operative only upon their approval by the Governor in Council, and, where any increased expenditure will result therefrom, when Parliament has provided the money required for such increased expenditure.3 3. Rev. Stat. Can., 1952, C. 48, S. 11.

169

PROBLEMS AND PROSPECTS

The division of authority and responsibility between the Civil Service Commission and Treasury Board was thoroughly examined by the Royal Commission on Administrative Classifications in the Public Service, 1946 (hereinafter referred to as the Gordon Commission). One of its most important conclusions was: This division of duties is the outstanding weakness in the central direction and control of the service and must be eliminated. Central financial control there must be. Otherwise, there will be uneconomical use of public money. Financial control without the direct and simultaneous duty to determine requirements and to provide the necessary means for effective operation leads to delay, frustration and inefficiency.4

There is no need to go over the ground that was covered so well by the Gordon Commission, but the implications of this problem for staff relations should not be overlooked. We have seen that, during the 1930's, Treasury Board assumed increasing authority and control over questions of organization and pay in the public service. It did not, however, create the necessary administrative machinery to translate this authority into concrete and detailed measures. This remained the task of the Civil Service Commission. Thus, if the Commission took the initiative in recommending adjustments in pay or organization, it was expected to work out its proposals in detail and also to indicate the total costs involved. Treasury Board was not equipped to evaluate the details, but tended to react to the recommendations in terms of general financial policy. Nothing in the Act 4. Canada, Report of the Royal Commission on Administrative Classifications in the Public Service (Ottawa 1946), p. 17.

170

WHO REPRESENTS THE GOVERNMENT?

precluded Treasury Board, either on its own initiative or on the instructions of the Government, from asking the Commission to recommend in detail either a revision of establishments or of salary scales, or both. The Commission's recommendations, in such cases, would still have been submitted to Treasury Board for final approval. It should be noted, too, that although the Commission is responsible to Parliament, its substantive recommendations are made to the Governor in Council and treated as confidential. The administrative awkwardness of this procedure is self evident, and it was effectively criticized by the Gordon Commission. The situation which it implies would have been serious indeed if the somewhat artificial division of functions between the independent Commission and the politically responsible Treasury Board had been rigidly maintained in practice. There is evidence, however, that informal practices had grown up which circumvented some of the administrative difficulties, although, as we shall see, they pose problems for the development of negotiating procedures with the staff groups. An informative paper presented by a senior official of Treasury Board to the Seventh Annual Conference of the Institute of Public Administration of Canada describes some of these practices: One committee is established for each department. It consists of a representative of the Civil Service Commission, the Treasury Board and the department concerned. The Civil Service Commission member is the Chairman. These committees sit throughout August and the early part of September and review completely once a year the establishments of the departments. ... By bringing together the three organi-

171

PROBLEMS AND PROSPECTS

zations round the table it is possible for the responsibilities of the department, the Treasury Board and the Civil Service Commission to be discharged in one motion.5

Thus what was intended by the Civil Service Act to be an initiative of the Commission in consultation with departmental officers has become a subject for regular joint consultation to which Treasury Board is a party. This was a logical response which recognized that Treasury Board, as the centre of financial control, should be privy to the deliberations upon which its decisions must be based. It also precluded the delay and possible friction which could result if the formal separation between the Commission and the Board envisaged by the Act were too strictly maintained.6 There is less clear-cut evidence of prior joint deliberation on questions of compensation, but there are indications that it had taken place informally before 1957. This, too, from a purely administrative point of view, could be justified. The Commission ostensibly accepted as given the principles of civil service salary determination which had been enunciated by the Government from time to time. Its knowledge of the results of recruitment and of personnel turn-over provided a basis for judging whether the pay scales were sufficient to attract and retain persons with the requisite qualifications. Its machinery for collecting and interpreting 5. G. W. Stead, "The Treasury Board of Canada," Proceedings of the Seventh Annual Conference of the Institute of Public Administration of Canada (Toronto 1955), p. 88. 6. It should be noted that the Heeney Report recommends that the organization of the civil service should become the exclusive responsibility of the Government. It still envisages a role for the Commission as a kind of efficiency expert making periodic reports on the purely technical aspects of organization.

172

WHO REPRESENTS THE GOVERNMENT?

data on outside conditions of employment endowed the Commission's recommendations with an aura of expert objectivity. One might assume that if the Commission had been regarded as independent and impartial, and the principles of pay on which it based its recommendations as authoritative, it followed that these recommendations should have been made operative. Constitutional legality required the approval of the Governor in Council or Parliament, but this should have been purely formal. Experience, however, suggests that it was not so simple and straightforward as this in practice. It may have been technically correct to say, in 1949, that "as a matter of fact, the Treasury Board 'rubber stamps' the recommendations of the Civil Service Commission in all except occasional cases."7 But this may have been because the Commission made its recommendations only after it was reasonably certain that they would be accepted. A distinction should be made, in any case, between adjustments in pay which affect only isolated departmental classes or grades and those that apply to a large part of the civil service and involve considerable sums of money. The former are in the nature of technical adjustments which may be proposed by the Commission in consultation with the departments concerned and are normally approved by Treasury Board without much question. Adjustments in the second category, which are much more relevant to the issue of negotiations, are hardly ones in which Treasury Board would be inclined to have itself regarded as a "rubber stamp." 7. Taylor Cole, The Canadian Bureaucracy, p. 31.

173

PROBLEMS AND PROSPECTS

If it is true, as MacGregor Dawson stated in 1954, that "the Commission makes its recommendations, and the Treasury Board can accept or reject, but cannot amend them,"8 it is highly improbable that there should not have been preliminary consultation in the days before the Civil Service Commission regime of 1957. While there is no documentary evidence of such consultation between the Commission and Treasury Board, the suggestion that it did take place was never seriously challenged in the many conversations between the writer and officials of the Commission, the staff associations and Treasury Board. The development of this informal liaison was probably sound administratively and constitutionally, but it cast some doubt on the notion that the Commission was truly autonomous except in the sphere of classification, recruitment, and promotion. It was also highly unsatisfactory from the staff's point of view, since they were entirely excluded from this process of consultation. The Heeney Report is particularly insistent on reasserting the Commission's autonomy as the expert agency on civil service pay and conditions of work. In this regard it fails to recognize and deal with the problems posed by the Gordon Commission. Indeed, it seeks to reinforce the formal division of authority and responsibility which the Gordon Commission found to be incompatible with sound public administration. Thus, on the question of "Compensation and Allowances" the Report emphasizes the Commission's "statutory obligation": 8. R. MacGregor Dawson, The Government of Canada (Toronto: University of Toronto Press, 1954), p. 308.

174

WHO REPRESENTS THE GOVERNMENT?

The present Civil Service Act imposes upon the Commission sole responsibility for making recommendations to Government on the remuneration of all employees in the Civil Service and leaves to Government the authority to make final decisions, subject of course to the will of Parliament in the appropriation of the necessary funds. The fact that the initiative in this vital area is vested by statute in an authority independent of Government is of great importance, particularly from the employees' point of view. We feel it is essential that the Commission should continue in this role, especially if our proposals with regard to employees' participation in the determination of salaries and wages are accepted.9

The assertion that only the Commission is given the responsibility of recommending on remuneration may be questioned. The Civil Service Act, 1918, in Section 11(1), states that the Commission "shall ... recommend rates of compensation for any new classes that may be established hereunder, and may propose changes in the rates of compensation for existing classes." (My emphasis.) There is nothing in the Act that can be construed as denying the Government the authority to deal with matters of pay without a recommendation from the Commission. It may be true that the Government, for technical reasons as well as for reasons of expediency, has relied on the Commission for formal recommendations and that this has become a convention, but it cannot be argued that the 1918 Act limited the Government's authority to develop its pay policies independently. That the Commission was really aware of this possibility become evident in Appendix "A" to the Heeney Report which proposes a draft for a new Civil 9. Personnel Administration in the Public Service, p. 13. (My emphasis.)

175

PROBLEMS AND PROSPECTS

Service Act. Here it substitutes for Section 11(1) of the 1918 Act what amounts to a substantive change: The Commission shall recommend to the Governor in Council the remuneration of all employees and such revision of remuneration as, from time to time, may be necessary: ...to

The Government apparently was not inclined to go so far in divesting itself of all initiative in the field of salary determination. Bill C-71 (which has become the new Civil Service Act) provided an authoritative index of its position on this issue. Clause 10(1) states: The Commission shall keep under review the rates of remuneration to employees and shall whenever it considers it desirable or whenever requested by the Governor in Council make recommendations with regard thereto to the Governor in Council. (My emphasis.)

The Bill also seemed to be quite definite in avoiding the implication that the Commission's recommendations on pay would have to be dealt with on an all-ornothing basis: 11. The Governor in Council, after the Commission has had an opportunity of considering the matter and after considering any recommendations made by the Commission, shall (a) establish rates of pay for each grade; and (b) establish the allowances that may be paid in addition to pay.

Indeed, the only restriction on the Government imposed by Bill C-71 in this area was that its decisions be preceded by a formal recommendation from the Commission. 10. Personnel Administration in the Public Service,

176

p. 40.

WHO REPRESENTS THE GOVERNMENT?

The Heeney Report, to be sure, links its interpretation of the Commission's initiative in salary determination with its proposals for staff relations. While it recognizes the authority of the Government to make final decisions, its notion of the Commission as a quasiarbitral body implies that it expected the Government to approve the Commission's independent recommendations as a matter of mere formality. The events described in the last chapter make it clear that the Government, quite properly, was not prepared to accept this implication. They suggest, too, that it might have been more useful to view the problem of "employee participation" from the perspective of the Gordon Commission of 1946. We return to our original question: Supposing that there is some accommodation to the request of the staff for negotiations, with whom will they negotiate? At present, instead of a simple employer-employee relationship, there is a triangular relationship between Civil Service Commission, Governor in Council, and staff organizations. The associations must make representations both to the Governor in Council and the Civil Service Commission, and the line between these two is not clearly drawn. How can this become a basis for bilateral negotiation? British experience suggests what appears to be a logical and clear-cut answer. Since the real authority in matters involving remuneration is located in Treasury Board, why not designate the Board as the representative of the employer for the purpose of negotiating (consulting or discussing) with representatives of the employees? The difficulty is that the Board lacks both the internal administrative machinery and the technical experience that would be 177

PROBLEMS AND PROSPECTS

necessary if it were to assume the role of negotiator. Effective negotiations depend upon an intimate knowledge of all aspects of staff problems, and this knowledge, in Canada, is centred in the Civil Service Commission. The more one examines the development of organized staff relations in the federal civil service the more evident it becomes that Treasury Board alone should ultimately assume the direct responsibility for dealing with the associations. The staff associations are unanimous in their desire to deal with a single agency on matters of pay and working conditions. The imperatives of financial control and political responsibility require that such an agency be located within the Government. It is both logical and realistic for Treasury Board to perform this function. The Personnel Policy Section of the Board could be expanded into a branch or division similar in structure and function to the Establishments General Branch of the British Treasury. In bringing this about, Treasury Board would have to develop administrative machinery of the kind that is already established in the Civil Service Commission. It may or may not be a simple matter to transfer these functions and personnel from the Commission to the Board. The problem, however, is essentially a technical one. There might be a difficult period of transition whilst the Commission and the Board readjusted to the new definition of their respective functions, but the short-run cost of this should be weighed against the long-run advantages to be expected. One thing is clear from recent experience; neither the Government nor the staff associations are prepared to grant that the Civil Service Commission should have 178

WHO WILL REPRESENT THE STAFF?

the kind of a priori authority in salary matters that can be read into the Heeney Report—the Government because it will not accept even an implied limitation on its financial authority, the associations because they want an opportunity to negotiate with the authority that can make final decisions. There might well be a place for an impartial arbitral tribunal that could be brought into play when negotiations have broken down, but this is a different matter entirely and will be discussed in due course. Who will Represent the Stall?

The question of who negotiates with whom is also pertinent when directed at the staff associations. We have seen that the Government does not have a definite policy for recognizing a particular staff organization as representative of a given group of its employees. Any organized group of civil servants may make representations on behalf of its members. The nearest approach to a status of official recognition is in membership on the Staff Side of the National Joint Council of the Public Service of Canada. It is noteworthy that in the United Kingdom, where the principle of negotiation is fully accepted, there exists also a clear concept of recognition: Those which have a right to negotiate are known as recognized associations; the term has the same significance throughout the sphere of trade union affairs and implies that the association is accepted by the employing authority as a responsible body fully representative of a given category of staff. ... Recognition is a formal act and gives the association certain definite rights—the right to be brought into consultation by the employing authority on proposals

179

PROBLEMS AND PROSPECTS

affecting the category of staff for which the recognition is granted, the right to be a party to any formal agreements made on their conditions of service, and the right to go to arbitration."

If we examine the list of recognized national associations in the United Kingdom, we find that they correspond to general classes or grades that are common to the service as a whole. Manipulative classes such as cleaners, messengers, and paperkeepers are represented by the Civil Service Union; clerical assistants and typists by the Civil Service Alliance; clerical officers and executive officers by the Civil Service Clerical Association and the Society of Civil Servants respectively; scientific and professional classes by the Institution of Professional Civil Servants; legal staff by the Civil Service Legal Society; and the Administrative class by the Association of First Division Civil Servants. British experience thus suggests that the appropriate "bargaining units" for civil service staff relations are broad, horizontal classes of employees performing work of a similar nature. This seems to be logical for an organization as large and complex as a modern civil service. For, while there may be a few issues that can be dealt with by negotiation between the Government and the Staff Side as a whole, most problems have a special relevance to particular classes and are best settled on that level. There is some force to the argument that a single association representing all employees could exert a greater pressure on the employer. But this would seem to carry more weight in the area of private labour relations where bargaining pressures 11. H. M. Treasury, Staff Relations, p. 4.

180

WHO WILL REPRESENT THE STAFF?

may be ultimately transformed into strike action. In a public service, where the staff associations deny themselves the strike weapon, effectiveness of negotiation depends less on the use of threats and more on the good faith of the parties and the coherence of the issues that have to be resolved. This discussion, however, is academic in the context of the present situation in Canada. The great majority of organized civil servants are members of associations that include almost all classes of employees, and the prevailing tendency seems to be towards the principle of "one big union."12 Although the Civil Service Federation and the Civil Service Association of Canada make much of the different principles of organization on which they are based, the difference seems to be more apparent than real. For most of the important questions that require representation before the Government cut across departmental lines, and on such questions the central Federation reserves to itself the right to speak for its departmental affiliates. On the other hand, the constitution of the Civil Service Association provides a degree of autonomy to its sections, groups, local councils, and regions with respect to problems entirely within their purview. There is no doubt that the Association tends to a more centralized form of organization, but this is not the main issue between it and the Federation. The real issue is one of jurisdiction over recruitment. 12. The exceptions are the Professional Institute of the Public Service of Canada, the three associations of postal employees, and the Customs and Excise Officers Association. However, the class character of the latter four is somewhat dissipated in the context of their affiliation with the Civil Service Federation.

181

PROBLEMS AND PROSPECTS

It would be unrealistic to suggest that the present structure of the staff associations be dissolved and reconstituted along horizontal class lines. In the first place, the staff associations and their leaders are too well entrenched to risk the uncertainties of a basic reorganization; the human element remains a stubborn fact of life. In the second place, there would have to be a drastic reordering of the classification system before one could speak of broad, service-wide classes in the Canadian civil service. Since neither of these courses seems to be in prospect for the time being, the problem of recognized bargaining units on the employees' side would have to be resolved on the present basis of staff organization. The Professional Institute, of all the staff groups, presents the least difficulty because it represents a more or less coherent category of employees. It has, indeed, enjoyed considerable success in its consultations with the Government Side on various points of detail with respect to both working conditions and salary scales. This has been due not only to its structure but to the favourable bargaining position of professional and technical personnel. In any event, because of its relatively small membership, the Institute will neither seriously affect nor be affected by changes in negotiating procedures.' 3 The problem is more complex, however, when we consider the staff associations which represent the great majority of organized civil servants. We have already 13. It should be mentioned, however, that in its submission to the parliamentary committee on Bill C-71, the Professional Institute strongly supported the introduction of a system of negotiation and arbitration similar to the one in Great Britain.

182

WHO WILL REPRESENT THE STAFF?

suggested that there are, in fact, only two large associations concerned with the really significant issues of staff relations—the Civil Service Federation of Canada and the Civil Service Association of Canada. Both are open, directly or indirectly, to all civil servants irrespective of department or class, and are therefore competing with each other for membership. If we assume that the Government is prepared to enter into direct negotiations with the associations, it would seem that the problem of recognition becomes more acute. As long as the Government was merely receiving submissions from the various staff groups, there was no need to discriminate among them. But if there is to be a bargaining relationship with a possible provision for arbitration, it becomes necessary to know who the bargaining agents are and whom they represent. The alternatives, then, may be either to recognize only one of the two major groups, or to give them joint recognition. When the Federation, in its brief of August 1957, requested the repeal of section 55 of the Industrial Relations and Disputes Investigation Act, it also implied that it expected to be certified as the "recognized bargaining agent for Federal Government employees." The strong opposition to this suggestion by the Civil Service Association of Ottawa and the Amalgamated Civil Servants of Canada (who had not yet merged) was understandable. They were justifiably averse to being excluded from the process of negotiation since they too were old, established associations and represented a sizable proportion of organized civil servants. A policy of exclusive recognition at the present time would only exacerbate relations among the staff groups. This 183

PROBLEMS AND PROSPECTS

might appear attractive to the employer, but it would complicate rather than simplify the situation from all points of view. Indeed, one would guess that the Federation's brief was presented in somewhat extreme terms in order to goad the Government rather than to prejudice the status of the other associations. There is little doubt that the major groups would accept the principle of joint recognition if only the Government would concede them a degree of collective bargaining. The Joint Action Committee of civil service organizations, which was formed in the spring of 1959 to present a common front on salary matters, represents a movement in this direction. The Committee is still in existence and would undoubtedly adapt itself to a pattern of negotiations based on horizontal groupings of classes, if this were made a condition for the negotiations. Canadian officials concerned with staff relations, who have had occasion to examine the state of affairs in the United Kingdom, are usually impressed with the friendly and informal relationship that exists between the leaders of the Staff Side and the Official Side. They sometimes conclude that the success of consultation and negotiation in Britain is due, in large part, to the maturity and sense of responsibility of those who represent the Staff Side. The implication, of course, is that the absence of such a sense of responsibility in the leadership of staff associations in Canada is a major obstacle to the development of better staff relations. We may even concede, for the sake of argument, that the present leaders of the staff groups lack the maturity and reasonableness of their counterparts in Britain. But it would be unrealistic to insist on evidence of greater responsibility as a pre-condition of wider con184

A ROLE FOR THE NATIONAL JOINT COUNCIL

sultation. It is a misreading of the British experience to infer that the development of the consultative machinery was contingent on the emergence of a responsible staff leadership. One might just as well infer the converse. In fact, what did take place was a reciprocal process--the staff associations gaining in maturity and sense of responsibility as the Official Side demonstrated its flexibility and good faith. A Role for the National Joint Council It may be that the Government, in developing its policies on staff relations, will be reluctant to make a radical departure from its present position without passing through a transitional stage. Significant innovations are often easier to realize by gradually transforming existing institutions and procedures than by devising entirely new ones. The possible value of the National Joint Council of the Public Service of Canada as a vehicle for such a transition should, therefore, not be overlooked. The fact that this possibility is discussed here should not, however, be construed as a judgment of its adequacy. We must begin by assuming two conditions. The first is that the Joint Council would be permitted to broaden its terms of reference and be given freer scope in determining its procedures. The second is that the problem of staff-side representation—there are eleven groups identified with the Civil Service Federation out of the thirteen represented—would be settled equitably. An obvious first step that would have to be taken if the Council were to provide a framework for wider 185

PROBLEMS AND PROSPECTS

negotiation would be to eliminate the artificial exclusion of salary questions from its deliberations. Section 6 (ii) of the Council's constitution, which authorizes it to make recommendations on the "general principles governing conditions of employment . . . including among other conditions . . . regular and overtime remuneration," can be re-interpreted and amplified. Once the principle of joint consultation on salaries is granted it should be possible for the Council to devise procedures for the periodic and systematic review of salary scales, both for the service as a whole and for particular classes and grades. Indeed, the framework provided by the Council might be able to overcome some of the difficulties posed by the all-inclusive membership structure of the staff associations. A series of subcommittees could thus be set up, each of which would correspond to a number of classes and grades with more or less common characteristics and problems. One such subcommittee, for example, could deal with the lower clerical classes; another with the higher clerical and executive classes; and still another with semi-technical categories such as draftsmen and maintenance supervisors." To be sure, the present classification system does not easily lend itself to this kind of horizontal stratification; but, if such a plan could be put into even partial operation, it might, in addition to providing logical units for negotiation, set in motion a much needed simplification of the classification system itself.

14. In setting up such subcommittees, it might be useful to establish a division between the management side and the staff side. The British approach of drawing such a line in terms of a salary level suggests a possible course of action.

186

A ROLE FOR THE NATIONAL JOINT COUNCIL

Assuming that the Joint Council could agree on the general machinery of consultation on salaries, there would still be the question of effective procedures. We have seen that the tendency of the Council to become involved in lengthy deliberations is regarded as one of its principle weaknesses. Clearly, if the pattern of postponement and delay were to become a feature of consultation on salary issues, it would only serve to aggravate the situation. The Council would therefore have to find a way to expedite this process. A possible device might be to require the subcommittees to report at a given time each year so that the Council might, in turn, make an annual (or biennial) recommendation on salaries to the Governor in Council. A necessary presumption is that the recommendations resulting from this procedure would in fact be made operative by the Government with the least possible delay. This should not seem impossible since negotiations in the subcommittees would involve representatives of the interested staff associations on one side and Government representatives including, inevitably, high officials of Treasury Board on the other. It is a reasonable assumption that concurrence of the Government Side in the report of the subcommittees and the recommendations of the Council presupposes the advance agreement of Cabinet and Treasury Board in the stand taken by the Official Side.°

15. If such a procedure were adopted it could also provide a test for the Civil Service Commission as one of the bargaining agents for the Government during a period of transition. The Commission has always been on the Official Side of the Council and could remain there until, and if, a basic revision of the Commission's functions were carried out.

187

PROBLEMS AND PROSPECTS

This discussion of a possible role for the National Joint Council is highly conjectural. The writer's own view is that if a transitional mechanism is deemed expedient it would be better to devise something less awkward than the Joint Council. Resolution of deadlocks A pertinent question at this point, and one which is fundamental to the whole question of staff relations in a public service is: what if the Government and the staff associations fail to reach agreement on these various levels of consultation and negotiation? Whether the framework of the Joint Council is to be used, or whether more direct negotiations between the Government and the associations are contemplated, the problem of resolving deadlocks will have to be faced. Although the staff organizations are prepared to give an undertaking that they will not resort to strike action in order to enforce their demands, they are not inclined to leave the ultimate decisions affecting their conditions of work to the unilateral discretion of the Government. What they seek is some form of arbitration to determine issues that cannot be settled otherwise. It would be shortsighted to delay indefinitely a decision on this question on the grounds that the staff will not, in any event, act irresponsibly. Experience suggests that strike action, as a desperate possibility, cannot be ruled out. The debates in the House of Commons during the second half of June 1924, provide interesting reading on this point. At that time, a strike situation involving postal employees provoked sharp debates which were very revealing. Al188

RESOLUTION OF DEADLOCKS

though the strike itself was a failure, there is no doubt that the mere threat of a strike stimulated an attempt at real negotiations between the Government and the Civil Service Commission on one side, and the Dominion Federation of Postal Employees on the other. The Government, at one stage, passed an Order in Council requesting the Civil Service Commission to consider revisions of postal salaries before those of other civil servants.16 When the Leader of the Opposition pressed the acting Postmaster General on the Government's attitude towards the threatened strike, he received this reply: I do not think this is the place to commit ourselves in face of the difficulties which confront us; but it seems to me, that policemen and civil servants are in a different category altogether from people engaged in industrial disputes; they are servants of the Crown. It is rather a serious thing for these men to resort to a strike. On the other hand, one cannot say that they should be denied the right to protect themselves.17

A recent provincial case also suggests that the threat of a strike can produce a response which months of discussion cannot.'8 16. A member of the House of Commons asked the acting Postmaster General at one stage: "Why was it the government desired the commission to take up the postal employees' salaries first? Was it on account of the threatened strike?" He replied: "Naturally that was part of the reason." Can. H. of C. Debates, June 6, 1924, p. 2884. 17. Ibid. 18. This reference is to the threatened strike of provincial civil servants in British Columbia in July 1957. The strike was averted when the government offered an immediate increase in salaries and agreed with the staff association to the setting up of a Board of Reference whose recommendations on future negotiating procedures would be accepted by both sides. See Chap. XI.

189

PROBLEMS AND PROSPECTS

To argue that some form of compulsory arbitration in civil service staff relations is justifiable is not to overlook the difficulties inherent in the process.° The former Prime Minister was correct in asserting that arbitration was not a normal practice in industrial relations, and that "in our country arbitration is accepted, even in real emergencies, only with the greatest reluctance."2° It is true that, in an area where there is unrestricted collective bargainning, the introduction of compulsory arbitration would tend to inhibit negotiations in good faith. Arbitration, however, seems to offer the only alternative to unilateral determination when strike action is precluded. The real issue, it would seem, is to devise the kind of arbitration machinery which would best serve the interests of the public service. The experience of the British civil service under the Civil Service National Whitley Council Arbitration Agreement of 1925 should be studied very closely in this connection. It suggests that the arbitration process need not be excessively rigid and that it can be adapted to satisfy the claims of the staff while remaining consistent with the constitutional responsibility of the Government. Difficulties may continue to arise, but they are not insurmountable.2' While a detailed study of arbitration problems and procedures is beyond our present purpose, there are a 19. For a discussion of the general problems posed by the availability of compulsory arbitration in the staff relations of municipalities, see S. J. Frankel and R. C. Pratt, Municipal Labour Relations in Canada (Montreal 1954), Chap. IV. 20. Address to the Professional Institute of the Civil Service of Canada, reported in The Civil Service Review, XXX (March 1957), 12. 21. See S. J. Frankel, "Arbitration in the British Civil Service," Public Administration (London), XXXVIII (Autumn 1960), 197-212.

190

RESOLUTION OF DEADLOCKS

number of points relevant to the Canadian situation worth discussing. In February 1956, a member of the Opposition (the present Prime Minister) questioned Prime Minister St. Laurent about a submission by a staff association asking for the arbitration of its request for a salary increase. The Prime Minister replied that the Civil Service Act did not provide for such procedures and that civil servants were clearly excluded from the application of the Industrial Relations and Disputes Investigation Act: The Prime Minister expressed his view that this full-time tribunal [the Civil Service Commission] established by parliament and assisted by a large and expert staff, is far better able to give proper consideration to matters of this kind than would some ad hoc conciliation board as proposed by the brotherhood.22

A similar viewpoint was expressed again by Mr. St. Laurent in his address before the Professional Institute of the Civil Service of Canada on February 23, 1957." It seems obvious from our examination of the role of the Civil Service Commission and its relationship to Treasury Board that the Commission cannot be regarded as an adequate substitute for an arbitration tribunal. The Government may have good reason for resisting the introduction of arbitration machinery; but to argue that such machinery is unnecessary because the Commission, as a "full-time tribunal" is better able to fulfill this function, is to miss the essence of the problem. The Commission is not considered by the staff associations to be an independent and impartial tribunal; nor can it, under the present Act, make 22. Can. H. of C. Debates, February 2, 1956, p. 629. 23. Reported in Civil Service Review, XXX (March 1957).

191

PROBLEMS AND PROSPECTS

public recommendations which would be accepted by the Government as binding. The development of new procedures for negotiation and arbitration in civil service staff relations does not necessarily imply that civil servants should be brought under the authority of the Industrial Relations and Disputes Investigation Act. Some officials have expressed concern that if this were to happen, the Government, through the Department of Labour, would find itself mediating in disputes to which it was itself a party. This is not a serious matter since special provision for the civil service could be made by direct administrative action or by special legislation. If an arbitration tribunal were decided upon, it might be set up on a permanent basis and its personnel drawn from a panel of names agreed upon by both sides. There are undoubtedly many technical details of this sort which could be worked out by consultation so long as there were agreement on the generality. Arbitration, however, is not a substitute for negotiation. It is an axiom in the field of employer-employee relations that the way in which an agreement or decision is reached is as important as the substance of the final arrangements. Experience with compulsory arbitration suggests that it sometimes restricts the process of direct negotiation to the detriment of staff relations in general. One would hope that if some form of arbitration were devised for the Canadian civil service, it would have the effect of improving negotiating procedures. Indeed, a measure of its success might well be the infrequency of its use. It is conceivable that the availability of arbitration would act as a pressure on the deliberations of the Joint Council and thus speed 192

PRINCIPLES OF PAY

agreement. It could also lend an air of urgency to representations made by the staff associations to the Government, and this would make for a more satisfactory relationship between them. British experience in this area could provide some useful direction. For example, the Civil Service Arbitration Tribunal, if it feels that the parties have not exhausted the possibilities of negotiation, may advise them "to go away and negotiate further."24 Similarly, as the Tomlin Commission argued in 1931, "the power to conciliate is inherent in every tribunal."25 To be sure, to allow an arbitration tribunal such a degree of discretion implies a great measure of confidence in its competence and impartiality. This underlines both the importance and difficulty of finding suitable arbitrators. The success of any experiment with arbitration may well depend on it. Principles of Pay A final consideration in this chapter refers to the question of appropriate criteria for negotiations and arbitration. This is particularly relevant to the problem of salary determination, which is, after all, the main issue between the Government and the staff groups. The need for such standards or principles of pay arises from the peculiar noneconomic status of the civil service. Civil servants do not confront their Government employer in the framework of a competitive market in which the area of bargaining is defined by calculations of profit and loss. One might argue that 24. H. M. Treasury Staff Relations, p. 22. 25. Report of the Royal Commission on the Civil Service, 1929.1931, Cmd. 3909 (London 1931), p. 147.

193

PROBLEMS AND PROSPECTS

"the only theoretical limit which could be set in the long run on the wages and working conditions of civil servants is the taxation capacity of the particular government involved."26 It is clear that a set of practical and mutually acceptable principles of pay and working conditions would provide both a useful basis for negotiation and a frame of reference in the case of arbitration. Indeed, it is difficult to see how there can be a regularized relationship between the Government and the staff associations without such criteria. It would seem that the principles of pay enunciated by Prime Minister St. Laurent in December 1950 remain substantially unchanged. He declared two main principles. The first was that salaries "should be sufficient to attract to, and retain in, the civil service persons of the right type and necessary qualifications." The second was that "salaries for each class of work should be generally in line with those paid for comparable work by good private employers." The staff associations have apparently accepted these as fair principles, although they have at times questioned their application. There are, nevertheless, a number of objections that can be raised. The principles of recruitment/retention and fair comparison which are currently applied in the Canadian civil service are similar to those put forward by the British Royal Commission on the Civil Service, 1929-1931, (the Tomlin Commission). Paragraph 307 of its report connects the two principles: "If there is 26. W. R. Dymond, "The Role of the Union in the Public Service as opposed to its Role in Private Business," Proceedings of the Fifth Annual Conference of the Institute of Public Administration of Canada (Toronto 1954), p. 62.

194

PRINCIPLES OF PAY

such a fair relativity ... between the class of civil Servants under review and comparable outside rates, it may be assumed that a satisfactory staff will be recruited and retained."27 The same paragraph contains the qualification that the principle of recruitment/retention "does not necessarily provide a basis on which to form an immediate judgment as to the appropriateness of a particular rate of remuneration."28 The Royal Commission on the Civil Service, 1953-1955 (the Priestley Commission), however, argues against the implication that these two principles are reciprocally related and insists on a single primary principle, that of fair comparison. The argument of the Priestley Commission deserves to be quoted at length: We believe that the State is under a categorical obligation to remunerate its employees fairly, and that any statement of end which does not explicitly recognize this is not adequate. It may be held that if rates of pay are such as to recruit and retain an efficient staff they must be fair or even that this is what is meant by calling them fair. We do not agree. Such a contention seems to us neither capable of logical demonstration nor to be supported by contemporary facts. We believe that it is true in a general way that if rates of pay for the Civil Service are what we should call fair they will probably, over a period of time and in most classes, enable the Service to recruit and retain an efficient staff, though in conditions of near-full employment all or most employers are likely to be conscious of a recurring, if not a chronic, shortage of labour. The converse of this cannot, however, be logically inferred. The proposition that the Civil Service is recruiting and retaining an efficient staff 27.Cmd 3909, op. cit., p. 83.

28.Ibid.

195

PROBLEMS AND PROSPECTS

does not necessarily prove the proposition that the rates of pay are fair.29 The Report then suggests a number of factors in support of its argument.3° First, that financial considerations are not the only, "or even always the principal, incentive which attracts recruits to the Civil Service" but that civil service employment appeals strongly to a "sense of vocation". Secondly, that wastage is not "a reliable indicator of the fairness or unfairness of rates of pay." The Commission makes the point that the "validity of the wastage test must be affected by outside demand for particular skills." Thus the greater turnover of technical personnel than of administrative officials whose skills are not so marketable is not necessarily a proof that the rates of the former are less fair than those of the latter. Thirdly, it is dangerous to assume that things are in a healthy state because civil servants seem to be doing their jobs efficiently. "The process of deterioration arising from a sense of grievance on the part of the staff may be a very slow one, . by the time the tendency manifests itself irreparable damage may have been done." The Commission concludes that the end served by principles of pay should be "the maintenance of a Civil Service recognized as efficient and staffed by members whose remuneration and conditions of service are thought fair both by themselves and the community they serve." It is rather surprising that the Heeney Report seems neither to take into account nor to be influenced by the 29. Report of the Royal Commission on the Civil Service, 1953-1955, Cmd. 9613 (London 1955), p. 23. SO. All the quotations in this paragraph are from pp. 23-24 of Cmd. 9613.

196

PRINCIPLES OF PAY

argument of the Priestley Commission. Not satisfied with a verbal declaration of principles of pay, the Heeney Report recommends that they be given statutory expression in a revised Civil Service Act. The Commission, in recommending remuneration in the civil service, shall be governed by the following principles: (a) Remuneration shall be such as to attract to and retain in the Service a sufficient number of properly qualified persons ... (b) Remuneration, so far as possible and with full consideration for all relevant factors, shall be equivalent to that paid by good private employers for comparable work. (c) Remuneration shall be such as to maintain appropriate relationships between levels of compensation ... (d) Rates of compensation ... shall be fair and reasonable in relation to the qualifications required ...31

Essentially, this is a restatement of the primary principles of recruitment retention and fair comparison amplified by the somewhat self-evident secondary principles of internal relativities and fair compensation. One may wonder about the wisdom of enclosing criteria of salary determination within the rigid framework of a statute. It would seem that this is an area in which there should be room for flexible adaptation. But even if we grant the usefulness of a statutory statement of principle it would, perhaps, be better to keep it simple than to elaborate it in detail.32 31. Personnel Administration in the Public Service, op. cit., Appendix A, p. 40. 32. Bill C-7I did not go as far as the Heeney Report in spelling out principles of pay, but it covered the same ground in more general language and is open to similar objections. 10(2) The Commission in making recommendations on remuneration shall consider the requirements of the civil service, and shall also take into account the rates of pay and other terms and conditions of em-

197

PROBLEMS AND PROSPECTS

The argument for the single principle of fair comparison seems to have particular validity in the Canadian situation. If the Priestley Commission is correct in denying a necessary reciprocal relationship between recruitment !retention and fair comparison, there is the danger that if such a relationship is assumed, one of these principles will distort the application of the other. For example, it is much more difficult to amass and interpret the data on wages paid by good private employers for comparable work than it is to judge statistics on the turnover of staff. The normal human inclination must be to opt for the simpler method if it is considered to be the reciprocal of the more complex. This is the principle of "Occam's razor." The staff associations have frequently complained that their carefully prepared briefs which present comparative data on salaries are often treated cavalierly. They have also expressed the feeling that recommendations on salaries made by the Civil Service Commission on the basis of wage and job comparisons are evaluated by Treasury Board in terms of its estimate of their effect on the recruitment and retention of staff. The problem would be less serious from the staff's point of view if there were more effective negotiations with the Government on salary matters. Both sides would then find themselves under the necessity of supporting their claims on the basis of standards which are accepted as fair and reasonable. The case for the single criterion of fair comparison ployment prevailing in Canada for similar work outside the civil service, the relationship of the duties of the various classes within the civil service and any other considerations that the Commission considers to be in the public interest.

198

PRINCIPLES OF PAY

becomes even stronger if the introduction of arbitration procedures is contemplated. The Priestley Commission also considered methods of applying the principle of fair comparison. "We must stress that, unless methods can be devised which will commend themselves as fair to staff representatives and which can be effectively used, we doubt if the principle will be more than an empty formula."" We have seen that a beginning has been made in Canada in setting up the kind of fact-finding machinery which could make for effective application of the fair comparison standard. The Bureau of Pay Research, which was established in September 1957, is still developing. There may be some question about the Bureau's location in the Civil Service Commission so long as the Commission continues to make confidential recommendations to the Governor in Council. Time and experience, however, have a way of overcoming technical difficulties of this sort, provided that there is a flexibility of attitude. It has been suggested in this chapter that if the further development of staff relations were in the direction of more realistic negotiations there would be a number of difficult problems to overcome. The question of who negotiates with whom may be directed, with the same force, at both the Government and the associations. The former would have to clarify the relationship between the Civil Service Commission and Treasury Board; the latter would have to settle their jurisdictional differences and face the problem of pro-

33. Report of Royal Commission, Cmd. 9613, p. 35.

199

PROBLEMS AND PROSPECTS

viding logical bargaining units. If negotiations fail to produce agreements, there might have to be some form of arbitration. Arbitration, however, is not a simple process for resolving disputes and, unless it is carefully contrived, may limit the effectiveness of negotiation. Finally, in the absence of normal economic forces to delimit the area of negotiation and arbitration, it would be useful to have agreement on some clear and unambiguous principle of remuneration. It may still be arguable that the staff organizations lack sufficient bargaining power to exact the procedures of staff relations that they favour. Thus, in the context of practical politics, the case for the status quo may seem particularly attractive to the Government. It would be shortsighted, however, not to anticipate the pressures for change and not to plan accordingly. A society that recognizes the principle of trade unionism in private employment cannot resist indefinitely the claims of its growing body of public servants for a modified application of this principle to the public service.

200

PART II THE PROVINCES

INTRODUCTION To pass from an examination of employer-employee relationships in the federal civil service to the study of provincial experience in this area is not necessarily to move from a more complex, or more mature situation, to one that is simpler and less developed. The point has already been made, perhaps with unnecessary frequency, that there are no clear and simple criteria for measuring or judging the scale of trade unionism in a civil service context. If there is a standard that seems reasonable it is the pragmatic one of effectiveness. But the judgment of effectiveness is too often contingent on subjective factors. What may be seen as effective from the staff's point of view may be regarded quite differently by the Government. The views of an outsider may differ from those of both. It is, however, possible to assert that the effectiveness of staff relations depends neither on length of experience nor elaborateness of procedures. Long experience, depending on its nature, may help or hinder the development of satisfactory relationships. Simple procedures are frequently much more effective than complicated ones. There is little doubt that the development of staff relationships on the federal level provides a useful source of experience which may be drawn on by provincial Governments and their staff associations. Each side may seize upon some aspect of a federal policy on which to base its claims or justify its position. But the experience of the central Government cannot be regarded as in any way limiting that of the provinces in this sphere. If some provincial jurisdictions have adopted some of the procedures developed by the federal civil service they have also devised their own 203

INTRODUCTION

machinery for dealing with staff associations which might be examined with profit by the federal Government. Provincial ministers have shown themselves to be as adept as their federal counterparts in resorting to the notion of sovereignty as an argument against some of the staff claims. Staff associations, on the other hand, tend to be impressed by this argument in inverse proportion to their strength and experience. It seems to me that the state-as-sovereign-employer theory has no more relevance on the provincial level than it has on the federal. This section of the study will attempt, primarily, to describe the development of formal and informal relationships between provincial Governments and the organizations of their civil servants. The focus will be on what is usually called labour relations in private industry. Again, it must be stressed that our main concern is with the employees of government departments and not public servants in the wider sense of employees of public boards, crown corporations, public utilities, or schools. We will not deal with specifics such as actual pay scales, superannuation arrangements, classification schedules. These are to a great degree the end products of labour relations. Nor will we delve into the internal structure of the staff groups. The main preoccupation will be with the process whereby civil service associations influence or participate in the making of decisions affecting their conditions of employment. While there is much in the procedures and institutions of provincial staff relations that resembles the federal practice there is also much that is quite different. 204

INTRODUCTION

The first chapter will deal with the unique experience of the province of Saskatchewan. This is the only governmental jurisdiction above the municipal level which accords its civil servants full trade-union rights. The process of collective bargaining which has been in operation since 1945 will be examined in some detail. A second chapter will describe the procedures that have matured in Alberta and now appear to be developing in Manitoba. These procedures, though they fall short of full collective bargaining, seem to reflect a fairly satisfactory relationship between Government and staff. A third chapter will be devoted to the province of Ontario. The largest province has followed the lead of the federal Government most closely and, like the federal Government, is experiencing a growing pressure for more acceptable negotiating arrangements. The final chapter will deal with the tense situation in British Columbia. There the confrontation of a strongwilled Government by a strong and militant staff association has produced hostility and intransigence which finally erupted into strike action by civil servants in March 1959. The experience with staff relations in Quebec and the four Atlantic provinces has been very limited. There are staff associations in all of these provinces; but they are weak in numbers, little respected by their Governments, and quite ineffective. It is possible to give the names of the associations and say something about their activities, but this would hardly justify separate treatment in the present study. The reasons for this underdevelopment can undoubtedly be found in the political and economic context in which these staff groups operate. If a generalization may be ven205

INTRODUCTION

tured, it is that there seems to be a correlation between the absence of a rationalized, patronage-free public service and the ineffectiveness of staff organization. This is not to say that Ontario and the Western provinces are free from such irrationalities in their public services, but that they seem to be further advanced in dealing with these problems. An additional factor which must affect the situation in the Atlantic provinces is their uncertain economy. It is probably difficult to generate support and enthusiasm for collective pressure on governments that are hard put to finance the ordinary operating expenses within their jurisdiction. The governments, in turn, are not amenable to procedures that, in their view, would increase the burdens on an overtaxed exchequer. Of the five Eastern provinces, Nova Scotia and New Brunswick seem to be developing along the lines of Ontario and Manitoba. The associations are passing through a period of growing pains and one may expect that, in due course, they will make some progress in achieving institutions of limited consultation. As for Quebec, Prince Edward Island and Newfoundland, the most that may be said is that there are staff associations whose existence has been more or less taken for granted by their respective governments. There is as yet no discernible pattern of staff relations in these provinces and the associations are little more than weak pressure groups. The change of government in Quebec in June 1960, however, has ushered in an era of dramatic reforms which should also have their effect on the development of staff relations. The first stirrings of a revived staff movement are already in evidence. 206

Chapter VIII SASKATCHEWAN Since the problems of staff relations as they are dealt with in this study presuppose the existence of organizations of civil servants, it may be useful to summarize the early history of the particular associations as we go along. The year 1913 saw the formation of an organization which called itself "The Saskatchewan Civil Service Association (at the Parliament Buildings, Regina)." The Association not only limited its membership to the headquarters' staff but conceived its purposes to be merely social and recreational. The war years were a period of inaction. In 1920, however, the Association reconstituted itself on a province-wide basis and set forth new objectives with respect to the general welfare and working conditions of its members. The intention was to form a single organization of all provincial civil servants regardless of the nature of their work. The period from 1920 to 1944 revealed the pattern of development characteristic of a situation which does not provide for real negotiations between the Government and the staff group. The Association was little more than a pressure group. It made its representations, submitted briefs, sought interviews, and waited for the unilateral decision of the Government. The technique yielded positive results from the Association's point of view, but these were intermittent and 207

SASKATCHEWAN

uncertain. The Association claims some of the credit for the introduction of a superannuation scheme and for the provision of a cost-of-living bonus in 1942. An official review of this period in the organization's history asserts that "frustrating, one-sided, and unfair as it was, it represented a traditional conception of the relationship that must exist between a government and its employees, consistent with the sovereign powers of the government".' A fundamental change in the status and role of the Association began to emerge in 1944. It was not due to factors inherent in the development of the association, but resulted, rather, from a change of government. The Co-operative Commonwealth Federation (C.C.F. party) was elected to office in that year. As a socialist party it was naturally sympathetic towards, as it was partly dependent on, the trade-union movement. There seemed to be no valid reason why government employees, if they wished it, should not be accorded the right of trade-union representation. One of the first consequences of the new Government's attitude was the affiliation of the Saskatchewan Civil Service Association with the Trades and Labour Congress of Canada. It seems that this step was taken as a direct result of the Government's insistence that the association qualify itself as a bona fide trade union if it desired recognition as a representative voice of Saskatchewan civil servants. A charter was issued by the Congress to the Association on September 23, 1944.

I. The Dome (official journal of the S.C.S.A.), April 1959.

208

THE RIGHTS OF TRADE UNIONISM

The Rights of Trade Unionism The decisive event in the history of staff relations in Saskatchewan was the enactment of the Trade Union Act in late 1944.2 Section 2 (6) of the Act defines employers coming under its provisions and adds the phrase "and includes His Majesty in the right of Saskatchewan." It was clearly intended to grant civil service associations the status of trade unions vis-à-vis the Government as an employer. In commenting on this part of the Act, Premier Douglas is reported to have said "No longer will government employee organizations have to come to the government, cap-in-hand, like a schoolboy."3 The Act provided the Saskatchewan Civil Service Association (S.C.S.A.) with the opportunity to seek and receive certification as the bargaining agent for its members. But it also made possible a minor splintering of its membership. Employees of the Department of Telephones and of the three provincial mental hospitals split away to form their own trade unions. They were recognized by the Labour Relation Board as representative of "appropriate bargaining units." The defection of these groups was not serious since they comprised a very small proportion of the civil service. The Department of Telephones has since been transformed into a government corporation and its employees do not come within the scope of the present study. The staffs of the mental hospitals formed three separate locals of the United Civil Servants of Canada which was, at the time, an affiliate of the Canadian 2. Chap. 69, Statutes of Saskatchewan, 1955, (Second Session). 3. The Dome, April 1959, p. 54.

209

SASKATCHEWAN

Congress of Labour. This division of organized civil servants has persisted to the present time. But except for the occasional dispute over jurisdiction it has not been a significant factor in the Saskatchewan experience. The merger of the Trades and Labour Congress and the Canadian Congress of Labour in 1956 brought the Association and the three locals of the United Civil Servants of Canada into the framework of the Canadian Labour Congress. This has made it easier to settle differences among them. The recognition and certification of the Association as the bargaining agent for the great majority of civil servants opened the way for full-scale negotiations in 1945. The first formal collective labour agreement between a Government and its employees was signed in that year. The process of negotiating agreements has continued annually or biennially since then. An interesting feature of the agreements is their multiple nature. Although the Association is a unitary organization representing its membership from a single centre, it has had to take into account the great occupational diversity of the public service. Its negotiating committee thus finds it useful to negotiate a number of separate agreements with the Government. There are at present five such agreements: the Public Service Agreement, the Liquor Board Employees' Agreement, The Workmen's Compensation Board Employees' Agreement, The Public Works Maintenance Time Certificate Employees' Agreement, and one joint agreement covering the Time Certificate Employees of the Department of Highways, the Department of Natural Resources, the Department of Agriculture, and the Municipal Road Assistance Authority. The task of coordinating these 210

THE RIGHTS OF TRADE UNIONISM

negotiations can be quite formidable. It will be examined in some detail in due course. The achievement of trade-union rights had an immediate effect on membership. The Association grew from 1800 members in 1944, to 2500 members in 1945. The first agreement signed with the Government contained a maintenance of membership clause. This declared that any person entering government service in an area for which the Association was the bargaining agent must become a member of the Association as a condition of employment. The membership in June 1959 was 6,035. While the Trade Union Act facilitated the expansion of the Association it also introduced a number of complications. Before 1944, membership was open to all civil servants regardless of rank, and a good proportion of the members were, in fact, senior civil servants. The Act, however, attempted to draw a line between the management and staff sides in labour relations. Section 2 (7) defined employer's agent as one who acts on behalf of an employer either in negotiations or "in respect to hiring or discharging or any of the terms or conditions of employment of the employees of such employer." It was therefore necessary to determine which classifications of the service would be excluded from membership in the staff association. The matter was settled without great difficulty by negotiation. As a general rule of thumb the line is drawn at the branch head level. In order to avoid misunderstanding, however, the excluded classes are specified in the collective bargaining agreement. There is an additional provision that, whenever a new class of positions is created, the question of its inclusion or 211

SASKATCHEWAN

exclusion for bargaining purposes would be the subject of negotiation. The procedure seems to be working well. Bargaining Units A more serious problem from the Association's viewpoint arises from the notion mentioned in Section 5(a), of an "appropriate unit of employees for the purpose of bargaining collectively." The Trade Union Act authorizes the Labour Relations Board to determine what constitutes a bargaining unit and what trade union, if any, should be recognized as its representative. The minor split in the Association that occurred in 1945 was made possible under this provision of the Act, but the issue did not appear to have been a very important one in subsequent years. In 1957, however, the Association was severely shocked by a ruling of the Labour Relations Board. The professional engineers employed by the Government, members of the engineering society, requested the Board to exclude them from the bargaining unit represented by the Association. Despite formal representations by the Association, the Board ruled in favour of the engineers. The implications of this ruling were not lost upon the executive of the Association. There were other professional groups that might also seek to withdraw. Indeed, the point was brought home very sharply in a letter to the executive from the Secretary of the School Superintendent's Branch of the Association. The letter assured the executive that, while the Branch had been interested in the case of the professional engineers, it had no intention of seeking a similar status for 212

BARGAINING UNITS

itself; but there was a hint that the precedent might be used as a lever to extract concessions from the Association: Mr. Chappell stated that the large majority opposed any withdrawal, but felt that the subject was one worthy of further consideration from the point of view of the best type of representation for professional employees within the Association.4 The Provincial Executive sought legal advice as to how it might act to restore its former position. Two alternatives were suggested. One was to appeal the Board's ruling on the engineers to the courts. The other was to seek an amendment to the Trade Union Act which would make it clear that the fact of being a professional employee was not a valid reason for exclusion from an existing bargaining unit. The first course of action was rejected on the grounds of its doubtful effectiveness. Instead, the Executive set about preparing the ground for the presentation of a proposed amendment for the consideration of the Cabinet. There is no need to describe the tactics of the Association in developing its proposal. The draft submitted to the Government requested that Section 5 (a) of the Trade Union Act be amended by adding "provided however that no employee shall be excluded from an appropriate unit of employees for the purpose of bargaining collectively for the sole reason that such employee is a member of the architectural, dental, engineering, medical, legal, nursing, dietetic, pharmaceutical, or other profession entitled to practice in Saskat-

4. Minutes of the Meeting of the Provincial Executive, May 14, 1957.

213

SASKATCHEWAN

chewan and employed in a professional capacity."5 The Government rejected the proposal, but indicated that it would not initiate bargaining procedures with groups that had disaffiliated from existing staff associations. The difficult position of the Association with respect to professional classes was underlined in another instance. In February 1958, the Chairman of the Public Service Commission advised the Association that as a result of a salary survey the Cabinet had approved salary increases for a number of "excluded" classes. These were mainly professional groups for which it was becoming increasingly difficult to recruit or retain personnel. He also informed the. Association that the Government was "willing to open the agreement so that salary adjustments may be made for a small group of classes, largely professional in nature." The Association felt that it had to reject a proposal which implied special treatment for a number of individual classes. It countered with the suggestion that the agreement be opened for all classes represented by the Association or not at all. The Government did not accept the counter proposal and the matter was dropped. But it did not end there. A delegation from a number of Teachers Colleges presented itself at a meeting of the Provincial Executive to protest the decision not to "open the agreement" with respect to their classes. They felt that the "interests of professional employees were submerged in the interests of the whole."6 The ensuing discussion brought about a reconciliation of views, but 5. Minutes of the Meeting of the Provincial Executive, September 9, 1957. 6. Ibid., March 24, 1958.

214

PUBLIC SERVICE ACT

there remained the strong impression that the professional employees were wondering about their status within the Association and would continue to seek a more independent role either inside or outside it. Public Service Act The Public Service Act of Saskatchewan7 deserves particular attention for the way it takes into account the process of collective bargaining. It follows what has become, more or less, the standard pattern in so far as the structure and general functions of a Public or Civil Service Commission are concerned. There are significant qualifications, however, where the role of the Commission approaches an area which is within the scope of negotiations between the Government and the staff associations. The Public Service Commission is composed of three members appointed for staggered six-year terms. Only the chairman is on full time. The Commission administers the merit system, devises the classification plan, makes recommendations on salary scales, and provides machinery for appeals. As is usual in most civil service jurisdictions, substantive provisions which are initiated by the Commission are subject to formal promulgation by the Lieutenant Governor in Council. Section 6 (b) of the Public Service Act declares it a duty of the Commission "to represent the public interest in the improvement of personnel administration in the public service." The details of the Public Service Act, except for those that have a direct bearing on staff relations, need not concern us. Section 8 (2) states: 7. Rev. Stat. Sask., 1953, Chap. 7.

215

SASKATCHEWAN

Before submitting regulations to the Lieutenant Governor in Council the commission may extend to any trade union representing employees in the public service an opportunity to peruse and examine the proposed regulations for the purpose of making any recommendations for changes therein.

Section 14 (1) makes it clear that the classification plan is the prerogative of the Commission and is not subject to negotiation. With respect to pay, Section 15 (1) differentiates between employees in the classified service who come under collective bargaining agreements and those outside their scope. Part IV of the Act deals with appeal procedures in cases of dismissal or demotion. Section 41 provides: A permanent employee who holds a position in the classified service within the scope of a collective bargaining agreement, and who is dismissed or demoted or has any other grievance or complaint, may appeal under such procedures as may be established by the applicable collective bargaining agreement. (My emphasis.)

Finally, Section 59 spells out the full acceptance of collective bargaining: Such member of the Executive Council as may be designated by the Lieutenant Governor in Council for the purpose may, subject to the provisions of this Act with respect to the classification plan, on behalf of the Crown enter into a collective bargaining agreement, within the meaning of The Trade Union Act, with a trade union representing a majority of the employees in any unit of employees in the public service which has been determined under the provisions of the said Act to be an appropriate unit for the purpose of bargaining collectively.

216

PUBLIC SERVICE ACT

The Regulations under the Public Service Acts are also clear in their recognition of the scope of collective bargaining. Thus, Regulation 1.1-(a) states: All employees coming within the scope of any collective bargaining agreement entered into between the Government and any labour organization representing employees in the Public Service, shall be governed and bound by such agreement in all matters therein provided for, and shall be governed and bound by these regulations in all matters not specifically provided for in such collective bargaining agreement."

Regulation 4.1, sub-titled Adoption of Pay Plan, also deserves quotation in full: (a) Pay Ranges At such times as required by the expiry date of collective bargaining agreements, or otherwise, but at least annually, the Chairman, after consultation with permanent heads and fiscal officers of the province, shall prepare tentative pay schedules for all positions in the classified service. (b) Such schedules shall constitute a subject of negotiation between representatives of the Government and representatives of employees of the public service within any collective bargaining unit constituted under the provisions of the Trade Union Act. (c) Such schedule shall apply also to employees who are outside collective bargaining units provided that the Commission shall give due notice in The Saskatchewan Gazette of right to appeal therefrom, shall hear all employees who appeal and may vary or amend the schedule as it deems advisable.

It is evident that the formal provisions for collective bargaining are elaborate and unequivocal. The question now is: How do they work out in practice? In a 8. Gazetted November 16, 1956, under O.C. 2350/56.

217

SASKATCHEWAN

general way the negotiations follow a pattern that is well established in the field of labour relations. Within a specified period before the expiration of the current agreement, either party may indicate the desire to change its terms. There is a series of meetings between a committee of the Provincial Executive of the Association and representatives of the Government. Each side discusses the other's proposals and arguments in an effort to reach an agreement that can be made formal. If a deadlock results the next step is normally a reference of the disputed points to a board of conciliation. The findings or rulings of this board are not binding unless there is a prior undertaking by the parties to accept the award of the conciliation board. Since 1945 agreement has been reached without recourse to conciliation in all but four cases. The results of conciliation in these four cases were satisfactory and led to the signing of agreements. While there has been no instance of a complete breakdown in the negotiations between the Government and staff groups, it seems clear from the wording of the Trade Union Act that the Association(s) could resort to strike action. The Association considers the right to strike to be a fundamental element of its bargaining power, but it also recognizes its public responsibility and does not foresee the use of the strike weapon except in a truly extreme situation. Negotiating Procedure The details of the bargaining process are particularly interesting. On one side is the Association, representing a large number of civil servants spread out over an area of some 250,000 square miles. Problems of size 218

NEGOTIATING PROCEDURE

and distance are further complicated by the classification plan. The Association negotiates for some 550 distinct classes of employees. It must not only consider the claims of each class separately but must seek to coordinate these claims in a way that will not seriously upset the internal relativities among the classes. In addition, there must be some opportunity for branches and individuals to participate in the preliminary stages of preparing the Association's submission. On the other side is the Government, responsible to the legislature, confronted with the task of reconciling the many diverse claims on its limited resources and ever sensitive to the mood of the electorate. The Association approaches the negotiations on two levels. First is the issue of the general wage level and working conditions. The Association must decide whether to ask for a specific percentile or across-theboard adjustment; whether to seek changes in hours of work, holidays, and superannuation benefits. Second is the question of salary adjustments for specific classes. These may be thought necessary to match conditions in comparable outside employment or to revise relativities between classes that are thought to be inequitable. The coordinating centre of the Staff Side is the Provincial Executive and its Negotiating Committee. Proposals of changes in general pay policy and working conditions are channeled to the Executive through the seventeen branches of the Association. The procedure is laid down in Article 11 of its constitution. The Executive Secretary must call on the branches to submit their amendments to the agreement. He must also advise them of the proposals tentatively decided upon by the Executive and invite their comments or reso219

SASKATCHEWAN

lutions. The various proposals both from the branches and the Executive must be placed before a meeting of representatives "of those affected" not later than thirty days before the expiry of the agreement. This meeting does not, however, pass binding resolutions; it merely communicates majority decisions to the Provincial Executive as recommendations only. Constitution Article 11 (c) states that "the Provincial Executive shall take due consideration of them in negotiating the appropriate bargaining agreement on behalf of those affected." There is a separate set of procedures to deal with proposals for adjustments in the salary scales of particular classes. The branches as such do not participate directly. Individual members of groups, however, may make direct representations to the Negotiating Committee for revision in the range of pay of their class, apart from any consideration of a general salary adjustment. The Association justifies this individual approach on the ground that branches have neither the technical experience nor the perspective that is necessary for evaluating the claims of particular classes in terms of their relationship to the service as a whole. The procedures are quite elaborate. Notices are posted throughout the service, and announcements are carried in the monthly journal of the Association soliciting written briefs from individuals and groups who wish to have the relative salary range of their class (or classes) reviewed. After the submission of the briefs a definite time is scheduled for personal interviews between the Negotiating Committee and the individuals or representatives of the groups concerned. The Committee then reports and makes its recommendations to the Provincial Executive which in turn makes the final 220

NEGOTIATING PROCEDURE

decisions on the claim to be presented to the Government. The Association employs a number of devices to discourage irresponsible or ill-considered claims. An editorial in its journal discusses this problem: Whether as individuals or as groups it is extremely important that you realize that you must be able to put up a good case, with supporting argument, for there to be some prospect of success ... your proposal will be given critical appraisal by a representative group of around six persons who comprise the Negotiating Committee. Remember, if they approve your proposals, to them falls the difficult task of trying to sell it across the bargaining table, where it is most certainly going to come in for more critical appraisal from the government side ... A good guide for you to follow is to imagine that you are a member of the Negotiating Committee ; ask yourself whether you would be satisfied to take your case to the bargaining table on the basis of the submission you have prepared ; in other words, be your own severe critic before you submit your claims to the criticism of others. You will have a better brief, a better case all around if you do.9

The Negotiating Committee sits in Regina. Those who wish to appear before the Committee must do so at their own expense or at the expense of the group they represent. This suggests that the headquarters staff enjoys a differential advantage over those in the remoter parts of the province. In the 1958 negotiations the Negotiating Committee received ninety-four briefs pertaining to 130 classes. After it had reviewed these and added its own proposals, it recommended the adjustment of some 350 classes. Before being sent to the Provincial Executive, the recommendations of the 9.

The Dome, April 1958.

221

SASKATCHEWAN

Committee are examined by a twenty-four member Pay Adjustment Advisory Committee which is representative of the broad occupational classifications in the civil service as a whole. The reports of the Negotiating Committee and the Advisory Committee are then transmitted to the Provincial Executive which determines the final policy. It should be noted that the leading members of the Provincial Executive are also members of the Negotiating Committee, and it is this committee which represents the Association at the bargaining table. The foregoing suggests that there is some validity in the claim that a single, centrally directed association of civil servants can provide an organizational structure which is highly appropriate for effective collective bargaining. It offers advantages not only to the civil servants, in that it gives them the strength of numbers, but to the Government as well. If the Government were to negotiate with a number of smaller groups, its advantages in bargaining power might be more than offset by the difficulties of maintaining a more or less consistent relationship between the classes. This is especially true in the context of the classification systems in force in Canada on all levels of civil service jurisdiction. Indeed, the single staff association acts as a buffer between the claims of the myriad classes of the civil service and the Government. It provides for an intermediate level of negotiation. The association acts as a screen which sifts out the various claims and coordinates them on what it considers to be a rational basis. The Government benefits from this arrangement, which not only makes for greater economy and simplicity in the bargaining process but also facilitates budg222

NEGOTIATING PROCEDURE

eting. There may well be a few classes of civil servants that lend themselves more readily to separate treatment —the professional group is a case in point. But this does not detract from the broad generalization. The preliminaries to collective bargaining on the Government Side are somewhat simpler. The Public Service Act provides for the designation of a member of the Cabinet (Executive Council) to enter into a collective bargaining agreement with a staff union. Until now this has been the Premier. However, the effective negotiator for the Government Side is the Chairman of the Public Service Commission. This seems to be a reasonable arrangement since the Chairman possesses the technical knowledge and experience in personnel administration. The fact that the Chairman of the Commission is at the same time the impartial administrator of the merit system raises a fine theoretical point which will be discussed later. As the bargaining agent for the Government, the Chairman of the Commission must act on its instructions. This implies close and continuous liaison with the Cabinet during negotiations. Before formal negotiations begin the Chairman may hold a series of informal prenegotiation discussions with representatives of the Association. He thus gains an advance idea of the scope of the bargaining. The Commission, under its Director of Classification, also attempts to maintain up-to-date wage survey statistics against which it can evaluate the claims of the Association. It is thus possible to make an estimate of probable costs upon which to base the advance deliberations of the Government Side. Throughout this early procedure the Chairman of the Commission is in close con223

SASKATCHEWAN

tact with the Minister of Education through whom he reports to the Cabinet. Since the agreements normally expire on September 30, the formal submission of the Association is usually filed with the Government in August. The Government immediately transmits the staff's brief to the Chairman of the Public Service Commission for a detailed study of all its implications. The Chairman meets with a committee of Deputy Ministers at an early stage. The committee discusses such problems as organization, staff turnover, and recruitment to particular classes. There is no discussion of costs at this level. After the Chairman has had an opportunity to examine all aspects of the situation he reports to the Industrial Relations Committee of the Government. This committee comprises the Chairman of the Commission, the Deputy Provincial Treasurer, and a number of Cabinet ministers who are particularly concerned with the outcome of the negotiations. The Industrial Relations Committee, in turn, reports to the Cabinet. It is the Cabinet which finally tells the Chairman of the Commission how far he may go in bargaining with the association. It should be noted that the Chairman of the Commission plays a key role throughout. His experience in personnel administration and his knowledge of the conditions of service are highly respected, and his recommendations are not treated cavalierly. As a result he is an extremely effective bargaining agent for the Government. One of the problems that arises when a government signs a collective labour agreement with a civil service union is that of budgeting. Under present procedures in Saskatchewan, departmental estimates must be in 224

NEGOTIATING PROCEDURE

the hands of the Budget Bureau by September 30. Since negotiations begin in August, it is improbable that the new contract will be settled in time to be taken into account in the estimates. This means that the estimates go forward without providing for possible increases in salaries. The problem is not very complicated once the legislature is in session, for it can pass supplementary estimates. If the agreement is signed after October 1st but before the opening of the legislative session, however, and if it calls for increased salaries retroactive to October 1st, the Government may find itself without the necessary funds. To some extent the Government attempts to meet this contingency in the framework of the budget. Where possible, it will transfer money from other votes to the salary fund. If that is not possible it may resort to the use of special warrants. In practice, the Government attempts to delay the use of warrants as long as possible so that a minimum of time will elapse between their issue and their approval by the legislature. The "contract" negotiations of 1958 illustrate a number of interesting factors. The previous agreement had been concluded in 1956 for the usual two-year period. The advantages of a two-year contract from the Government's point of view are obvious. The Association, too, thought it would benefit from both the greater stability and the respite from the onerous chore of preparing an annual submission. The experiment apparently did not live up to expectations and the Association now seems determined to keep the contract period to one year. Many employees complained that the time lag in adjusting the pay scales of their classes had worked undue hardship on them. The professional 225

SASKATCHEWAN

groups which had been denied the opportunity to accept the Government's offer to "open the agreement" felt that the problem would not have arisen had the agreement been renegotiated after one year. The twoyear period between agreements also made it likely that a large number of classes would require readjustment, and negotiations would therefore be prolonged. This, in fact, occurred in 1958, when the Association requested adjustments in the rates of 350 classes. Negotiations proceeded very slowly and civil servants became restive. An editorial in Dome sought to appease the Association's membership with an explanation for the slow progress: "A great deal of the delay is occasioned by the volume of material to be considered, particularly in the area of pay adjustments . . . the volume of adjustments has been the greatest ever, due in large part to the two-year agreement."'° By October 29th, after some thirty sessions at the bargaining table, there were still a number of unresolved issues between the Association and the Government, and it was decided to refer them to a conciliation board. The last time that such a reference had been necessary was in 1951. The Conciliation Board was set up in mid-November. As in the earlier cases of conciliation, the nominees of both sides were able to agree on the chairman. The board met for two days in early December to receive briefs from both parties and to hear oral arguments. The case for the Association was presented by its Executive Secretary, that of the Government by the Chairman of the Public Service Commission. The formal report of the Conciliation Board contained this inter10. The Dome, November 1958.

226

NEGOTIATING PROCEDURE

esting comment: "The Board was impressed with the good relationship which appears to exist between the parties and which were apparent during the sittings of the Board. Such a relationship is desirable and it is to be hoped that it will continue."" The majority report of the Board was signed by the Chairman and the nominee of the Government, and it provided the basis for the final settlement. The new agreement was signed on December 23, 1958, and was the culmination of a process that began in May. It was to run for one year. Thus, less than five months after the signing, the process of negotiation had to begin all over again. In its negotiations with the Government, the Association generally prefers an across-the-board approach with some leeway for minor internal adjustments. This, however, cannot always be achieved. In 1960, due to declining provincial revenues, the Government refused to entertain a general claim, and negotiations had to take place on the basis of class-by-class comparisons with outside rates. When agreement was finally reached a significant number of classes found that they were to receive no new benefits, or relatively smaller benefits compared to other classes. There were numerous complaints, and the Executive Secretary found it necessary to visit the branches that felt most aggrieved in order to explain and justify the settlement. The Association is sensitive to the occasional complaint that too much control is vested in its Provincial Executive in that it determines the final proposal to be submitted to the Government and takes upon itself the responsibility of ratifying the agreement ultimately 11. The Dome, January-February, 1959, p. 6.

227

SASKATCHEWAN

reached. The leadership argues, however, that a high degree of central control is necessary in an association made up of so many diverse elements which must negotiate with a single employer. Without an effective central body it would be impossible "to weigh, balance and reconcile the claims of the many and various occupational groups which constitute the public service, to the end that the special interests of any of them are not advanced at the expense of the welfare of the employees as a whole."12 The establishment of the Pay Adjustment Advisory Committee in 1958 was an attempt to meet some of the complaints by giving representation to the important occupational groups at the penultimate stage of developing the Association's submission. With respect to the charge that the Executive can decide to ratify the agreement without referring it to the Association, the answer is that this is the only practical way in the circumstances. The principle of democratic ratification is applied in the case of the Workmen's Compensation Board Agreement and in major areas of the Time Certificate Agreement where the employee group is sufficiently homogenous. But, the argument runs, there is no practical method of doing this in the case of the Public Service Agreement which deals with the majority of classes in the civil service. The democratic solution to this problem lies in the annual convention and in the election of the Provincial Executive.

12. Proceedings of the 45th Annual Convention, May 1958, Report of the Negotiating Committee, p. 24.

228

AFFILIATION

Affiliation The affiliation of the Association with the Canadian Labour Congress has already been noted. In 1945 and 1946 representatives of the Saskatchewan Association joined representatives of a number of other provincial associations in forming the Canadian Council of Provincial Employees Associations. The Council was set up as a consultative body meeting periodically to discuss problems and developments of mutual interest to provincial civil servants. It was also to be a clearing house of information on comparative salary scales, procedures, and superannuation plans. The Saskatchewan Association remained an affiliate of this organization until 1958, when it decided at its convention to withdraw from the Council. The reasons for this withdrawal seem to be straightforward. The Canadian Labour Congress from its inception, carried over the Department of Government Employees of the old Trades and Labour Congress. Towards the end of 1957, steps were taken to reorganize and revitalize this de, partment. A new director was appointed, and a Provincial Government Employees Committee was established. The Saskatchewan association felt that the Canadian Labour Congress would provide a more effective framework for its provincial civil service affiliates than the Council and that this would tend to make the role of the Council redundant. The resolution on disaffiliation suggested also that the Council had "failed after 11 years of trying to develop into an instrumentality which would have been of invaluable service to the member associations."" 13. Ibid., p. 82.

229

SASKATCHEWAN

The commitment of the Saskatchewan association to the Canadian Labour Congress points to a problem which will be touched on only briefly here but will be treated more fully in the next chapter. This is the issue of direct political action. The 1958 convention of the Canadian Labour Congress instructed its Executive Council to initiate discussions with the Co-operative Commonwealth Federation and other interested groups and individuals with a view to formulating a constitution and a program for a new "political instrument of the Canadian people." The question was immediately raised as to whether the civil service associations affiliated with the Canadian Labour Congress would be compromised by this close identification with a political party. Reassurance was given at a meeting of the Provincial Government Employees Committee which was held during the Convention "that Government employees would be protected against the implications of any policy of political action by the Congress."14 A formal statement by the President of the Congress was released after the convention. He asserted that the "Congress has as much interest as any one in seeing the government service of Canada, whether federal, provincial or municipal, free from any suspicion of political partisanship." He stressed the autonomy of affiliated unions in deciding whether or not to participate in political action: Obviously the government employees' unions will not want such identification and the Congress respects this attitude. In any case, the Congress would take the necessary action to 14. The Dome, June 1958, p. 101.

230

THE ROLE OF THE COMMISSION

relieve these unions of any responsibility for or identification with any policy pertaining to political matters.15

The Saskatchewan Association, unlike some of the staff associations in other provinces, is apparently satisfied that the affiliation of government employees with the Congress need not be adversely affected by the new political course.'6 The Role of the Commission A question that must occur to the student of public administration viewing the experience in Saskatchewan is: How can a Public Service Commission maintain the neutrality required by the administration of a merit system if, at the same time, it acts as agent for the Government in salary negotiations? This, it seems, is not a serious practical issue. Neither the Government nor the Association is troubled by the apparent inconsistency of the two functions; nor, for that matter, is the public. This theoretical difficulty has been avoided in the United Kingdom by vesting the function of recruitment in a Commission and the function of personnel administration (including salary determination) in a department of Government. In Canada, where the general pattern is to entrust the civil service commissions with all aspects of personnel administration, the problem of who represents the government in negotiations with the staff organizations is not so clear-cut. 15. The Dome, p. 95. 16. The Saskatchewan Civil Service Association unexpectedly severed its affiliation with the Canadian Labour Congress at an emergency convention on September 30, 1961. The apparent reason for this action was a decision by the Congress to award jurisdiction over the employees of a new training school to a small rival association, the National Union of Public Service Employees.

231

SASKATCHEWAN

We will see that in most of the provinces this is done by the commissions, usually through their chairmen. It is probably true that the merit principle is more strictly applied on the federal level than on the provincial. Indeed, where the federal Civil Service Act implies that the Commission is responsible to Parliament alone, the Saskatchewan Public Service Act makes the Commission answerable to the Lieutenant Governor in Council. Section 6-(1)(d) of the Act states that it shall be the duty of the Commission "to perform such other acts as the Lieutenant Governor in Council may from time to time direct." It is thus not inconsistent with the statute for the Commission to assume the role of bargaining agent for the Government. Nor is there any evidence that the degree of effectiveness of the merit system in Saskatchewan has been in any way directly impaired by the experience of collective bargaining. It should be noted that, while membership in the Association is a condition of employment in those areas where a collective bargaining agreement is in force, the prerogatives of the Government and Commission in recruitment and promotion are in no way curtailed. The foregoing account of full collective bargaining in the civil service of Saskatchewan suggests that the experience has, on the whole, been a satisfactory one. The Staff Side, in particular, values its right to seek improvement in the conditions of employment in a way that has become standard for employees in private industry. The Government Side appreciates the benefits that have accrued from the high morale and good will of the civil servants. When asked if he considered that collective bargaining in itself had increased the 232

THE ROLE OF THE COMMISSION

cost of administration, a government spokesman answered with an unequivocal "no." There is no doubt that the election of a C.C.F. government in 1944, with strong trade-union support, was the decisive factor in the Saskatchewan development. The early experience of collective bargaining with a Government that was sympathetic towards trade unionism helped to produce the atmosphere and machinery which contributed to the apparent success of the experiment. Collective bargaining is now established in its own right. The view that is held strongly by Government and Staff Sides alike is that the present system of staff relations will endure regardless of which party holds political power in the province. An article in the journal of the Association, which sums up the negotiations that led to the agreement signed in December 1958, ends on this note: In a matter of a couple of weeks the first notice to the Branches will be going out again to be ready for another round of negotiations. It is a process made lengthy by the complications of distance and the variety and complexity of the job content of a large civil service jurisdiction taken as a whole. But it is a process which every other Association would empty its treasury to possess. While it is fraught with problems and tensions from beginning to end and the results are never satisfactory to everybody, in the hands of capable, responsible and reasonable individuals, on both sides of the table, it is a process that yields the maximum benefits and satisfactions, particularly in the sense of dignity that it imparts to those on the employee side.17

17. The Dome, January-February, 1959, p. 5.

233

Chapter IX ALBERTA AND MANITOBA One may begin as well as end the description of staff relations in the provinces of Alberta and Manitoba with a generalization. The machinery and procedures of consultation that have been developed depend for their success on the friendly informality and good will that exists between the Governments and the staff associations. While this is recognized and appreciated by the staff groups, there are some indications that they are striving to establish their relationship with the Official Side on a more formal reciprocal basis. Alberta THE CIVIL SERVICE ASSOCIATION OF ALBERTA

The Civil Service Association of Alberta (C.S.A.A.) is the only organization of government employees in the Province.' Its membership in March 1959 was 8,806, representing about 90 per cent of the eligible civil servants. The Association was founded in 1919 as a direct response to conditions generated by the first world war when civil service salaries had remained relatively static in an inflationary situation and civil ser1. There is, in fact, a separate organization of employees of the Depart. ment of Telephones, but the operations of this department approximate those of a public corporation and are quite distinct from the general stream of government employment.

235

ALBERTA AND MANITOBA

vants did not enjoy any compensating advantages in security of tenure. The year 1919 also saw the first appointment of a Civil Service Commissioner, who was charged with the task of drawing up a classification and salary schedule for the entire service. The results of the Commission's first efforts served only to harden the lines and sharpen the hostility between the Government and the Association. A change of government in 1921 brought some improvements in staff relations. The Association met with the Cabinet and asked for, among other things, a civil service act, a superannuation act, and the formation of a Whitley Council. After some months of discussion the Government agreed to the establishment of a Joint Council made up of three representatives from the Association and three from the Government. It is noteworthy that the three official representatives were to be Cabinet ministers rather than senior civil servants. This aspect will be dealt with more fully later. The Joint Council did not, for many years, achieve much in the way of concrete results. Its meetings were infrequent and its work generally ineffective, largely because the Government was able to ignore the Association. An important achievement in 1935 was the checkoff system for the payment of dues and of group life insurance premiums. The role of the present Premier of Alberta in civil service affairs may have had some bearing on the course of events. After the change of government in 1935, the Hon. E.C. Manning, then a member of the Cabinet, became chairman of the Superannuation Board and later of the Joint Council. The Association became an affiliate of the Trades and Labour Congress of Canada in 1928. The decision 236

PUBLIC SERVICE ACT

to affiliate came after six years of debate among the membership and after a number of plebiscites on the issue. When the merger of the Canadian Congress of Labour and the Trades and Labour Congress took place in 1956, the Association retained its affiliation with the newly formed Canadian Labour Congress. The decision of the Canadian Labour Congress in 1958, to consider a more direct identification with a political party, has caused a good deal more soul-searching in the Alberta Association than it did in Saskatchewan. This will be discussed in due course. The period from 1935 to the early 1950's was one of slow and piecemeal progress. It is difficult to say whether this progress was accomplished through the direct efforts of the Association or whether it was merely a process of adaptation to changing conditions. The pressures exerted by the Association undoubtedly had something to do with the pace of change. But regular procedures of consultation were far from being adequately developed. The first Public Service Commission was established in 1947. It is significant that the man who became chairman of the Commission in 1948, and who served in that capacity until 1959, had been a member of the Association since 1931. He had also been a member of its Provincial Executive and the editor of its monthly bulletin. PUBLIC SERVICE ACT

The Association first received statutory recognition as the representative of Alberta civil servants in 1923, when it was given the right to appoint one member to 237

ALBERTA AND MANITOBA

the three-man Superannuation Board (now the Public Service Pension Board). It received further recognition in the Public Service Act of 1947 (revised in 1954). Section 10(2) stated: The Commission shall consist (a) of a chairman and a second member, both of whom shall be nominated by the Executive Council, and (b) of a third member, who shall be nominated by the Provincial Executive of the Civil Service Association of Alberta.

In describing the work of the Commission, the Act outlined the duties of the Chairman and those of the second member who was designated as Director of Personnel. It was silent with regard to the duties of the nominee of the Association. The role of the Association's representative proved to be minor in practice, and it would seem that the main effect of having such a representative was psychological. In any case, this part of the Act has now been superseded. It is useful to remember that the conception of the civil or public service commissions in the provinces tends to differ from that implicit in the federal Civil Service Act. There does not seem to be the same concern about their independence and impartiality. This has had a decisive influence on the pattern of staff relations. Thus under Alberta's Public Service Act, 1947, the Commissioners held office "during the pleasure of the Lieutenant Governor in Council." All substantive regulations were subject to the approval of the Cabinet. The Commission was authorized to examine and certify the qualifications of applicants for vacant posts, but the actual appointment from lists of eligible candidates was left to the discretion of the ministers. The 238

JOINT COUNCIL

Commission was regarded mainly as an administrative device which coordinated the Government's personnel policies. It was therefore not difficult to assign to the Chairman of the Commission the task of representing the Government in dealings with the staff association. The Public Service Commissioner Act, 1959, which replaced the three-man Commission with a single Commissioner, did not, as we shall see, modify this approach. JOINT COUNCIL

The part of the Public Service Act, 1947, which is truly significant for our purpose remains intact. Indeed, it has been reinforced by the amendments of 1959. The Joint Council which was established in 1922 did not function well largely because its role was not taken seriously by the Government. The terms of reference were vague and meetings were intermittent. The revision of the Public Service Act in 1954, however, gave the Joint Council the statutory basis for a much more effective mode of operation. Section 31(1) declares that the "Lieutenant Governor may authorize the establishment of a Joint Council." The amendment of 1959, removes the element of discretion by substituting shall for may. The Joint Council consists of "three members of the Executive Council [Cabinet] and three persons appointed by the Civil Service Association of Alberta." The Chairman of the Commission (now the Public Service Commissioner) and the Executive Secretary of the Association may participate in the deliberations of the Joint Council in a technical capacity, without voting rights. The decisive provision 289

ALBERTA AND MANITOBA

of the Act was Section 31(5) which laid down the time for regular meetings: The Joint council shall meet on the second Monday of each calendar month and at such other times as are necessary for the expeditious conduct of its business, but the holding of any meeting may be waived or postponed by prior agreement between the Chairman and the Vice-Chairman of the Joint Council. The Chairman is one of the members of the Cabinet, the Vice-Chairman is appointed by the Association. The effect of the Act was to set up a permanent consultative committee on the highest level. The terms of reference of the Council are much more precise than those of the National Joint Council that operates on the federal level. Instead of vague references to "general principles governing conditions of employment in the public service," there is provision for dealing with material issues. Section 31(2) outlines the functions of the Council thus: (a) to consider any suggestions or requests made by or on behalf of employees with respect to their salaries or pensions or any other working conditions ... (b) to consider any grievance submitted by or on behalf of an employee or employees ... (c) to act as board of appeal in any cases of alleged unjust dismissal, suspension or demotion ... (cl) to examine and report to the President of the Executive Council upon any regulations, rules of procedure or schedules prepared by the Commissioner ... (d) such other functions as may be assigned to the Joint Council by the Lieutenant-Governor in Council. To be sure, the Council does not have the authority to determine the issues that come within its purview. It can only recommend or report to the President of the 240

JOINT COUNCIL

Executive Council. But given the good faith of both sides in their deliberations, and considering that the Official Side is represented by three Cabinet ministers, one of whom is usually the Provincial Treasurer, it is almost certain that the recommendations of the Joint Council should be made operative in due course. The process of joint consultation in Alberta provides, on the whole, a very effective channel of communication between the Government and the Staff Association. But it falls short of being a substitute for the kind of direct negotiations that take place in Saskatchewan or in the British civil service. There is no limit to the time that can be spent in dealing with difficult issues. There is no certainty that a recommendation made by the Joint Council will be implemented with a minimum of delay. Finally, there is no way of resolving a deadlock between the two sides. This means, in effect, that the Government can ultimately have its way. That a good relationship exists between the Government and its employees is due not so much to the machinery that has been established as to the reservoir of good will that has been accumulated over the years. An imponderable element in the situation must certainly have been the relative prosperity of the Province. In their report to the 1958 Convention of the Association, its representatives on the Joint Council made a point of expressing their appreciation of the atmosphere of friendly cooperation on the Council: "While it is true that not all our recommendations were accepted and acted upon by the government, nevertheless the freedom with which all matters were discussed left no doubt that . . . the - Government's policy is to ensure 241

ALBERTA AND MANITOBA

that working conditions in the service are in line with the general standard set by good employers."' Notwithstanding the good relationship with the Government, there are times, it seems, when the Association would like to have more decisive procedures for settling issues. Two resolutions passed at the Convention of 1958 illustrate this. One resolution called on the Provincial Executive to approach the Government "to set up a Board of Arbitration to finalize disputes between the Civil Service Association of Alberta and the Government." Arbitration, however, is not really a significant objective and may not become one unless the formal and informal processes of consultation should begin to lose their present effectiveness. This is borne out in the annual brief that the Association presented to the Government in May 1959. It asked for arbitration procedures, but recommended that the use of these procedures be made conditional "to ensure that every effort has been made to reach a settlement by means at present available."' The second resolution suggested that there had been occasional difficulty when departments had interpreted agreements reached between the Association and the Government as applying only to employees coming under the Public Service Commission. The resolution therefore requested that a binding agreement be implemented which would recognize the Association "as the bargaining agent for Government employees and in 2. Civil Service Bulletin (official publication of the C.S.A.A), December, 1958, p. 43. 3. Civ. Serv. Bull., June 1959, p. 11. In his report to the 1960 convention of the C.S.A.A. the executive secretary pointed out that negotiations with the Government for an arbitration board to deal with matters that could not be resolved by Joint Council procedures were continuing.

242

PUBLIC SERVICE COMMISSIONER

such a manner that this agreement cannot be circumvented by any department." It is strange that such a request should have been thought necessary. The Association had received, only a year before, a letter from the Premier conveying a number of cabinet decisions. One of these recognized the Association and the Joint Council as the agencies through which all personnel would be dealt with, "not only for those branches of the public service under the Civil Service Commission, but also for those branches excluded from the purview of the Commission by order-in-council."4 It seems that the Premier's letter did not remove the ambiguity; hence the resolution. PUBLIC SERVICE COMMISSIONER

The desire of the Association to have all provincial employees bound by any agreement reached between itself and the Government led to its recommendation, in 1956, of the establishment of a single personnel department. In this way, it was thought, the working conditions of all employees would be brought under a single regime. It seems that differences had developed between those employees coming under the Public Service Act and those excluded from it. The suggestion was to have a Minister of Personnel whose deputy would also be chairman of the Public Service Commission. The Government was apparently sympathetic to the idea. The Premier's letter also indicated that the Provincial Treasurer had been given the authority to set up a Personnel Department as a branch of the Provincial Treasury, which would have "jurisdiction 4. Civ. Serv. Bull., August 1957, p. 23.

243

ALBERTA AND MANITOBA

over all civil service personnel matters, including salary schedules, employment regulations, etc."5 A Personnel Department, as such, was not created. But the Public Service Commissioner Act, which was passed in April 1959, seems to meet the main objectives of the Association. The Act provides for the appointment of a Public Service Commissioner who replaces the three-man Public Service Commission. It places the administration of the Act under the charge of a Minister. It instructs the Commissioner to establish a Personnel Administration Office and gives him broad authority as coordinator of personnel policy with respect to all public servants except Deputy Ministers and, to a lesser degree, seasonal employees. The new Act does not supersede the Public Service Act but drastically amends those parts pertaining to the former Public Service Commission. It is too early to judge how the new Act is working out in practice. As in Saskatchewan, it is noteworthy that there is no concern about the apparent conflict between the role of the Commissioner as administrator of a merit plan and as the subordinate and agent of a political minister. AFFILIATION

The affiliation of the Alberta Association with the Canadian Labour Congress underwent a period of severe stress after the 1958 convention of the Congress. The resolution passed at that convention, which implied a much closer identification between the Congress and the C.C.F. party in the process of forging a new "political instrument of the Canadian people," 5. Ibid.

244

AFFILIATION

caused consternation among the Association's delegates. There was talk of immediate disaffiliation. The Provincial Executive of the Alberta Association passed a resolution at its meeting of May 7, 1958, advising the Congress "that this Association is against endorsement of any political party, either by ourselves or by any group with which we are affiliated." Action on disaffiliation, however, was postponed pending further developments. At a meeting of the Provincial Executive in June, two representatives of the National Executive of the Congress attempted to allay the concern of the Alberta Association. They referred to the policy statement of the President of the Congress to the effect that the "Congress would take the necessary action to relieve these unions [government employees] of any responsibility for or identification with any policy pertaining to political matters." The Alberta executive remained suspicious. The Executive Council of the Canadian Labour Congress met in August and passed a resolution which it hoped would reassure all its affiliates among public service employees: BE IT FURTHER RESOLVED that the Executive Council herewith emphasizes that the policy of the Canadian Labour Congress has been and remains— (a) the right of any affiliated union, national, international, regional or provincial, to exercise complete autonomy within the constitution and bylaws of the Congress, (b) more specifically, the right of any affiliated union of government employees to be free, financially or otherwise, from any responsibility for or identification with any Congress policy pertaining to political matters, and (c) recognition of the fact that political neutrality is essen-

245

ALBERTA AND MANITOBA

tial in the government service, whether federal, provincial or municipal.6

The position of the Association on this question emerged more clearly at its thirty-eighth annual convention, which was held at the end of November 1958. The Convention dealt with a number of resolutions calling for disaffiliation, but these were all defeated. It was felt that this action would be premature, and the Convention agreed with the recommendation of the Provincial Executive that the matter be left in abeyance. The Provincial Executive then introduced its own resolution, which approached the issue less directly. It called for a referendum among all members of the organizations affiliated with the Congress to discover whether they supported its proposed political action. There were hints that the Congress leaders had embarked on this course of action without properly canvassing the opinion of their rank and file. In addition, anticipating that the Executive of the Congress would be cool to the idea, the resolution also proposed a referendum among members of the Association "notwithstanding such action by the C.L.C." The purpose of such a referendum, it was said, would be to guide the Executive of the Association "in their future actions related to affiliation with the Canadian Labour Congress."7 The resolution was carried, and the Provincial Executive was empowered to use its discretion in the matter. As plans for the referendum were set in motion, the Association made a point of informing its members of 6. Reported in the Civ. Serv. Bull., November 1958. 7. Civ. Serv. Bull., January 1959, p. 40.

246

AFFILIATION

the issues as fully as possible. Every issue of the Civil Service Bulletin after the Convention contained articles or reports dealing with various aspects of the problem. The presentation was, on the whole, straightforward. The Provincial Executive suggested that if the Congress were to become politically active the crucial question would be "How can any affiliated union remain completely autonomous, especially with regard to the channelling of per capita dues to a political movement?"8 The Bulletin carried in full the statements of the Congress Executive, which sought to reassure the Association that its status would not be jeopardized by the policy which was developing. The Congress urged the Association to continue its affiliation: "To do otherwise is to cut your Association off from the main stream of organized wage and salaryearners in Canada, both in private and public employment. . . .Do not let your Association become weakened through isolation."9 It seemed incongruous that, while the issue had been discussed in terms of the effect that the course of the Congress might have on the position of the Association as an affiliate, the question posed in the referendum was "Do you support the proposed political activity of the Canadian Labour Congress?" To be sure, the form of the question was in keeping with the resolution; but did it not prejudice the result? The referendum was carried out in July 1959. Ballots were mailed to all members of the Association, but only 42.5 per cent were returned. Of the ballots re8. Civ. Sera. Bull., March 1959, p. 22. 9. Ibid.

247

ALBERTA AND MANITOBA

turned 88 per cent were marked "no". On October 23, the Provincial Executive voted to suspend affiliation with the Canadian Labour Congress, leaving the question of final termination to be decided at the annual convention of the Association. This action may be explained only in part by the concern to avoid any suspicion of being identified with a new political party. It must also be seen against the background of growing rivalry between the revived Government Employees Branch of the Congress and the Canadian Council of Provincial Employees Associations. The Alberta Association played a prominent part in the formation of this Council and continues to be its staunchest protagonist. It is also actively promoting a national federation of staff associations, the Canadian Federation of Government Employee Organizations. The latter organization exists only in embryo, but its supporters expect it to absorb the Council in the long run. Manitoba The similarities in the procedures and atmosphere of staff relations in Alberta and Manitoba are at once apparent. Indeed, it might be suggested that both the Official and Staff Sides in Manitoba look to the experience of Alberta for their guidance. There are, nevertheless, important differences both of substance and of emphasis. The Manitoba Government Employees Association was at one time affiliated with the Trades and Labour Congress of Canada. It did not, however, retain its affiliation when the Trades and Labour Congress and the Canadian Congress of Labour merged to form the Canadian Labour Congress. The Association is at pres248

MANITOBA

ent one of the staunch supporters of the Canadian Council of Provincial Employees and of the projected Canadian Federation of Government Employees Organizations. The Civil Service Act of Manitobai° differs fundamentally from the general pattern of such legislation in Canada. It separates the recruitment and classification function from that of organization and salary determination. It gives the first to the Civil Service Commission and the others to the Lieutenant Governor in Council. In this respect it approaches the practice in the United Kingdom. However, the Civil Service Commission of Manitoba is also expected to play the role of efficiency expert, which in Britain is assumed by the Treasury. Thus Section 5 of the Act, which outlines the general duties of the Commission, includes the fostering of "programs for the improvement of the effectiveness of employees" and encouragement of "effective personnel administration within the several departments." In addition, the Commission is empowered to investigate and report on the operation of the Act. Sections 7 and 12 of the Civil Service Act establish the initiative of the Commission in classification and appointments. Its regulations in this area are subject, of course, to the approval of the Lieutenant Governor in Council. Section 8(1) makes it clear that the pay plan for the civil service is the sole responsibility of the Lieutenant Governor in Council, although Section 8(2) gives the Commission a role in the administration of the plan once it has been authorized. In practice, it is the Treasury Board of Manitoba that has the main responsibility in devising the salary scales and condi10. Rev. Stat. Man., 1954, Chap. 39.

249

ALBERTA AND MANITOBA

tions of work. While it is true that the technical advice of the Commission is often, perhaps regularly, sought, the Commission is very careful to avoid giving any impression that it is anything more than a passive adviser in this process. Section 11(1) and (2) states that the organization of departments and their establishments is also subject to the determination of the Lieutenant Governor in Council. In this area the Commission may report on what is done or proposed, but it does not take the initiative in making recommendations. This reasonably clear-cut distribution of authority and responsibility between the Commission and the Lieutenant Governor in Council (Treasury Board) facilitates the process of staff relations. If the staff association seeks an adjustment in pay scales, it knows that it must deal with the Government and Treasury Board. If, on the other hand, it wishes to question a classification or appeal a promotion, it turns to the Civil Service Commission. A number of changes in legislation having a bearing on staff relations in the Manitoba civil service were enacted in the spring of 1958. These changes did not, however, imply significant variations in practice. They served primarily to give a statutory basis to existing procedures and to meet, partially, some of the Association's requests. Prior to April 1958, the Manitoba Labour Relations Act (Section 55)" excluded all provincial government employees from its application. It went further than the federal Act in that it also excluded employees of all Crown agencies. In practice, the Government continued to deal with various groups of public service employees on the same basis as before the passage of 11. Rev. Stat. Man., 1954, Chap. 132.

250

MANITOBA

the Labour Relations Act. In some cases, such as those of craft employees in the Manitoba Hydro-Electric Board and in the Winnipeg Electric Company, negotiations and even agreements were not disturbed. It was made clear, however, that this was merely an informal recognition of the status quo that could be terminated any time the Government considered it necessary or advisable. It was to be expected that employees of Crown agencies would press for the repeal of Section 55 of the Act to the extent that it restricted their collective bargaining status. But even the Manitoba Government Employees Association, which was comprised mainly of departmental civil servants, passed periodic resolutions asking that the Labour Relations Act be amended so as to remove all limitations on the bargaining rights of civil servants. The amendment to the Manitoba Labour Relations Act, which was given royal assent on April 10, 1958, redefined the status of employees of the Manitoba Power Commission, the Manitoba Telephone Commission, the Manitoba Hydro-Electric Board, the Winnipeg Electric Company, and the Liquor Control Commission. The associations of these employees were now given formal recognition, and the process of negotiating and reaching collective agreements was also formalized. Although this study is not concerned with the staff relations of public and Crown corporations, a slight digression to consider the present legislation in Manitoba may be justified. It suggests a pattern that may be adopted by other jurisdictions that do not wish to give public employees quite the same procedures for collective bargaining as are enjoyed by employees of private corporations. This is not to say, however, that 251

ALBERTA AND MANITOBA

employees of public boards, commissions, or corporations would be satisfied with such a status. In addition to allowing for the recognition of associations or unions of the public service employees in question and for the signing of formal agreements, the 1958 amendment provides procedures for dealing with disputes or deadlocks. At an early stage in negotiations, either party may request the Minister of Labour for the services of a Conciliation Officer who might assist them to conclude an agreement. If this expedient fails to resolve the issues, there can then be a request, under Section 71(1), for the appointment of a mediation board "for the purpose of mediating and making an award in the dispute." It should be noted that the mediation board is a new institution limited to the public service disputes in the area designated by the amendment. Section 71 (2) states that the decision to appoint such a board lies with the Minister "in his absolute discretion." The mediation board hears the argument of the parties and recommends an award in its report to the Minister. This is then communicated to the parties. Each party must notify the Minister within seven days whether or not it is prepared to accept the award. The appeal is heard by the LieutenantGovernor in Council in the presence of both parties. This, in effect, is a rehearing of the case. Then, "as soon as possible after the hearing . . . is ended, the Lieutenant-Governor in Council shall, by order, either confirm or vary the award of the mediation board" (77(4)). The order of the Lieutenant Governor in Council may also declare that "the uninterrupted operation of the business or functions . . . of the employer, or the unit represented by the bargaining agent, that are parties 252

MANITOBA

to the dispute, is essential to the health and well-being of the people of the province, or some of them" (78(1)). Where such a declaration is made, the Order in Council is binding on the parties. If the declaration is not made, it is possible to have a legal strike or lockout. The procedures are rather elaborate and it is too early to gauge their practical effect. An important aspect is the intention to distinguish between disputes having a greater or lesser impact on the public interest. The difficulty, of course, is that in a hard dispute the Government itself has the last word. The Minister of Labour may refuse to set up a mediation board. The Cabinet may by Order in Council either confirm or vary the award of such a board. The Order in Council may impose the award by declaring that the public interest cannot brook any interruption in the functions or services discharged by the parties to the dispute. The strike and lockout are also ruled out by such a declaration. The Manitoba Government Employees Association was not affected to a great degree by the changed Labour Relations Act since the bulk of its membership is in the departmental civil service. But there were implications for those of its members who were, and are, employed in the agencies affected by the amendment. The Association considers itself representative of all government employees. Over the years it has acquired a considerable number of members in the Liquor Control Commission and in the Manitoba Telephone Commission, and these have been organized as full-fledged units of the Association. After the amendment to the Labour Relations Act had been passed, the employees of the Liquor Control Commission decided not to seek 253

ALBERTA AND MANITOBA

separate certification but retained instead their established membership in the Association. The employees of the Telephone Commission, however, chose to take advantage of the new legislation. There were actually three organizations of telephone employees at the time of the amendment. The International Brotherhood of Electrical Workers was a craft union which had represented craft workers for many years; it was certified in March 1959 under the amended Act. The Manitoba Federation of Telephone Workers was an independent association of plant and traffic employees, and the Manitoba Telephone Association was a direct unit of the Manitoba Government Employees' Association, comprising clerical and administrative employees. These last two organizations, after receiving certification for their bargaining units, decided to amalgamate and form an affiliate of the Manitoba Government Employees Association. Certification allows the new organization, the Federated Telephone Employees' Association, to negotiate independently. At the same time, the affiliation gives it the advantage of representation on the Joint Council. The amendment of the Civil Service Act at the end of March 1958 must be seen in relation to the changes in the Labour Relations Act. At its 1957 convention, the Manitoba Government Employees Association had passed a resolution requesting that Section 55 of the Labour Relations Act be eliminated. This implied that the Association was seeking full collective bargaining rights. In due course, the Association learned that the Government was preparing to grant formal bargaining procedures to employees of government commissions and boards, but not to civil servants employed in the 254

MANITOBA

"inner service." The Association protested that this would prejudice its position—"that the M.G.E.A., which for many years had negotiated for the whole government service, was being relegated to a position of secondary importance.''12 The Government agreed to meet with the Association to re-examine and, if possible, to strengthen its bargaining position. Until 1958, relations between the Government and the staff association were quite informal. There was a Joint Council in operation which was modelled on the one in Alberta. It was made up of three Cabinet ministers, three representatives of the Association, and a member of the Civil Service Commission. The council, however, was not set up by statute, nor did the Association have formal recognition. The Joint Council met periodically to consider representations by the employees on policies of concern to them, and apparently worked quite well. In addition, the Association enjoyed easy access to the Civil Service Commission, Cabinet ministers and deputy ministers. This open-door policy created an atmosphere of cordiality and mutual respect in staff relations. It was possible to settle many points of detail in this informal manner. When the question of a more formal status for the Association came up, it was threshed out in the existing Joint Council. The general conclusion was that a practical scheme of collective negotiation in the Manitoba civil service could best be achieved by the refinement of the process of joint consultation. This would entail giving the Joint Council a legal status and prescribing its terms of reference. Above all, it was felt that the success of joint con12. The Bison (official journal of the M.G.E.A.), April 1958, p. 9.

255

ALBERTA AND MANITOBA

sultation would depend on "maintaining a climate in Joint Council which will be conducive to frank and free discussion aimed toward seeking mutual agreement."" The Civil Service Act was amended accordingly in March 1958. First, the Manitoba Government Employees Association was officially recognized as "the association." Secondly, the Joint Council was established formally. The statutory Council consists of six members—the Provincial Secretary, two other members of the Cabinet, and three representatives of the Association. A member of the Civil Service Commission and the Executive Secretary of the Association are permitted to attend meetings in a consultative capacity. The Council is required to meet at least once a month except when the Legislature is in session. The duties of the Council are set out in general terms in Sec. 6B: The council shall consult on any suggestions or requests ... with respect to fair wage or salary levels ...; consult on any suggestions or requests ... with respect to employee services, activities, and security ...; endeavour to promote and maintain between the government and the association such a feeling of good will and cordiality as will encourage a free and frank discussion of all problems, with a view to reaching mutually acceptable decisions thereon; and (d) perform such other functions as may be determined by mutual agreement.

As suggested earlier, the new legislation added little to existing practices. It merely made them more formal in a legal sense. The Association appears to be satisfied 18. Ibid.

256

MANITOBA

that the Joint Council provides a "medium of negotiating and bargaining with our government,"" appropriate to the Manitoba civil service. On the whole, the leaders of the Association seem to have developed a pragmatic approach to their problems. The Executive Secretary stated in a letter to the writer: "We have a unique system of dealing with our Government—a system which we have found to yield results—and that is the thing that counts." Yet there are indications that the system does not always live up to expectations. The process of reaching agreement by joint consultation can be long-drawn-out, and there is no certainty that every issue will be brought to a mutually satisfactory conclusion. The open door is not always a substitute for a regulated grievance and appeals procedure. It is therefore significant that at the annual convention of the Association in January 1959, a resolution was passed requesting arbitration rights if negotiations with the Government on "serious matters" break down. The issue is not yet a serious one, but it is always latent in a staff relationship in which the Government of the day can always have final discretion."

14. Handbook of the M.G.E.A. 15. The Report of the Wage and Salary Committee to the 1961 convention expressed a certain sense of frustration. It described deliberations that had been going on in Joint Council for a year without any concessions to the salary claims of the Association and ended on this note: To reject our request will create an extremely serious and dangerous situation which does not require elaboration here. We stand ready to assist in solving this matter through joint consultation. The Bison, February 1961, p. 14.

257

Chapter X ONTARIO The Civil Service Association of Ontario (C.S.A.O.), with a membership of 27,193 (May 1959), is by far the largest of the provincial staff associations. Although the Association was founded in 1911, it did not become incorporated under its present name until 1927. At that time it numbered 1,192 members, organized in six branches across the province. The stated objective, then as now, was "to improve the efficiency of the Civil Service and to promote the common interests of the members of the Association." The by-laws of the Association imply that it considers itself capable of representing all provincial public servants, including employees of boards, commissions, and county jails. The Association, however, has not, in its own view, been very successful in achieving satisfactory negotiating arrangements with the Government. Indeed, relations seem to be deteriorating, not because the official attitude has changed but because of the rising expectations of the Association. The Civil Service Commission The Ontario Public Service Act' provides for a Civil Service Commission of "not more than three persons appointed by the Lieutenant-Governor in I. Rev. Stat. Ont., 1950, Chap. 317 and amendments.

259

ONTARIO

Council." Until 1957 there was a single Commissioner who served full time. In that year two additional parttime Commissioners were appointed. Both had been senior departmental civil servants. With the retirement of the full-time chairman in 1958, the Commission was reconstituted with two full-time members and one parttime member. The present part-time member is a deputy minister. The Ontario Civil Service Commission, like those of other provinces, does not make final appointments; it merely certifies the qualifications of candidates and designates their classifications and salary scales. Permanent appointments are made by the Lieutenant Governor in Council; temporary appointments for no longer than one year may be made by a minister. Thus, even the largest province has not attained the degree of merit system which operates on the federal level. Regulations such as those respecting appointments, classification, promotion, and "increasing the remuneration of civil servants"(9(c)) may be made by the Lieutenant Governor in Council, or by the Commission subject to the approval of the Lieutenant Governor in Council. This is standard practice. But the Association has complained that the regulations are too often vague and permissive. The effect of allowing a minister or his deputy a great deal of leeway in interpreting regulations or directives is frequently a serious loss of uniformity in civil service administration: "Poorly worded regulations cause the improper interpretation and application of Government policy; and discriminatory practices which should not exist are the inevitable result."2 2. The Trillium (official journal of the C.SA.0.), July 1958, p. 1.

260

JOINT CONSULTATION

The Association has also criticized the weakness of the Commission vis-à-vis departmental personnel officers. It has argued that the Public Service Act provided the Commission with considerable authority but not with the means to exercise it. Staff and facilities have been inadequate to the task of giving central and uniform direction to a civil service as large as that of Ontario. It is easy to understand the Association's desire for an effective personnel agency before which it could represent the interests of its members in the service as a whole. The Government apparently came round to this view as well and, in December 1960, announced organizational changes and new appointments designed to strengthen the Commission. Joint Consultation In 1944, following the lead of the federal Government, Ontario established a Joint Advisory Council (J.A.C.) by Order in Council. The Order was later incorporated in the Regulations under the Public Service Act. The structure and terms of reference of the Council are similar to those of the National Joint Council of the Public Service of Canada. This may account for the apparent failure of the Joint Advisory Council when compared with the Joint Councils in Alberta and Manitoba. The Ontario Council is made up of seven members. Four are appointed by the Lieutenant Governor in Council and three by the Civil Service Association of Ontario. One of the government appointees is designated as chairman, and one of the staff representatives as vice-chairman. The members of the Official Side have been senior civil servants, but the Government has indicated recently that it would ap261

ONTARIO

point a minister to the Official Side in order to improve communication between the Council and the Cabinet. This is in contrast to the provisions in Alberta and Manitoba for the appointment of Cabinet ministers to the Government Side, making consultation much more direct. The Council's terms of reference tend to be both general and limiting. Its functions are to "study and consider . . . the general principles governing appointment, promotion, remuneration, vacations, . . . improvement of methods for carrying on the public business, . . . development of a career service, . . . [and] proposals for legislation affecting members of the civil service in relation to their employment."3 As is the case on the federal level, the terms have been interpreted to exclude direct discussion of salary matters. The Council has no executive powers; it can merely recommend to the "appropriate authority." There is no convention that Council recommendations should be made operative with the least possible delay. As a result, considerable time may elapse between the making of a recommendation and its implementation. An official pamphlet describing the working of the Council acknowledges the delays and gives as an example the case of the five-day week. The principle of the five-day week had been recommended by the Council, but the Government had deferred its acceptance of that principle for almost three years. "In this particular matter the government exercised its judgment with regard to the time at which the proposal would be acceptable to the general public."4 The staff 3. Ontario, Regulation 23/59, General Regulations, No. 16. 4. Joint Advisory Council Pamphlet, p. 7.

262

JOINT CONSULTATION

association, of course, is not satisfied with so slow and, ultimately, so one-sided a process of consultation. Staff criticism of the Council has become increasingly sharp. An editorial in the March 1959 issue of the Trillium gives a number of examples of delay and frustration. It is noteworthy that the Association does not so much question the institution of joint consultation as criticize the Government's tendency to act slowly, if at all, on its proposals. The editorial recognizes the growing efficiency of the Council in its internal deliberations, but feels it is being wasted: The resulting recommendations to the Government have, we believe, been sound, progressive and defensible. The action of the Government on these recommendations has been non-existent. Under the circumstances, this lack of action is indefensible.5

Not only is the lack of action indefensible, it argues, but it signifies a serious waste of time, money, and talent. At a meeting of the Association in March 1959, one of its representatives on the Council outlined the course of consultation on the issue of cash payment for overtime work. The proposal for cash payment had been introduced by the Association in 1956. It seems that the principle was accepted because, after a number of general discussions, the Council went on to examine the technical details of application and administration. For months regular discussions were continued in the Council; the Civil Service Commissioner and the Cabinet Committee on Civil Service Affairs studied the proposal from all angles; and the matter was passed on 5. The Trillium, March 1959, p. 4.

263

ONTARIO

to the Treasury Board, which considered it for more than a year. Field surveys were conducted to work out the actual mechanics of the scheme; stationery forms were drafted; the proposal even went to the Registrar of Regulations to prepare the formal regulation. In the spring of 1959, however, it became evident that the Government was not planning to carry out the proposal. The Association reacted with surprise and anger: "Is it surprising then, that we were stunned to hear that payment for overtime is considered unrealistic, unworkable,—and unlikely?"6 At the same meeting in which the particular matter was raised, the Executive Secretary of the Association told of periodic correspondence with the Premier on the subject of the Joint Advisory Council. He referred to an exchange that had taken place in August 1956. In reply to the Association's protest against the inadequacies of the Joint Council, the Premier had argued that it was modelled on the British Whitley Council, and he implied that it fulfilled a similar function. The Association had rejected this analogy in its letter of reply. The Executive Secretary then went on to say in his comments to the meeting, "I don't think I'm being too much of an agitator in saying that any relationship between the British Whitley Council System and the Ontario Joint Advisory Council System is purely accidental."7 In view of the growing disenchantment with joint consultation, it was not surprising that the Association should come out for more conclusive procedures. An editorial in the Association's journal ends on this note: 6. The Trillium, May 1959, p. 13. 7. Ibid., p. 16.

264

JOINT CONSULTATION

It is dear that the next step can only be introduction into the present system of negotiation of a form of bargaining which will result in a memorandum of agreement, signed by representatives of both parties, and binding upon both for the term of the agreement .8

Before turning to the question of collective bargaining, it may be useful to glance briefly at the operation of the departmental and branch joint councils. These are provided for under Regulation 17 of the Public Service Act, which authorizes the Council to arrange "for the establishment for each department of a departmental council and such branch councils as it may deem necessary." The scope of the departmental councils is, of course, more limited than that of the Joint Council. They are expected to meet less frequently and to restrict their activity to purely departmental or branch problems. It appears that their main function is to deal with individual complaints and grievances, but they have not been very successful in this area. In the first place, like the parent body, the departmental councils are advisory only. They cannot determine issues, but merely recommend to the appropriate authorities. This means that decisions, when and if finally made, are essentially unilateral. A second difficulty stems from the composition of the departmental councils. Of the six members in each council, three are appointed by the Minister, and three are elected by the civil servants of the department or branch. Thus the Association does not receive the same kind of recognition on the departmental councils that it received on the Joint Council, a factor to which the Association attributes the greater ineffectiveness of the depart8. Ibid., p. 4.

265

ONTARIO

mental councils. An editorial commenting on this weakness declares: This appears to present a puzzle to the management representatives. The answer is quite clear to the student of modern employer-employee relations—direct participation of the independent organization, the Civil Service Association, is lacking. In fact, the names of Association officers have been removed from the ballot by departmental officials on occasion.9

The Quest for Negotiation There were apparently few real difficulties in the relationship between the Government and the Association until 1956. This was due not so much to the effectiveness of formal procedures as to the relative generosity of the province, on the one hand, and the absence of strong pressures within the Association, on the other. Ontario civil servants had enjoyed better salary scales and general conditions of work than those of other jurisdictions. The Ontario government had developed the practice of tying Ontario salary scales to those of the federal civil service. Thus an increase in federal scales was followed, in due course, by a similar adjustment in the province. This seemed satisfactory as long as the other provinces lagged behind. But when the staff associations in the western provinces began to gain conditions of work that improved their relative status, the Ontario Association felt compelled to reexamine its position. First, the Association noted that there was always a time lag of several months between a salary increase on the federal level and the corresponding increase for provincial civil servants. Secondly, 9. The Trillium, May 1959, p. 8.

266

THE QUEST FOR NEGOTIATION

it argued that the federal scales to which the province was adjusting were based on Dominion averages whereas living costs and living standards in Ontario were consistently higher. The principle of "fair comparison" therefore required that salary scales for Ontario civil servants be related to the wage economy of the province. To achieve this, the Association concluded, it would be necessary to improve and revise the procedures of consultation. In May 1956, the Board of Directors of the Association met with the Premier to discuss a brief that they had presented. There appeared to be agreement that the Regulations under the Public Service Act were in need of revision and the Civil Service Commissioner was instructed to re-examine the Act. In response to complaints about the irregular deliberations of the Joint Advisory Council, the Premier issued specific instructions that it should meet every month. A Cabinet Committee on Civil Service Affairs was also established. Two years later, in August 1958, the Association, in another brief, referred to the meeting of May 1956, and expressed its disappointment that so little of its promise had been fulfilled. The revision of regulations had not taken place. The Joint Advisory Council, though meeting more regularly, was still very slow in reaching agreement on recommendations and still uncertain as to their implementation. The Cabinet Committee met with the Association very infrequently; and even when it did meet it was never clear as to what its functions and authority were. In the two-year interval pressures within the Association for quick and concrete results had grown considerably. These were reflected in a letter to the Premier. It submitted a 267

ONTARIO

number of specific proposals dealing with a review of the Public Service Act, the handling of complaints and grievances, overtime payment, and joint consultation. The most significant new proposal called for more binding commitments from the Government that agreements reached would be made effective: At any level of discussion between the Association and the Government or its representatives, a memorandum of agreement signed by the parties of both sides, shall be issued immediately after agreement is reached.10

The Government, evidently, did not accede to these proposals and matters continued as they were. But the mood of the Association was changing rapidly. An editorial which appeared in The Trillium on the eve of the Association's annual meeting in 1958 gave expression to this mood: First, let us point to the moral of this editorial—which is that in the field of public service, brinkmanship has no place. The public welfare is involved, and management has no right to play this sort of game with its employees when the result may be a strike—at the taxpayers' expense . . . work stoppages cannot be eliminated by legislation that prohibits such an action, for human beings throughout history have revolted against conditions of work when those conditions are deemed to be unacceptable. But this possibility is minimized when management provides an avenue of negotiation where differences can be reconciled before the brink is in sight."

The editorial also commented on the deteriorating staff relations in British Columbia and the possibility of strike action there: 10. Letter to the Premier of Ontario, August 19, 1958, as reported in The Trillium, October 1958, p. 6. 11. The Trillium, November 1958, p. 3.

268

THE QUEST FOR NEGOTIATION

While it is unlikely that we in Ontario will ever face a crisis such as theirs, it must nevertheless be plainly stated that there is no guarantee the crisis will not occur.12 It called for the establishment of regulated negotiating procedures before "tempers are such that 'face saving' becomes more important than the problem itself." The editorial was probably premature in its belligerent tone. The annual meeting of the Association in mid-November discussed the problem of direct negotiations, but the resolutions seemed to be deliberately vague and mild. The President's report referred to the brief that had been submitted to the Premier in August and added: There is little doubt that the time has arrived when employees of the Crown should be recognized as other citizens are, with the same right to representation by the organization of their choice, to formal bargaining procedures, and to arbitration or appeal if necessary.13 There was only one resolution which dealt with the issue directly. It called on the Government to "officially recognize the Association as the bargaining agent for all employees of the Province of Ontario."" Another resolution calling for the implementation of the "Rand Formula" (i.e. making membership in the Association a condition of employment) was defeated. It would seem that at the time of the annual meeting the rank and file were far less militant than the leaders of the Association.

12. Ibid. 13. Ibid., January 1959, p. 29. 14. Ibid., p. 17, Resolution 14.

269

ONTARIO

In December 1958, the Association submitted a new brief to the Government, proposing a number of changes in the Public Service Act. The main object of the brief was to achieve formal negotiating procedures. What made it particularly interesting was the way it attempted to reconcile the process of negotiation with the traditional legal notion of the state as employer. First, the brief urged that the independence of the Civil Service Commission be clearly established and reinforced. Secondly, it asked that the Act specify a number of areas of personnel policy as appropriate for negotiation, the most important area being the "schedule of classifications, including qualifications, duties and salaries." Thirdly, while retaining the principle that the Commission should have the authority to make recommendations on these matters to the Lieutenant Governor in Council, the brief insisted that there be statutory provision for negotiations with the Association before any recommendations were made by the Commission, or regulations passed by the Government. There was some confusion as to who negotiates with whom. At one point the reference was to negotiations between government representatives and representatives of the employees. A little further on there was a more explicit recommendation. It stated that "the Commission should have the obligation under the statute of appointing a committee for the purpose of negotiating with the employees' Association . . The object of these negotiations should be an "agreement mutually satisfactory to the Commission 15. The Trillium, February 1959, p. 4. (My italics.)

270

THE QUEST FOR NEGOTIATION

and the employees' Association." If such an agreement could not be reached, the brief continued, there should be provision for settlement of differences by arbitration at the instance of either or both parties. It is difficult to see how this scheme could satisfy the Association's desire for procedures that would yield clear-cut results. All it seems to do is ask for negotiation or arbitration of issues between the Association and the Civil Service Commission with the understanding that the Commission would, in turn, recommend to the Government in accordance with the outcome of this process. There is nothing to assure the civil servants that the Commission's recommendations would be implemented immediately, if at all. It appears that the Association was so preoccupied with the formal legal status of the Government that it did not conceive of a more direct form of negotiation or arbitration. Yet, it had only to examine the reasons for the relative success of staff relations in Saskatchewan and Alberta to realize that the essential ingredient was the directness of negotiation or consultation between the representatives of the Government and those of the associations. It would seem that if the Ontario Association wishes to have a truly independent Commission it should seek to bypass the Commission and hold direct negotiations with the Government on matters relating to the conditions of employment. In this event it would be necessary to exclude such matters from the purview of the Commission, as is done in the United Kingdom. On the other hand, if the Association prefers to negotiate with the expert personnel of the Commission, it should insist that the Commission play the direct role of bargaining agent for the Government. In any case, negoti271

ONTARIO

ations make sense only if the negotiating parties are able to implement the agreements they reach. Although the Association failed to present a positive programme, it continued to express through its leaders a growing dissatisfaction with existing procedures. This study is not concerned with the substance of claims and counter claims on questions of salaries, hours of work, or group insurance plans. Whether or not the Association was justified in seeking salary increases or cash payment for overtime work is beside the point. What is important is the way in which decisions about these problems have been reached. As long as Ontario civil servants were satisfied with the rate of improvement in their material conditions, they remained quite unconcerned about the form of their relationship with the Government. But when, after 1956, they began to feel that their position relative to civil servants in other provinces was slipping, they began to question the effectiveness of the prevailing methods of communicating with the Government. The tone of complaint grew sharper. The President of the Association, in a message published in the March 1959 issue of their journal, questioned the good faith of the Government in its dealings with the Association: We seek opportunity, not protection; a future, not security; merit, not patronage; action, not promises; realistic attitudes, not outworn platitudes.16

A subsequent issue carried an editorial with the heading "The Road 'Downhill' is Paved with Good Intentions." On February 4, 1959, the Association had written to the Premier expressing its disappointment 16. The Trillium, March 1959, p. 2.

272

THE QUEST FOR NEGOTIATION

with the Government's inaction on a number of outstanding issues: More and more are our members being forced to acceptance of the unpleasant conclusion that the apparent good will of the Government toward the Association as their acknowledged representative, is no more than a mask for indifference and high disregard for any representation however well justified.'? The letter to the Premier apparently went unanswered. On March 2 another letter to the Premier informed him that the Association, under the pressure of its membership, would hold a mass meeting in Toronto on Sunday, March 22. The purpose of the meeting would be to bring the members up to date on the issue of negotiations with the Government. The meeting attracted a large number of civil servants. The theatre that had been rented for the occasion was filled. Filled, too, was a large hall in a nearby hotel that had been "hooked-up" to hear the proceedings in the theatre. Although the majority of civil servants attending were naturally from the Toronto district, there were also representative delegations from most of the branches outside of Toronto. As could be expected, the mass meeting both reflected and generated a mood of militant dissatisfaction with things as they were. The speakers, caught up in the mood, castigated the Government for the inadequacy of existing procedures and demanded nothing short of full collective bargaining. They were supported by resolutions which were passed without dissent. It is noteworthy that the "bread and butter" issues were rele17. The Trillium, April 1959, p. 4.

273

ONTARIO

gated to second place. The Vice-President of the Association declared: At present, priority has been given in the following order: free collective bargaining, proper regulated grievance procedure, and then salary revision in line with the Association presentation.18

Others spoke in the same vein. The main resolution of the evening instructed the Board of Directors to make the achievement of collective bargaining rights the primary objective of the Association. The mass meeting was a heady affair. It was not surprising that some members had second thoughts on the morning after. The meeting received widespread publicity. Its implications were the subject of speculation and of conflicting views. The Toronto Daily Star, for example, supported the general objectives of the Association and suggested that Ontario civil servants were "displaying the same militant mood which had preceded by a year or two the refusal of the B.C. government to grant such demands." A number of civil servants openly criticized the technique of the mass meeting. One letter implied that the Association had come under the influence of a radical and hostile element whose "unsavoury methods" were giving the civil service a bad name. There was at least one resignation on the specific issue of the meeting. But the membership as a whole seemed to be behind its leaders. The President's message published in the June issue of The Trillium discussed a number of questions that had arisen in the wake of the meeting. There was some feeling that the militant stand of the Association pres18. The Trillium, May 1959, p. 12.

274

THE QUEST FOR NEGOTIATION

aged possible strike action. The President made it emphatically clear that such action had not been and was not being contemplated. He declared, however, "This does not rule out the possibility of strike action being seriously considered if conditions were to become intolerable, and the membership of the Association in a free expression of opinion by ballot considered it a necessary step."19 Ontario civil servants received a general salary increase in October 1959, and the turbulence of the spring months gave way to a period of relative calm. But it is only a surface calm. The issue of negotiating procedures remains very much alive and threatens periodically to blow up a storm. An editorial which appeared in The Trillium before the Association's 1960 convention warned members that the time was fast approaching when they would have to make a choice between a soft or a hard approach to the Government on this issue. The editorial left no doubt of its view that the Government could be moved only by a tough policy. Another question which the President touched on is likely to become more important as, and if, the Association acquires a collective bargaining status. This has to do with the relationship within the Association between the more senior civil servants in professional and supervisory fields and all other civil servants. At present the Association is open to all members of the provincial Government service. But the normal practice in labour relations is to draw a line between the management and staff sides. The Association appears to 19. The Trillium, June 1959, p. I.

275

ONTARIO

be most anxious to keep its membership intact even as it achieves new negotiating procedures. Thus, it argues that all who come under the Public Service Act and its Regulations, either directly or indirectly, should be represented by the Association. This is the reason why the Association, in seeking collective bargaining, insists that this should be accomplished by the amendment of the Public Service Act rather than the Labour Relations Act which excludes managerial personnel from its application. It is difficult to see how, in the long run, the Association will be able to reconcile the attitudes, interests and functions of senior civil servants with the exigencies of collective bargaining. Affiliation The Civil Service Association of Ontario is not at present affiliated with the Canadian Labour Congress, but the subject is on its agenda. It may be suggested that the action which is finally taken will depend a good deal on the outcome of present difficulties in staff relations. The issue has been under consideration for more than five years, and it seems that the degree of interest in it has varied with the general mood of the Association. Indeed, an official of another provincial staff group has intimated to the writer that the Ontario Association had, in the past, successfully used the threat of affiliation with the trade-union movement as a means of extracting concessions from the Government. He suggested, however, that this tactic had reached a point of rapidly diminishing returns. Be that as it may, it is interesting to trace the development of the policy on affiliation. 276

AFFILIATION

The issue of affiliation came up in the early 1950's, and at one point the executive of the Association took a vote among the members seeking their views on the problem. A majority of those who returned their ballots favoured affiliation, but at the subsequent annual meeting the delegates did not approve such a move on the grounds that those who voted for it were not in fact a majority of all the members. Sporadic resolutions from branches and letters from individual members sought the reopening of the question. In 1955, as a result of considerable pressure, a committee of the executive was set up to study the matter; and, as a result, a programme of education on the advantages and disadvantages of affiliation was directed to the membership at large. At the annual meeting in 1956, the committee recommended that no action be taken for the time being. The merger of the labour movement to form the Canadian Labour Congress had taken place in April 1956. Since the Association had been thinking in terms of affiliating with the Trades and Labour Congress, the committee felt that some time should be allowed to elapse to see what course the newly formed Congress would follow. At the 1957 meeting of the Association, however, there was a lengthy debate on the subject, and it was decided to hold a referendum before the next annual meeting. The main argument for affiliation was that it would strengthen the hand of the Association in its dealings with the Government and bring the realization of collective bargaining closer. The main arguments against were, first, that the special status of civil servants was not compatible with general trade-unionism and, second, that it would lead to the withdrawal of many 277

ONTARIO

professional and executive civil servants from the Association. The referendum did not take place. The decision not to hold the ballot was taken by the Board of Directors who met in May 1958, following a report by the Committee on Education and Information. The decision seems to have been a strange one in the light of the clear-cut resolution passed at the 1957 Annual Meeting: Be it resolved that the Civil Service Association of Ontario conduct a vote by ballot among its membership regarding affiliation with the Canadian Labour Congress, at a date prior to the next annual meeting after an educational programme.2°

The reasons of the Board of Directors for not carrying out the instructions of the Annual Meeting were twofold. The "educational programme" had apparently been unsuccessful. Apathy on the issue was widespread. "Almost all directors have been forced to report to the Board that in their travels they have met with either negligible, and negative, interest; or none at all."2' The second reason was a more weighty one. It pointed out that the decision of the Canadian Labour Congress at its 1958 convention to consider a new course of political action through the sponsorship of a political party had put the matter of affiliation in a new light. Even associations that had long been affiliated with the Congress were reexamining their position. 20. Proceedings of the Annual Meeting of the C.S.A.O. 1957, p. 170-1. (My italics.) 21. The Trillium, July 1958, p. 2.

278

AFFILIATION

The action of the Board of Directors was sustained at the annual meeting of the Association in 1958. The matter was discussed in connection with the report of the Education and Information Committee, and there were no new resolutions. Writing after the mass meeting of March 22, 1959, the President of the Association asserted that the time to reconsider affiliation was not yet ripe: "However, the Association is not opposed in principle to affiliation with our fellow citizens in organized labour. Nor are we unmindful of the many benefits that have been brought about by the organized labour movement."22 The Civil Service Association of Ontario was one of the founding members of the Canadian Council of Provincial Employees Associations in 1945-46, and continues to give it strong support. The Council, however, has been mainly a clearing house for information and a forum for the general exchange of views; and the doubts of some associations about the wisdom or propriety of seeking or maintaining an affiliation with the Canadian Labour Congress at the present time has led them to look for a more acceptable form of nation-wide organization. The Ontario Association is closely connected with the effort to establish such a body in the form of the Canadian Federation of Government Employee Organizations.

22. The Trillium, June 1959, p. 1.

279

Chapter XI BRITISH COLUMBIA The British Columbia Government Employees Association (B.C.G.E.A.), the youngest of the provincial civil service associations west of Quebec, is, by virtue of its experience, the most militant. Its membership of 11,084 (February 1959) represents about 76 per cent of all employees on the payroll of the province. The percentage of potential membership is somewhat higher since not all on the public payroll are normally considered eligible. The Association was founded in May 1943 when representatives from six regional centres met in Vancouver to form a Council of Provincial Employees. The Council was formed on a federated basis allowing the associated branches very wide autonomy; but it was soon felt that this loose form of organization was inappropriate for dealing with the internal problems of the relationship between branches and over-all administration. In February 1944, a convention of delegates from twenty-four branches reconstituted the organization as the British Columbia Government Employees Association. The new constitution provided for a single, centralized organization operating through branches or locals. By October 1944, the new Association had found it necessary to employ a full-time staff to look after its affairs. The early years were years of growth and consolidation, during which the relationship with the 281

BRITISH COLUMBIA

Government was fairly friendly and the Association was apparently satisfied with its progress. It was able to play a part in the periodic reclassification of positions; it made successful representations to have the cost-ofliving bonus, which had risen to 43 per cent in 1952, incorporated in the basic salary scales; and it considered itself to have been instrumental in bringing about a number of general salary adjustments and basic improvements in fringe benefits. Relations between the Association and the Government began to deteriorate, however, after 1952. A very general reason for the changed atmosphere suggests itself. From 1941 to 1952, the province had been governed by a coalition of parties. The very nature of coalition government makes it especially sensitive to the representations and pressures of organized groups, and the Association apparently benefited from this situation. In 1952, however, the Social Credit Party won twenty-eight out of the fifty-two seats in the Legislative Assembly and formed the Government. The majority, slim though it was, strengthened the Government's hand in its dealings with the staff association; and the period from 1952 to 1956 saw a hardening of its attitude. After the election of 1956, which returned thirty-nine members of the Social Credit party, relations between Government and staff took a very sharp turn for the worse. In all probability, a secondary factor also affected the course of events. During the 1952 election campaign there were charges that the Association had been "meddling" in politics. As part of its programme of "political education," the Association had circulated questionnaires among the candidates of all parties 282

THE CIVIL SERVICE ACT

canvassing their views on a number of issues. The answers to the questions (or the fact that they were not answered) were subsequently made public. The Association asserted that its action was neutral; that it was part of a programme of providing information on the basis of which civil servants, as citizens, could vote with intelligence and responsibility. The rancour generated in the 1952 election persisted for some time, however, and coloured the early relationship between the Association and the new Government. The Civil Service Act The British Columbia Civil Service Act' contains a number of provisions that have a direct bearing on staff relations. Section 70 allows an employee or his representative to apply to the Commission "for a review in respect of any decision or matter affecting him in which the Commission has authority." (My emphasis.) If the employee is not satisfied with the decision of the Commission, Section 71 of the Act allows him an appeal to the Lieutenant Governor in Council. Section 72 provides for the recognition of an association "in which a majority of the employees are members in good standing . . . as the representatives of the employees for the purpose of discussing any matters affecting their general welfare and conditions of employment." In cases where an appeal to the Lieutenant Governor in Council is made by an individual, or where representations are made by an association, Section 74(1) allows that "the Lieutenant-Governor in Council, instead of hearing the appeal or representations, may 1. Rev. Stat. B.C., 1948, Chap. 51.

283

BRITISH COLUMBIA

direct that the appeal or representations be heard by a Board of Reference." However, the regulations governing the constitution and appointment of a Board of Reference may be made only by the Lieutenant Governor in Council. Also, on receiving the report of such a Board "the Lieutenant-Governor in Council may take such action thereon as he thinks proper." (Sec. 74(5)) It is evident that the elaborate provisions for appeals and representations are dependent ultimately on the absolute discretion of the Government. Now, it may be argued that this is a necessary legal (or formal) requirement in our constitutional context. But we will see that the fullest and, at times, most arbitrary exercise of this discretion in practice is the chief source of difficulty in the relations between the Government and the Association. In its elaboration of the merit principle, the British Columbia Civil Service Act seems to be more advanced than similar acts in other provinces; like the federal Act it vests the power of appointment wholly in the Civil Service Commission. The value of this provision is, however, offset to some extent by the limited independence of the Commission. The Commission consists of three members appointed by the Lieutenant Governor in Council: the Chairman, who is a full-time appointee charged with the executive direction of the Act, and two part-time members appointed from the ranks of senior civil servants. At the present time, these are two of the senior deputy ministers. It would seem that the recommendations of the Commission could not but be influenced by the primary loyalties of the deputy ministers who serve on it. In addition, there is no provision for security of tenure on the Commission. 284

THE ISSUE OF NEGOTIATION

Section 3(lc) of the Act states that the Chairman "shall have the status of a Deputy Minister," and section 9(2) states that a deputy minister "shall hold office during pleasure." The Civil Service Act follows the general pattern of charging the Commission with the responsibility for making recommendations with respect to methods of administration, departmental organization, and salary scales. The disposition of these recommendations is left entirely with the Government. The practice of consultation between classification officers of the Commission and representatives of the Association on comparable outside salaries is well established, but the actual recommendations to the Government are entirely confidential. There is no formal provision for joint consultation in the public service of British Columbia. For a few years before 1952, a subcommittee of the Cabinet and the Association used to meet periodically to discuss problems of mutual concern. The practice apparently had only a limited success, and it lapsed when the Social Credit Party came to power in 1952. A recent offer of the Government to revive this subcommittee was received with scepticism by the Association. The Issue of Negotiation That the issue of collective bargaining for civil servants was a live one before 1952 is made evident in the Report of the Industrial Conciliation and Arbitration Inquiry Board of that year. This Board was created by an act of the Legislature to study the labour relations legislation of the province and to make whatever recommendations it considered proper. The five 285

BRITISH COLUMBIA

members of the Board were all members of the Legislative Assembly. The Board did not issue a unanimous report, but there was complete agreement on the need for effective negotiating procedures in civil service staff relations. Thus, the majority report declares: The Board recommends that the Lieutenant-Governor in Council afford the authorized representatives of all British Columbia Government employees facilities to negotiate salary adjustments and working conditions. It is further recommended that in the event of a settlement not being reached, the matter be referred to arbitration?

The first of the two minority reports reiterated this recommendation. The second went even further in urging "that employees of the Crown, whether employed directly or by a corporation or other body set up by the government, should be allowed the right to use the provisions of the Act (i.e. Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, Ch. 155)."3 The Board reported in February 1952, but its recommendations were not implemented. The actual state of affairs in the public service of British Columbia can, perhaps, best be grasped by studying significant events since the end of 1956. These include the threat of a strike in 1957, hearings before a Board of Reference in 1957 and 1958, and an actual strike in the spring of 1959. Unfortunately, in describing the events, the main reliance must be on Association sources such as circular letters, briefs, and reports. The Government, while drawing its own conclusions and making its own judgments, has not disputed 2. Report of Industrial Conciliation and Arbitration Inquiry Board, Victoria, 1952, p. 17. 3. Ibid., p. 2S.

286

THE STRIKE THREAT

the main facts as presented by the Association; nor has it presented its own version of the facts. The report of the General Secretary to the 14th Annual Convention of the Association, held in October 1957, gives a good factual account of developments earlier that year. In December 1956, the Association presented a brief to the Government requesting the implementation of six major resolutions passed at its preceding convention. These dealt with salaries, collective bargaining, the forty-hour week, superannuation, vacations, and overtime. The Government did not reply to the brief. The only communication received by the Association was a letter from the Provincial Secretary on March 25, 1957, indicating that the Government had decided to appoint a committee to study the Superannuation Act. When the session of the Legislature came to an end on March 29, 1957, and it was obvious that no provision had been made to meet any of the requests, the Association reacted strongly. A meeting of the executive body directed its officials to seek an interview with the Provincial Secretary in order to determine the Government's intentions. A letter was sent in early April, and the meeting was arranged for the end of the month. The Provincial Secretary stated that he could give no information on the Government's policy with respect to the representations of the Association. A letter of May 3, requesting the Premier to hold an early meeting with representatives of the Association was not answered. The Strike Threat In the meantime, pressure for more drastic action was growing within the Association. General meetings 287

BRITISH COLUMBIA

in a number of large branches endorsed resolutions condemning the Government "for unfair labour practices" and recommended the holding of a referendum on possible strike action. The President of the Association addressed a personal appeal to the Premier to take note of the unrest in the civil service and urged him to make some material concession by authorizing immediately salary increases in a number of particularly clear-cut categories. The Premier did not reply to the substance of the letter but invited the President to a meeting on May 23. At the meeting the President expressed his concern about the situation and suggested that it could be improved by frank two-way discussions between the Government and the Association. On this point, the President reported, "the Premier took the position that the Government regarded the Association in the same manner as any other pressure group such as a local Board of Trade or Chamber of Commerce."4 While this situation was developing, a separate issue involving 148 stationary engineers came to a head. The previous session of the Legislature had made provision for pay increases to the stationary engineers, but the Government had not yet seen fit to put them into effect. The engineers demanded that the Executive of the Association take this matter up with the Government. When the Executive reported that its efforts to secure the increase had failed, the engineers' committee requested that a strike vote be taken among the engineers immediately. The Executive acceded to this request, and the engineers went ahead with their vote. 4. Proceedings of the Fourteenth Annual Convention of the B.C. Government Employees Association, p. 37. This and the following quotations are from the report of the General Secretary.

288

THE STRIKE THREAT

At the same time the Executive, responding to the mood of the Association as they perceived it, decided that a strike vote should be taken in the Association as a whole "to determine how far they were prepared to back up their requests for decent wages and working conditions."5 A campaign of public relations followed, explaining the reasons for the action. The decision to take a strike vote had been made on May 24. On May 27, a letter to the Premier requested a meeting with the Cabinet as soon as possible to deal with the grave situation. On June 14, a reply came from the Provincial Secretary, and a meeting was arranged for June 21. Meanwhile, the stationary engineers had voted. The ballots were counted on June 10, and 138 of the 143 favoured a strike; a deadline was set for June 26. On June 14 the Association had called on the Minister of Public Works to arrange an immediate meeting with the Government in an effort to avoid the strike. This meeting took place on June 18, and at this time the Premier announced that the Order in Council granting the wage increases for stationary engineers had been approved. The strike was thus averted, but the moral of this sequence of events was not lost on the general membership. When their strike vote was counted on June 29, it showed that more than 90 per cent (9,659) of the members had voted, and, of these, 89.2 per cent (8,618) had favoured strike action. Prior to the meeting with the Cabinet on June 21, the Premier was reported in the press to have stated that the Government was prepared to grant a general 5. Ibid., p. 38.

289

BRITISH COLUMBIA

salary increase of 6 per cent. No such offer, however, had been conveyed officially to the Association. At the meeting, the representatives of the Association presented a brief requesting a general increase based on "fair comparison" with outside industry, collective bargaining procedures, and a maximum forty-hour week for all government employees. The Premier did not respond directly to the Association's requests. He stated that "the Government was prepared to consider recommending a 6% general wage increase to the next session of the Legislature."6 On the question of collective bargaining, he suggested the revival of the Cabinet-Association committee "provided the Government was assured of the Association's cooperation." There was also an unresolved discussion on the question of retroactivity. After the meeting the Association wrote to the Provincial Secretary requesting a written outline of the Government's proposal in order that they might give it more careful study. This request was declined on the grounds that it was not Government policy to write letters to organizations. When the results of the strike vote became known on June 29, the Executive of the Association decided to reject the verbal proposals of the Government. The Premier was asked to reconsider the three main demands of the staff and to reply directly to the Association rather than through the medium of press and radio. A letter from the Provincial Secretary, delivered by messenger on July 5, in effect failed to meet the Association's position. The Association set a strike deadline for 7:00 A.M. on July 12. In the meantime it 6. Ibid., p. 39.

290

THE STRIKE THREAT

urged renewed discussion with the Cabinet in an effort to avert the strike. Relations between the Association and the Government now became extremely tense. Officials of the Department of Finance (the Premier's department) received circular letters threatening dismissal for participation in the stoppage. Supervisors were asked to reveal their own intentions as well as those of their subordinates so that replacements could be made where necessary. The Association, for its part, apparently angered the Government when it suggested a meeting to work out a plan for maintaining certain essential services in the event of the strike. Some ministers, it seems, felt that any such consultation would be tantamount to giving recognition to something in the nature of a revolutionary junta. The Association at this stage dropped its claims for wage increases and the forty-hour week, and made the establishment of bargaining procedures with provisions for ultimate arbitration the primary issue. It was willing to leave the other matters to the determination of an arbitration tribunal under the chairmanship of a senior judge. On July 8 the Association received a telegram from the Provincial Secretary agreeing to a meeting between the Cabinet and the Association on the afternoon of July 10. After a preliminary review of staff relations in the province, the Premier made two specific counter proposals. First, there was to be a 7.5 per cent increase in the total payroll with the exact allocation of the increase to be determined by consultation between the Civil Service Commission and the Association. The rationale for the 7.5 per cent was that the lumber industry in the province had just granted a similar 291

BRITISH COLUMBIA

increase as a result of a dispute with its union, mediated by the Premier himself. Second, the Premier stated that an Order in Council had just been approved setting up a Board of Reference to examine the Association's request for bargaining and arbitration procedures. The Chief Justice of the province was to be the one-man Board of Reference. When asked for assurances that the recommendations of the Board would be adopted, the Premier was said to have replied that "the Government would be prepared to recommend the Chief Justice's recommendations to the next session of the Legislature."7 The Association's Negotiating Committee requested a short adjournment of the meeting in order to study the Government's proposals. The Committee returned with two conditions. First, it asked for reassurance that the "Chief Justice's" recommendations would be recommended to the next session of the Legislature. Second, it requested that the Board's terms of reference be expanded to include non-civil servants such as employees of the Liquor Control Board and outside staffs of the Department of Highways and the Forest Service. The Premier apparently acceded to these conditions, and the Negotiating Committee agreed to recommend the acceptance of the proposals. The proposals were accepted by the Association's Executive, and the strike did not take place. The Association regarded the settlement as a victory and a justification of the militant stand it had taken. In reply to a telegram from one of the branches asking what it should do with the placards and other strike materials that had been prepared, the answer was: 7. Ibid., p. 41.

292

THE BOARD OF REFERENCE

"Don't throw them away. We hope we will never need them, but you never can tell."8 The Board of Reference The Association, quite understandably, considered the establishment of the Board of Reference as the outstanding gain in its efforts to achieve more effective negotiating machinery. It had the greatest respect for the Honourable Gordon McGregor Sloan, the Chief Justice of British Columbia. It felt that the terms of the Board were sufficiently broad to allow for the recommendation of a modified form of collective bargaining. And it was confident in the strength of its case. Yet, in retrospect, one may wonder about the grounds for the Association's optimism. The Order in Council of July 9, 1957, No. 1683, is a masterpiece of vagueness and ambiguity. It refers to representations made to the Executive Council (i.e. Cabinet) for alterations in "existing arrangements prescribed by and under the `Civil Service Act' for the disposition of questions affecting the general welfare and conditions of employment of persons in the service of the Crown." It then expresses the belief of the Executive Council that "it would be in the public interest to have such arrangements examined in the light of Canadian constitutional practices governing responsible government." Finally, the Order recommends the appointment of Chief Justice Sloan "to constitute and be a Board of Reference to receive and examine representations for the alteration of the 'Civil Service Act' and procedures thereunder and to report thereon pursuant to the pro8. The Provincial (official journal of the B.C.G.E.A.), August 1957, p. 8.

293

BRITISH COLUMBIA

visions of the Statute, and to recommend to the Executive Council improvements, if any, which may be made in existing arrangements consistent with Canadian constitutional practices." The full significance of the carefully worded Order in Council began to unfold soon after the Board started its work. The first meeting with Chief Justice Sloan took place on July 18, one week after the settlement of the dispute. The Attorney General of the province acted as the Government's spokesman. The judge suggested that the parties hold a series of informal meetings to explore the possible areas of agreement, thus leaving as few issues as possible for the determination of the Board of Reference. He set the date of August 12 for the resumption of formal proceedings of the Board and stated his desire to have the subject matter of the reference concluded by the end of August 1957. The Association met with the Attorney General on July 23, and a general discussion of the issues took place. The Association undertook to prepare a memorandum setting forth its objectives to serve as a basis for more concrete discussion at the next meeting. This was forwarded to the Attorney General. A series of delays ensued. The meeting with the Chief Justice that had been planned for August 12 did not take place until August 21. The Association reported that while there had been a number of discussions with the Attorney General there was as yet no concrete statement from the Government Side. The Judge suggested that the Association's memorandum of objectives be placed before the Cabinet at an early date so that the Government's position could be made more clear. The next meeting with Sloan was, set for September 3. 294

THE BOARD OF REFERENCE

The Association's memorandum of August 2 had set forth seven objectives. The first three were by way of preamble. They called for the establishment of an appropriate employer-employee relationship; the right of free association; the right of collective bargaining. The fourth objective was more substantive. It asked for a regulated bargaining procedure based on negotiations "with the employer, or his duly appointed representative . . . and failing satisfaction, the right of either party to refer any proposed condition of employment or change in existing conditions of employment which has become a matter of dispute at will between the parties to a Board of Arbitration comprised of a representative of each party, together with an impartial Chairman to be agreed upon by the parties, and failing agreement, said Chairman to be appointed by the Chief Justice of the Province of British Columbia." The fifth objective was a definite collective bargaining agreement, "an appropriate instrument for a term certain." The sixth was for notice of proposed changes in the agreement within a certain period before its termination. The seventh asked for the provision of a grievance procedure within the terms of the agreement, culminating, if necessary, in arbitration. The meeting with the Chief Justice on September 3 produced nothing concrete. The Attorney General was reported to have said, however, that the Cabinet had considered the objectives of the Association and that it had, broadly speaking, agreed to the main ones (viz. nos. 4 and 7). Before the meeting was over, the Attorney General agreed to submit a written statement of the Government's position. The statement was in the form of a letter, dated September 13, 1957, to the 295

BRITISH COLUMBIA

Chief Justice, with a copy to the Association. The letter implied that the only real points at issue were objectives 4 and 7 of the Association. It therefore ignored the others. On objective 4 the letter stated that "on questions of general welfare at issue between the Association and the Civil Service Commission, the Executive Council have no objection to such issues being referred to a Board of Reference by way of appeal, whose views in turn would be presented as a matter of advice to Treasury Board." On objective 7, it declared that in matters of disputes "between the Association and the Civil Service Commission arising out of the application of conditions of employment, the Executive Council feel that such disputes should be resolved by a Board of Reference whose views on such matters would be binding on the parties to the dispute." The letter also dealt with a number of other issues which, while important, need not concern us. However, a remarkable paragraph followed the summary of the Government's position. It implied that everything had been settled: "I am hopeful that the foregoing matters agreed to in principle may be implemented by amendment of existing regulations. Amendments to this end are in the course of preparation." With the wisdom of hindsight, one may wonder how the Association ever came to the conclusion that the Government had met its claims as put forward in objectives 4 and 7 of its memorandum. To be sure, the Association was not at all satisfied with the Attorney General's letter. It felt that the key issue of a periodic collective agreement which had been projected in its 9. Copies of correspondence relative to the Board of Reference were published in a series of circular letters issued by the Association.

296

THE BOARD OF REFERENCE

objective 5 had been ignored. The Government's legalistic argument that such an agreement between the Government and the Association would be inconsistent with constitutional practice was rejected by the Association's spokesmen. But the Association did believe that progress had been made on the issue of negotiation and arbitration as set out in its memorandum. Yet a careful reading of the Attorney General's letter suggests not the slightest concession to the Association on objective 4; and, in the case of objective 7, the apparent concession would be quite meaningless in the absence of a collective bargaining agreement. The Association's memorandum had requested negotiations with the employer or his duly appointed representative with a provision for binding arbitration. The Attorney General referred to questions of "general matters of welfare at issue between the Association and the Civil Service Commission." The Commission is not a representative of the Government; it is the body charged with the administration of the Civil Service Act, having very little authority of its own and none to commit the Government. Referring points at issue to a Board of Reference by way of appeal was already provided for in Section 74 of the Civil Service Act. The Attorney General merely implied that the Government's discretion in referring an appeal to a Board of Reference might be removed. As for the report of the Board, it "would be presented as a matter of advice to Treasury Board." It is useful to recall at this point that Section 74(5) of the Civil Service Act allows the Government to take any action it deems proper. This was hardly the kind of arbitration procedure projected by the Association. 297

BRITISH COLUMBIA

The Association wrote to the Attorney General on September 19, suggesting that there was still a great deal to be discussed before the area of agreement could be delineated. It asked that all its objectives, not just 4 and 7, be placed before the Cabinet. It also opposed the Government's claim that all supervisory personnel be disqualified from membership in the Association. The Attorney General's reply of September 29 apparently sidestepped these issues and conveyed the assumption that agreement in principle had been reached: Prior to leaving for Europe I have had the opportunity of examining several drafts prepared by Legislative Council [?] along the lines of my letter of September 13th to the Honourable the Chief Justice and have found so far that the draftsmanship does not precisely embrace the principles involved. I have asked Legislative Council [?] to give further revision to his work and send me a copy to Europe. If the next draft is satisfactory I have asked Mr. Cross to discuss it with you.'° The Association was perturbed by this letter. The Attorney General had not only ignored the various objections raised by the Association, but suggested that a few amendments to existing regulations which could be made by Order in Council would produce the formal negotiating relationship desired by the public servants. Whatever the form of final arrangements, the Association expected that it would be provided for by statute and not be left to the discretionary device of regulations. 10. Reported in B.C.G.E.A. Circular Letter of November 6, 1957. The error in spelling "Counsel" may have been the fault of the person who typed the circular letter.

298

THE BOARD OF REFERENCE

The absence of the Attorney General in Europe caused an hiatus in the work of the Board. The next meeting before the Chief Justice took place on December 19. On the question of statutory amendments as against new regulations, the Chief Justice expressed "the view that the Association should be entitled to the benefit of the natural protection which would result from amendments to the legislation." On the principle of contractual agreement as it operates in private labour relations, the Attorney General reiterated the firm view that the Government should not be bound by a collective agreement. He concluded with the reminder that such an arrangement would be inconsistent with Canadian constitutional practices. The informal meetings before the Board of Reference had reached a complete deadlock, and the Chief Justice advised the parties that the unresolved issues could be aired in formal public hearings if the Association desired it. The Association did desire it and preliminary steps to set the hearings in motion were taken. In the meantime, Chief Justice Sloan had been appointed special adviser to the Government on forestry matters as a result of a scandal involving a Cabinet minister. This necessitated his resignation as Chief Justice. The Association requested, however, that he continue as the Board of Reference. The first public hearing had been scheduled for April 17, 1958, but on March 31 Sloan announced his resignation from the Board of Reference because his new duties had made it impossible for him to carry on. It was not until May 9, that Professor Carrothers of the Faculty of Law of the H. As reported in B.C.G.E.A. Circular Memorandum of January 27, 1958.

299

BRITISH COLUMBIA

University of British Columbia was appointed, by mutual agreement, to succeed Sloan as the Board of Reference. There was an inevitable delay in arranging the hearings while Professor Carrothers acquainted himself with the course of developments. The first public hearing was set for July 16. A year had passed since the Board of Reference had been set up, and the early optimism of the Association that a period of good relationships with the Government had been ushered in gave way to disappointment and bitterness. "The present situation is worse than ever before" declared an editorial in the July 1958 issue of The Provincial. Letters to the Premier and other Ministers remained unacknowledged and unanswered: We are told we are regarded as "only another pressure group." Our representatives seldom receive the courtesy of a reply. The Premier has told us "if you hear nothing, the answer is 'no'. If the answer is 'yes' you will read the announcement in the Press."12

The Association Executive instructed its branches to hold special meetings to discuss the situation so that the Executive could be guided by the opinions of its members in future dealings with the Government. The Public Hearings before the Board of Reference began in July and continued intermittently until November. The Association presented an array of constitutional authorities as witnesses in support of its claims: F.P. Varcoe, Canada's Deputy Minister of Justice and deputy Attorney General from 1941 to 1957; F.R. Scott, Professor of Law at McGill University; F.C. Cronkite, Dean of Law at the University of Sas12. The Provincial, July 1958, p. 2.

$00

THE BOARD OF REFERENCE

katchewan; Eugene Forsey, Research Director of the Canadian Labour Congress and a writer on constitutional issues. These experts maintained that the collective bargaining procedures put forward by the Association were in no way "inconsistent with Canadian constitutional practices." The Government's line had already been developed in the informal sessions with Sloan when the Attorney General suggested an interpretation of the phrase "consistent with Canadian constitutional practices." He implied that it could only mean consistent with customary practice in other parts of Canada. During the public hearings, the Government's counsel, in cross-examining one of the Association's witnesses suggested that the wording of the Order in Council "might imply customary or usual practices in other jurisdictions."" This had the effect of transforming what appeared to be a complex legal issue into a simple statistical one. The witness (Dean Cronkite) replied that "collective bargaining with the `Crown' was a common practice in both the federal service and many provinces, in that most crown companies . . . had collective bargaining agreements. In his opinion, there was no distinction in principle between being employed by the Crown in a crown company, and being employed by the Crown as a civil servant."" It is noteworthy that the Government presented only one witness in the public hearings—the Chairman of the British Columbia Civil Service Commission. His evidence was essentially a description of the Civil Serv13. Reported in The Provincial, October 1958, p. 13. 14. Ibid.

301

BRITISH COLUMBIA

ice Act and the functions of the Commission under it. After the appearance of this witness, the government counsel notified the Board that his case had been concluded. At the same time, he urged that Professor Carrothers consult with the Chairman of the federal Civil Service Commission in Ottawa about developments in federal staff relations which were then under intensive study. The Association questioned the propriety of such a procedure but conceded it on the understanding that only the Chairman of the federal Civil Service Commission would be consulted, and on the assurance that the Board's report would be submitted in time for consideration at the coming session of the Legislature. Strike Action While the Board of Reference was doing its work, the Association continued to make representations to the Government on various matters of concern to its members. The most important issue, of course, was that of salaries. In December 1957, the Association submitted a brief stating that government employees were still losing ground to other employee groups in the province. No reply was received. On June 3, 1958, the Association forwarded a second brief. It accused the Government of failing to implement some of the understandings reached with the Association in July 1957. It also protested the Government's failure to reply to the submission of December 1957. The tone of the brief was sharp, and it ended on a note of urgency: "The Association deeply regrets that the Government does not seem to be prepared to act except when an emergency is created." The brief demanded an answer on material points by July 7. Just before this 302

STRIKE ACTION

date, the Association received a letter from the Provincial Secretary clearing up one of the points at issue and leaving the impression that further advice on the other issues would follow. It apparently did not come, for the Association decided at the end of August to canvass the mood of its members. Reporting to the Fifteenth Annual Convention on October 10, 1958, the General Secretary declared: At the date of writing this report it is obvious to your General Secretary that the Government has exemplified a callous indifference to the matter of fair wages, in the Government Service. It is equally obvious that the Government will take no appropriate action as a result of normal representations and is inviting militant action by the Association.15

There was some response to the bitter tone of the General Secretary's report. The Premier informed representatives of the Association that the Government would ask for additional salary funds at the 1959 session of the Legislature. He urged them to continue discussions on salary scales with the Civil Service Commission, which would make its recommendations to the Government in due course. The discussions took place, and the procedure proved to be simple and straightforward. The Association presented a request for salary scales based on statistics gathered by its research officer. The Classification Division of the Commission countered with rates of pay derived from its own salary surveys. Agreement was apparently reached on most of the classifications, and the Association assumed that this would be reflected in the Commission's confi15. Proceedings of the Fifteenth Annual Convention of the B.C. Government Employees Association, p. 24.

303

BRITISH COLUMBIA

dential recommendations to the Government. On the basis of the informal agreement reached with the Classification Division, the Association calculated that the additional cost of the salary increases would be about $3,000,000. A meeting was sought with the Cabinet to discover what the Government intended to do, but the Association was advised to wait for the budget speech which was to be presented in about ten days. When the budget was brought down, it recommended the provision of $1,500,000 for salary increases. This was half of what the Association had expected as a result of its discussions with the officials of the Civil Service Commission. It was forced to draw one of two conclusions: either the negotiated recommendations had been scaled down 50 per cent or the carrying out of the recommendations was to be postponed from April 1, 1959, to October 1, 1959. The second conclusion seemed to be the more probable. The staff's claims would appear to be met in full; and, the recommendations having been put into effect less than six months before the presentation of the 1960 budget, it would be difficult for the Association to press for new increases. As it was, the Association considered the agreed rates to be based on 1958 salary surveys. Now the prospect was that these rates would remain in effect at least until April 1961. The Association tried, without success, to arrange a meeting with the Cabinet. The mood of 1957 was again in evidence. On February 19, in keeping with a mandate it had received at the previous convention, the Executive decided to hold a referendum among the members. Two questions were posed in the ballot. The first asked whether or not the members were satisfied 304

STRIKE ACTION

with the wage scales indicated by the budget. The second asked for authorization to take strike action. While preparations for the strike vote were under way, a new development took place and proved to be of decisive significance. Late in February, as a result of a "leak" to the press, it became known that the Board of Reference, established nearly two years before, had placed its report in the hands of the Government on January 10. The Association immediately tried to learn what the report had recommended and demanded that it be tabled in the Legislature in accordance with the understanding reached in July 1957. The Association's representations were ignored, and it seemed that the report would not see the light of day. The Government's refusal to make the Carrothers Report public suggested that the report favoured the employees' position. The refusal was also interpreted as evidence of the Government's lack of good faith. The strike ballots had already been distributed so that the issue of the Carrothers Report could not be directly voted upon. The Association reported, however, that branch meetings throughout the province had "passed resolutions demanding [that] the issue of bargaining rights still pending from the 1957 settlement be included in the current strike issue." Ballots were counted on March 7, and on March 8 the Executive decided that the heavy affirmative vote warranted strike action. A strike deadline was set for Friday, March 13, and the Government was so informed. The Association also requested a meeting with the Government. Before noon of the following day, the 16. The Provincial, April 1959, p. 5.

305

BRITISH COLUMBIA

Provincial Secretary dispatched a • telegram to the General Secretary of the.Association advising him that the Government would provide the necessary funds to make the wage recommendations of the Civil Service Commission effective April 1, 1959. The Association wanted to be sure that the recommended salaries were in fact those that had been agreed upon in the discussions with the officials of the Commission. This was ascertained by making the confidential report of the Commission available to the Association. The salary issue was thus settled—another victory for "militant action". But that was not the end of it. The question of bargaining rights, which had lain dormant during the period of investigation by the Board of Reference, became a major strike issue as soon as it was learned that the Carrothers Report "was being suppressed." The Executive decided that, in view of strong resolutions coming in from branches and in accordance with convention resolutions pressing for bargaining rights, it "had no alternative but to include the tabling of the report as a term of settlement of the current strike." This decision was questioned by some outside observers on the grounds that the strike vote was on the issue of salaries only and that the Executive should have sought a new mandate before calling a strike on the issue of bargaining rights. The work stoppage began at 7:00 A.M. on March 13. At 10:40 A.M. the Government obtained an injunction against the picketing of "any premises, buildings or places within the Province of British Columbia occupied or used by or on behalf of Her Majesty's Government of the said Province." 17. Ibid.

306

STRIKE ACTION

The Association ordered its members to return to work pending court action to have the injunction lifted. The injunction was kept in force until the Government rushed through an amendment to the Constitution Act itself, which prohibited the picketing of government buildings (but excluding the B.C. Power Commission, the Liquor Control Board, and the Pacific Great Eastern Railway). On March 31, the Association Executive declared the strike "concluded." Of some interest is the Government's explanation for the necessity of the amending legislation. A printed statement on the back of the bill which was submitted to the Legislature gives some insight into the Government's thinking: On Friday, the 13th of March, 1959, an unprecedented disruption occurred in the provincial public services. This event was called a strike—to borrow the parlance of industrial relations. It was in fact a taking over—a usurpation—by persons not elected or responsible to the public of the Province of the functions of government It is obvious that the Executive must ensure the continuation without interference or interruption of public services provided by the Crown in the right of the Province. This measure is intended to deal with such interference should it occur.18

The strike was over, but the issue which had precipitated it remained far from being solved. The report of the Board of Reference had not been submitted to the Legislature. The question was whether the Government had broken faith in not doing so. The General Secretary of the Association claimed that "the 18. Quoted in The Provincial, April 1959, p. 7.

307

BRITISH COLUMBIA

integrity of the Government" had been compromised. The Premier and Provincial Secretary maintained a strict silence on this point. The Minister of Highways, however, in a press interview on March 18, flatly denied that a promise had been made "to reveal contents of an inquiry into the proposal that civil servants have bargaining rights."19 It seems that, having made this denial, the Minister then implied that agreement to table the report had, in fact, been reached but that it was contingent on the report being written by the former Chief Justice: When the late Mr. Sloan was shifted to forestry matters, the enquiry was turned over to UBC Professor F.A. Carrothers. The government did not have the same confidence in Carrothers,' said Mr. Gagliardi 2a An editorial reacting to the Highways Minister's statement appeared in the Victoria Times of March 23rd. It declared that the Carrothers Report should have been "placed before the legislature and thoroughly ventilated." Quoting Mr. Gagliardi's reference to Professor Carrothers, it went on to say: If it [the Government] did not have sufficient confidence in Dr. Carrothers to reveal his findings, why did the Government turn the job over to him in the first place? And, having given him the assignment—an undertaking for which the public paid—why did it insult the public's representatives in the Legislature by denying them the right to study and discuss the report?

19. Victoria Times, March 19, 1959, as reported in The Provincial, March 1959, p. 9. 20. Ibid.

308

STRIKE ACTION

Mr. Gagliardi's insult to Dr. Carrothers is matched only by the Government's insult to public intelligence in the course it has taken.21

Yet, if we set aside the question of whether the Government had acted properly or wisely in this matter, it seems that on purely technical grounds the Government could claim that it was under no obligation to table the report. In the first place, there was no written communication from the Government to the Association committing itself to publishing and implementing the report. The Association attempted to extract a written agreement but was unsuccessful. In the second place, even the verbal "gentleman's agreement" which the Association alleges to have been reached was apparently so worded as to give the Government a technical escape hatch. The August 1957 issue of The Provincial reported that one of the conditions for the settlement of the threatened strike was the Government's undertaking "to be bound by the Chief Justice's recommendations." (My italics). The General Secretary's report to the 14th Annual Convention of the Association made this even more explicit. Describing the meeting of July 10, 1957, between the Association Negotiating Committee and the Cabinet, he said: The Negotiating Committee asked what assurance there would be that the Government would in turn be prepared to adopt the Chief Justice's recommendations. The Premier replied that the Government would be prepared to recommend the Chief justice's recommendations to the next Session of the Legislature.22 21. Ibid., p. 10. 22. Proceedings, p. 41. (My italics.)

309

BRITISH COLUMBIA

It was probably not foreseen at the time that the Chief Justice would not complete his appointment as the Board of Reference. It seems, too, that when Dr. Can-others was appointed in his place the Association did not consider it necessary to seek reassurance that his report would be recommended to the Legislature. It was thus possible for the Hon. Mr. Gagliardi to say that "agreement to publish the report on bargaining rights for civil servants was only made on the understanding that the late Hon. Gordon Sloan was to compile the report."23 This tendency to look for technical debating points imparts an air of legalistic unreality to staff relations in the British Columbia public service. On April 23, 1959, an unprecedented television debate took place between the Minister of Highways, Mr. Gagliardi, and Mr. A. C. Bennett, the Assistant General Secretary of the British Columbia Association. The debate gave no evidence that the parties were moving towards a reconciliation of their differences. The Minister's argument developed two themes. On the one hand, it stressed the many benefits that had been proffered the civil servants, implying that they were the result of the Government's paternalistic concern for its employees. He blandly overlooked the fact that much of this benevolence had been extracted from the Government by the collective pressures of its employees—pressures which included two threats of strike action. On the other hand, the Minister sought to discredit the leaders of the Association and to drive a wedge between them and the other members. He re23. Report of interview in the Victoria Colonist, March 19, 1959, as quoted in The Provincial, March 1959, p. 10.

310

STRIKE ACTION

ferred to the "so-called leaders of the organization" who had called the strike, and went on to say: "Now this strike was not called against working conditions or wages. . . . In my opinion it was called for political reasons only to satisfy a couple of power-hungry, arrogant leaders and to use the hard-working, honest, sincere civil servants as pawns in a game."24 The Association spokesman, to be sure, rejected the Minister's charges against its leaders. He reiterated the Association's position on the salary issue and criticized the Government's failure to discuss it until threatened with strike action. More emphatically, he questioned the Government's good faith in its failure to make public the findings of the Carrothers Report. The debate did nothing to alleviate the situation. If anything, its public character served to harden and sharpen the division between the contenders. There was a brief easing of tension in February 1960, when the Government announced in the Legislature that it would set up a permanent Board of Reference to hear claims of civil servants which could not be settled by "discussion and conciliation." Such a board had been envisaged in the Civil Service Act but had not come into effective operation. The Provincial Secretary expounded the policy in some detail: The Board of Reference, which will be set up by Order in Council, will be composed of three members. . . . The decisions of this Board in respect to references, which are within established policy, shall be final and binding on all concerned and shall be made public. The recommendations of the Board on matters affecting general welfare and con24. Verbatim report in The Provincial, June 1959, p. 3.

311

BRITISH COLUMBIA

ditions of employment involving initial decisions by the Government shall be referred to the Treasury Board.25 To be sure, the statement was careful to emphasize that on the substantive questions of conditions of employment the Government would not be bound by the Board's recommendations. It seemed, nevertheless, that the establishment of a quasi-arbitral body of this kind on a permanent basis might contribute to the improvement of staff relations. The Government even went so far as to name Dr. H. L. Keenleyside as chairman of the projected Board of Reference. Something, however, must have given the Government second thoughts, for the Order in Council to establish the Board was not passed until September 1961. A chairman has not yet been formally named. Affiliation and Check-off The British Columbia Association was affiliated until recently with both the British Columbia Federation of Labour and the Canadian Labour Congress. Its identification with the general trade-union movement was a close one, and this was probably one of the contributory elements in the rather tense atmosphere of staff relations. The Association saw its ties with central labour bodies as a source of strength and felt that they should be maintained and reinforced. Indeed, its General Secretary was one of the regional vice-presidents of the Canadian Labour Congress. When the Congress began to move towards a more direct participation in politics, some members of the Association expressed their misgivings. But the Association as a whole seems 25. Reported in The Provincial, January 1961, p. 5. (My italics.)

312

AFFILIATION AND CHECK-OFF

to have been reassured by the stated policy of the Congress, which recognized the imperatives of political neutrality in government employment. The issue was not allowed to rest, however. If the Association was unconcerned about the propriety of its continued affiliation with the Federation of Labour. the Government, apparently, was not. A press release on the morning of October 11, 1960, a few days after the conclusion of the Association's annual convention, announced that the Government had decided to revoke the payroll check-off of dues for the Association. A formal communication to this effect was received by the Association after the appearance of the news report. The telegram from the Provincial Secretary projected a picture of the Government as the defender of the rank-and-file civil servant: THE PROVINCIAL GOVERNMENT HAS ALWAYS DEFENDED THE RIGHTS OF ITS EMPLOYEES TO ORGANIZE FOR THE ADVANCEMENT OF THEIR LEGITIMATE INTERESTS. IT DEFENDS EQUALLY THE RIGHT AND DESIRE OF ITS EMPLOYEES TO HOLD THEMSELVES ALOOF FROM AFFILIATION, DIRECT OR OTHERWISE, WITH ANY POLITICAL PARTY. THE GOVERNMENT BELIEVES FURTHER THAT IT WOULD BE DERELICT IN ITS OWN DUTY IF IT CONTINUED TO PROVIDE ANY SERVICE WHICH MIGHT CONTRIBUTE TO OR IMPLY APPROVAL OF SUCH AN AFFILIATION. AFTER EXTREMELY CAREFUL CONSIDERATION THE GOVERNMENT HAS DECIDED THEREFORE THAT THE PAYROLL CHECK-OFF OF DUES PAID BY MEMBERS OF THE GOVERNMENT EMPLOYEES ASSOCIATION WILL BE DISCONTINUED IMMEDIATELY.26

It goes without saying that the Government's decision was a completely unilateral one. There had been no consultation with any representatives of the employees. 26. Ibid., November 1960. See p. 5 for full text of telegram.

313

BRITISH COLUMBIA

It should also be observed that, at the time the decision was taken, the formal and material connection between the Canadian Labour Congress and a political party was still a matter for the future. That the Association was aware of the problems latent in its affiliation with the labour movement is made clear by an amendment to its constitution which was passed at its convention a month earlier. The amendment provided for a referendum procedure to deal with the issue of affiliation should a change of policy in this area be indicated. The check-off of Association dues had been in effect for thirteen years. Machinery for the direct collection of dues could not be improvised easily, and the Association soon found itself in financial difficulties. As the Government's action had been based specifically on the Association's link with the British Columbia Federation of Labour, an emergency meeting of the Executive voted to suspend this affiliation pending the outcome of a referendum. The referendum took place in December and 72 per cent of the ballots favoured disaffiliation. The Association informed the Government that it had severed its ties with the provincial labour body and requested the reinstatement of the check-off. When it became clear that there would be no response to this request, the Association sought, without success, to have the issue decided by the promised Board of Reference. The Government's action against the Association may also be seen as part of a more general policy. In the spring of 1961, the Legislature passed an amendment to the province's Labour Relations Act, making it mandatory for all labour unions to file . a statutory decla314

AFFILIATION AND CHECK-OFF

ration that their dues were not to be used in any way on behalf of any political party or candidate. Without such a declaration from the unions, employers were forbidden to continue the check-off of dues. Although the staff association did not come under the Labour Relations Act, it filed such a declaration in the hope that it would help strengthen its case. The Association also volunteered to provide the Government with a new set of individual authorizations for the payroll deductions and even offered to pay the full administrative costs of collection. There were no concessions from the Government nor, indeed, any indication as to what the staff organization might still do to justify its claim for the restoration of the check-off. The stubbornness of the Government's position suggests that the issue of affiliation was not so much a reason as an occasion for punitive measures against the Association. The British Columbia Association is also a member of the Canadian Council of Provincial Employees Associations. It was once rather sceptical of the Council's possible effectiveness and was on the point of withdrawing from it. That was in the heyday of the Association's affiliation with the Canadian Labour Congress. Recent experience, however, has undoubtedly led to a more sympathetic attitude towards the movement to establish a separate federation of government employees' associations.

315

CONCLUSION

In considering the problems of civil service staff relations in Canada, I have taken the position that they must be seen in the context of a constitutional society adjusting itself to the changing expectations and pressures of diverse groups of its citizens. The exposition is not intended as a guide to specific policies. It attempts, rather, to develop a perspective so that the details of experience may be seen in their relationships to each other. The formulation of public policy does not proceed from a set of known and objective rules. At best, we expect that those whose duty and task it is to deal with the practical issues of government and administration will prove themselves to be competent judges of what is desirable—and possible. The main conclusions of this study may be stated in the form of two general propositions. The first is that the formal, legal definition of the state does not necessarily or automatically preclude civil servants from enjoying procedures of collective negotiation similar to those available in the sphere of private employment. The second is that staff relations in most of the major civil service jurisdictions in this country have reached a point where significant innovations in attitude and policy are called for. To state the two propositions, however, is not to imply that there is a necessary connection between them. I do not suggest that because the first is true, the second must follow. 317

CONCLUSION

The main object of the argument in the first chapter is to show that sovereignty and public interest are neither rigid nor static concepts. They are sufficiently flexible to allow for either an extension or restriction of unionism in the civil service. There is, to be sure, substantial agreement that public employment differs from private employment; and this in turn suggests there should be differences in their procedures of staff relations. But maxims about sovereignty and the rights of parliament contribute little to the practical solution of this problem. Legal abstractions may be useful for rationalizing policies in acceptable terms, but they do not provide an a priori basis for choosing the policies. When a government makes a decision and takes the necessary measures to implement it, it is not applying a theoretical formula but is responding to a complex of pressures in terms of its administrative and political judgment. Thus, even accepting the view that unionism in the civil service should be subject to special conditions, I would argue that the precise conditions and limits cannot be defined in advance but must be discovered by experience in the given situation. In more practical matters, it is possible to delineate four areas requiring particular attention. First, it is becoming increasingly necessary to identify a single, responsible, and authoritative agency which can speak and act for the Government in its dealings with the staff organizations. The problem is most pressing on the federal level because of the overlapping functions and responsibilities of Treasury Board and the Civil Service Commission in the field of salary determination. Logic and sound constitutional practice suggest that the agency which represents the Government 318

CONCLUSION

should be under direct ministerial control. The problem will also tend to become more serious on the provincial level to the extent that provinces wish to enlarge the role and enhance the independence of their civil service commission in the sphere of recruitment and promotion. Secondly, it seems that there could be a clearer recognition of the limitations of joint consultation. Although there are some aspects of personnel policy which lend themselves to careful and leisurely deliberation, there are others which can be dealt with more appropriately and expeditiously only by direct negotiation. Nevertheless, the experience with joint councils in some of the provinces might contribute to the evolution and adaptation of new machinery. Thus, broadening terms of reference, setting time limits to deliberation on specific issues, and providing for the arbitration of deadlocks could teach valuable lessons and make the ultimate transition to direct negotiations more acceptable. Arbitration is a third area which deserves more practical attention. There is little argument with the view that arbitration is not an adequate substitute for negotiation, but this is not the real issue. The problem in civil service staff relations is to find a substitute for the strike. In a society that accepts the full implications of trade unionism, no large body of employees will accept what it considers to be an inferior position simply because its employer happens to be the state. In a sphere of public activity where the strike would be regarded as disproportionately disruptive, if not intolerable, arbitration seems to offer a fair and reasonable alternative. The process of arbitration, however, 319

CONCLUSION

is beset with difficulties and sometimes yields deplorable results. It is therefore of utmost importance to examine its practical aspects carefully and thoroughly in order to avoid, from the beginning, as many of its pitfalls as possible. The fourth area concerns the staff organizations. In any system of direct negotiations it is just as important to know who represents the employees as it is to know who represents the employer. The large number of associations in the federal civil service poses a serious problem for the staff side. Their competition for membership and internecine disputes cause weakness and confusion. The organizations realize this, but their efforts to achieve a degree of unity have failed thus far. There has been some progress in coordinating their representations on critical issues, but they are still a long way from being able to meet the challenge of negotiations. One often hears the argument that the demands for collective bargaining being made on behalf of the staff associations do not reflect the true feelings of the ordinary civil servants. Most civil servants, it is claimed, consider themselves to be fairly treated and are not actively dissatisfied with existing methods of consultation. The pressure for change comes from the leaders of the organizations, but the militancy is not shared by the rank and file. This is offered as an argument for slow modification, if not retention of the status quo. It seems to me that this is not a tenable position. It is probably true that most civil servants who are members of associations do not have such strong feelings as do their leaders on the issue of collective 320

CONCLUSION

bargaining. But this phenomenon can be generalized. The passivity and apparent indifference of majorities, whether they are members of private associations or of democratic political communities, is one of the facts of life. Leadership is inherent in all forms of organized human activity. We do not condemn a government for undertaking policies towards which the majority of the electorate may seem indifferent. We do not expect our political leaders to hold back from taking forceful action on important issues unless or until they are prodded and pushed by their constituents. Indeed, we look for vigorous leadership and are critical if it is not given. In due course the electoral process provides those led with an opportunity to judge their leaders. Is there any reason why the leadership of lesser associations should be judged by different standards? If the membership claimed by a staff association is verifiable, and if its leadership is subject to periodic election, we must assume that the leaders are competent spokesmen for their organization. As for the particular issue of negotiating procedures, it should be remembered that all staff associations have repeatedly laid this down as a primary objective at their respective conventions. The term treasury control is frequently introduced in the discussion of civil service unionism. It is claimed that, to the extent that a government must negotiate and reach agreement with its staff on salaries and working conditions, its responsibility and control over expenditure is curtailed. This is a narrow view. The responsibility of government for finance is not disputed, but it has never been based on arbitrary powers or absolute discretion. The vote and allocation of public funds is closely linked to the political process as 321

CONCLUSION

a whole. It is no more an abdication of financial responsibility to ask parliament to vote money for a negotiated adjustment in civil service salaries than for a subsidy on agricultural surpluses. Indeed, there is probably more to be said for a regular procedure of salary negotiations than for the hit-and-miss tactics of lobbying and covert political pressure. Arbitration is somewhat more difficult to reconcile with the principle of financial responsibility because it implies the government's acceptance of an award as binding. We have seen that theoretical objections to it can be circumvented by a saving clause such as "subject to the overriding authority of parliament." In practice, too, if it were found that arbitration did seriously undermine the power of the purse, or if it appeared to stand in the way of an all-important national policy, there would be nothing to prevent the government or parliament from suspending its operation or doing away with it entirely. As in all other areas of staff relations, however, the success of arbitration procedures would depend on the good faith of the parties. The abuse of the process or the arbitrary exercise of power to limit its scope would condemn arbitration to certain failure. My final observation is in the realm of the political. If we look at the experience of the United Kingdom and Australia we see that negotiation and arbitration for civil servants were introduced at a time when a labour party in each country was either in office or in the role of official opposition. This lends force to the argument that in the absence of theoretical criteria it is a government's assessment of the political forces and pressures at work in the community which is decisive 322

CONCLUSION

in determining its policy. Ideally, we like to think that government action in a democratic society tends to conform to the aggregate of expectations that we call public opinion. In the short run, however, when specific measures have to be framed, there is always the danger of misjudgment or miscalculation. It may be that governments in Canada do not yet perceive the pressures of civil servants for direct negotiations to be very significant, hence the reluctance to experiment with new procedures. But as long as the community at large acknowledges the legitimacy of trade unionism, the pressures of the staff associations may be expected to grow. To approach this problem with imagination and foresight is, I believe, a test of statesmanship.

323

INDEX

Addison, Ruth, 149 Affiliation of civil service associations with nongovernmental unions, 6ff, 30, 208, 230-01, 236-37, 245-48, 248-49, 3I2ff Alberta: authority of cabinet in staff relations, 238-41; Joint Council, 236, 240-41; Public Service Act, 237-41; Public Service Commissioner Act, 239, 243-44 Amalgamated Civil Servants of Canada, 28-31, 35, 43, 53, 132-33, 135, 183-84 Appeals (British Columbia), 283-84 Arbitration, 18-19, 96-98, 122ff, 156, 160-61, 188ff, 318; Civil Service Commission as substitute for, 153ff, 179, 191-92; in Great Britain, 18-19, 96-98, 164-65; in Manitoba, 252-53; requests of staff associations for, 115-17, 121. 125.26, 129-30, 241-42, 257, 269, 271, 286, 295 Arthur Young and Company, 57, 94 Bennett, Rt. Hon. R. B., 67 Board of Reference, British Columbia (Sloan-Carrothers), 189, 286, 291ff; refusal of government to table report of, 305, 308-09 Boudreau, A. J., 76, 123.24 British Columbia: amendment to Constitution Act, 307; Civil Service Act, 283-85; Industrial Conciliation and Arbitration Inquiry Board (1952), 285-86; Permanent

Board of Reference, 311-12; strike experience, 288-93, 302ff British Columbia Government Employees Association: affiliation with Canadian Labour Congress, 312ff; loss of check-off privileges, 313-14; "role" in 1952 elections, 282-83; stationary engineers, 28890; strike action, 288-93, 302ff; submission to Board of Reference, 295 Bureau of Pay Research, see Pay Research Bureau Cabinet, sub-committee on civil service problems, 73 Canadian Council of Provincial Employees Associations, 229, 248, 279 Canadian Federation of Government Employees Organizations, 248-49, 279 Canadian Labour Congress, 7-8, 26, 30, 49, 229-30, 277; and the British Columbia Government Employees Association, 312ff; and the Civil Service Association of Alberta, 237, 244-48; and the Civil Service Association of Ontario, 276-79; and the Saskatchewan Civil Service Association, 229-31; identification with a political party, 230-31, 237, 244-46 Canadian Postal Employees Association, 48n, 123

325

INDEX Canadian Taxation Division Staff Association, 113-14 Caron, Alexis, 145 Carrothers, F. A., 299-300, 308-09 Carrothers Report, see Board of Reference (B.C.) Check-off, acceptance of, 83-84, 236; revocation of, in B.C., 313-14 Civil Service Act, Canada, 1918, 23, 30, 57, 68, 88, 94, 136, 142, 191; centralized personnel administration, 104.05; responsibility for recommending salary scales, 15354; review of, 149-50, (see also Heeney Report); revised in 1961, 5.6, 9-10, 134, 159-66, 172, 176; St. Laurent's proposals for revision, 127-28, 130 Civil Service Association of Alberta, 235ff Civil Service Association of Canada, 21, 28, 36ff, 142n, 149-50, 181 Civil Service Association of Ontario, 259ff Civil Service Association of Ottawa, 26-36, 43, 62, 80, 101, 135, 183; attitude on bargaining procedures, 116-17, 119-21, 132-33, 183-84 Civil Service Commission (Canada), 23n, 26, 51-52, 57, 59, 66, 68, 81, 86, 88, 95, 115, 122, 135ff; Pay Research Bureau, 136ff, 145-47, 199; Report on Personnel Administration in the Civil Service (Heeney Report), 109, 149ff; relations with Government and Treasury Board, 137-38, 141-48, 153, 169-78, I87n, 199; role in salary determination, 172-79, 19192, 231.32 Civil Service Federation of Canada, 5, 21, 24-28, 31-37, 56-57, 60-61,

326

78, 76, 80, 126; attitude on bargaining procedures, 54, 113-19, 123-26, 130.33, 183.84 Cole, Taylor, 106, 173 Cole, Taylor and C. J. Friedrich, Responsible Bureaucracy, 19 Collective bargaining, 4, 10-11, 20, 54-55, 107ff, 130-34, 138, 151. 16061, 184; and arbitration, 190.93; British Columbia, 285-86; Ontario, 269, 273-74; Saskatchewan, 209ff, 232-33; see also Negotiation Constitutional development, staff relations as an aspect of, 2, 12-15, 20, 111 Consultation, 2, 14, 40-42, 95, 15155, 159.66, 175-79, 184-85, 235, 241; see also Joint consultation, National Joint Council of the Public Service of Canada, Negotiation Continuing Committee of the Presidents Conference on Unity, 38 Coon Committee, 70-72 Co-operative Commonwealth Federation (C.C.F. party), 208, 230, 233, 237, 244 Customs and Excise Officers Association, 40, 181n Dawson, R. MacGregor, 174 Day, A. J. T., 84-85 Deadlocks, resolution of, 4, 15-18, 188-93, 241, 252-53; see also Arbitration, Strike action Department of Finance, 44-45 Department of Labour, 8-9, 59, 192 Department of Mines and Resources, 103 Department of National Defence, 43-44 Department of Transport, 45-46

INDEX Department of Veterans Affairs Employees National Association, 114, 118.19 Diefenbaker, Rt. Hon. John G., 122, 149-50, 152, 191 Dominion Federation of Postal Employees, 189 Dymond, W. R,, 194 Federated Association of Letter Carriers, 136 Fleming, Hon. Donald M., 141.43, 146-47, 159-63, 166n Friedrich, C. J., and Taylor Cole, Representative Bureaucracy, 19 Gagliardi, Hon. P., 308-11 Great Britain, 6, 18-19, 83 ; arbitration in, 18-19, 96-97, 106, 134, 190, 193; negotiation in, 14, 168, 179.80, 271; pay research, 139-40; role of Civil Service Commission, 231; role of Treasury, 90, 97-98, 168, 180, 186n Gordon Commission (Royal Commission on Administrative Classifications in the Public Service, 1946), 87-88, 170-71, 174, 177 Government: attitude on collective bargaining and arbitration, 12224, 126-30; bargaining agent for, 169ff; joint consultation, 57ff, 109, 187; policy on salaries, 94, 129-30; principles of pay, 193.200; rejection of Civil Service Commission recommendations, 146.48, 156; see also, Collective bargaining, Joint consultation, Negotiation, Principles of pay. Griffinhagen and Associates Ltd., 23n Harris, Hon. Walter E., 124-27, 135

Heath Committee (Br.), 78, 81 Heenan, Hon. Peter, 65.67 Heeney, Hon. A. D. P., 149, 157 Heeney Report (Personnel Administration in the Public Service), 149ff; on employee participation, 151-55; on legislation for staff relations, 151-52, 164-65; on principles of pay, 196-97; on role of Civil Service Commission, 172n, 174-79 Hewitt-White, W., 114-15 House of Commons: debate on amendment of Superannuation Act, 100.01; debate on Coon Committee report, 70-71; debate on joint councils, 59ff (see also J. S. Woodsworth); debate on threat of postal strike, 188-89; debate on revision of Civil Service Act, 16062, 164; Malcolm Committee, 5859; Select Standing Committee on Industrial and International Relations, 61-65; Special Committee on the Civil Service Act (1932), 67-68; Special Committee on the Civil Service Act (1961), 158n, 162.64; Standing Committee on Banking and Commerce, 10001 Ilsley, Hon. J. L., 70-71, 73-74, 7677, 81 Industrial Relations and Disputes Investigation Act (Canada), 8-9, 11, 54, 118-19, 131-33. 191-92 Institute of Public Administration of Canada, 171 Joint Action Committee (of civil service associations), 38, 146-47, 184

327

INDEX

Manitoba, 248ff; arbitration in, 252-53; Civil Service Act, 249-50. 254-57; Civil Service Commission, 249-50; joint council, 254-57, 262; recognition of staff association, 250-51; Treasury Board, 249.50 Manitoba Government Employees' Association, 248ff; request for arbitration, 257 Manitoba Labour Relations Act, 250-55 Manning, Hon. E. C., 236 Montgomery, T. R., II3n Murdock, Hon. James, 59-60

agreement in, 96.98, 192-93; implementation of agreements, 8288, 187; limitations of, 107.09, 112, 120, 124, 318; Heeney Report recommendations for, 151-52; representation of Staff Side, 77-80, 179, 185; salaries issue, 89-96, 119, 185-87; secrecy in, 98-102; transitional mechanism, 185-88; see also Joint consultation, Whitley Councils National Union of Public Service Employees, 231n National Whitley Council Civil Service Arbitration Agreement (Br.), 18, 96-97 Negotiation, 2, 4, 10, 14, 54, I 1 1ff, 151, 160-61, 165-68, 199-200, 20708; and arbitration, 129, 192-93; British Columbia civil servants request for, 285-86; criteria for, 193-94; in Great Britain, 140, 164-65, 168, 179-80; joint consultation as aspect of, 75-76, 95-96, 107, 185-88; Ontario civil servants request for, 269-72, 275; representatives of government and civil servants in, 168ff, 199-200, 317, 319; Saskatchewan, 210-11, 218.19, 222.28 New Brunswick, 205-06 Newfoundland, 205-06 Nova Scotia, 205-06

National Defence Employees Association, 43.44 National Joint Council of the Public Service of Canada, 9, 22, 24, 27, 73-74, 75ff, 112; achievements of, 107-08; constitution, 77-78, 8082, 88-91, 115; departmental councils, 102-04; failure to reach

Ontario, 205.06, 259ff; authority of Lieutenant-Governor in Council, 259-61, 263, 270-71; cabinet committee on civil service affairs, 26367; Civil Service Commission, 25961, 263, 267, 270-72; Joint Advisory Council, 261-67; Labour Relations Act, 276; Public Service

Joint consultation, 55ff, 67, 75ff, 112, 318; see also National Joint Council of the Public Service of Canada, Whitley Councils, and under individual provinces Joint Unity Committee of Civil Service Organizations, 34-35 Kaplan, H. E., 13n Keenleyside, H. L., 312 King, Rt. Hon. W. L. Mackenzie, 53, 57-58, 61, 67 Knowles, Stanley, 9n, 11 Legislation, on strikes by government employees, 16-18 Lloyd-LaFollette Act (U.S.), 7, 16 Lobbying, 53, 108, 112

328

INDEX Act, 259-61, 265, 267-72, 276; Registrar of Regulations, 264; Treasury Board, 264 Orders in Council: P.C. 970 (1930), establishing a committee to draft a constitution for a joint council, 66.67, 73; P.C. 44/1367 (1932), regulations on establishments and salaries, 68; P.C. 2/584 (1943), setting up Coon Committee, 7072; P.C. 3676 (1944), approval of National Joint Council, 73, 75, 77; British Columbia, 1957, No. 1683; establishing Board of Reference, 293-94 Parliament: authority of in civil service matters, 11, 12, 15, 17-18, 61-62, 82, 116, 124, 155, 161, 169, 175, 232; petitions of staff groups to members of, 52-53, 112 Pay Research Bureau (Bureau of Pay Research), 134.48, 153, 158, 199; first report of, 141-44; second report of, 145.48 Pay Research Unit (Br.), 135, 139-40 Pelletier, Paul, 149 Personnel Administration in the Public Service (Report of the Civil Service Commission), see Heeney Report Picketing, injunction against and prohibition of, in B.C., 306-07 Pinard, Hon. Roch, 5 Politics: as factor in staff relations, 3. 15, 52.53, 65-67, 134, 200, 20506, 321-22; in B.C., 282-83; in Saskatchewan, 208, 233 Postal Workers Brotherhood of Canada, request for arbitration, 121-22 Presidents Conference on Unity (staff associations), 38-40

Priestley Agreement (Br.), 139 Priestley Report (Royal Commission on the Civil Service, 1953.55, Great Britain), 139n, 195-99 Prince Edward Island, 205.06 Principles of pay, 93-95, 129, 193-99 Professional Institute of the Public Service of Canada, 21-24, 31, 35, 37, 39-40, 45.49, 61, 80, 127, 133, 181n, 182; brief on general salary adjustments, 144-45 Public interest, 317, see also Sovereignty Quebec, 16n, 205-06 Rand Formula, 269 Recognition of staff associations, 6, 8-11, 111, 120.21, 131-32, 159, 179, 183-84; in Alberta, 237.38, 242-43; in Great Britain, 179.80; in Manitoba, 250-51; in Saskatchewan, 208-10 Royal Commission on Administrative Classifications in the Public Service (Canada, 1946), see Gordon Commission Royal Commission on the Civil Service, 1929-31 (Br.), see Tomlin Commission Royal Commission on the Civil Service, 1953-55 (Br.), see Priestley Commission Royal Commission on Government Organization (Canada, 1961-62), 134 Royal Institute of Public Administration (Br.), 84 St. Laurent, Rt. Hon. Louis, 10-11, 15. 75, 84, 92-94, 107, 113, 116, 135, 138, 149, 155, 194; views on

329

INDEX negotiation and arbitration, 12223, 127-30, 190-91 Salary determination, 142ff, 157-58; role of Civil Service Commission, 172-79, 191-92, 231-32; role of government (Treasury Board), 6871, 169ff, 198-99, 320; role of National Joint Council, 89-96, 119, 185-87 ; see also Civil Service Commission, Principles of pay, Treasury Board Saskatchewan, 114, 205, 207ff, 241, 244, 271; Conciliation Board, 22627; duration of agreements, 210, 225-26; Industrial Relations Committee, 224; Labour Relations Board, 212-13; negotiating procedure, 210-11, 218-19, 222-28; Public Service Act, 215-18, 223, 232; Public Service Commission, 215, 223-26, 231-32; Trade Union Act, 209-18 Saskatchewan Civil Service Association, 207ff; affiliation, 229-31, 231n; negotiating procedure, 21828; Pay Adjustment Advisory Committee, 222, 228; professional classes, 212-15, 223, 225-26; Public Service Agreement, 210, 228 Senate, Banking and Commerce Committee, 101 Sloan, Hon. Gordon McGregor, 292-94, 299-300, 308-11 Sovereignty, special status of state as employer, 1-2, 11-15, 116, 204; see also Parliament Staff associations, 47-48; attitude towards revision of Civil Service Act, 159-62; bargaining power, 20.21, 52, 133-34, 200; bargaining units, 133, 199-200, 209-10, 212-15; problems of organization and jurisdiction, 21, 25-26, 31-36, 40-

330

46, 104, 119, 132-33, 168-69, 18184, 186, 199, 318-19; quest for unity, 37-40, 48, 104, 117, 132.34, 168-69, 181-84, 199; representation on National Joint Council, 9, 77, 80, see also Affiliation, Collective bargaining, Joint Action Committee, Joint consultation, Negotiation, Strike action, and under individual associations Stead, G. W. 171-72 Strike action: as viewed by staff associations, 16-17, 117-19, 129, 131, 152, 181, 188, 218, 268-69, 275; government attitude towards, 7, 16, 17, 218, 253; in British Columbia, 205, 302ff; see also Arbitration, British Columbia, British Columbia Government Employees Association, Collective bargaining, Negotiation Superannuation Act, proposed amendment to, 100-01 Taft-Hartley Labor Management Act (U.S.), 7, 16 Tomlin Commission (Royal Commission on the Civil Service, 1929-31), 82, 193-95 Trade Union Act (Saskatchewan), see under Saskatchewan Trades and Labour Congress of Canada, 4, 208-10, 229, 236-37, 277 Treasury (Br.), 90, 97-98, 168 Treasury Board (Canada), 26, 77, 81, 84, 86, 88, 115, 177-178, 187; control of personnel and pay policy, 68-71, 169ff, 198.99; see also Civil Service Commission, Collective bargaining, Gordon Commission, Negotiation Treasury Staff Association of Canada, 45

INDEX United Civil Servants of Canada, 209-10 Whitley Councils (Great Britain), 55.58, 61, 63, 76-78, 80-91, 96-98, 102.03, 105-06, 189n, 236, 264;

negotiating machinery, 114-15; pay research, as part of, 139-40; see also Joint consultation, National Joint Council Whitleyism, 55-56 Woodsworth, J. S., 59, 62, 64-65

331

THIS BOOK IS SET IN LINOTYPE BASKERVILLE AND IS PRINTED BY ATELIERS DES SOURDS-MUETS, MONTREAL THE COVER AND DUST JACKET ARE DESIGNED BY ALLAN HARRISON