CONTENTS
Wednesday 3 February 1993
Pay Equity Amendment Act, 1993, Bill 102
Public Service Statute Law Amendment Act, 1993, Bill 169
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
Wessenger, Paul (Simcoe Centre ND)
Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Abel, Donald (Wentworth North/-Nord ND) for Ms Carter
Arnott, Ted (Wellington PC) for Mr Runciman
Caplan, Elinor (Oriole L) for Mr Chiarelli
Lessard, Wayne (Windsor-Walkerville ND) for Mr Morrow
Murdock, Sharon (Sudbury ND) for Mr Wessenger
Poole, Dianne (Eglinton L) for Mr Mahoney
Sterling, Norman W. (Carleton PC) for Mr Harnick
Wiseman, Jim (Durham West/-Ouest ND) for Mr Winninger
Also taking part / Autres participants et participantes:
Sulzenko, Barbara, policy adviser, broader public sector labor relations secretariat, Management Board of Cabinet
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1033 in room 228.
PAY EQUITY AMENDMENT ACT, 1993 / LOI
DE 1993 MODIFIANT LA LOI SUR L'ÉQUITÉ SALARIALE PUBLIC
SERVICE
STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI
CONCERNE LA FONCTION PUBLIQUE
Consideration of Bill 102, An Act to amend the Pay Equity Act / Loi modifiant la Loi sur l'équité salariale, and Bill 169, An Act to amend the Public Service Act and the Crown Employees Collective Bargaining Act / Loi modifiant la Loi sur la fonction publique et la Loi sur la négociation collective des employés de la Couronne.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. This morning we'll be dealing with the clause-by-clause on Bill 169, An Act to amend the Public Service Act and the Crown Employees Collective Bargaining Act.
Before we begin, I'd like to apologize to the committee for my delay this morning.
Mr Lessard, do you have opening statements?
Mr Wayne Lessard (Windsor-Walkerville): I don't have any opening statement, Mr Chair. I do want to advise the committee that there are going to be two amendments to this bill, fairly minor amendments; they've been circulated. The first motion is with respect to the first section. If you'd like me to move that at this time, I can do that.
The Chair: Not at this time, thank you. We will get back to you on that. Mrs Caplan.
Mrs Elinor Caplan (Oriole): Today we're going to be looking very closely at Bill 169, the Public Service Statute Law Amendment Act. I think what's been significant through the public hearings on this act -- and I've been here listening very carefully and reviewing the Hansards from the presentations that have been made -- is that I have not heard one presenter say they were consulted about this legislation. I have not heard one presenter say they support this legislation.
The concern I have really is summed up in a brief by the Canadian Union of Public Employees. It was dated January, and I believe if you look at Hansard, this was just about a week and a half ago. They raise the issue of cynicism. They say on page 5 of their brief: "Frankly, we also cannot understand the rationale for bringing forward this legislation in conjunction with Bill 102. Cynically, it has to be asked whether it was hoped that any discussion of this bill would be lost, given that the focus of discussion would be on Bill 102."
That seems to be the concern that many people have. Rather than getting into the principles of Bill 169, which were debated in the Legislature, it's more a question of democratic process.
You have a bill upon which there was no consultation. No one has come forward in support of this legislation. The point that I've been making here at committee is that in order to accomplish the definition of "employer," the government has already done that in Bill 102 by successfully stating in that legislation, which it pushed through with its majority yesterday here in committee, the concept that the government can decide, for the purposes of pay equity, who the employer is.
Bill 169, I've stated before, is more concerned with that little phrase that sweeps and expands the scope of the bill far beyond pay equity by saying the government has the right to determine who is a crown employee for the purposes of pay equity "or any other reason." That is a very significant change. As the Canadian Union of Public Employees said, the presenter we all heard, this is going through without the kind of discussion that could, and in my view should, be taking place.
We also know that the government is intending to open the Crown Employees Collective Bargaining Act, and it seems to me that that is the time for this debate and discussion to be more fully discussed and aired. We know how important it is on public policy issues for there to be discussion, not only with stakeholders but with the public so that they understand fully what legislation is about to do. We know that legislation not only sets a framework but sets a course in a number of different ways. It allows the government either to fund or to manage or to plan or any of those, as well as "It is the law" or "It is against the law."
So legislation does a number of things that I think we have to be very clear about. Here at committee, the concern I have had, the concern I had when I debated this Bill 169 in the Legislature on second reading, is the concern that this is the wrong place for us to be dealing with the issue of how the government decides who is its employee and who is not its employee.
I want to be clear that I believe that is an important debate and discussion, and I have said in committee that in order for government to both plan and manage its fiscal responsibility and deliver the services to the people of this province, that's a very important issue for government. I'm not arguing that they shouldn't be able to determine in a rational way who works for them or to decide who they're going to hire and to have good human resources planning and good personnel practices. I believe the government of Ontario should be a good employer.
But I believe as well that to sneak it into this kind of discussion as a part of pay equity, which is what Bill 169 does, is devious, it is deceptive and it really sweeps a large public policy decision under the rug in the hope that nobody will notice.
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OPSEU said exactly the same thing, and every presenter who came before this committee and spoke to Bill 169 said Bill 169 should be withdrawn. They said it should be withdrawn because this is not the place it should be debated and discussed. They also disagreed with the policy, but they said there has been no consultation. They said there has been no discussion or debate of the issues that Bill 169 raises. I believe that if you're going to have good lawmaking and good public policy developed, the debate, the process, the consultation is extremely important if people are going to respect lawmaking and if you are going to end up with a good law and good public policy.
So as we begin looking at Bill 169, which is quite a simple bill, I think we have to understand that this is flawed public policy development, and while the principles enshrined in the bill are ones that should be debated and should be discussed, I believe they should be debated and they should be discussed within the concept of the Crown Employees Collective Bargaining Act, which is under review at the present time. I also believe they should be reviewed and discussed in the context of the kind of comprehensive approach to this kind of decision-making which is inclusive, so that you include consultation and discussion with those people who are going to be affected and you include the public.
The public thinks this is all about pay equity. We know this goes far beyond pay equity: We know this has huge implications. So I want to be on the record, Mr Chairman, as objecting to the process of this policy development and as objecting to Bill 169 because of its deceptive and devious nature. I want to be clear on the record that the policy should be debated and discussed. I think the government has achieved its objective around the definition of "employer" with Bill 102, and if further change and amendment is needed, I think it's better placed in another bill, which would be more comprehensive: within the Crown Employees Collective Bargaining Act.
As I sum up, Mr Chairman, I think that if the public and if the stakeholders are going to be less cynical about what goes on here at Queen's Park, if people are going to have more confidence in us and in the government -- and I'm talking about us as legislators -- we have to tell them clearly what we're doing. We can't try to sweep something in along with something else because we think we can get away with it. Secondly, we've got to be open about allowing people to participate in the discussion before the fact and not after the fact.
Mr Norman W. Sterling (Carleton): Coming to this committee on these bills for the first time, I have just one question: Why is the government discriminating against women, visible minorities and handicapped people in the public service? Why are you doing that?
The Chair: Questions and comments?
Mr Jim Wiseman (Durham West): Is that a rhetorical question? Because it's not true.
Mr Sterling: Why are there different rights for visible minorities, women and handicapped in the public sector versus the private sector? Why are there differences?
Ms Sharon Murdock (Sudbury): Are we talking about employment equity or are we talking about Bill 169?
Mr Sterling: We're talking about these bills. They are the group these bills are aimed at. I know that employment equity is a different issue and that's not what we're dealing with here. We're dealing with pay equity and those are the groups that pay equity is targeted at: women --
Ms Murdock: Women, yes. Women, period.
Mr Sterling: I would assume it's those other groups as well.
Ms Murdock: Within that group, which constitutes 51% of the population, I might add, are minorities and so on, but this is women.
Mr Sterling: I disagree with you, but notwithstanding that, if you want to limit it to discrimination against women, then why are you discriminating against women in the public service vis-à-vis the private sector? Why do they have fewer rights?
Mr Lessard: I don't really understand the question. My response with respect to the discrimination issue, however, as it relates to employment equity, is that the original bill permitted discrimination of a large number of women -- our estimates were 420,000 -- who didn't have access to pay equity, and that is the right to receive equal pay for work of equal value. The legislation that we're dealing with here, Bill 102, is going to extend that --
Mrs Caplan: No, this is Bill 169.
Mr Lessard: Bill 102 is one of the bills that we were dealing with. It's going to extend the ability for that group of women to access pay equity.
Mr Sterling: Yes, but Bill 169 opts out certain people in our society from the rights that we're creating under Bill 102 and our previous laws. You're creating two different classes of people here in Ontario society: those who work for the public sector and those who don't.
Mrs Caplan: A point of order, Mr Chairman.
The Chair: On a point of order, Mrs Caplan.
Mrs Caplan: While I'm trying to understand the questions from my colleague who's just arrived, and I know how interested he is in these issues, the bill that's before us today is Bill 169 and I think it would be appropriate if we discuss Bill 169.
The Chair: Quite right, Mrs Caplan. Mr Sterling.
Mr Sterling: Mr Chairman, I understand Bill 169 opts out certain people who are working for agencies whose principal sources of funding are coming through the provincial government. Is that not correct?
Mr Lessard: I'm going to ask our ministry staff to respond to that.
Ms Barbara Sulzenko: If I understand your question, it's what is the impact of Bill 169 in relation to the extension of pay equity? What Bill 102 does is guarantee that any women working in the public sector who are currently discriminated against with respect to their pay rates are going to be able to get pay equity, are going to be able to be paid equitably vis-à-vis males. As a result, they will not have to seek government-as-employer rulings, as under the existing Pay Equity Act, in order to have access to pay equity.
Consequently, Bill 169 defines who is a public employee, or a crown employee or a public servant -- okay? -- for the purposes of the Public Service Act and acknowledges that women will no longer have to become public servants in order to get pay equity because of Bill 102.
Mr Sterling: So what we're doing is we're giving some rights to some women but not giving them to others. Is that correct?
Ms Sulzenko: No, that's not what I said. By virtue of Bill 102, every woman in the public sector will have access to pay equity.
Mr Sterling: Including those who work for commissions and transfer agencies?
Ms Sulzenko: Including those who work for any transfer agencies, yes.
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Mrs Caplan: I think it's important for Mr Sterling's understanding of Bill 169 to know that in this bill the government of Ontario gives to itself a right it has not given to any other employer in the province, and that is the right to say who is its employee, not only for the purpose of pay equity but for any other purpose. That's what distinguishes Bill 169. The argument I've been making is that it goes far beyond pay equity. They have also in Bill 102, which we dealt with yesterday -- I refer you to section 2 -- defined there who is an employee.
Ms Sulzenko: Actually, if I could elaborate on that point, what section 2 of 102 says is that a crown employee or a public servant is as defined in the Public Service Act. It's Bill 169 that defines what a public servant is, or a civil servant or a crown employee, under the Public Service Act. That's the precise connection between those two bills.
Mrs Caplan: The point I'm making, to be fair, is that's where this legislation is particularly devious, because if the government had wished, in Bill 102, section 2, it could there have defined very clearly who was an employee for the purposes of pay equity. But instead, by making the link to this Bill 169, which then expands that right way beyond pay equity to everything else, it has created a situation where all of those who came before this committee and spoke about Bill 169 expressed their distress at the fact that this legislation went beyond the scope of pay equity, that there had been no consultation, and recommended withdrawal of this bill.
Ms Dianne Poole (Eglinton): I just want to explore the point Mrs Caplan just raised. Section 2 of Bill 102, which we have already debated and has been referred back to the Legislature, gave the government of Ontario a right that no other employer in the province has, which is to determine for purposes of pay equity when it is and when it is not an employer and who its employees are. In every other instance in Ontario, under the pay equity legislation, it would be the commission and the tribunal that would make that determination.
As opposed to protecting the rights of women, say, in the children's aid societies, what this government has done and what it has expanded further by Bill 169 is to say, "No, for purposes of pay equity we are making that decision whether you are our employee or not."
The ministry officials and the parliamentary assistant know full well that the reason they did that was because the children's aid society workers, who are funded by the Ontario government and whom the tribunal decreed were crown employees for purposes of pay equity, have had their rights taken away by both section 2 and by Bill 169. I want to be clear that this is not extending any rights of women in this particular bill. It is taking away rights women had achieved under the tribunal decision.
Mr Lessard: If I could respond to that, I think with respect to the children's aid society workers, at least, the decision of the tribunal was on a case-by-case basis. They didn't say all children's aid society workers in the province of Ontario are considered to be employees of the government of Ontario. Because of the options being limited in the present legislation, it was required for those workers each time to make an application to the tribunal, thereby incurring expenses for legal costs and the time involved, and also with the possibility that they wouldn't be so declared and wouldn't have that access to pay equity.
The rights they have to obtain pay equity have been expanded, and I think it's only prudent, as Mrs Caplan indicated, fiscally responsible, to have the government determine who its employees are.
Ms Poole: To deal with the children's aid society instance first, with the children's aid society decision, the Kingston-Frontenac decision, this was a decision that related to that particular society. But quite frankly, it was a decision that would be used as a precedent in any future pay equity matter involving children's aid societies. The circumstances in that particular situation were not unique to the Kingston-Frontenac Children's Aid Society; they were unique to the funding situation of children's aid societies and children's aid society workers across the province.
To say that it was just this one little incident and that it was going to be extremely costly for each children's aid society to take its case before the tribunal is not the issue. The issue was, what was the end result of that tribunal decision which would impact on the finances of the government? As Mrs Caplan said in a very articulate fashion earlier on, it's not whether this is or is not a good public policy, for the government in Bill 169 to say: "We want to be fiscally prudent. We want to be able to control the size of the civil service." We are not saying that is a bad policy. What we are saying is that Bill 169 has been buried in Bill 102, absolutely buried.
When the presenters came forward, they talked about Bill 102 and as an afterthought said, "By the way, we don't like Bill 169 and it should be withdrawn." It was an afterthought. There has been no public consultation. There is no need for Bill 169 to be introduced at this particular time because you could have dealt with it in section 2 of Bill 102 with the way you worded it: "For purposes of pay equity, this is the situation." At least that way you'd be up front. What we're saying is that we're going to give ourselves a right that no other employer in the province of Ontario has in being able to decide when we are the employer. But you didn't do that.
What you did was to try to slide Bill 169 through the back door, and very successfully, I might add. There's been no major outcry, there's been no major demand for consultation because most people don't even know this is happening. You have something that goes far beyond the policy ramifications in Bill 102 and pay equity, yet there's been nothing said on this. There has been no discussion, no debate. That is what I find reprehensible. If this government is going to purport to have good policy development and be the government where "consultation counts," to use those infamous words, then you have to consult. You don't try to bury a piece of legislation in Bill 102.
But this government will continue to do it, because you've been quite successful, because the presenters who came before us were far more interested in and far more prepared to talk about the ramifications of the pay equity provisions than they were about the provisions of Bill 169. That's the thing we really object to, the underhanded, sneaky and devious way in which you've put through Bill 169 when there was a far more appropriate place in which to do this, where you would have had to explain the policy rationale and listen to people and what they thought about this legislation.
The Chair: Further comments or questions? Mr Lessard, response?
Mr Lessard: In response, I just want to point out that the reason the children's aid society workers in the Frontenac case had to take the route they did is because they didn't have the access to pay equity set out for them in the bill, and they were forced to do that. The reasoning in that case is that it's only going to set a precedent if it withstands an appeal. The government disagrees with the opinion of the tribunal in that case and the case is under appeal at the present time, so we don't know whether it's going to be applicable to all children's aid society workers in the province, as you've indicated in your remarks.
I recall one of the presenters when asked -- I think it was one of the CUPE delegations -- whether they wanted to see the definition that is in Bill 169 with respect to crown employee included in Bill 102, they didn't feel that was appropriate. So I don't think there was universal agreement with respect to having those two things included.
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Mrs Caplan: Mr Chairman, if you go back and check the Hansard, that is not what they said. What they said is they didn't agree with the policy, they didn't think it should be in 169, they thought that should be withdrawn and they wouldn't want to see the same policy in 102, but at least then you'd have the policy debate. They did not say it would not be appropriate to put it in; they disagreed on the policy of it. So let's be really clear as to what they said. They also said there was no consultation with them on that policy issue.
The Chair: Thank you, Mrs Caplan. Further, Mr Lessard? No? Ms Poole.
Ms Poole: When you're talking about the children's aid society and that particular decision that was made by the tribunal, that in effect will be overturned by section 2 of Bill 102 and substantiated by Bill 169. This was not an isolated case, and children's aid society workers feel that this government has betrayed them by what it's done.
One of the presentations that has been filed with the committee -- and I'm sure you must have received it -- was a written submission by the Kenora-Patricia Child and Family Services. Their submission is that they are deeply concerned about the proposed changes. They say, "If enacted in its current form, Bill 102 will deny potentially substantial pay equity adjustments to many members of our association."
They do not feel that by bringing in proportional and proxy, you have solved their particular problem, because they're saying what you have done is to say that their work will continue to be undervalued. I would refer you to their submission, dated January 29, 1993, that was filed and distributed by the clerk.
Mrs Caplan: I think Ms Poole is absolutely correct. I would point out to the parliamentary assistant that it was pointed out to us that Bill 169 makes irrelevant all of those cases. We heard from the ministry and presenters themselves that what it means when they do this is that there's a significant public policy change that nobody has been consulted about. They think this only applies to pay equity.
We know that this bill also is retroactive -- and I would refer you to page 3 of the bill, section 4, "This act is deemed to have come into force on the 18th day of December, 1991" -- another piece of retroactive legislation that will make irrelevant the very decisions and the public policies that people have been functioning and operating under.
That's only as it pertains to pay equity. We know that Bill 169 goes far beyond pay equity and that there has been no discussion, no public consultation and not one presenter has come forward on Bill 169 to say that they think it's a good idea. What they've said is: "We'd like a chance to debate and discuss this. We'd like to be consulted. Where did this come from?" That's what we're saying to the parliamentary assistant.
Mr Lessard: The retroactive date in the legislation is the date of the first reading in the Legislature, and the fact is that the case that Ms Poole is referring to hadn't been filed with the tribunal before that date. We don't really know what the outcome of any application that would have been made would be, if they ever made an application.
Mrs Caplan: We know this date prejudices; because of the retroactivity of this bill, this will prejudice that case.
The Chair: Mr Lessard, would you like to continue, please?
Mrs Caplan: You can't say it won't. I'm telling you.
The Chair: Ms Caplan, please let Mr Lessard finish first.
Mr Lessard: I would say these committee hearings are very much a part of the democratic process and give people an opportunity to make comments with respect to the bill. My information is that there was lots of consultation that took place prior to these bills being introduced. My colleagues may disagree, because people don't agree with it. Consultation doesn't necessarily mean agreement.
The Chair: Mrs Caplan.
Mrs Caplan: Now that I have the floor, I can restate what I was provoked to say while the parliamentary assistant was making his statement. You have to tell people the truth. This legislation will prejudice those cases that you are referring to when you say that the outcome is unknown. The truth is that this legislation will prejudice it.
The truth is that the presenters who came forward said, "Yes, we were consulted on Bill 102, on pay equity." Nobody said they had been consulted on Bill 169 and the public policy implications of Bill 169. That's the reality, that's the truth and that's why people are so cynical about this bill; it's that you're not telling them the truth.
The Chair: Ms Poole.
Ms Poole: When you talk about the fact that there was ample consultation and the democratic process was followed, let's get real.
I talked to OPSEU representatives last June. The meeting was specifically called, and Gerry Phillips was there as well, to discuss Bill 169, which once again was on the government's order paper to go into second reading. The meeting was to discuss OPSEU's reaction to this and it was very clear from that meeting that in fact this consultation process had not occurred.
I would like you to tell us if you indeed have had this extensive consultation process that you purport to have had on this issue, on Bill 169. I would like you to tell us about some of the groups you consulted with that concurred that this indeed was a good bill, that it was appropriate to tie it in with the pay equity legislation and in fact should not be a part of the CECBA review; which groups you consulted with that gave you that information.
Ms Sulzenko: I can attempt to answer that question in so far as I'm aware of the fact that prior to the introduction of 169 and 102, when it was originally 168, there were numerous discussions with the Equal Pay Coalition, with public sector unions, in which the government's intention to proceed with the contents of Bill 169 were made known, and made known in the context of what was happening in pay equity with Bill 102 and the extension of pay equity to people who had been denied pay equity under the previous legislation.
Ms Poole: No, I asked the question: Which groups did you consult with that agreed with the direction in which you were going and did not feel this should be part of any CECBA review, that felt that this legislation should be introduced at this time with the pay equity legislation, which groups agreed with the government position that this is how you should deal with this legislation and how you should deal with this policy?
Mr Lessard: You're concerned with the process, and our submission is that there was consultation, and consultation doesn't necessarily mean people agreed with it.
Ms Poole: Did anybody agree with you? One group, one association? One? Did they say that this was a good policy or that it should be tied to Bill 102 instead of being part of a CECBA review? Just one?
Mr Lessard: I'm not aware of any.
Ms Poole: In other words, this consultation did not involve listening; it just involved the pro forma: "We're telling you we're doing this. Tough."
Ms Sulzenko: I should say that the consultation was on the package of legislation which is in front of this committee now, which includes two bills, and that there were elements of that package the various groups consulted agreed with and elements of the package they disagreed with. Through the course of the consultation changes were made. But the consultation that was conducted was on the package as it has proceeded into the Legislature.
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Ms Poole: As Mrs Caplan pointed out earlier, that's the basic problem with this so-called package. It doesn't fit together. There's no necessity to bring in 169 at this time, except for the fact the government wanted it lost in the pay equity portion of the package.
CUPE is an organization that is very friendly towards your government, that has supported a number of things that your government has done. They were appalled by the cynicism. To repeat, they said, "Cynically, it has to be asked whether it was hoped that any discussion of this bill," ie, Bill 169, "would be lost, given that the focus of discussion would be on Bill 102."
I can't see how you can purport to have had a discussion of the ramifications of Bill 169, the impact of Bill 169, when it's very clear that the presenters you were talking to had the focus of Bill 102 and that you cannot name one group, one association, that agreed with what you were doing with Bill 169, either the timing or the actual policy.
To me, that is no type of consultation; that's camouflage: "Let's try to slide this through under the door while nobody's looking." I don't see how this government can justify dealing with this bill in that way.
Mr Sterling: Tell me if I understand this correctly, because I think it's important. At the present time, who is or who is not a public servant? It's decided, as I understand it, in various different tribunals dealing with various and different issues, normally labour-oriented issues. Under this bill, am I to understand that the government, with a stroke of the pen, can effectively reduce or increase the public service at will, either down or up, as it pleases?
Mrs Caplan: By regulation.
Mr Sterling: By regulation, a stroke of the pen.
Ms Sulzenko: There's no question but that the bill establishes for the government the ability to determine who is a public servant and who is a crown employee. That's the purpose of the bill. The government has made that very clear.
Mr Sterling: There's a rumour circulating that the government is about to create three large corporations, essentially to funnel off debt obligation; at least that's the way it's viewed by me. If, for instance, they said, "We are going to chop the Ministry of Natural Resources up into a number of different corporations or agencies," you could, under your bill, reduce the civil service for the Ministry of Natural Resources to maybe 25 or 50 people and the rest of the people would no longer be public servants?
Mrs Caplan: The answer is yes, by regulation.
Mr Sterling: No -- I mean, I'm talking about power.
Ms Sulzenko: If named in the regulation, they would continue to be crown employees. If not named in the regulation, the successor rights would apply, so the terms of the collective agreement that the employees enjoy would be extended to them in the new formulation. If they were not crown employees, then they would have bargaining rights under the Labour Relations Act.
The Chair: Further comments or questions?
Mr Sterling: At the time the regulation was made to make people no longer public servants or in fact make some people public servants who were not public servants before, what is the requirement under this act for there to be public hearings, input, before the cabinet makes that decision? Is there any requirement?
Ms Sulzenko: No, there is no requirement for hearings.
Mr Sterling: Therefore, this could happen holus-bolus, significant shifts of status of employees, without any kind of public hearing, notice or anything else.
Mrs Caplan: The answer is yes. Hansard will please note that I said the answer is yes. That's what we've all been saying since second reading debate in the Legislature: huge public policy implications. The answer is yes. The government parliamentary assistant doesn't even understand what they're doing.
Ms Murdock: I don't know how Mrs Caplan has suddenly developed skills in terms of being able to read minds. However, I would just like to point out that governments through history have had cabinet ministers -- Mrs Caplan was one, Mr Curling was one, Mr Sterling was one -- and we're sitting here, and they are going to be the ones who are making the decisions in terms of these regulations.
I hope, and it's certainly evidenced in our cabinet and I presume in future cabinets, that those people will be making conscientious decisions under the regulations, as they have done in all kinds of pieces of legislation that have been developed by this government and this Legislature for hundreds of years.
Mrs Caplan: I would like to apologize to the parliamentary assistant. I said a moment ago that she didn't know what she was doing. Her long explanation said they know exactly what they're doing, and the answer to Mr Sterling is yes.
The Chair: Mr Sterling, you still have the floor. My apologies.
Mr Sterling: As I understand it, under our present laws, if a government decided that it wanted to treat a certain group of people who were or were not public servants, if it was a question mark, those employees could seek redress from the Ontario Labour Relations Board, for instance, or the Pay Equity Commission, depending on which was the primary issue. As a side issue, both of those tribunals have decided that a certain group of people are public servants. That's what has happened to date, as I understand the existing law. Is that not correct?
Ms Sulzenko: There have been some of those cases.
Mr Sterling: What this says is that, notwithstanding what the Ontario Labour Relations Board decides or the pay equity tribunal decides in terms of the status of that group of employees, the government, by fiat, through regulation, can say, "No, that's not right, you are not public employees."
Ms Sulzenko: That's correct. The purpose of the bill is for the government to make the determination and to be accountable to the Legislature for the size of the public service.
Mr Sterling: But when a regulation is passed, there's no accountability to the Legislature of Ontario.
Ms Sulzenko: The government is accountable to the Legislature for all of its actions.
Mr Sterling: You mean in the normal sense. There's no debate that's required; it's done.
Ms Sulzenko: You're absolutely right.
The Chair: Further questions.
Ms Poole: I'd like to go back to the very paternalistic comments of the parliamentary assistant, Ms Murdock, when she said that basically, yes, it would be done by regulations, but you have to trust that these are thoughtful, sensitive people in cabinet who are going to make the right decision. This sounds to me like the divine right to rule.
Interjection.
Ms Poole: That's exactly what this sounds like, the divine right to rule. That's exactly what this is: We don't need public hearings; we don't need to consult on any major shifts. If you listen to what Mr Sterling has just said, he has said that this government has said, "We should have the right to determine the size of the public service." But they have not answered the question about these crown corporations that are in the midst of being formed, which will be outside the normal deficit picture of the Ontario government and will be dealt with as separate organizations.
By regulation, what this government could do is say, "This group of employees no longer are crown employees under the Ministry of Natural Resources." They could say, "They are going to be assigned to this crown agency." Their figures are separate, like Ontario Hydro; their deficit is not included as part of the Ontario government's overall deficit picture.
It's not only that you are trying to slide this legislation through; you are also trying to slide it through so that this government can hide its true deficit picture, so that it can pay what used to be crown employees in a very different way. It's more creative accounting.
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Mrs Caplan: I'm going to try and be as clear as I can be about the power that Bill 169 gives to the government. With the stroke of a pen, and that's by regulation, without any public hearing, the government will be able to take away the rights of people, the protections they now have, to argue before tribunals that have been established to protect those rights. You are giving, by this legislation, Bill 169, the right by order in council, by regulation -- order in council is the cabinet -- to take away rights and to increase or to decrease the size of the civil service at will.
That takes away rights of people without public hearing, without recourse, without right of appeal. That's what Bill 169 does. It does not require any debate, any discussion, and it's not just for those people who would like to be civil servants in the future, who would like to be crown employees or be considered crown employees in the future. Bill 169 allows, by change in regulation, the designation and the de-designation, the determination of who has the rights of protections afforded a crown employee; that is the enormous public policy implication that I have been referring to.
I've tried to state it as clearly as I can so that members of the government will understand exactly what they're doing. I hope I've explained it simply and clearly. I would say to you that the people of the province, the crown employees today, don't really understand what you're doing, and I don't believe you understand the policy implications for the future.
I think Ms Poole is right, that this could be used in a way which is not contemplated today, and I also believe that it is an important public policy issue and debate that deserves more than the attention it has received here at this committee, that the appropriate place for this debate should be part of changes to the Crown Employees Collective Bargaining Act, because it potentially takes away the rights of those people who are crown employees today. We know it takes away the rights of those people who want to argue their status in the future as crown employees.
With the changes in Bill 169, you will give to this NDP government and future governments the power, by the stroke of a pen, to take away rights of existing crown employees, of their own employees. As I mentioned when we had a representative here from the ministry yesterday, the Deputy Minister of Labour, this would interfere with employer-employee relations. That was what I was referring to.
Mr Alvin Curling (Scarborough North): I just want to understand retroactivity and consultation. When the government announced its bill and said that it would be retroactive to December 1, 1991, for the first reading, are we saying then that any consultation that takes place, that part of it is not debatable, it cannot be changed? In other words, that's what it will be. Is that what it means?
Ms Poole: December 18, 1991, would be the date.
Mr Curling: Would be the date, no matter what second reading, no matter what consultation, no matter what happens, all those who come before you, should they come before you, that's not a debatable part of the --
Mr Lessard: I'm not going to be introducing an amendment to that section here today.
Mr Curling: You're not going to introduce an amendment. Therefore, from the first day you introduced it, you're saying, "It's not debatable and I will not be introducing an amendment," even though today is February 1993 and you introduced it at that time, you had taken that position from December 1991. I am just trying to understand consultation and retroactivity.
Mr Lessard: We're not introducing an amendment --
Mr Curling: Just answer yes or no.
Mr Lessard: -- to that section with respect to the date here today.
Mr Curling: Therefore, that's the position you would be in, no matter who came before you at that time; you'd have made up your mind already. Your government had made up its mind that that will not change. I just want to understand that, because you see, we're talking about a democracy and your colleagues over there were talking about being different and that's what the consultation is about.
As Ms Poole has said, it seems to me you can't first-name anyone who supported your position, so we've put that aside since you can't. Therefore, you did not consider at all any of those who came before you, no matter what they said -- this is the law. There's no use going through this exercise because you have no amendments to that part.
Mr Lessard: There were consultations that took place before the introduction date of the legislation. There were consultations that took place after the introduction. There hasn't been any amendment with respect to the effective date of the legislation. However, I can't give you a definite answer that it may not be amended at some future date. All I'm telling you is that I'm not introducing an amendment here today.
Mr Curling: It's an extremely sad day for democracy each day you speak here, because the fact is, it seems to me, that people have no venue in which to express, to convince, to coerce, to change any legislation that is put forward, and I'm hearing that this is the law. Many times I'm here trying to get you to debate, but I feel, what's the use? You will listen but you haven't heard. In the same way I feel that those who have come before you, you have not even heard what they've said, and it is extremely sad.
The next point I'd like to make and to ask you -- and I just want a clarification on this -- Ms Poole asked the question whether the deficit position of all the crown agencies that are now deemed not part of the public service, would those assets or liabilities be taken into account as part of the government liabilities and assets too? For they are no longer the public service. Let me go back.
Ms Sulzenko: I don't understand the question.
Mr Curling: Oh, again we hear but we don't listen. These are agencies that will be deemed, by regulation some of them, not a part of the government public service any more because of the regulation. Is that so?
Ms Sulzenko: Well, let me just say that the government today has the power to close down a ministry, to lay off people --
Mr Curling: As of today.
Ms Sulzenko: Today, under the existing law.
Mr Curling: And also the crown, the retroactivity --
Ms Sulzenko: Without any Bill 169, the government can close down five ministries and lay off all the employees of those ministries. Bill 169 has no impact on that power. Now those employees would have rights under their collective agreement and they would have rights under the Employment Standards Act with respect to notice of layoff and severance and so on, but it currently is within the power of the government to expand or reduce the size of the public service.
What we're talking about with Bill 169 is whether employees of agencies that are outside the public service should be able to be determined to be public servants and crown employees, and this bill prevents that from happening unless the government agrees to it.
Mr Curling: If they're outside, why are you making regulations to say they won't be a part of the government any more?
Ms Sulzenko: Because up until now it has been possible for those employees to proceed to a tribunal to get a third-party determination that they were crown employees. Now that has led to the government feeling that it is vulnerable to the expansion of the public service beyond its own ability to control that and to be accountable to the Legislature for that.
Mr Curling: Aren't some of these agencies completely funded by government? They have no other source of funding, of creating any funds for themselves. They are funded completely by government.
Ms Sulzenko: Some of these agencies are funded completely by the government, but they are also subject to local boards which are responsible for them, who operate them and are, in fact, in law the employers of the individuals working for those agencies, who are accountable to their communities, being groups of people in the community, and their municipal government.
In the children's aid society case, for example, it's 20% funded by the municipality and there's a lot of local accountability. The local boards of the children's aid societies are very concerned about being able to maintain their legal and de facto position as the employers of their employees. They don't believe that they could fulfil their responsibilities in their current mandate if they were no longer the employees of those individuals.
Mr Curling: But the power of government-flowed funds to those agencies, as subject to regulations and laws and all that -- that must be approved by the government. So when you say that they have to be accountable to their people, the fact is that most adhere to the policies and regulations by the government, which they get their funding from. Most of them, sole funds, are coming from government. So when you say to me that, well, they have regulations and they're accountable to the people, all those kinds of things we know, but I'm saying to you that there are agencies that get entire funding, or the majority of their funding, from the government and are considered as agencies of the government.
I want to get back to the retroactivity. All along the years they were considered a part of the government. You said that as of that date, they were no longer, by some regulation. Not only did you say that, and what you're explaining to me is the government has this power to cut back and do all that. We're not talking about from here on. You're saying also the power is to go back to two years, to December 1991, and say, "Not only can I do that now, but I would consider you no part of me in December 1991."
Now I'm going to ask the parliamentary assistant a political question: Do you think that is fair?
Mr Lessard: I don't know what the impact of that might be. I don't know what your point is.
Mr Curling: They're no longer your father or your mother; that's the impact.
Mr Lessard: Why would we want to add to that list?
Mr Curling: Mr Chairman, if the minister didn't know the impact of that, why put a regulation in if you don't even know the impact and have taken the position away back that there's no debate on it? And you're telling me you don't know the impact of this? It's really, really frightening if you have put a regulation in here that's not debatable and tell me now you don't know the impact of it when you did put it in.
Mr Lessard: Names are on the regulation. I don't know the impact of what you're suggesting, that other names may be addable to that list.
The Chair: Thank you. Further questions or comments? Responses? Ms Akande?
Ms Zanana L. Akande (St Andrew-St Patrick): Mr Chair, it would be my wish, and I'm not sure that this is appropriate at this time, to call a brief recess at this time, if we may, so that there's some discussion of this.
The Chair: This committee will stand recessed for 10 minutes.
The committee recessed at 1133 and resumed at 1145.
The Chair: I call this meeting back to order. On section 1, Mr Lessard.
Mr Lessard: I'd like to move that subsection 8.1(4) of the Public Service Act, as set out in subsection 1(2) of the bill, be amended by striking out "public employee" in the third line of the English version and substituting "public servant".
The Chair: Comments, Mr Lessard?
Mr Lessard: My only comment is that there was a drafting error in the original bill, and it's being corrected through this amendment.
The Chair: Further comments? Seeing no further comments, shall Mr Lessard's motion carry? Carried.
Mr Lessard, the next motion.
Mr Lessard: The next motion is with respect to subsection 1(2) of the bill. I move that section 8.1 of the Public Service Act, as set out in subsection 1(2) of the bill, be amended by adding the following subsections:
"Direction re appointment
"(6.1) The Lieutenant Governor in Council may, by order, direct an agency of the crown designated in the regulations to expressly appoint as a crown employee an individual who is employed in the service of the agency.
"Same
"(6.2) If the agency does not make the express appointment within the time indicated in the order, the Lieutenant Governor in Council may, on behalf of the agency, expressly appoint the individual as a crown employee."
The Chair: Comments?
Mr Lessard: The government is concerned that crown agencies may fail to appoint employees as crown employees and therefore, relying on the fact that the Labour Relations Act doesn't bind crown agents, create a class of employees without bargaining rights. To ensure that agencies do not abuse the provisions of Bill 169 by refusing to appoint genuine crown employees, the government is proposing that a residual power be reserved in the Lieutenant Governor to require an agency to exercise its authority.
The Chair: Further comments? Shall Mr Lessard's motion carry? Carried.
On section 1, as amended, comments? Shall section 1, as amended, carry?
Mrs Caplan: Could I make a comment? I'm not going to make it on every section as we go through. I believe that this legislation is premature. I believe there has not been enough public consultation and scrutiny of the public policy issues contained in Bill 169.
I supported the bill in principle in the Legislature because I think it is important that we have debate and discussion on the public policy. I also believe that the government has the right to manage. Having said I support in principle the concept of the ability to manage, I believe that this piece of legislation potentially gives government power without scrutiny, without accountability, that perhaps we should consider in a broader forum before we confer. I believe the right forum for that debate is the Crown Employees Collective Bargaining Act, which is under review right now.
I'm going to be voting against these sections because of the way the government has introduced this bill, because of the way it has proceeded with this bill and because of the lack of support from any presenter who came forward and the request from those presenters for the kind of consultation and scrutiny that you normally have for a major public policy decision.
I want to put my position clearly on the record as objecting to the process of this piece of legislation. I too am cynical that the government has deliberately and deceitfully attempted to put this through under the guise of pay equity when it has much broader public policy implications. I object to that, and it is because of that objection that I will be voting against this in committee.
The Chair: Thank you, Mrs Caplan. On section 1 -- Mr Sterling.
Mr Sterling: Because the Liberal Party has put forward its position with regard to the overall intent of the bill, I think it's far too much power resting in the hands of the cabinet of Ontario to deal with the lives of employees to allow them by fiat to determine their future without the right of notice, without the right of hearing. It is unbelievable that a government that portrays itself as sympathetic to labour's concerns would consider such a matter in terms of having such powers over individuals without giving them some very, very basic rights. So we will be voting against all sections of the bill.
The Chair: Thank you, Mr Sterling. Further?
On section 1, as amended: Shall section 1, as amended, carry? All those in favour? Opposed? Carried.
On section 2: Comments? Shall section 2 carry? All those in favour? Opposed? Carried.
On section 3: Comments? Shall section 3 carry? All those in favour? Opposed? Carried.
On section 4: Comments? Mr Arnott.
Mr Ted Arnott (Wellington): Thank you, Mr Chairman. I would just like to ask the parliamentary assistant, and I made this concern clear during the course of presentations, why it was so urgent to make this bill retroactive to the date of first reading.
Mr Lessard: The purpose was so that employees of agencies didn't continue to make applications to be declared crown employees for pay equity purposes after that date, after the introduction of the legislation.
Mr Arnott: But you feel that's a reasonable way to approach this Legislature in terms of retroactive legislation?
Mr Lessard: We provided the other alternative options as far as accessing pay equity and felt that it was unnecessary for them to have to take that other course of action.
The Chair: Further on section 4? Shall section 4 carry? All those in favour? Opposed?
Mr Arnott: Can we have a recorded vote?
The Chair: Recorded vote. All in favour?
Ayes
Abel, Akande, Lessard, Malkowski, Murdock (Sudbury), Wiseman.
The Chair: Opposed?
Nays
Arnott, Caplan, Curling, Poole, Sterling.
The Chair: Section 4 is carried.
On section 5: Comments or questions? Shall section 5 carry? All those in favour? Opposed? Carried.
Shall the title carry? Mrs Caplan?
Mrs Caplan: I don't like the title.
The Chair: Shall the title carry? Carried. Shall the bill, as amended, carry? All those in favour? Opposed? Carried.
Shall I report the bill to the House? In favour? Opposed?
Mr Sterling: Recorded vote, please.
The Chair: Recorded vote. All those in favour?
Ayes
Abel, Akande, Lessard, Malkowski, Murdock (Sudbury), Wiseman.
The Chair: Opposed?
Nays
Arnott, Caplan, Curling, Poole, Sterling.
The Chair: Carried.
Seeing no further business before the committee, this committee stands adjourned to the call of the Chair.
The committee adjourned at 1155.