The Harper government’s forced FB vote has been unceremoniously quashed by the Federal Court.
The judgement, not yet online, outlines clear evidence of a “lack of procedural fairness” on the part of the Minister, James Moore, who ordered the vote. The PSAC was given no warning that such a decision was imminent, and had no opportunity to present counter-arguments.
The government’s case was like something out of The Twilight Zone. They argued, presumably with a straight face, that the PSAC had no interest in the vote, because the decision affected only the employees concerned. They claimed that the PSAC had no right to be given notice of the pending decision, but had received notice anyway (simply untrue, as the Court found). And even if there wasn’t procedural fairness, they went on, there was no need to hear from the PSAC because the decision to force the vote would have been made anyway!
One wonders what would happen if the latter kind of thinking invaded the realm of criminal law. “The defendant is obviously guilty. No need to hear from his counsel. Ten years.”
Here’s a little more surrealism, this time about the alleged concern over illegal job action by border security officers. From the judgement: “The respondent argues…that it is often very difficult for an employer to establish that employees have acted in combination or concert when they undertake more subtle forms of job action.” Job action so subtle that no one can show that it has even taken place? Um, OK. Sounds really effective.
In any case, the Court began by reviewing the long history of negotiations for the FB group. The last collective agreement ended in June 2011, but we had served notice to bargain in February of that year, hoping, perhaps naively, to hurry the process along. Bargaining went on, in fact, until April 2012. The employer simply refused to address the critical issues raised by our duly-elected negotiating committee.
On April 19, 2012, we asked for a Public Interest Commission to be set up to re-start the stalled negotiations, and one was established by July 25. The PIC, once it is in place, normally gets thirty days to hold hearings and write a report, but both sides agreed to an extension of time. Final submissions were made by both sides in December 2012.
While the PIC deliberated, Treasury Board played a waiting game. We finally got a meeting in early May, during which time very minor improvements were offered, but the crucial issue of parity with other federal law enforcement agency workers was not addressed by the employer. It is important to underline the fact that the FB bargaining team was given a mandate by the membership (through a national bargaining conference, attended by over 100 FB elected delegates) to achieve parity, but the employer continued to insist that they agree to inferior terms and conditions of employment. So the team decided to wait for the PIC report as a basis for concluding a settlement.
This is where things began to go seriously sideways. On May 21, 2013, Treasury Board President Tony Clement wrote to Minister James Moore to ask for a forced vote. The PSAC was not copied on this letter, and we were not in fact informed that any such initiative was taking place. All Treasury Board had done was to tell us earlier that it was “considering” such a move. (On May 7, when this came to my attention, I immediately wrote to the Minister asking to be heard if such a move was actually in the works. I received no reply.)
Clement lamented the nearly one year that had elapsed since the PIC had been requested, but, as the Court noted, he failed to mention that both sides had agreed to an extension. He claimed to be worried about job action even though a potential strike was a long way off, said the PIC report wouldn’t be any use anyway, and that in any event the PSAC was asking for too much.
My May 7 letter was sent directly to the Minister’s office. From there, it was forwarded to his departmental office. But, allegedly, he never saw it until well after his decision had been made. A sceptical Court observed: “[N]o explanation has been provided as to why the letter was not placed before the Minister nor as to why it took several weeks for the Minister’s parliamentary office to forward the letter to the department (where it presumably would have been processed quickly under the service standards applicable in the department).”
Careful language indeed, but I think we can all see her raised eyebrows.
On June 5, the long-awaited PIC report was issued—two days before the Minister made his decision. The Court expressed real doubt that he been made aware of its contents. But the presiding judge, Mary Gleason, had little time for the government’s arguments, in any case. On the matter of PSAC not being an interested party in matter of the forced vote, she wrote:
“With respect, I disagree, and, indeed, believe it would be difficult to find a decision that might more deeply affect a trade union’s interests than the decision to order a vote among bargaining unit members”.
In addition, she noted that unions are indeed entitled to bargain for their members, and that it is, after all, the union’s signature that goes on the contract. For good measure, she pointed out that one case brought forward by the government actually supported our position.
As for the assertion that the PSAC had no standing to argue against the Minister’s decision, the Court said that if this were accepted, “one party to the collective agreement—the government—could shield its actions from being questioned, which would run counter to the entire scheme for collective bargaining in the public service”.
So far, the response from Treasury Board hasn’t exactly been encouraging. A spokesperson for Tony Clement reacted: “[The] government’s intent was to provide employees with an opportunity to have their say and vote on their contract. It is unfortunate that the union bosses would not give their own members that opportunity.”
This is grossly dismissive and unfair. While we waited for the court decision, the members at CBSA were actively engaged in a broad-based NO campaign with support right across the country. The union, in fact, fought to ensure that the democratic rights of those members were protected, both by supporting their duly elected bargaining team and by ensuring that the voting process itself, however premature, was fair and accessible.
It’s truly unfortunate that the real bosses have done everything but bargain seriously since February 2011. Treasury Board has been dragging its heels and throwing obstacles in the path of a negotiated settlement from the get-go. Now, having pointlessly expended $24,840 of the taxpayers’ money to hire a firm to conduct a forced vote, another $4000 in court costs to the PSAC, and substantial legal expenses on top of that, they’re right back where they were. Perhaps this court decision will wake them up at last, and they’ll finally agree that FB workers should have the same rights and benefits as already earned by other federal law enforcement agency workers. In any event, it’s off to the table again for the hard-working FB bargaining team—two and a half years after notice to bargain was first served.