Thank you. Does committee agree?
Agreed.
Sergeant-at-Arms, please escort the witnesses into the Chamber.
Thank you. Minister Beaulieu, would you please introduce your witnesses?
Mr. Chair, with me today is Shirley Desjardins, deputy minister, to my immediate right; Nicole MacNeil, director, labour relations, to my far right; and to my left I have Ken Chutskoff, legislative counsel.
Thank you, Mr. Beaulieu. Committee, we are on general comments for Bill 30. First on the list is Mr. Dolynny.
Thank you, Mr. Chair. I’d like to welcome the Minister and the department here today as we talk about the amendments to the Public Service Act here. Before I get into my general comments, I think it’s important that we discuss some of the presumptive language around the term “direct appointment” within the scope of this bill. Clearly, some Members, including myself, have a great deal of concern on the frequency and the volume of direct appointments granted by Cabinet and as Ministers. These appointments typically circumvent the public process of competition which, in my opinion, undermines the basic premise of a healthy and sustainable public work force. With that said, anything, in my mind, that codifies, substantiates or endorses the practice of direct appointments by Ministers is in itself contrary to public acceptance.
In the public review process, members of the Standing Committee on Government Operations were mindful of comments made by submissions and by some committee members themselves on the expressed discomfort that this process required in order to get this bill on the floor of the House today.
Holding one’s nose due to our perceived smell is not, in my opinion, the way we should be dealing with legislation of the House. With that said, it is imperative that Members truly understand what is at stake today and vote accordingly with their conscience. If we are to begin, let’s begin with the amendment of least resistance. This is referenced in what was summarized earlier by our chair of the committee in granting employee leave for work for political candidacy. This amendment was of merit, and I have no problem as worded.
As we progress in the bill, the expansion of power of the Minister to approve direct appointments without Cabinet approval in order to meet the government’s duty to accommodate sick, injured or disabled employees was a great debate. The shift of authority from Cabinet to the Minister was rationalized by the department as having little discretion and the desired effect is merely in expediting the GNWT’s efforts.
During our public review, the Minister also suggested that there could be instances where the Cabinet could refuse to appoint such a direct appointment and the government would be in breach of its duty to accommodate. While there may be little discretion with respect to the fact that the GNWT has a duty to accommodate an employee, there is potentially a great deal of latitude on how that duty will now be fulfilled with such an amendment. In the end, the oversight of Cabinet in this regard is an important check in the system. Although great debate consumed committee, I realized that there was not enough support to amend this clause to retain the oversight of Cabinet in instances where the government is fulfilling its duty to accommodate, but it was imperative that my views were brought forward today in consideration of this bill.
Finally, to the issue of most contention with this bill, is the concern of appointment without competition for employees identified for layoff. To set the context, this act is currently written in such a way that an employee affected by a layoff must first be terminated from the GNWT before he or she can be appointed to another position within the public service. The amendment before this House assumes the person identified for layoff is redeployed to another position, rather than being processed for termination. This all makes sense for minimizing the disruptive issue of continuity of employment, maintaining one’s benefits and reducing stress for all.
Nonetheless, there is a particular wording that exists in Section 27(3) in the Bill 30 which is troubling. The cause for concern is the wording which gives the Minister the authority to “appoint the employee without competition to any position in the public service for which he or she is qualified.”
Concern over the reference to the term “any” was also noted in a written submission during the public review process. The perceived failure of the term “any position” suggests the fact that the Minister may appoint an individual identified for layoff into a position that is already occupied by an incumbent. This parachuting someone, in effect, is a failure of the bill’s attempt at clarity. As written, the Minister has zero limitations at the discretion in the direct appointment process and, in essence, grants the Minister enormous authority.
Some committee members share my concern; others were on the fence. In my opinion, we need to be mindful of the role and the duty to protect our entire public workforce at all times. In the end, we need to give comfort that this amendment, as written, will not usurp current GNWT employees to accommodate someone who has been identified for layoff.
Mr. Chair, I will have further comment when we deal with the clause-by-clause of this bill pertaining to this particular issue. Thank you.
Thank you, Mr. Dolynny. Next on my list, Mr. Moses.
Thank you, Mr. Chair. I think Mr. Dolynny summarized it pretty good about the…summarized it very good, actually, in terms of what some committee members expressed as concerns in some areas of the clauses that are being brought before us today. In some cases they are just small little changes to the wording, but what I see out of those small little changes are some possible big consequences not only for the department but for our public service sector and people who have been working with the government for X number of years. You can actually be overlooked with some of these possible power decision-making made by a single Minister.
Mr. Dolynny referenced that employees who are deemed for layoff can actually be appointed to any position within the public service without competition. I have some concerns over this, that if an employee was recognized for layoff and they were able to be put into another position, any position within the public service which we have over 5,000 positions within the GNWT, he or she might be able to go into another department where somebody who had been working five, 10, maybe 25 years, who is looking to fill that position, now might be overlooked because of a direct appointment. Taken out of the hands of all Cabinet members to discuss such an appointment, I think, does draw a lot of concern.
As I have stated in a lot of discussions with the Minister’s office, I have worked in the public service sector for 12 years. I have seen some of these practices happen. I have seen some employees who were looking for a position, waiting for the job competition to open up, and a direct appointment was given to another employee sometimes from a different department and it really affected the atmosphere of the working conditions within that department. I think, as you move forward into making these amendments as small changes to the act itself, it will cause big consequences. I also do feel that it puts too much power into the hands of one Minister, in terms of direct appointing an employee to any position without competition within the public service sector.
There was another area here that I did have another concern with and I will discuss it more in detail with the clause-by-clause review, and that was for any employees that want to run for office, and putting that in the hands and decision of the deputy minister when we have a small population here in the Northwest Territories already and the relationship between the deputy minister and the Minister, and even though the Minister doesn’t have the right now because it is just an amendment, there still can be a conflict of interest because the deputy minister and Minister work so close and it could be even deemed more of a conflict if the deputy minister and that Minister were together for two, three or more terms. Obviously, the deputy minister and the Minister would have developed a strong relationship over however long they have been working together and that can be a conflict of interest as well.
Like I said, it’s a small population in the Northwest Territories, and with the deputy minister so involved in what happens in the goings-on of business in the Northwest Territories, travelling to communities, meeting with people who might be potential candidates – because I am sure they would be listening to people who would be very vocal, very outspoken, very involved in the community – and should that individual want to run for office, now we are leaving it in the hands of one individual and that’s the deputy minister. I think there is potential for conflict of interest there as well. There is nothing, I believe, in this act that would allow for the potential candidate, who could also be a good employee for the GNWT, there is no appeals process that they can follow if they want to run, to get that opportunity to run. So we are actually shrinking and limiting the amount of potential good-quality candidates that would like to run for office within our government. Should the individual decide to run, it looks like the only option for them is to resign their position and run for office. Then there is no appeals process; there is nothing that says they can go back into the public service sector because there was no approval given.
Those are just some of the concerns that I’ve had with this. As we get into the clause-by-clause review, you will hear more questions to the Minister to get a little bit more clarity on some of these clauses that have given some concern to me.
As I say, working in the public service sector for over 12 years, I have seen some of these practices go on and I do believe putting all that power into one person’s hands on some very important issues is very conflicting for me and also gives me concern for all the people that go out there and do work in the public service sector. I think that speaking up for them, especially the long-term employees who might be getting overlooked, it’s going to be a concern for them as well. I think they should be spoken for in that case. With that, I will close my general comments. Thank you, Mr. Chair.
Thank you, Mr. Moses. Next I have Mr. Yakeleya.
Thank you, Mr. Chair. The bill speaks to a number of points I have listened to from my colleagues and to the Minister. It certainly raises the questions on the appointments by this government for employees. Certainly for us in the Sahtu region, we have a different perspective. We are looking at the percentage of representation by this government of the people they serve into those higher levels of management.
Recently, I’ve been very pleased with the increase of northern Aboriginal people who are qualified who are now taking senior management positions. I believe that many of them have won these positions through a competition process.
I want to ask the Minister the breakdown of direct appointments for the Sahtu and also generally on the number of direct appointments within the government, because the Minister stated in his presentation that this bill does not expand the powers of the GNWT to appoint individuals without competition. I want to ask the Minister for some of these numbers that I’m asking for.
I know also that in the Tlicho Government human resources steps show that the Tlicho Government is doing well above the percentage of having their own people working. I think they post about 70 percent. I think we are below. I don’t know if we have done any good in the last three years. Maybe some departments; I don’t know. I can go upstairs and get my numbers and figures. But what struck me, looking at the Tlicho Government, is that they have close to 70 percent of their people working within the government. That is a very good representation of the people they serve. The same with our government, our government is not doing too well in those areas. I’m more interested in how do we increase those numbers.
Over the years of being in the position of MLA, I always want to increase the representation population in our public service servicing our people. More so now in the senior management positions. I believe and I guess it’s really a balanced approach to a direct appointment competition. I know in my region a lot of people, for some odd reason, even though they’re qualified and whatever, they just don’t seem to make it within the competition race, and I get calls. Because of existing policies or something like that, they don’t get that second phone call. Sometimes we have to look at these cases and see that possibly a direct appointment could work.
I’m looking to a balanced approach on this issue here. I’m more interested in having the numbers increase with our government by the population that they serve, and right now what I’m reading, we’re not doing too well in that area. I know there’s a slow growth, and I know the Minister, through other programs and services and initiatives, is looking at increasing that number, but right now it seems to stall, maybe I could say. Is that the right word to use? Some departments are not doing too well, and I could list the departments where you see those numbers. Some departments are doing really well and they’re increasing. This is a huge department and this is affecting people. This is not like talking about roads and bridges. These are actually people who want to work within the government and people who want to make a difference in their lives, especially in our small communities. Like I said, in the Sahtu now it’s starting to change but there is still some work for us to do there, and I’m not too sure how or when those changes will happen. We need to look at that and be realistic about it and start making these changes.
I indicated in my Member’s statement earlier in the House, there are 75 students who are going to the Aurora College in the Territories, 79 students. Sorry; they are in Aurora College or some Aurora College learning centres. These are the people that are in business management, nursing, heavy equipment operator, office management, teachers. We’ve got to show them there’s a pathway there. I’m looking for that to see how we could work with them, knowing that they have the qualifications. I wanted just to say those are my comments for the opening of this bill here.
Thank you, Mr. Yakeleya. Committee, we’re on general comments on the bill. Ms. Bisaro.
Thank you, Mr. Chair. I just have a couple of comments. One of the things that came to light when we were discussing the bill, we received some comments from one of the stakeholders who was concerned about consultation. I don’t believe that there was enough consultation done on this bill, if there was any consultation done at all. One of the questions I have for the Minister is to advise us what consultation was done in the development of the amendments to Bill 30.
I would like to confirm in the definition of layoff, it’s being deleted, and I’d like to confirm, I believe the Minister advised us earlier that in the definition it’s being used as a noun and throughout the rest of the act it’s being used as a verb and that the language where it was used as a noun has now been changed. I would just like a little explanation on that to make it more clear.
I do appreciate the comments of my colleagues on adding the word “vacant” into Section 27(3), I think it is. I’m not sure, and I guess what I would like to know is we’ve been assured that nothing is really changing in this bill, and I note from the current act to the amendment, basically the intent is the same, but there still is the question of what safeguards exist to ensure that managers don’t parachute people into positions, and I don’t think that’s totally clear. I have concerns about direct appointments in general. I’m not too concerned about direct appointments here, but I do wonder why we can’t add the word “vacant,” and that was a comment from one of the submissions that we received, as well, why it does not say any vacant position, why it says “any position.” I know the current act doesn’t have the word “vacant” in it, but certainly, without the word “vacant” it can be read to allow somebody to be direct appointed into any position, occupied or not.
Those are my concerns, and if I could get a little bit of clarification. I’ll have questions when we get to specific clauses as well. If the Minister wants to answer them there, that’s fine.
Thank you, Ms. Bisaro. Committee, we’re on general comments. Questions probably will come up more in the clause-by-clause. General comments. Mr. Bromley.
Thank you, Mr. Chair. I actually do have a question just to provide some context for discussion in the clause-by-clause. I appreciate all the perspectives I’ve heard so far and the Minister’s comments.
My question is: Does the Public Service Act, as it currently is, provide for the Minister to be able to directly appoint an employee into a position that is already filled, thereby displacing the incumbent? Is that ability provided for in the current act? Just to be sure, I’m asking, does the current version of the Public Service Act, which we’re proposing to amend here, currently provide the Minister with the ability to directly appoint a person into a position that is already filled, thereby displacing the incumbent from that position?
Thank you, Mr. Bromley. We’re on general comments, so I’m not sure if you had any further comments to make. If not, I don’t have you on my list, so we’ll just go to the Minister. But just to follow up with you, do you have any general comments?
Thank you, Mr. Bromley. Do I have anybody else on general comments? I’ll go to the Minister now to reply to some of the general comments.
Thank you, Mr. Chairman. I think I will generally respond to all of the opening comments from the Members, but I will answer the question from Mr. Bromley first. The only change that we’re looking for in the provision where a Minister may direct appoint a person to a position, to any position, is the person would now be affected by layoff, potentially affected by layoff, as opposed to what we’re… Pardon me. Right now in the act, the individual has to be actually laid off and discontinue service. Then I would be in the position to direct appoint that person to any position. What we’re requesting here is that the position, as soon as the individual is affected by layoff, potential for the layoff, that person is going to be laid off and if there’s a position that he or she is qualified for, I can then make the direct appointment into that. There’s no change there. It’s just the wording of the layoff.
I’d like to speak on each of the items. Duty to accommodate: The proposed change to Section 18(2) simplifies a way to duty to accommodate appointments made to fulfill the GNWT’s human rights obligations. It means that once an employee and management have agreed to an accommodation where an appointment to a new position is necessary, it can be made with minimum fuss and inconvenience for the employee. It also limits the release of information about the employee’s accommodation to only those who need to know. It gives the GNWT, as an employer, a process to quickly put employees into new positions to fulfill our human rights obligations to accommodate employees.
The proposed change to Section 27(3) allows employees identified for layoff to be placed into appropriate positions without having to be first formally terminated. For employees identified for layoff, this change minimizes disruption for their continuous employment status. It provides them with a greater confidence that their employment status will not be interrupted and helps minimize disruption to the employee’s personal life. This change simplifies the administration of this government’s commitment to retain affected employees. It provides a measure of staffing stability for departments which want to retain valuable employees whose jobs they’ve had to relocate or eliminate.
Bill 30 eliminates a perception of conflict of interest by removing the Minister from direct appointment of granting leave to restricted employees for the purpose of running for election. Instead, the deputy minister accountable for the act will approve an employee’s leave for political candidacy. The act does not allow us to deny leave for most employees who wish to run for political office. It is only restricted employees, basically senior managers, who may be denied. The changes provide restricted employees with assurance that political considerations of the Minister will not interfere with their ability to seek election. Employees can consider running for public office with confidence. If they are not successful, they have a job to return to.
We take the political rights of the employee very seriously and cannot deny a restricted employee’s leave unless their absence would very seriously interfere with the ability of this government to operate. As far as I am aware, no restricted employees have been denied leave to run for office.
Thank you, Minister Beaulieu. Committee, we’ve concluded comments. Agreed to go into detail? Does committee agree?
Agreed.
Thank you. Committee, we’re on Bill 30, we’ll go to page 1, clause 1. Does committee agree?
---Clause 1 approved
Clause 2, Ms. Bisaro.
Thank you, Mr. Chairman. I did sort of mention in my remarks I’m slightly confused why we are deleting the definition of layoff and I mentioned I think it’s because there’s a difference in the way that the word “layoff” it’s used, whether it’s used as a noun or a verb. I didn’t hear that, I don’t think, in the Minister’s remarks. I also didn’t hear about what consultation was done, but I don’t know if we can go to the Minister at this point or not, but that is a concern. Thank you.
Thank you, Ms. Bisaro. Minister Beaulieu.
Thank you, Mr. Chairman. The legislative counsel will speak to that question.
Yes, Mr. Chutskoff.
Thank you, Mr. Chair. The repeal of the definition “layoff” in this act was done for legislative drafting reasons. The existing definition breaks at least three rules of good legislative drafting. It contains a matter of substance – if I may be permitted – it currently reads layoff. It means a person who has been laid off under subsection 27(1) and who, in the opinion of the Minister, is suitable for continued employment in the public service. This test, that the person, in the opinion of the Minister, be suitable for continued employment, is a matter of substance, and good legislative drafting would require that that matter of substance be moved to the substantive provision and that’s what we have done in this case.
In addition to that, the term “layoff” was used only once in the act, in Section 27. Another rule of good legislative drafting would require that you don’t have a definition for a term that is used only once. You include the content of the word or the meaning of that word in the substantive provision where it’s used.
Lastly, the existing definition of layoff represents an unusual use of the word. It refers to whereas the word “layoff” may be used as a noun to describe a person who has been laid off, as a layoff is not in keeping with good English. Those were the reasons that the definition has been repealed.
Thank you very much. Minister, maybe to the issue of the consultation.
Thank you, Mr. Chairman. The UNW was consulted and the NWTTA was not, but they have access to the public consultation process.
Thank you, Minister Beaulieu. Ms. Bisaro.
Thank you, Mr. Chair. Thanks to the legislative counsel for the clarification. I guess with regard to the consultation, I would advise the department and the Minister that anytime legislation that involves employees, no matter who they are, is being contemplated, that there ought to be consultation with them on the changes that are intended to be made to an act.
I’m not quite sure what the Minister means by the fact that the NWTTA had access to the consultative process. It’s one thing for a submission to come in when the bill is at committee stage. It’s quite another thing for a submission to be made at the LP stage or prior to the LP stage when amendments are being considered. So I would just encourage the Minister to do more consultation than what they think they need at the time that the amendments are being contemplated and in the development of an LP. Thank you.
Thank you, Ms. Bisaro. Minister Beaulieu.
Thank you, Mr. Chairman. We agree with the Member’s statements. When we review the Public Service Act as a whole, we will certainly be consulting with all union groups.
Thank you, Mr. Beaulieu. Next I have Mr. Dolynny.
Thank you, Mr. Chair. I did find it odd that we are repealing definitions within the purview of an amendment of an act. It is to my understanding that when we were doing legislative review, legislation in its pure form is supposed to be as prescriptive and definitive as possible to remove ambiguity, ambiguity in definition and ambiguity in law.
Although we heard earlier today that the term is used seldom – I heard only once in some other form of legislation – this would actually prove that even more detrimental that definitions are not removed from legislation. That there’s a clear and definite rationale for a definition to actually appear in legislation, as I said earlier, is to be as most prescriptive and definitive as possible. The courts have told us that. The courts expect that from legislators.
So again I ask, is this fundamentally the stance now of the department that when we review legislation we’re now seeing the removal of definitions, that we are actually being less prescriptive in design? Is this the intent? Thank you, Mr. Chair.
Thank you, Mr. Dolynny. We will go to legislative counsel, Mr. Chutskoff.
Thank you, Mr. Chair. As I mentioned in my previous remark, these were technical reasons for removing the definition. There is no desire to remove anything. In this case the test is that the previous definition contained “who, in the opinion of the Minister, is suitable for continued employment in the public service” has been moved to the substantive provision. In taking a holistic approach, nothing has been lost from the repeal of the definition. Thank you.
Thank you, Mr. Chutskoff. Minister Beaulieu.
Thank you, Mr. Chairman. In addition to that, the definition of layoff is clear in the Collective Agreement and we see no ambiguity to the public service.
Thank you, Mr. Beaulieu. Mr. Dolynny.
Mr. Chair, if that is indeed true, I don’t believe the Collective Agreement is considered legislation. I consider that an agreement, as it is intended, is with another third party.
As I said, repealing definitions, in my opinion, makes our legislation less prescriptive. It could be interpreted in different ways. We’ve heard that the term “layoff” is substantive in another form. I didn’t quite understand where this term “layoff” is.
Is the term “layoff” defined in any legislation, not regulations, that the department uses in its due course? Thank you.
Thank you, Mr. Dolynny. Minister Beaulieu.
Thank you, Mr. Chairman. We are not aware of any term “legislation” that’s identified in any legislation.
Mr. Chair, I will ask my question again. Is the term “layoff” defined in any of our legislation? Thank you.
Mr. Chair, we are not aware of the term “layoff” being identified in any of our legislation.
Mr. Chair, I believe that’s the justification of the argument today, where we are actually removing the definition even though it’s used in a noun or a verb. We are clearly lessening the legislative process by making more ambiguity in terms of the wholeness of the act, the spirit of the act and the intent of the act. If this is indeed the premise we are about to embark on, I strongly suggest that all departments coming forward to remove definitions is not really what we’re looking for, for great legislation. We’re looking for legislation to have proper definitions so we can understand wholeheartedly what terms mean and represent in the language of government.
I will leave it at that, otherwise we’re going to be chasing our tails on this subject, but it’s more of an observation.
I’ve commented on this before with other acts before the House. I’m cautioning the drafters, I’m cautioning the departments, keep definitions within the acts, please. It offers more clarity, and again, this is exactly what the courts are using. This is exactly what the collective bargaining agreements use. This is exactly what legislators will use to find out the spirit and intent and the true meaning behind acts, words, definitions. I will leave it at that, Mr. Chair.
Thank you, Mr. Dolynny. Did you have anything to say, Mr. Minister?
Thank you, Mr. Chairman. No, I don’t.
Thank you, Committee. We’re on clause 2.
---Clause 2 approved
Thank you. Clause 3.
---Clause 3 approved
