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Integrity of the federal public service upheld

The recent bullying of Chief Electoral Officer Marc Mayrand by the House of Commons Committee on Procedure and House Affairs--and his firmness and grace under pressure--have raised a number of troubling public policy issues.

The House Committee, representing all four parties, unanimously asked M. Mayrand to change his ruling that veiled Muslim women do not have to reveal their faces when they vote. He rightly refused to do so, citing the unambiguous wording of the Canada Elections Act, and the fact that he had twice brought the implications of that wording to the attention of the parliamentarians engaged in drafting the legislation.

The Act specifically allows alternatives to photo identification of voters (indeed, the Minister's second reading speech stressed the need for alternatives to photo ID). The danger to the rule of law posed by the conduct of various members of the House Committee is obvious: they were in effect asking a public employee to ignore the law and to take their political direction instead. His response was measured, respectful and firm: the Committee is not Parliament, and cannot amend legislation-and neither can he. After this exercise in Civics 101, which some Committee members, particularly on the government side, apparently found difficult to grasp, M. Mayrand went off to supervise three Quebec by-elections.

Little has been said up to now about what else was at stake during this exercise, namely the integrity of Canada's federal public service as a whole. Political impartiality has been a cornerstone of the public service since the beginning of the twentieth century. While this has often simply been taken to mean that political partisanship must be avoided in the appointment process and in the conduct of duties by public employees, a reasonable interpretation would extend to, and exclude, political interference of any kind in the carrying out of those duties.

In that light, the House Committee disgraced itself by attempting to circumvent the rule of law and to strong-arm a public employee into making what was, in effect, a political decision. Had M. Mayrand bent, he would have compromised not only his own ethics, but the integrity of the entire public service. A values-based public service is considered integral to public service modernization, and every public employee must adhere to a Values and Ethics Code for the Public Service, which states, in part:

Public servants must work within the laws of Canada and maintain the tradition of the political neutrality of the Public Service.

Public servants shall perform their duties and arrange their private affairs so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced.

M. Mayrand himself, as an Officer of Parliament, is not technically bound by this Code. But by upholding the law and insisting upon his duty to do so, in the face of unconscionable political pressure, M. Mayrand upheld the values enshrined in it. Certainly in the popular mind he is a civil servant, and indeed the epitome of what a civil servant should be. Shaken by recent scandals like Adscam, the public needs to be reassured. And it is precisely his sort of exemplary courage and integrity that may begin to restore the public's trust in its own institutions.


—September 14, 2007 [Home]

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Expenditure Review of Federal Public Sector Compensation Policy and Comparability

Under the leadership of former Treasury Board official James Lahey, a comprehensive, although admittedly management-oriented, report on federal public sector compensation has just been released.

The report covers a number of areas:

o The components of total compensation (including salaries, pensions, medical and dental plans, "terminable allowances," leave entitlements, severance pay, and disability and life insurance;
o the fragmented nature of compensation policy in the federal public service, and lack of effective overall coordination;
o changes in federal public sector compensation since 1990-91;
o comparability of the components of federal public sector compensation with those of the private sector;
o pay equity; and
o collective bargaining

The document is exhaustive, and concludes with a lengthy series of recommendations grouped under five broad themes:

1. Transparency and accountability;
2. Coherent management of compensation;
3. Substantive compensation issues relating to salaries;
4. Substantive compensation issues relating to pensions and other benefits; and
5. Possible areas for updating the legislative framework.

Emerging from a sea of figures, statistics, charts and sometimes conflicting studies are a number of conclusions, on occasion set out in a somewhat tendentious manner (e.g., with respect to pay equity and collective bargaining). On the fragmentation of the federal public sector compensation regime and the need for coordination, transparency and accountability, the authors are on firm managerial ground. They also demonstrate at length that, overall, benefits in the federal public sector compare favourably with those offered by other Canadian employers, public and private.

Sifting through a mountain of data, the authors also put to rest the notion that wide wage gaps exist between public sector and private sector compensation. They find evidence of only a modest “premium” for federal public sector employment. But they hasten to qualify this: in the five-year period 1998-2003, after long-suspended collective bargaining rights were restored, they find that real wages rose by 14.1%. Collective bargaining by itself, they note, is responsible for a 7.9% real increase in that period. The authors warn that, if this becomes a continuing trend, the gap will indeed become a wide one.

In this, the authors appear contradictory. Collective agreements above the level of inflation call into question, for them, the nature of the collective bargaining process itself. The average public service salary, they note, stayed fairly constant in real terms from 1982 until 1997. Wage freezes or imposed settlements were in place for seven of those fifteen years. When collective bargaining rights were restored, real gains in wages were made for the first time in a decade and a half. But the authors concede:

It is important to note that in Canadian society as a whole, median family after-tax income in constant dollars exhibited a similar pattern of stability from the early 1980s through the late 1990s, followed by an increase of similar magnitude to that experienced by average federal public service real salaries.

In other words, those gains appear to have allowed federal public employees to stay abreast of a country-wide trend. In real terms, then, where is the widening gap?

After many years of determined resistance, Treasury Board lost the battle over pay equity in1999, when more than $3 billion were awarded to past and present members of the Public Service Alliance of Canada. One can feel some continuing frustration in the report: “on-going salary costs” of pay equity are broken out, which is odd given the fact that the award simply brought pay rates into line with the requirements of the Canadian Human Rights Act. Those so-called “on-going salary costs” constitute the portion of salary that should have been paid from the very beginning. The authors go on to make a number of recommendations on the subject of pay equity, one of which is to “recognize that Canada is a market economy in which salaries generally reflect the forces of supply and demand; federal jurisdiction employers should not be expected to stray far from market norms in implementing pay equity.”

The report is weakest, however, on labour relations, and contains much that will be bitterly disputed, reflecting as it does the authors' managerial point of view. They note, for example, that collective agreements arising from the conciliation/strike route and those awarded through the arbitration process, have yielded similar results over time. But they conclude that both the right to strike and arbitration should be abolished, the latter for a number of reasons, including possible “upward bias”; they recommend that an alternate framework for dispute resolution be imposed by legislation. “[T]he use of strikes to resolve public sector labour disputes,” they assert, “is of doubtful public policy merit.” (Reference is made to the Fryer Report of 2001, but that report, while offering substantial recommendations for an alternative labour relations framework, explicitly calls for the retention of the right to strike.)

What the authors appear not to understand is that, from the union perspective, the public service would have to be fundamentally restructured, along entirely different principles, to make an alternate dispute resolution mechanism a remotely realistic option. The current hierarchical structure, with its unequal distribution of power and its fragmentation of the workplace into competing groups, is what gives rise to adversarial relations. One cannot effectively tackle this piecemeal, especially by removing the already limited power of the unions, and expect that those adversarial relations will simply disappear.

Strikes are the last resort, not of union officials, but of the union members: they exercise it with reluctance, but exercise it they do. As the authors themselves put it, “raising money for strike pay forces substantial union dues, and aside from militants, it appears that federal public servants are uncomfortable with leaving their work serving the public.” But the fact that they periodically do so, despite the odds being so clearly stacked against them, is deserving of an analysis that is completely absent from this report. Any serious proposal for an alternative labour relations regime, however, must begin thereand go well beyond compensation issues.

Meanwhile, there's not a lot of consternation in union ranks. There may be some tightening up of the current fragmented compensation regime; there may be some new employer initiatives at the bargaining table. But on pay equity, it's all over but the shouting—the big payouts are done, other than the one expected at the end of the continuing 24-year-old Canada Post struggle, and the small separate employer cases are before the courts. As for the future, the Liberal-appointed Pay Equity Task Force recommended a proactive law on pay equity in 2004 to replace the time and money-consuming complaints-driven system now in place. As late as this past May, the opposition parties expressed support for such a law, but the Harper government is stonewalling. In this context, the proposals in the report with respect to pay equity methodology may find a sympathetic ear in some quarters, but they have nowhere to go at present.

Regarding the right to strike, there is no feeling that the government will act: even the report itself talks about a lengthy canvass of possible alternative dispute resolution models before legislation is contemplated. And the recent Supreme Court decision on collective bargaining, recognizing it as a Charter-protected right, could have some effect on any new legislation abolishing the strike option.

In other words, while the report sets out management thinking on compensation issues at some considerable length, complete with recommendations and the outline of a plan for putting them into effect, it doesn't portend major policy changes. The unions will have to remain vigilant as always, but at this point it must be said that there is nothing particularly alarming or indeed very surprising to be found in this 800-page magnum opus.

—August 2, 2007 [Home]

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UK passes corporate manslaughter law

Without much notice in Canada, the UK's Labour government has passed legislation that would hold corporations strictly accountable for deaths at work due to managerial negligence. The Corporate Manslaughter and Corporate Homicide Act took ten years to become law. Much of the delay was a result of the government fighting to exclude deaths in official custody from the Bill, leading to reversals in the House of Lords. With only days to go before Parliament prorogued, the government finally conceded the issue. The law will not only apply to corporations, but to trade unions, police and prison services, and partnerships.

Previously, at least one senior official in a corporation (a “directing mind”) had to be found guilty of negligence before the company as a whole could be found liable. Large corporations with accountability spread over a number of actors, and with poor communication, were able to escape responsibility. This law permits corporations as a whole to be prosecuted without the need to identify any one individual.

“Globally,”Times correspondent and professor of law Gary Slapper reminds us, “more people are killed each year at work than are killed in wars.” Over the past forty years, an average of 1,000 people per year died under company-related circumstances in the UK. Yet only 37 companies were prosecuted for wrongful death, and only seven convictions were registered. Slapper reminds us of some celebrated cases in which companies escaped prosecution:

On September 19, 1997, a high-speed train travelling from Swansea to London was racing at 125mph about 10 minutes from Paddington when it passed a red signal. Soon afterwards it collided with a freight train. Seven people were killed and 151 inured. About £10 million worth of damage was caused by the incident. The passenger train was operated by GWT, a company with an annual turnover of £300 million at the time. The train was being operated with its automatic warning system switched off because it did not work, and the automatic train protection system was also inoperative. There was no second driver in the cab. Those were not just individual mistakes; they were part of a systemic failure of safety management. A prosecution of the company for manslaughter (using the old common law crime of manslaughter) failed, as had one in 1990 against P & O Ferries (Dover) after the Herald of Free Enterprise capsized, killing 192 people. In both cases there were difficulties in finding one senior person in the company who knew enough to incriminate him.

While the new law does not go as far as Canadian legislation (which took twelve years after the Westray mine disaster to become law in 2004, and which applies to injury as well as death), the current UK law is nevertheless expected to redress the balance in favour of victims of corporate negligence by effectively removing the requirement for a “directing mind” and replacing it with something akin to the Australian “corporate culture” model. While it does not make senior managers, including CEOs, personally accountable for injury and death caused by lack of due diligence in the organization that is under their watch, the notion of collective corporate responsibility has at least been recognized. It will now, of course, be up to the legal system to determine the degree to which corporations will be sanctioned for their negligence.

—July 20, 2007 [Home]

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The Ontario electoral reform debate continues...
 ...if only in the press. Recently (July 18) we heard from a self-described “long-time Liberal activist” whose op-ed, in the Globe & Mail, is headed “Ontario must wake up to the mixed-member threat.”  
He is not, it appears, referring to the threat to the fortunes of his party, which has long benefited from false majorities created by the “first-past-the-post” Single Member Plurality (SMP) system at both the provincial and federal levels, but to democracy itself.
There is little new in the arguments presented. Mixed Member Proportional*, the proposed replacement for first-past-the-post, will allegedly produce decreased accessibility to government, a more elite legislature, irresponsible, unaccountable government, and resistance to positive change.
The concern for accessibility to government advanced by the proponents of the status quo is a real one. Access is an essential part of accountability, however little it is presently used. The writer expresses his concern that riding MPPs will have larger areas to serve and so will be less accessible. But experience in such countries as Germany, a stable electoral democracy that has had MMP for decades, does not bear this out. All representatives are accessible to constituents. There is no two-tier system, and in fact the electorate does not distinguish between list and riding representatives.** The proposed model for Ontario, furthermore, will actually increase the number of MPPs to 129, hence offering easier access.
The spectre of an “elite legislature,” with list MPPs seated by senior party brass as “rewards for faithful service,” is easily dispelled as well. In the German example, cited by Louis Massicotte, most list representatives have run in constituencies. The Ontario system would require parties to disclose publicly how their lists are assembled. If the process is offensive to voters, this could be costly for the party involved. (Under SMP, of course, the parties choose their candidates as well—and, as we have seen in recent years, this is sometimes done against the wishes of the local riding association.)
The author insists that list MPPs will be unaccountable, and have fewer responsibilities than riding MPPs, but be paid the same. Experience elsewhere, once again, is to the contrary.** There is no reason why list MPPs will not do their share of regional constituency work. Indeed, constituents whose candidates did not win might prefer to chat with list MPPs from their preferred parties. And, of course, each party as a whole becomes accountable to the electorate for its list choices.
Predictably, we are warned that coalition governments will be the norm, and allow fringe parties to have disproportionate influence over policy; and “brokerage politics” will make positive change more difficult. But a host of counter-examples--Germany, Hungary, Scotland and Wales--spring immediately to mind. Indeed, the same arguments may be made with much more force against the SMP system. Our large big-tent national parties are coalitions, within which brokerage politics is the norm. Such parties play it safe, and trail behind the electorate through polling. When was the last time that a genuinely new concept or idea was advanced by these parties?
Under our current system, relatively minor swings in public opinion can produce legislative earthquakes that result in wild swings in public policy. That’s not the “positive change” desired by the long-suffering electorate. Under MMP, modest changes in the public mood would be reflected by equally modest changes in the legislature. And, contrary to alarmist speculation, fringe parties do not end up with major influence under MMP, as the European experience bears out.
There are two issues here, however, that need to be more fully addressed. The first is what we mean when we use the word “democracy.” The term often refers to the formal aspects of the Westminster system, about which Jean-Jacques Rousseau once famously remarked that “The English Nation deceives itself when it imagines itself free, it is so in fact, only during the election of members of Parliament; for as soon as a new one is elected, it is again in chains and counts for nothing.”  Is it possible, in fact desirable, to take a wider view? Perhaps democracy at its most fundamental is a culture of active involvement, not once every four years or so, but on a continuing basis. Electoral reform, by itself, will not generate that culture, but it offers at least a possible first step—a legislature that will reflect far more faithfully the desires of the electorate. 
The second issue is whether a sometimes abstruse discussion amongst academics and activists will decide the question, in Ontario or elsewhere. Without cultivating that active involvement, in this case by the citizens of Ontario who will vote on electoral reform this Fall, will the proposed change, despite its promise, simply be perceived as the replacement of one remotely-operating structure by another?
*A system in which some representatives are elected in ridings, as under the “first-past-the-post” (Single Member Plurality) system, while others are assigned seats if necessary to ensure that the number of seats each party has in the legislature reflects the over-all percentage of the vote that the party receives.
**See Massicotte, L. “In Search of a Compensatory Mixed Electoral System for Quebec.” Gouvernment du Quebec, 2004.  [July 20, 2007].
Typically, a list member starts out by running unsuccessfully in a constituency. To run, he or she has to become familiar with the local issues. The person tries again in the next election. If his or her party comes to power, its number of list seats will decline noticeably and the only way to get elected will likely be by running in a constituency. For this reason, such a person will remain active in the constituency during his or her term of office and give such activities almost as much effort as a “directly” elected member. . . the phenomenon is recognized in official literature for the public and some parliamentary websites even explicitly indicate the constituency in which each list member works. (Federal Parliament, provincial parliaments of North Rhine-Westphalia and Lower Saxony.) [74]For example, the 1998 federal election saw a major constituency shift. Victorious in 221 constituencies in 1994, the CDU/CSU won only 112 in 1998. Meanwhile, the SPD went from 103 to 212 direct seats. No fewer than 124 members changed category: 73 incumbent list members (all from the SPD, except 2) became constituency members, whereas 51 incumbent constituency members (all from the CDU/CSU) held their seats thanks to party lists. [76]
The assumption, that the two-vote system produces two kinds of MP, the constituency MP and the Landesliste MP, is empirically refutable. Contrary to widespread opinions, it is of absolutely no importance whether a mandate is obtained through the constituency and the Landesliste. Double candidatures are the rule. The voters do not perceive the difference at all. [61]

—July 20, 2007 [Home]

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Nunavut in the news
The news out of Nunavut continues to be depressing, with the odd ray of hope. The first Nunavut electrical engineer, Joannie Pudluk of Resolute Bay, graduated this week from the University of Ottawa. But a long-term epidemic of suicide continues, as do its companions, joblessness and despair. “It's just too late in Nunavut,” a Globe & Mail headline recently screamed. “Few take advantage,” the sub-hed says, “of available help for chronic alcohol and drug abuse.” 
Nothing could sum up the underlying problem of Nunavut better than that. The territory is a classic instance of the contradictory Canadian policy towards aboriginal populations—supposed autonomy within a context of cheerless, hopeless dependency and continued colonization. Inuit children go to English-only classes starting from Grade Three. The Nunavut Public Service Act is cobbled together from other jurisdictions, and an Inuktitut/Innuinaqtun translation doesn't even appear to exist. Lip service is paid to traditional cultural values, Inuit Qaujimajatuqangit but even with consensus government, over-all governance is built upon the same model as in the South: hierarchy, power imbalances, fragmentation of the workforce, confrontation. The communities are simply put on welfare, and the symptoms of the resulting disease are then treated—and not very well. In short, Nunavut is presently suffering from all of the consequences of our Canadian version of indirect rule.
It is instructive to compare Nunavut with Kalaallit Nunaat, better known as Greenland. Greenland's fifty-six thousand people achieved home rule in 1979. More than 80% of the population is Greenlandic Inuit. Greenlandic and Danish are official languages, and the schools operate in Greenlandic. Greenlanders have a university in the capital city, Nuuk. Per capita income is the equivalent of nearly $21K US, and the unemployment rate of 10% is half that of Nunavut.

Greenland is not economically self-sufficient—half of government revenues consist of grants from the Danish government—but compared to Nunavut (90% of whose revenues come from the federal government), its economy is robust, if heavily dependent, at present, on the fishery and the public sector. Tourism is limited by the climate and season, and current mining possibilities will require some years to materialize.

Suicide among young people is a major problem in both Greenland and Nunavut, although Greenland
s statistics are marginally better, as they are for life expectancy. Given the Internet and television, it may be that young people in remote areas are presented with unbearable extremes: their probable future toiling in primary industries, or unemployed, and the lavish lifestyle showcased behind glass screens, forever out of their reach.

While Greenland is not Utopia, it still offers a startling contrast to Nunavut. Its relative success may be due to a form of self-government untrammeled by paternalism and chronic dependency, and to a people whose own values, language and traditions have pride of place in their own land.

We might profit from their example. Two commentators this week have called upon the federal government to employ Nunavummiut in its current push to maintain Arctic sovereignty. Paul Kaludjak argues forcefully that there are opportunities for Nunavummiut here. He points out that a band of Inuit hunters in 1969 stood in the way of the US supertanker Manhattan as it tried to negotiate the Northwest Passage. He advocates using the Nunavut Land Claims Agreement (NLCA) as part of an overall Arctic sovereigty strategy. Peter Wilson makes a similar case, suggesting that Nunavummiut be trained and employed to maintain Arctic sovereignty, at a fraction of the $3.1 billion cost now envisaged by the federal government to purchase patrol ships.

In the long term, a viable solution to chronic unemployment, poverty and dependency in remote Northern areas might be to participate fully in the knowledge economy, in which one’s immediate geography is not a limiting factor. Investment in informatics infrastructure and training would, at least on the surface, offer tremendous potential and hope. 

In the meantime, the federal government appears to have chosen the well-worn strategy of benign neglect, and is consequently facing a $1 billion lawsuit launched by Nunavut last December to force the full implementation of the NLCA—fourteen years after it was signed. And the suicide epidemic shows no signs of letting up.
—July 20, 2007 [Home]

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Holly White writes...

liked your article....

Residential schools and the speedy assimilation of the North (ie. 50 years) are what separates it from Greenland. Explains the rates of sexual abuse (above and beyond First Nations) which directly or indirectly explains the suicide rate.

Last updated August 14, 2012