Commentary on Labour Relations Review Reform in the RCMP

A. The Calls for Reform

In late 2007, the report of the House of Commons Standing Committee on Public Accounts and the Report of the Task Force on Governance and Cultural Change in the RCMP both called for changes to the labour relations review function of the RCMP in order to enhance accountability and transparency.

The External Review Committee is supportive of the broad objectives of accountability and transparency and is committed to supporting the Minister as he formulates a plan of action.

B. Renewing the Labour Relations Review Function - Six Key Points for Independent and Impartial Review of Labour Relations Matters in the RCMP

As part of the effort to support the Minister, the Committee is advancing six major elements to ensure a robust, independent and transparent labour relations review process. In the Committee's opinion, these are the most important elements for any new external review system, namely:

1. the labour relations review process should remain independent and arms length;

2 RCMP members should have direct access to the appeal process;

3. the external review body should be the final decision maker;

4. the scope of external review of labour relations matters should be broadened;

5. mediation should be introduced into the functions of the external review agency;

6. the external review agency for labour relations should have the resources needed to fulfill its expanded mandate.

1. The Labour Relations Process Should Remain Independent and Arms Length

As the Committee has previously stated, external review of labour relations matters is distinct from public complaints. Amalgamation of public complaints and labour relations review creates an appearance of conflict of interest, if not an actual conflict of interest. Public complaints are very different from employer/employee disputes. It is important to note that the bulk of the Committee's workload is reviewing grievance appeals. In these cases, the Committee examines a variety of human resources related issues. This is a significant aspect of its work which is not part of a public complaints review agency mandate. In addition, there are concerns about the appearance of impartiality for public complaints matters that eventually become the subject of a disciplinary review.

Further, there are risks to the independence of the labour relations review mandate, the potential for diminished public and member confidence, and the potential minimization of the labour relations review function in merging the two review functions into one agency. There is little or no benefit to be gained in having a single body handle both labour relations matters and public complaints issues. Indeed, in the Committee's view, the risks of doing so far outweigh any potential gains.

The Committee recommends a fully independent adjudicative body with the mandate to review labour relations issues, including grievances, disciplinary appeals, and discharge and demotion cases.

2. RCMP Members Should Have Direct Access to the Appeal Process

Currently, the Commissioner receives labour relations appeals, and refers cases to the Committee where required by law. Parties cannot appeal directly and there is no independent assessment or review of whether or not all eligible matters are being referred. In its submissions to the Task Force, and in other communications, the Committee has expressed its concern about the confusion with the statutory requirement of referability and the need for clarification in this area.

The Committee recommends a direct right to appeal by both parties to the new labour relations review body. This will increase transparency, accountability and member confidence in the labour relations review system.

3. The External Review Body Should be the Final Decision Maker

Currently, the Committee provides findings and recommendations to the Commissioner of the RCMP. The Commissioner is the final decision-maker. He or she is not required to follow the recommendations of the Committee, but is required to provide reasons in the event that the recommendations are not followed.

It is important to note that the Committee goes through a full adjudicative review of all cases before it, examining the evidence on the file, the issues and the relevant jurisprudence. In its presentation to the Task Force, the Committee stated that the change from a recommending body to a decision-making body would not be difficult, as the Committee already has the process in place suitable for either model.

The Committee recommends the existing system be modified by vesting the final decision making power in an external labour relations review body. In the Committee's view, this would add a greater degree of transparency and accountability to RCMP labour relations matters.

4. The Scope of External Review of Labour Relations Matters Should be Broadened

There are currently a variety of limitations on the right of appeal in RCMP labour relations matters. It is the Committee's position that parties should have the right to appeal grievance decisions, regardless of subject matter, and both (or all) the parties involved in a grievance, discipline case or discharge and demotion case should have the right to appeal to the external review body, on all grounds.

With regard to grievances, at present, many RCMP grievors are left without any access to independent review. Further, grievance respondents have no right to appeal.

By law, only five specific categories of grievances are referred for a Committee review (section 36 of the RCMP Regulations). Because only certain grievances are referred to the Committee, there can be, and there has been, confusion about what actually can be referred to the Committee and there has been some commentary that the categories should be broader.

In the discipline context, the RCMP Act does not give a full right of appeal of a disciplinary sanction to the Appropriate Officer.

The Committee recommends that all grievance appeals be eligible for independent review, rather than the limited category of grievances that are currently eligible for external review and that Appropriate Officers have a full right of appeal in disciplinary cases.

5. Mediation Should be Introduced into the Functions of the External Review Agency

Currently, there is no statutory provision for mediation at the external review phase. However, it is now recognized that a proactive mediation function at the appeal stage of a process can contribute to a positive and expeditious resolution of the dispute.

A mediation function would not be intended to replace a mediation system within the RCMP. It would be introduced to encourage mediation at the appeal stage and to increase efficiency by potentially reducing the number of cases subject to formal adjudication at this stage.

The Committee recommends an independent and neutral mediation service be incorporated into the new external review body to resolve issues prior to adjudication, where feasible and appropriate.

6. The Labour Relations Review Body Should have the Resources Needed to Fulfill its Expanded Mandate

As the Committee has noted previously, its resource base is limited. While it has received additional funding, this funding is shorter term funding. It is therefore challenged in its staffing because it cannot attract indeterminate staff at the present time for these additional positions, and cannot engage in longer term planning.

As the Task Force Report acknowledged, significant additional resources will be required to properly support any new system. New responsibilities such as mediation and outreach will need to be funded. A sufficient number of decision-makers and staff will be needed to meet what will almost certainly be expanding workloads. Also, any increase in the number of oral hearings will add to resource pressures.

The Committee recommends that the new external review body receive adequate permanent funding to ensure it can deliver on its mandate in a robust fashion.

C. Draft Model Legislation

The Committee also recommends that stand-alone legislation be used to create this new body. This would provide an effective and efficient method of strengthening the labour relations function. In addition, stand-alone legislation would allow more flexibility and provide a more accessible point for legislative revisions, if needed. Lastly, it would be distinct and separate from the RCMP Act itself, and reinforce the important message that the labour relations review function is independent, impartial and arms-length. Included with this commentary is draft model legislation, for discussion purposes.

For more information, please contact:

RCMP External Review Committee
P.O. Box 1159, Station B
Ottawa, ON K1P 5R2

Tel.: 613-998-2134
Fax: 613-990-8969
E-mail: org@erc-cee.gc.ca
Web Site: www.erc-cee.gc.ca