Report of the CIU Standing Equal Opportunities Committee

National Board of Directors Meeting

April 2010

 

 

Chair:                                      Karen Church

 

Committee Members:             Francine Stuart

                                                Janina Lebon

 

Resource Person:                   Laurel Randle

 

 

Employment System Review

Employment systems review is an in-depth assessment—carried out by the employer—of all employment,  systems, policies and practices and of the manner in which these are implemented, in order to identify barriers to the employment of designated group members. The review must cover both formal and informal employment systems, policies and practices and must also include attitudes and behavioural barriers that may be limiting the employment opportunities of designated group members. The review will usually include focus groups and/or interviews with employees, union representatives and managers.

CBSA has undertaken to conduct an employment system review. Modi Consulting has been contracted for this review and their mandate is to identify barriers within various employment systems. The Consultant is using the CHRC’s guide in conducting this. At the last UMEEC Meeting in June, the Union was told that the ESR was on hold due to budget restraints and would be revisited in September. The November NUMEEC Meeting was cancelled and has never been rescheduled.

A call letter went out for members to take part in telephone interviews. I spoke with Shenaz Modi. She indicated that this review was being conducted because CBSA was being audited by the CHRC. There are nine statutory requirements for the audit.

Shenaz Modi interviewed 10 focus groups including Headquarters, Staff, Rigaud Instructors, CBSA Superintendants and BSO’s. She found a lot of issues with moral, demoralization, and a poisoned work environment.  There were also barriers found in hiring.

Once the ESR Report is done, Modi will draft an EE Plan and make her recommendations. CBSA then has to consult with the Union.

CLOSURE OF CHRC OFFICES

The Harper Government has decided to close three CHRC Offices in Vancouver, Toronto and Halifax. These Offices received 70 per cent of all signed complaints to the CHRC in 2008. The Union maintains that these closures will make it harder for individuals from marginalized groups to launch Human Rights Complaints. It will have a major impact on racialized people and immigrants. The closure will make it much more difficult to challenge both systemic abuses and individual instances of discrimination.

PSAC will fight the closures and continue to fight the Harper Government’s attacks on democracy and human rights.

Independent Third Party Review of the CBSA Report

The CIU received the final version of the ITPR of the CBSA report on April 7/10.

The report is 516 pages with 10 recommendations and 17 findings related to BFOR.  CIU has requested that CBSA have this report translated so that it can be distributed to the Board of Directors. The first response to this request was that CBSA was trying to contract this out and the only response they received was that it would take at least 50 days. They are looking for another company that can do it faster.

The CBSA has requested an extension for their final decision relating to the BFOR to June 3/10. CIU has agreed to the extension having received a commitment that they would consult with the Union prior to coming to the final determination.

The Executive Summary is attached to this report.

The Review has been sent to Lisa Addario, PSAC legal, for her analysis. Lisa will be attending the Board meeting Friday morning.

Thanks to the EO Committee Members Sisters Francine Stuart and Janina Lebon and also to the LRO Laurel Randle for her support and guidance.

                                                                                                 

This report is respectfully submitted,

 

 

Karen Church

Chair

Independent Third Party Review of the CBSA Report:                                                                                     

An Examination of the CBSA Occupational Requirement to Complete Control and Defensive Tactics and Arming Training

Richard W. Grounds

Chapter 1: Executive Summary

CBSA has prepared a report outlining what CBSA work duties require CDT and arming training and what alternative delivery options can be used to accommodate officers who cannot be CDT qualified or armed. CBSA and CIU agreed to hire an independent third party to review the CBSA report.

Employers have a duty to accommodate to the point of undue hardship where an employee raises a prima facie ground of discrimination due to a standard imposed by the employer. Discrimination can be justified where the standard that must be met constitutes a bona fide occupational requirement. CBSA has instituted a standard that CBSA officers performing certain work duties must successfully complete CDT and arming training and seeks to justify the standard as a bona fide occupational requirement.

In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court of Canada adopted a three step test applicable to cases where an employer is claiming a Bona Fide Occupational Requirement (“BFOR”) justifies a discriminatory practice.

(1)      that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2)      that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3)      that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

CBSA is a law enforcement agency.  The concepts of risk and officer safety are paramount when examining issues of accommodation in a law enforcement context.  Risk to officer and public safety can amount to undue hardship where the consequences of the risk are too grave to allow. 

The following factors can be used to assist with determining the applicable level of risk that impacts on undue hardship for each work duty:

There are numerous front-line operational work duties that require an officer to be armed.  There are also numerous work duties that require an officer to be CDT trained.  In cases where CDT and firearms training are bona fide occupational requirements, accommodation would amount to undue hardship.  In all other cases, accommodation must be considered.

Individual factors that can influence an accommodation analysis can vary greatly for each situation.  Accordingly, where CDT and arming training have not been found to be a bona fide occupational requirement for a particular work duty, a determination concerning accommodation will require that an individualized accommodation analysis be conducted.  Each case must be decided on its own specific facts; it is not possible to implement a rule that will apply to all situations.

The available data from the CDT training course suggests that there might be an issue related to age discrimination.  Given there is insufficient data to determine if this is the case, CBSA must correlate and analyze the data related to CDT training.

The CBSA Duty Firearm Course raises several possible grounds of prima facie discrimination due to age, gender and physical disability.  The available data from the Duty Firearm Course reveals a high failure rate amongst officers 50 years of age and older and for female officers.  In addition, there are issues related to physical disability on the face of the Duty Firearm Course, in particular related to hand/arm and eye disabilities.  CBSA must attempt to determine the underlying causes for these issues and, if applicable, implement appropriate changes.

The CBSA Course of Fire utilizes a 25m qualification distance which could potentially discriminate against an officer with an eye disability.  In such a case, CBSA would be unable to justify the 25m distance qualification as being reasonably necessary for the safe performance of CBSA officer duties.  Accordingly, CBSA should reduce the maximum qualification distance to 15m, consistent with many other law enforcement agencies.

 

Summary of Recommendations:

Recommendation No. 1:

CBSA should review its CDT training records and correlate the data related to name, age, gender, outcome, detailed reasons for failure or withdrawal and notable significant difficulties.

 

Recommendation No. 2:

CBSA should maintain centralized records for CDT training including data related to name, age, gender, outcome, detailed reasons for failure or withdrawal and notable significant difficulties.

 

Recommendation No. 3:

CBSA should examine the existing data from the Duty Firearm Course to determine why the failure rate for older officers is significantly higher than for younger officers.

 

Recommendation No. 4:

As part of its review of the Duty Firearm data CBSA should correlate the existing data related to name, age, gender, number of qualification attempts, outcome, detailed reasons for failure or withdrawal and notable significant difficulties.

 

Recommendation No. 5:

CBSA should maintain future data for the Duty Firearm Course including data related to name, age, gender, number of qualification attempts, outcome, detailed reasons for failure or withdrawal and notable significant difficulties.

 

Recommendation No. 6:

CBSA should assign someone with appropriate skills to monitor future Duty Firearm Courses on an ongoing basis to identify potential human rights issues and to make recommendations to resolve the issues.

 

Recommendation No. 7:

CBSA should examine the existing data from the Duty Firearm Course to determine why the failure rate for female officers is significantly higher than for male officers.

Recommendation No. 8:

CBSA should reduce the maximum qualification distance from 25m to 15m but should continue to train at 25m.

 

Recommendation No. 9:

CBSA should implement a policy to ensure that individuals are subject to a risk assessment before entering a port office at a land border.

 

Recommendation No. 10:

CBSA and PSAC / CIU should consider re-classifying the current CBSA officer positions based on the nature of the duties, i.e. enforcement or administrative.

 

Summary of Findings Regarding Duties that Require CDT and / or Arming Training

Finding No. 1:

Firearms training is a bona fide occupational requirement for the work duties performed at primary examination at a land border.

 

Finding No. 2:

Firearms training is a bona fide occupational requirement for the work duties performed at roving at a land border.

 

Finding No. 3:

Firearms training is a bona fide occupational requirement for the work duties performed at secondary (customs) examination at a land border.

 

Finding No. 4:

Firearms training is a bona fide occupational requirement for the work duties performed at secondary (remote clearance) at a land border.

 

Finding No. 5:

Firearms training is a bona fide occupational requirement for the work duties performed at marine primary examination.

 

Finding No. 6:

Firearms training is a bona fide occupational requirement for the work duties performed at marine secondary examination.

 

Finding No. 7:

Firearms training is a bona fide occupational requirement for the work duties performed at marine secondary terminal / docks.

 

Finding No. 8:

Firearms training is a bona fide occupational requirement for the work duties performed at marine secondary (offsite or remote clearance).

 

Finding No. 9:

CDT training is a bona fide occupational requirement for the work duties performed at air roving.

 

Finding No. 10:

CDT training is a bona fide occupational requirement for the work duties performed at air point.

Finding No. 11:

CDT training is a bona fide occupational requirement for the work duties performed at air secondary examination.

 

Finding No. 12:

CDT training is a bona fide occupational requirement for the work duties performed at airside enforcement.

 

Finding No. 13:

CDT training is a bona fide occupational requirement for the work duties performed at secondary aircraft examinations.

 

Finding No. 14

CDT training is a bona fide occupational requirement for the work duties performed at secondary CANPASS and other small aircraft.

 

Finding No. 15:

CDT training is a bona fide occupational requirement for the work duties performed at air sufferance or other warehouse.

 

Finding No. 16:

CDT training is a bona fide occupational requirement for the work duties performed doing escorts by air.

 

Finding No. 17:

CDT training is NOT a bona fide occupational requirement for the work duties performed in the postal mode of operation.