Part VIII - Revision of the OLA: Language of Work (Proposed Amendments)
The Royal Commission on Bilingualism and Biculturalism wrote the following about the right to work in either official language in the public service:
“Most of (our formal recommendations on the Public Service) are desirable on grounds of efficiency alone, but to this reason must be added the concept of the right to work in either of Canada's official languages. The main administrative need is to enlarge the range of situations in which French can be used for government work, particularly at the middle and higher levels, giving Francophone public servants a real possibility to work in their own language and to make their own positive cultural contribution to the work in hand.”[1]
Such a requirement flows directly from the principle of linguistic equality. Since this principle is enshrined in section 16 of the Canadian Charter of Rights and Freedoms, it must be asked whether this provision constitutionally guarantees the right of public service employees to work in their language. The answer is even more important in New Brunswick because, unlike the federal Official Languages Act,[2] the New Brunswick Official Languages Act is silent on the issue of language of work.
The courts have not yet decided whether section 16 of the Charter guarantees public servants the right to work in the official language of their choice. Some have concluded that this section does not grant public servants this right, since it would impose onerous and unreasonable obligations on the government[3]. Others, including myself, have argued that this section gives public servants in the federal Parliament and government and in the New Brunswick Legislature and government the right to use English and French as languages of work.[4] There is no doubt that this section, which enshrines the equality of the two official languages in federal and New Brunswick government institutions, is the only provision that can guarantee the right of public servants to work in the official language of their choice. Indeed, how can there be equality of the official languages if employees are permitted to work in one language and not the other. This right is not absolute, however, and must be reconciled with the right of the public to receive government services in the official language of their choice, which is guaranteed by section 20 of the Charter.
The right of the public under section 20 is in no way incompatible with the right to work in the official language of their choice. Section 20 clearly imposes a positive obligation on governments to provide services in the language of choice of their recipients. This provision clearly favours the public's language choice at the expense of that of government officials. As some authors point out:
"The idea of conflict raised here arises from a conception of the state that is reduced to its individual agents. It requires, moreover, that the public's right in this area be found to conflict with an analogous right of public servants. The very notion of conflict implicitly precludes the idea that the government has broader obligations than those of its officials. The conflict is eliminated when the government is no longer conceived of as simply the collective of its officials. In other words, in language rights, the government's obligations are not imposed on individual public servants, but on the government as a whole. In this way, the government is required to organize services in such a way as to be able to accommodate users in their own language, and it thus becomes possible to respect the language choice of citizens without infringing the individual rights of public servants."[5]
Although the right of New Brunswick public servants to work in their language is guaranteed by section 16 of the Charter, it is not yet recognized in the Official Languages Act. With respect to language of work, successive provincial governments have instead chosen policies and guidelines that have no legal effect.
New Brunswick's first official languages policy, adopted in 1988, was based on a two-pronged approach: language of service and language of work. The provisions dealing with language of work were so general and non-binding that they did not pave the way for francophones to be able to work in their language within the government apparatus. In 1996, a study on the effectiveness of the 1988 policy concluded that (Translation)"it is much more difficult to use French than English as a language of work in government. The report notes that there is a gap between the intentions of the policy to create a workplace conducive to the use of both official languages and the reality”.[6] Is it not alarming that the authors of the 2015 Official Languages Plan, almost twenty years later, come to the same conclusion: "it is very difficult, if not impossible, to work in one’s language of choice if that language is French"?[7]
The authors of the 1996 Report also noted that, in the course of their work, English-speaking public servants, on average, (Translation) "read in English 96% of the time, write in English 98% of the time, and speak in English 95% of the time. Francophone public servants, on the other hand, (Translation) "read in French 40% of the time, write in French 51% of the time, and speak in French 60% of the time"[8]. These figures would be even lower if one were to exclude from this statistic those public servants who work in the francophone sector of the Department of Education.
The authors go on to say that (Translation) "19% of French-speaking employees reported that they had lost some or a great deal of skill in their first language. The vast majority of representatives of both language groups said they had improved or maintained their English skills. On the other hand, 18% of Anglophones also indicated that they had lost skills in their second language”.[9] Another telling finding is that "Francophone public servants feel that there is a serious lack of bilingualism in the senior public service”.[10]
The Commissioner of Official Languages, Katherine d'Entremont, made a similar finding in her 2014-2015 Annual Report. I have discussed the findings of this report in a previous blog text dealing with the implementation of the Act, but I think it is important to repeat them here. Commissioner d'Entremont said that official bilingualism has never meant that all government employees must speak both official languages. Based on the latest government data, she showed that only 41% of provincial public service employees are required to be bilingual.[11] She expressed surprise at such a state of affairs: "However, one would expect those primarily responsible for applying the OLA, i.e., senior public servants, to be required to speak both languages. But, in Canada’s only officially bilingual province, no policies or guidelines make it a requirement”.[12] She listed several reasons for this phenomenon, grouping them into four categories, justifying the fact that bilingualism is an essential skill for senior public service positions:
Communicating with the two linguistic communities[13]
Ensuring the quality of bilingual services provided to the public[14]
Creating a bilingual work environment[15]
Embodying one of the province’s fundamental values[16]
The authors of the 2015 Plan noted that one of the reasons Francophone public servants have difficulty working in their language is " the presence of unilingual senior officials”.[17] Unfortunately, the message does not seem to have been heard in Fredericton.
When one considers the negative consequences of a unilingual workplace, the inaction of successive provincial governments in the area of language of work is difficult to explain, other than the political motives behind their refusal to act. As the authors of the 1996 Report noted, such a situation risks causing French-speaking public servants to lose their first language, and English-speaking public servants to lose their second language.
Moreover, a unilingual English-speaking work environment is detrimental to the vitality of the minority language. Indeed, its speakers come to consider that their language has no place in the workplace. The resources devoted to training English-speaking public servants in their second language are wasted if they do not have the opportunity to speak or use it in the course of their duties.
Despite the findings of the 1996 Report, it was not until 2009 that the government amended the Language of Work Policy.[18] According to the provincial government, the new policy "clarifies the policy direction with the addition of guidelines for its application”.[19] The policy is intended to "assist and guide provincial departments, institutions and agencies in providing a work environment that encourages and enables employees to work and pursue a career in their official language of choice”.[20] The objective is "to promote the use of both official languages by employees in provincial departments, institutions and agencies”.
While this policy is a step in the right direction, nowhere does it specify the right of public servants to work in the official language of their choice, a right that flows, as I have indicated, from section 16 of the Charter. Moreover, as the authors of the 1996 Report and the 2015 Plan pointed out, the language of work in the provincial government generally remains English. Change in this regard will require greater leadership from senior government and policy makers, which is still sorely lacking today. It will also require that policy makers fulfill their responsibilities and clearly define in the Official Languages Act the responsibilities of provincial institutions in this area. Recognition in the Official Languages Act of the right to work in one's own language would provide a remedy for those whose rights are being infringed upon that does not exist at all in the current policy.
In her 2013-2014 Annual Report, Commissioner of Official Languages d’Entremont asked: "How does government provides bilingual services?" Her findings are revealing and reflect a lack of government commitment in this area.
To provide bilingual services to the population, the policy calls for a "team approach". This involves grouping employees into functional teams and using their language skills to provide services to the public in both official languages. The language capacity of each team may vary. The policy states, for example, that teams that have a lot of interaction with the public, provide specialized services, or work in areas where English and French communities coexist will require greater English and French language capacity than teams that have little interaction with the public or work in areas where one language predominates.
Once the bilingualism requirements have been identified, the language profile is determined, i.e., the number of bilingual and unilingual individuals needed to provide services in both official languages. According to the 2013-2014 Annual Report of the Commissioner of Official Languages, as of March 31, 2013, the linguistic profile required 39% of employees to speak both official languages, 51% of employees to speak English, 5% of employees to speak French, and 5% to speak English or French[21].
It should be noted that bilingualism requirements are related to the composition of the work team, and not to specific positions. Strangely, there is no mention of the level of second language proficiency required for employees who must be bilingual.
There is indeed a Staffing Policy Manual[22] dealing with language requirements. This Manual states:
"When recruiting for a position with a bilingual requirement, departments must ensure that a level of language proficiency necessary for the position is selected prior to evaluating candidates (…) This level must be based on the requirements of the position as well as the ability of the position’s linguistic profile team to meet its obligations with respect to the policies on Language of Work and Language of Service[23]."
The Staffing Policy Manual also states that candidates must present or have obtained a certificate in oral proficiency before they can receive a job offer. Only the oral interaction assessment is mandatory. Written language assessments are not required.
The Commissioner of Official Languages noted in her 2013-2014 Report that while the Staffing Policy Manualrequires departments to determine the level of language proficiency required for bilingual positions, it does not mandate that this level be indicated on the competition notice[24]. Establishing the required level of bilingualism appears to be related primarily to the language profile of the team, rather than the nature of the position. In other words, the bilingualism requirement is a condition that is established to respect a number of bilingual employees on a team and not to ensure the provision of service of equal quality in the other official language.[25]
The only monitoring of language skills is to review the language profiles of teams. Since these profiles only indicate the number of unilingual and bilingual individuals on a team and not the language skills required of each team member, they do not allow for an assessment of the quality of services provided in each official language.[26]
With respect to required levels of second language proficiency, Commissioner d’Entremont noted that there is no expertise within the government to guide departments in setting them. The provincial scale[27] describes in general terms the abilities of each level, but does not provide any indication of the recommended levels for various categories of positions.[28] The Commissioner noted that "Although no official document prescribes it, it seems that the Intermediate Plus (2+) level of language proficiency is the minimum level that a department can use in a job posting”[29]. While this level of proficiency may be sufficient for some job categories, "professionals and other employees who must provide substantive information to clients require advanced or superior proficiency in the second language."[30]
Second language certificates are valid for a three-year period. However, once that period has expired, there is no requirement for the employee to retake a proficiency test[31]. The lack of a rule regarding renewal therefore may result in an employee holding a level of language proficiency that is no longer accurate.
I therefore propose:
- that the provincial government's policy on language proficiency requirements for its employees be reviewed to ensure equal quality of service in both official languages, and to ensure its compliance with legislative and constitutional obligations
- that the Official Languages Act be amended to recognize:
o English and French are the languages of work in provincial institutions and public servants have the right to use either official language in the performance of their duties.
o it is the responsibility of institutions to ensure that the work environment is conducive to the effective use of both official languages
o it is incumbent upon institutions:
§ to provide their staff with work tools and documentation that respect the official language chosen by the employee;
§ to ensure that computer systems can be used in either official language;
§ to ensure that supervisors are able to communicate with their subordinates in the official language chosen by the latter and that senior management is able to function in both languages;
§ to ensure that all other possible measures are taken to create and maintain a work environment conducive to the effective use of both official languages and that employees are able to use either official language in the performance of their duties.
- that the Government commits to ensuring that English-speaking and French-speaking New Brunswickers have equal opportunities for employment and advancement in provincial institutions.
- that the Government commits to ensuring that the workforce of provincial institutions tends to reflect the presence in New Brunswick of both official language communities.
- that the Government commits to ensuring that the language skills of its employees are regularly assessed through objective proficiency testing.
- that the Government commits to ensuring that language proficiency for a position is determined in advance based on objective criteria and not on the proficiency of the work team.
- that the right of the public to be served in the language of their choice takes precedence over the right of the public servant to work in the official language of their choice.
[1] Davidson Dunton and André Laurendeau, Report of the Royal Commission on Bilingualism and Biculturalism, Ottawa, Queen’s Printer, 1967-1970, Book III, Federal Administration, p 180 [Report of the Royal Commission].
[2] See, Official Languages Act, RSC 1985, c. 31 (4th suppl), Part V – Language of Work.
[3] B. B. Pelletier, «Les pouvoirs de légiférer en matière de langue après la “Loi constitutionnelle de 1982”» (1984) 25 C de D 227.
[4] See J. Klinck, «Le droit à la prestation des services publics», in M. Bastarache and M. Doucet, ed. Les droits linguistiques au Canada, 3rd ed. Cowansville (Qc), Yvon Blais, 2013, p 523; P. Hogg, Constitutional Law of Canada, 5th ed, loose sheets, Scarborough (ON) Thomson/Carswell, 2007, para 56.6(a); and M. Doucet, «Langues et droit constitutionnel», Fascicule 12, Droit constitutionnel, JurisClasseur Québec, LexisNexis, p 12314, para 21.
[5] Klinck, «Le droit à la prestation des services publics», Ibid. p 524.
[6] New Brunswick, Government of New Brunswick, Bonjour! A Study on the Effectiveness of New Brunswick’s Language Policy, 1996, pp 6-7 [1996 Report].
[7] New Brunswick, Government of New Brunswick, Plan on Official Languages- Official Bilingualism: une A Fundamental Value, 2015, p 12 [2015 Plan].
[8] 1996 Report, supra, p 6.
[9] Ibid.
[10] Ibid.
[11] Annual Report 2014-2015, p 18.
[12] Ibid.
[13] Ibid. p 20.
[14] Ibid. p 21.
[15] Ibid.
[16] Ibid. p 22.
[17] 2015 Plan, p 12.
[18] Government of New Brunswick, Administration Manual, no AD-2919, vol 2, Official Languages - Language of Work Policy and Guidelines, online: < https://www2.gnb.ca/content/gnb/en/departments/finance/human_resources/content/policies_and_guidelines/language_work.html [Policy – Language of Work].
[19] New Brunswick, Official Languages: Straight Talk on Language of Work, online: < https://www2.gnb.ca/content/gnb/en/departments/finance/human_resources/content/policies_and_guidelines/talk_language_work.html >.
[20] Policy – Language of Work, supra.
[21] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2013-2014, online: < https://officiallanguages.nb.ca/wp-content/uploads/2012/02/2013-2014_annual_report.pdf> p 18.
[22] Department of Human Resources, AD-4100: Staffing Policy Manual, effective date: December 1, 2009 (last updated: August 25, 2015), online: < https://www2.gnb.ca/content/dam/gnb/Departments/ohr-brh/pdf/other/staffing_policy_manual.pdf >.
[23] Annual Report 2013-2014, p 22.
[24] Ibid.
[25] Ibid. p 25.
[26] Ibid. p 26.
[27] Ibid. p 21.
[28] Ibid. p 26.
[29] Ibid.
[30] Ibid. pp 26-27.
[31] Ibid. p 27.