Proceedings of the Standing Senate Committee on
Science and Technology
Issue 1 - Evidence
Ottawa, Tuesday, March 26, 1996
The Standing Senate Committee on Social Affairs, Science and Technology met this day, at 9:30 a.m., to organize the future business of the Committee.
Ms Jill Anne Pickard, Clerk of the Committee: Honourable Senators, I see the quorum. As the clerk of the Committee, it is my duty to preside over the election of the Chair.
I am ready to receive motions to this effect.
Senator Cohen: I nominate Senator DeWare as chairperson of the committee.
Ms Pickard: It is moved by the Honourable Senator Cohen that the Honourable Senator DeWare be elected chairperson of the committee. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms Pickard: Carried. The Honourable Senator DeWare is elected as chairperson of the committee. I invite her to take the chair.
Hon. Mabel M. DeWare (Chairman) in the Chair.
The Chairman: I would like to thank you very much for this opportunity, honourable senators. I hope that I can live up to the expectations of the committee and of my leader, who asked if I would be interested in taking on this chairmanship.
As honourable senators know, I have been a committee member since 1990 and have enjoyed the work in this committee. I know this will be a very busy spring for us with Bill C-12 coming to us. I hope we will work well together and proceed to do some good work in this committee that will be profitable for the future of Canada.
The next item on the agenda is the election of a deputy chairman.
Senator Rompkey: Madam Chairman, I nominate a senator who is a long-standing, distinguished and eminent senator: Senator Bosa.
Senator Cools: I move that nominations be closed.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
We also have a subcommittee for agenda and procedures which helps to decide the agenda for this committee. One more senator is appointed to that committee. We can do that today or leave it to the discretion of the chair and the deputy chair. It is up to the committee.
Senator Lavoie-Roux: I suggest that we leave it up to you.
The Chairman: Is that fair, Senator Bosa?
Senator Bosa: I think so, Madam Chairman.
The Chairman: The next item on the agenda concerns the printing of our proceedings. Honourable senators will see in the agenda you have before you that it is suggested that 500 copies be printed for distribution. It is customary to print that many copies of our proceedings. Some 300 copies are required for internal use; the other 200 copies are distributed as requested. When there is a special committee or something for which we receive a lot of calls, we can always extend that number through a motion of this committee. If the number 500 is agreeable, I will entertain a motion to that effect.
Senator Rompkey: What happens to the other 200?
The Chairman: They go to libraries across Canada.
Senator Lavoie-Roux: Unless it is a very special subject, how many people look at them?
Senator Bosa: I feel it is justified to send these to the libraries because there are topics in which people are very much interested. If they have access to the library, they can keep themselves informed as to the debates that take place or the decisions that are made.
The Chairman: Our Clerk tells us, Senator Rompkey, that they have already done a study on this matter and find that the number of copies which are not used or distributed comes to about 20 copies.
Senator Rompkey: Of those which are distributed, can libraries not access them through the Internet?
Senator Bosa: We do not have that capability yet.
Senator Rompkey: Are the Debates of the Senate not on Internet?
The Chairman: They will be, eventually. I think we have this discussion nearly every year. This number has been reduced by 200.
Ms Pickard: It used to be 500, but it was 500 for internal use. Now, we have only 300 for internal use and 200 for the depository services through Canada Communications Group, the Queen's Printer.
We have added about 20 extra copies to our usual numbers.
We are now doing all the printing in house, which is why 500 are needed.
Senator Rompkey: The thing to do would be to review it this year and see if 500 is an appropriate number.
Ms Pickard: I can bring the statistics to you, if you like.
The Chairman: In the meantime, may we have a motion that the committee print 500 copies of its proceedings and that the chair be authorized to adjust this number to meet demand?
Senator Bosa: I so move, Madam Chairman.
The Chairman: Is it agreed, honourable senators?
Senator Lavoie-Roux: Under the condition that this is followed closely.
Hon. Senators: Agreed.
The Chairman: Carried.
The sixth item is a motion to hold meetings and to print evidence when a quorum is not present. Our rules allow us to hear witnesses and to continue our meetings even though there is not a quorum. The only reason we could not hold a meeting without a quorum would be to take a vote. Therefore, I need a motion to this effect.
Senator Lavoie-Roux: I do not agree with this. If we bring witnesses in, there should be a quorum. Tomorrow you may decide to hear someone and no one may even be aware of it.
The Chairman: We do not usually do that.
Senator Lavoie-Roux: What number constitutes a quorum?
Ms Pickard: Four.
Senator Rompkey: This is not an unusual move. Many committees have it. I think you could argue it the other way around. If you bring a witness from a long distance and he has prepared a brief and has spent a lot of time on it and a member of the committee does not show up that day because they are sick or stuck in a snowstorm or whatever, it would be unfair not to hear that person simply because there is not a quorum. The quorum could turn up during the day, but you could start without a quorum. We almost have to have such a provision in deference to the witnesses.
Senator Bosa: Madam Chair, I can attest to the importance of this because when I was chairing the Free Trade Agreement, we used to schedule meetings three, four or five weeks ahead and then when the Senate was not sitting, it was sometimes difficult to have a quorum, but then two or three committee members would hear the witnesses so they would not have to be rescheduled and then would pass on their testimony to the rest of the committee.
Senator Lavoie-Roux: I think there should be at least three or four people present at each meeting.
Senator Bosa: That is true, but in certain situations you cannot help it.
Senator Lavoie-Roux: Okay. Go ahead.
The Chairman: There is a rule in the Rules of the Senate that deals with this particular section, Rule 89. It says:
A quorum is required whenever a vote, resolution or other decision is taken by a select committee ...
Senator Rompkey: I wonder if we could amend that.
The Chairman: The rule continues:
... but any such committee, by resolution thereof, may authorize the chairman to hold meetings, to receive and authorize the printing of evidence when a quorum is not present.
We are not using this as something that we plan to do. This is just in case there is no quorum. It gives us the opportunity to go ahead and hear the witnesses.
Senator Rompkey: I wonder if we could indicate that a representative from each party must be present. Would that be in order? The way it reads now, one committee member could hold a meeting.
Senator Lavoie-Roux: Yes. The chairman could call someone in.
Senator Rompkey: I think we should stipulate that there be one person in from each side.
Senator Cools: That is stipulated, although not by formal motion. It is done by agreement.
Senator Rompkey: Could we just add a line saying, "...to hold meetings, to receive and authorize printing of evidence when a quorum is not present, as long as a representative of each party is present"?
Senator Lavoie-Roux: I like that. At least we will have two people present.
The Chairman: Did you wish to speak to this, Senator Cools?
Senator Cools: I was just reinforcing the statement by the chairman that that is the practice. When the staff prepares this, it is pretty stock stuff, but it is my understanding, and we all agree, that we do not proceed without the presence of both sides.
The Chairman: The Chair certainly would not.
Senator Cools: It is nice to rearticulate it and reconfirm it once in a while.
The Chairman: So is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Item number 7 on the list is the financial report. I believe our clerk has the report from the last year's proceedings. It has to be reported to the Senate. Would an honourable senator move this be done, please?
Senator Bosa: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried. Apparently, there are no expenses from last year.
Ms Pickard: No.
Senator Lavoie-Roux: We did so little work.
The Chairman: Maybe we will initiate some work.
The next item is number 8, which deals with research staff. We Need a motion that the Library of Parliament assign a research officer to the committee. It says "or/and." I think we should suggest that we include the "and" in this case because with Bill C-12, and other legislation that may be coming before us, there is a possibility we would be looking for extra help in this area.
Senator Rompkey: Absolutely.
The Chairman: I will entertain a motion to that effect.
Senator Cohen: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Item number 9 deals with the authority to commit funds.
Senator Lavoie-Roux: Just a minute. There is just one thing that bothers me regarding item number 8. I am in agreement with that but I have a problem with the last paragraph, which authorizes the chair, on behalf of the committee, to direct the research staff in the preparation of studies, analyses and summaries. I must tell you of the experience I had, not in this committee but in another committee, where there was manipulation of the researchers by the chairman. I think it should be the steering committee or at least the chairman and vice-chairman. I think you know the situation I am discussing.
The Chairman: Why do not we just change "the chair" to "the steering committee"?
Senator Lavoie-Roux: All right.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
The next item deals with the authority to commit funds and certify the accounts. As you know, this allows us the opportunity to pay expenses, if they arise, and we have to have this authority, is that correct?
Hon. Senators: Agreed.
The Chairman: Do you think we should come up with an expense account?
Senator Lavoie-Roux: Of course, the role of the vice- chairman is to act in the absence of the chairman, but I do not think funds of the committee should be spent only under the authority of the chair. It should, again, be under the authority of the steering committee.
Senator Bosa: But what if we have a bill to pay or the expenses of one witness?
Senator Lavoie-Roux: If there are expenses that have already been authorized, then you do not need three people to sign for them.
The Chairman: I do not think we could do that without bringing it to the whole committee for approval.
Senator Bosa: It is not authorizing expenditures; it is certifying.
Senator Lavoie-Roux: No. It says, "...authority to commit funds be conferred on the chair". So it is the chair, or the deputy chair, who can take it on his or her own to spend money.
The Chairman: You should look at the next page.
Senator Cools: There is no money that the chairman can spend.
The Chairman: This particular section is exactly what is in all committee organizational meetings.
Senator Lavoie-Roux: That is okay if there is a bill that comes in, because somebody has to authorize the payment of that, but the paragraph before says that you can commit the funds.
The Chairman: If we are going to commit funds, that still has to go before the committee.
Senator Cools: Precisely. Everything comes before the committee anyway.
The Chairman: Suppose we decide to hire a particular researcher and we sign a contract with that researcher for so much money, this just gives the chair the authority to sign the contract, but this committee would have to agree to the contract.
Senator Lavoie-Roux: For every expense that you will sign or approve, it will have come to the committee beforehand?
The Chairman: Yes. The budget has to come before this committee.
Senator Lavoie-Roux: Okay. I just say that because, as you know, committees are very expensive, let us face it. When I see the expenses of some committees, I become concerned.
The Chairman: Any decisions that the steering committee makes must be brought to this committee for approval, so I think you have a good watchdog here.
Senator Lavoie-Roux: All right.
The Chairman: If it does not work, we will let you remove us from office.
Senator Bosa: You can impeach us.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Item number 10 deals with the travelling and living expenses of witnesses. That is the usual motion, but what has been put in there, of course, is reimbursement for reasonable travel and living expenses and not for more than two witnesses from one organization.
Senator Bosa: Why is that limited to two? I have seen delegations come with more than two.
The Chairman: That is right, but now we let them know of this limit ahead of time.
Senator Rompkey: Most of them sit there and say nothing.
The Chairman: We are prepared to pay for only two.
Senator Bosa: I recall having three or four aboriginal people testifying on some bill we had before us. Are we putting ourselves in a straightjacket?
Ms Pickard: You would not have the option of having more now. Internal Economy amended the guidelines for witness expenses at the beginning of March, limiting all committees to a maximum of two per organization.
The Chairman: Could I have a motion to approve that?
Senator Rompkey: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
The next item deals with the time slot for our meetings. This is the time slot that has been allotted to the Social Affairs Committee and it is been this way for years.
Senator Lavoie-Roux: Perhaps we could move it to ten o'clock and then we could carry on until 1 p.m.
The Chairman: Every Tuesday, your government have a caucus meeting here at noon.
Senator Lavoie-Roux: Can we find another room?
The Chairman: If we found another room, we would still have to finish by noon, so that would give us two hours.
Senator Cools: After that, you would not have us with you because we could not meet.
Senator Bosa: Why do not we start at 9 a.m.?
Senator Lavoie-Roux: That is too difficult for me. I have meetings in Montreal on Monday nights because the Senate does not sit on Monday.
The Chairman: What time can you get here, Senator Losier-Cool?
Senator Losier-Cool: I can be here at 9:30 or really at nine.
Senator Rompkey: I am trying to recall when the Energy Committee meets. I just came from Energy and I left them before they finished, to get here by 9:30. I do not know if that is their regular hour of sitting, but if it is, then I would have a problem.
Senator Cohen: We need you.
The Chairman: This is the time allotted to us by the whips in the Senate. It is not our decision.
Senator Bosa: To go beyond eleven o'clock, we would be in conflict with the other committees and with the use of committee rooms with other requirements.
The Chairman: We will have to try our 9:30 to 11 for now and if it does not work, or if it gets complicated, we will have to talk to our whips and see if we can find a different time.
Senator Cohen: Does Energy always sit on Tuesday at nine?
Senator Rompkey: I cannot recall. We just dealt with the same item but I did not pay attention to what time was allotted.
Senator Lavoie-Roux: I am surprised. I know that Senator Carney used to be chairman, and I doubt she would be available at nine unless she came the day before.
Senator Rompkey: Senator Ghitter is the chairman now.
The Chairman: We will work on the time slot.
The next item deals with other matters to come before this committee. You know we have one bill assigned to us. It is Senator Haidasz's Bill S-5. We have it, if you would all like a copy.
We know Bill C-12 is coming.
Senator Rompkey: Is that the bill dealing with employment insurance?
The Chairman: Yes. Our people in the system tell us that we may not get it before the end of April or even later.
Senator Bosa: I believe we may be getting it on April 15 or 16.
The Chairman: You think it will come out of the House by then?
Senator Bosa: That is what I hear.
The Chairman: They are going to have a two-week Easter break and not come back until April 14. Has anyone discussed prestudy on this bill?
Senator Bosa: Madam Chair, I was wondering if Bill S-5, or the equivalent that was previously before the house, was considered by the committee.
The Chairman: No. It has just been reintroduced and has now been referred to us.
Senator Bosa: It has not been before the committee previously?
The Chairman: This is the first time.
Senator Bosa: The subject matter is identical to the previous bill that Senator Haidasz presented in the Senate. I am just wondering what stage the bill was at when we prorogued.
Senator Haidasz: In a previous session, it was called S-14. It was referred to the committee but was never studied.
Senator Bosa: All right.
The Chairman: With your permission, after today's meeting, Senator Bosa and I will discuss having some witnesses come before our committee to deal with Senator Haidasz's Bill S-5.
Senator Cohen: I have a question. There has been a discussion in Internal Economy to the effect that when budgets are prepared by committees, we should consider an overall budget for communications. I notice that Banking got tremendous publicity because they had their own communications person. We will be getting a lot of publicity when we start to study the employment insurance bill, and I think we should look at a communications package, a financial package, for our future work.
Senator Lavoie-Roux: Is there not going to be any longer a communications person attached to the Senate?
Senator Cohen: For the time being, that has been the suggestion.
Senator Lavoie-Roux: Who is that person?
Senator Cohen: No. The committee would have to get its own.
Senator Rompkey: I think that is a good idea. They just went through the same thing in Energy, and the point was made that even on the work they had already done, they needed to follow up. With regard to one energy bill, there was a suggestion made that Senator Carney travel across the country and get some publicity on what the committee had done.
The employment insurance bill particularly, I am sure, will be important, and people will want to hear about it. I think we would be well advised to have our own communications plan and our own communications person.
Senator Bosa: Madam Chair, I have a question for Senator Lavoie-Roux since she is on the Internal Economy Committee. I know when I was on the Internal Economy Committee, we had discussed replacing Mr. Lovelace, who was the communications director. We were trying to come to grips with that subject because some of the good work that the Senate does is not known outside. I am just wondering whether this subject has been brought up in the Internal Economy Committee.
Senator Lavoie-Roux: I am not on the Internal Economy Committee anymore. They do not want me there and I do not want to go, so that is fine.
Senator Cohen: There has been no discussion about getting one key person. What has been suggested is that each committee, in submitting a budget, should include a communications package. Then they sent us an example. I would suggest perhaps you should speak with Senator Kenny and get some direction there, because the policy is still a little vague.
Senator Lavoie-Roux: I would like to find out how much it costs. If every committee has $20,000 for communications, and we have at least 12 committees, it might be more expensive than developing a Senate communications department.
Senator Cohen: The thinking there was that not all committees would get the same attention from the Canadian public. Banking and Energy certainly would get attention, as will this employment insurance bill. We will check it out.
Senator Rompkey: In the Energy Committee this morning, Senator Kenny was very keen on having a communications strategy for that committee, and I think he would see the value of this committee doing the same.
Senator Bosa: Madam Chair, perhaps we could try to find out what arrangements the Energy Committee is making for communicating their work, and then take it from there.
Senator Cohen: We have a meeting of the Internal Economy Committee on Thursday morning. I can see what is on the agenda and say that there is some confusion and ask that some concrete steps be put in place and that senators be notified. I will bring the message.
The Chairman: Is there anything else you want to cover in the committee this morning?
Senator Bosa: I do not think so. I move adjournment.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Thank you. The meeting is adjourned.
The committee adjourned.
Ottawa, Tuesday, April 23, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-3, to amend the Canada Labour Code (nuclear undertakings) and to make a related amendment to another Act, met this day, at 9:15 a.m., to give consideration to the bill.
Senator Mabel M. DeWare (Chairman) in the Chair.
The Chairman: I welcome you all to the very first meeting of the committee of the season. Mr. Gagliano, we are pleased that you have been able to attend this morning, since I understand the Prime Minister had asked for a command performance at caucus this morning. We appreciate the fact that you are with us. With the minister is Warren Edmondson, Director General, Federal Mediation and Conciliation Service, and Robert Cook, legal counsel.
Mr. Minister, without any further ado, welcome to the committee, and we will be pleased to hear your presentation.
The Honourable Alphonso Gagliano, P.C., M.P., Minister of Labour: Honourable senators, the bill under consideration draws its inspiration first and foremost from the quest for efficiency and for the most sensible and rational solution.
This bill is essential for two reasons: it resolves the split jurisdiction problem at Ontario Hydro and it fills the legislative vacuum in Quebec and New Brunswick when it comes to the application of labour laws to nuclear facilities.
As Senator Bosa explained to you, the 1993 Supreme Court ruling on Ontario Hydro's nuclear facilities changed the labour relations landscape at Ontario's nuclear power stations.
Previously, it was assumed that workers at Ontario Hydro's nuclear power plants were subject to provincial labour legislation. For 50 years, before the Supreme Court ruling, the collective bargaining process in Ontario was conducted under provincial labour law, and the system worked well.
However, nuclear facilities are under federal jurisdiction by virtue of a declaratory provision in the Atomic Energy Control Act. The Supreme Court confirmed by this ruling that Part I of the Canada Labour Code governing industrial relations applies to Ontario Hydro employees working in the nuclear division.
The decision resulted in a division of jurisdictions at Ontario Hydro, that is to say that employees at nuclear power stations were subject to labour laws, whereas those working at non nuclear or conventional facilities were subject to provincial labour laws.
What this in fact means is that 40 per cent of the corporation's employees, or those working at nuclear power stations, are covered by federal legislation while the remaining 60 per cent are subject to provincial laws.
Consequently, Ontario Hydro must now adapt to two collective bargaining regimes and contend with two sets of occupational health and safety regulations which provide more or less the same level of protection to workers.
There is no question that the federal government is greatly concerned with the problems that could arise from the application of two different bargaining regimes and two different sets of occupational health and safety laws and regulations.
That is not all. The decision also created a legislative void with respect to labour relations at nuclear-generating plants in Quebec and New Brunswick.
While nuclear workers in Quebec and New Brunswick are not subject to provincial labour law, federal law cannot apply because provincial Crown corporations enjoy immunity from the federal legislation. While in practice provincial labour law continues to apply, such a vacuum cannot continue.
Clearly, this situation is not conducive to stable and efficient industrial relations. Our responsibility to Canadian workers and their employers is to provide for the efficient functioning of the workplace.
Flexible federalism and a team approach between the federal government and its provincial partners are essential elements to accomplishing this goal and achieving our overall objective of stable industrial relations which contribute to a strong and healthy economic climate.
As Senator Marjory LeBreton pointed out in the Senate, since 1994 federal officials have been working with their provincial counterparts to resolve the problem of the dual system of collective bargaining and the issues associated with occupational health and safety laws.
Let me reassure honourable senators that a spirit of cooperation has prevailed throughout this process. In fact, in 1994 Ontario asked the federal government to explore ways of bringing new nuclear power workers within the purview of provincial labour laws.
After numerous meetings and discussions, both levels of government agreed that the most effective solution would be to reinstate the legislative framework that applied to labour relations prior to the 1993 Supreme Court ruling.
Bill C-3, which will amend Parts I, II and III of the Canada Labour Code and the Non-smokers' Health Act, is the cumulative result of several years of work to find a constitutionally viable means of applying provincial labour law to Ontario Hydro's nuclear power plants. It also eliminates the legislative vacuum regarding the application of labour law to provincial Crown corporations in New Brunswick and Quebec.
As my honourable colleagues may recall, Part I of the code deals with industrial relations, Part II deals with occupational safety and health, and Part III covers labour standards.
In addition, my officials have been working diligently with their provincial counterparts in Quebec, New Brunswick, and Saskatchewan. These discussions produced the overall agreement that a mechanism to incorporate provincial labour law was the most viable approach and the best guarantee of stable industrial relations.
It should be noted that this mechanism can only be triggered when the provinces agree to allow their labour laws to apply to nuclear undertakings.
Officials from the four provinces have been consulted about the bill and they are expected to ask that, in the case of these undertakings, regulations be made incorporating by reference provincial laws.
Finally, I would like to speak briefly to honourable senators about the role of the Atomic Energy Control Board.
AECB has a mandate to ensure radiological protection in Canada's nuclear power plants. Passage of this bill will in no way affect this responsibility.
Only conventional health and safety laws are affected by the proposed legislation. For years, provincial occupational health and safety laws respecting conventional and non nuclear facilities have been applied in conjunction with the provisions of the Atomic Energy Control Act.
This system worked well and will continue to do so. This bill merely reinstates the situation that existed before the 1993 Supreme Court decision was rendered. Therefore, honourable senators, passage of this bill will allow us to return to business as usual.
I thank you for your attention and your kindness, and I and my officials are ready to answer any questions.
The Chairman: Thank you, Mr. Minister.
Senator Bosa: We are not relinquishing our authority forever. For administration purposes, we are simply saying to the provinces, "You look after this group since you are already looking after the other group." The professional engineers in these nuclear plants fall under federal jurisdiction, whereas the other workers fall under provincial jurisdiction. We are withdrawing from the administration of these professionals, but we are not relinquishing forever our jurisdiction over these people, are we?
Mr. Gagliano: We are not getting out of the nuclear energy jurisdiction, which is a federal jurisdiction. We therefore maintain our responsibility as a federal government in the nuclear energy jurisdiction. It is clear, and has been restated many times, that it is a federal jurisdiction.
We are transferring through regulation our jurisdiction under the Canada Labour Code. As you said, we have some employees under the federal code and some under the provincial code. As a matter of fact, before the Supreme Court judgment, that situation did not exist. All the workers were covered under the provincial code. We are transferring our labour law application.
Instead of applying the Canada Labour Code, we will apply the provincial labour code. We are transferring to the provinces all the labour powers with respect to legislation and administration, which the Supreme Court deemed to be federal powers.
Senator Bosa: Some labour representatives, who I believe will be appearing as witnesses before our committee, have expressed some concerns with regard to the proposed subsection 121.2(5), which reads as follows:
A regulation made under subsection (2) incorporating an Act or instrument shall, after consultation by the Minister with the appropriate provincial minister, be administered and enforced by the person or authority that is responsible for the administration and enforcement of the Act or instrument.
Has it come to your attention that there are some difficulties in this regard?
Mr. Gagliano: I do not know what kind of difficulty you are referring to. We have received no such notice. The bill simply creates the framework for each province to negotiate with the federal government the mechanism for the transfer of authority. That is what that proposed subsection refers to.
Senator Bosa: I have no difficulty with it myself. However, it has been brought to my attention that there are observations to be made in connection with this. I am not aware of what wording the witnesses would prefer and I wonder whether your officials know.
Madam Chair, are you aware of who has expressed concern about this particular item?
The Chairman: I believe it is a labour group from Saskatchewan. They did not appear before the House of Commons. They will not be appearing before this committee either. They have suggested that they will present a brief to us, but they will not appear.
Mr. Gagliano: Some concern was shown by Quebec. They would have preferred that the transfer be stated directly in the bill rather than be done by regulation. Because this affects more than one province and each province is in a different situation - for example, the problems of Ontario are not the same as those of Quebec or New Brunswick - we decided to establish the framework in the bill and then examine each case on its merit.
In my speech on second reading in the House of Commons, I assured the provinces that we will not initiate the regulations unless the province is willing to take over the jurisdiction. In other words, the government will not act unilaterally, but rather only with the consent of the province.
Senator Bosa: That explains why "consultation" is included here.
Mr. Gagliano: Yes.
The Chairman: Is that your reason for going with regulation rather than legislation?
Mr. Gagliano: Yes, because each province is different. The legislation provides the mechanism to start negotiations and the regulations will apply to individual cases.
Senator Cohen: I wish to thank the minister for appearing here. I am certainly no student of labour law and I found it laborious reading through this bill.
Although on the whole I think it is a good bill, I have one concern which I would like you to address. Provincial labour laws can be as generous as, or less generous than, the Canada Labour Code, in terms of giving protection to employees, employers and bargaining agents. However, there is no guarantee that provincial objectives in the area of labour standards, occupational health and safety, industrial relations, et cetera, will match the federal proposals. I should like to hear your comments on that.
Also, nuclear employees in New Brunswick find themselves subject to less generous contributions in the collective bargaining process. Has the New Brunswick government addressed that or have you been in consultation with it regarding that?
Mr. Gagliano: On Thursday I will be concluding the ministerial consultation process on amending Part I of the Canada Labour Code. In the course of this process, I had the opportunity to travel across the country and meet each provincial labour minister. I believe that the provincial labour laws and the federal labour code are going in the same direction. Some of the provinces are even ahead of us, perhaps because they had the opportunity to amend their code before we did. There is not much difference between the federal labour code and the provincial codes, especially those of Ontario and Quebec. In certain instances, Quebec goes further than the Canada Labour Code. I hope I can achieve some improvements this fall and introduce some amendments in the House of Commons. It would be my pleasure to present such amendments to this committee. However, I believe that generally, labour standards in Canada, provincial and federal, are at the same level.
My officials may have more to say on that.
Mr. Warren Edmondson, Director General, Federal Mediation and Conciliation Service, Department of Human Resources Development: I cannot add much to what the minister has said except to say that through this bill we are restoring something which existed and applied for many years. The Supreme Court decision probably came as a surprise to all parties involved: labour, management and governments. We are basically restoring what existed prior to the Supreme Court decision.
Notwithstanding that, however, the consultations we have had with the province of New Brunswick have indicated to us that the province is quite content with using this mechanism and is anxious to get on with discussions to incorporate their provincial laws by reference. If in some cases the provincial laws are substandard - if I may use that term - in certain areas, then obviously it is up to the various constituents to lobby the province to try to amend those laws accordingly at the appropriate time.
The minister explained earlier that there have been, and will continue to be, extensive consultations with all the provinces involved when they wish to use this mechanism. Hopefully, these consultations will result in regulations with which everyone can live. I assume that the provinces which are seeking to use this mechanism to apply provincial labour laws to the nuclear workers will be consulting in turn with their respective constituents. Again, if the provinces do not want it, I suppose that Part I of the Canada Labour Code will continue to apply.
Senator Gigantès: Thank you for coming, minister, and thank you for being clear. This is a protest I raise every time I see a piece of legislation: Why must it be written in such a way that I have to read every paragraph three times before I understand it? I am a professional in the writing of English. I find this appalling. Does it have to be like this? I have seen clear legislation on occasion. Must it be written in such impenetrable jargon? Could you do something about that, minister? Tell them to write proper English.
Mr. Gagliano: In every consultation I have had with both management and labour, I have been asked that the new Canada Labour Code be made as simple and as clear as possible so that every worker and every employer will be able to understand it and interpret it without the help of a lawyer. I made a commitment in that regard.
I understand and share your frustration, senator. I am not a lawyer; I am an accountant. Unfortunately, it seems that every time we try to legislate something simple, it becomes complicated because of the language, the interpretation and the jurisprudence. Perhaps my official who is here, and who is a member of the legal profession, can enlighten us in this regard.
Mr. Robert Cook, Legal Counsel, Department of Human Resources Development: This bill was drafted by lawyers from the drafting section of the Department of Justice, who are experts in drafting legislation. There were policy instructions from the department given to them, and this bill is the end result. I know that they followed legislative precedents.
Senator Cools: Madam Chairman, I am not clear. What is the difficulty?
Senator Gigantès: The quality of the English.
Senator Cools: About what clause are you speaking?
Senator Gigantès: I refer to clauses 1, 2 and 5.
The Chairman: In my estimation, Senator Gigantès is making a general comment not only about this bill but all legislation.
Senator Gigantès: That is right.
Senator Rompkey: In general terms, Senator Gigantès is right. It must be possible to write clear, concise English that is also legally sound and defensible. The main problem with the English here is that the bill has far too many clauses and phrases separated by commas. By the time you get to the end of the sentence, you have forgotten how the sentence started.
There may be a defence of this by the legal people who want to make it stand up in court, which is how lawyers preserve themselves. We will not start telling any lawyer jokes because this is not the place to do it. However, they have their own profession and their own self-protective mechanisms. They have protected themselves very well here at the expense of the English professionals.
The Chairman: They also want to write a bill that cannot be challenged in court.
Senator Cools: There are certainly clauses that we can ask the minister to fix. He is the minister. As such, he has the ability to fix any problems.
Senator Rompkey: Senator Gigantès is making a general comment.
Senator Bosa: Madam Chairman, I should like to draw the attention of the minister and his officials to a paper that was circulated, I believe, by the minister. It is entitled, "Questions and Answers on Bill C-3." On page 2 there is a question as follows:
The Bill provides that the regulations may be made incorporating provincial labour law after consultation with the province in question. Would it not be more appropriate to have the Bill provide for the provinces agreement rather than consultation?
The answer by the minister states:
An amendment to that effect has been submitted to me by my honourable colleague from the Bloc Québécois. I see the merit of this request and concur that its important to amend the Bill to reflect this concern.
Does this not tie in with what I raised earlier concerning proposed subsection 121.2(5) and the use of the word "consultation" as opposed to the word "agreement"?
Mr. Gagliano: The Bloc Québécois member to whom you are referrring put forward some amendments which he later decided not to proceed with in committee or the House at report stage. We were ready to entertain that amendment in the House because I had committed myself earlier not to start any unilateral action.
The only way that the federal authority in the labour code will be transferred to the provincial authority is if the province wants it. Each province must say that it wants to take on the responsibility.
The consultation will begin there and then we will negotiate how the transfer will be done. We must remember that there are in place, for example, collective agreements which must be honoured. All rights must be transferred as they now exist. Those negotiations and consultations have yet to take place.
The amendment in question will simply ensure that the federal government and the Minister of Labour will not take unilateral action. I made the commitment in the House of Commons on second reading that no consultation or negotiation would begin until the province wants to take over that jurisdiction.
Senator Bosa: Proposed subsection 121.2(5) just lays the stage then for consultations leading to agreements with various provinces? There is no problem then? We do not need agreements before the consultations are held.
Mr. Gagliano: No. I met last week in Toronto with the Ontario Minister of Labour. I informed the minister that this bill had passed the house and was before the Senate committee. I told her there is a certain amount of consultation to be done - especially in Ontario where 48 per cent of the workers are affected - before the jurisdiction is transferred, and I do not mind if the officials begin their work.
As we are speaking, officials are working to prepare a series of meetings so that negotiations can begin immediately with those provinces that are interested.
The information I have is that all the provinces involved - Ontario, Quebec, New Brunswick, and perhaps Saskatchewan because of a mining situation - have begun discussions. Hopefully we can resolve this double-jurisdiction problem as soon as possible.
Senator Lavoie-Roux: Following on the remarks of Senator Gigantès, in my opinion, the writing in the laws made in Ottawa causes confusion. It is very difficult for citizens who have no legal training to understand. That whole issue needs to be examined but that is not the role of this committee. The way that references are made to other laws is quite confusing for the ordinary citizen. Everyone would gain if the government would apply itself to reviewing the language used in the laws written in Ottawa.
As for the particular bill before this committee, I am sorry, but I had never heard of it before I came in this morning so I have no intelligent question to ask of you at the moment.
The Chairman: If there is nothing else, we would thank the minister and his officials for their attendance. We will hold another meeting next week on this bill.
Mr. Gagliano: Thank you, Madam Chair. On the drafting of the bill, I can only say that we will prepare amendments to the Canada Labour Code this summer and I am hopeful that they will be written in language which I myself can understand.
Senator Cools: Minister, may I share our earlier discussion?
Mr. Gagliano: Yes.
Senator Cools: As honourable senators will recall, the previous minister, Minister Gagliano's predecessor, had made certain undertakings to us when we studied the bill on employment equity some months ago. Minister Gagliano has dutifully and admirably taken up that call; he wants to make the corrections as committed by the previous minister. He has been in touch with me on that issue and I believe he will be contacting others. I would advise this committee, especially Senator Lavoie-Roux, that those concerns should again be advanced to the minister because he is prepared to meet those obligations.
I thank him for that.
The Chairman: I would like to tell the committee that Senator Rompkey has agreed to sit on the steering committee looking after our agenda and procedures.
I am pleased to welcome you to the steering committee.
Senator Lavoie-Roux: I move that we support this.
Congratulations, Senator Rompkey.
Senator Rompkey: Thank you.
The Chairman: The steering committee will stay for a few moments to decide on our activities. One week from today, at 9:30 in this room, we will hear further evidence on this bill.
The committee adjourned.
Ottawa, Tuesday, April 30, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-3, to amend the Canada Labour Code (nuclear undertakings) and to make a related amendment to another act, met this day at 9:30 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chairman) in the Chair.
The Chairman: Honourable senators, we are here to give consideration of Bill C-3, to amend the Canada Labour Code (nuclear undertakings) and to make a related amendment to another act.
We have with us this morning representatives from the Syndicat canadien de la fonction publique (sections d'Hydro-Québec) and representatives from the Syndicat professionnel des ingénieurs d'Hydro Québec. Please introduce yourselves.
Mr. Robert Boisvert, President, Local 1500, Canadian Union of Public Employees (Hydro-Québec Sections): Thank you, Madam Chair. My name is Robert Boisvert and I am the President of Local 1500 of the Canadian Union of Public Employees, Mauricie region.
I am primarily responsible in Quebec for workers employed at the Gentilly nuclear power station, the only one of its kind in Quebec.
I will let my two colleagues introduce themselves before I go any further.
Mr. Jacques Boucher, President, Local 2000, Canadian Union of Public Employees: My name is Jacques Boucher and I represent the Syndicat des employés de bureau et de techniques professionnelles d'Hydro-Québec, Mauricie region.
Mr. Louis Champagne, President, Syndicat professionnel des ingénieurs d'Hydro-Québec: Madam Chair, I am Louis Champagne, President of the Syndicat professionnel des ingénieurs d'Hydro-Québec.
Senator Lavoie-Roux: You are all important people.
Mr. Boisvert: Not really, Madam Chair. The first part of the presentation will be made by representatives of the Canadian Union of Public Employees. My colleague will present the second part on behalf of the Syndicat professionnel des ingénieurs Hydro-Québec.
Let me briefly introduce CUPE. CUPE is made up of the unions which represent the interests of power workers in Quebec. We have approximately 18,000 members in Quebec, including 450 who work at the Gentilly nuclear power station.
Why are we here this morning? We are here in response to the third reading of the bill.
We wish to make some representations regarding Bill C-3. I had prepared a brief, but I think it would take too much time to read it.
I will proceed immediately to the recommendations listed on page 4 of the brief. Unfortunately, we did not have enough time to prepare an English version of the brief as we did last time.
Senator Lavoie-Roux: Excuse me, Madam Chair, but I am somewhat mixed up with my papers. To which brief are you referring? I should have sorted this out with you on the train this morning!
Mr. Boisvert: We arrived by automobile last night. I am referring to the document with the symbol at the top of the page.
Senator Lavoie-Roux: The brief by the Canadian Union of Public Employees? I see, thank you.
Mr. Boucher: Yes, that is the one. Briefly, before moving on to the definitions on page 4, the proceeding paragraphs serve as a preamble to our arguments. We refer to the Quebec and Canada labour codes and to labour standards legislation. It is all rather technical and heavy going, but nevertheless I think it is essential to your understanding of the issue.
In our recommendations, we go over the preamble somewhat and clarify it with recommendations. Without further ado, Madam Chair, it would, in our opinion, be preferable if the amendments to the Canada Labour Code were to reflect the thrust of the code as a whole, by using the same concepts as the code does. The new section 121.1 would then read "The Governor in Council may by regulation direct that this Part applies to any corporation that is an agent of Her Majesty in right of a province and that operates or is associated with the operation of a work or undertaking designated by the Governor in Council and whose activities are regulated, in whole or in part, pursuant to the Atomic Energy Control Act, in respect of any activities related to the operation of such work or enterprise and in respect of their employees and their employees' unions." The proposed section 121.2 could read as follows: "The Governor in Council may by regulation exclude, in whole or in part, from the application of any of the provisions of this part, an employer operating a work or undertaking designated by the Governor in Council whose activities are regulated, in whole or in part, pursuant to the Atomic Energy Control Act."
On the recommendation of the Minister, the Governor in Council may make regulations respecting any matter relating to industrial relations, including the prevention of a work stoppage or the continuance or resumption of operations in relation to an employer subject to a regulation pursuant to subsection (1).
A regulation made under subsection (2) incorporating by reference, in whole or in part, an Act of the legislature of a province or an instrument made under such an Act may incorporate the Act or instrument as amended to a certain date or from time to time.
A regulation made under subsection (2) applied generally to the employer subject to the regulation and to the employer's employees and their union.
The subsequent clauses would not have to be amended, apart from the ones amending sections 158 et seq., which would have to be made consistent with the foregoing.
We are making these suggestions, obviously, to avoid a situation in which two different labour relations regimes would apply to the same enterprise, one to certain jobs or classes of job and one to other jobs or classes of job. This would create inextricable confusion, where it would be the nature of the job that would determine which collective agreement applied, or even whether an essential services maintenance regime applied.
At the Gentilly nuclear power plant, there is already a system that allows the employees to change jobs within the same bargaining unit and even to shift from one unit to another. It is easy to imagine the personnel-management complications this would create under the provisions in Bill C-3. And yet, it was precisely to avoid such anarchic situations that Bill C-3 was introduced.
Be that as it may, if our suggestion cannot be adopted, it would be of the greatest importance that at the very least a mechanism be established whereby the government can consult the interested parties before making the regulations referred to in section 121.2.
Since it would be by regulation rather than by legislative amendment that provincial labour relations laws could be made applicable to nuclear power plants, it is clear that major changes could be made in a labour relations regime without the public debate that passage of legislation would entail.
To avoid the creation of what could be a dangerous situation due to the government's ignorance (at the time it was making the regulation) of situations or facts with a bearing on them, we suggest that if our proposed amendment cannot be adopted, the wording of the proposed section 121.2 be amended to included the following subsection between the current subsections (4) and (5):
A regulation may be made under subsection (2) only after consultation by the Governor in council, or any person designated by him, of the employer and, where employees are represented by a union, of that union.
Respectfully submitted, the 30th day of April, 1996.
That concludes our brief, Madam Chair. With your permission, I will focus in on two major themes, following which we will take questions from the committee members.
A legal vacuum currently exists in Quebec, that is to say that employees in this field fall neither under federal nor under provincial jurisdiction.
We ask that within the framework of Bill C-3, Parliament recognize the legislation governing labour relations at nuclear power plants. Given the fact that since 1969, Quebec is representing somewhat "illegally" the interests of the plant employees, we are asking you to make regulations transferring to Quebec powers governing the legislation and representation of the plant's employees. That is our first point.
Senator Lavoie-Roux: Under which jurisdiction do they currently fall?
Senator Gigantès: Could you repeat that more slowly.
The Chairman: Senator Gigantès, I would like to remind you that the witnesses wanted to complete their brief and then we would ask questions.
Senator Gigantès: Madam Chair, the witness is going too fast even for a francophone like me. I could not catch what he said, so I asked him to slow down.
The Chairman: I am sorry. Your remark did not come across in translation.
Mr. Boisvert: Madam Chair, I apologize if I am speaking too quickly. Our time is very short and our two groups have been given only one half-hour to make their presentation.
Senator Gigantès: I am probably getting a little too old.
Mr. Boisvert: No, that has nothing to do with it. In reality, our employees come under federal jurisdiction, but a legal vacuum exists in so far as the labour relations regime is concerned.
We come under Bill C-16 respecting the Atomic Energy Control Act. There is no question about that. In terms of operating permits, licences, training agreement documents or the certification of operators and shift supervisors, we come under federal jurisdiction. All technical, security and safety aspects at a nuclear power plant in Quebec are covered by Chapter 16 of the federal legislation.
However, labour relations, that is the negotiated provisions of collective agreements, reflect discrepancies between the federal and provincial Codes.
Quebec has legislation prohibiting strike-breaking. There is no such legislation in Ontario or elsewhere in Canada. These are some of the specific features of a particular Code.
In so far as labour relations are concerned, a legal void exists as a result of the 1993 Supreme Court ruling.
We call upon the government to include in the legislation regulations which will transfer to Quebec jurisdiction over labour relations, that is the right to organize labour relations in Quebec.
This situation has prevailed in Quebec since 1969. The province had been responsible for managing labour relations and suddenly, we found out that this was not right. The government is being asked to put things right and we agree with that.
We ask that for purely practical reasons, the certification system remain in place. It took all of 20 years for unions and companies to work together to develop mutual trust and the ability to communicate. It would really be inappropriate today to call all of this into question, request new certification and redo all of the work that has been done over the past 20 years.
This has been an extremely difficult and laborious process. We ask you to confirm these things.
Senator Gigantès: Thank you.
Mr. Boisvert: It was my pleasure.
Mr. Champagne: I would like to make several other comments. The Syndicat professionel des ingénieurs represents the 1,550 Hydro-Québec engineers working in all areas of the operation. We also represent first level management engineers.
We were, of course, the bargaining agent for the engineers employed at the Gentilly II nuclear power station until the Supreme Court handed down its ruling in 1993. Our union represents managers.
When the union came into existence in 1963, it sought voluntary recognition, after a very lengthy labour dispute, in order to have its right to represent managers recognized.
In 1968, the National Assembly removed the possibility of voluntary recognition. Provision is made for this in all of the labour codes in North America and in Canada, but not in the Quebec Code.
The only accepted process in Quebec is certification. This is what sets the Canada Labour Code apart from every other labour code in North America.
Since we had received voluntary recognition, we ceased to exist in 1968. In 1970, the Government of Quebec passed legislation to allow us to continue representing managers. In our brief, you will find section 21 (6) of the Quebec Labour Code which notes that associations certified by the Commission hydro-électrique du Québec or by the City of Montreal on August 2, 1969, to represent groups of persons, in whole or in part, managers, superintendents, foremen or employer representatives in their relations with employees and who, on this date or during the year preceding this date, were parties to a collective agreement, are considered to be certified associations as of July 17, 1970, much as if the certification had been granted by a labour commissioner.
We are among the unions that benefit from statutory certification, and this has allowed us to represent managers, section heads and shift supervisors at the Gentilly II nuclear power station when we would otherwise not have been able to represent them.
When the Supreme Court handed down its ruling in 1993, it transferred labour relations in nuclear power plants to federal jurisdiction. If a legal void does exist in Quebec insofar as labour relations are concerned, it is because the nuclear stations in Quebec and New Brunswick are operated by agents of the Crown in right of the province of Quebec.
Since agents are not designated in the federal Labour Code as being subject to the Labour Code, this has resulted in a legal void in the area of labour relations.
We come under federal jurisdiction, but because of Hydro-Québec's status, we find ourselves in a legal void. Bill C-3 rectifies the situation in that it allows agents of the Crown to be represented by unions. We have some reservations about this provision.
Obviously, we agree with this part owing to the aforementioned legal void in both Quebec and New Brunswick. This state of affairs runs counter to the spirit of the Supreme Court ruling which called for labour relations to come under federal jurisdiction in the hope that they would be managed in a manner more in keeping with international treaties. The Supreme Court wanted to place them under federal jurisdiction because of security concerns and possible errors. All of the rulings that we have obtained from the Canada Labour Relations Board and the Canadian Court of Appeal confirm that labour relations are a matter of federal jurisdiction and that they have never come under provincial jurisdiction. Bill C-3 endeavours to rectify this situation.
We have the same reservations as our colleagues from CUPE. Since the legislation makes provision solely for regulations to be made without consultation with the involved parties, we are concerned that section 21 (6) might be overlooked and that we will find ourselves in a situation where we cannot represent all of our members.
We are asking Parliament to incorporate into the legislation provincial laws. Before making regulations, if this is the approach chosen, we ask that the federal Labour Minister consult with the parties, the employer and the unions or that he ensures that the provincial labour ministers to whom he will be transferring these powers have in fact engaged in consultations and made representations. This sums up our reservations regarding Bill C-3.
Senator Losier-Cool: My question is not necessarily for the witnesses, but rather for the officials responsible for committees.
As a matter of principle, do we not have in the committee regulations a stipulation that documents must be tabled in both official languages in order to be accepted?
The Chairman: We have not discussed that this year, but you are right. The witnesses brought their brief with them this morning. There were only three of us here when we started our meeting at 9:30 and I was unable to ask whether we could continue without having the brief in both official languages.
Senator Losier-Cool: I simply wanted to inform these gentlemen that they should send us their brief in the other official language so that we may consider it.
Senator Lavoie-Roux: On this subject, Madam Chair, I would remind my honourable colleague from New Brunswick that this would not be the first time this has happened. Often, it is the other way around.
Senator Losier-Cool: That is why I said I wished to remain faithful to my principles.
Senator Gigantès: I see the reverse happening and I refuse to accept English documents that have not been translated.
Senator Lavoie-Roux: Parliamentary committees examined the question of euthanasia for months and months, and the Senate took it upon itself to have the documents translated. Is the Senate not supposed to be responsible for translating the documents? Perhaps they did not have the time this morning to translate them.
Senator Gigantès: No, but we do not have them.
Senator Lavoie-Roux: The witness may continue.
The Chairman: We have other documents as well this morning which will be in English only.
Senator Lavoie-Roux: That is terrible.
Senator Cools: For us minorities, life is tough.
The Chairman: From now on we will encourage witnesses to submit their briefs in both languages.
Senator Rompkey: Does this legislation do all that you want to do as it is presently worded? It seems to me that you want a transfer of federal power to the province. You also want to be able to either incorporate the federal law into provincial law or to do that by regulation.
As I understand it, this legislation transfers federal law to provincial jurisdiction. Second, I believe that there is a provision that the minister would consult - I believe is the word used - the provincial jurisdictions before making regulations.
That was my understanding last time. Does this legislation, as presently worded, do all that you want it to do? Is it satisfactory? Are you supporting the bill as it presently stands?
Mr. Boisvert: The answer is no because in the current version of Bill C-3, there is no mention made of consulting with another partner, the individuals representing the workers.
The legislation stipulates that the provincial Minister of Labour may consult the Governor General or his representative. Our concern is that there may be many regulations from time to time, and that the workers at the nuclear power plants may be unaware of them. That is our concern at this time. Bill C-3 as it is currently drafted does not cover this point.
Theoretically, Bill C-3 does us a favour by transferring to Quebec this authority at the request of the provincial or federal minister.
It is hard to imagine transferring employees of power stations to another jurisdiction, whether in whole or in part.
Allow me to explain this more clearly. For example, of the 450 unionized employees at the Gentilly II nuclear power plant, 200 could be governed by the federal code and the remaining 250 by the provincial code. This regime would be truly difficult to administer, for the company as well as for the unions, given the movement of personnel and the duties of individuals. Allow me to clarify something for you.
I have been the President of the union for only one year. Twenty years ago, I worked as an operator in the command room of the Gentilly II nuclear power station. I have a very good idea of how a plant operates, particularly plants in Quebec.
It is important for us to have a consultation mechanism to safeguard the democratic principle of consultation. I trust that I have answered your question.
The Chairman: There is also a recommendation in their brief to deal with that section. We asked the minister about the consultation and regulation parts and why that was not being done under legislation. You may recall that the minister's answer to us at that time was that, because they were dealing with different jurisdictions, they felt that we could not legislate for each jurisdiction, that it would be easier and more efficient to do it by regulation, meaning that they would have to consult with the provinces.
Senator Cohen: I am trying to understand what you are saying about having problems working under the two different systems; federally and provincially.
Would you have any problem with Hydro-Québec workers being covered by the federal Human Rights Act while others are governed by the Quebec Human Rights Act? It is kind of a parallel situation.
Mr. Boisvert: It could be similar, but it goes much deeper than that. The differences are greater. As I mentioned earlier, during the preamble, consider the example of a labour dispute where the right to strike per se is called into question. This is a right currently enjoyed by unionized employees.
In Quebec, lockouts or illegal strikes are prohibited. The provisions of the Labour Code must be respected along with the proper delays, whereas in Ontario, legal strikes can occur just about anywhere.
However, because of the essential services legislation in Quebec (legislation which is non-existent in Ontario), lockouts cannot occur.
The Essential Services Act is unique to Quebec. There is also legislation in the province which prohibits the hiring of strike-breakers to replace unionized workers during labour disputes.
Many other aspects are different. It would be difficult to administer two radically different labour relations regimes at the same plant. There are also differences with respect to health and retirement as a precautionary measure of pregnant women working at a nuclear station. The regulations are more liberal at the federal level, and less so at the provincial level.
Lastly, it is preferable to have only one regulatory regime rather than two which oppose one another on a daily basis. This would really be difficult to endure. That is pretty much where we stand at this point in time.
Senator Lavoie-Roux: First of all, did you go before the House of Commons to debate these points?
Mr. Boisvert: Yes, on March 21, 1996.
Senator Lavoie-Roux: Was the House committee sympathetic to your demands? I realize that members cannot make commitments on the minister's behalf. However, did they appear to understand the crux of your problem?.
Mr. Boisvert: On March 21 last, we tabled a brief in both French and English because we had been asked to do so. Our brief was slightly different than the one you have here. We focussed primarily in our preamble on the history of unions at the Gentilly II nuclear power plant.
In our preamble, we mention the fact that we represent three unions: the Syndicat des techniciens, the Syndicat des employés de bureau and the Syndicat des métiers.
Technicians are responsible for doing the maintenance on the plant's technical plant. They are involved in planning and design operations. Mechanics and electricians also carry out the same type of work. The office workers that my colleague Jacques Boucher represents perform clerical tasks.
I also represent the plant operators who are extensively trained. My colleague Mr. Champagne represents the shift supervisors.
This specialty requires eight to ten years of full-time training. It is accredited by the Atomic Energy Control Board of Canada which we have always recognized. There is no question this morning of no longer recognizing the regulatory framework in place. Absolutely not. The unique context in which the nuclear industry operates in Quebec and elsewhere in Canada is such that we must not threaten in any way the stability that we have achieved over the years.
Today, it is truly an enjoyable experience to work at the Gentilly II plant. We negotiate in a reasonable manner, encourage partnership and promote a win-win formula. Things have not always been rosy in the past, but we have achieved some stability in the past three years or so.
The collective agreements were negotiated quite recently, that is last summer and fall. The labour relations climate is genuinely peaceful. The young workers at the plant would not at all be pleased to see their workplace environment turned upside down because of legislation or regulations that could wipe out all of the progress achieved over the years.
Senator Lavoie-Roux: I can assure you that I am not at all familiar with this debate. I that you have no problem with all of the technical aspects of a nuclear plant coming under federal jurisdiction. Is that correct?
Mr. Boisvert: Yes.
Senator Lavoie-Roux: You are not calling this decision into question then?
Mr. Boisvert: Absolutely not.
Senator Lavoie-Roux: What you are calling into question - correct me if I am wrong, because I do not wish to put words in your mouth - is the sudden decision to bring labour relations under the control or jurisdiction of the federal government. Is that not the problem?
Mr. Champagne: What we are concerned about is the possible interplay between the federal parliament or the federal Minister of Labour and the provincial ministers, and not necessarily the effect on the population as a whole because the federal Minister of Labour enjoys complete discretion. He is not required to consult with anyone other than the provincial minister. What concerns us is that we are working in a labour relations regime determined by others, without our having been consulted - granted that this is not stipulated in the legislation - or informed about the discussions.
Senator Lavoie-Roux: That surprises me a little. When you talk about labour relations, I take it that you are referring to working conditions in general, salaries, leave provisions, and retirement for precautionary reasons in the case of pregnant women. Normally, these areas should come under provincial jurisdiction. Am I correct that you are concerned that with the legislation, both levels of government could intervene?
Mr. Boisvert: There could be some confusion if a joint regulatory regime is in place.
Senator Lavoie-Roux: You state that Hydro-Québec and the Quebec government as well could object to the bill on principle. We have to contend with this reality. You say that the Government of Quebec could express its dissatisfaction with the legislation, but it has not yet made any representations to this effect. You are saying that if we are to proceed in this manner, then at the very least there should be an obligation to consult with you. Is that correct?
Mr. Boisvert: At the very least.
Senator Gigantès: If I understand correctly, the summary on page 1a states that this enactment will allow for the application of provincial labour laws. Authority is being delegated from the federal to the provincial level. Is that right?
Senator Lavoie-Roux: I understand. However, do labour relations and working conditions...
Senator Gigantès: They were formerly under federal jurisdiction and now, the federal government wants to transfer responsibility to the provinces.
Senator Lavoie-Roux: That is not right. We should ask one of the witnesses.
Mr. Champagne: The legislation allows for the application of provincial labour laws by incorporation.
Senator Lavoie-Roux: I see. Then we are not talking about powers being delegated.
Mr. Champagne: For example, the legislation aims to incorporate parts of the Quebec Labour Code; this code applies in the province of Quebec because that is the way the law is written. However, we are not certain which sections of the legislation will be targeted, the Labour Code or other pieces of Quebec legislation. We can well imagine that other labour laws in Quebec will be affected: the Fête nationale Act, the Occupational Health and Safety Act, etc. They are not covered in the Labour Code. The federal government could chose to either incorporate them or not to incorporate them.
Senator Lavoie-Roux: As it did in the case of the strike- breakers?
Mr. Champagne: That situation is covered in the Labour Code. As far as the labour relations regime is concerned, we are critical of the fact that we were not consulted in advance as to which law or which portions of the law the ministers will decide to incorporate into the regulations. This bothers us.
Senator Gigantès: You object to the fact that the federal and provincial governments take action without consulting you?
Mr. Champagne: That is correct.
Senator Gigantès: You object to that.
The Chairman: Thank you very much. We will take into consideration your recommendations for amendments.
Our next witnesses this morning are from the Power Workers' Union, CUPE, Local 1000, CLC and from the Society of Ontario Hydro Professional and Administrative Employees.
Senators, you were presented with a brief from both of these groups. I apologize to the committee for the fact that the briefs are in English only. We will have to make a decision after today about whether to go ahead with presentations which are in one language only.
Senator Gigantès: I object to the circulation of documents in one official language only, Madam Chairman.
The Chairman: I realize that.
Senator Gigantès: They can talk to us and we can hear them, but I do not think the document should be circulated in only one of the official languages.
Senator Lavoie-Roux: I apologize to my colleague Senator Gigantès. This principle was raised with the other group that appeared before us. It will be useful if we at least have the English version.
The Chairman: The clerk tells me that she has the briefs translated and will present them to us now.
Without further ado, I would welcome representatives from the Power Workers Union and from the Society of Ontario Hydro Professional and Administrative Employees.
Mr. Christopher Dassios, Legal Counsel, Power Workers Union (CUPE, Local 1000, CLC): I am accompanied today by Ron Dugas, one of the chief stewards of the Power Workers Union.
I should like to thank the committee for the opportunity to address you about the matters at issue today. Our brief was sent to you last week, and I presume that senators have had an opportunity to read it. Perhaps my assumption is wrong, but you will have the opportunity to read it afterwards in any event. I will not read it to you verbatim, but I should like to make some comments.
The position of the Power Workers Union is clear: Bill C-3 is unnecessary, misguided and will be destructive of labour relations for the major party affected by the bill, Canada's largest nuclear utility, Ontario Hydro.
The Supreme Court of Canada has held in no uncertain terms that legal authority over labour relations at nuclear facilities belongs to Parliament and Parliament alone. The reason for this is a purely federal interest in a matter of national concern - the safe use and production of nuclear power. The Chief Justice is quoted on this issue at page 3 of our brief, in the case already referred to by the previous witnesses:
Therefore, I think that the domestic regulation of the production of nuclear energy demonstrates a strong federal interest in the employment of those employed on or in connection with facilities for the production of nuclear energy. Where those employees are unionized, the federal interest extends to the labour relations regime which governs the relationship between the employer and the employees, through the bargaining agent.
On the international level then, there is consistent recognition that supervising employment on or in connection with facilities for the production of nuclear energy is an integral part of assuring the safety of nuclear facilitates and materials;
That is, safety and labour relations cannot be divorced at a nuclear plant. That is the ruling of the court.
Given that the highest court in Canada has found that the authority to legislate over labour relations of nuclear facilities belongs to Parliament alone and is a part of Parliament's authority over the safe use of atomic energy, the question arises as to why the federal government would wish to abdicate its responsibilities in this field in favour of the provinces and why it is doing so at this particular time? Those questions trouble us.
We say that Bill C-3 is unnecessary. If the business of government is to regulate the affairs of the nation for the public benefit by providing practical solutions for real problems, in our view, the bill makes no sense. No one has pointed to any actual, practical problems caused by the current regime at Ontario Hydro. Indeed, the parties have been living under it for some time without difficulty.
Federal law applies in Ontario to a discrete unit of Ontario Hydro called Ontario Hydro Nuclear and provincial law applies to the rest of Ontario Hydro. However, the demarcation line between the federal and provincial spheres at Ontario Hydro is clear and easy to live with.
A problem exists with respect to provincial Crown agencies, agencies such as those operating in the nuclear field. Quebec Hydro is one example. Their labour relations are technically in a void. Although the authority over their labour relations is federal, the Canada Labour Code does not apply to provincial Crown agencies. However, that problem can be fixed quite easily by amending the Canada Labour Code to make it applicable to provincial Crown agencies. A one-line amendment would solve that problem. There is no need to abdicate federal authority in that area to fix that problem.
Besides being unnecessary, Bill C-3 would be destructive of labour relations at Ontario Hydro. The Supreme Court of Canada held that persons working in nuclear facilities are to be governed by the Canada Labour Code, that is, treated the same as all workers in the federal sphere of authority. They are not to be treated the same way as other utility workers, but they are to be treated as workers under federal authority. The question before the committee today is: Do we treat workers in nuclear plants like nuclear workers, or do we treat them like utility workers?
The Supreme Court of Canada says that they must be treated as nuclear workers because the paramount concern at a nuclear plant is safety. That must be regulated by the federal government because nuclear accidents do not respect borders. They are not matters of provincial concern; they are matters of federal concern.
The legal regime applicable to the federal workers at nuclear facilities has been marked by stability, a common sense approach to legislative review, consultation and measured amendments to the labour relations regime. I am talking about the federal government's approach. The Sims committee is one example.
Members of the Power Workers Union who work at nuclear plants have been quite satisfied with the labour regime. However, that can be contrasted with what has been going on at the provincial level in Ontario. First, the provincial government made wholesale amendments to the Labour Relations Act with no meaningful consultation of anyone. It stripped workers of rights that had been held, in some instances, for over 50 years.
Second, the government of the province of Ontario intends to overhaul the Employment Standards Act and Occupational Health and Safety Act, the legislation corresponding to the other parts of the Canada Labour Code. This will also no doubt eliminate entrenched protection for workers.
Third, the Government of Ontario exempted itself from the general pension laws of the province so it could effectively strip about half a billion dollars of pension funds from its own employees.
Fourth, the Government of Ontario exempted itself from successor rights provisions applicable to all other employers in the province, stripping its own employees of the right to follow their job when parts of the government are sold off, and stripping its own union of the right to have its bargaining rights apply to successor employers.
Fifth, the Government of Ontario, through the Ministry of Energy, recently attempted to fire five directors from the board of Ontario Hydro. The choice of the five was no accident. The five, including John Murphy, president of the Power Workers Union, all had ties to unions, environmental groups and opposition political parties - that is, the Liberals and the NDP. The firing was timed to remove vocal opponents of privatization from the Ontario Hydro board immediately before the board was to adopt its position with respect to privatization. Neither the choice of the five nor the timing was any accident.
The government has not only acted in bad faith, but it was also held by the Ontario court to have acted unlawfully. The court reinstated the directors, but the message from the government was clear. It was willing to break the law to impose its agenda on anyone who disagrees with it.
Next, the budget of the Ministry of Labour was cut in half. This is the ministry that Bill C-3 empowers to administer labour relations matters with respect to nuclear workers. About 450 lay-offs will occur in the ministry.
Honourable senators, can you imagine being a nuclear employee at Ontario Hydro and being told that you are being removed from the federal sphere and put into the waiting arms of a provincial government that has just finished doing all these things? The bill is a recipe for labour relations unrest at nuclear plants.
The Ontario government is the government to which Bill C-3 proposes to delegate federal authority over nuclear facilities.
The delegation is essentially a carte blanche because it permits a regulation that would incorporate all future amendments to provincial labour law and automatically have them apply to nuclear workers. That is a very unusual way of incorporating provincial law. Typically, the incorporation would take place as at a specific period in time, and future amendments to provincial law would have to be imposed on the federal regime by the federal government after review of the future amendments, as opposed to having them apply automatically.
The bill will cause unrest and fear and dissatisfaction in Canada's largest nuclear facilities. Labour relations at Ontario Hydro will receive a body blow from which recovery may be impossible.
The concern with this delegation is not only putting the affairs of the nuclear workers into the hands of a government that has been attacking labour since it took power, but also doing it in a completely unnecessary way. As I say, there are no practical problems that we can see with the current regime requiring such a delegation.
Next, in addition to being unnecessary and destructive of labour relations, Bill C-3 has been introduced at the worst possible time. As indicated above, the Ontario government is currently in the process of the biggest overhaul of legislation relating to workers in decades. It will be some time before one has a clear understanding of precisely what the Government of Ontario intends to do with occupational health and safety and employment standard provisions. There is a level of uncertainty.
Furthermore, the McDonald committee report into the future of Ontario Hydro has been delayed for several weeks. That report will have a serious effect on what the government intends to do with Ontario Hydro and with Ontario Hydro Nuclear. We do not know what will happen there.
Furthermore, collective bargaining between the power workers union, which represents approximately 70 per cent of the employees of Ontario Hydro, and Ontario Hydro is ongoing in an attempt to reach a collective agreement by the end of May. Obviously uncertainty is detrimental to the success of those negotiations.
Furthermore, proposals to merge Atomic Energy of Canada Limited and Ontario Hydro Nuclear have been discussed openly. The effect of such a merger, of course, would be that, even if Bill C-3 were passed, if OHN and the AECL were merged into one nuclear agency, the same workers that you would be putting into provincial hands now would move back into federal hands. That hardly makes sense. It turns the bill into a complete waste of time and money. In my submission, it would simply result in throwing even more confusion into this mixed-up pot.
In other words, this is a time of great but as yet incomplete legislative change in Ontario at the provincial level and a critical time in collective bargaining. In our respectful submission, the federal government should not simply adopt, holus bolus, provincial law in the area and automatically adopt any amendments to it, and it should not add further uncertainty to the existing situation with respect to collective bargaining.
If the bill is to be passed at all, in our submission the passage should be delayed until collective bargaining is over, until legislative reform with respect to Ontario Hydro and the general labour law is complete in the provinces, and until the Nuclear Canada issue has been dealt with by Parliament.
In conclusion, we were told two years ago by the province Ministry of Labour officials - and I am reading from the brief at page 7 - at a meeting to discuss the possibility of a delegation of federal authority, that the provincial government would not pursue such an option if the PWU did not desire it. We informed them that, at that time, that we did not desire it. Our opposition to such legislation is steadfast for the reasons we have already set out.
Yet the federal government proposes to proceed with this law in the face of such opposition. We submit that it is unnecessary, inappropriate and discriminatory to have the Canada Labour Code apply to all employees within federal authority except those who work at nuclear facilities. They are the one group of employees who have been held by the Supreme Court of Canada to require their labour relations to be regulated federally as part of Parliament's authority to assure the safety of nuclear facilities and materials.
Furthermore, the government proposes not only to adopt provincial law as it now stands but to allow the provinces to unilaterally amend their laws and have such amendments automatically apply to nuclear employees. This is an unusual method, as I have indicated, of incorporation which effectively gives carte blanche to provincial governments over labour relations at nuclear facilities.
This is close to a complete abdication of federal authority in the field. While the federal government could become involved after provincial amendment and repeal its effects, it may be too late at that stage.
Surely, even if the federal interest in the safe operation of nuclear operations permits the incorporation in provincial law as it now stands and we contend that it does not, that interest would require that future amendments to provincial law be analyzed by the federal government in light of the interests before they can be incorporated and applied in nuclear facilities.
We urge the committee to recommend that Bill C-3 not be enacted but that the Canada Labour Code be amended to make it applicable to provincial Crown agencies operating in the nuclear field.
As an alternative, if the bill is to be passed at all, passage ought to be delayed, as I indicated earlier. In any event, the bill should be modified so as not to permit automatic referential incorporation of future provincial legislative changes.
Mr. Mario Germani, President, Society of Ontario Hydro Professional and Administrative Employees: I should like to thank this committee for listening to the affected parties before proceeding to pass Bill C-3 through the Senate.
We believe that no legislation which overrides the decision of the Supreme Court of Canada and which will have a significant impact on labour relations and employees of Ontario and other provinces should be undertaken without input from those affected.
Our society has been representing employees at Ontario Hydro for over 50 years. Our membership of over 5,000 includes engineers, scientists, administrative and supervisory employees. Roughly one-third of our membership are employed at Ontario Hydro nuclear operations.
It was our society's certification application to the Ontario Labour Relations Board in 1986 which led to the Supreme Court decision that the federal government properly had jurisdiction over Ontario Hydro's nuclear operations. The society certified its nuclear employees under the Canada Labour Code shortly thereafter and has negotiated a recognition clause which covers all society-represented employees at Ontario Hydro.
We have one collective agreement which applies to all these employees and have enjoyed a constructive labour bargaining relationship with Ontario Hydro within that framework. We appear today to oppose the passage of Bill C-3 and to express our views on the text of the bill as it now stands.
Our society knows that the Supreme Court of Canada has in the past approved of interdelegation schemes which are similar to those proposed by Bill C-3. Nevertheless, we find it unreasonable that the government is proposing such a scheme with respect to jurisdiction which has been specifically held by the Supreme Court to be exclusively within the federal jurisdiction.
The Supreme Court found in 1993 that the federal government had exclusive jurisdiction over labour relations in nuclear operations governed by the Atomic Energy Control Act which provides that these operations are for the general advantage of Canada.
Due to the declaration in this legislation, atomic energy undertakings are exclusively in the federal jurisdiction, as stated by Justice Laforest in the 1993 decision:
Labour relations are an integral part of Parliament's exclusive power to legislate in relation to declared works. No evidence is required to establish this.
However, the court did go further and decided that significant policy considerations linked the regulation oversight of nuclear power to the oversight of labour relations in nuclear operations.
These policy considerations should not be disregarded by this committee or by the government. Chief Justice Lamer discussed regulations, licensing of nuclear operations and why it makes sense to have both régimes under the authority of the same government:
The various restrictions on who may be employed at the facility might be incorporated into the collective agreement... The requirement that the collective agreement conform to the regulatory requirements of the statue, regulations and licence may be relevant to proceedings to determine whether the parties were bargaining in good faith.
I draw these parallels not to suggest that the regulations will dictate the substantive content of collective agreements for those employed on or in connection with nuclear energy production facilities, but rather to show that the matters of concern to management and labour in drafting and negotiating a collective agreement are reflected in regulations, and that the interests in both cases are quite similar. As in the case with the Atomic Energy Control Act, Parliament's regulation of nuclear facilities, under the concerns of health, safety and security, includes a strong employment and labour relations complement.
Justice Laforest, in rejecting arguments that labour relations in atomic energy undertakings were not necessarily within the federal jurisdiction, went on to say:
I next note the argument that the declared nuclear facilities fall to be regulated by federal authorities but only in relation to their safety and security aspects not labour regulations generally... I find difficulty in understanding that argument because safety and security are as much in jeopardy from the manner in which employees do their work as in the manner in which a facility is constructed, and, as the Chief Justice points out, many of the regulations of the Atomic Energy Control Board have to do with labour relations. The fact that these are established by one federal organism rather than another does not affect their character.
We submit that it is proper that atomic energy be federally regulated. Federal oversight has served us well, given Canada's history of superior nuclear technology and safety. With respect to nuclear labour relations, it is clear that the Supreme Court of Canada found these to be in the federal jurisdiction, not on narrow legal grounds but because they are important links between the regulation of nuclear facilities and the regulation of labour relations in these facilities.
We urge this committee and the federal government to consider these factors carefully before disturbing the regulatory and labour relations regime.
The Chairman: I should remind you that we do not have time to hear your entire brief. Perhaps you could highlight some of its recommendations. Then we will ask you questions.
Mr. Germani: I was going through the brief for the benefit of committee members who have not had a chance to read it. I will try to summarize the areas we think are most important.
Society has been functioning under these two regimes since 1993. We have not experienced the difficulty that the Minister of Labour talked about in Parliament. We have been able to work with both the Ontario and the Canada labour codes, and we have been able to go to the appropriate authorities as required.
As expressed by the Power Workers Union, we are concerned about the way the premier of Ontario is conducting labour relations within Ontario. He is changing a number of the existing laws to get at various labour bargaining relationships rather than trying to bargain those relationships. That has changed the way the government does its business in Ontario.
One of our main concerns with the text of Bill C-3 is how it applies to collective bargaining and successor rights. As the bill now stands, successor rights in our jurisdiction will transfer over when this bill is passed. However, there are no guarantees in the future as to what will happen to our successor rights when we are under the provincial legislation.
We also have concerns with a number of our employees currently covered by the Canada Labour Code who are allowed to be represented by unions under the Canada Labour Code. These are specifically supervisory employees. Things are not clear under the Ontario Labour Code. Some of these employees had to go through a number of hearings a few years ago at the provincial level to determine whether they were in or out of our bargaining unit. Should this legislation pass, possibly 1,000 of our members may be challenged again by Ontario Hydro as to whether or not they should be in the union. We will have to respond with arguments down at the Labour Board, an expensive and time-consuming proposition. We do not look forward to going through that exercise.
Our other major concern with the legislation is its anticipatory nature; it allows future changes to be done by the provincial government without the federal government or the unions getting involved ahead of time. We prefer a process that allows us to be part of the consultative process before changes are made rather than having to deal with these changes after the fact.
We also understand that the federal government is looking at the Sims task force report which looks at a number of changes in the Canada Labour Code. It makes sense to us that if changes are made to the Canada Labour Code, they should be made in conjunction with all the changes and not just focus on one small part of the changes at the present time.
If the committee wishes to hear them, we have suggestions on how we can improve some of the jurisdictional aspects of the legislation.
I would be happy now to take any questions that you may have.
Senator Gigantès: I draw your attention to clauses 121.1 and 121.2 on page 1 of the bill, the application of provincial laws. Clause 121.1 states:
The Governor in Council may by regulation direct...
The clause says "may", not "must".
Clause 121.2(1) states:
The Governor in Council may by regulation exclude, in whole or in part, from the application of any of the provisions of this Part any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation...
This is repeated later in clause 159(1).
In other words, when we have concerns about safety, we have to assume that the federal government, faced with a provincial government prepared to throw safety out the window - and I have difficulty in imagining even Mr. Harris doing that and risking a Chernobyl - would not exclude certain activities and certain employment for the sake of safety. The federal government also would not disregard safety. Provisions in the bill allow the federal government not to delegate things if necessary.
Mr. Dassios: There are a couple of concerns with that. First, the provision that allows the government not to delegate is after the fact. The technical term is "referential incorporation." It is another way of delegating without running a file of constitutional prohibitions to delegations, which is exactly what is going on here.
The federal government will incorporate provincial laws as they now stand or are changed from time to time. For example, let us say that the government is satisfied with the Ontario Occupational Health and Safety Act as it now stands. Whether Mr. Harris is prepared to throw safety out the window will become evident only after the amendments are passed. However, those amendments will automatically apply to federal nuclear facilities until the government gets around to passing a regulation exempting them. It is after the fact, and that is one problem.
Second, exempting certain groups and categories of workers from provincial law will create an administrative problem that currently does not exist. It is very easy to say that Ontario Hydro Nuclear is governed by the federal law and the rest of Hydro is governed by provincial law. It is more difficult to mesh certain categories of employees within Ontario Hydro Nuclear covered by federal law and certain categories covered by provincial law.
The issue of "may" and "does not have to" ignores the real problem. The Supreme Court of Canada said that the federal legislative authority belongs to Parliament. Once this bill is passed, the federal government will be able to pass regulations as it sees fit. It has exempted itself in the Statutory Instruments Act, so the regulations will take place immediately. None of that will be reviewed by the House of Commons, the Senate or committees such as this. It will be done on paper and take effect immediately without any legislative review. That is problematic from our point of view.
Senator Gigantès: However, in clause 159(1), all of this must be done pursuant to the Atomic Energy Control Act. The federal government has a responsibility not to contravene that act, which is the act governing safety; is that correct?
Mr. Dassios: No, it does not say it must comply with the Atomic Control Act.
Senator Gigantès: It says "pursuant". The word "pursuant" means, if I am not mistaken, "in accordance with," "running along with."
Mr. Dassios: What it says is, "on or in connection with a work or undertaking." It says that the federal government can exclude by regulation the application of this act to employees who are governed by the Atomic Energy Control Act. Nobody is saying that the Atomic Energy Control Act will not continue to govern these employees; it will. However, the problem as pointed out by Supreme Court of Canada is that you must have the same level of government regulating both the safety under the Atomic Energy Control Act and the labour relations because you cannot divorce the two.
The Supreme Court of Canada went into detail in reviewing the Atomic Energy Control Act regulations, in reviewing the licences granted under the Atomic Energy Control Act and in reviewing international treaties, and came to the conclusion that, in each of those instances, the labour relations cannot be divorced from the safety aspect.
Senator Gigantès: You are making the assumption that the federal minister and the provincial minister will enter into some agreement which will divorce safety.
Mr. Dassios: It is not an assumption.
Senator Gigantès: It is an assumption, because if they are conscious of safety, they will be very careful to do nothing to endanger safety. After Chernobyl, I cannot see any sane person forgetting that.
Clause 121.4(5) states:
Any rights, privileges or duties acquired under this Part by the bargaining unit, bargaining agent, employer or employees before the time when a regulation is made are deemed to have been acquired pursuant to the regulation on the day on which they were acquired.
This seems to me to be protecting your acquired rights against Mr. Harris.
Ms Mundy McLaughlin, Staff Officer, Society of Ontario Hydro Professional and Administrative Employees: Just for clarification there, we were told by the previous committee and by the Minister of Labour in his letter that that protects our rights through the regulatory transfer. However, if, subsequent to that, Premier Harris decides to legislate away our successor rights, it does not protect us in that case.
In that case, you are creating a situation where employees who are properly, constitutionally, under the federal jurisdiction do not have the rights of other employees in the federal jurisdiction. This is our main concern with this bill. It is creating a class of employees who, according to the Supreme Court of Canada, belong in the federal jurisdiction but are losing some of their rights to organize and may lose successor rights that they would properly have in the Canadian jurisdiction. This is one of our main concerns.
Senator Gigantès: You are saying that this paragraph is meaningless?
Ms McLaughlin: It only protects us through the regulatory transfer which, arguably, we would have anyway. It means that, because we are transferred into the provincial jurisdiction, our certification will be maintained through that transfer. However, subsequent to that, we are at the mercy of the provincial government, so to speak.
Senator Gigantès: Rights and privileges acquired are retained, it says in here, on the day the regulation is passed.
Senator Rompkey: I want to clarify that because I think I agree with you. If Harris legislates differently from what is in this legislation, he runs afoul of this legislation, it seems to me. You would have legislation in conflict. Is that not right?
Ms McLaughlin: I can read to you from the letter of the Minister of Labour, if you like, because he clarifies this point.
Senator Gigantès: Which Minister of Labour are we talking about?
Mr. Germani: Minister Gagliano.
Ms McLaughlin: As you know, Bill C-3 protects the composition of the bargaining unit in the transition from federal to provincial law. However, should an application be made to provincial authorities in the regular open period, provincial law would be considered in the determination of the appropriate bargaining unit. It is, however, unavoidable that, in such a transition, each affected party in each of the four provinces may gain in some cases while losing in others.
Here there is an acknowledgement that, after the initial transition from federal to provincial law, provincial law will determine the rights for jurisdictional and also for successor rights.
Senator Gigantès: It says here that you retain your acquired rights. That is what the legislation says. If you are talking of negotiating future rights, that is another matter.
Senator Haidasz: Just to go back a few steps, do I understand that there is a possible strike at Ontario Hydro?
Mr. Dassios: The power workers will be in a legal strike position as of the end of May.
Senator Haidasz: And what are the reasons for the strike?
Mr. Dassios: A strike has not been called. We will be in a strike position. We are in negotiations right now.
The Chairman: You will be in a strike position if negotiations break down.
Mr. Dassios: Yes.
Senator Haidasz: What are you demanding?
Mr. Dassios: Not much. It is what the employer is demanding that is the problem. They are demanding wage rollbacks, rollbacks on overtime pay, rollbacks on successor rights. They are demanding that employees work more hours per week for the same amount of pay. It is a huge swath of cutbacks at a time when the employer is making $1.4 billion in profit. That is the problem.
Mr. Ron Dugas, Chief Steward, Power Workers Union: It is rolling us back about 50 years in labour relations in Ontario.
Senator Haidasz: Are you worried about the privatization of Ontario Hydro ownership?
Mr. Dassios: Yes. There is no need for private ownership as far as we can tell. On the other hand, we are not averse to competition in the industry at all, but private ownership would result in higher prices for consumers and would effectively be problematic for us as a result.
Senator Haidasz: You are saying it would be rather prudent to withhold this legislation until everything gets settled with your negotiations and the provincial government?
Mr. Dassios: Right.
Senator Haidasz: There has been news in our press about something going wrong at the power plant in Pickering. Could you just elucidate what really went wrong and what were the real dangers?
Mr. Dugas: I have a rough idea. Basically, a safety system was discovered to be - how would we put this - in disarray. However, it was not a safety system which was being presently used. It was during the testing of a safety system that they found an error in the functioning of one of the pieces of equipment. They decided, under the guise of safety for all the people in the province, that the best action would be to shut everything down and repair the faulty valve.
Just to touch on your privatization issue, I am quite confident that if Pickering had been under private ownership, there would have been no way they would have shut down the generating station to make the repairs on that valve.
Senator Haidasz: That is very serious.
Mr. Dugas: Yes.
Senator Lavoie-Roux: I understand your concerns. However, if there was another provincial government in Ontario, would your representation be the same?
Mr. Dugas: Absolutely. We took this position when the NDP was in power, as you will see from our brief. The NDP had, unlike the current government, consulted with us beforehand and asked whether we would be interested in a delegation back to the federal government. We said no because, frankly, there is no problem there. Why fix something that is not broken? Our nuclear employees have been told by the highest court in Canada that they should be treated the same as other federal employees. So why should they be treated as provincial employees?
Ms McLaughlin: I would like to add to that. I am not sure whether this committee is aware that, currently, a committee of the provincial government is examining future ownership scenarios for Ontario Hydro. Our other objection is the timing of this legislation. This bill may put into place a scheme, and then there may be a transfer of Ontario Hydro Nuclear to another owner. The timing is a problem as well as the current government.
The Chairman: There is also a proposal to merge.
Ms McLaughlin: Yes, with ACL.
Mr. Dassios: The report was supposed to come out today, but it has been delayed for several weeks according to our most recent notification.
Senator Lavoie-Roux: It could be delayed as late as June, I understand.
The Chairman: You made this presentation to the House of Commons, correct?
Mr. Dassios: Yes, we did.
Ms Susan J. Serena, Assistant General Counsel, Employment Law, Law Division, Ontario Hydro: I will not read my submission. It is quite short and I assume it has been supplied in both official languages.
You have heard a fair bit about Ontario Hydro this morning. I wish to highlight a couple of points. Ontario Hydro is the largest electric utility in North America in terms of capacity. It currently employs approximately 22,000 employees; 10,000 of whom work at or in support of the company's nuclear stations which house 20 nuclear generating units, a tritium removal facility and a heavy water plant.
Senator Rompkey: What is the capacity of Ontario Hydro in terms of megawatts?
Ms Serena: The installed capacity is 34,000 megawatts, 60 per cent of which comes from the nuclear facilities.
Senator Lavoie-Roux: Did you say that it is the largest facility in North America?
Ms Serena: Yes, in terms of installed capacity.
Senator Lavoie-Roux: Is it larger than Hydro-Québec?
Ms Serena: I believe so. That is what they tell me.
Senator Lavoie-Roux: That leaves room for a little doubt.
Ms Serena: Prior to 1993, Ontario Hydro operated entirely under provincial jurisdiction but for the provisions of the Atomic Energy Control Act. The circumstance which we now face is a fairly recent event. It has occurred only since September of 1993.
While you have heard our two unions say this morning that they want a continuation of that status quo, they in fact took the opposite position until very recently. Throughout the court proceedings that led to the 1993 decision, they opposed the transfer of jurisdiction to federal government.
As a result of the decision of the Supreme Court of Canada, it is often very difficult to tell which tasks and employees fall under federal jurisdiction and which fall under provincial jurisdiction. Ontario Hydro has reorganized into business units of which Ontario Hydro Nuclear is one, with the provincially regulated portions in other business units. The fact remains that that is something which the company has done internally. We hope we have picked the right people to fall on either side of the line, but that is always subject to challenge.
Our brief indicates that even the court itself had some trouble in deciding where to draw the line. The Chief Justice felt that the line should be drawn at the employees who actually worked in the nuclear reactor, as opposed to the employees who worked in respect of the generators and the turbines which are run by the reactors.
Three members of the court took a broader view and said that you draw the line at anyone working at a nuclear station or in support of a nuclear station. Then, of course, three members of the court said it is provincial, so we did not have a very definitive ruling.
Even when the decisions is taken on how to divide the employee groups, problems can still arise when one integrated company is subject to provisions from two different regimes in respect of essentially the same subject-matter. This obviously creates difficulties for employees who have bumping or transfer rights across the company. In one year an employee may be federally regulated and the next year, because of a change in jobs, may be provincially regulated, or vice versa. Problems arise for supervisory personnel who must learn to apply two sets of legislation.
The legislation is similar in many respects. However, notwithstanding the events you have heard about in respect to the Government of Ontario, both administrative and substantive differences do exist to some degree in such areas as hours of work, overtime permits, maternity and adoption leave, parental leave, bereavement leave, meal periods, severance, notice of separation, statutory holidays and notice of technological change.
It can happen that, in one year, an employee gets Remembrance Day off; the next year he may not. A female employee may receive maternity leave under one legislative regime and, a couple of years later, receive different benefits under another regime.
If mass terminations are required, how do we give notice to the federal department or the provincial ministry under circumstances where we do not know, at the end of the day, exactly how many employees will be displaced due to province-wide bumping rights or other obligations which arise under the two sets of legislation.
Employees are often unsure of their jurisdiction. They do not know where to lodge complaints; they often make the wrong choice and then find that they are out of time to launch their complaint in the right venue.
Ontario Hydro has a number of collective agreements. Our main collective agreements in the industrial sector are with my colleagues who spoke earlier, the Power Workers' Union and the Society of Ontario Hydro Professional and Administrative Employees. There are situations where an unfair labour practice complaint or a grievance arising out of the same set of facts could lead to complaints lodged before both the Canada Labour Relations Board and the Ontario Labour Relations Board. They in turn could lead to judicial reviews before the Federal Court of Canada or the Ontario court system. That, of course, leads to multiplication of proceedings and the possibility for inconsistent outcomes.
During collective bargaining, the parties have to comply with two sets of rules governing such issues as strike votes, notices to bargain and the establishment of legal strike and lock-out dates. We must have two conciliators appointed, one from the federal government and one from the provincial government. Also, labour unrest and illegal work stoppages could lead to multiplicity of proceedings before various courts and tribunals.
Ontario Hydro is also unique in the sense that it has relationships with 17 construction unions under the construction provisions of the Ontario Labour Relations Act. When we perform work at our nuclear plants, issues arise as to whether the work they are performing is federally regulated or provincially regulated. That depends on the nature and the extent of the work being performed. If there is a dispute as to under which building trade some federally regulated union work falls - whether it is a bricklayer's job or a mason's job, for example - there is no one to resolve the dispute. Alternatively, we can get into disputes between an industrial union and a building trade union as to the performance of the work.
In conclusion, we say that the split jurisdiction has created difficulties. The status quo up to 1993 was supported by all parties. It would be appropriate that Bill C-3 be passed so that the federal government, in consultation with the province of Ontario - as was discussed quite thoroughly with the minister when he made his presentation - have the ability to resolve the types of problems I have outlined in order that the delivery of electrical power to the residents of Ontario is not clouded by the types of problems I have identified.
As I said, Ontario Hydro is a fully integrated company, notwithstanding its business units. Forty per cent of our power comes from provincially regulated facilities, 60 per cent from federally regulated facilities. We need both of them operating to keep the lights on not only in Toronto but also in Ottawa. No one would condone a system whereby a localized problem would jeopardize the complete electrical system. All efforts should be made to resolve this type of difficulty.
In short, Ontario Hydro supports the passage of the legislation. I would be pleased to answer any questions.
Senator Cohen: Do you believe that this is the right time for the passage of this bill considering that there could be changes in the ownership of Ontario Hydro and that negotiations are now in progress between the workers and Ontario Hydro and that we are awaiting the report of the Sims task force?
Ms Serena: With regard to the Sims task force report, changes to the Canada Labour Code would not resolve the problems that I have identified unless, for some reason, the Sims report intended to replicate provincial legislation in the Canada Labour Code. I do not think that is its goal. There would still be differences between federal legislation and provincial legislation of the types identified by my friends from Hydro-Québec and myself. I do not see that report as a solution.
With regard to whether the ongoing contract negotiations should delay the legislation, I would say the exact opposite. We are going down a road which could technically lead to a labour dispute and a strike. To have a strike operate under two regimes would be, quite frankly, playing with fire. It invites the type of problems I have identified of multiple regimes and multiple outcomes and confusion as to whether employees fall under federal legislation or provincial legislation, whether they have the right to strike and whether they have met the right legislative requirements. There is never a good time.
Senator Cohen: What are the ramifications with regard to the future ownership issue?
Ms Serena: My comments in respect of that issue would be twofold. First, this legislation does not apply only to Ontario Hydro. You have heard Hydro-Québec say that they want the legislation. They are not into an ownership issue. You have not heard from New Brunswick Hydro, but my understanding is that they support the legislation. They are not into an owner issue.
In terms of Ontario Hydro's ownership issue, no matter who owns them, the issues will be the same. If you were to sell Ontario Hydro to private concerns tomorrow, it would still be faced with precisely the same problems I have identified; it would be subject to two legislative regimes, two dispute resolution mechanisms and two adjudicative entities.
Senator Rompkey: With regard to the judgment of the court, what was the court asked to decide; was it where the jurisdiction lay or where it should lie?
Ms Serena: The court was asked to decide where it did lie under constitutional law.
Senator Romkey: They were not asked to decide where it should lie?
Ms Serena: No. In fact, my submission indicates that the court recognized the issue of where it should lie and where it did lie. As I quoted earlier:
The declaration is confined to facilities constructed for the production, use and application of atomic energy, not to those constructed for the production of electrical energy by other means. The precise determination of which persons are employed in one type of facility or the other may, no doubt, give rise to problems of categorization. That issue is not, however, before us, we have no evidence on it, and I refrain from commenting on the matter.
They obviously left open the fact that this may create a problem, but it was not their problem to resolve. They simply had to determine whether it was a federally regulated area or a provincially regulated one.
The Chairman: Are there multiple jurisdictions in your trades? Could plumbers and pipe fitters work together, for example, or are they each a separate unit?
Ms Serena: On the building trade side, they are subject to separate collective agreements. They could be working side by side and on the same task.
Senator Cohen: You mentioned that the workers had opposing positions at one time. I should like to hear from the workers as to why they changed.
Mr. Dassios: We had originally opposed federal authority in the area for fear that the administrative problems of split jurisdiction would be excessive. During the course of the litigation, Hydro reorganized itself into business units that are discrete. After the end of the litigation, Hydro and the Power Workers agreed that the federal entity was Ontario Hydro Nuclear and the Canada Labour Board accepted that Ontario Hydro Nuclear was the federal entity in an application filed by the society. Therefore, we have a very clear picture of the employer who is governed by the federal law, so there are none of the administrative problems we feared there would be.
By the way, the federal government fought steadfastly in favour of federal authority. One would have to ask why we litigated at our expense for five years to have the federal government win and decide to throw it all back in the hands of the province.
Ms McLaughlin: The answer would essentially be the same for the Society, but I would like to add that both unions have one collective agreement which covers all the employees, both in Ontario Hydro Nuclear and in the other operations. Therefore, many of the administrative difficulties we foresaw in the legislation did not end up being a problem.
The Chairman: Did you make a presentation before the House of Commons?
Ms Serena: We did not. New Brunswick Hydro made a submission and we felt that ours and theirs were very similar.
The Chairman: Thank you very much.
We have the opportunity to consider this bill clause by clause today, if you so wish. We were also going to consider a draft of our budget.
With regard to communications, Senator Bosa called me and said that he would not be able to attend the steering committee today. He would like us to hold any decision on communication expenses until he can be with us. I agreed to that.
Would you like to dispense with this bill today?
Senator Lavoie-Roux: This bill is more complicated than it may seem at first glance. I would like to have time to reflect a little more on it and decide whether it would be worthwhile to at least make some recommendations, even if we make no amendments.
If I am the only one who feels this way, I will not hold the others back. However, I believe that it would be safer to give it a little more reflection.
Senator Bonnell: Why do we not report the bill with no amendments? If Senator Lavoie-Roux has some problems with the bill, perhaps she can look into it, but the rest of us think the bill is all right the way it is. Ontario Hydro thinks it is all right. Why do we not just report the bill with no amendment rather than dragging our feet?
Senator Lavoie-Roux: Do what you want, but I do not agree with it.
Senator Cohen: I agree with Senator Lavoie-Roux.
Senator Bonnell: You always agree with her.
Senator Cohen: I do not always agree with her. It is a confusing bill. I do not come from Canada's labour sector and I need time to study it.
Senator Bonnell: I move that the bill be reported with no amendments.
The Chairman: It has been moved that this bill be reported with no amendments. I will ask for a show of hands.
Will all those in favour of reporting the bill without amendment please raise your hands?
Will all those opposed please raise your hands?
There being four in favour of the motion and two opposed, I will report the bill without amendment.
Senator Lavoie-Roux: Madam Chairman, I know that you have taken a democratic vote, but I object to doing this quality of work. It is not my intention to make amendments but there may be some worthwhile recommendations we could make. We have not had time to reflect. If this is the kind of work we are going to do, let us do without these meetings.
The Chairman: I do not disagree with you, senator, but I have no choice as chairman. When a motion is put, I have to put the motion to the committee.
Shall we report the title of the bill?
Honourable Senators: Agreed.
The committee adjourned.