Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 14 - Evidence - June 9, 1998
OTTAWA, Tuesday, June 9, 1998
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-19, to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, met this day at 10:00 a.m. to give consideration to the bill.
Senator Colin Kenny (Acting Chairman) in the Chair.
[English]
The Acting Chairman: Honourable senators, we have before us Brenda Chamberlain, Parliamentary Secretary to the Minister of Labour, and Mr. Michael McDermott, Senior Assistant Deputy Minister, Legislative Review.
Ms Chamberlain, Parliamentary Secretary to the Minister of Labour: First, I would like to thank you for having me here today. I should like to advise the committee that Minister MacAulay is in Geneva. He would have liked to be here today but he is at the ILO. I know he will be back for the committee's meeting on approximately June 17 for clause-by-clause study.
I am honoured to join you today at this stage of parliamentary debate on this very important bill to amend Part I of the Canada Labour Code. Those of you who served on this committee during the last Parliament may be familiar with the major components of this bill. That is because it is based on its predecessor, Bill C-66, which made it all the way to third reading in the Senate, only to die on the Order Paper with the election call.
Last fall, we reintroduced it to the house as Bill C-19. It was debated at length in the chamber and in committee and received third reading a short while ago.
At second reading in the Senate, Senator Maheu recently gave a good description of the contents of this bill, including how we addressed the concerns which honourable senators had raised during debate on its predecessor. Today I should like to take a step back to talk a little about perspective and to review the context of the complex world of industrial relations.
Part I of the Canada Labour Code covers some 700,000 employees, about 50 per cent of whom are covered by collective agreement. A very significant portion of these are in the key transportation and communications sectors, both significant to the economic fabric of the country, and both subject to rapid workplace change. In this context, it is not surprising that when we try to amend legislation, it is easy to find things we disagree on, but let us start by looking at what we can all agree on.
We have a tradition of free collective bargaining that goes back to the beginning of this century. Canadians have always believed in the rights of the parties to freely negotiate the terms of employment and compensation, with the ultimate sanction of strike or lockout as tools of the process. I am sure everyone here agrees with these fundamentals of Canadian democracy. We can agree that, for the most part, the system has succeeded much more than it has failed. Over 95 per cent of settlements are reached without the disruption caused by a strike or a lockout.
We can also agree that in recent years the world of work has been changing more rapidly and more fundamentally than ever before. Global trade, corporate restructuring and rapid advances in technology and telecommunications have affected all of us. There is hardly a worksite that has not felt the impact of computer technology. Even our language has changed to describe working and manufacturing processes that did not exist a decade ago.
Finally, we can agree that as our language, our work, our social structures and even our family life change, so, too, must our laws change to keep pace.
The amendments found in Bill C-19 try to do just that, to bring federal labour legislation into the 21st century.
To say that consultations have been extensive would be an understatement. We have arrived here through a process that started almost three years ago. Under the leadership of the Sims Task Force, appointed in late June 1995, public consultations were held across Canada in the fall of that year. The list of stakeholder groups who appeared in person, or who made written submissions, reads like a Who's Who of labour-management stakeholders in Canada.
Provincial federations of labour, business and employer councils, individual unions and national labour bodies, federal employers, manufacturing and communications groups, and chambers of commerce all had their say. The subsequent report of the Sims Task Force laid out the groundwork for the development and introduction of Bill C-66 and its successor, Bill C-19, which was thoroughly debated in the house and in committee. From consultation with experts, stakeholders, the public and parliamentarians, I think it is fair to say that the provisions in this bill have been thoroughly debated.
I will be the first to admit that Bill C-19 covers some matters that are not easy to deal with. Labour relations in a country as large and diverse as Canada do not lend themselves to quick solutions, particularly when you try to see the point of view of both sides.
That is why this bill, which modernizes the terms and conditions under which the stakeholders will negotiate, is so very important. Part I of the Canada Labour Code has always been about balancing the rights and responsibilities of employers, unions and employees, and providing a fair process and procedure for the timely resolution of disputes. It tackles some of the difficult issues you raised last year and more recently.
For example, Sims said there should be no general prohibition of replacement workers, and there is none in this bill. There is a specific possibility for a prohibition. Here we have used the full wording of Sims, that the use of replacement workers in a dispute for the demonstrated purpose of undermining the union's representational capacity, rather than the pursuit of legitimate bargaining objectives, is prohibited. Sims went on to say that, in the event of such a finding, the board should be given specific remedial powers to order their discontinuance, and we have done that.
Earlier in your discussions, Senator Maheu described in some detail the issue of union certification as given in clause 46. It allows the board to certify a trade union as a remedy for an unfair labour practice committed by an employer. I will not repeat the ground so ably covered by the senator on the fairness of this provision, except perhaps to add that no persons should profit from their wrongdoing, including and perhaps especially when it comes to the form of an unfair labour practice.
On the grain issue, we accept fully that there was no consensus reached, but everyone recognizes that we had to stop the misuse of Parliament by the parties who would call upon us to solve their problems. Bill C-19 does this by requiring the continuation of services to grain vessels in the event of a work stoppage in our ports. I might note that this provision has the complete support of our grain farmers and the grain industry, the very people we are trying to protect with this clause. Its effectiveness will be reviewed following the next round of West Coast longshore collective bargaining.
On these and all the provisions of Bill C-19, the debate always gets back to the question of balance. Therefore, we must ask ourselves this question: All things being equal, does this bill present a balanced set of processes and procedures for our complex world of labour relations? As parliamentarians and law makers, we must take exactly this approach, especially on the difficult issues. If we do not offer balance and fairness, then, I ask you, who will?
This bill responds to those challenges. This bill is fair and balanced. This bill will improve the framework for collective bargaining and promote labour-management cooperation. I look forward to our discussion here today.
Senator Kinsella: Ms Chamberlain, thank you for your presentation.
Let me begin by saying that only when a parliamentary secretary or a minister is before us are we able to ask questions concerning government policy. When we have government officials before us, it is generally considered inappropriate to pose questions on government policy. Since you are our first witness, you can speak to questions of policy.
I do not know whether you have followed the debate on this bill at second reading. One of the issues we have apprehended is that, astonishingly, this bill and the attempt to modernize the Canada Labour Code and to bring it into the 21st century, to use your words, will result in the Canada Labour Code being anything but modern in the drafting language. It is replete with gender-specific language.
Is it not the policy of the Government of Canada to move away from drafting legislation which is gender-specific in its language? That is something which all governments in Canada have adopted, certainly in a strong way, since the mid-1980s.
Ms Chamberlain: I appreciate your concern in this area, senator. I have been informed that the part we have done in the drafting of Bill C-19 has been done in general, neutral language. I know this is a concern of yours. I am interested in knowing specifically where these areas of concern arise.
This bill conforms with Justice Canada's policy to draft new legislation in non-sexist terms. There are differences in the English and French versions. However, the general principles apply.
I would ask Michael McDermott to comment on the two areas about which we are speaking. We believe that the bill complies with your specific concern.
Mr. Michael McDermott, Senior Assistant Deputy Minister, Legislative Review, Part I of the Canada Labour Code, Department of Human Resources Canada: Mr. Chairman, the drafters of the bill have endeavoured to make it non-sexist in terms of its language. I have been assured of this by the draftsperson from Justice Canada. For example, there will now be a "chairperson" of the board, whereas in the existing code there is a "chairman."
The existing code is amended only in so far as the bill amends the substance of the code. There are no further amendments to the existing code, which has been around for some time, as you know, Senator Kinsella.
Senator Kinsella: Honourable senators will see that section 3 of the Labour Code is opened up for amendment by Bill C-19. In section 3(1)(b) of the code, rather than using a word like "fisher," for example, the word "fisherman" is used. Sections 105, 106 and 107 of the code refer to the minister and "his" board and what "he" would do.
Did the Justice Department drafting branch do the drafting upon written instructions from the Department of Labour or did your legal people do the drafting?
Mr. McDermott: Justice Canada drafters did the drafting in collaboration with the legal services branch of HRDC and with staff assistance from HRDC as well.
Senator Kinsella: The drafting instructions came from Labour Canada; is that right?
Mr. McDermott: They usually do, sir, yes.
Senator Kinsella: In the drafting instructions, the intent of the government, as expressed in the Speech from the Throne, was to "modernize" the Labour Code. The point that this measure is to modernize the Canada Labour Code has been underscored by Minister Gagliano with Bill C-66, Minister MacAulay with Bill C-19, the parliamentary secretary a few moments ago and my colleague Senator Maheu in her speech. If the instructions given by Labour Canada to the Justice Department were to draft these amendments in a manner that would allow us to modernize the Labour Code, how do you explain their oversight in giving to your minister a bill that does not make these corrections?
Mr. McDermott: Senator, I believe it conforms very much to any other existing statute that is amended. What is amended is changed and non-sexist terms are used. You cited section 105 of the Code. The existing section 105 is being changed by a renumbering and an additional subsection is being added to it. Therefore, the policy of Justice Canada, which determines the actual drafting language, is not to change section 105 because it involves simply a renumbering of the section and not a policy change.
Senator Kinsella: My understanding of our system of parliamentary governance is that the government expresses its policy and its program based upon that policy in the first instance in the Speech from the Throne. Government says, "This is our program based upon these policy principles." The policy principle that was articulated over and over again is that it is the wish of the government to modernize the Canada Labour Code. It was not to modernize some amendment but to modernize the Canada Labour Code. I think I am correct in saying that there has not been a major look at the Canada Labour Code for 25 years.
If this is the first time in 25 years that we are looking at the Canada Labour Code, then why have you not presented to your minister a revision of those sections which you open up by Bill C-19? Why did you not also say, "We have to clean up many other sections that are technically not opened by Bill C-19"? There are over 15 errors of drafting in those sections which are opened up by Bill C-19. Can you explain?
Mr. McDermott: I believe, senator, that the sections that were truly opened up on a policy basis have been cleansed, as it were, of sexist language. As I mentioned, we now have a chairperson of the labour board and we have not had that before. The Canada Labour Code was last changed comprehensively in 1973. There have been some amendments since, in 1978 and in 1984, but they were not of the same comprehensive nature.
The actual language of Bill C-19 has become gender-neutral and non-sexist. There is one section, although I do not remember the exact number, in which the words "he or she" are used. Other efforts have been made to avoid the use of gender-specific pronouns, et cetera. That has been observed.
My concern is the definition of what is open for change. We have been told that Justice Canada's policy is to draft all new legislation, where there is a completely new statute, as gender-neutral and to ensure that amending bills are gender-neutral. However, existing legislation will remain untouched. It would be a massive enterprise if all statutes were to be dealt with in that way.
Senator Kinsella: The witness has said that it would be a massive operation to make existing legislation gender-neutral. My opinion is that the number of amendments required would be finite.
If we have some flexibility within the time line that is proposed to deal with this bill, there may be sufficient time to make the gender-specific amendments to those sections of the code that are opened up by Bill C-19 as well as sections that are not. At any rate, that is a serious concern I have.
Senators who see their role as one of cleaning up legislation take this matter seriously. Unless there is an indication from the government that it is no longer their policy to have legislation written in gender-neutral terms, we will have to embark on these changes.
Turning to a question on a substantive matter, the parliamentary secretary raised the question of the certification process in clause 46 whereby the new Canada Industrial Relations Board would be able to certify a trade union if there had been an unfair labour practice. Even if the majority voted one way, the board would be able to impose a certification reflecting the minority view. In other words, by virtue of clause 46, we would be giving a democracy override to this Canada Industrial Relations Board.
My question, therefore, is to the parliamentary secretary: Did you read the seventeenth report of the Standing Senate Committee on Social Affairs, Science and Technology that was tabled in the Senate on April 25, 1997, to which you referred in your remarks? In particular, did you read the part where the senators took a position on the issue of certification and the democracy override provisions?
Ms Chamberlain: I have not read that particular report; however, I am aware of some of the senators' concerns in this area.
Senator Kinsella: My concerns are the concerns of my colleagues in the Senate, the majority of whom support the government. On the matter of certification, they offered specific advice. In the Journals of the Senate, it is on pages 1284 and 1285 of April 25, 1997.
The honourable senators pointed out that, in their view, the government was seeking to give the Canada Industrial Relations Board an extraordinary power. The senators said that such a provision should apply only in cases where truly intolerable conduct by an employer has been demonstrated.
Is it your view that this provision would be applied by the board only if intolerable circumstances were apprehended?
Ms Chamberlain: Yes, senator. With due respect, every one is concerned with this aspect of the bill.
I sat through many hearings of the bill. One of the lawyers who appeared spoke about this aspect at great length. Her reading of this area of the bill was that if an employer does use intimidation, such as firing or demotion, against people who would like to form a union, then what other remedy could there be? There are many employers who would gladly pay a fine rather than have a union. Fining employers will not solve the problem. The Government of Canada should take a strong stand in this area. Democracy must be allowed to work.
In answer to your question, this provision would be used only in extreme conditions where intimidation is found.
Senator Maheu: I am particularly perturbed by the comments on sexist phrases in the legislation. Section 33 of the Interpretation Act changes only parts of the legislation that are opened up. I do not know that I am satisfied with the answers I received today.
As to the French issue, we must distinguish between sex and gender. I should like to read it into the minutes of this meeting because I do not like to feel that our government -- when I know it is not so -- has suddenly become very sexist in their legislation as far as drafting language is concerned.
A word's gender is not linked to sex, in French. Thus, a man is une personne as much as a woman. Masculine gender names such as president, minister and mediator in the French language do not refer to the sex of the person who may occupy the position. Mr. McDermott has already brought up the fact that the word "chairman" has been replaced by the word "chairperson." "He or she" does not really matter in French.
There may be an attempt to have the government perceived as being sexist and I have strong objections to this. I want it made very clear and I want it read into the record that if we are overlooking something, we should propose an amendment immediately and do something about it.
I asked our colleague to bring up the certification issue again. Although you spoke about no other place in Canada being in the same situation, I would like it cleared up once again that Alberta, Manitoba, Ontario, Nova Scotia and Newfoundland have mandatory secret representation votes. Nothing has been mentioned about B.C., Saskatchewan, New Brunswick, P.E.I. or Quebec, who do not have mandatory votes. Could you comment on that, please?
I was given a document yesterday which indicated that the Province of Ontario introduced legislation on June 4. The amendment would remove the Ontario Labour Relations Board's authority to certificate an applicant trade union despite a negative representation vote, even where there have been unfair employer labour practices.
Ontario has had a regulation in place for 20 years and they would remove the regulation following one case, the Wal-Mart case. Wal-Mart would appear to be anti-union and, again, I have problems there. As far as certification goes, I ask you to elaborate a little further on which provinces do and do not allow it.
Ms Chamberlain: Let me first address the mandatory-vote situation, because I know in committee this was a real concern for people. Majority support has always been and would remain the basis for union certification. The Sims Task Force found that the card-based system has proved to be an effective way of gauging employee wishes and recommended that the board's authority to certify based on evidence of majority support should remain, as should the board's current authority to hold a representation vote in any case.
The card-based system has the advantage of requiring majority support of all employees in a bargaining unit, not only of those who participate in a vote. It also reduces opportunities for employer interference in employees' wishes. Maintaining the board's current authority with respect to holding a representation vote was part of the overall package of task force recommendations which both labour and management accepted as fair and balanced.
You are absolutely right when you talk about the five provinces having this in place. They obviously feel that this is an important component. They recognize that sometimes there are employers who do use intimidation. Some people may find it hard to believe that that happens, but, for some managers, the formation of a union is not a pleasant thought; in fact, it is more than not a pleasant thought. They will do anything not to allow the formation of a union.
We must understand that principle when we do make legislation, and that is precisely why we have included the things we have in this bill, to allow for movement and for balance. We believe also that the board, in the manner that we constructed it, will be vital in helping to know when infractions like this happen. The people who will be appointed must have a broad range of knowledge which we believe will be a key factor in remedying the situation when people do things they should not.
Senator Maheu: What about the sexist language; could you comment further?
Ms Chamberlain: Again, we have not changed the language of existing legislation, but we believe that the language in Bill C-19 is gender-neutral. It does conform to Justice Canada's policy with respect to drafting new legislation. However, I certainly understand where you are coming from, particularly as a woman, and I know that we want legislation done properly.
Senator DeWare: In this bill, we use the phrase "unfair labour practice" quite often. It is used in replacement workers certification, and so on. Why did this phrase need to be introduced into this bill? Can you give us examples of unfair labour practices in collective agreements or bargaining?
Mr. McDermott: There is a whole jurisprudence of unfair labour practices that has been developed by the federal and the provincial labour relations boards. The failure to bargain in good faith is an unfair labour practice which is seen quite frequently.
You may recall the rather tragic events of the Royal Oak dispute some years back in Yellowknife, Northwest Territories. The unfair labour practice that was found there was a refusal to give due process for grievances and dismissals and so on. As to certification occasions, we have seen some of these in the airline industry, where organizing efforts have been resisted, or where, once organized, the problem is one of not rushing, shall we say, to conclude a first collective agreement. It is those kinds of things.
Various terms are applied to unfair labour practices. There is a famous one from Eastern Provincial Airways. The term that was coined was "receding horizon." In the course of bargaining, the union was ready to agree to the employer's terms after a period of work stoppage and then they found that the horizon had been shifted back a little further. What was there on the table before was removed. This was found to be an unfair labour practice.
Each case of unfair labour practice is unique and the board determines the issue based on the facts.
Senator DeWare: I find this bill gives the board a great deal of authority to do pretty well what it wishes.
How many of the organizations that come under this bill now -- banking, transportation -- are not unionized at this point?
Mr. McDermott: Somewhere between 30 per cent and 35 per cent of the Canadian workforce is unionized. The federal figure is closer to 50 per cent.
Senator DeWare: This covers only the federal workforce?
Mr. McDermott: It covers only the federal workers, about 6 per cent of the total workforce. Of the approximately 15 million workers in this country, only about 700,000 of them are under federal jurisdiction, or at least under Part I. The federal public service is not under Part I.
Senator DeWare: You say about 50 per cent are now unionized?
Mr. McDermott: Fifty per cent of the 6 per cent.
Senator DeWare: When we were dealing with Bill C-66, the people that came before the committee were very concerned about replacement workers and, as you know, that is still on the agenda. They did seem to give us the impression at the time that they could accept the recommendation from the report of the Sims Task Force dealing with replacement workers. I believe that came out loud and clear.
Could you explain to me why, if a consensus was reached by the Sims Task Force regarding actual recommendations, you did not use that in this particular amendment to the bill?
Ms Chamberlain: We did. As recommended by the majority of the Sims Task Force, the bill does not include a general prohibition on the use of replacement workers. Indeed, that is one of the changes that has occurred since Bill C-66.
Senator DeWare:That is not the way it reads. It is not interpreted that way. You did not use the wording of the report of the Sims Task Force.
Ms Chamberlain: I will let Mr. McDermott speak to that. I believe that has been changed.
Senator DeWare: Not according to this. Replacement workers are referred to in clause 94.
Mr. McDermott: Senator, it is not a general prohibition, and you will not find in Bill C-19 a general prohibition on the use of replacement workers. You will find a specific prohibition in circumstances where the replacement workers have been used to undermine the representational capacity of a union. In plain language, which legislative drafters perhaps found a little too crude, "union busting" would be the translation of that legal term.
Senator Gigantès: Why is plain language crude?
Mr. McDermott: I did not say it was. I said that perhaps it was found to be. Perhaps "union busting" did not fit, senator.
Senator DeWare: The recommendation of the Sims report is that there should be no general prohibition on the use of replacement workers. That was the first sentence used. Then it refers to the use of displacement workers in a dispute that is demonstrated to be for the purpose of undermining a union's representative capacity.
I find it is ill-defined and that is why we are having trouble with it. How is "demonstrated purpose" defined and what constitutes the undermining of a representational capacity?
My concern is this. Anyone, any union member, can say that the company is actually demonstrating bad faith or using unfair labour practices. My experience -- and yours, too -- is that labour in this country is very well organized and very well prepared. They have a big backing. They will be very active on this industrial relations board made up of half business and half labour. They will say there is an unfair labour practice and that will be it. The board will decide.
As far as I am concerned, there will be no replacement workers used in this country under this bill because of the way this is defined.
Ms Chamberlain: There is no question that labour is very well organized. There is a reason for that in this great country. There were employers who mistreated employees. There were employers who did not behave in an appropriate manner.
Senator DeWare: I agree with you.
Ms Chamberlain: The Government of Canada has a role to play in those cases. On the other side, let us not think wrongly that employers are not well organized, that they do not have large networks and do not have massive power, particularly over their employees. Unions were formed to help employees have a foothold. I can understand and appreciate your concern over the formation of the board, but I think that there will be balance; as you have said, there will be some labour, some management, some people with legal expertise and some with industrial relations expertise.
We are hoping for a balanced board. When you have balance, you have tremendous accountability. I am not afraid of this board at all.
Senator DeWare: You know it has been demonstrated and written right into some of our documentation that labour feels there definitely should never be any replacement workers.
Ms Chamberlain: Management feels that there always should be. That is the other side of it.
Senator DeWare: In this country, companies have actually gone bankrupt because of a strike where the company was not able to function and, therefore, lost its contracts. What did that do? That took away jobs. People lost their jobs and their benefits. Of course, we do not want that to happen.
It is the wording that is the problem. It starts off by referring to the prohibition on any employer or person acting on behalf of an employer to act for the demonstrated purpose of undermining a trade union. If you had, instead, used the wording from the Sims report, you probably would have got away with it. Can you just define "demonstrated purpose"?
Mr. McDermott: "Demonstrated" is one of the words that is added. That is to clarify beyond any doubt that the burden of proof will rest with the complainant. That word was added from Bill C-66.
Senator DeWare: The Sims report refers to where the use of a replacement worker in a dispute is demonstrated to be for the purpose. You did not use that, and yet you say you have it back in but the wording is different.
Mr. McDermott: We have not used exactly the wording in that little box in the Sims report, but we have used the same words, although perhaps in a different order. I do not believe it changes the meaning. FETCO, the main group of federal employers, requested these kinds of changes and expressed their satisfaction with the drafting as it now stands.
We also added "rather than the pursuits of legitimate bargaining objectives" and that wording also comes from the Sims recommendations.
Senator DeWare: You will likely find in our hearings that people are still unhappy with the wording.
Mr. McDermott: Some people have expressed continuing dissatisfaction but I was referring to the main federal employer group, FETCO.
Senator Johnstone: I welcome you here this morning. It is interesting to hear your arguments. I am afraid that I hear a bias towards labour and I am concerned about that. Union membership can be forced on workers whether they like it or not, as I understand Bill C-19. I should not like to see that happen. In a democratic country, they should have the right to decide for themselves.
I take some comfort from the fact that the legislation does not ban replacement workers, but it is all very vague regarding the powers of the labour board. I, too, am concerned about balance. However, unfair practices can happen on both sides, not just on the side of management but on the side of labour, too. I know that this balance is very difficult to achieve but that is the aim of the bill.
I do not know if you want to address these questions any further. They have already been discussed, but I just wanted to mention that these are concerns of mine.
Ms Chamberlain: Thank you. I appreciate hearing your concerns. You are not the first person to voice these concerns; we heard them in the hearings, too. Let me share this with you, though. In all the hearings that I sat through, there was a general, overall support for this bill. Each group that came with a concern about a particular area would talk about that area, but in the same breath they would say that if just that one area were fixed, they would like this bill.
That tells me we have achieved balance, because in each group there was someone opposing. One liked the grain component, one did not; one liked the replacement workers, one did not. There was no offset to the whole bill. I repeat that I feel confident in the composition of the board. I know the people who are opposing this bill ask what will happen if the board rules this way or that way. That is a possibility, but surely we, as legislators, would not want to put in a rule that someone would have to live by that would not work. We are saying that we will put in trained people who are well versed in this area who will be able to evaluate each case.
I think that is the right way to go. I could not imagine doing it any other way. I appreciate that perhaps you think I am biased towards labour. I guess I believe in fairness, senator. I do believe in grassroots. I do believe in the worker, but, as Senator DeWare said, we also have to look at employers who perhaps would go under, who would have fewer jobs to offer. These are all very important issues. I think this bill has addresses many of these concerns. As to replacement workers, we have not banned them but we have left an opening for employers to be able to use them.
In my opinion, it is a very finely tuned piece of legislation. As Mr. McDermott mentioned, FETCO, the group of federal employers, supports this. As you go through your hearings, I hope you will hear the same thing I did -- a general support for the bill. You will hear negative comments from the people whose interests concern each particular component. However, you will also hear how good the bill is overall, and that is an important clue.
Senator Cohen: Ms Chamberlain, you commented that, in the interests of fairness, clause 87.7 of the act requires that grain movement be unaffected during port-related labour disputes; however, many non-grain industries find this preferential treatment unfair. Industries such as pulp and paper and mining are concerned that this bill could distort the traditional dynamics of collective bargaining, prolong strikes, hold up their commodity exports unduly, and perhaps result, in the long run, in costly settlements.
The clause presupposes that grain has special status. Can the department demonstrate to us that grain has this status enshrined in legislation or give us a legal precedent? As well, could you comment on the allegation that the federal government is discriminating against commodities other than grain?
Ms Chamberlain: There is no doubt that this has been a contentious part of the bill. It has been drafted in response to our grain farmers who have been held hostage, quite frankly.
You asked for a specific section. In debate, I referred to grain, and the declarations are found in section 55 of the Canada Grain Act and section 76 of the Canadian Wheat Board Act. As a result of these declarations, grain elevators and flour mills are works for the general advantage of Canada, and their labour relations are subject to Part I of the Canada Labour Code.
You say grain has been singled out for special treatment. Let me address that. We are not the ones who have singled it out for special treatment. It has been the trigger to call Parliament back so that negotiations would not have to take place. This situation must be corrected in some way. We have drafted a piece of legislation to try to do just that.
I draw your attention to the fact that we are saying that we will review this in a year to see how it is working, to determine if it is working the way we think it will. One of the opposition members said, "Well, you are doing that because you do not know if what you are doing is right." I take it a much different way. We are doing it because we think it is responsible, when we put in something like this, to go back and revisit it. We have the minister's word on that, read into Hansard. It is important that we come to the aid of these farmers who are continually held up, and this is an attempt to do exactly that.
Senator Cohen: I am not detracting from the importance of the grain industry, but you may find at the end of a year that you will have the same complaints and demands that historically you have heard from the grain industry now coming from the other industries that you are leaving out.
In view of the fact that a number of the organized labour groups indicated during the public hearings on Bill C-66 that they would voluntarily agree to continue moving grain in the event of a work stoppage, is this provision necessary at all?
Mr. McDermott: This relates really to the Port of Vancouver and the other West Coast ports. The International Longshoremen's & Warehousemen's Union has usually offered to move grain in the event of a work stoppage in the port, either a strike or a lockout, but the British Columbia Maritime Employers Association has refused to let them do so.
Senator Cohen: I wish you luck, but I have my doubts. Given the mail that we have been receiving, I think that you will be hearing from many of these groups at the end of the year.
Ms Chamberlain: Thank you. I appreciate your comments.
Senator Gigantès: One of my general beefs is against language. You have heard me on this before, sir. Language should be clear. It does not need to be officialese. People should be able to understand it without asking a lawyer. This bill reeks of officialese, in my mind.
If the Senate has done a report on the predecessor of this bill, and it is a careful, unanimous report which does not undermine the spirit or purpose of the bill, is it really too much to ask that more attention be paid to the wishes of the upper house? The Senate can actually block something, and has. When you get a unanimous report, it is not a frivolous, partisan document; it is something that the Senate has considered long and carefully and wrote in order to improve the legislation. You act as if we never wrote it. You act as if, if we wrote it, we were probably weak in the head. It will not help you or any other department to take this attitude towards the Senate.
Mr. McDermott: Do you wish us to comment?
The Acting Chairman: You are welcome to comment, if you choose.
Mr. McDermott: Senator, I can assure you that we did not ignore the report at all. The first recommendation of the report was on the replacement worker provision. In our view, we adopted the full wording. It said that you strongly recommend that the Canada Industrial Relations Board, in applying and interpreting, take full cognizance of the text of the majority recommendation of the task force. We have, in fact, included much of that wording in the provision, which was not in Bill C-66, sir. Those additional words that I mentioned have gone in.
The government is putting in certification as a remedy, but the minister has observed the committee's request and will undertake to monitor carefully the full practical application of this provision. There have been some changes also to the off-site worker provision.
Senator Gigantès: When we were discussing section 94 of the act, you said that the wording is different, but that it has the same meaning, more or less.
Mr. McDermott: The differences are extremely slight.
Senator Gigantès: If the differences are extremely slight and the meaning is the same, why not keep the wording the Senate recommended? Why fiddle with it?
Mr. McDermott: I think that the difference is with the recommendation of the task force. We have used the word "demonstrated". The statute says "no employer shall." It is a prohibition, so it starts with what they shall not do. Then it uses the word "demonstrated," which was a word missing previously and which is in the task force recommendation on page 131.
Senator DeWare: It is phrased differently. What does "demonstrated purpose" mean?
Mr. McDermott: "Demonstrated" has been added to clarify the burden of proof. There is no doubt that, with that wording, the burden of proof will lie with the union applying for a ruling on this.
Ms Chamberlain: It strengthens the point, Senator DeWare, that you were making earlier.
Mr. McDermott: Also missing from the previous one were the words "rather than the pursuit of legitimate bargaining objectives," which strengthens the fact that replacement workers can be used but not for the purpose of undermining the union representational capacity. They use the word "representative.". The drafting says "representational," which I gather means pertaining to representation.
The term "representation" is well known in labour relations circles. A union applies for representational rights. It has a duty of fair representation for all members of the bargaining units. It is well-trodden ground in jurisprudence.
Senator Callbeck: Perhaps this was covered before I arrived, because I was late getting here, but this concerns the makeup of the board.
In the bill, the chairman and the vice-chairman are to have experience and expertise in industrial relations. The task force recommended that all members have expertise in this area and, as well, that other criteria be considered, such as region, language, equity, and so on.
This is a very important board with a lot of responsibility. What are the qualifications for people to become members of the board?
Mr. McDermott: The chairman and the vice-chairman are required to have expertise and experience in industrial relations, which would normally mean that they have been either in legal practice or arbitrators -- that is, respected neutrals. Some of them will have been academics; some of them previously will have been engaged in the business, either from the union's side or from management's side, and will have gone into private practice or will have become neutrals. They will be required to have that standard expertise in industrial relations, either from working for many years in that field or from some kind of qualification, for example, either a legal degree or some related academic experience.
Members of the board are not required to have that same experience and expertise. There is a provision that the minister will consult with labour and management to seek the names of people who might be qualified to be appointed as side members -- that is, members representing labour and management. In those circumstances, it is anticipated that they will recommend people who they feel can represent them.
It may be that industrial relations experience and expertise is not always the only characteristic for those people. They will bring to the board experience of the federal industries. You may, for example, get someone who has spent a lifetime in the railway industry and who knows the practices of those industries. That person will bring that practical knowledge to the board, while others will bring more formalized legal expertise or economic expertise, and so on. With the marrying of those qualifications and experiences, the anticipation is that we will find the balance of experience and practical knowledge that is required.
Senator Callbeck: Will the factors that were mentioned in the Sims Task Force report, namely equity, region and language, be considered?
Mr. McDermott: It is something that the Government of Canada does on a regular basis. When making appointments to these kinds of tribunals, they seek representation by region, gender, linguistic capacity, and so on. That is my understanding of the minister's intention when he makes his recommendations to the Governor in Council for appointments to this board.
Senator LeBreton: My question follows up on the points that Senator Cohen raised. The movement of grain appears to be a prime motivator behind this bill. Has the labour department sought a legal opinion from the Department of Justice regarding the special status given to grain in this particular bill? I do not believe it is specifically cited in any other act that is in place currently.
Ms Chamberlain: Mr. McDermott will respond to your question about the Department of Justice, but I wish to say this to you: Grain is the only commodity at this time that is used as a trigger for parliamentary intervention.
Senator Cohen's point that perhaps there will be other ones that will come into play will have to be assessed, but grain is the largest commodity. It is huge. By citing the numbers involved, I told you how we have viewed grain as being significant to Canada.
This diagnosis, which was made by an industrial inquiry commission, was confirmed over and over again by witnesses who appeared before the standing committee and admitted that they have relied on grain, and only grain. Unlike producers of other resource commodities, grain producers have no relationship with West Coast longshore employers and no influence on the longshore bargaining.
Mr. McDermott will respond to your other area of concern.
Mr. McDermott: When drafting a bill, the Department of Justice looks to any possible illegalities or contradictions with other legislation. Certainly none are found in this case.
With respect to the status of grain, grain elevators would not come under federal jurisdiction were it not for the declarations to which Ms Chamberlain referred, as well as the declarations contained in the Canada Grain Act and the Canadian Wheat Board Act. Grain elevators, seed mills, flour mills, and so on, are for the general advantage of Canada. I am not legally trained myself, but I understand the federal government's involvement in grain to be based partly on that and partly on other areas such as the trade and commerce power.
Senator Gigantès: I remember one occasion where three assistant deputy ministers from the Department of Justice interpreted a paragraph in three different ways before the Legal and Constitutional Affairs Committee. Senator Bryden then remarked that he could make a fortune if he resigned from the Senate and returned to private law practice and dealt only with cases involving that paragraph. Please do not put your faith in lawyers.
Senator Johnstone: I have a major concern that is not addressed here, except in grain.
We cannot afford to have labour disputes that prevent us from meeting our export commitments -- not only for grain but for other commodities -- and from having our exports at their destination at a certain time. This is a major concern for me and it should be a major concern for the whole country. I should like to see some thought given to an expansion here, and not just to grain -- although I do not disagree with grain being especially selected.
Senator Cohen: Grain is the key and the motivation behind the whole act. Why, then, is the promotion limited to the movement of grain in ports and not extended to include railways and grain elevators, which are also involved in this whole movement of grain from the farm to the export position?
Ms Chamberlain:, So far, the problem has been at the grain elevators and at the ports. We are trying to address that problem.
Senator Cohen: Do you feel this would alleviate that problem?
Ms Chamberlain: We believe so. From all the hearings that we have had, we understand that it will. However, there is a reason for the mechanism to review this in one year to ensure that we are on the right track.
As a government, we must attempt to do something about this problem. This is a severe problem that is hurting our grain farmers. We believe that we have an onus to try to fix it. That is our concern.
Senator Johnstone: As a country, we have commitments to deliver our products on time. We cannot exist if we do not do that because some of those countries will go elsewhere for their product. Why has this not been included in Bill C-19? I think it should be addressed.
Mr. McDermott: Bill C-19 does not remove the right to strike or lockout from the ports or from the grain handling sector. It requires a relatively small number of longshore workers to continue the services to grain vessels in the event of a work stoppage by strike or lockout in the ports. It would apply to related industries such as tow boats, et cetera. Its principal application would be to the West Coast ports because that is where the issue was found to be of some significance.
In the last 25 years, there have been approximately nine work stoppages in the West Coast ports, seven of which required special parliamentary legislation to terminate. The last time that was done, the Minister of Labour of the day established an industrial inquiry commission which identified grain as having been used as the trigger to get Parliament into the act. There was no unanimity among the parties on the special measures recommended by that body. The government looked at the issue and referred it to the Sims Task Force which made a suggestion in line with what is in the bill. That enables the longshorepeople and the grain handlers -- both the employers and the unions -- to retain their full collective bargaining rights. However, it means that grain will not be used to trigger parliamentary action in a longshore strike or work stoppage in the future. To have applied that to all other commodities going through that port would have effectively removed full collective bargaining rights, including the right to engage in a legal work stoppage.
Senator Kinsella: I should like to bring more specificity to our focus on clause 46 of the bill, on page 35, regarding the matter of certification contrary to the will expressed by a majority of the members of an association of employees. This is the most serious civil libertarian issue in the bill, in my judgment. I want to ensure that we fully understand exactly what we will be doing.
What is the problem that one is seeking to resolve? What is the ailment that one is seeking to cure?
Ms Chamberlain: Are you speaking of remedial certification?
Senator Kinsella: I am speaking of clause 46 which gives the new Canada Industrial Relations Board the power to certify an exclusive bargaining agent for a group of employees contrary to the expressed will of those employees.
Ms Chamberlain: I tried to explain this once. I will try again. There are circumstances where employers do not wish to have a union formed at any cost. There are circumstances in which employees can be intimidated. They can be told that they could lose their jobs or that union bosses were fired. They can suddenly be put on night shift rather than day shift. They can be given work which they never had to do before which does not employ the skills they were trained to use.
Senator Kinsella: We understand the ailment. The question is what would be the best way of counteracting that unacceptable, unfair labour practice? What was on the menu of options which included this remedy?
Ms Chamberlain: Perhaps Mr. McDermott can address the options, but I will speak to the cure, as we see it.
Many people have endured unfair treatment in the workplace. Some say that a second, secret ballot will fix everything. It is naive to suggest that when people have been threatened, intimidated, coerced and scared, a second ballot will resolve the problem.
In reality, if an employer uses intimidation to prevent the formation of a union, the only true recourse is to give certification, because that is the very thing they have used intimidation to avoid. Otherwise, you are condoning the use of intimidation. I truly believe that we cannot allow that to happen in Canada.
Mr. McDermott: The menu still exists, because the board may order a vote in any circumstance. The way the Canada Labour Code is structured, if a union applicant comes before the board with at least 35 per cent but less than 50 per cent of the members of the bargaining unit having signed for a union, the board must order a vote. If over 50 per cent have signed, the board has discretion to certify it without a vote. This is in common with the situation in about five provinces.
People say that sounds anti-democratic, but you will see that it is not when you understand that the people have signed expressing their wish, and have usually paid a fee. In most circumstances, they are not in competition with another union at that point. Indeed, if there are two unions applying for certification, the board invariably orders a vote between the two. However, in most cases, it is one union coming in with indications from employees that they wish to be represented and the board has discretion to grant that without a vote.
In those circumstances where there are any doubts, the board has the reserve authority to order a vote in any circumstance, and that still exists. Bill C-19 would not change that in any way whatsoever.
Five provinces, including Ontario, which has an amendment going through the legislature at the moment, have remedial certification measures in their statutes. They are British Columbia, Ontario, Manitoba, Nova Scotia and New Brunswick.
I have heard that Ontario has almost 1,000 cases a year before the Ontario Labour Relations Board relating to certification matters. Over the last eight years, they have invoked the remedial certification provision less than five times per year. That provision is invoked extremely rarely and only in the most serious circumstance.
Clause 46, which amends section 99, is a discretionary one. It says the board "may," not "shall." The board would determine, based on the circumstances of a case, whether it was appropriate to certify without evidence of majority support, if it concluded that unfair labour practices had made it impossible to determine the true wishes of the employees and that the union, but for those unfair labour practices, would have had majority support.
Senator Kinsella: To build on the questions of Senator Callbeck with regard to the composition of the board, from my vantage point, discretionary power is an awesome power when one is going to take action contrary to the will of the people as expressed in a secret ballot.
As you stated, the bill provides that the chair and the vice-chair must have experience and expertise in the field of industrial relations. However, there is no standard for the qualifications of the other members. How would one be sure that they have any sense of the rules of natural justice?
Bill S-5, to amend the Human Rights Act, dealt with the appointment of members to the Canadian Human Rights Tribunal, which is an administrative tribunal, as is the proposed Canada Industrial Relations Board. Are you aware of the qualifications required of the members of the Canadian Human Rights Tribunal?
Mr. McDermott: I believe there is quite an emphasis on legal qualifications.
Senator Kinsella: They had to be a member of a bar, which some of us questioned, as we thought that other people have great experience in natural justice and experience and expertise in human rights. However, the government argued convincingly that the members of the tribunal must be members of a bar, given the discretionary power the tribunal had. If the Canada Industrial Relations Board were to be given the power to impose this remedy, which is perhaps the most extreme remedy in the plethora of remedies available in industrial relations, one would have to ensure that the panel be experienced and tuned into the principles of administrative law and natural justice, as well as industrial relations. Do you see the concern?
Mr. McDermott: Very much so, because the tribunal will be subject to review on precisely the grounds of the exercise of natural justice. The current board, for example, has a number of lawyers and a number of non-lawyers. Some vice-chairs over the years have not been legally trained but have been very successful. They also have expert legal counsel on staff at the board, so I think they will be very conscious of natural justice. As I say, it is one of the grounds on which they can be judicially reviewed if they fail to observe it.
Senator Gigantès: I am talking about what both Senator Kinsella and Senator Johnstone said. I know of the specific case of a taxi company. A driver who did not want the union to be certified boasted to me about the means taken to keep it from being certified. He said that those taxi drivers who wanted the union were given crap jobs and some were fined. What Ms Chamberlain has said does happen.
I think it is important that some discretionary power exist somewhere to prevent the intimidation of people who generally do not have much in the way of resources. For example, a taxi driver pays $525 a week for the right to use a taxi. The driver does not own the taxi or the licence. The driver can be intimidated, thrown out, or given a car that does not work. There must be some protection. In that particular case, the certification failed because all the taxi drivers who wanted the union were fired.
Senator Maheu: I have a quick comment on unions. In Quebec, all we have to do is think about McDonald's. The union got in and closed the shop, period. It is a little disconcerting.
Senator Gigantès: One shop.
Senator Maheu: The union was legally voted in and the company closed that location. I believe what Ms Chamberlain had to say is indeed very true.
I would like to go on to another issue. When we were studying Bill C-66 and when I was questioned in the chamber on Bill C-19, it was suggested that there is widespread opposition to the provision allowing the board to modify seniority provisions. I am speaking specifically of the airlines. Perhaps we should look at Bill C-19, which would allow the board to make determinations with respect to seniority and other issues where there is a structuring of bargaining units and where the parties themselves are unable to agree.
Can you or Mr. McDermott tell me if anyone other than the representatives of Air Canada raised objections to this provision? If I remember from Bill C-66, only one group, the Air Canada Pilots Association, opposed this.
Ms Chamberlain: Yes, senator. Only one group opposed this clause through all the hearings, and that was Air Canada.
I think we have to be very clear about what this is. Again, there is discretion in the board. They are afraid that the board could rule at some point to make a determination in this area. However, we have to understand that the purpose of the board is not to intervene. The board is to intervene only as a last resort and only if there is an unfair labour practice or if something has gone awry.
One of my constituents phoned an Air Canada pilot about this particular clause. He was very upset and talked to me for a while about this. He said: "Brenda, we are prepared to fight for 50 years if we have to on this issue. We do not want settlement, and we will go to the wall for 50 years."
We have a responsibility as a government to ensure that people do not fight for 50 years. We must ensure that there is a mechanism in place to allow a determination to come down eventually. That is all this component is about. It does not say this would happen. It allows the board the discretion to come in eventually and to help find a dispute mechanism. They may very well never rule on this, but there would be the ability to find a dispute settlement mechanism. I think that is very important. I do not think we can turn our backs on this area and simply say they can fight for 50 years.
Mr. McDermott: I agree that we have only heard from the Air Canada Pilots Association on this issue.
When Bill C-66 first appeared in the House of Commons, it contained slightly different wording. The federal employers expressed concern that the board would be able to get into too many things, such as changes to collective agreements in certain circumstances. The wording was changed to give examples of the kinds of things that the board could amend when bargaining units were fused and different collective agreements had to be reconciled and probably blended into one. The most obvious examples were termination dates of a collective agreement and such matters as seniority lists. We now have people with different seniority lists who are members of the same bargaining unit. FETCO, the federal employers group that participated in the consultations on the bill, expressed some satisfaction that this change had been made at the committee stage as the result of an amendment introduced by the government.
Senator Maheu: On the other hand, someone told me that a pilot flying DC-8s, in order to meet the seniority agreement, might bypass someone flying 747s. That was a bothersome remark. I do not think it could ever happen. What is the danger of something like that? I think it is ridiculous.
Mr. McDermott: I think that Transport Canada regulations, as well as company policy, would prevent that. One can only fly the equipment for which one is qualified. However, the seniority provision would give one access, perhaps, to apply and then be trained accordingly.
Incidentally, I would think a 747 pilot changing to a Dash-8 going to Toronto Island might have some problems, too, getting down onto that little landing strip.
The Acting Chairman: On behalf of the committee, I should like to thank our witnesses this morning. We appreciate your testimony.
The committee adjourned.