Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 15 - Evidence - June 12, 1998
OTTAWA, Friday, June 12, 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 2:00 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Colleagues, this is our third meeting in pursuance of our mandate to amend Bill C-19, to amend the Canada Labour Code (Part 1) and the Corporations and Labour Unions Returns Act, and to make consequential amendments to other acts.
We have four groups testifying before us today. Each of them will have 30 minutes for a brief and a succinct opening statement, and a dialogue with members of the committee.
Our first witnesses are from the Western Grain Elevator Association.
Mr. Ed H. Guest, Executive Director Western Grain Elevator Association: Honourable senators, I apologize that the brief which we have given to the clerk is in English only. We had a short time in which to put things together. It is not an excuse, but it is an apology.
The Chairman: I acknowledge that. Please proceed.
Mr. Guest: Our association has been in existence since the late 1800s. We represent the 10 grain companies that own 99 per cent of the primary elevators in Western Canada which supply grain to the West Coast. We own 100 per cent of the terminals on the West Coast which move that grain to boats for export to our various customers around the world.
In 1957, a subgroup called the British Columbia Terminal Elevator Operators Association was formed as part of the Western Grain Elevators Association. They do collective bargaining on behalf of our companies that operate in Vancouver.
Our association supports amendments to the code which will ensure that disputes involving industries other than the grain industry do not impact the flow of grain. By and large, these amendments are reflected in clause 87.7 of the proposed code, which provides for the maintenance of services to grain vessels during the grain disputes. We will limit our remarks to that part of the legislation.
The importance of the grain industry to the country is well recognized. Grain represents some 20 per cent of movement through West Coast ports, equalling some $3.5 billion to $4.5 billion through those ports. The Canada Labour Code applies to grain, unlike other commodities under the Constitution Act, because grain elevators have been deemed to be for the general advantage of Canada, and they have a different onus on them than is on any other commodity.
Problems arise when disputes in other industries affect the flow of grain. Such disputes have nothing to do with the worldwide competitive forces affecting the grain industry, and cannot be solved by the economic forces at play between parties within the grain industry. Instead, disputes which are external to the grain industry can lead to grain being used, as others have said, as a hostage.
Some three years ago, the Industrial Inquiry Commission into western ports found that the longshore industry had used its capacity to halt grain exports as a type of ace in the hole. They stated that it appeared that collective bargaining in this industry has been reduced to a ritual more akin to a poker game, with the ace in the hole being the capacity to halt grain exports. When this card is played, it almost guarantees speedy intervention by Parliament. This reduces the risk of the parties having to face the hardships of a prolonged work stoppage. All the while, they do their best to manoeuvre their tactical positions to become prepared for the inevitable third party intervention. Collective bargaining, per se, no longer exists.
The commission found that grain exports were affected on numerous occasions, due to the inability of parties on the longshore to arrive at a collective agreement. In the last 10 years, there have been four work stoppages in the longshore industry, three of which were ended by federal intervention. We note that the proposed section 87.7 applies only to the longshore.
There are other parts of the system where negotiations do work, including in our terminals, where there are economic balances on both sides of the fence. We have heard some people suggest that this clause covers all grain unions. It does not. It deals with the longshore, and this is a problem that has been identified as one upon which collective negotiations currently do not work.
Our members submit that it is particularly important that disputes between parties in other industries be kept to those parties, and that those disputes not affect the grain industry. To allow the grain industry to become a hostage in disputes involving other industries causes severe detriment to Canada's competitiveness and reliability as a supplier of grain in a global economy.
We submit that clause 87.7 will force meaningful negotiations, which is the purpose of the Canada Labour Code. Of greater importance for Canada, in maintaining customers in this climate of increased international competitiveness, is the ability to demonstrate that our country is a reliable supplier of grain. Indeed, the major ongoing threat to the grain industry is the concern of customers with respect to the reliability of Canada as a supplier.
Many reports reviewing Canadian grain customers' concerns have expressed concern about West Coast performance. Concerns about Canada's reliability have been also been raised to the highest levels of government. For example, concerns were communicated to our Prime Minister during his 1995 visit to major Latin American countries. Similarly, China expressed its growing concern about the reliability of delivery with the Minister of Agriculture in 1994, and again with the Prime Minister in 1995.
After hearing the submissions from the interested parties, the Industrial Inquiry Commission decided that the goal of isolating grain handling from other disputes was a goal that ought to be accomplished. This goal has been adopted in the legislation.
To achieve this goal, the legislation seeks to prevent the longshore industry from using grain as the ace in the hole. Thus, in longshoring disputes, the services which are normally provided to ensure the tie-up, let-go and loading of grain vessels must be maintained.
It is respectfully submitted that it makes sense to treat grain in this fashion for a number of reasons, including grain being used as an ace in the hole. Along this line, the Industrial Inquiry Commission also found that bargaining in the longshore industry had been adversely affected by its use of grain as a hostage. The grain industry has been declared to be to the general advantage of Canada under the Constitution Act. The fact of the matter is that grain has been recognized as warranting different legislation, legislation which has previously been enacted.
In passing the Canada Grain Act, the Canadian Wheat Board Act, and the bill which was enacted yesterday, both the House of Commons and the Senate have recognized that the grain industry is to the general advantage of Canada. In this respect, treating grain differently than other commodities in legislation is not a change from previous acts, but is consistent with the treatment of grain in existing legislation.
After conducting thorough investigations into the issues, the Industrial Inquiry Commission into industrial relations at West Coast ports and the Sims Task Force made the decision that grain handling ought to be isolated from other disputes.
This proposed legislation simply seeks to meet a need which was found to exist with respect to the grain industry. The purpose of this legislation is to have a labour negotiation environment which encourages balanced negotiations between employer and employee, thus ensuring a situation where agreement is reached in the vast majority of contract renewals. The legislation simply takes grain out of the bargaining equation for both sides.
In this respect, the approach adopted in clause 87.7 is a compromise approach which was referred to by the Sims Task Force. Moreover, the government has said that it will monitor the workings of this measure, and its effectiveness in the future. It should also be noted that by taking grain out of the equation for disputes in other industries, the proposed legislation will help to promote collective bargaining in those other industries.
Lastly, it must not be forgotten that section 87.7 represents a commitment which has already been made by Canada to other nations. For example, Mr. Hehn, Chief Commissioner of the Canadian Wheat Board, recently had an opportunity to discuss the proposed labour code changes with the Japanese, who are one of our premier customers. The Japanese food agency, was very positive about this provision, as were end users in Japan. If Canada did not follow through with this legislation, after holding it out to our trading partners, it would send a signal to other nations that Canada was not concerned about their interests in having a reliable supplier of food, and it would certainly damage Canada's international reputation.
We have sent the right message to Canada's food buyers. If the momentum for this initiative falters, we are concerned that our customers will conclude that we are not concerned, and will look elsewhere for more and more of their supplies.
We urge you to push the bill forward as soon as possible to ensure that this legislation becomes law.
Senator Kinsella: My first question is just a general question. I agree with the arguments that you have made vis-à-vis the application of section 87.7 to grain at the port side. Should that kind of provision apply also to the trains and to the trucking industry? If the idea is to ensure the movement of grain, it has to get to the port from the elevators. Have you talked about that among yourselves?
Mr. Guest: We have not sat down and analyzed whether it should or should not be put in place for any other industries. The grain situation on the West Coast has been studied by two very prominent groups, and we were involved, as were all of the people opposing clause 87.7. I think we would have to go through a similar kind of process with railways and the other players in that part of the transportation industry. The way this was done, everyone got to air their views, so we were able to understand what was going on and why. We have not done that with the railways.
Mr. Murdoch MacKay, Managing Director, Terminal Services Division, United Grain Growers Ltd., Western Grain Elevator Association: The association believes in free collective bargaining. I believe that the railways and their unions have free collective bargaining. In the case of the longshore, we as grain companies have no impact, and no involvement in the negotiations. We are the hostage in this. It is the impression, I think, of everyone who has been involved in the investigation, that it is used as the ace in the hole. We do not believe that the other industries, such as the railways, use grain as a hostage.
Senator Kinsella: This is because there are other commodities.
Mr. MacKay: Yes, and we believe that there is free collective bargaining, and so grain cannot be used in that way.
Senator Kinsella: There are those who are uncomfortable with this kind of a provision, and who argue that, if there is a work stoppage at the port, the longshore people will be rotated to work on the handling of the grain, and, in a sense, that would subsidize their strike pay, and might mitigate against an early resolution of the dispute. That argument was advanced before this committee. Have you considered that, and what is your reply to it, or your observation on it?
Mr. MacKay: In most of the previous disputes, the longshore workers have offered to work grain, and grain alone. Ultimately, the disputes ended up with lockouts by the employers' association. In this case, the union, I believe, recognizes the importance of grain. As to the argument that we are going to subsidize the other members, that argument could be made about other labour disputes. For example, when there is a nurses' strike, you will find that there are nurses who do work while the others are on strike. That type of situation is quite common.
Senator Kinsella: If your principal concern is to ensure the movement of grain to the ultimate destinations through the port, and that it not be held hostage, as has occurred in the past, this clause would achieve that objective for you. Would you have any opposition to the minister or the board, being given discretionary authority to add other commodities if the circumstances were justified?
Mr. Guest: Our purpose for wanting to remove grain from the equation is two-fold, but principally it is based on our desire to continue to deal with the markets on a cash basis, if you will, because there are economic forces at play. However, we do strongly believe in collective bargaining. We believe if grain is taken out, the other commodities will be subject to proper collective bargaining. In the case of farmers, there are between 100,000 and 140,000 permit book holders, or 140,000 individual little companies out there. In the case of the fellows on the West Coast, most of the people doing the bargaining are in large companies on the management side of the fence, and they can look after their own economic interests much better than the farmers can.
Senator Fitzpatrick: My questions are in regard to buyers of other commodities. I appreciate what you said with respect to the reliability of the supply of grain. I would presume that buyers of other commodities would look for that same reliability of supply. There may be some who would argue that providing this exemption to the movement of grain could extend the disruption of any negotiations, and thus extend the disruption of the supply of other commodities.
I represent British Columbia, and there are lots of other commodities which are being produced in British Columbia or shipped from British Columbia. Some people feel that this is a form of discrimination against the other industries. I am wondering if your view is that the need for this exemption for grain outweighs these other considerations.
Mr. MacKay: The important thing to remember is that this issue has been studied by individuals who are experts in the labour field. They have looked at the situation on the West Coast. I am talking about the Industrial Inquiry Commission report by Mr. Grey Owl and Mr. Jamieson, and followed by Mr. Sims.
These gentlemen did a lot of study, and talked to people involved in the longshore industry and in other industries. The fact that negotiations between the longshore and the employers' association are not real negotiations, was constantly brought to their attention. In the negotiations, both parties are aware of what the grain can do. If grain is threatened, both sides know what will happen. There will be federal intervention, and back-to-work legislation.
Their opinion is that if you take grain out of the negotiations, thereby forcing the employers' association and the longshore workers to negotiate, you will get fruitful and meaningful negotiations, which is what this bill is attempting to accomplish. I think the country wants this to happen. It will bring forth meaningful negotiations in an effort to find a resolution, rather than having two parties constantly maneuvering so as to be in a proper position when the government intervenes and sends in a mediator or arbitrator to solve the problem. If grain is out, you will see these negotiations progress into a more meaningful situation than we see today. I do not think that there will be this problem down the road for other commodities.
Senator Fitzpatrick: I appreciate what you said about studies that have been conducted, but is it your understanding that other industries producing other commodities are of this view?
Mr. Guest: No, they are not. They will be in the room today to tell you that, and they have been in this room on other days to tell you exactly the same thing.
I would take their position if I were sitting in their chair, because I would like the best case scenario for me. Whomever I am working for, I want the best case scenario.
More expert people than I have looked at this, people like Jamieson and Sims. They have all come to the conclusion that proposed section 87.7 is the best compromise that can be made. In fact, their initial reaction was to kick the longshore folks off of the green boats, period. The compromise was to not let them strike at grain.
Mr. MacKay: The initial viewpoint was that the longshore sector should be taken out of grain; that is should not be involved in grain at all. We, the grain industry, said that we do not have to go through that type of scenario. It could be a very difficult situation, because the longshore union believes that this is their job, and they are entitled to do it.
I believe violence would occur if we, the grain industry, decided to set up our own longshore companies to load the vessels, or to have our own union load those vessels. You would see some violence on the West Coast. We do not want to take jobs away from those involved in the longshore industry.
We agreed with the Industrial Inquiry Commission that this compromise was much more satisfactory than us setting up a longshore union to load vessels, and then encountering difficulties. We would then probably come to the Minister of Labour looking for some help from him to get our own longshore company set up to load those vessels. We agreed with this compromise position, and we wanted to proceed with it.
Senator Maheu: I am slowly learning a lot about grain. I come from Quebec, and I must admit that I did not know anything about grain.
I heard previous witnesses state that Canada does not have the same grain storage mechanism as the Americans do. Can you explain the time frame for grain spoilage and the impact of strikes and lockouts to us? I feel that every time the grain movers go on strike, the government must intervene. It is excessive, undue pressure on the government. If we were not being reported, I would use another term as to what goes on when the grain is affected. Grain is always used in back-to-work legislation. Can you elaborate on the spoilage risk and, consequently, on your exports?
Mr. MacKay: I do not believe the government is involved in intervention with respect to strikes and lockouts in the grain industry because of the spoilage issue. It is because of the impact it has on the 100,000 farmers in Western Canada.
A strike stops the movement of grain, be it at the port or wherever. It takes away an individual farmer's opportunity to grow grain, to deliver that grain to the elevator, and to be paid for it. The farmers of Western Canada have lost their money-earning power, and this is the only way they feel that they have a recourse. That is why the grain industry is under the Canada Labour Code, and why it is declared to be an essential service of Canada. It is because of the need to protect those 100,000 farmers in Western Canada. Their only way to make money is to deliver grain to the country elevator. A strike or lockout stops the process. The country elevators fill up, and the farmers have no way to continue to deliver that grain. We have to keep the grain flowing at all times.
Mr. Guest: The other side of that is the market side. People who are buying grain are not buying something they can do without; they are buying food. If they lose their supply of food from Canada, they find a supply somewhere else. If that other supply is reliable, they will keep going there. You do not go to a grocery store that has nothing on the shelves. You go to a grocery store with something on the shelves. Grain is a staple. It is as simple as that.
Senator Chalifoux: I am concerned about marketing. You answered my question in part. When there is a strike, how does that affect the marketing of grain and the contracts that have been made by the Canadian Wheat Board?
Mr. MacKay: When there is a strike, the board can declare force majeure. They may have a contract sold on a June 1-30 position. If they can declare force majeure, it allows them to not have any penalties. However, once the strike is over, they have to deliver all of that grain. If the strike was 10 days long, their contract would be deferred for another 10 days.
Mr. Guest: As you may have heard, a fellow by the name of Mr. Estey is doing a review. A number of years before that, Mr. Hall did a review. None of the reports have the capacity to double what they are currently handling. In other words, if 10 days are lost, they are truly lost.
The Chairman: We must close on that note. Thank you, witnesses.
Our next witness is Mr. Gerald D. Chipeur.
Mr. Chipeur, I know you have appeared at other committees at different times. Indeed, you appeared before the House of Commons committee on this bill. What I forgot to ask you and must ask you now is whether you are representing any clients today. If so, who are they?
Mr. Gerald D. Chipeur, Barrister and Solicitor, Milner Fenerty, Barristers and Solicitors, Calgary: Yes, I am. You have been provided with a list of the clients whom I represent here. It is the same list that would have been provided to the House of Commons committee. I am here this afternoon on behalf of the Alberta Chamber of Commerce, the Calgary Chamber of Commerce, the Edmonton Chamber of Commerce, Echo Bay Mines Ltd. of Edmonton, Syncrude Canada Ltd., of Fort McMurray, and Diavik Diamond Mines Inc., of Yellowknife.
The Chairman: Please proceed, then.
Mr. Chipeur: You will be able to read the material that I have provided to you in more detail this weekend. I will now take you through the three points that I would like to leave with you this afternoon. I will then entertain questions on any of those points, or on any other issue that arises in the context of Bill C-19.
The are three areas of concern. The first is the question of the democracy principle which has always governed labour relations in Canada. Bill C-19 strikes at the very heart of that principle of democracy, by giving the proposed industrial relations board the power to override the wishes of a majority of employees who have actually voted not to certify a trade union. It also allows the Labour Board to certify a trade union without a majority vote.
We have some significant constitutional concerns with that principle, in addition to the general political principles involved. It would be as though members of Parliament or those who wanted to be members of Parliament were able to go door-to-door and collect cards, and whoever collected the most cards would be declared the victor. I suspect that everyone would be able to have a majority support in that situation, knowing what I do about human nature.
More importantly, it would be as if the victor in an electoral contest could have the loser come to an independent tribunal and say, "I do not think that the vote we just had properly reflects what the people of that constituency thought. You were not there, but I want you to know what was in the minds of the voters and we want you to substitute your views for the minds and views of the voter."
One would say, "It is a terrible affront to parties in Canada to say that an independent party could come in and override their views." Exactly the same thing is being proposed in Bill C-19. The Labour Board can come in, and say, "Employees, you obviously did not know what you were doing. We do not have any respect for your ability to make a decision. We will override your decision, and we will impose an association upon you." That is where the Charter argument arises.
The Charter guarantees freedom of association. It also guarantees freedom not to associate. In the labour field, we have always allowed democracy to rule and, if the majority of employees want to associate with a trade union, we allow that bargaining unit to associate with a trade union. If the majority choose not to do so, then we do not impose that upon them. The Labour Board will now be in a position to require an employee to join against his or her will, and even against the will of the majority. There are many examples in both Ontario and British Columbia where this power has been abused by the labour boards in those provinces -- so much so that last week the Ontario government introduced legislation to repeal this kind of provision in Ontario.
I will not go in greater detail on that, but the case law from the Supreme Court of Canada is clear. I wish to refer you to page 11 of a 21-page background brief on the subject of the constitutionality of this provision. I will not bore you with the Constitutional arguments unless I get specific questions on this subject, but on page 11 we go into great detail discussing what the Supreme Court of Canada said about freedom of association. There is no doubt that the Supreme Court of Canada would strike down this kind of provision if it were brought before the court.
The second issue which we would like to raise with this committee concerns economic freedom. This problem was highlighted by this same Senate committee last year, when Bill C-66 was before it. This committee said that there is no reason why an employer should not continue to carry on business, notwithstanding a strike by that employer's employees. That was a legitimate business decision by an employer.
This bill would allow the labour board to say, "No; that is not a legitimate option. We will take away the ability to hire replacement workers when your regular workers go out on strike away from you." The implications for small businesses in this area are dramatic, particularly in Northern Canada where this bill will govern all employers, not just the major transportation and communication companies in this country.
That is one of the major concerns that we have on behalf of northern employers. If a single employer does not have the ability to transfer business across the country and into those areas where no strike is going on, those employers will be put in a position of either choosing to give into the demands of the trade union, or going into bankruptcy and going out of business. It is as stark as that.
Finally, on the subject of international competitiveness, there are a number of technical problems with this bill that require further study, because they have an impact that is only now coming to light. This issue just came to light between the time that we testified in the House of Commons and today. In our discussion with industry, we determined that the rules in Canada will now be different than they are in the United States when it comes to the ability of the minister to hold back a conciliator's report that would then lead to job action by one side or the other.
In the past, both in the United States and in Canada, in mainly the airline and railway fields, the governor was able to hold back reports so that the parties could discuss the issue amongst themselves and come to a resolution. As long as the parties were making progress, there was a discretion not to trip the wire and force a showdown.
Unfortunately, the Canadian situation under Bill C-19 will now change and there will only be an 81-day window. After that 81 days, the report must go out. Whatever the consequences of that action will be, they will be felt by the industry. The concern is that we will lose business south of the border, because when those conflicts are triggered in that type of situation, namely, where there have been strikes in the past, the business has gone south of the border.
I will now highlight a number of good reasons to further study Bill C-19 and to consider carefully the amendments that we have highlighted.
First, three years have elapsed and a general election has occurred since, "Seeking a Balance," the report upon which this bill is based, was penned. That is a lifetime in politics. The Senate committee was not consulted -- neither when Bill C-66 was considered, nor when Bill C-19 was considered. Neither this committee nor any other parliamentary committee was consulted in order to give input on what should be contained in the bill and on some of the issues. There was no give and take. It was just, "Here it is. Take it or leave it."
Second, the Senate committee recommended three changes last time. Only one was grudgingly made, and that was only in the house committee. The other two changes have been refused by the minister.
Third, there is no consensus among industry and labour. This bill reflects not a balance but an imbalance, and the consequences for the Canadian economy are significant.
Senator Beaudoin: I understand, Mr. Chairman, that next week we will have the advantage of looking at the issue of independence of the judiciary. Some people have raised that point. The Bâtonnier of Quebec has expressed his concern about that. I will restrict myself today to the issue of freedom of association.
If I understand your reasoning, it is that the situation as it currently exists is not contrary to the Charter of Rights and Freedoms, but that there may be some problem with the application of freedom of association if this bill is adopted.
Is that because the vote is not secret, or is it because there is no good way of knowing exactly where the majority is among the employees?
Mr. Chipeur: Both are true. There are two problems with this bill on the subject of the majority vote. One is that currently, and in the future, one may use cards rather than a majority vote to determine certification. That is a problematic process, and we would like to see changes there. It exists now, and it will remain a problem if it is not amended.
The new problem that arises is in respect to the power that is given to the board to force certification, even when a majority of employees have expressly cast their votes not to be certified. There are many cases in Ontario and British Columbia where labour boards, given that power, have exercised it. They say that it will only be used when there is an unfair labour practice. We say that that is true but, if there is an unfair labour practice, let the punishment fit the crime. If it is the employer that has violated the law, let the employer be penalized. Let an injunction flow; let damages flow; let penalties be imposed on the employer, but simply because the employer acted illegally, do not take away the employees' freedom to make an informed decision on whether or not they will be in association with a particular trade union.
We say that the principles enunciated in the Supreme Court of Canada's decisions in the Professional Institute of the Public Service of Canada and in Lavigne make it very clear that there is a freedom to associate and a freedom not to associate, and that the freedom not to associate can only be overridden for good reason.
Certainly, a majority of employees voting to associate is good reason, because that brings in regularity to labour relations. It allows for employees and employers to generally resolve disputes collectively. However, when a minority position is imposed upon a majority, the very basis for overriding the interests of those individual employees and forcing them to associate no longer exists.
So the arguments in those two Supreme Court of Canada cases which allowed the invocation of section 1 and the justification in a free and democratic society would not exist under Bill C-19, because the only basis for taking away the employees' freedom of association would be not something the employee did, but something the employer did which had nothing to do with the employee. There is no connection and, as you will recall, under the section 1 test there must be a rational connection between the limit on a freedom and the right in question.
We strongly suggest that there is a Charter problem here. It is a problem which currently exists in Ontario and British Columbia. All you need do is look at what is happening in those jurisdictions to see how the rights of the majority of employees have been taken away.
This is particularly important in the North -- where our clients are from -- because a minority of employees from the South come up and join the northern employees for a period of time in the summer, for example. It is possible, with this kind of law, for that minority of employees from the South to impose their trade union on the majority of Northerners who are there permanently.
That will not lead to peaceful labour relations, and it will not lead to employees having their wishes fulfilled.
[Translation]
Senator Maheu: Mr. Chipeur, you stated in your brief to the House of Commons committee that only two provinces award similar powers to their boards. According to my sources, there are in fact five provinces that do so: Ontario, British Columbia, Manitoba, New Brunswick and Nova Scotia.
In your brief, you refer to a recent ruling by the British Columbia Labour Relations Board in a case involving Wal-Mart. You found this to be a good example of the inappropriate use of this power. As it happens, the board did not use its power to overturn the results of a vote. In fact, the union had sought certification without the minimum support required to hold a vote. The employer had been charged with resorting to unfair labour practices.
In point of fact, the union failed to receive the support of the majority of the employees and thus was not certified. The ruling in the Wal-Mart case is the only one of which I am aware. The Ontario board has had this power since 1975 and here again, a court ruling cannot be construed as evidence of widespread abuse.
[English]
Mr. Chipeur: The British Columbia cases that we would be able to take you through are exactly the same as the Ontario problem. The Wal-Mart problem in British Columbia is one example, but the Wal-Mart example which I cited in my initial comments was Wal-Mart in Ontario.
In the Wal-Mart Ontario case, two-thirds of the employees clearly voted not to certify. The unfair labour practice was that the employer said, "I do not want to respond to your letter. I do not want to tell you what I am going to do if a union is brought in." They did that on the advice of counsel. To a certain extent, their lawyers got them into trouble by telling them, "Do not talk." It is almost like a freedom of speech issue. Nonetheless, what happened after that is very telling.
The employer and the union negotiated a collective agreement. They then put it to the employees to vote on. Those employees rejected the collective agreement. By doing that, they maintained the status quo, which was a direct relationship, as well as the current employment conditions between the employer and the employees. They kept the union out of the equation.
That illustrates that this kind of provision is completely ineffective when there is a group of employees who understand labour law, and who understand how to stand up to that kind of decision. They were telling the Labour Board that they knew full well what was in their best interests, and they would not have the board decide that for them. That is exactly what they said when they rejected the collective agreement, notwithstanding the Labour Board's position.
Senator Maheu: I still do not consider this one decision widespread evidence of abuse.
Mr. Chipeur: All of the decisions which have come out of British Columbia have been decisions in which certification has occurred on mere pretense. I suggest there is no connection with the evidence of an impact on the employers' supposed unfair labour practices. It was a board which believed it best to certify in this situation, and they were going to certify, notwithstanding what the employees themselves wanted or believed.
Senator Maheu: Are you speaking of B.C. now?
Mr. Chipeur: Yes.
Senator Maheu: I understood that the union had applied for certification without the minimum support required to obtain a vote.
Mr. Chipeur: That is right. They then lost the vote, which illustrates the fact that we have a labour board which says that it thinks that the employees did not know what they were doing, and that it knows better than the employees. In this case we again have employees telling the board that it is wrong, and that they do not want to certify.
Senator Maheu: That is because they did not have the votes required to be certified, if the information I have is correct.
Mr. Chipeur: That is right.
Senator Maheu: They were not given certification because they did not have majority support, and that was the board decision.
Mr. Chipeur: That is right. However, the board's initial decision was to order the vote, in spite of the fact that the necessary initial support with cards was lacking.
Senator LeBreton: Senator Maheu said there are five provinces with this provision, while the witness has said there are two. Which is it?
Mr. Chipeur: I will have to go back and look at the laws again. It is my understanding that there are two. It may be that other provinces have amended their legislation since I last looked at the law. It may be five. I will not argue that point.
Senator Kinsella: The most serious and substantive problem involves clause 46, what I described at second reading debate as a democracy override. I am astonished that Canadians have not had their attention drawn to this point.
Would you outline for us again the Charter argument that you have made as to why, in your view, this provision is contrary to the freedom of association provision? When I was speaking to this point, I said that it undermines the freedom of choice or the freedom of vote.
On page 12 of your submission you refer to the opposition of Justices La Forest and McLachlin to forced association matches contained in the United Nations Universal Declaration of Human Rights. I am more concerned because there is a carbon copy provision in the International Covenant on Civil and Political Rights, which is a treaty obligation of Canada under international human rights law which speaks to the same thing.
Could you explain what your brief is saying from the human rights standard standpoint, as well as the section 2 concern?
Mr. Chipeur: Canada has an obligation under international law to comply with the international covenant. However, more importantly, under our municipal law -- the local law for Canada -- there is a direct command within the Charter of Rights and Freedoms in section 52 which states that any law which is inconsistent with the Charter is of no force and effect.
How will Bill C-19 be of no force or effect in this area? When the Labour Board at any time uses the power given it to override a majority vote of employees not to certify, that will be in violation of the guarantee of freedom of association for this reason. On its face, section 2 of the Charter guarantees freedom of association, which also includes freedom not to associate.
If the majority of employees have chosen not to associate, then their forced association with the trade union will violate, on its face, that right not to associate. The question the courts always then go into under section 1 of the Charter is: Is there a justification for this infringement that is reasonable in a free and democratic society?
The issue of democracy, a free choice exercised democratically, has allowed the courts in the past to say, "Imposing a union in a situation where the majority support the union, and requiring an employee to bargain collectively through a union where there is majority support for that union, after a free choice has been made, is consistent with section 1, which says you may limit a right if it is done through freedom of choice, and through the use of democratic principles." In this case, the freedom of choice of the employee, and the democratic rights of all of the employees, are taken away by an independent board which has nothing to do with that situation, is not there, and is not able to substitute its decision in a way that satisfies the requirements of section 1 of the Charter.
Senator Kinsella: Does the Oakes test not also include the minimum interference to achieve the objective?
Mr. Chipeur: That is right. However, we do not even get to that part of the Oakes test, because there is no objective here that could possibly justify taking away the rights of the majority of employees, other than saying to the employees, "You are manipulated by the employer. You do not have the competence to make a decision. Therefore, your decisions must be disregarded." I do not think anyone will stand up politically or in the courts and tell a group of employees that they are incapable of making a free choice, and that the board should make the decision for them.
I do not think you even get to the minimal impairment. You have no justification in the first place. There is no rational connection, and no justification for imposing that kind of limitation.
The Chairman: I have to apologize to Senators Chalifoux and Johnstone. There is simply not enough time.
Mr. Chipeur: Mr. Chairman, if any senators would like to fax to me any questions I would be happy to reply within 24 hours in written form, copies of which you can circulate to the committee.
The Chairman: That is up to you, sir. I am governed by the schedule before us.
When there is a longer list of senators, I will have to put a stop watch on both you and the witnesses.
Our next witnesses are from the Business Council of British Columbia.
Mr. Jerry Lampert, President and Chief Executive Officer, Business Council of British Columbia: I thank you for this opportunity to appear. I know it was a bit of a trying experience to arrange this session, so we appreciate having this opportunity today.
I will take a few moments to establish the credentials of the Business Council of British Columbia. The council was established in 1966 as an employer's council. It was a convening of resource companies to deal with emerging industrial relations issues. Since that time, the council has expanded into a role as the forum and voice for the largest enterprises in our province. Yes, we focus on labour issues, but we also focus on many other issues. We have ongoing input on economic issues, and dealings with the Department of Finance and other departments here in Ottawa on these issues, although it is fair to say our main focus is the provincial legislature and government.
We currently have 165 members, who are active in all major sectors of the B.C. economy, and that is described in our written submission. Twenty-four of our members are federally regulated, and my colleague Frank Pasacreta is chair of that group. The corporate members and affiliated associations of the business council create or offer one-quarter of all the jobs in British Columbia.
We regularly monitor the status of labour negotiations in the Province of British Columbia. I have distributed a copy of the most recent issue of our monthly industrial relations bulletin to you. This is something we have put out for many years. It is looked upon by many groups -- not only by our members -- as the definitive examination of the state of labour relations in British Columbia on a month-to-month basis. The Ministry of Labour in British Columbia subscribes to this document, as does the B.C. Federation of Labour. We are proud to have them as subscribers.
In B.C., we often appear as an intervenor on behalf of the business community at deliberations of the B.C. Labour Relations Board, and we speak to labour code and employment standards issues at the provincial level.
We have been involved right from the beginning in the examination of changes to the Canada Labour Code. In terms of Bill C-19, we have appeared before the House of Commons standing committee. We have met and presented written submissions to the Minister of Labour, his staff, and officials of the department.
We wish to talk about two significant issues that are covered in our written submission. One is the treatment of grain in the legislation; the other is the successorship provisions in the legislation. I would invite the committee members to review our written submission in detail. Rather than go through that submission section by section, however, I would like to do something a bit different, perhaps a bit provocative, and paint a scenario for the committee on what we believe could happen if Bill C-19 proceeds without change to the all-important grain provisions. That scenario goes something like this:
The current collective agreement will expire December 31, 1998. Bargaining for a new collective agreement will begin this fall. Given the newfound leverage of the grain provision in Bill C-19, we fully believe that the unions will come to the table, and be in a position to exert extraordinary pressure on employers to meet their various demands. Employers will not be able to meet these demands. We all know we live in a very competitive world, and it simply will not be possible to meet some of their demands. The unions take job action or, in fact, because of the unfolding events, there is a lockout at the port.
The port of Vancouver and all West Coast ports are closed down except for one thing: Grain continues to move. The unions engage in rotating work provisions which allow the union members to continue to draw pay on an hourly basis. In addition to that, union members receive strike pay. There is absolutely no pressure on the unions to return to the bargaining table, and to bargain in good faith.
In the meantime, B.C.-based products are not moving through the port. Lumber, pulp and paper, petrochemicals, potash, other metals, electronic goods, manufactured goods, and fish products are sitting at the port in Vancouver and are not moving. By the same token, goods are not arriving. Some of these goods are raw materials that B.C. companies and companies based in other parts of the country rely on as part of their processing. A good example is Cominco, which relies on lead and zinc concentrate from Alaska. That is not getting through the ports in this scenario. It is simply not arriving. We have the potential of a major industry in the interior grinding to a halt.
The pressure is growing. International contracts are not being met in terms of B.C. products. This has become an enormous trade issue. It is undermining the reputation of B.C. suppliers, and of Canada in general as a reliable supplier of goods. In our view, it is in conflict with the Team Canada approach which the Prime Minister has so proudly advocated over the years. It is an undermining of that approach.
What happens at the end of the day? This will either come back to Parliament to resolve, or B.C. will be faced with an economic disaster. Removing grain as a pressure point to promote industrial relations peace may sound good in the corridors of bureaucracy in Ottawa. At the West Coast ports where it really counts, however, it is impractical, ill-conceived, and not the solution to the problem.
A phrase has been bandied around here, "ace in the hole." If you go ahead with Bill C-19 as it is on grain, you are not talking about an ace in the hole, but about the unions having a fixed deck. This idea of setting aside grain has been referred to as an uncontrolled labour relations experiment.
Coming from British Columbia, we do not believe that we should be the test case, and we will be. We do not believe that you want us to be the test case. Make no mistake about it: Once again, British Columbia jobs and British Columbia business opportunities will be the victims if the proposed legislation becomes law.
We have an alternative proposal. We are not here simply to complain and bicker. Our proposal is in our submission. I turn to my colleague Tim McEwan to quickly run through that proposal.
Mr. Tim McEwan, Senior Policy Analyst, Business Council of British Columbia: Honourable senators, this committee recently heard of an alternative proposal on employer interests advanced to the Ministry of Labour last September. The essence of the proposal is to remove proposed section 87.7, the grain provision, from Bill C-19, and to replace it with a form of discretionary authority for the minister to appoint a special advisor or advisory panel to monitor port negotiations and to report on the anticipated effects of any prospective port work stoppage. On the basis of the special advisor's recommendations, or those of the advisory panel, the minister could make an assessment of whether there is an adverse effect to the public interest. The minister could then act in a number of ways, and they are outlined in our brief.
The minister could declare a cooling off period, could place limits on the right to strike and lock out, could appoint a mediator, or could require parties to enter some form of mediation arbitration. As a final resort, he or she could consider selection arbitration, interest arbitration, or other dispute resolution mechanisms that the minister feels is applicable in the situation.
The alternative proposal has the overwhelming attribute of preserving equality of treatment for all commodities moving through West Coast and other ports, and would do not give any commodity, including grain, preferential treatment as is bestowed in proposed section 87.7 in Bill C-19.
To shift to another issue, the Senate committee is also aware that Mr. Justice Estey is reviewing the grain transportation system from farmer to port. Mr. Estey recently issued his interim report. The report basically identifies the issues that stakeholders have with the grain transportation system. Among the issues identified at page 18 in the report is the grain provision in Bill C-19.
Given that the grain provision in this bill has been identified as an issue, we believe it is premature to enshrine it in proposed section 87.7 of the proposed legislation. We also think that the Minister of Labour and his staff have put the proverbial cart before the horse on this.
I want to briefly talk about the other issue we have outlined in our brief. As Mr. Lampert indicated, there is a proposed section in the bill, 47.3, which deals with successive contracts for services. The proposed section provides the Governor in Council, on recommendation of the Minister of Labour, with the authority to designate federally regulated industries which would be required, in their contracts for service, to provide wages not less than those provided by a predecessor contractor.
The business council believes that, if this provision is deployed, it will undermine free collective bargaining and open tendering within the broad federally regulated sector or, rather, those sectors to which the provision would be applied by the Governor in Council. Given the mounting competitive challenges that B.C. faces -- and Mr. Lampert identified a few of those earlier -- we believe this is poor public policy.
I would like to turn it over to Mr. Pasacreta.
Mr. Frank Pasacreta, Chair, Federally Regulated Employers Forum, Business Council of British Columbia: Honourable senators, it is a great pleasure to be here this afternoon. I would like you to keep one thought in mind as I go through my comments: Proposed section 87.7 does not find its origins in any of the reports you have before you. It does not find its origins in the task force report, nor in the IIC's report. I will draw your attention to the task force report and to its particular recommendations at the conclusion of my comments.
I hope to provide the point of view of a person who actually attended, as an employer representative, all of the meetings of this committee, if I can refer to it as the consensus committee. It is in that context that I will make my remarks.
I am particularly concerned about the sense that has been left -- and I believe it has been left with you as well -- that a good deal of consultation has occurred on proposed section 87.7. That is simply not true. Consultation on that issue has not taken place in any forum that I am aware of, certainly not substantial consultation. The subject was not discussed at the labour-management committee. The labour-management committee essentially was asked to put forward issues that labour and management felt needed to be addressed in the labour code, and it did so. A good deal of time was spent dealing with those issues and, at those deliberations, the grain issue was not at the forefront; it was not on the table, and it was not discussed.
The participants from labour and management in that consensus group did not have the grain issue on the table during their deliberations. They spoke a good deal about restructuring of the Canada Labour Relations Board, and about the right of striking employees to return to work at the conclusion of a strike. They spoke a lot about replacement workers and other subjects, but the grain issue was not there.
We made recommendations to the task force which they have incorporated. A good many of those had to do with changes to the Canada Labour Relations Board and its structure. Once the task force report was released, a number of meetings were held around the country to talk about its content. Little attention was paid to the grain issue, and I will tell you why.
If I can turn your attention to page 95, the task force had this to say about the grain issue and about all of the various deliberations that had taken place until this time. They said this in their concluding remarks:
While we have considered those recommendations as fully as possible given our time frame, to do them full justice we believe further consultation on their recommendations and on ours in this vital area of West Coast ports bargaining is absolutely essential.
They go on to say:
The Minister of Labour has already committed to such consultation on our recommendations.
They make this as their actual recommendation, and it is in a box on that page:
The Minister of Labour should initiate consultations with labour, management, and others affected on the full range of recommendations brought forward by the Industrial Inquiry Commission into Industrial Relations at West Coast Ports.
No such consultations have ever occurred of which I am aware.
The B.C. Maritime Employers Association has not been consulted, nor have our members. The Business Council of British Columbia has not been consulted, nor have its members. If consultations have taken place, they have taken place in a vacuum.
The fact of the matter is that we were not aware that this provision was going to find its way into the legislation until we saw Bill C-66. I ask you: Is it any wonder that we are opposed to it? Is it any wonder that we are disillusioned by the process? We understood and believed that this would be the subject of further consultations; that a matter as important as this one would receive a good deal more attention than it has unfortunately thus far received.
I will conclude my remarks by urging you to follow through on what the task force has suggested, and to ensure that some form of meaningful consultation on this important issue takes place. To do that, we would urge you to send the bill back to the house with proposed section 87.7 deleted.
Senator LeBreton: When Mr. Dufresne, President of the International Longshoremen's & Warehousemen's Union, appeared before us, he talked about maintaining the movement of grain while the collective bargaining process was continuing. I asked him what the incentive to settle was. That is, if all this were going on, could it not affect the movement of other commodities, and did we not risk backing up the whole system? At some point the argument was made that grain is perishable, and that other things can be stockpiled. However, tell that to potash shippers. It might be in the ground a million years, but when you get it on the dock, it certainly is perishable. Mr. Dufresne's response to me was that during collective bargaining, all commodities can -- it is an interesting word he used -- continue to move.
Is there not a real danger that, while the bill ensures the shipment of grain through the ports, it could prolong the process, make labour negotiations even tougher, and prevent other products from moving through the ports?
Mr. Pasacreta: I think that is a clear and correct assessment. Only grain products handled by the terminals continue to flow during a strike. Agricultural products handled by the other terminals in the Port of Vancouver and elsewhere do not continue to flow. To the extent that those products are perishable, feed products, alfalfa and all of the other types of food products would be behind picket lines essentially. Weather-sensitive cargo like potash, pulp and paper also would continue to be exposed to weather and, in due course, they would deteriorate. Refrigerated products would also be at risk. When food is put in a refrigerator, its life is prolonged, but only for a period of time. We handle a considerable amount of refrigerated products in refrigerated containers, and those continue to deteriorate as the strike continues.
With grain absent from the picture, it is our expectation that, with respect to the ability to have up to 20 per cent of the work force in Prince Rupert continuing to work, and 10 per cent in Vancouver, there is the very real probability that rotating those individuals through there will mean that the labour disputes will be more protracted than they have been.
There is this misnomer about strikes. There has been one strike among longshoremen and the B.C. member companies in the last 12 years, not the great many that have been described. I ask you to take a look at the number of strikes that have affected grain movement to the Port of Vancouver. The grain terminals have been on strike. The railways have been on strike twice since 1987. The B.C. federation shut the port down once during that period of time. Prince Rupert grain has been shut down once during that period of time, and grain inspectors employed by the Canadian government have been on strike once during that period of time. Each of those groups were legislated back to work. If the real intention is to stop disruption of the grain, there are a great many more villains in this piece than those employed by the member companies of my association.
Senator LeBreton: Does grain represent 13 per cent of the volume moving through the port?
Mr. Pasacreta: Grain represents 13 per cent, and the other commodities represent about 87 per cent. The division is about $30 billion in total value, of which $4 billion is grain.
Senator LeBreton: You do not have a sense that other commodities will continue to move?
Mr. Pasacreta: They will not continue to move.
Senator LeBreton: Even though they can continue to do so.
Mr. Pasacreta: They will be stopped.
Senator Fitzpatrick: As I said earlier, I am concerned about the opportunity for B.C. business to improve its conditions and its growth. I have some difficulty with the principle of providing preferential treatment generally, and in particular with providing it to one industry. You have spoken about the effect it will have on the labour situation on the West Coast and the effect it will have on other industries. I wish to discuss the effect it will have on B.C. ports.
In the last year or so we have seen the privatization of the airport. We have seen the tremendous growth of an industry surrounded by the infrastructure in the airport hub activity. We have now just passed Bill C-9, which provides the same opportunity to the ports. I should like you to describe for the committee what negative impact you think this could have on the port if grain and other commodities go to other ports on the West Coast. Further, which ports would be impacted?
Mr. Lampert: You are absolutely right. We are very proud of the changes occurring out there. We speak about Vancouver being the gateway to the Pacific and, vice versa, the gateway to Canada.
Our port has continuously grown in its ability to handle various products. There is always the danger that, if there is a prolonged strike, the opportunities that have been achieved will be lost to other ports along the West Coast. Seattle is not too far away, as is Portland, Oregon. As a matter of fact, we document in our submission that when there have been strikes, there has been an ability for producers to move some product. It is then tough to get that product back on to our port.
Mr. Pasacreta: It is not just that producers find another vehicle to ship the product; it is that the purchasers find other producers. When you are speaking about goods produced in Canada, the very real danger is not that they pass the port and go south to a U.S. rail system and then to a U.S. port, but rather that they find another supplier. That is the real concern.
The container business is a fragile business. The moment there is any threat of a disruption, Canadian-bound containers are diverted to the United States, particularly to Seattle and Tacoma.
The risk for bulk products and agricultural products that we handle is that they will find other sources of supply. If they find other sources of supply, as they have in some cases, they do not return. That is the concern. It is not that they will find another means of transporting the goods. There is a real danger that will happen, but the big concern is that they get their pulp and paper and their forest and agricultural products from other suppliers.
Mr. Lampert: The Port of Vancouver has a growing international reputation as being a good place to do business. That can be substantially undermined if we close the port for an extended period. There is no question about that.
Mr. Pasacreta: Container volumes in the port have gone from 250,000 twelve years ago to 750,000 today. We have an additional container terminal to cope with that volume.
Senator Chalifoux: Do you have any evidence that proposed section 87.7 will result in longer work stoppages in British Columbia ports?
Mr. Pasacreta: We have never had to live with the reality of it, so there is only speculation and assumption that this will have an impact. However, this is certainly the universal view of virtually every industry that has appeared before this committee, of which I am aware, with the singular exception of grain.
Senator Chalifoux: FETCO, the Federally Regulated Employers--Transport and Communications, told this committee on Wednesday that they felt Bill C-19 represents an acceptable compromise, and they urged us to get down to passing the bill. How many of your members are federally regulated employers and subject to the code? Are most of them members of FETCO?
Mr. Lampert: Let us deal with the business council. Twenty-four of our companies are federally regulated. All member companies of the business council support the position we are taking on this issue.
The Chairman: Thank you, witnesses.
We will now hear from the NWT Chamber of Mines and its president, Mr. Doug Willy.
Welcome. Thank you for waiting, and for bearing with us on a long Friday afternoon. Please proceed.
Mr. Doug Willy, President, NWT Chamber of Mines: Thank you for the invitation, although it was somewhat late. Excuse me if I am not quite as sharp as I normally am. I had to fly all night to get here from Yellowknife.
I will not go through my brief in detail. Hopefully you have all had a look at it. I will just highlight a couple of points. I made a similar presentation to the House of Commons committee a short while ago, as did a number of the aboriginal associations in the Northwest Territories. We have membership on the board of those aboriginal organizations, so hopefully our comments represent the aboriginal community as well.
This particular bill is important in the Northwest Territories, because it is not only transportation, banking and the uranium industry that are covered by the Canada Labour Code. Everyone who works in the Northwest Territories is covered by code. We do not have the choice of making our own legislation, so we are stuck living with whatever the federal government serves up to us.
Mining is the industry in the Northwest Territories at the present time. There is no alternative. There is no agriculture; there is no grain to worry about moving. It is mining. With the federal government's recent initiatives on aboriginal people, we feel that the one thing they can use to gain an equal status in Canada is the mining industry.
You may think that we are using aboriginal peoples to get a message across. It is a fact of life in the Northwest Territories, as in a couple of other jurisdictions in Canada, that, if we are to continue mining, it will be in partnership with aboriginal peoples. As land claims are settled, potential mines are on lands owned by aboriginal peoples.
We currently have only four operating mines in the Northwest Territories. Three of those mines are unionized; one is not. There is a strike on right now at the Con mine in Yellowknife. Even though the price of gold has gone down to an almost-eight-year low, the union representing employees at the Con mine decided to go on strike three weeks ago. Very shortly, 400 people will probably be out of work.
Regarding that mine, after 66 years of production, only four employees on its staff are aboriginal. How does that fit in with this legislation? In a new mine operating in the Northwest Territories right now, we cannot hire skilled journeymen, professional engineers, professional geologists and the like in the North. We must import them from the South. Therefore, the section on automatic certification and card signing is very important. If a new company were to hire 400 employees, of which only 50 or 60 were tradesmen from the south, they could start a campaign, insinuate that the mine is involved in some sort of unfair labour practice, and be certified under the new legislation. You could unionize 450 aboriginal employees who do not want the union because of this new clause in the legislation.
Mr. Clem Paul, the president of the Northwest Métis Alliance Presentation, made this point to the House of Commons committee. He made it very clear that this was not in their favour.
Regarding replacement workers, two of the existing Northwest Territory mines are totally served by the three-month periods in a year when they can transport goods in and out. Removing the ability to hire replacement workers during that period is really an unfair advantage, and removes any bargaining which may exist.
All of the mines that will be opened in the future will be done on a fly-in basis. The Northwest Territories government, a number of years ago, told the mining industry that it did not want town sites built any longer. Pine Point closed down. Uranium City closed down. Since that time, all mines have been developed on a fly-in basis.
The new BHP diamond mine depends on a re-supply of about $120 million per year of goods across a winter road which is open for eight to ten weeks. It is unfair to introduce legislation that would restrict their ability there. It is not a choice of whether they will do it or not. The choice is whether they shut down for a year.
In the Northwest Territories right now, there is absolutely no exploration other than diamond exploration. There are a number of reasons for that. One is the low price of gold. The other is the high cost of exploring in the Northwest Territories. We know that our costs are a minimum of 35 per cent higher than anywhere else in Canada. This is an economic issue. We have the high costs. If you have read the Fraser Institute report on economics and mining exploration in Canada, which came out a couple of months ago, you know they put the Northwest Territories as the number one area to do exploration because of the potential. However, it is the second worst, only behind British Columbia, for investment climate. Introducing this particular amendment to the Canada Labour Code will do nothing but add to our restrictions, when you take in the certification clause and the non-replacement-worker clause.
If we did have powers in the government of the N.W.T. to make this type of legislation, there is no doubt it would not look like these Bill C-19 amendments. However, until such time as we can prove ourselves -- when it is economically viable to become a province -- we will never have those powers.
The Chairman: Oh, no.
Mr. Willy: I guess we are asking you to consider that you do listen to the territories. It is a different group. During consultations, only one visit was made to the North. Our members are spread over the whole Northwest Territories. If someone announces that they will come into town for a one-day meeting, it can cost $3,000 to $5,000 for a member to come into Yellowknife for that meeting. Our representation consists of the same people talking all the time because they think it is one large company speaking over and over, but it is not.
The Chairman: That is very helpful. Thank you very much. On that one point that you made, I do not know whether you know this -- and even if you do know it, I do not hold you responsible for it -- but the Northwest Territories had the opportunity to take over jurisdiction over labour relations a few years ago. For whatever reasons, it was not picked up. Were you aware of that?
Mr. Willy: Yes. We could probably talk about that one for a little while. That is another story.
The Chairman: I do not know the details, but I am correct in my recollection.
Senator Kinsella: Who was the Minister of Governmental Affairs?
The Chairman: It was not me. It was long before my time. That was under another government.
Senator Chalifoux: Thank you very much, witnesses, for your insightful presentation. I was referring to the North Slave Métis with Clem Paul and Sholto Douglas, because they seemed to have some legitimate concerns regarding the access to employment as it refers to this act for the aboriginal people. The aboriginal people represent the majority of the population in the territories, so it must be a good partnership.
I would like your comments, especially as concerns the Sahtu and Gwich'in land claims. I believe the Diavik mine falls into their area, and they are very concerned. Could you please comment on that?
Mr. Willy: As aboriginal people, we have experienced problems in the past dealing with companies which have collective agreements. A collective agreement deals with employees when it comes to training, education, promotion and so forth. The gist of the aboriginal peoples' concern is that, if a collective agreement is in place, preferential treatment cannot be given to the aboriginal people in recruiting.
The incidents which have happened in Canada occurred prior to the collective agreement prove that point. The two local mines, the Giant mine and the Con mine, prove that. Neither mine has First Nations people as 1 per cent employees, even after 40 to 66 years of employment. We are trying, with the Diavik mine, the BHP mine and others, to design programs of preferential treatment to get local people into the workforce. The concern is that this would be removed once again if the legislation passed and we let in an unknown union.
Senator Chalifoux: What part of the legislation is of the prime concern?
Mr. Willy: I refer to the section dealing with the automatic certification without a vote.
Senator Chalifoux: That is clause 87.7. Thank you.
Senator Kinsella: The government wants to modernize the Canada Labour Code. I am baffled by the insensitivity to the native peoples' situation, however, and the insensitivity to the gender issue. We have been presented with a very short period of time in which to review this legislation in the Senate. It has been a long time since I saw a piece of legislation in such serious need of serious review. I hope we will be able to find the time to give it this kind of treatment.
Would you speak a little bit further on this subject?
The new Canadian Industrial Relations Board would have many other remedies available to it should it detect unfair labour practices. Why did the government not accept that method of remedies as being sufficient? Why have they imposed this democracy override clause, as I describe it?
Mr. Willy: We do not know. However, we have an example in the territories that we can use. Basically, we agree with the position that Mr. Chipeur put forward.
A couple of our member companies are involved in the group of people that got Milner Fenerty involved. Steel workers attempted to unionize the Echo Bay Mine within the last two and one-half years. The company was charged with a number of unfair labour practices. In that case, they asked for a vote. Approximately 76 per cent of the employees voted against the union. As we understand the new legislation, there would have been no need for that vote. The Industrial Relations Board could have certified it automatically, even though 76 per cent of the employees were against the union.
We think the old system worked well, although there were probably a number of situations where one wondered where the board was coming from. I cannot comment much further on why they went there. I look at it more from a practical perspective -- that is, from dealing with different communities. That is why we have people like Mr. Chipeur around, namely, to get them to look into more of the legal details.
We are totally in agreement with changes being made to the Canada Labour Code. We have said that in the first page of our brief. That is not the point. The point is that there was absolutely no consultation in the Northwest Territories. We had one day to give our input into this proposed legislation. We had wanted to address a number of other areas. For example, there is no reflection in the Canada Labour Code for fly-in operations. We are still dealing with employment situations that were written 25 to 40 years ago. Furthermore, eight-hour days are a thing of the past. They are now seven and one-half-hour days for fly-in situations. A number of those situations still exist. We would like to see a rewrite of the whole legislation, but it must be done properly.
Senator LeBreton: The replacement worker portion of the bill must cause you some considerable concern in the North.
Mr. Willy: The replacement worker legislation is in there as part of a knee-jerk reaction to the Giant mine strike a few years ago. We in the North think that the strike never would have happened if the Minister of Labour had become involved sooner. It is a reaction to a situation that they did not act upon quickly.
That type of situation will never happen again. A pile of other circumstances were involved in that situation.
The Chairman: There certainly were. I remember them well.
Mr. Willy: We met with all of the fly-in companies, and with the companies in the far north who use the barge. We went through the new non-replacement worker legislation, and we do not know how we would operate under it. At some time you would have to say, "We must shut it down for a year. Lay everyone off." You could start it again the next season. We have not come up with another way of handling it.
The Chairman: Are there further questions or comments? If not, I wish to thank you very much for coming here this afternoon.
The committee adjourned.