Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 16 - Evidence
OTTAWA, Wednesday, June 17, 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 4:25 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: We are now beginning our fifth meeting, pursuant to our mandate, to consider Bill C-19. We are very pleased to welcome the Minister of Labour, Honourable Lawrence MacAulay, who is joined at the witness table by several assistants.
Welcome, minister. Please proceed.
The Honourable Lawrence MacAulay, P.C., M.P., Minister of Labour: I am pleased to rejoin the debate on Bill C-19. I am sorry I missed your deliberations last week but, as some of you may know, I was attending the 86th session of the International Labour Conference in Geneva. This year's conference agenda included items on child labour and contract labour, as well as discussions on fair labour standards and international trade -- all topics of great concern to my department and especially notable given that this year is the 50th anniversary of the Universal Declaration of Human Rights.
I have briefed myself on your hearings and the concerns you raised during your discussions last week, and I would like to address some of those now. Before I begin, I would like to explain some of the reason that it is so important that this bill become law now.
First, it is vital that we renew the Canada Labour Relations Board. Bill C-19, as you know, will make the new board representational. It will be made up of individuals with solid experience and expertise in industrial relations. Also, the conciliation process needs to be streamlined, in order to encourage parties to settle their disputes quickly. Rules for the maintenance of services for public health and safety, such as airport firefighters, must be put in place now. West Coast ports and the longshoring industry will begin negotiating new contracts this fall. We must put the rules in place now.
Senator Kinsella has raised an interesting point concerning the language of the bill, suggesting that its wording is not gender-neutral. He has a point if he means to say that parts of the Canada Labour Code not being amended contain gender-specific terms, but such is not the case with Bill C-19. Non-sexist language has been used in the bill. For example, the word "chairman" has been replaced by "chairperson," and the pronoun "he" has been avoided or replaced by "he or she."
I understand that the policy of the Justice Department is that all bills amending current legislation or establishing new laws must be gender-neutral, but it is not their policy to draft specific stand-alone legislation whose sole purpose is to remove gender-specific terms.
I want to pursue this matter and am actively exploring with my colleagues ways to accommodate these concerns without reopening discussions on the substance of Part I of the code. I expect to introduce amendments to Part II of the code later this year, which could present an opportunity to address this issue.
You have heard arguments made to you concerning clause 7 dealing with proposed section 18.1 and the issue of seniority rights. I note that this is a concern raised specifically by Air Canada pilots. Let me just say that clause 7 was drafted in such a way so that it applied to all industries subject to the code. It cannot be tailored to the particular circumstances of individual parties. It is designed specifically to enable the new board to address issues that come out of the changes to the structure of bargaining units. These were identified by the Sims task force. I might point out that the emphasis remains on the parties to negotiate agreements for themselves. Only in cases where no solution is found would the board have discretion to amend particular provisions of collective agreements.
That said, we must remember also that proposed section 18.1 will be applied by the new representative board, which will be made up of people with labour and industrial relations expertise. Parties will have every opportunity to make their representations, in terms of both procedure and substance. The board must, however, be left with sufficient discretion and flexibility to allow it to deal with a variety of situations and to fulfill the objectives of the code.
I am aware that the provision requiring the continuation of services to grain vessels has been vigorously opposed. I am aware that many resource producers have made representations, wishing to broaden the government's influence in controlling labour-management relations in this sector.
However, the purpose of this part of the bill is specific. Its only intent is to remove grain -- and it is grain rather than other commodities that is the trigger for back-to-work legislation -- from the equation in longshore collective bargaining and to discourage reliance on Parliament to resolve port work stoppages.
While I understand but do not agree with the criticism of this provision, I cannot understand claims that it came out of the blue and that no consultations were ever held on this matter. Such claims were made before you last week.
I believe it was clarified at your hearings that an industrial inquiry commission did recommend that grain vessel work be completely divorced from longshoring in the West Coast ports. That recommendation was rejected by the longshoring industry and was not followed. Instead, a compromise suggestion, put forward for consideration by the Sims task force, is reflected in the bill. I emphasize that it has never been maintained that Sims and his colleagues made a formal recommendation. Rather, their suggestion was carried forward for further consultation. Given the need to correct an impression that may have been left with you, I believe it is important to set out the record of the consultation process.
The Sims task force report, "Seeking a Balance," was released in February 1996. My predecessor as Minister of Labour, the Honourable Alfonso Gagliano, subsequently conducted a series of public round-table discussions, with interested parties, in locations from coast to coast.
Early in April 1996, he started these consultations in Vancouver with two round-table sessions, one on the Sims report in general and the other on issues related to the grain and port matters, specifically issues arising from the Industrial Inquiry Commission findings and the Sims consideration of its recommendations.
A number of persons who appeared before you last week were active participants at that round-table meeting, along with others representing a variety of interests from labour, management, and users of port facilities. All relevant issues, including the Sims suggestion, were open for discussion, and the views expressed, both for and against, have remained virtually the same since that time.
The grain provision has been the subject of further consultations since the round-table sessions.
Before introducing Bill C-19 last November, I had already visited Vancouver, toured the port and grain facilities, and met with all interested groups to review the provision, which of course had been included in the former Bill C-66. I went to Vancouver again early this year to hear further representations against and in favour of the provision.
I know that we have not followed the preferences of those who oppose proposed section 87.7, but I am at a loss as to how anyone can say that there was no consultation.
This provision has the support of our grain farmers and those in the grain industry who have no relationship or influence on collective bargaining between the longshore employers and unions. We are committed to reviewing its effectiveness next year, following the completion of the next round of West Coast longshore bargaining. All of us can agree that grain has indeed been a trigger point for port troubles. The idea here is to get rid of the trigger.
As for the growing population of off-site workers and their dual rights -- their right to know about union activity and their right to privacy -- I believe we have struck the right balance. This bill will provide the board with the flexibility and authority to see that both of these rights are faithfully and fully met.
So too with the very careful wording of the clauses dealing with replacement workers. We took note of the Standing Senate Committee report on Bill C-66 and redrafted the provision to capture the full intent and reflect the complete wording of the Sims majority recommendation. I know you had some debate in committee about the meaning of the word "demonstrated." I do not believe that the board will have any problem interpreting the intent of this word or the provisions of this section of the bill.
In response to your concerns on remedial certification, we have studied the Senate's original report on this issue and responded by following the wording of the Sims report faithfully. Majority support has always been, and will remain, the basis for union certification. However, I am confident that no fair person believes that employers have the right to subvert or intimidate workers' opinions and rights to consider joining an union. In the rare case that this happens, it is only fair that there be a remedy to such conduct. That is what remedial certification does; it provides a remedy for unfairness.
Similar provisions exist in five provincial jurisdictions and have been interpreted sparingly by provincial labour boards for many years as extraordinary remedies. I fully anticipate a similar situation in the federal jurisdiction. I have full confidence that the new board will operate with similar caution and discretion. I am, of course, committed to monitoring its application carefully.
Neither the replacement worker provision nor the remedial certification provision should cause concern to employers who respect the code. Furthermore, they should take comfort from the sanctions provided for those who contravene its provisions. Employers who play by the rules do not need unfair competition from those who break them.
I have committed specifically to reviewing the effectiveness of the grain provision, in line with your committee's request. Also, let me assure you of our intention to review Justice W. Estey's report on grain handling in Canada; any recommendations will be analyzed in the context of Bill C-19. I will examine alternatives and am prepared to make amendments if a better formula can be found. I am also committed to monitoring the application of remedial certification. I stand ready to keep close watch on the practical workings of all the elements we will be amending or initiating as a result of this bill passing into law.
I would draw your attention specifically to clause 47 and the proposed new section 104.1, which will provide a forum for the minister to meet with experts, employers and union representatives for the purpose of discussing industrial relations issues. This forum will offer an excellent opportunity for those affected by the code to voice their concerns and hopefully their appreciation for the way it works in practice. That, together with the creation of a representative industrial relations board, should ensure genuine input by knowledgeable people in the field.
Let me conclude by saying that we have been seeking compromise and consensus on changes to Part I of the Canada Labour Code for almost three years now.
The consultation process with all the stakeholders has been exhaustive. The compromises have been made and the consensus on the majority of items has been reached. We are at that stage of debate where, after three years, we risk losing site of the forest as we concentrate on selected trees.
The time has come to legislate these long overdue changes to Part I. We owe it to all those who have given so much of their time and energy to making thoughtful representations to the Sims task force; to the groups of labour and management representatives who wrestled with the Sims recommendations as members of the labour-management consensus group; and, of course, to all those who took time out to make their views known to committees in both houses.
Not everyone will agree with every last word in Bill C-19; that would be impossible, but, overall, it is balanced.
The Chairman: Before calling on Senator Kinsella, let me say that, in the expectation that we would be beginning at 3:30 and not at 4:30, I had given some undertakings to the minister about when he could get out of here. I made no commitments on your behalf but we are running an hour behind. I do ask you all to bear that in mind.
Senator Kinsella: Minister, could you share with the members of this committee your consultations with the provinces concerning this bill and, in particular, which provinces wrote to you expressing concerns with the bill?
Mr. MacAulay: Senators, two provinces wrote to me on the bill, those being Alberta and Ontario.
Senator Kinsella: Would you share with us their particular concerns?
Mr. Michael McDermott, Senior Assistant Deputy Minister, Legislative Review, Part I of the Canada Labour Code, Department of Human Resources Development: Ontario's concern related to the question of certification and mandatory votes, those kinds of things.
Senator Kinsella: What was their position?
Mr. McDermott: They simply indicated they had changed their provisions in their code, and the minister responded that that was fine. However, we had not changed anything in this particular bill with respect to mandatory votes because there was no issue found by Sims to recommend such a change.
Senator Kinsella: Mr. Chairman, if it is possible, perhaps we might have that correspondence tabled with this committee, if the minister agrees.
Mr. MacAulay: I would like to speak to the people who wrote to me first; with their consent, I would have no problem.
Senator Kinsella: Do you recall the concern of the Government of Alberta?
Mr. McDermott: There were two or three concerns. The vote was a concern of theirs and, from memory, I believe the grain issue was raised. They asked for an explanation of what we were doing.
Senator Kinsella: When we have the opportunity to meet with the minister, it is our opportunity to get into questions of government policy to which public servants cannot speak. I was somewhat confused, when I read your bill, minister, in terms of the provision which speaks to the experience and expertise required of the chair and the vice-chair of the new board but which is not required of any other members of the board.
That issue was vigorously argued before the Senate when we were examining Bill S-5, which was a government bill initiated by the government in the Senate. The bill came first to the Senate and then it subsequently was adopted by the House of Commons and received Royal Assent.
In Bill S-5, which is an amendment to the Human Rights Act, it was government policy that all members of the human rights tribunal must have a certain level of experience and expertise. To ensure that that happens, tribunal members are required to be members of a bar.
To my mind, there is a difference in government policy here. On the one hand, the government is requiring members of an administrative human rights tribunal to have experience and expertise in the form of membership in a bar. In your bill, you do not require experience and expertise of all members of this tribunal because the CRB is an administrative tribunal as well.
When one considers the additional powers that will be given to this new board and, in particular, the powers that will be given to the new board to certify a bargaining unit contrary to a majority vote of its members -- what I have described as a democracy override -- I would want to be more assured that the members of that board were very familiar with the rules of natural justice and very familiar with the rules of administrative law.
Can you explain to me what appears to me to be a contradiction in government policy? If it is not a contradiction, I would be happy to hear the explanation of why it is not.
Mr. MacAulay: I would speak about the labour board that I intend to put in place. As you are aware, both management and labour will recommend to me people who should sit on the representational board. The government wants to ensure that we have, to the best of our ability, the best labour and management people on both sides. If you come to the labour board, you will see a neutral person, a person from labour and a person from management; they will sit down and fairly evaluate the problem that is brought forth.
That is what labour and management both want. We have answered their concerns, and I truly feel that it is the proper way to go as far as the labour board is concerned.
Senator Kinsella: I have the minister's answer. Thank you, Mr. Chairman.
Senator Maheu: Welcome, minister. You indicated at the beginning of your presentation, and we have heard from both labour and management representatives, that it is important that this bill be passed now. What would be the impact of the bill not becoming law before the summer recess?
Mr. MacAulay: For one thing, we have the collective bargaining process on the West Coast ports. They come up for renewal in the latter part of this year. We wish to put the new labour board in place, and I think everyone agrees it needs to be put in place.
Quite simply, we have been dealing with labour and management. An awful lot of people all across this country have worked for close to three years in order to come up with what I believe is a reasonable consensus. There may not be full consensus on everything, but fairness is the measure for which we strive. That is why we need it.
There are a number of other issues, such as the firefighters at the airport. In the present legislation, this type of thing is not protected. With the new legislation, they must keep a certain number of people on staff.
We have other provisions in the bill for security at the airport. That cannot be done on the backs of the employees in order to acquire a new contract. There are many reasons for which I think this bill has gone well beyond the period of time when it needed to be passed.
Senator DeWare: Mr. Minister, I have a big concern about replacing the board members, some of whom still have six, four and three years left in their mandate. Has there been any thought given to a reimbursement for these people who have time left to serve?
What about your appointment of members for three years? I understand that two to three years is needed, to familiarize oneself with the area of industrial relations and to deal with all the different kinds of disputes.
Do you believe that the appointments are for a long enough time? Also, will you stagger appointments so that there will be continuity?
Mr. MacAulay: With regard to what will happen to the current appointees, quite simply, when the new legislation comes into force the old board is gone. There has to be a transitional period and we are working on that. I do not yet know what the period of time for that will be.
Senator DeWare: I did not see anything in the legislation on that.
Mr. MacAulay: The legislation creates the new board. It does not set out the time for a transition period between the old board and the new board.
Senator DeWare: Some of the current members have a six-year contract with the government.
Mr. MacAulay: Senator, I do not want to say that the current members will or will not be on the new board. That is something to be determined by the government when the new board is put in place. As you know, from time to time people are re-appointed to boards by the government, but there is no provision for that. Everyone in Canada is entitled to apply for a position on the board.
Senator DeWare: My point is that there are guidelines for appointees to this board. They cannot earn remuneration from other work; the chairman and vice-chairman must move to Ottawa; appointments are made on a five-year basis.
If this bill is given Royal Assent this week, some of the current board members will be gone. My concern is about remuneration for those people. When they entered into their six-years contract, they did not expect that they would be gone this week.
Mr. MacAulay: I fully understand your concern, senator. However, I am not concerned about individuals who are currently on the board. My responsibility as minister is to put a new board in place, with people who can do the required job for the people of Canada, whether those be some of the people who are currently there or new people.
How that will be dealt with is yet to be determined. Sometimes it becomes a legal matter. My responsibility as Minister of Labour is to put a board in place that operates properly, which is what I intend to do. We will treat people as well as possible, but I am not making any commitments as to what I will or will not do.
Senator DeWare: But you will make a commitment to the people you appoint.
Mr. MacAulay: We always do.
Senator DeWare: Someone made a commitment to the others who were appointed, and now that commitment is gone.
Mr. MacAulay: Senator, this is not a new precedent, as you are aware.
Senator Sparrow: What are the precedents?
Mr. MacAulay: When the Veterans Review and Appeal Board was put in place, for example, there were changes made to the membership. There can be accommodations made.
Senator Sparrow: Will there be accommodation made in this case? Will there be provision to ensure that these people do not find themselves out on the street overnight?
Mr. MacAulay: We will be negotiating with them.
Senator DeWare: When you appoint the members of the board, how will you ensure that the entire board will not be replaced at the same time?
Mr. MacAulay: We can appoint people for different lengths of time.
Senator DeWare: I believe that you have to do that.
I am still concerned about replacement workers, as your deputy minister will tell you. After all the discussions we have had on Bill C-66 and this bill, I believe that most of the people I heard were prepared to accept the Sims recommendation. You are telling me that it is accepted word for word, but that is wrong. It is not word for word the same as the Sims recommendation.
The approach in the bill looks like a negative one. Clause 42(2.1) of the bill begins with the words "No employer or person acting." That is a negative approach. If you had started with the wording of the Sims report, that "there shall be," I think it would have been much more acceptable. It would still be in line with what you want, but it would not have had such a negative connotation.
Mr. MacAulay: I am not sure I follow. Are you opposed to replacement workers or in support of them?
Senator DeWare: I support them.
Mr. MacAulay: This quite clearly supports replacement workers.
Senator DeWare: It does, but the wording is not the best. I keep arguing this point. Everyone says that it does, but it is subject to interpretation.
I have fought my battle. Although I am not winning, I am being consistent.
Senator Beaudoin: My concern, Mr. Minister, is with clause 46. I would like to know a little more about it. We give to an administrative tribunal a very broad power. According to the jurisprudence so far, an administrative tribunal of course applies the Canadian Charter of Rights and Freedoms. I know that the Chief Justice has expressed some views on this and I think the court may change its mind one day. However, until that it is done, this is the jurisprudence.
Is that not giving a lot of power to an administrative tribunal? I would like to know whether you are obliged to go that far in that field. The lawyers who appeared before us did not all agree on this. That is not new, of course, but it raises some problems. Perhaps there is an explanation, but so far I do not know what it is. Is it strictly necessary?
Mr. MacAulay: You are wondering why the provision is?
Senator Beaudoin: Yes. Why are we going that far?
Mr. MacAulay: We are going the distance of fairness. This is a quasi-judicial board that has the authority to evaluate and make decisions. This is something that would happen very rarely. Although the majority of employers are very fair, this gives the unions a place to go if it can be demonstrated clearly to the board that the employer has used an unacceptable practice.
Senator Beaudoin: The wording is:
The Board may certify a trade union despite a lack of evidence of majority support if...
Of course you will say that that is very exceptional.
Mr. MacAulay: What is after the "if"?
Senator Beaudoin: It continues:
(a) the employer has failed to comply with section 94; and.
(b) the Board is of the opinion that, but for the unfair labour practice, the trade union could reasonably have been expected to have had the support of a majority of the employees in the unit.
It must be settled somewhere; I agree. It may be settled by a court of law. However, this is not a court of law. This is an administrative tribunal. There may be lawyers on the board, of course, and it is provided in the bill that the chairperson and the vice-chair must have experience and expertise in industrial relations.
I would like to know the main reason. Is it the exceptional character of the case? Prima facie, it is would appear to be contrary to democracy.
Mr. MacAulay: I am not sure that I agree. Senator, I think you have practically answered your own question if it can be demonstrated that inappropriate action has been used.
Senator Beaudoin: I am just trying to find the answer.
Mr. MacAulay: Quite simply, if you did not have that provision and management does whatever they like, where would these people go? If 99 per cent of the employers follow the law and only 1 per cent does not, is it not fair to have a method to address the situation? Quite simply, this bill provides the new board an opportunity to address it, but it must be clearly demonstrated. It is a matter of fairness.
Senator Beaudoin: My first reaction would be to give such a power to a court of law. Perhaps in the labour world that is the thing to do. I do not criticize, I just want to know why.
The Chairman: Excuse me a moment. The minister will answer your question. I have three senators wanting to ask supplementary questions. However, after Senator Beaudoin has concluded, I will see whether any other senators who have not asked questions wish to do so; then we will go to a second round and you can ask your supplementary.
Mr. MacAulay: Senator, it has been enforced in British Columbia since 1973 and in four other provinces across the country. This provision is used very rarely. As I indicated, I will be monitoring it closely. This provision is there to ensure that management does not interfere in the proper process.
Senator Beaudoin: You are suggesting that this provision would be used in exceptional cases.
Mr. MacAulay: Yes.
Mr. McDermott: I know you were interested in the Charter issue, senator.
Senator Beaudoin: That is my concern.
Mr. McDermott: Two provinces, Manitoba and New Brunswick, introduced similar measures after the Charter, in 1985. The other three provinces did so prior to that time.
Senator Kinsella: Has this ever been challenged?
Senator Beaudoin: It was never challenged.
Mr. McDermott: No.
Senator Kinsella: Minister, on page 4 of your opening statement, you have underscored the sentiment that majority support has always been and will remain the basis for union certification.
This is the principle that you have just enunciated for us. On page 35 of the bill, the clause that Senator Beaudoin mentioned, it reads to the effect that the board may certify a trade union despite lack of majority support if the employer has failed to comply with section 94 and if the board is of the opinion that for unfair labour practice the trade union could reasonably have been expected to have had the support of a majority of employees in the unit.
Are you suggesting to this committee that those two principles are identical?
Mr. MacAulay: I am suggesting that the bill indicates that, if the employer does not follow the proper procedure and if the Canada Labour Board can be convinced of this, the Labour Board will adhere to what we would consider proper practice. The majority rules. That is what will happen here.
If legitimate reasons have been indicated to the board, and this is the reason for complaint, when the board arrives at their final evaluation that this is why they did not receive over 50 per cent, then most fair-minded Canadians would want some kind of a process in place to provide justice to people.
Senator Kinsella: Minister, the principle you enunciated in your statement today was one of majority support.
Mr. MacAulay: That is correct.
Senator Kinsella: When your board conducts a representational vote pursuant to section 29(1) of the Canada Labour Code, there you can have a democratic measure, as would be conducted in a free and democratic society, of exercising a free vote.
In your bill, the principle is not the same. In your bill, the principle is: if this board has some expectation or an opinion that there might be a majority. It is not the same principle. One principle is based upon a representational vote; either pursuant to section 29 of the code for a representational vote or the mandatory vote. In this clause, the principle is where a board, an administrative tribunal, makes a judgment call. It does not have a vote. They are two different principles.
Do you think there is at least opposition here?
Mr. MacAulay: As the bill indicates, if they could reasonably have expected to have the support of the majority of the employees in the unit. What this provision does, as I indicated a number of times, is that if you can prove to a quasi-judicial board that unacceptable, unfair labour practices were used, then they have the authority to put in place what would have been put in place anyhow had the proper procedure been followed.
Senator Kinsella: Why is ordering a board-conducted vote not the appropriate remedy?
Mr. MacAulay: I would ask you: Does that change the environment where the vote is taking place? It is clear that this is not done as a matter of whim; this is used sparingly. What it does is protect both union and management. Most management teams conduct themselves fairly when there is a union vote. There must be a method in place in order to deal with unfair practices.
Senator Kinsella: That is why section 29 of the labour code is there. That is why we have a third party, a board. I think the remedy is wrong.
Mr. MacAulay: I will not convince you, senator. I understand what you are saying and I disagree.
Senator DeWare: Several times we have heard other jurisdictions that have this particular provision in their labour code. I do not attest to that.
I come from New Brunswick. My concern is that, as a federal government, you are laying laws for this country. We want to look up to you. We are part of the parliamentary system. We want you to do it right.
All through this we talk about unfair labour practices. We even talk about it with the replacement workers. However, we never say: "If the union does such and such, the board will intervene." Have you not heard of unfair labour practices among employees and union members? Perhaps I missed something.
Mr. MacAulay: Section 95 of the Canada Labour Code covers what you raised, and it should. Things work both ways. That is a good point.
Senator Kinsella: That does not apply to 46.
Senator DeWare: Does section 95 apply to 46?
Mr. MacAulay: Section 46 indicates clearly the other way, where management is not acting properly. Clause 46 indicates that no person shall seek by intention or concurrence to compel a person to become or refrain from becoming or cease to be a member of a trade union.
The only thing we want to do in the code is to ensure that it is fair both ways. Your point is correct, senator.
Senator DeWare: In clause 75, you reduce the deemed reporting time for the conciliation officer to 60 days. Why did you take away the minister's discretion to extend that time?
Mr. MacAulay: What it does is speed up the collective bargaining process. It was a request of both union and management that this happen. What we want and what I tried to do as Minister of Labour is to ensure that the collective bargaining process is on the front burner. I do not want to be making the decisions. We do not want the department helping or making the decisions, but they will assist. Would it be the proper interpretation for them to put their feet to the fire?
Senator DeWare: Yes.
Mr. MacAulay: They cannot come. The day has come when the 60 days are up. That is it. There is no way you can come to me and say, "We want a conciliation commissioner." We want to speed up the process.
Senator DeWare: Is it 90 days in the American jurisdiction?
Mr. MacAulay: My dear friend, I have troubles enough.
Senator DeWare: With your own area.
Senator Sparrow: I am still concerned and perhaps confused about the provision of the lack of evidence of majority support. If that is really the case, why would the board not go back and call another vote? It sounds simple to me. If something were wrong with the process, surely the democratic process could work. They could have a board-sponsored vote, where the members would have the independence to vote privately, to indicate what their support for unionization would be.
It is pretty simple to say "lack of evidence," but what lack of evidence? If the result were one vote short of a majority, and something happened that caused the board to believe that something was wrong, then call another secret-ballot vote.
Mr. MacAulay: Senator, you are right, partially. The board can call another vote, if it so desires.
Senator Sparrow: They have this alternative, and it is very simple for them to do.
Mr. MacAulay: They can. I am not prejudging what happens when there is a certification vote.
For example, if I am working for you, you may tell me quietly that if I vote for it, I am fired. I want to ensure that Canadians are not under that kind of pressure.
Senator Sparrow: That is why we have secret ballots in this process.
Mr. MacAulay: The labour board is in place. It evaluates everything that has been brought forward. If they feel there should be another vote, they can have it. If they feel that inappropriate action has taken place, then they have the right, and should have the right, to certify the union, because without this action, the union would have been certified.
Senator Sparrow: We do not know that.
Mr. MacAulay: We have people who have to make decisions in this country. That is why we have boards and judges.
Senator Sparrow: Is there an appeal process?
Mr. MacAulay: It is a matter of law.
Senator Sparrow: There is no appeal process?
Mr. MacAulay: The court of appeal, yes.
Mr. McDermott: A judicial review.
Senator Beaudoin: Is that the case?
Mr. MacAulay: The whole setup is such that fairness is the issue. We do not want a vote lost because of pressure by management.
This will be watched carefully. It is not new in this country. It just gives people a process that they can use if they are not treated properly. I am sure, senator, you being the fair man you are, you would not want any part of that.
Senator Sparrow: I think the democratic process of a secret ballot is the fair approach.
Mr. MacAulay: That is the general rule; you are absolutely correct.
Senator DeWare: I hear you talking about balance, minister, and that is important to me. Clause 16(2) of the bill amends section 34 of the act by adding the following:
(4.1) On application by one or more employers of employers in the bargaining unit, the Board may, if it is satisfied that the employer representative is no longer qualified to act in that capacity, revoke the appointment...
What about the employee? You say there is a balance. It talks about employers. It does not talk about employees in a bargaining unit.
Mr. McDermott: Clause 34 in the current code has sole application to the longshoring industry, where there are hiring-hall arrangements -- that is, the employees are in a pool and several employers use their services. In order for the employees to be able to bargain, the code requires that an employer representative can act as the employer and be responsible to respond on behalf of the employer. The issue is this: Can the employers who use that pool choose a representative and be able to change that representative once they feel that that representative is no longer serving the intended purpose?
That section relates totally to employer responsibilities. We are simply codifying many of the board and court process that took place in the St. Lawrence ports over a number of years. We are making it so that people understand the jurisprudence, and hopefully we will avoid this kind of court challenge in future. It provides solely to employers.
On the other side, when a trade union is representing employees, there are provisions in the code for the revocation of certification because a union loses support of the membership; the members no longer want a union or they want another union. That is already in the code.
Senator Kinsella: I want to thank the minister for his recognition of the problem of gender-neutrality in the language in which we draft legislation. We have to send to the Department of Justice drafters a signal of the importance of gender-neutral language when they are drafting a bill that requires us to open up another section of a statute.
Would you agree with me, minister, that the labour code, like the Human Rights Act and unlike many other statutes that really only lawyers and judges look at, is almost an educational instrument? There is more reason for your code, from start to finish, to be well drafted in neutral language, gender-wise, and perhaps even understandable language. Is it an educational tool as well as a statutory standard?
Mr. MacAulay: First, I appreciate your input.
Yes, I think you are correct. This act deals more directly than a lot of other areas of government with persons who understand and support fully where you are coming from. I think you know where I stand on this issue. In fact, I would not have the gall to go home if I did not understand this issue; I am married and I have three daughters.
The Chairman: Are there any further questions of the minister?
Mr. Minister, thank you very much. I am sure there are other places you would rather be, in the middle of the lobster season in Prince Edward Island.
Mr. MacAulay: Thank you, Mr. Chairman.
The Chairman: I understand that one or other, or both, officials are staying for clause-by-clause study of the bill.
Mr. McDermott: I hope to be of some assistance, Mr. Chairman.
The Chairman: Is it agreed that the committee move to clause-by-clause consideration of Bill C-19?
Hon. Senators: Agreed.
The Chairman: Shall the title be postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 1, on page 1,
(a) by replacing line 4 with the following:
"1.(1) The definitions of "Board", "conciliation"; and
by adding after line 15 the following:
"(2) The definitions "dependent contractor", "locked out", "parties" and "professional employee" in subsection 3(1) of the English version of the Act, are replaced by the following:
"dependent contractor" means
(a) the owner, purchaser or lessee of a vehicle used for hauling, other than on rails or tracks, livestock, liquids, goods, merchandise or other materials, who is party to a contract, oral or in writing, under the terms of which that person is
(i) required to provide the vehicle by means of which the person performs the contract and to operate the vehicle in accordance with the contract, and
(ii) entitled to retain for the person's own use from time to time any sum of money that remains after the cost of the person's performance of the contract is deducted from the amount the person is paid, in accordance with the contract, for that performance,
(b) a fisher who, pursuant to an arrangement to which the fisher is a party, is entitled to a percentage or other part of the proceeds of a joint fishing venture in which the fisher participates with other persons, and
(c) any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that the person is, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person;
"lockout" includes the closing of a place of employment, a suspension of work by an employer or a refusal by an employer to continue to employ a number of the employer's employees, done to compel the employer's employees, or to aid another employer to compel that employer's employees, to agree to terms or conditions of employment;
"parties" means
(a) in relation to the entering into, renewing or revising of a collective agreement and in relation to a dispute, the employer and the bargaining agent that acts on behalf of the employer's employees,
(b) in relation to a difference relating to the interpretation, application, administration or alleged contravention of a collective agreement, the employer and the bargaining agent, and
(c) in relation to a complaint to the Board under this Part, the complainant and any person or organization against whom or which the complaint is made;
"professional employee" means an employee who
(a) is, in the course of that employee's employment, engaged in the application of specialized knowledge ordinarily acquired by a course of instruction and study resulting in graduation from an university or similar institution, and
(b) is, or is eligible to be, a member of a professional organization that is authorized by statute to establish the qualifications for membership in the organization;
(3) Subsection 3(2) of the English version of the Act is replaced by the following:
(2) No person ceases to be an employee within the meaning of this Part by reason only of the person ceasing to work as the result of a lockout or strike or by reason only of the person's dismissal contrary to this Part.".
Attached, Mr. Chairman, is a version of that draft amendment in French. It is my understanding that a motion does not need to be seconded.
The Chairman: No. Do you wish to speak to that proposed amendment?
Senator Kinsella: Honourable senators, you should have in front of you a copy of the Canada Labour Code. If you look at your labour code and, in particular, at section 3, which is opened for amendment by clause 1 of Bill C-19, you will find, for example, in proposed clause 3(1)(b) that the terminology that is used is "fisherman." This amendment replaces "fisherman" with the term "fisher," which the drafters are now using in place of the gender-specific terminology that is currently contained in the code in that section.
It is important, honourable senators, for this committee to put these amendments on the record. We have heard from the minister. He agrees with the principle that we have argued. This committee has completed the work and it should be placed on the record. Hopefully, it will be adopted not only by the committee but also by the Senate. The effect is that the sections of the code that have been opened up will have been corrected.
The Chairman: Is there any discussion?
Senator Maheu: I should like to raise a point, possibly as a question, to Senator Kinsella, which may require a "yes" or "no" answer.
The items in the clauses that you have described, and you speak of gender-neutral, are in the act itself, not in the revised Part I of the act, is that right? The minister said that the gender issues are looked after at the time an act is opened. We have said it so many times and I keep looking for these words that are gender-objectionable in Part I of the act that we are reviewing today. Am I right, Senator Kinsella?
Senator Kinsella: Clause 1, on page 1, of Bill C-19 reads:
1. The definitions "Board", "conciliation board" and "conciliation commissioner" in subsection (3)(1) of the Canada Labour Code are replaced...
Therefore, that section of the labour code has been opened. In order for us to know what it is that we are dealing with, we are forced to go to that section of the labour code that has been opened up. In this regard, if you look at section 3(1) of the labour code, you will find, under "dependent contractor," (a)(i) and (a)(ii), the masculine terms "he" and "his." In particular, (a)(ii) reads:
(ii) entitled to retain for his own use from time to time any sum of money that remains after the cost of his performance of the contract is deducted from the amount he is paid...
Subsection (b) reads:
a fisherman who, pursuant to an arrangement to which he is a party, is entitled to a percentage of the other part of the proceeds of a joint fishing venture in which he participates with other persons...
It goes on and on.
Senator Maheu: I realize that.
Senator Kinsella: The amendment that I have proposed, senator, will clean that up. That is why I am moving it. We are a chamber for review, and that is my motion.
The Chairman: Is there any further discussion on Senator Kinsella's amendment?
Before I call the vote, I wish to be clear as to who are the members of the committee entitled to vote. The clerk will please read the names of the members of the committee as of now.
Mr. Blair Armitage, Clerk of the Committee: The Honourable Senators Comeau, Callbeck, Cohen, Cook, DeWare, Maloney, Stewart, Johnstone, Kenny, Maheu, Murray, and Kinsella.
The Chairman: All senators at the table are members of the committee.
Senator Kinsella: May I put on the record that I am here in my own capacity and not as the deputy leader ex officio.
The Chairman: I will put the question: Senator Kinsella moves that Bill C-19 be amended in clause 1, on page 1:
(a) by replacing line 4 with the following:
"1. (1) The definitions "Board", conciliation"; and
(b) by adding after line 15 the following:
The Chairman: Shall I dispense, Senator Kinsella?
Senator Kinsella: Dispense.
The Chairman: All those in favour?
All those opposed?
I declare the amendment defeated.
Shall clause 2 carry?
Senators, have you ever heard the "Litany of the Saints"? You are supposed to say "agreed." If you are agreed, instead of saying "pray for us" you say "agreed," and if you are not agreed you say, "Mr. Chairman," and I will recognize you for an amendment or a comment or a question or whatever.
I would ask Mr. Audcent to please come to the table and sit with me.
Shall clause 2 carry?
Senator Kinsella: Mr. Chairman, on clause 2, the part contained on page 2, I have nothing to say, but on page 3, I move:
That Bill C-19 be amended, in clause 2, on page 3, by replacing lines 17 to 19 with the following:
"(5) The chairperson, Vice-Chairpersons and two thirds of all other members of the Board must have experience and expertise in industrial relations.".
I so move.
The Chairman: Do you wish to speak to your amendment?
Senator Kinsella: Yes.
Honourable senators, this is the matter on which we had a short exchange with the minister. This matter has come up a few times. It came up at second reading and some of the witnesses raised it. The bill, as it reads now, in clause 5, only requires the chairperson and the vice-chairpersons to have experience and expertise in industrial relations. My concern is that, given what I believe to be extraordinary powers that will be given to the Canadian Industrial Relations Board, at least a majority, if not all, of the members of that board should have special expertise and experience.
My argument is that with respect to the Canadian Human Rights Tribunal it was government policy that all members demonstrate experience and expertise, and therefore Bill S-5, a government bill, incorporated that. At that time, some of us argued that that was not necessary, but the government argued vigorously that it was terribly important.
I can refer you to the record of the examination of witnesses and the debates on Bill S-5.
However, the government did succeed. Bill S-5 received, which received Royal Assent and was passed into law a couple of weeks ago, legislated that all members of the Canadian Human Rights Tribunal must be members of a bar.
I reviewed the argument and the evidence of witnesses on this point. It was argued that members of Canadian Human Rights Tribunal must know at least the fundamental principles of administrative law; but more important, they must be versed and comfortable with the principles of natural justice because of the importance of the kinds of matters to be dealt with in the field of human rights.
The Canadian Human Rights Tribunal does not have nearly the kind of override power that the Canadian Industrial Relations Board will have. I simply say the argument of the government on Bill S-5 applies a fortiori to this bill. We have listened carefully to the representation and argument of the proponents of the bill that they wanted this board to be representational. This is why the amendment that we are proposing is not that every individual member of the board must have that experience and expertise but, rather, that the chairperson, the vice-chairpersons and two-thirds of all other members must have experience and expertise in industrial relations. That is the argument that we advance to sustain this proposed amendment.
The Chairman: Thank you, senator. Are there comments on Senator Kinsella's amendment? Mr. McDermott, did you wish to speak?
Mr. McDermott: Not to say anything more than I said before when we appeared the first time about the origin of this. Do you wish me to clarify this?
The Chairman: Does the committee wish to hear from the Deputy Minister?
Hon. Senators: Yes.
Mr. McDermott: I think the object was that legal qualifications will form one of the elements of expertise, particularly labour law qualifications, for some of the neutral members, such as the chair and vice-chair. Indeed, the chair of the present Canada Labour Relations Board, who was recently appointed and is designated to head the Canadian Industrial Relations Board, is legally qualified.
There have been, Senator Kinsella, in the past, as I think you know, some very capable vice-chairs of the board who have not been legally qualified.
The object of the representational members not being listed under those qualifications is that they will come initially from names that we hope will be submitted by labour and management organizations, who will know whom they wish to represent them. In many cases, their practical experience of the industries they are in will be as important as, or more important than, their knowledge of industrial relations and labour relations.
The Chairman: Senators, are there other questions or comments on Senator Kinsella's amendment? If not, I will put the question.
Senator Kinsella moved:
That Bill C-19 be amended, in clause 2, on page 3, by replacing lines 17 to 19 with the following:
"(5) The Chairperson, Vice-Chairpersons and two thirds of all other members of the Board must have experience and expertise in industrial relations.".
All those in favour of the amendment will please signify by raising your hands.
All those opposed to the amendment will signify by raising your hands.
I declare the amendment lost.
Shall clause 2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 7 carry?
Senator DeWare: I have an amendment to propose. I move:
That Bill C-19 be amended, in clause 7, on page 12, by replacing lines 28 and 29 with the following:
"lective agreements respecting expiry dates, or amend other such."
We would be taking out "or seniority rights".
The Chairman: Do you wish to speak to that, senator?
Senator DeWare: Yes. Proposed section 18.1 gives the board a lot of powers. However, those powers exist without that clause being in there. Proposed subsection 18.1(2)(b) says the board:
may make any orders it considers appropriate to implement any agreement.
That means that if there is a problem in the agreement, they have the power there. If we look at proposed subsection (3), it reads:
If the Board is of the opinion that the agreement reached by the parties would not lead to the creation of units appropriate for collective bargaining or if the parties do not agree on certain issues within the period that the Board considers reasonable, the Board determines any question that arises and makes any orders it considers appropriate in the circumstances.
Everyone who understands labour relations will realize that seniority rights are a key to the terms of employment between workers and management. We have heard a lot about this. I just do not feel we need to have that in there. The board has the right to make orders dealing with this issue. We have had a lot of representation on succession rights and seniority rights. I would like to see that phrase removed, Mr. Chairman.
The Chairman: Thank you. Colleagues, is there any discussion or questions on this matter?
If not, I will put the question. Senator DeWare moves:
That Bill C-19 be amended, in clause 7, on page 12, by replacing lines 28 and 29 with the following:
"lective agreements respecting expiry dates, or amend other such".
All those in favour of the amendment will please signify by raising their hand.
All those opposed to the amendment will please raise their hand.
I declare the amendment lost.
Shall clause 7 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 9 carry.
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 12 carry?
Hon. Senators:Agreed.
The Chairman: Carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 14 carry?
Senator Kinsella: Mr. Chairman, on clause 14, I have an amendment to propose. Honourable senators, I move:
That Bill C-19 be amended, in clause 14, on page 14, in the English version, by replacing lines 8 to 16 with the following:
"14. Subsection 30(2) of the Act is replaced by the following:
(2) Where the Board orders that a representation vote be taken on an application by a trade union for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, the Board shall include on the ballots a choice whereby an employee may indicate that the employee does not wish to be represented by any trade union named on the ballots.".
I have attached the French version.
[Translation]
In French, the motion reads as follows:
That Bill C-19 be amended, in clause 14, on page 14, in the English version, by replacing lines 9 to 18 with the following:
14. Le paragraphe 30(2) de la même loi et remplacé par ce qui suit:
(2) Dans le cas où il ordonne la tenue d'un scrutin de représentation alors que l'unité en cause n'est représentée par aucun syndicat, le Conseil doit veiller à ce que les bulletins de vote permettent d'y indiquer leur désir de n'être pas représentés par le ou les syndicats qui sont mentionnés.
[English]
The Chairman: Do you wish to speak to that?
Senator Kinsella: Effectively, honourable senators, it is another gender-specific clause.
The Chairman: Thank you, senator. Are there comments or questions about this matter?
If there are no comments or discussion on the amendment proposed by Senator Kinsella, I will put the question.
It was moved by Senator Kinsella that Bill C-19 be amended in clause 14 --
Senator Kinsella: Dispense.
The Chairman: Shall I dispense?
Hon. Senators: Yes.
The Chairman: All those in favour of the amendment will please raise their hand.
All those opposed to the amendment will please raise their hand.
I declare the amendment lost.
Shall clause 14 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 15 carry?
Senator Kinsella: Mr. Chairman, I move:
That Bill C-19 be amended, in clause 15, on page 14, by replacing lines 30 to 37 with the following:
"(2) Subsection 33(3) of the English version of the Act is replaced by the following:
(3) Where an employer ceases to be a member of an employers' organization or withdraws the authority referred to in subsection (1) or (1.1) that the employer granted to the employers' organization, the employer
(a) continues to be bound by any collective agreement applicable to that employer's employees that was entered into by the employers' organization; and
(b) may be required to commence collective bargaining in accordance with section 48.".
Again, honourable senators, it is a desire on our part to facilitate the drafting and revising of this bill in gender neutral language.
The Chairman: Thank you, senator. Is there any further discussion on the matter? Hearing none, I will put the question.
It is moved by Senator Kinsella that:
Bill C-19 be amended, in clause 15, on page 14, by replacing lines 30 to 37 with the following.
"(2) Subsection --
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment will please raise their hand.
All those opposed to the amendment will please raise their hand.
I declare the amendment lost.
Shall clause 15 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 15 is carried, on division.
Shall clause 16 carry?
Hon. Senators: Yes.
The Chairman: Clause 16 is carried.
Shall clause 17 carry?
Hon. Senators: Yes.
The Chairman: Clause 17 is carried.
Shall clause 18 carry?
Hon. Senators: Yes.
The Chairman: Clause 18 is carried.
Shall clause 19 carry?
Hon. Senators: Yes.
The Chairman: Clause 19 is carried.
Shall clause 20 carry?
Hon. Senators: Yes.
The Chairman: Clause 20 is carried.
Shall clause 21 carry?
Hon. Senators: Yes.
The Chairman: Clause 21 is carried.
Shall clause 22 carry?
Hon. Senators: Yes.
The Chairman: Clause 22 is carried.
Shall clause 23 carry?
Hon. Senators: Yes.
The Chairman: Clause 23 is carried.
Shall clause 24 carry?
Hon. Senators: Yes.
The Chairman: Clause 24 is carried.
Shall clause 25 carry?
Hon. Senators: Yes.
The Chairman: Clause 25 is carried.
Shall clause 26 carry?
Senator Kinsella: Senators, after clause 25, still on page 19, at the end of clause 25, I move:
That Bill C-19 be amended, on page 19 by adding after line 44 --
The Chairman: Excuse me, senator. Do we have that in writing at the moment?
Senator Kinsella: We should have.
Senator Maheu: We do not have it in writing.
Senator Kinsella: This has been circulated.
The Chairman: A second set of amendments is being distributed. Senator Kinsella, I take it this is an addition to 49(1). Is this to be a new 49(2)?
Senator Kinsella: No. My motion is as follows:
That Bill C-19 be amended, on page 19 by adding after line 44 the following:
"25.1 --
Senator Kenny: A document has been handed out to us. So that the committee understands, does this document replace the earlier document that we had; and if so, can we find the appropriate page and place?
Senator Kinsella: It is three pages over in the thick document.
Senator Kenny: I have both.
Senator Kinsella: If you turn over three pages, you will see "New Clause 25(1)."
Senator Kenny: I am trying to determine which one is the thick document. They both seem thick from here.
The Chairman: On page 1, it begins "1.1 Section 8 of the English version of the Act..." If you go over to page 3, as Senator Kinsella suggests, you will see "New Clause 25(1), Page 19."
Senator Carstairs: Did we not pass clause 25?
Senator Maheu: We were on 26.
The Chairman: Senator, before I got to clause 26, Senator Kinsella intervened. I am trying not to do clause-by-clause too quickly.
Senator Kenny: I am trying to follow the script, but they seem to be changing scripts.
The Chairman: Go ahead, senator.
Senator Kinsella: I move that the following be added:
"25.1 Paragraph 51(1)(a) of the English version of the Act is replaced by the following:
(a) the introduction by an employer into the employer's work, undertaking or business of equipment or material of a different nature or kind than the previously utilized by the employer in the operation of the work, undertaking or business; and".
Chairman, that section, which is in the code, is again one of those gender-specific matters that we placed on the record.
The Chairman: Thank you, senator. Colleagues, do you have that amendment in front of you?
Hon. Senators: Yes.
The Chairman: Very well. Is there further discussion on Senator Kinsella's amendment? Are there questions you wish to ask about that amendment?
I shall put the question. Senator Kinsella moves that Bill C-19 be amended on page 19 by adding after line 44 the following --
Senator Carstairs: Dispense.
The Chairman: All those in favour of the amendment will please raise your hand.
All those opposed will please raise your hand.
I declare the amendment lost.
Senator Kinsella, did you have another amendment to clause 25?
Senator Kinsella: No.
The Chairman: Shall clause 25 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 26 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 26, on page 20,
(a) by replacing line 1 with the following:
"26.(1) The portion of subsection 52(2) of the"; and
(b) by adding after line 8 the following:
"(2) Paragraph 53(3)(c) of the English version of the Act is replaced by the following:
(c) where an employee is reinstated pursuant to paragraph (b), require the employer to reimburse the employee for any loss of pay suffered by the employee as a result of the employee's displacement.".
I so move.
The Chairman: Do you wish to speak to your amendment?
Senator Kinsella: I wish to say for the record that this is another gender-specific provision, which is contained in that part of the Labour Code that has been opened by Bill C-19, and clause 26 and really should be amended.
The Chairman: Thank you, senator. You have heard Senator Kinsella's amendment. Is there further discussion or questions? Hearing none, I will put the question.
Senator Kinsella moves:
That Bill C-19 be amended, in clause 26, on page 20,
(a) by replacing line one with the following--
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment will please raise their hand.
All those opposed to the amendment will please raise their hand.
I declare the amendment lost.
Shall clause 26 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 27 carry?
Hon. Senators: Yes.
The Chairman: Clause 27 is carried.
Shall clause 28 carry?
Hon. Senators: Yes.
The Chairman: Senator Kinsella?
Senator Kinsella: We are on page 21 of the bill, and we are after line three.
I move:
That Bill C-19 be amended, on page 21 by adding after line 3 the following:
"27.1 The portion of subsection 64(1) of the English version of the Act before paragraph (a) is replaced by the following:
(1) Every order or decision of an arbitrator or arbitration board shall be made or given within sixty days after, in the case of an arbitrator, the arbitrator's appointment, and, in the case of an arbitration board, the appointment of the arbitration board chairperson unless".
That is to clean up the gender-specific language.
The Chairman: Discussion?
All those in favour of the motion will please raise their hands?
All those opposed will please raise their hands?
I declare the motion lost.
Shall clause 27 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 27 is carried, on division.
Shall clause 28 carry?
Hon. Senators: Agreed.
The Chairman: Clause 28 is carried.
Shall clause 29 carry?
Hon. Senators: Agreed.
The Chairman: Clause 29 is carried.
Shall clause 30 carry?
Hon. Senators: Agreed.
The Chairman: Clause 30 is carried.
Shall clause 31 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 31, on page 22, by replacing line 27 with the following:
"31. (1) Paragraph 72(1)(d) of the English version of the Act is replaced by the following:
(d) notify the parties, in writing, of the Minister's intention not to appoint a conciliation officer or conciliation commissioner or establish a conciliation board.
(2) Section 72 of the Act is amended by".
I so move.
The Chairman: Colleagues, do you have that amendment before you in writing?
Hon. Senators: Yes.
Senator Kinsella: If honourable senators want to go to the code, they will find many instances where "he" and "him" are used. It is a gender-specific matter. It is important, in our review of the legislation, that we bring this poor drafting to the attention of all honourable senators.
The Chairman: Thank you, senator.
Are there other comments or questions?
Hearing none, I will put the question. All those in favour of the amendment of clause 31, please raise your hands.
All those opposed to the amendment will please raise your hands.
I declare the amendment lost.
Shall clause 31 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 31 is carried, on division.
Shall clause 32 carry?
Hon. Senators: Agreed.
The Chairman: Clause 32 is carried.
Shall clause 33 carry?
Senator DeWare: Mr. Chairman, I move.
That Bill C-19 be amended, in clause 33, on page 23, by replacing lines 33 and 34 with the following:
"75. (1) The Minister may extend the time".
Mr. Chairman, you have heard me speak to the minister about this. It is my opinion that the minister should have the discretion to extend the time. This bill does not give him that discretion. I am moving to take out the consent of the parties and add that the minister may extend. That is my motion.
The Chairman: Discussion?
Then I shall put the question. All those in favour of the amendment to clause 33 please raise your hands.
All those opposed, please raise your hands.
I declare the amendment lost, five to four in this case. I make no comment on it.
Senator Comeau: We are feeling better.
The Chairman: The motion to amend clause 33 is lost.
Shall clause 33 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 33 is carried, on division.
Shall clause 34 carry?
Hon. Senators: Agreed.
The Chairman: Clause 34 is carried.
Shall clause 35 carry?
Senator Kinsella: Mr. Chairman, I move:
That Bill C-19 be amended, on page 25 by adding, after line 24 the following:
"35.(1) Subsection 85(3) of the English version of the Act is replaced by the following:
(3) Where a person ceases to be a member of a conciliation board before the board has completed its work, another member shall be nominated and appointed in the members' place in accordance with section 82.".
I will speak to that briefly to say that it is another gender problem in drafting.
The Chairman: Thank you, senator.
Is there discussion?
I will put the question. All those in favour of the amendment of clause 35, please raise your hands.
All those opposed, please raise your hands.
I declare the amendment lost.
Shall clause 35 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 35 is carried, on division.
Shall clause 36 carry?
Hon. Senators: Agreed.
The Chairman: Clause 36 is carried.
Shall clause 37 carry?
Senator DeWare: I move:
That Bill C-19 be amended, in clause 37, on page 30, by adding after line 37 the following:
"(4) The Governor in Council may, by regulation, extend the application of the section in order to provide for the continuation of services normally provided to ensure the tie-up, let-go and loading of vessels for commodities other than grain and the movement of the vessels in and out of a port.".
We have had several witnesses before us complaining about the fact that grain should not be singled out to have this particular opportunity to be protected from stoppages. Through this amendment, we are giving the minister the opportunity to extend that to other commodities if he sees fit to do so.
There are other commodities which could be caught up in this, such as alfalfa and potash, which cannot be stored. Many people told us that you can stockpile coal and lumber. Alfalfa and potash cannot be stockpiled.
There may be an occasion when the minister would like to have that opportunity. We do not want to stop the grain, but we would like to give the minister the opportunity to extend the same courtesy to the other commodities.
Senator Kinsella: Honourable senators, this is one of those substantive issues where regional perspectives come to bear. I think it is our responsibility as senators to bring forward the concerns of our regions which would be adversely impacted by proposed legislation.
I support the principle in the bill as far as moving grain to market. I understand and agree with the government's desire not to have grain used as a trump card with regard to work stoppages on the West Coast. I understand that concern.
I am sure other honourable senators were surprised to learn that, of the commodities handled at the West Coast ports, grain constitutes less than 30 per cent. That was new information for me. I thought the figure was much higher.
However, I was impressed by the argument advanced by the witnesses from the stevedoring employers. They were concerned that, if only one commodity is allowed to move when there is a work stoppage or strike at a West Coast port, the employees may be able to prolong the work stoppage because, in addition to their strike pay they would have the advantage of working at the grain ports. That might be a disincentive for the ordinary dynamic during a labour conflict of the pressure of the cost of a work stoppage. It may be that this disincentive would keep a settlement from being achieved earlier than it could otherwise have been achieved.
Not very much grain is moved through the ports of Atlantic Canada. No grain is moved through the ports of Prince Edward Island, as far as I am aware. If grain is moved through there, it is an insignificant amount. The port of Saint John, with which I am more familiar, used to have operating grain elevators. There are no longer any.
The question I wish to raise is the impact on our economy with regard to potato producers in Prince Edward Island and New Brunswick who ship their product through ports in Atlantic Canada.
Senator DeWare mentioned potash. Potash is a major commodity that is now shipped through the port of Saint John. One must consider the durability of that commodity against the elements. It is always rewarding to see huge piles of potash on the dock in Saint John, because it indicates that the port is busy. However, potash cannot withstand adverse weather for long periods of time. I cannot help but be sympathetic to the concern of the producers of potash and the importance of good industrial relations at the dock.
This amendment gives the minister some flexibility short of back-to-work legislation. If I understood the argument that was advanced for giving the exemption to grain, which I support, it was that back-to-work legislation has often affected the port because of the need to ensure the movement of grain. If that is the argument, it seems to me that when applied to the East Coast it would be very wise to give that extra instrument to the minister. Therefore, I support the amendment proposed by Senator DeWare.
The Chairman: Thank you, senator.
There being no further discussion of Senator DeWare's amendment, I will put the question.
All those in favour?
All those opposed?
I declare the amendment defeated.
Shall clause 37 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 38 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried.
Shall clause 39 carry?
Senator Cohen: I move:
That Bill C-19 be amended, in clause 39, on page 31, by replacing lines 3 to 6 with the following:
"39. Paragraphs 89(1)(c) and (d) of the Act are replaced by the following:
(c) the Minister has
(i) received a notice given under section 71 by either party to the dispute, informing the Minister of the failure of the parties to enter into or revise a collective agreement, or
(ii) taken action under subsection 72(2)."
This is another example of gender-specific language in the Canada Labour Code, and we wish to continue to emphasize that it should be changed. There could be a time when the minister will be woman, and "his attention" would not be very effective.
The Chairman: Thank you, Senator Cohen. Is there further discussion?
Senator Kinsella: Senator DeWare was a former provincial minister of labour, as was Mrs. Robillard. This is not a hypothetical discussion.
The Chairman: Other comments, questions on discussions?
Senator Stewart: May I ask if you are going to propose an amendment to the next subclause of clause 39?
The Chairman: We have just heard a proposed amendment from Senator Cohen to clause 39 dealing with paragraphs 89(1)(c) and (d) replacing them with different language.
Does that answer your question, Senator Stewart?
Senator Stewart: I am not sure yet. I am looking at the bill, and subclause (d) of clause 89. They are amending the code, and I am looking at the code, which is the document to be amended.
Do you have an amendment to the next subsection? It would be 89(1)(d) on page 51 of the code.
The Chairman: He is replacing paragraph (d) in this amendment, Senator Stewart.
Senator Kinsella: This would replace "informing him" with "informing the Minister" in 89(c)(i), and in 89 (d)(ii) "notified the parties of his intention" is changed by the drafting.
Senator Stewart: I will take your word for it.
The Chairman: Is there any further discussion? We are dealing with an amendment moved by Senator Cohen that Bill C-19 be amended in clause 39 on page 31. Shall I dispense?
Hon. Senators: Agreed.
The Chairman: All those in favour? All those opposed?
I declare the amendment defeated.
Shall clause 39 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 40 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 41 carry?
Senator Cohen: Mr. Chairman, I move:
That Bill C-19 be amended, in clause 41,
(a) on page 31, by replacing line 41 with the following:
"41. (1) The portion of section 92 of the Act"; and
(b) on page 32, by adding after line 6 the following:
"(2) Paragraph 92(b) of the English version of the Act is replaced by the following:
(b) requiring the employer or any person acting on behalf of the employer to discontinue the lockout and to permit any employee who was affected by the lockout to return to the employee's duty; and".
That also relates to gender-specific language, honourable senators, in the Canada Labour Code.
The Chairman: Is there further discussion on Senator Cohen's amendment? Hearing none, I will put the question.
Senator Cohen moves that Bill C-19 be amended in clause 41. Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour? All those opposed?
I declare the amendment defeated.
Shall clause 41 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 42 carry?
Senator Kinsella: Honourable senators, I move:
That Bill C-19 be amended, in clause 42,
(a) on page 32,
(i) by replacing lines 7 to 12 with the following:
"42. (1) Subsection 94(2) of the English version of the Act is replaced by the following:
(2) An employer is deemed not to contravene subsection (1) by reason only that the employer
(a) in respect of a trade union that is the bargaining agent for a bargaining unit comprised of or including employees of the employer,
(i) permits an employee or representative of the trade union to confer with the employer during hours of work or to attend to the business of the trade union during hours of work without any deduction from wages or any deduction of time worked for the employer,
(ii) provides free transportation to representatives of the trade union for purposes of collective bargaining, the administration of a collective agreement and related matters, or
(iii) permits the trade union to use the employer's premises for the purposes of the trade union.
(b) contributes financial support to any pension, health or other welfare trust fund the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees; or", and
(ii) by replacing line 30 with the following:
"(3) Paragraphs 94(3)(b) and (c) of the English version of the Act are replaced by the following:
(b) impose any condition in a contract of employment that restrains, or has the effect of retraining, an employee from exercising any rights conferred on the employee by this Part;
(c) suspend, discharge or impose any financial or other penalty on an employee, or take any other disciplinary action against an employee, by reason of the employee's refusal to perform all or some of the duties and responsibilities of another employee who is participating in a strike or subject to a lockout that is not prohibited by this Part;
(3.1) Subsection 94(3) of the Act is amended"; and
(b) on page 33, by adding after line 5 the following:
"(3.2) Paragraph 94(3)(f) of the English version of the Act is replaced by the following:
(f) suspend, discharge or impose any financial penalty on a person employed by the employer, or take any other disciplinary action against such a person, by reason of that person having refused to perform an act that is prohibited by this Part; or".
The Chairman: These amendments have to do with gender-specific language.
Senator Kinsella: Yes.
The Chairman: There is another amendment that I would call a substantive amendment. I think I can treat this group of amendments as one amendment.
Senator Kinsella: Yes.
The Chairman: Is there discussion of the amendment that Senator Kinsella has just proposed? If not, I will put the question.
It was moved by Senator Kinsella that Bill C-19 be amended in clause 42 on page 32. Shall I dispense?
Hon. Senators: Agreed.
The Chairman: All those in favour? All those opposed?
I declare the amendment defeated.
I hope I am not getting ahead of myself, but I understand that Senator DeWare has another amendment to propose to clause 42.
Senator DeWare: That is right. I move:
That Bill C-19 be amended, in clause 42, on page 32, by replacing lines 19 to 24 with the following:
"(2.1) Where the use of replacement workers in a dispute is demonstrated to be for the purpose of undermining a trade union's representative capacity rather than the pursuit of legitimate bargaining objectives and is declared by the Board to be an unfair practice for that reason, no employer of person acting on behalf of an employer shall use the services of a person who was not an".
The Chairman: That is a substantive amendment.
Do you wish to speak to it, Senator DeWare?
Senator DeWare: I feel that this amendment has been brought to our attention by so many people that it speaks to one of the major concerns that has been raised in Bill C-19 and clause 66.
As it currently reads, clause 42 would introduce a ban on replacement workers that has the potential, depending on how it is interpreted by the Industrial Relations Board, to become a general prohibition. The amendment that I propose would prevent that from happening in Bill C-19, and is more in line with the spirit of the Sims report.
As you know, honourable senators, we have heard from the Canadian Labour Congress and the Canadian Labour Law Group. They have already made it clear to us that any replacement of a worker is wrong, as far as they are concerned. I do not feel that we can make that approach. We must clarify it. My concern is that, under the present wording, the board could interpret any use of replacement workers as being for the demonstrated purpose of undermining a union's representational capacity. Therefore, the wording must be changed.
You will look at it and say: What is the difference? There is a difference. They did not use the Sims report. We were asked over and over again if they would accept the Sims wording. This comes as close as we can get it, and it is very important. It is important to the employers out there, and it is important to demonstrate to people in this country that we are talking about our transportation and banking systems. We are talking about commodities that are important to the whole economic situation in Canada.
This is an important amendment, and I feel that we should seriously consider it. You will look at it and wonder what the difference is. The board can definitely interpret this to mean that there is a ban; that replacement workers are not allowed in during a dispute. We must seriously take this into consideration.
Senator Kenny: For a moment I thought that Senator DeWare would say it spoke for itself.
Senator Kinsella: May I ask the deputy minister a technical question? Do you have a copy that of the amendment which Senator DeWare has proposed?
Mr. McDermott: Yes.
Senator Kinsella: From a technical standpoint, would you have any difficulties achieving the draft's objective in the bill?
Mr. McDermott: I have only just seen the text. First, the current drafting is similar to other unfair labour practices found in the federal code and found in provincial statutes. That is the way they normally start. What I see here is a technical problem with this amendment. There is a risk that, where the board finds there is unfair labour practice, there will be no discretion as to the remedy. In the current code there is an element of discretion. The board may indeed find an unfair labour practice of the type envisaged in this section. The remedy is discretionary, however. The board may decide to say replacement workers can no longer be used, and it may decide something else. There is a problem here. There may be a prospect that it would take the discretionary remedy away.
Senator DeWare: It definitely says that. If it is found to be an unfair labour practice, no employer or a person acting on behalf of the parties shall use the services of another person. I cannot see where it does not give the board the discretion. I believe that it does.
It is a good motion, and I should like to see the members pass it.
The Chairman: Further discussion or questions? If not, I will put the question.
Senator DeWare moves that Bill C-19 be amended, in clause 42, on page 32, by replacing lines 19 to 24 with the following --
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment?
All those opposed?
I declare the amendment defeated.
Shall clause 42 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Senator Kinsella: I move:
That Bill C-19 be amended in clause 42,
(a)on page 32,
(i), by replacing lines 7 to 12 with the following:
"42. (1) Subsection 94(2) of the English version of the Act is replaced by the following:
(2) An employer is deemed not to contravene subsection (1) by reason only that the employer,
(a) in respect of a trade union that is the bargaining agent for a bargaining agent comprised of or including employees of the employer,
(i) prevents an employee or representative of the trade union to confer with the employer --
Senator Carstairs: We have already done that, Senator Kinsella. We did that first.
The Chairman: I do not think you can move the same amendment twice. That amendment was second in your documents, but you proposed it first.
Shall we proceed?
Shall clause 42 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 43 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 43, on page 33, by adding after line 23 the following:
"(2.1) Subparagraph 97(4)(b)(ii) of the English version of the Act is replaced by the following:
(ii) has not, within six months after the date on which the complainant first presented a grievance or appeal pursuant to paragraph (a), dealt with the grievance or appeal; and".
I so move.
The Chairman: Senator Kinsella, do you wish to speak to this amendment?
Senator Kinsella: No, I believe it self-evident if anyone has read the bill.
The Chairman: Any other questions?
Senator Kinsella moves that Bill C-19 be amended in clause 43 on page 33 by adding after line 23 the following:
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour?
All those opposed?
I declare the amendment defeated.
Shall clause 43 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 44 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 45 carry?
Senator Kinsella: I move:
That clause 45 be amended, in clause 45, page 35 of the bill, by adding after line 14, the following:
"(2.1) Subparagraph 99(1)(c)(i) of the English version of the Act is replaced with the following:
(i) employ, continue to employ or permit to return to the duties of the employee's employment any employee or other person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged for a reason that is prohibited by one of those paragraphs.
I so move.
In speaking to this, honourable senators, if you turn to section 99 of the code, I should like to point out to you that section 99(1) of the Canada Labour Code is under the heading "Board orders."
Throughout the labour code, you will find that the code speaks of the fact that the board may make any order. That word "order" is singular. In the bill before us, it states that the board may issue any "orders." I should like to call upon Mr. Audcent to give us some clarification about the use of the singular and the plural, when prefaced by "any."
I asked one of the legal witnesses if there was a difference in meaning when a board was being authorized to issue "any" order as opposed to the board being allowed to issue "an" order.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: I do not have the words in front of me but I can certainly comment on the language of "any" and the language of "order" or "orders."
"Any" is a word that is overused in legislation. It is a word that we should try to wean ourselves from, but it is not a wrong word in any way. "Any" can be used with a singular or with a plural. Obviously, it is discouraged to use it with a plural, but it can be used. To do so is not against any rule of drafting, and it is so used.
With respect to the singular and the plural, the Interpretation Act contains the provision that the singular includes the plural and the plural includes the singular.
Senator Kinsella: What are the conventions for the use of gender-neutral language in the art of drafting contemporary legislation?
Mr. Audcent: Honourable senators, all bills that come to you this year, or in these recent years, should be in gender-neutral language. I am fairly certain that I can assure you that all bills that come to you are in gender-neutral language.
The movement towards gender neutrality has been taking place over a generation. In the mid-1980s, the Department of Justice and the Government of Canada were looking at this. Some jurisdictions decided to have a strict rule. The Government of Canada, and the legislation section in the Department of Justice, had a more flexible policy, in their view, which was to discourage the use of the "he" that includes "she," but not to absolutely prohibit it. At exactly the same time, the Revised Statutes of Canada, 1985, were being draft and prepared. They were prepared within the philosophy that some flexibility still exists. There is no doubt that no one in the drafting field in the 1990s believes that that sort of flexibility still exists. No one would draft a "him" or a "his" including "her" any more. It is just not done. However, you have the legacy of the Revised Statutes of Canada that have their place in time. That time is behind us, but unfortunately they still contain the gender-specific, non-inclusive "him."
The Chairman: Are there other comments?
I will put the question, then. Senator Kinsella moves that Bill C-19 be amended, in clause 45, on page 35, by adding after line 14 the following --
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment?
All those opposed?
I declare the amendment defeated.
Shall clause 45 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 46 carry?
Senator DeWare: I move:
That Bill C-19 be amended
(a) on page 35, by deleting clause 46; and
(b) by renumbering clauses 47 to 97 as clauses 46 to 96, and any cross references thereto, accordingly.
The Chairman: It is a substantive amendment. Senator DeWare, do you wish to speak to this?
Senator DeWare: There has been a lot of discussion about the certification clause. A lot of people have called us and written us. We have also had a lot of witnesses discussing this. I have listened to the minister, and I have listened to the representatives from the department talking about this particular clause, and I am of the opinion that no trade union should be certified without a majority vote. Regardless of how that vote is taken, I do not think that our government is setting a proper standard for this country by putting this particular clause in this bill. I think that we must be above what the provinces think. I have heard that Ontario is rescinding its act to change this clause which in that act. I would suspect that this would have a lot of support across the country. I do not think that clause should be there, so I am moving my amendment.
Senator Kinsella: Honourable senators, I think that if the Senate does not amend the bill to remove that section, it will be a terrible blemish on our record.
The argument that we are bringing this in because several of the provinces have this kind of provision in their labour codes is the worst form of ad hominem argument that could be used.
Even in those jurisdictions where there is something similar to this, the fact of the matter is that it has never been tested against the standard of the Charter.
It is my view -- and I want it to be on the record that I predicted this -- that, if challenged, it will fail the Charter test. It will do so for the simple reason that it contravenes the right of freedom of association, which we, as Canadians, all enjoy. In fact, everyone in Canada enjoy the freedom of association, not just Canadians. There are only three rights in the Charter that are applicable to Canadian citizens. All the rights, including this right of association, apply to everyone in Canada.
From the time of Mr. Justice Rand in the pre-Charter era, the right of association was understood to include the right not to associate. However, the exception that Rand takes is that you do not have to associate, but you do have to pay the union dues.
In the post-Charter era, in the Lavigne case and others, the Supreme Court has always said that the right to association is reasonably limited. There is a reasonable limitation on the right in the collective bargaining situation.
However, the collective bargaining situation in which this is a reasonable limitation is a forced association that was based on a majority vote. Either the majority vote is expressed when the union sold more than 50 per cent of the cards to the majority of the eligible members, or the board conducted a representational vote and more than 50 per cent of the employees designated for that given bargaining unit voted in favour of it.
The limitation on our freedom of association, which the Charter recognizes in a free and democratic society, must pass the tests established in the Oakes case of proportionality and achieving the objective with minimal impairment. In this situation, the forced association is not based upon a majority vote, which will be clearly struck down on forced association, which is not permissible under our Charter, and this is not a reasonable limitation.
I place that on the record, and I want that struck down. I would encourage the senators to adopt this amendment, and to delete that provision. It is an unnecessary remedy. There are other remedies. By adopting this amendment, all we are doing is allowing the board to use other remedies, including the mandatory conducting of a representational vote.
The Chairman: If there is no further discussion of Senator DeWare's amendment, I will put the question.
It was moved by Senator DeWare:
That Bill C-19 be amended
(a) on page 35, by deleting clause 46; and
(b) by renumbering clauses 47 to 97 as clauses 46 to 96, and any cross references thereto, accordingly.
All those in favour of the amendment?
All those opposed?
Senator Kinsella: May I have a roll-call on that?
The Chairman: A roll-call has been asked for on this amendment. I have read the amendment. I do not have to read it again.
What I will do, therefore, is read the name of the senator, and the senator will reply "yea" or "nay."
Senator Comeau?
Senator Comeau: Yea.
The Chairman: Senator Callbeck?
Senator Callbeck: Nay.
The Chairman: Senator Cohen?
Senator Cohen: Yea.
The Chairman: Senator Cook?
Senator Cook: Nay.
The Chairman: Senator DeWare?
Senator DeWare: Yea.
The Chairman: Senator Stewart?
Senator Stewart: Nay.
The Chairman: Senator Johnstone?
Senator Johnstone: Nay.
The Chairman: Senator Kenny?
Senator Kenny: Nay.
The Chairman: Senator Maheu?
Senator Maheu: Nay.
The Chairman: Senator Murray does not vote.
Senator Kinsella?
Senator Kinsella: Yea.
The Chairman: Senator Maloney?
Senator Maloney: Nay.
The Chairman: I declare the amendment defeated.
Shall clause 46 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 47 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 48 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 48, on page 36, by replacing lines 1 to 3 with the following:
"48. Section 105 of the Act is replaced with the following:
105. (1) The Minister, on request or on the Minister's own initiative, may, where the Minister deems it expedient, at any time appoint a mediator to confer with the parties to a dispute or difference and endeavor to assist them in settling the dispute or difference.".
The Chairman: Thank you, senator. I take it that this is a question of gender-specific language.
Senator Kinsella: Yes.
The Chairman: Is there any discussion of Senator Kinsella's proposed amendment?
Hearing none, I will put the question. Senator Kinsella moves:
That Bill C-19 be amended, in clause 48, on page 36, by replacing lines 1 to 3 with the following --
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment?
All those opposed?
I declare the amendment defeated.
Shall clause 48 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 49 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 50 carry?
Senator DeWare: Honourable senators, I should like to move:
That Bill C-19 be amended, in clause 50, on page 37, by replacing lines 4 to 10 with the following:
"(a) seek the consent of each employee to the giving of their name and address to the representative of the trade union that the Board authorizes and, if the employee consents, transmit that name and address to the authorized representatives; or"
The Chairman: That is a substantive amendment. Do you wish to speak to it, senator?
Senator DeWare: During the discussion on both Bill C-66 and Bill C-19, there has been a grave concern about the privacy of off-site workers.
I believe that the Privacy Commissioner came before our committee on Bill C-66. He felt this provision was unconstitutional.
The word consent is not in this clause. It would be appropriate for us to ensure that these people give their consent. In this amendment, they could refuse to allow their names and addresses to be released to union organizers if they did not want them to be. They would not be given the opportunity to express consent to their release the way the bill reads. If each employee consents to the release of his or her name and address to the representative of the trade union that the board authorizes, and if the employees consents to the transmission of that information to the authorized representative, then it is simple. At least they have the consent.
This has been brought up many times. It is a new matter to start to organize off-site workers. I believe there was some discussion when the Sims group met as to whether or not we were ready to start organizing off-site workers. We heard from the Canadian Labour Congress the other night as to the importance of this measure. If they are willing to do it, then let us make sure they do it properly, and ask consent of the employees.
The Chairman: Is there further discussion of the amendment proposed by Senator DeWare? I believe you all have it in writing in front of you.
Senator DeWare moves:
That Bill C-19 be amended, in clause 50, on page 37, by replacing lines 4 to 10 with the following --
Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment?
All those opposed to the amendment?
I declare the amendment defeated.
Shall clause 50 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: I have a document in front of me which indicates that you have another amendment to propose, senator. Do you have another amendment to propose to clause 50?
Senator Stewart: You are coaching.
The Chairman: I am coaching. There are two amendments here, but I will carry on.
Senator Kinsella: What stage of the bill are you on?
The Chairman: Senator DeWare proposed an amendment replacing lines 4 to 10. It is not my job to tell you what to do. However, I see a document here seeking to amend clause 50, on page 36, by replacing lines 12 to 43.
Senator Kenny: There are a great many documents.
Senator Kinsella: I do not have it.
The Chairman: Shall we carry on, then?
Senator Kinsella: Clause 50 deals with communication with off-site workers, does it not?
The Chairman: Yes.
Senator Kinsella: In the seventeenth report of the Standing Senate Committee on Social Affairs, Science and Technology when it examined Bill C-66 in the last Parliament, the matter of privacy arose. This section before us is different from the section as it was originally drafted in Bill C-19, but which was amended in the House of Commons. We might need some technical information on this. However, it is my understanding that part of the Senate's recommendations on the issue of privacy were taken into consideration.
Senator Kenny: For clarification, the documents appear to be dealing with bills that were written at different times. I think that is what Senator Kinsella is telling us.
The Chairman: You do not have another amendment to clause 50, do you?
Senator Kinsella: I do not.
Senator DeWare: No.
The Chairman: We will move on, then.
Shall clause 50 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 51 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 52 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 53 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 54 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 55 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 56 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 57 carry?
Senator Cohen: Mr. Chairman, it is a new clause, 57.1, on page 39. I move:
That Bill C-19 be amended, on page 39, by adding after line 2 the following:
"57.1 Subsection 219(2) of the English version of the Act is replaced with the following:
(2) The members of a joint planning committee shall elect from among themselves two co-chairpersons, one being a representative of the redundant employees selected by their representatives and the other being a representative of the employer selected by the employer's representatives."
This is another gender neutral change to "chairperson" from "chairman" and "employer" instead of "his."
The Chairman: Do you wish to speak to this amendment?
Senator Cohen: It is just another gender neutral change that would like to see take place.
The Chairman: Is there further discussion of this matter? Hearing none, I will put the question.
Senator Kinsella: This is on Senator Cohen's amendment to section 57?
The Chairman: Proposed section 57.1, page 39.
Senator Kinsella: Yes.
The Chairman: Shall I put the question?
Senator Kinsella: Yes, please.
The Chairman: Senator Cohen moves that Bill C-19 be amended on page 39 by adding after line 2 the following -- shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment?
All those opposed?
I declare the amendment defeated.
Shall clause 57 carry?
Senator Kinsella: That was on the amendment, and now we are on the main motion?
Senator Cohen: That was on 57.1, the new clause.
The Chairman: As I read this, and as I am advised by my friend Mr. Audcent, there are two further amendments, which would have been consequential to Senator Cohen's amendment, but they are moot, because Senator Cohen's amendment has failed.
Senator Kinsella: You put the question on the amendment proposed by Senator Cohen?
The Chairman: I put that question, and then I asked, "Shall clause 57 carry?"
Senator Kinsella: I am raising another matter on clause 57.
The Chairman: Very well. Go ahead.
Senator Kinsella: I have a large number of amendments relating to gender-specific language that would come in at this point.
I would be moving the addition of some language after line 2, and what I have is quite different from what Senator Cohen proposed. There are several pages that speak to amendments, beginning with subsection 168 of the code. They are all of a gender nature. If colleagues opposite would agree, rather than read them all, I will present them. We can then give them to the clerk, and they can be entered into the record.
Senator Kenny: We would be happy to receive them in that form.
The Chairman: Do you propose to vote them collectively?
Senator Kinsella: Yes.
The Chairman: Is leave granted?
Hon. Senators: Agreed.
Senator Kinsella: These would be to add a section 57.1. I will hand them all to the clerk.
(For text of amendments, please see Minutes of Proceedings, p. 16:13 - 16:18)
The Chairman: You have them before you in written form, colleagues. These are amendments to section 57.1. Is there any discussion on these matters? Hearing none, I will put the question.
Shall these amendments to clause 57.1 carry?
All those in favour?
All those opposed?
I declare those amendments defeated.
Shall clause 57 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 58 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 59 carry?
Senator Kinsella: I move:
That Bill C-19 be amended, in clause 59, on page 39,
(a) by deleting line 20; and
(b) by renumbering paragraphs (g) to (k) as paragraphs (f) to (j) and any cross-references thereto accordingly.
The Chairman: Mr. Audcent tells me that this is consequential upon a previous amendment which was not carried.
Senator Kinsella: Yes, I see that now. I withdraw my motion.
The Chairman: Is leave granted?
Hon. Senators: Yes.
The Chairman: Shall clause 59 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 60 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Shall clause 61 carry? I am told that there is another consequential amendment to a motion which has already been defeated.
Shall clause 61 carry?
Hon. Senators: Yes.
The Chairman: Carried.
Senator Kinsella and colleagues, the amendments I have before me seem to end with clause 61. We have gone up to clause 62. I can continue on through clause 97, if that is your wish. I am told, however, that in the absence of any amendment, and in the absence of any discussion of any of these proposed clauses, it is proper for me to ask the committee whether or not clauses 61 to 97 carry. I will only put that question with leave.
Senator Kinsella: Mr. Chairman, I would recommend you put clause 62 forthwith. We can deal with that, and then we will return to your question.
The Chairman: Shall clause 62 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Senator Kinsella: I should like to speak to clause 62. I need clarification of a technical nature from Mr. Audcent, and also from the deputy minister.
Deputy minister, why do we need clause 62? Would you remind me, from a technical standpoint?
Mr. McDermott: Clause 62 on the Corporations and Labour Unions Returns Act has been tied to this bill because of the term "labour," for one reason. It does deal with another statute that has somewhat fallen into misuse, and is being repealed. Part of that statute is being repealed in one case to save about $300,000 a year on collecting information which is no longer used. Krishna Sahay is from Statistics Canada, and has more details about the nature of that statute.
The Chairman: I take it that labour unions will no longer be covered by that act.
Senator Kinsella: Can we ask for technical clarification from the representative of Statistics Canada to explain the data under the act as it is now is collected?
Mr. Krishna Sahay, Director, Industrial Organization and Finance, Statistics Canada: Under the Corporations and Labour Unions Returns Act, we principally collect data that relates to membership, gender information, industrial distribution, and the finances of the union.
For some period of time -- at least five years, which is as far back as I have examined the record -- we have had virtually no demand for the financial data as we publish it. The other statistical data -- that is, the industrial data, the gender data, and so on -- is of considerable demand and interest at an academic level. However, this act was first put in place in the mid 1960s.
Since then, we have instituted a number of new surveys which measure those things just as well or better. We went out and investigated. We talked to our users and our advisory committees about whether or not they needed the data. We decided that $300,000 could be put against our budget reductions over the last couple of years. That was and is the plan.
The Chairman: Unless I am mistaken, that act went through during the Diefenbaker years. I worked for the minister who brought it through, and I can tell you it was one of the very first attempts by the federal government to get a handle on the extent of foreign -- you say United States, in particular -- penetration of the Canadian economy in the private sector and labour unions. The bill was brought in to require these corporations and labour unions to provide that information.
We are being told that, in respect to labour unions, we have other, better ways of getting the information.
We are at clause 62. Senator Kinsella and colleagues have been offering amendments here. I can take you through it clause by clause or, if you prefer, I shall go in groups.
Shall clause 62 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Clause 62 is carried.
Do you wish me to put clauses 63 to 97 together?
Hon. Senators: Agreed.
The Chairman: Shall clauses 63 to 97 carry?
Hon. Senators: Agreed.
The Chairman: Clauses 63 to 97 are carried. Shall the title carry?
Senator Kinsella: I need clarification on this from the Chairman. Is this the last motion on the content of the bill then?
The Chairman: If the title carries, I will then ask if it is agreed that the bill be adopted. Then, if any observations are to be included with the report, I will ask for those.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: The title is carried. Is it agreed that this bill be adopted?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Kinsella: Can we have a recorded vote on that?
The Chairman: We will have a recorded vote. As previously, I will read the names of honourable senators.
Shall the bill be adopted?
Senator Comeau: No.
Senator Callbeck: Yes.
Senator Cohen: No.
Senator Cook: Yes.
Senator DeWare: No.
Senator Maloney: Yes.
Senator Stewart: Yes.
Senator Johnstone: Yes.
Senator Kenny: Yes.
Senator Maheu: Yes.
Senator Kinsella: No.
The Chairman: The bill is adopted, seven to four, and the names of those voting and how they voted will be carried in the official record.
Honourable senators, are there are any observations that the committee wishes to be included with the report when I table it tomorrow?
Senator Kenny: I move that we proceed in camera.
The Chairman: Yes. That would be the normal thing to do if we are to draft observations.
Shall we go in camera to consider some draft observations?
Senator Kinsella: This side has no objection to proceeding, notwithstanding the rules, in open forum. However, Senator Kenny is absolutely correct in requesting that.
The Chairman: We cannot go in camera to do clause-by-clause consideration, but it is quite normal to do report drafting or observation drafting in camera.
The committee continued in camera.
The committee resumed in public.
The Chairman: Honourable senators, while the committee was in camera, we drafted some observations which are agreed upon. When the Senate meets tomorrow, I shall table these, together with the report on the bill.
Honourable senators, is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried. Shall I report the bill without amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
There being no further business before this committee, we stand adjourned.
The committee adjourned.