Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 6 - Evidence - Meeting of March 12, 2008
OTTAWA, Wednesday, March 12, 2008
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-40, An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act, met this day at 12:07 p.m. to give consideration to the bill.
Senator David Tkachuk (Deputy Chair) in the chair.
[Français]
The Deputy Chair: Honourable senators, we will call the meeting to order. I welcome senators and members of the viewing public.
We are here today to begin our study on Bill C-40. My name is Senator David Tkachuk from Saskatchewan. Bill C- 40 intends to protect the civilian jobs of reservists working for federally regulated employers and the federal public service. The proposed bill would also cover reservists attending post-secondary institutions full-time by allowing them to retain their active student status in the Canada student loans program and exempting them from interest accrual and payment obligations while on leave.
This bill also seeks to amend the Canada Labour Code in order to provide employees with a right to job protection when they take a leave of absence without pay for service in the reserve force. It also prohibits discrimination in employment on the basis of reservist status. In the same vein, Bill C-40 amends the Public Service Employment Act, which governs the staffing process for the federal public service, to ensure that public servants have the right to reinstatement following an absence due to service in the reserve force.
On February 13, 2008, pursuant to the motion of the Government House Leader, the Honourable Peter Van Loan, Bill C-40 was deemed to have moved through all stages and was passed by the other place.
To speak to us today on the merits of Bill C-40, I am pleased to introduce to you the Honourable Jean-Pierre Blackburn, Minister of Labour. He was first elected to the House of Commons in 1984 and re-elected in 1988 as a member of Parliament. Accompanying the minister, we have two staff from Human Resources and Social Development Canada. I would like to introduce Hélène Gosselin, Deputy Minister of Labour, and Anthony Giles, Director General, Strategic Policy, Analysis and Workplace Information Directorate.
Minister Blackburn, welcome to the committee on such short notice. We are trying to show the efficiency of the Senate. I received a copy of the speaking notes and assume that other honourable members have also received them.
[Traduction]
Hon. Jean-Pierre Blackburn, P.C., M.P., Minister of Labour: Thank you, Mr. Chair. First of all, with your permission, I would like to introduce once more the person to my right, our new deputy minister in the Labour Program, Ms. Hélène Gosselin, as well as Mr. Anthony Giles, Director General of Strategic Policy.
Members of the Senate, it is a pleasure for me to appear before you all today. This is the third time in about 12 months that I have appeared before you; the first time was for the CN back-to-work legislation that was unanimously passed by the House of Commons and the Senate, and then for the Wage Earner Protection Program that protects employees' salaries when a company goes bankrupt. That again was passed unanimously by the House of Commons and the Senate.
I do not know if we will manage to go three for three. That, of course, all depends on you now.
I think that our bill really is an excellent one. You are of course aware that men and women in the reserve force are people who do not serve in the military full-time. They work in the private sector or in the federal public service, and then, one day, they choose to go to serve our country, to defend our values and our democratic principles. Sometimes, they even serve here in Canada, during storms or other such occasions.
If these reservists decide to go to serve our country in Afghanistan, for example, they leave their spouses and their children for a year or a year and a half, risking their lives, but not even sure that their jobs will be waiting for them when they return. In my view, that makes no sense. These people are risking everything for us and we provide them with no protection when they return.
So, that is the intent of our bill and it brings me now to the start of my more official presentation.
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People across this great country of ours take pride in the work and dedication of Canada's reservists. Reservists are members of a unique force. They stand and serve when called to protect Canada's interests at home and abroad. Today, many reservists are serving in Afghanistan.
Reservists come from every corner of this country and most of them have civilian careers or are students. They devote time and effort to serve their country on a periodic basis. Their missions can take them away from jobs and family, often for months at a time. When they come home from a mission, they return to their families and to their work as civilians. That can be a difficult transition in their life. Therefore it is important that we do everything that we possibly can to ensure that these brave women and men never have to worry about being penalized for serving their country after they return home.
While preparing this bill, I travelled from coast to coast to meet many of our reservists. I listened to them and I haven taken into consideration what they told me before this bill was tabled. That is why I am pleased to speak in favour of this bill today and to share with you details of our government's strategy for reintegration.
[Traduction]
Mr Chair, Bill C-40 proposes amendments to several acts, including to Part III of the Canada Labour Code, as well as to the Public Service Employment Act, the Canada Student Financial Assistance Act, and the Canada Student Loans Act.
I will take a moment now to explain what these proposed amendments would do. In federal workplaces, reservists employed in federally regulated industries such as banking, broadcasting, telecommunications and transportation, and reservists employed in the federal public service would be entitled to unpaid leave while participating in domestic or international operations.
Today, they must rely on the goodwill of their employers if they wish to take time off to train or to participate in domestic or international deployments.
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This bill aims to facilitate reservists' transition from deployments back to their civilian jobs. When returning from a mission, they would be able to count on being reinstated into the same or a comparable job. Most reservists have full- time civilian jobs. However, some 40 per cent of, or 12,000, reservists are students, including those who are attending post-secondary institutions full time.
Honourable senators, we know that student reservists often face challenges in balancing their education with their military responsibilities. We also know that reservists with student loans can face a real financial challenge when duty calls. Eligible reservists would not be charged interest or be required to start paying back their student loans while they are away from their studies on active duty.
[Traduction]
In workplaces outside federal jurisdiction, Mr. Chair, our efforts to stand up for Canada's reservists continue. We want to make sure that we also address the needs of those reservists who, as civilians, are employed in workplaces outside federal jurisdiction.
For many years, the Department of National Defence has been working to ensure a seamless transition for reservists who leave and return from full-time deployments.
The Canadian Forces Liaison Council works hard at educating employers and promoting the advantages of hiring reservists.
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Our strategy proposes ongoing federal-provincial-territorial cooperation pertaining to the reinstatement of reservists. There are now several provincial laws in place that ensure job protection for reservists. Six provinces currently have passed their own laws in this regard: Manitoba, Saskatchewan, Ontario, New Brunswick, Nova Scotia and Prince Edward Island. We hope there will be more. Our government will continue to work with all the provinces and territories. By working together, we can take a consistent approach. That is a great start. All reservists should have the same peace of mind in knowing they have a job to come home to, whether they are completing a training exercise or finishing a voluntary tour.
Honourable senators, I personally feel quite strongly about this issue. Indeed, all members of this government do. This was certainly reflected in a motion that was tabled in the Senate by my colleague, Senator Segal. He has been a champion of reservists for many years. In fact, he organized a meeting for me in January with members of the HMCS Cataraqui in Kingston, a valuable part of my national consultation.
Also, Senator Callbeck spoke in favour of this bill, which was passed unanimously at second reading in the Senate. In addition, an NDP member, Ms. Dawn Black, recently tabled a private member's bill in the other place to protect reservists' jobs. Reservists need to know they can count on broad support from Canadians of all stripes.
I believe it is the right thing to do. If we do not stand up for our reservists, they will be vulnerable to the possibility of losing their jobs. That would not be right. The women and men of Canada's reserves are performing a valuable service, and this bill gives us an opportunity to show our support and our appreciation.
The Deputy Chair: Thank you very much, Mr. Minister.
Before we begin, I would like to introduce the senators who have arrived. We have Senator Nancy Ruth and Senator Segal, both from Ontario. Senator Zimmer is from Manitoba. Both Senator Massicotte and Senator Dallaire are from Quebec and Senator Day is from New Brunswick.
I would like to use the prerogative of the Chair to ask the first question. Was the bill produced on consultation with the reservists themselves? Have you received any feedback from them as to how they feel towards this bill?
[Traduction]
Mr. Blackburn: I would say yes, I have consulted many reservists. I have travelled all across the country, through several provinces. I have met reservists on their various home bases and, in addition to my speech, I took about an hour to listen to their questions. By that time, the media had left the place where I was giving my speech. They were able to talk to me freely about what they hoped to see in this bill. Of course, a bill can never contain everything. But I would say that this truly reflects what I heard all across the country about this matter; our bill took it into account. I met several provincial ministers and exchanged views with them. Some had already tabled their bills; others did so after we met. I made them aware of what we were proposing. I should tell you that Mr. Harper, our Prime Minister, wanted it to be the labour minister who took the lead in preparing this bill since a number of departments were involved, like defence, human resources and others.
To answer your question, yes, we really consulted reservists before drawing up this bill.
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The Deputy Chair: Mr. Minister, I understand you have to leave at 12:45 p.m. However, your officials will stay for a few minutes if we need them.
Senators, we have 25 minutes. I ask you to please be crisp.
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Senator Massicotte: The bill has a lot of merit and I support the concept. I have some specific questions.
Reservists can be away and not covered by the bill if doing so would cause undue hardship to the employer. What are the criteria? Is it very easy for an employer to use this exception in the bill?
Mr. Blackburn: As we see it, an employer will not be able to act in a discriminatory way. He cannot refuse to hire someone using the excuse that the person is a reservist who will perhaps leave the job. But, at the same time, we wanted to leave a door open. If the employer loses an employee to a mission and if this has a major impact on his business, then he can refer the matter to the department who will review the situation. The exception is not the objective of the bill, the objective is to allow reservists, after six months on the job, to tell their employers that they are going to take unpaid leave.
The employer will have to provide no benefits, no pension fund will accumulate because the reservist will get all that from the military while he or she is serving. For the employer, there are no direct costs associated with the employee leaving, but we can understand that an employer may really be affected for some specific reason.
Senator Massicotte: In a small business especially, with a key person, a man or a woman who plays a critical role in that shop and then disappears for six months. What are the criteria when we say ``undue hardship''? Do they already exist? What specifically does the employer have to show? Is it easy to apply or does the procedure take months?
Mr. Blackburn: Please understand that this bill is a new one for Canada. Nothing like it has existed before. That is why the bill provides for the regulations to be changed as circumstances arise that we could not foresee. Put yourself in the shoes of the minister who gets a file like this. He is going to look at it long and hard. It is not just a question of writing a letter and everything is done automatically. It is the same as when someone comes to the Labour Program and asks not to have a health and safety committee for some reason or other. Every request is not necessarily granted because the minister gets a letter. We consider what the union thinks, we look at precedents, whether there is any danger or not.
I imagine that this will be the same. We want to make sure that these men and women who are risking their lives for us, who are defending our country, are protected and find their job waiting for them when they come back.
Senator Massicotte: The bill has a lot of merit and we owe it to those people. But, of course, the process must be quite simple and not be intimidating for employers.
I see that several provinces have already passed similar legislation and that Quebec is not one of them. Are they far behind? Employers and employees must clearly be treated equally. Quebec and some other provinces have not yet passed a bill like this.
Mr. Blackburn: I have had the opportunity to chat with minister Whissell, my provincial counterpart. I have spoken about the bill several times. Neither the government nor the minister responsible is opposed to a bill of this kind, as far as I am aware. It is normal for a minister to say ``Look, I will bring this forward and see how the cabinet reacts to the idea.'' But I would be lying if I said that Quebec was going its own way and did not want this kind of protection for its reservists. It is their prerogative.
Newfoundland is also somewhat open to the idea; their legislators are studying it right now.
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Senator Nancy Ruth: Minister, could you briefly give me the breakout of the age, sex, race and geography of who these reservists are, especially given that 40 per cent are students.
[Traduction]
Mr. Blackburn: I have nothing on age, but I can give you some statistics that will partially answer your question.
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Senator Nancy Ruth: Especially if they include gender.
[Traduction]
Mr. Blackburn: Unfortunately, I do not have that data, but I will still try to answer your question.
We have 74,000 reservists altogether. The Primary Reserve has 34,000 members who are ready to serve at any time. The Supplementary Reserve has 28,000 members. These are retired people who continue to provide services as needed. That is called the Supplementary Reserve. Then you have what we call ``the Rangers''. There are 4,200 at the moment. They provide support to our army or to the Canadian Forces in the most remote parts of the country. That is the breakdown of the groups we have.
I can also give you some statistics. British Columbia, 3,203; Alberta, 2,514; Saskatchewan, 801; Manitoba, 1,257; Ontario has the most, with 11,675, followed by Quebec with 7,751; New Brunswick, 1,417; Nova Scotia, 2,829; Prince Edward Island, 295; Newfoundland and Labrador, 1,077 and the Northwest Territories, 37, for a total of 32,983.
However, I do not have figures by gender. I imagine the majority must be men.
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Senator Nancy Ruth: They are probably White men, too.
Senator Segal: That is not fair.
Senator Nancy Ruth: Senator, I believe it is fair.
Senator Segal: I do not think it is fair.
Senator Nancy Ruth: Excuse me, you can do it later.
I am concerned that the Armed Forces is behind in terms of Canada's commitment to equity and equality; so this for me is a protection, again, for White men. I have other questions, though, which concern how these people are demobilized and put back into civil society.
I note that the bill allows for 15 days for mental health or whatever these reservists will need. Is this 15 days a year, once; or is it every year up to 15 days?
Anthony Giles, Director General, Strategic Policy, Analysis, and Workplace Information Directorate, Human Resources and Social Development Canada: The reference to 15 days in the bill is for the annual training of reservists.
The provision regarding rehabilitation of a reservist who is mentally or physically injured during his or her tour of duty is open-ended. It would depend on each particular case — the needs of the reservist in question.
Senator Nancy Ruth: Who determines the prescribed period?
Mr. Giles: The prescribed period for the annual training?
Senator Nancy Ruth: No; it says the annual training for the prescribed period or, if no period is prescribed, for a period of up to 15 days; and it includes treatment, recovery or rehabilitation.
Mr. Giles: The prescribed period could occur if regulations are passed to define what the annual training period would be. In the absence of a specified training period, the bill is written to provide at least 15 days, which, as we understand from our colleagues in the Canadian Forces, is the usual amount of annual training.
With respect to the rehabilitation, that is open. It will not be prescribed in any general way because that would not take into account the needs of particular reservists. It would be handled on a case-by-case basis.
Senator Massicotte: How long could it take? How long could a reservist be away from his work and still be protected? Could it be two years, three years?
Mr. Giles: Yes, it could be two or three years. There is a provision in the legislation that would permit the passing of a regulation to limit that if, down the road and based on experience, there was a feeling that some sort of limit needed to be imposed. For the moment, the way the legislation is written, there is no maximum limit prescribed on the amount of the leave.
As I understand it, a mission to Afghanistan, for example, calls for a lengthy period of training before going to Afghanistan, as well as a lengthy period of training there. Then when the reservists return, there is also a period of decompression, readaptation and so on before they leave the reserve. There is no set amount of time for those; it will depend on the circumstances.
Senator Nancy Ruth: Is there an expectation that the employer will have to carry some of the costs for the re-entry into civil society if someone is damaged?
[Traduction]
Mr. Blackburn: If someone is actually wounded on a mission, on an operation with the Canadian military, a period of time is, of course, provided for the person to recover and to get the appropriate care. Protection continues until they are back at work. The employer does not pay benefits. The employee is on unpaid leave. The employer makes no pension fund contributions either. The only thing that the employer continues to accumulate for the employee is his or her years of seniority.
A reservist has a period of four weeks after returning from a mission to get back to work unless, of course, he is wounded or has a health problem.
The members of the Canadian Forces here have provided the answer to your question about the number of women. Ten per cent of reservists are women.
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Senator Nancy Ruth: Are these reservists considered veterans after they have been to Afghanistan, for example, and if so, are all the rights that are available to veterans also available to them?
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Mr. Blackburn: I imagine that they must be considered as such, especially if they are wounded or things like that. The answer is yes.
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Senator Nancy Ruth: If the 40 per cent of reservists who are students are not charged interest on their student loans and are paid a tax-free salary, do you not think they are double-dipping in a way?
[Traduction]
Mr. Blackburn: No, in this sense: first, when a reservist is a student, we want to make sure that, when he gets back, he can continue his studies; second, six months after starting work, you normally have to start paying back your student loan and interest starts to accumulate. We want to make sure that a person who serves his country overseas has no interest and no repayment obligations on the loan. About 12,000 reservists, about 40 per cent, could be in that situation. We estimate the cost at $500,000 per year.
Senator Dallaire: Mr. Minister, this is the first time that we have had the opportunity to meet. Congratulations and welcome. I confess that I am taking a number of my reference points from Bill C-202 that Senator Segal presented and that I supported. A number of points in that bill appeared again in Bill C-45.
But there are some points that I would like to raise with you. Let me start with the one that really struck me. Before I provided my response to reading the bill, I took the opportunity to let some former reservists work through the content. One section remains problematic, not to say dangerous.
Here is my question. What is the incentive for an employer to hire a reservist? What kind of support will the government offer to an employer, especially a small business with six or seven people, when they lose one of those people who, as a reservist, has decent, not to say sought-after, training? That person surely has skills, leadership, technical skills, all assets provided indirectly to the company.
Nowhere in the bill can I see where an employer would want to do that. In your answer, you are going to tell me all about patriotism and serving the flag. From what I can see of industry, that is not going to get us very far. Look how quickly they are prepared to sell their companies to any Tom, Dick or Harry. Do you have any recommendations about that?
Mr. Blackburn: In my meetings and my dialogues with reservists, this comes up everywhere. They say that employers do not want to hire them when they find out that they are in the reserve because they can be called up to serve our country at home or abroad. We looked at what we could do to protect reservists; the way to do that is to write into the legislation that an employer cannot discriminate against a reservist just because he is a reservist.
The best solution is to amend our Canada Labour Code so that we know that protection is guaranteed. Of course, if someone said ``you are not hiring me because I am in the reserve,'' he could lodge a complaint with the human rights commission. What is the name of that commission?
Mr. Giles: In those circumstances, it would just be about the right to work.
Mr. Blackburn: He would have to file a complaint. That is the only solution.
Senator Dallaire: You are doing well. I am sorry that your schedule does not allow you to properly present such an important bill and that you cannot stay with us. I will not waste any more time, but a reservist comes a lot cheaper than a guy in the regular military.
You could have come up with incentives for SMEs where most of these people work. In the spirit of encouraging SMEs, you could have guaranteed salary or reduced taxes for the time that the person was away so that the employer could hire someone in his place to deal with the upheaval. You have done well in protecting the individual, but the employer gets nothing that I can see in your bill.
As a final word, the public service is the worst employer in the country. I notice that the amendments that you are proposing to the Public Service Act are minor, if not almost non-existent, when it comes to specifically speeding up the ability to protect the reservists who work for the federal public service.
Mr. Blackburn: Further to that, I would say that an employer with a reservist on the payroll has an employee who is very well trained and disciplined. Often, the employer takes advantage of that person's skills and that has a beneficial effect on other employees.
The same thing goes for the federal public service. Reservists who work in the public service are going to have the same protection as is offered to the federally regulated private sector, of course. There are 2,000 reservists under our jurisdiction, more in the provinces. That is why we are working with provinces and territories to achieve our goals.
We examined the question of a contribution to the employer and decided not to take that route. It is not clear that we could quantify it or know how far to take it. Given that it is unpaid leave, given that there are no benefits to pay and given the qualities that the workers bring from their training, we thought that the employer could absorb that.
[Français]
Senator Zimmer: I support the concept of Bill C-40, but I have one question. The reservist has to put in six months but has to give four weeks' notice first to his employer. Is there a loophole through which, during those four weeks, the employer could reclassify the position to one with fewer responsibilities and less pay so that the employer can comply with the other end of the law when the reservist returns?
[Traduction]
Mr. Blackburn: I am going to start the answer and then perhaps give the floor to Mr. Giles so that he can finish it.
For a reservist to be protected under our legislation, he has to have held the job for a period of six months. Then, he has to provide four weeks notice to his employer that he has to go to Afghanistan so that the employer has enough time to react.
Mr. Giles will give you more information on the second part of your question dealing with the regulations.
[Français]
Mr. Giles: I understand the concern about a reservist being reclassified or demoted in some way during that four- week period; that would be harmful. The bill includes a clause that is meant to protect reservists against any form of discrimination in training opportunities, promotions or hiring — indeed in any employment conditions. If an action of that nature was taken by an employer and it was clearly motivated by the fact that the person in question was a reservist, it would be illegal and thereby correctable under this legislation.
Senator Segal: My question relates to proposed section 247.97 in clause 1 on page 5 of the bill, which anticipates a series of areas where the Governor-in-Council can make regulations.
[Traduction]
When I look at the places where regulations are possible, they go some way to answering the questions that my colleagues asked about how certain parts of this bill would be applied.
[Français]
Can you share with us what the process of consultation will be relative to those regulations so that some of the concerns raised by Senator Massicotte and others may be addressed in that consultative process? That would give us a sense of confidence about how the bill might operate, should it be passed.
Mr. Giles: The development of regulations in the future, if necessary, would be based on two processes. First, the program itself will be watching carefully the experience under the legislation. For example, if the Minister of Labour begins to be inundated by representations by employers that they are feeling undue hardship because a critical person is volunteering to go on reservist leave, we will be monitoring that and then perhaps proposing regulations.
At the same time, the Canadian Forces Liaison Council, which is made up of employers from across the country, has, on a volunteer basis, worked hard to put in place a series of policies to assist reservists. They will be a second important source of information.
Should regulations then be thought necessary, they will be drafted and put out for public consultations. At that stage, not only those already consulted but any citizen in the country would have a chance to comment on and influence the final version of those regulations.
[Traduction]
Mr. Blackburn: The important thing, I think, is that, if indeed there are new regulations, the people involved will be consulted before anything goes into effect.
[Français]
Senator Segal: Should the Senate decide to pass the bill, what would you expect the normative period would be between signing into law and proclamation?
[Traduction]
Mr. Blackburn: As for protecting reservists, we think that things can move quite quickly.
But for student loans, it may take several months before the regulations come into effect. There is usually a delay of between four and six months for any regulations. We have discussed the matter with the people at the Wage Earner Protection Program and they confirm that there is always a delay.
But the protection of reservists can be accomplished very quickly.
Senator Day: Mr. Minister, thank you very much for having taken the initiative on this bill. I would like to talk about the National Defence Act, especially section 285, which provides the same kind of protection for reservists who are called out in emergencies. Are you aware of this section of the bill?
Why did you decide to draft this new bill rather than using a provision that has been on the books since 2002?
[Français]
Mr. Giles: On this I may defer to my colleagues from the Canadian Forces, but my understanding is that the provision to which you are referring applies only in the case of a declared emergency, which is a very narrow set of circumstances, important in itself. The present legislation expands that coverage to any operation designated by the Minister of National Defence, for example, the annual training and others specified in the legislation. The idea was to go beyond those existing provisions and provide wider protection.
Senator Day: Has section 285 of the National Defence Act ever been proclaimed into law? Have regulations ever been generated?
Mr. Giles: My understanding is that there have not.
Senator Day: That is my understanding as well. I remembered the section because I sponsored the bill in 2002 that contained it. The advantage of this was that it is under the National Defence Act and it applied across Canada to all industry, whereas Bill C-40 applies only to industry over which the federal government has jurisdiction.
Why did you make that policy decision rather than generating regulations that explain ``emergency''? Surely our fighting in Afghanistan could be described as an emergency if you generated the regulations as such. I would like to understand the policy reason for taking a more restricted area-of-application approach. The Canadian Forces Liaison Council was very excited when this new section was generated. I have waited for six years for something to happen on it, and now it seems to be bypassed.
Mr. Giles: I cannot comment on why legislation that falls under the Minister of National Defence has not been proclaimed or regulations elaborated. I would defer to my colleagues from the Canadian Forces on that.
Senator Day: Could the minister help us with the policy?
[Traduction]
Why did you decide to proceed with Bill C-40 rather than using the National Defence Act?
Mr. Blackburn: Bill C-40 involves several departments. We had to discuss the matter with Human Resources and Social Development Canada as well as with the Department of National Defence. Under the Canada Labour Code, it is up to the minister of labour to make certain amendments to some legislation. This is why it was our responsibility to act on this. At the Labour Program, we regulate industries such as banking, telecommunications, and everything to do with air, land or sea transportation, even cross-border transportation. We have to deal with the areas in our jurisdiction.
This is why it was important for the federal minister of labour to hold parallel discussions with provincial and territorial departments of labour so as to make sure that we all prepare things together.
For example, when I went to Manitoba, I found out that they had already moved forward with their legislation. When I went to New Brunswick, I arrived in a municipality where they had already taken steps to protect their own reservists. So we already had some examples. And they were happy when they saw our federal initiative because they could see that all the provinces were proceeding in the same way.
Senator Day: When you decided to draft Bill C-40, were you aware of the existence of section 285 of the National Defence Act?
Mr. Blackburn: Consultations were held with the Department of National Defence who partnered with us in developing the bill.
[Français]
The Deputy Chair: Minister, maybe you can give us a couple more minutes.
I have to say that the minister was here right at twelve o'clock, so I will take full responsibility for the fact that we called a meeting at twelve o'clock. Of course, national caucus day is Wednesday, and they sometimes do run after 12 p.m., so we did not get started until 12 minutes after.
Senator Dallaire, if you have another question, please proceed.
I had cut Senator Dallaire off after two questions and I gave Senator Day a little more latitude.
Senator Dallaire: Thank you very much, Mr. chair.
[Traduction]
Senator Dallaire: Mr. Minister, with regard to the process of drafting regulations, I am assuming that they were drafted not only in cooperation with the Department of National Defence and the Labour Program, but also with the Department of Veterans' Affairs. We know that those people, even if they are not physically wounded, can all end up suffering from psychological wounds — and they sometimes appear three, four, five years later.
I feel that, as the regulations are being developed, the provisions of the new Veterans' Charter ought to be specifically considered. That brings me to the subject of regulations. Say that an employer says that such and such a reservist has now left several times, and he would like to discuss it with you. We do not have an army of mercenaries, we use our own people.
The reservist is going off on a mission as a soldier. When he comes back, he is still in the reserve. He is going to be wanted again because of his experience. Perhaps he will be a sergeant in the next mission. It is the same for officers, captains, majors.
So it is more and more possible that reservists going back to missions will continue to develop and to take leadership positions. In a ten-year period, they may well go off three or four times. And if we do not get more soldiers into the Canadian Forces, it could well be even more frequently.
When regulations are established, is it possible to leave out the pejorative tone of regulations for employers that says something like: ``they are normally going to leave twice, and, if it is a third time, we are the ones losing all kinds of experience.''
Mr. Blackburn: When regulations are established, it is done in conjunction with the people affected. In addition, regulations are published in Part I of the Canada Gazette. At that point, stakeholders and the public have a period of 30 to 45 days to submit comments on the regulations.
The comments submitted are compiled before we proceed with the final version. I think that your comments make a lot of sense. When you mentioned Afghanistan, you said that not enough reservists were called up. At the moment, for example, there are 350 reservists in Afghanistan and soon we will be sending about 500.
You are correct to say that recruiting is not always easy, even if the recruitment process is working well.
Senator Dallaire: That should be a tool to encourage recruitment and not just to protect those who are recruited. We must open the door and show something very positive in order for young people, or not-so-young people, to join up. The way in which this bill is written does not reflect the desire to recruit more people into the reserve. On the contrary, it is seeking to protect the status quo.
Once more, I bring you back to the fact that incentives were not necessarily examined closely when the bill was drafted. If we cannot find something more positive in the bill, perhaps we should look for it in the regulations.
Mr. Blackburn: Thank you for your comments.
[Français]
The Deputy Chair: Do you have time for one more question, minister?
Mr. Blackburn: Yes.
The Deputy Chair: Go ahead, Senator Day, so that nothing has been left unsaid.
Senator Day: I appreciate the opportunity to bring one point forward that has not been dealt with. I thank you both for mentioning the Canadian Forces Liaison Council, because if you want to know anything about support for the reserves, you go to that council, which I am sure we will be hearing from before we finish the hearings here.
I have been involved with the Canadian Forces Liaison Council since it had another name, for at least the last 25 years. One of their concerns in not proposing this kind of legislation is that it could possibly result in someone not being hired in the small- and medium-sized enterprises. If someone is in the reserves, the employers say that they will be obligated to try to fill in when that person goes off on deployment, and so they do not hire them. I noticed what you put in proposed section 247.96.
[Traduction]
No person may refuse to employ a person because they are a member of the reserve force.
[Français]
That is good, but it is indirect. How do you prove this? Two people are saying they want to be employed, and the employer says, ``You are in the reserve. That is very nice. Congratulations.''
The reservists know in the back of their minds that they will be subject to this requirement, and in a small business, it is a difficult requirement.
How do you handle that? When you spoke with the Canadian Forces Liaison Council, how did you bring them around on this issue?
[Traduction]
Mr. Blackburn: From the moment a complaint is filed, people in authority will have to examine the complaint and decide if there was real discrimination or not. Of course, it is senior people who are going to have to make the decisions, in the same way as is done presently for other complaints.
We think that the best way to protect our reservists is to make sure that an employer cannot refuse to hire a reservist on the supposition that the employee may be leaving in six months. This is our goal behind everything and the mechanism will play its role.
Senator Day: Are your legal counsel satisfied with this paragraph in Bill C-40?
Mr. Blackburn: When we worked on the bill, it really was in consultation with reservists. I visited several locations and I can tell you that, each time, people had the opportunity to ask me questions, to give me their comments and to tell me what they wanted.
We asked ourselves this: ``Yes, but if I think I am being discriminated against, how long will it take for me to get an answer?'' Some things do not have a yes or no answer because each case is looked at on its own merits. If someone has gone to 12 employers and files 12 complaints that he has been refused employment at 12 places, there is a process in place and it will be followed according to the circumstances.
That is our objective. We really want employers to know that they cannot refuse to hire someone because he is a member of the reserve. I can even tell you that, for employers, it is a source of pride at the moment to support people in the reserve and in the military. Canadians, including employers, are changing their perceptions from those they once had.
They are seeing reservists differently and realizing that these people are risking their lives. In my home in Lac Saint- Jean, the reserve came to help when we had the floods. They did in Toronto, they did in Montreal during the ice storm.
This is why the Department of National Defence will say: this situation is seen to be worthy of being made into law because the job the reservists are doing is seen to be worthy by the Department of National Defence.
[Français]
The Deputy Chair: Thank you very much, minister.
Honourable senators, our next witness is from the Department of National Defence: Brigadier-General Linda Colwell. She joined the Canadian Forces in 1973 as a generalist logistics officer. She served on bases and wings across Canada and at National Defence Headquarters within the food service, supply, finance and HR specialties. She was appointed as the director general responsible for personnel policy and requirements on April 1, 2006, and has since assumed responsibility for military personnel strategy, strategic integration and coordination across personnel lines of operation.
Brigadier-General Colwell is the department's expert on Bill C-40 and has played an instrumental role in drafting the legislation and consulting with other government departments.
Brigadier-General Linda J. Colwell, Director General Military Personnel, Department of National Defence: Thank you, sir. As Director General of Military Personnel, I am responsible for personnel policy development for all of the Canadian Forces and for our requirements planning — getting the people to fill the slots.
I have been working closely with the Minister of Labour's staff and other departments and their staffs throughout the development of Bill C-40. I would like to begin by expressing, on behalf of the Canadian Forces, our thanks to the Minister of Labour for leading the process. Many others were involved, and my thanks to them as well. We thank them for listening to our concerns and for addressing them. Bill C-40 is a model.
[Traduction]
I emphasize the word ``model'' because it recognizes the sectors from which our reservists come, whether they be students, public servants, or private sector employees. It recognizes the somewhat unique terminology of the Canadian Forces and, as a result, actually sets out the voluntary aspects of service in the reserve needed to fulfill the requirements of ``obligatory service'' under the section of the National Defence Act.
[Français]
Significantly, in addition to a prohibition applicable to selecting against existing employees who are reservists in employment practices, Bill C-40 also has a future prohibition section that removes the risk of employers selecting against reservists in their hiring practices. It is not perfect, but it is certainly a leap in the right direction.
[Traduction]
As you know, six provinces, Nova Scotia, Manitoba, Saskatchewan, Ontario, Prince Edward Island and New Brunswick, have passed legislation on job protection for reservists who are deployed or absent from civilian work for long periods. The federal model of job protection should serve to shape the legislative process of the other provinces and territories and the amendments to legislation already in effect.
[Français]
As a reinstatement strategy, the bill goes further than simple job protection. There are two significant improvements over similar legislation already passed or proposed of which I am aware. First are the amendments to the Canada Student Financial Assistance Act and the Canada Student Loans Act. Under those amendments, reservists having student status will be exempt from making payments, of either interest or principal, throughout their pre-deployment training, their actual deployment and for a period upon their return.
[Traduction]
That is important for reservists who are students. We estimate that 40 per cent of the 33,000 members of the Primary Reserve are students.
[Français]
The second improvement, the changes to the Public Service Employment Act, applies to federal public service employers and employees.
[Traduction]
That is important for reservists who are public service employees. We estimate that 20 per cent of the members of the Primary Reserve are public servants, perhaps half of whom are federal.
[Français]
Since Bill C-40 will compel employers to provide time away for military service, some may think that it is all that is required. Under the law, that is indeed enough. However, since the reserve provides the Canadian Forces footprint in the community at large, it is important to us that the employer-reserve employee relationship remain positive. The Canadian Forces wants to continue to solidify relationships with employers. Indeed, it is our goal that employers will want to, not just have to, support the reserve and hence the entire Canadian Forces.
In the building relationships, I want to acknowledge the ongoing work of the Canadian Forces Liaison Council. That work remains an essential part of our reinstatement strategy. Liaison council members continue to work with employers and with reservists to help each understand the other and to encourage reasoned give and take and a continued spirit of cooperation. The council's work on projects with the three levels of government, its post-secondary education project, its unit and redeployment briefings, its targeted ExecuTreks and other initiatives are worthwhile and much appreciated.
[Traduction]
Thank you for this opportunity to discuss Bill C-40 and its importance for the Canadian Forces. Thank you for your interest in my comments; I am ready to answer your questions.
[Français]
Senator Day: Thank you, Brigadier-General Colwell. You were here for the question that I posed earlier in regard to the Canadian Forces Liaison Council and their position on this legislation. I spoke of my involvement with the council in the earlier question.
The Canadian Forces Liaison Council is a non-military volunteer organization of individuals who are interested in the military. They were concerned that creating legislation like what we are proposing in this bill might indirectly cause reservists to lose out on opportunities. The council is always looking for cooperative approaches as opposed to a legislative approach.
Can you comment on the current position of the Canadian Forces Liaison Council?
Brig.-Gen. Colwell: It is difficult for me to speak for the Canadian Forces Liaison Council. However, from my dealings with them, I think they are still working in a cooperative nature. Their work may change with the legislation. They will be working with both employers and employees to determine when is the best time to go forward. They will have a safety net, because, when all else fails, there is still the law.
Senator Day: This may or may not be law. Do you know the position of the Canadian Forces Liaison Council on whether this should become law?
Brig.-Gen. Colwell: I do not know, sir.
Senator Day: The question I had earlier was about the National Defence Act and the legislation that was passed in 2002. Can you tell us why that has not been implemented and why there have been no regulations generated under that for the last six years?
Brig.-Gen. Colwell: The section of the National Defence Act to which you refer deals with the defence of Canada. As I indicated, it refers to obligatory service under an emergency as defined in the act.
Senator Day: I think it is defined in the regulations.
Brig.-Gen. Colwell: ``Emergency'' is defined in the act. The definition is very narrow with respect to what is classified as an emergency. I cannot quote it to you right now, but it is narrow.
We are prepared for such an emergency, and if we had to, the government could put in place an order-in-council to do it. However, at this point, as a defence measure under federal jurisdiction, it is hard to write the regulations applicable within the provinces.
On the other hand, because Bill C-40 deals with labour, the normal activity can go forward.
Senator Day: That is because Bill C-40 deals with labour only with respect to federally regulated industries, as opposed to the National Defence Act, which deals with all industry throughout Canada.
Brig.-Gen. Colwell: That is correct. However, the nature of the emergency could require the mobilization of the entire country under the National Defence Act. With respect to labour, constitutionally, the federal government can deal only with federal labour issues and the provinces deal with provincial labour issues.
The labour minister has been consulting with labour representatives from the various provinces. In fact, he invited us to come to one of his consultation meetings.
Senator Day: I appreciate your comments. Thank you.
Senator Segal: I assume that because of your role in the Canadian Forces you also deal with other regulations that relate to your employees, both military and civilian. I hear the comments, raised in good faith by colleagues, about whether this would result in discrimination against people who are be members of the reserve when they apply for work. Did we not hear this same narrative 25 years ago when people suggested that there should be pregnancy leave? People suggested then that people of child-bearing age would not be hired. Do employers not have an obligation now to respect the rights of employees who apply for pregnancy leave or compassionate leave? Businesses now respect rights for other categories of leave; are we not just asking for the same measure of respect for members of the reserve? Am I oversimplifying or being unfair?
Brig.-Gen. Colwell: You are right.
Senator Segal: My second question is a bit more complex. I have had some emails from members of the reserves across the country who have raised interesting technical issues. One reservist — I will not say where he or she is from — was informed, prior to deployment to Afghanistan, that training requirements plus the potential time of deployment could exceed a year, all in. The bill has a provision, and the company for which this individual works also has its own provision for up to a year's leave. What happens if the period of time exceeds a year, through no fault other than the nature of the deployment or the specific training required due to the nature of the particular reservist's role? How would the bill address that? Would it be a regulatory matter, or would we have to say that this bill cannot cover every circumstance and we have to live with that? How would you advise the government to proceed on that kind of matter?
Brig.-Gen. Colwell: It is my understanding that either in the legislation or in the proposed regulations it would be 18 months.
Senator Segal: Thank you.
Senator Dallaire: That last response is most appreciated, because the average now is about 18 months when you consider pre-training, deployment and post-training.
If an individual is being accommodated, for example because they were injured for two or three years while working within the forces, we heard that that person would still be able to be reabsorbed; this legislation would still cover and protect them. Am I correct?
Brig.-Gen. Colwell: I believe you are correct, sir. We have been working on the regulations that would provide for that. The only question we have is how much is enough. When would we be able to say, ``This employer has done two, three, or some years.''
From the Canadian Forces' perspective, we will be keeping our people. As long as they are in the recovery stage, we will be providing them the service and then working with Veterans Affairs Canada to ensure that they are re-stabilized as they move forward.
Senator Dallaire: This brings me to the question of staffing. Proposed section 247.94 reads:
Subject to the regulations, if an employee is not able to perform the functions of the position that they occupy before the leave begins — or those of a comparable position, with the same wages and benefits and in the same location — the employer may assign them to a position with different terms or conditions of employment.
This is if a person is injured, for example. Is there a link between that proposed section and the New Veterans Charter, whose mandate is to help an injured person to be reintroduced into the workforce and to be retrained? Is there a link there with the employer to ensure that this person actually is re-employable at that place? If you have an injured person, is that company free to accommodate them later on?
Brig.-Gen. Colwell: If I understand you correctly, there is a partnership now with the Canadian Forces and Veterans Affairs to make sure people who are leaving the Canadian Forces are getting help with reintegration, training and job search — everything that they would need.
Under this bill, if the individual is able to go back to their job or to some sort of an accommodated job, depending on the nature of the injuries, then the company or the business would be responsible for that reintegration. The Veterans Affairs vocational training, and so on, would still kick in.
Senator Dallaire: Yes, but the phrase ``the employer may assign them'' gives the impression that the employer has an out that you may want to lock up in a more structured fashion. You might state that the employer ``will'' participate in retraining a person to go back to where he or she enjoyed previous employment, instead of leaving that open. That one could be tighter.
I would like to know a bit more about the staffing process within the Department of National Defence and the matrix you used to get the input you needed to go through this law, let alone the procedures currently.
Are the Assistant Deputy Minister (Human Resources — Civilian) and the Union of National Defence Employees aware of this exercise? Did they have any input at all? Have the three services, personnel branches, looked at this? Has the Chief of Reserves and Cadets had input into this? Has the head of recruiting services looked at whether this bill will encourage recruitment or whether there might be a possibility of people not readily being employable? Although reservists bring certain qualities to an employer, there are hassles, including the issue of the employer not having any compensation while a reservist is gone, and that might create an atmosphere in which it might be nearly impossible for a 21-year-old to prove that she or he has been slighted because of being in the reserves.
What has been the matrix of staffing, and what inputs on the bill have gone through you?
Brig.-Gen. Colwell: I work for the Chief of Military Personnel, which used to be the Assistant Deputy Minister (Human Resources — Military). We have had representatives from the civilian side of the department in our consultation process and meetings. We have also worked with the staff of the Chief of Reserves and Cadets in putting together the context of the things that we thought should be in the bill as we talked with the other departments. The chief of recruiting works for my boss, the Chief of Military Personnel. We are on line within the group with respect to what we need in this area, as in all of our other personnel policies.
Regarding the personnel sections of the environment, we have a monthly session with all of those key players where we discuss these issues. We have discussed the reserve job protection every month for the last six months.
Senator Dallaire: This has been staffed thoroughly within the department and all those different areas?
Brig.-Gen. Colwell: I believe it has, senator.
Senator Dallaire: In that staff process, has no commentary about this proposed legislation come forward from the honorary colonels in the reserve world? Have you received anything from that significant gang that influences the reserves?
Brig.-Gen. Colwell: I do not know where the Chief of Reserves and Cadets got all of his input, but I did not talk directly to the honorary colonels.
Senator Dallaire: Did the Armed Forces Council agree with this?
Brig.-Gen. Colwell: Yes.
Senator Dallaire: Proposed section 247.91(1) on page 4 of the bill states:
For the purposes of calculating the benefits of an employee who takes a leave of absence under this Division, employment on the employee's return to work is deemed to be continuous with their employment before the leave.
What does that mean for pensions? Does the individual's pension program with the firm continue? Can the reservist pay it back, or does he or she lose that period of time in the pension calculation?
Brig.-Gen. Colwell: I do not know about the pensions of other organizations. I would have to follow up on that question.
Senator Dallaire: It does not seem clear to you that this proposed section covers pensions? It covers seniority. That is why I wanted to know whether it covers pensions. That is another significant aspect, particularly if a reservist is gone for 18 months.
Would you agree that there could be a perception of weakness if the rules are not clear regarding maximum time of employment? That is, an employer can say, ``Listen, this guy is always gone; he has gone on training and has done two tours in Afghanistan.'' The provision here lets the employer say, ``That is enough.'' Knowing that you reinforce — because you are not a mercenary force — people's experience in training because you want them to go from private to sergeant to warrant officer, does that provision not undercut building and encouraging people to stay in the reserves and continue to build their expertise?
Brig.-Gen. Colwell: A benefit of this kind of framework legislation is that issues identified as problems can be dealt with within the regulations.
Senator Dallaire: In my opinion, the way the bill is written leaves the employer enough room to manoeuvre and say, ``We will let him go once; that is it. We will not let him go twice.'' That can undercut the process.
Proposed section 247.93(2) states that the employer ``shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.'' It does not mention seniority. Would the person also maintain an equivalent seniority level even though he or she is leaping into a new area, or would he be starting from scratch?
Brig.-Gen. Colwell: I believe the bill has to be read in its entirety. One proposed section would follow the other.
The Deputy Chair: Mr. Giles is still here, so I would ask him to rejoin us for these questions on pensions and seniority.
Mr. Giles: I would be delighted to answer. I will go back to the question of pensions. The bill is written such that, during the time the reservist is absent from work, no pension is accumulated. The employer is not obliged to put money into the pension fund.
It is an important provision because it makes that gap period — the time the person was on reserve duty — disappear for the purposes of calculation of pensions, sick leave and other benefits. Often those benefits depend on continuous employment. The bill is written to make that gap disappear for the purposes of the person's subsequent entitlement to pension, sick leave, vacation and so on.
Please remind me of the second question.
Senator Dallaire: It related to seniority in the event that employees change jobs.
Mr. Giles: Seniority accumulates. That is one exception to what I just said. If employees are away for a year and a half, their seniority continues to accumulate during that period and therefore entitles them, if they are under a collective agreement for example, to make use of that seniority in subsequent jobs.
Senator Dallaire: Also, the reservists now have a pension program, do they not?
Brig.-Gen. Colwell: That is correct.
Senator Dallaire: That period would be covered. Good.
I have a lingering concern, even taking what the minister has said fully into account. I have a gut feeling that we may not have all the angles covered or at least raised in regards to the reservists' side.
I acknowledge the staff work. I am sure the work has been done as completely as possible. However, I am concerned about the whole reserve side of the house and whether serving reservists, the honorary colonel processes, the recruiting methodologies and so on have been covered with this bill.
I like the bill. It is better than what we had in the Senate. It is a better and more complete bill. However, I have a gut feeling from the previous work I have done on this that some people from the reserve side have significant difficulties with this bill. Are you not left with that concern?
Brig.-Gen. Colwell: All the reservists with whom I have spoken since the bill was announced have been absolutely supportive. They have said that we waited too long.. Particularly, the students are happy because they are recognized in the bill.
We can get at only the federal public service with this bill, but I know that the public servants I have spoken to who are reservists in their part-time life have been very supportive and have welcomed this. I checked blog sites the day after the initial announcement that the bill would be tabled. They were overwhelmingly supportive.
Senator Dallaire: Are you comfortable that the provisions regarding the federal public service are reflective of that particular organization demonstrating a sense of responsibility towards reservists that we have not seen until now? All the battles we had for regular force people to be recognized once they retire or when they are injured have been horrendous. Are you comfortable this bill is enough to cover that angle?
Brig.-Gen. Colwell: I believe it is. In some of our initial meetings, by virtue of their jobs, public servants were at our table. They were also reservists in their part-time life.
Senator Dallaire: Thank you very much. Your responses have been complete. I would ask only that we be made aware of the process of creating regulations. There are many provisions that call for significant regulations to prevent people from circumventing this bill.
Who will lead that process? Will your side lead it? Will Veterans Affairs Canada be involved as well as the Department of National Defence? Will the reservist side of the house be in evidence? If you do not do it, they will come after you later and harass the living daylights out of you because you did not cover an angle.
Senator Zimmer: I strongly support this bill and I consider reservists in this country a national treasure. In Winnipeg, as I mentioned to you earlier, they are actively championed by a former lieutenant governor.
I reread the bill. Your answers to some of Senator Dallaire's questions touched on some of my questions.
The bill states that when reservists return, they will be returning to employment but not necessarily to the specific jobs they were in. Is that correct?
Brig.-Gen. Colwell: Yes. The intent of that provision is to ensure that if a job had to be replaced, the reservist would come back to a similar job at the same pay and rank. That is particularly important in the public service. Some positions need to be filled. Although you might come back as an AS-02, that particular job might be filled, but you would get a similar job at the same level.
Senator Zimmer: The first part of that proposed section, 247.93(2), says ``for a valid reason.'' Who makes that judgment? A ``valid reason'' is subjective. Is there an appeal on that?
Brig.-Gen. Colwell: I believe it is the employer.
Mr. Giles: The employer would make that decision if he or she felt there was a valid reason. A reservist who disagreed would have the right to go to a labour affairs officer working for the government and request a review.
Senator Zimmer: Does the employer have the right to refuse the reservist from taking that leave?
Brig.-Gen. Colwell: No, he does not.
Senator Zimmer: Does the employer have to comply?
Brig.-Gen. Colwell: Yes, under the law.
Senator Nancy Ruth: Can you tell me how reservists are recruited, both in towns and cities as well as at colleges and universities?
Brig.-Gen. Colwell: We have a combined reserve-regular force recruiting process where the candidates are processed. The reserves and the regular forces do some of their own attractions, but we have a national attraction campaign planned. Some of you might have seen our campaign, ``come and fight with us.'' We have new attraction campaigns. Also, because the various units are in small communities in Canada, there is a lot of word-of-mouth attraction. Both reservist and regular force folks are processed in the same manner: we go through all the paperwork that you need to do to join us.
Senator Nancy Ruth: In these campaigns, what attempts are made to recruit visible minorities and women? This would be contrary to the word of mouth, usually.
Brig.-Gen. Colwell: If you have had a good look at our display campaign videos and pictures, we certainly are all inclusive. We have found with many visible minorities that there is a different approach. We have to influence the influencers, the leaders in the community. We need to and we have made big attempts to make connections with those community leaders. Sometimes when the community leader believes that this is a good thing, they influence their young folks to come and join us.
Senator Nancy Ruth: How do you do that for women?
Brig.-Gen. Colwell: There is not one single community leader for women.
Senator Nancy Ruth: No, there is not. That is why I asked.
Brig.-Gen. Colwell: All of our campaign plans feature women in them. Sometimes it is hard to tell when they have a helmet on, but they are there if you look at the faces. I guess maybe even folks like me who wear the uniform are influencing women when we walk about.
Senator Nancy Ruth: Because of the Armed Forces' record on equity groups, my concern is that they make specific efforts wherever they are recruiting, whether for reservists or others.
What benefits do students get who are reservists?
Brig.-Gen. Colwell: Do you mean with respect to being students?
Senator Nancy Ruth: No, with respect to being reservists. What is the benefit of being reservists when they are on campus?
Brig.-Gen. Colwell: They get paid for the work they do with the reserves. If I remember correctly, that was a great thing when I was a student.
Senator Nancy Ruth: Half their debt, compared to other students, is already cancelled by the fact that they are reservists; and the other half of their debt is now interest free while they serve in a tax-free area, is that correct?
Brig.-Gen. Colwell: I do not want to disagree, but the debt is not cancelled.
Senator Nancy Ruth: I understand that.
Brig.-Gen. Colwell: It is just that the clock stops.
Senator Nancy Ruth: However, their wages are higher; and their wages are tax-free, are they not? My understanding is that soldiers serving in Afghanistan are tax-free.
Brig.-Gen. Colwell: The salary is not tax-free, but certain benefits are tax-free.
Senator Nancy Ruth: Thank you for that clarification.
Senator Day: I have some questions to clarify points that have come up.
The first question is with respect to the existing provisions under section 285.02 of the National Defence Act, which says:
If an officer or non-commissioned member of the reserved force is called out on service in respect of an emergency, the officer or member's employer shall reinstate the officer or member in employment at the expiry of that service.
Then it goes on about generating regulations. That section is one of the amendments to the National Defence Act that were passed in 2002 but never brought into force, never dealt with, as I understand it. Do you have a comment on that?
Brig.-Gen. Colwell: The emergency is later defined.
Senator Day: Yes, you mentioned that. That is my next question. You suggested that when I asked questions earlier. I thought you said it would require full mobilization, is that right?
Brig.-Gen. Colwell: No, not full mobilization, but it would be in that kind of mobilization context, that it was a severe emergency as defined.
Senator Day: The act does not say ``severe emergency.'' It just says ``emergency.'' When I go back to the National Defence Act, ``emergency'' means ``an insurrection, riot, invasion, armed conflict or war, whether real or apprehended.'' An apprehended insurrection or an apprehended riot is an emergency. That is not full mobilization.
Brig.-Gen. Colwell: No, it is not.
Senator Day: Okay, you are with me now. Maybe I misheard earlier and the transcript will help us with that, but I wanted to clarify that.
The second point I want clarification on is the honorary colonels. In response to Senator Dallaire's question, you said that you do not know what the honorary colonels' position is. Then when I asked you about the Canadian Forces Liaison Council, you said that you did not really know what their position is. Is there someone within the Armed Forces we speak who would have consulted with these very important people and lobby groups and interest groups for reservists? Should we talk to your boss?
Brig.-Gen. Colwell: You could talk to my boss. However, I get the specific consultations filtered through people like the Chief of Reserves and Cadets and the liaison with Canadian Forces Liaison Council. I know some of the Canadian Forces Liaison Council's views prior to the development of this legislation, and I believe that we have captured most of what they were talking about.
Senator Day: Let me ask it another way. When you got this draft legislation, which impacts on our Armed Forces reservists, what mechanism was set up by the Canadian Forces to consult with groups like the honorary colonels association and the Canadian Forces Liaison Council, who have been supportive of the reserve for at least the last 50 years and are an obvious place to go as they have a whole mechanism set up across Canada? What kind of consultation process was set up by the Armed Forces to gain input from those people, and who was in charge of that?
Brig.-Gen. Colwell: The consultation we did within the Canadian Forces was partly my ship. The people with whom I consult — members of the army, navy, air force, their leadership or the Chief of Reserves and Cadets — have their own linkages, which they bring to the table.
Senator Day: You consulted with other military personnel who might have consulted with other people. That is why you told me you had no idea what the Canadian Forces Liaison Council's position was on this.
Brig.-Gen. Colwell: It is not as specific as I have no idea. I have the idea that has been passed to me; but I did not sit down with this piece of legislation and talk to the members of the liaison council.
Senator Day: What about the Royal Canadian Legion? What about the army, navy and air force associations?
Brig.-Gen. Colwell: No, sir, I did not consult with those.
Senator Dallaire: Bill S-202, which was in the Senate, was tabled on October 17. I responded to it some weeks later, and then heard about the drafting of Bill C-40. How long have you all been working on this?
Brig.-Gen. Colwell: Within the Canadian Forces, we have been working on these ideas for a long time.
Senator Dallaire: I meant more specifically; we can go back to my history too in there. I am talking about the initiative from your department.
Mr. Giles: We have been working on it since early autumn 2007. The Minister of Labour requested that we launch the process. I cannot give you an exact date because I was not in my current position until the beginning of November. My understanding was that it had begun two months before at the request of the Minister of Labour.
Senator Dallaire: That is a short time if you are trying to gather the input of the militia reserve side and all the other players, because they do not meet often. Your responses are now more specific in as much as they might not have been touched upon as completely as they could have been. This is not pejorative to the bill, but we want to make sure we are not taking off on a tangent.
Was there any process to provide protection for students' academic accreditation when they ask for leave halfway through a semester? We have heard that some institutions make students begin from scratch and they lose a whole semester or they cannot sustain the credits. Have you had feedback from that side? It seems as though 40 per cent of reservists are students.
Brig.-Gen. Colwell: That is part of what the Canadian Forces Liaison Council is doing in its education project. The council is working not only with universities but also with many other institutions of higher learning and training. They have agreements in place with a number of them. The nature of the process is such that unless a student chooses to leave in the middle of a semester, this does not happen when students volunteer to start their training.
Senator Dallaire: That would be the case for the Cyprus rotation; we knew well in advance and it worked out to be one semester or two. However, with shifting rotations of 15 months or 17 months because of requirements, students get caught in the middle of semesters. The minister did not say what his plan is to convince the provincial governments to come on board. He said only that he is talking to them. He has a long way to go, and the academic side would have to do that as well. It should fall within the responsibility of the regulations to give that guarantee, because that is their full-time employment. You should be attempting to do that.
Proposed section 247.5(4), on page 2 of the bill, states:
. . . if, in the opinion of the Minister, it would adversely affect public health or safety or would cause undue hardship to the employer if the employee, as an individual or as a member of a class of employees, were to take leave.
I have seen barn doors, and that is a big barn door. I come back to the reticence that the minister seemed to indicate regarding incentives for employers. I would contend that they will beat down your door with this clause because you are giving them nothing except a hassle. Yes, the employer is getting a good quality person, but he also might pick up someone who is injured, and that would be problematic because the employer might have to absorb that person and replace her when she is gone for 18 months. There is nothing in there for the employer. That was the weakness we had discussed even with Bill S-202. Unless you add an incentive, in particular for small- and medium-sized enterprises, employers will not be encouraged. An employer who has 10 employees will lose one tenth of his labour force.
Why not create a tax or other financial advantage as an incentive that would not only increase the visibility for recruitment but would also make it much easier for an employer to absorb the loss? I would ask that of Mr. Giles.
Mr. Giles: I will start by repeating what Minister Blackburn said in response to a similar question. That possibility was examined during the development of not only this proposed legislation but also the broader strategy of which this bill is one piece.
There are two reasons why an incentive program was left aside for the moment. First, there are many unknowns about the actual cost to employers of replacement. It hangs wildly on the kind of position the person leaves and whether the person can be replaced easily. It depends on the length of service in the industry, the occupation and so on. There are many unknowns, and given the time frame we had to prepare the bill and the whole strategy, it was impossible to undertake the kind of detailed research needed to be able to develop an adequate program that truly addressed those needs. That is the first of the reasons for leaving it aside.
Second, after studying the issue and after the minister's meetings with reservists across the country and with employers of reservists, there was the conviction that employers did in many cases receive a real benefit from employing reservists because of the qualities of leadership they brought to the workplace. On the basis of that additional consideration, the decision was made that, for the moment, this package of measures, with the provincial- territorial cooperation, would not include incentives or financial compensation for employers. If it becomes necessary in the future, then that idea can always be reconsidered. For the moment, it was decided to go without.
Senator Dallaire: I was asked by the Mayor of Quebec City to brief city council on why they should continue to send their civilian police to UN missions. The reason for that was that when they returned, it was found that they had acquired qualifications or skills in multi-ethnic scenarios. As well, they were picking up casualties and other real problems with individuals not being able to accommodate, and so they had to increase their recruitment. They were stuck so they had to increase their population base of police officers.
They saw a positive element, even with their multi-ethnic communities, but these other dimensions were such that they were going to close down the whole program. The police felt horrified that the mayor would do that, so I explained these incredible qualities. I was asked why we do not give them help to absorb all of this so that the local people are not being taxed. They agreed that the federal government gives them the advantage of experience in these people, but they do not want to take on the additional burden that comes with that.
The deficiency that I articulated and the big, open barn door in the bill will ensure a reduction in the recruitment of reservists, post-education time. They parade themselves there innocently, but there is a chance that the small employers, which are the vast majority in this country, will crash it. How will a 21-year old graduate take on a company that he is finally trying to get to employ him? There is a significant deficiency in the bill. We do not want to have the system get had by doing it.
In both multi-employment, to continue to come back to the trough to get the person, and the initial recruitment, there is still a problem there. I would like to hear the reservist side of the house to see if they have a warm fuzzy feeling on covering those two angles. You say ``maybe later,'' if I understand you well, Mr. Giles.
Mr. Giles: ``Maybe later'' is more a question of if subsequent experience demonstrates the need to make those changes, as opposed to ``we will think about it later.'' I did not mean to give the impression that we were just pushing that off. It really is a question of this being a novel form of legislation, a new area that will require close monitoring over the next few years with perhaps some supplementary or corrective measures.
Senator Dallaire: The government has an incredible policy of trying to increase the size of the forces because of the massive demands plus the casualties. The government has articulated that. It has pushed it and wants to move to 23,000, although I now hear rumours that they want to reduce that and slow it down. They need bodies.
Why bring in legislation that may put that aspect at risk, particularly if they are providing you with the little flexibility that your regular force does not have? Without the reserves, you would not be able to fill all those billets. That is significant. It got lost. There was one big priority, an overarching strategic position by the government, and then they introduce a bill that might put that at risk for two, three or four years. Then you have to train them and change the attitudes. Come in with it right up front.
Senator Day: To follow up on that, you said that this was a new area where we have to wait and see how it works, Mr. Giles.
When Bill C-40 was first considered, was the section in the National Defence Act that I have referred to a number of times looked at and disregarded, or were you even aware that it existed?
Mr. Giles: We were aware that it existed. We were aware that it had not yet been proclaimed and that no regulations had been issued.
In our consultations with our colleagues in the Canadian Forces, we understood that in the case of an emergency those things could be done very quickly and that provision in that bill could be activated.
That said, because of the fairly narrow definition of ``emergency'' that is contained in the National Defence Act, the policy decision was made that, to cover other forms of reserve activity that would not have been covered even had that part been proclaimed, it was still worthwhile going forward with legislation of this type, even though it was restricted to the federal jurisdiction.
Senator Day: The policy decision was to move to the labour code. If you felt that there was something wanting in the National Defence Act, the other approach would have been to amend that, but that was decided against.
Mr. Giles: That is right. The level of comfort with that policy decision was increased once provinces started, one by one, to pass parallel legislation covering the part of the workforce falling under their jurisdiction. I just learned half an hour ago that Newfoundland has now introduced legislation to protect reservists.
Senator Day: Good. Thank you.
The Deputy Chair: If there are no further questions, we will proceed to clause-by-clause consideration of the bill. Before we do that, we will have an in camera meeting. I would like someone to move a motion that senators' staff be permitted to stay in the room for the in camera portion of the meeting. Senator Segal, Senator Zimmer. All in favour?
Hon. Senators: Aye.
The Deputy Chair: It was passed unanimously. We can clear the room and begin our in camera meeting.
The committee continued in camera.
The committee resumed in public.
The Deputy Chair: Let us get started so that we can get back into the chamber. I would like to call the meeting to order. For the purpose of the record, we have decided to postpone the clause-by-clause portion of the agenda to the next meeting, whether it be April 7 or April 14.
I will try to sum up as best I can that senators on both sides believe we should hear more witnesses, particularly the senators on the Liberal side. I think we are all in agreement that this is a bill to support but that we should hear more witnesses. That is what we have all agreed to do. We have also agreed to put clause-by-clause consideration on the agenda at the next meeting.
If any senator wants to add to that, to put anything on the record that I may have misinterpreted, please do so now.
Senator Dallaire: For the record, there is a risk that this proposed legislation could lead to a reduction in recruitment because there are no incentives for industry. I think it would be a good idea for this committee to do some follow-up work, subsequent to this bill's being implemented, to see whether there is reason to amend the bill later on, even at the risk of losing time, in order to fill the hole that might be created by a reduction of recruitment versus simply maintaining what we have now.
Senator Segal: I want to thank the deputy chairman. I think you have accurately encapsulated the views expressed around the table with respect to how best to proceed.
I will go on the record saying that I think a delay of a month, which would occur if we cannot meet until April 14 because permanent members of the committee have obligations elsewhere, is perilous and unnecessary.
Saskatchewan, Alberta, Manitoba, Nova Scotia, New Brunswick and P.E.I. have all enacted legislation to protect reservists in the provincial labour jurisdiction, and some provinces did it in one day. The House of Commons also passed this legislation in one day. They did so because there is a matter of urgency: reservists, whom we need for service both at home and abroad, do not have job protection here. Australia, the United States, France and the United Kingdom have job protection. We are outliers, and that makes it more difficult for recruitment and for making the total force concept work on behalf of our domestic and foreign policy interests.
There is a risk that any piece of legislation can, in the best of faith by colleagues, be looked at in greater and greater detail, and an endless number of witnesses can be called.
The truth of the matter is that Reserves 2000, supposedly the spokes-organization for reserves around the country, is very much in favour of this bill and has said so on the record.
The Department of National Defence has worked tirelessly with the Department of Labour in this process, and this bill, while not perfect, represents a significant step ahead. The minister, as he said, in the best of faith went from reserve unit to reserve unit to hear from members of the reserves at all ranks. They spoke frankly to him. I was witness to such an event at HMCS Cataraqui, the senior service detachment in Kingston. I think we should respect that process.
While I know that the Senate takes great pride in its focus on detail and making sure that the nuances are carefully sorted through, we should be careful that we do not let the excellent and the perfect be the enemy of the good. Unwittingly — not through anyone's intent, by and large — I think that is what we may be doing by putting this off.
I would have preferred that we proceed clause by clause, on division if necessary if there is not consensus on the committee. I understand that, and I thought we would have been able to do so in a non-partisan way, but since that is not the case, I understand the ruling that you made as chair.
The Deputy Chair: Thank you very much. This meeting was called rather quickly, so I want to thank senators. We did get a lot of the business done. We heard from the minister and the Department of National Defence. We asked some very good questions here and informed ourselves on the bill. Thank you for that and for your attendance today.
The committee adjourned.