Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 30 - Evidence - May 31, 2017
OTTAWA, Wednesday, May 31, 2017
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:16 p.m. to consider the subject matter of those elements contained in Divisions 10 and 17 of Part 4 of Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures (topic: Division 17 of Part 4 of Bill C-44).
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon, and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today, we continue our study of the subject matter of those elements contained in Divisions 10 and 17 of Part 4 of Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017, and other measures.
We continue today with Division 17, which makes certain amendments to the Canada Labour Code.
With us today for the first panel are, from Employment and Social Development Canada's Labour Program, Gary Robertson, Assistant Deputy Minister; Eric Advokaat, Senior Director, Occupational Health and Safety; and Charles Philippe Rochon, Acting Manager, Labour Standards and Wage Earner Protection Program.
I understand, Mr. Robertson, you are going to lead off. You have up to five minutes, sir, and the floor is yours.
[Translation]
Gary Robertson, Assistant Deputy Minister, Labour Program, Employment and Social Development Canada: Thank you for inviting me to discuss Division 17 of Part 4 of the Budget Implementation Act. With me are Eric Advokaat and Charles Philippe Rochon.
[English]
Division 17 is aimed at improving compliance with the requirements of Part II and Part III of the Canada Labour Code, which I'll refer to as the code from now on.
As you may know, Part II of the code sets occupational health and safety rules to prevent workplace injuries and occupational diseases, while Part III establishes basic working conditions such as maximum hours of work, overtime, holidays and statutory leaves.
Both parts apply to roughly 900,000 employees in the federally regulated jurisdiction, which includes Crown corporations. For perspective, it's roughly 6 per cent of all employees across Canada. Part II of the code also applies to the federal public service, which adds another 2 per cent, totalling 8 per cent of all Canadian employees.
[Translation]
By updating the code's suite of compliance and enforcement tools, this legislation will ensure that workers suffer fewer accidents and injuries at work and that they receive the pay and benefits to which they are entitled. It will also streamline processes by consolidating the various adjudicative functions that currently exist under the code.
Let me turn to the specific proposed amendments, starting with three key changes that will apply to both Part II and Part III of the code.
[English]
First, the legislation will create a new Part IV of the code, which establishes the basis of an administrative monetary penalty system to promote compliance with the occupational health and safety and labour standards requirements. This will allow the adoption of regulations to designate violations and determine associated penalties which, in the most extreme case, could reach up to $250,000.
Provisions under the proposed Part IV of the code also set out processes for the issuance, review and appeal of such penalties and associated notices of violation.
Second, new sections under Parts II and III of the code would give authority to publicly name employers that have been found guilty of an offence. A similar section would allow the naming of employers to whom a notice of violation is issued under the new Part IV once all appeals have been exhausted. In addition to the employer's name, information could be published on the nature of the violation or offence and the associated penalty.
Third, all of the current functions of appeal officers under Part II, of wage referees and unjust dismissal adjudicators under Part III, and of adjudicators under the Wage Earner Protection Program would be transferred to the Canada Industrial Relations Board. The board's powers, duties and functions would be adjusted accordingly. The objective is to have a more streamlined appeals process, build on the board's existing expertise, enhance the consistency of decisions and promote a timely resolution of issues.
[Translation]
Several other amendments would apply more specifically to Part III of the code in order to ensure that employees get the labour standards benefits and protections to which they are entitled, including the effective recovery of unpaid wages. More specifically, these amendments would allow employees who face employer reprisals for trying to exercise a labour standards right to make a written complaint to the Canada Industrial Relations Board, which would be given broad remedial powers.
[English]
These amendments to Part III would also allow the Minister of Employment, Workforce Development and Labour or a delegated official to order that an employer conduct an internal audit and report on whether or not it complies with Part III requirements and what steps have been taken to address compliance issues; give inspectors the power to order employees to put an end to a labour standards violation and take steps to ensure that it does not reoccur; clarify aspects of the wage recovery process and reaffirm that inspectors have the power to determine wages owed, including in situations where no pay record has been kept or provided by the employer; expand by one year the period that may be recovered by the payment order, allowing for the recovery of unpaid wages and other amounts due up to two years before the day on which the complaint was made, employment was terminated or an inspection was started — any of those three cases; provide a clear process to appeal an inspector's determination of wages due if the employer voluntarily makes the payment but the employee believes additional amounts are still owed; allow the recovery of unpaid wages and other amounts stated in a payment order issued to the director of a corporation by ordering any person indebted to that individual to pay amounts owing directly to the Labour Program on behalf of the affected employees; impose administrative fees equal to $200, or 15 per cent of the amounts due, whichever amount is greater, on payment orders issued to employers that are not subsequently rescinded on review or appeal; provide additional flexibility for an employer or a director of a corporation — subject to ministerial approval — to give security, such as a bond instead of a monetary amount, when seeking the review of a payment order.
[Translation]
All of these proposed compliance and enforcement tools already exist in other Canadian jurisdictions. Administrative monetary penalty schemes are also used by other federal departments and agencies, such as the Canadian Nuclear Safety Commission and Transport Canada. The proposed measures are, in our view, balanced and based on best practices.
[English]
In closing, I will note that the proposed amendments will come into force by order-in-council, some earlier than others. We expect that the whole process should be completed within three years after Bill C-44 receives Royal Assent.
This will give time to consult with stakeholders on regulatory changes as they were for amendments contained in this legislation and allow the Labour Program, the Canada Industrial Relations Board and the Administrative Tribunal Support Service of Canada to adjust their administrative processes, train staff and provide information to employers and employees.
Thank you.
The Chair: We have roughly 45 minutes for questions. We'll begin with the deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses and to the presenter.
I'm wondering if you could clarify for the committee, where you mention appeals, particularly for the employer and the employee, looking at administrative fees that would be imposed and a subsequent review or appeal, the appeal lies with which court?
Mr. Robertson: The appeal would exist with the Canada Industrial Relations Board.
Senator Baker: And from there?
Mr. Robertson: That's basically the extent of it. The minister has some ability to review some Part III activities in case there was erroneous data provided to the program and we need to adjust but, for the most part, it's the Canada Industrial Relations Board. The whole point was to consolidate it in one function so that it was simpler for all stakeholders to know what the process is, who they were going to and to understand that it was a professional entity.
Senator Baker: The appeal lies to whom? Who do you appeal to, the employer and the employees throughout —
Charles Philippe Rochon, Acting Manager, Labour Standards and Wage Earner Protection Program, Labour Program, Employment and Social Development Canada: With respect to Administrative Monetary Penalties, the person to whom the AMP has been issued will be able to first seek, as was mentioned, a ministerial review, and through that review there could be a correction of the amounts or a reevaluation as to whether or not a violation has occurred.
After the review, there will be a further appeal possible to the Canada Industrial Relations Board, and the CIRB will have full power at that point to confirm, rescind or even modify the actual penalty amount that has been stated.
Now, after that, obviously there's always a certain opening for judicial reviews of decisions of administrative tribunals, but the legislation does include a privative clause to try to limit subsequent appeals to the courts.
Senator Baker: When you have an appeal to a penalty that you envision could go up to $250,000, so the eventual appeal would be to judicial review, which would be presumably the Federal Court?
Mr. Rochon: Basically, just to be clear, the appeal as the legislation is drafted would be to the Canada Industrial Relations Board. So the Canada Industrial Relations Board would have the authority to deal with those appeals.
Judicial reviews, obviously, would be always possible — yes, it would be to a federal court.
Senator Baker: Then with the matter under appeal, you mentioned that the Canada Industrial Relations Board could reverse the decision.
Mr. Rochon: Yes.
Senator Baker: When you get to judicial review, the judicial review cannot reverse the decision in an administrative matter. It would be sent back to the decision maker for review.
Mr. Rochon: Yes. Assuming that —
Senator Baker: So that will be captured by this legislation? There's no change there that we could see a matter go on second appeal and then to the court and then sent back again for re-adjudication?
Mr. Rochon: The legislation sets out a two-step process. Again, it is the ministerial review followed by an appeal to the Canada Industrial Relations Board. It does not specify anything around judicial reviews except to provide a privative clause to limit the number of cases that will be judicially reviewed. Again, we understand that the courts, if they find that a decision of the decision maker was not reasonable, will be able to send it back for re-examination.
Senator Baker: Not reverse it but to send it back.
Mr. Rochon: Yes.
Senator McIntyre: Thank you for your presentation.
As I understand, the functions of the appeals officers under Part II and of wage referees and unjust dismissal adjudicators under Part III of the code, as well as the functions of adjudicators under the Wage Earner Protection Program Act, will be consolidated.
Mr. Robertson: Yes.
Senator McIntyre: That said, could you give us an estimate of the cost annually for this consolidation?
Mr. Robertson: We can't at this point. We can tell you that there is a process under way where we're identifying those costs and having the discussions with the stakeholders that would receive the functions. So there's an understanding where the costs exist today within the program principally or with other parts of the system, and we will manage that subsequent to the passing of the bill.
Senator McIntyre: Further to the answer to a question by Senator Baker, the minister would not be affected in her function and duties by the proposed new procedural requirements with respect to appeals?
Mr. Robertson: Not with respect to appeals, but the one point I would want to make is, unlike the current system, there will be a notification of the minister when there is an appeal, which doesn't happen in a formal sense right now. That will allow the minister to make representation should he or she choose to do so. That's a new element that's included in the current construct of the act.
Senator Lankin: At a general level, could you describe for us the kinds of concerns or problems that gave rise to these changes, as I understand it, both within the area of compliance and occupational health and safety and then on general working conditions, benefits, et cetera. What have the problems been? What have you noted?
Mr. Robertson: We took a look at the period between 2013 and 2016 and did some analysis as to what number of violations we were experiencing. When we did the analysis, we found that on the occupational health and safety side, roughly 35 per cent of all the violations were repeat offenders. It's not someone that didn't understand what their obligations were and just kind of needed some education or advice. These were folks that knew what they should have been doing and kept doing it again and again. That was a real concern to us.
When we looked on the labour standards side for the same period, we found that it was a lower number, 23 per cent being folks that had been repeat offenders, but the interesting footnote there is they represented close to 40 per cent of all the employees because one employer can have multiple employees that are not getting paid.
In both cases, because the ultimate percentage of coverage was in the 30 to 40 per cent range in terms of recidivism, if I can use that word in this context, it warrants a stronger compliance and enforcement regime and, in our context, a stronger tool, which was principally the Administrative Monetary Penalties.
Senator Lankin: The Canadian Labour Standards Board would be given greater remedial powers. Could you describe what those currently are and what they would become, please?
Mr. Rochon: To clarify, when looking at the remedial powers, that would be with respect to complaints for reprisals. Currently, under Part III of the code, we do not have a specific reprisal provision. For example, for an employee who has tried to exercise a right such as taking a leave of absence that is recognized under the code or who has filed a complaint or has provided support to an inspector or information to the minister, if subsequently the employer were to suspend the employee or demote the employee or threaten to take any kind of action on the employee, right now under the code all we have is prosecution to ensure that the employee is protected. What would be added essentially is a new recourse for reprisals whereby the employee will be able to file a complaint with the Canada Industrial Relations Board to basically seek a remedy with respect to that.
Obviously, the board will have an opportunity to look at the issue and try to determine the case. Assuming that reprisals are determined to have taken place, the board will have the power to order reinstatement of the employee, assuming there's been a dismissal; compensation of the employee for wages lost; compensation for any financial penalty that has been imposed on the employee by the employer; but also a relatively broad power to do anything that needs to be done in order to compensate or remediate the effects of the reprisal.
This is a fairly broad language. It is very similar to provisions we already have on unjust dismissal under the code except that their application will be broader. It will cover not only dismissals but also other forms of retaliation. It will cover all employees, whereas unjust dismissal provisions right now do not cover employees who have less than 12 months of continuous service and do not cover managers or employees covered under a collective agreement, et cetera. The objective here is to ensure that employees are fully protected so that, if their rights should be violated, they have recourse.
Senator Lankin: I can't quite find the paragraph it was quoted in, but I believe you said that in a situation where repayment is required, an order can be made to a director. I want to understand the implications of that. Are we talking about the old pierce the corporate veil — that is, this is a director's liability issue — or are we talking about the corporation's issue?
Mr. Robertson: It's very similar to the Industry Canada's requirements for board members to be responsible for salary or compensation for a six-month period. Similarly, if we struggle to obtain the payment on behalf of the employee from the organization or its management, it gives us the ability to go after the directors. Yes, in many cases we would expect that if it happens, they would use their liability insurance as a vehicle to pay that. We can't predict that would happen in every case, but that is the provision. It gives us an extra ability to make sure we achieve the payment for the employee.
The Chair: We'll put you on second round.
[Translation]
Senator Boisvenu: Welcome, gentlemen. I have two questions for you. Mr. Robertson, on page 3 of your brief, you propose transferring to the Canada Industrial Relations Board the powers of wage referees and dismissal adjudicators. Is there a particular reason motivating this transfer?
Mr. Rochon: Thank you for your question. Indeed, these are multiple objectives. On the one hand, the consolidation of all decision-making functions within the board will ensure greater consistency and speed in decisions. Currently, the process involving adjudicators is one in which the minister or a delegated official must appoint an adjudicator, who will study the matter, and so on. So it isn't a permanent structure, while the Canada Industrial Relations Board has a well- established structure. Therefore, getting decisions will probably be quicker. As I mentioned earlier, in terms of consistency of decisions, only one entity will be responsible. Different people will render decisions, but we won't end up with a system where we never know or with decisions that could vary depending on the person appointed. This will allow us to build on the existing expertise.
This is a phenomenon that has been seen in most provinces, where the duties tend to be centralized within a single entity, which fosters this learning capacity and allows us to take advantage of past experience, jurisprudence, and so on. Ultimately, the system will be more efficient and faster, both for employers who appeal and for employees, who will get a quicker decision. This will also promote greater independence as decision-making duties will be separated from the minister's role. The minister or a delegated official will no longer be the one to appoint the person responsible for the file, but rather the Canada Industrial Relations Board.
Senator Boisvenu: I imagine the Canadians listening — I'm surprised to see that you have workplace health and safety responsibilities when every province has boards that take care of health. Is there an overlap, or are the responsibilities truly separate?
Mr. Robertson: The two systems exist in parallel. We are responsible for close to 8 per cent of the population in communications, telecommunications, transport and so on. So we are responsible for a certain number of sectors, and the provinces take care of other sectors, including construction.
Senator Boisvenu: This means that there is a workplace health and safety regime for businesses under the Canadian code and another workplace health and safety regime in the same provinces for businesses that come under the provincial labour code.
Mr. Robertson: Yes. In fact, every province has its own system for the sectors under its jurisdiction. We have the same thing for sectors under federal jurisdiction. Like the provincial workers' compensation boards, we have a system for federal employees called GECA, under the Government Employees Compensation Act.
[English]
Senator Joyal: Welcome, gentlemen.
My first question is of more of a general nature. Were these changes requested by the union representatives? Is the objective as a result of some representation that has been made by the union generally, for instance, to make the system more rational and easier to consult the decision and so forth? Or is this something the administration internally came to the conclusion that, to satisfy some administrative objectives, it would be better to have the proposal that we are considering today?
Mr. Robertson: I would say it would be a bit of a mix, actually. We have a fairly unique tripartite consultation process within the labour regime that allows us to continue, on an ongoing basis, to have relationships with both employee representatives and employer representatives, and we have continuous discussions and have had that for years and years and years.
In terms of the specificity of this particular proposal, though, I would argue this came principally from the analysis that we did internally around the degree to which employers were observing the code. Again, to the points I made earlier around the percentages, there are a significant number of employers across the country in the federally regulated jurisdiction that are repeat offenders. Really, what that means is there are people working in unsafe conditions or not getting compensated for the work that they have done.
We didn't feel that that was an appropriate situation to allow to continue to exist, so we embarked on a number of focused consultations in 2016. So in 2016, when we did the flex work consultations, we did go out to the stakeholder groups that you have spoken to and a number of others. We had the opportunity to speak to about a thousand different Canadians at that time and found that there was a high degree of support for the system as long as it was set up and structured well.
That is, again, why we want to take two to three years now to go through the regulatory process, to make sure that the system that is put into place is well-balanced and serves the needs.
Senator Joyal: So it would not be overstating it to say that you have the support generally of the union representatives in coming forward to Parliament with those changes?
Mr. Robertson: Through the consultations, we didn't identify any issues for concern in the stakeholder groups. I'll leave it to the reps that I know are going to speak after me to speak on their own behalf. I have no personal knowledge of labour representative concerns with the proposal. The concerns that I understand exist on the employer's side are more around ensuring that these are put in place, they are balanced and that they don't work independent of all the other tools we already have. Our traditional approach is to go in and make sure people are aware of the responsibilities, and if they are not, to work through with them in an informal way before we escalate and go to a more formal system.
Senator Joyal: My other question is in relation to the appeal to the Federal Court. I heard Mr. Rochon, but maybe he will want to give more explanation. In relation to the appeal to the Federal Court, or, I understand, even to a provincial Superior Court that might exist, does the bill, in fact, keep the status quo in relation to the motive of appeals, or is it made more restrictive or — I hesitate to use this term — or more liberal?
Senator Baker: Expensive.
Senator Joyal: More expensive. It's remedial in purpose. Or does it make it more open to other points or reasoning that was before in the act as it stands now? And maybe you could identify, in the proposed Bill C-44, to which section we should direct our attention to in relation to the answer that you're going to give us.
Mr. Rochon: All right. It is going to take me a few seconds to point you to all of the right sections, so I'll answer that right afterwards.
However, I just want to clarify that the act itself does not specifically address judicial reviews in any way different than was the fact before. The Canada Labour Code, as it stands today, without the amendments, currently provides that where there is a decision of the Occupational Health and Safety Tribunal — that's appeals officers for a Part II decision — or with respect to wage referees or unjust dismissal adjudicators, there are currently privative clauses that are basically aimed at ensuring that there is finality in the decisions of these decision-makers. These privative clauses will remain with respect to the transfer of all of the responsibilities of appeals officers, referees and adjudicators to the Canada Industrial Relations Board. So we are not changing anything with respect to privative clauses or the finality of decisions.
Obviously, because there is that transfer to the Canada Industrial Relations Board, we have had to do some drafting and ensure that those provisions that were there before remain in place and continue to apply with respect to that. Just to clarify, we are not changing anything with respect to the role of the courts, and we are not changing anything with respect to the approach that has been long-standing with respect to decisions under the Canada Labour Code. The policy objective has always been to try to get a relatively quick final decision based on the principle that justice delayed is justice denied. We do want to make sure that there is some clarity in terms of this.
Now, we do recognize that we cannot prevent the courts from undertaking a judicial review. This is within their area, and that's been recognized by the Supreme Court. But the reason we have privative clauses is to send a strong signal that if the courts are to review, it should be on a standard of reasonableness as opposed to a standard of correctness. That has not changed and we don't intend to tamper with that in any way.
[Translation]
Senator Dagenais: Thank you to our guests. Obviously, these changes weren't hastily thrown together, but could you tell us which main stakeholders were consulted before the bill was drafted? Also, how did they react, and what concerns did they have?
Mr. Robertson: As I said, we held a long consultation in 2016 with a number of stakeholders, including the Canadian Bankers Association, FETCO, the CLC and many organizations like that, but also with Canadians. As I said earlier, for the most part, the employees' representatives were comfortable with the proposals.
The employers' representatives were relatively comfortable, too, but they had two or three concerns. These included ensuring that the regulations were developed in consultation, and ensuring that all other program tools would also be used by the program in the future, such as education, informal coordination at the beginning of a complaint, and so on. They also wanted to ensure that employers who had good intentions, but lacked information, would have an opportunity to resolve the situation before a formal process began.
Senator Dagenais: However, in your remarks, I understood that if the parties don't agree, they will always have recourse to the employee-employer arbitration process.
Mr. Robertson: Yes. They will always have the opportunity to appeal. We now have an informal discussion process between the parties and, often, we can obtain the desired outcome and negotiate with the two parties. If the situation becomes more formal then, yes, of course, the process continues and becomes more difficult for all the stakeholders.
Senator Dagenais: I understand that avoiding an arbitration process prevents additional costs. I imagine that's sort of the goal, isn't it?
Mr. Rochon: Let me clarify. Ultimately, there will still be a number of decision-making duties that will use arbitration. What will happen is that, instead of leaving the responsibility to arbitrators appointed on a case-by-case basis, or leaving the responsibility to our current appeals officers, these responsibilities will be transferred to the Canada Industrial Relations Board.
So there will still be a role, a decision-making duty. The goal isn't to save money as such. Obviously, if there are savings, everyone would be happy, but ultimately, the objective is to improve the effectiveness and functioning of the processes, and to ensure that the parties can make fair and timely decisions.
Senator Dagenais: It will be kind of a mediation role, basically.
Mr. Rochon: What's important to understand is that, in certain cases, inspectors play a mediation role in certain types of complaints. The board may also attempt to resolve certain disputes but, in some cases, if the parties can't agree, it may be necessary to take a decision, and the decision-making role is transferred to the Canada Industrial Relations Board.
Senator Dupuis: My question concerns your explanation of clause 333 of the bill, which deals with orders not to be reviewed by court. Should the decision be final, if I understand it correctly, it's already in place, and you are keeping it as is, but adding what is emphasized in the bill, to make it consistent with what's being added here?
Mr. Rochon: That's right.
Senator Dupuis: Since paragraphs (a), (b) and (e) of the reasons for judicial review are being retained, therefore, paragraphs (c), (d) and (f) are excluded. Can the application for judicial review be made under all of the paragraphs of section 18, or is that already in the existing version?
Mr. Rochon: In fact, this provision exists currently in this form. The only thing that is basically changing is a slight amendment that we're making here. There are many elements in Part I of the Code that cover industrial relations, and it's the part that really deals with the Canada Industrial Relations Board, its mandate, powers and duties.
As several of these duties will extend beyond Part I, to cover Parts II, III and the new Part IV of the code, amendments have been made to indicate in some cases that certain provisions apply only to Part I. In some cases, provisions will apply to the whole of the current code, and in others it will only apply to the current part. This provision refers only to decisions made under Part I of the code. That is why the words "made under this Part'' have been added.
Senator Dupuis: Okay, thank you.
Mr. Rochon: We are adding words to ensure that the provision doesn't change.
Senator Joyal: And under Part II?
Mr. Rochon: Parts II, III and the new Part IV will have their own similar provisions. That's why we want to make sure there's no confusion on any side.
Senator Dupuis: I have a supplementary question. If I understand correctly, you have consulted what you refer to as the "current triangle'' in labour relations. What interests me is moving to the Canada Industrial Relations Board. You say this will increase the consistency of decisions and the speedy resolution of cases.
In your three-year timeline, can you tell us where the transfer to the board fits in? I won't go so far as to ask whether these people are happy to have a new mandate and whether or not they have to accept the transfer, but I was wondering where that was in your transfer schedule, because we know that this isn't something necessarily evident in a machine that has existed for a long time.
Mr. Robertson: The bill sets out several transition periods, but this aspect is almost at the end of the process. We must ensure we have all the information we need to make a good decision and be able to make a smooth transition toward the organization.
Senator Dupuis: Thank you.
Mr. Rochon: I can add that there are also a number of provisions in the bill that provide for transition measures. Obviously, some files will be started even before the transfer. We are ensuring that the files can be closed by the arbitrator or the persons responsible so that we don't miss any files.
[English]
The Chair: Witnesses, thank you all for being here and assisting the committee in its deliberations.
Joining us for our second panel, from the Canada Industrial Relations Board, is Ginette Brazeau, Chairperson. Thank you for joining us. The floor is yours for an opening statement.
[Translation]
Ginette Brazeau, Chairperson, Canada Industrial Relations Board: Thank you, Mr. Chair and honourable senators, for inviting me to share with you some thoughts on your study of Bill C-44.
The Canada Industrial Relations Board is the tribunal responsible for interpreting and applying Part I of the Canada Labour Code, and for dealing with labour-related claims and complaints involving the federal private sector. We also have a very limited jurisdiction under Part II of the code with respect to complaints alleging retaliation for exercising a right under the health and safety regime.
[English]
The Canada Industrial Relations Board is a representative board. It is currently composed of 11 members: me as the chair; four neutral vice-chairs; and six members who are representative of employers, unions and employees, and who are appointed after consultation by the minister with stakeholders. When we hear and decide cases, we normally sit as a three-member panel composed of the chair or the vice-chair with two representative members.
We also have designated industrial relations officers that are located in regional offices and who investigate and mediate complaints and applications, thereby assisting the board in settling the matters that come before it or by defining and limiting the issues that need to be adjudicated by a panel of the board.
Bill C-44 transfers additional responsibilities to the board. In particular, the bill envisages the following — and I'm not going to list all of them, as you have heard the previous speakers talk in detail about those different areas that are being transferred to the board. Suffice it to say that we'll be responsible for adjudicating appeals under Part II of the code, health and safety appeals; adjudicating unjust dismissals, wage recovery and reprisals under Part III of code, relating to labour standards; and we'll also have new responsibilities for administrative monetary penalties review, as well as reviews of decisions made under the Wage Earner Protection Program Act.
These amendments essentially consolidate most, if not all, of the recourse mechanisms that relate to workplace disputes within one agency, our board. My view is that this approach is consistent with what is happening in several jurisdictions within Canada as well as across the world in countries such as Australia, New Zealand, Ireland and the U.K. It establishes a single window for complainants or applicants to have their disputes adjudicated or settled with the assistance of an agency that has expertise in the area of labour relations and workplace rights. It may assist in avoiding duplication of proceedings in certain cases and provide a consistent approach to adjudication and resolution of the workplace disputes.
As chair of the board, I am very pleased and honoured to be given this new mandate and to have the opportunity to work with our stakeholders to shape how these new services will be delivered by the board. In this regard, I intend to consult our stakeholders to get input from those involved in these processes to ensure we develop and implement structures that take into consideration their perspectives and needs and respond to their reality.
It is important to note, however, that these new responsibilities will likely double our caseload. The caveat that I have going forward is to ensure that the board is given sufficient resources to properly deliver on this mandate. I understand that it is the intention of the government to transfer the resources that are currently assigned to these various functions to the board. That includes the existing resources and staff that are assigned to the Occupational Health and Safety Tribunal. It also includes the resources that are currently expended by the department on the adjudication of unjust dismissals and wage recovery complaints.
As senators may be aware, since 2014, the board does not have its own staff and it doesn't have its own appropriated budget. A separate agency called the Administrative Tribunals Support Service of Canada was created by legislation and resulted in the consolidation of all staff and financial resources of 11 tribunals, including our board. This agency, the ATSSC, now has the authority over the budgets and all the staff of our tribunals.
As chair of the board, I have no authority over the staff, including our industrial relations officers who deliver the services directly to our stakeholders through mediation or other processes on behalf of the board. Yet, I am ultimately responsible and accountable for the mandate that is given to the board under the code.
While consolidation and aggregation of resources, particularly as they relate to back-office services, can result in efficiencies, I believe this legislated structure that was created goes much further. It raises, in my view, serious questions with respect to the sustainability of our institutional expertise and jeopardizes the board's ability to independently define the priorities and chart the course forward for this new and expanded mandate.
The ATSSC will be the agency receiving these additional resources for this new mandate, and I will work very closely with them to ensure that the proper level of funds, including those that will be transferred, is assigned to the board's work in order for us to deliver on this mandate. I am committed to ensuring that the transition is seamless and that the adjudication and mediation of workplace disputes are offered efficiently and as effectively as possible.
[Translation]
I will be pleased to answer your questions. Thank you.
[English]
Senator Baker: I thank the witness for her presentation again before our committee. She's been very helpful to the committee in deciding issues.
I noticed recently, in looking at the case law, that decisions of your board are appealed quite frequently to the Federal Court, and the Federal Court of Appeal beyond that, and the jurisdiction of the court is to send the matter back for readjudication.
This new responsibility that you're now undertaking involves fines that can go up to a quarter of a million dollars, as previous witnesses have testified, and one would assume, with this new responsibility and these new punishments, that there will be in fact more appeals in the future for your board.
Two questions in one: How will you be able to handle all of these reassessments if in fact the courts do order you in particular cases to readjudicate the matter, and how do you respond or how do you want us to consider the fact that there may be a conflict as far as your independence is concerned, from what I got from your statement? What do you hope this committee might be able to do to make recommendations for the amendments necessary before this committee?
Ms. Brazeau: First, the decisions of the board are judicially reviewed by the Federal Court of Appeal directly. They don't go to the Federal Court. They go to the Federal Court of Appeal.
My understanding, in reviewing the legislation that is being proposed, is that similarly, the new mandate, the decisions that we will make under these new provisions will also be reviewed by the Federal Court of Appeal on judicial review.
There are, as you mention, several applications that are made to the Federal Court of Appeal for judicial review. However, very few decisions are overturned.
Senator Baker: That's good for you.
Ms. Brazeau: That speaks, I think, to the expertise of the board and the consideration that we give when we make a decision.
On that basis, I'm not concerned that the result of judicial review applications will negatively impact the board to the point where we'll be unable to deal with the matters that are returned. It may be that initially judicial review will be sought more frequently because it is a new area and a new mandate for the board, and there may be a period where the parties will test that. That's a normal result when new provisions are enacted.
In response to that question, I think we'll deal with judicial review applications as we deal with them now. If the court gives us direction or an indication that we were wrong in a decision that we made, then we'll readjust and deal with those matters.
With respect to the second component of your question with the concerns that I've raised, in my view, there are options to be considered in order to allow the board to act independently or ensure that the board's expertise is not somehow diluted by the creation of this mega-cluster of administrative tribunals. It could range from an amendment to the ATSSC Act and remove the board altogether from the appendix in that act, or, alternatively, give the chair of the board some authority over part of the decisions that are made by the ATSSC. I think that would require a bit more thought into the drafting of an amendment to the act. I'm not sure if you want me to go further in that direction, but those are my initial thoughts on that.
[Translation]
Senator Boisvenu: Welcome, Ms. Brazeau. I'd like to ask you a few questions for clarification. Clause 246.1 of the bill makes sure that the party denying the retaliation must prove the contrary; the burden of proof is reversed. I would like to know what types of reprisals may be covered by this bill. Doesn't the fact that the burden of proof is shifted to the disclosing party risk provoking the consequences we're already seeing in our justice system, meaning, exaggerated delays or, quite simply, procedural abuses?
Ms. Brazeau: Thank you for your question. With respect to the new provision that gives the right to make a reprisal complaint for exercising a right under Part III, that is, labour standards, I think the previous witness gave some examples of complaints that could be made. He also gave the example of a person who took part in an investigative process by providing information to an investigator and, then, suddenly being disciplined while linking the two. That person could make that kind of complaint to the board.
If someone files a complaint about discrepancy in their annual leave, with this type of complaint, they may connect it to a disciplinary measure that they may have received. At that point, they can file a complaint with the board, and determine whether or not there is a connection, and whether, in fact, the disciplinary action is related to the action taken by the employer.
Senator Boisvenu: Let me go back to my basic question. In the majority of cases, the employer will have to demonstrate that there have been no reprisals.
Ms. Brazeau: When the burden of proof is reversed, it usually means that, when the complaint is made, it is a prima facie complaint; the onus is therefore on the employer.
Senator Boisvenu: In other circumstances, is there a reversal of that kind, or is it a unique case?
Ms. Brazeau: Right now, we have a complaints mechanism similar to the one in Part II of the code for employees exercising their rights under the health and safety regime. There is a burden of proof, but only for a certain type of complaint. If they exercise their right to refuse work, because they think there is a danger, if they file a complaint for reprisals because they exercised that right to refuse, the burden of proof is reversed in those cases.
Senator Boisvenu: You are not concerned about abuses or procedures.
Ms. Brazeau: We will have to evaluate those cases as they come up, but I think this is the type of case that we are able to manage according to our usual procedures.
Senator Boisvenu: I have one final question. You set the penalty at $250,000 in cases of violations. Was that amount set out of the blue or did you set it by drawing upon other pieces of legislation?
Ms. Brazeau: I was not involved in those policy decisions, which are more of a departmental responsibility. I have been asked whether we were ready, willing and able to review those decisions, which I accepted.
Senator Boisvenu: And that seems reasonable to you?
Ms. Brazeau: It is up to the department to answer those questions. We will implement the legislation as passed.
Senator McIntyre: Ms. Brazeau, thank you for your presentation. Bill C-44 would definitely be making a number of amendments to the Canada Labour Code by transferring the duty to assign appeals officers and adjudicators to the Canada Industrial Relations Board. Having said that, and with all of that in mind, why were new provisions introduced for the appointment of external adjudicators? On the one hand, you get rid of the adjudicators and, on the other hand, you appoint external adjudicators. So who can benefit from the new decision-making powers given to those people?
Ms. Brazeau: What I can say is that, right now, for the applications under Part II and Part III, there are lists of adjudicators used to process those applications. Now, as I pointed out in my remarks, we think the work that is going to be transferred to us will double the number of case files that we will have to process. I think this is a reasonable measure to allow the board to seek help, if necessary, and to seek out particular expertise as well. For example, for health and safety appeals, some cases are very technical and require people who have very specific knowledge and expertise. These measures will enable us to seek out that expertise to rule and decide on those cases.
Senator McIntyre: My understanding is that, right now, the chair or the vice-chair of the board can make decisions on their own. The amendment proposed in the bill would authorize a member appointed by the board, who is neither a chair nor a vice-chair, to make a decision on their own. My question is: How could the parties or the board benefit from that?
Ms. Brazeau: I will answer that question along the same lines as the previous question. I think the provision was already in the code to allow the appointment of members other than vice-chairs and representative members, specifically to seek particular expertise or to seek additional members who could deal with a specific type of complaint that would logically fall under the board. This provision has not changed. So I think the board will have that possibility. The minister will have the opportunity to appoint specific members to deal with matters under Parts II and III and the new Part IV of the code, or the chairperson of the board will have the opportunity to seek specific expertise with the assistance of an external adjudicator as required. I think the board will have the tools it needs to do the job.
Senator Dagenais: I wonder, because we are talking about the Canada Industrial Relations Board, and earlier there were other presentations that mentioned extreme procedure that could go as far as adjudication. I imagine that the whistleblowers facing reprisals are represented by unions. There are grievance procedures, if they are not satisfied. If the grievance is not settled, there is an adjudication procedure. Correct me if I am wrong, but it seems to me that you are replacing the adjudication or grievance process by trying to settle those cases within the Canada Industrial Relations Board. Therefore, grievance and adjudication procedures would be avoided, and costs would clearly be reduced because adjudication proceedings are very expensive. Perhaps that's my former union side. Could you explain that to me?
Ms. Brazeau: Thank you for the question. Part III of the code, and this new responsibility that will be transferred to the board, deals with labour standards for unrepresented and non-unionized people. It would be unrepresented employees basically filing a complaint against their employer. Right now, those complaints are initially handled by departmental inspectors, and if they are not settled at that stage, the cases are forwarded to an external arbitrator. What is being proposed here is that, instead of referring the case to an external arbitrator, it will be referred to the board to decide on the matter. So, as I mentioned earlier, we will be able to appoint an external arbitrator or use our own internal resources to make a decision. This is different from the grievance procedure, which is a procedure set out in collective agreements when employees are unionized and represented by a union. That's where the difference lies.
Senator Dagenais: So, if I understand correctly, this is for sectors or industries where employees are not unionized.
Ms. Brazeau: In terms of the measures under Part III of the code, yes. As for the health and safety regime, some employees are unionized, some are not. In those cases, when an employee is unionized, the union will often appear as a party to the case.
[English]
Senator Joyal: I will ask you the same question I asked your predecessor witnesses today. Did you have any consultation with union representatives during the course of the discussions you had with the department about those changes?
Ms. Brazeau: The board has a client consultation committee, and I meet with that committee three times a year. I did ask whether the proposed changes were a welcomed change for the community. The response was very positive in that they see this as an opportunity to consolidate, to provide a single window, to stabilize and have a uniform process and to have consistency in the decisions and the decision-making process. I think the community views the fact that they are consolidated into one agency in a positive light.
Senator Joyal: Was it based on a list of former cases whereby you recognized that there were differences of approaches and interpretation that needed to be streamlined to make it fairer for the employee, or was it an initiative taken essentially for the purpose of the administration, deeming it more efficient and easier to administer? In other words, who is winning from that approach?
Ms. Brazeau: I cannot speak for the department and the policy decisions they made in moving forward with these changes. As the chair of the tribunal that will take on these new responsibilities, I think it is a good change for the users of this system because the complainants essentially will have to deal with a single entity when they have to adjudicate their matters and bring them to an adjudicator. I see benefits for them in that the process will be similar. It will be a more timely process. I think the previous witnesses talked about when you have ad hoc adjudicators, it's difficult to have a consistency in the process and the approach. This is beneficial for all involved.
The Chair: Are there any further questions for Ms. Brazeau? Seeing none, thank you very much for being here. We appreciate your testimony.
Joining us for our third panel, from the Canadian Labour of Congress, we have Hassan Yussuff, President, and Mike Luff, Senior Researcher; and from Federally Regulated Employers ± Transportation and Communications, Derrick Hynes, Executive Director. Welcome, gentlemen.
Derrick Hynes, Executive Director, FETCO: Thank you, Mr. Chair. Thank you for this opportunity to speak on Bill C-44.
I represent FETCO, an employers association of federally regulated firms in the transportation and communications sectors. We have existed as an association for over 30 years. Our members employ more than half of all workers in the federal private sector. FETCO members are household name organizations. A list of our members will be in the appendix of the document I left with you today.
FETCO has a track record of effective tripartite engagement in federal labour relations under the Canada Labour Code. This tripartite model includes Employment and Social Development Canada, or ESDC, as the voice of government; the Canadian Labour Congress, as the voice of labour; and FETCO, as the voice of employers.
The changes proposed in this part mainly deal with government's desire, as the regulator, to more appropriately enforce certain provisions of the Canada Labour Code. These changes are targeted specifically at employers believed to be repeat offenders under the code. I will argue that FETCO members are not the target audience for these proposed changes, but they do have the potential to affect us, so I am pleased to be here to comment.
The time allotted today does not permit me to go through the proposed budgetary changes one by one. As noted, I will leave you a formal submission that captures comments from FETCO for each of the proposed changes. I will focus today on some key messages.
First, it is important to note that FETCO members were concerned to see changes to the Canada Labour Code proposed in this budget bill. Some of these changes were a surprise to us. Given that most are not actually money- related matters, it would be our expectation that they would form part of the normal tripartite process for changes to labour-related legislation in the federal sector. Capturing this change in a budget bill is not really in keeping with the spirit of that approach.
We believe that consultation makes for better legislation. It is, therefore, our expectation — and we heard this earlier — that any subsequent regulatory change related to the Canada Labour Code that flows from Bill C-44 should follow this tripartite approach. We have done it this way for decades in the federal sector. Representatives of management and labour should continue to be a productive part of these solutions.
That said, the second key message is that we appreciate the invitation to provide comment to you on these changes. In short, FETCO has no significant philosophical objections with the proposals set out in this part of the budget bill. We are supportive of ESDC's role in enforcing the Canada Labour Code and its associated regulations. We make best efforts to comply, and we respond accordingly when unintended contraventions occur.
Finally, any new powers extended to ESDC and its officers should be approached cautiously to ensure they contribute to the objective that is being sought here, and that is increased compliance under the Canada Labour Code for repeat offenders. The changes should not be construed in any way as a substitute for voluntary compliance under the code. We should not aim to fix what isn't broken.
While there are many changes proposed in this part, let me spend my remaining time on the issue of Administrative Monetary Penalties. It is our belief that any new system related to non-compliance under the code should be directed at those with a track record of non-compliance. In a pre-consultation on this matter, FETCO has already suggested a number of guiding principles that should be followed in setting up such a framework. Time does not permit me to go into a lot of detail, but I will briefly present some of the key points from that submission.
Any new penalties developed should not become substitutes for voluntary compliance under the code. Earlier steps in the process, the use of AVCs and/or directions should not be skipped by an inspector to go straight to a penalty.
Subjective discretion of inspectors should be avoided. This can be accomplished through a clearly defined process. The same rules should apply to all organizations.
Penalties should be intended to enhance compliance via changed behaviours, not to punish. Penalties should be focused on those most offending and should be administered only after voluntary compliance actions have had no effect.
Any new process should include a clearly defined appeal mechanism, and corporate and individual responsibility must be considered when penalties are considered.
Thank you for the time and the privilege of presenting to you. I'd be happy to take any questions on the specific clauses in the bill. We do have a number of individual comments, as I noted earlier.
Hassan Yussuff, President, Canadian Labour Congress: Good afternoon, chair. I want to thank you on behalf of the 3.3 million members of the Canadian Labour Congress for the opportunity to present our views on Division 17 of Bill C-44.
The current government was elected on a commitment to modernize our employment standards in light of the changing nature of the workforce, the workplace and the economy. We're pleased that you are acting on some of this commitment.
Bill C-44 aims to update and strengthen the compliance and enforcement mechanisms under the Canada Labour Code. This legislation is timely, given, of course, the government proposal to extend parental leave and grant workers the right to request flexible work arrangements.
I'd like to make four general comments about Bill C-44. First, the budget should include new money to hire more inspectors for health and safety and employment standards.
The Chair: Slow down just a bit for translation purposes.
Mr. Yussuff: Bill C-44 streamlines the appeal and complaint process under the Canada Industrial Relations Board, but this complaint-driven system of enforcement is reactive and, on its own, won't achieve the desired results. The government should allocate more resources for a stronger proactive approach that will increase the number of inspectors and identified violations.
Second, Bill C-44 transfers to the CIRB the duties of Part II appeals officers and Part III adjudicators for compliance about unjust dismissal. This reform might create a more efficient process, but only if the government gives the board sufficient resources to handle these new functions. If that happens, of course, then this reform could lead to a more timely and fair outcome, but, if the primary motivation of this reform is to cut costs, then it will create longer delays and undermine the rights of workers to procedural fairness and justice.
This is what happened when the previous government streamlined EI and CPP appeals under the Social Security Tribunal. The SST was clearly driven by cost-cutting motivation and has been a disaster. It's a complex and alienating system. Processing time for appeals has skyrocketed. In-person hearings have almost been eliminated, and summary dismissal has been misused.
It is also important to note that CIRB members have the expertise with labour relations issues. Bill C-44 requires the board to have specialists that can deal with the complexities of health and safety and employment standards issues. There is also the crucial issue of impartiality when it comes to these new appeal functions. If a worker files an appeal under Part II or Part III of the code, will it be reviewed by an employer or un-nominated member of the board? All of that is to say that the government must provide the CIRB with adequate resources so that it has the staffing levels and expertise required to handle these new functions and to ensure that the process is fair, flexible and swift for workers.
Third, Bill C-44 proposes administrative monetary penalties and the authority to publicly name employers who violate the provisions of the Canada Labour Code. We support this, but, once again, these tools are reactive, and they are pointless if there aren't enough inspectors. If there is little chance of an employer getting caught, these penalties wouldn't be a deterrent. These penalties were added to the Temporary Foreign Workers Program, but the public non- compliance list is up to a general total of seven bad employers. The maximum fine imposed so far is $1,250. Sadly, this abuse of migrant workers continues.
Fourth, Bill C-44 transfers the duties of an adjudicator under the Wage Earner Protection Program to the CIRB. We have long-standing concerns about the program. These concerns include a cap on payments that is way too low, an application process that buries workers in red tape, the challenge for workers to navigate both the EI system and the WEPP process with very little support and few realistic options for workers if they disagree with the unpaid wages amount assessed by a trustee or a receiver. A small reform in Bill C-44 would address the range of issues that workers face under the WEPP in recovering wages owed to them when a company goes bankrupt. I brought the copies of the submission of the five-year review of the program and urge the government to act on these recommendations.
Once again, I want to thank your committee for the opportunity to present here today, and I would be happy to take any questions you might have.
[Translation]
Senator Boisvenu: Let me welcome our guests. My questions are for Mr. Hynes. The first question is about clause 246.1, which allows the burden of proof to be reversed in cases of reprisals. Do you think this new procedure will encourage delays or abuses? Are there any other procedures that should have been used, such as binding arbitration, rather than this approach that puts the onus on the employer?
[English]
Mr. Hynes: Thank you for the question. I have to honestly tell you I don't really have an answer to that question. We had not really dug into this specific section in detail enough in the time permitted since we learned about these changes, so I don't really have a response to give you at this time.
[Translation]
Senator Boisvenu: At the outset, you said that you were surprised by certain provisions in the bill. The federal government has had a culture of tripartite consultation. How do you evaluate the quality of the consultation in relation to the amendments that will be made? You previously said that you were surprised to see some of the recommendations in the bill.
[English]
Mr. Hynes: That's a good question. I can say with confidence — and I think the colleagues to my right will agree — that we do have a very productive level of engagement with the department in this tripartite way. We have engaged quite substantially over the last number of decades on any number of issues within the federal sector as it relates to matters under the Canada Labour Code. In the past year alone, there have been a large number of issues around flexible work, pay equity, accessibility and Bill C-4, as we spoke to here a few months back.
Some of these changes were a surprise to us. We did have some focused discussions around the administrative monetary penalties. I would say that, in terms of some of the other changes that have been described in the budget bill, they were not areas that we had focused consultations on, so we are finding ourselves, at this point, playing a little bit of catch up to try to understand what the implications of some of the changes might be. They do, on the surface, seem to be quite reasonable as we have reviewed them to date, but we do look forward to further consultation as we go through this process and develop any corresponding regulations that will flow out of this change to the legislation.
[Translation]
Senator Boisvenu: First, you are saying that the consultation does not seem to have been ideal. Second, you are saying that you did not have enough time to come to grips with this bill. Have you tabled any amendments to the bill in committee that would meet your expectations?
[English]
Mr. Hynes: We did not put forward any specific amendments. What we have tabled with the committee in the appendix of our submission is a number of guiding principles that we think should be considered with respect to each of the individual changes that have been proposed to ensure that, as we walk through the regulatory process, concerns that will be raised by the employer community will be given a proper process to go through to ensure that our concerns are heard. I am reasonably confident that that will happen. Certainly, we have past experience to draw on in that regard, and our relationship with the department and with the Canadian Labour Congress is quite positive, and we feel that we can work through some of these issues. So, yes, I did table some comments for you for your consideration in this regard.
Senator Lankin: My question is to the Canadian Labour Congress. Mr. Yussuff, the document that was provided is the 2014 review that was done of WEPP. I wonder whether we will be receiving copies of your remarks; I would appreciate having that. I was interested in looking at some of the concerns that were raised there and some of what I read in the notes from the department with respect to the changes.
It appears that some things, like the extent or amount of repayment, may be increased by these amendments, but I didn't see anything, for example, with respect to your concerns about companies that are headquartered outside of Canada and bankruptcy and what the concerns are of workers attempting to secure lost wages in that situation or unpaid wages. Could you just comment and update us a bit on where you think some of the amendments that are being brought forward under this bill actually improve where the concerns were and where your biggest concerns are left unaddressed?
Mr. Yussuff: I want to support the direct comments earlier. First and foremost, I think transferring these powers to the CIRB, we have a lot of confidence in the CIRB as an institution that serves both this independence in adjudicating matters, both for employers and employees. We certainly feel confidence, and the confidence of the CIRB will be met in regard to its new duties. But fundamentally, it has to be given the appropriate resources to carry out those duties. That, of course, will be critical. In the absence of that, it's not fair for the CIRB to be given these powers without new resources.
The WEPP has been around for quite some time. Its initiation comes as a result, back in the 1980s and late 1990s, of a series of bankruptcies and workers left having to deal with those challenges. It's an innovative program. It's a national program right across the country. It doesn't matter whether you work in a federal or provincial jurisdiction, you can make a claim. It's limited in regard to what you're able to receive. But the reality, of course, is that we have long argued, and there has been one improvement to the WEPP since its creation. In the 2011 budget, there was a slight increase in the WEPP amount claim, but we believe it is inadequate in regard to the amount of money that workers can claim.
What we have recommended to the department in the review — and we are waiting to see what the government will do — is to take those experiences that we have put forward and hopefully improve the WEPP to a large extent. Most of the money that is collected from the WEPP is able to be recouped from bankruptcy assets of the company once the government is able to make their claim. We do believe there is an option for the government to review and to look at our recommendations in regard to what we have proposed. We believe they are timely and necessary after five years. I think enough experience has been gained.
More importantly, I think we need to do far more to promote the WEPP. Far more often, workers don't know the program even exists, much less to make a claim. It's too complex in many aspects for people having to navigate the red tape to file a claim under the WEPP. It's unfortunate because, as you know, when you do lose your job and the company goes bankrupt, there are not many avenues left for you to go through. Your vacation pay and severance pay, all this is included under that small claim you can make, and in no way does it meet minimum standards across this country, whether it's a provincial jurisdiction or, certainly, within the federal jurisdiction.
Senator Lankin: Help me, then, please. Perhaps I misread or misunderstood what I heard earlier. The increase in amounts and caps for payback are not with respect to WEPP. It's with respect to the general labour standards provisions under Part III. I understand that. So these issues are still outstanding, as far as you're concerned. You're bringing them to our attention, but they are not particularly addressed in the budget bill.
Mr. Yussuff: The budget bill just transfers the adjudication of making a claim to the department.
Senator Lankin: No, there are some other minor changes.
Mr. Yussuff: Yes, but nothing major on the WEPP itself. The WEPP is a separate review.
The amount, in terms of the cap, is not even the Canada Labour Code Part III. It was actually established when the WEPP was created. We're hoping the review will lead to some improvement. We are waiting to see what the government response will be.
Senator Lankin: Thank you. That helps a lot.
[Translation]
Senator Dagenais: My question is for Mr. Hynes. I share your opinion when you say that you are a little surprised to find those elements in Bill C-44, which is a kind of omnibus bill. As we say, something fishy seems to be going on, and I sort of share your surprise.
What do you think would be the sectors or industries that might be most vulnerable to administrative monetary penalties in this bill? Why might those industries or sectors be at the highest risk?
[English]
Mr. Hynes: I think that question is probably better answered by the department. The department representatives who were here earlier did speak to some analysis that they have undertaken around repeat offenders under the code and the penalty structure that could be imposed to ensure greater compliance under the code.
I can speak confidently that the employers that I represent make all efforts to be fully compliant under the code, and where it does not occur, we make best efforts to fully comply. I don't know the specific sectors in question that would be captured by this bill. Presumably there are repeat or serial offenders under the Canada Labour Code who perhaps need to be encouraged to comply, but I do not have that data at my fingertips.
[Translation]
Senator Dagenais: I also have a question for Mr. Yussuff. Mr. Yussuff, you mentioned several times that it is important to hire staff and add resources to speed up the decision-making process. What are the current delays and what would be the future delays with the addition of staff? Would the delays change? You talk about shorter turnaround times. Are you able to give us an idea of how much shorter?
[English]
Mr. Yussuff: I think with the CIRB now having to deal with these complaints in the absence of new resources to hire staff, to process complaints in a timely manner, the board has had a long experience in what timeliness is in terms of a complaint that comes before them. We expect that within a reasonable time, you should be able to get an answer and, hopefully, have your case resolved. It should not go beyond several months to get an answer. That will require having people do their proper due diligence to ensure that whatever the response is, it is adequate in regard to the complaint.
Similarly, we make the argument that deterrence and preventing complaints from happening is the best order. Our argument is that the department should have more inspectors that can inspect the workplace and, of course, assist the employer to meet their responsibility if they are not currently doing so. Far too often, workers having to complain about something is too far gone, and they should try to deter them from that practice in the first place.
Senator Joyal: Mr. Yussuff, I'm glad to see you today, and Mr. Luff and Mr. Hynes. My first question will be more of a general nature.
As you know, one of the important elements in determining a peaceful environment for work is a balance between the rights of the administration or employers and the rights of the employees. Do you see anything in this bill that would contain the seeds that, in the medium or long term, would change the balance that exists presently, to which I would understand you're satisfied?
Mr. Yussuff: No. I do not see anything in these proposed changes that would tip that balance. I think it's just transferring the power from where it currently resides over to the CIRB. From both sides, we can say that we have full confidence in the CIRB being, of course, a fair and balanced adjudication regime in the federal government. We have a lot of confidence in it. We have worked to strengthen it and, of course, to ensure it meets its responsibility that we have continued to support.
Senator Joyal: I see Mr. Hynes moving his head. Could you explain it from your own experience?
Mr. Hynes: I don't disagree with what Hassan is saying. While we were surprised with the specific content of some of these changes, they seem, on the surface, to be quite reasonable.
I could not sit here and tell you that employers are looking for ways to get away with not complying with the code. We meet with the government regularly. We want to be law-abiding organizations. The organizations that I represent make best efforts to comply with the Canada Labour Code. There are thousands of provisions within the code and its associated regulations.
It appears, at least on the surface, that what we're trying to do here is find some administrative efficiencies to ensure that the regulations are enforced effectively and efficiently.
Senator Joyal: In the same broad context, is it your reading of the bill that any of the responsibility that you have with your members to accompany them, to support them in those proceedings and to be mindful of the outcome and how it has been dealt with after, has that in any way, shape or form changed in the bill or been affected in the bill?
Mr. Yussuff: No, I don't think so at all. All of the support we provide to members currently will continue under the new structure with the CIRB. We are confident that we would not change our approach to the CIRB. The CIRB has a very formal process if you want it to be, or it could be an informal process. It depends on the parties' engagement in that regard. I am very confident that we don't see any discerning change in regard to the approach to getting a remedy, whether it's through the CIRB or what we are dealing with currently in the labour program.
Mr. Hynes: I don't disagree. In theory, it could become more efficient to the point that Ms. Brazeau made earlier. We could end up with more of a single-window approach to finding our way through appeals and adjudications that on the surface seems like it's a good idea. Removing that appeals process from the minister's mandate, and getting that separation seems to be quite reasonable as well. I don't foresee any complications resulting from some of these changes as a result.
I have made comments previously about going through the regulatory process, ensuring the parties are consulted heavily so we come up with a solution that works for all the parties. That is certainly one thing we always want to be mindful of.
When we get into things like penalties, we want to ensure that the penalty fits the crime, that it really gets to the objective here. If the objective truly is to get to that handful of organizations that might be under repeat violations of the code, then that does seem reasonable, but we certainly don't want to be in a situation where inspectors have new- found authorities to jump right to penalties. Our objective would be to find our way through that regulatory process with the right balance that works for all the stakeholders.
Senator Joyal: We understand that the ensuing regulations from those sections of the bill will be developed in coordination with yourself and other various representatives involved in the formulation of the proposed regulation. Is that the way it happens on a daily basis with your organization?
Mr. Hynes: Yes. My conversations with the department lead me to believe that the next three years will be our window to engage in that consultation and develop the regulations in a way that makes sense for all the parties. Yes, we do this almost on a daily basis. We have ongoing dialogue with the department as we go through the regulatory process.
Some of these documents are huge. The Canada Occupational Health and Safety Regulations is a document with a lot of clauses. In a tripartite way, we try to work our way through changes to those regulations on an as-needed basis. We work in a consultative way with the Canadian Labour Congress and also with department officials.
Mr. Yussuff: Pretty well the same. Our approach has always been to try to find the collaborative approach to ensure that what we currently know in terms of the regime for enforcement will not be lost as these powers are now transferred over to the CIRB. As you write regulation, the challenge is to ensure you get it right and to ensure you're not missing something in the process that will have to be remedied later. The CIRB will rely heavily on what the regulatory mandate is in carrying out their function. We don't want to ensure gaps in what we currently know as to what will be the new regime going forward.
The CIRB has a very good track record in not having to deal with many judicial reviews regarding its decisions, and there are many decisions the CIRB renders on a regular basis in regard to our joint interests. It has been a profound reflection of the commitment to its responsibility but also the care which they take in making decisions that are consistent with the mandate given to them under Parts I, II and III and now the code that will go forward.
Senator McIntyre: Gentlemen, thank you for your presentations. In reviewing the proposed amendments to this bill, your input is very helpful. We are hearing the voice of government, the voice of labour and, of course, the voice of employers.
Mr. Hynes, Division 17 of the bill is proposing a new internal audit and corresponding report requirement. To what extent would employers be affected by this change requirement?
Mr. Hynes: The change might most significantly be felt by those who find themselves, I guess as we discussed earlier, repeat offenders under the code. As we look at this recommended provision in the act, our guiding principle on items like this is as long as these new items don't become a substitute for voluntary compliance, which in most cases works quite effectively, then it seems quite reasonable that where there cannot be traction with an employer on an issue like this, that an internal audit seems to be a reasonable approach to take.
Senator McIntyre: What would be the financial impact, if any, in imposing administrative fees on employers that are subject to payment orders, imposing administrative monetary penalties for contraventions of certain provisions of the Canadian Labour Code?
Mr. Hynes: Well, they could be enormous. We are very concerned about it. I'm not sitting here telling you that employers think administrative monetary penalties are a wonderful thing. We think that if the intention of a monetary penalty is to get to the root of non-compliance under the code, then that does seem to be a reasonable avenue to pursue; but as I have noted in my submission that I have shared with you, we believe that this should be approached cautiously. It really should target those who are repeatedly non-compliant under the code. The punishment should fit the crime. The penalties should be used in such a way to encourage or increase compliance, not to punish employers.
As I noted in the answer to a previous question, we have no real philosophical objection with the use of AMPs. They are used in other jurisdictions; they are used in other departments. We believe we need to step through this cautiously via a consultative approach as we develop these regulations and see what they look like.
Senator McIntyre: I have a question to the Canadian Labour Congress concerning the proposed changes to the Wage Earner Protection Program Act. With respect to appeals from the minister's decisions, what is the rationale for proposing to transfer the powers, duties and functions of adjudicators to the Canada Industrial Relations Board?
Mr. Yussuff: I can only assume from our perspective it will be to get matters dealt with in a more expeditious manner, and putting all the regime for enforcement under a one-stop shop location will be helpful for employers to know consistency and the expertise that will be developed over time, and then administering and dealing with this. Also, for us and workers who may seek remedy, at least they know where you can go to get some consistency.
The board has always had some consistency in applying their oversight on regulation and legislation that they have to enforce, so we're hoping it will make it more expedient for us to get things dealt with in a timely manner. But again, we caution this will be the case providing that the CIRB gets the resources necessary to ensure they can get the expertise that will assist them in their responsibility.
Senator McIntyre: There is no question there will be a lot of concentration of power now in the hands of the board. The minister is losing some power, in a sense, regarding the appeal decisions. Has there been any straight discussion with the minister on this issue?
Mr. Yussuff: My experience has been that on legal matters I don't think ministers should have the ability to decide. These are matters to be best put in a place like the CIRB because they adjudicate and make decisions without having to concern themselves around the politics, whether it's pressure from the employer or pressure from the union in regard to their decision. It would be far more effective for the CRB to have these powers.
Too often, we think ministers are too political in dealing with issues. They might feel, "Well, I don't want to deal with that, because I am going to get lobbied and I don't want to make that decision.'' In some cases, as we saw previously with changes to the right to refuse, where the minister was ultimately the body they would go to for appeals, we felt it was far too political, because it was the minister's staff making decisions in the field and now she's going to decide whether she agrees with those staff. There seems to be some contradiction in regard to the objectivity of the ministers.
[Translation]
Senator Dupuis: Mr. Hynes, first of all, thank you for the document you forwarded to us. On page 5 of that document, three paragraphs mention "the high, objectively-assessed degree of gravity.''
In clause 270 of the bill, in the regulations that the government will be able to adopt, paragraphs (c) and (d) appear to have been drafted after discussions based on your document, meaning that there is already a provision for the government to establish criteria to reduce the penalty. So the penalty would be reduced. In paragraph (d), it is a matter of determining a lesser amount than the penalty imposed, in the manner prescribed by regulation.
I was wondering whether you discussed this particular aspect of the clause in the bill.
[English]
Mr. Hynes: No, not particularly. There was a pre-consultation meeting held with the department officials on the concept of administrative monetary penalties. The guidance that we've provided in the document I've given you today is almost word for word the guidance we provided the department. Our recommendation was that if we are to find ourselves in a situation where we do introduce administrative monetary penalties, these are some of the concerns we have. Those were some of the ones we brought forward at that time.
The Chair: We have time for a very brief second round. I have two senators who wish to ask questions. Hopefully, we can get them in on time, because we are pressed for time. I'll remind members that we have an in-camera session following this. Concise responses would be helpful as well.
[Translation]
Senator Boisvenu: My question is for Mr. Hynes. Could you tell me whether you are comfortable with the idea of the board members not being held liable, either civilly or criminally?
In addition, the bill will make the names of offenders public. Are you comfortable with that as well?
[English]
Mr. Hynes: I can speak to the second item first. On the naming of offenders, I would say employers generally are not particularly comfortable. It should come as no shock to anybody that the naming of names in situations where there is non-compliance would not sit comfortably with the employer community.
We understand the underlying objective. Just by way of background, currently with the system, we have voluntary compliance. On the continuum between voluntary compliance and criminal prosecution, there are limited opportunities available to the department right now to enhance compliance beyond voluntary compliance and then the issuance of directions. Philosophically, we can understand why the department might be looking for a way of filling that gap. But to the point of going as far as naming names, I would say the employer community is generally not comfortable with that concept.
I didn't quite understand the first part of your question around immunity.
[Translation]
Senator Boisvenu: The bill is proposing that board members not be liable, either civilly and criminally, for anything done or omitted to be done by them in good faith. Do you agree with the limitation of liability set out in this bill or are you uncomfortable with it?
[English]
Mr. Hynes: We have not reviewed that portion of the bill. I do not have a comment, I'm sorry.
Senator Joyal: I have two very quick questions. Mr. Yussuff, you mentioned that very few decisions of the board are appealed. Do you have an idea roughly of the proportion? Is it 10 per cent or 5 per cent? It's just to give us an idea of the balance.
Mr. Yussuff: I would say it's less than that.
Senator Joyal: My last question is in terms of repeat offenders. All the witness that we have heard today used that expression "repeat offender.'' My first reaction was "who are they?'' I don't want names, of course. Then I was, in my mind, rephrasing the question: Are there sectors of activities where repeat offenders are more common than others, or is it, as we say in the civil code, intuitu personae, because there are people who happen to be offenders by "bias''? Or is it because a certain nature of some activities is more prone for offences to happen?
Mr. Hynes: I can't answer that question. That information would be more readily available from the department. As I noted earlier, I can speak with certainty that I represent a group of employers who are not in that category. Are there some? I presume there are, because that was the presentation earlier from the department officials. I don't know what sectors they might be in or who they might individually be.
Mr. Yussuff: When the department did a review of the Canada Labour Code Part III, what was pretty evident in the research is that, in a number of specific areas, they could list the repeat offenders in regard to certain violations about which the department was fully knowledgeable. That evidence was gained maybe 13 or 14 years ago when they did the review of the labour code Part III. The department might be more than happy to submit them, if they have updated their records since then.
Senator Joyal: Thank you very much for the answer.
The Chair: Gentlemen, thank you all for being here. It was helpful testimony and much appreciated.
Members, we are going to suspend to give you time to stretch your legs. Then we will move in camera to provide guidance for our analysts for preparation of our report on Division 17.
(The committee continued in camera.)