THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, February 1, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, met this day at 4:15 p.m. to give consideration to the bill.
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.
This is our first meeting of 2017. This is a much-expanded committee in terms membership. I don't do this as a rule, but given the new members on the committee and for the viewing audience, I'm going to ask members to identify themselves. We'll go around the table; please tell us the province that you represent.
[Translation]
Senator Dagenais: Senator Jean-Guy Dagenais from Quebec.
[English]
Senator Batters: Senator Denise Batters, from Saskatchewan.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Boniface: Senator Gwen Boniface, Ontario.
[Translation]
Senator Pratte: André Pratte from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator White: Vernon White, Ontario.
[Translation]
Senator Dupuis: Renée Dupuis from Quebec.
[English]
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator Baker: George Baker, Newfoundland and Labrador.
[Translation]
Senator Bellemare: Diane Bellemare from Quebec.
[English]
The Chair: Bob Runciman, Ontario.
Thank you all, and welcome to our new members. I think we all know that this is going to be somewhat of a challenge with respect to time constraints. This is a committee where participation levels are always high and members want to play a role. The veterans of the committee know that I can be pretty tough in terms of timelines. Going forward, the pressure might be on you even more. Hopefully you will all keep that in mind.
Senators, today we begin our consideration of Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act. We have with us today, to start things off, the Minister of Employment, Workforce Development and Labour, the Honourable Patricia Hajdu.
[Translation]
Lori Sterling, Deputy Minister of Labour, Employment and Social Development Canada: Good afternoon everyone. My name is Lori Sterling, and I am the Deputy Minister of Labour.
[English]
Minister Hajdu has clearly been held up and we're trying to track her down. I have a suggestion. Basically there are three speakers today. If you'd like to start with the second speaker pending her arrival, we could do that. Alternatively, I'd prefer not to go ahead without her because she has prepared to appear before you.
The Chair: If members agree, I think we will listen to the second and third participants and hopefully the minister will arrive while that's occurring.
Ms. Sterling, are you leading off?
Ms. Sterling: After the minister, I think the next speaker would be either —
The Chair: You're talking the second panel.
Ms. Sterling: The minister was the exclusive speaker.
The Chair: That's a bit of a challenge. I don't know if we have all of our witnesses for the second panel present.
The Chair: I think you are attempting to track her down? You don't have any idea where she is?
Ms. Sterling: We are frantically phoning. I worked with her to prepare, so I know she's anxious to be here.
The Chair: We'll suspend for five minutes. We will hopefully determine her location and her arrival time.
(The committee suspended.)
——————
(The committee resumed.)
The Chair: Come to order, please. We’re all set?
Appearing now, we have joining us from the Canada Industrial Relations Board, Ms. Ginette Brazeau, Chair. From the Canadian Labour Congress, we have Mr. Hassan Yussuff, President; and Mr. Chris Roberts, Director, Social and Economic Policy Department. Also joining us is Mr. Bruce Ryder, Professor, Osgoode Hall Law School at York University.
Please go ahead with your opening presentations.
[Translation]
Ginette Brazeau, Chairperson, Canada Industrial Relations Board: Thank you, honourable senators, for inviting us to provide information relevant to your study of Bill C-4.
The Canada Industrial Relations Board, or CIRB, is the tribunal responsible for interpreting and administering the Canada Labour Code. The board handles applications for certification and revocation, as well as unfair labour practice complaints. In addition, the board considers issues related to essential services and applications involving lockouts and unlawful strikes. The board has jurisdiction over matters in federally regulated industries, including air and railway transportation, interprovincial trucking, shipping, stevedoring, broadcasting, telecommunications, grain handling and banking. These are all key industries that drive Canada’s economy.
[English]
Let me turn specifically to certification and revocation applications to which Bill C-4 applies. We distributed a document earlier that provides detailed data with respect to certification and revocation applications filed with the board. I will not go through that document, but I thought that it would be a good background piece for you to consult if and when you have questions about the files that we deal with at the board.
In a nutshell, the board receives, on average, 92 applications for certification per year and 16 applications for revocation per year. This represents approximately 16 per cent of our workload. Although it varies from year to year, the board certifies approximately 65 bargaining units per year, affecting, on average, 2,600 employees every year.
It's also of note that the average size of bargaining units that we deal with is 61 employees — very small units. In fact, if we look at the past 18 months, 60 per cent of our applications involve units of 15 employees or less. So we deal with very small units, and they are located all across Canada.
When Bill C-525 came into force in June 2015, that legislation had the effect of removing the board's discretion to grant a certification on the basis of membership evidence. The current system in place leaves the board with no discretion, and we must hold a vote in every case.
We've now worked under this legislation for 18 months, and I can offer the following observations. Even though the legislation does not provide a time frame for conducting votes, the board implemented rules of procedure by which we have strict timelines for the parties to submit their positions. We order the votes within 12 calendar days, and we start conducting the votes within 18 calendar days, on average.
In the majority of votes that we count, the results of the vote confirm the level of support that the union demonstrated at the time of filing their application.
The number of unfair labour practices complaints that are directly related to applications for certification or revocation have increased under Bill C-525.
Finally, the focus and the high priority that we give to these files in order to conduct the votes quickly has resulted and had an impact on our ability to deal with other types of applications that come before the board, resulting in an overall increase in our processing times.
Bill C-4, the bill that you are studying today, would revert the system back to what we had in place for over 40 years and which gave the board discretion to make a determination based on the facts of each case. The board had in place a rigorous investigation process that involved the testing and verification of the membership evidence. In determining whether to grant a certification or revocation, the board would assess whether it was satisfied, given the facts of the case, whether a majority of the employees in the unit wished to be represented by a union. If there were questions for the board with respect to the membership evidence or the true wishes of the employees, the board could and did order votes in those cases. In fact, we held votes in approximately 15 per cent of all applications before the board.
At the end of the day, the board's role is to ensure that employees can express their wishes for or against union representation freely and without interference. I believe the board could do that effectively under the previous system, the one that Bill C-4 proposes to reinstitute, as it does currently under the mandatory vote system.
I'll leave it at that. I would be happy to answer any questions you may have about the current system or the previous system that we had in place.
The Chair: Right on time. Thank you.
Hassan Yussuff, President, Canadian Labour Congress: Good afternoon, chair and honourable senators. On behalf of the 3.3 million Canadian Labour Congress members, I want to thank you for the opportunity to present on Bill C-4.
The CLC brings together national and international unions, along with the provincial and territorial Federations of Labour, and the 130 District Labour Councils across the country. Our members work in virtually every sector of the Canadian economy and occupation, including workers under the federal jurisdiction.
The current Government of Canada was elected, of course, in October of 2015, partly in a commitment to restore a fair, balanced and evidence-based approach to labour relations in our country. Bill C-4, which acts on this campaign commitment, fulfills the promise to restore balance in the federal labour relations regime. We are pleased that the government is acting on this commitment.
Two private members' bills, Bill C-377 and Bill C-525, upset this balance. These bills were introduced without consultation or engagement with unions or employers. Consultation and engagement have always accompanied federal labour law reform in the federal jurisdiction. Careful study, consultation and deliberation have always created stability, predictability and a balance in the federal labour relations regime. Bills C-377 and C-525 threaten to undermine this achievement.
Bill C-377 singled out unions. It tried to tie unions up in red tape. It would have forced unions to provide employers access to key information, giving them the advantage in collective bargaining and organizing drives.
In almost all jurisdictions in Canada, unions are already required by law to report their finances to members. In every jurisdiction, unions already report on a regular basis to their members. Members can ask for an explanation about any aspect of the union's finances, and they frequently do so.
Bill C-377 created a new and very different obligation just for unions. Bill C-377 ordered unions to hand over to employers any and all information that might help them stop workers from coming together to collectively bargain. It also imposed very heavy fines on unions to force them to hand over this information to employers.
Bill C-377 also threatened individuals' privacy rights in the process, which was testified at this committee previously when Bill C-377 was here. It's also unlawfully interfered with the provinces’ responsibility for labour relations across this country.
In short, Bill C-377 was unbalanced, unnecessary, unproductive and unconstitutional legislation.
Bill C-525 was also unbalanced, counterproductive and unsupported by evidence. Like Bill C-377, Bill C-525 was introduced with no consultation or engagement with unions or federal employers. None of the federal stakeholders had indicated any problem with the card-check certification system that existed. Card-check certification is efficient and allows workers to indicate their support for forming a union with less chance of employer interference.
If the Canada Industrial Relations Board needs to confirm that a majority of workers want to form a union, it has the power to order a secret ballot vote. The sponsor of Bill C-525 justified the bill by claiming that the labour relations board was struggling with a "mountain of complaints" involving union intimidation and coercion during certification.
In the decade between 2004 and 2014, the Canada Industrial Relations Board dealt with 23 cases involving allegations of intimidation or coercion during an organizing campaign. The board upheld a total of six of these complaints. Four of them involved intimidation and coercion by an employer.
Honourable senators, the labour relations regime that Bill C-4 will restore has evolved over decades and has generally worked well in the federal jurisdiction. It has led to stability and predictability in federal labour relations. The vast majority of contracts negotiated and re-negotiated in the federal jurisdiction are settled without work stoppages. This is an important value and achievement in the regime that we have built.
Federal labour relations are stable and predictable because employers and unions know that reforms will be balanced, evidence-based and carefully considered, based on consultation with the labour relations partners.
Bill C-4 signals to employers and unions that the government is committed to restoring a stable, balanced and effective labour relations regime in the federal jurisdiction. The CLC supports Bill C-4 enthusiastically and we encourage senators to support this bill.
I want to thank you on behalf of the 3.3 million members of the Canadian Labour Congress.
The Chair: Thank you, sir.
Professor Ryder.
Bruce Ryder, Professor, Osgoode Hall Law School, York University, as an individual: Thank you, senators, for giving me the privilege of speaking to you today about Bill C-4.
I'm a constitutional law expert, not a labour law expert, so I'm going to restrict my comments for a few minutes to the constitutional issues as I see them that are related to Bill C-4, and in particular with respect to the repeal of the provisions that were enacted by Bill C-377 several years ago.
I appeared at the Standing Senate Committee on Banking, Trade and Commerce when it was considering Bill C-377 in May 2013. It was sent back to the house with a number of amendments, I believe, and then the bill seemed to rise from the dead and I appeared before this committee to speak to the constitutional issues raised by Bill C-377 in June 2015. On both occasions I expressed a view that many of my constitutional law colleagues share, which is that Bill C-377 was unconstitutional and there was a very strong likelihood that it would be struck down in the courts.
I am back again and happy this time to say that from a constitutional perspective, I believe Bill C-4 is worthy of your support. I'm here, therefore, to praise it, in essence, for burying the amendments that were enacted by Bill C-377 and to praise it from a constitutional law perspective.
Let me briefly explain why Bill C-377 was so problematic. It, of course, put in place this new and quite extraordinarily detailed set of disclosure obligations and imposed them on all labour organizations through the mechanism of an amendment to the Income Tax Act. In the other provision of the bill, it imposed penalties for non-compliance with these disclosure obligations — a fine of $1,000 a day up to a maximum of $25,000.
Now the problem with this is it applies to all labour organizations. But, of course, Parliament doesn't have jurisdiction over all labour organizations; it has jurisdiction only over a small number of labour organizations — those that fall within the federal public sector or the federally regulated private sector. That is less than 10 per cent of labour organizations across the country. In other words, the regulation of labour organizations, including concerns about accountability and transparency regarding their finances, falls primarily within provincial jurisdiction.
Like many others who are experts in the area, our view is this is a law that in pith and substance, in its dominant characteristics, is in relation to labour organizations, which falls primarily within provincial jurisdiction under section 92.13 and therefore is ultra vires.
The argument made in response was that this is in relation to income tax law; it falls within Parliament's powers within section 91.3 it's about the raising of money through taxation. It's related to the provisions of the Income Tax Act.
I wasn't alone in the view that the Income Tax Act was in essence being used as a Trojan Horse for legislation that was really about labour organizations. When you study the provisions of the Income Tax Act carefully insofar as they treat union dues and grant tax exempt status to unions, and their relationship to the provisions of Bill C-377, there were none. There were none. There were no tax consequences that flowed from violating the new obligations in Bill C-377. In no way were they tied to other provisions of the Income Tax Act.
So my conclusion was, as a result, there's no real strong connection to Parliament's jurisdiction under 91.3. Therefore, Bill C-4 is doing the right thing by repealing what are essentially unconstitutional provisions that could impose great costs on the government and on labour organizations.
I want to say in conclusion that that line of argument doesn't amount to saying, because I was often asked this, "Aren't you favour of greater transparency and accountability for labour organizations?" That's not the argument. I know it's kind of inconvenient that way, to hear from constitutional law professors putting constraints on what Parliament can do, but we do live in a federal state. The federal principle is a foundational element of our nation, and Parliament has to respect the boundaries on its jurisdiction and the jurisdiction of provincial legislatures.
The argument isn't whether or not this is a good thing. It's just that this legislation, Bill C-377, went too far.
The Chair: I will stop you there. You'll have more opportunity, hopefully. We'll move to questions, beginning with Senator Jaffer.
Senator Jaffer: I was very interested in what you were saying, Mr. Ryder, about the bill going too far, but I have a question of Mr. Yussuff.
The Canadian Taxpayers Federation is saying that unions are tax-exempted. Charities have to file detailed statements. Why do you feel that the same kind of standards should not apply to your unions?
Mr. Yussuff: We are a members' organization. If you belong to our movement and our affiliate, they have an obligation to provide you whatever information you're entitled to under their constitution and the majority of members get that information. This bill was never about fixing a problem, which is perverse across the country, that members were not getting information. It was really about trying to restrict the political work we do to try to represent our members in the legislatures across this country. It was all about any amount of money that was spent over $5,000, who was it to and for what purposes. It was going to go up on a public website.
At the provincial level, where the majority of our members are regulated, that legislation currently exists, but also within the federal jurisdiction. If a member should request financial information from their union and their union does not comply, they can ask the CIRB to issue some directive for the union to comply with that responsibility. We support that. For the most part, where complaints have been filed by our members, we have complied.
This legislation was never about transparency. If we're going to have a debate about transparency, I can be here all day and have that debate. It was really about trying to take the financial information the union is providing for those who want to use it to attack the very work we do on behalf of our members.
Senator Jaffer: Mr. Ryder, you were in front of us for Bill C-377, and I remember that very clearly. For those who are not familiar with these bills or conversant as you are, what is the difference now? I get that federal unions are under federal jurisdiction, but what is it that makes you comfortable this is now meeting that test constitutionally?
Mr. Ryder: The only constitutional issue, as far as I'm concerned, is with the provisions of Bill C-377, because it purported to regulate all labour organizations and not just those within federal jurisdictions. I don't think it was valid constitutionally. It was beyond Parliament's powers. That's what I mean when I say it went too far. It purported to apply to all labour organizations.
Bill C-4 is obviously not the only possible response, but it is curing a constitutional defect in the federal statute book. It is important for Parliament to comply with its constitutional obligations when it is enacting law and also to be reviewing existing laws to make sure that they're compliant with the Constitution. I think it's a good thing for this bill to take a proactive approach and not wait or leave it to the courts or litigation to clean up a constitutional problem.
The Chair: Members, I hate to do this. I've been advised that the minister can only stay with us now. There are other votes coming up in the house later on, so this is a bit unprecedented. We ask our current panel to accept our apologies. Hopefully members can retain their questions for you when we call you back.
We'll now hear from the Minister of Employment, Workforce Development and Labour, the Honourable Patricia Hajdu. She is joined at the table by Lori Sterling, Deputy Minister of Labour, Employment and Social Development Canada; and from the Department of Justice Canada, Warren J. Newman, Senior General Counsel, Constitutional and Administrative Law Section.
Minister, the floor is yours.
Hon. Patricia Hajdu, P.C., M.P., Minister of Employment, Workforce Development and Labour: Thank you so much, Mr. Chair, and thank you very much to the previous group for vacating their seats. I know that can be really disruptive during a presentation, and I appreciate that. I do apologize for my lateness, but the whip has ultimate control over our lives as MPs, and so I appreciate your understanding as well.
I'm very honoured to be speaking to you today about Bill C-4. It's my first appearance in front of a Senate committee as a minister. I have to say I staunchly defended the role of the Senate in the last election as a chamber of sober second thought. It is a personal honour to be speaking with you as such a staunch believer in the system we have here in Canada that provides really thoughtful deliberation on legislation.
I'm very much looking forward to speaking to you about Bill C-4 and answering your questions.
[Translation]
I am delighted to speak with you about Bill C-4 and to answer your questions.
[English]
You can see that I'm learning French. I answered my question today in Question Period in French, but it is an ongoing journey.
Let me begin by explaining to you our government's objectives with Bill C-4, and that is to restore fairness and balance in labour relations between unions and federally regulated employers.
Specifically, Bill C-4 seeks to repeal Bill C-377 and Bill C-525, two bills which disrupted that balance. Honourable colleagues, that fairness and that balance matter both in the substance of the bills and in the process through which the legislation was brought forward. Unfortunately, those bills failed in both regards.
In order for workers or employers, society or the economy at large to prosper, our government firmly believes in labour laws that are developed in the spirit of respect for the tripartite relationship between government, employers, and workers. This is of paramount importance.
Colleagues, I know that many of us around this table have different views and different ideologies, but I think we all share one common goal, and that's that each of us wants to see the Canadian economy grow and thrive. In fact, a strong economy protects our democracy and the fabric of our society. We know that healthy labour relationships directly contribute to economic growth.
Independent institutions like the OECD have concluded that weaker unions result in stagnating incomes, particularly in the middle class, and that directly impacts the growth of our economy and the stability of our society. Our government was elected on our commitment to strengthen the middle class and help those who are working hard to join it. Bill C-4 is a critical part of our plan to do that.
Before I take your questions, I'm going to spend a few moments on each of the two bills we are addressing through Bill C-4. I will start with Bill C-377, which amended the Income Tax Act. This bill was truly a solution looking for a problem. It created unnecessary red tape for unions by placing onerous financial reporting obligations on unions.
As senators will know, in the federal jurisdiction, union members already have the right to request financial disclosure from their union, and they also have the right to go to the Canada Industrial Relations Board if a union fails to provide the requested financial disclosure. But, honourable senators, since 1980, in almost 40 years, there have only been 53 complaints made by workers, and of those, only 2 were upheld, 20 were rejected and 31 were withdrawn or settled.
Beyond being unnecessary, constitutional experts, such as the one you have heard, have also found Bill C-377 to be unconstitutional. Our government shares the view that Bill C-377 is unconstitutional because it seeks to regulate the internal affairs of a union, something that is mostly in provincial jurisdiction. In fact, financial disclosure requirements already exist in eight provinces. Furthermore, privacy experts, including Canada's own Privacy Commissioner, believe that it will violate the privacy rights of millions of Canadians.
I'm sure that all members of this committee are interested in knowing what the Canadian Bar Association thinks of Bill C-377. During his testimony before the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, Michael Mazzuca from the CBA spoke about some serious legal issues with Bill C-377. He specifically addressed clauses 12 and 13 of Bill C-4 which repeal the amendments enacted by Bill C-377. He said:
The CBA believes Bill C-377 lacked an appropriate balance between any legitimate public goals and the respect for private interests protected by law.
What will be of interest to this committee is the fact that according to the CBA, "Bill C-377 was fundamentally flawed and it triggered serious concerns from a privacy, constitutional law, and pension law perspective." It is obviously part of this committee's mandate to study constitutional issues, and I hope that honourable senators will consider the Canadian Bar Association's view on this matter.
But the CBA was not the only organization to express concerns about Bill C-377. The provinces of Alberta, Ontario, Quebec, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island have also stated their opposition to Bill C-377 on constitutional grounds. That's 7 out of 10 provinces and represents 80 per cent of the Canadian population.
Finally, I'd like to remind you that if Bill C-4 is passed, labour organizations and trusts in the federal sector will continue to be required to comply with section 110 of the code which, as you know, requires unions to provide financial statements to their members upon request and free of charge.
Now I'm going to switch to Bill C-525. It replaced the previous card-check system used for the certification and decertification of unions with a mandatory vote system. The true effect of this was to make it harder for unions to be certified and easier to be decertified.
Prior to the amendments enacted through Bill C-525, federally regulated unions could use what was called a card-check system for certification. If a union demonstrated that a majority of workers had signed union cards, the union could automatically be certificated as the bargaining agent without having to hold a certification vote. A certification vote was only required if less than a majority signed, but enough to indicate a strong interest: 35 per cent under the Canada Labour Code, for instance.
Bill C-525 changed that to require that unions show at least 40 per cent membership support before holding a secret ballot vote and to require a vote even where more than 50 per cent of workers had signed union membership cards. It also made it easier for unions to be decertified by lowering the threshold to trigger a decertification vote to 40 per cent compared to majority support, which was previously required.
My own department under the previous minister, Minister Leitch, undertook a study while Bill C-525 was being debated in Parliament, and that study concluded that the use of a mandatory vote regime has been an important factor in the decline in union density in the Canadian business sector. That study was not shared with parliamentarians at the time by the previous government.
The evidence shows that employer interference and, more so, employer fear of employer interference is a real phenomenon and is the reason why a mandatory vote system reduces the rate of unionization in this country. While employer campaigns and persuasion tactics against unionization are permitted, unions are not guaranteed access to employees to help them make an informed decision as they exercise their right to vote. In fact, Bill C-525 actually helps companies fight certification campaigns. This is exactly the disruption of fair and balanced labour relations that I spoke of at the beginning of my remarks. It's one of the reasons that I believe Bill C-4 is so important.
Honourable senators, proponents of Bill C-525 initially justified its need based on a mountain of complaints regarding union coercion of workers by union advocates during union certification campaigns. However, in truth, statistics show that from 2004 to 2014 the Canada Industrial Relations Board dealt with only 23 cases in 10 years involving allegations of intimidation or coercion during an organizing campaign, and only 6 of those were upheld — 6 cases in over 10 years.
Colleagues, I'm not here to tell you that the card-check is a perfect system. We do believe that better is always possible, but much like many other democratic institutions, it is imperfect. But it is our government's belief that it's the best system available today to Canadian workers.
Finally, I'd like to reiterate the flawed process under which Bill C-525 was legislated. Again, the crucial tripartite relationship between government, employers and workers that preserves healthy labour relations in our country was all but ignored by Bill C-525. The Federally Regulated Employers - Transportation and Communications group, FETCO, was very clear in its condemnation of the process that led to the passage of Bill C-525, and the organization raised that point in its December 10, 2014, brief to this committee. It said:
Notwithstanding FETCO's support of Bill C-525, we want to express serious concerns that FETCO has regarding the process of using private members bills to amend the Canada Labour Code.
For many years, employers, unions and the Federal government have engaged in effective tri-partite, pre-legislative consultation processes when contemplating changes to the Canada Labour Code and regulations. These processes ensure that fact-based and informed decisions are taken with respect to federal labour law and regulations. FETCO believes that this consultation model has permitted federally regulated employers, unions and the Federal Government to successfully advance the interests of their respective constituents and has contributed the stability of labour-management relations in the Federal jurisdiction and the economic well-being of the Canadian economy.
This critical tripartite pre-legislative consultation process is by-passed where changes to the Canada Labour Code are proposed through the mechanism of "one-off" private member’s bills.
Before concluding, honourable colleagues, I would like to reiterate the fundamental reason why I hope you will support Bill C-4, and that is, simply, the economic growth of our country. Fair and balanced labour relations lead to a strong economy where workers and their families thrive and, in fact, the fabric of our Canadian society that we all hold so dear remains strong.
Once again, I'd like to thank you for the honour to join you today, and I'm very happy to take your questions.
The Chair: Thank you, minister. I understand you have a little over half an hour with us remaining, so I would encourage members to craft concise questions and similar responses. That will let us get through the list.
Senator Jaffer: Thank you, minister, for being here. I also want to thank you for the work you did previously; we miss you in Status of Women.
Minister, when I was listening to you, around this table we have spent countless hours studying Bill C-377 and Bill C-525, including times when we should have been on holidays. We invested a lot in this. There's something I'd really like to hear from you. One the arguments for Bill C-377 is transparency and accountability. Are you satisfied that this bill covers the issues of transparency and accountability that were stated in Bill C-377?
Ms. Hajdu: Thank you, senator, for the question. It's a good question, and I am satisfied. I am satisfied because this is a process that has worked well for so many years. Employees have the right to request financial information from the union, and the union has a responsibility to provide that to the employer. This is a system that works well. As you can see from the numbers I've presented, we have had very few cases where employees have had to fight for this information with their unions. Again, to constitutionality, we do believe this approach is unconstitutional, that it creates a burden for unions, extra red tape and in fact defeats many of our shared goals in terms of effective relationships between employers and employees.
[Translation]
Senator Dagenais: Minister, you are no doubt aware that I sponsored Bill C-377. You mentioned the Constitution, but I would rather discuss workers and their rights. Going forward, unionized workers will have the right to know what union leaders are doing with the union dues they pay.
Minister, you said that unions disclose financial information to their members through shop stewards. Bill C-377 obviously creates an obligation requiring unions to file their returns and simply provide an additional copy of their financial statements to the government.
We have seen two cases of fraud involving large unions and the misuse of union dues. Bill C-377 is designed to protect union members and the dues they pay. I would point out that Quebec’s Charbonneau commission discovered fraudulent activity involving QFL Construction, whose president at the time, Jocelyn Dupuis, was found guilty on fraud charges. Not to mention, members of Quebec’s provincial police association, the Association des policières et policiers provinciaux du Québec, committed fraud, including its president, vice-president and a lawyer.
As I see it, Bill C-377 seeks above all to protect the union dues paid by workers. You talked about the middle class and provincial jurisdiction. Union dues are clearly tax-deductible at the federal and provincial levels. Given that union dues are federally tax-deductible, do you not think that Canadians are entitled to know what unions are doing with their money? Bill C-377 placed a lot more emphasis on transparency than Bill C-4 does.
[English]
Ms. Hajdu: I do hope to be able to answer your question in French one day.
I do think that we had transparency under the current system and Bill C-4 restores the fair and balanced approach we're talking about.
In fact, any union employee can request information about their union's financials and the union is obligated to provide that information to the employer. In fact, most times they do. If there is an issue, there is an appeal process whereby an employee can take the complaint further and compel that union to release that information should the union not release that information.
From my perspective, the constitutionality piece is important because we live in a country that believes in federalism. We live in a country that supports the rights of provinces to administer their own laws and their own jurisdiction. So it is a constitutional issue.
In terms of transparency, this bill specifically had an element that was meant to undermine unions. This was really about exposing not just the financial information to taxpayers, if you will, but using that financial information to get a leg up on negotiations. It is an approach that can weaken the unions, and we believe that strong unions protect our economy.
I have to tell you that in my previous role I was the executive director of an organization that was a unionized environment. I had never been in a union and I had never led an organization that had a union.
At the beginning, it was a difficult process. I can tell you that as an employer, there were many times that I thought working with the union was difficult. But what I came to understand was that strong unions and strong employers understand that a union relationship benefits both the employers and the organization.
After my first year, the relationship with the union that I worked with was much stronger and it's because we had a shared goal.
The Chair: Minister, we're going to have to leave it there and move on to Senator Bellemare.
[Translation]
Senator Bellemare: Thank you, Minister, for agreeing to take part in our study. I am going to ask my question in French. It is mainly about Bill C-525.
As you know, these are private members’ bills, which were strongly supported by organizations that lobbied at significant cost in favour of the bills. I am referring to InfoTravail and Merit Canada. If you, as minister, had received a bill with that type of support, do you think it would have been passed? Bill C-525, for instance, was passed even though it contained two errors, one that I identified and one that Senator Cowan identified. As a result of the two errors, powers were taken away from the chairperson of the Public Service Labour Relations Board. The Senate passed the bill with full knowledge of the errors. The bill should have been corrected, but that never happened.
How do we make sure such errors aren’t repeated? In other words, when changes are being made to labour market institutions — these are two private members’ bills supported by two anti-union organizations — how can we be assured that they are technically sound? Minister, what role does the Department of Justice play in that regard?
[English]
Ms. Hajdu: That's an excellent question. One of the benefits of a tripartite approach, first of all, is that government is involved. When government is involved in presenting a bill on something as critical as these two bills, they are reviewed by the Minister of Justice and her team to ensure constitutionality, to make sure that any mistakes such as the ones you've identified are not present, and to ensure there are no unintended consequences.
One of the things that we have a responsibility to think about as legislators, at every level, are the unintended consequences of the legislation that we put forward. If we don't think of the unintended consequences, really bad things can happen. We've seen examples of that recently in other countries.
It's very important that we are thoughtful and have the bills that we're putting forward, which are so substantial to millions of people, reviewed by Justice.
I'd actually like to turn it over to Mr. Newman, who is a constitutional lawyer with the Department of Justice, to speak a little bit about that.
Warren J. Newman, Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: When government proposes policy, there's a whole internal process leading to cabinet consideration and then recommendations on the part of cabinet members, the cabinet as a whole, instructing the Minister of Justice and the Department of Justice to draft legislation in accordance with the policy put forward.
When private members' bills come forward, they don't evidently go through the same process. Sometimes provisions that are presented in private members' bills, which superficially might seem to integrate with the overall legislative scheme, in reality can cause these inconvenient by-products of rules that are not necessarily thought through in terms of the overall scheme. That is a difficulty we run into when legislation is proposed in this way.
That's not to say there aren't good measures that come forth through private members' bills. Many have been enacted and are an integral part of our statute law, but it is a different process.
Senator Omidvar: I have a number of questions, but in the interest of time I will put one forward, and it's triggered from your comment that every bill has unintended consequences. We appreciate that because we see them impact the lives of people.
In your estimation, what are the unintended consequences of Bill C-4?
Ms. Hajdu: That's an interesting question. I think Bill C-4 rights the wrongs of the unintended consequences of the previous bills. The intended consequence is to strengthen our economy, to ensure that we continue to have a strong relationship between employers and unions and that our labour movement is strong in Canada. This is something that we know contributes to not just a growing economy but a lessening of that income inequality we have seen many reports about, especially recently, and how dangerous that can be to society and to democracy.
I will again ask Mr. Newman if he has thought about any unintended consequences, but from my perspective as a minister, I think we've been very thoughtful in this approach. We think that this is a fair and balanced approach that ensures employers and employees have rights and responsibilities.
Do have anything to add?
Mr. Newman: I will leave it at that.
Senator Tannas: Thank you for being here, minister. Two things before I ask my question: Number one, I was the sponsor of Bill C-525 when it came to the Senate; and, two, I'm the son of two life-long union members.
On secret ballot for certification, in the provinces of British Columbia, Alberta, Saskatchewan, Ontario and Nova Scotia, 70 per cent of the population is there. That is what is required for certification.
We heard testimony from an independent research firm that 80 per cent of workers support secret ballot for certification. We understand the card-check system and people arriving at your door at home on the weekend saying, "We're here from the office. We're getting up a union. We'd like you to sign here." That's not intimidation, but it is.
You talked about a not-perfect system. I venture to say that "card check" is not perfect when it comes to intimidation. I'm certain that nobody runs off to the labour board to complain that they were intimidated into signing a union card by virtue of somebody visiting them in their off hours.
In light of all of the evidence of the provinces and the survey that we received, I'm at a complete loss as to why this issue is so vital for federally regulated institutions, given what the majority of Canadians are already operating under. Do you have any comment on why this is such an important issue?
Ms. Hajdu: This is an important issue for a number of reasons, the primary reason being that the previous system worked and there were no problems with the previous system. Even more than that, I think the proposed system will make it harder for unions to certify and easier for unions to decertify.
The secret ballot is still triggered if there aren't more than 50-plus-1 cards received. In fact, unions and stakeholders — all parties — have expressed concern that employers might use the process of a secret ballot to place undue pressure on employees to not join the union. More than that, there's the fear of employees that their job will be at risk if they join a union.
I had an interesting experience in public health. I was a planner, and planners were not unionized. Nurses were unionized and administrative staff were unionized, but planners were not. So a group of people were trying to unionize in the office, and it was the card system being used. The employer knew there was a union effort going on. The employer came to us and said, "This will not be a good thing for you." They made allegations that, "You'll have to pay these union dues, for a whole bunch of reasons, blah blah," and all of that kind of stuff. Some of my colleagues felt quite intimidated.
The nurses were well known to have protections of the union. In fact, there was sometimes grumbling by the non-union staff about the protections the union offered nurses. But what was interesting was that the group I was involved with — the planners and the non-unionized staff — some people felt very threatened. They felt threatened.
That's the fear we have with this process: It makes it easier for unions to be decertified and it makes it harder for unions to certify. In this country, we know that unions are the backbone of a strong economy; a healthy, vibrate labour force; good, decent, fair work; and it's a fair and balanced approach.
The Chair: We're going to have to move on.
Senator Baker: I'm glad to hear that you don't have any intended/unintended consequences.
Ms. Hajdu: Thank you.
Senator Baker: We heard from the great President of the Canadian Labour Congress prior to your submission. He said that he and the unions were not consulted with the previous legislation — the two pieces of legislation you referenced.
You mentioned that 7 of the 10 provinces were opposed to the previous legislation. Can you assure us that you have consulted with the unions, that you have the total support of the Canadian Labour Congress and that we don't have provinces who are objecting to it? Can you assure us, as Mr. Newman said, that the procedure for consultation with the provinces was taking place in this particular instance, and the provinces knew what was in your legislation and did not object — at least 7 out of 10?
Ms. Hajdu: During the last election, our government made the commitment to repeal this legislation should we form government — these bills — because they weren't fair in substance or in the process through which they've been created. We're acting on that promise to Canadians to restore fair and balanced labour laws in this country that respect the role of labour and the role of the tripartite process that's so important to ensuring stable and strong labour relations in this country.
I might add that should either party come to us and say, "The laws need to be changed because in fact they’re not working," that would trigger a tripartite conversation. We would be committed to working with our partners and making sure that the approach remains fair and balanced.
Senator Baker: Did you actually answer my question?
Ms. Hajdu: I did.
Senator Baker: So you don't have provinces that are objecting to this legislation, and you can assure us that you have the support of the Canadian Labour Congress? By the way, you're doing an excellent job in your position.
Ms. Hajdu: Thank you.
I'm checking with my deputy because I think this is week three and a half. No, we have had no objections from provinces and we have the support, yes.
Senator Batters: Thank you, minister. I find the answer to your last question interesting given that it's today that your particular government broke a pretty major promise that it made during the last campaign, but that's just a little comment.
It was this particular committee that dealt with Bill C-525 during the last session of Parliament. During the study of that bill we heard testimony from Robyn Benson of PSAC who told us:
Contrary to what you may have heard, PSAC has no issue with voting by secret ballot.
In referring to a secret ballot, FETCO said:
We believe that this is the most appropriate democratic process. . . . This is the fairest process that permits all employees to express their true wishes.
For his part, Mr. Yussuff from the Canadian Labour Congress did not discuss the secret ballot process in his committee appearance.
Minister, no problem has been publicly expressed at our committee studying that bill with these union leaders. Yet, right after the October 2015 election, Prime Minister Trudeau held a closed-door meeting with the Canadian Labour Congress. The Globe and Mail reported about it and stated that this meeting was held in private at the Liberal government's request. The article also stated that the leaders of all major unions affiliated with the CLC were present at the event. Then the PMO told the Globe that this meeting was conducted behind closed doors to permit a full and frank discussion.
Minister, was it pressure during this private meeting from union leaders that convinced the Trudeau PMO to introduce Bill C-4, taking away a mandatory secret ballot from workers as one of its very first bills? And there have not been many.
Ms. Hajdu: Thank you very much for the question, senator.
No, I don't believe it was pressure. It was a commitment to a fair and balanced approach that protects the labour movement in Canada, because we know that in order to growth middle class and to make sure that we have income equality in this country, we need a strong labour movement. We need fair and decent work in this country. We need people to wake up with hope in the morning that they're not in a precarious work position. We've heard a lot about the risk of precarious employment.
This was a commitment to Canadians that in fact we would keep the strength of the labour movement strong and that we would work with employers to make sure they had profitable thriving companies. I can tell you as an employer with a union, our productivity went up once we were working collaboratively with the union. We had shared goals of employee safety and shared goals of fair compensation.
That is exactly why the Prime Minister made that commitment. I understand my deputy was in the room during that meeting and is happy to share a bit more.
Senator Batters: Was a mandatory secret ballot one of the demands that union leadership made to repeal that portion?
Ms. Sterling: So we also have Hassan here —
Senator Batters: He will be testifying next, but from you — you apparently were there.
Ms. Sterling: He can speak to his own intentions. I was at the meeting. I think it was an annual general meeting.
Senator Batters: This was a private meeting with the Prime Minister. If you can just recall from your own —
Ms. Sterling: If there was another meeting that was private with the Prime Minister, I wasn't in attendance. What I can tell you is that shortly after the election, the Prime Minister did appear at the general meeting. As Minister Hajdu has said, it was a campaign commitment and he reiterated it at that meeting.
[Translation]
Senator Boisvenu: I am going to ask the same question as Senator Dagenais, but with a bit more focus, if you will. I don’t think you answered his question.
Being able to deduct union dues is a privilege in Canada; most workers are not unionized and are paying for a privilege afforded to unionized workers. I have worked with volunteer organizations that receive public donations, which are deductible. I was under an obligation to publicly disclose my financial statements — not just to the members of my association, but indeed to everyone. Why should non-unionized workers, who pay for the privilege of tax-deductible union dues afforded to unionized workers, be denied access to unions’ financial information?
[English]
Ms. Hajdu: I'll let my deputy answer that question.
Ms. Sterling: Thank you for the question.
The nature of the disclosure in this particular case went beyond the disclosure that's required of charities to quite a degree, and then I guess it's open for debate.
[Translation]
Senator Boisvenu: My question has to do with the fact that, through their taxes, non-unionized workers in Canada pay for a privilege available only to unionized workers. Why should I, as a non-unionized worker, not have access to information in relation to which I am partly paying the union dues? Why am I being prevented from seeing that information?
[English]
Ms. Hajdu: Thank you for the question, senator.
The perspective of this government is first that Bill C-377 is unconstitutional, that it was not a fair and balanced approach, and that it in fact undermined the integrity of the unions and put them at a disadvantage that could weaken the labour movement in Canada.
This was a bill intended to weaken the labour movement in Canada and provide employers, for example, an advantage in deciding whether or not a union had enough money to go on a strike. Could they in fact then exert more pressure to negotiate in a favourable way?
This was something that was designed to actually diminish the strength of unions. We believe that a strong union movement in Canada is essential to maintaining the middle class that we have, growing it to include others, and reducing income inequality in Canada.
The Chair: We have a few minutes left. Does anyone want to ask another question of the minister prior to her departure?
Thank you, minister. I appreciate your attendance along with your officials.
Ms. Hajdu: Thank you very much for the time.
The Chair: Thank you again, witnesses, for assisting the committee today. We'll go back to the original question list. We will begin with Senator Boisvenu.
[Translation]
Senator Boisvenu: I am going to ask a very broad question while trying to be as specific as possible.
Most countries that recognize the right of workers to unionize also recognize a basic democratic principle, respect for the confidentiality of workers’ choices. In most industrialized countries, union votes are confidential, meaning they are secret. I am trying to wrap my head around the principle whereby unions, particularly in Canada, are fighting to keep respect for workers’ votes out of their practices and values. As things stand, under the membership card system, it is possible, more or less, to know who supports a measure and who opposes it.
You are union leaders. I am trying to understand why union culture does not embrace the principle of secret ballot voting.
[English]
Mr. Yussuff: I'm fine to deal with this. We had a system that worked in the federal jurisdiction for years. The Canada Labour Code was reformed a little bit over a decade and a half ago, and in that process there was broad consultation about how we can reform the code to advance it in modern times. In that process, of course, card certification was there.
In many cases a worker does not have to sign a union card to join a union. If they choose not to do so, the union will not be certified. If there's a majority of workers who express that desire, so be it. There are places where we do not have enough cards signed and workers should go through it, but it's the fairest system.
Let's understand the important dynamics of a workplace. A worker is working in an employer's establishment, and almost every occasion — I can go through the list — the employer would prefer if the worker did not join a union. They do interfere in the business of a worker making that democratic decision. Even when the vote is held in the workplace, it's on the employer's premises.
The list goes on and on in regard to intimidation. It impinges on the workers’ ability to simply exercise their democratic right on whether they want to join a union. A worker is fully aware when they sign a union card that they are signing a card because they want to become a member of the union. I don't see what the problem is.
Yes, we have many different places. In every province where we have had union certification by card, there have been changes due to ideology and not because the system is better or works in favour of a worker. A government comes in and says, "We know how to restrict the growth of a union. We're going to get rid of the card certification and put a different process in place."
The province you come from, the province of Quebec, has had the longest run of card certification, and it's still there, despite the many governments that have governed that province, because it works. It's a fair system. If you don't want to join a union, don't sign a union card.
[Translation]
Senator Boisvenu: I appreciate that you are standing up for the status quo. Indeed, if I were unionized, I would do the same thing. That isn’t the issue, however.
Why not take a step towards greater democracy, as far as respecting confidentiality is concerned, by introducing secret ballot voting to all union decision-making?
My question is straightforward. I understand that you want things to stay frozen in time, so to speak; that is your position. Why not, however, take a step towards a more democratic union movement in Canada? We are one of the only countries where the system works this way. Why not embrace the value of secret ballot voting in all the decisions workers are called upon to make in your unions?
[English]
Mr. Yussuff: When we can stop employers from using their power to intimidate workers in the economic relationship they have, then of course we may concede to a different system, but so long as they have that power to intimidate members and threaten their lives and their economic security, card certification works to protect workers from that intimidation.
[Translation]
Senator Pratte: My question is for Ms. Brazeau. The picture painted by opponents of Bill C-4, who supported the previous bills, is one of workers who complain of bullying and unfair practices by unions. The picture they paint is actually twofold. On the one hand, you have the employer whose hands are tied in the face of its employees being subject to unfair labour practices by unions. Opponents of Bill C-4 argue that the Industrial Relations Board has cut employers out of the process on the grounds that they have no say and that the problem must be resolved by the employee and the union. On the other hand, you have the poor employee, who is powerless given how difficult it is to file a complaint with the Industrial Relations Board. I would like you to comment on both parts of that picture.
Ms. Brazeau: First, with regard to complaints against unions, in other words, complaints of coercion by unions, I want to point out something the minister mentioned. Over a period of 10 years, only six of the cases dealt with by the board involving such allegations were upheld.
We deal with these complaints quickly in situations involving applications for certification. Normally, in the context of an organizing campaign, the union will file such a complaint on behalf of the employee, when it is against the employer. Resources are usually available to help employees with complaints of this nature. We endeavour to take a flexible approach in dealing with cases involving unrepresented employees. The figures show that the problem isn’t so extensive that it cannot be fixed and that it has a serious impact only as it relates to organizing drives.
Second, with respect to the verification of membership cards, that is the kind of thing we check during the investigation. Our labour relations officers conduct checks of individuals who signed cards to verify whether the employee really wished to sign the card and actually paid the five dollars. That information is provided to the board in a confidential report in order to protect employee confidentiality. The report is submitted to the board, which reviews all of the information before deciding whether to grant certification on the basis of the membership cards provided with the application or whether to order a vote to ascertain employees’ wishes.
It is therefore up to the board to make the decision in light of all the facts provided in the case. That addresses the first part of your question.
The second part of your question, I believe, pertains to complaints against the employer.
Senator Pratte: I was wondering about situations where the employer witnesses a union utilizing unfair practices during a certification drive. In such a case, can the employer file a complaint regarding the union’s conduct?
Ms. Brazeau: Yes, absolutely. Under section 96 of the Canada Labour Code, an employer can submit a complaint about actions taken. For example, solicitation is not allowed during hours of work or in the workplace. Practices that are offensive or prohibited, under the code, can also be brought to the board’s attention. That is the kind of information our officers will examine and report to the board.
However, as I said, complaints of this nature did not account for a significant share of the board’s workload during the period under review.
Senator Dagenais: Thank you to our witnesses. I’d like to share a brief anecdote that will no doubt make you smile. The Senate welcomed new independent senators, and they had to choose the committees they wanted to sit on; they cast their choices by secret ballot voting. Therefore, I cannot see how those same senators can be opposed to secret ballot voting in our study today. That was simply an aside.
Some honourable senators: No!
Senator Dagenais: I should have said, "Correct me if I'm wrong," since I was corrected.
That said, having spent more than 39 years in a union, I can tell you that, without secret ballot voting, people would have been subject to considerable bullying on many occasions. Such situations are less common in a policing environment, but take, for example, construction sites on the North Shore, where certain large unions engaged in raiding to recruit members. It was done through cards. No one can tell me there was no bullying. I won’t name names for fear of being sued, but you know full well what happened on the North Shore, in Quebec. The big unions engaged in raiding. Bullying was rampant. In the more remote regions, where everyone knows each other, people were extremely bullied, and there’s no denying it. It was all done through the sale of membership cards.
That should help you understand why I believe secret ballot voting must be upheld: it serves to protect workers. It is well and good to talk about rights and the Constitution, but it is also important to talk about the workers, and secret ballot voting protects them. What is your take on that?
Ms. Brazeau: Are you asking me or the union representatives?
Senator Dagenais: I am asking you, but if the union representatives wish to answer, they should feel free to do so.
[English]
Mr. Yussuff: Bill C-525 was presented as a "mountain of complaints" involving union intimidation and coercion during certification. During the process of that piece of legislation becoming law, the evidence that was put before this committee and the house proved that it was completely false, but the bill was made into law despite the evidence put before this committee.
So if this committee's role is for sober second thought, I would like you to simply go back to the evidence that was put forth on why Bill C-525 was put forward.
I don't work for the board. The board has its own process of collecting data and providing it in a fair manner to this committee. When the board presented again, there was never any evidence on the basis in which this bill was brought forth and then passed into law. I think the Senate has a duty and responsibility to do the right thing.
The Chair: Mr. Roberts, do you have a response?
Chris Roberts, Director, Social and Economic Policy Department, Canadian Labour Congress: I very quickly want to draw senators' attention to a portion of the testimony from Ms. Brazeau regarding the experience under Bill C-525 and the fact that votes were required in all instances during the 18-month period in which Bill C-525 has been in effect, which have confirmed, vindicated the level of support indicated by cards.
The inference that somehow intimidation would otherwise be revealed in the event of a mandatory secret ballot election is simply unsubstantiated on the evidence.
Ms. Brazeau: To correct that, I didn't say "all"; I said "majority of."
Mr. Roberts: The majority.
[Translation]
Senator Bellemare: I am going to ask my question in French, but feel free to answer in the language of your choice. Like my friend, Senator Dagenais, I, too, want to share a brief anecdote.
I am old enough to recall what my grandfather said to me when there was talk of an election in Quebec, in the 1950s. He said to me, "You will see, Duplessis will get in again." So I asked him why he said that. He answered, "Diane, Duplessis has posted a man next to the door where people will go to cast their vote. So, obviously, they will vote for the right party." That’s my little anecdote, and there you have my thoughts on secret ballot voting in companies, because most secret ballot voting happens in companies.
My next question concerns the indirect consequences of the secret vote. When we look at everything written in the United States when the voting system changed — and in the provinces, the study mentioned by the minister — the studies show that, when a secret voting system is adopted, the rate of unionization decreases in relation to the rate obtained as a result of the card system. When we look at the data in your annual report, we see that, for the four years from 2011 to 2015, a certification application had a 71.25 per cent probability of being accepted on average. In other words, for the period in which the figures were provided and the card system was used, a union had a 71.25 per cent probability of being successfully certified.
In the annual report data, we see that there are two columns for 2015-16. There are the figures for 2015-16 before the change, with the card system, and the figures for 2015-16 after the change. However, according to your report, the application had a 69 per cent probability of being accepted with the card system, and a 54 per cent probability of being accepted with the mandatory vote system. This confirms that the adoption of the mandatory vote reduces unionization. In the tables that you submitted, you didn’t make the distinction between before and after. I was wondering whether it could still be determined that unionization was higher before than after.
Ms. Brazeau: It’s the table on page 9 of the document provided today. We didn’t separate the data from 2015-16. Bill C-525 came into force in June 2015.
[English]
That is page 9 in the report. In our annual report, we split that year in two because we had three months in the previous system and nine months under Bill C-525. For the purpose of this report, I decided to show a year-after-year comparison, and we have the data up to December 31, 2016.
You can see here, on the last line, it did go down. The probability of granting the certification has gone down last year and again this year compared to the previous year. But if you look at 2013-14, there was a low granting of certifications that year.
In my view, it is a bit early to establish the trend, but it does show over a year's period that it did go down. I wonder what caused that under Bill C-525 and whether it is, in fact, the mandatory vote.
You'll see the second line shows a number of withdrawals, and that usually occurs when they come in with an application. There are discussions between the parties; there is another union involved; or they realize the unit is larger than what they had applied for and then there's a decision to withdraw the application.
There seems to have been a high level of withdrawals since the coming into force of Bill C-525. I can't explain exactly why that happened, but I would caution about the trend that is appearing in this chart. But it does, in fact, show that it did go down under Bill C-525.
Senator Tannas: Thank you for that explanation, which I think raises more questions for me.
I'd like to ask a question of Mr. Yussuff from the CLC. As senators, we got well over 2,000 emails on this, at least in my office, from union workers who said, "Please support Bill C-4." To be fair, a lot of them were form emails that somebody had written for them and they forwarded them, or however the process works. Many of them, though, actually went to the trouble of freestyling a little and putting their own comments in. Not a single one mentioned secret ballot as an issue; not one.
Together with the independent survey that we heard about last time that said that 80 per cent of workers across the country support secret ballot and think it makes sense is the fact that everybody in this building and the House of Commons understand secret ballots, how they got their job. We use it all over the place.
I understand that the current system of "card check" works, and I'm certain that the Castro regime and communist China said that their voting system, which always provided a result, worked perfectly.
I'm having a lot of trouble swallowing this. I also get that it results in fewer successful union certifications. That's because every single worker has the power in their hand to make their own decision, and I don't understand what's wrong with that.
Do you have any comments on the fact that we did not hear one single exhortation from a worker about secret ballot?
Mr. Yussuff: If our members were writing to all senators urging them to pass Bill C-4, they are fully aware that Bill C-4 includes two pieces of legislation.
Senator Tannas: I should clarify. Every one of them ranted about Bill C-377. There are many of us in the room who have one feeling about Bill C-377 and one feeling about secret ballot. In fact, the Senate recently amended the RCMP bill to put secret ballot in.
Again, with Bill C-377, everybody is against. What about this?
Mr. Yussuff: Senators, we have 3.3 million members. If you want me to encourage them to write you letters regarding Bill C-525, I will gladly get you as many emails that will satisfy your curiosity. That's not a problem.
With regard to secret ballots, the one fundamental aspect you keep forgetting in this equation is the power of the employer and the influence they have with members in the workplace. I have never met a single employer, when unions are trying to get certified, that embraced the fact their workers are going to join a union.
Workers change their minds, just like citizens do, but in the context of when your job is at stake, under the threat of an employer saying, "We're going to shut the workplace down," or "We're going to change the economic situation with you," people do make alternative decisions.
There are many workers who join unions. I used to be an organizer for my union in my younger days, and I used to conduct organizing drives. In many cases, even though there were a thousand workers in the workplace, not every single one of them signed a union card. Many could have refused to sign a union card, and that's their right. But the ones who chose to do so, and if a majority of them chose to do so, are they not entitled for the unit to be certified?
I think you have to put in context the power and the dynamic of the relationship within the workplace. It is the employer's workplace and there are supervisors. I'm not saying every employer intimidates workers, but there is not a single location in my lifetime in which I have seen an employer embrace the union organizing drive. "What can I do to help you to make this successful?" Never.
I understand that; I get it. We add an element in the workplace that will change the relationship. Workers will have a voice and they will, of course, be bargaining their economic conditions with their employer.
I think you need to put that in this reality. In every place across this country, in provinces that have had card certification, the only time it has changed is because of ideology. The government that got elected basically says, "We're going to change the system."
In Quebec, by the way, for the longest period in the history of this country, card certification existed despite the regime. They say it is a stable system to allow workers to make a choice to join a union.
Senator Omidvar: My question is for Professor Ryder.
I want to thank you for making your presentation in non-legal language; even I understood it.
You believe that Bill C-377 was unconstitutional. The law has been on the books now for roughly 18 months. Has a challenge been launched, and, if so, what is the status of the outcome?
Mr. Ryder: I'm afraid I don't know the answer to that, Senator Omidvar. I've seen in the previous testimony that it's been presented. I can't remember if it was in the house committee or here that there was some mention of a challenge that had been initiated by the Alberta Union of Public Employees in the Alberta Court of Queen's Bench, but there has not been a ruling yet. I don't know if it's gone to trial or not.
An Hon. Senator: It's in abeyance.
Mr. Ryder: It has been put in abeyance.
Senator Lankin: Let me declare for transparency purposes that in my professional life I've been a union organizer, a union negotiator and an economic researcher. I have many anecdotes of situations in organizing where there was employer intimidation and I'm sure there are an equal number that could be found of where there was union intimidation. I think there's an ideological divide on this issue that sometimes overshadows an evidence base on either side of these arguments, so I just want to be transparent about that.
I'm not going to speak about Bill C-377. I think most people in the Senate will find that a mistake was made. It's unconstitutional, and our job — in fact the very first job of the Senate around constitutional compliance — is around the federal and provincial division of powers, and I think people will feel that.
But on Bill C-525, I'd like to ask this question of the board. The evidence that people are bringing forward is after the fact, about its diminishing unionization certification, and that could be because there were too many cards because of union intimidation and when they get to you their secret ballot they vote differently. Or it could be because of the vote, the employer workplace and the kind of intimidation.
I don't think we have an evidence base here. I also think it's an ideological vote and that's not our purpose. The government is living up to a commitment they made in a campaign. Unless we have regional, constitutional or whatever grounds, I don't know why we're weighing in in this way.
I would like you to share with us whatever you can about evidence of either employer or union intimidation, unfair practices that have been brought to light through those complaints, understanding that many people in either situation who have experienced intimidation may not complain. But there must be some evidence that's come forward. What do you know about it, and how does that inform the position that you've taken in favour of the repeal of Bill C-525?
Ms. Brazeau: Thank you, senator, for your question.
I've asked for a review of the complaints of unfair labour practices that have been filed since the coming into force of Bill C-525 that are directly linked to a certification application. We've concluded that there has been an increase in the number of complaints filed since the coming into force of mandatory votes related to employer conduct during the organizing campaign and the conduct of the vote.
We've received 26 ULP — unfair labour practices — complaints since the coming into force. Now, we haven't been able to deal with all of them because some of them are still ongoing, but 11 have been resolved because we did hold the vote and at the end of the day the complaints were resolved through mediation. But we still have 11 of those complaints pending before the board, so the outcome is still unclear as to the conduct or the conclusion of those complaints.
Senator Lankin: Thank you.
[Translation]
Senator Boisvenu: I have a question concerning morality. Unions benefit from two major privileges in Canada. Even though 55 per cent of workers sign their union membership card, 100 per cent of union members pay dues in keeping with the Rand formula. As a worker, I can’t opt out of this formula. I’m required to be unionized. The other privilege you know is that the dues you collect from unions are paid by all Canadian workers, for unions. If I contribute $1,000 a year, I will receive about $400 or $500 depending on my tax rate. Non-unionized workers also pay for this privilege.
During the red square crisis, unions, including the Confédération des syndicats nationaux, paid students to participate in demonstrations. Many Quebecers were against this principle.
If I pay dues to benefit from these privileges, why don’t I have access to the unions’ financial record?
Ms. Brazeau: I’ll turn the floor over to the representative of the unions. I monitor compliance with the legislation on behalf of the board. Therefore, I won’t take a position on this issue.
[English]
Mr. Yussuff: In the province of Quebec, where union members pay union dues, they have the right to financial information of the union. That is a fact.
[Translation]
Senator Boisvenu: What I’m saying is that I’m not unionized. My taxes help pay for this privilege, which is that union members can benefit from a tax deduction. My money pays for this. The union indirectly deducts from my pay an amount used to organize public demonstrations that I oppose. Why don’t I have the right to access the union information on the funding for these demonstrations? My money was used to fund these demonstrations.
[English]
Mr. Yussuff: If we want to have a debate about all the different tax holidays that are in the tax code in this country and who is privileged and who isn’t, that's a good debate. But the reality is that it is a legal right for union members to deduct their union dues from their income tax.
Senator Boisvenu: It's a privilege.
Mr. Yussuff: No, it's a legal right given by the Government of Canada.
Senator Boisvenu: And what about transparency?
Mr. Yussuff: If the Government of Canada should choose take it away, that's a debate we will have in our democracy. That's a right, not a privilege. It's a right.
The Chair: We're going to wrap it up at that. I want to thank the witnesses for their patience and their consideration and, of course, for their testimony. It is much appreciated by all of us.
Members, before you leave your seats, we have a couple of business matters we have to deal with — two motions. I'm going to read them and look for a mover. I think you all have them in front of you.
I move that notwithstanding the motion adopted on November 24, 2016, the members of the steering committee be provided with a copy of the in camera transcripts from that meeting to aid them in guiding the analysts in the drafting the final report; and that all copies of the transcripts be destroyed no later than the date of the tabling of the final report in the Senate.
This doesn't make it clear for new members. This is dealing with the study on court delays, which the committee dealt with over the course of last year. We went in camera in November, our final meeting on it. The committee made its recommendations to our analysts who were trying to pull all of this report together. So what we're now looking for, there was a standard in camera motion that dealt with keeping the transcripts locked up, if you will. This motion will allow release of the transcripts of that meeting for the steering committee when they're dealing with the analysts with respect to preparing the draft report before bringing it before the full committee.
Can I have a mover for that motion?
Senator Boisvenu moves that.
Any questions surrounding this? Seeing none, all in favour?
Hon. Senators: Agreed.
The Chair: Motion agreed to.
I will read the second motion into the record.
That, pursuant to the order adopted by the Senate on December 7, 2016, the membership of the Subcommittee on Agenda and Procedure be increased by one non-voting member chosen from the senators who are not members of a recognized party, to be designated after the usual consultations.
Can I have a mover for that motion and then we can have some discussion?
Moved by Senator Boniface.
Are we all familiar with this? No questions or concerns? All in favour?
Hon. Senators: Agreed.
The Chair: Motion carried.
(The committee adjourned.)