THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Tuesday, June 11, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 9 a.m. [ET] to consider Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012.
Senator Ratna Omidvar (Chair) in the chair.
[English]
The Chair: Good morning, senators.
[Translation]
My name is Ratna Omidvar and I’m a senator from Ontario.
[English]
I’m the chair of the Standing Senate Committee on Social Affairs, Science and Technology.
Before we begin, I would like to ask all senators and other in‑person participants to consult the cards on the table for guidelines to prevent audio feedback incidents. Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters. If possible, ensure that you are seated in a manner that increases the distance between microphones. Only use a black approved earpiece. The former grey earpieces may no longer be used. Keep your earpiece away from all microphones at all times. When you are not using your earpiece, please place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
Today we begin our study of Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012.
Before we begin, I would ask my colleagues to introduce themselves around the table, starting with our deputy chair, Senator Cordy.
Senator Cordy: Thank you, chair, and welcome to everyone. My name is Jane Cordy, and I’m a senator from Nova Scotia.
[Translation]
Senator Cormier: Good morning to you all. René Cormier from New Brunswick.
Senator Petitclerc: Good morning. Chantal Petitclerc from Quebec.
Senator Brazeau: Good morning. Patrick Brazeau from Quebec.
[English]
Senator Lankin: Good morning. Senator Frances Lankin, sponsor of the bill, Ontario.
Senator Seidman: Good morning. Judith Seidman, Montreal, Quebec.
Senator Dasko: Donna Dasko, a senator from Ontario.
Senator Osler: Gigi Osler, a senator from Manitoba.
Senator Moodie: Senator Rosemary Moodie from Ontario.
Senator Burey: Sharon Burey, a senator for Ontario.
The Chair: Thank you very much.
Our witnesses are joining us by video panel. They are Jim Stanford, Economist and Director, Centre for Future Work; and Charles Smith, Associate Professor of Political Studies, St. Thomas More College, University of Saskatchewan.
Thank you so much for joining us today. I invite you both to provide your opening remarks. You have five minutes. Mr. Stanford, please proceed when you are ready.
Jim Stanford, Economist and Director, Centre for Future Work, as an individual: Senators, thank you for the opportunity to participate in this inquiry.
I am an economist and director of the Centre for Future Work, a labour economics institute based in Vancouver. I hold a PhD in economics, honorary appointments at McMaster University and the University of Sydney, and I have 30 years of professional experience in labour policy analysis.
The amendments to the Canada Labour Code and Canada Industrial Relations Board Regulations, or CIRB, regulations contemplated by this bill, which would prohibit the use of replacement workers to perform work normally undertaken by workers engaged in a duly constituted labour dispute, are a welcome step forward in Canada’s industrial relations regime.
Replacement workers are used during work stoppages to allow enterprises to continue production and business, thus protecting the stream of revenue and profits flowing to the business in question. By so doing, the use of replacement workers undermines the integrity of the collective bargaining process, prolongs disputes and leads to inferior outcomes to those disputes.
I start from the fundamental premise that collective bargaining is a good thing. It offsets the inherent imbalance of power in the employment relationship between employers and employees. This imbalance derives from the fact that employers initiate and control production. The dependence of workers on their employer empowers employers to extract more effort for lower wages. Left to the terms of one-on-one negotiations, wages will tend to decline over time. In economic history, collective bargaining has been essential to the attainment of inclusive prosperity — that is, an economy in which average working people can enjoy a comfortable and reasonably secure life. However, despite these broad economic and social benefits of collective bargaining, many employers try to avoid or resist it for the simple reason that it generally leads to higher labour costs and constrain the unilateral authority of employers in the workplace.
Using replacement workers during a work stoppage is an appealing way for employers to evade collective bargaining. If, in the event of a work stoppage, the employer can carry on business anyway, then they can ignore or resist union demands. In effect, the employer can use a work stoppage, sometimes provoked deliberately, to step outside of the collective bargaining relationship entirely. Knowing this is a possibility hardens employer attitudes and creates major impediments to genuine and constructive collective bargaining. Negotiated settlements are always best, but if an employer thinks they can starve out workers instead of reaching an agreement, then they will be less committed to the bargaining process.
In addition to this negative effect undermining the integrity of the collective bargaining relationship, the use of replacement workers has other negative outcomes, including prolonging labour disputes, which enhances the hardship and lost income for the workers involved, and increasing the risks of spillover disruptions, confrontations or even violence on picket lines.
Some employers worry the reforms in this bill will unleash a wave of strikes that will disrupt the economy and weaken productivity. There is no empirical evidence to support this concern. Work stoppages in Canada have been more common in the last two years, to be sure, due to the disruption caused by accelerating inflation and the resulting decline in real wages. But even today, in historical context, work stoppages are still very rare.
Over the last decade, the proportion of working days lost to strikes and lockouts was about 0.04%, one twenty-fifth of 1%. — the lowest for any 10-year period since World War II. That is one-tenth as frequent as work stoppages proportionately in the 1970s. In other words, the frequency of work stoppages relative to the size of the overall labour market has declined by 90%. This trend reflects the decline of union representation in the private sector and other legal regulatory and economic barriers to collective bargaining.
There is limited scholarly research on the impact of prohibitions on replacement workers on the incidence and duration of work stoppages based on historical experience in Quebec and B.C. There’s no evidence of a statistically significant impact of these measures on overall days lost to work stoppages. Some evidence suggests work stoppages are more frequent but of shorter duration and no net impact on the total number of days lost. Other evidence suggests that prohibiting replacement workers is associated with higher private sector wages, which is consistent with the story I just told about the importance of effective collective bargaining in lifting wages. That also helps to explain strident opposition of employer lobbyists to these proposals.
In sum, this legislation is an important step forward in Canada’s industrial relations architecture, and I support it wholeheartedly. It will reinforce the integrity of collective bargaining, which plays a vital role in the attainment of a more inclusive and fair economy.
Thank you again for the opportunity to appear today.
The Chair: Thank you very much, Mr. Stanford.
Charles Smith, Associate Professor of Political Studies, St. Thomas More College, University of Saskatchewan, as an individual: It’s an honour to be here to talk to distinguished senators and to follow in the discussion after Mr. Stanford. I have known Jim’s work for a long time, and I find myself agreeing with virtually everything he said.
I have a PhD from York University. I’m a professor of political studies in Saskatchewan. I also recently created a labour studies certificate. I’m the president of the Canadian Association for Work and Labour Studies and have been following this debate quite closely.
My points today fall into four categories, and —
The Chair: Mr. Smith, my apologies for interrupting. We’re going to ask you to slow down a little so that the interpreters can keep pace. Thank you.
Mr. Smith: My apologies. Maybe I’m a little nervous or I had too much coffee this morning.
The Chair: That’s fine.
Mr. Smith: My remarks will fall into four broad categories.
The first is that when we look at the history of Canada’s system of industrial relations — this goes back to the foundation of the system in the 1940s — it’s always premised on the promise of balance between unionized workers and employers. Government rules or government legislation has always promised a balance between these two competing forces. When you look at it historically, however, they have never been able to achieve this balance between the parties, in part because employers always had the ability to continue production during legal disputes by bringing in replacement workers, or scabs, as some union workers would call them. That ability to bring in replacement workers, in addition to the rules that allow employers to stockpile product or to do other forms of economic change during a legal dispute, has always given employers the ability to last out workplace conflict. Unions have no such ability and rely upon their collective abilities on a picket line to put pressure on the employer. In other words, that balance has never been achieved by law. Anti-scab legislation or the ban on replacement workers goes some way — not the entire way, but some way — to right that ship and to create a legal balance between workers on legal strike or being locked out and employers.
Second, anti-scab legislation can help achieve this balance by promoting collective bargaining, as Professor Stanford said. I too believe in collective bargaining as a great relationship between workers and their employers. It promotes dialogue and democratic workplaces and gives workers a voice in workplace decisions. I contend the anti-scab legislation allows collective bargaining to be entrenched or deepened, because it recognizes that any potential strike or lockout will have serious consequences. It also means that both parties have to take serious economic risks to engage in legal strike action or legal lockouts. In other words, the economic risks are serious for both parties to engage in lockouts or strikes.
Third, anti-scab legislation promotes peaceful picketing during strikes. We know from comparative evidence that when replacement workers are used by employers, it increases the likelihood of violence on a picket line. Anti-scab legislation, in my opinion, promotes the Charter-protected rights of expression to unionized workers, because it allows them a peaceful dialogue on a picket line without the fear of other workers being employed by employers to try and take positions and to then tilt the balance during a legal strike or a lockout.
Fourth and finally — I think this point is really worth emphasizing, and Mr. Stanford alluded to this in his concluding remarks — there is absolutely no evidence to suggest that anti‑scab legislation promotes or prolongs strikes by unionized workers. There’s absolutely no evidence when you look at the statistical breakdown of strikes in Canada that there is a correlation between anti-scab legislation and strike activity or strike duration. That’s a full stop: There is absolutely no evidence.
When you look at the passage of anti-scab legislation in British Columbia in 1993 and in Quebec in 1977, we see no correlations between an increase in strikes or strike duration. Professor Stanford is right. Strikes have been falling precipitously since the 1970s. Strikes are complex, sociological phenomenon, and we cannot correlate one example or one piece of legislation to changes in strike duration. In fact, we saw strikes increase specifically post-COVID in Quebec, and it was quite a gigantic leap in strike activity, although anti-scab legislation in that province had been on the books since the 1970s, since the time when I was born.
We cannot see any correlation, and I want to emphasize this point. There’s absolutely no correlation between anti-scab legislation and increases in strike activity or in the duration of strikes by unionized workers.
Thank you very much.
The Chair: Thank you very much, Mr. Smith.
Colleagues, we will go to questions. We have quite a few senators who wish to ask questions.
Senator Cordy: Thank you very much. Your presentations were both excellent and gave us a lot of details.
I didn’t realize that work stoppages have decreased significantly since the 1970s, although, Mr. Stanford, when you said it, I looked back and thought, “Yes.” I don’t have the stats, but it makes sense, so thank you very much for that.
You’ve given us a lot of the reasons why the anti-scab legislation does not create more strike activity, and you both gave us a lot of examples of that. You also both noted that it can promote dialogue. I have heard and read about the teamsters’ union being quite concerned that, although this passed unanimously in the House, if the government does change it, some of this “pro-union legislation,” so to speak, might be backtracked. Have you any concerns about that?
Mr. Stanford: Senator, perhaps I’ll go first. Thank you for the question.
If I view this as a positive step forward, then I’m naturally aware of the risk that it could be reversed. The fact that the legislation was approved unanimously in the House of Commons, which is a rare and in many ways very positive event, gives me a certain amount of confidence that this is something that is seen as beneficial across the aisle of politics. In that regard, this could be a rare example of how political representatives can come together to do something that I would view as sensible and, in some ways, non-partisan. It’s an institutional step forward in how we govern labour relations in Canada that makes a lot of sense. Obviously, there are shorter-run political considerations influencing the positions taken by different parties, and I’m aware of that.
The other fact is that the political parties involved will be responding to what they perceive as the shifts of public opinion and, in Canada and other countries, it’s clear that there’s a lot more sympathy for workers trying to come together to negotiate fair wages, better job security, basic benefits and pensions, much more so than in the past. Perhaps in the wake of the much more tumultuous period in the 1970s, unions might have been seen as scapegoats or less constructive forces in society, but that is not the case today. Opinion polling shows that the majority of people understand what unions are trying to do and see this as a positive goal. In a way, that gives me some confidence that political parties of all stripes will want to respect the vote that did occur in the House of Commons, and I hope that it is a strong enough reflection of a view across Canadian society that it could withstand future changes in government.
Mr. Smith: Comparatively, when we look at the evidence in B.C. and Quebec, it’s true that the anti-scab legislation passed by the PQ in the 1970s and by the B.C. NDP in the 1990s was promoted by social democratic left-of-centre parties. When they were replaced by conservative governments, in both cases, they didn’t repeal anti-scab legislation, and they didn’t do that, in part, when you look at the evidence, because it works. It does promote Charter-protected rights of expression, it does promote peaceful relations between employers and unions on the picket lines or during lockouts, and it actually leads to less conflict between these parties. I think that’s one of the reasons why we see it not being repealed by conservative governments, even though, in other cases, they have been more “anti-union.” I think the evidence is clear that when you have good public policy that promotes what it wants to do, conservative and progressive parties can actually find some agreement there.
The Chair: Colleagues, I forgot to mention four minutes each for your questions and answers.
Senator Seidman: Thank you for your presentations.
Proposed clause 94(a) of this bill amends the Canada Labour Code to prohibit the use of specific replacement workers such as
any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day on which notice to bargain collectively is given;
The House of Commons committee expanded the scope of the prohibition to include other replacement workers, such as any employee “who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively is given” as well as “any volunteer, student or member of the public.”
What is your opinion about this particular amendment that the House of Commons put forward? It was agreed to unanimously as well. Does this prohibition exist in B.C. and Quebec, since we are using B.C. and Quebec as examples here? To what extent are these groups currently being used as replacement workers during strikes or lockouts in the federally regulated private sector? I presume that would include, for example, transferring employees from a city to a rural area or vice versa.
I might start with you, Mr. Stanford, and move to you, Professor Smith. Thank you.
Mr. Stanford: Thank you, senator.
It seems to me the intent of that amendment was to strengthen the effect of the restriction on replacement workers. There are all kinds of ways that employers can adjust or manipulate the role, if you like, of workers to try and evade some of the normal restrictions that they would face through collective bargaining. We see this all the time, for example, in union organizing drives where employers in the lead-up to a vote or a card certification hearing will adjust how many people they have on the payroll on a day-to-day basis in order to try to inflate the numbers and reduce the chances of success for the union.
A similar practice can occur, obviously, if there’s a restriction on replacement workers of one sort but not extended generally across the group that could be working during a work stoppage. Then employers will naturally try to take advantage of that, including shifting people across classifications and locations or even hiring people on a temporary basis in order to evade those restrictions.
I support the intent of that amendment. I cannot comment on whether this restriction is in place in B.C. and Quebec. I’m sorry for that. However, I have seen many instances, including in the federally regulated private sector, of employers using all kinds of ways to try and maintain their business. We saw, for example, in British Columbia a three-year strike situation for a group of workers at Ledcor and a telecommunications contracting firm, a three-year strike to try to get a first contract.
Senator Seidman: You’re using all my time.
Mr. Stanford: My apologies. I’ll leave it at that.
Senator Seidman: I’m sorry, but I only have four minutes, so if I could hear from Professor Smith as well, I would appreciate it.
Mr. Smith: With the B.C. example, management is allowed to continue working. They are allowed to continue to bring other management from other locations into the workplace, which I would argue is somewhat of a flaw. I think there are sometimes legitimate reasons why employers have to continue using management. There could be health and safety issues to the public and so forth, so I think those are discussions we could have.
I agree with Mr. Stanford that the restrictions that Parliament agreed to did strengthen the anti-scab provisions of the bill. Actually, the federal legislation is now stronger than the B.C. one because of that. That’s a —
The Chair: Mr. Smith, I must go on to Senator Osler.
Mr. Smith: Okay, I understand. Sorry. I hope that helped.
Senator Seidman: Yes, it did. Thank you.
Senator Osler: Thank you to both of the witnesses for being here today.
You’ve both mentioned British Columbia and Quebec as provinces that have similar legislation prohibiting the use of replacement workers. Are there any cautions or lessons that can be learned from those provinces from the implementation of replacement worker prohibitions? Perhaps I’ll start with Professor Smith first and then Professor Stanford.
Mr. Smith: The lessons from Quebec, I would argue, are not cautious but something to celebrate. One of the reasons the PQ brought in the legislation it did in the 1970s was because of the quite violent situations that were occurring in the Quebec construction sector. One of the reasons the Lévesque government chose to move on this was because various reports showed that the violence was getting endemic, and the anti-scab legislation was a key tool to try and address that concern. Arguably, it has been quite successful.
I do think that the B.C. legislation could be stronger for the reasons that were previously identified. I think there are all kinds of reasons, as Mr. Stanford alluded to, that employers will shift designations to try and sort of get around some of the looser rules, so I think Parliament made a wise decision in strengthening that clarification.
We have to be really cautious to suggest that these changes will lead to some sort of increase in strike activity. There is no evidence of that, as I suggested. There are no real cautions that I can see, other than to say that if you want to promote collective bargaining and peaceful, Charter-protected relations between employers and unions, then this is an excellent tool to begin that process.
Mr. Stanford: I would just very briefly agree with Professor Smith. I think the experience in both B.C. and Quebec has been positive, and this measure promotes better resolution to collective bargaining, better agreements, shorter work disputes and better outcomes for workers. I think the experience there has been positive.
There are other countries that also have anti-scab or restrictions on replacement workers, including Japan and South Korea. In Europe, there’s no explicit prohibition, but the practice is virtually unheard of. Again, those are places where the collective bargaining relationship has stronger integrity and better results as a result.
Senator Osler: Thank you.
The Chair: Mr. Smith, would you like to take a bit of Senator Osler’s time to finish answering the questions that Senator Seidman posed to you?
Mr. Smith: Could you repeat those questions, please? I’m sorry.
Senator Seidman: Thank you. I think you answered the part about B.C. I’m not sure about Quebec, whether they have the same prohibition. It has to do with the House of Commons expansion —
Mr. Smith: Oh, yes.
Senator Seidman: — to prohibit people transferred to the workplace. Maybe you could just answer to what extent these groups are currently being used as replacement workers during strikes or lockouts in the federally regulated sector now.
Mr. Smith: In the federal sector, I’m not as familiar with every situation, so I couldn’t claim that level of expertise. What we do know is that government tends to use replacement workers rarely, private sector employers much more so. We have seen it in some of the rail and transportation sectors where there are not essential designations. It’s not uncommon outside. The federal government rarely would have used replacement workers, although not never. We’ve seen a little bit of that in Canada Post and so forth, so it has happened historically. I hope that was helpful.
[Translation]
Senator Cormier: My question is for both witnesses.
Subsection 6(1) of Bill C-58 would require that, within 15 days of notice to bargain collectively, the employer and union enter into an agreement indicating which activities are to be maintained during a work stoppage.
In its current form, section 87.4 of the Canada Labour Code authorizes, but does not require, the employer and union to enter into an essential services agreement within 15 days of notice to bargain collectively.
My question is: What factors might influence the time required to conclude such an agreement, considering that there is certainly a period of tension between employers and employees? Do you think the 15-day limit for concluding a maintenance of operations agreement, as proposed in the bill, is fair?
[English]
Mr. Smith: I can take a first crack at that question.
I think it makes sense for employers and unions to have a dialogue about what is considered essential in the potential for a labour dispute, especially when we look at some of the areas that the federal government regulates. Transportation, for instance, is one that makes clear sense to me. We’ve seen tragically too many instances of issues in the rail sector, for instance, or in the airline sector. It makes sense that that dialogue would occur.
I think two weeks is a reasonable time when you look comparatively at how this is done in other jurisdictions. In Saskatchewan, you have to have a board to review essential designations. I think that two weeks seems reasonable to me and is more or less comparable to other jurisdictions. That conversation should occur, and it should give workers voice in that decision and not be unilateral from the employer. I think the legislation goes some way to do that. I would think it’s a reasonable time.
Mr. Stanford: I would agree with Professor Smith on that. This is one of the ways in which, once this practice of prohibiting replacement workers becomes part of the architecture of the labour relations system, all the parties involved can, in essence, integrate this into their regular bargaining processes. The first time that two parties, one employer and one union, sat down to negotiate what’s essential and what isn’t, it would be a novel experience and would require some thinking and negotiation and implementation. But three or four years later when they do it again, it becomes almost part of a routine.
As Professor Smith said, it’s very useful to identify and agree on what are the essential services that have to be maintained. That is easier to do without the prospect of the employer trying to do an end-run around the whole process and operate the whole business with replacement workers. When that risk is taken off the table, then I think you can have a more honest and constructive discussion about what is truly essential and what isn’t, and two weeks should be adequate for that.
[Translation]
Senator Cormier: Thank you. Here’s a follow-up question, out of personal interest. I note that the federal public service — and you partially answered my question, Professor Smith — is not included in this bill. Why is it excluded, for my benefit, so I can better understand?
[English]
Mr. Smith: My understanding was that there was some coverage of the federal public service. I didn’t see a complete ban, unless I missed something — that is possible — in my reading of the legislation. The federal public service does fall under various essential components that perhaps the drafters of the bill were concerned about. My own sense is that you could have a constructive dialogue about what would be essential and what would not through union and employer discussion as well. We also don’t see a lot of evidence of the federal government ever using scab workers during disputes, so it’s possible the drafters felt that that was unnecessary. I would defer that question to the drafters of the legislation, but it is odd to me that they would exclude public servants. In the instance where that could occur — maybe somewhere down the line a more anti-union government took that position — it would seem that would also be a problem and one I would be critical of.
Senator Moodie: Thank you for being here today, witnesses.
I have a two-part question. Dr. Smith, you talked a little about one potential area that may be a gap in this bill, the question of health and safety concerns that might warrant management crossing the picket line. I would like you to expand on how this should be included, if it should be included, in the bill. Second, are there any equity concerns to take into consideration that we haven’t talked about yet? First Dr. Smith and then Dr. Stanford.
Mr. Smith: Just to clarify, management always crosses a picket line because it is really rare that they would shut down their business completely during a legal strike or a legal lockout, especially in situations where there were essential components that were mandated to continue for the health and safety of the public.
My only thought was I think it is legitimate during any legal dispute, strike or lockout, if there are legitimate dangers to the public, that a health and safety agreement would be between the parties and that essential services would continue so that there was no danger to the public. I think this legislation does reflect that, and I would celebrate that. I think it makes a lot of sense.
In terms of equity issues, I would need clarification on what exactly the concerns might be. Unions are democratic organizations that give their memberships the ability to choose when to call a strike vote and to go on strike and what their goals are in collective bargaining. I see no barriers to all members of a union participating in these decisions. In fact, I think strengthening the collective bargaining relationship through legislation like this actually empowers workers. Unions are quite diverse in 2024, and I think that diversity should be celebrated and that strengthening collective bargaining is way to enhance equity amongst workers in Canada.
Senator Moodie: Thank you.
Mr. Stanford: I would concur. In fact, I would say that collective bargaining itself is an equity enhancing institution in the labour market. The obvious equity goal that it’s trying to achieve is a better balance of power and outcome between people who work for a living and people who run businesses for a living. That, in and of itself, is an equity enhancing goal of the institution of collective bargaining.
Within the population of working people, obviously there’s concern around gender equity and racial equity for Indigenous and First Nations people, and my research on the impact of trade union representation and collective bargaining coverage on equity shows quite clearly that having a union and a collective bargaining agreement absolutely enhances the wages, benefits and job security for women, workers of colour, Indigenous people and other equity seeking groups. In that regard, Professor Smith is right. Anything that strengthens collective bargaining as a reliable institution is going to have positive implications for equity in the overall labour force.
Senator Lankin: Thank you to the witnesses. We appreciate you being here with us today.
Mr. Stanford, over the years, I certainly have benefited from your research in understanding some of these items. You both mentioned that there is no empirical data if we talk about frequency of work stoppages and duration of work stoppages. Committee members have had the opportunity to see, in the House of Commons committee work and here, submissions from both labour unions and employer associations claiming different positions on this issue of frequency and duration. Most of it, and I don’t say this with a lack of respect, I would call advocacy research as opposed to empirical research.
Tomorrow, we will be hearing from Professor Hebdon, out of McGill, who coauthored a paper with a professor from the University of Toronto. I’m sorry, the name escapes me. It has been reviewed and published in the journal of industrial relations out of Berkeley. Unlike some of the other research from an earlier period of time, it is more recent in terms of its study and it looks broader than just replacement worker bans. It looks at a range of industrial relations and labour relations policy and comes to the conclusion that there is no statistical impact of the totality of changes in industrial relation policies on this issue of frequency and duration.
With respect to replacement worker bans, it suggests that, in the time looked at, there was no increase in frequency. There may or may not be a statistical variation in terms of duration, but they put that at a level of — when combined with all of the other things, things such as the economy, it is much more impactful on those questions than the issue of the structure of the legislative policy.
Could the two of you comment on that? I don’t know if you’re familiar with that study. I had a hard time reading it. It is very long and very dense, but I think its conclusions are probably the most helpful to this committee with respect to that question. Could you comment in general on your thoughts about that?
Mr. Smith: First of all, it’s nice to talk to you, Senator Lankin. We met when I was a grad student way back when. I doubt you remember, but I do. It’s nice to talk to you again in this context.
I don’t know if Jim has read that paper, but I have. I think it was Professor Morley Gunderson, a University of Toronto professor, if I’m thinking of the same paper. I have read it.
My concern with their argument — again, it’s a disagreement. I wouldn’t question their academic integrity. I think they are great scholars who do good work. I think it’s impossible to take out an independent variable and to then say that piece of legislation has the implications that they are claiming it does, because strikes, when you look historically — again, they are not historians. I am much more of a historian, I would argue, in my work than they are. You can’t independently take out one piece of legislation and then make broad claims about what the implications are. That’s what I think they do in that piece. I would respectfully disagree with their conclusions.
When you look at the evidence from Quebec and especially British Columbia, it’s stark. When the B.C. NDP passed their legislation in 1993, strikes from 1993 fell. In fact, they’ve never been higher post-1993. There have never been more strikes since 1993, since that legislation passed. I wouldn’t argue it is because of anti-scab legislation. I think it has had an impact, but there are so many more important variables to consider historically to look at why strikes occur. Workers don’t go on strike because they want to. They go on strike because they have to because of the situations that occur on a day-to-day basis that we can’t quantify in the way that these professors, I would argue, have.
I would take issue with the argument. When I look at the overall macro strike data, as Professor Stanford has suggested, we have to be cautious of claims — this is where I disagree with the employers’ argument here — that this piece of legislation will then lead to X, Y and Z conclusion. I just think that’s a bad way to do social science, and I don’t agree with the conclusions.
The Chair: Thank you, Professor Smith.
I have been asked by the interpreters to ask colleagues who are not needing their earpieces to please put them on the round circle. We are having some issues, colleagues, and we all know what that could mean.
Senator Lankin, your time has expired, but I’m going to cede my time and ask Professor Stanford to answer that question about frequency and length of strikes.
Senator Lankin: Thank you very much.
Mr. Stanford: Thank you, senator.
Very briefly, I would concur with Professor Smith that there are many variables that determine the shape and form and outcome of the collective bargaining relationship. It is very difficult to zero in on one particular factor. The integrity and power of collective bargaining in the general sense depend on the whole set of labour market policies and institutions that allow workers to form unions, negotiate effectively, implement collective agreements and ensure that the terms are being lived up to, as well as renegotiate them down the road. There are a hundred different steps in that whole relationship, and it is very difficult to pick out one and say that this is the thing that caused strikes to go up or down.
Our goal here should not be to make sure that strikes never occur. There are ways that you could make sure strikes never occur. You could prohibit them, or you could prohibit unions. In Canada, you cannot go on strike unless you have a duly certified bargaining unit and you are outside of the period of a collective agreement. Those are not the goals here. In fact, strikes are a rare but necessary part of an industrial relations architecture that gives workers power to negotiate and to impose a cost of disagreement on employers in order to extract better wages and conditions from them.
In a way, given the overall historically low level of strike frequency in Canada, we may be paying too much attention to this particular question of whether the prohibition on replacement workers will increase or decrease the frequency of strikes. The reality is that strikes are rare and strikes are unpleasant — nobody wants them — but strikes are a necessary part of a collective bargaining system that allows both sides to have real power in the negotiations.
The Chair: Thank you very much.
[Translation]
Senator Petitclerc: I understand that, at present, the Canada Labour Code allows employers to temporarily replace workers during a strike in order to maintain operations, as long as they don’t use them for the purpose of undermining a union’s representational capacity rather than achieving bargaining objectives. In the end, of course, the employer is obliged to reinstate striking or locked-out employees, in preference to replacement workers.
I also understand that this bill proposes a series of prohibitions that relate to replacement workers.
What do you think of these additional protective measures? Are you confident that the more specific prohibition measures added to the bill are sufficient and cover everything we should be trying to cover?
[English]
Mr. Stanford: Thank you.
The framing of this legislation is ambitious and positive and, as our previous discussion has indicated, in some ways potentially superior in incremental ways to some of the provincial legislation that’s in place. To some extent, we will only learn by trial to see what impact it has. The previous wording that you referred to at the beginning of your question was obviously inadequate, because we had many instances — I mentioned Ledcor, or another example is the Autoport dispute in Nova Scotia with CN Rail — many examples of companies clearly using their existing capacity to mobilize replacement labour to defeat serious collective bargaining. We need to have these measures, and this is an ambitious and appropriate response, and I think it will have a significant and positive impact.
Mr. Smith: I would agree with Mr. Stanford.
If I have one criticism of this bill, and I know the minister has spoken to this, I do think that the time between when it is passed or receives Royal Assent, assuming the Senate agrees and passes it duly, is too long. I know the minister has said the labour board will need time to train its personnel and to hire more people. In B.C. and Quebec, it was much quicker than what we have done here. I know the federal jurisdiction is larger. I find the time between when it would receive Royal Assent and when it would be implemented to be too much of a delay given the importance of this legislation. Again, I defer to the minister’s expertise and the labour board’s expertise, but I wasn’t convinced by that argument. That is my one criticism. I would agree that the bill is substantial, and it could have been weaker. There are things that could have happened. We have seen in other places where half measures have been taken. I applaud the minister for the bill that has been introduced.
The Chair: Thank you.
Senator Burey: Good morning, and thank you for being here, Professors Stanford and Smith.
Bill C-58 has the prohibition of replacement workers, and it is seen as a necessary step to ensure fair labour negotiations. As reported by you, Professor Stanford, you said it is an important step in industrial relations.
I wanted to clarify something that you said. You were commenting on the 90% decline of strikes, and you quoted something else, another statistic of 0.04% days lost due to work stoppage. Then I heard something else, but I am not sure. I am curious to know if I was correct that this may be related to some decreases in unionization. Could you comment on that clarification, Professor Stanford and also Professor Smith? Can you also give us your ideas on its possible impact on productivity? So clarification first, and then go on. Thank you.
Mr. Smith: I would defer to Professor Stanford on the issue of productivity because he is a highly esteemed economist and I’m not.
With regard to declining unionization rates, that has been occurring in Canada since the 1980s. It has been happening across the industrialized world as G7 and G20 countries have offshored manufacturing to so-called low-wage jurisdictions. I use the word “so-called” seriously there because there were deliberate strategies. Nevertheless, that has been one of the reasons we have seen a decline in strike activity.
I would add a little bit to what Mr. Stanford said earlier about strikes being important. We shouldn’t see strikes as a failure of the system. We should see strikes as an important component of the system. Even if strikes were to go up after this bill was passed, that is not necessarily a failure of the system; in fact, it is part of the industrial relations process.
This is where I’ll leave Professor Stanford to go into more detail, but one of the things I have always been curious about employer opposition to anti-scab legislation is that when we look at the evidence, it provides a level of stability that employers have historically celebrated. When we look at stability, we know that if there are clear rules to the game that affect everyone clearly and we know those rules, it leads to a more positive environment where I would argue investment can be more predictable. That is something we should celebrate as successful public policy. That is my argument in terms of answering your question, but I’ll leave it to Jim, to talk about the economic implications.
Mr. Stanford: Thank you, Senator Burey, for the question.
To repeat the statistic I mentioned, it was 0.04% of working days lost on average over the last decade to work stoppages, both strikes and lockouts, or one twenty-fifth of 1% of time. That is down by over 90% from the peak levels experienced in the 1970s where the highest level of work time lost would have been 0.5%, so half of 1%. That is still small but more than 10 times bigger than what’s been experienced in the last decade.
The decline in private sector unionization in Canada over that period, including in the federal sector, is a key reason there, as are the general constraints on the ability of unions to exert bargaining power. One reason that unionization has declined is the feeling — I think it is false — among many workers about what difference is a union going to make. That relates to the ability of unions to go to the negotiating table and make progress for their members. An inability to conduct effective industrial action when it is needed is never the goal, but when it is needed, the ability —
The Chair: Thank you very much, Professor Stanford.
Senator Brazeau: Good morning, gentlemen. I hope you are doing well. I would like to thank you for sharing your insights with us.
Politically speaking, when we get a bill that is passed unanimously, it sends a pretty strong message to the Senate, but we still have to do our due diligence. Having said that, do you have any specific recommendations for this committee to consider to potentially move forward and perhaps add amendments to strengthen the bill? Do you have anything specifically to recommend in that sense?
Mr. Stanford: I would echo Professor Smith’s suggestion earlier regarding the time frame for its implementation. If we all agree that this is a sensible thing to do, then we should move quickly with the CIRB to try to implement is as quickly as possible. That might be one incremental improvement that the Senate could consider.
Mr. Smith: I would echo that issue as something the Senate could recommend. If we all see value in this policy to provide peaceful relationships between employers and unions, that is something we should celebrate and should move quickly on. Thank you.
Senator Bernard: Thank you to both our witnesses for being here. I apologize. I missed your opening statements because I was in another meeting. Dr. Stanford, it is great to see you again. It has been some time.
Forgive me if this question has already been asked in some form, but looking at this legislation, one of the things that keeps coming to my mind is the fact that many people from marginalized, equity serving communities often are only able to get into the labour market as replacement workers during lockouts. I have seen this happen repeatedly in my home province of Nova Scotia. How might this legislation impact those types of experiences?
Mr. Stanford: Thank you, senator. That is a very thoughtful question.
One of the reasons marginalized or racialized workers might be targeted as replacement workers during strikes is precisely because of their exclusion from more secure and stable jobs. Therefore, they are desperate to take on a job even though they know full well that they are going to have to cross a picket line, which is not pleasant, and the job will not last. Even under existing laws, when the strike is over, the initial workers get their jobs back. In this regard, it is a symptom of their exclusion from the rest of the labour market that this opportunity — which is not much of an opportunity, frankly — is provided to them. I think this points to the necessity of incorporating within an overall collective bargaining regime a strong commitment to equity promotion, including the hiring of racialized workers, women and other disadvantaged groups, through unionized and contract covered workplaces.
Mr. Smith: I would agree with that analysis.
Senator Bernard: Thank you.
Senator Dasko: The topic of replacement workers has come up a few times. I want to dig deeper into where it is permitted to use replacement workers. The term “essential services” has come up. The term “emergency services” has also come up, which is a different term. How are these defined, and what is allowed in these situations in terms of the bill? When are employers permitted to use replacement workers in these situations? I want to make sure I understand what is permitted and what this bill changes. Thank you.
Mr. Smith: In all jurisdictions except for Quebec and British Columbia, employers are legally free to use replacement workers. Manitoba is contemplating bringing in similar legislation to what the federal government has introduced, so that would be a third jurisdiction. Anywhere else besides those two provinces, currently, it is legal to do so.
I would argue that replacement workers are not a good barometer to protect the public during disputes. They’re not a good indicator of what an essential service is. I’m not familiar with every single instance of this occurring, but when you look comparatively over historical periods at when employers use replacement workers, it is not to protect the health and safety of the public. It is to maintain the productivity to the best of their ability during a private sector or a public sector dispute. Replacement workers are not as well trained as permanent workers. Replacement workers do not have the experience. Arguably, when you use replacement workers, even in sensitive areas where there could be a health and safety issue either to the workers or to the public, you are putting them more at risk because they don’t have the training and the expertise that the permanent workforce has.
Essential workers would be part of a bargaining unit or part of management and would continue to work during a legal strike or lockout because they are deemed to be essential and thus legislatively have to stay on the job. Nurses would be a good example of that. For example, you must have a certain nursing component during a legal nurses’ strike to maintain medical services for the public. You wouldn’t want to bring in a replacement worker who didn’t have the training of a skilled nurse in that situation. That is my understanding. Jim can continue that conversation.
Mr. Stanford: Charles is right. The idea of using replacement workers to try to provide emergency or essential service doesn’t make any sense. This is why taking the replacement worker issue off the table, as this legislation would do, creates a situation where the two sides can negotiate, with CIRB oversight as needed, regarding what types of services need to be continued. The union can be assured that this isn’t a way to break the strike. This is genuinely a way to continue to provide essential services to the public. I think this bill sets the table for a more effective and trustworthy provision of emergency and essential services during work stoppages.
Senator Dasko: I have other questions but I’ll leave them for now.
The Chair: We have another panel coming, so perhaps we should thank the two professors for coming here this morning and sharing their wisdom with us. Thank you very much.
Mr. Smith: Thank you.
Mr. Stanford: Thank you for having us.
The Chair: Colleagues, we are continuing our study of Bill C-58 with our second panel. The minister is joining us in person. Thank you very much, minister, along with your officials. However, senators, the minister has a vote at 10:30, so we will suspend very briefly at that time so he can vote electronically.
Welcome, minister. The minister is accompanied by Mr. Gary Robertson, Senior Assistant Deputy Minister, Policy Dispute Resolution and International Affairs, Labour Program; and Ms. Zia Proulx, Director General, Strategic Policy, Analysis and Workplace Information Directorate, Labour Program. Thank you for joining us today, Minister O’Regan. I invite you to make your opening remarks, five minutes.
[Translation]
The Honourable Seamus O’Regan, P.C., M.P., Minister of Labour and Seniors: Thank you, Madam Chair. The labour movement has been telling us for years that replacement workers are bad and a distraction that prolongs labour disputes. We’ve listened to them, so we’re banning replacement workers.
I’ve spent a lot of time around the bargaining table over the past two years. It’s hard work and sometimes tense, but collective bargaining works. The Federal Mediation and Conciliation Service has resolved 96% of labour disputes without stoppage. That’s where the best agreements are reached, agreements that are fair and lasting for both employer and workers.
Sara Nelson, International President of the Association of Flight Attendants, said the following:
Collective bargaining aims to solve problems. Companies that are required to participate generally fare better, because they have had to iron out differences with workers at the bargaining table.
Replacement workers distract from all that; they prolong disputes and they poison workplaces.
With Bill C-58, we will ban replacement workers in federally regulated workplaces. The penalty for violators can reach up to $100,000 per day. It’s a question of stability in free and fair collective bargaining. With Bill C-58, the union and the employer will share equal responsibility. That’s what we want.
Take the Port of Quebec. They’ve been locked out for 18 months — 18 months — and there are replacement workers on site. This is not sustainable. It will poison the workplace for years to come. Collective bargaining takes effort, but it can work and it can work better. We have a business continuity process to ensure that services are delivered during a strike or lockout; it’s a truce, an agreement. At present, that truce is not mandatory, and both employers and workers have requested improvements.
Under Bill C-58, the employer and unions will convene and determine what work must continue during a strike or lockout. Clear deadlines are set; the parties will have 15 days to reach an agreement, or the Canada Industrial Relations Board (CIRB) will intervene. This is something that both employers and unions want. It will bring more stability to negotiations.
We believe in collective bargaining. Stability and certainty in our supply chains are essential. I am delighted to answer any questions you may have. Thank you.
[English]
The Chair: Thank you very much, minister. We have lots of senators wanting to ask questions, but let me start off with the first.
We have been informed that, between 2012 and 2023, federally regulated employers used replacement workers in 42% of strikes and lockouts. I’m not sure if that figure includes the federal public service and its agencies, but even if it doesn’t, we’d like to know why the bill excludes federal public service unions and what the background to that decision is.
Mr. O’Regan: I only have responsibility over the code. The public service is a completely different domain that is outside of my authority and outside the Canada Labour Code. So, it simply isn’t my domain.
The Chair: I see.
Mr. O’Regan: Regarding the 42%, I have to be sure we have the correct context, senator. That’s 42% of the 4% that the Federal Mediation and Conciliation Service is not able to bring the authorities to agreement. I dare say you’ll find a more effective part of the public service than the FMCS. That success rate is enormous. So when you say 42%, the 42% is of the 4%.
The Chair: It’s still a fairly high number, so therefore we welcome your legislation. It’s not criticism.
Mr. O’Regan: It is not that I am proud of that, but that is a very big number of a very small number.
The Chair: Point taken. That’s why you have this legislation, in a way, to bring it even further down.
Colleagues, we will start with questions.
Senator Cordy: Thank you very much, minister, for being here bright and early on a Tuesday morning.
When the bill was first tabled, it had 18 months before it would come into effect. That was changed in committee, I guess — I’m not sure where you do it on the House side — to 12 months. We heard testimony this morning from Jim Stanford and Charles Smith that it should be even lower. Their concern is that a change of government might mean — this is coming from the Teamsters Union. The Teamsters Union said that the 12 months:
. . . poses a serious risk to its effectiveness, as it opens the possibility for a future government to repeal the law before it takes effect. Such a scenario would undermine the progress made on this legislation and leave workers vulnerable once again.
I wonder if you could comment. It went from 18 months to 12 months. Could it be reduced further? Is that a legitimate concern that the Teamsters Union has?
Mr. O’Regan: I disagree fervently, and I have been fighting this battle since the inception of this legislation.
I listen first and foremost to, again, the FMCS. I also listen to the CIRB in particular. They are enormously credible institutions within the entire federal civil service. When they told me they needed 18 months, that’s what I agreed to.
That 18 months is not an arbitrary number. The 18 months is because this is the most fundamental change to collective bargaining that we have seen in I don’t know how long, maybe 100 years. You have to understand that, on both sides, both with employers and with unions, you have generations of people who are familiar with the collective bargaining process and who work on a strategic and tactical level that would frankly make me blush with humility. They are tremendously talented people, but there are certain fundamental facts that they have had to deal with. One of them is that replacement workers were always in the game. Now they are not. As somebody who has tried to wrap his head around it, I can’t even begin to understand what a fundamental change that is.
It means a couple of things, but first of all, in this legislation, because of the maintenance of activities, a fundamental fact within this legislation is that the CIRB will be a lot busier, and they will need the resources, both financial and manpower. They will also have to retrain everybody who works for them. When they tell me they need 18 months, I take them at their word. When they have a 96% success rate at collective bargaining, they deserve that benefit of the doubt. I appreciate others’ concerns, but the last thing that I will do is pass this legislation, which is utterly historic, and then find it doesn’t work because the system is gummed up and because we don’t have people trained properly. We are making a pact with unions and with employers that this will run smoothly, and the only way it will run smoothly is if our civil service is well prepared to deal with the increased demand and the fundamental change with how they go about things.
When they told me eventually, through the resources that we were able to give them, that they could reduce it to 12 months, I agreed, but only if they agreed, and I didn’t pressure them to do that either.
Senator Cordy: Thank you, minister. This bill certainly is a huge step forward, minister, so thank you for that.
I’m wondering about essential services. My office staff met with telecommunications, and they understand that 9-1-1 would certainly be an essential service, but would the internet be an essential service? I guess I’m wondering, minister, who determines what an essential service would be in the event of a strike.
Mr. O’Regan: The government doesn’t designate industries as essential, first of all. That’s Part I of the code under industrial relations. It does not include a mechanism to make certain that industries are essential. However, it does require that regulated employers and unions continue any activities necessary to protect the public from imminent and serious danger, even though there is a strike or a lockout. We are not considering any changes to this fundamental requirement.
Zia, did you want to add anything on essential services?
Zia Proulx, Director General, Strategic Policy, Analysis and Workplace Information Directorate, Labour Program, Employment and Social Development Canada: That’s exactly correct, but the parties need to make sure at the beginning, when they negotiate, that in case there’s a strike or a lockout, all the services are maintained for the health and safety of Canadians. The code makes sure that the parties do that at the beginning of the process.
Senator Cordy: That’s helpful. Thank you.
Senator Seidman: I will pursue this a little further, if I might. Welcome, minister.
Clause 9(7) of the bill does include an exception to the prohibitions. It says:
. . . if
(a) the services are used solely in order to deal with a situation that presents or could reasonably be expected to present an imminent or serious
(i) threat to the life, health or safety of any person . . . .
And there are two other items listed.
How do you define a “threat to the life, health or safety of any person”? There is no definition. Who defines it? How is it assured to happen in a timely manner? In a sudden crisis — let’s say a fire or floods or something of that nature — how could we suddenly become agile if we had a strike happening? That’s the substance of my question. It has to do with how we define these and how we react in a timely manner.
Mr. O’Regan: Gary, I’ll get you to start, and I might finish, if there’s time.
Gary Robertson, Senior Assistant Deputy Minister Policy, Dispute Resolution and International Affairs, Labour Program, Employment and Social Development Canada: In the current context, it’s important to know that unions and their employers aren’t obliged to develop a maintenance of activities agreement. They are encouraged to but they are not obliged to, which means that in the current system, you could have that ambiguity and that necessity to intervene on a moment’s notice, which one would argue is unhelpful.
In the proposed legislation, there’s an obligation to establish a maintenance of activity agreement, so to actually think through what might happen in those circumstances — and every industry is different — and then to establish in advance what should be done in those circumstances. We’re envisioning the system to be much more robust and much more able to respond.
I think the thing that’s important to understand is that neither the employer nor the union wants to create a situation where the public is at risk. It doesn’t serve either of their interests. The new system will have them do that before 15 days expires after the notice to bargain. That’s good. If they cannot do that, then they can refer it to the CIRB, who can assist them in that.
Mr. O’Regan: Senator, I’ll give you an example. In January 2003, the Telecommunications Workers Union signed an agreement with Telus that stipulated that members would be available 24 hours a day, 7 days a week, during a labour dispute to repair any telecommunications services for police, fire, ambulance, 9-1-1, hospitals and the Coast Guard. That agreement was actually discussed in 2007 at this very committee. Bill C-58 makes those types of arrangements mandatory.
Senator Seidman: Are you confident that the CIRB would resolve this kind of an issue in a timely manner?
Mr. O’Regan: We are.
Senator Seidman: I’m just concerned because there is no definition, so it leaves very broad powers about what constitutes a “threat to the life, health or safety of any person.” There is no definition that I can find in the legislation.
Mr. O’Regan: It’s fair to say that we also want the CIRB to have some latitude in making those determinations because there is a whole host of things that may require or deem something to be essential in one part of the country that is not essential in another part of the country. I have a great deal of faith and respect in the CIRB. They have gotten me out of hot water more times in the past two years. They are very nimble, and they understand the country well.
Senator Seidman: Thank you.
Senator Osler: Thank you, minister and officials, for being here today.
My question is on Bill C-58 and Canadian competitiveness. The Canadian Chamber of Commerce has expressed concerns about Bill C-58 and has written that, “Canada is building a reputation as an unreliable trading partner” and that, “every moment that one of Canada’s critical industries is subjected to a work stoppage, Canada loses credibility as a place to do business.” The chamber has actually recommended some amendments. Minister, how would you respond to these concerns?
Mr. O’Regan: Bill C-58 gives defined timelines under the maintenance of activities agreements to deal with those things that we deem to be essential.
I frankly think that the use of replacement workers is wrong. If the competitiveness of this country relies on them, then we have a much more significant issue. There is something fundamentally wrong with protecting a worker’s right to strike, as the Constitution does, and then saying that they sit on their hands while they watch other people go by and do work. The ramifications of that on a workplace, as I said in my opening remarks, can last generations. I’ve seen it last generations.
For some reason, the onus has always been put on workers in order to find that stability and find that agreement. I defy that. It’s on both sides. I dare them at every occasion to find the deal. The deal’s on the table. The deal is reachable.
I also find it quite ironic that a lot of people who will probably be viewed as being among the more right-wing end of the spectrum and against government and government interference cannot wait for me to intervene in a labour dispute.
The bottom line is that these are responsible parties that are often in charge of essential parts of this country, the supply chains of this country, and we have, in effect, privatized them, rightly, because the market works well and capital works easily. We will draw more investment. I’m a big believer in that. But don’t come to me every time that you have a dispute. Settle it. Settle it at the table. It’s there to be settled.
I think what some people are unsettled by is that we live in an age right now of a massive labour shortage, and demographically, labour holds quite a bit of sway, and they are asking for more. They’ll find it at the table. That’s where we need stability. That’s lasting stability, not stability on the backs of workers.
Senator Osler: Thank you.
Senator Lankin: Thank you, minister and officials, for being here. We appreciate it.
I will follow up on Senator Cordy’s and Senator Seidman’s questions. Senator Seidman and I have spoken and had conversations with the telecommunications sector, one company in particular. You referred to the TELUS agreements on maintenance of activities, and I think that’s really helpful.
In the new legislation, we’re embedding in the legislation some of the standards around how the CIRB would resolve a dispute about whether something should be maintained or not, and I think everyone, predictably, is thinking about what the new jurisprudence will be that emerges.
In the original bill, you had set out a number of provisions with respect to exceptions to the ban on replacement workers. Through the committee process, clause (c) was added, making reference to transferring people to different locations. You just touched on that when you talked about the CIRB looking at different parts of the country. If it’s rural or if it’s northern, they would have a different fact base to decide on something, so it’s not one size fits all.
There is a request from the telecommunications firm to simply delete that amendment that was added in. Given that it wasn’t in the original legislation — I don’t know if you’ve been approached by them or if you’ve had any conversations within your office — could you give your observations about that amendment and why it was acceptable at the time and how you see this playing out, with the concerns about what the CIRB may or may not do in the future with respect to ruling on maintenance of activities?
Mr. O’Regan: Gary gave me a knowing, nodding look, so I’ll go to him and then maybe finish after what he has to say.
Mr. Robertson: It’s important to note the amendment actually was to address — as I understand it, anyway — the ability to create the environment required for the parties to focus on the table. The key part to your question, I think, is, how does that apply if there is an imminent and serious threat to the health and safety of Canadians or an environmental concern? In those cases, it gets overridden, like any of the rest does. If there’s something serious to be dealt with, it would be dealt with.
Another adjustment is that the right of first refusal, if I can call it that, goes to the union members themselves. If there is a need to intervene, they are approached. One would assume that, in most cases, they would, so the situation is resolved. If they don’t, then they can go to other workers, whether they are contract workers or whether they are employees from other parts of their organization in other locations, but at the end of the day, anything that needs to be addressed from a serious health and safety or environmental basis would get addressed.
Senator Lankin: Thank you.
[Translation]
Senator Cormier: Good morning and welcome, minister. I would like to congratulate you on the quality of your French in your opening remarks.
My question is along the same lines as the senator’s question about the Canada Industrial Relations Board.
We know the adoption of Bill C-58 will grant the board other responsibilities. For example, section 11 of the bill would require the board to handle complaints of non-compliance with the new rules prohibiting the use of replacement workers within a prescribed period or as soon as possible.
What impact will the passage of Bill C-58 have on the board’s workload? Have you assessed whether the board has sufficient resources or needs additional resources to carry out this work?
I’d like to hear from you on this, minister — either you or your officials.
[English]
Mr. O’Regan: Senator, there will be an increased workload on the CIRB. I’m very sensitive to that, which is why I, under a great deal of pressure, insisted on 18 months. I think with some assurance from us that we would have the resources provided, they agreed that they would be ready in 12. It’s only when they said that. It’s only when they had those assurances. That bit, I can tell you over the course of the past year, has perhaps been the most essential bit. I knew that this would not work unless I received the backing of the Minister of Finance and made sure that we had the resources that they had asked for to make sure that they could train and that they could hire, and perhaps internally reconfigure some of their resources to be able to handle something that I think is fundamentally different.
What you have before you and what you are considering is one of the most groundbreaking pieces of labour legislation that this chamber has ever considered. A ban on replacement workers is something that the labour movement in Canada has been asking for since before Canada, when Lower and Upper Canada and the labour factions that were within them had requested this. This is a fundamental change, and the CIRB feels now, I believe, comfortable. This is still very much a wait-and-see thing, and I think any future labour minister would confront it with the effectiveness and the capacity and the ability of the CIRB and the FMCS and want to make sure that both are there to succeed.
Senator Cormier: Will it imply a change in the structure of the CIRB or not?
Mr. O’Regan: I wouldn’t be able to answer that question. Again, they are separate. I leave that to them. That’s not my direction to give. It is my responsibility to ensure that, through all of this, they are well equipped to handle it.
Getting back to the competitiveness of the country, if the CIRB is gummed up because they don’t have the resources or the time, that is a serious issue of national competitiveness now in this environment. It is absolutely essential that this government and future governments ensure that they are well equipped to handle this.
[Translation]
Senator Cormier: Thank you very much, minister.
[English]
The Chair: Minister, are you being called to vote now, or should we carry on and suspend as you are called?
Mr. O’Regan: I will just check my time. I would only interrupt these proceedings for democracy.
The Chair: We would allow you to do that.
There seems to be no indication that the vote is happening right now, at least from you, minister, so we will use our time.
Senator Bernard: Minister, thank you for being here.
I would like to ask about gender-based analysis. I am wondering if a Gender-Based Analysis Plus was conducted regarding the provisions of this bill. I am interested in how the adoption of this bill would impact diverse groups of Canadians, equity-deserving groups. They are my interest. Many of them are typically hired as replacement workers because they are locked out of the regular labour market.
Mr. O’Regan: Senator, I’m desperately going through my notes because I do know that a GBA Plus analysis was done.
I think Gary has the details in front of him.
Mr. Robertson: It was done, yes.
I would point out that the federally regulated sectors are more male-predominant than many other sectors — if you think about interprovincial or international trucking or some of the others. Just slightly more than 60% are men right now, but we are seeing that changing over time. Similarly, other equity-deserving groups are represented to various degrees. Banking, for example, would have better representation than others. We have factored that in, and we are seeing that, as the environment continues to evolve, this should provide equal benefits to any of the folks who are regulated by the federal jurisdiction.
Senator Bernard: Thank you.
I’m also wondering about the connection with the employment equity legislation, which itself is very outdated and waiting for much-needed changes.
Mr. Robertson: I’ll just defer to the minister for a moment.
Senator Bernard: I’m not sure if you heard the question, minister.
Mr. O’Regan: No, I apologize. I’m just trying to get democracy working.
Senator Bernard: I appreciate that. On the Senate side, we are a bit envious about the fact you can actually vote electronically.
Mr. O’Regan: It is marvellous and usually a bit more seamless, but of course, in front of all of you, it has decided to do something I have never seen it do before.
Joe back there will sort it out. My apologies.
Senator Bernard: I was asking about the connection between this legislation and the employment equity legislation, which we know is outdated and is, itself, waiting for some much-needed changes.
Mr. O’Regan: Yes. I think you know those changes are happening, so I am quite happy about that.
In fact, Dr. Adelle Blackett is currently in Geneva presenting some of her findings. We have already announced that we are willing to make some preliminary steps, and I’m very happy about that. Her work will most definitely be incorporated into this. That’s going to be another sweeping change that will affect the federal government and federal public service. But yes, all of that will be incorporated. I’m very proud of that report. She has done tremendous work. It is an incredibly well-written document that I encourage all of you to take the time to read. It’s a good read. You don’t often find that.
Senator Bernard: Many of us are anxiously awaiting the next steps.
Mr. O’Regan: Indeed, senator.
Senator Dasko: Yes, indeed, many of us are looking forward to that, minister. We will have to have you back —
Mr. O’Regan: As a gay man, I’m thrilled with it.
Senator Dasko: Terrific.
I am going back to the replacement workers and essential and emergency services, just to clarify one point I am still not clear about. Bill C-58 was amended at committee to stop employers from reassigning existing workers and contractors to different locations. Did I hear you say, Mr. Robertson, that in emergency situations, it can happen that workers can be reassigned? This is to the minister as well. I just want to make sure I understood. This amendment was made at committee, but workers can be relocated?
Mr. Robertson: I’ll be super clear, because I do appreciate the question.
If it is not related to the health and safety of Canadians or environmental challenges, then they cannot, but if those two factors come into play — one or the other or both — then the system gets overridden. What happens then is there is a staggered approach. The workers from that site have first responsibility to help the employer intervene. If they choose not to, which would be very unusual, then workers from other locations could be brought into play. Again, if it is a health and safety issue, no one wants to be in that game. They want to avoid it. Even if it is serious damage to property or environmental damage, the workers need a location to go back to work after the conflict has been resolved, so it doesn’t serve anyone’s interest to let something devastating happen.
Senator Dasko: For example, would situations of vandalism be included in this?
Mr. Robertson: Conceivably. It depends on the severity of it. What I think of most often is this: Imagine an oil spill in a particular circumstance. That creates a danger to the public, and if it is on an employer site, you would also want that to be remediated appropriately because it could cause serious environmental or facility damage.
Mr. O’Regan: I think the underlying principle, senator, is that the workplace has to remain intact. The workplace you come back to has to be pretty much as you left it.
Senator Dasko: Okay, that answers my question. Thank you.
[Translation]
Senator Petitclerc: Thank you for joining us, minister.
[English]
I have a short, specific question. In the context of the workplace changing very fast and access to remote and virtual work, I don’t have specific notes but, for instance, in my province, Quebec, there was some sort of a loophole or gap in the law. Replacement workers were found in a remote context, and because of the differences in physical address, they could make it happen. I assume it is, but is this possible gap covered by the bill?
Mr. O’Regan: The bill does apply to remote work. I don’t think it would be a 21st-century piece of legislation if it didn’t. If you are working for an employer who is subject to Part 1 of the Canada Labour Code and you participate in a legal strike or lockout, then the bill does apply.
This is an issue in Quebec where there is ongoing litigation about whether Quebec’s ban on replacement workers does apply to remote work. We have learned a lot from Quebec’s and British Columbia’s experiences with this. In Quebec, the ban on replacement workers is linked to an employer’s establishment, as you know — where the strike or the lockout is taking place. The courts are deciding now whether an establishment includes remote work.
Bill C-58 doesn’t use the concept of establishments or anything that is similar to that. Therefore, there is no reason I can think of that it wouldn’t apply to remote work. It applies to all work situations, not just those that take place in a traditional workplace. Whether you are a union member working on a train or plane or are in an office or remotely at a desk, then yes, it applies to you.
Senator Petitclerc: Thank you very much.
Senator Burey: Thank you, minister, for being here, and also your colleagues who came with you. It is not often you get to ask questions of a minister, so I’m going to take my opportunity.
The introduction of Bill C-58 aims to ban the use of replacement workers. You mentioned in your statement, minister, that no government wants to bring in back-to-work legislation. I’m wondering if this bill in front of us is going to impact that. Will this reduce the need to bring forward back-to-work legislation?
For your colleagues, could you comment upon the impacts of this legislation on productivity and unionization?
Mr. O’Regan: Bill C-58 specifically does not prevent back-to-work legislation.
If anybody has any doubt about how I feel about back-to-work legislation, I’ll remind you of July of last year and how I spent two weeks at the negotiating table to get our ports operating again. I would also take note that, during that entire two-week time during which 32 ports on the West Coast of our country were closed, which affected the national economy, not one political party in the other place — not one — asked me for back-to-work legislation. I think times have changed. Having said that, collective bargaining can be hard work. All of this depends on people being able to reach a deal.
Back to your original question, no, Bill C-58 does not specifically prevent back-to-work legislation.
Senator Burey: Does it reduce the fact that it would come into place because it is providing stability and a process for collaboration? Do you think it would potentially reduce the need for that?
Mr. O’Regan: That is the design and purpose. That is not only the design and purpose but also the outcome that we learned from British Columbia and Quebec, namely, that this increases stability. One thing that I enjoy in all the ministries that I have held is that whenever I can reduce anxiety and increase stability and certainty in this crazy world, I will do it. That’s the whole design and purpose.
Senator Burey: Thank you, minister.
The Chair: Minister, you reminded us about last summer and what was happening in this country. It was indeed a difficult time for many Canadians and employees. If Bill C-58 had been in law last year, would the negotiations have been completed earlier? I’m just posing a hypothetical question.
Mr. O’Regan: In this position, it is dangerous for me to be giving you hypothetical answers. I don’t know. I would like to think so, but I think there were other factors at play. That’s why we currently have an Industrial Inquiry Commission on longshoring disputes at Canada’s West Coast ports. I was not satisfied with just finding a deal. Having spent a lot of time staring out of a hotel room, looking out at one of our most important harbours and seeing our ports not working, I spent a lot of time thinking about what was really at play here. I’m happy that the IIC may be able to delve deeper to make sure that these things don’t happen again. One of the most jarring things for me was to see newspaper headlines from the 1930s that were exactly the same as the newspaper headlines I would see on my phone. Things hadn’t changed much, and things needed to change. I’m hoping that the IIC will be able to delve deeper and find out what we need to do to ensure that no labour minister has to go out there again for two weeks, holding up the country’s economy.
The Chair: Thank you. I hope your coming summer is not spent looking out hotel windows.
Mr. O’Regan: You, me and my husband all agree.
The Chair: I hope that we have not gotten in the way of your democratic responsibilities.
Colleagues, on your behalf, I wish to thank the minister for taking the time to be with us and answering our questions.
Mr. O’Regan: Thank you, kindly.
The Chair: Colleagues, we will continue our study of Bill C-58 with Mr. Robertson and Ms. Proulx from Employment and Social Development Canada to further help us examine this bill for the next 30 minutes. We heard today, right before you, from the minister — you were sitting at his side — how pivotal this work is going to be.
Any further questions?
Senator Cordy: I feel like I have asked all my questions to the minister and the previous witnesses, but thank you for staying behind to answer further questions.
Senator Seidman: We couldn’t have a second round with the minister, so how about if we try it with you?
I would like to refer to a briefing note we received from the Federally Regulated Employers – Transportation and Communications, or FETCO. In their briefing to us, in their very concise summary, they make two statements that are rather concerning. They say:
The current government’s proposal to introduce legislation banning the use of replacement workers will lead to serious supply chain and service disruptions, and the potential shutdown of the critical infrastructure services that Canadians depend on every day, such as telecommunications (phone, internet, television, radio), mail/shipping (air, truck, train, marine vessel) and transportation (air, land, sea).
They go on to say:
A ban on replacement workers gives small bargaining units (with hundreds of employees), located in large vertically integrated organizations (with thousands of employees), enormous power to shut down the entire organization for extended periods of time (examples include major airlines, marine ports, railways and telecommunications firms). This extraordinary power, in the hands of the few, will affect Canadians who rely on robust supply chains.
We have all lived this. We all understand the economic impact and the impact on Canadians in terms of services that they need. We have all lived it in the ports. I live in Montreal. I understand the Port of Montreal shutdown. We have all lived it for telecommunications’ importance during all kinds of crises in this country. We have all lived it with the airlines, for example, and the railways. I read that and find it disconcerting. Could you help us understand how that isn’t the case given Bill C-58?
Mr. Robertson: I would start off by saying the system is structured to be in balance. Even if you go back to the 1990s, during the Sims review and the report that he authored, the whole architecture of Part I of the Canada Labour Code is about establishing an appropriate balance. Right now, a number of individual groups could do any of those things that FETCO had articulated in its letter. That’s a pre-existing issue. The question is, is the balance right, and if not, how should it be adjusted? The government has basically said that they believe that it should be adjusted differently than had been established in the late 1990s, for all the reasons the minister articulated already.
Is it more or less likely? There will be a transitionary period and then a modicum of calm that will follow because things will have fallen into what will become the new balance. A number of areas of the bill will significantly improve things. Again, I would point to the maintenance of activities item, because, again, in the federal jurisdiction, we don’t have essential services. To ensure that the parties have established that or gone to the board to get their assistance to establish it will close up a lot of loopholes.
What I will also say, in the event it’s helpful, is that by having the discussions required to come to a maintenance of activities agreement, even if the decision is no activities need to be maintained, they’ve already gone through one structured engagement where they came to an agreement, which one would believe makes it more likely they could replicate on a bigger scale for the more important discussions about whatever it is they are bargaining, whether it is work conditions or salary or whatever it might be.
Senator Seidman: In recounting a brief history, FETCO presents a very interesting historical overview of this. They say that legislation banning temporary replacement workers currently exists only in the province of Quebec and that British Columbia does limit the right to use temporary replacement workers but there are broad exceptions. We heard from witnesses today that B.C. does not have the ban on replacement workers who will be transfers from other areas. Only Quebec that has that ban. They say that there is no ban on replacement workers in the remaining eight provinces or the three territories, nor does it exist in any U.S. jurisdiction. Getting back to a question asked by one of my colleagues earlier about competitiveness and how this would impact the way we are seen by business outside the country, could you comment on that?
Mr. Robertson: I do think their articulation is right. Right now, there are only pre-existing bans in B.C. and Quebec. I will point out, though, that Manitoba has tabled a bill, and that bill looks very similar to the federal bill we are discussing today. I think there is a reason for that. I think more jurisdictions are starting to appreciate that things need to shift, and one of the factors that the minister referred to is the scarcity of the workforce. I’ll leave that for others to consider.
In terms of actual forward-looking predictions, those are always fraught with peril. What I would say is that both FMCS and the CIRB, which the minister cited in earlier testimony, have really effective tracking systems, and they report regularly on those so it’s evident to the public how things are evolving. If something unexpected were to happen, I think it would become apparent pretty quickly. If there is nothing notable, then it is regular life and things go on as expected under the new regime.
Again, I will point out one other thing. I referred to transition versus the more sustained. If you take maintenance of activities — I know that wasn’t the focus of your question, but I find it illustrative — if no one’s ever had a maintenance of activities agreement before, the first round will be very difficult, working through what needs to be maintained. Once the first maintenance of activity exists, then it becomes very easy. What change would cause you to change it in the second, third or fourth round? If nothing, you just leave it be, and if something did change, then you just talk about that. It is my personal belief that things will get better quickly. It’s just the first round transition that might be a little bit bumpy.
[Translation]
Senator Mégie: The minister said earlier that the board had already resolved 96% of these outstanding files. Could you tell us how the remaining 4% were resolved? In court, by closing down businesses or something along those lines? With the expected increase in such litigation with Bill C-58, do you think you’ll be able to maintain the same success rate in resolving cases?
Mr. Robertson: Obviously, the rate varies over time. For example, inflation caused a slight adjustment, but for most, the projection is relatively the same or exactly the same as it is now. Yes, it would be apparent over time, but we don’t have any information right now that indicates much variation in the future.
Senator Mégie: But how will the remaining 4% of cases be resolved? Do you know?
Mr. Robertson: As for the 4%, that’s interesting. The system’s purpose is not to eliminate the possibility of conflict, because it’s consistent with the system for that possibility to exist. Establishing a relationship between the two parties and creating a situation where both parties can have the discussion required to determine a better approach for the future, that’s what’s most important. In most cases, for the 4%, it only takes seven to 10 days to reach a resolution. So it’s hard on the economy and the system, but it’s not a long-term issue, like the Port of Quebec, to which the minister referred. It’s not typical. With this legislation, it probably won’t be in the future.
Senator Mégie: Thank you.
[English]
Senator Burey: Good morning, and thank you for being here.
I wanted to zero in on some of the questions that many of the witnesses brought up. I understand this is part of the process of getting a suite of laws and regulations surrounding stabilizing industrial relations in Canada. We heard from the last panel that there has been an effect in all industrialized countries on decreasing rates of unionization. With your analysis, do you agree with that? Is that factual? How do you think that this bill, maybe not in the short term — I know you don’t want hypotheticals, but maybe in the short or long term, maybe if it has more of a widespread use across countries, it could in fact have a better effect in stabilizing unionization? Comment on this unionization and the decrease and what could happen.
Mr. Robertson: To start — and I will defer to Ms. Proulx on any additional points — unionization globally is declining. It’s declining more in the private sector than the public sector. The public sector still has a much higher level of representation than the private sector. In Canada, in the federally regulated jurisdiction right now, it sits at around 32% roughly. We are not talking about a huge percentage, but it’s a significant percentage.
I can’t predict with certainty whether this bill would increase, decrease or become neutral, but one would assume that anything that’s seen to create a situation where a representative organization could more assist workers on the ground would become more attractive to those workers.
Ms. Proulx: I have nothing to add, thank you.
Senator Burey: Thank you.
[Translation]
Senator Cormier: From the briefing note we received and the list of federally regulated businesses and workplaces, I see that municipalities in the Yukon, Northwest Territories and Nunavut are also governed by this legislation. Can you explain what discussions were held and what impact Bill C-58 will have on those municipalities, so that we can fully understand its impact on these territories?
Mr. Robertson: The impact would be consistent with all other jurisdictions until the territory becomes a province of its own. The federal government assists all these jurisdictions in their industrial relations, and that approach will continue in the future. The same rule thus applies in that jurisdiction, yes.
Senator Cormier: I would like to understand the context behind the introduction of this bill. Since I’m not an expert in labour relations in Canada, have labour relations between employers and employees deteriorated to such an extent that there is an urgent need to adopt this bill — which I support, by the way? Is there an economic, political or labour relations context that is currently driving this bill?
Ms. Proulx: In terms of the specific context, I’d say there have been numerous labour disputes in recent years, as you may have seen in the news. There were conflicts last summer. The minister mentioned them earlier when answering questions. This is among the commitments previously made by the government. Unions have been asking for this for several years, so it’s a long-standing issue. It may be in the forefront more recently, but it goes back several years.
Senator Cormier: Thank you. The list of federally regulated businesses and industries includes the entire radio and television broadcasting sector. How should I interpret that? Does the bill affect these sectors?
Mr. Robertson: It does to some extent. It’s an element that was settled by the government in the Canada Labour Code. Another component was settled through the Status of the Artist Act.
That’s another statute that’s consistent with Part 1 of the code. The rest is regulated by other jurisdictions.
Senator Cormier: Very well, thank you.
[English]
The Chair: I have a question to either one of you. I wonder how broadly the ban on replacement workers will be applied. Will it be applied to existing current unionized workers? What about contract or temporary staff at the workplace even if they are not members of the union? Will it apply to them?
Mr. Robertson: When the act as envisioned comes into force, it will apply to all federally regulated workers regardless of the conditions. If they are regulated by the federal government, it would apply to them at that point. There wouldn’t be any exceptions apart from the ones we talked about with regard to environmental or other serious concerns to the facilities of an organization.
The Chair: Thank you for that answer.
Senator Seidman: If I look at the briefing note from the Canadian Federation of Independent Business, or CFIB, for example, like Federally Regulated Employers – Transportation and Communications, or FETCO, they have a lot of difficulty with this legislation. They say that there’s no evidence that the proposed bill will improve labour relations. They go on to say that in B.C. and Quebec, where similar legislation has been enacted, there have been more work stoppages than most of their counterparts, including the federally regulated sector. They dispute — as does FETCO and other critics — the empirical evidence that suggests that there is no difference in the number and duration of strikes. Do you have empirical evidence that Bill C-58 would not impact the number or duration of strikes? I know we’ve discussed this in earlier questions to witnesses, but there seems to be a lot of confusion about what the empirical evidence is or isn’t.
Mr. Robertson: I appreciate the question, and I appreciate the federation’s views. It’s impossible to have empirical evidence about a future state. I could equally say that there’s no empirical evidence to suggest it won’t. There is a bit of a debate here about what can or can’t happen and what the implications would be.
The minister has articulated why he thinks that this would make sense. As I mentioned earlier, the two organizations closest to industrial relations, the CIRB and the FMCS, both have active tracking systems that they will use to monitor as things proceed, assuming — and it’s an assumption — that this becomes law.
I wouldn’t have anything further to contribute that I think you would find helpful.
Senator Seidman: The FETCO quotes the C.D. Howe Institute, which did a study on labour legislation in Canada, and they found that a ban on replacement workers increased both the number and the duration — 10% more and 60% longer strikes.
The C.D. Howe study also saw a strong correlation between the incidence of anti-replacement worker legislation and reduced job investment, which is particularly interesting. The study noted that the removal of the current temporary replacement workers ban would increase employment by 47,000 jobs in B.C. and 80,000 jobs in Quebec. The issue is that there’s a decrease in employment or investment because of the negative long-term effect of these bans on the economy.
Mr. Robertson: I think it might be helpful to the committee to know that, at the very beginning of our policy work, we did a scan, and there are a number of studies. The one that you cited is one of those, but there are many others. I would say anyone that would look at the series of studies that have been done would say that they are non-determinative for a couple of reasons. One is that the studies were done in provincial jurisdictions, whereas we’re talking on a federal level. They are quite different. As I said before, in the provincial jurisdictions, they have essential services, whereas we don’t have that. We have something similar with the maintenance of activities, but it’s not the same. It’s different. The studies were done in other jurisdictions with different rule sets and different conditions of success. Here, as I said, it’s something that we’re doing federally, and it would apply in a different way. I’m not trying to challenge the study. I think it was a good study, but there are a number of others that are equally good that took different views and had different outcomes.
Senator Seidman: As usual with stats, right?
Mr. Robertson: Yes, it’s both helpful and a bit dangerous
Senator Seidman: We understand that.
Mr. Robertson: It’s helpful and dangerous at the same time.
Senator Seidman: Thank you.
The Chair: Thank you very much to Mr. Robertson and Ms. Proulx for staying behind and answering some of those essential but unasked questions in the first round.
We will now hear from the Canada Industrial Relations Board, Ginette Brazeau, Chairperson.
Ginette Brazeau, Chairperson, Canada Industrial Relations Board: Good morning, and thank you, Madam Chair and honourable senators, for the invitation to appear before you this morning in your study of Bill C-58.
I intend to speak about the Canada Industrial Relations Board’s work and responsibilities and explain the impact that Bill C-58 is likely to have on the board’s operations.
[Translation]
The Canada Industrial Relations Board is a quasi-judicial tribunal that deals with labour relations or employment-related complaints or applications. We offer mediation to help parties reach a settlement and, if necessary, we adjudicate disputes. The board is made up of a chairperson — myself — five full-time vice-chairs and three part-time vice-chairs.
There are also six members representing employers and employees in equal numbers. The panels assigned to hear and decide cases are made up of a vice-chair and two members. Members may not sit alone to decide disputes.
The board is responsible for the application and interpretation of various laws, including the Status of the Artist Act, the Wage Earner Protection Program Act, and of course, the Canada Labour Code. It should be noted that the code comprises four distinct statutory regimes: Part I, which governs labour relations; Part II, which deals with occupational health and safety; Part III, which concerns minimum labour standards; and Part IV, which deals with the administrative monetary penalty regime.
[English]
Traditionally, the board was only responsible for Part 1 of the code, the labour relations aspect. In 2019, amendments were brought to the code that made the board responsible for all parts of the code and, as a result, the board’s caseload has doubled since 2019. We went from getting approximately 500 cases a year to, this last fiscal year, about 1,000 cases.
At the time these changes were made in 2019, there was funding identified for the board’s new responsibilities. The board’s ability to respond effectively and in a timely manner to the disputes that come before us requires sufficiency of funds and the ability and flexibility to swiftly align or realign human and financial resources as the board sees fit to respond appropriately.
I say this, because, if Bill C-58 passes, it will be challenging for the board with its existing structure and resources to deal with complaints of replacement workers on an expedited basis or for the board to address all maintenance of activities matters within 82 days, as provided in the current version of the bill, without further impacting other types of cases that come before the board. It will certainly increase the existing pressures that exist with the current caseload and the resources that we have available.
In order to be prepared to meet the quick turnaround times that are required by the bill, there are two areas that will require attention. The first is resources. The board will need clarity and certainty on the additional resources it will receive to implement the legislation and meet the time requirements that are included in it. I have asked that additional vice-chairs be appointed to the board in order to be able to handle the increased caseload and meet the timelines in the legislation and the expectations of stakeholders. We will also require some additional staff to support these decision makers. The appointment of vice-chairs, who are Governor-in-Council appointments, can be a lengthy process that is led by the Privy Council and involves cabinet ratification. Neither the funding approval process nor the appointment process are within the board’s control. However, I do understand that there is work under way to provide additional funding to the board for the purpose of implementing this bill.
The second area that will require time is the establishment of new rules and regulations. The board will need to review its case processing approach and adopt new rules or revise the existing regulations to expedite the types of matters in order to meet the requirements of the legislation. That is, we will have to deal with maintenance of activities matters within 82 days, and we will be expected to determine any complaints related to the use of replacement workers expeditiously, as those complaints would arise during a work stoppage when tensions are high. This will entail an internal review and the development of proposed rules.
We would normally engage in consultations with the board stakeholders on any new rules that are being proposed, and after these consultations, we would then proceed to drafting and adopting the rules and regulations. We want to ensure that there are appropriate communication materials to inform our stakeholders of the new approach or process that is being implemented, and this may include new forms, practice notes, updates to our website and so on.
As you can see, this involves considerable work and several steps. I understand that we will have 12 months from Royal Assent of the bill to do this work and prepare for its coming into force. I am confident that the necessary preparation work can be accomplished within this time frame.
[Translation]
I am pleased to answer any questions the committee members may have.
[English]
The Chair: Thank you very much, Ms. Brazeau.
As the minister stated, your agency is pivotal to meeting the aspirations of this legislation, and you have painted in some considerable detail what changes will have to be made, human resources and otherwise. Can you help us understand if this is a roughly 25% addition to your workload or a 50% addition? Is it going to be scale up and then scale down?
Ms. Brazeau: Thank you for the question.
It’s difficult to predict what the impact will be, but what we know is that when new provisions are introduced into the code, the parties tend to test the provisions and invite the board to pronounce and provide clarity on the provisions through jurisprudence. With that, we expect some increased workload.
The more difficult challenge here is that these cases will need to be dealt with expeditiously, and that means that all our resources will need to be dedicated to these types of complaints while our other caseload will have to take the back seat, for lack of better words. I’m concerned about backlogs accruing if we’re not able to deal with the existing caseload because our resources will be focused and dedicated to the maintenance of activities and replacement worker issues, which require the board’s quick intervention.
The Chair: Do you currently have any backlog?
Ms. Brazeau: We were in an unfortunate position last year where there were insufficient funds for us to assign cases to external adjudicators, which is an authority I have under the code to send our cases to private arbitrators. We were in a situation where there were insufficient funds to assign cases and, because of that, we have accrued a small caseload of a number of cases under Part 3 of the code — unjust dismissals, wage recovery matters and those types of cases.
The Chair: It is essential for you to receive adequate resources in a predictable, sustained manner so there is no backlog as a result of Bill C-58.
Ms. Brazeau: That’s correct, and I was pleased to hear the minister this morning say that he was committing to that.
The Chair: Thank you, Ms. Brazeau.
Senator Cordy: Thank you very much, Ms. Brazeau, for being here. I think it’s a lesson in that we sometimes don’t always understand what happens when legislation is passed and the effect it can have on other organizations that are around.
What caused the big jump to 1,000 cases a year? Was that a blip, or is it continuing?
Ms. Brazeau: As I mentioned in my opening remarks, there were changes in 2019 that expanded our mandate, so we became responsible for adjudicating matters under the health and safety component of the code as well as Part 3, labour standards matters. The expansion of our mandate resulted in additional cases coming to our board that resulted in a doubling of our caseload. That was what we anticipated back in 2019. We certainly foresaw that those changes would have impacted our caseload, and there was funding at that time allocated for that purpose. However, as I mentioned, we were in a situation last year where insufficient funds resulted in our inability to assign cases, and now we’re seeing an accrual of cases that are pending and awaiting adjudication.
Senator Cordy: Now you have 82 days to get results?
Ms. Brazeau: Yes.
Senator Cordy: You have 82 days, so that is going to make it even more challenging?
Ms. Brazeau: Pardon me, this bill will make it more challenging?
Senator Cordy: Yes.
Ms. Brazeau: Well, as I said, it’s unclear what the actual impact in number of cases will be, but I expect that when those cases come, they will require our focus, attention and our resources.
As Mr. Robertson indicated previously, I think the first round of bargaining, where parties will have to enter into maintenance of activities agreements, the first round of collective bargaining where the parties will have to address that, that will result in a number of cases before the board.
Senator Seidman: Thank you for being with us.
There is no question that CIRB plays a really critical role in this legislation. As you may have heard, we have asked some questions about the role of CIRB. There is a certain degree of apprehension about this because CIRB does have a lot of power and discretion.
As I asked the minister, there are no definitions in this legislation about what “threat to life, health or safety of any person” really means, so there you are in a situation. It could be a sudden crisis in any given environment. How can we be assured that the health and safety concerns will be dealt with in a timely way?
Ms. Brazeau: Thank you for the question.
To the point about there being no definition, the existing provision in the code relating to maintenance of activities does provide for an interpretation of an immediate and serious danger to the health and safety of the public. That’s already in the code. It was introduced in 1999. The board has, on several occasions, considered that provision and provided an interpretation of what that means in the context of Part I of the code, so there is some existing jurisprudence around what consists of an immediate and serious danger to the health and safety of the public through our case law.
Senator Seidman: Excuse me for interrupting you. Could you give us an example of what that would be?
Ms. Brazeau: Our board, for example, has considered firefighters at airports to be a service that has to be maintained in accordance with that definition. With the production of medical isotopes back in 2001, the board determined that that had to be maintained. However, it reversed that decision — I want to say in 2011 or 2012 — because the circumstances had changed. There were other options for the creation and production of medical isotopes. It is very fact specific. Those are a few examples of how the board interpreted and what it deemed to be necessary to be maintained during a strike or a lockout.
Senator Seidman: I’m going to ask you a theoretical question now. If suddenly there is a strike — or not suddenly. I shouldn’t say “suddenly” because there is a lead-up and discussions about maintenance and service. There is a strike in effect, and then there is some disruption. Let’s say fires. How quickly and timely could CIRB meet under this legislation now with all its restrictions? How quickly could they meet in order to deal with the prohibition of replacement workers in such a situation?
Ms. Brazeau: Thank you for that question.
That’s exactly what we are examining now in terms of our rules and procedures, to see how we can modify our approach to ensure that we can react quickly, and also what the parties can expect when we get a complaint like that in terms of us intervening and inquiring into the situation.
Not every case is treated the same, even now. We triage the cases that come in, and we certainly react more quickly when we assess that a case requires immediate attention versus another case that may be able to wait for a hearing at a later time.
[Translation]
Senator Cormier: Thank you, Ms. Brazeau. Earlier today, you and Mr. Robertson mentioned that you had a certain responsibility with regard to the Status of the Artist Act. I’d like to understand your responsibility in this matter. I agree with the objectives of this bill. What impact would Bill C-58 have on the Status of the Artist Act?
Ms. Brazeau: Our role regarding the Status of the Artist Act is similar to our role under the Canada Labour Code. Part II of the Status of the Artist Act is largely inspired by Part I of the Canada Labour Code. It is a system of collective bargaining between producers and independent artists to reach an agreement, a collective agreement that manages their relationship. The provisions proposed in Bill C-58 will not be adopted in the Status of the Artist Act. That is an independent regime from the Canada Labour Code, and there are no such provisions in the Status of the Artist Act.
Senator Cormier: Will the Canada Industrial Relations Board’s work overload caused by the passage of Bill C-58 have an impact on the way you handle cases from the artistic and cultural field?
Ms. Brazeau: Actually, in accordance with the Status of the Artist Act, very few files are submitted to us, about one or two per year. We’ll be able to manage that workload as we go along, by integrating it into our regular workload. I don’t see why this would have a significant impact on Status of the Artist Act files.
Senator Cormier: Can you give us an example of cases you’re dealing with that come from this sector and are related to status of the artist?
Ms. Brazeau: That covers federally regulated producers, such as the National Film Board of Canada and CBC in its production role. Sometimes, the union representing the artists wants to have its industry more clearly defined or expanded. At that point, they submit a request to us, and we have to assess the elements they wish to include, to determine whether this is indeed artist’s work and whether it falls within our jurisdiction. This is called the unit or sector review. That’s the kind of file we receive.
Senator Cormier: I see. Thank you very much for the information.
Senator Carignan: My question pertains to the possibility of having certain workers to protect property from destruction. In fact, the goal is to protect the life, health and safety of any person against threat or destruction, against serious deterioration of the employer’s property or premises, or against environmental damage to such property or premises.
Federally, there’s a great deal of transportation, whether by ship, train or truck. We’re talking about the employer’s goods, so not necessarily goods transported by the employer, but the customers’ goods, in other words. There may be a problem. How will you apply this? Will you use an interpretation whereby these goods, which are under the employer’s power and control, become partly the employer’s property? The fact remains that should there be gas, explosive components or dangerous products, technically, they don’t fall under the exception, because they don’t specifically belong to the employer.
Ms. Brazeau: Thank you for the question. It’s hard for me to state my opinion on that.
Senator Carignan: Do you see the same problem I do?
Ms. Brazeau: Cases like those could come before the board. We will have to take into consideration the facts and the arguments by both parties on the matter.
I would say, generally, that when an emergency or serious situation like the one you describe arises, the parties usually find a way to agree in order to deal with it. That’s part of good labour relations. I’d even say that in federally regulated businesses, labour relations are fully evolved.
In principle, the parties would come together to resolve this type of situation. However, I will avoid weighing in on a specific topic, since these matters could come before the board, and we would have to decide on them.
Senator Carignan: If I understand correctly, you are relying on the part beforehand, meaning that the essential elements that are negotiated by the parties are the ones you would evaluate for the agreement. In other words, it’s a criterion you use to ensure that the agreement on essential services takes these concerns into account?
Ms. Brazeau: What I can say is that current case law has been developed over the last 20 years on services and activities required to prevent danger to public health and safety. The case law still stands. We will certainly look to it for guidance and continue to apply it, because the definition does not change.
If there are other elements we need to consider, and most likely specific situations, we will develop our interpretation as we go along.
[English]
The Chair: Senator Carignan, I’d like to give you more time as critic, but I do have six senators remaining on the list.
Senator Burey: Thank you so much for being here and for laying out the complexity of really getting things done.
The first reading of Bill C-58 provided that the coming into force date would be 18 months from Royal Assent. However, amendments adopted by the House of Commons committee changed the coming into force date to 12 months from Royal Assent. We heard from the minister, and you probably heard it too, that they asked you about this 12 month amendment, and you felt you would be able to do it. I would like your assessment of that. What recommendations or observations could this committee make to expedite the process? It seems to be mission-critical to get your vice-chairs, to get the funding and to ramp up. What could we do in this committee in terms of observations that could facilitate that?
Ms. Brazeau: Thank you for the question.
I am confident that, within the 12 month period, we will be able to do the work we need to do to ensure we are ready and able to deliver on the mandate that is provided in this bill. As I outlined, we do need to review our regulations and our rules of procedure and make sure we are able to respond quickly when those types of cases will come our way. We have already started the work and the assessment and the brainstorming around some of the things we want to change. That work is under way, and I am confident that, with our team, we’ll be ready in 12 months.
What can this committee do to ensure we are well-equipped? I think everyone realizes that the board needs to be appropriately resourced to undertake its work. This will certainly put more pressure on our ability to respond to all the variety of cases that come to us. Any support to increase funding to our board is welcome.
Senator Burey: Thank you.
Senator Moodie: Thank you for being here today.
I want to pursue a little more this question of resources and funding. I keep hearing a theme here in your words, which is, “We’ve talked about it. We need resources. Everyone knows this,” but you don’t seem to have a firm commitment yet to an actual number. Am I correct in hearing that?
Ms. Brazeau: There are ongoing discussions with the department to ensure appropriate funding. Processes are in place to approve that funding and transfer it appropriately.
Senator Moodie: So it is on the way, you think?
Ms. Brazeau: Yes. I am comforted by the fact that there are ongoing discussions around the transfer of funding.
Senator Moodie: I’d like to ask another quick question, if I could, because another area is beginning to puzzle me a bit. The new process will require the development between two parties of a maintenance of activity strategy. As you describe it, when it comes to you as a dispute, you are making fact-specific decisions that are made at the time dependent on current existing conditions, and they can change. How much of a challenge will this process be that we are expecting of these parties? We heard earlier that, first off, it might be a bigger challenge, but it sounds like there are other nuances to how effective these agreements will be. They are coming to you, and you are now taking an environmental scan on the situation and changing decisions based on that. That might have guided them initially.
Ms. Brazeau: Yes. Thank you for the question.
It’s important to remember that the provision on maintenance of activities exists in the code now. It was introduced in 1999, so the parties have some experience and some knowledge of how the board interprets that provision and their obligations under section 87.4 of the code, which actually is in place now. Many parties have already negotiated agreements on their own. Several have come to the board for interpretations already. The board has case law in place already. All of that remains in place. What changes is they now have an obligation to file that agreement with the board prior to filing a notice of strike or lockout. That will force them to focus on the question. Even if they agree that no services have to be maintained, they have to put that in writing and file it with the board.
Like any negotiation, the parties will look at that and discuss it and maybe come to an agreement. If not, they’ll bring it to us. We have a number of officers on the ground who will intervene and try to mediate that issue with them and try to help them come to that agreement. It is only in those cases where they are not able to reach that agreement, based on past experience and the board’s jurisprudence, that it will come for adjudication.
I suspect that in the first round, yes, there will be parties who will want to test the board’s interpretation where we’ve not had the ability or the opportunity to pronounce in a particular sector, for example. I expect that to occur in the first round.
The Chair: Thank you.
Senator Lankin: I’ll cede my time to Senator Brazeau. Ms. Brazeau just responded on the process issues that I wanted to clarify. Thank you.
[Translation]
Senator Brazeau: Good morning, and thank you for being with us today. Before I ask my questions, I’d like to say you have a very special name. There aren’t many of us.
Ms. Brazeau: We’re not related.
Senator Brazeau: No, we’re not. We’ve never met, so there is no conflict of interest. My question is the following.
You touched on this, but I would like you to expand on it a bit. When the bill is passed, there will be a 12-month period before it is implemented. What specific work will the Canada Industrial Relations Board do to prepare or what strategies will it develop to implement the legislation once it’s in force?
Ms. Brazeau: Thank you for the question. We’ve already begun the work. We’ve started by thinking about the processes we want to change. Right now, when we receive a complaint or application, we immediately ask the parties to provide written submissions and include all relevant documents. The parties have 15 days to do so initially and 10 days for a reply. All that takes around a month. We’re looking at whether we want to shorten the deadlines, as well as whether to keep using written submissions or to meet with the parties right off the bat in a hearing or case management conference to quickly deal with important issues.
We are thinking about the approach we want to take. When we decide on an approach, we’ll need to revise our rules of procedure. These steps are set out in our rules of procedure and regulations. We then need to revise the rules, a process that involves drafting work and approval by all members of the board. We also have to prepare the stakeholders who appear before us.
We will notify, meet with, and consult the stakeholders. Based on the consultations, we will produce a report about the procedure we are recommending. Then we will put all that in place, including communications, and practice notes to guide the stakeholders who come to us and let them know what they can expect regarding these matters. We will also update our website. As you see, there is a communication component.
Senator Brazeau: Do you think you’ll be ready when the bill is implemented and you begin receiving applications?
Ms. Brazeau: Yes. As I said, we’ve already started thinking about it. We have also consulted our counterparts at the Administrative Labour Tribunal about replacement workers to see which approach they adopted to deal with these matters. We are already considering these things and identifying potential solutions. The next step will be internal and external consultations to set up a specific path for moving forward.
Senator Brazeau: Thank you.
Senator Mégie: Thank you for being here, Ms. Brazeau.
What were the impacts on the provincial boards in Quebec and British Columbia when they implemented similar legislation?
Ms. Brazeau: Thank you for the question. We learned from our provincial counterparts that it is important to act quickly when it comes to replacement workers. As I mentioned in my opening remarks, it is a time when the working environment is tense, and the workplace and relations are strained. Therefore, it’s important to act quickly to resolve the matter.
In terms of essential services, from what I understand from our colleagues, a lot of work needs to be done beforehand to avoid a whole array of questions when the applications come in. One option is to make a summary of each sector that has questions about essential services. That way, we would be able to understand the workplace and related issues, and do as much work as possible beforehand. We need to avoid waiting until the applications come in to deal with these questions, since at that point we would have very little time to respond.
Senator Mégie: Thank you.
[English]
The Chair: Ms. Brazeau, you talked about upstream work. Earlier on, you talked about the necessity of having new vice‑chairs appointed, assuming that this legislation comes into force by this time next year. In an ideal world, how soon would you want your new vice-chairs to be appointed?
Ms. Brazeau: If we want the new vice-chairs to be ready and able to take on these new cases, it would be ideal to have them six months prior to coming into force so that we have time to train them and inform them and make sure they are well versed in the legislation. In an ideal world, six months prior would be ideal.
The Chair: Sadly, the Governor-in-Council doesn’t seem to live in our ideal world, in many situations.
Ms. Brazeau: It is possible.
The Chair: Thank you so much for sharing an inside look on your important agency. We wish you the best. Thank you for helping to clarify our questions.
Colleagues, we will adjourn until 3 o’clock, when we will sit again.
(The committee adjourned.)