THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Wednesday, June 12, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 4:15 p.m. [ET] to examine Bill C-58, An Act to amend the Canada Labour Code and the Industrial Relations Board Regulations, 2012.
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: My name is Ratna Omidvar, and I am a senator from Ontario and the chair of the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
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, please ensure that you are seated in a manner that increases the distance between microphones. Please only use the black approved earpiece. The former grey earpiece must no longer be used. Please keep your earpiece away from the microphone at all times. When you are not using your earpiece, please put it face down on the sticker placed on the table for this purpose.
Thank you so much for your cooperation.
Today, we continue our examination 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 like to go around the table and have my colleagues introduce themselves, starting with the deputy chair of the committee, Senator Cordy.
Senator Cordy: Welcome to our committee. My name is Jane Cordy. I’m a senator from Nova Scotia.
[Translation]
Senator Cormier: Good afternoon and welcome to the committee. I am René Cormier from New Brunswick.
[English]
Senator Burey: Sharon Burey, senator for Ontario.
Senator Osler: Gigi Osler, senator for Manitoba.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
[English]
Senator Lankin: Frances Lankin, senator from Ontario.
Senator Seidman: Judith Seidman from Quebec.
Senator Dasko: Donna Dasko, senator from Ontario.
The Chair: Joining us for the first panel, we welcome the following witnesses in person: From the Canadian Chamber of Commerce, we welcome Mr. Robin Guy, Vice-President and Deputy Leader, Government Relations. From the Canadian Federation of Independent Business, we welcome Mr. Jasmin Guénette, Vice-President, National Affairs; and Ms. Christina Santini, Director, National Affairs. From the Canadian Manufacturers and Exporters, we welcome Ryan Greer, Vice‑President, Public Affairs and National Policy. Thank you for joining us today.
I understand that Mr. Guy, Mr. Guénette and Mr. Greer will be making opening remarks. We will begin with you, Mr. Guy. Please go ahead — you’ll have five minutes each, which is strictly monitored.
Robin Guy, Vice-President and Deputy Leader, Government Relations, Canadian Chamber of Commerce: Good afternoon, honourable senators.
On behalf of the Canadian Chamber of Commerce, our 400 chambers and boards of trade and approximately 200,000 businesses across the country, thank you for the opportunity to participate in today’s discussion as the committee reviews Bill C-58 — the government’s proposed ban on replacement workers.
Ultimately, the issue relates to who will protect the interests of the small businesses, the workers whose jobs are threatened and the Canadian families who suffer shortages or higher costs as a result of labour disruptions.
Bill C-58 is a threat not only to businesses and entrepreneurs, but also to the millions of Canadians who rely on vital services provided by companies operating in the federally regulated sector. As a result, the Canadian Chamber of Commerce has grave concerns with regard to this legislation.
In the fourth quarter of last year, Canada lost 926,400 hours to labour disputes. To put that into context, it’s the most in any quarter of the last 18 years. In fact, in a recent Scotiabank report, it stated that Canada is losing more hours of work to striking workers than it lost at any time during the pandemic. All signs indicate that more labour unrest is forthcoming.
The government’s discussion paper on anti-replacement worker legislation stated:
The majority of these studies suggest that when a province prohibits replacement workers, this is associated with more frequent strikes and lockouts . . . .
If that research is correct, the ban could harm the economy by subjecting Canada’s federally regulated telecommunications and transportation infrastructure to even more frequent and lengthy disruptions.
Replacement workers allow organizations in rail, ports, telecom and air to sustain a basic level of “lights on” continuity that preserves critical services for Canadians. These workers are an essential backstop for our economy, able to step in on a temporary basis — in the interests of Canadians — until a work stoppage ends.
There are serious ramifications for all Canadians if we prohibit these workers from keeping those lights on. Outages to our telecommunications infrastructure, which we all count on to be fast and reliable, are often resolved without issue, but, during a strike, replacement workers would not be able to fix problems. Small businesses, including coffee shops or restaurants, would lose their ability to process payments, while Canadians wouldn’t be able to reach loved ones.
The Chair: I must apologize for interrupting you. Please slow down a little so that our interpreters can keep pace with you. Thank you.
Mr. Guy: Consider as well that Canadians across the country rely on commuter public transit to get where they’re going, including many who rely on rail service to get to and from work each day. Approximately 70 million passengers use rail each year, including along our biggest corridors in the Greater Toronto, Montreal and Vancouver areas. During a rail strike, without replacement workers, we could not ensure that trains continue to move on a reliable schedule. Tens of thousands of Canadians would be forced to find alternative ways to get where they need to go.
Air travel would also be significantly impacted, especially in the many communities that can only be accessed by plane. If pilots, baggage handlers or the workers who fuel planes were to go on strike, replacement workers would not be able to ensure Canadians could keep moving. Canadians going on vacation would need to cancel their trips, workers wouldn’t be able to get home and Canadians in fly-in communities would be cut off. Simply put, there’s no need or benefit from banning the temporary use of replacement workers.
The role of the government should be to defend the public interest, not to promote the interests of one of the parties in a strike. Canada’s long-established collective bargaining system has been carefully crafted to ensure employers and unions reach agreements at the bargaining table. This new legislation would tip the balance of power and potentially inflict severe economic consequences on Canadian communities, businesses and workers.
While the Canadian Chamber of Commerce fundamentally does not support Bill C-58, if senators do support, we would encourage to consider amending this legislation. At a minimum, we would recommend that senators include an exemption for using replacement workers in instances that are in the national economic interest to the country. We would also recommend senators amend the proposed legislation to begin at the notice of dispute rather than the notice to bargain. To find the right balance in Bill C-58 and to ensure critical infrastructure continues to operate, the Senate should remove restrictions on transferring employees between workplaces. Additionally, we would urge senators to reverse amendments on its enforcement date to 18 months to allow for its proper implementation.
As the Minister of Labour stated, our credibility as a trading nation depends on the stable operation of our supply chains. We must do everything we can to preserve that stability. We couldn’t agree more; however, this bill will do the opposite.
Thank you again for the opportunity. I look forward to answering your questions.
The Chair: Thank you very much, Mr. Guy. We will move on to Mr. Guénette.
[Translation]
Jasmin Guénette, Vice-President, National Affairs, Canadian Federation of Independent Business: Good afternoon. My name is Jasmin Guénette, Vice-President of National Affairs at the Canadian Federation of Independent Business, or CFIB. With me is my colleague Christina Santini, Director of National Affairs.
We would like to thank the committee for inviting us. My colleague and I will share our comments and then answer your questions.
The CFIB represents 97,000 small and medium-sized enterprises, or SMEs, in every sector of the economy and from every region in the country.
We are concerned that Bill C-58 will lead to an increasing number of strikes and therefore more major disruptions in the supply chain.
British Columbia and Quebec already have laws on using replacement workers. They have seen more strikes than most other provinces, including in federally regulated private businesses.
Canadian SMEs are worried about the harmful effect this bill could have on their businesses, the people they employ and the customers they serve. Keep in mind that no one represents or defends the interests of SMEs and their employees at bargaining tables in large federal industries.
Strikes have negative effects on the economy that are disproportionate to the benefits that a union could potentially gain. During federal infrastructure strikes, too many SMEs lose sales and inventory, pay penalties, and scale down production and working hours.
That is why an in-depth analysis of Bill C-58 is essential for getting a better handle on how it could impact the economy. There is a reason all similar bills have been defeated in the past: It is simply not worth it.
[English]
Christina Santini, Director, National Affairs, Canadian Federation of Independent Business: Overall, 73% of our members with an opinion said that they would not support a ban on replacement workers, and 92% supported having federally regulated workplaces that are instrumental to the supply chain be defined as essential service providers.
Thus, overall, the Canadian Federation of Independent Business, or CFIB, opposes the adoption of the bill, and we continue to recommend that workers instrumental to the supply chain — such as ports, railways and interprovincial trucking — be deemed essential and referred to binding arbitration.
That being said, the bill needs to be thoroughly reviewed and discussed without partisan politics at play. As the supply chain does affect everyone, all interested stakeholders and members of the public should be engaged in open consultations on the impacts of a possible work stoppage on public health, on security and on the economy as a whole. An independent, third-party evaluation of the costs and the impacts of a work stoppage should be required before they are allowed to happen. A stronger assessment of the impacts of a work stoppage needs to be built into the legislation.
We would suggest that the committee consider amending proposed section 87.4(2) of the Canada Labour Code in the bill to provide the employer and union with 60 days to enter into a supply of service agreement — not 15 — and to build in a requirement for open and public consultations of Canadian small- and medium-sized enterprises, as well as the people they employ and the communities they serve, as it’s not just the two people at the table who know what the impacts will be.
Lastly, we would note that the minister said that the bill needed 18 months to be implemented after receiving Royal Assent. Another potential amendment that this committee could make would be to bring back the 18-month implementation period.
We thank you for your attention, and we remain available to answer questions.
The Chair: Thank you very much. Mr. Greer, please go ahead.
Ryan Greer, Vice-President, Public Affairs and National Policy, Canadian Manufacturers and Exporters: Thank you for having me here today on behalf of Canadian Manufacturers and Exporters, or CME. CME has been the voice of Canada’s industrial economy since 1871, advocating on behalf of manufacturers and helping them to grow to improve the well‑being of their workers and the communities in which they operate. CME is pleased to be here, just as we were pleased to appear before members of Parliament to share our perspectives on Bill C-58.
Minister O’Regan has stated that Bill C-58 is “. . . one of the most significant changes to federal collective bargaining that Canada has ever seen . . . .” This significant change will have significant impacts on the critical supply chains that Canada’s small, medium and large manufacturers rely on.
Collective bargaining is an important part of a fair and functioning economy. However, there is a fundamental difference between a work stoppage at a port or railway and most other public or private sector organizations. The interconnected nature of modern manufacturing and logistics means that disruptions in these parts of the supply chain reverberate through the entire economy.
When labour action stops the movement of goods, it imposes harm on manufacturers and their workers in communities that are often hundreds or even thousands of kilometres away. That is neither fair nor functional.
This significant change is also ill-timed. Last year, Canadian manufacturers paid a heavy price for the stoppages at the B.C. ports and the St. Lawrence Seaway. This summer, our members are, at great cost, navigating labour uncertainty at both of Canada’s Class I railways, the Port of Montreal and, most recently, the Canada Border Services Agency.
The impacts on manufacturers are more than just cost increases, production cuts, reduced hours or layoffs, and reputational damage when goods stop moving. Just the threat of disruptions can lead to delaying investments, hiring or other decisions when companies are facing uncertainty about their ability to access inputs and get their products to customers.
Last month, CME surveyed over 225 members from coast to coast to coast regarding the potential impacts of a Canada-wide rail stoppage. Two thirds of manufacturers indicated a strike would have significant or severe impacts on their operations, and many were already incurring additional costs, as they were taking pre-emptive measures, such as securing alternative modes of transportation and increasing inventory. As one manufacturer put it, “In a challenging market, the last thing a company wants to do is send 300 loyal employees home for a few days, a week or more due to critical materials not arriving on time at our manufacturing facilities.” Additionally, nearly 40% of manufacturers indicated that previous strikes have had a significant or severe impact on their company’s reputation with customers.
When we say these labour disruptions are harming Canada’s reputation as a reliable trading partner, that 40% figure is what we’re referring to. Countries don’t actually trade with each other; companies do. These disruptions are impacting the global reputation of Canada’s manufacturers.
In this environment, manufacturers are looking to parliamentarians to acknowledge that these disruptions are a problem, and to show a genuine interest and commitment to trying to address them. Instead, Parliament is contemplating legislation that, in our view, will compound these supply chain problems. Furthermore, not a single concern or suggestion raised by employer groups has been reflected in the amended bill that is now before you.
I hope this helps you understand why many manufacturers are feeling vulnerable and frustrated. As your committee considers the bill, CME recommends two simple amendments. The first is to add a five-year review clause to Bill C-58 so that the government can assess the impacts and amend the legislation if, and as, necessary. Impact assessments and evaluations are legislative best practices that are well suited to this bill.
To reiterate, Minister O’Regan asserted that Bill C-58 is one of the most significant changes to federal collective bargaining that Canada has ever seen. By this measure, including a review clause is not just prudent and responsible, but also necessary.
As you are hearing, there’s a sharp divergence of views as to what the impacts of this legislation will be on the services that Canadians and manufacturers rely upon. Some witnesses have asserted, despite studies to the contrary, that this significant change will not increase the incidence or length of labour disruptions. A reasonable response to the divergence of opinions that is before you would be to add a review clause so that all parliamentarians, unions, business representatives and other stakeholders will have an opportunity to review an evidence‑based understanding of Bill C-58’s impacts after it has been in force for five years.
Our second recommendation, to echo my colleagues, is to change the coming-into-force date back to 18 months. As CFIB noted, Minister O’Regan has said quite clearly that the Canada Industrial Relations Board needs this time to prepare. It would be irresponsible not to give it to them.
To close, at this moment, Canadian manufacturers are facing serious questions about the stability and reliability of Canadian supply chains. In our view, Bill C-58 creates more questions, some of which could be answered by the sensible step of adding a review clause to this bill.
Thank you, and I look forward to your questions.
The Chair: Thank you very much.
Colleagues, we’ll go to questions. You have four minutes per question, which includes the question and the answer.
I have a question, and I will only ask it of Mr. Guy in the interests of time. You noted that, as a result of this legislation, we would likely see more strikes, longer strikes and more frequent strikes, but do you not believe that a ban on replacement workers would actually be an incentive for employers to bargain in good faith and resolve disputes in a more expeditious manner?
Mr. Guy: When I read the government’s discussion paper on the issue, that’s where the information that I see is coming from in terms of it stating, “The majority of these studies suggest that when a province prohibits . . . .” — this is in locations where they do have a ban, and you see more frequent, longer strikes. It’s not me saying that; it’s the government’s own paper. It’s experts from the academic community.
So, no, I trust the government’s discussion paper saying that this would lead to more strikes and more frequent strikes.
The Chair: We’re going to explore that further, I’m sure.
Senator Cordy: Thank you all so much for being here, and for your well-prepared and concise presentations.
For my first question, I’ll start with Mr. Greer. We heard yesterday from Mr. Rafael Gomez, Director of the Centre for Industrial Relations and Human Resources at the University of Toronto. He said you have to be careful about a piece of legislation like this that might change the equilibrium in the labour relations system. He also cited a study by one of his PhD students who looked at a 20-year window, where 98.6% of labour negotiations never ended up with a strike, meaning that the likelihood of a strike happening is 1.4% of the time.
We also heard from Bea Bruske, President of the Canadian Labour Congress. She said the use of work stoppages is reported to both sides in a contract negotiation when they get to the bargaining table, but when employers are allowed to use — and I’m using her word — “scabs,” it puts a thumb on the scale in favour of the employer.
We’ve been studying the bill and listening to panellists coming in with different opinions on what works and doesn’t work with the bill. Would this bill not bring equilibrium to labour relations by removing “the thumb from the scale”? Is there equality when businesses are allowed to bring in replacement workers?
Mr. Greer: Thank you so much for the question.
The figure you cited of 98% or so of collective bargaining not resulting in a strike, I think, answers part of your question, which is that this bill is a solution in search of a problem. There is a carefully calculated equilibrium that exists in the collective bargaining system. As the minister has asserted, this is the most significant change that has ever been brought to it. I think that’s why you’re hearing some concern from our members.
I’ll be perfectly blunt: If our members saw some evidence or believed this would, in fact, reduce the incidence or length of these disruptions, they would be demanding that we come here and speak in favour of the bill. We haven’t seen that evidence presented to the House committee. I haven’t seen it presented here. There have been some assertions.
There are some studies that Mr. Guy mentioned that are in the federal consultation which say the experiences in Quebec and British Columbia have proven otherwise: It has increased these disruptions.
Our concern is that a significant change of this nature will, in fact, result in more. That is why we’re recommending that a review clause would actually be a fairly sensible inclusion in this bill. There is a strong divergence of opinions, and, ultimately, with a change this substantive, it would be prudent for the government and Parliament to look at impacts five years on to assess whether it’s changing the incidence at all and assess whether the legislation is fit for service, or if it needs to be amended or otherwise adjusted.
Senator Cordy: Mr. Guénette, do you have anything to add to that?
[Translation]
Mr. Guénette: I will repeat what my colleague said: We are very worried about the consequences this bill could have on the frequency of strikes. Our members are very worried. The SMEs we represent often suffer the collateral damage of this type of labour dispute. They do not receive the merchandise they were supposed to. They lose sales and pay financial penalties. It would be a shame to introduce a bill that would ultimately further disrupt the supply chain and the hard work that SME owners do every day.
[English]
Mr. Guy: If you take a look at the number of hours of workers striking in B.C. and Quebec, they are significantly higher than the country average, so I would say it’s the complete opposite to what you are quoting there. This is actually putting the thumb on the scale in favour of one party, and I would suggest that one party would be the union.
Senator Seidman: Thank you very much for being with us today.
I must say it’s very disturbing to hear words like “exacerbate our productivity,” “erode our global reputation” and “costly supply chain disruptions that impact the livelihood of Canadians.” I think all of you have said very similar things. That’s disturbing to hear.
I have a couple of questions. The first is on data.
We did hear very different presentations yesterday from academic witnesses who said there is no data to suggest that prohibition of replacement workers would have this impact that you refer to — in other words, increasing the frequency of strikes, as well as the types and length of strikes.
Do you have data, first of all, on the frequency of the use of replacement workers in strikes by federally regulated industries? Do you have information or data on the types of workers that are used to replace striking workers? Are they line workers inside or outside the company, or outside the province? That is my first question on data.
Second, do you have empirical evidence on the effects of strikes? You are talking a lot in general terms. You spoke about the Quebec study, Mr. Guy. There are cause-and-effect relationships, and you cannot say necessarily that because of Quebec’s laws, they have more strikes. There are a number of intervening factors there. It may be a correlation, but not a cause and effect. I’m putting all of that on the table and asking you — I will start with you, Mr. Guy — to help me understand what leads you to make these declarations.
Mr. Guy: The one report that I alluded to in my opening remarks was the Scotiabank report. I’m happy to forward that.
Subsequently, the Canadian Chamber’s Business Data Lab did a little bit of a review in terms of the data that is publicly available in order to come up with the 18-year stat that I quoted in my opening statement. That is the data we are using. I am more than happy to pass that along to senators through the clerk after this meeting.
Senator Seidman: Do you have actual numbers on the frequency of the use of replacement workers?
Mr. Guy: The actual frequency of replacement workers is challenging given the definition in Quebec and B.C. versus what is being proposed. It is a bit different, so, no, I do not necessarily have that number. It is more so just the hours lost.
Senator Seidman: Do we have data on if the workers are typically internal or external to the company? Do the workers live inside or outside the province? Who are the replacement workers? Do we have data on that?
Mr. Guy: Yes. The one we tend to hear more is on the rail side. For example, on the rail side of things, managers are provided basic training on how to keep the trains moving. That’s probably the best example I could give in terms of the one that we hear the most.
At the end of the day, a lot of the federally regulated industries that we’re talking about today are not jobs that simply anyone like me or you could go do. I would like to try to use a crane at one point, but it probably would not be the best result.
Senator Seidman: Thank you. I wonder if Mr. Greer —
The Chair: I’m afraid you’re out of time, Senator Seidman. This is an important line of questioning; maybe we can come back to it.
Senator Osler: Thank you to the witnesses for being here today. I have the same question for all of you. Perhaps we will start with CME, then CFIB and then the Canadian Chamber of Commerce.
The committee has heard the concerns regarding Bill C-58 and possible impacts on the domestic economy, the day-to-day life of Canadians and Canadian global competitiveness. We have also heard labour concerns about power imbalances.
How could Bill C-58 balance the need to keep Canada’s economy moving whilst ensuring that workers receive equitable treatment from their employers?
Mr. Greer: Thank you. It is a great question. In our view, there is a balance that exists in the system right now. Most collective bargaining does not result in strikes. Employers and unions alike want nothing more than to reach a deal at the negotiating table, and a strike or a lockout, or any other stoppage, is often devastating for workers and their families, just as it is for employees, members of the supply chain and workers impacted by that. It is always a last resort.
In our view, the best way to preserve balance with regard to this bill is to move with extreme caution. It is alarming when we hear the minister talking about this being the biggest change in Canadian history with regard to federal labour relations. That is why so many of our members — who are already in the midst of recovering from and preparing for future stoppages — get nervous when they hear that kind of language.
They are looking for continuity and stability. They recognize the importance of collective bargaining, but also recognize that these critical supply chain enablers are completely different than a private or public service that may have a much smaller sphere of influence, whereas we are talking about small and medium‑sized manufacturers — which are hundreds of thousands of kilometres away with no control over the situation — that are suddenly sending employees home or shutting down production, certainly losing revenue and incurring other costs.
Moving with caution when it comes to changes this big would be our view.
Then, as I mentioned in my remarks, we’re also not oblivious to the fact that there is a lot of political support for this bill. It will pass and receive Royal Assent at some point. That is why we believe a review clause would be a fair and appropriate way to examine exactly what the impacts are, and make sure that we can calibrate the legislation and its impacts on Canada’s overall collective bargaining regime to ensure we maintain a balance that should exist.
Ms. Santini: Thank you. There is already a certain level of balance if the two parties can reach a deal at the table over 96% of the time. The key question is the issue that this bill is truly trying to address and its key purpose. In terms of responsibility, it’s about ensuring that the department has enough time to implement it — as it stated that it would — and, from our perspective, trying to build in certain accountabilities for the two parties at the table to take into consideration the whole economy. That is why we’re suggesting and recommending that section 87.4 of the code be revisited to build in that consultation requirement.
Recently, the Canada Industrial Relations Board did a consultation on the impacts of a strike for the CN and CPKC rail lines. They provided stakeholders with one week to provide their input. I still had some members submitting their stories a couple of weeks later. Fifteen days for employers and unions to reach an agreement clearly does not allow them time.
[Translation]
Senator Petitclerc: Thank you to everyone for being here. Ms. Santini, I would like to delve deeper into the matter of the 15-day period. I want to make sure I fully understand your position.
You agree with the principle that an agreement must be reached. The law requires that an agreement be reached between the employer and the union to decide which activities are essential, but you disagree with how long the agreement lasts?
Ms. Santini: Or the method.
Senator Petitclerc: Or the method. I will let you explain.
Ms. Santini: Apparently the employer and the unions have agreed and identified what positions and roles are essential in order to maintain the services necessary for public health and safety. But is that really what is in all of the freight cars? Do we really know who is using the airplanes? For what reasons? Why would it be between just two parties?
That is what we are asking you to consider. Since you are reviewing this provision, how can you make sure it is as effective as possible and takes into account the well-being, health and safety of all Canadians, by engaging Canadians?
Senator Petitclerc: So, if I understand correctly, you think that the time period of 15 days — I am asking because what we have heard, in any case, is that it is already being done within 15 days.
Ms. Santini: I am suggesting a longer time period because we would like to impose a consultation between the two parties, meaning that employers and employees would have to begin consultations, hold public consultations.
There will be a strike, or there might be one, and we are in negotiations. What would the impacts be?
Senator Petitclerc: So you would impose an additional consultation for employers and unions in all of those negotiations, and it could take up to 60 days? Is that your position?
Ms. Santini: Yes, that is our suggestion.
Senator Petitclerc: Okay. When I read that, I think there are people on the ground, the employers and unions, who know their workplaces and are able to identify which activities would be essential. That would guard against any interruption in service and productivity if those essential activities are clearly identified as they should be, if I am reading the bill correctly. But you are not confident in that? You’re not sure it will be done that way?
Ms. Santini: From my understanding, it’s not that simple. Let’s say the briefing notes prepared for the transport minister, when there was a strike at the port of Montreal, stated that it was not possible to identify which shipments contained insulin.
Senator Petitclerc: I see, thank you. That is very helpful.
[English]
Senator Lankin: Thank you to all of you for joining us here today. My own background is in negotiations on the union side, although I have been in a number of roles as the employer and I bargained with unions that way. I have a bit of experience on both sides, but I wanted to set out my background.
I would fully expect some of the things you raised. I understand the positions that are being put forward. A couple of them shocked me, so I wanted to touch on some specifics with individuals.
Mr. Guy, you talked about inserting a clause that must give consideration to the national economic interest. Are those the words you used? Did I get that concept right?
Mr. Guy: That is the concept.
Senator Lankin: Sorry, I am old and I’ve been through this a few times, but that immediately brings to mind the debates on — in situations where even when the parties agreed to refer it to arbitration for a different dispute resolution mechanism — the insertion of the words “ability to pay.” There have been flirtations with that. In most places, it has not been brought about or inserted in legislation. Where there have been examples, it didn’t last long because it’s ambiguous. It is very difficult for anyone to adjudicate and bring that decision to the table. Quite quickly, I could see that rolling into a Supreme Court challenge of a provision that undermines the Charter guarantee of the right to strike.
Could you tell me how you would see that actually enacted in this legislation? You suggested an amendment, and I don’t understand how that could be practically done.
Mr. Guy: Yes. What we are saying when we are talking about the national economic interest is, for example, rail or ports. Let’s use the example from last summer because it’s fresh in everybody’s minds. We saw businesses — fertilizer companies — in Saskatchewan having to close down mines.
Senator Lankin: I don’t want to be rude. I do understand the concerns that you’re talking about regarding the supply chain and the impacts. I thought I heard you suggest we needed to amend the legislation to bring in that concept. Could you be more specific about that, and how you would see an adjudication and the decision making of that work — the mechanics as opposed to the philosophy of it?
Mr. Guy: Again, it becomes an issue of the national economic interest. If there are companies having to close their doors, I would suggest that is in the national economic interest, if it is a major Canadian company.
This is what we are saying now: With this current legislation, unfortunately, the economic interest of the country — to move forward, to ensure we have jobs and to ensure we have investment within the country — is actually something that is considered with regard to labour disruption.
Senator Lankin: Thank you. Please thank your president and CEO. I had a good conversation with him in the lead-up to this consideration. I appreciated the time that he provided to me.
Mr. Guénette, you said something and I wonder if you could repeat it to me. You were talking about strikes. It sounded declarative: They’re always bad, and they hurt more than — and I think you said “unions”; you did not refer to workers, which is what this is about — the unions benefit. Could you read that to me again, please?
Mr. Guénette: Of course.
Senator Lankin: Thank you.
Mr. Guénette: In essence, I said that a long strike has harmful consequences for the economy as a whole, which are disproportionate to the benefit that one union can obtain.
The Chair: Senator Lankin, I would love to give you more time as the sponsor, but I have a long line of senators waiting.
Senator Lankin: I understand. Next round, please.
Senator Bernard: I will concede my time to Senator Lankin because I was interested in that question.
Senator Lankin: Thank you, Senator Bernard. I appreciate it.
Mr. Guénette, I don’t want to misinterpret you. You are not saying that CFIB’s position is opposed to the right to strike?
Mr. Guénette: Absolutely not.
Senator Lankin: I wanted to be very clear because of the translation I heard.
Mr. Guénette: No, that’s not what I meant. What I meant is what I said to you.
Senator Lankin: Okay.
Mr. Greer, it’s alluring to pick up on your suggestion about a review period. All legislation should be reviewed, whether it’s included in the legislation or not. Unfortunately, even when it’s in the legislation, reviews often do not happen within the time period. You called for five years, and that was echoed by others at the table.
This is my concern and my experience in collective bargaining and in bargaining contracts: There are occasions where you might get a two-year or three-year contract, but often they are three-year, four-year or five-year contracts, particularly with large employers in the federally regulated sector.
I don’t see how a five-year review clause could be helpful. Are you suggesting simply a review clause? Maybe it is a 10-year review clause? Or is there a reason for the five years that you’re putting forward?
Mr. Greer: No, I don’t think there’s a lot of magic with five. We considered that some of these contract terms are two, three or four years in length. There could perhaps be a middle ground, where a full review might be over a longer period — such as six, seven or eight years — but in an interim review, there will be data and experience, and there should be learnings. We think it is a legislative best practice to review these things. We would support another term of length if that were deemed more suitable by this committee.
Senator Lankin: I’m not attributing this to you, but, in the discussion we’ve heard, it has much more to do with the political forecast. People want to review this legislation. That’s where the pushback comes from on that as well.
For my last question, all of you have discussed reversing the amendment that moved it to a 12-month implementation after Royal Assent in order to go back up to 18 months.
Mr. Greer, it may have been you who made reference to the Canada Industrial Relations Board. The chair of the board was here yesterday and said that with the resources and the commitment that they’ve already started, 12 months is sufficient. The minister was here, too. When I originally talked with him, 18 months was it. There was pushback and the committee wanted change. He said he would not support going to 12 months until the full mediation services and the Canada Industrial Relations Board, at the end of the road, said that it was a reasonable time frame. They’ve concurred with that. Why are all of you suggesting that it should go back to 18 months?
Mr. Greer: As you know, the minister, when first introduced, said 18 months, and he was quite forceful in that regard. The fact that his view on that has changed along with the amendment is, perhaps, a little bit curious.
What worries us the most — to go back to the minister’s original sort of statement — is that this is one of the biggest changes in Canadian federal labour relations history, so caution and prudence are, in our view, more important than what a six-month difference may mean in the overall timeline.
Senator Lankin: Okay, but you do acknowledge that the Canada Industrial Relations Board has now said to us that 12 months is fine?
Mr. Greer: Yes.
Senator Lankin: Thank you.
The Chair: If I could probe a little bit on the 18 or 12 months, we have heard about the Canada Industrial Relations Board being ready, willing and able. What about the time required to undertake the consultation on regulations that must also accompany this process? Do you think it can be done in 12 months?
Mr. Greer: That’s a question for those who will undertake the consultations. In our experience, it’s always possible to do consultations in an expedited manner, but those consultations don’t often meet the expectations of our members and supply chain partners whom we work with because they’re often designed around an outcome or with a timeline in mind, as opposed to a genuine good faith discussion of challenges, opportunities and how to make sure we get something right. I would say that we’ve been burned before on a lot of consultations that are built around timelines instead of getting to the right outcomes.
[Translation]
Senator Cormier: My questions are for Ms. Santini and Mr. Guénette.
Thank you for being here. I am from New Brunswick so I understand some of the issues facing SMEs. SMEs helped build the regions I am from, so I understand that the balance of power can be difficult.
I would like to go back to Senator Petitclerc’s question regarding the additional consultation.
Ms. Santini, I believe you said there should be an additional consultation in the process leading to a strike before the strike is called. So you would like employers and unions to consult.
Can you elaborate? Whom would they consult, and in what regard? Would employers have to consult SMEs?
Ms. Santini: It would be an open and public consultation, similar to what the Canadian Industrial Relations Board did recently with CN and CPKC. They called for an open consultation. A mechanism would of course have to be established to support it, but it would serve to ensure that their analysis of what is essential or a service that cannot be interrupted is complete and that they fully understand the impact of their actions. The analysis or consultation could also inform the government for subsequent actions that could be taken. There are different tools and ways for the government to intervene in a collective bargaining process.
Senator Cormier: To continue, you mentioned a public consultation, but what would the scope, criteria and considerations of that public consultation be? There are two parties, and the world of work is clearly structured between employers and unions. It is an organized structure with two clearly defined parties. What real results could you achieve with that type of consultation?
Ms. Santini: Based on the interpretation of section 87.4, they have to come to an agreement on which positions are essential. They do that in a vacuum because they are only familiar with their own experience and may have a few specific stakeholders. We have not been consulted, other than indirectly through the CIRB. We do nonetheless have information we can share to help them. When will they decide to use that information to identify specific positions? We are not saying that the person in question —
Senator Cormier: I don’t want to interrupt you, but what is the relationship between federally regulated businesses and your businesses?
Ms. Santini: Do you mean as clients or as users? Yes, precisely. That was regarding the supply chain.
Senator Cormier: I have one last question. I don’t want to put you on the spot, but you mentioned partisan politics and I would like to know what you are referring to in this context. In your opinion, what in the bill smacks of partisan politics? The Senate is increasingly independent, so I would like to understand.
Mr. Guénette: It is not so much what is in the bill that seems partisan, but rather the reason it was introduced at this time. In our view, it was introduced now because of the alliance between the Liberals and the NDP. There is a reason that similar bills were not enacted in the past, by either the Liberals or the Conservatives, in 2019 and 2016. A bill such as this one could have a very serious impact on the economy, so each time a similar bill was introduced in the past —
[English]
The Chair: Thank you, Mr. Guénette.
Senator Burey: Thank you so much for being here. I want to follow up on something you said, Mr. Guy, regarding the last quarter having more striking workers. Could you expand on that and what you feel it’s attributed to? We heard in previous testimony from some academics — who had done work for over 40 years — that, overall, even including B.C. and Quebec, there was nothing significant nor anything of note in terms of increasing strikes, but you said that in the last quarter that had occurred. Could you just expand on that? Give me some examples of what you’re talking about in the last quarter.
Mr. Guy: The purpose of providing the stats in terms of both the Scotiabank report number and the fourth quarter number, I think, is to show that businesses are facing a significant amount of disruption within our supply chains. Whether we’re talking about the pandemic when it was impossible to get pieces to lower your blinds, whether we’re talking about disruptions at blockades, or whether we’re talking about the B.C. port strike or the St. Lawrence Seaway port strike, in total, over the last several years, our supply chains have obviously been under serious constraint. The numbers are to show the total number of strike hours within the federal sector, trying to show and paint a picture of the reliability factor being a massive issue for Canadian businesses, both big and small.
Senator Burey: Having your answer now, do you think that this bill could stabilize that? If it’s an incentive to come to an agreement faster, both sides are incentivized. What do you say about that?
Mr. Guy: I’ll quote the government’s discussion paper, where it says that in the provinces that do have a ban on replacement workers, it is accompanied by longer, more frequent strikes. I would point back to the research that we see — that the government is pointing to — which actually states the opposite. It creates more instability than it does stability.
Senator Burey: Thank you for that answer.
I’ll quickly ask about the maintenance of service agreements. All things being equal — the bill is passed, and it was voted on by all parties in the other place — are you currently working on any maintenance of service agreements? What are your industries doing in the eventuality that this bill is passed as is?
Mr. Greer: To be perfectly blunt, our members are contending with a number of potential labour stoppages that are in front of them right now. We’re looking at potential disruption to the Class I rail service. We’ve surveyed our members. They project that if the rail lines stop, it will cost them approximately $247,000 per day in lower revenues.
Senator Burey: I was asking if you were preparing for the bill. Are you doing any preparations?
Mr. Greer: At this point, we’re preparing for potential labour disruptions that are happening this summer. Once the bill is passed, we’ll be working to prepare the best we can for whatever changes and disruptions that may cause.
Senator Burey: Thank you.
Senator Dasko: Thank you to our witnesses.
I’ll be very brief. Excuse me if my questions might have been answered. My first question is to Mr. Guy.
You expressed concern about the inability of workers to be able to move to different locations to deal with essential and emergency services. Yesterday, we had a witness here — Mr. Gary Robertson — who is the senior official with the department. When asked this question directly, he said there would be an ability for companies to move workers, especially to deal with emergency services.
Do you see something quite different? He assured us very specifically about that. I wanted to get your opinion of how you see it.
Mr. Guy: Our members don’t see it that way. There is a lot of concern. The telecommunications industry is the example I would point to in this instance of being concerned. It tends to be more contract workers, for example, who would be used in that sector.
Senator Dasko: You said your members see it that way, but how do you see the bill? Do you see the bill as prohibiting this?
Mr. Guy: Yes, we do.
Senator Dasko: So you have a different view from the way the government has interpreted it.
My next question is to Ms. Santini.
You made a comment about partisan politics at work here. I wondered what you meant by that because, of course, all the parties have agreed to this legislation. Where is the partisan angle, or am I missing something in what you were alluding to?
Also, I have a larger question: Does the business community have no friends left in Ottawa?
The Chair: The first question was answered. Let’s answer the second question.
Ms. Santini: With regard to the second question, I think you’ll have to ask other people in Ottawa to see if we don’t have any more friends.
Senator Dasko: I’m asking you.
Ms. Santini: With regard to the first question, indeed, it was answered. However, I would like to point to a concrete example.
When the consultations were launched, before Bill C-58 was presented up front, they presented something that was already cooked. They presented a consultation on what they were going to propose 100% — almost like it was a regulation — versus this: “Hey, is there an issue here? What would be your thoughts, comments or potential solutions?” They said to us, “This is what it is. What are your thoughts on what it’s going to be?”
That’s not an open and engaged consultation. It was clearly outlined in an agreement with regard to the maintenance of government, and that’s what we saw being put in front for consultation, and that’s what we’re seeing in the House of Commons and now before you.
Senator Dasko: Mr. Guy, did you have a comment?
The Chair: I’m sorry, Senator Dasko. We’re out of time.
Thank you so much to our witnesses for appearing in person today.
For our next panel, we welcome the following witnesses joining us by video conference: From the Quebec Employers’ Council, we welcome Norma Kozhaya, Vice-President of Research and Chief Economist; and Sandra De Cicco, Senior Director of Labour, Health and Legal Affairs. From Federally Regulated Employers – Transportation and Communications, we welcome Derrick Hynes, President and Chief Executive Officer. From the Canadian Federation of Agriculture, we welcome Todd Lewis, First Vice-President; and Brodie Berrigan, Director, Government Relations and Farm Policy.
I understand that Ms. Kozhaya, Mr. Hynes and Mr. Lewis have opening remarks. We’ll begin with Ms. Kozhaya. You have five minutes, please, which is being strictly monitored today.
[Translation]
Norma Kozhaya, Vice-President, Research and Chief Economist, Quebec Employers’ Council: Good evening, honourable senators.
I am Norma Kozhaya, Vice-President, Research and Chief Economist, with the Quebec Employers’ Council. With me today is Sandra De Cicco, Director, Labour, Health and Legal Affairs.
The Quebec Employers’ Council is made up of businesses and sectoral associations in all sectors of the economy and in all regions of Quebec, and it directly and indirectly represents the interests of more than 70,000 employers of all sizes, in the private sector and the parapublic sector alike.
The members of the Quebec Employers’ Council include multiple federally regulated stakeholders, key players in telecommunications, logistics chains, and in the rail, air and shipping sectors, as well as SMEs that depend on supply chains to deliver essential goods and necessary services to the public.
Thank you for this opportunity to present the position of the Quebec Employers’ Council on Bill C-58.
The Quebec Employers’ Council strongly opposes the bill under consideration. The Canada Labour Code as it stands effectively protects the right to strike. The Quebec Employers’ Council is of the opinion that prohibiting employers from using replacement workers during a strike could in fact destabilize the current balance of power in the sectors of the Canadian economy that are the most sensitive and critical.
The Quebec Employers’ Council also wishes to point out that Quebec’s experience shows that there is no benefit to banning replacement workers, either in reducing the number or duration of strikes — the result is in fact the opposite.
Further, Professor Hebdon drew the same conclusions yesterday.
Shutting down operations in federally regulated sectors compromises the ability to maintain services that are considered essential or necessary for public health and safety and for Canada’s economic security.
While the Quebec Employers’ Council is firmly opposed to introducing a ban on replacement workers, it maintains that such a ban must be limited to employees hired after the notice to bargain was issued. In the opinion of the Quebec Employers’ Council, any person who is already with the employer when the notice to bargain is issued and the person replacing that person should be able to do the work of employees during a work stoppage.
The Quebec Employers’ Council further maintains, given the importance of federally regulated sectors, that the employer should have the right to use any replacement worker during a work stoppage if the provision of a good or service is necessary to the public interest or economic interest of Canada, even if not necessarily essential.
The Quebec Employers’ Council also deplores the fact that only minor changes were made to the process for maintaining essential activities, whereas significant improvements to the process were warranted, especially since the government intends to broaden the ban on replacement workers.
The Quebec Employers’ Council maintains that the issue of maintaining essential services should not be the responsibility of the Canadian Industrial Relations Board, but rather should be the responsibility of an authority with experience and recognized expertise in the public interest, specifically, the Federal Court.
In addition to the authority that should be responsible for the issue of essential services, the Quebec Employers’ Council maintains that the procedural rules for the instruction of such matters should ensure their effectiveness and speed. That could be an accelerated procedure, for example, similar to the one for interim injunction applications.
Finally, the Quebec Employers’ Council is of the opinion that the government should enact legislation to determine the timeframe within which decisions on maintaining operations must be made, and require that reasons for any extension must be given in writing. Relying on a specialized body with relevant experience and expertise would significantly reduce delays and improve the process overall.
In closing, we hope that these comments and recommendations will help you, as legislators, to make the right decisions in the interest of our society.
Thank you for your attention. We are available for questions and further discussion.
[English]
The Chair: Thank you very much, Ms. Kozhaya. Next to present is Mr. Hynes. Please go ahead.
Derrick Hynes, President and Chief Executive Officer, Federally Regulated Employers – Transportation and Communications: Thank you, chair.
Federally Regulated Employers – Transportation and Communications, or FETCO, is an association representing most of Canada’s major airlines, courier companies, marine ports, railways, telecom firms and others in their capacity as employers. FETCO members employ nearly two thirds of all the workers in the federally regulated private sector. Our members are overwhelmingly unionized, with decades of productive collective bargaining with most major private sector unions.
A lot has been said over these past few months related to Bill C-58, which will effectively ban the use of replacement workers during a work stoppage. Unfortunately, much of what has been said to date is simply not rooted in reality. This debate needs to be focused on documented facts. Analysis to date suggests two things: Replacement worker bans result in more strikes and longer strikes. These bans incentivize strike activity and discourage collective bargaining.
Those most affected by replacement worker bans are everyday Canadians. When major employers — like airlines, ports, railways and telecom — are shut down, supply chains break. Shipments are halted. Packages are not delivered. Passengers are stranded. Internet and cable services are shut down. Banking stops. Critical services provided to Canadians are paused.
To date, neither the government nor any union, nor any academic, has presented a shred of documented evidence that demonstrates how this actually improves the collective bargaining process. In fact, the Minister of Labour reminds us that 96% of all bargaining ends without a work stoppage. This bill is a solution looking for a problem to solve.
Balance exists in this system. Nothing is gained that can be demonstrably proven by banning replacement workers. Government should not be introducing legislation that is sure to add instability to already vulnerable supply chains.
We need to set the record straight on what a replacement worker is. These are not scores of random people hired off the street. They are typically employees of the company — such as managers or supervisors — or contractors with whom the employer has a pre-existing relationship. These are temporary measures.
Replacement workers provide a basic level of service until the strike ends. This is the collective bargaining system in action. It is not a flaw but an actual design feature. When the strike ends, all unionized employees go back to work, and temporary replacement workers leave.
What is sometimes hidden in this debate is the fact that a replacement worker ban gives small bargaining units in large organizations an ability to shut down the entire organization. This can happen at an airline or an airport, a railway, a marine port or in telecom. The extended supply chain impacts can be massive.
Federal elected officials have known for decades that this is a bad idea. It has come up at least a dozen times in the past 15 years, but it has always been rejected by parliamentarians. There is nothing in this bill, or in the process that led to it, that makes it any different from past efforts. Public policy should be based on documented facts. This is not that.
Our respectful request to you today is to amend this bill before it wreaks the havoc I noted earlier. We believe this bill requires seven key amendments. I will focus on two that I believe are more pressing based on recent events at the House of Commons committee.
First, the bill should be amended back to its original coming-into-force date of 18 months. In their respective comments to the parliamentary committees, the Minister of Labour and the Chair of the Canada Industrial Relations Board noted that Bill C-58 will result in a massive change management exercise that requires substantial time to undertake.
Second, in the bill, proposed section 94(4) of the Canada Labour Code should be amended by deleting paragraph (c). This new restriction will pose serious risks to parts of the country where a critical service — for example, telecom — will be severely interrupted if an employer has no management employees in that location to provide critical work. This risk will be higher in rural and remote parts of Canada.
In the interests of time, I will leave my other amendments. Perhaps we can discuss them in the question-and-answer period. Thank you for your time. I appreciate the opportunity to do so.
The Chair: Thank you very much.
Todd Lewis, First Vice-President, Canadian Federation of Agriculture: Good afternoon, everyone — I guess it is evening in Ottawa, or getting awfully close to it.
Hello, and thank you for the opportunity to speak today. I’m a grain, lentil and canola farmer in Gray, Saskatchewan, which is just south of Regina.
I’m here today representing the Canadian Federation of Agriculture, the largest general farm organization in Canada. We represent over 190,000 farmers and farm families across Canada who are the heart of the Canadian agri-food system responsible for around 7% of Canada’s GDP.
Canada is an exporting nation. The flow of goods generated from trade is intimately tied to our standard of living.
Canadian farmers exported $92 billion worth of agriculture and agri-food products to trade partners around the world in 2022. These trading partners purchase Canadian agricultural products due to our reputation as a reliable supplier of high‑quality products. However, if these products are unable to reach overseas customers due to a prolonged labour disruption, this has a direct impact on Canadian farmers and on our reputation as a reliable supplier.
For example, as noted in the Final Report of The National Supply Chain Task Force 2022, “Labour disputes and strikes significantly impact Canada’s supply chains, including the ability to remain competitive and reliable.”
The task force report went on to say:
The simple threat of a dispute or strike causes uncertainty over the reliability of Canadian services and ultimately benefits a competitor that receives traffic originally intended for Canada, reducing our competitive advantage. . . .
Labour disruptions have had a real impact on Canadian businesses. For example, rotating strikes at the Port of Montreal in 2020 led to 21 container ships being diverted, and cost businesses an estimated $600 million in lost sales.
Let me be clear: We recognize the importance of free and fair collective bargaining in Canada, and we support the rights of unionized workers to negotiate fairly with their employers. However, we believe that the movement of agriculture and agri‑food products should be viewed as necessary, and certain exemptions must be made to the proposed legislation — Bill C-58 — to recognize the importance of maintaining the movement of these goods during labour disputes.
In 1998, amendments were made to the Canada Labour Code, sponsored by then-Minister of Labour Lawrence MacAulay, which prohibited the cessation of work among longshore workers loading grain vessels during a strike or lockout. However, these amendments only apply to bulk grain movement, and do not apply to container movement of grain or perishable goods.
Prohibiting the use of replacement workers in federally regulated workplaces during a strike or lockout could cripple Canada’s food supply chains.
Since the railways have a dual monopoly over the shipment of grain in Canada, producers and shippers have limited options — in most cases, only one option — to maintain service during a labour disruption. As a result, we recommend that the employers’ ability to reassign existing non-unionized workers within a company, including management staff, be maintained when necessary to maintain Canada’s domestic food and feed supply.
Our hope would be that management could still provide critical functions during such stoppages to allow the flow of agricultural goods. In our view, this would maintain the integrity of the collective bargaining process by preventing a return to full capacity while, at the same time, providing a means of keeping some minimal level of service and flow of agricultural goods where there are no other options for Canadian shippers.
The agriculture sector has faced seven work stoppages over the past six years alone, with two more on the immediate horizon. Prolonged work stoppages not only threaten our international reputation, but also have real impacts on Canadian farmers and the Canadian economy.
In conclusion, I want to thank you for this opportunity to speak today. I would be happy to answer any questions you might have.
The Chair: Thank you, Mr. Lewis.
Colleagues, we will proceed to questions — four minutes each for the question and the answer. The first question will go to the sponsor of the bill, Senator Lankin.
Senator Lankin: Thank you for appearing before the committee today. We truly appreciate hearing your perspectives.
There is no doubt that there are clear, defined perspectives on both sides of this issue. The committee has been hearing that. I wish to declare that I come from a labour background and I was a union negotiator. But I also have been an employer in a number of situations and I bargained with unions, so I have some concept of this. Although, again, to be fair, most of my experience is the public sector and broader public sector. You bring different considerations to the table, and I have been listening carefully.
My first question is to Ms. Kozhaya. You said something that made me lift my head up. I thought, “Wow. I have not heard that before.” You suggested that disputes should essentially be referred to the courts. In Canada, we have had a long history in many sectors, but particularly in labour relations, of creating a particular, specialized expertise in adjudication and dispute resolution and determination, as well as arbitration decisions, et cetera, in administrative law tribunals.
The reason for that, first of all, is there has been a huge effort over the years to take things out of the courts that don’t necessarily need to be there and, second, to have specialized administrative law tribunals that build up a particular expertise that can evolve over time as conditions change and as precedents continue to evolve.
I was shocked by that suggestion. Can you elaborate on why you think that is an appropriate recommendation, and how you would see that incorporated in a bill such as this? Thank you.
[Translation]
Ms. Kozhaya: I will ask my colleague Ms. De Cicco to complete my answer. Whether we are talking about key, strategic services for the Canadian economy, telecommunications or transportation, the public interest must be taken into consideration. It is not addressed because employers and employees have their own interests and are not necessarily motivated by the public interest. Our comments are partly based on Quebec’s labour law tribunal, the Tribunal administratif du travail, which is responsible for essential services during strikes. If I may, I will ask my colleague to add something.
Sandra De Cicco, Director, Labour, Health and Legal Affairs, Quebec Employers’ Council: The Canada Industrial Relations Board (CIRB) specializes in granting and managing accreditation. Its board is made up of the chairperson, a vice‑chairperson, a union representative and an employer representative. Experience has shown that they give priority to the right to association over fundamental rights, such as the right to life, freedom and personal safety. The Supreme Court has already ruled that fundamental rights must take precedence. That is why we maintain that a tribunal specializing in the public interest should be responsible for all matters relating to requests for essential services.
[English]
Senator Lankin: Thank you. I do not know if that went to the heart of my question, but I may not have articulated it well enough.
Let me turn then to Mr. Hynes —
The Chair: You are going to have to save that second question, Senator Lankin. I hope to get back to you.
Colleagues, please proceed quickly to questions.
[Translation]
Senator Carignan: I will continue on this topic because that’s the point made by FETCO, the Federally Regulated Employers in Transportation and Communications Organization. My understanding is that the possibility of negotiating conditions before a strike — when the parties have to agree on essential services or functions that must be maintained to protect public health and safety — that must be negotiated before a strike is called.
If there is disagreement between the parties, the board can decide. That addressed a concern I had when I heard about the bill. I thought that was a way to ensure that essential services are provided, whether in telecommunications, in the centres you mentioned where people might be isolated, where there might be safety issues, or in the transportation sector where products might deteriorate, such as explosives, petroleum and so forth. That does not appear to satisfy your concerns. From what I understood from the lawyer, you are saying that because the tribunal does not specialize in essential services, it would not have the required expertise to make the right decisions in such situations?
Ms. De Cicco: That does not prevent bargaining proactively. What we are saying is that, whether there is an agreement or not, the whole concept of essential services in the public interest should be referred to a specialized tribunal. In this case, what better specialized tribunal could there be than the Federal Court, which already hears matters of public interest, to rule on matters as important as essential services, which are in fact very critical services?
Senator Carignan: Yes, but we can agree that when employers bargain with the telecommunications service or transportation service to maintain positions that are essential for the protection of life, health and safety and all other criteria, they will push hard to have qualified workers who can do the work, because there are specialized workers. An airplane pilot cannot be replaced with just any employee. So you are not confident in their ability to convince employers when there is a disagreement in a situation such as that? The unions do nonetheless have some responsibility in that regard, a social responsibility. They are Canadians, human beings.
Ms. De Cicco: If there is in fact no agreement on essential services for purely economic issues related to the parties’ interests, we maintain that this should be referred to a specialized tribunal.
Senator Carignan: I understand, but you do not have confidence in the CIRB as it is all laid out at present in the framework?
Ms. De Cicco: No, because experience has shown that the CIRB is currently more interested in giving precedence to the right to association, which is a private interest right, as opposed to the fundamental rights to life, freedom and safety, and that is what is at issue here.
Senator Carignan: I understand your position, thank you.
[English]
Senator Lankin: My question is to Mr. Hynes from FETCO. I appreciate you being with us and your presentation.
I want to speak with you about the second of the two amendments that you suggested we look at: deleting proposed section 94(4) that was added in the House of Commons at committee by amendment. There have been discussions around the table and questions from Senator Cordy, Senator Seidman and myself that have referenced discussions with TELUS, for example, which has raised this issue, and you referenced telecom there.
This is about moving employees — managers — who are not a part of the bargaining unit to other work locations where they did not work prior to the beginning of a strike.
You put forward an argument about the risk being higher in rural and remote parts of Canada. I think it is true and there needs to be a differential consideration of rural and northern areas. It has to be fact-based, evidence-based and single example-based, if I can express it that way.
My concern with this proposal is that it doesn’t take into account what the parties already do with respect to negotiations of the maintenance of activities, and, where there is a dispute of this nature about what will be required, it doesn’t take into account the board and its extensive jurisprudence where it has already dealt with issues like this. It seems to me, and I think it has even been admitted by some folks, that this may well get dealt with through that process of negotiating a maintenance of activities agreement and/or dispute resolution through the board, with many steps in between such as mediation and other sorts of things.
I will give you the example of radioisotopes because there are a few doctors around the table at our committee here, and they will all relate to that. At one point in time, the precedent was clear — this was critical and it was affecting a worldwide shortage, and that was declared as an activity that needed to be maintained in the jurisprudence of the board. Following that, a number of years later, when a similar issue came forward, there were alternatives that were available which would not, therefore, require owning radioisotopes. And the board’s jurisprudence changed. They considered that fact. And the board has told us that they consider location, region, rural and all of those things.
Can you tell me why you think that is insufficient in the process that is already set out?
Mr. Hynes: Sure. Thank you for the question. One of the challenges that I see evolving, even in this conversation today, is around the maintenance of activities.
When the minister introduced this bill to ban replacement workers, I think his vision was a revised maintenance of activities process that is made mandatory — when it was previously voluntary — would solve the problems that this bill is going to bring.
We would categorically disagree with that assertion. You spoke earlier of your time working at the bargaining table. I think you will agree with me that maintenance of activities agreements are extraordinarily difficult to negotiate. The threshold that must be met before a service would be required essential is off-the-charts high. This bill actually makes the threshold higher which is why, in the last session, there was some discussion around national economic interests, et cetera.
That is the first issue: We don’t actually think the maintenance of activities is the solution to this problem. But the issue that you raised specifically around this proposed section, which was added at committee in the other place, was that there were some concerns that an employer would shift a wide number of employees from one location to another to essentially get replacement workers through the back door. That is actually not what would be intended here in real terms.
When we talk about remote communities, telecom is a classic example of that. A telecom company does not necessarily have a cadre of managers in small, remote towns in Northern Canada. One could argue that telecom services are vital, but I actually don’t think they would rise to the level of being captured by a maintenance of activities agreement.
The question then becomes —
The Chair: Thank you, Mr. Hynes.
Senator Moodie: Mr. Hynes, you get an opportunity to speak again because I want to ask this: Why 18 months? Why go back to 18 months after Royal Assent for the coming into force? We have heard in some detail from the Canada Industrial Relations Board about the reasons why, as well as what their issues will be, what their needs will be, what changes they will need to put in place and what their resources might be, and that they can do it in 12 months.
What exactly would be the specifics around the 18 months? What do you need the additional time for?
Mr. Hynes: Maybe I’m falling victim to hearing what I want to hear. But this is what I have heard in committee hearings on this bill to date.
I have heard the Minister of Labour at committee, both in the House of Commons and the Senate, quite emphatically state that the reason why he put 18 months in the bill was because he felt it was required based on the consultation he did with officials within the government. He actually repeated that in the session he held with this committee yesterday.
What I heard the Chair of the Canada Industrial Relations Board state in less emphatic terms was that a long runway is required for proper implementation of this bill. I did not hear her say 12 months is adequate. I heard her say this is an extraordinary amount of change. Significant resources will be required that have not yet necessarily been committed to in any documentation that I have seen. This is why we think the bill should revert back to the 18 months.
It would be a disservice to Canadians and to the system of labour relations if this significant change is introduced to this system and the time is not required to allow government to be prepared to administer it properly, because chaos will emerge if we get to the 12-month mark and they are not ready. Every collective bargaining situation now has to negotiate a maintenance of activities agreement, which has never existed before. The workload on the Canada Industrial Relations Board is going to be enormous, and we think there should be a runway to allow them to prepare for that.
Senator Moodie: I want to encourage you to listen to her testimony again, because she was asked that question directly and she was very clear in her response.
The other side of this would be to ask any — and all — of you if you have had any experiences with the Canada Industrial Relations Board in terms of wait times. Do you agree that there is going to be an issue around capacity based on your current experiences with them? Do you think that they are demonstrating an inability to surge appropriately?
Mr. Hynes: Can I answer that?
The Chair: Yes, please.
Senator Moodie: Please do.
Mr. Hynes: Yes, I do think it is going to be challenged. I think the Canada Industrial Relations Board is staffed by extraordinarily competent people and led by an extraordinarily competent chair. But the Canada Industrial Relations Board has been strained for many years with a resource problem.
Not to mention the fact that, in the last few years, the government has downloaded extraordinary new responsibilities to the board under Part III and the new Part IV of the Canada Labour Code, and will now download more with this change in a way that they have not seen before. I do think there is extraordinary risk that there will be strain to that system; it’s not that they are not competent or capable and not excellent at what they do. But I think there is great risk that they are not going to be prepared to do this work.
[Translation]
Senator Mégie: I think one of you said that the strike at the port of Montreal resulted in $650 million in losses. I would like to know which sector suffered those losses and what types of products were involved.
[English]
Mr. Lewis: Yes. I was the one who mentioned that. But I will defer that to my colleague Mr. Berrigan.
Brodie Berrigan, Director, Government Relations and Farm Policy, Canadian Federation of Agriculture: Thank you for the question, senator. I think the nature of those impacts were really around a lot of agricultural and agri-food goods, including a lot of perishable goods. Some of this information was reported to us through the Canadian Produce Marketing Association.
[Translation]
Senator Mégie: Are there any particular sectors in those various activities that are at greater risk or are more vulnerable when a strike drags on? I don’t know who might like to answer.
[English]
Mr. Lewis: I think certainly in the agriculture and agri-food industries — port strikes, for instance — it is estimated that for every day of a strike, it takes seven days to recover. If we have a 14-day strike or 21-day strike, it can affect shipping for a quarter of our shipping season or more.
When we have backlogs in agriculture, their big systems, especially rail systems, are vulnerable to work stoppages. When they happen, it really blocks up the supply chain, not only for the duration of the strike but also for a number of weeks afterwards.
Mr. Berrigan: If I may jump onto that, if that’s okay, Mr. Lewis and Madam Chair. I just want to correct the record. The reference to $600 million in lost sales was a direct conclusion out of the Government of Canada’s National Supply Chain Task Force report. That was a report that was done a couple of years ago. Within that $600 million, there was an additional — or included — $13 million in lost product and additional port charges and $12 million in food loss from fresh produce lost or spoiled as a result of the 2020 Port of Montreal strike. That was the number that was reported to us from the Canadian Produce Marketing Association; my apologies.
[Translation]
Senator Mégie: Thank you.
[English]
The Chair: Mr. Hynes, I have a question for you. We have heard testimony in previous panels that the availability and deployment of replacement workers prolong certain strike situations — for example, the International Brotherhood of Electrical Workers, or IBEW, strike in British Columbia with LTS Solutions Ltd. Those 200 workers were on strike for three years because they were trying to achieve a first collective bargaining agreement with their employer. The employer was able to function because of the availability of replacement workers. It stands to common sense — for me, at least — that when there’s an availability of replacement workers, strikes will be prolonged because employers can find workers. How do you respond to my common sense conclusion on this matter?
Mr. Hynes: I think your common sense conclusion is logical until you dig into the system. The reality on the ground is the opposite. Are there examples, as you’ve just described, where there are long situations where strikes are prolonged and replacement workers are used? Yes. But I would argue, on the whole, a ban on replacement workers will encourage and incentivize more strike activity.
The point that I think sometimes gets lost in this debate is that there is a big difference between the federally regulated sector and the provincial space in the Canadian economy. These are the organizations that stitch the economy together. They’re all heavily unionized, and a strike is a natural part of the process. I am not suggesting in any way that the right to strike should be removed. It’s a fundamental right under the Canadian Constitution, and it will happen. Fundamentally, we have a system — federally — that is very stable. There is a low incidence of work stoppage activity. We actually believe that this is because of an employer’s ability to use replacement workers. There’s a balance in the system.
There was a comprehensive review done of labour relations under Part I of the Canada Labour Code back in the 1990s, and one of the key takeaways was that balance exists in this system. It works. Why the government would want to make this massive change, as the minister describes it to be, defies logic to us, because it is going to create an imbalance and instability in that system.
The Chair: You don’t agree with the common sense conclusion that the banning of replacement workers will incentivize employers to come to the bargaining table and resolve disputes in a timely, efficient manner so that Canadians can benefit from an economy that is working.
Mr. Hynes: I do not agree with the common sense approach, and the reason is because in the real-world experience of collective bargaining in the federal system — and Mr. Stanford spoke of this yesterday — collective bargaining is a very complex beast, where both parties at the table have levers at their disposal that they pull to try to influence the other party to ultimately get a deal. One of the levers that employers have historically had is the use of replacement workers on a temporary basis to ensure the basics of the business can continue. That has not destabilized collective bargaining in the federal system. The stat is 96% — and the stat earlier was 98% — of collective bargaining ends successfully. We have a system that is working. We don’t know why the government feels the need to disrupt that.
The Chair: My time is running out and I must be fair to my colleagues, but the example I gave you of 200 workers on strike for three years without an agreement being reached flies against the arguments you have made. Please help me out — you have no more time left; I’m sorry.
We will go on to other questions as we have time.
[Translation]
Senator Cormier: My question is for Ms. De Cicco. I want to follow up on the idea of associational rights versus fundamental rights.
I want to make sure I understand correctly given what the bill says. It may just be that I’m not familiar enough with the issue, but the bill provides for three exceptions, and I quote:
(i) threat to the life, health or safety of any person,
(ii) threat of destruction of, or serious damage to, the employer’s property or premises, or
(iii) threat of serious environmental damage affecting the employer’s property or premises;
That means the exceptions do take the public interest into account. Why have fundamental rights not been taken into account in this particular context? As we know, the right to organize and the right to strike are set out in the Canadian Charter of Rights and Freedoms.
Ms. De Cicco: The oft-mentioned fundamental right to life, liberty and security must override the right to organize.
The exceptions you read out from the bill are rather restrictive conditions for proving that a service is essential.
What I was talking about earlier was the experience of the Canadian Industrial Relations Board, which is more focused on granting and overseeing certification as it relates to the right to organize, so those are very different things. The exceptions you cited are actually conditions that have to be met in order to satisfy the definition of an essential service, which is quite onerous. It’s difficult to demonstrate that.
Besides public health and safety, it says that essential services should also take into account economic security and the critical role of supply chain participants.
Senator Cormier: All right. Thank you.
[English]
Senator Dasko: Thank you, witnesses. I want to go back yet again to the issue and the discussion that was generated by Senator Lankin’s earlier questions with respect to essential services — how they are defined, and how they are negotiated.
Mr. Hynes, this is a question that I asked in the last panel, and it has to do with the use of workers in other locations with respect not to essential services, but to emergency services. It was stated quite clearly by the government officials who were here yesterday that companies do have the ability to use workers from other locations to deal with emergency situations. He said that. Those could be situations of climate disaster or floods, or perhaps vandalism, criminal activity or other kinds of emergency situations.
In the earlier panel today, the employers’ representative said, no, it was their complete, clear understanding that they could not use workers from other locations to deal with these situations, whereas yesterday the government officials said clearly that, yes, they could.
I’m trying to ferret out your understanding of this particular situation, and how that might be dealt with at the negotiating table before a strike takes place. I know it’s difficult. You can’t actually predict emergencies like this. In any case, the question stands with regard to maintaining those services in those situations. I hope I’ve made sense.
Mr. Hynes: It’s a great question, and I watched the discussion yesterday. I can appreciate how there might be some confusion. I think the use of the word “emergency” may be causing some extra confusion here.
The comment from the officials that it would be somewhat seamless for an employer to move employees in situations of emergency is, I think, unintentionally misleading. The reason I say that is because the bar that must be met for this to happen under these new rules — that will be implemented under this bill — is really high. It has to be in situations where there’s a threat to the life of a person. There is a threat of destruction or serious damage to an employer’s property. There is a threat of serious environmental damage. This is the exact text from the bill.
Now I ask you this: If the community of Iqaluit lost its cell service, and individuals could not use their cellphones, do you think that would constitute an emergency? I would argue it would not under the rules and the language in this bill.
There’s an example where TELUS, which is the company we talked about earlier, could not send professionals from another location into Iqaluit to maintain equipment if a tower collapsed or something to that effect — because the threshold is so high, it would not have been met under these rules. When there have been arbitrations around these standards regarding the thresholds, arbitrators define them very tightly. It needs to be a serious emergency.
I don’t think the message from the officials is entirely accurate in that regard.
Senator Dasko: Thank you very much. That answers my question.
The Chair: If we had time, we’d probe more, but we only have four minutes.
Senator Lankin: Mr. Hynes, that’s not a bizarre example you used. During the sun pulses and the aurora borealis a couple of weeks ago, much of rural Yukon did lose cell service, so it’s a good example.
I would like to return to Ms. Kozhaya. I’ll make my question brief, because if I have time, I’d like to ask a question of the Canadian Federation of Agriculture as well. In your presentation, you offered that you would like to see an amendment to limit the replacement ban only to employees who are hired after the strike.
I don’t want to just jump to the negative, but my mind did, and I’ll be honest: What I see there is an invitation for an employer — when a contract is coming to an end and they’re going to begin contract negotiations or whatever — to restructure the workplace, hire different people and prepare with internal replacement workers.
Please tell me how that is not what the result would be.
[Translation]
Ms. Kozhaya: Thank you. Currently, employers are prohibited from using workers to undermine a strike. I don’t think the situation you’re describing is what would happen. Keep in mind that, even when an employer does use replacement workers, the employer isn’t getting the same level of efficiency or productivity. The thinking is that a strike isn’t disruptive to an employer that uses replacement workers, but that’s far from true. The result you’re talking about shouldn’t be the case.
Ms. De Cicco: We think the movement of workers should be allowed. There is a difference between replacement workers and anti-strikebreakers who are hired to put an end to the strike but using violence and intimidation, say. We really want replacement workers, the movement of employees. Certainly, there will be an impact —
[English]
Senator Lankin: To interrupt you, my question really wasn’t on the issue you’re addressing. It was on the statement in your presentation that the replacement ban should be limited only to employees hired after the strike; you couldn’t hire someone to replace a worker after the strike had begun. My question was this: I think there are examples that show that some employers — not most, but some employers — notably in difficult situations, have restructured their workplace and hired additional workers to be able to withstand a ban on replacement workers. It’s been at the provincial level already. We don’t have it at the federal level.
Please explain to me how that provision you’re recommending would not be used for that purpose by an employer. What other purpose would it be for?
Mr. Hynes: Senator, would you like me to jump in on that?
Senator Lankin: Please. You didn’t make the recommendation, but sure, go ahead.
Mr. Hynes: We did make a similar one; it is not quite the same. The recommendation we made is a compromise between the bill and what you just talked about, which is around the notice to bargain versus the notice of dispute. It wouldn’t be our contention that an employer could hire a bunch of new workers off the street after the strike begins. I agree with you that it would be inappropriate.
But the notice to bargain versus the notice of dispute gives the employer a little more runway to prepare in the event it needs to.
Senator Lankin: I understand.
The Chair: Thank you very much.
Senator Lankin: My apologies to the Canadian Federation of Agriculture that I didn’t get to them.
The Chair: Senators, this brings us to the end of this panel. I’d like to thank all of our witnesses for their testimony today. Your insights are greatly appreciated.
Colleagues, as a reminder, we’re proceeding to clause-by-clause consideration of Bill C-58 tomorrow at 11:30 a.m. in this same room. If you have observations and/or amendments, kindly share them in both official languages, et cetera.
Our next meeting today, though, is at 6:45 p.m. in this room, where we will be doing clause-by-clause consideration of Bill C-50.
(The committee adjourned.)