Proceedings of the Standing Senate Committee on Social Affairs,
Science and Technology
Issue 14 - Evidence - June 10, 1998 (evening sitting)
The Chairman: We will now resume consideration of Bill C-19. We are pleased to
welcome witnesses from the Air Canada Pilots Association. With us tonight is
the president of the association, Captain Tom Jerrard.
Captain Yves Filion, President, Executive Council, Montréal Local, Air
Canada Pilots Association.
I presume that you have a brief opening statement to make, Mr. Jerrard.
Captain Tom Jerrard, President, Air Canada Pilots Association: We have an
introduction and then I should like to give a speech.
With me tonight is Captain Yves Filion. He is a representative for the
association from Montreal. Both of us are volunteers. We must fly and remain
competent, as any other pilot at Air Canada, or any other airline. I should
also like to acknowledge the presence of some Air Canada pilots who are here
this evening to lend support.
The Air Canada Pilots Association (ACPA) was certified in November 1995. We
represent approximately 2,200 pilots. We are the largest Canadian-based pilot's
union in the country. We represent only the pilots who fly at Air Canada. The
pilots who fly at Air Nova, Air Alliance, Air Ontario or Air B.C. are
represented by the United States-based Air Line Pilots Association (ALPA), as
well as Canadian Airlines International (CAI) pilots.
You have before you a copy of the facts about ACPA and our position regarding
Bill C-19. Included in the documents is ACPA's suggested amendments to Bill
C-19. Also, in the package you will find a letter from Air Canada supporting
ACPA's amendments. I will not be reading from that document, although I may
refer to parts of it.
ACPA has a number of concerns with the bill as it is written. Its language is
poorly drafted. As an example of that, we refer you to the sections regarding
replacement workers. It displays unfairness in dealing with different segments
of the federal labour scene. I refer in this case to the grain handlers. We
believe that it undermines democracy. ACPA does not agree with the union being
certified without majority consent.
These unintended consequences hold the potential to seriously undermine the
system of free collective bargaining. Beyond these general concerns, we have
specific concerns about the proposed section 7 of the bill. Section 7 raises
some of these issues seen elsewhere in the bill, but also raises some safety
Some of you have asked why ACPA is the only party to raise concerns about and
oppose parts of proposed section 7. As you can see, with Air Canada's letter in
our package, we are not the only ones. We have two reasons for being here. The
issue of seniority is uniquely complex and crucial to the orderly progression
of a pilot's career. ALPA would have you believe that the board should rule on
seniority rights. This is because a vast majority of the pilots that ALPA
represents fly for regional airlines and would like to join main line airlines.
I must ask: What labour problem is proposed section 7 of the bill intended to
solve? Have you heard of any problems in the past concerning seniority, other
than ours, that has raised so much concern that the law must be changed? The
answer is no. What problems there may have been have obviously been solved
under the current law. That leads one to believe that the current law works. If
so, why change it? ACPA is left, therefore, with one conclusion: The bill is
tailored for the pilot's particular circumstance. It should not be.
It is appropriate at this time that I ask Yves Filion to explain the uniqueness
of pilot seniority.
Captain Yves Filion, President, Executive Council, Montréal Local, Air
Canada Pilots Association: Mr. Chairman, seniority greatly affects pilots'
lives in terms of length of leave, choice of when leave is taken, working
conditions, type of aircraft piloted, promotion, compensation, and layoffs.
Seniority affects our day-to-day lives. Let us look at the career profile of the
captain of a Boeing 747. This person is approximately 56 years old, has over 30
years of service with Air Canada, has flown and is familiar with all Air
Canada's routes, began by flying small aircraft, was a first officer and now,
following a promotion, is the captain of a 747.
Seniority makes possible a natural progression to the level of skill,
qualification and experience that guarantee the level of responsibility this
captain must assume. That is the case at Air Canada. It is also the case at
Canadian, United, Delta, and all over the world. Ranking by seniority is a
standard. All over the world, pilots who join major airlines do so knowing that
they will be at the bottom of the seniority list.
Bill C-19 authorizes a committee to alter this normal progression and make
Canada the only country in which the rules will be different. It could create
an opportunity for regional pilots to dispense with this normal progression and
find themselves elsewhere than at the bottom of the list.
Recently, out of an initial number of 800 regional pilots, 400 joined Air
Canada. The 400 regional pilots who did not join Air Canada hope to take
advantage of Bill C-19 in order to improve their conditions of doing so.
In the opinion of Air Canada pilots, a negotiated solution is acceptable. An
imposed solution is not, however, and may not be acceptable to the other party.
The most important aspect of pilots' careers is security. The most important
aspect of their jobs is seniority.
Mr. Jerrard will now present to you ACPA's proposed amendments.
Mr. Jerrard: The proposed section 7 refers to section 18.1 of the Labour Code, a
section which proposes rules regarding a review of bargaining units and any
resulting contract issues. Legislation proposes, with regard to section
18.1(2), an unmanageable one-step process that would simultaneously require the
resolution of the bargaining unit and the collective agreement that would
apply. The result of the one-step process would be an unfair, undemocratic,
board-imposed solution; outcomes that are incompatible with our free collective
The second part of our handout explains ACPA's reasoning in this regard. ACPA
proposes that proposed section 18.1(2) be modified into two steps. First,
determine the bargaining unit. Second, negotiate a contract between the union
left with the bargaining rights and the company.
I have been told on different occasions that ACPA's solution is what the bill
intends. If that is so, then there should be no opposition to our amendment.
Honourable senators, if you read ACPA's amendment, you will see that we have
provided the board with the needed flexibility and discretion, at the same time
clarifying the poor language for the benefit of all. This will eliminate the
unfair participation of unions that are not ultimately, legally responsible and
eliminate an inconclusive process that would lead to board-imposed solutions.
The second amendment we are asking for is to amend section 18(4)(d) to remove
the ability of the new board to rule on seniority. Why should you amend the
bill to remove the seniority reference? There are three reasons.
First, any previous disputes have been resolved under the current law. You do
not see anything out there other than ours. The current law works. Why change
it? Allow normal bargaining to reach a negotiated settlement, one that would
ultimately be ratified by the majority -- democracy at work.
Second, this clause of the bill is intended to address the particular
circumstances of the pilot case, a situation-based approach as opposed to a
Third, as you have heard, seniority has a unique effect on a pilot's career and
the progression of that career. The application of an unfair, imposed solution,
an undemocratic solution, will have serious negative consequences. Allowing the
board to rule on issues of seniority is tantamount to inviting the board to the
bargaining table. The board will be interfering in the bargaining process.
Seniority rights are to be negotiated between the union and employer only.
Honourable senators, there will be a safety issue involved if an imposed
settlement is invoked. As pilots, we trust, cooperate with and coordinate our
every action with the pilot sitting beside us in the flight deck. You may be
told that this is not a big problem; pilots are professionals and experts will
assist in the situation. I direct your attention to the Dryden accident, where
union ill-will was one of the many contributing factors to that accident.
The pilots in that accident were professional. I am not criticizing the pilot's
professionalism in any way. Yet the accident still occurred. Are you willing to
allow even the slightest compromise to safety? ACPA is not.
You must ask yourself the following questions: Will you allow this bill to pass
when it contains poor language? Will you allow this bill to pass when it will
treat unfairly different segments of the federal jurisdiction? Will you allow
this bill to pass when it will chip away at democratic rights? Will you allow
this bill to pass when it will affect the safety of the travelling Canadian
public? Will you let your minister face public criticism for doing nothing to
correct this bill, knowing the unintended consequences? Will you let the
government and the Senate become tools to undermine democracy?
ACPA asks that you consider the interests of the Canadian public ahead of
anything else. ACPA asks that you recommend amendments to this bill. Fairness,
democracy and safety demand that you make the necessary decisions. Bring a full
measure of balance to this bill.
Senator Maheu: Thank you for your presentation. I have a problem with some of
your comments. Let us elaborate on this safety issue. You say the minister is
certainly not looking at it. I have trouble believing it and I am troubled that
you would say it, especially of this minister.
Common sense tells me that a pilot whose expertise involves flying a Dash-8,
regardless of his or her years of seniority and experience, would not fly a
Boeing 747. That would indicate a high level of disregard for safety and
imprudence on the part of the minister.
You are pushing on this safety issue. I should like you to elaborate a little
more. Give me some concrete facts on where public safety would be endangered,
unless our minister changes this bill.
Mr. Jerrard: The dispute that has been ongoing between the pilot groups and into
which we have been drawn by the regional pilots, has led to animosity and
acrimony that goes beyond anything I have ever seen. There have been threats
against our own pilots. There have been threats against our pilots' families.
There have been incidents of vandalism. There have been fights. This situation
has escalated to the point where it is virtually impossible for pilots to look
at flying in the cockpit with these other pilots, under an imposed situation.
We see a freely bargained and democratically chosen solution as the way to
resolve this issue, where all parties will end up ratifying an agreement on
which they can all work together. An imposed agreement will not get us there.
You asked me for proof. I brought with me a small booklet of documents that
support what I have said about the acrimony in this situation. If you care to
have one, we can hand them out when we are finished here.
Mr. Filion, you might want to add a couple of comments.
Mr. Filion: I would like to add one comment. About 15 years ago, every time
there was an accident, the accident reports indicated pilot error. A few years
ago, the airlines introduced a concept referred to as Crew Resource Management
(CRM). Now pilots are trained to manage not only their own skills but the
cockpit as well. The airlines saw that, in many cases, poor communication among
crew members was often the cause of accidents. Communication is the most
important thing in the cockpit. The relations between the captain, the first
officer and any second officer are very important if genuinely safe flights are
to be achieved.
Any interpersonal problems between these persons must be resolved before each
flight; otherwise the flight is not possible. We believe that if an
unsatisfactory solution is imposed on either ALPA or ourselves, there will be
situations in which crew members will not be comfortable speaking to each
other. They will not even look at each other. It is important that this
situation be properly resolved.
I must say that, over the past two or three years and especially in the past six
months or so, we were approaching a negotiated solution with ALPA. Bill C-19
will allow those people to hope for something better than what we are offering;
it will allow them to refuse negotiation and hope that their solution will be
imposed on us.
The Chairman: When you say ''what we are offering,'' do you mean Air Canada?
Mr. Filion: The regional pilots have been offered much better hiring conditions
than those offered to pilots from the military or from other airlines such as
Air Transat who join Air Canada.
The Chairman: Is Air Canada is making that offer?
Mr. Filion: Air Canada is making that offer but part of our argument is that, if
more money is being offered to new pilots, that money has to come from
somewhere. It comes from the senior pilots. The payroll cannot be stretched
indefinitely. To some extent, Air Canada pilots are part of that offer.
The Chairman: How long have these negotiations been going on?
Mr. Filion: The negotiations have probably been going on for, say, a year and a
half or two years.
The Chairman: Is your Association involved in the negotiations?
Mr. Filion: Yes, we are involved.
The Chairman: And are the regional pilots involved?
Mr. Filion: Yes.
The Chairman: But in your view there has been no progress?
Mr. Filion: There has been no progress because, if an offer does not suit a
party, it can just stall and hope for a solution imposed from the outside that
may be better than what is on the table. That situation alters the authority to
negotiate and distorts the negotiating process.
Senator Maheu: I feel as though you are acting like bad-tempered little boys,
and you know what should happen. It makes me ill to hear you talk about the
danger of infighting on a flight deck, how it could literally endanger public
ACPA has already taken this dispute to the Piché arbitration. Air Canada
pilots did not or apparently will not abide by the ruling. Could you tell me a
bit more about that?
Mr. Jerrard: To answer your comments, we are not talking about infighting in the
cockpits. I am talking about a condition where trust has been violated, where
the pilots cannot trust each other. I have received two death threats myself.
We have had pilots whose wives have been called in the middle of the night and
have been told, "We know that your husband is not there, he is out flying."
Senator Maheu: Is this by other pilots, who are not part of ACPA?
Mr. Jerrard: In our opinion, these calls are coming from only one source.
We are talking about a breakdown of trust and the inability, with an imposed
situation, to rebuild that trust. We are not talking about actual fights in the
cockpit. You need trust on the flight deck to operate aircraft today.
The other issue that you refer to is the Piché award. That was an
internal resolution procedure that the Canadian Air Line Pilots Association
(CALPA) had at the time. That procedure did not negate Air Canada's right under
the law to choose its own future. The future they chose was the Air Canada
Pilots Association (ACPA). That award was under the constitution policy manual
of that union and is only binding within that union.
Senator Maheu: Mr. Filion, in your opinion, if Air Canada were to merge with
another, equally large airline, how should the seniority lists be consolidated?
Mr. Filion: One example was the TWA purchase of WardAir. That transition was not
easy for them. There was even talk of differences in the cockpit. And Canadian
Airlines pilots would tell you that for some time management could not have
Canadian Airlines pilots fly with former Canadian Pacific or Eastern Provincial
Airways pilots. They had to be separated for a few years. They did not have the
same level of difficulty we are experiencing with our regional pilots. To answer
your question, we think that a negotiated solution in a climate favouring
genuine negotiation will allow us to reach a solution.
Senator LeBreton: Thank you for appearing here this evening. I have a lot of
faith in Air Canada. I always feel safer when I get on an Air Canada plane
after having been on other airlines.
When I first heard you speak about safety concerns, I thought about morale,
because, in addition to the conflicts, poor morale probably has as much to do
with a person's job performance as any other facet of that person's work
Did you say that you were close to a negotiated settlement? As we know, this
bill was originally introduced last year, then died on the Order Paper and was
reintroduced. Has it complicated your efforts to reach a negotiated settlement
with the regional carriers?
Mr. Jerrard: That is a good question.
On several occasions -- two occasions recently -- we have tried to reach some
sort of settlement. In my opinion, this bill has complicated that effort
because it holds out the hope of an imposed settlement. Any group in the
federal industry that cannot get something through normal negotiations could
look at this bill and stonewall and try to get, through a board-imposed
solution, something better than what they have now. In this particular
instance, yes, this may be a factor. One side might decide, looking forward to
this bill, that there is no reason to agree to anything now.
Senator LeBreton: Would you care to comment on how morale affects safety, in
addition to perhaps non-communication in the cockpit? Is it a major factor?
Mr. Jerrard: There is no problem at the present time. Air Canada pilots are
extremely happy, given the normal relationship with the company. However, we
are in contract negotiations, and no one knows how they will go.
We are talking about an event in the future that would impose a seniority
solution that will not necessarily be acceptable to the majority of the people
involved. At that time, many factors will come into play, one of which will
probably be morale, yes.
Senator LeBreton: If this piece of legislation had never happened, if you were
not confronted with it, where do you think the negotiations would be right now?
What would be happening right now with the regional carriers if you were all
left to your own devices?
Mr. Jerrard: That is a good question. I wish I were a prophet.
There is a process in front of the board now which has been invoked and which we
are going through, and this bill will affect it. We will go through that
process and there will be an outcome. There may be negotiations occurring after
It is difficult to say, when you come into the middle of an ongoing situation,
that it will never end.
It will end one of these days. I believe that it will end in a negotiated
solution, which the majority of the people will be able and happy to ratify.
The Chairman: On that note, we will conclude your testimony. Thank you very
Senator Kinsella: Is there an ACPA contact person from whom we could get further
explanation on the legal draft?
Mr. Jerrard: Yes. You can contact me.
The Chairman: Thank you very much.
Senators, we will now hear from ALPA representatives.
Mr. Dan Adamus, Chairman, Legislative Affairs Committee, Air Line Pilots
Association International: I am a pilot with one of Air Canada's regional
airlines, Air Ontario, and have been for 13 years. When I am not flying the
line, I am ALPA Canada's pilot representative in government affairs. With me
today is Mr. Stoykewych, senior counsel with ALPA.
ALPA represents over 46,000 pilots in collective bargaining across North
America. In Canada, we represent 2,700 members at 10 airlines. These airlines
vary in size from Canadian Airlines -- a carrier with over 1,200 pilots -- down
to smaller airlines such as Bearskin Airlines, with less than 100 pilots.
On behalf of ALPA, I wish to express our thanks for the opportunity to speak in
support of Bill C-19. We, along with the rest of organized labour in Canada,
have some reservations about certain aspects of the bill. However, in general,
we wholeheartedly endorse this legislation and urge you to pass it immediately.
Our organization is situated in the airline industry which, perhaps more than
others, has experienced tremendous change over the last 15 years. For that
reason, we have had to rely upon the Canada Labour Board quite frequently to
ensure that collective-bargaining relationships are not swept away as a result
As experienced users of the board, we believe that the proposed legislation,
which empowers the board to take timely and effective action, is very positive.
Our concerns about the strike replacement provisions, which we believe do not
go far enough to protect the rights of employees exercising their right to
strike, are set out in our brief. Therefore, I will not speak on them tonight.
ALPA and the pilots at Air Canada are currently before the Canada Labour
Relations Board in a case in which our claim that all members of the Air Canada
family are a single employer is being determined.
I am not here to argue the merits of this case before you, since our lawyers are
doing a great job of that. I am here primarily to tell you how important the
proposed changes to the board's remedial powers are when it decides to merge
bargaining units. Those changes are found in clause 18.1 of the bill. They have
the effect of allowing the board to make orders with respect to the collective
agreement, including the seniority list, when two groups of employees are merged
into one by the board's order.
The proposed changes to the board's powers are important to all organized
employees in such cases. They are, however, of particular interest to airline
pilots, for whom seniority is a crucial determinant of pay, domicile, cockpit
position, aircraft type, schedule, and other aspects of the employment package.
The way the legislation works is simple. Once the board has made the declaration
that the two companies are, as a matter of law, a single employer, and orders
that the bargaining units be merged, it then decides which of the unions that
had previously been representing the separate groups will represent the new
The board has had this power for decades. The parties are then permitted an
opportunity to bargain on all matters relating to the merger of the two groups,
including seniority lists. Only if bargaining is unsuccessful -- and this is
what is new in the amendments -- will the board be able to make a ruling with
respect to the collective agreement that will be in place in the newly merged
entity; only then will the board be permitted to consider the circumstances and
order the result that it thinks is fair.
There are a couple of things worth noting in this regard. Merging bargaining
units is not like getting hired with an airline. We agree with the folks at
ACPA that you should begin counting your seniority when you are hired by an
airline. However, we are not talking about getting hired; we are talking about
merging bargaining units.
Second, the board's new powers will not interfere with the collective-bargaining
process. This would avoid injustices, which could result from its
single-employer orders. We believe that, without such a power, the
labour-relations job that the board is doing would be left half-done and, from
the employee's perspective, serious injustices could occur. That is because,
with such a power, the seniority of the employees in the group that is not
represented by the successful union is determined by the successful one.
Many unions, including our own, have developed internal dispute-resolution
mechanisms for the mediation and resolution of seniority disputes. In our
experience, when allowed to work, these systems can be very effective in
resolving these extremely difficult issues.
However, these procedures are not normally applicable in circumstances where
employees are being merged from two different unions, as would be the case were
the Air Canada pilots to be merged with the Air Canada regional pilots.
You have heard ACPA's position that they do not think our years of service for a
common employee are worth anything, even though I wear the same company
identification card and wear the same uniform as them.To have their seniority
arbitrarily determined by the larger group in the merger could be devastating
to the smaller group's employees.
We think that the board's powers inject an element of fairness into the process.
We are not advocating any particular result of this process, and it may be
that, in certain circumstances, it would be fair for one group to go to the
bottom of another group's list. However, we think that this critical issue
should not be decided simply on the basis that one group is larger than
We therefore urge you not to modify this extremely beneficial provision.
I thank you for your time. We would be happy to answer any questions you may
The Chairman: Thank you.
Senator Ferretti-Barth: What bothered me a great deal about the two first groups
of witnesses was the impression I had--you will excuse me -- that their
presentations involved blackmail.
Your two associations are part of the same professional structure. If I
understand correctly, the conflict arises from Bill C-19. One association will
win over the other, which will cause another quarrel between you.
Being a pilot, like being a physician, is a very special profession that
involves responsibility for human lives. This conflict is endangering the lives
of airline passengers because you do not agree. That is what I would like to
understand. What is not working in your system? Both witnesses spoke about
seniority not being properly recognized; there was also mention of death threats
between crew members and lack of safety in the cockpit.
Today, on the eve of the 21st century, how many people travel by air? As pilots,
you freely chose to practise this profession. As well-educated adults, you have
the right to settle your conflict with government assistance and to come to an
Your two groups must reach a consensus. You must find a solution. Your two
associations are part of air transportation. Whether you fly for Air Canada or
any other airline, you are still pilots. You are the captains of the skies,
where millions of people put their trust in you.
Mr. Adamus: In the regional ranks, we do not see the fighting mentioned by our
friends at ACPA. We find it absurd that a rift could get in the way of our job.
I have been through a merger before. Not everyone will like the outcome. There
was a bit of a -- for lack of a better word -- rift amongst the two groups.
Once we got in the cockpit behind the closed door, it was gone. We are there to
do a job. We are all professionals. We are trained to do a job. Our number one
job is to transport the passengers safely. That is that. If we want to discuss
it, then that is done outside the cockpit. Inside the cockpit, we only discuss
those matters dealing with that particular flight. Whenever I have been in the
cockpit, there has been no problem whatsoever.
Another example would be a personality conflict amongst two pilots before they
go flying or afterwards, but once they get behind that closed door, it goes
away. We are professionals.
Also, we all operate under a standard operations procedure (SOP). It is a set of
ways of doing a particular job function, and we all follow it. Again, I find it
absurd that our friends are talking about problems getting in the way. I cannot
agree with them.
Mr. Roman Stoykewych, Legal Counsel, Air Line Pilots Association: I will address
your commentary with respect to what is wrong with the system and whether the
internal in-fighting can end. Certainly, this is a difficult dispute between
the parties. The seniority issue is important. We have in common, at the very
least, the importance of seniority within the piloting profession.
The feature of the system proposed within the proposed section 18.1 is an
opportunity for a third party to deal with the dispute in a concrete and
responsible manner. We speak of an imposed settlement. The board has many
processes by which it is able to effect a labour-relations result. Critical to
this process is the legislation itself, which provides the parties with a
substantial opportunity to bargain, discuss, mediate and deal, in a realistic
manner, with the outstanding issues. It is true that that would be done under
the shadow of potentially appearing before the board, and at the end of the
day, the issue may well be resolved. However, we trust that the board, in
dealing with these factors, will look at all the relevant circumstances. It
will look at industry practices, will hear things about safety and will
consider all these matters. Frankly, we think that precisely the kinds of
issues that are being raised today are best addressed in that forum so that
there can be a determinate, responsible, and full conclusion to this extremely
The Chairman: Are you in private practice?
Mr. Stoykewych: I am currently working as in-house counsel for ALPA.
The Chairman: I wondered whether in view of your experience in labour law it is
true, as we have been told, that this section of the bill was put there
specifically for this one case, that there are no others.
Mr. Stoykewych: That, with the greatest respect, is simply not the case. In
fact, a number of the provinces either have or have had similar legislation in
their respective labour codes. In fact, in Ontario, precisely this piece of
legislation was on the books for several years.
Senator DeWare: That is not the question.
The Chairman: No. The statement made among the people who will be affected by
this bill, namely, people within the federal jurisdiction, is that yours is the
only case that anyone knows of that would be affected by this section.
Mr. Stoykewych: That, with the greatest respect, is not an accurate description
of the labour relations situation in Canada.
Seniority disputes upon a merger are critical and extremely difficult. The fact
that perhaps no one has heard of them, or that perhaps the Air Canada Pilots
have not heard of them, is undoubtedly a result of the fact that there has been
no forum in which to bring those disputes. Those disputes are left essentially
festering, or they are simply left for the more powerful party to prevail over
the interests of fairness.
Senator Kinsella: I should like to focus on proposed section 7 of the bill.
Is there anything in the literature, in Brown and Beatty or Palmer, that speaks
Mr. Stoykewych: Brown and Beatty and Palmer are textbooks dealing with labour
arbitration. Labour arbitration is typically a process that is undertaken once
a collective agreement is in place and a determinate bargaining structure is in
Senator Kinsella: We understand all that. I will look it up. Let us now turn to
the provisions of the proposed new section:
18.1(1) On application by the employer or a bargaining agent, the Board may
review the structure of the bargaining units if it is satisfied that the
bargaining units are no longer appropriate for collective bargaining.
Can you give me an example from your industry where a given bargaining unit
would not be appropriate?
Mr. Stoykewych: A simple example would be a bargaining-unit description that
would refer to flight engineers. Typically, in bargaining units, those not
having a three-member crew would no longer make sense.
In our industry, the actual inappropriateness of the unit may well have to do
with a structure that causes labour-relations difficulties. Without unduly
entering into the subject-matter of the common employer case, which is
currently before the board -- for a number of excellent reasons I will not get
into that -- the essence of our case before the Canada Labour Relations Board is
that the nature of the bargaining structure causes the conflict because it
produces incentives for the parties to disagree.
Senator Kinsella: Is there jurisprudence on this?
Mr. Stoykewych: There is a vast jurisprudence before the Canada Labour Relations
Board and other boards as to what constitutes an inappropriate bargaining unit.
Senator Kinsella: If proposed new section 18.1(1) carries, and then we look at
proposed new section 18.2(1), what will play out in your industry, if the board
reviews the structure of the bargaining units and allows the parties to come to
What is your understanding of the agreement that the parties must arrive at in
order for the board to act under proposed new section 18.1?
Mr. Stoykewych: I do not have the wording of the proposed section before me.
My understanding is that, upon the board issuing a decision that a common
employer declaration will issue, the parties to the proceeding would then have
the opportunity to discuss and agree amongst themselves as to the appropriate
labour-relations resolution for the entire range of issues confronting them.
That is an important aspect of this bill and one that must be understood as the
fundamental part of a collective-bargaining regime. It allows the parties to
tailor labour-relations solutions that are appropriate to their circumstances.
As you have heard in the previous half hour, this is not simply a matter
whereby three people from Ottawa would impose a particular resolution.
Under the terms of the statute, the parties would be allowed to agree, at least
in part, and perhaps remit certain issues to the board for its determination
upon those issues that they cannot agree upon. Or they simply may agree to all
of the outstanding issues.
Frankly, it is a matter of some time. At present, we are facing a rather new
situation. However, with a board that responsibly deals with this issue, it
will provide guidance to the parties as to what the appropriate labour
relations expectations will be in the community.
Senator Kinsella: Would you agree that there is at least a subjective, as well
as a perhaps objective, element that speaks to the community of interest and
that is shared among the members of a given bargaining unit? When that goes to
a third party to determine what constitutes the interest, whether in terms of
the appropriate bargaining unit or the content of the collective agreement, is
it not difficult to cover the subjective element when the third party is doing
Mr. Stoykewych: There is an obvious importance in what people are thinking and
believing. That is the essence of labour law; namely, that people believe, and
have, conflicting ideas.
The art of labour relations is to be able to work with those conflicts and to be
able to find some workable solution to them. That is what labour boards do.
Senator Kinsella: In proposed new section 18.1(2)(b) it states, the Board:
...may make any orders it considers appropriate to implement any agreement.
In the Labour Code, when any order is made, it is singular. Do you attach any
significance to the appropriateness of the phrase "any orders" as
opposed to "any order" under the Labour Code?
Mr. Stoykewych: It would certainly permit the board to make more than one order
at a time. It may well be that a single order may not solve the problem. It
might be useful to permit the board the legislative mandate to make more than
one, if that is what the situation calls for.
Senator Kinsella: Is there a special meaning in labour law between the phrase "any
order" and "any orders," or is it just bad English?
Mr. Stoykewych: I do not think it is bad English. It allows for a plurality of
orders in order to permit the board to be able to resolve an issue that may
require more than one order.
Senator Johnstone: I know something about what you mean about the importance of
trust amongst a crew in the air. A crew with a lack of trust, in-fighting or
low morale in Bomber Command in World War II would not have lasted long at all.
Do you feel that the provisions of Bill C-19 impinge upon the normal procedures
involved in determining seniority? If so, what would your solution be to this
Mr. Stoykewych: That is an important question, in terms of what the bill does
and does not do.
We certainly think that this is not an interference in the normal procedures of
collective bargaining. A board ordering a merger of bargaining units results in
an extraordinary bargaining circumstance.
The traditional role of labour boards in Canada and the United States is to
provide a framework, or parameters, within which collective bargaining can take
place. Collective bargaining can simply not take place without resolving the
parameters of the bargaining relationships.
We assume that the labour board will not take steps that unduly impinge upon
free collective bargaining. We think that it will limit those matters to those
that are necessary to enable free collective bargaining to take place.
Senator DeWare: I am interested in asking the minister about who is asking for
this legislation and by whom it was driven.
Seniority is more important for pilots than for many others involved in
collective agreements. Seniority determines what aircraft is flown, when
holidays are taken, which shifts are worked and may even determine where a
pilot lives. It does not do that in other industries, to the same extent. How
will the seniority process operate under the new board that will be formed?
Let us take, for example, a company that has a time schedule to finish a
particular job and decides to hire extra workers to finish that job. Under this
bill, the company would have to pay those employees the same wages and
benefits. That would have a serious impact on the Canadian industry's
competitiveness. Under this bill, the company would have to do that.
Given that this is not part of your mandate, I do not think you have even
thought about what this bill might do to the industry.
Mr Stoykewych: The senator is perfectly correct in stating that we have not
informed ourselves with respect to that particular issue. She is also correct
that it is not part of our mandate here.
Senator DeWare: I realize that, but it could be a big issue.
Mr Stoykewych: Undoubtedly.
The Chairman: I think that the amount of interest around the table speaks for
itself. Thank you for your presentation and for answering our questions.
We will now hear from the Federally Regulated Employers -- Transportation and
Communications. They clearly have a stake in this bill and have asked to be
We have Mr. George C.B. Smith, the chairman of FETCO. With him is Mr. David
Olsen, co-chair of the subcommittee on Part I of the Canada Labour Code. Mr.
Smith has an opening statement to make.
Welcome and please proceed.
Mr. George C.B. Smith, Chairman, Federally Regulated Employers -- Transportation
and Communications: Honourable senators, my presentation will be purposefully
short, given the time constraints, but I wish to convey to this committee the
energy and effort that has gone into this amendment. FETCO, as a group of
federally regulated employers, is deeply affected by Part I of the Canada
My presentation will be in four parts. I will begin by describing who we are
because I think it is important for you to understand that. Second, I will talk
about our perspective regarding legislative reform. Third, I want to speak
about the process itself and our involvement in it. Finally, I will have a few
comments on the contents of the amendments.
Our brief identifies our member companies. There are over 20 of them,
representing an estimated 60 per cent of the employees in the federal
jurisdiction. Our companies employ in the neighbourhood of 400,000 employees in
I should add that in my day job, I am the vice-president of human resources at
We have in common amongst our industries and companies a high percentage of
unionization and often a multi-union environment. We are, as well, unique
businesses in the sense that we are seven-day-a-week, 24-hour-a-day,
365-day-a-year operations. A list of our member companies is available in the
As it relates to our approach to legislative reform, you will note in our brief
that FETCO was formed around the issue of legislative reform. In 1983, when
amendments were being considered to the Labour Code, we felt that there was not
an unified employer voice that could participate in the process. Indeed, we
lobbied successive governments for a stronger consultative role in legislative
and regulatory reform. We believe, in part, that this role has been realized in
the bill before you. I think that point is important to note.
Over the number of years that we have been together as a group, we have seen
significant changes in our business environment. More and more, the emphasis on
our representations and our consultations with government has to do with
ensuring that there is a competitiveness to our legislation -- that is, that we
are competitive and can compete with companies in industries that are now
global, in respect to ourselves. As well, there is some stability in the
industrial relations within the environment in which we operate.
Part I of the Canada Labour Code is the single most significant piece of
legislation for us. We believe that the law should only be changed when it is
seen not to be working or where it is not in line with general public policy
and the economic environment.
I will now focus on the process that we were involved in, that ultimately
created the bill before you. Indeed, we have been implicated in discussions on
the legislative review of Part I of the Canada Labour Code for three years.
There have been four ministers of labour during that time, I think. The most
significant intervention was by Minister Gagliano, who created a task force
under Andrew Sims. Mr. Sims requested, and we actively participated in, a
consultative process in an attempt to, wherever possible, reach consensus
between management and labour around the issues that were, and are, addressed
in this bill.
It is very significant to note that our member companies endorse that. Mr. Olsen
was the co-chair of a committee that sat for several months, toured the
country, and took input with Mr. Sims. Ultimately, the result of those
consultations with management and labour created Bill C-66. Bill C-66, for the
most part, reflected those consultations but had a number of what we believe to
be significant flaws, given the effort that we had generated in working toward
Specifically, at the House of Commons committee dealing with Bill C-66, we made
representations on issues that we felt did not reflect the balance that had
been carefully sought through the process and/or were not the subject of
consultation. As a result, amendments were made that are before you now in the
form of Bill C-19. We are content that Bill C-19, on balance, addresses some of
the more significant policy concerns we addressed related to Bill C-66,
specifically clarifying the off-site and replacement-worker provisions. That
was a significant amendment made during the previous parliamentary process, to
which we contributed.
Overall, we have been pleased with the process and the opportunities presented
to us for meaningful input and dialogue throughout this lengthy legislative
process. We do, however, believe that there are several areas where further
consideration will be given.
It is important that we compare and contrast the process involved here with the
highly politicized process -- of which you may be aware -- that has occurred in
both the B.C. and Ontario labour jurisdictions, where successive governments
have repealed and re-issued legislation.
We are not in that environment now. We have had a highly consultative process
and we, as the largest employer's group involved, participated freely and
actively and are for the most part satisfied that what is created here reflects
a balanced approach to the legislation's review. It is, for the most part,
competitive and our members can live with it. We believe that the only issue now
is getting on with the bill and ending what has been a significantly long
Before I conclude, there are two areas which we would highlight in terms of
concerns.I believe that Senator DeWare mentioned one of them in a question at
the end of the last presentation. One of our areas of concern is around section
47.3, the successive contracts for services. Section 47.3 imposes a duty on air
carriers in airports to ensure that new federally regulated contractors
providing services to them compensate their employees at the same rate as the
employees of the former contractor who had a collective agreement with its
employees. That was covered by Part I of the Canada Labour Code. We believe,
simply put, that this provision does not meet the test of competitiveness. At a
time when Canadian business and Canadian airlines are facing unprecedented
competition from abroad, restrictive provisions such as this erode our
competitive ability, while producing little, if any, benefit to a small sector
of the economy.
Furthermore, we believe that proposed section 47.3(1)(b), which empowers the
Governor in Council simply by enacting regulations to designate any other
industry that would be then subject to this successorship obligation, is a
problem. We are completely opposed to this wide grant of authority given in a
vacuum, with no apparent mischief to be addressed. We would suggest that if the
entire provision is not reconsidered, it is our submission that, as a minimum,
section 47.3(1)(b) should be deleted because of the unprecedented powers that
Finally, as it relates to section 87.7, services to grain vessels, I believe
that this has been the subject of some significant debate before this
committee. FETCO has members on either side of this issue, so I will not get
into the substantive matters. However, given our strong commitment to and our
belief in free collective bargaining, we must reflect to you a concern about
the precedent created by this approach, which may lead to designation of other
federal industries. Simply put, we support the principle that parties should,
wherever possible, be left to fashion their own collective bargaining solutions
rather than have government intervene in the free collective-bargaining process.
We would raise that concern with you.
In summary, we believe that we have been through a process here that can be
endorsed as a model for how legislative reform should occur. The huge majority
of amendments you have seen were a result of the consensus of labour and
management practitioners who worked with government officials and, under the
guidance of the Sims task force, created a very responsible and responsive
process and result to legislative reform. We support the process and the
result, with the exceptions that I have mentioned, and we strongly encourage
this committee to endorse the result and pass it into law as quickly as
Senator DeWare: I still have some concerns about the section on replacement
workers. You say now that you feel that there is a compromise here and that you
are satisfied. I would like the recommendation directly out of the Sims report.
On Bill C-66, many people who came before the committee told us that they
thought they could live with the recommendation, as it was written in the Sims
The opening words, something to the effect that "no employer or person
acting on behalf of employers shall use," make it sound as though, right
from the beginning, there is no way, as labour indicates, that they would
delete it altogether if they had their choice. Can you tell me what they have
done that makes you more comfortable?
Mr. Smith: I believe that what you see before you in Bill C-19 is the consensus
wording that was agreed to in the Sims report. Most of our members are very
responsible employers who very rarely get into these kinds of situations
without having thought them through and who recognize that eventually you will
be back in business. We do not believe that the wording, as it is currently
constructed, would affect the majority of our members, given our approach to
Mr. David Olsen, Canadian Courier Association: On balance, I believe FETCO
members had concerns when this provision was first introduced under Bill C-66.
That was one of our very active submissions to the committee that was looking
at Bill C-66. We are pleased to note that the language in the present amendment
to clause 94 does track the language that Sims used. We figured that was the
most non-confrontational way. Everyone was prepared to live with the balance
that Sims had achieved. If the unfair labour practice section tracked that
language explicitly, the FETCO members were prepared to live with that. We are
satisfied that it does.
Senator DeWare: I believe it is because the first sentence in the Sims
recommendation was that there shall be no general prohibition on the use of
Mr. Olsen: The dilemma is that, in order to constitute an unfair labour
practice, the justice drafters would need to express it as "no employer or
person acting on behalf of an employer." That tracks the other unfair
labour-practice provisions that currently exist in the code. They needed to put
it in a mandatory form.
Senator DeWare: Regarding the expression "demonstrated purpose," I did
not feel I received a proper answer from the deputy minister yesterday when I
asked him to explain that.
Mr. Olsen: I believe "demonstrated purpose" is the exact language that
Sims used in its recommendations.
Senator DeWare: It is just a little different: it is "demonstrated to be
for the purpose of undermining."
Senator Maheu: With regard to "the organization favours the establishment
at the representational labour relations board," do you feel that all
board members should be lawyers or, more specifically, labour lawyers?
Mr. Smith: We are pleased that the language makes reference to the fact that
there is a need for industrial-relations expertise.
Senator Maheu: Do you mean the chair and the vice chair?
Mr. Smith: I did not say that. It discusses that with respect to members.
The Chairman: It is the representational nature of the proposed new board of
which you approve.
Mr. Smith: Correct. I certainly do not believe that all the board members need
to be lawyers. The key has to do with industrial-relations expertise. There is
no doubt that there is a high component of legalese, whether we like it or not,
in many board activities. Having said that, there are some people, myself
included, who happen to believe that we can find our way through those troubled
waters from time to time without a law degree.
Mr. Olsen: There might be some benefit in either the chair or the vice-chair
having legal training.
Senator DeWare: They brought up section 47.3, successive contracts for services.
That was not a recommendation by Sims. Why do you think that was introduced in
Mr. Smith: We do not know. That was one of our concerns, that this was simply
not a matter that had been brought before us in any of the deliberations. It
was not a matter of consultation. It appeared in Bill C-66 originally. We
protested it then and we are protesting it now. I have no idea.
The Chairman: With regard to the serious question about having lawyers and
non-lawyers in those roles, do you regard the proposed new board -- or the
present board, for that matter -- as exercising quasi-judicial functions?
Mr. Olsen: The board is most certainly called upon to exercise quasi-judicial
The Chairman: The present one and the proposed new one?
Mr. Olsen: Yes. I do not think there is any dispute about that.
The Chairman: Some legal training would be helpful.
Mr. Smith: We should emphasize again -- and, I think both the union movement and
ourselves would agree -- that that is the place where those issues need to be
resolved, not in the courts. That is one of the reasons why we want there to be
an effective labour-relations or industrial-relations board.
The Chairman: Do you mean a board that is quasi-judicial but representational,
or would you say quasi-judicial and representational? You see what I am getting
Mr. Olsen: Yes. My colleague is right. There is a need for someone with
expertise in labour relations, be it a practitioner or a non-lawyer. If you are
to have lawyers on the board, it would be preferable that they have expertise
in labour law. In the past, lawyers who may have been counsel have been
appointed to the present board, but they did not have a whole lot of labour-law
Senator LeBreton: I have had experience putting together some of these boards in
the past -- some with great success and some not. The bill itself refers to "chair"
and "vice-chairpersons." Furthermore, it states that the chairperson
and vice-chairpersons must have experience and expertise in industrial
relations, but it does not specify the board members. Does that not leave the
door too wide open? Should it not specify that, or does it not matter that
board members do not have experience and expertise in industrial relations?
This is found on page 3 of the bill.
The Chairman: They are nominated, are they not?
Senator LeBreton: Yes, but the language is still not clear.
Mr. Smith: It contemplates that we would nominate people. We would take that
factor into account.
Senator LeBreton: It is not specifically stated, which could be dangerous.
Mr. Smith: We supported the language in that section.
The Chairman: Are there other questions or comments? If not, Mr. Smith and Mr.
Olsen, thank you very much. You have been very helpful to us this evening.
Our final witness this evening is Mr. Doug Moffatt from the Canadian Courier
Association. Please proceed.
Mr. Doug Moffatt, Executive Director, Canadian Courier Association: The Canadian
Courier Association appreciates the opportunity to comment this evening on some
of the features of the proposed legislation. We also appreciate the efforts --
small and, in some cases, quite large -- to make this bill a more balanced,
fair and equitable piece of legislation. As the previous delegation said, it
has been a long and arduous task.
We are an organization of courier companies that was formed 15 years ago to work
and promote the interests of those companies, their employees and their
suppliers in the courier industry.
The organization has a membership of about 120 companies, ranging from one- and
two-person operations to very large, multinational companies. There are
approximately 2,200 courier companies in Canada. Obviously, not all belong to
our association -- much as we might wish that -- and not all of the very large
couriers belong to our association for a variety of reasons. However, as issues
develop, we work with those people, as well.
The industry is extremely competitive and not all small companies grow into
large ones and, unfortunately, not all survive. The industry employs
40,000-plus people and is a major link for companies in both international and
domestic trade. The dependable, predictable and flexible service provided by
the various companies is a major component of any industry in our economy.
Some of the components of Bill C-19 are of concern to our members. We are
concerned because some of the provisions perpetuate undemocratic rules and
introduce measures which make Canadian enterprises that are subject to federal
labour legislation less competitive than their regional or provincial
Let me deal specifically with those portions of the bill which are of concern.
Regarding automatic certification, in the current situation there is at least
some degree of onus on the organizers of a proposed union to demonstrate
support from the workers. The proposed legislation amends the act by adding to
section 99. You are familiar with that proposed section.
Our position is that Bill C-19 should be amended by deleting clause 46. The new
Canada Industrial Relations Board should be compelled to hold representation
votes and unequivocally state that in no circumstance may the board certify a
trade union that has not secured majority support at a representation vote,
held by secret ballot.
Of note, it is ironic that changes to this legislation have been pursued under
the auspices of modernizing the Labour Code. However, at this point, it would
appear that the proposed replacement provision for union certification may run
contrary to general trends. For example, the Province of Ontario recently
announced proposed changes to their union-certification provisions. The thrust
of the Ontario changes are to ensure that certification decisions are based on
votes. This is a simple provision. It is based on democracy and it is in the
It is important to recognize that, in some cases, our members compete nationally
and internationally, and regional variations of labour codes across the country
undermine the competitiveness. If the code is to be modernized, then we suggest
that perhaps the Minister of Labour should lead a roundtable discussion with
provincial labour ministers in order to seek consensus on whether standardized
labour laws and regulations are possible across provinces. This may prove to be
an effective exercise. It would also be innovative.
We know, for example, that several provinces have expressed written concerns
directly to the Minister of Labour over provisions of this bill, as it
currently stands. Most notably, Alberta and Ontario have written to the
minister expressing their concerns. We are not aware of how the minister
responded to his provincial counterparts.
On additional powers to arbitrators, our position is that the uncertainty caused
by allowing arbitrators to make decisions that go beyond the language of the
contract is unacceptable. It can lead to situations where the contract's intent
is ignored and it can in fact limit the ability of employees and employers to
work in harmony. If the contract is silent on any issue, the agreement's intent
should be the guiding force.
On the issue of privacy rights, we congratulate the House of Commons for
amending the bill. We suggested that when we appeared before the committee of
the House of Commons. This is a small step in the right direction.
Currently, there is no mention of replacement workers in the present situation.
It is proposed to amend section 94 of the act by adding the following after
(2.1) No employer or person acting on behalf of an employee the services of a
person who was not an employee in the bargaining unit on the date$
Our position is that the Canadian Industrial Relations Board should not have the
jurisdiction to ban the use of replacement workers. Past actions of the current
board demonstrate that employers have every reason to expect that the board
will consistently characterize the presence of replacement workers as unlawful
During any labour dispute, it is not in anyone's best interests to strand
customers' goods in any courier network. This principle is in fact applied in
the case of those employees working in the grain-handling sector. It makes
sense to apply the same principle to the goods of manufacturers and others,
which would be trapped in the courier pipeline during a labour dispute. The
effect on customers could be drastic and could lead to a loss of volume after a
strike. This, in fact, leads to fewer jobs after a dispute.
The ambiguous language of Bill C-19 leaves uncertainty in our minds about even
the ability of a company to use supervisory staff to clear the network of our
customers' goods in the event of a dispute. This bill should explicitly
recognize the right of management to work to limit damage to customers, as well
as recognizing the union's right to strike. Our preference would be to see the
Regarding payment of benefits during a labour dispute, proposed section 94.3
sets out the requirements for employers to continue benefit payment for an
employee on strike, if the union attempts to make such payment to the employer.
It is our position that benefits are a condition of employment and continuance
during a dispute is akin to continuing wage payment during a dispute. Surely,
economic pressure exerted upon an employer is a consequence of strike action
just as wage loss is an economic consequence for the employee. The provision of
strike pay and payment of benefits during the work stoppage are the
responsibility of the union only. Our preference would be to delete the clause.
The wording, as well, is ambiguous. The word "attempt" can be
interpreted too widely.
On a final note of concern, we also want to express our opposition in principle
to the grain exemption. We believe that it is a dangerous precedent for the
federal government to set, namely, that a particular industry can be singled
out and have their inherent rights to strike and to lock out removed, on a
selective, commodity-by-commodity basis.
In conclusion, we are concerned about some of the bill's provisions, which are
undemocratic, and others which may create an unlevel playing field between
labour and management, as well as to potentially introduce industrial
discrimination into the code. Further disadvantage may be created for federally
regulated companies vis-à-vis provincial competitors, who operate under
The Chairman: What are the bill's provisions to which some of the provincial
ministers have objected, Mr. Moffatt? Do you happen to know?
Mr. Moffatt: I am not privy to their correspondence with the minister. However,
the Ontario bill, which was introduced in the legislature last week, makes
specific reference -- and I have a press release/fact sheet from the Ontario
government -- that employees would have the opportunity to determine in every
case by secret ballot whether or not they wish to be represented by a union.
In the case of a courier operation, two competing companies, one operating in
perhaps Ontario and Quebec or Manitoba and Saskatchewan, and another company
operating only in Ontario, would have two different sets of rules governing how
an organizing attempt would be handled. The company that is interprovincial in
nature and therefore governed by federal legislation would, in our view, be at
a disadvantage. I have members of both those groups in my association.
The Chairman: That is the only provision of which you are aware that the
provinces find objectionable?
Mr. Moffatt: I think that the Ontario government made a couple of other points.
As I said at the beginning, I am not privy to the correspondence between the
The Chairman: What about Alberta?
Mr. Moffatt: I have only the report that Alberta's Minister of Labour has
communicated with the minister about the bill. I suspect that you will have the
minister back at some point.
The Chairman: Yes, he will be the final witness.
Senator LeBreton: You say that the Canadian Industrial Relations Board should
not have the jurisdiction to ban the use of replacement workers. You state that
past actions of the current board demonstrate that employers have every reason
to expect the board to consistently characterize the presence of replacement
workers as unlawful conduct.
Is UPS a part of your organization?
Mr. Moffatt: Yes.
Senator LeBreton: What happened in the UPS strike? Were replacement workers used
Mr. Moffatt: No, they did not use replacement workers. I worked for UPS when
they went on strike in Canada. During their strike in the U.S., which gained a
lot of publicity last year, there was no attempt to use replacement workers.
From my experience in the courier industry, no matter which company it is, if a
customer comes to the door and says that something important to them is stuck
in the system, the management team will go to whatever lengths necessary to
attempt to retrieve that object. They will unload all the trailers and put all
the air containers out so that the packages are readily retrievable. However,
there is quite often a serious delay. The customer coming to pick up his goods
must cross a picket line, and that is not always pleasant for either side.
Senator LeBreton: When you talk about the grain handlers, you make the case
quite rightly that other goods should not be trapped in the pipeline, as well.
Mr. Moffatt: If your mother was in the hospital waiting for a pacemaker, which
was in the hands of a striking courier, it would be as important to you as that
Senator LeBreton: That is right.
The Chairman: I was not here yesterday and I have not really gotten into the
bill in great detail. But as I read it, the only circumstances under which the
replacement workers would be excluded or banned would be where they have been
used for the demonstrated purpose of undermining a trade union's
representational capacity, rather than the pursuit of legitimate bargaining
objectives. As an employer, I could hire replacement workers -- somebody
correct me if I am wrong -- during a strike, unless it could be proven that I
was using the replacement workers for the purpose of doing away with the union.
Mr. Moffatt: I believe the operative word is "demonstrated" and not "proven."
The Chairman: Demonstrated to the satisfaction of the board, I assume. You and I
do not know what the board's membership will be, except that it will be
representational. Employers will have an opportunity to nominate members. On
what basis do you say that that board will tilt in one direction or another?
Mr. Moffatt: I will give you a recent example with which I am familiar -- and
this has gone on for several years in the past. One of our association's member
was the subject of an organizing attempt, and the company was accused of using
unfair bargaining techniques and of attempting to influence their employees.
However, the employees at a hearing submitted statements to the effect that the
employer had not in any way attempted to lead them to reject the organizing
attempt. The Canada Labour Relations Board representative, in our opinion,
acted in a way that demonstrated that his bias was completely against the
company. Our fear is that putting this power to make this decision based on the
"demonstrated" activities of the corporation is a dangerous step. I
must base my observation on the past. I cannot predict the future. I trust that
it will be much improved, but if the past is any evidence, then the board will
eventually become the judge and jury, and its precedent-setting abilities will
build a history very similar to the current board.
The Chairman: Judge and jury is what we were talking about a few minutes ago
with the previous witness. Indeed, they exercise quasi-judicial functions.
Would you be happier with a phrase such as, "The board was convinced on
the basis of the evidence before it" or something like that? We are not
draftsmen, neither you nor I.
Mr. Moffatt: Although I have experience in this business as an elected official
and am currently the mayor of a municipality, I am far from being a lawyer. It
would seem to me to be reasonable to suggest that the board should have to use
the kinds of tests that a court would use to determine the validity of a claim
from either side.
The Chairman: On any question?
Mr. Moffatt: Yes, on any question. I am not trying to draft it, but the search
for that kind of even-handed balance, which the legislation was supposed to be
leading us toward, I suspect, has been lost. If you can recraft that and
perhaps do something with it, you could achieve the balance that we seek.
Senator LeBreton: The word "demonstrate" could be misinterpreted.
Mr. Moffatt: It is ambiguous.
The Chairman: I would not have thought that it was. I would have thought that "demonstrated"
Senator LeBreton: I see "demonstrated" as very uncertain.
The Chairman: There you go. Somebody from Quebec will correct me on this,
perhaps, but I am under the impression that, under Quebec legislation,
replacement workers have been banned for a good long time in that jurisdiction.
Is that correct?
Mr. Moffatt: I believe that to be the case.
Senator Maheu: They have been banned in British Columbia, as well, Mr. Chairman.
The Chairman: You have members in Quebec, I take it.
Mr. Moffatt: Yes. I have a couple of very small companies in Quebec, but they
are not organized at this point.
The Chairman: Does anyone have any reason to believe that that provision, which
has been in the Quebec law since 1978 under the government of René Lévesque,
has been a major issue? I must say that this is purely anecdotal and
superficial and from a distance, but I do not get the impression that it has
been such a big issue in Quebec.
Senator Maheu: No, it has not.
The Chairman: I do not hear the Conseil du patronat saying that something must
be done because it is playing havoc with labour relations.
Senator Maheu: It is the law and it is done.
Senator Kenny: With respect, they would not come here to say it, would they?
Senator DeWare: When you talk provincial jurisdiction, it is a little bit
different from closing down a national airline or your whole banking community
or transportation system.
The Chairman: Provincial jurisdiction, though, is the jurisdiction. Most of this
country's employment is in provincial jurisdiction.
By the way, we did invite the Conseil du patronat to take part in this
discussion, and they declined. We have invited the CNTU or the Confédération
des syndicats nationaux, and they will tentatively come.
Colleagues, are there other questions? I am sorry to have become so discursive
so late at night.
Senator DeWare: I would like to mention, because the witness brought up the
certification situation, that I was very concerned about that, as well.I feel
that our Canadian Industrial Relations Board, the federal board, should set an
example across the country. Certification without a majority vote is something
that goes against all my upbringing and my dealings with the labour movement. I
would suggest that they could have a second vote if they were dissatisfied with
the first one, or if the union was dissatisfied with it. I feel that our
federal government should be setting an example in that area and not following
Mr. Moffatt: Senator, I agree with you entirely. The question about UPS was
raised earlier. I had forgotten that UPS is organized by the Teamsters who, as
most of you know, fell into some disrepute at one point in their history. Under
a presidential order in the U.S., the Teamsters were ordered to have supervised
secret-ballot votes in all of their dealings, which resulted in a massive change
in their management and leadership.
Senator DeWare: It turned it around.
Mr. Moffatt: In that case, we can say that it worked to their advantage, rather
than to their disadvantage.
Senator Callbeck: You mention that in Ontario there have recently been changes
on the certification issue. Did they not require a majority vote before,
whereas now they do?
Mr. Moffatt: The key provision, I believe, is the provision of a secret ballot.
Senator Callbeck: Do they require a majority?
Mr. Moffatt: I think it is 50 per cent plus one, but the ballot must be held in
secret. It is not the union-haul show of hands.
Senator Johnstone: You say in your brief that the ambiguous language of Bill
C-19 leaves uncertainty in your mind about even the ability of a company to use
supervisory staff to clear the network of our customers' goods in the event of
a dispute. You also say that this bill should explicitly recognize management's
right to work to limit damage to customers, just as it recognizes the union's
right to strike. You state that your preference is to see the clause deleted.
If that is not possible, would you suggest how this ambiguous language might be
clarified to your satisfaction?
Mr. Moffatt: As I said earlier, I will not attempt to be your legislative
draftsman. However, the chairman has a much different definition of the word "demonstrate"
than I have. I think the wording should be changed to require both sides to
adduce court-style evidence, rather than using such words as "demonstrate."
I have seen illusionists demonstrate. What you see is not always what you get.
Senator Johnstone: You have suggested that you do not like the word "proven."
The Chairman: Would you accept the word "establish"?