Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 14 - Evidence - June 10, 1998 (evening sitting)


Upon resuming.

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.

[Translation]

Captain Yves Filion, President, Executive Council, Montréal Local, Air Canada Pilots Association.

[English]

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 issues.

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.

[Translation]

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.

[English]

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 bargaining system.

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 principle-based approach.

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.

[Translation]

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.

[English]

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 safety.

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.

[Translation]

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.

[English]

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 condition.

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 that.

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 much.

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.

Please proceed.

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 of changes.

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 merged group.

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 another.

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 have.

The Chairman: Thank you.

[Translation]

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 agreement.

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.

[English]

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 unfortunate dispute.

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 to this?

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 place.

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 an agreement?

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 it?

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 problem?

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 heard.

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 Labour Code.

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 this jurisdiction.

I should add that in my day job, I am the vice-president of human resources at the CBC.

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 brief.

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 consensus.

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 process.

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 it contains.

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 possible.

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 report.

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 industrial relations.

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 replacement workers.

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 this bill?

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 functions.

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 at here.

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 expertise.

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 counterparts.

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 right direction.

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 subsection (2):

(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 conduct.

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 clause deleted.

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 different codes.

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 ministers.

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 there?

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 grain shipment.

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" meant "proven."

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 this route.

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"?

Thank you, Mr. Moffatt.

The committee adjourned.