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

Issue 15 - Evidence - June 16, 1998


OTTAWA, Tuesday, June 16, 1998

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-19, to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, met this day at 10:00 a.m. to give consideration to the bill.

Senator Lowell Murray (Chairman) in the Chair.

[English]

The Chairman: Senators, this is our fourth meeting pursuant to our mandate to consider Bill C-19.

We will be sitting this morning until approxomately 11:30.

[Translation]

For the next 45 minutes, it will be our pleasure to hear from representatives of the Quebec Bar Association and the Canadian Bankers Association. Speaking on behalf of the Quebec Bar are Marie-France Bich, Professor of Labour Law at the University of Montreal and Chair of the Labour Law Committee of the Quebec Bar Association, and Mark Sauvé, a lawyer with Legislative Services.

Mr. Sauvé will make a brief opening statement. Welcome to both of you. Please proceed.

Mr. Mark Sauvé, Lawyer, Legislative Services: The Quebec Bar Association is the professional association representing Quebec lawyers. It has close to 18,000 members. The primary mandate of our Association is to protect the public and it is in this capacity that we come before you today.

In the past, we stated our position on the provisions of Bill C-66. You will recall that we sent a letter to the minister responsible for the proposed legislation on December 9, 1996. Basically, Bill C-19 picks up where the previous bill left off. We made known our views on this bill in a letter to Labour Minister Lawrence MacAulay last May.

The Quebec Bar has always stressed the importance of safeguarding judicial or quasi-judicial independence. This is a sine qua non condition if the public is to accept a society's justice system. Accordingly, persons or institutions exercising judicial or quasi-judicial functions must benefit from a status that guarantees their independence. They must be able to perform their duties without having to contend with political or economic interference, whether from government, from one of the parties involved or from a third party.

Pursuant to Bill C-19, the chairperson and vice-chairpersons of the Board would be appointed to hold office for terms not exceeding five years while other board members would be appointed for terms not exceeding three years. As everyone knows, the members of the Canada Labour Relations Board are called upon to perform important quasi-judicial functions and to rule on questions of law. Thus, they should hold office for a sufficient period of time to ensure them the independence needed to perform their duties.

If board members enjoyed security of tenure, at least for a sufficient length of time, they would be shielded from any discretionary, arbitrary or abusive intervention from the executive branch that appointed them to office.

With respect to terms of office, we find the proposed legislation somewhat lacking in this area. On the one hand, the terms of office seem too short, while on the other hand, the bill mentions only how long board members can serve. In our opinion, the chairperson and vice-chairpersons should continue to hold office for at least ten years, while other board members should be guaranteed at least three-year terms.

Bill C-19 does away with the Canada Labour Relations Board and replaces it with the Canada Industrial Relations Board which appears to have more or less the same duties. Pursuant to clause 87 of Bill C-19, the members of the Canada Labour Relations Board cease to hold office when the new legislation comes into force.

Given the importance that we ascribe to the principles of independence and impartiality and to the need to strengthen the status of decision-makers whose rulings affect human rights, a number of questions come to mind. This legislative provision which limits the terms of members of a quasi-judicial body or administrative tribunal begs a number of questions, to wit: Why does the legislator feel the need to end prematurely the terms of office of members of the Canada Industrial Relations Board? What reason could there be for imposing this limit, given that the duties of the new board will be similar to those performed by the former board? Will all of the members of the former board be appointed to the new one? If not, what criteria will be used to retain certain members and dismiss others?

Specifically, we feel that clause 87 adversely affects the status of board members who perform important judicial or quasi-judicial functions and has the potential to undermine their independent status in the eyes of those persons subject to the board's jurisdiction.

Accordingly, in keeping with the principles stated earlier, we would like clause 87 to be withdrawn and for the terms of office of current board members to be continued.

Ms. Bich will now conclude our presentation.

Ms. Marie-France Bich, Professor of Labour Law, University of Montreal, and Chair of the Labour Law Committee of the Quebec Bar Association: Following up on what my colleague said, these days, given the increase -- some would say decrease -- in the number of administrative and quasi-judicial tribunals, the only contact that most citizens will have with the justice system will be through these administrative tribunals and the brand of justice they apply.

In light of this fact, as the Supreme Court of Canada has noted on a number of occasions, the independence of quasi-judicial bodies is a sine qua non condition for ensuring their impartiality. What is more, not only must these decision-makers or adjudicators be independent and impartial, they must also be seen to be independent and impartial, since trust in a system stems from the image that the system projects.

Thus, to guarantee independence and impartiality, it is not enough to simply ensure that members of these quasi-judicial bodies are competent, honest individuals, which assuredly they must be. The legislator and the Quebec Bar must urge senators to consider this matter. Lawmakers must put in place structural safeguards to ensure the competence and personal integrity of members of administrative tribunals and to ensure that they are perceived as such.

Regrettably, as my colleague pointed out, in view of its shortcomings, Bill C-19 would condemn the Canada Industrial Relations Board to being a fragile institution, structurally speaking, given the limits on the terms of office of board members and the discretionary appointment process which, unfortunately, could leave justiciables with the impression that the board might be susceptible to political pressures.

We are not saying, of course, that this will happen. We are merely saying that in justice matters, appearances are critically important. The rules governing the appointment and terms of office, in this instance the brief terms of office, of the members of the new Canada Industrial Relations Board appear to be such that the independence and even the impartiality of board members could be called into question.

Obviously, there are those who feel that since governments and lawmakers change, it is normal for the instruments of the executive to change as well and for persons who are closer, politically or ideologically, to the governing regime to be appointed to office wherever possible.

To these people, we would say two things: first, Canada has prided itself for many years, and rightfully so, on having a neutral public service, where the only requirement for the job is competence and ability. Indeed, our country takes great pride in its public service.

It would be unfortunate if this neutrality did not extend to quasi-judicial bodies or administrative tribunals. Since they exercise extremely important judicial powers, they should be equally neutral. The functions of administrative tribunals like the future Canada Industrial Relations Board should not be politicized, either directly or indirectly. Moreover, it is important to remember that although they are part of the executive branch of government, quasi-judicial bodies are not agents of the government. They are not components of the political executive.

Quasi-judicial institutions receive their mandate from the legislator and are accountable to it for their actions and decisions. If a new legislator wishes to change the mission of quasi-judicial bodies, as in the case here with the Canada Industrial Relations Board, then it should amend the legislation. This is true generally for all quasi-judicial or administrative tribunals as well as for the future Canada Industrial Relations Board. For example, if the legislator happens to be dissatisfied one day with the board's interpretation of the new clause 94, which prohibits the use of strike breakers, then the solution is not to replace members to ensure the presence on the board of persons who hold different views. Rather, it is up to the lawmakers to bring in legislation to clarify or amend a provision which is apparently unclear.

It may be more complicated to change the legislation, but it is also a more transparent and more democratic approach, and the advantage is that the independence of board members would be preserved.

Generally speaking, the opinions voiced today by Mr. Sauvé and myself on behalf of the Bar are shared by the entire legal community which has long been calling for the depoliticization of the process used to appoint the members of all quasi-judicial bodies and for the more stringent enforcement of the principle of neutrality that already applies to the rest of the public service.

Virtually everyone agrees on what needs to be done to depoliticize the process: extend terms of office, limit the right to terminate board members or the right not to renew their mandates, give sufficient prior notice before deciding not to renew a member's term and institute a more transparent appointment process by creating a committee. There is no mention of creating such committee in Bill C-19. The proposed legislation does nevertheless have some merit, in that it provides for some disciplinary measures and for the appointment of a superior court judge to conduct an inquiry. A similar type of measure had been proposed in Bill C-49. However, that particular bill died on the Order Paper in 1996.

Since a first step has already been taken to distance the political machinery of government from quasi-judicial tribunals, the Bar would like to go one step further and examine such issues as terms of office, how these terms are or are not renewed and the general conditions governing the appointment of members to administrative tribunals and in this instance, to the future Canada Labour Relations Board.

Senator Kinsella: I fully agree with the witnesses this morning as to the importance of maintaining the board's neutrality. That is a very important consideration.

I would like the witnesses' opinion on three issues. My first question concerns the experience and expertise of board members. As you indicated, the bill requires only the chairperson and vice-chairpersons to have experience and expertise in industrial relations. There is no such requirement for all other board members.

The board will wield considerable power. Consider clause 46 pursuant to which the board may certify a trade union despite a lack of evidence of majority support of union members. If the board does in fact have this power, in my view, it is even more important a fortiori that members be well versed in the principles of natural law and so forth.

Second, clause 9 of the bill amends section 22 of the Act. This provision concerns the standard of review with respect to decisions of the board. Do you agree with the system in place? The court has very limited powers to review a board's decision.

My third question also concerns clause 46. I am curious to know whether you believe this provision is consistent with the constitutional right of freedom of association as set out in the Charter.

Mr. Sauvé: As far as experience and expertise are concerned, clearly the Board will be called upon to rule on important legal questions. The Quebec Bar is of the opinion that lawyers are the ones best qualified to resolve such issues. Obviously, they have the proper training and competence. We find it unfortunate that persons without any basic legal training can serve on various administrative bodies or tribunals, pretend to be legal experts and rule on legal matters where the implications for members of the public could be enormous.

The Bar has always stressed the importance of experience, noting that this is in the public interest. When it comes to resolving legal matters, as the Board will be called upon to do, I believe the public has the right to demand that decision-makers have some kind of legal training.

Senator Kinsella: Then you no doubt agree with the government's position on Bill S-5 concerning the Human Rights Commission. This bill stipulates that members of new tribunals must be members of a bar association.

Mr. Sauvé: Obviously, given that these administrative tribunals perform multiple functions, it is impractical to require all members to be lawyers or members of the bar. However, when it comes to ruling on questions of law, we feel that someone with a legal background, preferably a member of the bar, is the right person for the job. It all depends on the issue that needs to be resolved. While law assessors are acceptable, we believe persons called upon to resolve legal matters should have a legal background.

Ms. Bich: I feel that as far as the positions of chairperson and vice-chairpersons of the future board are concerned, these persons should be required to have some legal training.

As for those members who assist the chairperson or vice- chairpersons, as the case may be, no such requirement is necessary. Surprisingly enough, however, the legislation does not stipulate that members must have experience and expertise in this particular area. These members will be called upon to represent both the interests of management and unions, but it is unclear that persons with recognized expertise in this area will in fact be appointed to the Board.

My comments also stem from something that was contained in the report of the Task Force on Labour Relations entitled "Seeking a Balance" which led to the drafting of this bill. Substantially reducing the terms of office of Board members -- in the case of the chairperson and vice-chairpersons, from 10 years to 5 years, and in the case of other members, from 5 years to 3 years -- amounts to implementing a kind of revolving door policy. This legislative decision could have some major repercussions.

The Task Force pointed out -- and this concern is well founded -- that such short terms could considerably restrict the pool of qualified candidates. Who will be willing to accept an appointment for a period of three to five years, with no guarantee of reappointment? This could undermine the competence of future candidates or at the very least restrict the pool of available candidates, instead of fostering the development of a body of professional adjudicators with considerable expertise. In other words, the danger is that the Board could consistently be made up of neophytes. Obviously, this could impede its operations.

Mr. Sauvé: As for reappointing the members of an administrative tribunal, this is an extremely sensitive issue as independence and impartiality come into play. A member nearing the end of his term of office will always have one question in mind: what should I do to ensure that my term will be renewed? There are no pre-established criteria for reappointment. Since appointments are discretionary, the member will always feel somewhat vulnerable toward the end of his term.

Of course, the government, the executive arm, wants to maintain its discretionary authority over appointments. The Quebec Bar maintains that a transparent reappointment process is needed, that criteria should be established in advance and that members should be re-appointed or not reappointed on the basis of these criteria.

Quebec legislation governing administrative justice contains a mechanism, albeit by no means perfect, whereby a member of an administrative tribunal in the province is automatically reappointed for a period of five years, unless otherwise notified three months' prior to the expiration of the term, thereby ensuring some measure of continuity to the process and reinforcing the adjudicator's status. This sends a message to the public that members are more independent.

[English]

Senator DeWare: I am concerned that the board will be dismissed when this act comes into effect.

Several board members have outstanding mandates. One has a six-year mandate remaining on the present board; two have four-year mandates; three have three-year mandates; and three have one-year mandates left. I see nothing in the act about severance pay or remuneration for those people.

When appointed, the chair and vice-chairman must leave their jobs and live in the national capital. Full-time board members must not hold any other employment or office for which they would receive remuneration. Even the part-time vice-chairman cannot hold any other employment. They must give up whatever they are doing for the three or five years.

It appears that there is a two- or three-year learning curve for all members when appointed. Just when they finally are able to be effective, they could be removed and replaced.

I see problems in two areas. The first is that, upon removal, board members will receive no remuneration. Consider the situation of someone appointed at age 55 for a ten-year period. They must give up their employment and move to the capital city. Five years later, their position may be gone under this bill and there will be no remuneration for them.

I am also concerned about the late appointment. I agree with your statements.

Ms Bich: In turn, I agree with you. The present members of the board have less protection than is afforded to employees under Part III of the Canada Labour Code, which seems somewhat paradoxical. They have much less protection in terms of dismissal, which this amounts to, as well as in terms of severance pay.

Senator DeWare: Is this the first time that a modification of an existing statute has led to the wholesale replacement of adjudicative or quasi-judicial tribunal members with new ones?

Ms Bich: Apparently it is not the first time, although this is by no means a common occurrence.

Apparently it happened during the 1980s, when the Immigration Appeal Board was replaced by what is now a commission on the status of refugees. The same kind of technique was used to -- pardon my expression -- get rid of the previous members. They simply abolished the Immigration Appeal Board and replaced it with a new board, which had the same powers. That gave rise to some judicial action. A case was reversed by the Federal Court of Appeal, but the trial division held that this way of doing things indeed prejudiced the independence of the tribunal. Unfortunately, for practical reasons, the Court of Appeal overturned that decision.

The Chairman: Is that the most recent case on that point?

Ms Bich: It is the only case of which I know on that precise point. Other Supreme Court of Canada cases deal with the independence of administrative tribunals.

[Translation]

The Chairman: Would you go so far as to say that these provisions violate the principles stated by the Supreme Court of Canada with regard to judicial independence and that if this case were brought before the Supreme Court of Canada, these provisions would be struck down?

Mr. Sauvé: No, I would not go that far. It would not be much of a stretch for a lawyer to argue in court that these principles had been violated. However, I would not issue a legal opinion on this.

The Chairman: The President of the Bar, Mr. Francoeur, sent us a letter in which he alluded to the principles oft-stated by the Supreme Court of Canada.

Ms. Bich: The Supreme Court of Canada has never ruled directly on this point. However, in a number of cases, it has stated that structural or institutional independence is a sine qua non condition of impartiality, which itself is necessary in order to ensure natural justice which administrative tribunals like the board and others must observe.

The various rulings handed down by the court are somewhat vague on the subject. At times, the court has held that given the length of terms of office, tribunals were sufficiently independent. Conversely, in 1995, it ruled in Canadian Pacific v. Masqui Indian Band that tribunal members performing taxation-related functions did not have the required independence because they were totally dependent on the Indian band for their appointment and had no security of tenure.

Therefore, as my colleague said, some of the provisions in Bill C-19 could indeed prove to be contentious.

The Chairman: I would like to thank you for coming here today to give us a professional and legal perspective on this question.

[English]

Senator Grafstein: Mr. Chairman, I am curious about the comment that someone with a three-year appointment cannot serve appropriately. There are other models where people, for short terms, serve with great distinction. In the United States, some people have served for a short period of time under a particular president, and they have done so most successfully. Is there not an opportunity here for great practitioners in bankruptcy, legal counsel, to take a short term out of their busy practices and serve with great distinction? Is that not one of the thoughts that motivated this legislation, namely, to have a growing and wide pool of experience in the practice that can be called upon to provide advice on these issues?

Speaking from personal experience, you might find an excellent practitioner who is prepared to sacrifice his practice for one, two or three years to give the public the benefit of his views and then return to public practice. What is wrong with that model?

On the one hand, you have talked about independence. However, on the other hand, there is a benefit to being able to draw on people who would not be prepared to give a life-long commitment to the public service, or an extended period in public service. What is wrong with that model?

[Translation]

Ms. Bich: That is certainly a potential advantage to this system. You are quite right in saying that this does indeed happen in United States. I must, however, point out that in the United States, administrative tribunals do not advocate this approach, but rather favour longer terms of office to ensure member expertise in the area of adjudication.

Moreover, the advantages of this model must be weighed against those of a model which favours longer terms of office. The important thing is to strike a balance. The Quebec Bar is not saying here that administrative tribunal members should have the same ironclad security of tenure as superior court justices. However, there is a balance to be struck between overly short and excessively long terms of office, that is we must find some sort of middle ground between the model that you describe and one which would guarantee independence and a greater appearance of independence in the minds of those under the court's jurisdiction. The latter must have confidence in the system.

In my view, it is possible to find that middle ground. The Bar is of the opinion that the terms of office proposed in this bill are too short, making this necessary balance, with the advantages and stability it presents, impossible to achieve.

[English]

The Chairman: We will have to leave it at that, senator.

Thank you for the important, professional perspective that you have brought to the table, and for coming here today.

Our next witnesses are representatives of the Canadian Bankers Association. Welcome to our committee. Please proceed, Ms Leamen.

Ms Nancy Leaman, Director, Human Resources Policy, Canadian Bankers Association: Mr. Chairman, I should like to point out that Mr. Alborino is the senior manager for employee and industrial relations at the Bank of Montreal, as well as being past-chair of the Canadian Bankers Association Labour Code Standing Committee.

We are pleased to be here today because the banking industry has two outstanding concerns about Bill C-19. These arise out of the proposed section 99.1, which deals with the board's power of remedial certification, and the proposed 109.1, which makes provision for union access to off-site workers.

With respect to clause 99.1 of the bill, we continue to believe that the board should not have the power to penalize an employer who is considered guilty of engaging in an unfair labour practice at the expense of employees who may or may not want a union by ordering automatic certification. We strongly recommend that, in such cases, the board should be required to supervise a secret ballot vote.

You will find our further explanation and proposed wording for amending this provision in the executive summary, which is attached to the copy of our brief.

However, we wish to spend more time today on the issue of off-site workers, a matter that was not discussed prior to the legislation's introduction. Although it is the banks' view that this provision is premature, we appreciate the legislative concern that trade unions should be able to function appropriately as new ways of working develop and proliferate. We assume that clause 109.1 is an attempt, at least in part, to facilitate union access to employees who telecommute, many of whom work at home.

The banking industry supports and respects freedom of choice and free collective bargaining where a majority of employees freely choose that method of handling the employer-employee relationship. However, we continue to see three major problems with clause 109.1.

First, the principle of consent regarding the use of employees' names and addresses is missing from the proposed clause. We recognize that clause 109.1 has been amended twice in attempts to deal with the issue of employee privacy since its predecessor, Bill C-66, was first before this committee in April 1997.

Unfortunately, neither of these changes gets to the heart of the personal privacy issue that has been at stake in this section from the beginning. A fundamental principle in the growing body of legislative guidelines and standards on personal privacy, in Canada and elsewhere, is the principle that an individual's consent must be obtained before information about that individual can be provided to a third party.

Both amendments to the proposed section 109.1 miss this fundamental point. The bill still does not require the consent of individual employees before their names and addresses may be provided to a third party, in this case, to a union. In our view, the bill should incorporate this necessary and fundamental principle and should charge the board with responsibility for ensuring adherence.

Instead, proposed section 109.1 continues to leave responsibility for protecting the privacy of employees to the discretion of the new Canada Industrial Relations Board, an agency with no expertise in matters of privacy, nor should it be required to.

Indeed, the latest amendment from the House of Commons committee on Human Resources Development on proposed subsection 109.1(3)(a) proposes that if the board believes that the privacy and safety of employees is in danger of being compromised, the board may give employees the opportunity to refuse to provide their names and addresses to a union. Note that the proposed section uses the word "may," not "shall," leaving the matter entirely to the board's discretion or inclination. Note also that privacy is combined with safety, so if safety is not an issue, but privacy is being undermined, the board would not be obliged to do anything about the privacy infringement.

You will note that, rather than incorporating the fundamental principle of consent at the beginning of the process for allowing access to off-site workers, the bill only allows the employee the right of refusal if at some point the board believes that privacy and safety cannot otherwise be protected. I refer you again to the executive summary attached to the text for our amendment to proposed section 109.1(1), which builds the principle of consent into the law.

Our second concern relates to a potential violation of the employers' privacy and freedom of speech. Proposed section 109.1 potentially allows a union to communicate with employees electronically. This would not be of concern to us if employees provide their consent to be approached at their personal Internet addresses. It is a concern to us, however, because it allows the possibility that a union -- that is, a third party -- would have access to an employer's internal E-mail system and the proposed section 109.(1)(2)(b) gives the board authority to require an employer to transmit the information the union wishes to communicate to the employees by the employer's E-mail system. We are opposed to both such possibilities, which constitute, we think, unwarranted third-party intrusions in an employer's internal environment. As well, if an employer is required to convey the union's message -- even if prefaced by a disclaimer indicating that the message had been ordered by the board and the views expressed are not those of the employer -- the employer's voice and views become subtly linked to the third party's voice and views. Such intrusion is not allowed in the non-electronic environment. Why should it be introduced into the electronic environment?

It is also our understanding that interference with private communication mechanisms could violate the employer's freedom of expression under the Charter of Rights. The potential requirement for an employer to convey the union's message is surely unnecessary if the union has been provided with the names and addresses of consenting off-site employees and has thereby the means to reach the targeted employees by mail, courier, personal visits, Internet or other means.

Thus, we recommend that proposed section 109.1(2)(b) be deleted from Bill C-19.

We point out that the effect and implications of 109.1(2)(b) do not appear to have been thoroughly analyzed against, nor have they been coordinated appropriately with, the existing provisions of the code. The proposed provision represents a significant departure from the current provisions in Part I of the code, in terms of access to employees by a union for organizing purposes. At present, subsection 95(d) of the existing code prohibits union solicitation on the employer's premises during working hours. Subsection 95(d) has been interpreted to allow solicitation on the employer's premises on the employee's own time as long as the activity does not interfere with the efficiency of the employer's operations. It is not clear how the new section 109.1 would be interpreted by the board in relation to the long-standing interpretation of subsection 95(d) for employees who may be working at home or on the road and who may be reached by the employer's electronic communication system, if the board so orders. For example, if the employer were to be ordered to convey a union's message electronically, would this be during working hours? Would the employee receive, read, and respond to it during working hours? What are the working hours of an employee working off-site?

Thus, we recommend that proposed subsection 109.1(2)(a) include the phrase "in keeping with section 95(d)".

There are many issues relating to off-site workers and the use of the electronic highway that simply have not yet been fully explored, either in a broad sense or in more specific ways, as seen in this bill. We urge the members of this committee to take the necessary steps to introduce appropriate protections and principles that are needed in proposed section 109.1 and to inject some caution in an area in which we have as yet little experience and expertise, that is, the regulation of the electronic highway in employment.

Mr. Chairman, we wish to draw these matters relating to Bill C-19 to your attention. We appreciate having had the opportunity to appear before you and would be pleased to answer questions.

The Chairman: Will you satisfy my curiosity on one point? Of 221,000 employees in the banking business, only 2,500 are organized or in a union, and 1,800 of them are in one unit. What do these people do? What line of work are the unionized bank employees in?

Mr. Santo Alborino, Past Chairman, Labour Code Standing Committee, Canadian Bankers Association: That is the current number right now. It varies. We have branches, so you have employees such as customer service representatives, assistant supervisors, supervisors, loan officers. The bulk of unionized bank employees work in the Visa Centre of the Bank of Commerce.

The Chairman: Most of these unionized employees are in one bank?

Mr. Alborino:They are in the Laurentian Bank, as well.

The Chairman: They are in the Visa Centre, which is clerical work, I presume?

Mr. Alborino: We must be cautious about using the phrase "clerical work." I do not know your definition of that.

The Chairman: What is a customer service representative? Is that what we used to call a teller?

Mr. Alborino: No. That is an employee of the bank who provides counsel and advice on financial matters to a prospective customer. It can vary from investments to loans.

The Chairman: Most of the unionized employees are in one or two banks, are they?

Mr. Alborino: Most of them are in two specific banks.

Senator Kinsella: I agree with what the witnesses have said about off-site workers for the reasons articulated. They spent most of their presentation on that, so I will leave it for others to clarify anything that needs clarification. I understand their position, and I concur in it.

Let me turn to your other issue, about which you did not speak as much. I have a great concern with proposed section 47. You have described it in your brief as "remedial certification."

My concern -- and I want your opinion on this -- is that this is in violation of section 2 of the Canadian Charter of Rights and Freedoms. I think it is in violation of that Charter right -- and I want to know if you agree -- because the right of association includes the right not to associate. You need not associate in terms of membership, but you must pay the union fee where a union has been certified. That, therefore, is generally based on either the union having the majority of cards signed by the employees or there having been a representational vote with the majority wanting that union to be the exclusive bargaining agent.

Under section 1, which lists some of the principles of our Charter, a right to association can be limited, as can other rights, if certain tests are met. However, that is all based upon a majority vote, either through a representational vote or through the union having the majority of the members signed up.

If the board exercises this power under this bill and certifies a bargaining unit as a remedy, do you agree that such a remedy would never meet the test of Oakes, because it is like using a sledgehammer to kill the proverbial mosquito. It would not be the minimum interference, particularly when there is a whole menu of other remedies available.

When a Charter violation is flagged in legislation, we must ensure that we have good evidence from experts like yourselves on that issue. Would you speak on that for a moment?

Mr. Alborino: We have had experience in dealing with a number of unions over the last 25 years. There is a misconception that banks do not know anything about unions. We are probably the only industry that has dealt with as many unions as there are unions in Canada. Over the last 25 years, we have dealt with most of them. We have subscribed to the Rand formula and we truly believe that it is an appropriate one.

I must agree with your comment that there are many remedies right now. Most of them are quite effective. We have witnessed and have been a party to some in the past, when there was misconduct on the part of the employer with respect to a union's efforts to try and represent the employees.

We strongly believe that democracy should prevail and that, at all times, a vote must be requested when deciding whether the majority of employees want to join a particular union. There is no other democratic way of doing that.

The board has, right now, sufficient powers to take all the remedies necessary to stop an employer from an unfair labour practice, the least of which would be remedial certification. I do not think that two wrongs make a right. We should not sacrifice the rights of employees to decide for themselves for the purpose of promoting, in this case, the desire of one particular union or several unions to represent the employees.

I do not want to comment specifically on the Charter of Rights, but I suggest that there would be evidence for a potential challenge if the board decided, for a remedial certification, not to allow the employees to have the freedom of choice to join a specific union.

Senator Beaudoin: Perhaps I missed the point here. In the Oakes case, the court states that the remedy must be proportionate, obvious and minimal. The objectives should be urgent, and so on.

Do you agree that the bill, as drafted, complies with that Oakes test? It is not obvious at first glance.

Mr. Alborino: We would agree with your comment. It is not obvious at first glance.

Senator Beaudoin: It may be debatable, mind you, but the fact is that democracy is right in the centre of the Canadian Charter of Rights and Freedoms under section 3. Of course, it applies to federal and provincial elections. When you are concerned with labour law, the freedom to associate or not to associate is a fundamental right. It must be based on some democratic principles.

My only reaction is that it is not too obvious at present in the clauses contained in Bill C-19.

Mr. Alborino: I speak from experience on this; and I imagine that my colleagues on the labour side would agree, that anything that is forced upon anyone, without having the freedom of choice, usually does not work well. In any type of tripartite relationship, the three parties must be in agreement.

There is a breakdown in that type of relationship at the outset when we provide the board with such remedial powers without consulting with the most important constituencies of that tripartite relationship.

Senator Beaudoin: It gives an administrative tribunal tremendous power. That administrative tribunal is not a section 96 court at all, but it may have some very great powers.

You are inclined to conclude, like me, that it is not obvious?

Mr. Alborino: I would agree with you.

Senator Beaudoin: That is my point.

The Chairman: We will leave it at that. Thank you, witnesses, for your views on this important bill.

Our next witness is from the Canadian Association of Labour Lawyers.

Mr. Michael Gottheil, Vice-President, Canadian Association of Labour Lawyers: Honourable senators, thank you for the opportunity to appear here. Members of the Canadian Association of Labour Lawyers are lawyers who represent unions and employees throughout Canada. At present, we number approximately 250 lawyers.

I have provided to the committee some materials which are, in essence, the same materials that we provided to the House of Commons committee. You will notice in those materials that the association was seeking certain amendments to Bill C-19 at the Commons committee level. Unfortunately, some of those amendments were not considered and were not put forward.

At this point, we would request that the focus be placed on section V of our materials which, in English, is found on page 4; and the section V in French is about 8 pages in from the beginning of the French version.

Section 5 sets out the points in the bill that we think are extremely important. Given the importance of this modernizing piece of legislation, if I can call it that, we would request that this bill be given speedy approval and passage, notwithstanding what we would have liked to see in terms of amendments.

Our concern here today is to support the legislation. Though not perfect, we think that it is an important piece of legislation that should be passed.

The Canadian Association of Labour Lawyers has been involved, along with others in the labour relations community, in making representations and submissions at the Sims task force level through to the Commons committee, and now before this honourable committee.

In our respectful submission, Bill C-19 is not perfect. However, the changes are long overdue. They arose out of a consensus of those who work with the code and within the federal labour relations community.

Bill C-19 has been described as a product of four years of hard work by those in the labour relations community. It has actually been in the works for longer than four years. I recall, as early as 1988, participating in joint union-management committees coordinated by Labour Canada. This bill is really a product of almost 10 years of work by those in the labour relations community.

In our respectful submission, it is truly a mark of success that the stakeholders in the labour relations community have reached a consensus, since agreement, compromise and consensus are what good labour relations are really all about. It would be extremely unfortunate if this work did not produce the long-needed reforms.

The key reforms are: the expansion of the powers of an arbitrator; the remedial certification; the just-cause provision in the period between certification and a collective agreement; the right to access of information by unions; and section 18.1, which permits the board, when there is a combination of bargaining units, to decide issues if the parties are unable to reach an agreement.

In our submission, the process involved in the development of this bill was commendable. The Sims task force engaged in a truly consultative process. While the bill is not perfect, it is a product of compromise, consensus and balance, which are the most important features of labour relations.

Senator Kinsella: I should like to have the witness focus on the law, rather than give us his social analysis.

Let us go to proposed section 46. Do you think it is Charter-proof?

Mr. Gottheil: The remedial certification? Yes, I do. A few points should be considered here.

First, it is important to remember that the remedial certification is not a remedy provided by the board to penalize an employer who has committed an unfair labour practice. That is not the purpose of the section.

We have had similar provisions in Ontario as long as I have been in practice. Five provinces have similar provisions. They are used extremely rarely. In Ontario, unions are successful in less than five cases a year.

It is important to note that this is not a penalty that the board imposes on an employer for committing an unfair labour practice. The section is triggered by illegal conduct by the employer: illegal conduct that, in essence, undermines the ability of the normal democratic processes to judge the employees' wishes. That is the first thing that must be remembered.

Second, there will always be, in any democratic process, people who dissent; that is, those people who do not agree with the successful union. If a union is successful through a certification drive with 51 per cent in a vote, 49 per cent of the people did not wish to have the union. That does not mean that their rights to freedom of association have been violated. A distinction must be made between the purposes of this section and the notion of freedom of association.

Finally, the Northwest Territories case that dealt with the issue of freedom of association and the Charter, in the context of labour relations, has often been referenced. In that decision, the Supreme Court of Canada said that the right to choose one's bargaining agent within the employment context is not a right that is protected under the Charter.

That was a case in which the unions went to the Supreme Court on the question of legislation forcing employees to be represented by a particular union. The union said that it was a violation of the employees' freedom of association that those employees could not choose amongst which unions they wished to be represented by. The Supreme Court said that freedom of association under the Charter does not provide the protection to choose one's bargaining agent.

Given that five provinces have such a provision in their legislation, it has been used sparingly and it is not a punitive, but a remedial, measure. Since the Supreme Court has ruled on issues with respect to the choice of bargaining agents, it would be Charter-proof, in our respectful submission.

Senator Kinsella: In any of the provinces where an analogous provision is to be found, to your knowledge, has there ever been a challenge against those provincial statutes? My research indicates there has not been a Charter challenge against that provincial statute.

Mr. Gottheil: I am not aware of any Charter challenge.

Senator Beaudoin: I asked this question of the previous witness and he concluded that the answer was not obvious. I detect from your tone that in your opinion it is obvious that the right to choose one's union is not protected by the freedom of association.

You said that the Supreme Court determined that the right to strike is not included in the freedom of association. It was a close decision, but it was there. You say that the right to choose the unit is not included in the right of association.

If that is the case, what is the latitude of the labour board? May they do what they want?

Mr. Gottheil: Being a lawyer who represents and works with trade unions, we obviously might have found the Supreme Court decision unfortunate.

Senator Beaudoin: You are not alone.

Mr. Gottheil: Not everyone believes that Parliament can legislate that a trade union represent a group of employees.

Under the remedial certification provision, it is not so much that the board would designate that all employees, for instance, in the banking industry, be represented by one union. The proposed legislation gives the board the power to remedy an illegal action by an employer who has undermined the normal democratic tests of employee wishes. That is the key.

In my experience in dealing with these kinds of cases, the boards in the other jurisdictions -- especially in Ontario, where I have the most experience -- are always concerned about whether it would be possible to provide some other remedy, other than automatic certification. The automatic certification is always the last resort.

If, for instance, the board felt that they could issue some order, posting or notice to employees, which would remedy the undermining of the democratic process, the board would do that and order a vote, as opposed to imposing the certification.

The other thing is that the code provides for employees to change unions or to decertify unions. It is not as if it is a lifelong relationship, even where there is an automatic certification. Employees have the right to decertify their union if they truly believe that it is not what they want.

Senator DeWare: I am always interested when I read these. They never say anything about section 46 or any of the sections about the unfair labour practice of the employees. They always mention unfair labour practices of the employer. There never seems to be a reversal.

I will go to your strike-breaker provision. I am interested in the fact that you use the term "strike breakers" instead of "replacement workers." I am surprised that your organization would do that. You say here that the use of strike breakers is diametrically opposed to the basic purpose of the code because it prolongs industrial conflict, prevents the holding of free and meaningful collective bargaining and leads to violence, and so on.

What if replacement workers are not allowed in a national strike? We are talking about federal law dealing with labour relations, not provincial law. What if our airlines or our banking community were on strike? Those are meaningful to the economy of this country. You are saying here that you definitely feel that there should be no replacement workers allowed.

Mr. Gottheil: Labour relations history will show that the most violent, bitter labour disputes are those in which the employer has resorted to the wide-scale use of outside replacement workers. We are not talking about managers performing work that would normally be performed by persons who are on strike or who are locked out, but about the situation where large numbers of outside persons are shipped in to act as replacement workers. Leaving political and theoretical beliefs aside, historical reality has shown us that those have been the most violent, bitter disputes.

Before this honourable committee, we are now not advocating an amendment to ban replacement workers completely. We are supporting the bill as it now stands, and it only prohibits replacement workers when the employee is using them for an illegal purpose.

Senator DeWare: It is very easy for the employees to request the industrial relations board to look into it because they say that the company is using them for that purpose.

Regardless of that, the Sims report came up with a recommendation as to how that clause should read. The Sims task force, as you know, deliberated for two years, and their recommendation seemed to be quite acceptable in the community -- not totally acceptable, but something that could be lived with. The government changed the Sims wording in Bill C-66 and now they have changed the wording again, but it still does not reflect exactly what the Sims report recommended. I am not sure why they feel they could not use the Sims report recommendation. That is why there is so much controversy. I think people could have lived with that wording.

Mr. Gottheil: I cannot comment on why the legislation was drafted with that particular language, but I can say that Bill C-19 does not ban replacement workers.

Senator DeWare: The Sims report said that there should be no general prohibition on the use of replacement workers. That is the first statement, and then it goes on to discuss the unfair labour practice. The government just took that first sentence out and did not put it back in anywhere. That is my concern. It would show that the government agrees with the Sims report, but that if there is an unfair labour practice, the board will definitely refuse to allow it.

You still have not answered my question: What if we have a national strike across this country? Do you know what will happen? The government will order the people back to work.

Mr. Gottheil: If Bill C-19 is passed, employers will be able to use replacement workers at will, as they did before, except that an employer will not be able to use a replacement worker for an illegal purpose, which is the attempt to extinguish bargaining rights. That is an issue for the employees to decide.

The Chairman: Thank you very much, Mr. Gottheil.

We will now hear representatives from the Canadian Labour Congress. Welcome and please proceed, Ms Riche.

Ms Nancy Riche, Executive Vice-President, Canadian Labour Congress: Thank you, Mr. Chairman.

I have read all of the presentations before this committee, and I hope that we will discuss how I feel that the Senate has been misled in some cases on the interpretation of certain parts of this bill. It would be unfortunate if you made your final decision based on some of what you have heard, sometimes by sins of commission and sometimes by sins of omission, in the presentations.

We are in a situation not unlike FETCO and the Canadian Labour Lawyers Association, in that if we had written the bill, it would not look like anything you have before you. Some senators would probably be apoplectic if they were faced with the bill I would write, and would probably very much like one that the bankers would write. However, we come before you to say that we want this bill passed. It does not go nearly far enough toward modernizing the Canada Labour Code, as we would like to see it, but it is a start.

You have heard from many of the witnesses who were involved in the process, such as FETCO, representing their approximately 20 member organizations, and the Canadian Labour Congress, with all of our affiliates who have membership in federal jurisdiction. Under the recommendation of the Sims report, Minister Gagliano set up this process.

You have before you an historic event, in that the employers and the trade union movement in the federal jurisdiction have found some place to come together. You would have enjoyed our discussion on replacement workers. We did not reach a decision. We will not reach a consensus on that, and that is basically what Sims said and what is in the bill today, after it was changed.

We would not write the bill that way but we are pleased with the new representational board. It is absolutely vital.

There are three parties involved in the bargaining relationship for the purpose of seeing the collective bargaining through to fruition -- those representing the workers, those representing the employers, and the new Canadian Industrial Relations Board. We have all three represented -- labour, management and the neutral individuals in the chairs and vice-chairs. One would hope that we could come to some decision.

It is interesting to note that under Bill C-19, which was Bill C-66, the chamber of commerce was very distressed about Bill C-66 and has come out publicly in support of Bill C-19.

A certain segment of groups, most coming from the West Coast, disagree with certain clauses of the bill. Employers who are minimally organized and never want to be organized, or who have no desire to have unions in their workplace, disagree with other clauses of the bill. Therefore, we can assume that the bankers support the replacement workers clause because they are only opposed to other clauses about organizing.

We need to talk about what we are doing as a basic fundamental human right. Some of the discussion in the testimony suggests that trade unions are somehow involved in illegal activity when they sign up people to join a union.

Article 24 of the Universal Declaration of Human Rights states:

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

On December 10 of this year, we celebrate the Universal Declaration of Human Rights. Article 23.4 states:

Everyone has the right to form and join trade unions for the protection of his interests.

The preamble to the code, which we did not change, says that it is a basic fundamental right in this country. The right to join unions and to organize people in unions is, clearly, a legal activity, not an illegal activity. Nothing in this bill gives either side more powers than the other. I would argue that perhaps employers have always had more power.

This whole discussion -- and I am glad you had labour lawyers appear before you on the issue of automatic certification -- needed to be put into perspective. The suggestion was that every time unions went out to organize someone, the board would immediately jump in and automatically certify. It is important that we keep this in perspective, but it is also important to note that what unions do is still legal in this country as of today.

Senator Grafstein: I was taken by your comments about the right to unionize. No one questions that. I always believed that the right was the right of the worker.

Ms Riche: It is.

Senator Grafstein: We are talking about the right of the individual worker.

I was intrigued by the comments contained in the banking brief, which talked about the right to privacy. What do you make of that comment? If I understand them correctly, they are saying that accessibility by electronic means can be more intrusive in terms of privacy than through the mail or through normal, non-electronic means. That is a basic point, one that is obviously of some concern. They are saying that, without their consent, this is a breach of their right as a worker. One wonders whether the means, in this instance, justifies the objective.

Ms Riche: Let us talk about what the bill says and in what context we are operating here.

Senator Grafstein: You said it was a sin and that it was misleading. I did not find their statement misleading. Did you?

Ms Riche: No. I just know their agenda and motivation.

Senator Grafstein: Everyone knows their agenda, but we are stuck with the law.

Ms Riche: We must put it into context. This was put in because we all understand the new realities of the workplace. We are not now in an industrial setting of big mines and big plants, where the union can stay outside the plant and meet people at night or stay at home and speak to them one on one. I am not speaking of self-employed individuals with computers. I am not, quite honestly, as concerned about those folks as I am about the seamstresses, particularly immigrant female workers sitting in their homes in downtown Toronto, with their kids working as well. They are mostly Chinese. I am concerned about this group because their workplace is not a plant. Their new workplace is their home.

That is why I wanted to make the point that the unions have the fundamental right to organize, that is to say, to form a union for those people who freely and democratically say yes to a union. Surely to goodness we must have access to them.

The clause on privacy was changed between Bill C-66 and Bill C-19 to give the board more responsibility.

I do not disagree with you. I do not believe that anyone has the right to invade an individual's privacy, not even unions.

In this new age of working at home and electronic communication all over the place, this allows the board, with the consent of the workers, to give the unions the names of people to speak to in order to see if they wish to join a union. At the end of the day, that individual may say yes, sign a card, and give that union organizer $5. The suggestion that this clause in the bill gives unions the automatic right to view a database is not true. It is unfair to suggest that we have the right to go in, sit at the computer of the employer, and contact every single member. That is not the case. The board will decide with the consent of the workers. At the end of the day, it is the workers who decide.

Senator Grafstein: In your view, the interpretation of this provision is that an individual worker can say to his employer, "Please do not give anyone access to my e-mail."

Ms Riche: Yes. The board goes about its process. According to this bill, the board will check to see if the workers will allow access.

Senator Grafstein: Do the members of the board satisfy themselves about the consent before they do that?

Ms Riche: I assume the board would have to do so.

Senator Grafstein: That is the way you would read it, as a union organizer.

Ms Riche: Yes, because I assume the board would be concerned about privacy. The Canadian Industrial Relations Board, or CIRB is not in a position to represent unions only.

Mr. Emile Vallée, Political Advisor, Quebec Federation of Labour: The context is different. The context must be modern in the situation of having to reach people at home, but the principles are not very different from what they were in the thirties and forties, when unions were trying to organize people in logging camps. In mining camps, unions had to go to the boards and obtain permission to go into the camps to talk to workers in an effort to organize them. That did not automatically mean that the workers would join the union, but it gave the union access to the workers, so that they could exercise their rights. This provision is trying to translate the same principle to the nineties.

Senator DeWare: Concerns were raised this morning about the makeup of the board and the length of time of the appointment. We feel that there is a widely held consensus that it takes two or three years on a working curve for people to get up to speed, especially working on a federal board of that type. Do you feel that a three-year appointment is appropriate for these members, or should it be extended?

Ms Riche: We support the three years. They can be reappointed for another three years. I would have been fine with the five years.

On the current board, some people wanted a shorter time frame. Perhaps in a couple of years we will move that up to five years again.

Those involved with the board feel more comfortable with a shorter term because it also allows you to get rid of someone who does not do the job as they should.

It does allow for a reappointment to six years. The board is so busy that it will not take them long to get up to speed.

Senator DeWare: Was this part of your recommendation?

Ms Riche: Yes.

Senator Maheu: Friday last, we had a group in here talking about collective agreements in northern mines.

I know that there are people up there making great efforts to train aboriginal people to work in the mines. They said that it would not be possible to give recruitment preference to aboriginal peoples if this bill became law.

Do you believe that that it true?

Ms Riche: Absolutely not. I found the evidence of the representatives from the mines organization in the Northwest Territories very upsetting. They suggested that unions do the hiring. It is employers who have stopped affirmative action and employment equity in this country. The only time that employment equity was imposed was when CN would not hire women and were forced to do so by law.

Collective agreements do not interfere with affirmative action. A collective agreement is an agreement signed by two parties. Unions have led on employment-equity issues. We have been the ones supporting employment-equity legislation. We are the ones who are saying that it is not strong enough in this country.

Unions do not hire; employers hire. The suggestion was made before this committee that large groups of people would come up from southern Canada, be hired -- although it was not explained how that would happen -- and interfere with the aboriginal workers. It was the Steelworkers of America who implemented affirmative action for aboriginals in Thompson, which allowed them to avoid the seniority provision.

The suggestion made to you on Friday was incredibly misleading and terribly unfair in terms of unions. For a group purporting to represent aboriginal peoples, it was quite an outrageous presentation.

The Chairman: Do you have affirmative action at the CLC?

Ms Riche: Yes, we do. We have an employment-equity committee made up of the two unions and management. Since it has been set up, only targeted groups under the employment equity legislation have been hired.

The Chairman: Good for you.

Ms Riche: Does the Senate have an affirmative action policy?

The Chairman: I believe that we do.

Ms Riche: The Prime Minister is certainly getting better at appointing women, which is making good things happen in the Senate.

Senator Kinsella: I believe that several years ago the Standing Committee on Internal Economy adopted an affirmative action, or employment equity, policy.

I wish to thank you for underscoring the fact that the right to form a trade union is a human right, not only recognized in the Universal Declaration of Human Rights, but contained in the international covenants and all the ILO conventions to which Canada is a party. There is no question that that right is a human right, which Canadians have enjoyed.

I was reading the transcripts from your appearance before the House of Commons committee on March 26 of this year. I was quite delighted to read that, when speaking about section 107, you said:

So in addition to all the wonderful work you're doing, the committee might want to make sure when the bill is typed and put together for proclamation that we are gender sensitive.

I commend you for saying that. I wish to speak, not to the substantive issue, but to the issue of the art of good legislative drafting. We need your advice on this because the language of the Canada Labour Code needs to be cleaned up. I could go through it and show you all the sections where they talk about "fishermen," et cetera. Gender sensitivity is a dimension of what we were saying about employment equity a few seconds ago.

In the Speech from the Throne, the government said that it wanted to modernize the Canada Labour Code. When Mr. Gagliano introduced Bill C-66, he said that one of its objectives was to modernize the code. Mr. MacAulay said the same thing. My colleague Senator Maheu said the same thing at second reading. As you told the committee of the other place, part of modernization is the use of gender-sensitive language.

What recommendations could you make with regard to cleaning this up? It is my understanding that this is the first serious look at the code in 25 years. It has been said that the new labour code must carry us well into the next century.

During our clause-by-clause study of this bill, we could make it gender sensitive, as you requested, and we will attempt to do that. Do you have any other recommendations on that?

Ms Riche: I think the bill is gender sensitive. You are speaking of the code, which has not been amended, that is not gender sensitive. I understand from the Department of Justice -- and maybe they are the problem -- that if you open up any piece of the legislation to make it gender sensitive, you are opening up everything else to amendment.

Perhaps we should open up all federal legislation to make it gender sensitive. Perhaps the Senate could take the lead on this with an omnibus bill saying that gender sensitivity will be read into all legislation.

The parts of the code amended by this bill are gender sensitive. Those parts which are not amended are not gender sensitive. I have some faith, although not total faith, that, as each piece of legislation is opened, it will be made gender sensitive. Human rights code amendments are expected in the fall. We are also expecting to see an immigration bill. As we amend acts, we will make them gender sensitive. However, if all parts of each act must be opened to amendment in order to accomplish gender sensitivity, we cannot realistically do that.

Of course, I support you and agree with you. Perhaps the brilliance of the Senate could come up with an idea to make this happen in all legislation.

The Chairman: As always, your testimony was very clear, forthright and helpful. Thank you for appearing here today.

The committee adjourned.