Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 24, Evidence - December 11, 2014

OTTAWA, Thursday, December 11, 2014

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-525, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation — bargaining agent), met this day at 10:31 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.


The Chair: Good day and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our hearings on Bill C-525, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act, which proposes changes that would require the certification or decertification of the various bargaining agents for federally regulated public service unions be achieved by a majority of votes cast by secret.

This is our second meeting on Bill C-525. As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the website. You can find more information on the schedule of witnesses on that same website under ''Senate Committees.''

For our first panel today, please welcome, from the Canadian LabourWatch Association, President John Mortimer; from the Public Service Alliance, Chris Aylward, National Executive Vice-President, Executive Office, and Shannon Blatt, Legal Officer; and from the Canadian Labour Congress, Chris Roberts, Director, Social and Economic Policy Department. Thank you all for appearing today. We very much appreciate it.

We have opening statements. We will begin with Mr. Mortimer.

John Mortimer, President, Canadian LabourWatch Association: Thank you, Mr. Chair.

Honourable senators, we appreciate the privilege of participating in your review of the proposed employees' voting rights act. Our objective is to look at this legislation from an employee rights perspective and clarify potential misunderstandings flowing from yesterday.

In addition to being the President of LabourWatch for over 14 years, my prior 15 years were in senior roles such as the head of Human Resources for Future Shop and Wendy's Restaurants.

It appears that it was in 1977 that workers in Nova Scotia became the first Canadians to get legislated access to this bulwark of democracy — a statutorily guaranteed secret ballot vote.

Moving from coast to coast, in 1984, employees in my home province of B.C. got the vote; Alberta's, 1988; Newfoundland and Labrador's, 1993; Ontario's, 1995; and most recently, Saskatchewan's in 2008. In Manitoba, the vote came in 1996, went away in 2000 and has yet to come back again.

We have submitted a table that summarizes the key provisions, as a reference resource, for your deliberations.

Yesterday, all witnesses missed Newfoundland and Labrador where the vote is still guaranteed to ''The Rock's'' hard working citizens. Therefore, in 2014, both an absolute majority of jurisdictions, 6 out of 11, not 5, and notably a majority of Canadians by population, now have this kind of vote protected by law. Every year, in all six of these Canadian vote jurisdictions, employees vote both for and against unionization. Where a majority voted in private, in a government-run election, workers have still been unionized. Unions have not disappeared, not even in Nova Scotia after 37 years of workplace democracy.

One main union leader criticism is that their rate of new unionizations is lower. This is true and reflects what informed employees, making an informed private choice, actually want.

The largest Canadian local of the Labourers' International Union has this to say about signing union cards, and I quote directly from their website that I found yesterday:

Q: What should I do if I am asked by a rival union to sign a membership card?
A: Don't sign anything! You do not have to sign anything. Don't be tricked into signing something ''to get more information'' . . . . It's just a sneaky way to get a member to sign a card for another union.

Employees are told sometimes that a card is just to get more information or that it's just to get a vote, but in a card jurisdiction, that's not the truth. Unionization is, in fact, the true result.

Union leaders, their lawyers and some labour board personnel point to the lack of published labour board rulings about inappropriate tactics, about unions doing exactly what the labourers' union warns unionized workers against.

There are several reasons for this dearth of jurisprudence. The most relevant one is as follows. The CIRB, like other boards across Canada, says that card-signing concerns are not the employer's business. In 2005, the CIRB stated:

In certification proceedings, the wishes of employees, including their motives for joining a union are not the employer's concern. Any disquiet about undue influence or coercion into signing membership concerns should be brought to the Board's attention by the employees themselves.

Now unions have plenty of talented professionals and outside labour lawyers to challenge employer actions, but with labour boards telling employers to sit down and be quiet, it is simply not credible to say that employees have any practical ability to file charges against a union and to show up and litigate them, let alone afford a lawyer to do so.

Then there is card fraud. We got a small peak at the underbelly of some union tactics in British Columbia with the Purdy's case, where the union got caught, but only years later. I've met with former union organizers, who of course wish to remain anonymous. They described to me in some detail the tactics they had participated in to obtain employee signatures on another document so that the union's handwriting expert could more effectively sign cards for employees, without their knowledge to submit fraudulently. There are some, but not all of these reasons, why there are almost no cases to reference.

Yesterday, Senator Fraser pursued an important line of inquiry with the CIRB chair. The issue appeared to be the board's performance versus its targets for getting applications concluded. The CIRB is the master of its processes. Long ago the CIRB could have made the changes the board chair said that they are now looking at in a province that she cited, which was Ontario. I hope they look beyond Ontario because there are a number of boards who do expedited elections, some in as little as 48 hours after the application is received.

Finally, there seemed to be a lot of criticism directed at the bill because it did not set a timeline for votes in the statute. If you look at the cross-country table that we provided for your reference, it appears that seven jurisdictions do not set hard timelines for votes. No card jurisdiction does. Yet each and every one of them runs votes when applications fall below the card check threshold.

The Chair: I would encourage you to finish up.

Mr. Mortimer: Have any of the union witnesses or any others asked for the 5 or 10-day deadline for those votes? Not that I have ever seen or heard of. The level of concern being raised about Bill C-525 should be contrasted with this lack of concern ever being exhibited before.

Thank you, and I look forward to your questions.

Chris Aylward, National Executive Vice-President, Executive Office, Public Service Alliance of Canada: Thank you, senators, and good morning. I want to thank you for inviting the Public Service Alliance of Canada to appear before the committee this morning. I will be providing our union's position on the bill and our legal officer, Shannon Blatt, will be assisting me in answering any questions you may have.

The purpose of labour law is to ensure fairness and balance in the workplace, to protect the rights of workers and to promote harmonious labour relations. Bill C-525 upsets some of the democratic safeguards in the current laws that enable workers to express their wishes free from interference and intimidation.

It was introduced without any evidence that the rules for certification and decertification need to be changed in this way. Our union is very concerned that Bill C-525 will change labour law, without the usual broad consultation process that involves employers, unions and the government.

The bill was drafted without a formal consultation process. As a result, it disregards the delicate balance between the rights of employers and the rights of workers, which is the cornerstone of harmonious labour relations. PSAC takes strong exception to this lack of process.

Bill C-525 introduces some disturbing elements that will interfere with the ability of workers to unionize federally. They go against the very spirit of the right to freedom of association enshrined in the Canadian Charter of Rights and Freedoms. The bill eliminates the right to automatic certification when a majority of workers show their intent to form a union by signing a union card and paying a fee when they sign. This is known as card check.

Bill C-525 imposes a mandatory secret vote, even when a majority has already signed a union card. PSAC has no issue with voting by secret ballot. For example, we use secret ballots to elect our officers, ratify collective agreements, and vote for strike action. What we object to is forcing workers to show twice that they wish to unionize.

We know that signing a union card is a step that employees don't take lightly or carelessly. We believe their wishes should be respected. Studies have already shown that the elimination of card check reduces the ability of workers to unionize. In addition, we don't expect that labour boards will be given any additional resources, which means the time between an application for certification and an actual vote is going to increase.

The Chair of the Canada Industrial Relations Board testified before a House of Commons committee that if Bill C-525 becomes law, the board's involvement in the certification process will increase fivefold. Yet, federal departments and agency budgets have been cut or frozen. Employers will have more time to intimidate workers into not voting for the union or not voting at all, which works in their favour. This interference creates unnecessary conflict and hostility between workers and their employers. Workers feel they are being forced to choose between the union and the employer.

In summary, Bill C-525 is not about protecting workers' democratic rights. It's directly aimed at making it harder for workers to organize and easier for employers to interfere in the process. Current federal law protects the individual rights of workers through the certification and decertification process. There is no evidence that the current labour relations regimes with respect to certification and decertification need to be changed. There is no movement of workers demanding changes to the current law.

Even the largest organization, federally regulated employers, FETCO, has raised concerns about changing labour laws without due consultation and an attempt to reach consensus. We believe it is critical to look at the entire legal framework to ensure a healthy balance between the rights of workers and the rights of employers. This can only be done through extensive consultation with all stakeholders. We also believe that card check is the best way to ensure that workers' rights are protected in the organizing process.

Bill C-525 received only several hours of hearings by a committee before being passed in the House of Commons. We're very concerned that this bill may become law with very little debate and scrutiny. We urge the senators on this committee to proceed no further with this flawed piece of legislation.

Thank you.

Chris Roberts, Director, Social and Economic Policy Department, Canadian Labour Congress: On behalf of the 3.3 million members of the Canadian Labour Congress, I want to thank the committee and senators for giving us the opportunity to present our views regarding private member's Bill C-525.

The CLC brings together Canada's national and international unions, along with the provincial and territorial federations of labour and 130 district labour councils. Our members work in virtually all sectors of the Canadian economy, in all occupations, including workers under federal jurisdiction.

In our view, Bill C-525 proposes unnecessary and regressive amendments to federal labour relations statutes and should be defeated. Bill C-525 eliminates the right to automatic certification when a majority of workers demonstrate their wish to form a union through the process of signing a union card and paying a fee in the process. Bill C-525 imposes a mandatory vote, even where most employees have already decided to sign a union card. The bill forces workers to show not once but twice that they want to unionize. Despite this, the bill imposes no time limits on elections or expedited hearings of unfair labour practice complaints in order to ensure that employers cannot interfere with workers' right to organize.

Under the existing Canada Labour Code, a rigorous, robust process exists whereby the labour board can determine majority support based on cards signed, and the Canada Industrial Relations Board has described this process to both the Commons committee and to the Senate. Once an application for certification is made, the board notifies the employer of the application. The notice is posted in the workplace, informing all workers affected by the application for certification. Employees can find on the notice the contact information of the board officer assigned to the file in case they want to report impropriety or intimidation. The officer acting on behalf of the board is responsible for investigating the application and receiving submissions from the employer and any employees who might have a complaint with the application.

The officer must test the membership evidence supplied by the applicant by contacting a sample of workers signing membership cards in order to verify that they did sign the card and that they paid the required sign-up fee of $5. That process is often very rigorous, challenging and thorough. The officer also investigates any allegations of improprieties that may have been raised. The officer then prepares a written report summarizing the positions of the parties, which is sent to the parties for review. This is a careful, legitimate, robust and rigorous process for determining majority support for a union based on signed union cards. I submit that it is the most efficient way of determining employees' support or lack thereof for certification.

Furthermore, section 29 of the Canada Labour Code provides the board with the authority to order a representation vote if it deems one is necessary. The government has said that ''a secret ballot vote would reduce the opportunity for some intimidation within the card check system.'' In fact, there is little evidence of intimidation within the card check system. Simply to reiterate testimony that's already been given on this subject, out of 4,000 decisions of the CIRB over the past decade, only 23 involved allegations of intimidation or coercion. Of those that were found to involve intimidation or coercion, where that was confirmed, there were six instances, four of which originated with the employer.

Senators, Bill C-525 proposes significant changes to the current certification process in Canada. It adds an unfair and redundant mandatory vote, giving employers time to interfere with workers' choice for collective representation. The bill further politicizes federal labour relations. It will promote confrontation instead of cooperation in the workplace. It will increase the scope for intimidation from employers. It will contribute to the deterioration of working conditions and increase income inequality in Canada, in our view. For all of these reasons, we call on senators to defeat the bill.

In closing, the CLC urges the federal government to stop the introduction of one-off changes to the Canada Labour Code. Amendments should not be made through private member's legislation. They should be made with concerted pre-legislative consultation that engages employers, unions and the government.

Thank you very much.

The Chair: We will begin the question phase with the deputy chair of the committee, Senator Baker.

Senator Baker: Thank you to the witnesses for their very interesting presentations this morning.

Mr. Mortimer, the committee was of the understanding, and I know he's correcting the record, that Newfoundland and Labrador had the secret ballot back in 1993 but has since reverted to the card check system in a very interesting manner in that you require the signatures of up to 65 per cent of the people by card check. If you don't get 65 per cent, if you're between 50 and 65, then a vote can take place. Less than 50 per cent, it's just discarded.

Unless you've come up with some new information that Newfoundland and Labrador has not reverted back to the card system, I have to correct you on that, first of all.

Mr. Mortimer: You're correct that the Conservative government moved to card check in 2012 and then repealed that and put the secret ballot vote back this year.

Senator Baker: This year?

Mr. Mortimer: This year, yes, so after the premier resigned, under the interim leader —

Senator Baker: There are so many different premiers. We lose track.

Mr. Mortimer: Yes.

Senator Baker: Let me ask you, first of all, a general question. I turn to Ms. Blatt in her expertise on this issue.

It appears to me that the big problem with the bill, on the face of it, the requirement now with the bill is that you receive a 40 per cent threshold, first of all, 40 per cent signatures, up to 40 per cent, and then there is a mandatory secret ballot of the majority of those who vote.

The bill was changed in the House of Commons in that originally the secret vote was that you had to have 50 per cent of all of those who voted. In other words, somebody who didn't vote would be counted as a no, but now you have a simple majority of those who vote. Your first threshold is 40 per cent the union gets signatures from. So couldn't you now have a situation where less than 50 per cent of the employees could actually determine the certification?

Ms. Blatt: Yes. I think that would be the case in many jurisdictions in Canada.

Senator Baker: What we've got is a bill here that replaces a system where you needed over 50 per cent signatures from employees; you are replacing it with a system that has a lower threshold where less than 50 per cent could approve the legislation.

Before the chair cuts me off on my time, I want to ask you a simple question relating to the difficulty of voting in northern areas, in vast, expansive areas of Canada. I recall a case called Kugaaruk Hamlet, in which an email was sent by the Public Service Alliance of Canada to a working group. Do you recall that case?

Ms. Blatt: I do. I think there were two matters concerning that employer.

Senator Baker: You were counsel.

Ms. Blatt: Kugaaruk.

Senator Baker: I see. How difficult is it going to be under this legislation to enact this legislation and carry out the votes necessary by the board?

Ms. Blatt: Well, I believe that would depend on the manner in which the board conducts the votes. The board does have the option of conducting mail-in ballots and possibly electronic ballots, but those are expensive endeavours, certainly the electronic means.

If you have a remote northern community, such as the one in question in that matter, and a mandatory vote is held on site, it will be expensive for the Government of Canada. It will be expensive for the union potentially to have scrutineers and officers present for the conduct of the vote and the counting of the ballots.

Where this becomes exponentially greater a problem is where you have multiple work sites for a single employer. We have examples of that in northern Ontario with First Nations police services, where we have a vast, vast territory with perhaps 12, 15 different work sites at which balloting must occur. Flights are very expensive. I think these are massive undertakings that are, frankly, based on our experience I think it's no surprise to say that we think it's completely unnecessary. It's just a needless expenditure of resources by everybody.

Senator Tannas: Mr. Mortimer, let me start by saying I'm struck by the discussion around stakeholders and stability and what the stakeholders want, when the one group of stakeholders that Mr. Calkins is interested in is the employees, the individuals and what they have to say. I think it's a great argument for why there should be private member's bills to allow individual citizens to speak to their individual representative and bring forward changes to things that matter to them.

We have evidence you provided by way of a survey done by Leger, which is a reputable, well-known research firm, from what I can gather, and yet yesterday we heard testimony that this survey has been thoroughly discredited; the survey that shows that an overwhelming majority of employees who are not unionized, and an even larger majority of employees who are unionized, would like to see secret ballot and are in favour of that. Could you talk about this survey and let us know why it's so thoroughly discredited?

Mr. Mortimer: The Leger survey of 2013, to contradict Mr. Moist, has not been criticized at all. The criticism is levelled at a 2011 survey done by Nanos Research, and it's leveled at one question which had absolutely nothing to do with the secret ballot vote topic. This question about secret ballot votes was first asked by Leger in 2003, by Nanos in 2008, by Nanos in 2011 and by Leger again in 2013. I have not seen criticism of that question. The data has been consistent every time that question has been done within the relevant margins over time.

Senator Tannas: Thank you.

Senator Fraser: I have two questions. One is actually a request.

Mr. Mortimer, you have given us a partial report on the Leger & Leger poll. The question that the pollsters apparently put was: ''I am going to read you a list of statements about workplaces and unions.'' You've only given us one. Could you please provide us with the others in the order in which all the questions were asked?

Mr. Mortimer: I could undertake to do that. The entire survey is on our website and has been there, as is the 2003 one, since the beginning. So I could certainly send a letter to the committee afterwards, providing a link to the entire online survey in both languages.

Senator Fraser: If you could tell us right away what your website's address is, that would probably be helpful. You could write it down and give it to the clerk.

Mr. Mortimer: and

Senator Fraser: Thank you.

To Mr. Aylward and Mr. Roberts, we heard a lot of discussion yesterday about timelines and if you're going to have a secret ballot, the importance of holding it rapidly. We also were told by Ms. MacPherson in the documents she submitted that it takes 157 days on average between the request for accreditation and the conclusion of the process when a secret ballot is involved, as distinct from electronic voting or telephone voting.

Ms. MacPherson — and I found this admirable — said that if this bill passes the CIRB will attempt to meet the standard in Ontario where the vote must be held within five days. Do you think the CIRB can do that? That is question number one.

Question number two is: Do you agree with what some research suggests, which is the longer the delay the more likely the application is to fail?

Mr. Roberts: Thank you very much for the questions.

I have grave concerns that the board can meet the requirement for a timely vote. If, in fact, the requirement for a vote in every instance means a quintupling of the workload of the board and simply looking at the possible staffing position of the board going forward and the existing, average timelines that you cited, I have very grave concerns.

We know from the academic research that you're going to get a flavour of later in the day, as well as from the United States, that the longer the process is allowed to prolong, the greater the opportunity for interference, intimidation and delay such that workers' democratic right to decide whether or not they want form a union becomes less and less likely to be accurately reflected in the outcome.

I would hope that the committee and the senators will study very carefully that experience and the academic research, which shows that this is a very significant concern.

Ms. Blatt: I think it is a virtual certainty that there will be circumstances in which the board will not be able to meet those timelines when we look at the vastness of the geography of Canada and the fact that the entirety, almost, of the three northern territories are dealt with out of the CIRB's Vancouver office and by its limited staff and the possible necessity of travelling from Iqaluit, in Nunavut, to Whitehorse. What if there are two applications? What if there are three ongoing, and that regional office is administering it? There just aren't the resources to be in three places at once within the five-day period.


Senator Bellemare: I would like to hear your thoughts on a variety of points. Unions are not very popular these days, so it is probably time to improve their image. They have done a lot and still have a lot to do. They represent a fundamental institution.

Do you not think that secret ballot voting would improve unions' legitimacy and allow you to do even more? I would like to hear where you stand on using electronic voting to shorten timeframes associated with secret ballot voting. I can't see how an organization would not want to promote the widespread use of electronic voting across the country, and at little cost. I can't see how that would not be possible.

Furthermore, the bill creates symmetry between the certification process and the revocation process. I would like to hear your take on that symmetry.

I have one last question for you, and you can answer in writing if you don't mind. It has to do with secret ballot voting and the research showing that the unionization rate is on the decline. A fellow by the name of Chris Riddell studied that phenomenon in the late 1990s and early 2000s, but has there been any recent research on the subject? The unionization rate is declining overall, owing to service growth within the economy and all kinds of other factors that are not necessarily tied to secret ballot voting. The secret ballot vote model could, however, dramatically increase your institution's legitimacy.

I would like to hear your comments on that, and if you have any related studies, I would like you to provide the committee with those.


Mr. Roberts: I can try to respond to that quickly.

With respect to the first question, I think it's absolutely paramount to consider the context for a contested certification application.

In the United States, employers have contributed to the rise of a union-avoidance industry, which is massive today. Starting in the 1970s, this industry developed with the sole purpose of slowing down, stopping and defeating organizing drives. One of the ways they are able to do that is through well-financed campaigns to tarnish and discredit the union in the eyes of employees.

This doesn't happen in a vacuum. The representation of unions through a systematic, funded campaign in the workplace by employers and union-avoidance law firms can make the decision one way or the other. It can determine the outcome of the decision. So I think that must be considered in the larger context.

With respect to electronic voting, I take the point, although to the extent that there are opportunities to delay or halt the process through unfair labour practice complaints and the like and applications on top of the certification application, those too must be considered, as well as to what extent there is a process for expediting hearings on those matters if the vote itself is not to be delayed interminably.

With respect to symmetry, I agree. I believe there should be symmetry between certification and revocation applications, and I will certainly forward any and all academic studies that I know of.

The Chair: Anyone else?

Ms. Blatt: I believe that the mandatory voting system will decrease union density in Canada, and if union density is lower, our popularity will be accordingly lower. Our ability to influence public discourse, et cetera, will be lower.

I think it is critical to also understand that employer interference in organizing campaigns starts before the application is filed. I filed a complaint last week with the Canada board. A man with 17 years of seniority and impeccable service was fired once it was revealed that he was organizing a union at his workplace.

As for electronic votes, I really have no experience with them myself, and so I would be hesitant to comment. I think, if we look at the world today, that seems to be a trend and direction we're moving in, but there are also concerns about the capacity to interfere technologically with those processes.


Senator Dagenais: Oftentimes, when a government drafts legislation, it is to protect society's most vulnerable. A number of labour organizations are well-established, work very well and follow the rules, both on the employee and employer sides.

The bill seeks to prevent intimidation through secret ballot voting. In Quebec, where I am from — and this may not apply in the case of certification — in the Baie-Comeau area, unions such as FTQ Construction have been guilty of tremendous intimidation. Occasionally, the purpose is also to force contractors to encourage their employees to organize. Sometimes, it is the CSN, and if you read the papers, you have heard all about the Charbonneau commission. I would like to hear your thoughts on that.

Holding secret ballot votes is said to be expensive. Having spent 15 or so years as a union president, I can tell you that unions have sizable budgets at their disposal, not to name any names. I find it hard to believe that secret ballot votes are expensive to hold. We have to take things a step further for the sake of democracy. The bill's original intent is to protect the most vulnerable group, and that is workers. I want to hear what you have to say on that.


Ms. Blatt: I would respectfully disagree 180 degrees with your position. I think this bill protects the powerful, not the vulnerable. This will protect employers and reduce union density in Canada, without question.

Mr. Mortimer: The only general comment I'd like to make is that unions are conducting strike votes and ratification votes as they're required to across the North, in all of these difficult bargaining units.

As to the electronic and alternative voting methods, the CIRB has the most comprehensive alternative voting methods of any labour board in all of Canada. I did a chart for LabourWatch on this, so I don't see any reason that they can't do even more of these alternative votes to accommodate up North.

Senator Moore: Thank you, witnesses, for being here.

Mr. Mortimer, your organization is called LabourWatch. Are any of your members unionized?

Mr. Mortimer: Member associations and member law firms? We have member associations that have unionized companies. For example, the Retail Council of Canada has a member in Loblaws. They have 140,000 employees in Canada, roughly 110,000 of whom are unionized.

Senator Moore: So you represent unionized people as well as non-unionized.

Mr. Mortimer: Indirectly through our members, yes.

Senator Moore: Do you ever advocate for them with regard to safety issues and things that employees might be concerned about in the workplace?

Mr. Mortimer: So safety, employment standards, human rights legislation.

Senator Moore: Do you advocate for those?

Mr. Mortimer: None of those are a part of our mandate. We run a website that warehouses government labour board forms. Our content advisers have worked through the jurisprudence, the board rules, to explain to employees via our website how to fill out those forms.

That is something that almost no labour board does. They put a form up and they don't tell the taxpayers how to fill it out. We do. That's our mandate.

Senator Moore: Do you list the names of your members?

Mr. Mortimer: Yes, we do.

Senator Moore: I'm pinch-hitting for somebody else here, so I wasn't here yesterday. You mentioned a Nanos poll. Did your organization pay for this Leger poll and the Nanos poll?

Mr. Mortimer: We paid for and sponsored all of the polls 2003 to 2013, yes.

Senator Moore: In the Leger poll, it's not really a question; it's a statement given to the person who receives the call. Was a statement included to the person who was polled to the effect that an affirmative decision in a vote requires 50 per cent plus one of those who voted?

It seems to me that in Canada, the democratic standard for a decision is 50 per cent plus one. Did you include that kind of a question, or statement at least, in your poll?

Mr. Mortimer: We did not execute any threshold questions getting into the details of the different thresholds that labour codes apply across Canada.

What I will say from my 30 years of experience is anything I saw through my days at Future Shop and Wendy's and as the head of LabourWatch, voter turnout in elections is very, very high. Typically 80 and 90 per cent of an eligible workforce turn out. Labour boards are at pains to pick multi-day schedules. They will come at 2 o'clock in the morning and conduct votes on night shift, 6 o'clock, middle of the day. They look at schedules and figure out how to maximize voter turnout, which is why it's so high. That's why the decisions are truly representative of what the workforce wants.

Senator Moore: What's the budget of your organization? Where do you get your funds?

Mr. Mortimer: We operate on between $50,000 and $90,000 a year on average. If it's a higher year it's because we raise additional monies for a survey, such as the one in 2013 by Leger, or to bring in an international speaker on a speaking tour.

Senator Moore: Where do you get your funds?

Mr. Mortimer: Our members pay typically a $1,000 to $2,500 a year to support us.

Senator Moore: Is that based on the size of their organization?

Mr. Mortimer: Correct, and the scope of their organizations.

Senator Moore: How many staff do you have at LabourWatch?

Mr. Mortimer: You're looking at him.

Senator Moore: Thank you. I think you might have told us that.

Mr. Mortimer: We have a number of volunteers, senator, that do research, answer the phone calls that come to the 1-800 number, whether it comes from an employer, the media, an employee, a university student doing research.

Senator Batters: We've heard a lot of references yesterday and today to your poll, but I wanted to give you an opportunity, Mr. Mortimer, to tell us some of the major findings of your poll so we have them on the record of this committee. Anything that you can relay to us in a broad sense would be appreciated.

Mr. Mortimer: The reason we commissioned the first poll in 2003 is that in the first three years of the existence of LabourWatch, I was finding a disconnect from some of the other public opinion research that had been commissioned by other organizations and the phone calls I was getting, the employees I was talking to, particularly unionized ones. I was looking at the very high rate of complaints against unions, known as duty of fair representation applications. A number of labour board chairs tell me this is the number one filing in front of their labour boards by far and above complaints against employers or any other filing.

We decided to do research where we wanted to ask working Canadians what they wanted in their unions and in their jobs. What struck me in the first results that came back was — it's been referred to before — the high rate at which unionized Canadians want certain things that no union leader, which they have to pay for through their union dues by law, is actually advocating for them.

As I said earlier in my remarks, if we should have expedited elections, then where is the union leader call in this country for expedited elections in all the jurisdictions that don't have them, haven't had them, including in the card check ones where they're going through votes? Why aren't they saying, ''Oh my goodness, we need a five-day vote whenever we can't get card check.'' I haven't seen that submission.

This reality is one of the reasons that they have a public relations problem. The broad issue is we're the only nation left with forced union membership as a condition of employment. We're the only one with forced union dues. We're the only non-right-to-work nation that I know of in the world. If you don't have to earn members and earn union dues, and you have the power of the government to impose them by statute, I don't think you're listening. Unions in Europe are listening far better to the people who are their members and pay them because it's voluntary.

Senator Batters: Mr. Roberts, you said in your opening statement that you disagreed with one-off legislation, with private members' bills being done on labour legislation. To me, a private member's bill is one of the most major rights that a member of Parliament has to bring forward. So you would eliminate that entire category of potential private members' bills for a member of Parliament to bring forward, thinking that it's not appropriate.

Are there any other types of laws that you think private members' bills shouldn't encompass? These are things that people's constituents come to them about and are important issues to them that they bring forward.

Mr. Roberts: With great respect, senator, I think that's a canard. We have never proposed eliminating private members' bills.

These are areas of legislation that have historically involved great study, great consultation, widespread discussion and review with expert involvement and participation.

What we've seen in recent private members' bills make very significant changes to the legislation around industrial relations. Frankly, we've seen quite poorly drafted legislation with not a lot of thought, and I think it's unfortunate.

If I may say something very quickly about the poll that was raised, Mr. Mortimer referred to consulting Canadian workers about what they would like to see in the workplace. In the poll, when it describes the demographic of respondents, under ''occupations,'' you'll find management occupation and self-employed. If you're management you can't join a union, and if you're self-employed you can't join a union. I would submit that the results of this poll are cooked like the last ones. You're asking bosses and employers, ''Would you like to join a union or have a union?'' The answer, of course, is no.

Senator Frum: I have to begin by noting that the argument that has been made here about how this bill will require workers to vote twice is a funny argument to make here in the Senate because the reason we're having this hearing is so Parliament can vote on this bill twice. It seems a perfectly legitimate function of our democracy to have that check and balance.

I would like to ask Mr. Mortimer a question. If you have more information about the assertion we heard from Mr. Aylward and others that the move to secret ballots sees a likelihood in the reduction of unionization, do you think that's true, and if that is true, what are your thoughts on what the possible reasons for that might be?

Mr. Mortimer: If it was ultimately true, then Nova Scotia ought to have the lowest union density in Canada, and it does not; Alberta does. It takes away the temptation to do the kind of things that the union organizer described to me and takes away the temptation to do what the labourers' union expressly warns people against. Their website is up there today warning people against the tactics of card check.

There is a profile of employee that, after a certain number of visits from an outside organizer, an inside organizer will simply say leave me alone and they'll sign the card. That is not a vote. I think it is inappropriate for union leaders to call 20 visits to an employee every break over two weeks a vote, and these are the kind of things that take place.

So what you do is clean out the inappropriate certifications and clean up the organizing process by having these votes. As I said in my opening remarks, unions have not disappeared, and Nova Scotia's density level in contrast to the rest of the country is the best fact we can deal with because it's almost four decades old.

Senator McInnis: Thank you for being here.

Many years ago, probably 25 years ago, they built a nursing home in my hometown of Sheet Harbour. It was run by the government, but they were paid much less and didn't have benefits. I encouraged them to form a union — in fact, I helped them — and they rectified things pretty quickly. I'm a supporter of unions.

I think Senator Bellemare said that you can build credibility but you lose credibility when you sit here — and this is the difficulty for me — and try to present a case against a secret ballot versus an open signature vote. I think, with all due respect, you lose credibility.

I think the only complaint that you legitimately have here — you have a right to complain about anything you want — in my mind, it's the fact that you have a system with the Canada Labour Code and a tripartite forum, if you will, where consultation takes place. It's unique. Perhaps that didn't happen, although democracy works in different ways. For private members' bills, there are all kinds of opportunity for you to go before the Commons committee and then here today and to talk to MPs, whatever.

I'd like your comments, because I think unions do good work, but I do believe you demean yourselves when you do this. That's my opinion.

Mr. Aylward: Thank you, Senator McInnis. I applaud you for helping that particular nursing home, for unionizing and obviously raising their standards and working conditions. I applaud you for that.

But we're not sitting here saying that secret ballots are bad. As a matter of fact, in my submission I said that we have nothing against secret ballots. We use secret ballots at our own organization. The Canada Industrial Relations Board today has the ability to call a secret ballot whenever they choose under the current system.

So it's not that a secret ballot is now going to be imposed on employees and we're opposed to that. We're not. As I said, they have the right to do that today, but there's no need to suddenly now say that you must conduct a secret ballot. There's nothing wrong with the current legislation, nothing at all. What you have in front of you is a flawed piece of legislation.

Senator McInnis: No, it isn't, because the counter-argument could be made. You're just continuing the same argument. What we're saying is that there's an open signature that takes place with the card check system in the process. All that's being said here is they're going to a secret ballot. The card check is the first step to becoming a certified union, and it will be certified when you have a secret ballot with the majority of employees.

Mr. Aylward: But there's no need to take that extra step.

Senator McInnis: Why not? You say that, but we've heard evidence to the contrary.

Mr. Aylward: It's certainly going to take longer. I believe you heard the Chair of the Canada Industrial Relations Board say, ''No one has spoken to me about additional resources, and what is this going to put on the Canada Industrial Relations Board?'' No one has answered that. Even the mover of this bill has not spoken to anyone at the Canada Industrial Relations Board as to additional resources that will be required.

Senator McInnis: Resources, with respect, is a red herring. It has nothing do with certification or decertification of a union. That is something that the administration of government will handle.

Mr. Aylward: The way this government has handled resources — and we've seen it, obviously — has been simply to cut, even to cut the most vulnerable front-line services to Canadians.

Senator McInnis: That's your opinion, and of course, it's —

Mr. Aylward: It's not my opinion. It's a fact.

Senator McInnis: Does anyone have any further comment on that?

Ms. Blatt: I think it is unequivocally true that secret ballot votes will reduce unionization rates. There is data. I have in front of me excerpts of a paper from the Fraser Institute, hardly a left-wing, biased organization.

Senator McInnis: It is lately.

Ms. Blatt: We can only hope.

I think it's just that simple. Mandatory secret ballot votes will reduce unionization rates. One cannot support unions and credibly say they support secret ballot vote regimes. Union organizing starts, people sign cards and a conversation occurs in the workplace. If a critical mass is achieved such as to entitle the union to certification, they will be certified. Employer interference starts as soon as they are aware of the campaign. People start getting fired and intimidated. The mandatory vote is where they cash in.

Senator McInnis: That is the presumption.

Ms. Blatt: It is not. It is 20 years of experience.

Senator Baker: Ms. Blatt, would you verify that in all instances that I can recall in which the courts — the Court of Queen's Bench, the Court of Appeal recently and it has gone to the Supreme Court — have come to the conclusion that this secret ballot regime brought into place in four provinces in Canada will make certification more difficult to attain?

Ms. Blatt: That is absolutely the case, in my opinion.

Senator Baker: That is the finding of our courts in Canada.

Ms. Blatt: I do not have a survey. Particularly because the courts handle labour relations matters on judicial review, it's usually the labour relations boards that are the tribunals that deal with this.

Senator Baker: We read the case law the same as you do.

Right now with our present law you have 50 per cent of people signing a card, 50 per cent plus one, and then the board deciding whether or not certification takes place. And the board takes into account exactly the factors brought up by Mr. Mortimer in determining whether or not a secret vote would then take place. So it's already in the legislation; a secret vote is already there, but only when there is evidence of some miscarriage, the example that Mr. Mortimer provided. Isn't that correct?

Ms. Blatt: The board has jurisdiction to conduct a secret ballot vote on every application for certification that is brought to it. Even if you file with 100 per cent of the employees, if the investigation, which I assure you is rigorous, aggressive at times — some of the board officers are very good at their jobs, and we're grateful for that. If they discover anything that reveals just a whiff — they don't need to know there's a problem, just a whiff — they can cure and remedy that with a secret ballot vote.

Senator Tannas: To Mr. Roberts and Ms. Blatt, I think both of you have enumerated the litany of terrible things that will occur to labour relations around the secret ballot if this bill goes forward. I'm wondering if you could point to the four provinces — British Columbia, Ontario specifically — where a secret ballot is undertaken for those under provincial jurisdiction, which is large? Could you show us the chaos and fire and brimstone happening in those jurisdictions around secret ballots?

Ms. Blatt: I think that is a question for a social scientist rather than a lawyer. I do not have the data. I have references to the data and the papers. I know Senator Bellemare asked for papers, and I think it's important that we provide those because I think the evidence is clear in that regard.

I deal with our staff organizers across the regions. There is no question in their minds that mandatory votes make it much more difficult to unionize.

Do we need to show chaos? We need to show an imbalance in the system, I would respectfully suggest, and we have that in those regimes.

Senator Tannas: Thank you. I look forward to reading about that.

Mr. Roberts: I think with the next few witnesses you will have appearing before the committee, you have an excellent resource in supplying answers to exactly those questions, a leading academic on this issue and an organizer, which I think is really important to understand what organizers deal with on a day-to-day basis in these provinces; that is, employers, at the end of the day, hold the cards. They decide who is employed, who is not employed, who is promoted, who isn't promoted, et cetera. Contesting that power is the context that has to be remembered in all of this.

The Chair: All right. Well, thank you all. We appreciate your appearance and testimony here today.

For our second panel, I'm pleased to introduce, as individuals, Sara Slinn, Associate Professor, Osgoode Hall Law School, by video conference; and Larry Seiferling, Lawyer, McDougall Gauley LLP. We also have with us, from Employment and Social Development Canada, Labour Program, Charles Philippe Rochon, Deputy Director, Strategic Policy and Legislative Reform.

Unfortunately, we had another witness who was scheduled from the United Steelworkers Union. Perhaps the weather is causing problems. He may join us during the process. We hope that he can make it.

We'll begin with opening statements from the witnesses who are in attendance. Ms. Slinn, can we begin with you?

Sara Slinn, Associate Professor, Osgoode Hall Law School, as an individual: Thank you for inviting me to speak on this matter. I'm appearing as a labour law and industrial relations academic with a background as a practising labour lawyer. Much of my scholarly research has examined vote and card-based certification models, so I am happy to answer questions you may have about that.

I'm appearing today, as an individual, to offer observations on what academic research can inform us about issues raised by this bill. I'm not offering my personal views or taking a partisan position on this bill.

In sum, the research evidence shows that there is no support for the notion that votes are necessarily a superior mechanism to cards for determining union representation. Nor does it support the notion that union intimidation or pressure is a substantial phenomenon in certification.

What it does demonstrate is that employer interference and, more so, employee fear of employer interference, is a real phenomenon. It's effective, and it's more effective under votes than card-based mechanisms.

What this research supports, in sum, is the need for, if a vote mechanism is to be applied, some safeguards for employees in the form of Internet or telephonic voting mechanisms; secondly, for statutory provision for interim relief and expedited unfair labour practice provisions; and third, statutory time limits within which the vote should be held. None of these are currently included in Bill C-525.

Now, one expressed rationale for this bill, as I understand it, is concern for protecting employees' expression of wishes through secret ballots, and this appears to be a very compelling argument, but representation votes don't ensure the type of secrecy that one might expect. Votes are held in the workplace. Union and employer scrutineers observe and record which employees vote and watch as they put their votes into the ballot box. Boards then release detailed vote information: the total number of ballots cast and how many cast for and against unionization.

This encourages employers and unions to draw conclusions about individual employees' choices and likely discourages some employees from voting, particularly in smaller bargaining units or where few ballots are cast.

Although there's a possibility of union or other employee interference in employee card signing, there's no evidence in academic studies that it's a significant or widespread phenomenon. My study of 18 years of unfair labour practice complaints during certification in B.C. found that the overwhelming majority of both complaints and unfair labour practice findings were made against employers, not against unions.

Seventy-eight per cent of all complaints were filed against employers. Only 21 per cent were against unions. Unfair labour practice findings: 88 per cent were against employers, 11 per cent against unions, and this is all in the certification context.

In contrast, the research evidence does show that employer interference is a problem and is more effective under a vote mechanism than a card-based mechanism.

Under votes, employers are always informed in advance of the vote, giving them a substantial opportunity to defeat the organizing. Newer studies demonstrate that these union avoidance activities are common, highly effective and produce long-term harm to workplace labour relations. Karen Bentham's survey of Canadian managers found that 80 per cent engaged in open opposition and 12 per cent admitted to engaging in what they believe to be illegal unfair labour practices. Moreover, studies show that employees believe and are fearful of employer retaliation for seeking to unionize. A Lipset and Meltz survey of Canadian employees found that among non-unionized employees, about 15 per cent expected employers to threaten consequences for organizing and 12 per cent expected individual retaliation against workers.

The unionized employees' view of management opposition were even starker, with 22 per cent predicting threats of consequences and 18 per cent predicting that the employer would target individual workers.

Chris Ridell found that claims of employer unfair labour practices were twice as effective on suppressing certification under a vote mechanism compared to under card-based certification.

Part of this difficulty arises from the necessary delay that arises from the representation process, which necessarily results in a longer procedure. This invites employer interference in union organizing. One study I was involved in with Michele Campolieti and Chris Riddell found that election delay significantly reduced the likelihood of certification where there was either no statutory time limit or the time limit was not well enforced. In Ontario, that was a reduction of 32 per cent holding all else equal and in British Columbia at 10 per cent reduction and outcomes holding all else equal.

So our study concluded that the combined presence of enforced statutory time limits on the date of the vote, along with expedited hearings for unfair labour practices, was the framework that most successfully limited the negative effects of election delay on outcomes. Again, these features are absent in this bill.

It's difficult for labour boards to effectively address or remedy interference in unions' decisions about union representation. Generally, a complaint of employer unfair labour practice will rarely even be heard, let alone decided by the labour board until after a vote has been held. Therefore, it's unlikely the labour board-ordered remedy will be issued, much less applied, prior to the vote or in sufficient time to actually remedy the effects of the employer wrongdoing.

This produces a potentially very strong incentive for employer interference.

So employees require greater protection from employer interference under a vote system than under a card system, and as I said, this includes access to expedite unfair labour practices and interim remedies.

The Chair: Ms. Slinn, I'm sorry, I'm going to have to stop you there.

Ms. Slinn: Thank you.

Larry Seiferling, Lawyer, McDougall Gauley LLP, as an individual: Honourable senators, while I am a practising labour lawyer representing both employees and employers since the late 1970s, I have never had the opportunity to appear before a Senate committee. I am happy to be here today to speak to this matter.

I graduated law school in 1972, and labour and employment law became my exclusive area of practice in 1978. I've been involved in all areas of labour law dealing with Saskatchewan and federal labour board hearings, arbitrations, and I've also been before all levels of the courts.

I have been voted on to the best lawyers of Canada for labour and employment law continuously since 2006 and repeatedly recommended in the Canadian Legal Lexpert Directory as a leading practitioner.

In order to understand my perspective on Bill C-525, it is necessary to understand that in my province of Saskatchewan, until 2008, certification was based upon cards, but notably decertification, no matter how many cards were filed in support of decertification, there was always a vote.

In 2008, the law changed to create similar rights to Bill C-525. Based upon this, from a legal and practical perspective, I strongly endorse a voting procedure to provide employees with the right to decide based upon a secret ballot vote for both certification and decertification.

There are a number of problems I've seen in my practice associated with card-based certification that can only be corrected by employees having the right to vote by secret ballot before a union is certified.

These problems include, first, the fact that neither the employer nor the employees can view the evidence before being considered by the board. The employer in such system is always suspicious that the employees' true wishes are not being represented.

Second, in our experience in Saskatchewan prior to 2008, there have been times when the labour board has certified a bargaining unit when there has not been majority support by the employees in the bargaining unit, and the union has not fairly advised the board of their lack of support.

Third, the employee is not advised of the card being filed on their behalf and no one outside of the union knows whose support cards have been filed.

All of these items can be corrected by a secret vote with an opportunity for the employer, the union and other employees to have a full discussion about the implications and effect of unionization in the workplace before the vote. A secret ballot also gives you the benefit that no one knows how you voted.

Unionization is a major step for all employees, as this involves the union becoming the exclusive agent for all employees in the bargaining unit. No individual rights are retained. Upon certification, your rights to negotiate any aspect of your employment terms are turned over to the certified union. If you're in the minority, you still have to pay for union representation you do not want.

In my experience, in cases where rights are going to be affected, it is always important that a person be informed and that they have a right to vote by secret ballot without the pressure of those around them knowing what their decision is. This is a democratic principle that we use for all levels of elections for government officials. There is no way that a person should have to disclose to a union representative, to a fellow employee or to the employer what their voting preference is. The only way to ensure this is with a secret ballot vote as opposed to a card-based system.

A vote also gives the employer a clear indication of the fact that the employee has support and allows bargaining to proceed with the knowledge of majority support.

The alternative to a secret ballot would be a system that clears up the flaws of a card-based system as listed earlier. These checks and balances would have to include, one, the ability to verify the signatures by handwriting experts on all of the cards filed to ensure that the cards have been properly signed by the person whose name is on the card; two, a system where the employee whose card is going to be used could receive confirmation from the labour board that the card is intended to be used in order that they can indicate whether they indeed filed support or if they signed a card whether they withdrew that support prior to the day that the application was filed; and, three, a system whereby the employee can provide information to the labour board on the circumstances under which they signed the card and whether there was misrepresentation on what the card was going to be used for and if the employee was misled on any aspect of unionization.

As you can see, the above process would be time-consuming, costly and would delay certification. Therefore, the most effective way is to simply have a secret ballot vote shortly after the application is filed.

In conclusion, it is hard to argue against a secret ballot vote as that is the basis of democracy. It is also hard to argue against having the same process used for both certification and decertification, and this is what Bill C-525 accomplishes.

I would be happy to answer any questions you may have on our processes in Saskatchewan or the procedures we followed since the amended act came into force in 2008.

Thank you very much.


Charles Philippe Rochon, Deputy Director, Strategic Policy and Legislative Reform, Labour Program, Employment and Social Development Canada: Thank you for inviting me to appear before the committee to talk about Bill C-525, the Employees' Voting Rights Act.

Let me begin by noting that my opening remarks will be very brief. As this is a private Member's bill, the Labour Program of Employment and Social Development Canada was not involved in its development. However, we did carefully examine the bill once it was introduced.

As you are aware, Bill C-525 aims to ensure that a secret ballot vote of all concerned employees is conducted prior to giving or taking away a union's bargaining rights. This would change the current card-check system, under which the applicable labour board can certify a union without a vote if it can demonstrate that it has the support of a majority of employees in the bargaining unit. It would also change the minimum threshold of employee support required to trigger a representation vote to certify or revoke certification of a union.


Bill C-525, as amended prior to its passage in the House of Commons, would result in the federal rules governing union certification and decertification in the private sector being similar to those in six provinces that already have mandatory vote systems in place. This does include Newfoundland and Labrador, which amended its Labour Relations Act last June.

The other provinces, namely Quebec, Manitoba, New Brunswick and Prince Edward Island, currently have card check systems similar to existing federal provisions.

Before concluding, I would like to stress that although Bill C-525 would amend Part I of the Canada Labour Code — as well as the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act — this will not have a direct effect on the Labour Program. The responsibility, as you know, for administering union certification and decertification applications and for conducting representation votes rests with the Canada Industrial Relations Board, as well as the Public Service Labour Relations and Employment Board. They are, therefore, best placed to measure the effects of the bill on their operations and resources.

I am, of course, available to answer any questions you may have.

The Chair: Thank you all. We'll begin those questions with the deputy chair, Senator Baker.

Senator Baker: Thank you to the presenters.

Mr. Rochon, you mentioned Newfoundland and Labrador changing back to the secret ballot. That's two changes now that have been made since the mid-1990s, back and forth, and it perhaps reflective of the government of the day and what the government of the day feels about the issue, as has been pointed out in the province of Saskatchewan by their courts and the Court of Appeal of Saskatchewan recently in judging this matter.

I have two questions, one for Ms. Slinn and the next one for Mr. Seiferling.

Ms. Slinn, you referenced the 88 per cent figure for unfair labour practices for employers during this process. Wouldn't you agree, though, that when you judge an unfair labour practice you have to look at the legislation that you're unfair in? Legislation varies across the country — as the witness who answers the question will verify — in that in some provinces it is unlawful for an employer to even communicate with the employees during the process. In other provinces, you have a provision that says this will not bar the employer from communicating information with the employee during the process. So wouldn't you agree that it depends on the legislation and that you can't just make an across-the-board statement that it's the employer who is at fault most of the time?

Ms. Slinn: Two things about that: First of all, this study was done in British Columbia which, during a large portion of the study period, had among the broadest provisions for employer's speech rights in the country.

Second, the limitations on employer communications to employees under collective bargaining legislation in Canada don't really vary that much across jurisdictions. Employers are absolutely not prohibited from communicating with employees. What's prohibited is intimidation, threats, coercion. The particular formula of those prohibitions does vary a bit among jurisdictions, but employers have quite a broad scope for communicating directly with employees about unionization during the organizing period.

Senator Baker: Thank you.

Mr. Seiferling, you mentioned the 2008 or 2007 legislation adopted in Saskatchewan. Could you verify that the legislation also changed that particular provision and said, I think, at a certain section that the employer would not be prevented from communicating information to the employees during that process?

But my main question to you is this: In all of your courts in your province that you're an expert in — because I've noticed you're in case law over 200 times. You have over 200 reported cases, so you have a long history in that province. Could you verify to this committee that your superior court and your highest court, your Court of Appeal, have both concluded that under the system of secret ballot, that it's going to make it more difficult for certification to take place?

Mr. Seiferling: They both cited studies that indicated that. On the other hand, the court said, both Dennis Ball in the Queen's Bench decision and more notably the Chief Justice in the Court of Appeal, that having a secret ballot vote, a democratic right, doesn't violate Charter rights and is not against the law for people to want.

I'm not a politician. I'm not speaking as a politician, but from a practical point of view, the court decisions in Saskatchewan were decisions that were basically dealing with another element, the essential services legislation.

The part that we are talking about on votes and every election was really a minor part of that case. It didn't really attract very much by way of comment by the courts. In all cases, it was approved as being a way to exercise democratic rights.

Senator Baker: Indeed, and that it upheld the fact that it didn't violate section 2(d) of the Charter. I understand it was a minor part of the legislation. It covered some 19 pages of the Court of Appeal decision. What I found interesting about that decision was that the Court of Appeal cited with approval, and said they agreed with the Court of Queen's Bench, that this system will make it more difficult. They spelled it out. It will make it more difficult for certification to take place. That's what I found interesting about the judgment.

I understand it has gone to the Supreme Court of Canada, but you're right in that the Court of Queen's Bench and the Court of Appeal both agreed that this is constitutional. It doesn't violate section 2(d) of the Charter, but they did both agree it's going to make it more difficult for certification to take place. Do you agree with that?

Mr. Seiferling: I agree that the comment was made in the decisions, but if you want me to express my view as a practitioner —

Senator Baker: Yes.

Mr. Seiferling: The only reason that happens is, in my experience — and I've represented a lot of employees over the years as well as the employers, I've represented both — every workplace where a union is attempting to get in, there are two groups. There's a group favouring the union and a group not favouring the union.

The problem in a card-based system is that you can get enough cards filed by the supporting group by going around to the people in the middle, and that's a big bulk of the people. They can sign something, where the group opposed to the union doesn't even know that it's happening, and the application is filed, with cards, without the other side ever being expressed.

Union reps don't go into a union drive to tell the negative sides of being unionized or what it's going to cost, necessarily, to tell all of the things that you would have to see in order to accurately express your wishes by way of a vote. A secret vote after both sides can look at it, both the union employees and the non-union-wanting employees, if both of them can properly debate, you're probably going to get less support when you hear both sides.

The Chair: We'll have to move on from there.

Senator Batters: Thank you very much. I want to briefly go to what Senator Baker was just discussing with you.

Mr. Seiferling, welcome from Saskatchewan. It is nice to see someone from my home province in front of the Senate or House of Commons committee for the first time. Congratulations on that. I certainly know the vast legal experience you have in the labour law. You're known in Saskatchewan as a pre-eminent labour lawyer.

To Senator Baker's point that he just made about the comment by the Court of Appeal, and perhaps by the Court of Queen's Bench decision as well, that this was potentially a more difficult process, I would say that sometimes democracy can be more difficult than the alternative. Having a democratic election is certainly more difficult than having a dictatorship.

In that respect, I wonder if you could give us a comment. We've heard some comment here and there from different witnesses about the need to have this time frame potentially fixed to make sure that these types of elections occur on a timely basis. Given your vast experience, could you provide us with some comment about that?

Mr. Seiferling: Yes, definitely. In Saskatchewan, there is no time limit set, but labour boards take very seriously the obligation to try and get the vote taken as quickly as possible. I heard John Mortimer speak this morning about 48 hours. We have had votes within 48 hours of the application being filed.

Our labour board generally will hold a vote within a week of an application being filed without a time limit in there. There are exceptions, however, and we've heard about remote locations where there are times when the labour board says, ''We can't do it; we can't go up to northern Saskatchewan to this rural community where a construction project is taking place.'' What they do then is they have a mail-in ballot. In those circumstances, because it's normally construction, they are allowing a three-week period, but the vote is actually considered to be taken on the day that the application and the voting card is sent out, which is usually within four or five days of the application coming in.

Quite frankly, the process is quicker and I think it's more accurate to use a vote and get the vote in the can very quickly after the application is filed than it is to use only the card-based system where you aren't able to test the wishes of the majority of the employees in the bargaining unit.

Senator Fraser: Thank you very much.

For Professor Slinn, my first small question, I think there is a typo in the notes that you provided for us, which are a very handy reference to all those statistics you cited. On the second page of the notes as I have them, toward the bottom, you say, ''For BC, in the 1987-87 period, with poor enforcement of election time limits . . . .'' I assume that one of those 87s is a typo. Do you happen to have with you the correct date?

Ms. Slinn: That's right. I believe that's to 1997.

Senator Fraser: 1987 to 1997?

Ms. Slinn: I believe so.

Senator Fraser: Thank you.

You have very interesting statistics about the number of complaints filed against employers as against unions for unfair labour practices. Are there statistics about the nature of the most common complaints on either side?

Ms. Slinn: The most common complaints against employers — not just complaints but also unfair labour practice findings, and again these are all in the certification organization context — are illegal communications and illegal terminations of workers in the certification time period.

When it comes to complaints against unions, it's much less scattered in terms of what the complaints are. Typically it's complaints about organizing in the workplace, which is prohibited under the legislation.

Senator Fraser: So if you're going to organize, you have to find the potential union members outside the workplace?

Ms. Slinn: Exactly. Organizing in the workplace during working hours is an unfair labour practice, and that was the bulk of the complaints and findings against unions.

Senator Fraser: Complaints against employers and findings against employers of I think you said of improper communications, but you had earlier told us —

Ms. Slinn: Illegal.

Senator Fraser: You earlier told us there is quite a wide range of communication permitted. What's not permitted?

Ms. Slinn: Individual interrogations, they're called, so threats; coercion; a promising of benefit; and captive audience meetings where, again, intimidation, coercion or threats are communicated. Those are the types of communications that are prohibited in every jurisdiction. It was those types of communications.

Senator Fraser: Thank you.

Senator Tannas: I want to return for a second, Ms. Slinn, to what Senator Baker reminded me of, which is some of the transcripts or some of the quotes from the judgments that were made in Saskatchewan. I remember one striking example, which is that it's not this court's job to preserve the win-loss record of unions going forward. I think essentially what you were getting at was that that wasn't what this is about. There's no right that the union has to continue to have the same record in a secret ballot system that they have in a card check system. I think your evidence, Ms. Slinn, is that the card check system produces a worse win-loss record for union certification than a secret ballot system does. Is that right?

Ms. Slinn: I think that's the reverse, actually. The probability of certification is higher under a card-based system than under a vote system, if I understand your question correctly.

Senator Tannas: Good, that is what I meant. I just didn't say it properly. But that's sort of the point, isn't it?

I spent some time in East Africa when I was a boy, and I got to witness an election in Uganda where people stood by a blue post or a red post to determine whether they were voting for this candidate or that candidate. When a secret ballot came in, everybody was horrified because the results suddenly changed. The governing party didn't win as much.

I must be missing something. I don't understand where this affirmation right seems to exist that a secret ballot will produce a different result and that that is somehow bad. Can you help me with this?

Ms. Slinn: I think that the more constructive way to look at this question of what kind of mechanism do we want to put in place to determine the union representation question is to look at it in terms of that question rather than are we affirming cards or is there support for a vote per se.

The crucial part of a union representation mechanism is that it, as best as possible, accurately reflects the true wishes of employees about whether they want union representation or not.

You've heard, I'm sure, that there are questions and concerns about the card mechanism, but what is currently not sufficiently addressed in any collective bargaining legislation in Canada is sufficient protection for employees where the union representation question is determined by a mandatory vote. The evidence clearly shows that it is more difficult for employees to become certified, to get union representation, under a mandatory vote system. The evidence and research also clearly shows and suggests that it is because it provides an opportunity and an incentive for employers to interfere with that choice. The evidence is that employers do interfere, that they interfere very aggressively and that it's very effective.

What we really need, if the decision is that the vote mechanism is the one we want to use, is to put safeguards in to properly protect employees, and that's what we don't have in any legislation right now to a sufficient degree and we certainly don't have in Bill C-525.

I don't prefer the question of whether we affirm the card based system or not. I think the question that really needs to be addressed is this: If we're going to decide on a union representation mechanism or mechanism for deciding that question, put one in place that, as best as possible, captures employees' true wishes and protects them and ensures that is accurate. The vote systems in place currently don't do that satisfactorily, and Bill C-525, as it poses vote systems, does not do that.

The Chair: You have time for a comment but no response, if you want to make a comment.

Senator Tannas: I do. I think the issue is the telling of the other side of the story is what too often gets classified as employer information.

Senator Moore: Thank you, witnesses, for being here. I think this might touch on the question that Senator Tannas and maybe Senator Baker asked earlier.

Ms. Slinn, in your remarks you said:

Unlike with card certification, employers are always informed in advance of the vote. This gives employers a substantial opportunity to defeat the organizing attempt.

I think you just responded to some of that, but I'd like to know what Mr. Seiferling and/or Mr. Rochon have to say about that.

Mr. Seiferling: I don't like the idea that because some employers have done bad things, therefore all employees should be lumped into the category of the problem you're talking about. It seems to me that what we want to do is ensure the employees' true wishes are being recognized.

When I look at Justice Richard's decision in the Court of Appeal, at paragraph 112, he clearly said that ''. . . the secret ballot is the bulwark of every electoral system in the free world.''

Senator Moore: The ''hallmark,'' wasn't it?

Mr. Seiferling: He said ''bulwark.'' Later, on the same page, he said, ''. . . a secret ballot regime does no more than ensure that employees are able to make the choices they see as being best for themselves.''

The more information you get before you make that decision seems to me to make the system better rather than worse. It's like having an election where only one side gets to speak to you, the one side that wants the one result. You get the union representatives that are getting the cards and are the only people with the source of information for you before you make a choice that's going to affect your life. I make the statement that you give up all of your rights as an employee to a union, whether you agree with what they're doing on an issue or not.

The problem is it's an exclusivity model that takes away the individual's rights. Surely before you do that, you should be able to hear both sides of the argument and then express your wishes, as Justice Richard said, and what you think is best for yourself after you've heard both sides.

The problem with this unfair labour practice and number thing is you don't know why they changed their mind in the system. They vote less, I agree, but that may be because they've got more information now than they had before because they've now heard the other side.

Senator Moore: They could do that, or they could be influenced by either side.

I have nothing against Justice Richard's comment and the need for secret ballots. That's not the issue here. The issue is who knows what and when. It's the timing.

Mr. Rochon, do you have anything to say about that?

Ms. Slinn, when he's finished, maybe you could comment to defend your position.

Mr. Rochon: About the timing issue, I think it's worth at least understanding what is out there in the provinces. There are currently six provinces that specify in their legislation that there should be either set specified limits or say that the vote should be held as soon as possible. That's Alberta's legislation. The five other provinces are British Columbia that specifies a 10-day limit, Ontario specifies a five-day, Manitoba seven. You've got Nova Scotia that looks at five, as well as Newfoundland, which looks at five days.

In all of these cases, it is important to note that there is always some discretion left to the board to extend those limits. Now the level of discretion varies. In some cases it has to be under exceptional circumstances. In others, it is left pretty much at the full discretion of the board to determine that. So mechanisms do exist out there.

There is no such limit in the Canada Labour Code at this point, nor is there anything proposed in Bill C-525.

That said, there are also other mechanisms in some of the other provinces and one mechanism we have in the code as well, and that is the power of the board to hold pre-hearing votes; in other words, the ability to order that a vote be held before making all of the determinations with respect to the size of the bargaining unit, who would be a member of that bargaining unit, et cetera. So there is at tool, at least, to expedite the process even though there is no specified time limit.


Senator Dagenais: Ms. Slinn, correct me if I am wrong, but you said card certification was one way to join a union. Sometimes, different unions face off in an effort to pressure employees into signing a membership card. That is true of the CSN and FTQ in Quebec, for instance, especially in the construction industry. That being said, the purpose of the bill is obviously to protect those who are most vulnerable, workers, as I told our previous panel of witnesses. What I am picking up from you and others, however, is that secret ballot voting may lower the unionization rate. Bear in mind that voting by secret ballot is a symbol of democracy. It means that democracy is being exercised. Although it may lower the unionization rate — or perhaps even increase the rate — the fact remains that the fruits of democracy are being exercised. Is that not true?


Ms. Slinn: I think it's problematic to analogize union representation votes with political elections. Keep in mind that should a union win a certification vote, this simply provides access to the collective bargaining process. The employer's governance of the workplace is not diminished in any way. The union, at that point, cannot impose any terms or conditions on the workplace. It simply provides the opportunity to bargain collectively.

Secondly, in a political election, there is no default for no representation. That is exactly the question in a union representation vote: Will the workers be represented, or will they not be represented? So they're very different things.

The analogy between union representation votes and political elections is not a clear one to me. It's a troubling analogy, so I am uncomfortable putting too much weight on it.

The other thing to keep in mind is who are the parties, so to speak, in the union representation vote? It's not a contest between the employer and the union. This is a question put to the employees about their choice about representation. Do they want to be represented by the applicant union, or do they not want to be represented?

In terms of the informational component or debates or getting information about the pros and cons of unionization, recall that the employer has access to workers every day. An employer who wanted to communicate with employees about the benefits or the shortcomings of unionization has every opportunity to do this long before the organizing period. Even during the organizing period, again the restrictions on employer communications with employees are not that tremendous in any jurisdiction in Canada.

To characterize a vote as a democratic right, I think, can obscure some of the difficulties and the risks to employees when applying that mechanism in the certification context.

Again, I'm not opposed to the vote mechanism. My view is that the research shows that it increases and adds certain vulnerabilities to workers. It's important, therefore, to build in greater protections for the workers if the vote mechanism is going to be applied to the union representation question.


Senator Bellemare: I have two questions. After listening to this panel of witnesses and Mr. Seiferling's most helpful explanations, I have come to an assumption, which I would like to hear your thoughts on. The fairest way for people to assert their fundamental will as members of a company's workforce is for a secret ballot vote to be held by mail, within a short timeframe, as soon as a certification application is made. I'd like to hear your position on mail-in ballot voting. Electronic voting is also an option, but the vote could be conducted through mail-in ballots.

I would also like to hear Ms. Slinn's thoughts on this. I seem to recall reading that, in Europe, card certification is sometimes used but that it is confirmed by mail-in ballots. Would you kindly comment on that? I read that somewhere, but I could not tell you where.

Mr. Rochon, what would you have done had the department drafted the bill? What procedure would have been followed? Thank you in advance for your answers.

Mr. Rochon: I could not tell you what would have happened had the Minister of Labour introduced the bill. Speculating as to what the content of the bill would have been is a hypothetical question. But the standard procedure is to consult the stakeholders to discuss the amendments proposed in the legislation. One thing that would have been different is that the Department of Justice's legislative drafting unit would have been used, allowing for a thorough review of all the legislation concerned by jurilinguists, revisers and so forth. It is a more complex and lengthy process but it ensures a quality piece of legislation.

Senator Bellemare: Thank you. I would like Ms. Slinn to answer my question regarding mail ballot voting in Europe.


Ms. Slinn: To address your question about vote by mail, a co-researcher, William Herbert, and I looked at this question in the context of North America in great detail, actually, and we obtained data from several labour relation boards. Several public sector labour relation boards in the United States have a very long history of using mail ballot votes predominantly and a very long history of using telephone and Internet votes as their primary way of holding representation elections. The Canada Industrial Labour Relations Board has also recently experimented with use of telephone and electronic votes in certain circumstances, and the British Columbia Labour Relations Board has begun to explore that also.

We found in our study that that approach, moving toward electronic and telephone votes in particular, but I could also perhaps consider it to be extended to mail votes, holds some real advantages, primarily in that it removes the election from the workplace. It therefore increases employee secrecy and removes or reduces the amount of scrutiny that individuals are put under when they attend to vote in person in the employer's workplace.

The electronic and telephone votes also have the advantage of being relatively quick. They are automatically electronically tallied. Mail votes do have the difficulty that it takes up a lot of board staff time to actually put together the mail packages and to then count them by hand.

There are real advantages to this, and our view was that this is a better way. If you're going to use the vote mechanism for union representation elections, doing so electronically or with telephonic votes or a mix holds some real advantages and does increase the protection to employees.

We also found that none of the —

The Chair: I'm going to have to stop you there.

Senator McInnis.

Senator McInnis: Just very briefly, as I don't want to take up the time of the committee, the case is being put that it's more difficult to get certification with the secret ballot. I'd like your comment, Mr. Seiferling. I don't believe that we can quantify by way of statistics as to allegedly there being fewer unions than with the card check system by using the secret ballot. I think you've answered the question. Rather, it's the fact that, after hearing the facts on both sides, a determination is made by the employee as to whether or not they want a union.

Mr. Seiferling: That's exactly correct. That's been my experience with the system since 2008. Quite frankly, it's quicker. People say that the card system works better, but the problem with that is that a lot of times with the card system you would get an unfair labour practice filed in that system, and they would go through the system before the certification would take place.

The beauty of a vote taken right away is the board looks at the results of the vote and if an unfair labour practices filed, one way or the other, they tell parties whether there is any interest in continuing with the fight. In Saskatchewan, we have not got a position where we have no unionization as a result of the changes. The process is just so much quicker and so much neater when you have a vote based upon a secret ballot vote, whether it be secret ballot immediately in the workplace within a week, or as little as two days, or whether you take three weeks to do a mail-in ballot. The results will show both sides what kind of support there is, and you go into your bargaining relationship with a lot healthier attitude than if you don't know if the majority of the employees really want the union. I find the system works better when you have a secret ballot vote than when you have a system whereby you are relying on something that might be tainted or where one side didn't get a chance to make a position known.

The Chair: I have a quick question, Mr. Seiferling. You said something earlier that I found intriguing, if I interpreted it properly, in terms of the card check system. In an organizing effort, there's no obligation to inform. A certification drive could take place without a significant number of employees being even aware of the fact that it was under way?

Mr. Seiferling: Not in our old system. The system before 2008 was one where the cards would be filed and the employees wouldn't be aware that the application was filed, and they also wouldn't be aware that the majority was already — the cards were already there. You could have certification without a number of the employees knowing there was even an organizing drive. That was my experience in Saskatchewan, and there were problems. They don't get reported because we clear them up by getting a letter signed saying there's something flawed about what's happened here, and the board will then say, ''We made a mistake,'' and they will make an appropriate order based upon what they call clerical mistakes. I've got examples of those if they need them, but what I'm saying is the system is so much neater when the people know there's going to be a vote and they go and vote. You know quickly what's going on and you avoid a lot of costs at the other end.

I heard testimony yesterday about how long it takes the federal board to do one of these things with the system they have now. You can make it a lot quicker than that just putting in a secret ballot vote like they have here. We have a province with probably 12 people working for the board. We have a chair and a vice-chair, and we get the votes done in two days. You have to remember that 90 per cent of labour law is at the provincial level. If they can do it that way in a province like Saskatchewan with that few staff, you would think that the federal board would be able to easily make this quick and efficient.

The Chair: We have time for a brief second round.

Senator Baker: Before I get to my main question to you, Mr. Seiferling, you quoted paragraph 119 of the Court of Appeal decision. I agree that that's there and I thought the word was ''hallmark.'' Still I point out to you paragraph 103. The court determined in 2013 that it is more difficult to arrive at a certification when you have a secret ballot than if you didn't. The court agreed with the Court of Queen's Bench on that.

My main question is this: This is being appealed to the Supreme Court of Canada. When you look at the question presently today before the Supreme Court of Canada, and they're about to arrive at a decision, the question is whether or not the mandatory vote provision ignores employees' freely expressed wishes and so on. What do you think about that? Do you think that the Supreme Court of Canada's decision about to be brought down would have any relevance to this bill presently before us?

Mr. Seiferling: Well, my personal position is that I don't think it's a major issue. I can't say how a court is going to find that a vote is Charter protected in some way. If you look at the appeal to the Supreme Court of Canada, 26 factums were filed. From the union side, only one factum dealt with this question. The other 25 didn't deal with it at all, and there was a response, of course, from the government on the position taken.

When you look at the principle involved here, I wouldn't hold up anything on the basis that a secret ballot vote is constitutionally protected. I mean, that would run against the whole of the parliamentary system. I would be reluctant to do anything other than to say that it's going to be a minor issue, as it was in the Saskatchewan courts going through Court of Queen's Bench and Court of Appeal.

The Chair: Seeing no additional questions, I want to thank all of you for appearing before us today and providing us with your views on Bill C-525. It's very much appreciated.

Our final item of business today is the committee's clause-by-clause consideration of Bill C-525. We have officials in the room to assist us, if necessary. We could call them to the table, at this point, if anyone has any questions. Would you like them to come forward?

Senator Baker: Perhaps they might just take their seats because we'll be dealing with amendments. We'll probably be dealing with other amendments in the Senate. They can't give us advice there, so here would be a better place, if needed, Mr. Chair.

The Chair: From the Public Service Labour Relations and Employment Board, we have with us Ms. Sylvie Guilbert, Executive Director and General Counsel; and Virginia Adamson, Senior Legal Counsel. Mr. Charles Rochon is back there as well, if he'd like to join us again. I remind senators that he's from Employment and Social Development Canada.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-525, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation — bargaining agent)?

Hon. Senators: Agreed.

The Chair: Agreed. On division?

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 2 carry?

Senator Bellemare: I have an amendment to propose.


I have two amendments. The first is amendment B-1. It occurs frequently. This main amendment also gives rise to consequential amendments.

The second amendment makes a correction to a later clause, without which, the bill would take authority away from the board. That probably would not have happened had the bill been reviewed by the law clerks.

With respect to clause 2, it is proposed:

That Bill C-525 be amended in clause 2, on page 2, by adding after line 6 the following:

''(3) The secret ballot representation vote shall be taken within five working days after the order made under subsection (2), unless the Board orders otherwise.''

That is the main amendment I am proposing throughout.


The Chair: Perhaps you want to elaborate on your reasons.


Senator Bellemare: It has become clear that secret ballot voting can have consequences. I am not so sure that the statistical studies that have been done are all relevant, given all the factors that come into play.

From what I have heard, however, I am convinced that the timeframe for holding a secret ballot vote needs to be as short as possible, in order to prevent intimidation. Ideally, it would be the shortest timeframe possible; in Canadian legislation, the timeframe is five days. It could have been two, but I chose the shortest timeframe I could find.

I didn't indicate that the ballots should be cast at home, but ideally, ballots should not be cast at the place of work. My understanding of everything we have heard is that a secret ballot vote by mail or electronic means would be preferable.

I tried to keep things as simple as possible, with the reference to ''five working days,'' but I was working under the assumption that the board would hold a secret ballot vote either by mail or electronically, and not at the workplace, so as to keep any intimidation from happening.

In my view, we need unions right now, so I would not want these amendments to be construed as negative towards the labour movement, quite the opposite. But I do think their legitimacy is at stake.

In several European countries, unions have a seat on the company's board of directors, and that is to the company's benefit. If they do not adopt the secret ballot vote model and continue to face challenges to their legitimacy, there is no way they will ever be allowed on companies' board of directors, as they are in some of the world's most productive countries.

I, personally, believe that the labour movement is part of the solution to our economic woes, not part of the problem. Not to be patronizing, but that is why I feel secret ballot voting would bolster the legitimacy of unions in Canada.

That is my opinion, and for that reason I am proposing a very short voting timeframe in order to minimize the window for potential intimidation as much as possible.

In a nutshell, that is my rationale for the amendments.


Senator Tannas: With respect, Senator Bellemare, you have a lot of experience in this area, but I would disagree.

We heard testimony from the Canadian regulator that would oversee the votes. It was interesting to note from a number of independent witnesses that the organization was indicated to be world renowned in their management and stewardship of Canadian labour issues. We heard also from the senior executive, the leader of that organization, that with the appropriate resources they could undertake the votes in a timely fashion. I think we all agree that a timely vote needs to occur to ensure that there isn't, by neglect, an outcome other than the true, free and informed will of the employees. For me, the way it's drafted puts the onus on the board, and their track record speaks for itself to undertake the elections in the appropriate amount of time, as opposed to an artificial time.

Senator Fraser: I support this amendment, chair, for a few simple reasons. Ms. MacPherson from the CIRB made it plain that she agrees that votes should be timely and that the standard she hoped to meet was the Ontario standard of five days. Five days was, in her view, an appropriate time frame. I think everybody we have heard from agreed that timely votes are important.

It is also true that the CIRB has no assurance that it will get extra resources and that even with the resources it has and the very limited number of secret votes that it conducts now, it has terrible trouble meeting its own performance targets. It seems that if we don't put this into the law and make it mandatory, the CIRB, an estimable organization that clearly wants to do a good job, will have terrible difficulty. If we put it in the law, it would create pressures on everybody to do whatever is necessary to meet the standard.

Senator Bellemare has an escape clause in her amendment. She says the ''vote shall be taken within five working days'' unless the board orders otherwise. This would allow for exceptional circumstances and would mean that the decision to delay a vote would have to be public. It would have to be a formal order so that over time we would understand why votes would be delayed. I think this is an excellent amendment.

Senator Batters: I am opposed to this amendment. We heard two very compelling things in testimony. The situation proposed in the bill simply makes an optional process that is already used and well in place into a mandatory process. Also, Mr. Seiferling this morning gave very compelling testimony talking about his substantial experience in Saskatchewan. Although Saskatchewan does not have a specific timeline in their legislation, the way that the board handles it there, votes are often taken even quicker than five days.

Senator McInnis: If we're voting, for those who are in favour of the bill, exempting out time limit, fine. That's the essence of the bill, and people agree with that. But to now amend this would send it back. A better option would be for you to seek an amendment at some point and insert the days. Not now, because as I understand it, this could in effect kill the bill. Is that what we want? That's why I think the option for you is, at a later date or immediately, to try to get an amendment to the bill after this is passed.

Senator Bellemare: I have another amendment, which —

The Chair: Let's deal with this first, though.

Senator Bellemare: It's just that the bill will have to be amended anyhow because, otherwise, we will be taking out some power of the commission. This is at clause 8, so that's why I didn't put it here. It's a really technical amendment, but there was an error in the drafting of the bill. It's a comma and ellipsis. By doing that, it refers to a section of the act, 39, and this will be different. It's not consistent. The drafting of the bill is not consistent.

The Chair: Senator, I understand your point, but let's try to focus on the amendment you put on the table before us. Do you have anything additional in response to what other members have said?

Senator Baker?

Senator Baker: I'm wondering about the wording of the amendment. At the end of the table we have at least two experts in the drafting of union legislation. Would they have any comment, Mr. Chair, on the actual wording, the drafting of the amendment?

The Chair: Do you wish to comment?

Sylvie Guilbert, Executive Director and General Counsel, Public Service Labour Relations and Employment Board: One of the concerns I have is the phrase ''working days'' and not having had any chance to look at our legislation to see if, in those particular areas, we are using calendar days, business days or days. That would be a first concern I would have.

In terms of the length, we're in the hands of Parliament as to what the number of days would be, but the terminology ''working days'' has a certain connotation.

The Chair: Anything further, Senator Baker?

Senator Baker: I wonder if Senator Bellemare could reference where she obtained these words in English and in French.


Senator Bellemare: We are still on the five working days amendment. The expression used in the French version is ''cinq jours ouvrables''. That refers to business or work days and usually does not include Saturdays or Sundays.


Senator Fraser: I was a little puzzled by Senator McInnis's comment that to amend this bill would kill it. No, it wouldn't. It would just send it back to the House of Commons.

Senator McInnis: That's right, but the —

The Chair: Okay, let's try to focus on the amendment.

Senator Fraser: But the second point that I think is worth taking into account is Senator Bellemare's contention that — forget this amendment — there a technical amendment needs to be made.

The Chair: We're going to get to it.

Senator Fraser: I understand that, but if we're going to amend the bill anyway, then why not do something that I think witnesses, including probably the CIRB itself, would agree with?

Senator Batters: With respect to Senator Bellemare's comment about ''five working days'' being a commonly used phrase in French, that doesn't necessarily mean that it's the appropriate phrase to use in this particular bill. As the witness from the department just said, there may be a very specific definition that's commonly used dealing with days, working days or calendar days in the act, so that's problematic.

The Chair: All right, we have exhausted debate on the amendment.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: I'm wondering if we should have a show of hands. The clerk will call them out.

All those who are supportive of adopting the motion in amendment? Four.

All those opposed? Six opposed.

The motion is defeated.

Senator Fraser: On division.

The Chair: Well, it's a clear division.

Shall clause 2 carry?

Some Hon. Senators: Agreed.

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 3 carry? Senator Bellemare?


Senator Bellemare: As for the subamendments to clause 2, are we voting on all the amendments containing the reference to five working days?

The amendment concerns a number of clauses in the bill, so I was wondering how we were proceeding. Must the amendment be proposed for each of the clauses it pertains to, for the sake of consistency?


The Chair: I'm not clear. I only have one amendment for clause 2 before me. Do you have another one there? Oh, I didn't see it.


Senator Bellemare: The amendment containing the reference to the five working days has to be incorporated into several of the bill's clauses.


The Chair: Do you want to move that amendment, then, and we'll discuss it?

Senator Bellemare: Okay.

Senator Baker: Mr. Chair, I think what Senator Bellemare is referring to are the consequential amendments further on.

Senator Bellemare: That's right.

Senator Baker: But with the defeat of the initial amendment, it would not require us to consider all of the other consequential amendments.

The Chair: Okay. So this flows from the others?

Senator Baker: Yes. So we don't deal with it, but there is an amendment, as you point out, Mr. Chair, at clause 2 that we haven't dealt with.

The Chair: Clause 7.

Senator Baker: The huge one; the long one.

The Chair: That flows from the original amendment, I think.

Senator Baker: Does it? Consequential, okay.

The Chair: All right.

Shall clause 3 carry?

Some Hon. Senators: Agreed.

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 4 carry?

Some Hon. Senators: Agreed.

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 5 carry?

Some Hon. Senators: Agreed.

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 6 carry?

Some Hon. Senators: Agreed.

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 7 carry? Senator Bellemare?


Senator Bellemare: It is moved that Bill C-525 be amended on page 5, by adding after the heading ''PUBLIC SERVICE LABOUR RELATIONS ACT'' and before line 13 the following:

''8.1. Paragraph 39(d) of the Public Service Labour Relations Act is replaced by the following:

(d) the authority vested in a council of employee organizations that is to be considered the appropriate authority within the meaning of paragraph 64(1.1)(c);''.

The amendment has been proposed for technical reasons. It addresses an oversight in section 39, the point being to ensure consistency throughout the bill. Section 39 should specifically refer to paragraph 64(1.1)(c) but does not.

As it is currently worded, section 39(d) of the act reads as follows:

(d) the authority vested in a council of employee organizations that is to be considered the appropriate authority within the meaning of paragraph 64(1)(c);

What it should say is 64(1.1)(c). Otherwise section 39(d) is devoid of meaning under the act. And if it has no meaning under the act, the board would lose one of its regulatory powers. That is what the law clerk told us.

Although it is a very minor error, it has significant technical implications and would render section 39(d) of the Public Service Labour Relations Act null and void, taking away one of the board's regulatory powers. That is why this amendment, which adds (1.1), is so important. The law clerk who helped us draft the amendment went through the act line by line and brought it to our attention yesterday that there was a serious problem. There is an issue with how the bill is drafted as regards the Public Service Labour Relations Act.


Senator Baker: So you're saying what is in this bill that we're now considering has changed something in the Labour Relations Act. That now means that something else in the act has to be changed. Is that what you're saying?


Senator Bellemare: Yes. We have to make the recommended change to clause 8. Not doing it would render section 39(d) null and void or alter its meaning under the Public Service Labour Relations Act. I can't elaborate further because the explanation is technical, but it would take away one of the board's regulatory powers.


Senator Baker: I understand it's technical, but you're saying that because of this bill we have before us, consequential to this we have to change a section of the act itself. And if we don't change it, we take away a power that the board already has under the act.


Senator Bellemare: That's what I was told, yes. The law clerks can debate the merits.


Ms. Guilbert: I'll try to put this in layman's terms. The board has regulatory power under 39(d), so it has the authority to make regulations on what is a council of employee organization that is to be considered appropriate authority. In other words, it gets to determine the authority that a council of employee organizations has, and that authority is within the meaning of paragraph 64(1)(c) of the act.

The way that Bill C-525 was modified is that the various components originally in 64(1)(a) to (d) have been moved to 64(1.1) and therefore the original reference should have been made to (1.1) where those various components have been moved down to.

It is a technical amendment, but it does affect it. If nothing is changed, the board would have regulatory authority over a specific paragraph of legislation that no longer exists and would not have the power that used to exist and has been moved somewhere else. There's no legislative reference to it.

I just want to put this on the table: It's not a regulatory power. However, under section 36 of the Public Service Labour Relations Act, the board has a general power. But that is not a regulatory power. There are provisions under the Public Service Labour Relations Act that specifically deal with regulatory powers and the process of legislative interpretation. If you find specific powers to make regulations, you should not necessarily use a general power in order to make regulations.

Senator Baker: The general authority exists. How serious is this specific example?

Ms. Guilbert: I'm not in a position to answer that question. However, if the powers have been granted in the act after the legislative changes in 2005 and have been modified through serious and important changes in the regulatory scheme under the Public Service Labour Relations Act, under C-4 and C-31 with the coming into force of the ATSSC, none of the regulatory powers were changed even though other regulatory changes have been made.

Senator Baker: Does senior counsel have anything to say about this or do you generally agree?

Virginia Adamson, Senior Legal Counsel, Public Service Labour Relations and Employment Board: I would echo that there is a technical issue.

Senator Baker: But how serious is the technical issue and is it covered off by other sections of the act? That's what I'm wondering.

Ms. Adamson: No.

Ms. Guilbert: No.

Senator Baker: It's not?

Senator Fraser: It seems pretty clear that when the Senate gave second reading to this bill, the intent of the Senate was not to deprive the board of regulatory powers and that we would be betraying our duty if we didn't fix it.

Senator McInnis: The intent of the bill, if it's passed here, we would agree with it. It is a technicality. Surely there is a way, better minds than mine, that would make a determination that this did not have to retrace where it's already been, and so that is the question that has to be answered. Can that happen?

Senator Batters: On this one, I don't think we have enough information before us. Particularly, we don't have any information before us in the witness testimony. I'm not sure how long Senator Bellemare has known about this potential issue, but she's obviously known about it long enough to get legal advice on it. However, we haven't had any witnesses talk about it, and we just had a very knowledgeable department witness who said that she wasn't in a position to tell us whether this was serious or just a mere minor technicality.


Senator Bellemare: The law clerk we had asked to help us prepare the amendments on the ''five working days'' brought it to my attention yesterday. He came across the error as he was working on the amendment.

I am an economist, not a lawyer. I won't claim I can argue the legislative merits of this technical mistake. All I can say is that an error was made and that it has consequences. I wanted to make sure everyone was aware of that.

The error eluded the bill's sponsor, as well as many other people, but a law clerk with a trained eye picked it up.


Senator Baker: I think it's very unfortunate. We had the board before this committee, and the board chair is a very experienced legal person. She read the bill thoroughly and did not notice it and her advisers did not notice it, but to me it appears clear from what you've said. I get the connection now. It's something that is not overridden. You can't take one section of the act and accomplish what that particular section deals with in the absence of an amendment.

Do you have any further suggestions for us apart from accepting the amendment that has been proposed?

Ms. Guilbert: To clarify, Ms. MacPherson is the Chair of the Canadian Industrial Relations Board. This is affecting the Public Service Labour Relations Act.

Senator Baker: Yes.)

Ms. Guilbert: As I've now had a chance to see what the proposed subsection 64(1.1)(c) would look like, the subject matter is about determining whether an employee organization forming a council has vested appropriate authority to enable it to discharge the duties and responsibilities of a bargaining agent. It is about the legitimacy of an employee organization in its discharge of duties; and the board's regulatory powers are to establish boundaries or sandbox or measurements to determine what that vested authority is. If I were to put it on a scale of whether this is about a timeline extension or determining vested authorities, I would say it's on the higher scale of impact.

As to other solutions, we're not legislative drafters. We're specialists in the Labour Relations Act. Others more qualified would be better placed to provide counsel.

Senator Batters: This hearkens back to the Scrutiny of Regulations Committee, which looks at exactly these kinds of things. Perhaps a technical issue was not realized initially or fully explored. That committee looks in depth at those kinds of issues, goes back and forth with departmental officials and other people that they need to get the information from to suggest changes if needed. The committee recently dealt with the miscellaneous statutes amendment bill that we have before Parliament right now.

Senator Fraser: The Standing Committee for the Scrutiny of Regulations doesn't look at laws; it looks at regulations.

Senator Moore: In a very untimely way and manner.

Senator Fraser: Yes, there is that.

Sufficient evidence has just been given to us to understand that this is not a minor technical issue. This is an issue of some real significance. I don't know why we're all here if we're willing to pass into law bills that we know are flawed and have previously unknown and unintended consequences that we now know will be the consequences.

At the very least, chair, I suggest for your consideration that we suspend clause-by-clause consideration until we have a chance to hear from legislative drafters, whoever the appropriate legal eagles would be. Ms. Guilbert, and I understand her reluctance, doesn't want to give us what we would take as the final word on this. There is serious doubt now before us about the accuracy and propriety of the bill as written.

The Chair: I'm not opposed to that, since I'm dealing with the comments from the Deputy Leader of the Opposition, if there's an agreement or willingness for this committee to meet tomorrow morning, if that's possible. Obviously, we need authorization of the chamber. Otherwise, this will be lost through delay in the sense that we don't have any more sitting time scheduled.

Senator Fraser: Certainly, given the remarks I just made, I would be prepared to give leave for this committee to sit outside its normal time slot.

I have to say that tomorrow morning, as distinct from Monday afternoon, would present serious difficulties for me because, as you know, I pretty well have to be in the chamber when the chamber is sitting, and we're sitting at 9:00 tomorrow morning. If tomorrow morning were the time slot that colleagues agreed upon, then I'd figure out something.

The Chair: My only concern is ensuring that we have adequate time if the committee's decision is ultimately to move ahead with the bill or amend it. We want to ensure that we have chamber time remaining as well so that we can deal with it in some way, shape or form.

Senator Fraser: As you know, chair, I haven't been giving leave for anyone to do anything, but since I'm the one who's arguing here —

The Chair: Unless there is serious objection, I think we need a little bit of time to clarify the situation for all of us before we move forward. We can all live with that, and we'll aim for tomorrow morning at 9 a.m.

That concludes our business.

(The committee adjourned.)

Back to top