Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 51 - Evidence - November 21, 2018
OTTAWA, Wednesday, November 21, 2018
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 4:15 p.m. to study the subject matter of those elements contained in Divisions 8, 15, 16 and 21 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures (topic: Divisions 8, 15 and 16).
Senator Chantal Petitclerc (Chair) in the chair.
[English]
The Chair: Good afternoon. Thank you all for making it here in a timely fashion. Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[Translation]
I’m Senator Chantal Petitclerc from Quebec. I’m pleased to be chairing the meeting today.
[English]
Before I give the floor to our witnesses, I invite my colleagues to please introduce themselves.
Senator Seidman: Judith Seidman, Quebec. I am deputy chair of the committee.
Senator Eaton: Nicky Eaton, Ontario.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Munson: Jim Munson, Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
The Chair: We’re continuing our study of the subject matter of those elements contained in Divisions 8, 15, 16 and 21 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures.
Yesterday, with the officials from Employment and Social Development Canada, our committee focused on Divisions 8, 15 and 16. Our discussions with the witnesses today and tomorrow will also concern these three divisions.
[English]
I would like to introduce our witnesses. From Federally Regulated Employers - Transportation and Communications, Derrick Hynes, President and CEO. From the Canadian Bankers Association, Sandy Stephens, Assistant General Counsel; and Tasmin Waley, Senior Legal Counsel. Welcome to our witnesses. I thank you for being here, and ask to please keep your remarks to seven minutes for each opening statement. We will be following with questions.
We will begin with Mr. Hynes.
Derrick Hynes, President and CEO, Federally Regulated Employers - Transportation and Communications: Thank you Madam Chair. Good day, senators. I am happy to be here. I think the last time I was with you, I was speaking on the topic of cannabis. I’m thrilled I’m actually not talking about cannabis because I feel I have spent far too much time on that issue over the past two years. Not that it’s not interesting, but I think this might be a welcome change.
I’m here today on behalf of FETCO, Federally Regulated Employers. We are an employers association within the federal sector, primarily transportation and communications companies. We have existed as an association for over 30 years. Our members are generally large employers within the federal sector. We encompass some 500,000 of the nearly 1 million private sector workers within the federal sector.
What I want to talk about is specific to Division 15 within Bill C-86. I want to start with two overarching introductory messages.
The first is our organization was both surprised and disappointed to see these changes to the Canada Labour Code were introduced in a budget omnibus bill. We have been critical of previous governments for doing just this thing and the same holds true today. This bill, as you know, is nearly 900 pages long, and includes enormous diversity. To review it in less than two weeks and provide meaningful feedback is difficult.
We have been engaged with the government in consultation on matters under Part III for nearly two years. The pinnacle of this process — the introduction of this legislation — now feels a bit rushed to our members. It’s also important to note we can’t find any reference in Budget 2018 to changes proposed under Part III of code. We wonder if it is inappropriate to be discussing it within the confines of this budget bill.
The second key point gets to the issue of business costs and business costs implications. Over the past three years, enormous workplace changes have been introduced via the legislative and regulatory process, that amount to major new cost pressures for businesses. In the past three years, the following have been introduced or are currently being contemplated: Paid personal leave, family responsibility leave, expanded vacation leave, caregiver leave, Indigenous practices leave, leave for victims of domestic violence, medical leave, changes to the EI program, accessibility legislation, flexible work arrangements, pay equity, termination compensation, and elimination of wait periods for certain compensatory benefits. As well, we have recently initiated a discussion around a potential new statutory holiday.
On an individual basis, when we look at these items in isolation, I think it would be reasonable to see justification for each. The challenge is the cumulative cost effect of many of these changes because they are, when you add them up, consequential for the business community. To our organization it seems somewhat contradictory that while, on the one hand, the government is engaging in a national dialogue on concepts like business investment, workplace productivity and economic competitiveness, it is simultaneously driving up the cost of doing business.
With that, let me go into some comments specific to this bill. FETCO has a fundamental concern with the government’s recent consultation on modern labour standards. That concern is this: We believe the government has applied a provincial lens to the federal sector. Our argument is these sectors are not the same. As such, we believe the government is solving a problem that largely does not exist. Government speaks a lot of vulnerable workers and precarious workers, yet the government’s own data tells a different story. The federal sector is mainly made up of permanent, full-time unionized jobs with pensions and benefits. Most in the context of mature collective bargaining relationships.
Bill C-86 introduces a series of changes to the Canada Labour Code to raise standards for a small minority of workers in the sector. This has been done, we believe, in the absence of the normal balance that is sought when changes to the code are contemplated. Two key challenges we believe are going to emerge because of this: First, we believe these changes are going to create conflicts in collective agreements where similar provisions already exist. Second, we believe these changes will create inflationary pressure at the bargaining table and across organizations. Both of these are going to substantially increase costs for the employer community.
Now, appreciating this ship has likely sailed, given the proposed changes are contained in a budget bill and will likely pass, we have some specific recommendations we would like to put forward to C-86 for your consideration as you contemplate particular amendments. We would like to be constructive, to ensure the bill proceeds as seamlessly as possible. I have eight proposals. I’ll also deliver them in writing so you can have them at your disposal when you contemplate the change.
One, we would recommend the qualifying exempting language — there is language in the bill that, quote, says this: “threat of serious interference with the ordinary working of the employer’s industrial establishment.” That is a qualifying language that allows organizations to exempt from certain provisions of the bill. We believe this language should be broadened to allow greater operational flexibility. We believe it’s too restrictive. You’ll see that language in various locations throughout the bill.
Two, we propose that a clause be added to the bill to accommodate rare situations where the collective agreement labour standards might be lower than the new Part III labour standards, such that the collective agreement language will stay in place until the next round of collective bargaining to allow organizations the time to catch up in negotiations with their union.
Three, that a clause be added to the bill to accommodate situations where certain employers or classifications are presently exempt through other regulations, from current provisions of the code that are being amended or added to.
Fourth, added language that any conflicts that emerge between any of these changes and the current collective agreements defer to the collective agreement and that these changes not be cumulative to provisions that currently exist within collective agreement language.
Fifth, that references to equal pay for equal work are removed. If this is not possible, that qualifying language be added to allow for pay differences based on experience, skill, tenure, and other differentiating categories.
Sixth, that references to five personal leave days, of which three are paid, be removed. If this is not possible, that a clause be added that allows employers or organizations to opt out of this leave if similar provisions exist in that organization, or the criteria for using this leave be tightened considerably. Otherwise, we will have essentially created three new vacation days for employees.
Seventh, that section 502 of Bill C-86 be amended to specifically allow for the electronic posting of the Canada Labour Code and its associated regulations.
Finally, that changes to section 239(2) of the code be reversed. That change will permit a health-care practitioner rather than a qualified medical practitioner to provide a certificate justifying an illness. I can elaborate further in the question and answer period if you wish. Thank you.
The Chair: Thank you very much.
Tasmin Waley, Senior Legal Counsel, Canadian Bankers Association: Thank you. The Canadian Bankers Association is pleased to be before the Standing Senate Committee on Social Affairs, Science and Technology to discuss Division 8, 15 and 16 of Bill C-86. The Budget Implementation Act Part 2. The CBA is the voice of more than 60 domestic and foreign banks that help drive Canada’s economic growth and prosperity.
The CBA advocates for public policies that contribute to a sound, thriving banking system to ensure Canadians can succeed in their financial goals.
Canada’s banks and their subsidiaries contribute significantly to job creation and Canada’s labour market, employing over 275,000 Canadians. Banking is a knowledge-based industry that offers high-quality and well-paying jobs. Over 80 per cent of jobs in the banking industry are full-time positions. Banks paid $27.5 billion in salaries and benefits to their employees in 2017.
Many of the banks’ human resources policies and practices, including those relating to diversity and pay equity, exceed legislative requirements.
Banks in Canada proactively support and foster diversity and inclusion in their workforces. Banks quickly became leaders in the ongoing effort to build representative workforces, and were among the first to articulate a business case for equity and diversity at work. As of 2017, women constituted 58 per cent of the workforce at Canada’s six largest banks, which is substantially more than any other federally regulated sector.
The banking industry exceeds the government’s benchmarks for representation of women at executive, professional, and middle management levels, with women making up 37.6 per cent of all senior managers in banking in 2017.
In order to ensure that compensation is gender neutral, banks have established internal pay equity plans, and have implemented a number of policies and procedures to ensure equitable compensation for both men and women. Canada’s banks strongly believe in equal pay for work of equal value and will continue their leadership in this area.
In addition, banks are leaders in professional development. As part of their commitment to continuous learning, banks offer employees an array of educational programs through traditional and electronic channels. Banks also actively promote youth employment by recruiting young Canadians and by participating in or sponsoring programs that encourage youth employment, such as educational co-ops, entrepreneurial, stay in school and scholarship programs.
We applaud the federal government’s efforts to modernize the Canada Labour Code with the goal of better reflecting the realities of the current workplace. Federal labour standards were established in the 1960s and have not changed significantly since then, although much has changed in the workplace. The banking industry participated in consultations relating to some of the proposals in Bill C-86. We look forward to continuing to work with the federal government moving forward on these proposed changes.
It is worth noting some of the changes proposed in Bill C-86 are already implemented by Canada’s banks, such as many of the leave-related entitlements, rest periods, notice of work schedule and vacation entitlements, reaffirming the industry’s commitment to being best-in-class employers.
Thank you again for inviting the CBA to participate in the committee’s review of Bill C-86. We would be happy to answer any questions.
The Chair: Thank you very much to our witnesses. I remind my colleagues of five minutes for questions and answers. Try to be brief if you have many questions. We will try for a second round.
Senator Seidman: Thank you both for your presentations, and all of you for being with us today.
I might start, Mr. Hynes, with trying to look at some of the issues you presented. First of all, I’m not sure if I missed it, but for the audience watching us, could you please tell us what organizations you represent? Who is FETCO?
Mr. Hynes: FETCO members are all federally regulated firms in transportation and communications. There are 28 members of FETCO. They are name-brand organizations like Air Canada, Bell, Canada Post, CN, CP, FedEx, Jazz Aviation and NAV CANADA. There is a long list available on our website.
Senator Seidman: That’s helpful for the listening audience so we get a sense of the size of the organizations we are dealing with.
Mr. Hynes: Outside of the banking industry, we represent most of the substantial employers within the federal sector.
Senator Seidman: Okay. That’s really helpful. Thank you.
You made a lot of points quickly so I won’t have the opportunity to question all the ones immediately staring me in the face. I’ll try with a few.
You said the government is applying a provincial lens to the federal sector and it’s solving a problem that doesn’t exist. Could you elaborate on that a bit more, please?
Mr. Hynes: Yes. We gave a lot of detail around this issue in our submission during the consultation. One of the fundamental points we have been making from the very beginning in responding to the government’s discussion paper on this issue was there was a real focus in many of the proposals put forward around getting to vulnerable workers, precarious workers, those in involuntary part-time situations and the like.
What we have said — and you can look specifically at the government’s own data to document this — is most of the federal sector is not in that grouping. Now, you can see that if you look provincially across the country, there is a greater prevalence of precarious vulnerable work across the provincial sector. The federal sector is largely, when you look at transportation, communications and the banking industry, substantial jobs that are permanent, full-time, often unionized and with full pension and benefits.
I could spend my time giving you data to document that from the government’s own discussion paper. I don’t want to waste your time doing that. On one data point, if we want to look at something like involuntary part-time employment, according to the government’s discussion paper, there are 17,700 jobs considered involuntary and part-time. That’s 1.8 per cent of the federal sector. We’re not saying that’s not a concern, because obviously those people are important as anybody else is. When we start making changes that apply to the entire code to get to an issue that affects maybe 2 to 3 per cent of the workforce, we create complications in other areas.
Senator Seidman: Okay. The next point you made is about the consequences for the business community and the significant costs these changes are going to imply. Could you elaborate a bit more, please?
Mr. Hynes: I can’t quantify it, but I think a reasonable person can look at many of these changes the government has introduced in the labour portfolio over the past three years as largely being reasonable if you look at them in a one-off basis. I provided you with a long list of some of my changes in my speaking points. I won’t review those.
In the cumulative, they result in substantial business cost increases for the employer community that are problematic. That’s feedback I hear from my members, because we have had, under the current government, three very busy years of consultation on a whole range of issues. The point we have made on numerous occasions is some of the changes appear to have an evidence-based rationale for making them. Others, we have difficulty seeing the rationale behind making some of the changes which have resulted in substantial costs when you add them all together.
Senator Seidman: Okay. Do I have any more time left?
The Chair: You do.
Senator Seidman: Wonderful. I’m going to keep moving along.
In your recommendations — which we don’t yet have in writing. I’m hoping we might receive them as soon as possible — one of them had to do with something you mentioned in your presentation. You said there were conflicts with similar collective agreements that already existed. Then you made a recommendation. Could you just explain that a bit so we understand a bit better? Thank you.
Mr. Hynes: Part III of the code tries to create a minimum standard for the labour standards. Nobody disagrees that’s a good idea. The challenge that emerges in some of these changes is the government is introducing new provisions that, in some organizations, collective agreement language already covers. A couple of examples include the personal leave provisions, the three paid days of personal leave, for which there is a list of rationale for why it can be used. Many organizations would already have language that would have that type of leave an employee could take.
Leave for victims of domestic violence is clearly an important issue for folks who are dealing with what is clearly an awful situation. In a lot of organizations, there is leave that currently exists that can be used for that reason. That creates a conflict. Then the question is: Is it cumulative? There is no language I can see in the bill that exempts organizations that may already have provisions that capture these important concerns. That’s the concern we are raising.
If there could be some sort of qualifying language built into the bill so that for some of these new provisions, if there is already a provision in place in an organization that has been freely negotiated between management and labour, we believe it should supercede and the others should not apply.
Senator Eaton: I just want your opinion. Do you think with FETCO, and most employees having good, well-paying full-time jobs, is this legislation really necessary or is it more political than needed?
Mr. Hynes: That’s a pretty loaded question.
Senator Eaton: Of course it is.
Mr. Hynes: I’m not going to take the fifth on that question. There are provisions in this legislation that we have difficulty finding evidence-based analysis to justify why they are required.
If the government believes there are pockets of vulnerable workers in the sector for which greater protection is required, I think that’s perfectly legitimate. I do not believe the discussion paper and the consultation to date have pointed to a lot of examples where a clear justification has been shown that a problem exists that needs to be solved.
Senator Eaton: When the government appeared before us, they could not justify, either by data or research, why some of these things were needed. That’s interesting you feel this way.
You mentioned the Canada Labour Code being changed to allow a certificate for sick leave to be provided by a health-care practitioner rather than a qualified medical practitioner. What does a health-care practitioner mean? What problems do you foresee this creating?
Mr. Hynes: It looks to us like the bill is trying to make more expeditious and seamless the obtaining of a “doctor’s note” to justify sickness. We understand why there would be a motivation to do that. The problem I’ve heard from some of our member organizations is broadening the term to “health care practitioner” is going to allow professionals who may not have diagnosing qualifications to diagnosis sickness in places where they might not have the expertise to do. There are concerns we may have greater access to these sorts of notes, with less justification behind them.
Senator Eaton: Don’t a lot of collective agreements have so many sick days per year in them — “you’re allowed X number of sick days”?
Mr. Hynes: Yes. I can’t speak to the specifics, because each is different. Some have moved way from “sick leave” and moved into short-term disability plans, but on the whole, the short answer is “yes.”
Senator Eaton: Do they require a note? If I had that in my collective agreement, and I have the flu and I’m taking days that are all allowed to me by my collective agreement, do I have to come to you with the note?
Mr. Hynes: That varies depending on the agreement. Normally it is the case it would need to exceed a certain number of days before you hit that threshold.
The Chair: Thank you.
Ms. Waley, did you have something to add to that?
Ms. Waley: Nothing specific at this moment. Thank you.
Senator Munson: Thank you all.
You gave your report and statement. I’m not sure where the Canadian Bankers Association stands. You’re applauding, you say a lot of things are already in place, the banks have been innovative and doing what they’ve been doing with employees. We’re here to listen to recommendations. Mr. Hynes said the train has left the station, but we can still try to persuade the government to do more, or less.
Where does the bank stand? I’m curious about that and am inviting you to give recommendations, if you have any.
Ms. Waley: I mentioned in my opening remarks, the Canada federal labour standards have not been updated since the 1960s. There was a review, the Arthurs report, in 2006. Those changes were not implemented at the time.
We applaud the government having undertaken this task of updating the code, recognizing the world of work has changed, the economy is much more global and technology changes. We acknowledge a lot of work has gone into making these changes.
Senator Munson: The government shouldn’t be involved in telling the banks what to do? You’re saying to us the banks have all of these things in place. I’m trying to figure out —
Ms. Waley: We do have a number of these changes in place in some of our banks. We’re not saying the government should not be telling us what to do. We respect and comply with federal labour standards. Whatever the legislation ends up being, we will definitely comply.
Senator Munson: Thank you.
Mr. Hynes, at the beginning of the recommendations, you didn’t say who was exempt. There are some organizations that are exempt. Then you said the list should be enlarged.
Who is exempt? Who else should be exempted?
Mr. Hynes: I think what you’re referring to is —
Senator Munson: It’s the first thing you said on recommendations, I think. You said eight, and it was the first thing you talked about.
Mr. Hynes: There is no list of exempted organizations. There are examples. In my third point to you, the one thing I noted was there are current regulations. For example, in the rail sector, there are Running-Trades regulations that set the hours of work and the working conditions within that sector. That’s all approved by the minister through a process.
At times, there will be inconsistencies between what the minister approves within that regulatory environment and what now will be articulated under Part III. We are asking for some language in the bill that will specifically acknowledge and permit those exemptions to occur. Otherwise, we will have a legal conflict from one set of regs to the next.
Senator Munson: The companies you mentioned are pretty successful companies. They seem to be making a profit most of the time and seem to be doing well. You mentioned to a previous senator about solving a problem that doesn’t exist and driving up costs. Is it to the point when you’re talking about workers that driving up these costs and benefits for the workers could put these companies in peril and put some of the smaller companies you represent out of business? Is it that dicey with all of these new things being proposed in this particular budget implementation bill?
On the one hand, we’re concerned about workers and the rest of it, and on the other hand, employers from your testimony, have been doing good things to help workers in a healthier workplace.
Mr. Hynes: I’ll answer that from two perspectives. First, you talked about small- and medium-sized employers. I would argue the cumulative effects of the changes that have been made in the labour portfolio over the past three years, I’m sure, are having a major impact on the overall business-cost structure of small- and medium-sized enterprises. That’s my first point.
The second is around large organizations. The point I hope I’ve communicated today in reading through these comments is in large, sophisticated organizations that are within the federal sector, typically unionized, many of the terms and conditions of employment are the result of long-standing collective bargaining relationships. It’s fair to say when those trade-offs are freely made and negotiated among the parties, we end up with a resulting workplace and set of workplace standards the parties agree is fair.
The point we’re making is in changes such as those being proposed, the government is doing two things that will likely create a problem. One is potentially creating conflicts between the provisions already freely negotiated. The second is creating some arbitrary inflationary pressure at those bargaining tables.
Is it going to put companies out of business? It would probably be hyperbolic for me to engage in that sort of dialogue, but business costs matter in a globally competitive market place. Organizations are vigilant in terms of looking at the bottom line. When they make these trade-offs for what constitute the workplace standards, it’s complicated when government then creates a different standard that may have an effect from an inflationary perspective.
Senator Omidvar: I have a question for each of our panellists. First, thank you all for being here.
Let me start with Ms. Waley. I read your brief. I must say I’m not used to getting such elegantly packaged material. I agree with Senator Munson that I’m not sure what to make of what you’re saying. Let me ask you a practical question. I want to support what you said; namely, it is the financial services industry, particularly the banks, that have raised the bar on many issues of diversity and equity. I want to congratulate your members on that.
What in this bill is above and beyond the current policies within your membership? Is there anything in this bill that will require your members to go beyond what they are doing?
Ms. Waley: Some of our banks are doing some of the things in the bill. An example would be paid jury duty, sick days, paid medical leave, reservist leave and vacation entitlements.
There are certain things related to different procedures for complaints. There are provisions around retendering of contracts, things like that, and a new head of compliance and enforcement. Some of these are net new obligations.
Senator Omidvar: Do you have any comments on those? Do you think this is the right road to take or do you have some proposals?
Ms. Waley: We don’t have any specific amendments. There are numerous changes in Bill C-86. Our members are assessing them and determining the impact on their businesses.
Senator Omidvar: At this point there is no vociferous opposition to any one particular measure?
Ms. Waley: No.
Senator Omidvar: Or support?
Ms. Waley: No.
Senator Omidvar: You’re pretty neutral at this point.
Mr. Hynes, thank you for appearing again before this committee. I remember you from the cannabis days — we weren’t smoking then.
I went on your website. I noticed you have 500,000 employees roughly. You said in your presentation that because most of your employees are well paid and are unionized, the protections are already there and that this bill targets 2 per cent or less. I don’t have your brief in front of me and I’m trying to remember. However, 2 per cent of 500,000 is 10,000 people, if my math is right, and 10,000 people is 10,000 people. Can you tell us more about them? Are they primarily women? Are they primarily new entrants into the workforce? Do you have a demographic snapshot of this 2 per cent which is 10,000 people?
Mr. Hynes: I would say it’s actually more than 10,000 people. The point I was making around 2 per cent was a data point to drive the point home that about 2 per cent of the jobs within the federal private sector — of which there are some 900 and some thousand — are involuntarily part time. I’m a part-time worker not by my own choice.
To me, that is probably a group of people who you would say are living in a precarious work world or are in a vulnerable situation. I don’t know who they are. I think it’s fair to say that most of them are not employed by organizations we represent because we represent large employers who offer the types of jobs I articulated earlier.
The point we’re making around this number is the government is applying a lens to this problem to get to a very small group of people. I’m not saying 20,000 people or 17,000 people are not important because they are important. The point we’re trying to make is maybe there is another way to solve that problem through a consultative effort to find out who those people are and what provisions might be put in place to ensure their minimum labour standards are at the right level. All that being said, even if these changes are all put forward as they are today, and those who are in vulnerable situations are covered by those changes, the request we have of you is there be some carve out or language added to the bill such that those who are not in that group would be exempt from some of these provisions. Our organizations are often exceeding these standards. These new rules are going to create conflicts when there is an assumption this new provision in Part III and the provision offered in the collective agreement are cumulative.
Senator Omidvar: Can you give us some context? Give me an example where a provision in this bill would create a conflict for the majority of the employers and employees in your association because they already have these or in fact it is better?
Mr. Hynes: Yes, I can give you many of them. This bill has two new provisions that allow for paid leave. One is around personal leave. There are requirements around when that can be drawn down, namely, three days of paid leave and also five days for victims of domestic violence. Those are both important issues. If the collective agreement has a leave that accommodates those concerns but the employee feels as though there is a bucket of leave here and a bucket of leave here, you’ve created a new cost for the employer community that we think is unfair.
Senator Omidvar: In a way, you’re saying it could create double dipping.
Mr. Hynes: Yes.
Senator Omidvar: Can’t that be resolved through agreements with your unions?
Mr. Hynes: It can’t be resolved if the legislation specifically lays it out to the contrary or else we will end up in conflict, where grievances are filed because I want my three days of personal leave. I might say, “We have personal leave in the collective agreement.” We’re trying to be constructive. In terms of being constructive, can we add some language to the bill to accommodate those situations where there are provisions that already exist?
Senator Omidvar: You said you were going to get us your remarks, with possibly some language around changes you’d like to see.
Mr. Hynes: I will.
The Chair: We have time for a second round.
Senator Ravalia: My first question is for Mr. Hynes. Some of the companies you mention have operations outside of Canada and may have a more global outreach as well. If you were to compare the benefits being recommended in this bill, as compared to what happens in international jurisdictions, do you think we’re putting ourselves at a disadvantage in terms of competitiveness?
Mr. Hynes: I wouldn’t know. That’s not a question I could answer. I wouldn’t have the data to answer it.
Senator Ravalia: You wouldn’t have a global sense; okay. To get back to your eight recommendations, if we were to pick the top three that you think would be most appropriate to apply in terms of being responsive to the needs of your constituents, which three areas do you see leading the pack?
Mr. Hynes: First, softening of the language in the bill that allows greater flexibility in situations where there is a threat of serious interference with the ordinary working of the employer’s industrial establishment to allow for greater flexibility for the employer to have exemptions.
A good example is the 96-hour rule around shift changes. In 24/7 continuous operating organizations running on a schedule, four days’ advance of a schedule can be tough, particularly when we have other provisions that kick in like flexible work arrangements or sick leave provisions. If employees can’t be on shift, other employees have to be found. If that language could be made a bit more flexible, that would be very much appreciated.
Then the conversation I had with Senator Munson around where other regulations exist and if some language could be added to the bill to capture that.
Regarding leave provisions, if there could be some way to ensure that any leave provisions that currently exist within an organization are not stacked — if we could accommodate that — that would be constructive and helpful.
Senator Ravalia: My second question was with respect to your concern about alternative health practitioners providing notes. I think some of this has stemmed out of the fact there is such a shortage of primary care and family physicians and a potential lack of access that nurse practitioners have evolved into that role, often equally qualified and capable in terms of assessing both acuity and chronic illness states. If you were sure the practitioner was someone credible, and met Canadian standards in terms of conducting assessments that were appropriate to your various working groups, would that satisfy you, do you think?
Mr. Hynes: Yes, I think it would the way you described it. If there was a standard around the diagnosing of a condition, then that would seem reasonable.
[Translation]
Senator Mégie: My question is for Mr. Hynes. Many consultations were held to establish this budget. I want to know whether, during the consultations, you were already presented with a fait accompli in terms of all the provisions or whether you had broader issues to address. You could have made recommendations such as the recommendations that you’re making now. These recommendations would have been made earlier, even before the bill was prepared. How did the consultation proceed?
[English]
Mr. Hynes: That’s a good question. We did. We were engaged quite extensively in all the lead up consultations. It was in March of last year we submitted a formal brief to government.
The way these consultations are managed is a discussion paper will be released to stakeholders with a series of themes, of ideas and concepts that might be contemplated. The government reaches out broadly within the stakeholder community online for everyday Canadians to submit comments, more formally with stakeholder groups such as the employer community or the labour movement, and others, who have existing relationships with the government.
The level of specificity included in the discussion paper is usually not that great. What the government is looking for in terms of the conversation is a discussion around general themes, trends, ideas and concepts. We don’t get to see the legislation in draft form before it’s released to know the specifics. We would have submitted quite an extensive brief and raised many of the concerns I’m raising today. In fact, the fundamental thematic concern we have raised around potential conflicts within the organization we have raised numerous times and specifically with the minister, one-on-one. We don’t get to review the legislation. There is cabinet secrecy. The legislation gets released. Then we see it.
To your question, many of the provisions contained in here, we would have commented on them in the consultation but not necessarily with the level of specificity when it becomes legislation.
Senator Dasko: My question was very similar to Senator Mégie’s question.
I apologize for being late to the session today. From what you have said, it makes a lot of sense that whether you use the concept of double-dipping, however it is described, if a company offers five days of leave for domestic violence and the law has six days, it would seem logical the employee would not be owed 11 days.
It seems like a very simple concept. How has the government responded to what, to me, seems a very common sense concern you have raised, and would seem to be solved very simply?
Mr. Hynes: There are specific provisions in the bill that speak to where collective agreement language exists, it will prevail. As an example, in the 96-hour notice required of shift changes. There are other provisions. The issue we raised does not flow through the entire bill.
Senator Dasko: I understand. That would seem to be simple to solve. Would the government listen to you? It’s in parts of the bill. They obviously understand the concept. They have dealt with it in some parts. Can they not deal with it in the other parts of the bill? Maybe I’m coming at this from the outside. It would seem to be fairly easy.
Mr. Hynes: I agree with you. I would think it is solvable.
Senator Dasko: Good. That sounds great.
The Chair: Thank you very much. We have time for a few more questions. Before we go to Senator Seidman, I hear some of these measures already exist at some level in different organizations. I also hear the doubling of these measures, like we have said. I want to hear you, because we also heard the code has not been changed much since the 1960s.
Do you agree that some sort of a baseline of measures and changes are needed in that it should be all across, no matter what your specific organization is doing or not? This involves talking with the government to make sure that it doesn’t double. Are we saying those measures are good in terms of making sure everybody gets some sort of a baseline of services?
Mr. Hynes: The short answer is yes, I agree with you. Two points: One, we think changes that are contemplated should be based on evidence-based analysis that demonstrate they are solving a problem. Second, as we have talked through many questions I have received today, it should accommodate practices that currently exist within organizations and within current collective agreement language.
The Chair: Thank you.
Ms. Waley: In terms of your comment about everyone having a certain baseline level of entitlement, yes. Banks see ourselves as employers of choice. We strive to recruit and retain the best talent. We want to exceed those standards where we can.
The Chair: Thank you.
Senator Seidman: If I could just briefly come back to the consultation. I have a question to Mr. Hynes, but I would like to ask Ms. Waley: did you submit a brief to the government on the consultation? Did the bankers association do that?
Ms. Waley: We were involved in the consultations. We presented a written submission in 2017.
Senator Seidman: Did you make recommendations?
Ms. Waley: Our submission was quite high-level. We had three basic themes. The first was around clarity and just ensuring that legislation is clear so stakeholders can understand their obligations. We also talked about streamlining. For example, the complaints process. We talked about the need for flexibility given the changing nature of work, in particular flexible work arrangements, which the government has implemented through Bill C-63.
Senator Seidman: Okay. You’re happy and you’re feeling your recommendations have been taken in one way or another?
Ms. Waley: Well, definitely our recommendation around flexible work. Banks were already doing many of these things. We are still analyzing many of the other provisions.
Senator Seidman: Okay. Thank you.
Mr. Hynes, I would like to go back to the consultation process. You mentioned it right at the outset of your presentation. You obviously submitted a serious brief. Were very many of your recommendations accepted or implemented in this legislation?
Mr. Hynes: I have our brief here. We submitted this in March 2018, which was at the end of the consultation around potential Part III changes. The way the consultation and discussion paper was organized was, rather than ask for specific recommendations, to try to ask for your perspective on a series of issues. They asked questions around annual vacation, paid leave for personal reasons, meal breaks and rest periods, daily time off, right to disconnect, portable benefits and equal pay for equal work.
We went through each of these on a one-by-one basis and laid out our perspective on that particular issue. I would say one thing to the government’s credit in terms of the way this has unfolded in the bill.
There are a number of provisions discussed in the consultation that have not found their way into the bill because the government conceded — and here I think they did hear us — that they were complicated enough that they probably require further study. These include the right to disconnect, for example, from your workplace when you’re not on shift; the concept of portable benefits when you move from one employer to another; minimum wage. There are some examples they have decided to park, strike a technical committee of experts to look at as we move into the future over the next few months.
Senator Seidman: Okay. That’s helpful. I want to change gears and get your opinion. We had the officials from the department yesterday. We talked about this newly created head of compliance enforcement. It was hard to understand the deletion of specific categories of positions, and all of it lumped into this head of compliance and enforcement with no real delineation of how that was then going to be directed into particular needs on the ground. I’m wondering if FETCO has an opinion or advice on this newly created head of compliance and enforcement?
Mr. Hynes: We haven’t really dug into it in great detail. On the surface, it seems like a reasonable change: they will centralize the administration of compliance under the code and give an ADM level person within the department the ability to delegate that authority, to ensure compliance is managed more effectively. It seems reasonable to me. I see no reason to doubt why it would not be a reasonable approach.
Senator Seidman: I am going to ask you again, Mr. Hynes: There are a lot of very complex provisions now, changes in the Labour Code, and implications for companies and how they are going to comply with them. I would like to know how onerous you think it’s going to be for the companies to track these things? How onerous is it going to be for employees to be educated?
Employees will need to know there are all these new aspects to the Labour Code. How do you see all that playing out?
Mr. Hynes: In terms of the education piece, one of the very positive things we can say about the federal sector is we have a very productive tripartite relationship in the way that the Canada Labour Code is managed. It is in partnership between government, through ESDC, the labour movement largely led by the Canadian Labour Congress and its affiliated unions, and then the employer community, through FETCO, the CBA and other organizations. In terms of that communication piece, I think we work pretty well together to ensure we’re all heading in the same direction.
In terms of the changes, individually they don’t really set our hair on fire. It’s the potential implications, as we have discussed today, when there are hiccups underneath the changes. That’s the kind of language we’re looking for.
I think if we can accommodate some of those concerns as we have raised, and I will raise specifically in the written comments to you, we should be fine.
Senator Seidman: Excellent, thank you.
The Chair: Thank you. Ms. Waley, did you have something to add to that?
Ms. Waley: I’m okay, thank you.
Senator Omidvar: Ms. Waley, I’m going to get back to you. Because you’re such leaders in the kind of context we’re talking about, can you think about something that you wish would have been in the bill, a measure — based on your membership and the many employees in your membership — that has worked well, a promising practice, that you would like to recommend to us?
Ms. Waley: One area where we think the bill could have gone further with has to do with hours of work. Currently in the code, there is a limit of a maximum of 48 hours of work per week. We thought it might be beneficial to extend that to accommodate employees who have a legitimate interest in working longer for extra income, for on-the-job training, for professional development. But the caveat would be the employee could refuse to work more than the 48 hours. We think that is in line with this whole notion of more flexibility in the workplace.
Senator Omidvar: That’s helpful; thank you. Mr. Hynes, you said — it sort of tweaked my interest — you would like to see the reference to equal pay for work of equal value removed. Did you say that?
Mr. Hynes: No.
Senator Omidvar: What did you say?
Mr. Hynes: We would like to see the reference for equal pay for equal work removed. Equal work for equal value is pay equity. We’re supportive. That’s a different conversation. The provision around equal pay for equal work will limit an employer’s ability to pay employees at different rates if they have different status within the organization, full-time, part-time or seasonal, for example. It’s a common practice today that there might be variable rates of pay depending on the level of experience the person has, the skill set they bring to the job, the tenure they might have with the organization. This bill will prohibit that and will create a provision for jobs that are in essence the same, the same rate of pay has to apply.
Senator Omidvar: Again this goes back to the 2 per cent. Would this not help them? I’m assuming temporary, seasonal, part-time employees will be paid less than permanent employees. Am I right in making that assumption?
Mr. Hynes: I don’t know that for a fact. My sense is that’s likely true. There would be variable rates of pay depending on an individual’s status with the organization.
Senator Omidvar: But the bill gets to the heart of this inequity by levelling the playing field.
Mr. Hynes: What the employer community would say to that is flexibility is our first preference, and when that cannot be provided, that the criteria under which there might be some exceptions to that rule be broadened. There is some criteria in the bill right now. It’s very short. Our argument would be there could be some variation, based on the level of experience of that employee, the skill set they bring to the job, the tenure they have had with the organization and these sorts of things.
Senator Omidvar: I will think about that, thank you.
The Chair: I do not see any more questions for this second round. We are running out of time. On that note I will thank you very much. Thank you to our witnesses. It has been very helpful for us.
Colleagues, we are ready to begin with our next witness from the Canadian Labour Congress, Chris Roberts, National Director, Social and Economic Policy, Canadian Labour Congress. Welcome, Mr. Roberts. I remind you of seven minutes for your opening statement. It will be followed by questions. I invite you to begin.
Chris Roberts, National Director, Social and Economic Policy, Canadian Labour Congress: Thank you very much, chair. Good afternoon, honourable senators. It’s a real pleasure to be with you today. Thank you so much. Our president, Hassan Yussuff, who was scheduled to be here sends his regrets. He wanted to appear before you as well.
In my introductory remarks, I will restrict my comments to Divisions 8, 15, 16 and 21 of Part 4.
First, however, I want to commend the government for several measures found elsewhere in this bill. The CLC is especially pleased to see the federal Pay Equity Act finally introduced. Working women have been calling for this legislation for decades. This historic legislation will put women in the federal sector on a path toward equal pay for work of equal value. I also congratulate the government for repealing the Public Sector Equitable Compensation Act.
I’ll turn in my remarks to Division 15 of the bill. The CLC welcomes the government’s measures strengthening federal labour standards. Bill C-86’s changes to Part III of the Canada Labour Code are, in our opinion, much-needed and long overdue.
Since the comprehensive Arthurs commission report was published in 2006, federal labour standards have lagged behind provincial improvements. More importantly, they have failed to keep pace with significant changes in the world of work and employment.
We applaud the prohibition on pay discrimination on the basis of employment status. I welcome the opportunity, perhaps in questions, to correct some of the errors made by the previous witness in this regard.
Temp agency workers will be entitled to equal treatment in the bill. In our view, the new equal treatment protections in the code will complement and reinforce the new Pay Equity Act. Banning discrimination based on employment status will benefit low-income workers, women, workers of colour and newcomers to Canada. These workers are more likely to be employed in part-time, temporary, casual and seasonal work.
In our view, these protections should be extended to include a prohibition on discrimination based on date of hire, similar to Quebec’s provisions in their labour standards legislation. This would not interfere with seniority provisions as a bona fide justification for paid differentials. I would be pleased to provide to the committee language and concrete recommendations to that effect.
We are pleased that victims of family violence will now be entitled to five paid days of leave. However, we don’t see the rationale for introducing a three-month eligibility requirement for accessing paid family violence leave.
Paid leave is essential for working women coping with domestic violence. For women who need this leave, reintroducing barriers to access makes no sense. We recommend the committee eliminate this eligibility requirement.
Bill C-86 provides important protections for non-unionized workers in a contract retendering. That said, we feel the government missed the chance to stop employers from terminating bargaining rights and cutting the wages and benefits of unionized workers by flipping contracts. We urge the government to take steps to ensure all workers are treated fairly in such situations.
We have specific recommendations to provide to the committee to improve these provisions of Bill C-86.
Bill C-86 makes further improvements to the Wage Earner Protection Program. We are pleased the maximum payment will rise to the equivalent of seven weeks maximum insurable earnings under the Employment Insurance program. This new maximum will apply with respect to bankruptcies or receiverships dating back to February 27, 2018, the date of the 2018 federal budget. Importantly, the Wage Earner Protection Program will apply to liquidations under the Companies’ Creditors Arrangements Act, CCAA, or proposals under the Bankruptcy and Insolvency Act, without a bankruptcy or a receivership. This means in cases like the Sears Canada liquidation, workers would receive some protection under the WEPP program.
The CLC supports the EI parental sharing benefit enacted in Division 8 of this bill. We support the dedicated “use it or lose it” parental leave for the non-birthing parent. Research suggests that designated leaves for fathers, along with higher wage replacement rates, increase the take up of parental leave amongst fathers. Unfortunately, the wage replacement rate for parental benefits under the EI program is too low. At 55 per cent, or at 33 per cent if the family chooses to extend the shared leave to 18 months, we are concerned that taking leave may be unaffordable for many families and there may be weak take up of the benefit as a result.
Finally, Division 21 of Part 4 legislates the poverty reduction act targets. It is important to have a concrete target for poverty reduction against which progress can be measured. It should be pointed out it is well within the means of a country as rich as Canada to eliminate poverty, not merely reduce it. In our view, Canada should embrace the bold but feasible vision of eradicating the scourge of poverty. Thank you once again for the opportunity to be here. I look forward to your questions.
The Chair: Thank you. We will begin with the Deputy Chair, Senator Seidman.
Senator Seidman: Thank you, Mr. Roberts, for your presentation. You began by saying there were errors in the previous presentations. I want to ask you about collective agreements and potential conflicts with existing collective agreements and that cumulative factor.
I had a particular interest in hearing you say something about that — we all had a particular interest — but if there are other issues could we please hear about them?
Mr. Roberts: First, with respect to the equal treatment provisions in Bill C-86 which apply generally and also to temporary help agencies.
Equal treatment is expected now for workers of different employment status — part-time, seasonal, casual and the like — provided they work in the same industrial establishment, they provide substantially the same kind of work, the work requires substantially the same skill, effort and responsibility and the work is performed under similar working conditions. It’s not a provision that ignores differences in wages due to seniority, to merit, to the quality and quantity of employee output and any other reasons set out in the regulations. It simply prohibits paying a worker less for the same work that involves the same skill and with the same quality and quantity in the same workplace simply because they’re part-time rather than full time. We think that introduces a much needed and particularly welcome equity into the workplace, especially when you consider that women are far more likely to be in part-time positions and low-income workers and workers of colour, according to the research, are less likely to be in full-time full-year employment. We think those provisions will reinforce some of the other equity-building measures this government has undertaken.
With respect to collective agreements, there is a provision in the code right now — it is not in Bill C-86; it exists in the Canada Labour Code Part III — section 168(1.1), which provides that Divisions 2, 4, 5 and 8 of the act do not apply in conditions in which there is a collective agreement in place, provided that the provisions in those collective agreements are at least as favourable as provided in Part III of the code. The intent is precisely as was described. The Canada Labour Code Part III establishes minimum standards in what has been historically a relatively highly unionized jurisdiction with large unionized employers and collective agreement provisions that exceed those minimum standards in Part III of the code.
What’s changing is those minimum standards are becoming more important as the nature of work and employment evolves, as unionization declines and as precarious work — and here I include full-time employment, which can be low-wage and precarious — becomes more prevalent. These changes are more relevant now than ever. They simply underpin terms and conditions in the collective agreement. They don’t override or even necessarily compound.
Senator Seidman: If I could clarify, you said Divisions 2, 4, 5 and 8. What we heard from FETCO was it’s okay. There are some areas in the labour code where there has been specification — I think that’s what we heard — the cumulative effect won’t be in force; the conflicts will be dealt with. There are other parts of the labour code now and the new additions or changes are not dealt with in the same way. My sense from what I heard from FETCO is they would like to see an overriding clause that says in the case where the current collective agreement already deals with this issue, it isn’t meant to be cumulative as long as it’s dealt with in at least that fashion.
Mr. Roberts: He used two examples: domestic violence leave and paid personal leave.
Unions are only now starting to bargain domestic violence leave provisions in collective agreements in a widespread fashion. To the extent those provisions exist in a collective agreement and they provide for at least five days of paid leave and 10 days in total, the changes to Part III of the code contained in Bill C-86 with respect to the domestic violence leave have no relevance. They’re not stacked on top. That’s clear.
The collective agreement provision is the provision that applies. That says five paid days and 10 unpaid days. It’s the same with paid personal leave. If there is a provision bargained in the collective agreement that provides at least five days, the first three of which are paid, that is the provision.
If it provides less, then the Canada Labour Code Part III provisions would apply. It’s simply a matter of either/or.
As well, it wasn’t mentioned that under the equal treatment provisions in Bill C-86 — both of them — there are provisions that grandfather for two years any collective agreement provisions that fail to comply with those new requirements. The bill contemplates the complexities of phasing in important new protections for workers in a collective bargaining context.
Senator Seidman: Thank you.
[Translation]
Senator Mégie: I saw that you congratulated the government for some things, such as the regularization of wages in temporary help agencies. Is that correct?
Mr. Roberts: Yes.
Senator Mégie: Okay.
In the health care world, nurses and practical nurses often use these agencies. The approach is very well established. It helps them accommodate their family life, and so on. They work the hours that they want to work, which is why they prefer giving their availability to these agencies.
Once everything has been regularized, what will happen to this type of underground work? The nurses may no longer be able to work for these agencies. The agencies may disappear given that they make money from the wage difference. How will this affect the future of these temporary help agencies?
[English]
Mr. Roberts: Can you clarify the nature of the agencies you’re describing? Are they temp agencies?
[Translation]
Senator Mégie: I’m talking about temporary help agencies.
[English]
Mr. Roberts: It’s a good question. What those provisions of Bill C-86 do are twofold. One, they restrict temporary help agencies from exploiting workers they send to clients. They prohibit charging fees and essentially charging the employee for placement or the opportunity to work with the client and the like. That is welcome. I don’t see that affecting workers in those situations.
With respect to the equal treatment provisions that require temporary help agencies to ensure their employees are paid the same amount as the client is paying workers in their workplace for the same work, and with all of those criteria, it’s going to bring to light the kind of exploitation and inequality that has existed in many triangular employment arrangements whee a temp agency is involved.
It falls to an employee in a non-unionized setting to bring the complaint forward. We think that’s going to be a real challenge for non-union workers. It’s up to the worker in those situations to bring a complaint forward to their employer if they feel there is an imbalance. That’s a very challenging context in which workers will raise complaints. It’s an asymmetrical power relationship.
It’s unclear what the likely impact will be. Compliance enforcement and assessment will be a large part of whether these new labour standards are effective in improving the conditions of workers. I hope what happens is workers are able to stay in the employment in which they are employed, if they wish to stay employed, but to do so in a situation that pays them no less than other workers who are doing the same work, rather than driving them into other employment or underground.
[Translation]
Senator Mégie: How can we ensure that the agencies comply with the act in this area? What authority can take care of implementing the act?
[English]
Mr. Roberts: Good question. The 2006 Arthurs commission report, Fairness at Work, devoted considerable attention to the issue of compliance. It argued, I think persuasively, there won’t be a high level of compliance with federal labour standards until there are significant penalties for violations of labour standards, on the one hand, and a significant investment in the government’s labour program’s compliance inspection and enforcement.
That is a key unresolved question in the parts of Bill C-86 that deal with the new head of compliance and enforcement. A key consideration is going to be staffing and investment in an inspectorate that can ensure that employers know there are consequences if they violate labour standards.
There is a lot on educating employers and working with employers to ensure they know about their obligations. There is evidence to assess whether compliance is working. Every few years, Statistics Canada completes a federal jurisdiction workplace survey. That survey tracks compliance with a whole series of laws and obligations in the federal context — federal and private sector. It shows what you might expect: Large workplaces of the sort that FETCO represents — telecommunications, transportation — are more likely to observe and comply with federal labour standards.
It’s the smaller companies those large companies often contract with that are less likely to have a policy on sexual harassment in the workplace, which all workplaces are supposed to have. They are less likely to be living up to the requirements of federal labour standards.
We do have an evidence base. We just need a greater investment, in my opinion, in ensuring staffing and resources are available to apply the new federal labour standards in an effective fashion.
[Translation]
Senator Mégie: Thank you.
[English]
Senator Omidvar: Thank you for being with us.
I noticed you were in the room while we were hearing the witness testimony from the other two witnesses. I wonder if you would comment on the point of view put forward around pay discrimination on the basis of employment status. FETCO talked about competency. That does make sense, but at the same time, you want to make sure there’s equal opportunity for all.
Does this bill find the right balance, or do you think it does too much on either side?
Mr. Roberts: It does protect pay differentials on the basis of seniority, merit and criteria you would expect to be legitimate, bona fide grounds for justifying pay differentials, many which are enshrined in collective agreements, like seniority.
We think the equal treatment provisions could have gone further to include not just rates of wages but also benefits and total compensation.
In Saskatchewan, employers above a certain size have to ensure benefits are extended to part-time workers, as well, if they are extended to full-time workers. That’s not included in these equal treatment provisions and it’s an issue with the pay equity act as well. It’s not a total compensation question. It’s wages. We think they could have gone further in this regard.
With respect to tenure, if that means date of hire, we think there is reason not to allow pay differentials on the basis of date of hire, as Quebec has prohibited, because that allows employers to implement two-tier arrangements whereby new employees coming in, typically younger employees, will never be able to rise to the same rate of wages that existing employees enjoy based on a certain level of seniority. There are two different, permanent classes of wage rates. If those employees are performing the same work in the same industrial establishment under the same conditions, et cetera, they ought to be paid the same. Young people shouldn’t be paid less simply because they are young and simply because of the dynamics in that workplace. We think they could have gone further in some respects.
Senator Omidvar: Perhaps you can help me clarify. You talked about seniority being protected in most bargaining agreements. Then you’re talking about tenure. Are they not the same, tenure and seniority?
Mr. Roberts: Seniority is explicitly protected in Bill C-86 in the equal treatment provisions. That’s clear and explicit in the law. That is not an issue here. Employers who justify pay differentials purely on the basis of seniority have no problem.
If FETCO means, by tenure, simply when someone is arriving in the workplace, I don’t know if that’s the case, but I’m simply drawing a distinction between seniority and date of hire. Seniority is protected; date of hire is not included.
Senator Omidvar: We need some clarification. I wonder if my colleagues agree that I’m swimming a little here between tenure and seniority. Are they not the same thing?
The Chair: Could you maybe give an example?
Senator Eaton: I thought tenure was an academic thing where you’re employed forever, whereas seniority is a matter of just how long you’ve been in the job and where you are in the hierarchy.
Mr. Roberts: I think the two meaningful categories are the ones I laid out. The meaningful categories of equal treatment are the ones included in Bill C-86: seniority, which has a definite meaning in collective agreements, but also in workplace law and employment law; and the issue of two-tier agreements or orphan clauses, as they are called in the Quebec arrangement, which set up two different categories of workers with no common understanding of seniority across those categories of employees. Does that make sense?
Senator Omidvar: I’m going to think about it.
The Chair: Maybe we can go further on the second round.
We have time for a second round.
Senator Ravalia: Thank you, Mr. Roberts. This may be way out there: Are there any provisions under the Labour Code or labour standards for seasonal migrant labourers, who may be a particularly vulnerable group?
Mr. Roberts: That’s a terrific question. Migrant workers are, to my knowledge, not specifically mentioned in Part III of the Canada Labour Code or anywhere in the code. There are provincial labour standards statutes that specifically protect migrant workers. The Canada Labour Code does not have that. It could very well and should be amended to specify protections for that particularly vulnerable group of workers.
Senator Ravalia: I’m thinking of the demographic in my own province, where we’ve had an influx of not only migrants but people awaiting their refugee claims and status and so on. These individuals are often targeted by a variety of different labour groups, often providing service at well below minimum wage but afraid to say anything because they come from societies where they are absolutely terrified of anything to do with the law. I think it extends into that realm, as well. It’s a bit disconcerting.
Senator Omidvar: Thank you, Senator Ravalia, you tweaked my interest there. This might not be in the bill, but this bill does propose amendments to the Employment Insurance Act. My information on EI benefits for migrant workers — and I think I heard a change there some time ago — is migrant workers and their employers pay into EI, but because they are seasonal migrant workers they do not derive any benefits, which is like free money for someone else which you have paid into. I find that incredibly unjust. Can you enlighten us as to whether that provision has been changed?
Mr. Roberts: No, it has not been changed. The EI parental benefits were denied to migrant workers under the previous administration and have not been restored. That is a demand of the Canadian Labour Congress to have that injustice rectified.
There is a broader problem in the EI program with regard to regular benefits, as well. It’s very difficult for migrant workers under the Temporary Foreign Worker Program, for instance, to gain access to those benefits they are paying for. You are absolutely right.
It’s a long-standing grievance. It is a subsidy from migrant workers, some of the poorest paid and most vulnerable workers in Canadian society, and it ought to be addressed as part of the general crisis of access to EI regular benefits that exists in this country.
Senator Omidvar: I worked on this file a few years ago on a commission out of Ontario. When we explored this, the solution was that migrant workers and their employers, if they cannot receive benefits, they should not pay into the pool. They should be exempt. And the counter-argument, which prevailed, was that it creates an unnecessary incentive for employers to hire from a migrant labour pool. That was the rationale behind paying into the pool: we keep a level playing field so migrant workers are not unnecessarily preferred over other workers because it costs the employer less money.
Does my memory serve me right?
Mr. Roberts: Yes. Our position is that all workers, and increasingly in an era of growing uncertainty and likelihood of income shocks at some point in a working lifetime, need an employment insurance program, like EI. Rather than dismantling that, we need to address the problem of access and the level of benefits that is denying more and more unemployed workers that benefit of having a safety net if they lose their employment.
Instead of creating these contradictions and these misguided incentives by creating categories of workers that would lead to all sorts of negative outcomes, we would much prefer to see those workers who are now paying into the system derive the benefit of what they are paying for.
The competition and the perverse outcomes you have just described are also addressed in Bill C-86 with respect to misclassification. There is a measure in the changes to the code which would explicitly prohibit employers from classifying employees as self-employed or independent contractors for the purposes of escaping their obligations under federal labour standards. There are also tax implications from their doing so.
When telecommunication companies in the federal sector call their employees independent contractors, there are enormous tax savings from CPP contributions, EI, health and safety, and the like. This bill goes some distance toward putting the onus on the employer to demonstrate the employee is in fact not an employee, but an independent contractor. It could have gone much further. They could have added a definition of employee to Part III of the code. There is no definition of what an employee is and is not in Part III of the code. There is an inherent ambiguity. We would like to have seen formal recognition of employees who are nominally termed independent or contractors of some sort, but who are in fact dependent on the employer, and are for all intents and purposes employees.
The Chair: Thank you. Before you go, I would like to ask one question to help me and maybe my colleagues with some perspective. Our previous witnesses both mentioned in the organizations they represented many of these measures were already in place, and maybe even at a better level. It gave the impression those measures were not going to affect not that large a group.
I was interested in knowing your take on that.
Mr. Roberts: I think one of the reasons the labour standards in the Canada Labour Code were not modernized in any significant degree since the 1960s is precisely because the federally regulated industries have historically been highly unionized with strong collective agreements. Minimum standards for non-unionized workers were more or less an afterthought.
That world has changed. What we see today, not only are those same employers contracting out and taking advantage of weaknesses in labour market regulation to take advantage of precarious and vulnerable workers, but also unionized jobs themselves are under pressure. We are seeing declining rates of union representation. We are also seeing more of the characteristics of precarious employment in full-time employment at large companies. It’s well-timed and important to begin to shore up those minimum standards which will help all workers. There is no question there is significant precarious work being done in the federal sector. One only need to look at the film, TV, screen, media and new media industry to see as precarious employment as one would find in any provincial industry or sector. That’s just one industry. Look at workplaces, look in the financial services industry, in the back offices and clerical work. You will find growing precarious work in the federal sector. This is important legislation. It is needed. It’s overdue, and it’s well-timed.
The Chair: Thank you very much. You have been helpful today. Thank you for being here. I remind you the committee is meeting twice tomorrow at 10:30 and 2:30. We will be hearing tomorrow from the following organizations: The Canadian Federation of Independent Business, Conseil du patronat du Québec, the teamsters union and the Vanier Institute of the Family.
(The committee adjourned.)