Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 51 - Evidence - November 22, 2018 (afternoon meeting)
OTTAWA, Thursday, November 22, 2018
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 2:38 p.m. to examine 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.
Senator Chantal Petitclerc (Chair) in the chair.
[English]
The Chair: Good afternoon everyone. Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. My name is Chantal Petitclerc.
[Translation]
I’m a senator from Quebec, and I’m pleased to be chairing the meeting this morning.
[English]
Before we give the floor to our witness, I would like to invite my colleagues to please introduce themselves.
Senator Seidman: Judith Seidman from Montreal, and I am deputy chair of the committee.
Senator Forest-Niesing: Good afternoon. I’m Josée Forest-Niesing from Ontario, replacing Senator Ravalia.
Senator Dasko: Donna Dasko from Toronto.
[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.
[English]
I would like to now introduce our witness. From Teamsters Canada, we have with us Mr. Phil Benson. Welcome.
[Translation]
Welcome and thank you for being here.
[English]
We are ready for your opening remarks.
Phil Benson, Lobbyist, Teamsters Canada: Thank you, Madam Chair and committee members, for having me.
Teamsters Canada is the largest private-sector union representing workers in the federal jurisdiction — air, rail, road, bus, couriers and more. I will briefly talk about some of the sections you are reviewing, but I will be focusing on Part 3 of the Canada Labour Code.
To start, Teamsters Canada supports and endorses the Canadian Labour Congress’s position that was given here yesterday.
I do want to start with Division 8, Parental Benefits and Related Leave. Of course we support these amendments. We think they are an improvement over the current regime.
One of the issues we raised is the issue of wage replacement, meaning that for a lot of people, though this is a wonderful opportunity because of the pressures that people have in their lives to meet mortgages, et cetera, the wage replacement level isn’t high enough, so it becomes an unattainable opportunity for a lot of people. But we do applaud the government in moving forward with it.
On Part III of the code, for someone who actually took part in the Arthurs Commission, it is a wonderful thing to see it going forward. They were a long-time coming. We congratulate the government in moving forward. It is certainly a step in the right direction.
The most important change for Teamsters Canada is dealing with contract flipping. The new section 189 of the bill will reduce the ability of companies presenting low bids and federal contracts based on reducing workers’ benefits and entitlements under the code rather than bringing their managerial expertise to improve efficiencies.
The proposed changes will not fully address the problem faced by unionized workers at airports, where contract flipping effects bargaining rights, compensation, terms and conditions of employment.
Teamsters Canada was very pleased when Minister Hajdu announced the government will move forward with regulations into Part I of the code to address this problem. Teamsters Canada will participate in all consultations on the regulations, and we do encourage the government to move quickly in bringing them forward.
Misclassification of employees by employers removes workers from the protection of the code. It also creates an uneven playing field for companies. The prohibition and reverse onus employers provided by new section 167.1 — that’s at page 448 of the bill — will enhance existing legislation and jurisprudence. This is an especially important issue in trucking, and Teamsters Canada welcomes the change.
New section 173.01 — page 449 of the bill — provides some scheduling protection for non-union workers. It is not applicable to unionized workers. If it were, it would not be applicable to unionized workers falling under Transport Canada’s power to regulate hours of work in air, rail and road. Fatigue is both a public and health and safety issue for workers. The Transportation Safety Board placed fatigue as the number one issue on its watch list.
Teamsters Canada demands that all workers in federal jurisdiction enjoy the full protection of the Canada Labour Code and the department of Labour fulfills its mandate to protect transportation workers. This is a health and safety issue.
In fatigue, long hours cause disease of the body, diabetes, early death, permanent cognitive damage and social cost to the families. It is a transfer of costs from employers to the Canada Health Act and to individuals. We have called for a study by Health Canada, and Labour Canada to quantify those costs to bring them into the scientific assessment when we’re setting rules in Transport Canada.
Transportation workers work long hours, and a major irritant is when a workday is extended, forcing them to work instead of attending family responsibilities. This is a common practice for couriers. Notwithstanding, the limitations, new section 174.1 — page 491 of the bill — the right to refuse overtime to carry out family responsibility is progressive. It shows the government understands the pressures placed on workers. Further evidence of this is in new section 181.1 — page 452 of the bill — dealing with breaks for medical reasons and nursing.
Moving forward to the wage earner protection. You see it’s a big bill. We have it all spread out here.
We welcome the increase from three to seven weeks. We’re not sure on the eligible wages. We think wages should include all benefits, all wage entitlements, not just wages. The big flaw in this, of course, is that there is nothing to protect pensions. I note Sears Canada just came up. However, one of my most unfortunate files was dealing with teamsters involved in the Nortel fiasco. Wages are not the concern of most workers when this happens, but this is a positive step.
I’m very pleased that, only today, I think the government announced that it is going to start a short consultation through to December to examine that pension issue, the dealing of pensions and insolvency. I could not be happier they are doing it. Teamsters Canada will participate in all aspects of that.
The last item that caught my attention was Division 21, the simple two clauses dealing with poverty. It’s aspirational in nature. Of course we welcome that aspiration, like all Canadians do. However, my attention was drawn to Bill C-87, which, of course, is exactly the least two clauses.
I was sort of scratching my head, and I thought a couple of things. One is perhaps they wanted to get this on record. If we look at the schedule, the election coming in June, perhaps they just don’t have enough time to get to the bill, but they want to make sure it’s on record.
I never thought — just being very tongue in cheek — that perhaps adding the 12 clauses of the bill to this bill would make a long bill, an omnibus bill, and they wouldn’t want that. I’m not sure.
With that, I welcome any questions you have, and hopefully I can answer them. If not, I will get back to you with the answers as quickly as I can.
The Chair: Thank you very much. We do have questions.
Senator Seidman: Thank you for your overview on this. There are four divisions and a lot of very complex material around labour codes specifically.
I want to understand. First of all, you said that you were the largest union of federally employed workers; is that correct?
Mr. Benson: Correct.
Senator Seidman: Could you give me an idea of what that encompasses?
Mr. Benson: We’re the transportation supply chain union, with very few exceptions. For example, if a train moves, it’s a teamster. We’re at ports and at airports. We’re on planes, trucking, couriers, about 65 per cent of couriers in total. Other unions do do federal work. However, I understand from Labour Canada that we’re about 70 per cent of their business. So under the private sector Federal Court, under the public service, they fall under different acts. So from the unionized world, of course, we have armoured car and finance. I think in FETCO, every single branch of FETCO would have teamsters working for them.
Senator Seidman: Okay. So your members are across different provinces?
Mr. Benson: Absolutely, coast to coast to coast.
Senator Seidman: Maybe you can help me understand. These changes are for federally employed workers across the country in the different provinces. What happens in those provinces? Do they have to change their codes as well in order for it to apply or not?
Mr. Benson: First, it’s not federally employed. It’s under federal jurisdiction: Section 81, 86, of the 1967 act.
The answer is this applies only to those workers who fall within federal jurisdiction. We like to think that the federal government traditionally led in these areas, and they have kind of fallen behind. As you know, this was a long-time coming. So if the province wanted to do something similar, they would have to enact similar legislation.
It’s very complicated. We’ll skip it. I’ll get back to you. There are some very complicated variances in transportation for that.
Senator Seidman: So there are complications of the transportation industry of overlaps of jurisdictions. Is that what you’re saying, in terms of your employees?
Mr. Benson: No, trucking would be the biggest example, federal or provincial, but the federal regulates, and the provinces — Canadian council mode of transportation that we sit as a regulated stakeholder. Generally the federal regulates; the province incorporates.
Senator Seidman: What does that mean?
Mr. Benson: It means they adopt the federal regs by incorporation.
Senator Seidman: Just for those working.
Mr. Benson: Yes. Forget about Part III of the code, except for hours of service, which is incorporated. Things like the size of vehicles, what the vehicles look like, who can drive a car, whether you need a medical test, these are all things that are generally federally regulated but incorporated into provincial, but that council is made up of all three — federal, provinces and the territories. So when a rule is made, it’s because everybody agrees to it.
On the hours of service, same thing. For trucking, that was made at committee and then incorporated by the provinces.
Senator Seidman: So I may have missed it, but did you tell us the number of employees that fall into your Teamsters union?
Mr. Benson: We have 125,000 members.
Senator Seidman: 125,000 members. Okay. Thank you.
Mr. Benson: The bulk of which would be under federal regulation.
Senator Seidman: Under federal regulation. Yes, exactly. That’s helpful.
I would like to ask you, we heard witness testimony yesterday from FETCO, in fact. They talked about conflicts arising with current collective agreements. They also talked about the impact of cumulative rules and regulations and the lack of clear definition about whether these would be cumulative, if two collective agreements had five days’ leave, a minimum and maximum kind of thing. There was no clear understanding that was only five days as opposed to five plus five days, just as a rough example.
I’d like to know what you would have to say about conflicts with current collective agreements and whether there are issues with this legislation.
Mr. Benson: It’s a question between a law of general application and collective agreements and also under the rules of Transport Canada.
Generally, Part 3 of the code sets benchmarks for which, in most cases, our collective agreements would be stronger. I do not understand the issue of cumulative. If it’s a rule of general application, it applies. I believe there is a two-year period here for collective agreements.
I’ll give you an example. If the hours of service change, which they plan to do for the air world, they change for the air world notwithstanding what is in your collective agreement. Now, the collective agreement can be better than that standard, but if it’s substandard, it would have to be better. But it’s not cumulative, as far as I understand. I’ve never seen that before, anyway, in my time. It just means that, for example, if you have no provisions on parental leave or nursing for women, this comes in. It’s a rule of general application. It will apply.
If you have something in your agreement that is better than that, then it’ll fall under the collective agreement. If you’re a non-unionized worker or you don’t have a collective agreement that talks about it, this would apply.
There is a question on the bill on this, especially hours of service and transportation versus the Canada Labour Code. It’s two different departments with different authorities and different results.
Senator Seidman: In terms of the Parental Sharing Benefit program, have you thought about whether the federal government should attempt to measure the success of that program? “Success” in quotation marks, of course. There are other programs, for example, in the United Kingdom. They attempted this in 2015, and there was a very slow uptake. What are your thoughts on this?
Mr. Benson: I think they do. Shame on me for not spending a lot of time on this, but when I talk to individuals and members, the biggest problem is, bluntly, it’s an unattainable opportunity. Though it’s there, you have a mortgage to pay and cars to pay. It doesn’t matter whether it’s a man or a woman. I have had both situations where the major wage earner has to earn a living.
So I think Mr. Roberts talked about it yesterday and shared his concern. It has to do with wage replacement. If you think about it, I think it’s $545 a week maximum or something. If you are in that slot that you’re living on $545, you can take the time. If you’re wealthy, upper middle class, you can afford to take it because you have money. If you’re poorer, you have to make your rent.
I think when you say the study — not so much in the uptake — I think it would be great to see the reasons why there isn’t an uptake. If they don’t have one, I would suggest more of that approach.
Senator Seidman: Okay. Thank you.
[Translation]
Senator Mégie: Part of my question concerning maternity leave was already asked by Senator Seidman. I would now like to know what percentage of women work in interprovincial transportation.
[English]
Mr. Benson: That number I do not have, but I will admit it’s dismally low.
[Translation]
Senator Mégie: But roughly?
[English]
Mr. Benson: I will try to get you a number. It’s something we’re trying to address. In all of the male-dominated fields, it’s our desire to have more women working in the field. One of the leaders of the Independent Truckers’ Association is a woman. We have women truckers and women couriers. We have lots of women members. Long distance, it’s a little different.
[Translation]
Senator Mégie: I was trying to see how maternity leave affected the budget of these carriers. I see that you were very positive about the new proposals in the new budget, so that’s good. Thank you.
[English]
Senator Dasko: I’m sorry to go back to this topic again, but just to clarify your answer to Senator Seidman, I want to make sure I understand it because I’m not quite sure I do. This has come up a couple of times before, so I just want to make sure I understand what you’re saying.
In the case where let’s say in a collective agreement the worker gets four days off for domestic violence and the federal code says five days are possible, obviously we understand that it’s not cumulative. The worker doesn’t get nine days, so I think that’s clear.
What I’m not clear on is, is the better standard always accepted or is it the standard of the agreement or the code? Does one of those prevail?
Mr. Benson: That’s a good question.
Senator Dasko: The better standard in this hypothetical example would be the government provision that says five days would be better than four days in the collective agreement. You’re saying you’re not sure which one of those —
Mr. Benson: It’s a simple answer and it’s a good question. You cannot contract out of a law of general application.
Senator Dasko: Which is the code.
Mr. Benson: The law. So it’s five days. I think there is a two-year period or something built in. I’ll give you an example.
Just to go back, it would be like saying “we must have pay equity” or “we must have gender hiring,” and we have a collective agreement that says, “we don’t want pay equity and we don’t want gender hiring.” You can’t contract out a provision of general application. That applies anywhere, anytime and on anything, as far as I understand the law.
Senator Dasko: Right. So if you took the reverse example, then, and if the collective agreement were more generous than the code, then the collective agreement would apply?
Mr. Benson: The collective agreement applies.
Senator Dasko: What you’re saying is actually the better standard applies in every case?
Mr. Benson: Yes. Part of a role as a union is to fight for people who aren’t unionized and for all workers, to raise the bar for everybody. So to be serious, when people come, most of the conditions here will be better than they were but may not be at a level of collective agreements.
Senator Dasko: Yes. Some may be better, some may not be as good.
Mr. Benson: Not too often, so it becomes an issue of raising the bar for everybody. As a union we say, “What we have for one we want for all.” Why do we fight for pharmacare or health care? We all have benefit plans. Why would we fight for it?
So it’s raising the bar for everybody. We talked about women in trucking. We took a case to the Supreme Court for one woman member on compensation on leave for pregnancy. That’s an expensive thing to do, but it was worth doing because it’s a Teamster, a member, she was unjustly treated. We didn’t win but we sure as hell gave it a shot. That’s why we’re happy in this provision talking about pregnancy leave, though it doesn’t deal exactly with the issue we did. It’s something we do.
Senator Dasko: Thank you, that clarifies it for me. The better standard rules is what you concluded as far as I can see.
Mr. Benson: You can’t get out of the law.
You set the law and you think everyone would obviously follow it.
Senator Munson: I’m almost questioned out here on Thursday afternoon, so many sections.
Mr. Benson: It’s terrible.
Senator Munson: It’s complicated, but it’s interesting because it’s about people’s lives. You’re generally in favour of everything that you see. Is there something missing?
Mr. Benson: Yes, absolutely. What’s missing, and it’s when I talked about fatigue, I’ve been dealing with it most of my career, and it’s not been dealt with, especially in rail. The biggest problem is back when dinosaurs ruled the earth, Labour Canada subrogated its authority over setting hours of work and service to Transport Canada to deal with transportation workers. And Transport Canada’s mandate is an efficient transportation system, public safety and to make sure companies make money.
We know that the long hours workers are working are killing them, causing social problems and costs to health care. Transport Canada cannot look at them because it’s not in their mandate. Labour Canada cannot look at them because it’s in Transport Canada’s mandate. We called repeatedly for Labour Canada to come back in the game. We’d like to see a study to quantify the cost of health care because they quantify costs to a company of making regulation hours of service better. What they do not factor in is how much it costs health care not to factor in more. That’s one thing that should have been dealt with at some point — hopefully it will be dealt with sooner or later — but it’s a tragedy to send people out. I say change the word “fatigue” to “asbestos” and ask yourself if you would not do a study on it.
Senator Munson: That would be one of your recommendations to us in terms of our report.
Mr. Benson: Unfortunately, it’s partly Part III, partly Part I, partly Transport Canada and it’s higher than this food chain.
If you want to put a recommendation in I’d welcome it, but I think it’s beyond the scope of the bill, but I wish it was here.
I take every opportunity to raise it because it’s sad when TSB says it’s the number one issue, but when you get to Transport Canada, we don’t look at whether it affects health and safety, what it does to people. It’s the minimum threshold to guarantee the safety of the public and to make sure they make money, not to say whether or not the worker is going to live a shorter life, get diabetes or suffer cognitive damage. Those things are not examined, never mind the social costs, being away from home, divorces, all the other things that go with it. Part of the reason we like the 96 hours and scheduling issues is they don’t apply to us but should, or at least in part. Thank you. Good question.
Senator Munson: I appreciate the answer. Just another observation is that over the last few days we see the independent business people — they won’t say it, but I think they feel the government is intruding on all the best practices that take place within the private sector and small business. Yet from the workers’ perspective you welcome it. I do not feel the same welcoming from the other part of it all. What’s that about?
Mr. Benson: I would say that most of the federal jurisdiction is dominated by huge companies that you know, many of whom our members work for. So other than small trucking companies, who already fall under a lot of the rules that are set, but a mom-and-pop store in Orleans, guaranteed, it doesn’t apply to them.
So I do sympathize when people say that I may have a problem. There is certain level of fairness and justice that we feel for people. We all feel for people, not just the union side, but government, et cetera. It is to say that, well, I’m going to have a right to exempt or excuse bad behaviour or good behaviour or different behaviour. I think how I’m treating my workers is perfectly okay, and we love that when we’re organizing when a company says: We know what’s best for workers.
I think when you’re looking at federal jurisdiction, it’s setting the bar for banks, for rail, air, the WestJets, the Air Canadas, the CNCP that we work for, and a lot of the trucking companies and private contractors you see going down the road are all Teamsters, so it may be a bit ingenuous, but I don’t think there are a lot of employees in small business that are at that level. There may be, but I don’t know who they are.
The Chair: We do have time for more questions, a second round.
Maybe just a quick one from me: You did mention the 96 hours that people need to get a schedule 96 hours in advance, and I wanted you to maybe talk more about the impact of that. I assume it is positive when it comes to transport.
Mr. Benson: For transport, I’m not sure it would apply because of the differential between Labour Canada and Transport Canada. Most of the transportation has turnaround rules. I’m not sure if they are all 96 hours. I think trucking is smaller. They have different schedules based upon collective agreements and law, mostly law.
The biggest thing when I talked about fatigue and Transport Canada is that when you’re playing with people’s circadian rhythms and you want to change shifts, it takes time. Every change of shift takes time, so every time there is an hour change it takes one day. So how you arrange those schedules are very important. From a health issue — a public safety issue — you don’t want people driving buses on the road who are tired or truckers or airline pilots or locomotive engineers, though they are tired because of the rules. Trust me; they’re exhausted. The 96 hours gives people time not only to adjust their schedule but if it’s an unexpected change, if I’m a single dad I have to arrange daycare, I may have had a bunch of doctors’ appointments for that week and I can’t do them hence the family leave provisions might come in handy.
The other issue is the unexpected overtime: “I told you I had a family responsibility. I can’t work overtime. Well, you have to.” Well, maybe now they don’t have to. I’m not sure it will pan out, but it’s not unreasonable.
Senator Seidman: If I could go back to the comments you were making about the Wage Earner Protection Program, you did mention the fact that, unfortunately, it doesn’t address pension liabilities. You did say that this is now going to be the subject of discussion.
Mr. Benson: Just today.
Senator Seidman: Just today.
Mr. Benson: Announced today.
Senator Seidman: Is that right? Are there any federal programs right now that address pension losses?
Mr. Benson: I think I did five rounds of committees when Nortel was going under. The problem in Canada versus other regimes is other regimes have different ways of assuring that a pension plan will be funded. For Sears in America, they were forced to sell Craftsman and put the money from that into the pension plan.
Here, of course, they gave shareholders the dividend.
In other places, which we’d like to see, it is having workers in priority. In other words, the pension plan isn’t a priority to other creditors. They get the money first.
The biggest problem is to have proper rules to ensure the money is going into the plan. We often hear, “Well, would you rather have a job or a pension?” I think that’s a silly thing to say. Pensions are foregone wages. As far as we’re concerned our position was it’s wage theft. If you’re going to protect wages, you have to protect pensions because pensions are not a gift from the employer. I’m not sure if you get pensions as senators — you may or may not, I’m not sure — but it’s your money and your wages. It’s your wages and wages should be protected fully. In Canada, unfortunately in every round the creditors show up and say it will be the end of the world. However, in other countries they do it and it’s not the end of the world. It’s a major flaw and it happens regularly. It’s just when it’s a Sears or a Nortel that it becomes, for a period of time, front-page news.
We commend the government. I think it’s a short study wrapping up in December at some point. Hopefully, it will get things going — at least the conversation. It will do nothing for people who have lost their pensions. Some of the people I was dealing with at the time were getting 25 cents on the dollar. That hurts.
Senator Seidman: I presume you participated in the consultation or submitted a brief.
Mr. Benson: It just started today.
Senator Seidman: No, not on this particular thing but on the legislation currently in front of us.
Mr. Benson: No, and the simple reason is that it came in on October 29. We were asked to appear a week and a half later — you’re talking about Bill C-86.
Senator Seidman: I mean in the lead up to Bill C-86. There was a consultation period, apparently, before the bill was crafted.
Mr. Benson: You can take the Canadian Labour Congress submissions. As labour, we work together and have a common position. The few that we raised with you serve unique Teamster Canada positions that don’t have to be in their document. That’s why I said we endorsed their document, simply because of that. Often on pay equity we have a common position because we worked on it for 10 years together — or seven, or five years, whatever the period is.
Senator Seidman: Do you see challenges in this legislation? Basically, you feel it’s a positive.
Mr. Benson: It’s positive. Could it be better? Sure, everything could be better. For example, the case I talked about was a preventative withdrawal of a Teamster. The issue wasn’t the preventative withdrawal but had to do with the wage replacement. We were arguing for a better wage replacement and we were denied appeal. We were trying our best to get them compensation for that preventative leave. If you have someone who is on preventative leave, trying to live on $455 a week when earning $1,000 to $1,500 a week, it’s a hard go. Even on preventative leave and all of these issues, we don’t look at the real cost of replacement wages to ensure that this person can actually live.
For a single mom or two people in big homes, it costs a lot of money.
[Translation]
Senator Mégie: You mentioned earlier that there’s very little concern for the health of employees in the transportation industry. What could be added to better monitor their health?
[English]
Mr. Benson: That’s a great question. Unfortunately, this is the catch 22 we’re in; namely, that nothing in the Canada Labour Code will affect the Transport Canada rule setting in this regard. It just doesn’t apply.
Labour Canada, mandated to look at the health and safety of workers, probably would not allow it. Transport Canada does not have to look at it.
You understand the catch 22 — this is above this. Until some government says, “We’ve had enough of this. The silos have to come down. We want to do the studies. We want to make sure it’s safe,” it cannot happen under the regime we have. It doesn’t apply. You can change the Canada Labour Code any way you want. It won’t matter unless the silo comes down.
[Translation]
Senator Mégie: Do you think that it would be realistic to require an annual check up for employees through private insurance?
[English]
Mr. Benson: Under the law, if you are a transport driver for a certain period of time, you must do an annual check up. We have wonderful benefit plans that pay for drugs and bury people. But that doesn’t solve the problem. When you go to the doctor and the doctor says you have diabetes, or cognitive problems, or you are obese and that’s causing heart problems and heart attacks — we know the linkage to fatigue. That’s not looked at. The only thing they ask is, is this person fit to operate the machinery and is it safe for the public? If the answer is yes, away you go.
Great question.
The Chair: I’m going to throw an idealistic question out to you. How do you see the impact of measures like that? You inspired me to ask this question because you said something about if it’s good for one it’s good for all. In your perspective and experience — you’ve been there a long time — even if these measures don’t apply to all sectors and to everyone, does that create some sort of standard or inspire change in culture? Does it have that kind of side effect in your opinion? I know it’s hard to quantify.
Mr. Benson: Generally, if you look at the overarching scope of this. Clearly, it has both an aspirational and a practical effect. It’s also important, I think, for the federal government to lead in the sense that I think they have an opportunity and an obligation to set good standards, whether it’s here, or in pay equity, or in health and safety and to set positive examples, not the lowest bar but a good bar for other people and other provinces for people like us to fight for in other provinces to please bring in. It is important that the bar is raised. It can have an effect. Most importantly, all of these changes may not have an overarching effect on a huge number of people, but if you’re one of the persons or the group of people to whom it has an impact, it will be very important whether it’s parental leave sharing, a 96-hour turnout, the right to say no to overtime. If you have that power and that right to do it and can exercise it, then it will make an important change in your life. That’s what we want, I think. We all want that.
The Chair: Thank you very much.
Senator Omidvar: I apologize to our witness for being late. I’ve had a truncated day today, back and forth.
I’ve done a quick scan of your brief but let me ask you a general question. This is the first time the Labour Code has been updated in decades. Do you think the changes proposed in this bill bring us more in line with the reality of the workforce today, which we know is more contracts, more part time and more precarious work? It has a gender lens to it. Can you look at the changes through the lens of gender for us?
Mr. Benson: That is an absolutely fantastic question. It’s a hefty piece here, section 8. The fact they’re dealing with it, talking about it and have sections in it is an understanding that the working world is changing.
For dinosaurs like me, it’s not the case, but for the younger generation, such as my daughter and her friends, it’s a totally different world. We have to still respect the traditional model of work — traditional workplace work — but I’d go further than what you’re saying. It’s important to protect the precarious worker — the shift worker, the gig worker, the Uber drivers of the world — also gender, LGBTQ2, First Nations and refugees — and to look at it all in ways not only to avoid abuse but also so that people can understand their rights and also have a way of enforcing them.
Often it’s not just an issue of, “Hey, boss, you owe me four hours.” It’s wondering if I get fired. What’s not addressed is zero-hour contracts. It’s a huge thing, the gig world and the part-time world. When I was younger, I could put together three part-time jobs to get my 48 hours a week because I was poor. Now, a company will say, “I want you part-time on Monday, Tuesday and Wednesday, and if I call you anytime, you have to show up, but I don’t have to work you Monday, Tuesday or Wednesday. And if I call you and you don’t come in, I’ll fire you.”
You end up with labour hoarding. Workers end up on paper with 48 hours a week, but on any given week, they might actually work 16 or lose a job because they have to choose between which job they take.
That’s the ultimate precarious work, but it’s becoming the standard now. This is not unusual at all.
If you’re an independent in trucking or an independent contractor, in theory, you get to work anywhere you want. If you’re independent, you can take any contract. That’s the misclassification section and why it’s so important. That’s why they say somebody is an independent contractor, but they’re actually an employee. By doing that, not only do we tie you up because you can’t work anywhere else because we’ll fire you, but at the same time, you can’t use the code.
The decision from Teamsters, we won in court. Under the Labour Code, we can sign them up as union members, but that misclassification will have an impact.
There are lots of pieces of this legislation that, when you put them together, start to address some of these issues.
Senator Omidvar: On the witness panel previous to this one, we heard from the Canadian Federation of Independent Businesses about the need for flexibility. There was a discussion about flexibility versus standardization. They talked about the fact that this bill, on a cumulative level, with all the changes, would be a job killer as opposed to creating the kind of workforce and labour market that we need. Do you have a comment on that?
Mr. Benson: Most of the CFIB would not be in the federal jurisdiction, so I’m sure they’re worried about provincial.
Where these laws have come into effect both in the United States and Canada, you have incredible job growth and wage increases. It comes down to what I said earlier when you weren’t here. It’s the same story: “I’ve always been prejudiced against women. I need that flexibility to remain that way. Therefore you’re changing the law so I can’t do it, and it’s bad for my business.” Another one might be: “I always give my employees zero-hour contracts, so I make money but they can’t make a living, and I want to continue to do it because I need flexibility.”
Flexibility is a wonderful thing when it’s fairly rendered, but from our experience, it simply isn’t. You need standards to protect people.
For business, when they say, “I can’t be in business unless I have this,” then I suggest perhaps your capital would be best spent elsewhere. That’s the economist in me. Sometimes when you set standards — take minimum wage. Everyone goes “it’s to protect workers.” A minimum wage also sets marginal productivity of capital. We’re a capitalistic country, basically. It says that if you can’t get that marginal productivity of labour at $14 or $15 an hour, you’re wasting capital.
Sometimes for efficiency, you have to move forward. I’m sorry if people might suffer if we do, but you have to look at this as protecting workers; people who are vulnerable; and people who have no power, no bargaining power and no opportunity to say, “I’ll go do something else.” It’s hard to get a job; even though there is low unemployment, people have a hard time getting jobs.
Sometimes you have to buck up and say, “They’re the standards. Live with them. Move on.” The studies show that when these are in effect, if you look at Ontario with similar legislation, they had a huge amount of job growth. When people are in lower-end precarious work receive their paycheques, they spend it, unlike rich people. It’s good for business in the long run. It’s an opportunity to generate more business for themselves.
You can tell I have sympathy but not that much.
The Chair: On that note, thank you very much, Mr. Benson, for the time you took to help us. It’s really appreciated.
[Translation]
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.
[English]
I would like now to introduce our next witness. Joining us by video conference, we have Nora Spinks, Chief Executive Officer, Vanier Institute of the Family. Welcome. You have seven minutes for your opening remarks and we will be following with questions from the senators. Please proceed.
Nora Spinks, Chief Executive Officer, Vanier Institute of the Family: Thank you so much. It’s a pleasure to be with you. I’m sorry I’m not there in person.
Some of you already know me and certainly know the Vanier Institute, but for those of you who don’t, the Vanier Institute is a research organization based in Ottawa that was established by the then Governor General Georges Vanier, in 1965. He set us up as a standing royal commission that should never be discharged. It’s our job to understand families and all of their complexity and all of their diversity, including as it relates to matters of employment and family finances. So it’s through that lens that I will be speaking with you today.
My name is Nora Spinks, as the chair mentioned, and I am currently the CEO of the Vanier Institute. Previous to the Vanier Institute I worked on matters related to Labour Code and employment standards and in particular some of the issues that we’re dealing with here today.
To put some context on this, our families today are more diverse than ever before. Their lives are complex. Their relationships are sometimes messy. More adults who are in families, particularly those with care-giving responsibilities, are now in a paid-labour force while they are providing that care. Many of them are working in non-standard or precarious work relationships. There are a number of different ways we can talk about it, but the way in which we want to look at it from a leave perspective is that really it’s about care for self or care for others. When we look at it, it’s about any leaves or leaves from work for care of self or care for others is really about maintaining attachment to the labour force and not being disadvantaged as a result of having care responsibilities.
Income security for individuals and their families, to provide stability and predictability for family finances, family income, to be able to engage in activities, to budget, to plan, to manage cash flow is becoming particularly challenging for those who are working in non-standard or precarious workplaces.
When we look at work/family initiatives, both within the private sector and the broader public sector, when we talk about work and family we used to have pretty much a standard workweek and a standard work attachment. It was full-time permanent or part-time permanent, well-defined, well within Monday to Friday, maybe occasionally some overtime, but not the kind of hours and 24/7 work environments that we’re finding ourselves increasingly engaged in.
In the workplace we had standards that were set by Labour Code and other employment legislation that helped to define that standard. Then in the last round of changes to the Labour Code, we saw an increase in language around flexibility and alternative work arrangements and alternative career paths. So we went from standard to sort of flexible and alternative. Now what we’re seeing is more customization. We are seeing that not only in terms of the attachment to the labour force, but writ large in our societies, in our communities. There is more personalization and customization. There are more customized work arrangements, customized career paths, even customized education paths.
When we look at the provisions that we’re talking about here today, we really are talking about families and employees and ultimately their employers and their colleagues to define the new workplace, and our new attachment to the labour force, in a way that is much more representative of what is going on in people’s lives. There is more adaptability, more autonomy, more agency. Sometimes what that results in is actually the opposite: less choice, less autonomy, less agency, when employers define, as you’ve been talking about in your previous session.
Now, specifically related to Division 15 and looking at paid days for victims of violence, this is a really important element. It’s a good thing that it’s a small group of people, but the support that it offers that small group is large. It provides an opportunity for people who are victims of violence an opportunity to seek safety. When they have the courage to leave an unsafe situation, they know that they don’t also have to necessarily jeopardize their attachment to the labour force.
When we talk about personal leaves and leaves for things like court and jury leave, this is a really important element because increasingly people are going to court for family matters, as witnesses to incidents or crimes, to support somebody who might be going through the court system, or they might actually be on jury leave.
When we look at vacations from a family perspective, vacations are important for family unity and for family time. They are also an opportunity for many families to offset the cost of child care. If families are on vacation, they can in some cases avoid paying for child care for that period of time.
We know that most families actually end up leaving vacation days on the table because families also use vacation days as their family care insurance policy where if they need to be available for elder care or child care or sick day care or days that care is not available, oftentimes they will use their vacation days in that manner which, unfortunately, takes away from the health and well-being they get from using a vacation day as it was originally intended.
When we look at accessibility and availability of these services from a length-of-service perspective, those that are working precarious, casual or part-time are unavailable to access these benefits.
When we look at this particular division and at some of the flexibility around that, it’s important to keep in context what families are experiencing and what communities and employers are adapting to. We have some really good role models where employers are managing quite well introducing these leaves and supports for their employees without negative consequences. The challenge for the Labour Code is to ensure that the rest of the employees who might not be so privileged have access to the same supports.
I would be delighted to answer whatever questions you have and offer any further examples if that is what you’re looking for.
The Chair: Thank you very much.
Senator Seidman: Thank you very much for your presentation this afternoon. We appreciate it a lot. What I wanted to ask you about is the parental sharing benefit program. Given you are representing the Vanier Institute of the Family, I would like to know what you could tell us about your thoughts on the rationale of creating this new program.
Ms. Spinks: There are a couple of things about maternity benefits or parental benefits typically used by women. It is historically a gendered benefit and more women take it than men. So if there are any disadvantages, like a break in your labour history or a break in your career path, women are the ones who bear the brunt of that. This is a worldwide phenomenon; it’s not only Canada.
Two things are happening simultaneously that are significantly impacting men’s interest and involvement in sharing that parental benefit. First, historically, the postpartum care after the birth of a newborn was historically provided by a grandmother, either the maternal or paternal grandmother. Those grandmothers today are baby boomers who are largely in the paid labour force when they become grandparents and aren’t necessarily available to provide that support, nor are they necessarily available to provide the backup childcare or to provide support during those important first two years of life.
The second piece that is critically important here is the fathers, and fathers are much more actively engaged in prebirth. They go to more prenatal visits. They go to more parenting classes before the baby is born. They are active in the labour and delivery. Many of them now are stepping in to provide the postpartum care where grandmothers aren’t available.
It gives an opportunity to recognize and acknowledge that this is a reality for most families, but it also provides the necessary support for dads to be able to take full advantage of these benefits. By providing the sharing and stretching that timing, it allows families greater flexibility. It allows the dads to split their time so they can be there for postpartum. They can also be there at the end. The provisions that are being suggested in this set of edits or amendments is in recognition of that reality.
We used to hear fathers talk about my wife is expecting, and then we started to hear about we are expecting. Now we’re hearing from young men about we delivered, and they are actively engaged in parenting. Whether they are married or living together or living apart, dads are very actively involved. This gives them an opportunity to do that. In doing so it reduces the pressure on women to bear the whole brunt of any negative consequences that may result in terms of loss of income or loss of pension earnings in the future.
Senator Seidman: I really appreciate that history you present to us. We all, to some extent, understand the stereotypical history behind these programs and appreciate the changes that are out there.
My question to you would be are these changes the right ones? Do you think they will be successful? There are cultural issues at play, of course, and financial considerations for families, and so is this the right approach? Is this going to achieve what we’re trying to achieve?
Ms. Spinks: Well, there are a couple of things. When we look at it from the family perspective, whenever there is a leave, it’s really about a combination of time and money, and you want time with a loved one to provide elder care or child care, and you want financial resources in order to do that without negative consequences. With this particular plan, there is more time, but there is not more money. What families are saying is the time is great; now we need to factor in the money.
Now for some the reduction in external child care costs for early learning and child care programs offsets that income loss. What families are looking for, and they are articulating strongly, is the replacement rate. As we look at time and flexibility over the first two to three years of life, what some countries are doing is saying that here is your pot of money, and you can use it over the first three years in whatever way you want — to offset earnings, to take a leave — so other countries are looking at this in a number of different ways.
It’s really about the trade-off. Some of that trade-off occurs by choice. You want to be home, you want to be in the labour force, you’re the primary income earner, your partner is the secondary or equal earner. It may be circumstances that you have no choice. You have a child with a special need or you have twins, and you need that extra time to be there. Or it might be cultural that this is your expectation that this is your duty and role. So the combination of either single or some combination of choice, culture and circumstance always plays into this.
It’s the time and money trade-off. For some it’s the short-term time. I want intensity now because I’m only going to have one child. For others it’s I’m going to have a second or this is my second, and I want to stretch out this time a little more in order for my family to have the support that it needs.
The challenge is that there are so many families that don’t have access to the leaves or benefits. If they don’t have access to the benefits, then where is the balance in leaves? It’s always sort of aligning the leave provisions in the employment legislation with the financial benefits from the EI program, but also the employer policies and practices. It’s a combination of these three that are critically important when you’re looking at leaves for any of these care for self or care for other leaves.
Senator Seidman: Thank you very much.
The Chair: You did talk about the parent leave, but I read a little more flexibility in terms of how long you have to work to get some leave.
Then I see something that has to do with allowed pauses or unpaid pauses for nursing or medical reasons. Will those measures have a positive impact on gender equity in the workforce as a general statement?
Ms. Spinks: I think what we’re seeing is that in places where there are resources and leaves and benefits available to men, the gender gap does shrink, and so the benefits are equalized across genders, so yes, it does have an impact on that.
I think in terms of eligibility and access to these kinds of programs and leaves and supports that are associated with that, it’s really about the part of the population and part of the labour force that doesn’t yet have access to those benefits or those leaves. By shrinking the eligibility time and by making it more accessible more quickly, it reduces stress on families.
When we talk about the stress on families, it’s not just the immediate that they are dealing with, but they are always worried about the future and they are always worried about tomorrow. What we hear often from families is that it’s not just taking advantage of the benefit or accessing the leave, but knowing it’s there if they need it. That is, in and of itself, a relief.
When we’re thinking about this, it’s not just who is going to take it but who is going to want to know that it’s there to take if they need it, if that makes any sense to you.
The Chair: It does. One last point before we let you go.
You did talk about international. I know that your institute does a lot of research or gets a lot of research and goes through it. Considering the measures that are proposed, where would that place us in terms of helping families in the world? Does that make us leaders or who should we look at?
Ms. Spinks: It certainly raises us up. We’re already in the top cadre of countries when it comes to these kinds of programs and recognition of the significance of investing public money for public good through investing in families. We’re certainly far in advance of the United States. It brings us up to some of the countries in the EU. It brings us above Australia and New Zealand, but there are still some advancements that could be made in terms of next steps.
Part of that is increasing flexibility and accessing leaves. Some of the grandparents that we are hearing from are saying it would be great if we could take part of the parental benefits, not just mom and dad, but maybe mom, dad and grandma and grandpa: more flexibility, not less.
Income is always an issue for families, particularly in low-income households. Fifty-five per cent of earnings is really low, so they are asking about replacement rates but that’s an EI question, not a Labour Code question.
Within the Labour Code parameters, then yes, I think many families will see these benefits that haven’t otherwise: those that are part of this precariate, this new part of the labour force that doesn’t yet have access to these supports and are the ones who are most vulnerable and at risk for exploitation and being misused by employers and have the quietest voice when it comes to either standing up for themselves or for each other.
This takes us down the right path. Is there still some runway out there that we can use? Absolutely.
The Chair: Thank you.
Senator Munson: Thank you very much for your testimony today. How many Canadian families would this affect? You said many families. What would it do in terms of the economic benefit to the families and to the country?
Ms. Spinks: Well, I have those numbers and I would be more than happy to provide those to the committee. I don’t have them in front of me, but we have done that math so I would be happy to provide those to you.
The Chair: That would be appreciated.
Ms. Spinks: When we talk about families that are going to benefit from this kind of support, it really does include those across the economic spectrum in a couple of different ways. For some, it’s a direct benefit in terms of leave and job protection. For others, it provides a framework for conversation with their employer, so once we have these in place, especially within the Canada Labour Code, we know that they are going to trickle down to provincial employment standards. It raises the bar.
We saw this when the federal government first introduced leaves related to compassionate care, and as a result of the benefits and the leaves, then the other provincial statutes and collective agreements started using similar language and providing similar protections.
Where I think the biggest risk is for those who are on the fringes of the labour force, those who are not being counted and who are part of the black market labour pool and are being exploited and not getting the benefits as they are intended. But that, again, is another issue that needs to be addressed. It’s not going to be done through this mechanism of the Canada Labour Code, but it does provide us with an opportunity to open up the conversation and dialogue about working conditions and labour market participation by all Canadians.
Senator Munson: So this, for you, then, this would be a human rights issue and a question of dignity or respect?
Ms. Spinks: I think all employment is about dignity, it’s about respect and it’s about honour. It is about the ability to care for self and others, and most people generate their household income through employment or participation in the labour market. It is a bigger part of the question around humanity and treating people with respect and dignity, and to ensure that those who are at the greatest risk of exploitation have the protections that things like the Labour Code and employment standards legislation provide for them.
The Chair: Thank you very much, Ms. Spinks, for your time, and the perspective that you brought to our study of those divisions of this bill.
(The committee adjourned.)