Honourable senators, the Senate is resolved into a Committee of the Whole on the subject matter of C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal.
Honourable senators, in a Committee of the Whole senators shall address the chair but need not stand. Under the Rules the speaking time is ten minutes, including questions and answers, but, as ordered, if a senator does not use all of his or her time, the balance can be yielded to another senator.
The committee will hear from representatives of the union, followed by a representative of the employer, and then the Minister of Labour and the Minister of Transport.
I would now ask the first witnesses to join us.
(Pursuant to the Order of the Senate, representatives of the Syndicat des débardeurs du port de Montréal SCFP, CUPE Local 375 joined the sitting by video conference.)
Honourable senators, our first witnesses are from the Syndicat des débardeurs du port de Montréal SCFP, CUPE Local 375. I would invite you to introduce yourselves and to make your introductory remarks of at most five minutes.
Michel Murray, Union Representative, Syndicat des débardeurs du port de Montréal — Canadian Union of Public Employees (CUPE 375)
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My name is Michel Murray, and I am the spokesperson for the Montreal Longshore Workers’ Union. I represent 1,150 men and women who are longshore workers at the Port of Montreal. I am accompanied by the union’s legal counsel, Yves Morin.
I thank senators for inviting us to speak. We are here to provide our comments on the special legislation introduced by the government.
First, ever since the Supreme Court ruling in Saskatchewan in 2015, there is no court that doubts that removing the right to strike constitutes a substantial infringement on the right guaranteed under section 2(d) of the Canadian Charter of Rights and Freedoms. Even the International Labour Organization, the ILO, several of whose international conventions Canada has signed, recognized that. To violate a Charter right, there would need to be a matter of some urgency, and such urgency must necessarily be evaluated using objective criteria.
The Canadian Industrial Relations Board has already ruled on the objective criteria. It received an application from the employer regarding essential services and rendered a decision on June 8, 2020. Over the course of the hearings, the employer called 22 witnesses and filed 127 exhibits, and there were 27 days of hearings on the nature of the employer’s essential services application. On June 8, 2020, the board ruled that:
. . . the Board is of the view that the evidence is insufficient for it to allow the employer’s application for the maintenance of all longshoring services in the event of a strike at the Port of Montréal. In light of the evidence presented, the Board is not satisfied that it would be necessary to maintain all longshoring activities, as requested by the employer, to prevent an immediate and serious danger to the health and safety of the public.
I will come back to the health and safety aspect a little later.
With regard to the much-talked-about economic aspect, I would like to remind senators that the longshoremen’s union was part of the 1996 review of the Canada Labour Code better known as “Seeking a Balance” or the Sims report. That review was conducted under a Liberal government, and the Minister of Labour was Alfonso Gagliano, who did a wonderful job for the longshoremen’s union at the time. Mr. Sims said:
Neither statute recognizes economic impact as a criterion for the designation of essential services. While economic impact remains significant, economic interests can be protected in other ways.
It appears, therefore, that this bill seeks to make the economic aspect an essential criterion. To date, no court has recognized that criterion. In fact, the Supreme Court itself stated in Saskatchewan that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations, as supported by jurisprudence and by Canada’s international obligations. According to the judgment in Saskatchewan, the time has come to give the right to strike constitutional benediction.
A more recent Supreme Court decision, Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, stated the following:
However, a measure whose sole purpose is financial, and which infringes Charter rights, can never be justified under s. 1.
I am here to tell you that the government is trying to take away our constitutional right. We like to believe that senators are the guardians of the Charter and the values within it. That cannot be tossed aside for financial interests. The ILO and the Supreme Court have protected that right in these decisions.
I would like to address the issue of medical equipment that has been raised in the various House of Commons hearings. As everyone knows, we are in the midst of a pandemic. Although under no obligation to do so, the union offered to the employer, both last year and again over the past seven days, to unload any containers that contained medical supplies related to the pandemic. We did so without any request for recognition, and we are under no obligation to so, but on humanitarian grounds, and we understand —
Good afternoon, Mr. Murray. My question has to do with the decisions you are referencing. There have been a number of interventions, including decisions from the Industrial Relations Board and one on a recent complaint where good faith bargaining was discussed and the parties appeared to be in conflict on this issue. The Industrial Relations Board dismissed the bad faith bargaining complaint, but did criticize the union harshly. I’ll read the passage for you:
Is the union making every reasonable effort?
The board has difficulty with the fact that the union launched a strike in August 2020 before it had even provided the employer with the necessary details of its demands and without having submitted its monetary and wage demands. This could be construed as completely irresponsible and inconsistent with a reasonable negotiation process.
Your collective agreement, which expired in 2018, was the subject of notices to bargain and several votes in general meetings so that you could use pressure tactics, including strike action. How is it that, in 2021, we have a decision by the Canada Industrial Relations Board, the CIRB, indicating that you haven’t started negotiating and there is no offer on the table?
The CIRB hearings were held in August 2019. The union acknowledged the decision. The employer had not submitted its financial offer, as had previously been agreed by both parties. We were facing major challenges in August. Things had broken down. We used our right to strike to try to have some influence at the bargaining table. We exercised our right and both the union and the employer submitted their financial demands thereafter.
With respect to the goods, you offered to find containers of medical supplies, among other things. With respect to decisions concerning the essential services you mentioned earlier, paragraph 22 states:
In 2018, for the fifth year in a row, the Port of Montréal experienced significant growth; 39 million tons of goods passed through it. The goods that pass through the Port of Montréal include perishable goods and dangerous goods, pharmaceutical products, fire protection and public safety equipment, medicinal plants, pesticides, chemicals, foodstuffs, fertilizers, ores and explosives, to name just a few.
Am I to understand that all these goods can actually be stored on ships that are docked or passing through, but waiting somewhere on the waterway with all the risks that can entail?
During a strike or lockout at the Port of Montreal, and there have been 21 days of lockout in the past 25 years, the ships leave the Port of Montreal and head towards other ports. The trains are cleared out from Port of Montreal land.
As for all of the things you mentioned, aside from the medical supplies, about which I already said that the union had made a special offer to the employer — in fact, since the strike began, no one has asked us to remove any containers. I assume that there aren’t any in the port at this time.
The CIRB considered the request. These are not considered essential services.
Could you tell us how many hours of meetings and negotiations you’ve had so far with the employer’s representatives? Do you have a calendar or any kind of record to give us an idea of how many meetings were held, both for negotiation and mediation, for it to be declared a failure?
There were over 100 days of negotiation, and the parties were waiting for the CIRB’s decision for about 40 of them. Those hearings lasted a year and a half. We only got the decision last year, in June 2020. We had about 40 negotiation meetings, and I think parties on both sides were well aware that there was a wait-and-see attitude with regard to the negotiations and the upcoming decisions. This was my fourth negotiation with the Port of Montreal. It is common practice for negotiations to take two or two and a half years. Unfortunately, the management structure is the reason why it takes so much time to come to an agreement.
It is nothing new for Port of Montreal negotiations to take so much time or for there to be so many meetings, senator.
I would like to talk about the special legislation. Does the possibility of special legislation influence negotiations?
In preparing for this, I read an article in a union paper. It stated that Mr. Harper’s former Conservative government made it clear it would bring in special legislation if a strike were to occur at the Port of Montreal. That prompted the parties to negotiate and sign a collective agreement.
In this case, people weren’t necessarily expecting the Trudeau government to introduce special legislation, given the minister’s statements last August.
I was at the bargaining table until this past Tuesday. In our opinion, the special legislation that the Minister of Labour announced on Sunday killed any chance of finding a resolution. On Tuesday, the employer walked away from the table after the union presented an offer.
The details of the negotiations go from one bargaining table to the other, in accordance with the parameters agreed upon by the parties with the mediators, but the employer walked away from the table. There’s no doubt in our mind that, far from helping the bargaining process, the special legislation killed it entirely. In our opinion, the employer is waiting for the special legislation.
I want to point out that, even before the special legislation was announced, the union had sent two strike notices in response to two measures taken by the employer. For seven days, we have been saying that if the employer withdrew these two measures and reverted to the provisions and practices that existed on April 9, 2021, before it changed the dockworkers’ working conditions, the Port of Montreal would reopen within hours.
There’s no need for special legislation. All the employer, a representative of which will testify after me, would have to do is withdraw these two measures and revert to the provisions that existed on April 9 and the strike would be over. We made this offer seven days ago, and there has been radio silence from the employer since then.
I very much appreciate your appearance here, gentlemen, and your assistance with understanding the context within which we are examining this bill.
Let me say, from my perspective in terms of the Senate, our job is to look primarily, in this situation, at the constitutionality of the legislation itself. We’re not here to look into, delve into or make a judgment about which side in a labour dispute is meritorious or not, or if both sides are or are not. We’re here to understand and examine the government’s legislation and whether this is both an appropriate and a constitutional response.
The Government Representative in the Senate had tabled a constitutional opinion today, or a Charter Statement, about how the government sees this bill complying with the Charter, and very similar, Mr. Murray, to the comments that the minister has made in the last few days, which talk about the general, broad spread economic impairment, job loss and other things that would affect many parts of the Canadian economy. She makes reference to, but doesn’t put forward as a central provision, the exacerbation of that problem due to the pandemic.
I’m struggling with that. First of all, a “broad economic impact” to me is not a test under the Charter. The Charter sets out the right to freedom of association in section 2. It sets out the government’s right to reasonable justification for limiting that in section 1. Tests in the courts, whether it is the Saskatchewan Federation of Labour v. Saskatchewan that you talked about, which went to the Supreme Court and established a threshold or a test of “significant interference,” or the Canada Industrial Relations Board decisions, which have established tests about the nature of public endangerment and the immediate dangerous nature of that. Again, the circumstances here don’t clearly set out how this particular bill meets it.
You’ve spoken about the fact that while many people bemoan there have been two years of negotiations without an agreement, almost two years of that was involved in the adjudication of essential services. That decision that I think came out in August of last year — which is fully within the pandemic time frame and the pandemic lens of looking at this — was issued and completely rejects the 20-plus witnesses, interveners and the 100‑odd pieces of evidence that had been put forward by the Canadian Manufacturers & Exporters association to indicate why these services were completely essential — a broad stroke — and that a strike could not take place.
Could you comment on your view of the constitutionality, the Charter of Rights and the relationship of section 2, the freedom of association, which grants the right to strike as recognized, and the section (i) limitations and justification for that?
I will give the floor to my attorney, Yves Morin, who will be better able to answer your question.
Yves Morin, Union Legal Counsel, Syndicat des débardeurs du port de Montréal — Canadian Union of Public Employees (CUPE 375)
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As Mr. Murray explained to you at the beginning of his speech, the 2015 Saskatchewan ruling enshrined what Justice Dickson said several years earlier. What we clearly, absolutely and specifically know today is that the right to strike is recognized by the Constitution in Canada. In fact, it is protected under section 2(d). Therefore, in this case there is a substantial infringement. Eliminating the right to strike is automatically a substantial infringement. It cannot be done without justification in a free and democratic society, as you stated so clearly, senator. At this time, economic considerations are being cited. I am not saying that we cannot discuss economic considerations and that they are not important. However, in our country, the right to strike was recognized a long time ago. In 2002, in Pepsi-Cola, the Supreme Court ruled as follows:
. . . our society has come to see it as justified by the higher goal of achieving resolution of employer-employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with . . . .
That applies when a strike is completely legal, as this one is. The issues of essential services and danger to the public have already been codified in the Canada Labour Code. These issues were also the subject of hearings before the CIRB, and a decision was rendered in June 2020. The issue that remains today is economic pressure. I would be lying if I said that a strike doesn’t serve to exert economic pressure. The purpose of a strike is to help workers, those who are vulnerable in the dispute, and to make sure that there is some balance so that workers can negotiate better working conditions.
Since the bill was passed by the House of Commons, what we are asking the Senate today is to change things and to scrap the protection granted by the Constitution and by section 2(d) for financial reasons. It is important to remember that, in addition to the Maritime Employers Association, which is an entity that exists under section 34 of the Canada Labour Code, the longshoremen’s real employers are five shipping companies that form a board of directors and that earn billions of dollars in profit. This is not a system where anyone on the employer side is suffering, far from it. That doesn’t mean that economic pressure is something trivial or unimportant. However, the decision that you need to make on the constitutional aspect of the case requires you to examine the facts from a Charter perspective. You are the guardians of the Charter. You are the guardians of those values that apply to all Canadians. It would be too easy to ignore all of that. Here are the constitutional principles that are at stake.
Mr. Morin, I’m sorry to interrupt you. I would like to continue on with a question.
The 2020 Canada Industrial Relations Board decision took note of the fact that the union has committed to process any kind of goods that are destined for Newfoundland, because of the understanding of the critical nature of ferry passage, and would unload any ship with respect to goods to Newfoundland. You have offered this for pandemic goods.
The employer I spoke to two days ago indicated that when they asked the union in the last strike to unload something, the union did so when it was within the parameters of those agreements and the offer the union put forward. They indicated there weren’t many cases of that because of the logistics issues, and we’ve spoken about that.
For me, it’s not who did what or the good offer was there and there’s good faith on both sides, it’s the fact that we are essentially down to an argument of economic harm to prevent a strike. There is no strike that I’m aware of, particularly in the private sector, where the goal of a strike is, not to harm the economics of a country, but to bring financial pressure on the employer. The balance needs to be there.
The Canada Industrial Relations Board decision very clearly sets out, after looking at all of that evidence, that it would irreparably harm the right to strike of these dockworkers if all goods were deemed essential, which is essentially what the back-to-work legislation does — “This is too much harm and this is essential work. You need to go back to work.” This stretches far beyond what any of the court decisions or Industrial Relations Board decisions have granted in the past.
I also want to know if you’re aware of the fact that the government has brought forward in Bill C-14 a provision that would allow them to use regulations —
My question is for Mr. Murray. Thank you for accepting the invitation. I would like you to tell us about the atmosphere in the workplace during negotiations. How has that atmosphere evolved since 2018? The situation we’re in now, this special legislation, did you see it coming?
To be perfectly honest, I didn’t expect special legislation. The employer implemented economic measures against our dockworkers not once, but twice. We demanded that the employer drop those economic measures, and we offered to drop our strike measures, which we took in response to the employer’s economic measures. We haven’t received an answer yet. If the employer had responded, the port would’ve been back up and running seven days ago, and we wouldn’t be discussing special legislation today. As for the atmosphere, it’s obvious that —
In answer to your questions about the atmosphere in the workplace and at the bargaining table, I feel that it is respectful, as it always is between the parties. I have to say that the problem has been ongoing for years and has to do with the length of time it takes to negotiate collective agreements. We don’t have the real decision-makers at the bargaining table. The shipping companies aren’t there. The chair of the board of the Maritime Employers Association isn’t at the bargaining table. This is my fourth round of negotiations, and I’ve seen a chair of the board sit down with us so we could —
The mood at the bargaining table is good. The problem has more to do with the length of the negotiations, and it’s always the same thing, specifically, that we are not sitting down with the real decision makers, which are the five large, multi-billion-dollar shipping companies, as my attorney told you earlier. Accordingly, it’s not surprising that it takes two or two and a half years to negotiate a collective agreement in our industry.
I would like to follow up on that. We’ve heard a lot about the problem of working hours. What are the demands on the employer’s side? We understand that working conditions have included working 19 out of 21 days, and there has been much talk of work-life balance. Prime Minister Trudeau even mentioned it. I suppose he must understand the situation. I will let you answer that.
That is one of the union’s main issues. Without getting into the details, we submitted proposals at the bargaining table that would ensure better work-life balance for our members. It was about breaking the famous 19-21-day cycle. Those who got less work would in turn take a pay cut. We never called for equal pay for these demands. The employer said that it would need a certain number of employees to fill in for people going on leave in order to achieve better work-life balance. We believe we met management’s demands. Unfortunately, the employer still thinks that the status quo on working schedules is the best solution, or it is making proposals that would apply to very few of our members. As far as we are concerned, there is a lack of willingness on the part of management to improve work-life balance. I have to tell you that the change in working schedule that the employer announced is the opposite of the work-life balance we were seeking. This is a direct attack on the rights of our longshore workers. That’s why we sent out the notice of an unlimited general strike. If the employer reinstated the schedules we had on April 9 — and are virtually always used by shipping companies, whether there are one, two or three ships in port — we would not be discussing special legislation this morning.
As you mentioned, five shipping companies are the employers and, if I understand correctly, they care more about profit than the interests of the workers. The strike is apparently costing $25 million a day. Is there some truth to that, or is this something that these shipping companies, the employers, have made up?
Senator Dagenais, I don’t know if that figure is correct, but let’s assume it is. It is apparently costing $25 million a day. The union submitted a proposal to the employer, who will testify later, seven days ago, and for those seven days the employer has been silent on the union’s offer, which was contingent on the employer’s lifting the measures it took against us. We were prepared to stop our strike immediately. In the past seven days, there has been no accountability for the $25 million in potential losses per day, and the employer has remained silent. Otherwise we would not be looking at special legislation. The port would have been open for the past seven days if the employer had simply responded.
On the issue of essential services, grain is already covered under the Canada Labour Code. We made a commitment to the Canada Industrial Relations Board that we would continue to serve Newfoundland and Labrador in both directions, and we have honoured that commitment. Every day the longshoremen were on strike, we kept that commitment, and the work continued seamlessly. The province of Newfoundland and Labrador has never been affected by this strike. In addition, without any obligation on our part, given the pandemic, we offered last summer, as we did this year, to allow the employer to use longshoremen to unload containers of medical supplies, if necessary, that were at the port in Montreal. We have not received any requests of that nature over the past seven days. Last year the employer sent us a list of 366 containers, but when we looked a little closer at the contents, we found that there were pears and chocolate, which unfortunately are not related to the pandemic.
I would add as a final point, and you can confirm this with the Canada Border Services Agency, 93% of all medical supplies, including vaccines, enter the country through air services at Lester P. Pearson Airport. Therefore, when you hear that a lot of medical supplies are stuck at the port in Montreal, I can tell you that the employer has not made any such request to us for seven days. I can only assume, then, that there is none.
Isn’t management’s refusal to meet with you a strategy to inevitably lead you toward special legislation? We have seen that in other negotiations. The union acts in good faith, but sometimes management remains silent knowing that there will be special legislation and that someone else will settle the collective agreement in its place.
Unfortunately, Senator Dagenais, I have to say that I agree. With all due respect to Minister Tassi, as soon as she announced her bill, even though we had already offered to end our strike if the employer dropped its changes in order to get the port up and running again, the fact of the matter is that the employer did not budge and had no intention of negotiating because of the special legislation.
I can tell you that we asked that these two measures be reset to what was in place on April 9 and, as we speak, I do not even know, in the event that our members are forced back to work by special legislation, if the men and women we represent would have the same work schedules that were in place on April 9 and which in practice are still being used. This is a mystery to me.
Even if the employer says that it has the right to use them under the collective agreement, these schedules are virtually never used, unless it is to punish the dockworkers. I am going to wait for an answer. I put it to the minister and the Prime Minister, but I would like to know if the conditions that existed on April 9 will be reinstated.
First, I would like to thank Mr. Murray and Mr. Morin for being here with us today. It’s important to hear the parties’ perspectives directly from them, and not through the media, which can sometimes paint an incomplete picture.
To pick up on Senator Dagenais’ excellent questions, I would like to ask about the changes that were imposed by the employer on April 9, without discussion and unilaterally, if I understand correctly.
From what I understand, one had to do with a change to work schedule policy and the other related to guaranteed hours. Can you clarify this further?
I also have a second question for you right away. Does the special legislation, if passed, restore the collective agreement as of January 1, 2019, which will require the employer to pay the guaranteed hours?
With regard to guaranteed hours, Senator Dalphond, that is a trade-off that has existed for 50 years thanks to the absolutely incredible availability of longshore workers. What they get in return is the job security that is the cornerstone of our collective agreement.
From what I understand, the employer was going to comply with that provision should special legislation come into effect. However, we do not have any guarantees that the employer will comply with the working schedules, which were uninterrupted schedules that were used 99% of the time, even if there were only one or two ships in port. I do not have any answers on that.
Like you, I, too, read the bill where it talks about the extension of the collective agreement. I would also like to add that, if possible, should you pass this bill, honourable senators, you should add to section 6 that the working conditions and scheduling practices that were in effect at the Port of Montreal on April 9, 2021 — so before they were amended by the employer — should continue to be applied in order to protect the men and women that our union represents.
If you were to pass this bill, it would be the best way to protect those men and women, so that the employer does not continue to punish the people we represent after they are forced back to work. If back-to-work legislation is passed, although that is not what we want, there would have to be a period of mediation afterwards, and this would have to be done in the best possible conditions.
That is why we are asking you to make this addition to section 6, in the event that you pass the bill, so that after the extension of the collective agreement, the employer will comply with the working conditions and practices that were in effect on April 9.
You say that you are dealing with an association of employers that is rather absent and sends public relations people to the table, but that the real decision makers are not there. I noticed that they haven’t appeared in the media, as we haven’t seen them. I really want to hear what they are going to say to us in a little while because they have virtually stayed silent. We have heard from the Minister of Labour, we have heard from the government and you, but we have not heard from them. It leads me to believe that you are right when you say that they are rather discreet and even absent.
In this situation, couldn’t arbitration be the means of obtaining, through a decision imposed by a third party, solutions that these absent employers are not really interested in coming up with?
Results might be achieved more quickly with arbitration than by waiting on these people for years.
It all depends on the outcome, senator. With all due respect, imposed agreements leave lasting scars. It’s an admission of failure if the employer doesn’t manage to reach an agreement with the Syndicat des débardeurs du port de Montréal, which many employer associations have managed to do in the past. This isn’t the first time. We’ve been part of the Port of Montreal for 100 years, and there have been lots of collective agreements. This would be an admission of failure for this employer.
Depending on the outcome, with all due respect, when a collective agreement is imposed by a mediator-arbitrator, that leaves lasting scars, and I have to say it will also do lasting damage to the hearts and souls of the men and women we represent. It could affect their resolve to go back to work with a positive attitude.
When things get so bad that a mediator-arbitrator has to impose a collective agreement, that’s kind of an admission of failure, and I’m not sure these people will hold on to that sense of pride in working for this employer. I do know that they’ve been proud to be represented by their union, but I’m not sure they’ll feel quite as proud to work for this employer.
The last time there was special legislation was in the early 1970s. If we’re talking about ports, two special bills were passed for the Port of Vancouver. There were massive complaints about both bills from the International Labour Organization, which described them as unconstitutional. I might add that neither special bill passed by Conservative governments for the Port of Vancouver can be found in the House of Commons legal corpus anymore.
Thank you for being here today. Other ports in this country have labour issues, some worse than others. The Port of Halifax, for example, seems to be doing well and has consistently had labour and employer peace. Is there no way to learn from other unions and other employers how to help make this work? Montreal is not the only port in Canada, of course, and it may have different working conditions, but surely pay equity and scheduling should be equal across the country. Why does this continue to be a problem?
Madam Chair, if I could intervene — and you’ll have to stop the clock here — I don’t know whether you are not getting it, but we are constantly having the translator tell us it’s inaudible. I’m not sure where in the chamber you’re getting translation when we are not getting it here. It is unfair that many senators are not able to hear what the witnesses are saying. We need to correct this problem before we can continue.
Madam Chair, I apologized to you when I say this: I don’t care whose problem it is, this is a question of privilege. I am not hearing what the witnesses are saying, so if we cannot fix something in 2021 when we are wanting to do these types of virtual meetings, then either we stop this procedure or we fix the problem, because I am calling this on a question of privilege. I cannot understand what’s going on.
Chair, prior to my relinquishing the floor, I have to agree with Senator Plett. We have other witnesses coming up later this afternoon. If we’re going to have the same problem, the inability of the interpreters to do their work will just go on. They are not the problem. It’s the sound that is the problem, so I hope that our technical people are looking at the next set of witnesses, who will also be appearing remotely, so that we don’t have the problem as we continue.
First of all, let me say, welcome, gentlemen, to the Senate of Canada and the problems related to this type of meeting. We appreciate your indulgence and hopefully your understanding.
My first question is around the mediation that the bill proposes. The bill proposes that mediation would last for 14 days with the rights of the parties, by agreement, to extend for another 7 days, for a total of 21 days, in which all outstanding issues could be decided through the mediation process. This is what the bill proposes. How optimistic are you, gentlemen? Are you optimistic that an agreement can be reached in that period of time? What is your general perspective on the specific provisions in this bill related to the mediation and potential arbitration processes?
I will repeat that, ultimately, we would definitely rather not have special legislation regarding the men and women we represent.
We mentioned the reasons earlier. If the employer had accepted our offer asking it to rescind these measures, we would have withdrawn our two strike notices, and we would not be here discussing special legislation.
That said, regarding the number of days and the process with the mediator-arbitrator, we want to congratulate the parties, such as the Conservative Party, that adopted amendments to the bill and got the phrase “last best offer” removed. This amendment was made in the House.
For your information, I also want to point out that even though this amendment was adopted, the changes have not yet been made to the bill you have. There is an error in paragraph 15(1)(c), which still contains the words “final offer,” even though the NDP’s amendment, which was supported by the Bloc Québécois and the Conservative Party, removed the words “last best offer” from the bill.
However, senator, everything depends on the arbitrator who is appointed. The parties can submit a list of names based on the experience required. The longshore industry is unique. We need to find people who are familiar with it and understand it within a very short timeframe. We have our own special language, with characteristics that are specific to the longshore industry. That being said, if the senators pass this bill, which we hope they will not, could they consider appointing assessors for each of the two parties to help the mediator-arbitrator better understand the situation?
Not many people in Canada have the privilege of fully understanding the nature of our industry. The CIRB is very familiar with the longshore industry because it had to render decisions on it several times.
What’s more, senator, there are very few arbitrators who are familiar with our industry and who could, in a very short timeframe, help the parties agree on a collective agreement or, ultimately, render a decision that would apply and serve as a collective agreement.
Thank you. The minister has told us that the strike action you initiated came about pursuant to the employer’s actions on April 22 advising the union that it had imposed a specific shift schedule requiring workers to work an entire shift. Following that, the union gave notice of an intention to stop all work. This is the minister speaking, not me.
I understand that you believe you were responding to provocations from your employer. However, did you consider or weigh the broader implications of your work stoppage on Montreal and the Canadian economy when you took your decision? What responsibilities do you believe you, as a union, have toward other Quebec and Canadian workers during this time of a national crisis?
Senator Plett, with all due respect, of course we considered that, since we told the employer that if it retracted this schedule change, we would immediately withdraw our strike notice.
Of course we considered that. We have been saying for seven days now that if the employer had maintained the working conditions we had on April 9, in terms of both job security and scheduling, we would not be here today. There would be no special legislation, the port would be operating normally, and we would still be at the bargaining table.
Again, for seven days, we have been asking the employer to restore the working conditions and practices that were in place on April 9.
As far as the pandemic is concerned, and at the risk of repeating myself, we were under no obligation, since the CIRB decision made it clear what constitutes essential services. From a humanitarian perspective, given the pandemic and with no obligation on our part, the longshore workers’ union said it would take care of containers with supplies related to the pandemic. Of course we are concerned about the pandemic, and we recognize that these are extraordinary times. As an exception, and without expecting any thanks, we were prepared to mitigate the circumstances of this unusual time by unloading medical supplies at the port, if need be.
Thank you. I appreciate that answer. Since you used the phrase “with all due respect,” let me tell you there is no ill will intended in any of my questions. We are clearly trying to get to the bottom of some situations here.
With respect, Senator Plett, you’re putting me in an awkward position by asking me to comment on a political issue. I feel I have to point out that, ultimately, if you pass the bill we are asking you to reject, and if the parties don’t reach an agreement, it’s the Liberal government that will assign an arbitrator to our case. For that reason, I hope you don’t mind if I avoid your question.
However, if Prime Minister Trudeau were to call us up, as we’ve invited him to do, or if he were to call up the employer and ask it to revert to the employment conditions and practices that were in place on April 9, before the employer took economic measures against our employees, I would be honoured to speak with Prime Minister Trudeau. I would tell him that, if the employer drops its measures, we will drop our two strike measures. Then the port could reopen, and there would be no need for special legislation. I would be pleased and honoured to speak with Prime Minister Trudeau in that case.
Thank you. Well, let me just suggest that, ironically, we all become politicians when we’re here. Some of the questions that are being asked are political, and some of the answers we’re receiving also border on being a little political, again, with all due respect.
The minister has stated that permanent diversions to the U.S. ports are likely due to the strike, and these will have long-lasting negative effects on the integrated transportation system around the Port of Montreal. How concerned is your union about that? Do you anticipate that it will impact the numbers of people working at the port in the future?
Thank you, gentlemen, for being here to answer our questions. I’d like to go back to your statements about the economic consequences. Of course this strike is legal. The courts have confirmed in their decisions that the right to strike can’t be taken away when there are economic repercussions, and I recognize that. However, you didn’t mention that the present economic repercussions are not the same as those assessed when the courts examined this in the past. We are in a pandemic. Small businesses, with just a few people running them, are on the brink of bankruptcy. They have been struggling for a year and are waiting for their materials. I’m not talking about medical supplies, but rather all kinds of goods that allow businesses to keep their heads above water.
I’m asking you a difficult question that’s not about whether it’s legal for you to strike, but rather whether it’s right for you to strike at this very unusual time. Court decisions can’t explain everything, nor can the current context of this strike.
We actually are concerned about the economic considerations. At the risk of repeating myself, for the past seven days, we have been asking the employer to withdraw the two measures affecting our dockworkers. We represent the men and women who work at the Port of Montreal under certain working conditions. The employer was the first to hit our dockworkers with economic measures in an attempt to influence the bargaining. We had no choice but to go on the defensive in response to those measures. We are so concerned by the situation that we have been asking the employer for seven days to rescind the measures so that we can rescind ours. Had this happened, operations at the port would have resumed immediately.
I understand your dispute and also the fact that you’re dissatisfied with this unilateral change to the working conditions. However, the impact is not limited to the economic interests of big business. It’s also affecting self-employed workers and many people. How can you justify this strike? I understand that you’re doing it for your workers, but the strike is hurting many people in our society. That is what I am asking you.
If the employer had been open to discussing the possibility of postponing the strike and all kinds of things, it would have responded to our offer seven days ago. We are well aware that these are extraordinary times. We offered to take care of containers of medical supplies, if there were any at the Port of Montreal, and we had no obligation to do so.
Hello gentlemen. Mr. Murray, I was surprised by something you said yesterday, and I quote:
We will contest the validity of this bill before the courts, and we have already filed a complaint with the International Labour Organization.
I will not dwell on how long it could take the International Labour Organization to render a decision. However, I’m trying to understand your logic. If this bill is passed and receives Royal Assent, you’re saying that the employer hasn’t responded to you in seven days and has ignored many of your demands. However, the bill would also force the employer to sit down at the table and engage in mediation.
I’m trying to understand how this would serve the interests of the workers you represent and the interests of the public. The bill was called for by the Government of Quebec and fully supported by the Government of Canada and the House of Commons. I’m trying to understand your logic as to why you would contest a bill that is passed in a democratic way.
In a democratic context, the Charter provisions apply. We believe that this law is unconstitutional and would not pass a court challenge. The courts won’t be getting the union’s complaint first thing tomorrow morning. First of all, we believe the bill is unconstitutional. That’s why I said we would challenge it, just like the Canada Post Corporation workers challenged the special legislation that forced them back to work, and just like other workers in Canada have challenged special legislation. We can just look to Government of Quebec legal experts, who received a Court of Appeal decision three weeks ago.
That said, aside from the constitutionality issue that the courts will have to rule on, what we have been saying since the start of this meeting, where you’ve given us the privilege of speaking to you, is that special legislation would not be necessary if the employer reinstated the working conditions and practices that were in effect on April 9. The strike would end immediately.
We are directly in the eye of the storm, and the longshoremen’s union is being blamed, whereas, in my view, the employer is getting off easy in terms of its responsibility to remove the two measures it imposed and continue to apply the practices that were in place on April 9.
At the risk of repeating myself, I hope you will amend the bill to restore the working conditions and practices that were in place on April 9. The employer is getting off easy in terms of the role it has played in creating the situations we find ourselves in. I would remind you that we were not the first to draw. The truce ended on March 21. At no time did the longshoremen’s union send out a strike notice. At no time have we sent out strike notices since the truce ended on March 21, 2021.
Can you assure me, senator, that the working conditions that were in effect on April 9 . . . What will the working conditions of the people that the union represents be if you force them to go back to work? That leaves me with two options —
With all due respect, senator, I will repeat that none of the provisions of the bill ensure that the longshoremen I represent are able to return to work under the same working conditions and scheduling practices that were in effect on April 9. If you are telling me that you will amend the bill and add a provision that will enable the working conditions and practices that were in effect on April 9 to continue to apply, then I would look and consult —
No, no, I’m sorry, but you are forcing people back to work, and I don’t even know what kind of working conditions they will be going back to. I’m not negotiating. It’s Parliament and, ultimately, the Senate that are forcing the men and women I represent back to work. I am just saying that there is a big unknown when it comes to the working conditions our people will be going back to.
Our next witness is from the Maritime Employers Association. I would invite you to introduce yourself and to make your introductory remarks of at most five minutes.
Martin Tessier, President, Maritime Employers Association
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Honourable senators, thank you for the opportunity to speak to you today about the extraordinary situation at the Port of Montreal and to answer your questions.
My name is Martin Tessier and I am the president of the Maritime Employers Association. The MEA is the employer of the longshoremen and checkers in the ports of Montreal, Trois-Rivières/Bécancour, Hamilton and Toronto. It hires, trains and deploys employees, and it negotiates and administers collective agreements.
The MEA is the employer pursuant to section 34 of the Canada Labour Code.
First, allow me to reiterate how much respect I have for the men and women who do the longshore work and checking. They are an important link in the logistics chain and that is why they were designated as essential workers by the various governments in the context of the global pandemic. The Port of Montreal is a public institution that offers an essential service to the public.
First, let me tell you that we did everything within our power to reach a negotiated agreement. After 30 months and more than 120 days of negotiation, with the support of four different mediators, while facing violent events and after a truce of seven months, we need to face the truth: We are at an impasse.
Let me be clear. This bill is not a victory.
It is a failure of negotiation. None of the witnesses before you feel like celebrating today. The MEA made every effort to reach a negotiated agreement. Over the course of the many meetings, we made several counter proposals and accommodations, including on the issues the union publicly identified as a priority. I say publicly because, in reality, the situation was quite different behind closed doors. For example, there was the initiation of strike action in August 2020. Allow me to quote a decision made on March 17 by the Canada Industrial Relations Board about that:
The CIRB finds it difficult to look favourably upon the fact that the union called a strike in August 2020 before providing the employer the necessary details of its demands and without presenting its monetary and wage demands. In our view, this seems irresponsible and inconsistent with a reasonable bargaining process.
The last August strike represented a loss of $600 million for our economy. Even more, it took us almost three months to get back to normal.
The MEA did everything it could to reach a negotiated agreement. Despite the many meetings held by the parties, our positions are too far apart. I want to take this opportunity to thank the Federal Mediation and Conciliation Service for its assistance and hard work, especially Audrey-Mélissa Therrien, Robert Bellerose and Peter Simpson.
Despite all those efforts, we are far from an agreement. Even with the mediators trying to facilitate an agreement, the parties are no closer. In the meantime, our industry and the Port of Montreal are suffering.
The anxiety and the uncertainty have an impact on the market, and the our volume of goods is dropping.
And one thing is for sure: no bookings, no port.
Thousands of SMEs depend on the Port of Montreal, as do factories and workers. The health and safety of Canadians is at stake. Tests, PPE, pharmaceutical ingredients and other medical supplies arrive in Canada through the Port of Montreal.
In closing, I would like to repeat that although this bill is necessary, it is not a victory for anyone. All the witnesses appearing before you today would have preferred another outcome, but we are at an impasse.
This failure to reach a negotiated agreement needs to be addressed immediately. In exceptional times and circumstances, we need exceptional measures.
Rest assured that the MEA still wants a negotiated agreement.
We are committed to negotiating an agreement, and will put all our energy towards reaching this goal.
The union claims that the MEA left the bargaining table. This statement is utterly false. The mediators proposed an approach that was unprecedented and without prejudice to bring the parties closer. This approach did not work, unfortunately.
We then told the mediators that we would be unable to meet the union’s demands. We also told them that we would have to consider our options and that we would continue to be available for negotiations.
Thank you in advance for your consideration of this issue. I will be pleased to answer your questions.
I asked Mr. Murray this question earlier, and I quoted an excerpt from the Canada Industrial Relations Board’s decision listing all the goods that were in transit or in limbo, including medications, fertilizers, explosives, foodstuffs and perishable goods. We are talking about a variety of products that could be dangerous for human life, safety and security, and the environment, depending on how they are handled and stored and the standards.
Can you explain the nature of the goods that transit through the port and tell us what might happen if these goods are left sitting at the port or redirected elsewhere for transportation?
First of all, thank you, senator, for your question. As I am sure you know, 85% of consumer goods in Quebec, Ontario and the U.S. Midwest transits through the Port of Montreal. Many products are being held hostage and cannot transit, cannot be transferred, whether it be food, explosives or medical equipment.
Although the union is saying that it will move the medical equipment, things are not as simple as that, because it is difficult to locate that equipment. Yes, it is true that the representatives said that they would do it, but this is having a major impact on all products that transit through the Port of Montreal. Right now, they are not even coming to the Port of Montreal.
To answer the other part of your question, when companies decide to ship through another port, it could mean that those goods do not come back to Montreal because new consumption habits may be formed. It’s like us during the pandemic. We changed our consumption habits and routines. We went to one store rather than another, and we will probably maintain those habits. That is the one of the risks we are facing at the Port of Montreal.
Yes, there are effects related to the pandemic, but there are also all of the other effects on the goods that people need in their day-to-day lives.
We are hearing more and more the union and some analysts say that, basically, you have been maintaining your position a bit more strongly and dreaming of special legislation. I am not the one who is saying that. Do you want special legislation so that you have more leverage? Do you have anything to say about that?
Once again, thank you for the question. It’s an excellent question.
I was hired by the MEA to improve labour relations. I’m trained as a negotiator. The worst thing that can happen to a negotiator is special legislation. That’s the worst thing. No one wants a third party to be making the decisions. We are at an impasse.
At the risk of repeating myself, as I said in my speech, this has been going on for 30 months and more than 120 days. There were rotating strikes last summer that were described as irresponsible and unreasonable because the union had not submitted its financial demands. We have a number of demands, and the union is still proposing three or four major demands, but I can tell you that there’s much more than that. We’re very far from the finish line. This is the last resort. We didn’t want to end up with special legislation.
However, now we have the support of a full-time mediator and two super mediators, and we still have not managed to come to an agreement. These people have been with us since February 6, but we haven’t managed to come to an agreement in spite of their efforts. I don’t think we were expecting special legislation. That is not what we want. Special legislation has become necessary under the current circumstances to protect Canadians.
The point we have reached today is not where we want to be as an association. We are the longshoremen’s employer. Basically, I am like an employers’ union. Therefore, when Mr. Murray says that I am a human resources drone and that we are sending public relations people to negotiate, that is simply not the case. I have the same role as Mr. Murray, I have as much power as he does, and we are the ones who make the decisions at the bargaining table. As for the five shipping lines — and it is not just the shipping lines, terminal operators also sit on our board of directors — they give us our mandate, and we make decisions within that mandate, as the union does when it makes its decisions.
We most certainly do not want special legislation brought in, when we have already started negotiations. However, we must face the fact that we have had the support of a special mediator for over 30 months now, and we are still far from an agreement.
You went to the Canada Industrial Relations Board for a ruling on what constituted essential services. The hearing took 20 days and a huge amount of energy. Lots of witnesses appeared. It took a year and a half. You lost a year and a half to that process. The board rejected your “immediate and serious danger to health” claim. We agree that there is a danger, but the issue is with the “immediate and serious” part.
Do you believe the government should have amended the Canada Labour Code to expand the notion of an essential service, amend the criteria and do what was done for grains? The amendments that have to do with grains came about because of port strikes, when a small group held an entire economy, an entire sector, hostage by striking. That tilted the economic relations playing field in its favour. The issue was addressed by amending the Canada Labour Code. Do you think the government should have amended or ought to amend the Canada Labour Code?
Once again, thank you for the question. I’m not the government, but as I said in my speech, I consider the Port of Montreal to be an essential public service. Should the government amend the laws to protect that? I’ll leave that up to them. We spared no effort in our attempts to protect Canadians from a work stoppage at the Port of Montreal. We abide by the decisions of the court and the CIRB.
Unfortunately, less than three weeks after the decision in favour of the union, on June 29, strikes began at the Port of Montreal. After that, there were rotating strikes, followed by an unlimited strike from August 10 to 21.
Mr. Murray repeatedly mentioned reinstating the collective agreement conditions and related practices that were in effect before April 9. He stressed that and used the expression “related practices” at least a dozen times during his testimony.
Can you explain what happened? Did you change a practice or decide to apply the collective agreement to the letter? Is that what’s problematic for the union?
Extraordinary times call for extraordinary measures. Under our collective agreement, we are allowed to use regular schedules, as they’re known, which require employees to work seven hours a day. Because we had a weekend strike, we waited until after the week of the weekend strike, and we couldn’t meet our staffing needs in the days that followed. So, on April 22, we sent out a press release stating that we intended to use regular schedules beginning on April 26.
That’s part of the provisions of the collective agreement. It’s not a notice of a change in working conditions within the meaning of the Canada Labour Code. We have used that schedule in the past. The union even made a request to that effect at the bargaining table, and it was recognized that we have the right to use it, because the union wants us to remove that provision from the collective agreement. Obviously, that schedule isn’t used very often. I agree with Mr. Murray on that. However, we are facing an exceptional situation. We are in the middle of a pandemic, and we are essentially shut down two out of seven days every week. We need greater operational flexibility. That’s why we made that decision.
Mr. Tessier, thank you for being with us. I want to express my appreciation again for the phone call you graciously undertook with me earlier this week.
I am primarily interested in the Charter compliance element of this legislation and not who is right or wrong regarding any of the issues that have unfolded. I want to ask one question with respect to that, just for clarity. In the exchange that you just had with Senator Carignan, you were speaking about the change in working schedule — hours of work — and the provisions within the collective agreement.
Did you also make changes with respect to job security provisions? Was there another measure you took beside hours of work? I understood there was.
Yes, we did. On April 10, we sent a notice to the union saying that within the next 72 hours, we will change the working conditions about the provision on job security, which are wage guarantees.
Then, because we lost volume and despite the fact that the Port of Montreal and the union are not in agreement about the volume decrease that we had — 6% or 11% — we could all agree that such decreases would have a significant impact on employers or an industry. We can see that whatever volume decrease we experienced, all other ports in North America had an increase in volume. Based on this, and the fact that we are the only port in North America with job security and wage guarantees, it was not affordable for us, with the loss of such volume, to maintain such a disposition in the collective agreement.
Thank you. I just wanted us all to be clear that it was not simply a provision under the existing collective agreement that was acted upon. So I appreciate that.
In response to Senator Carignan, you expressed a view about the essential nature of the work of the port. In fact, the association expressed that view over almost two years of the expert tribunal’s adjudication of the issue around essential services. I appreciate that you believe they are essential, and I think you expressed that you believe they should be essential in terms of how the structure of the Labour Code operates, et cetera. However, the tribunal ruled that the case you made failed to have an evidentiary basis. I want you to confirm that this decision came out during the summer of 2020, which was during the pandemic.
I have a sense that, on the constitutionality of this, we’re considering, and people have been talking about, whether there is right or wrong, how big the economic impact is, et cetera. Your understanding of the right to strike, the freedom of association and the Charter guarantees that exist and the limits of those, having been in this industry and having gone through the essential services hearing, is relevant to us as well.
Do you believe that the essential services designation you’re talking about, which was rejected by the tribunal — that your opinion supercedes that and should somehow imbue the constitutional right for the government to essentially withdraw the right to strike and the freedom of association, which are Charter-guaranteed rights?
Thank you for your question. Again, I’m not above the government or any legislation. Whatever I think, it is important to me, but I need to follow the rules. I need to make sure that I follow the regulations. That is why we challenged the decision of the CIRB, and we are waiting to see what our next steps are on this.
As long as the decision is there and it’s not challenged or changed, I will comply with it. This is why we are where we are. I would never say that my opinion is more important than any legislation...
The tribunal said that you’re wrong on your arguments around essential services. You’re challenging that. In the meantime, after essentially three days of strike, we have a government coming in and suggesting that these are essential services when we have had the expert tribunal say no.
So I’m stuck again around the constitutionality of this measure going forward.
If you’re awaiting what was already a long period to get to a decision with all the witnesses that you brought forward — if you’re awaiting an appeal of that — and the union is saying, “Get rid of that outside of the collective agreement job security provision that you have imposed, and the strike will be over and we can go back to work. We can continue to work out the protocols around the unloading that has been guaranteed,” why is that not a useful way forward? One more decision out of the Supreme Court that strikes down essential services is not going to be helpful to you either.
That’s another great question. All of this started with last summer’s strike. It was written in the CIRB decision that the strike was unreasonable. This created anxiety among all importers and exporters, and that was leading to uncertainty.
When people saw on March 21 that the end of the truce was coming, nobody wanted to get caught again in what happened last summer at the Port of Montreal, because it took us three months to get back to normal and relaunch the supply chain.
With those anxieties, we lost volume. By losing volume, it’s bad. If we were to answer the union by saying we are going to remove our option of changing working conditions — the second one is within the collective agreement — then it would not work for us, because we will lose volume again.
There is something with your question I would like to bring up. Mr. Murray is always saying that we never responded to his demand, saying that “if we remove your two options, we’ll remove the strike,” but I have a document here that we have put. It’s pretty simple. On April 25, the day before the general strike started, we said, loud and clear, that the reason behind the withdrawal of the income guarantee — in other words, not paying the hours that are not worked — still stands. Everyone is in agreement that there has been a drop in volume.
Regarding switching to a regular work schedule that consists of a change in the hours worked per shift from 5 hours and 20 minutes to 7 hours, that means simply adjusting to the impact of the partial strike. In order to maintain the flexibility of the supply chain and to protect the imports and exports of SME. Going on strike is one of the tactics available to the union. It is the union choice to proceed in this manner. Today, the Maritime Employers Association is preparing for the mediation session tomorrow.
Then, right after this, the union replied. Now they are saying —
Thank you. I appreciate both sides being aggrieved and wanting to set the record straight.
I’m coming back to the constitutionality and the impact of back-to-work legislation.
In the CIRB decision, as I read it, they said these aren’t essential services. There are other ports in Halifax, Hamilton — where you operate businesses as well — that these can be deferred to. We know some have gone through the eastern seaboard and up via trucking to deliver and you have lost volume, but the next time, the strike is in Hamilton or in Vancouver and they will lose volume as well. This is part of the balance of powers that are guaranteed in the Charter between employers and workers.
The question I would like you to answer is the logistics question that you described to me at great length. The problem with assuming that the volume will go to other ports and/or the logistical ability to remove containers from ships that come in. If you could respond to that. Thank you.
Mr. Tessier, I will ask a very direct question. I am always very annoyed when workers’ salaries and overtime pay are publicly disclosed with the intent to denigrate workers. Do you feel that dockworkers are overpaid?
That is not what we hear in the public arena. My second question is, that is not what you’ve said. You have been chosen by the maritime employers to represent them, as you yourself have said. As we heard from the union representative himself, you have not been seen at the bargaining table. Does that seem normal to you? I took the time to read your notice of appointment by the MEA from July 2020. It says that you have a wealth of experience in labour relations and that you are very human relations oriented.
Isn’t it unusual that you’re not present at the bargaining table?
First, I have been present for nearly three weeks now. Second, it is not my role within the association to be present at the negotiations. Here are some examples. We signed a nine-year collective agreement in Trois-Rivières, and I was not present. In September, we signed two collective agreements in Toronto and Hamilton in three days, and I was not present. Local 1657 in Montreal, which represents the checkers, held negotiations, and I was not present. My role is to liaise between the board and the bargaining team, and my bargaining team is fantastic. I have a vice-president of industrial relations who manages a bargaining team, and it is the team members who are doing this work right now.
The Maritime Employers Association is said to be a human resources organization, but it is also the employer of the longshore workers. Our role is to negotiate collective agreements, administer them, and hire, train and assign day labourers based on operational needs at the ports of Trois-Rivières, Hamilton, Montreal and Toronto. I think it is appropriate that I was not there when the discussions were being held, because that is not my role. However, when we come to the end of negotiations, as we have here, I have been present since the mediators asked me to be. I am at the bargaining table every day.
I’ll make this my last question, so that my colleague, Senator Griffin, will have some time. Between you and me, this is not the first time that we see the employer use this strategy and drag out negotiations knowing that there will be special legislation to get the job done in its place. Sometimes that is the impression we get.
Unfortunately, I can’t manage other people’s impressions and perceptions, but I can assure you, senator, with all due respect, that that was not the MEA’s intent. That is not what we wanted to do. We attended all the meetings, the more than 120 sessions, over the course of 30 months. We made many offers. I can tell you that according to last summer’s decision by the Canada Industrial Relations Board, a strike took place that was deemed unreasonable because we hadn’t even received the wage demands yet. Unfortunately, we can agree to disagree about the MEA’s intent, but I can guarantee you that that was not our intent.
Thank you for being here with us today, Mr. Tessier.
My first question relates to your website, which states that the shipments of grain and liquid bulk handling and Oceanex shipping to the Atlantic provinces are unaffected by the strike. I was wondering if you would verbally confirm for me that that is indeed the case, and which category is not having a problem with shipments?
Thank you for being here today, Mr. Tessier. We heard from the media that you’re not seen much, so it’s nice to see you, and it’s nice for the media to see you as well. I understand that there have been two issues since April, namely the guaranteed income and the shift schedules. Would you agree that if the special legislation is passed, the old collective agreement from 2013, which expired in December 2018, would apply and would automatically restore the employees’ right to a guaranteed income?
Yes, that is stated in the provisions of the legislation. During the last strike, there was a transition period that allowed us not to reintroduce job security, because you have to understand that we don’t have any more rail cars or freight. That means we would probably be paying people to sit at home doing nothing. Unfortunately, the law. . . Unfortunately, if the law is passed, it won’t be bad for us, the union or the Canadian economy. There will be no transition period. If the workers have to go back to work tomorrow, then yes, we will reinstate the provisions on job security, meaning the guaranteed income.
Yes, but there was a partial weekend strike, so we didn’t have to pay for those hours because the employees did not have full availability for seven days. However, if the legislation passes, we will pay everyone tomorrow morning, even though there was no work.
The second problem is the scheduling. You stated earlier in your presentation that this occurred because of the weekend strikes. This forced you to use the exceptional measures included in the collective agreement, because it is not the usual schedule and does not reflect the way you manage. The legislation will ensure that weekend strikes are no longer possible. Does that mean you’ll return to the usual schedule?
If the legislation passes, given that there are no transitional measures, we could always use the shift schedule, but, in all honesty, that is not our intention. If the bill is passed tomorrow morning, we will do away with the shift schedule, go back to an overlapping schedule and work with the union. If there are other operational issues, then in two or three months, we could use the shift schedule, but if the bill passes tomorrow morning, then we will go back to overlapping schedules.
According to Mr. Murray, two issues caused the strike: the changes to work schedules and guaranteed income. The coming into effect of this legislation will mean that, as of tomorrow, workers will go back to their regular schedule and guaranteed income.
Yes, because the legislation will alleviate anxiety and mitigate the impacts of the strike, which led to volume losses from a business perspective. The legislation will allay market concerns. If there is special legislation, then it will mean that it will be impossible for either side to use pressure tactics. We will therefore be able to reinstate — we will obey the law with regard to job security. We will have no choice. Given that there will be no more uncertainty, we will go back to overlapping schedules and do away with shift schedules. In order to do that, we need the provision of the law to allay market concerns and uncertainty and get our volume back up.
Thank you. That addresses two of the concerns raised earlier. If I understand correctly, you’re preparing for a mediation process. You’re an expert mediator. If, after 21 days, your mediator finds that no progress can be made and that neither side is willing to pursue the process, the mediator becomes the arbitrator. That is the person who will listen to both parties and make a decision about each contentious issue. How many contentious issues are there on the table? Are there 160, 25, 12?
There are lots. I don’t want to put a number out there because there’s always some disagreement with the union when I put numbers out there, but I would say it’s around 30, maybe 25 or 30 contentious issues at the moment.
Honestly, that’s where we’re at. I would have preferred to reach an agreement with the union, but we are so far apart in our positions that we need a third party to intervene. We’re prepared to take that risk.
There is talk of lost economic activity in Montreal, and that concerns me. Within your employers’ association, since you also operate in Toronto and Trois-Rivières, for example, could some of this activity be diverted to other ports that are occupied by the same operators, whether in Halifax or elsewhere?
It’s not a question of the same operators, but rather the same shipping lines. It’s a bit different. Your question gives me the opportunity to make the point. The shipping lines are not the decision makers at the Maritime Employers Association. I want to make sure everyone understands that, because we hear a lot of things.
We are the Maritime Employers Association, and we employ the longshoremen and checkers in Montreal, Trois-Rivières, Bécancour, Hamilton and Toronto. We make the decisions. I am like a president of the employers’ union. I have a board of directors, I have a mandate, and I make decisions based on that mandate, much like Mr. Murray does with his members.
Halifax and Philadelphia are ports that some of our shipping lines use. However, when you send the cargo elsewhere, it costs more in freight charges, which is great for CN and CP.
Thank you, Mr. Tessier, for being here. I am going to change my question. You spoke about the decrease in volume in the Port of Montreal. Do we have a prediction as to the long-term viability of the Port of Montreal if we continue to lose volume?
What about the economic impact on the Greater Montreal Area and the greater Quebec community if this decline in volume continues? Will there be jobs lost not just at the port but at the industries being fed by the port?
There was an independent study that was brought to my attention last week stating that we’re losing, as an economy, $10 million to $25 million a day with every day that goes by with the strike. I would say that’s a greater impact than only to the Port of Montreal.
It seems to me that this problem keeps coming back. This is not a new problem that we’re talking about here today. We can never permanently fix the relationship between unions and management in the long term, but do you see a long-term solution that would be acceptable to both the employers and the unions?
We tried to find a solution with essential services, but we were denied that at the CIRB. I think what we need to do is create a relationship with the union and make sure we’re not facing the same challenge the next time. We were about to do it in Trois Rivières, Hamilton, Toronto and with the port checkers in Montreal. I do not see why we should not be able to do it with Local 375.
Senator Lankin has been — for her reasons and rightfully so — preoccupied with the constitutionality of the legislation more so than some of us are. I’m one of those who believe, over the years that I have been with the Senate, that probably 75% of all divisive pieces of legislation have been challenged by one person or another about the constitutionality, and usually they pass the muster. I suspect this one will as well.
Some will say this is a political question and maybe it is. In my opinion, we have a government that has been reactive and not proactive, not only in this legislation but on much of what they have done. Justin Trudeau represents a riding in Montreal. If my MP in my city didn’t bother to intervene in a conflict that was as important to my city as the Port of Montreal is to the City of Montreal, I would be upset. In your opinion, why was the Prime Minister so passive in this conflict? Why is he uninterested in the future of the Port of Montreal, or is he?
I cannot say if he is interested in the future of the Port of Montreal or not because I have never had the discussion with him. I will not comment on that.
I’m going to tell you something. Last summer, Minister Tassi had a discussion with both parties. What was said to me — because they were truly believing in free negotiation — was that I had to work harder and ensure that we are putting all our efforts into negotiating a deal. Based on that, what we have done as an association is we built a schedule starting in November. We even went to Sherbrooke because the spokesperson at the union lives in Sherbrooke and he had some family challenges. We totally understood that. It was not something against him. We wanted to go there. We brought the negotiating team over there and the mediators came with us. They tried everything. On this, I think Minister Tassi tried to support us and both parties as much as she could. Now, after 30 months and more than 120 days of negotiations, we’re facing an impasse.
On what Mr. Trudeau thinks and whether it is a political question, you will see that I’m not a great politician. Probably I would not have a long career in politics, but I wanted to answer your question.
You did a good job of giving me a political answer even though you may not be a politician, so thank you for that nevertheless.
I asked a question of the union, and I’m going to ask you the same question and, of course, I asked the previous one of them as well. The bill proposes that mediation will last 14 days, with the right of the parties, by agreement, to extend another 7 days, for a total of 21 days, in which all outstanding issues — and you indicated to Senator Dalphond that’s between 25 and 30 — could be decided through a mediation process.
How optimistic are you that an agreement can be reached in that period of time? What is your general perspective of the specific provisions in the bill related to the mediation and potential arbitration processes? I think you partly answered the second part of that question, but how optimistic are you that this can be achieved?
As long as both parties come with realistic demands and are fair to each other — and I will agree with Mr. Murray that the ambience at the negotiation table is quite good, even though we are facing those challenges. However, at this point in time, both parties are in opposition. I think the 14 plus 7 days are needed because that might help us to achieve and negotiate. If both parties know that at the end of all this someone will decide for us, it’s not better for me than for the union. I think it’s a chance everybody takes, but after 30 months and the impact on the Port of Montreal — I will say the next sentence in French, if you don’t mind, because I don’t know the terminology in English.
The Port of Montreal is the economic hub of Eastern Canada.
That will put pressure on parties, and this is why I don’t like it. As I said, it’s not a victory to have special legislation for me as a negotiator, but after 30 months, 120 days, four mediators, including two super mediators, we need to come to the conclusion that we are at an impasse. I think the process that was proposed was one included in the first bill that was amended. I called it the “baseball” deal, and the best offer was removed. That would have been another good thing, but the amendment did not pass. At least if we have someone who can listen to us, we know that someone is a mediator and will say , “You know what? I think the union is right on that one.” Do you really want to go to arbitration after? No, because you know what the decision will be.
I’ve been at Videotron in the past, and although I did not go through arbitration for CBA renewal, I was involved with grievances after the lockout at Videotron. They hired me after that lockout to settle labour relations, and we had that process and it was pretty simple. We knew where the mediator was going, and after that we knew if we wanted to have a decision or not. I can tell you that we settled 700 grievances in two and a half weeks.
Thank you. Of course, you started off that answer by saying “if” both parties wanted to cooperate. If all parties had wanted to cooperate, we wouldn’t be here today doing this, so people didn’t want to cooperate.
The minister has stated that permanent diversions to the U.S. ports are likely due to the strike, and these will have long-lasting, negative impacts on the integrated transportation system around the Port of Montreal. You were hesitant to make observations about the general economics to Senator Mercer’s question, but do you have any idea how many companies or businesses have indicated to you that they will no longer be using the Port of Montreal when this is done?
To answer your question, no one is indicating to me directly because I’m not commercially involved with those customers. My customers are the terminal operators and the maritime lines. But I’m providing them with manpower, and I’m the employer of the longshoremen and the checkers. When we look at this, I’m not involved.
I’ve heard that some companies indicated that they are moving away and people are saying they might not come back. That’s a chance that we’re taking, but I cannot comment more than this, sir.
Thank you. The minister also stated on April 10 that your association gave 72 hours’ notice of its intention to modify the conditions of employment for members of CUPE 375. According to the notice, employees would no longer be guaranteed a minimum weekly income and would instead be remunerated only for hours worked. The union has spoken about increasing pressure tactics by you, the employer.
Why do you think this was the right time to take such action? Do you agree with the union’s assessment — I’m sure you don’t — that you have engaged in increasing pressure tactics?
I don’t agree with the union’s assumption, that’s for sure. The reason we used that — I think I explained it earlier — is it is important to see that we are the only port in North America that lost volume since January 2021. In the first quarter, we were the only port that lost volume. This is directly related to the uncertainty linked to labour relations.
Why am I saying that? Last summer we had a strike, and the Canada Industrial Relations Board described the strike as “unreasonable.” Then all the importers and exporters, when they saw the end of the truce coming, they said they didn’t want to go through what happened last summer again, so they started diverting their cargo to other ports. And this is exactly what happened.
For us, when we are losing volume like this, if we cannot have people working, we need to pay them to be at home. We decided to pay them for work done and work paid. We removed that disposition from the collective agreement because, at the federal level, we have the right to do that when a collective agreement has expired, and this is what we’ve done. This was not to provoke the union, but to protect us from the loss of volume that we were facing. We all knew we needed to make a deal as soon as we could because of the importance of removing the anxiety and uncertainty linked to labour relations is either to make a negotiated deal or to have another option, which is now special legislation.
Again I stress here, that’s not the goal of the association. We’ve been working with the special mediators since February 6, and we would have much preferred to have a negotiated deal.
Madam Chair, the last time I was cut a minute short. Again, I show I have a full minute left. I put this one on a stopwatch, Madam Chair. If you cut me off, fair enough, I will relinquish my time. Clearly, Madam Chair, I was shortchanged a minute last time and you are doing the same thing this time.
Mr. Tessier, thank you for being here. You made reference to the fact that you didn’t ask for special legislation, obviously. I gather you mean that it was the governments of Quebec and Ontario who asked for this legislation and you didn’t want it. When I compare what the union representatives said to what you are saying — and this is often what we hear in the context of labour relations — each is responsible for the delays and each is just as responsible for not being open to the demands of the other.
In the current context, where parliamentarians aren’t happy either about having to pass special legislation, including because of the economic impacts you raised, I’d like to know more about the considerations that inspired you during the negotiations with the union.
More specifically, I’d like to know this: The impact of the pandemic, therefore the economic interests, but also the human impact for businesses and individuals, even the economic considerations related to work stoppage, a strike and service interruptions, in other words pressure tactics — was all that taken into consideration?
I notice that at first you said that you were not that far from an agreement, but that was at odds with what you said later. You talked about over thirty provisions or items that kept you from coming to an agreement with the union. I would like to hear more from you on the situation, especially now, with the pandemic.
First, to be clear, we were never close to an agreement. If that is what I said, it was not my intention. We were never close to an agreement. We did evaluate all the impacts and possible scenarios, and took them into consideration. Last summer, we withheld the payment of evening and night premiums, and we knew that that would cause a lot of issues. However, by cutting the pay for hours not worked and keeping wages at the levels they were at when people came to work, we did not see an impact, and the union did not decide to call an unlimited general strike then; rather, it called a weekend strike. We did not expect it to call a strike at that time.
We decided to use shift schedules instead of overlapping schedules. This is allowed under the collective agreement. Management reserves that right. Once again, we were not expecting the union to call an unlimited general strike. Why did we implement this schedule? We did so because in the week following the weekend strike we were no longer able to keep up with our operational needs. We talk about having blanks. We were short on staff, and to address that we implemented shift work, as we have explained many times. The difference between overlapping schedules and shift schedules is that the workers work seven hours a day instead of five hours and 20 minutes. This allows for more people to come work, which enables us to keep up with our operational needs.
We never expected the union to call an unlimited general strike, because at that point there were regular schedules. I do want to be clear, though: I will not say the union is happy about that. However, in exceptional circumstances we had to take exceptional measures to continue supporting the health and safety of Canadians and the economy in general, and we had to ensure that we could get the SMEs, workers and companies that rely on the Port of Montreal everything they need.
In your mind, you don’t see any possibility of progress without the special legislation, and you see this situation as the outcome not of three strike days, but of 28 to 30 months of fruitless negotiation. Is that right?
We have clearly reached an impasse. We cannot agree to the unions’ demands. We have done everything we can to find a way, after 30 months, 120 days, and with the help of four mediators, two of whom are among Canada’s finest, including Quebec’s best mediator, Robert Bellerose, and Canada’s best, Peter Simpson. Clearly, we are at an impasse.
Mr. Tessier, I understand that you wanted to change the schedules because of a drop in revenue that is a point of contention. However, isn’t the situation too tense to do that? Considering what led to the situation and the reactions on both sides, wouldn’t it have been wiser to maintain the status quo so as not to give the union a reason to intensify its pressure tactics, which led, if I understand correctly, to a weekend strike and now to a general strike?
Just to make sure we’re all on the same page, I want to make it clear that we didn’t change the schedules because of declining revenues. We took away compensation for hours not worked because of the drop in volume that caused a drop in revenue.
Again, thank you for the question. Here are the reasons we took action when we did: more than 30 months, 120 days and a strike that was deemed unreasonable last summer. In that context, we had lost the confidence of importers and exporters. It was therefore becoming urgent to act to ensure that we were protected. We are still nowhere near reaching an agreement today. We still have several demands. I said there were 25 to 30 items, but there are sub-items on top of that as well. When we made that decision, it was an informed decision to stop paying for hours not worked because the drop in volume was causing a drop in revenue.
As for the schedule, with the union launching a weekend strike, we were under pressure to move all the products Canadians need for their health and safety. We chose an option that is included in the collective agreement with the goal of ensuring that we are well placed to meet the needs of Canadians. I just wanted to give an overview of the situation.
I understand. I’d like to ask you for another clarification. The union representative told us that in terms of wages, his union is following the lead of every other port. You told us that the conditions for the longshore workers in Montreal were better than those at other ports. Which is it?
When it comes to better conditions than those at other ports, the union compared the pay increases to those in both Vancouver and Halifax, but at the table, it was those in Vancouver. We can’t compare the standard of living in Vancouver to the standard of living in Montreal. However, there is a key difference. The Port of Montreal is the only port in North America that offers a guaranteed income. No other port offers job security, and no employee in any other port is paid to stay home when there is no work. That is the major difference.
Honourable senators, we are now joined by the Honourable Filomena Tassi, P.C., M.P., Minister of Labour and the Honourable Omar Alghabra, P.C., M.P., Minister of Transport.
Ministers, welcome to the Senate. I would ask you to introduce your officials and to make your opening remarks of at most five minutes.
Hon. Filomena Tassi, P.C., M.P., Minister of Labour
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Madam Chair, honourable senators, I’d like to acknowledge I’m joining you today from the traditional territory of the Haudenosaunee and Anishnaabeg peoples covered with the Dish With One Spoon wampum agreement.
I would also like to acknowledge those who are joining me today: my friend and colleague the Honourable Omar Alghabra, Minister of Transport; Sandra Hassan, Deputy Minister, Labour Program; Michael Keenan, Deputy Minister, Transport Canada; Andrew Brown, Assistant Deputy Minister, Policy, Dispute Resolution and International Affairs; Peter Simpson, Director General, Federal Mediation and Conciliation Service; and Christian Dea, Director General, Transportation and Economic Analysis and Chief Economist.
As senators know, there has been a work stoppage at the Port of Montreal since April 13. What began as a partial strike recently turned into an unlimited general strike, effectively shutting down the port.
Over the course of that time, it has caused significant harm to the Canadian economy, harm that is only expected to worsen significantly in light of the recent escalation.
First and foremost, I’d like to make it clear that our government believes that the best place to reach an agreement is at the bargaining table. That being said, the reality is that we must act now to bring a resolution to this ongoing dispute and prevent further harm.
The parties have demonstrated their inability to reach an agreement in the over two and a half years during which the government has been supporting them to date. The federal government’s support has been vast and deep. We have provided federal mediators to support over 100 bargaining sessions. In February, I appointed two of the most senior mediators to assist in the process. They have worked tirelessly to help the parties reach a negotiated settlement. I want to thank them for their dedication and their remarkable hard work.
Direct and worsening impacts of this disruption are now being observed for essential goods such as food and medical products. For example, millions of dollars in fresh produce is spoiling without clear rerouting options, leading to higher costs and greater food insecurity. Farmers cannot obtain key fertilizers for spring planting, which could result in a weak harvest this fall.
Then there are the drug manufacturers in Montreal who rely on ingredients that arrive through the port in temperature-controlled containers. It is difficult to change these supply routes due to the specialized equipment requirements for temperature control.
This is because Canada requires a reliable trade infrastructure in order to stay competitive in the manufacturing jurisdiction.
Back-to-work legislation is not a decision that the government takes lightly. I come from a community, Hamilton, that is steeped in labour traditions. The values of organized labour are the values that I grew up with. I respect and admire the foundational contributions the labour movement has made toward making a better, safer, more prosperous and inclusive Canada. That’s why back-to-work legislation is not a decision that we take lightly. It is our least favourite option, and we take it with a heavy heart.
If passed, Bill C-29 would end the ongoing work stoppage at the Port of Montreal and provide the parties with a neutral mediation-arbitration process to resolve the matters in dispute. It would also establish a new collective agreement, thereby providing much-needed stability at the port.
Bill C-29 is a last resort, and we had hoped it would not come to this, but unfortunately, it is absolutely necessary to end the work stoppage at the Port of Montreal before the situation becomes dire. We have provided ongoing, intensive support and encouragement to the MEA and CUPE Local 375 for over two and a half years. Yet, they remain unable to reach a new negotiated collective agreement.
If this work stoppage continues, the damage we are seeing in our national and regional economies, as well as our reputation as a reliable trading partner in the international community, will only continue to worsen.
Thank you, and now we will be happy to respond to questions.
Welcome, minister. Minister, I have three questions, and our chair does an absolutely fantastic job of making sure that we don’t exceed our time, so I’m hoping you will help me in getting my three questions in.
Minister, in your remarks in the House, you said:
A lot has been said over the last couple of days about taking sides. I can assure colleagues that our government is not taking sides.
But it is Canadian workers and businesses who are being impacted by this shutdown, and one would have thought, minister, that you would absolutely take their side.
Your officials told senators earlier this week that at least 10% of traffic through the Port of Montreal has been lost, perhaps permanently. The U.S. East Coast ports on March 10 — you received a letter. Numerous businesses and industry associations wrote to you and Minister Alghabra noting how bad a labour disruption would be.
In light of this, minister, did you ever consider that your absolute priority should have been to prevent this strike from happening, a strike that is now causing such devastation to our entire economy? And did it occur to you that protecting the Canadian economy was your most important job and that you were not just a bystander in this?
Thank you, Senator Plett, for that important question. I will reaffirm that it’s not about taking sides. This is about providing the parties with an opportunity to continue negotiations. We know that the best agreements are made at the table, and so we have provided extensive support in that regard.
There were two mediators appointed. That started on October 11, 2018. Those mediators have been there every step of the way. It started with the conciliation officer and then transitioned to the mediators.
In addition, in February, I took the extra step of appointing two of our senior mediators — one joins us today, Peter Simpson — in order to assist the parties in reaching an agreement. One of the reasons we’re here today is because of the economic impact this is having, and so that brings us to the reason why this legislation has been brought forward.
I’m trying to honour your right to ask two more questions, so I’ll end there.
Actually, minister, in your answer you already answered at least half of my second question.
Let me just ask you, in reference to the mediation that you said has been ongoing — I had two and a half years, and I think you maybe said three years — why did none of these efforts produce satisfactory results? When, minister, were you first made aware that these discussions were having serious difficulties?
I would say in response that we’ve been monitoring this situation every step of the way. Since I’ve been appointed as Minister of Labour, I have been monitoring the case at the port.
The mediators are there to support negotiations and have been there. It is, in fact, two and a half years, and over 100 mediated sessions. I do have Peter Simpson here with me today who can talk about the details of that mediation process. He was one of the two senior-level mediators that were appointed, but we really wanted to give the parties the support they needed in order for them to reach an agreement at the table, and that’s what we did.
Let me ask my next question, and then if I have not gone over my 10 minutes, I would be happy for your official to talk a little bit about that mediation, if there is any time.
This strike is truly having terrible repercussions, and you are well aware of that. I believe they could have been avoided had the government intervened earlier.
As I have asked the two previous witnesses, the Prime Minister represents a riding in Montreal. In my opinion, he could have and should have been involved.
Minister, at what point did you first brief the Prime Minister on this file? On how many occasions over the past year have you briefed him directly? What did the Prime Minister say or do following these briefings?
Thanks, senator, for that question. I want to say that with respect to the engagement that we have had, the mediators have been at the table the entire time, and I have been in communication with the mediators just to determine what was happening at the table in terms of support through my department: Do you need more support? How are the negotiations going?
In addition to the mediators, we have also reached out to the parties. We had a number of conversations with the parties, driving home this message: We know the best deals are made at the table. We want to provide you with the support you need, but please come to an agreement.
That message was reaffirmed by me on the occasions when I spoke with both parties. It was also reaffirmed by other cabinet ministers who made those calls, including the Minister of Transport, who is joining us today.
It’s important to recognize that we have been there every step of the way in terms of the mediators being present at the table but also communicating to the parties. In fact, when I appointed the two senior-level mediators, I wrote to both parties outlining that I was appointing the mediators, but reiterated the need for the parties to come to an agreement at the table and that we wanted to support them every step of the way in order to do that.
Of course, that didn’t really touch on my questions. Contrary to the other witnesses, who prefaced their answers by saying, “We are not political,” you at least didn’t do that, nonetheless giving me a bit of a political answer on the last one.
I appreciate the minister, and I’m sure the chair was trying to tell me my time was up.
Peter Simpson, Director General, Federal Mediation and Conciliation Service, Employment and Social Development Canada
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Thank you, senator, for the question, and thank you, minister. I’d like to say, in general terms, that we worked throughout multiple-day meetings. We would meet for a week, for four days, and we would work around the clock as much as people could stand. They were intensive talks. There were talks that were exploratory and there were talks that were without prejudice. We tried a number of different strategies in an attempt to effect resolution. Even earlier this week we met with the parties but we were unable to bridge the gap.
I know that the Prime Minister did have conversations with Premier Legault and other stakeholders. Of course, I can’t reveal cabinet discussions, so I don’t want to talk about that. I know the Prime Minister has been engaged with stakeholders, yes.
Thank you very much, Senator Plett. I appreciate that.
Minister Tassi, my focus has been on whether or not the bill you have presented meets the constitutional test, the Charter rights test. For me, a lot of the description of what has gone on in the past between the parties, back and forth, how long, is of no import. It is to the parties. It is to Montreal. It is not in terms of the Senate’s decision making when I hold the belief that this bill may well be found to be unconstitutional.
I have read your statements in terms of the rationale for the bill. I have read the Charter Statement that the Government Representative filed in the Senate earlier today. I have read numerous court decisions. You’ll be aware of Saskatchewan Federation of Labour v. Saskatchewan. We could talk about the CUPW and postal workers legislation under former Prime Minister Harper’s government.
The tests have been reaffirmed over and over again. It is about whether or not this is significant undue interference. It is about health and safety and danger to the public. It is about public interest. It’s not about the broader economy and economic impacts. That is part of what factors into how the parties resolve themselves, but it is not part of the constitutional test. I have to say that most of your answers in the media and/or the House of Commons referred to and relied on that, with a passing reference to the pandemic exacerbating conditions and the need for certain goods.
The CIRB decision last summer, during the pandemic, made it clear that the conditions do not exist and that the evidence is not supportive of essential services rulings in the Port of Montreal. They made it clear that there are alternate ports where these goods can be dropped off — yes, some American and some Canadian — the goods can still make it through, that the union has lived up to requirements around the movement of grains and cereals, and that they have offered to move all things to Newfoundland because of previous decisions.
I don’t understand why, with all the court and tribunal precedents, that three days into a strike we now have justification for taking away Charter freedom of association rights of the unionized workers in this situation. Would you please speak to this core issue and why you are of the belief that this will survive a court challenge?
Thanks very much for that important question. The factors we balanced in this are as follows: the history of collective bargaining in this round of negotiations, respect for the right to strike, the impact of the work stoppage, and the prospect of a negotiated settlement.
There are two parts to your question. The first has to do with the essential service piece and the CIRB ruling. I’m not going to speak to the CIRB ruling and what it would look like today. What I would say is that I believe — and I have said this in the House — the cumulative effect of the COVID-19 pandemic has exacerbated this situation. When we look at COVID-19, we are in exceptional circumstances, as we were in June 2020, when the CIRB put the ruling out. The accumulation of additional damage to the supply chains, together with the demand for supplies that deal with the health and safety of Canadians, has put us in a different situation. The impacts are graver. It’s important that we hear from Transport with respect to what exactly that looks like. That is part of the consideration as we have moved forward.
With respect to the constitutional piece, I’m happy that you have the information. I won’t go through that in terms of this being legislation that provides for the mediation process and that they have 48 hours to choose the arbitrator. What we have implemented in the bill is fair. The parties can still come to a mediated settlement prior to arbitration, and they have up to 21 days to do that. Giving them this opportunity is very important.
Directly to the constitutional piece, I would say a few things. First, the previous strike — the two work stoppages that accumulated 15 days of full strike — has given us insight into what this looks like. We come to this position today after five work disruptions, and then the latest one. The full work stoppage started on Monday, but April 13 is when it started. That impact, which Senator Plett referenced, represents $600 million in damage to the economy. The estimated numbers we have now are $40 million to $100 million per week that can be lost. That’s the first point.
The second point is in terms of the impact across the country to Canadians. I have a letter here from ministers from Ontario and Quebec. In addition to the 19,000 direct and indirect jobs that are taking place at the port, they provided numbers indicating that close to 250,000 employees in Montreal and 273,000 workers in Ontario could potentially be impacted by this. So it’s not only looking at the workers. The 1,100 workers at the port are very important. We appreciate the right that they have to strike, but the accumulated effect — the five work actions that have been taken — provide us with information on how damaging this can be to Canadians.
With respect to the health and safety of Canadians, which I have raised, it’s important to hear from the officials from Transport as to what is in those containers and why it’s not practical for the union to be able to do what they have said that they would do — which I think shows great goodwill on the union’s part — which is to take the containers, unload them and get them moving. There are complications there. Although that is great will and great spirit, the practicality of making that happen is complex, complicated, impractical and not doable. That’s for a number of reasons.
Minister, thank you. I’ll try and save the time that Senator Plett gave for you to turn it to Transport, but my questions are for you.
I did have a good conversation with the head of the Port Authority and the head of the Maritime Employers Association, who describe the logistics, so I’m aware of some of that information.
You talk about how long the negotiations and mediation and everything has gone on. We have heard this from a number of people answering before us. I want to stress this point and then I have another question. All of that also includes almost two years of the tribunal decision-making process and adjudication of the issue of essential services, in which there were 25-plus witnesses and interveners, 100-plus pieces of evidence, very extensive, and looked at all of the health and safety, the essential arguments that you have made, and they rejected it within three days of the strike. Now you’re saying from the 13th, fine. You have determined that you have the constitutional grounds to override the freedom of association. I’m not convinced that you do.
One alternative way of approaching this as well, with respect to the most pressing thing on people’s mind when we hear you speak, is the necessary goods and support services related to pandemic support, pandemic health and safety for Canadians.
In Bill C-14 — which is in Finance Committee right now and we’ll be dealing with in the Senate next week and most likely passing next week — there is a provision for the Minister of Health to use regulation-making authorities to ensure that there is no shortage of goods or materials that are required that could endanger the health and safety of Canadians, not just pandemic related but more broadly.
What consideration was given to using that provision as opposed to stepping in and ending Charter rights for these organized workers?
Senator, what I would say in response to that is, first and foremost, the cumulative effect that the COVID-19 pandemic has had on Canadians puts us in a different position today. As this pandemic has evolved and things have changed, we see the impact that has had on supply chains and workers across this country, and the effect of that has put us in a very different situation today than we were in when the CIRB made their rulings. I would argue that today, the situation is different because of the impact of COVID-19 from when the CIRB made the ruling in June 2020 to where we are today in April of 2021. I think that has to be given serious consideration.
I will say to you that I have letters from stakeholders that are actually acknowledging the impact that this is having with respect to the areas that they represent. For example, in agriculture, the P.E.I. Federation of Agriculture is saying how important it is that the government do something because farmers are relying on the seed and the fertilizer, and they are ringing the alarm bells because if they can’t get that crop planted, there is going to be a huge problem.
I have correspondence from medical suppliers that actually say —
Thank you to both ministers for being with us. I have questions for each of you. I will start with Minister Tassi.
Thank you for mentioning the Prince Edward Island Federation of Agriculture. I’m very familiar with that as I’m a Prince Edward Island senator and chair of the Senate Agriculture and Forestry Committee. Those issues are of huge concern to me personally.
As minister responsible for labour, is the rationale for the back-to-work legislation specific to the Port of Montreal or is it a precedent to indicate that this government will intervene with back-to-work legislation if there are labour disruptions in the ports of Saint John, Belledune or Halifax?
Thank you for that important question, Senator Griffin. This is absolutely not a precedent. This is a situation that is unique in terms of the COVID-19 pandemic; in terms of the history with respect to the process over two and a half years; with respect to both parties taking measures in hopes of putting pressure, which is their legal right, which we absolutely support, but to no avail. We are in the midst of a pandemic with an economy that is trying to recover, so each situation is looked at closely and carefully.
As I have said, this is a decision that is a difficult decision to make in terms of recognizing that it’s the least favoured option, but a necessary option. But it is not precedent-setting with respect to future situations at the port.
Thank you. Under section 87.7(1) of the Canada Labour Code, services to grain vessels must continue despite a labour disruption. Do you view that the act should be amended to add any other critically essential goods, such as petroleum products, so that they would be protected from a labour disruption?
Thank you for that question, senator. I would have to give that more thought. What I appreciate is the essential service provision that is in the code with respect to bringing those matters to the CIRB. The idea there, of course, is to ensure that any essential goods would be permitted to be excused from action and that there would be a commitment.
I would have to give that question a little more thought. If you had something that you would want me to consider, I would be pleased to accept that and read and review it carefully.
My next question is for the Minister of Transport. Again, wearing my Maritime hat or Atlantic hat, I’m here to ask you that with the recent return of Canadian Pacific to Saint John and the established CN line to Halifax, the Maritimes finally has competitive rail service — to the benefit of shippers — to two ice-free ports.
Minister, is there an opportunity here to invest in the Maritimes to increase the economic security of Canada, and will the government invest in increasing the capacity of these two ports to accept more containers?
Hon. Omar Alghabra, P.C., M.P., Minister of Transport
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Thank you, senator, for that question. Good afternoon senators. Thank you very much for inviting me to be with you here and for taking the time to consider this urgent emergency legislation.
To answer your question, Senator Griffin, our government, from day one, has focused on expanding our trade access, and supporting businesses and workers to export more, to find more markets and we’re currently the only G7 country that has a free trade agreement with all other G7 nations.
Part of our agenda has been to facilitate the expansion of trade corridors, including ports on the east or west coast. Absolutely, several investments have been made, and yes, there are opportunities for additional investments to be made because both the Port of Halifax and Port of Montreal, and other ports on the east coast are extremely important for our economy, workers and businesses.
I think the advantage of that, as you would know, is that any possible future disruptions to the Port of Montreal would mean that any containers that are diverted could be diverted to Canadian ports, as opposed to the U.S. eastern seaboard.
Does the government have any environmental concerns that by expanding the capacities of the ports of Montreal and Quebec City, it would increase marine traffic on the very narrow shipping channel of the St. Lawrence River?
Thanks again, senator. Rest assured that no expansion project at any of the ports will take place or takes place without a thorough environmental assessment. That will include the impact on climate and marine areas to ensure that if there are any disruptions — and usually there are disruptions — they will not exceed the tolerable limit. So yes, every project that is proposed has to go through a thorough environmental impact assessment.
I would like to thank both ministers for attending the Senate today. It’s important that we have access to you both to get more information about this important bill.
Minister Tassi, there has been much speculation about what the adoption of the law means for actions recently taken by the employer and union at the port. Your department has provided a brief statement, and the parliamentary secretary answered the question about this in the House yesterday. I am wondering if you could expand on this for us today.
I’m very happy to respond to this question. The bill states that the collective agreement between the parties that was in place in December 2018 comes back into force. That’s essentially what happened. The important thing to realize is that the parties did negotiate that agreement. They were the ones that set the terms of the agreement, and now what will happen is that everything will revert back and that agreement will be in full force and effect. Anything that the parties could do in the collective agreement, they will be able to do. Anything that they cannot do as a result of the collective agreement will be repealed. They can’t do that.
The example my parliamentary secretary gave was the question of the minimum weekly salary. The employer decided to change the pay and pay only for hours worked. Since this change wouldn’t have been permitted under the collective agreement, the employer will need to revert back. To answer the question, it will all depend on what the terms of the collective agreement that the parties had previously negotiated and agreed to allow, and those are the provisions that will prevail.
You may recall — you better than me, as a matter of fact — there are really two conditions that triggered the strike: The stopping by the employer of paying the guaranteed income, seven hours a day; and the second thing was the decision of the employer to change the working schedule. In answer to my questions earlier today, Mr. Tessier said he agrees that if the bill comes into effect tomorrow, he will, as per the collective agreement, make sure that they are paid the guaranteed salaries all the time and he will revert to the old working hours schedule, which I understand were the two prerequisite conditions of the union to immediately end its strike.
As a consequence of your bill, we received today from the representative of the employer a confirmation that the two requirements that were asked for by the union to go back and to resume work will be met. I don’t know if you were aware of that, but I think that the bill has brought something that, unfortunately, the negotiations at the table were not able to yield.
Senator, thank you. I wasn’t aware. I wasn’t watching. I was preparing for my own appearance today. I would say that I think it’s very good that you asked that question. I’m pleased with the response. I’m pleased to hear that.
The message that I continue to give the parties is that mediation is open to them. If they come to an agreement in the next 24 hours, then that agreement is going to stand. Even when mediation starts, whatever agreement they come to, we’re going to respect. I know that Peter Simpson is available as the mediator at any time. I know he carries his phone around on a regular basis. Whenever the parties reach out, he will be there at the table and the mediation service will assist in any way they can. It is important that I have the opportunity to reaffirm that message.
The bill does not really refer to the fees and costs for the mediation and arbitration. In the back-to-work legislation for Canada Post, it said the Crown will get a kind of claim against the parties for that. Is that going to be provided to the parties here free of charge, or is that going to be charged later back to both parties?
When we move to section 15, there are orphan words that refer to the final offers, the kind of baseball arbitration. That was removed by the House of Commons, the main section was removed, but these words are still found in other sections. Do you see any problem with these words still being there? Mr. Murray has suggested that perhaps we should amend the bill to remove these words.
Thank you, senator, for that important question. I will confirm that I have had a conversation with my deputy and have been very clear in terms of ensuring that the arbitrator mediator, who is either selected by both parties or appointed by me, has very clear instruction. I think the amendment made in the other place is very clear. The arbitrator/mediator will be given those instructions to ensure they have a full and complete understanding of the tools they have before them.
Deputy, I don’t know if you wanted to add anything to that.
The adjustment made in the House of Commons concerned a specific clause to eliminate a form of arbitration. The fact that it is referenced in section 15 can definitely be taken into account directly when the mediator-arbitrator is appointed. They can be informed that Parliament discussed and indicated the form of arbitration expected and that, consequently, the arbitrator is expected to use this form of arbitration, which is the only one referenced in the bill that, if passed, will become law.
If I understand you correctly, the powers of the mediator are defined in another clause that clearly states that the only power is to mediate in the absence of an agreement to go into arbitration. Arbitration is carried out based on the issues at stake, and each party can present its position, after which the arbitrator can render a decision to favour either party’s position, a position in between the two, or any other position he or she considers to be appropriate. This is clearly stated in the wording of the legislation, and the words that remain in clause 15 do not concern the power. They are just oversights. When we read the entire bill, there is no doubt as to the intent of Parliament.
I will continue in the same vein, because it is an interesting question as it relates to the concept of latest final offer. That was taken out, and Mr. Murray said he was glad it was. I know that unions are usually not big fans of the concept of latest final offer. On the other hand, Mr. Murray also said very clearly that the union intends to challenge the bill’s constitutionality as soon as it is passed.
Then, of course, we have to determine whether the bill is constitutional and whether it violates the right to collective bargaining. Section 1 of the Canadian Charter of Rights and Freedoms mentions the idea of limits and their justification in a free and democratic society, and the criteria include the concept of minimal impairment. Professors Drouin and Trudeau stated in the McGill Law Journal in 2015 that the final-offer arbitration model, which requires an arbitrator to select the latest offer made by either the union side or the management side, is less of an impairment to the collective bargaining process than regular dispute arbitration.
In other words, the latest final offer process is more likely to meet the Charter test than simple dispute arbitration. This worries me, given the union president’s stated intent to challenge the bill’s constitutionality.
Can you tell me whether, before the reference to this concept was removed in the House of Commons, there was any consideration of how it would affect the bill with respect to section 1 of the Charter? Could you also confirm that it was the unions that asked for this phrase to be removed? If they were the ones that asked for it to be removed, it would not be wise for them to invoke the concept of minimal impairment in challenging the constitutionality of the bill.
With respect to the way the bill was drafted, the final-offer provision did relate to an issue-by-issue basis. That means that the arbitrator/mediator would have the right to use both tools in order to determine the decisions that were made at the end of the day. So it wasn’t a final offer in terms of the whole negotiation being in one document, that the offer is submitted and that is the choice of the mediator/arbitrator. It was in the original legislation that it was an issue-by-issue basis.
Second, in this process, we absolutely have confidence and faith in the mediator/arbitrator. In fact, as you know, the legislation is such that both parties have the opportunity to submit names within 48 hours. It’s my hope that both parties are going to come to a consensus as to who will be selected as mediator/arbitrator. That is an ideal situation, and I’m going to encourage the parties to do that.
We have faith that the person who is going to be selected, whether it’s by the two parties or appointed by me because the two parties cannot agree on a name, will be a mediator/arbitrator who has the tools, skills and experience so they can conduct a mediation/arbitration process where they will use the tool when they need to.
In terms of the actual bill itself now, yes, it was amended by the other place. Between my comments and those of my deputy, we are giving the assurances that the mediator/arbitrator will be given very clear instructions with respect to the tools that are available to them and that the final offer is not a tool that is available.
With respect to the constitutionality of the final offer, I would have to study this in further detail in order to determine any constitutional argument. However, I would like clarification from you, senator, on the following: Are you saying that in terms of the way it is currently presented in the bill, or are you presenting that when it’s a final offer, which is every item of the negotiation process that has taken place?
The authors are saying that, when used, the concept of final offer is less of an impairment to the right to collective bargaining than dispute arbitration.
According to the test of minimal impairment, we need to try to find the process that will impair the right the least. According to these authors, the final-offer model impairs the right to collective bargaining the least. This was stated by law professors in 2015. I don’t think there have been any rulings on it yet, but I think it’s worth looking at this impact to forestall future arguments in challenges to the constitutionality of the bill.
My second question has to do with section 87.7 of the Canada Labour Code, which includes grains as part of essential services. The Canada Labour Code mentions the transportation of grains, and this cannot be removed. We can see what is considered an essential service in situations that do not present an immediate and serious danger to the safety or health of the public. The concept of immediate and serious danger appears to be the criterion used.
I have to admit that I have been a senator for a fair number of years, and this is not the first back-to-work bill that I have had to vote on. In every case, I always hear the same argument. First, it always involves transportation, whether it is air, rail or postal, and this time, it is about transportation at a port. It always comes down to the argument that these services are essential and crucial, and that we must therefore act and introduce special legislation.
Have you considered amending the Canada Labour Code to broaden the concept of essential services so that this concept is less restrictive and makes it possible for a port as important as the Port of Montreal, for example, to be designated as an essential service? Alternatively, have you considered establishing a list of things that would be considered essential services in the area of transportation?
In short, we are putting out a fire that was just created. It seems to me that amending the Canada Labour Code could resolve this type of difficulty. It would be similar to what was done in the 1980s when the Canadian Wheat Board Act was amended following a study carried out by Andrew Sims at the request of the Minister of Labour, if memory serves.
Thank you, senator, for that very thoughtful question.
I would say, right now, the way this works, as you know, is that these decisions go to the Canada Industrial Relations Board, or the CIRB. I don’t have the authority to make that decision. It goes to the CIRB, and they consider all the evidence and make a decision in this regard.
In terms of my time as Minister of Labour, this issue with respect to the essential service piece is not one for which I have received a lot of requests in terms of, “Let’s take a look at this.” That doesn’t mean that I’m not willing. Listen, if there are ways to improve what we’re doing, I’m always open to entertaining suggestions and comments in order for us to take a look and see if there are ways we can do things better.
There’s a bit of a complication in the practical piece here. We just have to keep that in mind. I referenced it a bit earlier, but we have to recognize that these containers are coming in on these ships, and they’re loaded with all kinds of containers. It becomes cumbersome when some have essential services and some don’t. How do you prioritize? How do you ensure that the essential services can be docked and moved and the other —
Minister, I have three questions; I’m hoping I’ll have time to ask all three.
Minister, in your remarks in the House, you stated that, after the Canada Industrial Relations Board decision last year that work stoppages could proceed, the union commenced a partial strike on July 2, 2020. Four work stoppages followed throughout the summer of 2020, each one with an increasing duration and impact.
We know the impact that these work stoppages had on the Port of Montreal and on all businesses and workers who depend on traffic through that port. The losses were at least $600 million. Some traffic through the port has now gone to the U.S. East Coast ports and, according to your officials, may never return.
Should your government not, at that point, have taken more decisive steps to ensure that what we are experiencing today would not happen again? Why did you not do that?
Thank you, senator, for that question. It is absolutely a part of the consideration in deciding to move forward with this legislation. It’s the economic harm, together with the potential harm to Canadians’ health and safety. Those are considered.
It’s really important to recognize — and I’m happy that Peter Simpson is here with us today — that the Federal Mediation and Conciliation Service has been involved since October 11, 2018. We began with a conciliation officer and then we had mediators at the table throughout that whole time, so the support has been there. Two mediators were appointed. In February, I appointed two additional senior-level mediators — Peter Simpson was one of them — because I really wanted to provide the parties with the support so the deal could be made at the table.
In addition to that, there have been phone calls and conversations with the parties, strongly encouraging them to reach a deal. I wrote a letter when I appointed the two senior mediators.
We must have respect for the collective bargaining process. We know the best deals are made at the table. Our focus as a government was providing the parties with the supports so they could come to that deal at the table.
I won’t take any further time, senator, because I know you have two more questions.
Thank you, minister, for giving me the opportunity to ask both questions. Minister, you have remarked that the Port of Montreal is the second-largest container port in Canada; that it handles 1.6 million 20-foot equivalent units and 35 million tonnes of cargo, representing approximately $40 billion in goods; that the work stoppage is causing significant harm to Canada’s economy, further disrupting supply chains that have already struggled through the COVID-19 crisis. You have said that every day the strike continues, the more likely it is that some of these businesses will simply not return.
Your Charter analysis repeats many of these assertions in justifying the current bill.
How were all those facts not already the case during the work stoppages a year ago? Why has it taken this long to act?
Senator, again, I would repeat, we acted from the beginning. We have been on this file since 2018, and there has been a number of conversations, but also the support of the Federal Mediation and Conciliation Service, who are there 24-7. There have been over 100 mediated sessions, but we respect the collective bargaining process. We wanted the parties to reach an agreement at the table. That is why we provided those supports along the way. Respect for that process ensures that that unfolds.
As you have said — and I’m happy you shared those numbers because they’re very important — there have been five job actions that have taken place. If anything, they have demonstrated the importance and the necessity for us to move forward. The $600 million is an example of that. That was clearly demonstrated to us.
The last point I would make on this is that a lot of people are saying that the strike happened Monday, and then the notice went on the Order Paper on Sunday. I would say this: this strike actually began on April 13. It wasn’t a full strike, but it was a strike. The results of that strike were being felt at the port. It was the part-time, no overtime, no weekends and the training piece, which is less critical, but those are the two things. We’re demonstrating the economic harm that this was causing, and that, combined with everything else, is the reason we’ve moved forward.
Thank you, minister. During the briefing provided by your department to senators earlier this week, your officials noted that the difference between the parties amounted to more than just money. In fact, they said money was a less important issue than some of the other problems, including job security and work schedules. CUPE has said the same thing — that money is not the principal issue. The problems are multifaceted and, in fact, have proved to be intractable.
Given that, did you at any point consider enhanced interventions to resolve this dispute? Can you share with us what additional measures you considered but did not employ over the past year?
The focus for us, completely, was giving the parties the support they needed to come to a negotiated agreement at the table. We have said over and over again that the best deals are made at the table, and we want the parties to come to that agreement. We have respect for the negotiation process. Both parties exercised their rights during that process, which put on extra pressure but still to no resolve.
Specifically, in answer to your question, the Federal Mediation and Conciliation Service was there throughout. There were conversations that were ongoing from ministers to the parties saying it is critical that you come to an agreement. We know of the economic harm. I know that Minister Alghabra would absolutely share the impact and economic harm, which is a topic you are raising. I want to highlight that it’s one of the reasons for taking the action we have. We’ve done that because this matter needs to be resolved.
My first question was about extending the collective agreement, and it has already been answered. My second question was about essential goods and has also been answered.
I do have another question. What is apparent from today’s sitting is that the union representatives clearly said the strike had been called in response to what they perceived as provocation on the part of the employers. They also complained at least twice in their presentation this afternoon that the real decision makers were not at the bargaining table and that they were not speaking with the right people.
Furthermore, the representatives of the Maritime Employers Association told us that if the bill is passed, they will give the union what it is asking for. Therefore, given your department’s considerable involvement in this file since 2018, what is its analysis of the governance structure of the Port of Montreal? Is there an element in these difficult negotiations that have been going on for years that concerns the specific governance structure of the Port of Montreal? I would also like to hear the Minister of Transport answer the question once the Minister of Labour has responded. Thank you.
Senator Dupuis, I’m going to turn it over to my deputy minister to respond. Following that, I think it’s also important that the Minister of Transport, as well as officials, speak a bit to the products and goods, because the question keeps coming up. I’m concerned because the information isn’t being shared, and I think it’s valuable information that each of you should have as you make your decision moving forward.
Sandra, if you could start with respect to the governance piece.
Thank you for the question. I also listened to the presentations made by representatives of the union and the Maritime Employers Association. As you heard this afternoon, the union represents its unionized members, and the MEA is an association of employers, which is allowed under the code.
Because of the governance structure in place, there is not a single employer at the table, but rather an association of employers that gets directions from the different employers. Martin Tessier is their spokesperson, just as Michel Murray speaks for the union.
Our mediation team spoke with representatives of both the union and the MEA. There is a gap between the two parties’ positions. Whether that gap is a result of each item discussed at the table or a governance structure that makes things complicated, I can’t say. What I can say, however, is that we have worked incredibly hard with the representatives of both parties, the employees and the employers.
Maybe I can step in now. Thank you very much, senator, for your question.
Let me first talk about governance structure. By the way, the way the employer’s association is set up in the Port of Montreal is similar to what we have on the B.C. coast, the BC Maritime Employers Association, where we have two ports: Prince Rupert and Vancouver.
Having said that, we are currently in the process of reviewing the port structure. There is a proposal that we’re studying to modernize how ports are governed, and we’re certainly always looking for ways to enhance the governance structure.
As far as the question of the impact and the products that will be affected, it’s really important to go through some of the items, and I’m happy to defer to my officials to provide more detail.
Let me say this: The national transportation network is fundamental not only to our economy, but also to our security and the well-being of Canadians. Currently — and I know Minister Tassi has done a great job explaining this — the complicating factors are that COVID has taken out any slack that may have existed in the system. There has been a lot of stress added because of disruptions to our transportation and our economy — on the supply side and on the demand side. We are really seeing how stressed the network is and the impact that any additional disruption may have not only in the region, but on the broader network.
Some of the products that will be impacted — and have been impacted, frankly, over the last two and a half years because of the increased uncertainty over there and because of the disruptions that happened last year and the ongoing disruptions that started on April 13 — are medical equipment and pharmaceutical ingredients, including some ingredients that form a part of COVID-related medications and PPE. Some products that are exported are pork, agricultural products and forestry products. Other products that are imported include fertilizers for our farmers, automotive products and items for the construction industry. So this is already having an impact on fundamental aspects of our economy and the well-being of Canadians.
As Minister Tassi has illustrated, we have been very engaged and proactive on this. I was appointed as Minister of Transport this January. My predecessor, Minister Garneau, has been heavily engaged. Since January, I’ve made three, maybe four calls to the employer’s association encouraging them to find a negotiated settlement because that will always be the most sustainable and reliable form of agreement.
I’ve personally been briefed by Minister Tassi or the mediator on a regular basis. We have been keeping a close eye on this. We have always wanted the parties to reach their own agreement. That is, of course, the ideal outcome.
During the summer strike last year — those 19 days or so of disruption — we saw what kind of impact it had then, and we could easily extrapolate what further impact it will have on our economy and well-being.
Minister Tassi made the difficult but necessary decision, which is what we believe Canadians expected of us, and we hope, first, that the parties can come together even before to reach an agreement, but that there is a path moving forward through mediation.
I want to come back to the minister’s answer to a question asked by Senator Carignan. Like Senator Carignan, I am interested in the issue of essential services. You were cut off before you could finish your answer.
Saying that some services, of a medical nature, for instance, should be declared essential is not necessarily tantamount to bringing in specific exceptions to the longshoremen’s right to strike. Given how complex it is to sort out containers, as you noted, is the government looking at changing the Canada Labour Code so that the Port of Montreal as a whole is considered an essential service?
Thank you very much, senator, for that question. To be clear, now under the code there is the opportunity for either party to bring this matter before the CIRB, the Canadian Industrial Relations Board. They make the decision as to whether something is an essential service or not and so that right is there. It exists. There is a process. They can make a decision. I’m trying to point out that I think the decision made in June of 2020 was made in June of 2020. Now, with the exasperating circumstances that have occurred as a result of COVID-19, I’m not sure what decision the CIRB would have made. But there is definitely more evidence to be considered with respect to that decision.
I would like Deputy Keenan to talk about some of the supplies that are in containers now that are not being delivered, because I think that is a very important point.
Let me be more specific. In your opinion, would it be advisable to change the definition of an essential service? Whenever you are faced with this idea of imminent danger, is that something you consider? There is obviously plenty of evidence.
That is a decision, of course, for the CIRB. That’s an independent body. I don’t have input into the terms of their decisions. The parties have the right to bring that case before the CIRB and I have confidence in the rulings that the CIRB makes, and the parties can bring forward all the evidence that they have before them to determine what services are essential and therefore have to be maintained.
The minister wanted to ask her official to add something about the goods that are stuck at the port.
Michael Keenan, Deputy Minister, Transport Canada
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Thank you. I will be glad to give some more information regarding the goods that are stuck at the port.
In the container system in Montreal, with large throughput and thousands of containers on the dock now, there are 12 ships that are backed up, 3 of them at anchor, a couple at berth and some in the river coming. On each of those ships there are thousands of containers.
There is a classification of critical containers that the Canada Border Services Agency identifies as ones that have, for example, material that is important for the health and safety and medical care of Canadians: pharmaceutical products, medications, medical supplies, PPE, medical equipment, disinfectants and soaps, et cetera.
There are about 130 of those critical containers that are either on the dock or stuck on these ships and the latest information we have is about 15 on the dock and over 100 on the ships. Even the ones on the dock, which in theory could be moved, are currently stuck and the ones on the ship are absolutely stuck. There is no way to get them off because of the blockage in the operation of the port.
Of those 130 containers with critical medical and health supplies, there are around 30 that have medical and health supplies that relate to the COVID response: medical devices that could be used in the treatment of patients with COVID, personal protection equipment and disinfectants.
We don’t think there are any vaccines in there because the vaccines tend to arrive by air transport, but there is a range of other products that are important for Canada’s response to COVID that are essentially trapped. In theory, it’s possible to get a few of them off the dock, but it is absolutely impossible to get them off the ships that are stuck and can’t even get to the port because of the labour stoppage.
I have another question for the Minister of Labour. The union told us that what triggered this general strike, which, as you just said, is keeping important containers trapped in the port, was the employer’s decision to unilaterally change certain working conditions, including imposing longer hours.
You mentioned several times that you are following the dispute very closely and that the government has been involved every step of the way. Did you know that this decision was coming? Obviously, I know that management does not have to consult you, but were you informed and did you make your position known in that regard, or were you afraid of stirring up a hornet’s nest?
Thanks, senator, for that question. When the parties are going to take action, they give me 72 hours’ notice of the action they are going to take. It doesn’t mean they are actually going to take that action. It gives them the right to take the action if they so choose to take it, but they have to give me the 72 hours’ notice before they can actually take that action.
It’s really important to point out here that I don’t enter into any part of the negotiations. That’s between the parties. It’s not my place to go to the table and start negotiating with the parties. I cannot do that.
My job is to put in the supports the federal government can put in through the mediation service, which, as I have said a number of times — and I’m not just saying it because Peter is here — has done an absolutely remarkable job. Phones are on 24-7 there, day in and day out. That’s the role, and then to communicate to the parties — not getting into what issues are there but to say to the parties we want them to come to an agreement and to impress upon them the importance of coming to the agreement. I can’t tell you how many times that I have said we know the collective bargaining process is so important and we want to uphold that, so we are asking you to please come to an agreement because we believe in the collective bargaining process. We know it’s not easy. We know it’s hard work. But two things are required: flexibility and a desire to reach an agreement.
I had assurances from both sides that they knew that and they were willing to continue to negotiate and dialogue, but it’s not my place to enter on that table. However, in specifically answering your questions, we do get the 72 hours’ notice with respect to actions that each side will have the right to take.
In this particular case, because it is one case where things took a turn for the worse, you got the information from the management side. I appreciate that you can’t step in, but mediation is still an option.
Did you take any measures to try to bring the parties together after the employer’s announcement a few weeks ago that the working conditions would be unilaterally changed?
It’s really important to recognize that each side has rights. That’s a part of the collective bargaining process. Each party can make a decision as to what rights they are going to choose to exercise, or not. So those rights are available —
There have been discussions surrounding the number of vessels that have been rerouted and whether they are being rerouted to American ports or alternative Canadian ports. I am wondering if you can give us numbers on how many ships are rerouting to U.S. versus alternate Canadian ports.
I’ll ask my deputy to give specific numbers, but before I ask him to comment, I want to stress that we know that’s happening. In fact, it started happening awhile back before the strike occurred.
Because of the current uncertainty and the labour disruption, we know that several shippers have been choosing other ports. Some of them have been going to Halifax, but Halifax is a smaller port. Many have been going to the U.S. The fear we have is that if this continues, we may never get this business back.
But to give you specifics, I’ll ask Mr. Keenan to add some numbers.
Picking up on the situation the minister described, because the strike action and the uncertainty was building for a period, and there was the strike last August, there were a lot of diversions around that. By recent estimates, before the last round of labour actions by both sides, the renewed uncertainty resulted in about 10% of the volume of the Port of Montreal being diverted to other ports, principally Halifax, Newark and New York.
Those were pre-emptive diversions, but since matters have escalated, the shippers have been trying to find solutions. Quite frankly, they are kind of stuck. That is why, even as the strike goes on, there are ships are that are on their way to Montreal; they have no place else to go.
This goes back to a point the minister mentioned at the beginning, which is the impact of the work stoppage. Montreal is the second-largest container port in Canada. In normal conditions, it moves $275 million of goods through its docks every day. In normal conditions, you would see the ships going elsewhere. Now they are stuck because the global container freight supply chain and logistic system is absolutely maxed out because of the COVID disruptions.
There has already been some significant loss. We anticipate that the longer the strike happens, there will be more permanent diversions. Right now, we are seeing a lot of containers backing up in the system.
Last August, there was a big shift, and a lot of the ships actually diverted to Halifax and unloaded their containers. Then they discovered that because of the stresses in the supply chain and in the freight networks in Canada — which were consistent with those of other countries — they had a hard time getting the boxes back to where they were supposed to go. It wasn’t until sometime in October or even November that some of the containers disrupted by the action in August actually got to where they were supposed to be.
There has been some significant diversion. We think some part of that — how much is difficult to say, exactly — is permanent. Right now, you’re seeing a massive backup of containers.
I think there would be an agreement that if we look at the number of times legislation has been passed to legislate people back to work, a lot of the time, they have surrounded the movement of goods deemed to be essential. I think of Canada Post and Air Canada at one point, just since I’ve been here.
The reality, though, is that this is a stopgap because this could happen at any one of the other ports at any moment. We saw a similar response with trucking in British Columbia a number of years ago.
A 2015 decision of the Supreme Court in relation to a Saskatchewan decision that talked about the constitutional benediction to the right to strike. I refer to that because it focused on — and I would argue the court looked at — the need for an alternative mechanism to resolve a bargaining impasse. I would argue that the government today, as in the past, has probably not taken this on soon enough to ensure it doesn’t continue to happen and has put in place an alternative mechanism other than legislating these workers back each and every time it happens.
What do you see as an alternative mechanism to resolve bargaining impasses going forward, rather than continuing to use the legislative process that we’re using today? Thank you, minister.
We know the collective bargaining process is extremely important. It’s critical for unions that they have the right to strike.
We are in a situation where, at the end of the day, you end up with one party or another unhappy with the way this gets resolved. There are opportunities for us to look ahead. The challenge will be to get both parties onside with whatever mechanism put in place, or with any improvements that can be made to the system so that both parties have their rights preserved and the opportunity to give whatever input or negotiate as strongly as they are able and to feel that the process is fair. If we can get to the point that would help prevent situations like this, I think that is something we could absolutely look at, but the key will be — and I think this is the part that is going to be a challenge — for both parties to be fully in agreement and supportive of the process and feel their rights aren’t being compromised.
Somebody else might have already raised this, but in relation to the resumption of operations, unless there has been a change, I think the bill mandates that workers must resume operations one minute after midnight of the day following Royal Assent. I think the Canada Post back-to-work legislation provided noon of the next day.
I’m wondering whether consideration has been given to whether the port, both workers and management, could actually resume operations as quickly as has been demanded in this legislation.
You are correct that the proposed legislation indicates that there would be a resumption upon coming into force. Yes, we have indicated at the very end of the bill that the coming into force would be the first minute of the next day. As indicated by the representative for the MEA, actually what it would mean is that the minute the bill comes into force and the parties need to resume their operations, the MEA would be paying their employees under the provisions that used to apply; the clause that the union had been indicating had been taken away.
The employees would be asked to resume, as and when the work would be needed from them. So they would be paid and we would need to bring them in as the ships come in and the port is able to bring them into the workspace to unload the vessels.
I have a question for the Honourable Minister of Labour and then the Minister of Transport. Minister, I would like to follow up on the question Senator Plett asked earlier because I’m not sure that you were clear. The question is: How many times did you brief the Prime Minister on the situation at the Port of Montreal prior to the current strike?
In answer to that, I would say that I can’t reveal discussions at cabinet. I can’t really speak directly in terms of that question, but I will say that my team worked very closely with the Prime Minister’s Office so that the Prime Minister was always kept apprised of the situation at the port, in which he takes a very keen interest.
Thank you for that. I certainly wouldn’t ask you to betray cabinet confidences and thanks for that answer.
Further to that, I would like to ask you, did the Prime Minister, as a result of briefings obtained through your office with his staff, did he do anything regarding this file other than fielding calls from concerned stakeholders?
I think that question has to be put to the Prime Minister. What I would say is I know that he had a conversation with the premier, and I know that he had conversations with stakeholders. The extent of those conversations and the number, I can’t respond to the specifics on those. But I know that those conversations took place, yes.
Thank you. To the Honourable Minister of Labour, in talking about our vital transportation network in Canada, ports are critical infrastructure and Canadians, of course, count on a steady and reliable maritime transport system. I will mention that is especially true in a region like mine, Nunavut, in the North, which is significantly dependent on annual resupply from southern ports and particularly Montreal and Quebec.
Minister, my question is this: In light of the protracted problem that we have all been forced to deal with today, don’t you think the government should ensure that a situation like what we have in Montreal never happens again? Specifically, will you consider measures to make sure essential services like port services are maintained?
As I said previously, there is a process with respect to the essential service piece. The Canada Industrial Relations Board is the board that hears that. Both parties at the table have the ability to go to that board and to make the case, and that board makes a decision based on evidence that’s independent. That process is already in place to ensure the movement of essential goods continues.
Senator, if I may add to this, to your point about the importance of our port infrastructure, I want to echo that and say we totally agree, and it’s really important to continue to expand and build on our existing infrastructure. That’s why, in the budget that was announced 10 days ago, we have a $2-billion fund for national trade corridor. That, by the way, includes a section for northern infrastructure, which will also help regions like yours.
That’s music to my ears. Thank you, minister. I hope it materializes.
Further to the Honourable Minister of Transport, your deputy talked about the negative impacts on the integrated transportation system around the Port of Montreal and diversion to American or other ports. I know Mr. Keenan gave a response. I’m wondering if your department has done an analysis of these impacts that could be provided, tabled in the Senate?
Thank you very much, Senator Patterson. Transport Canada has done an economic impact assessment on the impact to our economy and our transportation sector, so I will certainly ask our officials if there is something that we can table with you.
Many of my questions have already been asked. However, I’d like to come back to subclause 6(1) of the bill. The union representative who appeared before us indicated that, if the union members were given the assurance that their working conditions would go back to what they were on April 9, 2020, then they would end their strike.
They asked us to amend the bill and add items to subclause 6(1) in order to ensure that the working conditions that were in place on April 9, 2020, would be maintained in the event that they were forced back to work.
I know that it is always difficult to make an amendment and that it means additional costs and going back to the negotiating table. Could you ensure that the collective agreement that was in effect on January 1, 2019, is maintained until an agreement is reached? The spirit of the law involves ensuring that the working conditions that were in effect on April 9, 2020, will be maintained if this bill is passed.
This bill is a bit difficult to swallow. It is always preferable to negotiate an agreement. This bill may seem to somewhat favour the employer rather than the union. If the legislator provided for the maintenance of the working conditions in effect on April 9, 2020, that would no doubt facilitate the negotiations and the passage of the bill. I’d like to know what you think about that.
Thank you for your question, senator. If the bill comes into effect, clause 6 will ensure that the collective agreement applies once again. Consequently, the job security provision, which was one of the provisions the union spoke of, would apply under clause 6.
Furthermore, the second provision that’s been changed is the one relating to shift work. This provision of the collective agreement allows making changes to shifts. The Maritime Employers Association indicated in their testimony this afternoon that they would agree to return to the conditions that were in place at the beginning of April. Therefore, given that the employers’ representative has said that they were prepared to return to the previous shift work arrangement, there would be no more need to amend clause 6.
When the union asked you to amend it earlier, since they appeared before the employers’ representatives, they didn’t know that the employer would say, in answer to your question, that they would accept this request, which is an important one.
I would like to thank you both for being here today, Minister Tassi and Minister Alghabra.
I just got back from the Finance Committee, so if the question has been asked or responded to, I do apologize, but I am from Montreal, and I did want to put this question about this important bill we are looking at.
I’d like to revisit some of the numbers you provided in the other place earlier this week or moments ago. You mentioned that the current work stoppage affects more than 19,000 direct and indirect jobs associated with transit through the Port of Montreal, and it would affect the jobs of up to 250,000 employees in Montreal and 273,000 workers in Ontario employed in the production of shipping container products.
Can you share with us how you came up with these numbers? Some have argued that the current strike is costing the economy between $10 million and $20 million a day. How accurate are these figures? Do these amounts line up with your department’s projections of the impact of the strike on the economy?
Thank you, Senator Loffreda. I’ll start and then I’ll allow Transport to step in.
In terms of the estimates I have said in the other place, you’re absolutely right. It is 19,000 direct and indirect jobs at the port.
The other figures you mentioned — the 250,000 employees in Greater Montreal and the 273,000 workers in Ontario — are in a letter that was written to me by a number of ministers from both Quebec and Ontario, and they stated in that letter that these are the numbers of potential jobs that may be impacted, asking our government to take action so that these jobs not impacted. The numbers are between $40 million and $100 million in loss a week.
I will now turn it over to Transport to provide further details, if they have them.
Thank you, Minister Tassi, and thank you, senator, for your question.
Let me give some examples to highlight how these jobs are impacted. For example, a forestry company that is selling forestry product to Europe and now is unable to ship its product; not only are they at risk of losing the sale permanently because those customers will end up finding other suppliers — and those suppliers, by the way, may not be in Canada — as they pile up inventory, they could end up laying off their workers because their inventory has piled up, and they no longer need workers to produce products because they have excess inventory.
Another example is an automotive parts maker that is waiting for products to come in. As you know, the auto sector works just in time, so if products are late, that could end up with layoffs of workers at the parts plant that is waiting for these products. Because these products are not arriving, they have to suspend manufacturing at their plant.
Those are examples of the impact. I can also say that we measured and gauged what happened last August with the strike at the port. We saw the impact it had on workers and the economy, and we can easily extrapolate what it would cause now. As a member of Parliament from Ontario, I heard from businesses in my region who were impacted when the Port of Montreal strike took place last summer.
Thank you for the answers. The strike that took place last August had a devastating impact on many businesses. We know that wholesalers lost close to $600 million in sales, and it took three months to clear the backlog of products at the port.
I have two questions. First, out of this $600 million in lost sales, how much of this was absorbed by Canadian firms or companies?
Second, beyond anecdotal stories, is there any hard data or evidence that shows the impact the strike in August had on small- and medium-sized enterprises and the various supply chains? What was the ripple effect on the economy, and to what extent did this data influence the government’s decision to legislate a return-to-work order?
Thank you, senator. The cost that the economy incurred last August was absorbed by the economy and was technically absorbed by the small- and medium-sized enterprises, or workers who had been impacted by this slowdown or interruption.
To answer your question specifically, yes, the data that we have is that 40% of small- and medium-sized businesses in Quebec were impacted by last summer’s interruption. That’s 40%. Four out of 10 businesses felt the impact at different levels depending on where they are in the supply chain, but 4 out of 10 businesses felt the impact of the strike.
If I can add, and then we should hear from Deputy Minister Keenan. You have to also appreciate that for these small businesses, it’s a huge hit. A container could be their whole investment. We also have to realize that. Small business has been hard hit.
Deputy Minister Keenan, do you have anything else that you would like to add?
Thank you, minister. You and Minister Alghabra answered that. I will add one point, which is that because of the stress that the freight supply chains are under and due to their interconnected nature — and the senator has already observed this — we saw the strike in August had an effect that went well into autumn. There was a longer tail on the economic cost and dislocation from the work stoppage in August than you would normally expect, and it’s a reflection of the fact that there is no slack in the freight supply chains right now.
We’re seeing that now in terms of the impact that’s come from the latest round of work interruptions. There has been some diversion. For example, a couple of container ships have gone to Halifax and Saint John and many shippers have tried to go through New York. But for the ones that are going through New York, even if they can get their containers to New York, they can’t get them to Toronto because they can’t get through Chicago. The intermodal hubs at Toronto and Chicago have been disrupted because of the effects of the Montreal strike. For example, the railways have basically stopped their intermodal trains between Toronto and Montreal and Chicago and Montreal. As a result, there are businesses in Canada who have products that are being adversely affected by the Port of Montreal job action, even though it’s with respect to products that were never meant to touch the Port of Montreal.
This is a reflection of why there’s an outsized economic impact right now, because of the stress the container supply chain is under due to COVID disruptions.
Thank you. My next question is focused on the transportation of goods, and it may be a yes-or-no answer given the time constraint. Did the government prepare a contingency plan beyond this back-to-work legislation to help businesses move their products? In other words, assuming Bill C-29 was not before us and in the event of further disruptions, how would businesses have to adapt to make sure their products reached clients? Were trains or freight transportation ready to move products? Were other ports able to compensate with short notice? What role could the federal government have played to facilitate the movement of goods and supplies?
Thank you, senator. The short answer is that, yes, we are examining options, but options are limited, to be honest with you, senator. We are limited by the existing infrastructure. That’s why we’re big proponents of investing further in our infrastructure to expand ports and rail capacity, but the options are limited. We’re certainly doing everything we can — and we did that in the last strike — to facilitate other means.
Minister Tassi and Minister Alghabra, on behalf of all senators, thank you for joining us today to assist us with our work on the bill. We would also like to thank your officials for helping us. Thank you and keep safe.